Demolition of property – Demolition of property of a person by the State machinery merely because he is an accused or a convict, that too without following due process prescribed by law, is totally unconstitutional:
Held: 1. 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’ – In such matters the public officials, who take the law in their hands, should be made accountable for such high-handed actions – For the executive to act in a transparent manner so as to avoid the vice of arbitrariness, 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. [Paras 53, 54]
2. If a citizen’s house 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, it will be totally unconstitutional for more than one reason – Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review – Only on the basis of the accusations, if the executive demolishes the property/properties of such an accused person without following the due process of law, it would strike at the basic principle of rule of law and is not permissible – The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties – Such an act of the executive would be transgressing its limits. [Para 71]
3.1. 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 – 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 – 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. [Paras 72, 73, 74]
3.2. Even in the cases consisting of imposition of a death sentence, it is always a discretion available 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]
4. There is another angle to this problem – It is not only the accused who lives in such property or owns such property – If his spouse, children, parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged accused person? What is their mistake if their relative is arrayed as an accused in some complaint or F.I.R.? 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 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, would be wholly unconstitutional. [Paras 76, 78]
5. Though in some cases it may be by sheer coincidence that the properties which were in breach of local municipal laws governing them also happen to belong to the accused persons, however, 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, however, the authorities will have to satisfy the court that it did not intend to penalize a person accused by demolishing the structure. [Para 82]
Demolition of property – Must be the only option available – Right to shelter – A facet of Art.21 of the Constitution: Held: If the persons are to be dishoused, then for taking such steps the concerned authorities must satisfy themselves that such an extreme step of demolition is only available and other options including compounding and demolition of only part of the house property are not available – Also, construction of a house has an aspect of socio-economic rights – For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations – A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future – Having a house or a roof over one’s head gives satisfaction to any person – It gives a sense of dignity and a sense of belonging – If this is to be taken away, then the authority must be satisfied that this is the only option available. [Paras 84, 86]
Demolition of property – Collective punishment, if permissible: Held: 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 – Our constitutional scheme and the criminal jurisprudence would never permit the same. [Para 88]
Constitution of India – Art.142 – Demolition of properties of persons accused of criminal offences – Directions issued to allay fears with regard to arbitrary exercise of power by officers / officials of the State:
Held: 1. 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 – Further, even in cases of persons who do not wish to contest the demolition order, sufficient time needs to be given to them to vacate and arrange their affairs. [Para 90]
2.1. It is necessary to issue the following directions in exercise of power under Article 142 of the Constitution – These directions however will not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law. [Paras 90, 91]
2.2. Notice: No demolition should be carried out without a prior show cause notice returnable either in accordance with the time provided by the local municipal laws or within 15 days’ time from the date of service of such notice, whichever is later – As soon as the show cause notice is duly served, intimation thereof shall be sent to the office of Collector/District Magistrate of the district digitally by email and an auto generated reply acknowledging receipt of the mail should also be issued from the office of the Collector/District Magistrate – The Collector/DM shall designate a nodal officer and also assign an email address and communicate the same to all the municipal and other authorities in charge of building regulations and demolition within one month – The notice should also specify the date on which the personal hearing is fixed and the designated authority before whom the hearing will take place – Every municipal/local authority shall assign a designated digital portal, within 3 months wherein details regarding service/pasting of the notice, the reply, the show cause notice and the order passed thereon would be available.
2.3. Personal hearing: The designated authority shall give an opportunity of personal hearing to the person concerned – The minutes of such a hearing shall also be recorded.
2.4. Final Order: Upon hearing, the designated authority shall pass a final order – The final order shall contain: a. the contentions of the noticee, and if the designated authority disagrees with the same, the reasons thereof; b. as to whether the unauthorized construction is compoundable, if it is not so, the reasons therefor; c. if the designated authority finds that only part of the construction is unauthorized / non-compoundable, then the details thereof – d. as to why the extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available.
2.5. Opportunity of appellate and judicial scrutiny of the final order: If the statute provides for an appellate opportunity and time for filing the same, or even if it does not so, the order will not be implemented for a period of 15 days from the date of receipt thereof – The order shall also be displayed on the digital portal – An opportunity should be given to the owner/occupier to remove the unauthorized construction or demolish the same within a period of 15 days.
2.6. Proceedings of demolition: The proceedings of demolition shall be video-graphed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process – Video recording to be duly preserved – The said demolition report should be forwarded to the Municipal Commissioner by email and shall also be displayed on the digital portal. [Para 91]
3. The authorities hereinafter shall strictly comply with the aforesaid directions – Violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution – If the demolition is found to be in violation of the orders of this Court, the officer/officers concerned will be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages. [Paras 92, 93, 94]
Rule of law – Relevance of – Very foundation of democratic governance – Essential purpose of the rule of law is to prevent the abuse of power:
Held: The law must be just and fair, and also protect the human rights and dignity of all members of society – At the same time, the essential purpose of the rule of law is to prevent the abuse of power – The rule of law is an umbrella concept to protect citizens against the power of the State – It is integral to and necessary for democracy and good governance – The processes enshrined in constitutional law, criminal law and procedure are facets of the rule of law and thus serve to regulate the exercise of executive power. [Paras 19, 30, 33]
Doctrines / Principles – Doctrine of separation of powers, as envisaged in our Constitution:
Held: Executive cannot replace the judiciary in performing its core functions. [Para 44]
Doctrines/Principles – Doctrine of Public Trust and Public Accountability:
Held: Executive exercises its powers as a ‘trustee’ of the citizens and therefore, executive actions must be consistent with maintaining public trust – When executive acts in breach of principles of ‘rule of law’ and ‘separation of powers’, doctrine of public trust and accountability would come into play. [Paras 45, 46] Rights of accused – Protection from arbitrary State action – Institutional accountability:
Held: The State and its officials cannot take arbitrary and excessive measures against the accused or for that matter even against the convicts without following the due process as sanctioned by law – When the right of an accused or a convict is violated on account of illegal or arbitrary exercise of power by the State or its officials or on account of their negligence, inaction, or arbitrary action, there has to be an institutional accountability – 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 malafide manner, he cannot be spared for such an illegal, arbitrary, malafide exercise of power. [Para 62]
Criminal Law – Fairness in criminal justice system – Presumption of innocence and natural justice:
Held: The principle, that the criminal justice process is also to be in accordance with the principle of the rule of law, is very well enshrined in the Constitution – 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 – The right to a fair trial is essential in upholding the rule of law and protecting individual liberties – It ensures that the principles of natural justice and fair process are being strictly followed – An accused cannot be declared guilty, unless proven so beyond reasonable doubt before a court of law – They cannot be declared guilty, unless there is a fair trial. [Paras 63, 64, 66]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Bibhuti Bhushan Bose. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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