Demolishing Illegal Constructions: Does The Right to Shelter Outweigh the Rule of Law?

Introduction

The urban Indian landscape is plagued with illegally-built commercial and residential structures. The Supreme Court has expressed displeasure with various governments for failing to curb ubiquitous encroachments on government land and unauthorized constructions on private property. Various Municipal Corporations have struggled to keep this menace in check. Unfortunately, the Supreme Court is yet to lay down guidelines for ensuring compliance with municipal laws. While data from the Ministry of Housing and Urban Affairs indicates that actual demolitions contribute to a decline in illegal constructions, the Supreme Court’s recent verdict in In Re: Directions In The Matter Of Demolition Of Structures (‘Bulldozer Justice’) undermines the executive’s efforts to uphold high urban planning standards.

Holding that demolishing citizens’ properties solely on the ground that the owners are accused or convicted of criminal offenses is contrary to the Rule of Law, the Court recognized that the arbitrary and sudden demolition of isolated illegal structures without similar treatment meted out to others in the vicinity indicates the executive authority’s malafide intent. While this judgement rightly addresses the recent trend of the Indian executive selectively utilizing state machinery to demolish unauthorized constructions of targeted occupants without following due process, the verdict’s misplaced reliance on concepts such as the Right to Shelter weakens the legal position of municipal authorities in ensuring compliance with existing laws.

Interestingly, in another recent decision, Rajendra Kumar Barjatya v. U.P. Avas Evam Vikas Parishad (‘Rajendra Kumar’), the Supreme Court observed that any construction made in contravention of the law would be considered illegal and must necessarily be demolished. The Court clarified that prolonged occupation or inaction of authorities cannot legitimize such construction. This position is somewhat contradictory to the Court’s stance in the Bulldozer Justice case, which laid strict guidelines to curb arbitrary, though legal demolitions. With these conflicting judgements, a new fundamental question of law arises: Does the Right to Shelter weigh over the Rule of Law?

This article critiques the Bulldozer Justice verdict in the context of its misplaced reliance on the Right to Shelter as a justification for delaying the demolition of unauthorized structures. While cautioning against such reliance, this piece proposes workable solutions to address the challenge of illegal construction in Indian cities.

The Conflict of Right to Shelter with the Rule of Law

The unabated mushrooming of illegal constructions in cities despite court orders and demolition notices indicates that actual demolition is crucial for large-scale deterrence. If arbitrary demolitions violate the Rule of Law, so does the inaction of not conducting actual demolition of unauthorized structures after following due process. In this context, the Bulldozer Justice judgement is an unintended setback to the Rule of Law.

The Supreme Court relied on Albert Venn Dicey’s three pillars of the Rule of Law in paragraph 14, the first of which states that “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.” The caveat in Dicey’s conception that a distinct breach of law justifies punishment and suffering in body or goods was conveniently overlooked by the Supreme Court. Illegal constructions indeed constitute a distinct breach of law, especially when such a breach has been established in the ordinary legal manner through demolition notices, and not serving punishment for such acts is contrary to the Rule of Law.

The Court also defended the curbs on demolition of such properties with the rationale that the family members of the targeted individual who co-habit in the same property should not be penalized solely on the grounds of being related to the accused. The Court placed reliance on the Right to Shelter, a facet of Article 21 as recognized in Chameli Singh and others v. State of U.P. and another to conclude that “depriving innocent people of their Right to Life by removing shelter from their head would be wholly unconstitutional.” While collective punishment for the liability of one individual is indeed undesirable, the Court failed to view the illegal occupancy of the said premises as a wrongful act in itself that is contrary to the Rule of Law. It would be an incorrect position of law to consider a resident of an unauthorised construction as ‘innocent.’

While laying down guidelines on the due process to be followed before demolitions occur, the Supreme Court clarified that these directions shall not be applicable to the demolitions of unauthorized structures in public places such as roads, streets, footpaths, or water bodies, and to court-ordered demolitions. However, the unaddressed flaw in this arrangement is whether such guidelines extend to situations where the said illegal construction is wholly or partly in a public place and is used for residential purposes. If so, the Bulldozer Justice verdict would embolden the occupants of such constructions by prolonging their possession of such land.

Another concern raised by the Bulldozer Justice verdict is the Court’s uncritical view of considering it disproportionate to conduct demolition of the property if there is scope for the unauthorized constructions to be compoundable, where only a part of the construction is required to be removed. This rationale is flawed as it unnecessarily enables the proprietors to easily evade demolition of the entire property by claiming that the illegality can be cured. Contrarily, most illegal structures are plagued with safety concerns such as a high risk of fires and collapse, and allowing such partial demolitions only increases such risks, instead of making the perpetrators accountable. Allowing such consequences under the pretext of the Right to Shelter, defeats the very purpose of this right, which is access to housing in a safe and reliable structure.

The Bombay High Court in Suhas v. The State of Maharashtra held that dangerous buildings must be razed in entirety and municipal authorities cannot merely stop at issuing notices. Yet, the legal position endorsed by the Court in Bulldozer Justice is unlikely to reduce the sharply-rising annually reported instances of illegal constructions, and may instead encourage temporary partial demolitions where the original illegal construction can reappear due to inaction. Such unintended consequences would be a disservice to the concept of Rule of Law.

Legislative Effort To Tackle Illegal Construction

The Bombay High Court has termed the flourishing of illegal buildings in India’s urban centres a ‘humanitarian problem.’ However, despite legislative intervention, this problem has not been solved in any major city. A good example is the inefficacy of the Gujarat Regularization of Unauthorised Development Act, 2022 (‘Gujarat Act’) in curbing such constructions in Ahmedabad. The Gujarat Act allows for the fee-based legalization of certain constructions, which is contrary to the Supreme Court’s verdict in Rajendra Kumar, prohibiting the regularization of illegal structures. It is noteworthy that the Supreme Court had previously in Esha Ekta Apartments Coop Housing Society Ltd. v. Municipal Corporation of Mumbai observed that courts should refrain from ordering regularisation of illegal and unauthorised constructions, as doing so encourages violators and jeopardizes the idea of planned urban development. Thus, legislative intervention must not be focused on short-term solutions such as regularization of illegal constructions which nullify the public trust doctrine by legalizing encroachments.

Another flaw of the Gujarat Act is that it does not allow for suo motu actions by the relevant authority, relying on a complaint-based system that is not resident-friendly in densely-populated neighbourhoods where filing a complaint may lead to the ostracization of complainants. The Supreme Court in Supertech Limited v. Emerald Court Owner Resident Welfare Association observed that “a breach of the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law.” While the local resident should be at the centre of such an arrangement, it is crucial to ensure the safety and anonymity of such complainants.

Recently, Bengaluru has started implementing an effective existing provision in force, Section 15(4) of the Karnataka Town and Country Planning Act, 1961 (the Karnataka Act), which empowers the Planning Authority to seal an illegally constructed structure and to discontinue any work in progress in such premises until demolition takes place. Such provisions are largely beneficial and should be implemented across cities as they ensure that due process is followed before demolition, and also act as sufficiently deterrent by putting an end to the continued occupation and use of the illegal property. Sealing of the property also ensures that it remains under the public eye and is timely demolished by the municipal authority. An important distinction here could be between the residential use of such property and commercial use, wherein the former may allow for a relaxation in the timeline of sealing the property to strike a balance between enforcing the Rule of Law, and upholding the occupants’ Right to Shelter.

The Way Forward

The Courts have time and again recognized that the menace of illegal constructions is attributable to multiple parties, including the municipal authority officials who often act in connivance with the occupants of illegal constructions. Hence, for the Bulldozer Justice judgement to be truly effective, it is essential to uphold the Rule of Law by regulating the conduct of all parties involved in violating municipal law through illegal constructions. This can be done by fixing penal accountability for both the builders of illegal structures, and the government and municipal corporation officials who overlooked such constructions.

Towards this end, municipal authorities must be empowered to take suo motu cognizance of instances of illegal constructions. This must be accompanied by a system of filing anonymous complaints that can allow local residents to inform authorities about alleged violations. For this, municipal corporations can use drone technology to map areas within their jurisdiction, while simultaneously assessing whether or not the removal of the illegal construction requires complete demolition to ensure compliance with safety standards. Measures like these shall ensure that demolition orders for illegal construction are neither arbitrary, nor punitive, and follow the restorative spirit endorsed in Rajendra Kumar.

Finally, the Supreme Court must clarify that the guidelines laid down in Bulldozer Justice would not apply as long as the unauthorized construction encroaches upon government land, notwithstanding its use for residential purposes. To complement such judicial measures, legislative intervention is needed through provisions similar to Section 15(4) of the Karnataka Act, provided that regularization of such encroachments is avoided. Hence, the Rule of Law would rightly prevail over the Right to Shelter to curb the menace of illegal constructions.