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Article: Demolitions: In Ignoring open illegality, is the Indian SC becoming an Orwellian Court?

 Gautam Bhatia

There is a line in George Orwell’s 1984, which goes “the Party told you to reject the evidence of your eyes and ears. It was their final, most essential command”.

Ongoing proceedings before the Supreme Court pertaining to the spate of home demolitions, which have been carried out across the country by municipal authorities, present a striking example of how judges can continuously reject the evidence of their eyes and ears. These proceedings follow a similar pattern: it is pointed out to the court (as discussed previously) that the home demolitions – which have now been going on in sporadic fashion for many months – are punitive, and designed to extract retribution for participation in protests. State counsel argue that the municipal authorities are acting in accordance with local laws. The Supreme Court bench – it tends to change – makes a rhetorical statement about how demolitions must follow legal process, makes another rhetorical statement about how it can’t pass “omnibus” orders against the demolitions, and then adjourns the case, as it did on Wednesday (while the demolitions continue).

In continuously refusing to take cognisance of the fact that the home demolitions are punitive and illegal, and follow the same pattern across the country (as argued previously), these Supreme Court judges reject the evidence of their eyes and ears. They manage to ignore the fact that, coincidentally, the home demolitions in question come immediately upon the heels of a protest that turns violent, time after time, and are specifically targeted against people who are named by the police in FIRs about rioting, time after time; that in Uttar Pradesh, Javed Mohammad’s home was demolished one day after the UP Police claimed that he was the “mastermind” behind the June 10 riots, and that in Khargone (MP), Khambhat (Gujarat), Nagaon (Assam), Jahangirpuri (Delhi) and in other places, the exact same pattern is followed (indeed, in Jahangirpuri, demolitions swiftly followed a letter from the BJP leader to the Mayor, asking for bulldozer action against “illegal properties of the rioters”).

Not only that, these Supreme Court judges reject the evidence of their eyes and ears where the punitive character is laid bare by agents of the State. A non-representative sample includes, for example, statements by the home minister of Madhya Pradesh, in the wake of the Khargone riots, that the “demolition drive against rioters would continue”; a statement by the divisional commissioner, Indore, that “the main idea behind the move is to instil fear of financial losses among the accused”; the Khargone district collector telling journalists that the demolitions were done to “send a message to rioters”; multiple other statements by Khargone officials, collected here; a statement by the district administration in Khambhat, Gujarat, that “the encroached properties belonging to the accused are being demolished”; the SDGP in Nagaon, Assam, telling journalists that “some of the suspects [involved in a riot] had encroached upon land … the eviction drive was carried out after a case was registered against them”; and this tweet by the media advisor to the government of UP, with an image of a destroyed home, and the caption “उपद्रवी याद रखें, हर शुक्रवार के बाद एक शनिवार ज़रूर आता है…”.

Examples could be multiplied, but what is abundantly clear is the two-faced character of the State. To maintain the veneer of legality, in its formal orders, the State claims that the demolitions are following due process, and the action has nothing to do with retribution. These are the arguments that the State’s counsel then make in Court. Quite apart from the fact that these arguments fail on their own terms, the basic point is this: the only way that you can accept the State’s arguments – pace Orwell – is if you choose to reject the evidence of your eyes and ears, not once, not twice, but every single time that State agents engage in targeted demolitions after protests, publicly brag about “teaching the rioters a lesson”, and then send their lawyers to argue in Court that the demolitions have nothing to do with the protests.

Finally, it is important to note that the court is not precluded from taking the evidence of its eyes and ears into account, and crafting appropriate relief. After all, this is a court that has, over the last four decades, prided itself on turning postcards into PILs, basing interim orders on (credible) newspaper reports, and wielding Article 142 as a sword of complete justice. Nor is it helpless when it comes to framing remedies: in a previous blog post, we discussed the doctrine of an “unconstitutional state of affairs”, which can allow the court to take cognisance of a systemic pattern of home demolitions across the country; but even without that, existing doctrines such as that of continuing mandamus can serve to address the situation.

However, having taken on this power to do substantive justice, the court’s refusal to use it in a case where the violation of the rule of law is clear and unambiguous, is a choice from which it cannot escape responsibility. The court’s bland, oral observations about “omnibus orders” and “following the law”, and its continued kicking of the can down the road while the demolitions continue, allows this two-faced State action to continue with impunity. And its continued refusal to even acknowledge the evidence of its eyes and ears – the evidence of all our eyes and ears – makes us wonder whether the Supreme Court is on the way to becoming George Orwell’s Court.

This article first appeared on the author’s blog, Indian Constitutional Law and Philosophy. It has been edited slightly for style.

Note: In an earlier version, Javed Mohammad was wrongly identified as Javed Anand.

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