The right to property

The demolition of illegal structures – in Ulhasnagar at least – has been stayed for the next 18 months by the Bombay High Court.  As the court observed, the state’s decision to push through an ordinance allowing regularization of some of the illegal constructions, which in turn compelled the court to grant a stay on demolitions, was akin to law makers joining sides with law breakers.  

<>Fortunately, the situation does not appear to be that bad in the case of Delhi.  The state government has refrained from pushing through any such ordinance.  And the Delhi High court has already decreed that

(i)                  The Delhi Municipal Corporation (DMC) should put up on the website a list of all illegal structures;

(ii)                Instead of adopting a pick-and-choose policy, the DMC should begin with demolishing the irregular structures erected by the powerful first (read the politicians and the corporators);  and

(iii)               Submit before the court an action taken report on the measures initiated against the officers of the DMC who allowed – through acts of commission and omission – these illegal structures to come up.

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The first is meant to prevent municipal corporations from pretending that the problem of demolishing illegal structures is a lot greater than it actually is (in Delhi the Corporation claimed that over 70% of the buildings in that city were illegally constructed and therefore demolishing all of them would be infeasible).  The measure is aimed at scotching hopes that the staggering size of the numbers involved would prevent the courts from actually ordering the demolitions to take place.  The second is aimed at ensuring that the powerful no longer benefit, and in turn allow others to benefit, from illegal acts.  Only then will it be possible for the letter of the law gain more respect.  And the third would ensure that the guilty (from the executive arm of the government) do not go unpunished.  <> 

Unfortunately, till the time of writing, the Bombay High Court has not insisted on all the three steps in respect of the Ulhasnagar demolitions.  By granting a stay for 18 months on demolitions, it may have well allowed more cover-ups to take place, more justifications that could be used to escape demolition, and more paperwork aimed at protecting key executives of the Ulhasnagar Municipal Corporation (UMC) who might have colluded with the powerful in permitting illegal constructions.  The brazenness of the UMC can be gauged from the instance where a senior official of the UMC was removed from his post, but was not dismissed on the grounds that there was “no proof that he had taken bribes”.  Are incompetence and gross dereliction of duty not cause enough to warrant a dismissal; even if charges of abetment of abetting criminal action are not levelled against the officer? Will the unholy combination of the elected and the executive continue to make a mockery of the law? <> 

Moreover, the entire issue of illegal structures coming up raises an equally serious concern.  It raises the spectre of a state government not committed to any citizen’s right to property, so clearly and unambiguously guaranteed by the Constitution.  This right is one of the pillars of democracy, and is meant to ensure that any person is allowed to own and even preserve the value of a property that he has obtained through legitimate means. <> 

When I purchase a house, I am willing to pay a price for it because it is what I want.  When it is in an attractive area, or conveniently located, I am willing to pay a premium for acquiring that piece of real estate.  Conversely, when someone tries to break the windowpanes of my house, I object, and even call up the police, because the law is supposed to protect my property rights.  <> 

Moreover the right to property is also meant to protect the value of the property.  Hence, someone smearing mud on the outside walls of my house commits an offence. Likewise, when someone puts up a hut outside my house, I demand that it be removed, first because it is illegal and also because it would destroy the value of my property. And if the police and the civic authorities do not protect me in ensuring that there is no wanton destruction in the value of my property, I should have the right to lodge a complaint against the civic authorities and the police  with other senior officials in the government.  <> 

Yet, if the government does not pay heed to my entreaties for help, two things ought to happen:

(i)                  Either my property rights should be restored to me – including the sanctity of the surroundings of my real estate – or the government should compensate me for any loss of the hypothetical value of my property; and

(ii)                Those who are guilty of any acts of commission and omission (dereliction of duty is a serious offence) need to be punished, for they have willy-nilly abetted the erosion of property rights.

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The only way this can be ensured is when the government creates an effective machinery to take up cases where such rights have been trampled upon.  It is the absence of such a machinery which makes people rush to the courts.  The more the cases in the courts, the less confidence do people have in the redressal machinery set up by the government.  It is at such times that the elected (both politicians and the corporators) and the executive (officials of the civic administration, including the police) conspire to render existing laws ineffective.  And they have got away with it for so long, because they have learnt how to prevent the courts from adjudicating matters quickly enough.  <> 

People know what to do when a court decision goes against them.  They either accept the judgement, or go into appeal to the next higher authority. But when there is no decision, it benefits only the criminal.  The complainant eventually gets weary, as do the witnesses.  And such delays sap the very vitality of any society. That is why, a speedy judicial resolution is critical to the preservation of value-systems in any society. <> 

But then, that would take away the biggest unfair privilege politicians and bureaucrats have – of ensuring that the courts do not adjudicate quickly.  Unfortunately, for decades, the politicians and other powerful people have enjoyed a vested interest in ensuring that these rights are not protected except when the rights of their own friends and relatives are threatened.  But that is how, over the past few decades, the poor have begun to subsidise the rich, and not the rich subsidising the poor.  And that is a matter that should get dealt with in another column.