BENTHAM

Bentham’s work An Introduction to the Principles of Morals and Legislation (1789), is

considered to be the true basis of the utilitarian philosophy, widely considered as the founding
document of British utilitarianism, and Constitutional Code (1830-41) He believed that “Nature
has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for
them alone to point out what we ought to do as well as to determine what we shall do”.

He believed that one situation is better than another if it involves a greater amount of pleasure
than pain, or a lesser amount of pain than pleasure. The more pleasure there is in the world, the
better, and Bentham did not care how this pleasure is produced. Along with this idea of pleasure
and pain as sovereign masters Bentham introduced what he called the principle of utility. This
principle is based on the fact that “every action should be judged right or wrong according to
how far it tends to promote or damage the happiness of the community” . Basically, the morally
right action should be determined by judging which will maximise total happiness – the greatest
happiness to the greatest number.

Bentham suggested that legislators and individuals involved in government should weigh the
pleasure that certain actions would bring to all affected by them before making a decision. He
had six criteria for evaluating the pleasure-pain relationships of an action in a method termed the
felicific’ or hedonic’ calculus: intensity, duration, certainty, propinquity, fecundity and purity In
short, Bentham’s belief was that all individuals should pursue their individual happiness on the
condition it does not undermine the happiness of the community. The criticism to this theory lies
in the fact that Bentham’s simplistic view does not fully comprehend the diversity of human
emotion and the effects it has on moral judgements.

MILL

John Stuart Mill resonates with Bentham on many aspects but differentiated himself to form a
more sensitive version of utiltarianism. Mill argued that “Pleasure is the only thing desired;
therefore pleasure is the only thing desirable”. However, He believed that there were different
sorts of pleasure: higher and lower, with higher being more desirable than lower pleasures.
Bentham’s, and others’, simplistic forms of utilitarianism put all pleasures on an equal level, and
are criticised because they ignore the subtleties of human existence. Unlike them ,Mill’s idea
and theory of differing levels of pleasures meet this criticism and he believes that “it is better to
be a dissatisfied human being than a satisfied pig; and it is better to be a dissatisfied Socrates
than a satisfied fool”. He defines higher pleasures as intellectual pleasures such as learning, and
lower pleasures as physical, or sensual, pleasures, the desires that human beings share with
animals.

Mill believes that intellectual pleasures are more valuable and argues that ,it is an
unquestionable fact that those who are equally capable of appreciating and enjoying both give
preference to the intellectual pleasure that satisfies their higher faculties. However he says that
human beings come to enjoy inferior pleasures precisely because they can no longer enjoy the
higher pleasures or because they do not have the access to them. He believes that the purpose of
all human life is to pursue happiness through higher pleasures and avoid pain and that everything
else that is desirable is a means to these ends.

Further, Mill was more sensitive to than Bentham was that of individual moral rights. Bentham
believed that the only real’ rights a person had were legal rights and that individual moral rights
conflicted with happiness and excellence, Mill, on the other hand, thought that individual moral
rights are a necessary means to maximise the happiness of a community. Mill claims that rights
are the most basic utilities fundamental for human welfare because human culture cannot prosper
if there is no protection for individual rights. As a result, rights are essential to the utility
principle, as they must be uphold and preserved for sentient beings to take pleasure in anything
else. As a result of his willingness to distinguish in value between different types of pleasure, and
his view that the pleasures of the intellect are the most valuable, Mill has been called an
“eudemonistic” utilitarian.

OLGA TELLIS V. BOMBAY MUNICIPAL CORPORATION

BRIEF FACTS OF THE CASE;

The writ petitions were filed by the slum dwellers and pavement dwellers of bombay before the
Supreme Court of India. This class of people constituted nearly half the population of the city of
Bombay. The respondents - State of Maharashtra and Bombay Municipal Corporation took a
decision that all pavement dwellers and the slum dwellers in the city of Bombay will be evicted
forcibly and deported to their respective places of origin or removed to places outside the city of
Bombay according to section 314 of the Bombay Municipal Corporation Act, 1888. Pursuing
the same, the pavement dwellings of some of the petitioners were in fact demolished by the
Bombay Municipal Corporation. The petitioners challenged the order of the Bombay Municipal
Corporation of eviction as being unreasonable and unjust without providing with alternative
living facility. The petitioners claimed right to livelihood as a part of their right under Article 21
of the Constitution that is right to life under Article 32. Moreover, petitioners contended that
sections 312, 313 and 314 of the Bombay Municipal Corporation Act are invalid as violating
Articles 14, 19 and 21.

Issues Considered by the Apex Court

1. That the order for the eviction of the pavement is the infringement of their right to livelihood
and in turn the encroachment over their right guaranteed under article 21 of the Constitution.
2. That the impugned action of the State Government and the Bombay Municipal Corporation is
violative of the provisions contained in Article 19(1) (3), 19(1) (g) and 21 of the Constitution.
3. That the procedure prescribed by section 314 of the Bombay Municipal Corporation Act, 1888
for the removal of encroachments from pavements is arbitrary and unreasonable.
Decision of Supreme Court
The Hon'ble Supreme Court held that Although, the eviction orders were held to be valid under
article 14 and 19 of the Constitution,the slum dwellers must get the alternative shelter if they are
evicted from the pavements .The decision of the Supreme Court in this case was based on the
humanitarian and moral approach of the judges . Infact, the Apex Court stepped into the activist
role. Also,the right to life was once again enlarged to engulf the right to livelihood as being a
part of liberty of an individual. The decision of the Court also focused on the concept of the
welfare state and reliance though not expressly but impliedly was placed on the Directive
Principles of the State Policies under the Constitution

BENTHAMITE UTILITARIAN VIEW ON THE JUDGEMENT

Benthams universal ethical principle ; i.e.,’the greatest happiness of the greatest number’
principle, states that the pleasure and the pain of the society are to be weighed on the same plane
and only those actions which promote the pleasure or reduce the pain or simultaneously achieve
both should be done being inherently good and hence moral in nature. By happiness of the
community Bentham meant simply the aggregate of individual surpluses of pleasure over pain.

In this case , the pleasure of the society as a whole ( the residents of Bombay ) was upheld by
upholding the eviction of the petitioners to enable the concerned authority to proceed with
developemental activities . Simultaneously, the pain of another section of the society (slum
dwellers) was brought down by guiding for the provision of altenative housing facilities for them
to ensure their right ti life. Therefore, the test greatest aggregate happiness for the greatest
number is fulfilled .Hence the judgement strictly comply’s with the benthamite utilitarian
philosophy.
In the present case ,the petitioners who are the pavement dwellers and the slum dwellers form
almost half the population of the city. The fact of doing justice to such a large number of
pavement dwellers in question caused the decision to fall in their favour. Hence , due recognition
is given to the fact that the number of the pavement dwellers was huge and it constituted almost
half of the city's population. This is clearly evident as the Hon'ble Supreme Court in its
judgement has clearly stated that the reliance was placed on the "destiny of millions of fellow
creatures". It signifies compliance of the outcome of the judgment of Olga Tellis ,with the
Bentham’s principle of utility which emphasizes on maximum happiness to maximum number
of people.

Further, according to the Benthamite principle of utility The four commands of utility for civic
society in the Bentham's Utilitarianism, upon which the aggregate happiness depends are
security, subsistence, abundance and equality. Out of the above, security was the most important.
Subsistence, abundance and equality, however, all dependent, on the paramount directive of
security. For him, their provision is important for the sake of ggregate happiness and aggregate
happiness only.With reference to this point , judgement once again complies with the benthamite
view as the court established that the petitioners if evicted should be provided with alternative
facilities of shelter and livelihood because once they are deprived deprived of their livelihood
and shelter they would be further deprived of their sence of “security” and sense of
“subsistence”, which is violative of their right to life. Hence , the Supreme Court s emphasis on
the importance of providing the petitioners with such security which will inturn increase their
happiness and hene enhances their pleasure of living complies with benthams utilitarian
principle.

To conclude, Then Bentham's principle of utility becomes the principle that we are always to act
in such a way as to give as many people as possible as much as possible of whatever it is that
they want. I think that the interpretation in Olga Tellis preserves the essence of Bentham's
doctrine the whole Benthamite principle can be viewed in one sentence stated in Para 46 of the
judgment, Human compassion (happiness) must soften the rough edges of justice in all
situations. Thus, it can be concluded the Supreme Court s judgement satisfies or complies with
the benthams Utilitarian Principle of maximm happiness to the maximum people.

J.S. MILLS utilitarian principle applied to the judgement

Though mill would also agree with the judgment of the supreme court in the olga tellis case the
reason for the same would not simply be the happiness and immediate pleasure the decision
gives to the petitioners , as in case of Bentham . To him the judgement would be right not only
because of the reason it gives pleasure but also for the reason of it being based on humanistic and
moral approach. Mill justified the utilitarian principle as the foundation of morals. his principle
says actions are right in proportion as they tend to promote overall human happiness. So, Mill
focuses on consequences of actions and not on rights nor ethical sentiments.in th present case.
He would point out that in the present case thee courts decision is right not because the eviction
and the provision of alternative shelter while simultaneously promoting pleasure to the residents
of bombay ( as it enables development ) , also eliminates the pain of the landless ( provides them
with security), infact for him the moral aspect that by enabling such a provision of alternative
shelter and livelihood which would not only give pleasure to the petitioners but would also
pleasure the rest of theresidents of the city. This pleasure for him would be the moral
satisfaction of the cognitive faculties of mankin. In other words for him, when the landless
people are given with thebasic aminitis of life, the provision of the same gives intellectual
peasure or higher pleasure of satisfaction which is obtainedd by doing a moral deed ( the act
according to mill would be oral as it protects the individual rights which for him form the
utilitarian basis).
Further , Mill unlike bentham emphasises the importane of individual rights . to a great extent the
judgement also emphaises the same . Mill says, when we see a social practice or a type of action
as unjust, we see that the moral rights of persons were harmed .He sees the moral rights as the
basic utilitities as they are concerned with the basic conditions of a good life. He hence
focuses .on the provision of these rights as they are the basic utilities that give pleasure to
oneself. Also, according to him moral rights enable self-preservation – this is the reason why
their harm calls forth such intense emotional reactions. Hence , we are not only upset by
injustices when we personally suffer, but also when the elemental rights of others are harmed.
This motivates us to judge the suffering of others as unjust and claim for their justice on their
behalf. It is a moral instinct ,the satisfaction of which gives a qualitative pleasure. Hence for him
the society is morally required to guard them either through the compulsion of law, education or
the pressure of public. In fact the courts decision expressly relies on the same principle. It has
greatly emphasized on the moral rights in general and legal rights of the petitioners in specific.
The importance of their aspiration to live a life of greater dignity is recognized and the orders for
the provision of the same have been given( provision of alternative facilities for shelter an
livelihood). According to Mill, the provision of the the moral rights should be the the systematic
core of the judgments of justice. Hence the judgement complies with the moral basis of the
utilitarian principle; proposed by Mill.

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