The Supreme Court on Tuesday reserved its decision on a batch of petitions seeking directions to the Central and state governments to refrain from bulldozing homes or shops of accused in criminal proceedings as an extra-legal punitive measure.
A Bench of Justices BR Gavai and KV Viswanathan said that the interim order passed by it earlier to ban authorities from demolishing properties of those suspected of criminal activities, without first seeking the Court's permission, would stand extended till the case is decided.
The Court clarified that the order would not apply to cases where such demolitions are required to clear unauthorised construction.
Today, the Court suggested that there should an online portal for intimation of those going to be affected by proposed demolitions, and videography of the action taken.
It also made it clear that the directions to be issued by the top court would apply pan-India and would not be restricted to any particular community.
"We are a secular country and our directions will be for all irrespective of religion or community. Of course for encroachments we have said...if it is on public road or footpath or water body or railway line area, we have clarified. If there is any religious structure on the middle of the road be it gurudwara or dargah or temple, it cannot obstruct public," the Court said.
The Court also observed that judicial oversight was required over the orders issued for demolition of any constructions
"Notices what happens is time given for reply and then...Real case is after the order. Not much judicial oversight required in notice, where it is needed is in correction of order. One glance by a judicially trained mind," Justice Viswanathan observed.
During today's hearing Solicitor General (SG) Tushar Mehta appeared for the States of Uttar Pradesh, Gujarat and Madhya Pradesh, and submitted,
"Very dispassionately I will give my suggestions, UP has in fact shown the way."
The Court at the outset asked whether demolition can take place on the ground of someone being an alleged criminal.
"No absolutely not. Even for heinous crimes like rape or terrorism. Like my lord said, it cannot also be that notice issued/stuck one day before, it has to be in advance. Town planning authorities have that provision, lordships may say written notice be given by registered post so this pasting business stops and it gives 10 days time from date of receipt," Mehta submitted in response.
At this stage, the Court suggested that there should be an online portal for intimation of the public before any such action is taken.
With regard to the general order issued by the top court, SG Mehta further submitted that the directions had been issued "on few instances alleging that one community is being targeted".
Justice Gavai remarked that for unauthorised construction, there has to be action based on law and the same cannot be dependent on religion or faith.
The Court also suggested that once an order for a demolition is passed, it may not be executed for some time.
However, Mehta asked whether that would amount to amending municipal laws and affect evictions. At this point, Justice Viswanathan said,
"Eviction is restitutable, but demolitions is on a different footing...To give time to the family. Even if it is unauthorised construction, it is not a happy sight to see people on the road. What joy is there seeing them like that? Nothing is lost if they are given time for alternate arrangements. In some cases, the civic bodies do."
Other lawyers, including Senior Advocates Abhishek Manu Singhvi, CU Singh, Sanjay Hegde, MR Shamshad and Advocate Nizam Pasha also made arguments in the matter.
Representing one Ganesh Gupta, whose shop was demolished in Jahangirpuri, Hegde referred to the spectacle surrounding such demolition drives. He particularly referred to an instance in which a well-known news anchor jumped on a bulldozer in action while covering the Jahangirpuri demolitions.
"When there is a power imbalance, and with respect to municipal laws there is collective punishment through destruction of property, which is unknown to rule of law in India. That preface is extremely necessary because otherwise it is a question of 'we will demolish first and justify later'," Hegde submitted.
Meanwhile, SG Mehta opposed the application moved by the United Nations Special Rapporteur on Adequate Housing for intervention in the matter.
"I have a serious objection. I know for whom they are, we don't want this to internationalise. Our constitutional courts are powerful enough and our government is assisting non-adversarially and we don't need international agency to come in," he said.
Mehta also argued that the framing of guidelines based on aberrations may not be beneficial, adding that exceptional cases sometimes lead to laws which are not helpful to genuine cases.
Advocate Vrinda Grover, representing the Rapporteur, sought a hearing amid strong opposition from Mehta. Grover submitted that across the world, there is the concept of amicus briefs.
At this stage, Mehta said that the rapporteur was an outsider.
"What outsider? He is an Indian who studied in MIT. We should be proud," Grover responded.
The Court also was not convinced to allow the rapporteur's intervention. However, it said Grover herself can make suggestions.
On September 17, the Court passed an interim order banning authorities from demolishing properties using bulldozers of those suspected of criminal activities, without first seeking its permission.