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'Government cannot pick and choose as to against whom they want to take action and against whom they do not want to take action.'
The Supreme Court of India on October 4 came down heavily on Gujarat officials after they demolished a 500-year-old mosque and graveyard near the Somnath temple.
The apex court warned that the district authorities would be liable to restore the structures if their actions were found to be in contempt of court orders, even as it refused to stay the demolition drive.
On September 17, the Supreme Court had passed an interim order stating that no bulldozer demolition should be undertaken in any part of the country without its permission.
On October 1, the apex court had stated it will lay down guidelines for the demolition of properties.
Syed Firdaus Ashraf/Rediff.com spoke to lawyer M Huzaifa, associated with the Association for Protection of Civil Rights (APCR) just before the Supreme Court warning to Gujarat officials.
Huzaifa is facilitating legal representation for two intervenors, Rashid Khan (Udaipur) and Mohammad Hussain (Jaora), in the bulldozer demolition case before the Supreme Court.
On September 17, the Supreme Court said that no demolition must take place without its permission till October 1, but in Gujarat on September 28 the government demolished a 500-year-old mosque and a graveyard near the Somnath temple. Does it mean that the Supreme Court order has no meaning?
The Supreme Court's interim stay order on taking no demolition action is not very effective. This interim order is applicable pan-India, but despite that there is a small authority in India which is at the district level or local municipality level (which is not following the guidelines).
They are going on with the demolitions and one can state that it is possible that this Supreme Court interim order must not have been communicated to those local municipality level authorities (in Gujarat).
Are there many places where demolitions are still taking place?
Yes, we have got many cases from Rajasthan and Madhya Pradesh. They have come after the Supreme Court's interim order on September 17.
The Supreme Court did say that its ban on demolitions won't apply to properties on footpaths, public roads, railway lines, waterbodies, etc.
State governments can always cite this and demolish the properties of an accused who has a criminal background, isn't it?
The court has given an exception and not a blanket ban, but then this is a very trivial matter. The demolitions have taken post September 17 at places which come under the ambit of the Supreme Court order.
One example is that of a widow (Barkat Bai, 80 from Neemuch, Madhya Pradesh) who was allotted a government patta (patch of land). She has one daughter and had no income too. The bulldozer was run on her property without her knowledge (on September 24, after the Supreme Court's interim order).
What was her crime?
No crime. There was a connivance of local authorities (external link) to demolish (Barkat Bai's home).
The Supreme Court interim stay is continuing even now, but yet demolition is taking place.
Why is no contempt petition filed against those who are violating the Supreme Court order?
The cost is very heavy to move a contempt petition. How can this poor widow from Neemuch reach the Supreme Court and file a contempt petition? It will involve a lot of money for her.
The scale is wide and poor people do not have the means to fight against local municipal authorities who are going against the Supreme Court order on demolition.
Whenever news come out that an accused's property was demolished it is always stated that an illegal structure was demolished. Is that true? Does the police have the right to demolish illegal structures?
If we move into the legal and illegal debate, then you can find that many posh colonies have illegal structures in our country. If we try to bulldoze every corner in the country saying it is illegal, then most of the infrastructure will turn into rubble.
There is laxity at the local municipality level that they allow illegal structures to be built when they should not be built in the first place.
The object of the municipality is to prevent the construction of illegal buildings or structures rather than demolishing those structures after someone is caught in some crime. And that is why I say instead of saying illegal structure, it is illegal to demolish a structure.
Moreover, just because a FIR (First Information Report) is filed against a person you do illegal classification of that person's residence.
The Supreme Court of India too says in its interim order, why are you choosing that particular house?
This observation clearly states that you cannot let only one house which is illegal to be targeted and let all other homes which are illegal in the vicinity to go scot free and not face demolition squads.
This kind of demolition goes against the right to equality.
If you want to do illegal demolition, then do so in every illegal structure which is in line of that building and not that of the accused alone.
Government cannot pick and choose as to against whom they want to take action and against whom they do not want to take action.
In some way is this like the Sippenhaft of Hitler's time when the entire family was punished for an illegal act by a family member?
Absolutely. Bulldozer justice is like Sippenhaft justice. It is a collective form of punishment the government is giving to citizens of this country.
Bulldozer justice is a borrowed concept from the Israeli justice system where they take action against Palestinians in the same way. There is a history to it which was practised in other countries.
India never had a history of bulldozer justice as it is outside the ambit of law.