Opinion by Areeb Uddin Ahmed
The exclusion of “unauthorised structures” from the guidelines undermines the principle of proportionality and due process. Demolitions in Maharashtra’s Malvan and Delhi’s Seelampur underscore this
There have been numerous instances where houses, properties, and other spaces like shops were demolished across the country, mainly in Uttar Pradesh, Delhi, and Madhya Pradesh. (File Photo)
Areeb Uddin Ahmed
Mar 13, 2025 14:26 IST First published on: Mar 13, 2025 at 14:26 IST
The right to shelter has been guaranteed as a fundamental right under Article 21 of the Indian Constitution. This right has gone through many tests, starting with anti-encroachment drives (Olga Tellis v. Bombay Municipal Corporation) to demolition drives with the help of bulldozers. Although it has been given a fundamental status in our Constitution, in the past decade, the authorities have exploited and saturated this right.
There have been numerous instances where houses, properties, and other spaces like shops were demolished across the country, mainly in Uttar Pradesh, Delhi, and Madhya Pradesh. The astonishing part is that most of these demolitions reversed the burden of the accused, i.e., guilty before trial, and the damage caused was irreparable because one can rebuild a house, but not a home. All these incidents of demolition without following due process reverse the criminal justice process. It gives you punishment and then asks you to face the trial. The lack of proper notice and opportunity to present a defence leaves the affected parties without recourse, rendering the actions of the authorities arbitrary and oppressive.
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In Re: Directions in the matter of demolition of structures is a recent case where the Supreme Court came down heavily on demolitions as collective punishment. The court said that the executive cannot demolish the houses/properties of persons only on the ground that they are accused or convicted of a crime. Following this, the court finally laid down a set of guidelines that must be followed if there is any demolition. It held that, even if demolition orders are passed, the affected party needs to be heard and given time. In addition, even in cases where the persons do not wish to contest the demolition, sufficient time has to be given. The court remarked that, “it is not a happy sight to see women, children, and aged persons dragged to the street overnight. Heavens will not fall on the authorities if they hold their hands for some period.”
The SC judgment, however, inadvertently created a potential loophole in para 91. It reads: “At the outset, we clarify that these directions will 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.” By explicitly excluding “unauthorised structures” from the scope of the guidelines, the court has provided a broad and subjective category that can be misused to justify demolitions without due process or consideration of individual circumstances.
The term “unauthorised structures” is inherently vague and open to interpretation. Municipal authorities, often under political or administrative pressure, misuse this provision to label properties as “unauthorised” arbitrarily, even in cases where there are disputes over ownership, pending legal challenges, or extenuating circumstances. This could lead to a wave of demolitions that disproportionately affect marginalised communities, who may lack the resources to challenge such actions legally. There is also no logical reason as to why the requirements of notice and proportionality should not apply to such individuals who are residing at such “unauthorised” places.
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Moreover, the exclusion of unauthorised structures from the guidelines undermines the principle of proportionality and due process. Even if a structure is deemed unauthorised, it does not automatically justify its demolition, especially without a thorough examination of the facts, the rights of the occupants, and the potential humanitarian impact. The court’s decision risks creating a situation where demolitions become a punitive measure rather than a last resort, violating the fundamental rights of individuals under Articles 14, 19, and 21 of the Constitution.
One of these instances can be traced from Maharashtra, where an incident was reported that a minor praised Pakistan cricket team’s performance in the Champions Trophy. Following this, the Malvan municipality authorities demolished the house of the minor and his family shop. They also demolished a shop belonging to the brother of the boy’s father. No doubt, if the investigation had to be initiated, then the agencies are free to register a complaint, but demolishing one’s house was not a solution, as the SC had rightly observed.
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Another case is the recent anti-encroachment drive where the homes of jhuggi dwellers – along the Yamuna riverbank – were demolished in Northeast Delhi’s Seelampur on March 5. It is equally alarming that the report in this paper reflects that “the authorities had issued the eviction notice on Sunday, instructing residents to vacate their homes by Monday. The demolition drive, part of the Yamuna beautification project, was scheduled for Tuesday and Wednesday.” Was the right to be heard even given to these jhuggi residents? Audi alteram partem?
It’s high time that the right to shelter be given a fundamental application independent of Article 21. It would be relevant to refer to para 54 of the judgment in Suresh Tirkey v. The Governor with Connected Matters (Jharkhand High Court), where the court has beautifully summed up the shelter jurisprudence: “Across the world, the law recognises the rights of even an encroacher to be protected from State action which is not in consonance with the procedure established by law. Except in a very few exceptional kinds of cases such as encroachments on public roads and pavements, the issue of illegal constructions and encroachments is not a simple one and invariably the courts are confronted with contentious issues which cause delays in rendering decisions. But then, this is the procedure in law we have chosen for ourselves. In a country like India which professes high democratic values, the Constitution of India stands like a lighthouse illuminating life aspirations of the people of India that every State action must follow the procedure established by law.”
The writer is a practising advocate at the Allahabad High Court
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