28, Apr 2022 | CJP Team
On April 20, 2022, in the aftermath of the violence that ensued from the procession of Hanuman Jayanti, the BJP headed civic body, North Delhi Municipal Corporation (NDMC) undertook an arbitrary and brutal demolition drive in the violence hit area of Jahangirpuri, and continued razing the properties belonging to a section of the population using bulldozers despite status-quo orders issued by Supreme Court of India (April 20, 2022).
It was the widespread outrage that his generated in the capital, the fact that minority organisations like the Jamiat-e-Ulema-Hind and others petitioned the Supreme Court, and some Opposition leaders like CPM leader Brinda Karat provided a solidarity in physical opposition that actually halted this unlawful act. Unfortunately, only five homes could be actually saved from the bulldozers but the fact that the apex court was compelled to call a halt to such unlawful acts, that this was actually stopped this time around.
The month of April 2022, when the annual Ram Navmi observations along with Chaitya Navratri began on April 2, followed by the processions on April 10 onwards followed by Hanuman Jayanti on April 16 could well go down as Bulldozer Demolition Month as Khargone in Madhya Pradesh(MP) and Himmatnagar, Anand and Vadodara in Gujarat saw homes and establishments –targeted and selectively of the minority community being reduced to rubble by unconstitutional and unlawful acts of the administration goaded by respective elected governments.There, the illegal acts were completed with full impunity, before any protection was forthcoming.
It is not insignificant that the occasion of the birth of Hindu-God Ram marked as ‘Ram Navami and ‘Hanuman Jayanti’ were used for such strident political mobilisation this year: both days happened to fall this year in the holy month of Ramzan. The dates and occasion also marked the end of the Christian month of Lent culminating in Good Friday and Easter Sunday [April 17].
What India saw was what was once a pious occasion of Ram Navami,so cynically and unfortunately marred with violent clashes, with much of these engineered by the sword wielding procession members who played loud offensive music and raised slogans as they marched through deliberately mapped paths that went past Mosques and minority dominant neighbourhoods.
Politically inspired trishul diksha functions where again aggressive hate speech and arming of the minority community preceded these politico-religious events leading to the inevitable stone-pelting and confrontations. Several instances of violent communal confrontation took place across at least five Indian states including Gujarat, Delhi, Madhya Pradesh, Jharkhand and West Bengal. Clearly, the Hindutva supremacistswho enjoy high level political patronage in these states seem to be on an aggressive path set to confrontational provocation. Unsuccessful attempts were made by the same forces in Mumbai and other parts of Maharashtra.
As many as 10 houseswere set on fire in Khargone, Madhya Pradesh, during purported clashes between members of a Ram Navami procession and locals. More than two dozen people, including Superintendent of Police (SP) Siddharth Choudhary, were injured on April 10 resulting in curfew provisions, reported Indian Express.The District Public Relations Office told CJP’s sister organisation SabrangIndia that close to 121 people were arrested by Khargone police in connection with the said violence and its aftermath. However, it seems likepartisan and trigger-happy police, acting under the instructions of a politically motivated executive, have pinned selective blame on people belonging to Muslim minorities and taken the law into their own hands.The district administration has been accused of demolishing 16 houses and 29 shops(45 in all) in five areas across the townand putting community members in jail “in a clear violation of the law of the land”.
That the police conducted utterly unlawful actions under the instructions of both the chief minister and other senior elected officials is a matter of record. Barely a day after the communal clashes, the state’s Chief Minister Shivraj Singh Chouhan on April 11ordered demolishing of “illegal buildings” belonging to those allegedly involved in the stone throwing, reported NDTV. In defence of such illegal demolitions, he asked, “Shouldn’t bulldozers be used against those who trouble the poor…?”, adding to this the chief minister – who is often referred as ‘Mama ji’ (uncle)- was quoted as saying by news agencies as saying, “The houses of poor people were burnt in Khargone. They should not worry as ‘Mama’ will build their houses. We will recover from those who burnt their houses.” Speaking at a rally in Bhopal, the chief minister also said, “We will not let goons and criminals survive in the state. We will not spare them.”
Adding to the escalating communal stress in the state, its Home Minister Narottam Mishra accused Muslims on April 11,just a day after the riots of “violence and rioting” and defended the government’s demolition drive against those who allegedly threw stones at the procession.”He had issued a warning, saying, “Jisghar se patharaaye hain, us ghar ko hi patharonkaadherbanaenge (We will turn the houses from where the stones were pelted to a heap of rubble).”According to NDTV, Narottam Mishra said, “If Muslims carry out such attacks, then they should not expect justice.” He said that things are normal and the “actions” will continue against “rioters.
Gujarat also followed the footsteps of Uttar Pradesh and Madhya Pradesh, where bulldozers were used to destroy structures owned by people allegedly involved in communal clashes during Ram Navami.
Unconstitutionality, Illegality and Bias of State Actions
The actions of bulldozing homes and businesses without following due process of law is not simply unconstitutional, it amounts to the government from becoming the judge, the jury and the executioner. The Indian Constitution recognises three cardinal principles:
- Presumption of innocence,
- Rule of law; and
- Separation of powers between the three wings of the government.
Each and all of these principles were singularly violated in the actions that took place in Madhya Pradesh and Gujarat.
“An eye for an eye and a tooth for a tooth” approach has no legal basis
The primitive nature of vengeance against the wrong doer, “An eye for an eye and a tooth for a tooth” does not have a legal basis in India. In the case of Sheikh Ishaque And Ors vs State Of Bihar (1995) 3 SCC 392, the Supreme Court laid down that this approach is neither proper nor desirable.Secondly, eye for an eye approach leads to collective punishment. If a forest catches fire, both the dry and wet wood will burn up. In this case, the family of the accused whose house were demolished also suffering for a crime they did not commit. Moreover, in the case of Jai Kumar vs. State of MP (1999) 5 SCC 1, the Court has stated, “A tooth for a tooth and an eye for an eye” cannot be the criteria for handing down punishment to convicts in a civilised society.
Where there is arbitrariness there is denial of ‘Rule of Law’
The ‘Rule of Law’ which underlines the basic structure of the Constitution restricts the arbitrary exercise of power by subordinating it to well defined and established law. Law should govern the nation and not the arbitrary decisions of the government or executive authorities. While Part III of the Constitution confers various fundamental rights on the Citizens, it also imposes restrictions on the power that can be exercised. The Concept of the Rule of Law cannot be upheld in its true spirit if the administrative organ of the state is not charged with the duty of performing their function in a fair and just manner. In the case of Maneka Gandhi v. Union of India (1978) 1 SCC 248, the Supreme court in clear words observed that Article 14 strikes at arbitrariness in state actions and ensures fairness and equality in treatment. Rule of law which is the basic feature of the Indian Constitution excludes arbitrariness. Where there is arbitrariness there is denial of Rule of Law. The Court held, “Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality,of treatment.The principle of reasonableness whichlegally as well as philosophically, isanessentialelement of equality or non-arbitrariness pervades Article 14like a brooding omni-presence and the procedure contemplatedby Article 21 must answer the test of reasonableness inorder to be in conformity with Article14. Itmust be right and just and fair and not arbitrary,fanciful or oppressive.”
Even assuming if at all that the structures were built without permission or recognition (something that has been completely disproved, given the homes were part of the Pradhan Mantri Awas Yojana), law explicitly lays out that such demolitions cannot be carried out summarily. It is still necessary to undertake due process of law. Such structures must also be given proper notice, a chance to reply and invoke the right to approach court. In the case of K. Anbazhagan vs The Superintendent Of Police &Ors (2004) 3 SCC 767and Gurucharan Das Chadha vs State Of Rajasthan(1966) 2 SCR 678, the Supreme Court recognizes the principles of the administration of justice that ‘Justice should not only be done but it should be seen to be done’.
Problematic Law enacted in Madhya Pradesh
Most crucial is the need to understand how these recent actions by the state government authorities violate their own recently enacted law. Following on the path of Uttar Pradesh and Haryana, the MP government enacted The Madhya Pradesh Prevention of Damage to Public and Private Property and Recovery of Damages Act, 2021. All three states that have enacted such a law are ruled by the aligned party, the Bharatiya Janata Party (BJP) that also dominates the central government.
This Madhya Pradesh law provides for setting up of a tribunal which would look into claims of property damage after riots, strikes or protests which cause damage to public and private property. Under this law, claims have to be made and this tribunal headed by a retired judge will then decide their validity. After this, damages will be ascertained and the guilty party will have to pay. If payment is not made, a convict’s property can be attached.
Even under this law, there is an entire procedure laid out for finding whether a person accused of damaging property is guilty or not. The law gives that person the right to defend himself. Even if he is found guilty, there is a provision for only attaching a property. Here too, bulldozer demolition still does not come into picture even under this law.
There was an announcement after the Ram Navami incidents, in fact, that such a tribunal had been constituted. However, overruling all processes and procedures even under this much-critiqued law, demolitions were undertaken.
What is clear is that destruction of houses (or establishments) for stone throwing does not find any place under civil or criminal law. The only law which allows destruction of a house or structure in such situations is the Armed Forces Special Powers Act, which deals with terrorism. Even under this law, the power to destroy a structure is given only in limited situations such as a large number of dangerous arms being hoarded in a structure or militants firing from a structure and refusing to surrender. Incidentally, this law is not even applicable in Madhya Pradesh. The nationally applicable anti-terror law – the Unlawful Activities Prevention Act (UAPA) – does not permit demolition of houses.
The MP Land Revenue Code
Section 248 of the Madhya Pradesh Land Revenue Code, 1959, imposes penalty for unauthorised possession of the land by authorising the Tahsildar to summarily ejectany person from the land, forfeit the construction on such land, dispose of any such forfeited property and recover as an arrear of land revenue from such person for the cost of removal of any crop, building or other work and of all works necessary, to restore the land to its original condition. Even this decades old law, requires a procedure to be followed. It is these laid down procedures that indicate that a society or country is governed by the rule of law.
In fact, in the case of Arun Bharti vs The State Of Madhya Pradesh 27.10.2017 (Writ Appeal Nos. 398/17, 408/17 & 413/17), the Madhya Pradesh High Court held, “The competent authority, i.e., Tehsildar is required to conduct enquiry, which though may be of summary nature but ought to include the all-important elements of affording reasonable opportunity to the affected parties of being heard. The necessity of compliance of the principle of natural justice of audi alteram partem by affording reasonable opportunity of hearing is inherent in the provisions of Sec. 248 of the Code”. The High Court further cited the case of Turabali& others Vs. State of M.P. & another, where it was observed,“Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.”Madhya Pradesh Municipal Corporation Act, 1956 Even under section 303 of the Madhya Pradesh Municipal Corporation Act, 1956, the Commissioner cannot direct removal of person from building in which works are unlawfully carried on, or which are unlawfully occupied, unless he has been served by the Commissioner with one week‘s notice in writing requiring to him vacate. Let all sides be heard if justice is to be done
Audi Alteram Partem means “Hear the other side” or “let the other side be heard as well” (no one should be condemned unheard). Reasonable opportunity must be given to a person before taking any action against him i.e., there must be fairness on the part of the deciding authority.Following are the essentials of a fair hearing.
- Notice: – It is the duty of the deciding authority to give notice to a person before taking any action against him. The notice must be reasonable and must contain the time, place, nature of hearing and other particulars. If the notice comes out to be defective or vague, all subsequent proceedings would be vitiated.
- Hearing: – Fair hearing in its full sense means that a person against whom an order to his prejudice is passed should be informed of the charges against him, be given an opportunity to submit his explanation thereto, have a right to know the evidence both oral and documentary, by which the matter is proposed to be decided and to have the witnesses examined in his presence and have the right to cross examine them and to lead his own evidence both oral and documentary in his defence. It is a code of procedure, which has no definite content, but varies with the facts and circumstances of the case.
In the case of Thomas Cook (India) Limited vs Hotel Imperial &Ors.(2006) 127 DLT 431, the Delhi High Court stated, “The expressions `due process of law’, `due course of law’ and `recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing — ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law’ or `due course of law’, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.”
In the case of Maneka Gandhi v. Union of India (1978) 1 SCC 248, Supreme Court held: “It is well-settled that even when there is no specific provision in a statute or rules made there under for showing case against action proposed to be taken against an individual, which affects the right of that individual the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be perform by the authority which has the power to take punitive or damaging action.”
In Ajay Maken v. Union of India (2019) 260 DLT 581,the Delhi High Court emphasised that evictions conducted without adhering to due process would be considered illegal. The Court held that “…conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in coordination with the other agencies, and without compliance with the above steps, would be contrary to the law [emphasis added].”
“143. Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‗illegal encroachers’. The decisions of the Supreme Court of India on the right to shelter and the decision of this Court in Sudama Singh require a Court approached by persons complaining against forced eviction not to view them as ‗encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions.”
In Mala Pentamma v. Nizamabad Municipality (2005) 6 ALD 488, the High Court of Hyderabad had held that, “It is a settled position of law that even for removal of encroachment, the encroachers are entitled to notice and without following due process of law, as contemplated under the provisions of A.P. Land Encroachment Act, they cannot be evicted. Therefore, the contention of the respondent Corporation that they are not duty bound to issue notice to the petitioner, does not hold water and shows their high handed behaviour.”
Violation of Constitutional Rights
Such arbitrary demolitions of the houses belonging to the accused without any legal basis is a violation of their constitutional rights.
Article 14. Equality before law. —The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. — (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Non-discrimination and equality are fundamental human rights principles and critical components of the right to adequate housing. Additionally, pinning selective blame on people belonging to Muslim minorities and attempting to instil fear in them by arbitrarily demolishing their house is a complete violation of their fundamental rights under article 14 and 15 of the Constitution.
Article 19. Protection of certain rights regarding freedom of speech, etc.— (1) All citizens shall have the right—
(e) to reside and settle in any part of the territory of India;
(g) to practise any profession, or to carry on any occupation, trade or business.
Article 21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law.
Right to Housing and Shelter part of the Right to Life under Article 21
The Right to housing is a significant aspect of a person’s life and liberty. In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, 1995 SCC Supl. (3) 456, the Court held that the right to shelter has been held to be a fundamental right which springs from the right to residence secured in Article 19(1)(e) and the Right to Life guaranteed by article 21 to make this right meaningful to the poor, the state has to provide facilities and opportunities to build houses.
In the case of P.G. Gupta v. State of Gujarat and others. 1995 SCALE (1) 653, the Supreme Court ruled that the right to shelter in Article 19(1)(g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.
In the case of Francis Coralie vs. Union Territory of Delhi, 1981 SCR (2) 516 45, the Supreme Court stated: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow beings…Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights”.
In the case of Olga Tellis vs. Bombay municipal Corporation 1986 AIR 180, the right to life was widened enough so as to bring the ‘right to livelihood’ within the purview of ‘right to life’ under Article 21 of the Constitution. The Court held that the respondents (Bombay Municipal Corporation) must provide alternative shelter to the petitioners before eviction from the pavements.It noted, “The forcible eviction of squatters, even if they are resettled in other sites, totally disrupts the economic life of the household. It has been a common experience of the administrators and planners that when resettlement is forcibly done, squatters eventually sell their new plots and return to their original sites near their place of employment. Therefore, what is of crucial importance to the question of thinning out the squatters’ colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to spread the existing job opportunities evenly in urban areas. Apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities.”
In the case of Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan &Ors (1997) 11 SCC 121, the High Court had granted interim stay of removal of the encroachment. The Court held that before removing the unauthorised encroachments the procedure of hearing, consistent with the principles of natural justice should be followed. The corporation appealed before Supreme Court.
“The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be a pragmatic and realistic one to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places.”
“As held earlier, right to residence is one of the minimal human rights as fundamental right. Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor. Article 38,39 and 46 mandate the State, as its minimise inequalities in income and in opportunities and status.It positively charges the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity of person and equality of status and to constantly improve excellence.”
Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavour to eliminate inequalities in status.
Article 300A. Persons not to be deprived of property save by authority of law.— No person shall be deprived of his property save by authority of law.]
In the case of Tukaram Kana Joshi and Others vs. MIDC and Others (2013) 1 SCC 353, the Court noted that, “The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in the realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered, very much, to be a part of such a new dimension.”
In the case of Hari Krishna Mandir Trust Vs State Of Maharashtra And Others (2020) 9 SCC 356, the Supreme Court held that the Appellant cannot be deprived of the subject strip of land being the private road without authority of law, as this would be a violation of Article 300-A of the Constitution of India, which prohibits deprivation of person from property without authority of law. The SC held that the right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by the Court earlier. It was held that in view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. It was held that the appellant trust cannot be deprived of its property save in accordance with law.
Principle of Necessity and Proportionality
Under well-established principles and dictums of international human rights law, any interference with a fundamental right can only be justified when they are prescribed by law, they are necessary to achieve a legitimate aim and are proportionate to the aim pursued.
In the case of Justice K. S. Puttaswamy vs. Union of India (2017) 10 SCC 1, drawing from the concept of proportionality that is used to balance rights and competing interests under European law, Chandrachud J., notes that any invasion of life or personal liberty must meet the three requirements of (a) legality, i.e. there must be a law in existence; (b) legitimate aim, which he illustrates as including goals like national security, proper deployment of national resources, and protection of revenue; and (c) proportionality of the legitimate aims with the object sought to be achieved. The Court stated “Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. Hence, the three-fold requirement for a valid law arises out of the mutual inter-dependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other”.
Article 19(5) and (6) of the Constitution restricts the exercise of the rights conferred by Article 19(1)(e) and (g) to the extent that such reasonable restriction is in the interests of the general public.In the given case, the summary demolition of the houses of the accused for participating in the riots is neither prescribed by law nor was it necessary and proportionate to achieve the legitimate aim being pursued here, i.e., the interest of general public.At the most, the rioters –if after free and fair investigation it was established that those assumed to be guilty by a partisan state executive (Chief Minister/Home Minister of MP) were actually the ones who were guilty — could have been charged under IPC section 146 (rioting) and section 153-A (promoting enmity between groups). The state could, then, after following due process, have pursued civil claims against them for recovering damages caused to public and private properties. Even though the government claims that the properties were demolished on account of being illegal and not as a punishment for the accused, the open statements made by the state’s Chief Minister and Home Minister and the fact that the government waited for one month to claim such encroachment a day after the alleged communal clash implies otherwise.
The argument put forward by government and its agencies that the homes and other structures in Khargone were destroyed because these were illegal structures is also suspect. Many of these structures were decades old. Right from the 1983 decision of the Supreme Court in Olga Tellis followed by similar decisions in the cases of Chameli Singh and Nawab Khan it has been laid down that the owners of illegal structures require to be given adequate notices before any action is taken. Clearly, no such notice seemed to have been given in Khargone. The height of ironies is a house constructed under the Pradhan Mantri Awas Yojna was also destroyed.
Not just Khargone, but large parts of Madhya Pradesh and even Gujarat are replete with illegal structures. Why were only those from which allegedly stones were thrown have been targeted and not others. Why has no action ever taken against government officials who permitted these “illegal” structures in the first instance and then provided them protection for decades?
It is also now clear from the statements of the political executive and district and police establishment that illegality of structures was just the excuse. The real reason for the demolitions was the alleged stone throwing from these houses which is yet to be proved. This also amounts to assigning guilt by association – an entire building being demolished because one tenant threw a stone. This again has no place under the Indian law.
The Madhya Pradesh government’s action, followed by the bulldozers acting in Jahangirpuri in Delhi and before that in Himmatnagar, Anand and Vadodare in Gujarat are all actions by the state executive (elected and unelected) that are in complete violation of the enacted laws as well as the Constitution. The executive here played the role of the prosecutor, the judge and the executioner. The chief minister appears to have directly or tacitly authorised this illegal and unconstitutional action. So far except for minimal relief granted to a Muslim woman from Khargone who feared her home may be demolished no real course correction has been ordered by the constitutional courts.
On April 24, 2022, in a plea filed by Fareeda Bi (Wife of an accused in the Khargone riots case) before the High court of Madhya Pradesh, the State of Madhya Pradesh reassured the Court that no action shall be taken against the petitioner for demolition of the house without following due process of law. The plea was filed on apprehension that the respondents may demolish the structure of the house without following due process of law. Besides, as mentioned at the opening of this analysis, the Supreme Court recently issued notice to the Centre, States of UP, MP and Gujarat on petitions seeking to direct authorities to refrain from undertaking the demolition drive of the houses belonging to the accused as a punishment. The Supreme Court has, stepped in and stayed – for another two weeks at least –the arbitrary demolitions at Delhi. This stay came not before over 50 homes and shops, including one Mosque werebrutally pulverised by a bulldozer on April 20, 2022 as reported by Times of India.
These recent actions by governments in three geographical locations have been brazenly in defiance of Indian law and the Constitution. The last thing one expects in a democracy sworn to abide by the rule of law is that such actions go unaccounted for and unpunished. There is a huge expectancy for course correction from India’s constitutional courts.
International laws that protect against bulldozer-driven eviction
The right to adequate housing is a human right recognized in international human rights law as part of the right to an adequate standard of living.
The Universal Declaration of Human Rights (UDHR) 1948:
Article 25.1 states that: “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
International Covenant on Economic, Social and Cultural Rights 1966
Article 11.1: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
International Covenant on Civil and Political Rights 1966
Article 12 states that: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own.”
Article 17 states that: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”
Other international human rights treaties that recognize the right to adequate housing:
- The 1965 International Convention on the Elimination of All Forms of
- Racial Discrimination [art. 3 and 5 (e)(iii)]
- The 1979 Convention on the Elimination of All Forms of Discrimination
- against Women [art. 14 (2)]
- The 1990 International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families [art. 43 (1)(d)]
- The 1989 Convention on the Rights of the Child [arts. 16.1 and27]
- The 2006 Convention on the Rights of Persons with Disabilities [arts. 9and 28]
Extracts from UN Habitat Right to Adequate Housing Fact Sheet No. 21:
“Regardless of their cause, forced evictions may be considered a gross violation of human rights and a prima facie violation of the right to adequate housing. Large-scale evictions can in general be justified only in the most exceptional circumstances and only if they take place in accordance with the relevant principles of international law.”
“Effective legal resources and remedies should be available to those who are evicted, including adequate compensation for any real or personal property affected by the eviction. Evictions should not result in individuals becoming homeless or vulnerable to further human rights violations.”
United Nations Committee on Economic, Social and Cultural Rights general comments No. 4 (1991) on the right to adequate housing and No. 7 (1997) on forced evictions:
The right to adequate housing contains freedoms which include:
- Protection against forced evictions and the arbitrary destructionand demolition of one’s home;
- The right to be free from arbitrary interference with one’s home,privacy and family; and
- The right to choose one’s residence, to determine where to liveand to freedom of movement.
The right to adequate housing contains entitlements which include:
- Security of tenure;
- Housing, land and property restitution;
- Equal and non-discriminatory access to adequate housing;
- Participation in housing-related decision-making at the national
- and community levels.
The UN even issued an advisory against the mass eviction in Khori Gaon (Faridabad), especially in the backdrop of the pandemic. UN human rights experts on July 16, 2021, called on India to halt evictions of some 100,000 people – including 20,000 children – that began this week in the midst of monsoon rains. Demolition of homes began on Wednesday, 14 July, in a village in Haryana State built on protected forest land, even though the forest was actually destroyed decades ago by heavy mining.
Through the ratification of human rights treaties, States are obligated to implement these rights in their jurisdictions. Some obligations are of immediate effect, including the fundamental undertaking to guarantee that the right to adequate housing is exercised on the basis of non-discrimination. Under the International Covenant on Economic, Social and Cultural Rights, States have the obligation to progressively achieve the full realization of the right to adequate housing. In other words, the Covenant acknowledges that States have resource constraints and that it may take time to ensure the right to adequate housing to everyone.
Members of the Muslim community have decided to approach the Madhya Pradesh High Court against the “selective” demolition drive launched by the BJP government in the state, under which it has started razing the houses of those who were allegedly involved in the recent violence in Khargone city and a few other places.
Image Courtesy: indiatoday.in