Don’t let the State trample over the law of the land
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 the executive authorities that in a State governed by the rule of law, mere lip service to procedural niceties is not a sufficient assurance of substantive compliance with the mandatory requirements of legal due process. The court’s order, rooted in ‘the ethos of the Constitution’, echoes the outraged conscience of the nation against the State’s exercise of brute force 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 and an indelible scar on the soul of the nation speaks for itself.
The court’s intervention in a petition filed by the Jamiat Ulama-i-Hind in the wake of widely reported demolitions across the country was sought on the touchstone of Article 21 of the Constitution that guarantees to all individuals the right to life with dignity, which includes the right to shelter, privacy and reputation. Though belated, the court’s order interdicts what is now infamously known as ‘bulldozer justice’, a punitive mode wholly incompatible with the first principles of constitutional justice. In a purposive judicial intervention, the court proposed a set of guidelines on a ‘pan-India basis’ to prevent unlawful demolitions anywhere in the country and has thus exercised its plenary jurisdiction to fill a legal vacuum. In a perfect harmonising of equities, it has ruled that the 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…”
It is worrisome that the apex court’s intervention came after several residential and commercial premises were unlawfully razed in what is prima facie a legally indefensible action across several states, such as Uttar Pradesh, Madhya Pradesh, Haryana, Maharashtra and Delhi. Even as attempts to justify ‘bulldozer justice’ persist, the unlawful use of brutal force by executive authorities to deprive citizens of their homes and places of work has shamed the nation. We are compelled to ask ourselves if there is “fair play for poor as well as for rich, for private persons as well as government officials” and whether “the right of the individual, subject to his duties to the State, be maintained, asserted and exalted” (from Winston Churchill’s 1938 speech, 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 a 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 an 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 the oppressive colonial rule.
In the cause that is yet to be argued, 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.
But the issue at hand raises larger questions: Must citizens be compelled to approach the highest court for relief against recurring high-handedness of the executive branch? Can a constitutional State sanction retribution through processes unknown to law and extend the consequences to the innocent family members 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.
While courts can be expected to perform their assigned tasks, it would be unfair to impose a disproportionate burden on the judiciary, 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 unjust actions of the State. As a repository of the people’s power, the government is expected to exercise its authority in demonstrable compliance with the established legal procedures so that justice is not only done but is also seen to be done.
We must confront a broader question: is the smallness of our politics conducive to the establishment of a just society? Indeed, it is necessary to state the obvious and ask difficult questions, lest we forget who we are. No apologies are owed for condemning the unacceptable, particularly, the inhuman acts that have wounded national sensitivities and have left behind an unhealable pain in an unending ‘daze of grief’. By a robust refusal to countenance injustice and abuse of power, Justices BR Gavai and KV Viswanathan have once again vindicated the oath of their high office. In their path-breaking judgments on bail and ‘bulldozer justice’, the judges have validated the view of distinguished historian Arnold Toynbee that the history of the human civilisation is the history of how civilisations respond to challenges that shape the world. The tragedy of ‘bulldozer justice’ and the court’s action will doubtless define the future course of India’s democracy.
Views are personal
