Olga Tellis v Bombay Municipal Corporation: The Supreme Court of India, the Right to Housing and the Interconnectedness of Rights

In General Comment 36 on Article 6 of the ICCPR – the right to life – the Human Rights Committee noted,

The right to life is a right which should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity.

A ‘life with dignity’, it recognised, includes access to food, healthcare and shelter (paragraph 26). It took a long journey to arrive at this wide interpretation of the right to life, and to recognise the interconnectedness of rights classified as ‘civil and political’ under the ICCPR, and those classified as ‘social and economic’ under the ICESCR. In this blog I argue that an Indian case from the 1980s made a crucial contribution to arriving at this understanding of the interconnectedness of rights – the case of Olga Tellis of the Supreme Court of India.

In this blog, I do the following: firstly, I give a background of the case; secondly, I trace its contributions to Indian constitutional law; thirdly, I explore its contributions beyond Indian borders; and lastly, I conclude with a critical evaluation of its lasting contributions for a project on constitutional landmarks.

The Story of the Case

The case arose when AR Antulay, the Chief Minister of the Indian state of Maharashtra, announced that all those living ‘illegally’ on pavements and ‘slums’ in the city of Bombay would be forcibly evicted and ‘sent back’ to wherever they came from. Bal Thackeray, whose party (Shiv Sena) ruled the local government – the Bombay Municipal Corporation – also wanted these ‘outsiders’ to be sent away, because ‘Bombay is not an orphanage for the entire country’. In this politically hostile environment, working class residents who lacked access to adequate housing, faced deprivation of even the bare shelter they managed to create for themselves on the pavements and slums of Bombay, as they sought jobs in the bustling city. The People’s Union for Civil Liberties, and journalist Olga Tellis, approached the courts to argue on behalf of these residents.

A five-judge bench of the Supreme Court unanimously held that the right to life under Article 21 of the Indian Constitution, means the right to a life of dignity, which includes access to livelihood and shelter. An earlier case – Francis Coralie Mullin – similarly interpreted the right to life widely. It held,

The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter…

While these were obiter dicta remarks in Francis Coralie Mullin, centred around prisoners’ rights, this became the ratio in Olga Tellis.

A Constitutional Revolution

To arrive at this wide interpretation of the right to life, the Indian Supreme Court read Article 21 along with the Directive Principles of State Policy (‘DPSPs’). These Principles, as proclaimed in Article 37, are not ‘enforceable by any court’, but, among other things, recognise the duty of the state to programmatically provide access to social and economic goods and services, including healthcare, education, livelihood, and a living wage (see Khaitan). When the Constitution was written, there was a clear separation between enforceable fundamental rights, and unenforceable DPSPs, and consequently between enforceable civil/political rights, and non-enforceable socio-economic guarantees (see Bhatia). Through cases such as Francis Coralie Mullin and Olga Tellis, the interconnectedness of different rights came to be recognised, and rights to livelihood, housing, and later healthcare and education, became directly enforceable before courts, as part of a justiciable right to a life of dignity under Article 21. This was, then, a constitutional revolution.

The revolution, in my view, achieved two things. First, it dismantled the strict division between civil and political rights on the one hand, and social and economic rights on the other hand, emphasising the interconnectedness of all rights. It is difficult to see whether the right to life should be considered as civil and political or as socio-economic once we interpret it widely. Many academics, including Shue and Fredman, emphasise the futility of attempting to distinguish between civil and political rights and social and economic rights, emphasising the interconnectedness of all rights, and that all rights give rise to a cluster of duties to respect, protect and promote and fulfil. The Indian Supreme Court in Olga Tellis adopted a similar view as a matter of constitutional jurisprudence, by recognising the interconnectedness between the rights to a life of dignity, livelihood and shelter. Second, it dismantled the difference in enforceability of different kinds of rights, recognising all rights forming part of the right to live with human dignity, as enforceable before courts.

Contributions to International and Comparative Law

This interpretative approach has had, and has the potential to have, ripple effects across jurisdictions.

International human rights law distinguishes between civil and political rights and socio-economic rights. The ICCPR contains rights traditionally regarded as civil and political rights, while the ICESCR contains rights commonly considered as social and economic. Today, the interdependence and interconnectedness of these rights is increasingly being recognised. In 2016, the Special Rapporteur on the Right to Adequate Housing drew on Francis Coralie Mullin and Olga Tellis to emphasise the interconnectedness of the rights to life and adequate housing. The Human Rights Committee incorporated her views into General Comment 36 on the right to life under the ICCPR. It widely interpreted the right to life as a right to a dignified life, including access to housing, shelter and food (paragraph 26), and highlighted the interconnectedness of rights under the ICCPR and other international instruments (paragraphs 52-70). In particular, it stressed the threats posed to a dignified life because of climate change, and required that the right to life be read in light of international environmental law (paragraph 62).

While countries such as South Africa and Kenya have opted to include justiciable rights to housing, healthcare and education within the text of their constitutions, other constitutional texts distinguish between enforceable rights and non-enforceable programmatic obligations. These jurisdictions can draw upon the interpretive approach of the Indian Supreme Court in Francis Coralie Mullin and Olga Tellis, to recognise a wide variety of rights through a broad interpretation of justiciable rights, recognising the interdependence between different rights.

For example, the Ghanaian Constitution recognises both rights and directive principles of state policy. Although courts have recognised that the directive principles are presumed to be justiciable, they are yet to enforce these. For example, when confronted with a case concerning eviction of informal settlements, courts refused to recognise a justiciable right to shelter and housing through a wide reading of the right to life. The comparative case of Olga Tellis is relevant to aid Ghanaian courts in imagining alternate interpretive possibilities.

The Namibian Constitution also contains both Fundamental Rights and Principles of State Policy. The PSPs have been read with Fundamental Rights to interpret these rights widely. Ndeunyema argues in favour of such an interpretative approach, aided with the principle of ubuntu underlying the Constitution, to emphasise the interconnectedness of rights. Ndeunyema also draws on comparative perspectives from India in support of this approach, and indicates that a variety of rights ought to be recognised through a wide interpretation of a right to a dignified life, including access to water.

The landmark case of Olga Tellis, then, has much to contribute to international and comparative human rights law, to emphasise the interconnectedness of different rights, and to enable a wide interpretation of ‘life’ to incorporate elements necessary for a dignified life.

Constitutional Critiques and Possibilities

It is important to acknowledge that Olga Tellis has been critiqued in India on three fronts. First, for not going far enough in the kinds of obligations placed on the state. The Supreme Court recognised two entitlements as forming part of the right to shelter in Olga Tellis: the need for notice and hearing prior to evictions, and the obligation to provide alternate accommodation to those facing evictions under existing schemes set up by the state. These are criticised as inadequate, because many residents face homelessness when they do not qualify for alternate accommodation within existing schemes. Second, it is argued that judicial doctrine does not capture the harms being wrought through judicial process in public interest litigation cases, wherein large-scale evictions have been ordered by courts through interim orders rather than final judgements, sometimes using the limitations in Olga Tellis, and other times in violation of the requirements of Olga Tellis. Third, the recognition of different rights through a wide reading of the right to life as a right to a dignified life, is considered unprincipled judicial reasoning that enables the courts untrammelled discretion on issues it may lack competence and democratic legitimacy.

I have greater sympathy for the former critiques rather than the latter, and indicate in my PhD how and why courts ought to recognise stronger entitlements as forming part of the right to adequate shelter as part of the right to a dignified life under Article 21 of the Indian Constitution. In any case, Francis Coralie Mullin and Olga Tellis opened up doctrinal possibilities by recognising the interdependence and interconnectedness of different rights. There remains much scope to develop these connections between rights both under Indian constitutional law, and in comparative and international jurisdictions.

Rishika Sahgal is a DPhil candidate in Law at the University of Oxford and Visiting Lecturer in Public Law at the University of Birmingham

Suggested citation: Rishika Sahgal, ‘Olga Tellis v Bombay Municipal Corporation: the Supreme Court of India and the interconnectedness of rights’, IACL-AIDC Blog (16 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/17/olga-tellis-v-bombay-municipal-corporation-the-supreme-court-of-india-the-right-to-housing-and-the-interconnectedness-of-rights.