Demolishing a home is akin to a civil death
The demolitions in Jahangirpuri were a travesty and an assault on the rule of law, as they went against principles of natural justice. The SC must use this case as an exemplar and punish the officials involved
The Jahangirpuri demolitions represent a doubleengine assault on the rule of law. The first assault is the failure to adhere to the principles of natural justice – basic to any free and fair justice system and the second is the failure to give due respect to the injunction issued by the Supreme Court (SC). On both counts, double-engine action should be taken by the SC to restore the status quo ante. First, the court should order payment of ad hoc compensation to those whose property, moveable or immovable, was demolished due to excesses by the State. Second, the court must hold all concerned officials accountable in real terms and not merely through passing strictures or expressing displeasure.
The law on encroachment on public land is clear. Quite obviously, there should be encroachment and that too on public land. Some victims of the excesses claim that they have valid papers and did not encroach on public land, but were not allowed to show those papers to those concerned. This is precisely why natural justice requires a showcause notice be issued to the alleged encroacher before taking precipitate action. A person must be told by the State through a written notice that, prima facie, it appears that there is encroachment and provide an opportunity to the noticee to dispel this view. In response, the noticee may produce necessary papers and authorisation to show that the prima facie opinion of the State is
incorrect, in which event the proceedings will be dropped. However, if the noticee is unable to authenticate the claim, an adverse order will be passed and necessary consequences will follow. According to some victims, this procedure was not followed; the onus for proving that the procedure was followed as mandated by natural justice apart from statutory requirements, then shifts on the State. The official records (not in a sealed cover) will reveal the true picture.
After receiving an adverse order, a noticee has three options: File an appeal against the order and obtain an injunction against demolition; remove the encroachment at his or her own cost, within a specified time; or wait for the State to remove the encroachment within reasonable time, depending on the nature and extent of the encroachment, with due
notice (it could be one day), to enable the encroacher to remove all belongings from the site of encroachment.
These options were apparently not given to the residents of Jahangirpuri. Thereafter, with the assistance of a posse of about 1,500 policemen and a few companies of the Central Reserve Police Force (CRPF), bulldozers brought in by the State were allowed to let loose mayhem on the streets of Jahangirpuri.
Apart from demolition of immovable property, two other events occurred on the fateful day. One, the demolition, as reported, was to commence in the afternoon, but in a preemptive strike, it commenced in the morning, thereby depriving the residents of the first two options. Was the demolition drive advanced and, if so, why? It is for this arbitrary action that the residents approached the SC for relief. Two, there are credible reports that a thela or handcart belonging to a petty trader was smashed to smithereens by a bulldozer. This was obviously not immoveable property and the trader could have been directed to move it elsewhere if it was obstructing the demolition proceedings. The man has now lost his means of livelihood. This is not just shocking, but also illegal and grossly unfair. Please imagine yourself in his chappals: You go to visit a friend in some locality on a given day and after the visit, you find your car smashed by a bulldozer for the ostensible reason that it is encroaching on public land. Would you believe what happened?
How would you react to this travesty of justice?
Now, another crunch issue – violating the order of injunction passed by the SC. Anybody in Delhi who was aware of the possibility of a demolition in Jahangirpuri and keeping a tab on it knew that the SC had issued a stay order. This was broadcast everywhere. The officials paid no heed to this even though they knew of the stay order -- they chose to ignore it because a certified copy was not made available. Is there a huge trust deficit in our country, where officials do not believe citizens and the media? Assuming the officials were given false information, halting the demolition for a while would not have resulted in irreparable harm. The demolition could have been carried on after confirming the facts. On the other hand, property once demolished causes irreparable harm. It’s not easy for anyone to overcome the anguish and trauma of seeing their
homes demolished.
Given the circumstances, the SC should use the Jahangirpuri demolitions as an exemplar and punish the erring officials whoever they may be. The demolition of one’s home or means of livelihood is equivalent to civil death. In my view, accountability is the long-term solution. The officials must be held accountable, personally and institutionally for brazen defiance of the rule of law. They should not be allowed to get away with impunity. Officials and the police do not have any special protection akin to the dreaded Armed Forces (Special Powers) Act. Delhi is not a disturbed area. If officials are allowed to get away without much ado, we might as well bid goodbye to the rule of law and constitutionalism and usher in the rule of flaws.