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Demolition drives may challenge the rule of law

  • Category
    Polity & Governance
  • Published
    29th Jun, 2022

Overview

  • Rule of law
  • Current issues
  • Major concerns

Context

Recent demolition drives in the aftermath of the Prophet Remarks row has challenged the certain basic tenets of law, including right of a person to be heard first, and the non-arbitrary power of the state to deprive a person from his/her property.

Background

  • The founder of the modern ‘legal profession’, V. Dicey believed that there were two principles in the British unconstitutional constitution:
    • The sovereignty or supremacy of Parliament.
    • The rule of law.
  • Dicey, therefore, saw the rule of law as a barrier (though not total control) of unlimited state power over the individual.
  • For Dicey the law had three key elements:
    • No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. The power of choice can lead to thinking.

    • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honor and reputation.
    • The rule of law should not be based on any written constitution but on "common law"
  • However the third aspect did not happen in India by adopting a Constitution that was made too foreign.
  • In this regard not only India, many countries adopted a constitution based not on their traditional legal system but on the basis of western ideology of the 19th and 20th centuries.
  • A total of three principles namely:
    • Greatness of the Law
    • Equality before the law and equal protection of the Act
    • The rule of the spirit of Law or no Supreme Law other than human rights as determined by the Courts

Analysis

What is ‘Rule of Law’?

  • The rule of law is the legal principle that the law should govern the state and not by the arbitrary decisions of individual government officials. 



  • This is primarily related to the influence and authority of law in society, especially as a constraint on the actions of government officials. 
  • The rule of law doctrine begins in England; A.V. Dicey has three basic principles. 
  • No one is punished except for lack of arbitrariness, that is, for violating the law.
  • Equality under the Act: All citizens (rich or poor, high or low, formal or informal) are equally subject to the common law of a country governed by a common court. 
  • Personal rights advantage, i.e. The Constitution is not the Constitution as a source of individual rights, but the result of individual rights defined and enforced by the courts.

 Highlights of the issue

  • Principles of Law include:
    • The right of a person to be heard first, once
    • That the state may deprive a person of his or her property only after due process and under the authority of applicable law as authorized under Section 300A of the Constitution.
  • Status of the Supreme Court:
    • Property rights under Article 300A are a human right.
    • Article 300A is a powerful right. The demolition of houses was the result of political incitement by officials. Actions such as demolition were a nuclear holocaust held by problem makers.
  • Jamiat Ulama-i Hind's application to the Supreme Court ruled that the retaliation by the Uttar Pradesh government for revenge was in violation of laws enacted by the state legislature itself.
    • Refer to Section 10 of the Uttar Pradesh Act (Building Performance Management Act) 1958 which stipulates that a building should not be demolished without giving the parties a "sound" opportunity.
    • Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 requires that the affected person be heard and given 15 days' notice before proceeding with the demolition.
    • Apart from this, the Act allows a person who is dissatisfied with a severance order to lodge an appeal within 30 days.

How they are violating several Rights of the People?

  • Right to housing: The right to housing is a fundamental right recognised under Article 21 of the Indian Constitution.
  • Further, it is also a well-documented right under the international human rights law framework, which is binding on India.
  • As per UDHR; Article 25 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care”.
  • Article 12 of UDHR prohibits arbitrary interference in an individual’s right to property.
  • It also stipulates that “everyone has the right to the protection of the law against such interference or attacks”.
  • Supreme Court’s stand:
    • The apex court in cases like Bachan Singh vs State of Punjab, Vishaka vs State of Rajasthan, and in the Puttaswamy vs Union of Indiahas stated that the fundamental rights must be read and interpreted in a manner which would enhance their conformity with international human rights law.
  • International Human Rights Violation: It is also a well-documented right under the international human rights law framework, which is binding on India.
  • Article 12 of the UDHR states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honour and reputation”.

What can be done further?

  • Judicial interference: As the custodian of India’s constitutional order, it is high time that the judiciary acted and imposed necessary checks on the unbridled exercise of power by the executive.
  • International agencies: Courts should use international law to counter the nationalist-populist discourse.
  • Legal Provisions: Any justification for a demolition drive, as a penal consequence to a criminal act is totally against established canons of criminal justice.
  • Saving the Basic structure: The conduct of demolition drives, as a retaliatory measure, even with the avowed object to curb violence is a clear act of subversion of the principle of rule of law.

PRACTICE QUESTION:

Q1) What do you understand by the term ‘unconstitutional state of affairs’? Discuss the role of judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution.

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