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”.
On 13 November 2024, The Supreme Court of India through the bench of Justice BR Gavai and K. Viswanathan delivered an important judgment against Bulldozer action by the state.
Background
Writ Petitions were filed before the Supreme Court of India under Article 32 of the Constitution of India seeks to raise the grievance on behalf of various citizens whose residential and commercial properties have been demolished by the state machinery, without following the due process of law, on the ground of them being involved as an accused in criminal offences.
The petitions inter alia seek a direction to the Union of India and the concerned States directing them that no precipitative action be taken in respect of residential or commercial properties of any accused in any criminal proceedings.
It has also been prayed that a direction be issued for strict action to be taken against the officials of the state machinery who have participated or participate in future in such an illegal exercise of demolition.
Vide order dated 17th September 2024, The Supreme Court directed that, “there shall be no demolition anywhere across the country without seeking leave of this Court”. However, The Court clarified that, “our order would not be applicable if there is an unauthorized structure 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”.
Analysis
The Supreme Court analysed the matter with keeping in view the Rule of Law in constitutional democracy, the doctrine of public trust and public accountability, Presumptions of innocence in criminal law, right of the accused under the constitution, and right to shelter.
Supreme Court, therefore, observed that Supreme Court can issue a direction to the executive and also formulate guidelines for facilitation and in furtherance of fundamental rights and sometimes for the actualization and fructification of statutory rights.
Accountability of the Public Officials
The court considered the question as to whether when the adjudicatory functions are entrusted to the judiciary, can the officers of the State Government take upon themselves the adjudicatory function and without a person undergoing a trial be inflicted with a punishment of demolition of his properties. While expressing its views on this question, the court said, such a situation would be wholly impermissible in our constitutional set up. The executive cannot replace the judiciary in performing its core functions.
If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are accused of a crime, then it acts contrary to the principles of ‘rule of law’. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of ‘separation of powers’. Therefore, the court was of the view that in such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions.
For the executive to act in a transparent manner so as to avoid the vice of arbitrariness, the court was of the view that certain binding directives need to be formulated. This will ensure that public officials do not act in a high-handed, arbitrary, and discriminatory manner. Further, if they indulge in such acts, accountability must be fastened upon them.
The Executive cannot become a Judge
The court said, the rule of law, the rights of the citizens guaranteed under the Constitution, and the principles of natural justice would be essential requirements. If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, that too without following the due process as prescribed by law, in our considered view, it will be totally unconstitutional for more than one reason.
Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is not permissible. The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits.
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”.
In our constitution, which rests on the foundation of ‘the rule of law’, such high-handed and arbitrary actions have no place. 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.
Such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law. Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law.
It is to be noted that even in the cases consisting of imposition of a death sentence, it is always a discretion available to the courts as to whether to award such an extreme punishment or not. There is even an institutional safeguard in the cases of such punishment to the effect that the decision of the trial court inflicting death penalty cannot be executed unless it is confirmed by the High Court.
Even in the cases of convicts for the commission of most extreme and heinous offences, the punishment cannot be imposed without following the mandatory requirements under the statute. In that light, can it be said that a person who is only accused of committing some crime or even convicted can be inflicted the punishment of demolition of his property/properties? The answer is an emphatic ‘No’.
The Right to Shelter
While emphasising the aspect of Right of Shelter, the court said,
“There is another angle to this problem. It is not only the accused who lives in such property or owns such property. If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged accused person? What is their mistake if their relative is arrayed as an accused in some complaint or F.I.R.?
As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution.
The right to shelter is one of the facets of Article 21. Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional.
If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available.
Though the learned SG may be right in submitting that in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the accused persons, however, when a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being 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 penalizing 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 penalize a person accused by demolishing the structure.
While considering the issue with regard to the demolition of the houses which are required to be demolished for breach of the local laws, we find that the principle of the rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions which could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate.
It is also to be noted that the construction of a house has an aspect of socio-economic rights. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one’s head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available
Right to life is a fundamental right. The right to shelter has also been considered as one of the facets of Article 21 of the Constitution. In one structure, various people or maybe even a few families could reside. The question that is required to be considered is, as to whether if only one of the residents of such a structure is an accused or convicted in a crime, could the authorities be permitted to demolish the entire structure thereby removing the shelter from the heads of the persons who are not directly or indirectly related with the commission of crime.
It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. In our view, if demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an accused or convicted in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same.”
After discussing the matter, the court made some points,
Firstly, even the accused or the convicts have certain rights and safeguards in the form of constitutional provisions and criminal law.
Secondly, the State and its officials cannot take arbitrary and excessive measures against the accused or for that matter even against the convicts without following the due process as sanctioned by law.
The third principle that would emerge is that when the right of an accused or a convict is violated on account of illegal or arbitrary exercise of power by the State or its officials or on account of their negligence, inaction, or arbitrary action, there has to be an institutional accountability.
One of the measures for redressing the grievance for violation of a right would be to grant compensation. At the same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power.
Directions issued by the Supreme Court in the matter of Demolition of Structure
In its judgment, the Court issued following elaborated directions against Bulldozer Actions by using the power under 142 of the Constitution-
- We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum.
- We are further of the view that even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. 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.
- At the outset, we clarify that these directions will not be applicable if there is an unauthorized structure in any public place such as road, street, and 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.
A. NOTICE
i. 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, whichever is later.
ii. The notice shall be served upon the owner/occupier by a registered post A.D. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.
iii. The time of 15 days, stated herein above, shall start from the date of receipt of the said notice.
iv. To prevent any allegation of backdating, we direct that as soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate.
The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month from today.
v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the grounds of demolition.
c. a list of documents that the noticee is required to furnish along with his reply.
d. The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place;
vi. Every municipal/local authority shall assign a designated digital portal, within 3 months from today wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.
B. PERSONAL HEARING
i. The designated authority shall give an opportunity of personal hearing to the person concerned.
ii. The minutes of such a hearing shall also be recorded.
C. FINAL ORDER
i. Upon hearing, the designated authority shall pass a final order.
ii. The final order shall contain:
a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof;
b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor;
c. if the designated authority finds that only part of the construction is unauthorized/noncompoundable, then the details thereof.
d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.
D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL SCRUTINY OF THE FINAL ORDER
i. We further direct that if the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof. The order shall also be displayed on the digital portal as stated above.
ii. An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days. Only after the period of 15 days from the date of receipt of the notice has expired and the owner/occupier has not removed/demolished the unauthorized construction, and if the same is not stayed by any appellate authority or a court, the concerned authority shall take steps to demolish the same. It is only such construction which is found to be unauthorized and not compoundable shall be demolished.
iii. Before demolition, a detailed inspection report shall be prepared by the concerned authority signed by two Panchas.
E. PROCEEDINGS OF DEMOLITION
i. The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. Video recording to be duly preserved.
ii. The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal. Needless to state that the authorities hereinafter shall strictly comply with the aforesaid directions issued by us. It will also be informed that violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution.
The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.
Reference
In Re: Directions in the matter of Demolition of Structures (2024)