Supreme Court’s disdain for political parties is misplaced

On Monday, a two-member bench of the Supreme Court questioned the right of a political party to file a petition seeking the stay of a demolition of unauthorised structures in Shaheen Bagh, which had remained a nondescript, Muslim-majority neighbourhood, until its women started a sustained sit-in, to protest against the Citizenship Amendment Act (CAA) in 2019. Shaheen Bagh had then become the symbolic nerve centre of the opposition to the CAA and its proposed follow-up, the National Register of Citizens (NRC) and the herding of anyone who could not prove his or her citizenship bona fides and, thereby, figure on the NRC, into a series of custom-built detention centres around the country.

The justices had two kinds of objection to the writ petition for a stay on the demolition proposed to be carried out by the South Delhi Municipal Corporation. One, it had been made straight to the Supreme Court, whereas the first plea should have been made to the high court. Two, it had been made by a political party, rather than by the affected individuals.

Making the Supreme Court the first point to seek judicial intervention could, indeed, be dysfunctional, in most cases. But there could be circumstances in which that is the only resort that could provide justice. Whether the Shaheen Bagh demolition was one such will be revealed when the case reaches the high court.

The second objection is more problematic, the one relating to the identity of the petitioner. The Court did not like “some party” bringing the petition seeking stay of the demolition, instead of those directly affected by the demolition, although the petitioners included a hawkers’ union.

The question of locus standi

This raises some fundamental questions that have implications that go beyond the specificities of the demolition action at Shaheen Bagh. Is it the considered view of the judiciary that a political party has no locus standi to represent a section of the citizenry when they have reason to fear that their rights are being violated by the state? Should the Court only entertain petitions by individuals directly affected by state action or is it permissible for a group or an organisation to champion their cause in the court of law? This latter question is wholly rhetorical, given the rich history of public interest litigations entertained by the Court in the not-too-distant past. In which case, the Court’s objection boils down to deemed disqualification of a political party for representing aggrieved citizens.

This is misconceived, to say the least. The term ‘political party’ conjures up unsavoury images of sliver-tongued jhumla (trickery), self-seeking, self-enriching powerbrokers or musclebound wielders of unethical force. These images do ring true in many cases, but these do not define political parties. There is a whole lot more to political parties.

Political parties are the basic building blocks of democracy, who give political agency to atomised individuals by organising them into broad coalitions of support. Political parties are the instrumentality for realising representative democracy. That is why we give them tax-exempt status, land in designated areas to build offices and institutional space in the conduct of elections. Political parties form governments. They undo governments. They mobilise people for long-running campaigns, for short-term protests to make the state accept a point of view it had ignored.

While people are only too eager to curry favour with political leaders when they have some business to be achieved with the help of such leaders, they are loath to recognise political parties and political workers as wholesome, legitimate parts of our body politic. The Supreme Court, too, would appear to suffer from such myopia when it questions the right of a political party to represent the putative victims of state excess.

Political parties perfectly qualified

True, all individuals are supposed to be equal before the law. But we have some industrialists who can afford to put the entire bar on their retainership and deny their opponents a lawyer to represent them in Court. We also have people who can neither afford capable lawyers, who also tend to be expensive lawyers, nor even gain physical access to such lawyers. Such people need a mediary agency through which to procure legal representation. Such intermediaries are often voluntary organisations; at times, they are trade unions. Political parties are perfectly qualified to step into such intermediary shoes.

To deny a section of subaltern citizen judicial recourse because their cause is championed by a political party would be gross miscarriage of justice.

The Solicitor General, who represented the government, informed the Court that the demolitions were being carried out as per orders passed by the high court, and that is why the petitioners had refrained from moving the high court against the demolition activity. If that, indeed, was the case, the first objection of the Supreme Court would be groundless.

As it transpired, the petitioner withdrew the petition, accepting the Court’s directive to move the high court. The Supreme Court bench granted permission to withdraw the petition, and yet proceeded to say it had been dismissed. If a petition no longer subsists, after being withdrawn, how can it be rejected or accepted?

Arbitrary categorisation

What about illegal encroachments? What is wrong with removing illegal structures? The reality is that determination as to what is legal and what is unauthorised is quite arbitrary.

A very posh settlement of Delhi, Sainik Farms, stood as an unrecognized colony for decades. No one thought of demolishing it. Many such ‘encroachments’ are eventually regularized. Prime Minister Modi had made such recognition of ‘illegal’ colonies as the purported theme of the BJP rally at the national Capital’s Ramlila Maidan in December 2019, where he declared that his government had not discussed any move to implement a nationwide National Register of Citizens, never mind his Home minister Amit Shah’s famous ‘chronology samajhiye’ (please understand the chronology) speech, referring to the sequencing of the Citizenship Amendment Act to precede the proposed nationwide NRC. What is illegal and irregular today can be legal and regularised tomorrow. It depends on the power equations at play.

The BJP-controlled Municipal Corporations of Delhi are eager to set bulldozers rolling in the Capital’s Muslim neighbourhoods. Whether the decision stems solely from respect for the law and the zeal to enforce it is something that the judiciary could usefully examine.