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Context

The recent anti-encroachment drive in northwest Delhi’s violence-hit Jahangirpuri has become the latest flashpoint between political parties in the national capital.
The matter also reached the Supreme Court, which ordered a stay on the drive.
However, dissidents has now put questions over the legality of actions by municipal authorities and the manner in which certain structures were razed to the ground using bulldozers.

A close look at the pertinent legal provisions and constitutional principles involved in issues related to coercive processes against unauthorised constructions and encroachments may help putting the entire controversy in the right perspective:

What is Encroachment?

Encroachment is a real estate situation where a property owner violates contractual property rights by unlawfully entering, building, or extending structures onto Public Land without permission.
Structural encroachment occurs when a property owner unlawfully builds or extends structures on the Public Land.

Examples of Encroachment:

Unlawfully entering, trespassing, or walking through a property
Building a fence that goes past own property line
Extending structures or buildings onto the public domain (e.g., roads and sidewalks)
Non-government construction that overlaps govt property lines

Why encroachment is a problem?

Land is already a scarce commodity: Illicit occupation of public land puts stress on the already declining land resource availability.
Encroachment results in constriction of the public spaces: Road is narrowed down since it is occupied by structures supporting the livelihoods of the poor.
Public has the right of way: Pedestrians would suffer as people would have fewer spaces to walk. Encroachment on public roads increases the road traffic.
Maintenance of civic amenities becomes difficult: Severs, nullahs are chocked up due to encroachment. This creates sanitation and health crisis especially during monsoons.

Genesis of anti-encroachment drives in India

Anti-CAA protests: In 2019, after protests against the Citizenship Amendment Act (CAA) turned violent in Uttar Pradesh.
Compensation of public property damage: The CM ordered that compensation from property damage will be extracted from those who participated in the riots, to the tune of Rs 50 lakh.
Seizure of properties: He also announced that properties will be seized if people default on these payments.

How is Encroachment Demolition related to Rioting?

Prevention of Damage to Public Property Act, 1984: This is what governs actions taken against people convicted of rioting. However, this act levies a jail term and a fine on the offenders.
Assessment of damages caused: In 2009, the Supreme Court had said that respective high courts can appoint benches to adjudicate on damages during protests and riots.
Civil liability against damaging: In 2018, the Supreme Court had said that individuals will invite civil and criminal liability if found guilty of damaging public property.

What is the communal angle of recent demolition drive?

Ans. State-directed demolition of homes of the alleged rioters

The demolition drive was initiated by North Delhi Municipal Corporation (NDMC) to demolish the “illegal constructions” of the rioters in Jahangirpuri.
Communal violence had broken out in the area when a religious procession, which did not have police permission, clashed with minority community as it went alongside the place of worship.
This put a repulsive on other incidents, in Khargone in MP and Khambhat in Gujarat, where communal flare-ups were followed by the state-directed demolition of homes of the alleged rioters.

How did this intimidate minority groups?

Anti-encroachment drives in India are not new. What is new is that the current drives are outside the pale of the law.

Actions without notice: Irrespective of the legal status of the settlement, no public authority can demolish buildings without giving the affected parties a chance to be heard.
Bulldozing of petty areas: The bulldozer has now become a symbol of brute state power and a revolting mascot to intimidate minority groups in the country.
Collective punishment is state tyranny: It conveys the cynical use of brute state power for collective punishment undermining the basic tenets of criminal law.
Flawed binary of legality over illegality: The binary of slums settlements has very little meaning in Delhi, and much of urban India, since a majority of the residents appears to be of minority community.
Revengeful majoritarian justice: The demolition of homes and shops of alleged culprits of portrays the establishment as a bulldozer state that dispenses revengeful justice.
Public endorsement from the far-rights: Worryingly, the new rule of the bulldozer state seems to have some level of public endorsement.

Why impulsive encroachment demolition is a bad idea?

Issue of fair trial: From the legal perspective, the concept of a fair trial comes under question, since the government issued those notices before the people accused of participating in the riots were tried by any court.
Ambiguity of Public Property Act, 1984: Senior advocates thus said that such a decision is unconstitutional and has no backing from the law.
Curbing dissent: They also claimed seizure of property was being used as a means to curb peaceful dissent staged by certain communities.
Disregard for the due process of law: Such actions show a blatant disregard for the due process of law and established judicial precedents regarding evictions.
Arbitrary actions: Even before any charges are framed, the executive rather than the judiciary arbitrarily imposes a form of collective punishment upon a whole neighbourhood.
Creation of communal disharmony: Petitioners in the case claimed that the demolition drives were communal in nature since they were aimed at the localities of minority communities.

Larger impact: Rise of minority assertion

Marginalization and alienation: Minority community in India feels to be increasingly marginalized ever since the reigning in of the right-winged government. They have faced a spike in attacks, hate speech and harassment.
Demonizing the entire community: The modus operandi looks similar these days, i.e. to create an event of communal tension and clashes, declare names of rioters in a one-sided way, hence demonizing the community.
Rise in collective insecurity: Arbitrarily punitive demolition of this kind using a bulldozer as an extrajudicial threat or extrajudicial punishment is adding fuel to this temptation of insecurity.
Communal disharmony: Arbitrary state actions tends to divide people on religious lines– in most cases the minority and to win power on the basis of a religious identity.
Threats of radicalization: The poor and marginalized community is often vulnerable to the brisk of radicalization. There is a possibility of its inevitability.

Supreme Court rulings on removal of unauthorised constructions and encroachments

There has been a long line of cases underlining the significance of due process and adherence to the principle of natural justice where people are deprived of their rights to shelter or to earn a livelihood:

(1) Ahmedabad Municipal Corporation Vs Nawabkhan Gulabkhan and others (1977)

The top court held that while a notice may not be required in cases of encroachment of recent origin, if a municipal body allows settlement of encroachers for a long time, it must give a notice of reasonable time to such settlers.
If the encroachment is not removed within the specified time, it added, the competent authority would be at liberty to have it removed.
That would meet the fairness of procedure and principle of giving opportunity to remove the encroachment voluntarily by the encroachers.

(2) Olga Tellis Vs Bombay Municipal Corporation (1985)

The landmark verdict acknowledged the right to shelter and the right to earn livelihood as forming part of right to life under Article 21 of the Constitution.
The apex court rejected the plea of BMC that no notice need be given to slum dwellers since slums were sheer encroachments on public lands.
Removal of encroachments without prior notice was arbitrary; the court held that such powers are designed to operate as an “exception” and not the “general rule.”

(3) MC Mehta Case (2006)

The Supreme Court was dealing with sealing of properties in Delhi on account of unauthorised use of properties (residential properties being used for commercial purposes).
It directed that the MCD would first issue public notices in leading newspapers, asking violators to stop misuse of properties within the period of 30 days.

Official justification of the recent demolition drive

Anti-encroachment drives were long due: Officials claimed in court, that the demolitions were a part of anti-encroachment drives that had been planned in advance and were not specifically targeting the alleged rioters.
Discouraging the ever-increasing Slumization: The non-enforcement of strict regulations against encourages the public for encroachment hence the move was carried out.
No communal intent: The demolition drive in New Delhi has bulldozed all illicit constructions irrespective of the encroachers identity since the areas are inhabited by all communities.

Way Forward

Prevention of further encroachments: The local authorities and the state governments must become proactive in the prevention of encroachment of public lands.
Law abiding citizens: The citizens should abide by the rules and regulations and if they violate the rule of law, the violators should be penalized.
Due process of law must be held prime: Respecting the law of the land should be the norm and if there are any deviations the illegal structures should be bulldozed only after following due process of law.
Considering involuntary and forceful encroachments: The Supreme Court’s guidelines in the Olga Tellis judgment needs to be imbibed in true spirit.
Rehabilitation of slum-dwellers: and not the destruction of slums is the only way forward.

Conclusion

Slums and ‘unauthorised’ colonies like Jahangirpuri form the underbelly of India’s capital.
The city derives its energy from the thousands of informal workers living in these colonies.
It is high time the State recognizes their value and rights.