New Delhi: The Executive cannot replace the Judiciary and legal process should not prejudge guilt of an accused, the Supreme Court said today, taking a tough stand on the issue of 'bulldozer justice' and laying down guidelines for carrying out demolition.
The bench of Justice BR Gavai and Justice KV Viswanathan delivered its judgment on petitions challenging bulldozer action against people accused of crimes. This trend, which caught on in several states, is referred to as 'bulldozer justice'. State authorities have, in the past, said only illegal structures were demolished in such cases. But several petitions were filed before the court, flagging the extrajudicial nature of the action.
Justice Gavai said it is the dream of every family to have a house and an important question before the court was whether the Executive should be allowed to take away someone's shelter. "It is a dream of every person, every family to have a shelter above their heads. A house is an embodiment of the collective hopes of a family or individuals' stability and security. An important question as to whether the executive should be permitted to take away the shelter of a family or families as a measure for infliction of penalty on a person who is accused in a crime under our constitutional scheme or not arises for consideration," the judgment said.
"For considering the said question, we will be required to consider the principle of the rule of law, which is the very foundation of democratic governance. We will also have to consider the rights guaranteed under the Constitution that provide protection to individuals from arbitrary state action. We will also have to consider in this case the issue with regard to fairness in the criminal justice system, which mandates that the legal process should not prejudge the guilt of the accused. We will also have to touch upon the concept of separation of powers and the doctrine of public trust in respect of government officials holding their offices," it added.
On the separation of powers, the bench said adjudicatory functions are entrusted to the judiciary and the "Executive cannot replace the Judiciary". "If the executive in an arbitrary manner demolishes the houses of citizens only on the ground that they are accused of a crime, then it acts contrary to the principles of ‘rule of law'. If the executive acts as a judge and inflicts penalty of demolition on a citizen on the ground that he is an accused, it violates the principle of ‘separation of powers'."
The court said accountability must be fixed on public officials who take law into their hands and act in a high-handed manner. "State and its officials can't take arbitrary and excessive measures. If any officer of the State has abused his power or acted in total arbitrary or malafide manner, he cannot be spared," it added.
Justice Gavai pointed that when a particular structure is chosen for demolition suddenly and similar other properties are not touched, then the presumption could be that the real motive was not razing the illegal structure, but "penalising without trial".
"For an average citizen, construction of a house is the culmination of years of hard work, dreams and aspirations. House embodies collective hope of security and future. If this is taken away, authorities must satisfy it is the only way," the bench said.
The court also questioned if authorities can demolish a house and deprive its residents of shelter if only one person residing there is an accused. "Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but an anarchy and would amount to a violation of the right to life guaranteed under the Constitution."
The bench underlined that an individual, whether an accused or an undertrial or a a convict, have rights as any other citizen. "They have a right to dignity and cannot be subjected to any cruel or inhuman treatment. The punishment awarded to such persons has to be in accordance with law. Such punishment cannot be inhuman or cruel."
An accused, the court said, cannot be declared guilty "unless proven so beyond reasonable doubt before a court of law". "They cannot be declared guilty, unless there is a fair trial," the bench said.
"The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where 'might was right'," the court said, adding that such "high-handed and arbitrary actions" have no place in our Constitution.
Using its powers under Article 142 of the Constitution, the Supreme Court laid down guidelines for demolitions. It said no demolition should be carried out without a showcause notice. The person this notice is served to can respond within 15 days or the time provided in local civic laws, whichever is later.
This notice must have information of the nature of unauthorised construction, details on the specific violation and the grounds for demolition, the court said. The authority concerned must hear the accused and then pass a final order, it added. The house owner will be given a 15-day period to remove the illegal structure and authorities will proceed with a demolition only if an appellate authority doesn't pause the order.
Violation of the court's directions would lead to contempt proceedings, the bench warned. Officers should be told that if a demolition exercise is found to be in violation of norms, they will be held responsible for restitution of the demolished property, the court said. The cost for this, the court said, would be recovered from the officials' salary.
The court said all local municipal authorities must set up a digital portal within three months that has details of showcause notices served and final orders on illegal structures.
The bench clarified that its directions won't be applicable for unauthorised structures in public places such as road, street, footpath, railway lines or water bodies and in cases where there is an order for demolition by a court of law.