This case analysis has been written by Pooja Lakshmi pursuing law at Bennett University
Writ Petition Nos. 4610-4612 & 5068-5079 of 1981
1986 AIR 180, 1985 SCR Supl. (2) 51
Chandrachud, Y.V. ((Cj), Fazalali, Syed Murtaza, Tulzapurkar, V.D., Reddy, O. Chinnappa (J), Varadarajan, A. (J)
Constitution of India, 1950: Articles 14, 15, 16, 19, 19(1), 21, 22, 25, 29, 32, 37, 39 and 41.
Indian Penal Code, 1860: Section 441.
Bombay Municipal Corporation Act, 1888: Sections 312, 313, and 314.
The case analysis of ‘Olga Tellis V. Bombay Municipal Corporation,’ discusses the case that came in front of the Supreme Court of India during 1985 as a writ petition. It was filed by pavement and slum dwellers in Bombay (now Mumbai), seeking to be allowed to remain on the pavements against their order of eviction during the monsoon months by the Bombay Municipal Corporation. Lawyers often cite the case to justify the eviction of tenants and slum dwellers.
Facts of the Case
In Olga Tellis v. Bombay Municipal Corporation, the State of Maharashtra in 1981, and therefore the Bombay Municipal Corporation decided to evict the pavement dwellers and people who were residing in slums in Bombay.
• According to it, the then Chief Minister of Maharashtra, Mr. A. R. Antulay ordered on July 13 to evict slum dwellers and pavement dwellers out of Bombay and to deport them to their place of origin.
• The eviction was to proceed under Section 314 of the Bombay Municipal Corporation Act 1888.
• On hearing about the Chief Minister’s announcement, they filed a writ petition within the High Court of Bombay for an order of injunction, restraining the officers of the state government and also the Bombay Municipal Corporations from implementing the Directive of the Chief Minister.
• The High Court of Bombay granted an ad-interim injunction to be effective until July 21, 1981. Respondents agreed that the huts would not be demolished until October 15, 1981. Contrary to agreement, on July 23, 1981, petitioners were huddled into State Transport buses for being deported out of Bombay.
• The respondent’s action was challenged by the petitioner on the grounds that it is violative of Articles 19 and 21 of the Constitution. They also asked for a declaration that Section 312, 313, and 314 of the Bombay Municipal Corporation Act 1888 is violative of Articles 14, 19, and 21 of the Constitution.
Brief Facts and Procedural History
This was a written petition filed under Article 32 of the Constitution. Olga Tellis, a journalist in conjunction with the PUCL and other organizations, questioned the eviction order approved by Mr. A.R. Antulay, the then Chief Minister of Maharashtra. The inhabitants of the pavement and also the public interest organizations affirmed that the eviction order of the inhabitants of the pavement violates the fundamental rights. The eviction deprives them, among others, of their fundamental rights enshrined in Article 19 and of the right to life guaranteed under Article 21.
In 1981, the State of Maharashtra, and therefore the Bombay Municipal Council decided to evict all pavement and slum dwellers from the city of Bombay. The residents claimed such action would violate the right to life since a home in the city allowed them to achieve a livelihood and demanded that adequate resettlement must be provided if the evictions proceeded. The Court declined to provide the remedies requested by the applicants but found that the right to a hearing had been violated at the time of the planned eviction. The Court held that the right to life in Article 21 of the Constitution, encompassed means livelihood since, “if there is an obligation upon the State to secure to citizens an adequate means of livelihood and therefore the right to work, it might be sheer pedantry to exclude the right to livelihood from the content of the right to life. However, the right to livelihood was not absolute, and deprivation of the right to livelihood could occur if there was a just and fair procedure undertaken according to law. The government’s action must be reasonable, and any individual affected must be afforded a chance of being heard as to why that action should not be taken. In the present case, the Court found that the residents had been rendered the opportunity of being heard by virtue of the Supreme Court proceedings. While the residents were clearly not aiming to trespass, they found that it had been reasonable for the government to evict those living on public pavements, footpaths, and public roads. The evictions were to be delayed until one month after the monsoon season (October 31, 1985). The Court declined to hold that evicted dwellers had a right to an alternate site but instead made orders that: (i) sites should be provided to residents presented with census cards in 1976; (ii) slums existing for 20 years or more were not to be removed unless the land was required for public purposes and, in that case, alternative sites must be provided; (iii) high priority should be given to resettlement.
Issues before the Court
Question of Estoppels against fundamental rights or Waiver of Fundamental Rights?
Scope of the right to life under Article 21 of the Constitution?
Constitutionality of provisions of the Bombay Municipal Corporation Act, 1888.
Whether pavement dwellers are “trespasser” or not under the IPC.
Petitioners – The council on the applicant’s behalf argued that the “right to life” guaranteed by Article 21 included the right to a means of subsistence which he would be deprived of his livelihood if he was expelled from the slums. Moreover, it is sidewalks that might amount to a deprivation of his rights—life and thus unconstitutional.
Respondent – On the question of natural justice, was it argued that this possibility of hearing should be given to whom? To the intruder who has encroached on public property Or to people that committed the crime?
Ratio of the Case
Article 39 (a) of the Constitution, a guideline of State policy states that the State shall give particular attention to its policy to make sure that citizens, both men, and women, have an equal right to means of livelihood.
Article 41, which constitutes another guideline, stipulates that the State must, within the bounds of its economic capacity and its development, effectively guarantee the right to work within the event of unemployment and unnecessary desires. Article 37 states that the principles of the Directive, although any court can not apply them, are nevertheless fundamental within the governance of the country.
The principles commenced in Articles 39 (a), and 41 must be considered as equally fundamental for understanding and interpreting the meaning and content of fundamental rights. If the State were obliged to provide citizens with adequate means of subsistence and therefore the right to work, it might be quite irreproachable to exclude the right to subsistence from the content of the right to life.
The State cannot, by positive action, be obliged to provide adequate means of subsistence or work to the citizens. However, anyone deprived of their right to a means of subsistence, except per the just and fair procedure established by law, may challenge deprivation as a violation of the right to life conveyed through Article 21.
Decision of the Court
Although the Court refused to conclude that the expelled inhabitants were entitled to an alternative site, it ordered that:
No one has the right to encroach on trails, sidewalks, or any other place reserved for public purposes.
The provision of section 314 of the Bombay Municipality Act is not unreasonable in the circumstances of this case.
Sites must be provided to censored residents in 1976.
Slums existing for 20 years or more should not be removed unless the land is required for public purposes and, in this case, alternate sites must be provided.
High priority should be given to resettlement.
In the case of the Narmada Dam, adequate resettlement was ordered, but most of the evicted persons affected were not properly resettled, and the majority of the Court refused to do.
The judgment reflects the ‘Principle of Utility’ propounded by J. Jeremy Bentham. According to Bentham, happiness can be maximized, only if the instances of pain are lighter and fewer. The judgment delivered by the Hon’ble Court can be said as a replica of the idea embodied in the ‘Principle of Utility’. Slum and pavement dwellers constitute almost half of the total population of the Bombay. The Court ordered that:
- No one has the right to encroach on trails, sidewalks, or any other place reserved for public purposes.
- The provision of section 314 of the Bombay Municipality Act is not unreasonable in the circumstances of this case.
- Sites must be provided to censored residents in 1976.
- Slums existing for 20 years or more should not be removed unless the land is required for public purposes and in the present case, alternate sites must be provided to the required people.
- High priority should be given to the resettlements
The right to Life includes the right to Livelihood. This case is widely quoted as exemplifying the utilization of civil and political rights to advance social rights. Still, it’s also viewed as problematic, thanks to its failure to provide for the right to resettlement. It is also inconsistent with developments in other jurisdictions, where courts have found more substantial rights to resettlement. The pavement dwellers were evicted without resettlement. Since 1985, the principles, in this case, are affirmed in many subsequent decisions, frequently resulting in large-scale evictions without resettlement. The scope of the term “life” was extended and has also paved the way for the reform of substantive law.
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