After Supreme Court bans 'bulldozer justice,' will India see real change?

Earlier this month, the Supreme Court of India issued a verdict upholding the illegality of bulldozing the homes of people accused of committing crimes.

This ruling may give minorities unjustifiably targeted by India's ruling Bharatiya Janata Party (BJP) a chance to catch their breath. For years, the BJP has used encroachments as a pretext to bulldoze houses, but framed the act as a form of justice against those accused of crimes, to pander to its Hindu majoritarian constituency.

But it may be too early to celebrate the judgement as a victory.

Since 2022, governments in several BJP-ruled states have weaponized "bulldozer justice" against critics and India's largest minority – Muslims. By some estimates, at least 153,000 homes have been razed to the ground, rendering about 738,000 people homeless in 2022-23.

One of the most egregious cases was the demolition of the house of activist Afreen Fatima in Allahabad, just after she and her family members were arrested for protesting. The incident triggered an increasing pattern of bulldozed houses and open celebration by the Hindu Rightwing of "bulldozer justice."

What made the whole phenomenon more insidious was the normalisation of the egregious scale of vandalism, even though illegal, on the pretext of anti-encroachment drives and the glorification of retribution against "criminals" – a euphemism that Hindu rightwing groups use for Muslims.

Far-reaching impact

In declaring the demolitions "unconstitutional," the high court reasoned that no due process was followed, that the executive branch has no right to deliver collective punishment and that people cannot be robbed of their shelters.

The court also held that those who violate its verdict would be found in contempt, and threatened to impose monetary penalties on derelict officials.

Two significant aspects of this decision will have a far-reaching impact on the ground. One, the court sees a person's home as having both material and emotional value, as a provider of shelter and dignity.

Second, by putting the onus on officials to ensure that the law is not violated with impunity, the verdict may apply brakes on any future arbitrary demolitions.

But what does the verdict mean for those who have already lost their homes? It has not only come too late in the day, but it is no less a travesty of justice that judges failed to provide substantive compensation or remedies for the many people rendered homeless in the last two years during trial.

The lack of retroactive relief and the inability to affix responsibility for the trauma suffered appears to be based on the principle of "let bygones be bygones and move on," but this philosophy severely limits the scope of justice.

Question of enforcement

Another significant question is whether we will see an end to arbitrary demolitions in the future.

Implementing the court verdict is challenging as it would ultimately fall on the executive branch to ensure the directives are carried through in full letter and spirit.

When the power is vested in a party whose majoritarian impulses promote retribution against minorities, there is little to expect. Would the executive act against the very tendencies it has been promoting? This is not simply a hypothetical question.

Take the example of lynching. In 2018, the Supreme Court passed similarly stringent rules against this type of mob violence, calling it a troubling "typhoon-like monster." The judges also recommended disciplinary action against officials who failed to protect victims against vigilante mobs.

But such violence targeting minorities, particularly Muslims, has not stopped. Whether it is the issue of inter-religious marriages, freedom to worship, running an eatery or possessing "beef," minorities continue to bear the brunt of vigilante mobs, often under the full glare of the police, irrespective of promising verdicts and observations made by the courts.

When vigilantism receives tacit state patronage and officials face political pressure to go soft on criminals who target minorities, then "bulldozer justice" continues. In fact it is celebrated by a government that prioritises majoritarian impulses over constitutional principles.

The sobering reality of an overburdened court system struggling with massive backlogs suggests that translating judicial wisdom into administrative action may remain a persistent challenge.

Guardrails?

The court verdict provides significant guardrails to check the demolition of properties as part of anti-encroachment drives, but these established guidelines have yet to be put to the test.

Will the spirit of law be upheld, or would the administrative apparatus with the tacit patronage of the political dispensation find ways to circumvent these guidelines that already come with a rider?

The court upheld a 15-day notice period before any demolition, saying that affected parties should be given the opportunity to seek legal remedies. But this would not apply to "unauthorised structures on public land and roads."

Could such exceptions be weaponised against critics and minorities to undermine the very protections that the verdict guarantees?

In many cases of demolitions, including some historic places of worship, authorities have claimed that the structures were built on encroached lands. This rationale can be exploited to the hilt, especially in Jammu and Kashmir – India's only Muslim-majority region, where land laws were drastically changed after 2019, when the Indian government revoked Kashmir's autonomy.

These legal changes have enabled large-scale evictions and demolitions, as many rightful property owners had no authentic documentation of their ownership under the newly altered laws that also changed the nature of land usage.

Properties and homes of people have also been seized or destroyed on mere accusations of involvement in terrorism without any trial, highlighting an ongoing trend of subjecting an entire family to collective punishment based on mere suspicion of one person's involvement.

Property ownership across India is a far more complex issue. Mere guidelines that skirt these complexities while offering scope for exploitation will not prevent erring officials from bypassing them and carrying on with their bulldozer campaigns. These issues need to be addressed in more detail.

In the short term, the courts should address the needs of those who have already suffered due to the unconstitutional demolitions of their homes.

The question of tangible relief with retrospective effect needs to be re-opened. Proactive measures to provide redress to past victims and fix the responsibility on errant officials will not only meaningfully protect vulnerable communities, but also induce a more effective measure of deterrence in the future.