'Executive Cannot Act As Judge': Supreme Court's Big Blow To 'Bulldozer Justice'

The top court held that demolishing home of accused without due process is unconstitutional.

The court has said that violation of any of its guidelines by state will lead to contempt of court proceedings against the erring officials and costs will be imposed on them.

Source : PTI

The Supreme Court on Wednesday held that the state governments cannot act as judge and demolish properties of any person accused or convicted in a crime without following due process of law. The top court while laying down guidelines for the state government and its officials said that executive acting arbitrarily in demolishing properties is violative of principles of 'rule of law' and 'separation of powers' which are fundamental part of the Constitution. The court added that violation of any of its guidelines by state will lead to contempt of court proceedings against the erring officials and costs will be imposed on them.

"Adjudicatory functions are entrusted to the judiciary. The executive cannot replace the judiciary in performing its core function...We have referred to the doctrine of public trust and public accountability. We have concluded, if executive demolishes house of person arbitrarily merely because he is accused, it violates principle of separation of powers," the top court said.

The apex court held that public officials who take law in their hands and act in such high-handed manner must be fastened with accountability. 

A bench of Justices B R Gavai and K V Viswanathan while pronouncing pan-India guidelines for demolition of illegal properties said that  there is no place of highhanded approach of the state and its machinery to demolish private or commercial properties of accused persons by assuming the role of judiciary and in pre-judging the guilt of the accused persons, which can only be determined by the judiciary. 

Supreme Court Warns State Government Against 'Pick And Choose'

The top court said that even if a house of an accused is illegal, the authorities cannot pick and choose to demolish the accused person's house without touching similar illegal structures in the vicinity. "This is wholly illegal," the bench said.

The top court held that demolishing homes of accused without due process is unconstitutional.

While observing that it is not a happy sight to see women and children rendered homeless while their houses are demolished, the top court said that even if a person is convicted in a heinous crime, the government cannot raze his property.

"It is not a happy sight to see women and children on roads after demolition overnight without time to appeal," Justice BR Gavai  observed.

Emphasising on the separation of powers and the need to follow the due process of law, the Supreme Court said that the state cannot penalise accused before trial. It added that rule of law compliance must apply even for municipal laws.

People To Be Given Appropriate Time To Respond To Demolition Notices

While laying down guidelines, the top court said that people have to be given adequate time to respond to and challenge demolition notices. The court said if they don't wish to challenge the eviction notice then they should be given appropriate time to evict the properties.

"Heavens will not fall if the authorities lend them a hand before some period." Justice BR Gavai said while pronouncing the verdict.

The court said that a minimum 15 days show cause notice should be given before demolition. And the notice should be sent by a registered post and pasted on the outer portion of the house. The persons to whom notices are issued will get 15 days time each for appellate process if any as well as to remove illegal construction by themselves.

The top court further ordered forming a digital portal for such notices within 3 months. 

The court further said that if demolition is found necessary, reasons should be given as to whether full property or only part that is illegal will be razed.

If Demolition Done Without Following Due Process Of Law, Family Will Be Entitled To Compensation

Dealing a heavy blow to the 'Bulldozer justice' resorted to by state governments, the Supreme Court said that if houses of accused or convicts are demolished without following the process of law, their family will be entitled to compensation and also that those officers who acted arbitrarily or illegally would be proceeded against.

The top court said that all demolition activities will have to be videographed and violation of its guidelines will invite contempt of court case and the erring officials will be liable to pay costs from salary.

Case Background:

The Supreme Court on September 17 imposed an interim stay on any demolition in the country without its permission. The top court passed the direction invoking its special powers under Article 142 of the Constitution.

The passed the said orders in a plea filed by Rashid Khan, a 60-year-old auto-rickshaw driver from Udaipur, who alleged that his house was demolished by the Udaipur district administration on August 17, 2024.

He alleged that this was done after communal clashes broke out in Udaipur after a Muslim schoolboy allegedly stabbed his Hindu classmate who later succumbed to his injuries. Khan is the father of the accused school boy.

The court was also informed about the demolition in Delhi's Jahangirpuri area. On April 16, a Shobha Yatra to celebrate Hanuman Jayanti was organised in Jahangirpuri. However, during the procession, riots broke out between Hindus and Muslims after stones were allegedly pelted at the procession.

On April 19, the chief of BJP's Delhi wing wrote to the North Delhi Municipal Corporation (NDMC), pointing to the illegally constructed homes and establishments in the area that belonged to the alleged rioters.

On April 20, the NDMC, led by Mayor and BJP politician Raja Iqbal Singh, launched a drive to raze encroachments in the area, demolishing several structures in Jahangirpuri, many of which were owned by Muslims.