Bulldozer demolitions stark example of executive excess: Supreme Court Justice BV Nagarathna

Supreme Court judge Justice BV Nagarathna recently praised the recent judgment of the apex court condemning bulldozer demolitions employed by State authorities as a punitive measure against accused persons.

The demolition of accused persons' properties before judicial adjudication, is a stark example of executive overreach in recent years, she said.

The recent Supreme Court decision had held that State authorities cannot demolish the house of an individual accused or convicted of a crime solely on the basis of their criminal background. Such bulldozer actions were deemed illegal and unconstitutional.

"This is one stark example of executive excesses in recent years," said Justice Nagarathna.

Justice Nagarathna was delivering the Justice S Natarajan Centenary Memorial Lecture in Chennai.

In her speech, Justice Nagarathna also questioned the composition of various tribunals.

She observed that while tribunals might provide opportunities for retired judges to stay engaged, questions arise about the composition of these bodies, particularly regarding the qualifications of their technical or other members.

"In the era of tribunalisation, the constant refrain is that Executive trenches into the area of adjudication and therefore accused of usurping judicial functions by appointing persons with executive bias....The reason is that tribunals were created to unload the pressure on high courts. Initially it started with the service tribunals, central administrative tribunals and that experiment has failed in certain states and matters have gone back to high courts. Then it went on from one tribunal to another and no doubt in some cases a tribunal may be a good opportunity for a retired judges to have a rehabilitation but at the same time who are the members technical or otherwise is the question," said Justice Nagarathna.

She also stated that in matters where sole discretionary powers are vested with the President of India or Governor of states, the satisfaction of the authority does not mean personal satisfaction.

"Satisfaction of President and Governor is not their personal satisfaction or anybody else's satisfaction vicariously arrived at. I may say it is the satisfaction in the constitutional sense particularly when the aid and advice of council of ministers is not contemplated and when sole discretionary powers are stipulated," said Justice Nagarathna.

Justice Nagarathna also batted for checks and balances in the lawmaking power of the President and Governors.

"Such is the friction between political incentives and constitutional methods that in a contrary landscape checks and balances are needed even on the lawmaking power of President and Governors acting on the aid and advice of council of ministers," said the judge.

Justice Nagarathna also did not mince words when she stated that several governments have abused the power of re-promulgating ordinances.

"Finding a convenient path to lawmaking sans legislative approval several govts have abused the power of repromulgating ordinances. The famous case of DC Wadhwa, Supreme Court frowned upon the practice of ordinances kept alive from periods ranging from 3 to 14 years merely by re promulgation and apex court called it ordinance raj," she said.

The judge, who is also slated to be the first woman Chief Justice of India, stated that democracy must account for divergent opinions and not one single popular opinion.

"With all humility I think it is reductive. The process of democracy in my opinion is also to refine and elevate public opinion from all angles and viewpoints. One public opinion cannot be applied to all ... Ultimately public opinion is also about arriving at a consensus by taking the best from a variety of ideas which emerge at a particular point of time. That is why in a true democracy, there cannot be scuttling of divergent opinion nor a curb on ideas which are contrarian," said the judge.