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)