byAman GargandShivaang MaheshwariSeptember 11,

A recent three-judge bench of the Supreme Court evicted 48,000 slum dwellings from around 140-km of railway tracks in Delhi within three months. This goes against the five-judge bench judgment in “Olga Tellis” where the Court recognised that the right to life is inclusive of the right to livelihood and the right to housing. In this piece, AMAN GARG and SHIVAANG MAHESHWARI analyse the said order by a three-judge bench.

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The judiciary is the last resort of the distressed, the deprived and the despondent. Naturally, they expect a humanitarian and empathic response from it. But it isn’t always so.

On August 31, 2020, a three-judge bench of the Supreme Court headed by Justice Arun Mishra ordered the removal of nearly 48,000 slum dwellings around 140-km of railway tracks in Delhi within three months with no “interference”, political or otherwise. The bench, which also included Justices B R Gavai and Krishna Murthy, further directed that no other court shall grant any stay with respect to the removal of the slums.

The order struck at the heart of constitutional rights of the underprivileged, rendering them homeless and exposed as there was no rehabilitation mechanism. Ironically, the Court’s judgment is inconsistent with its own order in Olga Tellis v. Bombay Municipal Corporation, rendering it per incuriam (characterised by lack of due regard to the law or facts). It also violates the right to life and livelihood of the slum dwellers.

“Olga Tellis” & Evolution of Second-Generation Rights

Conventionally, human rights were divided into two broad categories: first-generation rights (civil or political) which include the right to life, right against arbitrary detention and the right to freedom. The second is generation rights (social, economic and cultural) such as the right to health and the right to social security. In the 1950s and 1960s, Indian courts only enforced first-generation rights (enshrined under Part III of the Constitution). However, due to a humanitarian approach in 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 in 1985 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 it. 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 states.

The case related to lakhs of slum and pavement dwellers residing near their workplaces being ordered to be evicted by the Bombay Municipal Corporation (BMC) under Section 314 of the Mumbai Municipal Corporation Act, 1888. This authorised the municipal commissioner to remove encroachments without prior notice. A writ petition was then filed before the Supreme Court challenging the constitutional validity of the said Section.

The candid manner in which the five-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 right to livelihood and the right to housing. One of the main reasons behind this was the fact that the law cannot provide a person with something (right to life) but can deprive him of the means (livelihood and housing) without which the former is meaningless. For instance, the right to own an electronic appliance has no meaning unless there is a corresponding right to electricity. The right to life becomes illusory if one is deprived of the means of livelihood.

Olga Tellis was one of the pioneering cases which recognised 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 it.

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 this neglected section of society. It further granted a stay on eviction for a month due to the monsoons at the time. The Court authorised the “eviction” but refused to legitimise “dishousing”.

Digressing from the “Olga Tellis” case

The general trend of the Supreme Court is to stand up for the disadvantaged cause (even overlooking some procedural lapses they might have made). This is not the first time that the Court is differing from the Olga Tellis judgment; there are other cases too where it has digressed from this principle.

One of them was the Narmada Bachao Andolan v. Union of Indiain which the Supreme Court’s advocacy of the precautionary principle among others were not followed. Instead, what was seen was an overwhelming adherence to “national interest” and the adoption of a utilitarian approach by the Court. It held that the dam’s construction, resulting in the displacement of thousands of people, must be allowed for the greater common good.

What is surprising is that the Court noted that there would be violations of Article 21 and Convention 107 of the International Labour Organisation on the forcible or wrongful displacement of the Project Affected Persons. It took an extended view of Article 21 and recognised the right to rehabilitation in a just and equitable manner. Article 21 held supreme 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 recognised. 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 taxpayer’s cost, in place of jhuggis is a proposal, which attracts more land grabbers. Rewarding an encroacher on public land with free land is like giving reward to a pick pocket.”

Ignoring past judgments

Given that the judgment in Olga Tellis was delivered by a five-judge bench, the present three-judge one is bound to follow the precedent. But it passed an order without deliberating on the points laid down by the former with regard to providing alternative accommodation, rehabilitation, etc. With a pandemic raging, one wonders how the slum dwellers will now cope with life.

In Narmada Bacho Andolan v. Union of India, the Supreme Court’s advocacy of the precautionary principle among others was not followed. Instead, what was seen was an overwhelming adherence to “national interest” and the adoption of a utilitarian approach by the Court. It held that the dam’s construction, resulting in the displacement of thousands of people, must be allowed for the greater common goo

The Courts, as argued by Prof Upendra Baxi in his essay “Exodus Constitutionalism”, need to adopt an individualised approach rather than a common one. In rehabilitation cases, each of those in the 48,000 slum dwellings should be seen as distinct individuals rather than collectively “slum dwellers”. Some of these slum dwellers are women, children, or senior citizens. Each has their individual suffering and this must be accounted for.

Justice, like the railway tracks, is indeed long and winding for them.

courtesy Caravan

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