The Hindu Editorial Analysis- 18th November 2024 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Two Cheers for the Top Court’s ‘Bulldozer’ Judgment 

Why in News?

Last week, the Supreme Court of India handed down a judgment dealing with what has come to be known as “bulldozer raj”. For the last three years, in many parts of India, municipal authorities had taken to demolishing people’s homes if they were accused of an offence, especially in the wake of communal tensions or large-scale protests. These demolitions were often, although not always, communally targeted, and in their wake, politicians were seen to publicly celebrate and endorse this form of state-sponsored “vigilante justice”.

What are the Supreme Court Guidelines on Bulldozer Justice? 

• Notice Requirement: A minimum of 15 days' notice must be given to the property owner or occupant before any demolition work can start.
• Details in Notice: The notice should clearly state what structure will be demolished and the reasons for this action.
• Fair Hearing: A date must be set for a personal hearing, allowing the affected party to contest the demolition or explain their situation.
• Transparency: Authorities are required to inform the local Collector or District Magistrate via email once the notice is served, ensuring an auto-reply is received to prevent claims of backdating or manipulation.
• Final Order Issuance: The final order must include the arguments presented by the owner or occupant, the authority's reasons for deciding on demolition, and indicate whether the entire structure or just part of it will be demolished.
• Post-Final Order Period: If a demolition order is given, the Supreme Court has mandated a 15-day waiting period before any action is taken. This allows the owner or occupant time to remove the structure or to challenge the order in court.
• Demolition Documentation: The authority is required to record a video of the demolition and prepare an "inspection report" in advance, along with a "demolition report" that lists the personnel involved.
• Test for Dual Violations: The Supreme Court established a separate test for cases where a demolished property is occupied by an accused person but also violates local laws as an illegal construction.
• Selective Demolition: If only one structure is demolished while similar structures remain, this may indicate that the intent is to penalize the accused rather than to eliminate illegal construction.
• Exceptions: The Supreme Court clarified that its rules do not apply if there is any unauthorized structure in public places, such as roads, streets, footpaths, near railway lines, or bodies of water, as well as in cases where a court has ordered demolition.

Article 142 

• Article 142 of the Constitution gives the Supreme Court the authority to issue orders and decrees that are needed to achieve complete justice in any legal matter.
• Article 142(1) permits the Court to make binding orders that apply throughout India, which can be enforced according to the law or by the President.
• Article 142(2) provides the Court with the power to ensure that people attend court, to obtain necessary documents, and to punish those who show contempt of court.
• Over the years, this article has been used to ensure complete justice and to fill in gaps where the laws might be lacking.

What is the Significance of the Supreme Court Guidelines? 

• Separation of Powers: The ruling highlights that the judiciary has the authority to determine guilt and assess whether any government bodies have exceeded their powers.
• Judiciary's Role: The executive branch cannot take over the judiciary's essential functions.
• Rule of Law: The Court declared that the executive cannot order demolitions as punishment without a fair trial. This maintains the rule of law by ensuring state actions stay within constitutional limits.
• Discrimination Concerns: Demolitions that unfairly target specific groups, such as slum residents, can be contested as discriminatory under Article 14.
• Accountability of Officials: The guidelines require that demolition activities be open to public review and backed by detailed records, like video footage and inspection reports, to prevent misuse of authority and promote accountability.
• Right to Shelter: A demolition affecting a whole property, including innocent parties, would be unconstitutional as it violates the fundamental right to shelter.
• Life with Dignity: Article 21 of the Indian Constitution includes the right to live with dignity, which encompasses the right to shelter.
• Property Rights: Article 300A states that no one can be deprived of their property except through legal means. This highlights that property can only be taken via due process and valid laws.
• Protection of Individual Rights: The Court's emphasis on due process and the separation of powers safeguards individuals from arbitrary actions by the state and ensures that their rights are not violated under the pretense of law enforcement.
• Geneva Convention 1949: Article 87(3) prohibits collective punishments.
• International Compliance: Such demolitions also breach Article 51 of the Indian Constitution, which requires India to honor international treaties and laws.

Why is Bulldozer Justice  a Concern? 

• Increasing Demolitions: A report from the Housing and Land Rights Network (HLRN) estimated that in 2022 and 2023, authorities destroyed 153,820 homes, forcing over 738,438 people to leave their homes in both rural and urban areas.
• International Covenant on Civil and Political Rights (ICCPR): According to Article 17 of the ICCPR, everyone has the right to own property either alone or with others, and no one should lose their property without proper reason.
• Collective Punishment: The Supreme Court recognized that demolition actions often not only target those accused of wrongdoing but also punish their families by destroying their homes.
• Instant Justice: Demolitions have been defended as measures against illegal building or land invasion. These state-approved actions are seen by some as a type of "instant justice."

Judicial Decisions Related to Property Demolitions

• Maneka Gandhi Case, 1978: The Supreme Court broadened the definition of "procedure established by law" to ensure that it is just, fair, and reasonable, introducing the idea of "due process of law."
• Olga Tellis Case, 1985: The Supreme Court confirmed that Article 21, which guarantees the right to life, also includes the right to a means of living and a place to stay. This means demolishing homes without following proper legal steps goes against constitutional rights.
• KT Plantation (P) Ltd Case, 2011: The Supreme Court decided that laws allowing the taking of property under Article 300-A must be just, fair, and reasonable.

What are Challenges in Implementation of SC Guidelines? 

• Political Pressures: There may still be strong motivations to use destruction as a way to punish or scare people, especially in areas where politics are highly charged.
• Culture of Impunity: Although the rules aim to hold officials accountable, past experiences show that efforts to tackle issues like hate speech or mob violence have not always resulted in real accountability.
• Lack of Oversight: Local leaders or officials might find ways to avoid following these rules, particularly in places where there is little judicial oversight.
• Long-Term Cultural Change: Simply having guidelines may not be enough to alter the wider cultural and institutional habits that allow such actions to happen in the first place.

Way Forward 

• Upholding the Rule of Law: All actions by the state must strictly follow the law. The legal system should clearly separate criminal justice from collective punishment and ensure that everyone is considered innocent until proven guilty.
• Enhancing Judicial Oversight: It is important to create special tribunals that focus on disputes related to property demolitions. These tribunals should have the authority to review decisions made by the government.
• Alternative Dispute Resolution: We should actively promote methods like mediation and arbitration as effective ways to settle disputes regarding property rights and demolitions.
• Rehabilitation Plans: Developing comprehensive rehabilitation plans for individuals affected by demolitions is crucial. These plans should include options for alternative housing, support for livelihoods, and access to mental health services.