Urban Mirror

 Rule of law is the veritable life force of a vibrant functioning democracy. Any elected government is a government of all people and not just those who voted for them. Each institution draws its strength from the Indian Constitution and all citizens, all public authorities are duty bound to uphold the Constitution and establish rule of law in the country. Any tendency which seems to weaken rule of law must be resisted and nipped in the bud, writes former IAS officer Sunil Kumar

 In the last fortninght, I came across two particularly disturbing news items published in the Delhi edition of The Indian Express.

The first news item published on the front page of The Indian Express, dated 26th February, 2025 had the following headline:

IN MALVAN, MAHARASHTRA

Boy, his parents held, their shop razed after complaint over slogans during India-Pak match – Police: FIR after passerby, neighours confront family; MLA Rane hails action

The second new item published in the inside pages of again The Indian Express, Delhi edition, dated March 3, 2025 carried the following headline:

Madhi Yatra: Rane backs villagers over resolution to ban Muslim traders

What is particularly disturbing in these headlines? These appear perfectly normal and no different from scores of other headlines that one comes across everyday in different newspapers. Many readers may have missed them altogether.

But these are disturbing and they raise certain fundamental issues relating to governance in general and Maharashtra in particular and the very basic question as to where is rule of law in the country.

I will briefly state the context and then address the disturbing issues and trends one by one.

The first news stated that “A 15 year old boy was apprehended, his parents arrested and their scrap shop demolished by authorities in Malvan in Maharashtra’s Sindhudurg district after police said they had received a complaint alleging that the boy raised “anti-national” slogans during the India-Pakistan cricket match last Sunday.

According to the Superintendent of Police, a man heard the boy raising ‘anti-national” slogans while he was passing by and a fight erupted when the passerby and neighbours confronted the family. The boy and his parents were arrested. They have been charged under Bhartiya Nyaya Sanhita sections 196 (promoting enmity between different groups on grounds of religion), 197 (imputations, assertions prejudicial to national integration) and 3(5) (acts done by several persons in furtherance of common intention). Later the Malvan municipal council demolished the scrap shop – and, in the process, damaged a vehicle owned by the family – on the ground that the shop lacked permission.

It is further mentioned that the family moved to Malvan from Uttar Pradesh 15 years ago. Shri Nilesh Rane, MLA of Shiv Sena (Shinde), in a post on X, alleged that the “scrap dealer made anti-India comments”.  Promising to “ensure he is eventually thrown out of the district”, Rane said “for now we have destroyed his scrap business”. He also went on to thank the Malvan municipal council and police for taking “immediate action”.

In the second news item it is mentioned as to how the gram panchayat of Madhi village in Pathardi taluka of Ahilyanagar (formerly Ahmednagar) district in Maharashtra had passed a resolution banning Muslim community traders from setting up stalls during the annual Madhi Chi Yatra which began on February 28 and the same had been stayed by the BDO of Ahilyanagar who had, after inquiry, ruled that the resolution of the Gram Sabha was “unconstitutional”. The meeting of the Gram Sabha lacked quorum as per the government guidelines and 16 of 116 signatures on the resolution could not be confirmed during inquiry. There were other deficiencies in the resolution and therefore the BDO deemed it ‘unconstitutional’ and stayed its operation.

This appears perfectly as per rules. As soon as the Ahilyanagar Zila Parishad CEO learned about the Gram Sabha resolution and the controversy, he had ordered the BDO to conduct an inquiry into the validity of the Gram Sabha’s resolution. As mentioned above, enquiry was conducted and action taken as per law.

However, the twist in the tale is what followed. First the District Guardian Minister Radhakrishna Vikhe Patil supported the decision of the Gram Sabha. Next, Maharashtra Minister for Fisheries and Ports and BJP leader Nitesh Rane questioned the BDO over his decision to stay the resolution passed by Gram Sabha of Madhi Gram Panchayat. He is quoted to have said during his visit to Ahilyanagar:

“The BDO should remember that Hindutva sarkar is in power in Maharashtra.Though the resolution passed by the Madhi gram panchayat has been stayed by the BDO, I urge the villagers to again pass the resolution. If all villagers sign the resolution, then how will the BDO reject it”. He is further quoted as saying that “The hardcore Hindutva supporters have been awakened in the village. The Gram Sabha’s decision will provide direction to the nation. If the Hindu religion is challenged, then such a decision will be taken across Maharashtra.”

Without getting into the details of the story behind the said resolution passed by the Gram Sabha, which has also appeared in The Wire^[i], it needs to be mentioned that according to Anthropologist Robert M.Hayden, the 700 year old Kanifnath shrine in Madhi Gram Panchayat is revered and worshipped by both Hindus and Muslims. In his book Antagonistic Tolerance: Competitive Sharing of Religious Sites and Spaces, Hayden has written that

“For Muslims, it is the dargā of the Muslim saint Shah Ramzan Mahi Savar Chisti, while Hindus say it is the samādhi of the Hindu saint Kanifnath. Note that the saint is the same historical person, but with two religious identities, and neither group acknowledges the identity used by the other as valid.”

The festivities at the shrine is primarily led by nomadic communities and the small Muslim traders, who visit and set up stalls, are primarliy sellers of plastic toys, kumkum and other items that are commonly seen in village fairs across the country.

Without going into the specifics of these cases (which are sub judice), the disturbing issues and trends that I seek to examine are as under:

1. Have the Malvan Municipal Council authorities conformed to the directions in the matter of demolition of structures laid down by the Supreme Court in it’s judgment delivered on 13th November 2024 in Writ Petition (Civil) No.295 of 2022 with Writ Petition (Criminal) No. 162 of 2022 and Writ Petition (Civil) No. 328 of 2022?
2. Is the action of the Gram Sabha of Madhi Gram Panchayat banning Muslim traders from participating in an annual fair constitutional?

• Are the public statements of MLAs and Ministers in conformity with their pledge to uphold the Constitution?

As mentioned above, the authorities of Malvan Municipal Council in Sindhudurg district had promptly demolished the scrap shop of the father of the minor boy accused of raising anti-national slogans. In the process, a vehicle belonging to the family had also got damaged. Was any notice served? Was the due process of law followed before carrying out the demolition of the allegedly illegal structures which would have been there for years? From the facts mentioned, the answer would be in the negative.

The Supreme Court has laid down pan-India guidelines in the matter of demolition of structures in its judgment delivered on 13th November, 2024. These are as under:

1. A written notice will be served to the owner-occupier of the house prior to the demolition through a registered post.The notice will be served either fifteen days prior to the demolition, or according to the time given by the municipal law, whichever comes later. The time period will start from the date of receipt of the notice by the owner-occupier.
2. The notice would be attached visibly on the outer portion of the building or structure which is to be demolished.
3. The notice should contain – (a) nature of the unauthorised construction, (b) the grounds, and specific violations for which demolition is being ordered (c) a list of the documents that have to be given alongside the reply, (d) date on which personal hearing is fixed (e) before which designated authority hearing will take place.
4. The collectors office and the district magistrate should be emailed the information right after a notice is served. This will ensure that no ‘back-dating’ of notices takes place. The office of the collector and district magistrate should produce an auto-generated reply stating that they had received the information.
5. The collector or district magistrate should designate a local officer who will be provided an email handle. All municipal and local authorities handling building regulations and demolitions must be informed of this designation within a month of this order.
6. Every municipal local authority has to establish a digital portal which would host details about service, posting of notice, reply, show-cause notice, and the order passed. This portal has to be put up within three months from date of order.
7. The designated authority will give a personal hearing to the owner-occupier. After the hearing, a final order will be passed, which must contain the contentions raised in the notice and the authority’s reasoned conclusions on them. It will also state whether compounding or partial demolition of the property was an option, and what reasons led them to conclude that the “extreme step of demolition [was] the only option available.”
8. The final order of the designated authority can be scrutinised by appellate authority. Significantly, no demolition can take place for fifteen days starting from the date of the final order (which will be displayed on the digital portal).
9. The owner-occupier will be given the chance to remove or demolish the illegal property by themselves within a period of 15 days after receiving the notice. The demolition will be allowed after 15 days if the owner has not removed the property by himself, and compounding or partial demolition is not possible.
10. Even then, before the demolition, a detailed inspection report has to be prepared by the concerned authority, and signed by two Panchas (witnesses).
11. The demolition will be videographed and a report shall be prepared by the concerned authority. It should contain the list of police and civil personnel who participated in the demolition. The report would be forwarded to the Municipal Commissioner by email and then uploaded on the digital portal. The video recording will be preserved.

However, it seems that the municipal authorities of Malvan Municipal Council have not adhered to any of the directions laid down by the Supreme Court and are liable to be hauled up for contempt of court, held responsible for the “restitution of the demolished property” and bear “personal costs.” (It is presumed that the State Government would have issued circular to all District Magistartes and local authorities informing them about the Supreme Court directions.) At present the Supreme Court is hearing another matter pertaining to Uttar Pradesh which relate to flagrant violation of the directions of Supreme Court.

But the moot question is how many people can fight cases upto Supreme Court. Their number would be just a handful. It is futile to expect a poor scrap dealer, who also happens to be a migrant from Uttar Pradesh and presently under judicial custody and facing criminal cases under stringent sections of Bharatiya Nyaya Sanhita, to take on the might of the State and approach the Supreme Court. The prompt action by the police and the municipal authorities (for which they were profusely thanked by the local MLA) seems, in all likelihood, a meek surrender to pressure exerted by the MLA and his supporters. It seems the police and municipal authorities are banking on the ruling party in the State to ‘protect’ them and ‘bail’ them out should they face the ire of the Supreme Court. It’s a calculated risk that local authorities are beginning to take in different States of the country. The unfortunate end result is that wilful ‘cocking a snook’ at the higher judiciary would end up discrediting and weakening all institutions and striking at the root of ‘rule of law’!

Next, if we take the resolution passed by the Gram Sabha of Medhi Gram Panchayat in Ahilyanagar district of Maharashtra, it is evident that it is ‘unconstitutional’. Gram Sabha is a constitutional institution in so far as it finds specific mention in Part IX, Article 243 (b) of the Constitution. It is the only body where all voters are members of the Gram Sabha and it is the supreme body in the Gram Panchayat. Detailed provisions regarding convening meetings of Gram Sabha, finalizing its Agenda, quorum of the meeting etc. are laid down in the State Panchayati Raj Acts and Rules. Not even the legislature can make any law which violates the provision of the constitution. By exercising it’s power of judicial review, the High Court and Supreme Court are empowered to examine the legal validity of any law and declare such laws, in full or in part, ultra vires, it they are found to be violative of the constitution. Hence, Gram Sabha, with no legislative powers, cannot pass any resolution which violates rights guaranteed to all citizens by the Indian Constitution. Right to free movement and practise trade in any part of the country is a constitutional guarantee and cannot be taken away by any authority. However, this did not deter some elements to call for boycott of Muslim traders in the Kumbh Mela area in Prayagraj in Uttar Pradesh recently. However, no action seems to have been taken against anyone of them.

The response and action of the CEO Zila Parishad and the BDO of Ahilyanagar Taluka is in sharp contrast to those of authorities in Malvan in Sindhudurg district. This stands out as they withstood the pressure exerted by the District Guardian Minister as well as the Fisheries and Ports Minister. The public response of the Ministers appear to be more in the nature of keeping their supporters in good humour and keeping the communal cauldron boiling in the State as they know well that both the CEO and the BDO took the right decision. Even if all members of the Gram Sabha pass such a resolution again, it would still remain ‘unconstitutional’! 

However, a more important issue that arises from the public utterances of the State Ministers and the MLA relates to violation of the pledge they have taken as a Member of the Legislative Assembly and a Minister in the State Government to   bear true faith and allegiance to the Constitution of India as by law established and  uphold the sovereignty and integrity of India. As a Minister they have additionally also sworn to do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will^[ii]. Seen in this light, exhorting the villagers to pass ‘unconstitutional’ resolutions in the Gram Sabha appears to be violating the pledge taken by them as Ministers and MLAs. This is not a welcome situation at all.

It is grimly ironical that when public servants like Ministers and other elected persons and bodies flagrantly violate the highest law of the land, the Constitution of India, with contempt and ignorance, the ruling regime piously claims to celebrate Constitution Day on 26 November. And MPs across political parties who make speeches in Parliament about the Constitution on that occasion never think of leading from the front from amidst the people to safeguard and uphold constitutional behaviour. Bulldozing justice, bulldozing the rule of law and bulldozing the fundamental rights of citizens by the state, with impunity, has become the order of the day.

Rule of law is the veritable life force of a vibrant functioning democracy. Any elected government is a government of all people and not just those who voted for them. Each institution draws its strength from the Indian Constitution and all citizens, all public authorities are duty bound to uphold the Constitution and establish rule of law in the country. Any tendency which seems to weaken rule of law must be resisted and nipped in the bud.

(Sunil Kumar is a Visiting Faculty in Gokhale Institute of Politics and Economics and a former Civil Servant. Views expressed are personal.)

HYPERLINK “”

References

^[i] In Maharashtra, a Gram Sabha Has Illegally Passed a Resolution to Boycott Muslim Traders https://thewire.in/communalism/maharashtra-kanifnath-madhi-gram-sabha-muslims-resolution

^[ii] Third Schedule of the Indian Constitution – [Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]* Forms of Oaths or Affirmations