One hopes that Madhya Pradesh’s higher judiciary or the Supreme Court stops the government from becoming the judge, the jury and the executioner. If that is not done, we will be heading down a dangerous path

The Indian Constitution recognises three cardinal principles: one. presumption of innocence, two, rule of law; and three, separation of powers between the three wings of the government. The recent demolition of over 45 structures in Khargone in Madhya Pradesh following the Ram Navami violence violates all three. [Emphasis added.] There were two justifications given for the demolition. First was that stones were pelted from these houses and second, that the structures were illegal. However, looking at the statements of the chief minister and the home minister made even before Ram Navami, it is clear that the sole objective was to demolish these structures from where the alleged stone throwing happened. The demolition was done by the local planning authority with the support of the police and the political executive. If a stone is thrown from a house, that house will be demolished. This is one part of the message. The political and ideological component of this I will consider a little later. But is this even legal? Is this constitutional? Is it even moral? The answer will have to be a resounding ‘no’.
To begin with, whether a stone was actually thrown from a house has to be proved for any legal action to be taken against the structure or its owner. In this case, only FIRs have been filed. Investigations have barely even begun. After that a charge sheet will be filed followed by a trial which may or may not lead to conviction. Even if a person is convicted of stone throwing, he will either be punished with fine or imprisonment. The house will not come into the picture even after the conviction.
The other course of action could The other be prosecution under the recently enacted “The Madhya Pradesh Prevention of Damage to Public and Private Property and Recovery of Damages Act, 2021. Similar laws were earlier passed in 2021 in Uttar Pradesh passed and Haryana.
The Madhya Pradesh law provides for setting up of a tribunal which would look into claims of property damage after riots, strikes or protests which cause damage to public and private property. Under this law, claims have to be made and this tribunal headed by a retired judge will decide their validity. After this, damages will be ascertained and the guilty party will have to pay. If payment is not made, a convict’s property can be attached.
But even under this law, there is an entire procedure laid out for finding whether a person accused of damaging property is guilty or not. The law gives that person the right to defend himself. Even if he is found guilty, there is a provision for only attaching a property. Mind you, demolition still does not come into picture even under this law.
There was an announcement after the Ram Navami incidents, in fact, that such a tribunal had been constituted. Thus destruction of houses for stone throwing does not find any place under civil or criminal law. The only law which allows destruction of a house or structure in such situations is the Armed Forces Special Powers Act, which deals with terrorism. Even under this law, the power to destroy a structure is given only in limited situations such as a large number of dangerous arms being hoarded in a structure or militants firing from a structure and refusing to surrender.
Of course, this law is not even applicable in Madhya Pradesh. The nationally applicable anti terror law – the Unlawful Activities Prevention Act (UAPA) – does not permit demolition of houses.
The argument that the houses in Khargone were destroyed because these were illegal structures is also suspect. Many of these structures were decades old. Right from the 1983 decision of the Supreme Court in Olga Tellis followed by similar decisions in the cases of Chameli Singh and Nawab Khan it has been laid down that the owners of illegal structures require to be given adequate notices before any action is taken.
No such notice seemed to have been given in Khargone. The cherry on the cake is that a house constructed under the Pradhan Mantri Awas Yojna was also destroyed.
Not just Khargone, but entire Madhya Pradesh is replete with illegal structures. Why were only those from which allegedly stones were thrown have been targeted and not others. Why no action is ever taken against government officials who allowed these illegal structures to come up in the first place and then provided them protection for decades.
It is abundantly clear from the statements of the political and non-political executives that illegality of structures was just a fig leaf. The real reason for the demolitions was the alleged stone throwing from these houses which is yet to be proved. This also amounts to assigning guilt by association – an entire building being demolished because one tenant threw a stone. This again has no place under the Indian law.
The Madhya Pradesh government’s action is in complete violation of the enacted laws as well as the Constitution. The executive here played the role of the prosecutor, the judge and the executioner. The chief minister appears to have directly or tacitly authorised this illegal and unconstitutional action. One hopes that the state’s High Court or the Supreme Court will take suo motu action as otherwise this will become the norm for targeting individuals or communities.
The last thing one expects in a democracy sworn to abide by the rule of law is that such actions go unaccounted for and unpunished. Of course, if recent history is anything to go by, neither the opposition nor the various accountability institutions set up under the Constitution or the various laws will take any serious action.
It is still being investigated as to how the riot started. Was there any provocation? Who was responsible for the escalation? If reports are to be believed, the FIRS have only been lodged against the Muslims and an overwhelming majority of those arrested are Muslims too. The chief minister and others in the political executive have already concluded that the Muslims were the cause of the Ram Navmi incident. There is no condemnation of hate speeches which regularly occur in Dharm Sansads, social media, rallies and meetings.
Facially neutral laws such as the Property Destruction laws, Anti Conversion laws, detention laws, sedition and anti terror laws are overwhelmingly used only against those who express even a mildly dissenting view from that of the political establishment or who belong to a particular community. The incident in Khargone which follows immediately after stripping of journalists in a police station in Madhya Pradesh and statements by ministers that those who throw stones will have their houses turned into stone leads one to doubt if in Madhya Pradesh any of the three Constitutional principles mentioned at the beginning of this article have any meaning.
Mihir Desai is a practicing senior advocate at the Bombay High Court and the Supreme Court of India