In Erewhon’s court

A fictional account of a fictional judgment by a judge who for now only lives in the imagination.

PRESIDING: MR JUSTICE SIMON TEMPLER

This case concerns a spate of demolitions of houses carried out by the State Government of Ujwal Pradesh. The petitioners allege that this is the direct result of their participation in a rally held to protest the remarks made by a ruling party spokesperson that seriously offended their religious sensibilities. Counsel for the State Government contends that the petitioner’s house was illegally constructed without requisite permission and that is why the demolition was carried out.

We asked a few simple questions of fact.

When was the protest? June 10.

When was the notice of intent to demolish sent? June 11.

Was any opportunity of hearing, explanation or corrective action given? No.

How many illegal constructions exist across the State? Several lakhs.

How many have been targeted recently since the protests? 20.

Do all of them belong to protesters? Yes.

In pressing his case that this was a normal exercise of demolition that followed the usual course, it appears that counsel for the State government thinks that we as judges of the Supreme Court will forget our years of training and experience as lawyers and judges and forego the basic art of asking the key questions to elicit the relevant facts. It may also be that he thinks that we do not read the daily newspapers.

There is something known as taking judicial notice of screaming headlines.

We must often hearken back to our greatest judges to ensure that we stay firm on the right path. One of the greatest was Justice Vivian Bose. In the Supreme Court of the 1950s which had many celebrated judges, Justice Bose was acknowledged as the finest writer of judgments. One of his classics was in State of West Bengal vs Anwar Ali Sarkar. That case dealt with the validity of a Special Court for “speedier trial of certain offences”, and the accompanying provisions that abridged the rights of accused persons. The Calcutta High Court struck down the enactment since it gave the State government an absolute and arbitrary power to pick “any cases” to be sent to this process. The Supreme Court upheld 6-1, Chief Justice Patanjali Sastri finding himself in a lonely minority.

For essays in liberty and craftsmanship, the judgments of the majority deserve to form part of the mustreads for law schools, Bar education and judges at all levels. However, and not surprisingly, Justice Bose’s was the sparkling one. We set out below a few paragraphs which we believe aptly fit the case on hand. And in doing so, we thank him, for we would require many days of hard labour to come anywhere near the standards he and his companions set. (Given the mountain loads of Special Leave Petitions we are forced to read and the crushing backlog of the Court now, the time to reflect and time to write carefully is an absent commodity for our seniormost judges. Cut-and-paste formulations and contributions by law clerks are no substitute.)

“83. … the provisions of the Constitution are not mathematical formulae which have their essence in mere form. They constitute a frame-work of government written for men of fundamentally differing opinions and written as much for the future as the present. They are not just pages from a text book but form the means of ordering the life of a progressive people…

90. I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times. They are not just dull, lifeless words static and hide-bound as in some mummified manuscript, but living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case concretely much as a jury would do; and yet, not quite as a jury, for we are considering here a matter of law and not just one of fact: Do these “laws” which have been called in question offend a still greater law before which even they must bow?...

92. What I am concerned to see is not whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic can regard the impugned law, contrasted with the ordinary law of the land, as the sort of substantially equal treatment

which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into consideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it…

95. … What I have to determine is whether the differentiation made offends what I may call the social conscience of a sovereign democratic republic. That is not a question which can be answered in the abstract, but, viewed in the background of our history, I am of opinion that it does. It is not that these laws are necessarily bad in themselves. It is the differentiation which matters; the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment…

97. The law of the Constitution is not only for those who govern or for the theorist, but also for the bulk of the people, for the common man for whose benefit and pride and safeguard the Constitution has also been written…

98. … When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim… The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.” (Emphasis added)

In Anwar Ali Sarkar’s case, reference was made by the Supreme Court to the well-known US case of Yick Wo vs Hopkins. A San Francisco ordinance prohibited the carrying on of a laundry business without permission of the Board of Supervisors unless it was located in a building constructed of brick or stone. The undisputed facts on record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by persons of Chinese origin. All persons of Chinese origin were refused licence, but the 80 who were not of Chinese origin obtained them. Dealing with these facts, the US Supreme

Court observed, “Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered (italics of the Court) by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”

An evil eye and an unequal hand. Had Justice Bose been on this Bench, this is the phrase he would have used to describe the actions of the State government. And we commend this phrase to the learned counsel for the UP government and suggest that its meaning be explained to all those who run the government he represents.

Coming to relief, we are clear that no Court should stop short with learned expositions of the law. What matters is relief. That is what matters to the persons who seek redress, and that is what matters to the provisions of the Constitution which, as Justice Bose has told us, “are living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as to guide the present.” Without relief our judgments are, as he says, “just dull, lifeless words static and hide-bound as in some mummified manuscript”.

We, therefore, direct immediate cessation of demolitions of properties of protestors rallying against the alleged offending remarks of a religious nature made by some members of the ruling party. This will apply to the States of Utkarsh Pradesh, Belhy, Middle Pradesh, Gajakrat, and Uttamakhand.

We cannot be blind to the fact that persons whose houses have been demolished will be on the streets with their families. Therefore forthwith each district administration will pay the sum of Rs.1 lakh per month to the heads of each of the families till further orders.

We propose to appoint a Committee to survey and estimate the damage caused and the cost of reconstruction, and thereafter consider the question of proper restitution and damages to be paid by the State. List this matter three days hence for appointment of the Committee.

We will also keep in mind the issue of fixing liability, both punitive and personal, on officers responsible for such high-handed and partisan acts. If they have acted to side with politicians, it is appropriate that the law intervenes to teach them that government service does not mean service to persons who head governments.

And the State governments will pay costs of legal proceedings to these petitioners, measured on the scale which the government pays to its lawyers.

Let it be understood clearly that this Court is in seisin of the matter. It is after all the sentinel on the watch. While we are on duty on the watchtowers, we do not sleep. m Erewhon (an anagram of “nowhere”) is the fictional country where Samuel Butler set his satirical novel of the same name. The court, the judge, and the judgment in this piece are fictional.