The controversial statements made by Nupur Sharma on a television news debate about Prophet Mohammad have led to socio-political upheaval across India, with some protests even turning violent. Sharma, who has since been suspended from her post as the spokesperson for the Bharatiya Janata Party (BJP), has received severe backlash from all corners of the nation and especially from the Muslim community for being derogatory in nature about Prophet Muhammad and hurting their religious feelings.
The BJP has also faced scathing criticism from foreign nations such as Qatar, Saudi Arabia, Indonesia, Turkey and the United States of America among others, who have all condemned the statements deeming them to be highly inappropriate.
Across India, numerous protests erupted, where protesters, mainly followers of Islam, demanded an immediate and unconditional apology from Sharma. Sporadic incidences of violence were also reported as protests soon turned violent with protesters allegedly pelting stones and burning effigies in several districts of Uttar Pradesh, Jharkhand etc.
Now, in this article, we are neither going to look at the political waves that the statements and their repercussions have caused, nor the resultant Islamophobia. Instead, we will specifically delve into the protests that took place in Uttar Pradesh, and the resultant crackdown by the Yogi Adityanath – led Uttar Pradesh Government. We will examine how they exceeded their executive mandate and grossly violated basic human rights by transgressing constitutional boundaries and the due process of law.
The protests in UP
The protests in UP were mainly spread across the districts of Prayagraj, Kanpur, Saharanpur, Lucknow etc. with protests soon turning violent, the protestors resorting to stone – pelting and violence against the police. In response, the police resorted to lathi charge, teargassing and even firing in some cases. First Information Reports (FIRs) were registered against unidentified miscreants, and many who were identified were arrested swiftly. Until this stage, the actions taken by the executive arm of the state were completely justifiable for the preservation of law and order.
However, in the next few days, this lawful procedure dissolved into an arbitrary crackdown against the alleged protesters by the UP Government, with the Bulldozer being its weapon of choice.
The Yogi Adityanath – led regime in the state had resorted to what was touted by his legion of followers a bulldozer justice previously as well. In wake of the CAA – NRC protests in the state, the state government promised strict action against the protesters by ordering seizure of property, a move that was seen as illegal as it failed to follow due process. The same sequence of actions was reported in the crackdown against those to protested Nupur Sharma’s comments, when the government machinery proceeded to bulldoze the house of the alleged chief conspirator in the protests at Prayagraj, Mohammed Javed, just a day after his arrest and within two days of the protests.
Why is this problematic?
Section 53 to 75 of the Indian Penal Code, 1860 bestow upon the judiciary the authority to mete out punishment for all persons that have been proved guilty of an offence punishable under law, and nowhere in the Penal Code is the executive authority given the task of dispensing out the punishments. However, these incidences of indiscriminate bulldozing of properties of ‘alleged’ offenders clearly seem to be an act of retributive punishment against the offenders present in the protests. These actions are nothing less than a brutal high-handedness of the executive machinery of the State and a subversion of the rules of natural justice as entire properties are being razed down to the ground without giving the ‘suspected’ offenders even a chance of a fair hearing.
A petition submitted by six former judges of the Supreme Court and other judicial dignitaries of the nation, demanding the Apex court to take suo moto cognizance of the matter, also states that “Demolitions are a form of collective extra-judicial punishment, attributable to a state policy which is illegal.”
Apart from lacking the moral high ground, the move to arbitrarily bulldoze the properties of identified or alleged offenders, the action also fails to satisfy the test of lawfulness. The UP Urban Planning and Development Act of 1973 is the governing authority regarding the demolition of private properties in the state of Uttar Pradesh.
Section 27(1) of the Act states that where a development has been commenced or is being carried on or has been completed either in contravention of the Master Plan and the map of the construction approved by the appropriate authorities or without the approval of permission in relation to the development area, then the Vice-Chairman or any other equivalent authority may make an order directing that such development shall be removed by demolition or filling or otherwise. The Section further gives the owner of the property is given a chance to remove the property within a maximum period of 40 days from the date of receiving an order of the illegality of such construction, and failure to do so would empower the authorities to remove the property by the aforementioned methods. An opportunity to contest the notice of demolition of illegal construction is also given to the owner of the property by an appeal to the Chairman of the Development Authority within 30 days of the date of notice. After hearing of the appeal, the decision of the Chairman is final on whether to proceed or dismiss of the notice of the demolition.
With respect to this particular incident, the State mentions in its statements that the notice was served against Javed before on May 10, and he did not appear for the appeal hearing and thus due process was followed in the demolition of the property. However, this claim of the State is allegedly riddled by fallacies, and the claim of the aggrieved party in its petition before the Supreme Court, the notice was affixed on the gate of the property on June 11, giving them less than 24 hours, which is clearly not adequate time to challenge the demolition order and is an overt violation of Section 27, which provides for time to appeal the order. And even if we assume that the property was indeed illegally constructed, why did this illegality suddenly arise only after Javed’s arrest; why did the state continue to earn taxes on the allegedly illegal property. Moreover, the property which was demolished was registered in the name of Javed’s wife, but the fact that the order for demolition was addressed to Javed clearly portrays haste to demolish the property without even paying heed to the particulars of the notice.
Apart from this, most importantly arbitrary demolitions as a retributive measure are also a flagrant violation of the Right to Property as vested in Article 300A of the Constitution of India. The Article states, “No person shall be deprived of his property save by authority of law”, thus vesting the right to property as an inherent constitutional right except for dispossession by a due procedure of law. Although this right is no longer a fundamental right, even then the courts have seldom found this right to be enshrined as an extended interpretation of Article 21 which bestows the Right to Life and Personal Liberty. As in the case of Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., where the court while commenting on the Right to Livelihood as under Article 21 found that it would also include the right to residence. Further, in the case of U.P. Avas Evam Vikas Parishad & Anr vs Friends Coop. Housing Society Ltd., the Apex Court had held that “the right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and the right to life under Article 21.”
Thus, the demolitions at Prayagraj stand clearly in contravention of the constitutional right of property as the demolitions have been performed without a speck of care about the due procedure and in violation of Section 27 of the UP Urban Planning and Development Act.
Conclusion
Protests are an inherent part of a democratic setup, the Supreme Court also heralding it as an important right of the citizens and an important medium for amplifying the voice of the dissenting and the oppressed. But participation in a violent protest and disrupting public harmony is, in no manner, justifiable and any participant is liable for criminal action by the judiciary following the due process. However, this, no manner begets, demolition of private property by the state apparatus and even when the guilt has not yet been confirmed by the judicial process. Causing harm to the public and private property is a criminal wrong and not a part of the right to protest but still extra-judicial punishment for these protestors cannot be legitimised. Open claims of the state government announcing that any such protestor’s property would be bulldozed down are completely unjustifiable and unconstitutional. Even if justice is expedited and further protests are deterred, these actions severely threaten the human and constitutional rights of those named in the protests and further aggravates the alienation of the said community in society.
*The author is a Third-Year law student from Dr. Ram Manohar Lohiya National Law University, Lucknow.
Related:
Supreme Court refuses to pass Omnibus Orders against demolitions across states
Allegations of selective demolitions are false, Due process of law followed: UP gov’t to SC
Repair, compensate, prosecute: Parveen Fatima in petition before Allahabad HC