Olga Tellis v Bombay Municipal Corporation (1985)

For a Unit on the constitutional foundations of labour law, this is the case that puts livelihood inside the right to life. The Court holds that Article 21 is not exhausted by protection against the taking of life; an equally important facet of it is the right to livelihood, because a man deprived of his means of living is deprived of life itself. Since Article 21 forbids deprivation except by procedure established by law, and that procedure must be just, fair and reasonable, the effect is that any deprivation of livelihood must satisfy a fair procedure — and that proposition is the one later carried into service and industrial cases as the constitutional underpinning of security of employment.

Two further holdings are examinable in their own right. There can be no estoppel against the Constitution: a party who concedes a fundamental right away in one proceeding is not shut out from asserting it afterwards. And a discretionary power to act without notice is an enabling power, to be exercised reasonably; it is not a command to dispense with the hearing.

The judgment is equally famous for what it did not hold. The petitioners did not win a right to remain; they won a right to a fair procedure and the enforcement of the State's own assurances about resettlement.

The petitioners in Writ Petitions Nos. 4610-12 of 1981 lived on the pavements and in the slums of the city of Bombay. In the second batch, Writ Petitions Nos. 5068-79 of 1981, some were residents of Kamraj Nagar, a basti alleged to have come into existence in about 1960-61 near the Western Express Highway, and others lived in structures put up off the Tulsi Pipe Road, Mahim. The People's Union for Civil Liberties, the Committee for the Protection of Democratic Rights and two journalists joined in the petitions. The persons concerned constituted nearly half the population of the city.

Some time in 1981 the State of Maharashtra and the Bombay Municipal Corporation decided that all pavement dwellers and slum or busti dwellers in Bombay would be forcibly evicted and deported to their places of origin or removed to places outside the city. Pursuant to that decision the pavement dwellings of some petitioners were in fact demolished.

Some of them had earlier moved the High Court, where they conceded that they could not claim any fundamental right to put up huts on pavements or public roads and gave an undertaking to vacate on or before 15 October 1981; on that undertaking the respondents agreed that the huts would not be demolished until that date, and the petition was disposed of accordingly.

They then came to the Supreme Court under Article 32.

The opening paragraphs describe the conditions without euphemism: those who have made pavements their homes "exist in the midst of filth and squalor, which has to be seen to believed"; no conveniences are available to them; the boys beg; menfolk without occupation snatch chains. It is these men and women, the Court records, who came to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation, and — this is the crucial concession — "They do not contend that they have a right to live on the pavements."

For the petitioners, it was urged that evicting a pavement dweller from his habitat deprives him of his right to livelihood, which is comprehended in Article 21; that the action violated Articles 19(1)(e), 19(1)(g) and 21; that the procedure in s. 314 of the Bombay Municipal Corporation Act was arbitrary and unreasonable because it not only failed to provide for notice before removal of an encroachment but expressly enabled the Commissioner to cause encroachments to be removed without notice; and that it was constitutionally impermissible to characterise pavement dwellers as "trespassers" since their occupation arose from economic compulsion.

For the respondents, it was contended that the petitioners were estopped by their concession and undertaking in the High Court; that no one has a legal right to encroach upon a footpath or public street, and Article 19(1)(e) cannot be read as conferring a licence to trespass upon public property; that ss. 312, 313 and 314 were conceived in the public interest; that the Kamraj Nagar huts stood on an accessory road forming part of the Highway and had never been regularised; and that no deprivation of life, direct or indirect, was involved in evicting a pavement dweller, the Corporation being under an obligation under s. 314 to remove obstructions.

The Court dealt with the preliminary objection first. "There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws." The doctrine of estoppel rests on the principle that consistency in word and action imparts certainty and honesty to human affairs, and operates where a person acts to his prejudice on another's representation; but that principle "can have no application to representations made regarding the assertion or enforcement of fundamental rights."

Fundamental rights are conferred not only for the benefit of individuals but to secure the larger interests of the community, in fulfilment of the promise of the Preamble. Accordingly, "No individual can barter away the freedoms conferred upon him by the Constitution", and a concession made in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce a particular fundamental right, "cannot create an estoppel against him in that or any subsequent proceedings." Such a concession, if enforced, "would defeat the purpose of the Constitution."

The petitioners were therefore entitled to assert the right notwithstanding their concession — how far the claim was well founded being another matter, but one that had to be examined.

The Court also held the petitions maintainable under Article 32: where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move the Supreme Court, and the petitioners' case was precisely that the procedure in s. 314, being arbitrary and unfair, was not "procedure established by law" within Article 21.

For the purposes of argument the Court assumed the factual correctness of the premise that eviction would deprive the petitioners of their livelihood, and asked whether the right to life includes the right to livelihood. "We see only one answer to that question, namely, that it does."

The reasoning is the passage that the case is cited for:

"The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood 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, if livelihood were not part of life, that deprivation would not even have to conform to the procedure established by law. Hence: "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."

The Court added the empirical corroboration: this "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 of that desertion of hearth and home is the struggle for survival, "that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood."

It drew on Douglas J's observation in Baksey that the right to work is the most precious liberty because it sustains and enables a man to live, and on Field J in Munn v Illinois, that "Life" means something more than mere animal existence and the inhibition against deprivation of life extends to all those limbs and faculties by which life is enjoyed — an observation approved in Kharak Singh v State of U.P.

Article 39(a) directs the State to secure that citizens, men and women equally, have the right to an adequate means of livelihood; Article 41 requires effective provision, within the limits of economic capacity, for securing the right to work in cases of unemployment and of undeserved want; and Article 37 makes the Directive Principles, though unenforceable, fundamental in the governance of the country.

Those principles "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 Court then drew the line that keeps the holding workable. "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."

In Re: Sant Ram, where a Constitution Bench had held that the language of Article 21 could not be pressed in aid of the argument that "life" includes "livelihood", was distinguished, not overruled.

The Court declined to throw out the petitions for want of evidence that the petitioners would be rendered jobless. In a matter where the future of half the city's population is at stake, the Court must consult authentic empirical data compiled by agencies official and non-official; "Common sense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants."

Expert studies showed that a main reason for the growth of squatter settlements in metropolitan cities is the availability of job opportunities lacking in the rural sector, and the undisputed fact that squatters return even after eviction proved the point. Such persons live on pavements because they have small jobs to nurse in the city and nowhere else to live; they choose a pavement or slum near their place of work, the time and cost of commuting being forbidding for their slender means. "To lose the pavement or the slum is to lose the job." The conclusion, in constitutional terms, was that eviction "will lead to deprivation of their livelihood and consequently to the deprivation of life."

That conclusion did not end the case, because "The Constitution does not put an absolute embargo on the deprivation of life or personal liberty." The procedure prescribed by law for such deprivation "must be fair, just and reasonable": "unreasonableness vitiates law and procedure alike." Action by a statutory authority must therefore satisfy two standards — it must be within the scope of the authority conferred by law, and it must be reasonable; and "The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it."

On the construction of s. 314, the Court held it "in the nature of an enabling provision and not of a compulsive character". It says that the Commissioner may, without notice, cause an encroachment to be removed; "It does not command that the Commissioner, shall without notice, cause an encroachment to be removed." It therefore confers a discretion to act with or without notice, to be exercised reasonably so as to comply with the constitutional requirement of a fair procedure — a construction the Court preferred because it sustains the validity of the law.

Natural justice was thus excluded "by way of exception and not as a general rule". The ordinary rule is that persons likely to be affected must be given an opportunity of being heard, individually or collectively as the situation requires; a departure may be presumed to have been intended "only in circumstances which warrant it", and the burden lies on those who affirm the existence of such circumstances. The Court rejected the argument that notice is unnecessary where there can be no answer to the proposed action: that overlooks "that justice must not only be done but must manifestly be seen to be done". "The appearance of injustice is the denial of justice." The right to be heard has both an intrinsic and an instrumental value, the intrinsic value lying in the opportunity to participate in the decisions that operate against one, "an opportunity that expresses their dignity as persons."

On the facts, however, s. 314 as so construed was held not unreasonable, unfair or unjust, there being "no static measure of reasonableness which can be applied to all situations alike."

Footpaths and pavements are public properties intended for the convenience of the general public, laid mainly so that pedestrians may go about their daily affairs with a reasonable measure of safety and security — a facility "which has matured into a right of the pedestrians". Using public property for a private purpose without authorisation makes the user a trespasser, and "Putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass."

But the Court refused to treat the petitioners as criminals. Their object was not to "commit an offence or intimidate insult or annoy any person", which is the gist of criminal trespass under s. 441 of the Penal Code; they find a habitat in places mostly filthy or marshy "out of sheer helplessness", and their encroachments "are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice." Even the law of torts requires that a trespasser be asked and given a reasonable opportunity to depart before force is used, and that no greater force be used than is reasonable and appropriate.

The Court would accordingly have directed the Commissioner to afford the petitioners an opportunity to show cause; but the opportunity denied by the Commissioner had been granted by the Court itself "in an ample measure", both sides having argued fully on facts and law. On those contentions, the Commissioner was held justified in directing removal of the encroachments on pavements, footpaths or accessory roads.

1. The petitions were maintainable under Article 32, the challenge being to procedurally ultra vires action.
2. There can be no estoppel against the Constitution; a concession or undertaking in an earlier proceeding does not bar the assertion of a fundamental right.
3. The right to life in Article 21 includes the right to livelihood. Deprivation of livelihood is deprivation of life, and can be effected only by a just and fair procedure established by law; the State is not, however, compellable by affirmative action to provide work or livelihood. Articles 39(a) and 41 are equally fundamental in interpreting the content of Article 21. In Re: Sant Ram distinguished.
4. On the evidence, eviction would deprive these petitioners of their livelihood and hence of life — "To lose the pavement or the slum is to lose the job."
5. Section 314 is an enabling, not a compulsive, provision: it confers a discretion to remove with or without notice, which must be exercised reasonably; so construed it is not unreasonable, unfair or unjust.
6. No person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose such as a garden or playground; and the Kamraj Nagar Basti stood on an accessory road leading to the Western Express Highway.
7. The assurances given by the State Government in its pleadings were held binding and directed to be made good: pavement dwellers censused in 1976 to be given, though not as a condition precedent to removal, alternate pitches at Malavani or another convenient place not farther away; slum dwellers with identity cards whose dwellings were numbered in the 1976 census to be given alternate sites; slums in existence for twenty years or more which had been improved and developed not to be removed unless the land was required for a public purpose, in which case alternate sites or accommodation to be provided; the Low Income Scheme Shelter Programme to be pursued earnestly and the Slum Upgradation Programme implemented without delay. No slum or pavement dwelling, censused or uncensused, was to be removed until 31 October 1985, one month after the end of the monsoon.
8. The writ petitions were disposed of accordingly, with no order as to costs.

The right to life guaranteed by Article 21 comprehends the right to livelihood, so that a person deprived of his means of living otherwise than by a just and fair procedure established by law may challenge the deprivation under Article 21. The Directive Principles in Articles 39(a) and 41 are legitimate aids to fixing that content, though they do not make the State compellable to provide work. A statutory power to act without notice is enabling only and must be exercised reasonably, natural justice being excluded by exception and never as a general rule, the burden lying on the party asserting the exception. And no concession or undertaking can estop a person from asserting a fundamental right.