COMMENT: IN RE: DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES BY - JARIN JOSEPH
COMMENT: IN
RE: DIRECTIONS IN THE MATTER OF DEMOLITION OF STRUCTURES
AUTHORED
BY - JARIN
JOSEPH
Abstract
The concept of the
separation of powers, although not strictly implemented, has been incorporated
into the Constitution of India. Our system operates on checks and balances to
prevent the arbitrary exercise of power by the government. In light of this, the
Supreme Court, in various decisions, has emphasized the significance of the
rule of law and its importance within our system. In Re: Directions in the
matter of demolition of structures is a recent case that raised concerns
about the arbitrary exercise of power by the executive, particularly in
demolishing residential and commercial structures belonging to various
citizens. This paper seeks to examine the question posed by this case: whether
the properties of individuals accused or even convicted of crimes can be
demolished without following due process of law. Furthermore, the paper
analyzes the court’s view on the rule of law, the doctrine of separation of
powers, and its interpretation of Article 21 to include the Right to Shelter.
Through this analysis, the paper aims to highlight the correctness of the
decision made by the Supreme Court.
Introduction
The underlying principle
of separation of power is that the organs should not overlap with each other. The
doctrine even if not strictly incorporated into the constitution has a
significance in our system. In the present case, where a specific structure was
abruptly selected for demolition while other similar structures in the same
vicinity remain untouched it calls for malafide intention rather than the
argument of breach of local municipal laws.
Facts
and issues
Petitioners approached the
Supreme Court by way of a writ petition, whose residential and commercial
properties were demolished by the state machineries without following the due
process of law on account of them being involved as accused in criminal
offences. Seeking directions against the state officials involved in the
illegal demolition and also directing them that no precipitative action be
taken in respect of residential or commercial properties of any accused in any
criminal proceedings.
Considering the limited
scope of the petitions the court identified the question to be addressed in the
present case as whether the properties of the persons, who are accused of
committing certain crimes or for that matter even convicted for commission of
criminal offences, can be demolished without following the due process of law
or not?
Constitution
vs. Arbitrary exercise of power
The Supreme Court delved
into the principle of the rule of law, which forms the very foundation of
democratic governance. To begin with, A.V. Dicey's conceptualization of the
rule of law asserts that no one is above the law and that everyone is equal before
it. The law must be just and fair, protecting human dignity, and most
importantly, the rule of law must prevent the abuse of power. According to the
constitutional framework, courts are the sole independent adjudicators of the
rights of the people. Through the processes enshrined in constitutional law,
criminal law, and procedure, it can be said that these are facets of the rule
of law that regulate the exercise of executive power.
The Indian Constitution
does not endorse a rigid separation of powers; however, it maintains that any
disruption of the delicate balance between the three branches of government
would undermine the fundamental principles of the democratic system to which we
are committed. In the case of Rai Sahib Ram
Jawaya Kapur and others v. State of Punjab[1],
the court observed that “the functions of the different parts
or branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the State, of functions that
essentially belong to another.”[2] The question that arose
in the matter was, whether state government officers assume the adjudicatory
function and impose the punishment of property demolition on a person without
them undergoing a trial? Such a situation is totally impermissible in the
constitutional setup as executive can never replace the judiciary in carrying
out its core functions. When executive encroaches upon the functions of
judiciary acting against the public it is breach of public trust. The
well-established precepts of public trust and public accountability are fully
applicable to the functions which emerge from the public servants or even the
persons holding public office[3].
If the executive arbitrarily demolishes citizens' homes solely because they are
accused of a crime, it goes against the principles of the 'rule of law.' When
the executive assumes the role of a judge and imposes the penalty of demolition
on a citizen merely due to the accusation, it breaches the principle of
'separation of powers.' We believe that in such cases, public officials who
take the law into their own hands should be held accountable for their overbearing
actions.
The rights of citizens
guaranteed under the constitution have been given no consideration by the
authorities while taking such extreme measures. Even an accused, undertrial, or
convicts, have certain rights, as any other citizen in the constitution. This
court has previously protected the rights of the prisoners Sunil
Batra (I) v. Delhi Administration and others[4] wherein
it was highlighted Article 21 protects the prisoners against several inflictions. The
position taken by the court was that even the accused/convicts have rights which
cannot be violated by the arbitrary exercise of power by the state or if so,
compensation is a form of remedy.
The demolition of the
properties by the state machinery does not only affect the accused but also any
member of the family residing in the premises at the moment. The question posed
by the court was can the relatives be penalized by demolishing the property
without them being involved in any crime? The act of punishing of such persons
who have no connecting with the crime is a violation of the right to life under
the constitution. Right to shelter is one of the facets of Article 21 and
depriving the basic right is unconstitutional.
It is a well-established
principle of criminal jurisprudence in our country that a person is presumed
innocent until proven guilty. The court opined that, permitting the demolition
of a house where several individuals or families reside, solely because one
person living there is either an accused or convicted in a crime, would amount
to inflicting collective punishment on the entire family or families living in
the structure. Therefore, such an action would be incompatible with our
constitutional framework and criminal jurisprudence.
Conclusion
A reformative decision to prevent
the arbitrary exercise of power by the executive as it is very often found exercising extra judicial
powers. The court has rightly pointed the significance and importance of the
principles of rule of law, separation of powers, public trust in our democratic
system. The directions given by the court has been finalized by taking into
account the recommendations given by the counsels and the S.G.