Bulldozers have become a symbol for aggressive state action in India. In an era of majoritarianism and divisive politics, they epitomised the demolition of not only physical structures, but the very idea of the rule of law. The eviction drive based on demolition as happened in Assam in September 2021 was justified by the state’s chief minister. In states like Uttar Pradesh, Madhya Pradesh, West Bengal, Maharashtra, Gujrat, Karnataka and Delhi, residential and other buildings have been smashed as a punitive measure.
These bulldozer actions were often with the overt or covert involvement of the state. It is this indulgence shown by governments that created a new normal in the Indian social landscape. It is no longer an aberration on the part of a few bureaucrats who choose to target some hapless victims with an arbitrary use of power. The actions were often vitiated by communal agenda that replaced the idea of constitutional governance.
It is in this context that one reads the judgement of the Supreme Court In Re: Directions in the matter of demolition of structures delivered on November 13. Though the judgement is belated, its significance for the future requires to be emphasised. The question posed at the beginning of the judgement, whether the executive should be permitted to demolish the shelter of an accused as a punitive measure, can only be answered in the negative and the judgement does so as well.
Rather than the delay in final adjudication, it is the delay in passing a prohibitory order against demolition that perpetuated the arbitrary state action in the country. For this, the court deserves some collective blame. The court issued an interim order only on September 17, 2024.
The bench had allowed lawyers to put up their suggestions on various aspects of the issue. They include serving of notice, the way in which the response to the notice should be considered, proportionality in the action, judicial review of the action, accountability, liability of the concerned officers, etc. The judgement is a juridical solace to the public at large at a doctrinal level.
The court elaborated A V Dicey’s concept of the rule of law. It expounded the classic democratic principle on separation of powers and the idea of check and balance for prevention of tyranny of the majority. It reminded all concerned about the notions of public trust and accountability.
Again, the court underscored the conventional virtues of penal laws, like presumption of innocence and adherence to principles of natural justice. It correctly integrated the right to shelter with the fundamental right for dignified life under Article 21 of the Constitution. This is how the court exposed the dangerous folly behind the idea of collective punishment, that too by an executive that becomes the judge of its own cause.
In the end, the court mandated a 15-day notice with necessary particulars and personal hearing preceding the action. The directives contemplate judicial scrutiny of the final orders and prescribed detailed procedures including videography, even for permitted demolition. The case is not concluded yet and therefore, it is quite possible for the court to issue further directives that might set right the deficits in the directives. The question is how the task could be effectively fulfilled.
It is reported that in India, since 2022, about 1,50,000 houses were subjected to bulldozer action that turned about 7,38,000 people homeless. The court had to address this ground reality. That the Supreme Court or the various high courts did not issue timely prohibitory orders against most such inexcusable acts is a sad commentary on the episode.
This again takes us to the importance of interim orders in constitutional adjudication. When the exigencies demand, the constitutional courts are bound to issue interim orders that could be as important or sometimes more important than the final orders.
The three principles to be invoked for the purpose of interim orders are: a prima facie case, balance of convenience and the possibility for irreparable injury. This triple test would hold good against almost every bulldozer action in the country. In the case of massive demolitions, the constitutional court ought to have acted even suo motu to protect the rights of the victims, which predominantly include minorities.
The track record of the Supreme Court in recent times would demonstrate the significance of such interim orders. The implementation of the three contentious farm laws was stayed by the top court in Rakesh Vaishnav vs Union of India (2021). The court on another occasion injuncted the continuation of a programme in Sudarshan TV on the grounds that it is prima facie offensive and divisive. On yet another occasion, the court ordered registration of first information reports on acts involving hate speech. It suspended the coercive actions based on the penal provision on sedition in the erstwhile Penal Code. These interim measures had an indubitable impact on the ground.
On the other hand, when the court failed to issue interim orders of stay and allowed the impugned action to go on, serious litigations turned practically infructuous. It so happened in the cases related to demonetisation, Aadhaar and the Jammu and Kashmir special status challenge.
Therefore, while deciding the question of bulldozer justice, the top court ought to have viewed the issues with a sense of introspection and retrospection. That would have motivated the court to evolve a judicial strategy, by way of ‘continuing mandamus’, to indemnify the victims of the atrocious demolitions that occurred in the past with the connivance of the state and support of the politicians who ran the show. This of course is a herculean task that might require coordination of various agencies, including the revenue authorities.
They should be directed to collect the details of calamities that occurred on the ground, and quantify the damages due to the victims. The legal services authorities at the affected areas also should be activated in this regard. The respective high courts also can oversee the process. Judicial activism is no longer a sin during dark days of executive belligerence. The point, however, is whether the court will carry out the ultimate mission.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)
