BY:-Tejaskanda M
| Name of the case | Olga Tellis and Ors. Vs Bombay Municipal Corporation and Ors. |
| Citation | AIR 1986 SC 180 |
| Date of the case | 10/07/1985 |
| Petitioner | Olga Tellis and Ors. |
| Respondent | Bombay Municipal Corporation and Ors. |
| Bench/Judge | CHANDRACHUD,Y.V.((CJ), FAZALALI SYED MURTAZA, TULZAPURKAR, V.D. REDDY, O. CHINNAPPA (J), VARADARAJAN, A. (J) |
| Statutes involved | Indian Penal Code, 1860 ; Bombay Municipal Corporation Act,1888; Constitution of India, 1950 |
| Important Sections/ Articles | Articles 14, 15, 16, 19, 19(1), 21, 22, 25, 29, 32, 37, 39 and 41 of the Constitution of India, 1950. Section 441 of the Indian Penal Code, 1860. Sections 312, 313, and 314 of the Bombay Municipal Corporation Act, 1888. |
Abstract
India has seen a slew of historical decisions that have shaped its Constitution into an ideal of justice, equality, and good conscience. Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, which embarked as a paradigm of the democratic government of the state, was one of those judgements that extended the limits of what Fundamental Rights meant. The judgement acknowledges the rights of the second generation as pillars of the primary generation’s rights, i.e., fundamental rights, and grants broad interpretation since the court serves as a mechanism for enforcing basic rights by placing oneself inside the framework of the law.
Introduction
The Supreme Court of India’s five-judge bench decided Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. in 1985. C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal Ali, and J., V.D. Tulzapurkar constituted the honourable bench. This issue was brought before the Supreme Court as a writ petition by people living on the streets and in slums in Bombay. The petitioners requested that they be allowed to remain on the sidewalks despite their eviction order. Hon’ble Chief Justice Y.V.Chandrachud delivered the majority opinion (with all five judges concurring).
Background of the case
This was a written petition made under the Constitution’s Article 32. The eviction order approved by Mr. A.R. Antulay, the then Chief Minister of Maharashtra, was questioned by Olga Tellis, a journalist, in collaboration with the PUCL and other groups. The residents of the pavement, as well as public interest organisations, have stated that the eviction order is a violation of their fundamental rights. They are deprived of their fundamental rights enshrined in Article 19 as well as the right to life provided by Article 21 as a result of the eviction.
Article 21 of the Constitution is one of the most important articles in Part III of the Indian Constitution, dealing with fundamental rights. As specified in Article 12 of the Indian Constitution, the essential rights mentioned in Part III are enforceable against the state. Incompatible laws or laws that deprive basic rights to the degree of such contradiction or repeal are declared unlawful under Article 13. Article 21 declares that no one shall be deprived of his or her life or personal liberty unless the procedure specified by law is followed. Any procedural law that can legitimately deprive a person of his life or personal liberty must meet the following criteria: The procedure established by said law must be the product of the relevant legislative authority’s legal exercise of legislative power. The applicable Articles that may regulate the said law, as stipulated in Article 21, and by virtue of which the said law must be shown to be in compliance with Articles 14, 19, and 22 of the Indian Constitution.
The State of Maharashtra, and hence the Bombay Municipal Council, decided in 1981 to expel all slum and pavement inhabitants from the city of Bombay. Residents complained that evictions would violate their right to life because a residence in the city allowed them to earn a living, and requested that if the evictions went forward, appropriate resettlement be given. 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 livelihood because, “if the State has an obligation to provide citizens with an adequate means of livelihood, and thus 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 a living was not absolute, and deprivation of the right to a living might occur if a legal procedure was followed in a just and fair manner.
The government’s action must be reasonable, and anyone who is affected must be given the opportunity 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. While the occupants had no intention of trespassing, they believed it was legitimate for the government to evict people who lived 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 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.
Facts of the case
In Olga Tellis v. Bombay Municipal Corporation, the state of Maharashtra chose to evict pavement dwellers and individuals living in slums in Bombay in 1981, and the Bombay Municipal Corporation followed the suit. Mr. A. R. Antulay, the Maharashtra Chief Minister at the time, issued an order on July 13 to evict slum people and pavement dwellers from Bombay and deport them to their places of origin. Section 314 of the Bombay Municipal Corporation Act 1888 was to be used for the eviction.
When they learned of the Chief Minister’s pronouncement, they filed a writ case in the Bombay High Court seeking an order of injunction prohibiting government personnel and the Bombay Municipal Corporations from carrying out the Chief Minister’s direction. The Bombay state supreme court issued an advertisement interim injunction that would last until July 21, 1981. The huts will not be dismantled until October 15, 1981, according to respondents. On July 23, 1981, petitioners were crammed into State Transport buses and deported from Bombay against their will. The petitioner challenged the respondent’s action because it violated Articles 19 and 21 of the Constitution. They also requested a declaration that Sections 312, 313, and 314 of the Bombay Municipal Corporation Act 1888 are in violation of the Constitution’s Articles 14, 19, and 21.
Issues raised before the court
- Whether Question of Estoppels against fundamental rights or Waiver of Fundamental Rights?
- Whether Scope of right to life under Article 21 of the Constitution?
- Whether Constitutionality of provisions of the Bombay Municipal Corporation Act, 1888.
- Whether pavement dwellers are “trespasser” under I.PC.
Arguments raised by the Petitioner
- A pavement dweller’s right to live, as defined by Article 21, is violated when he is evicted.
- The state government’s behaviour is in violation of articles 19(1)(e), 19(1)(g), and 21 of the Constitution.
- The mechanism for removing encroachments on pavements set by the Bombay Municipal Corporation Act, 1888 is arbitrary and unreasonable.
- It is unconstitutional to refer to people who live on the street as “trespassers.”
- The scope of Articles 19(1)(e), 19(1)(g), and 21 must be determined by the court.
Arguments raised by the Respondent
- The petitioners have asserted in the High Court that they did not claim any Fundamental Rights and had made an undertaking to vacate the hutments by October 15, 1981, they must be stopped from arguing in the Supreme Court that huts constructed by them construed right to livelihood.
- No one has the right to infringe on a public right of way or a walkway, and Article 19(1)(e) cannot be interpreted to grant a permission to encroach or trespass on “public property.”
- The provisions of sections 312, 313, and 314 of the Bombay Municipal Corporation Act, 1888, do not violate the Constitution, and they have been enforced with care.
- The Corporation never regularised the huts beside the Western Express Highway because they were built on an ancillary road that was a part of the Highway itself.
- The eviction process does not include the impairment of one’s right to life, and the Municipal Commissioner is constrained by section 314 of the Bombay Municipal Corporation Act.
- The petitioners have also broken the Bombay Police Act’s provisions 111 and 115.
Related Provisions and Sections
Constitution of India,1950
- Article 14
Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Article 15
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
- access to shops, public restaurants, hotels and places of public entertainment; or
- the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
- Article 16
Equality of opportunity in matters of public employment.—
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
- Article 19
Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right—
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions [or co-operative societies];
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India;
- to practise any profession, or to carry on any occupation, trade or business.
- Article 21
Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 22
Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
- Article 25
Freedom of conscience and free profession, practice and propagation of religion.—
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
- regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
- providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
- Article 29
Protection of interests of minorities.—
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
- Article 32
Remedies for enforcement of rights conferred by this Part.—
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
- Article 37
Application of the principles contained in this Part.—The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
- Article 39
Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy towards securing—
- that the citizens, men and women equally, have the right to an adequate means of livelihood;
- that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
- that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
- that there is equal pay for equal work for both men and women;
- that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
- Article 41
Right to work, to education and to public assistance in certain cases.—The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
Indian Penal Code,1860
- Section 441
Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.
Bombay Municipal Corporation Act,1888
- Section 312
(1) No person shall, except with the permission of the Commissioner under section 310 or 317, erect or setup any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon over any open channel, drain, well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain, well or tank.
(2) Nothing in this section shall be deemed to apply to any erection or thing to which clause (c) of section 322 applies.
- Section 313
(1) No person shall, except with the written permission of the Commissioner—
(a) place or deposit upon any street or upon any open channel, drain or well, in any street [or in any public place] any stall, chair, bench, box, ladder, bale or other things so as to form an obstruction thereto or encroachment thereon ;
(b) the project, at a height of fewer than twelve feet from the surface of the street, any board, or shelf, beyond the line of the plinth of any building, over any street or over any open channel, drain, well or tank in any street ;
(c) attach to, or suspend from, any wall or portion of a building abutting on a street, at a less height than aforesaid anything whatever.
(2) Nothing in clause (a) applies to building materials.
- Section 314
The Commissioner may, without notice, cause to be removed—
(a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel drain, well or tank contrary to the provisions of sub-secion (1) of section 312, after the same comes into force [in the city or in the suburbs, after the date of the coming into force of the Bombay Municipal (Extension of Limits) Act, 1950 [or in the extended suburbs after the date of the coming into force of the Bombay Municipal [Further Extension of Limits and Schedule BBA (Amendment)] Act, 1956;]
(b) any stall, chair, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in, upon, from or to any place in contravention of sub-section (1) of section 313 ;
(c) any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of section 313A and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.
(d) any person, unauthorisedly occupying or wrongfully in possession of any public land, from such land together with all the things and material unauthorisedly placed, projected or deposited on such land by such person :
Provided that, the Commissioner shall, while executing such removal, allow such person to take away his personal belongings and household articles, such as cooking vessels, bed and beddings of the family, etc.]
Judgement
The court refused to conclude that the expelled inhabitants were entitled to an alternate site, it ordered:
1. nobody has the proper to encroach on trails, sidewalks, or other places reserved for public purposes.
2. the supply of section 314 of the Bombay Municipality Act isn’t unreasonable within the circumstances of this case.
3.Sites must be provided to censored residents in 1976.
4. Slums existing for 20 years or more shouldn’t be removed unless the land is required for public purposes and, during this case, alternate sites must be provided.
5.High priority should be resettlement.
The Supreme Court stated that just though the petitioners admitted in the Bombay tribunal that they did not claim any fundamental rights to build pavements on public highways, they are not barred from arguing that the huts they built on the pavements cannot be demolished. The Court went on to say that just accepting this claim is inexcusable. It is stated that the Indian Constitution is the final arbiter within the country. The Constitution does not allow for estoppel. It is the most important law of the land. As a result, the court concluded that even though the petitioners did not intend to pursue their fundamental right to build hutments on pavements, they are nevertheless entitled to assert that any action taken by the general public authority will infringe their fundamental rights.
The petitioner’s argument that the right to livelihood should be included within the right to life because eviction from their slum and pavement dwellings would deprive them of their means of livelihood, which would be tantamount to deprivation of the right to live and thus unconstitutional, is correct, and Article 21 does include the right to livelihood. According to the Court, the method established by Section 314 of the Bombay Municipal Corporation Act, 1888 for the clearance of encroachments on sidewalks or pavements over which the general public has the right of passage or access cannot be regarded irrational, unfair, or unjust. Footpaths and pavements, according to the Court, are public properties intended to serve the general people’s convenience.
As a result, the court ruled that no one has the right to trespass on any land that has been set aside or embarked for general public use, and that the provision in Section 314 of the Bombay Municipal Corporation Act is not irrational. Following an investigation, the court ordered the occupants to be evicted for one month. The state was also ordered to provide alternative housing to some residents. This wasn’t a pre-condition for eviction; it was simply to give assurance to the government’s earlier commitments.
Conclusion
The right to Livelihood is included in the right to Life. This case is frequently cited as an example of how civil and political rights can be used to enhance social rights. It is, however, seen as problematic because it does not allow for the right to relocation. It also contradicts recent developments in other jurisdictions, where courts have established more substantial resettlement rights. The squatters were expelled without being relocated. Since 1985, numerous subsequent judgements have confirmed the concepts in this case, frequently resulting in large-scale evictions without resettlement. The meaning of the term “life” has been broadened, paving the path for reform of substantive law.
To make a living, these migrants typically come from Mumbai’s lower socioeconomic strata. If their ability to earn a living is taken away, their Right to Livelihood is also taken away. With such a low salary, they can’t afford to rent houses or pay for transportation. As a result, the pavements or cheap slums are their last resort. They live in unclean and deplorable circumstances. The Respondent was unjust in demolishing their homes without warning during the monsoon. These people do not receive any subsidies, and very few people speak up for them. Our drivers, housemaids, and housekeeping personnel are among them. This straightforward decision obviously gave natural justice to these individuals.
Many subsequent cases resulting to evictions without a settlement have essentially upheld the grounds established in this case. 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 as problematic because it does not include a right to resettlement.
References
https://legislative.gov.in/sites/default/files/COI-updated.pdf
https://indiankanoon.org/doc/709776/
https://lexpeeps.in/olga-tellis-v-bombay-municipal-corporation/