The Inconsistent Supreme Court: Rights of the Slum Dwellers

-Aman Garg & Shivaang Maheshwari

Introduction

On 31st August, 2020, a 3-judge bench of the Supreme Court headed by Justice Arun Mishra
ordered the removal of nearly 48,000 slum dwellings around the 140-kilometer length of
railway tracks in New Delhi within three months with no ‘interference’, political or
otherwise. The bench, also including Justice BR Gavai and Justice Krishna Murthy, further
directed that no other court shall grant any stay with respect to the removal of the slums.

This article aims to point out the inconsistency of the Supreme Court in following its own
precedent of Olga Tellis v. Bombay Municipal Corporation and how the recent order passed
is per incuriam and contrary to law.

Olga Tellis and the Evolution of Second-Generation Rights

Conventionally, human rights were divided into two broad categories: first generation rights
(civil or political) which includes the right to life, right against arbitrary detention and the
right to freedom – and second-generation rights (social, economic and cultural rights) such as
the right to health and the right to social security. In the 1950s and ‘60s, Indian courts only
enforced the first-generation rights (enshrined under Part III of the Constitution). However,
due to a humanitarian approach in the subsequent years, the courts expanded the scope of
Article 21 to include second generation rights (many of which are given in Part IV of the
Constitution) within its ambit.

Olga Tellis was one of the pioneering cases which recognised these second-generation rights
under Part III of the Constitution. It brought within the ambit of Article 21 the right to shelter
and the right to livelihood which gave a new socio-economic attribute to Article 21. What
was earlier given a negative connotation (fundamental rights preventing the state from acting
in a certain manner) was evolved by the Supreme Court as positive duties to be performed by
the States.

Lakhs of slum/pavement dwellers residing near their workplaces were ordered to be evicted
by the Bombay Municipal Corporation under Section 314 of the Mumbai Municipal
Corporation Act, 1888 which authorised the Municipal Commissioner to remove
encroachments without prior notice. Thus, a writ petition was filed before the Supreme Court
challenging the constitutional validity of the said section.

The candid manner in which the 5-judge bench recognised the ground realities and opened
the judgement is noteworthy. It observed:

“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?”

The Court, for the first time, recognised that the right to life is inclusive of the (second
generation) right to livelihood and right to housing. One of the main reasonings behind this
was the fact that the law cannot provide you with something (right to life) but deprive you of
the means (livelihood and housing) without which the former is meaningless. For instance,
the right to own an electronical appliance has no meaning unless there is a corresponding
right to electricity. Right to life becomes illusory if one is deprived with his/her means of
livelihood.

Although the Apex Court permitted the eviction and upheld the validity of the impugned
section, it did so on several assurances made by the BMC, including providing alternative
accommodation, implementing schemes for rehabilitation and providing equal treatment to
the neglected section of the society. It further granted a stay on eviction for a month due to
the monsoon season at the time. The Court authorised the ‘eviction’ but it refused to
legitimize ‘dishousing’.

Drift from Olga Tellis

The general trend of the Supreme Court is to very actively stand up for the disadvantaged
cause (even overlooking some procedural lapses they might have made). This is not the first
time when the Supreme Court is differing from following Olga Tellis, there are few other
cases in which the apex court has digressed from this principle.
One of them was Narmada Bacho Andolan v. Union of India in which, the Supreme Court’s
advocacy of the precautionary principle among others were not followed. Instead, what we
see here is an overwhelming adherence to “national interest”, and the adoption of utilitarian
approach by the top most court of India in coming to its decision. The Court held that the
dam’s construction resulting in displacement of thousands of people must be allowed for the
greater common good. It is not very often we see the apex court of the country taking a
‘utilitarian approach’ of an environmental PIL.

What is surprising to see is that the Court did note that there would be violations of Article 21
of the Constitution of India and Convention 107 of the ILO on forcible or wrongful
displacement of the Project Affected Persons [PAPs]. It took extended view of Article 21 of
the Constitution of India and recognized the right to rehabilitation in a just and equitable
manner. This has been one of the highlights of the case, that Article 21 has been recognized
and held supreme in an instance where the disadvantaged were in dire need of proper
resettlement measures.

In Almitra H. Patel v. Union of India, the Supreme Court while insinuating criminality on the
slum dwellers and disregarding the principle of Olga Tellis, remarked:

“Establishment or creating slums, it appears to be good business and is well recognized. The
number of slums has multiplied in the last few years by geometrical proportions. Large areas
of public land in this way are usurped for private use free of cost …. The promise of free land
at the taxpayers cost, in place of jhuggis is a proposal, which attracts more land grabbers.
Rewarding an encroacher on public land with free land alternative site is like giving reward
to a pick pocket.”

Conclusion

Given that the judgment in Olga Tellis was delivered by a 5-judge bench, the bench headed
by Justice Arun Mishra (a 3-judge bench) is bound to follow the precedent and must have
discussed the aspects of housing and livelihood at the very least in its order. However, the
Court followed its new trend of not following its precedents and passed an order without
deliberating on the points laid down by Olga Tellis (providing alternative accommodation,
rehabilitation schemes, etc.).
It's not wrong to say that the Court has acted in a way that is inconsiderate towards the rights
of the slum dwellers. Endangering the lives of 48,000 slum dwellers by rendering them
homeless in midst of a pandemic completely disregards their right to life under Article 21.

The Courts, as argued by Prof. Upexdra Baxi in his essay on ‘Exodus Constitutionalism’,
need to adopt an individualised approach rather than a common one. In rehabilitation cases, it
must see the petitioners as 48,000 distinct individuals instead of collectively thingifying them
as ‘Slum Dwellers’. Categorization can have serious pitfalls. Justice has to be an
individualized exercise. Some of these persons are women, children and quite a few are
senior citizens. Although common, their individual sufferings must be accounted.

The authors are undergraduate students at Gujarat National Law University and can be
contacted at amangarg1219@gmail.com and shivaang.maheshwari@gmail.com