Livelihood and Shelter

Article 21, by contrast, is a prohibition. It asks the State to do nothing; it forbids one act, deprivation, unless that act follows procedure established by law, and as [Procedure Established by Law] sets out that procedure must be just, fair and reasonable. So the question in these cases is rarely "may the State do this at all" and almost always "what must it do first".

The pavement dwellers

Facts. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, (1985) 3 SCC 545, decided 10 July 1985 by a Bench of five. In 1981 the State of Maharashtra and the Bombay Municipal Corporation decided that all pavement and slum dwellers in the city would be evicted forcibly and deported to their places of origin, and some huts were demolished. The petitioners, pavement and slum dwellers, two journalists and civil liberties organisations, moved the Supreme Court under article 32. Eviction, they said, deprived them of their livelihood and so of their life; and section 314 of the Bombay Municipal Corporation Act 1888, which lets the Commissioner remove an encroachment "without notice", was arbitrary. The respondents answered that the petitioners had conceded in the High Court that they had no fundamental right to build on pavements, so they were estopped.

Held. First, "There can be no estoppel against the Constitution." A concession that a person does not possess or will not enforce a fundamental right creates no estoppel, because such rights are conferred not only to benefit individuals but to secure the larger interests of the community. Second, and this is the holding the chapter exists for, "The sweep of the right to life conferred by Article 21 is wide and far reaching." An equally important facet of it is the right to livelihood, "because, no person can live without the means of living, that is, the means of livelihood". Were it otherwise, "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", and that deprivation would need to follow no procedure at all. The principles 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". On the evidence these people lived where they did because their work was there, so that "to lose the pavement or the slum is to lose the job".

Why it matters. It is the first case in this module using article 21 to protect something the State was not doing to the person's body, and it settles two propositions used everywhere else: a fundamental right cannot be bargained away by concession, and the directive principles enter article 21 as interpretive material, not as commands.

What the pavement dwellers actually got

Leaving this out inverts the case. Having held that eviction would deprive them of livelihood and so of life, the Court did not stop it. Footpaths are public property dedicated to passage; "no one has the right to make use of a public property for a private purpose without the requisite authorisation"; and a dwelling on a pavement "is a case which is clearly on one side of the line showing that it is an act of trespass", though these were "involuntary acts" compelled by circumstance. Section 314 was read as merely enabling, conferring a discretion to act with or without notice, and so read was not unreasonable. The Commissioner was held justified in ordering removal.

The petitioners won the law and lost the case. What they got was procedural: the hearing the Commissioner had denied them was given by the Court itself; alternate pitches, though expressly not as a condition precedent to removal, for those censused in 1976; and no removal of slums standing twenty years or more that had been improved and developed, unless the land was needed for a public purpose. Olga Tellis therefore does not hold that pavement dwellers cannot be evicted. It holds that they cannot be evicted arbitrarily.

Shelter

Facts. M/s. Shantistar Builders v. Narayan Khimalal Totame, AIR 1990 SC 630, (1990) 1 SCC 520, decided 31 January 1990 by a Bench of three. Land held above the ceiling under the Urban Land (Ceiling and Regulation) Act 1976 was exempted under section 20 on the builder's undertaking to construct seventeen thousand tenements for the weaker sections at a controlled price. Persons claiming to belong to those sections alleged that speculators had captured the scheme and genuine applicants were passed over. The High Court dismissed their petition as infructuous but gave monitoring directions, and the builder appealed against the monitoring.

Held. "Basic needs of man have traditionally been accepted to be three", food, clothing and shelter. The right to life "would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in". For an animal shelter is bare protection of the body; for a human being it must be "a suitable accommodation which would allow him to grow in every aspect". Since "a reasonable residence is an indispensable necessity for fulfilling the Constitutional goal in the matter of development of man and should be taken as included in 'life' in Article 21, greater social control is called for", exemptions under sections 20 and 21 had to be monitored. The Court commanded the Central Government to define "weaker sections" and required a committee chaired by a judicial officer to oversee each scheme.

Why it matters. It puts shelter inside "life", with a qualification worth memorising: it is "not necessary that every citizen must be ensured of living in a well built comfortable house", and a reasonable home in India "can even be mud built thatched house". The right is to a reasonable residence, not a good one.

Facts. Chameli Singh v. State of U.P., 1995 Supp (6) SCR 827, decided on 15 December 1995. Land at Village Bairam Nagar in District Bijnore was notified under section 4(1) of the Land Acquisition Act 1894 to provide house sites for Scheduled Castes, and the inquiry under section 5A was dispensed with by invoking the urgency power in section 17(4). The owners challenged the acquisition: no urgency could justify losing the section 5A inquiry after more than three years of delay, and losing the land was losing their only source of livelihood contrary to article 21.

Held. The appeal was dismissed. On the right, "Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter", and the right to shelter "does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being". On the facts the owners lost twice. Delay did not defeat urgency, because "the delay by itself accelerates the urgency: Larger the delay, greater be the urgency". And acquisition following the Act's procedure, with compensation, solatium and interest under sections 23, 28 and 31, "would not, therefore, amount to deprivation of right to livelihood".

Why it matters. It is the fullest statement of the content of the right to shelter, and the standing correction to anyone who thinks a right in article 21 is a trump card. The Court described the right as widely as it ever has and then upheld the acquisition, because the deprivation followed a lawful procedure that paid for what it took. Article 21 controls how the State acts; it does not forbid the State to act.

Two things that look the same

The same distinction holds for shelter: neither Shantistar nor Chameli Singh gives anyone a decree for a house.

A worked example

A municipal corporation resolves to widen a road. Forty families have lived on the verge for twenty two years, and the corporation issued them identity cards. Kamla, who sells vegetables two streets away, is told on a Monday that the settlement will be cleared on the Wednesday. She petitions the High Court under article 226.

Step one, is a fundamental right engaged? Yes. On Olga Tellis, losing the settlement means losing the pitch she trades from, and loss of livelihood is deprivation of life under article 21. On Shantistar, the shelter itself is within "life".

Step two, will the corporation say she has no right to be there? It will, and on Olga Tellis it is partly correct: occupying public land without authority is trespass. That answers ownership, not article 21, which protects a trespasser from arbitrary deprivation like anyone else.

Step three, was the discretion exercised reasonably? If the statute permits removal "without notice", Olga Tellis reads it as enabling and not compelling, so "that discretion has to be exercised in a reasonable manner". Two days for twenty two years of settled occupation, with no reasons and no hearing, is not a fair procedure, and road widening planned over months supplies no urgency that would excuse one.

Step four, what relief follows? Not an injunction forever, but a hearing and consideration of alternate sites, as in Olga Tellis. If instead the land is compulsorily acquired and compensation paid, Chameli Singh answers her: that is no deprivation of livelihood at all.

What it does NOT mean

It does not mean the State must provide work or housing. Olga Tellis is explicit that the State "may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens".

It does not mean an encroacher acquires a right to the land. The pavement dwellers were held trespassers on public property in the very judgment that recognised their right to livelihood. The right is against the manner of removal, not against removal.

It does not mean the directive principles became enforceable. Articles 39(a) and 41 remain within article 37; they were used to read the word "life". A student who writes that Olga Tellis made article 41 enforceable has described a different case.

Quick revision

• Article 21 forbids deprivation of life except by procedure established by law, and after Maneka that procedure must be just, fair and reasonable.
• Article 41 is a directive principle: effective provision for work, education and public assistance, "within the limits of its economic capacity and development". Article 37 makes it unenforceable.
• Olga Tellis (1985, five judges): the right to life includes the right to livelihood; no estoppel against the Constitution.
• But Olga Tellis upheld removal: pavements are public property, dwelling on them is trespass, section 314 is valid as enabling. The petitioners got a hearing and resettlement directions.
• Shantistar (1990): food, clothing and shelter are the basic needs; a reasonable residence is within "life"; a mud built house can be enough.
• Chameli Singh (1995): the right to shelter is the infrastructure needed to live and develop, not a roof; but lawful acquisition with compensation is no deprivation of livelihood, and delay accelerates urgency rather than defeating it.
• The pattern in all three is a wide right and a narrow remedy.

Test yourself

1. State the holding in Olga Tellis on the right to livelihood, then state what the petitioners actually obtained, and explain why both halves are needed.

2. How can articles 39(a) and 41 govern the meaning of article 21 when article 37 says they are not enforceable by any court?

3. What is the content of the right to shelter on Shantistar and Chameli Singh, and what does it stop short of?

4. A statute allows an officer to remove an encroachment "without notice". Is it void under article 21? Answer using Olga Tellis on the construction of such a provision.

5. Chameli Singh gave the widest description of the right to shelter in this chapter and dismissed the appeal. Show that both are consistent.