ON November 13, 2024, the Supreme Court, while exercising its power under Article 142 of the Constitution of India In Re: Directions in the matter of demolition of structures, issued guidelines to ensure fair procedure to be followed for the demolition of illegal structures.The new demolition guidelines by the division Bench comprising Justices B.R. Gavai and K.V. Viswanathan claim to balance due process with decisive action, promising transparency, fairness and accountability in handling unauthorised constructions.Justice Gavai, before elucidating the guidelines, analysed the intersection of demolition with the rule of law, its relevance to the separation of power, the doctrine of public trust and accountability, the right to shelter, natural justice and the presumption of innocence.Bulldozing the rule of law and blurring the separation of powersThe rule of law, as conceptualised by A.V. Dicey, states that no person is punishable except in accordance with the procedure established by law, no person is above the law and it is the general principles of law that determine the rights of the people, i.e., the legal spirit predominates.While reiterating the rule of law, Justice Gavai has observed that “there is no scope for arbitrariness by officials, and that no one can be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.” .Officers of the state government undertaking adjudicatory function and “punishing an undertrial person with the demolition of his property is impermissible in our constitutional set-up”, Justice Gavai stated..Hence, it can be said that the rule of law is a safeguard against arbitrary use of State power. Also, by affirming the separation of power as a basic structure, it was observed that the executive cannot replace the judiciary in performing its core adjudicatory function.Officers of the state government undertaking adjudicatory function and “punishing an undertrial person with the demolition of his property is impermissible in our constitutional set-up”, Justice Gavai stated.Eroding public accountability and trustThe court has observed that the executive exercises its power as a ‘trustee’ of citizens. Hence, its action must be “consistent with maintaining public trust”.State action that causes loss is actionable under public law. The court, while relying on Delhi Airtech Services Private Limited and another versus State of Uttar Pradesh and Another, invoked the doctrine of ‘full faith and credit’ which mandates that public officers “faithfully discharge their duties to elongate public purpose”.Accentuating the importance of State responsibility, the court remarked: “Greater a power to decide, higher is the responsibility to be just and fair.” The court has ascribed dual accountability towards ‘public servants’, viz. toward the public and State respectively..The Supreme Court’s ban on demolition: The right thing to do.Referring to Nilabati Behera versus State of Orissa and Others, the court observed, “No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do; and will not do things that they ought to do.”The court stressed upon the rights of the accused and convicts. Firstly, they have rights and safeguards flowing from the Constitution and criminal law. Secondly, the State cannot violate due process established by law when dealing with them. Thirdly, if the right of the accused or convict is violated due to arbitrary State action, institutional accountability arises.The fragile state of the right to shelterOne can infer by reading the judgment that a humanistic approach has been adopted by the Supreme Court on the demolition of houses and properties of accused and convicted persons.The court has clarified that the executive does not hold the power to demolish the house of a person who has been accused of a crime, the rule is innocent until proven guilty.The court observed, “If only on the basis of the accusations the executive demolishes the properties of such an accused person without following the due process of law, it would strike at the basic principle of the rule of law and is not permissible.”.The court has clarified that the executive does not hold the power to demolish the house of a person who has been accused of a crime, the rule is innocent until proven guilty..The court recognised the fact that other people may be sharing a roof with the person accused or convicted of a crime. The court emphasised, “A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future.” Arbitrary exercise of power by the executive in the demolition of houses of people who are accused of a crime would ‘collectively punish’ the other members of the family.One of the submissions made by the Solicitor General of India was that it was a “mere coincidence” that the houses demolished belonged to some accused persons. However, the court noticed the arguments advanced by the petitioners regarding the timeline within which demolitions were carried out by the authorities.It suggested, “The time gap between the persons being named as an accused and demolition of their properties made it apparent that the punishment of demolition was inflicted by the executive on such persons being arrayed as an accused.”Considering the above submissions, the court, in its judgment, observed that when a structure is demolished while similar ones nearby are left untouched, it raises suspicion of mala fide intent. If the occupant was recently involved in a criminal case, it may suggest the demolition’s motive is punitive rather than lawful enforcement.While this presumption is rebuttable, authorities must demonstrate that their actions were not intended to penalise the accused. The court further remarked that the possibility of compounding of unauthorised construction must be evaluated before the demolition of an entire building..‘Bulldozer’ not above the law: HC seeks explanation from Haryana government on Nuh and Gurugram demolition drive post violence.If there are only some parts of the building that must be removed, in such cases the demolition of the entire building is disproportionate.Guidelines in briefThese guidelines clarify that they do not apply to demolitions of unauthorised structures in public places— like roads, footpaths or near railway lines— or to demolitions ordered by a court. The court has divided the guideline into five broad headings as follows.NoticeBefore any demolition, authorities must issue a show cause notice, which should allow the timeframe specified by local municipal laws or a minimum of 15 days from receipt, whichever is longer. This notice must be sent by registered postal address to the owner or occupant and prominently displayed on the structure.To prevent claims of backdating, an email notification must be sent to the collector’s office with a digital acknowledgment. The collector must assign a nodal officer and provide an email contact for all relevant authorities.The notice should have details about the nature of the unauthorised construction, specific violations, grounds for demolition, required documents for a reply and the date of the personal hearing with the designated authority. Within three months, all municipal authorities must create a digital portal to provide transparent access to notices, replies and orders for public reference..Arbitrary exercise of power by the executive in the demolition of houses of people who are accused of a crime would ‘collectively punish’ the other members of the family..Personal hearingThe guidelines require that designated authorities offer the individual a chance for a personal hearing before any demolition action. Additionally, the proceedings and minutes of this hearing must be officially recorded to ensure transparency and accountability.Final OrderAfter the personal hearing, the designated authority must issue a final Order. This Order should include the concerns raised by the individual and, if the authority disagrees, the reasons for rejecting them. It must specify with reasons whether the construction is compoundable or not.If only a part of the structure is unauthorised or non-compoundable, those details should be outlined. The Order should also explain why full demolition is necessary, and why alternatives like partial demolition or compounding are not a practical solution.Final Order: Avenues for appeal and judicial reviewAfter issuing the final Order, authorities must allow 15 days before implementing any demolition, whether or not an appeal process is specified by law. This Order should be posted on a digital portal. During this time, the owner or occupant is given the chance to voluntarily remove or demolish the unauthorised structure..Mehrauli mosque demolition: Dangerous pattern and lack of due process.Only if the structure remains and there is no legal stay from an appellate authority or court, will the authority proceed with the demolition. Before any action, an inspection report must be prepared and signed by two witnesses (panchas) to ensure accountability.Procedure of demolitionDuring demolition, the entire process must be video-recorded to ensure transparency, with a demolition report listing all involved police and civil personnel. This video clip is to be preserved, and the demolition report should be emailed to the municipal commissioner and displayed on the designated digital portal for public access.Analysis of the guidelinesAlthough the guidelines mandate a show cause notice and a 15-day minimum time to carry out the demolition, the said period falls short for a person who is not economically sound enough to engage legal help and does not understand the intricacies of the law.The digital portal is proposed as a central repository for notices and final Orders, but its effectiveness depends on adequate implementation and accessibility.Without provisions ensuring user-friendliness and accessibility to vulnerable populations, the portal risks becoming another bureaucratic barrier rather than a true transparency tool..The guidelines place significant discretionary power in the hands of municipal authorities, with no provision for independent oversight or review. An external review mechanism could have safeguarded against arbitrary demolitions and potential conflicts of interest..Also, though 15 days have been granted to appeal, there is limited procedural detail on ensuring a fair appellate review. Without a robust appellate mechanism, this brief window may be insufficient, especially for those unfamiliar with digital platforms or lacking immediate access to legal assistance.Further, the guidelines place significant discretionary power in the hands of municipal authorities, with no provision for independent oversight or review. An external review mechanism could have safeguarded against arbitrary demolitions and potential conflicts of interest.One of the important mandates placed by the court is on the liability of officers carrying out illegal demolition. If a demolition is conducted in contravention of a court’s Orders, the responsible officer(s) will bear personal liability for restoring the demolished property at their own expense, along with paying for additional damages. This take of the Supreme Court can instil a sense of responsibility and liability in officers.
