You demolish, you pay: Is this the end of “bulldozer justice”?

The Supreme Court has taken the wheels off “bulldozer justice", which had, in the past couple of years, become a leitmotif of several BJP-led governments. Invented by Uttar Pradesh chief minister Yogi Adityanath and embraced enthusiastically by his counterparts from Madhya Pradesh to Assam, “bulldozer justice” mainly involved demolition of an accused’s house or any other property within hours of commission of an offence, giving him little or no notice to be able to approach a court. An uncomfortably large number of these demolitions targeted Muslim households. Their houses were demolished following suspicion of a family member’s involvement in attacking “Hindu processions or properties” within hours of registration of an FIR in the alleged crime. A two-judge bench of Justices Bhushan Gavai and KV Viswanathan in a 95-page judgment not only called out “bulldozer justice” to be unconstitutional, unethical and arbitrary, it said it was an attempt to erase the separation of powers between “the executive” (government and its agencies, including police) and the “judiciary”. The bench issued far-reaching guidelines, making it mandatory to issue ample notice before a demolition can be executed and holding the officer concerned accountable for following the procedure. In case the officer breaches the protocol, he would be required to spend out of his pocket to rebuild the property and pay damages. While only time will tell how effective these guidelines prove to be, given how closely bureaucrats and police officers tend to identify with governments of the day, the judgment is a big step in restoring the rule of law. medium115324040 The guidelines – you demolish, you payNotice: The owner of a property marked for demolition must get a minimum of 30 days’ notice – 15 days’ notice before a demolition order is issued and 15 days to vacate the property after receiving a “reasoned” final order which specifically states why “demolition is the only solution available.” “It is not a happy sight to see women, children and aged persons dragged to the streets overnight. Heavens will not fall if the authorities hold their hands for some period,” the bench observed. This condition should take care of one of the scariest parts of bulldozer justice – the owner of the targeted property getting no time to prove his case. Solicitor General Tushar Mehta, representing the Union government, argued that in some cases it may be “sheer coincidence” that the properties which were in breach of local municipal laws governing them also happened to belong to the accused person. This submission was countered by senior lawyers representing the petitioners stating that the time gap between the person being named as an accused and demolition of his property pointed to demolition being used to punish him without the due judicial process. To take care of the possibility of officers “back-dating” notices, the court directed that the notice be emailed to the concerned collector/district magistrate. This email ID, the court said, must be enabled with automated reply to the sender of the email – someone from the building regulations department. medium115323828Personal hearing: The designated authority shall give the owner of the targeted property a personal hearing. The minutes of such a hearing must be recorded. After the conclusion of this hearing, the designated authority may pass a final demolition order, containing contentions of the property's owner, and, if the designated authority disagrees with the same, the reasons thereof. The order must also mention whether the unauthorised construction can be regularised upon payment of a penalty. The reasons why demolition is the only option available and whether part demolition could be a remedy must be mentioned too.Option of self demolition:An opportunity should be given to the owner/occupier to remove the unauthorised construction within 15 days from the final order of demolition. Only such construction which is found to be unauthorised and not eligible for regularisation must be demolished. Before demolition, a detailed inspection report prepared by the concerned authority must be signed by two ‘panchas’.Video recording: Demolition proceedings to be videographed and a list of officials, including police officers who participated in the demolition, must be prepared. The demolition report must be forwarded to the municipal commissioner by email and shall also be displayed on a digital portal.You demolish, you pay: Violation of any of the directions stated above would lead to initiation of contempt proceedings and prosecution against concerned officials. If the demolition is found to be in violation of this judgment, officers involved will be held responsible for restitution of the demolished property at their personal cost and will also be liable to pay damages. medium115323943 Court’s observations – A house is not just a propertyAn accused, even a convict, has rights: The court observed that the principle that “an accused is not guilty unless proven so in a court of law” is foundational to any legal system. This principle ensures that individuals are not unfairly punished or stigmatized based solely on accusations or suspicions. Thus, the court added, if a citizen’s house is demolished merely because he is an accused or, for that matter, a convict, “it will be totally unconstitutional”.Separation of powers: “The executive [the government and its agencies] cannot declare a person guilty. If the executive demolishes the property of an accused without following the due process of law, it will strike at the basic principle of rule of law,” the court observed.A house is not just a property: The court said the right to shelter is a part of Article 21 (right to life) and depriving innocent people of their right to life by removing the roof over their heads is wholly unconstitutional. Observing that for an average citizen, construction of a house is often the culmination of years of hard work, dreams, and aspirations, the court said: “A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future.”Collective punishment: Does an act punishable by law on the part of one member of a family make the entire family guilty? If the answer to that question is a ‘no’, would it be right to punish the entire family depriving them of a shelter for an act committed by one of them. “What is their mistake if their relative is arrayed as an accused in some complaint or FIR? 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 or properties owned by them is nothing but anarchy,” the court said.Targeted demolitions: “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 touched, mala fide may loom large,” the court observed. The bench said that such targeted demolitions lead to a presumption that “the real motive for such demolition was not the illegal structure but an action of penalizing the accused without even trying him before the court of law.”State as trustee of citizens: The bench also said while the principle of “public trust” has been largely applied by the Supreme Court in cases connected to environmental laws, “it cannot be disputed that the executive exercises its powers as a ‘trustee’ of the citizens”. Therefore, the court said, the executive actions must be consistent with maintaining public trust.Officers of state acting as adjudicators?: Citing a few judgments on the issue of “separation of powers” between the state and the judiciary, the bench raised a question whether the officers of a state government can take upon themselves the adjudicatory function.