There are two perceptions of law and justice: One is of law delivering justice, the other is law as justice. The state, in legislative overdrive, wants us to believe that more laws equals more rights equals more justice. In fact, there are widening fissures between law and justice. Identifying these fissures could help us mend them for better access to and delivery of justice
‘On January 26, 1950, we are going to enter into a life of contradictions,’ B R Ambedkar had prophesied. He said: ‘In politics, we will have equality and in social and economic structure, continue to deny the principle of (equality)… How long shall we continue to live this life of contradictions?... We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy…’ (1).
Contradictions continue to be the defining feature of Indian democracy today as it sits on a precipice. The constitutional promise of emancipation for all seems to have been frustrated by the scandal of the powerful and elite who have usurped both the mind-space and material-spaces where justice can be imagined and claimed. Forests, hills and rivers are being re-colonised by corporations; as Ambedkar had said, the marginalised still have no mainstream press; there is an upper-caste onslaught against reservations in institutions and jobs; violence against women and the sexually marginalised attract selective middle class outrage; streets are being sanitised of the homeless; cities are being cleansed by banishing the migrant poor; and the courts, as Justice Dwivedi had observed in 1973, ‘have become the arena of legal quibbling for men with long purses’ (2).
Despite the lived experience of the law’s fraught and very fragile relationship with justice, the poor place faith in the law to deliver them from injustice, and the law holds them captive while they are without rights. This double-binding quality of the law works to maintain the rightsless citizens’ continued faith in the state (and now increasingly the market) -- even as they are left disappointed by the law’s promises of emancipation. Despite the contradiction between the vision of emancipation that the law promises and the reality of violence that the law performs, demands for more laws to protect rights, and claims in courts for redressal of wrongs, remain the most frequent forms of public engagement for the poor and disenfranchised.
Faith in the law emerges from two sources: one is the lived experience of knowing that the law delivers justice; the other is the perception of the law as justice. We are made to understand that there is a linear progressive equation at work here: more laws equals more rights equals more justice. This is an equation that has informed and been informed by fundamental rights jurisprudence and law reform, the enactment of legislation to guarantee socio-economic rights, and many of the strategies of social movement activism in India.
The state keeps alive this equation by being in a mode of legislative overdrive, projecting new laws and law reform as primary forms of good governance. The United Progressive Alliance (UPA) government has been celebrating its pro-aam aadmi commitment by going into legislative overdrive -- by passing laws like the National Rural Employment Guarantee Act, 2005, Right to Information Act, 2005, Protection of Women from Domestic Violence Act, 2005, Right of Children to Free and Compulsory Education Act, 2009, among others -- even as it has continued its military onslaught in Kashmir and Manipur by not scrapping the Armed Forces Special Powers Act. Whenever justice is in crisis, the government enacts a law. The secret drafting and passage of the ordinance after the Delhi gang-rape and murder is a case in point.
A court for Indians?
If our faith in the Indian Constitutionhas remained even contingently intact for over 60 years, is this almost singularly owed to the Supreme Court’s efforts (in response to claims by people’s movements and social action groups) in expanding the horizons of the right to life under Article 21, as well as rescuing us from the judicial blunder of suspending the right to life made during the Emergency? As the renowned legal scholar Upendra Baxi noted in 1985 in response to the court’s judicial activism: ‘The Supreme Court of India is at long last becoming… the Supreme Court for Indians’ (3). Baxi’s optimism, however, has waned over time, and he wrote in 2002 about his disenchantment with the court: ‘This disenchantment is now more fully voiced when the still rightsless peoples… have to say even to the Supreme Court of India: “Physician heal thyself” ’ (4).
Baxi’s disenchantment is evident even after a spectacular history of judicial activism and public interest litigation (PIL) in India. The Supreme Court has time and again upheld the constitutionality of draconian laws like the Terrorist And Disruptive Activities (Prevention) Act, 1987, the Prevention of Terrorism Act, 2002, and the Armed Forces Special Powers Act. What, then, has allowed the highest court to maintain its avowed position as the ‘Supreme Court for Indians’? Has the court built on the trail-blazing history of judicial activism from the 1980s, or has it given in to the corporatised demands of liberalisation that started in 1991 to keep pace with the march of global capitalism?
One trend suggests that in deciding PIL cases where the litigant is seeking redress for socio-economic rights violations judges have become ‘reluctant to strongly penalise the government even when the state fail(s) to fulfil its statutory obligations. Instead, courts adopt… weak remedies, such as setting up committees and (commissions)’ (5). This emphasis on weak remedies marks a peculiar characteristic of legislative democracies like India, where most socio-economic rights are enumerated in the Constitutionbut are never on a par with civil and political rights. This status makes socio-economic rights non-justiciable and only progressively realisable. Given their constitutionally vulnerable status, socio-economic rights are further at a ‘systemic risk in legislative democracies because those who would benefit from them lack political power’ (6). In effect, while we might have rights-enhancing judgments from courts that interpret the Constitution expansively, these judgments do not transform structures of injustice.
A plain reading of the Constitutionsets up the spectacular potential of its design: its commonsensical distinction between fundamental rights (FRs) and directive principles of state policy (DPs). As is evident from the language used, there is a clear hierarchy between these two sets of entitlements. FRs like equality (Article 14) and life (Article 21) are worded in a way that imposes a positive limitation on state action, namely that ‘the state shall not deny to any person…’ or ‘no person shall be deprived’. On the other hand, the DPs such as work (Articles 41 to 43), education (Article 45), health (Article 47), and environment (Article 48A) are preceded by aspirational language -- ‘the state shall promote with special care…’; ‘the state shall take steps by suitable legislation…’; ‘the state shall… make effective provision for…’; ‘the state shall, within the limits of its economic capacity and development…’; or ‘the state shall endeavour to secure…’. The distinction between the two, then, is a matter of the intention with which they were inserted into the Constitutionin the first place. Regarding the DPs, B R Ambedkar noted during the Constituent Assembly Debates that it was ‘the intention of the Assembly that in future both legislature and the executive should not merely pay lip-service to these principles enacted in this part but that they should be made the basis of all executive and legislative action that may be taken thereafter in the matter of governance of the country’ (7).
Yet, the DPs were, from the beginning, imagined as entitlements that would be progressively realised, contingent upon the economic ability of the state. While the state has always put rights enshrined in the DPs on the backburner by hiding behind the fig leaf of economic incapacity, it has continued to pump money to arm the state -- to the extent of investing enough monetary resources to orchestrate the Emergency in 1975 and current emergencies spread across India.
As Radha D’Souza notes, during the first phase of the PIL years (1977-1987) the Supreme Court ‘emphasised human rights and facilitated access to justice for marginalised classes and groups’ (8). In the second phase (1988-1998) it started engaging with PIL primarily on issues of governance (9). And during the third phase, which began in 1998, ‘the (Supreme Court’s) responses to economic legislation in the wake of neo-liberal reforms, which include privatisation, liberalisation, withdrawal of the state from critical areas of decision-making, and increased federal intervention in the states among other things… raised concerns about the ramifications of PIL in the era of globalisation’ (10). Since the beginning of this phase, ‘the (Supreme Court) has upheld liberalisation and privatisation but declined to intervene in matters of redistributive justice’ (11). In doing so, the Supreme Court fashioned itself as an organ of neo-liberal governance and according to Balakrishnan Rajagopal started ‘sharing the biases of many of the goals and methods of (neo-liberal) governance itself… (like) market fundamentalism, state fetishism, and the culture-ideology of consumerism’ (12).
This turn has been substantiated through an empirical study by Varun Gauri, which shows that between 1961 and 2008, the Supreme Court’s response to socio-economic rights questions increasingly became pro-middle class and anti-poor. Among other things, success rates for disadvantaged social classes in selected FRs cases before the Supreme Court decreased drastically from 71.4% (1961-1989) to 47.2% (2000-2008). Conversely, the success rates for claimants from advantaged social classes increased from 57.9% (1961-1989) to 73.3% (2000-2008) (13). As the conclusion of this study notes: ‘The data here constitute a prima facie validation of the concern that judicial attitudes are less favourably inclined to the claims of the poor than they used to be, either as the exclusive result of new judicial interpretations or, more likely, in conjunction with changes in the political and legislative climate’ (13).
In another survey of the Supreme Court’s docket, Nick Robinson ‘finds a court overwhelmed by petitions not from poor or ordinary people but from those with money and resources. In fact, these more privileged litigants very often swamp the court using the very mechanisms that were historically justified to make it more accessible to the less fortunate’ (14). In 2007, 40% of the Supreme Court’s regular hearings were on tax, arbitration, and service issues: ‘A disproportionate number of appeals are made up of these cases, which generally involve the more affluent litigants or government lawyers (who do not bear the cost of the appeal themselves)’ (15). Robinson’s findings show that in the 1970s, around 10% of cases before the Supreme Court were fundamental rights writ petitions, of which 5% were admitted, and, in 2008, the numbers dropped drastically to 2%, of which none were admitted: ‘In 2008, the court received 24,666 letters, postcards, or petitions asking its intervention in cases that might be considered public interest litigation. Of these, just 226 were even placed before judges on admission days, and only a small fraction of these were heard as regular hearing matters. The rest were rejected’ (16).
This drop might have had a lot to do with an articulated stand by successive governments and many political parties that have frowned upon judicial activism allegedly usurping the turf of the executive (17). The present UPA government has even proposed a national litigation policy to claim damages from those who file frivolous PILs. This move comes at a time when it is well-known that it is neither poor communities nor human rights activists who file PILs on their behalf but rather the state that is the most active litigant (18). The troubling concern here is that the PIL has turned into the proverbial Frankenstein that the state is unable to control -- which is why the state needs to discredit it forcibly. This is bad news for the rightsless, for whom PIL seemed to be the most powerful means of gaining at least recognition and visibility, if not emancipation and justice.
Who delivers justice?
The PIL in many ways served as an alternative path to justice delivery, particularly for the poor and powerless. The mainstream path is expensive, legalistic and has for long been overwhelmingly crowded. As of 2010, there was a backlog of 31.28 million cases pending in various courts including high courts in the country, which would take 320 years to clear (19). The situation certainly hasn’t improved in 2013. We have seen a range of governmental innovations -- from lok adalats to fast-track courts to specialised courts for family and consumer disputes to commissions to out-of-court settlements through arbitration and conciliation and state legal aid services to name a few -- as attempts to tide over the enormity of this backlog and enable swifter access to justice. Yet, all of these alternative routes are beset with deep problems, and seem to have made access to justice more complicated, bureaucratic and cumbersome. The problems with alternative routes are not only functional but also structural: absence of adequate funding for many of these systems, inherent biases towards marginalised groups and individuals who approach them seeking remedy, and lack of collective commitment to social justice.
After the December 2012 gang-rape and murder of a 23-year-old physiotherapy student in Delhi, the government quickly set up fast-track courts to try rape cases, as if the speed with which rape cases were disposed of were all that mattered. There was scant mention of how trials would be conducted in these new structures and whether these fast-track courts would be any different from regular courts in their attitude towards the rape victim. While ‘speedy trial’ became the buzzword bandied about by the state, the very nature of the trials, which victims found humiliating and traumatising, was left untouched by the ‘reforms’. The cosmetic nature of the state-initiated alternatives is further illustrated by the example of the family courts. Family courts were set up in several metropolitan cities through the 1990s with the hope that these alternative courts would prioritise ‘justice’ over ‘legality’ in marital disputes, so that women, who by and large have a weaker bargaining position in such disputes, do not always end up with unfavourable outcomes. It was hoped that without the involvement of lawyers, litigants and especially women would be enabled to place their concerns before the courts and would have better control over their own cases. This is what anthropologist Srimati Basu observed in a recent article based on her study of a Kolkata family court:
‘In the family courts, lip-service is paid to alternate legal methods, but judges and counsellors still work in the ways in which they themselves were disciplined to learn about rights or entitlements. Litigants are subjected to judges’ directions and are expected to be best represented through the judge’s mediation rather than their own. In fact, it could be argued that this format has vastly increased judges’ unilateral powers in exchange for lawyers’ and has fewer checks and balances. Those litigants with few educational and financial resources are at a further disadvantage, unable either to perform satisfactorily in court or to hire lawyers for a potentially better outcome’ (21).
Similar accounts are provided of other alternative justice mechanisms by a number of pieces in this issue of Agenda. The failure of many of these state-generated justice delivery mechanisms, along with a near collapse of the court system under the burden of backlogs, has led to the amplification of two extra-constitutional systems of justice delivery in modern India: first is the likes of the khap panchayats, which have dared to continue issuing their violent, patriarchal and casteist diktats; and the rise of what can be called ‘SMS justice’, where it is the 24/7 news media that turns into a courtroom, the accused is publicly on trial (without being able to defend him/herself) and anybody gets to play judge and jury by just sending SMSs to opinion polls. Take an opinion poll that The Times of India published in the wake of the Delhi gang-rape and murder. The poll asked the question: ‘What’s the punishment for a man who takes away a woman’s life, while she is still alive?’ The copy of the advertisement identifies the assailants as ‘shameless maniacs’ and ‘inhuman criminals’. The options that you can choose to SMS include death sentence, bobbitisation and chemical castration. Even before the actual trial had started, polls like these and paranoid TV programmes at primetime fuelled the national bloodlust of angry protestors, a majority of whom were demanding that the accused be sent to the gallows. None of these protestors spoke up in defence of Afzal Guru and his illegal execution.
Are we caught between the deep sea of never-ending legal entanglements and the devil in the form of the state (and corporation and media)?
Where do we look for justice?
The aim of this issue of Infochange Agenda on law and (in)justice is not to disparage or dismiss the law’s connection with justice. That would be both an exercise in futility, given the hope that people’s struggles rest in the law, as well as politically dishonest, given our contingent belief in the ability of the law to deliver at least a semblance of justice. This issue brings to the fore the enormous and ever-expanding fissures that mark the terrain between law and justice, and the apathy and assaults that make these fissures grow wider with each passing day.
The identification of these fissures will caution both the aggrieved as well as those working with them about how not to be fooled by the law’s hollow promises of justice, and it will equip us to mend the fissures for better access to and delivery of justice. This recognition is essential for those who engage the law for the sake of claiming justice, as well as for calling its bluff: a strategic juggling that we continue to do as law and its afflictions give shape and meaning to our lives and ideas of justice. A critical dissection of the law’s connections with justice is also a means to identify the limits of legal justice: of what it can and cannot do and how much of our struggles should invest in seeking legal redress. Clearly, there are experiences of injustice that the law cannot address adequately, and calling on the law to respond to such experiences will only leave us disillusioned and disenchanted about the law. Knowing this limit can allow us to search for other repertoires of redress: some of which include community-based support networks, collective actions of solidarity, and, most powerfully, experiences of the quotidian: squabbles, laughs, negotiations, leisure. It is in the everyday and ordinary that many of the contradictions that Ambedkar pointed at get addressed, if not resolved, and that has saved our democracy from being blown up by the sufferers of injustice.
However, recognition of the quotidian should not take our attention away from the violence of the state, and the imperative to hold it constitutionally accountable. This has become increasingly difficult because that state has been conveniently withdrawing from a range of areas to allow private capital to step in. Which is why in our collective struggles against injustice, we need to start looking at the state and the corporation as part of a compact: in which the state clears the space for corporate capital’s takeover, using violent laws like the Land Acquisition Act, and then profits from the corporation’s exploits over the natural resources of indigenous populations.
Leftist views on resisting private capital, and bringing the state back in, have become inadequate in responding to the deep intimacy between the state and corporations. As the French historian Ferdnand Bruadel sharply observed: ‘Capitalism only triumphs when it becomes identified with the state, when it is the state’ (22). In such a situation corporations have great influence on what the state decides and legislates. Our justice-seeking strategies need to be attentive to this state-corporation compact, and not set up the binary of the state as benevolent and the corporation as evil. They’ve become two sides of the same proverbial coin, and we cannot let the state absolve itself of responsibility by saying that private actors like corporations are responsible for harms done.
There is adequate brutal evidence of the history of suffering and consequent legal struggles -- from Bhopal to Nandigram to Niyamgiri to Kalinganagar to Narmada to Koodankulam and beyond -- that should provide us enough caution and inspiration about what role we want the law to play in getting us justice. Indeed, whether we want it to play any role at all.
(Oishik Sircar is a lawyer, academic and documentary filmmaker, and presently a Teaching Fellow at the Institute for International Law and the Humanities, University of Melbourne)
(Saptarshi Mandal is a lawyer and researcher based in New Delhi. He researches and writes in the areas of sexual violence, feminist legal theory and disability rights)
1 B R Ambedkar, ‘The Future of Parliamentary Democracy’, in Barbara R Joshi, ed, Untouchable! Voices of the Dalit Liberation Movement (London: Zed Books, 1986) at 40
2Kesavananda Bharati Sripadagalvaru and Ors vs State of Kerala and Anr (1973) AIR 1461
3 Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985), Third World Legal Studies 107 at 107
4 Upendra Baxi, ‘Preface’ in S P Sathe, Judicial Activism in India: Transgressing Border and Enforcing Limits (New Delhi: Oxford University Press, 2002) i at xvi-xvii (emphasis in original)
5 Shylashri Shankar and Pratap Bhanu Mehta, ‘Courts and Socio-Eeconomic Rights in India’ in Varun Gauri and Daniel M Brinks, eds, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge, NY: Cambridge University Press, 2008) 146 at 147
7 Constituent Assembly of India Debates -- Vol VII (Friday, November 19, 1948) available at http://parliamentofindia.nic.in/ls/debates/vol7p9.htm
8 Radha D’Souza, ‘The “Third World” and Socio-Legal Studies: Neo-Liberalism and Lessons from India’s Legal Innovations’, (2005) 4 Soc & Leg Stud 487 at 488
11 Id, at 506
12 Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ (2007) 8 Human Rights Review 157 at 180
13 Varun Gauri, Public Interest Litigation in India: Overreaching or Underachieving? (Working Paper No 5109) (Washington: The World Bank, 2009) at 16
14 Ibid, at 13
15 Nick Robinson, ‘Hard to Reach’, Frontline 27:3 (February 12, 2010)
18 Seetha, ‘Turf Tussle -- “Judicial Pronouncements Have Ranged from the Divine to the Comical” ’, The Telegraph (December 24, 2006); TNN, ‘Judiciary Shouldn’t Undermine Executive PM’, The Times of India (February 7, 2011)
19 Anindo Dey, ‘Government the Biggest Litigant in the State’’, The Times of India (February 10, 2009)
21 Srimati Basu, ‘Judges of Normality: Mediating Marriage in the Family Courts of Kolkata, India’, Signs, Vol 37, No 2, Unfinished Revolutions, a special issue edited by Phillip Rothwell (Winter 2012), pp 469-492 at 489
22 Ferdnand Braudel, Civilisation and Capitalism, 15th-18th Century: The Perspective of the World, Vol 3 (University of California Press, 1984), pp 64-65 (emphasis provided)
Infochange News & Features, March 2013