Politically Motivated Demolition Drives Threaten Rule Of Law And Principles Of Natural Justice: Legal Experts

This is the cover story for Outlook's 16 May, 2022 magazine issue 'Demolition Row'. To read more stories from the issue, click here

On April 20, Block C in the national cap­ital’s Jahangirpuri—which literally sits on a garbage dump yard—was in the media focus. Many inhabitants woke up to the noise of North Delhi Municipal Corporation (NDMC) bulldozers rolling into their locality, followed by media OB vans. While the demolit­ion drive was underway, Communist Party of India (Marxist) leader Brinda Karat defiantly blocked a bulldozer as she waved a copy of a stay order by the Supreme Court. A few metres away, Ganesh Gupta, owner of a partly demolis­hed two-floor structure from where he ran a juice shop, lamented in front of cameras: “My shop wasn’t illegal.” Aggrieved inhabitants rued that notices were not issued to them by mun­ic­ipal authorities before the “anti-encro­a­chment drive” was carried out.

ALSO READ: Tentacles Of Power

Incidentally, the NDMC action came a day after it received a letter from Delhi BJP chief Adesh Gupta, which he later shared on Twitter. In it, he demanded that illegal encroachments by “rioters and antisocial elements” be identif­ied and bulldozed. The letter specifically refer­red to a Hanuman Jayanti Shobha Yatra that was taken out in Jahangirpuri on April 16. The procession had resulted in a communal flare-up that left nine persons injured.

ALSO READ: Crushing Claws: How The Bulldozer Turned Into A Political Tool

A majority of houses, shops and carts dama­ged in the Jahangirpuri demolition drive belo­n­ged to Muslims. Similar anti-encroachment dri­­ves were conducted in communal violence-affe­c­ted Khargone (Madhya Pradesh) and Him­matnagar (Guj­a­­rat) recently. Questioning their legitimacy, leg­­al experts argued that not only do such politically motivated demolition drives threaten the rule of law and principles of natural justice, but they also flout Supreme Court guidelines. Acc­o­r­ding to them, both the Delhi Municipal Corp­o­r­ation Act, 1957, and Delhi Development Act, 1957, debar authorities from demolition without serving prior notices. Other states too, they added, have similar laws.

ALSO READ: Bulldozers In Mumbai: The Capital Of Crushed Dreams

Culture of impunity

On April 21, Ganesh Gupta moved the Supreme Court, claiming that the demolished shop was allotted by the Delhi Development Authority in 1977-78. “Since then, we have been regularly paying all fees and taxes,” Gupta’s son Rajan tells Outlook, adding that they tried to show all the documents to the authorities when their shop was being demolished—but to no avail.

ALSO READ: Demolition Politics: In Rajasthan’s Alwar, Even The Sacred Is Not Spared

Earlier this month, in MP’s Khargone, among several houses demolished by the state government to punish those allegedly responsible for violence on Ram Navami, was Hasina Fakhroo’s house—that was constructed under the Prad­han Mantri Awas Yojana. While hearing Gupta’s petition, the apex court ordered status quo, issuing notices to the Union of India and states of MP, UP and Gujarat in response to another pet­ition filed by Jamiat Ulama-i-Hind against the authorities in different states that have demolished houses of people accused of the crimes.

Among houses in Khargone, MP, demolished by the government after the Ram Navami violence, was Hasina Fakhroo’s house—that was built under the PMAY.

In Jahangirpuri, besides the Guptas, there are scores of distraught rehri-walas who have lost their livelihoods. They too were not served pri­or notices by the authorities, they lament. Des­­c­ribing recent demolition drives as “mala­f­ide”, advocate M.R. Shamshad, who had also fil­ed a writ petition against NDMC’s drive in Jah­­­a­ngir­puri, tells Outlook, “The demolition dri­ves are being carried out against a particular political background. Encroachment is not res­t­ricted to a particular area in any part of the cou­ntry. Tar­geting just one area where the maj­ority of the population belongs to a particular community can’t be justifiable.”

ALSO READ: Judiciary Backing The Executive On Demolitions Is More Painful

Even though the Supreme Court had ordered a halt to the Jahangirpuri demolitions, the dri­ve continued for over an hour in the presence of the NDMC mayor and Delhi Police. “Autho­ri­t­ies should start anti-encroachment drives from posh areas like Vasant Kunj. Selective approach is the problem,” he says, asking, “Why are these drives limited to only those areas where mosq­ues are situated? Only members of a particular community are being shown as encroachers.” In Jahangirpuri, the front gate of a mos­q­ue was demolished but a temple on a footpath nearby was left untouched.

Rehris, which are sources of livelihood, can’t be termed as encroachments, says Shamshad. “If the authorities want to turn it (Jahangirp­uri) into New York, then they must know that citizens over there are entitled to unemploym­ent compensation. The government takes care of their daily needs,” he remarks, describing the starkly different state of affairs in the country.

ALSO READ: Demolishing Homes Of Poor And Minority Bulldozes Human Rights

Referring to the legal processes to deal with criminal activities, he adds, “If somebody has a criminal background that can’t justify bulldo­zer action.” Notably, Wasim Sheikh, one of the alleged stone-pelters identified by Madhya Pra­desh Police last month, had both his hands amputated in 2005 following an accident. During the demolition drive, his shop was also bulldo­zed by the administration. Similarly, all three Muslim men named in the Khargone violence were already in jail since March 5. The trio has been reportedly accused of setting a motorbike on fire and charged with rioting at the same police station where a case of attempted murder was registered against them.

‘Unauthorised colonies’

According to Shamshad, over 70 per cent of Del­hi’s population lives in unplanned and unre­gularised settlements. The 2008-09 Delhi eco­n­­omic survey had disclosed that only 23.7 per cent of the city’s total population lived in pla­n­ned colonies. Ahead of 2020 Delhi assembly elections, the BJP had promised to legalise unauth­o­rised colonies in the city as the Union government announced PM-UDAY, a scheme to confer property rights to inhabitants of unauthorised non-affluent colonies.

ALSO READ: Selective Demolition: When Jammu’s Gujjars Faced The Demolition Squad

Advocate Dushyant Dave, who filed a plea in the Supreme Court seeking its immediate int­ervention in Jahangirpuri, underlined the Nati­o­nal Capital Territory of Delhi Laws (Special Pro­visions) Act 2011, which was extended by the BJP government to December 2023. The law provides protection from punitive action for unauthorised constructions. “Under this law every unauthorised structure is protected in Delhi—whether farmhouses, jhuggi-jhopris, urban villages or other areas,” he tells Outlook. “Delhi has 1,731 illegal colonies in which 40-50 lakh people live. These include Sainik Farms and some dairies. But they (authorities) are not demolishing these.”

ALSO READ: Patna’s Glorious Past Is Being Erased As Heritage Buildings Face Demolition

According to legal experts, the apex court in 1985 had upheld that not serving notice to affe­cted parties violates “the principles of natural justice”, and any deviation from the due process of law was bound to result in an unjust decision. In fact, the Delhi high court had ruled in Febru­ary 2010 that ahead of any eviction, government agencies should identify and rehabilitate eligible people. In 2017, this was eventually upheld by the Supreme Court. The Delhi high court in 2019 rei­terated this in Ajay Maken and others Vs Un­i­on of India and others. The apex court’s judgm­ent was inspired by the UN Special Rappor­t­e­ur’s Bas­ic Principles and Guidelines on Develop­m­e­n­t­-­based Evictions and Displacement, which state that evictions shouldn’t render homeless people even more vulnerable to the violation of other basic human rights.

Wholly unconstitutional?

According to Shamshad, under Article 21, evictions and demolition of houses and businesses violate a citizen’s right to live with dignity. In his petition, senior Supreme Court lawyer Dus­h­yant Dave, too, stressed that the denial of an opportunity to be heard violates the rights of affected people under Article 14 of the Constitu­t­ion, which ensures equality before the law.

ALSO READ: Crushing Dreams And Livelihoods

Maintaining that the growing trend of ‘bulldo­zer justice’ is a direct threat to due process of law and principles of natural justice, Dave tells Outlook, “The culture that has developed rece­n­tly is really shocking. We are against eye-for-eye and tooth-for-tooth laws. Let us assume for the sake of argument that stone pelting had taken place. Still, it’s the judiciary that has to decide who had pelted the stones and who is guilty of rioting. Only then can punishment be imposed, that too, as provided under the Indian Penal Code, which doesn’t provide punishment for demolition of homes and shops.”

Dave compared the growing trend with fake encounters. “In a fake encounter, you take away life. Here you take away both shelter and right to livelihood. It is wholly unconstitutional and a complete negation of the rule of law,” he says.  Reacting to the recent demolition drives in Del­hi and some BJP-ruled states, he says, “It’s a blot on Indian democracy. Nobody has the aut­h­ority to bulldoze anybody’s home or shop with­out giving proper notice or passing orders after hearing the person concerned or without offering an opportunity for the person to appeal against the decision. There are several stages you have to comply with.”

ALSO READ: Demolition Diary: 'If I Am Illiterate Today, It Is Fault Of The Government'

“In Delhi, for example, Section 353 of the Delhi Municipal Corporation Act has provisi­o­ns saying any demolition order should be pas­sed after the accused person is heard. And after passing the order, the person concerned must be given 15 days’ time,” he says, adding that “The Supreme Court has also interpreted that natural justice should be upheld against draconian powers, and that before passing such ord­ers, the accused must be given a hearing.”

In November 2000, the then Prime Minister Atal Bihari Vajpayee unilaterally declared cess­ation of combat operations against militants in Jammu and Kashmir during Ramzan. Does the bulldozing of homes and properties of peaceful citizens during the holy month indicate depa­r­t­­ure of governance from compassion? At Jaha­n­­gir­puri, many famous news anchors were seen riding JCBs and justifying the demolition drive. Even though the area is dominated by Bengali and Bihari Muslims, a section of influe­ntial med­ia portrayed them as illegal immigra­nts from Bangladesh. While demonising the resid­e­nts, many went to the extent of labelling Jahan­girpuri Block C as a “chor colony”, inhabited by thieves and robbers.

“Everywhere, bias is writ large against the minority community. They are citizens of this cou­ntry, not aliens. You can’t just wish them away by saying they are Bangladeshis,” says Dave. Maintaining that India is on its way to become a fascist country, he attacks the media’s role. “When history is written in future, the role of this section of media would definitely be portrayed as the single biggest contributor to the fall of democracy in India. This media is prom­o­ting hatred and negation of the rule of law, whe­r­eas its role is to fiercely protect the dignity and fundamental rights of citizens.”

The Hanuman Jayanti Shobha Yatra in Jahan­girpuri was carried out by Vishwa Hindu Pari­s­had (VHP) without police permission. Dave won­dered, “Delhi Police has filed an FIR against the VHP and arrested one person. Videos circulating all around show many others brandishing swords, lathis and other objects in that process­ion. Yet, nobody is talking about arresting these people and demolishing their homes.” Appea­l­ing to the PM to intervene and stop “motivated demolition drives”, Dave says, “A State shou­l­dn’t ever be the perpetrator of violence against its own citizens. Our image is suffering the wor­ld over, and it will have serious repercussions.”

***

• 23.7% of the city’s total population live in planned colonies.
• 1,731 illegal colonies in Delhi, where 40-50 lakh people live

(This appeared in the print edition as "The Maws of Justice")

For a deeper understanding of the legal and social issues around bulldozer justice, read Outlook's reportage and commentary on the issue: Click Here.