here - Journal of Indian Law and Society

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Journal of
IndIan law and SocIety
Volume V
Monsoon
[Mode of Citation: 5 (Monsoon) JILS (2014)]
[Vol. 5: Monsoon 2014]
The W.B. National University of Juridical Sciences
Dr. B.R. Ambedkar Bhavan
12 LB Block, Sector III, Salt Lake
Kolkata-700 098, India
Journal of
Volume V
Monsoon
E DITOR-IN-C HIEF
Prof. (Dr.) P. Ishwara Bhat, Vice Chancellor, NUJS
FACULTY A DVISORS
Lovely Dasgupta, Assistant Professor of Law
Ruchira Goswami, Assistant Professor of Sociology
Saurabh Bhattacharjee, Assistant Professor of Law
G R ADUATE A DVISORY B OARD
Kalyani Ramnath
Ph.D. Candidate in History
Princeton University
Madhav Khosla
PhD Candidate in Political Science
Harvard University
Anuj Bhuwania
Assistant Professor
Jindal Global Law School
Rohit De
Assistant Professor
Department of History, Yale University
Moiz Tundawala
Research Associate
National Law University, Delhi
Satya Prateek
Senior Research Associate
Swethaa Ballakrishnen
PhD Candidate in Sociology
Stanford University
Saptarshi Mandal
Assistant Professor
Shibani Ghosh
Senior Research Associate
Centre for Policy Research
Sanhita Ambast
India Campaigner
Amnesty International
Uday Chandra
Post-Doctoral Fellow
Max Planck Institute
Gautam Bhatia
Law Researcher/Judicial Clerk
High Court of Delhi
Rishad Ahmed Chowdhury
J.S.D. Candidate
University of Chicago Law School
Saptarishi Bandopadhyay
S.J.D. Candidate
Harvard Law School
Rahul Verma
PhD Candidate in Political Science
University of California, Berkeley
Mathew John
Assistant Professor
Journal of
Volume V
Monsoon
E DITORIAL B OARD 2014-15
E XECUTIVE E DITOR
Vasujith Ram
A RTICLES TEAM
Editors
Ayani Srivastava
Meenakshi Kurpad
Chitwan Singh
Tanaya Sanyal
Gayatri Loomba
Associate Editors
Avani Chokshi
Sandeep Ravikumar
Nikita Kapoor
Stuti Bhatnagar
Saasha Malpani
Research Assistants
Kshitij Maheshwari
Pranav Sethi
Praanav Gupta
Nipasha Mahanta
C ITATIONS TEAM
Editor : Arpita Sengupta
Associate Editor : Prafful Goyal, Rishika Lekhadia
Journal of
Volume V
Monsoon
Contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Special Editorial Note: On Uniform Civil Code,
Legal Pluralism and the Constitution of India
M.P. Singh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
L ECTURE
From Bhopal to Saha: The Elusive Promise of
Effective Legal Remedy
Marc Galanter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
OBITUARIES
A Rare Judge
P.P. Rao . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Granville Austin: A Tribute
Upendra Baxi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
A RTICLES
Assessing the National Green Tribunal after Four Years
Armin Rosencranz & Geetanjoy Sahu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Bhopal Gas Tragedy: Paternalism and Filicide
Shruti Rajagopalan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Contradictory Tendencies: The Supreme Court’s NALSA
Judgment on Transgender Recognition and Rights
Aniruddha Dutta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Resurrecting the Other of ‘Modern’ Law: Investigating
Niyamgiri Judgment & Legal Epistemology
Amit Bindal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Law and the Obscene Image: Reading Aveek Sarkar v.
State of West Bengal
Latika Vashist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
B OOK R EVIEW
Pursuing Elusive Justice: Mass Crimes in India
and Relevance of International Standards
Kalpana Kannabiran . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
India’s Rights Revolution: Has it Worked for the Poor?
Jackie Dugard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
The Informal Constitution: Unwritten Criteria in
Selecting Judges for the Supreme Court of India
Tasneem Deo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Journal of
Volume V
Monsoon
Foreword
This issue begins with a Special Editorial Note titled Uniform Civil
Code, Legal Pluralism and the Constitution of India, where Professor M.P.
Singh examines the Uniform Civil Code (UCC) in light of legal pluralism and
Constitutional law in India. He argues that similar to the Supreme Court’s
prioritisation of some Fundamental Rights, the Directive Principles of State
Policy may also be stratified. Thus, Article 44 (Uniform Civil Code) need not
be attended to on a priority basis. He then concretizes his arguments with evidence from court judgments, constituent assembly debates and social science
literature. He opines that he can wait until a consensus is reached, in the light
of our fundamental duty to respect religious diversity.
Marc Galanter, in his paper From Bhopal to Saha: The Elusive Promise of
Effective Legal Remedy (presented at the 2nd M. K. Nambyar Memorial Lecture
here at NUJS), argues that there is a need for a ‘second coming’ of tort law. By
taking us through the legal narratives of the Bhopal gas disaster, the Upahaar
fire tragedy and Saha medical negligence case, Galanter highlights the injustice
of tort law in India and the inadequacy of the judicial response. He finds that
the Bhopal case and the Upahaar case, both cases of mass injury, did not lead
to any exemplary response from the Indian judiciary, whereas an exceptional
compensation was award in the Saha case, which was in the nature of a oneon-one litigation. He makes a case for selective reform in the nature of procedural practice, since the present trend of low rate of filing claims, long delays
and meagre awards upset the preventive goal of tort litigation.
In this issue, we also carry two obituaries. Two inspirational and influential personalities in our constitutional world, Justice Krishna Iyer and Granville
II
JOURNAL OF INDIAN LAW AND SOCIETY
[Vol. 5 : Monsoon]
Austin, passed away last year. In his piece, A Rare Judge, P. P. Rao, Senior
Advocate of the Supreme Court, reflects on Justice Krishna Iyer’s contributions
to the various facets of law and his judicial philosophy. His style of justice, his
innovations, sympathies and judicial behaviour are the subject-matter of discussion. Describing him as an “institution”, Rao opines that his adjudication
was based on his “insatiable hunger for socio-economic justice”. In Granville
Austin: A Tribute, Upendra Baxi examines the academic work of the late
Austin, an eminent and frequently cited constitutional historian. Beginning
by describing his work as “well-known” but not “well-studied”, Baxi revisits
Austin’s two books on constitutional history, arguing that the historian’s opinion of the constitutional development and working was a view from the ‘top’,
and that there is a pressing need to appreciate subaltern perspectives on Indian
constitutionalism.
In Assessing the National Green Tribunal after Four Years, Armin
Rosencranz and Geetanjoy Sahu examine the National Green Tribunal (NGT),
its structure, jurisprudence and adjudicatory patterns. In addition, the implementation of its orders and the implications are also analysed. The authors
conclude that the NGT has redefined environmental litigation in India and
has largely been a progressive adjudicatory authority, with speedy disposal of
cases and effective implementation of orders.
In commemoration of the thirtieth anniversary of the Bhopal Gas
Tragedy, Shruti Rajagopalan in Bhopal Gas Tragedy: Paternalism and Filicide
analyses the failure of the Indian state in providing due compensation to the
victims of the heinous disaster of December 1984 in light of the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985. She critically examines the
Act from an economic point of view and argues that by replacing the adversarial system, the Act has inserted in its place an inquisitorial state bureaucracy
which has seriously hampered recovery and claims and has led to delayed compensation for the victims.
Aniruddha Dutta, an activist-scholar from the University of Iowa has
contributed a piece entitled Contradictory Tendencies: The Supreme Court’s
NALSA Judgment on Transgender Recognition and Rights. Dutta analyses the
landmark NALSA judgment from an interpretational and definitional point
of view, highlighting the various contradictions and contestations running
through the judgment.
In Resurrecting the Other of ‘Modern’ Law: Investigating Niyamgiri
Judgement & Legal Epistemology, Amit Bindal explores the thematic linkages
between the law and the mythic tradition by an analysis of the Niyamgiri case.
FOREWORD
III
While the article appraises the Court’s approach to tribal rights and justice, it
also cautions of the limits of the modern liberal framework that is the basis of
adjudication in this case. He argues the importance of maintaining a distinction between the modern and the mythic in light of development and protection of tribal rights and tradition.
In her case comment on Aveek Sarkar v. State of West Bengal, Latika
Vashist examines the shift from the ‘Hicklin Test’ to the ‘community standards test’ in the determination of obscenity under law. In her analysis of the
context-driven approach of the court, she argues that when the Law comes in
contact with aesthetics, erotica or feminism, which she describes as the ‘Other’
of Law, the pure reason of Law is corrupted by emotion, as in the present case.
This issue features three book reviews. Kalpana Kannabiran reviews
Pursuing Elusive Justice: Mass Crimes in India and Relevance of International
Standards, edited by Vahida Nainar and Saumya Uma. The book focuses on
the struggles of human rights and civil liberties in light of major episodes of
state violence and mass crimes in the post-colonial era. She values the book for
examining accounts of impunity which highlight the pervasiveness of the problem and appreciates arguments presented by authors with respect to the definition of “persecution” as defined by the Rome Statute. She assesses the volume
as a cluster of essays which highlight the need for law reform in gender-based
crimes in episodes of mass crimes and violence. The second review is by Jackie
Dugard of S.K. Das’ book titled India’s Rights Revolution: Has it worked for
the poor? The book examines rights in India in light of four major legislations,
i.e., the Right to Information Act, the National Rural Employment Guarantee
Act, the Forest Rights Act and the Right to Education Act. She appreciates
the book for being highly informative as well as providing an in-depth examination of the socio-economic data associated with the implementation of
the aforementioned laws. However, she points out that the critique failed to
analyse the efficacy of alternative modes and frameworks as well as focus on
groups which require recognition of their rights to overcome their struggles.
A third book review by Tasneem Deo examines Abhinav Chandrachud’s The
Informal Constitution: Unwritten Criteria in light of the renewed interest in
judicial appointments to India’s constitutional courts post the passing of the
corresponding constitutional amendment and the operationalizing statute.
While appraising the author for successfully identifying the trends in judicial
appointments, she highlights the absence of sufficient theoretical explanation
for the informal norms and the possibility of alternate explanations of the
trends identified.
IV
[Vol. 5 : Monsoon]
We are grateful to our Editor-in-Chief, Prof. Dr. Ishwara Bhat, for his
encouragement, support and positive attitude towards our proposals. We are
indebted to our faculty advisor, Mr. Saurabh Bhattacharjee, who is a friend,
philosopher and guide for the Journal and its members. We regularly consult
the members of the Graduate Advisory Board for their views and expertise
and they have very kindly responded to us promptly. Marc Galanter, Rukmini
Sen, Moiz Tundawala, Siddharth Narrain, Gautam Bhatia, Satya Prateek,
Saptarshi Mandal, Nick Robinson, Priya S. Gupta, Stephanie Booker, Kanchi
Kohli, Rohit De, Lakshmi Arya, Mayur Suresh, Nandan Nawn, Soumya Sahin
and Kalyani Ramnath have served as peer reviewers – and we wholeheartedly
thank them for their time. We owe deep gratitude to the Journal’s readers and
their constant feedback.
—The Board of Editors
Journal of
Volume V
Monsoon
Special Editorial Note
On Uniform Civil Code, Legal Pluralism
and the Constitution of India†
—M.P. Singh*
I. UNIFORM
CIVIL CODE
Article 44 of the Constitution, which is central to the discussion, reads:
Uniform civil code for the citizens—The State shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India.
It is one of the Directive Principles of State Policy (DPs) which are not
enforceable in any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws.1 I have consistently argued that
though DPs are not justiciable they are as much part of the Constitution as
the Fundamental Rights (FRs) and, therefore, they deserve as much attention
and importance as the FRs do.2 The Court has also held that not only the FRs
†
*
1
2
This paper was earlier presented at conference organized by Majlis, entitled “Negotiating
Spaces: Uniform Civil Code… Inclusions and Exclusions” on 8-9 November, 2014 at
Mumbai.
Chair Professor, Centre for Comparative Law, NLU, Delhi. Former Vice Chancellor, NUJS,
Kolkata and Professor of Law, University of Delhi.
Constitution of India, art. 37.
See, among others, M.P. Singh, The Statics and the Dynamics of the Fundamental Rights and
the Directive Principles – A Human Rights Perspective, 5 Supreme Court Cases (Journal) 1
(2003).
VI
[Vol. 5 : Monsoon]
must be harmonised with the DPs but such harmony is one of the basic features of the Constitution.3 But the Court has also stratified some of the FRs.
Some of them like Articles 14, 19 and 21, which are held part of the basic
structure; the DPs are also capable of such stratification. For that reason some
of them have been shifted to the chapter on FRs such as original Article 45
or others like Article 39 (b) and (c) have been given priority over some of the
FRs. But priority to all of them over some of the FRs was found against the
basic structure of the Constitution.4 Accordingly, in my view, while DPs such
as in Articles 38, 39, 39-A, 41, 43, 47need to be attended on priority basis
the ones like in Article 44 or Article 49 may wait until appropriate opportunity comes for their realisation. That is the reason that after having expressed
some urgency in Sarla Mudgal v. Union of India5 for the realisation of the goal
in Article 44 it disclaimed having expressed any such urgency in Lily Thomas
v. Union of India6 and John Vallamattom v. Union of India7. Earlier in Mohd.
Ahmed Khan v. Shah Bano Begum 8 an attempt by the Court to give relief
to a Muslim woman in the light of Article 44 boomeranged requiring the
Parliament to take remedial step in the form of Muslim Women (Protection of
Rights on Divorce) Act, 1986. The Act may have given a better protection to
Muslim women than she had before under the Muslim law, but in my view it
is a step not in the direction but rather against the uniform civil code. Perhaps
taking a leaf from this event the coalition government at the Centre led by
Bharatiya Janata Party (BJP), the party which normally asks for the implementation of Article 44, did not take any steps in that direction during its tenure
from 1999 to 2004. Its manifesto for the 2014 general elections says:
“Article 44 of the Constitution of India lists Uniform Civil Code as
one of the Directive Principles of State Policy. BJP believes that there
cannot be gender equality till such time India adopts a Uniform Civil
Code, which protects the rights of all women, and the BJP reiterates
its stand to draft a Uniform Civil Code, drawing upon the best traditions and harmonizing them with the modern times.”
This time, unlike ever before, it has absolute majority in Parliament, but
I doubt that in the light of the past experience as well as its commitment to
other more important issues facing the country it will pursue this matter.
I say this because equality of women was the main reason for some of
our women members in the Constituent Assembly to get Article 44 introduced
in the Constitution. In their minds the issue of Hindu women was more
3
4
5
6
7
8
Minerva Mills v Union of India, (1980) 3 SCC 625.
Id.
Sarla Mudgal v Union India, (1995) 3 SCC 635.
Lily Thomas v Union of India, (2000) 6 SCC 224.
John Vallamattom v Union of India, (2003) 6 SCC 611.
Mohd. Ahmed Khan v Shah Bano Begum, (1985) 2 SCC 556.
EDITORIAL NOTE
VII
predominant than the issue of Muslim women. The multiplicity of Hindu
law was resulting in the inequality of women on several issues, particularly of
property. Therefore, they wanted this law to be reformed and made uniform
for all Hindus. As a matter of fact even that law has not yet been able to give
equality to women vis-à-vis men in all matters for a number of reasons, which
initially led Dr. Ambedkar to resign from the Union Cabinet. Statistically, the
way Hindus are defined in the Constitution and in other relevant laws, the
law reform would have covered more than eighty-five per cent of the population. But the sufficient political will and support has not been available even
for that.
Moreover, the realisation of the goal of equality for women is not realisable by law alone. Whatever laws, including the Dowry Prohibition Act, 1961,
Section 498-A of the Indian Penal Code, 1860, the Protection of Women from
Domestic Violence Act, 2005 and the Hindu Succession Act, 1956 as amended
in 2005 have not been able to give much relief to women. Much needs to be
done for the social and economic empowerment of women before they are able
to take any advantage of any laws ensuring equality to them.9
Some members in the Assembly like K.M. Munshi spoke of Muslim
law reforms and cited the example of Turkey and some other Muslim countries in the Middle East and Arab world.10 Apart from Muslim members of
the Assembly taking objection to it, the facts about the Muslim world are
not uniform. India was never with Turkey on this issue and there were and
still are several Muslim countries which have not changed their Sharia law on
this issue. In this regard it is also notable that unlike other religions, Koran
provides a complete code of law which is as much part of revelation as other
aspects of that religion. Therefore, it can be changed or improved only in
accordance with the method provided in that law. Considering the right to
religion not only of individuals but also of groups and secularism as sarvadharamasambhava, including not only non-interference but also support to minority religions to enable them to come at equal level, any change in Muslim law
without taking Muslims into confidence on this issue may be found unconstitutional. In view of our record so far, I hope we will not venture to do
otherwise.
One of the reasons for my foregoing assertion is the change in our legal
and political culture since the making of the Constitution. Until mid-20th
9
10
There is social science literature indicating that women’s access to legal rights depend largely
on their socio-economic position rather than the religion that they belong to. See Zoya
Hasan and Ritu Menon, Unequal Citizens: A Study of Muslim Women in India
(2004), Patricia Jeffery, A Uniform Customary Code? Marital Breakdown and Women’s Economic
Entitlements in Western UP, in Social and Political Change in Uttar Pradesh:
-European Perspectives 77-101 (Roger Jeffery and Jens Lerche eds., Manohar, New Delhi
2003).
Constituent Assembly Debates, Volume VII (Nov. 23, 1948).
VIII
[Vol. 5 : Monsoon]
century the wave of nationalism which started towards the end of 18th century
and reached its zenith by the end of the 19th century in the West, had also
entered India during the national struggle for freedom in the early part of the
20th century evidently in Mahatma Gandhi’s swaraj and swadeshi movements
and the goal of involving masses up to the last person in the country in the
struggle. Although it was strongly criticised by Tagore leading to exchange of
somewhat bitter letters between him and Gandhi, it had its sway in the country’s politics.11 Nationalism preached specified territories for a country inhabited by people of one race, one religion, one language, one legal system with
uniform laws applicable to all and so on for inculcating devotion and willingness to sacrifice anything and everything for the cause of the nation. The
experience of two world wars, however, taught of the dangers inherent in the
ideology of nationalism and, therefore, after the second World War it became a
hated concept. But everything it had taught and created, including the concept
of law, did not and could not change overnight. The idea of uniform civil code
must have been influenced by similar codes made in almost all the European
countries by the end of 19th century or early part of 20th century starting with
the French Civil Code of 1804. The French code declared to have been written
on a clean slate, had abolished every law and legal institution that existed until
its coming into force. Thus all customary or statutory laws of different sections
or classes of the people were replaced by one uniform law stated in the Code.
The same precedent was repeated in the codes of other European countries.
II. L EGAL
PLUR ALISM
Diversity is natural while uniformity is forced. Therefore, in the natural state, which Hobbes described as state of nature12, people lived by their
group norms, which in one or the other respect differed from group to group.
But Hobbes gave a harrowing depiction of that society and developed the
idea of a sovereign to whom all people expressed their allegiance in exchange
for establishing order. Austin13 used that concept to define law in top down
terms that all law was direct or indirect command of the sovereign and whatever could not be so proved could not be law. Later scholars like Kelsen14 and
Hart15 gave a bottom up description of all law by propounding that any norm
or rule of conduct to be law must be capable of being traced back to a grundnorm or rule of recognition. Unless it is capable of being so traced it is not
law. But from 1930s several scholars, most prominently Ehrlich16 started questioning this notion of law. They noticed the difference between the state law
11
12
13
14
15
16
For the exchange of letters see, Sabyasachi Bhattacharya, The Mahatma and the Poet,
54ff (National Book Trust, India 1997).
See, Thomas Hobbes, Leviathan (1651).
John Austin, the Province of Jurisprudence Determined (1832).
Hans Kelsen, A General Theory of Law and State (1949).
H. L. A. Hart, The Concept of law (1961).
Eugene Ehrlich, Fundamental Principles of the Sociology of law (1936).
EDITORIAL NOTE
IX
and people’s behaviour. People practiced and observed many things of which
either there was no reference in the state law or even if there was such a reference, people behaved differently without coming into conflict with it. People
indulged in many activities by making clubs or associations or religious groups
or any other informal organisation without coming in conflict with the state
law. The norms set by these bodies or groups could regulate large part of their
lives, sometimes even larger than regulated by state law. Initially all societies
lived like that by their customary laws. Even after the establishment of the
state they continued to live like that except in criminal activities for which
generally the same law applied to all of them. Accordingly, they claimed that
legal centralism is a myth while legal pluralism is the reality, the fact of life. In
the modern history Warren Hasting’s following regulation of 1772 is cited as
the first example of state recognition of legal pluralism:
“In all suits regarding marriage, caste, and other religious usages and
institutionsthe law of the Koran with respect to the Mohammedans
and of the Shaster with respect to the Gentoos shall be adhered to.”
With this exception everyone was governed by the state law applicable to all. Thus the plurality of law was officially recognised in India. Even
though these laws were administered in the same courts their distinct existence and operation was acknowledged, this regulation became a model for all
the European colonisers which covered large part of the world in the 18th and
19th centuries until colonisation started dissolving after the Second World War.
But, as already noted, prior to that Europe had advanced the idea of nation
state which pleaded for and applied centrist legal ideology in terms of unity of
law. Scholars on legal pluralism17 acknowledge that the State law would prevail
in case of conflict with any customary or community law, but if there is no
such conflict such law can very well operate.
Dealing with several theories of pluralism such as of Pospisil’s theory of
legal levels18, Smith’s theory of corporations19, Ehrlich’s theory of living law20
drawing a distinction between rules for decision and rules of conduct and Sally
Moore’s concept of semi-autonomous social field 21, Griffiths concludes:
“Legal pluralism is an attribute of a social field and not of law or a
legal system. A descriptive theory of legal pluralism deals with the fact
that in a given field law of various provenances may be operative. It
is when in a social field more than one source of law, more than one
17
18
19
20
21
For example, see M. B. Hooker, Legal Pluralism – An Introduction to Colonial and
Neo-Colonial Laws (1975).
Leopold Popisil, Anthropology of Law: A Comparative Theory (1971).
M. G. Smith, Corporations and Society (1974)
Supra note 16.
S. F. Moore, Law as Process: An Anthropological Approach (1978).
X
[Vol. 5 : Monsoon]
legal order, is observable, it is then that the social order of that field
can be said to exhibit legal pluralism.” 22
He goes on to add:
“Law is present in every semi-autonomous social field, and since every
society contains several such fields, legal pluralism is a universal feature of social organisation.” 23
And finally concludes:
“Legal pluralism is concomitant of social pluralism: the legal organisation of a society is congruent with its social organisation. Legal pluralism refers to the normative heterogeneity attendant upon the fact
that social action takes place in the context of multiple overlapping,
semi-autonomous social fields, which it may be added, is in practice a
dynamic condition.” 24
Such a conception of legal pluralism perfectly fits with the social facts
in India. India is known for its enormous diversity and social heterogeneity.
But the same should apply to any society which is so diverse and heterogeneous. All societies are becoming more and more heterogeneous with globalisation resulting in movement of people of different backgrounds to a common
place. Consequently legal pluralism becomes their condition too and therefore,
more and more countries are now looking for solutions of legal problems that
have been caused by social heterogeneity. Even in legal theory and facts of life,
India is not unique in having more than one legal systems or laws operating
within certain fields under the overall umbrella of a state legal system willing
to accommodate its social heterogeneity.
III. THE C ONSTITUTION
Our Constitution fully recognises and accommodates the social and legal
heterogeneity of the country. It leaves the family outside the discipline of FRs.
Neither like many other constitutions it creates a FR to family nor does it disturb it by bringing the personal laws within the domain of law. Accordingly
in the very early stages of the Constitution the Bombay High Court and later
the Supreme Court also pronounced that law in Article 13 does not include
personal laws and therefore, they cannot be challenged on the ground of violation of FRs.25 Simultaneously it expressly recognises their existence and author22
23
24
25
John Griffiths, What is Legal Pluralism?, 24 J. Legal pluralism & Unofficial L. 1, 38 (1986).
Id.
Id.
See, State of Bombay v. NarasuAppa Mali, AIR 1952 SC 1952 Bom, at 84; Ahmedabad
Women’s Action Group v. Union of India, (1997) 3 SCC 573.
EDITORIAL NOTE
XI
ises people’s representatives in Parliament and State legislatures to convert them
into state laws.26 Parliament and State legislatures have also done so from time
to time more in the case Hindu law than in the case of Muslim law.
Besides personal laws, Constitution has umpteen provisions recognising
and protecting social and legal pluralism. To begin with, it creates a federal
system which recognises geographical, social, linguistic and other differences
among different States and accordingly does not treat all of them uniformly
in all matters.27 Among others it imposes on them special obligations to protect linguistic minorities within their boundaries.28 Detailed provisions have
been made with respect to tribal areas within some of the States and for predominantly tribal States.29 It confers a FR on any section of the citizens residing in the territory of India having a distinct language, script or culture to
conserve the same. All minorities, whether based on religion or language,
have the right to establish and administer educational institutions of their
choice and to receive equal grants from the state for running them. They are
also free from certain obligations which non-minority institutions must fulfil.
Women and children and socially and educationally backward classes including Schedule Castes and Schedule Tribes have been given special consideration
in matters of FRs. For Schedule Castes, Schedule Tribes, and small minorities
like Anglo Indians, special safeguards including representation in Parliament,
State legislatures, village Panchayats, municipalities and cooperative societies
have also been provided. Schedule Tribes within some of the States and constituting some of the States have been secured special position by having the
right to be governed by their laws. All these and several other provisions of
the Constitution establish that while the Constitution in its Preamble assures
the unity and integrity of the nation, it also endorses, preserves and supports
its plurality. Even the goal of national unity stated in the Preamble and considered by Granville Austin as one of the three strands of the seamless web in
the Constitution is strengthened rather than weakened by its due recognition
of pluralism.
IV. C ONCLUSION
As Tamanaha states, “[t]he longstanding vision of a uniform and monopolistic law that governs a community is plainly obsolete.”30 In the light of the
foregoing discussion we may conclude that the uniform civil code is not one of
26
27
28
29
30
See, Constitution of India, Entry 5 of List III, 7th Schedule r/w art. 246.
Constitution of India, art. 370 & 371(A) - 371(J).
Constitution of India, art. 350(A) & 350(B).
Constitution of India, Part X, Schedule V & VI.
Brian Z Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney
L. Rev. 374, 409 (2008).
XII
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the foremost goals of our Constitution.31 If at all it has to be achieved, it must
be achieved consistently with other provisions and goals of the Constitution.
One of the fundamental duties imposed by the Constitution on all citizens of
India, who definitely include our parliamentarians and state legislators, is “to
promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities”. The DP in Article 44 is expected to be harmonised with this duty. If
consensus may be arrived at between different communities of people in consonance with this duty, process of realisation of a uniform civil code may be
conceived of. But so long as such a consensus does not arise the process of
realisation of a uniform civil code will have to wait.
Some lessons from the experience of other similarly situated countries,
especially in Asia, may also be learnt in this regard. Indonesia, a predominantly Islamic country, which has a plurality of laws in the form of customary laws, Muslim law and civil law introduced by colonisers, has been making
efforts in this direction, which have not yet been fully successful.32 Some similar suggestions have been given by some scholars for the realisation of uniform
civil code in India. We may examine all these examples and suggestions for
creating a consensus on this issue.33 But so long as such a consensus is not
reached, any attempt to realise the goal of uniform civil code will not only
remain unsuccessful, it will also be inconsistent with the Constitution.
31
32
33
See also, Pawan Kumar, Religious Pluralism in Globalised India: A Constitutional Perspective, 3
IOSR Journal of Humanities and Social Science 5 (2012).
See also, Ratno Lukito, Legal Pluralism in Indonesia (2013).
See also, Narendra Subramanian, Nation and Family Personal Law, Cultural
Pluralism, and Gendered Citizenship in India (2014); Religion and Personal Law in
Secular India (Gerald James Larson ed., 2001); Bhawani Singh, Uniform Civil Code in
Retrospect and Prospect (2002).
Second M.K. Nambyar Endowment
Lecture 2014
on
From Bhopal to Saha:
The Elusive Promise of
Effective Legal Remedy †
—Marc Galanter*
I would like to express my appreciation to Vice Chancellor Ishwara Bhat
and his colleagues, for inviting me to deliver the second Shri M.K. Nambyar
Memorial Lecture, and to the donor, Mr. K.K. Venugopal whose generosity
has made this event possible. I did not have the privilege of knowing Shri
Nambyar, but the accounts of his erudition, his vision and his dedication help
us to understand his immense contribution to enabling the judiciary to realize its potential as India’s innovative trouble-shooter as well as her steadying
gyroscope. He did much to erect the constitutional structure within which
India’s everyday legality can flourish. I hope you will find it fitting to use this
occasion to focus on the everyday – to examine the prospects for making legal
institutions more responsive and effective in protecting the lives and well-being of ordinary citizens. Obviously that is a goal with many dimensions, but
I want to take this occasion – the thirtieth anniversary of the Bhopal disaster
– to focus on an aspect that gets little attention, the protection of citizens from
injury due to negligence and indifference.
As a much indulged guest, let me begin by expressing my sincere gratitude for the gracious hospitality of NUJS. It is a great pleasure to be your
guest. But I didn’t come all this way just to say some nice things and go
home. I have been coming to India and thinking and writing about India’s
†
*
This is an expanded version of the Second M.K. Nambyar Lecture, delivered at the National
University of Juridical Sciences, Kolkata, on 29-11-2014. I am grateful to Richard Abel, Emma
Babler, Robert Moog, Nick Robinson, Vasujith Ram, Usha Ramanathan, and the staff of the
University of Wisconsin Law Library for their generous provision of guidance and assistance.
John & Rylla Bosshard Professor Emeritus of Law and South Asian Studies, University of
Wisconsin – Madison.
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legal system for a long time – more than half a century, it appears, though
that seems hardly possible. This doesn’t give me insight superior to those of
you who are immersed in it and committed to it in a way I can never be. But
my marginality does give me a different, outsider perspective – one that might
usefully supplement or even challenge the insights of you insiders. So for what
it’s worth I am going to take this opportunity to tell you how things look
from my perspective. My account may not always be flattering, but I wouldn’t
be here if I didn’t admire and respect so much of what India has accomplished
in these sixty some years since Independence – really a short time, just a
moment in the arc of a great civilization. But obviously there is much more to
be done.
I could be mistaken, but I am an irrepressible optimist. I cannot suppress my conviction that there are prospects for a better future and that those
gathered in this room represent a significant component of the capacity to
realize them. It is in that spirit that I address you today and I hope that my
remarks will be received with the wonderful receptiveness that it has been my
good fortune to find here – a receptiveness that need not exclude critical feedback from your side. Basically, I want to use this opportunity to set in motion
a conversation that I think is long overdue.
It is a conversation about what happens when people get hurt – by accidents, by negligence, by indifference. How can legal institutions better help to
comfort the victims and to make such occurrences less frequent? This is, I submit, a conversation about the constitution – not just in the technical sense of
the obligations of government under Art. 21, but in the broader sense of the
fellow-feeling, mutual recognition and shared destiny that tie the citizens of
India to one another. In talking about the law of torts, we are not only talking
about a device for compensating the injured and taxing the injurors, but we
are talking about a site for examining, elaborating and dramatizing the responsibilities of human fellowship that constitute the sinew of a democratic society.
I. THE BHOPAL DISASTER
In just a few days it will be 30 years since the terrible gas leak at the
Union Carbide plant in Bhopal, which ranks as the world’s greatest industrial disaster.1 Bhopal posed a challenge to the Indian legal system, which,
most observers agree, did not acquit itself well (nor, I should add, did the
1
Coincidentally, the Union Carbide Corporation, then known as Union Carbon and Carbide,
was responsible half a century earlier for the greatest industrial disaster in the history of the
United States, the death from silicosis of many hundreds of workers in the construction
of the Hawk’s Nest tunnel in West Virginia. See Marc Galanter, Bhopals, Past and Present:
Changing Responses to Industrial Disaster, 10 Windsor Yearbook of Access to Justice 3-22
(1990); Martin Cherniak, The Hawk’s Nest Incident : America’s Worst Industrial
Disaster (1986).
FROM BHOPAL TO SAHA
141
American). Bhopal was the biggest and worst of many injurious events, but
mini-Bhopals – building collapses, mass poisonings, fires in hospitals and
schools – occur with dismaying frequency. To respond to disaster in a way that
both assuages the harm and reduces the risk of similar events in the future is
a goal that grows more challenging as changing technology both increases the
scale of potential harm but also provides tools for prevention and remedy.
Since many or most of you may not be chronologically qualified to
recall those events, let me briefly summarize. In 1968, the Union Carbide
Corporation, an American multi-national with subsidiaries throughout the
world, built a chemical plant in Bhopal through its Indian subsidiary, Union
Carbide India Ltd. (UCIL).2 UCIL had long made pesticides, batteries and
other products at fourteen plants in India. The UCIL plant in Bhopal was
granted a license to manufacture pesticides in 1975.3 Starting in 1980 the
plant produced methyl isocynate (MIC), an ingredient in insecticides. This
was the time of the Green Revolution in agricultural productivity. It turned
out that the pesticides produced at the Bhopal plant were less successful than
others. In the early 1980s, the profitability of the Bhopal plant was declining
and UCC headquarters in Connecticut was considering dismantling the plant
and moving it to Indonesia. Maintenance was spotty, and there were several
small accidents involving MIC in the months preceding the night of Dec 2,
19844 - when an explosion released a deadly cloud of MIC that killed over
2000 immediately and eventually many times that number and injured many
thousands.
It was the most lethal industrial disaster ever and was the focus of horrified attention throughout much of the world, not least in the US because
2
3
4
To be exact, UCIL was a subsidiary of UCC (which owned 50.9% of the stock), and was
managed by another subsidiary of UCC, Union Carbide Eastern, based in Hong Kong.
For a recent update, See Injustice Incorporated: Corporate Abuses and the Human Right
to Remedy, Amnesty International (2014). For further insight into the events, see S.
Muralidhar, Unsettling Truths, Untold Tales: The Bhopal Gas Disaster Victims’ ‘Twenty Years’ of
Courtroom Struggles for Justice – Bhopal Gas Leak Disaster – Legal Issues, 26 IELRC Working
Paper 2004/5 (2004), <http://www.ielrc.org/content/w0405.pdf.>; Jamie Cassels, The
Uncertain Promise Of Law: Lessons From Bhopal (1993); Sheila Jasanoff, Learning
From Disaster: Risk Management After Bhopal (1994); Sanjoy Hazarika, Bhopal:
The Lessons of a Tragedy (1988). On the legal maneuvering in the early phase, see Marc
Galanter, Legal Torpor: Why So Little Has Happened in India After the Bhopal Tragedy, 20
Texas Int’l L. J. 273-294 (1985). A vast trove of material on the early years of the Bhopal
litigations may be found in the three volumes issued under the auspices of the Upendra
Baxi & Thomas Paul, Mass Disasters and Multinational Liability: The Bhopal Case,
Indian Law Institute (1986); Upendra Baxi, Inconvenient Forum and Convenient
Catastrophe: The Bhopal Case (1986); Upendra Baxi & Amita Dhanda, Valiant
Victims and Lethal Litigation: The Bhopal Case (1990).
Accidents had reportedly taken place in December 1981, as well as January, March and
October 1982. An internal security audit conducted in May 1982 identified 61 hazards,
included 30 major ones. A local lawyer had served a legal notice on 4-3-1983 highlighting
health risks, in reply to which UCIL denied the allegations. See S. Muralidhar, Supra note 3.
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of the American connection. I cannot hope to summarize the contents of the
small library that has been written about the gas leak, its causes and its aftermath. What I would like to do today is to provide a skeletal account of the
course of the litigation about the Bhopal disaster and then to examine briefly
the encounter of the Indian legal system with several more recent instances of
negligent infliction of fatal injury.
In the days following the explosion, amid the confusion in Bhopal, a
flock of American plaintiffs lawyers alighted in Bhopal to sign up thousands of
clients for anticipated lawsuits in the US; thousands of suits were filed on their
return. The Government of India, having equipped itself with statutory authorization as the exclusive representative of the victims,5 also decided to pursue
the case in the United States.6 All the Bhopal cases, the Government’s and the
private attorneys’, filed in Federal Courts in various parts of the United States,
were consolidated for pre-trial proceedings in the Southern District of New
York.7
Union Carbide moved to dismiss the case on grounds of forum non conveniens – that is a rule of jurisdiction, not a constitutional rule, that empowers
a court to reject a case on the grounds that it would be more appropriately
pursued in an available alternative forum. The parties submitted their arguments on the forum issue. (I must disclose that I was an expert witness for
the Government of India on this issue.8); Alas, Judge Keenan was more persuaded by the assurances of Union Carbide’s experts, Nani Palkhivala9 and
J.D. Dadachanji10, eminent advocates who professed outrage at the notion that
the Indian system was incapable of timely and effective resolution of the case.
5
6
7
8
9
10
Under the authority of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (Act 21
of 1985).
It seems improbable to me that, if the prospective defendant had been an Indian company,
the Government’s reaction would have taken the form of a civil lawsuit.
When civil actions involving common questions of fact are pending in different districts, the
Judicial Panel on Multidistrict Litigation is empowered to transfer all such actions to any particular district for consolidated pre-trial proceedings (see 28 US Code § 1407). The Judicial
Panel in this case transferred the cases to the Federal District Court for the Southern District
of New York, before Judge F. Keenan, who was assigned the case by lot. Judge Keenan, whose
pre-judicial experience was mostly on the criminal law side, was a relative newcomer to the
Bench, having joined the Court in September 1983. In conformity with the Court rules, all
subsequent Bhopal-related matters were assigned to Judge Keenan.
See Affidavit of Marc S. Galanter, in, Upendra Baxi & Thomas Paulo, Mass Disasters
and Multinational Liability 161-221 (1986).
Affidavit of N.A. Palkhivala in Support of Defendant’s Motion for Dismissal on Forum Non
Conveniens Grounds, in, UPENDRA BAXI & THOMAS PAULO, MASS DISASTERS
AND MULTINATIONAL LIABILITY 222-229 (1986). These assurances departed from his
earlier assessment. Just 12 months earlier, Nani Palkhiwala had told TIME Magazine that,
“If the suit were filed in India, the judgment would be in the next century”. See The Great
Ambulance Chase, TIME Magazine, 24-12-1984.
Affidavit of J.B. Dadachanji in Support of Defendant’s Motion for Dismissal on Forum
Non Conveniens Grounds, in, Upendra Baxi & Thomas Paulo, Mass Disasters and
Multinational Liability 72-84 (1986).
FROM BHOPAL TO SAHA
143
The Government’s suit was dismissed on grounds of forum non conveniens and
sent to India.11 Once there, the Government was reluctant to introduce any
procedural reforms or establish a special tribunal, fearing that such innovation
might provide ground for American courts to decline to enforce the Indian
judgement. The case was assigned to the District Court in Bhopal; the only
departure from routine was that a judge was assigned to deal with this case
exclusively.
After several years of inconclusive grapping, the Bhopal District Court in
December 1987 ordered interim relief – a rarity in tort cases – which led to an
interlocutory appeal to the High Court of Madhya Pradesh, which upheld it,
leading to a further appeal which put the matter before the Supreme Court of
India. At that moment, in February 1989, the Government of India concluded
a settlement with Union Carbide for 470 million Dollars, which was immediately endorsed by the Supreme Court. The amount was little higher than what
UCC had offered earlier, but far short of the 3.1 billion Dollars damages that
the Government was claiming. It is not clear to me why the Government settled for so little. One theory is that it was pushed by an acute shortage of foreign exchange.12
The Government and many observers, including some in the judiciary,
justified the February 1989 settlement of the Bhopal case as beneficial to the
victims by comparing it with the results of further litigation that would have
lasted “anywhere from 15 to 25 more years.”13 This was not a claim that the
settlement represented the victims’ true entitlements; rather it was an assertion
that whatever the magnitude of those entitlements, the unalterable character
11
12
13
The case was dismissed with the following conditions: “1. Union Carbide shall consent to
submit to the jurisdiction of the courts of India, and shall continue to waive defenses based
upon the statute of limitations; 2. Union Carbide shall agree to satisfy any judgment rendered
against it by an Indian court, and if applicable, upheld by an appellate court in that country,
where such judgment and affirmance comport with the minimal requirements of due process;
3. Union Carbide shall be subject to discovery under the model of the United States Federal
Rules of Civil Procedure after appropriate demand by plaintiffs.” See Union Carbide Corpn.
Gas Plant Disaster at Bhopal, India in December 1984, In Re, 634 F Supp 842 (SDNY 1986).
On appeal to the United States Court of Appeals for the Second Circuit, condition (3) above
was held to be erroneous, and the provision for discovery was modified in the following form:
“we direct that the condition with respect to the discovery of UCC under the Federal Rules
of Civil Procedure be deleted without prejudice to the right of the parties to have reciprocal
discovery of each other on equal terms under the Federal Rules, subject to such approval as
may be required of the Indian court in which the case will be pending…. In the absence
of such a court-sanctioned agreement, however, the parties will be limited by the applicable
discovery rules of the Indian court in which the claims will be pending.” See Union Carbide
Corpn. Gas Plant Disaster at Bhopal, India in December 1984, In re, 809 F 2d 195, CA2 (NY),
1987 (14-1-1987).
India cannot go back on settlement : Bhardwaj, The Hindu, 26-6-2010. (H.R. Bhardwaj
was Minister for State for Law at the time of the settlement. He notes the need for foreign
exchange at the time).
Bhopal Gas Settlement : Govt. Justifies Amount, Hindustan Times, 8-3-1989.
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of the India’s legal system foreclosed the possibility of obtaining them before
passage of so long a period that the present value of these claims was less than
the settlement amount. The features of the system that insured protracted
delay were treated as given and unchangeable.
Far from resolving matters, the 1989 settlement fragmented the controversy and diverted the fragments into several channels. Activists won a retraction of the Supreme Court’s initial acceptance, as part of the settlement, of
the quashing of the related criminal cases14 —which eventuated in the conviction of eight senior Indian employees of the subsidiary UCIL, found guilty of
criminal negligence on June 7, 201015 —some twenty-five years after the explosion. Prominently absent was Warren Anderson, Chairman and CEO of Union
Carbide at the time of the disaster, who had flown into Bhopal in the days
after the gas leak, was briefly detained, but released and allowed to leave India,
never returned, and became the symbol of Union Carbide perfidy. He retired
in 1985 lived in relative seclusion until his death at the age of 92 on Sep. 29
of this year, 2014.16 His absence, symbolic of the “escape” of Union Carbide,
has engaged and enraged an unappeased following to this day.
In 1999 Carbide was purchased by the Dow Chemical Company.
Campaigns to force Dow to engage in clean-ups of the site continue. Sporadic
litigation, attempting to find an American forum for claims about the original explosion or the unanticipated costs of the clean up, has been consistently
rebuffed by the U.S. courts, most recently in 2014.17
In the meanwhile the Government of India’s distribution of the settlement funds was both stingy and inefficient. An authoritative report observed
that “No claim was settled earlier than a waiting period of 7 years. The adjudicatory process involved over 5 visits of two hours each for the claimant.
Ultimately the Judge was able to spend no more than 10 minutes on a case.”18
Twenty years after the explosion, the Government still retained an amount
roughly equivalent to the amount it had distributed to the victims. (This was
because the exchange value of the rupee had declined from 12 to the Dollar
in 1985 to 43 to the Dollar in 2004). In 2004, the Supreme Court ordered
the Government to distribute the remaining funds pro rata to the prior recipients.19 A decade later, just a few weeks before this lecture, victim organizations,
14
15
16
17
18
19
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.
State of M.P. v. Warren Anderson, Cr. Case No. 8460 of 1996 in the Court of the Chief
Judicial Magistrate, Bhopal.
Douglas Martin, W.M. Anderson, 92, Dies, Led Union Carbide in ‘80s, N.Y. Times, 31-10-2014.
See for example, Sahu v. Union Carbide Corpn., Slip Copy, 2014 WL 3765556, SDNY,
30-7-2014.
S. Muralidhar, supra note 3, at ¶ 26.
Union Carbide Corpn. Ltd. v. Union of India, (2006) 13 SCC 321; S. Muralidhar, supra note 3,
at ¶ 24.
FROM BHOPAL TO SAHA
145
dissatisfied with both the compensation and the cleanup, were holding a hunger strike in Delhi.20
These are only the bare bones of the story. To put that story in context, I
would emphasize some additional aspects:
• Bhopal occurred some five years before economic “liberalization”
and the new openness to foreign investment. It was also just five
years after the end of the Emergency, and the recoil against the
courts’ weak response to its excesses. That recoil had stimulated a
wave of judicial activism and the birth of public interest litigation.21
Courts were taking the initiative to address various unaddressed
problems. So the defeatism of the bar and the judiciary’s initial
response to the disaster is particularly striking. Apart from the
attempt to improvise interim relief, we didn’t see any of the innovative energy of PIL here.
• In the last judgement authored before his retirement in December
1986, Chief Justice P.N. Bhagwati attempted to propound a rule
of absolute liability for injuries resulting from hazardous activities
of large enterprises.22 This was repudiated by later courts that dismissed his observations as “essentially obiter.”23
• The reach for an American remedy was the reverse side of a deep
pessimism about a remedy in India, coupled with an untroubled
(and, in the event, unfounded) confidence in the United States’
legal system and anticipation of enormous recoveries. A few weeks
after the gas leak, the Chief Justice of India observed “These cases
must be pursued in the United States. It is the only hope these
20
21
22
23
See Bhopal Gas Leak Victims Begin Indefinite Hunger Strike in New Delhi, Daily News &
Analysis, 12-11-2014.
After the Emergency of 1975-1977, the higher courts embarked on an activist expansion of
rights, which included “public law remedies” for constitutional torts: illegal detention, custodial violence, police atrocities and even culpable inaction in failing to protect citizens. For an
authoritative account, see S.P. Sathe, Judicial Activism in India: Transgressing Borders
and Enforcing Limits (2nd Edn., 2003). Under the writ petition procedure, courts, typically proceeding on the basis of a report of judicial enquiry or other official reports, allowed
compensation against the State and sometimes against offending officials, preserving rights to
pursue “private law remedies”. Noting cases like Rudul Sah v. State of Bihar, (1983) 4 SCC 141
and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
M.C. Mehta v. Union of India, (1987) 1 SCC 395.
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584; Charan Lal Sahu v. Union of
India, (1990) 1 SCC 613.
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unfortunate people have.”24 The export of the legal action to the
United States provoked hardly a murmur of dissent at the time.
Later, lawyers attacked the Government for its lack of confidence
in the Indian legal system, eventually eliciting an apology by the
Government for its insult to bar and bench.
• Bhopal provided a vivid reminder of the Indian legal community’s lack of interest in tort litigation. There are many brilliant and
highly skilled judges and advocates – but relatively little experience
or imagination when it comes to tort.
• To this day public discourse reveals an emphatic focus on criminal liability – i.e., on punishment of the bad guys rather than the
compensation and rehabilitation of the victims and the deterrence of
future damaging behavior.
• To an outsider the virtual absence of any visible investment of
reform energy in the legal control of accidents – in spite of the
high accident rate25 – is striking. And not just to outsiders - just
two months before this lecture, a bench of the Supreme Court,
upholding a liability judgement of the National Consumer Disputes
Redressal Commission (in a case involving a 1992 incident where
customers were allowed to ride a boat filled over standard capacity,
without any provision of life-guards or life-jackets), requested that
the Law Commission propose a comprehensive law of tort liability
for government agencies.26
All of which brings us to the question of why there is so little resort
to tort remedies in India? Tort claims in the courts are inhibited by steep
up-front ad valorem filing fees, by long delays and by modest (and frequently
difficult-to-collect) awards. Cases arising from car, bus and truck accidents
are in the Motor Accident Tribunals; medical malpractice claims are in the
consumer tribunals.27 But for the great bulk of non-auto injuries, the most
24
25
26
27
James Stewart, Why Suits for Damages Such as Bhopal Claims are Very Rare in India, Wall St.
Journal., 23-1-1985, at 1, Col. 1.
According to the National Crime Records Bureau’s report, there were 3, 94, 982 accidental
deaths in 2012 alone. See, Ministry of Home Affairs, Accidental Deaths & Suicides in India:
2012, National Crime Records Bureau (2012), <http://ncrb.gov.in/CD-ADSI-2012/
ADSI2012.pdf>.
Vadodara Municipal Corpn. v. Purshottam V. Murjani, Civil Appeal No. 3594-3611 of 2010,
decided on 10-9-2014 (SC). The judgment was delivered 21 years after the event, which took
place in August 1993.
For example, see Kunal Saha v. Sukumar Mukherjee, OP No. 240 of 1999 in the National
Consumer Disputes Redressal Commission, which will be discussed later in this paper. In
FROM BHOPAL TO SAHA
147
prevalent form of relief, if any, is through ex gratia payment—that is, a payment which the giver, either the tortfeasor or more frequently a government
body, characterizes as given without legal obligation.28 A report of a building
collapse, a railway accident, a chemical spill is typically accompanied by an
announcement by some government body that it is giving an ex gratia payment
of 2 lakhs or 5 lakhs to families of the deceased, less to the injured. Some of
these are one-off; other ex gratia payments are regularized, with terms specified
in advance and announced on government websites.29
There is sometimes – we don’t know how often – slippage between the
announcement and the actual delivery of aid. Such ex gratia payments are
welcome indications of concern and willingness to help. But concern can take
many forms. These payments, in many cases at least, are paternalistic, unpredictable, not closely related to need, involve no ascertainment or admission
of fault, and do not have a discernable connection with prevention.30 Indeed
they may insulate potential tortfeasors by reducing the occurrence of demands
on them. Recovery from injurors is so rare that legal liability is typically not
treated as a factor of prevention. My sense is that there are an increasing number of schemes of ex gratia payment, perhaps a growth of expectation of such
payment in many types of injury. If there is concern with determining responsibility for the injury, it is quite separate from the delivery of compensation.
But it would seem possible to enhance governmental responsiveness to victims’
need by enabling the responding agency to move against the tortfeasor by way
of subrogation or assignment.31
28
29
30
31
principle, product liability claims by consumers should be there as well – and they frequently
are. It seems that at least some consumer tribunals have also decided cases in which commercial users of products are suing their suppliers. See Shilpi Verma, Product Liability in India
– Award of Damages, Product Liability Blog (11-2-2008), <http://productliabilityindia.blogspot.com/2008/02/product-liability-in-india-award-of-html.>
But there are exceptions. Robert Moog, The View from Inside India’s Consumer Forums:
Empowering the Few 1-20 (2014) (unpublished manuscript). In this paper, Robert Moog analysed a sample of 100 cases in each of 14 districts (in 7 States). In one of his districts 17% of
the sampled cases were tort claims, 14 of them “actions against the electricity supplier seeking
damages from fallen power lines or short circuits that resulted in crop losses, animal deaths,
or injuries or death to humans.” This pattern was distinctive; in none of the other 13 districts
was there a significant presence of tort claims.
See, e.g., the Government of Delhi website.
These observations are focused on instances like building collapses, fires and mass poisonings where private negligence is combined with regulatory failure. Some “natural disasters”
for which no one is directly responsible may be more appropriate for ex gratia treatment,
but there is often an element of responsibility in terms of adequacy of advance planning and
response.
See Economic Transport Organisation v. Charan Spg. Mills (P) Ltd., (2010) 4 SCC 114, para 23.
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To summarize, if the response to Bhopal did anything to link tort compensation with deterrence, prevention or the promotion of public safety, it is
difficult for me to discern.32
II. UPHA AR – THE BREAKTHROUGH …. A LMOST
On Friday the 13th of June, 1997, a fire broke out in the Uphaar cinema in a prosperous area of New Delhi. Exits in the balcony were blocked and
unusable as a result of the installation years before of additional unauthorized
seats. Fifty-nine theatre-goers died and over 100 were injured. A group of families formed an association and launched a coordinated campaign of litigation
against the cinema owners, the Electricity Board that housed a defective generator in the basement of the theatre, indifferent regulators and ill-equipped
responders. In November, 1997, the Association, represented by a volunteer
lawyer, filed suit in the Delhi High Court (using the writ petition procedure),
asking Rs. 22.1 crores compensation and Rs. 100 crore punitive damages (to
be used to set up a trauma center). In April, 2003 the court ordered compensation of Rs. 21 Crores to the families of the deceased, and Rs. 1.04 crores to
the 104 injured theatergoers. Fifty–five percent of these damages were assessed
against the theatre owners and forty–five percent shared by three government
units (the Electricity Board, the Municipal Corporation and the Police licensing bureau). In addition, Rs. 2.5 crore (the estimated earnings of the owners
from the theatre’s unauthorized seats) was awarded to establish an accident
trauma service.33
Five months after the fire, criminal charges were brought against the
theatre’s owners, multimillionaire brothers Sushil and Gopal Ansal, and 14
others. Trial in the Sessions court commenced sixteen months later in March
1999. Eight years and seven months later, in November 2007, the Sessions
Court convicted all of the 12 surviving accused and sentenced the Ansals to
two years imprisonment.34 Thirteen months later the Delhi High Court upheld
the brothers’ convictions but reduced their sentences to one year.35 The Court
also upheld the convictions of four of the other accused. The victims’ association and the Central Bureau of Investigation (CBI) appealed to the Supreme
Court to enhance the sentences of the Ansals. In March 2014, sixteen years
32
33
34
35
See Usha Ramanthan, Legislation of a Complicit State, The Statesman, 12-12-2014; Vijay
Nagaraj & Nithya Raman, Are We Prepared for Another Bhopal?, Seminar 244 – Elusive
Justice: A Symposium on the Bhopal Gas Disaster after Twenty Years (December
2004) for an account of the post-Bhopal legislation. Ramanathan concludes: “As for corporate
manslaughter, which has entered the realm of the probable with the Bhopal gas disaster, the
law and the law maker continue to maintain an unbroken silence.”
Assn. of Victims of Uphaar Tragedy v. Union of India, (2003) 68 DRJ 128 : (2003) 104 DLT 234
(DB). See also Sayantan Chakravarty, Uphaar Case : Pay a Price, India today, 5-5-2003, at 44.
SC No. 13 of 2007.
Sushil Ansal v. State, 2008 Indlaw Del 2319.
FROM BHOPAL TO SAHA
149
and four months after the fire, a two judge bench of the Supreme Court
upheld the convictions.36
The Uphaar civil case looked like the perfect candidate for a breakthrough on the tort liability front. It had rich malefactors, sympathetic victims, public-spirited claimants, apparently incontrovertible fault, and no
evidentiary problems.37 It seemed to open a path to tort relief in disasters.
Of course it is very much the exception that proves the rule. The event was
big news, the plaintiffs were affluent and well-organised and represented by a
dedicated lawyer who did not charge for his services. The defendants included
governmental as well as private parties; the wrongdoing included violations of
statutory duties as well as negligence; the civil proceedings were paralleled by
criminal prosecutions for egregious safety violations. The writ petition procedure was pressed into service; the case could suffice without a trial because
“the judges felt that a conclusion could be reached on the basis of official
reports without going into disputed questions of fact requiring massive volumes of evidence.”38
The discretionary attention of the higher courts is a scarce resource.
Public outrage, astute lawyering39 or judicial sympathy can capture such attention for an occasional tort case, but as the late Professor S.P. Sathe concluded
“[a]wards of compensation under the writ jurisdiction can be nothing more
than tokenism.”40
The Uphaar civil case failed to be an exemplary shining token. On
October 13, 2011, fourteen years and four months after the fire, a two judge
bench of the Supreme Court eviscerated the plaintiffs’ 2003 victory in the
High Court.41 The damages were reduced to a fraction of the High Court’s
award – for example, payments to the relatives of deceased victims were cut
90% from 2.5 crores to 25 lakhs. The various government agencies which
had been found liable were let off (apart from the Delhi Vidyut [Electricity]
Board). Once again, the hope for an exemplary legal response to a mass tort
proved unfounded.42
36
37
38
39
40
41
42
Sushil Ansal v. State, (2014) 6 SCC 173.
Samar Halarnkar & Sayantan Chakravarty, Tickets to Hell, India Today, 30-6-1997, at 30.
Rajeev Dhavan, The Uphaar Case, The Hindu, 2-5-2003.
Marc Galanter & Nick Robinson, India’s Grand Advocates: A Legal Elite Flourishing in the Era
of Globalization, 5 HLS Program on the Legal Profession Research Paper No. 1240
2013, (1-11-2013), <http://ssrn.com/abstract=2348699 or http://dx.doi.org/10.2139/ssrn.2348699>.
S.P. Sathe, supra note 21, at 144.
MCD v. Uphaar Tragedy Victims Assn., (2011) 14 SCC 481.
Raveendran, J. held that in case of constitutional torts (sought through a writ petition in the
Constitutional Courts), mere inaction or inefficiency by public authorities in performance of
statutory duties will not lead to monetary liability, absent proof of malice, conscious abuse
or direct negligence. Radhakrishnan, J. further observed that constitutional power to grant
compensation is exercised mostly when there is a serious violation of fundamental rights and
seldom when there is a mere violation of a statute. Id.
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In March 2014 a two judge bench of the Supreme Court took up the
appeal of the Uphaar criminal case. While it upheld convictions of the Ansals,
the judges disagreed about the appropriate penalty. One judge [T.S. Thakur
J.] would have restored the original two year sentence of the Ansals; the other
[Gyan Sudha Misra J.] would have instead imposed an enormous fine of Rs.
100 crores, earmarked for a trauma center to be “built in the memory of the
Uphaar victims.”43 As of this writing the brothers remain free on bail pending
convening of a three judge bench to resolve the penalty question. The openness
of Judge Misra to a fine (to be utilized on a project related to the demands of
the civil case plaintiffs) of a magnitude far greater than the damages that the
Supreme Court bench in the tort case had been willing to countenance stands
in striking contrast to the reluctance of that bench (in the civil case) to envision damages at a deterrence-generating level.
III. THE SAHA SAGA
In 1986, Parliament passed a Consumer Protection Act that established
a nationwide there level system of consumer tribunals to provide remedies
for deficiencies in purchases of “goods and services”.44 In 1995, the Supreme
Court held that medical services were included under the Act. 45 Thus medical malpractice claimants did not need to invest the court fees and brave the
endemic delays of the ordinary courts. Medical claims became a significant
part of the caseload of the Consumer Tribunals. From 2008 to mid-2012,
the National Consumer Disputes Redressal Commission—the tribunal having original jurisdiction of the largest cases – published 154 judgments in the
medical malpractice area, some 8% of the total of all its judgments for that
period. The claimants prevailed in about 45% of these cases. The cases took
a long time – an average of 11.7 years from filing to final judgement (and the
time elapsed crept up steadily from 10.5 years in 2008 to 12.2 years in the
first half of 2012). What I found particularly striking was the small size of
the judgments. Putting aside for the moment one case that we will come to
shortly, the median of the 31 judgments for which I had figures was Rs. 3.5
lakhs; the average judgment was Rs. 5.3 lakhs. The disconnect between the
size of the judgments and the time expended is glaring. Should we expect the
threat of a judgment of Rs. 5 lakhs some eleven years in the future to generate much of a deterrent signal? Of course, deterrence is generated by the cost,
hassle and reputational effects of litigation, not just by the award. But can we
believe that these are sufficient to send a signal strong enough to induce more
careful behavior?
43
44
45
Sushil Ansal v. State, (2014) 6 SCC 173, 331. Judge Misra left the court on 27-4-2014 when she
reached the compulsory retirement age of 65.
Consumer Protection Act, 1986 (Act 68 of 1986).
Indian Medical Assn. v. V.P. Shantha, (1995) 6 SCC 651.
FROM BHOPAL TO SAHA
151
Less than a year after the Uphaar fire, an Indian-American couple were
visiting their family in Kolkata. He was a medical doctor and she was a 36
year old child psychologist, just embarking on her professional career. Suffering
from a rare but treatable skin ailment, she was hospitalized at the AMRI
Hospital where she was treated by eminent practitioners. The treatment, which
included administration of large doses of an off-label drug (Depomedrol) made
her worse and within weeks she was dead. Her husband, Dr. Kunal Saha,
complained to the West Bengal Medical Council about professional misconduct. The Council exonerated the doctors. Dr. Saha, along with relatives,
brought criminal charges in the West Bengal Courts which resulted in the
conviction under S. 304A of the Indian Penal Code, soon overturned by the
Calcutta High Court. The decision of the High Court with respect to criminal
liability was upheld by the Supreme Court.46 Dr. Saha also filed a claim with
the National Consumer Disputes Redressal Commission (NCDRC)47 against
three of the AMRI doctors for medical negligence, asking for 77 crore. In
2006 his case was rejected by the Commission. Saha represented himself in
all these proceedings – an undertaking costly in many ways—he made some
50 round trips between the US and India, went through bankruptcy in the
United States, and failed to obtain tenure in his academic post in Cincinnati.48
In 2009 the Supreme Court reversed the decision of the NCDRC, held
the doctors liable, and remanded the case to the Commission to determine
the amount of compensation.49 In October 2011 the Commission awarded Dr.
Saha 1.5 Crores.50 On appeal to the Supreme Court on the question of the
compensation amount, the Court directed the doctors and the Hospital to pay
a total of 6.08 Crores along with 6% interest per annum, which nearly doubled the amount.51
What does it tell us that the breakthrough came not in a mass injury
case but in a classic one-on-one (we might say) claim of a single high status
plaintiff suing several individual doctors and a hospital? The elevated damages
were based on the victim’s expectation of a long career at a high American
income. In that respect, the configuration in Saha is a curious reversal of
Bhopal, where we had an American perpetrator and Indian victims; now we
have Indian perpetrators and an American (that is, Indian-American) victim.
The Bhopal settlement dramatized the low monetary equivalent of Indian lives;
Saha displays the high monetary equivalent of an Indian life transmuted into
46
47
48
49
50
51
Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221.
Kunal Saha v. Sukumar Mukherjee, Consumer Case No. 240 of 1999.
Saha filed a claim in the United States against his employer, the Ohio State University, due
to the denial of his tenure. It was dismissed both by the trial court and the Court of Appeals.
Saha v. Ohio State University, 2011 Ohio 3824.
Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221.
Kunal Saha v. Sukumar Mukherjee, Consumer Case No. 240 of 1999, decided on 21-10-2011
(NC).
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.
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an American one. Can this ample evaluation of life be transferred back to
India?
The amount of damages raises tricky questions of valuation in a society
of vast inequality. Would expansive tort damages based on monetary loss reinforce inequality?52 How could damages be arranged to avoid aggravating existing inequalities? Would it be better to rely on a schedule of payments? Would
delivery of such payments by courts as deserved compensation be better than
distribution by governments as ex gratia patronage?
IV. DELAY
So long as there is no effective reduction in delay the presence of
enlarged substantive rights and the award of more substantial damages promises to have little effect. The tort problem is in good measure a procedure
problem.
The problem of delay is not a new one. Over the past century there have
been numerous schemes to attack delay. Most recently, in October 2009, the
then Union Minister for Law and Justice launched a “National consultation
for strengthening the judiciary toward Reducing Pendency and Delays.”53 In
June, 2010 the Minister announced a “National Litigation Policy to reduce
the cases pending in various courts in India under the National Legal Mission
to reduce average pendency time from 15 years to 3 years”54. The National
Judicial Data Grid (repository of judicial data) project and the National
Mission for Justice Delivery and Legal Reforms (for improvement in infrastructure) have been in operation. A “National Court Management Systems
(NCMS): Policy & Action Plan” was released by the Chief Justice of India on
September 27, 2012. The Plan specified that:
“A comprehensive implementation plan for NCMS [National Court
Management Systems] shall be prepared within 2 months of establishment for consideration of Hon’ble the Chief Justice of India.
The implementation plan shall entail not only how National Court
Management Systems will be established but how it will be institutionalized and sustained. It will identify all resource requirements for
the same.”55
Easier said than done. This plan to create an implementation plan seems
to have run aground. In April, 2013, four years after the first sightings of this
52
53
54
55
Richard Abel, A Critique of Torts, 37 UCLA L. Rev. 785.
Held on 24th and 25th October, 2009, at Vigyan Bhawan, New Delhi.
See Ministry of Law and Justice, Press Information Bureau (GOI) Release (23-6-2010).
Supreme Court of India, National Court Management System: Policy & Action Plan 11 (279-2012), <http://supremecourtofindia.nic.in/ncms27092012.pdf>.
FROM BHOPAL TO SAHA
153
initiative, Mohan Parasaran, the Solicitor General of India, told a legal reporter
“[t]he committee [to monitor the National Litigation Policy] met only on a few
occasions and gave some recommendations. Thereafter there has not been any
meeting of minds.”56 A tardy response to a Right to Information application
revealed that the “said policy has not yet been approved by the Government.”57
In November 2014, Sadananda Gowda, the Union Minister for Law and
Justice announced once again that a National Litigation Policy would be formulated to avoid “unnecessary litigation”.58
As far as I can tell there is no indication in government reports, professional sources, or press accounts of the formulation or implementation of this
policy or of any effect on the duration of civil litigation or the volume of cases
pending in the civil courts. In the five years since this “policy” was brought
forward, there is no evidence of a decrease in delay of civil cases or of any
institutional changes designed to accomplish such a decrease.
What can we learn from this about the prospects for reform of civil
justice? Such reform, it strikes me, needs at least two things. One is a plausible program; the second is a constituency that is willing to invest political
resources in its realization. In the case of civil justice reform – and in particular the development of effective tort law –neither of these is in evidence.
56
57
58
This was during an interview by V. Venkatesan, a legal reporter for the prominent news magazine Frontline: (V. Venkateswan): The National Legal Mission aims to reduce the average
pendency time from 15 years to three years. How far has this been achieved?
(Mohan Parasaran): To be frank, that has not been achieved. There has been an increase
in the rate of disposal and awareness.
(V. Venkateswan): The Government appointed an empowered committee to monitor the
implementation of the policy, and you are also an ex-officio member of it. What was been
your experience with this committee?
(Mohan Parasaran): The Committee met only on a few occasions and gave some recommendations. Thereafter there has not been any meeting of minds.
In the course of the interview, the Solicitor General conceded that the litigation policy had not yet been approved by the Government. He commented that “Even though the
same has not been approved, it was widely publicized in 2010 when it was launched, and it
has been at the back of the Government’s mind.” A People’s Court, Frontline, Vol. 30 (8),
3-5-2013.
In November 2013, nine months after a retired government employee filed an application
under the Right to Information Act to find out what had become of the National Litigation
Policy, the Central Information Commission ordered the Law Ministry to respond. Kantilal
Bafna v. Ministry of Law & Justice, Dept. of Legal Affairs, Central Information Commission
Case No. CIC/SS/A/2013/000361, decided on 6-11-2013. The then Union Law Minister, Dr.
Ashwani Kumar, had earlier stated in the Lok Sabha that the policy had not been approved
by the Government yet (in response to unstarred question no. 4064; answered on 21-3-2013).
Ministry of Law & Justice, Enactment of National Judicial Appointments Commission Bill
on Top Priority, says Union Law Minister, Press Information Bureau, (19-11-2014). The
Minister also stated that the Government would prioritise setting up of alternate dispute resolution mechanisms, e-courts, repeal of redundant laws, and appointment of more Judges. This
policy has not been approved by the Cabinet.
154
V. THE
FUTURE :
A
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SECOND COMING OF TORT LAW?
I have argued elsewhere that there is no foundation (as measured by
per capita court use) for the widespread belief that India is a highly litigious
place.59 The courts in India are congested and slow not because there are so
many cases but because there are comparatively few courts60 and because of
deeply ingrained wasteful patterns of indulging delay.61 In the area of personal injury, there is an evident unfulfilled demand for remedies; when there
is access to a usable procedure, even a flawed one, (as in the Motor Accident
Claims Tribunals, in the Consumer Tribunals for medical malpractice, and in
the High Courts’ writ jurisdiction for constitutional torts), there is readiness
to make claims about injuries.62 And in at least some instances where there
is persistent demand for remedies; courts have been responsive and inventive
in devising them. Because the district courts have not been a viable forum,
most of the action is elsewhere – in tribunals, in the writ jurisdiction, and in
the realm of ex gratia payments, with some spillover into the criminal process.
But low rates of filing claims, long delays and meagre awards limit the preventive effects of this litigation. On the whole those who create or ignore dangerous conditions are allowed to buy their way out of responsibility for negligence
at bargain rates. Where claimants brave the obstacles to bring claims, judges
often seem so fearful of bestowing windfalls that they keep the level of awards
too low to project strong deterrent signals.63
Accidental injuries in India seem to be caught in a vicious cycle in
which low damage awards and low probabilities of having to pay them allow
the persistence of dangerous conditions and activities, leading to more uncompensated or undercompensated injuries. One may imagine a future in which
59
60
61
62
63
Marc Galanter, “To the Listed Field…”: The Myth of Litigious India, 1 Jindal Global L. Rev.
65ff (2009).
The number of Judges per 100,000 capita in India is 1, compared to 10.4 in the United States
and 6.6 in England & Wales. Civil law countries like Germany and France have 27.1 and 10.7
Judges respectively. Id.
A long series of accounts highlighting patterns of delay in the courts include Panchkouree
Khan, The Revelations of an Orderly: Being an Attempt to Expose the Abuses of Administration
by the Relation of Everyday Occurrences in the Mofussil Courts (Kesslinger Publishing, 2010)
(1849), the Civil Justice Committee Report, 1925 [1925] known as the Rankin Committee
Report, especially 26-42, and 77th Report on Delays and Arrears in Trial Courts, Law
Commission of India (1978).
Of demand for tort remedies, a recent study of consumer forums by Robert Moog provides
mixed indications. He notes the low rate of use of these of these forums. On the other hand,
the consumer forum in one of the districts in his study has a robust tort docket. See note
27 above. On product liability litigation in the Consumer Courts, see Shilpi Verma, Product
Liability in India – Award of Damages, Product Liability Blog (11-2-2008), <http://productliabilityindia.blogspot.com/2008/02/product-liability-in-india-award-of-html>.
Cf. the comparable problem in China where there is rising resort to tort recovery, but compensation is far less than actual losses, Wei Zhang, The Evolution of the Law of Torts in China:
The Growth of a Liability System (15-8-2014), <http://ssm.com/abstract=2514951 or http://dx.doi.
org/10.2139/ssrn.2514951>.
FROM BHOPAL TO SAHA
155
rising expectations will transform this to a virtuous cycle in which significant
awards will provide incentive for more claims and this enhanced litigation risk
will inspire preventive measures. The challenge is to develop patterns of more
timely, more generous, and more effective awards. Is there a way to get there
from here?64
What sort of reform am I thinking of? Perhaps overall reform is too
much to bite off—not only difficult to bring about, but frankly it is not clear
what will work. We shouldn’t be afraid to admit that we don’t have a readymade solution waiting to be implemented if only other people would cooperate. My guess would be that good substantive tort law is necessary but not
sufficient. If cases take 15 years and produce paltry recoveries, even the best
designed reforms of substantive tort law are unlikely to have substantial effect
on safety practices. What is also needed is procedural reform – not just new
procedural rules, but new practices. But how do we know what will work?
I would propose an experimental approach that is both more modest and
more adventurous than a comprehensive all-India program of reform. Imagine
that there were some designated demonstration districts– or better yet, one or
more states—that, would experiment with possible solutions, like an agricultural program testing new seeds and techniques, investing in better–trained
personnel, and monitoring the results of the new policies. Such initiatives
might include continuous trials, limited appeals, monitoring the enforcement
of judgments, contingency fees65 or conditional fees (with or without supervised ceilings), joinder of similar cases into “class actions,” and measures to
eliminate toleration of delay. We do not know which (if any) of these could
make a consequential difference. One may imagine different experiments in
different localities. One aspect of this open experimentation would be to enlist
the knowhow, energy and imagination of lower court judges, an untapped
resource in most reform schemes.66 I could imagine an important role for law
student interns to assist courts and in implementing and monitoring such
programs.
64
65
66
A Supreme Court bench recently called for the Law Commission to prepare a comprehensive law of tort for government agencies in Vadodara Municipal Corpn. v. Purshottam V.
Murjani, Civil Appeal No. 3594-3611 of 2010, decided on 10-9-2014 (SC). I am arguing that
while across-the-board statutory reforms are desirable, they might better be delayed to a later
point in the reform process when experimentation has generated some shared understanding
of which reform proposals work and which don’t.
In spite of the prohibition of such provisions, fee arrangements of this type are not unknown
at present. I believe it would be greatly advantageous if they were open, recognised, and subject to regulation.
On the problems of pursuing remedies in the lower tiers of the judicial and administrative
system and the possibilities for making the lower courts effective, see Jayanth Krishnan et al.,
Grappling at the Grassroots: Access to Justice in India’s Lower Tier, 27 Harv. Hum. Rts. J. 151
(2014).
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The presence of such “demonstration districts” should not discourage
courts elsewhere from pushing the tort envelope. Judges throughout the system should be encouraged to regard developments in these districts as possible
models and to see how those developments might be applied even without the
statutory frame that covers the experimental districts.
Enhanced tort recovery may contribute to reducing the rate of injuries,
but optimum results require that it be combined with a mix of other preventive measures—reliable inspection, licensing, requirements of improved physical facilities and better education. But setting of behavioral standards and
monetary recovery are areas where the courts play a primary role. And what
courts do can stimulate some of these other developments.
To sum up, my argument is this. First, the present situation in India
is one of too little deterrence of tortious conduct. Second, enhanced recovery of damages from violators of safety standards could have a useful deterrent effect as well as providing deserved help to the injured. Third, to produce
such effects, recovery needs to be both substantial and quick. Fourth, to make
recovery substantial and quick requires thoroughgoing reform of judicial
and professional practices. Fifth, exactly what those reforms should be is not
presently known. Sixth, a period of experimentation and pilot projects could
advance our understanding. Seventh, there is ample talent to devise such projects. And of course, reforms in this area might provide useful lessons for more
general reform.
Identifying rules and practices that could generate optimal deterrence
of harmful practices is only half the battle. The other (and more challenging)
half is institutionalizing such rules and practices in a setting where potential
defendants are accustomed to avoiding accountability and lawyers are accustomed to the existing inefficient system of civil litigation. Institutionalizing a
new tort regime is particularly challenging because the immediate beneficiaries of a better tort regime are a diffuse constituency for whose members exposure to the risk of tortious injury is not a salient concern before something bad
happens. Hence the “the interests of potential victims in safety and prevention
are poorly represented in the political process,”67 whereas potential tort-feasors
are more likely to be aware of the stakes and more capable of political action
in relation to those interests. Given this distribution of incentives to action,
tort may be an issue in which initiatives by judges (not just higher court
judges but also judges in the trial courts), supported by researchers, NGOs and
bar groups, are of vital importance.
67
Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics
and Public Policy 174 (1994).
A Rare Judge
—P. P. Rao*
I. E ARLY YEARS
AND
E LEVATION
I was a student of law when I first heard his name. He was then the
Minister for Law, Home, Prisons etc. in the State of Kerala, in the first ever
Communist Government led by Mr. E.M.S Namboodiripad. He was a brilliant man with strikingly original ideas and a crusader committed to the welfare of the common man. In due course, his name became more and more
familiar and his subsequent career as a Judge of the Kerala High Court,
Member of the Law Commission of India and Judge of the Supreme Court
of India is well known. It was only in 1973 after his elevation to the Bench
of the Apex court that I came to know Justice Krishna Iyer in a personal
capacity.
II. THE A PPOINTMENT C ONTROVERSY
His elevation to the Supreme Court took place within a few months
of Justice A.N. Ray’s appointment as Chief Justice of India, superseding
three senior most Judges. The entire Bar of India was up in arms against the
supersession of Judges following the momentous decision in the Kesavananda
Bharati case,1 curtailing the power of Parliament to amend the basic structure of the Constitution. After Justice Iyer had moved to Delhi as a member
of the Union Law Commission, his friends and admirers started pressing for
his elevation to the Apex court. Chief Justice S.M. Sikri and a section of the
Bombay Bar were against the move due to his political antecedents, including his Minister-ship in the Communist Government.2 Amidst the vehement
*
1
2
Senior Advocate, Supreme Court, assisted by Mr. Vasujith Ram, student of the National
University of Juridical Sciences, Kolkata.
This contribution is a revised and updated version of an article originally included in the
book Justice V.R. Krishna Iyer – Some Profiles (Legal Literacy Society November 1980),
published soon after Justice Iyer’s retirement.
Kesavananda Bharati Sripadagalvaru v. State of Kerala, (1973) 4 SCC 225.
Mr. Soli Sorabjee, former Attorney-General of India, confessed that he had been one of those
who protested his appointment to the Apex Court, but after watching his performance on the
Bench, he became his admirer.
158
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protests, he was elevated as a Supreme Court Judge on 17 July 1973.3 Very
soon his bitter critics became his ardent admirers appreciating his equipment,
ability, qualities and sense of justice.
III. FIRST DAY
AT THE
A PEX C OURT
Out of curiosity I went and sat in his Court, most probably on the very
first day of his tenure in the Supreme Court. In a criminal appeal, arguments
were almost over and the only question under consideration was the quantum of sentence. The counsel for the Appellants tried to impress upon the
Court that the scuffle had taken place among close relatives in the heat of the
moment and resulted in a crime, and that thereafter, the tempers had cooled
down on both sides and the victims were in a mood to settle the issue with
the assailants. As the offence was not a compoundable one, the Counsel for
the convicts appealed for a very nominal sentence. As he started bargaining
for a lesser sentence than what the presiding judge suggested, Mr. Justice Iyer
broke his silence observing that sentence was a matter of discretion with the
court and once that discretion had been exercised by the courts below, there
was little scope for the Appellate Court to interfere with the sentence. This at
once put the Counsel for the Appellants on the defensive mode and there was
not much of bargaining thereafter. The case ended in a few minutes. Not that
he did not interfere with sentence in other cases; he did in several, but only for
reasons which he believed to be sound.
IV. P REDICTABLY UNPREDICTABLE
As a Judge he was predictably unpredictable. One could never take
him for granted. Very often the order which he dictated in a case was least
anticipated by either side. As an Advocate-on-Record, I briefed the late Mr.
M.C. Setalvad for one of the respondents to oppose a special leave petition.
The petitioner was the President of a Panchayat Samiti who had been removed
from office by an order of the State Government after an inquiry into certain
charges of corruption, nepotism and favoritism. He challenged his removal in
a Writ Petition filed before the High Court of the State on the ground that
he had not received any notice of inquiry and that he was denied reasonable
opportunity to present his case. The respondent’s case was that he had been
given every opportunity to participate in the inquiry but he had refused to
receive the notice sent by registered post. The High Court by a reasoned judgment dismissed the writ petition. A Letters Patent Appeal to a Division Bench
of the High Court also failed. Notwithstanding the concurrent findings of
3
George Gadbois notes that “his appointment was greeted by mainstream lawyers and many
others with a chorus of boos, mainly because of his reputation as a leftist and because many
believed that S. Mohan Kumaramangalam was his patron”. See George Gadbois Jr., Judges
of the Supreme Court of India: 1950-1989 213 (2011).
A R ARE JUDGE
159
fact against him, he filed a special leave petition and also filed a stay petition.
In the conference I had with Mr. Setalvad, towards the end, I mentioned to
him about the stay petition and requested him to strongly oppose the stay. Mr.
Setalvad smiled and said: “will things go that far?” Pleased with his reaction,
I left. The petitions were posted for hearing before the Court of Mr. Justice
Iyer. Contrary to our expectations, Mr. Justice Iyer was impressed with the fact
that the enquiry was conducted ex-parte and all that the petitioner was praying for was only an opportunity to present his case and nothing more. In his
turn, Mr. Setalvad emphasized that both the Courts below had given a concurrent finding of fact to the effect that the petitioner was given a reasonable
opportunity but he had not availed it. Therefore, it was not a fit case under
Article 136 for the Supreme Court to interfere. After hearing both sides, Mr.
Justice Iyer dictated an unusual order to the effect that the order of removal
that had been already passed by the Government against the petitioner would
be regarded as provisional and the Government would give the petitioner one
more opportunity to appear and present his case. Thereafter it would be open
to the Government either to confirm the provisional order or to rescind or
modify it. Both sides reconciled to the order and went away with the feeling
that each side had substantially won the case.
V. I NNOVATIVE
AND
QUICK JUSTICE
Justice Krishna Iyer believed in the administration of quick justice. On
countless occasions, he directed the final hearing in the next few days and
disposed of cases by short orders. It looked like “spot justice”. In numerous
cases he passed orders of compromise guided by considerations of equity which
largely satisfied the parties.
When I think of his unusual orders I cannot help but refer to the
momentous stay order4 in Smt. Indira Gandhi’s Election Appeal. The Supreme
Court was in vacation when Justice J.M.L Sinha of the Allahabad High Court
had pronounced the historic judgment allowing the Election Petition filled by
Mr. Raj Narain and unseating Smt. Gandhi who was the then Prime Minister
of India. I was keenly watching that case because during the pendency of the
Election Petition before the High Court, the Central Government had issued
an Ordinance amending the Representation of the People Act, 1951, with
retrospective effect so as to cover all pending cases in order to get over the
Judgment of the Supreme Court in Amar Nath Chawla’s case5 regarding the
election expenses. The Supreme Court had held that expenditure incurred by
a political party sponsoring the candidates in connection with his election also
has to be treated as expenditure authorized by the candidate for the purpose of
S. 123 (6) of the Act. Mr. Raj Narain assailed the validity of the Ordinance
4
5
Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159.
Kanwar Lal Gupta v. Amar Nath Chawla, (1975) 3 SCC 646.
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in a separate writ petition impleading the Union of India as the first respondent and Smt. Indira Gandhi as a co-respondent. The Union of India engaged
the late Mr. Niren De, Attorney General to defend the amendment before the
Allahabad High Court and I was engaged to instruct Mr. De. The arguments
went on for a few days before Mr. Justice J.M.L. Sinha. Mr. Shanti Bhushan
appeared for the petitioner. Mr. Raj Narain himself used to attend the court
every day with quite a few of his followers. Mr. Justice Sinha allowed the
Election Petition of Raj Narain and unseated Smt. Gandhi, but dismissed his
Writ Petition and upheld the impugned amendment to the Representation of
the People Act, 1951. However, he granted unconditional stay of the operation
of his judgment in the Election Petition for a limited period to enable Smt.
Indira Gandhi to approach the Supreme Court.
Smt. Gandhi preferred an appeal before the Supreme Court within
a few days and applied for stay of the operation of the impugned judgment.
Mr. N.A. Palkhivala moved the stay petition on her behalf before Mr. Justice
Krishna Iyer in the vacation Court. Mr. Shanti Bhushan appeared for the
respondent and opposed the stay. The stay petition was argued at length by
both the Counsels. The court room was packed to capacity throughout the
hearing. Finally the order on the stay petition was reserved for the next day
and then came an unusually long, reportable conditional stay order from the
pen of Mr. Justice Krishna Iyer holding in substance that Smt. Gandhi could
continue as Prime Minster but will be subject to certain restrictions in her
capacity as a Member of the Parliament. This is a classic example of Justice
Iyer’s balancing feat. As it happens in such cases, both sides claimed that the
order was in their favour. What followed thereafter is now a matter of history.
A national emergency was then declared on the ground of internal disturbance
threatening the security of India.
VI. C OMMITMENT
TO
S OCIAL JUSTICE
Although the outcome of a case or the terms of the final order/Judgment
was by and large unpredictable, Justice Iyer’s possible attitude towards a variety of issues was broadly predictable. If it was a labour matter, his sympathies
would always be with the workmen. His judgment in the Bangalore Water
Supply and Sewerage case 6 giving the widest possible meaning to the expression
“industry” will remain a landmark Judgment in labour law, notwithstanding
its far reaching effects on several small scale industries and charitable organisations. It was a common Judgment covering a large number of cases. I appeared
for the workmen in one of these cases and even then I had not expected that
the judgment would go to the extent of including almost every conceivable
organized activity within the definition of “Industry”. Shortly thereafter I was
to appear for a Gandhi Ashram against its Workmen. The question involved
6
Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978) 2 SCC 213.
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was whether piece-raters were entitled to paid holidays like regular workmen.
The Industrial Tribunal found that the Gandhi Ashram was not in a position
to bear any additional burden. In fact, the Ashram was surviving mainly on
the contributions made by the Central Government from time to time. Even
so the Tribunal ordered payment of wages to piece-raters even for holidays
observed by the Ashram. The matter came up before a bench presided over by
Mr. Justice Krishna Iyer. To add to my difficulties, Mr. Justice D.A. Desai was
also on the bench. His attitude towards workmen was just the same – in fact
he was more vocal about it. I was fully conscious of the uphill task before me.
Being aware of the acute financial position of the Ashram I also felt that the
recent judgment of the Supreme Court on “Industry” might eventually lead to
the closure of all such establishments which are basically meant to serve the
people in the rural areas with a missionary spirit. Within minutes the appeal
was disposed. The only indulgence I could get from the bench was the facility
of payment of arrears which had accrued over the years in convenient instalments. The representatives of the Ashram who were present at the hearing saw
the writing on the wall. They left with the consolation that at least this much
of consideration was shown to the Ashram.
I was once engaged to appear in a service matter for a retired Audit
Officer. The order of his compulsory retirement was under challenge. My client after losing the case in two rounds before the High Court, confidently
remarked: “It is the last key of the bunch that is sure to open the lock”. The
Supreme Court granted the special leave. My client was fairly well known
for his knowledge of astrology. On the day when his appeal was to be heard
finally, he came to me in the morning and predicted his success in the
appeal. He was jubilant that the appeal was posted before V.R. Krishna Iyer
and R.S. Pathak, JJ. He said that according to his stars the arguments would
be brief, the judgment would be pronounced on the same day and it would
be in his favour. I thought his predictions were inspired by self interest, but
I was wrong. When the case reached within a few minutes of my arguments
the Judges felt that the impugned order of retirement was not passed by the
competent authority and immediately called upon the other side to reply.
The Government Counsel could not satisfy the Court. The stenographer was
called and the judgment was dictated on the spot. My client beamed with joy
because both his success in the appeal as well as his prediction proved true. I
had the satisfaction that at least an astrologer could predict Mr. Justice Iyer’s
verdict correctly.
In a case pertaining to land ceiling he would not only lean in favour of
the legislation, but also find fault with the Government for not implementing
the law quickly. I remember once when a stay petition filed by a land owner
came up before him in a land ceiling matter, Justice Iyer passed an order
directing my client, the respondent Government, to distribute the land already
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surrendered by the land owner to the weaker sections in terms of the legislation and report compliance to the court within three months or so.
He was unhappy that the then Land Acquisition Act which assured
full market value and a solatium of 15% for the land acquired remained unamended. Once in a Land Acquisition case I was one of the Counsel appearing
for the State. The Advocate for the appellant land owner vehemently argued
for more compensation than what had already been given progressively by the
courts below. When the counsel for the Appellant repeatedly emphasized that
the land values in Hyderabad soared high after the formation of the State of
Andhra Pradesh, Mr. Justice Iyer asked him what the contribution was of his
client either to the formation of the enlarged State or to the rise in the value
of the land. If his client’s contribution was nil, then the benefit of the automatic rise in land value would go to the State, which acquired it for a public
purpose. This clinched the issue and thereafter the judgment was a foregone
conclusion. In the judgment Justice Iyer observed:
“By way of aside one may say that socio-economic development of a
city may enhance the value of space without any of the littlest contribution by its owner and it is, in one sense, unfair that society should
pay to an individual a higher price not because he has earned it but
because of other developmental factors. Of course, we are concerned
with the Land Acquisition Act as it is and this thought thereof need
not be pursued ”7.
His concern for the “small man” in Land Acquisition cases was voiced
in Gurdial Singh’s case8 when he observed: “It is fundamental that compulsory
taking of a man’s property is a serious matter and the smaller the man the
more serious the matter”.
If it was a case of eviction of a tenant, his sympathies would be with the
tenant. In numerous decisions and orders, he enlarged the scope of statutory
protection to the tenant. Even when he felt constrained to dismiss a tenant’s
petition for special leave, he liberally granted time to vacate in many cases.
If it was a case of reservation of posts or seats in favour of Scheduled
Castes, Scheduled Tribes or Backward Classes, he was clear in his mind that
as far as possible the reservation should be upheld. In the celebrated case State
of Kerala v. N.M. Thomas9, I was to instruct the Solicitor-General of India. The
question was whether Article 16(1) itself permitted classification of backward
classes so as to enable the State to confer certain benefits and grant some concessions in favour of persons belonging to Scheduled Castes and Scheduled
7
8
9
Mirza Nausherwan Khan v. Collector (LA), (1975) 1 SCC 238, 240.
State of Punjab v. Gurdial Singh, (1980) 2 SCC 471, 477.
(1976) 2 SCC 310.
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Tribes. Throughout the hearing one could see how passionately he was committed to the cause of the weaker sections and how keen he was to uphold
the rule in question. His judgment is a classic exposition of the constitutional
commitment to weaker sections. At the same time, it exposes how all reservations made under Articles 15(4) and 16(4) are being absorbed by the upper
most layers of these classes. Thus, the concept of exclusion of creamy layer was
born.
In fatal accident cases, he was in favour of strict liability. As a Member
of the Law Commission he was a signatory to the 51st Report wherein several
recommendations have been made for law reform However, Parliament is not
accustomed to move in such matters quickly. In Darshana Devi’s case10 he
observed:
“Hit-and-run cases are common and the time is ripe for the court
to examine whether no-fault liability is not implicit in the Motor
Vehicles Act itself and for Parliament to make law in this behalf to
remove all doubts. A long ago Report of the Central Law Commission
confined to hit-and-run cases of auto-accidents is gathering dust. The
horrendous increase of highway casualties and the chronic neglect of
rules of road-safety constrains us to recommend to the Central Law
Commission and to Parliament to sensitize this tragic area of tort law
and overhaul it humanistically.” 11
Dismissing the special leave petition filed by the Haryana State, he said:
“Here is a case of a widow and daughter claiming compensation for
the killing of the sole bread-winner by a State Transport bus; and the
Haryana Government, instead of acting on social justice and generously settling the claim, fights like a cantankerous litigant even by
avoiding adjudication through the device of asking for Court fee from
the pathetic plaintiffs.”
VII. L OVER
OF
L IBERTY
His deep and abiding respect for life and liberty is reflected in many of
his judgments. His concern for prisoners was indeed great. As a Minister in
Kerala he had personal knowledge of prison conditions. In several judgments
he made constructive and useful suggestions for prison reforms and issued
directions for providing more humane treatment to the prisoners within the
framework of the existing law. In Sunil Batra’s case12 he observed: “Karuna is
10
11
12
State of Haryana v. Darshana Devi, (1979) 2 SCC 236.
Id. At 238.
Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, 509.
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a component of Jail Justice. Basic prison decency is an aspect of Criminal justice.” In this judgment he spelt out extensive guidelines for the exercise of the
power under S. 56 of the Prisons Act in the matter of imposition of bar fetters on convicts. A little later, in Prem Shankar Shukla’s case13 he ruled that
handcuffing of under-trial prisoners is permissible only in very exceptional situations. His passionate pleas for amelioration of prison conditions and for early
prison reforms will be remembered for a long time to come.
A. Reformative Justice
His reformative zeal for correcting the convicts led him to suggest new
recipes. In Mohd. Giasuddin’s case14 , I represented the Respondent State. The
appellants were convicted under S. 420 IPC for cheating young unemployed
persons of a sum of Rs.1200/- by false promises that they would secure jobs
for them through politically influential friends. The Trial Court convicted
them and awarded a sentence of three years rigorous imprisonment. The first
Appellate Court and the High Court confirmed the convictions and sentence. In the Supreme Court the question of sentence alone was appealed to
the Bench. Iyer J. in his judgment observed: “The humane art of sentencing
remains a retarded child of the Indian criminal system”. He further added
“that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals mental and moral – is the key to the
pathology of delinquency and therapeutic role of punishment. The
whole man is a healthy man and every man is born good. Criminality
is a curable deviance”.
While reducing the sentence to eighteen months and imposing a fine of
Rs.1200/- with a direction to pay it over to the victim of cheating, he suggested transcendental meditation propagated by Maharishi Mahesh Yogi as a
corrective to the convict.
In an abduction case from Bihar, a girl of seventeen years was pushed
into a cab and carried away by the abductor for trading in flesh. She was
enslaved in a village and later offered for marital sale. She somehow escaped
and reported the matter to the police. The accused was convicted and sentenced to 3 years rigorous imprisonment by the courts below. The convict
approached the Supreme Court for special leave to appeal. Dismissing the petition, Iyer J. observed:
“All that we can do is to reject the pleas with indignation and follow it up with an Appeal to the State Governments of Bihar and of
13
14
Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.
Mohd. Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, 289.
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Haryana to put a special squad on the trail and hound out every such
offender so that the streets of our towns and cities may be sensitized
and safe after sunset for Indian womanhood”.15
In Kunjukunju’s case16 the appellant developed sexual relations with a girl
and as an offshoot thereof, killed his innocent wife and two children brutally
at the dead of night when they were asleep. Iyer J. found there was no material
to hold that the accused was a social security risk altogether beyond salvage by
therapeutic life sentence. According to him, “a course of anti-aphrodisiac treatment or willing castration is a better recipe for this hyper-sexed human than
outright death sentence.” In Rajendra Prasad’s case17 he reiterated his belief in
yoga:
“Yoga in its many forms seems to hold splendid answers. Meditational
technology as a tool of criminology is a nascent – ancient methodology.
The State must experiment. It is cheaper to hang than to heal, but
Indian life- any human life – is too dear to be swung dead save in
extreme circumstances.”
B. A Vehement Abolitionist of Capital Punishment
His crusade against capital punishment deserves a special mention. He
made no attempt to conceal his firm conviction that this extreme punishment
is inhuman and should be abolished. In Ediga Anamma’s case18 he outlined
the positive indicators against death sentence under Indian law and commuted
death sentence to life imprisonment. This decision has been followed in several
other cases. In Rajendra Prasad’s case he restricted the scope of death sentence
under S. 302 IPC. Even outside the Court he advocated for the abolition of
the death sentence. I attended a meeting organised by the Indian Law Institute
in which he participated and made a strong plea for abolition of the death
sentence.
In Dalbir Singh’s case19 his judgment opens with these words: “Death
sentence is Parliament’s function. Interpretative non-applications of death sentence when legislative alternatives exist is within judicial jurisdiction.” He reiterated the principles laid down in Rajendra Prasad’s case and then concluded:
“Modern neurology has unravelled through research the traumatic
truth that aggressive behaviour, even brutal murder, may in all but
15
16
17
18
19
Devki v. State of Haryana, (1979) 3 SCC 760.
Kunjukunju Janardhanan v. State of Kerala, Criminal Appeal No. 511 of 1978 sub nom
Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646.
Rajendra Prasad v. State of Uttar Pradesh, (1979) 3 SCC 646, 687.
Ediga Anamma v. State of Andhra Pradesh, (1974) 4 SCC 443.
Dalbir Singh v. State of Punjab, (1979) 3 SCC 745, 754.
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not negligible cases be traced to brain tumour. In such cases cerebral
surgery, not hanging until he is dead, is the rational recipe. This factor
is relevant to conviction for crime, but more relevant to the irrevocable
sentence of death.”
C. A Realist
His approach to appreciation of evidence in rape cases is realistic. In
Krishan Lal’s case20, he observed:
“We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim’s version. What
girl would foist a rape charge on a stranger unless a remarkable set of
facts or clearest motives were made out? The inherent bashfulness, the
innocent naïveté and the feminine tendency to conceal the outrage of
masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.”
D. Refreshing Approach to Bail
Mr. Justice Iyer is to some extent responsible for the liberal attitude of
the Supreme Court in bail matters in the seventies and the eighties. The practice earlier was generally to refuse bail in cases involving a sentence of about
three years or more. In life sentence cases, bail was unthinkable. Now, long
delay in disposing of the appeal is considered a relevant factor for granting the
bail. In Gudikanti Narasimhulu’s case21 Iyer J. opened his order with the poser:
“Bail or Jail?” He outlined the relevant factors, which included the period in
prison already spent and the prospect of the appeal being delayed for hearing. In his view, bail is the rule and jail is an exception. He was in favour of
granting bail stipulating protective and curative conditions. He was definitely
against imposing onerous conditions relating to security and sureties. He ruled:
“Heavy bail from poor man is obviously wrong. Poverty is society’s malady
and sympathy, not sternness, is the judicial response.”
In Moti Ram’s case22 speaking for the Court, he endorsed the view that
the magistrate should always bear in mind that monetary bail is not a necessary element of the criminal process and remarked that:
“ if a Magistrate is satisfied after making the enquiry into the condition and background of the accused that the accused has his roots in
20
21
22
Krishan Lal v. State of Haryana, (1980) 3 SCC 159, 161.
Gudikanti Narasimhulu v. High Court of Andhra Pradesh, (1978) 1 SCC 240.
Moti Ram v. State of M.P., (1978) 4 SCC 47, 54.
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the community and is not likely to abscond he can safely release the
accused on order to appear or on his own recognizance”.
He concluded the judgment observing: “The best guarantee of presence
in court is the reach of the law, not the money tag.”
VIII. H E STOOD
FOR
NATUR AL JUSTICE
His judgment in M.S. Gill’s case 23 is a landmark concerning the principles of natural justice. M.S. Gill was the Congress candidate at the
1977 General Elections to the Lok Sabha from Ferozepur Parliamentary
Constituency. After the counting of votes in all the Assembly segments was
over and while counting of postal ballots was in progress in the office of the
Returning Officer, there was an outbreak of violence resulting in loss of some
ballot papers. However, according to the result sheets of all Assembly segments available the appellant had established a comfortable lead over his nearest Akali rival. As the result was not declared and subsequently the Election
Commission cancelled the poll, Gill challenged the order of the Commission
in a petition under Article 226 before the Delhi High Court. A Division
bench of the High Court dismissed the petition both on merits as well as on
the ground of jurisdiction. In the Supreme Court, I appeared for Gill in his
special leave petition and also at the final hearings of the appeal. The matter was heard first by V.R. Krishna Iyer and P.K. Goswami, JJ. They ignored
the preliminary objection raised by Mr. Phadke, Counsel for the Akali candidate that the appeal was not maintainable as no petition would lie under
article 226 to challenge an order passed in the course of election as held in
Ponnuswamy’s case.24 A few days after the judgment was reserved, a notice was
served on the counsel for the parties asking them to appear in court as the
matter was being posted for directions. The Court passed a short order referring the matter to the constitution bench, which was least expected. However,
when the matter came up before the constitution bench it became apparent that the two learned Judges who heard the matter earlier had differed.
Ultimately, the majority judgment of the constitution bench was delivered by
Mr. Justice Krishna Iyer. It is significant inter-alia for the propositions of law
laid down regarding observance of the principles of natural justice. The Court
held that before passing such orders an opportunity, however brief and abbreviated it may be, ought to be given to the persons likely to be affected. He
neatly summed up the law:
“Fair hearing is thus a postulate of decision-making. Cancelling a
poll, although fair abridgement of the process is permissible. It can be
fair without the rules of evidence or forms of trial. It cannot be fair if
23
24
Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405.
N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64.
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apprising the affected and appraising the representations is absent. The
philosophy behind natural justice is, in one sense, participatory justice
in the process of democratic rule of law.”
It is one of the rare cases where the Supreme Court was persuaded to
declare the law in general public interest while holding that the writ petition
filed under Article 226 was not maintainable. In view of the law declared by
the Court the appellant could get relief from the High Court in the election
petition. The election held pursuant to the impugned order was set aside by
the High Court.
IX. A PPRECIATION
OF THE
BAR’S A SSISTANCE
His unfailing courtesy to the Counsel – Senior and Junior alike, and his
spontaneous and unreserved appreciation of the assistance received endeared
him to the Bar. Appearing for the Respondent – State in Mohd. Giasuddin’s
case I remember taking a positive stand in line with his reformative approach.
That apart, at the conclusion of the hearing when the Counsel for the appellant was seeking time to deposit the amount of fine on the ground that he
had the money but did not bring it to the court, I offered to advance the
money from my pocket then and there to save the court’s time. The judge was
pleased. Towards the end of his judgment he expressed his appreciation of the
services rendered by the Counsel. In M.S. Gill’s case25 also he gave a pat to
all the Counsel. In Ediga Anamma’s case26 the Counsel who appeared as amicus curiae received due appreciation for presenting a painstakingly meticulous
argument on behalf of the prisoner. In Gurdial Singh’s case27 he appreciated
the attitude of the Government Counsel who dissociated himself from supporting the State action, if any, which in the Court’s view was seared with bad
faith. He observed in his judgment: “Counsel in Court are ‘robed’ representatives, within the parameters of the adversary system, geared to the higher cause of
justice, not amoral attorneys paid to ventriloquize the case of the principal.”
X. I NIMITABLE STYLE
OF
WRITING JUDGMENTS
His style of writing judgments was inimitable but natural. At times
it may appear that he was influenced by the American way of writing judgments. The text of his judgments was an impressive blend of law and literature.
Often the point at issue is picturesquely presented in the very first paragraph
itself. In this respect, as in some others, he was a trend-setter. His vast learning is reflected in his writings. His judgments abound with quotations from
Mahatama Gandhi, Jawaharlal Nehru, Jaya Prakash Narayan, Anatole France,
25
26
27
Supra note 23.
Supra note 18.
Supra note 8, at 474.
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Winston Churchill, President Carter and a host of others. For example, in
Commissioner of Expenditure Tax v P.V.G. Raju28 , one of the questions to be
considered was whether politics is a profession or an occupation. He observed:
“Harold Laski treated politics as a science and wrote his well-known
book on the Grammar of Politics, but the art of politics at a practical level has also been the subject of comment and has been praised
and denounced on the basis that it is a profession. To Gandhiji it is
sacred as religion. In Lincoln it rises to noble heights of statesmanship.
Lenin, Nehru and a galaxy of other great visionaries and makers and
moulders of the modern world have dedicated themselves to politics as
a profession. Of course in its vulgar and vicious manifestations, this
occupation has been regarded by literary giants like Dr. Johnson as the
‘ last refuge of a scoundrel’. Robert Louis Stevenson has used barbed
words: ‘Politics is perhaps the only profession for which no preparation
is thought necessary’ (Familiar studies of Men and Books, ‘YoshidaTorajiro’). George Bernard Shaw uses stinging language in Major
Barbara: ‘He knows nothing; and he thinks he knows everything. That
points clearly to a political career’. It is thus clear, without reference
to the wealth of case-law relied on by the High Court, that politics
has been a profession and, indeed, under modern conditions in India,
perhaps the most popular and uninhibited occupation-with its perils,
of course.”
His language is as unconventional as his approach to the issues. The following passage from his judgment in Charles Sobraj’s case29 serves as a sample:
“Contemporary profusion of prison torture reports makes it necessary
to drive home the obvious, to shake prison top brass from the callous
complacency of unaccountable autonomy within that walled-off world
of human held incommunicado. Whenever fundamental rights are
flouted or legislative protection ignored, to any prisoner’s prejudice,
this Court’s writ will run, breaking through stone walls and iron bars,
to right the wrong and restore the rule of law. Then the parrot-cry of
discipline will not deter, of security will not scare, of discretion will
not dissuade, the judicial process. For if courts ‘cave in’ when great
rights are gouged within the sound-proof, sight-proof precincts of prison
houses, where, often, dissenters and minorities are caged, Bastilles will
be re-enacted. When law ends tyranny begins; and history whispers,
iron has never been the answer to the rights of men. Therefore we
affirm that imprisonment does not spell farewell to fundamental rights
28
29
(1976) 1 SCC 241, 244.
Charles Sobraj v. Superintendent, Central Jail, (1978) 4 SCC 104, 107.
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although, by a realistic re-appraisal, courts will refuse to recognise the
full panoply of Part III enjoyed by a free citizen.”
As a Judge he tried to provide the healing touch in his own way. In
his judgments and speeches he sometimes referred to the immortal words of
Jawaharlal Nehru about Mahatma Gandhi’s mission of wiping every tear from
every eye. He observed in Eswara Iyer’s case,30
“Litigants are legal patients suffering from injustices seeking healing
for their wounds. Would you tell a sufferer in hospital that because he
disclosed a certain symptom very late therefore he would be discharged
without treatment for the sin of delayed disclosure? Humanism, which,
at bottom sustains justice, cannot refuse relief unless, by entertaining
the plea, another may sustain injury.”
An unconventional judge is bound to provoke reaction from at least
some of his brother Judges. In Rajendra Prasad’s case31 A.P. Sen, J. wrote a
strong dissenting Judgment. According to him: “the humanistic approach
should not obscure our sense of realities. When a man commits a crime
against society by committing a diabolical, cold-blooded, pre-planned murder
of one innocent person the brutality of which shocks the conscience of the
court, he must face the consequence of his act. Such a person forfeits his right
to life.”32
In Bachan Singh’s case33 Kailasam, J. took the view that the judgment
of Krishna Iyer, J. in Rajendra Prasad’s case was in many respects contrary to
the law laid down by the Constitution Bench in Jagmohan Singh’s case34 and
observed:
“The Court has proceeded to make law as regards the conditions
that are necessary for imposition of a sentence of death under S. 302
I.P.C. It has proceeded to canalisation of sentencing discretion and has
embarked on evolving working rules on punishment bearing in mind
the enlightened flexibility of social sensibility. In doing so I feel the
court has exceeded its powers conferred on it by law.”
30
31
32
33
34
P.N. Eswara Iyer v. Supreme Court of India, (1980) 4 SCC 680, 694.
Bachan Singh v. State of Punjab, (1979) 3 SCC 727, 736.
Jagmohan Singh v. State of U.P., (1973) 1 SCC 20.
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Tulzapurkar, J. also reacted to the style and content of Mr. Justice Iyer’s
judgments, in the case of Manohar Nathurao Samarth v. Marotrao35. Mr. H.M.
Seervai shared the same view in his book “Constitutional Law of India”36.
XI. P ERSONAL L IFE
He appeared to be a terribly lonely man after the tragedy of his wife’s
death. He was visibly affected by the loss of her companionship. In his Gandhi
Peace Foundation Lecture, 1976, he observed in passing: “And I, if anything,
am a flimsy faggot once feebly afire but now mostly extinguished by tragic
personal circumstances.”37
As a person he was unassuming and intensely humane. In 1976 he
underwent a surgery at the Dr. Ram Manohar Lohia Hospital, shortly after
I was designated as Senior Advocate by the Supreme Court. I heard that the
post-surgical phase in his case was very painful. I went to the nursing home
to see him and wish him a speedy recovery. When we entered the room, there
he was lying in bed in great pain. As I greeted him, he smiled and told me
that all judges unanimously thought that I was deserving of the designation
as a Senior Advocate. I was deeply touched by his sentiments and the way
he expressed them at a time when I least expected it because of his painful
condition.
He was basically a hardcore rationalist. He initially shared the platform
with Abraham Kovur to challenge the spiritual powers of Sri Satya Sai Baba.
But after he came in contact with Sai Baba, he became his admirer.
He participated in public functions without any reservations. Whenever
he was invited by the United Lawyers Association of which I was the founder
President, he readily accepted the invitation, participated in our functions
and made them a success. The inaugural address delivered by him at the
Symposium on conditions of Judiciary with special reference to the subordinate
Judiciary’ impressed one and all.
A term of over seven years on the Bench of the Supreme Court must
be a strenuous engagement considering the amount of reading and writing
involved. He left the Supreme Court having made a great impact. His values,
his approach, his methods, his remedies and recipes, his language and style of
judgment-writing have no doubt raised some controversies. However, the fact
remains that during his tenure numerous litigants who may be collectively
described as the ‘weaker sections’ who might as well have lost their cases on
35
36
37
(1979) 4 SCC 93.
H.M Seervai, Constitutional Law of India vii (2d. ed., Vol III).
V R Krishna Iyer, Jurisprudence and Jurisconscience a la Gandhi 1 (1976).
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one technical ground or the other before other benches, got relief from him in
the name of social justice. Several lives condemned to death have been saved
by him. He sowed some seeds of thought which took root even before his
retirement and became a source of inspiration to some of his successors.
In an article written after his retirement, I had mentioned that “we
may reasonably expect that even after his retirement he will continue to work for
the causes so dear to him which are none else than the aims and objects of our
Constitution”. My guess was correct. He emerged as the powerful voice of the
people to guide and correct the persons in authority without fear or favour,
affection or illwill.
When Mr. F S Nariman was invited to speak on pathfinders in the
Supreme Court, he named only two Judges- Chief Justice Koka Subba Rao
and Justice V R Krishna Iyer.38 A crusader against injustice and an ardent
advocate of change for the better, a person with simple habits, he was a friend
of all. He would not hesitate to join any one fighting against injustice. To him,
the cause was more important than the persons who espoused it. At one time,
he was labelled a communist, later a leftist and finally he was seen as a radical humanist in the real sense. He was an institution. He has inspired many
persons with his philosophy of life, his concern for the poor and his insatiable
hunger for socio-economic justice to the people of India. Justice Iyer was truly
a legend in his lifetime. At the celebration of his birth centenary, organised
recently by Lexis Nexis, I strongly supported the proposal for his portrait in
the Supreme Court of India and the award of Bharat Ratna to him. By honouring him, “We, The People of India” will be honouring ourselves.
38
In his autobiography, Nariman writes, “Whilst Subba Rao had an obsessive concern with
Fundamental Rights, Krishna Iyer’s concern was broader – for the poor and downtrodden”.
Fali Nariman, Before Memory Fades: An Autobiograpy 325 (2010).
Granville Austin: A Tribute
—Upendra Baxi*
I.
I write a longish tribute to Granville Austin (known as ‘Red’ to his
friends because of his youthful red hair turned in later life to majestic grey) for
several reasons. His work on the Indian Constitution is well-known but not
well studied; while he is well-cited by Justices and scholars, his work has not
been accorded a careful and studious exploration and examination. The very
few exponents of a new tradition, which I name as ‘comparative constitutional
studies’ (COCOS), have attained as much fame as him.
Austin described himself as an ‘independent scholar’; this was a puzzling
description because all true ‘scholars’ were in my view ‘independent’ both of
the state and the market. I began to like the expression in later life not as
someone who was a salaried or tenured academic but as someone who was
nonetheless scholarly. There are many academics in India who are not scholarly and many scholars who are not academics (i.e., campus careerists or campus-based teachers or fellows).
I had the privilege to know Granville Austin personally since the
mid-seventies; I wrote a monographic review of his classic The Indian
Constitution: The Cornerstone of a Nation1 in 1967. At the urging of Professor
Lotika Sarkar and Chachal Sarkar, I sent him the bulky copy of my review
article, never to hear from him! In the mid-seventies when we finally met, he
was kind enough to acknowledge the receipt but never entered into any discussion on our differences. We met many a time at conferences which resulted
into valuable works2, but Red never discussed the review. In the mid-eighties, I
*
1
2
Emeritus Professor of Law, University of Warwick and University of Delhi.
Granville Austin, The Indian Constitution: Cornerstone of a Nation (1996). See
also, Upendra Baxi, “The Little Done, The Vast Undone”: Reflections on Reading Granville
Austin, The Indian Constitution 9 JILI 323-430 (1967).
See India’s Living Constitution: Ideas, Practices, Controversies [Z. Hasan,
E. Sridharana & R. Sudarshan (Eds.), 2002]; Upendra Baxi, Modelling “Optimal”
Constitutional Designs for Government Structures: Some Debutant Remarks in Comparative
Constitutionalism in South Asia 23-44 [S. Khilnani, V. Raghavan & A. Thiruvengadam
(Eds.), 2013].
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met R. Sudarshan (the then representative of Ford Foundation, who generously
aided Red’s second book) and told him that he should not do it, as we were
barely recovering from his first book which promoted a consensus or accommodative view of constituent assembly debates and history!
There is an air of mystery to the second coming of Granville Austin.
After his first book, Austin took a quarter century ‘sabbatical’ from India. He
did not revise it. He did not respond to reviews, including my monographic
review article; it is as if he exiled Indian constitution from his universe. We
do not know what interested him in the interim and what revived his interest in the Indian Constitution. Red nevertheless went ahead with what became
a major tome, surveying the scene since the Cornerstone. I reviewed the second book in the EPW as ‘Gospel According to St. Granville’3; in part it was
provocative enough to draw Red into a wider engagement and discussion with
his theory of the Indian State. Apart from the acknowledgement that I was a
‘friend and critic’ of his work and that it was a ‘privilege’ to chair a discussion
in which I was taking part, Red (in SOAS, London in late eighties) did not
say anymore. This reticence has always puzzled me.
The only thing Austin is willing to say about himself is that he is an
‘independent scholar’. This is more than the bravado of the blurb. He comes
back, sees, and conquers. The other of an ‘independent scholar’ is an immersed
one, in an enviable position. Untouched by the pathos and the bathos of politics of the times, he is able to revisit the scene of the crime, as it were, at the
time, manner, and circumstance of her own choosing and then claim for her
narrative the manifest merit of ‘objectivity.’ An independent scholar does not
lack a measure of commitment to the object of his discourse. Austin’s affection for the Indian democratic triumph is written large on this book. However,
unlike the immersed scholars, whose work and experience he so generously
cites, Austin speaks to us, as it were, from an Olympian height.
Not too many authors have enjoyed the privilege, in one lifetime, of
writing two definitive, and much cited, books on the origins and development
of a constitution; and Granville Austin will always be known for his books
and articles on the Indian Constitution. He wrote frequently and with a felicity that eludes most writers on the subject and will always command a wide
and abiding readership.
3
Upendra Baxi, Saint Granville’s Gospel: Reflections (Review of Granville Austin’s, Working a
Democratic Constitution: A History of the Indian Experience), 36(11) Econ. & Pol. Wkly.
921-930 (2001). (I borrow here some formulations from this article). See also, Vikram
Raghavan, “INDIA’S CONSTITUTIONAL HISTORIAN: GRANVILLE AUSTIN (19272014)” Economic & Political Weekly XLIX: 37, 40-43. Raghavan offers a full history (as is
known) of the making of Austin’s second book; also he ends with a tantalizing suggestion
that there was third book (on the Emergency) that was in the offing.
GR ANVILLE AUSTIN: A TRIBUTE
175
Even as I bid him an adieu, I shall forever miss his invitation to share a
bed and bourbon at his home in Washington DC.
II.
Granville Austin endeavours to place chaotic constitutional happenings
in some sensible order of explanation. Unlike the immersed scholar who thinks
that she knows what has happened and why, her task is to certify or combat
constitutional events within the context of situated critique, Granville Austin
offers an alternative and a worthwhile caution: constitutional politics remains
easy to judge, but difficult to explain. Not merely is it the case that we do not
know, but the situation is that we may never know why certain constitutional
events occurred as they did. Even as Austin brings to us in abundant measure
the realm of the constitutional unknowable, he exemplifies the craft of a constitutional sleuth. In every sense of the word, Granville Austin is the Sherlock
Holmes of the Indian constitutional development, even as ‘My Dear Watson’
may still remain very puzzled!
In a few well-chosen words, Austin tells us that his second book is “a
history, and not a law book”; it is also a book about “politics and economics,
conditions and culture”. The book offers narratives about “what human beings
do ill or well while governing themselves”.4 Austin’s method (only in India,
thanks to the ICSSR, we use the expression ‘methodology’ which stands for
a science of methods and not methods actually chosen for the work) is simple
but rigorous; he does contemporary history by consulting all available written
sources and supplements this by talking with, as many as possible, constitutional elites. The contemporary history that he writes about with rare felicity is
about political leaders and other actors; not the history of subaltern citizens or
their struggles for justice. Measured by the objectives frankly exposed, Austin
succeeds in his method and objective: his narrative is one of the fractured and
scattered constitutional hegemonies. He is aware, no doubt, of other ways of
narrating contemporary history (as we discussed in Section 111 in some detail)
but he prefers to take a ringside view of what are changing poltical and constitutional entities. So seductive is Granville Austin’s style, that an unwary reader
is likely to believe that this meta-narrative of putting the Indian Constitution
to work is the only, even the best, genre for telling stories about the constitutional life of Bharat that once upon a time was truly called India.
Granville Austin deserves to be called a saint for a variety of reasons. He
dispenses benedictions like a saint would do; he also has a benign view of the
world as a whole; the evil of the world is a temporary phenomenon distracting
4
Granville Austin, Working a Democratic Constitution: A History of the Indian
Experience 1 (1997). Austin is in distinguished company of many scholars who tend to
ignore the competing Arathsastra tradition.
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from much that is good. A true hermit, he contemplates for long, nearly
a quarter century, before emerging with a new benediction for the Indian
Constitution. Like a true hermit, his poorva ashram (earlier life) is neither relevant nor decisive. The tapasya is awe–inspiring; he converses with all varieties
of constitutional mortals to enunciate the power and the glory of Indian constitutionalism at work. Yet he manages to stand tall, above them, bearing the
gift of prophecy. He remains interested in ferreting out mundane and venal
reasons for the deterioration of the body of the constitution. Nevertheless, he
believes that even as the flesh is weak, the spirit is strong, and forever, he is
questing for the soul of the Indian constitution. Twenty-four years ago, he
enunciated (what Sanford Levinson names in the American context) ‘constitutional faith’5. Now, St. Granville renews it in an abundant measure.
The faith he proselytises is a secular one. Constitutionalism is for him
a civic religion; its fallible deities serve a higher purpose, despite themselves.
‘The citizens of India’, he writes, ‘have taken this Constitution as the text- the
scripture, even a new Dharmasastra – for public life’.6 The civic religion has a
mission, quintessentially Nehruvian at its core. In his first book, Austin symbolised the constitution as a charter of ‘social revolution,’ the ‘conscience of a
Nation,’ and as its ‘cornerstone.’ In this work, the Constitution emerges as the
‘touchstone’, a true ‘window into India’.7 The movement from ‘cornerstone’ to
‘touchstone’ imagery marks the passage between the foundational and the reiterative social action. Each ‘daily’ and ‘hourly’ ‘use’ of the constitution by ‘citizens in pursuit of their personal interests or in their desire to serve the public
good’8 reinforces it, even when the most wicked and vile political actors invoke
it. The Sacred Book may never be profaned. The ‘touchstone,’ the parasmani,
retains its spiritual power to transform the base metal into gold. The ‘touchstone’ forever provides the alchemy of constitutional truths, in which all political lies ultimately perish. This, indeed, is the essence of holiness of the Book.
A civic religion needs its secular Pantheon; even when Nehru, says St.
Granville somewhat reluctantly, may not be said to have ushered in a ‘golden
age’ for Indian constitutionalism. He explicitly states that ‘the Nehru years set
standards against which others would be measured – and many fall short’9.
Even secular religions need their iconography; post-Nehru constitutional
5
6
7
8
9
Stanford Levinson, Constitutional Faith (2nd Edn., 2011). (This is my favourite US Constitution bicentennial book). For Levinson, that faith is the set of beliefs in the
Constitution as a higher law by which all political action may be judged and adjudged. At
one end of the spectrum, the set of beliefs is robust (on the pale of the values enshrined in
the US Declaration of Independence); and at the other end (the plane of constitutional law),
it is creatively conflicted and contradictory; the American constitutional interpretation is thus
influenced by Catholic and Protestant approaches to the Bible and the world.
Austin, supra note 4, at 635.
177
development deforms and denatures this constitutional inheritance; St.
Granville bemoans the ancestor massacre though he wisely falls short of overtly
advocating ancestor worship. At the end of the day, however, the entire corpus
of Granville Austin tends to regenerate constitutional hagiography.
The most notable achievement of Red is that he succeeds admirably in placing constitutional theory and practice at the very centre of Indian
development. This achievement carries with it many messages for contemporary history writing and the practices of social and political theory in India,
where constitutional law developments make at best a fugitive appearance.
Austin also provides a role model for legal and constitutional historians; the
range of source materials consulted, digested, and evaluated by Austin is truly
astonishing.
III.
The self-styled ‘political history’ that Austin writes is a history of constitutional development and constitutional politics. Even so, as his second
book makes it explicit, he does not write a book about the constitution as a
site of state formative practices in India. Here he is discomfortingly candid:
‘The terms ‘the state’ and ‘elites’ do not appear in this book because I find
them more misleading than enlightening’.10 He acknowledges the frequent
use of the notion of ‘governance’ and his own preferred version is distinctly
republican: governance means, ‘what citizens do when governing themselves’.11
This wholesome clarity dissipates in the next sentence: ‘Governance is a process; government is an object.’ He is aware that ‘governance’ is a ‘fancy word
unpleasing to some ears’, but he does not explore the logics or the histories of
this displeasure.
In a republic, as Aristotle reminded a long time ago, citizenship stands
both for the ability to rule and a capacity to be ruled. The account Austin provides of putting the Indian Constitution to work exemplifies the reverse situation: citizens who govern have no inclination or taste for being ruled and those
that are ruled are afforded very little opportunity to govern. Governance in
India then signifies contingent histories of power, where a class of super-citizens
do things to themselves as well as to the ordinary constitutional citizens. Austin
here provides a rich narrative of such doings.
The ‘process’ that seems to absorb Austin is that of constitutional politics. He does not develop this integral notion. Constitutional politics emerges,
in his work, as a conflicted site where a broad range of political actors pursue their special interests by invoking the languages and rhetoric, the
10
11
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logics and paralogics, of constitutionalism; the symbolic capital (to evoke
Pierre Bourdieu’s fecund notion) of the constitutional ideals of human rights
and the rule of law. Assorted political actors deploy the languages of the constitution to serve strategic political interests, individually and through associations and shifting, unstable, coalitions of conflicting interests, manifesting at
one moment as political accommodation, and another as political confrontation, somehow held together by a thin allegiance to the basic constitutional
values.
The political history that the second book offers is the history of un
(often anti) constitutional people in power and things they do to and with the
logics and languages of Indian Constitution12. It is a history of constitutionally
insincere and insecure constitutional classes, at times ambushed by anti-systemic movements but still somehow in ‘control.’ The histories of constitutional
politics narrated by Austin do not belong to the craft, and the genre, of subaltern histories, those that entail struggles of the constitutional underclasses
to recover Indian constitutionalism from the political practices of predation.
One looks in vain, for example, for narratives of struggles that led to radical
redrawing of the federal map of India, the social histories of Dalit movements
or the genesis, growth, and endowment of the Sampurna Kranti (or Total
Revolution movement.)
Even so, it will be a mistake for the subaltern inclination to neglect the
Austinian narrative. The social pathology of power, the macro and micro fascism of the politics of political desires, the craving for ‘legitimacy’ (mission
impossible), and the vast internal bloodlettings within the ruling classes, are
here laid bare, in a great painstaking detail. The subaltern historian of the
Indian constitutional development finds in this work an embarrassment of
riches. The ‘seamless web’ metaphor dominates Austin’s writings; for a subaltern historian of Indian constitutionalism, this ‘web’ emerges as a bloodied and
bruised labyrinth for the masses of Indian impoverished citizens, the atisudras
as Babasaheb Ambedkar named the constitutional proletariat.
12
Austin, supra note 4, at 373. Of the Forty Second Amendment, Austin writes: “The shift
in the balance of power within the new Constitution made it all but unrecognisable”. The
struggle for making the unrecognisable, though the discipline of the basic structure, in turn
also makes the new (judicially enunciated) Constitution, which is similarly unrecognisable in terms of the original intent. So do the contemporary profiles of social action litigation, or progressive judicial activism. All this supports my view that India has had many
Constitutions: the Constitution of 1950, the State-finance capitalism of Ms Indira Gandhi,
her emergency constitutionalism, the Mandal/Masjid Constitution, constitutionalism of
the basic structure and only self-limited adjudicatory leadership or demosprudence, and the
contemporary economic global constitution, which divides itself into many phases — from
coalition to supermajority politics. All this, in addition, blows to the wind the favourite
notion of contemporary constitutionalism that draws distinction between changes in, and of,
constitutions.
179
Of course, contentment with archives of contingency (the ‘seamless web’)
remains one way of doing ‘history’. Austin’s narratives embody the virtues of
such an archival. However, the ‘causes’ he deals with are, in an Aristotelian
sense, the ‘immediate’, rather than ‘efficient’ causes; or put another way, we
know more about the dramatis personae, less about the script. Of what may a
script consist?
Let us stay with just one area: the notorious Shiv Kant (habeas corpus) decision during the Emergency. A historian will probably seek answers
to the questions that provide a structural rather than episodic narrative. On
this plane, the question would be: Did Justices Chandrachud and Bhagwati
‘betray’ or ‘affirm’ their legal liberalism (rule of law) lineage? In contrast, an
episodic narrative looks at judicial biography: Was their constitutional cowardice a result of inarticulate fear concerning the institutional future of the
Apex Court? Or was it a function of their judicial career ambitions? Was their
pusillanimity generated by veiled personal threats, those ‘Deep Throat’ kinds
of telephone calls suggesting expose for the violation of the Draconian Foreign
Exchange Act (most Justices have relatives abroad and remain exposed to
charges of technical violation)? Or were they even subject to more dire threats
of possible impeachment or detention?13 Or was it a distinctive product of lawyering, which stopped short of the argument that the security legislation (the
dreaded MISA) was unconstitutional because the proclamation of Emergency
was itself similarly tainted?
A structural understanding would suggest that while individual motivations were important, these do not amount to an explanation. The explanation
that eludes the episodic narrative is rather simple: as wielders of state adjudicatory power, summit courts remain prone to reinforce the centralized unity of
the state. The ‘structural logic’ of the Emergency was symbolised by the representation of danger to the life of the Indian State; times of ‘emergency’ were
held to exclude the times of human rights. I know of no summit court, which
13
Such intimidation was commonplace. As the Dean of Delhi Law School, I was subjected to
these frequently. I insisted that jail authorities allow detenue students access to reading materials and that they be allowed to sit for semester examinations. When some students were
brought manacled to the Law School, I insisted that these be removed. There were high profile students like Arun Jaitley, the President of Delhi University Student Union, now the
Union Minister of Finance, and there were scores of “lesser” students, some of whom wrote
post cards from jail thanking us (Professor Lotika Sarkar and myself) for helping them with
our cause of opposing the emergency! The Home Ministry sent to the then Vice-Chancellor,
Professor R.C. Mehrotra, a briefing listing my “leanings” towards the BJP opposition! The
threats of detention following in the wake of my polite refusal to contribute to a felicitation
volume to Indira Gandhi (on the theme of the “jurisprudence” of Twenty Point Program)
ceased mysteriously, after I wrote a protest letter to her.
I mention these personal details here to suggest the reality of structured coercion, which
would magnify a hundred times in case of a Supreme Court Justice exposed to more discreet
hints.
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has not traded off democratic rights of citizens in war or warlike situations.
The Emergency was a war against the Indian Constitution.
The Shivakant 14 decision, however, is not atypical. Its prototypical precursor is Gopalan15, which grants the Parliament the plenary power to enact
dragnet security legislations, even further protected for more than a quarter-century long judicial validation of the notorious Ninth Schedule of
the Constitution. Even after the Emergency, the Supreme Court sustained
the validity of the awesome Fifty Ninth Amendment that provided state
power impunity for extinguishing the right to life in Punjab, produced post
Emergency discourse sustaining the constitutional validity of the National
Security Act, and Justice Jeevan Reddy’s (in his second constitutional birthing
as the Chair of Indian Law Commission) open unconstitutional advocacy of
enacting a more permanent regime of state of emergency against Indian citizens by a recommendation that would make preventive detention an integral
aspect of the Indian Criminal Procedure Code!
I am not trained as a historian. However, as one, who has learnt
immeasurably from their craft, I remain inclined to the belief that historians
would have produced orders of explanation, not just catalogues of explanatory
variables. Even the tracing of critical constitutional events must entail some
explanation of the phenomenon of the convenient co-optation of eminent
Indian Justices by evil political regimes, unscrupulous governance intentionality’s, and genocidal administrative styles.
The much-vaunted judicial independence remains, after all, dependant
independence, a form of institutional constitutional politics, and politics of
judicial exigency or expediency. In sum, it is unsurprising, from the perspective of structural historical explanation, that eminent justices, on and off the
Bench, emerge as an aspect of (to evoke an Althusserian phrase) “repressive
state apparatus,” wielding the power of the State to serve regime specific clusters of political interests against the constitutional logic of human rights and
fundamental freedoms.
IV.
Granville Austin overall prefers a narrative path that normalises constitutional crises. We are thus told that “ugly as the Emergency was, New Delhi in
1976 was not Berlin under Hitler”16 and that “the Emergency had its limits,”
in ways that exemplified considerable “individual and political freedom existed
within it.” Austin is thus able to write that:
14
15
16
ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
181
“…ideological purity was not demanded; opponents were not shot.
And the Forty Second Amendment, with all the ills here described,
did not abolish the Supreme Court; left the judiciary with considerable power; did not end the elections and legislatures of representative
government; and did not abolish the Fundamental Rights..”17
All this could have happened and some of it was assiduously planned.
However, it did not come to pass. Undoubtedly, constitutional dictatorship was
not such that resulted in a total liquidation of the constitutional estate. Not
merely was ‘India’s flirtation with dictatorship mercifully brief’ but it had the
unintended consequence of the ‘saving of democracy’.18 It:
“taught Indians about the dangers to democracy that lurk everywhere:
of demagoguery, of leaders uncaring of liberty, of hero worship and
placing power in the hands of the few, of the dangers from citizen
abdication of responsibility. Like the ‘McCarthy period’ in the United
States, it taught that vigilance would be then price of it not happening
again.”19
What ‘historic’ sense are we to make of these observations? Do the world
historic measures authorising judgements concerning catastrophic practices of
the politics of cruelty exist? If desirable, how ought one to construct these? Or
may we regard each situation of ongoing, flagrant, and massive violations of
human rights and fundamental freedoms as ‘unique,’ thwarting comparative
studies? If comparative studies of such politics remain desirable or possible,
does it matter whether the ‘measure’ is derived from Euro American centric
perspectives? (The horrors of the Third Reich, or the McCarthy period analogy that Austin offers?) Or one should even here privilege frames of reference
distinctively South (Idi Amin, Papa ‘Doc,’ Yayah Khan, Pol Pot, Augusto
Pinochet)?
I do not know save to say that all comparative exercises need a number of reflexivities, based on the experience of the violated rather than on the
intentionality of the perpetrators. At any rate, the analogy Austin deploys
normalises human violation in the period of the Indian Emergency by comparison with the Third Reich; the McCarthy period analogy offers a more
contemporaneous alternative but hopefully an inaccurate one. The Indian constitutional experience was not of the Cold War American constitutional patriotism. The vaunted ‘vigilance’ of American citizens exemplified the ‘best’ and
the worst excesses of the Cold War warriorism, of little relevance to the Indian
experience.
17
18
19
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V.
Of abiding relevance are Red’s views on secularism. The ‘history’ that
interests Austin is the history of change within stability, or the ways of adjusting both ‘social revolution’ and ‘more effective democracy’ to the imperatives
of ‘national unity and integrity’.20 Austin’s depiction of the itinerary of meanings ascribed to ‘unity and integrity’ are fascinating, and the reduction of
threats to these by five ‘isms’ is compelling21. However, his notion of the sixth
‘ism’- secularism - is problematic indeed. It may be the case that secularism
was, in nationalist political rhetoric, touted as ‘antidote’ to these five sources of
threat. But this scarcely justifies the reduction of constitutional secularism as a
mere servitor to the ‘nation–building’ practices of power. In effect, this reductionism tends to empower the Hindutva critiques of Indian constitutionalism22
a consequence that I know would cause grave anxiety to Austin in the present constitutional conjuncture. Constitutional secularism, as judicially enunciated, is a very different phenomenon than its party-political constructions
may suggest from time to time. Constitutional secularism, in its affirmation
of the right to freedom of conscience and religion, and its regime of distinction between religious ‘belief’ and ‘practice’, that enables the State to regulate
the ‘secular’ aspects of religious traditions is an extraordinary juridical invention, which seeks to discipline runaway practices of political power that seek to
harness to partisan ends the historic gains of the processes of secularisation of
Indian society.23
Granville Austin traces the ‘cosmology’ of Indian constitutional development in a variety of strands of the so called ‘Hindu’ Indian belief systems.
First, there is the notion of constitutional beliefs pitted against the karmic
beliefs. Karma for St. Granville is thus deterministic, now rivalled by the
‘Constitution’s concept of individual freedoms.’ This ‘millennia old’ belief system is ‘waning slowly, more slowly among the poorest, who need karma’s solace’24, and that form of solace furnishes the moral roots of state paternalism,
often named as disposition towards a Mai-Baap Sarkar. Apart from this intuitive leap from a cosmic belief system to the daily, but eventful, experience of
governance, St. Granville spares himself of the burdens of empirical evidence.
20
21
22
23
24
Austin, supra note 4, at 555. (“For most persons … the gravest danger to unity and integrity came from four “isms: casteism, communalism, linguism, and provincialism/regionalism”,
manifesting varieties of ‘communalism’).
Upendra Baxi, The (Im)possibility of Constitutional Justice: Seismographic Notes Indian
Constitutionalism in Z. Hasan et. al (Eds.), supra note 2.
But see, the little noticed works such as Secularism in India [Iqbal Narain (Ed.), 1995]
which contains Justice Krishna Iyer’s inaugural address Manifesto of Man at 13-56 and my
keynote address Redefinition of Secularism in India: Some Preliminary Reflections at 57-82; The
Crisis of Secularism in India [Anuradha Dingwaney Needham & Rajeswari Sunder Rajan
(Eds.), 2007] which contains my article Siting Secularism in the Uniform Civil Code: A Riddle
Wrapped Inside an Enigma at 287-293.
183
A revelatory truth, of course, needs no such evidence. However it is hard to
believe that the poorest, the actually impoverished, in such dire need of karmic solace, should with such frequency so overwhelmingly cast their votes to
change their rulers, or participate so robustly in people’s movements for democratic rights and an ‘open society.’
Second, St. Granville would have us believe that India is a ‘survival society.’ Everyone needs to survive, ‘those at its top to those at the bottom of its
vast disparity.’25 In a sense, then, constitutional India represents a Hobbesian
State of Nature, in which the cannibalism of a people produces civic indifference (outside times of ‘difficulty and disaster’) to ‘the well-being of others and
to the condition of society as a whole.26 Those at the bottom include the poor
“quite literally … trying to have two chapattis where they have had one” and
those who ‘scramble for classification as an ‘Other Backward Class’ member
within the Mandal Commission criteria in order to receive special consideration in employment’.27 Whose, and what, constitutional interests or values are
harmed by the search for the second chapatti or a place in the state employment markets is not a question that engages St. Granville.
How does the ‘survival society’ affect those at the middle and the top
levels of Indian society? Middle classes well-disposed to ‘minor corruption’,
‘supine and sycophantic civil servants’, university teachers who ‘form their
own groups’ for maintaining their ‘superior’ power positions, and Professors
who ‘court politicians with the view of being appointed Vice Chancellors’28 as
well as dynastic political formations29 provide illustrations of ‘survival society.’
This also suggests that every exception to this ‘regime’ proves the rule! What is
more, St. Granville frowns upon every expression, individual or associational,
for desire for power. Power deforms and power corrupts the constitutional
‘spirit.’
‘Survival’ then is a moralising, even sermonising, notion. It is a figure,
which expresses the moral economy of the constitutional order, not its political
economy. St. Granville is not interested in the mundane and profane, but the
structural, both global and national reasons pushing India to ever new levels of
scarcity and survival. He is not interested in the economy of difference, in the
ways in which the impoverished and the affluent both seek to survive. Instead,
St. Granville expects all citizens to be equally constitutionally virtuous.
The keyword is ‘social revolution’ but it is forever postponed. However,
that keyword summates multitudinous constitutional sins of commission and
25
26
27
28
29
Austin,
Austin,
Austin,
Austin,
Austin,
supra
supra
supra
supra
supra
note
note
note
note
note
4,
4,
4,
4,
4,
at
at
at
at
at
640.
641.
641.
641-642.
643.
184
[Vol. 5 : Monsoon]
omission. Of these Austin is well aware. For these, St. Granville has little use.
For both, however, ‘social revolution’ remains the estate of the constitutional
elites. It does not occur to either that communities in struggle and people in
resistance may initiate ‘social revolution’ and begin to own (and reshape) the
constitutional vision. How does one explain otherwise the abundance, within
a so-called ‘survival society,’ of human rights and social movements in the half
century of the Indian constitution at work? How does one account for the
well-springs of moral altruism, as well as communitarian vitality, within the
framework of the gospel according to St. Granville?
Third, ‘rhetoric or empty-promise syndrome’ has ‘deep cultural sources’30
St. Granville would have us believe that
“Closely related to the word-equals-deeds syndrome is that of initiations equals completion: a programme is started, an institution is
established, but follow up is ignored ”31
St. Granville, in a few well-sculpted formulae and eminently quotable
words, dismisses the art and science of political or governance rhetoric. There
is not a tattle of evidence that something named as Indian ‘culture’ is responsible for this ‘empty–promise syndrome.’ I know of no extant democratic society,
which may not be fully described in these Austinian terms!
Does the Indian Constitution at work demonstrate the related syndrome:
‘initiation equals completion?’ Are ‘impractical’ goals set by political regimes
‘because they are consonant with the ideology fashionable in the West?’32 Here
again we find an aggravated form of mimesis; Indian constitutional elites even
when they think themselves to be responsive to the upsurge for social justice
stand represented as playing to the ‘Western’ galleries and lobbies. St. Granville
has no inclination at all, of course, to explore the ways in which the international financial institutions, through structural adjustment programmes, and
the heavily corporatized White House, dictate and subvert the ‘developmental’ priorities of the Indian constitution. The anti-people and human rights
unfriendly impact of the emergent global economic constitutionalism33 remains
irrelevant to the meditation of St. Granville.
Fourth, Austin reverts to his familiar explanatory figure: ‘accommodation’, invoked heavily in his first book. I had severely, and extensively, questioned this notion in my nearly 150 page monographic review.34 Austin finds
30
31
32
33
34
David Schneiderman, Resisting Economic Globalization: Critical Theory and
International Investment Law (2013).
Baxi, supra note 1, at 323-430.
185
the objections I raised concerning this notion altogether unworthy, even of a
brief mention. I respect his authorial privilege but continue to insist that the
notion is treacherous, concealing more than it reveals. He now adds to this
problematic notion even more aggravating theoretic, even theatrical, consequences. Now, in this work, political practice of ‘accommodation’ stands
endowed with mythic ‘cultural’ qualities: it has allowed ‘democracy and social
revolution to operate at one level while traditional norms operate at another’.35
The first level is ‘ideal’, the second is ‘real’. And it is the second that subverts
‘social revolution’ (though not the ‘open society’) by its ‘downward indifference of hierarchy, caste groups being uncaring about the well-being of those
below them…and the complex of ingredients composing the survival society.’36
Societal culture, rife with ‘complex of ingredients’ that constitute survival society, is then ‘harmful’ for ‘democracy’ and ‘social justice.’
Precisely what it is that Granville Austin wants us to think about is not
clear. Are we to think that the two levels are hermetically sealed disabling
renegotiation of ‘culture’ through the means of constitutional ‘politics’? Or are
we invited to think that ‘traditional norms’ are inherently and invariably subversive of democracy and justice? Or, that the fifty years of working of the
constitution has made little or no ‘impact’, on the bulk and generality of these
unjust norms? Or are we asked to consider that the ancient ‘caste’ culture has
somehow provided the stable ‘complex of ingredients’ for a ‘survival society,’ in
ways that render effete the constitutional assurances of rights and justice?
While no one can gainsay the fact that Indian constitutional politics
stands mediated by ‘culturally’ formed expectations that diverse constituencies entertain of politics, India is scarcely unique on this count among contemporary democracies. Further, there is ample evidence of reverse processes at
work. Moreover it is also extremely vexatious to be presented with something
named as the ‘culture,’ with invariant properties. Even at a superficial level,
one would have thought the constitutional politics, and jurisprudence of the
Mandal Commission, for once, brought down the Berlin Wall, of the ‘indifference of hierarchy’. One would have thought that contemporary constitutional
development, especially through forms of judicial activism, adjudicatory leadership, and demosprudence encased in social action litigation37, at least redefined
the constituents of a so-called ‘survival society’. Reading St. Granville offers an
altogether de-familiarising experience about the meanings of the word ‘culture’.
Perhaps, the deeper and more general point made by St. Granville is that
‘the’ ‘Indian’ ‘culture’ can grasp the meaning of social suffering only through
35
36
37
See more recently, Upendra Baxi, Demosprudence v. Jurisprudence: The Indian Judicial
Experience in the Context of Comparative Constitutional Studies, 14 Macquarie L.J. 3-23
(2014).
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the lens of hierarchy. Furthermore, practices of ‘accommodation’ reinforce, in
sum, an uncaring society. This is too vast a cultural generalisation to tackle
here. It is a notable fact that Indian society is callous to social suffering.
However, it is not clear that there are other human societies out there, which
are not similarly callous. Nor is it clear that forms of caste hierarchy even
when more abundantly vicious are less immutable than those of class, race,
and gender hierarchies, within and outside India. Perhaps, then, St. Granville
is drawing our attention to the notable failure of a ‘survival society’ in linking notions of justice with cultures of caring 38, the ways in which constitutional
culture, at the end of the day, stands cloned by the societal culture.
This last observation needs some elaboration. In what senses may one
speak of ‘constitutional culture(s)’ and in what ways may we say these stand
be related to societal culture(s)? India has developed an assortment of material
as well as non-material, dominant as well as subaltern, constitutional cultures.
A useful way of reading Austin would be to garner a sense of the variety of
constitutional cultures, emerging in this narration primarily as ‘institutional
cultures’ (whether of political parties, the executive or the judiciary.39) The
‘empty–promise’ or the ‘word–equals-deeds’ syndrome may be read as being
bereft of either logic. Neither justice nor care can then be said to characterise
dominant constitutional cultures. However, perhaps a deeper thematic arises
when the governing rhetoric of rights and justice stands altogether removed
from the obligation arising from the spheres of caring. Constitutional policy
makers present themselves as being just, even when not caring. For, caring at
least implies nurturance, even to the point of self-sacrifice. It is unsurprising
that St. Granville inveighs against forms and practices of Indian constitutionalism that so conspicuously lack the spirit of caring40.
38
39
40
Carol Gilligan has sought to educate us into thinking about the different logics of moral
development attached to notions of “justice” and “caring”. See her classic study In a Different
Voice: Psychological Theory and Women’s Development (1977). For the numerous problems associated with this distinction, see Virginia Held, Justice and Care: Essential Reading in
Feminist Ethics (1995).
One usually thinks of “justice” as being a prime value around which constitutional cultures
stand organised. Those visions that identify “development” with “justice” differ from those
that insist on the integrity of the “basic” rights that limit the power of constitutional classes
to negotiate “rights” as a strategy of “development”. Those oxymoronic visions that seek to
combine economic growth with social justice shape constitutional cultures somewhat differently. This is not a theme that I can develop here. Suffice it to say that in all these and other
related visions, the integral emphasis remain on the values of “justice”, not “caring”.
To take a few, and rather harsh, examples: Chacha (uncle) Nehru, as he liked to be called
(for he loved Indian children and so did they), exemplified love without caring. It surely lay
within his power to have ordered full implementation of the only time-bound provision of the
Indian Constitution: the provision of free and compulsory education of children below the
age of fourteen years. He did not. Indira Gandhi initiated the Garibi Hatao movement (with
her admirable planning measures); she had no time or inclination to assume responsibility for
any meaningful rehabilitation of bonded and forced agricultural labour or to generally move
towards the amelioration of un/disorganised labour. It took India forty odd years to establish her first National Commission on Unorganised Labour; very likely, it will take an equal
187
However, it is notorious that constitutional cultures remain rights
bound, not care bound. Adjudicatory cultures, even of judicial activism, furnish a rather brutal illustrative domain. I describe this as ‘brutal’ because
activist judicial stances evoke at least the rhetoric of constitutional care in a
larger measure than the practices of party politics and governance.41
I deploy here the notion of caring perhaps in ways not quite contemplated by the original authors of the discourse on caring. Yet, this transgression is, perhaps, not altogether unworthy. It remains important to ask why
out of the four cardinal preambulatory values (justice, liberty, equality, and
fraternity), the last, so manifestly related to notions about caring, has so little
informed Indian constitutional development. Why has ‘fraternity’ or sisterhood
been so systematically downplayed in the Indian constitutional theory and
practice? How is it that its only manifestations (Articles 17, 23 and 24 of the
Constitution) played such an inconspicuous role in the development of constitutional cultures of contemporary India? Fraternity, in its most minimal sense
of concern for the fellow - citizens, has scarcely informed the half-century old
dominant practices of Indian constitutional politics.42
41
42
number of decades to implement even one tenth of its sage recommendations. It is pointless
to multiply these poignant examples.
The Brother Venkatachaliah act of judicial nationalisation of Sheela Barse social action petition against the unconstitutional detention of juveniles in prisons still (after over a decade) leaves them where they are, even as His Lordship moves post-retirement to the Chair
of National Human Rights Commission, and now the ominous Constitution Review
Commission. Despite impressive judicial pronouncements on the rights of prisoners, and
inmates of other custodial institutions (like the Agra Home Women in State remand institutions or the inmates of psychiatric care institutional regimes), these hapless citizens have
yet to experience the threshold taste of the human rights-based amelioration. And, of course,
the 200,000 judicially revicitmised victims still survive as such, nearly sixteen years after the
judicially sanctioned “largest industrial peacetime disaster” (to invoke Judge Keenan) in the
contemporary world. See as to “care”, Upendra Baxi, Justice and Care, adapted and abridged
from the Rosalind Wilson Memorial Lecture delivered on 28-7-2009, 37(2) IIC Quarterly
118-132 (2010).
Judicial construction of the preambulatory value of fraternity is very infrequent, although
Part III gives very many rights to fellow-feeling (fraternity) as a basic human right of all
human citizens. Noteworthy remain (as mentioned in the text) Articles 17, 23 and 24; the
last two explicitly appear as “rights against exploitation”. Fraternity, thus conceived, is a paramount constitutional right, further elaborated by Part IV. Article 35 declares that conduct
declared by Part III as offences [and these extend to Articles 17 and 23(a)] shall be governed
by law made by Parliament notwithstanding the detailing of division of legislative powers;
this article supersedes the federal principle and detail. Moreover, ours is the first, if not perhaps the only, constitution that creates offences against the right to fraternity and fundamental rights.
Although it takes me far afield, I must here gratefully respond to the anonymous reviewers and the editor; they have drawn my attention to All India Scheduled Castes v. Western
Coalfields Ltd., [Writ Petition No. 2296 of 1998, per A.B. Chaudhari & P.R. Bora, JJ.]. The
Nagpur Bench of the Bombay High Court held that the provisions of Payment of Wages
Act ought to run subservient to the preambulatory value of fraternity and the Fundamental
Duties: the Court ruled that it was neither feasible nor desirable to consult all the employees
of Western Coalfields Ltd. Nothing should be “destructive” of the value of fraternity than
refusing or contesting payments to the Prime Minister’s Relief Fund. The Court ruled that
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I speak of the ‘dominant’ ways, and forms, of Indian constitutional politics. The constitutional politics of neo Mohandasians43 such as Acharya Vinoba
Bhave, Jay Prakash Narain, Siddharaj Dhahhda, Narendra Dev, Baba Amte,
Mother Teresa, for example, offer rich histories, in word and deed, of caring,
of the daring of constitutional karuna. The problem is not the intransigent one
concerning societal cultures. Rather, it concerns the poverty of social theory
imagination. Why are these grammars of care not an integral aspect of contemporary Indian ‘constitutional politics?’ Why should that notion be severely
impoverished as a narrative of what some citizens in power do to those subject
to their power?
To add yet another interrogation: Is the logic and the paralogic of institutional caring, then necessarily North-South different? Red’s account would
at least implicitly suggest so. Regardless of any polemical intent, I remain
wholly unpersuaded. Indeed, the study of conflict between the realms of justice and rights and those of caring remains, I believe, a priority task for comparative constitutional studies.
VI.
To ‘conclude’, Granville Austin is well worth the labour of several readings; even when St. Granville’s holy generalisations concerning ‘culture’ do not.
Yet, Austin puts to severe test, Professor Andre Beteille’s rather majestic enunciation: ‘A constitution may indicate the direction in which we are to move,
43
it is “the fundamental duty of every citizen and the employees of the WCL and the Trade
Unions to obey the constitutional mandate about “Brotherhood”. These Trade Unions are not
above the law or the Constitution. The Unions as well as the employees of the WCL must
understand that there is a responsibility on them to help the brothers and sisters in other
States, affected because of the floods, cyclone, tsunami and so on....”.
This is rather a facile interpretation; any judicial interpretation of a term in the Preamble
must distinguish analytically between a moral idea and a juristic one. When in either interpretation, disobedience to Fundamental Duties of all citizens is “destructive” of the desired
constitutional order is an empirical matter; it is any event doubtful that before the articulation of such duties there was any constitutional obligation to contribute to the Prime
Minister’s Relief Fund. It is doubtful that the moral or juristic concept of fraternity compels
only one mode of fulfilling the obligations thus cast on all citizens. It is well established further that the power to legislate is set out in Part XI, Chapter 1, of the Constitution of India.
Where the makers of the Constitution wanted Parliament to legislate and not the States, it
explicitly so provides.
As a moral concept, the relationship between the values of “fraternity” and “solidarity”
is very complicated; so it is even if we were to equate these two notions between these and
“social inclusion”. See as to this, Upendra Baxi, “Representation, Inclusion, and Governance:
A Constitutional Perspective”, Zakir Hussain Memorial Lecture, 21-1-2015 (mimeo).
This is not to say that the Court was wrong in its missionary moral zeal; but I do suggest
that careful analysis is needed at every step; the Court seems inexplicably extremely reluctant
to do so.
I do not say “neo-Gandhian” because the category “Gandhi” confuses and complicates the
contemporary Indian constitutional discourse! The singular Gandhi stands avenged by the
multiple ones, bearing his last name.
189
but the social structure will decide how far we are able to move and at what
pace.’44 This ‘prophecy’ is, at the end of the day, wholly social structure-centric, as if the constitution and laws remain somehow unrelated to, even outside
of, ‘social structure.’ Constitutional (re-)directions re-write old maps and cancel colonial signposts. Progressive constitutions help move the tectonic plates
of many an ancien regime. The bhadralok theorists of social development often
fail to experience the intensity and frequency of constitutional aftershocks; proactive constitutionalism may not always enact the ascendancy of ‘social structure.’ The agony and ecstasy of Indian constitutionalism at work, fortunately,
goes beyond the conventional Indian sociological theory, not always fully conversant with its dynamic hermeneutic, though contingent, practices.
Austin does not overtly contest Professor Beteille’s dictum. However, he
unmistakably shows that the constitution does not merely set the directions
for change but in fact directly impacts upon ‘social structure’.45 Indeed, Austin
insists that the ‘Constitution, for all its promise yet unfulfilled, has opened the
door to national rebirth’.46 And the
“oppressive effects of hierarchy are waning as the open society unwraps
national talents. Awareness of rights is becoming unquenchable….
Representative government and constitutional democracy are firmly
established… The open society is a grand achievement even when sullied by personal selfishness and police- and class- perpetrated brutality. India is among the handful of modern democracies that has not
descended into absolutism and risen again to freedom, having learnt
the lessons of vigilance.”47
All this is, partially, true. But that partial truth also contains a litany of
constitutional lies. Constitutional politics of India, far from constituting a ‘survival’ political economy, constitutes an economy of ‘excess’, a phrase regime,
which Georges Bataille inaugurally enunciates.48 Indian constitutional development is a register of excess because it seeks to manage ‘the ‘heterogeneous’ into
orders of an imperialist unity49. Increasingly also sovereignty expresses itself ‘in
44
45
46
47
48
49
Austin, supra note 4, at 666-67. Thus, the “initially disparaged citizens” (the educationally
and socially backward classes or the other backward classes) “have embraced the vote and
turned it to their own account”, using “the weapon of their oppression, their caste(s), as the
focus for mobilisation”. It is this “grain of sand” around which they seek to “build the pearls
of upward social and economic mobility and political influence”.
Austin, supra note 4, at 667-668.
Georges Bataille, Visions of Excess: Selected Writings 1927-1939 [Allan Stoekl (Ed.), 1985].
“The simple fact of rule by men over men implies the heterogeneity of the ruler, at least to
the extent that he is a ruler; to the extent that he appeals to his nature or personal qualities
for the legitimation of his authority, he characterises this nature as the totally other, without being able to give a rational account of it.” [Jürgen Habermas, The Philosophical
Discourse of Modernity 219 (Fredrick G. Lawrence trans., 1993)].
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acts of waste’.50 Extended to the context of the practices of Indian constitutional politics, this Bataillean insight signifies both the conspicuous consumption of the symbolic capital of the Constitution and the consciously planned
and systematically pursued policies that by denying modicum of rights, justice,
and care to most impoverished citizens extravagantly wastes their lives.
Contemporary globalising Indian constitutional politics is not an economy of a ‘survival society’. Rather, it is a history of excesses of the politics of
governance desires, shaping variegated tendencies and forms of constitutional
fascism, manifest in the cultic honouring of leaders as sacred personages, the
artfully staged mass rituals, the manifestly violent and hypnotic elements, the
breach of legality, the renunciation of even the appearance of democracy and
all egalitarian values51.
This description of constitutional elements at least constitutes the minima moralis of the subaltern perspective on Indian constitutionalism. It would
be unjust on my part to expect Granville Austin to agree. However, the future
of Indian constitutionalism lies on this contested terrain.
50
51
I know that many of my readers will say that all this is “jargonised”. I invite them to
study this observation in relation to assorted regional el supremo of their own choice.
Habermas, supra note 49, at 226.
Id.
Assessing the National Green
Tribunal after Four Years
—Armin Rosencranz* & Geetanjoy Sahu**
The National Green Tribunal, established in 2010, has in the short
term since its establishment strongly influenced environmental litigation in India. Unlike its predecessor the National Environment
Appellate Authority, its five benches have wide ranging powers to
adjudicate upon any dispute that involves questions of importance
to the environment. This power coupled with technical expertise has
exponentially strengthened the environmental protection regime in the
country. In a number of decisions, the Tribunal has proved its efficiency in resolving environmental disputes. In this article, the authors
survey some of the landmark decisions given by the various National
Green Tribunal benches in an effort to discern the trends in environmental jurisprudence in India.
I. I NTRODUCTION
The National Green Tribunal (hereinafter referred to as ‘NGT’), enacted
by Parliament in 20101, seems to have caught the attention of the Modi
government because of its unusual effectiveness. The current Environment
Ministry seems to want the NGT to make recommendations to the government instead of issuing directions like a judicial body. In its view, only the
amenable Supreme Court of India should have the right to reject clearances.
A year ago, the ministry asked the tribunal to limit its jurisdiction, but the
proposal was rejected. The move to amend the relevant legislation was initiated
by Environment Minister Javadekar himself. A cabinet note2 to water down the
powers and jurisdiction of the tribunal will be circulated for inter-ministerial
discussion soon, sources have said.
*
**
1
2
Co-author of Environmental Law and Policy in India (3rd. Edn., forthcoming), visited
W.B. National University of Juridical Sciences in September 2014. Former consulting professor and trustee, Stanford University. Founder, Pacific Environment.
Assistant Professor at the Tata Institute of Social Sciences. The authors would like to
acknowledge the research assistance of Anjali Kumar, Kruthika NS and Rishika Lekhadia.
Vide the National Green Tribunal Act, 2010 (Act 19 of 2010).
Prepared by the Ministry of Environment and Forests. The ministry has been now renamed
as the Ministry of Environment, Forests and Climate Change.
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[Vol. 5 : Monsoon]
Since its inception in 2010, the NGT, which is headed by a former
Supreme Court judge, has stayed approvals for several projects. In POSCO
case3, the NGT asked the Environment Ministry to review clearances after
some local villages refused to consent to the project under the pro-tribal Forest
Rights Act, 2006. Officials say the requirement of mandatory consent from
the gram sabha for initiating any project is the biggest hurdle in pushing infrastructure development in mineral rich, poor regions.
The NGT has repeatedly rejected the views of its nominal master, the
Ministry of Environment and Forests (hereinafter referred to as ‘MoEF’). It has
criticized the Ministry for poor decisions or actions and has been frequently
resorted to by civil society groups seeking and getting relief from environmentally irresponsible actions of the government.
Before the NGT was enacted, some environmental disputes were referred
for settlement to the woefully ineffective National Environment Appellate
Authority (hereinafter referred to as ‘NEAA’). This body was created by the
Parliament in 1997.4 The NEAA Act created a body that mainly dealt with
environmental clearances5, and was always under MoEF’s thumb. The
Parliament of India, recognizing the need for the speedy and expeditious disposal of environmental cases, especially in light of the burden of pending litigation6, established the NGT in 2010, which has superseded NEAA.
II. THE NGT ACT
The NGT was first established with the Principal Bench in Delhi, later
followed by four zonal benches in Chennai, Pune, Bhopal and Kolkata. The
preamble of the Act declared that the NGT had been set up to carry out, inter
alia, the constitutional obligations under Article 21.7 Unlike the NEAA, the
NGT was granted wide ranging powers allowing it to adjudicate cases of protection of the environment, natural resources and the legal rights of people
being affected under a number of existing laws such as the Water (Prevention
and Control of Pollution) Act, 1974, the Air (Prevention and Control of
Pollution) Act, 1981, the wide-ranging Environment Protection Act, 1986 and
the Biological Diversity Act, 2002.
The NGT was envisaged by its enactors as a specialized environmental body, consisting of judicial members as well as expert members, who
3
4
5
6
7
Prafulla Samantray v. Union of India, Appeal No. 8 of 2011 dated 30-3-2012.
National Environment Appellate Authority Act, 1997 (Act 22 of 1997).
Id.
Fifteenth Lok Sabha Debate, Lok Sabha Debates, (30-4-2010), <http://164.100.47.132/LssNew/
psearch/Result15.aspx?dbsl=2380>.
See The Preamble, the National Green Tribunal Act, 2010: “AND WHERAS in the judicial
pronouncement in India, the right to healthy environment has been construed as a part of the
right to life under Article 21 of the Constitution.”
ASSESSING THE NATIONAL GREEN TRIBUNAL AFTER FOUR YEARS
193
have the necessary proficiency to deal with issues of environmental importance. A retired Supreme Court judge was appointed to lead the NGT as the
Chairperson. The current chairperson, Justice Swatanter Kumar, took over
office from Justice Lokeshwar Singh Panta on December 20, 2012.8 In accordance with Section 7 of the Act, his term will end in December 2017.9 Thus, he
has three more years to continue on his present course of environmental management and improvement.
III. A N I NDEPENDENT STATUTORY PANEL
The NGT has been given enormous powers to deal with environmental litigation. The provisions of the Act stipulate that efforts to seek judicial
intervention for the protection and improvement of environment will not be
rejected on the grounds that the problems concerned involve complex, scientific and technical questions beyond the purview of the court. This gives cause
for hope to environmental advocates who are interested in filing Public Interest
Litigations (hereinafter referred to as ‘PILs’). Furthermore, the NGT, with
only two judicial members, is an independent statutory panel and consists of
eight experts from the fields of physics, chemistry, botany, zoology, engineering, environmental economics, social sciences and forestry who help and advise
judges on a regular basis. The inclusion of different experts to deal with different aspects of environmental problems will undoubtedly help the NGT to
look beyond the simple cost-benefit considerations of a particular project and
to serve the larger interests of environment and development.
The setting up of the NGT will help petitioners bring local environmental problems to the notice of the judiciary at little cost, while examining
the environmental impacts of government decisions. It has been empowered
to adjudicate disputes relating to environmental protection. It has the power
to declare illegal and invalid any administrative action that contravenes or
undermines environmental laws. The NGT is empowered to review orders
passed under all existing environment protection laws, including those involving water, air, forests and wildlife. No other court or authority can entertain
any claim or action that can be dealt with by the Tribunal. This should make
government departments cautious in clearing projects with potential environmental impacts.
IV. FOUR YEARS OF P ROTECTING E NVIRONMENT
AND THE R IGHTS OF M ARGINALIZED P EOPLE
An analysis of the NGT’s role over the last four years suggests that it
has been progressive in its approach towards environmental protection in
8
9
Vide Notification No. S.O. 2967(E), published in the Gazette of India on 20-12-2012.
The National Green Tribunal Act, 2010, supra note 1, at S. 7.
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general and the rights of marginalized people in particular. The NGT has
not only come down heavily against microstructures but has also challenged
the big corporate sectors and the central and state governments for not following environmental regulations. For example, in Jeet Singh Kanwar v. Union
of India10 case, the petitioners challenged the environmental clearance given to
the respondents’ proposal to install and operate a coal-fired power plant. The
petitioners argued that the mandate of the various guidelines in the Public
Consultation Process11 had not been complied with and had even been flouted
in granting the clearance. Neither the executive summary of the EIA report
in vernacular language nor the full EIA report had been made available, as
required, 30 days prior to the scheduled date of public hearing. The NGT
observed that according to the precautionary principle, the environment clearance should not have been granted by the MoEF.12 Moreover, it observed that
the economic benefits of the project would have to defer to the environment
if the project involved continuing and excessive degradation of the environment. The Tribunal further pointed out that the impugned order of the MoEF
granting environmental clearance to the power plant was illegal and liable to
be quashed.13
Similarly, in Adivasi Majdoor Kisan Ekta Sangthan v. Ministry of
Environment and Forests14, the petitioner challenged the environmental clearance granted by the Ministry of Environment and Forests to Gare—IV/6 Coal
Mining Project (4 MTPA) and Pithead Coal Washery (4 MTPA) of Jindal
Steel and Power Limited located in the Raigarh District of Chhattisgarh. The
petitioners argued that the environmental clearance had been granted to the
project without properly conducting a public hearing as stipulated by the EIA
Notification 2006.
The NGT observed while giving its order that this was not a case where
there had been a few insignificant procedural lapses in conducting the public
hearing.15 This was, rather, a mockery of a public hearing, one of the essential
parts in the process of deciding whether to grant an environmental clearance.
It was, in fact, a classic example of violation of the rules and the principles of
natural justice. Accordingly, the Tribunal considered it appropriate to declare
that the public hearing conducted in the case was invalid.16
10
11
12
13
14
15
16
Appeal No. 10 of 2011 (T) dated 16-4-2013.
Vide Environmental Impact Assessment (EIA) Notification dated 14-9-2006 issued by the
MoEF.
Id.
Id.
Appeal Number 3 of 2011 (T) (NEAA No. 26 of 2009) dated 20-4-2012.
Id.
Id.
V. STRENGTHENING
THE
195
NGT
Environmental activists hope that the National Green Tribunal will continue to address the unequal distribution of environmental goods and burdens
and protect the rights of underdogs as it has done so far. To ensure appropriate responses to environmental litigations, however, the Indian government
should lay down guidelines for the effective exercise of powers by the NGT.
The decisions of the Tribunal and expert groups should be respected and
implemented by all other government departments. If this happens, the NGT’s
role will benefit India’s long term environmental improvement. There should
also be stringent guidelines in place for the appointment of expert members to
the Tribunal based on the suggestions of different environmental groups, legal
experts, judges, and academics. The entire process should be transparent and
amenable to public scrutiny and review by judicial bodies and experts from
different backgrounds, including scientists, technicians, judges and NGOs.
In order to be able to entertain petitions and prevent frivolous environmental litigations, the National Green Tribunal should be equipped with all
the resources required for scrutinizing and reviewing petitions and investigating the intentions of petitioners who seek its attention. Its function should
be more transparent than the Supreme Court’s in environmental cases. More
importantly, the procedures of PIL should be institutionalized with guidelines
in place for emphasizing the conditions under which the tribunal can entertain
or reject a petition seeking its attention. Moreover, given the present composition of the NGT, it is very difficult on its part to monitor its directions in
each and every case. In order to implement NGT’s directions effectively, it is
necessary to make the implementation process more efficient through the marshalling of agencies responsible for the control of pollution, such as local government bodies and pollution control boards. It is also highly advisable to keep
the petitioner involved in the monitoring of court directions.
The legal framework also needs to be comprehensive and suitably
designed for objective interpretation of environmental laws and policies. There
is a plethora of legislations on environmental issues in India but many of them
date back to the pre-independence era and do not correspond to the policies or
realities of the post-independence period. As a result, they need to be reviewed
and consolidated. The Forest Law of 1927, and the Waste Claims Act, 1863,
in particular, need to be reviewed in order to bring them up to date with the
constitutional proclamations of environmental protection and the objectives
of the Forest Policy of 1988 and other policies of land use. Many areas of
environmental concern, including noise pollution and radioactive waste proliferation, are inadequately covered under existing legislations and need to be
addressed by updated legislation. Environmental impact assessment and industrial zoning must also be provided with adequate legal support.
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Adapting to emerging environmental problems and reflecting diverse
environmental values in the existing environmental laws, providing executive
bodies with the resources required for dealing with environmental problems,
and devolving powers to local institutions and communities wherever necessary will all ensure better management of natural resources in India. Clear
guidelines on some aspects of environmental laws and policies will also provide the National Green Tribunal with the independence and strength required
to deal effectively with environmental litigations. Unlike the Supreme Court,
which must engage constantly with the legislature and executive on a whole
range of pressing issues, the National Green Tribunal enjoys the quality time
needed for dealing only with environmental litigation in an effective manner.
Prior to 2010, the Supreme Court was overburdened with a proliferation of
environmental litigations, and its judges did not have the requisite expertise to
deal with them. Moreover, the scientific agencies it relied on for advice and
monitoring were often weak or inconsistent. The National Green Tribunal is
not burdened by the same problems. In fact, it now has the opportunities and
advantages required to further strengthen the foundations of Indian environmental jurisprudence laid down by the Supreme Court through its series of
innovative and landmark judgments.
The National Green Tribunal could play a particularly significant role
in the context of proposed reforms regarding the structure of environmental
governance and the emergence of active environmental groups in the country. However, the process of environmental jurisprudence, led initially by
the Supreme Court of India and post 2010 by the National Green Tribunal,
needs to be reformed in many ways. First, judges and young lawyers need to
be sensitized on different aspects of environmental problems and the ways in
which environmental values are framed and reframed in Indian society. Judges
cannot ignore public discourse on environmental issues but at the same time
they should not allow such discourse or media reports to outweigh their own
perceptions of the environmental evidence before them. They need to be well
read in the subject. The bar should be strong and effective as well. The quality
of judgments is highly dependent on the quality of arguments made by the
lawyers.
VI. I MPLEMENTING NGT DECISIONS
Further, the institutions involved in resolving environmental disputes, whether the Supreme Court or the National Green Tribunal, need to
be strong and effective in ensuring that their directions are implemented.
Implementation should not be done through monitoring committees. Many
judges believe that the Court should not seek to implement its directions
through the use of monitoring committees as this makes the Court an investigative rather than adjudicative agency. However, other judges believe that
leeway has been given time and again to polluters and implementing agencies
197
but they have only perpetuated illegal behavior, thus forcing the judiciary to
intervene aggressively. Most concur, however, that implementing agencies need
to be made stronger and more effective. Courts and the NGT should lay down
strict conditions for the implementation of environmental judgments, identify the executive agency responsible for carrying them out, and ensure the
accountability of the agency if it fails to follow directions. The Supreme Court
and the National Green Tribunal need to fix responsibility on these implementing agencies.
VII. VII. E NVIRONMENTAL CHECKS
AND
C LEAR ANCES
The Principal Bench of the NGT at New Delhi has given some powerful
judgments in the recent years which have strengthened the process of obtaining environmental clearances (hereinafter referred to as ‘EC’). For instance,
the case of M.P. Patil v. Union of India17 wherein the Tribunal examined the
details of the basis on which environmental clearance was obtained by the
National Thermal Power Corporation Ltd (hereinafter referred to as ‘NTPC’).
It was found that NTPC was guilty of misrepresenting facts to obtain the
EC. Additionally in this case the tribunal stressed on the importance of a
Rehabilitation and Resettlement Policy that adequately took into consideration
the needs of those affected by the project.18 In determining who would fall
within the ambit of such persons, the tribunal chose an expansive definition
instead of restricting it only to the land owners in the region. Finally, it was
reiterated that the burden of proving that the proposed project was in consonance with goals of sustainable development was on the party proposing the
project.19
Another landmark decision given by the Principal Bench in March 2013
related to the diversion of forests in the Tara, Parsa and PEKB coal blocks.
The Forest Advisory Committee (hereinafter referred to as ‘FAC’) had rejected
the proposal in its recommendations to the Central Government; however the
latter went against the recommendations and gave its approval. In the instant
matter, the tribunal scrutinized not only the validity of the Government’s
rejection but also the report submitted by the FAC.20
Section 2 of the Forest (Conservation) Act, 1980 (hereinafter referred to
as the ‘FC Act’) spells out the role of the Central Government in the matter of
granting prior approval to the State Governments’ proposals for use of forest
land for non-forest purposes. Section 3 of the FC Act further reveals that the
Forest Advisory Committee is the creation of the Central Government made
for seeking advice in the matters connected with the grant of approval under
17
18
19
20
Appeal Number 12 of 2012 dated 13-3-2014.
Id.
Id.
Sudiep Shrivastava v. State of Chhattisgarh, Appeal No. 73 of 2012 dated 24-3-2014.
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Section 2 of the FC Act and connected with forest conservation. The FAC
is expected to give an informed, non-arbitrary decision. While tendering the
advice, the Committee may also suggest any conditions or restrictions on the
use of any forest land for any non-forest purpose, which in its opinion, would
minimize adverse environmental impact.21 Examining the report of the FAC in
light of the Wednesbury principle of reasonableness, it was noted that instances
of human-wildlife conflict had not been examined by the FAC. Therefore it
was held that it had ignored a very relevant material which it should have
taken into consideration, and thus the report itself was arbitrary.22
In the same case, the Central Government’s authority to act against
the recommendations was also examined. Specifically the question that arose
was whether the advice rendered by FAC was to be followed by the Central
Government.23 The tribunal averred that ‘advice’, read in its ordinary and
grammatical sense, would not make it binding stricto sensu on the Central
Government.24 However, the Central Government remains under an obligation
to duly consider the advice of the FAC and pass a reasoned order either accepting with or without condition or rejecting the same based on facts, studies and
such other authoritative material, if necessary gathered from further enquiry.
The tribunal finally asked the Government to reconsider the entire matter
afresh in accordance with law.25
VIII. S OME K EY VERDICTS
The NGT’s Principal Bench recently gave its verdict in Braj Foundation
v. Govt. of U.P.26 The case was brought forth by the Braj Foundation, and
their contention was that the Government should be directed to execute the
Memorandum of Understanding (MoU) for the afforestation of Vrindavan forest land. The Tribunal gave the verdict against them, holding that the MoU is
not legally enforceable. Further, it was decided that the advertisement issued
by the Forest Department was only an ‘invitation to treat’ and could not be a
ground to enforce contractual obligations. Thus, the Government was allowed
to continue with its policy decision of taking up the afforestation work on its
own, especially since involvement of third parties would give rise to the possibility of illegal mining and encroachment. However, the Tribunal also went
a step forward and gave directions to the Government itself to ensure proper
afforestation. One of the most significant ones was the direction to declare at
least a 100 meter long stretch on both sides of the Braj Parikrama route as a
‘no development zone’.
21
22
23
24
25
26
Id.
Id.
Id.
Id.
Id.
Application No. 278 of 2013 and MA No. 110 of 2014 dated 5-8-2014.
199
In Vardhaman Kaushik v. Union of India27, the Court took cognizance
of the growing pollution levels in Delhi. It directed a Committee to prepare
an action plan and in the interim, directed that vehicles more than 15 years
old not be allowed to ply or be parked on the roads; that burning plastics and
other like materials be prohibited; that a web portal and a special task force
be created; that sufficient space for two way conveyance be left on all market-roads in Delhi; that cycle tracks be constructed; that overloaded trucks and
defunct buses not be allowed to ply; that air purifiers and automatic censors
be installed in appropriate locations.28 In further orders in the next hearing, it
directed that a fine of Rs. 1000 be levied on all cars parked on metalled roads
and that multi-level parking be construed in appropriate areas.29
Other recent decisions of the NGT have included T. Murugandam v.
Ministry of Environment & Forests30 wherein the importance of proper analysis
and collation of data and application of mind by the EAC was stressed upon.
Questions of the jurisdiction of the Tribunal have also been fairly recurrent. In
Kalpavriksh v. Union of India31 the Tribunal ruled that its jurisdiction extends
to all civil cases which raise the substantial question of environment and arise
from the implementation of the Acts stated in Schedule I of the NGT Act. For
this purpose the term ‘implementation’ must neither be too constrained nor
too expansive nor keep in view all the Notifications, Rules and Regulations
promulgated under the Act. Again in Tribunal at its Own Motion v. Ministry
of Environment & Forests32 it was held that wildlife is a part of environment
and any action that causes damage or is likely to cause damage to wildlife,
could not be excluded from the purview of the tribunal. The Tribunal has also
given detailed directions in decisions involving contamination and pollution of
river waters. For instance, in Krishan Kant Singh v. National Ganga River Basin
Authority33 the Tribunal gave a range of time bound and specific directions to
the polluting industrial units as well as the Municipal authorities who were
asked to allow the former to comply with directions. In another, Manoj Misra
v. Union of India34 the Tribunal gave a set of twenty eight directions, ranging
from prohibition on dumping debris to restricting silviculture and floriculture
activities, in the interest of protecting and restoring the River Yamuna.
IX. R EGIONAL BENCHES
OF THE
NGT
Regional NGT benches have also given judgments that might potentially prevent project proposers from by-passing environmental checks. One
27
28
29
30
31
32
33
34
Original Application No. 21 of 2014.
Vide order dated 26-11-2014.
Vide order dated 19-1-2015.
Appeal No. 50 of 2012.
Application No. 116 (THC) of 2013 dated 17-7-2014.
Original Application No. 16 of 2013 (CZ) dated 4-4-2014.
Application No. 299 of 2013 dated 31-5-2014.
Original Application No. 6 of 2012 and MAs Nos. 967 of 2013 & 275 of 2014 dated 13-1-2015.
200
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such case was Samata v. Union of India35 in which the Tribunal relaxed the
concept of locus standi to allow a wider base of people to approach it with
regard to environmental concerns. It was found that in the relevant provisions
the term ‘aggrieved persons’ would include not just any person who is likely
to be affected, but also an association of persons likely to be affected by such
an order and functioning in the field of environment.36 The other issue in this
case was whether the public hearing had been conducted if the Environmental
Impact Assessment (hereinafter referred to as ‘EIA’) report had not been published in the local language.37 The Tribunal found that there was no such
requirement imposed; however in the same breath it mandated the Expert
Appraisal Committee to act in light of the public’s larger interests and work to
balance developmental and environmental concerns.38
As in Samata39, the South Zone bench emphasized the importance of
the principles of precautionary principle and sustainable development in the
K.K Royson40 case. Again in this case we witness the relaxation of locus standi
requirements. The Bench held that where the matter concerned the ecology
and the environment, everybody was directly or indirectly affected and thus
the right to initiate action could not be limited only to persons who were actually aggrieved.41 Other issues that the Court examined in this case were that of
an unqualified agency giving approval and of the requirements of conducting
public hearing according to the EIA Notification, 2006.42
X. C ONCLUSION
The NGT is the most consistent and progressive environmental authority
in India. Unlike the Supreme Court, the NGT does not routinely favour infrastructure projects, nor does it cause a delay in resolving the cases before it. It
had redefined the role of environmental experts and the criteria to select such
experts. It has been largely successful in implementing its orders, which usually
relate to staying environmental clearances. The regional green tribunals seem
even more active and aggressive than the NCT in Delhi, as the regional judges
are fearless and have no ambition for national positions. Finally, the NGT
seems to have encouraged a number of lawyers all over India to specialize in
environmental law.
35
36
37
38
39
40
41
42
Appeal No. 9 of 2011, NEAA Appeal No. 10 of 2010 dated 13-12-2013.
Id.
Id.
Id.
Appeal No. 9 of 2011, NEAA Appeal No. 10 of 2010 dated 13-12-2013.
K.K. Royson v. Govt. of India, Appeals Nos. 172, 173, 174 of 2013 (SZ) and Appeals Nos. 1 and
19 of 2014 (SZ) and Appeal No. 172 of 2013 (SZ) dated 29-5-2014.
Id.
Id.
Bhopal Gas Tragedy:
Paternalism and Filicide
—Shruti Rajagopalan*
This article analyzes the failure of the Indian state in providing compensation to victims of the Bhopal Gas Leak. On it’s thirtieth anniversary, most of the known victims have not received their compensation
or adequate healthcare and have spent three decades dealing with
the state bureaucracy for their claims. This is a case where the state’s
paternalistic takeover of victims’ claims and compensation, through
the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985
(BGLDA), may have killed thousands because of bureaucratic delays
and errors. This article critiques the BGLDA from the economic point
of view.
The BGLDA gave the Central Government the exclusive right to represent and act in place of all the victims and claimants. The processing of claims of victims of the gas leak is fraught with Type I and
Type II errors. Funds were diverted to pay spurious claims (or Type
I error) and after thirty years genuine victims have still not received
compensation (Type II error). This paper argues that the adversarial
system of litigation, due to its competitive nature in the production of
evidence, minimizes both types of error. In addition, lawyers working
on contingency fees within an adversarial legal process have the appropriate incentives to minimize both types of errors. The welfare commissioners and the bureaucracy set up under the BGLDA did not have
the appropriate incentives to discover the knowledge generated in the
adversarial system.
The BGLDA, in replacing the adversarial system with the inquisitorial state bureaucracy, circumvented the discovery process, which led to
high error and delayed compensation.
*
Assistant Professor of Economics, Department of Economics, State University of New York,
Purchase College, E-mail: shruti.rajagopalan@purchase.edu. 10. I would like to thank the editors, an anonymous reviewer, Simon Bilo, Peter Boettke, Tyler Cowen, Mario Rizzo, and Alex
Tabarrok for comments and suggestions, and Nikita Kapoor for research assistance.
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“If seven maids with seven mops
Swept it for half a year.
“Do you suppose,” the Walrus said,
“That they could get it clear?”
“I doubt it,” said the Carpenter,
And shed a bitter tear”.
—The Walrus and the Carpenter1
I. I NTRODUCTION
This article analyzes the failure of the Indian state in providing the
promised compensation to victims of the Bhopal Gas Leak from the economic
point of view. Even after thirty years there is no accurate official count of victims. Most of the known victims have not received their compensation or adequate healthcare and have spent the greater part of the last thirty years dealing
with the state bureaucracy for their claims. This is a case where the state’s
paternalistic takeover of victims’ claims and compensation may have killed
thousands because of bureaucratic delays and error.
The Bhopal Gas Leak (hereinafter referred to as BGL) is one of the worst
industrial accidents in the last century and certainly India’s worst industrial
disaster. There is no question that the blame falls upon the management of
Union Carbide Corporation (UCC) and Union Carbide India Limited (UCIL)
due to their criminal and fraudulent behavior before, during and after the gas
leak.2 However, the victims in Bhopal were also failed by the Indian state on
many levels - the lack of regulatory oversight of the chemical plant prior to the
incident and the poor emergency services during and immediately after the gas
leak.3 This is especially true of the post-incident period; state failure to provide immediate medical care and rehabilitation4, under-assessment of liability5,
environmental rehabilitation6, psychological and long-term health7, mental well
1
2
3
4
5
6
7
Carroll Lewis, Through the Looking Glass and What Alice Found There (Clarkson
N. Potter 1973) (1872).
Usha Ramanathan, The Problem, Seminar: Elusive Justice - A Symposium On The
Bhopal Gas Disaster After Twenty Years (2009).
Ashraf W. Labib & Ramesh Champaneri, The Bhopal Gas Tragedy-Learning from Failures and
Evaluating Risk, 27(3) Maintenance & Asset Mgmt. 41-47 (2012).
Radhika Ramaseshan, Callousness Abounding, 20 Econ. & Pol. Wkly. 55, 57 (2009).
Satinath Sarangi, Compensation to Bhopal Gas Victims: Will Justice Ever Be Done?, 9(2) Indian
J. Med. Ethics 118-120 (2012).
A Tragedy Lingers, 44(49) Econ. & Pol. Wkly. 7 (2009); Betwa Sharma, Bhopal Gas Tragedy:
“New” Victims, 41(17) Econ. & Pol. Wkly. 1613, 1616 (2006).
Peter Foster, India Still Suffers 20 Years After Tragedy: Failure to Clean Up Pollution Keeps
Wounds Festering, The Telegraph, The Calgary Herald (Alberta) 962-965 (3-12-2004).
BHOPAL GAS TR AGEDY: PATERNALISM AND FILICIDE
203
being of the victims8 and the callousness of the state in compensating victims
after the incident.9
In thirty years, virtually every area of the BGL has been analyzed
but there is little analysis of the paternalistic takeover of the victims’ claims
through the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 [hereinafter referred to as BGLDA]. In the aftermath of the gas leak, the Indian
Parliament passed the BGLDA on March 29, 1985, because it wanted to
exclusively represent gas leak victims in American courts, in order to prevent
American lawyers (working on contingent fees arrangements) from exploiting
victims.
In much of the existing literature, either the BGLDA is mentioned but
not addressed or it is assumed to be a well-intentioned policy that failed due to
poor execution. The main and perhaps only critique has been with respect to
the challenge is of the constitutional validity of the BGLDA in the judiciary.10
Even its few critics argue that “the failings of the Bhopal Act do not point in
favor of a return to individualized justice. Serious as the problems were, it is
crucial to remember that the majority of the victims were poor and had no
other means of legal redress.”11 Overall, there is no analysis on the BGLDA
and the unintended consequences of state paternalism.12
This article critiques the BGLDA from the economic point of view.13
It analyzes the incentives created by the BGLDA for the various parties to
8
9
10
11
12
13
Amit Ranjan Basu & R. Srinvasan Murthy, Disaster and Mental Health: Revisiting Bhopal,
38(11) Econ. & Pol. Wkly. 1074, 1082 (2003).
Pushpa M. Bhargava, The Bhopal Gas Tragedy: A Middle Word, 20(22) Econ. & Pol. Wkly.
(1985). (Bhargava calls the failures a result of a culture of callousness).
In Charan Lal Sahu v. Union of India, (1988) 3 SCC 255, the petitioners challenged the constitutional validity of the said Act on the grounds that it violated the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution. There were four main arguments: (1)
Violation of the principles of natural justice: because Union of India was a joint tort-feasor as
it permitted establishment of such factories without necessary safeguards and therefore had
no locus standi to compromise on behalf of the victims. (2) The victims were not given the
opportunity of being heard, before the Act was passed. (3) That in the guise of giving aid, the
State could not destroy the rights inherent in its citizens, nor could it demand the citizens
to surrender their rights to the State. (4) That vesting of the rights in Central Government
unreasonable because the Central Government 22% share in UCIL and that would make the
Central Government a judge in its own cause.
Jamie Cassells, The Uncertain Promise: Lessons from Bhopal, 29(1) Osgood Hall L. J. 1, 15
(1991).
On two occasions I have critiqued this paternalistic legislation. Shruti Rajagopalan, An Indian
Tragedy Many Times Over, The Wall Street J., 13-6-2010; Shruti Rajagopalan, Are We Free
to Be Foolish?, Mint, 10-12-2007.
Economic analysis has been used to analyse non-market behavior in areas such as law and
politics. This method extends the self-interest individual assumptions from the market to
behaviour within legal and political institutions. To my knowledge, there has been no economic analysis of the BGLDA. However, given BGLDA’s validity, P.G. Babu has analysed
the bargaining model between UCC and Government of India, in light of asymmetric
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discover information and reduce error, and compares it to incentives in an
adversarial legal system. The failure to accurately assess compensation for the
victims of the gas leak was a result of state paternalism (through the BGLDA)
substituting an adversarial system of litigation with a bureaucracy. Through
economic analysis, it becomes clear that this was not merely a case of poor
execution of a good system, but that the incentives created by the BGLDA
for state actors were not conducive to enable discovery of relevant information on the victims and their injuries to determine liability and calculate
compensation.
The fundamental feature of BGLDA was that the Central Government
had the exclusive right to represent and act in place of all the claimants in
order to protect them from high legal fees and provide them a speedy, fair
and equitable judicial process.14 The BGLDA authorized the establishment of
a ‘Claims Scheme’15 and created the office of a Commissioner whose function
would be to administer the scheme - registering, recording, and processing
individual claims.16
The BGLDA had three immediate consequences. First, it eliminated
representation of victims by lawyers working on contingent-fees. Second, it
replaced the adversarial system of litigation with an inquisitorial system.17
Third, it placed a bureaucrat or the ‘Welfare Commissioner’ as the principle
searcher under the BGLDA.
There are some implications of all three consequences. The story of
Bhopal victims’ settlement and compensation is rife with two types of errors;
the first being those victims who should have got compensation but did not
and the second, being the spurious claims which should have been invalidated
but in fact received compensation.18 It was a colossal task to separate genuine
14
15
16
17
18
information. See P.G. Babu, Suit and Settlement under Asymmetric Information: The Case of
Bhopal Gas Disaster, in Economic Analysis Of Law In India: Theory And Applications
[P.G. Babu et al. (Eds.), 2010].
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, Section 3.
Id., at Section 9. In exercise of the power under Section 9, the Central Government framed
a Scheme known as the Bhopal Gas Leak Disaster (Registration and Processing of Claims)
Scheme, 1985.
Bhopal Gas Leak Disaster (Processing of Claims) Act, supra note 14, at Section 6.
It must be noted that the entire legal system was not replaced with an inquisitorial system. Instead, only the claims processing was turned into an inquisition led by the Welfare
Commissioner. This kind of inquisitorial claims processing was conducted within the shadow
of an adversarial system, which dealt with the constitutional issues, settlement with UCC
etc., but did not deal with claims processing.
Fali S. Nariman, Some Reflections, Seminar: Elusive Justice - A Symposium On The
Bhopal Gas Disaster After Twenty Years (2009).
205
from spurious claims. The adversarial system, due to its competitive nature in
the production of evidence, minimizes both Type I19 and Type II20 error.21
Second, I argue that “ambulance chasers” working on contingent fees
within an adversarial legal process have the appropriate incentives to minimize both Type I and Type II error. Third, the bureaucracy set up under the
BGLDA did not have the appropriate incentives to discover the knowledge that
is produced in the adversarial system
The BGLDA replaced this adversarial system with the inquisitorial state
bureaucracy and circumvented the discovery process, which led to high error
and low and delayed compensation.
Part II of this paper, provides the background for the BGLDA and the
circumstances under which the victims of Bhopal were denied representation
in the adversarial litigation process. Part III details the magnitude of error in
estimating the number of victims and the extent of their injuries and outlines
the consequences of the paternalistic BGLDA. Part IV discusses the incentives
created by (1) lawyers working on contingency fees, (2) incentives within an
adversarial legal system minimizing Type I and Type II errors and (3) search
costs in an adversarial system. Part V outlines the incentive and knowledge
problem of the paternalist in determining the relevant information for settling
the liability of UCIL and compensation of victims. Part VI provides concluding thoughts.
II. THE BHOPAL G AS L EAK A ND
ITS
A FTERMATH
On the night of December 2, 1984, Methyl Iso-cyanate (MIC) and
other highly toxic gases leaked from a plant set up by UCIL for the manufacture of pesticides in Bhopal. UCIL was a subsidiary of UCC.22 By the morning
of December 3, 1984, at least 2,660 deaths were attributable to the leak and at
least 200,000 people suffered permanent, temporary and mild injuries.23 In the
aftermath of the gas leak, the state response for emergency and medical needs
of victims was inadequate.
19
20
21
22
23
Type I error, also known as a “false positive” is the error of rejecting a null hypothesis when
it is actually true.
Type II error, also known as a “false negative” is the error of not rejecting a null hypothesis
when the alternative hypothesis is the true state of nature.
For Type I and Type II errors, see Section IV Part B of this article.
The plant was operated by Union Carbide India Ltd., owned 50.9% by Union Carbide, USA,
and 49.1% by Indian shareholders. At the time, the maximum investment permissible for a
foreign investor was 40 per cent. However, the Central Government waived this requirement
for UCCs technology and exports. See B.K. Khanna, All You Wanted To Know About
Disasters 156 (2005).
Hanqin Xue, Transboundary Damage in International Law 27 (2003).
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Soon after, an army of American lawyers invaded Bhopal, contracting with victims and family members to represent their case against UCC
in American courts. Bhopal experienced what Marc Galanter calls “the great
ambulance chase” as American lawyers sought to profit from representing the
victims of the gas leak.24 These lawyers worked for contingency fees – they
were typically paid one-third of the compensation they secure for the victims
in case of a win or settlement and were paid nothing if they failed to secure
compensation. American lawyers filed almost 150 claims in various United
States courts up to 50 billion dollars. On February 6, 1985, the Judicial Panel
on Multidistrict Litigation ruled to consolidate all of the federal court suits
filed against Union Carbide on behalf of the Bhopal victims in the Southern
District of New York, presided over at the time by Judge Keenan.25
This posed many problems for the Government of India. First, the
Government feared that American lawyers and ‘ambulance-chasers’ working on
contingency fees, sometimes as high as 50%, would exploit the victims of the
BGL. Second, there was the question of the venue and forum of the legal proceedings. The Government of India argued that the United States was the best
venue for legal proceedings and that hundreds of claims were being filed in
various American courts. However, there were fears that the government might
not have the locus standi to represent the Bhopal victims in American courts
unless a law was passed to enable it to sue on behalf of the victims.26 A third
problem for the government was that American lawyers, on behalf of the victims, would also sue the Government of India as a 22% shareholder in UCIL.
To overcome these problems, exercising its role as parens patriae 27, the
Government of India passed an ordinance on February 20, 1985, allowing it
to act as the sole legal representative of all Indian victims in matters related to
24
25
26
27
See Marc Galanter, The Transnational Traffic in Legal Remedies, in Learning from Disaster:
Risk Management After Bhopal 133-147 [Sheila Jasonoff (Ed.), 1994].
Tamar Lewin, The Big Lawsuits: Will They Be Tried in US?, The New York Times, 14-121984, at 10, <http://www.nytimes.com/1984/12/14/world/the-big-lawsuits-will-they-be-triedin-us.html>.
Union Carbide Corpn. Gas Plant Disaster, In re, (1986) 634 F Supp 842.
India has always been a nation State where paternalism is assumed to be one of the duties
of the State. In ancient times it was the dharma (or duty) of the Hindu king to make policies for the welfare of his subjects, as a parent would treat the child. Once under the rule
of the British, Indians were subjects of the Crown and the English doctrine of parens patriae
extended to them. Post-independence India was envisaged as a socialist welfare State; Part
IV of the Constitution of India includes various Directive Principles stated as guidelines for
the local governments, which are mainly paternalistic in nature. Under English Law, the
Crown as parens patriae is the constitutional protector of all property subject to charitable
trusts, such trusts being essentially a matter of public concern. According to the Indian concept, parens patriae recognises the sovereign as the protector of citizens as a parent protects
the child. In particular, State paternalism in India is visible in times of disaster such as famines, drought and natural calamities. For details on the use of parens patriae in the BGL,
see Lisa Moscati Hawkes, Parens Patriae and the Union Carbide Case: The Disaster at Bhopal
Continues, 21 Cornell Int’l L. J. 181 (1988).
207
their claims emerging from the BGL. On March 29, 1985, the BGLDA was
passed.
The BGLDA enabled the Union of India to become the sole plaintiff in
substitution of all of the victims.28 This power included (a) the institution or
withdrawal of any suit or proceeding; and (b) entering into a compromise.29
The tribunals for categorization, processing and adjudication of claims were
completely under the control of the Central Government, which had power to
frame a Scheme in relation to adjudication and compensation.30 Further, the
BGLDA and any related Scheme had overriding effect over every other statutory enactment.31 In terms of legislative power and authority, the BGLDA left
no stone unturned and hoped to deliver justice.
As the sole representation for all victims of BGL, the Government of
India turned down a $200 million settlement offer from UCC on April 6,
1985.32 Soon after, on April 8, 1985, the Government of India filed suit against
UCC in Federal District Court for the Southern District of New York representing the victims of the BGL.
On July 1, 1985, UCC motioned the court to dismiss the action from
America on grounds of forum non conveniens. The main question was the
appropriate venue for the legal proceedings between BGL victims and UCC.
In an ironic twist, experts on behalf of UCC praised the Indian judiciary and
the development of tort law in India, while the Government of India argued
the shortcomings of the Indian legal system in handling a case like the BGL.
An important aspect for determining forum was the ability of the Indian
legal system to handle class action suits. As an expert witness on behalf of
Government of India, Marc Galanter pointed out the lack of past precedent
in India as only 613 tort cases had been reported from 1914 to 1965. Also in
these cases, there had been no class action procedure in India, which would
make speedy litigation very difficult.33 On behalf of the UCC, Nani Palkhivala
argued “the Indian system is undoubtedly capable of evolving the law to cope
with advances in technology in the unfolding future. The Bhopal litigation
represents an opportunity for the further development of tort law in India;
that chance should not be denied to India merely because some might say that
28
29
30
31
32
33
Supra note 14, at Section 3(1).
Supra note 14, at Section 3(2).
Supra note 14, at Section 9. In exercise of the said power, the Central Government framed
a Scheme known as the Bhopal Gas Leak Disaster (Registration and Processing of Claims)
Scheme, 1985.
Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, Section 11.
UCC arrived at the $200 million because that was said to be the insurance coverage for
UCC. Government of India rejected it on grounds that it was insufficient.
The full text of the affidavit dated 5-12-1985 of Marc Galanter is reproduced in Upendra Baxi
& Thomas Paul, Mass Disasters and Multinational Liability: The Bhopal Case 161221 N.M. Tripathi (1986).
208
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the American legal system is ahead in development.”34 UCC directly pointed
to the BGLDA and argued that the Government of India could settle the matter at home, as it had the power to represent all victims, and avoid the complications of traditional class action suits.
Judge Keenan, on May 12, 1986 dismissed the class action on the
ground of forum non conveniens conditional upon UCC submitting to the
jurisdiction of Indian courts and agreeing to satisfy any judgment rendered by
an Indian court.35
Judge Keenan’s order had two consequences: the first was the legal consequence of the forum moving to India; and the second was that questions of
interim compensation and final compensation were left to be resolved by the
Government of India.
III. P ROCESSING
OF
C LAIMS: E RROR
AND
IGNOR ANCE
After the forum for litigation was transferred back to India the constitutionality or the prudence of the BGLDA was not questioned. There was
no detailed analysis of whether the Government of India was the best entity
to represent the victims once the venue was moved to Indian courts. Claims,
their categorization and associated compensation were to be decided by Deputy
Welfare Commissioners (Civil Judges on deputation to the Directorate of the
Welfare Commissioner) with one appeal to the Additional Commissioner.36 On
their part, the Additional Commissioner and the Welfare Commissioner could
suo motu revise any order of the Deputy Welfare Commissioner.37 The BGLDA
essentially substituted the adversarial process and turned it into an inquisitorial process, which was not legal but bureaucratic. Specifically, only the claims
processing was turned over to the bureaucracy. The larger battles of the constitutionality of BGLDA, the validity of interim relief, and the overall settlement,
were all negotiated in the adversarial legal system of India.
This bureaucratic procedure would take a long time to sort through
claims and compensation, at a time when victims were struggling to survive
34
35
36
37
The full text of the affidavit dated 18-12-1985 of N.A. Palkhivala is reproduced in, id, at 222,
227-228 (Upendra Baxi & Thomas Paul prepared, 1986).
Against the order dated 12-5-1986 of Judge Keenan, appeals were filed by the 145 individual
plaintiffs and the UCC. By order dated 4-1-1987, the Court of Appeals for the Second Circuit
disposed of the appeals by modifying the conditions subject to which the suit by Union of
India had been dismissed. Union of India’s further petition for a writ of certiorari against the
order of the Court of Appeals was declined by the US Supreme Court on 5-10-1987.
Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985. Para 11
of the Scheme relates to determination of quantum of compensation payable to claimants.
Clause (5) of Para 11 provides for appeal against an order passed by the Deputy Commissioner
to the Additional Commissioner.
id, at para 13.
209
and often did not receive basic medical care. First, the Government of India
filed a suit in the District Court of Bhopal against UCC. The District Judge
of Bhopal ordered Interim Relief of Rs. 350 Crores (3.5 billion) on December
17, 1987. On appeal to the High Court, Judge Deo ordered a modified Interim
Relief of Rs. 250 Crores (2.5 billion) on April 4, 1988. UCC and the Union
of India thereafter filed appeals in the Supreme Court, which were admitted and referred for hearing to a bench of five judges. During the pendency
of the appeals, UCC and the Union of India negotiated a settlement and on
February 14, 1989, the Supreme Court approved the settlement of $470 million or Rs 750 Crores (7.5 billion).38 This amount absolved UCC and UCIL of
all past, present and future liability making the Bhopal settlement unique. The
final settlement of $470 million was based on the assumption that there were
3,000 fatalities and 52,000 victims with different degrees of injuries.39
The details of this initial settlement are important for two reasons. First,
it was the baseline on which all the curative petitions followed. Second, it gives
us a sense of how badly the Government of India and the judiciary underestimated the damage caused by the BGL.
Within two years of the Supreme Court order finalizing the settlement,
in a review petition order on October 3, 1991 the Supreme Court acknowledged that there had been around 4,000 deaths and those injured far exceeding 50,000.40
After the settlement was finalized, a 5-judge constitutional bench of
Supreme Court heard petitions challenging the validity of the settlement. The
court held that if the settlement amount fell short, the Union of India was
bound to provide for the shortfall in compensation. By then, it was clear that
the state had grossly underestimated the number of victims and the Court did
not want this to affect the medical and legal compensation for victims of the
gas leak.41
Dr. D.K. Satpathy, the doctor who performed the highest number of
autopsies on Bhopal gas victims, signed 10,000 death certificates within a
38
39
40
41
Union Carbide Corpn. v. Union of India, (1989) 3 SCC 38.
The settlement was to be distributed in the following manner. 3000 fatal cases were to receive
Rs 300,000 each. 30,000 victims with permanent disabilities were awarded damages between
Rs 50,000 and Rs 200,000 each. 20,000 victims with temporary disabilities were awarded
damages between Rs 25,000 and Rs 100,000 each. 2,000 victims with utmost severe injuries
were awarded up to Rs 400,000 each. Rs 25 crore (250 million) was set aside for expert medical facilities and rehabilitation of victims. Rs 220 crore (2.2 billion) was set aside for minor
injuries and destruction of property. The total came to Rs 750 crore (7.5 billion).
Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584, 612, para 29.
Justice A.M. Ahmadi dissented questioning the principles on which Indian taxpayer should
be liable for damages in a case where Union of India was not held liable and the BGLDA and
the following settlement were held constitutionally valid. See Union Carbide Corpn. v. Union
of India, (1991) 4 SCC 584.
210
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fortnight of the gas leak. Some reports and citizen groups claim that his team
maintained meticulous records and ordered all bodies to be photographed and
tagged with a number to facilitate claims for compensation.42 None of this
entered the official search conducted by Welfare Commissioners, and were not
reflected in the reports submitted by the Attorney General to the Supreme
Court while signing the final settlement.
According to an independent study by Amnesty International, 7,000
to 10,000 people died within three days of the gas leak. This estimate is two
to three times that of most official sources. Further, Amnesty International
believes that at least 15,000 people have died between 1985 and 2003 because
of the gas leak. This takes the total death toll to well over 20,000 within the
first two decades after the gas leak.43
The government did not have an estimate of official claims filed until
much after the settlement was completed. The BGLDA brought into existence
the Scheme under which claims of compensation by the Bhopal gas victims
had to be registered and processed. The actual process of registration of claims
took place in two phases. In the first phase during 1985-89, about 640,000
individuals filed claims. Another notification invited claims not only from the
36 severely affected wards of Bhopal but also from 20 other wards.44 By 2003,
a total of 1,029,515 claims were filed.45
It is not just individuals and NGOs representing the Bhopal victims
who argue that the number of victims was incorrectly estimated. By 2003,
even official estimates were completely different from those in the settlement.
According to the Office of the Welfare Commissioner, the total number of
claims was 1,001,723 out of which 553,015 cases were collectively awarded
approximately Rs. 1,400 crores. The number of claims for deaths registered was
22,149 out of which the Office of the Welfare Commissioner awarded compensation payments to 15,180 claims.46
Despite the impressive figures in the settlement order, the tragedy of the
gas leak remains one of non-payment of compensation to victims and a gross
miscalculation of the number of deaths and injuries.
42
43
44
45
46
Shiba Prasad Sahu, A life-giver called Dr. Death, The Indian Express, 20-6-2010.
See Clouds of Injustice Bhopal Disaster 20 Years On, Amnesty Int’l Publications1, 10 (2004).
Notification GSR-548 dated 2-12-1996 issued by the Office of the Welfare Commissioner,
Ministry of Chemicals and Fertilizers, Government of India and published in the Gazette of
India dated 3-12-1996.
Affidavit dated July 2003 of Veena Gupta, Director, Department of Chemicals and
Petrochemicals, Government of India in WP (C) No. 167 of 2003 (later renumbered as IAs
Nos. 46-47 in CAs Nos. 3187-88 of 1988) in the Supreme Court of India, at 5.
For details on these figures see Abdul Jabbar Khan v. Welfare Commrs., SLP No. 12833 of 2010,
<http://www.scribd.com/doc/33141645/Bhopal-Gas-Slp-Final-2> (last visited 16-2-2015).
211
Finally, each claimant was underpaid on an overall suspicion of the
genuineness of the claim. As a result, in 2004 there was a balance of over
Rs.1,503 crores remaining to be disbursed, after nearly 570,000 claims had
been settled. By 2009, on average, 6,000 gas-affected patients visit hospitals in
Bhopal every day, about 2 million visits per year.47
The Government of India, after years of adjudicating and dealing with
claims reached the same conclusion. In a curative petition filed by Union of
India on December 2, 2010, Attorney General GE Vahanvati contended that
the figure of $470 Million was approved by the apex court on “incorrect and
wrong assumption of facts and data in the impugned judgments.”48
The government sought the enhancement of compensation from Rs. 750
crore to Rs. 7,700 crore (77 billion).49 To this end, the government’s argument is that the number of fatalities is over 5 times and the number of injuries is over 10 times the respective numbers assumed in the settlement. This
case was scheduled for August 5, 2014 before a constitution bench led by the
Chief Justice of India, but the matter was deleted on August 4, 2014. The
Government of India has undertaken no new legal action since August 2014.
One could cite half a dozen other estimates that environmental experts,
NGOs, organizations representing the victims, and the government agencies
have produced.50 While there is no single set of estimates of fatalities and injuries that everyone agrees with, almost every estimate, including estimates by
the state and central government, clarifies that the numbers based on the original settlement of $470 million were a gross underestimation.
Further, when the settlement was to be distributed among victims, there
was the colossal task of separating genuine from spurious claims. The settlement was based on 3,000 fatalities and 52,000 injuries.51 But by 2003, a total
of 1,029,515 claims were filed in all.52 Funds were diverted to pay spurious
claims (or Type I error) while genuine claims were not compensated (Type II
error).
47
48
49
50
51
52
Subodh Varma, Bhopal Gas Tragedy: Endless Nightmare, The Times of India, 3-12-2009.
Union of India v. Union Carbide Corpn., Civil Curative Petitions Nos. 345-347 of 2010 in RP
(C) Nos. 229 of 1989 & 623-24 of 1989.
On 26th Anniversary, Govt. Seeks 7,700 Cr for Bhopal Victims, The Indian Express, 3-12-2010.
For details of the chronology and different estimates of victims and damage see S.
Muralidhar, Unsettling Truths, Untold Tales The Bhopal Gas Disaster Victims ‘Twenty Years’ Of
Courtroom Struggles For Justice, IELRC Working Paper, (2004).
In Union Carbide Corpn. v. Union of India, (1989) 3 SCC 38, the Supreme Court finalised a
settlement between UCC and the Government of India for a final settlement of $470 million
dollars absolving UCC and UCIL of all past, present and future liability.
Supra note 46.
212
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It is clear from the consequences of the BGLDA that the knowledge of
the victims required to compensate them appropriately was unavailable to the
welfare commissioners and the government officials and judges involved in the
1989 settlement.
In the next section, I explain the process of discovery of knowledge
and error minimization in an adversarial legal system. It is the subversion of
this adversarial process that led to poor estimates and high error by bureaucrats in the Bhopal case. The process used by welfare commissioners under
BGLDA could not accurately discover knowledge of the state of victims and
the required extent of compensation.
IV. A DVERSARIAL L ITIGATION: E RROR
AND D ISCOVERY OF K NOWLEDGE
In the Indian legal system, disputes are resolved through the adversarial
process, where each party hires his own lawyer to discover facts and present
his parties’ view of the case, with respect to both the law and the facts. This
approach can be distinguished from the inquisitorial system (prevalent in continental Europe), where the judge conducts most fact-finding activity centrally.
After the gas leak, the BGLDA replaced the adversarial system with an
inquisition led by a bureaucrat - the welfare commissioner under the claims
scheme of BGLDA - a move that Upendra Baxi dubbed the nefarious “bureaucratization of justice.”53 The inquisition aimed to establish an accurate count of
victims and the extent of their injuries, in order to first determine the appropriate settlement amount with UCC, and then distribute the amount to the
rightful claimants.
In an adversarial system, much of this is done individually by parties,
and not by the bureaucrat or judge. In any adversarial system, the plaintiffs
must determine whether or not to file suit. Once the suit is filed, the plaintiff
and defendant must decide whether they want to settle out of court, or proceed with a trial. The plaintiff will sue only if the expected cost of the suit is
less than the expected benefit, which may include settling out of court or the
damages won from the trial.54
The adversarial process has been compared to the competitive process of
the marketplace while describing its tendency to be efficient. The reason is that
the parties in an adversarial system face the appropriate incentives. The victim
53
54
Upendra Baxi, Fourth Catastrophe, Frontline, (2010).
For a general economic analysis of parties in the legal system see Steven Shavell,
Foundations Of Economic Analysis Of Law (2004) and Richard A. Posner, Economic
Analysis Of Law (8th Edn., 2011).
213
of the unlawful conduct (through his lawyer), investigates the circumstances,
organizes the information obtained by the investigation, determines whether
he should use the legal system for appropriate allocation, feeds the information gathered in the appropriate form to the legal system, checks the accuracy
of the information provided by the defendant, attempts to change the rules
if necessary, and ensures the collection of the final judgment.55 In short, the
party internalizes the costs and benefits of each action.
Though the parties involved have the correct incentives within an adversarial system, often, there are concerns that it is not the parties but the lawyers
making important decisions. This leads to the next question – are the incentives of lawyers aligned with their clients? There are many different arrangements between lawyers and clients for different legal services, ranging from
hourly fees, fixed fees, contingent fees etc. In many legal systems outside India,
especially in the US, typically in tort cases, the lawyer-fee arrangement is on a
contingent fees basis, (also known as success fees), where lawyers receive a percentage of the damages awarded. In contingent fees arrangements, the incentives of the lawyers and plaintiffs are aligned. Both have an incentive to see
through the completion of each of these steps, to gain a favorable verdict.
Standard economic analysis of legal systems predicts that police, public
prosecutors and attorneys, and other bureaucrats operating the legal system,
“would be less highly motivated than a private plaintiff, since their economic
self interest would be affected only indirectly by the outcomes of particular
cases.”56 Compared to public officials, parties and their lawyers internalize both
the costs and benefits arising from a suit.
The adversarial system aligns incentives to discover the relevant knowledge, since such discovery can help each party win. As the BGL was a case
fraught with the problem of accurate information, this aspect of the adversarial system merits some analysis. In the Bhopal case, ex-ante the government wanted to minimize wasteful litigation and search costs and therefore
appointed welfare commissioners under BGLDA to conduct the appropriate
inquiries. The problem faced ex-post by the government was the high degree of
error in identifying the victims and their compensation.
The question is whether the adversarial system of litigation or the
bureaucratic methods employed by BGLDA would better facilitate the discovery process. This analysis has three parts; (1) the incentives of lawyers working
on contingency fees arrangements in an adversarial system; (2) error minimization in the adversarial system; (3) search costs in an adversarial system.
55
56
For details on incentives of parties in an adversarial system see Posner, id.; See also Todd
J. Zywicki, Spontaneous order and the Common Law: Gordon Tullock’s Critique, 135 Public
Choice 35 (2008).
Posner, id., at 708.
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A. The Benefits of Ambulance Chasers
Government of India, and many citizens, shared serious concerns over
the army of American lawyers contracting with BGL victims and filing almost
150 claims in various United States courts.57 The main concerns were that lawyers working for profit, through contingent fees arrangements would exploit
victims of the gas leak, a demographic that was relatively poor. Especially
given the asymmetric wealth between UCC and the victims and asymmetric
information between American lawyers and Indian victims.
However, every single aspect of American lawyers working on contingent
fees that worried the Government of India is solved by the very same contingent fees arrangement.
The budget for evidence gathering is endogenous to the case and is
established by the parties. In the adversarial system, lawyers for the parties
have strong incentives to pursue and uncover all evidence relevant to their
respective cases. Thus, if both parties are wealthy, ample resources will be
available for evidence gathering and production of arguments on each side of
the case. One argument against the adversarial system is that if one or both
sides lack resources, then it seems probable that the adversarial system will produce results inferior to the inquisitorial system. Where there is a lot of asymmetry in the budget constraints of the two parties, the wealthy party tends to
win because it invested more resources in the search. This was an important
consideration during the BGL, where UCC had tremendous legal and monetary resources at its disposal, while the victims of the gas leak were the poor
citizens of Bhopal.
While there is no simple way to avoid the problem of asymmetric
wealth between parties in an adversarial litigation, there are ways to reduce its
harmful effect on the outcome of the case. An important way is to align the
incentives of lawyers with their clients using success fees or contingency fees
arrangements.
In a world where the plaintiffs are resource-constrained and cannot easily
borrow money to finance a claim (even genuine claims that would win compensation), there may be too little litigation due to such resource constraints.
Lawyers, who understand the merits of a case, as well as the legal system, are
willing to take on the case based on a success or contingent fees arrangement.
Entrepreneurial lawyers pursuing such cases on behalf of poor plaintiffs are
often pejoratively called ambulance chasers. However, theoretical and empirical
57
Supra note 25. Tamar Lewin,The Big Lawsuits: Will They Be Tried in US?, The New York
Times, 10 (14-12-1984), <http://www.nytimes.com/1984/12/14/world/the-big-lawsuits-will-theybe-tried-in-us.html>.
215
research shows that contingent fees may be a mechanism for financing cases
when the plaintiff is liquidity constrained and capital markets are imperfect.58
Another problem between the victims of the BGL and American lawyers was asymmetric information. The victims of the BGL did not know much
about the tort law system, the chances of success and failure, or the magnitude of compensation, within India or outside in the US courts. Asymmetric
information between the lawyer and plaintiffs creates problems during the
litigation, especially in terms of determining the appropriate amount of effort
and time invested in the case. In the BGL matter, the Government of India
was worried about victims being exploited by lawyers, in anticipation of
compensation.
However legal and economic scholars provide theoretical and empirical
arguments to the contrary; that, in fact, contingent fee structures may be the
ideal response or solution to the problem of asymmetric information between
the plaintiff and his attorney.59
The contingent-fee contract represents an optimal contractual relationship between the client and his attorney. Since the attorney has a financial
stake in the case, he is inclined to drop suits with a low expected return and
devote resources to more meritorious claims. Therefore the contingent-fee system may reduce the proportion of frivolous lawsuits. This system solves the
problem of too few lawsuits when plaintiffs are poor and too many frivolous
lawsuits when plaintiffs don’t face such a resource constraint.60
Such a fees arrangement also reduces the problem of moral hazard. If the
client cannot observe his attorney’s effort, then regular fee arrangements like
hourly fees would lead to inefficient levels of litigation. In these circumstances,
linking lawyers’ fees to the outcome of the trial would encourage lawyers to
invest a more efficient level of effort.61 Further, contingence fees arrangement
allow the attorney and the client to share risk in an efficient way.62
58
59
60
61
62
See David S. Shrager, The Hammer for Public Interest, 71 American Bar Assn. J. (1985) and
Eric M. Rhein, Judicial Regulation of Contingent Fee Contract, 48 J. Air L. & Comm. 151
(1982).
James D. Dana & Kathryn E. Spier, Expertise and Contingent Fees: The Role of Asymmetric
Information in Attorney Compensation, 9 J. L., Econ. & Org. 349 (1993) and Suzanne
Scotchmer & Daniel L. Rubinfeld, Contingent Fees for Attorneys: An Economic Analysis, 24
Rand J. Econ. 343 (1990).
Id.
Murray L. Schwartz & Daniel J.B. Mitchell, An Economic Analysis of the Contingent Fee in
Personal Injury Litigation, 22 Stan. L. Rev. (1970) and Patricia M. Danzon, Contingent Fees
for Personal Injury Litigation, 14 Bell J. Econ. 213 (1983).
Posner, supra note 55, at 708.
216
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There were also concerns over filing frivolous claims attempting to gain
compensation without injury. However, empirical evidence shows that contingency fees arrangements in fact reduce the number of frivolous claims. 63
Because lawyers stand to gain no fees with such claims, while bearing the costs
of representing the claims, fewer such claims are represented.
It is ironic that that BGLDA was passed specifically to prevent lawyers
working on contingency fees to represent the victims of the BGL. In India,
where the victims suffered from asymmetric information, and wealth and
liquidity constraints, it is even more crucial to have a system where lawyers
can represent clients through a contingency-fees system.
In the discussion of BGLDA saving victims from ambulance chasing
lawyers it is also important to note the humane aspect to this choice. Severely
injured victims or who had lost their families, friends and homes, were asked
to go to a government run hospital, not for treatment, but to get their injury
claims attested by a state approved medical practitioner. Similarly, victims’
families had to go to the municipal corporation to get the death certificate for
the victims who died. They were required to collect the requisite paperwork
and file these documents in government bureaus; all this while they had lost
their health, and/or loved ones. In a world allowing ambulance chasers to work
on contingent fees, these lawyers seek out clients and convince the victims to
use their counsel, as opposed to injured and orphaned victims standing in long
lines waiting to seek counsel. Ambulance chasers, by their very label, stand
outside hospitals while victims get treated and complete the required procedures. In this case, such a service might have proved particularly useful.
Even in the absence of BGLDA, the rules of Bar Council of India do
not allow lawyers to charge contingent fees.64 This is an important reason why
tort law has had a stunted development in India. In a country where plaintiffs
face resource and liquidity constraints as well as asymmetric information, it is
essential for lawyers working on contingent fees to develop a well functioning
private law system.
B. Type I and Type II Error in Adversarial Litigation
Error costs are most relevant to this analysis of the BGL. It is well established now that the welfare commissioners and therefore the Government
of India grossly underestimated the extent of the damage by the BGL. As a
63
64
See Eric Helland & Alexander Tabarrok, Contingency fees, settlement delay, and low-quality litigation: Empirical evidence from two datasets, 9 J. L., Econ. & Org. 517 (2003).
Under the Rules formulated under Section 49(1)(c) of the Advocates Act, 1961, an advocate
shall not enter contingent fees arrangements with their client. Bar Council of India Rules
Part VI, Chapter II, Rule 20, states “An advocate shall not stipulate for a fee contingent on
the results of litigation or agree to share the proceeds thereof.”
217
result of this error, the Supreme Court of India approved a settlement between
Government of India and UCC in 1989 for $470 million - based on an estimate of 3,000 deaths and 52,000 injury victims. By 2003, the office of the
Welfare Commissioner announced that the total number of claims registered
were 1,001,723 of which death claims were 22,149. Even 20 years after the
BGL, it was unclear how many claims were spurious.65
This situation gives rise to the possibility of two types of errors that can
affect the accuracy of a given dispute-resolution system; Type I error or false
positives66, and Type II errors or false negatives.67 Total error cost is the sum of
all false positives and false negatives produced by the system. 68
Applied to adjudication, a false positive occurs when the Court/bureaucrat erroneously imposes liability; a false negative occurs when the Court/
bureaucrat erroneously fails to impose liability. In the BGL case, Type I errors
are imposing liability on UCC to pay spurious claims and Type II errors are
failing to make UCC liable by denying genuine claims. As discussed in the
previous section, the BGL settlement was rife with both Type I and Type II
errors.
The adversarial method of litigation is essentially a competitive model
of evidence production. The budget for evidence gathering is endogenous to
the case and is established by the parties. In adversarial litigation, lawyers for
both/all the parties have strong incentives to pursue and uncover all evidence
relevant to their respective cases. This results in more than one search. Where
lawyers work on a success-fee or contingent fees arrangement, they get paid
only if they win the case. Over the long run, trial lawyers’ compensation is
based largely on the basis of their success at trial, thus they have strong incentives to develop evidence favorable to their client and to find flaws in their
opponent’s case. The lawyers thus internalize the costs of their errors (and triumphs) through the impact on their market reputations.
Compare this to an inquisition, as under the BGLDA, where the welfare commissioner is the only principle searcher, and therefore conducts a
single search. This search is conducted without the aid of individual parties
65
66
67
68
Nariman, supra note 18.
Type I error, also known, as a “false positive” is the error of rejecting a null hypothesis when
it is actually true.
Type II error, also known, as a “false negative” is the error of not rejecting a null hypothesis
when the alternative hypothesis is the true state of nature.
It will be assumed for purposes of the analysis here that the costs of false positives and false
negatives are symmetrical. This is likely an accurate assumption for civil litigation. For criminal law enforcement, the costs of a false positive that results in wrongful imprisonment is
greater in magnitude than a false negative (erroneous acquittal), as reflected in the ancient
aphorism that “it is better that n guilty men go free than one innocent man be wrongly
convicted.”
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or lawyers, who have an incentive to minimize error. The advantage of the
adversarial system is not just that more extensive searches are conducted, but
whether such extensive searches in an adversarial system lend themselves to
error minimization.
Applied to error minimization, the defendant’s lawyers have a greater
incentive to discover faults in the evidence of the plaintiff’s lawyers to reduce
their liability, and in the process minimize Type I errors, or a false positive
which occur when liability is erroneously imposed by the Court/bureaucrat.
Similarly the lawyers of the plaintiff have a greater incentive to provide more
evidence of the harm, and in the process minimize Type II errors, or false negatives, which occur when the Court/bureaucrat erroneously fails to impose liability. Through this competitive system, both Type I and Type II errors are
minimized.
The competitive character of adversarial litigation gives the individuals
searching for evidence (essentially the lawyers) a greater incentive to search
hard for relevant information. Additionally, the adversarial system also gives a
greater incentive to lawyers on each side to find faults in the evidence of the
other side. Therefore, the incentives are much greater to find good evidence
under an adversarial litigation system than under a system where the search is
led by a single judge or bureaucrat.69
Inquisitorial judges/bureaucrats will tend to stop searching for evidence
once they believe that they have all of the information that they need to
decide the case. The adversarial system is particularly effective at uncovering
difficult to discover or private information, relative to the inquisitorial system.
Even experimental research suggests that lawyers in an adversarial system may
work harder and will produce more information than judges in an inquisitorial
system.70
In the case of the BGL settlement, the welfare commissioners did not
face incentives to minimize Type I and Type II error. The appointment, compensation, and promotions of the Welfare Commissioners were in no way
linked to the speedy or accurate settlement of claims. Therefore there was little incentive to carry out an extensive search, seek out the genuine claimants,
and minimize error. Many victims genuinely claiming harm by the BGL were
dismissed, while many spurious claims were given compensation. Often the
commissioners had no way of separating the genuine claims from the spurious
claims. As of 2004, approximately 12,000 claims were not decided, even 20
years after the BGL.
69
70
See Mathias Dewatripont & Jean Tirole, Advocates, 107 J. Pol. Econ. 1 (1999) and Posner,
supra note 55, at 823.
E. Allen Lind et al., Discovery and presentation of evidence in adversary and non-adversary proceedings, 71 Mich. L. Rev. 1129 (1973).
219
One method of disposing multiple claims quickly was the en masse dismissal of claims by the Deputy Welfare Commissioners for default where the
claimant did not appear at the date fixed for the case despite the lapse of over
fifteen years after it had been lodged. Therefore, all claims were treated as genuine or spurious en masse. Finally, each claimant was underpaid on an overall
suspicion of the genuineness of the claim. As a result, it was found in 2004
that there was a balance of over Rs.1,503 crores remaining to be disbursed,
after nearly 570,000 claims had been settled.
In another such approach adopted by the Welfare Commissioner, 8,752
cases of death claims were converted to injury cases. The strange phenomenon
of conversion of death claims into injury claims was a result of a general suspicion that a claim filed could be a fraudulent one; the Welfare Commissioner,
exercising suo moto powers, would take up any case in which an amount of
over Rs. 100,000 was awarded in a death claim, and proceed to re-determine
the compensation to be awarded. Where the death had occurred some years
after the date of the disaster, the Welfare Commission would, without any
basis, hold that the death was not as a result of the gas disaster and proceed
to halve the compensation awarded by treating the claim as one for injuries
suffered on account of the BGL. In one such case, the Supreme Court reversed
the order of the Welfare Commissioner and remitted the case for a fresh
determination.71 However, due to litigation fatigue, many such unjust orders
remained unchallenged. This explains the wholesale conversion of death claims
to injury claims.
If the government had allowed the adversarial system to operate in the
BGL, instead of passing the BGLDA, lawyers of the victims would have an
incentive to look for greater evidence of the harm caused to their client by
UCC, and therefore minimize Type II errors. On the other hand, the lawyers
of UCC would look for evidence to determine if claims are genuine or spurious, to ensure that liability is not erroneously imposed, and UCC does not
have to pay for spurious claims, and therefore minimize Type I errors.
1. Search Costs
A decision in favour of one party over another is based on evidence and
therefore each party has an incentive to undertake extensive search. Because
the incentives are so strongly in favor of searching under an adversarial system,
search costs are optimal for each private party, but may not be optimal socially.72 This is because there are two or more searches undertaken, often to search
71
72
Madhukar Rao v. Claims Commr., (1998) 8 SCC 544.
See Gordon Tullock, The case against the common law, in 9 The Selected Works Of
Gordon Tullock [Charles K. Rowley (Ed.), 2005] and Gordon Tullock, Optimal Procedure,
in id.
220
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the same information, therefore spending valuable resources, compared to the
judge or welfare commissioner who would choose to undertake a single search.
In a survey conducted of tort cases reported from 1975-84 Galanter
found that it took an average of 12 years and nine months from filing to reach
a decision.73 One way to interpret these findings is that the private parties in
an adversarial system will have a greater incentive to investigate and produce
information in a case than an inquisitorial system. In the inquisitorial system, judges, or, in the case of BGLDA, the welfare commissioners, essentially
have a monopoly on evidence production. They would therefore internalize the
administrative costs of searching for evidence.
At first glance, the search costs, suggest that the BGLDA was an excellent intervention, reducing wasteful searches. However, only a weak case can
be made in favour of the BGLDA replacing the adversarial system due to
search costs. First, in inquisitorial systems, the budget for evidence gathering is
set exogenously and somewhat arbitrarily by the taxpayers, in terms of money,
time, and support staff available for investigation. This divergence between private and social costs may lead judges in an inquisitorial system to exert suboptimal levels of effort.74 This became quite apparent in the BGL case. Despite
the BGLDA, the state capacity did not match the intention of the legislation.
Welfare Commissioners did not have the budget, manpower, or infrastructure,
to deal with the scale of the disaster and conduct thorough investigations to
disburse compensation.
Second, in case of the BGL, the prevailing legal rule was one of strict
liability or its Indian variant, Absolute Liability. This rule is essentially no fault
liability, and once it was established that UCC and UCIL were principally in
control of the hazardous gas, which leaked, they would be liable, even if one
could not establish fault or negligence. Strict liability minimizes search costs
for the particular evidence, which is required to establish fault or negligence.
For strict liability, judges only need to establish if the party controlled the substance in question. In 1987, the Supreme Court held that “where an enterprise
is engaged in a hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and such liability is not
subject to any of the exceptions which operate vis-à-vis the tortuous principle
of strict liability.”75 Therefore, the search required in the BGL was only to the
extent of the damage and victims affected.
73
74
75
Marc Galanter, The Transnational Traffic in Legal Remedies, in Learning from Disaster:
Risk Management After Bhopal 133, 145-146 [Sheila Jasonoff (Ed.), 1994].
Zywicki, supra note 56, at 45.
The rule of absolute liability was clarified in M.C. Mehta v. Union of India, (1987) 1 SCC 395
at 421. Following the English principle of strict liability, the Supreme Court interpreted the
rule more strictly in light of industrial accidents in India. In Rylands v. Fletcher, (1868) LR 3
221
The rule of Absolute Liability, specifically in the BGL case, impacts the
magnitude and the nature of the search undertaken by the legal system. In
the BGL case, since it is clear that UCC is liable (whether they were negligent or not), the search effort was only to find evidence to determine whether
the claims were genuine or spurious. As discussed in detail above, both, Type
I and Type II errors, are minimized under the adversarial system, and the
bureaucrat or judge leading a search do not face the appropriate incentives to
minimize such error.
Finally, bureaucrats in an inquisitorial system internalize the administrative costs of searching for greater accuracy, but can externalize error costs on
parties and society unless the judge suffers some independent private cost from
inaccuracy, such as reversal on appeal, and/or some sanction derived from such
error.
V. PATERNALISM
AND
K NOWLEDGE P ROBLEMS
The BGLDA is not just a case of well-intentioned paternalism gone
wrong in this once instance. There is a more deep-rooted problem of knowledge with respect to paternalist policies. Rizzo and Whitman argue that if
benevolent paternalists possess all the relevant information about individuals’
true preferences, biases, and the choice, then policymakers could potentially
implement paternalist policies that improve the welfare of individuals. But
lacking such information, there is no certainty that paternalism will make
their decisions better; under a wide range of circumstances, it may even make
them worse.76
Paternalism by social planners and bureaucrats has often been compared
to central planners of the economy, as they face similar knowledge problems.77
There are two parts to this argument. First, the paternalist, in this case the
Welfare Commissioner, does not have the requisite information required.
Second, paternalist does not have the appropriate incentive to gather the
information.
76
77
HL 330 HL(E) - if a person employs non-natural use of land, then he is strictly liable for the
damage caused by any escape of matter from that land. The law already provides exceptions
to this rule. The five exceptions to strict liability are - If the victim consented to the harmful
substance present or contributed to the escape of the substance on the land; if the injurer
employed non-natural use of land for the common benefit of the injurer and the victim and
the injurer was non-negligent; if the escape and damage is caused by the act of a third party;
if the escape is caused due to an act of God or by natural circumstances without human
interference where no foresight or prudence could avoid damage; the rule of strict liability
may be excluded by a statute or a statutory authority.
Mario J. Rizzo & Douglas G. Whitman, The Knowledge Problem of New Paternalism, 103
BYU L. Rev. 910 (2009).
Id.
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Hayek discusses the first problem of dispersed knowledge. Socialists in
the early twentieth century, argued that a central planner equipped with all
relevant knowledge of resource endowments, technologies, and preferences,
could design an efficient economic plan for society.78 Hayek argued that to
assume the central planner possesses all the relevant information about endowments, technologies, and preferences is to assume the problem away.79
This is eerily similar to the situation after the BGL. The Government of
India assumed that the state machinery is equipped with the relevant knowledge required to calculate the accurate count of victims and their injuries.
Therefore, the paternalist would simply distribute the compensation from the
settlement negotiated with UCC. However, this knowledge did not exist. It
had to be discovered through an adversarial litigation process where each party
has the appropriate incentives to search for information.
Hayek could have been discussing the BGL when he wrote, the critical
problem that any economic system must solve is to mobilize and use knowledge that “never exists in concentrated or integrated form, but solely as the
dispersed bits of incomplete and frequently contradictory knowledge which all
the separate individuals possess.”
He argues that the problem of economic calculation is faced by the
bureaucrat but not by the entrepreneur. He identifies the problem of economic
calculation that is faced by the bureaucrat but not by the entrepreneur.80 There
is no signal of profit and loss in the world of a bureaucrat, and his criterion
of success and failure is the ability to follow the rules and regulations that
have been set by his superiors. A bureaucrat’s reward is based on his ability to
follow arbitrary procedures and not profits and losses. On the other hand, an
entrepreneur is bound by profits and losses determined by the demand of consumers of his services.
This analogy can be applied in the current context where the welfare
commissioner faces incentives of the bureaucrat while the lawyers working on
contingent fees act like entrepreneurs. Lawyers, have an incentive to get the
maximum possible compensation for the maximum possible victims. Even if
we attribute benevolence and intelligence to the welfare commissioner, it is the
institutional mechanism that creates perverse incentives and causes the problem of calculation.
78
79
80
See Oskar Lange, On the Economic Theory of Socialism: Part One, 4 Rev. Econ. Stud. 53,
68–71 (1936) and Oskar Lange, On the Economic Theory of Socialism: Part Two, 4 Rev. Econ.
Stud. 123 (1937).
F.A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519, 521–22 (1945).
Ludwig Von Mises, Bureaucracy 20-57 (2007).
223
This was witnessed early on in the BGL litigation. Fali Nariman
recounts, as the lead counsel for UCC, various efforts made to proceed with
the trial following interim relief order in 1987. However, even an order for the
mutual discovery of documents was resisted by Union of India. In June 1988,
the Union of India stated to the Court that the ‘stage of mutual discovery has
not yet reached’ and therefore the trial could not begin.81 Unlike ambulance
chasers motivated by their profits, the Government of India had no incentive
to ensure a speedy trial.
Similarly, the Welfare Commissioner did not rely on the success of his
inquisition, or the accuracy of the claims disbursed, for his compensation, promotions, etc. Therefore, there is a higher likelihood of externalizing error costs.
For instance, in an affidavit filed in 1996, it was stated that 65% of the victims’ claims had either been rejected or treated as injury cases. Over 28% of
the death claims had been rejected and over 36% had been treated as injury
cases. The reasons for conversion of death claims into injury claims was attributed to ignorance of the commissioners; lack of proper documentation and
certificates of death among the affected population; absence of proper medical
guidelines; and the claimants’ inability to pay sufficient bribes.82
This is one such instance, but this trend is consistently witnessed in the
Bhopal victims’ claims for the last thirty years.
VI. C ONCLUSION
It is often quipped that the road to hell is paved with good intentions.
The victims of the BGL have been on that road to hell paved by the BGLDA
for thirty years. The institutional failure that followed rivals the actual gas leak
in 1984. The paternalistic takeover of victims’ claims and compensation may
have killed thousands because of bureaucratic delays and errors. While this
cannot be undone, there are some broader lessons to draw from the BGL and
the legal disaster.
The lesson from the failure of BGLDA is simple – incentives matter!
The first step in legal reform should be to amend Bar Council Rules to
allow lawyers to receive contingency fees for cases. Contingency fee arrangements align the incentives of the lawyers with their clients, an indispensible
tool in the legal system. Tort law cases, especially where plaintiffs are resource
constrained, would have an opportunity to develop, by legitimizing contingency fees.
81
82
Fali S. Nariman, Before Memory Fades: An Autobiography 212-13 (2010).
Affidavit dated Nil 1996 of Deenadayalan in IAs Nos. 28-29 in CAs Nos. 3187-88 of 1988.
Also discussed in Muralidhar, supra note 51, at 17.
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Second, it is important to understand processes that lead to discovery of knowledge. These processes are not easily substitutable and depend on
the incentives, knowledge, and local context of the individuals in the system.
Paternalism implies substituting these with state bureaucrats, which may not
replicate the information and knowledge generating processes. The BGL is
an important lesson that not just markets are distorted by government regulation and paternalism. There are different types of private ordering, outside
of the market that are distorted and disrupted by paternalism. Substituting a
branch of government, like the judiciary, which relies on a competitive process
of adjudicating evidence between individuals, with a bureaucracy, is one such
case.
Third, the assumption of the BGLDA was that that there may be failures in private ordering, requiring the government to take over the problem.
This assumption holds only if there is no possibility of government failure.
However, the BGL is a case of government failure on almost all counts, especially in compensating victims. Almost all paternalists ignore the possibility of
government failure and focus only on imperfect private outcomes. The BGL is
an important lesson to also understand government failure arguments.
Finally, without paternalism, there can be no filicide.
Contradictory Tendencies:
The Supreme Court’s NALSA
Judgment on Transgender
Recognition and Rights
Aniruddha Dutta*
The article analyzes the 2014 Supreme Court judgment (National
Legal Services Authority v. Union of India1) that affirms the constitutional rights of transgender persons and promises legal identity
recognition and reservations for transgender people and communities.
The article argues that the judgment oscillates between broad and narrow interpretations of the ‘transgender’ category, and between gender
self-determination (understanding gender identity as determined by
oneself) and biological essentialism (seeing ‘biological’ or physical characteristics as the basis for gender identification). Such contrary tendencies suggests that the actual interpretations and implementation of
the judgment will be uneven and varied, potentially excluding diverse
gender variant people and restricting its promised gains such as legal
identity recognition and affirmative action.
The year 2014 has been significant in terms of the legal recognition of
transgender persons as subjects of citizenship and rights. First, in January, the
Ministry of Social Justice and Empowerment (MSJE) brought out a report on
‘issues relating to transgender persons’ drafted by an ‘expert committee’ that it
had constituted after consultations with representatives from the transgender
community in 2013.2 Second, in April, the Supreme Court delivered a judgment following a writ petition filed by NALSA (the National Legal Services
Authority) and supported by prominent transgender activists like Lakshmi
Narayan Tripathi. The NALSA judgment, which gained rapid media coverage and activist attention, included directives for the legal recognition of
*
1
2
Assistant Professor in the Departments of Gender, Women’s and Sexuality Studies and Asian
and Slavic Languages and Literatures at the University of Iowa. The author would like to
thank the peer reviewer and the editors of this journal.
(2014) 5 SCC 438.
Ministry of Social Justice and Empowerment, Report of the Expert Committee on the Issues
relating to Transgender Persons, 27-1-2014, <http://socialjustice.nic.in/transgenderpersons.php>
(hereinafter MSJE).
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transgender persons’ identities and the provision of reservations in jobs and
education.3 Then, in September 2014, MSJE followed up with an “Application
of clarification/modification” to the Supreme Court, which sought to clarify
the implications of the judgment vis-à-vis the recommendations of the aforementioned expert committee report.4
These developments mark the increasing visibility and influence of transgender activism in India, particularly the prominent role of hijra and other
trans feminine communities in LGBT and HIV-AIDS related activism over
the last decade or so. From the late 2000s onward, influential national and
transnational bodies like the National AIDS Control Organization (NACO)
and the United Nations Development Programme (UNDP) have responded to
demands from transgender-identified and hijra activists by organizing meetings
and formulating policies on transgender issues.5 In many ways, the latest set of
interventions from the MSJE and the Supreme Court follow from these initiatives. This essay proceeds on the assumption that the Supreme Court judgment
has to be understood in this wider intertextual context, i.e. with reference to
other related texts, particularly the MSJE report that immediately preceded
the judgment and the subsequent MSJE application for clarifications to the
NALSA judgment. Indeed, there are a few significant common threads running through these documents. Like previous policy documents on transgender
issues brought out by UNDP or NACO, these documents attempt to delineate the contours of the term ‘transgender’, and to clarify who is (or is not)
transgender. In addition, they also deal with the legal identity of transgender
persons and how to implement the recognition of such a legal identity. These
questions are fundamental to their vision of how empowerment of transgender
persons must take place.
As I will argue later in this essay, the NALSA judgment, like several
preceding policy documents, oscillates between a broad definition of ‘transgender’ as an ‘umbrella term’ for a variety of gender non-conforming identities
and practices, and a more restricted definition based largely on hijra and trans
women identities.6 As activists and community members from trans masculine
communities have argued, trans men and trans masculine identities have been
3
4
5
6
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
MSJE, supra note 2, Application of Clarification/Modification of Judgment.
For example, see United Nations Development Programme, Missing pieces: HIV related needs
of sexual minorities in India, (24-10-2008), <http://www.undp.org.in/reports_publications>
(hereinafter UNDP); Solidarity and Action Against the HIV Infection in India, Report of the
regional TG/Hijra consultation in eastern India, (2009), <http://www.saathii.org/orissapages/
tg_hijra_issues_consultation%20.html> (hereinafter SAATHII).
This argument draws from a previous analysis of discourses on transgender identities in India
by transgender activist Raina Roy and the present author [Aniruddha Dutta & Raina Roy,
Decolonizing Transgender in India: Some Reflections, 1(3) Transgender Studies Quarterly
2014].
CONTR ADICTORY TENDENCIES
227
insufficiently represented the judgment as well as the preceding MSJE report.7
Further, the NALSA judgment, like the preceding MSJE report, demonstrates
contrary tendencies between an attempt to grant self-determination of gender identity (i.e.the ability to elect one’s legal gender identity without having to meet external criteria such as surgery or hormonal transition), and the
bureaucratic adjudication and imposition of gender identities. In a critical commentary on the judgment, Gee Imaan Semmalar points out how some parts
of the judgment blend all hijra and transgender people into a ‘third gender’;
in other parts, the judgment seems to restrict who can identify as ‘male’ or
‘female’ based on external criteria like surgery or psychological tests.8 The latter
tendency draws from and feeds into biological essentialism, that is, the reliance on biological or physical attributes (such as genitalia or hormones) that
are positioned as ‘essences’ of gender and used to verify or certify someone’s
gender identity. As we shall see, the questions about defining and delimiting
‘transgender’ become particularly complex and fraught when connected to the
state-sanctioned allocation of resources to ‘transgender’ people through provisions like reservations.
Perhaps it would be useful to note that at the outset that the text of the
NALSA judgment is not a seamless document. At a hundred and thirty pages,
the text is written by two judges, Justice K.S. Radhakrishnan and Justice A.K.
Sikri, and split into three distinct sections, which are in turn divided into
further numbered paragraphs. First comes Justice Radhakrishnan’s statement,
then Justice Sikri’s statement, and in the end are directives written and signed
by both of them together. There are contradictions between these sections, and
sometimes even within these sections, which are symptomatic of the aforementioned tension between broad and restrictive definitions of ‘transgender’, and
between gender self-determinism and biological essentialism. As we shall see,
on the whole, Justice Radhakrishnan’s section seems to favor a somewhat more
open-ended interpretation of ‘transgender’, and be more accepting regarding
gender self-determination, whereas Justice Sikri’s section tends to favor a more
restrictive definition of ‘transgender’ based on essentialist criteria. These contradictions have created problems of interpretation regarding the implications of
the judgment.
I. DEFINING ‘TR ANSGENDER’
The ‘transgender’ category evolved in the activism of the United States
and western Europe as an ‘umbrella term’ to encompass a spectrum of people who transgress gender norms, widening the scope of the older and more
7
8
Gee Imaan Semmalar, Gender Outlawed: The Supreme Court Judgment on Third Gender and its
Implications, Roundtable India, 19-4-2014, available at <http://roundtableindia.co.in/index.
php?option=com_content&view=articl...t-judgment-on-third-gender-and-its-implications&catid=120&Itemid=133> (hereinafter Semmalar).
Semmalar, Id.; Dutta & Roy, supra note 6.
228
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medicalized term ‘transsexual’, which specifically connoted those who sought
physical transformation through surgical procedures to affirm their gender
identity.9 The coinage and popularization of ‘transgender’ in the 1990s grew
partly from the recognition that there are numerous forms of gender variance,
and many people may not want surgical intervention or follow linear ‘male’-to‘female’ or ‘female’-to-‘male’ trajectories of transition. In India, during the first
regional consultation on transgender and Hijra issues supported by UNDP in
2009, ‘transgender’ was also defined as an ‘umbrella’ term as per both western precedent, and also the distinctive Indian and South Asian reality of many
communities and identities of people who are marginalized for their gender
expression and/or identity, including but not limited to the well-known hijra
community (a socio-religious group of feminine-identified people assigned male
or intersex at birth).10 Indeed, some of these pre-existing terms are umbrella
categories in themselves: for instance, within working class/caste gender variant communities, the term kothi connotes a spectrum of feminine-identified
people assigned male at birth, with various sub-types depending on inter alia
attire, sexual behavior, and there are several sub-types within the hijra category as well, based on physical state of transition. However, since the late
2000s, ‘transgender’ gradually became established as a more recognized term
in state policy compared to non-Anglophone terms for gender variant people,
marking the gradual ongoing constitution of a national and transnational discourse of gender and sexual identities as opposed to terms and practices that
become positioned as regional/vernacular. As I have argued elsewhere, the
establishment of ‘transgender’ as a trans/national umbrella term seeks to consolidate gender non-conforming people as stable and bounded ‘identities’ and
‘populations’ through their interpellation within mechanisms of state and legal
recognition, and constitutes them as biopolitical subjects for care and management by the state. 11 This process may pave the way for specific provisions and
affirmative action for gender variant people, but may also override discourses
of gender/sexual variance that are not entirely legible to the state, and further
position them as merely ‘regional’ or ‘vernacular’ even if they actually span
multiple regions within South Asia.
This preceding discursive constitution of ‘transgender’ as a nationally
recognized ’umbrella term’ that subsumes more ‘regional’ terms and identities
sets the stage for the NALSA petition and the resultant judgment. “Seldom,
our society realizes or cares to realize the trauma, agony and pain which the
members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose
mind and body disown their biological sex”: thus begins the text of Justice
Radhakrishnan’s section (p. 1). But who are the aforementioned “members of
the transgender community”? On Page 10, the judgment states, “Transgender
9
10
11
David Valentine, Imagining Transgender: Ethnography of a Category (2007).
SAATHII, supra note 5.
See Dutta & Roy, supra note 6, at 320-337.
229
is generally described as an umbrella term for persons whose gender identity,
gender expression or behavior does not conform to their biological sex.” This
is a wide definition – it does not specify exactly how a ‘transgender’ person
may identify, but only that trans people’s identities, expressions or behavior do
not correspond to their socially assigned sex or gender role in some way. The
paragraph goes on to mention that ‘transgender’ may include hijras who identify as neither men nor women, pre- or post-operative transsexual people who
wish to undergo ‘sex reassignment surgery’ or SRS “to align their biological sex
with their gender identity in order to become male or female”, and ‘transvestites’ who like to dress “in clothing of opposite gender” (p. 11). Subsequently,
the judgment text further specifies that ‘transgender’ may encompass various prominent regional and trans-regional communities/identities like hijras,
kothis, aravanis, jogtas/jogappas, and shiv-shaktis (pgs. 56, 109, 110). The language and terminology used in these various sections suggests that the judgment has drawn together definitions of the transgender category and associated
communities found previously in various official documents such as the MSJE
report and the UNDP consultation reports mentioned above. However, despite
the apparent openness to a variety of trans identifications and embodiments,
there are some major omissions. As Semmalar points out, trans men and trans
masculine people (i.e. masculine-identified people assigned female at birth)
are mentioned only at a few places (pgs. 35 and 61). In a judgment by the
Madras High Court, the NALSA judgment has been interpreted as only applying to the male-to-female transgender spectrum and not to female-to-male
trans people, thus potentially excluding a large number of trans people from
the ambit of the judgment –though the Madras High Court does note that in
its opinion, female-to-male trans people should also have the right to gender
self-determination.12
Moreover, even for trans women and trans feminine people, the judgment text evidences the tendency of defining and marking the boundaries
between various identities and population groups, which may impose generalized definitions and restrictive borders on complex and overlapping groups of
people. On pages 10 and 11, following the wide generic definition of ‘transgender’ mentioned above, the text provides an overview of transgender groups,
particularly hijras, ‘transsexual persons’ and ‘transvestites’. The hijras are
described as being ‘third gender’; distinct from transsexual women who seek
‘SRS’ to become female; who are further distinct from ‘transvestites’ who do
not seek SRS (one may note here that terms like ‘transvestite’ and ‘eunuch’,
used at various parts of the judgment, may also be deemed as derogatory by
people within trans communities13). This potentially flattens a wide variety
of identification within hijra communities and assumes that all hijras will be
automatically classifiable as a separate or ‘third’ gender – but, as Semmalar
12
13
Jackuline Mary v. Supt. of Police, WP No. 587 of 2014, Orinam, (Madras High Court,
17-4-2014).
On this issue, see Semmalar, supra note 7.
230
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notes, some hijras may choose to identify as female rather than ‘third gender’.
Further, this adjudication of identitarian boundaries also relies on biological
essentialism, placing the value on physical attributes rather than self-determination as the baseline for gender identity. Thus, hijras are deemed as being
‘neither men nor women’ not because of their self-identification, but ‘since
Hijras do not have reproduction capacities as either men or women’ (p. 10).
Again, this homogenizes the hijra community in reductive biological terms –
as many ethnographies note, hijras may be akua (non-castrated/penectomized)
as well as nirvan (those who have undergone castration/penectomy). Further,
trans men and women’s identities are premised on their willingness and ability
to get ‘sex reassignment surgeries’ even though many, if not most trans people
are unable to access such procedures (and some may not want them).
Such definitions and distinctions tend to homogenize each category in
terms of essentialist assumptions, and restrict the freedom of self-identification
including potential overlaps and crossings between various identity categories.
As I have argued elsewhere, and as also noted by several other researchers and
community activists, there may be many different (trans)gender identities or
subject positions among the communities mentioned in the judgment.14 Kothis
may identify also as hijra and vice versa; hijras may variably identify as female
or a ‘third gender’, and kothis may variably identify as feminine same-sex desiring males, as trans women, or as a ‘third’/separate gender – often without
undergoing medical transition. On pages 55-57, where the text describes these
communities in detail, it does try to recognize the diversity and internal variety in these communities to some extent, and acknowledges that many people
in these communities may have fluid identities and that identities may overlap
(p. 56). But such nuances are undercut by the tendency evidenced at various
points of the judgment to conflate ‘TG’ with ‘hijra’, making hijras the primary
referent of the transgender category despite mentioning a variety of trans identifications and embodiments (e.g. p. 59, 111), and further, by associating all
hijras with a ‘third gender’ identity (pgs. 81, 128).
Despite evidencing such limitations, Justice Radhakrishnan’s section
goes on to give a broad interpretation of Articles 14, 15, 16, 19 and 21 of the
Constitution, saying that the constitutional provisions for equality (Article 14)
apply to all persons irrespective of gender (p. 70), and the provisions against
discrimination on grounds of sex (Articles 15 and 16) should also be taken
to apply to gender identity, and thus to transgender and hijra people (p. 74).
Further, Radhakrishnan specifies that the legal provision for affirmative action
in fields such as education, healthcare and employment should also apply to
transgender people (p. 75). In the most wide-ranging part of the judgment,
Radhakrishnan states that any “discrimination on grounds of gender or sexuality” goes against the Constitutional measures for “equality by the law or equal
protection by laws guaranteed under our Constitution” (p. 86). The mention
14
See supra note 11.
231
of ‘sexuality’ in addition to gender suggests that the judgment could potentially serve as a strategic tool to advocate legal rights for and counteract gender/sexuality-based discrimination against a wide range of LGBT persons and
communities.
However, Justice Sikri’s section goes on to narrow the scope of the judgment, defining ‘transgender’ in a much narrower sense than elsewhere in the
judgment. Sikri explicitly leaves out Lesbian Gay and Bisexual (LGB) people
from the ambit of ‘transgender’ (p. 109). This stands in contradiction to certain preceding sections of the judgment, as LGB people may also be gender
variant, and the previous mention of ‘transvestites’ (p. 11) suggests that gay
or lesbian people who cross-dress without necessarily identifying as the ‘opposite’ sex would also be covered under the judgment. Historically, several gender variant communities like kothis have organized under rubrics like ‘MSM’
or ‘males who have sex with males’, and kothi communities may overlap with
both feminized male homosexual and male-to-female transgender identities.15
A rigid distinction between LGB and T may therefore arbitrarily split overlapping community spectrums. Further, Justice Sikri goes on to state that transgender, for the purposes of the judgment, would particularly denote hijras:
“therefore, we make it clear at the outset that when we discuss about the question of conferring distinct identity, we are restrictive in our meaning which
has to be given to TG community i.e. hijra etc., as explained above.” (p. 111).
He also presumes that hijras would be generally identified as a ‘third gender’
(p. 113). This has bolstered reductive interpretations of the judgment that leave
out other trans or gender variant groups such as trans masculine people, as
mentioned above.
II. THE
LIMITS OF SELF-DETERMINATION
The judgment has been lauded by the Lawyer’s Collective for upholding
the self-determination of gender, that is, the right to determine one’s gender
identity irrespective of socially assigned sex or physical state of transition (surgery, hormones, et cetra.).16 Among the nine directives listed in the last section
of the judgment, the second directive states that “transgender persons’ right to
decide their self-identified gender is also upheld”, whether as male, female or
third gender, and asks both the centre and the states to grant legal recognition of such identity (pg. 128). The directive does not mention a requirement
for surgery or hormones, and indeed, a later directive (no. 5) states that “any
15
16
See Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South
India (2005).
Lawyer’s Collective, Supreme Court recognizes the right to determine and express one’s gender;
grants legal status to “third gender”, <http://www.lawyerscollective.org/updates/supreme-courtrecognises-the-right-to-determine-and-express-ones-gender-grants-legal-status-to-third-gender.
html> (last visited 10-3-2015).
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insistence for SRS [sex reassignment surgery] for declaring one’s gender is
immoral and illegal” (p. 128).
However, the apparent promise of self-determination is contradicted
and limited in the judgment in several ways. As Semmalar points out, the
first directive declares that Hijras are to “be treated as ‘third gender’ for the
purpose of safeguarding their rights”, which seems to preclude their right to
self-identify as ‘female’ or even ‘male’ (p. 127). Thus, there is actually a contradiction between the first and second directives. Apart from homogenizing
hijras and restricting their self-determination, Semmalar points out that this
also creates a confusion regarding whether one would have to be categorized as
‘third gender’ in order to access the safeguards and affirmative action promised
by the judgment, or whether these would still be available if someone legally
identified as the ‘opposite’ gender.17 Further, at several points, the directives
seem to conflate ‘transgender’ with ‘hijra’, as evidenced in the repeated use of
the phrase ‘hijra/transgender’ in the fourth and fifth directives (pg. 128). Thus
it is no wonder that in most media coverage, the judgment has been mostly
taken to pertain to Hijras and their recognition as a ‘third gender’; and the
argument for self-determination of gender is largely forgotten or elided.
Further, the provision for self-determination is not only undercut by
the imposition of categories such as ‘third gender’ on entire communities, but
also through references to external testing and verification of gender identity.
Indeed, the judgment is rather unclear and even contradictory on the question
of the requirements for legal gender recognition, and veers between individual
self-determination and external certification of gender. Justice Radhakrishnan’s
section appreciatively cites the Argentinian model of gender recognition which
allows for self-identification of gender without requiring any sort of medical
transition procedures, a model which has been lauded by many trans activists (pgs. 46, 53). Yet, at other points, Radhakrishnan suggests that instead
of medical requirements one would have to apply a ‘psychological test’ for the
self-identity of transsexual persons, and equates trans persons’ identity with the
psychological state of ‘gender dysphoria’, a clinical term for the feeling of discomfort and distress with one’s assigned sex and strong identification with the
other sex/gender (pgs. 45, pg. 84). The psychologization of trans identity (i.e.
evaluating trans people’s identities through a diagnosis of psychological gender dysphoria) potentially restricts the freedom of self-determination. As many
trans activists have pointed out, common models of gender dysphoria in psychiatry and medicine are often based on binary and linear models of identification (e.g. being trapped in a ‘wrong’ body), which presume a binary framework
of gender that may work for some but not other trans or gender variant people.
Justice Sikri’s section is even more constrictive. Where Radhakrishnan
suggests the substitution of ‘psychological test’ for ‘biological test’, Sikri seems
17
Semmalar, supra note 7.
233
to stipulate the biologically essentialist requirement that surgical transition to
change ‘physical form’ would be necessary for recognition as (trans) male or
female, even if such transition is not required for ‘third gender’ persons: “we
are of the opinion that… a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well” (p. 108, my emphasis).
Since the directives at the end of the judgment pass the onus for legal
identity recognition on to the Central and State governments, it seems likely
that different states will interpret the contradictory elements in their own
ways and will fix the procedures for gender recognition that they deem fit. In
a piece on gender change legalities in India, advocate Kaushik Gupta notes
that despite the NALSA judgment, “there is no established procedure for
change of gender identity in documents, nor is there any specific law governing the field”.18 One option is to first get an affidavit affirmed by a First Class
Magistrate, and subsequently approach relevant government departments to
publish the change of gender in the state’s Official Gazette and to change gender markers on state-issued identity cards. However, while the NALSA judgment assures that citizens have the right to gender self-determination without
necessitating gender affirmation surgery, a trans man commenting on Gupta’s
piece notes that in West Bengal, the Official Gazette still requires documentation of SRS (sex reassignment surgery) to publish the change of gender from
‘female’ to ‘male’, and does not accept a pre-operation affidavit - despite the
directive on the right to gender self-determination without requiring SRS.19
Subsequent to the judgment, the MSJE has responded to some of its
fallacies and has asked the Supreme Court to clarify whether all trans people
should be clubbed as ‘third gender’ or does that only apply to Hijras specifically.20 However, some states such as Chhattisgarh seem to have already interpreted the judgment to pertain only to ‘third gender’ identity recognition21
Unless the Supreme Court comes up with clearer guidelines in response to the
MSJE’s queries, procedures for identity recognition are likely to remain haphazard and vary between states. Further, there may be gender policing by state
bureaucratic mechanisms (determining who can be third gender, who can be
recognized as transitioned male or female, etc.). Indeed, trans/kothi/hijra people
have already faced arbitrary bureaucratic requirements when making applications to change gender identity to their preferred option in legal documents
such as voter I.D. cards or Aadhaar cards, and there have been cases where
18
19
20
21
Kaushik Gupta, More on Gender Change Legalities, Varta (20-1-2015), <http://varta2013.blogspot.com/2015/01/more-on-gender-change-legalities.html?zx=590bc07ee4b1dc62>.
Id.
MSJE, Supra note 2, at 7.
Govt. of Chhattisgarh, 2014, “Tritiya Ling Varg ke Vyektiyon ke Utthan ke Sambandh Mein”
(On the Empowerment of Third Gender Persons), Raipur, 10-10-2014.
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they have been expected to show proof of medical transition.22 Despite the
provision for gender self-determination in the judgment, such experiences suggest that trans/gender variant people will continue to face various bureaucratic
requirements and arbitrary rules regarding gender recognition in order to get
the legal IDs they would need to access welfare measures like reservations.
The MSJE’s intervention may only strengthen such bureaucratic requirements. On page 129, the judgment defers to the Expert Committee constituted by MSJE for suggesting measures and recommendations, which probably
means that the MSJE report may provide some of the concrete procedural
guidelines that are missing in the SC judgment.23 The MSJE recommends
on pg. 34 of its report that ‘Certificate that a person is a transgender person
should be issued by a state level authority duly designated or constituted by
respective the State/UT’, and these state-appointed committees will comprise
a psychiatrist, social worker, two transgender representatives, etc. – the report
rejects the simpler option that one could just submit affidavits by oneself and
one’s friends as proof of one’s honesty in declaring their gender. This suggests
that the “right to decide their self- identified gender” as male/female/third will
not be accessible easily, and will be subject to the requirement to ‘prove’ one’s
gender identity to bureaucratic committees. Again, this leaves the door open
for identity policing, and requirements like surgery/hormones may return,
especially if one wants legal recognition as the ‘opposite’ gender.
III. DETERMINING
THE SOCIAL AXIS FOR RESERVATIONS
The designation of transgender and hijra people as a ‘backward class’ for
the purpose of reservations has proved to be another contentious point regarding the judgment. Right from the opening sentence on the “trauma, agony
and pain” suffered by “members of the transgender community”, the judgment largely proceeds on the assumption of a homogenous social position of
transgender and hijra people based solely on gender. It does not considerany
other axes of social marginalization, such as caste and class, and their intersection with gender and/or sexuality, which may result in differences among
trans people. At the same time, and somewhat paradoxically, it establishes
a parallel between caste and gender, and indeed substitutes the latter for the
former. As noted above, the judgment notes that Articles 15 and 16 of the
Constitution, prohibiting discrimination on the grounds of sex, should extend
to transgender and hijra people as well (pp. 74, 75). Further, it notes that
‘TGs’ have been hitherto excluded from constitutional measures to counteract
the patterns of discrimination against disadvantaged groups, but such measures
22
23
On this, see A. Dutta, “Shamajik Linga Vibhajan ebong Prantik Linger Aini Swikriti: Supreme
Court-er Transgender Bishoyok Ray niye Kichhu Mantabya” (Social Gender Differentiation
and the Legal Recognition of Marginalized Genders: Some Comments on the Supreme Court’s
Transgender-related Judgment), 1(1) Prantaswar: The Polymorphous (2015).
MSJE, supra note 2.
235
for affirmative action should be available to them as well: “TGs have also not
been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens,
which they are, and hence legally entitled and eligible to get the benefits of
SEBC. State is bound to take some affirmative action for their advancement
so that the injustice done to them for centuries could be remedied” (p. 75).
However, historically, the paradigm through which ‘socially and educationally
backward classes’ have been gauged is caste; thus the move to place ‘TGs’ as
a whole as an SEBC simply substitutes the axis of gender in the place of caste
without considering that ‘TGs’ may span a range of class and caste positions.
Subsequently, the section on the directives proclaims, “We direct the Centre
and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in
cases of admission in educational institutions and for public appointments”
(p. 128). This has largely been interpreted to mean that transgender and hijra
people should be given the benefits of affirmative action accorded to the OBC
(‘other backward classes’) category (as evidenced by most media articles).24
This conflation of ‘transgender’ with ‘backward classes’ in general and the
OBC category in particular has created several problems of interpretation and
application.
Semmalar points out that many Dalit trans persons do not want to come
under the OBC category, and lose out on the provisions granted to SC/ST categories.25 Conversely, as I had observed during the post-NALSA consultations
in West Bengal, a few upper caste trans and hijra leaders do not wish to be
categorized as OBCs. In response to the question of reservations, there are at
least two approaches that have been proposed by transgender and hijra community members. During a state-level consultation on transgender and hijra
issues organized by the West Bengal Government’s Department of Health and
Family Welfare on July 15, 2014, some transgender activists demanded the creation of a separate sub-category under OBC which could be called OBC-T, as
they feared that otherwise OBC cis men and women would claim most of the
benefits under the category. On the other hand, the Telangana Transgender
Hijra Intersex Samiti in Telangana has asked for reservation on grounds on
gender, rather than within caste-based categories like OBC.26 In their proposal,
‘transgender’ would be a separate category and not fall under OBC or SC/ST;
thus, Dalit trans people would be able to combine reservations based on both
‘TG’ and SC/ST categories (as they suffer from an intersection of oppressions
based both on caste and gender), whereas savarna (upper caste) trans people
24
25
26
For example, see Dhananjay Mahapatra, Supreme Court Recognizes Transgenders as Third
Gender, Times of India, 15-4-2014, <http://timesofindia.indiatimes.com/india/SupremeCourt-recognizes-transgenders-as-third-gender/articleshow/33767900.cms>.
Semmalar, supra note 7.
Telangana Hijra Transgender Intersex Samiti, 2014. “Our Demands”. available at <https://
www.facebook.com/events/959039437443450/permalink/959061504107910/>.
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would draw upon only the TG category and not OBC or SC/ST categories
(as presumably, they suffer discrimination based only on gender and not caste/
class). The MSJE has also stepped into the fray, and has asked the SC to not
club all trans people as OBC (‘other backward classes’) and to go through the
procedures of the National Commission for Backward Classes for proposing
categories for reservation or affirmative action (pp. 12-14, 20-22).
Given that there seem to be multiple options that have been proposed,
and proposals have varied between states, it seems likely that it will take considerable time and deliberation before the Central or State Governments arrive
at any schema of reservation or affirmative action – especially if, as the MSJE
suggests, the state must go through the National Commission for Backward
Classes to approve any reserved category. Moreover, the question of fixing a
category for reservation will probably contribute further to restricting and narrowing the relatively wide-ranging definition of ‘transgender’ proposed at some
parts of the judgment. This is already evident in the state of West Bengal,
where a representative from the West Bengal Commission for Backward
Classes asked the state government to fix a clear definition of ‘transgender’
for the purposes of reservation in the aforementioned July 15 consultation on
transgender and hijra issues.
IV. C ONCLUSION
In July 2014, Sumi Das, the secretary of Moitrisanjog Coochbehar, a
community-based organization working with transgender kothi and hijra communities in the district of Coochbehar in West Bengal, published a public
post on Facebook critiquing the exclusionary nature of the state-level consultations in West Bengal on transgender and hijra issues.27 In her post (written
in Bangla), Das pointed out that many small town organizations have been
left out of the consultations, and critiqued how the state, powerful non-governmental organizations and activists often adjudicate who is to be recognized
as ‘transgender’ and who is not, leading to the exclusion of less privileged and
particularly rural communities from state initiatives. Das’s post warned against
petty politics and competition regarding which transgender people would get
to be on the state transgender welfare boards or committees. This significant
critique, coming from within the community affected by the judgment, serves
as an important cautionary message against some of the perils of relying on
the mechanisms of the law and the state to gain inclusion and citizenship. One
can only hope that transgender, hijra and kothi communities will continue to
question and strive beyond the governmental and legal adjudication and management of transgender identity, even as we stake our rightful claim to citizenship, rights and recognition.
27
S. Das, Bhishon Bhalo Udyog Amader Poshchimbanga Shorkarer (A Good Initiative from our
West Bengal Government), (26-7-2014), <www.facebook.com>.
Resurrecting the Other of
‘Modern’ Law: Investigating
Niyamgiri Judgment &
Legal Epistemology
—Amit Bindal*
The article attempts to decode how the cosmology of the world of myth
and legends is evaluated in the epistemic framework of rights guided
by the discourse of liberalism. It investigates the Indian Supreme
Court judgment in the Niyamgiri case to analyze the encounter of
‘modern’ law with the tribal worldview informed by the mythic tradition. The article, on the one hand, celebrates the approach of the
Court in its move to diversify the notion of justice by its sensitive
treatment towards the languages and the logics of tribal worldview.
On the other hand, however, the article points out the limits of modern liberal framework, within which the modern legal system is situated, in adjudicating the claims which are couched in the language of
‘sacred’, unknown to the institution of modern law.
I. I NTRODUCTION
Dongria Kondh, Kutia Kandha and others constitute several tribes which
inhabit an existence in the state of Orissa and are isolated from the discreet
charms and cacophony of modern urban life. They occupy a space in the midst
of a hill surrounded by dense forests. Their worldview radiates a sharp contrast
to the strictly ‘rationalist’ worldview as it is conceived of notions of myths,
legends and stories, all of which play an important part in their lifestyle. For
instance, the summit of these Niyamgiri Hills is conceived by the inhabitants
to be the abode of ‘Niyam-Raja’ (Niyam King). This language of the tribals is
a language of ‘myth’, unknown to the modern-nation state as it is opposed to
*
Assistant Professor at Jindal Global Law School, O.P. Jindal Global University, Sonipat
& PhD Candidate at Centre for Studies in Social Science (CSSS), Calcutta. The author
acknowledges Dr. Shiv Vishavanathan for his support and encouragement in evaluating
“myth” from a legal standpoint. He further thanks Dr. Ashley Tellis for his incisive comments on an earlier version of this paper. He is also grateful to the anonymous editor and
peer reviewer for their insights.
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the script of modernity-the predominant language of the contemporary times.1
Habermas situates the roots of the modernity and the modern legal system, in
general, on the denial of the primordial ‘myth’.2 He points out that one of the
prominent aspects in the birth of modernity in the west is the erasure of the
mythical. The thrust of this essay is not a fuller exposition of the tribal worldview with that of modernity. Rather, it considers and evaluates the limits of
liberal democratic imagination when the mythical world confronts the logics of
the ‘modern’3 conception of world in the legal courtroom. The essay is a brief
comment on what is popularly known as the Niyamgiri case where the mythical vocabulary of tribals came in conflict with the logics of the modern nation
state and the confrontation was sought to be adjudicated by the modern legal
system. Let us begin with a preliminary account of the genesis of the conflict
that came up before the Supreme Court of India.
Vedanta group of companies along with Orissa Mining Corporation
wanted to start an alumina refinery project in the hills inhabited by the tribals. They sought permission for diversion of forest land for land mining of
Bauxite ore, and this led to the initial conflict as the move was opposed by
local inhabitants. The clearing of the project led to multiple litigations culminating in the case wherein the Supreme Court sought a report to be prepared
delineating clearly the impact of the project on the wildlife and biodiversity of
the tribal areas.4 The Court suggested a “rehabilitation package” to be agreed
upon by the concerned companies in order to clear the mining project. The
companies unconditionally agreed and received Stage-I forest clearance.
The present case5 arose when the Orissa Mining Corporation Ltd. filed
a petition before the Supreme Court of India challenging the denial of final
forest clearance, for the purposes of mining, by the Ministry of Environment
and Forests (MOEF). The MOEF had rejected the Stage II forest clearance
due to the adverse findings on the social impact of the project on tribal settlement. The MOEF relied on the Saxena Committee Report which raised
various objections against the clearance of the mining project. There were
1
2
3
4
5
For the modern enlightenment thought these tribes were apt to be conceptualized, somewhat
violently, as the “non/pre-modern” untouched by the waves of modernity. See, Leo Strauss,
The Three Waves of Modernity, Political Philosophy 81-98 (1975).
J. Habermas, The Philosophical Discourse of Modernity: Twelve Lectures 107
(1987). (He argues that “enlightened thinking has been understood as an opposition and
counterforce to myth”).
For an excellent and authoritative account of the historical emergence of secularisation in
European thought, see, Charles Taylor, A Secular Age (2007). (The expression “modern”
throughout this essay is to be understood in relation to the historical notion of European
enlightenment thought which predominantly foregrounded “reason” and “rationality” as the
foundation of development of any society).
The two cases which preceded this decision were T.N. Godavarman Thirumulpad (104) v.
Union of India, (2008) 2 SCC 222 and T.N. Godavarman Thirumulpad (106) v. Union of India,
(2008) 9 SCC 711.
Orissa Mining Corpn. Ltd. v. Ministry of Environment & Forests, (2013) 6 SCC 476.
RESURRECTING THE OTHER OF ‘MODERN’ LAW
239
alleged lapses on the part of petitioners that were shown by the Report of the
Committee. The lapses included lack of consultation with the native tribal
groups and the possibility of adverse impact on the existing biodiversity and
ecology of Niyamgiri Hills on which the lives and the habitat of the tribal
population depended. Further, the report pointed out violations of the provisions of environmental protection legislations such as the Forest Rights Act,
2006, the Forest (Conservation) Act, 1980 and the Environment (Protection)
Act, 1986. The petition before the Court opposed this order of the MOEF,
which in turn had halted the mining of bauxite in the area. The opposition
to this petition was not only by the Ministry but also by the tribal inhabitants. For the natives it was a direct affront of the modern state on their sacred
lives. Such an instrumentalist conception of land was not merely interfering
with their lifestyle but was also an unacceptable trespass into the sacred abode
of Niyam King. It is the fate of the latter argument, apparently irrational or
unscientific, in the modern legal system that is the central point of scrutiny
in this case. We may ask whether the claim is really irrational. Or, is it possible to decipher sense in the ‘unreason’ of the tribals? Goodrich argues that
“lawyers have always been indecently zealous to reduce behaviour to rules and,
in constructing the abstract world of the doctrines and science of law, have
tended to be forgetful … of the irrationality … embedded in social life.”6
In what follows we attempt to study the script of the encounter between the
seemingly irrational tribal worldview and the logics of the modern nation state.
II. C ONTESTING MYTHOLOGIES
AND
E PISTEMOLOGIES
The case involved and evoked issues relating to the rationality of modernity and indigenous sensibility, the logics of progress and development, and
the right to collective cultural existence of the tribes. Moreover, the issue was
one of language- of translating the language of the mythic on the legal register
of rationality. At the heart of the conflict was the core issue of diversity of a
distinct cosmology, language and existence different from the ‘modern’ ways
of understanding the world. The importance of this conflict on the juridical
register lay in elaborating on the way the law, in its modern avatar, dealt with
and would deal with the claims of its other (here, the tribal population). What
would the frame of reference be to adjudicate upon the claims of those whose
existence and language styled them as aliens, outsiders and strangers to the
modern law? What was communicated and what was lost in translation when
the language of myth is translated into the language of modern legal rationality? In attempting to answer such questions, the issue of diversity became more
prominent as it itself involved some radical questions which inquired into the
very foundations of the modern legal systems.
6
Peter Goodrich, Law and Modernity in Nietzsche and Law 275 [Francis J. Mootz III
& Peter Goodrich (Eds.), 2008].
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The argument of the tribal populace was couched in terms of a non-Eurocentric perspective and the conceptualization of nature and its relationship
with the social. The claim of non-interference with the ‘abode of Niyam Raja’
treated nature as an organic and inseparable part of social existence where
nature itself became a living organism and ‘Niyam Raja’ a personification
of such a social outlook. This was deeply in contradiction with the modern
Cartesian notion of understanding nature as a res extensa (corporeal substance),
or what is somewhat cruelly styled as terra nullius, and as a resource which is
to be tamed by human intervention.7
The Supreme Court’s decision needs closer scrutiny to appreciate the
conceptual aspects of the judgment. The initial question was that of ownership of resources underneath the forest, in this case bauxite. For the tribals this
was an issue of a sacred relationship but for the state it was merely an issue of
ownership in technical and legal sense. The Orissa Mining Corporation argued
that since the ownership was vested in the State Government, the Schedule
Tribes or Traditional Forest Dwellers (STs & TFDs) had no claim over it.8
The claim of ownership over natural resources by the state itself reflected the
colonial incarnation of the modern-state which considers forests as ‘property’
which is to be owned by the state as opposed to the idea of forest as ‘commons’.9 The Court accepted the claim of ownership as an acceptable proposition approvingly citing other case law.10 However, the Court emphasized the
obvious by stating that the ownership of the state was in the nature of ‘trustee’
of the people and it had to discharge its functions in accordance with law.11
To understand this move of the Court we have to contextualize the hermeneutical exercise of law in socio-political terms. The Court here, unknowingly, confronted the schizophrenic self of the Indian state. One part of this
self (the petitioners) sought permission to move further with the mining project on the legal grounds of ownership and with the larger political claim of
development and progress. The other part sought the putting of ecological,
7
8
9
10
11
Boaventura De Sousa Santos, Epistemologies of the South: Justice Against
Epistemicide 23 (2014). (Santos insightfully points out that “[f]rom a Cartesian point of
view, the fact that Ecuadorian Constitution includes a whole section devoted to rights of
nature is juridically and ontologically absurd, a true aberratio entis”).
Supra note 5, at para 50.
In the pre-colonial India even the kings never considered themselves as owners of forests
though they acquired revenue. Conceptualising forests as private property was a colonial
notion which violently remains a part of the modern Indian nation-State. See, Chatrapati
Singh, Common Property and Common Poverty: India’s Forests, Forest Dwellers,
and the Law (1986); For a contextualisation of the idea of commons within Indian constitutional framework, see, Shiv Vishvanathan & Chandrika Parmar, Life, Life World,
and Life Chances: Vulnerability and Survival in Indian Constitutional Law in
Law And Globalisation From Below: Towards a Cosmopolitan Legality 339-362
[Boaventura de Sousa Santos & Ce´sar A. Rodrı´guez-Garavito (Eds.), 2005].
Amritlal Nathubhai Shah v. Union Govt. of India, (1976) 4 SCC 108.
241
cultural and ethical restraints on that ownership claim and the construction
of a framework of inclusive and humanist development. The task of the judicial interpreters was to adjudicate these conflicting claims or conflicting selves
of the modern state. The schizophrenia was apparent in the very title of the
case as the Mining Corporation of the state which claimed the ownership for
development was pitted against another wing of the state, the MOEF, which
emphasized on the restrictions put on the ownership rights for inclusive and
equitable development.
The exposure of the state’s split self, as witnessed in the case, forms the
core of the paradox and dilemma of the modern nation state which simultaneously seeks to promote capitalist neo-liberal industrialization along with
the welfare of people at large. The Saxena Committee Report, relied upon by
MOEF, was one instance provided by this case which pointed out the impossibility in achieving these two aspirations together, thereby resulting in gross
violations, as pointed out by the committee, of laws protecting diversity and
environment on the part of petitioners.
The larger point which became apparent by a closer look at the split
personality of the modern state was whether the response of the modern state
and the western liberal imagination to cultural and environmental demands,
reflected in their formulation of environmental policies for sustainable development, was adequate, particularly in light of the realization by both schools
that the ‘extractivist’ view of nature was untenable? Santos argued that it was
impossible to attain the contradictory demands as he found such responses of
environmentally friendly policies as ‘weak answers’ to the ‘strong questions’
of whether “the conception of nature as separate from society, so entrenched
in Western thinking (is) tenable in long run?” He found the answer weak as
it remained within the paradigm of the Cartesian epistemological model. He
added, “No matter how many qualifiers are added to the concept of development, development keeps intact the idea of infinite growth and unstoppable
development of productive forces.”12
Further, the Supreme Court emphasized the framework of rights and
the claims of indigenous people. The Court spelled out the constitutional protection as well as the protective canvas of International conventions.13 Further
support was drawn from the purpose of protection provided in various enactments to the indigenous people including the Forest Act and other legislations.14 Additionally, the Court emphasized the provision under Panchayat
(Extension to Scheduled Areas) Act, 1996 (PESA Act) which empowers the
12
13
14
Santos, supra note 7, at 23.
Id., at ¶¶ 33-38.
The court elaborately discussed the objective and reasons of Panchayat (Extension to
Scheduled Areas) Act, 1996 (for short “PESA Act”) accentuating the importance of decentralisation, cultural identity community resources in the Act.
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Gram Sabha and encourages the customary form of dispute resolution.15 Here,
we need to once again conceptualize the mapping of the framework of protection of the indigenous rights of the tribal people and the traditional forest dwellers. The Court in this juridical exercise of reason was attempting to
underscore the relevance and importance of preservation of traditional and
customary rights of the people, “their cultural identity, community resources
and the customary mode of dispute resolution.”16
A brief but instructive moment of the judgment provided the reason for
the emphasis on this framework of indigenous rights while deciding upon the
governmental and corporate claims for developmentalism.17 The Court insightfully pointed out the uneven plane of the parties involved in disputes such as
the present one. An inherent imbalance was found in the fact that the tribal
people and traditional forest dwellers were “totally unaware of their rights”.
Further, the Court also discussed their “difficulties in obtaining effective access
to justice because of their distinct culture and their limited contact with mainstream society”.18 The importance of traditional knowledge was recognized as
not only having a “vital role to play in environmental management” but also
it was acknowledged that “they (TFDs) did not have the financial resources
to engage in any legal action against development projects undertaken in their
abodes or the forests in which they stayed.”19 One may find this attitude of
the Court to be paternalistic but at times paternalistic protection is necessary
within the liberal democratic paradigm. However, this is not to say that this is
sufficient for those on the receiving end of the spectrum. While, it is necessary
as it appreciates that there is no level playing field in this contest and such
recognition is important, however, the question of what would be a sufficient
response remains open, along with the question of whether such a response
can at all be provided within the modern liberal framework. Would a sufficient
response require an epistemic shift altogether by not expecting “legal awareness” of tribals but by acknowledging the sacred worldview or giving it recognition? These questions still require further elaboration.
There is no doubt that it is important to applaud this attempt of the
Court since previously the Supreme Court of India had abstained from even
the recognition of the non-level playing field for the tribals. For instance, consider the purely exclusionary and modernity driven discourse of the Supreme
Court in Narmada Bachao Andolan v. Union of India20 where the Court justified the construction of the dam over the Narmada river leading to the displacement of tribal people as in the Court’s view, their “gradual assimilation in
15
16
17
18
19
20
Section 4(d) of PESA Act.
Supra note 3, at ¶ 36.
Id., at ¶ 39.
Id.
Id.
(2000) 10 SCC 664.
243
the mainstream of the society will lead to betterment and progress’’.21 This was
done despite the acknowledgment that “displacement of these people would
undoubtedly disconnect them from their past, culture, custom and traditions,
but then it becomes necessary to harvest a river for the larger good.’’22 Thus,
in the light of such precedents where the Court blinded itself to the alternative
tribal worldview, such acknowledgement needs to be applauded. It reflects a
sincere attempt on the part of the Court to understand the inherent imbalances of the liberal framework of rights and also serves as a sensitive step
towards diverse notions of justice itself.23
The Court, appreciating the importance of tribals in environmental management, delegated the decision to the Gram Sabha in the final pages of the
judgment. The Court urged the Gram Sabha to decide whether “their (the tribals’/ TFDs’) right to worship their deity, known as Niyam Raja, in the hills
top of the Niyamgiri range of hills … has to be preserved and protected.”24
Clearly, the language of the Court displayed sensitivity towards the cosmology
of its other, and in this sense, the judgment serves to set an important precedent for adjudicating conflicts confronting unique worldviews.
III. THE (I M)-POSSIBILITY
OF TR ANSLATING THE SACRED
In the final analysis of the Supreme Court’s judgment, a closer scrutiny
of the constitutional logic employed by the Court is required. This is important as the somewhat impossible attempt of assimilating the sacred into the
framework of liberal rights discourse reflects the limits of this frame itself. In
other words, a closer look at the Court’s reasoning in translating the sacred
on the constitutional register raises certain deeper questions about the liberal
construction of the Court’s own self. Let us illustrate this point more clearly
by referring to a passage from the judgment where under the rubric of sacred
rights the Court discussed the customary and religious rights of the tribals in
constitutional terms:25
Religious freedom guaranteed to STs and the TFDs under Articles 25
and 26 of the Constitution is intended to be a guide to a community
of life and social demands. The above mentioned Articles guarantee
21
22
23
24
25
Id., at 703.
Id., at 765.
For a critique of the modernist script of court’s judgment in Narmada case, see, Balakrishnan
Rajagopal, “Limits of Law in Counter-Hegemonic Globalisation: The Indian Supreme Court
& the Narmada Valley Struggle” in Law And Globalisation From Below: Towards a
Cosmopolitan Legality 339-362 [Boaventura de Sousa Santos & Ce´sar A. Rodrı´guezGaravito (Eds.), 2005].
Supra note 3, at ¶ 58, the court also quite uncharacteristically of a modern court reiterated
that the Gram Sabha should also consider and decide if the bauxite mining project “would in
any way affect the abode of Niyam-Raja”. Id.
Id., at ¶ 55.
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them the right to practice and propagate not only matters of faith or
belief, but all those rituals and observations which are regarded as
integral part of their religion. Their right to worship the deity NiyamRaja has, therefore, to be protected and preserved.
In order to situate the comment in its proper context we need to closely
scrutinize the argument in the passage. The Court understood the sacred
relationship of the tribals with their deity (the hill-top, which is the abode
of Niyam Raja) in terms of the constitutional right to freedom of religion.
Can an alternative cosmological conception wherein the relationship between
nature, society and the sacred is visualized only be understood as religion?
Is this a religious claim at all or an argument for an alternative cosmological
existence? Is the only way to imagine a world alien to modern sensibility one
by designating it as religious? The expression ‘religion’ has certain specific connotations in modern political theory and in its constitutional encoding which
carries baggage with itself. Do we require the spectacles of religion to be able
to make sense of a world whose logics and meta-logics do not fit within the
modern secularized framework? Perhaps, this is the only available, though
painfully inadequate, register on which ‘myth’, ‘rituals’ and the ‘sacred’ can be
translated in the modern liberal framework. However, the passage reflects both
the unease and the limits of the logic employed by the Court in arriving at
this conclusion.
The unease lies in the broader sweep of religious freedom under which
the Court locates and situates the sacred rights. That is to say that the Court
merely read the rights of the Schedule Tribes (STs) and Traditional Forest
Dwellers (TFDs) under both Articles 25 and 26 while the two Articles inhabit
very distinct spaces within their constitution. More importantly, the deeply
problematic aspect of this act of translation lies in fact that the “worship of the
deity Niyam-Raja” is protected and preserved under the Constitution only if it
is “regarded as integral part of their religion”.
The logic which unfolds here is that the Court implicitly read the ritual
or practice of worship of the deity as an integral part of the tribals and thereby
protected it under the broad rubric of freedom of religion. Why is it that the
only way to appreciate diversity is to translate it on a religious register? This
brings in an entirely new problem that, in turn, has limited the potential of
the claim of diversity by straightjacketing it into essential or non-essential
practices. The broad right of freedom of religion has been interpreted by the
Indian courts as protecting only those rituals and practices which form the
integral or essential part of the religion.26 Styled as the essential-practices test
under Indian constitutional law jurisprudence, the test empowers the courts to
26
For the historical evolution of the doctrine, see, Amit Bindal & Latika Vashist,
Secularism in The Preamble 80-96 [Deepa Kansra (Ed.), 2013] and the literature cited
therein.
245
determine, purely on the basis of affidavits submitted before it, what constitutes an essential or integral part and is thus worthy of constitutional protection. This self-appointed role of the courts as determinants of core or integral
aspects of religion has major flaws and has elicited scathing criticism from
both the Bar as well as the academia.27 Further, the courts have been inconsistently selective in their determination of what is an integral or essential part
of religion.28 Thus, it seems that conceptualization of the sacred relationship
with the land or the hills, within the rigid framework of essential practices, is
both undesirable and illustrative of the limits of the liberal constitutional logic
while interpreting the sacred. Even though the Court delegated the decision
to the Gram Sabha for the final determination of the case, the claim is still
understood on the register of modern liberal rationality. The Court failed to
realize that they were dealing with a different cosmology. A world which considers the hills as the abode of Niyam Kings and personifies nature in way that
it becomes integrally entrenched with the social is not practicing any religion.
But to the modern legal system, with its secular foundations, anything that
does not fit the epistemology of Cartesian rationality can only be translated in
terms of a religious claim. We understand that there is hardly anything that
the modern courts can do but does this not point to the limitations of modern
liberal rationality in dealing with the sacred? In this context Derrida’s formulation of justice becomes apposite as he remarks “I must speak in a language
that is not my own because that will be more just…it is more just to speak
language of the majority, especially when, through hospitality, it grants a foreigner the right to speak. It’s hard to say if the law we are referring to here is
… the law of the strongest, or the equitable law of democracy.”29
IV. C ONCLUSION
Throughout the essay we have maintained a sharp binary between
a ‘modern’ worldview, based on Eurocentric Cartesian rationality and its
mythic counterpart. Before the concluding remarks, something must be said
about maintaining this modern-mythic binary. Fitzpatrick in his classic work
Mythology of Modern Law deconstructs such a binary.30 He maintains that the
mythic and the modern cannot be understood in strict opposition. He points
out that the difference in the two conceptions lies in the former’s ideal of
27
28
29
30
See, Rajeev Dhavan & Fali Nariman, “The Supreme Court and Group Life: Religious
Freedom, Minority Groups and Disadvantaged Communities” in Supreme But Not Infallible
260 [B.N. Kirpal et al. (Eds.), 2000]; Ronojoy Sen, Articles of Faith (2010).
See, M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360, para 82. (The most infamous
and controversial aspect of such eclecticism was displayed when the Supreme Court held
that offering prayers in a mosque is not an essential part of Islam and “namaz (prayers) by
Muslims can be offered anywhere, even in the open”).
Jacques Derrida, The Force of Law: the “Mystical Foundation of Authority”, 11 Cardozo L.
Rev. 924-25 (1990).
Peter Fitzpatrick, The Mythology of Modern Law (1992).
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‘locating the origins in the sacred’31 and the latter’s view of situating antiquity in future modern social imagination. That is to say that the mythic worldview relies on sacred origins whereas the modern secular rationality inverts this
and positions the unknowable and sacred in the future. Fitzpatrick argues that
the narrative of ‘progress’ in the modern western and Eurocentric discourses
is itself a manifestation of the sacred in the future.32 Thus, the modern law
or rationality itself becomes a mythical category which does not necessarily
deny the sacred but reverts its positioning to some unknown and unknowable
future. In this context it is important to note that such conception can redraw
the boundaries of the conflicts outlined above. On this register, the conflict
becomes a tussle between two mythical life-worlds, one represented by modern industrial capitalism and the other reflected by the tribal mythological sensibility. This is of course a possible way to reimagine the entire controversy.
However, this paper deliberately maintains this binary because although this
binary is a false one, as ably illustrated by the work of Fitzpatrick, it exists in
the contemporary political discourse. The capitalist developmentalism is taken
for granted and is understood as the only reality. This is not just true for the
regime sponsored discourse of eternal developmental progress. It is equally true
for contemporary juridical imagination. How else do we understand the fact
that the entire judgment of the Supreme Court takes for granted and never
questions the discourse of ‘development’ through mining the forests? It is only
ready to question or consider the ill effects of the capitalist industrialization
and not its inherent logic. This is not the appropriate space to go into the issue
of whether this is due to the doctrine of separation of powers or the ideology
of hegemonic globalization. However, the paper merely points out why it is
necessary to maintain the distinction between the modern and the mythic for
a better understanding of the issue.
In conclusion, we must reiterate that the importance of the Niyamgiri
case lies on multiple levels. However, two distinct readings of the case are
foregrounded in this essay. At one level, the Court’s attempt to go beyond
its ‘modern’ self to understand the claims of the nomad, the tribal and the
forest dweller is worth celebrating. This is because the judgment expands the
contours of judicial interpretation to include various forms of diversities- biodiversity in understanding the relationship of these people with their ecology,
cosmological diversity by allowing the claims of different worldviews in their
own terms and epistemological diversities by being sensitive to the language and
logic of the tribals though they may not fit well within the validation of the
logic of modern law.
At another level, it remains a fact that the ‘sacred’ dimension or the
human-nature relationship of the tribals could only be formulated by the
31
32
Id., at 35.
Id., at 40-41.
247
Court in the limited and controversial paradigm of religious freedom and
essential practices. It is perhaps the only spectacle available for the Court,
rooted in the liberal framework of modern law, to visualize the mythic worldview of the tribals. In this sense the judgment as a precedent remains woefully inadequate and radiates the limits of the liberal frame of reference. This
is not to say that the decision becomes any less important due to its inherent
limitations. But it is only to suggest that any attempt to go beyond the logics of modern legal rationality must be self-conscious of the liberal paradigm
within which the modern law operates. An inclusive theory of justice embracing diverse epistemologies needs to question its own frame of reference in order
to avoid ‘legal deafness’ 33 towards the mythic or the seemingly irrational modern sensibilities. The judgment takes the first step towards that path of justice
but it needs to reflect on its limitations for marching ahead towards diverse
conceptions of justice.
33
I borrow the phrase from Peter Goodrich for its appropriateness in this context. See, Peter
Goodrich, Languages of Law : From Logics Of Memory To Nomadic Masks 179-186
(1990).
Law and the Obscene Image:
Reading Aveek Sarkar v.
State of West Bengal
—Latika Vashist*
This paper investigates the encounter of Law with aesthetics.
Grounding the analysis in psychoanalytic reading of law, the author
argues that the legal interpretation of an erotic image is marred by
interpretive violence in the contemporary judicial discourse, which
not only erases the image (by fixating a legally permissible meaning
on it) but eliminates any possibility of foregrounding the erotic subject
in Law. Erotic justice in so-called progressive cases is determined by
confining the image in permissible emotional categories (in this case,
heterosexual, marital love). This paper by analyzing a recent Supreme
Court decision attempts to show how the focus on the explanatory text
obliterates the aesthetic dimension of the image which may be saying
more than what Law can presently understand. This erasure constitutes a simultaneous erasure of the feminine in Law.
The genesis of modern Law is marked by a foundational violence, which
repeats itself in every act of legal interpretation.1 The institution of Law as the
ultimate language of rationality necessitates grammar of violent exclusion. The
formation of a unified, rational, legal self demands an erasure of multiplicity
of worldviews and ways of being, by characterising them as irrational and logically the ‘Other’ of Law. The long history of the paradigmatic separation of
Law from the non-Law is an account of Law’s struggle of claiming the domain
of Reason by the othering and marginalisation of primordial, mythical, emotional and artistic.2 The distinction of legal and non-legal is, thus, marked by
the articulation of Law’s Reason as significantly different from, and exclusive
to, all other forms of expressions and cosmologies.
*
1
2
Assistant Professor, The Indian Law Institute and PhD Candidate, Ambedkar University,
Delhi. The author is grateful to the reviewers of this paper for their comments.
Walter Benjamin, Critique of Violence, in Selected Writings, [M. Bullock & M.W.
Jennings, (Eds.), 1999].
See Peter Goodrich, Languages of Law: From logics of memory to nomadic masks
(1990).
LAW AND THE OBSCENE IMAGE
249
Law has come to be the primary actor in the project of European
modernity as it sieves out “the non-legal, the extraneous, the other- in particular the aesthetic, the beautiful and the image.”3 The genealogy of Law furnishes diverse accounts of the repressed and the hidden dimensions that form
and constitute, what Pierre Legendre and following him, Peter Goodrich calls,
“the unconscious of Law”.4 In this genealogical (and psychoanalytic) enquiry,
the image, emotions and the feminine emerge as the repressed parts of modern Law. In the event of unconscious spilling out, the rational self of Law is
disrupted. One such event is the encounter of Law with its other: aesthetics.
Law and aesthetics seem to be situated as polar oppositions as law claims to
be rooted in rationalistic thinking whereas art by definition transcends the
rational to be artistic. Thus, their confrontation with one another needs a
closer diagnosis. This brief comment is an instance of such an account of Law’s
encounter with aesthetics whether as an image or as a visual. (This also marks
the beginning of an affective interpretive exercise that jeopardises the site of
courtroom as the space of pure reason. Further, when the image is an erotic
image, especially a feminine erotic image, the affect unravels the desires and
erotics of Law itself. The question of Law and Aesthetics raises many other
sub-issues viz. how to understand the transformation of judges’ role from
interpreters of Law to critics of art or how to imagine a dialogue between the
two completely distinct disciplines of Law and Art?5
The Supreme Court of India in the recent case of Aveek Sarkar v. State
of W.B.6 was called upon to adjudicate on the criminality and obscenity of a
semi-nude image that had appeared in a magazine in 1993. According to the
Court, the contemporary moment of history demanded a change in the interpretive approach on the question of ‘obscene’ and thus, the court rejected the
“Hicklin test” in favour of the “community standard test”.7 One way to see
this move to the “community standard test” is to view it as symptomatic of the
progressive Indian judiciary8- an approach that traces the history of the notion
3
4
5
6
7
8
C. Douzinas & L. Nead, Law and the Image: The Authority of Art and the
Aesthetics of Law 4 (1999).
Law and the Unconscious: A Legendre Reader [Peter Goodrich (Ed.), 1997].
Alison Young, Judging the Image: Art, Value, Law (2005).
(2014) 4 SCC 257.
It may be noted that this case is not the first case in which this shift has been made. In K.A.
Abbas v. Union of India, (1970) 2 SCC 780, the Supreme Court observed: “Our standard must
be so framed that we are not reduced to a level where the protection of the least capable
and the most depraved amongst us determines what the morally healthy cannot view or read.
Therefore, it is not the elements of rape, leprosy, sexual immorality which should attract the
censor’s scissors but how the theme is handled by the producer.” The standard set in K.A.
Abbas has been followed by the Supreme Court in subsequent cases pertaining to obscenity.
Obscenity: The Supreme Court discards the Hicklin Test, Indian Constitutional Law &
Philosophy (7-2-2014), <http://indconlawphil.wordpress.com/2014/02/07/obscenity-the-supreme-court-discards-the-hicklin-test/>; Obscenity in today’s context, The Statesman, (15-52014), <http://www.thestatesman.net/news/54626-Obscenity-in-today-s-context.html>; Move
Over, Ranjit Udeshi: The SC on Obscenity, Glasnost (25-2-2014), <http://glasnostnludelhi.
wordpress.com/2014/02/25/move-over-ranjit-udeshi-the-sc-on-obscenity/>.
250
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of ‘obscene’ and the obscenity laws through a comprehensive, continuous and
linear trajectory- a teleological movement from past to the present, from conservative judgments to liberal and progressive decisions. However, the methodology adopted in this paper is different. Following Foucault, “History becomes
‘effective’ to the degree that it introduces discontinuity into our very being- as
it divides our emotions, dramatises our instincts, multiplies our body and sets
it against itself.”9A genealogical account of history deals with events in all their
discontinuities, complexities, multiplicities and messiness “and if it chances
upon lofty epochs, it is with suspicion- not vindictive but joyous- of finding a
barbarous and shameful confusion”.10 Thus, the author would not attempt to
situate this case within the frame of a discursive shift in the judicial interpretive approach. Instead, the underlying objective of this analysis is to unravel
the disarray and incoherence of Law’s regime of reason by examining the judicial “slips” in the narrative script of the present case.
I. SEEING
THE
I MAGE
THROUGH THE (CON)TEXT
The image under consideration was a photograph of the German tennis
player, Boris Becker with his fiancée, Barbara Feltus. The couple posed nude
for the camera which appeared on the cover page of a magazine in 1993 with
the caption, ‘love champions over hatred’. The moral sensibilities of a lawyer
were offended with this nude picture which led to the present case. The law
on obscenity (section 292 of the Indian Penal Code11) was invoked and the
judicial system was called upon to protect the morality and public order by
censuring the editors of the concerned magazine.
At the outset, the Court emphasised that the judging of the image
requires it to be viewed in a broader context. For the Court, appreciation of
the context meant setting the (provocative) visual or image against the (explanatory) speech or narrative to understand the meaning of the former. So the
Court examined the statements that appeared within the photograph. The
title of the cover story said: “Posing nude, dropping out of tournaments, battling racism in Germany. Boris Becker explains his recent approach to life- Boris
Becker Unmasked”. Further, excerpts of Becker’s interview which appeared in
the article were looked into by the court. One of his comments, which the
court scrutinised, is as follows: “the nude photos were supposed to shock; no doubt
9
10
11
Michel Foucault, Nietzsche, Genealogy, History, in The Foucault Reader 76 [Paul Rabinow
(Ed.), 1984].
Id., at 88.
As per Section 292 of the Indian Penal Code “a book, pamphlet, paper, writing, drawing,
painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more
distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to
deprave and corrupt persons, who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it.”
251
about it…What I am saying with these photos is that an inter-racial relationship is
okay”.
The Court found that posing nude for battling racism “is okay”, and
hence, the photograph is not obscene. Here it appears that the ascertainment
of obscenity or criminality of the image depended upon the speech or the
accompanying narrative text, ironically marking the erasure of the visual. The
impossibility of reading the image as an image is clear from the ‘context’ based
enquiry done by the Court. The Court had to rely on the accompanying words
that in turn explained the meaning of the image. It is not to say that the context is always only understood by some accompanying speech; for example in
the Bandit Queen case12, where the issue before the court was to adjudicate
upon the motion picture based on the life of rape victim turned dacoit, the
question of obscenity was evaluated in the overall context of Phoolan Devi’s
life history. The argument that the author attempts to foreground in this paper
is that the image is never seen or appreciated on its own terms by Law. This
impossibility is not on account of judges’ limitations in interpreting art-work
but, following Goodrich, due to Law’s fear of the image. This fear is rooted
in the fact of stark rationalistic foundations of modern Law which are premised on exclusion of the domain of anything that falls outside the domain of
Cartesian rationality including aesthetics.13 The image is necessarily relegated
to the periphery in an exercise to constitute the rational centre of modern
Law. Thus Law’s encounter with the image reminds it of its own self, its own
repressions and inconsistencies. The only way then to guarantee neutrality and
impartiality embodied in Justicia is by blindfolding and protecting it from the
seduction of the image.14
In the present case, in holding the image not obscene, and thus “not
guilty”, Law remained blindfolded to the image. The “photos were supposed
to shock” but the Court refused to appreciate the shock value of the image
by restricting and confining its interpretive focus to the accompanying text.
The Court therefore refused to see the erotic, sensual, and the sexual in the
image, all of which was obliterated under the textual logic. In other words,
the progressive interpretation of Law was founded on the annihilation of the
erotic image. It is important to note that the Court could not simultaneously
find the image erotic, sensual, sexual (and thus morally shocking), and yet not
legally obscene. Sex, desire and sensuality will always be obscene for Law and
Law would necessarily have to hide these erotic images. In these terms it is
12
13
14
The court observed: “It is the serious and sad story of a ... turning: a village-born female
becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and
brutality have affected her psyche so. The film levels an accusing finger at members of society
who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the
desire to revenge. It is in this light that the individual scenes have to be viewed.” Bobby Art
International v. Om Pal Singh Hoon, (1996) 4 SCC 1.
Supra note 2, at 179-184.
Lawrence Liang, Media’s Law: From Representation to Affect, 2(1) BioScope 23 (2011).
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important to recognise the impossibility of progressive interpretation within
the existing framework of Law. Legitimising erotic desire will always remain
outside Law’s own desire of sovereignty, order and compliance that is founded
on the repression of erotic desire.15
II. L AW ’S E MOTIONAL R EASONING
The judicial reasoning and the Court’s application of “community standard test” in this case requires a closer examination. Legal reasoning, inundated
as it is with ‘emotional slips’, betrays Law’s claim to pure reason. The Court
dropped the criminal charges because the message of the photograph was that
“the colour of skin matters little and love champions over colour.”16 Because the
photograph suggested inter-racial harmony and love, it had “no tendency to
deprave or corrupt the minds of people”.17 Further, the community could still
be tolerant towards this image because it did not have the tendency of “exciting lustful thoughts” since the “[b]reast of Barbara Feltus has been fully covered with the arm of Boris Becker”.18 The arm of fiancée covering bare breasts
was not obscene19 since it was a “love affair, leading to marriage, between a
white-skinned man and a black skinned woman.”20 Heterosexual love became
the chief marker in the discursive terrain, which erased sensuality, desire and
pleasure, even as the image got protection.
The completion of the heterosexual “community standard” was further
marked by the fact that the picture was “taken by none other than the father
of Barbara”. Reading the image within the harmony of heterosexual marital
union and the familial ideology21, the court brought it into the zone of permissibility, completely de-sexualised it, and stripped it of its actual intent of
“supposed to shock”. After all, what could be shocking about a woman posing
semi-nude with her husband-to-be, in the presence of and with the permission
15
16
17
18
19
20
21
For a psychoanalytic account of the repression of erotic desire and the emergence of legal
system see generally Jeanne L. Schroeder, Totem, Taboo and the Concept of Law: Myth in Hart
and Freud, 1(1) Wash. U. Juris. Rev. 139 (2009).
Supra note 6, at para 28 (emphasis supplied).
It is useful to recall here the observation made by Justice Muralidhar in Rahul Mookerji v.
State of NCT of Delhi (2-2-2009). Quashing the proceedings initiated against a couple u/s
294 IPC for kissing near a metro pillar, the Judge held: “the FIR even when taken on its face
value, does not make out a case for the offence under Section 294 read with Section 34 IPC.
It is inconceivable how, even if one were to take what is stated in the FIR to be true, the
expression of love by a young married couple, in the manner indicated in the FIR, would attract
the offence of obscenity and trigger the coercive process of the law” (emphasis supplied). It is
important to note that even this “progressive” decision of the court, confined the expression
of love within heterosexual marital bond.
For a comprehensive analysis of how the equality discourse of judiciary reinscribes women
into natural, familial roles, see Ratna Kapur, Women, Familial Ideology and the Constitution, in
Feminist Terrains in Legal Domains 61 [Ratna Kapur (Ed.), 1996].
253
of her father? This community standard is in consonance with debates around
obscenity in the early 19th century. While fashioning a new collective identity
for itself, Hindi literature redefined the ‘obscene’ figure to censor female sexuality and thereby created zones of sexual permissibility and proscription. As
Gupta notes:22
“The debate on obscenity was largely a debate on sex for pleasure and
recreation versus sex for reproduction. In the discourse of the nation,
non-reproductive and hedonistic sexual behaviour came under extraordinary pressure, resulting in the near exclusion of all non-reproductive
sexuality. Thus Kalidasa’s Kumarsambhav was considered ‘ legitimate’
in spite of its detailed erotic descriptions because the activities ultimately lead to the birth of a male child. As soon as sexual descriptions
celebrate desire and eroticism for their own sake, they become unacceptable and obscene.”
III. E R ASURE
OF THE
FEMININE
In the context of the obscenity discourse, postcolonial feminists have
been arguing that a totalising narrative of complete censorship of sexual
imagery would amount to reinforcing the dominant cultural norms and sexual
ideology that only recognises women in their roles of chaste wives and mothers.23 This is obviously not to suggest that sexual imagery which is sexist or
misogynist must not be condemned. But the point is that the first step towards
what may be called ‘erotic justice’ would begin with the recognition that sexual imagery (and sexual speech as free speech) is not always sexist or misogynist; it rather plays a significant role in challenging dominant sexual normative
framework. Any possibility of sexual imagery that acknowledges women’s sexual agency and promotes women’s sexual pleasure is also lost if all sexually
explicit representation is characterised as obscene.24
The feminist politics for positive representations of sex in this context is
a politics of affirmation of the “the specificity of feminine desire” within sexual
difference.25 Drucilla Cornell uses the expression “the feminine within sexual
difference” to challenge the dominant notion that collapses feminine sexual
difference to either femininity or subordination wherein women are either loving, caring, sacrificing givers or perpetual victims. Theoretical framework of
22
23
24
25
Charu Gupta, Sexuality, Obscenity, Community: Women, Muslims, and the Hindu
Public in Colonial India 46 (2005).
Ratna Kapur, The Prurient Postcolonial: The Legal Regulation of Sexual Speech, in The Phobic
and the Erotic (2007).
See also, Ratna Kapur, Who Draws the Line? Feminist Reflections on Speech and Censorship, 31
(16/17) Econ. & Pol. Wkly. WS15-WS19+WS21-WS3 (Apr. 20-27, 1996).
Drucilla Cornell, Transformations: Recollective Imagination and Sexual
Difference 113 (1993).
254
[Vol. 5 : Monsoon]
cultural feminists26 as well as dominance feminists27 construct women in, what
Luce Irigray has called, “the old dream of symmetry” i.e. what men fantasize
women want is actually what we want.28 Breaking away from these notions,
Cornell claims that “(t)he feminine has yet ‘to be’ in law, other than as a stereotypic conception of femininity”.29 In other words, feminine sexuality cannot
just be reduced to being “fuckees”30 since feminine sexual difference cannot be
coalesced with the “cultural trappings of femininity” or mere victimisation.31
Where does Aveek Sarkar 32 fit in this feminist terrain? As is evident, the
court in the present case did not censor the image. However, at the same time
it marked the erasure of the feminine subject, in as much as it made invisible
female sexuality. Can one miss the ‘interpretive violence’33 bound within such
‘jurispathic’ mode of judicial reasoning here? It must be emphasised that the
image got protection only because it neatly fit into the heteronormative framework. The image was within the bound of licit love entrenched within familial
ideology; a chaste wife covered by the arms of her husband, under the eyes
of her father. While the court did grant protection to the image and brought
it within the constitutionally protected free speech and expression, one is left
wondering whose freedom of expression is protected, and what is the nature of
that freedom?
To sum up, it would be apt to argue that this case illustrates that when
Law encounters its Other (the aesthetic, erotic, feminine) the pure reason of
Law gets corrupted by emotionality, its own unconscious spills over and legal
reasoning seeks to sustain itself through the juridicalisation of the acceptable
emotion: here, love (heterosexual, leading to marriage). The decision of ‘not
obscene’ in this case came along with the concomitant declaration of maintaining the status quo of dominant sexual normative order. The legal construction of obscene or not obscene remained discursively entangled with the
project of construction of legitimate emotions, acceptable relationships and the
good woman in the family. The white male body claiming the black woman’s
sexuality, the object of his love, as he also protects her from the voyeuristic
gaze of other men. The court’s emotional reasoning, its reliance on the notion
of “multicultural love” pronounces the image ‘not obscene’. Here, love emerged
26
27
28
29
30
31
32
33
Carol Gilligan, In a Different Voice: Psychological Theory and Women’s
Development (1982).
Catherine A. MacKinnon, Towards A Feminist Theory of the State (1989).
Id., at 114. (According to Cornell, this “yet to be” in law can emerge only when we can live
without “the shame of our sex”).
In MacKinnon’s analysis, “[t]o become a woman is to be a ‘fuckee’.” Drucilla Cornell,
Beyond Accommodation 133 (1999).
(2014) 4 SCC 257.
Robert Cover, Nomos and Narrative, in Narrative, Violence, and the Law: The Essays
of Robert Cover [Martha Minow (Ed.), 1995].
255
as “a sign of respectable femininity, and of maternal qualities narrated as the
capacity to touch and be touched by others”.34 In this version of love, the
reproduction of femininity is the work of love.35 Love is love within heterosexual family and the institution of marriage. It reproduces femininity but erases
the feminine. But can this love expand itself to include others, especially if
that other is the erotic feminine subject? This remains the unanswered feminist
question. Till we answer this question, Barbara Feltus is bound to be erased,
like the image, between her husband-to-be and her father.
34
35
Sara Ahmed, The Cultural Politics of Emotion (2004).
Id., at 124.
Book Review
Pursuing Elusive Justice: Mass
Crimes in India and Relevance
of International Standards
—Kalpana Kannabiran*
BOOK: Pursuing Elusive Justice: Mass Crimes in India and Relevance
of International Standards EDITORS: Vahida Nainar & Saumya Uma
YEAR: 2012 FORMAT: Hardcover PUBLISHER: Oxford University Press,
New Delhi PRICE: Rs 843
The volume under review focuses on the problem of impunity, tracing its
history from the Partition of 1947 to the present, across major episodes of state
violence, collective violence and mass crimes in India. Struggles for human
rights and civil liberties in the country over the past four decades, notably the
post-Emergency years have exposed time and again the multi-sited practice of
impunity by a state, purportedly democratic, that wilfully abdicates discipline
and negates the rule of law.
The period covered by the volume is also the period of economic liberalisation. Vandana Shiva in an early work, traces the violence in contemporary
Punjab to the “ecological and political demands of the Green Revolution as a
scientific experiment in development and agricultural transformation.” Despite
robust development indicators, and the “successes” of the Green Revolution
experiment, why did Punjab see 15,000 deaths in the decade of the 1980s,
linked to a militant movement fuelled by widespread discontent?1 Pritam Singh
in his recent book on Punjab extends this argument by tracing the roots of
Sikh revivalism and militancy to the fractures of the Green Revolution period
which triggered a Hindu-Sikh polarization and witnessed escalating violence
in inter-groups confrontations as well as confrontations with an increasingly
*
1
Professor and Director, Council for Social Development, Hyderabad.
Vandana Shiva, The Violence of the Green Revolution: Third World Agriculture,
Ecology and Politics 20 (1991).
PURSUING ELUSIVE JUSTICE
257
centralizing state.2 Positing an important argument that extends far beyond
an understanding of the situation in Punjab or to the Green Revolution alone,
Shiva raises a critical question of the relationship between science and society
where, “in contemporary times scientific activity has been assigned a privileged
epistemological position of being socially and politically neutral,” distancing itself from the new social and political problems it creates that are often
reduced to “unanticipated side effects” which are not disruptive to the sanctity
of the scientific endeavour. That this might in fact mean spiraling conflict, and
the rise of state impunity in quelling the conflict is nowhere more evident than
in Punjab. Importantly, what are the connections between economic liberalisation, rising militant conservatism, increase in mass crimes in India and the
entrenchment of the state of impunity?
To echo Upendra Baxi in his foreword to this volume, political immunity in the face of gruesome atrocities has a long history and knows no borders/nationality. Yet, “even as the combat against impunity may represent in
many a way ‘international community’s most conspicuous failure’, people’s
movements against impunity also signify a growth in collective moral sentiments” (Foreword, p. vii). This volume, edited by Vahida Nainar and Saumya
Uma testify to this growing collective moral sentiment. Unpacking the
tightly knotted terrain of impunity, the essays in this volume straddle practices of state violence with the guarantee of non prosecution – Punjab in the
1980s, Kashmir and the north eastern states; and situations of mass violence
where state complicity with dominant perpetrators is established. At a time
when forms of mass crimes and their sites proliferate without limit, and at a
time when the state is most visible in its abdicating incarnation, is ordinary
criminal law adequate for the criminal prosecution of torture, genocide and
crimes against humanity? Where there is a gap between domestic and international law, rather than resisting the application of international standards
using reductionist arguments of national sovereignty, Nainar suggests, it is
“imperative not only to fill the gaps in the Indian penal system but also to
demonstrate a legal ability to prevent and prosecute such violations nationally”
(Nainar, 13).
Central to an understanding of impunity is the delineation of the legal
concept of due diligence. Writing on this subject in the context of the reign
of terror unleashed by the Joint Special Task Force (JSTF) established by
the governments of Tamil Nadu and Karnataka to capture the forest brigand
Veerappan, Saumya Uma sets out four main components of due diligence on
the part of a state to protect individuals from derogation of their rights: “(a) to
prevent abuses, (b) to investigate them when they do occur; (c) to prosecute the
alleged perpetrator and bring the person to justice in fair proceedings; and (d)
2
Pritam Singh, Economy, Culture and Human Rights: Turbulence in Punjab, India
and Beyond (2010).
258
[Vol. 5 : Monsoon]
to ensure adequate reparation, including compensation and redress” (Uma, p.
38). While the illustration of due diligence with reference to the JSTF cases is
extremely important, it may be persuasively argued – and this volume provides
us with ample justification to do this – that the lack of due diligence is in
fact foundational to impunity. The challenge lies in strategies of human rights
advocates and movements to force a jurisprudence on due diligence that is the
jus cogens of human rights and constitutional law. Needless to say, whether
we look at the enforced disappearnaces in Punjab or Kashmir, or encounter killings in Andhra Pradesh, or the Armed Forces Special Powers Act, or
Chhattisgarh, Kandhamal, Gujarat, or the cases of atrocities against dalits,
the issue of state responsibility and prosecution of police and army personnel,
as also representatives of elected governments has been pushed into view by
human rights movements at enormous personal cost in terms of loss of lives
and liberty of advocates, activists and survivors.
The volume takes us through fields of impunity giving us eye opening
accounts that point to the pervasiveness of the problem. Targeted violence
(against dalits and sexual minorities) is one aspect that points to the disablement of protective legislation by courts and governments in the case of caste
(Maya Nair, pp. 60-96), and in the case of violence against sexual minorities
(Siddharth Narrain, pp. 97-133). The arguments presented by Narrain for
considering “persecution” as defined in the Rome Statute of the International
Criminal Court as a core aspect of targeted violence against sexual minorities
are important. Also, persecution as an experiential commonality between dalits and sexual minorities was brought home powerfully by the suggestion of
Delhi High Court in its 2009 judgement in Naz Foundation v. Govt. (NCT of
Delhi)3 that Article 15 of the Constitution of India be deployed to understand
the discrimination faced by sexual minorities.
Relevant to this discussion on targeted violence is Nainar’s essay on
torture by private actors (pp. 334-360). Detailing the torture and degrading
treatment inflicted on the women and children of the Bhotmange family in
Khairlanji, Nainar observes very pertinently, that “because there is no law on
torture, nor an understanding that torture can and is committed by private
actors the accused were not charged for torture. Despite noting severe injuries and the fact of stripping of Priyanka Bhotmange, the court held that it
was neither a case of outraging modesty nor a case of caste atrocity, but mere
revenge. While all cases of torture may not point to discrimination, a fact
to be reckoned with by a legislation on torture is “that members of certain
minority or marginalised groups are, as a result of their marginalization, at
greater risk of torture” (p. 353).
3
(2009) 160 DLT 277 : (2009) 111 DRJ 1.
PURSUING ELUSIVE JUSTICE
259
The final piece of the first aspect of the problem of impunity has to do
with tracing the continuities between various forms of collective violence and
“crimes against humanity” as defined by the Rome Statute. Vahida Nainar
unequivocally argues that “all situations of mass violence causing grave physical harm, death and destruction, regardless of whether they are caused by religious, sectarian, political, economic, social, cultural interests.... must be named
and prosecuted as [crimes against humanity]” (p. 393). Persecution, by this
argument, is a crime against humanity (p. 411).
The second aspect of the problem of impunity dealt with in this volume concerns coercive state action and impunity that arises in the context
of enforced disappearances (Shastri, pp. 134-163); illegal arrest and detention
(Uma, pp. 24-59); and severe punishments (Batra, pp. 164-201). Focussing on
capital punishment, Batra raises concerns about the ways in which the laws
prescribing mandatory death penalty in India violate standards of international
law and were legislated after India’s accession to the International Covenant on
Civil and Political Rights, 1979.
What then, is to be done? As a way forward, a cluster of essays in the
volume speak of the importance of law reform in the matter of gender based
crimes in episodes of mass violence; of integrating victims’ rights to protection, participation in legal proceedings and reparations in Indian law, and the
review of the military justice system in India focussing on the extent to which
military personnel may be prosecuted for violations contained in the Rome
Statute.
By helping us understand the textures of state and civil society -- their
tight intermeshing in entrenched practices of impunity -- and the toolkits
devised to combat this that are at once locally specific and internationally recognised, this volume consisting of thirteen essays, in Baxi’s words, “traces the
itineraries of social and human rights movements combating institutionalised
governance impunity” (p. xii). It points to a direction in which the cascading
idea of justice may cease to be utopian or sisyphean.
Book Review
India’s Rights Revolution: Has
It Worked for the Poor?
—Jackie Dugard*
BOOK: India’s Rights Revolution: Has it Worked for the Poor?
AUTHOR: S.K. Das YEAR: 2013 FORMAT: Hardcover EDITION: First
PUBLISHER: Oxford University Press PRICE: Rs. 795
India’s Rights Revolution is a welcome addition to the emerging scholarship on the evaluation of rights.1 It constitutes a very rich empirical analysis of
the enactment of four key pieces of legislation: the Right to Information Act,
2005, the National Rural Employment Guarantee Act, 2005, the Forest Rights
Act, 2006 and the Right to Education Act, 2009. The book is highly informative and provides an in-depth examination of social and economic data on the
implementation of these laws. It concludes that “rights have not really worked
for the poor”.2
Chapter One is a convenient overview of the main sets of literature and
concepts governing human rights discourse internationally, including summaries of the conceptions of Thomas Pogge, Onora O’Neill and Amartya Sen. It
also reviews the history of the development of international human rights from
the 1948 Universal Declaration of Human Rights (UDHR) to the debates
between the West and the Soviet Union over the primacy, respectively, of civil
and political rights versus social and economic rights, which gave rise to the
two main international human rights instruments in 1966 – the International
Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR). As useful as
these summaries are, it is not completely clear why this degree of overview
is necessary for the book’s analysis. As a result, Chapter One appears slightly
disjointed from the rest of the book. In addition, Das arguably overstates the
*
1
2
Associate Professor, School of Law, University of the Witwatersrand, Johannesburg.
See for example Courting Social Justice: Judicial Enforcement of Social and
Economic Rights in the Developing World [V. Gauri & D. Brinks (Eds.), 2010].
S.K. Das, India’s Rights Revolution: Has it worked for the poor? 303 (2013).
INDIA’S RIGHTS REVOLUTION: HAS IT WORKED FOR THE POOR?
261
claim that international rights do not assign precise obligations – what about
General Comments? Furthermore, there is a scant coverage of the machinery
of international (and regional) human rights law.
Chapter Two focuses on the Right to Information Act, 2005. Despite
over-segmentation of the chapter into numerous sub-headings, it provides a
compelling, contextualised account of the campaigns leading up to the enactment of this legislation, as well as clearly setting out the failure of the Act to
achieve its pro-poor potential. The chapter details a range of formal problems
with the Act, including the absence of stipulations about how regularly public information should be disseminated, who should be monitoring this and
what penalties exist in cases of non-dissemination. Das also highlights the
low awareness about the said Act, the non-availability of user-guides and the
unhelpful attitude of the Public Information Officers. As disappointing as
these failings are, they seem to relate more to shortcomings of the government
and its enforcement of the rights than rights per se. Indeed, I was left wondering whether the book should rather be entitled: ‘Does government work for
the poor?’- a question that was only reinforced across the subsequent chapters
of the book. On the specific question of whether the poor use the Act, Das
points out that the middle classes use the Act more than the poorer classes do.
However, a point that is obscured is that this does not mean that the poor do
not benefit, whether directly or indirectly, from middle class’ use of the Act.
Chapter Three focuses on the Rural Employment Guarantee Act, 2005.
It provides a valuable synthesis of data on unemployment, a useful description
of the background of the enactment of the Act, and a good critique of the
limited uptake of the government programmes put in place to give effect to
the Act. Again, the chapter outlines textual and implementation-related problems that, more than anything else, highlight shortcomings of government and
political processes. Some of the main problems identified include inadequate
monitoring, lack of awareness, fraud and malpractice.
Chapter Four focuses on the Forest Rights Act, 2006, providing a sobering critique of the failings of this Act to ensure tenure reform and security for
forest dwellers. As with the Right to Information Act and Rural Employment
Guarantee Act, there is a chronic lack of awareness about the Act among
affected communities, and the implementation of programmes has been mired
in red tape. Again, this seems to relate more to government failings than to
the limits of rights guaranteed by the Act per se.
Chapter Five focuses on the Right to Education Act, 2009, which is
perhaps the most prescriptive Act dealt with in the book, and yet it still fails
to cover some key areas such as minimum standards for students living with
disability and the educational requirements of children younger than six. In
addition, at the time the book was written implementation had not yet begun,
262
[Vol. 5 : Monsoon]
nor had there been any financial provisioning for free elementary education for
children between the ages of six to fourteen.
The book concludes by pointing out that the enactment of socio-economic rights-based legislation in India was a ‘political compulsion’ occasioned
by increasing income and employment inequality since 2003 and the need to
moderate the consequences of economic reform. The conclusion highlights that
a failure of genuine political will and resistance from the higher bureaucracy
has resulted in inadequate implementation of the legislation.
Notwithstanding the undoubted contribution of this book to students
and scholars of law and rights, the analytical focus – assessing the efficacy
of rights through the lens of the implementation of government programmes
introduced to give effect to rights – is overly instrumental and excludes much
of the impact and value of rights that exist in the realm of their ideational
influence and tactical relevance for civil society role players including social
movements and activists. The critique also fails to analyse the efficacy of
alternative modes of, or frameworks for, action including the political realm,
which, somewhat ironically, is the frame through which rights are found
wanting.
Thus, although the book provides a rich and authoritative synthesis of
data on the implementation (or lack thereof) of government programmes formulated to give effect to the various pieces of legislation covered, its lens is
ultimately incapable of throwing light on the question of whether rights work
for the poor. To answer this question properly, it is necessary to focus on the
groups/individuals that have sought to use rights to advance their struggles and
to assess the value and impacts of such entitlements to these groupings, both
in material and symbolic terms.
Book Review
The Informal Constitution: Unwritten
Criteria in Selecting Judges for
the Supreme Court of India
—Tasneem Deo*
BOOK: The Informal Constitution: Unwritten Criteria in Selecting
Judges for the Supreme Court of India AUTHOR: Abhinav
Chandrachud YEAR: 2014 FORMAT: Hardcover EDITION: First
PUBLISHER: Oxford University Press PRICE: Rs. 895
With the passing of the National Judicial Appointments Commission
Act of 2014,1 and the recent challenge to its constitutionality2, there is renewed
interest in, what may be called, the big secret of the Indian Judiciary appointments to the constitutional courts, that is, the Supreme Court of India
and the various state High Courts. While the debate on the desirability of an
independent commission for judicial appointments, and the criteria it should
use, is rich in its normative content, it suffers from a lack of clarity on the
actual practices of selection and appointment undertaken thus far. Abhinav
Chandrachud’s empirical analysis of appointments to the Supreme Court
between 1950 and 2009 provides this much needed clarity, specifically with
regard to the criteria for selection of judges to the Supreme Court of India.
The Constitution of India 1950, in Article 124(3), lays down the criteria
for appointment of a Supreme Court judge as follows:
*
1
2
Guest Faculty, National Law School of India University Bangalore. The author can be contacted at tasneemdeo@gmail.com.
The Constitution (Ninety Ninth) Amendment Act 2014 was enacted by the Parliament to
pave the way for the promulgation of the NJAC Act.
Petitions filed in SC challenging National Judicial Appointment Commissions Act and
Constitution 99th Amendment Act, LIVELAW (6-1-2015), <http://www.livelaw.in/ petitions-filed-sc-challenging-national-judicial-appointment-commissions-act-constitution99th-amendment-act/>, Validity of judicial appointment law challenged, The Times of India
(16-1-2015),
<http://timesofindia.indiatimes.com/city/kochi/Validity-of-judicialappointmentlaw-challenged/articleshow/45905288.cms>.
264
[Vol. 5 : Monsoon]
124. Establishment and constitution of Supreme Court
(3) A person shall not be qualified for appointment as a Judge of
the
Supreme Court unless he is a citizen of India and—
(a) has been for at least five years a Judge of a High Court or
of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court
or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Chandrachud argues that there is a distinction between this “formal eligibility criteria” and the criteria actually employed in selecting and
appointing judges to the Supreme Court (p. 7). On the basis of his study of
quantitative data pertaining to the 189 judges who have served on the Indian
Supreme Court between 1950 and 2009 and qualitative data collected through
semi-structured interviews with 29 former judges of the Supreme Court,
Chandrachud identifies three informal criteria:
“(a) a judge should be at least 55 years of age in order to be considered eligible to be appointed to the Supreme Court, (b) he
should be a senior High Court judge, or, especially over the last
20 years, the Chief Justice of a High Court, and (c) judges should
reflect the geographic (and demographic) diversity of India, that is,
judges are selected for the Supreme Court by taking into account
the state or region they belong to, and whether they belong to
non-traditional backgrounds, in terms of religion, caste, or gender.”
(p. 2).
The book begins with an introduction that outlines the central claim
and also lays out the research methodology. Chandrachud argues that “informal norms have seeped into the cracks of India’s written Constitution and
live in its shadows” (p. 7). To the extent that he sets out to not only identify unwritten criteria for appointment but also show their metamorphosis into
norms, Chandrachud takes on a heavy burden, one that is perhaps difficult to
discharge given the constraints of empirical analysis in an area of substantial
data vacuum.
Building upon the work of Rajeev Dhavan3 and G. H. Gadbois4,
Chandrachud uses both official and non-official sources to construct por3
4
Rajeev Dhavan, The Supreme Court of India: A Socio-legal Critique of its Juristic
Techniques (1977); Rajeev Dhavan & Alice Jacob, Selection and Appointment of
Supreme Court Judges: A Case Study (1978).
George H. Gadbois Jr., Judges of the Supreme Court of India: 1950-1989 (2011);
George H. Gadbois Jr., Indian Judicial Behavior, 5(3/5) Econ. & Pol. Wkly. 149 (1970).
THE INFORMAL CONSTITUTION
265
traits of the judges who have served on the Supreme Court, thus creating a
repository of quantitative data relating to possible criteria for appointment.
Thereafter, he uses tests of statistical significance for analysis, and identification
of trends. The qualitative data from interviews is used primarily to draw conclusions from the statistical findings by outlining the motivations underlying
changes in the criteria.
The data collection exercise undertaken by Chandrachud is extensive
and he describes the same in detail in the Introduction. However, insofar as
he hopes that this work will serve as a “foundation for [future] quantitative
studies”, it would have been useful to have a clear description of the research
design, including an outline of the operationalization of explanatory and
response variables, and control variables. Further, while he acknowledges the
limitations to data collection, readers would have benefitted from a brief discussion of the implications that this might have for data analysis and the subsequent substantiation of empirical claims.
Chapter One serves to contexualise the empirical analysis through an
elaboration of the historical background of the Supreme Court of India. Two
aspects are particularly noteworthy. First, Chandrachud makes extensive reference to the deliberations surrounding the establishment of the Supreme Court
and its predecessor of sorts, the Federal Court. He thus succeeds in highlighting the aspirations and anxieties that guided decisions regarding procedure for
selection of judges, qualification for appointment, and tenure. For example, he
points out that the retirement age gap between the High Court and Supreme
Court is explained by the need to incentivise judges from the former, to take
up posts in the latter (pp. 36-38). In a sense these deliberations serve as additional data that can be used to explain the significance of changes in criteria
over time.
Second, brief biographies of the judges who served on the Federal Court
have been included, and an attempt is made to identify the basis upon which
these judges were appointed. This is important as brings into sharp focus
the discretion and resultant indeterminacy that has characterised the issue
of appointment from the very beginning. It goes to show that in light of the
inadequate guidance provided by the written criteria, the practice of supplementing the same through the creation of “unwritten” criteria is certainly not a
new phenomenon.
Any analysis of the practice of appointing Supreme Court judges would
be incomplete without an elaboration of the three Judges Cases.5 By fundamentally altering the process of selection of judges and making it the sole pre5
S.P. Gupta v. President of India, 1981 Supp SCC 87 (First Judges case); Supreme Court
Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441 (Second Judges case); Special
Reference No. 1 of 1998, In re, (1998) 7 SCC 739.
266
[Vol. 5 : Monsoon]
rogative of the Judiciary, more specifically of the collegium of Supreme Court
judges headed by the Chief Justice of India, these Cases represent a break
in the scheme of appointments to the Supreme Court. The Cases are hence
important not only from a normative lens but also from a methodological
point of view. First, they simplify the process of identification of criteria. By
placing appointments firmly within the judicial realm, the confusion created
by the often contradictory objectives of the Executive and Judiciary is avoided.
An analyst can therefore make out trends and identify their underlying motivations more clearly, especially if he has access to qualitative data in the form
of opinions of judges who were members of the collegium. Second, it problematizes the drawing of conclusions across the entire period of the Court’s
existence. As the motivations across organs of the state vary, and the Executive
could override the Judicial recommendation, consolidation of patterns across
appointments made before and after the Cases may create false positives or
false negatives and thereby overstate the conclusion.
Chandrachud’s discussion of the three Judges Cases in Chapter Two
encourages the reader to engage with the aforementioned issues. He provides
an informative and critical narrative of the Cases and also traces the political
developments that led to the present collegium system of appointing judges –
the tussle between the Executive and Judiciary vis-à-vis violation of the seniority norm to check activist judges, and the role of a weak centre in facilitating
the ultimate usurpation of the power of appointment by the Judiciary. The
Chapter also highlights the theme of judicial independence as the core motivation for establishing the collegium system of appointment by adopting the
arguably questionable interpretation of the Constitution, which resulted in
effectively reading consultation as “concurrence” (pp. 124, 130). This theme is
relevant because it has also been used to justify the continuing lack of transparency and accountability in making appointments to the Court. By perpetuating secrecy in the selection process, judicial independence is at the root of
both, the central thesis of the book, and the challenges to this thesis’ empirical
substantiation.
Chapters Three to Five contain the substance of the book. Chandrachud
dedicates a chapter each to the three “unwritten criteria” of age, seniority, and
diversity. The chapters are organised as follows: first, a brief overview of the
debate surrounding the desirability of the criterion, through a comparative
constitutional law lens; second, a narration of the qualitative study; third, a
detailed statistical analysis of the quantitative data; and finally, an extrapolation of conclusions from the findings which include the identification of
trends, their possible underlying reasons, and consequences.
Chapter Three deals with the criterion of age. Chandrachud notes that
despite the fact that age related eligibility under the Constitution is 33 years,
the age of appointment has steadily increased over the years from an average
267
of 57.67 years in the Court’s first decade to an average of 59.7 years in the
2000s. Most appointees to the court fall in the age group of 58 to 62 years.
In light of the retirement age of 65, this increase in the age of appointment
has had the important consequence of substantially reducing the tenure of
Supreme Court judges such that the average tenure is 1.63 years (pp. 167-168,
171-172). Chandrachud has analysed the age curve by breaking up the years of
the Court into political eras: Nehru, post Nehru, Indira Gandhi, Janata party
interregnum, Indira Gandhi’s return, Rajiv Gandhi, post Rajiv Gandhi, and,
finally, post Second Judges cases (pp. 173, 176). Special attention is drawn to
the statistically significant differences in appointment age pre and post the
Second Judges Case (p. 177). Categorisation on the basis of political eras is
useful as it traces alterations in the relationship between the Judiciary and
Executive, and subsequent changes in the guiding objective of the two organs.
It also fits well with changes in the mode of appointment, and hence is crucial
to appropriately delimiting trends in the data.
On the basis of the qualitative data, Chandrachud notes that the trend
of appointing judges who are older is the result of greater emphasis on maturity and experience. While this is quite clear from the discussion of the data, it
is his explanation of the significant change in criteria post the Second Judges
Case that is worthy of note. Referring to the link between tenure length and
the strength of influence of a judge within an independent institutional setting, Chandrachud hypothesises that it was a conscious decision of the collegium to appoint older judges in order to reduce the tenure length and hence
offset the influence of the judiciary, making it “more palatable” for political
actors (p. 150). To substantiate his claim, he refers to another visible trend the increase in the size of the Supreme Court and the concomitant practice
of sitting in benches of two. This too, he argues, is an exercise in ensuring
judicial independence through political appeasement. In the final analysis,
therefore, Chandrachud finds that the length of tenure is central to judicial
independence and democratic legitimacy.
This analysis of alterations in appointment criteria as a means of “diffusing the political strength of the judges” (p. 162) is not readily borne out by the
data and the statistical findings as they have been reported. Perhaps all that is
needed is more detailed reporting of the data, including quantification of the
information received through the interviews. This would serve to enlighten the
reader as to the views of the judges on the topic. Additionally, further analysis of the combined effect of age of appointment, retirement age, tenure, size
of the court, bench strength, and measures of activism using proxies such as
number of judgments invalidating governmental action for example, may have
provided greater insight into this issue. That said, given the increase in the
influence of the Court in recent years and the democratic deficit critique, the
claim of exercising judicial restraint through regulation of appointment age
and tenure, is provocative and certainly worthy of extended exploration.
268
[Vol. 5 : Monsoon]
In Chapter Four, Chandrachud analyses the informal criterion of seniority. He finds that the criterion of seniority, as an indicator of the suitability
of a candidate for appointment, prioritises judicial experience as measured in
terms of the length of the tenure served on a high court and, more importantly, the position occupied therein. While the Constitution permits the
appointment of lawyers and legal scholars to the Supreme Court, an overwhelming 97.9% of the judges appointed to the Supreme Court had prior judicial experience (p. 185). During the 2000s 88% of those appointed were high
court chief justices (p. 193). Given the importance afforded to the criterion of
seniority historically, this finding is not surprising but Chandrachud’s statistical analysis exposes the rigidity with which the criterion is adhered to and the
significance of any exceptions made.
There was a sharp increase in the proportion of the Supreme Court
judges who were high court judges in the 1980s and the proportion has steadily increased since then. The same trend is seen with regard to the mean years
these judges have served on the high court prior to elevation to the Supreme
Court. In the 2000s this was between 13 and 14 years. Chandrachud finds
that there has been a statistically significant rise in the mean number of high
court chief justices appointed to the Supreme Court post the Second Judges
Case. He concludes by observing that the post of the high court chief justice
has been “reduced to a stepping stone to get to the Supreme Court” (pp. 193194, 199).
Given that there are several alternate explanations for what seems to
be an over reliance on the criterion of seniority, the discussion of the historic
importance of the norm proves useful. Nonetheless multivariate analysis controlling for the effect of the age criterion, and an increase in the judicial pool
from within which appointments can more easily be made could help in drawing more robust conclusions by isolating effects. Here as well, reporting of the
findings of the qualitative interviews through tables and graphs would have
given the reader a deeper insight into the views of the judges themselves.
Chandrachud argues that strict adherence to the seniority criterion
comes at the cost of a robust tenure at the Supreme Court, and career diversity. This latter point is an important one, specifically in light of the recent
appointment of two senior advocates to the Supreme Court.6 Such an appointment has been made only four times in the past. Chandrachud notes that
lawyers have historically turned down offers of appointment, which has contributed to the career homogeneity on the Supreme Court bench (p. 205). This
creates some difficulty. In the absence of data on offers made to non-judges for
appointment, it is impossible to make a strong claim regarding the extent of
adherence to the practice of appointing only senior high court judges to the
6
Hon’ble Mr. R.F. Nariman and Hon’ble Mr. Uday Umesh Lalit, who were senior advocates,
have been appointed as Judges of the Supreme Court as of July and August 2014 respectively.
<http://supremecourtofindia.nic.in/judges/judges.htm>.
269
Supreme Court. While some anecdotal evidence is reported which suggests
that only few such offers were made, greater clarity is needed. Perhaps qualitative data relating to the experiences of senior members of the bar would be
helpful in unpacking this issue further.
Chandrachud’s challenge to the fairness of the application of the criterion, and his study of exceptions to the seniority norm, such as diversity, serve
to give greater depth to the understanding of the collegium’s decision making
process.
Chapter Five deals with the criterion of diversity. Chandrachud identifies
four kinds of diversity: geographic; religious minority communities; backward
castes; and gender (pp. 215-219).
Chandrachud seeks to test the geographic diversity of the appointees in light of the political significance of the state, and the workload of its
high court, both of which are found to be statistically associated with each
other. The former is measured through the size of the state and the share of
seats in the Council of States and House of the People. The latter is measured
through the proxy of total sanctioned strength of the state’s high court (pp.
241-243). The data shows that the Supreme Court has become more inclusive
over the years and this has been facilitated, in part, by the increase in the size
of the court (p. 246). However, certain high courts remain over-represented.
Chandrachud notes that judges of the busier high courts are considered more
attractive as candidates (pp. 250-251).
The analysis on geographic diversity brings to the fore two aspects of
particular note. First, the collegium adjudges geographic diversity on the basis
of the high court where the judge last served and not on the basis of ethnicity,
place of birth, or native language (p. 216). This seems to suggest that instead
of ensuring representation of geographic areas or states, the appointment process seeks to ensure representation of high courts. This might explain the finding of statistical correlation between appointments and busier courts, and also
the absence of correlation between appointments and populated or politically
relevant states. Second, a comparison of the number of appointments and also
the length of the tenure of the appointees from different high courts exposes
a variation in the mean age and also mean tenure across states (pp. 252, 253).
This shows that the criterion of geographic diversity acts as a limiting factor on
the criteria of age and seniority.
While the presence of a norm for geographic diversity can be made out
to some extent from the data, the presence of a norm vis-à-vis the other diversity indicators is not quite as clear. Keeping in mind the seemingly haphazard
selection with regard to religion, caste, and gender, one wonders if the appointment of persons belonging to non-traditional backgrounds is not so much a
policy decision as it is a necessary after-thought at a time when minorities are
270
[Vol. 5 : Monsoon]
increasingly vocal about the need for greater representation. This is certainly
true for religious diversity and gender diversity wherein representation falls far
short of the population share within the country (p. 261). In this regard, the
small sample size and the dearth of official data serve as limitations to more
robust analysis. This is especially so with regard to caste status, wherein it
would have been useful to disaggregate the data beyond the binary of forward
and backward castes. Data limitations also restrict an enquiry into the interaction among the indicators of diversity, and their effect on the other two criteria
of age and seniority.
Chandrachud laments that the diversity in the Court is “more symbolic
than substantive” (p. 262). While this has been a recurrent criticism of the
appointment process, the fact that it is borne out by the data helps strengthen
the case for greater attention to be paid to the issue of diversity in the Supreme
Court.
The book concludes by locating the central thesis within the larger scholarship on the creation of informal norms.
On the whole, Chandrachud successfully identifies certain trends in the
appointment of judges to the Supreme Court of India by highlighting the age,
seniority, and diversity related characteristics of those who have served on the
Court. However, the analysis suffers on account of two factors. First, there
is insufficient theoretical exploration of the process through which unwritten
criteria, which serve as a guide to decision making, get converted into informal norms, which are, in essence, limits on decision-making. This is especially
problematic in light of variation in the data, which may not be explained away
as exceptions. Second, given the data vacuum in the area, which prevents
analysis using a control group, it is not possible to eliminate, to the extent
required, alternate explanations for the trends identified. Hence it is difficult to
draw meaningful causal claims that would allow us to conclude that the trends
in the data are in fact evidence of the creation of norms.
Despite the handicap of limited data, Chandrachud’s work goes a long
way in drawing attention to the ability of institutions to build upon, and practically alter, norms that are democratically entrenched. His nuanced treatment
of the historical material and narration of the statistical findings bring to the
fore the role that competing Executive and Judicial objectives can play in this
process of norm creation. At a time when India is debating the establishment
of a commission for judicial appointments, these are important considerations
to keep in mind.
The Informal Constitution is a significant contribution to the scholarship
not in the least because of the extensive data it usefully catalogues, but also
because of the framework it seeks to provide for critical reflection upon the
same.
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