Speaking at the Justice S. Natarajan Centenary Memorial Lecture in Chennai, she highlighted the unconstitutionality of demolishing properties based solely on the criminal background of an accused, deeming such actions a clear example of executive overreach.
CHENNAI: Justice BV Nagarathna, a Supreme Court judge, recently lauded the apex court’s judgment condemning the use of bulldozer demolitions by State authorities as punitive measures against accused individuals.
Speaking at the Justice S. Natarajan Centenary Memorial Lecture in Chennai, she highlighted the unconstitutionality of demolishing properties based solely on the criminal background of an accused, deeming such actions a clear example of executive overreach.
“This is one stark example of executive excesses in recent years,” Justice Nagarathna remarked, underscoring the importance of judicial adjudication before any punitive action is taken.
Addressing tribunal compositions, she raised concerns about the qualifications of tribunal members, particularly those with technical or non-judicial expertise. While tribunals offer opportunities for retired judges, Justice Nagarathna cautioned against the encroachment of executive influence in judicial functions.
“Tribunals were initially created to reduce the burden on High Courts, but in some states, the experiment has failed, with cases reverting to High Courts,” she noted.
She also emphasized that discretionary powers vested in constitutional authorities like the President or Governors must align with constitutional principles rather than personal discretion.
“The satisfaction of the President and Governor is not personal or vicarious but constitutional, particularly when their powers are exercised without ministerial aid and advice,” she explained.
Justice Nagarathna further advocated for checks and balances on the legislative powers of these authorities, stressing that political motives should not override constitutional mandates.
Additionally, she criticized the misuse of ordinance powers by governments, describing it as a tactic to bypass legislative approval. Citing the D.C. Wadhwa case, she referred to the Supreme Court’s disapproval of prolonged ordinance re-promulgation as “ordinance raj.”
Looking ahead to her expected tenure as the first woman Chief Justice of India, Justice Nagarathna highlighted the importance of fostering diverse opinions in a democracy.
“Democracy is not about enforcing a single popular opinion but about refining public opinion through diverse viewpoints and consensus-building,”
she concluded.
BULLDOZER JUSTICE JUDGEMENT
In their detailed 95-page judgment, Justices BR Gavai and KV Vishwanathan strongly criticized State authorities for breaching the principles of natural justice and due process by resorting to demolitions as a punitive measure against families of accused individuals without trial.
The Court deemed such actions an overreach of executive power, undermining judicial authority. To curb this misuse of power, the Court issued binding directives, including mandatory 15-day prior notice of demolition to the occupants of targeted properties.
The notice must clearly detail the alleged unauthorized construction, outline specific violations, and provide an opportunity for the owners or occupants to contest the State’s actions. Non-compliance with these directives would result in contempt proceedings against officials, their prosecution, and personal liability for restoring demolished properties.
The Court also condemned the governments’ attempt to disguise their extrajudicial actions as enforcement of municipal laws, noting the selective targeting of properties owned by accused persons.
“When a particular structure is chosen suddenly for demolition while others in the same vicinity remain untouched, mala fide intent looms large,” the Court observed.
However, the directives do not apply to unauthorized structures occupying public spaces such as roads, footpaths, railways, or water bodies, nor to demolitions ordered by courts of law.
This judgment marks a significant step in halting the illegal practice of demolishing homes to punish individuals accused of crimes. However, it also underscores the broader issue of unchecked real estate and political collusion that perpetuates unplanned urban development and worsens the housing crisis. Census data reveals a stark increase in slum populations, rising from 42.6 million in 2001 to 65.5 million in 2011, constituting 17.4% of the urban population.
The numbers are likely to have grown since then. A comprehensive approach is essential to address India’s urban housing challenges, including timely resolution of encroachment disputes by courts to reduce opportunities for executive excesses.
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