One can rebuild a house but not a ‘home’, because home represents not just a physical structure, but memories, security, and dignity.
On 17 September, the Supreme Court of India came down heavily on the authorities carrying out arbitrary or illegal demolitions across the country. By way of an interim order which will be in operation till 1 October, the SC has halted all demolitions and said, “Nothing will be done without the permission of the Court.”
A bench of Justices BR Gavai and KV Viswanathan passed this direction in a batch of petitions accusing various state governments of demolishing the buildings of persons accused of crimes as a punitive measure. The court held:
"Till the next date of hearing, we direct that there shall be no demolition anywhere across the country without seeking leave of this Court. We further clarify that our order would not be applicable if there is an unauthorised structure in any public place such as [a] road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law."
During the course of the hearing, Solicitor General of India Tushar Mehta raised apprehensions and said that the hands of statutory authorities (municipal corporations etc) cannot be tied in this manner. The bench orally responded that the "heavens won’t fall" if the demolitions are stopped for two weeks.
The SC has put its foot down on what is termed in the media as ‘Bulldozer justice’. I’d rather call it ‘Bulldozer injustice’, as I have argued in a recent piece for Outlook India on the right to shelter issue.
The absence of clear guidelines has allowed these demolitions to function as a tool for punishment, often imposed before any trial or conviction—a reversal of the foundational principles of criminal justice. Punishing individuals by depriving them of their homes without a fair hearing erodes faith in the legal system and turns the state's actions into a means of coercion, not justice.
Right to Shelter
On 2 September, the court had expressed that it may frame guidelines to prevent arbitrary demolitions. During the hearing, an oral remark passed by Justice Gavai, who raised apprehension against such demolitions and asked, "How can a house be demolished just because he is accused? It can't be demolished even if he's convict.”
The Supreme Court's intervention reflects a broader concern about the growing use of demolitions as punitive measures without adequate legal process. It has exercised its special powers under Article 142 to issue temporary protection, indicating its intent to provide long-term guidelines to address this issue.
Though the ban on demolitions across the country is interim, this development is important if we look at it through a constitutional lens, ie, with respect to shelter jurisprudence. The rule of wheels has been overriding the rule of law in many states like Uttar Pradesh, Madhya Pradesh, and Rajasthan among others.
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The Supreme Court in many cases has held that the right to shelter does not mean a mere right to a roof over one's head but the right to all the infrastructure necessary to enable them to live and develop as a human being. A report suggests that within two years, around 1,50,000 homes were razed and 7,38,000 were left homeless across the country. These demolitions frequently violate the settled principles of natural justice, primarily the right to be heard.
The Supreme Court on numerous occasions had halted demolition drives, but no stringent guideline or judgment, which asserted that the whole process of a punishment without trial is unlawful, was issued.
Now, while framing the guidelines, the Supreme Court has to consider many aspects, one of them being the right to be heard. In a nutshell, it shall be the duty of the corporation or the authority concerned to issue a show cause notice to the affected parties or owners of any property, and the same should be communicated to them in a language that they understand and read. It shall also be the duty of the authority concerned to disclose or inform the provision of law which gives them the right to demolish the said property.
Pan-India Guidelines
Following the hearing, the Supreme Court has also invited suggestions from the parties/petitioners for framing the pan-Indian guidelines.
One of the suggestions given by the Jamiat Ulama-i-Hind (one of the petitioners) was that of the appointment of a judicial officer as a Claim Commissioner, whose office shall have the power to grant compensation or restitution to the aggrieved persons, whose property has been demolished illegally or arbitrarily by the appropriate authority. It was also recommended that any officer who fails to comply with the court's guidelines and causes damage or liability to an aggrieved party shall be personally liable.
In their suggestions, the Jamiat has also claimed that a number of demolitions carried out coincided with announcements by political personalities and holders of public office that treated the incidents of demolition as a valid penalty for the alleged offences.
The Jamiat, therefore, also suggested that public figures, including government officers, must be prohibited from making statements endorsing illegal demolitions. Such statements should be grounds for criminal prosecution and tortious liability.
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The following things may be kept in mind before framing such guidelines:
That a proper notice be given to the aggrieved or victim whose property is being demolished
That a proper and just time frame be given
That legal representation should be provided to those who are not able to afford a lawyer
That a separate forum or special court be constituted to deal with the claims of the person concerned
That a compensation scheme be brought in to deal with cases where the demolition was carried out as part of a punishment
That proper documentation and provisions be provided on the website concerned
'The law recognises rights of even an encroacher...'
The intervention by the Supreme Court is important and we can just hope that the guidelines are followed in spirit and not left hanging like the Tehseen Poonawala guidelines (on mob lynchings).
The right to shelter still remains a fundamental right only on paper because the ground reality reveals a systematic vandalisation of the shelter jurisprudence. The arbitrary demolitions, carried out without due process, transform what should be a protected right into a fleeting privilege, subject to the whims of the authorities.
While concluding, it would be relevant to refer to para 54 of the judgment in Suresh Tirkey v The Governor, where the Karnataka High Court beautifully summed up the shelter jurisprudence:
The right to shelter is a fundamental right of every citizen under the Constitution and any infraction of this right by State action must invite judicial intervention to protect the occupants of a dwelling house. Across the world, the law recognises [the] rights of even an encroacher to be protected from State action which is not in consonance with the procedure established by law. Except in a very few exceptional kinds of cases such as encroachments on public roads and pavements, the issue of illegal constructions and encroachments is not a simple one and invariably the Courts are confronted with contentious issues which cause delays in rendering decisions. But then, this is the procedure in law we have chosen for ourselves. In a country like India which professes high democratic values, the Constitution of India stands like a lighthouse illuminating life aspirations of the people of India that every State action must follow the procedure established by law.
It is this essence that is lost in these ruthless demolitions. The Supreme Court must recognise the irreversible damage done by these actions and ensure that no one is stripped of their home without proper judicial oversight, lest we allow punishment before trial to become the norm in our criminal jurisprudence.
(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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