Even as the Punjab and Haryana High Court’s suo moto intervention last month brought the ongoing demolition drive at Nuh to a halt, legal experts vehemently assert that no such demolitions can be carried out without adhering to the due process of law.
The demolitions were undertaken by the district administration just three days after Nuh—a district where 79 per cent of the population belongs to the Muslim community, had witnessed communal violence during a yatra organised by the VHP and the Bajrang Dal on 31 July.
On 7 August, the Punjab and Haryana High Court bench comprising Justices G S Sandhawalia and Harpreet Kaur Jeewan, in a suo-moto action, raised questions on the demolition drive and ordered it to be stopped until further orders. It was claimed by the authorities that the drive was meant to raze alleged illegal constructions but they were carried out without any prior notice to the occupants.
Advertisement
Making some strong observations on the manner in which the drive was started, the Court said “The Constitution of India protects the citizens of this country and no demolitions as such can be done without following the procedure prescribed in law.”
The hasty actions of the state machinery and also the local administration at Nuh to bulldoze shops and homes citing ‘illegal encroachment’ have raised major legal concerns. Several legal experts have hailed the intervention of the High Court to stop the reckless demolitions, which in the case of Nuh, were targeted against a particular community. Former Supreme Court Judge Justice Deepak Gupta says ‘bulldozer justice’ has no place in a civilised society and such an action cannot be justified under constitutional provisions or the law. “In India, we are ruled by the Constitution and the law. For every offence, the law prescribes a punishment and procedure. Therefore, without following the law, any action taken violates the Constitution and the law.” He points out that in most cases of ‘bulldozer justice’, the homes of the poorest of the poor were demolished. He adds, “Maybe they were unauthorised constructions. I'm not supporting unauthorised constructions though.”
Advertisement
Justice Gupta questions why similar action is not taken against the rich and the powerful who have built huge colonies within Delhi that are illegal. The next point Justice Gupta raises is that when bulldozers are used, you are punishing not just the person who owns the house.
He says, “Assuming that a person is guilty of having committed violence, he must be punished. But that must be in accordance with the law and not by demolishing his house even if it is illegally constructed. Furthermore, you are also punishing innocent children, the wife or the aged parents, who may have had nothing to do with it. This sort of punishment which involves punishing an entire society, a class or a family is unknown to Indian law and cannot be accepted.”
As per the affidavit filed in the High Court by the Nuh Deputy Commissioner, a total of 443 buildings, including 162 permanent and 281 temporary structures were demolished. The number of persons affected by the demolition drive was 354, of which 71 were Hindus and 283 were Muslims.
The Haryana government has defended its demolition drive in Nuh by saying no structure was razed against the law and that the exercise was "not remotely a case of ethnic cleansing".
Rajneesh Maniktala, senior advocate at Himachal Pradesh says, “Bulldozer demolitions are nothing but the absence of the rule of law. It is not the mark of a civilised society. There is no doubt that encroachment of public property is to be dealt with strictly. But that has to be done in accordance with the law and by the machinery established by the law.” He also cautions that many innocent people, who may have some right over the property, would suffer irreparable harm. They will lose the roof over their heads and consequently their livelihood.
Advertisement
He adds, “It is settled law that even a trespasser is entitled to a right of hearing. Olga Tellis' case centred on those deprived persons who had no option but to flock to urban places which provided a means of subsistence. They chose a pavement or a slum to live in. In an action to evict them, the Supreme Court recognised the principle of ‘Audi Alteram Partem’ i.e. hear the other side. It also emphasised the need to resettle those deprived persons keeping in view our constitutional goals.”
Subhash Gupta, a retired District and Sessions Judge from Jammu and Kashmir quotes Article 300 of the Constitution of India.
Advertisement
“Obviously, as a constitutional right, no person can be ousted from his property other than by the due process of law. In a democracy like ours, the right to shelter/residence shall be recognised by the government. To have a dignified life unlike simple animal existence is the mandate of Article 21 of the Constitution of India and it provides protection of life and personal liberty.”
The Supreme Court, he emphasises, in many judgements, has made it clear that no authority can directly proceed with demolitions, even that of illegal constructions, without providing notice and an opportunity for the occupant to be heard.
Principles of natural justice are to be followed by the state (authorities). It is the contention of all whose houses/buildings were demolished at Nuh that no prior notices were served to them. The demolitions came as a surprise. No opportunity of hearing was given to them.
Advertisement
Furthermore, there is a set procedure in the relevant provisions of the Code of Criminal Procedure (CrPC) for proceeding against the properties of those who are found to be involved in the commission of offences listed in the Indian Penal Code or other offences under special laws such as anti-corruption, narcotics and terrorism-related cases. The police force cannot get involved in illegal and politically motivated actions such as demolition drives on its own.
