Sep 16, 2024 08:57 PM IST
The Court must fix accountability to ensure restitution for the illegalities that have occurred, and deterrence for the future
Over the last three years, in multiple parts of the country, we have seen the advent of what some people call “bulldozer raj” and others — in a strange inversion of the phrase — call “bulldozer justice”. The facts are well-known: If there is a disturbance — particularly a communal disturbance, or violence — in an area, soon after that, the administration brings in a bulldozer and demolishes the homes of (some of) the people who are accused of being behind the disturbance. To justify this action, the government in question claims that the demolished houses are irregular or illegal constructions. However, nobody is fooled. Politicians take credit for bulldozer action, claiming to have delivered instant justice. Much like “encounter killings”, bulldozer action is State-sanctioned punitive violence, that is conducted extralegally, and indeed, in violation of the rule of law.
In recent times, bulldozer action has become even more arbitrary and vindictive, with a house being demolished because the tenant’s son was accused of a communal crime. Incidents like this also show why such bulldozer action is contrary to all norms of civilised society: It targets not only the alleged perpetrator of an offence (before any guilt is proven), but, by destroying dwelling places, entire families. Such collective punishment is reminiscent of medieval societies, where individuals would be punished for treason by having their families executed along with them. One would think that a modern democratic Republic would have left that kind of punishment far behind.
Although bulldozer action has been challenged in courts for the last three years, unfortunately, the courts have refused to acknowledge — or to respond to — the serious threat to the rule of law that such State-sanctioned punitive violence presents. That appears to have finally changed earlier this month, when a two-judge bench of the Supreme Court finally took notice of such action, and questioned how the home of an accused (or even a convicted) person could simply be demolished by the State. The Court indicated that it would frame guidelines to deal with the issue.
The Court’s intervention is undoubtedly welcome, although one might question why it took the justices so long to spot what has been in plain sight for so long. Likewise, the Court’s indication that it wishes to tackle the problem is laudable. However, the framing of guidelines might be insufficient to do so. There are two reasons for this.
First, when the State acts in a manner that is outside the bounds of the law, what is required by the Court is to fix accountability, to ensure both restitution for the illegalities that have occurred, and deterrence for the future. Guidelines — which are essentially regulatory in nature — may not accomplish either goal. The Court’s previous attempts to frame guidelines in the cases of hate speech and mob lynching are instructive. These have played no deterrent roles, and individuals have had to come back to the Court and request it to ensure that the guidelines it has passed are implemented. Such efforts have not met with much success, as cases have either not been heard, or have gone before other judges, who have not been as committed to their enforcement as the judges who issued the original guidelines. The same might be the case here.
Secondly, the practice of vindictive demolition of people’s homes is not something to be regulated, but something to be quelled entirely. As State officials can — and have — often find innocuous reasons to mask vindictive demolition, there is a real risk that guidelines might end up legalising the practice rather than stopping it.
If, therefore, the Court does believe that guidelines are the way forward, such guidelines must be framed with extreme care. As political spectacle is at the heart of bulldozer action, forcing officials to fully comply with existing legal processes — such as giving due notice, having a hearing, not ordering a demolition unless there is no less restrictive alternative, and not acting on demolitions until the right to appeal has been exhausted — will ensure that politicians will no longer be able to whip up popular sentiment by sending in bulldozers the day after communal tensions.
Guidelines will be useless unless there is some penalty involved for their breach: For example, ordering State officials to personally make restitution for a proven, wrongly ordered demolition. Only then will such officials think twice about immediately acceding to the desires of their political masters to engage in punitive demolitions.
These are but two examples of what guidelines might contain, to have a genuine effect, not to not exist merely on paper. Ultimately, punitive demolitions are a scourge, where the State not only engages in targeted violence (that often has a religious angle) but actively undermines the rule of law. Any solution the Court comes up with must recognise the scale of the problem and respond accordingly.
Gautam Bhatia is a Delhi-based advocate.The views expressed are personal
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