On 2nd September 2024, the Supreme Court while hearing a batch of matters raising the issue of demolition of properties of persons who are accused of some crime, passed an order stating that it proposed to lay down certain guidelines on ‘Pan-India Basis’ so that the concerns with regard to the issues raised are taken care of. Shockingly within days of the abovesaid order of the Supreme Court,  A.K Sharma, UP’s power minister, asserted that the use of bulldozers would continue in the state, adding that it was an instrument used by chief minister Yogi Adityanath to wipe out goondaism and “mafia raj”. Thereafter, on 17th September, the Supreme Court passed an interim order staying demolitions across the country without its permission till October 1, however clarifying that this does not apply to unauthorised constructions on public roads, footpaths, railway lines or public places. This is definitely a welcome step, but surely falls short of the expected role of the Supreme Court in the face of such gross abuses of power that is this “bulldozer (in)injustice”.

The first step towards addressing the issue is the acknowledgement that this so-called “bulldozer (in)justice” has a definite pattern, is punitive, amounts to extra-judicial actions undermining the rule of law and in some cases amounts to collective punishment. Given that the State is in breach of the Constitution and the rule of law, in a serious, continuing and systemic manner, the Court cannot stop shy of declaring the illegality and fixing accountability for what has happened.

Legal Scholar, Gautam Bhatia , argues that 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”. He goes on to urge that to address this form of bulldozer (in)justice, the Courts ought to invoke the doctrine of an unconstitutional state of affairs i.e. “a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution”. Bhatia adds that it offers the Courts the opportunity to develop the remedy of a structural injunction (continuing mandamus) – “to take cognisance of the situation, issue interim orders, and monitor for compliance – which, crucially, will not be limited to single cases, but will extend to the unconstitutional state of affairs at large”.

The punitive nature of, and malafide intent behind, the demolitions is apparent from its timing. That is to say that the properties of people are demolished only when they are accused of a crime. There can be no doubt about the communal intent behind these punitive demolitions, given that it is primarily the properties of Muslims that have been targeted. In state after state, where the BJP heads the government, its ministers have made this more than apparent. In April 2022, State authorities in Khargone, Madhya Pradesh demolished homes of Muslims accused of clashes and stone pelting on the occasion of Ram Navami. These demolitions were preceded by Home Minister Narottam Mishra warning, “Jis ghar se pathar aaye hain, us ghar ko hi patharon kaa dher banaenge (We will turn the houses from where the stones were pelted to a heap of rubble)”. 

“Bulldozer Justice” is the expression commonly used to describe these actions, which contrary to its illegality, extends an aura of legitimacy to it. In this regard it is useful to refer to Douglas Porteous and Sandra Smith , who used the term domicide to describe “the deliberate destruction of home by human agency in pursuit of specific goals, which causes suffering to the victims.” Porteous and Smith elaborated that there were two kinds of domicide - the extreme and the everyday. “Everyday domicide”, referring to the demolition of homes occurring continuously world over, affecting everyone (except the wealthy and those who are its perpetrators), and which results from developmental and urban redevelopment projects. By contrast, “Extreme Domicide” referred to “major, planned operations that occur rather sporadically in time but often affect large areas and change the lives of considerable numbers of people” such as war, settler colonialism or ethnic. Drawing from here, the instant form of bulldozing of homes of Muslims accused of crimes, witnessed in BJP-governed states across the country, could be referred to as “Punitive Domicide” or, given the communal intent behind these punitive actions, even more appropriately “Communal Punitive Domicide”.

The first step for the Supreme Court ought to be the acknowledgement that such state actions amount to communal punitive domicide and the declaration that this distinct, punitive, communal and even collective, form of punishment, is unconstitutional and illegal. Contrary to the interim order passed on 17th October, the Court has to recognise that such demolitions, even under the ruse of encroachments and violations of municipal laws, does not alter the punitive and communal nature of these actions. Indeed, this was what the Punjab & Haryana High Court  did when it its order dated on 7th August 2023 halting the demolition drive carried out by the Haryana authorities in communal violence-hit Nuh and Gurugram: "Apparently, without any demolition orders and notices, the law and order problem is being used as a ruse to bring down buildings without following the procedure established by law". It emphatically stated that “the issue also arises whether the buildings belonging to a particular community are being brought down under the guise of law and order problem and an exercise of ethnic cleansing is being conducted by the State”.

Secondly, the Court must constitute Committees (including members suggested by the parties before the Court) to enquire into the cases of  communal punitive domicide. The said Committee would have to ascertain whether the property of the concerned person was demolished under any pretext after they were accused of any offence, and whether the pretext is justified under existing laws covering encroachment, illegal construction etc. Even if yes, the timing, compliance with due procedure, among others would have to be enquired into. Where the demolitions are observed to be communal and punitive, the Committee would need to identify the errant officials and ascertain the loss, monetary and otherwise, caused to the concerned persons. Strict punishment of such officials, and adequate compensation to such persons would have to follow. This approach has been adopted by the Gauhati High Court while dealing with a case pertaining to the bulldozing of houses by the police personnel of Batadraba Police Station (PIL (Suo Moto) 3/2022, In Re- The State of Assam and 4 others). Various orders passed in the nature of a continuing mandamus, resulted in a One-man Commission being constituted by the Assam State government to enquire into the incident and ascertain the appropriate action to be taken even against the erring officers.

Lastly, the Court must lay down guidelines for any demolitions and evictions across the country. Too frequently, bulldozer (in)justice is visited upon the rural and urban poor tearing down their homes and destroying their lives. This has to end. There ought to be no place for such inhumanities in a democracy.