Recent demolition drives in the aftermath of the Prophet remarks row may challenge certain basic tenets of law, including the right of a person to be heard first, and that the state can deprive a person of his or her property only after following due procedure and under the authority of a valid law as mandated under Article 300A of the Constitution.
“The right to property under Article 300A is a human right,” former Supreme Court judge Justice V. Gopala Gowda told The Hindu on Wednesday.
Justice Gowda is one of the 12 signatories of a letter urging the Supreme Court to take suo motu cognisance of the demolitions in Uttar Pradesh. The letter conveyed that razing down buildings without giving affected persons prior notice or hearing them first was a violation of the rule of law. Rule of law is a basic feature of the Constitution.
The letter quoted media reports of the Chief Minister “exhorting officials to take such action against those guilty that it sets an example so that no one commits a crime or takes law into their hands in future”. It contended that the “coordinated manner in which the police and development authorities have acted lead to the clear conclusion that demolitions are a form of collective extra judicial punishment, attributable to a state policy which is illegal”.
A plea by Jamiat Ulama-i-Hind in the Supreme Court contended that the “demolition of properties carried out by the Uttar Pradesh government in retaliation was in breach of the laws enacted by the state legislature itself”. It referred to Section 10 of the Uttar Pradesh (Regulation of Building Operations) Act of 1958 which mandates that a building should not be demolished without giving the affected parties “a reasonable opportunity of being heard”. Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973 requires the affected person to be heard and given 15 days’ prior notice before proceeding with the demolition. Besides this, the Act allows a person aggrieved with the order of demolition to appeal within 30 days.
Former Madras High Court judge, Justice K. Chandru, said Article 300A is a “potent” right. He said demolitions were a product of the “politicisation of the bureaucracy”. Justice Chandru said acts like demolition were a “nuclear button” held against “problem creators”.
“It is like cause and effect. If these people have violated building laws, give them a chance to be heard, give them notice… Immediate demolitions without court orders hark back to the Emergency days,” Justice Chandru said.
A slew of Supreme Court decisions on Article 300A, including in the Indian Handicrafts Emporium case, has held that right to property was also a “constitutional right”. Article 300A was inserted shortly after the Emergency through the Constitution (44th Amendment) Act of 1978. Mere executive fiats cannot be used to take away a person’s property, the court has held. While it is inherent for a sovereign state to exercise its power of eminent domain over private property, the deprivation of the property should be for a public purpose and was subject to judicial review.
“Demolitions in U.P. are antithetical not only to Article 300A, but to the spirit of the Constitution as a whole. It infringes the victim's fundamental rights for equality under Article 14, freedoms under Article 19, and the right for dignified life under Article 21 of the Constitution. By demolishing the houses of the citizens, you are actually bulldozing hard-earned freedoms,” Supreme Court advocate Kaleeswaram Raj said.
