The Supreme Court passed an important judgement on Wednesday to try and stop so-called bulldozer justice or the arbitrary demolition of homes of people accused of a crime.
The judgment’s unequivocally rules these extra-judicial demolitions are illegal. It provides detailed guidelines for municipal authorities to follow when demolishing any property as well as fixes personal responsibility on offficers carrying out demolitions.
The judgment is significant for being the first final order against a spate of illegal demolitions that have gripped many states. However, it leaves significant gaps for authorities to still arbitrarily demolish homes since it does not apply to alleged encroachments on public land.
Background of the case
There are no provisions in Indian law that allow for demolishing property as a punitive measure. Nevertheless, the practice has become commonplace, mainly in states ruled by the Bharatiya Janata Party. The authorities in four BJP-ruled states and one Aam Aadmi Party-governed state punitively bulldozed 128 structures, mostly belonging to Muslims, between April and June 2022, human rights group Amnesty International said in a report in February.
In 2022, three public interest litigation petitions were filed in the Supreme Court against this. On September 17, as part of an interim order, a bench of Justices BR Gavai and KV Viswanathan temporarily stayed demolitions across the country. However, the order did not apply to unauthorised constructions on public roads, footpaths, railway lines or public places. Even after the order, though, extra-judicial demolitions took place in Assam and Gujarat in September. The Supreme Court eventually stayed the demolitions in Assam but refused to intervene in Gujarat.
The bench reserved its judgement in the matter on October 1.
The court’s reasoning
In its verdict, written by Gavai, the bench referred to a number of legal principles and constitutional protections to arrive at its conclusion: that the executive branch of the government cannot hold someone guilty of an offence and demolish their residential or commercial property as punishment. It further held that such actions cannot be taken against those convicted of an offence either without following the prescribed legal process.
Gavai referred to the principle of rule of law – the broad legal principle encompassing that that no one is above the law of the land and that everybody is equal before the law – to hold that state action must be governed by established legal principles rather than arbitrary discretion of municipal authorities.
Gavai also referred to the constitutional principle of separation of powers. The executive cannot take upon itself the judiciary’s core adjudicatory function of determining guilt or handing out punishment.
He also relied on the doctrine of public trust – the view that the executive exercises its powers as a “trustee” of citizens – to hold that the principles of public accountability and transparency are applicable to the exercise of government power. For inaction or irresponsible actions, responsibility should be fixed on erring officers, the judgement said.
Gavai’s judgement further relied on the rights of accused: their right to dignity, protection from cruel or inhumane treatment and to punishment in accordance with law. It referred to the presumption of innocence under criminal law, the principle that an accused cannot be declared guilty unless proven so beyond reasonable doubt before a court.
The judgement also included in its ambit the rights of the family members of the accused, whose homes have been demolished as well. It emphasised their right to shelter, protected by Article 21 of the Constitution. It also noted that demolishing a house because one resident is accused or convicted of a crime inflicts collective punishment on the entire family. This is not allowed under India’s constitutional framework.
Debunking excuses
In the course of the hearings, the Solicitor General of India, on behalf of the Union government and various state governments, had argued that the demolition actions were taken against those guilty of encroaching on public land or violating municipal laws. That some of those whose properties were demolished were also accused of offences was entirely co-incidental, he had submitted.
The court rejected this argument. Gavai’s judgement held that if only one among several structures is singled out for demolition, it suggests mala fide or dishonest intent. This could lead to the presumption that the real motive was punishing an accused without trial. It is up to the authorities to prove that there was no intent to penalise the accused, the court said.
The order also held that authorities must not resort to demolition if the unauthorised structures can be regularised or partially removed.
Directions passed
The bench passed detailed directions on the procedure to be followed by municipal authorities to conduct demolitions.
No demolition should occur without a show cause notice served at least 15 days in advance. A personal hearing must also be provided to the person whose property is proposed to be demolished. The final order should include the noticee’s arguments, reasons for any disagreement, whether the construction could be legally regularised and justification for full demolition in case partial measures aren’t feasible.
The order must not be executed for 15 days to allow for appeals. If any unauthorised construction is not removed by the owner within 15 days, the authorities may proceed with the demolition, provided there is no stay from a higher authority.
If the affected party does not challenge the order, it must be given sufficient time to vacate and manage their affairs. The demolition must also be video-recorded and a report listing officials involved should be submitted to the municipal commissioner and posted publicly. Videos must be preserved for records.
Finally, any officer conducting an unlawful demolition would bear personal responsibility for restoring the property and paying damages.
Why the verdict may fall short
While the order was thorough, the court created a conspicuous exception. It held that the directions do not apply to unauthorised structures on public places like roads, footpaths or near water bodies, or when a court has ordered demolition.
This is the same exception that the court had carved out in its interim stay order passed in September. In the wake of that order, many demolitions had continued under the guise of removing encroachments from public places.
Often, municipal authorities have carried out punitive demolitions on the pretext of removing structures built on footpaths.
Scroll’s reporting has shown that the Uttarakhand government appears to have selectively targeted Muslim places of worship over the last two years on the pretext of removing encroachments from government land and public spaces.
The judgement also does nothing to address the hundreds of demolitions that have taken place while the petitions were pending before the Supreme Court – either in terms of providing compensation to the victims of the demolitions or fixing accountability on errant officers. These demolitions have been acknowledged by the court to have been unconstitutional.
