The essential purposes of the rule of law are to prevent the abuse of power, protect the human rights and dignity of all members of society, and ensure that government actions are governed by established legal principles rather than arbitrary discretion. It serves as a safeguard against the arbitrary use of state power and is integral to democracy and good governance. Additionally, it provides a framework for predictability and stability in the legal system.
Summary of Legal Principles and Rights
- The concept of 'rule of law' emphasizes that all individuals, including government officials, must adhere to the law.
- Mechanisms must exist to enforce legal rules and protect human rights.
- Accused individuals retain rights to dignity and humane treatment, as established in legal precedents.
- Demolition of properties must follow due process, ensuring fair notice and opportunity for legal recourse.
- Public accountability and transparency are essential in state actions, preventing abuse of power by officials.
Sending a strong message against the trend of "bulldozer justice", the Supreme Court on Wednesday (November 13) held that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted in a crime.
Permitting such action by the executive is contrary to the rule of law and also a violation of the principle of separation of powers, as it is for the judiciary to pronounce on the guilt of a person.
"The executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is not permissible. The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.
The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where “might was right”. In our constitution, which rests on the foundation of 'the rule of law', such high-handed and arbitrary actions have no place. Such excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law," the Court pronounced.
The Court emphasised that house demolition cannot be an action against a person convicted of an offence:
"Such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law.
Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law."
Officials taking part in illegal demolition to be held accountable
The Court also held that the public officials who demolish the properties in such a manner should be held accountable.
"Public officials who take law in their hands and act in such a high-handed manner must be fastened with accountability..." the Court observed while highlighting the importance of restitution.
The Court also observed that such actions amount to imposing "collective punishment" on the family of the accused/convict. Further, when properties are selectively demolished, there is a presumption that it was a malafide action.
"When a particular structure is chosen for demolition all of a sudden, and the rest of similar properties are not touched, the presumption could be that the real motive was not the illegal structure but the action of penalising without trial," the Court observed.
A bench of Justices BR Gavai and KV Viswanathan pronounced the judgment in a batch of petitions filed by Jamiat Ulema-i-Hind and various other petitioners seeking directions to stop the trend of "bulldozer justice".
Directions laid down by the Court
The Court issued a set of steps to be followed before demolition.
Even after the orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before the appropriate forum.
Even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to vacate.
"It is not a happy sight to see women, children and aged persons dragged to the street overnight. Heavens will not fall on the authorities if they hold their hands for some period," the Court observed.
The Court clarified that that these directions will not be applicable if there is any unauthorised structure in any public place such as a road, street, footpath, abutting railway lines or any river body or water body and also in cases where there is an order passed by a Court of law.
Prior show-cause notice
No demolition should be carried out without prior show cause notice returnable either in accordance with the time provided in the local municipal laws or within 15 days time from the date of service, whichever is later.
The notice shall be served upon the owner by registered post. It shall also be affixed on the outer portion of the structure. The time of 15 days will start from the receipt of the said notice.
To prevent any allegations of ante-dating, the Court directed that as soon as notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate digitally by email and auto-generated reply acknowledging the receipt of the mail should also be issued by the office of the Collector/DM.
The DM shall designate a nodal officer and assign an email address and communicate the same to all officials in charge of building regulations within one month from today.
Notice shall contain the nature of the unauthorized construction, details of specific violations and grounds of demolition. Notice should also specify the date for personal hearing and the designated authority.
Every municipal authority should assign a designated digital portal within three months from the date of the judgment wherein details regarding service, pasting of notice, reply, show-cause notice, and order passed are available.
Personal hearing and final order
The designated authority shall allow a personal hearing to the party. The minutes of such a hearing shall be recorded. The final order of authority shall contain contentions of notice, the authority's findings and reasons, whether the unauthorised construction is compoundable, and whether the whole construction is to be demolished. The order should specify why the extreme step of demolition is the only option available.
Judicial scrutiny of the final order
Suppose the statute provides for an appellate authority and time for filing the appeal, even if it does not do so. In that case, the demolition order will not be implemented for 15 days from the receipt thereof. The order shall also be displayed on the digital portal.
An opportunity should be given to the owner to remove the unauthorised construction. Only after the expiry of 15 days and the owner/occupier has not removed the unauthorised construction or if the order has not been stayed by the appellate authority, the concerned authority shall take steps to demolish the same.
Demolition steps
Only that part of unauthorised construction, which is not compoundable, can be demolished.
Before demolition, a detailed inspection report must be prepared by the authority.
The proceedings of demolition shall be videographed and preserved. The demolition report, with the list of police and civil personnel who participated in the process, should be forwarded to the Municipal Commissioner and displayed in the digital portal.
Violating the directions would lead to the initiation of contempt proceedings and prosecution.
If the demolition is found to violate the court's orders, the officers responsible will be held liable for restitution of the demolished property at their personal cost in addition to payment of damages.
The copy of the judgment was directed to be circulated to the Chief Secretaries of all States/UTs and Registrar Generals of all High Courts. All State Governments shall issue circulars intimating the authorities about this judgment.
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