The Nuh and Gurugram districts of Haryana have just witnessed the re-enactment of a new normal in Indian politics — the demolition of dwellings and business establishments of people who are accused in criminal cases especially offences having communal sensitivity without following the procedure as established by law. The Punjab and Haryana High Court made a rare interference by taking judicial notice suo motu and stayed the demolition drive. The High Court’s question whether an exercise of ethnic cleansing is being carried out by the State brings us to the heart of the issue.
Within Indian law
Ethnic cleansing is not defined by the Indian Penal Code or international law. Its first use is attributed to a UN appointed Commission of Experts (1992) chaired by Prof. Cherif Bassiouni, a father figure in international criminal law, mandated to look into the war crimes in former Yugoslavia. In its final report, the five member commission referred to ethnic cleansing as “… a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” The commission enumerated state actions like arbitrary arrest and detention, destruction of property, forcible removal, displacement, deportation of civilian population and extra judicia executions in the list of coercive practices that constitute ethnic cleansing.
Despite the lack of statutory recognition, any such subversive act is grossly inimical to the constitutional guarantees under Part III of India’s Constitution. Hence, the concern and judicial intervention under Article 226 of the Constitution of India.
The law and procedure
The High Court took cognisance of the fact that the demolition drive was carried out without “demolition orders and notices”, thereby violative of the procedure established by law. Article 21 of Indian Constitution commands that no person shall be deprived of his life and personal liberty except according to the procedure established by law. In the Maneka Gandhi case (1978), the Supreme Court had expanded the scope of procedure established by law by ruling that such procedure has to be “fair, just and reasonable, not fanciful, oppressive or arbitrary”, thereby introducing the principle of “procedural due process”. Despite such an expansion of the scope of Article 21, it is a constitutional travesty that scant regard for such basic principles is demonstrated by elected governments.
The rule of law or rule by law?
While the rule of law is declared a basic feature of the Constitution, rule by law is the antithesis of all that is represented by rule of law. The rule of law is a government run by law, not men. The roots of the idea of a rule of law can be seen in Article 39 of Magna Carta (1215) that declares that “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” This civilisational journey has since then found its reflection in Article 21 of Indian constitution and had its contours expanded by the Supreme Court. This progressive journey gets barbarically reversed when rule by law comes into play. Rule by law is when the law is used as an instrument of suppression, oppression and social control in the course of implementing a political agenda. The administrative act of demolishing dwellings and buildings without issuing notice and hearing the affected, to further selective social control necessarily warrants judicial interference. Any justification to the contrary amounts to the delegitimisation of the constitutional process.
Elected Chief Ministers and other Ministers in various States have already declared such ‘bulldozing’ as State policy and the Haryana Home Minister chose to be no different when he stated that “bulldozers are part of illaj (treatment)”. This statement found its place in the judicial order passed by the Punjab and Haryana High Court which offers solace to the affected. It’s high time that the courts record such verbal and non-verbal threats issued by elected Ministers who are bound by the oath of office.
The path to justice
It is no one’s case that the people who create unrest in society should not be dealt with as per law; what is derided is the administrative animosity which turns into colourable exercise of power. It is one thing to prosecute the accused, it is another to render his family or neighbour shelterless. In Haryana, taking a cue from administrative excesses, villagers are economically boycotting communities who they perceive to be rivals and such acts create a situation where fraternity, the cherished constitutional ideal, is deterred from remaining even a remote possibility.
“Justice must never take the form of revenge”, recited the then Chief Justice S. A. Bobde in 2019, in a different context when police allegedly took law into their hand and shot dead the accused. When the state tends to persecute on the basis of religion, the Constitution suffers a breakdown. Constitutional Courts are expected to prevent such happenings. There rests the hope of the republic.
Abhilash M.R is a lawyer practising in the Supreme Court
