Why isn’t India’s judiciary acting to stop the spate of illegal demolitions across the country?

On Sunday, as activist Javed Mohammed’s home was demolished by the Prayagraj Development Authority, many lawyers and commentators expressed shock. Mohammed is the key accused in organising protests in the city against controversial statements by senior Bharatiya Janta Party leaders about Prophet Muhammad. (The leaders have since been suspended or expelled.)

Mohammed had not been convicted of any crime and Indian criminal law does not permit homes of people accused of crimes to be punitively razed. But in a pattern witnessed in several BJP-ruled states in recent months, municipal violations were cited to swiftly tear down the home of a Muslim person who had been accused of being involved in protests or rioting. Officials claimed that the demolition was completely coincidental and that due process had been followed.

Many observers questioned the silence of the branch of the government tasked with protecting the rights of citizens: the judiciary.

Many observers have why asked the courts, despite several cases pending before them, have done nothing to stop these demolitions even though the political rhetoric makes it clear that they are being used punitively and especially against Muslims.

Not only are these actions illegal, fundamental rights, such as right to shelter, as well as natural justice are at stake, legal experts point out.

The judicial disappointment

On Tuesday, 12 legal personalities, including former Supreme Court and High Court judges and senior advocates, sent a letter to Chief Justice NV Ramana urging the Supreme Court to take cognisance of the recent events in Uttar Pradesh.

“The mettle of the judiciary is tested in such crucial times,” the letter read. It reminded the court of its duty as the “custodian of the Constitution” and drew attention to how the court has taken cognisance, by its own accord, of important matters like the migrant crisis during the Covid-19 lockdown and the Pegasus case.

“We hope and trust the Supreme Court will rise to the occasion and not let the citizens and the Constitution down at this critical juncture,” it concluded.

Several lawyers also sent a letter to the chief justice of the Allahabad High Court asking him to take cognisance of the “illegal demolition” and reconstruct Mohammed’s home.

Many legal experts expressed regret at the lack of judicial intervention on the matter. “I think the court should hear it on an urgent basis and pass appropriate orders,” said former Supreme Court Justice Madan Lokur. “No court should permit residential houses being demolished without good reason.”

Legal scholar Anuj Bhuwania said that these demolitions are like extra-judicial killings: “a quick solution to punish those accused, without any due process and without consideration for their rights.”

He added: “A strong move by courts, like ordering criminal prosecution for officials responsible would go a long way in stopping this.”

There was also a space of criticism on social media from lawyers and experts about the lack of judicial action.

The cases before the judiciary

Over the past few months, demolitions of this sort have been carried out in Uttar Pradesh, Madhya Pradesh and Gujarat. After riots or violent protests, people suspected of being involved in the incidents have had their homes and shops being demolished. Even as the political rhetoric around the demolitions makes it clear that this was punishment for protesting, the technical justification given by the authorities was that the constructions were illegal and that appropriate notice had been served.

However, many whose properties have been demolished say that no notices were given to them. Almost all of the properties demolished in this manner have belonged to Muslims.

This pattern was seen most recently in the demolition of three homes in Uttar Pradesh, including Mohammed’s home. In April, this played out after communal unrest in Khargone in Madhya Pradesh, Jahangirpuri in New Delhi and Khambat in Gujarat.

The Uttar Pradesh government had previously claimed to have seized and demolished properties worth Rs 980 crores between January 2020 and March 2021 from alleged gangsters.

Several lawyers, including former judges, have pointed out that these demolitions are illegal. Penalising an accused before trial by demolishing their home has no basis in Indian law. Besides, these demolitions also violate India’s international law obligations, which prohibit any arbitrary interference with a person’s right to property.

In many cases, the technical justification offered by the state – that these homes were constructed illegally – does not hold up. Municipal laws require adequate notice to be served and hearings to be held before demolitions. These steps have not been followed in these demolitions.

Further, demolishing a home is often a most drastic step for even illegal constructions. There are other options, such as asking for a fine to be paid, in case of some kinds of violations.

In many recent instances, the properties do not even belong to the person accused of participating in the protests.

Currently, there are petitions in the Madhya Pradesh High Court, the Uttar Pradesh High Court and the Supreme Court challenging these demolitions. However, apart from notices being issued to the authorities and stay orders in some cases, nothing substantive has resulted.

On Thursday, for instance, in response to a petition by the Islamic organisation Jamiat Ulama-i-Hind urging that the Uttar Pradesh government be instructed to ensure that no illegal demolitions take place in the state, the Supreme Court on Thursday orally observed that civic authorities should strictly follow legal procedures while demolishing structures it claimed were illegal.

But the court did not instruct the government to halt such actions.

Even when a court has ordered a stay, authorities have managed to dodge it. When demolitions were carried out in Jangirpuri in April, the Supreme Court had stopped them. But the demolitions continued for about an hour despite the court order, which was widely reported by the media, because officials claimed that they had not received the directions.

Lawyers had also warned the Supreme Court about the possibility of demolitions being conducted in the future. For instance, in April, senior advocate Kapil Sibal, one of the lawyers appearing for Jamiat Ulama-i-Hind, had expressed concern about punitive demolitions being conducted in other states at a later day. However, Justice L Nageswara Rao, who was presiding over the bench, had said: “Once we have passed orders in one case you still think something will happen?”

The ask from the court

Legal experts have various suggestions about the best strategy to adopt to get the courts to stop such demolitions.

Former Supreme Court judge Madan Lokur told Scroll.in that the courts have three options. Each is challenging. First is to “entertain a petition by an aggrieved person”, he said. “However, since the authorities give no time to the aggrieved person to go to court, this has become a paper possibility.”

The second is that citizens or groups can petition the judiciary. “One such group has approached the Supreme Court,” he said, “but realistically speaking, how many are willing to stick their neck out?”

The third option, he said, was for the court to take suo motu action, something that many others have asked for. “For this we need a proactive judiciary,” he said. “Unfortunately, our judiciary is not proactive and frankly, it is unlikely if any court will take suo motu action on the demolitions.”

Noting some of these problems, legal commentator Gautam Bhatia has written that assuming the Supreme Court has the “will and the desire” to address these demolitions, it might have to craft a new doctrine – perhaps a doctrine of “unconstitutional state of affairs”. This would require the courts to consider the structural violation of fundamental rights and pass orders that relate to unconstitutional acts “at large” instead of limiting itself to to single cases.

Even if the chances of remedy from the court seem bleak, citizens may still want to approach the court simply in order to create a record. “If there is a theft in your house, you will file an FIR [first information report] with the police even if you don’t have too much hope,” explained legal scholar Anuj Bhuwania.

As Bhuwania noted, the people whose homes have been demolished need to approach the court, if they can, to ask for compensation. “Adjudicating at an individual level and making people pay for it, through compensation and prosecution of officials involved is the only legal way to put an end to this,” he said.

He added that it was “important to fight this in an adversarial manner” at an individual level and not approach it by way of a public interest litigation, which has often resulted in the court merely forming guidelines.

“The court may of course choose to keep the case in cold storage, but that will only deepen its legitimation crisis,” Bhuwania said.