Executive can't become judge: Supreme Court lays down guidelines against 'bulldozer action'

New Delhi: The Supreme Court on Wednesday declared that the residential or commercial property of an accused or convict of a crime can't be demolished without following the due process of law as the right to shelter is one of the facet of fundamental right under Article 21 of the Constitution.

Laying down detailed guidelines against such arbitrary and high-handed actions by the state authorities, a bench of Justices B R Gavai and K V Vishwanathan said resorting to bulldozer action by the state officers would be violative of the basic principle of separation of power and they would be held accountable for illegal, arbitrary, and malafide exercise of power.

"The executive cannot replace the judiciary in performing its core functions....If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of ‘separation of powers'," the bench said. 

The court termed demolition of private properties of individuals because of their alleged involvement in some crime, as "nothing but an anarchy", "lawless state of affairs where might is right" and thus "wholly unconstitutional". The bench said bulldozer action is extreme, disproportionate and inflicted collective punishment.

The court said life, liberty and property of the citizens can't be taken away arbitrarily and it is the State's responsibility to maintain law and order and protect the citizens.

"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”," the bench said. 

The court highlighted the principles of presumption of innocence of the accused until held guilty. The court said even the convict is granted protection under the law against any arbitrary action.

"Depriving innocent people of their right to life by removing shelter from their heads (on the basis of some crime by some member of family) would be wholly unconstitutional," the bench said.

Emphasising that no one is above the law of the land and that everybody is equal before the law, the court said such punishment can't be enforced without following the due process.

"It is not a happy sight to see women, children and aged persons dragged to the streets overnight," the bench said.

The court said even punishments such as the death penalty, awarded for heinous crimes, have certain mandatory requirements of a statute that need to be followed. “In that light, can it be said that a person who is only accused of committing some crime or even convicted can be inflicted the punishment of demolition? The answer is an emphatic no," the bench said.

It said the officers of the State can't take upon themselves functions to be performed by the judiciary and act in violation of fundamental and statutory rights of the citizens.

It would be "totally unconstitutional", if the executive started declaring a person as guilty.

"As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution," the bench said. 

The court said there may be unauthorised constructions which may be compoundable in such cases.

The court emphasised if the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that no other option except such an extreme step of demolition was available before them.

"It is a dream of every person, every family to have a shelter above their heads. A house is an embodiment of the collective hopes of a family or individuals’ stability and security," the bench said.

The state governments sought to defend their action, contending in some cases the properties in breach of municipal laws happened to belong to accused persons by a sheer coincidence.

"When a particular structure is chosen all of a sudden for demolition and rest of the similarly situated structures in the same vicinity are not even being touched, mala fide may loom large," the bench said.

In order to allay the fears of the citizens, the court issued directions under Article 142 of the Constitution to direct that a 15 days notice must be given to the person before resorting to demolition, spelling out the nature and extent of unauthorised constructions.

The court also directed for creation of a digital portal detailing such action by the state authorities.

It said demolition order would not be implemented for 15 days and all the proceedings should be videographed and preserved and be displayed on digital portal.

The bench clarified violation of its order by any officer would lead to contempt action and prosecution separately.

The officers concerned would be held responsible for restitution of the property and payment of damage in such cases, it warned.

"One of the measures for redressing the grievance for violation of a right would be to grant compensation. At the same time, if any of the officers of the State has abused his powers or acted in a totally arbitrary or mala fide manner, he cannot be spared for such an illegal, arbitrary, mala fide exercise of power," the bench said.

The court directed for sending its order to all the High Courts and state governments for issuance of a circular for the officers concerned.

The court's judgment came on a plea filed by Jamiat Ulama I Hind and others, questioning validity of arbitrary actions of demolition of house of people accused of some crime by state governments across the country.

It, however, clarified the directions would not be applicable to unauthorised constructions on public lands, roads, water bodies and lands abutting railways.

The case was rechristened as 'In Re: Directions in the Matter of Demolition of Structures'.