Time to ponder why impression has been created that judiciary is no longer independent but supports executive
In 2017 the Electoral Bond Scheme was introduced. In the name of making funding of political parties transparent, the information of purchaser of electoral bond and the political party it was donated to was made opaque even to the Election Commission of India. ECI objected to the possible influencing of policy making by unchecked foreign funding. But it took Supreme Court eight years to strike down the EBS, holding it unconstitutional. Even then it did not seize the illegally accumulated funds. Bhartiya Janata Party which benefited the most from this scheme, as was expected, didn’t have to pay any price. On the contrary, it took advantage of this scheme in two Lok Sabha cycles and in various State Assembly elections.
The Uttar Pradesh Recovery of Damages to Public and Private Property Act 2020 allowed to government to seek compensation and attachment of property along with publication of personal details of person allegedly involved in activity leading to damage of property. In the violence which accompanied the protests against Citizenship Amendment Act and National Register of Citizens, U.P. government issued notices for recovery of damage to many individuals and publicly put up their picture with their names and addresses. This is even before the crime of the person was proved in a court of law. Hence punishment preceded the trail in the matter. In February 2022 Supreme Court ordered the U.P. government to refund any damages recovered from the anti-CAA/NRC protesters.
Then U.P. government, followed by other state governments, started using bulldozers to demolish properties of persons, especially belonging to minority community, who were viewed as political opponents. Apparently they were being punished for some crimes that they were accused of. Solicitor General Tushar Mehta said in Supreme Court that it was a coincidence that homes which violated local municipal laws belonged to persons accused of some crime. But the court, of course, disagreed and held that bulldozer demolitions amounted to arbitrary state action and undermines the rule of law, especially, as there we re other homes in neighbourhood which also flouted municipal laws but remained untouched. Justice B.R. Gavai defined right to shelter as fundamental right and considered its denial as unconstitutional. The Supreme Court on 13 November, 2024 gave clear directions that a notice must be served at least 15 days in advance to the owner-occupier specifically pointing out the violations for which demolition is sought. The owner-occupier will be given a personal hearing by the concerned authority and only if there is no option of compounding, i.e., monetary compensation/fine payable by owner-occupier, or partial demolition, will the extreme step of demolition be taken. But a final order after hearing will also give 15 days to owner-occupier to remove their belongings. In case any public official is found guilty of violation of these guidelines in demolition, s(he) will have to compensate for the demolished property at personal cost. The SC took a long time to come out with these guidelines or to even acknowledge that executive cannot perform the function of judiciary of handing out punishment, that too even before the guilt is proved. However, in spite of such cogent guidelines issued by SC, authorities continue to indulge in demolitions taking refuge in the provision which doesn’t allow protection to illegal constructions. Even in the case of illegal structures the procedure established in guidelines need to be followed.
The most egregious actions which required Supreme Court intervention were a series of petitions filed in district courts to allow for survey of mosques and dargahs to determine whether there was a temple in their place earlier. Since the Babri Masjid was demolished and a Supreme Court judgment came in 2019 allowing the site to be handed over to the Hindus for construction of a Ram temple, after acknowledging that there was no evidence of a temple having existed at that site and declaring demolition of Babri Masjid as an illegal act, persons associated with Hindutva ideology have been seeking to use the same template as was used in Babri Masjid’s case, to go to the district courts and try to get a favourable judgment. The decision in Babri Masjid-Ram Janambhoomi case was given in favour of the temple construction probably because it was thought that it would end all such other disputes. The Places of Worship Act, 1991 also held Babri Masjid-Ram Janambhoomi as an exception probably for the same reason. This Act prohibits changing the character of any religious place from what existed on 14 August, 1947, when India got independence. However, in retrospect it appears that the judgment in Babri Masjid-Ramjanambhoomi has had exactly the opposite affect. It has encouraged the fertile minds of Hindutva cadre to look for more Muslim places of worship or shrines where disputes could be created. The then Chief Justice D.Y. Chandrachud, opened a can of worms, when hearing the petition for survey of Gyanvapi Masjid he said that the Places of Worship Act didn’t restrict efforts to ascertain the character of the religious place. Was the then Honourable Chief Justice so naive as to believe that once the character of place was determined in favour of Hindus or even if a semblance of evidence was found to the liking of Hindus they would not follow the precedent of Babri Masjid episode? When the matter came of heads with a petition in Sambhal regarding survey of Shahi Jama Masjid at Chandausi, the electrifying speed at which ex-parte survey order was delivered to administration and survey team arrived the same day and a few days later there was violence, the Supreme Court restricted the Trial Court from proceeding in the suit till the matter was brought to Allahabad High Court.
We see the in various matters courts have been slow to act, so much so that damage is already done by the time courts take a decision and even then there is no guarantee that infringements will not take place. Guilty are let off, for example political parties which received illegal money through electoral bonds, officials who executed demolitions and extorted money from people accused of damaging property, persons who demolished the Babri Masjid or the Judge or officials who acted in haste in Sambhal, which ultimately led to loss of 5 lives. An impression has been created that judiciary is no longer independent and is going along with the ruling political ideology pardoning the acts of executive and supporters of this ideology. For the rule of law to be imposed we need a more vigilant judiciary which is willing to act with more alacrity.
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Chaitanya Pandey is a LLM student at Queen Mary University, London, Shashank Singh is Advocate at High Court and Supreme Court, Delhi and Sandeep Pandey is General Secretary, Socialist Party (India)
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