Putting the brakes on ‘bulldozer justice’

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The Supreme Court of India has invited suggestions from the parties concerned to frame appropriate pan-India guidelines on extra-legal demolitions. The order comes in the wake of multiple instances of demolitions where the houses and building establishments of persons accused of certain crimes have been razed without following due process. These demolitions have become commonplace over the last few years, targeting vulnerable groups and often leaving them without any legal recourse.

This selective, yet arbitrary, state action has rendered the right to housing meaningless since evictions are brazenly carried out by local authorities, often at odd hours, without any alternative facility or engagement for rehabilitation. The inequality, social conflict and segregation that follow such action run the risk of intensifying the marginalisation of certain communities and go against the spirit of the Constitution and due process enshrined in criminal procedure laws.

Editorial | ​Demolition squad: On the Supreme Court and ‘bulldozer justice’

In light of overarching principles of human rights, constitutional values and social justice, there is a strong need to formulate guidelines and re-imagine the existing legal framework which bestows unbridled executive power on municipal authorities to order and execute such demolitions.

The legality of punitive demolitions

Large-scale demolition drives as a means of collective punishment for rioters are becoming rampant. What started with bulldozer action in Delhi’s Jahangirpuri has now spilled over to different parts of the country. The violence that ensued in Nuh, Haryana, due to a clash between two religious groups in 2023, ended with the local administration demolishing a number of homes in the neighbourhood.

Communal riots in Madhya Pradesh’s Khargone also resulted in the demolition of houses and businesses owned by Muslims who were deemed to be ‘alleged rioters’. Quick instinctive action against those perceived to be at odds with the law has emerged as a dangerous pattern of state-driven oppression. In each of these cases, the demolition is justified under municipal laws either on account of action against encroachment or under the pretext of unauthorised construction. The due process envisaged under various judgments of the Supreme Court and High Courts, including Sudama Singh & Ors. vs Government of Delhi and Ajay Maken & Ors vs Union of India are completely bypassed.

Fast-tracked bulldozer justice in Madhya Pradesh

This ‘tough on crime’ or ‘eye for an eye’ approach has escalated to become a political brand for several State governments. Treating demolitions as a fair response to the destruction of public infrastructure undermines existing processes envisaged under criminal laws and constitutes a gross violation of fundamental rights. In the course of devising guidelines for such extra-legal demolitions, the Supreme Court must impose a complete moratorium on the punitive demolition of establishments. In other legitimate instances of demolition, the guidelines should prescribe a strict tripartite procedure to ensure that those at the receiving end are not rendered helpless without any recourse.

Due process in legitimate demolitions

The issue of displacement of persons for varied reasons has for long been a cause of concern. While the United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement, 2019, prescribe directives to address this issue from a humanitarian perspective, multiple court cases in the higher judiciary have dealt with demolition issues in a piecemeal manner over the years. Albeit helpful, these scattered efforts to address the issue have culminated in a myopic view of the problem, leading to temporary solutions. The current task of the Supreme Court — i.e., formulating pan-India guidelines — must look at the issue through a multidimensional lens.

The cardinal rule is that demolitions must be carried out only in exceptional circumstances, and according to the due process established under law. The law must then accurately classify not only the types of buildings or constructions that can be brought down by state actions but also the surrounding circumstances that need to be assessed before any action is taken. The assessment of the surrounding circumstances must strike a balance between state action and the right to adequate housing and resettlement while bearing in mind that such violations have come to be systemic. There is also a need to analyse data on demolitions that have taken place over the last few years to identify clear patterns and better understand the existing gaps and deficiencies in the process.

Once broader subject-matter-based issues have been addressed, an analysis should be done for procedural steps that can be incorporated into the relevant legislation and rules. The procedural guidelines should be structured in a phased manner, to add multiple checkboxes at each stage which need to be ticked before any adverse or irreversible step is taken.

In the first phase, i.e., pre-demolition, the burden of proof to show cause should be shifted from the affected person and placed on the authority to show why no other option other than demolition and displacement of affected persons is needed for public good and how the relevant human rights are being protected in the process. A reasoned notice for demolition, including information about land records and resettlement plans, should be widely publicised, giving ample time for those concerned to analyse the situation, seek legal advice and respond to the show-cause notice. An independent committee, appointed by the State government, including judicial and civil society representatives, should review the proposed demolition (particularly when a large number of houses in a neighbourhood are proposed to be demolished) and provide technical assistance to the affected parties about their rights and options. Affected persons must be engaged in discussions about alternative housing options and compensation. During this phase, the needs of vulnerable groups such as children, the elderly, and disabled persons should be addressed. A minimum period of a month should be provided between the intimation of notice to demolish and its execution, allowing affected individuals time to retrieve their belongings.

In the second phase, i.e., during the demolition, the use of physical force should be minimised in the eviction process and the use of heavy machinery such as bulldozers should be avoided. There should be a requirement for the presence of government officials who are not a part of the authority demolishing the construction. The time for the demolition should be pre-decided and surprise demolitions should be cause for punitive action against the authority.

As a part of the third phase, i.e., rehabilitation, adequate and proper temporary or permanent rehabilitation should be provided to the persons concerned to ensure that they are not left homeless. A speedy grievance redress mechanism needs to be established under every law that allows for demolition to afford the affected persons a chance to challenge the decisions that may have been taken at any stage. Remedies such as compensation, restitutions and return to the original home must be carved out within the law.

Affixing personal liability

While the demolitions carried out across different parts of India reflect varied patterns, the golden thread that runs through all such instances is the lack of due process and blatant disregard for directives issued by the judiciary in the past. Municipal laws, which empower authorities to carry out such demolitions, usually provide complete impunity to officials under the ‘good faith’ clauses housed under such laws. Such clauses prevent the initiation of judicial action against those who unscrupulously carry out demolitions. While laying down pan-India guidelines is most definitely a welcome step, sensitisation of law enforcement personnel to follow existing directives on the subject matter is the need of the hour. Simultaneously, avenues to affix personal liability on those who order such forced evictions and demolitions should be explored to ensure that there are checks and balances in the powers wielded by officials.

Pragya Singh and Lakshita Handa are Senior Resident Fellows at the Vidhi Centre for Legal Policy. The views expressed are personal