Further expanding the meaning of the ‘right to life’ and including second generation rights.
- Olga Tellis v. Bombay Municipal Corporation (1985)
- Facts of the Case
- The Right to Life Includes the Right to Livelihood
- Policy-Oriented Approach of the Supreme Court
- The Aftermath of Olga Tellis
- The Largest Court-Sanctioned Eviction in the World
- Third Generation Rights
- Right to Housing in 21st-Century India
CONVENTIONALLY, HUMAN RIGHTS have been divided into two broad categories: civil and political or ‘first generation rights’—including the right to life, the right against arbitrary arrest and detention, and the right to freedom—and social, economic and cultural rights or ‘second generation rights’, such as the right to health and the right to social security.
Like most other Constitutions from which it drew inspiration, the Constitution of India was framed such that only first generation rights were fundamental rights which could be enforced by courts of law; on the other hand, several second generation rights1 were encompassed as non-binding aspirations in the nature of directive principles of state policy.
In the early years after Independence, Indian courts unwaveringly followed this framework of rights conceptualized by the Constituent Assembly and were generally willing only to enforce first generation rights.
Then, in the 1970s and ’80s, an interesting phenomenon came about—due to strong judicial activism, the courts expanded the scope of several fundamental rights, particularly Article 21 of the Constitution, to include second generation rights within their ambit.
Contextually, Olga Tellis v. Bombay Municipal Corporation4 (Olga Tellis) was one of the pioneering cases through which the Supreme Court brought socio-economic rights within the sweep of Part III of the Constitution (encompassing fundamental rights)—holding that the right to shelter was a fundamental right and thus impacting millions of slum/pavement dwellers in India.
It reflected the gradual transition of the Supreme Court from merely recognizing fundamental rights, which are framed negatively as negative obligations (in the nature of commands preventing the state from acting in a certain manner), to elevating them to the level of positive duties to be performed by the state.
By including the right to shelter within its reach, the Supreme Court attributed a new socio-economic dimension to Article 21. And that is why Olga Tellis was a milestone in the recognition of second generation human rights by Indian courts.
Every year, lakhs of people from rural areas flock to Mumbai in search of work. Slum/pavement dwellers in Mumbai, like migrants in any urban area, generally reside in the areas that are nearest to their place of work or business.
In July 1981, the then chief minister of Maharashtra, A.R. Antulay, publicly announced that all residents of Mumbai (then Bombay) who were living in informal settlements or squatting on pavements of major roads, but did not possess photo-passes would be forcibly evicted, and either deported to their respective places of origin or transported to places outside Mumbai.
Antulay also directed the Commissioner of Police to assist the Bombay Municipal Corporation (the BMC) in carrying out this mass eviction and demolition drive. The apparent justification that the chief minister offered for his announcement was: ‘It [the life of slum/ pavement dwellers in Mumbai] 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 Municipal Commissioner of Bombay went ahead and ordered the removal of these ‘encroachments’ under Sections 312–14 of the Mumbai Municipal Corporation Act, 1888 (the BMC Act). Section 314 authorized the municipal commissioner to remove encroachments without prior notice.
At the time, this legislation was nearly a century old and it still stands as the constituent instrument of the Municipal Corporation of Greater Mumbai. In response, two groups of slum/pavement dwellers residing in Mumbai filed writ petitions before the Supreme Court of India, challenging the constitutional validity of Sections 312–14 of the BMC Act.
Interestingly, the petitioners in Olga Tellis did not contend that they were entitled to live on pavements.
They contended instead that they had a right to life and personal liberty under Article 21 of the Constitution, and that right necessarily included the right to livelihood. Given that slum/pavement dwellers had migrated to the city from rural areas to find means of basic sustenance, living on pavements as close to their workplace as possible was vital to their survival.
They contended that their right to life was illusory without the right to protection (by the state) of the means by which such a life could be lived.
Simply put, the petitioners argued that the law cannot provide you with something but deprive you of something else without which the former itself is meaningless. For instance, the right to own a vehicle has little value unless there is a corresponding right to buy fuel to run the vehicle.
As a remedy for being evicted from their homes, the petitioners claimed alternative accommodation. They also asserted that it is impermissible to classify pavement dwellers as trespassers, since they occupied pavements not by choice, but due to economic compulsions.
The situation was one of dire necessity, and it compelled them to use public property for personal survival. On the other hand, the BMC stated that Sections 312–14 of the BMC Act were conceived in public interest and ‘great care was taken to ensure that no harassment is caused to pavement dwellers by evicting them’.
An oxymoronic argument!
What can be a greater act of harassment to pavement dwellers than evicting them from their homes? The BMC also cited significant hazards to health and safety, including an increase in crime rates and environmental degradation, as its grounds for evicting the petitioners.
It claimed that the occupation of public pavements augments the spread of contagious diseases, and that the presence of pavement dwellers increases the risk of traffic accidents, as pedestrians have nowhere but the streets to walk on. The challenge before the Supreme Court was to reconcile the right to life of the pavement dwellers with the right to health and safety of the community at large.
The most striking aspect of the Supreme Court’s judgement was the candid manner in which it analysed the case, maintaining a clear focus on the ground realities without reference to the cryptic. This is tangible in the words with which it opened its judgement:
Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers-by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each other’s hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: ‘Who doesn’t commit crimes in this city?
From the perspective of human rights jurisprudence, the observations that the Supreme Court made in its judgement were far more significant than the decision itself.
For the first time in its history of thirty-five years, the Supreme Court affirmed that the right to life includes the (second generation) right to livelihood.
It reasoned that ‘[i]f 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 [or her] of his [or her] means of livelihood to the point of abrogation’.
The Supreme Court concluded that slum/pavement dwellers could not be evicted without any loss of their livelihood. It rightly recognized that the right to life is ineffectual without the means by which that right can be meaningfully exercised. Any deprivation of the right to livelihood would have to be in accordance with a procedure established by law that is fair, just and reasonable.
However, the court stated, the procedure prescribed by Section 314 of the BMC Act could not be regarded as unfair, unjust or unreasonable. The court’s rationale was that Section 314 of the BMC Act conferred discretion on the municipal commissioner to evict unauthorized encroachments, but did not impose a positive mandate on him to do so.
This discretion would have to be exercised in a reasonable manner, guided by constitutional principles. Refusing to invalidate the provisions of the BMC Act, the court held in favour of the BMC, and permitted the eviction drive.
It opined that no person had the right to encroach upon land that had been earmarked for a public purpose, such as a garden, playground or street. Although the Supreme Court decided in favour of the BMC, it arrived at its decision on the basis of several assurances made by the statutory body, including providing alternative accommodation, implementing socio-economic policies and schemes for rehabilitation, and implementing positive measures to provide equal treatment to the neglected sections of society.
The court also held that in no event were slums to be removed until one month after the end of the monsoon season at the time. (This was to ensure that the pavement dwellers would not be stranded during the monsoon, as had indeed been the case in July 1981 soon after Antulay made the initial public announcement.)
The Supreme Court’s approach reflected its evolving role in the democratic governance of the nation. Although it generally desists from interfering in matters of government policy, Olga Tellis was among the first instances when the Supreme Court, under the guise of enforcing a fundamental right, did precisely that.
Yet, while the remedies granted by the court were described as unorthodox and while their efficacy was questioned, they have been largely accepted as legitimate.
Interestingly, Olga Tellis formed one of what eventually became an array of decisions, wherein the court refused to grant any immediate relief to litigants but directed the state to ensure proactive implementation of policies for the protection of the destitute and neglected sections of society.
Rather than providing specific relief to the parties before it, the Supreme Court focused on the broader institutional and policy issues at hand. Olga Tellis offers a paradigm example of how the Indian judiciary has elicited political dialogue on issues that would otherwise remain hidden from public scrutiny.
Within a few years, Olga Tellis received widespread publicity and recognition across the world, particularly in developing countries that faced similar challenges involving urban migration. Though the Supreme Court had authorized eviction, it had not legitimized ‘dishousing’.
The real victory in Olga Tellis lay in the undertakings given by the BMC—the undertakings that signified the state’s acceptance of the fact that slum dwellers were indeed entitled to alternative accommodation.
In 1990, the Law Commission of India recognized that although statutory law did not provide adequate protection to slum/pavement dwellers, the court had adopted a humane approach in affording them reasonable protection.
Throughout the 1990s, courts in India predominantly upheld the principles laid down in Olga Tellis, asserting that the state is constitutionally obliged to provide housing to the weaker and economically disadvantaged segments of society.
Numerous decisions referred to the right to shelter as expounded in international treaties such as the Universal Declaration of Human Rights (1948) and the International Covenant on Economic, Social and Cultural Rights (1966), and held that this right falls within the ambit of Articles 19, 17 and 21 of the Constitution.
In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, the pavement dwellers of Rakhial Road, Ahmedabad, filed a writ petition when the city’s municipal corporation sought to remove their huts, which had been constructed on footpaths adjoining a main road.
In an interim order, the Supreme Court requested the Ahmedabad Municipal Corporation to formulate a scheme to provide alternative accommodation to the pavement dwellers. The court’s judgement reiterated the principles laid down in Olga Tellis and affirmed that the ‘encroachers’ were to be given an opportunity to opt for one of a few available schemes for their rehabilitation.
Shantistar Builders v. Narayan Totame was a case concerning the allotment of flats to the weaker sections of society. The Supreme Court went a step further by emphasizing the significance of a minimum standard of accommodation, which is interlinked with a certain quality of life:
The difference between the need of an animal and [that of] a human being for shelter has to be kept in view. For the animal, it is the bare protection of the body; for a human being, it has to be a suitable accommodation, which would allow him [or her] to grow in every aspect—physical, mental and intellectual . . . It is not necessary that every citizen must be ensured of living in a well-built, comfortable house, but a reasonable home, particularly for people in India, can even be a mud-built thatched house or a mud-built fireproof accommodation.
Olga Tellis highlighted the connection between the right to livelihood (said to fall within the sweep of Article 21) and the proximity of slums to the workplace. Hence, the right to shelter was constitutionally protected through its indirect but inevitable link with the right to livelihood.
However, subsequent decisions (as cited previously) recognized that the right to housing was independently a part and parcel of the right to life.
In another case involving the compulsory acquisition of land to provide housing for Scheduled Castes (SC), the court specifically rejected the argument that when the right to livelihood was intertwined with the right to occupy land, the land could not be acquired by the state.
The precedential value of Olga Tellis was not significantly tarnished by this case, since the ‘right to livelihood’ argument was invoked by powerful landowners against a social justice endeavour—a proposition which, if accepted by the court, would defeat the very substratum on which it was built.
Another notable consequence of Olga Tellis was that several concepts outlined by the Supreme Court, including a bright-line ‘cut-off date’ and the right to rehabilitation, were accorded statutory recognition under the (amended) Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971.
In the years that followed, there was a symbolic shift in the Supreme Court’s approach towards the displacement of disadvantaged sections of society and their fundamental right to shelter.
In 1994, the Narmada Bachao Andolan (NBA), an NGO led by social activists including Medha Patkar, filed a writ petition in the Supreme Court seeking a restraint on the construction of the Sardar Sarovar Dam on the Narmada river.
The NBA underscored the forced displacement of lakhs of tribal and rural families in the Narmada Valley (who were opposed to being rehabilitated) as well as serious environmental degradation as the grounds for halting the ambitious project.
Initially, the court presented a ray of hope to human rights activists by admitting the petition and issuing a stay on the further construction of the dam. Construction remained in abeyance until 1999.
In 2000, the Supreme Court allowed the dam height to be raised and authorized its phased construction—in disregard of its own decisions in Olga Tellis and several other cases emphasizing the significance of the right to shelter.
Granting compensation and rehabilitation to the displaced, the court reasoned that the displacement of tribals and other persons on account of construction would not ‘per se result in the violation of their fundamental or other rights’.
The court’s simplistic and myopic approach was evident in its assertions that, after rehabilitation, the tribals would be in a better position than they were already in and they would have ‘better amenities than which they enjoyed in their tribal hamlets’.
Apart from contravening established precedent, the Supreme Court’s decision appeared to offer moral rather than legal grounds for the displacement of the tribals. By allowing construction of the dam, the court took the number of persons displaced by the project to a staggering 3,20,000,26 affixing its stamp of approval on the largest court-sanctioned forced eviction in the world.
Starting from 1999, the Supreme Court, from time to time, allowed the height of the dam to be increased. Most recently, on 8 May 2006, the Supreme Court allowed the height of the dam to be increased to 121.92 metres.
But, ironically, reports, including one dated as recent as 31 October 2010, suggest that over 2,00,000 people affected by the construction of the Sardar Sarovar Dam still remain under constant threat of flooding and are yet to be compensated.
A telling indicator of the significant transition in the attitude of Indian courts towards slum/pavement dwellers and encroachers is the harsh and insensitive language used by courts in recent times.
The Supreme Court touched its lowest point in Almitra Patel v. Union of India.
Almitra Patel, a resident of Kothnur village, Bangalore, filed a writ petition concerning the inadequate solid waste management facilities in Delhi. In its judgement, the court said that providing alternative accommodation to slum/pavement dwellers was comparable to rewarding a pickpocket, and suggested that ‘land grabbers’ should be dealt with with an iron fist.
Interestingly, this case also reflects a drift in the focus of the Supreme Court with the emergence of what are loosely described as ‘third generation rights’, including the right to a clean and healthy environment and inter-generational equity.
Faced with a clash between second and third generation rights, the Supreme Court has often allowed the latter to prevail over the former, without making serious attempts to reconcile the two. This is one of the reasons why the Supreme Court has been described as ‘pro human rights but anti-poor’30 in recent times.
Even as Indian courts have digressed from the approach adopted in Olga Tellis, constitutional instruments and courts in other parts of the world have recognized that the state is duty-bound to devise and implement coherent programmes to provide decent housing.
The constitutions of Argentina, Brazil and South Africa impose an obligation upon the government to provide adequate shelter to its citizens. One of the most significant decisions in the context of the right to shelter was made in Government of the Republic of South Africa v. Grotboom.
Hundreds of people living in atrocious conditions, as they awaited allocation of subsidized housing, petitioned the Constitutional Court of South Africa for temporary shelter. The court found that the state’s housing programmes failed to meet the constitutional demand of providing access to adequate housing.
As the Supreme Court of India had done in Olga Tellis, rather than granting immediate relief to the parties before it, the South African court also focused on rectifying the broader defects in the state housing policy. Courts acting alone cannot tackle the challenge of slum redevelopment and rehabilitation.
They need the support of well-executed social welfare policies and economic development strategies. Taking slum/pavement dwellers into confidence via an inclusive and participatory process would be an advisable approach to ensure the progressive realization of the right to housing as an inalienable right.
That said, how the courts treat slum/pavement dwellers also significantly affects the attitude of policymakers and the society in general.
In the years to come, Indian courts will be called upon to achieve a harmonious balance between the right to shelter, a wholesome environment, economic development and a sustainable ecosystem.
Although Olga Tellis has not been formally overruled, its scope and effect have been significantly weakened from 1990 onwards. Yet, as a Constitution-Bench judgement of one of the most powerful courts in the world, it still acts as a strong reminder that the court will not remain a silent spectator when the human rights of the lowest rungs of society are about to be trampled upon.