A forthcoming article, to be published in the Volume 5 (Monsoon) issue of JILS, was discussed by Mr. Salil Tripathi (Contributing Editor at LiveMint and The Caravan Magazine) at the Jaipur Literature Festival. The article, penned by Ms. Shruti Rajagopalan (Assistant Professor in Economics at Purchase College, State University of New York), is entitled “Bhopal Gas Tragedy: Paternalism and Filicide”.
Video: “Toxic Legacy: The Bhopal Gas Tragedy” [see at 13:00]
by Kshitij Maheshwari
The bifurcation of the State of Andhra Pradesh into Andhra Pradesh and Telangana happened in an unprecedented manner. When the states of Chhattisgarh, Jharkhand and Uttarakhand were created, the assemblies of Madhya Pradesh, Bihar and UP respectively had passed resolutions recommending the creation of these states. This process was not followed in this case as the Bill which was sent by the President to the Andhra Assembly for discussion was rejected by a majority voice vote in the Assembly and sent back. However, this was not reciprocated by the Central Government which proceeded with introducing it in the Parliament. It was also argued by the Government that the process that had been adopted in the earlier instances was not mandatory under the Constitution. As a result key perspectives in the form of significant objections by Telangana leaders to the role of the Governor post division, amongst many other things went unrepresented.
The history of bifurcation of Andhra Pradesh continues to be plagued by events even after its division. After the separation from Andhra Pradesh and subsequent creation of the State of Telangana on June 2, 2014 in exercise of the powers conferred by the Andhra Pradesh Reorganization Act, 2014, (‘Act’) growing discontent led to filing of a petition challenging the constitutional validity of this decision before the Andhra Pradesh High Court. More recently the political turmoil intensified when there was a confrontation between the Governments at the Centre and in the State when the Telangana Chief Minister refused to vest charge of law and order of the capital city of Hyderabad to the Governor. Under the provisions of the Act, Hyderabad will remain the capital of both Andhra Pradesh and Telangana for not more than 10 years after which it will be retained by Telangana while Andhra Pradesh will have a new capital.[1] It is important to note that as per Section 7 of the Act, the Governor of the existing State of Andhra Pradesh will be the common Governor for the successor States of Andhra Pradesh and Telangana for a tenure that will be determined by the President.
It would not be correct to say that the Central Government was at fault in demanding the handing of law and order to the Governor as it derives this authority from Section 8 of the Act. The marginal note to Section 8 reads “Responsibility of the Governor to protect residents of common capital of Hyderabad.” This section confers on the common Governor of both the states special responsibilities for the security of life, liberty and property and endows responsibility in matters such as law and order, internal security and management in the common capital area. The Governor must discharge these functions after consulting the Council of Ministers of Telangana but can exercise his individual discretion if any uncertainty as to the matter arises such that the Governor is required to act in the exercise of his individual judgment. In such cases, the Governor’s discretion will be final and the validity of anything done by the Governor shall not be called in question on the same ground. Moreover it appears that such powers will be vested in the Governor only as long as Hyderabad remains the common capital for both the States i.e. for a period of 10 years as the marginal note uses the phrase “common capital of Hyderabad”.
The opponents and particularly the ruling and other regional parties in Telangana have questioned the constitutionality of Section 8. Entry 1 under List II (State List) of the Seventh Schedule to the Constitution of India, 1950 (‘Constitution’) deals with the subject matter “Public Order”. Section 8(1) and (2) on the other hand mention security of life, liberty and property and law and order, internal security, etc. respectively and not public order. The terms “Public Order” and “Law and Order” are not the same. In Ram Manohar Lohia v. State of Bihar[2], the Supreme Court has referred to them as concentric circles wherein law and order is the largest one followed by public order and subsequently security of the State. Therefore an action may affect law and order but not public order and similarly another which affects public order may not affect security of the State. It was held that maintenance of law and order may mean preventing disorder of relatively lesser gravity and of local significance only. For instance if there is a free fight between a group of drunkards on the street, it is merely a situation of “Law and Order” as there is no apprehension of disruption of peace and tranquillity. On the other hand for instance when there is communal tension followed by an attack on members of a particular community, it would give rise to a “Public Order” situation as it disrupts the peace and tranquillity and the life of communities in a locality.[3] In other words “Law and Order” is a wider term which includes “Public Order”. This has broader implications as the inclusion of “Law and Order” in the Act takes the maintenance of the “Public Order” beyond the realm of the State Government, since the latter which is granted by the State List of the Constitution has narrow connotations compared to the term “Law and Order”.
One must be mindful of the fact that Section 8 of the Andhra Pradesh Reorganisation Act is not the first of its kind to be enacted in India. It echoes some existing constitutional provisions as well. Articles 371A (1)(b) and 371H (a) of the Constitution were instituted respectively by the 13th and the 55th Amendment of the Constitution and though the inclusion of a provision like Section 8 in the Act seems to have drawn inspiration from them, the Law Ministry has denied the same. Article 371A(1)(b) confers upon the Governor of Nagaland special responsibility with respect to law and order in the State so long as the Naga Hills-Tuensang Area continues to be ‘disturbed’. It further gives the Governor discretionary powers which will override his consultation with the Council of Ministers, and shall be final and not be called into question as also is provided for in Section 8 of the Act. Article 371H (a) entitles the Governor of Arunachal Pradesh with similar discretionary powers. The Central Government however has rejected the similarity by saying that the 55th Amendment was a result of the conferment of statehood on Arunachal from its existing Union Territory status and such circumstances did not exist with regard to Andhra Pradesh as it did not have a “sensitive location and constitutional history”. The provisions for the two North-Eastern states suggest that conferment of similar powers to the Telangana Governor with respect to Hyderabad must require a similar Constitutional Amendment. The formation of Telangana was not a peaceful one. Violent protests and clashes particularly in the capital city of Hyderabad have preceded the bifurcation of the two States which would imply that the place does have a ‘sensitive’ history. Therefore a lack of reasoning can be seen on the part of the Legislature as to why Law and Order was in the first place handed over to the Governor if there was no threat to peace and tranquillity in the capital city. And if the threat did exist, why was the process of a Constitutional Amendment bypassed and the term “Law and Order” inserted directly in the Act?
Hyderabad is not the only city which is the common capital of two states. The reorganisation of the former State of Punjab (formerly State of PEPSU) into Punjab, Haryana and Himachal Pradesh in 1966 led to the common capital of Punjab and Haryana being Chandigarh. But Chandigarh was also made a Union Territory by The Punjab Reorganisation Act, 1966 from the day of formation of both the states.[4] Thus the administration and law and order situation of the capital became the responsibility of the Union Government as per Articles 239-241 of the Constitution.[5] If Hyderabad was made a Union Territory, the subject of Law and Order would not have been a complication as the same would have squarely fallen in the domain of legislative competence of the Union Government. However while clearing the Reorganisation Bill, the Union Cabinet rejected this demand and Hyderabad was not made a Union Territory.
What must also be considered is the fact that “Public Order” is not just a subject in the State List but maintenance of “Public Order” is also a subject in the Concurrent List. The question that therefore needs to be asked is whether the Parliament can make laws which fall in the State List. In Naga People’s case,[6] the Supreme Court observed that while determining the legislative competence of Parliament to make a law, it is required to be seen whether the subject matter falls in the State List which the Parliament cannot enter. If the subject matter does not fall in the State List, the Parliament would have legislative competence to pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the Union List and there would be no need to go into the question whether it falls under any entry in the Union List or the Concurrent List. But the subject matter i.e. “Public Order” does fall in the State List and there would be no need to go into the other lists. The Parliament can therefore not make a law on the State Subject of “Public Order”. The expression “public order” has been described as “a most comprehensive term” and it has been held that the “maintenance of public order within a province is primarily the concern of that province”.[7]
The process of inclusion of “Law and Order” in the Act and accordance of powers of its maintenance to the Governor raises the question of constitutionality even if this has to be the situation for only the next 10 years. It does on the face of it seem to be unconstitutional. But the final outcome of this conflict between the State and the Centre is yet to be seen.
(Kshitij Maheswari is a Research Assistant at the Journal of Indian Law and Society)
[1] § 5 of The Andhra Pradesh Reorganisation Act, 2014
[2] Ram Manohar Lohia v. State of Bihar 1966 AIR 740
[3] Arun Ghosh v. State Of West Bengal (1970) 1 SCC 98
[4] § 4 of The Punjab Reorganisation Act, 1966
[5] “Union Territory Division.” Ministry of Home Affairs. Accessed January 4, 2015. http://mha.nic.in/Union_Territory_Division.
[6] Naga People’s Movement of Human Rights v. Union of India 1998 2 SCC 109
[7] Lakhi Narayan Das v. Province of Bihar A.I.R. 1950 SC 59
The latest issue of the Journal of Indian Law and Society (JILS), Volume 5 (Winter), was released by the Honourable Minister of Law, Judicial Affairs and Health, Chandrima Bhattacharya in the presence of Justice Altamas Kabir (former Chief Justice of India), Prof. Marc Galanter (Emeritus Professor of Law, University of Wisconsin-Madison), Krishnan Venugopal, Senior Advocate, and Prof. Ishwara Bhat, Vice Chancellor of NUJS and Editor-in-Chief of JILS, on the occasion of the 2nd MK Nambyar Memorial Lecture. Following is the Foreword of the Issue, with hyperlinks to the respective articles. For the full issue (including the Editorial Note), see here.
The past year has been a watershed year for gender justice. The passage of the Criminal Law (Amendment) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 have been positively received by the public. On the other hand, the regressive verdict in Suresh Koushal v Naz Foundation (2014 (1) SCC 1) (‘Naz-2′) was a huge set back, only partially redeemed by the progressive stance of the judiciary in NALSA v Union of India (2014 (5) SCC 438). While these defining and landmark statutes and judgments do have purely legal angles, we as a journal on law and society, take pride in providing the platform for analysis of such developments from an interdisciplinary perspective. The present issue includes two papers analyzing the intricacies of gender justice. As mentioned in our previous Foreword, last year, on our Blog, we published an insightful, interdisciplinary piece by a young graduate of NUJS reflecting on an incident of sexual harassment. This ultimately led to major institutional changes such as the formation of the Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC) and the drafting of the NUJS Guidelines on Protection of Students from Sexual Harassment during Internships. This incident reaffirmed the faith we have placed in interdisciplinary scholarship. With this issue, we now take another step forward in our endeavour to promote scholarly research analyzing law using the tools of social sciences.
Exploring the thematic linkages between poverty and criminal responsibility, Saurabh Bhattacharjee, in his note titled ‘Should Valjean have been Punished for Stealing Bread? Of Poverty and Criminal Responsibility’, makes a threefold argument. He argues that liberal models of criminal responsibility cannot accommodate the defence of poverty, due to assumption of pre-existence of freedom and equality of choice. He further examines the tenability of invoking necessity and duress as poverty defences within the realm of general defences in criminal law, concluding that this would not be defensible. However, he argues that an argument of poverty and deprivation are more relevant in sentencing due to the individualized process. He concludes the paper by noting that the moral justification of criminalisation of manifestations of poverty such as homelessness, street vending etc. is very weak. He suggests that a practical solution would be a minimalist use of criminal laws.
Ipshita Sengupta, in her paper entitled ‘Nurturing Caring Lawyers: Rethinking Professional Ethics and Responsibility in India’, highlights the declining standards, and public trust in the legal profession. She argues that the exaggerated focus on rules, legalistic thinking and analysis has distanced lawyers from their ethical sensibilities which can be remedied by reconnecting lawyers to the moral dimensions of their profession. In particular, she proposes a solution centred around Carol Gilligan’s ethic of care which may help lawyers to reimagine and reconstruct the legal profession.
In another thought provoking article, ‘A Critical Study of Free, Prior and Informed Consent in the Context of the Right to Development – Can “Consent” be Withheld?’, Ipshita Chaturvedi aims to widen the ambit of the legal contours of the principle of Free, Prior and Informed Consent (FPIC) to include the Right to Development. To this end, she first discusses the understanding and implementation of this principle by the State, the United Nations, international financial institutions and multi-national corporations. In particular, she elucidates upon the striking difference in the usage of the term by the World Bank and the United Nations Declaration on the Rights of Indigenous Peoples, 2007 – the former calls for free, prior and informed “consultation” instead of “consent”, implying the absence of the right of withholding consent. In this context, the Right to Development and its interface with FPIC has been examined, with the author arguing that the FPIC is contained within the Right to Development. She then analyzes judicial pronouncements on withholding consent in the context of FPIC, development and the concept of “consent”. Deviating from the norm of understanding FPIC from a right to self-determination perspective, she has attempted to present FPIC from a Right to Development standpoint.
As mentioned previously, this edition carries two papers which explore the developments in gender justice. In ‘Be it Manu, Be it Macaulay: Indian Law and the ‘Problem’ of the Female Body’, Kanad Sinha argues that the societal rhetoric of viewing a woman’s body as her husband’s property is constructed and justified on the basis of a notion of (ancient) Indian culture/tradition derived from the partial and selective reading of ancient Indian literature such as the Dharmaśāstra tradition stemming from Manu, ignoring many other alternative traditions. This strand of Indian tradition matches Victorian morality. He argues that the provisions of the Indian Penal Code regarding rape, adultery and other crimes against women survive in the 21st century as Victorian socio-legal mentality has a common meeting ground with the traditional selected Indian socio-legal mentality.
Taking the discourse on gender justice further in ‘Legal Recognition of Same-Sex Relationships in India’, Nayantara Ravichandran argues that attaining legal recognition of same-sex relationships is imperative in realising the ideal of equality, and therefore, should be considered as important, if not more, than overturning the decision in Naz-2. Since marriage laws recognise only heterosexual unions, same-sex couples are deprived of all the state, financial and social benefits that may be availed by heterosexual couples. In this paper, she explores various routes of recognition, concluding that the most viable manner of attaining the same would be an amendment to the Special Marriage Act, 1954.
Dealing with another pertinent issue, Sreyan Chatterjee in his paper, ‘A Comparative Analysis of the Cost-Benefit Debate Around the Proposed Congestion Pricing of Roads in Delhi’, has closely examined the economic viability of proposing ‘congestion pricing’ as a solution to the deplorable condition of traffic in India, drawing from the Delhi Government’s proposal to introduce a congestion fee for every vehicle entering the central districts. Undertaking both a theoretical and comparative analysis, he concludes that while the introduction of such a model is desirable, its success would depend upon the presence of certain pre-conditions, ranging from optimal quantum of ‘urban transport tax’ and diverse paying options to transparent and dynamic dissemination of policy-based information, determined primarily by varied social and political realities of the day.
This issue of the Journal also carries three book reviews. Armin Rosencranz, who needs no introduction to those interested in environmental law and otherwise, incisively takes us through ‘Churning the Earth: The Making of Global India‘ which has been authored by Ashish Kothari and Aseem Srivastava. He appraises the piece through the lens of an activist-academic and finds it wanting in appreciation of the recent developments to environmental law and policy in India. Despite a commendable effort at identifying the key debates affecting the Indian polity, the book is dated in its appraisal of judicial and political currents which compound the impact of globalization in India – and this cuts the book short of being a comprehensive and up-to-date commentary on the diverse issues of the Indian democracy.
The book ‘Citizenship and its Discontents: An Indian History’, authored by Niraja Gopal Jayal has been critically reviewed by Ajay Gudavarthy. He has critiqued the author’s inability to rationalise the interplay existing between nationalism, neo-liberalism and the heterogeneity of identities as the prerequisites of reaching a conclusion as to the underpinnings of social citizenship and solidarity in India. He has evaluated the effect of the above ricocheting interactions on Indian democracy and particularly the subaltern who are now caught in a complicated maze of powerlessness, heterogeneity exclusion and militancy to conclude that the moment of active citizenship coincides with the growth of competitive contractualism and the decline of political legitimacy.
Rohit De has reviewed the book ‘Constitutional Nationalism and Legal Exclusion – Equality, Identity Politics and Democracy in Nepal (1990-2007)’, written by Mara Malagodi. The book is an account of the constitutional project of Nepal in the 20th century and the early 21st century. The reviewer suggests that transformative constitutionalism in Nepal is a great area of study for researchers and scholars, but progress has been slow due to factors like language barriers. He is of the opinion that the book therefore makes a significant contribution to the conversation of comparative constitutional law. He however notes that the book’s focus on text and case law leaves the reader curious about the judges’, lawyers’ and the citizen’s perception of the Constitution. Furthermore, he opines that focus on issues like social and religious exclusion subsume other crucial issues like economic, social and structural inequalities.
In the abovementioned two books under review, both Malagodi and Jayal explore the common themes of citizenship, democracy and constitutionalism. The books provide a historical narrative and an incisive account of constitutional projects in two neighbouring South Asian countries, India and Nepal. We have chosen the books with the hope that a reading of both these books will paint a more complete picture of the story of citizenship and constitutional experience in South Asia.
On a different note, we would like to gladly inform all our readers that our Journal will henceforth be printed and distributed by the Eastern Book Company (EBC) Group. Established in 1942, EBC is one of India’s foremost and most reputed publishers. The EBC Group also publishes the Supreme Court Cases (SCC) series, one of the most well-known and prominent law reporters in India. We look forward to a very long and fruitful association with the Company. We are thankful to Mr. Sumeet Malik, Director of EBC, for his understanding and patient approach during our negotiations. Henceforth, alongside the print version, the Journal will be indexed and available in full on the SCC Online database. We will also continue hosting the Journal on our website. Needless to say, we will always be grateful to our previous printing partner, Hyam Enterprises.
We also take this opportunity to thank our Editor-in-Chief, Prof. (Dr.) P. Ishwara Bhat for his continuous support and unwavering faith in all endeavors of the journal. A special thanks to our faculty advisors – Dr. Lovely Dasgupta, Ms. Ruchira Goswami and Mr. Saurabh Bhattacharjee, for their constant guidance over innumerable issues. We are perennially indebted to the members of the Graduate Advisory Board as well as the peer review board. Their expertise and guidance is invaluable to us. We must mention the regular support and assistance we receive from several alumni and former members of the Editorial Board. We are grateful to all the members of the JILS family who helped us reach the agreement with EBC. We are also very grateful to Prof. M P Singh for all the support and advice he has extended to us. We sincerely thank our readers for their interest in the publications of the journal and in our blog. We hope to continue to live up to your expectations.
- The Board of Editors
Prof. Nandini Sundar is a Professor of Sociology at the Delhi University. She was one of the lead petitioners in the well-known case of Nandini Sundar v. State of Chattisgarh (WP (C) 250 of 2007). She won the prestigious Infosys Prize in 2010 for her contributions to social sciences. She has several publications to her credit and writes regularly for the newspapers. She kindly agreed to have a chat with us [Vasujith Ram, Executive Editor and Shambo Nandy, Advocate and former Executive Editor] in Delhi. Following are the excerpts from the interview.
Q: Could you tell us a little bit about yourself? What drove you towards taking up research and teaching, and more particularly why did you choose sociology?
A: I had taken up humanities in high school as I always knew I wanted to do something that required engagement and interaction with people. This is also the reason why I took up sociology. I did a year of sociology at Delhi University. My first year in college was in 1984, and I remember that the class spent most of the time visiting the relief camps that Prof. Khera took us to. I was also suffering from jaundice and couldn’t attend many classes. Following this, I went to England to do philosophy, politics and economics [PPE]. Thereafter, I completed my PhD in anthropology from Colombia. I liked philosophy and political theory but wanted to do a subject which enabled you to interact with and interview people.
I wish I had done law. Unfortunately, by the time I considered doing law, I was not in India. It was destined to be a missed opportunity I guess. My teaching trajectory commenced with JNU and I moved to DU in 2005.
Q: Could you tell us more about your PhD research and the themes it touched upon?
A: My PhD research was on the history of rebellions against colonial land and forest policy in Bastar. This was later published as a book, Subalterns and Sovereigns, in 1997.
Q: Did your research have anything to do with you filing the Salwa Judum PIL?
A: I would say: Yes, it did. For me, Bastar is a place to which I have been a regular visitor for the last 20 years. It’s like home to me. I consider several people like my family there. Though I went to Gujarat in 2002 and witnessed it in a horrible condition, Bastar held a personal relevance for me. On the point of the work and research that went into filing the PIL, I would agree that my PhD research aided me a lot in terms of familiarity with the area, knowing the local people etc. However, I had to observe, understand and learn the area from a whole new dimension this time.
Q: What made you take up activism based on your study? Would you suggest that activism and theory are necessarily complementary in nature?
A: Not necessarily – it’s perfectly possible and maybe even desirable to carry out research without engaging in any kind of activism. Sometimes you have to engage in activism not as a researcher, but as a citizen. But since we teach equality, liberty and democracy as social scientists, I think we also have a duty to try and examine our own practice in these spheres.
Q: Can you tell us about the PIL? How did the idea come about? How was the PIL planned
and how did you all come together? Also, which lawyers did you approach?
A: I went with the PUDR-PUCL team in November, 2005 for the first fact-finding exercise. Then, we carried out the second fact finding exercise with the Independent Citizens’ Initiative which involved BG Verghese, Ramachandra Guha, EAS Sarma, Harivansh and Farah Naqvi. The PIL was essentially the product of the second fact finding. For a while, I had been deliberating with PUCL-Chattisgarh regarding whether they wanted to file a PIL, but they expressed scepticism fearing that it might backfire. So, when we came back in May 2006, Ramachandra Guha and EAS Sarma agreed on the PIL. Farah had been engaged in the Bilkis Bano case in Gujarat for a long time (first riot-related rape case conviction in Gujarat) which demanded lots of court visits. That’s why she couldn’t join us then. Therefore, three of us decided to independently file that PIL. Usha [Ramanathan] whose help I had sought for discussing our next step knew the work of Ashish Chugh who was then a junior to Mr. Andhyarujina. She suggested that if Mr. Andhyarujina could be convinced and if he found potential in the case, then we had a good chance before the Courts. He was very sweet and agreed to our proposal. Also, it was Ashish’s friend named Pragya Singh, working at Karanjawala & Company, through whom the case was then filed by Karanjawala & Co., in April 2007. May 17 was the day of our first hearing. Mr. Andhyarujina argued and the court issued the notice but without giving any deadline. That was the first time that any State- body acknowledged the occurrences of violations bu the Judum. The fact that the event was also covered by the radio made us feel that the PIL was finally making some sort of difference. Then, in July I went to Bastar when the CPI had just came back from a rally across the border. This was the first large-scale public rally where people spoke openly about what was happening to them. Until that time people were scared to even raise the topic for discussion so much so that if you happened to visit the camps, people would try to dissociate themselves from the Judum: they would say that they came there voluntarily. Nobody was ready to talk about what had actually happened. The judum leaders maintained constant vigilance regarding what people were saying. The rally found people forwarding letters to Manish Kunjam, CPI leader, explaining all that had happened in their village. So, this was the first time that we had some statements from villagers themselves as till then we only had reports from fact-finding exercises. Without corroboration by villagers in their own words, these could have been easily dismissed on the ground that those were the delusional opinions of “Maoist supporters” etc. Then, Rama Sodi one of the CPI activists suggested that we approach the court. We discussed it with the CPI in Delhi and they decided that three persons from Bastar who themselves had been affected, would file the petition. So, a companion petition was filed in August, 2007. The first hearing was in October 2007 and we had more than a 100 testimonies which we used in the petition. Many of these testimonies were on little scraps of paper explaining what had happened. Nitya Ramakrishnan drafted the petition and Mr. [Ashok] Desai argued. Mr. Desai and Nitya have been deeply involved throughout, working pro bono as have all the lawyers on this case. I learnt a lot throught this experience – becoming familiar with words like “Dasti” and “giving appearance”. The first case was only against the Government of Chhattisgarh, while the second case was against the Government of Chhattisgarh and Union of India. Both the cases were clubbed together. Things worked out really well because Mr. Desai and Mr. TR Andhyarujina knew each other. For example, it sometimes happened that both would come and argue while sometimes only one would come and argue on behalf of both. Sometimes we had embarrassing situations when both would give conference time at the same time, but we somehow managed and they were very kind. In October 2007 the court issued notice on the second petition and in March 2008 they asked the NHRC to inquire into it. The NHRC enquiry was conducted in the summer of 2008 and the resultant report was somehow an attempt to white-wash the happenings. They sent a team of 16 policemen. It was evident that NHRC was acting at the Home Ministry’s behest, from the fact that they leaked the report to leading newspapers before giving it to the Court or us. Fortunately, the PIL was heard by Justice Balakrishnan (who was the Chief Justice between 2007 and 2010) along with the Associate Judges as all the PILS were being heard by the Chief Justice during that time. Justice Balakrishnan analysed the report by reading against the grain in a way and realised the enormity of the situation. He didn’t issue any firm directions but he made good noises. At that time I was disheartened and even considered giving up because the NHRC report had countered all our efforts, but Mr. Desai, Nitya, Menaka [Guruswamy] were against surrendering and urged me to use the report and use the points to build our own case. Following this, we filed the counter-arguments mentioning the points on which we agreed or disagreed with the NHRC observations. The situation was so bad that they could not really hide it and there were lots of discrepancies between what they actually found – evidence of large scale burning – and their final conclusions. Nothing eventful happened between October 2008 and 2010. In 2010, there was a discussion about having a monitoring committee Justice Balakrishnan asked us the names of people who would be a part of the monitoring committee – and asked us to show consent letters. We got consent letters from several eminent people.
In the summer of 2010, Justice Balakrishnan retired and the case went to Justice Reddy and Justice Nijjar who began to take much more interest in it. The fact that they were already dealing with the Gompad case filed by Himanshu Kumar in 2009 was the reason why our case was transferred to them. Thereafter, all the Chhattisgarh cases were clubbed together. Although we kept pushing the rehabilitation committee, they didn’t seem to be very keen on having it. There weren’t keen on having the Supreme Court monitor the registration of FIRs either.
In 2009, Operation Green-Hunt was launched. When operation Green-Hunt started in 2009, some of the newspapers, (until then few of the major newspapers had any correspondents in Chhattisgarh) namely, The Indian Express and The Hindu published about it. So, for the first time, we were getting a lot of coverage of what was happening. In March, 2011, there were reports about 3 villages being burnt. For the first time, an immediate detailed report was prepared on the matter (by Aman Sethi). So, all the attention shifted to the SPOs. Finally, it was seen that the 2011 judgment was mostly focussed on the SPOs, whereas we had been hoping that the judgement would also include a monitoring committee. However, the 2011 judgement delivered pretty much all that we wanted except the monitoring committee; the absence of which obstructed the implementation of the directions touched upon by the judgement.
Q: The Judgment has brought to the fore one core Preambular value, which was lying dormant in our Constitutional discourse – the value of fraternity. While liberty and equality are oft-discussed themes and consistent aids in constitutional interpretation, the judgment has probably for the first time used fraternity as a value and linked it to fundamental rights and directive principles. Your thoughts?
A: The glory of the judgement can entirely be accrued to Justice Sudershan Reddy and Justice S.S. Nijjar (more so by Justice Reddy). In fact, he didn’t use much of our petition, because it was mainly based on human rights violation, field-work, etc. but he focussed on Constitutional aspects of equality, fraternity and the whole of the preamble. Also, he had done a lot of his own research on the causes of Naxalism and its background. Moreover, he comes from Andhra Pradesh and that’s why he had a good sense of what the issue regarding the Maoist activities actually was. I would say that the judgment was an embodiment of his constitutional ideas. It is also reflected in the ‘Black Money’ judgment which was pronounced at the same time.
Q: Is there any other litigation you are part of? Are there any more PILs you are planning to file in the near future?
A: No, thank god! [Laughs]. Actually – yes, I am part of another case dealing with copyright law in the DU Photocopying Case as a part of SPEAK, an association of teachers and Scholars” defending the right to photocopy but I am not actively involved in it and have not done any work for it.
Q: You have said that you are disappointed on how the order was implemented. Have you filed any contempt petition?
A: Yes, we filed a contempt petition in the year 2012. In 2011, we got this wonderful judgment. As soon as it came, the Chhattisgarh government renamed SPOs as ‘Armed Auxiliary Force’ and provided them with better guns and salaries while the judgment said ‘disband all the SPOs’, ‘punish all those who are guilty, including the SPOs’, ‘use them only for traffic management’ etc. So, earlier they were harassing people with normal guns .303 but now they were doing that with AK-47s. The judgment also dealt with how they were not educated enough to be able to understand the professional obligations that you have during armed insurgencies, the requirement of policing. So, many people started producing fake 5th grade certificates. It was a complete slap in the face of the Court. It was really contempt of court. In July 2011, the Court also directed the CBI to investigate the burning of these three villages. The CBI was supposed to submit the report in 6 weeks but they did nothing during that time. The first time they went to investigate was after 6 months in January, 2012. When they again went in February, they were attacked by the SPOs and were locked up in a room. There was so much firing outside the room that they had to barricade themselves. After that, we filed a contempt case, since these are. the same bunch of SPOs who were supposed to be disbanded. CBI has still not submitted its report four years later. Since 2012, we have not had any proper hearing on contempt; there were a couple of hearings in between where the other party was asked to respond and as usual they gave silly responses. The Chattisgarh Government has filed an affidavit saying that not even one of the erstwhile SPOs was in possession of arms which is completely false. The Chhattisgarh government doesn’t’ even care about lying to the court – they are confident that nothing will happen to them. They do not show any intention of coming to the court and each time provide petty excuses.
Q: You have played an active role in voicing the causes of the tribal people. You have travelled yourself to these areas. What do you think are the difficulties and roadblocks faced by these regions with regard to educating children and setting up other necessary institutions?
A: Education in these areas is seriously messed-up for a variety of reasons; one is that even during non-conflict times there is very little scope for education in the adivasi areas; teachers don’t come, schools are in terrible conditions, you have one teacher for hundreds of kids, schools don’t have basic facilities. So, all the possible problems faced in the arena of schooling across the country are unveiled in a magnified manner here. There have been several reports in the past 2 years about discrimination in the way teachers teach adivasi or dalit children. The other problem is that teachers are usually from non-tribal areas, so there is a language problem and the third and the biggest problem is that education in tribal areas is often used as a way of converting children. The VHP, the RSS and the Christian missionaries set up large networks of paid education. In the case of educating the adivasi children, it’s not really about giving them critical education that helps them to cope with getting jobs or opens up their mind or exposes them to new ideas but it is more about making them ‘civilised people’; forcing them to forget about their own adivasi customs and become urban and practise Hindu festivals. It is really a project of cultural transformation rather than education. When the Salwa-Judum happened, all the teachers were ordered to come and live in camps. Even the school that had been working in the villages stopped working and now after so many years, the teachers are not willing to go back as they are getting paid without doing any work. Government has handed over these areas to the Maoists and hence, nobody wants to go there. Maoists having blasted a school is another reason not to go there. Therefore, there is an entire generation of people there who have had no schooling at all. And now, whenever people do want their children to go to school they have to put them in the 1000 seater ashrams which the government is building. The children feel completely lost as they are far away from their parents – and again there is huge “civilizing” stuff going on. One thing we had been asking from the beginning is to make the security forces leave the schools and let the teachers come back because that’s the only way to bring about normalcy and peace. A lot of the schools did get vacated after a Supreme Court order. However, what the CRPF has done is to set up their camp in the school compound. Thus, there are lots of villages where the CRPF camps are right next to the schools and have created special problems for girls because there are girl’s hostels where all these men bathe under the hand-pumps and roam around and it is not the kind of atmosphere young girls can study in.
Q: What kind of injustice did you see there?
A: All kinds! There is this young group of lawyers who have started the Jagdalpur Legal Aid group. They’ve been working there – three-four people from DU law faculty – their reports on undertrials show that there is no judicial machinery. They don’t get produced for months on end, lawyers don’t talk to them, their families don’t know where they are, somebody could be held even if the name on the accused list is somebody else. There is a complete travesty of justice. That’s the situation of undertrials especially in areas with conflict. People are locked up for months and years on end. The judicial system is extremely difficult for adivasis. Even for us when we conceived the PIL, we were lucky that the lawyers argued pro bono. But if you are just a regular litigant, it is quite hard. People don’t understand the language of the courts and the system. People sell everything to pay for lawyers fees – yet they don’t get any redress. One must read a book by Vasudha Dhagamvar – Role and Image of Law: The Tribal Experience. There is this chapter – `Prisoner at the Bar, Are You Rich or Poor?’, which eloquently describes the situation.
Q: You have written regarding some of the difficulties with our electoral system. How do you think our electoral law and democratic process should evolve and change, especially in the light of blunt populism, criminalization of politics as well as lack of representativeness plaguing our system?
A: One of the big reforms which is needed is that there should be a cap on spending by political parties and not just by the candidates. On that point obviously, the parties like AAP or any left party can’t compete with that kind of money that bigger parties may spend. Therefore, there is no level-playing field and unless you cap party expenditure you won’t be able to have that. Ideally, you should have state funding of elections and if you can’t then you have to think of something else – because clearly money is playing a big role in determining who gets voted. This is evident by the increasing numbers of millionaires in the parliament and the dynastic rule and all of those things which are indicative of lots of money. Then, the other thing that I think is a big problem is the first-past-the-post system which means that people who get elected are not necessarily representative of the constituency. It may be desirable to get a candidate who may be not your first choice but is at-least your second best choice. You should be able to vote not just to have somebody in but also to keep somebody out. So, if you had a single transferable vote, say, for instance, I vote for BSP (first choice) and SP is my second choice in UP, I should be allowed to transfer my vote to SP if my first choice doesn’t win.
Q: You have studied and taught both in India and abroad. What are the differences that you see?
A: The US has very varied systems from Ivy League universities to community colleges. In places like Delhi University we often combine both, so students come from very varied backgrounds with different capacities. But what bugs me is when students who can, don’t attend their lectures, don’t do their work in time, and don’t do the readings given to them. They study only around the exam time. They should read and come to class so that we have a proper discussion. In the good universities abroad, students read and come to class as a matter of routine.
Q: What courses do you teach? Do you think the curriculum plays a vital role in shaping the outlook of a student?
A: I teach ‘sociology of law’, ‘sociology of media’, stratification, industry etc. to M.A. students and apart from this, I take MPhil courses. In the last few years, these have been on civil war, law and violence but the courses change.
Q: What do you think is the state of sociology of law scholarship in India today? Do you
think students pursuing social sciences should be taught the basics of law?
A: There certainly has been a huge revival in law and society scholarship and if we look at the number of people who are members of LASSNET, it is a big indication of the growing interest in the field. So, that is very encouraging and sociology of law courses are also being taught in more places. For a long time, Professor Baxi and a few other people like Vasudha Dhagamvar or Lotika Sarkar were the only ones, and now you have people working on a huge variety of fields. It was also nice to see that Mr. Desai, Mr. Andhyarujina or Nitya Ramakrishnan do not restrict their arguments to just law in Court but also refer to literature or philosophy. I also teach Mr. Andhyarujina’s book on Kesavananda Bharati in my course. I think its good for lawyers to have a base in other disciplines.
However, I am unsure whether all social science students should be taught law. Of course everyone, including science students, must know some legal basics, but when we teach the sociology of law, we are not teaching people how to deal with crime once committed or what the crime is, we are just talking about how it constructs ideas of crime and normality and all of that.
For instance if we were to study 377, we would look at the social attitude towards gay rights, how a case comes to the court in this kind of situation, the kind of prior mobilization etc. Along with a legal perspective on the judgment, there is also lots of other stuff going on behind the case. So, this is what we examine and establish a relationship between these two.
Q: If you were to teach in law school one day, what course would it be, and why?
A: I am not sure. It also depends upon who your colleagues are – sometimes you might want to each a collaborative course with them and it also depends on what else is being taught in the university at any given time, and what your own interests are at that time.
(Special thanks to Shambo Nandy, and all the internal members of the Journal for the assistance in conducting and transcribing this interview)
Journal of Indian Law & Society
and
Constitutional Law Society, NUJS
Organize a Lecture
By
Prof. M S Galanter
On
Reflections on the Birbhum Gang-Rape case
Date: 1st December, 2014
Time: 4.30 PM
Venue: Room no. 107, National University of Juridical Sciences
About the Speaker: Prof. Marc Galanter is an Emeritus Professor of Law at University of Wisconsin Law Scool. Due to his focus on empirical legal research, he is a leading figure in the Law and Society movement – he was Editor of the Law and Society Review as well as the President of the Law and Society Association. He is well known for his article, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change”, published in the Law & Society Review (1974), which is one of the most cited legal articles of all time. He has long been associated with India, having written the books “Competing Equalities: Law and the Backward Classes in India” (OUP 1991) and “Law and Society in Modern India” (Oxford 1993).
Journal of Indian Law & Society
Organizes a Lecture
By
Prof. Apurba K Baruah
On
Kinship, Civil Society and Citizens in the North East
Date: 22nd September, 2014
Time: 3 PM
Venue: Room no. 107, National University of Juridical Sciences
About the Speaker: Prof. Baruah is the Academic Director (Hon), Institute of Social Change and Regional Development, Guwahati, Former Professor and HoD of Political Science, NEHU, Shillong and Member, North-east Monitoring Committee, Indian Council of Social Science Research. He has also been a member of the Indo-Russian Joint Commission on Social Science Research. He is the Founder Secretary, former Vice President and a life member of the North East India Political Science Association (NEISPA), as well as the the Founder Secretary and a life member of the North East India Social Science Congress.
by Avani Chokshi
The release of the movie ‘Mary Kom’, which traces the life of the Indian boxing champion of the same name, has led to huge controversies with people questioning the decision of the creators of the film to cast Priyanka Chopra- an actor apparently without the distinctive North- Eastern physical features- as Mary Kom. Similar controversies over the division between North-Eastern Indians and their mainland counterparts have sprung up incessantly and increasingly over the past decade. These include the Nido Tania controversy, where Nido Tania, the son of an MLA from Arunachal Pradesh, was beaten up with iron rods in a shop in Delhi, leading to his death. Racial motives were attributed to the offenders. Similarly, the SMS hate campaign against North-Eastern Indians, and the assault on women from Singapore, the complaint registration of which was delayed on the grounds that they looked like North-East Indians drew cries of public outrage. On a yet another embarrassing occasion, the police failed to take any measure against assaulters of two Manipuri women. The police were stirred to action only after the public pressurised them. These are not merely isolated incidents against individuals, but are manifestations of racial profiling and discrimination, which is entrenched in the fabric of our society’s past and present.
While discrimination against people with Mongloid features occurs majorly and must be addressed, it is also important to note that racism in India isn’t confined to such instances. Various other cultures too have been marginalized by Hindi speaking North-Indian races. The fairer skin of these races is deemed superior and thus desirable. The omnipresence of fairness products in India is a manifestation of the commonly held notion of darker the skin more inferior the race, further endorsing the deeply pervasive racial differences. Advertisements of these products promulgate the societal conviction of a hierarchical system where people with fairer skin are deemed inherently superior. The recent banning of fairness advertisements may be said to be directly correlated to debunking race. South Indians have customarily been dismissed as ‘Madrasis’. Racism in India is manifested in day to day jokes and culture. Even mainstream Bollywood movies have been seen to propagate racism.
The pertinent question brought forth by these incidents is the necessity of an anti-racism law in India. Unlike the USA, UK, and Australian Censuses, the national Census of India does not recognise racial or ethnic groups within India, but many of the tribal groups are categorised as Scheduled Castes and Tribes. This post will seek to question whether these and other social groups in India continue to be discriminated against because of their race, and whether an anti-racism law in India is needed.
As with any legislation, there are pitfalls in having an anti-racism law. One of these is the possibility that such a legislation may infringe upon the right to free speech. For instance, the recent law against Racism and All Forms of Discrimination passed in Bolivia has been cited as an argument for introducing an anti-racism law in India. However, Article 16 of this statute is as follows, “A medium which authorises and publishes racist and discriminatory ideas will be subject to economic sanctions and to suspension of its license to function, subject to regulation.” This is clearly inconsistent with the ideal of free speech. Similarly, the Victorian Racial and Religious Tolerance Act (2001) in Australia has proved controversial on the same grounds.
There are several domestic laws that aim to eliminate race-based discrimination. An analysis of these provisions and their shortcomings would better highlight the need for a comprehensive anti-racism law-
Article 15 of the Indian Constitution provides that the State cannot discriminate on the basis of, among other things, race. However, the practical applicability and enforceability of this Article on crimes of a racial nature must be scrutinised. Due to its status as a fundamental right, only crimes perpetuated by State can find relief under the article. Thus Article 15 prima facie fails to protect victims of race based crimes committed by private individuals.
Article 371 of the Constitution lays down special provisions for the states of Maharashtra, Gujarat, Nagaland, Assam, Manipur, Tripura, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh and Goa. While the provisions relating to the mainland states primarily relate to development, employment administration and education, the provisions for the North-Eastern states are far more extensive. These provisions include protecting the “religious and social practices” of the Mizos and the Nagas, and empowering the Legislative Assembly of Nagaland the right to ratify any Act of Parliament regarding “ownership and transfer of land and its resources” before application to Nagaland. These provisions have received a variety of reasoned responses over the years, ranging from lauding this article for empowering the people to criticising it for failing to protect the Naga community as a whole and being undemocratic. Another issue that arises is that conferring these far-reaching special rights on the North Eastern states widens the gap between the rest of the mainstream India and these states and highlights the fact that citizens of the North-East are perceived more as foreigners than as Indians.
Like the Constitution, the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the SC/ST Act) seeks to protect the interests of certain minorities In India. As one of the foremost anti-discrimination legislations in India, it is similar to an anti-racism legislation in the sense that it protects a certain class of people from the ones outside of it. However, while the SC/ST Act protects on the basis of caste, an anti-racism law would protect on the basis of race. Though these two classes of people do often overlap, there are communities which fall outside the purview of one but not the other. Such victims would have no specific recourse in law, and would have to move for relief under the general provisions of Article 15 of the Indian Constitution. These might include tribes such as Gonds of whom only a fraction are classified as Scheduled Tribe, as well as whole divisions of racial minorities such as those with Mongloid features.
Though this distinction is apparent prima facie, the problems due to the distinction are slowly disappearing. A recent directive from the Ministry of Home Affairs declared that all offenders guilty of atrocity against North- Eastern Indians were to be charged under the SC/ST Act. This gives the impression that a certain race of Indians- or those with Mongloid features- are being protected under the SC/ST Act, despite their not belonging to the categories enumerated in the Act. However, this would not create a precedent of giving relief to victims of racial discrimination belonging to other races outside of the Sc/St bracket. The rationale of the Ministry of Home Affairs was that since most North- Eastern Indians are members of the Scheduled Tribes, they could be protected as a group. Consequently, a person outside of the North-Eastern community who was a victim of crimes based on racial discrimination would have no recourse under the SC/ST Act unless she was from a community that was majorly composed of members of the SC/ST communities.
This same directive provided that the use of the term ‘chinki’ could beget a penalty of imprisonment for up to five years. That the use of a racist slang, no matter how offensive, can lead to an imprisonment of five years has also been condemned. Though the law’s punitive ramifications seem to be unnecessarily harsh, there can be no doubt that this law, if properly implemented, would severely discourage race based offences- if only against Northeastern Indians. However, for a law to be properly implemented in India, the police first have to be convinced of the legitimacy of the law. Some have argued that the problem of institutional racism is when police try to suppressor dismiss the crime as insignificant. There is a tendency to cast aspersions on the character of the victims or complainants and refuse to register first information reports, or of putting unnecessary pressure on the victims to withdraw the case. For instance, in a case where the first response to a Manipuri girl found dead under suspicious circumstances was to register a case of suicide, which was only converted to murder and culpable homicide after much pressure. Indian police have been recognised as be strongly biased against North-Eastern Indians. Some have been documented rejecting the possibility of rape of North Eastern women on the grounds that all of them are habitually prostitutes. Further, there are an extremely disproportionate number of North-Eastern Indians in the police force- for instance, out of 90,000 policemen in Delhi, only 43 are from the North East. Since the implementation of any law is strongly reliant on the police forces, it is to be questioned whether this amendment would have any tangible effect on the situation.
Apart from these domestic provisions that the Indian legislature has passed, India is also a signatory to ICERD (International Convention on the Elimination of all Forms of Racial Discrimination). However, India made the reservation that in case of any appeal to the International Court of Justice for a decision regarding ICERD, the consent of each party in each individual case would be necessary. Thus, any offending party might simply refuse to consent to the application of ICERD to their individual case. Accordingly, in international forums, the provisions of ICERD might not be sufficient to satisfactorily combat racial discrimination in India. Though India follows a dualist system of implementation of law, the judgment in Vishaka v Rajasthan in 1997, held that in the absence of any domestic law, international provisions would be significant. Thus, in Indian Courts, the provisions of ICERD could be applied in unison with other domestic legislation such as the SC/ST Act. However, this application could always be questioned as not inherently part of the Indian legal framework. Consequently, Indian legislation would better serve the purpose of a convincing, decisive anti-racism law.
The huge debate sparked off by the Mary Kom incident cannot be said to be purely legal in nature. The issue is not only one of enforcement or the lack of legislation but also of India’s sociological and societal nature. Indian society seems unable to accept the continuous rise of racism in our country, which further complicates an already complex situation. However, one must not forget the important role law does play in addressing neglected societal problems. For instance, after the Naz Foundation judgment[1] in the High Court of Delhi brought to the forefront the problem of homosexuality- which has been traditionally ignored in society- victims of discrimination on the basis of sexuality felt significantly safer and more socially accepted. Following this example, it is at the very least possible that a change in the legal status of race-based crimes will bring about a shift in the mindset of the people and is almost for certain that it will give them more protection.
A recent article by a renowned political journalist takes the view that the demand for an anti-racism law in India is a political exploitation of transient public outrage. According to him, laws in the Indian Penal Code, 1860 are sufficient to combat racism, and rather than a new law, active implementation of existing laws is necessary. However, the present laws are neither comprehensive, nor are they sufficient to combat the race based crimes in India as showed above. A new law, with the same deficient implementation by law enforcement agencies would nonetheless form a very valuable piece of legislation that pro-active judges could use to combat racism in India. Further, the simple act of having a new legislation come into being would sensitise the Indian populace to the issues of racial discrimination still predominant in India.
One must remember that the problem of racial profiling is more sociological than legal. Integration of people of the people who face the problem of racial profiling into mainstream India can only occur with an absolute change in the outlook of other citizens. The problem manifests itself in the most fundamental of things – even the National Anthem, a symbol of Indian patriotism and collective belongingness- excludes the whole of the eight states that form the Northeast. There is a need for decent primary education about the Northeast as much as the rest of India- only through knowledge can there be true acceptance and integration. Similarly, there can be no elimination of the problem unless non- Hindi speaking South Indians are included as thoroughly into the Indian identity as their North Indian compatriots. Accordingly, while a new and anti-racism law will only assist the situation, it can never completely remove the problem unless there is a complete change in the rather closed mentality of most Indians. Racism is a problem in India, and people must accept it as such.
(Avani Chokshi is an Associate Editor at the Journal of Indian Law and Society)
[1]Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277.
