Author: Prasun Sarkar, School of Law, KIIT University.
BENCH: C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D. Tulzapurkar.
Ms Olga Tellis
Bombay Municipal Corporation
Date of Judgment: 10th July 1985
On 13th July 1981 the then Chief Minister of Maharashtra, A.R. Antulay made an announcement regarding the street and pavement dwellers saying that all such people living on the streets of Mumbai will be evicted forcibly and deported to their respective places of origin or at a place outside the city of Mumbai. The Chief Minister directed the Bombay Municipal Corporation to demolish the pavement dwellings and deport the pavement dwellers. Sections 312(1); 313(1)(a) and 314 of Bombay Municipal Corporation Act of 1888 empowers the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a right of passage or access. The discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. Pursuant to that decision, pavement dwellings of some of the people were demolished. A number of petitions were filed in retaliation to the decision taken by the State Government of Maharashtra. One of the petitioners, a pavement dweller P. Angamathu migrated from Salem Tamil Nadu to Bombay in search of employment. On July 23 1981 his pavement dwelling was demolished by the officers of Bombay Municipal Corporation. He and his family members were put into the bus for Salem. His family was sent back but he stayed and got into the pavement dwelling once again. Along with the above, various other writ petitions were heard along with the petitions of pavement dwellers. Other petitioners included the People’s Union of Civil Liberties and the Committee for the Protection of Democratic Rights. There were a total of 12 petitions filed. One such petition was filed by a journalist, Ms. Olga Tellis. The petitioners challenged the order of eviction to be unreasonable and unjust without providing any alternative living facility for the dwellers living on the streets. The petitioners claimed the right to livelihood as a part of their right under Article 21 of the Constitution that is right to life under Article 32. Moreover, petitioners contended that Sections 312, 313 and 314 of the Bombay Municipal Corporation Act are invalid as violating Articles 14, 19 and 21 of the Constitution of India.
- Was the order of eviction of pavement the infringement of their right to livelihood and in turn the encroachment over their right guaranteed under Article 21 of the Constitution?
- Whether the impugned action of the State Government and the Bombay Municipal Corporation is in violation of the provisions contained in Articles 19(1) (3), 19(1) (g) and 21 of the Constitution?
- Whether the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act, 1888 for the removal of the encroachments from the pavements is arbitrary and unreasonable?
The Supreme Court said that just because the petitioners conceded in the High Court of Bombay that they did not claim any fundamental rights to put up the pavements on public roads, they are not stopped from contending that the huts constructed by them on the pavements cannot be demolished. The Court further said that it is not possible to accept this contention. It said that the Constitution of India is the supreme authority in the country. There can be no estoppel against the Constitution. It is the paramount law of the land. Therefore the court decided that even if the petitioners said that they did not want to enforce their fundamental right to construct hutments on pavements still they are entitled to assert that any such action on the part of the public authorities will be in violation of the fundamental rights. The Court said that the petitioner’s case which said that right to livelihood should be included in the right to life because if they are evicted from their slum and pavement dwellings they will be deprived of their means of livelihood which would tantamount to their deprivation of the right to life and hence it would be unconstitutional stands true and Article 21 does include the right to livelihood. The Court said the case of Olga Tellis they were of the opinion that the procedure prescribed by the Section 314 of the Bombay Municipal Corporation Act, 1888 the removal of encroachments on the footpaths or pavements over which the public has the right to passage or access cannot be regarded as unreasonable, unfair, unjust. The Court further said that footpaths and pavements are public properties which are intended to serve the convenience of the general public. Therefore the court held that no person has the right to encroach any place reserved or embarked for the public purpose and that the provision contained in Section 314 of the Bombay Municipal Corporation Act is not unreasonable. The Court looking into these circumstances ordered that the dwellers be evicted for a period of one month. The state was also directed to give alternate accommodation to certain dwellers. This was not a condition precedent for eviction and was merely to give effect to certain earlier assurances by the government.
Article 21 is said to be the heart of the Constitution, the most organic and progressive provision in our living constitution and also the foundation of our laws. Article 21, gives a person a right to live and personal liberty. Hence the ambit of this article is very wide and comprehensive. The Supreme Court in other landmark judgments has tried to define the ambits of this article. In Kharak Singh v. State of Uttar Pradesh, the apex court laid down that the term ‘life’ refers to more than mere animal existence. In Sunil Batra v. Delhi Administration it was reiterated by the Supreme Court that the right to live includes the right to live a healthy life along with enjoying all the facilities of a human body. In the famous passport case, Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to this article saying that right to life also includes a right to live with dignity.
In this case, as well the Supreme Court diversified its interpretation of Article 21 and said that the right to livelihood is also a part of the right to life. Justice Chandrachud in his judgment stated that an equally important facet of right to life is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. The court gave its justification to this statement by analyzing the empirical data which showed that most of the dwellers chose a street or pavement in the vicinity of their place of work and for them to lose these pavements was to lose their job. The decision of the court also focused on the concept of the welfare state and reliance though not expressly but impliedly was placed on the Directive Principles of the State Policies under the constitution.
Olga Tellis brought the concept of Benthamite philosophy of Hedonist Utilitarianism. The principle of utility by Bentham stated that, out of various possibilities in a given case, one must choose that option that gives the greatest happiness to the greatest number of people. The Bombay Municipal Corporation Act, 1888 laid down the law relating to the pavement dwellers under section 312-314. It stated many prohibitions on the housing and depositions of various items on the pavements by the dwellers. Justice Chandrachud while deciding this case entirely followed the Principle of Utility and held that the end aim of the legislator should be catering to the masses and the general utility must be the guiding principle. An attempt was made by the apex court of the country to reform the defective parts of substantial law. The Supreme Court tried to balance between the happiness or the utility of the slum dwellers with the aim and object of the particular legislation that came to the conclusion that justice must be done only by giving the redressal to the poor and needy pavement dwellers.