Four days after the Red Fort blast in the heart of India’s capital New Delhi, a set of controlled explosions shattered the silence in Koil village, Pulwama in the Union Territory of Jammu and Kashmir. By early morning, the family house of Dr Umar Nabi, the prime accused in the Red Fort blast, was reduced to rubble. It is alleged that no notice was served by the authorities nor was any court order obtained nor any kind of hearing granted. The impact of the demolition damaged adjoining structures of innocent neighbours while Dr Umar Nabi’s parents and siblings suddenly became homeless.
The irony was the house of an accused was destroyed by the state exactly one day after the first anniversary of the Supreme Court’s landmark judgment explicitly prohibiting such actions without due process. This is not the first time such ‘instant justice’ (some would say injustice) is being dispensed in our country.
The house of activist Afreen Fatima was demolished in Prayagraj (Allahabad) after her father, Javed Mohammad, was accused of masterminding protests over alleged anti-Islam remarks. Local authorities demolished the residence of Haji Shahzad Ali, ex-Congress leader, and other accused protestors in Chhatarpur (Madhya Pradesh) after they allegedly led a demonstration against a religious leader’s derogatory remarks against the Prophet ﷺ.
So why was this action by the agencies wrong? What signal does the government at the Centre want to send through such actions? Why is the judiciary silent on such an open violation of its orders? It is not easy to navigate and demand answers to these uncomfortable questions when the entire “mood” of the nation applauds such actions.
What the Law Actually Says
On the question of illegal demolitions, the judgment by the Supreme Court of India (13 November 2024) is quite unequivocal. The apex court stated: before demolishing any residential or commercial structure, authorities must serve prior notice, allow a minimum 15-day period for response, and grant a personal hearing before passing a final demolition order. The Supreme Court specifically warned that violation of its directions would lead to contempt proceedings and prosecution. The Court clarified further that the right to shelter is “an integral part of Article 21 of the Constitution” namely the fundamental right to life and personal liberty.
Demolishing homes of suspects or convicts without following due process was termed totally unconstitutional” and a violation of this most basic right. If we look at the timeline: Red Fort blast (10 November), Dr Umar Nabi identified as prime accused (12 November) and his house demolished (14 November) – it is almost impossible to believe that the SC’s guidelines may have been followed. In other words, vengeance replaced the due process.
The foundational principle of any credible criminal justice system is that the accused is presumed innocent until proven guilty in a court of law. If this principle is overlooked or abrogated then a civilized and just state is converted into a one where the ‘law of the jungle’ rules, where ‘might is right’ prevails and there is bulldozer and mob (in)justice. The presumption of innocence principle ensures that the coercive power of the state is exercised only after following procedures that are just, fair, and reasonable. It forces the state to remain a neutral arbiter and not become an avenging vigilante.
Criminal Liability Cannot Be Inherited
The Bharatiya Nyaya Sanhita (BNS) and its earlier version the Indian Penal Code (IPC) do not prescribe demolition of homes as a punishment for any crime, including terrorism. However, the law does provide for forfeiture (confiscation) of property in certain circumstances as a way of imposing a financial penalty. But forfeiture is not demolition. The objective of demolition is to inflict maximum suffering on those who live in the structure. Typically, it is the accused person’s family; either the wife, children or elderly parents and siblings who had no connection whatsoever to the alleged crime.
The law in India is absolutely clear about “guilt by association”. There is no offence of being related to an offender. In short, he/she has zero criminal liability even he/she is closely related to the accused. Criminal liability requires participation through direct action, conspiracy, abetment, or attempt. It is true that public sentiment or collective conscience does not sympathise with the relatives of any terror-accused. But constitutional rights cannot and should not become subservient to public sentiments and ‘mob mentality’.
Is Extrajudicial Punishment Serving its Purpose?
These extrajudicial punishments are justified by its proponents, saying, it serves as a deterrent to other potential terrorists and their supporters. This justification is wrong on several counts. First, if this policy was that good then definitely it would have yielded some positive results by now. Data suggests that these actions increase resentment among the general public inviting sympathy for the victims of these actions. The other argument is that if the government is so convinced about its efficacy and moral ‘correctness’ then why not confiscate all family assets, imprison relatives indefinitely and impose collective fines on entire villages? If somebody breaks the law, the answer cannot be to punish the person by ignoring the law. Ends cannot justify the means. Especially so in a constitutional democracy where the rule of law is supreme.
A Lonely Battle
India’s house demolition policy is inspired by Israel’s demolition of Palestinian homes. It is viewed as a form of collective punishment and condemned in international law. Collective punishment is expressly prohibited by Article 33 of the Fourth Geneva Convention. International bodies like the ICRC, UN agencies, and human rights organisations have consistently condemned punitive demolitions as a violation of justice. A major cause of worry is the muted response from much of civil society, media, and sections of the legal community in India.
In a climate of aggressive hyper nationalism and widespread Islamophobia, it is not easy to defend the rights of families of terror-accused persons. Labels such as “anti-national” or “terror sympathiser fly easily and are difficult to deflect. Those who love justice and want to see the rule of law prevail in our country must realise that condemning “demolition (in)justice” is not endorsing terrorism.
One must oppose both terrorist violence and unconstitutional state excesses even at the cost of waging a lonely battle and being frowned upon by society. We are reminded of the words of author George Martin who said, “People often claim to hunger for truth, but seldom like the taste when it’s served up.”