Form – The Leaflet

In the context of the police violence during the eviction drive last week in Darrang, Assam,ATREYO BANERJEEandSHARDHA RAJAManalyse the continued systemic discrimination and violence meted out to marginalized communities in Assam leading to forced evictions done extra-judicially without following the procedure established under law.

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IN his book The Wages of Impunity, human rights activist K.G. Kannabiran wrote on the interconnectedness of power, law and brutality, focusing on the post-colonial States key role in legitimizing and enforcing brutality against its own people. As Kannabiran points out, such brutality is routinized through collective State action, encompassing the tacit approval of the legislature and the judiciary, whilst being enforced by the executive. State-sponsored carnage is justified on the grounds of public order and national security: ambiguous terms which allow ample discretion.

Theviolence which has engulfed Assams Darrang districtis a stark example of the state acting with impunity and aggression against its own people on spurious grounds. Yet, it is not surprising, given that the Bharatiya Janata Party (BJP) in itsmanifestoleading up to the assembly elections in Assam earlier this year had promised to combat illegal encroachments.

Using the term land jihad, ostensibly modified from the more popular love jihad, the BJP furthered the narrative against Muslims of Bengali speaking origin that these people are illegal squatters upon the land which is therightful property of the indigenous Assamese communities.

Also read: The Growth Strategy of BJP in Assam

Videos and photos of photographer Bijoy Shankar Bania pummeling the near lifeless body of Moinul Haque, who ultimately succumbed to injuries sustained due to police firing, highlight the impunity of the State in facilitating a regime of violence and displacement in Assam. The murders of Moinul Haque and the twelve-year-old child,Sheikh Farid, are a result of the state governments attempts to commence a community farming project known as the Garukhuti Project to provide livelihood to indigenous youth.

The morality of the Garukhuti project, similar to all development projects which induce displacement, rests on the argument of public good. Such displacement is advertised asnecessaryfor the good ofall, and relies on a perverted idea of legality which neglects the fundamental principle of rule of law by contravening legal procedures.

In fact, abrief study of landused for development projects shows the disproportionate impact of governments land acquisitions, on the most marginalized communities. This is supported by evidence from civil society organisations in2018and2019.

The enormity of the States power to disenfranchise communities is perhaps best witnessed through the slum eviction drives in post-independence India. From the evictions inTurkman GateandOkhla Industrial Area, to the more recenteviction of millions from Khori Gaon, it is clear that such evictions which rest on reclaiming public land, are prejudiced, unjust and inequitable.

Also read: Eviction or resettlement: permanent dilemma in Assam

In the context of Assam, such disenfranchisement is worsened by the question of belonging, which is an open sore on its body politic. Being one of the territories which was ceded to the colonial government after theFirst Anglo-Burmese War, Assam has been home to a multicultural and multi-ethnic group of people.

Due to the lucrative tea plantations, large numbers of British Indias subjects were transported to Assam and indentured to work under grossly exploitative conditions. Eventually, these people settled around the Brahmaputra River, making the riverine islands (also known as chars)their temporary homes.

These homes weretemporary because each year during the torrential monsoons, these islands get submerged leaving their erstwhile occupants homeless.

Since the residents of thecharsare religious and ethnic minorities in Assam, they face multiple oppressions first, the legacy of otherization by the State through its imagination of them as foreigners,which leads to their illegal and arbitrary detention within detention centres in Assam. This oppression is further exacerbated by the National Register of Citizens, the National Population Register and the Citizenship (Amendment) Act.

Also read:NRC busts the myth around massive illegal migration into Assam

Second, they also face displacementon account of the frequent floodingand submerging of their homes. Therecent eviction driveat the Dhalpur village in Darrang by the state government of Assam,which resulted in the murder of Haque and Farid, is a hybrid oppression inflicted on this community for belonging to the Bengali-speaking Muslim community, and for residing in areas susceptible to natural disasters.

It is in this context that the alleged illegality of Dhalpurs residents must be measured. At its crux, it is a property dispute. However, seemingly neutral laws regularly impact marginalised communities disproportionately, and/or are implemented with greater vigour against certain groups, as is evident from the instances of development-induced displacement discussed earlier. Further, even for questioning illegal occupation/residence of Dhalpurs people, the State is obligated to follow a procedure established by law.

Dhalpur was categorized as professional grazing land belonging to the government. Official reports suggest around800 peoplehave been evicted in the current eviction drive, whereas the real numbers could be around 20,000,if not more. Multiple news reportssuggestthat the people being evicted were served with noticesmerely a few hourspriorto the eviction.

Even if one assumes that the persons being evicted were indeed illegal squatters on government land, the ensuing eviction must be done following the procedure established by law. This would entail a fact-finding exercise to gauge whether a person is illegally encroaching upon the said land, or has abona fideclaim upon that land. Although the Chief Minister of Assamhas stated that the eviction was not done overnight, and discussions were on for four months, such statements belie reality as it would imply that at least 800 of the evicted persons were duly served with notices, and found to have nobona fideclaim on the land.

In doing so, the state government is following a summary eviction procedure, under Rule 18 of theSettlement Rulesmade under theAssam Land and Revenue Regulation, 1886.

Initially, there were two routes available to the government to evict persons in accordance with the Land Revenue Regulation. The first route was under Rule 18, as per which the deputy commissioner is empowered to summarily evict a person who has encroached upon land that has previously been reserved for the grazing of village cattle or for any other public purpose. However, a person cannot be evicted or directed to vacate the land if they have abona fideclaim over the land. Rule 18 also mandates a publication of notice to provide the illegal encroacher with 15 days time to vacate the land.

The second route available to the government was to file a suit in a court of law against the person sought to be evicted, as the Land Revenue Regulation does not bar the government from initiating a civil suit. This means that a person sought to be evicted would have a larger bouquet of rights in the form of presenting evidence, filing written submissions, the right of revision and appeal, etc.

On the other hand, a person being evicted summarily under Rule 18 would have to establish the amorphousbona fideclaim over the land in a much shorter span of time in an arbitrary and ad-hoc procedure.

Due to there being two routes for eviction without any guidance on under which circumstance the draconian summary process would be chosen over instituting a civil suit, the Gauhati High Court, in its judgment in theBandhana Goalacase in 1971, found Rule 18 be in violation ofArticle 14of the Constitution.

Since summary evictions could not take place anymore, the Land Revenue Regulation was amended in 1971 and Regulation 154-A was inserted. This provided that any actions done under Rule 18 of the Settlement Rules would be deemed to have been validly done.

Therefore, government authorities could now evict with impunity as the person being evicted could not challenge that his eviction be tried in a civil court. Regulation 154-A would operate as a protective barrier to state actions of summary eviction in Assam since previously inBandhana Goala, Rule 18 was found to violate Article 14.

It is worthwhile to consider what could have been instead of protecting actions of summary eviction, the incumbent government could have amended the Land Revenue Regulation to do away with summary evictions completely, and a framework which would comprehensively determine a persons rights over a portion of land could have been formulated. However, the same would be anathema to a State intent on diluting the procedural safeguards available to an impoverished ethnic and religious minority in Assam.

Despite the prevalence of summary ad-hoc evictions, courts have read in certain safeguards which are aimed to protect persons being evicted under the Land Revenue Regulation.

InBharati Das vs. Jorhat Municipal Board(2020), the Gauhati High Court observed that whether or not a person has abona fideclaim over the land can only be decided after the person being sought to be evicted has been given a right of hearing. InBimal Das vs. State of Assam(2017),the High Court held that persons cannot be evicted under Rule 18 of the Settlement Rules without a notice being served upon them; once such notice is served, the persons sought to be evicted would have the liberty to take a stand that they have a legal right over the disputed land. This had been upheld by the High Courtearlier as well.

In other instances (such asDhunseri Petrochem vs. State of Assam(2017)) cases have been remanded to the deputy commissioner for not following the proper process of issuing a notice and providing a right of hearing. Pertinently, inShri Ngurohiezao Angami vs. Sub-Divisional Officer(1970), the High Court dealt with the question of whether the Government can evict persons by using force without them having any recourse to any law.

In unequivocal terms the court held that persons cannot be evicted by force, and usedArticle 21of the Constitution to arrive at this conclusion. In fact, in this case there was only a partial eviction the church, some houses and other common property of the community, despite being constructed on land which has been encroached upon, was not demolished.

The Supreme Court, inGovernment of Andhra Pradesh vs Thummala Krishna Rao(1982), has observed that prior to undertaking a summary eviction, the duration of occupation must be determined. In other words, a person who is openly in occupation of a property for an appreciable length of time,prima facieacquires abona fideclaim to the property.

Although decided in the context of the Andhra Pradesh Land Encroachment Act, 1905, this judgment offers valuable insights in the context of Assam.

Previously,multiple governments at Assamhave set up schools, primary health centres, aadhar centres and other common infrastructure in Dhalpur. Toilets have been built under the Swachh Bharat Mission. These facilities were provided over a period of time to better the lives of persons residing in Dhalpur, and such period of time could constitute an appreciable length of time. Moreover, a large number of these government-built and provided facilities are on lands demarcated for eviction, but have not been demolished.

Scholars have studiedthe effects of the Citizenship (Amendment) Act, in particular focusing on the way it makes Indian Muslims second class citizens in India.

Also read:The many texts and subtexts of the CAA, NPR and the NRC

In the context of Assam, the subordination of ethnic and religious minorities is routinised by state actions and legislations which metes out violence, and diminishes their social standing. How else does one explain the Garukhuti project, which seeks to empower a class of citizens while brutally inflicting violence upon another? The subordination of the ethnic and religious minorities in Assam is multidimensional persons are evicted by state actors, giving a complete go by to procedural safeguards with the blessing of the incumbent state government. As the law lends the force of State power, the state government marches towards fulfilling its election promises. In evicting without properly serving notices, a right of hearing and without any fact-finding exercise to determinebona fideclaims, the rule of law has been thrown aside, to usher in tyranny.

(Atreyo Banerjee is a B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences, and is currently an advocate practising across courts in New Delhi and West Bengal.Shardha Rajam isa B.A., LL.B. (Hons.) graduate from the West Bengal National University of Juridical Sciences and is currently a Research Associate working for the Laws of Social Reproduction project, Kings College, London/IWWAGE, New Delhi. The views expressed are personal.)

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Form - The Leaflet