IN THE SUPREME COURT OF INDIA
AIR 1986 SC 180
Olga Tellis and Ors.
Bombay Municipal Corporation and Ors.
Date of Judgement
Hon’ble Justice V Chandrachud, C.J,; Vardarajan; Chinnappa Reddy; Murtaza Fazal Ali and D. Tulzapurkar
India has witnessed a multitude of historical judgments that have evolved and made our Constitution of India an embodiment of justice, equality and good conscience. One of those judgments that broadened the horizons of the meaning of Fundamental Rights was Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, which embarked as a paradigm of the democratic government of the nation. The ruling recognizes the rights of the second generation as the pillars of the rights of the first generation, that is, the fundamental rights and confers the application of judicial activism as the judiciary acts as a mechanism to enforce the fundamental rights by placing yourself in the place of parliament to regulate government policies. The sentence tends to pave the way to broaden the scope of the right to life and give up the infraction unreasonably.
Background of the Study:
Article 21 of the Constitution is one of the main articles included in Part III of the Constitution of India that deals with fundamental rights. The fundamental rights listed in Part III are enforceable against the State as defined in Article 12 of the Constitution of India. In accordance with the provisions of Article 13, incompatible laws or in derogation of fundamental rights to the extent of such inconsistency or repeal shall be considered void. With regard to Article 21, it states that no person shall be deprived of his life or personal liberty, except in accordance with the procedure established by law. The questionable question is what is the correct connotation of the word “life”, as covered by that Article? Will it include the right to livelihood or the right to work or will it only connote bare physical existence?
If any procedural law can validly deprive any person of his life or personal liberty, he must comply with the following requirements: The procedure established by said law must be the result of the valid exercise of legislative power by the competent legislative authority. The relevant Articles that would govern the said law as provided in Article 21 and by the virtue of which the said law must be proved to be in consonance with Articles 14, 19 and 22 of the Constitution of India.
Constitutional and Statutory Provisions discussed:
- 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 State of Maharashtra in 1981 and the Bombay Municipal Corporation decided to evict the inhabitants of the pavement and those who resided in slums of Bombay. Accordingly, the then Chief Minister of Maharashtra, Mr. A. R. Antulay ordered on July 13 to evict the inhabitants of slums and pavements of Bombay and deport them to their place of origin. The eviction must proceed in accordance with Section 314 of the Bombay Municipal Corporation Act of 1888.
Upon hearing the announcement of the Chief Minister, they filed a court order petition in the Bombay High Court for a restraining order that prevented State Government officials and the Bombay Municipal Corporations from implementing the directive of the Chief Minister. The Bombay High Court granted an interim mandate until July 21, 1981. Respondents agreed that the cabins will not be demolished until October 15, 1981. Contrary to the agreement, on July 23, 1981, the petitioners were huddled in the State Transport buses to be deported from Mumbai.
The respondent’s action was challenged by the petitioner alleging that he violates Articles 19 and 21 of the Constitution. They also requested a statement that Sections 312, 313 and 314 of the Bombay Municipal Corporation Act of 1888 violate Articles 14, 19 and 21 of the Constitution.
This was a written petition filed under Article 32 of the Constitution. Olga Tellis, a journalist along 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 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.
The following questions were raised before the Hon’ble Supreme Court, for scrutiny:
- Whether eviction of slum dweller infringement of their right to livelihood which in turn can be regarded as infringement under Article 21 of the Constitution?
- Whether action taken by the State Government as well as Bombay Municipal Corporation is in derogation with the provisions contained in Article 19 and Article 21 of the Constitution of India?
- Whether Section 314 of Bombay Municipal Corporation Act, 1888 which prescribes the procedure for removal without any prior notice, unreasonable and arbitrary?
- Whether pavement dwellers are “trespassers” under the Indian Penal Code (IPC)?
Contentions of the Petitioners:
- The counsel 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 right to life and is, therefore, unconstitutional.
- The petitioner argued that the procedure prescribed by Section 314 of the 1888 Act to eliminate intrusion on the sidewalk is arbitrary and unreasonable since it not only does not provide notification before the removal of the intrusion but also provides that the Municipal commissioner can make sure that the intrusion is eliminated “without notice.”
Contentions of the Respondents:
- The defense 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 they would not prevent their demolition after the scheduled date.
- On the issue of natural justice, it was argued that this possibility of hearing should be given to whom? The intruder who has invaded public property? Or to people who commit a crime?
- Article 39 (a) of the Constitution, which is a guiding principle of State policy, states that the State must pay special attention to its policy in order to ensure that citizens, both men and women, have the same right to a 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 cannot 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 was 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 cannot, by positive action, be obliged to provide adequate means of subsistence or work for citizens. However, any person deprived of his right to a means of subsistence, except in accordance with the fair and just procedure established by law, may challenge deprivation as a violation of the right to life conferred by Article 21.
- In summarizing the case of the petitioners, the main argument was that the right to life guaranteed by Article 21 includes the right to a livelihood and that they will be deprived of their livelihood if they are expelled from their slums and their sidewalks its expulsion would amount to a deprivation of life and, therefore, is unconstitutional.
- For the purpose of discussion, the Court assumed that 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 the Court considered is whether the right to life includes the right to a means of subsistence. The Court has 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 eliminated, for example, by imposing and executing the death penalty, except in accordance with the procedure established by law. This is only one aspect of the right to life. The right to subsistence is an equally important aspect of this right because no one can live without the means to live, that is, the 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 it. Such deprivation would not only strip life of its effective content and meaning, but it would make life impossible to live.
- And yet, such deprivation should not be in accordance with the procedure established by law, if the right to subsistence is not considered part of the right to life. That, which only makes it possible to live, leaving aside what makes life habitable, should be considered as an integral component of the right to life.
- Deprive a person of his right to earn a living and have deprived him of his life. That explains the massive migration of the rural population to the big cities. They emigrate because they have no means of subsistence in the villages. The driving force that caused people to withdraw from their homes in villages struggling for survival, that is the struggle for life.
- So impeccable is the evidence of the link between life and livelihoods. They have to eat to live: only a handful can afford to live to eat. What can they do, namely eat, only if they have the means of subsistence? That is the context in which Douglas J. said in Baksey that the right to work is the most precious freedom because it sustains and allows a man to live and the right to life is a precious freedom.
- “Life,” as Field, J. observed in Munn v. Illinois, means more than mere animal existence and inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.
The court 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.
6. High priority should be given to resettlement.
Relevancy and Applicability:
While the above rights and claims have jurisprudential applicability is there in the judgment; the concept of social engineering is also there. It is being propounded by eminent jurist Roscoe Pound. He devised that any law should have the applicability, interpretation and framing while taking into account the social fact. Pound saw legal history as ‘the record of a continually wider recognizing and satisfying of human worth or claims or desires through social control’. Here, the question that arises is that why the only sociological school has been taken into account why other schools are not that sufficient for the application. It is because the historical approach used through the historical method and to achieve the same position in the philosophical school also showed no distinction, leading us to the conclusion that they are not more fundamental for social problems.
A comparison is also being drawn between public policy and private rights and they should be treated on the same plane. It was said that public policy was “a very unruly horse, and when once you get astride it you never know where it will carry you”. Hence, it’s all about prioritizing that which one should be given the preference. Social security should be achieved by proper implementation of the legislation which doesn’t encroach upon individual rights. Thus, taking into account the principles of sociological school the applicability of the same is justified over the judgment as the impugned act the Bombay Municipal Corporation act is for societal benefit but it should also be seen that it is not being implemented in an arbitrary manner, which has also been stated in the judgment.
The Olga Tellis case has helped the owner classes a lot. Lawyers often cite the case to justify the eviction of tenants. But it also helped slum dwellers and pavement dwellers. The Government cannot summarily evict them. The case also generated great interest in the struggle for housing as a fundamental right, but if you were an inhabitant of the pavement, it simply is not enough. This case is widely cited as an example of the use of civil and political rights to promote social rights, but it is also considered problematic due to its breach of the right to resettlement.
The decision of the Supreme Court, in this case, was based on the humanistic approach of the judges and the Apex Court stepped into the activist role. The Hon’ble Supreme Court held that the slum dwellers must get the alternative shelter if they are evicted from the pavements. Although, the eviction orders were held to be valid under Article 14 and 19 of the Constitution. The right to life was once again enlarged to engulf the right to livelihood as being a part of the liberty of an individual. 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.
The judgment reflects very much the ‘Principle of Utility’ propounded by Jeremy Bentham. According to Bentham happiness can be maximized only if instances of pain are lighter and fewer. The judgment delivered by the Hon’ble Court can be said to be the 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 participation of the interests of such a large number of people forced the Court to lean in their favor despite the existence of the specific law for the eviction of the inhabitants of the pavement. According to the chief justice of the court, Y.V. Chandrachud, although the petitioners are using unauthorized pavements and public property, are not in any way “criminal intruders” under section 441 of the Criminal Code of India, since their objective or reason for doing so is not to commit a crime or intimidates, insults or annoys any person, rather they are forced by unavoidable circumstances and are not guided by choice. They only manage to find a habitat in dirty or swampy places. This decision, where the scope of the term “life” was extended, has also paved the way for the reform of substantive law.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, AIR 1986 SC 180.
 Article 21 of the Constitution of India, https://rshrc.rajasthan.gov.in/includes/HUMAN-RIGHTS-ARTICLE-21.pdf (last visited March 2, 2020, 6:00 P.M).
 Munn v. Illinois (1877) 94 U.S. 113.
 N K Jayakumar, Lectures in Jurisprudence 191 (2nd ed., 2014).
 Roscoe Pound, A Survey of Social Interests, 57 Harvard Law Review, 1-40 (1943).
 Richardson v. Mellish, 130 Eng. Rep. 294.
 Supra Note 1.