Punitive Home Demolitions are a form of Unconstitutional Collective Punishment
By PUCL Bulletin Editorial Board
In the last 7 years and more, one of the sadly distinguishing features of BJP-ruled states in India has been the ushering in of the `bulldozer raj’ – the use of the ubiquitous `JCB’ brand bulldozers to arbitrarily and lawlessly demolish houses and buildings of persons belonging to religious minority, largely Muslims, as well as protesters and those accused of offences before their guilt is even established. Most of these demolitions are conducted arbitrarily without following due process under law or by abusing the process of law.
These punitive demolitions started in Uttar Pradesh soon after Yogi Adityanath took over as CM in March, 2017 with the targeting of the supposedly criminal mafia, but very quickly the strategy was used against people protesting against acts of majoritarian violence or against state policy, like the anti-CAA protestors. What started in UP was copied in other BJP ruled states including Madhya Pradesh, Uttarakhand, Gujarat, Haryana, Rajasthan and other states.
The PUCL has consistently decried the silence of the constitutional courts on this willful, targeted destruction of the homes of Muslims and dissenters on the specious plea of punishing those involved in violence. The fact that the Courts remained silent in the face of this demolition of the rule of law, has only encouraged more punitive demolitions, since extending out to other vulnerable groups like Dalits and Adivasis and people from poorer economic backgrounds, against whom it is easier for the state and police to obtain social sanction for such arbitrary and extrajudicial acts.
After a long and unconscionable silence, the ongoing Supreme Court hearings in Jamia Ulama I Hind v North Delhi Municipal Corporation has ignited the hope that the Court will finally fulfil its role as the guardian of the Constitution by putting a stop to punitive demolitions and restoring the rule of law. What the petitioners have brought to the attention of the Court in this case, is a new state crime on the horizon of a new India. These are crimes where the state acts to demolish homes, without following the law. By doing so the State is sending a dangerous message, that as far as its actions are concerned, it is not bound by the Constitution or the rule of law.
Punitive demolitions are a form of collective punishment meted outside the framework of law making a mockery of the Indian Constitution. They violate the most basic principles of fair trial and justice. They are among the most egregious rights violations especially because they happen without a legal basis and they end up disproportionately targeting not only the individual, but all the family members who live in the house as well. While High Courts have episodically been seized of some instances of punitive demolitions, the fact that now the Supreme Court is seized of this matter has all-India ramifications.
The Supreme Court’s Observations
The oral observations by the Court seem to indicate an understanding of the gravity of the challenge being posed by this emerging practice. In Jamia Ulama I Hind v North Delhi Municipal Corporation, Justice Gavai observed: “How can a house be demolished just because he is accused? It can’t be demolished even if he’s convicted.” While the judge clarified that the Court will not protect unauthorized constructions, he remarked that some guidelines are necessary. “Why can’t some guidelines be laid down? It should be put across states…This needs to be streamlined,” observed Justice Viswanathan. At this point, Justice Gavai added that even if a construction is unauthorized, the demolition can be carried out as per the procedure in “accordance with law”.
“A father may have a recalcitrant son, but if the house is demolished on this ground…this is not the way to go about it,” remarked Justice Viswanathan. The Court went on to ‘propose to lay down certain guidelines on ‘Pan-India Basis’ so that the concerns with regard to the issues raised are taken care of.’ The counsels for the parties have been asked to give their suggestions for these guidelines.
Apart from the guidelines, the Court also went on to direct that there should be no demolitions anywhere across the country without seeking leave of the Court up until the next date of hearing. The court however clarified that this directive will ‘not be applicable if there is an unauthorized structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a Court of law.’
Punitive demolitions: Arbitrary, Disproportionate and entirely Illegal
While hoping that the Court responds effectively to this matter, the nature and gravity of the state violation needs to be understood. At the outset, demolitions as a form of punishment are not recognized under criminal law. Hence, punitive demolitions are wholly arbitrary and illegal. They constitute a collective form of punishment. The aim is to punish the entire community and not just the alleged perpetrator.
Innocents who reside in the house, be it children, women or elderly people, suffer an erosion of their rights be it the right to shelter, the right to food, the right to health, the right to dignity or the right to peaceful enjoyment of family life. It is a form of social incarceration and economic disenfranchisement, taking away the dignity of the family, often carried out as political action and by public demand. Punitive demolitions are a blot on any country governed by the rule of law.
Punitive demolitions take the form of arbitrary state action which disregards the existing procedure which governs demolitions in the Indian context. At the bare minimum, a fair procedure would require adequate and reasonable notice, information on the proposed demolitions, a pre-decisional hearing complying with the principles of natural justice, consideration of regularisation of alleged violations where permissible under law, reasonable time to appeal and reasonable notice of demolition after all legal recourse are exhausted.
Gautam Bhatia summarizes the way punitive demolitions happen: “A protest takes place in a locality or neighbourhood, which turns violent. Soon after, the police declares that a certain individual, or set of individuals, have been identified as the “masterminds” behind the violence. Immediately after that, the municipality declares that these individuals are residing in unauthorised buildings (often – as in the most recent case – with backdated notices of doubtful authenticity). The buildings (homes) are then demolished. In the normal course of things, the time period between the police declaring that it has identified the masterminds behind the violence, the municipality declaring that the buildings are illegal, and the actual demolition, is under twenty-four hours”.
The punitive dimension is also visible in statements by those in authority. For example in April 2022, state authorities in Khargone, Madhya Pradesh, demolished homes of Muslims accused of clashes and stone pelting on the occasion of Ram Navami. These demolitions were preceded by Home Minister Narottam Mishra’s warning, “Jis ghar se pathar aaye hain, us ghar ko hi patharon kaa dher banaenge” (”We will turn the houses from where the stones were pelted to a heap of rubble”).
It is troubling that Section 107 (5) to (7) of the newly enacted BNSS which has replaced the Cr.P.C. provides for seizure and sale of property which is the ‘proceeds of crime’, even before the court has found the accused guilty of the said crime. This new law legalises summary punishment by forcible dispossession, breaching fair trial principles, and unfairly extending punishment to family members of accused.
The communal dimensions of punitive demolitions
Who is indeed being targeted and on what grounds are they being targeted? The discourse on understanding this state crime of punitive demolitions was given a fillip by a pair of reports in February 2024 by Amnesty International. The first report is titled, ‘If you speak up your house will be demolished’, and is focused on documenting the ‘targeted demolition by the Indian statement [sic] authorities of at least 128 properties including homes, businesses and places of worship largely belonging to Muslims in the … states of Assam, Gujarat, Madhya Pradesh, and Uttar Pradesh and … Delhi.’ The second report sought to highlight the role and responsibility of JCB on the misuse of their machines used in most demolitions while seeking acknowledgement, accountability, and immediate actions based on the findings from JCB. The report also argues for JCB and JCB India to abide by their stated adherence to and responsibilities under the UN Guiding Principles on Business and Human Rights.
The first report documented the impact of demolitions on, ‘at least 617 people, including men, women, and children, either rendering them homeless or deprived of their sole livelihood.’ The chilling conclusion drawn is that, ‘this selective targeting of Muslims was punitive retaliation for the alleged involvement of some Muslims in protesting discriminatory laws and practices enforced by the Indian state.’ The report simply concludes that, ‘In India, bulldozers have now become synonymous with the oppression of Muslims.’ This policy of punitive demolitions according to the Report, ‘amounts to a form of collective and arbitrary punishment that egregiously violates the rights of those affected including the rights to a fair trial, adequate housing, dignity and non- discrimination.’
The understanding that there is a communal dimension to the targeted demolitions was also acknowledged in an order of the Punjab and Haryana High Court. While halting the demolition drive carried out by the Haryana authorities in communal violence-hit Nuh and Gurugram in August of 2023, the Court held that, “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 observed that “the issue also arises whether the buildings belonging to a particular community are being brought down under the guise of law and order problem and an exercise of ethnic cleansing is being conducted by the State”.
That being said, it should be noted that while punitive demolitions typically target the minority community, with the impunity afforded to state to go on with this practice, there are increasing reports of this becoming a more widespread practice used to target Dalits, Adivasis and other marginalised groups.
The crime of ‘domicide’
The fact that destruction of homes is a particular way of targeting groups is being increasingly recognised in international law. The destruction of Palestinian homes in the West Bank and more recently the wholesale bombing of entire apartment complexes in Gaza point to the contours of this crime. In fact, the Special Rapporteur on the right to adequate housing has called for the criminalisation of the deliberate destruction of homes through an offence to be called ‘domicide’.
The Supreme Court must take cognizance of this wealth of documentation on the crime of what the Special Rapporteur calls domicide and respond effectively to the continuing unconstitutional efforts to make Muslims second class citizens in India without security of life, liberty and dignity.
Expectations from the Court
It is vital that the Court set in place mechanisms which render such punitive demolitions impossible. For that, an inquiry into past punitive demolitions, the fixing of responsibility for the demolitions, as well as punishment of erring officials is vital. Preventive, punitive and remedial measures are required to be set out, with a view to prohibit punitive demolitions. Equally vital is the laying down of a constitutionally compliant procedure which includes the following of the rule of law and principles of natural justice.
In a country governed by the Constitution, the right to housing is constitutionally recognised. Hence, to be constitutionally compliant, demolitions can only be permitted if they are preceded by effective rehabilitation of those whose house is to be demolished and due process is followed. If not, the guarantee of the right to life is negated. Thus while there is a legal requirement that demolitions have to follow the principles of natural justice, the higher threshold is the constitutional requirement under which the right to shelter is part of the right to life. Thus demolitions which result in homelessness are constitutionally abhorrent. The constitutional dimension is vital as demolitions are sought to be justified on grounds that the structure is illegal. But even if the structure is illegal, demolitions of homes without putting in place a rehabilitation mechanism is constitutionally impermissible. Moreover, the abuse of the process of law to conduct targeted demolitions also need to be factored in.
At the least, the guidelines to be laid down by the Supreme Court must:
- Fix accountability against officials who indulge in punitive and targeted demolitions. Police and administrative officials must be held accountable for the egregious violation of the law and abuse of legal process.
- Provide a protective framework against punitive demolitions, including targeted demolitions against vulnerable and minority groups, political opponents and dissenters.
- Appoint an independent Commission to monitor and respond to punitive demolitions
- Ensure rehabilitation and payment of compensation for all punitive demolitions which have taken place till now. The Supreme Court had laid down that in case of a manhole death there must be a compensation paid of Rs 30,00,000, similarly those who are victims of punitive demolitions must be compensated in terms of actuals, rent amount and trauma caused.
The Supreme Court must not bely the hope!