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Do we have two legal systems prevailing in the country? The Supreme Court actually said that India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.”
It is an open secret that there are several illegal constructions in and around Delhi, as indeed in other parts of the country. As far as Delhi is concerned, Chief Minister Arvind Kejriwal is reported to have stated that more than 80% of Delhi can be called illegal and encroached upon, and if the recent demolition drive continues, an estimated 63 lakh people will be rendered homeless.
I believe most of those rendered homeless would be poor and indigent because the municipal authorities do not have the courage to touch the rich and resourceful or the politically powerful and influential. Consider a few examples from the recent past where buildings should not have been allowed to come up, but having come up, they should have been demolished much before tragedy struck. Unfortunately, no action was taken because those associated with these buildings were either rich or powerful or politically influential, or all three.
The Uphaar Cinema tragedy of 1997 continues to haunt us even today. June 13, is the 25th anniversary of the incredible catastrophe, and we will again recall the heart-wrenching loss of 59 lives and the injuries suffered by more than a hundred. Quite understandably, the families that lost their loved ones have not yet been able to get over the nightmare. Sure, the owners and those that allowed the tragedy to occur have been punished, but that is hardly a solace.
My question is: what of the municipal officials under whose very nose that tragedy occurred? Why did they not enforce the law? Have they been suitably punished for their criminal negligence? Nobody knows and, in all probability, they would have got away rather lightly. The Uphaar tragedy is a classic instance of the absence of an accountability jurisprudence which, sadly, does not exist in India.
The absence of accountability jurisprudence has long-term consequences. Safety lessons are not learnt. Even if some lessons are learnt, they are quickly forgotten, and remedial steps are not taken. Remember, a stitch in time saves nine. The consequence is that tragedy repeats itself in different ways and the cycle continues. Let’s consider a few more examples.
An ashen history of fire tragedies in Delhi
A massive blaze in the Bawana Industrial Area in January 2018 left 17 people dead and several others with burn injuries. The factory owner was arrested but later bailed out. Were any lessons learnt from the Uphaar tragedy, and were any corrective or remedial measures taken to ensure that the Uphaar blaze does not recur? Obviously, the municipal and other statutory authorities did not do their job, else the Bawana tragedy would not have taken place. The question is why have these authorities not been held accountable for their inaction? We will never know.
Barely a year later, another fire took place at Hotel Arpit Palace in the crowded Karol Bagh. Again, 17 lives were lost with another 35 injured. Was any action taken against the municipal officials for their inaction?
The same year, Sadar Bazar in Delhi witnessed a massive fire at Anaj Mandi in December 2019. This resulted in the death of 43 people, and 67 severely injured. Those who died were migrant labourers from Bihar and Uttar Pradesh, now reduced to statistics. The building was home to illegal manufacturing units. It had no fire clearance. It housed combustible materials, and it was a tragedy waiting to happen. The exit was clogged with materials, making it difficult for the labourers to escape the conflagration. Windows were sealed, leading to hazardous smoke and carbon monoxide, ultimately causing asphyxiation. The building owners and their associates were arrested, but later released on bail. What action was taken against the municipal authorities and the fire clearance authorities who allowed these violations to take place and continue? Are they not to blame as much as the owners of the building and their associates? Are they not accountable, or are they entitled to get away virtually scot-free only because they were possibly bribed to keep their eyes closed – see no evil?
There are many such instances, and a team from the student-youth organisation Collective Delhi has done well to document these tragedies and discern a pattern of criminal negligence. Primarily, huge buildings come up without any sanctioned building plan. These constructions are not under the cover of darkness, but in broad daylight and carried out over a few months. What were our municipal officials doing during this period? The buildings did not have any clearance from the fire department, and shockingly, some did not even apply for a clearance, resulting in a crematorium for the living. Basic fire-fighting measures were usually missing; necessary equipment was not available, such as fire extinguishers and a fire escape staircase; the building had a single entry or exit, and so on.
The recent Mundka fire is the latest in this series of tragedies. Industrial manufacturing activity was carried on in two floors of a four-storey building. The building had no fire clearance or fire fighting equipment. Most of the workers were women, and they were trapped in a blaze that left at least 27 dead, some so badly charred that identification has become difficult and DNA tests are being conducted to identify the dead.
Reports suggest that the building had a single entry or exit. How was a four-storey building with one entry/exit allowed to come up? Having come up, were any steps taken to ensure compliance with building laws and firefighting laws? The answer is pretty obvious – rich, powerful, and perhaps politically influential owners or building contractors.
The owner of the ‘factory’ has been arrested, but one can be sure that they will be bailed out very soon. The owner of the building is on the run, and he too will get bail after he is caught and arrested. What of the officials? Some of them have been suspended – that’s it.
After all, only 27 people died, including 21 women who were paid less than half the minimum wage, thereby encouraging contemporary slavery. It is this soft pedalling of criminal liability that breeds a culture of impunity, and we are silent witnesses to this travesty. So much for accountability.
Bulldozer justice in Jahangirpuri
Contrast these tragedies caused by inaction against the illegal and unauthorised constructions owned by “the rich and the resourceful” with the bulldozer justice introduced in our legal lexicon by the Executive in Jahangirpuri against “small men without resources”. Without notice and without warning, bulldozers arrived and smashed the house, thhela or shop/stall of these small men and women.
Ask yourself: would they have been subjected to this activist injustice if they were rich, powerful or politically influential? Are the laws different for two sets of Indians? It seems that being poor is itself a crime. Ask yourself how you would feel if one day you saw a bulldozer outside your house, and a few minutes later it starts demolishing it with your goods and personal effects still inside.
Notice was not given to the hapless victim of State violence in Jahangirpuri. Clearly, the demolitions were arbitrary. But, even after the Supreme Court intervened and granted an injunction against the demolition, the authorities had the gumption to continue their heartless activity. Also, how can the municipal authorities justify smashing a thhela or a cart, which is moveable property? The owner could have simply been asked to take it away. But the municipal authorities know that “small men without resources and capabilities” cannot put up a fight, unlike the “rich and the resourceful and those who wield political power and influence” who do not need to fight.
For the small person, it is not easy to reboot one’s life or build a house all over again. Consider also the mental health aspect. The distress and trauma can leave a scar that will not go away easily. But, do our bulldozer-happy officials care? They know they are not accountable, regardless of whether they let a large unauthorised fire-trap structure remain, or demolish a small, unauthorised structure. So, why should they care?
Justice must be even-handed, but I am afraid we are witnessing a great churning which does not do the rule of law any good. Inaction is condoned even if there is a loss of life, and high-handed action is acceptable even if it means loss of livelihood and shelter.
Compensation is not the only answer – it is the easiest answer.
The solution lies in making our officials accountable to the Constitution and the law, as much as the builder or owner of any unauthorised construction. Until and unless officials are punished for their inaction, negligence or criminal negligence, deaths will occur and we will be rudely awakened every once in a while. On the other hand, if officials are not punished for their high-handed and arbitrary actions, we will encourage a culture of impunity.
Accountability jurisprudence must take root in our justice delivery system so that the culture of impunity that our officials have grown up with gets obliterated from our lexicon. This is the very least we can do after so many have died a blazing death, and so many rendered homeless with the advent of bulldozer justice.
Since our legal luminaries are busy rewriting laws, it might be a good idea to rewrite them in a manner that gives power in the hands of the poor and marginalised sections of our society, by making brazen officials accountable to the Constitution and the law, and by making the rich, powerful and politically influential also accountable to the law. Only then will the constitutional guarantee of the right to life and the right to live with dignity have any meaning for “small men [and women] without resources and capabilities to obtain justice or fight injustice.”
Justice Madan B. Lokur is a judge of the Supreme Court of Fiji. He is a former judge of the Supreme Court of India. He is also former Chief Justice of the Andhra Pradesh high court and the Gauhati high court, and former judge of the Delhi high court.
This article first appeared on The Leaflet and has been published here with permission. Read the original here.