Right to life is not mere animal existence: The landmark verdict of the Olga Tellis case, 10 July 1985

The Supreme Court declared in the Olga Tellis case on 10 July 1985 that the right to life guaranteed by Article 21 of the Indian Constitution did not mean mere animal existence and included the right to livelihood; this was clearly a landmark decision in the consolidation of India’s constitutional democracy. It was also a moment when Justice Y.V. Chandrachud, then Chief Justice of India, redeemed himself of the ignominy he had covered himself with almost a decade before, on 28 April 1976.

In early January 1978, a host of jurists and public intellectuals signed a statement against the elevation of Justice Chandrachud as Chief Justice of India. They held him guilty of betraying the Constitution by siding with the majority in the Bench that suspended the writ of habeas corpus during the Emergency – the reference was to the A.D.M. Jabalpur vs Shiv Kant Shukla case decided on 28 April 1976. Justice Chandrachud, however, was elevated as Chief Justice of India on 22 February 1978.

On 10 July 1985, heading a Constitution Bench hearing appeals against judgments by the Bombay High Court, then Chief Justice of India Chandrachud redeemed himself with the judgment he wrote on behalf of Justices A. Varadarajan, O. Chinnappa Reddy, Murtaza Fazal Ali and V.D. Tulzapurkar. This judgement rendered a radical definition to Article 21 of the Constitution holding that the right to life ought to also include the right to livelihood.

The dispute before the apex Court arose against decisions by the Bombay High Court allowing eviction of pavement and slum dwellers across the metropolis in the early 1980s. On 13 July 1981, A.R. Antulay – hand-picked and anointed as Chief Minister of Maharashtra by then Prime Minister Indira Gandhi – made an announcement that all pavement dwellers in the city of Bombay will be forcibly evicted and deported to their respective places of origin or displaced to places outside the city. The Chief Minister directed the Commissioner of Police to provide the necessary assistance to the Bombay Municipal Corporation to demolish the pavement dwellings and deport the pavement dwellers.

The Chief Minister “justified” his decision with the following reason: “It is 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.” Antulay, incidentally, at that time had floated several trusts that had amassed huge sums of money from the business establishments and sugar cooperatives across Maharashtra and drafted the trust deeds in a way that he could scoot away with the funds as and when he decided to wind them up. Well. This scam would come to light only in September 1981, when The Indian Express exposed the scandal.

Antulay’s 13 July 1981 order to clean up the city of slums followed a practice that Sanjay Gandhi had initiated in the midst of the Emergency in Delhi’s Turkman Gate and aped across northern Indian states inflicting displacement and sufferings upon the poor. The Olga Tellis case is historical because the decision on 10 July 1985, almost a decade after the regimes went about demolishing slums and evicting the people with legal sanction, called such norms a violation of the fundamental rights guaranteed under Article 21 of the Constitution. The decision ensured constitutional protection against indiscriminate eviction and sufferings inflicted upon poor and marginalized people who were forced to leave their homes in rural India in search of livelihood in the metropolis.

It is relevant to recall the decision as well as its spirit in the context of the present when the higher judiciary is showing definite signs of diluting its core and letting its spirit vanish. The spirit of the decision in Olga Tellis and Others vs Bombay Municipal Corporation (MANU/SC/0039/1985) delivered on 10 July 1985 was to ensure in situ rehabilitation of slum dwellers. The judgement stated that assigning alternative dwelling sites far away from where they had pitched their shanties would force them to commute far from their places of work and thus deprive them of their livelihood.

The judgment was driven by empathy rather than sympathy: rather than showing pity on them, the highest Court of Justice looked at the case from the point of the slum dwellers, who had come before them seeking justice. This was evident in the first paragraphs of the judgment where judges usually describe the case before them. Justice Chandrachud wrote:

These writ petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and basti or slum dwellers. 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 slums remained where they were in Bombay; they did not vanish. The people who made these their abode continue to live there with their progeny because the State and its agencies were denied there by the apex Court decision in the Olga Tellis case the freedom to clean up the shanties and the people who lived in them.

The effect of this landmark judgment was evident in several instances when slums were sought to be removed. On 18 March 2019, a Division Bench of the Delhi High Court decided against the eviction of those who lived in shanties on the banks of the railway lines in Delhi. Justice S. Muralidhar along with Justice Vibhu Bakhru made it clear that rehabilitation was a necessary condition before eviction and that such rehabilitation ought to be in situ and in consultation with the residents. The judges placed reliance on the Olga Tellis decision saying:

For the purposes of the present case, the importance of the decision in Olga Tellis is two-fold: one is the link between the right to shelter and the right to livelihood and how these cannot be separated into different compartments, as both inextricably form part of the life itself; second is that any attempt of deprivation of either right to shelter or right to livelihood, would mandate compliance with basic principles of natural justice i.e. providing a hearing to those sought to be evicted forcibly.

The apex Court was unambiguous about framing the issue before them: “In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be lived.” Addressing this plea, the apex Court held:

[…] the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. 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. (Emphasis added by the author).

This is what the Delhi High Court reiterated in March 2019. “The running theme of the decision in Olga Tellis is the acknowledgement that poverty itself could constitute a barrier to the realization of fundamental rights. The Court was acknowledging the processes of impoverishment where people are forced to migrate to cities and live in squalor just to eke out their livelihood. The Court was acknowledging the need to protect the dignity of inevitable circumstances and are not guided by choice.”

The Bench in the Olga Tellis case delved into the forces that brought the poor dwellers to Bombay and the fact that they lived in the midst of filth and dirt, what they called home. These were considered the outcome of issues inherent to the development process, whose levers were beyond the control of these marginalized sections, who were rather the victims of the circumstances. Citing a Planning Commission’s publication titled The Report of the Expert Group of Programmes for the Alleviation of Poverty (1982), the apex Court held that half of the population in India lives below the poverty line, a large part live in villages but many end up in the cities seeking livelihood. The apex Court went on to add:

The landless labourers, who constitute the bulk of the village population, are deeply imbedded in the mire of poverty. It is due to these economic pressures that the rural population is forced to migrate to urban areas in search of employment. The affluent and the not-so-affluent are alike in search of domestic servants. Industrial and Business Houses pay a fair wage to the skilled workman that a villager becomes in course of time. Having found a job, even if it means washing the pots and pans, the migrant sticks to the big city. If driven out, he returns in quest of another job. The cost of public sector housing is beyond his modest means and the less we refer to the deals of private builders the better for all, excluding none. Added to these factors is the stark reality of growing insecurity in villages on account of the tyranny of parochialism and casteism. […] It is estimated that about 200 to 300 people enter Bombay every day in search of employment. These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is nowhere else to live. Evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being, forbidding for their slender means. To lose the pavement or the slum is to lose the job.

The Court then stressed: “In conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.” It is relevant to track the logic and reasoning that served the basis for the apex Court to arrive at this and expand the scope of Article 21 of the Constitution to include the right to livelihood. The apex Court went about reading the scope of the fundamental rights guaranteed by the Constitution and thus enforceable rights along with the Directive Principles of State Policy. This was established by the apex Court in a plethora of judgments since the historic decision in the Kesavananda Bharti case (AIR 1973 SC 1461) on 24 April 1973. Justice Chandrachud, interestingly, was among the authors of that decision. The reasoning in the Olga Tellis case was as follows:

Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39(a) and 41 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. (Emphasis added by the author).

This reasoning, which read the fundamental rights through the prism of the Directive Principles of State Policy, combined with the progressive shift in the judicial thinking towards the principle of due-process-of-law, turned the decision historic. It may be noted that the Supreme Court’s decision in the Bank nationalization case in February 1970 (1970 AIR 564), though it served the interests of the propertied classes, laid the foundations to the pro-poor tilt in this case involving the rights of the poor.

The Delhi High Court relied upon the Olga Tellis decision of July 1985 in its judgment on 18 March 2019 to stall the removal of slums on either side of the railway tracks in the National Capital. They made it clear that those dwelling in these slums shall not be called “encroachers” and that their rehabilitation ought to be done in situ and they ought to be provided alternative dwelling sites in close proximity and not in far-away locations.

This, however, is a rare exception as the higher judiciary, in the three and half decades since the Olga Tellis case, tended to sanction evictions as long as the state agencies provided for alternative relocation sites. In other words, in situ rehabilitation – the core principle that made the Olga Tellis decision historic – has been lost.

In a clear case of judicial indiscipline, on 31 August 2020 a Supreme Court Bench of only three judges ordered the eviction of 48,000 slums abutting the railway tracks in Delhi. The order that the slums should be removed within a period of three months and no other Court shall stay this order was issued without hearing the slum dwellers even though the Delhi High Court on 18 December 2019 decided against eviction without plans for in situ or nearby rehabilitation.

Moreover, the 31 August 2020 Supreme Court’s order did not have to do with that case or any appeal against the High Court decision. The three-judge bench headed by Justice Arun Mishra along with Justices B.R. Gawai and Krishna Murari – hearing a writ petition pending since 1985 (M.C. Mehta vs Union of India and Others) and heard on several occasions since the petition was first filed – passed an order that day that:

The encroachments which are there in the safety zones should be removed within a period of three months and no interference, political or otherwise, should be there and no Court shall grant any stay with respect to removal of the encroachments in the area in question. In case any interim order is granted with respect to encroachments, which have been made along with railway tracks, that shall not be effective.

The fact that the case before Justice Mishra and the Bench was about the environment and pollution and the existence of the slums or their eviction did not figure in the main plea anywhere ought to have prohibited the judges passing an order of this kind. The fundamental rule is that the Court of Justice shall not indulge in a roving expedition while deciding a writ petition. Moreover, the 31 August 2020 order that the slums be evicted clearly violated the law as laid down by the apex Court in the Olga Tellis case since eviction without rehabilitation constitutes a violation of Article 21 of the Constitution. In other words, it was an instance of judicial indiscipline where a bench of only three judges passed an order that went against the letter and the spirit of the decision by a Constitution Bench. It is another matter that such an order seems to have been left to remain as part of the Court’s records and not yet carried out.

The Olga Tellis decision came when the polity in India was on the cusp of a change, where the rulers were willing to stop pretending to a commitment to the philosophy outlined in Article 39(a) of the Constitution. Liberalizations and privatizations would be announced in July 1991; rural poverty and migrations to the metropolis in search of livelihood – that were at the core of the Olga Tellis decision on 10 July 1985 – were now beginning to be seen as inevitable and full of possibilities of growth.

The essence and the spirit of the Olga Tellis decision, wherein the right to life was found to hinge on the right to livelihood and thus rehabilitation of slum dwellers ought to be in situ, is since being lost.

To argue that slum dwellers shall live in comfort and it is only fair to rehabilitate them even if it is far away from where they lived, as several High Courts have been canvassing in recent times, is not only a judicial indiscipline but also against the empathy that was central to the decision in the Olga Tellis case. This recent trend sanctioning rehabilitation in faraway places instead of in situ is driven by a mindset that comes out of a belief that it is fair enough to send the slum dwellers far away from their places of work because they will live in comfort there and not in dirt and squalor as Antulay, then Chief Minister of Maharashtra, sought to suggest while ordering eviction of the slum dwellers in 1981 disguising his concerns as humane and democratic.

It is then pertinent to cite this part from the Olga Tellis judgment in this context: “what is of crucial importance to the question of thinning out the squatters’ colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to spread the existing job opportunities evenly in urban areas. Apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities.”

It is important to recall the Olga Tellis decision on its thirty sixth anniversary and the fact that it was guided by empathy and a sense of justice. There is a tendency in recent years to look at rehabilitation as a concession or a merciful act by the State. Several High Courts across the country have been sympathetic to the slum dwellers rather than acting with empathy. In this way, the choice of alternative sites far removed from where the slums were and unmindful of its adverse impact on their livelihood relegates dwellers to the background.

This means treating the right to life guaranteed by Article 21 of the Constitution as shorn of the right to livelihood and therefore as mere animal existence.