New Delhi:

In a landmark judgment yesterday, the Supreme Court demolished the idea of ‘bulldozer justice’ that several state governments had unleashed against accused in heinous criminal cases. The bench of Justice BR Gavai and Justice KV Viswanathan took a tough stand against such actions, holding that the Executive cannot cannot replace the Judiciary and the legal process should not prejudge the guilt of an accused. But laws, precedents and doctrines aside, it was idea of ‘home’ that was at the heart of this judgment.

The 95-page order started with four lines of a Hindi poem by Kavi Pradeep, who penned the timeless “Aye Mere Watan Ke Logon” as a tribute to soldiers killed in the 1962 Sino-Indian War. The four lines in the court’s order were: “Apna ghar ho, apna aangan ho, is khwab mein har koi jita hai, insaan ke dil ki yeh chahat hai, ki ek ghar ka sapna kabhi na chute”. The lines roughly translate to: “It is everyone’s dream to have a home, a courtyard. No one wants to lose the dream for a home.”

The court noted in its order that for an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. “A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. Having a house or a roof over one’s head gives satisfaction to any person. It gives a sense of dignity and a sense of belonging. If this is to be taken away, then the authority must be satisfied that this is the only option available,” it said.

The Work Behind The Judgment

The Supreme Court’s judgments and observations run as short breaking news flashes and social media posts. But these do not wholly encapsulate the hard work that goes into penning these orders. It took Justice Gavai and Justice Viswanathan 44 days to prepare this 95-page judgment, according to sources. The sources said the two judges held several meetings and decided that this judgment would have a bearing on the lives of crores of people, most of them from underprivileged sections that are powerless before the might of the State and excesses such as ‘bulldozer justice’. So the judgment, the judges agreed, must be written in a way that reaches and connects with the common citizen, the sources said.

Justice Gavai, who is the next in line for the Chief Justice post, sat hours looking for a poem that resonates with the idea of ‘shelter’ that the judges wanted to capture in the order, the sources said. Eventually, he found the lines by Pradeep that opened the key judgment. The lines set the tone for the judgment that stressed on the right to shelter and summed up that this was not a case about structures and their legality, but the people living in them.

The Precedents – And Lord Denning’s Lines

If the idea of ‘home’ was at the heart of this judgment, its brain was backed by legal precedents and landmark verdicts. The judges included an observation by British judge Lord Denning, who Margaret Thatcher had described as “probably the greatest English judge of modern times”. In one of his judgments, Lord Denning had said, “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.’ So be it – unless he has justification by law.”

The lines reflected the bench’s view on the State’s right to deprive a family of its shelter as a penalty against someone accused of a crime.

The court later noted in its judgment, “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’,” it said, adding that such “high-handed and arbitrary actions” have no place in our Constitution.

Key judgments the court referred to included the Raj Narain vs Indira Gandhi case, the Bilkis Bano case and the Aadhaar verdict. The judges, sources said, researched for over a month as they prepared the order that dealt with the separation of powers, the rule of law, the rights of accused, right to shelter and accountability of officers.

The judges agreed that the order must be penned in a manner so that the court’s direction do not just remain on paper, but are applied on the ground. According to sources, Justice Gavai and Justice Viswanathan were of the view that this verdict would impact lives of those at the bottom of the social pyramid and they must have adequate safeguards against arbitrary actions by the State. This formed the basis of the judgment laying down that officers found to violate the top court’s guidelines on demolition would face contempt proceedings. They would have to pay damages and restore the property at their cost.

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. “The rule of law is the foundation of a democratic government… the issue relates to fairness in the criminal justice system, which mandates that legal process should not prejudge guilt of accused,” the bench said.

“We have considered the rights guaranteed under the Constitution that provide protection to individuals from arbitrary State action. The rule of law provides a framework to make sure individuals know property will not be taken away arbitrarily,” it added.

On the separation of powers, the bench said adjudicatory functions are entrusted to the judiciary and the “Executive cannot replace the Judiciary”. “We have referred to the doctrine of public trust and public accountability. We have concluded that if Executive demolishes the house of person arbitrarily merely because he is accused, it violates principle of separation of powers,” Justice Gavai said.

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.

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.