A photograph, a birthday card, tatters of old text-books, lay amid a mountain of rubble, as plumes of dust rose to the heavens. The gleaming, yellow bulldozer, on Sunday afternoon, 12 June, charged repeatedly and relentlessly towards the wreckage that till hours prior used to be Afreen Fatima's home in Prayagraj.
Her father Javed Mohommad was on 10 June, arrested over allegations of violence during a protest against former BJP spokesperson Nupur Sharma's derogatory remarks against Prophet Muhammad. On 12 June his house was demolished, with the Prayagraj Development Authority (PDA) claiming:
On 25 May, the demolition order was issued and Javed Mohammad was apprised about it via notice that was pasted on his house
It was expected that he demolish the house and intimate the authorities about the same by 9 June, which he didn’t
The house was built without requisite approval from the authorities
Meanwhile, sources close to the family, as well as the family's lawyers have highlighted seeming inaccuracies in the notice, including that the (now demolished) house was in fact in the name of Javed Mohammad's wife Parveen Fatima, and that while the PDA notice was dated 10 June, it was only pasted at Mohammad's residence on 11 June.
Seeming Illegalities in the Demolition of Javed's Home
Besides, even though UP Additional DG (Law and Order) Prashant Kumar told The Indian Express that the demolition has “nothing to do with the police,” and that it was being done as part of Prayagraj Development Authority Action; a report by The Wire, dated 4 June, noted him saying that those involved in protests will be booked under the stringent Gangsters Act and their properties seized or demolished.
The latter, if true, suggests a gross illegality as it is the municipal authorities and not the police (including the Additional Director General), who can take a decision on demolition. Besides the grounds for the said demolition ought to be building violations and not law and order issues.
Further, retired Allahabad High Court Chief Justice Govind Mathur dubbed the demolition of Mohammad’s home “totally illegal,” telling The Indian Express:
“Even if you assume for a moment that the construction was illegal, which by the way is how crores of Indians live, it is impermissible that you demolish a house on a Sunday when the residents are in custody. It is not a technical issue but a question of rule of law.”
An Eerily Similar Pattern
Particular facts of the case aside, however, the present instance of demolition – shortly after the individual has been accused of violence in a separate matter – fits within the existing pattern of hounding (as it appears mostly) Muslim accused via arbitrarily applied municipal laws.
An eerily similar sequence of events has been witnessed in the recent past in Khargone, Madhya Pradesh and Delhi's Jahangirpuri, where the Supreme Court had stayed the NDMC’s encroachment drive, ordering that the status quo should be maintained until further orders.
Shortly before Javed Mohammad's home was razed to rubble, the Uttar Pradesh administration had also run bulldozers over properties of two accused in Saharanpur.
On Saturday, the Kanpur district administration demolished parts of a building owned by businessman Mohammad Ishtiyaq – a close relative of Hayat Zafar Hashmi, accused of being the 'key conspirator' of the violence that erupted in Becon Gunj area in Kapur after Friday prayers on 3 June.
Speaking to The Quint, Supreme Court lawyer Shadan Farasat said: “Whether notice has been given or not given is irrelevant.”
“When you are evidently targeting somebody in response to some other action for which this is not a punishment, then you are using the municipal law for an extraneous purpose. That’s how the state is also projecting it outside that this is a punitive measure for something else, some act of protest. And that’s not the purpose of a municipal law.”
“Selective application of a law as a punitive measure for some other action is obviously illegal. The real purpose of this will have to be determined by any court, and the real purpose is quite obvious," he added.
Besides, as pointed out in this story, there is no law in force which would allow the demolition of property of those accused of being involved in riots and damage to public/private property.
Punitive action against an accused person can only take place after conviction in a court of law. Audi Alteram Partem or the right to be heard is one of the very basic principles of natural justice.
The 'Illegal Structure' Playbook
Advocate Deepak Joshi pointed on Twitter on Sunday how "Section 27 of UP Urban Planning and Development Act, 1973 [was being] put to devious use.”
Section 27 of the Act permits the vice-chairman or any designated officer of a UP municipal authority to order demolition of any property where any development has been commenced, is being carried on or has been completed, if the development is
In contravention of the Master Plan;
Without the appropriate permission, approval or sanction;, or
In contravention of any conditions subject to which such permission, approval or sanction has been granted.
As Joshi pointed out, the demolition playbook being followed basically sees FIRs against political opponents or specific communities followed by sudden demolitions on unrelated counts as an alternative form of punishment. Ostensibly, the demolition is justified using Section 27, but without a proper procedure being followed.
But there's a lot more design to this playbook. Delhi High Court lawyer Harshit Anand told The Quint that "the modus operandi which the State is adopting to carry out demolitions is designed to render civil remedy infructuous."
What this means is that the way in which the demolitions play out, in a sudden rush, makes it impossible to contest the demolition before the authority or in the courts, as allowed under the law.
"For instance, the objective in Mohammad Javed's case seems to be to make an injunction against the notice impossible," he added.
"In such a case, the only forum that the aggrieved person is left with is a constitutional court which can stay such demolitions by exercise of its writ power."
If the issue had really been illegal construction, there were other good faith ways in which the authorities could have acted, like cutting off the water or electricity supply. Instead, Anand points out, they chose to completely demolish the construction thereby destroying the very subject matter of dispute.
"In such a case, even if the aggrieved party were to later succeed in a court of law, they are effectively rendered remediless as their house does not exist anymore."
All of this, Anand observed makes such demolitions a fit case for the Allahabad High Court or the Supreme Court to take suo moto cognizance of the issue to uphold the due process of law and protect the human right to property and housing.
At the same time, Anand noted that such demolition drives continue to happen even though cases against similar demolitions are pending in several courts of law, which is a matter of grave concern.
Are the Courts Doing Something?
In April the bench, hearing the Jahangirpuri demolition case, also issued notice to to the States of Madhya Pradesh, Uttar Pradesh and Gujarat (along with the Union of India). This came on another petition filed by Jamiat Ulama-i-Hind against the authorities in different states resorting to demolition of houses of persons accused in crimes.
According to media reports, the issue of demolitions is under substantive challenge at the Madhya Pradesh and Allahabad High Courts, as well.
Despite the urgency of the matters, the constitutional courts have not taken up these cases with any urgency, even as homes are reduced to rubble in a repeated, systemic manner.
As the highest court in the land, the Supreme Court had the power to directions to prevent these dubious demolitions across the country. Unfortunately, when senior advocate Kapil Sibal asked for this during the Jahangirpuri case, Justice Nageswara Rao chided him saying:
“Once we have passed orders in one case you still think something will happen?”
But the top court's status quo order in Delhi does not seem to have had any impact on other states at all.
The failure of the courts to take more stringent preventive action is unfortunate since once the demolitions start, severe damage can be done before a subsequent court order can be obtained, as pointed out by advocate Gautam Bhatia in his blog:
"As the case around demolitions at Jahangirpuri in New Delhi showed, the speed at which demolitions are undertaken ensures that even where there is judicial intervention, it is often too late to accomplish anything meaningful."
“Things are even worse when demolitions happen far away from Delhi, or in places – and to communities – where immediate access to courts is substantially more difficult," Bhatia pointed out.
Perhaps what is necessary at this point is clear-headed legal action, to urgently address unfair demolitions and prevent further injustices.
While the lower courts cannot really pass such broad injunctions, the High Courts and the Supreme Court can order stays on demolition drives when writ petitions are filed before them, like the ones in the Jahangirpuri and other cases.
They can also take suo motu cognisance in the matter, although that is a more uncommon route. Nevertheless, given the way in which this bulldozer culture is spreading publicly across the country, and the fact that claims of due process being followed by relevant authorities seem dubious at best, it does appear to be something the higher judiciary should do.
Remember that the right to property is both a human, as well as a constitutional right, which can only be taken away according to procedure established by law.
In light of this, there might be a need to acknowledge that what is happening is part of a larger scheme, as Bhatia contends. "As the copycat actions across different states have shown," he argues, "a specific instance of home demolition is not an individualised act, but is part of an evolving pattern of collective punishment by the State."
So if This Is Collective Punishment, What Can Be Done?
"To capture this," Bhatia suggested, "a new vocabulary might be needed."
And what would that new vocabulary be?
The doctrine of an unconstitutional state of affairs, as per Bhatia, which originated in Colombia allows the Court to take into account the “systematic nature” of this practice, both in the recent past, and in its spread across the country.
And what remedy follows the doctrine of an unconstitutional state of affairs?
The continuing mandamus, suggested Bhatia, which allows the Supreme court to:
take cognisance of the situation,
issue interim orders,
monitor for compliance
This "will not be limited to single cases, but will extend to the unconstitutional state of affairs at large," he pointed out.
In any case, however, even if the courts need to deal with the problem one city, one case, one potential wreckage at a time, they should do it. And they should do it on an urgent basis. Perhaps, not one Jahangirpuri interim order, but a collection of clearly-worded stay orders might compel the government to think twice before they send their bulldozers charging at other people's homes.
Returning to Javed Mohammad, however: He remains incarcerated and his family no longer have a home to return to.
And while their lawyers have filed a letter petition at the Allahabad High Court, if a verdict comes at all, it will be a while before it does. Besides, the heap of rubble – birthday cards, photographs, tatters of text books, flakes of concrete smattered over the land they had once lived on – will not fall back into the shape of their home, irrespective of what the verdict will be.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)