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Olga Tellis & Ors v. Bombay Municipal Corporation & Ors

Olga Tellis & Ors v. Bombay Municipal Corporation & Ors

By Ayushi Gupta

SUPREME COURT OF INDIA

 

OLGA TELLIS & ORS.

VS

BOMBAY MUNICIPAL CORPORATION & ORS.[1]

 

Date of judgment: 10.07.1985

Bench : Y.V.Chandrachud, S. Murtaza Fazal Ali, V.D. Tulzapurkar, O. Chinnappa Reddy, A.V. Varadarajan.[2]

 

Introduction

India has witnssed a multitude of landmark judgments which have evolved and make our Constitution of India as a embodiment of  justice, equality and good conscience. One of such judgment which widened the horizons of the meaning of Fundamental Rights was, Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, it was embarked as a paradigm of democratic governance of the nation. The judgment recognizes the second generational rights as the pillars for the first generational rights i.e, fundamental rights and confers application of judicial activitism as the judiciary acts a mechanism to enforce fundamental right by stepping into the shoes of parliament in regulating government policies. The judgment tends to pave the way for enlarging the scope of right to life and desist the infringement in unreasonable manner. Though, judgment is marked as an achievement, the implementation of the judgment defeats the coup.

 

Background Of  The Case  

In the instant case, the Supreme Court brought socio – economic rights into the purview of Part III of the Constitution recognizing the second generational rights on the same pedestal as first generational right. In July 1981, A. R. Antulay who was then the chief minister of Mumbai publicly announced that, all the resident of Mumbai who are living on pavements of the roads or informal settlement without any photo passes will be forcibly evicted and would be deported to their respective places of origin or outside Mumbai. Further, he also ordered the police commissioner of Mumbai to assist the Bombay Municipal Corporation for carrying out the eviction process. The said act was done in pursuance of Section 312, 313 and 314 of Mumbai Municipal Corporation Act, 1888. Section 314 enshrined authority to the municipal commissioner who vest the power to remove encroachment with or without any prior notice. In response to which the journalist, Olga Tellis filed a writ petition (compromising 12 petitioners) on behalf of  slum dwellers, People’s Union of Civil Liberities & Committee for the  Protection of Democratic Rights. The contentions set forth by the petitioners were, not to let them stay on pavements but they proposed that, it’s their fundamental right to life and personal liberty as enshrined under Article 21 of the Constitution which should also include right to livelihood as it essential element of Article 21 without which the essence of the article stands nil.[3]

 

Question In Law

The following questioned were raised before the Hon’ble Supreme Court, for scrutiny,

A.   Whether eviction  of slum dweller infringement of heir right to livelihood which in turn can be regarded as infringement under Article 21 of the Constitution?

B.    Whether action taken by the State Government  as well as Bombay Municipal Corporation is in derogation with provision contained in Article 19  and Article 21 of the Constitution of India?

C.    Whether Section 314 of Bombay Municipal Corporation Act, 1888  which prescribes the procedure for removal without any prior notice, unreasonable and arbitrary ?

 

Judgment Critical Analysis

The Hon’ble Supreme Court gave solicitous consideration to the question of infringement of Fundamental Rights, it asserted that, the slum dwellers live as inhumane existence not by choice but due to their economic instability and the various norms set by the state which they aren’t able to cope up. The petitioners contented that, right to livelihood is an ingredient of right to life and absence of which makes their right to life meaningless in the first place. The former right has to be recognized in order to bring a meaning to the later right. Therefore, right to livelihood must include in right to life which is infringed by the state authorities and BMC. Moreover. they contended that the procedure in section 314 is used unreasonably. Also, they claimed for alternative accommodation. In contrast, BMC asserted that, it is for greater good of the public as pavements are public property and they cannot be occupied by the slum dwellers. They also cited numerous health hazards, environmental degradation, traffic accidents accompanied due to the slum dwellers. Therefore, it was a challenge presented before the Supreme Court to look into the compelling interest of the society and on the other hand, right to life of the pavement dwellers. Justice Chandrachud based its decision on the concept of bentham theory of jurisprudence and hedonist utilitarianism[4]. Bentham divides jurisprudence into two halves, what law ought to be i.e, expositorial and what law is i.e, censorial. The Supreme Court decision shows reformative approach in substantive law. It has enlarged the scope of Article 21 by including right to livelihood. The transition from what law is to what law ought to be is evidently shown by the judgment. Supreme Court opined that, though right to livelihood is  an element of right to life, the eviction is not in derogation with those rights and neither section 314 is used in unreasonable manner. Pavements are public property and so no one is allowed to occupy it. Moreover, section 314 of BMCA, 1888 conferred discretion on the commissioner to remove unnecessary encroachments but it must be used in reasonable manner and not arbitrary. In the present case, it is reasonably exercised. Therefore, SC refused to invalidate the said provision and allowed the permission which a condition that they must be evicted after 1 month of the rainy season and must be given alternative accommodation which was the highlighting part as judiciary steps into policy making approach for socio – economic policies and rehabilitation. The Supreme Court based its decision on the concept of hedonistic utilitarianism looking at the greater good for greater number. Ironically, the decision turned out to be a landmark case as it enlarged the scope of Article 21 and also the court  adopted policy orientated approach as they opined rehabilitation schemes for all the residents who are evicted but the decision never was implemented vitiating the substratum of the judgement.[5] The judgment is meaningless if, not followed and no legal action is being taken against the authorities who are freely on the move. The only sufferers leaving behind the slum dwellers who entrust their faith in the judiciary to enforce their fundamental rights, forgetting behind  the implementation still lies with the authorities. The authorities though bound by the law are free to not follow it but the slum dwellers bound by the law are supposed to vacate the area. Have they not vacated it, would that still amount to no action by the judiciary? Ponder about it!

  


[1] Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180, 1985(2)SCALE5, (1985) 3 SCC 545, [1985] Supp2SCR51. 

[2] Supreme Court Law Times (Sclt).

[3] “10 Judgments  That  Changed India” by Zia Mody, Penguin Random House India  2013.

[4] Legal Services India, “Principles of Jeremy Bentham and Supreme Court of India – Case Comment  - Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.”,  Sandeep Pathak.

[5] Sabrang, “ The Right to Home ad Hearth”, Olga Tellis, 17th  December, 2015.

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