The Platform

Photo illustration by John Lyman

The recent demolition drive targeting Muslim properties in Nuh, Haryana exemplifies how the state machinery can be subverted to pursue an agenda of ethnic cleansing under the guise of maintaining law and order.

On July 31, 2023, communal violence erupted in Haryana’s Nuh district, resulting in several tragic deaths. To restore order, the government imposed a curfew, restricting not only movement but also speech and expression and numerous arrests were made. However, the most contentious action was the arbitrary demolition of over 300 properties owned by Muslims.

While the government claimed these actions were necessary to restore peace, the demolitions deprived citizens of their property without due process, violating constitutional mandates and judicial precedents.

The Punjab and Haryana High Court took suo motu action following the demolitions but has yet to render a decision due to the prolonged nature of the litigation. The most recent update, on May 2, merely solicited a response from the government. This situation underscores the urgent need for comprehensive measures to address the issue, as relying solely on the judiciary’s reactive action is insufficient to resolve this concern.

The 44th Amendment to the Indian Constitution eliminated the right to property as a fundamental right, introducing Article 300A, which allows the government to take a citizen’s property only with the authority of the law. Judicial bodies have laid out concrete guidelines, particularly in light of the recurring demolition drives carried out under the guise of maintaining peace and order. In reality, these actions often amount to collective communal punishment targeting a specific ethnicity.

In the landmark case of Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., the Supreme Court mandated the administrative requirement of providing an opportunity to be heard and given due notice before forcibly evicting individuals from their property, even if the property is illegally occupied. This principle was concretized in Maneka Gandhi vs. Union of India, where the court affirmed that due process is an integral part of the procedure established by law. Hence, despite government sanction, any demolition drive must comply with the touchstones of ‘reasonableness’ and ‘due process.’

Contrary to the existing legal discourse, the Nuh demolition drive witnessed fanciful, oppressive, and arbitrary state action. The premises were neither illegally occupied, nor was the prior notice requirement adhered to. Following four days of rampant demolitions, the Punjab and Haryana High Court impugned such exercises.

The court unequivocally halted the drive until the state submitted an affidavit establishing that the exercise was carried out with due process of law and was not merely an act of “ethnic cleansing.” Although the state argues otherwise, the intention is quite apparent from the Home Minister’s testimony, referring to the action as treatment for communal violence.

Due to the prolonged adversarial nature of the litigation proceedings, the court has not yet rendered a decision. The recent update from May 2, indicates that the High Court sought a response from the Haryana government on writ petitions seeking compensation and eight intervention applications filed in the suo motu case initiated after the demolition drive in the Nuh district. Significantly, it becomes imperative to unveil the cloak that often disguises the apparent use of the law-and-order situation as a pretext to demolish buildings without following established legal procedures, even in the absence of demolition orders and notices.

The targeted punitive measures against the Muslim community following religious conflict and related demolitions unequivocally constitute an instance of “ethnic cleansing,” according to the UN’s characterization. This situation aligns with the UN’s delineation of ethnic cleansing as a deliberate strategy involving terror to expel a specific ethnic group from a defined geographical region. This distressing scenario is prevalent in areas like Nuh, India, where demolition activities are specifically aimed at displacing a particular community.

The demolition as a remedial measure of state action is entirely unwarranted and unsanctioned in Indian law, as no penal legislation provides such a consequence as a penalty for the offense committed. Not only does the action go against domestic canons of criminal law, but it also infringes on international obligations, as collective punishment is prohibited by the Geneva Convention under Article 32, to which India is a signatory. Moreover, the act of demolition also contravenes the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The unjustifiable forced dispossession of legally owned property invariably leads to “mental suffering,” a criterion outlined in Article 1 for defining torture. Applying punitive measures prohibited even for prisoners of war within the international context contradicts the principles of a rule of law society.

The Nuh demolition campaign reflects a broader pattern of unlawful demolitions in states like Madhya Pradesh, Uttar Pradesh, Gujarat, and Delhi. Legal principles must align with the issue of unauthorized demolitions, ensuring the law’s supremacy. The judiciary has consistently emphasized adherence to legislative norms and constitutional mandates, yet constitutional rights and legal principles have been disregarded. Instead of reactive responses influenced by communal biases, impartial due process must be followed, including advance notice and opportunities for individuals to present their cases.

This situation demands an urgent reevaluation of the state’s approach to law enforcement and property rights, ensuring actions comply with constitutional and international standards.

Bhavya Johari has recently graduated from NALSAR University of Law, Hyderabad and holds keen interest in the intersection of human rights and criminal law. Currently, he is an LLM candidate at London School of Economics and Political Science wherein he aims to bridge the gap between theoretical premises and realities.