'Totally Unconstitutional': SC Lays Down Pan-India Guidelines In Key Verdict Against 'Bulldozer Justice'

The apex court said the officer or officials carrying out such demolitions would be held responsible for restitution of the property and payment of damage.

New Delhi:Censuring the trend of 'bulldozer justice' in several parts of the country, the Supreme Court on Wednesday laid down comprehensive guidelines against such arbitrary demolitions calling them "totally unconstitutional" and in violation of the principle of separation of power.

The apex court said the "chilling sight" of bulldozers demolishing a building when the authorities have failed to follow the basic principles of natural justice is a reminder that "might was right". It said demolishing any citizen's property merely because he is an accused or even a convict without following the due process as prescribed by law would be "totally unconstitutional".

A bench of Justices B R Gavai and K V Viswanathan made the observations as it delivered its verdict on pleas seeking framing of guidelines on the demolition of properties in the country. It had reserved its verdict in the matter on October 1.

'Mandatory procedural safeguards'

• Exercising its power under Article 142, the bench outlined mandatory procedural safeguards to be observed across the nation, with specific rules for all states and union territories to ensure transparency and accountability.
• The bench said the concerned authorities are required to issue a “speaking order” explaining the decision to demolish a property.
• It said that all demolitions are to be recorded on video, ensuring evidence of compliance with the court’s guidelines.
• The court directed that no property may be demolished without prior written notice, and said that owners should be given at least 15 days to respond.
• The bench said notices must also be served by registered post and displayed on the structure in question, and it should detail the grounds for demolition and also give a fair window to contest, and the affected persons should have a personal hearing before demolition is undertaken.
• The bench clarified violation of its order by any officer would lead to contempt proceedings and prosecution separately and the officer would be held responsible for restitution of the property and payment of damage in such cases.
• The apex court said its order should be sent to all the High Courts and state governments for issuance of a circular for the officers concerned.

SC observations: 'High-handed actions'; 'Executive Cannot Declare A Person Guilty'

Stressing that the executive cannot replace the judiciary, the bench said the rule of law provides a framework and value system to reign in the arbitrary exercise of state power and prevent abuse of power.

“We have concluded that the executive in an arbitrary manner demolishes the house of a citizen only on the ground that they are accused of a crime then it acts contrary to the principles of rule of law," the bench noted. It said the executive acting as a judge and inflicting a penalty of demolition on the ground on an accused violates the principle of separation of power.

The apex court said the right to shelter is one of the facets of fundamental right under Article 21 of the Constitution and added, "It is not a happy sight to see women, children and aged people rendered homeless in such fashion".

“We are 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," said the bench.

"The officials should also be informed that if the demolition is found to be in violation of the orders of this Court, the officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages", the apex court said.

Justice Gavai, who pronounced the judgment on behalf of the bench, said that for the executive to act transparently to avoid the vice of arbitrariness, the court is of the view that certain directives need to be formulated, which will ensure that public officials would not act in a high-handed manner, and accountability must be fastened upon them.

The bench said even the accused or convicts have certain rights and safeguards in the form of constitutional provisions and the state and its officials cannot take arbitrary measures against the accused or a convict without following the due process as sanctioned by the law.

The apex court said when the right of an accused or convict is violated on account of illegal or arbitrary exercise of power by the state or its officials or on account of their negligence or inaction, there has to be institutional accountability. The bench said one of the measures should be to grant compensation and at the same time the officers have abused their power, they cannot be spared for their "malafide exercise of power".

“If a citizen's property 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 it will be totally unconstitutional for more than one reason: firstly, the executive cannot declare a person guilty….only on the basis of accusation if the executive demolishes the property of such an accused person without following the due process of law, then it would strike at the basic principle of rule of law and it is not permissible," Justice Gavai said.

The bench said the executive cannot become a judge and decide the person accused is guilty and punish him by demolishing his residential or commercial properties. It said that such an act of the executive would be transgressing its limits.

“The chilling sight of bulldozers demolishing a building when the authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principles of due process…”, said Justice Gavai, adding that "it reminds us that might was right".

Justice Gavai said the executive’s high-handed actions have no place and such excesses at the hands of the executive will have to be dealt with by the heavy hand of the law. “Our constitutional ethos and values do not permit any such abuse of power...cannot be tolerated by the court of law….”, said the bench, adding that the executive in such cases will be guilty of taking the law in hand.