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Erratic justice?

No institution of the state should remain unchecked. In past decades, the Indian judiciary has become known for sometimes ruling in favour of citizens against government authorities. However, it is being discussed whether the courts themselves are out of control. Hans Dembowski, the editor of D+C/E+Z, recently gained some new insights into this debate. [ By Hans Dembowski ]

In January, I attended the Inaugural Conference of the Law and Social Sciences Research Network at Delhi’s Jawaharlal Nehru University. It is unusual to be invited to present a ten-year-old PhD thesis at an international conference. I was thrilled to finally discuss my controversial book “Taking the State to Court”, an empirical study of cases of public-interest litigation (PIL) dealing with the urban environment of Calcutta, in the country concerned.

PIL is about citizens taking state agencies to court and demanding that they perform their duties. The understanding of this juristic phenomenon in India has, of course, become more elaborate than what I wrote, but much of it remains consistent with my findings.

Ten years ago, several law experts told me that my discomfort with erratic PIL proceedings stemmed from the fact that I was unacquainted with Anglo-Saxon law. So it was some relief to me to hear a seminar room full of scholars discuss the impression that PIL has spawned a new form of litigation which only rarely leads to conclusive judgments, but continues interminably with interim orders, resulting in administrative powers being substantially taken over by the courts. One result, of course, is incoherence of judicial interventions.

In these and other ways, one participant, who does not want to be named, argued that the extreme malleability of procedure in PIL led sometimes to violations of basic norms of natural justice as affected parties, especially the urban poor, were not even given notice or represented in proceedings impinging on their fate. All summed up, it was evident that PIL was lacking the strict procedures that would guarantee transparency and regularity.

At the same time, Vasudha N. of the non-governmental Anveshi initiative in Hyderabad warned against dismissing PIL as irrelevant to poor people. In many cases, she argued, a stay order from a court is what saves a squatter settlement from eviction, and to the people concerned, that is what matters most. Against this backdrop, it is hardly surprising, that Varun Gauri, a researcher with the World Bank, demanded that more empirical research be done to find out whether recent PIL rulings were biased against India’s poor. So far, he argued, “most accounts do not review PIL in a systematic way, perhaps because of the challenge of identifying what counts as a PIL case”.

Such statements mark a shift in the academic debate. The focus is on empirical results rather than on a preconceived agenda for PIL. In the 1990s, there was only very little social-science literature on PIL. In view of Indian society’s deep divides, some left-leaning jurists were arguing that PIL could and should pursue an agenda of social transformation, empowering the poor. At the same time, it was being debated by politicians, general-interest media and scholars whether the courts were overstepping their jurisdiction by getting involved in the affairs of elected governments.

Not above the law

As government action in India is too often neither rule-bound nor law-based, it undeniably makes sense for the courts to put a check on the administrative branch. PIL serves to spell out that no body and no institution is above the law. That is something the progressive jurists had stressed early on, and, in itself, it can help to promote the interests of disadvantaged strata of society. However, I was never convinced that it adds up to a mandate for social transformation.

At the LASSnet conference, Arun K. Thiruvengadam of the National University of Singapore similarly advised against “saddling the judiciary with undeliverable – and, in some cases, erroneous – expectations”. In his view, progressive people should not conceptualise the courts as forces of social change, but rather as “facilitators” that can orchestrate interaction of citizens and various interest groups with government agencies. Ten years ago, I had written that courts were providing a “rudimentary public sphere” for citizens to stake reasoned claims against government bodies.

My book was based on my PhD thesis in sociology at Bielefeld University in 1999. Its fate was unusual. Oxford University Press published it in January 2001, but discontinued international distribution soon after due to an order by the Calcutta High Court. Judges had started contempt-of-court proceedings against myself, the publisher and several other parties. The case has been pending since. Apparently, the judges lost interest in the matter, and only few libraries have the book. In 2006, an online-version was posted on the website of Asienhaus, a non-governmental organisation in Germany. In Delhi I discovered that scholars with a specific interest in PIL tend to know my work, whereas most others do not even seem to have heard of the case.

As I was never notified by the High Court myself, I do not know what exactly bothered the judges. Perhaps they reacted to my account of corruption rumours that were wide-spread in the legal community, but also quite well documented in Indian news media. They may also have been uncomfortable with other points I raised. For instance, I argued that some decisions seemed – at least to the continental European observer – to be taken in an ad-hoc manner without much legal or scientific base and that erratic proceedings did not serve the courts’ credibility. It is also possible that they did not want to have their role discussed in sociological terms such as “public sphere”.

Nonetheless, my overall assessment of the judiciary had been overwhelmingly positive. I argued that through PIL the judges were contributing to better governance in the Calcutta area. Indeed, the Calcutta High Court and the Supreme Court of India had been making government agencies, which had so far operated beyond public scrutiny, responsible in the very literal sense of making them respond to queries and demands from civil society. Moreover, their rulings had an impact on the urban environment.

In the meantime, Indian courts continue to hear PIL cases and put checks on the administrative branch of government. The judges have an opportunity to improve governance and it would be a pity if they squandered it by making erratic decisions. Contemplating my book’s fate and the views expressed at the conference in Delhi in January, however, I am less optimistic about court action in India now than I was ten years ago.

On the other hand, there is hope that the Delhi-based, non-governmental Campaign for Judicial Accountability and Judicial Reforms can make a difference. Law and society are, of course, interrelated phenomena; and in any democracy, all institutions need to be monitored – including the law courts.