Summary
In Article 32 petitions against demolition of properties of persons accused of crimes, the Supreme Court held that the executive cannot demolish a person's house or property because he is accused or even convicted, without due process. Doing so usurps the judicial function, violates the rule of law, separation of powers and the presumption of innocence, and imposes collective punishment on family members whose right to shelter is part of Article 21. The Court issued pan-India directions under Article 142 on notice, hearing, reasoned orders, time to seek review and vacate, videography, and personal liability of officers.
Issues
- Whether the residential or commercial property of a person accused, or convicted, of an offence can be demolished by the executive as a punitive measure without following due process of law.
- Whether such demolitions violate the rule of law, separation of powers, the presumption of innocence and the right to shelter under Article 21 of family members and other occupants.
- What procedural safeguards and accountability measures should govern demolition of unauthorised structures, and in which cases they should not apply.
Provisions considered
- Article 21, Constitution of IndiaThe right to shelter was held to be a facet of the right to life; removing shelter from innocent family members or co-occupants of an accused was held wholly unconstitutional, and demolition must be the only available option after considering compounding or partial demolition. (¶¶ 76, 77, 78, 84, 86, 87, 88)
- Article 14, Constitution of IndiaArbitrary, pick-and-choose demolition of one structure while similar structures nearby are left untouched was treated as indicating mala fides, giving rise to a rebuttable presumption that the action was punitive. (¶¶ 53, 82)
- Article 142, Constitution of IndiaInvoked to issue binding directions on notice, personal hearing, final order, appellate and judicial scrutiny, and the conduct of demolitions, with contempt, prosecution and personal restitution as consequences of breach. (¶¶ 90, 91, 92, 93, 94)
Held
- Under the rule of law, which is part of the basic structure, no one can be made to suffer in body or goods except for a distinct breach of law established before the ordinary courts; only courts can adjudicate guilt and impose punishment. (¶¶ 16, 22, 29, 32, 33)
- The executive cannot take over the adjudicatory function by declaring an accused guilty and punishing him with demolition of his property; such action transgresses the separation of powers and is wholly impermissible under the constitutional scheme. (¶¶ 44, 53, 71)
- Demolishing a citizen's house merely because he is an accused, or even a convict, without due process is unconstitutional and an abuse of process. Even a convict's property cannot be demolished as a punishment, since punishment can only follow the statutory procedure and the presumption of innocence and a fair trial must be respected. (¶¶ 63, 66, 71, 72, 73, 74, 75)
- Accused persons, undertrials and convicts retain constitutional rights; State officials cannot take arbitrary or excessive measures against them, and violation calls for institutional accountability, including compensation, and action against officers who abuse their powers. (¶¶ 55, 60, 62)
- Public officials exercise power as trustees of citizens and are accountable for high-handed action; officers who take the law into their hands by demolishing property as punishment must be held answerable. (¶¶ 45, 46, 47, 48, 53, 54)
- Demolishing a dwelling shared by family members or other families because one occupant is accused or convicted amounts to collective punishment, which the constitutional scheme and criminal jurisprudence do not permit. (¶¶ 76, 87, 88, 89)
- Where a structure is suddenly singled out for demolition while similar structures nearby are left alone, and an occupant was shortly before implicated in a criminal case, a rebuttable presumption arises that the real motive was to punish the accused; the authority must satisfy the court otherwise. (¶ 82)
- Even for breaches of municipal law, demolition is the extreme step and must be proportionate; the authority must consider whether the construction is compoundable or only partly unauthorised before dishousing anyone. (¶¶ 83, 84, 85, 86)
- The directions do not apply to unauthorised structures in public places such as roads, streets, footpaths, land abutting railway lines or river or water bodies, or where a court has ordered demolition. In other cases they require: a show cause notice served by registered post and affixed to the structure, returnable within the period under local law or 15 days, whichever is later, with digital intimation to the Collector or District Magistrate; a personal hearing with minutes; a reasoned final order addressing compoundability, partial demolition and why demolition is the only option; a 15-day window before implementation to allow challenge or self-removal; an inspection report signed by two panchas; videography and a demolition report on a digital portal. (¶ 91)
- Violation of the directions will attract contempt proceedings in addition to prosecution, and officers responsible for a demolition in breach of them will be personally liable to restore the demolished property at their own cost and to pay damages. (¶¶ 93, 94)
Result
Directions issued under Article 142 for pan-India compliance; violation to attract contempt, prosecution and personal liability for restitution and damages. Registrar (Judicial) to circulate the judgment to all Chief Secretaries and High Court Registrars General; States to issue circulars to District Magistrates and local authorities. Writ petitions to be listed for further orders after four weeks.