"It is an outrageous thing to say."
Senior advocate Colin Gonsalves slammed the Uttar Pradesh authorities' recent drive demolishing the homes of those alleged to have been part of protests against BJP spokesperson Nupur Sharma's comments about Prophet Muhammad, some of which saw violence.
The UP police claims action was taken against those who damaged public and private property, but Gonsalves, one of India's leading human rights lawyers, says this is not how the criminal justice system works.
"You may be a murderer, you may be anything. You may be caught, sent to jail, convicted. Do (authorities) have a right to break the house, where the family is staying? It's not part of your sentence – 'I hereby sentence you to jail for the rest of your life, and I hereby sentence you to have your house broken'. What kind of dadagiri – it's political dadagiri – is this?"Senior advocate Colin Gonsalves to The Quint
Gonsalves is also not buying the belated attempts by the UP authorities, whether police or local administrations, to claim that they were only demolishing illegal structures which they are allowed to do under the law (at different times, the UP authorities have sought to justify their actions under a planning and development act, a law on compensation for damage to property, and the UP Gangsters Act).
"No law authorises you to have a double punishment. I will send you to jail and will punish you by breaking your house – no law," he explains.
He notes that when it comes to UP's law on compensation for damage to public and private property, this is based on the guidelines issued by the Supreme Court in a matter regarding this issue, first in 2009 and then reiterated in 2019.
According to the Supreme Court's guidelines, the assessment of damage has to be by a claims tribunal which is headed by a retired judge, and there needs to be videographic evidence of the specific person from whom compensation is being demanded, engaged in damage to property.
Not only is this not done for many of the people whose houses were demolished, this compensation law does not allow for demolition of properties, only their attachment.
But Don't UP Authorities Also Claim These Are Illegal Structures?
Gonsalves argues that there are four problems with any demolition even on these grounds:
Just because a structure is illegal, this doesn't mean it has to be demolished.
Demolitions and removals of people from 'illegal structures' is supposed to be done only when there is an encroachment of public land that needs to be used for a public purpose.
Adequate notice has to be given to the people residing in the structure, and a proper chance to file relevant appeals with the authorities or the courts.
There has to be a plan for rehabilitation of those whose homes are being demolished.
UP authorities have tried to claim that they had actually provided notice to the people whose homes were demolished over the illegalities, including to the family of Javed Mohammad, the man they claim was the mastermind of the protests in Prayagraj.
The demolition of this house, in which Javed's daughter Afreen Fatima, a student-activist also lived, made international headlines.
Gonsalves says that the UP authorities and then BJP spokespersons told blatant lies about demolition. The house was not even bought by Javed or was in his name, it had been a gift to his wife from her family, and had stood for years without any claims of illegality.
The police claimed notices had been sent to the family about the illegal nature of the structure in May 2022, and their failure to respond to them led to a final notice on the night of 11 June, with the house demolished the next day. The family insists they never received the notice.
"That May notice was never served. It's a backdating trick. So you backdate the notice – it was never received by Javed or he would have signed 'received' and he would take action immediately by going to court. So that is the way, the high-handed manner, unlawful manner, unconstitutional manner, in which they demolished his house," Gonsalves contends.
Gonsalves believes that these demolitions are a threat to democracy, because they signal to the public that might is right, and that majoritarian rule can be used to trump fundamental rights guaranteed by the Constitution.
The Constitution restricts rule by the majority and is supposed to have supremacy in a constitutional democracy, not Parliament or the party with the largest number of votes, he reminds us.
"The persons who don't want the Constitution – you must understand they're not just fringe elements or fanatics. They realise that the Constitution puts limitations on misrule by the majority. This they don't want."Senior advocate Colin Gonsalves to The Quint
In conclusion, he issues a stark warning about this new trend towards 'Bulldozer Raj' in UP and elsewhere:
"So how serious is this? It is a direction, a movement towards fascism."
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