In Re: Directions In The Matter Of Demolition Of Structures vs NaN

Court: Supreme Court
Case type: Not Found
Decided on: 13-11-2024

<pre> 2024 INSC 866
REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CIVIL/CRIMINAL ORIGINAL JURISDICTION 
 
WRIT PETITION (CIVIL) NO.295 OF 2022 
 
In Re: Directions in the matter of demolition of structures 
 
 
WITH 
 
WRIT PETITION (CRIMINAL) NO. 162 OF 2022 
 
WRIT PETITION (CIVIL) NO. 328 OF 2022 
</pre><table><thead><tr><th>I.</th><th>BACKGROUND</th><th></th><th></th><th>Paras 1 to 13</th></tr></thead><tbody><tr><td>II.</td><td>RULE OF LAW</td><td></td><td></td><td>Paras 14 to 33</td></tr><tr><td>III</td><td>SEPARATION OF POWERS</td><td></td><td></td><td>Paras 34 to 44</td></tr><tr><td>IV.</td><td>DOCTRINE OF PUBLIC TRUST AND PUBLIC ACCOUNTABILITY</td><td></td><td></td><td>Paras 45 to 54</td></tr><tr><td>V.</td><td>RIGHTS OF THE ACCUSED UNDER THE CONSTITUTION</td><td></td><td></td><td>Paras 55 to 62</td></tr><tr><td>VI.</td><td>PRINCIPLES OF CRIMINAL LAW: PRESUMPTION OF INNOCENCE AND NATURAL JUSTICE</td><td></td><td></td><td>Paras 63 to 75</td></tr><tr><td>VII.</td><td>RIGHT TO SHELTER</td><td></td><td></td><td>Paras 76 to 86</td></tr><tr><td>VIII.</td><td>PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT</td><td>PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT</td><td></td><td>Para 87 to 89</td></tr><tr><td>IX.</td><td>DIRECTIONS</td><td></td><td></td><td>Paras 90 to 99</td></tr></tbody></table><pre>
 
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2024.11.13
11:27:11 IST
Reason:
 
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J U D G M E N T 
 
B.R. GAVAI, J. 
" अपना घर हो , अपना आंगन हो , 
इस ख्वाब में हर कोई जीता है। 
इंसान के दिल की ये चाहत है
 , 
दक एक घर का सपना कभी न छूटे। " 
(To have one’s own home, one’s own courtyard – this dream lives
in every heart. It’s a longing that never fades, to never lose the
dream of a home.)
This is how the importance of shelter has been described by
a famous Hindi poet ‘Pradeep’.
It is a dream of every person, every family to have a shelter
above their heads. A house is an embodiment of the collective
hopes of a family or individuals’ stability and security.
An important question as to whether the executive should
be permitted to take away the shelter of a family or families as a
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measure for infliction of penalty on a person who is accused in a
crime under our constitutional scheme or not arises for
consideration.
Before we proceed with our judgment, we may gainfully
refer to the following observation of Lord Denning in the case of
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Southam v. Smout : 
“‘The poorest man may in his cottage bid
defiance to all the forces of the Crown. It
may be frail – its roof may shake – the wind
may blow through it – the storm may enter
– the rain may enter – but the King of
England cannot enter – all his force dares
not cross the threshold of the ruined
tenement.’ So be it – unless he has
justification by law.”
I. BACKGROUND 
1. This batch of Writ Petitions filed under Article 32 of the
Constitution of India seeks to raise the grievance on behalf of
various citizens whose residential and commercial properties
have been demolished by the state machinery, without following

1
(1964) 1 QB 308 at 320
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</pre><table><thead><tr><th>the due process of law, on the ground of them being involved as</th><th></th><th></th></tr></thead><tbody><tr><td>an accused in criminal offences.</td><td></td><td></td></tr><tr><td>2. The petitions inter alia seek a direction to the Union of India</td><td></td><td></td></tr><tr><td>and the concerned States directing them that no precipitative</td><td></td><td></td></tr><tr><td>action be taken in respect of residential or commercial properties</td><td></td><td></td></tr><tr><td>of any accused in any criminal proceedings.</td><td></td><td></td></tr><tr><td>3. It has also been prayed that a direction be issued for strict</td><td></td><td></td></tr><tr><td>action to be taken against the officials of the state machinery who</td><td></td><td></td></tr><tr><td>have participated or participate in future in such an illegal</td><td></td><td></td></tr><tr><td>exercise of demolition.</td><td></td><td></td></tr><tr><td>4. We have heard the matter from time to time.</td><td></td><td></td></tr><tr><td>5. When the matter was listed on 2nd September 2024, this</td><td></td><td></td></tr><tr><td>Court passed the following order:</td><td></td><td></td></tr><tr><td></td><td>“UPON hearing the counsel the Court</td><td></td></tr><tr><td></td><td>made the following</td><td></td></tr><tr><td></td><td>O R D E R</td><td></td></tr><tr><td></td><td>1. IA. Nos.194520, 195057, 194619,</td><td></td></tr><tr><td></td><td>188144 and 186082 of 2024 are allowed.</td><td></td></tr><tr><td></td><td></td><td></td></tr></tbody></table><pre>
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2. The present batch of petitions raise a
grievance that the properties of persons
who are accused of some crime are being
demolished.

3. The position is disputed by the State of
Uttar Pradesh and an affidavit has been
filed that the immovable properties can be
demolished only in accordance with the
procedure prescribed by law. An affidavit
has also been filed on behalf of the State
of Uttar Pradesh by Special Secretary,
Home Department, Government of Uttar
Pradesh.

4. We appreciate the stand taken by the
State of Uttar Pradesh in the affidavit filed
by it.

5. We propose to lay down certain
guidelines on ‘Pan-India Basis’ so that the
concerns with regard to the issues raised
are taken care of.

6. We find that it will be appropriate that
the learned counsel for the parties give
their suggestions so that the Court can
frame appropriate guidelines, which will
be applicable on ‘Pan-India Basis’.

7. We request all the parties to also supply
a copy of their suggestions to Shri
Nachiketa Joshi, learned Additional
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</pre><table><thead><tr><th></th><th>Advocate General for the State of Madhya</th><th></th></tr></thead><tbody><tr><td></td><td>Pradesh, on his Email ID which is</td><td></td></tr><tr><td></td><td>[email protected], who is</td><td></td></tr><tr><td></td><td>requested to collate the same.</td><td></td></tr><tr><td></td><td></td><td></td></tr><tr><td></td><td>8. List on 17.09.2024.”</td><td></td></tr><tr><td></td><td></td><td></td></tr><tr><td>6. Vide order dated 17th September 2024, we directed that,</td><td></td><td></td></tr><tr><td>“there shall be no demolition anywhere across the country without</td><td></td><td></td></tr><tr><td>seeking leave of this Court”. However, we clarified that, “our order</td><td></td><td></td></tr><tr><td>would not be applicable if there is an unauthorized structure in</td><td></td><td></td></tr><tr><td>any public place such as road, street, footpath, abutting railway</td><td></td><td></td></tr><tr><td>line or any river body or water bodies and also to cases where</td><td></td><td></td></tr><tr><td>there is an order for demolition made by a Court of law”.</td><td></td><td></td></tr><tr><td>7. Thereafter, we heard the matter at length on 1st October</td><td></td><td></td></tr><tr><td>2024.</td><td></td><td></td></tr><tr><td>8. We have heard Shri Abhishek Manu Singhvi, Shri M.R.</td><td></td><td></td></tr><tr><td>Shamshad, Shri Sanjay Hegde, learned Senior Counsel</td><td></td><td></td></tr><tr><td>appearing for the petitioners, Shri Tushar Mehta, learned</td><td></td><td></td></tr><tr><td>Solicitor General of India (“SG” for short), appearing for the Union</td><td></td><td></td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>of India as well as for some of the States, Shri Nachiketa Joshi,</th><th></th><th></th><th></th><th></th></tr></thead><tbody><tr><td>learned Senior Counsel and Shri C.U. Singh, Smt. Nitya</td><td></td><td></td><td></td><td></td></tr><tr><td>Ramakrishnan, learned Senior Counsel and Shri Mohd.</td><td></td><td></td><td></td><td></td></tr><tr><td>Nizammudin Pasha, Smt. Fauzia Shakil and Smt. Rashmi Singh,</td><td></td><td></td><td></td><td></td></tr><tr><td>learned counsel appearing for their respective applicant(s)</td><td></td><td></td><td></td><td></td></tr><tr><td>seeking intervention/impleadment.</td><td></td><td></td><td></td><td></td></tr><tr><td>9. In pursuance to our order dated 2nd September 2024,</td><td></td><td></td><td></td><td></td></tr><tr><td>various learned counsel had given their suggestions.</td><td></td><td></td><td></td><td></td></tr><tr><td>10. Shri Nachiketa Joshi, learned Senior Counsel has made a</td><td></td><td></td><td></td><td></td></tr><tr><td>compilation of the suggestions given by different learned counsel</td><td></td><td></td><td></td><td></td></tr><tr><td>on different points. The same are reproduced herein below:</td><td></td><td></td><td></td><td></td></tr><tr><td>S.No.</td><td>TOPIC/ ISSUE</td><td>COUNSEL’S/ PARTY NAME</td><td>SUMMARY OF SUGGESTIONS</td><td></td></tr><tr><td>1.</td><td>SHOW CAUSE NOTICE</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>RELEVANT DETAILS IN SHOW CAUSE NOTICE: a) Specific grounds on the basis of which the violation is alleged and the demolition is proposed; b) Description of building/structure proposed to be demolished and the extent of unauthorized construction, if any; c) Details of relevant applicable provisions and laws alleged to have been breached (municipal laws, forest laws etc.);</td><td></td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td>SHOW CAUSE NOTICE</td><td></td><td>d) If the alleged violation can be compounded or regularized on payment of a fee/penalty; e) Time period within which the owner has to reply; and f) Documents that the owner has to furnish. SERVICE OF SHOW CAUSE NOTICE: 1. Delivery Method: Serve the Show Cause Notice by hand to the owner of the dwelling/commercial establishment slated for demolition. 2. Witness Requirement: A neighbour of the owner must be present as a witness during the notice service and sign the notice. 3. Report of Service: The officer serving the notice must prepare a report detailing the service. 4. Alternate Delivery: If the owner is not residing in the district, the notice can be sent via Registered Post/Speed Post AD. SERVICE OF NOTICE TO OCCUPIER: 1. Occupier Notification: If the property is occupied by someone other than the owner, serve the notice to the occupier in the same manner. 2. Direction to Occupier: The notice must include a directive for the occupier to inform the owner about the notice. 3. Affixing Notice: The notice should be affixed to the gate/door or another conspicuous part of the property proposed for demolition. UPLOADING NOTICE ON THE WEBSITE: Copy of notice and service report should also be uploaded on the website of the municipal corporation or concerned authority.</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>TIME TO FILE REPLY: Minimum 2 months- time REPLY TO SHOW CAUSE NOTICE: The owner shall file its reply to the show cause notice within the time prescribed, along with relevant supporting material. A receiving or acknowledgment of the reply should be provided to the owner.</td></tr><tr><td></td><td></td><td>Ms. Nitya Ramakrishnan, Sr. Adv.</td><td>Issuance of Show Cause Notice: • If the authority believes an unauthorized building/development exists, a show cause notice must be served to both the owner and occupier before any action is taken. • The notice must also be pasted on the property and published in three newspapers with over one lakh circulation—one each in Hindi, English, and a third language designated by the state. • The newspaper notice only needs to include the owner's and occupier's names, property address, and a link to a website with the full notice and timestamp. Content of the Notice: The notice must specify the legal provisions under which it is issued, the violations identified, and the specific portion and extent of the building/structure that is deemed illegal. Time for Response: The notice must provide a response period of no less than 45 days and no more than 60 days for the owner/occupier to justify why the structure should not be demolished. Notice to Family Members: If the owner or occupier cannot be found, the notice may be</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>served to a member of their immediate family, with additional time for response granted in such cases</td></tr><tr><td></td><td></td><td>Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs.</td><td>A.Publication of notice of demolition in at least 10 days in advance in local newspapers in addition to personal service of notice on the owner of the property sought to be demolished; B. Personal hearing of owner of property;</td></tr><tr><td></td><td></td><td>Mr. M.R. Shamshad, Sr. Adv.</td><td>Service of Notice: Once the list is prepared, the officer must serve written notice at least 60 days before the proposed demolition. The notice must contain: a. Reason for Proposed Demolition: A brief explanation of why the demolition is proposed. b. Personal Service of Notice (Dasti): The notice must be served in-person with two neighborhood witnesses, as well as by registered post (acknowledgment due), in line with procedures laid down by High Courts and the Supreme Court for service of notices or summons. c. Online Upload: The notice must be uploaded on the Municipal authority's website. d. Vernacular Language: The notice must be provided in the vernacular language(s) prevalent in the area where the property is located. e. Affidavit of Compliance: The officer must swear an affidavit 10 days before the demolition, confirming compliance with all notice-serving procedures, and submit it to the Divisional Commissioner or equivalent officer. f. Notice to Owner in Custody: If the owner is in custody, the notice must be served via the</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th><th></th></tr></thead><tbody><tr><td></td><td></td><td></td><td>concerned Judicial Magistrate at least 60 days before the proposed demolition. Explanation: The 60-day period begins from the date of delivery of the notice to the affected persons.</td><td></td></tr><tr><td>2.</td><td>CONSIDE RATION OF THE REPLY TO SHOW CAUSE</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>1. Review of Owner's Reply: Authorities shall</td><td></td></tr><tr><td></td><td></td><td></td><td>consider the reply and supporting material</td><td></td></tr><tr><td></td><td></td><td></td><td>provided by the owner.</td><td></td></tr><tr><td></td><td></td><td></td><td>2. Request for Additional Information: If</td><td></td></tr><tr><td></td><td></td><td></td><td>additional explanations/material are</td><td></td></tr><tr><td></td><td></td><td></td><td>needed, the authority will inform the owner</td><td></td></tr><tr><td></td><td></td><td></td><td>in writing. The owner will have 4 weeks to</td><td></td></tr><tr><td></td><td></td><td></td><td>furnish the requested information.</td><td></td></tr><tr><td></td><td></td><td></td><td>3. Personal Hearing: The authority will issue</td><td></td></tr><tr><td></td><td></td><td></td><td>an intimation to the owner specifying the</td><td></td></tr><tr><td></td><td></td><td></td><td>date and time for a personal hearing. The</td><td></td></tr><tr><td></td><td></td><td></td><td>personal hearing for the occupier will not</td><td></td></tr><tr><td></td><td></td><td></td><td>replace the need for a hearing with the owner</td><td></td></tr><tr><td></td><td></td><td></td><td>or authorized representative.</td><td></td></tr><tr><td></td><td></td><td>Ms. Nitya Ramakrishnan, Sr. Adv.</td><td>The person(s) in response to the notice shall have the following rights: 1. The concerned person in receipt of the above-mentioned Notice shall have the right to engage an Advocate/Counsel and may also be allowed to appear in- person. 2. To present evidence that the construction is legal. 3. The opportunity to compound the offence, that is, to make modifications to comply with the regulations.</td><td></td></tr><tr><td>3.</td><td>PROPOS ED ACTION SHOULD BE PROPOR TIONAL TO THE</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>The authority shall in the meanwhile also consider the nature and extent of unauthorized construction, if the unauthorized construction can be regularized or compounded on payment of fee/penalty under applicable law. If yes, then the owner shall be intimated of such avenue and provided some reasonable time, not being less than 4 weeks, to avail the option. In case the breaches are technical and inconsequential in</td><td></td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td>VIOLATIO N</td><td></td><td>character, and the house/commercial establishment can be saved by removing the offending part, the owner may be permitted to remove the encroachment and save the building. The administrative action should be proportional to the alleged breach and demolition should be the last option.</td></tr><tr><td>4.</td><td>ORDER/ NOTICE OF DEMOLIT ION ORDER/ NOTICE OF DEMOLIT ION</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>Authority's Satisfaction and Demolition Order: After considering the owner's reply, written explanation, and physical hearing, if the authority is satisfied that there are violations beyond condonable limits or cannot be regularized, an order for demolition may be made. Relevant Details in the Demolition Order: • The demolition order must state reasons for the proposed action and mention the proposed demolition date. A minimum of 8 weeks must be given from the service of the order, allowing the owner time to approach the courts, remove belongings, and arrange alternate accommodation. • The head of the authority's department must record satisfaction, certify compliance with guidelines, and ensure the action is taken in good faith. Service of Demolition Order: The service of the demolition order should follow the same procedure as the show cause notice.</td></tr><tr><td></td><td></td><td>Ms. Nitya Ramakrishnan, Sr. Adv.</td><td>If, after the abovementioned inquiry, the appropriate authority decides that the demolition of the offending part or the whole of the building/ development/ structure it will issue an order affording the owner/occupier to demolish the offending portions within 30 (thirty) days failing which it will issue a notice of demolition in the manner explained hereunder.</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>Personal Service of Demolition Notice: The demolition notice must be served personally on the owner/occupier by a Nodal officer, appointed in each state for serving and implementing such orders, ensuring adherence to timelines. Period for Appeal and Legal Recourse: The notice must state a period for appeal and legal recourse, which shall not be less than 60 days. Additional Publication Requirements: The demolition notice must also be pasted on the property and published in three newspapers (Hindi, English, and a third language). The newspaper notice needs to include only the owner’s/occupier’s name, property address, and a link to a website where the full notice with a timestamp is uploaded. Scope of Demolition: No demolition shall extend beyond the portion deemed illegal. Any excess demolition will require compensation as per Part C of these guidelines. Special Permission for Demolition: If the owner or occupier is not found, special permission from the Nodal officer is required before proceeding with the demolition.</td></tr><tr><td></td><td></td><td>Mr. M.R. Shamshad, Sr. Adv.</td><td>Survey of the Neighborhood: If an officer believes a dwelling unit, house, or shop is subject to demolition, they must first conduct a neighborhood survey to determine how many properties in the area are also liable for demolition based on municipal law. Preparation of Demolition List: After completing the neighborhood survey, the officer shall prepare a list of all houses or units deemed fully or partially liable for demolition.</td></tr><tr><td></td><td></td><td>Mr. Mohd. Nizammudin Pasha & Ms.</td><td>Order of demolition must record reasons therefor inter alia including the following: I. Documents relied upon by owner to prove ownership/validity of property;</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td>Rashmi Singh, Advs.</td><td>II. Relevant provisions under which property is illegal/encroachment; III. Alternative rehabilitation or compensation provided to owner; IV. Time given to owner to move belongings etc. from property sought to be demolished; No order of demolition ought to be passed till sufficient time has been granted to the owner of property to take recourse to effective legal remedies including appeal/challenge against the order of demolition. In any proceedings where demolition is challenged on the ground of the same being punitive, the fact that the aggrieved person has been singled out for action and no action has been taken against similarly situated persons in the vicinity must be a valid consideration for grant of relief;</td></tr><tr><td>5.</td><td>CHALLEN GE TO THE ORDER OF DEMOLIT ION</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>Judicial Examination of Demolition Orders: Courts must assess whether the proposed demolition is motivated by malice or bad faith. Presumption of Malice in Law: (a) If the demolition is triggered by the owner's or a family member's involvement in a criminal case, it will be presumed punitive and illegal, making the action malicious. (b) If the authority acts with undue haste after the owner or family member becomes involved in a criminal case, malafide intent will be presumed. (c) If the authority selectively targets a property while ignoring neighbouring properties with similar violations, this "pick and choose" action will also be presumed malicious.</td></tr><tr><td></td><td></td><td>Mr. M.R. Shamshad, Sr. Adv.</td><td>4. After service of notice as per the procedure set out above, the aggrieved person shall take appropriate remedy within fifteen days and the appropriate authority, after giving opportunity</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>of personal hearing shall decide the same within fifteen days thereafter and the order of disposal shall be communicated to the aggrieved person on WhatsApp, email etc. as provided on the application challenging the notice. Further, the order disposing the appeal shall also be uploaded on the respective Municipal Corporation Website. 5. In case the Appellate remedy is provided and appeal is filed, the demolition shall not be carried out till disposal of the said appeal. In case of dismissal of appeal, the Appellate Authority shall give at least ten days to the residents, occupants to vacate the premises. The order of disposal shall be served on the appellant through electronic modes and immediately uploaded on the website.</td></tr><tr><td>6.</td><td>ACT OF DEMOLIT ION</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>No demolitions should be carried out in the early morning and late night. Video recording of the same shall be carried out under the orders of the said authority. No persons or their movable property, shall be subject to any direct or indirect harm.</td></tr><tr><td>7.</td><td>MALFEA SANCE OF ERRING OFFICER S AND ACCOUN TABILITY</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>I. If the proposed action of demolition was in bad faith and actuated by malice, disciplinary proceeding may be initiated against the erring officers under their applicable service rules. II. In case any demolition is carried out in violation of the guidelines, the erring officers and the head of the department that has carried out the demolition shall be personally liable. In addition, proceedings for contempt against the erring officers may be initiated. The compensation to be paid to the owner shall also be recoverable from the salary of the erring officers including the head of the department.</td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th><th></th><th></th></tr></thead><tbody><tr><td></td><td>MALFEA SANCE OF ERRING OFFICER S AND ACCOUN TABILITY</td><td></td><td>III. The erring officers shall also be liable for prosecution u/s 198,324,326(f), 326(g),56,59 BNS</td><td></td><td></td></tr><tr><td></td><td></td><td>Ms. Nitya Ramakrishnan, Sr. Adv.</td><td></td><td>Government officers, Ministers, Member of</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>Legislative assembly, Member of Parliament of</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>the Union or the State government shall not</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>make any statement endorsing illegal and</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>unconstitutional penal measures and that if the</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>such statements are made the same shall be a</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>cause for criminal prosecution as well as</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>tortious liability on part of the persons or class</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>of persons who have suffered from such</td><td></td></tr><tr><td></td><td></td><td></td><td></td><td>unconstitutional penal measures.</td><td></td></tr><tr><td></td><td></td><td>Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs.</td><td>Strict Action Against Officials Involved in Demolitions: • Ministers: Ministers who publicly justify or support demolitions immediately following accusations against the victim, whether before or after the demolition, must face strict action. • Municipal Officers: Municipal officers responsible for carrying out such demolitions should be held accountable. • Police Officers: Police officers who order, aid, or assist in the execution of illegal demolitions, especially when linked to accusations of an offence, must also face consequences. Court-Monitored Inquiry: The Court should order a monitored inquiry into demolitions linked to accusations of offences, as highlighted in the Applicant’s IA No.19164/2024, Paragraph 5. Immediate Suspension and Departmental Action: Immediate suspension and departmental action should be taken against all officers involved in executing extrajudicial demolition orders. Criminal Proceedings Under IPC:</td><td></td><td></td></tr></tbody></table><pre>
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</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>• Criminal proceedings under Section 326(g) of the Indian Penal Code (2023) should be initiated against officers involved in extrajudicial demolitions. • This action should not be considered as performed in an official capacity, and the officers should be tried as private individuals for causing the destruction of human dwellings or unlawful arrest of the aggrieved persons.</td></tr><tr><td></td><td></td><td>Mr. M.R. Shamshad, Sr. Adv.</td><td>• While undertaking the process of demolition, the authorities or nominated officers shall not consider demolition of unauthorized/illegal houses by targeting one house or few houses in a particular neighborhood or the town. • In case the Appropriate authority is of the opinion that a house or a set of particular houses are liable to be demolished, to ensure fairness and non-discriminatory act of appropriate authorities, the Municipal authority or Appropriate authority shall undertake the overall exercise of identifying illegal constructions and fix the timeline for removal of the encroachment/demolition. • Under no circumstances, one or two houses shall be demolished in a particular neighborhood until the authority is of the opinion that no other house has illegal construction/encroachment etc. • Violation of this guideline shall attract penal consequences against the erring Officers and the aggrieved person shall be adequately compensated for consequential effect of the violation. In addition to this the violation of this guideline shall also amount to contempt of this Court on the lines of violation of the guidelines in terms of the judgment of this</td></tr></tbody></table><pre>
17

</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>Hon’ble Court in D.K. Basu v. State of W.B., (1997) 1 SCC 416</td></tr><tr><td>8.</td><td>COMPEN SATORY DAMAGE S TO OWNER NI CASE OF MALICIO US OR ILLEGAL DEMOLIT ION COMPEN SATORY DAMAGE S TO OWNER NI CASE OF MALICIO US OR ILLEGAL DEMOLIT ION</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>Damages for Set-Aside Demolition: If the proposed demolition is set aside, the owner is entitled to damages for mental agony, harassment, and litigation costs. Compensatory Damages for Illegal Demolition: • If the demolition is carried out in violation of guidelines or declared illegal by the court, the owner is entitled to compensatory damages, which include: o Cost of reconstruction of the demolished structure o Loss of belongings o Loss of reputation o Rent paid for alternate accommodation • The court may also direct the authorities to rebuild the structure and award punitive damages.</td></tr><tr><td></td><td></td><td>Ms. Nitya Ramakrishnan, Sr. Adv.</td><td>Appointment of Claim Commissioner: • Any judicial officer may be appointed as a Claim Commissioner, empowered to grant compensation or restitution to persons whose buildings or structures have been demolished illegally or arbitrarily by the authority. • Orders for compensation by the Claim Commissioner shall be treated as decrees of a Civil Court and executed accordingly. Personal Liability of Officers: • If an officer willfully or negligently fails to comply with Supreme Court guidelines, causing damage or loss, they will be personally liable for recovery of damages. • Recovery may occur through salary deductions, forfeiture of entitlements, or other lawful means, subject to a proper</td></tr></tbody></table><pre>
18

</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td></td><td>inquiry where the officer will be given an opportunity to be heard by the Claim Commissioner. State Compensation Scheme for Illegal Demolition: • The State must establish a scheme to provide relief, restitution, and compensation to persons whose property has been illegally demolished. • The scheme will cover financial assistance, rehabilitation support, and restoration of property rights for the aggrieved persons and their family members. Documentation Requirements: All actions, steps, and procedures taken by the authority or Claim Commissioner must be fully and accurately documented, including: o Issuance of orders, notices, and details of responsible officers. o Records of inquiry processes, including complaints, responses, findings, and recommendations. o Recovery steps from erring officers, including calculations and methods. o Copies of communications with concerned persons, including notices, final determinations, and acknowledgments of receipt. Online Portal for Documentation: An online portal shall be established for preserving and documenting all actions and communications related to demolition and recovery. This portal will be available for audit, review, or inspection by authorized authorities and will house all records including notices, orders, and communications, ensuring transparency and accessibility.</td></tr><tr><td></td><td></td><td>Mr. Mohd. Nizammudin</td><td>• Provision must be made for immediate interim rehabilitation and/or compensation</td></tr></tbody></table><pre>
19

</pre><table><thead><tr><th>S.No.</th><th>TOPIC/ ISSUE</th><th>COUNSEL’S/ PARTY NAME</th><th>SUMMARY OF SUGGESTIONS</th></tr></thead><tbody><tr><td></td><td></td><td>Pasha & Ms. Rashmi Singh, Advs.</td><td>to persons who are found prima facie to have been victims of punitive extra-judicial demolitions; • Payment of compensation for loss of movable/immovable property damaged or destroyed and restoration of the underlying land to persons found upon final adjudication to have been victims of punitive extra-judicial demolitions.</td></tr><tr><td>9.</td><td>DISSEMI NATION & COMPLIA NCES OF THE GUIDELI NES</td><td>Mr. C.U. Singh, Sr. Adv.</td><td>The guidelines should be translated in local language and widely disseminated including publication in local newspapers and should also be uploaded on the official website of the municipal authorities.</td></tr><tr><td></td><td></td><td>Mr. Mohd. Nizammudin Pasha & Ms. Rashmi Singh, Advs.</td><td>Nodal officers must be appointed by the State Governments to perform the following functions: i) to ensure strict compliance of guidelines issued by this Hon’ble Court; ii) to provide information to owners as to legal provisions under which their dwellings etc are illegal, legal remedies available etc.; The Nodal Officers so appointed shall be made personally liable in case of violation or non- compliance of guidelines issued by this Hon’ble Court.</td></tr><tr><td></td><td></td><td>Mr. M.R. Shamshad, Sr. Adv.</td><td>Appropriate authorities/Municipal authorities shall nominate group of officers who shall be answerable to courts/administration as and when the issue relating to demolition of houses, structure, shops etc. are questioned in courts of law or any other forum. The said Nominated Officer shall report to the Divisional Commissioner / equivalent officer thereto.</td></tr></tbody></table><pre>
11. Shri Tushar Mehta, learned SG, has also given his
suggestions. The same are reproduced herein below:
20

“ In view of the legal position exposited above,
the following suggestions are put forth by the
Ld. Solicitor General on behalf of the
Respondents:
1. The specific requirements of notice as 
provided in the relevant municipal 
law must be strictly followed .
Further,
the notice must clearly state the alleged
violation for which demolition action is
proposed. Where such notice period is
not specifically provided, and the case
does not fall within the exception noted
in paras 2 and 3 below, a reasonable
notice period of one week to 10 days may
be read into the relevant statute. 
2. Exception: It is also pertinent to note 
that this Hon'ble Court has itself, in 
Order dt. 17.09.2024, carved an 
exception in case of “unauthorised 
structure[s] in any public place such 
as a road, street, footpath, abutting 
railway line or any river body or water 
bodies and also to cases where there 
is an order of demolition made by a 
Court of law.” Therefore, it is submitted
that any guidelines/SoP framed by this
Hon'ble Court may not provide for notice
in such cases, in case the relevant
municipal law does not specifically
provide for the same. Every municipal
law also provides for situations where
demolitions may be carried out without
notice. For instance, Section 26C of the
21

Uttar Pradesh Urban Planning and
Development Act, 1973 states:
“Section 26-C. Authority may 
without notice remove 
anything erected or deposited 
in contraventions of Act .- 
The Authority or an officer 
authorised by it in this behalf may, 
without notice, cause to be 
removed- 
(a) Any wall, fence, rail, post. 
Step, booth or other structure 
whether fixed or movable and 
whether of a permanent or 
temporary nature or any fixture 
which shall be erected, or set in 
or upon or over any street or 
upon or over any open channel, 
drain. well or tank contrary to 
the provisions of this Act. 
(b) Any stall, chair, bench, box, 
ladder, bale, board or shelf of 
any other thing whatever 
placed, deposited, projected, 
attached or suspended in, 
upon, from or to any place in 
contravention of this Act .” 
3. It is submitted that a perusal of the
Chart of demolitions submitted by the
Petitioners (at pp. 28 – 32 of the
Compilation of Suggestions submitted
by the Ld. Nodal Senior Counsel), itself
22

notes that the demolitions at S. nos. 3,
4, 5, 6, 7, 10, 16, 22) were all of
structures that amounted to illegal
encroachment in public places, which
itself has been carved out of this Hon'ble
Court’s Order dt. 17.09.2024.
Therefore, it is submitted that the 
SoP framed by this Hon'ble Court may 
not allow for notice in case of 
encroachment on public land, if the 
relevant municipal law allows for such 
demolition without notice. At best, 
the illegal encroachers on the said 
public land/public place, may be 
granted 48 hours to vacate such 
encroachment. This Hon'ble Court in 
the Delhi Ceiling cases (MC Mehta v. 
Union of India), has also endorsed a 48 
hour notice period in certain cases.
4. Manner of Service of Notice: It is
submitted that most municipal laws
provide for the manner of service of
notice. For instance, Section 43 of the
Uttar Pradesh Urban Planning and
Development Act, 1973 provides for the
service of notice, either to be handed
over in person, or if such person cannot
be found, then by affixation on some
conspicuous part of his last known place
of residence or business or on some
conspicuous part of land or building to
which it relates, or by registered post. It 
is therefore submitted that (i) the 
manner of service specified in the 
23

relevant municipal law must be 
strictly followed; (ii) if the relevant 
statute is silent on the issue of service 
of notice, then it must be sent 
through registered post, and if such 
post is returned unserved/refused, 
then it must be affixed on some 
conspicuous part of the building/ 
property against which the action is 
proposed; and (iii) in all cases, where 
practicable, the relevant municipal 
authority must also upload such 
proposed action on its portal.
5. Procedure to be followed after service 
of notice: It is submitted that most
municipal laws have a specific procedure
to be followed after service of notice –
such as an opportunity for hearing,
before a final demolition order is passed.
Further, the affected party in most cases
also has a right to appeal to the
Appellant Authority designated by the
statute. It is submitted that the 
procedure for hearing and appeal as 
provided in the relevant statute must 
be strictly adhered to. Where there is 
no such procedure prescribed (and the 
case does not fall within the 
exceptions outlined in paras 2 and 3 
above where demolition without 
notice is authorised), natural justice 
requirements of a hearing must be 
read into the statute – with the notice 
fixing a reasonable time of a week to 
24

appear before the concerned 
authority for the personal hearing. 
6. Final order of demolition: The final 
order of demolition should be passed 
after hearing the noticee (unless the 
case falls within the exception 
outlined in paras 2 – 3 above) and 
must specify clearly the violations on 
account of which it is being passed. In
most municipal laws, the statute itself
provides the noticee himself the
opportunity to undertake the
demolition/rectify the violations prior to
demolition being undertaken by the
authority. Where the law does not
provide such opportunity, reasonable
period of 48 hours – 72 hours may be
read into the statute to allow the noticee
to either rectify/demolish or vacate the
property before the Authority
undertakes demolition. However, it is 
submitted that any further period to 
challenge such action may not be read 
into the statute if such period is not 
provided. This is because any writ
challenges to demolition action are in
any event treated as urgent by the
Constitutional Courts, and 72 hours is
sufficient time for the aggrieved persons
to approach the courts.
7. It is again reiterated that at the first 
instance, the municipal laws must be 
strictly followed qua the requirements 
25

of notice, service of notice, procedure 
of hearing, and final order of 
demolition. The suggestions above are
merely meant to supplement the
municipal law where the same is 
warranted on account of lacunae in the 
Furthermore, it is 
said laws.
submitted that such guidelines should 
not allow for illegal encroachments on 
public places, waterways etc to 
continue with impunity when the 
relevant statute itself does not 
”
provide for notice in such cases.

12. The scope of the present petitions is limited. The question
that will have to be considered is, as to whether the properties of
the persons, who are accused of committing certain crimes or for
that matter even convicted for commission of criminal offences,
can be demolished without following the due process of law or
not?
13. For considering the said question, we will be required to
consider the principle of the rule of law, which is the very
foundation of democratic governance. We will also have to
consider the rights guaranteed under the Constitution that
26

provide protection to individuals from arbitrary state action. We
will also have to consider in this case the issue with regard to
fairness in the criminal justice system, which mandates that the
legal process should not prejudge the guilt of the accused. We
will also have to touch upon the concept of separation of powers
and the doctrine of public trust in respect of government officials
holding their offices.
II. RULE OF LAW 
14. The rule of law has been succinctly conceptualized by AV
2
Dicey , which can be summarized into three postulates:

(1) “no man is punishable or can be lawfully
made to suffer in body or goods except for
a distinct breach of law established in the
ordinary legal manner before the ordinary
courts of the land”, as contrasted to the
“the exercise by persons in authority of
wide, arbitrary, or discretionary powers of
constraint”;

(2) “no man is above the law”, and that “every
man, whatever be his rank or condition, is

2
AV Dicey, Introduction to the Study of the Law of the Constitution, Macmilan and Co. Ltd.
(1952), pp. 183-205.
27

subject to the ordinary law of the realm
and amenable to the jurisdiction of the
ordinary tribunals”; and

(3) “the predominance of the legal spirit” or
that “the general principles of the
constitution… are with us the result of
judicial decisions determining the rights of
private persons in particular cases
brought before the courts”.

15. There can be no doubt with the principle that, no one is
above the law of the land; that everybody is equal before the law.
16. There can also be no doubt with the principle that, under
the constitutional framework there is no scope for arbitrariness
by officials, and that no one can be punished or made to suffer
in body or goods except for a distinct breach of law established
in the ordinary legal manner before the ordinary courts of the
land. It is only the courts which are independent adjudicators of
the rights of the parties and under the constitutional framework
it is only they which can impose punishment.
28

</pre><table><thead><tr><th>17. Though the basic principle, as conceptualized by Dicey,</th><th></th><th></th></tr></thead><tbody><tr><td>largely remains the same, the concept of ‘rule of law’ has been</td><td></td><td></td></tr><tr><td>discussed subsequently by various scholars. It has been</td><td></td><td></td></tr><tr><td>described to mean that “government officials and citizens are</td><td></td><td></td></tr><tr><td>bound by and have to abide by the law” and that there “must be</td><td></td><td></td></tr><tr><td>mechanisms or institutions that enforce the legal rules if they are</td><td></td><td></td></tr><tr><td>breached”3. It ensures that “courts should be available to enforce</td><td></td><td></td></tr><tr><td>the law and should employ fair procedures”4. The law must be</td><td></td><td></td></tr><tr><td>just and fair, and “protect the human rights and dignity of all</td><td></td><td></td></tr><tr><td>members of society”5. Above all, “the essential purpose of the rule</td><td></td><td></td></tr><tr><td>of law is to prevent the abuse of power”6. Lord Bingham sets out</td><td></td><td></td></tr><tr><td>as one of the facets of the rule of the law, the following7:</td><td></td><td></td></tr><tr><td></td><td>“(4) Ministers and public officers at all</td><td></td></tr><tr><td></td><td>levels must exercise the powers conferred</td><td></td></tr><tr><td></td><td>on them in good faith, fairly, for the</td><td></td></tr></tbody></table><table><thead><tr><th>3</th><th>Tamanaha, Brian Z. "The history and elements of the rule of law." Singapore Journal of</th><th></th></tr></thead><tbody><tr><td>Legal Studies (2012): 232-247.</td><td></td><td></td></tr><tr><td>4</td><td>Fallon Jr, Richard H. "The rule of law as a concept in constitutional discourse." Colum. L.</td><td></td></tr><tr><td>Rev. 97 (1997): 1.</td><td></td><td></td></tr><tr><td>5</td><td>Stein, Robert. "Rule of law: what does it mean." Minn. J. Int'l L. 18 (2009): 293.</td><td></td></tr></tbody></table><pre>
6
Raitio, Juha. "The Concept of the Rule of Law - Just a Political Ideal, or a Binding
Principle?." Giornale di Storia Costituzionale, 45, 2023, pp. 37-46. HeinOnline.
7
Bingham, Tom. The Rule of Law, p.60.
29

</pre><table><thead><tr><th></th><th>purpose for which the powers were</th><th></th></tr></thead><tbody><tr><td></td><td>conferred, without exceeding the limits of</td><td></td></tr><tr><td></td><td>such powers and not unreasonably.”</td><td></td></tr><tr><td></td><td></td><td></td></tr><tr><td>18. The rule of law has also been described as “an umbrella</td><td></td><td></td></tr><tr><td>concept for a number of legal and institutional instruments to</td><td></td><td></td></tr><tr><td>protect citizens against the power of the state”8. Moreover, “Rule</td><td></td><td></td></tr><tr><td>of law is integral to and necessary for democracy and good</td><td></td><td></td></tr><tr><td>governance”, because “attempts to democratize without a</td><td></td><td></td></tr><tr><td>functional legal system in place have resulted in social disorder”9.</td><td></td><td></td></tr><tr><td>19. It can thus be seen that the law must be just and fair, and</td><td></td><td></td></tr><tr><td>also protect the human rights and dignity of all members of</td><td></td><td></td></tr><tr><td>society. At the same time, the essential purpose of the rule of law</td><td></td><td></td></tr><tr><td>is to prevent the abuse of power. The rule of law is an umbrella</td><td></td><td></td></tr><tr><td>concept to protect citizens against the power of the State. It is</td><td></td><td></td></tr><tr><td>integral to and necessary for democracy and good governance.</td><td></td><td></td></tr></tbody></table><table><thead><tr><th>8</th><th>Bedner, Adriaan. "An elementary approach to the rule of law." Hague Journal on the rule</th><th></th><th></th></tr></thead><tbody><tr><td>of law 2.1 (2010): 48-74.</td><td></td><td></td><td></td></tr><tr><td>9</td><td>Peerenboom, Randall. "Human rights and rule of law: What's the relationship." Geo. J.</td><td></td><td></td></tr><tr><td>Int'l L. 36 (2004): 809.</td><td></td><td></td><td></td></tr></tbody></table><pre>
30

20. While we consider this aspect, we are of the view that the
concept of rule of law needs to be considered broadly. The legal
sanctity of practices in the past such as slavery in the United
States, apartheid in South Africa, or untouchability in India
would have to be considered as antitheses to the rule of law apart
from being a serious affront to human dignity.
21. In this respect, we may refer to the work of various scholars
in the field. Thus, “for the rule of law to measure up to the
requirements of a legitimate constitutional democracy, it must be
10
more than the rule of law in the narrow sense” . In the modern
constitutional framework, “the rule of law would seem to need
democratic accountability, procedural fairness, and even
11
perhaps substantive grounding” , such as in the provisions of
the Constitution. In other words, “the rule of law means the

</pre><table><thead><tr><th>10</th><th>Rosenfeld, Michel. "The rule of law and the legitimacy of constitutional democracy." S.</th><th></th></tr></thead><tbody><tr><td>Cal. L. Rev. 74 (2000): 1307.</td><td></td><td></td></tr></tbody></table><pre>
11
Ibid
31

regulative role of certain institutions and their associated legal
12
and judicial practices” . It has been beautifully observed:
“That is the law. And no Spartan, subject or
citizen, man or woman, slave or king, is
above the law. Where-ever law ends, tyranny
13
begins” .
</pre><table><tbody><tr><td></td><td></td><td></td></tr><tr><td>22. This Court in the case of Smt. Indira Nehru Gandhi v.</td><td></td><td></td></tr><tr><td>Shri Raj Narain14, has held the rule of law to be part of the basic</td><td></td><td></td></tr><tr><td>structure of the Constitution. It will be apt to refer to the following</td><td></td><td></td></tr><tr><td>observations of Justice Mathew:</td><td></td><td></td></tr><tr><td></td><td>“341…I cannot conceive of rule of law as a</td><td></td></tr><tr><td></td><td>twinkling star up above the Constitution.</td><td></td></tr><tr><td></td><td>To be a basic structure, it must be a</td><td></td></tr><tr><td></td><td>terrestrial concept having its habitat</td><td></td></tr><tr><td></td><td>within the four corners of the</td><td></td></tr><tr><td></td><td>Constitution. The provisions of the</td><td></td></tr><tr><td></td><td>Constitution were enacted with a view to</td><td></td></tr><tr><td></td><td>ensure the rule of law...”</td><td></td></tr><tr><td></td><td></td><td></td></tr></tbody></table><pre>

12
John Rawls, Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2021).
13
 Id. at 306.
14
(1976) 2 SCR 347
32

</pre><table><thead><tr><th>23. The relevance of the rule of law in our constitutional system</th><th></th><th></th></tr></thead><tbody><tr><td>has been considered by this Court in various judgments. In the</td><td></td><td></td></tr><tr><td>case of National Human Rights Commission v. State of</td><td></td><td></td></tr><tr><td>Arunachal Pradesh and another15, this Court was considering</td><td></td><td></td></tr><tr><td>the plight of Chakma community in the State of Arunachal</td><td></td><td></td></tr><tr><td>Pradesh. This Court observed thus:</td><td></td><td></td></tr><tr><td></td><td>“No State Government worth the name</td><td></td></tr><tr><td></td><td>can tolerate such threats by one group of</td><td></td></tr><tr><td></td><td>person to another group of persons; it is</td><td></td></tr><tr><td></td><td>duty bound to protect the threatened</td><td></td></tr><tr><td></td><td>group from such assaults and if it fails to</td><td></td></tr><tr><td></td><td>do so, it will fail to perform its</td><td></td></tr><tr><td></td><td>Constitutional as well as statutory</td><td></td></tr><tr><td></td><td>obligations. Those giving such threats</td><td></td></tr><tr><td></td><td>would be liable to be dealt with in</td><td></td></tr><tr><td></td><td>accordance with law. The State</td><td></td></tr><tr><td></td><td>Government must act impartially and</td><td></td></tr><tr><td></td><td>carry out its legal obligations to safeguard</td><td></td></tr><tr><td></td><td>the life, health and well-being of</td><td></td></tr><tr><td></td><td>Chakmas residing in the State without</td><td></td></tr><tr><td></td><td>being inhibited by local politics.”</td><td></td></tr><tr><td></td><td></td><td></td></tr><tr><td>24. This Court in unequivocal terms held that no State</td><td></td><td></td></tr><tr><td>Government worth the name can tolerate threats by one group of</td><td></td><td></td></tr></tbody></table><pre>

15
1996 INSC 38=(1996) 1 SCC 742
33

person to another group of persons. It has been held that the
State is duty bound to protect the group from such assaults and
if it fails to do so, it will fail to perform its Constitutional as well
as statutory obligations. It has been held that the State
Government must act impartially and carry out its legal
obligations to safeguard the life, health and well-being of
Chakmas residing in the State without being inhibited by local
politics.
25. In Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of 
16
India & Ors. , while dealing with the constitutionality of the
Aadhaar Act, 2016, this Court held:
“As the interpreter of the Constitution, it is
the duty of this Court to be vigilant against
State action that threatens to upset the fine
balance between the power of the state and
rights of citizens and to safeguard the
liberties that inhere in our citizens.”

16
[2018] 8 S.C.R. 1
34

26. In his dissenting opinion, Dr. Justice D.Y. Chandrachud (as
His Lordship then was) described the principle of the rule of law
as under:
“The rule of law is the cornerstone of modern
democratic societies and protects the
foundational values of a democracy. When
the rule of law is interpreted as a principle of
constitutionalism, it assumes a division of
governmental powers or functions that
inhibits the exercise of arbitrary State power.
It also assumes the generality of law: the
individual’s protection from arbitrary power
consists in the fact that her personal dealings
with the State are regulated by general rules,
binding on private citizens and public
officials alike.”
27. This sentiment was echoed in Rojer Mathew v. South 
17
Indian Bank Ltd. & Ors. , where this Court held:
“If Rule of law is absent, there is no
accountability, there is abuse of power and
corruption. When the Rule of law disappears,
we are ruled not by laws but by the
”
idiosyncrasies and whims of those in power.

17
[2019] 16 S.C.R. 1
35

28. Again, earlier this year, in Bilkis Yakub Rasool v. Union 
18
of India & Others , the concept of the rule of law was discussed
in detail. It was held:
“Rule of law means wherever and whenever
the State fails to perform its duties, the Court
would step in to ensure that the Rule of law
prevails over the abuse of the process of law.
Such abuse may result from, inter alia,
inaction or even arbitrary action of protecting
the true offenders or failure by different
authorities in discharging statutory or other
obligations in consonance with the
procedural and penal statutes. Breach of the
Rule of law, amounts to negation of equality
under Article 14 of the Constitution.
The concept of Rule of law is closely
intertwined with adjudication by courts of
law and also with the consequences of
decisions taken by courts. Therefore, the
judiciary has to carry out its obligations
effectively and true to the spirit with which it
is sacredly entrusted the task and always in
favour of Rule of law. There can be no Rule of
law if there is no equality before the law; and
Rule of law and equality before the law would
be empty words if their violation is not a
matter of judicial scrutiny or judicial review
and relief and all these features would lose
their significance if the courts don’t step in to

18
[2024] 1 S.C.R. 743
36

enforce the Rule of law. Thus, the judiciary is
the guardian of the Rule of law and the
central pillar of a democratic State.
Therefore, the judiciary has to perform its
duties and function effectively and remain
true to the spirit with which they are sacredly
entrusted to it.
Further, in a democracy where Rule of law is
its essence, it has to be preserved and
enforced particularly by courts of law.
Compassion and sympathy have no role to
play where Rule of law is required to be
enforced. If the Rule of law has to be
preserved as the essence of democracy, it is
the duty of the courts to enforce the same
without fear or favour, affection or ill-will.”
29. It is thus well settled that the rule of law has been described
as a safeguard against the arbitrary use of the State power. It
ensures that the actions of the Government and its authorities
are governed by established legal principles, rather than
arbitrary discretion. Whenever the citizens in the form of mobs
have broken the law to vandalize or to declare threats, the Court
has cast an obligation on the State to prevent such threats or
assaults. This obligation underscores the State’s responsibility to
37

maintain law and order and protect citizens from unlawful
actions that undermine the rule of law itself.
30. It is not necessary to state that failure to uphold these
obligations can erode public confidence in the justice system,
leading to an environment where the rule of law is compromised
by lawlessness. Ensuring the preservation of the principle of rule
of law and the protection of the civil rights and liberties of citizens
is essential for protecting the constitutional democracy.
31. The concept of the rule of law is not an abstract principle
but is reflected in the substantive content of various legal
domains. In this regard, it would be apt to refer to the following
articulation of the rule of law:
“The rule of law provides a framework and
value system in which institutions,
principles, and rules are implemented to
‘reign ( sic ) in the arbitrary exercise of state
power and to prevent the abuse of power, to
ensure predictability and stability, to make
sure that individuals know that their lives,
their liberty, their property will not be taken
away from them arbitrarily and abusively’. It
38

is from this core of understanding that
constitutional law, criminal law, criminal
procedure, due process, equal protection,
international law, the laws of war, and
human rights law find their moral, ethical,
philosophical, and political justification in
19
controlling the actions of executive power” .
(emphasis added)
32. It has been emphasized that the rule of law provides a
framework and value system to ‘rein in the arbitrary exercise of
state power and to prevent the abuse of power, to ensure
predictability and stability, to make sure that individuals know
that their lives, their liberty, their property will not be taken away
from them arbitrarily and abusively’.
 
33. It can thus be said that the processes enshrined in
constitutional law, criminal law and procedure are facets of the
rule of law and thus serve to regulate the exercise of executive
power.

19
Arthur H. Garrison, “The Rule of Law and the Rise of Control of Executive Power”, 18(2)
Texas Review of Law & Politics 303-355 (2014).
39

III. SEPARATION OF POWERS 
34. Another important aspect that needs to be addressed in the
present matter is with regard to the doctrine of separation of
powers, as envisaged in our Constitution. Our Constitution has
earmarked separate areas for exercise of powers and for
discharge of duties to the three organs of the democracy, viz., the
Executive, the Legislature, and the Judiciary. The Legislature is
empowered to enact the laws within the framework of the
Constitution; the Executive is entrusted with the powers and is
expected to discharge its duties in accordance with the provisions
of the Constitution and the laws as enacted by the competent
Legislature. The adjudicatory function is entrusted to the
Judiciary. In several judgments, this Court has reiterated the
principle governing the separation of powers.
40

35. In the case of In Rai Sahib Ram Jawaya Kapur and 
20
others v. State of Punjab , a Constitution Bench of this Court
observed thus:
</pre><table><thead><tr><th></th><th>“It may not be possible to frame an exhaustive</th><th></th></tr></thead><tbody><tr><td></td><td>definition of what executive function means</td><td></td></tr><tr><td></td><td>and implies. Ordinarily the executive power</td><td></td></tr><tr><td></td><td>connotes the residue of governmental</td><td></td></tr><tr><td></td><td>functions that remain after legislative and</td><td></td></tr><tr><td></td><td>judicial functions are taken away. The Indian</td><td></td></tr><tr><td></td><td>Constitution has not indeed recognised the</td><td></td></tr><tr><td></td><td>doctrine of separation of powers in its</td><td></td></tr><tr><td></td><td>absolute rigidity but the functions of the</td><td></td></tr><tr><td></td><td>different parts or branches of the Government</td><td></td></tr><tr><td></td><td>have been sufficiently differentiated and</td><td></td></tr><tr><td></td><td>consequently it can very well be said that our</td><td></td></tr><tr><td></td><td>Constitution does not contemplate</td><td></td></tr><tr><td></td><td>assumption, by one organ or part of the State,</td><td></td></tr><tr><td></td><td>of functions that essentially belong to</td><td></td></tr><tr><td></td><td>another.”</td><td></td></tr></tbody></table><pre>
36. It could thus be seen that the Constitution Bench of this
Court has held that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions that
essentially belong to another.

20
AIR 1955 SC 549
41

</pre><table><thead><tr><th>37. In the case of Indira Nehru Gandhi v. Raj Narain and</th><th></th><th></th></tr></thead><tbody><tr><td>another (supra) reiterating the position that the principle of</td><td></td><td></td></tr><tr><td>separation of power is a part of the basic structure, a</td><td></td><td></td></tr><tr><td>Constitution Bench of this Court held thus:</td><td></td><td></td></tr><tr><td></td><td>“The political usefulness of the doctrine of</td><td></td></tr><tr><td></td><td>separation of powers is now widely recognized</td><td></td></tr><tr><td></td><td>though a satisfactory definition of the three</td><td></td></tr><tr><td></td><td>functions is difficult to evolve. But the</td><td></td></tr><tr><td></td><td>function of the Parliament is to make laws,</td><td></td></tr><tr><td></td><td>not to decide cases. The British Parliament in</td><td></td></tr><tr><td></td><td>its unquestioned supremacy could enact a</td><td></td></tr><tr><td></td><td>legislation for the settlement of a dispute or it</td><td></td></tr><tr><td></td><td>could, with impunity, legislate for the boiling</td><td></td></tr><tr><td></td><td>of the Bishop of Rochester’s cook. The Indian</td><td></td></tr><tr><td></td><td>Parliament will not direct that an accused in</td><td></td></tr><tr><td></td><td>a pending case shall stand acquitted or that a</td><td></td></tr><tr><td></td><td>suit shall stand decreed…</td><td></td></tr><tr><td></td><td>The reason of this restraint is not that the</td><td></td></tr><tr><td></td><td>Indian Constitution recognizes any rigid</td><td></td></tr><tr><td></td><td>separation of powers. Plainly, it does not. The</td><td></td></tr><tr><td></td><td>reason is that the concentration of powers in</td><td></td></tr><tr><td></td><td>any one organ may, by upsetting that fine</td><td></td></tr><tr><td></td><td>balance between the three organs, destroy the</td><td></td></tr><tr><td></td><td>fundamental premises of a democratic</td><td></td></tr><tr><td></td><td>government to which we are pledged.”</td><td></td></tr></tbody></table><pre>
 
38. The Constitution Bench of this Court though admits that
the Indian Constitution does not recognize any rigid separation
42

</pre><table><thead><tr><th>of powers, yet holds that, by upsetting the fine balance between</th><th></th><th></th></tr></thead><tbody><tr><td>the three organs, the fundamental premises of a democratic</td><td></td><td></td></tr><tr><td>government to which we have pledged, will be destroyed. The</td><td></td><td></td></tr><tr><td>Court observed that the Indian Parliament will not direct that an</td><td></td><td></td></tr><tr><td>accused in a pending case shall stand acquitted or that a suit</td><td></td><td></td></tr><tr><td>shall stand decreed.</td><td></td><td></td></tr><tr><td>39. A Nine-Judge Bench of this Court in the case of I.R. Coelho</td><td></td><td></td></tr><tr><td>(Dead) by LRs. v. State of T.N.21 recognized the doctrine of the</td><td></td><td></td></tr><tr><td>separation of powers as a system of “check and balance”. The</td><td></td><td></td></tr><tr><td>Court observed that the separation of powers leads to “prevention</td><td></td><td></td></tr><tr><td>of tyranny”. The Court while emphasizing on the</td><td></td><td></td></tr><tr><td>interconnectedness between judicial review, rule of law, and the</td><td></td><td></td></tr><tr><td>separation of power observed thus:</td><td></td><td></td></tr><tr><td></td><td>“Equality, rule of law, judicial review and</td><td></td></tr><tr><td></td><td>separation of powers form parts of the basic</td><td></td></tr><tr><td></td><td>structure of the Constitution. Each of these</td><td></td></tr><tr><td></td><td>concepts are intimately connected. There can</td><td></td></tr><tr><td></td><td>be no rule of law, if there is no equality before</td><td></td></tr><tr><td></td><td>the law. These would be meaningless if the</td><td></td></tr></tbody></table><pre>

21
(2007) 2 SCC 1
43

violation was not subject to the judicial
review. All these would be redundant if the
legislative, executive and judicial powers are
vested in one organ. Therefore, the duty to
decide whether the limits have been
transgressed has been placed on the
 
judiciary.
Judicial review is justified by combination of
“the principle of separation of powers, rule of
law, the principle of constitutionality and the
reach of judicial review” ( Democracy Through 
Law by Lord Styen, p. 131).”

40. This Court reiterated that equality, rule of law, judicial
review and separation of powers form parts of the basic structure
of the Constitution. Each of these concepts are intimately
connected. It has been held that there can be no rule of law if
there is no equality before the law. It observed that rights would
be meaningless if the violation was not subject to the judicial
review. The Court records the danger of legislative, executive and
judicial powers being vested in one organ and, therefore, held
that the duty to decide whether the limits have been transgressed
has been placed on the judiciary.
44

</pre><table><thead><tr><th>41. While considering the importance of the doctrine of</th><th></th><th></th></tr></thead><tbody><tr><td>separation of powers in today’s world of positive rights and</td><td></td><td></td></tr><tr><td>justifiable social and economic entitlements, this Court in the</td><td></td><td></td></tr><tr><td>case of State of U.P. and others v. Jeet S. Bisht and another22</td><td></td><td></td></tr><tr><td>observed thus:</td><td></td><td></td></tr><tr><td></td><td>“If we notice the evolution of separation of</td><td></td></tr><tr><td></td><td>powers doctrine, traditionally the checks and</td><td></td></tr><tr><td></td><td>balances dimension was only associated with</td><td></td></tr><tr><td></td><td>governmental excesses and violations. But in</td><td></td></tr><tr><td></td><td>today’s world of positive rights and justifiable</td><td></td></tr><tr><td></td><td>social and economic entitlements, hybrid</td><td></td></tr><tr><td></td><td>administrative bodies, private functionaries</td><td></td></tr><tr><td></td><td>discharging public functions, we have to</td><td></td></tr><tr><td></td><td>perform the oversight function with more</td><td></td></tr><tr><td></td><td>urgency and enlarge the field of checks and</td><td></td></tr><tr><td></td><td>balances to include governmental inaction.</td><td></td></tr><tr><td></td><td>Otherwise we envisage the country getting</td><td></td></tr><tr><td></td><td>transformed into a state of repose. Social</td><td></td></tr><tr><td></td><td>engineering as well as institutional</td><td></td></tr><tr><td></td><td>engineering therefore forms part of this</td><td></td></tr><tr><td></td><td>obligation.”</td><td></td></tr><tr><td></td><td>(emphasis added)</td><td></td></tr><tr><td></td><td></td><td></td></tr></tbody></table><pre>

22
(2007) 6 SCC 586
45

</pre><table><thead><tr><th>42. While expanding the contours of the doctrine of separation</th><th></th><th></th></tr></thead><tbody><tr><td>of powers, the Constitution Bench of this Court in the case of</td><td></td><td></td></tr><tr><td>Kalpana Mehta and others v. Union of India and others,23</td><td></td><td></td></tr><tr><td>observed thus:</td><td></td><td></td></tr><tr><td></td><td>“… the concept of constitutional limitation is</td><td></td></tr><tr><td></td><td>a facet of the doctrine of separation of powers.</td><td></td></tr><tr><td></td><td>At this stage, we may clearly state that there</td><td></td></tr><tr><td></td><td>can really be no straitjacket approach in the</td><td></td></tr><tr><td></td><td>sphere of separation of powers when issues</td><td></td></tr><tr><td></td><td>involve democracy, the essential morality that</td><td></td></tr><tr><td></td><td>flows from the Constitution, interest of the</td><td></td></tr><tr><td></td><td>citizens in certain spheres like environment,</td><td></td></tr><tr><td></td><td>sustenance of social interest, etc. and</td><td></td></tr><tr><td></td><td>empowering the populace with the right to</td><td></td></tr><tr><td></td><td>information or right to know in matters</td><td></td></tr><tr><td></td><td>relating to candidates contesting election.</td><td></td></tr><tr><td></td><td>There can be many an example where this</td><td></td></tr><tr><td></td><td>Court has issued directions to the executive</td><td></td></tr><tr><td></td><td>and also formulated guidelines for facilitation</td><td></td></tr><tr><td></td><td>and in furtherance of fundamental rights and</td><td></td></tr><tr><td></td><td>sometimes for the actualisation and</td><td></td></tr><tr><td></td><td>fructification of statutory rights.”</td><td></td></tr><tr><td></td><td></td><td></td></tr></tbody></table><pre>
43. This Court, therefore, observed that this Court can issue a
direction to the executive and also formulate guidelines for

23
(2018) 7 SCC 1
46

facilitation and in furtherance of fundamental rights and
sometimes for the actualization and fructification of statutory
rights.
44. 
The aforesaid decision would lead to a question, as to
whether when the adjudicatory functions are entrusted to the
judiciary, can the officers of the State Government take upon
themselves the adjudicatory function and without a person
undergoing a trial be inflicted with a punishment of demolition of
his properties. In our view, such a situation would be wholly
impermissible in our constitutional set up. The executive cannot
replace the judiciary in performing its core functions.
IV. DOCTRINE OF PUBLIC TRUST AND PUBLIC 
ACCOUNTABILITY 
45. When we are considering the issue with regard to ‘Rule of
Law’ and ‘Separation of Powers’, we will also have to take into
effect the matters where the executive transgresses its power and
acts as a Judge and demolishes the structures of the persons
47

without following the procedure prescribed by law. Though the
doctrine of public trust has been largely applied by this Court in
environmental matters, it cannot be disputed that the executive
exercises its powers as a ‘trustee’ of the citizens. Therefore, the
executive actions must be consistent with maintaining public
trust.
46. Conversely, when the executive acts in breach of the
principles of ‘rule of law’ and ‘separation of powers’, the doctrine
of public trust and accountability would come into play. This
Court in the case of Delhi Airtech Services Private Limited 
24
and another v. State of Uttar Pradesh and another
observed thus:
“ 213. These authorities are
instrumentalities of the State and the
officers are empowered to exercise the
power on behalf of the State. Such exercise
of power attains greater significance when
it arises from the statutory provisions. The
level of expectation of timely and just

24
(2011) 9 SCC 354
48

performance of duty is higher, as
compared to the cases where the power is
executively exercised in discharge of its
regular business. Thus, all administrative
norms and principles of fair performance
are applicable to them with equal force, as
they are to the government department, if
not with a greater rigour. The well-
established precepts of public trust and
public accountability are fully applicable
to the functions which emerge from the
public servants or even the persons
holding public office.
214. In State of Bihar v. Subhash 
Singh [(1997) 4 SCC 430] , this Court, in
exercise of the powers of judicial review,
stated that the doctrine of “full faith and
credit” applies to the acts done by the
officers in the hierarchy of the State. They
have to faithfully discharge their duties to
elongate public purpose.
215. The concept of public accountability
and performance of functions takes in its
ambit, proper and timely action in
accordance with law. Public duty and
public obligation both are essentials of
good administration whether by the State
or its instrumentalities. In Centre for 
Public Interest Litigation v. Union of 
India [(2005) 8 SCC 202 : (2006) 1 SCC
(Cri) 23] , this Court declared the dictum
that State actions causing loss are
49

actionable under public law. This is a
result of innovation, a new tool with the
courts which are the protectors of civil
liberties of the citizens and would ensure
protection against devastating results of
State action. The principles of public
accountability and transparency in State
action are applicable to cases of executive
or statutory exercise of power, besides
requiring that such actions also not lack
bona fides. All these principles enunciated
by the Court over a passage of time clearly
mandate that public officers are
answerable for both their inaction and
irresponsible actions. If what ought to
have been done is not done, responsibility
should be fixed on the erring officers; then
alone, the real public purpose of an
answerable administration would be
satisfied.
216. The doctrine of “full faith and credit”
applies to the acts done by the officers.
There is a presumptive evidence of
regularity in official acts, done or
performed, and there should be faithful
discharge of duties to elongate public
purpose in accordance with the procedure
prescribed. Avoidance and delay in
decision-making process in government
hierarchy is a matter of growing concern.
Sometimes delayed decisions can cause
prejudice to the rights of the parties
50

besides there being violation of the
statutory rule.
217. This Court had occasion to express
its concern in different cases from time to
time in relation to such matters. In State 
of A.P. v. Food Corporation of India [(2004)
13 SCC 53 : 2006 SCC (L&S) 873] , this
Court observed that it is a known fact that
in transactions of government business,
no one would own personal responsibility
and decisions would be leisurely taken at
various levels.
218. Principles of public accountability
are applicable to such officers/officials
with all their rigour. Greater the power to
decide, higher is the responsibility to be
just and fair. The dimensions of
administrative law permit judicial
intervention in decisions, though of
administrative nature, which are ex facie
discriminatory. The adverse impact of lack
of probity in discharge of public duties can
result in varied defects, not only in the
decision-making process but in the final
decision as well. Every officer in the
hierarchy of the State, by virtue of his
being “public officer” or “public servant”, is
accountable for his decisions to the public
as well as to the State. This concept of dual
responsibility should be applied with its
rigours in the larger public interest and for
proper governance.”
51

47. This Court held that the well-established precepts of public
trust and public accountability are fully applicable to the
functions which emerge from the public servants or even the
persons holding public office. It has been held that the doctrine
of “full faith and credit” applies to the acts done by the officers in
the hierarchy of the State. They have to faithfully discharge their
duties to elongate public purpose.
48. This Court referring to its earlier decision in the case of
Centre for Public Interest Litigation and another v. Union of 
25
India and another held that the State actions causing loss are
actionable under public law. The courts, which are the protectors
of civil liberties of the citizens, would ensure protection against
devastating results of State action. The principles of public
accountability and transparency in State actions are applicable
to cases of executive or statutory exercise of power, besides
requiring that such actions also do not lack bona fides . The Court

25
(2005) 8 SCC 202
52

held that the public officers are answerable for both their inaction
and irresponsible actions. For such actions or inactions,
responsibility should be fixed on the erring officers so as to
ensure the real public purpose of an answerable administration.
49. The Court held that the principles of public accountability
are applicable to the government officials with all their rigour.
Greater the power to decide, higher is the responsibility to be just
and fair. It has been held that every officer in the hierarchy of the
State, by virtue of his being “public officer” or “public servant”, is
accountable for his decisions to the public as well as to the State.
It has been held that the concept of dual responsibility should be
applied with its rigours in the larger public interest and for proper
governance.
50. This Court in the case of Express Newspapers Pvt. Ltd. 
26
and others v. Union of India and others had an occasion to
consider the distinction between exercise of power in good faith

26
(1986) 1 SCC 133
53

and misuse in bad faith. While elaborating the principle of fraud
on power, this Court observed thus:
“119. Fraud on power voids the order if it
is not exercised bona fide for the end
design. There is a distinction between
exercise of power in good faith and misuse
in bad faith. The former arises when an
authority misuses its power in breach of
law, say, by taking into account bona fide,
and with best of intentions, some
extraneous matters or by ignoring relevant
matters. That would render the impugned
act or order ultra vires. It would be a case
of fraud on powers…..”

51. In the case of Nilabati Behera v. State of Orissa and 
27
others , this Court while considering as to whether the courts
exercising writ jurisdiction could grant relief under the public law
to a citizen complaining of infringement of the indefeasible right
guaranteed under the Constitution, observed thus:

“ 32. Adverting to the grant of relief to the
heirs of a victim of custodial death for the
infraction or invasion of his rights

27
(1993) 2 SCC 746
54

guaranteed under Article 21 of the
Constitution of India, it is not always
enough to relegate him to the ordinary
remedy of a civil suit to claim damages for
the tortious act of the State as that remedy
in private law indeed is available to the
aggrieved party. The citizen complaining of
the infringement of the indefeasible right
under Article 21 of the Constitution
cannot be told that for the established
violation of the fundamental right to life,
he cannot get any relief under the public
law by the courts exercising writ
jurisdiction. The primary source of the
public law proceedings stems from the
prerogative writs and the courts have,
therefore, to evolve ‘new tools’ to give relief
in public law by moulding it according to
the situation with a view to preserve and
protect the Rule of Law. While concluding
his first Hamlyn Lecture in 1949 under the
title “ Freedom under the Law ” Lord
Denning in his own style warned:

“ No one can suppose that the executive 
will never be guilty of the sins that are 
common to all of us. You may be sure 
that they will sometimes do things 
which they ought not to do : and will 
not do things that they ought to do . But
if and when wrongs are thereby suffered
by any of us what is the remedy? Our
procedure for securing our personal
freedom is efficient, our procedure for
55

preventing the abuse of power is not. Just
as the pick and shovel is no longer suitable
for the winning of coal, so also the
procedure of mandamus, certiorari, and
actions on the case are not suitable for the
winning of freedom in the new age. They
must be replaced by new and up-to date
machinery, by declarations, injunctions
and actions for negligence…. This is not
the task for Parliament … the courts must
do this. Of all the great tasks that lie ahead
this is the greatest. Properly exercised the
new powers of the executive lead to the
welfare state; but abused they lead to a
totalitarian state. None such must ever be
allowed in this country.””
[emphasis added]

52. In the case of Common Cause, a registered society v. 
28
Union of India and others , this Court observed thus:
“ 90. Halsbury's Laws of England , Vol. I(I)
4th Edn. (Reissue), (para 203) provides as
under:
“ Deliberate abuse of public office or 
authority .—Bad faith on the part of a
public officer or authority will result in
civil liability where the act would
constitute a tort but for the presence of

28
(1999) 6 SCC 667
56

statutory authorisation, as Parliament
intends statutory powers to be exercised in
good faith and for the purpose for which
they were conferred. Proof of improper
motive is necessary in respect of certain
torts and may negative a defence of
qualified privilege in respect of
defamation, but this is not peculiar to
public authorities. There exists an
independent tort of misfeasance by a
public officer or authority which consists
in the infliction of loss by the deliberate
abuse of a statutory power, or by the
usurpation of a power which the officer or
authority knows he does not possess, for
example by procuring the making of a
compulsory purchase order, or by
refusing, or cancelling or procuring the
cancellation of a licence, from improper
motives. However, where there has been
no misfeasance, the fact that a public
officer or authority makes an ultra vires
order or invalidly exercises statutory
powers will not of itself found an action for
damages.”
 
91. De Smith in Judicial Review of 
Administrative Action , while speaking of
tort of misfeasance in public office, says as
under:
“A public authority or person holding a
public office may be liable for the tort of
misfeasance in public office where:
57

( 1 ) there is an exercise or non-exercise of
public power, whether common law,
statutory or from some other source;
( 2 ) which is either ( a ) affected by malice
towards the plaintiff or ( b ) the decision
maker knows is unlawful; and
(3) the plaintiff is in consequence deprived
of a benefit or suffers other loss.”

92. De Smith further says as under:
“A power is exercised maliciously if its
repository is motivated by personal
animosity towards those who are directly
affected by its exercise. Where
misfeasance is alleged against a decision-
making body, it is sufficient to show that
a majority of its members present had
made the decision with the object of
damaging the plaintiff. Often there may be
no direct evidence of the existence of
malice, and in these circumstances the
court may make adverse inferences, e.g.
from the fact that a decision was
unreasonable, that it could only be
explained by the presence of such a
motive. A court will not entertain
allegation of bad faith or malice made
against the repository of a power unless it
has been expressly pleaded and properly
particularised.”

58

53. If the executive in an arbitrary manner demolishes the
houses of citizens only on the ground that they are accused of a
crime, then it acts contrary to the principles of ‘rule of law’. If the
executive acts as a judge and inflicts penalty of demolition on a
citizen on the ground that he is an accused, it violates the
principle of ‘separation of powers’. We are of the view that in such
matters the public officials, who take the law in their hands,
should be made accountable for such high-handed actions.
54. For the executive to act in a transparent manner so as to
avoid the vice of arbitrariness, we are of the view that certain
binding directives need to be formulated. This will ensure that
public officials do not act in a high-handed, arbitrary, and
discriminatory manner. Further, if they indulge in such acts,
accountability must be fastened upon them.

59

V. RIGHTS OF THE ACCUSED UNDER THE CONSTITUTION 
55. While we consider the issue in this case, we will have to
reiterate that even the incarcerated individuals, whether
accused, undertrial, or convicts, have certain rights, as any other
citizen. They have a right to dignity and cannot be subjected to
any cruel or inhuman treatment. The punishment awarded to
such persons has to be in accordance with law. Such
punishment cannot be inhuman or cruel.
56. This Court has protected the prisoners from excesses and
arbitrariness of the State and its officials. In the case of Sunil 
29
Batra (I) v. Delhi Administration and others , the Court
declared that the use of iron fetters, or the practice of solitary
confinement and cellular segregation is inhuman. Speaking for
the Court, Justice Krishna Iyer, in his inimitable style, states
that:

29
(1978) 4 SCC 494
60

“I hold that bar fetters are a barbarity
generally and, like whipping, must vanish.
Civilised consciousness is hostile to torture
within the walled campus. We hold that
solitary confinement, cellular segregation and
marginally modified editions of the same
process are inhuman and irrational… The law
is not abracadabra but at once pragmatic and
astute and does not surrender its power before
scary exaggerations of security by prison
bosses... Social justice cannot sleep if the
Constitution hangs limp where its consumers
most need its humanism.”
57. Again in the case of Charles Sobraj v. Supdt., Central 
30
Jail, Tihar, New Delhi , while observing that the rights enjoyed
by prisoners are not static and will rise to human heights when
challenging situations arise, this Court observed thus:
“ 12. … prisoners retain all rights enjoyed by
free citizens except those lost necessarily as
an incident of confinement. Moreover, the
rights enjoyed by prisoners under Articles 14,
19 and 21, though limited, are not static and
will rise to human heights when challenging
situations arise.”

30
(1978) 4 SCC 104
61

31
58. In Sunil Batra (II) v. Delhi Administration , the Court
highlighted Article 21 protects the prisoners against several
inflictions. It was held:
“Inflictions may take many protean
forms, apart from physical assaults.
Pushing the prisoner into a solitary cell,
denial of a necessary amenity, and, more
dreadful sometimes, transfer to a distant
prison where visits or society of friends or
relations may be snapped, allotment of
degrading labour, assigning him to a
desperate or tough gang and the like, may
be punitive in effect. Every such affliction
or abridgment is an infraction of liberty or
life in its wider sense and cannot be
sustained unless Article 21 is satisfied.”

 
59. This Court recently in the case of Sukanya Shantha v. 
32
Union of India & Ors. , reiterated the constitutional rights of
the accused in the following words:
“The right to live with dignity extends even to the
incarcerated. Not providing dignity to prisoners
is a relic of the colonizers and pre-colonial

31
(1980) 3 SCC 488
32
2024 INSC 753
62

mechanisms, where oppressive systems were
designed to dehumanize and degrade those
under the control of the State. Authoritarian
regimes of the pre-constitutional era saw
prisons not only as places of confinement but as
tools of domination. This Court, focusing on the
changed legal framework brought out by the
Constitution, has recognized that even prisoners
are entitled to the right to dignity…
Thus, the jurisprudence which emerges on the
rights of prisoners under Article 21 is that even
the incarcerated have inherent dignity. They are
to be treated in a humanely and without cruelty.
Police officers and prison officials cannot take
any disproportionate measures against
prisoners. The prison system must be
considerate of the physical and mental health of
prisoners. For instance, if a prisoner suffers
from a disability, adequate steps have to be
taken to ensure their dignity and to offer
support.”
60. It is thus clear that no one can take away the fundamental
rights of prisoners or the accused. Incidentally, this Court in the
33
case of Rudul Sah v. State of Bihar and another , had an
occasion to consider the question as to what happens when the
rights of the accused or the prisoners are violated, and he

33
1983 INSC 85
63

becomes a victim of lawlessness on the part of the State
Government which keeps him in illegal detention for over 14
years after his acquittal. While granting monetary compensation
to the victim in the said case, this Court observed thus:
“One of the telling ways in which the violation of
that right can reasonably be prevented and due
compliance with the mandate of Article 21
secured, is to mulct its violators in the payment
of monetary compensation. Administrative
sclerosis leading to flagrant infringements of
fundamental rights cannot be corrected by any
other method open to the judiciary to adopt. The
·right to compensation is some palliative for the
unlawful acts of instrumentalities which act in
the name of public interest and which present
for their protection the powers of the State as a
shield. If civilisation is not to perish in this
country as it has perished in some others too
well-known to suffer mention, it is necessary to
educate ourselves into accepting that, respect
for the rights of individuals is the true bastion of
democracy. Therefore, the State must repair the
damage done by its officers to the petitioner's
rights. It may have recourse against those
officers.”
64

61. Again in the case of Ankush Maruti Shinde and others v. 
34
State of Maharashtra , this Court has granted compensation
to the accused, who spent 16 years in jail on false implication by
the authorities.
62. From the above discussion, the position that would emerge
is that, firstly, even the accused or the convicts have certain
rights and safeguards in the form of constitutional provisions and
criminal law. Secondly, the State and its officials cannot take
arbitrary and excessive measures against the accused or for that
matter even against the convicts without following the due
process as sanctioned by law. The third principle that would
emerge is that when the right of an accused or a convict is
violated on account of illegal or arbitrary exercise of power by the
State or its officials or on account of their negligence, inaction, or
arbitrary action, there has to be an institutional accountability.
One of the measures for redressing the grievance for violation of

34
2019 INSC 305
65

a right would be to grant compensation. At the same time, if any
of the officers of the State has abused his powers or acted in a
totally arbitrary or mala fide manner, he cannot be spared for
such an illegal, arbitrary, mala fide exercise of power.
VI. PRINCIPLES OF CRIMINAL LAW: PRESUMPTION OF 
INNOCENCE AND NATURAL JUSTICE. 
 
63. The principle, that the criminal justice process is also to be
in accordance with the principle of the rule of law, is also very
well enshrined in the Constitution. The principle, that “an
accused is not guilty unless proven so in a court of law” is
foundational to any legal system. It reflects the presumption of
innocence, which means that every person accused of a crime is
considered innocent until proven guilty beyond a reasonable
doubt by a court of law. This principle ensures that individuals
are not unfairly punished or stigmatized based solely on
accusations or suspicions.
66

64. The right to a fair trial is essential in upholding the rule of
law and protecting individual liberties. It ensures that the
principles of natural justice and fair process are being strictly
followed. H.L.A. Hart summarized the principle of natural justice
as follows: 
“It may be said that the distinction between a
good legal system which conforms at certain
points to morality and justice, and a legal
system which does not, is a fallacious one,
because a minimum of justice is necessarily
realized whenever human behaviour is
controlled by general rules publicly announced
and judicially applied. Indeed we have already
pointed out,' in analysing the idea of justice, that
its simplest form (justice in the application of the
law) consists in no more than taking seriously
the notion that what is to be applied to a
multiplicity of different persons is the same
general rule, undeflected by prejudice, interest,
or caprice. This impartiality is what the
procedural standards known to English and
American lawyers as principles of 'Natural
Justice' are designed to secure. Hence, though
the most odious laws may be justly applied, we
have, in the bare notion of applying a general
35
rule of law, the germ at least of justice.”

35
H.L.A. Hart, The Concept of Law (Oxford University Press, New York, 2nd Edn., 1994),
p. 206
67

65. John Rawls defined the principle of natural justice in the
36
following words : 
“Finally, there are those precepts defining
the notion of natural justice. These are
guidelines intended to preserve the
integrity of the judicial process. If laws are
directives addressed to rational persons
for their guidance, courts must be
concerned to apply and to enforce these
rules in an appropriate way. A
conscientious effort must be made to
determine whether an infraction has taken
place and to impose the correct penalty.
Thus, a legal system must make
provisions for conducting orderly trials
and hearings; it must contain rules of
evidence that guarantee rational
procedures of inquiry. While there are
variations in these procedures, the rule of
law requires some form of due process:
that is, a process reasonably designed to
ascertain the truth, in ways consistent
with the other ends of the legal system, as
to whether a violation has taken place and
under what circumstances. For example,
judges must be independent and
impartial, and no man may judge his own
case. Trials must be fair and open, but not
prejudiced by public clamor. The precepts
of natural justice are to insure that the

36
John Rawls, A Theory of Justice (Revised Edition) (The Belknap Press of Harvard
University Press, Cambridge, 1999).
68

legal order will be impartially and regularly
37
maintained. ” 
 
66. It is thus required that the trial must be fair and open, but
not prejudiced by public clamor. The precepts of natural justice
are to ensure that the legal order will be impartially and regularly
maintained. An accused cannot be declared guilty, unless proven
so beyond reasonable doubt before a court of law. They cannot
be declared guilty, unless there is a fair trial. 
67. In this regard, it will be apposite to refer to the decision of
this Court in the case of Himanshu Singh Sabharwal v. State 
38
of Madhya Pradesh and others , where it was held: 
“Failure to accord fair hearing either to the
accused or the prosecution violates even
minimum standards of due process of law.
It is inherent in the concept of due process
of law, that condemnation should be
rendered only after the trial in which the
hearing is a real one, not sham or a mere
farce and pretence. Since the fair hearing
requires an opportunity to preserve the

37
Id . at 209-210.
38
AIR 2008 SC 1943
69

process, it may be vitiated and violated by
an overhasty stage-managed, tailored and
partisan trial…
The fair trial for a criminal offence consists
not only in technical observance of the
frame and forms of law, but also in
recognition and just application of its
principles in substance, to find out the truth
and prevent miscarriage of justice.” 
</pre><table><thead><tr><th>68. It has been held by this Court in the case of State of</th><th></th><th></th></tr></thead><tbody><tr><td>Maharashtra v. Champalal Punjaji Shah39, that the right to a</td><td></td><td></td></tr><tr><td>fair and speedy trial is enshrined under the right to life</td><td></td><td></td></tr><tr><td>guaranteed under the Constitution.</td><td></td><td></td></tr><tr><td>69. The importance and purpose of the principles of natural</td><td></td><td></td></tr><tr><td>justice have been succinctly summed up by Lord Megarry in the</td><td></td><td></td></tr><tr><td>case of John v Rees40 as under:</td><td></td><td></td></tr><tr><td></td><td>“It may be that there are some who would</td><td></td></tr><tr><td></td><td>decry the importance which the courts</td><td></td></tr><tr><td></td><td>attach to the observance of the rules of</td><td></td></tr><tr><td></td><td>natural justice. ‘When something is</td><td></td></tr><tr><td></td><td>obvious,’ they may say, ‘why force</td><td></td></tr><tr><td></td><td>everybody to go through the tiresome</td><td></td></tr><tr><td></td><td>waste of time involved in framing charges</td><td></td></tr></tbody></table><pre>

39
(1982) 1 SCR 299
40
(1970) Ch 345 at p. 402
70

</pre><table><thead><tr><th></th><th>and giving an opportunity to be heard?</th><th></th></tr></thead><tbody><tr><td></td><td>The result is obvious from the start.’ Those</td><td></td></tr><tr><td></td><td>who take this view do not, I think, do</td><td></td></tr><tr><td></td><td>themselves justice. As everybody who has</td><td></td></tr><tr><td></td><td>anything to do with the law well knows,</td><td></td></tr><tr><td></td><td>the path of the law is strewn with</td><td></td></tr><tr><td></td><td>examples of open and shut cases which,</td><td></td></tr><tr><td></td><td>somehow, were not; of unanswerable</td><td></td></tr><tr><td></td><td>charges which, in the event, were</td><td></td></tr><tr><td></td><td>completely answered; of inexplicable</td><td></td></tr><tr><td></td><td>conduct which was fully explained; of fixed</td><td></td></tr><tr><td></td><td>and unalterable determinations that, by</td><td></td></tr><tr><td></td><td>discussion, suffered a change. Nor are</td><td></td></tr><tr><td></td><td>those with any knowledge of human</td><td></td></tr><tr><td></td><td>nature who pause to think for a moment</td><td></td></tr><tr><td></td><td>likely to underestimate the feelings of</td><td></td></tr><tr><td></td><td>resentment of those who find that a</td><td></td></tr><tr><td></td><td>decision against them has been made</td><td></td></tr><tr><td></td><td>without their being afforded any</td><td></td></tr><tr><td></td><td>opportunity to influence the course of</td><td></td></tr><tr><td></td><td>events.”</td><td></td></tr><tr><td></td><td></td><td></td></tr><tr><td>70. In the light of the aforesaid, we will have to consider the</td><td></td><td></td></tr><tr><td>grievance as sought to be espoused in the present Writ Petitions.</td><td></td><td></td></tr><tr><td>71. As discussed hereinabove, the rule of law, the rights of the</td><td></td><td></td></tr><tr><td>citizens guaranteed under the Constitution, and the principles of</td><td></td><td></td></tr><tr><td>natural justice would be essential requirements. If a citizen’s</td><td></td><td></td></tr><tr><td>house is demolished merely because he is an accused or even for</td><td></td><td></td></tr></tbody></table><pre>
71

that matter a convict, that too without following the due process
as prescribed by law, in our considered view, 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. Only on the basis of the accusations,
if the executive demolishes the property/properties of such an
accused person without following the due process of law, it would
strike at the basic principle of rule of law and is not permissible.
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.
72. The chilling sight of a bulldozer demolishing a building,
when authorities have failed to follow the basic principles of
natural justice and have acted without adhering to the principle
of due process, reminds one of a lawless state of affairs, where
“might was right”. In our constitution, which rests on the
72

foundation of ‘the rule of law’, such high-handed and arbitrary
actions have no place. Such excesses at the hands of the
executive will have to be dealt with the heavy hand of the law.
Our constitutional ethos and values would not permit any such
abuse of power and such misadventures cannot be tolerated by
the court of law.
73. As we have already said, such an action also cannot be done
in respect of a person who is convicted of an offence. Even in the
case of such a person the property/properties cannot be
demolished without following the due process as prescribed by
law.
74. Such an action by the executive would be wholly arbitrary
and would amount to an abuse of process of law. The executive
in such a case would be guilty of taking the law in his hand and
giving a go-bye to the principle of the rule of law.
75. It is to be noted that even in the cases consisting of
imposition of a death sentence, it is always a discretion available
73

to the courts as to whether to award such an extreme
punishment or not. There is even an institutional safeguard in
the cases of such punishment to the effect that the decision of
the trial court inflicting death penalty cannot be executed unless
it is confirmed by the High Court. Even in the cases of convicts
for the commission of most extreme and heinous offences, the
punishment cannot be imposed without following the mandatory
requirements under the statute. In that light, can it be said that
a person who is only accused of committing some crime or even
convicted can be inflicted the punishment of demolition of his
property/properties? The answer is an emphatic ‘No’.
VII. RIGHT TO SHELTER 
76. There is another angle to this problem. It is not only the
accused who lives in such property or owns such property. If his
spouse, children, parents live in the same house or co-own the
same property, can they be penalized by demolishing the
property without them even being involved in any crime only on
74

the basis of them being related to an alleged accused person?
What is their mistake if their relative is arrayed as an accused in
some complaint or F.I.R.? As is well known, a pious father may
have a recalcitrant son and vice versa. Punishing such persons
who have no connection with the crime by demolishing the house
where they live in or properties owned by them is nothing but an
anarchy and would amount to a violation of the right to life
guaranteed under the Constitution.
77. This Court in the case of Chameli Singh and others v. 
41
State of U.P. and another though was considering an issue
in the context of land acquisition, it had elaborately discussed on
the right to shelter. It will be apt to refer to the following
observations of this Court:
“ 7. In State of Karnataka v.
Narasimhamurthy [(1995) 5 SCC 524 : JT
(1995) 6 SC 375] (SCC p. 526, para 7 : JT
at p. 378, para 7), this Court held that
right to shelter is a fundamental right
under Article 19(1) of the Constitution. To

41
(1996) 2 SCC 549
75

make the right meaningful to the poor, the
State has to provide facilities and
opportunity to build houses. Acquisition of
the land to provide house sites to the poor
houseless is a public purpose as it is the
constitutional duty of the State to provide
house sites to the poor.
8. In any organised society, right to live as
a human being is not ensured by meeting
only the animal needs of man. It is secured
only when he is assured of all facilities to
develop himself and is freed from
restrictions which inhibit his growth. All
human rights are designed to achieve this
object. Right to live guaranteed in any
civilised society implies the right to food,
water, decent environment, education,
medical care and shelter. These are basic
human rights known to any civilised
society. All civil, political, social and
cultural rights enshrined in the Universal
Declaration of Human Rights and
Convention or under the Constitution of
India cannot be exercised without these
basic human rights. Shelter for a human
being, therefore, is not a mere protection
of his life and limb. It is home where he
has opportunities to grow physically,
mentally, intellectually and spiritually.
Right to shelter, therefore, includes
adequate living space, safe and decent
structure, clean and decent surroundings,
sufficient light, pure air and water,
76

electricity, sanitation and other civic
amenities like roads etc. so as to have easy
access to his daily avocation. The right to
shelter, therefore, does not mean a mere
right to a roof over one's head but right to
all the infrastructure necessary to enable
them to live and develop as a human
being. Right to shelter when used as an
essential requisite to the right to live
should be deemed to have been
guaranteed as a fundamental right. As is
enjoined in the Directive Principles, the
State should be deemed to be under an
obligation to secure it for its citizens, of
course subject to its economic budgeting.
In a democratic society as a member of the
organised civic community one should
have permanent shelter so as to
physically, mentally and intellectually
equip oneself to improve his excellence as
a useful citizen as enjoined in the
Fundamental Duties and to be a useful
citizen and equal participant in
democracy. The ultimate object of making
a man equipped with a right to dignity of
person and equality of status is to enable
him to develop himself into a cultured
being. Want of decent residence, therefore,
frustrates the very object of the
constitutional animation of right to
equality, economic justice, fundamental
right to residence, dignity of person and
right to live itself. To bring the Dalits and
Tribes into the mainstream of national life,
77

providing these facilities and opportunities
to them is the duty of the State as
fundamental to their basic human and
constitutional rights.”
78. The right to shelter is one of the facets of Article 21.
Depriving such innocent people of their right to life by removing
shelter from their heads, in our considered view, would be wholly
unconstitutional.
79. It was sought to be urged by the learned SG that most of
the houses which were demolished were demolished since the
constructions were found to be in breach of the local municipal
laws. It was submitted that the houses were demolished since
they are found to be in violation of either the provisions of
municipal law governing them or the Panchayat laws governing
such construction.
80. The learned SG submitted that in some cases it may be by
sheer coincidence that the properties which were in breach of
local municipal laws governing them also happen to belong to
accused persons. He, however, reiterated that it was the stand of
78

various States that such properties can be demolished only in
accordance with the procedure prescribed by law.
81. The position is disputed by the learned counsels appearing
on behalf of the petitioners/applicants. It is stated that the chain
of events clearly depicts that the demolition of the houses was an
immediate reflection of the persons being implicated in crimes.
It was submitted that the time gap between the person being
named as an accused and demolition of his property/properties
made it apparent that the punishment of demolition was inflicted
by the executive on such person being arrayed as an accused. It
was also submitted that in case of demolition of the property of
an alleged accused, it is difficult to believe that only a single
construction belonging to an accused is unauthorized
construction, whereas all other structures in the vicinity are legal
and authorized as per local laws.
82. Though the learned SG may be right in submitting that in
some cases it may be by sheer coincidence that the properties
79

which were in breach of local municipal laws governing them also
happen to belong to the accused persons, however, 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, mala fide may loom large. In such
cases, where the authorities indulge into arbitrary pick and
choose of the structures and it is established that soon before
initiation of such an action an occupant of the structure was
found to be involved in a criminal case, a presumption could be
drawn that the real motive for such demolition proceedings was
not the illegal structure but an action of penalizing 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 penalize a person
accused by demolishing the structure.
83. While considering the issue with regard to the demolition of
the houses which are required to be demolished for breach of the
80

local laws, we find that the principle of the rule of law needs to
be considered even in the municipal laws. There may be certain
unauthorized constructions which could be compoundable.
There may be certain constructions wherein only part of the
construction is required to be removed. In such cases, the
extreme step of demolition of the property/house property would,
in our view, be disproportionate.
84. As already discussed herein above, the right to shelter is
one of the facets of Article 21 of the Constitution. If the persons
are to be dishoused, then for taking such steps the concerned
authorities must satisfy themselves that such an extreme step of
demolition is only available and other options including
compounding and demolition of only part of the house property
are not available. This Court in catena of cases including the
Constitution Bench cases of Modern Dental College and 
Research Centre and others v. State of Madhya Pradesh and 
81

42
others , K.S. Puttaswamy and another v. Union of India and 
43
others (Privacy 9-J) and Vivek Narayan Sharma and others 
44
v. Union of India and others (Demonetization Case-5J) has
laid emphasis on the four-pronged test of proportionality.
85. In the case of Modern Dental College and Research 
Centre and others (supra), this Court observed thus:
“ 60. …….Thus, while examining as to
whether the impugned provisions of the
statute and rules amount to reasonable
restrictions and are brought out in the
interest of the general public, the exercise
that is required to be undertaken is the
balancing of fundamental right to carry on
occupation on the one hand and the
restrictions imposed on the other hand.
This is what is known as “ doctrine of 
proportionality ”. Jurisprudentially,
“ proportionality ” can be defined as the set
of rules determining the necessary and
sufficient conditions for limitation of a
constitutionally protected right by a law to
be constitutionally permissible. According
to Aharon Barak (former Chief Justice,
Supreme Court of Israel), there are four

42
(2016) 7 SCC 353
43
(2017) 10 SCC 1
44
(2023) 3 SCC 1
82

sub-components of proportionality which
need to be satisfied [ Aharon
Barak, Proportionality: Constitutional 
Rights and Their Limitation (Cambridge
University Press 2012).] , a limitation of a
constitutional right will be constitutionally
permissible if:
( i ) it is designated for a proper purpose;
( ii ) the measures undertaken to effectuate
such a limitation are rationally connected
to the fulfilment of that purpose;
( iii ) the measures undertaken are
necessary in that there are no alternative
measures that may similarly achieve that
same purpose with a lesser degree of
limitation; and finally
( iv ) there needs to be a proper relation
(“ proportionality stricto sensu ” or
“ balancing ”) between the importance of
achieving the proper purpose and the
social importance of preventing the
limitation on the constitutional right.”
86. It is also to be noted that the construction of a house has
an aspect of socio-economic rights. 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
83

embodies the collective hopes of a family or individuals for
stability, security, and a future. Having a house or a roof over
one’s head gives satisfaction to any person. It gives a sense of
dignity and a sense of belonging. If this is to be taken away, then
the authority must be satisfied that this is the only option
available.
VIII. PERMISSIBILITY OF THE COLLECTIVE PUNISHMENT 
87. Right to life is a fundamental right. As already discussed
herein above, with the expanded scope of law, the right to shelter
has also been considered as one of the facets of Article 21 of the
Constitution. In one structure, various people or maybe even a
few families could reside. The question that is required to be
considered is, as to whether if only one of the residents of such a
structure is an accused or convicted in a crime, could the
authorities be permitted to demolish the entire structure thereby
removing the shelter from the heads of the persons who are not
directly or indirectly related with the commission of crime.
84

88. It is a settled principle of criminal jurisprudence as
recognized in our country that a person is presumed to be
innocent till he is held guilty. In our view, if demolition of a house
is permitted wherein 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. In our
considered view, our constitutional scheme and the criminal
jurisprudence would never permit the same.
 
89. In this respect, it will be apposite to refer to the following
observations of Justice Krishna Iyer in the case of Gujarat Steel 
Tubes Ltd. and others v. Gujarat Steel Tubes Mazdoor Sabha 
45
and others :
“ 111. The cardinal distinction in our
punitive jurisprudence between a
commission of enquiry and a court of
adjudication, between the cumulative

45
(1980) 2 SCC 593
85

causes of a calamity and the specific guilt
of a particular person, is that speaking
generally, we have rejected, as a nation,
the theory of community guilt and
collective punishment and instead that no
man shall be punished except for his own
guilt. Its reflection in the disciplinary
jurisdiction is that no worker shall be
dismissed save on proof of his individual
delinquency. Blanket attainder of a bulk of
citizens on any vicarious theory for the
gross sins of some only, is easy to apply
but obnoxious in principle.”

IX. DIRECTIONS 
90. In order to allay the fears in the minds of the citizens with
regard to arbitrary exercise of power by the officers/officials of
the State, we find it necessary to issue certain directions in
exercise of our power under Article 142 of the Constitution. We
are also of the view that even after orders of demolition are
passed, the affected party needs to be given some time so as to
challenge the order of demolition before an appropriate forum.
We are further of the view that even in cases of persons who do
not wish to contest the demolition order, sufficient time needs to
86

be given to them to vacate and arrange their affairs. It is not a
happy sight to see women, children and aged persons dragged to
the streets overnight. Heavens would not fall on the authorities if
they hold their hands for some period.
91. At the outset, we clarify that these directions will not be
applicable if there is an unauthorized 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.
A. NOTICE 

i. No demolition should be carried out without a prior
show cause notice returnable either in accordance
with the time provided by the local municipal laws or
within 15 days’ time from the date of service of such
notice, whichever is later.

ii. The notice shall be served upon the owner/occupier
by a registered post A.D. Additionally, the notice shall
87

also be affixed conspicuously on the outer portion of
the structure in question.
</pre><table><thead><tr><th>iii.</th><th>The time of 15 days, stated herein above, shall start</th></tr></thead><tbody><tr><td></td><td>from the date of receipt of the said notice.</td></tr><tr><td></td><td></td></tr><tr><td>iv.</td><td>To prevent any allegation of backdating, we direct that</td></tr><tr><td></td><td>as soon as the show cause notice is duly served,</td></tr><tr><td></td><td>intimation thereof shall be sent to the office of</td></tr><tr><td></td><td>Collector/District Magistrate of the district digitally by</td></tr><tr><td></td><td>email and an auto generated reply acknowledging</td></tr><tr><td></td><td>receipt of the mail should also be issued from the office</td></tr><tr><td></td><td>of the Collector/District Magistrate. The Collector/DM</td></tr><tr><td></td><td>shall designate a nodal officer and also assign an email</td></tr><tr><td></td><td>address and communicate the same to all the</td></tr><tr><td></td><td>municipal and other authorities in charge of building</td></tr><tr><td></td><td>regulations and demolition within one month from</td></tr><tr><td></td><td>today.</td></tr></tbody></table><pre>
88

v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the
grounds of demolition.
c. a list of documents that the noticee is required to
furnish along with his reply.
d. The notice should also specify the date on which
the personal hearing is fixed and the designated
authority before whom the hearing will take
place;

vi. Every municipal/local authority shall assign a
designated digital portal, within 3 months from today
wherein details regarding service/pasting of the
notice, the reply, the show cause notice and the order
passed thereon would be available.

89

B. PERSONAL HEARING 
i. The designated authority shall give an opportunity of
personal hearing to the person concerned.

ii. The minutes of such a hearing shall also be recorded.

C. FINAL ORDER 
i. Upon hearing, the designated authority shall pass a
final order.

ii. The final order shall contain:
a. the contentions of the noticee, and if the
designated authority disagrees with the same,
the reasons thereof;
b. as to whether the unauthorized construction is
compoundable, if it is not so, the reasons
therefor;
90

c. if the designated authority finds that only part of
the construction is unauthorized/non-
compoundable, then the details thereof.

d. as to why 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.

D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL 
SCRUTINY OF THE FINAL ORDER. 
 
i. We further direct that if the statute provides for an
appellate opportunity and time for filing the same, or
even if it does not so, the order will not be implemented
for a period of 15 days from the date of receipt thereof.
The order shall also be displayed on the digital portal
as stated above.

ii. An opportunity should be given to the owner/occupier
to remove the unauthorized construction or demolish
91

</pre><table><thead><tr><th></th><th>the same within a period of 15 days. Only after the</th></tr></thead><tbody><tr><td></td><td>period of 15 days from the date of receipt of the notice</td></tr><tr><td></td><td>has expired and the owner/occupier has not</td></tr><tr><td></td><td>removed/demolished the unauthorized construction,</td></tr><tr><td></td><td>and if the same is not stayed by any appellate</td></tr><tr><td></td><td>authority or a court, the concerned authority shall</td></tr><tr><td></td><td>take steps to demolish the same. It is only such</td></tr><tr><td></td><td>construction which is found to be unauthorized and</td></tr><tr><td></td><td>not compoundable shall be demolished.</td></tr><tr><td></td><td></td></tr><tr><td>iii.</td><td>Before demolition, a detailed inspection report shall be</td></tr><tr><td></td><td>prepared by the concerned authority signed by two</td></tr><tr><td></td><td>Panchas.</td></tr></tbody></table><table><thead><tr><th>E. PROCEEDINGS OF DEMOLITION</th><th></th></tr></thead><tbody><tr><td>i.</td><td>The proceedings of demolition shall be video-graphed,</td></tr><tr><td></td><td>and the concerned authority shall prepare a</td></tr><tr><td></td><td>demolition report giving the list of police officials and</td></tr></tbody></table><pre>
92

</pre><table><thead><tr><th>civil personnel that participated in the demolition</th><th></th></tr></thead><tbody><tr><td>process. Video recording to be duly preserved.</td><td></td></tr><tr><td></td><td></td></tr><tr><td>The said demolition report should be forwarded to the</td><td></td></tr><tr><td>Municipal Commissioner by email and shall also be</td><td></td></tr><tr><td>displayed on the digital portal.</td><td></td></tr></tbody></table><pre>
92. Needless to state that the authorities hereinafter shall
strictly comply with the aforesaid directions issued by us.
93. It will also be informed that violation of any of the directions
would lead to initiation of contempt proceedings in addition to
the prosecution.
94. The officials should also be informed that if the demolition
is found to be in violation of the orders of this Court, the
officer/officers concerned will be held responsible for restitution
of the demolished property at his/their personal cost in addition
to payment of damages.
93

95. The Registrar (Judicial) is directed to circulate a copy of this
judgment to the Chief Secretaries of all the States/Union
Territories and the Registrar Generals of all the High Courts. All
State Governments shall issue circulars to all the District
Magistrates and local authorities intimating them about the
directions issued by this Court.
96. Before we part with the judgment, we must place on record
our appreciation for the valuable assistance and suggestions
given by Shri Abhishek Manu Singhvi, Shri M.R. Shamshad, Shri
Sanjay Hegde, Shri C.U. Singh, Smt. Nitya Ramakrishnan,
learned Senior Counsel, and Shri Prashant Bhushan, Shri Mohd.
Nizammudin Pasha, Smt. Fauzia Shakil and Smt. Rashmi Singh,
learned counsel appearing for the petitioners/applicants.
97. We also make a special mention of the pain-staking efforts
made by Shri Nachiketa Joshi, learned Senior Counsel in
collating the suggestions given by all the different counsel.
94

98. We must place on record our appreciation for Shri Tushar
Mehta, learned Solicitor General of India, who has presented the
case in an objective and dispassionate manner in keeping with
the traditions of his high office.
99. Post the writ petitions for further orders after four weeks.

 
 
 
 
…….........................J. 
[B.R. GAVAI] 
 
 
 
…….........................J. 
[K.V. VISWANATHAN] 
NEW DELHI; 
NOVEMBER 13, 2024 
95
</pre>