TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 1414
X X X X Extracts X X X X
X X X X Extracts X X X X
....kita Choudhary Rathi, Adv. Mr. Vinayak Sharma, Adv. Mr. Shiv Mangal Sharma, Adv. Mr. M.R. Shamshad,Sr.Adv. Mr. Farrukh Rasheed,AOR Mr. Arijit Sarkar,Adv. Ms. Z. Hasan,Adv. Mr. Salman Khurshid, Sr. Adv. Mr. Aftab Ali Khan, AOR Mr. Abdul Karim Ansari, Adv. Mr. Brahmjeet Singh, Adv. Ms. Azra Rehman, Adv. Mr. M. Z. Chaudhary, Adv. Mr. Ali Safeer Farooqi, Adv. Ms. Sidra Khan, Adv. Mr. Tanveer Ahmad Khan,Adv. Mr. Tauqeer Ahmad Khan,Adv. Ms. Seema,Adv. Mrs. Kumudini Priyadarshni,Adv. Mr. Saurabh Mishra, Sr. Adv. Mr. Bharat Singh, A.A.G. Mr. D.s. Parmar, A.A.G. Mr. Sarad Kumar Singhania, AOR Ms. Rashmi Singhania, Adv. Dr. Abhishek Manu Singhvi,Sr.Adv. Mr. Sarim Naved,Adv. Mr. Saurabh Sagar,Adv. Mr. Shahid Nadeem,Adv. Mr. Arif Ali,Adv. Mr. Mujahid Ahmed,Adv. Mr. Wasif Rehman,Adv. Ms. Sugandha Anand , AOR Mr. C.U. Singh, Sr. Adv. Mr. Ujjwal Singh, AOR Ms. Tasmiya Taleha, Adv. Ms. Bidya Mohanty, Adv. Mr. Abhishek Kalaiyarasan, Adv. Ms. Katyayani Suhrud, Adv. Mr. Sanjay Hegde,Sr.Adv. Mr. Anas Tanwir, AOR Ebad Ur Rahman,Adv. Mr. Masoom Raj Singh,Adv. Mr. Mohammad Asif Abbas,Adv. Mr. Zaid Raza,Adv. 2 Mr. Zainab Shaikh,Adv. Mr. Raghav Gupta,Adv. Mr. Mayank Suryan,Adv. Mr. Ankit Tiwari,Adv. Ms. Pi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....als' stability and security. An important question as to whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused in a crime under our constitutional scheme or not arises for consideration. Before we proceed with our judgment, we may gainfully refer to the following observation of Lord Denning in the case of Southam v. Smout (1964) 1 QB 308 at 320 : "'The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter - all his force dares not cross the threshold of the ruined tenement.' So be it - unless he has justification by law." I. BACKGROUND 1. This batch of Writ Petitions filed under Article 32 of the Constitution of India seeks to raise the grievance on behalf of various citizens whose residential and commercial properties have been demolished by the state machinery, without following the due process of law, on the ground of them being involved as an accused in criminal offences. 2. The petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eafter, we heard the matter at length on 1st October 2024. 8. We have heard Shri Abhishek Manu Singhvi, Shri M.R. Shamshad, Shri Sanjay Hegde, learned Senior Counsel appearing for the petitioners, Shri Tushar Mehta, learned Solicitor General of India ("SG" for short), appearing for the Union of India as well as for some of the States, Shri Nachiketa Joshi, learned Senior Counsel and Shri C.U. Singh, Smt. Nitya Ramakrishnan, learned Senior Counsel and Shri Mohd. Nizammudin Pasha, Smt. Fauzia Shakil and Smt. Rashmi Singh, learned counsel appearing for their respective applicant(s) seeking intervention/impleadment. 9. In pursuance to our order dated 2nd September 2024, various learned counsel had given their suggestions. 10. Shri Nachiketa Joshi, learned Senior Counsel has made a compilation of the suggestions given by different learned counsel on different points. The same are reproduced herein below: S.No. TOPIC/ ISSUE COUNSEL'S/ PARTY NAME SUMMARY OF SUGGESTIONS 1. SHOW CAUSE NOTICE SHOW CAUSE NOTICE Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. RELEVANT DETAI....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eds 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 specific portion and extent of the building/structure that is deemed illegal. Time for Response: The notice must provide a response period of no less than 45 days and no more than 60 days for the owner/occupier to justify why the structure should not be demolished. Notice to Family Members: If the owner or occupier cannot be found, the notice may be served to a member of their immediate family, with additional time for response granted in such cases Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs A.Publication of notice of demolition in at least 10 days in advance in local newspapers in addition to personal service of notice on the owner of the property sought to be demolished; B. Personal hearing of owner of property; Mr. M.R. Shamshad, Sr. Adv. Service of Notice: Once the list is prepared, the officer must serve written notice at least 60 days before the proposed demolition. The notice must contain: a. Reas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ruction, 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 inconsequential in character, and the house/commercial establishment can be saved by removing the offending part, the owner may be permitted to remove the encroachment and save the building. The administrative action should be proportional to the alleged breach and demolition should be the last option. 4. ORDER/ NOTICE OF DEMOLITION ORDER/ NOTICE OF DEMOLIT ION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv. Authority's Satisfaction and Demolition Order: After considering the owner's reply, written explanation, and physical hearing, if the authority is satisfied that there are violations beyond condonable limits or cannot be regularized, an order for demolition may be made. Relevant Details in the Demolition Order: * The demolition order must state reasons for the proposed act....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 demolished; No order of demolition ought to be passed till sufficient time has been granted to the owner of property to take recourse to effective legal remedies including appeal/challenge against the order of demolition. In any proceedings where demolition is challenged on the ground of the same being punitive, the fact that the aggrieved person has been singled out for action and no action has been taken against similarly situated persons in the vicinity must be a valid consideration for grant of relief; 5. CHALLENGE TO THE ORDER OF DEMOLITION Mr. C.U. Singh, Sr. Adv. and Ms. Fauzia Shakil, Adv Judicial Examination of Demolition Orders: Courts must assess whether the proposed demolition is motivated by malice or bad faith. Presumption of Malice i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....id 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 if the such statements are made the same shall be a cause for criminal prosecution as well as tortious liability on part of the persons or class of persons who have suffered from such unconstitutional penal measures. Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs. Strict Action Against Officials Involved in Demolitions: * Ministers: Ministers who publicly justify or support demolitions immediately following accusations against the victim, whether before or after the demolition, must face strict action. * Municipal Officers: Municipal officers responsible for carrying out such demolitions should be held accountable. * Police Officers: Police officers who order, aid, or assist in the execution of illegal demoli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....side 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 structure and award punitive damages. Ms. Nitya Ramakrishnan, Sr. Adv. Appointment of Claim Commissioner: * Any judicial officer may be appointed as a Claim Commissioner, empowered to grant compensation or restitution to persons whose buildings or structures have been demolished illegally or arbitrarily by the authority. * Orders for compensation by the Claim Commissioner shall be treated as decrees of a Civil Court and executed accordingly. Personal Liability of Officers: * If an officer willfully or negligently fails to comply with Supreme Court guidelines, causing damage or loss, they will be personally liable for recover....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nments 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, shops etc. are questioned in courts of law or any other forum. The said Nominated Officer shall report to the Divisional Commissioner / equivalent officer thereto. 11. Shri Tushar Mehta, learned SG, has also given his suggestions. The same are reproduced herein below: In view of the legal position exposited above, the following suggestions are put forth by the Ld. Solicitor General on behalf of the Respondents: 1. The specific requirements of notice as provided in the relevant municipal law must be strictly followed. Further, the notice must clearly state the al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce. 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 residence or business or on some conspicuous part of land or building to which it relates, or by registered post. It is therefore submitted that (i) the manner of service specified in the relevant municipal law must be strictly followed; (ii) if the relevant statute is silent on the issue of service of notice, then it must be sent through registered post, and if such post is returned unserved/refused, then it must be affixed on some conspicuous part of the building/ property against which the action is proposed; and (iii) in all cases, where....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 have to consider the rights guaranteed under the Constitution that provide protection to individuals from arbitrary state action. We will also have to consider in this case the issue with regard to fairness in the criminal justice system, which mandates that the legal process should not prejudge the guilt of the Accused. We will also have to touch upon the concept of separation of powers and the doctrine of public trust in respect of government officials holding their offices. II. RULE OF LAW 14. The Rule of law has been succinctly c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 has also been described as "an umbrella concept for a number of legal and institutional instruments to protect citizens against the power of the state" Bedner, Adriaan. "An elementary approach to the rule of law." Hague Journal on the rule of law 2.1 (2010): 48-74.. Moreover, "Rule of law is integral to and necessary for democracy and good governance", because "attempts to democratize without a functional legal system in place have resulted in social disorder" Peerenboom, Randall. "Human rights an....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. 24. This Court in unequivocal terms held that no State Government worth the name can tolerate threats by one group of person to another group of persons. It has been held that the State is duty bound to protect the group from such assaults and if it fails to do so, it will fail to perform its Constitutional....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 pillar of a democratic State. Therefore, the judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it. Further, in a democracy where Rule of law is its essence, it has to be preserved and enforced particularly by courts of law. Compassion and sympathy have no role to play where Rule of law is required to be enforced. If the Rule of law has to be preserved as the essence of dem....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 is empowered to enact the laws within the framework of the Constitution; the Executive is entrusted with the powers and is expected to discharge its duties in accordance with the provisions of the Constitution and the laws as enacted by the competent Legislature. The adjudicatory function is entrusted to the Judiciary. In several judgments, this Court has reiterated the principle governing the separation of powers. 35. In the case of In ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich 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 connected. There can be no Rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary. Judicial review is justified by combination of "the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 adjudicatory function and without a person undergoing a trial be inflicted with a punishment of demolition of his properties. In our view, such a situation would be wholly impermissible in our constitutional set up. The executive cannot replace the judiciary in performing its core functions. IV. DOCTRINE OF PUBLIC TRUST AND PUBLIC ACCOUNTABILITY 45. When we are considering the issue with regard to 'Rule....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tions 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 satisfied. 216. The doctrine of "full faith and credit" applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision-making process in government hierarchy is a matter of growing concer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. (1986) 1 SCC 133 had an occasion to consider the distinction between exercise of power in good faith and misuse in bad faith. While elaborating the principle of fraud on power, this Court observed thus: 119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te 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 authorisation, as Parliament intends statutory powers to be exercised in good faith and for the purpose for which they were conferred. Proof of improper motive is necessary in respect of certain torts and may negative a defence of qualified privilege in respect of defamation, but this is not peculiar to public authorities. There exists an independent tort of misfeasance by a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ands, 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 be inhuman or cruel. 56. This Court has protected the prisoners from excesses and arbitrariness of the State and its officials. In the case of Sunil Batra (I) v. Delhi Administration and Ors. (1978) 4 SCC 494, the Court declared that the use of iron fetters, or the practice of solitary confinement and cellular segregation is inhuman. Speaking fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nfinement 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. State of Bihar and Anr. 1983 INSC 85, had an occasion to consider the question as to what happens when the rights of the Accused or the prisoners are violated, and he becomes a victim of lawlessness on the part of the State Government which keeps him in illegal detention for over 14 years after his acquittal. While granting monetary co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rocess 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 system which conforms at certain points to morality and justice, and a legal system which does not, is a fallacious one, because a minimum of justice is necessarily realized whenever human behaviour is controlled by general Rules publicly announced and judicially applied. Indeed we have already pointed out,' in analy....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 in substance, to find out the truth and prevent miscarriage of justice. 68. It has been held by this Court in the case of State of Maharashtra v. Champalal Punjaji Shah (1982) 1 SCR 299, that the right to a fair and speedy trial is enshrined under the right to life guaranteed under the Constitution. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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. 75. It is to be noted that even in the cases consisting ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty, 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 adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....licants. 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 Accused persons, however, when a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large. In such cases, where the authorities indulge into arbitrary p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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; and finally (iv) there needs to be a proper relation ("proportionality stricto sensu" or "balancing") between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. 86. It is also to be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ive 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 needs to be given to them to vacate and arrange their affairs. It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period. 91. At the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l 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 unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the ....