One of the very basic principles of natural justice, which forms the basis of judicial procedure for civil and criminal law cases, is the right to be heard.
You don't have to know the Latin phrase for this – Audi Alteram Partem – to understand its significance.
Whether you are making a decision about the guilt of someone accused of an offence like theft or about which of two squabbling neighbours owns a patch of land, it is absolutely essential to hear both sides before you make up your mind.
Any country which doesn't want to be a dictatorship or a feudal monarchy, ie, any country which follows the rule of law, incorporates this basic principle of fairness into its legal system.
It becomes one of those things which is the bedrock of a functioning society without having to think too much about it, like how murder is bad, or how willfully misleading others is wrong.
India, despite all the evidence to the contrary, also retains this basic principle of justice in its laws and is supposed to still follow the rule of law.
Mobs and criminals obviously don't care for natural justice or the rule of law, but the State is still bound by them, and can be held accountable in the courts if it acts without following the law.
'Rule of Bulldozer' in Madhya Pradesh
Which is why there are serious questions to be asked about what has been taking place in Madhya Pradesh's Khargone district in the aftermath of the communal violence which erupted there on Ram Navami.
16 houses and 29 shops, mostly owned by the Muslim community, were demolished by the district administration on 11 April, the day after the clashes.
While the local police have now tried to argue that they demolished properties which were illegal encroachments, the Madhya Pradesh government and local authorities have claimed that the demolitions were a response to rioters and stone-pelters.
MP Home Minister Narottam Mishra had, on the morning of 11 April, said at a press conference: "jis ghar se patthar aaye hain us ghar ko pattharon ka hi dher banayenge (Whichever houses were involved in stone pelting, we'll ensure they are turned into piles of stones themselves)."
While he claimed that the law was being followed and that illegal encroachments had been targeted, Mishra reiterated this position in an interview with India Today, saying that the message being sent was that "This is Madhya Pradesh and rioters will not be spared." [see 25:55 below]
The DIG of Khargone, Tilak Singh had also said that the demolition drive was being carried out "as per our policy of zero tolerance of violence."
The Public Relations Officer of the Khargone district administration also put up a tweet sharing a video of the demolition drive in which it said that following the arrest of those responsible for disturbing harmony by stone-pelting, they were being punished for the financial loss they caused.
The tweet also claimed that the bulldozers were sent in on the instructions of the administration.
Is There Any Law Which Justifies the Demolitions?
There is no law in force, whether passed by Parliament or the Madhya Pradesh Legislative Assembly, which would allow the demolition of property of those accused of being involved in riots and damage to public/private property.
Punitive action against an accused person can only take place after conviction in a court of law, which is of course the way in which the right to be heard finds its place in criminal law.
The person has to be informed of the charges against them, a court has to take cognisance of the charges, the prosecution has to provide evidence to prove its case, and the accused gets to present their own evidence and claim any defences valid under the law. The court has to weigh everything and see if the person's guilt has been proved beyond all reasonable doubt.
Even if they are convicted, Indian criminal law only prescribes punishment in the form of imprisonment and/or fines, not demolition of their property.
Retributive action of this sort, which also runs the risk of being collective punishment since it can impact those who are in no way connected to any criminal activity, is absolutely not allowed under Indian criminal law.
Madhya Pradesh Prevention and Recovery of Damage to Public and Private Property Act, 2021
The Madhya Pradesh government in December 2021 passed a law similar to the one in Uttar Pradesh whereby those accused of causing damage to public and private property (whether during riots or protests or otherwise), can be sent notices to pay compensation for such damage.
The amount that can be recovered under this law can be up to twice the cost of the damage caused under the MP law.
However, while this law does allow attachment of property of such persons, that can only take place after a formal claims process has been initiated and a finding made that the person was involved in the damage to property.
A person sent a recovery notice under this law also has the right to be heard before a decision is made against them, another manifestation of Audi Alteram Partem.
The MP government notified the setting up of a claims tribunal for the compensation process on 12 April (after the demolitions), but no assessments have been made by the claims commissioners till now.
In any case, even if certain people are ordered to pay compensation under this law and their properties are attached to ensure payment is made, there is no provision in the law for demolition of properties.
The UP law for recovery of damages from protesters is currently under challenge in the courts. The Supreme Court recently ordered the UP government to compensate those from whom it had recovered damages without following a claims tribunal process.
Madhya Pradesh also passed a Gangsters and Anti-Social Activities Act in December 2021 similar again to an old UP legislation.
However, even though the UP iteration of this law has been cited by UP authorities when bulldozing the houses of those accused of being gangsters, even that legislation does not allow for the demolition of a gangster's property, only its attachment.
Law on Illegal Encroachments
The only circumstance in which the demolition of a person's private property is if there is any illegal construction, for instance by encroaching on another person's land, or if the structure fails to comply with regulations.
While the local police are now claiming that the properties were in fact illegal constructions, there is a process which has to be followed for demolition in cases like that, including allowing the person an opportunity to be heard.
Rule 12 of the Madhya Pradesh Bhumi Vikas Rules of 1984, on occupancy violations, requires a notice to be sent to any person who is using a building in violation of the Rules, and requires them to be given ten days to either leave or fix the illegalities.
Multiple people whose properties were demolished in Khargone, including a Hindu shopkeeper Narendra Gupta, confirmed to The Quint that they had not been provided with any notice regarding illegal encroachments.
"They broke down the entire shop and we were neither informed about the demolition nor were we allowed to remove our belongings. There were medicines, which could have cured so many patients. All is gone to dust now."Mohammad Salman to The Quint on 12 April
Khargone collector, Anugraha P refuted these claims, arguing: “These names were already on the list of people who have built establishments by encroaching on the government lands and coincidentally many of them were involved in the riots. The demolition drive is completely legal, everyone was given prior notice."
One of those whose house was demolished, Amjad Khan, argued that not only had he had nothing to do with the violence, his house had been built under the Pradhan Mantri Awas Yojana and he had obtained permission from the authorities for its construction.
Another, Sadulla Baig said that the authorities had a few months ago demolished the parts of his house that they claimed were illegal, demarcated the land that belonged to him, but still came and demolished the whole building on 11 April.
Violation of the Right to Property?
The freedom to acquire, hold and dispose of private property was originally a fundamental right under the Constitution in Article 19(1)(f). In 1978, in line with the socialist ideals prevalent at the time, this fundamental right was repealed by a constitutional amendment.
Article 31 of the Constitution, within Part III (ie relating to fundamental rights) also said that people could not be deprived of their property except by the law and dealt with how compulsory acquisitions were to take place. This too was repealed in 1978.
However, this does not mean that a person's private property can just be destroyed or taken away at the whims of the government.
Article 300A, which was added to the Constitution after the repeal of Article 19(1)(f), says: "No person shall be deprived of his property save by authority of law."
This means that any action which takes away a person's property has to be in accordance with an Act or Rules or other statutory instrument passed by the central or state government, including the procedure established by such law.
Once again, this is an expression of the basic concept of the right to be heard, and makes sure that a person does not suffer a loss of their property without being given a chance to defend themselves.
As explained above, there is no law which justifies the demolition drive in Khargone on 11 April as a punishment for those accused of stone pelting, as the MP authorities have tried to argue. While demolitions can take place for illegal encroachments there too the correct procedure has to be followed, otherwise the demolitions would be illegal.
Those persons whose properties were damaged can, if the process for illegal encroachments was not followed, approach the Madhya Pradesh High Court for relief as they have been deprived of their property without authority of the law.