The recent demolition of a 700-year-old mosque in the Mehrauli area of Delhi is just the latest example of an underdeveloped legal policy on demolitions. How do we ensure that justice is done in such cases?
—
ON January 30, 2024, the Delhi Development Authority (DDA) demolished the 700-year-old Akhundji mosque situated in Mehrauli on the pretext of it being an “illegal structure” inside Sanjay Van, which is a reserved forest area.
The demolition was brazenly carried out during the wee hours of the morning. People living in the compound were not even provided adequate time to remove their belongings.
It has been reported that no prior notice of the demolition was sent by the DDA to the masjid committee. Locals further claim that the authorities scrapped the remains of the shrine to remove all evidence of the demolition.
Children studying in the now-razed Behrul Uloom Madrasa were asked to exit the complex barefoot without warm clothes, leaving them out in the open during a cold windy morning.
Over the last few years, demolition drives have become commonplace in different parts of the country, with entire neighbourhoods being razed down in certain areas.
On a preliminary inquiry, DDA officials stated that the demolition was carried out pursuant to a decision by the religious committee on January 4, 2024.
Over the last few years, demolition drives have become commonplace in different parts of the country, with entire neighbourhoods being razed down in certain areas.
The facts and circumstances under which these drives are carried out reveal dangerous patterns and require urgent intervention. This blatant violation of Article 21 of the Constitution of India, which recognises the right to housing as a subset of the right to life, not only serves as a major blow to the rule of law but has also invited criticism from different parts of the world.
Lack of due process
Statutes that enable the demolition of unauthorised buildings or premises unfit for habitation provide that no such demolition should be carried out without serving adequate notice to the affected persons.
Also read: Experiments with truth, Part 3: The moral and political dilemmas of housing rights
The requirement of notice is also accompanied by the obligation of providing a reasonable opportunity to be heard and show cause against the demolition, in accordance with the principles of natural justice.
However, in most recent cases of demolition, including most of the Mehrauli demolitions, notices have either not been served or have been served in a manner that renders the purpose of such notices meaningless.
Further, the use of bulldozers has now become synonymous with such demolitions since people are forcefully evicted from their dwellings under the threat of physical violence and are often not even provided enough time to retrieve their belongings.
The lack of effort to meaningfully engage with affected communities or provide them with alternate housing facilities exacerbates the vulnerability of those at the receiving end of such forced evictions and overnight demolitions.
In most recent cases of demolition, including most of the Mehrauli demolitions, notices have either not been served or have been served in a manner that renders the purpose of such notices meaningless.
‘Good faith’ clauses housed under local laws enable officials ordering such demolitions to enjoy complete impunity by providing that ‘no suit, prosecution or legal proceeding shall lie against any person for anything done or intended to be done in good faith’. Notably, such a provision is also contained in Section 51 of the Delhi Development Authority Act, 1957.
Rehauling the existing framework
The wide-ranging powers provided to the State in determining and classifying building(s) as unauthorised constructions need to be re-imagined by laying down clear standards pursuant to which demolitions of such buildings may be carried out.
This may be done in accordance with the United Nations Basic Principles and Guidelines on Development-based Evictions and Displacement, 2019 to uphold the right to housing and other allied human rights.
In addition to the above, the current notice and show cause regime also needs to be rehauled. The prevailing system places an undue burden on the affected person to show cause as to why their dwelling should not be demolished.
Given that those at the receiving end of such notices are often persons from vulnerable communities and low-income groups, they seldom have the resources to make representations or seek timely judicial intervention. Alternatively, the burden of producing evidence and substantiating the validity of a demolition Order should be placed on the official ordering such demolition to ensure that every Order meets the test of due process and spells out concrete reasons for the proposed demolition.
Meaningful engagement with affected communities and provision of alternate housing through timely rehabilitation should be hardwired into the legal framework in accordance with the guidelines enunciated by the Supreme Court and various high courts.
Further, in order to ensure that these provisions are abided by, suitable mechanisms for affixing personal liability should be formulated, including by way of disciplinary proceedings and pecuniary penalties. It is envisaged that this will add an additional layer of scrutiny and deter malicious exercise of power.
The need for additional safeguards
The alarming trend of large-scale demolitions requires putting in place additional safeguards, particularly where entire neighbourhoods or settlements are proposed to be demolished. In each such case, a tripartite process may be followed prior to carrying out the eviction process.
First, the intent to demolish a settlement, along with concrete reasons, should be published in at least two widely circulated newspapers to invite objections. The proposal along with objections, if any, should be examined by an independent committee comprising State officials as well as judicial members and civil society representatives.
The intent to demolish a settlement, along with concrete reasons, should be published in at least two widely circulated newspapers to invite objections.
Lastly, community engagement with those who are likely to be affected by the demolitions should be carried out to provide such persons with alternate housing under requisite schemes.
At the time of making the demolition or evicting people from their premises, the use of force should be minimised and bulldozers should not be used until the premises have been completely evacuated.
Given that these violations are not individualised but rather systemic, legislative reform must in any case be accompanied by robust judicial action and public campaigns to raise awareness about the extrajudicial nature of such demolitions.
