Bulldozing the law and the Constitution

Bulldozing the law and the Constitution

Subject :Polity

Section: Constitution

Context: The recent Nuh Violence.

What was the issue:

• After the Nuh violence the demolition of dwellings and business establishments of people who are accused in criminal cases especially offenses having communal sensitivity were carried out without following the procedure as established by law.
• The Punjab and Haryana High Court made a rare interference by taking judicial notice suo motu and stayed the demolition drive.
• The High Court’s question whether an exercise of ethnic cleansing is being carried out by the State brings us to the heart of the issue.

What is ethnic cleansing:

• Ethnic cleansing is the systematic forced removal of ethnic, racial, and religious groups from a given area, with the intent of making a region ethnically homogeneous.
• Along with direct removal, extermination, deportation or population transfer, it also includes indirect methods aimed at forced migration by coercing the victim group to flee and preventing its return, such as murder, rape, and property destruction.
• It constitutes a crime against humanity and may also fall under the Genocide Convention, even as ethnic cleansing has no legal definition under international criminal law.

What is genocide:

• The United Nations first defined genocide in 1948 in the Convention on the Prevention and Punishment of the Crime of Genocide. The treaty outlines five acts that can constitute genocide if they are done “with the intent to destroy an ethnic, national, racial or religious group”:
  • Killing members of the group
  • Causing serious bodily or mental harm
  • Deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part
  • Imposing measures intended to prevent births
  • Forcibly transferring children
• To qualify as genocide, the actions must be done with intent to eliminate an entire group of people.Without provable intent, a group or individual can still be guilty of “crimes against humanity” or “ethnic cleansing” but not genocide.
• The first person found guilty of genocide was the former mayor of Rwanda’s Taba commune in 1998.

What Indian Law states:

• Ethnic cleansing is not defined by the Indian Penal Code or international law.
• Its first use is attributed to a UN appointed Commission of Experts (1992) chaired by Prof. Cherif Bassiouni, a father figure in international criminal law, mandated to look into the war crimes in former Yugoslavia.
• Despite the lack of statutory recognition, any such subversive act is grossly inimical to the constitutional guarantees under Part III of India’s Constitution. Hence, the concern and judicial intervention under Article 226 of the Constitution of India.

What is the law and procedure:

• Article 21 given in the constitution guarantees the ‘Protection of Life and Personal Liberty’ and it is one of the most important fundamental rights, that no person should be deprived of his life and personal liberty by anyone except according to the procedure established by law.
• Right to life includes the right to live with dignity, health, pollution-free environment
• In case of MANEKA GANDHI V. UNION OF INDIA a seven-judge bench observed that ‘personal liberty’ under article 21 comprises of various rights such as it must be as per the procedure established by law and it must be according to Article 14 which is equality before law and equal protection before the law and within the territory of India it even says that no person is above law and it should not be arbitrary.
• The Supreme Court had also expanded the scope of procedure established by law by ruling that such procedure has to be “fair, just and reasonable, not fanciful, oppressive or arbitrary”, thereby introducing the principle of “procedural due process”.
• There are many statutory bodies established by the Government of India like autonomous public body National Human Rights Commission of India and under this, there is an act known as Protection of Human Rights Act 1993 and it is responsible for the protection and for giving a recommendation of human rights.
• But the contradictory thing is that ethnic violence contradicts this right given under article 21 because ethnic cleansing is the removal of the particular minority community from a particular geographical area.

The rule of law or rule by law:

• While the rule of law is declared a basic feature of the Constitution, rule by law is the antithesis of all that is represented by rule of law.
• The rule of law is a government run by law, not men.
• The roots of the idea of a rule of law can be seen in Article 39 of Magna Carta (1215) that declares that “No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.”
• This civilisational journey has since then found its reflection in Article 21 of Indian constitution and had its contours expanded by the Supreme Court. This progressive journey gets barbarically reversed when rule by law comes into play.
• Rule by law is when the law is used as an instrument of suppression, oppression and social control in the course of implementing a political agenda. For e.g the administrative act of demolishing dwellings and buildings without issuing notice and hearing the affected, to further selective social control necessarily warrants judicial interference.