Principles of Jermy Bentham and Supreme Court of India - Case Comment - Olga Tellis and Ors. v. Bombay Municipal Corporation

Olga Tellis v. Bombay Municipal Corporation  (herein after referred as Olga Tellis) was decided in 1985 by the five Judges Bench of the Supreme Court of India. The Hon'ble bench comprised of C.J., Y.V. Chandrachud, J., A.V. Varadarajan, J., O. Chinnappa Reddy, J., S. Murtaza Fazal Ali and J., V.D. Tulzapurkar. This case came before the Supreme Court as a writ petition by persons who live on pavements and in slums in the city of Bombay. It was prayed by the petitioners to allow them to stay on the pavements against their order of eviction. The majority judgment (concurring by all the five Judges) was delivered by Hon'ble Chief Justice Y.V.Chandrachud.

Factual Score of Olga Tellis

The writ petitions were filed by the slum dwellers and pavement dwellers before the Supreme Court of India. This class of people constituted nearly half the population of the city of Bombay. The respondents - State of Maharashtra and Bombay Municipal Corporation took a decision that all pavement dwellers and the slum or bust 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 section 314 of the Bombay Municipal Corporation Act, 1888. Pursuant to that decision, the pavement dwellings of some of the petitioners were in fact demolished by the Bombay Municipal Corporation. The petitioners challenge the order of the Bombay Municipal Corporation of eviction as being unreasonable and unjust without providing with alternative living facility. The petitioners claimed right to livelihood as a part of their right under Article 21 of the Constitution that is right to life under Article 32. Moreover, petitioners contended that sections 312, 313 and 314 of the Bombay Municipal Corporation Act are invalid as violating Articles 14, 19 and 21.

Issues Considered by the Apex Court
1. 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 under article 21 of the Constitution.
2. That the impugned action of the State Government and the Bombay Municipal Corporation is violative of the provisions contained in Article 19(1) (3), 19(1) (g) and 21 of the Constitution.
3. 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.

Decision of Supreme Court
The decision of the Supreme Court in this case was based on the humanistic approach of the judges and the Apex Court stepped into the activist role. The Hon'ble Supreme Court held that the slum dwellers must get the alternative shelter if they are evicted from the pavements.Although, the eviction orders were held to be valid under article 14 and 19 of the Constitution. Infact, the right to life was once again enlarged to engulf the right to livelihood as being a part of liberty of an individual. The decision of the Court also focused on the concept of the welfare state and reliance though not expressly but impliedly was placed on the Directive Principles of the State Policies under the Constitution.

Rationale, Reason and Jurisprudence of Olga Tellis

The decision of this case essentially falls back on the premise of the positivism. The judgment delivered by C.J., YV.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. In Para 28, Justice Chandrachud took the approach propounded by Hans Kelson, where he considers constitution as a highest norm or the Grundnorm. According to Kelson, Grundnorm is the basic norm which determines the content and gives validity to other norms derived from it. On this basis, Justice Chandrachud, observes in Para 28 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.

Furthermore, it is the theory of the "Father of the English Jurisprudence" - Jeremy Bentham (1748-1832) 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.

1. Law in the Reformative Process

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) .Olga Tellis 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 Hon'ble Court clearly indicates the follow up of the Bentam'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, positum, 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 Bentamite 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.

2. Hedonist Utilitarianism

Olga Tellis brought the concept of Benthamite philosophy of the Hedonist Utilitarianism. Justice Chandrachud in Para 1 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 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 312-314. 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 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 or 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 Chandarchud in Para 49 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. The Court relied upon the Pelican book in Para 56 and states,

Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by identifiable forces within the province of rational human control.

In the above-mentioned finding by the Hon'ble Supreme Court it is evidently clear that the reliance was placed on the "destiny of millions of fellow creatures". It signifies the application of the Bentham principle of utility in the outcome of the judgment of Olga Tellis.

Bentham's justification of his utilitarianism is founded upon four propositions. These are as follows,
1. All agents (as agents) seek a personal good.
2. Ultimately, all self-conscious agents aim at the same goal (irrespective of the particular context in which the particular action is performed).
3. That same ultimate goal is always the maximization of personal pleasure (and the avoidance of personal pain).
4. The proper role of the state is to promote the greatest aggregate pleasure within its community.

The four commands of utility for civic society in the Bentham's Utilitarianism, upon which the aggregate happiness depends are security, subsistence, abundance and equality. Out of the above, security was the most important. Subsistence, abundance and equality, however, all depended, in Bentham's view, on the paramount directive of security. The decision given by the Supreme Court heavily relies on the entire four propositions given by Bentham (above-mentioned). Justice Chandrachud in the Para 2 of the judgment lays down the emphasis on the slum dwellers right to life and reside in any part of the country with dignity as other citizens of the nation. He stated that an individual can live without security but cannot live without "subsistence" the Supreme Court in the instant case holding that the Right to livelihood and shelter as being an important component of the Right to Life again establishes a nexus between subsistence and right to livelihood once again confirming the abidance of the Benthamite principle of utility. Moreover when the court established that if the petitioners were evicted from their dwellings, they would be deprived of their livelihood.

The due recognition is given to the fact that the number of the pavement dwellers was huge and it constituted almost half of the city's population. Therefore, the test greatest aggregate happiness for the greatest number is also fulfilled. According to Jullias Stone , by happiness of the community Bentham meant simply the aggregate of individual surpluses of pleasure over pain. The greatest happiness of the greatest number states that the pleasure and the pains of the society are to be weighed at same plane. In this case also the pleasure of the society was upheld and also the pain of another section of the society (slum dwellers) was brought down.

Then Bentham's principle of utility becomes the principle that we are always to act in such a way as to give as many people as possible as much as possible of whatever it is that they want. I think that the interpretation in Olga Tellis preserves the essence of Bentham's doctrine, and it has the advantage of making it independent of any special psychological theory.

Conclusion
To conclude, the whole Benthamite principle applied by Justice Chandrachud on behalf of all the brother Justices can be summarized in one sentence stated in Para 46 of the judgment, Human compassion (happiness) must soften the rough edges of justice in all situations. Thus, it can be concluded the Supreme Court adopted the Utilitarian Principle in terms of the pleasure and pain calculus or the hedonistic calculus of Jermy Betham.

Authored by Sandeep Pathak and can be reached at: [email protected]

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