Rekha Sharma writes: The bulldozer in Prayagraj poses a challenge to the Constitution

A day before the aforesaid house was bulldozed, Javed was taken into custody for his alleged involvement in the June 10 violence. The same day PMA pasted a notice on the gate of the house, which stated that the construction of 25×60 feet was done on the ground and first floors without taking permission of the concerned authorities. According to the younger daughter of Javed, Sumaiya, the house in question was owned by her mother, Parveen Fatima. It was gifted to Fatima by her father two decades ago. She disclosed that the “notice” that was pasted on the gate of the house was in the name of her father, and not in her mother’s name. The said “notice” asked the residents to vacate the property by 11:00 am on June 12. According to Sumaiya, no government agency had ever told them that it was built illegally, and that the house tax, water tax, and electricity bills were being paid on time.

The authorities have not rebutted Sumaiya’s claims but they have stated that on May 5, a show cause notice was sent to Mohammad Javed and that he did not respond to the same. The family denies having received any such notice. Be that as it may, the question still remains how a notice sent to Javed who was not the owner of the property authorised the authorities to demolish the house which belonged to his wife. She has her own independent identity, and was thus entitled to the protection of law and the procedure prescribed which ought to have been followed before any action was taken in relation to her property. For instance, giving due notice to the rightful owner of the property, providing sufficient time to respond to the same, a personal hearing if asked by the noticee, and even if there is no response from the noticee, a further and final notice informing the noticee of the proposed action. These are principles of natural justice which are at the core of the rule of law, and a democratically elected government is under an obligation to follow them. But unfortunately, these principles were thrown to the winds by the UP government, which now appears to be acting as judge, jury and executioner.

Let us for a moment accept that what is being stated by the UP government is the truth. But the government still needs to do a lot of explaining. For instance, it must disclose when the construction of the building commenced; whether any notice was issued at that stage to the owner informing him/her that the construction was unauthorised, and needed to be stopped; if any action was taken at that stage; if so, what and if not, why; when was the construction completed, and after how much time after its completion was the alleged notice to Javed sent, which he allegedly failed to respond; how many buildings in the locality have been constructed without legal sanction and if they are unauthorised, what action has been taken against those buildings. If no such steps were taken during the course of construction, should not the government functionaries who allowed such illegal construction to come up be identified? Since the UP government appears to believe in demolishing the houses of alleged criminals, even if such punishment is outside the purview of the law, and even though the offence is yet to be proved in a court of law, why should then the houses of all such errant officials be also not demolished? Should not the government of the day and its officials who allowed unauthorised construction be made answerable, and the owner suitably compensated?

What has happened to Mohammad Javed is not a stand-alone case. We are being told that the district police is sending the names of 85 key accused who participated in the incident of June 10 to the civic officials for similar action. Nobody knows on whom the axe may fall next. The next of kin of those in custody are in panic. They are collecting whatever documents they can lay their hands on to stave off the demolition of their houses. Is it not an irony that Nupur Sharma who is in the eye of a storm, and because of whose utterances the country had to face huge embarrassment at the international level, and whom the BJP itself has dropped like a hot potato, is roaming free, while those who are hurt by her remarks are in custody, and in addition, are also facing the threat of demolition? It is nobody’s case that those who indulged in violence on June 10 should be let off or not be dealt with under the laws of the land, but they cannot be punished unless proven guilty by a court of law. In any case, their houses cannot be demolished in the garb of unauthorised construction while the real motive is to teach them a lesson. In this situation, the aggrieved persons have nowhere else to go but to look towards the higher courts, particularly the Supreme Court, which is the custodian of the fundamental rights and civil liberties of the people, to stop this.

It is heartening that the Supreme Court has taken cognisance of the matter. It is, perhaps, too late in the day as far as the aggrieved family is concerned, but then, better late than never. Now that the matter is before the Supreme Court, let us hope and pray that nobody has to join Faiz Ahmed Faiz, a great poet of the Subcontinent, in saying “Bane haiñ ahl-e-havas mudda.i bhi munsif bhi/kise vakil kareñ kis se munsifi chaheñ (The power hungry have become both prosecutor and judge/ who will advocate for me, from whom shall I expect justice?).

The writer is a former judge of the Delhi High Court