Supreme Court Guidelines on “Bulldozer Justice”

• 14 Nov 2024

For Prelims: Supreme Court, Article 142, Municipal Laws, Executive, Judiciary, Rule of Law, Right to Life with Dignity, Article 21, Article 300A, Article 14,  Article 51, Geneva Convention 1949, Procedure Established by Law, Due Process of Law, Maneka Gandhi Case, 1978, Hate Speech, Tribunals, Alternative Dispute Resolution. 

For Mains: Implementation of due process of law in demolition drives.

Source: IE

Why in News?

Recently, the Supreme Court (SC) laid down pan-India guidelines under Article 142 of the Constitution to ensure that due process is followed for demolishing the properties of citizens. 

• SC ruled that demolishing the properties of an accused or convicted without following due process is “unconstitutional”. 
• The case challenged the "extra-legal" demolition of homes of individuals accused of crimes, recently seen in Uttar Pradesh, Madhya Pradesh, and Uttarakhand.

Note:

Bulldozer justice refers to the practice of demolishing properties, often belonging to those accused of crimes, sometimes without following proper legal procedures. 

What are the Supreme Court Guidelines on Bulldozer Justice? 

• Providing Notice: A minimum of 15 days' notice must be given to the property owner or occupier before any demolition can proceed. 
  • The notice must clearly outline the details of the structure to be demolished and reasons for demolition. 
• Fair Hearing: A scheduled date for a personal hearing to provide an opportunity for the affected party to contest the demolition or clarify the situation. 
• Transparency: Authorities must notify the local Collector or District Magistrate via email upon serving the notice, with an auto-reply acknowledgment to avoid claims of backdating or tampering. 
• Issuance of Final Order: The final order must include the owner's or occupier's arguments, the authority's justification for demolition as the only option, and whether the entire or partial structure is to be demolished. 
• Post-Final Order Period: If a demolition order is issued, the Supreme Court mandated a 15-day period before implementation, allowing the owner or occupier to remove the structure or challenge the order in court. 
• Documentation of Demolition: The authority must record the video of demolition and prepare an “inspection report” beforehand, along with a “demolition report” listing the personnel involved. 
• Test for Dual Violations: The SC laid down a separate test for cases where a demolished property houses an accused but also violates municipal laws as an illegal construction. 
  • The SC stated that if only one structure is demolished while similar ones are untouched, it may suggest the motive is to penalise the accused, not remove an illegal construction. 
• Exception: SC clarified that its directions will not be applicable if there is any unauthorised structure in any public place such as roads, streets, or footpaths, abutting railway lines or any river or water body and also to cases where there is an order for demolition made by a court of law. 

Article 142 

• Article 142 of the Constitution empowers the Supreme Court to pass decrees and orders necessary for complete justice in any case.  
• Article 142(1) allows the Court to issue binding orders across India, enforceable as prescribed by law or the President.  
• Article 142(2) grants the Court powers to secure attendance, discovery of documents, or punish contempt.  
• Over time, this provision has been used to ensure "complete justice" and address perceived legislative gaps. 

What is the Significance of the Supreme Court Guidelines? 

• Separation of Powers: The verdict emphasises that the judiciary holds the power to decide guilt and determine if any state organs have overstepped their limits. 
  • The executive cannot replace the judiciary in performing its core functions. 
• Rule of Law: The Court stated that it is impermissible for the executive to impose demolition as punishment without a proper trial. This upholds the rule of law by ensuring that state actions do not overstep constitutional boundaries. 
  • Demolitions that disproportionately affect certain communities (like slum dwellers) can be challenged as discriminatory under Article 14. 
• Accountability of Officials: By requiring that demolition actions be publicly scrutinised and accompanied by detailed records (such as video recordings and inspection reports), the guidelines aim to prevent abuses of power and foster greater accountability. 
• Right to Shelter: Demolition affecting the entire property, including those who are not accused, would be unconstitutional as it infringes on the fundamental right to shelter. 
  • Right to life with dignity under Article 21 of the Indian Constitution includes the right to shelter.  
  • Article 300A guarantees that no person shall be deprived of their property except by law. This provision emphasises that property can only be taken away following due process and under valid laws. 
• Protection of Individual Rights: The Court’s insistence on due process and the separation of powers protects individuals from arbitrary state actions and ensures that rights are not violated under the guise of law enforcement. 
• Geneva Convention 1949: Article 87(3) of the Geneva Convention 1949 prohibits collective punishments.  
  • Such demolitions also violate Article 51 of Indian Constitution which mandates that India must respect international treaties and laws. 

Why is Bulldozer Justice  a Concern? 

• Rising Punitive Demolitions: A 2024 estimate by the Housing and Land Rights Network (HLRN) found that authorities demolished 153,820 homes in 2022 and 2023, displacing over 738,438 people across rural and urban areas. 
• International Covenant on Civil and Political Rights (ICCPR): Article 17 of the ICCPR states that everyone has the right to own property individually or with others, and no one shall be arbitrarily deprived of their property. 
• Collective Punishment: SC acknowledged that demolition drives not only target the alleged perpetrators of an offence but also impose a form of “collective punishment” on their families by destroying their place of dwelling. 
• Instant Justice: Demolitions have been justified as actions against encroachment or unauthorised construction. Such state-sanctioned acts of punitive violence have been hailed as a form of “instant justice.” 

Other Judicial Pronouncements Related to Property Demolitions 

• Maneka Gandhi Case, 1978: The SC expanded the scope of "procedure established by law" by ruling that it must be just, fair and reasonable, thereby introducing the principle of "due process of law." 
  • Therefore, demolitions based on suspicion or unfounded allegations contradict the principles of justice, fairness, and non-arbitrariness. 
• Olga Tellis Case, 1985: The Supreme Court affirmed that Article 21, guaranteeing the right to life, also includes the right to livelihood and shelter. 
  • It means demolishing homes without due process violates constitutional rights. 
• KT Plantation (P) Ltd Case, 2011: SC ruled that the legislation providing for deprivation of property under Article 300-A must be just, fair, and reasonable. 

What are Challenges in Implementation of SC Guidelines? 

• Reliance on Political Will:  The political pressures to use demolition as a form of retribution or deterrence could persist, especially in politically charged environments. 
• Culture of Impunity: While the guidelines impose accountability on officials, historical examples, such as the court’s previous attempts to address issues like hate speech or mob lynching, suggest that similar efforts have not always led to substantial outcomes or accountability. 
• Lack of Oversight: There remains a risk that local authorities or officials may find ways to circumvent these rules, especially in regions where judicial oversight is weaker.  
• Long-Term Cultural Change: The guidelines alone may not be sufficient to change the broader cultural and institutional practices that allow for such actions in the first place.  

Way Forward 

• Upholding the Rule of Law: All state actions must be in strict compliance with the law. The legal system must distinguish between criminal justice and collective punishment, ensuring the presumption of innocence is upheld. 
• Enhancing Judicial Oversight: Specialised tribunals should be established to specifically deal with disputes related to property demolitions having powers to review government decisions. 
• Alternative Dispute Resolution: Mechanisms such as mediation and arbitration should be actively promoted as an effective way to resolve disputes related to property rights and demolitions.  
• Rehabilitation Plans: It is vital to create detailed rehabilitation plans for individuals impacted by demolitions having provisions for alternative housing, livelihood support, and access to mental health services. 

Drishti Mains Question: 

How do Supreme Court’s guidelines on property demolitions in the context of 'bulldozer justice.' reinforce the principles of due process, transparency, and accountability?