‘Continuing Mandamus’ Needed to Enforce Bulldozer Justice Ban: Dr. S Muralidhar

NEW DELHI – Senior Advocate and former judge, Dr. S Muralidhar, has sounded a critical alarm on the "laxity" in implementing the Supreme Court's directives against "bulldozer justice," urging the judiciary to adopt the doctrine of "continuing mandamus" to ensure its judgments are not rendered mere paper tigers. Speaking at the launch of the book "[In]Complete Justice : The Supreme Court at 75," Dr. Muralidhar argued that without sustained judicial oversight, executive authorities will continue to disregard court orders, perpetuating the trend of punitive demolitions.

This potent critique comes nearly a year after a Supreme Court bench unequivocally condemned the practice of demolishing the properties of accused individuals as an extra-judicial punitive measure. Dr. Muralidhar's comments highlight a systemic chasm between judicial pronouncements and their on-ground enforcement, posing fundamental questions about the judiciary's role in safeguarding the rule of law.

A Judgment Without Teeth? The Implementation Gap

In November of the preceding year, a Supreme Court bench comprising Justice BR Gavai and Justice KV Viswanathan delivered a scathing indictment of punitive demolitions. The Court observed that such actions by the executive, which bypass the due process of a trial, are anathema to a constitutional democracy.

"The chilling sight of a bulldozer demolishing a building, when authorities have failed to follow the basic principles of natural justice and have acted without adhering to the principle of due process, reminds one of a lawless state of affairs, where 'might was right'," the bench had stated.

Despite this clear and forceful judgment, the practice has allegedly continued, prompting numerous contempt petitions before the apex court. Dr. Muralidhar, drawing on his seventeen-and-a-half-year tenure as a judge, lamented the institutional inertia that follows such landmark rulings. He pointed to a critical procedural failure: petitions highlighting blatant violations of the Court's directions are often not listed for hearing in a timely manner.

"You (SC) have just laid down a judgment. Somebody is coming to you and pointing out that this judgment is being violated. And that case is not listed in good time," Dr. Muralidhar stated during a Q&A session. He placed the onus squarely on the sitting judges who delivered the original verdict, arguing they have a responsibility to see their orders through. "The present Judges who have delivered the judgment have to answer this question. Because there is laxity in implementation."

The Proposed Solution: 'Continuing Mandamus' as an Enforcement Tool

At the heart of Dr. Muralidhar's proposed solution is the jurisprudential device of "continuing mandamus." This is a mechanism where a court, after delivering a judgment, does not dispose of the case entirely but keeps it pending on its docket. The purpose is to periodically monitor compliance and issue further directions as necessary, thereby compelling a recalcitrant executive to act.

"There are some issues you know, unless you keep it for monitoring before yourself, the Executive is not going to implement it due to various other considerations," he explained. "So it is up to those Judges, who delivered the Judgment, to craft the aftermath proceedings... my own feeling is that those proceedings should not be closed."

He drew a parallel with the landmark NALSA case, where the Supreme Court laid down extensive guidelines for the welfare of transgender persons. The initial judgment, while celebrated, required subsequent judicial intervention from petitioners who returned to the court, stating, "you have laid down a good judgment, but it is not getting implemented." Dr. Muralidhar argued that this reactive approach is inefficient. A proactive "continuing mandamus," he suggested, should be strategically employed in cases where implementation is complex and dependent on "corrective action by the Executive and other bodies."

"If the pressure is put off the pedal, they won't act," he added, summarizing the pragmatic reality of governance that often necessitates sustained judicial oversight.

Legal and Institutional Challenges to Enforcement

Dr. Muralidhar also shed light on the institutional hurdles that can dilute the long-term impact of a judgment, particularly after the authoring judge retires. He observed that contempt petitions can lose priority if the subsequent bench is not in complete agreement with the original decision. This creates an environment of uncertainty and undermines the finality and authority of the Supreme Court's pronouncements.

To counter this, he advised, "The Judges have to anticipate such situations and strategise." This involves building institutional memory and ensuring a seamless transition of responsibility for a case's enforcement. He cited the discontinuation of the Social Justice Bench after the retirement of Justice Madan B Lokur as an example of how judicial priorities can shift, potentially leaving crucial reforms incomplete. "When we have taken the law two steps forward, we should take it to the logical conclusion," he opined.

Implications for the Legal Fraternity and Rule of Law

Dr. Muralidhar's analysis presents a significant challenge to the legal community. For litigators, it underscores the reality that a favorable judgment is often only half the battle; the struggle for its implementation can be just as arduous. His call for "continuing mandamus" provides a potential strategic avenue for lawyers filing public interest litigations or cases involving large-scale executive action.

The issue strikes at the core of the separation of powers and the system of checks and balances. The Supreme Court's November judgment was a clear assertion of judicial authority over executive overreach, reinforcing the principle that guilt can only be determined by a court of law following a fair trial. However, if the executive can flout such directions with impunity, it erodes public faith in the judiciary and the very foundation of the rule of law.

The instance of the Supreme Court issuing a notice to a Maharashtra revenue officer—for demolishing a Muslim man's house based on an allegation that his son chanted anti-India slogans—is a stark reminder of the ongoing violations. Dr. Muralidhar’s intervention is a timely call for the judiciary to introspect and innovate its own procedures to ensure that its word is not merely the last to be spoken, but the last to be enforced. The debate he has reignited is not just about bulldozers; it is about the enduring power and efficacy of justice in India.