Demolition of protestors’ homes: Bulldozing freedom & laws

Judiciary needs to speak truth to power: Advocate Colin Gonsalves


June 15, 2022

/ By and / New Delhi

Demolition of protestors’ homes: Bulldozing freedom & laws

''In every city of India roughly about 40 pc of all structures are unauthorised'' (Photo by PTI)

The judiciary should step up and take suo motu action against the trend of demolition of homes of activists and protestors, say lawyers day after Uttar Pradesh government demolished home of activist Javed Mohammed in Allahabad (Prayagraj) following protests against insult of Prophet Muhammad by BJP spokespersons.

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The demolition of the homes of activist Javed Mohammad and some persons who protested in Allahabad against the insult of Prophet Muhammad by two spokespersons of the Bharatiya Janata Party is not only in violation of all rules but is also entirely illegal, say legal experts. They blame the judiciary for failing to stand up and do their job in order to protect the law and raise an alarm that the distance that should normally exist between the executive and the judiciary has been slowly but surely eroding over the past few years, since Narendra Modi took over as the Prime Minister of the country.

‘‘With the coming of Modi and his electoral success, and also the electoral success of UP Chief Minister, there is a shift between the executive and the judiciary and the distance that should be maintained between the executive and the judiciary is slowly diminishing. The distance exists but is slowly diminishing. It is a point of concern for the survival of the institution and for the survival of democracy and during this period particularly, the judiciary should be very firm in speaking the truth to power which includes speaking up promptly,’’ senior lawyer of the Supreme Court of India Colin Gonsalves tells Media India Group.

Gonsalves says that even though the affected parties are moving the courts, but adds that the courts are often too slow, especially in cases like this. ‘‘Yes, they (Javed and his family) are planning to move the court and yes, the courts, the High Courts and the Supreme Court are too slow to respond, not realising this is not an ordinary demolition, this is the thing that has the potential to spread across the country and put the country up in flames. But the courts are too slow,’’ adds Gonsalves.

Senior Supreme Court advocate Colin Gonsalves says the demolitions violate every single provision of the law (MIG Photos)

No legal ground for demolitions

Contrary to the popular perceptions and the claims by the police as well as the government, the demolitions of homes of people accused of any crimes cannot be carried out. ‘‘There is no law authorising anyone to demolish a house of so-called alleged criminal, if he is an alleged criminal, put him on jail. There is no punishment in the court of law that says they can destroy his property. These are the facts on this case. Demolition is a totally politically motivated demolition. It has nothing to do with law and totally against the law,’’ explains Gonsalves.

Despite this, for the past five years, governments in the BJP-ruled states, notably Uttar Pradesh and Madhya Pradesh have liberally been using bulldozers to demolish properties of people, simply on the grounds that they were protesting. In almost every single case, the person whose home was demolished was a Muslim and without following any process under law, in complete violation of law.

It was in September 2017 when Yogi Adityanath, who had just taken over the Chief Minister of Uttar Pradesh had first warned that he would bulldoze properties of those involved in crimes. ‘‘My government will bulldoze houses of anyone even thinking of perpetuating crime against women and weaker sections of the society,’’ said Yogi, adding that it would take some more time to reel in other criminal elements.

Another BJP CM who has liberally used bulldozers is Shivraj Singh Chauhan, the Chief Minister of Madhya Pradesh. CM Chauhan has ordered the demolition of properties of alleged mafia as well as those accused of gang rape, rioting and kidnapping. In one such case, the Shahdol rape case that took place on March 16, the home of the accused was demolished on March 22, barely a week after the crime was allegedly perpetrated by the accused. The frequent use of bolldozers has led BJP supporters to call Yogi as Bulldozer Baba and Chauhan as Bulldozer Mama (uncle). In response, farm leader and national spokesperson of the Bharatiya Kisan Union (BKU) Rakesh Tikait warned that if the unjust use of bulldozers doesn’t stop, tractors will be used by farmers to stop them.

The demolition mania also hit Delhi, albiet briefly recently on when April 20, following communal violence in Delhi’s Jahangirpuri, local authorities issued demolition of certain structures in an eviction and anti-encroachment drive, once again mainly targeting the Muslims. In this case, the Supreme Court of India intervened to stop the demolition.

‘Unauthorised no basis for demolitions’

SC lawyer Colin Gonsalves says that all the reasons given by the Allahabad (Prayagraj) city officials for the recent demolitions had no legal founding. ‘‘The first reason given for the demolition is that the structured were unauthorised. Now this can never be a reason for demolition because in every city of India roughly about 40 pc of all structures are unauthorised. So India has to learn to live with unauthorised structures and one doesn’t go about demolishing a structure merely because it is unauthorised. If they were to do it sincerely, then tens of millions of structures across the country will be demolished,’’ explains Gonsalves.

Another key violation of the law, according to Gonsalves, was that as per various orders given by High Courts, unauthorised structures are only to be demolished when a public land is required for public purpose say a hospital, school, bridge and if the no public purpose, the policy the lawful policy throughout the country is to let thing lie, especially when the unauthorised structures are of ordinary people to live, and not some real estate firm that builds completely illegal towers that they sell and make money from.

Moreover, even in case where an unauthorised structure is to be pulled down, adequate notice has to be given and rehabilitation must be agreed.

Gonsalves says that not only were all the procedures laid down by the law violated in Javed Mohammad’s case, but there were several other serious violations. ‘‘The house was not on his name, it was the property of his wife. Then, they say notice was given when the demolition was beginning and the government says, they had sent the  notice on May 24, but that notice never reached Javed and if you challenge the government to show the acknowledgement that it was received, it will prove that they never got the notice. Secondly, the property was on his wife’s name, so how do you demolish her house saying that this man is a criminal, so we decided to demolish his wife’s property? Next point, there is no law authorising anyone to demolish a house of so-called alleged criminal. If he is an alleged criminal, put him in jail. There is no punishment prescribed in the courts that gives them the right to destroy his property. These are the facts on this case. Demolition is totally politically motivated demolition. It has nothing to do with law and totally against the law,’’ says Gonsalves.

It is not just the lawyers and civil society groups that are worried about the demolitions and the message that they send out to the minorities. Even some ordinary persons are wary of the method adopted by the government. Resident of Chitrakoot in Uttar Pradesh and a psychology student in Lovely Professional University, Pragati Dubey tells Media India Group that it is completely fine if the government officials provided valid evidence behind the demolition of houses in Uttar Pradesh but if the evidence turned out to be false, then it would be completely unfair. ‘‘Currently the community is riled up as they believe it is unfair for their houses to be demolished. If it does really turn out to be illegal, then it will deteriorate the condition further and also affect the mental health of the minority group,’’ she says.



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