In the context of the police violence during the eviction drive last week in Darrang, Assam,ATREYO BANERJEE and SHARDHA RAJAManalyse the continued systemic discrimination and violence meted out to marginalized communities in Assam leading to forced evictions done extra-judicially without following the procedure established under law.
IN his book ‘The Wages of Impunity’, human rights activist K.G. Kannabiran wrote on the interconnectedness of power, law and brutality, focusing on the post-colonial State’s key role in legitimizing and enforcing brutality against its own people. As Kannabiran points out, such brutality is routinized through collective State action, encompassing the tacit approval of the legislature and the judiciary, whilst being enforced by the executive. State-sponsored carnage is justified on the grounds of public order and national security: ambiguous terms which allow ample discretion.
The violence which has engulfed Assam’s Darrang district is a stark example of the state acting with impunity and aggression against its own people on spurious grounds. Yet, it is not surprising, given that the Bharatiya Janata Party (BJP) in its manifesto leading up to the assembly elections in Assam earlier this year had promised to combat “illegal encroachments”.
The morality of the Garukhuti project, similar to all development projects which induce displacement, rests on the argument of ‘public good’. Such displacement is advertised as necessary for the good of all, and relies on a perverted idea of ‘legality’ which neglects the fundamental principle of rule of law by contravening legal procedures.
In fact, a brief study of land used for development projects shows the disproportionate impact of governments’ land acquisitions, on the most marginalized communities. This is supported by evidence from civil society organisations in 2018 and 2019.
The enormity of the State’s power to disenfranchise communities is perhaps best witnessed through the slum eviction drives in post-independence India. From the evictions in Turkman Gate and Okhla Industrial Area, to the more recent eviction of millions from Khori Gaon, it is clear that such evictions which rest on reclaiming public land, are prejudiced, unjust and inequitable.
In the context of Assam, such disenfranchisement is worsened by the question of belonging, which is an open sore on its body politic. Being one of the territories which was ceded to the colonial government after the First Anglo-Burmese War, Assam has been home to a multicultural and multi-ethnic group of people.
Due to the lucrative tea plantations, large numbers of British India’s subjects were transported to Assam and indentured to work under grossly exploitative conditions. Eventually, these people settled around the Brahmaputra River, making the riverine islands (also known as “chars”)their temporary homes.
Second, they also face displacement on account of the frequent flooding and submerging of their homes. The recent eviction drive at the Dhalpur village in Darrang by the state government of Assam, which resulted in the murder of Haque and Farid, is a hybrid oppression inflicted on this community for belonging to the Bengali-speaking Muslim community, and for residing in areas susceptible to natural disasters.
It is in this context that the alleged illegality of Dhalpur’s residents must be measured. At its crux, it is a property dispute. However, seemingly neutral laws regularly impact marginalised communities disproportionately, and/or are implemented with greater vigour against certain groups, as is evident from the instances of development-induced displacement discussed earlier. Further, even for questioning illegal occupation/residence of Dhalpur’s people, the State is obligated to follow a procedure established by law.
Assam Land and Revenue Regulation, 1886
Dhalpur was categorized as “professional grazing land” belonging to the government. Official reports suggest around 800 people have been evicted in the current eviction drive, whereas the real numbers could be around 20,000, if not more. Multiple news reports suggest that the people being evicted were served with notices merely a few hours prior to the eviction.
Even if one assumes that the persons being evicted were indeed illegal squatters on government land, the ensuing eviction must be done following the procedure established by law. This would entail a fact-finding exercise to gauge whether a person is illegally encroaching upon the said land, or has a bona fide claim upon that land. Although the Chief Minister of Assam has stated that the eviction was not done overnight, and “discussions” were on for four months, such statements belie reality as it would imply that at least 800 of the evicted persons were duly served with notices, and found to have no bona fide claim on the land.
Initially, there were two routes available to the government to evict persons in accordance with the Land Revenue Regulation. The first route was under Rule 18, as per which the deputy commissioner is empowered to summarily evict a person who has encroached upon land that has previously been reserved for the grazing of village cattle or for any other public purpose. However, a person cannot be evicted or directed to vacate the land if they have a bona fide claim over the land. Rule 18 also mandates a publication of notice to provide the illegal encroacher with 15 days’ time to vacate the land.
The second route available to the government was to file a suit in a court of law against the person sought to be evicted, as the Land Revenue Regulation does not bar the government from initiating a civil suit. This means that a person sought to be evicted would have a larger bouquet of rights in the form of presenting evidence, filing written submissions, the right of revision and appeal, etc.
On the other hand, a person being evicted summarily under Rule 18 would have to establish the amorphous bona fide claim over the land in a much shorter span of time in an arbitrary and ad-hoc procedure.
Due to there being two routes for eviction without any guidance on under which circumstance the draconian summary process would be chosen over instituting a civil suit, the Gauhati High Court, in its judgment in the Bandhana Goala case in 1971, found Rule 18 be in violation of Article 14 of the Constitution.
Since summary evictions could not take place anymore, the Land Revenue Regulation was amended in 1971 and Regulation 154-A was inserted. This provided that any actions done under Rule 18 of the Settlement Rules would be deemed to have been validly done.
Therefore, government authorities could now evict with impunity as the person being evicted could not challenge that his eviction be tried in a civil court. Regulation 154-A would operate as a protective barrier to state actions of summary eviction in Assam since previously in Bandhana Goala, Rule 18 was found to violate Article 14.
It is worthwhile to consider what could have been – instead of protecting actions of summary eviction, the incumbent government could have amended the Land Revenue Regulation to do away with summary evictions completely, and a framework which would comprehensively determine a person’s rights over a portion of land could have been formulated. However, the same would be anathema to a State intent on diluting the procedural safeguards available to an impoverished ethnic and religious minority in Assam.
Evictions and the rule of law
Despite the prevalence of summary ad-hoc evictions, courts have read in certain safeguards which are aimed to protect persons being evicted under the Land Revenue Regulation.
In Bharati Das vs. Jorhat Municipal Board (2020), the Gauhati High Court observed that whether or not a person has a bona fide claim over the land can only be decided after the person being sought to be evicted has been given a right of hearing. In Bimal Das vs. State of Assam (2017), the High Court held that persons cannot be evicted under Rule 18 of the Settlement Rules without a notice being served upon them; once such notice is served, the persons sought to be evicted would have the liberty to take a stand that they have a legal right over the disputed land. This had been upheld by the High Court earlier as well.
In unequivocal terms the court held that persons cannot be evicted by force, and used Article 21 of the Constitution to arrive at this conclusion. In fact, in this case there was only a partial eviction – the church, some houses and other common property of the community, despite being constructed on land which has been encroached upon, was not demolished.
The Supreme Court, in Government of Andhra Pradesh vs Thummala Krishna Rao (1982), has observed that prior to undertaking a summary eviction, the duration of occupation must be determined. In other words, a person who is openly in occupation of a property for an appreciable length of time, prima facie acquires a bona fide claim to the property.
Although decided in the context of the Andhra Pradesh Land Encroachment Act, 1905, this judgment offers valuable insights in the context of Assam.
Previously, multiple governments at Assam have set up schools, primary health centres, aadhar centres and other common infrastructure in Dhalpur. Toilets have been built under the Swachh Bharat Mission. These facilities were provided over a period of time to better the lives of persons residing in Dhalpur, and such period of time could constitute an “appreciable length of time”. Moreover, a large number of these government-built and provided facilities are on lands demarcated for eviction, but have not been demolished.
Promises of subordination
Scholars have studied the effects of the Citizenship (Amendment) Act, in particular focusing on the way it makes Indian Muslims second class citizens in India.
In the context of Assam, the subordination of ethnic and religious minorities is routinised by state actions and legislations which metes out violence, and diminishes their social standing. How else does one explain the Garukhuti project, which seeks to empower a class of citizens while brutally inflicting violence upon another? The subordination of the ethnic and religious minorities in Assam is multidimensional – persons are evicted by state actors, giving a complete go by to procedural safeguards with the blessing of the incumbent state government. As the law lends the force of State power, the state government marches towards fulfilling its election promises. In evicting without properly serving notices, a right of hearing and without any fact-finding exercise to determine bona fide claims, the rule of law has been thrown aside, to usher in tyranny.
(Atreyo Banerjee is a B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences, and is currently an advocate practising across courts in New Delhi and West Bengal. Shardha Rajam is a B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences and is currently a Research Associate working for the Laws of Social Reproduction project, King’s College, London/IWWAGE, New Delhi. The views expressed are personal.)