On September 17, 2024, the Supreme Court while hearing a series of petitions concerning bulldozer demolitions in various states, issued an interim order halting all such actions across the country until the next hearing on October 1, 2024. The court ruled that no demolitions should take place without its prior permission though it clarified that this stay would not apply to the removal of encroachments from public spaces such as roads, footpaths, railway lines and water bodies.
The bench also noted that “the heavens will not fall” if bulldozer actions are paused until the next hearing. These observations, along with the court’s cautious approach to the state’s arguments suggest that the Supreme Court has provided some temporary relief for those affected. However, it remains too early to predict the final form of the pan-India guidelines the court had signalled it would develop in its earlier September 2, 2024 order.
These guidelines are expected to address the legality of demolitions targeting the homes of individuals accused of crimes. Beyond this immediate legal question, the broader issue of the state’s bulldozer actions raises urgent concerns about the rule of law as both a constitutional principle and a political ideal.
Interestingly, both the petitioners and the state have framed their arguments in terms of the rule of law. The petitioners argue that the demolitions represent violation of natural justice principles and collective and punitive punishment, often based on religious discrimination given the profile of many victims. The state, on the other hand, maintains that these actions are conducted in accordance with municipal laws and by-laws and denies any bias or foul play.
In effect, both sides are using the concept of the rule of law as a common thread, though in very different ways. This raises two critical questions: First, which interpretation of the rule of law is advancing constitutionalism in India? And second, is the rule of law in India undergoing a transformation, or has it already evolved into something new? The answers to these questions could have far-reaching implications for how justice and governance are understood in the country.
Situating bulldozer actions within the discourse of domicide in Israel
If one surveys the instances of bulldozer actions in India over the last few years, especially in the Bharatiya Janata Party-ruled (BJP-ruled) states, one witnesses a disturbing pattern bordering on trend.
Right from demolitions of primarily Muslims homes and shops in Khargone district of Madhya Pradesh in 2022 following communal rights during Ram Navami celebrations to the demolition of the house of a Muslim in Udaipur on the pretext of alleged crime committed by his son, the action by state arguably personifies collective and punitive action.
The district collector of Khargone, for instance, has reportedly stated that the action was undertaken to “send a message to the rioters”. While in Udaipur, the municipal corporation demolished the house, “declaring that it had been constructed illegally on the forest department’s land” and reasoned that “the department sent an evacuation notice to the family in the morning, and the house was razed by the afternoon.”
It must be said that the act is devoid of constitutional empathy as much as it is at the cost of the principles of natural justice. Moreover, even the requirement to serve notice, let alone provide a hearing or allow an appeal, was carried out in a shoddy manner. These two instances, along with scores of other demolitions across India, not just show the defiance of the rule of law, but hint towards something eerily sinister.
What is unfolding in the name of bulldozer actions in India is iteration — with difference in degree and scale — of domicides witnessed in Israel.
Domicide, conventionally speaking, is a concept associated with military act. However, in their influential work Domicide:The Global Destruction Of Home (2001), J. Douglas Porteous and Sandra E Smith, notes that domicide “is not confined [just] to military acts; indeed, it is common and of frequent occurrence” across space and time. According to Porteous and Smith, domicide is “deliberate destruction of home against the will of the home dweller” by authorities as a form of punitive action. Among many case studies discussed in the book, the systematic destruction of dwelling places of Palestinians by the Israeli authority stands out. Domicide is confined not just to the destruction of an entire village or town. It comes in many shades, and has immediate and inter-generational repercussions. Porteous and Smith writes that, “The most intimate scale of domicide is the deliberate destruction of a single home, as with the common punishment meted out to Palestinians by the Israeli army”. Thus, demolition of home be it in Palestine or anywhere else, it is not just about loss of shelter; it is equally about evisceration of memory, identity, and belongingness.
Domicide in Israel has legal authority and judicial backing. According to Regulation 119 of Defense (Emergency) Regulations, a military commander by an order direct the forfeiture to the government of Palestine on suspicion and satisfaction “that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, or of any house, structure or land situated in any area, town, village, quarter or street the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence”. Moreover, compensation doesn’t form part of the legal regime under Regulation 119.
The extant jurisprudence shows that the judiciary in Israel has upheld almost all the demolition actions under Regulation 119 thereby providing a judicial stamp to the instrument of collective and punitive punishment against Palestinians. Another important aspect of the demolition of house jurisprudence in Israel is recurring use of the following words: “deterrence”, “collective punishment”, “security of the state”, etc. Conspicuously absent, however, in case law on demolition of homes in Israel are the following words/phrases: “rule of law”, “proportionality”, “necessity”, etc.
However, it must be noted that the judiciary in Israel doesn’t have much elbow room to flex the muscle of constitutionalism autonomously given the politico-legal-judicial landscape dotted with, which constitutional scholar Ran Hirschl, calls Jewish meta-narrative. The idea of Jewish meta-narrative, in essence, can be described thus: a higher sacrosanct value informed by the idea of religion and Jewish identity, which is not just beyond constitutionalism, rather constitutionalism has to adjust, or be adjusted, to correspond to it.
Meta-narrative versus constitutionalism
The bulldozer actions against Muslims in India on the pretext of either alleged crimes or encroachment is not as dire as one witnessed in the case of Israel against Palestinians. The reason for difference in approach in the two jurisdictions is arguably not related to intent, but it has to do with the nature of the state and availability of extant laws.
Unlike India, where the preamble to the constitution declares it to be a democratic and secular nation, Israel declares itself proudly as a Jewish democratic state. Though Israel touts itself as a democratic state, in practice, in the words of political geographer Oren Yiftachel, is an ethnocracy. The reason for describing Israel an ethnocracy, notes Yiftachel, is the presence of legal and political structures that prefer the majority ethnic group over the minority ethnic group. Jewish meta-narratives, as noted above, act as a reference point against which all legal and political actions are adjudicated in Israel.
To get a sense of meta-narrative, sample the following case law — a ruling by the Supreme Court of Israel in Hamed v. Military Commander in the West Bank (2015). Following the shooting, which claimed Malachi Rosenfeld’s life and wounded three other Israelis, eleven demolition orders were issued against the accused on the grounds of accusation and suspicion.
Consequently, the Israeli supreme court was called upon to review the demolition orders. The reasoning, approach and, above all, the language of the Supreme Court is quite instructive in understanding the political economy of demolition of homes in ethnic polity or, for that matter, divided societies. While upholding demolition orders, the Supreme Court reasoned, “when the acts attributed to a suspect are particularly heinous, this may be sufficient in order to invoke this extreme sanction of demolishing the perpetrator’s home, for reasons of deterrence. The confidential information that was presented by the respondents shows that concern about damage to the homes of relatives has a deterrent effect on potential terrorists.”
The language of deterrence and the spirit of collective and punitive punishment is writ large in the judgement, and security of the Israeli citizens at its core. Thus, Hamed v. Military Commander in the West Bank showcases meta-narrative at work in its raw form. The ruling in Hamed also shows zilch regard to the rule of law and the principles of necessity and proportionality, and the state is just concerned with the security of the state and life of Israeli citizens. However, the idiosyncrasy of the politico-judicial world of Israel does not end with meta-narrative. Instead, the selective application or invocation of Jewish meta-narrative highlights the glaring aporia within Israel’s legal and political landscape.
In matters of personal status, the approach of the Supreme Court of Israel, quite starkly, have been to subject the autonomy of religious courts to the principles of due process and gender justice, and uphold progressive values. What explains this contradiction and its inner logic? The most apparent reading of the contradiction, one can argue, lies in the Jewish meta-narrative. Put differently, way above in hierarchy than a modernist understanding of constitutionalism- which talks about limited government. The working of the judicial system and how politics is conducted in Israel is determined by Jewish meta-narrative. Unlike any other democratic-liberal regime, where laws have to be conceptualised and interpreted in such a way that it furthers constitutionalism, in Israel Jewish meta-narrative rules the roost.
Authoritarian legality
Rule of law is one of the foremost political ideals that establishes the supremacy of the law in a modern society. The rule of law based society is relatively devoid of arbitrariness, and is dotted with justness, fairness and procedural propriety. Legal scholar Randall Peerenboom, however, adds further nuance to the rule of law.
Peerenboom notes that there are two conceptions of rule of law — thin/formal and thick/substantive. The former is about laws, rules and regulation, and adherence of the same by individuals, institutions, and entities alike. The latter conception is about the substantive aspect of the rule of law — content of the law, along with the former.
The rule of law in Israel is rule of law but of thin conception, and its nature is braided with the regime type, ethnocracy. Similarly, India too is a rule of law based nation, with relatively thick conception bordering on thin.
To illustrate this point, I would like to highlight the legal sleight of law used in the amendment abrogating the status of Article 370 of the constitution of India, which provided relative constitutional autonomy to the only Muslim majority state in India.
If one looks at the discourse of Article 370 through the prism of thin conception of the rule of law, right from the amendment till the adjudication of the matter, one gets a strong sense that the Narendra Modi-led BJP government ticked all the required boxes of procedures and rules. Thus, represents the act of amendment radiating legality. However, the moment one looks at the issue of Article 370 through the prism of thin conception, then, the veneer of legality falls like a house of cards.
The skullduggery which was on display both while abrogating Article 370 followed by the Supreme Court of India upholding the amendment is what constitutional law scholar Mark Tushnet calls constitutional hardball. According to Tushnet, constitutional hardball “consists of political claims and practices — legislative and executive initiatives — that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings” in an attempt to “place a new set of deep institutional arrangements of a sort I call a constitutional order”.
The biggest casualty in the abrogation of Article 370, far from showing any sign of correspondence between the thin and thick conception of the rule of law, was federalism, constitutional trust, and constitutional forbearance, which constitutes the substantive aspect of the rule of law.
“Change is the only constant,” goes the old adage. Similarly, political ideals and the political system are not set in stone; they change.
Also read: Why Supreme Court’s Move to Frame Guidelines on ‘Bulldozer Action’ Is Too Little, Too Late
To add further nuance to the above rule of law discussion, let’s consider the framework developed by Shucheng Wang in the essay Varities of authoritarian legality (2024). According to Wang, like Peerenboom, there is plurality of legality, and it should be studied on its own terms and within a specific context, rather than looking at it through a one-size-fits-all framework as it doesn’t provide a clear picture.
Authoritarian legality, writes Wang quoting Fu and Dowel, “…in a broad sense, is independent of regime type, with its distinctive features of ‘subordinat[ing] individual rights and freedom to statist and public interest’ and “a significant departure from rights-based and autonomous legal system”.
Wang comes up with three paradigms to look at the nature of legality — “law and politics”, “law with politics”, and “law in politics”.
Consider the “law with politics” and “law in politics” paradigm to contextualise my arguments. The two paradigms talk about the degree of autonomy law enjoys in a political system marked by authoritarianism.
According to ‘law with politics’ paradigm, in pursuance of the illiberal agenda of the power that be, fills the court with pliant judges and uses facile legal means to pull off autocratic objectives.
India, with the presence of preventive detention laws and emergency provisions in the constitution of India, does not just eerily represent the paradigm of “law with politics”, but it suggests that, as Wang observes, “law with politics” paradigm may shift to the “law in politics” paradigm in the sense that the judiciary frequently plays a supportive role in governments majoritarian agenda, or even becomes like a cheerleader for the agenda set by the politically dominant governing party.”
In India, the danger of shifting “law with politics” to “law in politics” wherein “law is institutionally integrated into politics to an extreme degree” is quite imminent. If that happens, India’s rule of law model will likely be grouped with Israel, which has an ethnocentric conception of the rule of law, rather than with countries like the US and UK, which have a long-established and deeply ingrained tradition of upholding the rule of law.
Bulldozer actions through Arendtian prism
Democracy is consistently facing a backlash in India by the Modi-led government. Things have come to such a pass that global institutes invested in democracy such as V- Dem and Freedom House in their latest reports have described India as “electoral autocracy” and “partly free”. Concerns such as undermining of institutions, persecution of minorities, and hate speech, the reports note, have severely pushed India’s functional democracy on the path of authoritarianism.
Authoritarian legality is gradually becoming a reality in India, and it poses an existential threat to constitutional order. So much so that, development such as bulldozer actions in India, , far from deviating from the Modi government’s governance template, personify its harsh reality.
Public realm, according to political theorist Hanna Arendt, are spaces “where people exist not just like any other living or non-living thing but to make their presence known … where people communicate and express themselves in a shared community.”
Public realm is the space represented by human action, freedom, and public participation. For totalitarianism to take root, or for its establishment and maintenance, Arendt’s The Origins of Totalitarianism informs us, destruction of the public realm is one of the most important conditions. The destruction of the political realm helps the totalitarian regime to achieve the objective of destroying the capacity of individuals to form public opinion and strike solidarity thereby frustrating collective resistance.
The de-politicisation of law is another mechanism through which a totalitarian regime pulls off its objective. By stripping the law of its political-public engagement component, moral and pluralistic ingredients, totalitarian regimes reduce it to technocratic and bureaucratic tools.
The bulldozer actions against Muslims in an environment saturated with sharp polarisation on religious lines, has not just damaged and destabilised public sphere by hollowing out from it the political engagement block, but even represents Arendt’s de-politicisation of law – which is one of the preferred tools of totalitarian regimes.
In the context of ‘bulldozer justice’, Fahad Zuberi and Raphael Susewind capture an important aspect. Zuberi and Susewind note that “the most extreme form of depoliticised law in the form of municipal building bye-laws- coupled […] with explicit contempt for due process and law as a strategy of regulating social or political conflict- [represent] a form of hyper-politicisation of law.”
Hyper-politicisation of law, which Zuberi and Susewind identify as a novel legal pathology in India, is quite instructive to understand the political economy of bulldozer politics. Hyper-depoliticisation of law, simply understood, is couching ‘unquestionable sovereign authority [of the majority]’, rather than sovereignty of the constitution, in legal language. Put differently, the logic and autonomy of the law informed by facts and public-political engagement is replaced by the majoritarian rhetoric. As shown above, the demolition of homes in Khargone didn’t happen in vacuum; it had a communal context.
Conclusion
The Supreme Court of India is set to resume hearings on bulldozer actions on October 1, 2024. Whatever the outcome of these hearings, the case will have significant implications for the state of the rule of law in India. Will the court reinforce constitutionalism or will it allow the erosion of these principles to continue?
The bulldozer actions targeting Muslims in India, when compared to Israel’s domicide policies, raise profound concerns. Unlike Israel, India does not have legal instruments like Regulation 119, yet these demolitions occur under the veneer of municipal and bye-laws within a supposedly liberal constitutional framework. Against this backdrop and the discussion set out in the preceding sections, the question now is whether the judiciary can restore faith in the rule of law, or whether it will continue to erode under the weight of authoritarianism.
Md Zeeshan Ahmad is an LLM candidate at SOAS.
