How the Supreme Court clamped down on ‘bulldozer’ demolition drives | Explained

The top court has issued a slew of guidelines aimed at ensuring institutional accountability to curb retributive demolitions by state authorities

The Supreme Court on Wednesday (November 13, 2024) underscored that it is unconstitutional to demolish a person’s property without adhering to the due process of law, simply on the grounds of their alleged involvement in a crime. A Bench of Justices B.R. Gavai and K.V. Viswanathan issued a slew of guidelines to prevent illegal and retributive bulldozing of homes and private properties of accused persons by States. Earlier, the top court had extended its interim order halting demolitions across the country without express permission except for encroachments on public land or unauthorised structures.

Rising punitive demolitions

Over the last few years, there has been an advent of communal and retributive bulldozing of homes and private properties of accused persons by States. In each of these cases, demolitions have been justified on account of action against encroachment or under the pretext of unauthorised construction. Such state-sanctioned acts of punitive violence have also been endorsed by several leaders of the ruling BJP and Hindutva supporters, who have hailed them as a form of “instant justice.”

What began with the bulldozer demolitions in Delhi’s Jahangirpuri in 2022 rapidly escalated and spread to other parts of the country. The violence that ensued in Nuh, Haryana, due to a clash between two religious groups in 2023, ended with the local administration demolishing a large number of homes in the neighbourhood. Similarly, communal riots in Khargone, Madhya Pradesh, led to the demolition of houses and businesses owned by Muslims, who were deemed to be “alleged rioters.”

According to a 2024 estimate by the Housing and Land Rights Network (HLRN), authorities at the local, State, and central levels demolished 153,820 homes in 2022 and 2023, displacing over 738,438 individuals across rural and urban areas of the country. Additionally, a report published in February by human rights group Amnesty International revealed that authorities in four BJP-ruled States and one Aam Aadmi Party-governed State demolished 128 structures—primarily belonging to Muslims—between April and June 2022.

The court’s verdict was delivered in response to a batch of petitions challenging demolition drives conducted by State governments in Rajasthan and Madhya Pradesh. These petitions were clubbed with another petition filed by Jamiat Ulama-i-Hind, a Muslim organisation, challenging the demolitions carried out in Jahangirpuri. On September 2, the two-judge Bench conveyed the intention to frame pan-India guidelines to address the petitioners’ concerns by invoking its inherent powers under Article 142 of the Constitution.

‘Rule of law’

At the outset, the court asserted that constitutional ethos strictly prohibits the demolition of properties belonging to individuals, whether accused or convicted, without due process of law. It further underscored that such exercise of arbitrariness by government officials strikes at the very heart of the “rule of law” and undermines public trust. Cautioning against the executive usurping the judiciary’s role by preemptively punishing the accused, Justice Gavai observed, “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.”

Notably, the judges acknowledged that demolition drives not only target the alleged perpetrators of an offence but also impose a form of “collective punishment” on their families by destroying their place of dwelling. Justice Gavai pointed out that this offends the constitutional guarantee of the right to shelter under Article 21. “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? As is well known, a pious father may have a recalcitrant son and vice versa,” he candidly observed.

Addressing the petitioners’ concerns about retributive demolitions, Justice Gavai observed that if a particular property is singled out for demolition while other similar structures in the vicinity remain untouched, it raises a strong inference of mala fide intent on the part of the State. Without mincing words, he stressed that the “true motive” behind such actions appeared to be a deliberate attempt to punish the accused without affording them the opportunity for a fair trial in a court of law.

Guidelines issued

The top court issued comprehensive guidelines aimed at fostering greater institutional accountability. However, it clarified that these directives would not apply to unauthorised constructions on public lands—such as roads, water bodies, or forested areas—or to demolitions mandated by a court. To curb potential State impunity, the judges specified that officials responsible for carrying out illegal demolitions would face disciplinary action, contempt charges, and monetary penalties. Furthermore, it directed that compensation for wrongful demolitions may be directly recovered from such erring officials.

Recognising the need to provide affected parties with adequate time to arrange alternative housing and challenge the demolition order, the court mandated that no demolition drive should proceed without a 15-day prior notice. Such notice should be served on the house owner by registered post and must provide details of the nature of the unauthorised construction, details of specific violations and grounds warranting such a coercive action. Further, the designated authority has been ordered to extend an opportunity of personal hearing to the owner. The minutes of such a meeting are directed to be duly recorded with the final order detailing the contentions of the parties including whether the unauthorised construction is compoundable, or whether there is a need to undertake demolition of the entire structure. Additionally, the concerned authority must prepare a detailed inspection report, signed by at least two witnesses, before proceeding with the demolition drive.

The judges further directed the authorities to ensure that the entire demolition process is thoroughly videographed. Following this, a detailed demolition report must be prepared, specifying the names of the police officials and personnel involved in the operation. The report was also ordered to be placed before the Municipal Commissioner and uploaded on a digital portal to ensure public accessibility.

“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. ”Justices B.R. Gavai and  K.V. Viswanathan In Re: Directions in the matter of demolition of structures (2024)

Fixing accountability

According to Mr. Alok Prasanna Kumar, Co-Founder and Lead at the Vidhi Centre for Legal Policy in Bengaluru, the guidelines possess the legal teeth necessary to put an end to the practice of retributive demolition drives. “The verdict will compel officials to think twice before blindly following the orders of the political class to demolish houses to “send a message”, he notes. He further highlights that holding government officials personally liable will serve as a strong deterrent against such coercive measures.

There is, however, some skepticism that a culture of impunity may still persist, particularly given that the court’s previous attempts to frame guidelines addressing issues like hate speech and mob lynching have not yielded significant results. “Ultimately, the effectiveness of these measures will depend on how swiftly and effectively the district courts and High Courts implement these directions and ensure their compliance,” Mr. Kumar adds.

Published - November 13, 2024 10:32 pm IST