Two recent judgments of the Supreme Court against the so-called bulldozer justice meted out by BJP governments, present a glimmer of hope in these times in which religious minorities and political opponents have been targeted under an authoritarian ‘Bulldozer Raj’. These judgments could go a long way in putting a stop to the arbitrary demolitions of people’s houses, irrespective of the state’s claim that these were encroachments.

In the first judgement, a 3-judge Bench of the Supreme Court, while dealing with the unlawful demolition of the ancestral house and shop of Manoj Tibrewal, a senior journalist, on the grounds of alleged encroachment on a national highway, held that “.. Justice through bulldozers is unknown to any civilised system of jurisprudence. There is a grave danger that if high handed and unlawful behaviour is permitted by any wing or officer of the state, demolition of citizens’ properties will take place as a selective reprisal for extraneous reasons. Citizens’ voices cannot be throttled by a threat of destroying their properties and homesteads. The ultimate security which a human being possesses is to the homestead. ... Bulldozer justice is simply unacceptable under the rule of law. If it were to be permitted the constitutional recognition of the right to property under Article 300A would be reduced to a dead letter. ... Any action in respect of public or private property must be backed by due process of law.” On 04 October 2019, Manoj Tibrewal’s ancestral residential house and shop in Mohalla Hamid Nagar, Maharajganj district were demolished by the Uttar Pradesh administration.

Pronouncing a verdict on this suo motu Writ Petition registered under Article 32 of the Constitution on the basis of a letter sent by the affected person to the highest Court, the Supreme Court has laid down certain guidelines that the State must adhere to in dealing with such alleged encroachments. These include the necessity to ascertain the encroachment, if any, followed by written notices to remove the encroachment and a speaking order to the said notices. In addition the Court has mandated that, thereafter, reasonable notice would be furnished to the person against whom any adverse action is proposed and it is upon the failure of the said person concerned to act, that the authorities can proceed to remove the encroachment, in accordance with law.

In the second Judgement, pronounced barely a week later, on 13 November 2024, a 2-Judge bench of the Supreme Court laid down comprehensive pan-India guidelines on the issue of demolition of residential and commercial properties by the state machinery without following due process of law, on the ground of the accused being allegedly involved in criminal offences. In answering this question, the Supreme Court elaborated the impermissibility of such actions against the principle of the rule of law, the concept of separation of powers, the doctrine of public trust in respect of government officials holding their offices, the fundamental right to shelter, the Constitutional protection from arbitrary state action, the rights of accused and the rights against collective punishment. In doing so, the Court in no uncertain terms condemned state-abetted lawlessness.

The sanctity of the home

In this notable judgement, the Court clarified that a house is not simply a commodity, rather “an embodiment of the collective hopes of a family or individuals’ stability and security”. As the judgement proceeds, the Court has poignantly reminded the executive the importance of a house to people. For an average citizen, the construction of a house is often the culmination of years of hard work, dreams, and aspirations. A house is not just a property but embodies the collective hopes of a family or individuals for stability, security, and a future. It gives a sense of dignity and a sense of belonging.

Reasserting the rule of law against state lawlessness

The Supreme Court held that it is wholly impermissible in our constitutional set-up for officers of the State Government to take upon themselves the adjudicatory functions that are entrusted to the judiciary, to inflict the punishment of demolition of the properties of a person undergoing a trial. The executive cannot become a judge and decide that a person accused is guilty and, therefore, punish him by demolishing his residential/commercial property/properties. Such an act of the executive would be transgressing its limits contrary to the principles of ‘rule of law’ violating the principle of ‘separation of powers’. And that the public officials, who take the law in their hands, should be made accountable for such high-handed actions. Our constitutional ethos and values would not permit any such abuse of power and such misadventures cannot be tolerated by the court of law.

Invoking the doctrine of public trust and accountability 

The Court invoked the doctrine of public trust to restrain the unbridled state-lawlessness in bulldozing homes, holding that the executive exercises its powers as a ‘trustee’ of the citizens, as such executive actions must be consistent with maintaining public trust. Ultimately, the Court warned the officer/officers concerned to be held responsible for restitution of the demolished property at his/their personal cost in addition to payment of damages.

Allegations are not a Carte Blanche to bulldoze people’s properties

From the time this unconstitutional practice was first unleashed in Uttar Pradesh, to date, these demolitions follow a familiar pattern: “A protest takes place in a locality or neighbourhood, which turns violent. Soon after, the police declares that a certain individual, or set of individuals, have been identified as the “masterminds” behind the violence. Immediately after that, the municipality declares that these individuals are residing in unauthorised buildings (often – as in the most recent case – with backdated notices of doubtful authenticity). The buildings (homes) are then demolished. In the normal course of things, the time period between the police declaring that it has identified the masterminds behind the violence, the municipality declaring that the buildings are illegal, and the actual demolition, is under twenty-four hours”. In the face of this, the Court has upheld the rights of accused/ convicts against arbitrary and excessive measures in the form of demolitions.

If a citizen’s house is demolished merely because he is an accused or even for that matter a convict, without following the due process as prescribed by law, it will be totally unconstitutional for more than one reason. Firstly, the executive cannot declare a person guilty, as this process is the fundamental aspect of the judicial review. If the executive demolishes the property/properties of an accused person without following the due process of law, such an act of the executive would be transgressing its limits.

Acknowledging malafide “coincidences”

When a particular structure is chosen all of a sudden for demolition and the rest of the similarly situated structures in the same vicinity are not even being touched, a presumption could be drawn that the real motive for such demolition proceedings was not the illegal structure but an action of penalising the accused without even trying him before the court of law. No doubt, such a presumption could be rebuttable. The authorities will have to satisfy the court that it did not intend to penalise a person accused by demolishing the structure.

Rejecting collective punishment of entire families

The Court reiterates that the theory of community guilt and collective punishment has no place in Indian jurisprudence, and no person shall be punished except for his own guilt. It is a settled principle that a person is presumed to be innocent till he is held guilty. 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 a collective punishment on the entire family or the families residing in such structure. Our constitutional scheme and the criminal jurisprudence would never permit the same.

Mandatory guidelines

Having clearly outlined the unconstitutionality, illegality and inhumanity of bulldozing houses of persons accused/convicted of any crime, the Court lays down elaborate guidelines that are binding in nature.

Firstly, the Court has mandated that no demolition should be carried out without a prior show cause notice granting enough time is given for persons to respond (at least 15 days). Importantly the Court has passed crucial directions to prevent back-dating notices, while directing that the notices so contemplated must contain details of the alleged unauthorised construction, details of the specific violation and grounds for demolition and a date for personal hearing. The Court has directed every municipal/local authority to assign a designated digital portal, within 3 months, to carry details regarding service/pasting of the notice, the reply, the show cause notice and the order passed.

Secondly, the Court has held that personal hearing is mandatory and that minutes of such hearing would be recorded. Thirdly, the Court holds that, on conclusion of the above process, the designed authority is permitted to pass a final order only after giving reasons for doing so. The Court has also held that, in the event the designated authority orders demolition, then it has to demonstrate that the “extreme step of demolition is the only option available and other options like compounding and demolishing only part of the property are not available”.

Fourthly, the Court has provided breather time of 15 more days after the demolition order is passed, for availing the opportunity of approaching appellate forums challenging the demolition order. The affected party needs to be given some time so as to challenge the order of demolition before an appropriate forum, or to vacate and arrange their affairs.

Fifthly, the Court has mandated the manner in which demolitions are to take place. Proceedings of demolition are to be mandatorily videographed, and the concerned authority shall prepare a demolition report giving the list of police officials and civil personnel that participated in the demolition process. The video recording is to be duly preserved, while the demolition report is to be displayed on the digital portal.

Sixthly, violation of any of the directions would lead to initiation of contempt proceedings in addition to the prosecution, and errant officials would be held responsible for restitution of the demolished property at their personal cost in addition to payment of damages.

Conclusion

These two judgments are timely, necessary and welcome since, together, these may ring the death knell to this form of targeted demolitions and the weaponization of the bulldozer as a weapon for Hindutva politics.

Having said that, it must be said that the judgments fail in explicitly acknowledging these demolitions have a track record of disproportionately targeting Muslims. They amount to an attack on the fundamental norms of justice, equality, and above all, fraternity. The Court has refrained from identifying this practice with BJP-ruled states, even as it defeats the party’s most prized communal weapon. This represents a missed opportunity where the Court could have called out this illegality for what it is – a BJP-invented communal policy of punitive domicide.

In conclusion, and this criticism notwithstanding, these judgments will go a long way in dismantling the communal punitive domicide practiced by the BJP where it heads the state governments, as also the inhuman bulldozing of homes of the poor and slum dwellers in rural and urban India. 

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Writers, Editors and Literary Critics Condemn Hypocrisy Behind the JCB Prize for Literature

Over a hundred and eighty literary personalities around the world have criticised the hypocrisy behind the JCB Prize For Literature being awarded by the UK based bulldozer manufacturer JCB enterprises "on account of the company’s major role in the horrifying destruction of homes and livelihoods across India, Kashmir and Palestine". They have condemned "the obscuring of violence that this prize stands for".

K. Satchidanandan, Asad Zaidi, Isabella Hammad (Palestine/United States), Jacinta Kerketta, Meena Kandasamy, Siddhartha Deb, Mira Mattar (Palestine/Britain), Rafeef Ziadah (Palestine), Ahdaf Soueif (Egypt), Shailja Patel (Kenya), Nandita Haksar, Prof. Pranay Krishna, Prof. Gopal Pradhan, Devi Prasad Mishra, Prof. Ashutosh Kumar, Ramji Rai, Urmilesh, Bodhi Sattva, Alok Bajpai, Nasera Sharma, Jaleshwar U, Yogesh Dhyani, Priya Verma, Durga Singh and Roopam Mishra are some of the prominent signatories of this open letter.

The letter says "the employment of JCB equipment within far right Hindu supremacist projects in India comes as no surprise" in the context that JCB (India) is a wholly owned subsidiary of the British construction equipment manufacturer JCB, which has been one of the most influential donors to the British Conservative party. The Narendra Modi government has consistently used JCB bulldozers in a systematic campaign to demolish Muslim homes, shops and places of worship. "These same bulldozers and backhoe loaders are also responsible for home demolitions and settlement expansion in occupied Palestine, due to a contract between JCB’s agent and the Israeli Ministry of Defence, thus playing a key role in Israel’s continued attempts at ethnic cleansing of Palestinians. Unsurprisingly, JCB exports its support for occupation and displacement to Kashmir, where its equipment is deployed to demolish Kashmiri homes".

The open letter condemns JCB’s hypocrisy saying, "a prize awarded by a company responsible for the destruction of human lives globally is not a meaningful celebration of a country’s literature". "Through bulldozer demolitions, JCB is punishing the marginalised communities which it claims to be rewarding through the literature prize. This prize cannot wash off the blood on JCB’s hands."

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Nitish Government in Footsteps of Yogi’s Bulldozer Raj

When the Supreme Court of India was delivering its verdict against Bulldozer injustice of BJP governments, the Sahaba Academy Islamic School, situated hardly four kilometres away from Samastipur town, was bulldozed by Bihar police on 13 October. Hundreds of police personnel led by Kalyanpur PS officials reached along with tractors and JCB machines to demolish the school. They destroyed the main gate and dismantled windows and doors after forcing kids studying in classes to leave. The police took school furniture including childrens' desks away with them. They also threatened teachers and students present in school. 

This was done at the behest of local police to target one Rukhsar who was named in an FIR. The said school which caters to children from all communities is not even a residential premise of the accused. It is run by Rukhsar’s mother Shagufta Zabin, managed by his father and elder brother, while he himself also works as a teacher. The police acquired a seizure notice on 12 October which was not served or displayed in public as was required under the law, and came with bulldozers at the school while Rukhsar’s residence is in the neighbouring Mathurapur.

By the time this school was being demolished, Rukhsar had already surrendered in the court. The police, while returning after perpetrating this illegal act along with school’s furniture etc, was told by local people of his surrender in court the same day. The police, then, had to return all belongings of the school that were being taken by them. 

The said accused and target of bulldozers, was not even initially named in the first information report regarding a reported murder crime. His name was inserted later. Other accused are from different communities. 

Earlier on 10 October, police came in plainclothes to forcibly take Rukhsar without showing any papers, but he fled when local people intervened suspecting plainclothes police as criminals. This infuriated police more to the extent of illegally going for demolition of the school. Samastipur unit of CPIML took cognisance of this atrocity and sent a team comprising Dinesh Kushwaha, Raju Paswan and Insaf Manch leader Md. Dulare at the spot of demolition. They reported the details of this illegal act and announced a protest immediately. 

CPIML Bihar state committee termed this incident an attempt to copy Yogi’s bulldozer raj in Bihar and demanded action against police for this communally motivated vengeful act. A high level team led by party’s Bihar Legislative group leader Mahboob Alam, Baidyanath Yadav, Diwakar Prasad and Samastipur district secretary Umesh Kumar visited the affected school and met with teachers, students and general public on 20 October. They found the police committed this crime very intentionally. People in the area also told them that the name of Rukhsar has been incorporated in the FIR conspiratorially to target Muslim community. 

Comrade Mahboob Alam reported to the media of this atrocity and said that sadly this crime of bulldozer injustice was perpetrated on the same day when the Supreme Court had delivered a verdict against such acts. This in itself tells a lot about the ongoing communal bias of NDA governments in the country. The people of Bihar have always been the champions and defenders of secularism and the constitution and any attempt to tarnish secular credentials of people of the state will certainly be foiled, he said. 

The CPIML has demanded action against the police incharge of Kalyanpur thana and accountability from district SP. The party organised protests in Samastipur and Darbhanga against this bulldozer action.