The Higher Courts Must Show Their Teeth When Necessary

At long last, the Supreme Court of India – the esteemed body of jurists that remains the final bastion of hope against the executive’s relentless attempts, with legislative support, to undermine the rule of law – has delivered a judgement that should put an end to a most obnoxious and barbarous means of extrajudicial punishment: Bulldozer Justice.

Unfortunately, one cannot be certain whether the ruling establishment and its compliant bureaucracy, notorious for their scant respect for the judiciary, will adhere to the law. Their disdain for judicial oversight which they view as an impediment to circumventing due process, gives ample reason for scepticism.

The common man’s frustration with the sluggish and corrupt justice delivery system and his clamour for instant justice is understandable. Over the years, our legal procedures have become so convoluted and cumbersome that it is nearly impossible for an ordinary person to navigate them without greasing palms all the way.

Even when a case reaches the courts, which is no mean achievement in itself, there is no telling when justice will be served. If it is a criminal case, its resolution largely depends on law enforcement agencies, which, rather than acting according to the law or professional training, often follow the dictates of their political masters. It is not anybody’s case that the police force is devoid of sincere and honest officers. However, given the unrelenting pressure – accompanied by threats of frequent transfers or worse – how many can withstand the coercion is an open question.

In civil matters, there are ample numbers of examples where generations of litigants have passed away, while the matter hangs fire in our courts.

The recent judgment pertains to the illegal demolition of homes owned by six citizens, purportedly on the grounds that these structures lacked legal sanction. This is hardly an isolated case. Time and again, bulldozers have been deployed against alleged offenders, with a disproportionate number of victims belonging to the minority community.

Ever since the BJP came to power in Uttar Pradesh, its Chief Minister has relied upon two extra-judicial mechanisms to maintain law and order. He failed to realise that in doing so, his government itself took recourse to illegal means to tackle alleged criminals and curb their activities.

One of these methods was bulldozing the dwelling or commercial units belonging to the alleged culprits for his family, and the other was “encounter.”

The modus operandi for these actions is hopelessly similar and is full of so many holes that they look more like Bollywood potboilers than real-life occurrences. The storyline runs like this: once an allegation is made against someone, and the powers that be decide to use the bulldozer, the civic authorities stumble upon the “fact” that the suspect had either built the property without sanction or that the land on which it stood was illegally occupied.

A perfunctory notice is served, swiftly followed by the demolition team with heavy machinery who act to turn the structure to rubbles at a speed that is never seen when they work for some public good.

The same formula, with suitable modifications, applies to the dramas called “police encounters.” Either an alleged criminal is apprehended or is on the run after committing a heinous crime. If arrested, the police take him to the scene of the crime for “reconstruction.” At this point, the suspect suddenly snatches an officer’s firearm and tries to flee, firing at the police.

Naturally, he is gunned down by the police in “self-defence.” If the suspect is at large, the police conveniently receive “prior intelligence” of his whereabouts, leading to an exchange of gunshots resulting in the death of the alleged criminal. Minor tweaks in the narrative accommodate the specifics of each case.

Magisterial enquiries routinely validate the police account, and “encounter specialists” are publicly felicitated for their bravery. Meanwhile, the public, desperate for swift justice, applauds these short-circuited proceedings. All the laborious process of meticulous investigation, painstaking detective work, application of the correct sections of the criminal code, and proving the criminal’s culpability beyond any reasonable doubt in court – hallmarks of justice in a civilised society – is conveniently bypassed.

On rare occasions, some encounter cases are proven to be cold-blooded murders, but the media coverage of such revelations is nowhere near the exposure that the initial “encounter” story receives.

Does this approach deter crime? Statistics suggest otherwise. Yet, who cares for statistics when vigilante justice satisfies public sentiment? If this process creates Frankenstein-like figures in uniform, our society seems willing to accept it. The rule of law? An inconvenient relic of the past.

After a plethora of Public Interest Litigations and several years of wanton lawlessness by the state governments – many of them encouraged by Uttar Pradesh’s example – the Supreme Court in November 2024 declared that it (bulldozing of properties) was a “lawless, ruthless state of affairs”, and issued pan-India guidelines on the matter.

Notwithstanding the directives of the highest court of the land, the BJP-ruled state governments continued with these illegal demolitions in utter defiance of the judicial pronouncements and reprimands.

It is hoped that the latest judgment—wherein the Supreme Court imposed a hefty fine on officials responsible for illegal demolitions in Prayagraj—will compel the administration to reconsider its actions. However, if history is any guide, old habits die hard, particularly among bureaucrats and strongmen masquerading as elected representatives, sworn to uphold the Constitution while subverting it at every turn.

If that happens again, the constitutional courts must not retreat into silence like a turtle retracting its limbs. It is true that contempt of court powers, to be really effective, should be sparingly and judiciously used. However, persistent disregard for judicial rulings, making a mockery of the Constitution and the rule of law, warrant stronger measures.

Mandating the personal appearance of chief secretaries in court could serve as an initial deterrent. Physical attendance in the court by the concerned chief secretaries, to begin with, seems to be in order. Just a little baring of the canines should be enough to drive home the message that adherence to and scrupulous implementation of the higher courts’ judgments is not optional.

Sandip Mitra retired from the Indian Foreign Service. Views expressed here are the writer’s own.

Cover Photograph: First six Justices of the Supreme Court along with 13 Chief Justices from various High Courts. (Archives)