Rule of law with special reference to bulldozer justice

Abstract

Rule of law is a dynamic principle which molds itself as to preserve constitutionalism in a country. That’s why one has to face problems when one tries to define the rule of law with precision, yet the efforts will have made to give an overview. The concept of rule of law is indispensible for a civilised country and a   democratic republic. The rule of law is necessary to the constitution of every democratic country. In the modern world, every country is promoting this principle of dominance of the law. India is also one of the countries that pays due respect to this principle. The principle of rule of law is imbibed to a great extent in the constitution of the country, and its reflection is sufficiently traceable by considering the preamble and articles 14, 19, and 21. This study will scrutinize various facets of this principle of rule of law. In order to develop a comprehensive method to understand the concept of rule of law this study will also scatter light on the Dicey’s concept of rule of law. The Indian constitution makers also nurtured this principle with heavy hands. They embedded various provisions to uphold the principle of rule of law. In this study, the judgments of the Supreme Court also highlighted in order to understand the relevance of this principle. This study tends to analyse the legal aspects of bulldozer justice with special reference to the rule of law. The authorities’ negligence of the general principle of natural justice results in mass violations of human rights and a disgrace to the rule of law. This study tends towards to disclose the judicial function of the authorities without providing the opportunity of fair hearing. This study also threw light on recent illegal and arbitrary demolition drive in various part of the India agitated by the state and also the position of law regarding the demolition drive.

Introduction

The concept of the rule of law is of great importance in any democratic setup, and a precise definition of this principle can’t be given. With a view to trace the origin of the rule of law, we have to look back in ancient Rome. Various thinkers like Hobbes, Locke and Rousseau had also made great efforts to nurture this principle of rule of law. The formal origin of the expression of rule of law was indebted to Edward Coke. It would be injustice not to throw light on the contribution of the A.V. Dicey because he was the person who provides nourishment to roots of this principle of rule of law. He discussed this principle in detail in his writing named ‘Introduction to the law of constitution’. The principle of rule of law is based on justice, equity, good conscience, fairness and rationality. It is developed as the system of check and balance in order to evaluate the act of the authorities on the touchstone of justice, equity, equality, fairness and reason. This principle emerged as the greatest tool of social control and saved the public from the tyrannical and arbitrary acts of the authorities. The rule of law develops the sense that we are living under the government of laws not of any man.  One thing demands attention that even though we are governs and control by rule of law yet in actual sense, we are under the control of the authorities. That is the point from where the problems arise. Rule of law tries with great force to idealize the activities of authorities, but these efforts ended with failure when the authorities transgressed the limitation of the rule of law. Over the past couple of months, the people of India have become the witness of illegal demotion drives led by the various state governments and municipal corporations. Each demolition drive is desperately challenging the principle of rule of law. These illegal acts of bulldozing the house of people have certain common elements namely arbitrariness, transgression of principle of natural justice, mass violation of human rights. The issue of bulldozing the house illegally is promoting by the news agency as a speedy tool of justice, but the shocking part is that extensive numbers of people in the country are supporting this arbitrary act of authorities. The bulldozer was run by the government in khargone (M.P.), Jahangirpuri (Delhi), Prayagraj of U.P. and there are many more instance which forced us to think that whether rule of law exist in India.

Rule of Law: meaning and definitions.

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”-Caroline Kennedy

As per the Black’s Law Dictionary, “Rule of Law means legal principles of day to day application, approved by the governing bodies or authorities and expressed in the form of logical proposition.”
As per the Oxford Advance Learner’s Dictionary, “Rule of Law means the situation in which all the citizens as well as the state are ruled by the law.”

We have already expressed the inability to express the meaning of the term ‘rule of law’ with precision but attempts should be made with a view to explain the expression ‘rule of law’. The difficulty to define this expression is faced due to the lack of unanimous definition of the term ‘law’. The term ‘law’ was defined by various people in varied ways. But, in general sense, the law is an instrument to control the behaviour of the society. Law is the guiding star for the society to find out the righteous way when the cloud of oppression covered the society.  In this way, the rule of law is the set of principles which requires the supremacy or dominance of the guiding star ‘law’. The term ‘rule of law’ indebts for its origin to French phrase ‘la principe de legalite’. It is referred to a government which functions as per law; not by the command and will of men.  Professor Wade rightly said, “The rule of law requires that the government should be subject to the law, rather than the law subject to the government.”  Violation is the inherent Characteristics of the power and rule of law is the greatest instrument to counter such violation. From the beginning of the society, mass exploitation of rights of people witnessed on large scale. The rule of law is vehicle to transform the society from uncivilized to a civilized one.

Concept of Rule of Law

The professor A.V. Dicey has extensively explained and developed the doctrine of the rule of law. He defined the rule of law as the bundle of rules which promotes equality, rationality and dominance of the law. The Whole Concept of Dicey Lies on three major pillars namely ‘supremacy of law’, ‘equality before law’ and ‘pre dominance of legal spirit’. In order to grasp the essence of this doctrine, we need to understand following abovementioned words extensively.

The first pillar in building of rule of law is supremacy of law. Supremacy of law denotes that law is above every person. It is the people who subjected to law but law are not subject to any person. Supremacy of law reflects the idea that whatever be the rank, position, designation of people, every person is subjected to law of the land. Supremacy of law promotes the autonomy of individual and makes a check on intrusiveness of the authority.

Another pillar is the equality before law. Equality before law highlights the relevance of equality to uphold and promotes this doctrine. This doctrine requires the subjection of all people to equal people. It means that law is same for the people residing in a particular land. The idea of equality was sufficiently reflected from the Article 14 of the Indian Constitution and Article 7 of the Universal Declaration of Human Rights.

Rule of Law in India

The Indian constitution has significantly preserved the notion of rule of law. The expression ‘justice’, equality, ‘liberty’, and ‘liberty’ used in the preamble makes the rule of law a central thought of the constitution of India. Apart from the preamble, there are various provisions were added in the constitution of India in order to nurture this doctrine. Article 14, 19 and 21, the directive principle of the state policy, separation of powers, limitations of the powers of the authorities and the most important thing; independent judiciary and judicial review are speaking witnesses of confluence of this doctrine. But the point of discussion is not that whether we have rule of law or not? But, the discussion is rounded on the debate of applicability of this doctrine.

      The Apex Court of India has made every possible effort to nurture this principle of rule of law. The Apex Court has extensively defined the meaning and the utility of this principle to make the society civilised. In the case of ADM Jabalpur v/s Shivkant Shukla, the dissenting opinion of Justice H. R. Khanna requires attention. He made the following observation in respect of the important and relevance of the rule of law. He said, “Even in absence of Article twenty one within the Constitution, the state has no power to deprive someone of his life and liberty while not the authority of law. While not such holiness of life and liberty, the excellence between a lawless society and one ruled by laws would stop to possess any meaning…Rule of Law is currently the accepted norm of all civilized societies”.

Keshavananda Bharti v. state of Kerala is the most celebrated case in the legal history of country. in this case, apex court declared that the principle of rule of law is a necessary part of the fundamental skeleton of the constitution and it is beyond the amending power of the legislature. the apex court expressed the view that the law is supreme and superior to authority of men.          

Union of India v. president, madras bar association is another case before the apex court discussing this pious principle of natural law and morality. In this case, the apex court held that rule of law is huge concept which has various facets. The court emphasised on the independence and impartiality of judiciary while adjudicating any matter presented to it. The court also expressed its view that while question relating to the legality of executive’s action rose, it should be adjudged by those judges who are free from the influence of the executive. 

The Supreme Court in the case of Som Raj v. state of Haryana observed that absence of arbitrary power on the part of executive is the chief attribute of rule of law. The apex court also held that discretion conferred on executive should be exercised observing rule of law. Whenever, discretionary power exercised without due care and caution, it becomes antithesis of the concept of rule of law.         

Bulldozer Justice: A threat to rule of law

Bulldozer is a powerful tool and having great significance. It is very significant tool because it has great utility in construction work like pushing, excavating, digging, and leveling surface. They have front turbines that push materials that are big and heavy. In current scenario, it does not only remain a tool for excavating, digging, and leveling materials but also becomes the symbol of oppression. New societal meaning was attached to it. In most part of the country, it is referred to as tool of oppression and tyranny. The authorities are using bulldozer as tool to ground the dwelling house of the political crimes. These state actions of   demolition against an accused is completely fail to gather the support and backing of law. It symbolizes for its merciless approach to administering “justice” to those it views as offenders or enemies. The act of bulldozing ruthlessly buildings is a clear representation of how the ruling party views the rule of law. The ruling party is desperately disrespecting the independence of public institutions and civil society. Naturally, in Uttar Pradesh, the bulldozers first went into action.  State protected demolition drive increasingly becomes the topic of national relevance. Municipal authorities are attempting to demolish dwelling house in some states and the capital of the country. a notice to the illegal possessor must be given in order to support their occupation. Before any coercive action can be taken legally, the affected individual must first be served with a notice and given the chance to be heard. The need for notice is not a matter of method or proceeding but it is necessity of natural law principle and the rule of law. The demolition drive led by the state is taking place without providing opportunity to knock the doors of the court and of fair hearing. These demolition drives are a truly important and current issue of national relevance because it is the administrative trial without judicial trial. The authorities are continuously violating the basic principles of the natural justice namely rule against bias and rule of fair hearing.The state is exerting excessive force in the name of maintenance of law and order; and bulldozing the property of the person. In India, anti-encroachment campaigns are nothing new. The fact that the current drives are against the law is what is novel. In India, the legal system is straightforward. Anyone accused of encroaching upon another’s property is given notice of the accusation and a chance to respond. However, in this bulldozing campaign, demolishing homes is a penalty for being a “rioter.” The central concern is that the authorities are doing all these acts in contravention of the basic principles embedded in the constitution and statute. There are no provision in the constitution and the statute which justifies the acts of the state. The central concern is not that government, municipal authority, or government contractor cannot dismantle a building or a component of a building without providing proper notice, notification, or reparation. But, the concern is that they are doing all without observing the basic principle of natural justice and rule of law. These demolition drives are promoting the sense of the retribution rather than the reformation. These acts of bulldozing dwelling house are nurtures by the sovereign authority and legalized by the dominating majority. The news agency also played important role in promoting this illegal and immoral as legal one.

Illegal demolition and Indian Judiciary

For instance, the Delhi Municipal Corporation Act, 1957 in the National Capital Territory, provides a complex procedural system to deal with unauthorized development. A notice to the unauthorized possessor must be given in order to support their occupation. Before any kind of coercive measure can be taken legally, the affected individual must first be served with a notice and given the chance to be heard. The necessity of notice is not a procedural norm, but rather a cornerstone of natural justice and a component of the rule of law.

Right to own property was abolished as a fundamental right by the 44th amendment to the Constitution in 1979 but was reinstated by the introduction of Article 300A. No person “shall be deprived of his property except by the authority of law,” according to Article 300A. In its subsequent rulings, the Supreme Court reaffirmed that any confiscation of an asset by the authorities has to conform to standards of rationality and due process of law, in addition to having a statutory punishment.

In the year of 1985, the case of Olga Tellis & Ors. vs. Bombay municipal corporation & Ors. came before the Apex court. The court emphasised on the legal necessity of issue of notice. the court also observed that the opportunity to be heard is a necessary requirement before the process of evicting residents of an illegal slum or pavement dwelling could begin. the supreme court made the seminal observation that even a trespasser should be given an adequate chance to leave before compel is utilised to forcefully remove them.

In the year of 1978, in the most celebrated judgment of Supreme Court in the case of Menaka Gandhi vs. union of India, the court stretched the limited scope of article 21 of the constitution of India. The Supreme Court stated that the “due process of law” is an integral part of procedure established by law. the supreme court held, “procedure must be fair, just and reasonable.” it should not be deemed procedural at all if the legal process is imaginative, harsh, or arbitrary in nature, as this would not satisfy all of article 21’s standards.

In the case Municipal Corporation., Ludhiana v. Inderjit Singh, the Supreme Court once more ruled unambiguously if the requirement of supplying notice is laid down by municipal law, then undoubtedly this requisite must be compiled with. No authority may proceed directly to bulldozing property, even though it would be unauthorized constructions. Without giving notice to the resident and a chance of fair hearing, the demolition would be considered against rule of law.

Conclusion

The bulldozer justice is violative of constitutionalism and rule of law; and results into failure of justice. The act of bulldozing the house of people without observing procedure laid down by law is against essence of democratic nation. The demolition drive led and protected by the state is not only against the basic principle of the constitution of the India but it is also against the morality and natural justice principle. The threating and the shocking part in these demolition drives is that it successfully gathered the support of the mass population of the country.  The people in India are celebrating these illegal and immoral acts of the authorities in the name of the religion. It is very painful and disheartened to say that authorities are targeting people of particular religion. The large groups of people are looking towards these demolition drives as the success and promotion of religion. These acts of authorities are directly violating the fundamental rights enshrined in the constitution of India. It is very difficult to say that the authorities are paying due respect to article 14, 19 and 21 of the constitution of India. The authorities are trying to become the judge and jury who want to decide matter on the spot in filmy way without observing the procedure lay down by the law.

References 

  1. Ananya Jain, Rule of Law and its Application in the Indian Polity, Volume 1 Issue3, 2018
  2. Wade and Forsyth, Administrative Law 17 (Oxford University Press 2023)
  3. Justice N. V. Ramana, Rule of law in democracy, http://www.scconline.com
  4. https://www.a-and-s-jurisprudentia.com/post/rule-of-law
  5. V. Dicey, Introduction to the Law of Constitution 20 (Oxford University Press 2013)
  6. Shubham Mongia, Rule of Law, LEGAL SERVICE INDIA (April 17, 2023, 7:00 AM), https://www.legalserviceindia.com/legal/article-719-rule-of-law.html
  7. Amitanshu Verma, Decoding ‘bulldozer justice’ deployed by BJP-led state govts to target activists and vocal critics, National Herald, (April 17, 2023, 7:30 A.M.), https://www.nationalheraldindia.com/india/decoding-bulldozer-justice-deployed-by-bjp-led-state-govts-to-target-activists-and-vocal-critics
  8. Devadatt Kamat, As bulldozer threats rise, what the Rule of Law says on demolitions, Deccan Herald, (April 17, 2009, 8:00 A.M), https://www.deccanherald.com/specials/sunday-spotlight/as-bulldozer-threats-rise-what-the-rule-of-law-says-on-demolitions-1103383.html
  1. https://scroll.in/article/1032417/khargone-businessmans-property-bulldozed-after-he-moved-court-against-earlier-demolition#:~:text=The%20previous%20day%2C%20two%20units,Court%20against%20the%20government’s%20actions.
  2. https://indianexpress.com/article/cities/delhi/supreme-court-stalls-jahangirpuri-demolition-7877969/
  3. https://timesofindia.indiatimes.com/city/allahabad/demolition-of-prayagraj-violence-accused-house-hc-gives-a-day-to-up-govt-pda-to-file-reply-on-plea/articleshow/92527413.cms
  4. https://indianexpress.com/article/india/days-after-communal-flare-up-crackdown-in-nuh-200-arrested-so-far-houses-demolished-8877269/
  5. Menaka Gandhi vs. union of India, 1978 AIR 597
  6. Municipal Corporation., Ludhiana v. Inderjit Singh, (2008) 13 SCC 506

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