Logic of legalising the illegal

Logic of legalising the illegal

The court has disregarded how such large-scale regularisations affect a citizen's fundamental right to a healthy environment.

The Akrama Sakrama scheme of the Karnataka government has been in the eye of a legal storm for many years. This storm seems to have rested for now as the Karnataka High Court recently dismissed a set of Public Interest Litigations (PILs) challenging the constitutionality of the scheme.

A division bench comprising Chief Justice S K Mukherjee and Justice R B Budihal upheld the validity of Karnataka Town and Country Planning Act and Certain Other Laws (Amendment) Act, 2004 and subsequent legislations and rules which provide for the regularisation of certain unauthorised constructions and developments. We need to see how the state plans to implement the scheme and whether any appeal is filed against the decision.

The scheme enables violations of set-back norms, Floor Area Ratio (FAR) and land use conversion to be legalised by paying a regularisation fee. Violation to setback and FAR norms to the extent of 50% in case of residential buildings and 25% in case of non-residential buildings can be regularised. It also enables regularisation of land use violations which shall “as far as may be” in accordance with other provisions of the Karnataka Town and Country Planning (KTCP) Act.

After the HC stayed the scheme in 2007, the state passed amendments in 2009 and 2013 and also issued rules to implement the scheme in 2014. The constitutionality of these amendments and rules were challenged by the Citizens Forum for Mangalore Development and other citizens’ groups.

The petitioners contended that the scheme violated Article 14 (Right to Equality) and Article 21 (Right to Life) of the Constitution. It was argued that the scheme infringes Article 21 as it violated the right to a healthy and planned environment which is an essential part of right to life. The Supreme Court has held in multiple cases that large-scale regularisation of illegal constructions would infringe upon the right to environment.

However, the judgment has not given much attention to this contention nor distinguished the Akrama Sakrama scheme from these cases. The petitioners also argued that the scheme infringes the right to equality under Article 14 since it favoured those who have violated the law and discriminated against those who adhered to the law. While the court has rejected this contention, it has not explained how such a classification is reasonable under Article 14.

The contention of the petitioners that the scheme gave excessive and unbridled power to the executive was also turned down by the court. It pointed out that the amendments provide certain conditions for regularisation which ensures that health and safety measures are not compromised. Since only buildings that comply with these conditions can be regularised, the court held that the power granted to the government cannot be said to be excessive.

The court also rejected the contention that the regularisation fee and cut-off period fixed by the state was arbitrary. Since the state conducted a survey regarding the extent of unauthorised constructions, the court held that there was a scientific basis and proper application of mind by the legislature while bringing the amendment. However, the survey which the court has cited to justify a scheme applicable across all urban areas in Karnataka is a random sample survey carried out in just four of the 198 wards in the BBMP. Also, the survey was carried long after the scheme was designed.

Why judicial restraint?
It is clear from the judgment that the court has essentially taken a path of least resistance and deferred to the wisdom of the government. In fact, the judgment stated that “the Court cannot interfere into the policy matters of the government” and that only the legality of a policy and not the wisdom or soundness of a policy can be subject to judicial review.

However, courts do not show such judicial restraint when it ventures into policy matters and sundry issues — from the administration of cricket to imposing national anthem in theatres. Also, Akrama Sakrama cannot be dismissed as a mere policy matter since the challenge was to legislative amendments that directly affect the fundamental rights guaranteed under the Constitution.

Citing the high number of buildings with violations, the HC stated, “If all such buildings are ordered to be demolished, firstly, there is national waste and secondly, the persons who lost their buildings in such operation would become homeless and actually, they will be on streets.” While demolition of all unauthorised construction may pose practical problems, enabling large-scale regularisation of illegal constructions by paying a small fee is certainly not the solution. Such a move regularises not just minor deviations but also deliberate violations carried out by big developers which ought not to be condoned under any circumstances.

The Akrama Sakrama scheme is symptomatic of the Indian state’s muddled approach to regulating urban spaces. While urban areas are ostensibly governed by an elaborate set of planning, zoning and building regulations, the reality of our cities’ built environment tell a different story.

Here, laws are seen as flexible guidelines for people to negotiate rather than as edicts of the state that have to be strictly adhered to. The state is a key participant in constituting this urban reality, either by active connivance or benign neglect. The state’s de facto disregard of the law is taken a step further when it de jure declares the illegal to be legal.

The Akrama Sakrama scheme renders the existing urban planning processes redundant and destroys the very object of planned development envisaged by the KTCP Act. The provision for regularisation of land use violations is particularly vague thereby giving the government wide discretionary powers.

In upholding the scheme, the court has legitimised the government’s topsy-turvy planning practices and disregarded how such large-scale regularisations affect a citizen’s fundamental right to a healthy environment. The judgement hence merits reconsideration.

(The writer is with Centre for Law & Policy Research, Bengaluru, and was part of the litigation team which represented some petitioners in the case)