As bulldozer threats rise, what the Rule of Law says on demolitions

The nation has been witnessing a frenzy of demolition drives for the past few weeks. What started in Uttar Pradesh a few years back has now spread to Madhya Pradesh and Gujarat, where communal flare-ups were followed by demolition drives. It also reached the national capital this week. After a clash between communities, municipal officers started razing houses and shops at Jahangirpuri in north-west Delhi on April 20. The Supreme Court, however, ruled that the status quo should be maintained till further orders.

Human right activists and jurists have voiced concerns that the demolition drives are targeting a particular community and are a form of ‘collective punishment’. It is too early in the day to give a definitive opinion on the issue. Nevertheless, the manner in which the demolition drives have been conducted, clearly gives rise to serious ‘due process’ concerns.

Vast swathes of the population of our country reside in unauthorized localities, some in slightly better accommodation and others in makeshift structures. These colonies have mushroomed over several decades with the active or passive collaboration of local administration and politicians and often are perceived as consolidated vote banks. Though legislative frameworks and guidelines exist in the states to tackle these challenges posed by illegal construction, leading to a strain on the area’s infrastructural framework, real solutions have been seldom implemented in true letter and spirit.

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In the National Capital Territory, for example, the Delhi Municipal Corporation Act, 1957 contains an elaborate procedural mechanism to deal with illegal construction. There is a mandatory requirement of a notice to the illegal occupant to justify their occupation. The requirement of serving a notice and providing an opportunity of being heard to the affected person is a sine qua non before the lawful taking of any coercive action. The requirement of notice is not in the realm of procedure, but is a fundamental principle of natural justice and a facet of the rule of law.

In 1979, the 44th amendment to the Constitution did away with the right to property as a fundamental right but introduced Article 300A, which retained the right to property as a constitutional right. Article 300A categorically states “No person shall be deprived of his property save by the authority of law”. Subsequent judgments of the Supreme Court have reiterated that any deprivation of property by the State should not only have a statutory sanction, but also should adhere to touchstones of ‘reasonableness’ and ‘due process’.

In 1985, in the landmark judgement of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors, the Supreme Court, while dealing with the question of why notice was a legal requirement and concomitantly the opportunity of being heard essential before the process of evicting the residents of an illegal slum, basti or pavement dwelling could begin, observed that even a trespasser should be given a reasonable opportunity to depart before force is used to expel them.

In 1978, in the now famous case of Maneka Gandhi vs Union of India, the Supreme Court, while interpreting the scope of Article 21 of the Constitution, stated that the “due process of law” is an integral part of “procedure established by law”, explaining that such procedure must be fair, just and reasonable. If the procedure prescribed by law is fanciful, oppressive and arbitrary in nature then it should not be considered procedure at all and thus not all the requirements of Article 21 would be satisfied.

The Supreme Court once again in a case titled Municipal Corpn., Ludhiana v. Inderjit Singh categorically stated that if the requirement of giving notice is provided under a municipal legislation, then this requirement must be necessarily complied with. The Apex Court of the country has made it unambiguously clear that no authority can directly proceed with demolitions, even of illegal constructions, without providing notice and an opportunity of being heard to the occupant.

There is no gainsaying that the authorities are empowered to take action against illegal construction or encroachment within the paradigm of the legislative framework and the Constitution. Though the authorities have termed the demolitions as removal of encroachment, leaders of the ruling dispensation have stated that these drives are targeted towards the people suspected or accused of committing crimes. The Home Minister of Madhya Pradesh allegedly stated that “If Muslims carry out such attacks, they should not expect justice”. Such statements clearly amount to furthering the notions of collective punishment. The idea of collective punishment, in any manner, is prohibited under several international documents, including the Geneva Convention of 1949, which was ratified by India in 1950. It is saddening to witness that the States are inflicting a form of punishment on its own citizens, which cannot even be imposed upon the prisoners of war under international law.

The demolition as a remedial measure of state action against an accused is completely unsanctioned in Indian law. There is absolutely no penal legislation in the country that provides for demolition as a penalty of any offence.

Any justification for a demolition drive, as a penal consequence to a criminal act is totally against established canons of criminal justice. The conduct of demolition drives, as a retaliatory measure, even with the avowed object to curb violence is a clear act of subversion of the principle of rule of law. The recent demolition drives in Madhya Pradesh, Uttar Pradesh, Gujarat and Delhi without complying with the requirement of notice thus prima facie appear to be violative of constitutional rights of the affected persons as well as in the teeth of settled law laid down by the Supreme Court.

(The writer is a Senior Advocate practicing in the Supreme Court)

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