In today’s interpretation of the law in some States, the tempter’s provocation is overlooked and the tempted found guilty

SHAKESPEARE, speaking through Angelo in Measure for Measure, asks a pertinent question that resonates even today: “The tempter or the tempted, who sins most?” In the law on sedition, the Supreme Court of India made it clear that the one inciting violence is the guilty person. Ergo, the tempter sins most. In today’s interpretation of the law, it does not matter whether there is incitement or not; a charge of sedition will be slapped anyway if the powers that be do not ‘like’ what somebody has said or tweeted.

BULLDOZER JUSTICE

But the law gets more complicated when a fringe but influential national spokesperson incites violence by saying something offensive about the Prophet. The naya law seems to overlook the provocation of the tempter, but finds the tempted guilty. The guilty are then punished by a common judge, jury and executioner and also given double engine punishment: arrest, followed by arbitrary and retributive demolition of their residential accommodation, through what is now commonly referred to as bulldozer justice. I prefer to call it bulldozer injustice.

There are adequate provisions in the Indian Penal Code for the police to act against any violator, but the law seems to be inapplicable if the tempter is an influential fringe or well connected. So, a call for golimaro is ignored; senseless lynching invites garlands for the accused; a call for genocide is a bit of a nuisance. Is it then surprising that something offensive said about the Prophet invites only a light rap on the knuckles? If that is deemed to be punishment enough, then the exercise of a fundamental right to protest by thousands of people across the country is understandable. Persons accused of far lesser offences have had charges of sedition foisted on them. The less fortunate have been subject to anti-terror laws such as the Unlawful Activities (Prevention) Act, while the unfortunate are imprisoned under the National Security Act (NSA) or the Public Safety Act.

WHEN THE STATE ACTS

Is there a constitutional right to resort to violence during a protest? Absolutely not. The Constitution of India permits only a peaceful assembly without arms. Stones or brickbats can be weaponised and are a no-no. Violence in protests cannot be justified under any circumstances, whatever the cause. A light rap on the knuckles to the tempter does not warrant the use of a knuckle duster by the tempted.

But, as they say, violence begets violence. And so, the State comes down on the violent protesters with a heavy hand and the apocryphal iron fist made popular a couple of years ago by a learned Supreme Court judge. The state then uses its machinery, literally, in the form of bulldozers to demolish the residential premises of those believed to be indulging in violent protests. The long arm of the law is employed to identify the protestors and a list is prepared of those who need to be ‘taught a lesson’. Remember, a similar stratagem was used in 1984 following the assassination of Indira Gandhi. Back then, we called it genocide, while today we call it ‘teaching a lesson’.

FUNDAMENTAL RIGHTS

Some of the violent protesters own a house or a shop or a stall but many do not. Activist Javed Mohammad of Prayagraj, Uttar Pradesh, was unlucky enough that his wife owned a house. So, like a chapter in the lesson to be taught, he was first jailed and then her house demolished through a constitutional violation. Ironically, two judgments of the Supreme Court from Uttar Pradesh consider shelter as a fundamental right. In UP Avas Evam Vikas Parishad vs Friends Cooperative Housing Society Ltd (1996) it was held that “The right to shelter is a fundamental right, which springs from the right to residence assured in Article 19(1)(e) and the right to life under Article 21 (of the Constitution)”. In Chameli Singh vs State of Uttar Pradesh (1996) it was held that “The right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right”. Those lucky enough not to have relatives owning a house will probably get brutally thrashed like the hapless victims of a lathi charge in a police station in Saharanpur, Uttar Pradesh, whose video has gone viral.

How does the state justify the constitutional transgression? It says, as reported, that Javed’s house was illegal and a notice to demolish it was served on him (or pasted on the wall) and he did not avail of the opportunity of a hearing granted as per law. It is difficult to believe the State for a variety of reasons.

AN ILLEGALITY

First, the state collected taxes from Javed for the so-called illegal construction. Was the illegality of construction condoned? If not, was not the State complicit in perpetuating the illegality and also earning out of it? Has any action been taken by the state against its complicit officials?

Second, the well-settled principle requiring State action to be just, fair and reasonable mandates, in the absence of any terrible urgency, another opportunity for Javed to appear for the hearing. Maybe he was sick or out of town. Why was this routine ‘another opportunity’ denied to him?

Third, Javed’s house was demolished on a Sunday which is a government holiday. Even in NSA cases, the Supreme Court excludes Sundays for dealing with a representation against preventive detention. It is good if the government works on holidays as well, but could not the benefit of a government holiday be passed on to Javed by an “efficient” government? Let us be realistic.

Fourth, the demolition order was pasted on the wall of Javed’s house on Saturday night and the demolition took place on Sunday morning, giving no time to him or his wife to challenge the correctness of the demolition order in a court of law or file an appeal. Is this just, fair and reasonable?

Fifth, the Delhi High Court decided a case in which the Uttar Pradesh police unlawfully whisked away two residents of Delhi and managed to have them sent to judicial custody for almost two months on no charges at all. The additional advocate general of UP admitted that the police officers concerned made false statements before the court, created false documents in the investigation and even before the special investigation team constituted to investigate the issues flagged by the High Court ( Teenu vs Government of NCT of Delhi) (2022). Clearly, the UP police have a rather unenviable track record. Facts and documents in Javed’s case may equally be manufactured. Sorry, but the demolition saga smacks of vendetta, legal and factual mala fides.

NEED FOR ACCOUNTABILITY

What is the solution? First, the State should adequately compensate Javed to enable him to rebuild his house. Second, it should give him an equal amount of compensation for the mental distress caused to him and his family.

Third, the officers concerned at all levels must be held accountable and punished enough to ‘teach them a lesson’. Accountability jurisprudence must take root in India and the culture of impunity banished. Fourth, disband the Uttar Pradesh State Human Rights Commission, a body that apparently sees no evil, hears no evil and does no good.

Conclusion: The tempter has achieved her purpose and the tempted can only feel sorry for themselves and say goodbye to the rule of law.

Justice Madan B Lokur, a former judge of the Supreme Court of India, is presently a judge of the Supreme Court of Fiji

Courtesy The Hindu