Two cheers for the top court’s ‘bulldozer’ judgment
By Gautam Bhatia
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”. In its judgment, the Court came down heavily on this practice, noting that it violated the basic principles of the rule of law, the separation of powers, and turned the executive into judge, jury, and executioner. The Court declared that no person’s home could be demolished merely because they stood accused or even convicted of an offence, and issued a set of guidelines to prevent this kind of state action.
A trail of significant issues
While the Court’s judgment is no doubt welcome, there are a number of issues that it raises. The first is delay. This pattern of vigilante demolition of homes — what scholars refer to as “domicide” — has been taking place for at least three years now. It had begun in the wake of the Citizenship Amendment Act-National Register of Citizens protests, and has multiplied across the country since then. Many of these demolitions were challenged in courts including the Supreme Court, but it is only now that the Court chose to act. This raises serious questions about the Court’s delay in addressing such a foundational threat to the rule of law. But also, it raises questions about redress and compensation for past acts, now ruled to be illegal. In its judgment, while the Court held that state officials responsible for illegal demolitions would be held personally liable for compensation and redress, it failed to clarify how its judgment would apply to all the demolitions that had taken place so far, and how it would aid the victims of such demolitions, who have been rendered homeless. This is a significant omission.
Second, it is important to understand the two-faced nature of the state on the issue of demolitions. While politicians and Ministers would celebrate these demolitions as having delivered instant justice, with a view to dog-whistling to their constituencies, the municipal authorities who were actually responsible for the demolitions and had to defend them in Court, would invoke the much more prosaic justification of “illegal” or “irregular” constructions. The state never argued in Court that it was engaged in vigilante, or retributive, demolitions.
Thus, when the Court framed the main question in the case as being “whether it is permissible for the State to demolish the home of someone merely because they have been accused of an offence”, it was setting up a straw man as nobody had ever claimed that such a thing was permissible. The actual claim was that the invocation of municipal building laws and “irregular construction” was a facade to legally justify what were, in effect, targeted and punitive demolitions.
In fact, a close reading of the judgment demonstrates that the Court, too, was aware of this. At one point in the judgment, it noted that if, for example, one home in a locality was singled out for demolition while surrounding homes were left untouched, that would be an indication of mala fide state action. At another point, it discussed how the demolition of an individual’s home affected their (innocent) family as well, and that “collective punishment” was impermissible under Indian law. As both these events actually happened in the recent past, it is unclear why the Court used the language of hypotheticals rather than addressing the material reality before it. The judgment, thus, reads like an indirect approach to the actual problem at hand, and reflects a hesitation on the part of the Court to identify the problem in clear terms.
The core of the judgment
This, then, brings us to the most important part of the judgment — the Guidelines — which represent the Court’s actual attempt to address the problem. A perusal of the Guidelines reveals that the Court’s objective was to prevent the state from using demolitions as a political weapon by introducing two crucial requirements into the procedure: of transparency, and of due process. The Court held that before any demolition, the state would have to serve notice upon the person whose home it proposed to demolish, and provide them with at least 15 days to reply. There would have to be a personal hearing, and even after the order of demolition became final, the affected person had a right of appeal, which again required the state to stay its hand for at least 15 days. As the entire purpose of “bulldozer raj” was to serve a form of instant “mob” justice at the instance of the state (regardless of guilt or innocence), it is to be hoped that these due process guidelines will throw enough sand into the gears of the bulldozer to preclude such actions in the future.
The Court also went an extra mile and mandated transparency requirements in order to prevent “backdating” of notices (a long-standing problem). Most importantly, it introduced a “proportionality” requirement into the process: municipal officials were required to explain, in writing, why the extreme step of demolition was the only option available, and why, for example, regularisation (through payment of compounding fees), or demolishing only a part of the structure, was not possible. This requirement, once again, would make municipal officials think twice before engaging in instant demolitions. The Court gave this teeth as well, by holding that in cases of illegal demolitions, erring officers would be personally liable.
These Guidelines, thus, represent a sincere and committed effort by the Court to check the menace of “bulldozer raj”. It now remains to be seen how effective they will be going forward, and much of this will depend on how other Benches will implement these Guidelines, when fresh cases come to the Court. In previous cases involving lynching and hate speech, for example, we have seen detailed guidelines. But these have been ineffective because the Court has refrained from following up on and enforcing its own judgment when violations take place. It is to be hoped that this order will not meet the same fate.
A section that is still vulnerable
The other thing to note is that the Court made an exception in its judgment for structures on certain kind of public land (such as abutting a railway track, or a road). A look at this exception makes it clear that it would exclude from its protective ambit, slums and informal settlements where the most vulnerable and marginalised sections of society live. If anything, it is such individuals living in permanent precarity who are most in need of the Court’s protection. There is also no reason why requirements of notice and proportionality should not apply to such individuals as well. No doubt, the Court’s mind was on punitive and targeted demolitions, as that was the case before it. However, the partial application of its judgment shows that there is a long way to go, and struggles still to engage in, when it comes to securing a meaningful right to shelter and protection from evictions for all the citizens of this country.
Gautam Bhatia is a Delhi-based lawyer