1.1 Law and its Publics: S. P. Sathe Memorial Panel

Session #1: Tuesday, 28 December, 9.00 - 10.45 (Chanakya 1)

Panel coordinator(s): ()

Chair/discussant: Amita Dhanda ()

Panel description

Panelists, paper titles, and abstracts

  1. Deepa Das Acevedo, Law in the Public's Interest?
  2. Jayna Kothari, Disability Rights and the Failure of Public Interest Litigation
  3. Dipika Jain/Dinesha Samararatne, Mapping the Construction of the "Public" in Public Interest Litigation and the Public Trust Doctrine in Indian and Sri Lankan Public Law
  4. Kalyani Ramnath, Terror/Tranquillity: Romesh Thapar and its Precedents Speak on the Subject of 'Public Safety'

Panel description

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Law in the Public's Interest?

Deepa Das Acevedo, Department of Anthropology, University of Chicago ()

Although the short history of public interest litigation (PIL) in India has been replete with questions about efficacy and scope, a lack of information and jurisprudential theory has meant that decisive critiques of PILs have remained rare. This paper offers such a critique via an examination of how PILs transform the relationship between the law and both citizens and the state. PIL claimants are not required to specify a personal harm; rather they identify perceived harms to society which may or may not affect them directly. Although the ability to do so seemingly empowers the public, in fact it broadens the scope of the law to an extent that is detrimental to citizens' interests. There are at least two reasons why PILs weaken citizens vis a vis the state. First, PILs extend the scope of the law so that non-legal methods of critique or resistance become increasingly obsolete. Second, PILs concentrate power in limited and non-elected officials (judges and lawyers) by redirecting disputes over governance to those who are not intended to govern. This paper will use case studies as well as recent social science scholarship to argue that despite the Supreme Court's reputation as a vanguard of liberal democracy in India, the augmentation of judicial powers that is an inevitable effect of public interest litigation is anything but liberal or democratic.

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Disability Rights and the Failure of Public Interest Litigation

Jayna Kothari, Advocate, Karnataka High Court and Researcher, Centre for Law and Policy Research ()

Public interest litigation ("PIL") began to be recognized in the High Courts and Supreme Court since the late seventies and early eighties and provided for various unorthodox remedies, such as continuing mandamus orders by the courts, and the courts┐ supervisory powers on enforcing interim orders. These remedies and enforcement measures were improved to some extent during the nineties. In the last decade however, the life of public interest petitions in the courts have taken a new avatar, with fewer instances of the courts┐ supervisory orders to ensure enforcement.

In the case of disability rights, these concerns assume greater importance. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act 2005 ("PWD Act") mainly addressed the rights to equal opportunities in employment and education to persons with disabilities. Along with the rights to equality and non-discrimination, the PWD Act also provides for several socio-economic rights such as provision of reasonable accommodation in education and employment, access to transport and the roads and provision of aids & appliances. While in individual instances of discrimination faced by persons with disabilities, the courts have been very progressive in enforcing the PWD Act, the experience of disability rights groups in public interest petitions has been very different. PILs filed by disability rights groups concerning implementation of the PWD Act with respect to access to transport and public buildings, access to employment by proper identification of jobs with reasonable accommodation and equal access to education for children with disabilities have not been very successful. In these petitions, the courts have failed to use the inventive remedies such as supervisory powers and continuing mandamus orders, to ensure effective implementation.

My paper analyses some of these cases in depth, and argues that there are several reasons for the failure of PILs in the field of disability rights. Disability rights such as provision of reasonable accommodation and access often make budgetary demands and call for state action. The issue of resources coupled with the larger issue that disability rights are still not taken seriously by the courts may be a reason for the failure of PIL for disability rights. My paper would look into these issues and attempt to suggest the way forward.

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Mapping the Construction of the "Public" in Public Interest Litigation and the Public Trust Doctrine in Indian and Sri Lankan Public Law

Dipika Jain, Jindal Global Law School/Dinesha Samararatne, Faculty of Law, University of Colombo ()

This paper seeks to examine the anxieties around the criminal trial in the age of mass media by analyzing the debates around the emerging notion of 'Trial by Media' in India. It will focus on the discursive strategies that the appellate courts deploy in dealing with this phenomenon, moving between a direct access to the public whom they claim to speak on behalf of to a disavowal of publicity and its impact on the trial process. By claiming the rhetoric of immediacy and presence in emphasizing the value of an open trial based entirely on evidence and testimony before it, the court denies the already textualised and overdetermined nature of trials represented extensively in the media, and tries to maintain the fantasy of an unmediated trial. The paper will analyse the parallel and competing tropes of immediation that get deployed by mass media and the courts and foreground these as crucial to their strategies for legitimation, particularly examining them vis-à-vis ideas of formalism and criminal procedure in common law. The question of immediation is interesting also as a point of comparison between these two regimes of truth and publicity as both are over-determined by the police 'investigation' and swing from blind reliance to fetishized suspicion on the police story, while having to perform an ambivalence towards it through direct access to the parties' testimonies. In this, they undertake the ritual of masking and unmasking the public secret that police investigations in India are all about extracting confessions through torture. These practices will be placed in the context of ideas of publicity underpinning the theory of a modern public trial process.

The paper will take as a case study the legal challenge in 2005 to the release of a Hindi film called "Black Friday" based on a book on the police investigation of the serial bomb blasts in the city still called Bombay in March 1993. The emphasis will be on critically examining how the Bombay High Court judgment, which continues to be the clearest judicial pronouncement on this issue, deals with the question of publicity, its basis being "it is just and necessary that justice must not merely be done but must also appear to have been done." The film was to have an all-India release on January 28, 2005 but could not be released because one of the accused in the trial successfully filed a case asking for an injunction against it arguing that the film in re-enacting the police investigation would pre-judge the accused as guilty and would thus vitiate the trial that was still in process. It would therefore be a "contempt of court" as it would "interfere with course of justice" and also would defame the accused pronouncing them guilty before a public audience before the court has actually done it.

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Terror/Tranquillity: Romesh Thapar and its Precedents Speak on the Subject of 'Public Safety'

Kalyani Ramnath, National Law School of India University ()

This paper aims to explore the origins of a language of rights in the context of a newly inaugurated Constitution in India. Case law in the first years of the Constitution, exhibit a preoccupation with "public safety" and "maintenance of public order" at the same time that they talk of the freedom of speech and movement that the newly made citizens of the republic are to enjoy. Several terms enter the constitutional schema here -- "public order", "public safety" and "public tranquillity" -- and are placed in a definite hierarchy as judges attempt to resolve challenges on grounds of violations of Fundamental Rights. This paper is an attempt to provide a context to this method of scaling violence that is employed by the court.

A lively discussion on what level of violence undermines the security of the state is evident in Romesh Thapar, a case filed by a newspaper involving a challenge to the Madras Maintenance of Public Order Act, 1949 on grounds of violation of Article 19 (i) (a) and decided by the Supreme Court in May 1950. The precedents that it refers to are an interesting illumination of legal-social developments in late colonial and early independent India -- including the Government of India Act, 1935, the institution of the Federal Court, the Public Safety Acts in the context of Partition and consequent communal riots in 1947- 1949 and finally, the coming into force of the Constitution -- and attempts to evolve, within a judicial decision, "citizen" from subject and separate "criminal" from cause lawyers. In what ways did the transition from colonial to popular government affect the understanding of rights in the judicial imagination, given that a majority of precedents in Romesh Thapar were pre-constitutional? Do legal precedents speak louder than the call to right historical wrongs? In what ways, to parody Foucault, might society be defended from the dangers of public disorder?

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