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A protest takes place in a locality or neighbourhood, which turns violent. Soon after, the police declares that a certain individual, or set of individuals, have been identified as the “masterminds” behind the violence. Immediately after that, the municipality declares that these individuals are residing in unauthorised buildings (often – as in the most recent case – with backdated notices of doubtful authenticity).
Factual mistakes and absurdities in the demolition notice served on Javed Mohd's house:
Last night at about 11 pm Allahabad police stuck a demolition notice on the house of Javed Mohd. The back dated notice was served in the name of Javed Mohd,
— Sharjeel Usmani (@SharjeelUsmani) June 12, 2022
The buildings (homes) are then demolished. In the normal course of things, the time period between the police declaring that it has identified the masterminds behind the violence, the municipality declaring that the buildings are illegal, and the actual demolition, is under 24 hours.
On its own terms – that is, even assuming that the rationale for the demolitions is illegal constructions, and not collective punishment – this modus operandi violates both local and municipal laws, the rule of law, and the constitution.
What, then, is the remedy? As the case around demolitions at Jahangirpuri in New Delhi showed, the speed at which demolitions are undertaken ensures that even where there is judicial intervention, it is often too late to accomplish anything meaningful. Things are even worse when demolitions happen far away from Delhi, or in places – and to communities – where immediate access to courts is substantially more difficult.
This piece proceeds upon the important assumption that, at present, the Supreme Court has the will and the desire to address the serious challenge of the executive flouting the rule of law through the pattern of home demolitions across the country. If that assumption is true, then the question is – given the facts laid out in the above paragraph – how the constitutional violation ought to be framed, and how a remedy may be crafted.
I suggest that at present, our constitutional jurisprudence may not have the precise vocabulary to address the issue: as the Jahangirpuri demolitions showed, the court was minded to treat the demolition as an individual state act, which it would scrutinise for compliance with the law and the constitution.
As the copycat actions across different states have shown, however, a specific instance of home demolition is not an individualised act, but is part of an evolving pattern of collective punishment by the State. To capture this, I suggest, new vocabulary might be needed. One place where this can be found is the Latin American doctrine of an unconstitutional state of affairs.
The doctrine of an unconstitutional state of affairs originated in Colombia, and was later adopted in Brazil. As the term suggests, an unconstitutional state of affairs is specifically meant for a situation where the violation of rights is not individualised, but structural. According to a definition:
The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution.
The importance of the unconstitutional state of affairs doctrine, therefore, lies in its focus upon the widespread and systematic violation of fundamental rights. In the present situation, not only are the criteria for the application of the doctrine met, but it is the only truly effective doctrinal tool that the Supreme Court can apply to deal with the situation.
There are two reasons for this. The first is that as long as the court considers individualised cases of demolitions, it needs to take at face value the entirely implausible assertion that the police action in “identifying” the alleged rioters is separate from the municipality’s action in demolishing the home. In true Orwellian fashion, the court has to ignore the “evidence of its own eyes and ears” – i.e., the chronology of events that is police identification – municipality declaration – demolition, all within the space of a day. This, in turn, means that the court is forced to examine what is essentially a case of collective punishment, within the framework of municipality laws.
The unconstitutional state of affairs doctrine, however, expands what the court can consider, both in time and in space. It allows the court to take into account the “systematic nature” of this practice, both in the recent past, and in its spread across the country.
This is crucial, because it is only from the pattern of home demolitions that the court can extrapolate the fact that collective punishment has become an informal part of state policy. After all, it might plausibly be argued that a single occasion happens to be a coincidence; when, however, the same thing – police identification, municipality declaration, demolition – repeats itself over time and space, it becomes evident that it is state policy.
Now, once an unconstitutional state of affairs has been identified (on the basis, of course, of evidence collected over time and space), what remedy follows?
Here, we are back in familiar territory: the Brazilian and Colombian courts have developed the remedy of a structural injunction, or – as we know it in India – the continuing mandamus. The continuing mandamus allows the Supreme Court to take cognisance of the situation, issue interim orders, and monitor for compliance – which, crucially, will not be limited to single cases, but will extend to the unconstitutional state of affairs at large.
What might those interim orders look like in this situation? That, I think, would depend upon how lawyers and justices might want to craft the relief, but at a pinch – for example – mandatory judicial sanction before demolition as an interim measure is one possibility; the crucial thing to note, however, is that to be effective, the remedy must be: (a) preventive, and (b) extend to all cases.
Under present circumstances, where demolition cases are being treated on an individual basis, neither is possible. The unconstitutional state of affairs doctrine, however, provides the Supreme Court with a vocabulary to do both.
This article first appeared on the author’s blog, Indian Constitutional Law and Philosophy. It has been edited slightly for style.