Demolition drive menace in view of national and international law.

The demolition drive menace has been a serious bone of contention for the last few years. Numbers of cultures and countries also use demolition drives to quell dissent and as a form of punishment.

           Demolition drives actually originated as a military tactic and were primarily used in a number of conflicts to deliberately target and inflict destruction upon houses during a military advance. The earliest recorded act of house demolition took place back in 1069-1070 when William the Conqueror (the first Norman King of England) and the Norman Troops demolished property in the rebellious north of England to deprive an enemy of civilian support.

 Why in the news?

The nation has been witnessing a frenzy of demolition drives for the past few years. Article 300A of the Indian Constitution categorically states “No person shall be deprived of his property save by the authority of law”.

Recently a building has been demolished in Kathua, which prompted me to this write this article, by the administration colluded with the CEO of the municipal Council, Kathua without giving prior notice to the parties violating the principle of 'Audi Alteram Partem'  a principle of natural justice. When the ruling dispensation in UP was demolishing the buildings of protesters, dissenters, etc. We wrapped that moral nakedness in the Indian flag but no flag is enough to cover that despotic fascist behavior. And when it comes to us, we show profound sadness against the demolition drive. It reminds me of the words (altered for the Indian context) of Martin Neomoller:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for females, and I did not speak out—because I was not a female.

Then they came for the minorities, and I did not speak out—because I was not in a minority.

Then they came for Dalits, and I did not speak

out— because I was not Dalit.

Then they came for me—and there was no one left to speak for me.”

 Demolitions in light of national and international laws.

The demolition of any structure, whether permanent or temporary, leads to deprivation of the livelihood and shelter of an individual and their dependents, which are the essential attributes of the right to life under Article 21 of the Constitution, as has been held by the Supreme Court in its landmark judgment in the case of Olga Tellis vs. Bombay Municipal Corp. (1985).

Article 21 states that no person shall be deprived of life and personal liberty except according to procedure established by law. It is well settled since the landmark judgment of the Supreme Court in Maneka Gandhi vs. Union of India (1978), that such a procedure has to be just, fair, and reasonable.

In the State of Punjab vs. Salil Sabhlok (2013), the Supreme Court held that in the exercise of all constitutional or statutory powers, there is an implied requirement that every exercise of power/direction must be fair, reasonable, and just, and must also be guided by public interest. Fairness is the basic principle of good administration, and there is a duty to act fairly in all administrative actions, which means to act justly and fairly, and not arbitrarily or capriciously. It is not only enough to issue a notice, but it must also be adequate, that is, sufficient time should be given to comply with the requirement of notice.

Other Important Judgements:

The Supreme Court in cases like Bachan Singh vs. State of Punjab (1980), Vishaka vs. State of Rajasthan (1997), and recently in the famous Puttaswamy vs. Union of India (2017) has laid down the principle that the fundamental rights guaranteed under the Constitution must be read and interpreted in a manner which would enhance their conformity with international human rights law.

ICESCR:

Article 11.1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “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”.

Furthermore, under Article 11.1, countries are under an obligation to take “appropriate steps” to ensure the realization of these rights such as the right to adequate housing.

The rights recognized under ICESCR can be restricted by States only if the limitations are determined by law in a manner compatible with the nature of these rights and solely to promote society’s general welfare.

However, any limitation imposed on the rights given in the Covenant such as the right to adequate housing cannot lead to the destruction of these rights.

The ICESCR specifically recognizes this in Article 5.

International Human Rights Law Framework:

It is also a well-documented right under the international human rights law framework, which is binding on India.

For instance, Article 25 of the Universal Declaration of Human Rights (UDHR) states 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”.

Besides, international law also prohibits arbitrary interference in an individual’s right to property.

For instance, Article 12 of the UDHR states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation”.

Article 12 also stipulates that “everyone has the right to the protection of the law against such interference or attacks”.

ICCPR:

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) also provides that everyone has the right to own property alone as well as in association with others and that no one shall be arbitrarily deprived of his property.

Thus, arbitrary interference with an individual’s property is a gross violation of the ICCPR.

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.”

As the custodian of India’s constitutional order, it is high time that the judiciary acted and imposed necessary checks on the unbridled exercise of power by the executive. The Courts should use international law to counter the nationalist-populist discourse.

Any justification for a demolition drive, as a penal consequence to a criminal act, is totally against established canons of criminal justice.

The conduct of demolition drives, as a retaliatory measure, even with the avowed object to curb violence is a clear act of subversion of the principle of the rule of law.

By: Dheeraj Bharat