Urbanisation and the Pavement Dweller

Held, on the outcome. The pavement and slum dwellers were nonetheless to be removed, the Court holding that no one has a right to encroach on a footpath or a public place; but it directed that the dwellings not be removed until a stated date after the monsoon, that slums existing for twenty years or more not be removed unless the land was required for a public purpose and then only with alternative sites, and that pavement dwellers CENSUSED in 1976 be given alternative pitches.

Why both halves matter. Olga Tellis is cited constantly for the right to livelihood and almost never for the fact that it did not save the petitioners. A student who states only the first half has not read the case, and the second half is the honest lesson about what a declared right is worth without a place to put the people.

And its procedural legacy. The requirement that removal be preceded by notice and a hearing unless there is an emergency is the rule applied in every eviction case since.

Chameli Singh

Facts. Chameli Singh v. State of Uttar Pradesh, (1996) 2 SCC 549, decided 15 December 1995 by Ramaswamy J with Hansaria and Majmudar JJ. Land was acquired to provide HOUSE SITES to members of the Scheduled Castes and other landless poor, and the urgency provision of the Land Acquisition Act 1894 was used, dispensing with the section 5A inquiry. The landholders challenged the acquisition.

Held. The acquisition was upheld. The RIGHT TO SHELTER is a component of the right to life under article 21 and of the right to residence and settlement under article 19(1)(e). Shelter for a human being is not a mere protection of life and limb but the facility to grow physically, mentally, intellectually and spiritually, and it requires adequate living space, a safe and decent structure, clean surroundings, sufficient light, pure air and water, sanitation and other civic amenities. Reading articles 21 and 19(1)(e) with the Preamble and with articles 39(b) and 46, and with India's obligations under the International Covenant on Economic, Social and Cultural Rights, the Court held that providing house sites to the weaker sections is a public purpose of the highest order.

Why it matters, and note the direction. The right to shelter here operated FOR an acquisition and against the landholder. In Olga Tellis article 21 was invoked by the person being removed; in Chameli Singh it was invoked to justify taking land from an owner in order to house somebody else. The same article, opposite parties, and both correct.

The procedure an eviction requires

Notice and hearing. Olga Tellis: a power to remove without notice must ordinarily be exercised after notice and an opportunity to be heard, unless there is an emergency.

A public purpose for the land. Olga Tellis directed that long-standing slums not be removed unless the land was required for a public purpose.

Alternative accommodation where the direction requires it. The Court did not hold that alternative accommodation is a precondition of every eviction; it directed it for the censused pavement dwellers and for the removal of long-standing slums. Later decisions of the High Courts and the Supreme Court have gone further in particular schemes, and the position varies with the statute and the policy under which the eviction is made. State the Olga Tellis directions accurately and do not generalise them into a rule.

Rehabilitation under a statute. Where the eviction follows an ACQUISITION, the Act of 2013 provides rehabilitation and resettlement as an entitlement, which is the statutory answer to the problem Olga Tellis met without one.

And the practical point. An eviction that provides no destination produces the same settlement somewhere else, which is the criticism that runs through the whole subject.

Governing the city: Part IXA

Article 243P, definitions. Committee, district, metropolitan area, municipal area, municipality, panchayat, population and Wards Committee.

Article 243Q, constitution of Municipalities. A NAGAR PANCHAYAT for an area in transition from rural to urban; a MUNICIPAL COUNCIL for a smaller urban area; and a MUNICIPAL CORPORATION for a larger urban area; with a proviso permitting the Governor, having regard to the size of the area, the density of population, the revenue generated, the percentage of employment in non-agricultural activities and other factors, to specify an industrial establishment as an industrial township for which a municipality need not be constituted.

Articles 243R and 243S. Composition, with all seats filled by direct election from territorial constituencies called wards, and State legislation on the representation of persons with special knowledge, members of Parliament and of the legislature, and the chairpersons of committees; and WARDS COMMITTEES in a municipality with a population of three lakhs or more.

Article 243T, reservation. Seats reserved for the Scheduled Castes and Scheduled Tribes in proportion to their population, with not less than one third of those for WOMEN of those communities; not less than ONE THIRD of the total number of seats for women, allotted by rotation; State legislation for the reservation of seats or of offices of chairperson for the backward classes; and reservation of the offices of chairperson as the State Legislature provides.

Articles 243U to 243W. A term of FIVE YEARS, with elections before its expiry or within six months of dissolution; disqualifications; and the powers, authority and responsibilities the State Legislature may confer, including the preparation of plans for economic development and social justice and the performance of the functions and implementation of schemes in relation to the matters in the TWELFTH SCHEDULE.

Article 243V, disqualifications. A person is disqualified for being chosen as, and for being, a member of a Municipality if he is disqualified under the law governing elections to the State Legislature, with a PROVISO that nobody is disqualified for being under twenty-five if he has attained TWENTY-ONE, or if he is disqualified by a law of the State Legislature; and a question whether a member has become subject to a disqualification is referred to such authority as the State Legislature provides.

Articles 243X to 243Z. The power to impose taxes and the Municipal Fund; the FINANCE COMMISSION constituted under article 243I, which reviews the financial position of municipalities and recommends the distribution of taxes and the grants-in-aid; and the audit of accounts.

Article 243Y, the Finance Commission. The Finance Commission constituted under ARTICLE 243I, which is the panchayat Finance Commission, SHALL ALSO review the financial position of the Municipalities and recommend to the Governor the principles governing the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State and the allocation of their shares among Municipalities at all levels. One Commission for both Parts, which is why the rural and urban devolution questions are decided together.

Article 243ZB, Union territories, applying the Part with the Administrator appointed under article 239 read for the Governor and the Legislative Assembly of the Union territory for the State Legislature, subject to any exceptions and modifications the President directs by public notification.

Article 243ZC, the areas left out. The Part does not apply to the SCHEDULED AREAS and the tribal areas under article 244, and does not affect the functions and powers of the DARJEELING GORKHA HILL COUNCIL; and Parliament may by law extend the Part to those areas with exceptions and modifications, such a law not being deemed an amendment of the Constitution. That is the municipal counterpart of article 243M, under which PESA was enacted for the panchayats.

Article 243ZF, the transition. Any provision of a State law about municipalities in force immediately before the Seventy-fourth Amendment which is inconsistent with the Part continues until amended or repealed or until ONE YEAR from the commencement, whichever is EARLIER; and every existing Municipality continues till its term expires unless sooner dissolved by a resolution of the State Legislative Assembly, or of each House where there is a Council.

Articles 243ZA to 243ZG. The superintendence, direction and control of elections in the State Election Commission; the application of the Part to Union Territories; the exemption of Scheduled Areas and tribal areas, subject to Parliament's power to extend it; the COMMITTEE FOR DISTRICT PLANNING under article 243ZD and the METROPOLITAN PLANNING COMMITTEE under article 243ZE for a metropolitan area of ten lakhs or more; the continuance of existing laws for one year; and the BAR ON INTERFERENCE BY COURTS in electoral matters, including the delimitation of constituencies.

The Twelfth Schedule, eighteen matters. Urban planning including town planning; regulation of land use and construction; planning for economic and social development; roads and bridges; water supply; public health, sanitation, conservancy and solid waste management; fire services; urban forestry and ecology; safeguarding the interests of the weaker sections including the handicapped and mentally retarded; SLUM IMPROVEMENT AND UPGRADATION; URBAN POVERTY ALLEVIATION; provision of urban amenities such as parks and playgrounds; promotion of cultural, educational and aesthetic aspects; burials and cremations; cattle pounds and prevention of cruelty to animals; vital statistics including registration of births and deaths; public amenities including street lighting, parking and public conveniences; and regulation of slaughter houses and tanneries.

Note entries 10 and 11. Slum improvement and upgradation, and urban poverty alleviation, are municipal FUNCTIONS under the Twelfth Schedule, which is the constitutional answer to the pavement dweller and which depends entirely on whether the State Legislature has actually devolved them under article 243W.

The criticisms

Devolution is optional. Article 243W says the Legislature of a State MAY confer the powers and responsibilities, and the Twelfth Schedule is a list of what may be devolved rather than what is. Municipal functions therefore differ enormously between States.

Finance. A municipality's own revenue is small relative to its functions, the Finance Commission's recommendations are recommendations, and the parastatal bodies that run water, transport and development are outside the elected municipality altogether.

The metropolitan planning committee. Article 243ZE requires one for every metropolitan area of ten lakhs or more, and in several metropolitan areas it has not been constituted or does not function.

And the person the chapter is about. The pavement dweller is not a voter in the ward where he lives if his name is on a roll elsewhere; he is on land he does not hold; and the function that concerns him, slum improvement, is the one most often not devolved.

A worked example

A municipal corporation resolves to clear a pavement settlement of two hundred families that has stood for eighteen years, to widen a road. The statute permits removal without notice.

Can the families rely on article 21? Yes, on both branches. Olga Tellis: the right to livelihood is an integral facet of article 21, and they live where they earn. Chameli Singh: the right to shelter is part of article 21 and article 19(1)(e).

Does that stop the eviction? No. Olga Tellis itself held that no one has a right to encroach on a footpath, and upheld the removal.

What does it require? A just, fair and reasonable procedure. On Olga Tellis, notice and an opportunity to be heard, unless there is a genuine emergency; that the land be required for a public purpose, which road widening is; and, on the directions in that case, alternative sites for those covered by them.

What if the land were being acquired for a private project? The Act of 2013 would apply, with a social impact assessment, the consent requirement, a wider definition of an affected family that includes those dependent on the land, and rehabilitation and resettlement as an ENTITLEMENT rather than a direction.

Whose function is the resettlement? Entries 10 and 11 of the Twelfth Schedule, slum improvement and upgradation and urban poverty alleviation, if the State has devolved them under article 243W; otherwise the State's own department.

And the honest answer. The families will move. What the law decides is whether they are told first, whether they are heard, and whether there is anywhere for them to go, and only the last of those changes anything for them.

What this does NOT mean

It does not mean Olga Tellis stopped the eviction. It did not, and an answer that says so is wrong.

It does not mean there is a general right to alternative accommodation. Olga Tellis gave directions in that case; the position under later decisions depends on the statute and the scheme.

It does not mean municipalities have the functions in the Twelfth Schedule. Article 243W leaves the devolution to the State Legislature.

And it does not mean urbanisation is a problem to be reversed. It is the form industrialisation takes, and Goal 11 asks for sustainable cities rather than for fewer of them.

Quick revision

OLGA TELLIS, 10 July 1985, five judges: the RIGHT TO LIVELIHOOD is an integral facet of article 21, since no person can live without the means of living, supported by articles 39(a) and 41, so deprivation requires a just, fair and reasonable procedure; section 314 of the Bombay Municipal Corporation Act, permitting removal without notice, is a POWER and not a duty, so notice and a hearing must ordinarily precede removal; but no one has a right to encroach on a footpath, and the removal was UPHELD, with directions to defer until after the monsoon, to spare slums of twenty years or more unless the land was needed for a public purpose and then only with alternative sites, and to give alternative pitches to pavement dwellers censused in 1976.

CHAMELI SINGH, 15 December 1995: the RIGHT TO SHELTER is part of articles 21 and 19(1)(e); shelter is not mere protection of life and limb but the facility to grow physically, mentally, intellectually and spiritually, requiring adequate space, a decent structure, clean surroundings, light, air, water and sanitation; and providing house sites to the weaker sections is a public purpose of the highest order, so the acquisition and the use of the urgency provision were upheld. Note the direction: article 21 operated FOR the acquisition.

Part IXA, 74th Amendment 1992: article 243Q, NAGAR PANCHAYAT, MUNICIPAL COUNCIL and MUNICIPAL CORPORATION, with the industrial township proviso; 243R and 243S, direct election from wards and WARDS COMMITTEES above three lakhs; 243T, reservation for the Scheduled Castes and Tribes in proportion, one third of those for women, and NOT LESS THAN ONE THIRD of all seats for women by rotation; 243U, a five-year term; 243W, powers the State Legislature MAY confer, including the TWELFTH SCHEDULE's eighteen matters; 243V, disqualifications, with TWENTY-ONE as the age; 243X and 243Y, taxation and the Finance Commission constituted under article 243I reviewing the municipal position too; 243ZB, Union territories; 243ZC, non-application to Scheduled and tribal areas and the saving for the Darjeeling Gorkha Hill Council, with Parliament's power to extend; 243ZF, existing laws continuing for ONE YEAR and existing Municipalities till their term expires; 243ZD and 243ZE, the District Planning Committee and the Metropolitan Planning Committee for areas of ten lakhs or more; and 243ZG, the bar on interference by courts in electoral matters. Twelfth Schedule entries 10 and 11: SLUM IMPROVEMENT AND UPGRADATION and URBAN POVERTY ALLEVIATION.

Test yourself

1. State both halves of Olga Tellis. That the right to livelihood is an integral facet of the right to life under article 21, because no person can live without the means of living, so that deprivation requires a just, fair and reasonable procedure; and that the removal of the pavement dwellers was nevertheless upheld, because no one has a right to encroach on a footpath or public place, subject to directions on deferring the removal, on long-standing slums and on alternative pitches for those censused.

2. What did the Court say about a power to remove without notice? That section 314 permitting removal without notice is a power and not a duty: it enables the Commissioner to act without notice where the circumstances require it, and ordinarily notice must be given and the affected person heard, an emergency alone justifying immediate action.

3. What is the right to shelter, and in which case? Chameli Singh v. State of Uttar Pradesh: the right to shelter is a component of article 21 and of article 19(1)(e), and means not a mere protection of life and limb but the facility to grow physically, mentally, intellectually and spiritually, requiring adequate living space, a safe and decent structure, clean surroundings, sufficient light, pure air and water, sanitation and other civic amenities.

4. What did the Seventy-fourth Amendment create, and what is its principal weakness? Part IXA, articles 243P to 243ZG, constituting Nagar Panchayats, Municipal Councils and Municipal Corporations, with direct election from wards, reservation including not less than one third of all seats for women, a five-year term, a Finance Commission and planning committees. Its weakness is article 243W: the powers and responsibilities, including the eighteen matters in the Twelfth Schedule, are those the State Legislature MAY confer, so devolution is optional and differs greatly between States.

5. Which entries of the Twelfth Schedule concern the subject of this chapter? Entry 10, slum improvement and upgradation, and entry 11, urban poverty alleviation. Both are municipal functions only where the State Legislature has devolved them under article 243W, and they are among the least devolved.