Bombay Pavement Dwellers and Olga Tellis – A Quiet Verdict in Ahmedabad: N. Jayaram

Guest Post by N. Jayaram

After the order in the case of film star Salman Khan over a 2002 hit-and-run case was delivered by Sessions Court Judge D.W. Deshpande on Wednesday, 6 May 2015, there understandably were divided opinions on whether he deserved to be handed five years in jail.

But the rather more shockingly breath-taking comments from some of his friends in the industry and his fans were to do with pavement dwellers, such as the victim Nurullah Mahboob Sharif.

“Kutta rd pe soyega kutte ki maut marega, roads garib ke baap ki nahi hai (If a dog sleeps on the road, he’ll die a dog’s death. Roads are not poor people’s property)…,” singer Abhijeet Bhattacharya tweeted. “Roads are meant for cars and dogs not for people sleeping on them…,” he said, appealing to the film industry to back the star, whose sentence has now been suspended by the High Court.

Designer Farah Khan Ali chipped in with this:  “No one should be sleeping on the road or footpath. It is dangerous to do that just like it is dangerous to cross tracks.” She quite rightly laid the blame on the state: “The govt should be responsible for housing ppl. If no1 was sleeping on d road in any other country Salman wuld not have driven over anybody.”

Perhaps she had read the International Covenant on Economic Social and Cultural Rights, to which India is a state party. Article 11.1 of the Covenant says: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right…”

The Committee on Economic, Social and Cultural Rights, the treaty body monitoring states’ compliance with the Covenant’s provisions issued a General Comment in 1991 setting out specific measures states need to take to ensure adequate accommodation, what “adequacy” implies and how to deal with homelessness.

Bhattacharya, Farah Khan and others questioning the presence of pavement dwellers and advising them not to be there could have benefited from reading one of the most remarkable documents generated nearer home – the remarkable judgement of the Supreme Court of India almost 30 years ago in Olga Tellis and others Vs Bombay Municipal Corporation and others (10 July 1985). Journalist and activist Olga Tellis, the People’s Union for Civil Liberties, Committee for Protection of Democratic Rights and others had challenged the municipal authorities’ move to forcibly evict pavement dwellers.

A pithy summary of Olga Tellis – and importantly – its failure to provide for adequate resettlement is available on this website devoted to Economic, Social and Cultural Rights.

The historical verdict is cited not only in courts around India but in many other Common Law jurisdictions. Moreover, Olga Tellis is studied in law schools around the world and is cited in books and journal articles. During an intensive course on refugee law at the University of Hong Kong in 2006, this writer heard Australian jurist, Professor Penelope Mathew,[1] extol the poetic language that figures in parts of Olga Tellis. And it is worth savouring the words written by Chief Justice Y.V. Chandrachud on behalf of the distinguished five-judge bench:

“The sweep of the right to life conferred by Article 21 (of the Indian constitution guaranteeing the protection of right to life) is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages… So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. (Emphasis added.)

Chief Justice Chandrachud declared 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”.

Abhijeet Bhattacharya has mockingly tweeted: “Mumbai ke road Aur footpath pe sone ka shauk hai ?? (You have a thing for sleeping on Bombay’s road and footpath?) Y not at your village no vehicles to kill u.”

Olga Tellis had addressed that:

“It is a notorious fact of contemporary life in metropolitan cities that no person in his senses would opt to live on a pavement or in a slum, if any other choice were available to him. Anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth.”

The judgement had taken note of some fascinating findings of contemporary social scientists about the contributions pavement dwellers were making to society and their interest in leading peaceful lives in amity with others on the street as well as with affluent folk nearby.

Pavement and slum dwellers give back to the economy far more of a share of their income than the super-rich do. The indigent spend almost all or all of their daily earnings on buying food and for transport and other services. The ‘multiplier effect’ of their incomes on the economy is immense. Not even going into the issue of how much of the incomes of the super-rich is jetted away to Swiss Banks and tax havens, the billionaires can only consume so much of the daily necessities that keep the economy oiled. In Hong Kong, for instance, some of the poorest people renting tiny “cage-homes” pay more per cubic metre than the tycoons do for their palatial flats or houses in one of the prime locations in the city, namely The Peak.

Bhattacharya, Khan et al, might want to ponder a little about the pavement dwellers’ economic worth and the contribution they make to the economy before making dismissive remarks that insults their inherent dignity.

Meanwhile, on the same day that the Indian media was giving saturation coverage of the sentence handed to Salman Khan, was it a mere coincidence that a man named Keshav Joshi had his death sentence for having raped his two-and-a-half-year-old niece and left her to die in 2007 commuted to life imprisonment by the Gujarat High Court?

The surname Joshi, as with Pandit or Shastri, indicates the Brahmin caste. How might India’s media and public have reacted – and on a slow news day – if a Muslim or a Dalit convicted of an identical crime had gotten a commutation? Did the Gujarat High Court choose carefully the day on which it announced commutation for Keshav Joshi?

To be sure, this is not to begrudge Joshi his commutation, which is most welcome, and not only because a person who raped and murdered such a young child must have been suffering deep psychological disturbance. As Judge Jyotsna Yagnik said while pronouncing sentences on Maya Kodnani, Babu Bajrangi and others in the Naroda Patiya case (in connection with the 2002 Gujarat pogrom), the death penalty “undermines human dignity”.

But a question arises as to why large percentages of under-trial detainees, convicted prisoners and those on death row happen to be from among Muslims, Dalits and Other Backward Castes. It took near-superhuman efforts on the part of a large team of lawyers and human rights activists to get the death sentence passed on the Dalit, Surinder Koli – perhaps unfairly convicted in connection with the “Nithari Killings” – commuted to life earlier this year.

The bail and sentence suspension afforded to a Salman Khan is denied to tens of thousands of others who cannot afford decent legal counsel. And a commutation so quietly extended to a Keshav Joshi is often denied to Muslims, Dalits and OBCs. Rather, an almost entirely innocent Kashmiri named Afzal Guru was hanged two years ago to satisfy the “collective conscience of the society”.

[1] Author of Reworking the Relationship Between Asylum and Employment, Routledge, 2012:

( N. Jayaram, is a senior journalist who blogs at https://walkerjay.wordpress.com)

5 thoughts on “Bombay Pavement Dwellers and Olga Tellis – A Quiet Verdict in Ahmedabad: N. Jayaram

  1. Thank you for reminding us of the historical “Olga Tellis” verdict by Chief Justice Y.V. Chandrachud.
    I wonder if today’s Supreme Court would be able to deliver any similar verdict!
    The judgement by Chief Justice Chandrachud is a reflection of the principles laid down by the great British thinker Jeremy Bentham. Bentham’s “Principle of Utilty” incorporates the concept that the true aim of a legislature should be the “greatest happiness of the greatest number” .
    Jeremy Bentham also advocated the separation of church and state, equal rights for women, freedom of expression, the right to divorce, the decriminalising of homosexual acts, the abolition of slavery, the abolition of death penalty, the abolition of physical punishment, including that of children.
    He was also an early advocate of animal rights.
    http://en.wikipedia.org/wiki/Jeremy_Bentham

  2. Vineet

    Seen from the frame of a left-liberal lens the issue at stake and the questions seem pertinent and disturbing. But what if we change the lens for a moment? Let us imagine the spirit of India is composed only and exclusively of hopes and aspirations of upper-caste males. Isn’t it natural for upper-caste males to disenfranchise Dalits, Muslims, Tribals and Women, vehemently contest their claims for equality at every turn and perpetuate their own dominance silently.

    I used to think of Khilnani’s Idea of India as a figment of his imagination but having encountered enough liberal Indians in my life I now grudgingly accept there is some grain of truth in that book. At the same time from Kothari’s thesis on caste I strongly believe Manu Smriti has as much claim on the Idea of India as Khilnani’s.

    Kothari succinctly put it, the urgent task of left-liberal political dispensation was to invent enough traditions of modernity to dispel religious-cultural traditions. They did not effectively put in traditions of modernity instead religious cultural traditions got modernised. The politics didn’t become casteist instead caste became politicised. The need of the hour is to humbly accept Sunil’s idea of India as a thin superstructure with Manu’s idea of India as a thick base.

    Isn’t it really worthless to spend so much energy on every case because nothing significant is going to change. I would be curious to know whether kafila would post this comment as it appears to portray a “vile” imagination of India, which members of Kafila do not espouse at all.

    However my humble request is please, for a moment, view India as a nation of upper-caste males, who have all forms of power imaginable and who lay waste all arguments on equality by the manner in which they run their institutions.

    We do have a choice to raise our voice but we also have a choice to not raise our voice is all I am saying. The cold fact is although people have tried to counter-argue caste for past two thousand years. No one has decisively counter-argued caste in last two thousand years. But should we not raise our voice and bring attention to injustice? comes the question. All my life I have heard so many petitions, walked in so many marches, fought so many battles, that now my soul has slowly shrunk and have become numb. Nothing seems to have an effect anymore. So I wonder whether I could protest in silence…

    I write this on a day when MNREGA money was linked with a project to find saraswati river, plans are to artificially recharge it with water from other rivers, develop water fronts, so as to boost tourism!

    Development of Mythic hindu tourism through synthetic means is how rural employment will now be guaranteed. My left-liberal self grimaced when I read this report and my upper-caste male self sweetly smiled with deep satisfaction. I wondered, do I not really love my country? Do I not want to live in this spiritual land which is really mine and mine alone and produce sons who can serve their holy mother as many of us do?

  3. Dr.J.S.Bandukwala

    The judiciary has come out poorly in its handling of the Salman Khan case. The speed with
    which the High Court acted was shocking. I wish they had given some attention to the lakhs of undertrials who have already spent more time in jail then the maximum sentence time.
    And to top it all, the vulgar comments by Salman’s friends linking the poor to “kutte”.
    Note that the judiciary has suffered badly with the behavior of Justice Sathsivam, who set Amit Shah free. He was appointed Governor within days of his retirement, and now wants the post of National Human Rights Commission. In two years I will not be surprised if Modi pays the final bill for Amit Shah’s release by making Sathasivam the next President.
    What a fall for the demi god status of the judiciary.
    J.S.Bandukwala

  4. I received the following message from a friend who is travelling and says she has poor connectivity:

    “Why do u say that keshav Joshi must have been mentally disturbed for raping his late young niece?

    “You perhaps know that mental instability is often an excuse to explain or even justify rape, sexual abuse/assault/violence. … While we sometimes think it’s the reason, it’s not. I even doubt clinical certification of mental or emotional issues in a rapist. Overturning death penalty is very welcome but it must not be seen as lessening punishment for rape or reducing its severity. Hope u understand…”

    A valid criticism.

    I must confess that I have for long swallowed the popular psychobabble that paedophilia is an incurable disease, as exemplified by the following link:
    http://www.dailymail.co.uk/sciencetech/article-2543933/Paedophilia-IS-illness-An-abnormally-wired-brain-causes-predatory-behaviour-claims-expert.html

    But the following link seems to give the lie to that:
    http://www.huffingtonpost.com/2013/11/01/dsm-pedophilia-mental-disorder-paraphilia_n_4184878.html?ir=India&adsSiteOverride=in

    One lives and learns.

    N. Jayaram

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