The Absolute Prohibition against Punitive Demolitions – Constitutional Law and Philosophy
[This is a guest post by Rishika Sahgal.]
On 1 April 2025, the Supreme Court of India made important remarks in a punitive demolition matter from Uttar Pradesh, holding that the demolition of six homes carried out by the Prayagraj Development Authority was ‘illegal’, ‘high-handed’, ‘inhuman’ and ‘shock[s] our conscience’. A Division Bench of the Court, consisting of Justices AS Oka and Ujjal Bhuyan, ordered compensation of rupees 10 lakh each to the six appellants so that they could rebuild their demolished homes. In this blog post, I argue that these proceedings create the potential to treat punitive demolitions as cruel, inhuman and degrading treatment and/or punishment (CIDT/P). This opens up another doctrinal possibility to challenge punitive demolitions before Indian courts.
Explicitly, the Division Bench of the Supreme Court did not refer to the right against torture and/or cruel, inhuman and degrading treatment and/or punishment. The judges referred only to the right to shelter, and more narrowly, the procedural obligation to provide a notice and hearing to residents facing demolitions recognised as far back as 1985 in Olga Tellis. So, the Division Bench was concerned that the appellants were given notice of ‘less than 24 hours’; that the notice was ‘affixed’ on the homes of the appellants rather than served in person or through registered post; and that the appellants were not given a ‘reasonable opportunity’ to explain their case prior to the demolition. Justice Oka observed, ‘[t]his affixing business must be stopped. They have lost their houses because of this,’ and that ‘genuine efforts are required to be made for affecting service [of notice] in person’. This explains why the Division Bench considered the demolitions to be ‘high-handed’ and ‘illegal’.
Beyond this, the Division Bench remarked that the demolitions were ‘inhuman’ and ‘shock our conscience’. I argue that these remarks enable us to consider punitive demolitions within the framework of cruel, inhumane and degrading treatment and/or punishment, and not just within the framework of the right to shelter and housing. In the following sections, I first consider the jurisprudence of the Supreme Court on cruelty and torture; thereafter how we might treat punitive demolitions within this framework and the possibilities that this opens. Given that the right against cruel, inhuman and degrading treatment and punishment is absolute and not capable of being limited through ‘reasonable’ or ‘proportionate’ means, this implies that there is an absolute prohibition against punitive demolitions.
The Supreme Court’s jurisprudence on cruelty and torture
The Constitution of India does not explicitly enshrine a right against torture and cruel, inhumane and degrading treatment and punishment. The Supreme Court has recognised this right through its interpretation of the right to life under Article 21. In Francis Coralie Mullin, the Supreme Court held that:
Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21.
Through this, the Supreme Court also recognised that there is no possible justification for torture and cruel, inhumane and degrading treatment and punishment under the reasonableness standard of review, let alone the proportionality standard now applicable to check restrictions on rights under Article 21 (see Puttaswamy).
Even when such treatment or punishment is prescribed by law, if it is found to amount to torture or CIDT/P, the procedural or substantive law prescribing such treatment shall be unconstitutional because ‘no law which authorises and no procedure which leads to such torture or CIDT can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional’ (Francis Coralie Mullin, paragraph 8).
But how do we determine if a treatment or punishment amounts to torture and CIDT/P? In a chapter to be published in a forthcoming edited collection on the death penalty in India, Maitreyi Misra and I argue that the Supreme Court has used the following factors to determine what constitutes torture and CIDT/P: (1) physical and/or mental pain, suffering and trauma; (2) humiliation, debasement or degradation. The Court has considered it sufficient to find torture when either suffering or degradation has been indicated but sometimes has used them in conjunction to determine whether specific state action amounts to torture and CIDT/P. Overall, the Court has expressed a paramount concern for (3) human dignity. The Supreme Court has not differentiated between torture and CIDT/P, rather treats all these as absolutely prohibited.
Applying these factors to the context of punitive demolitions
Punitive demolitions fit well within this framework. We can consider these as a form of ‘punishment’ or, in any case, as ‘treatment’. The three factors the Supreme Court has used to identify torture and CIDT/P apply to the context of punitive demolitions. Therefore, these are absolutely prohibited.
Punitive demolitions as punishment
Punitive demolitions have been used by the state as a form of ‘punishment’ although these are not prescribed as such under the law. This is clear when we look at the context of these demolitions as well as statements made by state officials surrounding these demolitions.
The punitive demolitions strategy is credited to the Chief Minister of Uttar Pradesh, Yogi Adityanath, who is colloquially known as ‘Bulldozer Baba’. He has openly stated that this is the strategy of his government to deal with crime in the state, and that, ‘[w]e have taken action within the framework of law against any mafia or criminal who has challenged the government or people’s safety and security. Bulldozer action is for professional criminals and mafia, and not for the common man.’
This strategy has extended beyond Uttar Pradesh. For example, in July 2023, violence erupted in Nuh, Haryana after the Bajrang Dal and Hindu Vishwa Parishad took out a procession brandishing weapons and shouting ‘provocative’ and ‘abusive’ slogans. Eventually, some residents attempted to stop the procession, and ‘threw stones’ and this snowballed. Both Hindus and Muslims were impacted by the violence. In response to the violence, the homes, and shops of predominantly Muslims were demolished by the state. Municipal authorities stated that the buildings were demolished because these encroached on government land and that they had evidence about the involvement of the owners of these homes and shops in the ‘riots’. Anil Vij, the Home Minister of Haryana responsible for maintaining law and order in the state, remarked on this strategy, ‘[i]laj mein bulldozer bhi ek karavayi hai (bulldozer is part of the treatment).’
It is evident when we pay attention to this political context including speeches of government officials that punitive demolitions are conceived as a form of extra-judicial ‘punishment’.
More generally, a punishment refers to something that is undesirable or unpleasant in response to behaviour considered unacceptable (for more on this, see Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs, ch 5 page 113). In the context of punitive demolitions, state officials have used these as a tool to teach people a lesson when their behaviour, or perhaps even their very being (see, Usha Ramanathan on status offenders), is considered undesirable or unacceptable. These demolitions, termed ‘punitive’ therefore fit well within the framework of ‘punishment’.
Punitive demolitions as treatment
Given that this ‘punishment’ is not prescribed under the law, we can, in any case, consider punitive demolitions as a form of ‘treatment’. Treatment is a wider term than punishment (see, again, Mavronicola 113) and therefore likely to capture punitive demolitions even if these aren’t considered ‘punishment’.
Suffering, debasement and indignity of punitive demolitions
Punitive demolitions, whether considered treatment and/or punishment, fulfil the substantive factors used by the Supreme Court to identify CIDT/P.
First, these involve pain, suffering and trauma. Demolishing people’s homes involves suffering. Not only does it result in material deprivation – depriving people of the brick and mortar of their homes and all material things within these – but also result in loss of a place that is deeply valuable for people.
Second, these involve humiliation, debasement or degradation, or misrecognition harms. It must be acknowledged that punitive demolitions are overwhelmingly experienced by Muslims in India. The discriminatory nature of punitive demolition fits within the misrecognition framework, as treating some (here, Muslims) as less worthy of recognition and respect (see Fraser and Honneth for more on misrecognition).
Overall, these impinge on human dignity. In the case law on torture and cruelty, the Supreme Court has seemingly adopted a Kantian notion of human dignity, recognising that each person has intrinsic value that must be respected (see Pritam Baruah). Punitive demolitions strike at this sense of human dignity by devaluing Muslims and their homes. The ‘high-handed’ manner in which these demolitions are carried out indicate the lack of respect for the intrinsic worth of some people and their homes.
In the context of cruel punishment, jurisprudence from around the world, including India, has suffered from a ‘legitimacy loop’ or circularity of reasoning (Mavronicola). Punishment is conclusively unlawful if it crosses the requirements of CIDT/P – it involves suffering, degradation and a violation of human dignity. Yet punishment may not be inhuman or degrading if it involves an inevitable element of suffering or humiliation connected with legitimate treatment or punishment. Consider an abstract example: if imprisonment is a legitimate punishment, then the suffering and humiliation inherent in imprisonment may not be considered as amounting to torture or CIDT/P. More concretely, in Sunil Batra, the Supreme Court considered arbitrary uses of bar fetters as cruel and inhuman; but permitted justified uses that met procedural safeguards. Arbitrary uses of bar fetters were considered a ‘cruel process’, inflicting ‘trauma’, and a ‘total assault on the human flesh, free movement, and sense of dignity’; but the Court did not consider ‘justified’ uses of bar fetters in the same manner. Fortunately, we need not be concerned with this legitimacy loop where punitive demolitions are concerned, because punitive demolitions are not legitimate punishment – punitive demolitions have not been prescribed as punishment under any law.
Conclusion: absolute prohibition
Once we accept that punitive demolitions involve suffering, degradation and a violation of human dignity because of the deliberate destruction of homes, discriminatory targeting of Muslims, and high-handed manner in which these are carried out, it follows that these are absolutely prohibited as cruel, inhuman, degrading.
Courts in India have often offered compensation as a remedy in cases of torture and CIDT/P (for example, Nilabati Behera, Dr Mehmood Nayyar Azam). The Division Bench of the Supreme Court in this case repeated that trend by ordering compensation of 10 lakh each to the appellants.
Overall, the order is significant in enabling us to view punitive demolitions not only as a violation of people’s right to shelter and housing, but also through the lens of cruelty and torture.
