New Delhi: The Supreme Court has said that reviewing and assessing the implementation of a statute is an integral part of "rule of law" and emphasised that "adapting to change is important for achieving justice, as failure to adapt produces injustice", which is an abuse of power.
A bench comprising Justices PS Narasimha and Aravind Kumar, in a significant verdict delivered on Tuesday, asked the Bombay High Court to conduct a performance audit of a 1971 Maharashtra law on slum redevelopment. Justice Narasimha, who authored the judgment on behalf of the bench, said over 1,600 cases are pending in the High Court and statutory schemes and procedures, for the welfare legislation for the poor, are gridlocked in bureaucratic or judicial quagmires that impede or delay statutory objectives.
Justice Narasimha said the statutory scheme is problematic with respect to: identification and declaration of land as a slum, identification of slum dwellers, selection of a developer, apportionment of the slum land between redevelopment area and sale area, obligation to provide transit accommodation for the slum dwellers pending redevelopment etc.,
The bench said the above-referred problems arising out of the statutory scheme and policy framework should have come under review by Maharashtra and stressed, “reviewing and assessing the implementation of a statute is an integral part of Rule of Law”.
The bench said it is in recognition of this obligation of the executive government that the constitutional courts have directed governments to carry out a performance audit of statutes.
Justice Narasimha said four aspects for achieving justice are well founded and articulated as, i) distribution of advantages and disadvantages of society, ii) curbing the abuse of power and liberty, iii) deciding disputes and, iv) adapting to change.
"Adapting to change is important for achieving justice, as failure to adapt produces injustice and is, in a sense, an abuse of power. Thus, failure to use power to adapt to change is in its own way an abuse of power," he said in the 43-page verdict.
The top court asked the Chief Justice of the High Court to set up a bench to "initiate suo motu proceedings" to review the working of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 to identify the problems faced in its implementation.
"The Executive branch has a constitutional duty to ensure that the purpose and object of a statute is accomplished while implementing it. It has the additional duty to closely monitor the working of a statute and must have a continuous and a real time assessment of the impact that the statute is having...reviewing and assessing the implementation of a statute is an integral part of Rule of Law," said the bench.
The bench said the judiciary has another role to perform and that is of a facilitator of access to justice and effective functioning of constitutional bodies, and stressed, "in this role, the judiciary does not review executive and legislative actions, but only nudges and provides impetus to systemic reforms".
The bench further said the traditional perception of the constitutional role of writ courts was confined to judicial review of executive and legislative action, and in that role, the courts were to decide the vires of the legislative and executive actions based on constitutional parameters.
"Not only have the tools of judicial review been reinvented (the rise of the proportionality and arbitrariness doctrines) but also the breadth of the judicial power has substantially expanded to areas that were hitherto forbidden (review of policy decisions, constitutional amendments and continuing mandamus being prime examples). However, even this expansive reading of judicial review does not capture the essence of the judicial branch in its entirety," said Justice Narasimha.
Justice Narasimha said a peculiar feature of how our legislative system works is that an overwhelming majority of legislations are introduced and carried through by the government, with very few private member bills being introduced and debated. “In such circumstances, the judicial role does encompass, in this court’s understanding, the power, nay the duty to direct the executive branch to review the working of statutes and audit the statutory impact," he said.
The bench issued its directions while dismissing an appeal of 'Yash Developers' against the High Court verdict, which upheld cancellation of a slum-redevelopment project granted in its favour in 2003 for developing a slum in the suburban Borivali area of Mumbai. However, the project was unduly prolonged for over two decades and the agreement was terminated by the Apex Grievance Redressal Committee on August 4, 2021. The bench also imposed a cost of Rs one lakh on the appellant as there were more than 16 years of delay in executing the project.
Justice Narasimha said many statutory schemes and procedures are gridlocked in bureaucratic or judicial quagmires and added "this facilitative role the judiciary compels audit of the legislation, promotes debate and discussion but does not and cannot compel legislative reforms."
Ordering review of the functioning of the law, the bench referred to the National Judicial Data Grid (NJDG) data and it revealed that a total of 1612 cases, involving disputes arising under the Act, are pending before the High Court.
The bench said of these, 135 cases are more than 10 years old. "In the last 20 years, 4488 cases have been filed and disposed of under the said Act. Latest data from the Bombay HC reveal that about 923 cases on the Appellate side and 738 on the Original Side are pending adjudication," it said.
Justice Narasimha said the Act is a beneficial legislation, intended to materialise the constitutional assurance of dignity of the individual by providing basic housing, so integral to human life.
"However, the propensity and the proclivity of the statute to generate litigation are worrisome. There seems to be a problem with the statutory framework for realising the purpose and object of the statute," he said.
The bench said the executive has a constitutional duty to ensure that the purpose and object of a law is accomplished while implementing it, and it also has an additional duty to closely monitor the working of the law and must have a continuous and real-time assessment of the impact.
