New Delhi, Nov 22.
The Gauhati High Court’s recent observations, on the sheer illegality of bulldozing a citizen’s property, even while a probe is underway against him in a criminal case, will hopefully have a salutary effect on the executive.
Acting suo motu on a report that the houses of some “suspects” – who allegedly torched a police station over a custodial death — were razed to the ground, the High Court demanded to know under what provisions of law the police can bulldoze property during investigations.
Higher-ups in the police department also need to abide by the law, a two-judge bench, comprising Justices R.M. Chhaya and Soumitra Saikia, said. No one is safe in his country if this kind of action is permitted, it said.
The executive would do well to abide by this wise counsel. In far too many cases these days, the authorities are resorting to bulldozing private property to send a message home to “suspects” or “accused” in criminal cases not to take the law lightly.
MUTED RESPONSE TO BULLDOZERS TILL GAUHATI HIGH COURT SPOKE UP
The response of the judicial fraternity and civil society to this phenomenon was surprisingly muted till the Gauhati High court spoke up.
In its prima facie remarks, the Supreme Court did in June 2022 tell the Uttar Pradesh government to follow due process, but did not stop the summary demolitions of homes of some accused in the state. It is yet to hear the case on merits.
The state government claimed that it was following due process and that action against the errant under municipal laws wasn’t precluded just because they were suspects or accused in criminal cases.
Bulldozers, dispensing summary justice, make a mockery of everything that a democracy stands for – rule of law, equality under the law and the presumption of innocence of an accused.
SUMMARY DEMOLITION PROVISIONS IN MUNICIPAL LAWS MEANT TO TACKLE NEW ENCROACHMENTS
There are many laws which provide for summary demolition provisions. These allow the civic bodies to prevent encroachments on public land, public spaces and roads.
These powers are extraordinary powers and are not expected to be used lightly. These are given to the executive to prevent new encroachments.
By no stretch of imagination do these powers extend to instances of previously settled possession. Those can only be unsettled via the courts.
NATURAL JUSTICE MANDATES A HEARING BEFORE DEMOLITION
In all other cases, the authorities are bound to follow the principles of natural justice which mandate a hearing before a person is deprived of his property.
Right to property may not be a fundamental right but is still a legal right.
Most laws provide for a minimum notice period of 5 to 15 days before demolition. The authorities must hear objections of the owner of the property before taking a call on whether to demolish.
The aggrieved person can appeal against any such decision to either the appellate authority or constitutional courts against this decision.
The UP Urban Planning and Development Act, 1973, is an exception in that it bars courts from interfering with the process while it is on. This is, however, not a bar on the constitutional courts.
RIGHT TO CONSTITUTIONAL REMEDIES CAN’T BE DENIED
A citizen’s right to seek constitutional remedies from High courts or the Supreme Court under Article 226 and 32 can never be taken away.
Some state governments have in recent instances bulldozed homes of alleged stone pelters and others houses of those allegedly “guilty by association” with criminals.
PRESUMPTION OF INNOCENCE OF ACCUSED
This is against the principle of presumption of innocence of an accused. Under the Indian Constitution, an accused is innocent till proven guilty in a court of law.
The Constitution also allows a person accused of a crime to hold his silence and not incriminate himself. Once proven guilty, the court punishes him as per the law.
EXECUTIVE CAN’T BE JUDGE, JURY, EXECUTIONER; AGAINST SEPARATION OF POWERS
There is no law which allows the executive to play judge, jury and executioner and deprive the errant of his property in the interim. Summary justice thus makes a mockery of the principle of separation of powers between the judiciary and the executive.
RIGHT TO RESIDENCE; EQUAL PROTECTION OF LAWS
Such action is also violative of a citizen’s right to residence, a valuable right recognised by the courts.
Under Articles 14 and 15 of the Constitution everyone is entitled to equal protection of the law. The state cannot therefore single out a certain section or sections for action not known under the law.
The executive must go by the procedure established by law.
BULLDOZER UNKNOWN TO PROCEDURE ESTABLISHED BY LAW
There is none that allows bulldozing either at the investigation stage or even after trial in a criminal case. Crimes are mostly punishable by jail terms or fines. Where’s the law which allows bulldozing of a home of a criminal as a punishment?
Which law allows the executive to render women, children and the old related to a suspect or a criminal homeless? Even under the money laundering laws, property built from the proceeds of crime can only be attached by the state.
A top court ruling allows the executive to recover any damage to public property from rioters – provided such claims are vetted by a judicial tribunal – not destroy their property. In absence of any such provisions, governments cannot take the law into their own hands.
GOVTS SETTING WRONG EXAMPLE FOR CITIZENS
A state has unbridled powers, and governments at the helm of affairs can only function arbitrarily at a huge cost to society – undermining rule of law. If the state takes the law into its own hands, bypassing the judicial system, what prevents the citizens from following its footsteps?
Instances of lynching, vigilante justice, minority harassment, Dalit atrocities, violence targeting women have all gone up in recent years, possibly indicative of an erosion in public faith in rule of law and democracy.
It is not a good omen and doesn’t augur well for the country. A civilised legal system ensures a quick and fair trial before condemning a person. Executive governments of any shade can’t bulldoze this basic legal principle.
