How can the Supreme Court put a brake on the bulldozer? Guidelines alone will not work

Author: Arghya Sengupta
PM Modi has intuitively understood the logical outcome of the increasing use of bulldozers to demolish alleged illegal constructions. During the general election campaign, he/she said that if the Congress and Samajwadi Party formed a government, he/she would bulldoze the Ayodhya temple. Bulldozers have no knowledge of which structure they demolish – if their use gets out of control, tomorrow it could be a building in the Central Vista in New Delhi, the day after tomorrow it could be the Taj Mahal and the week after that it could be the Ayodhya temple. However, the pattern of using bulldozers to demolish homes today suggests something else. The demolitions carried out in Nuh after communal violence were sharply questioned by the Punjab and Haryana High Court. In response, the Haryana administration said in an affidavit that 79.9% of those affected by the demolitions were Muslims. This pattern is repeated across the country. In the last two years, houses of accused persons were swiftly demolished following communal clashes or violence in Mandsaur and Khargone in Madhya Pradesh, Sabarkantha and Khambhat in Gujarat, Jahangirpuri in Delhi, Prayagraj, Kanpur and Saharanpur in UP. Most of these houses belonged to Muslims.

Law is a mute spectator
In the recent incident of a fight between two schoolboys in Udaipur, government officials demolished the rented house of the teenager who was accused of attacking his/her classmate. The reason was clear: the house was illegal – but it doesn’t take a genius to understand why action was taken on illegality so soon after the violence at school.

The law remained a mute spectator in this entire process. No law allows the demolition of the house of an accused, even if he/she is guilty, much less when he/she is merely suspected of committing a crime. This question does not arise even if the person is a juvenile. The lie told in most affidavits by the state governments that it is about illegal occupation of land may be true sometimes, but no sensible person understands this.

If it is indeed about illegal occupation, why the rush? Most municipal laws allow emergency demolitions only if the structure is unsafe and may collapse. Otherwise, there is a 15-day notice and hearing as well as an appeals process before such a move can be taken.

Shortening the process is not speeding up justice but showing people who holds the reins of power. Demolitions are often about crude displays of brute force. Remember the Taliban firing rocket launchers to destroy the Bamiyan Buddhas? 75,000 mini Bamisans are being demolished every year in India, each of which is everything to a family.

Courts must use the power of contempt
Whenever such a case has reached the courts, the brazenness of the action has been shocking. In a hearing earlier this week, a Supreme Court bench called for guidelines on safety measures to be adopted while demolishing homes. This is a well-intentioned move. But it is unlikely that it will, by itself, deliver the necessary and desired results. When governments do not follow the law they have made, when directions from courts to avoid using bulldozers to avenge crimes are consistently ignored, is it likely that a new set of guidelines will be respected?

Guidelines come in handy when governments need guidance on how to do something obscure. Demolition without proper notice is an action so wrong that governments don’t need guidelines to tell them it’s wrong. They know it, but they do it anyway, under the tutelage of lawyers who are always ready to do what their clients say.

If the Supreme Court is really serious about stopping such demolitions, it should take action against the officials responsible for it. The Patna High Court has already taken a step in this direction, ordering the Chief Secretary to identify the officials responsible for some illegal demolitions and take appropriate action against them. This needs to be taken further – each of these actions of demolishing the house of the accused person without proper notice is not only a violation of the law, but it is also a contempt of the orders of the Supreme Court.

The court itself needs to set a precedent by exercising its contempt powers to send the official responsible for such illegal demolition to jail, compensate the person from the salary of the guilty official and initiate dismissal proceedings. It is only concrete action by the court that can make the humble officials and their shameless political masters think twice before bulldozing people’s homes.

discomfort in life
Bulldozing homes may send a message of a strong and decisive government. But it also sends a message of a chaotic government that is at odds with both ease of living and ease of doing business. It sends a message of a government that, when it sees two rowdy schoolboys fighting, sees them not as children who need to be disciplined but as a Muslim perpetrator and his/her Hindu victim. Would the Hindu boy’s pain have been lessened had he/she been attacked by another Hindu or Christian boy? In a society that cannot see two schoolboys for who they are, the bulldozer has done more than demolish a few houses. It has demolished a part of its soul.

(The author is Research Director, Vidhi Centre for Legal Policy. Views are personal)