Recently, the Supreme Court has raised the questions about the legality of the demolition of houses allegedly belonging to people accused of some crime. The court has decided to lay-down ‘pan-India’ guidelines to address the concerns related to demolition of houses.
The matter was before the division bench of Justice B.R. Gavai and Justice K.V. Viswanathan.
The bench has sought suggestions from the concerned parties for the proposed guidelines.
While neither the old CrPC nor the new BNSS grant any power to demolish a property belonging to an accused or convict, both do provide for seizure, forfeiture, and sale of properties of proclaimed offenders and those derived from criminal activities. However, this power is subject to stringent procedural safeguards, including issuing notice, opportunity of hearing, etc.Rishi Sehgal, Advocate on Record, Supreme Court of India
The Demolition, whether in part on full, can be only undertaken by the authority under the grounds which are in accordance with the municipal law, governing legal construction, and after following the procedure therein. Thus, “Even under the Municipal laws, demolition of unauthorised property can only be done after adhering to due process of law,” said Rishi Sehgal, Advocate on Record, Supreme Court of India.The court has suggested that the guidelines will not be protecting unauthorized constructions. However, emphasising that demolitions should follow legal procedures.
Justice Viswanathan has indicated certain possible points on which guidelines can be laid down such as: Notice, time period, response, reply, order, time for legal remedy, avoid backdating, some communication with central secretariat, the nodal agency, automated reply so that there is no fear. This indicates the guidelines to be in accordance with the natural justice principle. “The Supreme Court has consistently upheld this principle, ensuring that the drastic step of demolition is taken only when all legal avenues have been exhausted and due process has been strictly followed,” said Rishi Sehgal.
The court was hearing a plea against the demolition drive in Delhi’s Jahangirpuri area soon after the 2022 riots.
The petitioner has moved to the court pointing out that many state governments are resorting to the use of bulldozers for the demolition of houses allegedly belonging to people accused of some crime. “The Supreme Court’s observation on bulldozer action establishes that ‘Bulldozer Justice’ is an oxymoron, because using bulldozer on people’s homes is harsh, vindictive, instant but definitely not justice,” said Shimpy Arman Sharma, Partner, Anand Sharma and Associates.
This is much needed and long-awaited observation from Court. After all India is country which follows Rule of Law and any policy of demolishing People’s home as a form of extra-judicial punishment must be stopped.Shimpy Arman Sharma, Partner, Anand Sharma and Associates
Justice Viswanathan has observed the need for a guideline on demolishing unauthorised buildings to be enforced across the state. The guidelines will provide a mechanism, and uniformity within the framework ensuring compliance with natural justice principle. Thus, “The Supreme Court’s decision to lay down guidelines is a significant step towards ensuring that the state’s power is exercised within the bounds of legality and fairness. The guidelines proposed by the Court will help establish a clear and uniform process, ensuring that actions are not taken arbitrarily and that the rights of the accused are respected,” said Yatharth Rohila, Partner, Aeddhaas Legal LLP.
The principle that no structure, whether residential or commercial, can be demolished without following due process is central to the protection of individual rights. This case reinforces the idea that the state must act responsibly and within the confines of the law, without resorting to extrajudicial measures.Yatharth Rohila, Partner, Aeddhaas Legal LLP
He adds, “The Court’s intervention ensures that justice is not only done but is seen to be done, protecting citizens from potential misuse of power.”
The top court has underscored the importance of due process and natural justice before undertaking of any demolitions. Thus, “In safeguarding the rule of law, the Supreme Court has underscored that justice must not be reduced to a display of brute force,” said Anmol Gupta, Advocate Punjab and Haryana High Court.
The court has expressed strong disapproval of ‘bulldozer justice,’ emphasizing that state actions, particularly those involving demolitions, must adhere to due process and constitutional safeguards. The court has called for clear guidelines to prevent arbitrary use of power, ensuring that the fundamental rights of individuals are not trampled upon by executive overreach.Anmol Gupta, Advocate Punjab and Haryana High Court
Adding that, “The potential guidelines could serve as a critical check against the misuse of administrative power, reaffirming the importance of legal procedures and the protection of fundamental rights.”
The guideline will have a significant impact considering the questions to be of fundamental character such as rule of law, due process and non-arbitrariness of the law. “The Supreme Court has criticised the increase of demolition as bulldozer justice where the court felt it necessary to make a finding that such actions should be with due process of law and cannot be arbitrary or driven by the whims and fancies of the administration,” said Alay Razvi, Partner, Accord Juris.
The guidelines proposed should be clear and precise, considering the courts mot to be the forum of policy-making. However, the judicial principles can be used as means for framing guidelines “more precise and clear to set some legal precedents,” said Alay Razvi.
The bench has scheduled matter for further hearing on September 17.
