The Executive cannot replace the Judiciary and legal process should not prejudge guilt of an accused, the Supreme Court said today, taking a tough stand on the issue of ‘bulldozer justice’ and laying down guidelines for carrying out demolition.

The bench of Justice BR Gavai and Justice KV Viswanathan delivered its judgment on petitions challenging bulldozer action against people accused of crimes. This trend, which caught on in several states, is referred to as ‘bulldozer justice’. State authorities have, in the past, said only illegal structures were demolished in such cases. But several petitions were filed before the court, flagging the extrajudicial nature of the action.

Justice Gavai said it is the dream of every family to have a house and an important question before the court was whether the Executive should be allowed to take away someone’s shelter. “The rule of law is the foundation of a democratic government… the issue relates to fairness in the criminal justice system, which mandates that legal process should not prejudge guilt of accused,” the bench said.

“We have considered the rights guaranteed under the Constitution that provide protection to individuals from arbitrary State action. The rule of law provides a framework to make sure individuals know property will not be taken away arbitrarily,” it added.

On the separation of powers, the bench said adjudicatory functions are entrusted to the judiciary and the “Executive cannot replace the Judiciary”. “We have referred to the doctrine of public trust and public accountability. We have concluded that if Executive demolishes the house of person arbitrarily merely because he is accused, it violates principle of separation of powers,” Justice Gavai said.

The court said accountability must be fixed on public officials who take law into their hands and act in a high-handed manner. “State and its officials can’t take arbitrary and excessive measures. If any officer of the State has abused his power or acted in total arbitrary or malafide manner, he cannot be spared,” it added.

Justice Gavai pointed that when a particular structure is chosen for demolition suddenly and similar other properties are not touched, then the presumption could be that the real motive was not razing the illegal structure, but “penalising without trial”.

“For an average citizen, construction of a house is the culmination of years of hard work, dreams and aspirations. House embodies collective hope of security and future. If this is taken away, authorities must satisfy it is the only way,” the bench said.

The court also questioned if authorities can demolish a house and deprive its residents of shelter if only one person residing there is an accused.

Using its powers under Article 142 of the Constitution, the Supreme Court laid down guidelines for demolitions. It said no demolition should be carried out without a showcause notice. The person this notice is served to can respond within 15 days or the time provided in local civic laws, whichever is later.

This notice must have information of the nature of unauthorised construction, details on the specific violation and the grounds for demolition, the court said. The authority concerned must hear the accused and then pass a final order, it added. The house owner will be given a 15-day period to remove the illegal structure and authorities will proceed with a demolition only if an appellate authority doesn’t pause the order.

Violation of the court’s directions would lead to contempt proceedings, the bench warned. Officers should be told that if a demolition exercise is found to be in violation of norms, they will be held responsible for restitution of the demolished property, the court said. The cost for this, the court said, would be recovered from the officials’ salary.

The court said all local municipal authorities must set up a digital portal within three months that has details of showcause notices served and final orders on illegal structures.