With the advent of the Yogi Adityanath government in Uttar Pradesh there’s trend that also get flight is “The bulldozer Politics”.
As the term bulldozer is itself able to give an implied meaning. The bulldozer politics is the politics with the concept of demolition action that takes on the suspected person involved in the communal riots. Though, these actions are not in line of procedure followed to penalised someone. The major criteria that played a crucial role behind these actions was that these people are involved in the riots and threat to public order. However, that involvement not subjected to investigation of police or any other investigating agency. Mere a suspect became the culprits by urgent actions.
The subsequent article will try to evaluate a chronological order of these happenings. The article will analyse the origin and evaluation of these type of urgent and strict action of state. some questions that arose with these actions was whether these actions are according to procedure established by law? These actions also raised a difficult question on legal validity of these and its effect on doctrine of separation of power.
The Demolition as A Penal Action: Is Justified?
The contentions of the up government that these steps are in form of penal action which are crucial and reasonable to ensure the rule of law and order. Ironically, the bulldozer which is used for building new infrastructure like home, offices, roads and industries are now used for demolition of this infrastructure. Same contentions given by Madhya Pradesh government that these steps became very important to establish the peace, order and stability in society.
The big question that posed on these contentions is that whether these simple reasoning is amount to justification. Before scrutinizing the legality of these actions we should put more emphasis on basis of action. What are those forces which lead to these type penal actions.
When India got independence that was not just mere based on shift in form of government but this was like a new morning of own rule, own constitution and own procedure. The constitution assembly was a bit confused and in clashes whether Indian constitution should adopt the due process of law or concept of procedure established by law. After a lot of discussion and dissent finally it adopted the concept of procedure established by law.
“Procedure Established by Law” means that a law is duly enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter”.
In the relevance of this important attributes is access to trial SC emphasized in various held cases. “The issue is akin to ensuring equal access to justice. A fair and proper investigation is always conductive to ends of justice and for establishing the rule of law and maintaining proper balance in law and order”.
In a subsequent case A.V. Ballamen v. Santhakumar Nair Madras HC put more light in these type of arbitrary action Court decided “Free and fair investigation and trial is enshrined in article 14, 21 of Indian constitution. The state duty is to ensure these Right of trial. Any procedure which comes in a way of a party in getting fair trial would in violation of article 14 of the constitution”.
“The principles of rule of law and due process are clearly linked with human right protection. Such rights can be protected effectively when a citizen has recourse to court of law, it has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair and to all concerned“.
By analysing these held cases we can draw a rough analogy that fair trial is itself embodied in chapter of fundamental right so, they can’t ignore in an any action of state. But the government contentions that bulldozer action that taken by government is in compliance with procedure get contradicts. Therefore, it can logically conclude that the action taken by respective government resulted in denial of enjoyment of fundamental rights.
The Act: Whether inspired by Political Agenda.
The inception of these actions took place after the protest happened against citizenship amendment act and national register of citizens (NRC).
The first idea that get hit to the state government of Uttar Pradesh to make public the identity of those suspected persons who were involved in any kind of violent protest. The Lucknow police as an action put posters of suspected persons in public places. Later, Allahabad HC through calling it “an unwanted interference in the privacy of people” ordered UP government to remove these hoardings”.
These were like as seed that sown for further output. This was the origin of bulldozer actions which based on suspicion of protestors involvement in Riot, planning or organising it.
In this meantime a question that raised by various political leader was that whether it a state action against a specific community or inspired by political agendas and ideological differences. This question got a valid recognition because the people against whom the action were taken primarily belong to minority section. The action taken place in Delhi, Uttar Pradesh, Madhya Pradesh and Gujarat. The ruling government of these state were of BJP which has an inclination toward majoritarian politics.
By referring to statement given by Madhya Pradesh home minister Narottam Mishra ” jis ghar se Pathar aaye hain us ghar ko Pattharon ka hi ghar banayenge”(The house from where the stones came will be made a house of stones only). The statement criticised by opposition and held it a statement against a particular group.
Executive overreach & Demeaning Judicial Authority
India as a union of state and regulated by concept of division of power among state and union government. The area matter of different state government are regulated according to the various lists given in seventh schedule of constitution. These type of executive actions fall under the state list and the implementation of these demolition process lead by state government.
The basic requisite is that these action whether by Union government or State government should follow the procedure established by law. Justice V. Gopala Gowda While talking about the scope of right to property articulated that “The right to property under article 300A is a human right”. The same contentions raised by Jamiat Ulama-i-Hind through a Plea in which the organization contended some sections of state laws regulating these type of state actions.
The Primary contention was that “Demolition of Properties carried out by the Uttar Pradesh government in retaliation was in breach of the laws enacted by state legislature itself”. The contention seems valid on a depth scrutinizing of concerned state laws.
“The prescribed authority may make an order directing that such property shall be demolished by owner thereof within such period not exceeding two months as specified in order and after failure of owner the prescribed authority may itself execute the process of demolition and expenses of such shall recoverable from owner in same manner as land owner”.
“Provided that no such order shall be made unless the owner has been given an opportunity of being heard”. So according to reasoning given in this section it’s clearly put a mandatory condition of issuance of notice prior 2 month and an opportunity of having heard of such party. In these particular bulldozer actions there were no prior notice to such demolition and neither a reasonable opportunity to being heard.
“Order of demolition of building can be made by competent authority may make an order directing that such development shall be removed by demolition such period not being less than fifteen days and more than forty days from date on which a copy of order of removal, with a reason has been delivered to that person as may be specified in the order and on his failure of this the authority can initiate the Demolition “. Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not made.
Against the Principle of Audi Alteram Partem
The dictionary meaning of the maximum Audi alteram partem is that hear the other side, hear the both sides. In the application meaning authority hearing the matter must be afforded hearing to the party who is likely to be affected by its decision.
However, this cardinal principle of natural justice is not followed in the actions of demolition in this case the steps of demolition was arbitrary in eyes of law. Hence, these steps prevent the aggrieved party from defending themselves that’s why it not just against the principal but also put big concern over the due process of law.
The principle of Audi alteram partem based on the notion that there should be a reasonable opportunity provided to other party. Hence, the role of issuing notice become crucial.
In the landmark case Olga Tellis & Ors. v. Bombay municipal corporation & Ors. SC on dealing with question of a notice as a legal requirement and what’s the importance of principle of being heard before the process of eviction of people who residing in illegal slum observed that even a trespass should be given an opportunity to defend before force is used to expel him.
In another landmark case Meneka Gandhi v. U.O.I. in process of interpretation of Article 21 of constitution SC stated that due process of law is an integral part of procedure established by law. In more explanation referred that procedure must be fair, just and reasonable.
SC in a case titled Municipal corporation Ludhiana held that if there is prescribed condition to issue a notice before any action then this requirement must be fulfilled. In many subsequent cases the apex court made it clear that no any authority can proceed directly with demolition. Even not in case when the construction is illegal. The opportunity of heard and notice condition must be followed.
The Procedure established by Law Must followed.
The inception of democracy and Liberty based on one prime requisite of freedom to expression of ideas. This expression includes expression by ideas, Dress, Rituals, and other form of communication. This principle already enshrined in fundamental rights portion of our constitution in form of Article 19. The mammoth structure of this article stands on pillar that is access to justice. The first procedure is that ensure the opportunity to trial before a court even for a criminal convicted of heinous crime.
Illegal encroachment must be demolished but that should comply with the constitutional values and procedure established by law. The steps that are taken by government are of serious nature and necessary to ensure development but the process keeps big question in itself. These question needs a redressal.
The very prime objectives of our constitution framers to ensure liberty, equality and freedom to expression to individual. These values reflected from preamble directly. The preamble contains the expression Liberty of thought, expression, Belief, faith and worship which means that the government abide to a duty of protecting these values not to breach it. In concluding remarks there is a excerpt from final speech of Dr. BR Ambedkar on the duty of government in constituent assembly “However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot”.
Author: Mayank kumar