Demolitions as state-sanctioned collective punishment
The demolition of homes as a form of frontier justice (as a response to political violence) has become a standard feature of administration.
The public and official justification is that the demolitions are carried out in order to remove “illegal structures” or “encroachments”.
Municipal laws that authorise the removal of unauthorised structures are invoked as the legal cover for such action.
This is the justification the state sticks to when it is challenged in court.
Court’s observation on this
Over the years, the courts have recognised that “unauthorised structures” are often the dwelling places of economically marginalised and vulnerable people, who have been failed by the state in its obligation to provide shelter to all its citizens.
Court suggested to enforce basic procedural requirements — such as adequate notice.
Courts have also insisted that before demolitions are carried out, the administration must conduct a survey to check whether the residents are eligible for rehabilitation schemes.
If eligible for rehabilitation schemes, complete their rehabilitation (through a process of meaningful engagement) before any demolitions are done.
Rehabilitation, in turn, does not simply mean picking up people from one part of the town and dumping them in another, but ensuring that there is no substantial disruption to their (already) precarious lives.
The basic purpose is to ensure that the state does not simply make its own citizens homeless, and with no recourse.
Concerns
Instant demolitions that we see do not comply with these procedural or substantive requirements.
Last year, it was found that notice in a demolition case was actually back-dated by the administration to give an appearance of complying.
In the Nuh demolitions, there have been widespread allegations that the notice and the demolitions were carried out on the same day.
State-sanctioned collective punishment, which is predominantly targeted against specific communities.
It is a form of collective punishment, where punishment is meted out before guilt is proven.
Along with the supposedly guilty individual, their innocent family members are also punished.
It falls to the courts to enforce the rule of law and the Constitution. Unfortunately, for more than a year, the courts have been silent.
Even the Supreme Court of India has, when faced with this situation, purported to accept the state’s justification of going after “unauthorised structures.”
Is this a violation of rule of law?
Rule of Law : It states that ‘the Law is supreme and no human being has authority over it’.
In India, the Rule of Law is guaranteed by the Constitution (Article 14), which means that all authorities must strictly adhere to it.
Where demolitions are used as state-sanctioned collective punishment – Instead of engaging the machinery of law enforcement and justice — which is what states bound by the rule of law do — the state prefers to mete out a form of frontier justice, enforcing order through violence, and itself becoming the law-breaker.
Punishment without guilt — punishment at the discretion of the state — violates the rule of law.
The rule of law is all that stands between a marauding state and the basic safety of individuals.
Abandoning the rule of law for frontier justice is the first step towards an authoritarian society where one’s safety, physical possessions, and even life and liberty, will be at the whims and fancies of state officials.
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