"The executive cannot replace the judiciary in performing its core functions"

On November 13, 2024, the Supreme Court of India delivered a significant judgement reinforcing constitutional protections against arbitrary state actions involving property demolitions. This ruling arose from a series of petitions challenging the demolition of properties by state authorities, which were allegedly carried out as punitive measures against individuals accused of crimes.

The ruling of the Supreme Court's Division Bench, comprising Justice BR Gavai and Justice K V Vishwanathan, hinged on fundamental constitutional principles. Foremost among these is the rule of law, a principle enshrined in democratic governance and derived from A.V. Dicey’s postulates: (1) no person may be punished except by established legal procedure; (2) everyone, irrespective of rank, is subject to the law; and (3) judicial decisions form the basis for individual rights. The Court stated that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land,” contrasting this with “the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.” Reinforcing the rule of law, the judgement criticised the arbitrary demolition practices as exceeding executive authority, noting that the executive does not have the mandate to determine the guilt or innocence of an accused through such punitive measures.

The Court’s decision elaborates on the broader implications of these principles, noting that actions by state authorities must prevent the abuse of power and uphold “predictability and stability” to assure citizens that “their lives, their liberty, their property will not be taken away from them arbitrarily and abusively” This view aligns with Lord Bingham’s assertion, quoted in the judgement, that “ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred.” By reiterating these ideals, the Supreme Court emphasised that all government actions, especially those that impact fundamental rights, must be conducted within the limits of constitutionally mandated authority.

The Court highlighted the separation of powers doctrine as a constitutional safeguard against executive overreach, affirming that adjudicatory functions belong solely to the judiciary. Citing the case of Indira Nehru Gandhi v. Raj Narain & Anr.(1976) 2 SCR 347 the Court observed that legislative, executive, and judicial powers must not be conflated within a single branch, as doing so could destroy “the fundamental premises of a democratic government.” This doctrine is critical, the Court argued, to prevent the concentration of power and to protect individual liberties.

The Court observed that the executive cannot replace the judiciary in determining the legality or illegality of property or in adjudicating criminal guilt. This separation ensures impartiality and due process, principles that are essential to the fair administration of justice. The Court held that executive actions targeting alleged criminals through property demolition without a court order constitute a violation of the separation of powers, as it bypasses the judicial process. The court observed: “the executive cannot replace the judiciary in performing its core functions,” which is essential for upholding democracy.

Central to the Court’s decision was the constitutional guarantee under Article 21, which protects an individual’s right to life and personal liberty. The right to shelter, the Court asserted, is a fundamental component of this protection, representing not only property rights but also the dignity, security, and aspirations of individuals and their families. The Court noted: “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.”

The Court elaborated that demolishing a home without due process not only strips the accused of this fundamental right but also punishes their families collectively, regardless of their involvement in any alleged crime. The judgement stated: “If this (right) is to be taken away, then the authority must be satisfied that this is the only option available” The Court found that by denying accused persons and their families their right to shelter, the state imposes an unconstitutional form of collective punishment.

The Court also observed the doctrine of public trust and public accountability, highlighting that government officials act as trustees of public power and must use this authority with integrity and fairness. State actions, particularly those that impact constitutional rights, must adhere to principles of good faith and fairness. The court relied upon Delhi Airtech Services Private Limited and anr v. State of Uttar Pradesh and anr. (2011) 9 SCC 354 and observed that “The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office.” Thus, demolitions conducted as punitive actions without judicial review breach public trust and reflect malice or bad faith, thereby making such actions illegal.

A cornerstone of criminal jurisprudence is the presumption of innocence until proven guilty. The Court held that the demolition of property on mere accusations contravenes this principle, as it penalises individuals before a court has determined guilt. The judgement emphasised that property demolitions on this basis constitute an extrajudicial punishment, thus infringing on natural justice.

Guidelines Issued by the Supreme Court

To curb arbitrary demolitions, the Supreme Court laid down binding guidelines for all state authorities involved in demolition actions. These guidelines seek to ensure adherence to due process and prevent punitive demolitions without judicial oversight:

A. Notice

- No demolition can proceed without issuing a prior show-cause notice, with a minimum response period of 15 days or as per local municipal laws, whichever is later.

- The notice must be served via registered post and affixed visibly on the property, and digital confirmation should be sent to the office of the Collector/District Magistrate, with an auto-reply issued.

- The notice should detail the unauthorised construction, specific violations, required documents, and the date for the personal hearing before a designated authority.

- A digital portal must be set up within three months to provide access to notices, replies, and final orders.

B. Personal Hearing

- The designated authority must provide an opportunity for a personal hearing to the affected party.

- Minutes of the personal hearing must be documented and recorded officially.

C. Final Order

- After the hearing, the authority must issue a final order, including:

- The contentions of the noticee and reasons if the authority disagrees.

- Whether the unauthorised construction is compoundable or not, and reasons for the decision.

- Details if only a part of the construction is deemed unauthorised.

- Justification if demolition is considered the only viable option instead of partial or conditional compounding.

D. Appellate and Judicial Scrutiny

- A 15-day non-implementation period must be allowed for the affected party to appeal the final order.

- The final order should be published on the digital portal.

- The property owner/occupier must be given an additional 15-day window to voluntarily remove unauthorized structures before enforcement.

- If no action is taken within the given period and no stay is granted by an appellate authority or court, only then can demolition proceed, limited strictly to non-compoundable constructions.

- A detailed inspection report, signed by two Panchas, must be prepared before demolition.

E. Proceedings of Demolition

- Demolition actions must be fully video-recorded, with a detailed report listing the participating police and civil personnel.

- The video recording should be preserved, and the demolition report forwarded to the Municipal Commissioner via email and uploaded on the digital portal for public access.

These guidelines, detailed above, are to be strictly followed by all municipal authorities to ensure fairness, due process, and adherence to the rule of law during demolition actions.

Case Details- In Re: Directions in the matter of demolition of structures