The demolition drive in ‘new’ India has a lot in common with fake encounter killings. In both, the accused, the judge, and the executor are one and the same —the political executive. Both rest on populism that lacks constitutionalism. The rule of law is negated as people in power become a law unto themselves. Enormous violence manifests in the crudest form against the helpless individual(s). The disproportionality of action is the hallmark of the state’s action. Both are essentially the state’s admonition against dissent.
In Assam, in September 2021, thousands were evicted forcefully following a massive demolition scheme. This was openly justified by the Chief Minister of Assam. In April 2022, the nation witnessed the demolition of shops and houses in Jahangirpuri in Delhi. In the same month, in Khargone in Madhya Pradesh, it was following the Ram Navami violence that the District Administration demolished some residential houses “to teach the rioters a lesson”. Recently, Uttar Pradesh followed suit. In many parts of the country, including Maharashtra, Gujarat, West Bengal, and Karnataka, for one reason or the other, the bulldozer epitomised the state’s police power. Direct and immediate extermination of places of life and livelihood becomes the new normal.
Right to property, though not a fundamental right after deletion of Article 19(1)(f) of the Constitution, remains a constitutional right by virtue of Article 300A. In a demolition drive, it is also one’s right to equality, freedom and dignified life that are done away with. This amounts to the annihilation of fundamental rights.
It is a settled law that an eviction drive under any law can happen only by following due process. A reasonable opportunity for hearing after proper notice is the victim’s right. The requirement of notice while taking coercive action was highlighted by the Supreme Court in S. L. Kapoor v. Jagmohan (1980). In the classic decision in Olga Tellis (1985), the Supreme Court dealt with Section 314 of the Bombay Municipal Corporation Act and said that even a provision that dispenses with the requirement of notice can be validated only by reading the principles of natural justice into it. This will precisely mean that though a statute does not provide for the issuance of notice of eviction or demolition, generally, notice and hearing are constitutionally mandated. In Sunbeam High Tech Developers Case (2019), the Supreme Court reiterated that even an illegal construction cannot be illegally demolished. Fairness in state action is a constitutional imperative. In Municipal Corporation Ludhiana v. Inderjit Singh (2008), the top Court directed the Municipality to substantially restore a demolished building and to pay a huge amount to the victim as the cost of litigation.
Many municipal and state laws do contain provisions to ensure fairness in procedure and adherence to the principles of natural justice. Section 10 of the Uttar Pradesh (Regulations of Building Operators) Act, 1958, Section 27 of the Uttar Pradesh Urban Planning and Development Act 1973, Section 248 of the Madhya Pradesh Land Revenue Code, Sections 343 and 368 of the Delhi Municipal Corporation Act and many other provisions in similar enactments illustrate this point. Several High Courts have pronounced on these laws and that evolved a clear victimology in the Indian jurisprudence of demolition. The point, however, is the glaring dichotomy between the text of the law and judgments on the one hand, and their complete negation by the state at the ground level, on the other. The issue is, therefore, political, and ideological.
The United Nations, in the document titled, “The Right to Adequate Housing”, pleaded for “protection against forced evictions and the arbitrary destruction and demolition of one’s home”. It emphasised the Governments’ duty in the preservation of habitats. This, however, remained wishful thinking. Atrocious demolitions happened during war and invasion. Many territorial aggressions including Russia’s in Ukraine have destroyed thousands of structures. This is what Israel has been doing in West Bank and Gaza. Article 119 of the Defence(Emergency) Regulations of Israel empowers a Military Commander to forfeit any land, house, or structure when he suspects the commission of certain offences or even a possibility for it. This arbitrary provision and its repeated invocation have made thousands, including children, homeless. The question is, can a democracy do so against its own citizens?
Political power is often dangerously inhuman, and the very aim of the Constitution is to tackle this human destiny. Fairness in governance is guaranteed only when there is a suitable constitutional climate. The Constitution works not merely through its institutions. It works through the people. Prof. Upendra Baxi poetically said that India had at least seven constitutions by 2010 and was waiting for many more! He was, in a way, expounding the country’s constitutional history after Independence. He implied that the Constitution always transformed depending upon the political and ideological praxis that the nation held from time to time. Thus, the severe setback to the idea of the rule of law in contemporary India is essentially a setback to her constitutional culture. A house is not merely a property. It is life and livelihood. It hosts the wisdom of the old and the innocence of the children. It has, in it, the infiniteness of love, peace, and togetherness. A house is a unit of the nation. Therefore, every unfair demolition is a blow to our republic.
Lawyer, Supreme Court of India