Seminar on Judicial Power
First Draft 11/1/02
A Fundamental Right To Shelter?: A Comparison of the Indian and United State's Judicial Systems in Addressing the Problem of Homelessness
I.Introduction
The number of homeless is escalating in the United States and India.[1] In both countries, the rich are getting richer and the poor are getting poorer. In both countries, welfare systems and urban planning have consistently failed to develop workable, long-term solutions to assist the poorest of the poor. One commentator has stated that in the United States, "[h]omeless people are doomed by [the] cycle of compassion fatigue and legislative oppression."[2] The same statement could also be true, to a certain extent, of the citizens and legislature of India. Some of the contributing factors of homelessness in India and the United States are also similar, including "the shrinking housing market [and] the general reduction in the availability of governmental benefits."[3] However, in stark contrast to the majority of homeless in the United States who are unemployed, and are often mentally or physically disabled, the homeless of India (referred to as "pavement dwellers") are a main contributor to India's economy. One study revealed that approximately 22% of India's pavement dwellers are self-employed in a trade, including cobblers, tailors, vendors, etc. and 53% are manual laborers.[4]
Another stark contrast between the two country's homeless crises is how the problem of homelessness has been litigated and handled by the judiciary. This paper will explore these differences through the discussion of the two seminal cases from each country where the Supreme Courts addressed whether there is a fundamental right to shelter and/or livelihood: Olga Tellis v. Bombay Municipal Corporation[5] and Lindsey v. Normet.[6]
II.India's Experience with Litigation for the Homeless: Olga Tellis v. Bombay Municipal Court
A.Mumbai's Population Crisis
As of March 1, 2001, India's population totaled 1,027,015,242, or roughly 16.7% of the world's population.[7] The population of Mumbai (formerly Bombay) is currently estimated at 13 million.[8] Approximately 55% or 6 million of Mumbai's population are technically homeless.[9] In contrast, the entire population of Georgia is a little over 8 million.[10] While some of these individuals live in shanties or slums, most live on the city's sidewalks and streets and are referred to as "pavement dwellers."[11] In the heart of Mumbai lies Dharavi, claimed to be the "largest slum in Asia" and home to approximately 700,000 people.[12] These huge slums in Bombay and other Indian cities began growing at rapid rates after India's Independence in 1947 when a large migration of people from the countryside began to turn to employment opportunities there in order to survive. In almost everyway, the Government's capacity to keep up with the city's rapid growth has failed. According to one report, Mumbai is a "picture of pollution, inadequate landfills, hazardous industrial wastes, chemical related disasters and rampant disease."[13]
B.Olga Tellis v. Bombay Municipal Corporation: Case Background
Against this backdrop of Mumbai's population and housing crisis, the Olga Tellis case arose, India's seminal case on homelessness and the right to housing. On July 13, 1981, it was reported that the Chief Minister intended to launch an immense "Pavement Clearance" program in order to remove approximately 100,000 of the Mumbai's pavement dwellers outside the city's limits.[14] The Chief Minister justified this program by concluding that the pavement dwellers live a "very inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably."[15] Ten days later, "on one of the worst days of the monsoon, "the Government began deporting the pavement dwellers without any prior notice.[16] According to the People's Union for Civil Liberties (PUCL), the pavement dwellers' huts were destroyed, "[f]amilies were separated, young children and old people died and a woman even delivered a child on one of the buses."[17]
On the same day, the PUCL moved the Bombay High Court to issue an injunction to stop the deportation.[18] During the injunction hearing, counsel for the PUCL made clear that he was not arguing that the pavement dwellers had a fundamental right to live on the pavement or to housing or shelter in general.[19] Instead, the PUCL's intent was to "advocate the adoption and implementation of policies which would ensure an adequate supply of basic shelter in a planned manner which would then preclude the possibility of vast numbers of people having to devise solutions to their shelter problem which run counter to good city management."[20] The court granted PUCL's injunction to stop the demolition of the hutments until the end of the monsoon, and the PUCL subsequently petitioned the Supreme Court which it felt was the only forum capable of deciding such "wide-ranging and important issues."[21] At the same time, Olga Tellis, a journalist, filed a separate petition to the Supreme Court arguing that the pavement dwellers had a fundamental right to live on the pavement.[22] However, both Ms. Tellis and the PUCL advocated that the Government could not evict the pavement dwellers without providing some sort of alternative living arrangements (check on this – I might be confused here). As a result of these petitions, interim orders were passed to prevent further demolition of the hutments unless certain procedures were followed, including the giving of a 72-hour notice of the Government's intent.[23]
B.Case Discussion: Arguments and Analysis
1.Arguments
Justice Chandrachud, writing for the majority, first addressed the petition of the PUCL that the pavement dwellers could not be evicted by the BMC without being "offered alternative accommodation."[24] The PUCL contended that the 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."[25] Additionally, the petitioners asked the Court to declare that provisions 312, 313 and 314 of the Bombay Municipal Corporation Act (BMC Act), which provided for the removal, as invalid and violative of Articles 14, 19 and 21.[26]
In response, the Government contended that these provisions of the BMC Act were not unconstitutional, but rather were enacted for the public interest.[27] According to the BMC, the removal of the hutments were necessary to prevent "hazards of health and safety," crime, and that "no person has any legal right to encroach upon or to construct any structure on a foot-path, public street or any place over which the public has a right of way."[28] 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 "[t]he 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."[29]
In reply, petitioner PUCL 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."[30] In sum, the PUCL 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.[31]
The Court then reviewed the reasons advanced by Ms. Tellis in her petition for the enormous growth of hutment settlements, which can be summarized as the lack of cities to abide by their Development and Master Plans.[32] According to Ms. Tellis, the pavement dwellers choose their living sites because of their close approximation to work opportunities and other important city facilities including schools, hospitals and transportation. Ms. Trellis contends that only the "regional distribution of job opportunities" on adequate vacant land within in the City and the building of an associated infrastructure can remedy the city's population and housing crisis.[33] The Court summarized Ms. Tellis arguments in the following statement:
The right to live and the right to work are integrated and inter-dependant and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to live is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right.[34]
However, the BMC countered that the pavement dwellers were estopped from
claiming that living on the pavement constituted a fundamental right because their counsel specifically conceded that there was no such fundamental right during the initial injunction proceedings.[35]
2.Analysis
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."[36] With this statement, the Court then considered the validity of the petitioner's contentions. First, the Court concluded that the right to life is inextricably linked to a right to livelihood, concluding that "[i]t is the most precious liberty, because it sustains and enables a man to live and the right to life is a precious freedom."[37] While the Court reasoned that the Government could not be compelled to provide "adequate means of livelihood," it held that "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."[38] Then, departing from the typical evidentiary standards of proof of harm or violation of a fundamental right as required in the United States, the Court indicated that empirical data and expert studies could be relied upon to infer that the demolition of the pavement dweller's hutments and their deportation outside the city would deprive them of a livelihood.[39] According to the Court, "[c]ommonsense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants."[40] A notable fact which related studies uncovered relied on by the Court was that even after they are evicted, pavement dwellers return to the streets of Bombay, often to the same places from which they were evicted, because that is the only place they can find work.[41] In conclusion, the Court determined that the pavement dwellers eviction would lead to the deprivation of their livelihood and ultimately their life.[42]
However, despite holding that the petitioner's indeed had a right to livelihood (to live on the pavement) and that such right was violated, the Court was not done with its analysis. This is because Article 21 of the Constitution will allow a fundamental right to be deprived by the Government, as long as it does so according to a procedure established by law. Here, the law at issue is the BMC Act, specifically provisions 312, 313, and 314 discussed above. Therefore, the procedures provided for in the Act to remove encroachments on the pavement must be "fair, just and reasonable" to pass constitutional muster.[43]
The Court initially stated that section 314 of the Act, which provides for the removal of encroachments on the pavements was not unfair or unreasonable under Article 21.[44] Section 314 provides that the Commissioner "may, without notice, take steps for the removal of encroachments in or upon any street, channel, drain, etc."[45] In arriving at this conclusion, the Court reasoned that 1) the pavements were intended for public, not private use; 2) because the pavement dwellers used public property for public use they were considered trespassers; and 3) as such their use of the pavements creates a nuisance to the public passing by and creates traffic hazards.[46] Then, after looking to the plain meaning of section 314, the Court interpreted as conferring on the Commissioner "discretion to cause an encroachment to be removed with or without notice" which must be "exercised in a reasonable manner so as to comply with the constitutional mandate" of Article 21.[47] Nonetheless, the Court emphasized the importance of notice: "Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome: these rights to interchange express the elementary idea that to be a person rather than a thing, is at least to be consulted about what is done with one."[48]
The Court then dismissed the BMC's arguments regarding the pavement dweller's trespass, stating that even if they were trespassing on public property, their trespass was involuntary and "'the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him."[49] The Court further rejected the BMC's contention that the pavement dwellers exhibited criminal tendencies, noting that they are a "peaceful lot" who were not inclined to lose their jobs or dwelling, regardless of how humble, by engaging in criminal activity.[50]
C.A Right Without a Remedy
Even with these findings, the Court sided with the BMC, 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.[51] 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."[52] 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: "On these matters, the demand is not so much for less Governmental interference as for positive governmental action to provide equal treatment to neglected segments of society. The profound rhetoric of socialism must be translated into practice for the problems which confront the State are problems of human destiny."[53] Thus, four years after the BMC first demolished their hutments, the pavement dwellers of Mumbai were left with a right to livelihood – to live on the pavement- with no relief in sight from the Government other than a notice before their dwellings are destroyed.
Even though the Court did not give a reason for declining to order the Government to take any specific actions to relieve the homeless crisis in Bombay, according to Professor Clark D. Cunningham in his article Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience, the Court may have provided the reason in an earlier decision in P. Nalla Thampy Thera v. Union of India.[54] In Thera, the Court agreed that the petitioners enjoyed a fundamental right to travel throughout India, but refused to issue any order to the Government to improve the transportation system, concluding that "[g]iving directions in a matter like this where availability of resources has a material bearing, policy regarding priorities is involved, expertise is very much in issue, is not prudent."[55] As Professor Cunningham notes, if the Court were to order relief in such situations, it would likely by "exceeding the limits of judicial power."[56] Furthermore, in State of Himachal Pradesh v. U.R. Sharma,[57] another case where the Court held that petitioners had established a fundamental right but refused to grant a remedy, the Court "discussed at length the importance of judicial deference to the doctrine of separation of powers and emphasized that remedial action in PIL 'must be (done) with caution and within limits.'"[58]
D.Aftermath
According to Olga Tellis, she would not have brought the case in retrospect because not only did the Court provide no relief after four years and several stay orders, but the BMC's actions were vindicated as well: "We wasted 4 years sitting back instead of organizing the pavement and slum dwellers."[59] However, Ms. Tellis did concede that the case has "tremendous value in raising public consciousness" about the plight of the pavement dwellers.[60] Echoing Ms. Tellis's sentiments, Stephen Rego, a reporter, has commented that the Court in Tellis "in effect gave a green signal to the authorities to continue with its campaigns. Thus, today, even though 50 per cent of Mumbai's population that lives in slums occupy just six percent of the city's land, the threat of the BMC's demolition squads are always present."[61] According to Mr. Rego, the Tellis case did instigate a countrywide campaign for a right to housing, and, as a result, "the government once again made a subtle shift in its approaches" by upgrading various housing schemes.[62] Despite this awakening of the government and public consciousness, "the saga continues, the slums are attended to and demolished when the needs of the city spread."[63] In a 2000 article, another journalist confirms Rego's observations: "In a continuing climate of intolerance, slum dwellers are viewed as a drag on those who pay taxes . . . . It will be extremely difficult to rid citizens of or, for that matter, the government of these prejudices."[64] Again, echoing Ms. Tellis's sentiments regarding that the four years that the Tellis case took to be resolved could have been better spent by mobilizing the pavement and slum dwellers to demand that the government provide adequate housing, Mr. D'Monte concludes that: "Perhaps the only antidote to this discrimination will be initiatives on the part of the slum dwellers themselves to better their lot, with minimal help from the system."[65] Indeed, this "antidote," in recent years, has been seemingly more effective than any assistance of the judiciary. Instead, with the help of various NGO's including the Society for Promotion of Area Resource Centres (SPARC), many homeless families in Mumbai have been able to move into new tenements or resettle to other, suitable locations within the city.[66]