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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, longterm 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
Nancy Wright, Not in Anyone's Backyard: Ending the "Contest of Nonresponsibility"
and Implementing Long-Term Solutions to Homelessness, 2 Geo. J. on Fighting Poverty
163, 166 (1995). "In 1992, the number of people living in poverty rose for the third
consecutive year to 36.9 million [in the United States], increasing three times as fast as
the overall population." Id. at 166.
2
Id. at 165.
3
Michael L. Perlin, Competency, Deinstitutionalization, and Homelessness: A Story of
Marginalization, 28 Hous. L. rev. 63, 74 (1991).
4
See Bombay to Mumbai Past, Present and Future, viewed at
http://www.newint.org/issue290/bombay/htm, at Oct. 31, 2002.
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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 Corporation5 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
5
A.I.R. 1986 S.C. 180.
405 U.S. 56 (1972).
7
See InfoChange, Books & Reports,
http://www.infochangeindia.org/bookandreportsst2.jsp, on Oct. 31, 2002.
8
See Bombay to Mumbai Past, Present and Future, viewed at
http://www.newint.org/issue290/bombay/htm, at Oct. 31, 2002.
9
See Bombay to Mumbai Past, Present and Future, viewed at
http://www.newint.org/issue290/bombay/htm, at Oct. 31, 2002.
10
See (get census cite).
11
Id.
12
Id.
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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
13
Id.
The Shunned and Shunted, The Slum and Pavement Dwellers of Bombay, a report by
the People's Union for Civil Liberties, pg. 3 (Sept. 15, 1983).
15
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. (check cite)
16
See Shunned and Shunted, supra note 8, at 3.
17
Id.
18
Id.
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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
19
Id.
Id. (preface).
21
Id. at 4.
22
Id.
23
Id.
20
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"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
24
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, 183-84. (check cite)
Id. at 184.
26
Id. at 181-82,185.
27
Id. at 186.
28
Id. at 185.
29
Id. at 186.
25
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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
30
Id. at 187.
Id.
32
Id. at 188.
33
Id. at 189.
34
Id. at 190.
31
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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
35
Id. at 192.
Id. at 192-93.
37
Id. at 194.
38
Id.
36
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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
39
Id. at 195.
Id.
41
Id. The Court noted "it is estimated that about 200 to 300 people enter Bombay every
day in search of employment." Id.
42
Id.
43
Id. at 196 ("Any action taken by a public authority which is invested with statutory
powers has, therefore to be tested by the application of two standards: The action must
be within the scope of the authority conferred by law and secondly, it must be
reasonable").
40
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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
44
Id.
Id. at 198.
46
Id. at 197-98.
47
Id. at 199. The Court rejected the BMC's argument that "no useful purpose could be
served by issuing a notice as to why an encroachment on a public property should not be
removed" because "no effective answer could be given" in response. Id. The Court
noted that to find otherwise "betrays a misunderstanding of the rule of hearing, which is
an important element of the principles of natural justice." Id.
48
Id. at 200.
45
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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.
49
Id. at 201 (quoting Ramaswamy Iyer's 'Law of Torts' 7th Ed. by Justice and Mrs. S.K.
Desai, p. 98, para. 4.0).
50
Id. at 201-02.
51
Id. at 202.
52
Id. at 203.
53
Id.
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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
54
Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in
the Light of American Experience, 29 Journal of the Indian Law Institute 494, 516 (date
not on photocopied material, need to insert).
55
Id. (quoting the Court in P. Nalla Thampy Thera v. Union of India, A.I.R. 1984
S.C.74).
56
Id. at 517.
57
A.I.R. 1985 S.C. 910.
58
Cunningham, supra note 54, at 518. In another case, Prabhakaran Nair and Others v.
State of Tamil Nadu and Others (CITE NEEDED), the Court similarly urged the
government to institute a new National Housing Policy, stating "shelter is one of our
fundamental rights." Id. at ____. The court seemingly pleaded with the government that
"[l]aws must be simple, rational and clear. . . .Litigations must come to an end quickly.
Such new Housing Policy must comprehend the present and anticipate the future. The
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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
idea of a National Rent Tribunal on an All India basis with quicker procedure should be
examined. This has become an urgent imperative of today's revolution. A fast changing
society cannot operate with unchanging law and preconcieved judicial attitude." Id. at
____ (emphasis added).
59
See Interview Clark D. Cunningham Interview with Olga Tellis (Feb. 13, 1986).
60
Id.
61
Stephen Rego, The Urban Slum: Exploiting the Eyesore, Humanscape-Jan '97, viewed
at http://www.indiawatch.org.in/ezines/humanscape/jan97-2.htm, on Oct. 15, 2002.
62
Id.
63
Id.
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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
III.
The United States' Experience with Litigation for the Homeless: No
Fundamental Right to Shelter
A.
Lindsey v. Normet
In Lindsey v. Normet,67 the issue before the Court was whether "Oregon's judicial
procedure for eviction of tenants after nonpayment of rent violates either the Equal
Protection Clause or the Due Process Clause of the Fourteenth Amendment."68 The
petitioner's argued that in determining the constitutionality of the statute, the Court must
apply a strict scrutiny standard and strike down the statute because shelter is a
fundamental right, and the abrogation of that right can only occur if the government can
64
Darryl D'Monte, Urban India's 'Other Half' Stirs, viewed at
http://www.news.sawaal.com/expertsays/envior/index3.htm, on Oct. 15, 2002.
65
Id.
66
Id.
67
405 U.S. 56 (1972).
68
Id. at 58.
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show a compelling interest.69 Despite petitioner's arguments to the contrary, the Court
upheld the Act under the mere rationality standard because it served the "objective State
purpose" of "achieving rapid and peaceful settlement of possessory disputes between
landlord and tenant."70 The Court then held that there is no constitutional right to shelter:
[T]he Constitution does not provide judicial remedies for every social and
economic ill. We are unable to perceive in that document any constitutional
guarantee of access to dwellings of a particular quality, or any recognition of the
right of a tenant to occupy the real property of his landlord beyond the term of his
lease. . . .Absent constitutional mandate, the assurance of adequate housing and
the definition of landlord-tenant relationships are legislative, not judicial
functions.71
With these words, the Supreme Court manifests its reluctance, and perhaps
inability, to intrude into an area traditionally left for the legislative and executive
branches by creating a fundamental right to shelter which it cannot enforce. As the
holding in Normet suggests, and as one commentator has indicated, litigation in the U.S.
on behalf of the homeless is often unworkable in arriving at viable, enforceable solutions
because of the federal courts "narrow interpretation of constitutions and statutes."72
69
Id. at 73.
Id. at 72-73.
71
Id. at 74 (emphasis added).
72
Ronald C. Slye, Community Institution Building: A Response to the Limits of
Litigation in Addressing the Problem of Homelessness, 36 Vill. L. Rev. 1035, 1041
(1991).
70
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V.
Conclusion
By comparing the decisions of Olga Tellis and Normet, two different philosophies
of the Court's role in addressing the pervasive economic and social problem of the
homeless in society become apparent. In Olga Tellis, the Indian Supreme Court asserts
an activist role in government by interpreting Article 21's right to life broadly to include a
right to shelter. One commentator has commented on the Indian Supreme Court Justices
broad interpretations on behalf of the poor and commitment to judicial activism as
"'essential for participative justice . . . Justices are the constitutional invigilators and
reformers (who) bring the rule of law closer to the rule of life.'"73 On the other hand, the
U.S. Supreme Court in Normet declined to play a similar activist role in declaring a
fundamental right to shelter, leaving the issue instead in the hands of the legislature, if it
so chooses to address it. As Professor Cunningham notes:
Whereas the U.S. Supreme Court, when confronted with a remedial scheme that
seems to invade the province of the executive, asks whether such a remedy is
justified by a finding of grave violation of constitutional rights, the Indian
counterpart seems willing to declare the right but delimit the remedy for reasons
not at all dependant on the extent and nature of the right at issue.74
Perhaps the Indian Court is one step ahead in recognizing that even without
providing an enforceable remedy, the declaration of the right to shelter assists in creating
a greater public awareness of the homeless problem, which will eventually pressure the
executive and legislative branches to find workable, long-term solutions.
73
Dr. Jeremy Cooper, Poverty and Constitutional Justice: The Indian Experience, 44
Mercer L. Rev. 611, 615-16 (quoting P. Singh, Judicial Socialism and Promises of
Liberation, 28 J. of Indian Law Institute 338,339 (1988)).
74
Cunningham, supra note 54, at 518.
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