This article is authored by Gauri Bansal and edited by Mr. Anoop Prakash Awasthi, AOR and Adv. Prapti Singh.
SC/0039/1985
This case concerns itself with the plight of pavement and slum dwellers of a large metropolitan city.
FACTS
A writ petition was filed by journalist Olga Telis and two pavement dwellers whose establishments were demolished following an order of eviction and deportation of slum and pavement dwellers passed by the Government of Maharashtra sighting the Bombay Municipal Act 1888. A second group of petitioners whose plea was heard along with this petition belonged to two different slums and alleged that attempts were made to deport them from then place of settlement even though they had obtained an ender of injunction restraining the officer of the State Government from carrying out the directives of the abovementioned order of eviction
QUESTION OF LAW
- Whether, within the ambit of Article 32, nu estoppel can be obtained got the enforcement of Fundamental Rights?
- Whether forcible eviction of their settlements deprives slum dwellers of their livelihood and consequently of their right to life as guaranteed by Article 21 of the Constitution and is further in violation of their right to occupation and right to settle as given in Articles 19(1)(e) and Article 19(1)(g) of the Constitution of India?
- Whether the law laid down in Section 314 read with Sections 312 and 313 of the Bombay Municipal Corporation Act which empowers the Municipal Commissioner to remove any object or structure set up on one street without notice is reasonable, fair and just?
HELD
The Court held that the petitions were maintainable under Article 32, which gives one the right to approach the Supreme Court directly in the case of violation of a fundamental right, and that there can be no estoppel issued against the Constitution. The Court held that:
-No individual can barter away the freedoms 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 will not enforce any particular fundamental right, cannot create on estoppel against himin that or any subsequent proceedings. Such a concession, if enforced would defeat the purpose of the Constitution.
The next question that the Court addressed related to Article 21 of the Constitution of India which reads “No person shall be deprived of his life or personal liberty except according to procedure established by law. The contention about whether a right to life meant a right to livelihood was cleared when the Supreme Court unequivocally stated that a right to life would be meaningless without ensuring means of livelihood. The Court held that;
No person can without the means of living her 11, the means of hood If the right to vote read on a part of the communal right to lie, the easiest way of depriving a person his right to life
would be to deprive him of men of heed to the point of abrogation Such deprivation would decide the life of its effective contour light file to live. And yet, such deprivations not have to be in accordance with the procedure established by law of the right livelihood is not regarded as a part of the right to life.
Giving consideration to the plight of pavement and slum dwellers and the economic compulsions that force them to lead by al Ide the Supreme Court further held that the night to occupation as well as the right to settle as in Articles 19(1X) and 19(1)(g) have been violated by the Bombay Municipal Corporation Act 1888 as an eviction from their dwelling, however its nature might be will lead to a disruption of their occupation and settlement. The Court held that there an obligation upon the State to secure the citizens adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from content of right to life.
Coming to the second part of Article 21 regarding the “procedure established by law, the Court hold that Section 314 was in fact valid law and not meuble in any way as the provision given was of an enabling nature and not a compulsion wherein it conferred upon the officer the right to demolish, without notice any object set up on the street if the need arise.
The Court, however, also specified that such a “need” land to be judged carefully and exercised only when no other option was available. In the current case, the Court said that a “right to be heard ought to have been extended to the pavement dwellers, that is, a notice ought to have been served before eviction. In light of this reasoning the Court passed an order of eviction along with offers of alternative patches with a month’s notice to be extended to the pavement dwellers.
