Omar Rashid 
New Delhi: In a scathing indictment of the so-called ‘bulldozer justice’ prevailing in the country, the Supreme Court on Wednesday (November 13) ruled that it was “totally unconstitutional” to demolish a person’s house without due process of law merely because they were accused or convicted in a criminal case.
These actions amounted to a “lawless state of affairs” the Supreme Court noted, also stressing that if an accused or convicted person’s family house was demolished it inflicted a “collective punishment” on the entire family.
The apex court stated that the executive cannot declare a person guilty and if it demolishes someone’s property only on the basis of accusations, without following due process of law, it would “strike at the basic principle of rule of law and is not permissible.”
While issuing a detailed process on how to go about demolitions lawfully across the country, the court stressed that if the demolition was found to be in violation of its orders, the concerned officer or officers would be held responsible for restitution of the demolished property at his or her personal cost in addition to payment of damages.
A bench of Justices B.R Gavai and K.V. Vishwanathan observed, “The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where ‘might was right’.”
The apex court’s stern ruling comes in the backdrop of ruling governments, particularly those led by the Bharatiya Janata Party (BJP), sanctioning and glorifying the use of bulldozers to demolish the homes and business establishments of persons accused of crimes. BJP leaders – like Uttar Pradesh chief minister Yogi Adityanath, who has made demolitions a key part of his personal political narrative as ‘bulldozer baba’ – have also regularly sought votes in the name of these hastily-conducted illegal demolitions, which have targeted religious minorities, political opponents as well as ordinary citizens.
Just last week, Adityanath, seeking votes for the saffron party in Koderma, Jharkhand, boasted about the impact that demolitions had in UP. “Prior to 2017, the mafia would walk around UP with the chests pumped. But after 2017, when bulldozers started being used, even the most dreaded mafia left the lands of UP. Today, some are in jail while others have embarked on a ‘ram naam satya hain’ yatra,” said Adityanath.
Delivering a blow to this trend, the Supreme Court noted that the executive “cannot become a judge and decide that a person accused is guilty.” If the executive punishes such a person by demolishing his or her residential or commercial properties, such an act would be transgressing its limits,” the court said.
Justice Gavai, who authored the 95-page judgment, said that the “high-handed and arbitrary actions” of officials demolishing properties without following due process and principles of natural justice had no place in the constitution, which rests on the foundation of ‘the rule of law’.”
“Such excesses at the hands of the executive will have to be dealt with the heavy hand of the law. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law,” the Supreme Court said.
Also read: Bulldozers in the Modi Decade: A Symbol of Quick ‘Justice’ and Collective Punishment
The court also considered, in detail, the question of the right to shelter and the impact of such demolitions on entire families. How could an accused person’s spouse, parents or children who lived with him or her in the same house be penalised by demolishing the property without them even being involved in any crime simply on the basis of their relationship with the accused person, the court asked. Punishing family members who have no connection with the crime by demolishing the house where they live in or properties owned by them was “nothing but an anarchy” and would amount to a violation of the right to life guaranteed by the Constitution, the bench said.
It would be like “inflicting a collective punishment on the entire family or the families residing” in a house if the demolition of the property is allowed on the grounds that one of those residing in it is either an accused or convicted in the crime, the court said.
The Supreme Court also addressed an important question regarding instances where people freshly accused of crime also turned out to be violating municipal laws. This has a bearing on the way illegal demolitions have been sanctioned by the governments where a person accused in a high-profile crime is immediately issued a notice of illegal construction, which remarkably comes to light only when they are booked in a criminal case, unrelated to the construction.
Arguing on this point, Tushar Mehta, the solicitor general of India, said in some cases it was “sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to accused persons.
The counsel for the petitioners, however, argued that the chain of events clearly depicts that the demolition of the houses was an immediate reflection of the persons being implicated in crimes. The time gap between the person being named as an accused and the demolition their property made it apparent that the punishment of demolition was inflicted by the executive on such person being arraigned as an accused, they argued. It was also difficult to believe that only a single construction belonging to an accused was an unauthorised whereas all others structures in the vicinity were legal and authorised as per local laws, the petitioners submitted.
The court accepted Mehta’s view that in some cases there may be a “sheer coincidence” but noted that when a particular structure was chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity were not touched, mala fide may loom large.
“In such cases, where the authorities indulge into arbitrary pick and choose of the structures and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalising the accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalise a person accused by demolishing the structure,” the Bench said.
The court also held that government officials who take the law into their own hands and arbitrarily demolish citizens’ houses solely on the grounds that they are accused of a crime violate the principle of separation of powers. Accountability “must be fastened” upon public officials who engage in such acts. The judges laid down certain directives to prevent arbitrary government action and ensure that public officials do not act in a “high-handed and discriminatory” manner. One of these directives provides more time for those served with demolition notices to challenge them at an appropriate forum.
“It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens would not fall on the authorities if they hold their hands for some period,” said the court. The judges, however, clarified that these directions would not be applicable to cases of unauthorised structures in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a court of law.
No demolition should be carried out without a prior show-cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, the court said. To ensure that there is no backdating of notices, as soon as the show cause notice is served, an intimation would have to be sent by email to the office of the concerned district magistrate who would have to acknowledge the mail through an auto-generated reply.
The person who has been served the notice would be given a personal hearing by the designated authority and the minutes of the meeting would be recorded. The final order issued by the concerned authority would have to contain the contentions of the notice and if the authority disagrees with them. The authority would also have to state if they thought the unauthorised construction was compoundable and if not, why so. Finally, the authority would have to explain why the “extreme step of demolition” was the only option available and why other options such as compounding of the property or demolishing only part of it were not possible.
The top court in its order also mentioned paragraphs from a recent judgment concerning dignity of prisoners on a petition filed by The Wire journalist Sukanya Shantha, to reiterate the constitution rights of accused persons.