The first two weeks of October have seen large-scale protests in Delhi demanding the resignation of the Chief Election Commissioner (CEC) and the rollback of the Special Intensive Revision (SIR) of the electoral rolls. A number of legal cases have arisen out of the protests. Without exception, they have ended up in the Supreme Court of India (a half-hearted attempt to approach the High Court of Delhi over denial of protest permission and the subsequent de-notification of Jantar Mantar as a protest site ended up as infructuous and overtaken by a Supreme Court petition respectively). At the time of writing, these cases are ongoing.This blog post makes two points. First, in a large number of cases involving the violation of protesters’ civil rights by the police, the Supreme Court is a forum that is structurally designed to ensure that meaningful justice is impossible. Secondly, the ongoing cases have thrown up new forms of “lawfare,” which – borrowing from media theory – I call “flooding the zone.” These two points are linked, because it is the Supreme Court’s structure and design – and, in particular, its PIL jurisprudence – that makes “flooding the zone” both possible, and a desirable tactic.An appellate forum as the first and final tribunalAt the risk of some oversimplification, the Supreme Court is an appellate court and – like any other constitutional court – is designed to adjudicate question of law. This design proceeds on the assumption that by the time a case reaches the Supreme Court, there is a broad and basic agreement between the parties on the facts. That is not to say that appellate courts never look into facts: in certain cases, when it is clear that the forum that has adjudicated a factual dispute has misdirected itself, appellate courts can – and do – refer the dispute back to that forum to take a fresh look.The distinction between law and fact matters because – as we have noted before on this blog – adverserial legal systems (and India is still, at least formally, somewhat committed to an adverserial system) have developed a fairly complex infrastructure to adjudicate factual disputes: the trial. And one of the fundamental features of the trial is that the factual narratives of each disputant are put through the rigours of examination by their opponent. It is through this process that the adjudicator – the judge – can arrive at an approximation of the truth.Now, an overwhelming number of cases arising out of the Delhi protests have to do with police action: allegedly illegal detentions, violence and assault, potentially illegal arrests, and so on. These are, at their core, factual disputes. This is not a case where a formal emergency has been declared, or where the state’s police admit to acting outside a legal framework. On the contrary, the police’s case is that they are acting within the legal framework, and undertaking proportionate action to maintain public order. For every allegation of fact, there is a counter-allegation of the demands of policing in a volatile protest.Also read: Crying ‘Regime Change’ Proves Modi Govt Has Lost Control: The Ground Has ShiftedHow is an appellate forum going to resolve this factual dispute? When the Supreme Court invented PIL jurisdiction in the 1980s, it allowed for factual assertions to be placed before it by way of affidavit. In the early PIL cases, the Court also stressed that because these were not meant to be strictly “adverserial” proceedings, this method – as a way of determining facts – was permissible. Thus, the trial method of cross-examination was replaced in PILs by documentation from the parties. However, it should be immediately evident that the moment you get to a genuine dispute of fact, “affidavit evidence” fails, because now you’re faced with duelling affidavits, each of which claims to set out the true version of facts. This is exactly where the adverserial system introduces mechanisms to test competing evidence (such as cross-examination), the very mechanisms that an appellate court does not have. So, for example, in the ongoing protest cases, petitioners brought to the court photographic and video evidence of police violence; the state’s police, in turn, countered that its officers were being unlawfully assaulted in the line of duty. At this point, without any further mechanisms to determine the truth of the question, it simply comes down to “which side do the judges believe more?” This is unsustainable.Not only is this unsustainable, it is also an outlier. In all my years of studying comparative constitutional law, I do not know of another jurisdiction where a country’s Supreme Court has come to act as – what I previously called in the Judge Loya hearings – “the first and final tribunal.” There is a reason why functioning constitutional democracies have a hierarchy of courts, specialised tribunals, fact-finding procedures, inquests and public inquiries, and a clear distinction of judicial functions. All of this is an essential component of the rule of law, and of ensuring that the rule of law does not drown in the vast sea of personalised discretion. However, the extreme blurring of judicial functions in India means that we are now operating in that vast sea of personalised discretion: the discretion of Supreme Court judges not only to decide questions of law, but also – in essence – to decide what reality is.Who is responsible for this? The answer is complex, and a large part of this has to do with the Supreme Court, since the 1980s, using PILs to swallow ever greater domains of jurisdiction, like the Leviathan of old. But a part of it is surely also the responsibility of those who approach the Court and invite it to stake claim over these ever-expanding domains, including those where it is structurally incapable of doing meaningful justice. I look at this a little more closely in the conclusion.Also read: What (Extra)ordinary Citizens Said at the Lehra Do Tiranga Protest in Connaught PlaceA corollary of this blurring of functions is also that the few cases where the Court’s urgent judicial intervention is actually warranted are elided with the rest (some formal attempts at “segregating” notwithstanding). For example, the denotification of Jantar Mantar as a protest site – or even the denial of permission to protest on public order grounds – are core questions of administrative law that warrant swift judicial intervention and resolution. However, as writers like Abhinav Sekhri have previously noted, the Leviathan-maw of the Supreme Court has long swallowed up administration law into oblivion – something that is hardly helped by the phenomenon noted above.Flooding the zone and lawfareIn media theory, “flooding the zone” refers to a tactic of avoiding accountability through sheer volume: when faced with critical scrutiny, you “flood the zone” with material that is designed to cause confusion, deflection, and – ultimately – exhaustion. The ongoing Delhi protests have seen the deployment of a flooding of the judicial zone as a method of lawfare (that is, the weaponisation of law to overwhelm or otherwise politically weaken an opponent). Immediately after cases around police brutality and violence were filed, there were a series of cases that – to use a memorable Indian term – came as “counter-blasts.”Let us look at two of these cases. In one, a pregnant journalist accused the Leader of the Opposition, Rahul Gandhi, of shoving her. Let us assume, for the purposes of argument, that this allegation is true. Then, in that case, the Leader of the Opposition as committed criminal assault. For this, the normal process is a complaint before the police, the registration of an FIR, and the initiation of criminal proceedings. However, this became a case filed before the Supreme Court, and the Court issued notice “as part of” the batch of protest-related cases before it. In which functioning constitutional system is a case of criminal assault taken directly to a country’s Supreme Court?Also read: CJI Agrees to Hear Petition of Pregnant Journalist Who Claimed Rahul Gandhi Pushed HerSecondly, a petition was filed on behalf of certain traders in Connaught Place, alleging that the state-directed closures were affecting their business, and claiming compensation. Forget, for a moment, the absurdity of claiming compensation from protesters when the authority responsible for the closure is the state. Once again, even if true, this is a case for civil damages stemming out of a nuisance claim, arguably in tort law. For this, you file a civil suit and go through a trial where there is – once again – the necessity of demonstrating actual loss, causation, and so on. Yet, once again, we have a case filed in the Supreme Court, with the court itself making remarks about fixing “responsibility” on protesters. In neither of these cases is there any question raised about whether the Court has jurisdiction to hear such claims, what the appropriate forum is, and so on: these basic questions have all become irrelevant to the Indian legal system.The result, of course, is a “flooding of the zone” where cases about police brutality and violence, the right to assembly and the right to protest are now mixed in with cases about private criminal assault and tortious nuisance. This does two things. One, it ensures that the courtroom itself turns into an utterly discordant space, where every hearing takes place in an unstructured and chaotic way – something that does not have neutral impact on both sides, but actually harms efforts at accountability. And secondly, it dilutes the core focus from constitutional accountability against state functionaries, imposing a false equivalence between protesters and the state where there is none.Also read: ‘If NDMC Order Disproportionate, We’ll Act’: Supreme Court Lists Petition Against CJP Protest After VacationHere again, responsibility is shared. A well-functioning Supreme Court would relegate these petitions to their proper forums at the first time of asking. But then, the entire thrust of public interest litigation over the last four decades has been the loosening of safeguards that constrain who can approach the Court, when they can approach the Court, and for what purpose: when the answers to these three questions are “anyone,” “anytime,” and “for anything,” then you are once again throwing yourself entirely on the mercy and the discretion of individual judges, unconstrained by any external standards and principles to constrain them.ConclusionThis blog has always been highly critical of the Supreme Court. I have previously referred to it as an “executive court.” Those critiques remain, and this post is not meant to serve as a shield for the Court, or to absolve it from its responsibilities – including in the ongoing batch of cases, where its role has been rightly criticised. Criticism includes, for example, the “nudge-nudge, wink-wink” process that led to the denotification of Jantar Mantar following a judicial “consent order,” or the observations regarding who qualifies to be a journalist. There is also no doubt – as we have seen before – that the Court’s refusal to impose a modicum of order in how proceedings before it are undertaken also (as pointed out by Gopal Sankaranaraynan here) stymies accountability, as it effectively prevents structured legal arguments from being placed before the Court, and exempts the Court from having to respond to them.Also read: ‘Bench Failed to Control the Court’: Senior Advocate Withdraws From Delhi Protest Cases Before SCThe point, however is that when you place upon the Supreme Court a load that its structure and design never meant for it to discharge, it becomes even easier for an “executive court” to dismiss your claims. If “judicial evasion” has been a consistent feature of the Court’s approach, then it becomes all the easier for it to evade when you take factual disputes before it; executive deference becomes all the easier – and more defensible – when it’s your affidavit against the police’s affidavit; the language of the administrator comes far more naturally to the court when it is invited to “administer” investigations; and so on.In informal conversation about these issues, people tend to say that there is no choice in the matter: the rest of the judicial apparatus is so badly broken that there is only one feasible option, which is the Supreme Court (with the assumption that the brokenness of the judicial system does not extend to the Supreme Court, or is not felt so keenly at the Supreme Court). What this argument basically comes down to, however, is a hope and trust that we can correct for the existing distortions in our system by introducing one more distortion – something that appears to me as naive as the Supreme Court’s own infamous “hope and trust” jurisprudence. The results, too, are there for all to see: more delay more evasion, more impunity. And if doing the same thing over and over but expecting different results is the definition of insanity, then one wonders how many more rounds of this it will take before sanity hits.Gautam Bhatia is a constitutional lawyer and scholar of comparative constitutional law.This article first appeared on the author’s blog, Constitutional Law and Philosophy, and has been republished with permission.