Context

The Supreme Court of India has sought suggestions from relevant parties to develop nationwide guidelines on extra-legal demolitions. This move follows numerous cases where the homes and buildings of individuals accused of various crimes have been demolished without adhering to due process. Such demolitions have become increasingly frequent in recent years, often affecting vulnerable groups and leaving them without any legal recourse.

Overview

This arbitrary state action undermines the right to housing, as local authorities conduct evictions at inconvenient times without offering alternative housing or rehabilitation. This creates inequality and social conflict, exacerbating the marginalization of certain communities and violating constitutional principles and due process.

The legality of punitive demolitions

• Has become common practice: It is increasingly questioned as large-scale demolition drives used as collective punishment for rioters become more common. Initially seen in Delhi’s Jahangirpuri, this trend has spread across the country. In 2023, violence in Nuh, Haryana, resulting from a clash between religious groups, led to the local administration demolishing several homes in the area.
• State –driven oppression: In Madhya Pradesh’s Khargone, communal riots led to the demolition of homes and businesses owned by Muslims labeled as ‘alleged rioters.’ This rapid, instinctive response has become a troubling pattern of state-driven oppression. These demolitions are often justified under municipal laws as actions against encroachment or unauthorized construction, while bypassing due process established by various Supreme Court and High Court judgments.
• The 'tough on crime' or 'eye for an eye' approach: has become a political strategy for several state governments. Using demolitions as a response to damage to public infrastructure undermines established criminal law processes and violates fundamental rights. As the Supreme Court develops guidelines for extra-legal demolitions, it should impose a complete moratorium on punitive demolitions. For legitimate demolitions, the guidelines should mandate a strict tripartite procedure to ensure that affected individuals have appropriate recourse.

Due process in lawful demolitions.

• Humanitarian directives towards this issue: The displacement of individuals for various reasons has long been a significant concern. While the United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement (2019) offer humanitarian directives to address this issue, higher judiciary court cases have tackled demolition issues in a fragmented way over the years. Although these efforts have been beneficial, they have resulted in a narrow perspective and temporary fixes. The Supreme Court's current task of creating nationwide guidelines must address the issue from a comprehensive, multidimensional perspective.
• Must follow established legal procedures: Demolitions should only occur in exceptional cases and must follow established legal procedures. The law must specify which buildings can be demolished and the circumstances to be assessed. This assessment should balance state actions with the right to housing and resettlement, acknowledging systemic violations. Analyzing recent demolition data is also essential to identify patterns and improve the process.
• Detailed analysis needed: After addressing broader subject-matter issues, a detailed analysis should be conducted to integrate procedural steps into relevant legislation and rules. These procedural guidelines should be organized in phases, with multiple checkpoints at each stage that must be completed before any adverse or irreversible actions are taken.
  • In the pre-demolition phase: the burden of proving the necessity for demolition should be on the authorities, who must show how it benefits the public and protects human rights. A comprehensive demolition notice, including land records and resettlement plans, should be widely shared, allowing ample time for affected individuals to review and respond. An independent committee with judicial and civil society members should assess proposed demolitions and provide guidance. Affected individuals should be involved in discussions about alternative housing and compensation, with particular attention to vulnerable groups. At least one month should be given between the notice and demolition to allow individuals to retrieve their belongings.
  • In the second phase: during the demolition, the use of physical force should be minimized, and heavy machinery like bulldozers should be avoided. Government officials not involved in the demolition should be present to oversee the process. The timing of the demolition should be pre-scheduled, and any surprise demolitions should result in punitive action against the responsible authority.
  • In the third phase, rehabilitation of affected individuals should be provided with adequate temporary or permanent housing to prevent homelessness. A prompt grievance redress mechanism must be established under all demolition-related laws to allow individuals to challenge decisions made at any stage. The law should include provisions for remedies such as compensation, restitution, and the possibility of returning to their original homes.

Affixing personal liability

Across India, demolitions often show varied patterns, but a common issue is the lack of due process and blatant disregard for past judicial directives. Municipal laws typically grant officials immunity under 'good faith' clauses, preventing legal action against those who conduct demolitions recklessly. While establishing nationwide guidelines is a positive step, it is crucial to sensitize law enforcement to adhere to existing directives. Additionally, mechanisms should be explored to hold individuals personally accountable for ordering forced evictions and demolitions, ensuring proper checks and balances on official powers.

Conclusion

The Supreme Court of India is working on nationwide guidelines to address the issue of extra-legal demolitions, which have increasingly affected vulnerable groups and undermined due process. Current practices often violate constitutional principles and result in significant social harm. To ensure fairness and legality, demolitions should be limited to exceptional cases, follow established procedures, and include thorough assessments and checks at each phase. The pre-demolition phase must require authorities to justify their actions and provide comprehensive notices and support to affected individuals. During demolitions, physical force and heavy machinery should be minimized, and the process should be transparent and pre-scheduled. Post-demolition, adequate rehabilitation and grievance mechanisms must be in place. Additionally, addressing personal liability for officials involved is crucial to enforce accountability and prevent abuse.

Source: THE HINDU