Sumeet Senapati, SOA National Institute of Law, Bhubaneswar
Himanshu Rana, School of law Christ University
Sri Sai Kamalini, School of Law, Sastra University, Chennai.
In any organized society, the right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guarantee in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. The word ‘life’ as employed by Article 21 takes in its sweep not only the concept of mere physical existence by also all finer values of life including the right to work and right to livelihood.
This right is a fundamental right guaranteed to all persons residing in India, citizens and non-citizens alike. Right to life including right to livelihood and work as guaranteed by Article 21 is not reduced to a mere paper platitude but is kept alive, vibrant and pulsating so that the country can effectively march towards the avowed goal of establishment of an egalitarian society as envisaged by the founding fathers while enacting the Constitution of India along with its Preamble.
RIGHT TO LIFE EXTENDS TO LIVELIHOOD
In 1960, the Apex Court was of the view that Article 21 of the Indian Constitution does not guarantee the right to livelihood.
In Re Sant Ram, a case which arose before Maneka Gandhi, the Supreme Court ruled that the right to livelihood would not fall within the expression “life” in Article 21. The Court said curtly:
“The argument that the word “life” in Article 21 of the Constitution includes “livelihood” has only to be rejected. The question of livelihood has not in terms been dealt with by Article 21.”
The Supreme Court in Olga Tellis v. Bombay Municipal Corporation, popularly known as the “Pavement Dwellers Case” a five-judge bench of the Court implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of Livelihood. That the court, in this case, observed that: “The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not merely mean that life cannot be extinguished or taken away as, for example, by the imposition and execution of death sentence, except according to the procedure established by law. That is but one aspect of the right to life. An equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood.”
If the right to livelihood is not treated as a part and parcel 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.
SALIENT FEATURES OF ARTICLE 21
It is true that originally when this Article was cleared by the Constituent Assembly for its inclusion in the Constitution the founding fathers emphasized the term ‘life’ or the term ‘personal liberty’ with special reference to incarceration as per the established procedure under any legal and valid law. But the term ‘deprivation of life’ as employed by Article 21 in its present form cannot necessarily mean total extinction of only physical existence. The term ‘life’ as employed by Article 21 has received an expanded meaning in the light of a series of decisions of the Supreme Court.
Life can be extinguished or become worthless for anyone who cannot have adequate monetary support or economic sustenance. If a person is a hungry and starving life for him is not worth living. He may be only ‘breathing’ but he would not be ‘living life’. Such hungry people are prone to commit any type of misdeed for eking out their miserable existence. It is intending to avoid such hunger of persons residing in India that the founding fathers can be said to have enacted Article 21 enjoining upon the State not to deprive any person of his ‘life’ except by procedure established by law. Therefore, the term ‘life’ as found in Article 21 must necessarily encompass with its fold right to an adequate livelihood and work so that the concerned person is not reduced to the shadow of his real self and does not merely remain a breathing skeleton.
It is, of course, true that Article 21 is couched in a negative term as contrasted with Article 19(1)(g) which is in positive terms. However, that would not whittle down the efficacy and the parameters of Article 21 which guarantees by way of the fundamental right to every person residing in India the right to effective and dignified existence to lead a happy and healthy life. This in its turn would necessarily imply the guarantee of being ensured adequate means of livelihood and work. As Article 21 itself includes a mandate to the State not to tinker with the fundamental rights of persons entitled to lead a healthy life except by enacting valid laws, the directive principles as enshrined in the aforesaid Articles which also operate in the very same field of legislative exercise by the State must necessarily have to be read in conjunction with the mandate of Article 21 and not dehors it. When so read it becomes obvious that it will be the duty of the State to see to it that every person residing in India is enabled to enjoy a healthy life by being provided with adequate means of livelihood and right to work.
It is, of course, true that such right to work and guarantee of adequate means of livelihood as enjoined by Article 21 cannot permit any citizen to insist on carrying of any work which is obnoxious by itself or which is illegal as that would cut across Article 19(1)(g) read with Article 19 ( 6) and also Article 14 of the Constitution of India which covers non-citizens as well. Right to work and to carry on any legally permissible occupation or avocation in life to enjoy adequate means of livelihood for leading a healthy and meaningful life would remain well sustained on the combined operation of Articles 14, 19(1)(g) and 21.
It is also trite to say that the procedure established by law for cutting across the right of any person to be supplied adequate means of livelihood or adequate opportunities for work by the State also cannot be a procedure which falls foul on the altar of Article 14. Thus before a person can be deprived of his life and personal liberty as guaranteed by Article 21 by any procedure established by law, such law must steer clear of all the restrictions imposed by Articles 14 and 19(1)((g) on the power of the concerned Legislature to enact such laws. If there is any head-of collision of such procedural law with any of the aforesaid fundamental rights Article 13 would start clicking and would invalidate such procedural law.
Olga Tellis v. Bombay Municipal Corporations, AIR 1986 SC 180
The facts of the case are as follows, in this case, the Supreme court of India got the question in front of them, where they have to consider whether the right to life includes the right to livelihood. Here, the Bombay Municipal Corporation evicted the people who started living on the pavements, which are meant to be as for public place and is not supposed to be made as home. The respondents - The 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.
The writ petition here being filed covering of almost half the population of the city, composed of slum dwellers and pavement dwellers. The petitioner contends that the act of authorities had infringed their fundamental right to life under Article 21 as well as their fundamental right under Article 19(1)(3) and 19(1), as the act of evicting under the provisions of bye-laws that is the Bombay Municipal Corporation Act, has been carried out is of arbitrary in nature and fanciful. Moreover, petitioners contended that sections 312, 313 and 314 of the Bombay Municipal Corporation Act are invalid as violating Articles 14, 19 and 21.
There were majorly three issues in this case, first that whether the procedure prescribed by section 314 of the Bombay Municipal Corporation Act, 1888, for the removal of encroachments from pavements is arbitrary and unreasonable. Second, whether 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. Third, that whether 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.
The laws that were in question and the provisions were the- Part – III (Fundamental Rights) of Constitution of India, 1950, The Bombay Municipal Corporation Act, 1888 and the Writ jurisdiction under Article 32 of the Constitution of India, 1950
The first argument here is whether the petitioner’s fundamental rights are infringed or not. The ambit of the right to life being covered under Article 21 is wide and is far-reaching. But also, it does not mean that life can never be taken away, we can understand it by the example of the death sentence. So, there is an exception of the procedure established by law, this can be seen one aspect of seeing the Right to life.
Secondly, the state cannot be compelled by affirmative action to provide for proper means of livelihood or adequate work to the citizens. But it is that if any person is being 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 19 and Article 21.
As we can see the Constitution of India speaks that the fundamental rights are not absolute and can be restraint with a just and fair procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888 is properly established and is not ambiguous. So, the respective provisions, which are here of questions are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public has a right of passage or access over those pavements.
Supreme Court while giving his judgment created a balance here by upholding the validity of the questioned Act, but not on the cost of the dwellers. The right to life which is having its existence due to right to livelihood is being respected by the court in the present matter.
Conclusion and Analysis
In this case C.J., YV. Chandrachud delivered his judgment solely based on the concept of analytical positivism of Britain. He followed the letter of law, concerning the law and the constitution as paramount. It can also be concluded after reading the judgment that the Supreme Court here in this case of Olga Tellis focused on both the premises, that is reformation and superiority of law. It was great while analysing how the justice Chandrachud based his argument basing on the letter of law, wherein the Bombay Municipal Corporation Act, he referred about using of word ‘may’ and not ‘shall’ referring it to be not arbitrary and upholding the validity of the Act. Justice Chandachud made his rational by discussing various jurists and following the highest norm or the Grundnorm.
It was upheld in this case that there can be no estoppels to the Constitution of India. The constitution is not only the supreme law of the land but also, it is the source of all laws. Its provisions are well made in the public interest and solely intend to serve the public purpose.
Furthermore, while analyzing the judgment, it is the theory of the “Father of the English Jurisprudence” – Jeremy Bentham which was reiterated by the Supreme Court in true essence. Bentham gave his views about the reform of the substantive law by the way of reforming the structure of law. At the beginning of the judgment, the judgment was started by mentioning that the petitioner covers more than half of the population of the city. So, it can be inferred that the judgement is going to follow some kind of sympathy and justice to all. 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.
This case can be referred to as to be the judgment that leads to the reformation of substantive law, Jeremy Bentham has divided the jurisprudence into two aspects, that is, censorial (what law ought to be) and expositorial (what law is). This judgement of Olga Tellis has shifted the nexus from censorial jurisprudence to expositorial jurisprudence by expanding the scope of Article 21 of the constitution of India, adding the right to livelihood and the right to shelter in the right to life. The reasoning of the same was very much cleared by the court referring as the right to livelihood is an important aspect of the right to life as no person can live without the means of living i.e. the right to livelihood. The court giving it more evident example stated - “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.”
So, as to have more grasp and to conclude the application of the Bentham’s ideology can be understood from one sentence, that is, para 46 of the judgement stated by Justice Chandrachud on behalf of all the brother Justices, “Human compassion (happiness) must soften the rough edges of justice in all situations.” Thus, it can be well said that while giving its judgement, Apex Court adopted the Utilitarian Principle in terms of the pleasure and pain calculus or the hedonistic calculus of Jeremy Bentham.
Deprivation of livelihood would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet such deprivation of life would not be under the procedure established by law if the right to livelihood is not regarded as a part of the right to life. It has also to be kept in view that Article 21 is neither suspendable during emergency nor capable of being abrogated or amended and, therefore, the State is governed and guided by the provisions of Article 21 in Part III and the Directive Principles in Part IV in this connection has to see to it that right to life including right to livelihood as guaranteed by Article 21 is not reduced to a mere paper platitude but is kept alive, vibrant and pulsating so that the country can effectively march towards the avowed goal of establishment of an egalitarian society as envisaged by the founding fathers while enacting the Constitution of India along with its Preamble. However, as already observed above, this right is not absolute and there is no absolute embargo on its deprivation.
 . Sir L.A. Shah Law College, and I. M. Nanavati Law College, ARTICLE 21 OF CONSTITUTION OF INDIA AND RIGHT TO LIVELIHOOD,(19th October 2020) ,http://www.voiceofresearch.org/Doc/Sep-2013/Sep-2013_14.pdf,  AIR 1960 SC 932 SMARIKA AZAD ARTICLE 21: RIGHT TO LIFE & LIVELIHOOD ,(19th October 2020) ,https://lawlex.org/lex-bulletin/article-21-right-to-life-livelihood/3631  1985 SCC (3) 545  Subodh Asthana ,Extended Jurisprudence of Article 21 through the Lens of Right to Livelihood ,(19th October 2020),https://blog.ipleaders.in/right-livelihood/  . ibid Sandeep Pathak, Principles of Jeremy Bentham and Supreme Court of India, Legal Service India (June 20, 2020, 8:00 pm), http://www.legalserviceindia.com/articles/case.htm Bentham, Jeremy, 1789 [PML]. An Introduction to the Principles of Morals and Legislation., Oxford: Clarendon Press, 1907. Olga Tellis v. Bombay Municipal Corporations, AIR 1986 SC 180 Olga Tellis v. Bombay Municipal Corporations, AIR 1986 SC 180