A 37-year-old Constitution Bench judgment of the Supreme Court which held that pavement dwellers are different from trespassers. This may become a game-changer in the Jahangirpuri case.

What is the Olga Tellis judgment?

• The judgment, Olga Tellis vs. Bombay Municipal Corporation, was given in 1985 by a five-judge Bench led by then Chief Justice of India Y.V. Chandrachud (F/O Justice D.Y Chandrachud).
• It is agreed that pavement dwellers do occupy public spaces in an unauthorized manner.

Key takeaways of the Judgment

• Opportunity to depart: The court maintained they should be given a chance to be heard and a reasonable opportunity to depart before force is used to expel them.
• No use of force: The Supreme Court reasoned that eviction using unreasonable force, without giving them a chance to explain is unconstitutional.
• Right to life: Pavement dwellers, too, have a right to life and dignity. The right to life included the right to livelihood. They earn a meagre livelihood by living and working on the footpaths.
• No misuse of powers of eviction: A welfare state and its authorities should not use its powers of eviction as a means to deprive pavement dwellers of their livelihood.

What led to the judgment?

• Sometime in 1981, the State of Maharashtra and the Bombay Municipal Corporation decided that pavement and slum dwellers in Bombay city should be evicted and “deported to their respective places of origin or places outside the city of Bombay.”
• Some demolitions were carried out before the case was brought to the Bombay High Court by pavement dwellers, residents of slums across the city, NGOs and journalists.
• While they conceded that they did not have “any fundamental right to put up huts on pavements or public roads”, the case came up before the Supreme Court on larger questions of law.

What were the questions discussed before the Supreme Court?

• One of the main questions was whether eviction of a pavement dweller would amount to depriving him/her of their livelihood guaranteed under Article 21 of the Constitution.
• The Article mandates that “no person shall be deprived of his life or personal liberty EXCEPT according to procedure established by law.”
• The Constitution Bench was also asked to determine if provisions in the Bombay Municipal Corporation Act, 1888, allowing the removal of encroachments without prior notice, were arbitrary and unreasonable.
• The Supreme Court also decided to examine the question whether it was constitutionally impermissible to characterise pavement dwellers as trespassers.

What was the State government’s defence?

• The State government and the corporation countered that pavement dwellers should be estopped (estoppel is a judicial device whereby a court may prevent or “estop” a person from making assertions.
• Estoppel may prevent someone from bringing a particular claim from contending that the shacks constructed by them on the pavements cannot be demolished because of their right to livelihood.
• They cannot claim any fundamental right to encroach and put up huts on pavements or public roads over which the public has a ‘right of way.’

How did the Supreme Court rule?

• The Bench threw out the government’s argument of estoppel, saying “there can be no estoppel against the Constitution.”
• The court held that the right to life of pavement dwellers were at stake here.
• The right to livelihood was an “integral component” of the right to life. They can come to court to assert their right.
• If the right to livelihood is not treated as a part of the constitutional right to live, 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.
• Any aggrieved person can challenge the deprivation as offending the right to life.
• Removal of encroachments without prior notice was arbitrary; the court held that such powers are designed to operate as an “exception” and not the “general rule.”
• The procedure of eviction should lean in favour of procedural safeguards which follow the natural principles of justice like giving the other side an opportunity to be heard.
• Finally, the court emphatically objected to authorities treating pavement dwellers as mere trespassers.
• The encroachment committed are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice.

Way ahead

• It is not a free choice to exercise as to whether to commit an encroachment and if so, where.
• Trespassers should not be evicted by using force greater than what is reasonable and appropriate.
• He/she should be asked and given a reasonable opportunity to depart before force is used to expel him.

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