Lord Bingham famously laid down eight principles of the rule of law. These encompass notions such as equality before the law, the reasonable exercise of power by ministers and public officers, the protection of human rights, and the assurance of fair trials. However, actions such as extrajudicial killings and ‘bulldozer justice’, among others., starkly contrast these principles.
Additionally, they also counter the principle of proportionality in the dispensation of justice and consequent punishment. These alternative systems of dispensing justice represent a profound erosion of the democratic foundation of the state.
‘Bulldozer justice’, one such tool of the state machinery, was first put to use by the Uttar Pradesh government as a swift justice dispensation. It was touted as a mechanism for good and effective governance. This is one of the harshest ways to punish not only the alleged perpetrators of crimes but also their families. This form of punishment treads along the lines of state-sanctioned collective punishment.
One of the established principles of criminal jurisprudence is that the punishment must be objective and proportionate to the crime. Besides, only the perpetrator of a crime is to be solely punished for the specific offence under which they are charged. However, when a house is demolished due to the illegal activities of one of its inhabitants, all the other residents bear the repercussions of those actions. This practice is referred to as ‘collective punishment’ and is frequently employed in Israel against Palestinians, who constitute a minority within the state.
Thousands of houses in the West Bank have been demolished over the years. The Israeli government relies on British-era Regulation 119 which states that the Military Commander can allow forfeiture of any house or land where any person who has committed a crime or attempted to commit a crime lives. They can either demolish the house or any part or structure of the house. These and other British regulations were terminated prior to the end of their mandate by the Palestine (Revocations) Order-in-Council of 1948.
However, Israel argues that the revocation order was not published in the official Palestinian Gazette, thus, it was not revoked. The Israeli Supreme Court has been petitioned on various occasions regarding the demolition of houses but the court has always restricted itself to adjudicating the legality of such actions under Regulation 119. The apex court also noted that these actions violate international principles but has never held this to be an act of “collective punishment”. The court in a case held:
“There is no basis to the petitioner’s complaint that house demolition is a form of collective punishment. In their opinion, only the terrorists and criminals themselves should be punished, and house demolition punishes additional family members who will be left without shelter. Such an interpretation, if accepted by us, would leave the above Regulation and its orders void of content, leaving only the possibility of punishing a terrorist who lives alone.”
“In the case before it is clear that the terrorists came from certain homes, and these homes – and no others – are about to be demolished. In any case, the “punishment” has not been imposed on the homes of uninvolved persons, and it is difficult to understand the origins of the claim that we are here dealing with a case of collective punishment.”
In another case, the court noted the hardship put on the family but said that achieving the ends of “deterrence” was justified. But the Justice refused to acknowledge that the hardship on a family due to the demolition of a house is a “collective punishment”.
Demolishing ‘illegally’ constructed houses: A procedural anomaly in India
Even if we presume that the houses were constructed illegally, civic authorities must still adhere to the standard procedures before and during the demolition process. Although the rules might vary from state to state, the municipal corporation is required to serve a notice before demolishing someone’s property. It would be relevant to mention some of the pertinent legislation to illustrate how they were blatantly disregarded or how authorities merely paid lip service to them, thus demonstrating their lack of genuine adherence.
For example, under the Uttar Pradesh Urban Planning and Development Act, section 27 (1) says that if any development has been carried out without prior approval, the same should be removed between 15-40 days from the day on which the copy of the order was issued. Further, it also provides an opportunity to the person to appeal the said order to the chairman within 30 days.
In Madhya Pradesh, under the MP Bhumi Vikas Rules 1984, ten days are provided to the violator to stop the violation of the Act. Similarly, section 343 of the Delhi Municipal Corporation Act of 1957 requires that a notice should be served to the person before carrying out demolition and the property occupant must be given five to 15 days before the demolition of the structure. Further, a ‘reasonable opportunity’ should be provided to clarify why this action should not be undertaken.
Lastly, the Haryana Municipal Corporation Act, 1944 also requires a show cause notice to be served to the person as to why the demolition should not take place. Section 261 also prescribes a three-day notice period to be served.
A discussion of certain recent incidences of demolition shall demonstrate how the procedures were either violated or circumvented.
Recent incidents
In July, the house of a Muslim family was demolished with drums and dhol playing, on the allegations that two juveniles and an 18-year-old spat on a Hindu religious procession. Before that, in January, the houses of two businessmen, belonging to a Hindu and a Muslim family, were demolished on the grounds that they were selling “Chinese manjha”.
In 2022, the UP government arrested and then demolished the house of Javed Muhammed while briefly arresting a family member. They were served only a day’s notice to take their belongings from the house. Further, as per the family, the house was not even in the name of Muhammed, it was in the name of his wife and the demolition order did not even have her name on it. The notice was pasted on the wall of the house one day prior to it being demolished and was backdated. It also mentions certain hearings that the family had no idea about.
Likewise, a drive was carried out in Kanpur, during which the Supreme Court emphasised that house demolitions should not be conducted as acts of retaliation and stressed the importance of adhering to proper procedures.
Hundreds of incidents have also been reported from Uttar Pradesh, Madhya Pradesh, Assam, and Gujarat, and the target community has always remained the same.
Recently, after the Nuh violence, 750 houses and shops belonging to the Muslim community were demolished. In some case, no prior notice was issued, while in others only a half an hour notice was issued before the demolition. Many were not able to take their belongings before their houses were demolished.
The residents claimed that the houses were built legally. Even though just a day after the officials said that the demolitions were not linked to the protests, the SDM said that these demolitions were linked to the protest. The state home minister had also said that the government would use a “bulldozer” if the need arises.
The Punjab and Haryana High Court took suo motu cognisance of the case and observed, “Apparently, without any demolition orders and notices, the law and order problem is being used as a ruse to bring down buildings without following the procedure established by law”.
The court also raised the question whether it was an attempt at “ethnic cleansing”.
In 2022, a demolition operation took place in Delhi’s Jahangirpuri after incidents of violence were reported during a religious procession on Hanuman Jayanti. It was alleged that the rioters had constructed ‘illegal buildings’ that needed to be demolished. Two petitions were filed in the Supreme Court in opposition to these demolitions, and the court issued an order to maintain the status quo. However, despite the court’s directive, the demolitions continued for approximately an hour.
Three United Nations Special Rapporteurs – for Housing, Minority Issues and Freedom of Religion – had written a joint letter to the Indian government strongly criticising and protesting arbitrary demolitions in Madhya Pradesh’s Khargone, Gujarat’s Anand and Delhi Jahangirpuri.
The evidence is enough to show that these actions are taken against rioters in the name of unauthorised structures. This suggests that these actions are actually state-sanctioned collective punishment. Even if the rioters are to be punished, instead of following the due process of law, the states have started to demolish their houses and have seemed to have forgotten the principle of ‘innocent until proven guilty’ enshrined under the Indian constitution. Their entire families are made to suffer for the sole acts of one or two members of the family. Further, it should be noted that in Nuh, the houses of people belonging to only one community were demolished.
These actions clearly infringe upon constitutional rights and disregard fundamental principles, such as the presumption of innocence until proven guilty. Moreover, these also go against the constitutional interpretations of the Right to Life, as articulated in landmark Supreme Court judgments like Olga Tellis v. Bombay Municipal Corporation. In this case, the Supreme Court affirmed that the right to life under Article 21 encompasses an individual’s entitlement to live with dignity, access to housing, and the means of livelihood.
According to the Housing and Land Rights Initiative, 158 incidents of house demolitions/forced evictions have taken place in 2021 alone. Further, between January to July 2022, 25,800 homes across the country were demolished. For many of these instances, the demolitions took place to punish the alleged rioters after communal clashes.
A similar pattern has been witnessed in the house demolitions by the Israeli government, where in 2022, houses of approximately 950 Palestinians were demolished. This shows that these actions are not only restricted to merely removing illegal structures but to set an example and punish not only the alleged perpetrator of a crime but their entire family, making it a form of ‘collective punishment’.
Amrashaa is a researcher based out of Mumbai. Amit Kumar has been a fellow with the Max Planck Institute of Social Law and Social Policy and is currently an Assistant Professor of Law, Maharashtra National Law University, Mumbai.
The views expressed by authors are purely personal.