In a strongly worded order, the Supreme Court laid stringent guidelines to curb “bulldozer justice” and warned officials against demolishing houses of an accused as a punitive action. It is illegal and unconstitutional to demolish the house of a person simply because they are accused or convicted of a crime, the top court said.
“Executive cannot become a judge and demolish the properties of the persons accused...chilling sight of a bulldozer demolishing a building reminds one of lawlessness where might was right. Such highhanded and arbitrary actions have no place in a constitutional democracy...,” the Supreme Court said.
The top court bench comprising Justices BR Gavai and KV Vishwanathan warned officials that violation of court orders would invite contempt proceedings against them. If demolitions were carried out in violation of norms, the officers in charge would be held liable and the cost for the same would be recovered from their salary.
“Public officials who take law in their hands and act in such a high-handed manner must be fastened with accountability...”, the court said.
Supreme Court’s judgment came on a batch of pleas that challenged state actions where persons accused of crimes found their homes demolished.
Executive cannot replace the Judiciary
The Supreme Court said the Executive cannot replace the judiciary or the legal process to determine a person’s guilt or innocence. Such an act will be transgression of the limits. The chilling side, of the bulldozer reminds that constitutional values and ethos do not allow for such an abuse of power, the bench said.
Such an action would tantamount to the executive taking the law unto their hands, the court ruled.
Supreme Court said, through these pleas, an important question as to whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused in a crime under our constitutional scheme or not arises for consideration.
“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,” the court said.
It is every family’s dream to own a house, the court noted. “Construction of a house is an aspect of socio-economic aspirations. It is not just a property but it symbolizes the years of struggle. A house embodies one’s collective hope of security and their future. It gives a sense of dignity. If this is to be taken away, then the authority must be satisfied that this is the only option available,” the bench added.
“The settled principle of criminal jurisprudence is that accused is innocent till proven guilty and if the structure is demolished, then it is collective punishment on all family members which cannot be allowed under the Constitution,” the court added.
The court further said when a particular structure is suddenly singled out for demolition, and the rest of the similarly situated structures in the 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.”
Implications for State Governments and Officials
The court said officials who misuse power and act in a “high-handed manner” must be held accountable. “State and its officials can't take arbitrary and excessive measures. If any officer of the State has abused his power or acted in total arbitrary or malafide manner, he cannot be spared,” the court said.
Supreme Court said it has laid down guidelines which shall be followed by state officials in such cases. Violation of norms will invite prosecution and contempt proceedings, the bench said.
“…Even accused has certain right and safeguards, State and officials cannot take arbitrary action against accused or convicts without following due process of law,” it added. The court further said, “When an official is held liable for arbitrary action there has to be institutional mechanism to deal with it.”
Compensation for carrying out demolitions in violations of norms would be recovered from the officers’ salaries, the court added.
Guidelines:
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.
The notice shall be served upon the owner/occupier by a registered post. Additionally, the notice shall also be affixed conspicuously on the outer portion of the structure in question.
Notice should include details like: the nature of the unauthorized construction; details of the specific violation and the grounds of demolition; list of documents that the noticee is required to furnish along with his reply; notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place.
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.
Authorities must hear the accused before passing a final order. The hearing will be recorded. Time must be given to appeal against an adverse order.
A house owner must first be given time to remove the offending portion of the illegal structure on his own; failing which the authorities can proceed with a demolition only after due process
Demolitions, if any, will 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.