Seminar on Judicial Power

First Draft 11/1/02

A Fundamental Right To Shelter?: Analyses of the Indian Judicial Systems in

Addressing the Problem of Homelessness

II. India's Experience with Litigation for the Homeless: Olga Tellis v. Bombay
Municipal Court

A. Mumbai's Population Crisis

As of March 1, 2001, India's population totaled 1,027,015,242, or roughly 16.7%

of the world's population.1 The population of Mumbai (formerly Bombay) is currently

estimated at 13 million.2 Approximately 55% or 6 million of Mumbai's population are

technically homeless.3 In contrast, the entire population of Georgia is a little over 8

million.4 While some of these individuals live in shanties or slums, most live on the city's

sidewalks and streets and are referred to as "pavement dwellers." 5 In the heart of

Mumbai lies Dharavi, claimed to be the "largest slum in Asia" and home to

approximately 700,000 people.6 These huge slums in Bombay and other Indian cities

began growing at rapid rates after India's Independence in 1947 when a large migration of

people from the countryside began to turn to employment opportunities there in order to

survive. In almost everyway, the Government's capacity to keep up with the city's rapid

growth has failed. According to one report, Mumbai is a "picture of pollution, inadequate

landfills, hazardous industrial wastes, chemical related disasters and rampant disease."7

1
See InfoChange, Books & Reports,
http://www.infochangeindia.org/bookandreportsst2.jsp, on Oct. 31, 2002.
2
See Bombay to Mumbai Past, Present and Future, viewed at
http://www.newint.org/issue290/bombay/htm, at Oct. 31, 2002.
3
See Bombay to Mumbai Past, Present and Future, viewed at
http://www.newint.org/issue290/bombay/htm, at Oct. 31, 2002.
4
See (get census cite).
5
Id.
6
Id.
7
Id.
1
 Seminar on Judicial Power
First Draft 11/1/02
B. Olga Tellis v. Bombay Municipal Corporation: Case Background

Against this backdrop of Mumbai's population and housing crisis, the Olga Tellis

case arose, India's seminal case on homelessness and the right to housing. On July 13,

1981, it was reported that the Chief Minister intended to launch an immense "Pavement

Clearance" program in order to remove approximately 100,000 of the Mumbai's

pavement dwellers outside the city's limits. 8 The Chief Minister justified this program by

concluding that the pavement dwellers live 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."9 Ten days later, "on one of the worst days of the monsoon, "the

Government began deporting the pavement dwellers without any prior notice. 10

According to the People's Union for Civil Liberties (PUCL), the pavement dwellers' huts

were destroyed, "[f]amilies were separated, young children and old people died and a

woman even delivered a child on one of the buses."11

On the same day, the PUCL moved the Bombay High Court to issue an

injunction to stop the deportation.12 During the injunction hearing, counsel for the PUCL

made clear that he was not arguing that the pavement dwellers had a fundamental right to

live on the pavement or to housing or shelter in general. 13 Instead, the PUCL's intent was

to "advocate the adoption and implementation of policies which would ensure an

adequate supply of basic shelter in a planned manner which would then preclude the

possibility of vast numbers of people having to devise solutions to their shelter problem
8
The Shunned and Shunted, The Slum and Pavement Dwellers of Bombay, a report by
the People's Union for Civil Liberties, pg. 3 (Sept. 15, 1983).
9
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. (check cite)
10
See Shunned and Shunted, supra note 8, at 3.
11
Id.
12
Id.
13
Id.
2
 Seminar on Judicial Power
First Draft 11/1/02
which run counter to good city management." 14 The court granted PUCL's injunction to

stop the demolition of the hutments until the end of the monsoon, and the PUCL

subsequently petitioned the Supreme Court which it felt was the only forum capable of

deciding such "wide-ranging and important issues." 15 At the same time, Olga Tellis, a

journalist, filed a separate petition to the Supreme Court arguing that the pavement

dwellers had a fundamental right to live on the pavement. 16 However, both Ms. Tellis

and the PUCL advocated that the Government could not evict the pavement dwellers

without providing some sort of alternative living. As a result of these petitions, interim

orders were passed to prevent further demolition of the hutments unless certain

procedures were followed, including the giving of a 72-hour notice of the Government's

intent.17

B. Case Discussion: Arguments and Analysis

1. Arguments

Justice Chandrachud, writing for the majority, first addressed the petition of the

PUCL that the pavement dwellers could not be evicted by the BMC without being

"offered alternative accommodation."18 The PUCL contended that the BMC's demolition

of the pavement dwellers hutments violated Article 21 of the Constitution which

"guarantees that no person shall be deprived of his life except according to procedure

established by law" and Article 19, which guarantees the "right to reside and settle in any

part of the country."19 Additionally, the petitioners asked the Court to declare that

14
Id. (preface).
15
Id. at 4.
16
Id.
17
Id.
18
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, 183-84. (check cite)
19
Id. at 184.
3
 Seminar on Judicial Power
First Draft 11/1/02
provisions 312, 313 and 314 of the Bombay Municipal Corporation Act (BMC Act),

which provided for the removal, as invalid and violative of Articles 14, 19 and 21.20

In response, the Government contended that these provisions of the BMC Act

were not unconstitutional, but rather were enacted for the public interest.21 According to

the BMC, the removal of the hutments were necessary to prevent "hazards of health and

safety," crime, and that "no person has any legal right to encroach upon or to construct

any structure on a foot-path, public street or any place over which the public has a right

of way."22 The Government then provided examples of various Government programs

and policies designed to combat the huge population influx into the city, and associated

poverty and urbanization, concluding that "[t]he problem of poverty has to be tackled by

changing the structure of the society in which there will be a more equitable distribution

of income and greater generation of wealth."23

In reply, petitioner PUCL contended that the BMC's demolition and deportation

proceedings were unreasonable and unfair, and therefore unconstitutional because the

hutments did not pose a threat to public health and safety, they had lived in their

hutments for "generations," and that they "make[ ] a significant contribution to the

economic life of the city."24 In sum, the PUCL contended that the BMC's action's

violated the pavement dwellers right to live and subsist, but not the right to live on the

pavement necessarily.25

20
Id. at 181-82,185.
21
Id. at 186.
22
Id. at 185.
23
Id. at 186.
24
Id. at 187.
25
Id.
4
 Seminar on Judicial Power
First Draft 11/1/02
The Court then reviewed the reasons advanced by Ms. Tellis in her petition for

the enormous growth of hutment settlements, which can be summarized as the lack of

cities to abide by their Development and Master Plans.26 According to Ms. Tellis, the

pavement dwellers choose their living sites because of their close approximation to work

opportunities and other important city facilities including schools, hospitals and

transportation. Ms. Trellis contends that only the "regional distribution of job

opportunities" on adequate vacant land within in the City and the building of an

associated infrastructure can remedy the city's population and housing crisis.27 The Court

summarized Ms. Tellis arguments in the following statement:

The right to live and the right to work are integrated and inter-dependant and,

therefore, if a person is deprived of his job as a result of his eviction from a slum

or a pavement, his very right to live is put in jeopardy. It is urged that the

economic compulsions under which these persons are forced to live in slums or

on pavements impart to their occupation the character of a fundamental right.28

However, the BMC countered that the pavement dwellers were estopped from

claiming that living on the pavement constituted a fundamental right because their

counsel specifically conceded that there was no such fundamental right during the initial

injunction proceedings.29

2. Analysis

The Court specifically rejected the BMC's argument that the pavement dwellers

were estopped from arguing that living on the pavement constitutes a fundamental right:

26
Id. at 188.
27
Id. at 189.
28
Id. at 190.
29
Id. at 192.
5
 Seminar on Judicial Power
First Draft 11/1/02
"No individual can barter away the freedom conferred upon him by the Constitution. A

concession made by him in a proceeding, whether under a mistake of law or otherwise,

that he does not possess or will not enforce any particular fundamental right, cannot

create an estoppel against him in that or any subsequent proceeding."30 With this

statement, the Court then considered the validity of the petitioner's contentions. First,

the Court concluded that the right to life is inextricably linked to a right to

livelihood, concluding that "[i]t is the most precious liberty, because it sustains and

enables a man to live and the right to life is a precious freedom."31 While the Court

reasoned that the Government could not be compelled to provide "adequate means

of livelihood," it held that "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."32 Then, departing

from the typical evidentiary standards of proof of harm or violation of a fundamental

right as required in the United States, the Court indicated that empirical data and expert

studies could be relied upon to infer that the demolition of the pavement dweller's

hutments and their deportation outside the city would deprive them of a livelihood.33

According to the Court, "[c]ommonsense, which is a cluster of life's experiences, is often

more dependable than the rival facts presented by warring litigants."34 A notable fact

which related studies uncovered relied on by the Court was that even after they are

evicted, pavement dwellers return to the streets of Bombay, often to the same places from

30
Id. at 192-93.
31
Id. at 194.
32
Id.
33
Id. at 195.
34
Id.
6
 Seminar on Judicial Power
First Draft 11/1/02
which they were evicted, because that is the only place they can find work.35 In

conclusion, the Court determined that the pavement dwellers eviction would lead to

the deprivation of their livelihood and ultimately their life.36

However, despite holding that the petitioner's indeed had a right to livelihood (to

live on the pavement) and that such right was violated, the Court was not done with its

analysis. This is because Article 21 of the Constitution will allow a fundamental right to

be deprived by the Government, as long as it does so according to a procedure established

by law. Here, the law at issue is the BMC Act, specifically provisions 312, 313, and 314

discussed above. Therefore, the procedures provided for in the Act to remove

encroachments on the pavement must be "fair, just and reasonable" to pass constitutional

muster.37

The Court initially stated that section 314 of the Act, which provides for the

removal of encroachments on the pavements was not unfair or unreasonable under Article

21.38 Section 314 provides that the Commissioner "may, without notice, take steps for

the removal of encroachments in or upon any street, channel, drain, etc."39 In arriving at

this conclusion, the Court reasoned that 1) the pavements were intended for public, not

private use; 2) because the pavement dwellers used public property for public use they

were considered trespassers; and 3) as such their use of the pavements creates a nuisance

35
Id. The Court noted "it is estimated that about 200 to 300 people enter Bombay every
day in search of employment." Id.
36
Id.
37
Id. at 196 ("Any action taken by a public authority which is invested with statutory
powers has, therefore to be tested by the application of two standards: The action must
be within the scope of the authority conferred by law and secondly, it must be
reasonable").
38
Id.
39
Id. at 198.
7
 Seminar on Judicial Power
First Draft 11/1/02
to the public passing by and creates traffic hazards.40 Then, after looking to the plain

meaning of section 314, the Court interpreted as conferring on the Commissioner

"discretion to cause an encroachment to be removed with or without notice" which must

be "exercised in a reasonable manner so as to comply with the constitutional mandate" of

Article 21.41 Nonetheless, the Court emphasized the importance of notice: "Both the right

to be heard from, and the right to be told why, are analytically distinct from the right to

secure a different outcome: these rights to interchange express the elementary idea that

to be a person rather than a thing, is at least to be consulted about what is done with

one."42

The Court then dismissed the BMC's arguments regarding the pavement dweller's

trespass, stating that even if they were trespassing on public property, their trespass was

involuntary and "'the trespasser should be asked and given a reasonable opportunity to

depart before force is used to expel him."43 The Court further rejected the BMC's

contention that the pavement dwellers exhibited criminal tendencies, noting that they are

a "peaceful lot" who were not inclined to lose their jobs or dwelling, regardless of how

humble, by engaging in criminal activity.44

40
Id. at 197-98.
41
Id. at 199. The Court rejected the BMC's argument that "no useful purpose could be
served by issuing a notice as to why an encroachment on a public property should not be
removed" because "no effective answer could be given" in response. Id. The Court
noted that to find otherwise "betrays a misunderstanding of the rule of hearing, which is
an important element of the principles of natural justice." Id.
42
Id. at 200.
43
Id. at 201 (quoting Ramaswamy Iyer's 'Law of Torts' 7th Ed. by Justice and Mrs. S.K.
Desai, p. 98, para. 4.0).
44
Id. at 201-02.
8