Constitutional Validity of Bulldozer Justice: A Legal Analysis By - Nikhil Biju
Constitutional Validity of
Bulldozer Justice: A Legal Analysis
Authored By - Nikhil Biju
Introduction
India is the second most populous
country today and by 2023 she is going to by-pass China to become the world’s most
populated country. Though she has a decent economic growth, especially during
the past three decades, India has not succeeded in assuring basic infrastructure
and amenities to large sections of her population. Growing wealth and income inequality
between the rich and the poor and rising concentration of wealth in few hands are
adding to the plight of majority of the people. The most visible form of this
inequality is in the quality of structures in which they reside. Palatial
bungalows standing alongside thousands of tiny makeshift shacks is a very
common sight in most parts of the urban landscape across the country. Most of
these temporary shelters are illegal constructions which poses serious challenges
to urban planning.
The aim of this study is to discuss the
legal and human rights issues arising out of the efforts to control the problem
of illegal structures in urban locations. Allegations of discriminatory
treatment towards certain religious groups and sections of the population often
makes it to the headlines of national media and causes irreparable harm to the
secular fabric of the nation. In this context the study proposes the formulation
of a uniform legislation on demolition of illegal structures in India as a
solution. It also explores the feasibility of viewing the issue of illegal
constructions and evacuation in the light of right to shelter under Article 21
of the Constitution.
Urban planning in India
In order to fully understand India's
institutional framework for urban planning, the following questions must be
addressed: Who is in charge of city planning? Why are India's rules and
procedures governing urban planning structured the way they are? The answers to
these questions should be identified for resolving the existing problems of
India’s urban town planning and the key focus here is on illegal constructions.
Town and Country Planning
Organization (TCPO) formulated the Model Town and Country Planning Law in the
year 1960. This model Act was revised by TCPO in year 1985 as “Model Regional
and Town Planning and Development Law” to enact a comprehensive urban and
regional planning legislation in all the States and Union Territories (UT’s)[1].
The main contents include;
- Constitution of State Regional and Town Planning
Board by the State Governments for the purpose of advising on the
delineation of the region for planned development
- Directing the preparation of metropolitan,
regional and area plans by the metropolitan, regional and area planning
and development authorities
- Setting up of metropolitan, regional and area
planning and development authorities for different urban and rural areas
within the State to undertake preparation of development plans and to
enforce and implement them
- Coordinating the planning and implementation of
physical development programmes
The authority who determines a
construction to be illegal is the development authority of that particular
state. But the way these development authorities function are so complicated
and this make the ‘Master planning’ of the cities a herculean task. For
instance, the Delhi Development Authority (DDA) is established by Delhi Development
Authority Act of 1957. The functioning of DDA is very complex because of the complicated
and overlapping governance landscape of Delhi. DDA is performing the duties of
local, state and central government body. Even though DDA is a central agency,
along with Municipal Corporation of Delhi it has to do the functions of a local
authority. After making Delhi as a new state under the Government of National
Capital Territory of Delhi Act, 1991 some functions of the DDA are now shared
with the Government of the National Capital Territory of Delhi (GNCTD).
This is not just a problem with Delhi
alone and many other cities and towns are facing similar issues. Though the 74th
Constitutional Amendment was passed three decades back, still some of the
duties made for certain purposes under the law is not implemented by urban local
bodies. Duties such as planning for economic and social development, urban
poverty elimination, health, water supply, slum improvement and upgradation are
all areas where proper planning and implementation is lacking.
Waterlogging and flooding in cities
and urban areas across the country is mainly attributed to lack of proper town planning.
It can be undoubtfully said that the Chennai floods of 2021 was a direct result
of improper town planning. Chennai Municipality Development Authority is
responsible for the planning in the city. Slum improvement and upgradation
instead of being under the urban local body comes under the purview of the
Tamil Nadu Urban Habitat Development Board.
The Board does not include any of the elected members of the local
administration thereby minimizing people’s participation in implementing the
housing programs for vulnerable sections. Similarly, urban planning and
financing is controlled by parastatal agencies like the Tamil Nadu Urban
Infrastructure Trustee company Ltd. and Tamil Nadu Urban Finance and
Infrastructure Development Corporation. The programs that are planned could not
be implemented due to lack of funds. When there are multiplicity of governance
structures and no uniformity in procedures, timely and proper implementation
becomes so complex and almost impossible.
The sharply divided discussions and debates on razing to earth illegal
structures and tenements in several parts of the country has to be seen in this
backdrop.
The ‘bulldozer’ politics has become a
new buzzword in the Indian political setup where one political party has been
advertising it as a symbol of its commitment to sound law and order situation
in the states governed by it.[2] This
‘bulldozer’ model of governance, is a violation of basic human rights and
international law. Streaming of news in the mass media alongside visuals of flag
march of police, bulldozers and police vehicles has become a common sight. This
happened in several parts of the state of Uttar Pradesh and it is alleged that
this was an attempt from the side of the government to instil fear in the minds
of people, especially youth, to curb any protest that might arise as a result
of declaration of Agnipath Scheme which was facing criticism.
Current Scenario
Demolition of illegal constructions
are often projected by the concerned Governments as ‘anti- encroachment’ drives.
Many such instances were reported in media recently. For example, in Nagoan
District of Assam, the administrative authorities of the State demolished the
houses of people who were suspected of setting a police station in fire. Constructions
from which taxes were collected for a very long period of time were suddenly dubbed
as illegal constructions when they become accused or suspect in any
anti-government activities. Similarly in several parts of the country where communal
clashes occurred during Ram Navami festival,
news of anti-encroachment drive followed. One famous example would be
the Central government controlled North Municipal Corporation of Delhi (MCD) sending
a letter to the Deputy Commissioner of police for protection during the anti-
encroachment drive that was to happen on April 20 and 21 after a communal clash
was reported from the place. But this was stopped by the Supreme court by an
order. Soon in the second week of the next month south MCD decided to go on
with their Anti- Encroachment Drive which was stopped as a result of large
protest that emerged.
The demolition of house of Parveen
Fathima, wife of Mohammad Javed who criticized the speech of BJP spokesperson
against prophet Mohammad, also got widespread media attention. In this case the
“general mandamus” which was issued by Allahabad high court in Abbas Ansari and
Another v State of U.P. and 3 Others was not complied. The Allahabad
High Court ordered the general mandamus after noticing that numerous instances
were being brought before the court complaining about demolitions taking place
even before the deadline for filing an appeal had passed. The court said that
it was issuing the "general mandamus" in light of the Supreme Court's
categorical ruling in Chairman, Indore Vikas Pradhikaran v Pure
Industrial Coke & Chemicals Limited and Others (2007), which considered
the nature of town planning statutes in relation to the rights of citizens to
live. The Court reminded that a public authority may have general
considerations, safety or general welfare in mind, but at the same time it
should not forget the lawful rights of the party.[3] In
several instances structures for which government had been collecting taxes were
demolished alleging that they are illegal. Such instances raises the suspicion
that political or social motives are present behind such demolitions
Urbanization and illegal Structures
The real reason behind the emergence
of illegal structures in India is the growing urbanization in the country. Those
who live in the so-called illegal structures are poor people. The rich and the
upper middle class usually don’t face the threat of eviction or demolition. The
approach which government should take is to rehabilitate these people living in
these illegal structures and not to destroy them and send them to streets to
suffer. One important advantage of taking care of these illegal structures is
that by giving them proper housing facility many long standing issues which the
governments were trying for decades can be solved easily. Clean drinking water,
sanitation, hygiene etc. will improve if the state starts working on these
lines. Money that has been used for these things can now be diverted for
ensuring proper housing facility. There will additionally benefits like
reduction in water pollution, overall improvement of health indices of the
population, etc.
Approach of Judiciary
The approach of judiciary regarding
the demolition of alleged illegal structures is widely criticized. In a
democratic country like India, it should be the judiciary who should confine the
executive when their actions cross legal limits. But when the houses of
hundreds of people were demolished, especially that of Muslims on a wide scale
across India, the Supreme Court actually did nothing. This trend was followed
in states like Uttar Pradesh, Madhya Pradesh, Delhi etc where people who
protested were targeted. Even though a petition was filed by Jamiat Ulama -I-
Hind the Supreme Court made no intervention even though it was crystal clear
that the state actions violated principles of natural justice like right to be
heard, right to prior notice etc. The Court did not even take any effort to
issue an interim order to stop this state sponsored atrocities. The response of
the Court was to evade the case like how it was doing in the past such as in
electoral bond issue, demonetization issue etc.[4]
The landmark judgment of the Supreme
Court in Olga Tellis v Bombay Municipal Corporation.[5] held
that Article 21 which guarantees right to life also includes right to housing
and livelihood. In its 2010 ruling in Bal Kishan Das v Municipal
Corporation of Delhi, the Delhi High Court declared that issuing the
parties with a show-cause notice is a compulsory requirement. In Sudama
Singh and others v Delhi government and others, the court had ruled
that before government officials decide to evict someone from their home, they
must provide for an alternate residence with basic civic amenities that
preserve the person's right to life and dignity.
In principle, every municipal body is
mandated by law to give notice to the parties before attaching or causing any
damage to their property. Prior to the demolition of any building, notice must
be issued to the parties, according to Section 343 of the Delhi Municipal
Corporation Act, 1957. Additionally, it specifies that the occupant must be
given 5–15 days' notice before the commissioner personally orders the
building's demolition. No order of demolition may be issued, according to the
proviso of the Section, unless the person has been given a reasonable
opportunity to object by way of a notice provided in a manner the commissioner
deems appropriate.
Similar to this, the Madhya Pradesh
Bhumi Vikas Rules, 1984 compel the authorities to issue a notice to the person
who is allegedly breaking these rules, giving the perpetrator ten days to cease
the infringement.
The Central Government came out with
a National Housing Policy in 1988. The policy was revised in 2007 and right
now, National Urban Housing and Habitat Policy 2007 is in operation.[6] This
policy recognizes right to shelter as a basic need. The policy also recognizes
the correlation between shelter and development and it gives special emphasis
to urban poor. These are the people who are most vulnerable compared to rural
poor. If the action plans mentioned under the policy such as preparation of
15-20 years perspective plans in the form of City Development Plans (CDPs)
based on spatial planning at the city level had been implemented flawlessly,
the construction of illegal buildings would have been extremely difficult task and
could solve the problem in the initial stage itself. Later, with the help of
Local development authorities, proper housing facilities can be arranged.
International Scenario
Issues around demolition of illegal
structures is not just something which is happening in India. This has been a
practice which is being followed by several governments across the world to tie
up the mouths of their enemies. This has happened in Palestine, Pakistan etc.
in the past and one important example which can be analyzed here is the issue
of demolition of homes of Arab nationals in Israel by the municipality.
Buildings of Arabs are targeted there and are demolished saying they are
illegal buildings. Government there says the excuse that they are doing this to
protect ‘public order’ and peace, there by demolishing them because they can
collapse or cause inconvenience to others.[7] After
the continued protest by NGO’s and the Arabs, the local authorities started resorting
to new ways of demolitions. The authorities issue orders to demolish the
buildings and if the house owner fails to do so, he may be compelled to pay $
25,000 to the municipal contractors. The legal compulsion make the Arabs
demolish their own homes and thereby avoid international attention and legal
hurdles.[8]
Right to shelter and Human Rights
Human rights are the basic rights required
for the dignified life of any human being. The international community has
recognised a set of international norms through the Universal Declaration of
Human Rights (UDHR). Article 17 of
UDHR provides that everyone has the right to own property alone as
well as in association with others. No one shall be arbitrarily deprived of his
property. Article 25 provides that everyone has the right to a standard
of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and 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.
Article 11 of
the International Covenant on Economic, Social and Cultural Rights 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 States Parties are also bound to take appropriate steps to
ensure the realization of this right, recognizing to this effect the essential
importance of international co-operation based on free consent.
Constitution of India
The Constitution of India mandates
the State to protect the rights of all citizens. The fundamental rights are
enumerated in part three and aspirational goals for development are provided in
part four as Directive Principles of State Policy. The fundamental rights are
directly enforceable in the court of law. A close look at Part III and Part IV
of the Indian Constitution reveals that almost all of the rights provided in UDHR
are covered in these two parts.
Article 21
of the Constitution provides for the protection of life and personal liberty all persons. It provides that “no
person shall be deprived of his life or personal liberty except according to
procedure established by law”. Several judicial precedents has confirmed that shelter
for human beings is not mere protection for life or limb; it provides
opportunities to human beings to grow physically, mentally, intellectually, and
spiritually. The right to shelter includes adequate space, safe and decent
structure, decent surroundings, sufficient light, pure air and water,
electricity, sanitation and other civic amenities. The right to life guaranteed
in any civilized society implies the right to food, water, a decent
environment, education, medical care, and shelter.
The Indian government is under an
international legal obligation as well as a constitutional obligation to
guarantee the right to household to individuals. Article 39 calls upon the state
to ensure that both women and men have equal and adequate means of livelihood. Similarly, Article 47 of the Constitution
envisions the state to raise the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties.
Another constitutional
provision relevant to the present discussion is Article 300A. It mandates state to ensure that persons are not
deprived of property save by authority of law. Right to
Property is no longer a fundamental right; rather it is a Constitutional Right.
Therefore, the article protects an individual from interference by the State on
his property unless it is in accordance with the procedure established by law.
Way Forward
Constitutionally guaranteed rights of
citizens and rights guaranteed by international human rights are flouted by the
states to seek narrow political gains. A feasible legal measure to protect the
rights of citizens, especially those belonging to minority or marginalised
communities is to provide for a uniform law to deal with the issue of
demolition of illegal structures. Such a law will be very helpful in avoiding
all the complexities and ambiguity with respect to the issue.[9]
Provisions can be made in the legislation to ensure a standard time period for
giving notice and a common procedure to be followed by all the states before
demolition of any structure which is alleged to be ‘illegal construction’.
Proper definition for the term ‘illegal construction’ would be helpful to ensure
that the states are not misusing this provision.
Conclusion
To solve this existing crisis
intervention from organs of government, i.e., legislature, executive and judiciary
is absolutely necessary. Ruling political parties should understand that right
to shelter is a basic fundamental right and that such a valuable right cannot
be taken away in any arbitrary manner. Analysis of such violations reveals that
the actual problem is not the lack of law but is the unlawful implementation of
it. This can be avoided by making a uniform law to deal with the issue of ‘illegal
structures’. Judicial review is one of the important features of our
constitution and it cannot be taken away without affecting the basic structure
of constitution. So, the higher judiciary is expected to be proactive and to scrutinize
government actions. There should be
participation of elected representatives in urban planning which is not there
right now. Bureaucrats who head offices for urban planning acts in the interest
of the respective state governments without giving any consideration to the
interest of the public at large. Ensuring elected representatives will uphold
the spirit of democracy and would help a much better public scrutiny. The duty
of the media, which is hailed as the fourth estate is also significant in this
respect. They have the duty to ensure that the voice of the marginalised and
the poor reach the higher echelons of power.
[1] Shahana Sheikh & Ben Mandelkern, The Delhi Development Authority Accumulation
without Development (2014)
[2] Usha
Ramanathan, Demolition Drive, 40 Economic
and Political Weekly 2908–2912 (2005),
https://www.jstor.org/stable/4416843 (last visited Nov 22, 2022)
[3] Venkitesh
Ramakrishnan, Targeted demolitions: Uttar Pradesh back to bulldozer tactics
yet again, Frontline, Nov.
21, 2022
[4] Thulasi
K. Raj, Is the judiciary failing to put a check on excesses of the
executive?, Frontline, Nov.
12, 2022
[6] S.P.
Sathe, RIGHT TO SHELTER?: REVIEW OF HOUSING LAW AND POLICY IN MAHARASHTRA,
35 Journal of the Indian Law Institute
13–33 (1993), https://www.jstor.org/stable/43952323 (last visited Nov 22,
2022)
[7] Justus
Reid Weiner, THE NGOs, DEMOLITION OF ILLEGAL BUILDING IN JERUSALEM, AND
INTERNATIONAL LAW, 17 Jerusalem
Center for Public Affairs 47–62 (2005), :
https://www.jstor.org/stable/25834619 (last visited Nov 25, 2022)
[9] George B. Young, UNIFORM STATE LAWS, 8 American Bar
Association Journal 181–183 (1922), https://www.jstor.org/stable/25710821
(last visited Nov 22, 2022)