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The Supreme Court on Wednesday ruled that state governments cannot demolish the house of a person accused or convicted of a crime citing their criminal background, saying "executive cannot become a judge", and that failure to follow due process would be dealt with the "heavy hand of the law".
The court observed that if a property is demolished only because a person is an accused, it is "wholly unconstitutional". “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,” a bench of Justices BR Gavai and KV Viswanathan said.
“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 court said during hearing pleas challenging house demolitions by state governments in Rajasthan and Madhya Pradesh. In these cases, Muslim tenants were accused of committing crimes that triggered communal tensions.
The court further said that such ‘bulldozer action’ amounts to state officials taking the law into their own hands.
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The court also set out guidelines to regulate such demolitions, including a mandatory 15-day notice period for the targeted residents to either challenge the order or get their affairs in order before being evicted. The notice must also spell out the reason(s) for demolition and the date of hearing to challenge the action, the court said. It added that the affected party needs to be given time to challenge the order of demolition before an appropriate forum.
The court also said if state officials do not comply with these guidelines, it could lead to contempt proceedings against them as well as compensation for the targeted party, with the concerned officials being made to pay for rebuilding the demolished homes.
“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,” the court said.
The court noted that 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,” the court said.
Among its guidelines, the court has also specified that notices of the demolition must outline the alleged violations and provide an opportunity for a personal hearing. It also called for the setting up of a digital record where notices, responses, and final decisions would be documented and made available. The court also asked authorities to give affected individuals time to remove any unauthorised structures and conduct a detailed video-recorded inspection before demolitions were carried out.
“This ruling underscores that punitive demolitions without due process have no place in a lawful society and that any breach will lead to stringent accountability for those in authority,” said Yatharth Rohila, Advocate & Partner, Aeddhaas Legal LLP.
“The judgment has thrown the final hammer. State action must be right, fair and just and must not suffer from the vice of arbitrariness,” said Shiv Sapra, Partner, Kochhar & Co.
At the outset, the court clarified that its directions would not be applicable to an unauthorised structure in any public place such as a road, street, or footpath, or that was abutting a railway track or any river or water body. It also exempted cases where there was an order for demolition issued by a court of law.
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