Supreme Court takes strong exception over selective demolition drives

New Delhi [India], November 13 : India's Supreme Court on Thursday expressed strong concerns over selective demolition drives, stating that targeting specific structures while ignoring similarly situated ones may indicate malice.
"In such cases, where the authorities indulge in an arbitrary pick and choose of the structures and it is established that soon before initiation of such an action an occupant of the structure was found to be involved in a criminal case, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalizing the accused without even trying him before the court of law," the top court said.
The observation was made in a judgment delivered by a bench of justices BR Gavai and KV Vishwanathan whereby it laid down guidelines for the demolition of properties.
However, the top court took note of the Solicitor General's submission that he may be right in submitting that in some cases it may be by sheer coincidence that the properties that were in breach of local municipal laws governing them also happen to belong to the accused persons.
The court emphasized that demolishing homes as punishment for alleged crimes violates constitutional rights and underlined the settled principle of criminal jurisprudence that a person is presumed to be innocent till he is held guilty.
"In our view, if demolition of a house is permitted wherein a number of persons of a family or a few families reside only on the ground that one person residing in such a house is either an accused or convicted in the crime, it will amount to inflicting collective punishment on the entire family or the families residing in such structure. In our considered view, our constitutional scheme and the criminal jurisprudence would never permit the same," the top court said.
The top court said that the action by the executive would be wholly arbitrary and would amount to an abuse of the process of law and the executive in such a case would be guilty of taking the law in his hand and giving a go-bye to the principle of the rule of law.
"It is to be noted that even in the cases consisting of imposition of a death sentence, it is always a discretion available to the courts as to whether to award such an extreme punishment or not. There is even an institutional safeguard in the cases of such punishment to the effect that the decision of the trial court inflicting the death penalty cannot be executed unless it is confirmed by the High Court. Even in the cases of convicts for the commission of the most extreme and heinous offences, the punishment cannot be imposed without following the mandatory requirements under the statute. In that light, can it be said that a person who is only accused of committing some crime or even convicted can be inflicted with the punishment of demolition of his property/properties? The answer is an emphatic 'No'," the top court said
The top court also underlined the right to shelter and said that it is not only the accused who lives in such property or owns such property.
"If his spouse, children, and parents live in the same house or co-own the same property, can they be penalized by demolishing the property without them even being involved in any crime only on the basis of them being related to an alleged accused person? What is their mistake if their relative is arrayed as an accused in some complaint or F.I.R.? As is well known, a pious father may have a recalcitrant son and vice versa. Punishing such persons who have no connection with the crime by demolishing the house where they live in or properties owned by them is nothing but anarchy and would amount to a violation of the right to life guaranteed under the Constitution," the top court said.
The top court said that the right to shelter is one of the facets of Article 21.
"Depriving such innocent people of their right to life by removing shelter from their heads, in our considered view, would be wholly unconstitutional. While considering the issue with regard to the demolition of the houses that are required to be demolished for breach of the local laws, we find that the principle of the rule of law needs to be considered even in the municipal laws. There may be certain unauthorized constructions that could be compoundable. There may be certain constructions wherein only part of the construction is required to be removed. In such cases, the extreme step of demolition of the property/house property would, in our view, be disproportionate," the top court said.