Page | 1

DR. RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW (U.P.)
Session- 2013- 2014
Subject: Constitutional Law- I

Final Project
On
RIGHT TO LIVELIHOOD- WITH SPECIFIC REFERENCE
TO OLGA TELLIS v. BOMBAY MUNICIPAL
CORPORATION CASE [AIR 1986 SC 180]

UNDER THE SUPERVISION OF: SUBMITTED BY:
Ms. Aparna Singh Harshwardhan Singh Udawat
Assistant Professor of Law Enrolment No. - 120101051
Page | 2

DR. RMLNLU, Section- A, Roll No. 55
LUCKNOW Semester-III, Batch- 2012-2017.
ACKNOWLEDGMENT:
Firstly, I would like to thank respected Professor C. M. Jariwala
and Ms. Aparna Singh, for giving me such a golden opportunity to
show my skills and capability through this project. This project is the
result of the extensive ultrapure study, hard work and labour, put into to
make it worth reading. It is my pleasure to be indebted to various
people, who directly or indirectly contributed in the development of this
work and who influenced my thinking, behaviour, and acts during the
course of study. Lastly, I would like to thank the almighty and my
parents for their moral support and my friends with whom I
shared my day-to-day experience and received lots of suggestions
that improved my quality of work.


Thanking You..

Page | 3

[Harshwardhan Singh Udawat]
TABLE OF CONTENTS:
I. INTRODUCTION. 4
II. EXPANDING HORIZONS OF ARTICLE-21. 5
III. RIGHT TO LIVELIHOOD... 6
OLGA TELLIS CASE-
FACTS
ISSUES
ARGUMENTS
JUDGMENT
HELD
RATIONALE, REASON AND JURISPRUDENCE

IV. CONCLUSION... 14
V. BIBLIOGRAPHY... 15





Page | 4


INTRODUCTION:
In India, the Parliament is the Constitutional Sovereign. However, some of the powers of the
sovereign are also present with the Judiciary. The parliament makes the law. But what is to be
understood is that it is the judiciary which interprets the law. Therefore in a nutshell It is the
judiciary which has the last laugh in such matters.
Article- 21 has a long journey from A.K. Gopalan Case-via- Maneka Gandhi Case to the present
Situation. Article- 21s ambit has now been extended and stretched to procure those fancy but
Fundamental Rights which have now become a part and parcel of our life with the ever widening
scope of Human Rights. These rights have been bestowed to the people by the lenient
interpretation of Article- 21 by the Apex Court in number of cases and the pioneer case was that
of Maneka Gandhi v. Union of India.
1
In this case Justice P. N. Bhagwati termed Article- 21 as
Pandoras Box. The Apex Court in various cases have relied upon the interpretation of the term
life and liberty as was given by Field, J. in Munn v. Illionois
2
which formed the basis of
granting these new fundamental rights and liberal interpretations.
To begin with, the Supreme Court took the view that the Right to Life in Article- 21 would
not include livelihood. In Re: Sant Ram case,
3
which arose before Maneka Gandhi Case, the
Supreme Court ruled that the Right to Livelihood would not fall within the expression
Right to Life in Article- 21. The Court said curtly: The argument that the word life in
Article 21 of the Constitution includes livelihood has only to be rejected. The question of
livelihood has not in terms been dealt with by Article 21. The Right to Livelihood would be
included in the freedoms enumerated in Article- 19, or even in Article- 16, in a limited sense.
But then, the view of the Court underwent a change. In Olga Tellis v. Bombay Municipal
corporation with the defining of the world Life in Article- 21 in a broad and expensive
manner, the Court came to hold that the Right to Life guaranteed by Article- 21 included
the Right to Livelihood.


1
AIR 1978 SC 597
2
(1877) 94 US 113
3
AIR 1960 SC 932
Page | 5


EXPANDING HORIZONS OF ARTICLE-21:
ARTICLE-21: Protection of Life and Personal Liberty- No person shall be deprived of
his life or personal liberty except according to procedure established by law.
Life and personal liberty- Article- 21 though couched in negative language, confers on
every person the fundamental right to life and personal liberty which has become an
inexhaustible source of many other rights.
4

The right is available to citizens as well as non-citizens. In the famous case A. K. Gopalan v.
State of Madras,
5
personal liberty was held to mean only liberty relating to or concerning
the person or body of the individual. Also, it covered protection only against arbitrary
executive action. But, later on, its ambit was widened to say that the procedure established
by law had to be just fair and reasonable. It must include protection against legislation action
also and to cover within itself all the varieties of rights which go to make up the personal
liberty of man, other than those provided in Article- 19 (1). In Maneka Gandhi Case, the
Supreme Court in fact over ruled the Gopalans Case expressing the view that, the attempt
of the Court should be to expand the reach and ambit of the Fundamental Rights rather than
to attenuate their meaning and context by a process of judicial construction.. It held that the
right to live in not merely confined to physical existence but it included within its ambit the
right to live with human dignity.






4
Maneka Gandhi v. Union of India, AIR 1978 SC 597
5
AIR 1950 SC 27
Page | 6


RIGHT TO LIVELIHOOD:
OLGA TELLIS CASE:
FACTS-
On July, 13, 1981, the then Chief Minister of Maharashtra, Sri A.R. Antulay, made an
announcement that all pavement 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.
The Chief Minister directed the Commissioner of Police to provide the necessary assistance
to the Bombay Municipal Corporation (BMC), to demolish the pavement dwellings and
deport the pavement dwellers. Accordingly, the Corporation removed the ramshackle shelters
on the pavements with the aid of police. The pavement dwellers flew to less conspicuous
pavements in by- lanes and when the officials are gone, they returned to their old habitats.
Their main attachment to those places was the nearness thereof to their place of work.
Some journalists and pavement dwellers challenged, by filing writ petition, the aforesaid
decision to demolish the huts, on the ground that it is violative of Article- 19 and Article- 21
of the Constitution. The petitioners seek for a declaration that Sections- 312, 313 and 314 of
the Bombay Municipal Corporation Act, 1888 are invalid as violative of Articles- 14, 19 and
21 of the Constitution inasmuch as they empowers the Municipal Commissioner to remove,
without notice, any object or structure or fixture which is set up in or upon any street. The
reliefs asked for in the writ petitions are that the respondents should be directed to withdraw
the decision to demolish the pavement dwellings and the slum hutments and, where they are
already demolished, to restore possession of the sites to the former occupants.
ISSUES-
The Main Issues which were considered by the court in this case are as follows-
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 Right to Life
under Article- 21 of the Constitution.
Page | 7

That the impugned action of the State Government and the Bombay Municipal
Corporation is violative of the provisions contained in Articles- 19 (1) (3), 19 (1) (g)
and 21 of the Constitution.
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.
ARGUMENTS-
The petitioners urged that it is constitutionally impermissible to characterise the pavement
dwellers as trespassers because, their occupation of pavements arise from economic
compulsions. The instant situation is one of crises, which compels the use of public property
for the purpose of survival and sustenance.
The petitioners contended that the pavement dwellers could not be evicted by the BMC
without being "offered alternative accommodation." BMC's demolition of the pavement
dwellers hutments violated Article- 21 of the Constitution which "guarantees that no person
shall be deprived of his life except according to procedure established by law" and Article-
19, which guarantees the "right to reside and settle in any part of the country." Additionally,
the petitioners asked the Court to declare those provisions 312, 313 and 314 of the Bombay
Municipal Corporation Act, which provided for the removal, as invalid and violative of
Articles- 14, 19 and 21.
The petitioners contended that the BMC's demolition and deportation proceedings were
unreasonable and unfair, and therefore unconstitutional because the hutments did not pose a
threat to public health and safety, they had lived in their hutments for "generations," and that
they "make a significant contribution to the economic life of the city." In sum, the petitioners
contended that the BMC's action's violated the pavement dwellers right to live and subsist,
but not the right to live on the pavement necessarily.
In response, the Government contended that these provisions of the BMC Act were not
unconstitutional, but rather were enacted for the public interest. No person has any legal right
to encroach upon or to construct any structure on a footpath, public streets or any place over
which the public has a right of way. Numerous hazards of health and safety arise if action is
not taken to remove such encroachments. Since, no civic amenities can be provided on the
pavements, the pavement dwellers use pavements or adjoining streets for easing themselves.
Page | 8

Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-
snatching, illicit distillation of liquor and prostitution. It is therefore in public interest that
public places like pavements and paths are not encroached upon.
The Government then provided examples of various Government programs and policies
designed to combat the huge population influx into the city, and associated poverty and
urbanization, concluding that "the problem of poverty has to be tackled by changing the
structure of the society in which there will be a more equitable distribution of income and
greater generation of wealth."
JUDGMENT-
The Court specifically rejected the BMC's argument that the pavement dwellers were
estopped from arguing that living on the pavement constitutes a fundamental right: "No
individual can barter away the freedom conferred upon him by the Constitution. A concession
made by him in a proceeding, whether under a mistake of law or otherwise, that he does not
possess or will not enforce any particular fundamental right, cannot create an estoppel against
him in that or any subsequent proceeding.
The sweep of the right to life conferred by Article- 21 is wide and far reaching. It does not
merely that life cannot be distinguished or taken away as, for example, by the imposition and
execution of the death sentence, except according to procedure established by law. That is but
one aspect of the right to life. 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 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 abrogation. Such
deprivation would not make life impossible to live. And yet, such deprivation would not have
to be in accordance with the procedure established by law, if the right to livelihood is not
regarded as a part of the right to life. That, which alone makes it possible to live, leave aside
what makes life liveable, must be deemed to be an integral component of the right to life.
The rural people migrate to big cities because they have means of livelihood in the villages.
The motive force which propels their desertion of their hearts and homes in the village is the
struggle for survival. So unimpeachable is the evidence of the nexus between life and the
means of livelihood. They have to eat to live. Only a handful can afford the luxury of living
to eat.
Page | 9

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
principle, 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 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. The State may not, by
affirmative action, be compellable to provide adequate means of livelihood or work to the
citizens. But, any person, who is deprived of his right to livelihood except according to just
and fair procedure established by law, can challenge the deprivation as offending the right to
life conferred by Article- 21.
One of the main reasons of the emergence and growth of squatter- settlements in big
Metropolitan cities like Bombay is the availability of job opportunities which are lacking in
the rural sector. The undisputed fact that even after eviction, the squatters return to the cities
affords proof of that position. The planning Commissions publication, The report of the
Expert Group of Programmes for the Alleviation of Poverty (1982) shows that half of the
population in India lives below the poverty line, a large part of which lives in villages. The
landless labours, which constitute the bulk of the village population, are deeply imbedded in
the mire to poverty. It is due to these economic pressures that the rural population is forced to
migrate to urban areas in search of employments. The affluent and the not so affluent are
alike in search of domestic servants. Industrial and Business Houses found a job, even if it
means washing the posts and pans, the migrant sticks to the big city. If driven out, he returns
in quest of another job. The cost of public sector and private sector housing is beyond his
modest means. Added to these factors is the stark reality of growing insecurity in villages on
account of the tyranny of parochialism and casteism.
The 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. Thus,
Page | 10

eviction of the petitioners will lead to deprivation of their livelihood and consequently to the
deprivation of life.
But the Constitution does not put an absolute embargo on the deprivation of life or personal
liberty. By Article- 21, such deprivation has to be according to procedure established by law.
An action taken by a public authority which is invested with statutory power has, therefore, to
be tested by the application of two standards: The action must be within the scope of the
authority conferred by law and secondly, it must be reasonable. If any action, within the
scope of the authority conferred by law is found to be unreasonable, it must mean that the
procedure established by law under which that action is taken is itself unreasonable. The
substance of the law cannot be divorced from the procedure which it prescribes for; how
reasonable the law is depends upon how fair is the procedure prescribed by it.
The procedure prescribed by Section- 314 read with Sections- 312 and 313 of the Bombay
Municipal Corporation Act, insofar as it removes the Municipal Commissioner to remove
without notice, any object or structure or fixing which is set up in or upon any street, cannot
be regarded as unreasonable, unfair or unjust. Footpaths or pavements are public properties
which are intended to serve the convenience of general public. They are not laid for private
use and indeed, their use for a private purpose frustrates the very object for which they are
carved out from portions of public streets. The main reason for laying out pavements is to
ensure that the pedestrians are able to go about their daily affairs with a reasonable measure
of safety and security. That facility, which has matured into a right of the pedestrians, cannot
be set at naught by allowing encroachments to be made on the pavements.
Section- 314 is in the nature of an enabling provision and not of a compulsive character.
Section- 314 confers on the commissioner the discretion to cause an encroachment to be
removed with or without notice. The discretion has to be exercised in a reasonable manner so
as to comply with the constitutional mandate that the procedure accompanying the
performance of a public act must be fair and reasonable.
HELD-
Right to Life guaranteed under Article- 21 of the Constitution includes the Right to
Livelihood.
Sections- 312, 313 and 314 of the Bombay Municipal Corporation Act, 1888 are not
unconstitutional.
Page | 11

RATIONALE, REASON AND JURISPRUDENCE-
The decision of this case essentially falls back on the premise of the positivism. The
judgment delivered by C.J., Y. V. 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.
They have to eat to live: Only a handful can afford the luxury of living to eat. That they can
do, namely, eat, only if they have the means of livelihood. That the right to work is the most
precious liberty because, it sustains and enables a man to live and the right to life is a
precious freedom. Life, as observed by Field, J. means, Something more is meant than
mere animal existence. The inhibition against its deprivation extends to all those limbs and
faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body
by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any
other of the body through which the soul communicates with the outer world.
6

Hans Kelsons Theory of Grundnorm-
In Para 28 of the judgment, Justice Chandrachud took the approach propounded by Hans
Kelson,
7
where he considers constitution as a highest norm or the Grundnorm (Germen
Word). According to Hans Kelson, Grundnorm is the basic norm which determines the
content and gives validity to other norms derived from it.
8
On this basis, Justice
Chandrachud, observes in Para 28 of the judgment 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.
Jeremy Benthams Theory of Law in Reformative Process-
Furthermore, it is the theory of the Father of the English Jurisprudence - Jeremy
Bentham
9
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.

6
Munn v. Illinois (1877) 94 U.S. 113
7
Hans Kelson (1881-1973) Austrian Jurist and Philosopher of Law. He is known for the most rigorous
development of a Positivist theory of law.
8
http://en.wikipedia.org/wiki/Basic_norm accessed on 30/09/2013
9
Jeremy Bentham (1748-1832) was a British philosopher, jurist, and social reformer. He is regarded as the
founder of modern utilitarianism.
Page | 12

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). This case 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 Court clearly indicates the follow
up of the Bentham'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,
positivism, 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 Benthamite 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.
Jeremy Benthams Theory Utilitarianism-
10

This case brought the concept of Benthamite philosophy of the Utilitarianism. Justice
Chandrachud in Para 1 of the judgment 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 Jeremy 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, 313 and 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

10
http://www.utilitarianism.com/jeremy-bentham/greatest-happiness.pdf accessed on 05/10/2013
Page | 13

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 and 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 Chandrachud in Para
49 of the judgment 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. It signifies the
application of the Bentham principle of utility in the outcome of the judgment of this case.






Page | 14

CONCLUSION:
The judgement of the Supreme Court in this case is greatly influenced by the thoughts of
Humanity. The judgement is very much appreciable. This judgement is in fact a reflection of
the principles laid down by the great British thinker Jeremy Bentham. Benthams Principle
of Utility incorporates the concept that the true aim of a legislature should be the greatest
happiness of the greatest number. It is to be noted that the slum dwellers and pavement
dwellers constituted almost half of the population of the city of Bombay. It would not be
unwise to say that the huge population of the slum and pavement dwellers has compelled the
court to pen down in their favour despite of the existence of specific law for the eviction of
such slum and pavement dwellers.
A Right without a Remedy-
Even with these findings, the Court sided with the Bombay Municipal Corporation, offering
little by way of relief to the petitioners. First, the court ordered that the pavement dwellers
could not be evicted until one month after the monsoon season. Second, the court directed
that the Government should give the highest priority to resettling misplaced pavement
dwellers "by allotting them such land as it finds to be conveniently available." Thus, the
Court stopped short of ordering any definitive government action in alleviating the problem
of the homeless in Mumbai, with the following statement beseeching the Government to find
solutions to the problems leaving a hollow ring. A most interesting fact is that more than
twenty eight years after the Supreme Court judgment in 1985 was passed, due to the strong
activism and pressure from the NGO's and the pavement dwellers themselves, most of them
have still not been evicted by the Bombay Municipal Corporation!



Page | 15

BIBLIOGRAPHY:
Jain, M. P. Indian Constitutional Law, 6
th
ed. Lexis Nexis: Nagpur, 2010.
Shukla, V. N. Constitution of India, 11
th
ed. Eastern Book Company: Lucknow, 2008.
Basu, D. D. Commentary on the Constitution of India, 8th ed. Vol. 3. Lexis Nexis: Nagpur
Seervai, H. M. Constitutional Law of India: A Critical Commentary
Kashyap, Subhash C. Our Constitution, 5
th
ed. National Book Trust, 2011.