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Saionton Basu
Saionton Basu

Saionton Basu is Partner & Co-Head India Group, Penningtons Solicitors LLP, London and Global Chair, Multilaw India Practice Group

The rule of law must prevail in Durga case

As Manmohan Singh said, the rules must be followed. It is now time for him to act.

All India Democratic Womens Association (AIDWA) members participate in a candle light march in support of suspended sub divisional magistrate Durga Shakti Nagpal, at the GPO in Lucknow on 3 August. PTI

ike most recent and not so recent national hullabaloos, the debate around the suspension of Gautam Budh Nagar Sub-Divisional Magistrate (SDM), Durga Shakti Nagpal has predictably followed the trajectory of heated television debates, Parliamentary pugilism, street protests and the customary PIL. What this all will translate into is also painfully clear — a long winded committee proceeding to examine charges and once the media vans start staking out the next piece of breaking news, gradually this will be sentenced for life to the media archives.

Having had the benefit of reading and listening in on some of these debates, one of the main fatalities in this skirmish appears to be the rule of law. Accordingly, it would be appropriate to start right with the charge against SDM Nagpal. Battalions of Samajwadi Party (SP) leaders have spoken in unison about her orders to demolish the boundary wall of an SP funded under construction mosque in Kadalpur village of Greater Noida without first obtaining authorisation from her superiors. It is suggested that such an action on Nagpal's part would have endangered communal peace and harmony. Equally, other voices claim Nagpal had not ordered the demolition and villagers themselves razed the boundary wall. Assuming and only assuming, that indeed the demolition of an allegedly illegal construction was the only cause for this step, even this requires to be considered on the touchstone of the rules applicable.

Two key issues arise at this stage: (1) Did SDM Nagpal as a matter of law require the pre-authorisation of her superior and by implication the district magistrate to demolish the boundary wall? (2) Were the rules of natural justice observed by the SP government in issuing her suspension order and thereby immune from a judicial challenge?

One of the principal responsibilities of the SDM is the maintenance of law and order within the jurisdictional limits and, by inference, ensure that directions of the Supreme Court are adhered to in letter and spirit. The Supreme Court has on multiple occasions ordered the razing of illegal religious structures on public property and in fact on 30 August 2013 will be taking a further status update from each of the states and union territories. Therefore, if indeed, the wall in question was an illegal encroachment on public land, SDM Nagpal appears to be protected by the Supreme Court orders.

The only oddity that needs further elaboration is whether her superior, the district magistrate, needed to have green flagged that operation. In general, SDMs across the country are vested with the authority to act as executive magistrates under the Criminal Procedure Code, which confers them the authority to carry out such operations as an instrument of the state without further orders from the superior officer. Put another way, an SDM is wholly empowered under the law of the land to implement orders of the Supreme Court using her "own best judgment," to use the words of the statute governing officers like Nagpal's conduct. Further, the same statute asks of officers like Nagpal not to adopt "dilatory tactics," which read with the Supreme Court directions to act "expeditiously" to remove illegal religious structures appears to be well in line with what her alleged actions were. Given the situation that has arisen, it is highly unlikely that the SP government will be able to sustain their charges against SDM Nagpal on this count alone in the event of a judicial challenge.

It appears, Nagpal was served the suspension order on 27 July 2013 and a chargesheet detailing the points of inquiry against her was issued several days later. Usually, unless there are severe supervening circumstances, an order of suspension can only be passed once articles of charge have been drawn up by the respective government. The haste in which this case seems to have proceeded and the helpful background noise of a particular SP worker caught on tape do suggest a short circuit in the due process, which needs to be followed in all such cases. Accordingly, yet again, it is likely that the SP government's action would be deemed as arbitrary and violative of principles of natural justice by a competent court.

Whilst, the above two key issues, given the facts that have emerged in the media, appear to be inclined in Nagpal's favour on the merits, the unhurried pace of our judiciary in the event a judicial challenge were mounted promises the equivalent of watching a 25-day test match. Nagpal can choose to appeal to the Central government against her suspension order and if the peremptory salutations being provided to the media were to mean anything the Central government can overrule the SP government on this count.

Assuming that Nagpal were to get her position restored to her through an admixture of either a judicial or Central government intervention, what are the chances that she can perform to her potential till the SP government is holding the reins of the state? There are numerous well known methods to undermine the efficacy of well-intentioned civil servants and after this well publicised episode some of the state honchos will be brushing up on their principles of service law. In this event, the Central government holds the power either to change the cadre (meaning to serve in some other State or Union Territory) of such an officer or order the deputation of the concerned officer to a Central government institution. These are both real options enshrined in the law and not frequently adopted to insulate well intentioned officers from politically queer state governments. Therefore, in many ways, the ball is now squarely in the Central government's court.

I am not sure anyone realised that the scheme of the legislation governing IAS officers confers the ultimate decision making power in many aspects such as discipline, conduct and cadre on the Central government and therefore real time justice for SDM Nagpal can come from the Central government in this case.

Without going into the larger question of administrative reforms, tomes about which have been written, I have tried to present what is possible to be attained in SDM Nagpal's case in a reasonable space of time. Of course, the facts will be questioned as they should be, but the key lies in moving the process along efficaciously towards a just end rather than broker some sort of peace with SDM Nagpal. As Prime Minister Manmohan Singh said, the rules must be followed. It is now time for him to act.

Saionton Basu is a Partner at Penningtons Solicitors LLP, London and Global Chair Multilaw India Practice Group.

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