Wednesday, February 28, 2024

Demolition Drives

The trend of authorities rushing to administer justice by demolishing the homes of accused without following due processes of law has been slammed by courts.

By Dr Swati Jindal Garg

A disturbing trend has emerged in various states where authorities are taking on the role of judge, jury and hangman and allegedly demolishing the houses of accused persons in order to teach them a lesson for the crimes they committed.

Recently, a video emerged where a 24-year-old man, Pankaj Tripathi, was seen thrashing his 19-year-old girlfriend after she asked him to marry her. The man, a driver, was a resident of Dhera village in the Mauganj area of Madhya Pradesh; the incident took place in the state’s Rewa district.

Following the incident, the state government ordered the demolition of his illegal house by a bulldozer. MP Chief Minister Shivraj Singh Chouhan immediately took to Twitter to announce that the accused had been arrested and his driving license cancelled. The town inspector was also suspended for allegedly trying to get the matter settled. “No one who commits atrocities on women in the land of Madhya Pradesh will be spared,” Chouhan tweeted.

According to the police, in the video, the accused is seen repeatedly kicking and slapping the woman. He was previously detained under IPC Section 151 (disturbing public peace) and later released. After the video went viral, a case was filed under Section 323 (voluntarily causing hurt) and other relevant provisions. The victim also filed a complaint against the person who shot and distributed the video, and a case was filed under the Information Technology Act, according to the police.

The larger question is whether the authorities were acting within law by demolishing the house of the accused. An eye for an eye and a tooth for a tooth is a maxim that has been labelled as primitive. The notion that crime and the punishment should be commensurate does not always work.

There have been other instances where authorities have rushed to administer justice and demolished the house of an accused without following the due process of law. The Gauhati High Court in a recent case stressed that punishment by bulldozing a house is not provided under any criminal law even if an agency is investigating a very serious matter. Chief Justice RM Chhaya of the Gauhati High Court made this observation while hearing a suo motu case regarding the demolition of the house of an accused in an arson case in Nagaon district of Assam following a series of events. Here, Batadrava Police Station was set on fire on May 21 by a mob due to the alleged custodial death of a local fish trader, Safikul Islam, 39, who was picked up by the police the night before. A day later, the district authorities demolished at least six houses, including Islam’s, using a bulldozer purportedly in search of weapons and drugs hidden beneath the structures. 

Coming down heavily on such conduct by the authorities, Justice Chhaya observed: “Even if a very serious matter is being investigated by an agency, bulldozing of a house is not provided under any criminal law.” Emphasising that it requires permission to even search a house, he said: “Tomorrow if you need something, you will dig up my courtroom.” 

The chief justice said that nobody would be safe if pulling down anyone’s house is permitted in the name of investigation. “We are in a democratic set-up,” he stressed. He also raised apprehensions that the 0.9 mm pistol that was recovered by demolishing the house, as submitted in the government affidavit, could have been planted. He maintained that incidents of such bulldozing of houses are done in movies, and even there, a search warrant is shown before the act. He equated the bulldozing to an act in a “gang war” and asked the home department to find better ways of carrying out investigations.

In another matter of a similar nature, Jamiat Ulama-I-Hind, a leading organisation of Islamic scholars belonging to the Deobandi school of thought, petitioned the Supreme Court under Article 32. It wanted relief against the demolition of commercial and residential buildings as punitive measures against those accused in riots. The petition filed was against the demolition of homes belonging to Muslims in Khargone, Madhya Pradesh, and Khambat, Gujarat, after riots broke out there between Hindus and Muslims during Ram Navami processions. The petition claimed that such an act went against the right of an accused to have a fair trial and was against the due process of law. The petition also averred that the government’s support for such punishment undermined the criminal justice system, including the role of courts. It sought directions for ministers, legislators and anybody unconnected with the investigation to be restrained in their comments about apportioning responsibility till a criminal court decided the case.

Contending that at least one of the demolished properties was built under the central government’s Pradhan Mantri Awas Yojana to provide affordable housing to the economically weaker sections of society, the petition stated that the justification given in such incidents was false. 

Meanwhile, the Supreme Court told the UP government that demolitions can happen only in accordance with the provisions of  law and cannot be retaliatory. “Ultimately, the rule of law should prevail… any action by you should be in accordance with the law,” the Court said. However, it refused a stay on the demolition saying that it cannot pass an “omnibus order” to prevent the authorities from taking action against unauthorised constructions, but asked the concerned authorities to follow due process of law. A bench of Justices BR Gavai and PS Narasimha said that “rule of law has to be followed” in response to petitions filed by Jamiat Ulama-i-Hind against the demolition exercises.

Solicitor General Tushar Mehta, however, took objection to the arguments of the petitioners and told the bench that the individuals affected by the demolitions had already approached High Courts. Therefore, he argued that the Jamiat Ulama-i-Hind petitions were creating a “sensationalising hype unnecessarily”. Senior counsel Harish Salve, appearing for the UP government, argued that the Court cannot stay demolitions only because the property that is to be razed belongs to an individual accused in a case. Senior Advocate Dushyant Dave appearing for the petitioners, stated: “There is a pick and choose against the other community; the entire Sainik Farm is illegal. Nobody has touched it in 50 years. Look at the illegal farm houses in Delhi. No action taken. Selective action is taken.”

This was not the first petition filed by Jamiat Ulama-i-Hind; it had previously filed a plea challenging the Jahangirpuri demolitions that took place in Delhi on April 21, 2022. The Supreme Court had halted the demolition drive by the North Delhi Municipal Corporation and ordered it to maintain status quo. The BJP-controlled North Delhi Municipal Corporation had razed several Muslim-owned shops and properties in the area claiming that they were illegal. The drive began four days after communal violence erupted in the locality when a Hindu religious procession armed with guns and swords passed a mosque.

While there are no provisions under Indian law to demolish the home of anyone accused of a crime, this pattern has been regularly observed in recent times and puts the spotlight on hardships suffered by the immediate family members of the accused persons whose homes are demolished. Social activists and a section of politicians have also raised questions over the legality of such punitive actions.

In September last year, the Bhopal district administration demolished the illegal house of a bus driver who had allegedly raped a minor girl, a nursery student of a renowned private school. After the driver was arrested, officials from the local administration reached his two-room temporary home in Ajay Nagar in the state capital and flattened it without giving any opportunity to his family members to shift to some other place, alleging that the said structure was built illegally. The family alleged that no prior notice was given before pulling down their home. The questions that arose were: How did this illegality come to the notice of the administration only when the accused committed a crime? Where were they when the house was being constructed? Activists contended that authorities should have given a thought to the driver’s family, including his wife, two minor girls and parents who were left without a roof over their heads. 

In such dire circumstances, it is the confidence in those who administer justice that is the true backbone of rule of law. If civilization has to survive, it must choose rule of law. 

—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi


News Update