“Demolitions Must Follow Due Process of Law” SC Says, But Grants no Stay on UP Demolitions

Manas Dasgupta

NEW DELHI, June 16: The Supreme Court while observing that due process of law must be followed while carrying out demolitions of illegal constructions on Thursday sought the response of the Uttar Pradesh government and the concerned civic bodies in three days before the next hearing on the petition of the Jamiat-Ulama-I-Hind against indiscriminate demolition of private properties in the state.

Amid allegations that Uttar Pradesh was using bulldozers to target those who protested the controversial comments on Prophet Muhammad by members of the ruling BJP, the Supreme Court sternly said, “Demolitions have to be in accordance with law, they cannot be retaliatory.”

The UP government and the civic authorities of Prayagraj and Kanpur were asked to respond to a Supreme Court notice on demolitions before the next hearing on Tuesday. “Everything should look fair…we expect the authorities to act only in accordance with law. Ensure safety so that nothing untoward happens,” said the judges.

Justice A.S. Bopanna leading a Vacation Bench also comprising of Justice Vikram Nath, asked the state to file its objections in the meanwhile. The bench did not pass any interim order staying demolitions but remarked orally that since notice has been issued in the matter, “must make sure that nothing untoward happens in the meanwhile.” “There should be some restraint… Everything should be fair. They should not be harmed. The question here is of following due process,” Justice Bopanna observed orally.

The court agreed to the State government’s suggestion to file an affidavit with details to buttress its claim that the demolitions were carried out only after prior notice was issued to affected persons and the buildings razed down were all illegal constructions.

Appearing for the Jamiat, senior advocate C U Singh said  though the court has issued notice on a matter challenging demolitions in other states, it had not passed any interim orders, and that “taking advantage” of this, “a spate of demolitions have taken place in Uttar Pradesh “and on each occasion, statements are made that these are in retaliation, that people who are allegedly goondas or rioters or stone pelters or persons who have allegedly indulged in violence due to some communal issues and so on, that their houses are being demolished because of that.”

“Statements are being made by high constitutional functionaries, right from the chief minister of Uttar Pradesh downwards and several others. But once the demolitions are carried out or immediately thereafter, they are sought to be justified on the ground that these are illegal constructions. This is happening again and again and it’s like a play book being used. To my mind it’s not shocking but absolutely appalling,” Singh said.

“This is something we have never seen in this nation, not during the Emergency, not even during pre-independence times, that an allegation is made against somebody and their home and shops and offices and the place of business of that person are demolished. These homes may not even be the home of that person but of the father of that person, mother of that person…Allegations are made against X and the home of immediate relatives is demolished. In some cases, these are homes standing for 20 years, 25 years, 30 years, pucca houses and so on,” he added.

Appearing for the UP government, Solicitor General Tushar Mehta said it is very curious that an outfit like Jamiat had filed a plea but nobody who is affected had come forth to file any petition. Referring to the litigation over demolition drive in Jahangirpuri area of the national capital, Mehta said “when such issues arise, everybody wants to have their pound of flesh” and a political party filed a petition seeking relief that nobody should demolish anything anywhere in the country without following the law. He added that no order is needed for such a relief.

Intervening, Justice Bopanna said the matter should not be taken as adversarial, “about who has approached and what…Ultimately, rule of law has to prevail…Let’s not get into who has approached”.

Senior Advocate Harish Salve, appearing for the UP district administration, submitted that “there is a reason why the person appearing becomes relevant.” “Averments are made saying no notice is given. The person who is given notice is not saying so on affidavit. Somebody else is saying I have read in the newspaper that no notice was given,” he said.

Salve pointed out that “one of them (action against illegal encroachment) started in August 2020 and somebody is riding a wave saying this is a good chance for me to protect my property. That is why, as the SG says, who has come to court becomes important.”

Footage of bulldozers demolishing homes of those arrested or identified as protesters in Kanpur, Saharanpur and Prayagraj have spurred allegations that the UP administration is targeting a specific community over the protests against the Prophet comments. Two persons were killed in Jharkhand and hundreds were arrested during the protests over the comments by BJP leader Nupur Sharma, who has since been suspended. Another BJP leader was expelled for his social media post.

The demolitions were “shocking and appalling”, the petitioners told the Supreme Court, alleging that notices were served after houses were razed. “Adequate notices are must. What is being done is unconstitutional and shocking. It is being done by targeting a community,” CU Singh said. He said a notice of at least 15 to 40 days was a must before any demolition.

“The respondents (UP government) will get time for their objections. We should ensure their (affected parties) safety in the meantime. Let’s be clear, they’re also a part of society, ultimately, when someone has a grievance, they have a right to have it addressed,” said Justice AS Bopanna.

The UP government asserted that it had followed the law and had only razed homes that were illegally built. Solicitor General Tushar Mehta said the demolitions had been carried out “irrespective of community.” “The due course of law is followed for demolitions. The media links the demolitions with political statements unnecessarily,” said senior lawyer Harish Salve on behalf of the UP administration. “If the house has been constructed without following any laws at all then they can’t say that they should not even be touched,” Mehta argued, adding that the petitions were based on “misconceptions and politics.”

Justices Bopanna and Vikram Nath took up the case two days after some former judges and senior lawyers wrote to Chief Justice of India NV Ramana urging him to take note of the alleged incidents of illegal detention, razing of homes and police action on those linked to protests over the Prophet comments.

The Supreme Court hearing brought some hope to the family of politician Javed Mohammed, accused by the police of being the mastermind behind violence last Friday in Prayagraj. His bungalow was razed on Sunday. “The biggest thing is the house did not even belong to him; the whole ownership is with his wife. How did you bring down the wife’s house? The wife and other family members are homeless now,” said his lawyer KK Rai.