October 7, 2022

Lukmaan IAS

A Blog for IAS Examination

TOPIC: WHETHER THE STATE-SPONSORED DEMOLITION DRIVE VIOLATE THE CONSTITUTIONALISM AND RULE OF LAW

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THE CONTEXT:In the past few months, there has been a steep increase in the number of demolitions carried out by the state using bulldozers without serving appropriate notices to the parties involved.This has generated a debate whether there is Constitutionalism and the Rule of Law in the country. This article analyzes this debate in detail while looking into the tenets behind the state-sponsored demolition drives, its impact on the psyche of the society and the future of a harmonious social fabric.

ILLUSTRATIONS OF RECENT DEMOLITION DRIVES

COMMUNAL CLASHES AFTER THE RELIGIOUS PROCESSION

  • The incident was in Delhi’s Jahangirpuri, where the North Delhi Municipal Corporation (MCD) decided to demolish the houses of alleged encroachers.
  • In fact, ‘anti-encroachment’ drives were seen in several locations including Shaheen Bagh which had seen communal clashes on Ram Navami in April 2022.
  • In April, a similar drive was seen in Gujarat when the Himmatnagar civic body demolished kiosks, shacks and portions of shops as part of its own ‘anti-encroachment drive’.
  • The administration of Gujarat’s Anand district, too, undertook such an exercise, where structures belonging to people allegedly involved in the Ram Navami clashes were razed.
  • A similar drive was also undertaken in Madhya Pradesh’s Khargone, another site of communal clashes in April. Another example of a demolition drive in Madhya Pradesh took place in the Jirapur village, where 48 houses were razed after the authorities identified these houses as encroachments over government land.

PROTESTS AGAINST CUSTODIAL DEATH

  • In June 2022, the Assam administration demolished houses of people who were allegedly involved in setting fire to a police station while protesting an alleged custodial death. The demolition took place in Salonabari in Assam’s Nagaon district.

PROTESTS IN THE AFTERMATH OF PROPHET REMARK ROW

  • The house of an activist associated with the Welfare Party of India was demolished in Prayagraj who was allegedly involved in the violent protests that erupted in Prayagraj over the remarks on Prophet Muhammad.

JUSTIFICATIONS GIVEN BY THE GOVERNMENT FOR THE DEMOLITION DRIVES

IN CONFORMITY WITH LAWS

  • The State of Uttar Pradesh has submitted before the Supreme Court that the recent demolitions carried out in Kanpur and Prayagraj were done by Local Development Authorities strictly in accordance with the Uttar Pradesh Urban Planning and Development Act, 1973.

PRIOR NOTICE GIVEN

  • The state governments have submitted that prior show cause notice, demolition notice etc. for the illegal construction was given to the encroachers and also adequate opportunity was provided to them.

DEMOLITION IS A CONTINUOUS PROCESS

  • The state governments have rejected any argument which tried to give such demolitions as retributive and against one particular community after the aftermath of riots and protests. The state government stated that such kinds of demolition drives are carried out from time to time against illegal constructions.

CREATING DETERRENT

  • The government said that such demolition drives create the deterrence in the society against the constructions which are illegal and/or do not conform to the permissions granted for the construction.

 CONCERNS RAISED BY SUCH ACTS OF DEMOLITION

DEMOLITION UNDERMINES CONSTITUTIONALISM

  • Constitutionalism is the doctrine often associated with the political theories of John Locke. It says that government powers should be legally limited and its authority or legitimacy depends on observing these limitations.
  • Constitutionalism recognizes the need of limiting the concentration of power in order to protect the rights of groups and individuals. In such a system, the power of the government can be limited by the constitution – and by the provisions and regulations contained in it – but also by other measures and norms.
  • The present actions taken by the state goes against the idea of limited government. The government cannot be absolute and it has to act within the constitutional boundaries. The government seems to trespass on the legal protections of the statute by taking unilateral  actions.

VIOLATES RULE OF LAW

  • Dicey’s concept of Rule of law is a legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behaviour, including behaviour of government officials.
  • Rule of Law demands non-arbitrary action by the government and the laws shall be applied equally irrespective of religion, race, caste, sex, place of birth or any of them.
  • The present actions of the state seem to be in violation of Article 14 of the Constitution of India (Equality before law) as the laws are applied arbitrarily and the appropriate opportunities were not given to defend the constructions.

VIOLATE ARTICLE 300A

  • Article 300A of the Indian Constitution states that no person shall be deprived of his property save by the authority of law. It protects an individual from interference by the State and dispossesses a person of the property unless it is in accordance with the procedure established by law.
  • The recent acts of demolition are prima facie seen as antithetical not only to Article 300A but to the spirit of the Constitution as a whole.

RETRIBUTIVE ACTIONS AND COLLECTIVE PUNISHMENT

  • For any act done by any individual which is in contravention to the laws or against the state, the family members and/or the section of the community shall not be punished. Such punishments are against the natural law of justice. The present case of the demolition of homes and shops of alleged culprits of communal riots is also seen as a sign of retributive justice.

MUNICIPAL AND STATE LAWS RELATED TO ANTI-ENCROACHMENT DRIVES

DELHI

  • Section 343 of the Delhi Municipal Corporation Act, 1957 states that notice needs to be served to the parties before the demolition of any building.
  • It also states that the occupant has to be given 5-15 days before the commissioner himself orders the demolition of the structure.
  • The proviso of the Section states that no order of demolition shall be made unless the person has been given, by means of a notice served in such manner as the commissioner may think fit, a reasonable opportunity of showing cause why such an order shall not be made.

MADHYA PRADESH

  • As per Madhya Pradesh Bhumi Vikas Rules, 1984, the authorities are required to serve notice to the person supposedly violating said rules, which prescribe a period of ten days for the violator to stop the violation.

UTTAR PRADESH

  • Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 requires the affected person to be heard and given 15 days prior notice before proceeding with the demolition. Besides this, the Act allows a person aggrieved with the order of demolition to appeal within 30 days.

DEMOLITION DRIVES AND INTERNATIONAL LAWS

UDHR

  • Article 25 of the Universal Declaration of Human Rights (UDHR) states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care…”
  • Article 12 of UDHR prohibits arbitrary interference in an individual’s right to property. It also stipulates that “everyone has the right to the protection of the law against such interference or attacks”.

ICCPR

  • Article 17 further provides that everyone has the right to own property alone as well as in association with others and that no one shall be arbitrarily deprived of his property. Thus, arbitrary interference with an individual’s property is a gross violation of the International Covenant on Civil and Political Rights (ICCPR)

ICESCR

  • Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. Under this article, countries are under an obligation to take “appropriate steps” to ensure the realisation of these rights.
  • The rights recognised under ICESCR, according to Article 4, can be restricted by States only if the limitations are determined by law in a manner compatible with the nature of these rights and solely to promote society’s general welfare.

UN HUMAN RIGHTS OFFICE

  • According to the UN Human Rights Office, an integral element of the right to adequate housing is ‘protection against forced evictions.
  • It defines ‘forced evictions’ as ‘permanent or temporary removal against the will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’.
  • The right to adequate housing also entails freedom from arbitrary interference with one’s home, privacy, and family.

JURISPRUDENCE AND DEMOLITION/ENCROACHMENT

SUPREME COURT

  • In a landmark judgment passed by the Supreme Court in the case of Olga Tellis vs Bombay Municipal Corporation, the top court observed that the right to life, guaranteed under Article 21 of the constitution, also includes a person’s right to live with dignity, housing and livelihood. The procedure of eviction should lean in favour of procedural safeguards which follow the natural principles of justice like giving the other side an opportunity to be heard. The right to be heard gives affected persons an opportunity to participate in the decision-making process and also provides them with a chance to express themselves with dignity.
  • Another judgment was passed by the Supreme Court in 2019 in Municipal Corporation of Greater Mumbai & Ors. v M/S Sunbeam High Tech Developers Private Ltd. wherein the court held that the government authorities need to follow proper procedure for demolition.
  • Most recently in the Jahangirpuri demolition drive against encroachments, the Supreme Court ordered a stay on demolition and asked the authorities to maintain a status-quo.
  • In Uttar Pradesh also the court asked the government not to carry out demolition activities except in accordance with the procedure established by Law.

DELHI HIGH COURT

  • The Delhi high court, in 2010, passed a judgment in Bal Kishan Das vs Municipal Corporation of Delhi wherein the court said that serving a show-cause notice to the parties is a mandatory requirement.
  • The Delhi high court delivered another judgment in 2010 upholding the practice of the issuance of notice before demolition, in the case of Sudama Singh & Others vs Government of Delhi & Anr. The court had held that before the government authorities decide to evict someone from their house, they need to provide for an alternate accommodation where basic civic amenities that uphold their right to life and dignity, are available.This got crystalised in the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015.
  • In Ajay Maken vs Union of India (2019), the Delhi High Court held that no authority shall carry out an eviction without conducting a survey, consulting the population that it seeks to evict and providing adequate rehabilitation for those eligible.

HIGH COURT OF MADHYA PRADESH

  • In Arun Bharti vs The State Of Madhya Pradesh by the Madhya Pradesh high court.  The court had held that the necessity of compliance with the principle of natural justice of audi alteram partem (‘Let the other side be heard’) by affording a reasonable opportunity of hearing, is inherent in the provisions of Section 248 of the Madhya Pradesh Land Revenue Code, 1959.

LEGAL FRAMEWORK TO DEAL WITH DESTRUCTION OF PROPERTY

  • We have one precedent where the apex court agreed to fix liability on persons accused of damaging public property. The judgment was passed by the Supreme Court in 2009 in the case Destruction of Public & Private Properties vs State of Andhra Pradesh & Ors. In the aforesaid judgment, the Supreme Court had observed that public and private property is often damaged by the invocation of political processions, illegal demonstrations, strikes, bandhs and protests in the country, and that strict legislation is required to prevent it.
  • In absence of any statute in 2009, the court had passed certain guidelines in which there was also a mention of holding perpetrators liable:
  • ü  “The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established… The liability will be borne by the actual perpetrators of the crime as well as organizers of the event giving rise to the liability – to be shared, as finally determined by the high court or Supreme Court, as the case may be.”
  • Nowhere, however, does the judgment grant government authorities the power to demolish properties without notice. It only states that if a person is a perpetrator or one of the organizers of the crime, he will be held liable for up to twice the amount of damages liable to be paid.
  • Interestingly, the aforesaid judgment has also been used by ruling party supporters to justify the Uttar Pradesh government’s actions against the attachment of property of ‘rioters’, even though the judgment does not allow the state to attach said property. The Uttar Pradesh government came up with an ordinance “The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020”which empowers the state government to constitute one or more claims tribunals to decide compensation claims for damages to any public or private property due to riots, hartals, bandhs, protests, or public processions.
  • The Nariman Committee’s (formed after the Destruction of Public & Private Properties vs State Of Andhra Pradesh & Ors.) recommendations dealt with extracting damages for destruction. Accepting the recommendations, the court said the rioters would be made strictly liable for the damage, and compensation would be collected to “make good” the damage. The apex court explicitly vested the responsibility of setting up machinery to investigate the damage caused with the high court and, in case more than one state is concerned, the Supreme Court, not the government.

DEMOLITION, CONSTITUTIONALISM AND RULE OF LAW – AN ANALYSIS

The actions of state and local authorities to bulldoze shops and homes in riot-hit neighbourhoods citing “illegal encroachment” raises major legal concerns. Such actions show a disregard for the due process of law and established judicial precedents regarding evictions. It conveys the use of brute state power for collective punishment undermining the basic tenets of criminal law. This increases the trust deficit between the state and its citizens, as the state is perceived to be the perpetrator and not the protector of human rights and dignity. Prejudiced state action towards one particular community might lead to social disharmony and might aggravate communal tensions.

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 by the occupant. The other two arms of the state shall adhere to various judicial pronouncements and constitutional provisions and shall not resort to arbitrary actions which go against the very idea of Sabka Saath, Sabka Vikas ,Sabka Vishwas and Sabka Prayas. However, the undue haste, the manner and context of the demolitions, the targeted approach to a particular community etc seems to indicate that some states have decided to make bulldozers as instrument state policy. Such an approach is nothing but absolutism and hence antithetical to Constitutionalism and rule of law.  State is a benevolent institution which must not act like private money lenders or organised gangs who act with vengeance and revenge.

THE WAY FORWARD:

  • Constitutional morals shall be the guiding principles for state policies. Mere executive fiats cannot be used to take away a person’s property. While it is inherent for a sovereign state to exercise its power of eminent domain over private property, the deprivation of the property should be for a public purpose and shall be subject to judicial review.
  • As the custodian of India’s constitutional order, it is high time that the judiciary acted and imposed necessary checks on the unbridled exercise of power by the executive. Courts can also refer to international covenants to counter the nationalist-populist discourse.
  • The reforms in laws shall be modelled along the lines and furthering the idea of “Good Governance” as propounded by the World Bank which suggests the participative law-making in the modern liberal democratic political order.
  • The Government shall not act in any way which distorts the fraternity and must ensure the dignity of the individual. The idea of punishment is reformative in nature but the present state actions are perceived as vindictive in nature. The state shall also restrain itself in affecting punitive actions and shall be just and reasonable for the greater social good.
  • The state shall be even in the application of the law and must not distinguish on varied lines such as rich/poor, on a communal basis, region, etc.
  • The Latin American doctrine of “an unconstitutional state of affairs” can also be given a thought.

The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution.”

THE CONCLUSION:Any justification for a demolition drive, as a penal consequence of 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.It is imperative for the state as well as the citizens to abide by the constitutional standards and present a glaring example of the spirit of Constitutionalism.

Mains Practice Questions:

  1. How far do you agree with the view that the recent demolition drives conducted by the states in India are against Constitutionalism and the Rule of Law? Justify your stand.
  2. Demolition drives are not only against the law of the land but also against the international covenants on Human Rights. Argue.
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