Session #6: Sunday, 11 January, 10.00 - 11.45 (CSLG)
Panel coordinator(s): Siddharth Narrain, ALF (siddharth.narrain@gmail.com)
Chair/discussant: Sitharam Kakarala, Director, Centre for the Study of Culture and Society, Bangalore (ramsk@cscs.res.in)
Panel description
Panelists, paper titles, and abstracts
One of the troubling questions before legal academics, lawyers and activists following judicial trends in India has been how to go about the task of providing an account of the “conservative shift” of the appellate judiciary in India within a larger political economy narrative that seeks to locate the precise manners in which these changes are taking place via the emergence of a judicial sovereignty that does not merely adjudicate any longer but actively produces the context and conditions for a free-market friendly environment. This panel aims to take forward the questions framed at the Judicial Nineties Workshop in Bangalore by addressing the following questions:
An influential mode of analysis of the Indian appellate courts has been to explain trends of decision making in terms of shifts in political economy of the Indian state. In such an account the judicial artifact is usually taken as a stable object that external “larger” social, political or economic factors act upon. Substantive trends are seen as the focus while the procedure underpinning them, if discussed at all, is seen as purely instrumental. This paper will try to argue that the post-emergency appellate courts in India in general and Public Interest Litigation (PIL) in particular cannot be adequately understood without examining the changes in the appellate judicial process itself. This paper will make an attempt in this direction by foregrounding processual trends and innovations. The questions that the paper will aim to address include:
The analysis will be done as a genealogy of the PIL-based intervention in regulating urban space, focusing on the judicial conditions of possibility for the emergence of RWAs as the ideal-typical public of PIL in Delhi.
While allowing the work on the Sardar Sarovar Project to go on, a three-Judge Bench of this said that (i) displacement of the tribals and other persons would not per se result in violation of their fundamental or other rights; (ii) on their rehabilitation at new locations they would be better off than what they were; (iii) at the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets; and (iv) the gradual assimilation in the mainstream of the society would lead to betterment and progress. The Court used the principle of sustainable development to come to this conclusion.
More than eight years on, in the Vedanta judgment, the Supreme Court, while allowing the project to mine in the ecologically sensitive Niyamgiri hills, used the principle of sustainable development based on intergenerational equity (i.e. the need for courts to balance development with the protection of environment and ecology) to come to its decision. The Court, while giving its decision overruled objections by the Central Empowered Committee (CEC) that the proposed Alumina Refinery would be totally dependent on the mining of bauxite from the Niyamgiri Hills in Lanjigarh, which is habitat for wildlife and the home of tribes like the Dongra Kandha.
While these are just two examples of the way the courts have dealt with challenges to large development projects, they are decisions that have a far-reaching impact on the relationship between social movements and the law, the faith of environmental movements in the judiciary and the public discourse around developmental projects that have been opposed by strong local environmental movements. Commenting on the how the discourse of ‘development’ has been used by planners to “launch a whole range of assaults on forms of life and ‘nature’ ”, Upendra Baxi argues that it is time we asked the questions, “Who may develop whom and how does this class of developers relate to the class of developees? Why is it that the class of developees always asks the developers why they should bear their present generational sufferings in good grace, as custodians of better life-prospects for their children and grandchildren?”
Looking through the lens of appellate judgements concerning large infrastructural projects with that have been opposed on grounds of the destruction of forms of ‘life’ and ‘nature’, this paper explores the manner in which the discourse on development has been used by the appellate courts to decide cases that involve socio-economic rights. This paper seeks to ask if there is there a link between development and justice in the court’s logic, or rhetoric? If there is, how do courts make this link? What other legal discourses, principles and tools that the appellate judiciary has used to reposition the language of agency, rights and capabilities using the language of development? This paper will draw upon the text of Supreme Court and High Court decisions in the period between 1990 and 2008, as well as relevant petitions and affidavits in a few of these to explore the manner in which the judiciary has dealt with the idea of development in relation to large projects that have disastrous implications for the environment and indigenous people’s rights.
Accounts of the Supreme Court in the Nineties speak of its complicity with the neo-liberal project and the peculiar role it has appropriated for itself in determining socio-economic policy that will enable India to realize its true potential as a global power. The account is, at times, one of disruption – the Baxian fear of nomenclature comes true with ‘public interest litigation’ inverting cruelly the logic of the ‘public’ and the ‘private’ as is best exemplified in Almitra Patel where suddenly the private are the homeless and the public the taxpaying numbers. At other times, the account is also one of continuity – some have argued that the foundational violence that marked the making of the Constitution inscribes in it the temporality of crisis as frozen time keeping the postcolonial from coming into being in eternity until all threats to the sovereign body from within are laid fully to rest. The form of this ‘threat’ is an empty signifier – it is at one moment the communist, at another the terrorist and at a third the illegal citizen of the city. The Nineties then witnesses the inscription of a socio-economic ability for the citizen to come into being – the displaced, the landless, the impoverished come to stand in for the putatively menacing citizen body that the sovereign needs to compete against to access to itself a global purchase.
The spectre that hovers over this account is that ultimate artifact of the postcolonial nation-state: the Constitution. At times, an instrument that lays out the structure and mechanisms of the Indian state and at others, a symbolic and persuasive force, the Constitution becomes more than the sum of its parts and, in the postcolonial moment, comes to stand in for the ethical dimension of the nation. It becomes the touchstone by which the ‘good’ ‘nation/’state’/‘democracy’/’citizen’ will be measured and even produced.
In this paper, I want to return to the Constitution in the account of the many forces at work in the Judicial Nineties to ask of it two specific questions:
My paper seeks to engage with the outlined themes by first examining the debate over the changing nature of the Indian Supreme Court’s record on Public Interest Litigation (PIL) since the nineties. This debate focuses on whether the judiciary has undergone a transformation, and has become more conservative since the 90s. Accordingly, the first part of the paper focuses on some prominent academic critiques of PIL, which make the case for ‘the conservative turn’ and provide normative arguments disapproving of this trend. While I have much sympathy for this position, I believe that these critiques are motivated by unrealistic – and misguided - expectations from the judiciary. My attempt will be to demonstrate how progressives should view the role of a judiciary in advancing their goals, and the strategies that can be adopted to push the judiciary towards steps that are achievable. This, I would argue, should be preferred over other strategies which have the effect of saddling the judiciary institution with undeliverable – and, in some cases, erroneous - expectations.
To pursue these admittedly ambitious – and, perhaps, undeliverable – goals within the space of a single paper, the second part of the paper will focus on debates among constitutional theorists about the proper role of a judiciary in a democracy. I will also review debates among progressives about the role that judiciaries can play in helping social movements achieve progressive goals. For this part, I will draw heavily on comparative experiences with judicial review, and current debates in comparative constitutional theory and practice. In particular, I will focus on more recent debates about the relationship between social movements and the law in the United States, the jurisdiction which has historically provided inspiration to activist groups in India. I will also seek to draw lessons from a broader comparative canvas on this specific issue.