20 Juni 2022

The Rule of Law in a Reign of Terror

“You know, my younger sister was born in that house. Our house is as old as my younger sister, in some sense. And it was our space: we could be ourselves; we could be free… Of course, it is happening not just to my family. It’s happening to a lot of families across India, and it’s not just happening in UP, it’s happening in states where there are ‘secular, progressive’ governments. People are being martyred. That is the price the Muslim community is paying, for nothing.”

—Afreen Fatima, student activist, on the demolition of her home by the state of Uttar Pradesh.

On June 10, protests broke out across India against incendiary comments made about the Prophet Muhammed on prime-time television by the national spokesperson and on Twitter by the Delhi media head of the Bharatiya Janata Party (BJP)—the Hindu nationalist (Hindutva) party in power in the Union government and in several state governments. The state apparatus sprang into action, dispersing protestors, in many cases with undue violence. The government of Uttar Pradesh wasted no time in drawing up a list of ‘masterminds’ of these protests and (purely coincidentally, of course) demolished the houses of those named in the list on account of their dwellings being, apparently, ‘illegally constructed’.

Afreen Fatima’s father, Javed Mohammad, found himself incarcerated, and his family given mere hours to move their belongings before bulldozers reduced their home to rubble on June 12—a spectacle broadcasted to millions across the country. The family received notice of the demolition late at night on June 11; the document names Javed Mohammad as the owner of the house, while it is, in fact, his wife’s property. Inconsistencies abound. In another city, a building belonging to a ‘close aide’ of an accused was demolished. The Superintendent of Police was quoted saying, “We are taking strict action to break the backs of such perpetrators so that they don’t dare to do any illegal activities,” laying to rest any doubts about the link between the protests and the demolitions.

In April, too, the country saw a spate of demolitions, in the wake of violence engendered by sword-wielding, gun-toting Hindu supremacist groups entering Muslim dominated localities during religious processions. While the open brandishing of arms and the provocative sloganeering was what ought to have been investigated, Muslim households were demolished on grounds of illegality instead. This, during the holy month of Ramzan and one of the hottest summers in history.

Contextualising the Demolitions

Over the past few months, the bulldozer has emerged as a powerful metaphor for the brute force of the state and the endless machinations of Hindu supremacists to flatten any difference or diversity they encounter. Tempting as it is, to think of the recent demolitions as a shocking new development, in fact the bulldozer has always been a significant determinant of the contours of space in India.

The Housing and Land Rights Network (HLRN) estimates that between March 2020 and July 2021—peak pandemic—the Indian government demolished over 43600 homes and forcibly evicted more than 257700 people. That’s approximately 21 people an hour, in the midst of a public health crisis that had already increased economic insecurity manifold. Action of this kind is justified through two routes in the law. First, by selectively leveraging planning statutes, building regulations, municipal codes and environmental law to term people ‘encroachers’. Or, for the few who do have clear title over the land they occupy, by using a bevy of land acquisition statutes to forcibly acquire their land towards ‘public purposes’.

The first is germane to what we are seeing right now. India continues to plan its cities using colonial planning practices at odds with the messy realities of the spaces they attempt to govern. As a consequence, it’s an openly acknowledged fact that a vast majority of the inhabitants of Indian cities live in ‘illegal’ structures. These may be termed so for myriad reasons, including falling afoul zoning norms or building codes, for lacking requisite municipal permissions, for having been sold by an owner who had only an inalienable title over the property and for the lack of paperwork altogether. This illegality persists across class locations, yet the bulldozer visits only some homes. The rich pay nary a cost for flouting the law; at best, should government coffers need filling, they may be required to cough up a fine in order to have their dwellings ‘regularised’. The most vulnerable inhabitants of the city, however, meet the bulldozer with alarming regularity, often several times through the course of their lives. Thus, it is not just Muslim households facing the brunt of this state-sponsored violence. In the same period, for example, the Haryana urban development body demolished (for the second time in as many years) the homes and shops of 200 Garhi Lohar (an indigenous community) families who had been living there for upwards of a decade.

Treating these demolitions as just housing rights questions, however, would be to miss the wood for the trees. They lie at the vicious intersection of crony capitalism and a majoritarian politics that is unwilling to brook the slightest expression of dissent from minorities in the country. One major reason for evictions and demolitions in Indian cities has been to free up land in the heart of the city that can then be monetized as prime real-estate. The demolition of the Garhi Lohar settlement, for instance, was reported in the media as freeing up 25 acres of land for the Haryana government. Such action consistently pushes working class families from the centre of the city to its periphery, at great cost to their livelihood prospects, access to healthcare and education.

Using housing illegality as a garb to inflict extrajudicial punishment for dissent, too, is not novel, though the frequency and impunity with which it is being done today is alarming. In 2016, for example, indigenous leader Soni Sori was threatened with the demolition of her home for similar reasons. The state action must also be viewed in the broader context of widespread violence against minorities, the continued incarceration of journalists, student leaders and human rights defenders on trumped-up charges, and the labelling of all dissent against the government as anti-national and seditious. The messaging is clear: minority articulations against the growing intolerance in the country must be quelled at all costs.

Legal Questions and the Possibility of Legal Redressal

The Supreme Court of India has held, in a range of cases, that the right to shelter forms a part of the right to life under Article 21 of the Constitution. In Shantistar Builders v Narayan Khimalal Totame, it spoke of the ambit of the right as including “suitable accommodation which would allow [a person] to grow in every aspect – physical, mental and intellectual.” This articulation has then been used by judges in some High Courts to mandate public consultation and the creation of resettlement and rehabilitation plans prior to eviction, in situations where in situ rehabilitation was deemed impossible.

While such decisions are still the exception, courts have been unanimous in holding that adequate notice is a minimum prerequisite for an eviction to be deemed legal. This requirement also finds its place in several of the state statutes under which demolitions are ordered.

To be clear, demolishing homes, especially of those already living in precarity, without considering alternatives and without accounting for the structural reasons for housing illegality—archaic laws, discrimination in access to housing—is inhumane and unjust, regardless of the legality of the action. That said, it is a statement on the gross disregard the Indian state has for the dignity of its citizens that it did not meet even this flimsy procedural safeguard of adequate notice in any of its ordered demolitions. This fact has been brought to the attention of the Supreme Court and it is to be seen what concrete action it chooses to take, should it find that due process had not been followed. While the Indian jurisprudence on compensation for rights violations is patchy, the Court would do well to award punitive damages, to disincentivise further such action.

Should the courts be willing to see the demolitions in their broader political context, not merely as cases involving illegal structures, then greater possibilities of legal redress open up. For one, there is a strong case to be made that the state action is discriminatory, in that it targets particular communities, and falls afoul the right to equality under Article 14 of the Constitution. This is true both in terms of the localities being targeted (minority dominant neighbourhoods) and the kind of action taken within a given locality. For example, in Jahangirpuri in Delhi, the entrance to a mosque was demolished but a temple just 100 metres away escaped unscathed. In Madhya Pradesh, Hindu tenants of shops were allowed to clear out their goods before the demolition began, while Muslim shopkeepers were not.

Besides, if the obvious connections are made, the demolitions appear as instances of extrajudicial punishment with little to do with urban planning as such. Given that there are statements from state functionaries—ranging from police personnel to Chief Ministers of states—in the public domain that make those connections apparent, the officials who ordered and undertook the extrajudicial punishment should face disciplinary action.

The Supreme Court has the power to do ‘complete justice’ under Article 142 and has, in the past, developed several unconventional tools using this power. These include taking suo motu action based on news reports, appointing independent commissions of enquiry for fact-finding, requiring governments to update the Court over extended periods of time (instead of simply issuing a judgement). Indian courts have, infamously, transformed petitions about solid waste management into inquiries into housing informality, expanded the ambit of individual petitions to cover entire cities. If the Court is so inclined, it has enough by way of precedent to permit it to alter its terms of engagement with the petitions before it, look at the demolition cases within the context of majoritarianism and state excess, and to rule accordingly. The question is, will it?

Reckoning with the Limits of the Law

While engaging with legal institutions is important and, often, inescapable, nothing in the Indian judiciary’s track record on eviction cases or its response to Hindu majoritarianism gives one cause to hope. For all of the courts’ rhetoric on the right to housing, 51% of those whose houses were demolished in 2020 (approximately 88560 people) were rendered homeless by a direct order of an appellate court. Courts have stood by and watched as genocidal calls against Muslims are issued in meeting after public meeting; as an 84-year-old indigenous rights activist died in jail awaiting bail; as young Muslim men are tortured in custody for having, at this point, the audacity to exist. Student leaders, journalists and human rights activists have spent years in prison under this regime, without receiving bail from courts, while men who incite violence and use their space on prime-time television to foment hate walk out of custody clutching their bail orders within days of being arrested. Working the courts may result in some piecemeal relief as one encounters the occasional conscientious judge, but it will not stop the bulldozer.

What will? On May 10, a bulldozer trundled into Shaheenbagh, in Delhi, only to be engulfed by a sea of people. Two hours later, it beat a meek retreat. On June 5, the BJP issued a statement stating it respects all religions, suspended its national spokesperson and Delhi media-head (with Indian diplomats terming them fringe elements) as the governments of several countries began to ask sharp questions about their comments on the Prophet Muhammed. People’s movements and diplomatic pressure work.

This makes one wonder: where were the opposition parties and their cadres during all the other demolitions across the country. Why does the lynching, incarceration, everyday vilification of Indian Muslims not cause the same outrage that remarks about the Prophet rightly did? Why did the Prime Minister of the United Kingdom think it fit to pose, grinning, in a JCB bulldozer while Muslim households and livelihoods had just been demolished by that very machine? Why do heads of states agree to hold press-conferences sans questions at the behest of the Indian Prime Minister?

The simple truth is, India is witnessing the cremation of the rule of law at the hands of the high priests of Hindutva, while the Indian elite and the rest of the world watch on in relative silence. The tactics of the government raise several legal questions to be sure, and must be contested in every available forum. But real relief, I dare say, is unlikely to be found in legal action, as much as in the breaking of this silence, through robust political mobilisation and relentless international scrutiny.

SUGGESTED CITATION  Mukherjee, Anindita: The Rule of Law in a Reign of Terror, VerfBlog, 2022/6/20, https://verfassungsblog.de/the-rule-of-law-in-a-reign-of-terror/, DOI: 10.17176/20220620-153238-0.

One Comment

  1. Sanjeev Sinha Do 23 Jun 2022 at 10:18 - Reply

    I read this article – it is quite disturbing ! 
    The fact that the author can write such articles is itself contradictory to what she writes – that criticism and dissent of the Government is not allowed. She also herself admits that protesters stopped a bulldozer , which also goes against her arguments.
    She does not mention that the critical remarks made by two BJP people were criticized by everyone in the country, including the Government. BJP removed both of them from their positions in the party and in fact sacked one of them (Mr Naveen Jindal- a very senior Industrialist and MP ) from the party even before any country or people noticed the comments !
    However, having said this I agree that the Government should follow the due course of law before demolition of illegal constructions. I am sure that the Courts will rule on this issue. It’s surprising that the Author , a Hindu, and a law student, criticizes the Judiciary and has little faith in it, including the Supreme Court ! I agree with her that the Judiciary in India is weak – because of corruption in the lower courts and time taken to provide Justice in court cases. However till date I have not read and heard of any wrong or biased judgments from the High courts / Supreme court !

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