Re-reading ‘Olga Tellis and ors v. Bombay Municipal Corporation’ as Petitioner completes 50 years in Journalism

One of India’s finest and most respected journalists-Olga Tellis, who chased news and newsmakers and reported for various magazines and newspapers has completed 50 years in the profession.

She was the only woman reporter covering politics and business when she started out in the 1960s at the Ananda Bazaar Patrika group.

Though she started off covering the political beat as a political reporter and went on to interview the who’s who of Indian politics including Sharad Pawar, George Fernandes etc, Olga Tellis later shifted to business journalism and joined the ‘Asian Age’ as its Business Editor.

Olga Tellis who is over 75 years of age- easily making her one of the oldest journalists in the country today- is currently the Consulting Editor of the ‘Asian Age’.

But she will also be fondly remembered for championing the cause of slum dwellers and pavement dwellers of the city of Bombay in Olga Tellis and ors v. Bombay Municipal Corporation and ors AIR 1986 SC 150 wherein the Supreme Court expanded the ambit of the right to life so as to bring the ‘right to livelihood’ within the purview of ‘right to life’ under Article 21 of the Constitution.

On July 13, 1981 the then Chief Minister of Maharashtra, Shri A.R. Antulay, made an announcement which was given wide publicity by the newspapers that all pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay. The Chief Minister directed the Commissioner of Police to provide the necessary assistance to the Bombay Municipal Corporation, to demolish the pavement dwellings and deport the pavement dwellers. The apparent justification which the Chief Minister gave to his announcement was : "It is a very inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably."

The decision of the respondents to demolish the huts was challenged by the petitioners before the Supreme Court under Article 32 of the Constitution on the ground that it is violative of Articles 19 and 21 of the Constitution. The petitioners also asked for a declaration that the provisions of sections 312, 313 and 314 of the Bombay Municipal Corporation Act, 1888 are invalid as they violated Articles 14, 19 and 21 of the Constitution.

The reliefs asked for in the two groups of writ petitions were that the respondents should be directed to withdraw the decision to demolish the pavement dwellings and the slum hutments and, where they are already demolished, to restore possession of the sites to the former occupants.

On behalf of the Government of Maharashtra, a counter- affidavit was filed wherein the Government of Maharashtra took the stand that it neither proposed to deport any payment dwelled out of the city of Bombay nor did it, in fact, deport anyone.  The counter-affidavit said that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. Numerous hazards of health and safety arise if action is not taken to remove such encroachments. Since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching, illicit distillation of liquor and prostitution. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon.

The Bombay Municipal Corporation filed a counter affidavit through its Commissioner contending that the pavement dwellers answer the nature's call, bathe, cook and wash their clothes and utensils on the foot-paths and on parts of public streets adjoining the foot-paths, and that consequently, their encroachment creates serious impediments in repairing the roads, foot-paths and drains. The refusal to allow the petitioners and other persons similarly situated to use foot-paths as their abodes was, therefore, not unreasonable, unfair, or unlawful. The basic civic amenities, such as drainage, water and sanitation, cannot possibly be provided to the pavement dwellers. Since the pavements are encroached upon, pedestrians are compelled to walk on the streets, thereby increasing the risk of traffic accidents and impeding the free flow of vehicular movement. The Municipal Commissioner disputed in his counter-affidavit that any fundamental right of the petitioners was infringed by removal of the encroachment committed by them on public property, especially the pavements.

The Supreme Court took note of the affidavit of the journalist petitioner, Olga Tellis, in reply to the counter-affidavit of the Government of Maharashtra.

She had contended that one of the important reasons of the emergence and growth of squatter-settlements in the Metropolitan cities in India was, that the Development and Master Plans of most of the cities have not been adhered to. The density of population in the Bombay Metropolitan Region is not high
according to the Town Planning standards. Difficulties were caused by the fact that the population is not evenly distributed over the region, in a planned manner. New constructions of commercial premises, small-scale industries and entertainment houses in the heart of the city, have been permitted by the Government of Maharashtra contrary to law and even residential premises have been allowed to be converted into commercial premises. This, coupled with the fact that the State Government has not shifted its main offices to the northern region of the city, has led to the concentration of the population in the southern region due to the availability of Job opportunities in that region. Unless economic and leisure activity is decentralised, it would be impossible to find a solution to the problems arising out of the growth of squatter colonies. Even if squatters are evicted, they come back to the city because, it is there that Job opportunities are available. The alternate pitches provided to the displaced pavement- dwellers on the basis of the so-called 1976 census, are not an effective means to their resettlement because, those sites are situated far away from the Malad Railway Station involving cost and time which are beyond their means. There are no facilities available at Malavant like schools and hospitals, which drives them back to the stranglehold of the city. The permission granted to the 'National Centre of Performing Arts' to construct an auditorium at the Nariman Point, Backbay Reclamation, is cited as a 'gross' instance of the short-sighted, suicidal and discriminatory policy of the Government of Maharashtra. It is as if the sea is reclaimed for the construction of business and entertainment houses in the centre of the city, which creates job opportunities to which the homeless flock. They work therein and live on pavements. The grievance is that, as a result of this imbalance, there are not enough jobs available in the northern tip of the city. The improvement of living conditions in the slums and the regional distribution of job opportunities are the only viable remedies for relieving congestion of the population in the centre of the city. The increase allowed by the State Government in the Floor Space Index over and above 1.33, has led to a further concentration of population in the centre of the city.

In the matter of housing, according to Ms. Tellis' affidavit, Government had not put to the best use the finances and resources available to it. There was a wide gap between the demand and supply in the area of housing which was in the neighbourhood of forty five thousand units in the decade 1971-81. A huge amount of hundreds of crores of rupees shall have to be found by the State Government every year during the period of the Sixth Plan if adequate provision for housing is at all to be made. The Urban Land Ceiling Act had not achieved its desired objective nor has it been properly implemented. The
employment schemes of the State Government are like a drop in the ocean and no steps are taken for increasing Job opportunities in the rural sector. The neglect of health, education transport and communication in that sector drives the rural folk to the cities, not only in search of a living but in search of the basic amenities of life. The allegation of the State Government regarding the criminal propensities of the pavement dwellers was stoutly denied in the reply-affidavit and it was said to be contrary to the studies of many experts. Finally, it was stated that it is no longer the objective of the Sixth Plan to reverse the rate of growth of metropolitan cities. The objective of the earlier plan (1978-83) has undergone a significant change and the target now is to ensure the growth of large metropolitan cities in a planned manner. The affidavit claimed that there is adequate land in the Bombay metropolitan region to absorb a population of 20 million people, which was expected to be reached by the year 2000 A.D.

The main plank of the argument of Olga Tellis and the other petitioner was that the right to life which is guaranteed by Article 21 included the right to livelihood and since, they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their eviction was tantamount to deprivation of their life and was hence unconstitutional.

The Supreme Court held that right to livelihood is an equally important facet of the right to life because, “no person can live without the means of living, that is, the means of livelihood. 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 livable, must be deemed to be an integral component of the right to life. Deprive 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 people their desertion of their hearths and homes in the village s 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.”

Further, referring to Articles 39(a) and 41 of the Constitution, the Apex Court in Olga Tellis had held that the “principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21.”

Though the Court recognized the right to livelihood as a part of the right to life under Article 21, it clarified that the Constitution does not put an absolute embargo on the deprivation of life or personal liberty. The Court said that “By Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888, the relevant provisions of which are contained in Sections 312(1),313(1)(a)and 314.”

The SC went on to hold that the procedure prescribed by Section 314 of the Bombay Municipal Corporation Act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust, as footpaths or pavements which are public properties intended to serve the convenience of the general public, are not laid for private use and their use for a private purpose frustrates the very object for which they are carved out from portions of public streets.

The Court held that any person putting public property for a use for which it is not intended and authorized is to be treated as a trespasser. It said:

“No one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavement by constructing dwellings thereon. Public streets, of which pavements form a part, are primarily dedicated for the purpose of passage and, even the pedestrians have but the limited right of using pavements for the purpose of passing and repassing. So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not intended and is not authorised so to use it, he becomes a trespasser.”

 Thus, though the writ petitions were not allowed in their entirety, it secured the ‘right to livelihood’ under Article 21 of the Constitution, which was a major victory.

Olga Tellis went on to be considered as a watershed judgment which was incorporated in the syllabus of law schools around the world apart from being cited in books and journal articles and celebrated by civil rights activists.

Later benches of the Supreme Court have quoted the Olga Tellis dictum with approval and followed and applied the same.

In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, (1997) 11 SCC 123 in the context of eviction of encroachers in a busy locality of Ahmadabad city, the Apex Court said:

“Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to inimize inequalities in income and in opportunities and status. It positively charges the State to distribute its largesse to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make life worth living with dignity of person and equality of status and to constantly improve excellence. Though no person has a right to encroach and erect structures or otherwise on footpaths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful.”

Following decisions of the SC including Olga Tellis, the SC has held that Article 21 has both a negative and an  affirmative dimension, and further that the provisions  of Parts III and IV are supplementary and complementary to each other and that Fundamental Rights are but a means to the goal indicated in Part IV,  and  that the Fundamental  Rights  must  be construed in  the light of the Directive Principles [See for eg.: Unni Krishnan and Ors. vs State Of Andhra Pradesh and Ors AIR 1993 SC2178] That the Right to Life includes the Right to Livelihood was reiterated in several other decisions of the SC including in Delhi Transport Corporation vs D.T.C. Mazdoor Congress AIR 1991 SC101.  The decision in Olga Tellis has been rightly hailed as a landmark in the annals of Indian legal and constitutional history.

Ajith.S is a practising Lawyer at High Court of Kerala. He tweets at @ajithvakil.