The recent judgment of the Supreme Court is noteworthy as it is the first final order addressing the series of illegal demolitions that have affected numerous states. This landmark ruling unequivocally declares such extra-judicial demolitions as illegal. It establishes comprehensive guidelines for municipal authorities to adhere to when undertaking property demolitions, while also assigning personal accountability to the officers responsible for carrying out these actions. However, it leaves significant gaps that allow authorities to continue arbitrarily demolishing homes, as it does not apply to alleged encroachments on public land.
Indian law lacks provisions that explicitly permit the demolition of property as a punitive measure. Despite this, the practice has become prevalent, particularly in states governed by the Bharatiya Janata Party (BJP). According to a report published in February by the human rights organization Amnesty International, authorities in four BJP-ruled states and one Aam Aadmi Party-governed state punitively demolished 128 structures, primarily belonging to Muslims, between April and June 2022.
In 2022, three public interest litigation petitions were filed in the Supreme Court in opposition to this matter. On September 17, as an interim order, a bench of Justices BR Gavai and KV Viswanathan temporarily halted demolitions, nationwide. However, this order did not encompass unauthorized constructions on public roads, footpaths, railway lines, or public areas. Despite this order, extra-judicial demolitions still occurred in Assam and Gujarat during September. The Supreme Court eventually halted the demolitions in Assam, but declined to intervene in Gujarat. The bench later reserved its judgment on October 1.
In its recent verdict, the bench cited various legal principles and constitutional safeguards to reach its conclusion that the executive branch of the government lacks the authority to adjudge guilt and demolish residential or commercial property as punishment. Furthermore, such actions cannot be taken against convicted individuals without adhering to the prescribed legal procedures. Justice Gavai invoked the principle of the rule of law—a comprehensive legal concept emphasizing that all individuals are subject to and equal before the law—to assert that State actions must be guided by established legal principles rather than the arbitrary discretion of municipal authorities.
Justice Gavai also mentioned the constitutional principle of separation of powers. The executive branch cannot assume the core adjudicatory function of the judiciary, which is to determine guilt or impose punishment, he said. He also invoked the doctrine of public trust, which posits that the executive exercises its powers as a “trustee” of citizens, to assert that the principles of public accountability and transparency apply to the exercise of government power. The judgment stated that responsibility for inaction or irresponsible actions should be assigned to the responsible officers.
Justice Gavai’s judgment further relied on the rights of the accused: their right to dignity, protection from cruel or inhuman treatment, and punishment in accordance with the law. It referred to the presumption of innocence under criminal law, the principle that an accused cannot be declared guilty unless proven so beyond a reasonable doubt before a court.
The judgment also included in its ambit the rights of the family members of the accused, whose homes have been demolished as well. It emphasized their right to shelter, protected by Article 21 of the Constitution. It also noted that demolishing a house because one resident is accused or convicted of a crime inflicts collective punishment on the entire family. This is not allowed under India’s constitutional framework.
During the hearings, the solicitor general of India, representing the Union government and various state governments, asserted that the demolition actions were taken against those found guilty of encroaching on public land or violating municipal laws. He maintained that any coincidence between the demolished properties and individuals accused of offenses was purely coincidental. However, the apex court dismissed this argument.
Justice Gavai’s judgment stated that singling out only one structure for demolition among several suggests mala fide or dishonest intent. This raises the presumption that the actual motive was to punish an accused individual without a fair trial.
The Court emphasized that the burden of proof lies with the authorities to demonstrate the absence of any intent to penalize the accused. The Court further mandated that authorities should refrain from demolition if the unauthorized structures can be regularized or partially removed.
The Court issued detailed guidelines on the procedure to be followed by municipal authorities for conducting demolitions:
- No demolition should be carried out without a show cause notice served at least 15 days in advance. A personal hearing must also be granted to the individual whose property is proposed for demolition. The final order should incorporate the noticee’s arguments, reasons for any disagreements, the possibility of legal regularization of the construction, and justification for complete demolition in cases where partial measures are not feasible.
- The order must not be executed for 15 days to allow for appeals. If any unauthorized construction is not removed by the owner within 15 days, the authorities may proceed with the demolition, provided there is no stay from a higher authority.
- If the affected party does not challenge the order, sufficient time must be given to vacate and manage their affairs. The demolition must also be video-recorded, and a report listing the officials involved should be submitted to the municipal commissioner and posted publicly. Videos must be preserved for records.
- Finally, any officer conducting an unlawful demolition would bear personal responsibility for restoring the property and paying damages.
While the directives are comprehensive, the Court established a notable exception. It determined that the guidelines do not extend to unauthorized constructions in public areas such as roadways, sidewalks, or near bodies of water, or in instances where a Court has mandated demolition. This exception is consistent with the one previously outlined by the Court in its interim stay order issued in September. Following that order, numerous demolitions continued under the guise of eliminating encroachments from public spaces. Frequently, municipal authorities have executed punitive demolitions under the pretence of removing structures erected on sidewalks.
The judgment, however, fails to address the numerous demolitions that transpired during the pendency of the petitions before the Supreme Court. It neither provides compensation to the affected individuals nor establishes accountability for the responsible officers. The Court has, however, acknowledged the unconstitutional nature of these demolitions.
In light of the recent verdict, opposition parties expressed their hopes for an end to the “bulldozer terror” and “jungle raj” that have plagued Uttar Pradesh.
The Uttar Pradesh government welcomed the apex court’s decision and clarified that it was not involved in the case. A spokesperson for the Yogi Adityanath government emphasized the significance of the rule of law in ensuring good governance and expressed optimism that this ruling would instil greater fear of the law among criminals, thereby facilitating the control of mafia elements and organized professional criminals. The spokesperson reiterated that the rule of law applies to all individuals without exception.
Uttar Pradesh cabinet minister Om Prakash Rajbhar also welcomed the order. He said: “The government never demolishes anyone’s personal property. A bulldozer is run on illegal occupations of public properties. It was the High Court’s decision; we do not do it on our own.” Rajbhar added that any official found guilty of illegal action will face consequences. “The court’s orders will be followed. If anyone is found guilty, action will be taken against them,” he said.
The opposition leaders commended the verdict and criticized the Yogi administration. AIMIM leader Asaduddin Owaisi asserted that Prime Minister Narendra Modi had previously praised “bulldozer raj”, which the Supreme Court characterized as “a lawless state of affairs”.
Mayawati, BSP chief and former Uttar Pradesh chief minister, said that the order should put an end to bulldozer terror. “After today’s decision of the honourable Supreme Court regarding bulldozer demolitions and the related strict guidelines, it should be expected that UP and other state governments will manage public interest and welfare properly and smoothly and the terror of bulldozers will definitely end now,” she posted on X.
The Samajwadi Party also praised the Supreme Court’s decision and stated that “bulldozer action” was “completely unjust, unfair, unconstitutional, and illegal”.
—By Abhilash Kumar Singh and India Legal Bureau