By Yash Tripathi, Nirma University
Editor’s Note: This article presents a jurisprudential analysis of the landmark judgment of the Supreme Court in the case of Olga Tellis v. Bombay Municipal Corporation.
The facts of the case are as such that the plight of people who live on pavements and slums in the city of Bombay. They have made such areas their homes which exist in the midst of filth and squalor. These are the people who made both of the ends of the day meet in ambiguity, there is little hope of elevation of status between them. They came before the Honorable Supreme Court to get back their homes from which they have been evicted by the municipal authority for the city. Such snatching up of their homes is a violation of their Article 21. The major contention from their side that they have made these places their homes, as they are near the place where they work, which in turn provide them great assistance. So, this also infringes Article 19(1)(e) as they will be in a great difficulty to reach their workplace. To live a life or to exercise the right to live they should also have right to livelihood and without this such exercise is not possible.
Thus, the act which is the Bombay Municipal Corporation Act under which such evictions have been carried out is of arbitrary in nature and fanciful.
DECISION BY THE COURT AND ITS JURISPRUDENTIAL OUTLOOK
The Apex court has taken a balanced decision in the matter. It has also upheld the validity of the above stated questionable act but this has not been done on the cast of the pavement dwellers. The right to life which is having its existence due to right to livelihood is being respected by the court in the present matter. The court has struck a proper balance between the priority of individual’s right and societal right. Which one should have a greater importance and which should be satisfied in an effective manner has been categorically being stated by the court in the judgment. It has neither neglected the importance of the impugned act nor negated the individual’s right the right for the enforcement of which the petitioner’s came before the court.
What we should see in the judgment is not that any negotiations being done by the people with the administrative authorities at the cost of their fundamental rights which are being guaranteed by the constitution are being discarded by the court but how court has respected both the rights and followed the principles of social engineering, utilitarianism, rights and many more jurisprudential aspects which are not being laid down in any codified book but are the theories being formulated by the eminent jurist who have worked all their life so that the legal system should work properly and the spirit of justice, equity and good conscience are being upheld. The above stated principles are being discussed in the present jurisprudential analysis and an attempt has been done that justice can be done. In the present analysis theories will be discussed on the basis of their applicability over the facts of the case.
Before, entering into any of the theories that are having the applicability in the case. We should first see that what has been demanded by the petitioner’s that are their fundamental right guaranteed under Article 21 which has been infringed by the act of municipal authorities. These fundamental rights are no ordinary rights they are the one’s which are being guaranteed by the constitution and cannot be taken away by ordinary legislation. These rights have their inception I the writings of Thomas Hobbes, John Locke and Rousseau who talk about the basic human rights which people have by birth. As, per the basic derivation that we can take out from these writings are that the need of such rights arise when there was state of nature and to protect people these were like shields.
Taking, a look from the Indian scenario we can see that these rights are guaranteed by the constitution and even suspension of such rights can be done but not of the right of life and personal liberty. With the passage of time the content of right have gone changes and the right of life and liberty which is put to question in the case now also includes right to livelihood establishing a wider area, which has been done by judiciary itself. Showing that not only in enforcement but also in conceptualization [i] of these rights judiciary plays an active role[ii].
The question here arises which has also been thrown light upon in the case is that whose rights should be respected the right of pavement dwellers as their right of livelihood is getting affected or the right of the people, the society at large who has the right to have the access of the places on which these pavement dwellers have encroached upon.
To protect the right of the society at large it is the contention of the authorities that in public interest[iii] these pavements should not be encroached upon as these are also the hub of many diseases and other socially unacceptable activities. The window which such a contention is opening is of the theory of Utilitarianism, in the words of Chandrachud, C J which have been stated has been stated in the judgment that the rough edges[iv] of justice should get soften by human compassion and these pavement dwellers should not be deprived of their right.
The question which arises is that what about the rights of the society at large the theory of Utilitarianism states that the ‘greatest happiness principle’ should be followed. It calls for the maximization of aggregate happiness[v] the sum of happiness that we are getting. The political morality which arises in the case that the rights of pavement dwellers are getting infringed by the authorities as they are being evicted from their homes. In the words of Bentham utility is the principle of having good consequence[vi] which has been totally justified by the court in it’s judgment that the people will not be evicted until and unless other adequate means are being provided to them. Such equalization is being done so that every sect is happy by the judgment.
On the other hand, Mill rejects the hedonistic utilitarianism principle stated by Bentham. He is different from the latter one is that his central idea is of distinction between higher and lower quality pleasures[vii]. He determines the value of pleasure by ranking of the same in preference not by its intensity or duration. Which in the present case is not applicable as it has been laid down that till October 31, 1985[viii] the pavement dwellers will not be removed limiting the pleasure to a certain duration.
Thus, it is evident that the utilitarianism principle of Bentham is having the applicability over the case, as the greater good is being kept in focus t-and the good to all sects which are getting affected is being done. In the present matter there is a tussle of social interest and individual interest, while the social interest is contested on the grounds of health, public rights, and government policies. The individual interest is being contested that there is an infringement of fundamental right of Article 21 as right to life is dependent on right to livelihood.[ix]
We have to look that how these interest are important in individual as well as social sphere. While the basic understanding that we have that rights are legally enforceable interests. There is always an overlapping of society’s interests over individual interest but the question that arises that how far the law which is there for protection of society’s interests should go and mold the degree of an individual’s freedom.[x] The impugned act which is the Bombay Municipal Corporation, Act which has been put to question, it is being pleaded before the court that it encroaches upon the right of the pavement dwellers but on the other hand it is there for the greater good of the society. Court also agreed on the same view and stand by the side of the Act and didn’t declared it as an arbitrary piece of legislation.
As, the theories have evolved by the passage of time to see that whether interests exist some of the points should be distinguished like what is the ‘purpose of law’ which is there to protect the interest, there is a real demand for such interests and are being denied, which of the interest should ideally the legal system should protect, these are the aspects which also have been covered in the judgment delivered by the apex court. There is a call to define the purpose of law, the priority of interest and their ranking in that priority and also the demand which one to be full filled the society or the individual one.
Here, what we should also jurisprudentially analyze is the theory of rights as the parties involved in the case are claiming the infringement of their respective rights. Salmond defines a legal right as an interest recognized and protected by rule of justice. A correlation between rights and duties is also drawn as when there is an existence of right there is also someone’s duty to full fill those rights. Here, in the case it is the state’s duty to provide adequate homes and shelter to the people so that they are not compelled due to their existing poverty condition to live on such public places like pavements. There are numerous public welfare schemes[xi] run by the state but how much they are getting succeeded is not being established in the case from the authority’s side. The condition is this that there is a system of satellite city as in the present case is the city of Bombay people dwell from nearby places and squalor[xii] conditions evolve in the city. Hence, failing to perform the duty gives rise to the window to claim for the rights.
Here, Hohfeld’s jurisprudential theory plays a very critical role his idea is distributed over the parameters of claim, duty, privilege, no claim, immunity, disability, power and liability. Thus relying on the jural correlatives[xiii] and opposite of these legal concepts. Thus a clear picture can be drawn by the following table-
|Form of Right||Correlative||Opposite|
|Privilege/ Liberty||No Right||Duty|
Hence, the above table tells us that how the Hohfeld’s theory is having the applicability over the present judgment while the state exercised its power to evict the people from their settlements but such a power got negated as the state failed to perform its duty to provide with the basic necessity and despite this was taking away their right to livelihood.
While, the above rights and claim jurisprudential applicability is there in the judgment, the concept of social engineering[xiv] is also there. It is being propounded by eminent jurist Roscoe Pound. He devised that any law should have the applicability, interpretation and framing while taking into account the social fact. Pound saw legal history as ‘the record of a continually wider recognizing and satisfying of human worth or claims or desires through social control’. Here, the question that arises is that why only sociological school has been taken into account why other schools are not that much sufficient for the application. It is because that the historical approached by using historical method and to reach the same position philosophical school also showed no distinction bringing us to the conclusion that they are no more fundamental[xv] for the social problems.
These sociological theories were being developed by philosophers who were belonging to Socio- Philosophical School presents three types “the so-called Neo-Kantians, who, on the whole, are philosophical and sociological in tendency, the teleologists or social utilitarian’s, whose tendency is analytical and sociological, and the Neo-Hegelians, who may be described as historical and sociological in tendency”.[xvi] Pound devised a study of social utilitarianism v. individual utilitarianism. “Men tend to do what they think they are doing. Hence professional and judicial ideals of the social and legal order are a decisive factor in legal development”.[xvii]
A comparison is also being drawn between public policy and private rights and they should be treated on the same plane[xviii]. It was said that public policy was “a very unruly horse, and when once you get astride it you never know where it will carry you”.[xix] Hence, it’s all about prioritizing that which one should be given the preference. The social security should be achieved by proper implementation of the legislation which doesn’t encroaches upon the individual rights. Thus, taking into account the principles of sociological school the applicability of the same is justified over the judgment as the impugned act the Bombay Municipal Corporation act is for societal benefit but it should also be seen that it is not being implemented in an arbitrary manner, which has also been stated in the judgment.
Reaching, on the concluding part it can only be said that all the above stated jurisprudential principles are having the applicability over the judgment as a bridge is drawn between the principles and the facts and circumstances of the case. The utilitarianism happiness as well as the tussle between the social and private rights has been clearly justified having the umbrella of social engineering.
Edited by Hariharan Kumar
[i] N K Jayakumar, Lectures in Jurisprudence 191 (2nd ed., 2014).
[iii] Ollga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
[v] Justice Spring, 2006-2, available at: http://www.myoops.org/course_material/mit/NR/rdonlyres/3D83C642-7566-4625-8CAC-3934BABC3217/0/bentham2006.pdf.
[vii] Justice Spring, 2006-2, available at: http://www.myoops.org/course_material/mit/NR/rdonlyres/332DBFA2-8808-4DA7-B09B-E5F12FF41C6C/0/mill_utilitarian.pdf.
[viii] Supra iii at iii.
[ix] Supra iii at iii.
[x] G. W. Paton, A Text Book of Jurisprudence 124 (4th ed., 2007).
[xi] Supra iii at iii.
[xii] Supra iii at iii.
[xiii] Supra i at ii.
[xv] Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harvard Law Review, 593-619 (1911).
[xvii] James A. Gardner, The Sociological Jurisprudence of Roscoe Pound (Part I), 7 Vill. L. Rev. 1 (1961). available at: http://digitalcommons.law.villanova.edu/vlr/vol7/iss1/1 .
[xviii] Roscoe Pound, A Survey of Social Interests, 57 Harvard Law Review, 1-40 (1943).
[xix] Richardson v. Mellish, 130 Eng. Rep. 294.