EXPLAINER
The story so far: A 37-year-old Constitution Bench judgment of the Supreme Court which held that pavement dwellers are different from trespassers may become a game-changer in the Jahangirpuri case. The apex court ruled that pavement dwellers live on “filthy footpaths out of sheer helplessness” and not with the object of offending, insulting, intimidating or annoying anyone. They live and earn on footpaths because they have “small jobs to nurse in the city and there is nowhere else to live.”
What is the Olga Tellis judgment?
The judgment, Olga Tellis vs Bombay Municipal Corporation, in 1985 by a five-judge Bench led by then Chief Justice of India Y.V. Chandrachud agrees that pavement dwellers do occupy public spaces unauthorised. However, the court maintained they should be given a chance to be heard and a reasonable opportunity to depart “before force is used to expel them.”
The Supreme Court reasoned that eviction using unreasonable force, without giving them a chance to explain is unconstitutional. Pavement dwellers, too, have a right to life and dignity. The right to life included the right to livelihood. They earn a meagre livelihood by living and working on the footpaths. A welfare state and its authorities should not use its powers of eviction as a means to deprive pavement dwellers of their livelihood.
What led to the judgment?
Sometime in 1981, the State of Maharashtra and the Bombay Municipal Corporation decided that pavement and slum dwellers in Bombay city should be evicted and “deported to their respective places of origin or places outside the city of Bombay.” Some demolitions were carried out before the case was brought to the Bombay High Court by pavement dwellers, residents of slums across the city, NGOs and journalists. While they conceded that they did not have “any fundamental right to put up huts on pavements or public roads”, the case came up before the Supreme Court on larger questions of law.
What were the questions discussed before the Supreme Court?
One of the main questions was whether eviction of a pavement dweller would amount to depriving him/her of their livelihood guaranteed under Article 21 of the Constitution. The Article mandates that “no person shall be deprived of his life or personal liberty except according to procedure established by law.” The Constitution Bench was also asked to determine if provisions in the Bombay Municipal Corporation Act, 1888, allowing the removal of encroachments without prior notice, were arbitrary and unreasonable. The Supreme Court also decided to examine the question whether it was constitutionally impermissible to characterise pavement dwellers as trespassers.
What was the State government’s defence?
The State government and the corporation countered that pavement dwellers should be estopped (estoppel is a judicial device whereby a court may prevent or “estop” a person from making assertions. Estoppel may prevent someone from bringing a particular claim) from contending that the shacks constructed by them on the pavements cannot be demolished because of their right to livelihood. They cannot claim any fundamental right to encroach and put up huts on pavements or public roads over which the public has a ‘right of way.’
How did the Supreme Court rule?
The Bench threw out the government’s argument of estoppel, saying “there can be no estoppel against the Constitution.” The court held that the right to life of pavement dwellers were at stake here. The right to livelihood was an “integral component” of the right to life. They can come to court to assert their right. “If the right to livelihood is not treated as a part of the constitutional right to live, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation… 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,” the Constitution Bench observed.
Again, on the second question whether provisions in law allowing statutory authorities to remove encroachments without prior notice was arbitrary, the court held that such powers are designed to operate as an “exception” and not the “general rule.” The procedure of eviction should lean in favour of procedural safeguards which follow the natural principles of justice like giving the other side an opportunity to be heard. The right to be heard gives affected persons an opportunity to participate in the decision-making process and also provides them with a chance to express themselves with dignity, the court had observed.
Finally, the court emphatically objected to authorities treating pavement dwellers as mere trespassers. “They (pavement dwellers) manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachment committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice,” the Supreme Court had reasoned. Besides, the court noted, even trespassers should not be evicted by using force greater than what is reasonable and appropriate. What is more, the court had said, a trespasser “should be asked and given a reasonable opportunity to depart before force is used to expel him.”
