On 20 April 2022, the Supreme Court decided to stay a demolition bid that was underway in Delhi’s Jahangirpuri - in the aftermath of the clashes that broke out in the northwest district during a Hanuman Jayanti procession.
However, when senior advocate Kapil Sibal asked for an order of nationwide applicability as well, Justice Nageswara Rao chided him by saying:
“Once we have passed orders in one case, you still think something will happen?”
A year on, we cast a retrospective glance and make an attempt to find out if in the aftermath of the apex court’s Jahangirpuri order, has “something” still happened?
Jahangirpuri demolition.
(Photo Courtesy: Eshwar/The Quint)
It Seems Like it Has...
On 12 June 2022, a gleaming, yellow bulldozer, charged repeatedly and relentlessly towards the wreckage that hours prior used to be Afreen Fatima's home in Prayagraj.
Two days before this demolition exercise, her father Javed Mohommad had been arrested over allegations of violence during a protest against former BJP spokesperson Nupur Sharma's derogatory remarks on Prophet Muhammad.
While lawyers and activists wondered if the demolition drive was carried out in reaction to Mohammad’s alleged participation in the protests, the authorities subsequently said that the house was built without requisite approval and the action had “nothing to do with the police.”
However, retired Allahabad High Court Chief Justice Govind Mathur told 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.”
On 11 June, as per Article 14, the Kanpur Development Authority (KDA) razed two properties linked to a Hayat Zafar Hashmi and an under-construction petrol pump owned by a Riyaz Ahmed, on similar pretexts after protests over the same issue (Sharma’s remarks). Several other protesters were simultaneously arrested.
In May that year, Assam’s Nagaon Police and Administration reportedly demolished several homes in Salnabari area belonging to the people allegedly involved in the vandalism of the Batadrava Police Station. As per Northeast Now, there were claims of the structures having been illegal.
According to a report by The Wire, dated October 2022, Madhya Pradesh police razed houses belonging to three Muslim men who were among nineteen booked in connection with a dispute that ensued at a Garba venue in Mandsaur district. Superintendent of Police (SP) Anurag Sujania had also reportedly said that the houses were “illegal construction” and had been demolished with the help of the revenue department.
The report, however, points out that the demolition took place two days after the purported dispute, and well before a court could have even pronounced the accused guilty.
Such illustrations are neither unprecedented nor numbered. Shortly before the Jahangirpuri exercise, a similar sequence of events had unfolded in Khargone, Madhya Pradesh. Six days after the status quo order, it happened in Gujarat's Himmatnagar.
Demolition drive in Gujarat's Himmatnagar.
(Photo: Accessed by The Quint)
Thus, the instances mentioned above only appear to fit within the existing pattern of hounding (as it appears mostly) Muslim accused via arbitrarily applied municipal laws. And that despite the apex court's seeming expectation, they continue to charge through the country like the indomitable JCB. Something is still happening.
And can this be legitimised by any stretch of imagination?
What the Law Says
As pointed out in this story, there is no law in force which would allow the demolition of property of those alleged to have been involved in riots or other such activities.
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. (More details here)
When you deprive someone of the right to defend himself, by taking action before a court can arrive at a verdict, you also deny them the presumption of innocence – which is a key component of criminal jurisprudence. Remember, innocent until proven guilty?
And guilt can be established only in a court of law. A judge has to sift through all the available evidence, reflect on existing precedent, probe the context, listen to the prosecution and the defence, ask important questions, and then finally, after much contemplation and reflection, arrive at a conclusion of guilt. Which is why it isn’t the executive’s business to penalise.
Besides, criminality or not, any demolition without due notice, process and opportunity for challenge cannot be construed legal.
As pointed out by Article 14: “India does not have a union law that regulates such demolitions, but every state has its own laws and procedures. “
And those procedures ought to be followed, especially in a rights-based democracy.
In Zenit Metaplast Pvt Limited vs State of Maharashtra, the apex court stated that “every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion.” The court further said that action should “neither be suggestive of discrimination" or "even apparently give an impression of bias...”
Needless to add, right to shelter is an aspect of right to life - as has been held by the Supreme Court - and therefore, a fundamental right.
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