Bulldozing The Law And The Constitution

Relevance: GS 2 - Important aspects of governance; Indian Constitution; Government policies

(Source: The Hindu, 08/14/23)

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Why in the news?

• Recent events in Haryana's Nuh and Gurugram districts have illuminated a concerning trend in Indian politics - the unregulated demolition of residences and businesses belonging to individuals accused of criminal offenses, particularly those with communal undertones.
• The Punjab and Haryana High Court has initiated suo motu proceedings and suspended the demolition campaign, questioning if it is an "exercise of ethnic cleansing" by the state.

What is Ethnic cleansing?

• The Indian Penal Code or international law does not define ethnic cleansing. Its origin is attributed to a UN-appointed Commission of Experts (1992) chaired by Prof. Cherif Bassiouni, mandated to look into the war crimes in former Yugoslavia.
• The commission in its report referred to ethnic cleansing as a “purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas”.
• The commission enumerated state actions, in the list of coercive practices that constitute ethnic cleansing.They are,
  • arbitrary arrest and detention,
  • destruction of property,
  • forcible removal,
  • displacement,
  • deportation of the civilian population and
  • extrajudicial executions
• Despite the lack of statutory recognition, such actions harm constitutional guarantees in Part III of India's Constitution. Therefore, judicial intervention under Article 226 is necessary to address this concern.

The law and procedure

• Against procedure established by law: The High Court took cognizance of the fact that the demolition drive was carried out without “demolition orders and notices”, thereby violative of the procedure established by law.
• The unjust demolition of buildings without proper notice, infringing on rights for social control, demands judicial intervention.
• Against Article 21: Article 21 of the Indian Constitution commands that no person shall be deprived of his life and personal liberty except according to the procedure established by law.
• Against the principle of procedural due process: In the 1978 Maneka Gandhi case, the Supreme Court broadened the interpretation of "procedure established by law" under Article 21.
• The Court mandated that such procedure has to be “fair, just and reasonable, not fanciful, oppressive or arbitrary”, thereby introducing the principle of “procedural due process”.
• Despite progress in procedural fairness, some elected governments ignore these crucial principles, jeopardizing justice and citizens' rights.
• Against the oath of office: The court should take notice of the verbal and non-verbal threats issued by elected Ministers who are bound by the oath of office.

The rule of law or rule by law?

The path to justice

• Addressing unrest through lawful means is accepted, but when administrative bias becomes an abuse of power the integrity of governance is compromised. This can lead to unfair treatment, erosion of rights, and a breakdown of trust in the system.
• It is crucial to differentiate between prosecuting the accused and rendering their family or neighbors homeless.
• Due to excessive administrative actions, communities in Haryana are boycotting those they perceive as rivals. This is damaging the foundational constitutional principle of fraternity.
• In 2019, Chief Justice S. A. Bobde emphasized "Justice should never be revenge," when police allegedly took the law into their hand and shot dead the accused.
• When the state targets based on religion, the Constitution suffers a breakdown. Constitutional Courts are entrusted with preventing such incidents, upholding the republic's hope.

FAQs

MCQ

Question: Which of the following are regarded as the main features of the “Rule of Law”? (UPSC-2018)

1. Limitation of powers
2. Equality before law
3. People’s responsibility to the Government
4. Liberty and civil rights

Select the correct answer using the code given below :

(a) 1 and 3 only

(b) 2 and 4 only

(c) 1, 2 and 4 only

(d) 1, 2, 3 and 4