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A fiat Gujarat could have done without

Judicial activism, admirable on such occasions as when it comes to the rescue of ill-treated undertrials or bonded labour or child workers, at times turns problematical. The Gujarat High Court's order directing the police and other authorities to "take immediate steps for the removal of encroachments by religious structures on public space without discrimination and submit their reports" held the potential for aggravating tensions in communally surcharged Gujarat. And it was this concern that prompted the Centre to take the unusual step of approaching the Supreme Court, which has stayed the High Court order. The High Court had passed the direction on the basis of a newspaper report that there were hundreds of temples, mosques, and dargahs in the cities of Gujarat which had encroached on public roads. According to one count, in Ahmedabad alone in 1998 there were 1,200 temples and 250 mosques that were encroaching on roads, while in Surat 40 places of worship had been identified as major encroachments. The High Court felt that the civic authorities, by remaining silent spectators, had contributed to the proliferation of illegal religious structures. Given the way the law and order situation spun out of control in Vadodara following the demolition of a dargah, the consequences of the wholesale and immediate demolition of religious structures ordered by the High Court could well be imagined.

That private parties should not be allowed to encroach on public space, particularly roads, is unexceptionable, and the rule of law admits of no exception for religious structures, which should be treated in much the same way as any other encroaching structure. All over the country, civic authorities who, through their indifference or corrupt acquiescence, have allowed encroachments to proliferate certainly need to be reminded of their duty to enforce the law. Yet it would be naïve to imagine that the accumulated problems of decades can be eliminated overnight by a judicial fiat. Quite apart from the question whether the State administration under Narendra Modi can be trusted to implement the High Court's directive fairly and without discrimination against all offending structures, Hindu and Muslim, the very scale of operations seems too daunting to be taken up and completed immediately. A wholesale and immediate demolition drive could well see the hapless State reeling under a series of physical confrontations between the administration and various religious groups. Again, even the worst transgressor needs to be shown some consideration by way of an opportunity to move the structure and belongings to a different location, and in cases where people are uprooted from their homes, they would need to be provided with alternative space. While a firm line can be drawn against allowing any encroachments in the future, dealing with large-scale encroachments of the type that exist in Gujarat does raise issues of public order, fairness, and compassion that need to be addressed. A court order that has given little thought to these issues is something the State could have done without.

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