Recently communal clashes broke out in a few of the states during processions to celebrate Ram Navami, with two persons killed, one at Lohardaga in Jharkhand and one at Khambat in Gujarat. It has been alleged that the authorities riding bulldozers have razed buildings or house extensions built "illegally" in neighbourhoods that recorded communal clashes recently in Delhi, Madhya Pradesh and Gujarat.
- Critics have called these demolition drives a move to "bulldoze" a particular community. But officials defended their actions as "routine exercises" against illegal constructions. We take a look at what happened across the country and how institutional mechanism has failed to deliver justice.
- From Kolkata in the east to Gujarat in the west and from Delhi in the north to Andhra Pradesh in the south, violence and mayhem have broken out in the last two weeks.
- In the past two weeks, Ram Navami and Hanuman Jayanti processions have descended into violence and chaos across states in the country and are currently on edge.
- The festivals of Hanuman Jayanti and Ram Navami have been marred by sectarian violence, sparking concern that the country is becoming more polarised than ever along Hindu-Muslim lines.
- UP government had brought an ordinance to issue recovery notices to those accused of damaging public properties during riots and protests.
The Supreme Court has questioned the procedure followed and has taken a serious view of the matter and has ordered to halt the drive and maintain the status quo.
Uttar Pradesh and Karnataka, Haryana have laws in place for the recovery of damages to the property during a disturbance. From the administrative point of view, it may appear to be reasonable but it also endangers the fundamental rights of citizens.
Primarily our discussion shall be focused on the principles of natural justice in the light of administrative law, incorporating the basic principle of fairness, and the right to be heard.
Principle of Natural Justice:
- It involves a procedural requirement of fairness. It is also known as substantial justice or fundamental justice Universal justice or fair play in action. Principles of Natural Justice derived from the expression “Jus Natural” of the Roman Law, do not have a force of law as they may or may not form part of statute but they are necessary to be followed.
- The principles of natural justice are not embodied rules and are not codified. They are judge-made rules and are regarded as the counterpart of the American procedural due process.
- The principles of natural justice should be free from bias and parties should be given a fair opportunity to be heard and all the reasons and decisions taken by the court should be informed by the court to the respective parties.
Basis of the application of the principle of natural justice:
- The principles of natural justice, are based on two Latin maxims, (which were drawn from jus natural).
Three principles of natural justice have been recognized:
- Nemo Judex in causa sua or Nemo debet esse judex in propria causa or Rule against bias (No man shall be a judge in his own cause). This principle is more popularly known as the Doctrine of Bias.
|When it is said that hear the other side, it means that hearing should not be confined to only auditory hearing. It should be an effective hearing. It is absolutely essential to hear both sides before you make up your mind.
- Audi Alteram partem or the rule of fair hearing (hear the other side).
- Speaking orders or reasoned decisions.
- The first two have come to us from the Roman Law and the third one is a recent Innovation due to the rapid development of the constitutional as well as administrative law. The above rules make it clear that the judiciary must be free from bias and should deliver pure and impartial justice. Judges must act judicially and decide the case without considering anything other than the principles of evidence.
|Despite the recent knee jerk reaction of the government India still retains the basic principle of justice in its laws and is supposed to still follow the rule of law. Mobs and criminals don't care for natural justice or the rule of law, but the State is still bound by them and can be held accountable in the courts if it acts without following the law.
- In a few of the recent developments the local police have tried to argue that they demolished properties which were illegal encroachments, but the political stance is taken up by the government and local authorities suggests that the demolitions were a response to rioters and stone-pelters.
Essentials of fair hearing:
To constitute a fair hearing, the following ingredients are to be satisfied.
- Notice: There is a duty on the part of the deciding authority to give notice to a person before taking any action against him. The notice must be reasonable and must contain the time, place, nature of hearing and other particulars.
- Hearing: Fair hearing in its full sense means that a person against whom an order to his prejudice is passed should be informed of the charges against him, be allowed to submit his explanation thereto, have a right to know the evidence both oral and documentary.
Justifying the Demolitions:
- Neither the Parliament nor any State Legislative Assemblies, allow the demolition of property of those accused of being involved in riots and damage to public/private property.
- Scope of Criminal Law:
- Punitive action against an accused person can only take place after conviction in a court of law, which is of course the way in which the right to be heard finds its place in criminal law.
- The person has to be informed of the charges against them, a court has to take cognisance of the charges, the prosecution has to provide evidence to prove its case, and the accused gets to present their own evidence and claim any defences valid under the law. The court has to weigh everything and see if the person's guilt has been proved beyond all reasonable doubt.
|Even if the accused are convicted, Indian criminal law only prescribes punishment in the form of imprisonment and/or fines, not demolition of their property. Any sort of “retributive action” which also runs the risk of being “collective punishment” is absolutely “not allowed” under Indian criminal law.
- In any case, even if certain people are ordered to pay compensation under the rule of law and their properties are attached to ensure payment is made, there is no provision in the law for the demolition of properties.
- It is unfortunate that the iteration of law has been cited by the government authorities in the recent happenings when bulldozing the houses of those accused of being rioters, still, the demolition of the properties is not justified.
Law on Illegal Encroachments:
- The only circumstance in which the demolition of a person's private property can be done is if there is any illegal construction, for instance by encroaching on another person's land, or if the structure fails to comply with regulations.
- In Madhya Pradesh where Khargone saw “illegal encroachments” being bulldozed in the wake of the Ram Navami clashes, the Rule 12 of the Madhya Pradesh Bhumi Vikas Rules 1984 specifies that notice needs to be sent to any person whose property violates rules. The recipient of the notice must also be given 10 days to either leave or make the building comply with the rules. Notably, while officials in the Khargone district administration said that those whose houses and businesses were razed were given prior notices, reports have claimed that this was not the case.
- Similarly, Section 343 of the Delhi Municipal Corporation Act 1957 also provides for a notice to be served ahead of demolishing any building that has been constructed illegally, without sanction, or in violation of building bylaws. The commissioner, according to this section, can order the owner or occupant to demolish the building within five to 15 days. Failing this, the commissioner may himself order the demolition of the structure.
Legality in demolishing properties of those accused in riots:
- There is no law that allows for the demolition of the property of those who stand accused of rioting or damaging public or private property.
- In a 2009 judgement the Supreme Court judgment had noted that since there was no law to recover damages for losses caused by violence, the high courts can take cognisance of such incidents of mass damage to public property on their own and set up a machinery to investigate and award compensation.
- Resorting to the destruction of the properties of alleged wrongdoers by means of bulldozing is clearly against our constitutional ethos and the criminal justice system, as also in violation of the rights of accused persons.
Law violates freedom of expression:
- Impartial implementation of laws not only violates the fundamental rights enshrined in Article 19 of the Constitution of freedom of expression, but it also reflects the mentally of the executives by leaving the scope for different interpretations.
- Be it the altercation between Hindus and Muslims as a Hanuman Jayanti procession in Northwest Delhi’s Jahangirpuri or the clashes in Khargone city when a Ram Navami procession crossed the sensitive Talab Chowk area near Jama Masjid. The violence wasn’t restricted to the streets, as the prestigious Jawaharlal Nehru University also witnessed protests and beatings on Ram Navami. One common thing that finds a place in both the issues is the manner in which the justice has been delivered and it is worrying.
Violation of the Right to Property:
- The freedom to acquire, hold and dispose of private property was originally a fundamental right under the Constitution in Article 19(1)(f). In 1978, in line with the socialist ideals prevalent at the time, this fundamental right was repealed by a constitutional amendment.
- Article 31 of the Constitution not only guarantees the right of private ownership but also the right to enjoy and dispose of property free from restrictions other than reasonable restrictions. The article states that no person shall be deprived of his/her property, except by authority of law. However, this does not mean that a person's private property can just be destroyed or taken away at the whims of the government.
- Article 300A, which was added to the Constitution after the repeal of Article 19(1)(f), says: "No person shall be deprived of his property save by authority of law."
|This means that any action which takes away a person's property has to be in accordance with an Act or Rules or other statutory instrument passed by the central or state government, including the procedure established by such law. This supports the basic concept of the right to be heard and makes sure that a person does not suffer a loss of their property without being given a chance to defend themselves.
Any country which doesn't want to be a dictatorship or a feudal monarchy has to follow the laid principles of natural justice. These principles find their mention in the “Magna Carta” which argues in favour of the trinity of “hear, interrogate and adjudicate.”
The contentious practise of using bulldozers to pull down residential and commercial properties of persons “suspected” goes against the spirit of impartial justice and results in irreparable harm to the residents of the area. The consequence of rampant bulldozing without proper hearing will be faced by common people of another community. These actions are short-lived but the scar has a lasting impact and raises questions about the justice delivery mechanism in the country. It is important that the court should send a message indicating that the rule of law firmly prevails in India.