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Olga
Tellis v. Bombay Municipal Corporation (herein after
referred as Olga Tellis) was decided in 1985 by the five Judges
Bench of the Supreme Court of India. The Hon'ble bench comprised
of C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O.
Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D. Tulzapurkar.
This case came before the Supreme Court as a writ petition by
persons who live on pavements and in slums in the city of Bombay.
It was prayed by the petitioners to allow them to stay on the
pavements against their order of eviction. The majority judgment
(concurring by all the five Judges) was delivered by Hon'ble
Chief Justice Y.V.Chandrachud.
Factual Score of Olga Tellis
The writ petitions were filed by the slum dwellers and pavement
dwellers before the Supreme Court of India. This class of people
constituted nearly half the population of the city of Bombay. The
respondents - State of Maharashtra and Bombay Municipal
Corporation took a decision that all pavement dwellers and
the slum or bust dwellers in the city of Bombay will be evicted
forcibly and deported to their respective places of origin or
removed to places outside the city of Bombay section 314 of the
Bombay Municipal Corporation Act, 1888. Pursuant to that decision,
the pavement dwellings of some of the petitioners were in fact
demolished by the Bombay Municipal Corporation. The petitioners
challenge the order of the Bombay Municipal Corporation of
eviction as being unreasonable and unjust without providing with
alternative living facility. The petitioners claimed right to
livelihood as a part of their right under Article 21 of the
Constitution that is right to life under Article 32. Moreover,
petitioners contended that sections 312, 313 and 314 of the Bombay
Municipal Corporation Act are invalid as violating Articles 14, 19
and 21.
Issues
Considered by the Apex Court
1. That the order for the eviction of the pavement is the
infringement of their right to livelihood and in turn the
encroachment over their right guaranteed under article 21 of the
Constitution.
2. That the impugned action of the State Government and the Bombay
Municipal Corporation is violative of the provisions contained in
Article 19(1) (3), 19(1) (g) and 21 of the Constitution.
3. That the procedure prescribed by section 314 of the
Bombay Municipal Corporation Act, 1888 for the
removal of encroachments from pavements is arbitrary and
unreasonable.
Decision of Supreme Court
The decision of the Supreme Court in this case was based on the
humanistic approach of the judges and the Apex Court stepped into
the activist role. The Hon'ble Supreme Court held that the slum
dwellers must get the alternative shelter if they are evicted from
the pavements.Although, the eviction orders were held to be valid
under article 14 and 19 of the Constitution. Infact, the right to
life was once again enlarged to engulf the right to livelihood as
being a part of liberty of an individual. The decision of the
Court also focused on the concept of the welfare state and
reliance though not expressly but impliedly was placed on the
Directive Principles of the State Policies under the Constitution.
Rationale, Reason and Jurisprudence of Olga Tellis
The decision of this case essentially falls back on the premise of
the positivism. The judgment delivered by C.J., YV.Chandrachud is
solely based on the concept of the analytical positivism of
Britain. The letter of law was considered to be paramount. The
Supreme Court focused on both the premises, that is, reformation
and superiority of the law. In Para 28, Justice Chandrachud took
the approach propounded by Hans Kelson, where he considers
constitution as a highest norm or the Grundnorm. According to
Kelson, Grundnorm is the basic norm which determines the content
and gives validity to other norms derived from it. On this basis,
Justice Chandrachud, observes in Para 28 that,
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. Its provisions are
conceived in public interest and are intended to serve public
purpose.
Furthermore, it is the theory of the "Father of the English
Jurisprudence" - Jeremy Bentham (1748-1832)
that was reiterated by the Apex Court in true sense. Bentham
talked about the reform of the substantive law by the way of
reforming the structure of law.
1. Law in the Reformative Process
This case can be said to be a decision that leads to the
reformation of the substantive law. Bentham divided the
jurisprudence into two parts, that is, expositorial (what law is)
and censorial (what law ought to be) .Olga Tellis has shifted the
focus from censorial jurisprudence to the expositorial
jurisprudence by enlarging the scope of article 21 of the
Constitution and including right to livelihood and right to
shelter as a part of right to life. Justice Chandrachud in Para 32
of his judgment states,
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 of his right to life
would be to deprive him of his means of livelihood to the point of
abrogation.
This view of the Hon'ble Court clearly indicates the follow up of
the Bentam's philosophy of reforming the law through its
structure. The law as defined by Bentham is, an assemblage of
signs, declarative of violation, conceived or adopted by the
sovereign in a state, concerning the conduct to be observed in a
certain case by a certain person or class of persons, who in the
case in question are or are supposed to be subject to his power
.Therefore, this although focuses on the aspect that law is
certain and laid down that is, positum, but at the same time this
definition is flexible enough to be cover a set of objectives so
intimately allied and to which there would be such continual
occasion to apply the same proposition . Therefore in the present
case when Justice Chandrachud states that ,"no person can live
without means of living" ,he is applying the Bentamite
jurisprudence to reform the law laid down under article 21 and at
the same time also utilizing the flexibility of his definition of
law to equate the intimately allied occasions of life, liberty and
livelihood.
2. Hedonist Utilitarianism
Olga Tellis brought the concept of Benthamite philosophy of the
Hedonist Utilitarianism. Justice Chandrachud in Para 1 states that
the petitioners form almost half the population of the city. The
fact of such a large number of pavement dwellers in question
caused the decision to fall in their favour.The principle of
utility by Bentham stated that, out of various possibilities in a
given case, one must choose that option that gives the greatest
happiness to the greatest number .
The Bombay Municipal Corporation Act, 1888 laid down the law
relating to the pavement dwellers under section 312-314. It stated
many prohibitions on the housing and depositions of various items
on the pavements by the dwellers. Justice Chandrachud while
deciding this case entirely followed the PRINCIPLE OF UTILITY as
given by Bentham and held that the end aim of the legislator
should be HAPPINESS of the people and the GENERAL UTILITY must be
the guiding principle. Apex Court by making a balance sheet
between the happiness or the utility of the slum dwellers with the
aim and object of the particular legislation came to a conclusion
that justice must be done only by giving the redressal to the poor
and needy pavement dwellers. Justice Chandarchud in Para 49 states
that,
Hearing to be given to trespassers who have encroached on
public properties? To persons who commit crime? There is no doubt
that the petitioners are using pavements and other public
properties for an unauthorised purpose. But, their intention or
object in doing so is not to "commit an offence or intimidate,
insult or annoy any person", which is the gist of the offence of
'Criminal trespass' under Section 441 of the Penal Code. They
manage to find a habitat in places which are mostly filthy or
marshy, out of sheet helplessness. It is not as if they have a
free choice to exercise as to whether to commit an encroachment
and if so, where. The encroachments committed by these persons are
involuntary acts in the sense that those acts are compelled by
inevitable circumstances and are not guided by choice. Here, as
elsewhere in the law of Torts, a balance has to be struck between
competing sets of values.....
Therefore, the Apex Court had drawn a balance sheet and analysed
the Happiness and utility of the petitioners and the respondents.
The Court relied upon the Pelican book in Para 56 and states,
Malnourished babies, wasted mothers, emaciated corpses in the
streets of Asia have definite and definable reasons for existing.
Hunger may have been the human race's constant companion, and 'the
poor may always be with us', but in the twentieth century, one
cannot take this fatalistic view of the destiny of millions of
fellow creatures. Their condition is not inevitable but is caused
by identifiable forces within the province of rational human
control.
In the above-mentioned finding by the Hon'ble Supreme Court it is
evidently clear that the reliance was placed on the "destiny of
millions of fellow creatures". It signifies the application of
the Bentham principle of utility in the outcome of the judgment of
Olga Tellis.
Bentham's
justification of his utilitarianism is founded upon four
propositions. These are as follows,
1. All agents (as agents) seek a personal good.
2. Ultimately, all self-conscious agents aim at the same goal
(irrespective of the particular context in which the particular
action is performed).
3. That same ultimate goal is always the maximization of personal
pleasure (and the avoidance of personal pain).
4. The proper role of the state is to promote the greatest
aggregate pleasure within its community.
The four commands of utility for civic society in the Bentham's
Utilitarianism, upon which the aggregate happiness depends are
security, subsistence, abundance and equality. Out of the above,
security was the most important. Subsistence, abundance and
equality, however, all depended, in Bentham's view, on the
paramount directive of security. The decision given by the Supreme
Court heavily relies on the entire four propositions given by
Bentham (above-mentioned). Justice Chandrachud in the Para 2 of
the judgment lays down the emphasis on the slum dwellers right to
life and reside in any part of the country with dignity as other
citizens of the nation. He stated that an individual can live
without security but cannot live without "subsistence" the Supreme
Court in the instant case holding that the Right to livelihood and
shelter as being an important component of the Right to Life again
establishes a nexus between subsistence and right to livelihood
once again confirming the abidance of the Benthamite principle of
utility. Moreover when the court established that if the
petitioners were evicted from their dwellings, they would be
deprived of their livelihood.
The due recognition is given to the fact that the number of the
pavement dwellers was huge and it constituted almost half of the
city's population. Therefore, the test greatest aggregate
happiness for the greatest number is also fulfilled. According to
Jullias Stone , by happiness of the community Bentham meant
simply the aggregate of individual surpluses of pleasure over
pain. The greatest happiness of the greatest number states that
the pleasure and the pains of the society are to be weighed at
same plane. In this case also the pleasure of the society was
upheld and also the pain of another section of the society (slum
dwellers) was brought down.
Then Bentham's principle of utility becomes the principle that we
are always to act in such a way as to give as many people as
possible as much as possible of whatever it is that they want. I
think that the interpretation in Olga Tellis preserves the essence
of Bentham's doctrine, and it has the advantage of making it
independent of any special psychological theory.
Conclusion
To conclude, the whole Benthamite principle applied by Justice
Chandrachud on behalf of all the brother Justices can be
summarized in one sentence stated in Para 46 of the judgment,
Human compassion (happiness) must soften the rough edges of
justice in all situations. Thus, it can be concluded the
Supreme Court adopted the Utilitarian Principle in terms of the
pleasure and pain calculus or the hedonistic calculus of Jermy
Betham.
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Authored by Sandeep Pathak and can be reached at
: pathaksandeep123@rediffmail.com
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