'Right To Shelter A Fundamental Right': Supreme Court Issues Directions Against 'Bulldozer Action' By Executive

The Supreme Court pronounced judgment on Wednesday (13 November) on petitions seeking directions against "bulldozer actions" by state governments to demolish properties of persons accused of crimes.

Justice Bhushan Ramkrishna Gavai emphasised the importance of having a home, the rule of law in a democratic setup, and the fairness of the criminal justice system where an accused is not prejudged.

The court considered the rights guaranteed under the Constitution that provide protection to individuals from arbitrary state action and ensured individuals that their properties will not be taken away arbitrarily.

Justice Gavai also emphasised the separation of powers where the executive should not act as the judiciary and said, "Public officials who take law in their hands and act in such high-handed manner must be fastened with accountability."

"The executive can't declare a person guilty. If based only on allegation, it demolishes his house, it would strike at basic principle of Rule of Law. Executive can't become a judge and decide to demolish an accused's property," he added.

The court warned the executive will have to face 'heavy hand of the law' if it abuses power. "Right to shelter, tracing it to Article 19, has been held to be a fundamental right," the judgment said.

"If persons have to be dis-housed, authorities must satisfy that demolition is the only option available...Instead of demolishing part of the house, etc.," the court said referring to Article 21, LiveLaw reported.

The court then passed certain directions but exempted any unauthorised construction on public land and where there is demolition order by Court of Law. Following directions were passed:

1. No demolition should be carried out without prior show cause notice returnable either in accordance with the time provided in local municipal laws or within 15 days from the date of service, whichever is later.

2. The notice shall be served upon owner by registered post. It shall also be fixed on outer portion of structure. Notice shall contain nature of unauthorised construction, details of specific violation and grounds of demolition.

3. Designated authority shall give opportunity of personal hearing to accused...minutes of such meeting shall be recorded. Final order of authority shall contain contentions of noticee.

4. Proceedings of demolition shall be videographed. Demolition report should be displayed on a digital portal. Violation of any direction would lead to initiation of contempt proceedings.

5. Officers should be informed that if demolition is found to be in violation, they will be held responsible for restitution of demolished property and payment for damages at their personal cost.

6. If designated authority finds that only part of construction is unauthorised, it must state why the extreme step of demolition is the only option, instead of compounding demolishing only part of property.

7. To prevent any allegations of notice back-dating, as soon as show cause notice is duly served on owner/occupier, intimation shall be sent to office of Collector, District Magistrate. Automated acknowledgment to be should by their office.

8. Every municipal local authority shall assign a designated digital portal within three months from today, wherein details regarding service, pasting of notice, the reply, and order passed should be available.

9. There shall be opportunity for appellate, judicial scrutiny of final order of demolition. Regardless of whether statute provides for appellate authority and time for filing, order not to be implemented for 15 days from date of receipt.

The court concluded by saying that if a person's house is demolished, merely because he is an accused/convict, without following process of law, it would be "totally unconstitutional" for more than one reason.