Samriddha Sen, a law student at the Department of Law, University of Calcutta in Kolkata, West Bengal, India discusses a controversial "removal" action in a predominantly Muslim quarter of New Delhi...
In the early hours of Tuesday April 19, the North Delhi Municipal Corporation issued a notification ordering the commencement of a “special joint encroachment removal action programme” in the Jahangirpuri area of New Delhi, a predominantly Muslim district of the city. The notification, issued from the 19th of April to the 21st of April, was dubious at best, given the circumstances under which it was issued.
On April 16, a mere 3 days prior to the issuance of the notification, communal violence had occurred in the Jahangirpuri area between Hindus and Muslims over a religious procession convened for Hanuman Jayanti. This is a Hindu festival which commemorates the birth of Lord Hanumana, an ardent devotee of Lord Rama. The participants of the Hindu procession began chanting Lord Rama’s name while passing a mosque. On a side note, it is appalling that chanting the name of Lord Rama has increasingly become an archetype of the growing religious divide that has held Indian society and its moral constitution hostage to religious fanaticism.
The dubiousness of the circumstances surrounding the notification have led many to assume it was issued to retaliate against Muslim residents of Jahangirpuri for allegedly partaking in the communal violence. In the aftermath of the violence, which entailed stone pelting and widespread destruction of public and private property, eight law enforcement personnel and one local resident were injured. Five individuals were charged under India’s draconian National Security Act, a legislation which enables law enforcement to detain individuals preventatively without charge or counsel for months on undefined and superfluous grounds of state security.
As part of the demolition drive on the morning of April 19, bulldozers from the North Delhi Municipal Corporation under heavy police guard demolished residences, establishments and other constructions deemed to be encroaching public roads. The action resulted in loss of property and livelihood of many, disproportionately affecting Muslim residents of Jahangirpuri.
Subsequently, on April 20, in response to an urgent review of a case titled Jamiat Ulama-i-Hind v. North Delhi Municipal Corporation & Ors. before a three-judge bench of the Supreme Court with Chief Justice of India N. V. Ramana presiding, the Court directed status quo i.e., cessation on the demolition drive effective on and from the same date until April 21.
In a blatant and reckless disregard of the Supreme Court’s April 20th order, which by all accounts constituted the final and arguably the most fatal political flouting of India’s declining rule of law, the demolition drive in Jahangirpuri continued for more than an hour after the status quo order. It was only by subsequent direction to the Court Registry, that the Supreme Court oversaw the circulation of the status quo order to the appropriate municipal and law enforcement authorities for immediate compliance.
On April 21, a division-bench of the Supreme Court led by Justice Nageshwar Rao extended the status quo to subsist in the interim until the next hearing date, which was scheduled for 2 weeks thereafter. Along with the order extending the status quo, the Court also agreed to hear a petition challenging similar demolitions in Madhya Pradesh, Gujarat and Uttar Pradesh.
The demolition drive is couched deceptively in the verbiage of an “encroachment removal action programme,” a phrase undefined under the Delhi Municipal Corporation Act. The notification also anticipated an impending law and order crisis resulting from the proposed “encroachment removal action.” Accordingly, the Delhi Municipal Corporation requested a sizable presence of 400 local law enforcement officers in the ostensible interest to preserve order.
Even if such an unstated and nebulous pretext is to be accepted prima facie for the purpose of legitimizing the premise and/or basis of the notification, the fact that the notification entailed a demolition drive for construction over a large area without notice or opportunity to take legal recourse thereagainst, constituted a clear and undeniable violation of proportionality fundamental to the rule of law. Under the Delhi Municipal Corporation Act, notice of a minimum 5 days and maximum of 15 days time is to be given to a property owner to demolish a structure which causes obstruction to public conveyance. Further, the owner has a right to a reasonable opportunity of showing cause as to why the order or demolition should not take effect. However, the North Delhi Municipal Corporation’s legal justifications before the Supreme Court show no mention of the the April 19th notification.
The demolition drive is also arguably in contravention to a 1985 ruling of the Supreme Court in Olga Tellis which settled the constitutional recognition of the livelihood rights of hawkers and street dwellers. The Olga Tellis ruling made it imperative for municipal authorities to respect two broad sets of constitutional entitlements prior to the initiation of a forceful encroachment removal action – (i) right to notice and hearing prior to eviction and (ii) subsequent rehabilitation under existing housing schemes.
Legal scrutiny aside, it does not require much emotional diligence to assess the immorality of such a reckless and arbitrary state action. A modern secular state cannot wantonly breach the “lakshman rekha” (moral boundaries) of constitutional propriety under the ostensible guise of a majoritarian political mandate. The state cannot be permitted to engage in practices which arbitrarily and in-a-moment’s-notice destroy the life, livelihood and housing of individuals on mere administrative whims and fancy. Arbitrary and capricious actions such as these compel us as electorates and responsible citizens, to ask ourselves, what it means to stand up for a constitution whose very liberal foundation is at risk of being demolished by a burgeoning political wave that seeks to reject the soul of a nation at the altar of political expediency.
Samriddha Sen is a final year BA. LL.B undergraduate at the Department of Law, University of Calcutta.
Suggested citation: Samriddha Sen, Jahangirpuri and the Demolishing of India’s Rule of Law, JURIST – Student Commentary, May 25, 2022, https://www.jurist.org/commentary/2022/05/samriddha-sen-jahangirpuri-india-hindu-muslim-removal-action/.
This article was prepared for publication by Rebekah Malkin, a JURIST staff editor. Please direct any questions or comments to she/her/hers at firstname.lastname@example.org
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.