Supreme Court reinforces due process in demolition cases, lays down stringent guidelines to prevent arbitrary demolitions

On November 13, 2024, the Supreme Court bench of Justice BR Gavai and KV Viswanathan delivered a landmark judgment addressing the issue of illegal demolitions, a phenomenon popularised as “bulldozer justice”. Through the said judgment, the SC bench delves into the complex and significant issue of demolitions conducted by state authorities as punitive measures against individuals accused of crimes. The judgment, which is widely regarded as a significant in protecting fundamental rights, critiques the executive’s use of property demolition as a substitute for criminal prosecution.

Details of the present pleas before the Bench:

The judgment emerged from a batch of writ petitions filed under Article 32 of the Constitution, wherein various individuals sought relief against the summary demolition of their properties. The Supreme Court was hearing two urgent applications, moved by the victims of these targeted petitions, along with separate pleas filed by Jamiat and CPI (M) leader Brinda Karat, challenging recent demolition actions by authorities in the states of Madhya Pradesh and Rajasthan. These pleas have been moved by the victims, Rashid Khan from Rajasthan and Mohammad Hussain from Madhya Pradesh, whose homes were targeted.

One of the applications was filed by the Rashid Khan, a 60-years old auto-rickshaw driver from Udaipur. In Udaipur the District Administration demolished the house of Rashid as one of his tenant’s boy, allegedly stabbed his classmate. An order was issued by the district forest authority and Municipal Corporation on Friday, August 16, 2024 and gave the family time till Tuesday i.e. August 20 to vacate their home, but the authorities demolished the house a little later on August 17.

The other plea was filed by Mohammad Hussain from Madhya Pradesh who has also alleged that his house and shop were unlawfully bulldozed by the state administration. Both Khan and Hussain’s applications were filed in the context of a case previously submitted by Jamiat Ulama I Hind, which objected to the demolition of Muslim homes in Haryana’s Nuh following communal violence between Hindus and Muslims.

Observations by the Court

The Supreme Court’s judgment provides a detailed analysis of several foundational principles and addresses each issue comprehensively:

1. Upholding the rule of law: The Supreme Court underscored that the rule of law is a fundamental tenet of the constitutional framework and must guide all state actions. Referencing A.V. Dicey, the Court emphasised that the rule of law requires that every individual is subject to the same laws and that state actions should always align with legal principles. Any actions taken outside of these laws are arbitrary and undermine democracy. In the demolition cases, the Court highlighted that state authorities appeared to have bypassed legal frameworks, breaching the rule of law.

“There can be no doubt with the principle that, no one is above the law of the land; that everybody is equal before the law.” (Para 15)

2. Principle of separation of powers: The Court emphasised the importance of the separation of powers, stating that while the executive has broad administrative authority, punitive actions with serious consequences fall under the judiciary’s exclusive purview. The judgment argued that punitive measures without judicial oversight infringe upon judicial authority and weaken the justice system. By acting as both accuser and judge, the executive undermined legal safeguards designed to protect individuals from arbitrary punishment.

“If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are accused of a crime, then it acts contrary to the principles of ‘rule of law’. 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’. 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.” (Para 53)

3. Presumption of innocence: The Court reiterated that the presumption of innocence is central to criminal justice and must not be disregarded for expediency. Citing landmark cases, the Court underscored that imposing punishment prior to judicial determination contradicts principles of fairness and justice. It acknowledged that while demolitions might deter unlawful behaviour, they cannot substitute for due process and judicial oversight.

“The principle, that “an accused is not guilty unless proven so in a court of law” is foundational to any legal system. It reflects the presumption of innocence, which means that every person accused of a crime is considered innocent until proven guilty beyond a reasonable doubt by a court of law. This principle ensures that individuals are not unfairly punished or stigmatized based solely on accusations or suspicions.” (Para 63)

4. Right to shelter: The Court held that the right to shelter is fundamental and integral to human dignity, protected under Article 21. The judgment noted that arbitrary demolition of one’s home severely infringes on the right to life. Drawing from international human rights conventions, the Court argued that shelter provides physical and psychological security essential for a stable life, emphasising that arbitrary actions against shelter are 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.” (Para 78)

“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.” (Para 76)

5. Public accountability and trust: Referring to the doctrine of public trust, the Court stated that state officials are entrusted by the public and must conduct actions transparently, with accountability for abuses of power. It found that demolitions without legal grounds breached public trust, requiring accountability measures. Officials responsible for such demolitions were deemed to have acted in bad faith, warranting punitive consequences.

“This Court held that the well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office. It has been held that the doctrine of “full faith and credit” applies to the acts done by the officers in the hierarchy of the State. They have to faithfully discharge their duties to elongate public purpose.” (Para 47)

6. Potential abuse of power in demolitions: The Supreme Court critical assessed the arbitrary demolition of properties belonging to accused individuals, describing such actions as a potential “abuse of power” that contradicts constitutional principles. Justices BR Gavai and KV Viswanathan observed that selective demolition, where certain structures were demolished while others remained untouched, suggested state malice.

“…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 penalizing the accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalize a person accused by demolishing the structure.” (Para 82) 

7. Limits of executive authority: The judgment asserted that the executive cannot bypass judicial processes to punish an accused by demolishing property, as this oversteps executive powers and undermines the rule of law. The Court described these arbitrary demolitions as “high-handed” and deemed demolitions without the authorities following the basic principles of natural justice and acting without due process to be a “chilling sight”.

“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.” (Para 72)

8. Due process for the accused and convicted: The Court underscored that due process is essential not only for those accused of crimes but also for individuals who have been convicted. It highlighted that, even in cases of conviction, property cannot be demolished without following the procedures established by law. The Court further stressed that any executive action assuming guilt and enacting punishment, like demolition, without a fair trial, infringes on the principle of separation of powers.

“As we have already said, such an action also cannot be done in respect of a person who is convicted of an offence. Even in the case of such a person the property/properties cannot be demolished without following the due process as prescribed by law. 74. Such an action by the executive would be wholly arbitrary and would amount to an abuse of process of law. The executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law.” (Para 73 and 74)

9. Rights of the accused: The judgment stated that individuals accused of crimes are entitled to fundamental constitutional protections, such as the right to a fair trial, the right to dignity, and protection from cruel or inhumane treatment. The Court affirmed that both accused and convicted individuals have specific rights enshrined in constitutional and criminal law, which the state must respect. It further stressed that arbitrary or excessive actions against accused persons or convicts are impermissible without adhering to lawful procedures. The Court called for institutional accountability in cases where an accused person’s rights are compromised due to state overreach, reinforcing the foundational legal principle of presumed innocence until proven guilty.

“It is to be noted that even in the cases consisting of imposition of a death sentence, it is always a discretion available 74 to the courts as to whether to award such an extreme punishment or not. There is even an institutional safeguard in the cases of such punishment to the effect that the decision of the trial court inflicting death penalty cannot be executed unless it is confirmed by the High Court. Even in the cases of convicts for the commission of most extreme and heinous offences, the punishment cannot be imposed without following the mandatory requirements under the statute. 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 of his property/properties? The answer is an emphatic ‘No’.” (Para 75)

10. Accountability for public officials in arbitrary demolitions: The Court emphasised that public officials involved in carrying out such demolitions must be held accountable for their actions. It stressed that those who act beyond the law in such an arbitrary and forceful manner should be made responsible for their actions, underscoring the importance of restitution in such cases.

“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. 54. For the executive to act in a transparent manner so as to avoid the vice of arbitrariness, we are of the view that certain binding directives need to be formulated. This will ensure that public officials do not act in a high-handed, arbitrary, and discriminatory manner. Further, if they indulge in such acts, accountability must be fastened upon them.” (Para 53 and 54)

11. Reinforcing Constitutional ethos: In summary, the Court highlighted that executive authorities are not permitted to bypass judicial processes or assume judicial functions by deciding guilt and administering punishment. The Court emphasised that determining guilt is the exclusive domain of the judiciary. This judgment reinforces India’s commitment to the rule of law, ensuring that executive actions, regardless of the seriousness of the accusations, adhere to constitutional limits and uphold procedural justice.

“It is a settled principle of criminal jurisprudence as recognized in our country that a person is presumed to be innocent till he is held guilty. In our view, if demolition of a house is permitted wherein number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an accused or convicted in the crime, it will amount to inflicting a collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same.” (Para 88)

Power of Article 142

To prevent arbitrary demolitions, the Court exercised its authority under Article 142 of the Indian Constitution, establishing guidelines to curb “bulldozer actions” as punitive measures against those accused or convicted of crimes. It mandated that individuals facing demolition should be granted time to contest the orders, ensuring they have a fair chance to challenge the demolition in an appropriate forum. The Court also advised that authorities should delay action, especially when vulnerable groups—such as women, children, and elderly persons—are required to vacate, suggesting that a brief postponement would not compromise the state’s interests.

“In order to allay the fears in the minds of the citizens with regard to arbitrary exercise of power by the officers/officials of the State, we find it necessary to issue certain directions in exercise of our power under Article 142 of the Constitution. We are also of the view that even after orders of demolition are passed, the affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum. 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 87 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.” (Para 90)

The Court specified that these protections do not apply to unauthorised structures in public spaces, including roads, footpaths, railway tracks, or areas near water bodies, nor to demolitions ordered by a court. This exception aims to balance individual rights with the need to prevent unauthorised occupation of public spaces.

Directions issued by the Court

The court issued comprehensive guidelines to prevent arbitrary demolitions and to reinforce procedural fairness by establishing the following:

1. Time to challenge demolition orders: After a demolition order is issued, the affected individuals must be allowed sufficient time to contest the order before the appropriate forum.
2. Time for voluntary vacating: Even for those who do not intend to challenge the demolition, adequate time should be provided to vacate the premises.
3. Mandatory show-cause notice: No demolition should occur without a prior show-cause notice, served either within the time specified by local municipal laws or within 15 days of service, whichever is later.
4. Notice delivery and documentation: Notices must be sent by registered mail to the property owner and posted visibly on the property. A digital notification should also be sent to the office of the Collector or District Magistrate, which must acknowledge receipt to ensure transparency.
5. Designation of nodal officer: District Magistrates should designate a nodal officer and assign an official email for demolition communications within one month.
6. Detailed notice content: The notice should outline the nature of the unauthorised construction, specific violations, demolition grounds, personal hearing dates, and the authority handling the matter.
7. Digital portal requirement: Municipal authorities must set up a digital portal within three months where details about notices, responses, show-cause orders, and final decisions are accessible.
8. Opportunity for personal hearing: The designated authority must allow a personal hearing for the affected party, recording the hearing minutes and providing a reasoned final order. This order should address the party’s arguments, the authority’s findings, and whether partial or full demolition is justified.
9. Judicial review: If an appeal mechanism exists, the demolition order must be on hold for 15 days from receipt to allow the owner a chance to appeal. The order should also be posted on the digital portal.
10. Opportunity for voluntary removal: The property owner should be given the chance to remove unauthorised construction voluntarily within the 15-day period. If they do not comply, and no stay is granted by an appellate authority, demolition may proceed.
11. Limit to non-compoundable structures: Only parts of the structure that are non-compoundable under local laws may be demolished.
12. Inspection and videographic documentation: Before demolition, the authority must prepare an inspection report, videograph the process, and preserve records. The final report, including a list of personnel involved, must be submitted to the Municipal Commissioner and uploaded to the digital portal.
13. Contempt and accountability: Any breach of these guidelines may lead to contempt proceedings and prosecution. If demolitions violate Court orders, responsible officers may be liable for restoring the property at personal cost, including payment of damages.
14. Dissemination of judgment: The judgment was ordered to be distributed to Chief Secretaries of all States and UTs and Registrar Generals of High Courts. States must circulate guidance on the ruling to relevant authorities.

Petitioners’ contentions

The petitions collectively contended that state authorities were engaging in a disturbing pattern of demolishing homes and businesses of individuals accused in criminal cases without following due process of law. This trend, referred to colloquially as “bulldozer justice,” involved allegations that these demolitions were targeted actions against certain communities and political dissenters, carried out in the absence of formal judicial determinations of guilt or proper legal protocols.

The petitioners pointed out specific instances in states like Uttar Pradesh, Madhya Pradesh and Rajasthan, where several demolitions had taken place following allegations of involvement in criminal activities or political protests. In such cases, state machinery reportedly moved swiftly to demolish the homes of accused individuals, often with little to no prior notice, minimal opportunity for appeals, and a lack of legal proceedings establishing their guilt. These actions, according to the petitioners, not only violated the fundamental rights to shelter, equality, and due process but also reflected a breakdown of the rule of law in favour of executive overreach.

The court’s task was therefore to examine whether these demolition actions were legally defensible or whether they constituted a misuse of state power in breach of constitutional protections. The case brought into focus several interwoven principles: the rule of law, separation of powers, and the fundamental rights of individuals, including the right to property and shelter.

Central issues highlighted in the case

The judgment identifies and dissects several key issues that had been brought up by the petitioners:

1. Violation of due process of law: The petitions emphasised that the demolitions were conducted without procedural fairness, including notice and the opportunity for a hearing, which are foundational to the principle of natural justice. This issue questioned whether the state could deprive individuals of property without any formal adjudication or adherence to legal procedures.
2. Presumption of innocence: The petitions highlighted a troubling presumption of guilt that appeared inherent in the state’s actions, with demolitions proceeding on the basis of allegations or accusations being raised by the state police against the targeted individuals alone. This aspect raised concerns over the use of administrative powers to punish individuals in lieu of judicially sanctioned penalties, undermining the accused’s right to be presumed innocent until proven guilty.
3. Arbitrariness and erosion of rule of law: The judgment had to consider whether these demolitions represented a breach of the rule of law. The principle of rule of law, foundational to a democratic society, requires that all state actions be predictable, transparent, and consistent. Arbitrary demolitions carried out without proper legal authorisation or transparent procedures brought into question the very fabric of rule-based governance.
4. Separation of powers: The case addressed the overstepping of executive powers into areas traditionally reserved for the judiciary. Punitive actions, such as passing convictions and sentencing the demolition of property, typically fall under the jurisdiction of the judiciary, ensuring a fair trial and proportional punishment. The court’s role was to determine if the executive had bypassed the judiciary’s role by unilaterally deciding to punish individuals outside of the formal legal system.
5. Accountability and public trust: The principle of accountability emerged as a critical concern, examining whether state officials could be held accountable for demolitions conducted in violation of legal procedures. The doctrine of public trust mandates that public officials exercise power as custodians of the people’s trust, acting transparently and responsibly.

Arguments raised by the parties

Submissions made by the petitioners: The petitioners had argued that the demolitions were in clear violation of constitutional rights and represented an abuse of state power. They asserted the following:

• Lack of adherence to due process: The demolitions were carried out without prior notice or an opportunity for the accused to present their case. This disregard for procedural safeguards contravened the constitutional mandate of Article 21, which protects the right to life and personal liberty. By bypassing established procedures, the state not only deprived the accused of their property but also of their dignity and sense of security.
• Punitive in nature: The petitioners contended that the demolitions were punitive measures disguised as administrative actions. They argued that demolishing homes of those accused of crimes, without any judicial pronouncement of guilt, amounted to a pre-emptive punishment that violated the principle of presumption of innocence. This, they argued, created a dangerous precedent where the executive assumed the role of judge, jury, and executioner.
• Infringement of fundamental rights: The right to shelter, enshrined as a fundamental right, was argued to be inalienable and non-derogable. The petitioners highlighted that the Constitution protects individuals from state actions that threaten basic human needs, such as a home. They pointed to the jurisprudence that recognises shelter as integral to human dignity and a necessary condition for the exercise of other rights.
• Discriminatory and arbitrary actions: The petitioners argued that the demolitions were disproportionately aimed at certain communities and individuals, indicating a selective and discriminatory application of administrative power. This arbitrary use of state machinery not only undermined the rule of law but also created a perception of bias and prejudice in state actions.

Senior advocate Abhishek Manu Singhvi, senior advocate M.R. Shamshad, senior advocate Sanjay Hegde, senior advocate C.U. Singh, senior advocate Nitya Ramakrishnan, advocate Prashant Bhushan, advocate Mohd. Nizammudin Pasha, advocate Fauzia Shakil and advocate Rashmi Singh had appeared for the petitioners/applicants.

Submissions made by the respondents:

The state governments and the Union of India, represented by the Solicitor General Tushar Mehta, defended the demolitions on several grounds, such as:

• Lawfulness of demolitions: The respondents argued that all demolitions were conducted in accordance with municipal laws and regulations that allow for the removal of unauthorised constructions. They contended that these actions were administrative in nature and were necessary for enforcing urban planning and public order. Demolitions, they argued, were within the executive’s purview and did not require judicial sanction in cases of unauthorised structures.
• Protection of public order: The respondents maintained that the demolitions were legitimate actions to maintain public order and enforce laws regarding land use and property management. They argued that individuals accused of crimes often built or occupied unauthorised structures, and removing these structures was part of a broader strategy to uphold lawful land use.
• Statutory authority and exceptions: The respondents cited specific provisions under municipal laws that permitted immediate demolitions without notice in cases of unauthorised encroachments on public land, roads, or water bodies. They argued that under such statutes, the state had a statutory mandate to act swiftly in the removal of unlawful structures to prevent public nuisances and ensure public safety.

Reaffirming the rule of law: A landmark judgment safeguarding fundamental rights, human rights and judicial oversight

This judgment firmly establishes that no citizen in India can be deprived of their property or shelter without lawful process and judicial oversight, underscoring the commitment to constitutional principles that protect individual rights against overreach. The ruling reinforces democratic safeguards by placing stringent checks on executive powers, mandating that actions affecting private property and shelter must follow clear procedural protections. In doing so, it highlights the judiciary’s role as a defender of individual rights, ensuring that the state cannot exercise arbitrary authority that undermines citizens’ trust in the rule of law. This foundational stance is a crucial reminder that state power, while necessary, must operate within the bounds of fairness and legal accountability.

At the heart of the judgment is a reaffirmation of the rule of law, emphasising that democratic governance must adhere to principles of justice and non-selective enforcement of laws. It reinforces that no arm of the state, including the executive, can bypass established legal processes to impose punishment, a critical safeguard against abuse of power. By reiterating that punitive actions, such as demolitions, cannot be decided or enacted by the executive without judicial endorsement, the judgment underlines the importance of a system that values transparency, fairness, and predictability in state actions. This ruling is timely in a period of increasing concern over unchecked executive power and serves to uphold the idea that the judiciary is the sole authority on matters of guilt and punishment.

The judgment also extends robust protections to fundamental rights, especially those of vulnerable communities who are often at risk of unjust state actions. In recognising the right to shelter as an extension of the right to life and dignity, it underscores the societal importance of a stable home, affirming that housing is more than mere property—it is security, identity, and foundation. The ruling’s procedural safeguards and accountability measures are particularly impactful for marginalised communities, who are disproportionately affected by evictions and demolitions. These protections are crucial in a landscape where informal housing is common and where rapid state actions can push vulnerable populations into severe socio-economic hardship. The judgment, therefore, reinforces the judiciary’s role as a champion of inclusive protection, ensuring that all citizens, regardless of socio-economic status, are shielded from arbitrary actions.

The judgment’s emphasis on accountability and transparency is another key takeaway, introducing procedural requirements that mandate prior notice, digital records, and opportunities for affected individuals to respond before any state-led demolition. This push for transparency, with directives for a public digital portal to document each demolition, is a step toward increased public oversight, which in turn builds citizens’ confidence in government processes. The emphasis on personal accountability, where officials can face consequences for violations, serves as a significant deterrent to potential abuses of power. By setting these standards, the judgment promotes responsible governance that aligns with democratic principles, ensuring that public officials act as guardians of, rather than threats to, citizens’ rights.

Ultimately, this ruling is a powerful legacy for Indian governance and the judiciary’s role as a custodian of democracy and civil liberties. It sends a message both domestically and internationally that India’s democratic system, rooted in respect for human rights and the rule of law, stands firm against authoritarian tendencies. As a landmark decision, it will likely be a touchstone for future cases involving executive overreach, setting a precedent that demands due process, accountability, and judicial oversight as essential elements of governance. This judgment is not just a procedural mandate; it is a robust assertion of democratic values, a testament to the judiciary’s responsibility in upholding the Constitution, and a commitment to safeguarding citizens from the misuse of state power.

The complete judgment may be read below.

(Details of the previous orders can be read here, here and here.)

Related:

Demolitions: SC orders status quo on Sonapur demolitions, issues notice to Assam Government Uttarakhand, UP, Gujarat also ignore Sept 17 order

Supreme Court halts nationwide demolitions through interim order, emphasising the ethos of the Constitution

Supreme Court rebukes “Bulldozer Justice,” plans to issue nationwide guidelines to prevent arbitrary demolitions

Supreme Court to hear urgent pleas against state-sanctioned bulldozer demolitions in Madhya Pradesh and Rajasthan