Case Comment and Jurisprudential Application
Olga Tellis v. Bombay Municipal Corporation 1985 SCC (3) 545
The facts of the case are as follows:
• The flock of people who lives on pavements and slums in the city of Bombay. These people began to start living in these slums which was surrounded by dirt and filth.
• These people are so poor that they hardly made both end of the day.
• Afterwards, people came before the SC to get back their home from which they have been dispose by the Municipal Authority of the city
• According to them the snatching of their home is breach of Article 21.
• “The considerable defense from their side is that they have made these places their homes, as they are near to the place where they work, which in turn provide them the great assistance.”
• Thus it would also violate Article 19 (1) (e) as they would face great difficulties in reaching their place of work.
• “To live a good life or to exercise the right to live they should also have a right to livelihood and without this such exercise is not possible.”
• According to Petitioners, the act which is Bombay Municipal Corporation Act under which such expulsion has been carried out is irrational in essence and inconsistent.
• Therefore these groups of people bought a writ petition and put forth their interest in front of the justice delivery system that they were deprived of their livelihood by the way of eviction notice given to them.
• What is the scope of Right to Life under Article 21 of the Constitution?
• Whether the provisions of Bombay Municipal Corporation Act, 1888 are constitutionally valid?
• The council on the petitioner’s side had contended that the right to life guaranteed by “Article 21 included the right to means of subsistence and that they would be derived of his livelihood if they were expelled from their slums.”
• Further they argued that the method given under “Section 314 of the 1888 Act to eliminate encroachment on the sidewalk is arbitrary” as it does not only attribute for command to withdrawal of the encroachment but in addition to this it provides that the “Municipal Commissioner can assure the encroachment is pull out without notice”.
• Defense has affirm that the footpath inhabitants had confess to the prior court that they never have any privilege to put or build in their cabins on the sidewalk or public road and they would not avert their disfigurement later the schedule date.
• The apex court has given a proportional judgment in this matter. “The Supreme Court interpreted the right to life i.e. Article 21 of the Constitution includes the right to livelihood also.”
• The Supreme Court in adhering to their argument argued on the two points of the law. “According to the apex court the right to life is having is existence due to the right to livelihood and this thing is respected by the court in the present matter.”
• Depriving of one of the “Rights to Life” is same as the depriving one of his “Right to Livelihood”. The reason behind such interpretation was because of the vagueness of Article 21.
• The court has laid down adequate balance equity among the priorities of private right and general right. The court has neither denied the significant of the “impugned act” nor neglected the “individual’s rights” i.e. rights for the enforcement of which the petitioner came before the court.
• “Section 314 of Bombay Municipal Corporation Act, 1888 has the character of an enabling provision and not of a compulsive nature.”
• Therefore the petitioners were asked to move out “after being given one month notice after the monsoon season.”
After analysing the case now we should discuss the concept of jurisprudence theories.
• Sociological School studies the law in terms of immediate needs and requirements of the individuals and other varying social groups. In the functional sense how the law works or what are its effects and social consequences are the key points that underline the basis of Sociological Jurisprudence. They treat the law as an instrument which brings change in the society. This school is concerned with the study of law in relation to society.
• Roscoe Pound has been regarded as an eminent jurist of the Sociological School.
• In the present case, the problem of the society has been discussed i.e. how the people living in the slums are deprived from their houses and their work.
• Due to their deprivation from the houses Fundamental Rights of the people who are living in pavements, slums, footpaths, etc. are violated.
• “Hence in this regard the jurisprudential concept of Social Engineering can also be seen.”
• This concept is propounded by the Roscoe Pound.
• Concept of social engineering can be understand by an example :-
Just as Engineers minimize the friction and waste while dealing with the machinery, similarly jurists or judges ought to enable or resolve conflicts in the society and promote further harmony, progress and reform.
• This method is described as social engineering which is actually operation of law rather than abstract contents.
• Roscoe Pound therefore stresses that coordination and cooperation between jurists, judges and legislators will help them to reach social justice and harmony in the society.
• In this case the judges has clearly balance the decision. And made the proper equilibrium among the priorities of individual’s and societal rights.
• “The concept of Social Engineering can also be seen :– Here the right of life and liberty which is put to question in this case now also includes right to livelihood establishing a wider idea, which has been done by the judiciary itself showing that not only in enforcement but also in conceptualization of these rights judiciary plays an active role.”
Other Jurisprudence School
• Here, the main question arises that why only sociological school has been given much more importance?
• Why other schools of jurisprudence are not applicable?
The answer of above mentioned question is given below:-
1. Historical School – They viewed law as a legacy of the past and a product of each individual community reflecting its traits, customs, special habits which are deeply rooted in its heritage and culture.
Thus, this school does not apply its applications on the societal problems.
2. Analytical School – According to jurist of this school only legislation is the original source of making laws. The analysts of this school give no such concerns to the Interest of the Individuals.
Hence, if we use this school the biased decision would be obtained because only state interest would be taken into consideration and no importance will be given to the interests of the individuals living in the pavement. As while referring to the judgment which has been given in the present case then we can see that both the interests are protected by the Hon’ble Supreme Court.
3. Realist School – This school strength the Sociological School of Jurisprudence and perceives law as the consequence of Social Impact. This school is the combination of Analytical and Sociological Approach.
Hence, we use this school both the approaches of Analytical and Sociological School would have to be applied. And this would lead to more conflicts between the individuals (people residing in slums, pavements) and the state as this school would also give importance to the State’s need by fulfilling the Analytical Approach.
• So, now we can conclude that only the Sociological School Jurisprudential principles are suitable with the judgment because it connects with the principles, facts as well as circumstances of the case. The difference among the Individual’s and General Rights has been evidently rationalised under the shade of “Social Engineering.”
• Ollga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
• https://www.lawctopus.com/academike/jurisprudential-analysis-olga-tellis-ors-v-bombay-municipal-corporation-ors/ (Visited May 18,2020)
• Bombay Municipal Corporation Act, 1888
Author: Umang bhatla,
Delhi Metropolitan Education 3rd Yr. affiliated to GGSIPU