Illegal demolitions in the light of domestic and international law

While being a staunch supporter of human rights since independence, India has been unable to stop the escalating violations of human rights on its soil.

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THE recent spree of house demolitions in Jahangirpuri, Khargone and Prayagraj follow an eerily similar pattern. These demolitions were carried out soon after communal violence took place in these areas, particularly targeting the homes of a particular community or the homes of the so-called 'masterminds' of the violent outbreak. One is forced to think- can it be possible that all the 'masterminds' build a home illegally?

The 'bulldozer' politics has become a new buzzword in the Indian political setup where one party has been advertising it as a symbol of its commitment to sound law and order situation in the states governed by it. Isn't this 'bulldozer' model of governance, a violation of basic human rights and international law? 

Trampling upon human rights

Human rights are those rights which are an inherent part of human existence. Their existence is a prerequisite for the existence of a civilised society. With the growth of human civilisation, there has been increased recognition of human rights. Thus, many international bodies have written down charters, conventions and the like for the protection of human rights. 

India as an independent nation has not only signed and ratified them but has also played a pivotal role in their drafting. Two such important documents are the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

However, while being a staunch supporter of human rights since independence, India has been unable to stop the escalating violations of human rights on its soil. The latest happenings in Prayagraj paint a dreadful picture. Herein, the victims allege that the municipal authorities did not follow the established procedure and instead twisted the system to suit the requirements of the Government. 

The UP Planning and Development Act and The U.P. (Regulations Of Building Operations) Regulations, 1960 require the authorities to not only give prior notice to the owner to present his/her case but also a reasonable time of 15 days to do the same. However, as per the claim of the victims, the notice was served to  Mohammed Javed.    Javed is not the owner of the house (as per records, his wife is the owner). The notice was served on the intervening night of June 10 and 11 and the demolition was carried out on  June 12. 

Thus, if the claims of the victims are true, then the Prayagraj Municipal Authority has committed a series of violations of human rights. Punitive and retaliatory law and order acts fall within the umbrella of forced evictions, according to the UN Office of the High Commissioner's Fact Sheet. If carried out, such evictions violate the victim's rights under the International Covenant on Civil and Political Rights. These are inclusive of the right to life, freedom from cruel treatment, right to privacy, and right to effective remedy.

The victims of the demolition were neither given time to respond to the notices nor were they allowed to salvage their belongings before the demolition.  The authorities did not provide the victims with alternative accommodation before carrying out the demolition, which is an established international norm before carrying out the eviction. This clearly falls foul of the due process and the right to dignity of the victims. 

Most importantly, these deprive the victim of his right to adequate housing, as explained under Article 25.1 of the UDHR: 

"Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."

Also read: Why shouldn't law hold Chief Ministers of Uttar Pradesh and Madhya Pradesh accountable for illegal demolitions?

 Furthermore, Article 11.1 of ICESCR has reaffirmed Article  25.1 of UDHR by stating that,

"The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions."

The scope of this Article, as elaborated by the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR), highlights the need to protect the right to adequate housing from forced eviction, harassment and other threats.

The action of the authorities has not only deprived the 'accused' of his property but also his family members of a shared household. The family members have been collectively punished for no crime committed by them. 

Also read: Eminent former Judges and senior advocates appeal to Supreme Court to stop illegal demolitions and arrests in Uttar Pradesh

In European Roma Rights Centre v Greece. the court found that forced eviction violated the right to housing which is central to family life under Article 16 of the European Social Charter on the right of the family to social, legal and economic protection. This interpretation can be applied to the present case as well; however, India does not have a law which explicitly recognizes this right.

Moreover, these actions do not stand the test of the human rights jurisprudence in India. Article 21 of the Indian Constitution states, "no one shall be deprived of his right to life and personal liberty except according to the procedure established by law". It must be noted here that protecting life is not only inclusive of protecting it from death, it also includes ensuring dignified and just conditions for sustenance. 

Also read:  Why the trend of summarily demolishing properties of alleged criminals is patently illegal?

The phrase 'except according to procedure established by law' puts the onus on the State that its actions are not capricious or unreasonable. The actions must not only follow the procedural aspects of the law but also it must satisfy its substantive content. The Supreme Court in the seminal cases of Olga Tellis and Francis Coralie held that the right to life includes the right to shelter, food, clothing and all those necessities which ensure a dignified existence of human beings. 

This case has also resulted in the violations of the principles of natural justice. In the landmark case of Maneka Gandhi, the Supreme  Court observed, 

"A divorce between natural law and our constitutional law would be disastrous. It would defeat one of the basic purposes of our Constitution."

As the parties were not given the opportunity to be heard,  there was a clear violation of our constitutional provisions. It must be noted that in an attempt to set an example before the masses and to prevent the culprits from repeating their mischief, the government has tried to cross its limits and encroach upon the functions of the judiciary to decide the punishment for the 'accused' which is disproportionate, unreasonable and arbitrary.

Thus it is established that the actions of the state reflect another instance where it has acted in complete disregard for the due process of law and human rights of the people. 

It is expected from the Supreme Court, that when it takes up the matter, its directions uphold the right of the people to basic freedom and ensures that the due process of law is followed within the territory of India, ultimately doing justice to both international standards of human rights and standards set by Article 21 of the constitution of India. Such a judgment will reinforce the faith of the people in the Judiciary and will give them hope that the judiciary is there to protect them from unjust actions of the state.