Bulldozer demolitions are unwarranted and unsanctioned in Indian law: Need for remedial action

The targeted punitive measures against the Muslim community following religious clashes and the consequent demolitions constitute an instance of "ethnic cleansing", according to the UN's characterization

Bhavya Johari May 29, 2024
Representational Photo

On July 31st , 2023, communal violence broke out in the Nuh district of Haryana state, bordering the Indian capital, resulting in severe injuries and a few unfortunate deaths. Inevitably, to ensure law and order, the government imposed a curfew curbing not only freedom of movement but also speech and expression, and on the other hand, made several arrests and lodged FIRs to restore the peace.  However, besides such impugned restrictions, the contentious concern is vis-à-vis arbitrary demolition drive leading to the collapse of more than 300 Muslim-owned properties. While the government purports to restore peace, it is quite contrary on the government's part to manifest coercive action and deprive the citizens of their property without due process, despite the constitutional mandate and judicial discourse necessitating the same. Although the Punjab and Haryana High Court took suo motu action after the demolitions, no decision has been rendered due to the prolonged nature of the litigation. 

The recent update, on May 2nd, 2024merely solicited a response from the government. This situation underscores the urgent need for comprehensive measures to address the issue, as relying solely on the judiciary's reactive action is insufficient to resolve this concern.

The 44th amendment to the constitution removed the right to property as a fundamental right, nonetheless introducing Article 300A, which allowed the government to take away the citizen's property but only with the authority of the law. To this judicial bodies have laid forth concrete guidelines, especially in light of the repeated demolition drives carried out under the garb of maintaining law and order. At the same time, it is nothing more than a collective communal punishment intended to 'cleanse' a particular ethnicity. In Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., the apex court underscored the administrative requirement of opportunity to be heard and given due notice before being expelled by force from one's property, even if the property in question is an illegal occupation. 

The extant jurisprudence was concretized in Maneka Gandhi vs Union of India, wherein the jurisprudence was given normative force by locating the same in Article 21. The court held that the due process of law is an integral part of the procedure established by law. Hence, despite the government sanction, the demolition drive must comply with the touchstones of 'reasonableness' and 'due process'.

Arbitrary state action

Contrary to the extant legal discourse, the Nuh demolition drive witnessed oppressive and arbitrary state action, as neither the premises were illegally occupied nor the prior notice legal requirement was adhered to. Following the four days of rampant demolition exercises, even the Punjab and Haryana High Court impugned such exercise. The court unequivocally halted the drive till the affidavit was submitted from the state's end, establishing that the exercise was carried out with the due process of law and was not merely to further 'ethnic cleansing.' Though the state argues otherwise, the intention is quite apparent via the Home Minister's testimony, who referred to the action as 'treatment' to communal violence.

Due to the prolonged adversarial nature of the legal proceedings, the court has not decided yet. The recent update from May 2nd, 2024indicates that the High Court sought a response from the Haryana government on writ petitions seeking compensation and eight intervention applications filed in the suo moto case initiated after the demolition drive carried out by the state authorities in the Nuh district. Significantly, it becomes imperative to unveil the cloak that often disguises the apparent use of the law-and-order situation as a pretext to demolish buildings without following the established legal procedures, even in the absence of demolition orders and notices.

The targeted punitive measures of the Muslim community following religious clashes and the consequent demolitions constitute an instance of "ethnic cleansing", according to the UN's characterization. This situation aligns with the UN's delineation of ethnic cleansing as a deliberate strategy of employing terror to expel a specific ethnic group from a defined geographical region. This distressing scenario is prevalent in Muslim-dominated areas like Nuh, where demolition activities are specifically aimed at displacing a particular community.

Bulldozer demolition as a remedial measure of state action is unwarranted and unsanctioned in Indian law, as no penal legislation provides such a consequence as a penalty for the offence committed. The action goes against the canons of criminal law and infracts international obligations, as collective punishment is prohibited by the Geneva Convention under Article 32 to which India is a signatory. Moreover, the act of demolition also contravenes the provisions of the Convention Against Torture. The unjustifiable forced dispossession of legally owned property invariably leads to "mental suffering," a criterion outlined in Article 1 for defining torture. Applying punitive measures prohibited even for Prisoners of War within the international context contradicts the principles of a Rule of Law society.

Disregard for constitutional rights

The Nuh demolition drive aligns with a broader pattern of unlawful demolitions in regions like Madhya PradeshUttar PradeshGujarat and DelhiThe essential prerequisite to align legal principles with the issue of unauthorized demolition remains, ensuring that the law holds authority above such actions rather than the opposite. The judiciary has consistently emphasized adherence to legislative norms and constitutional mandates. However, there has been a disregard for constitutional rights and established legal principles

This strong-arm state approach needs serious reconsideration. Instead of a reactive response influenced by communal biases, an impartial due process must be followed, including giving advance notice to the targeted people and the opportunity for individuals to present their cases.

(The author is a graduate of NALSAR University of Law, Hyderabad and takes keen interest in the intersection of human rights and criminal law. Views are personal. He can be contacted at bhavya.johari@nalsar.ac.in )

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