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TMI Blog2024 (11) TMI 1414X X X X Extracts X X X X X X X X Extracts X X X X ..... ility in India would have to be considered as antitheses to the Rule of law apart from being a serious affront to human dignity. The Rule of law has been described as a safeguard against the arbitrary use of the State power. It ensures that the actions of the Government and its authorities are governed by established legal principles, rather than arbitrary discretion. Whenever the citizens in the form of mobs have broken the law to vandalize or to declare threats, the Court has cast an obligation on the State to prevent such threats or assaults. This obligation underscores the State's responsibility to maintain law and order and protect citizens from unlawful actions that undermine the Rule of law itself. The Rule of law provides a framework and value system to 'rein in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively'. Separation of powers - HELD THAT:- This Court can issue a direction to the executive and also formulate guidelines for facilitation and in furtherance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d natural justice - HELD THAT:- The Rule of law, the rights of the citizens guaranteed under the Constitution, and the principles of natural justice would be essential requirements. If a citizen's house is demolished merely because he is an Accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason. Firstly, 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. It is to be noted that even in the cases consisting of imposition of a death sentence, it is always a discretion available to the courts as to whether to award such an ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the time provided by the local municipal laws or within 15 days' time from the date of service of such notice, whichever is later. ii) The designated authority shall give an opportunity of personal hearing to the person concerned. iii) An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Application disposed off. - B.R. GAVAI AND K.V. VISWANATHAN JJ. Counsel for parties Mr. Nachiketa Joshi, Sr. Adv. (A.C) Ms. Karishma Rajput, Adv. Mr. Alabhya Dhamija, Adv. Mr. Shreevardhan Dhoot,Adv. Mr. Tushar Mehta, Solicitor General Mr. K.M. Nataraj, A.S.G. Ms. Garima Prashad, Sr. A.A.G. Ms. Ruchira Goel, AOR Mr. Kanu Agarwal, Adv. Ms. Indira Bhakar, Adv. Mr. Tushar Mehta, Solicitor General Mr. Shiv Mangal Sharma, A.A.G. Mr. Saurabh Rajpal, Adv. Mr. Amogh Bansal, Adv. Ms. Shalini Singh, Adv. Ms. Nidhi Jaswal, AOR Mr. Tushar Mehta, Solicitor General Mr. K M Nataraj, A.S.G. Mr. Kanu Agarwal, Adv. Mr. Rajat Nair, Adv. Mr. Sanjay Kumar Tyagi, Adv. Mr. Amit Sharma B, Adv. Mr. Mayank Pandey, Adv. Mr. Varun Chugh, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Tushar Mehta, Solicitor General Mr. K M Nataraj, A.S.G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICE Paras 63 to 75 VII. RIGHT TO SHELTER Paras 76 to 86 VIII. PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT Para 87 to 89 IX. DIRECTIONS Paras 90 to 99 JUDGMENT B.R. GAVAI, J. अपना घर हो, अपना आंगन हो, इस ख्वाब में हर कोई जीता है। इंसान के दिल की ये चाहत है, कि एक घर का सपना कभी न छूटे। (To have one s own home, one s own courtyard this dream lives in every heart. It s a longing that never fades, to never lose the dream of a home.) This is how the importance of shelter has been described by a famous Hindi poet Pradeep . It is a dream of every person, every family to have a shelter above their heads. A house is an embodiment of the collective hopes of a family or individuals stability and security. An importa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it. 5. We propose to lay down certain guidelines on Pan-India Basis so that the concerns with regard to the issues raised are taken care of. 6. We find that it will be appropriate that the learned counsel for the parties give their suggestions so that the Court can frame appropriate guidelines, which will be applicable on Pan-India Basis . 7. We request all the parties to also supply a copy of their suggestions to Shri Nachiketa Joshi, learned Additional Advocate General for the State of Madhya Pradesh, on his Email ID which is [email protected], who is requested to collate the same. 8. List on 17.09.2024. 6. Vide order dated 17th September 2024, we directed that, there shall be no demolition anywhere across the country without seeking leave of this Court . However, we clarified that, our order would not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law . 7. Thereafter, we heard the matter at length on 1st October 2024. 8. We have heard Shri Abhishek Manu Singhvi, Shri M.R. Sham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spicuous part of the property proposed for demolition. UPLOADING NOTICE ON THE WEBSITE: Copy of notice and service report should also be uploaded on the website of the municipal corporation or concerned authority. TIME TO FILE REPLY: M inimum 2 monthstime REPLY TO SHOW CAUSE NOTICE : The owner shall file its reply to the show cause notice within the time prescribed, along with relevant supporting material. A receiving or acknowledgment of the reply should be provided to the owner. Ms. Nitya Ramakrishnan, Sr. Adv. Issuance of Show Cause Notice: If the authority believes an unauthorized building/development exists, a show cause notice must be served to both the owner and occupier before any action is taken. The notice must also be pasted on the property and published in three newspapers with over one lakh circulation one each in Hindi, English, and a third language designated by the state. The newspaper notice only needs to include the owner's and occupier's names, property address, and a link to a website with the full notice and timestamp. Content of the Notice: The notice must specify the legal provisions under which it is issued, the violations identified, and the specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Personal Hearing: The authority will issue an intimation to the owner specifying the date and time for a personal hearing. The personal hearing for the occupier will not replace the need for a hearing with the owner or authorized representative. Ms. Nitya Ramakrishnan, Sr. Adv. The person(s) in response to the notice shall have the following rights: 1. The concerned person in receipt of the above-mentioned Notice shall have the right to engage an Advocate/Counsel and may also be allowed to appear in- person. 2. To present evidence that the construction is legal. 3. The opportunity to compound the offence, that is, to make modifications to comply with the regulations. 3. PROPOSED ACTION SHOULD BE PROPORTIONAL TO THE VIOLATION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. The authority shall in the meanwhile also consider the nature and extent of unauthorized construction, if the unauthorized construction can be regularized or compounded on payment of fee/penalty under applicable law. If yes, then the owner shall be intimated of such avenue and provided some reasonable time, not being less than 4 weeks, to avail the option. In case the breaches are technical and inconsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No demolition shall extend beyond the portion deemed illegal. Any excess demolition will require compensation as per Part C of these guidelines. Special Permission for Demolitio n: If the owner or occupier is not found, special permission from the Nodal officer is required before proceeding with the demolition. Mr. M.R. Shamshad, Sr. Adv. Survey of the Neighborhood: If an officer believes a dwelling unit, house, or shop is subject to demolition, they must first conduct a neighborhood survey to determine how many properties in the area are also liable for demolition based on municipal law. Preparation of Demolition List: After completing the neighborhood survey, the officer shall prepare a list of all houses or units deemed fully or partially liable for demolition. Mr. Mohd. Nizammudin Pasha Ms. Rashmi Singh, Advs Order of demolition must record reasons therefor inter alia including the following: I. Documents relied upon by owner to prove ownership/validity of property; II. Relevant provisions under which property is illegal/encroachment; III. Alternative rehabilitation or compensation provided to owner; IV. Time given to owner to move belongings etc. from property sought to be dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be carried out under the orders of the said authority. No persons or their movable property, shall be subject to any direct or indirect harm. 7. MALFEA SANCE OF ERRING OFFICERS AND ACCOUNTABILITY Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. I. If the proposed action of demolition was in bad faith and actuated by malice, disciplinary proceeding may be initiated against the erring officers under their applicable service rules. II. In case any demolition is carried out in violation of the guidelines, the erring officers and the head of the department that has carried out the demolition shall be personally liable. In addition, proceedings for contempt against the erring officers may be initiated. The compensation to be paid to the owner shall also be recoverable from the salary of the erring officers including the head of the department. III. The erring officers shall also be liable for prosecution u/s 198,324,326(f), 326(g),56,59 BNS Ms. Nitya Ramakrishnan, Sr. Adv. Government officers, Ministers, Member of Legislative assembly, Member of Parliament of the Union or the State government shall not make any statement endorsing illegal and unconstitutional penal measures and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent etc. Violation of this guideline shall attract penal consequences against the erring Officers and the aggrieved person shall be adequately compensated for consequential effect of the violation. In addition to this the violation of this guideline shall also amount to contempt of this Court on the lines of violation of the guidelines in terms of the judgment of this Hon ble Court in D.K. Basu v. State of W.B., (1997) 1 SCC 416 8. COMPEN SATORY DAMAGE S TO OWNER NI CASE OF MALICIOUS OR ILLEGAL DEMOLITION COMPEN SATORY DAMAGES TO OWNER NI CASE OF MALICIOUS OR ILLEGAL DEMOLIT ION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. Damages for Set-Aside Demolition: If the proposed demolition is set aside, the owner is entitled to damages for mental agony, harassment, and litigation costs. Compensatory Damages for Illegal Demolition: If the demolition is carried out in violation of guidelines or declared illegal by the court, the owner is entitled to compensatory damages, which include: o Cost of reconstruction of the demolished structure o Loss of belongings o Loss of reputation o Rent paid for alternate accommodation The court may also direct the authorities to rebuild the structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty damaged or destroyed and restoration of the underlying land to persons found upon final adjudication to have been victims of punitive extra-judicial demolitions. 9. DISSEMI NATION COMPLIA NCES OF THE GUIDELI NES Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. The guidelines should be translated in local language and widely disseminated including publication in local newspapers and should also be uploaded on the official website of the municipal authorities. Mr. Mohd. Nizammudin Pasha Ms. Rashmi Singh, Advs. Nodal officers must be appointed by the State Governments to perform the following functions: i) to ensure strict compliance of guidelines issued by this Hon ble Court; ii) to provide information to owners as to legal provisions under which their dwellings etc are illegal, legal remedies available etc.; The Nodal Officers so appointed shall be made personally liable in case of violation or noncompliance of guidelines issued by this Hon ble Court Mr. M.R. Shamshad, Sr. Adv. Appropriate authorities/Municipal authorities shall nominate group of officers who shall be answerable to courts/administration as and when the issue relating to demolition of houses, structure, shop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners (at pp. 28 - 32 of the Compilation of Suggestions submitted by the Ld. Nodal Senior Counsel), itself notes that the demolitions at S. Nos. 3, 4, 5, 6, 7, 10, 16, 22) were all of structures that amounted to illegal encroachment in public places, which itself has been carved out of this Hon'ble Court's Order dt. 17.09.2024. Therefore, it is submitted that the SoP framed by this Hon'ble Court may not allow for notice in case of encroachment on public land, if the relevant municipal law allows for such demolition without notice. At best, the illegal encroachers on the said public land/public place, may be granted 48 hours to vacate such encroachment. This Hon'ble Court in the Delhi Ceiling cases (MC Mehta v. Union of India), has also endorsed a 48 hour notice period in certain cases. 4. Manner of Service of Notice: It is submitted that most municipal laws provide for the manner of service of notice. For instance, Section 43 of the Uttar Pradesh Urban Planning and Development Act, 1973 provides for the service of notice, either to be handed over in person, or if such person cannot be found, then by affixation on some conspicuous part of his last known place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as urgent by the Constitutional Courts, and 72 hours is sufficient time for the aggrieved persons to approach the courts. 7. It is again reiterated that at the first instance, the municipal laws must be strictly followed qua the requirements of notice, service of notice, procedure of hearing, and final order of demolition. The suggestions above are merely meant to supplement the municipal law where the same is warranted on account of lacunae in the said laws. Furthermore, it is submitted that such guidelines should not allow for illegal encroachments on public places, waterways etc to continue with impunity when the relevant statute itself does not provide for notice in such cases. 12. The scope of the present petitions is limited. The question that will have to be considered is, as to 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? 13. For considering the said question, we will be required to consider the principle of the Rule of law, which is the very foundation of democratic governance. We will also h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sms or institutions that enforce the legal Rules if they are breached Tamanaha, Brian Z. The history and elements of the rule of law. Singapore Journal of Legal Studies (2012): 232-247.. It ensures that courts should be available to enforce the law and should employ fair procedures Fallon Jr, Richard H. The rule of law as a concept in constitutional discourse. Colum. L. Rev. 97 (1997): 1.. The law must be just and fair, and protect the human rights and dignity of all members of society Stein, Robert. Rule of law: what does it mean. Minn. J. Int'l L. 18 (2009): 293.. Above all, the essential purpose of the Rule of law is to prevent the abuse of power Raitio, Juha. The Concept of the Rule of Law - Just a Political Ideal, or a Binding Principle?. Giornale di Storia Costituzionale, 45, 2023, pp. 37-46. HeinOnline.. Lord Bingham sets out as one of the facets of the Rule of the law, the following Bingham, Tom. The Rule of Law, p.60.: (4) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably. 18. The Rule of law h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rule of law to be part of the basic structure of the Constitution. It will be apt to refer to the following observations of Justice Mathew: 341...I cannot conceive of Rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the Rule of law... 23. The relevance of the Rule of law in our constitutional system has been considered by this Court in various judgments. In the case of National Human Rights Commission v. State of Arunachal Pradesh and Anr. 1996 INSC 38=(1996) 1 SCC 742, this Court was considering the plight of Chakma community in the State of Arunachal Pradesh. This Court observed thus: No State Government worth the name can tolerate such threats by one group of person to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te fails to perform its duties, the Court would step in to ensure that the Rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the Rule of law, amounts to negation of equality Under Article 14 of the Constitution. The concept of Rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of Rule of law. There can be no Rule of law if there is no equality before the law; and Rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don't step in to enforce the Rule of law. Thus, the judiciary is the guardian of the Rule of law and the central pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, philosophical, and political justification in controlling the actions of executive power Arthur H. Garrison, The Rule of Law and the Rise of Control of Executive Power , 18(2) Texas Review of Law Politics 303-355 (2014). (emphasis added) 32. It has been emphasized that the Rule of law provides a framework and value system to 'rein in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively'. 33. It can thus be said that the processes enshrined in constitutional law, criminal law and procedure are facets of the Rule of law and thus serve to regulate the exercise of executive power. III. SEPARATION OF POWERS 34. Another important aspect that needs to be addressed in the present matter is with regard to the doctrine of separation of powers, as envisaged in our Constitution. Our Constitution has earmarked separate areas for exercise of powers and for discharge of duties to the three organs of the democracy, viz., the Executive, the Legislature, and the Judiciary. The Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers in any one organ may, by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic government to which we are pledged. 38. The Constitution Bench of this Court though admits that the Indian Constitution does not recognize any rigid separation of powers, yet holds that, by upsetting the fine balance between the three organs, the fundamental premises of a democratic government to which we have pledged, will be destroyed. The Court observed that the Indian Parliament will not direct that an Accused in a pending case shall stand acquitted or that a suit shall stand decreed. 39. A Nine-Judge Bench of this Court in the case of I.R. Coelho (Dead) by LRs. v. State of T.N. (2007) 2 SCC 1 recognized the doctrine of the separation of powers as a system of check and balance . The Court observed that the separation of powers leads to prevention of tyranny . The Court while emphasizing on the interconnectedness between judicial review, Rule of law, and the separation of power observed thus: Equality, Rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is a facet of the doctrine of separation of powers. At this stage, we may clearly state that there can really be no straitjacket approach in the sphere of separation of powers when issues involve democracy, the essential morality that flows from the Constitution, interest of the citizens in certain spheres like environment, sustenance of social interest, etc. and empowering the populace with the right to information or right to know in matters relating to candidates contesting election. There can be many an example where this Court has issued directions to the executive and also formulated guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualisation and fructification of statutory rights. 43. This Court, therefore, observed that this Court can issue a direction to the executive and also formulate guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualization and fructification of statutory rights. 44. The aforesaid decision would lead to a question, as to whether when the adjudicatory functions are entrusted to the judiciary, can the officers of the State Government take upon themselves the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India [(2005) 8 SCC 202: (2006) 1 SCC (Cri) 23], this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are the protectors of civil liberties of the citizens, would ensure protection against devastating results of State action. The principles of public accountability and transparency in State actions are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also do not lack bona fides. The Court held that the public officers are answerable for both their inaction and irresponsible actions. For such actions or inactions, responsibility should be fixed on the erring officers so as to ensure the real public purpose of an answerable administration. 49. The Court held that the principles of public accountability are applicable to the government officials with all their rigour. Greater the power to decide, higher is the responsibility to be just and fair. It has been held that every officer in the hierarchy of the State, by virtue of his being public officer or public servant , is accountable for his decisions to the public as well as to the State. It has been held that the concept of dual responsibility should be applied with its rigours in the larger public interest and for proper governance. 50. This Court in the case of Express Newspaper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for negligence.... This is not the task for Parliament ... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country. [emphasis added] 52. In the case of Common Cause, a registered society v. Union of India and Ors. (1999) 6 SCC 667, this Court observed thus: 90. Halsbury's Laws of England, Vol. I(I) 4th Edn. (Reissue), (para 203) provides as under: Deliberate abuse of public office or authority.-Bad faith on the part of a public officer or authority will result in civil liability where the act would constitute a tort but for the presence of statutory authorisatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used of a crime, then it acts contrary to the principles of 'rule of law'. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an Accused, it violates the principle of 'separation of powers'. We are of the view that in such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions. 54. For the executive to act in a transparent manner so as to avoid the vice of arbitrariness, we are of the view that certain binding directives need to be formulated. This will ensure that public officials do not act in a high-handed, arbitrary, and discriminatory manner. Further, if they indulge in such acts, accountability must be fastened upon them. V. RIGHTS OF THE Accused UNDER THE CONSTITUTION 55. While we consider the issue in this case, we will have to reiterate that even the incarcerated individuals, whether Accused, undertrial, or convicts, have certain rights, as any other citizen. They have a right to dignity and cannot be subjected to any cruel or inhuman treatment. The punishment awarded to such persons has to be in accordance with law. Such punishment cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... live with dignity extends even to the incarcerated. Not providing dignity to prisoners is a relic of the colonizers and pre-colonial mechanisms, where oppressive systems were designed to dehumanize and degrade those under the control of the State. Authoritarian regimes of the pre-constitutional era saw prisons not only as places of confinement but as tools of domination. This Court, focusing on the changed legal framework brought out by the Constitution, has recognized that even prisoners are entitled to the right to dignity... Thus, the jurisprudence which emerges on the rights of prisoners Under Article 21 is that even the incarcerated have inherent dignity. They are to be treated in a humanely and without cruelty. Police officers and prison officials cannot take any disproportionate measures against prisoners. The prison system must be considerate of the physical and mental health of prisoners. For instance, if a prisoner suffers from a disability, adequate steps have to be taken to ensure their dignity and to offer support. 60. It is thus clear that no one can take away the fundamental rights of prisoners or the Accused. Incidentally, this Court in the case of Rudul Sah v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power. VI. PRINCIPLES OF CRIMINAL LAW: PRESUMPTION OF INNOCENCE AND NATURAL JUSTICE. 63. The principle, that the criminal justice process is also to be in accordance with the principle of the Rule of law, is also very well enshrined in the Constitution. The principle, that an Accused is not guilty unless proven so in a court of law is foundational to any legal system. It reflects the presumption of innocence, which means that every person Accused of a crime is considered innocent until proven guilty beyond a reasonable doubt by a court of law. This principle ensures that individuals are not unfairly punished or stigmatized based solely on accusations or suspicions. 64. The right to a fair trial is essential in upholding the Rule of law and protecting individual liberties. It ensures that the principles of natural justice and fair process are being strictly followed. H.L.A. Hart summarized the principle of natural justice as follows: It may be said that the distinction between a good legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red that the trial must be fair and open, but not prejudiced by public clamor. The precepts of natural justice are to ensure that the legal order will be impartially and regularly maintained. An Accused cannot be declared guilty, unless proven so beyond reasonable doubt before a court of law. They cannot be declared guilty, unless there is a fair trial. 67. In this regard, it will be apposite to refer to the decision of this Court in the case of Himanshu Singh Sabharwal v. State of Madhya Pradesh and Ors. AIR 2008 SC 1943, where it was held: Failure to accord fair hearing either to the Accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial... The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 72. 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. 73. As we have already said, 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. 74. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingful to the poor, the State has to provide facilities and opportunity to build houses. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is the constitutional duty of the State to provide house sites to the poor. 8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elong to Accused persons. He, however, reiterated that it was the stand of various States that such properties can be demolished only in accordance with the procedure prescribed by law. 81. The position is disputed by the learned Counsels appearing on behalf of the Petitioners/applicants. It is stated that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. It was submitted that the time gap between the person being named as an Accused and demolition of his property/properties made it apparent that the punishment of demolition was inflicted by the executive on such person being arrayed as an Accused. It was also submitted that in case of demolition of the property of an alleged Accused, it is difficult to believe that only a single construction belonging to an Accused is unauthorized construction, whereas all other structures in the vicinity are legal and authorized as per local laws. 82. Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as doctrine of proportionality . Jurisprudentially, proportionality can be defined as the set of Rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012).], a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce between a commission of enquiry and a court of adjudication, between the cumulative causes of a calamity and the specific guilt of a particular person, is that speaking generally, we have rejected, as a nation, the theory of community guilt and collective punishment and instead that no man shall be punished except for his own guilt. Its reflection in the disciplinary jurisdiction is that no worker shall be dismissed save on proof of his individual delinquency. Blanket attainder of a bulk of citizens on any vicarious theory for the gross sins of some only, is easy to apply but obnoxious in principle. IX. DIRECTIONS 90. In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power Under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity of personal hearing to the person concerned. ii. The minutes of such a hearing shall also be recorded. C. FINAL ORDER i. Upon hearing, the designated authority shall pass a final order. ii. The final order shall contain: a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof; b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor; c. if the designated authority finds that only part of the construction is unauthorized/non- compoundable, then the details thereof. d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available. D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER. i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above. ii. An opportunity should be given to the owner/occupier to remove the unaut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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