‘Bulldozer justice’: Iron in the nation’s soul

Supreme Court’s intervention against unlawful demolitions renews hope for constitutional values, challenging state overreach and arbitrary punishment.

A bulldozer being used in Prayagraj in June 2022 to demolish the “illegally constructed” residence of Javed Ahmed, a local leader who was allegedly the key conspirator of violent protests against a BJP leaders’ remarks on Prophet Muhammad. | Photo Credit: PTI

The Supreme Court’s interim order of September 17, staying the demolition of properties of persons accused in criminal cases is premised on the unexceptionable principle of constitutional governance that the exercise of state power is accountable to the discipline of the Constitution. It is a reminder to executive authorities that mere lip service to procedural niceties is not a sufficient assurance of compliance with the requirements of legal due process. Rooted in “the ethos of the Constitution”, the order echoes the outraged conscience of the nation against the use of brute force by the state in meting out retributive justice. That the order was resisted in court by the government in a matter seen as a frontal assault on constitutional conscience, speaks for itself.

Judicial intervention in a petition filed by Jamiat Ulama-I-Hind in the wake of widely reported demolitions across the country was sought principally on the touchstone of Article 21 of the Constitution that guarantees to all individuals the right to life with dignity, including the right to shelter, privacy, and reputation. Though belated, the order interdicts what is now infamously known as “bulldozer justice”, a mode of punishment wholly incompatible with the first principles of constitutional justice. In a purposive intervention, the court has proposed to lay down a set of guidelines applicable on a “Pan India Basis” to prevent unlawful demolitions anywhere in the country and has thus exercised its plenary jurisdiction in aid of humanitarian justice. In a perfect harmonising of equities, it has ruled that its interim injunction regarding demolitions would not apply in cases of encroachment of public spaces such as “road, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by the court…”.

Legally indefensible

What is worrisome, however, is that the apex court’s intervention came after several residential and commercial premises of citizens were unlawfully razed in what is clearly seen as a legally indefensible action across several States including Uttar Pradesh, Madhya Pradesh, Haryana, Maharashtra, and the city of Delhi. Even as attempts to justify “bulldozer justice” persist, the prima facie unlawful use of brutal force by executive authorities to deprive citizens of their homes and places of work has shamed the nation. As citizens, we are compelled to ask ourselves “whether the rights of the individual, subject to his duties to the state, be maintained, asserted and exalted” [Winston Churchill, pre-war speech, (1938), expounding the necessary conditions of democracy].Clearly, as long as the sanctity of our homes is not secure against unjust state intrusion, the cherished ideal of Gandhi’s Swaraj and a vision of libertarian democracy in which “...the poorest man may in his cottage bid defiance to all the force of the crown…” will remain a distant dream. Discriminatory, disproportionate, arbitrary, and violative of the rule of law, “bulldozer justice” is anathema to any civilised society, especially in a country whose political and social consciousness has been shaped in the crucible of a long and arduous struggle for freedom against colonial rule.

In the cause that is yet to be argued fully, the court is expected to respond to the constitutional command in an unapologetic assertion of its remit. Summoned to defend fundamental freedoms, it must revalidate its role as the nation’s impartial judicial arbiter by scripting a credible remedy that will minimise, if not eliminate, the excesses of the state against its citizens.

At an election campaign in Haryana’s Nuh district on September 24. That bulldozers are used in election campaigns shows the political triumphalism and majoritarianism that bulldozers have come to symbolise in recent years. | Photo Credit: PTI

But the issue at hand raises larger questions: must citizens be compelled to approach the highest court for relief against the recurring high-handedness of the executive branch? Can a constitutional state sanction retribution through processes in breach of law and extend the consequences thereof to the innocent families of the accused, including women, children, and the elderly, depriving them of a roof over their heads and the means of subsistence?Implicit in the interrogatory is a perceived perversion of constitutional governance at different levels that compels an urgent review of the nation’s governing processes to ensure that administrative justice meets the test of fairness.

Peoples’ power

While the judiciary is expected to perform its assigned task, it would be unfair to saddle it with a disproportionate burden to defend individual rights, considering the institutional limitations. The defence of democracy and the rule of law is, after all, the collective burden of the three wings of the Indian state and, in the ultimate analysis, of the people as a whole, who must write their own story through peaceful democratic assertion against injustice. As a repository of the peoples’ power, the government is expected to exercise its authority in honest and demonstrable compliance with established legal procedures so that justice is not only done but is also seen to be done.

We must ask ourselves whether the smallness of our politics is conducive to the establishment of a just society. Indeed, it is necessary to reiterate the obvious and ask difficult questions, lest we forget who we are. No apologies are owed for condemning the inhuman acts that have wounded national sensitivities and left behind an unhealable pain in an unending “daze of grief”. By a robust refusal to countenance injustice and abuse of power, Justices Gavai and Vishwanathan have once again vindicated the oath of their high office. In path-breaking judgments on bail and “bulldozer justice,” the judges have validated the view of the distinguished historian Arnold Toynbee that the history of human civilisation is the history of how civilisations respond to challenges that shape the world. The tragedy of “bulldozer justice” and the court’s response will, hopefully, define the future course of India’s democracy.

Ashwani Kumar is former Union Minister for Law and Justice, and Senior Advocate, Supreme Court. The views expressed here are personal.