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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 tribunal

At 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.

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How is an appellate forum going to resolve this factual dispute? When the Supreme Court invented PIL jurisdiction in the 1980s,........

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