This article is written by Anusha Misra from NALSAR University of Law. This article looks into the rights of slum dwellers by analysing the case of Olga Tellis and Ors. v. Bombay Municipal Council.
It has been more than three decades since a Supreme Court Constitution Bench decided in favour of the pavement dwellers in India’s numerous metro cities (Olga Tellis & Ors v Bombay Municipal Council ). The verdict required the authorities to offer slum inhabitants alternative housing if their shantytowns were razed. However, the inhumane destruction and eviction of almost 1,000 people in Delhi’s Shakur Basti slum revealed that the authorities are not implementing or considering the Supreme Court’s ruling.
During the monsoon of August 1981, the then Maharashtra Chief Minister, the late AR Antulay, requested that the Bombay Municipal Corporation remove all the pavement dwellers in Mumbai. A human rights organisation (People’s Union for Civil Liberties) took up the cause before the Bombay High Court, claiming that demolishing the homes of destitute pavement dwellers was heartless. The Indian political establishment has focused solely on urban growth, giving little or no attention to the villages and small towns that have been left to fend for themselves.
Thousands of people seeking better economic possibilities have flocked to India’s urban areas due to a lack of employment options, as well as poor education and health services. Another reason for migration to the city and an increase in the ranks of the urban poor is land acquisition for big projects. The Mahatma Gandhi National Rural Employment Guarantee programme, which was designed to provide 100 days of work to the rural poor, is said to deliver an average of roughly 35 days of labour; the daily income guaranteed is low, typically less than the plan’s Rs 200. This is another example of various governments’ discrimination and neglect of the people of rural India.
Looking for a better life
People from rural areas all over the country flock to the “thriving” cities for a living and the very basic needs of three square meals and a roof over their heads because of such inhumane conditions. In an urban city where housing prices are soaring and even the wealthy are struggling to keep up, pavement dwellers are forced to live in deplorable conditions to make ends meet. They look for housing that is close to their place of employment; they are the city’s backbone, offering roadside eatables, housemaids and assistance, dhobis or drivers, and so on. They do not receive any subsidies and do not ask for any from the government. However, government officials across the country, including those in Mumbai, have continued to be ruthless in demolishing slums and homes in other areas without providing alternative housing, in contravention of the judgement. Medha Patkar, a well-known social activist, has been fighting an uphill battle for the urban poor who live on streets and other public spaces, but in vain. The authorities have fallen foul of the SC ruling on many occasions.
The government’s cold-blooded demolition of Delhi’s Shakur Basti is the latest in a long line of horrific deeds. Worse, Union Railway Minister Suresh Prabhu delivered a remark in Parliament. He is quoted as remarking that “such encroachments are the main cause of waste and open defecation, etc.” The 1,000 individuals who had their homes bulldozed so indiscriminately had lived in Shakur Basti for nearly 15 years and had all of the necessary identification certificates. The official (railway minister’s) argument was made worse when Prabhu stated that the railways lacked land to rehabilitate slum people.
Before swooping down on the slum inhabitants, Prabhu’s railway employees did not even bother to inform them of the destruction. The railways and the Aam Aadmi Party have both made accusations and counter-claims concerning the demolition. The truth remains, however, that the Shakur Basti households were not notified of the demolition.
The destruction took place during the hard winter months in Delhi, and the Delhi High Court has already questioned the haste and logic of the demolition without providing alternative housing for the elderly, women, and children. They were literally left out in the open to succumb to the freezing temperatures. The Court declared the act “inhuman” and ordered the railways to devise a strategy to rehabilitate the Shakur Basti. These migrants came from Bihar’s economically depressed rural districts, where there were few or no job possibilities since many of the state’s chief ministers were preoccupied with other concerns, sometimes feathering their own nests while doing little or nothing to help the state’s rural people. All individuals who travel to Delhi and Mumbai to live in horrible conditions are economic migrants who have been victims of both corruption and non-development in their native states. They hope to seek justice in the courts for the harsh treatment they have received as a result of arbitrary evictions. They are awaiting alternative housing and appropriate rehabilitation, which is a logical demand deriving from their predicament.
Only when our courts develop a full comprehension of the general ground level reality affecting large segments of India’s urban poor will substantive justice in human terms be achieved.
The Pavement Case : importance and nature
The right to life includes the protection of one’s means of subsistence; obligations to provide natural justice prior to eviction, but no automatic right to resettlement under Indian law.
The Maharashtra government and the Bombay Municipal Council agreed in 1981 to expel all pavement and slum residents from the city of Bombay. Residents complained that evictions would be a violation of their right to life because a residence in the city allowed them to work, and requested that suitable resettlement be given if the evictions went forward. The Court did not grant the applicants’ desired remedies but did find that the applicants’ right to a hearing had been infringed at the time of the scheduled eviction. The Court held that Article 21 of the Constitution’s right to life included the right to work because “it would be sheer pedantry to exclude the right to livelihood from the content of the right to life” if ” the State has an obligation to secure to citizens an adequate means of livelihood and the right to work.” However, the right to a living was not absolute, and deprivation of the right to a livelihood might occur if a legal procedure was followed in a just and fair manner.
The government’s action must be reasonable, and everybody who is affected must be given a chance to speak up about why such action should not be implemented. The people in this instance were given the opportunity to be heard as a result of the Supreme Court procedures, according to the Court.
Despite the fact that the occupants had no intention of trespassing, they believed it was legitimate for the government to remove persons living on public sidewalks, footpaths, and roadways. The evictions were supposed to be postponed for a month after the rainy season ended (October 31, 1985). The Court, on the other hand, did not conclude that evicted residents had a right to a new home, instead of issuing orders that stated that:
- Sites should be provided to residents presented with census cards in 1976.
- Slums in existence 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.
- High priority should be given to resettlement.
How has this path-breaking decision been enforced?
The pavement dwellers were evicted without resettlement. Many subsequent judgements have confirmed the grounds in this case since 1985, frequently leading to large-scale evictions without resettlement. In the Narmada Dam case (2000), for example, appropriate resettlement was ordered, but the majority of evictees were not effectively resettled, and the majority of the Court neglected to investigate the extent to which their ruling was enforced.
Significance of the Case
The case sparked a lot of interest in the struggle for housing as a basic human right. This case is frequently cited as an example of how civil and political rights can be used to advance social rights, but it is also considered problematic because it does not include a right to relocation. It also contradicts recent developments in other jurisdictions, where courts have established stronger resettlement rights. This more humanitarian consideration affected the Supreme Court’s decision in the case of Olga Tellis. In 1985, a five-judge bench of the Supreme Court determined this case. Olga Tellis filed a writ petition on behalf of Bombay’s pavement dwellers, which was heard by the Supreme Court.
The city of Bombay’s pavement dwellers accounted for about half of the population. The decision of the respondents which meant that all slum dwellers and pavement dwellers in the city of Bombay would be evicted forcibly and deported to their respective areas of origin, prompted the filing of this writ suit. In reality, the Bombay Municipal Corporation demolished some of the petitioners’ pavement houses as a result of that ruling. The petitioners argued that the Bombay Municipal Corporation’s eviction decision was irrational and unjust because it did not provide for alternative housing arrangements.
Furthermore, they asserted that their “right to livelihood” is a necessary component of their “right to life” as guaranteed by Article 21 of the Constitution. The petitioners further claimed that the Bombay Municipal Corporation Act, 1888 violated Articles 14, 19, and 21 of the Indian Constitution. As a result, the petitioners requested that the eviction order be overturned and that they be allowed to remain on the sidewalks. On behalf of the bench, Chief Justice Y.V Chandrachud delivered the majority judgement.
Issues in the case
The main issues which were considered by the Court, in this case, are as follows:
- Whether the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act, 1888 for the removal of encroachment from pavements is/was arbitrary and unreasonable?
- Whether the order of eviction is/was the infringement of the petitioners ‘right to livelihood’ and in turn ‘right to life’ guaranteed under Article 21 of the constitution?
- Whether the impugned action of the state government and the Bombay Municipal Corporation is/was violative of Article 19(1)(g) and 21 of the Constitution?
The Supreme Court’s decision, in this case, has had a significant impact in this field of law. The eviction orders were upheld under Articles 14 and 19 of the Constitution, but the right to life was expanded to include the right to livelihood under Article 21 of the Constitution. The defendants (Bombay Municipal Corporation) must provide alternative shelter to the petitioners before they are evicted from the pavements, according to the Court. The Court held that the respondents (Bombay Municipal Corporation) must provide alternative shelter to the petitioners before eviction from the pavements.
The Court was forced to write out conditionalities and due process before eviction because of the enormous number of petitioners (slum dwellers and pavement dwellers) in this class action. This was despite the fact that there is a specific statute that allows for the expulsion of such slum and pavement residents (Bombay Municipal Corporation Act, 1888). The Bombay Municipal Corporation Act, 1888, deals with the prohibition on habitation and the disposal of various goods on the pavements by residents.
Although the petitioners were trespassing on public property and pavements without permission, the Court held that they were not “criminal trespassers” under Section 441 of the Indian Penal Code, 1860 because their goal or reason for doing so was not to commit an offence or to intimidate, insult, or annoy anyone. Instead, they are/were forced to do so by unavoidable circumstances, and they are not guided by choice. Many of these results would be useful in determining whether or not proper procedures were followed prior to and during the demolitions of Shakur Basti and Balegaon in Delhi in October and December 2015.
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