In PIL hearings alleging discrimination and the government’s impunity, it is not unusual for the respondent authorities to claim they will adopt a non-adversarial role vis-a-vis the petitioner, and still deny the allegations. A court, which is people-centric, is likely to lift the veil, and examine whether the official claims have any substance, and if they don’t, articulate appropriate judicial reasoning to answer probable hidden motives of the government.
The hearing of In Re: Directions in the matter of demolition of structures by the Supreme Court was no different. In this case, the writ petitioners alleged that residential and commercial properties have been demolished by state machinery, without following the due process of law, on the grounds that the owners are involved in criminal offences.
The Solicitor General, Tushar Mehta, representing the Union government and concerned States, submitted that most of the properties demolished were found to be in breach of local municipal or panchayat laws. He suggested that in some cases it might be by a sheer coincidence that the properties in breach of local municipal laws also happened to belong to accused people. He reiterated that it was the stand of the various States that such properties could be demolished only in accordance with procedures prescribed by law.
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The two-judge bench of the Supreme Court, comprising Justices B.R. Gavai and K.V. Viswanathan, however, found merit in the petitioners’ claim—relying on a chain of events—that the demolition of homes was an immediate punitive action against the people implicated in crimes.
The petitioners found it difficult to believe that only a single construction belonging to an accused was unauthorised construction, whereas all other structures in the vicinity were legal and authorised as per local laws.
In paragraph 82 of its judgment, delivered on November 14, Justice Gavai, who authored it, keeping with the Court’s established traditions, expressed his agreement with Mehta’s “coincidence” theory in some cases, but however, found it necessary to lift the veil, and expose its hollowness.
Justice Gavai held: “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 penalising the accused without even trying him before the court of law.”
The right to shelter
Lifting the veil, Justices Gavai-Viswanathan bench held that even if the demolition is justified for the breach of municipal or panchayat laws, the principle of rule of law needs to be considered. Demolition, they held, is an extreme step, which would be disproportionate in such cases, because of two reasons: a) certain unauthorised constructions could be compoundable; b) there may be certain constructions where only part of it is required to be removed.
The bench reminded the Union and concerned State governments that the right to shelter is one of the facets of Article 21 of the Constitution. If people are to be dishoused, the authorities taking this step must satisfy themselves that such an extreme measure such as demolition is the only available option.
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, the bench added. As housing gives a sense of dignity and belonging, the authority must be satisfied that demolition is the only option available, it held .
The bench then examined the hidden motives of the authorities to demolish so-called illegal properties. 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 leaving shelterless people who are not related to the crime, the bench asked.
In a sense, the bench’s framing of this question is a bit problematic. Surely, the bench does not agree that even if the accused or convict is a lone occupant or owner of the house being demolished, it is a sufficient reason for demolition.
In paragraph 88, the bench reiterates the principle that a person is presumed innocent until proven guilty. If demolition is permitted of a house where a number of members of a family/ families live and only one person living in it is an accused or convicted in a crime, it will amount to inflicting a collective punishment on the entire family, the bench reasoned.
Collective punishment cannot be justified. However, our penal laws do not prescribe demolition of a house, even if the convict happens to be a sole owner or resident of that property. Our Constitutional scheme and the criminal jurisprudence would never permit the demolition of a house of an accused or a convict, even if he or she happens to be the sole occupant or owner of that house.
Members of Social Activists Forum, Tamil Nadu staging demonstration near Rajarathinam stadium, Egmore in Chennai on June 19, condemning the demolition of homes and businesses belonging to Muslims, in what critics call a growing pattern of “bulldozer justice” aimed at punishing activists from the minority group. | Photo Credit: JOTHI RAMALINGAM B
The bench needs to be complimented for its clear directions in exercising its power under Article 142 of the Constitution, to provide complete justice. The bench made it clear that the affected party needs to be given some time to challenge the demolition order.
“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 bench observed.
A designated digital portal
The bench held that no demolition should be carried out without a prior show cause notice returnable within a minimum of 15 days from the date of the notice being served. The bench directed every municipal/local authority to assign a designated digital portal, within three months starting November 14, in which details regarding the serving of the notice, the reply, the show cause notice and the order passed would be available.
The bench also directed the designated authority for demolition to give an opportunity to the affected person of a hearing, and recording of the minutes of the hearing. The final order of the demolition, the bench held, should contain the contentions of the affected person, and the reasons the designated authority disagrees with these contentions.
More importantly, the final order should justify why demolition is the only option available, having exhausted other possible remedies, such as compounding or demolishing only part of the property, the bench noted.
The bench also held that the final order should not be implemented for a period of 15 days from the day it is issued and uploaded on the digital portal giving an opportunity to the affected person to appeal to any appellate authority or the court.
The bench directed a video-recording of the demolition, and a list of police officials and civil personnel who participated in the demolition process. This report should be forwarded to the Munipal Commissioner by email and should also be displayed on the digital portal, the bench held.
The bench made it clear that violation of any of these directions would lead to the initiation of contempt proceedings in addition to prosecution. If the demolition is found to violate these directions, the authorities will be held responsible for the restitution of the demolished property at their personal cost in addition to payment for damages.
Considering that officials act on informal orders of their political masters, should not the court hold the latter liable for illegal demolitions? After all, the bench noted that such demolitions carried out by state authorities subverted the authority of courts to adjudicate and determine the guilt of an accused and punish them, denigrating the separation of powers. If so, it doesn’t make sense to hold officials alone guilty and liable for punitive action.
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Amnesty International had released two reports in February this year documenting the arbitrary and punitive demolitions in at least five States in a hate campaign against the minority community for protesting against discriminatory laws and practices. Apart from questioning demolitions as a form of extra-judicial punishment, the reports also sought adequate compensation to all those affected, and holding to account those responsible for these violations.
Between April and June 2022, Amnesty International researchers found that authorities in four BJP-ruled States of Assam, Gujarat, Madhya Pradesh, and Uttar Pradesh, and Delhi carried out demolitions as a punishment following episodes of communal violence or protests against discrimination against Muslims. The study found that at least 617 people were rendered homeless or deprived of their livelihoods as a result of 63 of 128 documented demolitions.
In 2023, instances of illegal demolitions were reported also from Jammu and Kashmir, Haryana, Gujarat and Uttarakhand. The pan-India directions of the Supreme Court in this case should hopefully put an end to such demolitions.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues.
