A Brick for a Brick: The new face of justice?

Guest post by Pallavi Mohan

Last Sunday, on the Ram Navami festival, incidents of communal clashes were reported from the Khargone district in Madhya Pradesh. The next day, there were reports of an extensive demolition drive to raze around 45-50 illegal structures on government land in five localities of Khargone. These structures allegedly belonged to the rioters who had taken part in the stone-pelting of the Ram Navami procession on the previous day.

What steps do the administration and police authorities usually take in the event of incidents such as rioting?

When incidents of rioting take place, the police can arrest the persons taking part in the riot and file FIRs against them under Section 146 of the Indian Penal Code and other connected sections to prevent further riots from taking place. Once arrested, the accused can be punished only after they are found guilty by the court in a criminal trial.

If the District Administration apprehends that rioting might take place, then the Magistrate may issue an order under Section 144 of the Criminal Procedure Code directing the public or the persons living in an area to abstain from doing anything that may cause a riot.

What steps has the Madhya Pradesh Government taken regarding the destruction of public property?

The Madhya Pradesh Government has set up a 2-member Claims Tribunal under the “Madhya Pradesh Prevention of Damage to Public and Private Property and Recovery of Damage Act, 2021”. This tribunal will, within three months, assess, quantify and ensure recovery for the damage caused to public and private property during the Khargone rioting. The Act provides that the Claims Tribunals can recover twice the cost of damage to property, with interest, if recovery (of the cost of the damaged property) is not made within 15 days.

Is the demolition drive in Khargone to raze the illegal structures of those accused of rioting, legal?

No, the demolition drive is not legal for several reasons.

One, unless those accused of rioting or stone-pelting on Ram Navami are found guilty by a Court after a criminal trial or are required to pay for damage to property as decided by a Claims tribunal, no punitive action can be taken against them. The act of demolition of their houses is an infringement of their right to life and liberty enshrined in Article 21, which provides that a person shall not be deprived of his/her life or personal liberty except according to the procedure established by law. Here, by denying the accused rioters the right of a criminal trial or a hearing before the Claims Tribunal, they have been punished without following the procedure established by law.

Two, even if the persons whose houses were demolished are found guilty of rioting in a criminal trial or liable for recovery by the Claims Tribunal, the demolition of their houses is illegal. The Indian Penal Code provides the punishment for rioting and other similar offences; iIndian Courts cannot hand out punishments beyond the ones listed there. The Act also circumscribes the powers of the Claims Tribunal and limits the punishment to recovery of damages to those who have destroyed property. An order for the demolition of structures as punishment for rioting is arbitrary and against the principles of Article 21 of the Constitution.

Three, if the structures demolished were illegal and were liable to be razed at a future date, there is a proper procedure to be followed by the municipal authorities before they do so. First, a notice to show cause is issued to the owner to explain why the structure ought not to be demolished. Only after hearing the owner can the government pass the order of demolition. In the meantime, the owner of the building can either vacate the premises or approach the courts for remedies against the demolition. In the present case, there were no notices or hearings before the demolition drive. Proper procedure laid down by law was not followed. Not allowing a hearing also violated principles of natural justice.