Dr. Swati Jindal Garg
Taking action on the basis of a video wherein a 24-year-old man Pankaj Tripathi was seen thrashing his 19-year-old girlfriend after she asked him to marry her, CM Shivraj Singh Chouhan-led government ordered the demolition of his illegal house by a bulldozer. As per officials, a preliminary probe revealed that the man in the video is a resident of Dhera village in the Mauganj area and the incident took place in Madhya Pradesh’s Rewa district.
The Madhya Pradesh CM has immediately taken to twitter to announce that the accused who is a driver by profession has been arrested and further his driving license has too been cancelled. The town inspector has also been suspended for allegedly trying to get the matter settled and the accused’s house which had allegedly been illegally constructed has been demolished.
The CM also announced on twitter that- “No one who commits atrocities on women in the land of Madhya Pradesh will be spared.”The CMO stated that Chief Minister Shivraj Singh Chouhan directed that anyone who commits any crime against women will face immediate and strict legal action. “Any criminal who cannot respect women has no right to live in a civilised society,” said CMO in another tweet.
According to the police, accused Pankaj is a resident of Dhera village in the Mauganj area. In the video, the accused is seen repeatedly kicking and slapping the woman with whom he is allegedly in a relationship. The accused was previously detained under IPC section 151 (disturbing public peace) and later released. After the video went viral on social media, a case was filed under Indian Penal Code section 323 (voluntarily causing hurt) and other relevant provisions.
The victim has also filed a complaint against the person who shot and distributed the video, and a case has been filed under the Information Technology (IT) Act, according to the police.
A larger question that now arises is however if the authorities were acting within the law by demolishing the house of the accused. An eye for an eye is an age old maxim that has been variously understood as requiring equivalent, even duplicate, punishment or as setting a limit on punishment, and has even been labeled primitive. In the biblical world it primarily represents the notion that the crime and the punishment should be commensurable and establishes a basis for negotiation. In the case of false witnessing, the biblical and ancient Near Eastern legal tradition emphasizes that a lying witness should receive the punishment that would have been determined for the accused. The recent increase in the number of demolitions witnessed on the pretext of them being constructed illegally merely goes to show that a new trend is emerging wherein the authorities are taking up the role of being the judge, jury and the hangman and are allegedly demolishing the houses of accused persons in order to ‘teach them a lesson’ for the crimes committed by them.
There have also been various other instances apart from the one cited above, where authorities have rushed to demolish the house of an accused person without following the due process of law in their hurry to administer justice. The Gawhati High Court has also in a recent case stressed that bulldozing of a house is not provided under any criminal law, even if an agency is investigating a very serious matter. Chief Justice RM Chhaya of the Gauhati High Court made this observation while hearing a suo motu case taken up by the high court regarding the demolition of the house of an accused in an arson case in Nagaon district of Assam following a series of events wherein the Batadrava Police Station was set on fire on May 21 by a mob due tothe alleged custodial death of a local fish trader, Safikul Islam (39), who was picked up by police the night before. A day later, the district authorities had demolished at least six houses, including Islam’s, using a bulldozer purportedly in search of weapons and drugs hidden beneath the structures. Coming down heavely on such conduct displayed by the authorities, Justice Chhaya observed-
“Even if a very serious matter is being investigated by an agency, bulldozing of a house is not provided under any criminal law.” Emphasising that it requires permission to even search a house, he said, “Tomorrow if you need something, you will dig up my courtroom.” The chief justice said that nobody will be safe if pulling down anyone’s house is permitted in the name of an investigation. “We are in a democratic set-up,” he further stressed and also raised apprehension that the one 0.9 mm pistol that was recovered by demolishing the house, as submitted in the government affidavit, Chief Justice Chayya could have been planted. Going a step ahead, the Chief Justice maintained that incidents of such bulldozing of houses are done in movies, and even in those, the search warrant is shown before the act. He also equated the bulldozing of the houses to an act in a ‘gang war’ and asked the Home department to find better ways of carrying out their investigation.
In another matter of a similar nature, JAMIAT Ulama-I-Hind, a leading organization of Islamic scholars belonging to the Deobandi school of thought in India, has petitioned the Supreme Court under Article 32 of the Constitution seeking relief against the demolition of commercial and residential buildings as punitive measures against those accused of being involved in riots. The petition that was filed against the demolition of homes belonging to Muslims in Khargone, Madhya Pradesh and Khambat, Gujarat after riots broke out there between the Hindu and Mulsim communities during the Ram Navami procession claims that such an act goes against the right of an accused to have a fair trial and is against the due process of law. The petition also avers that governments’ support for such a measure as punishment undermines the criminal justice system, including the role of the courts and seeks directions for ministers, legislators and anybody unconnected with the criminal investigation to be restrained from apportioning criminal responsibility regarding criminal action publicly or through any official communication until a determination by a criminal court.
Contending that at least one of the demolished property was built under the Central Government’s initiative called “Pradhan Mantri Awas Yojana” to provide affordable housing to the economically weaker sections of the society, the petition states that the justification being given in such incidents of the properties being built illegally is totally false.
The Supreme Court on the other hand has told the Uttar Pradesh Government that demolitions can happen only in accordance with the provisions of the law and cannot be retaliatory. “Ultimately, the rule of law should prevail… any action by you should be in accordance with the law,” the court however, refused a stay on the demolition saying that it cannot pass an “omnibus order” to prevent the authorities from taking action against unauthorised constructions but asked the concerned authorities to follow the due process of law. A bench of Justices BR Gavai and PS Narasimha said that “rule of law has to be followed” in response to petitions filed by Muslim organisation Jamiat Ulama-i-Hind against the demolition exercises.
Solicitor General Tushar Mehta, however, took objection to the arguments raised by the petitioners and told the bench that the individuals affected by the demolitions have already approached the High Courts. Therefore, he argued that the Jamiat Ulama-i-Hind petitions are creating a “sensationalising hype unnecessarily”. Senior counsel Harish Salve, appearing for the Uttar Pradesh government on the other hand argued that the court cannot stay demolitions only because the property that is to be razed belongs to an individual accused in a case. Senior Advocate Dushyant Dave appearing for the petitioners in this case stated that- “There is a pick and choose against the other community, the entire Sainik Farm is illegal. Nobody has touched it in 50 years. Look at the illegal farm houses in Delhi. No action taken. Selective action is taken.”
This was not the first petition filed by Jamiat Ulama-i-Hind, it had also previously filed a plea, challenging the Jahangirpuri demolitions that took place in Delhi on April 21 wherein The Supreme Court had halted the demolition drive by the North Delhi Municipal Corporation and ordered it to maintain the status quo on the exercise. The BJP-controlled North Delhi Municipal Corporation had razed several Muslim-owned shops and properties in the area claiming that they were illegally built. The drive began four days after communal violence erupted in the locality when a Hindu religious procession armed with guns and swords passed a mosque.
While there are no provisions under Indian law to demolish the home of anyone accused of a crime, this pattern has been regularly observed in recent times and has put spotlight on hardships suffered by the immediate family members of the accused persons whose homes are demolished. Social activists and a section of politicians have also raised questions over the legality of such punitive actions.
In September too, the Bhopal district administration demolished the illegal house of a bus driver who had allegedly raped a minor girl, a nursery student of a renowned private school. After the driver was arrested by the police, officials from the local administration reached his two-room temporary home in Ajay Nagar in the state capital and flattened it without giving any opportunity to his family members to shift to some other place alleging that the said structure was built illegally. The family alleged no prior notice was given before pulling down their home. The questions that arose at that time were- How did this illegality come to notice of the administration only when he committed a crime? Where were they when the house was being constructed?
It was also contended by various activists that authorities should have given a thought about the driver’s family members, including his wife and two minor girls, besides parents who are now without a roof on their head.
It cannot be argued that while a government can easily exist without laws, law cannot exist without government. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law and the world no longer has a choice between force and law; if civilization is to survive, it must choose the rule of law.
