Open Forum
New Delhi, 9 March 2011
Sealing Our Fate
SUPREME COURT & RULE OF LAW
By Ashok Kapur, IAS
(retd.)
It has been hailed as a landmark judgment delivered by the
Supreme Court. M.C. Mehta vs. the Union of India (2006). The Supreme Court has
directed therein the Municipal Corporation of Delhi
to seal all the properties that have been constructed illegally (in Delhi). The case arose
out of a PIL filed by Mehta, a lawyer alleging that there was widespread abuse
of local bye-laws relating to planned urban development. And that the Government
was standing mute.
The Court has directed the MCD to report to it directly on
the action taken to seal such properties, pending demolition. The Court has set
up a ‘Monitoring Committee’ to oversee the working of the MCD on this issue.
The Committee comprises a former civil servant, a former official of the
Election Commission and a retired General of the Army. However, the Parliament,
in its wisdom, has conferred by law the power to seal unauthorized construction
only on officials of MCD.
The Court has further extended the power to seal to cover
not only unauthorized construction but also “misuse” of residential premises
for commercial purposes. And a commercial purpose has been defined generally as
large-scale trade in goods and services for profit. Secondly, and which has
serious implications for the rule of law, if a citizen’s Fundamental Rights
were to be violated either by the MCD or by the Monitoring Committee, he can only
approach the Supreme Court . This order is not a part of the judgment but a
subsequent clarification.
It must be said at the outset and with respect that at a
time when other institutions of the State are crumbling, the Supreme Court
continues to stand tall, save a few aberrations. It is indeed the last best
hope of the common citizen being buffeted from all sides. The Court continues
since inception as the zealous sentinel guarding the citizen’s rights against
any encroachment either by the executive or the legislature. It is a role
eloquently outlined by Justice Kania, the first Chief Justice of independent India.
In the wake of the judgment, several important issues arise
that may, ironically enough, impact the rule of law. Some aspects of the
judgment raise Constitutional issues that need to be addressed. First and
foremost, the Court by its direction to all affected citizens to approach it
directly has, in effect, suspended the operation of Article 226 of the
Constitution which guarantees the right to all citizens to move the High Court
in cases of violation of their Fundamental Rights. It is a settled law as laid down by the
Supreme Court itself that the right to move the appropriate court is itself a
Fundamental Right.
The highest court has also settled the law that the right to
move either the Supreme Court or the High Court is a concurrent Fundamental Right.
This Right cannot be abrogated or curtailed even by the Parliament by law. It
can only be done through a Constitutional amendment. The Supreme Court by its
aforesaid ruling in the Mehta case has, in effect, abrogated the Writ
jurisdiction of the High Court. On the other hand, the highest court has been
consistently discouraging citizens to approach it directly, by-passing the High
Court.
The Supreme Court is now virtually monitoring the
performance of a local body – MCD -- in implementation of a Municipal law
whereby powers have been granted by the Parliament exclusively to the permanent
executive to seal private property, essentially a coercive power. The officials
of the local body in the enforcement of the Municipal bye-laws are accountable
both to the controlling Ministry - Urban Development - as well as the duly
elected local Assembly.
The Monitoring Committee comprises retired members of the
executive who supervise the functioning of the MCD in the implementation of a
law. It would be relevant to recall in context that the Supreme Court has
itself laid down way back in 1973 in the celebrated Keshvananda Bharati case
the ‘basic structure’ doctrine which now underpins the Constitution. In terms
of the same, even the Parliament is barred to enact a law which would be
violative of the doctrine.
One of the tenets of the doctrine is the separation of
powers among the three coordinate wings of the State. The legislature
legislates, the executive implements the laws and the judiciary interprets in
case of dispute. The Mehta case judgment is all about implementation of a
municipal law overseen by an ad hoc committee that has, in effect, ousted the supervisory role of both
the constituted department headed by an
elected Minister (accountable to the Parliament) and the elected local Assembly.
The judgment needs to be evaluated in the context of the
‘basic structure ‘doctrine, now the immutable law of the land. Admittedly, the
Court does sometimes intervene in a case if there is exceptional laxity by a
public authority and the supervisory ministries are complacent. This does not
appear to be the case here. In fact, the supervisory ministry itself had issued
strict instructions prior to the PIL to all the local authorities to draw up
plans to take corrective action on a time bound basis, to check illegal
construction. The Court has reproduced
these comprehensive instructions verbatim in its said judgment.
The power to seal a citizen’s residence is a coercive power
granted by the Parliament to executive authorities which function in a regimen
of accountability to the elected bodies, and are answerable to the courts of
law. They operate under checks and balances, a basic postulate of democratic
governance. The ad hoc Monitoring Committee is under no such restraint or
check. Although the judgment is not quite explicit about the exact role of the
Committee, the nomenclature itself indicates its role.
There are instances where individual members of the
Committee have entered private residential premises without a warrant from a
magistrate or even a show cause notice and sealed the premises alleging
“misuse”. No evidence of the alleged misuse is made available. Under the
Municipal Act, Parliament has restricted sealing power only in cases of
unauthorized construction which is a tangible fact and can be measured. The
Court has expanded the scope to cover “misuse” also, which cannot be defined
precisely. Anything so ordained has a potential for misuse by the executive.
The composition of the Committee leaves much to be desired.
Only the civil servant member is a trained and experienced magistrate in rules
of procedure and natural justice. . Of the other two, the former public servant
has never worked as a magistrate - totally unfamiliar with laws and their
implementation. The inclusion of the third member, a former General of the Army
is against all norms of democratic jurisprudence. The Constitution does not
envisage any role for the armed forces in day-to-day governance.
The Supreme Court in an act of judicial statesmanship by a
landmark judgment recently has evolved the concept of curative petition in
certain cases, to review its own rulings. The Mehta judgment would be a fit
case for a curative petition and immediate dissolution of the Committee, to
avoid hardship to ordinary citizens who may somehow get trapped in the system
imposed, without an effective and affordable remedy. The judgment was delivered
by a bench headed by Justice Y K Sabharwal, former Chief Justice of India.---INFA
(Copyright, India News and Feature Alliance)
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