Demolition Drives & Rule of Law

In News

• Recent demolition drives in the aftermath of the Prophet remarks row may challenge certain basic tenets of law.

Key Points

• Current issue: 
  • Justice Gowda is one of the 12 signatories of a letter urging the Supreme Court to take suo motu cognisance of the demolitions in Uttar Pradesh. 
• Tenets of Laws include:
  • The right of a person to be heard first, and 
  • That the state can deprive a person of his or her property only after following due procedure and under the authority of a valid law as mandated under Article 300A of the Constitution.
• Supreme Court’s stand: The right to property under Article 300A is a human right.
• High Court’s stand: Article 300A is a potent right. Demolitions were a product of the politicisation of the bureaucracy. Acts like demolition were a nuclear button held against problem creators.
• A plea by Jamiat Ulama-i-Hind in the Supreme Court contended that the demolition of properties carried out by the Uttar Pradesh government in retaliation was in breach of the laws enacted by the state legislature itself. 
  • It referred to Section 10 of the Uttar Pradesh (Regulation of Building Operations) Act of 1958 which mandates that a building should not be demolished without giving the affected parties “a reasonable opportunity of being heard”. 
  • Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 requires the affected person to be heard and given 15 days’ prior notice before proceeding with the demolition. 
  • Besides this, the Act allows a person aggrieved with the order of demolition to appeal within 30 days.

Concerns

• Demolitions in U.P. are antithetical not only to Article 300A, but to the spirit of the Constitution as a whole. 
• It infringes the victim’s fundamental rights for equality under Article 14, freedoms under Article 19, and the right for dignified life under Article 21 of the Constitution. 
• Razing down buildings without giving affected persons prior notice or hearing them first is violation of the rule of law. 
• Rule of law is a basic feature of the Constitution.

Image Courtesy: RoL 

Rule of Law

• About:
  • It is the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a non arbitrary form of government, and more generally prevents the arbitrary use of power.
  • Arbitrariness is typical of various forms of despotism, absolutism, authoritarianism, and totalitarianism. 
  • Ideas about the rule of law have been central to political and legal thought since at least the 4th century BCE, when Aristotle distinguished “the rule of law” from “that of any individual.” 
  • In the 18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since profoundly influenced Western liberal thought.
• Rule of Law in India:
  • The propounder of modern ‘rule of law’, A.V. Dicey believed that there were two principles which were inherent in the uncodified British constitution:
    • Sovereignty or supremacy of Parliament. 
    • Rule of law. 
  • Dicey therefore saw the rule of law as a constraint (although not ultimate control) of the theoretically unlimited power of the state over the individual.
  • For Dicey the rule of law had three core features: 
    • No person should be punished but for a breach of the law, which should be certain and prospective, so as to guide peoples’ actions and transactions and not to permit them to be punished retrospectively. Discretionary power would lead to arbitrariness. 
    • No person should be above the law and that all classes should be equally subjected to the law. 
    • The rule of law should emanate not from any written constitution but from the “common law”
  • However the third feature was not made possible in India by adopting a substantially foreign made Constitution. 
  • In this regard not only India, many countries adopted a constitution not based on their indigenous legal system but on the basis of western ideals of the 19th and 20th century. 
  • The totality of three principles i.e:
    • Supremacy of Law
    • Equality before law and equal protection of Law
    • Predominance of Legal spirit or there is no Higher Law other than the Rights of individual as determined by the Courts
    • These are the three components of ‘Rule of Law in narrow sense’ or ‘Thin notion of Rule of Law’.

Way Ahead

• Mere executive fiats cannot be used to take away a person’s property. 
• While it is inherent for a sovereign state to exercise its power of eminent domain over private property, the deprivation of the property should be for a public purpose and was subject to judicial review.

Source: TH