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This article is written by Sri Vaishnavi.M.N., a first-year student of Damodaram Sanjivayya National Law University, Vishakapatanam. In this article, she analyzes the Olga Tellis v. Bombay Municipal Corporation.

Facts of the case

  1. In Olga Tellis v. Bombay Municipal Corporation [1], the state of Maharashtra in 1981 and the Bombay Municipal Corporation decided to evict the pavement dwellers and those who were residing in slums in Bombay.
  2. Pursuant to that, 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.
  3. The eviction was to proceed under Section 314 of the Bombay Municipal Corporation Act 1888.
  4. On hearing about the Chief Minister’s announcement they filed a writ petition in the High Court of Bombay for an order of injunction restraining the officers of the State Government and the Bombay Municipal Corporations from implementing the directive of the Chief Minister.
  5. The High Court of Bombay granted an ad interim injunction to be in force until July 21, 1981. Respondents agreed that the huts will 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.
  6. 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.

Issues involved

The issues which were considered by the Hon’ble Supreme court, in this case, were as follows:

  • Question of Estoppels against fundamental rights or Waiver of Fundamental Rights?
  • Scope of right to life under Article 21 of the Constitution?
  • Constitutionality of provisions of Bombay Municipal Corporation Act, 1888.
  • Whether pavement dwellers are “trespasser” under IPC.

Arguments

Respondent

Defence counsel stated that the pavement residents had admitted to the High Court that they did not claim any basic right to install cabins on sidewalks or public roads and that they would not prevent their demolition after the scheduled date.

Observations of the Court

There can be no depreciation of the Constitution or renunciation of fundamental rights.

The court said: “No individual can trade the freedoms that are conferred on him by the Constitution. A concession made by him in a proceeding, whether by an error of law or otherwise, that he does not possess or assert a particular fundamental right, cannot create an estoppel against him in this proceeding or in any other subsequent procedure. Such a concession, if implemented, would run counter to the purpose of the Constitution.

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 and that he would be deprived of his livelihood if he were expelled from his slums. and its sidewalks, which would amount to a deprivation of his rights. life and therefore unconstitutional.

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Court observed

“The right to life conferred by section 21 is vast and far-reaching. It does not simply mean that life can be extinguished or removed only in accordance with the procedure established by law. This is just one aspect of the right to life. The right to livelihood is an equally important aspect of this right because no one can live without means of subsistence.

If the right to subsistence is not treated as part of the constitutional right to life, the easiest way to deprive a person of their right to life would be to deprive them of their means of subsistence to the point of repealing. Such deprivation would not only negate the life of its content and meaning but render life impossible.

However, the Court added, such deprivation should not necessarily be in accordance with the procedure established by law if the right to livelihood is not considered to be part of the right to life. Deprive a person of his right to a means of subsistence and you will have deprived him of his life. In light of Article 39(a) and 41, it would be pedantry to exclude the right to livelihood from the content of the right to life.”

Petitioner argued that the procedure prescribed by Section 314 of the 1888 Act to eliminate encroachment on the sidewalk is arbitrary and unreasonable, since not only does it not provide for notification prior to the elimination of encroachment, but it also provides that The municipal commissioner can ensure that the encroachment is removed “without notice”.

Court held

The Constitution does not provide for an absolute embargo on the deprivation of life or personal liberty. Under Article 21, such deprivation must be in accordance with the procedure established by law. Section 314 has the character of an enabling provision and not of a compulsive nature.

It gives the Commissioner the discretion to remove an encroachment with or without notice. It is designed to exclude the principles of natural justice by exception and not as a general rule. Sections 312(1), 313(1)(a), and 314 empower the Commissioner of Municipalities to stop encroachment on trails where the public has the right to pass, can not be considered unreasonable, unjust or unjust.

Chinnappa Reddy, J. Said:

In our view, the principles of natural justice do not have a rule of exclusion depending on whether it would have made a difference if natural justice had been respected. Failure to respect natural justice is in itself prejudice to any man and proof of harm, regardless of the evidence of a denial of natural justice, is unnecessary. It will come from a person who has denied justice that the person denied justice is not harmed.

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 who commit a crime?

Court observed

Who does not commit a crime in this city? There is no question that petitioners use sidewalks and other public property for unauthorized purposes, but their intent or purpose is not to “commit an offence or to intimidate, insult or bother anyone “the offence of criminal intrusion provided for in Article 441 of the Criminal Code.

The encroachments committed by these people are involuntary acts in the sense that these acts are forced by unavoidable circumstances and are not guided by choice. The intrusion is a crime.

However, even the right of wrongs stipulates that even if an intruder may be forcibly evicted, the force used must not be greater than is reasonable and appropriate to the situation and, more importantly, must be sought. to the intruder and be given the opportunity to leave before the force is used to expel him.

Ratio Decidendi

Article 39 (a) of the Constitution, which is a guiding principle of State policy, states that the State shall give particular attention to its policy with a view to ensuring that citizens, both men and women, have the same right to a means of livelihood.

Article 41, which constitutes another guiding principle, stipulates that the State must, within the limits of its economic capacity and its development, effectively guarantee the right to work in the event of unemployment and undeserved desires. Article 37 states that the principles of the Directive, although they can not be applied by any court, are nevertheless fundamental in the governance of the country.

The principles set out 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 the right to work, it would be quite irreproachable to exclude the right to subsistence from the content of the right to life.

The State can not, 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 in accordance with the just and fair procedure established by law, may challenge deprivation as a violation of the right to life conferred by Article 21.

Obiter Dicta

While summarizing the case of the petitioners, the main argument of their argument is that the right to life guaranteed by Article 21 includes the right to a means of subsistence and that they will be deprived of their livelihood if they are expelled from their slums and their sidewalks. their expulsion would amount to a deprivation of life and is therefore unconstitutional.

For the purpose of discussion, we will assume the factual accuracy of the premise that if the petitioners are expelled from their homes, they will be deprived of their means of subsistence. In this case, the question we must consider is whether the right to life includes the right to a means of subsistence. We see only one answer to this question, namely that this is the case. The right to life conferred by article 21 is vast and far-reaching.

This does not simply mean that life cannot be extinguished or removed, for example by imposing and executing the death penalty, except in accordance with the procedure established by law. This is just one aspect of the right to life. The right to livelihood is an equally important aspect of this right because no one can live without the means to live, that is to say, the means of subsistence.

If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live.

And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life.

Depriving a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which made the people retire from their homes in the villages that struggle for survival, that is the struggle for life.

So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey that the right to work is the most precious liberty because it sustains and enables a man to live and the right to life is a precious freedom.

“Life”, as observed by Field, J. in Munn v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.

Decision

Although the Court refused to conclude that the expelled inhabitants were entitled to an alternative site, it ordered that:

  1. No one has the right to encroach on trails, sidewalks or any other place reserved for public purposes.
  2. The provision of section 314 of the Bombay Municipality Act is not unreasonable in the circumstances of this case.
  3. Sites must be provided to censored residents in 1976.
  4. 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.
  5. High priority should be given to resettlement.

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

Outcomes

The inhabitants of the causeway were expelled without relocation. Since 1985, the principles, in this case, have been affirmed in many subsequent decisions, often leading to large-scale evictions without resettlement. For example, in considering the extent to which their judgment was executed.

Articles

A GUIDE TO FINDING A RIGHT TO SHELTER FOR THE HOMELESS, by John H. Whitfield [2]:

In this article, the author began by defining the causes of homelessness. He described the lack of low-income housing; high unemployment rates are the causes of homelessness. According to him, laws on vagrancy, vagrancy laws and local zoning are the problems that add insult to injury. He then referred to certain national laws and jurisdictions in order to establish a right and right of refuge based on international law. According to him, many homeless people will continue to live on the streets until the government offers them a viable alternative.

THE UNTENABLE CASE FOR AN UNCONDITIONAL RIGHT TO SHELTER, by ROBERT C. ELLICKSON [3]:

In this article, the author has presented the three important approaches to social protection rights, which

  • The non-social approach,
  • The conditional welfare approach and,
  • The unconditional wellbeing approach.

He then focused on trends in housing conditions in the United States. He then spoke of the granting by the Thirteenth Amendment of personal ownership of labour and constitutional amendments which widely distribute wealth.

He stated that “our political system was reluctant to expressly recognize a right to housing and a right to a minimum income and other similar rights when, for more than a century, it had guaranteed the ownership of its workforce. and the right to education. The essential reason is both simple and obvious: the proposed fees tend to discourage work while existing rights tend to encourage it. “

PROBLEMS OF SHELTER, Shelter in Developing Countries, by ALFRED P. VAN HUYCK [4]:

The author stated that housing or shelter is a human right and discussed the role of law in defining housing as a human right. He spoke of the Vancouver Declaration, a call for government action and support from international donors to improve the housing conditions of the world’s poorest citizens.

He felt that no government has been able to respond to this definition of housing as a human right. Even the two countries that are most often cited as models, Singapore and Hong Kong, have not achieved this goal despite huge expenditures made possible by their unique situation as city-states.

Summary

In 1981, the state of Maharashtra and the Mumbai City Council decided to expel all residents from the pavement and slums of the city of Bombay. The inhabitants claimed that such an action would violate the right to life since housing in the city allowed them to earn a living and required adequate resettlement if the evictions took place.

The court refused to provide the reparations sought by the applicants but found that the right to a hearing had been violated at the time of the deportation. The Court held that the right to life, as set out in Article 21 of the Constitution, included means of subsistence, for while it was an obligation for the State to provide citizens with adequate means of subsistence and the right to work, it would be pure pedantry.

Exclude the right to subsistence from the content of the right to lie. However, the right to a means of subsistence was not absolute and deprivation of the right to livelihood could occur if a fair and equitable procedure was initiated in accordance with the law. Government action must be reasonable.

Anyone affected by the action of the Government must have the opportunity to be heard on the reasons why this action should not be taken. In this case, the Court found that the proceedings before the Supreme Court allowed the residents to be heard. Although the residents clearly have no intention of intruding, they concluded that it was reasonable for the government to expel people living on sidewalks, trails and public roads. Expulsions were to be delayed until one month after the monsoon season (31 October 1985). The Court declined to conclude that the expelled inhabitants were entitled to another site but ordered that:

  1. The sites be provided to residents with census maps in 1976;
  2. Slums existing for 20 years or more were not to be removed unless the land was required for public purposes and, in this case, alternative sites were to be provided;
  3. High priority should be given to resettlement.

Suggestions

Following this decision, there were national discussions, meetings and agitations. The then-Rajiv Gandhi-led government overturned the decision in the Shah Bano case through the Muslim Women (Right to Protection on Divorce) Act, 1986 , which restricted the right of a Muslim woman the interview provided for in Section 125 of the Code of Criminal Procedure. The Supreme Court had simply made an observation for the adoption of the Uniform Commercial Code, which did not bind either the government or the Parliament, and that there should be no interference in the laws of the person unless the request came inside.

Reference

  1. 1986 AIR 180, 1985 SCR Supl. (2) 51.
  2. 9MissCLRev295.pdf
  3. 15HarvJLPubpoly17.pdf
  4. 34HowardLJ65.pdf
  5. M.P.Jain, “Indian Constitutional Law” Fifth Edition 2008, Wadhwa and Company, Nagpur.
  6. J.N.Pandey, “The Constitution Law of India” Forty Fifth Edition 2008, Central Law Agency, Allahabad.
  7. Ramaswamy Iyer’s ‘Law of Torts’ 7th Ed.
  8. Salmond and Heuston, ‘Law of Torts’, 18th Ed.

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