Jahangirpuri: Demolition, as vigilante justice, is illegal

Across states, this “bulldozer justice” has targeted people who are overwhelmingly poor and overwhelmingly Muslim. While in states such as Madhya Pradesh — for example — the demolition has already run its course, in Delhi, it was temporarily halted after an urgent order from the Supreme Court. However, unless this practice is promptly nipped in the bud by the judiciary — which remains the only institution with the power to stop it — there is a very short road from the present situation to a full-fledged mob State.

The moral bankruptcy of the administration is revealed by its two-faced approach to the issue. In the immediate aftermath of the riots, various statements were made that the homes of the rioters would not be spared, and that the “bulldozer” would arrive shortly. However, it is abundantly clear that this narrative would fall apart the moment someone challenged it in court. The administration — that is, the State — is bound by the rule of law, and is not allowed to dispense vigilante justice by tearing down people’s homes, no matter how much a majority might cheer on such actions.

Indeed, it is the job of courts to determine guilt and innocence in matters such as riots, after dispassionately assessing evidence. And even after an individual’s guilt has been established, civilised societies do not recognise home demolitions as a justified penalty. This is because demolishing homes that shelter entire families is a form of collective punishment, which does not distinguish between the guilty and the innocent (indeed, often, there will be entire families — including children — in those houses). Home demolition in response to allegations of rioting, therefore, is akin to medieval wars where armies would poison wells of villages that were suspected of harbouring enemy soldiers, so that both soldiers and innocent civilians would be deprived of water. Needless to say, this form of punishment is unsuitable in a constitutional democracy.

Having realised, no doubt, that this justification could not stand, the administration then changed its stance and publicly claimed that the properties slated for demolition were “illegal encroachments”, and could, therefore, be legally demolished. Indeed, in Jahangirpuri in New Delhi, the administration stated that it was conducting an “anti-encroachment drive” – which it continued for at least an hour even after the Supreme Court (SC) ordered a halt to it.

The language of an “anti-encroachment drive”, however, fools nobody. The fact that in all of Delhi — 65% of which is home to “illegal” colonies — the administration picked out the specific locality where riots took place, and targeted the specific houses that it had earlier claimed were sheltering rioters, makes it abundantly clear that the “anti-encroachment drive” is a smokescreen for the administration to continue to engage in vigilante justice, under the veneer of legality.

However, even if the administration’s claims were to be taken at face value, its actions are still grossly illegal. Under Indian law, it has long been established that no matter what the provocation, State agencies cannot march in without warning and destroy people’s homes.

The law requires that even when the administration believes that an “encroachment” is taking place, it must serve notice upon the alleged encroachers, and afford them an opportunity to be both heard and to challenge a demolition order before a court. Even after a demolition order has become final, the administration is required to afford individuals a modicum of fair warning before tearing down their homes, so that they can find alternative arrangements before they are put out onto the street.

This requirement of due process is premised on the common sense understanding that in many cases, encroachments are the result of human desperation: People build shelters “illegally” because the State and the social safety net have failed them. Their brutal removal only perpetuates State and public cruelty on the most vulnerable and marginalised. For this reason, courts have repeatedly held that individuals cannot be evicted from the only shelter they have without State agencies engaging meaningfully with them, and providing reasonable rehabilitation.

In the ongoing demolitions, none of these processes have been followed. This is, indeed, an increasing trend: In late 2021, there were large-scale evictions in Assam, where — again — there was State violence, and no due process. This makes the pending case before the SC — involving the Jahangirpuri demolitions — particularly important. It is true that the courts cannot solve our entrenched social problems, such as communal violence and riots. But the courts can, and must, stand up for the rule of law.

In this case, that means three things: First, reiterating that demolitions without due process, and demolitions as forms of vigilante justice, are illegal; second, ensuring that the State rehabilitates those whose homes have been illegally demolished; and third, fixing accountability upon officials who have carried out the demolitions.

Anything less would be an alarming retreat from the rule of law.

Gautam Bhatia is a Delhi-based advocate 

The views expressed are personal