Demolishing the rule of law
- A fleet of bulldozers accompanied by hundreds of policemen descended on Jahangirpuri in northwest Delhi to demolish buildings, petty shops, and the entrance gate of a mosque.
- SC in an urgent hearing ordered “status quo” be maintained until further orders, but the demolition continued for over an hour.
Pretext of the demolition
- Communal violence had broken out in the area on April 16.
- It started when a Hanuman Jayanti Shobha Yatra(without police permission) clashed with Muslims as it went alongside the mosque.
- This comes on the heels of other incidents, in Khargone in Madhya Pradesh and Khambhat in Gujarat.
- The actions of state and local authorities to bulldoze shops and homes in riot-hit Muslim neighbourhoods citing “illegal encroachment” raises major legal concerns.
- Such actions show a blatant disregard for the due process of law and established judicial precedents regarding evictions.
- It conveys the cynical use of brute state power for collective punishment undermining the basic tenets of criminal law.
The Question of Illegal Encroachment
The demolition against “illegal encroachments” seems to be a legal smokescreen for its more insidious action.
- The binary of legal and illegal settlements has very little meaning in Delhi.
- According to the Delhi Economic Survey 2008-09, only about 24% of the city lived in “planned colonies” and the rest lived in informal or unplanned areas.
- Irrespective of the legal status of the settlement, no public authority can demolish buildings without giving the affected parties a chance to be heard.
- Neither the Delhi Municipal Corporation Act, 1957 nor the Delhi Development Act, 1957 allows any authority to demolish a permanent building without advance notice.
The Draft Master Plan of Delhi, 2041
- Such unplanned areas have “emerged as high density, mix-use hubs, providing affordable options for housing, micro, small and medium enterprises”.
- Within the web of such urban informality, people make claims over property through various legal, political, and documentary means.
- Since the 1970s, there have been many waves of regularization of “unauthorized colonies” initiated by the state.
Legal Protection Against eviction
- Beyond the principles of natural justice, the judiciary has further strengthened the rights of residents against eviction.
Ajay Maken vs Union of India (2019)
- A case concerning the legality of the demolition of Shakur Basti.
- Delhi High Court held - no authority shall carry out eviction without conducting a survey.
- It involves consulting the population that it seeks to evict and providing adequate rehabilitation for those eligible.
- Invoking the idea of the “Right to the City” and the “Right to Adequate Housing” from international law.
- The court held that slum-dwellers possess the right to housing and should be protected from forced and unannounced eviction.
Sudama Singh vs Government of Delhi (2010)
Delhi HC mandated that the state should comply with fair procedure before undertaking any eviction.
- It further crystallized in the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015.
Case of Ajay Maken
The final judgment was given only after a Draft Protocol for rehabilitation was drawn up after consultative engagements with stakeholders, including the Shakur Basti residents.
Drawing from judgments in South Africa
- In Occupiers of 51 Olivia Road, Berea Township vs City of Johannesburg, the Constitutional Court of South Africa had held that public authorities should engage meaningfully and in good faith with the affected groups.
- The Court facilitated an agreement that ensured affordable and safe accommodation for the occupiers.
Rule of the bulldozer state
The demolition of homes and shops of alleged culprits of communal riots portends the establishment of a perilous bulldozer state that dispenses vengeful majoritarian justice.
- Before taking any punitive action, every accused has to be given a fair trial where both parties provide evidence.
- Under the new rule of the bulldozer state, even before any charges are framed, the executive arbitrarily imposes a form of collective punishment upon a whole neighborhood.
- The bulldozer itself has now become a symbol of brute state power and a revolting mascot to intimidate minorities.
- The demolition activities seem to be purposefully done under full media glare to convey the unbridled power of the bulldozer state.
In the midst of such a majoritarian upsurge from the state and society, the rule of law cannot be saved purely through judicial intervention and would need broader political struggles that challenge India’s seemingly inexorable descent into tyranny.
- Illegal Encroachment - definition
- Draft Master Plan of Delhi, 2041
- Ajay Maken vs Union of India (2019)
- Sudama Singh vs Government of Delhi (2010)
Q. Examine the dilemma of the government who are stuck between Principle of natural justice and the rule of law.