Justice or Bulldozer Justice
"A father may have a recalcitrant son, but if the house is demolished on this
ground...this is not the way to go about it" Justice Viswanathan of SC in the
judgement of Jamiat Ulama I Hind.[1]
What I saw a few days ago was that an old father was being punished for the wrong committed by his adult son, and not even by the right person. That happening may not be a very usual sighting, or it might have been so usual that no one noticed the severity until the Hon'ble Supreme Court intervened. Nevertheless, this form of punishment had bulldozed the lives of millions living under the 4,46,254 roofs.
This is the trend of demolition of houses, in the name of illegal construction or the construction of houses made without the permission of proper authorities, resorted as a form of punishment, often targeted towards the alleged or accused criminals, communal violence rioters and the members of certain communities, especially the minorities. The phenomenon has been termed "Instant Justice" or "Bulldozer Justice".
It has become a stark reality in various states, especially of Hindi Belts, like Uttar Pradesh, Rajasthan, Madhya Pradesh and many more, where the executive wing has trespassed in the powers of the judiciary by way of demolition of houses as punishment. This radical measure, often exercised without due process established by law and constitution, augments acute questions about the very sanctity of the judiciary and the basic beliefs of democracy.
There have been many instances where the authorities demolished the houses took place just a day after some offence or allegations, like stone pelting or inciting violence. A few notable instances were criticized extensively, such as the case of the demolition of Mohammad Javed's house in Prayagraj, just a day after his arrest on an allegation of inciting violence. It became more concerning when it later surfaced that the demolished house was of his wife. Another instance was recorded in Udaipur, where a person's house was demolished due to a criminal accusation against the son of his tenant.
Bulldozer Justice's ascent is also indicative of a political tactic meant to appeal to the public's desire for a quick response to criminal activity. Many people see these demolitions as an efficient way to provide "instant justice" in a country where the judicial process can be slow and onerous. However, this viewpoint undermines the integrity of the judicial system and contradicts the fundamental rights protected by the Constitution.
One of the crucial doctrines of our constitution related to governance is the Doctrine of Separation of Power. The very underlying presumption of this doctrine is to stop the government from overlapping or interchanging the functions and duties employed by them separately.[1] Montesquieu asserted that justice becomes capricious if the decentralization of power does not take place.[2] However, in the present scenario, justice was not only corroded but also totally defied the rule of law and the principles of justice, that form the foundation of a democratic society.
Article 21 of the Constitution, which guarantees the right to life and personal liberty, also includes the right to a fair trial, which is a basic fundamental right.[3] The Supreme Court, in many instances, has highlighted that demolition should not take place without adhering to an established legal procedure, which consists of issuance of a notice, enabling individuals the opportunity to represent and defend themselves in appropriate courts, however, in several demolitions no prior notice or judicial oversight took place, consequently taking away individuals rights even before they have been lawfully found guilty.[4]
There has been a trend in the Indian federal system towards centralization of authority, especially in the area of national security, i.e., NIA and other preventive detention laws, where the executive has conferred exceptional powers, often with concurrence with the judiciary.[5] Nonetheless, the concurrence of the judiciary has not even been taken into consideration, even if some matters may have been linked with national security.
Executive by resorting to Bulldozer as a punitive measure, competently put itself over the position of Executive as well as of Judiciary, as a result, compromising the judiciary's function as an impartial entity of justice.
Amnesty International in its report recorded a plethora of occurrences where more than 125 houses belonging to individuals of the Muslim community were demolished subsequent to communal violence or any protest between April and June 2022. This practice of bulldozing houses as a form of collective punishment disproportionately affects the marginalized community, worsening the pre-existing inequality[6] and also forming clouds of harassment and repression.
The political context has further complicated the issue, where this form had been schemed as the means of speedy justice against the crime. Nevertheless, the extrajudicial nature and the political motive, for its particular targeting of dissenters and activists of marginalized communities have made it more unsettled than for mere criticism.
This practice has also raised a number of Human Rights questions, involving forced evictions without any means of accommodation or compensation. After closely observing these events, we find that in most cases the alleged individual, for whose action the punishment of Bulldozer has drawn towards his threshold, either has already been arrested or on flee. However, in both cases, there has been a procedure of law and guidelines to deal with it accordingly, and nowhere, is the punishment or even the procedure of Bulldozer justice being outlined.
One of the very fundamental presumptions of criminal justice is innocent until proven guilty. The hasty manner of Bulldozer Justice does not even wait for the person to be proven guilty beyond a reasonable doubt, to punish him, and what is more grievous is to punish and take away the roofs from their heads who are not even guilty, i.e., family members of alleged individuals.
Article 21 outlines every person has the right to live with dignity and meaning, demolishing someone's shed because of his presumption to be guilty curtails this right to a substantial extent for him as well as his family.
The families affected recount the acts of intimidation and violence that occurred throughout the demolition process; it has also been stated that the police used unlawful force to stop the family members to retrieve or salvage their possessions and valuables.[7]
Judicial Intervention and Precedents
This concept of Bulldozing has infringed on individuals' rights and bypassed the judicial procedure. Despite this concept being new, the SC is still pondering upon it for making rules for pan-India. A significant judgment which talked about these issues is Olga Tellis's case[8], which is pivotal in comprehending the legal inference of government acts against the marginalized sections.
In this case, the Bombay Government and the Bombay Municipal Corporation led a campaign to dislodge the slums and pavement dwellers from Bombay, with the motive to drive out and back to their native place. The action was challenged and argued that it violates dwellers' fundamental rights enshrined under Art. 19 and 21 which guarantee them the right to move freely[9] And reside and settle.[10] Throughout the territory of India and the right to life, respectively. Their contention was that their removal would take away their means of livelihood, thus contravening their right to life under Article 21.[11]
The SC held that eviction without giving a chance to the dwellers to be heard would simply defy the due process established by law, and although the state may exterminate encroachments, even so, it must be done in a way that is just and fair in consonance with the principles of natural justice.
In addition, the court criticised the arbitrariness employed during eviction, especially where no prior notice was given, followed by a lack of fair hearing. The court contented that action taken by the government must be rational and not arbitrary ensuring that people have the opportunity to challenge such measures. Further, the court made guidelines for subsequent eviction particularly those pertaining to prior notice and providing alternative accommodation for the displaced.
The precedent of Olga Tellis is pivotal when testing the exercise of Bulldozer Justice. The judgement stresses the need for due process and judicial supervision when state authorities act against people who are alleged to have been alleged of encroachment or any unlawful activities. It emphasized that penal or disciplinary action must uphold the rights guaranteed by the Constitution and affected persons should be heard. However, these guidelines stand redundant when prior notice is served within 24 hours of demolition, without giving any chance to them to be heard or defend themselves.
Way Forward
Although, Bulldozer justice is termed as Instant justice the issues or the impact it creates is long-lasting. These issues call for a multidimensional strategy concerning individuals' constitutional and fundamental rights, adherence to due procedure and the rule of law.
It is crucial to implement stricter compliance for the authorities, followed by procedures of law prior to any demolition. It must be mandated for the authorities to give concerned individuals proper notice with enough time so that they may able to vacate the house properly and find a new shelter, in addition to the principle of natural justice should not be defied and the individuals should be given ample opportunity to present and defend their case before any action takes place. These suggestions must comply with the guidelines of Olga Tellis's case. Sometimes when the matter gets complex and of seminal importance, the judiciary must check and balance the rights, in addition to judiciary must play an active role in supervising the action of bulldozing, coupled with a periodic review of such cases especially involving minorities, confirming compliance with the legal yardsticks.
It is plausible that the SC has proposed to lay down proper guidelines.[12] And requested suggestions for framing these guidelines, which will be applicable on the ‘Pan-India Basis'[13], with a comprehensible and proper guideline can be crucial in circumventing these arbitrary actions.[14] Further, the SC has stayed any action of bulldozing till the next hearing of the case of Jamiat Ulama I Hind, however, the court has made it clear that this order will not affect the demolition of encroachments on public properties.[15]
Now, the issue is in the hands of the Supreme Court, which will decide what should be appropriate guidelines for these types of actions, and whether the individuals' rights get violated in the name of instant justice. Still, it is more than, the glorification of "Bulldozer Justice" as "Instance Justice" only shows the lack of awareness in the general public, and the might of authorities that they can make law and decide it on their own. If our constitution maker had put the principle of separation of power, it would have been done with a greater motive and this motive should not be defied. Appropriate powers have been conferred on each of these three wings of governance, and these wings should not interfere or take those powers into their own hands.
End Notes:
What I saw a few days ago was that an old father was being punished for the wrong committed by his adult son, and not even by the right person. That happening may not be a very usual sighting, or it might have been so usual that no one noticed the severity until the Hon'ble Supreme Court intervened. Nevertheless, this form of punishment had bulldozed the lives of millions living under the 4,46,254 roofs.
This is the trend of demolition of houses, in the name of illegal construction or the construction of houses made without the permission of proper authorities, resorted as a form of punishment, often targeted towards the alleged or accused criminals, communal violence rioters and the members of certain communities, especially the minorities. The phenomenon has been termed "Instant Justice" or "Bulldozer Justice".
It has become a stark reality in various states, especially of Hindi Belts, like Uttar Pradesh, Rajasthan, Madhya Pradesh and many more, where the executive wing has trespassed in the powers of the judiciary by way of demolition of houses as punishment. This radical measure, often exercised without due process established by law and constitution, augments acute questions about the very sanctity of the judiciary and the basic beliefs of democracy.
The Concept of "Bulldozer Justice"
The phenomenon of "Bulldoze Justice" gets its inception and prominence under the governance of UP CM Yogi Adityanath, who has been designated as "Bulldozer Baba" for his ruthless attitude towards alleged criminals. Since 2017, this phenomenon has resorted to razing the properties of individuals accused of severe crimes, consisting of communal violence and organised crimes. This modus operandi has earned the ill fame repute for its extrajudicial character, it has come to represent a larger political agenda that puts immediate retribution over due process.There have been many instances where the authorities demolished the houses took place just a day after some offence or allegations, like stone pelting or inciting violence. A few notable instances were criticized extensively, such as the case of the demolition of Mohammad Javed's house in Prayagraj, just a day after his arrest on an allegation of inciting violence. It became more concerning when it later surfaced that the demolished house was of his wife. Another instance was recorded in Udaipur, where a person's house was demolished due to a criminal accusation against the son of his tenant.
Bulldozer Justice's ascent is also indicative of a political tactic meant to appeal to the public's desire for a quick response to criminal activity. Many people see these demolitions as an efficient way to provide "instant justice" in a country where the judicial process can be slow and onerous. However, this viewpoint undermines the integrity of the judicial system and contradicts the fundamental rights protected by the Constitution.
Sabotaging Judiciary's Role
What is the fundamental role of the judiciary? in our country is to ensure justice and uphold the law. However, the same has been defied by Bulldozer Justice. The executive wing has taken the matter into its own hands and is seizing the power of the Judiciary and making individuals disable from the right to a fair trial.One of the crucial doctrines of our constitution related to governance is the Doctrine of Separation of Power. The very underlying presumption of this doctrine is to stop the government from overlapping or interchanging the functions and duties employed by them separately.[1] Montesquieu asserted that justice becomes capricious if the decentralization of power does not take place.[2] However, in the present scenario, justice was not only corroded but also totally defied the rule of law and the principles of justice, that form the foundation of a democratic society.
Article 21 of the Constitution, which guarantees the right to life and personal liberty, also includes the right to a fair trial, which is a basic fundamental right.[3] The Supreme Court, in many instances, has highlighted that demolition should not take place without adhering to an established legal procedure, which consists of issuance of a notice, enabling individuals the opportunity to represent and defend themselves in appropriate courts, however, in several demolitions no prior notice or judicial oversight took place, consequently taking away individuals rights even before they have been lawfully found guilty.[4]
There has been a trend in the Indian federal system towards centralization of authority, especially in the area of national security, i.e., NIA and other preventive detention laws, where the executive has conferred exceptional powers, often with concurrence with the judiciary.[5] Nonetheless, the concurrence of the judiciary has not even been taken into consideration, even if some matters may have been linked with national security.
Executive by resorting to Bulldozer as a punitive measure, competently put itself over the position of Executive as well as of Judiciary, as a result, compromising the judiciary's function as an impartial entity of justice.
Selective Targeting and Prejudice
During the initial days of Bulldozer Justice, it was resorted to punishing alleged or habitual criminals, irrespective of their religious or communal background. Although the modus operandi of the punishment has remained the same, it saw a sheer shift from not taking the religious or communal background as a factor to targeting and punishing alleged individuals of a particular religion or community. The minorities have borne the brunt, especially Muslims. There have been many instances observed where the house of a Muslim individual alleged in communal violence was bulldozed and at the same setting, a Hindu house remained intact.Amnesty International in its report recorded a plethora of occurrences where more than 125 houses belonging to individuals of the Muslim community were demolished subsequent to communal violence or any protest between April and June 2022. This practice of bulldozing houses as a form of collective punishment disproportionately affects the marginalized community, worsening the pre-existing inequality[6] and also forming clouds of harassment and repression.
The political context has further complicated the issue, where this form had been schemed as the means of speedy justice against the crime. Nevertheless, the extrajudicial nature and the political motive, for its particular targeting of dissenters and activists of marginalized communities have made it more unsettled than for mere criticism.
This practice has also raised a number of Human Rights questions, involving forced evictions without any means of accommodation or compensation. After closely observing these events, we find that in most cases the alleged individual, for whose action the punishment of Bulldozer has drawn towards his threshold, either has already been arrested or on flee. However, in both cases, there has been a procedure of law and guidelines to deal with it accordingly, and nowhere, is the punishment or even the procedure of Bulldozer justice being outlined.
One of the very fundamental presumptions of criminal justice is innocent until proven guilty. The hasty manner of Bulldozer Justice does not even wait for the person to be proven guilty beyond a reasonable doubt, to punish him, and what is more grievous is to punish and take away the roofs from their heads who are not even guilty, i.e., family members of alleged individuals.
Article 21 outlines every person has the right to live with dignity and meaning, demolishing someone's shed because of his presumption to be guilty curtails this right to a substantial extent for him as well as his family.
The families affected recount the acts of intimidation and violence that occurred throughout the demolition process; it has also been stated that the police used unlawful force to stop the family members to retrieve or salvage their possessions and valuables.[7]
Judicial Intervention and Precedents
This concept of Bulldozing has infringed on individuals' rights and bypassed the judicial procedure. Despite this concept being new, the SC is still pondering upon it for making rules for pan-India. A significant judgment which talked about these issues is Olga Tellis's case[8], which is pivotal in comprehending the legal inference of government acts against the marginalized sections.
In this case, the Bombay Government and the Bombay Municipal Corporation led a campaign to dislodge the slums and pavement dwellers from Bombay, with the motive to drive out and back to their native place. The action was challenged and argued that it violates dwellers' fundamental rights enshrined under Art. 19 and 21 which guarantee them the right to move freely[9] And reside and settle.[10] Throughout the territory of India and the right to life, respectively. Their contention was that their removal would take away their means of livelihood, thus contravening their right to life under Article 21.[11]
The SC held that eviction without giving a chance to the dwellers to be heard would simply defy the due process established by law, and although the state may exterminate encroachments, even so, it must be done in a way that is just and fair in consonance with the principles of natural justice.
In addition, the court criticised the arbitrariness employed during eviction, especially where no prior notice was given, followed by a lack of fair hearing. The court contented that action taken by the government must be rational and not arbitrary ensuring that people have the opportunity to challenge such measures. Further, the court made guidelines for subsequent eviction particularly those pertaining to prior notice and providing alternative accommodation for the displaced.
The precedent of Olga Tellis is pivotal when testing the exercise of Bulldozer Justice. The judgement stresses the need for due process and judicial supervision when state authorities act against people who are alleged to have been alleged of encroachment or any unlawful activities. It emphasized that penal or disciplinary action must uphold the rights guaranteed by the Constitution and affected persons should be heard. However, these guidelines stand redundant when prior notice is served within 24 hours of demolition, without giving any chance to them to be heard or defend themselves.
Way Forward
Although, Bulldozer justice is termed as Instant justice the issues or the impact it creates is long-lasting. These issues call for a multidimensional strategy concerning individuals' constitutional and fundamental rights, adherence to due procedure and the rule of law.
It is crucial to implement stricter compliance for the authorities, followed by procedures of law prior to any demolition. It must be mandated for the authorities to give concerned individuals proper notice with enough time so that they may able to vacate the house properly and find a new shelter, in addition to the principle of natural justice should not be defied and the individuals should be given ample opportunity to present and defend their case before any action takes place. These suggestions must comply with the guidelines of Olga Tellis's case. Sometimes when the matter gets complex and of seminal importance, the judiciary must check and balance the rights, in addition to judiciary must play an active role in supervising the action of bulldozing, coupled with a periodic review of such cases especially involving minorities, confirming compliance with the legal yardsticks.
It is plausible that the SC has proposed to lay down proper guidelines.[12] And requested suggestions for framing these guidelines, which will be applicable on the ‘Pan-India Basis'[13], with a comprehensible and proper guideline can be crucial in circumventing these arbitrary actions.[14] Further, the SC has stayed any action of bulldozing till the next hearing of the case of Jamiat Ulama I Hind, however, the court has made it clear that this order will not affect the demolition of encroachments on public properties.[15]
Now, the issue is in the hands of the Supreme Court, which will decide what should be appropriate guidelines for these types of actions, and whether the individuals' rights get violated in the name of instant justice. Still, it is more than, the glorification of "Bulldozer Justice" as "Instance Justice" only shows the lack of awareness in the general public, and the might of authorities that they can make law and decide it on their own. If our constitution maker had put the principle of separation of power, it would have been done with a greater motive and this motive should not be defied. Appropriate powers have been conferred on each of these three wings of governance, and these wings should not interfere or take those powers into their own hands.
End Notes:
- Devanshi Sharma, Separation of Powers in India, SSRN Journal (2023), https://www.ssrn.com/abstract=4380967 (last visited Sep 20, 2024).
- Montesquieu and the Separation of Powers | Online Library of Liberty, https://oll.libertyfund.org/pages/montesquieu-and-the-separation-of-powers (last visited Sep 20, 2024).
- Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230
- Why Supreme Court stay on ‘bulldozer justice' by states is a crucial intervention, India Today (2024), https://www.indiatoday.in/india-today-insight/story/why-supreme-court-stay-on-bulldozer-justice-by-states-is-a-crucial-intervention-2602073-2024-09-18 (last visited Sep 20, 2024).
- U. Singh. Federalism, democracy and the national security state in India. Territory, Politics, Governance, 10 (2021): 51 - 66. https://doi.org/10.1080/21622671.2021.1899975 (last visited Sep 20, 2024).
- Indian states demolish Muslim homes as punishment, says Amnesty report | The Independent, https://www.independent.co.uk/asia/india/india-muslim-houses-demolition-jcb-amnesty-report-b2492073.html (last visited Sep 20, 2024).
- Id.
- Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545
- Indian Consti, art. 19(1)(d)
- Indian Consti, art. 19(1)(e)
- Olga Tellis Case 1985, Drishti IAS, https://www.drishtiias.com/daily-news-analysis/olga-tellis-case-1985 (last visited Sep 21, 2024).
- Jamiat Ulama I Hind v. North Delhi Municipal Corpn., 2024 SCC OnLine SC 2400, 5.
- Ibid, 6
- Pragya Singh & Lakshita Handa, Putting the Brakes on ‘Bulldozer Justice,' The Hindu, Sep. 12, 2024, https://www.thehindu.com/opinion/lead/putting-the-brakes-on-bulldozer-justice/article68635215.ece (last visited Sep 22, 2024).
- Debby Jain, Should Demolitions Be Glorified In Our Country? Supreme Court Objects To Minister's Comment "Bulldozer Use Will Continue," (2024), Live Law, https://www.livelaw.in/top-stories/should-demolitions-be-glorified-in-our-country-supreme-court-objects-to-ministers-comment-bulldozer-use-will-continue-269811 (last visited Sep 22, 2024).
- Jamiat Ulama I Hind v. North Delhi Municipal Corpn., 2024 SCC OnLine SC 2400.
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