By Yogesh Pratap Singh & Dr. Lokendra Malik
Seemingly, the essence of the rule of law is lost. The constitutionalism has died. Its legitimacy is being severely assaulted. This proposition owes much to the recent actions of a few BJP ruled states where governments have bulldozed houses and shops belonging to the Muslims for their alleged involvement in violence during Ram Navami processions. First, the bulldozer was symbolically used to threaten criminals especially belonging to minority community in Uttar Pradesh by Yogi Adityanath’s government when the Chief Minister was conferred the epithet “Bulldozer Baba” by the opposition parties during the recently held assembly election campaign. The success of Chief Minister Yogi ji stimulated other Chief Ministers to encash this novel design. Now, the epithet seems to have found a popular space in the political discourse where we got “Bulldozer Mama” and may get “Bulldozer Chacha” or “Bulldozer Tau” in future.
A few weeks ago, the Madhya Pradesh government demolished houses and shops belonging to the Muslims who were allegedly involved in violence during Ram Navami processions. The statement of Madhya Pradesh Home Minister Narottam Mishra i.e. “Jis ghar se patthar aaye hain us ghar ko pattharon ka hi dher banayenge (the house where the stones have come from will be turned into a pile of stones itself,” was a clear indication that the Madhya Pradesh government has begun its preparatory work for 2023 state assembly election. Another Bulldozer drive was initiated after the Delhi BJP chief Adesh Gupta wrote to the North Delhi Municipal Corporation (NDMC) to demolish the “illegal constructions of the rioters in Jahangirpuri Communal Violence and on April 21, a convoy of bulldozers along with hundreds of policemen rushed to Jahangirpuri in northwest Delhi to demolish buildings, petty shops, and the entrance gate of a mosque. The elections of Delhi Municipal Corporation are due and this will help the BJP to polarize Hindu votes.
Whether the government can use justification of one alleged offence to prosecute for another? To make it simpler, can the government penalize someone for alleged stone pelting by destroying their houses even if it is an alleged encroachment? The act of punishing someone for one alleged crime using a law made for another is against the basic tenets of criminal jurisprudence. To give punishment, there has to be a basis in law. This was one of the cardinal principles of legality of criminal law designed to guarantee the primacy of the law in criminal justice administration.
Sections 146 and 153-A of the Indian Penal Code deal with offences of rioting and promoting enmity between groups but this requires the police to lodge an FIR, investigate, arrest and prosecute those who are allegedly involved in the offence. And giving punishment is function of court, not the government’s job. The states like Uttar Pradesh and Madhya Pradesh have a specific law for recovering damages caused to public and private properties due to riots. However, summary demolition without following the due process of law has not only affected few families but frighteningly threatened the entire Islamic community of the Indian republic which acknowledges secularism as one of its cherished ideals.
Admittedly, every Municipal and Panchayat law makes provisions to deal with encroachments and illegal constructions. It provides for issuance of notice to the person concerned to remove the encroachment, giving an opportunity to submit objections, passing a reasoned order, a provision for an appeal and in case of rejection of appeal issuing another notice before the demolition squad is deployed. For instance, the Delhi Municipal Corporation Act makes clear provisions under section 317 and 322 & 343 where the Commissioner is supposed to issue notice to remove structures or fixtures onto streets with a minimum notice period of 5-15 days. Only Section 322 doesn’t require issuing notice because it involves removing temporary structures like stalls encroaching into public streets. In addition, provision is also made for an appellate tribunal to hear appeals against notices. The Delhi Laws (Special Provisions) Second Act, 2011 also gives protection against demolition without rehabilitation to Jhuggi dwellers. Further, Delhi Urban Shelter Improvement Board Act 2010, under which the Delhi Slum and JJ Rehabilitation and Relocation Policy was notified in 2017 also provides that removal of Jhuggis even when encroachment is on government land cannot be done without a rehabilitation policy in place.
Being the guardian of Fundamental Rights, the Supreme Court of India has sought to internalize the constitutional morality of power and has tried to play a soft or a sharp nudging role in ensuring a just and inclusive society whether it be human rights which includes right to shelter, social security, right to adequate nutrition, clothing, education and livelihood or gender justice, protection of marginalized section and minorities. The Olga Tellis case (1985) which was considered as the backbone of the jurisprudence on the right to livelihood and rights of slum dwellers as part of right to life directed that Municipal Corporation must follow due process and principle of natural justice except in exceptional circumstances. Later in Sudan Singh v. NDMC case (1989), hawking on roadsides was declared as integral part of “occupation, trade or business” under Article 19(1) (g) of the Constitution. In the case of Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan while dealing with the issue of trespass, the Apex Court noted that if the encroachment is of a recent origin, the requirement of principle of natural justice could be avoided on the ground that no one has a right to encroach upon public property and claim the procedure of opportunity of hearing which would be tedious and time-consuming. But in case of settled possession due process is a mandatory requirement.
From the recent actions taken by the governments of MP and MCD Delhi, it appears that most of the houses and shops that were demolished belonged to Muslims and the poor. In fact, the entire bulldozer movement, it seems, is being designed to target and threaten the Muslim community because it gives an outstanding electoral dividend. If that perception is wrong then the authorities concerned should publish the correct data. As long as the perception remains and is not contradicted it is fair to assume that this “novel electoral device” for removing encroachments and illegal constructions is targeted at the Muslim community. Those who faced demolitions in Delhi and MP got no time to appeal, contravening principles of natural justice. Whatever may be the compulsion, the rule of law and constitutionalism were buried by the MP government and MCD. A summary demolition bypassing the due process of law violated the Articles 14 and 21 of the Constitution which has ensured fair trial to criminals like Nathuram Godse and Ajmal Kasab.
The executive cannot become a judge, prosecutor and executioner in its own case. Every wrong doer has a constitutional right to defend himself in a trial conducted by a competent court of law. Justice needs to be done by the courts of law, not by the government. The bulldozer movement seriously undermine the mandate of the rule of law and controlled government. There is no reason to celebrate it as seen amongst majority community. In this scenario, only the Supreme Court and High Court judges with their constitutional protections can ensure that political and permanent executives apply laws judiciously and compassionately. The Supreme Court has rightly stayed the demolition in Delhi and it should also set a precedent to eliminate the “bulldozer culture” from our country to protect the Constitution, constitutionalism, human rights, minority rights, and the rule of law. The Muslims are not secondary citizens. They belong to India and India belongs to them. There is no place for Bulldozer Raj in our secular constitutional democracy. Let us conclude with these thought-provoking words of great jurist Justice H R Khanna in the St. Xavier’s College, Ahmedabad case: “The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done, as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality, and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution”.
About the authors: Yogesh Pratap Singh, Professor of Law, National Law University, Odisha & Lokendra Malik, Advocate, Supreme Court of India