The Supreme Court’s interim order on Tuesday staying demolitions across the country without its permission till October 1 does not apply to unauthorised constructions on public roads, footpaths, railway lines or public places. While the order might stay a large number of demolitions, this exception has led to apprehensions that the order may not prevent punitive demolitions being carried out on the pretext of clearing encroachments on public property.
The Supreme Court bench of Justices BR Gavai and SR Viswanathan said that the “order would not be applicable if there is an unauthorised structure in any public place such as 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”.
The authorities in four Bharatiya Janata Party-ruled states and one Aam Aadmi Party-governed state have punitively bulldozed 128 structures, mostly belonging to Muslims, between April and June 2022, human rights group Amnesty Internation said in a report in February. There are no provisions in Indian law that allow for property to be demolished as a punitive action.
Tuesday’s Supreme Court order has been largely welcomed by opposition parties and civil society. Lawyers involved in the case said that the order will put a temporary stop to most punitive demolitions.
However, since it does not cover actions on public property, this leaves a loophole for arbitrary action by the authorities.
What lawyers said
The court’s order was in response to a batch of petitions challenging so-called bulldozer justice by state governments, demolishing properties belonging to persons accused of crimes. This strategy has been gaining precedence since 2022.
Such actions have been endorsed by several leaders of the ruling BJP and Hindutva supporters.
In several cases, the demolitions were conducted on the pretext that the demolished building was an encroachment on government land.
This year alone, for instance, claims that stuctures were built on government land were used to demolish 19 properties belonging to Muslims in an area that witnessed communal clashes in Maharashtra, a mosque in Delhi, a madrasa in Uttarakhand, the makeshift homes of thousands of Bengali-origin Muslims in Assam, 11 houses belonging to alleged beef smugglers in Madhya Pradesh and the rented home of a Muslim teenager accused of stabbing his Hindu classmate in Rajasthan.
None of these demolitions would have been protected by the Supreme Court order.
However, lawyers involved in the matter told Scroll that targeted demolitions are carried out on other pretexts too.
“Targeted demolitions are usually carried out not against buildings on roads and footpaths, but in unauthorised colonies,” said public interest lawyer and activist Prashant Bhushan. “The order should prevent most targeted demolitions.”
Senior advocate MR Shamshad agreed. “If a house is present in a private neighborhood, it can no longer be demolished for the next two weeks on the grounds that it was built without the required sanction from municipal authorities or that it deviates from its building plans as per this order,” he said.
There is no data available on the number of punitive demolition orders conducted on grounds of encroachment of public land and those implemented due to the violation of municipal rules or building sanctions.
However, the order’s importance goes beyond merely its text, explained advocate Nizam Pasha. “The value of the order lies not just in its strict legal interpretation but also in the perception that it creates and the message it sends out,” he said. “When such an order comes from the Supreme Court, municipal authorities will be more circumspect about carrying out punitive demolitions.”
Senior advocate SG Hasnain said that the order was clear and the exception cannot be described as wide. “If the state is clearing unlawful constructions on public lands, we cannot ask the court to stop that,” he said.
However, Bhushan and Pasha agreed that the order does not forestall all targeted and punitive demolitions.
“It would have been better for the court to lay out more detailed guidelines in which, perhaps, exceptions could have been made only for those demolitions in which three weeks’ public notice has been given,” said Bhushan.
Among the demands made by petitions in the case are clear guidelines on when demolition can be carried out, prohibiting all targeted and punitive demolitions, penalties against public officers who conduct such demolitions and paying compensation to those whose homes and property is demolished.
Ultimate illegality
At the same time, legal experts have criticised the efforts of the Supreme Court to issue guidelines on demolitions and intervening in the matter so late.
Besides, they say that the court should not be issuing guidelines on conducting actions that have no legal basis in the first place.
Lawyer and constitutional scholar Gautam Bhatia has also written that guidelines issued by the Supreme Court are usually ineffective and “allows the court to meet the charge of inaction, while also enabling it to avoid confronting the core issue of State impunity”.
The Supreme Court is expected to issue guidelines on demolitions in the present petitions on October 1.
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