THE FRIGHTFUL dimensions of urban slum and squatter
colonies are one of the most perplexing problems of contemporary
public policy. The official status quo on this issue is presently
defined by the Supreme Court Judgment in Olga Tellis v. Bombay Municipal
Corporation. In this case the court voiced its concern over a multiplicity
of moral issues, and sought to impose some sort of balance between
conflicting ethical claims. In doing so, it had recourse, implicitly
or explicitly, to a variety of ethical arguments.
“Slums”, “squatters”, “ghettos”,
“shanty-towns”; each of these words primarily arouse
a sentiment of repugnance conditioned by our reactions to the
degraded physical conditions prevailing in the decrepit settlements
of the urban poor. For instance, “slum” has been defined
A street or area which is in an unsanitary, dirty, dilapidated,
and neglected condition, inhabited by the poorest and most thriftless
of the population, and usually greatly overcrowded; a low dirty
court, back alley...the slums, area in a town or city covered
with squalid housing of the poorest kind.
Even the following definition of "slum" given by the
United Nations carries similar connotations:
[A] building, group of buildings, or area characterized by overcrowding,
deterioration, unsanitary conditions or absence of facilities
or amenities which, because of these conditions or any of them,
endanger the health, safety or morals of the inhabitants of the
A consequence of this attitude of revulsion is that there has
been great enthusiasm for slum clearance, and other haphazard
attempts to tackle particular evils, with little or no attention
being paid to the forces that determine the development of cities.
In the process, many of the policies intended to combat particular
evils have, (i) actually made them worse, or, perhaps more dangerous;
and (ii) increasingly placed power of direct control by the authority
over the private life of the individual without in any way addressing
or improving the ills they set out to address.
It is these powers that the Bombay Municipal Corporation sought
to defend in Olga Tellis. It observed :
[N]o person has any legal right to encroach upon or to construct
any structure on a foot path, public street, or any other place
over which the public has right of way.
Numerous hazards of health and safety arise if action is not
taken to remove such encroachments. Since, no civic amenities
can be provided on the pavements, the pavement dwellers use pavements
or adjoining streets for easing themselves. Apart from this, some
of the pavement dwellers indulge in anti-social acts like chain-snatching,
illicit distillation of liquor and prostitution. The lack of proper
environment leads to increased criminal tendencies, resulting
in more crime in the cities…
Throughout the arguments, the central question regarding the
causes of the existence of these slum and squatter settlements
is entirely neglected. Further, the observations relating to heightened
levels of crime and immorality are not supported by any empirical
studies. And, what is more, the sheer futility of demolitions
and slum clearance is ignored.
By and large, the five-member Bench rejected the ratio of the
Maharashtra Government's arguments, and attempted to go much deeper
into the issue. Nonetheless, despite their intentions, their ideas
could not escape the mould that language had forged. Ethical ambiguity
and conflict characterise much of the judgment. While the Court
at one point accepts that “the charge made by the State
Government in its affidavit that slum and pavement dwellers exhibit
especial criminal tendencies is unfounded,” Chandrachud,
C.J., nevertheless chose to preface the judgment with an image
that emphasises only notions of physical and moral degradation
that slums represent in the general conception.
Those who have made pavements their homes exist in the midst of
filth and squalor, which has to be seen to be believed. Rabid
dogs in search of stinking meat and cats in search of hungry rats
keep them company. They cook and sleep where they ease, for no
conveniences are available to them. Their daughters come of age,
bathe under the nosy gaze of passers-by, unmindful of the feminine
sense of bashfulness. The cooking and washing over, women pick
lice from each other's hair. The boys beg. Menfolk, without occupation,
snatch chains with the connivance of the defenders of law and
order; when caught, if at all, they say: "Who doesn't commit
crimes in this city?” It is these men and women who have
come to this Court to ask for a judgment that they cannot be evicted
from their squalid shelters without being offered alternative
accommodation. They rely for their rights on Article 21 of the
Constitution which guarantees that no person shall be deprived
of his life except according to procedure established by law.
They do not contend that they have a right to live on the pavements.
Their contention is that they have a right to live, a right which
cannot be exercised without the means of livelihood.
Despite a flood of humanitarian rhetoric, the substantive part
of the judgment reaffirms that the executive's "power of
eviction and demolition... cannot be regarded as unreasonable,
unfair or unjust." The Court concedes that "eviction
from pavements and slums will lead to deprivation of... livelihood
and consequently to the deprivation of life", but regards
the situation with a sort of static helplessness that makes no
effort to affix responsibility.
Two conclusions emerge from this discussion: one, that the right
to life which is conferred by Article 21 includes the right to
livelihood and two, that it is established that, if the petitioners
are evicted from their dwellings, they will be deprived of their
livelihood. But the Constitution does not put an absolute embargo
on the deprivation of life or personal liberty.
At a single stroke, a vast sea of humanity is relegated, by the
very fact of its existence, into the ranks of chronic law breakers.
They have no ‘legal’ right to whatever shelter they
may have secured. Those who came before, when the pressure on
land was less, and who succeeded in legitimising their titles
(whether they were poor or rich migrants) now collaborate against
the late comers, seeking to keep these 'interlopers' out.
In Olga Tellis, of course, the Supreme Court did give the pavement
dwellers a temporary and qualified reprieve, but left the possibility
of demolition and extradition as a permanent sword of Daemocles
hanging over their heads.
No one has the right to make use of a public property for a private
purpose without the requisite authorisation and, therefore, it
is erroneous to contend that the pavement dwellers have the right
to encroach upon pavement by constructing dwellings thereon. Public
streets, of which pavements form a part, are primarily dedicated
for the purpose of passage and, even the pedestrians have but
the limited right of using pavements for the purpose of passing
and re-passing. So long as a person does not transgress the limited
purpose for which pavements are made, his use thereof is legitimate
and lawful. But, if a person puts any public property to a use
for which it is not intended and is not authorised so to use it,
he becomes a trespasser.
Since then, executive bodies, both in Bombay and metropolii elsewhere,
have repeatedly found fit to exercise their authority, now ratified
by the Court, in randomly demolishing large and small squatter
The judgment of the Supreme Court is obviously characterised
by a great deal of ethical conflict. It is an uncomfortable and
unrealistic balance of two counterpoised sentiments: the slum
and pavement dwellers are regarded, on the one hand, as a nuisance,
and, on the other, recognised simultaneously as objects of pity.
Such a view is absolutely incorrect, and fails completely to,
(i) reflect the productive role of slum and squatter settlements,
and of their populations, in urban development; and (ii) adequately
address the question of the causes that have contributed to the
development of these ‘urban fungi’.
The pattern of reasoning implicit in the Supreme Court Judgment
in Olga Tellis bears striking resemblance to a model articulated
by Hardin. The metaphor of a lifeboat is used by him to argue
that the time may have come to refuse aid in the form of food
to those needy countries which do not accept the responsibility
for limiting their population growth, and to drastically curtail
migration from poor to rich nations.
In his metaphor, each rich nation amounts to a lifeboat full
of comparatively rich people. The poor of the world are in other,
much more crowded lifeboats. Crowding, here, does not refer to
a space/person ratio, but rather to a resources/person ratio.
Continuously, in this model, the poor "fall out" of
their lifeboats and swim for a while in the water outside, hoping
to be admitted to a rich lifeboat, or in some other way to benefit
from the "goodies" on board. The central problem of
the “ethics of a lifeboat” is “what should the
passengers on a rich lifeboat do?”
“The ethical problem,” Hardin observes, “is
the same for all”. He thus traces out his dilemma in a single
Here we sit, say 50 people in a lifeboat. To be generous, let
us assume our boat has a capacity of 10 more, making 60.... The
fifty of us in the lifeboat see hundred others swimming in the
water outside, asking for admission to the boat, or for handouts.
How shall we respond to their calls?
Hardin conceives of three possible responses, and three corresponding
One. We may be tempted to try and live by the Christian ideal
of being “our brother’s keeper,” or by the Marxian
ideal of “from each according to his abilities, to each
according to his needs.” Since the needs of all are the
same we take all the needy into our boat, mating a total of 150
in a boat with a capacity of 60. The boat is swamped, and everyone
drowns. Complete justice, complete catastrophe.
Two. Since the boat has an unused excess capacity of 10, we admit
just 10 more to it. This has the disadvantage of getting rid of
the safety factor, for which action we will sooner or later pay
dearly. Moreover, which 10 do we let in? “First come first
served?” The best 10? How do we discriminate? And what do
we do to the 90 who are excluded?
Three. Admit no more to the boat and preserve the small safety
factor. Survival of the people in the lifeboat is then possible
(though we shall have to be on our guard against boarding parties).
The lifeboat model, we can see, has immense logical force. In
framing the question as one of survival, and arguing purely from
necessity, Hardin succeeds in ridding our approach to the problem
of aid and distress immigration of the sentimentality that usually
By contrast the idealist’s position — that the rich
ought to help the needy, that basic needs of all must be satisfied
well before any other ethical criterion of distributive justice
is brought into play, or that it is morally wrong not to prevent
suffering when it is possible to do so — appear muddle-headed,
sentimental, based on an inadequate understanding of reality and,
for the policy maker, thoroughly impractical.
Hardin’s model of the lifeboat lends itself perfectly to
the ratio underlying Olga Tellis. We may, in applying the model,
conceive of the rural areas as the poorer ‘overcrowded’
lifeboats, and the metropolii as the land of promise, the rich
lifeboats which the poor are trying to swim onto. This corresponds
to the Supreme Court’s perception of the problem of “the
migration of people from the rural to the urban areas” as
“being a reflection of the colossal poverty existing in
the rural areas”. This is a viewpoint that has wide currency
among legal, administrative and town planning experts.
The Supreme Court acknowledges that, (i) this mass of the abjectly
poor has a “right to life” under article 21 of the
Constitution, and that such right is meaningless without a right
to livelihood; and (ii) slum and pavement dwellers choose locations
in the vicinity of their place of work.
The court, nonetheless, saw fit to ratify the executive’s
power of demolition and eviction. The reasons variously given
were that such encroachments for private use “frustrate
the very object” of the public purpose for which they are
In the first place, footpaths or pavements are public properties
which are intended to serve the convenience of the general public.
They are not laid for private use and indeed, their use for a
private purpose frustrates the very object for which they are
carved out from portions of public streets. The main reason for
laying out pavements is to ensure that the pedestrians are able
to go about their daily affairs with a reasonable measure of safety
and security. That facility, which has matured into a right of
the pedestrians, cannot be set at naught by allowing encroachments
to be made on the pavements.
Evidently, the flood of migrants that crowd the slums and pavements
of the metropolii are seen as a burden upon the urban rubric,
and a strain on the “carrying capacity” of the metropolitan
“lifeboat”. Like Hardin, the Supreme Court recognises
the claims of the less fortunate to our sympathy, but not aid.
Once again, as with Hardin, the logic is almost irrefutable;
clearly, if the alternatives are urban chaos, or the eviction
of a segment, no doubt unfortunate, of the burgeoning urban population,
the latter must be the preferred course.
However, even if we admit, be it theoretically, the possibility
of effectively evicting these squatter populations from the urban
lifeboats, there are strong arguments against the morality of
such action. Crucially, the lifeboat ethic, both as articulated
by Hardin, and as discovered in Olga Tellis, is illegitimate,
despite its apparent reasonableness. This is primarily because
the “lifeboat” analogy fails to reflect the reality
of the relationships between rich and poor nations (in Hardin’s
model), even as it fails to reflect the real nature of the relationship
between the urban and rural sectors.
Most significantly, the lifeboat analogy is static. It takes
the poverty of certain nations as given, even as it accepts the
wealth of others. Similarly, in Olga Tellis, the poverty of rural
India is accepted as a fact, and the wealth of the metropolii
is self-evident. The static conception, however, is unfaithful
to the dynamic reality.
In the international context, advocates of the dependency theory
have demonstrated that the rapid economic growth of the First
World could not have occurred without draining out the resources
of the Third World. In the dual economics of today’s developing
nations, the metropolitan centres could not have prospered without
the untrammelled exploitation of resources in the rural hinterland
to its lasting detriment. The industries of the urban conglomeration
have grown at the expense of the rural sector. They have, further,
constantly encroached upon rural resources and appropriated or
degraded them in the process.
The Lifeboat Ethic does not acknowledge the dynamic interface
between the metropolii and the hinterland, or reflect the manner
in which prosperity of the former contributes to and causes (at
least partially) the poverty of the latter. These factors could
be accommodated in another, somewhat similar, albeit crude model.
Since we are at sea, it may be called a ‘raft model’.
Once again, there are several rafts, some crowded and others comfortable
(rich). Crucially, however, all these rafts are constantly changing,
with people on each raft packing out pieces of flotsam from the
sea and tying them onto their rafts. Thus a raft can grow. On
the other hand, pieces can also be detached from a raft, and,
consequently, a raft could just as well shrink.
Now, by virtue of their larger size and strength, the richer,
larger rafts often raid and plunder the smaller, crowded rafts,
progressively enlarging themselves through this process. The larger
rafts may, of course, accommodate an occasional ‘refugee’,
who swims from the poorer rafts, but this model assumes that they
displace many more than they accommodate.
It is contended that such a model would more accurately reflect
the relationship between the metropolii and the rural hinterland.
It also helps highlight the moral issues involved in this relationship,
and in doing so indicates the possibilities of a solution which
would not ‘cancel itself out’ as did the orders of
the Supreme Court in Olga Tellis.
Once we acknowledge the responsibility, be it partial, of the
metropolii for the progressive pauperisation of the countryside,
the basic legal principle of compensation for damages can be applied.
Two measures to implement this principle suggest themselves:
(i) The welfare and housing, at least of migrants to the urban
areas, must be made the responsibility not of government, but
of the private sector employers who, (a) lure workers to the urban
areas; and (b) are indirectly responsible for their displacement
in the first place, since they are collectively responsible for
the decline in the quality of the rural habitat.
(ii) Public policy must increasingly divert funds from the industrial/urban
sector to the rural sector to compensate for the damage done by
the former to the latter. The volume of such funds could be determined
on a cost-benefit analysis of various transactions between the
Evidently, these two measures need to be fleshed out, and eventual
legislation would have to give due attention to detail. However,
recognition of the rural/urban dynamic, of the ethical problem
arising out of it, and of the relevance of the principle of compensation
in this sphere, would be important steps in this direction.