Bargaining Lives: A Critique of POSCO Special Economic Zone MoU (co-authored), Combat Law, Vol. 6,...

nnoovveemmbbeerr-ddeecceemmbbeerr 22000077VOLUME 6 ISSUE 6

The Lok Adalats are the flagship of the Indian judiciary fordispensation of justice to the poor. Though much propa-ganda has been done by those involved in organising Lok

Adalats, a social audit by an independent body is urgentlyneeded. Are the Lok Adalats achieving their objectives assome would like us to believe? Are the poor satisfied by the'justice' meted out to them by this institution?

There are mixed reactions from the field. In some statessuch as Jammu and Kashmir, the former Chief Justice B AKhan made excellent use of the Lok Adalats to bring relief tothe victims of the recent earthquake. In some other states aswell enterprising judges have infused the Lok Adalats withenergy and purpose.

In many parts of the country, however, there are distress-ing reports of poor performance by the Lok Adalats thoughmuch of this failure is covered up by laudatory reports thatdo not reflect the real situation. In matrimonial cases,lawyers representing women particularly have expressedtheir strong dissatisfaction with the attitude and functioningof the Lok Adalats. In criminal cases, accused persons arecompelled to plead guilty on being told that their caseswould take years to even begin and that they would languishin jail in the meanwhile. In matrimonial cases when the wifedesperately wants out of the marriage, Lok Adalats coercethe women to go back to their oppressive and violent hus-bands. In many cases poor persons are forced to settle forvery meagre amounts, the alternative being lengthy andexpensive litigation in courts. In this situation, what LokAdalats are meant for?

This is why an impartial review by competent persons out-side the judiciary is needed to assess the real impact of theseinstitutions on the poor. Lok Adalats were accepted uncriti-cally by the Indian Judiciary following a push by the WorldBank and the Asian Development Bank who devised a non-formal legal situation for the poor. Though couched in cleverlanguage, the basic ideological thinking of the foreign institu-tions was that the formal legal system with highly skilledlawyers and judges should be reserved for the rich for com-mercial litigation, and that these institutions should not becluttered up with the 'petty' issues of the poor. It is sadden-ing to see now that the Law Ministry naively blundered in fol-lowing the dictates of the Asian Development Bank with itswell known anti-poor sentiments.

The better approach is to recognise that India has one-fifththe number of judges and courts that it needs. Particularlynow, when the financial situation is so positive, there is noreason why the legal system not be expanded drastically. Thecourts have intervened to improve judges' salaries and right-ly so. But the judiciary seems reluctant to recognise thatwithout a massive expansion of the formal legal system, nojustice is possible. Without this, arrears will grow, the richwill always get priority in courts, and the poor will fall out-side the justice system, as indeed they have, and a dangerousunstable situation will emerge with the working class evolv-ing their own means of getting justice.

For this we will have only ourselves to blame.

DDeessppaaiirr iinn PPeeooppllee''ss CCoouurrtt

EditorColin Gonsalves

Managing EditorHarsh Dobhal

Senior Associate EditorSuresh Nautiyal

Senior EditorAbid Shah

CorrespondentsPrabhjot Kaur (Mumbai)Sheela Ramanathan (Bangalore)Geetha D (Chennai)

Cover Shyam Jagota

IllustrationsShyam JagotaMalik Sajad

Layout Bhagat S Rawat

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COMBAT LAW

Colin Gonsalves

C O M B A T L A W N O V E M B E R - D E C E M B E R 2 0 0 72

C O N T E N T S

LETTERS TO THE EDITOR 5

Driven to desperation 12Almost 500 farmers have committed suicide in Gujarat since 2003 but thestate government remains apathetic to their plight

Anjali Lal Gupta

World Bank unmasked 6An Independent People's Tribunal on the World Bank Group inIndia held in New Delhi gave the first ever opportunity to affect-ed people, experts and academics from about 60 grassroot civilsociety groups to be heard by a jury of eminent and distin-guished retired judges, social workers and public leaders.Excerpts from jury's preliminary findings

Irrigation policy in complete mess 14Big irrigation projects are bringing small results. Yet billions of rupees drained out in the name of expanding irrigated areaHimanshu Thakkar

Innocence on sale 9Poor Indian children are being freely traded across the globe

Geetha Devarajan

INDEPENDENT PEOPLE'S TRIBUNAL

FARMERS' SUICIDE

POLICY

LAW OF SECRECY

TRAFFICKING

The secret factor 21

The official secrecy law brought in yore by the British has been preferredby powers-that-be until this day to deprive people of their right to knowand selectively use it as and when it may suit the State

Jai Singh

New eyes for New Burma 23Democracy to Burmese is not a one dimensional, monochrome animalto be admired in a glorified zoo but a multi-coloured bird set to fly freefor all to savour and see

Satya Sagar

BURNING NEIGHBOURHOOD

Crippling Lok Adalats 53As justice delivery system gets farther from people, a serious attempt likeLok Adalats to make justice accessible to large chunk of poor, needy anddeserving too has been appropriated by powerful vested interests

Girish Patel

w w w . c o m b a t l a w . o r g 3

C O N T E N T S

Bargaining Lives 32

POSCO brings Orissa government to its knees as an MoU signedbetween the two is not only going to rob thousands of villagers oftheir tenuous preserves in far off hamlets but also ties state's handsfrom doing anything except to support the South Korean giant

Saurabh Bhattacharya, Madhumita Dutta and Usha Ramanathan

Propping up human rights old style 26Street play has always been the best way to take any issue to the people including the victims of a human rights violation as the grassroots level

Archana Sarma and Subhradipta Sarkar

Access to justice and rights of needy 38

Wheels of justice hardly chug along as per a fixed timetable despite the bestintentions of courts and many among the crowd that throngs daily before them.And, thus, there has been talk of reforms that gave way for Lok Adalats orpeople's courts among other things. Empowered to bring conciliation and quickdisposal of cases referred to them, Lok Adalats have turned out to be a forummeant to clear the dockets of regular courts where demands of justice are oftennot fully met as poor have to be content with the solutions offered

Marc Galanter and Jayanth K Krishnan

STREET THEATRE

LAND GRAB

LOK ADALATS

Access to justice in globalised economy 58In an age when politics is giving way to market, poor stand little chance as judiciary tooundergoes restructuring. This is called for to suit the needs of market economy where bil-lionaire's right to remain super rich and plight of the most impoverished to be super-poorare going to be accepted

Upendra Baxi


Printed and published by Colin Gonsalves for Socio Legal Information Centre having its office at 576, Masjid Road, Jangpura,New Delhi 110014 Printed at Shivam Sundaram, E9, Green Park Extension, New Delhi, 110016

Editor: Colin Gonsalves, E-mail: [email protected], [email protected] Website: www.combatlaw.org

C O N T E N T S

PIL and Indian courts 65Though the PIL was originally intended to give access to those whowould otherwise have no voice, it is easily captured by articulate andwell organised interest groups

Sandra Fredman

Lok Adalats cannot be a solution 79

Faced with spiralling backlog of cases throughout the country, courtsstarted looking for 'improvisations'. Lok Adalats are result of theexperiments resorted by the stalwarts of the judicial system, says Rajiv Khosla in an interview to Abid Shah

Is judiciary biased against the poor? 73

The onset of globalisation and liberalisation are resetting not just termsof market and trade but priorities in the judicial arena too areundergoing significant changes. Hope ignited among poor and lessprivileged through the seventies by a series of epoch making rulings intheir favour by Supreme Court in India has taken a beating

Balakrishnan Rajagopal

Book Review 82

Calling a spade a spadeA retired IPS officer describes India as a seemingly democratic state that is highly militarised: a review by Colin Gonsalves

WORDS & IMAGES

Why US is the only 'Superpower' 83In a controversial book, John Perkins narrates a real life tale. His personal journey from the member of internationalcommunity of highly paid professionals who are employed to cheat poor countries around the globe to maintain USmonopoly. Eventually he calls himself as a former economic hit man and deconstructs international intrigue and corruption,the sinister mechanics of imperial manipulations and control

N Raghuram


Dear Editor, This is in reference to AaliyaAnjum's 'Wailing Woes' whereshe talks about issues that hauntthe besutiful paradise calledKashmir. Human Rights viola-tions in Kashmir are a dailynorm and it seems people havestarted to live wih this grimreality. The Indian governmentseems oblivious about the woesof people, especially women,who are the worst sufferers ofthese violations. Though manyhuman rights groups are work-ing in the area but their voicesare falling on deaf ears.

The governemnt needs tochange its policy towards thestate and look for an amicablesolution wherein people ofKashmir can live without anyfear and feel as much as part ofIndia as we are.

Priyanka Malhotra, Ludhiana

Dear Editor, This is in reference to article'Delhi's Tibetan Glitch' byBrahma Chellany. I agree with

authors views that India's sub-dued stance on Tibet has harmedthe Tibetan cause. In a recentdevelopment, when Dalai Lamawas being felicitated in NewDelhi, the government passedorders that ministers shouldabstain from the ceremony andtry to avoid Dalai Lama. This isdefinetely a move to please thecomrades of Communist China

so that they dont claim any partof Arunachal and manitain cor-dial relations with the Chinesegovernment. I would suggestthat India should take a stand onTibet and should try to mediatebetween the exiled Tibetans andChinese to come to an under-standing on autonomy at the earliest.

Ena Sindwani, Mumbai

Dear Editor,This is in reference to yourarticle, Exiled for life,September October 2007. Thearticle is a wonderful insightinto the history and lives ofTibetian refugees. The authorhas presented a detailed ver-sion of the sufferings of theTibetan refugees in India.Adding to this, the article also

highlights the apathy in whichthese refugees are treated bythe Indian government.

I would like to congratulatethe author for such an insight-ful piece that deals not onlywith refugee issues but alsodeals with different laws per-taining to refugee rights.

Priyadarshini, Madurai

L E T T E R S

Exiled Homeland


INDEPENDENT PEOPLE 'S TRIBUNAL

"We, the twelve jury mem-bers, have listened tofour days of testimony

and depositions from September 21to 24, 2007 by affected people,experts and academics from some 60grassroots, civil society groups andcommunities from all over India. Thepresentations covered 26 differentsectors of economic and social devel-opment, ranging in scope from themacro-economic impact of wideranging economic policies to testi-monies from representatives of com-munities said to have been harmedand impoverished by specific WorldBank financed projects. Our mem-bers include former justices of theIndian Supreme Court and HighCourts, lawyers, writers, scientists,economists, religious leaders, andformer Indian government officials.We note that the World Bank Delhioffice received an invitation to attendthe Tribunal two weeks in advance,but did not wish to participate in theproceedings.

"First and foremost, the evidenceand depositions we have witnessedpresents a disturbing and shockingpicture of increased and needlesshuman suffering since 1991 among

hundreds of millions of India's poor-est and most disadvantaged in ruralareas and in the cities. It is clear to usthat a significant number of Indiangovernment policies and projectsfinanced and influenced by the WorldBank have contributed directlyand/or indirectly to this increasedimpoverishment and suffering. Allthis has taken place while a minorityof India's population that constitutesthe middle class and rich has enjoyed

the fruits of an economic boom."The most disturbing leading

indicator for this suffering is thealarming increase in farmer suicidessince the 1990s. From 2001 to 2007alone, according to the Indian minis-ter of agriculture, 1,37,000 poorfarmers have killed themselves.These deaths are not random events;the evidence we heard points toincreasing financial pressures onfarmers all over India as a result of

An Independent People's Tribunal on the World BankGroup in India held in New Delhi gave the first everopportunity to affected people, experts and academics fromabout 60 grassroots civil society groups to be heard by ajury of eminent and distinguished retired judges, socialworkers and public leaders. Excerpts from jury'spreliminary findings

World Bank

unmasked

some or all of the following policies,such as: reduced subsidies from thecentre and states, higher prices forpoor farmers for irrigation water,electric power, and seeds; reducedsubsidies for agricultural inputs,reduced access to low interest loansfor the poor, and opening up of theIndian economy to an uneven play-ing field in international trade inagricultural commodities. India'sfarmers must now compete withimports from the heavily subsidisedfarms of the European Union andNorth America, at the same timewhen even the most meagre stateassistance for the poorest farmers isreduced. India was once self-suffi-cient in food production; its foodsecurity is now dependent onimports. It is clear to us that majorWorld Bank EconomicRestructuring, StructuralAdjustment, and Sector Loans havedirectly promoted and helped tofinance these economic policychanges which are a disaster formuch of India's more than 700 mil-lion rural inhabitants, and most dis-astrous of all for poor farmers.

"Other World Bank loans havepromoted the institution of user feesin the health and education sectors,as well as partial privatisation inthese sectors. Whatever the justifica-tion for these policies, we heard howin practice, they have further disad-vantaged the poor. The Bank is pro-moting legal and regulatory changesthe main focus of which appears tolessen the social and environmentalcompliance burdens for industry andinvestors, rather than protect the vul-nerable livelihoods and environ-ments of India's poor majority. Thenet effect of many Bank prescribedpolicy "reforms" appears to be thereorientation of the Indian State pri-orities from striving to secure a safe-ty net for the poor and vulnerable toproviding a safety net for largedomestic and international corpora-tions and investors.

"We heard witnesses from thepoorest Dalit and Adivasi communi-ties describe the deterioration fortheir communities from poverty todestitution because of forced dis-placement caused by World Bankfinanced projects. A number of theseprojects are notorious and communi-ties have sought redress for years:



Vice Chairman of the Kerala StatePlanning Board Professor PrabhatPatnaik in his deposition cited theexample of the Jawaharlal NehruNational Urban Renewal Mission(JNURM), which is a World Bankdesigned project. In the KeralaJNURM project, the state govern-ment, he said, was being forced toaccept a conditionality to reducestamp duties to 5 percent from theearlier 15-17 percent. To avail aloan of about Rs.1000 crores,Kerala would lose up to Rs.7000crores of government revenue.

Vinay Baindur of the Bangalore-based Collaborative for theAdvancement of Studies inUrbanism (CASUMM) showed evi-dence of how the KarnatakaEconomic Restructuring Loan(KERL) resulted in the conversionof a state government and itseconomy into a corporatised enti-ty meant to generate funds for"private sector and enterprisedevelopment". 'The $250 millionloan resulted in far reachingchanges; the closure/privatisationof the public sector, nearly twolakh permanent employees wereforced to take VoluntaryRetirement Scheme (VRS) pay-ments. The World Bank ordainedrestructuring process led to a steeprise in farmer suicides, many ofthose who committed suicide didso because they were unable to paythe arrears in power costs that weresuddenly slapped on them onaccount of power tariff hikes. "Thewithdrawal of subsidies for agricul-ture led to a sharp rise in the costsof cultivation", argued Baindur inhis deposition.

Jury member and scientist MeherEngineer said that the World Bankforced inappropriate technology onIndia such as incinerators especiallydamning. "Given the wellresearched evidence that I haveheard, it is hard to imagine any rolefor the World Bank in the environ-

ment sector, he said. "The Bank ispro-rich, pro-urban and anti-envi-ronment", he concluded.

In the 1990s, 20-30 percent ofWorld Bank loans in India went tothe energy sector. Orissa had thedubious distinction of being thefirst state to receive World Bankloans for restructuring the sector.Sreekumar N, from the Pune-based Prayas Energy Groupargued that based on World Bankadvice, Orissa spent upto Rs.306crores for foreign consultants,ignoring local expertise. The con-sultants recommended the pri-vatisation of distribution and theAmerican firm AES that took overdistribution in the central zoneand behaved in a high handedmanner and ultimately left thestate in 2001.

Nityanand Jayaraman of theChennai-based CorporateAccountability Desk in his desposi-tion before the jury said, "The Bankis perpetrating toxic colonialism byfunding discredited and pollutingtechnology interventions". As evi-dence he presented cases wherethe Bank has promoted the settingup of more than 88 CommonEffluent Treatment Plants, morethan 90 percent of which wereshown to have failed to meet envi-ronmental norms by the CentralPollution Control Board.

Wilfred D' Costa, general secretaryof the Indian Social Action Forum(INSAF) — one of the conveninggroups of the IPT — said, The tri-bunal has been useful since it hasseen a convergence of social move-ments, unions, academicians,researchers and struggle groupsfrom across the country. "Our nextsteps would be to use this plat-form to create a broad-basedpolitical struggle against neo-liber-alism and work towards an Indiawithout institutions such as theWorld Bank and the AsianDevelopment Bank."

Highlights of the IPT



the Bank's massive loans for thermalpower development in Singrauli inthe 1980s displaced many tens ofthousands of poor, who have soughteconomic rehabilitation andimprovement of toxic environmentalconditions, with no redress from theBank or its Indian government bor-rower, NTPC. We heard of the plightof hundreds of families impover-ished by displacement in the Bankfinanced Coal Sector RehabilitationProject, despite the claims of a sepa-rate Bank Coal Sector Environmentaland Social Mitigation Project.Although the Bank's ownIndependent Inspection Panel foundin 2002 that Bank management vio-lated its own environmental andresettlement policies on 37 counts,the Bank management has taken noeffective measures to ameliorate thecondition of these families. Theseexamples are only a small sample ofa massive pattern of forcible dis-placement of India's poorest andmost vulnerable populations forlarge-scale natural resources extrac-tion, infrastructure and urban pro-jects, a number of which have beendirectly financed by the Bank. TheBank has announced its intention toincrease its financing of large-scale

projects while at the same time thereis disturbing evidence of itswidespread failure to implement itsenvironmental and social safe-guards, as well as indications ofintentions to even dilute the effectiverigour of these safeguards.

"One of the disturbing impres-sions we gathered from the presenta-tions is that the bank seems to havedeveloped the art of making policieswhose safeguards are only on paper.It has developed a language game inwhich words like empowermentactually means disempowerment,sustainable means unsustainable,public-private partnesrship meansusing the public to promote the inter-ests of the private.

"It is impossible to do justice inour short preliminary statement tothe volume, scope and intensity ofthe scores of depositions, expert pre-sentations, and eye witness accountswe have heard over the past fourdays. The Tribunal will be publish-ing more detailed accounts, and wewill submit a more detailed set offindings and recommendations in afew weeks' time. What emerges is apicture of an institution whose influ-ence on the economic and socialpolicies of the Indian government is

much greater than the amount of itslending might indicate. The Indiangovernment, of course, shares at thevery least equal responsibility for allof the abuses we have witnessed,indeed a significant number of offi-cials in key ministries such asfinance and planning have eitherworked at the Bank or IMF, or sharetheir assumptions and biases.Together all bear considerableresponsibility for wide reachingpolicies and specific investmentswhich in the name of growth anddevelopment have had the cruelestimpact on the most vulnerablegroups in our society.

"We hold the Indian governmentaccountable and call for changes inthese policies. India and the interna-tional community must join to holdthe World Bank accountable for poli-cies and projects that in practicedirectly contradict its mandate ofalleviating poverty for the poorest."

—The jury members included: Amit Bhaduri, Meher Engineer,

Ramaswamy Iyer, Alejandro Nadal,Bruce Rich, Aruna Roy,

Arundhati Roy, Justice PB Sawant, SP Shukla, Sulak Sivaraksa,

Justice H Suresh and Justice Usha

Jury members listening to the civil society groups


TRAFFICKING

Poor Indian children arebeing freely traded across

the globe. A mercilessadoption mafia's overdrive

leaves authorities backhome clueless even as

Dutch Parliament initiatesprobe after a child from

Tamil Nadu reachesHolland, writes human

rights lawyer Geetha Devarajan from

Chennai

The recent judgment of theMadras High Courtdirecting the CBI to inves-tigate into the kidnappingof three children for inter-

country adoptions (ICA) once againbrings to light the breakdown oflegal mechanism. This coupled withvirtually no supervision of ICA bythe government and its agenciesleading to trafficking of children inthe name of ICA.

In May 2005, the Tamil Nadupolice discovered a trafficking rack-et involving individuals and agen-cies at various levels. These traffick-ers target street children, or kidsfrom poor families and those inmaternity wards of government hos-pitals, kidnap them and sell them toso-called adoption agencies foramount ranging from Rs 5,000 to Rs25,000 per child. According to thenewspaper reports, these traffickingmafia have allegedly sold 350 chil-dren to the Malaysian Social ServiceSociety, an agency involved in adop-tion, for over seven years.

Salya lost his four-year-olddaughter — kidnapped by a gangthat came by autorickshaw — whileshe was playing on the street.Kathirvelu lost his one-year-old son,who was kidnapped while theywere sleeping on the pavement.Both the families registered com-plaints with the local police. An FIRunder section "child missing" wasregistered in the year 1997. Thestolen children were sold toMalyasian Social Service Society and

Innocenceon

SALESALE


TRAFFICKING

they placed these two children inadoption to parents living inAustralia and Netherlands respec-tively. In both the cases the childrenwere traded through fabricated doc-uments, where another womanfeigned as the mother and stated thatshe was relinquishing the childrendue to personal hardships. Throughan order of the High Court the chil-dren were sent out of the countryand separated from the biologicalparents. While the FIRs lodged bythe parents remained pending withthe police, the adoption agency gotan order from the High Court toplace the children in adoption and toissue passports.

The parents who lost their chil-dren were not aware of the fact thattheir children were being given awayin adoption even as they franticallysearched for their child. The grimreality is that the adoption mafiacould use the legal forums viz. thesocial welfare department, the volun-tary coordinating agency and eventhe judiciary for their illegality. Theresponsibility of verifying the sourceof the child and checking whetherthe child was relinquished by theparents, or the child was stolen couldnot precisely be fixed upon any of thegovernment or private playersinvolved in the process of adoption.

Today there is no legislation gov-erning adoption, especially inter-country adoptions (ICA). The HinduAdoptions and Maintenance Actdeals with adoption between twoHindus. This Act also does not regu-late the inter-country adoptions. TheJuvenile Justice Amendment Act2006, defines adoption - "(a) "adop-tion" means the process throughwhich the adopted child is perma-nently separated from his biologicalparents and become the legitimatechild of his adoptive parents with allthe rights, privileges and responsibil-ities that are attached to the relation-ship". The Supreme Court tooknotice of child trafficking in the nameof adoption way back in 1982, when aletter written by Laxmikant Pandeycomplaining malpractices in intercountry adoptions was treated as aPublic Interest Litigation. A set ofguidelines were formulated by theSupreme Court to regulate both in-country and inter-country adoptions.The guidelines dealt with

destitute/abandoned children andchildren relinquished by the parents.In the guidelines, the Supreme Courtmade it clear that children should beplaced for ICA only if Indian parentsare not available and that every efforthad to be made by the agencies tofind placements for a child in anIndian family.

Neither the guidelines of theSupreme Court nor the subsequentguidelines of Central AdoptionResource Agency (CARA) dealt withthe convergence of the police depart-ment and the social welfare depart-ment, to check if the child placed foradoption has been reported as "miss-ing", before declaring children freefor adoption. Again there is interfacebetween final judicial stampingwhereby children are placed underthe custody of foreign parents underthe Guardians and Wards Act, there-by enabling the mafia to take the chil-dren out of their birthplace or thecountry. What is illegal at source gets

legalised finally by a judicial stamp.The convergence of these depart-ments is the urgent need in the pre-sent day context. The Madras HighCourt directed the CBI to investigateinto three cases of alleged traffickingand file a compliance report in threemonths. The CBI investigation maybring to light the mafia — local,regional and international — theirrelations, their modus operandi andprobably a few persons may evenface trial. But what happens to thoseparents who have lost their children?What about the children who aregrowing in an alien environmenteven while their biological parentsare alive and looking for them?What can one do about the emotionsof the children given in adoption out-side the country for losing their soci-ety and culture? Don't all thoseinvolved in these processes owe ananswer in the wake of ruining somany lives?

The model followed by theAndhra Pradesh government afterthe adoption scandal came to lightwill be a good model to be replicatedby other states and the central gov-ernment. Further the placement ofchildren in adoption is entirelythrough the state and private playersdo not have a role in adoption exceptto the extent of taking care of childrenabandoned or relinquished. The gov-ernment of Andhra Pradesh success-fully banned the inter-country adop-tion within the state. Today aprospective adoptive parent inAndhra Pradesh has to wait for twoyears to get a child in adoption as theadoptive parents today outnumberthe children free for adoption inAndhra Pradesh.

The urgent steps that need to betaken by all the agencies involved indetermining the future of a child, to beplaced in adoption, is to take certainprecautionary steps to minimise thepossibilities of trafficking in childrenin the name of adoption. They are:

to maintain a central police information cell of all miss-ing children by the state police department both at the district level and at the state level.

information about all the chi-dren whether abandoned/ relinquished or surrendered

The parents who losttheir children were notaware of the fact that

their children werebeing given away in

adoption even as theyfrantically searchedfor their child. The

grim reality is that theadoption mafia coulduse the legal forumsviz. the social welfare

department, thevoluntary

coordinating agencyand even the judiciary

for their illegality


TRAFFICKING

by their parents to be notified immediately to the nearest police station both by the child welfare agencies and by the child welfare committees.

a certificate from the central police information cell that there are no complaints pend-ing about the child placed for adoption should be part of the records along with the appli-cation before a court of law seeking orders for placing the child/children in adoption.

all cases of surrender/relin-quishment should be followed by DNA testing to check that the child is not stolen.

the photographs of the relin-quished parents should be part of the application, along with the photograph of the witnesses.

a certificate from CARA that no parents are available in India to adopt the child and that the child is free for ICA.

all applications for adoption both in-country and ICAshould be received, processed by a state authority/agency and the child welfare agencies should look after the welfare of the children alone and should not directly receive applications, process them.

payment of any processing fee should be to the state authority/agency and not directly to any child welfare agencies.

The Parliament of Netherlandsappointed a parliament committeeafter it came to know about the traf-

ficking of Kathirvelu's child and isinvestigating the whole question of

adoption from India. Do our union and the state gov-

ernments take stock of the disappear-ing child population? Are theyaccountable to the loss and trauma ofparents like Salya and Kathirveluand for the negligence and violationscommitted by various agencies viz.,police department, recognised place-ment agency, child welfare commit-tees, the voluntary coordinatingagency, the scrutinising agency,CARA, and finally the judiciarywhich must consider the suggestions3 and 6 and make them part of theirprocedures to relieve itself frombeing dragged into the negligence ofthe administrative machinery.

Neither the guidelines of the Supreme Court northe subsequent guidelines of Central Adoption

Resource Agency (CARA) dealt with theconvergence of police department and the socialwelfare department, to check if the child placedfor adoption has been reported as "missing",

before declaring children free for adoption

A grim future ahead


FARMERS' SUICIDE

With successive crop failure,increasing debts and no aidfrom the government, farm-

ers in Gujarat state are going theVidarbha way. Nearly 500 farmershave committed suicide in the lastfour years.

Ramesh Bhai Mangalpura, a 45-year-old farmer of Sarabgardad vil-lage in Rajkot district, killed himselfin August last year. In 2004, floodsdestroyed his crops. In 2005, Rameshlost his groundnuts crop due to lackof rain while in 2006, a fungal infec-tion wiped out any hope of a goodharvest. After an investment of overRs 55,000 in fertilisers, pesticides andirrigation, Ramesh yielded nothing.

"His heart sank when he sawblack fungal infected flowers on Jeerushrubs. He once said: 'All my hardwork has gone down the drain, whatI will do now, who will give me afresh loan?' says Prabhaben, 40-year-old widow of Ramesh.

"One night he refused to have hismeal, the next morning he commit-ted suicide," says Prabha.

Every year farmers have to repaybank debts in March, or they aredenied new loans. Plus, rates of inter-est on previous loans go up.

Ramesh had taken loans from hisrelatives, the local self-help group

and a government bank. He haddefaulted on his payments andneeded money for his daughter'smarriage.

He owned a small plot of 2.5 acresand had rented another 4 acres for

All is not well with the 'vibrant' Gujarat. Almost 500farmers have committed suicide in the state since 2003.More and more debt-ridden farmers are taking thisextreme step as crops fail repeatedly and governmentremains apathetic to their plight, reports Anjali Lal Gupta

Driven to desperation


FARMERS' SUICIDE

Rs. 20,000 to try to meet the family'sbasic needs. But produce from all hisland was almost zilch. Seeing no wayout Ramesh Bhai Mangalpura con-sumed pesticide.

TToouugghh ttiimmeessFarmer suicides are a growing cri-sis in Gujarat. For three consecutiveyears, farmers say that they havebeen battling not only natural dis-asters but also state's apathy totheir plight.

"The authorities release excessivewater from dams every year, and thatleads to floods. Cost of seeds, fertilis-ers, irrigation and labour have goneup while subsidies are being cut. Andwe do not get due rates for our yield,"says Partibhaben whose husband hadalso committed suicide in 2006.

OOccccuuppaattiioonn ooff lloossssFarmers are finding it difficult to sur-vive only on agriculture. Their woesare captured well in the local idiomthat says, "kheti etley khotno dhandho(farming is an occupation of loss)."

Reasons ranging from financialdebts and failed crop to illness andjilted relationships have been citedas the reasons for this drastic stepby the state director-general ofpolice (DGP).

News reports have quoted thepolice as saying that 6,055 farmersdied 'accidentally' or for 'unex-plained reasons'. 'Accidental' deathsinclude 'consuming pesticide by mis-take to cure a headache' or 'droppingdead while spraying insecticide'.

Local activist Bharatsinh Jhala hasused the Right to Information (RTI)Act to get details from the state

police on farmers' suicides anddeaths and also compensation fromthe state agriculture department.Jhala is part of an ActionAid fellow-ship scheme for emerging communi-ty leaders tackling poverty.

"I am myself a farmer. Farmer sui-cides are an emotional issue for me.A suicide committed by a farmer in aneighbouring village touched me tothe core," says Jhala.

It was then he decided to invokethe RTI. He says, "I wanted to bringout the contrast between the stategovernment's claims of a 'VibrantGujarat' and the actual situation of itsfarmers."

Jhala says that according to theagriculture department, compensa-tion has been given to 1,909 families.That means 4,146 families have notbeen compensated for their loss.Newspaper reports say that over halfof the 6,055 claims for compensationhave been rejected.

According to Jhala, only 20 per-cent of the claims have been hon-oured. "The state government hasbeen paying a premium for farmers'insurance, but one wonders whyonly a few claimants receive pay-outs,'' he adds.

RRiigghhttffuullllyy oouurrss"We are asking the government toprovide compensation for losses overthe last three years, which have driv-en families to desperation," addsPratibhaben.

Government also needs to sup-port farmers in restoring land affect-ed by floods. Farmers are also callingfor government to immediatelywaiver outstanding loans.

Vidarbha'sdying woes

Mumbai High Court's Nagpurbench informed Maharashtra

government that the present reliefpackage has failed to stop farm sui-cides in the debt-ridden Vidarbha.The Court asked the administrationto make urgent changes in themethodologies so that the relief aidwas directly given to the distressedfarmers in order to slow down farmsuicides. Instead of taking HighCourt order in a true sense ofhumanity and principles of civilgovernance, the Maharashtra gov-ernment in its official publicationLokrajya carried that relief pack-ages are 100 percent successfuland properly implemented. But theoffice of the relief commissioner inAmaravati has very gloomy pictureand figure of total farm suicidesafter relief package was announcedin six districts of West Vidarbha asper official record is 1720.Moreover, in 2007 the official fig-ure of farm suicides in six district ofVidarbha has reached 923.

Vidarbha Janandolan Samiti(VJAS), urged the Maharashtragovernment to consult to cottonfarmers for relief aid. After receiv-ing drum-beating remark that pre-sent relief methodologies failed tostop farmers suicides in Vidharbha,chief secretary of Maharashtraasked local officers to suggest newmethodologies in relief package.However, Kishor Tiwari, local farmactivist said, "It is ridiculous to con-sult the same non-functional cul-prits for making new changes inrelief package to stop farmer sui-cides. Infact, now farmers shouldbe consulted on what their hard-ships are and they should beaddressed to relieve distress andfarmer suicides thereby stop." Heurged the Maharashtra ChiefMinister Vilasrao Deshmukh forrestoration of the price of raw cot-ton at Rs. 2,700 per quintal andcomplete loan waiver other than providing food security, health care, free education and employment.

The official Vidarbha farmsuicides table

Months Farm Months Farm2006 suicides 2007 suicidesJuly 109 January 99August 120 February 107September 156 March 113October 160 April 97November 125 May 102December 127 June 82

July 75August 95September 106October 47

Total 797 922

'The authoritiesrelease excessive

water from dams everyyear, and that leads tofloods. Cost of seeds,fertilisers, irrigation

and labour have goneup while subsidies are

being cut'


POLICY

In twelve years from 1991-92 to2003-04 (the latest year for whichfigures are available), there has

been absolutely no addition to netirrigated areas by canals as reportedby union ministry of agriculture,based on actual field data fromstates. In the period from April 1991to March 2004, the country has spentRs 99,610 crores on major and medi-um irrigation projects with the objec-tive of increasing canal irrigatedareas. What the official data show isthat this whole expenditure has notled to addition of a single ha in thenet irrigated area by canals in thecountry for the whole of this 12-yearperiod. In fact, the areas irrigated bycanals have reduced by a massive3.18 m ha during this period. Thisshould be cause of some very seriousconcerns and the ministry of waterresources (MWR), the states and theplanning commission will have toanswer some difficult questions.

The then Prime Minister RajivGandhi speaking on big irrigationprojects to state irrigation ministers

in August 1986 had said, "Perhaps,we can safely say that almost no ben-efit has come to the people fromthese projects. For 16 years, we havepoured out money. The people havegot nothing back, no irrigation, nowater, no increase in production, nohelp in their daily life." Only changethat quote would require today isremoval of the word Perhaps.

In this period, the MWR has beenclaiming (e.g. in the working groupreport on water resources for theeleventh Plan) that they have createdadditional irrigation potential of8.454 million ha and utilisation ofirrigation potential of additional

6.297 million ha, but the data fromthe ground raise questions aboutthese claims. The MWR has beenusing such claims to push more allo-cations for investment in major andmedium irrigation projects. TheMWR has proposed, for example,that in the eleventh Plan, an alloca-tion of Rs 1,65,900 crores should bedone for the major and medium irri-gation projects. The available factsshow that this will be a total waste ofpublic money.

The net irrigated area by canalsall over the country was 17.79 millionha in 1991-92. In all the years there-after, till 2003-04, the latest year for

All India Net Irrigated Area- Canal

14000000

15000000

16000000

17000000

18000000

1988

-89

1989

-90

1990

-91

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

Year

Ha

Irrigation policy incomplete mess

Big irrigation projects are bringing small results. Yet billions of rupees drained outin the name of expanding irrigated area, writes Himanshu Thakkar


POLICY

which the data is available, the netirrigated area by canals has not onlybeen lower than 17.79 m ha, but hasbeen consistently falling, as can beseen from the graph above.

So even though it is claimed thatduring the period 1991-2004 total of210 major and medium irrigationprojects have been completed, therehas been no addition to the net irri-gated area. This is another reveal-ing statistic that should worry allconcerned. Incidentally, it shouldbe noted that the projects add irri-gated areas even in years beforethey are completed. What thismeans is that some projects thatwere completed after March 2004could also have added irrigatedareas in the period we are dis-cussing and some of the projectscompleted as listed above may haveadded some of their irrigated areasbefore the reporting period.

Rs. 99,610 crores spent, no benefitduring the period from April 1991 toMarch 2004, the government hasspent the following amounts onmajor and medium irrigation pro-jects. This is the total expenditure onthese projects including that by thecentre and the states.

It is remarkable that the figures ofnet irrigation areas were available to

the working group and to the min-istry of water resources and theyknew that the net irrigated areas bycanals have been dropping for someyears. And yet they took no note ofthat in the working group report andin fact made claims as stated above topush for the case for additional fund-ing of Rs 1,65,900 crores for majorand medium irrigation projects foreleventh Plan.

It is true that this analysis wouldhave benefited from similar figuresof gross irrigated areas by canals atall India level during the same peri-od. Unfortunately these figures are

not available, though we are trying toget them. In the meantime we notethat with so much investment, com-pletion of so many projects (whichare necessarily in new areas not ben-efiting from old irrigation projects)and the claims of achievement by theMWR, net irrigated areas by canalsshould be increasing, not decreasing.What we have achieved, instead is areduction in net irrigated area bycanals from 17.79 m ha in 1991-92 to14.61 m ha in 2003-04 (the latest yearfor which data is available). This is areduction of massive 3.18 m ha,almost double the planned irrigation

The detailed figures of net irrigated area by source for the period 1990-91 to 2003-04 is given in the table below.

NNeett iirrrriiggaatteedd aarreeaa bbyy ssoouurrccee,, AAllll IInnddiiaa,, 11999900--22000044 ((HHaa))Canals Tube Wells Other Wells Total GW Tanks Other Sources Total

1990-91 17453000 14257000 10437000 24694000 2944000 2932000 48023000

1991-92 17791000 15168000 10869000 26037000 2991000 3048000 49867000

1992-93 17457000 15814000 10569000 26380300 2854000 3599000 50293000

1993-94 17111000 16376000 11386000 27762000 3152000 3427000 51452000

1994-95 17280000 17190000 11722000 28912000 3276000 3533000 53001000

1995-96 17142000 17937000 11860000 29797000 3111000 3460000 53510000

1996-97 17262000 18410000 12408000 30818000 3343000 3626000 55049000

1997-98 17092000 18432000 12448000 30880000 3100000 3491000 54563000

1998-99 17554697 20627894 13050073 33677967 2944266 3266846 57443776

1999-00 17278592 20842969 13036710 33879679 2686183 2857897 56564414

2000-01 14229380 21394279 10855953 32250232 2490856 2769566 51740034

2001-02 16240609 25161523 9818183 34979706 2349073 2594310 56163698

2002-03 14347064 18035551 8729653 33765204 2340000* 2532891 52985159

2003-04 14605419 25676525 9513092 35189617 2440000* 2707024 54942060

*: Assumptions based on trends.Source: 1. CWC's "Water and related statistics", various years. 2. Ministry of Agriculture, Agricultural statistics and land use statistics, various years 3.Website of Ministry of Agriculture, Government of India, http://agricoop.nic.in/Agristatistics.htm and http://dacnet.nic.in/lus/dt_lus.aspx

It is clear from the above table that the Net Irrigated Area by all sources increased from 48.02 m ha in 1990-91 to 57.44 mha by 1998-99 and remained below 57 m ha thereafter, see the graph below.

Years Irrigation Projects completed

Major Medium Total

1991-92 3 6 9

1992-97 9 48 57

1997-2002 30 66 96

2002-04 18 30 48

TOTAL 60 150 210

Number of M&M irrigation projects completed during 1991-2004

210 projects completed, no benefit In the period 1991-92 to 2003-04, 210 majorand medium irrigation projects have been completed as per the 11th Plan workinggroup report on water resources, as per the break up given below:


POLICY

from the controversial SardarSarovar Project, this is by way ofillustration.

In majority of the years during1991-2004, the rainfall has been nor-mal or above normal as can be seen

from the figures in the table. So itcannot be claimed that this trend isdue to low rainfall.

Attempt to underestimategroundwater irrigation figures, theworking group report for water

All India- Gross Irrigated Area By All Sources

65

70

75

80

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

Year

Are

a (M

Ha)

All India- Net Irrigated Area By All Sources

48

50

52

54

56

5819

90-9

1

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

Are

a (M

ha)

Similarly, gross irrigated area (if two irrigated crops are taken in year ona given area, that area is counted twice in estimation of gross irrigated area,but once in estimation of net irrigated area) across all sources has beenincreasing during the period and reaching peak value in 1999-2000 as seenin the graph.

This increase in all India net and gross irrigated areas have been possibledue to the increase in groundwater irrigated area from 24.69 m ha in 1990-91to 35.19 m ha in 2003-04 (see the graph). In fact the increase in groundwaterirrigated area has helped the MWR suppress the reality of non performance ofthe big dams.

All India Net Irrigated Area- GW

20000000

25000000

30000000

35000000

40000000

1990

-91

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

Year

Ha

Figures of gross (& net) irrigated areas from canals for some six major states(Andhra Pradesh, Tamil Nadu, Karnataka, Rajasthan, Madhya Pradesh includingChhattisgarh and Jammu & Kashmir) for the period under discussion for whichnecessary data is available also indicate this trend as can be seen from thegraphs. These graphs show that even gross irrigated area by canals has showna consistent decreasing trend, even though we do not have nationwide figuresfor gross irrigated areas by canals for these years.

So even though it isclaimed that during

the period 1991-2004 total of 210

major and mediumirrigation projects

have been completed,there has been noaddition to the net

irrigated area. This isanother revealing

statistic that shouldworry all concerned


POLICY

resources for the eleventh Plan hasattempted to underestimate the con-tribution of groundwater irrigation.This can be seen from the followingfigures for the area added for poten-tial created and utilised fromgroundwater for the period from1991-92 to 2003-04 in the report of theworking group.

As against the figures of potentialcreation of 7.169 m ha and potentialutilisation achievement of 4.754 bygroundwater during the 1991-2004period, the actual addition of net irri-gated area during the period hasbeen 9.15 m ha. If we estimate addi-tion to the gross irrigated area duringthe period from groundwater, thefigure comes to 12.54 m ha, almostthree times the estimate of potentialutilisation by the working group

headed by secretary, union ministryof water resources.

The union water resources min-istry also seems to be indulging inexaggeration in potential utilisationof canal irrigated areas. For example,according to the working groupreport for the eleventh Plan,Maharashtra had irrigated potentialutilised from major and medium pro-jects to the extent of 2.147 m ha in2001-02 and 2.313 m ha in 2005-06.When we look at the benchmarkingreport for irrigation projects,Government of Maharashtra for2005-06, we see that according to thestate government, Maharashtra hadachieved utilisation of irrigationpotential from major and mediumproject to the extent of 1.25 m ha in2001-02 and 1.617 m ha in 2005-06,

both figures are way below the fig-ures claimed by the eleventh Planworking group report. The questionarises, why should the workinggroup, chaired by secretary, unionministry of water resources, exagger-ate the figures of potential utilised byM&M projects?

Some of the reasons for this situa-tion include: siltation of reservoirsand canals, lack of maintenance ofthe irrigation infrastructure, waterintensive crops in the head reachesand non-building of the canals andover development (beyond the carry-ing capacity) of projects in a basin,water logging and salinisation, diver-sion of water for non-irrigation uses.Some other possible reasons couldinclude: increased rainwater harvest-ing and groundwater use in thecatchments of the major irrigationprojects, increased groundwater usein the canal command areas. In somecases, the additional area added bynew projects is not reflected in thefigures as the area irrigated by olderprojects (due to above reasons) isreducing. Indeed the World Bank's2005 report India's Water Economy:Bracing for a Turbulent Future showedthat annual financial requirement formaintenance of India's irrigationinfrastructure (which is largest in theworld) is Rs 17,000 crores, but lessthan 10 percent of that amount is

And yet they took nonote of this reduction

in canal irrigatedareas in the workinggroup report and infact made claims asstated above to push

for the case foradditional funding ofRs 1,65,900 crores

for major and mediumirrigation projects for

11th Plan


POLICY

available and most of it does notresult in physical maintenance of theinfrastructure. In some over devel-oped basins, the new projects are likezero sum games, since they would betaking away water for some of thedownstream areas. Optimistichydrological projections, which isalmost universal in big irrigationprojects, would mean that projects inany case would not provide the pro-jected benefits.

A number of eminent experts inthis area whom we consulted tocheck if this trend is indeed happen-ing, said that yes, this is indeed true.Some such eminent experts includeplanning commission member BNYugandher, Prof VS Vyas, formerplanning commission member L CJain, former secretary union min-istry of water resources,Ramaswamy Iyer, well known irri-gation expert Dr Tushar Shah, for-mer World Bank consultant ProfRPS Malik, among others.

Some officials of the ministry ofwater resources justify big irrigation

A P- Net & Gross Irrigated Area- Canal

1100000

1300000

1500000

1700000

1900000

2100000

2300000

250000019

91-9

2

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05

Year

Ha

Gross CanalNet - Canal

Ka rna t ak a - N et & Gro ss I rr ig at e d A re a- C anal

740000

840000

940000

1040000

1140000

1240000

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05

Year

Ha

Gross - CanalNet - Canal

TN - Net & Gross Irrigated Area- Canal

440000

540000

640000

740000

840000

940000

1040000

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05Year

Ha

Gross- CanalNet - Canal

Years Expenditure on Expenditure on TotalMajor & medium Command Area

Irrigation projects Development

1991-92 2729 318 3047

1992-97 21072 2146 23218

1997-'02 49289 1519 50808

2002-04 22049 488 22537

TOTAL 95139 4471 99610

Expenditure on M&M irrigation projects during1991-2004

(Rs Crores)

Karnataka - Net & Gross Irrigated Area- Canal


POLICY

projects, arguing that increase ingroundwater irrigation becomes pos-sible because of recharge of ground-water by canal irrigation. This isstrange proposition. If groundwaterrecharge is an objective then canalirrigation is not the best option toachieve that objective.

Secondly, Dr Tushar Shah ofInternational Water ManagementInstitute says that hardly 12 percentof wells are in canal commandareas. In a paper presented at anational workshop on interlinkingof rivers in Delhi in October 2007,Dr Shah et al say, "a substantial partof the groundwater irrigated areagrowth in the last decade is in dis-tricts outside the command areasand show no significant spatialdependence with surface irrigatedarea growth." It is clear that big irri-gation projects cannot be justified inthe name of increasing groundwaterrecharge by canals.

These findings have graveimplications. Firstly, they veryclearly imply that the thousands of

crores the country is spending eachyear on big irrigation projects is notleading to any additional net irri-gated area. Secondly, the realincrease in irrigated area is all com-ing from groundwater irrigationand groundwater is the lifeline ofirrigated agriculture. Thirdly, infact these futile investments of Rs99,610 crores not adding any irriga-tion may be the reason behind theslackening of the agriculturegrowth rate India has experiencedover the last decade. Forthly, Rs14,669 crores spent on theAccelerated Irrigation Benefits

Programme (AIBP) between April1996 (when the programme started)to March 2004 (the period we arediscussing) has not helped add anyadditional irrigation area, theclaims of MWR that AIBP hasadded 2.66 m ha of additional irri-gation potential not withstanding.AIBP clearly needs to be scrapped.Lastly, this raises many account-ability issues and those responsiblein MWR, planning commission andstates will have to answer for a lot.The Bharat Nirman Yojana, thatplans to add one crore ha irrigatedarea during 2005-09 also needs to

MP +CG - Net & Gross Irrigated Area- Canal

1400000

1500000

1600000

1700000

1800000

1900000

2000000

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05Year

Ha


Rajasthan - Net & Gross Irrigated Area- Canal

900000

1100000

1300000

1500000

1700000

1900000

2100000

2300000

250000019

91-9

2

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05

Year

Ha


J&K - Net & Gross Irrigated Area- Canal

270000

290000

310000

330000

350000

370000

390000

410000

430000

1991

-92

1992

-93

1993

-94

1994

-95

1995

-96

1996

-97

1997

-98

1998

-99

1999

-00

2000

-01

2001

-02

2002

-03

2003

-04

2004

-05Year

Ha


be urgently reviewed, else, a lot ofmoney and precious otherresources will be wasted.

This trend indicates that instead ofspending money on new M&M irriga-tion projects, the country would bene-

fit more (at lesser costs and impacts) ifwe spend money on proper repair andmaintenance of the existing infrastruc-ture, taking measures to reduce silta-tion of reservoirs and at the same timeconcentrating on rainfed areas.

On groundwater front, we needto make preservation of existinggroundwater recharge systems andaugmentation of the same should beour top priority. Weeding out theunviable investments from the ongo-ing M&M irrigation systems needs tobe done so that good money (not yetspent) is not thrown after bad money(spent on unviable projects). In caseof some of the ongoing projects, itmay be more profitable to review theprojects to reduce further invest-ments and impacts.

Even as the planning commissionfinalises the eleventh Plan, this is agolden opportunity to make radicalchanges in our water resources devel-opment plans. If we miss this oppor-tunity, the combined impacts of thewrong priorities we have pursued sofar and the global warming will resultin we having neither the waterrequired for the people or the econo-my, nor the cash to maintain and sus-tain the existing benefits, as the 2005World Bank report also concludes.

—The author works with the SouthAsia Network on Dams,

Rivers & People


POLICY

Years Potential created Potential utilisation achieved

1991-92 1.635 1.55

1992-97 1.91 1.45

1997-2002 2.50 0.85

2002-2004 1.124 0.904

TOTAL 7.169 4.754

Irrigation potential created and utilised fromgroundwater sources during 1991-2004

(m ha)

Sr No Year Country wide SW monsoon (June-SSept) rainfall as % of

normal rainfall

1 1991 91

2 1992 93

3 1993 100

4 1994 110

5 1995 100

6 1996 103

7 1997 102

8 1998 106

9 1999 96

10 2000 92

11 2001 92

12 2002 81

13 2003 102

Rainfall during 1991-2004

Source: Agricultural statistics at a glance, Union Ministry of Agriculture,August 2004

Years Potential created Potential utilisationachieved

1991-92 0.41 0.425

1992-97 2.21 2.13

1997-2002 4.10 2.57

2002-04 1.734 1.172

TOTAL 8.454 6.297

Achievement of irrigation potential creation andutilisation by M&M projects during 1991-2004

The Working Group report for the 11th Plan claims that during the period, totaladdition to the irrigation potential created and irrigation potential utilisation frommajor and medium irrigation projects was as given in the table below.

(m ha)

This trend indicatesthat instead of

spending money onnew major and

medium (M&M)irrigation projects, thecountry would benefitmore (at lesser costs

and impacts) if wespend money onproper repair and

maintenance of theexisting infrastructure,

taking measures toreduce siltation of

reservoirs and at thesame time

concentrating onrainfed areas


LAW OF SECRECY

History has taught us that it isoften internal decadence andcorruption and not external

aggression that has resulted in thedestruction of many nations.Decadence and corruption stem fromopaque and draconian laws, dispos-sessing people of their rights.Societies that compromise the free-dom to know, limit the choice of thepeople and cripple their right todecide. Transparency on the otherhand opens the doors to progressand empowers people on a just basis.The need for transparency in govern-

ment functioning is a basic tenet ofdemocratic governance. Importantly,information belongs not to the State,the government of the day or civilservants, but to the public.

One such opaque law is theOfficial Secrets Act, OSA for short.This Act is of colonial - 1923 -- vin-tage. It was introduced in Englandafter the Marvin (1878) andAnderson (1889) affairs. It wasobserved that common law wasinsufficient when it came to prose-cuting spies. The spies merely bor-rowed documents and there was no

element of theft involved. Therefore,the Officials Secrets Act of England1889 was introduced. This law wasreplicated in India in 1923. In UK, theOfficials Secrets Act of England 1889was used as a resistance to the free-dom of information legislation there-by creating a climate of secrecy incivil services, which greatly ham-pered the efforts of those whowished to obtain and publish infor-mation about the working of the gov-ernment. However although in 1989in England the law was changed,both in India and Pakistan the impe-

The secret factorThe official secrecy law brought in yore by the British has been preferred by powers-that-

be until this day to deprive people of their right to know and selectively use it as andwhen it may suit the State despite fears of this coming in the way of people's right to

information, writes Jai Singh


LAW OF SECRECY

rial law of official secrecy continues.As stated above the law was ini-

tially designed by the British to pro-tect the executive and to develop astrategy to ban dissemination of offi-cial information to the public. Onlytop government officials/civil ser-vants had access to these classifieddocuments. This same law wasduplicated and enacted by the Indianlegislature as purely a consolidationmeasure. However after the Indo-Pak war the ambit of this act was con-siderably widened simultaneouslyincreasing the penalties and facilitat-ing prosecution.

The most surprising fact is thattill date there are very few prece-dents relating to this act. In a judg-ment passed by the Delhi High Courtit was held that even an informationwhich may not be secret but whichrelates to a matter, the disclosure ofwhich is likely to affect thesovereignty and integrity of the Stateor friendly relations with a foreignstate or useful to an enemy is anoffence under Section 3 of OSA. InNand Lal More Vs. the State, budgetleaks were held to fall within theambit of Section 5 . In Sama AlanaAbdulla Vs. State of Gujarat , theSupreme Court, affirming the viewtaken by the Calcutta High Court inSunil Rajan Das Vs. State , held thatthe word 'secret' in clause (c.) of sub-section (1) of Section 3 qualifies onlythe words "official code or password"and not "any sketch, plan, model,article, note, document or otherinformation." Therefore, a sketch,plan, model, article, note or docu-ment need not even be secret in orderto avail of the protection under theAct. Any sketch, plan, model, docu-ment, etc., as the government deter-mines to be an 'Official Secret' willtherefore avail of the protectionunder the OSA. This was furtherupheld in Govt. of NCT of Delhi Vs.Jaspal Singh . The provisions of sec-tion 3(2) dealing with presumptionor burden of proof are also onerousas they practically deny any defenceto the accused .

Taking into consideration whathas been stated above a questionarises as to whether such a lawshould at all be in existence when thecitizens of the country are demand-ing transparency and accountabilityin the daily functioning of the gov-

ernments. This has arisen due to thelarge-scale corruption, which is sorampant in India. Although Indiaboasts of being the largest democracyin the world on paper, demands arebeing made for a participatorydemocracy so that people can actual-ly participate in the democratic pro-cess. The Vohra Committee Report of2003 speaks of rampant corruption atall levels of governance from top tobottom. The judiciary has too joinedthis elite list. Nexus between politi-cians and criminals has been provedto exist, with the bureaucracy play-ing an active role.

Similarly religious fundamental-ism is once again on the rise in thecountry. Incidences of communal vio-

lence show that these forces have noregard for the basic constitutionalcommitments of the country. It is notjust secularism but democracy that isat stake. The police and the localadministration, rather than protectingthe victims of the minority communi-ties, get involved and help in the com-munal carnage. The executive, andeven the judiciary, have tilted mostlyin favour of permitting the uniformedforces to break the law of the landwith impunity even to kill, especially

in times of perceived threats tonational integrity. The recent convic-tions of the police officials in Gujaratas well as Punjab lend credibility tothe public belief that the police is sup-porting and abetting communal polit-ical parties and criminals in instigat-ing riots and gruesomely and brutallykilling innocent people.

Therefore, is it justifiable for anAct such as the OSA to exist, when itis evident that these laws are regular-ly misused by corrupt highly placedofficials to target minority groups forthe purpose of exploitation.

The second AdministrativeReforms Commission has recom-mended that the Official Secrets Act,1923, be repealed, as it is incongru-ous with the regime of transparencyin a democratic society. Chairman ofthe Commission, Veerappa Moily,opined that safeguards for Statesecurity should be incorporated inthe National Security Act. The latestexample of the misuse of the law isthe case of Major General (retired) VK Singh who was charged under theAct for writing on corruption in theRAW. This case bought into limelightthe direct conflict between the OSAand the Right to Information Act.

The Chief InformationCommissioner Wajahat Habibullahin his statement to the press said,"The OSA is a colonial law that pro-tects the government from the public.In a democracy, the public is the gov-ernment. Earlier, OSA was the guid-ing principle in terms of custody ofinformation held by the government.Now custody of information held bythe government has been given to theRTI Act."

The recent raids by the CentralBureau of Investigation on the houseof a retired officer of the research andanalyses wing for alleged violationsof the Official Secrets Act has igniteda public debate on the role of this Actin preventing greater openness andtransparency in government.Although Mr. Wajahat Habibullah onbeing asked if the OSA was a bottle-neck in RTI success, he has made itclear that the RTI will prevail if thereis a direct conflict between RTI andOSA, the question as to whether OSAought to be scrapped or not stillremains open.

—The writer is a lawyer with HRLN

The recent raids bythe Central Bureau ofInvestigation on the

house of a retiredofficer of the

Research & AnalysesWing for allegedviolations of the

Official Secrets Acthas ignited a public

debate on the role ofthis act in preventinggreater openness and

transparency ingovernment



New eyes for new

Democracy to Burmese is not a onedimensional, monochrome animal to beadmired in a glorified zoo but a multi-coloured bird set to fly free for all tosavour and see. Satya Sagar explainshow in Burma it's not just elections butalso environment, gender, race, diversityand the big 'realpolitik' stuff

BURMA

If sheer sacrifice of body, mindand soul for a noble cause wereconvertible into hard currency

Burma's legions of pro-democracywarriors would be among the richestcitizens in the world.

However, in reality Burmese hap-pen to be among the poorest on theplanet which is only a reflection ofhow money, historically, has alwaysbeen a measure of dead, inanimateproperty and not of breathing peopleand the living processes they create.

And yet, for all their great sacri-fices the saga of the Burmese strugglefor democracy seems to run like anold horror movie one that has beenseen too many times before. A copy-book, brutal dictatorship facingagainst classic people's uprising-producing lots of pain and sufferingbut too few victories for the latter.

Why aren't the Burmese peoplewinning in their battle for democra-

cy and managing to bring aboutregime change despite all theirvaliant efforts? What will it reallytake to achieve a transition todemocracy in this seemingly haplessnation stuck for decades under oneof the most brutal ruling classes inmodern times?

The record is so dismal that someBurma watchers have glibly predict-ed that it is difficult to think of thecountry's future without the militaryhandling the levers of power in oneway or the other. Even worse, theyclaim the country will fall apart if themilitary is not in the driver's seat orat least close enough to bark orders.

I think they are completely off themark with their grim prognosis, mis-led among other reasons, by theirsimplistic equation of democracywith parliamentary elections and ahandful of its associated institutions.A better understanding of the

Burmese experience really lies ingoing beyond short-term, media-driven notions of success and failureof mass movements.

In fact, the good news that is cry-ing out to be recognised today is thatBurma's brave activists—despiterepeated setbacks—are forgingthrough their struggles the founda-tions of a democratic society thatmay well go on to become Asia'sfinest. A more nuanced view of thehistory of democracy around theworld shows that the long-termprospects of building a genuinelydemocratic Burma appear extremelypromising for a variety of reasons.

The first and foremost one is sim-ply the participation of more andmore ordinary Burmese in the fightfor democratic rights even if the pricemeans certain imprisonment, injuryor even worse — brutal murder.

The recent demonstrations in



Burma against the military regime,that saw several hundred thousandpeople hit the streets in towns andcities across the country, were carriedout under some of the most political-ly repressive conditions in the world.While Buddhist monks were at theforefront the movement reallyderived its power from the supportextended by citizens from all walksof life.

In contrast, almost a century ago,the first stirrings of revolt againstBritish colonial rule involved only ahandful of Buddhist monks and stu-dent activists. Later in the thirtiesand forties while Burma's legendary'thirty comrades', led by Aung SanSuu Kyi's father General Aung San,steered their nation to independencefrom both British and Japanese rule,all this was done with little participa-tion from the bulk of the population.

In 1948, when Burma became afree nation, the deeply authoritarianstructures of both feudal, traditionalsociety as well as the newly importedmachinery of the nation-stateremained unchallenged by both lead-ership and ordinary citizens alike.

This combined with the weaknessof the anti-colonial struggle and theresulting absence of a democraticpolitical culture meant that despiteadoption of multiparty electionsBurmese democracy and the institu-tions it spawned were on shaky, slip-pery ground.

By 1962, using the excuse of 'pre-serving national unity', followingdemands by Burma's ethnic minori-ties for greater autonomy, theBurmese military managed to takeover the young nation. Since then ithas tightly held on to power througha mix of high intrigue and nakedforce.

The military dictatorship has nothad an easy time all these yearsthough. Apart from inheriting thearmed insurgencies led by theBurmese Communist Party and vari-ous ethnic rebel groups in the hillsand forests, the junta has faced waveafter wave of protest from studentactivists in the urban areas.

The biggest uprising till date wasof course the one in 1988 that unfor-tunately for all its intensity failed todislodge the regime from power. Thedictatorship was however forced tohold national elections in 1990,

which they lost by massive margins,underlining their complete lack oflegitimacy forever.

It is true the military rulers man-aged to claw their way back andrecoup some losses since then,thanks mostly to external supportfrom the ASEAN group of nations,China and others interested in theloot of Burma's treasure trove of nat-ural resources. The ceasefire agree-ments signed with various ethnicrebel armies following the break upof the Burmese Communist Partyalso brought some respite to theregime.

But, all this while opponents ofthe Burmese junta were not sittingidle widdling their thumbs. Whilethe latest round of demonstrations inBurma has been dubbed as being'spontaneous' by the media in realitypreparations for the showdown havebeen on for months if not a few years.

Under very difficult circum-stances thousands of young and oldactivists have been carrying out pro-paganda and organisational workwithin the belly of the beast in myri-ad ways helping achieve — bit by bit-what Aung San Suu Kyi famouslycalled 'Freedom from Fear'.

There has been of course theclever use of new technologies suchas mobile phones and the internetbut some of the methods used—likeinvocation of black magic curses orspreading of subversive jokes aboutthe junta—are difficult to understandas 'political activity' by many out-siders. Within Burma though theyfind resonance among ordinary folkand manage to rattle the highlysuperstitious and image-consciousmilitary rulers.

The recentdemonstrations inBurma against the

military regime, thatsaw several hundredthousand people hitthe streets in towns

and cities across thecountry, were carried

out under some of themost politically

repressive conditionsin the world. While

Buddhist monks wereat the forefront, the

movement reallyderived its power fromthe support extended

by citizens from allwalks of life



Last year in October, for example,the 88 Generation Students led by thelegendary Min Ko Naing launchedthe 'White Expression' and called for'national reconciliation' and the free-dom of all political prisoners.

As part of the campaign, studentsurged the Burmese people to showtheir support by wearing whiteclothes, or, at least, white handker-chiefs, white triangular brooches orbadges. 'Whiteness' represents puri-ty, sincerity, honesty and altruism inBurmese culture.

''Burmese students have been atthe forefront of the democratic strug-gle generation after generation. Wehave been sincere, honest and altru-istic in our struggle on behalf of allthe ethnic peoples of Burma. Withthis 'whiteness' that we urge the peo-ple of Burma to work for nationalreconciliation,'' declared the group.

As the blog site 'Burma Digest'noted, the adoption of the colourwhite was tactically significant sinceschoolboys and girls wear whiteshirts and blouses in Burma. Themembers of the junta's politicalparty, the Union Solidarity andDevelopment Party, also favourswhite. The laymen who dwell inBuddhist monasteries are clad inwhite robes. The campaign in thatrespect was nothing short of 'the re-appropriation of whiteness' by thestudents for their good cause.

The call for 'national reconcilia-tion' showed the political astutenessof the former student activists wholater were also at the forefront of theagitation against hikes in fuel pricesthat triggered off the massiveprotests in September this year.

Outside Burma thousands ofBurmese political exiles spread todifferent corners of the globe havealso been working tirelessly towardsthe liberation of their country. Apartfrom contributing funds for theupkeep of their families back homemany of them are instrumental infunnelling information, ideas andinnovative means of dissent withinthe isolated Burmese population.

Their activities and presenceoverseas has popularised theBurmese struggle for democracyamong ordinary people everywhereand made it one of the globe's top-most causes today. The phenomenalgoodwill they have earned and enjoy

from people around the world isitself enough to see a future demo-cratic Burma through to the 22ndcentury. (Not accounting for survivalof our species due to global warmingof course!)

Those who claim there is a short-age of manpower to run Burma afterthe military regime is toppledshould see for themselves how hun-dreds of young Burmese activistshave been training over the years indisciplines ranging from medicineand engineering to journalism andfine arts.

This is apart from the rich expe-rience they have already gained bysimply living in foreign landsamidst alien cultures, picking upnew skills, absorbing the best anddiversifying their vision of life,economy and politics.

On another front, one more greatachievement of the Burmese pro-democracy movement has probablybeen the coming together of main-stream ethnic Burman activists withthose from ethnic minorities fightingagainst the centralised nation-statecreated after independence fromcolonialism. In countries like India,with an even larger ethnic and cul-tural diversity, some semblance ofnational unity was possible only

because of the popular andwidespread mass movementsagainst British rule—a trend missingin pre-colonial Burma.

Both in 1988, when ethnic rebelgroups welcomed and shelteredBurmese student activists, and in theSeptember 2007 uprising when theyextended full support to the cause ofBurmese protestors there has been avaluable strengthening of ties. Whiledifferences do remain in their visionsof what a future Burma will exactlylook like, the process of shared par-ticipation in struggle against the mil-itary regime is creating spaces fordialogue quite unimaginable a cou-ple of decades ago.

But of all the achievements of theBurmese struggle listed so far themost valuable one has been a deeperand richer understanding of the con-cept of democracy itself.

Today when an average Burmese activist talks of democracyhe or she does not simply refer to thereplacement of an unelected regimeby an elected one. They under-stand—from bitter experience—it isnot so much about who wields statepower but how and on whose behalfit is exercised.

Democracy to them is not a onedimensional, monochrome animal tobe admired in a glorified zoo but amulti-coloured bird set to fly free forall to savour and see. It is not justelections but also environment, alsogender, also race, also diversity andnot just about the big 'realpolitik'stuff but the little things in life thatmake it worth living.

That is why there is no one over-arching Burmese pro-democracymovement but thousands of themwalking, talking, fighting, declaringlittle republics of freedom wherever,whenever the opportunity arises.

And that is why those who arefixated with finding the climax ofthis long running saga should con-sider getting a new pair of eyes towitness the birth of Burmesedemocracy—cell by cell, nerve bynerve. We can already hear the babycrying, surely its smile cannot betoo far away.

—Satya Sagar is a writer, journalistand documentary film-maker based in

Delhi. He can be reached at [email protected]

Under very difficultcircumstances

thousands of youngand old activists have

been carrying outpropaganda and

organisational workwithin the belly of thebeast in myriad wayshelping achieve — bitby bit—what Aung San

Suu Kyi famouslycalled 'Freedom from

Fear'


STREET THEATRE

Art in the service of socialchange has always been acommon trend in the history

of human civilisation. Street play isone of such art forms recognisedthroughout the world. It is a form oftheatrical performance and presen-tation in outdoor public spaceswithout a specific paying audience.As a form of communication, it isdeeply rooted in the Indian traditionas well. It is used as a medium topropagate social and political mes-sages and to create awarenessamongst the common massesregarding critical issues prevailingin society. There is no denying thefact that street plays have always

been an interesting and effectivetool for community education,mobilisation and inclusion throughhands on experience among a broadspectrum of social movements, civilsociety groups, human rightsdefenders and others.

An interesting part of street playsis that they are performed in themost unexpected places—in the mar-ket place, at the bus stop or even onthe street, where a group of peoplei.e. the performers acting out a shortskit or play, for any one who mightwish to stop and watch. For them thisis a means of reaching people of allstrata and creating an awareness ofevents around them, calling them to

change what they believe as thesocial ailments.

There has always been a constanteffort on the part of the civil societyorganisations and the social activiststo physically reach out to the under-privileged, excluded andmarginalised communities who arenot reached by conventional commu-nication channels, and bring inawareness among them on theirshared commitment to the values ofhuman rights and spread publicawareness regarding several socialissues. In fact, street play has provedto be a successful means of attractingtremendous grassroot support whichis very crucial in disseminating issues

Propping up human rights old styleStreet play has always been the best way to take any issue to the people including the

victims of a human rights violation in the grassroot level. The medium creates a strongrelation between the affected individual and the performers that is important for an

individual to identify himself/ herself with the character leading to a better understandingof the issues, write Archana Sarma and Subhradipta Sarkar


STREET THEATRE

of human rights involving them andalso putting forth their demandsbefore the concerned authorities.

HHiissttoorryy ooff ssttrreeeett ppllaayya. In the West The history of street play datesback to the 19th century whenlabourers and party workers per-formed plays during theIndustrial Revolution in Europe.Many of the activities of theSuffrage Campaign of Englandcould also be considered a form ofstreet theatre as they were specta-cles performed in public places toattract audiences. Enormousparades and demonstrations wereorganised by various suffrageorganisations and included thou-sands of women, which meant toindicate to the public that thou-sands of women from all socialclasses supported right to vote forwomen. Robins, a well-knownstage actress came up with herthree act suffrage play, 'Votes forWomen!' which was performed atthe Court theatre in London.Similarly in the US, the lower stra-ta also used the street theatre tofacilitate their advancement in thesociety. Their performances artic-ulated the power inherent in classsolidarity and mocked at the pre-tensions of the better halves in theunequal society.

Many productions came upduring the Russian Revolution toreach illiterate people in remoteareas. During World War II, streettheatre played a role in whippingup an anti-war movement. Mid-century also saw plays in Americaand England addressing theissues related to student's move-ment, women's movement, racialdiscrimination and the VietnamWar. In France, the famousMay'68 Revolution dynamitedstreet theatres in the late 1960s.While theatres started in a hap-hazard way but soon it became apotent weapon for the oppressedclass for their rights against thegovernment. Countless perfor-mances were done by students,workers and peasants.

In 1962 Peter Schumann, aGerman-born sculptor, dancer,and musician opened the doors tothe Bread & Puppet Theatre in

Vermont (in the United States ofAmerica), a low-budget, political-ly progressive theatre arts projectfeaturing gigantic, stunninglyemotive puppets used to personi-fy the inhumanity of war, racism,poverty, and a range of other

injustices. They were also per-formed in storefronts, churches,and on the streets and were dif-ferent from the other people'spolitical theatre. Initially knownas 'guerrilla theatre', it was laterchanged to 'street theatre' as itevolved into the broader conceptof incorporating a wide range of

artistic disciplines. This guerril-la/street theatre continued tospread in urban neighbourhoodcommunity groups, in rural cara-van-type AIDS awareness cam-paigns, as tools in teachingwomen how to escape domesticviolence or showing workers howto organise and win. These grass-roots, amateur street theatre pro-ductions have become a staple ofcommunity organising, educationcampaigns, and public health ini-tiatives throughout the world.

b. In India The history of Indian street the-atre has its roots in the folk the-atre. Historically, folk theatreemerged in the 15th or 16th cen-tury, however, it is only in themedieval period folk theatregradually became an integral partof Indian drama. The tradition offolk theatre with revolutionaryideology started sometime afterthe first War of Independencewhen the message of patriotismand nationalism was spread andfinally, during and after the inde-pendence of India, Indian streettheatre drastically developed asan artistic expression in illustrat-ing the colours of daily life. Itbecame an effort of communicat-ing the message of the mass as anattempt in illustrating the realitiesof daily life.

The need of setting up an apexbody in order to alter the con-cepts of Indian drama and theatrewas always there; and this needwas answered with the establish-ment of the Indian People'sTheatre Association (IPTA) in1942 while changing the age oldconcepts of Indian theatre. It wasthe first organised body to chan-nelise progressive ideas, give cor-rect picture of the critical prob-lems like imperialism and sug-gesting solutions and thus, syn-chronised and fortified all pro-gressive dispositions which werevery much a part of the appliedart form in Indian theatre sinceages. All India People's TheatreConference was held in Mumbaiin 1943 where the group present-ed its idea and objective of repre-senting the crisis of the timethrough the medium of theatre

There has always beena constant effort onthe part of the civil

society organisationsand the social

activists to physicallyreach out to theunderprivileged,

excluded andmarginalised

communities who arenot reached byconventional

communicationchannels, and bring in

awareness amongthem on their sharedcommitment to the

values of humanrights and spreadpublic awarenessregarding several

social issues


STREET THEATRE

and to help people understandtheir rights and duties. This con-ference led to the formation ofcommittees of IPTA across India.IPTA became the pioneer of thepeople's theatre movement inIndia with its patriotic and socialist fervency.

However, the history of streettheatre in India is broken, spo-radic, intermittent, coincidingwith periods of politicalupheaval. Habib Tanvir andUtpal Dutt used street theatre as apolitical catalyst in the 1940s and50s. The common people andtheir sufferings, the struggle ofhumanity and existence, ideallyfound an articulate diction inUtpal Dutt's philosophy and ide-ology which were again so mucha part of his plays. Contemporarystreet theatre was revived in theturbulent 1970s. Calcutta sawhundreds of street performancesby radical groups. With the emer-gency, the semi-fascist terroragainst communists, and theNaxalbari upheaval, street theatreentered a new and potentiallydangerous phase. Badal Sircar, arenowned playwright of WestBengal, rose to the prominence in1970's and was one of the leadingfigures in the revival of street the-atre in Bengal. He made farce andcomedy his weapon to illustratethe social scenario of independentIndia. Another milestone in therich timeline of the Indian theatrewas Shambhu Mitra whose workalso contributed to the formationof Peoples Theatre Association.Safdar Hashmi, one of the mostcelebrated names amongst thepersonalities in Indian theatre inthe post-independence era, waschiefly associated with street the-atre in India.

Pioneered by 'Jana NatyaManch' in north and 'Samudaya'in the south, the movement ofstreet plays gradually spread allover the country. 'Om Swaha','Aurat', 'Roshini' and 'Ahsaas',produced by Delhi-based womenactivists focused attention onsocial, economic and emotionaldynamics of dowry, discrimina-tion and maltreatment of womenbecame very popular in the lateSeventies. In 1980 the infamous

Mathura rape case instigated alot of shows on the need to makethe rape laws more stringent. Infact, the effect of one such play bynoted theatre personality, FaisalAlkazi created a nation wide sen-sation. With the passage of timethemes of street plays havechanged from national con-sciousness to capitalism, peasantand labour movement, environ-ment, communalism, sexualharassment of women, issuesrelated to child rights, HIV/AIDS,police atrocities etc.

AAssppeeccttss ooff ssttrreeeett ppllaayyStreet play should be distinguishedfrom other formal outdoor theatricalperformances, where there is a dis-crete space set aside and an audiencepaying for the show unlike the streetplay. Street play is a situation where

the audience does not come preparedto watch a play, and people may nothave much time on hand. These lim-itations determine the parameters ofthe plays. They are short. Theexchange is close, direct and intimateand, usually loud and larger thanlife. The script and direction isalways significant. In order to drawcrowds from all walks of life, theplays are humorous. Songs based on

popular catchy tunes are included toadd to its appeal. Street theatre aimssensitising masses to social issues,enrolling them in the process ofsocial change and promoting peaceand harmony. It does not necessarilyprovide answers to the issues raised,but tries to analyse the problems.

SSttrreeeett ppllaayy aass aa mmeeddiiuummStreet play has always been the bestway to take any issue to the peopleincluding the victims of a humanrights violation in the grass rootlevel. The medium creates a strongrelation between the affected indi-vidual and the performers that isimportant for an individual to identi-fy himself/ herself with the characterleading to a better understanding ofthe issues. Moreover, a play does notneed much explanation as every-thing is communicated in the form ofexpression and emotion. The themeof a play is always based on incidentstaking place in people's life due towhich street plays are more appeal-ing to the audience than any othermedium. It makes the people think ofthe problems and come up with asolution as well. Not only that, it hasmany other advantages such as:

It can be performed using minimum resources

Emphasis is not at all given on the stage decoration; make up, dresses and other things

The characters can be played by anyone irrespective of gender

The liveliness that gets reflect-ed through such plays can hardly be seen through other media

IIssssuueess ddeeaalltt In our day-to-day activities, we comeacross numerous issues related tohuman rights that vary from individ-ual to individual. Most of the timepeople do a compromise with theirproblems and try to live with them.This happens mainly with womenand other underprivileged groups inour country because they do not finda platform to raise their voice orshare their feelings. Hence, duringthe Women's day celebration byPeople's Watch, the focus of thestreet plays was on certain sensitiveissues such as, domestic violence andsexual harassment at workplace. On

The common peopleand their sufferings,

the struggle ofhumanity and

existence, ideallyfound an articulate

diction in Utpal Dutt'sphilosophy and

ideology which wereagain so much a part

of his plays.Contemporary streettheatre was revived inthe turbulent 1970s


STREET THEATRE

several occasions, incident specificissues of the day become the themesof the street plays, e.g. corporal pun-ishment in school (Dhanam case inSalem district in Tamil Nadu), com-munalism (Gujarat riot incident), dis-crimination against Dalits(Kandadevi temple issue where theDalits were not allowed to partici-pate or to pull the chariot etc.)Similarly, subsequent to the inhumankillings of children of Nithari villagein Noida, Saksham, an NGO, in col-laboration with an activist's theatregroup, Pandies is being instrumentalin staging street plays where chil-dren acted and voiced their opinions.

CCrriitteerriiaa ffoorr cchhoooossiinngg aa llooccaalliittyyOne of the most interesting pointsabout modern street theatre is itsunique sociopolitical place. Theplace or locality for performing streetplay is chosen keeping in mind vari-ous aspects. Firstly, it is performedwhere human rights violations aremore or people are vulnerable tosuch violations. Secondly, the loca-tion is chosen in such areas where theperpetrators are accessible or mes-sage can be conveyed to them.Thirdly, there may be instances of aparticular violation in a specific area.Such location may also be chosen forperforming street plays addressingthose violations per se. Fourthly, in amulti lingual society like India, thelanguage of the locality often mattera lot. An Oriya play cannot succeed ifstaged in a Tamil dominated area.Finally, crowded places like markets,bus stands, railway station, et al aretargeted for such play, because it cap-tures a diverse section of the peopleto communicate serious messages inthe larger interest. At times, theorganisers visit the selected areabefore actual presentation show toconduct a survey to find out wheremost of the people gather duringtheir free time in order to maximiseaudience.

TThhee ttaarrggeett aauuddiieenncceeThe audience is generally made up ofanyone and everyone who wants towatch. However, the target audienceis primarily the people in the grassroot level which include victims,women, Dalits, minorities etc.Undoubtedly, this is a challengingtask to reach out and mobilise such

audience where majority is illiterateor lives under poverty.

PPeeooppllee''ss rreessppoonnsseeSince such plays depict the real lifestories of people, they create a strongimpact on the mind of every individ-ual. It helps the people to identifythemselves with the characters. Onmany occasions, people come for-ward with full appreciation for theorganisers and the performers forbeing able to expose such sensitiveissues without fear or hesitation.They also express their concernabout the safety of the performers.They are eager to have such perfor-mances in other places as well so thatawareness can be created. A signifi-cant aspect is that women areresponding on their own to the prob-lems they encounter the most. As animmediate impact of such perfor-mances, people have started givingtestimony of incidents taking place inand around their locality.

A play motivates people morethan a speech or the conventionalmedium of communication can do. Ithas been realised during most of theawareness programmes by variouscivil society groups that messagescan be conveyed effectively to theilliterate people through such perfor-mances. Through the experiences inthe field, it has been found that a sig-nificant aspect of street play is that itis placed before the audience in avery natural way. Small incident incolloquial language is an appropriatecombination for bringing peopleclose to the essence of the play. Itdoes not require much explanationas things get communicated throughexpressions and emotions of the per-formers. Since the theme of the playis always drawn from the day-to-daylife it is more appealing to the peopleand it encourages them to come upwith a solution.

PPrroommiinneenntt iinniittiiaattiivveessThere are numerous organisations indifferent parts of the country thathave enriched the inherent traditionof street plays in India by taking thetopical events and have spread theawareness of rights into people'splaces of work and residence. Someof those organisations have their owncultural team while others organiseteams as and when needed, from the

On several occasions,incident specificissues of the day

become the themesof the street plays,

e.g. corporalpunishment in school

(Dhanam case inSalem district in TamilNadu), communalism(Gujarat riot incident),

discriminationagainst Dalits

(Kandadevi templeissue where the Dalits

were not allowed toparticipate or to pull

the chariot etc.)Similarly, subsequent

to the inhumankillings of children of

Nithari village inNoida, Saksham, an

NGO, in collaborationwith an activist's

theatre group,Pandies is beinginstrumental in

staging street playswhere children acted

and voiced theiropinions


STREET THEATRE

local youth clubs, cultural groups orso. Following are few instances ofsuch initiatives.

a. Jana Natya Manch Jana Natya Manch (popularly

known as Janam) is a group ofperformers of street play based inDelhi popularising street play asa form of voicing anger and pub-lic opinion against injustice in thesociety. Inspired by the spirit ofthe Indian People's TheatreAssociation (IPTA), most of itsplays are based on cotemporaryissues such as communalism, eco-nomic policy, unemployment,trade union rights, globalisation,women's rights, right to educa-tion, etc. Its first street theatre'Machine' dealing with theexploitation of workers, and hasbeen performed all over India instreets, marketplaces, in front offactories, at rallies, and for rough-ly 1,60,000 people at the BoatClub in New Delhi. The responseof one of its play Halla Bol target-ed towards government's repres-sion of workers' organs for eco-nomic struggle, was so over-whelming that it invited the irethen-ruling party. ConsequentlySafdar was chased during a per-formance and was later beaten up

with lathis and rods. He suc-cumbed to the injuries on the fol-lowing day on January 1, 1989.The accused were eventually con-victed of the crime, after a lengthytrial lasting 14 years.

b. Gaddar Gaddar (originally named as

Gummadi Vittal Rao) is apseudonym of a revolutionaryTelugu balladeer and vocalNaxalite activist from AndhraPradesh. The name Gaddar wasadopted as a tribute to the pre-independence Gadar Party. Hissongs not only represent socialaspirations of the marginalisedsuffering masses but also informthe direction to lead a meaningfullife by joining hands with ongoingstruggles of new democratic revo-lution. The cultural phenomenonof Gaddar is linked with thestruggles of the people to fightoppressive social relationships.

Mostly, Gaddar had a gripover his audiences through hispowerful folk tunes. Gaddarbelieves that the usage of the folktune gives the identification of theartist with people and hasreached his audience of differentlanguages of the nation with thehelp of such folk tunes. Thus,

Gaddar stands as a culminationpoint of culture, literature, poli-tics, life and struggles ofoppressed people.

c. People's WatchPeople's Watch (PW), a

Madurai based Human Rightsorganization, has used streetplays successfully in educatingthe public of their basic rights andcontemporary issues. As a mem-ber of the Campaign againstTorture in Tamil Nadu, it hasused the 'Cultural Yatra' innova-tively to spread awareness on tor-ture throughout the state. Sincethe year 2000, 'Cultural Yatra' hasbeen organised every year inobservance of June 26 as the UNInternational Day in support ofVictims of Torture. More thanhundred of artistes performedstreet plays, skit, dramas, etc., onvarious forms of torture, includ-ing atrocities against ScheduledCastes and Scheduled Tribes,women, dowry harassment, cor-poral punishment in schools andcustodial torture, thereby reach-ing out to lacks of people living invarious parts of the state. Peoplehave come forward in large num-bers to participate in the signa-ture campaign against torture.


STREET THEATRE

For instance, in 2006, the yatrathat was held from June 2 - 22with 13 cultural teams, who trav-elled the whole of Tamil Naduand Pondicherry, met 5,30,500people during the course of itsjourney. The total number ofartists who were a part of thisendeavour was 143. A total num-ber of 519 street corner perfor-mances were staged in cities, vil-lages and hamlets of Tamil Naduduring the Yatra. The 21-day cul-tural yatra culminated in a duskto dawn cultural programme inCuddalore where the artists par-ticipating in the yatra were felici-tated. Social activists, theatre andfilm personalities and leaders ofpolitical parties addressed thegathering on issues of torture.Through the yatra, PW put forthits demands to the governmentthat included India's ratificationof the UN Convention againstTorture, enactment of a nationallegislation declaring torture as apunishable offence.

d. Nrityanjali academyNrityanjali academy is a

socio-cultural organisation fromAndhra Pradesh chose streetplays to reach out to the people.It has conducted several aware-ness programmes on variousissues like AIDS, environment,freedom struggle, and tuberculo-sis through the forgotten folk andtribal traditions. It has presented150 shows of an AIDS—aware-ness street drama in the state. Ithas also done similar pro-grammes with the help ofAndhra Pradesh AIDS controlsociety. With the help of environ-mental and forest department ofAndhra Pradesh we have pre-sented around 100 shows of astreet drama called 'CITY DIARY'in the state. Similarly, withDeccan Developmental Society, ithas presented 50 shows inSecunderabad and Hyderabad ongarbage disposal.

e. Chennai Arts GroupChennai Kalai Kuzhu is a

Chennai-based amateur theatregroup comprising individualscommitted to the cause of a peo-ple's cultural movement. The

group is headed by Pralayan, anenterprising playwright andpoet. In the history of its perfor-mance of over 30 plays, thegroup has touched upon almostevery socio-political issue thathas come up in the last twodecades. The idea of doing streettheatre in Tamil first came toPralayan when he saw a play bySamudaya from Karnataka. Thepower and honesty of the perfor-mance impressed him greatlyand Pralayan began writing anddirecting plays on a number ofsocial themes—children's rights,environmental preservation,civic problems and women'sissues. 'Penn' (Compound),'Maanagar' (Corporation),'Valliyin Vazhkkai' (Life of Valli)and 'James Fund or James Bond'

are among Pralayan's well-known productions.

Street play has been a prima-ry medium for reaching the com-mon masses to bring awarenessabout their rights, and it hasproved to be an effective tool. Inour modern trend, people arepre-occupied with their ownbusiness. Under such circum-stances, it is challenging to makepeople realise about the issuesthat are going on around them.

Moreover, with remarkableadvancement of communicationin the age of information technol-ogy, street play might have lostthe mainstream focus; notwith-standing the fact, it is undoubt-

edly an effective means of pro-motion of human rights, especial-ly in a society where poverty andilliteracy writ large. People getstrengthened by such process ofbringing issues to an open plat-form which they perhaps cannoteven think of in an individualcapacity. They find themselves ina position to approach the con-cerned authorities to claim therights that they are deprived of.The people become aware of theirrights and are able to recognisewhen there is a human rights vio-lation. They find themselvesstrong enough to fight, becausethey no longer feel ignorantabout the things taking placearound them. They do notrequire external assistance all thetime to prepare themselves to

achieve what they have lost. Theyare strong enough to approachthe suitable mechanism for get-ting remedies. Not only that, amessage is also conveyed to theviolators of human rights whowould not dare to continue viola-tion against the mass who areaware of their rights and are unit-ed to fight against them. Aboveall, such phenomenon creates aresponsibility on the public to assure a society where human rights of every individual are respected underany circumstances.

—The authors are law researchersat People's Watch, Madurai


LAND GRAB

None other than PrimeMinister Manmohan Singhannounced in June this year

that the work at the POSCO projectsite in Jagatsinghpur district ofOrissa will begin on April 1, 2008.However, he failed to acknowledgethe fact that there is intense opposi-tion from people who stand to getaffected by the project. NaveenPatnaik-led Orissa government hasassured the company about thetransfer of 4004 acres of land by Aprilfor the integrated steel plant. On itspart, the company is arm-twistingthe state and central government toexpedite the process or else shift theproject somewhere else.

Given the mood of the people ofNuagaon, Dinkia, Kujang and otheraffected villages, none of the abovepropositions will be easy unless thestate decides to use armed force. Inthe past, the Orissa government hasnot hesitated to unleash police andparamilitary forces against the peo-ple of Kashipur, Lanjhigarh,Kalinganagar, who had opposedsimilar industrial or mining projects.

The state in its bid to attract pri-vate capital has abdicated its role as aregulator. In the face of stiff popularresistance, it has resorted to everymeans to subvert legal and constitu-tional safeguards. POSCO is noexception to this. A close scrutiny ofthe POSCO MoU reveals state'snefarious intentions.

IInnssiiddiioouuss ccoonnttrraaccttOn 22 June 2005, a memorandum ofunderstanding (MoU) was drawn upbetween the Governor of Orissa (rep-resenting the state) and POSCO, aSouth Korean steel major, for theestablishment of a 12 million tonneper annum integrated steel plant atParadip in Jagatsinghpur district of

Bargaining livesPOSCO brings Orissa government to its knees as an MOU signed between the two is notonly going to rob thousands of villagers of their tenuous preserves in far off hamlets butalso ties state's hands from doing anything except to support, assist, protect and pave the

way for investors' interests in all eventuality, write Saurabh Bhattacharya, Madhumita Dutta and Usha Ramanathan


LAND GRAB

Orissa. The total investment in theproject is estimated to be US $12 bil-lion after completion, one of thelargest foreign direct investments inthe country.

MoU also includes other compo-nents-mining facilities, road, rail andport infrastructure for the project,integrated township, water supply,and captive power plant.

SSttaattee aass aa rreeaallttoorr The Orissa government haspromised the company expeditioustransfer of all non-forest land andacquisition of private land. As per theMoU, the Company will need morethan 6,000 acres of land in the follow-ing manner:

20-25 acres in Bhubaneswar for their registered office and headquarters

4,000 acres for the steel plant and associated facilities

2,000 acres for township devel-opment

Additional pockets for trans-port and water projects etc.

The Orissa government has com-mitted to acquire and transfer suchlarge chunks of land free of encum-brances through the Orissa IndustrialInfrastructure DevelopmentCorporation. The cost for the landwill be determined under the LandAcquisition Act for private lands andfor government land on the basis ofthe prevailing Industrial PolicyResolution on concessional rates.

A question that deserves to beasked is when the land is to beacquired for a private company fromprivate land owners, why must thestate act as an agent and acquire land,more so under an archaic and colo-nial Land Acquisition Act (LAA). TheLAA should not be used to dispossesspeople, but be a means of protectingpeople in their negotiations withindustry. The state should not abdi-cate its role in protecting against theexploitation of the people fromwhom land is being taken over. Thestate should ensure that the peoplefrom whom land is being acquiredhave full information so that theiragreement to sell is informed. Theyare not led into making decisions thatwould be to their detriment.

As has often been the cases, thestate identifies the land for location of

industry. Then it lets the corporationsnegotiate or coerce people into sellingtheir land. This is done to show thatthe state is leaving things to market.As we can see, this is not about leav-ing it to the terms of the market. Inthe matter of selling of land, industryshould not be allowed to prey on theweaknesses whether arising out oflack of information or whatsoeverother reasons from the point of viewof the people from whom land isintended to be taken away.

One critical issue that the MOUhas not factored in is the impact ofsuch large scale diversion of land

against the interests of petty landholders, labourers and landlessfarmhands. The last of them wouldbe completely dispossessed of theirlivelihood and would not be entitledto any compensation. The LandAcquisition Act does not includelandless agricultural labourers with-in its definition of 'interested person'.The Orissa Resettlement andRehabilitation Policy 2006 also failsto provide any protection to landlesspeasants and labourers. While thepolicy speaks of the need to 'addressthe specific needs of the women, vul-nerable groups and indigenous com-munities', its provisions are vagueand do not spell out the entitlementof the landless labourers.

In Jagatsinghpur district, wherePOSCO steel plant is proposed tocome up, almost 300 families are yetto be allotted legal titles. In theabsence of pattas or titles, the vil-lagers have virtually no bargainingpower and will get displaced with-out adequate or any compensation.Rehabilitation in such cases is noteven considered by the government.

RR && RR ppaacckkaaggeessThe MOU notes that Resettlementand Rehabilitation (R&R) for POSCOoustees will be in accordance withthe Orissa Resettlement andRehabilitation Policy 2006, which

A question thatdeserves to be askedis that when the landis to be acquired for aprivate company fromprivate land owners,why must the state

government act as anagent and acquire

land


LAND GRAB

was drafted and approved by thecabinet in April 2006, in the after-math of the Kalinganagar agitation.

The provisions of this R & RPolicy fall short of acceptable stan-dards and are nothing more than aneyewash. It fails to ensure anyemployment guarantee to the dis-placed; it carries just a stipulationthat the industries give job "prefer-ence" at least to one nominated mem-ber of each affected family. Further, itremains silent about the govern-ment's role in cases where peopledon't want to be displaced by theindustrial projects.

More critically, while mouthingan array of platitudes, it is non-committal on ensuring land for landrehabilitation for the displaced fam-ilies. This makes the entire R & Rpolicy mere eyewash as no amountof cash can compensate for the lossof source of permanent livelihood.Cash compensation by itself doesnot enable generational farmerswith lack of alternate technicalskills to find other sources of liveli-hood. This aspect was recognisedeven by the Supreme Court beforeit sadly remained short of imple-menting its own verdict in theNarmada Bachao Andolan case. R

& R Policy ignores the fact that cashcompensation amounts to neitherrehabilitation nor resettlement. It isnot and cannot ever be an adequatereplacement for a source of liveli-

hood coming down and securedthrough generations.

One of the most fundamental lim-itations of the R & R Policy is that itdoes not speak in terms of commit-ment from the state or entitlementsfor the affected persons. It justmouths homilies on what the state

government should do but does notset out specific commitments.Further, it places no onus on the stategovernment to consult the displacedfamilies while designing and

implementing the rehabilitation andresettlement plan.

PPeerrmmiissssiioonn ffoorr mmiinniinnggThe MoU envisages allotment of coalmine and iron mine blocks for cap-tive mining for the project, eitherdirectly or through a PSU. In this

One of the mostfundamental

limitations of the R &R Policy is that it doesnot speak in terms ofcommitment from theState or entitlements

for the affectedpersons. It just

mouths homilies onwhat the state

government should do but does not set

out specificcommitments

For how long the crops will grow on this land?


LAND GRAB

regard, the Orissa government haspromised to recommend and 'to useits best efforts' to ensure that the cen-tral government grants its approvalfor prospecting licenses and captive

mining leases. It is to be noted thatthe conditions governing the grant ofsuch licenses are provided by theMines and Minerals (Developmentand Regulation Act, 1957) and theMines Act, 1952, together with therules and regulations framed underthem, which constitute the basic laws

governing the mining sector in India.Further several regulatory powershave been vested in the state govern-ment. The state government has toexercise those regulatory powers

independently and in accordancewith statutory mandate and adminis-trative law principles guiding exer-cise of discretion.

The state government promisesthe company or POSCO its bestefforts to ensure grant of all relevantlicenses and lease, there is a patent

conflict of interest between theresponsibilities of the state govern-ment under the mining laws and itsobligations under the instant MoU.The independence of the state gov-ernment to act as a neutral regulator,according to the statutory principlesand compelling public interest, isseverely compromised by its assur-ances under the MoU.

SSttaattee ggoovvtt''ss rroollee iinn lliittiiggaattiioonnClause 6 (5) of the MoU states that thegovernment shall recommend suchareas as are free from litigation andencumbrances and that in case of anylitigation 'at any stage', the govern-ment shall diligently defend its rec-ommendation. Such a clause shouldordinarily be unexceptionable.However, the scope of diligentdefence should only extend to pastencumbrances and litigation. But theinstant clause provides that the stategovernment will defend at 'any stage',its recommendations. This phrase, 'atany stage' takes this clause beyond theordinary realm. This raises the ques-tion as to should the state governmentobligate itself to defend its recommen-dations in a litigation at a subsequentor distant time when the grounds forchallenge to such recommendationsmay include any dereliction or mis-deed of the company.

CCoonnttrraacctt oovveerrrriiddeess ssttaattuutteessThe MoU contains a series of promis-es from the state government in thenature of assuring its best efforts infacilitating all necessary consentsand clearances for all the compo-nents of the proposed steel projectand all ancillary ventures outlined inthe MoU. For instance, it promisesassisting the company in securingclearance under the ForestConservation Act and EnvironmentProtection Act, clearance for creationof water bodies and pipelines, usingits best efforts to enable the companysecure no objection certificatethrough the state Pollution ControlBoard, facilitating grant of CoastalRegulation Zone (CRZ) clearance.

These tall promises by the statecompletely displaces the statutorymandate vested in the state govern-ment and bodies like the StatePollution Control Board by the wholegamut of environmental statutes andregulations. Indian environmental


LAND GRAB

laws, as enunciated by the ForestConservation Act, Water Act, Air Actand the numerous rules framedunder the Environment ProtectionAct, including the EnvironmentImpact Assessment (EIA)Notification and the CRZNotification vest a tremendousamount of regulatory powers on thestate government.

The MoU, by committing thestate government to enabling grantof consent to the company, prejudicesand predetermines the regulatoryfunctions of the government. Thus,the MoU interferes with future exer-cise of statutory powers and, there-fore, displaces the statutory man-dates vested in the government.

This contravenes the widelyaccepted rule of administrative lawwhich states that a public authoritycannot, by contract, restrict thefuture exercise of its statutory pow-ers. This was acknowledged by theSupreme Court in Indian AluminumCompany v. Kerala State ElectricityBoard where the Court also referredto several English precedents.

UUnnllaawwffuull oobbjjeecctt The undertakings made by the state

government prejudice the issues ofgrant of necessary license, consentorders and permits to the company.These decisions will be made on thebasis of the contractual mandate ofthe MoU. In fact, the grant of such

permits has been rendered a faitaccompli by this MoU. As such, theMoU stands in contravention to theestablished principles of administra-tive law. More problematically, thereis a real danger of the state govern-ment finding itself bound to thepromises made in the MoU, particu-larly if the company acts upon thepromises made therein. As such, thestate government may be completelybound by the promises held out inthe MoU and the contractual obliga-tions will completely displace thestatutory mandate vested in it.

It must be noted in this contextthat one of the general principles ofcontract as postulated in Section 23of the Indian Contract Act says thatthe consideration or object of anagreement is unlawful if it is forbid-den by law; or is of such nature that,if permitted it would defeat the pro-visions of any law. Every agreementof which the object or considerationis unlawful is void. Admittedly, aMoU is not strictly speaking a con-tract and nor are the promises madeby the state governments in thenature consideration in true sense ofthe term. At the same time, an MoUis indeed an agreement that would

The undertakingsmade by the state

governmentprejudice the issuesof grant of necessary

license, consentorders and permits

to the company.These decisions will

be made on thebasis of the

contractual mandateof the MoU

Farmers' in a sullen mood


LAND GRAB

shape the contours of the final con-tracts on each specific issue dis-cussed in the MoU and consequently,the fundamental principles of con-tractual laws must still very much beapplicable to it.

Therefore, it may be argued thatthe current MoU contains clauses thatcontravene the legal principles guid-ing the exercise of administrative dis-cretion and, thus, the objects of thisagreement are unlawful.Consequently, such an agreement canbe said to be a void agreement in sofar as they fetter and displace admin-istrative discretion vested by statutesby creating a conflict of interest.

JJuuddggee iinn iittss oowwnn ccaauusseeThese clauses also create a scenariowhere the state government, beingan interested party due to its part inthe MoU, judges its own cause whilegranting necessary permits under thedifferent environmental laws. This isa complete inversion of the funda-mental principle of natural justicewhich affirms that no one shall be ajudge in his or her own cause.

It is an unexceptionable rule oflaw that justice must not only bedone but also must be seen to havedone. The MoU and the promises ofthe State Government made thereincompletely shatter the objectivity ofthe state government and create avery strong apprehension of bias.

CCllaasshh ooff iinntteerreessttMoU also avers that the state govern-ment shall recommend to the centralgovernment setting up of SEZ asrequired by POSCO. Ideologically,setting up of SEZ and its appurtenantprivileging of corporate interests overbasic rights of the people, creation ofanti-people and anti-labour enclavesthat are bereft of any form of demo-cratic control is unconscionable andmust be resisted at all costs.

But the specific clause in thisMoU even falls foul of the limitednorms of the SEZ Act. As alreadyargued earlier, it is well establishedin law that the state governmentmust apply its mind objectively andwith reference to the objectives andprovisions of the Act and make itsrecommendations. However, thisMoU clearly fetters the state govern-ment's power to make independentrecommendations and substitutes its

discretion with contractual obliga-tion towards POSCO and thusdeprives the provision of state gov-ernment's approval of its entire sub-stance and meaning.

SSppeecciiaall ttrreeaattmmeennttThe MoU states that Orissa govern-ment will assist POSCO in establish-ing suitable contacts and interfaceswith the Indian government forPOSCO's requirement for 400 MT ofiron for its steel plants in Korea. Thisbeing a market transaction, there isno reason why the state governmentmust interfere in it by providing spe-cial assistance to POSCO when thecompany can purchase its require-ments from the open market.

MMiilliittaarriissaattiioonn ooff tthhee rreeggiioonnClause 17 of the MoU states that thestate government shall be responsi-

ble for the security of the project andtake all steps including setting up ofnew police stations. This insidiousprovision highlights the state-corpo-rate nexus that has acquired a lethalshape in this neo-liberal era. Thestate is increasingly becoming just asentinel guarding the penetration ofthe mineral rich regions of the coun-try by the global capital and is abdi-cating its functions of honouringand protecting the fundamental,political and socio-economic rightsof the indigenous people and othercitizens. This is an acknowledge-ment of the role of the state inrepressing popular movements andresistance against mega projects asbeing witnessed in Kashipur and in Kalinganagar.

—Writers are members of DelhiSolidarity Group

Patience is running out

India's courts suffer from enor-mous backlogs. To remedy thisIndian politicians and judges have

been promoting various reforms,including alternative forums thatwould dispose of cases more quickly.One forum in particular, the LokAdalat, or people's court, has beenpromoted with special fervor fornearly two decades. The Lok Adalathas been widely trumpeted as a suc-cess by its proponents, but very littleinformation is available on the work-ings of this institution. This study is apreliminary empirical assessment ofseveral sorts of Lok Adalats. These

Lok Adalats exhibit great variation inhow they function. We find that theirperformance is highly problematic,both in terms of effectiveness inresolving cases and in the quality ofjustice received by the parties.These findings have serious impli-cations for the millions of Indianscurrently being encouraged orrequired to submit their grievancesto Lok Adalats and for the prospectsfor efficacious reforms of the Indianlegal system.

India is rightly acclaimed forachieving a flourishing constitutionalorder, presided over by an inventive

a n da c t i v i s tjudiciary, aidedby a proficient bar,supported by the state andcherished by the public. At the sametime, the courts and tribunals whereordinary Indians might go for reme-dy and protection are beset with mas-sive problems of delay, cost, and inef-fectiveness. Potential users avoid thecourts; in spite of a longstanding rep-utation for litigiousness, existing evi-dence suggests that Indians availthemselves of the courts at a low rate


LOK ADALATS

Wheels of justice hardly chug along as per a fixed timetable despite the bestintentions of courts and many among the crowd that throngs daily before them.

And, thus, there has been talk of reforms that gave way for Lok Adalats orpeople's courts among other things. Empowered to bring conciliation

and quick disposal of cases referred to them, Lok Adalats haveturned out to be a forum meant to clear the dockets of regular

courts where demands of justice are often not fully met aspoor have to be content with the solutions offered. As the

regular courts continue to remain backlog ridden, sucha deal can well tilt the system in favour of rich,

affluent, and well to do, warn Marc Galanterand Jayanth K Krishnan through an

indepth study about accessibility ofjustice to the teeming millions.

Excerpts

Access to justice and rights of needy

and the rate seems to be falling. Still,the courts remain gridlocked. Thereis wide agreement that access to jus-tice in India requires reforms thatwould enable ordinary people toinvoke the remedies and protectionsof the law. In this study we focus onan innovative forum, introduced just20 years ago, which has enjoyed sub-stantial governmental and judicialsupport and is endorsed and pro-moted, indeed given pride of placeby influential elites, as a promisingavenue of access to justice. Thisforum is the Lok Adalat, literally "peo-ple's court," and as the name sug-gests it is promoted as having a dif-ferent source and character than thecourts of the state. In fact, the LokAdalat is a creature of the state, butbecause of the pretension that it isnot this deserves examination underthe rubric of an alternative, non-state justice system….

II.. AAcccceessss ttoo jjuussttiiccee iinniittiiaattiivveessA. Nyaya Panchayats: A Failed

Attempt to Reconstitute Justice along 'Indigenous' LinesThe Lok Adalat movement is a

recent arrival on the "Access toJustice" scene. A movement to restorean indigenous legal system flour-ished briefly in the years just afterIndian Independence. Gandhiansand socialists within the rulingIndian National Congress viewed thelegal system inherited from theBritish as unsuitable to a reconstruct-ed India, in which faction and con-flict bred by colonial oppression

would be replaced by harmony

and conciliation. They proposed thedisplacement of modern courts byrestored traditional panchayats - aproposal that met with the nearlyunanimous disdain of lawyers andjudges and the vitriolic scorn of DrBR Ambedkar, chair of theConstitution's Drafting Committee,

who sidetracked the push for pan-chayats into a non-justiciableDirective Principle. As part of thePanchayati Raj [local self-govern-ment] policy of the late 1950s, judi-cial, or nyaya panchayats were estab-lished with jurisdiction over specificcategories of petty cases.

Although these nyaya panchayatsderived sentimental and symbolicsupport from appeal to the virtues of

the indigenous system, they werequite different than traditional pan-chayats. They applied statutory lawrather than indigenous norms; theymade decisions by majority rulerather than unanimity; their mem-bership was chosen by popular elec-tion from territorial constituencies

rather than consisting of the leadingmen of a caste. Indeed the focus onthe "village" panchayat representedan attempt to recreate an idealisedversion of traditional society thatemphasised democratic fellowshipand ignored the caste basis of thatsociety and its justice institutions.

Like their traditional counter-parts, these official nyaya panchay-ats encountered severe problems ofestablishing their independence ofpersonal ties with the parties,enforcing their decrees, and actingexpeditiously. They never attractedsignificant support from the vil-lagers in whose name they wereestablished. Their caseloadsdeclined steadily while those of thecourts continued to rise. In UttarPradesh, civil filings in the nyaya pan-chayats fell from 82,321 in 1960 to22,912 in 1970 - just over 4 cases pernyaya panchayat. During the sameperiod, civil filings in theSubordinate Courts rose from 74,958to 86,749. One indicator of theirdemise is found in the experience ofa researcher in Uttar Pradesh in the1970s, frustrated by the rarity ofnyaya panchayat sessions, whose vil-lager hosts graciously offered to con-vene one to facilitate her research.

In little more than a decade,nyaya panchayats were moribund.It is not clear whether they witheredaway because they lacked the quali-ties of the traditional indigenous tri-bunals or because they displayedthem all too well….

B. PIL: Access through the top….In the early 1980s a small num-

ber of judges and lawyers, seekingways to actualise the Constitution'spromises of justice - promises thatwere so starkly unrealised in practice- embarked on a series of unprece-dented and electrifying initiatives.These included relaxation of require-ments of standing, appointment ofinvestigative commissions, appoint-ment of lawyers as representatives ofclient groups, and a so-called "episto-lary jurisdiction" in which judgestook the initiative to respond proac-tively to grievances brought to theirattention by third parties, letters, ornewspaper accounts. Public interestlitigation, or social action litigation,as these initiatives have been called,sought to use judicial power to pro-


LOK ADALATS

In this study we focuson an innovative

forum, introduced just20 years ago, which

has enjoyedsubstantial

governmental andjudicial support and is

endorsed andpromoted, indeed

given pride of place byinfluential elites, as apromising avenue of

access to justice

tect excluded and powerless groups(such as prisoners, migrant labour-ers, and the environmentally suscep-tible) and to secure entitlements thatwere going unredeemed.

At the same time the governmentand the bar moved to implement thelong-standing commitment to legalaid. A body was established, underthe aegis of the Chief Justice ofIndia, to coordinate the implementa-tion of legal aid programmes. And,most strikingly, there appeared anumber of innovative legal serviceschemes in which social actiongroups for the first time sought touse law systematically and continu-ously to promote the interests ofvarious constituencies…

These programs pointed beyondthe prevailing "service" notion oflegal aid as episodic ad hoc represen-tation in court by generalist lawyers.Instead these new initiatives envi-sioned "strategic" operations of ascale, scope, and continuity thatenabled lawyers to acquire spe-cialised expertise, coordinate effortson several fronts, select targets andmanage the sequence and pace of lit-igation, monitor developments anddeploy resources to maximise thelong-term advantage of a clientgroup. The notion was to relieve dis-advantaged groups from depen-dence on extraordinary, spontaneouspersonal interventions and thus toenable legal work to be calculatingand purposive rather than atomistic.

Public interest litigation has pro-moted important social changes,raised public awareness of manyissues, energised citizen action,

ratcheted up governmental account-ability, and enhanced the legitimacyof the judiciary. But judicially-orchestrated public interest litiga-tion has proved only to be a frailvessel for enlarging access to justiceby empowering disadvantagedgroups. Among its limitations arean inability to resolve disputedquestions of fact; weakness indelivering concrete remedies andmonitoring performance; relianceon generalist volunteers with noorganisational staying power; anddissociation from the organisationsand priorities of the disadvantaged.While affirming and dramaticallybroadcasting norms of humanrights, the courts frequently were

unable to secure systematic imple-mentation of these norms.

Apart from failures of implemen-tation, judicially-supported, publicinterest litigation aroused consider-able resistance both from those whoopposed its program and from thosewho were discomfited by the re-cast-ing of the judicial role. However,there were some judges that avidlypromoted public interest law and, aswe noted earlier, they too wereentranced by the image of informalconciliatory justice brought to themasses by the charismatic or expertoutsider. In his 1976 report, JusticeBhagwati, the foremost judicial pro-ponent of public interest litigation,proposed one-day forums to settlepending cases.

As we shall see, these forums, envi-sioned as pro-active legal aid, soontook on a very different character.

IIII.. TThhee sshhiifftt ttoo iinnffoorrmmaalliissmm The proponents

As the surge of public interestlaw activity leveled off, the reformenergies that had fueled its growthfound new channels. Where promi-nent judges had been patrons andinstigators of public interest litiga-tion, their successors have becomepromoters of Lok Adalats. The dom-inant themes of "reform" havebecome informality, conciliation andalternative institutions rather thanvindication of rights through adver-sary processes in mainstream adju-dicative institutions….

The 'character traits'The early Lok Adalats approxi-

mated a standard template, althoughas we shall see there are many newvariations. Cases on the docket of alocal court (or tribunal) were, withthe consent of one or both of the par-ties, transferred to a Lok Adalat list.At an intermittent one-day "camp"typically on a weekend day, attendedby judges and other officials and pro-moted with considerable hoopla, thecases are called before a mediator orpanel of mediators. The mediatorsare typically retired judges or senioradvocates.

The first Lok Adalat was held in1982. As of March 1996, some 13,061Lok Adalats had been organisednationwide and some 5,738,000cases were resolved there (about 440


LOK ADALATS

The dominant themesof "reform" have

become informality,conciliation and

alternative institutionsrather than

vindication of rightsthrough adversary

processes inmainstreamadjudicativeinstitutions…


LOK ADALATS

per Lok Adalat). Twenty-onemonths later the total has risen tosome 17,633 Lok Adalats and 6,886,000 cases settled. That meansthan in the 21-month period, 4,572Lok Adalats were held - some 218per month or 2,600 per year and thatapproximately 1,148,000 cases wereresolved (about 251 per Lok Adalat.)Unpublished data from the NationalLegal Services Authority shows thatas of the end of 1999, 49,415 LokAdalats were held with 9,720,289cases being settled (about 198 perLok Adalat). By November 30, 2001there were 110,600 Lok Adalats thathad settled 13,141,938 cases (about119 settled per Lok Adalat). It isunclear whether this seemingly con-tinuous drop in the number settledper Lok Adalat is due to the increas-ing number of Lok Adalats, less suc-cess in achieving resolution, fewercases, smaller numbers of media-tors, or more difficult and complexcases. There appears to be consider-able regional variation. In the stateof Gujarat from March 1982 to thebeginning of January 2000, 14,766Lok Adalats were held; nearly 90percent of all cases "dealt with" weresettled. In contrast during the firstquarter of 2001, 651 Lok Adalatswere conducted in Kerala with only39 percent of the cases settled.Clearly there is much variabilityhere and a larger empirical examina-tion of these patterns is requiredbefore any final conclusions can bemade.

What sorts of cases come beforeLok Adalats? One set of sophisti-cated commentators tells us thatLok Adalat cases are "limited toauto accidents and family matters".But the dockets are considerablymore varied, including vast num-bers of ordinance violations andminor criminal cases. While docketsvary from one place to another,generally they are shaped to cap-ture cases involving the poor. LokAdalats, says one proponent, "spe-cially cater to the needs of weakersections of society." They are for"poor people", especially for pettynon-contested cases. Many propo-nents of Lok Adalats see them notas a species of court reform but as aspecies of legal aid, one particularlysuited to the poor, oppressed, andfemale. Like judicially-inspired

public interest law, the theme isbountiful caring for the weak, butthe movement is centered notaround eminent judges and promi-nent lawyers, but district judges,social workers and local advocates.

Lok Adalats are typically notable "to attract cases with heavyfinancial stakes or important civillitigation. Private litigation [has]remained totally outside the ambitof Lok Adalats". The Lok Adalatdevice has occasionally been usedfor mass settlement: resolving twoseparate takings cases where resi-dents of two different areas receivedapproximately 1.5 billion and 186.8million rupees respectively; andmore recently sugar cane growersand laborers were awarded 12 mil-lion rupees in a Lok Adalat bro-kered settlement….

Discovery and award-settlements….Generally, the largest cases in

Lok Adalats are claims by accidentvictims under the Motor Vehicle Act.This is the only type of case countedseparately and statistics are compiledof the amount of compensationawarded in these cases. Thus, theMinistry of Law stated at the end of1997 that some 349,710 motor vehicleaccident claims had been resolved byLok Adalats and some Rs 1160 croresawarded (this is an average award orRs. 33,190). Our data from theNational Legal Services Authorityshow that by the end of November2001, 825,255 of these cases had set-tled at an average award of 39,432.Lok Adalats therefore resolved over10,000 motor accident cases permonth during the last four years(475,545 in 47 months from January1998 to the end of November 2001)-and at higher amounts…..

Forums similar to Lok Adalats areconducted by voluntary groups aswell as by the courts. For example,the principal activity of the People'sCouncil for Social Justice (PCSJ) inKerala, is conducting Neeti Melas (fes-

tivals of justice). Staffed largely byretired judges and court personnel,PCSJ urges people to avoid the courtsand avail themselves of its servicesinstead. Rather than a departurefrom the official norms, it proposes togive disputants' access to a purer,conciliatory, non-adversarial forumfor the application of those norms. In15 years the PCSJ has conducted 227Neeti Melas and has settled over 8,000motor accident cases….

Pre-fieldwork data on Lok Adalats….Just five years after the judicia-

ry began to sponsor Lok Adalats,Parliament enacted The LegalServices Authorities Act of 1987,which was amended in 1994 and thenagain in 2002. The Act visualises aregime of Lok Adalats with jurisdic-tion over "any matter" composed ofjudicial officers and other qualifiedmembers, authorised to proceedaccording to its own procedures,which need not be uniform and to be"guided by the principles of justice,equity, fair play and other legal prin-ciples." Rather than an award inaccordance with the law, the LokAdalat is instructed to "arrive at acompromise or settlement." The 1994amendments to the Act mandate thatthe compromise "shall be final andbinding on all the parties to the dis-pute, and no appeal shall lie to anycourt against the award". (The 2002amendments reiterate this principleunder section 22E.)

Lok Adalats differ sharply fromthe earlier nyaya panchayats. Thejurisdiction of Lok Adalats is notconfined to specific categories ofminor matters, but can extend to"any matter". Instead of the popular-ly elected panches, Lok Adalat offi-cials are nominees of the stateadministration. Where the panchescould issue decisions, the Lok Adalatpanelists - at least until now - canonly "determine and arrive at a com-promise or settlement". Table 1 sum-marises some of the differences

Lok Adalats are typically not able to attract cases withheavy financial stakes or important civil litigation.Private litigation [has] remained totally outside theambit of Lok Adalats


LOK ADALATS

between Lok Adalats and variouspast and present forums for provid-ing access to justice for everydaytroubles and injuries.

This campaign to institutionaliseLok Adalats comes in spite of (andperhaps because of) the fact that lit-tle is known about their perfor-mance. One serious issue that imme-diately comes to mind is whetherthis "informalism" disadvantagesweaker parties. The few availableaccounts raise a host of serious ques-tions. For example, how genuine isthe "consent" by which the partiesconsign their cases to Lok Adalats.Robert Moog portrays pressures onofficials to produce large numbersof cases for Lok Adalats, leading insome instances to the institution ofcriminal cases for the purpose ofhaving them resolved there. Also,cases that have in effect beenresolved in the courts are assignedto Lok Adalats to inflate the total ofresolutions there. Clearly, there arecareer incentives for officials to pro-duce the cases and settlementsdesired by their superiors….

The Lok Adalats' achievement,then, is to provide an official pro-cess for claimants to secure a por-tion of their entitlements withoutthe aggravation, extortionateexpense, inordinate delay and tor-menting uncertainty of the courtprocess. To secure this, they yieldup discounts. Assume, for example,a motor accident claimant whowould secure Rs 50,000 compensa-tion [and accumulated interest fromdate of filing] after an expensiveten-year struggle in the courts.

Imagine that this same claimantmight be able to get half thatamount at a Lok Adalat in just a fewmonths. This is clearly a preferableoutcome for the claimant, given thelegal costs avoided and given theappropriate discount for the futuri-ty and uncertainty of the courtrecovery. Thus the establishment ofthe Lok Adalat arguably provides asignificant benefit for a claimant inthis situation.

But, of course, this claimant isentitled not to the discounted futurevalue of his claim, but to the full pre-sent value. What makes the deliveryof the discounted amount a "bene-fit" is simply that the full entitle-ment can be vindicated only byrecourse to a disastrously flawedjudicial system that at best candeliver it in ten years. Thus the"benefit" conferred by the avail-

ability of the Lok Adalat is a bene-fit only by virtue of the enormoustransaction costs imposed by thejudicial system. And these transac-tion costs impact differentially ondifferent kinds of parties. Thosewho are risk averse and unable tofinance protracted litigation are theones who have to give the dis-counts in order to escape thesecosts; those who occupy the strate-gic heights in the litigation battleare able to command steep dis-counts. Since the sums awarded bythe courts fall far short of fullycompensating the injured, theinjured are triply under-compen-sated: first, by the inadequate levelof compensation delivered by thecourts; second, by the high transac-tion costs; and finally by the dis-counts they must yield to avoid theinfliction of these costs. And, as theinjured are under-compensated,injurers are under-assessed for thecosts they impose on society fortheir risk-creating behavior andunder-deterred from persisting ininjurious conduct.

The establishment of LokAdalats represents the use of scarcereform energies to create alterna-tives that are "better" than thecourts; but it is not necessary to bevery good to be better than the ordi-nary judicial system. The flaws ofthe system serve not as a stimulus toreform it, but as a reason for settingup institutions to bypass it.Reformers take pride in deliveringneeded compensation more expedi-tiously to some of the victims. LokAdalats are then an instance of a

Table-11 Salient Features of Forums for Everyday Justice in India

Traditional District Courts/ Arbitration Nyaya Hight Courts/ Lok AdalatsPanchayat Subordinate Panchayat Supreme Court

Courts Interest Litigation

Flourished Before British Since Early Century 1940 1950-1975 1977 1982

Personnel Communal Bureaucratically Selected by Elected by Local Appointed Judges Retired JugesNotables selected career Parties Electorate (legal Practitioners) Volunteers

Norms Custom of Lex Loci (State Reflection of Statute Law State Law - with Not KnownApplied Caste/Locality Law) Law innovative

Sanctions Fines, Money Damages, Money Awards Fines Money Damages, Enforced byImposed Excommunication Injunctive Relief Enforced by Injunctive Relief court

Court

Accountability Politics of Appeal within Enforcement by Appeal to No Appeal No Appealand Review Reconsideration Judicial Hierachy Court Courts

Representation Self, Factional Lawyers Lawyers Self Lawyers Self/LawyersSpokesman

How genuine is the"consent" by whichthe parties consigntheir cases to LokAdalats? RobertMoog portrays

pressures on officialsto produce large

numbers of cases forLok Adalats

debased informalism - debasedbecause it is commended not by thevirtues of the alternative processbut by avoidance of the torments ofthe formal institutional process.

IIIIII VViissiittss ttoo tthhee ffiieelldd….B. Types of Cases Heard and

the Process of Adjudication The Pension and Electricity LokAdalats

Although the Pension andElectricity Lok Adalats deal withmatters distinct from one anothersimilar patterns are present in howthese two forums operate. ThePension Lok Adalat handles casesbrought by retired civil servants whoare disputing the pension amountallocated to them by the governmentdepartment for which they worked.The Pension Lok Adalat also hearsclaims initiated by current civil ser-vice workers seeking a promotion orincreased monetary compensation. Ajudicial panel consisting of a retiredHigh Court judge, the GeneralSecretary of the Retired Employees

Association, and a practicing lawyeroversee these matters. The PensionLok Adalat was statutorily created byour selected state in 2001, as a "per-manent and continuous" body.According to the presiding judge,"500 cases have been settled in thelast year and a half," in which eachclaimant received the requestedamount from the governmentaldepartment. This statistic, however,is contrary to the information pro-vided by the Pension Lok Adalatoffice. According to the officialdata, as of December 12, 2002, 605cases had been referred to thePension Lok Adalat, with only 214reaching settlements. 376 cases wereadjourned, three were returned tothe regular courts, and 12 had yet tobe heard.

Irrespective of this disparity, thepresiding judge of the Pension LokAdalat repeatedly expressed hostili-ty towards the presence of lawyersin these forums and noted that wereit not for them, the number of set-tled cases would dramatically

increase. "Lawyers are famous," thejudge commented to Krishnan, "fordragging on cases." But of the twen-ty-three cases Krishnan observedonly three claimants even cameaccompanied by lawyers. Moreover,in thirteen cases (none of which hadlawyers involved), the party guiltyof being unprepared and delayingmatters was the government agency.In six consecutive cases, the state'seducation department representa-tive asked the panel for postpone-ment, prompting the presidingjudge to shout, "why the hell aren'tyou people ready? Is this how yourun things over there?"(Nevertheless, the motion for delayin each case was granted.) And inthat morning session, just three caseswere resolved, with the remainingpostponed to another sitting.

The government's lack of pre-paredness also could be found in theElectricity Lok Adalat. This forumwas established in 2001 to settle dis-putes between consumers and thestate electricity company. According


LOK ADALATS

A Lok Adalats inprogress

to the presiding judge of theElectricity Lok Adalat, 90 percent ofthe cases involve billing disputes -mainly claimants accusing the elec-tricity company of excess charges.The remaining matters deal with thecompany seeking compensationfrom individuals that the companycontends have stolen electricalpower. The day that Krishnanobserved this Lok Adalat 25 caseswere on the panel's docket. Thirteenresulted in a settlement while 10were postponed at the request of thecompany; two cases did not reachany resolution and the parties agreedto litigate these matters in the regularstate court.

Aside from the government notbeing prepared in nearly half of thecases in the Electricity Lok Adalat,there was another curious aspect tothis proceeding. Of the 25 cases onthe docket for that day, threeinvolved the company making theftcharges against individual con-sumers. Assisting the company in thepresentation of its case to the two-member judicial panel was the police.Krishnan interviewed the police rep-resentative at the Lok Adalat whoexplained the reason for law enforce-ment's participation. This officialstated that typically when the com-pany lodges a theft complaint againsta private individual, protocolrequires that a formal report be filedwith the police department. A specialpolice division investigates the com-plaint and if the charges are substan-tiated, then these findings arereleased to the company. At thatpoint the company may pursue acivil liability claim in the districtcourt, but if it and the defendantagree, then they may bring the caseto the Electricity Lok Adalat for aspeedier resolution. (The policereserve the right to file criminalcharges against the individual withthe city prosecutor.)

But the police's role does not endwith the investigation of the theftmatter. As Krishnan observed, in theElectricity Lok Adalat the police rep-resentative served as the lead advo-cate for the company. This officialwould explain the case to the judicialpanel, question the defendant on thespecifics of his actions, and makepenalty recommendations.Meanwhile, none of the defendants/

consumers Krishnan observed hadlegal representation, nor were theyable to present adequate responses tothe satisfaction of the judicial panelor to the police. As the police repre-sentative explained to Krishnan,"because we are familiar with thesetypes of matters, it is quicker and bet-ter if we [rather than the company]deal with these cases." These crimi-nal matters in the Electricity LokAdalat, however, were not the onlycases in which the police wereinvolved. In at least a half dozenbilling disputes the police represen-tative argued on behalf of the com-pany against the consumer. In thelast case of the day, one that hap-pened to be the most heated disputeof all those on the docket, the policeofficial directly denounced the con-sumer for wasting the panel's timeand urged him to pay the bill onceand for all, which the consumer ulti-mately did. Even the presidingjudge of the Electricity Lok Adalatconceded in an interview followingthe proceedings that claimants may,

at times, "feel somewhat intimated"with the police being present.

General Lok AdalatsTwo different General Lok

Adalats in two different cities, wherein each setting the respective chiefjudge served as head of the judicialpanel, were observed during thecourse of the field research. The firstGeneral Lok Adalat observed waslocated in a district about 20 milesoutside of the capital city. The morn-ing set of cases involved severaldivorce matters. Before even going tothe Lok Adalat room, couples wouldenter the presiding judge's privateoffice, where their respective lawyerspresented the reasons for the divorceapplication. In this "pre-Lok Adalat"hearing, the judge explained to theparticipants that his main goal was tosee if the marriage could be salvaged."Especially if there are children," heexplained, "we want to try to dowhatever we can to achieve reconcil-iation."

The expectations of the parties,


LOK ADALATS

Manipur implemented the freelegal aid scheme in late 1980s. A

board patronised by the governmentwas constituted known as the ManipurFree Legal Aid and Advice Board. Thescope and objectives of the free legalaid board are granting free legal aid tothe needy litigants through a panellawyer to represent them in the case,conciliation and settlement of disputesat pre-litigation stage and to educatethe people on their legal rights by hold-ing legal aid camps at village level.

Subsequently, government enactedthe Legal Services Authorities Act,1987. It came into force in 1995 thatgave Lok Adalat legal status and itsdecision was made final and bindingon all the parties. However, the dis-putes can be taken before the LokAdalat only if both parties agree to sub-mit to its jurisdiction.

In Manipur, mode of settlementof disputes through Lok Adalatbecame a regular feature for claimsfiled before the Motor AccidentClaims Tribunal, Manipur.However, since in Lok Adalat thereis no inquiry or trial, the agent ofthe insurance company in collusionwith the claimant, sometimes man-aged to get benefit out of it. Thoughthe Lok Adalat lends itself to easysettlement of motor accident claimsthere is scope for settlement of otherdisputes as well. Partition suits,damages and matrimonial cases canbe easily settled before Lok Adalatas the scope for compromisethrough an approach of give andtake is high in these cases. Disposalof a case through a regular court oflaw not only involves higher expen-diture but also delay. Generally the

Scope for compromiseIn Manipur, Lok Adalat has become a regular feature for

claims of motor accidents, hence, there is scope forsettlement of other disputes as well

however, during these pre-LokAdalat hearings were far different. Inthe observed cases, formal separa-tion, not reconciliation, was the mainpriority of the parties. In one notablecase, a middle-class couple came intothe room accompanied by their twoyoung children and almost immedi-ately began screaming at one anotheras well as to the judge. The wifeaccused the husband of having anextra-marital affair and emotionallyabusing her, while the husbandsobbed that his wife had made a falsecriminal complaint against him,which had resulted in his arrest.Throughout this whole episode,which lasted nearly half-an-hour, thechildren sat quietly crying while thelawyers unsuccessfully attempted tocalm their clients down.

As this commotion was occur-ring, the presiding judge chattedwith Krishnan intermittently abouthow he had seen this couple now forthe third time, and how they had stillrefused to try to reconcile. At thatpoint, the husband interrupted,

yelling at the judge, "Sir, please, rec-onciliation is not possible!" Yet, thejudge continued to explain that thistype of "venting session" was goodfor the couple's emotional health. Hethen called the children over to sitnext to him and asked how they feltabout their parents' fighting. Too ner-vous to speak, the eight-year-old boyshrugged, while his five-year-old sis-ter held her brother's hand continu-ing to weep. In a firm tone, the judgethen noted to the parents: "See - isthis how you want your children tosee you? Is this nonsense you arefighting about really good for them?A boy and a girl need both a motherand father - this fighting is not goodat all." With that, the judge orderedthe couple to attempt to work theirproblems out and to return nextweek if they could not resolve theirdifferences….

….The disregarding attitudetowards lawyers was particularlyhighlighted during the afternoon ses-sion where Krishnan observed a caseinvolving 26 claimants who were

seeking compensation from a state-owned bus company for injuries theysustained during a violent trafficaccident. Assisting the district judgein the adjudication of this matter wasa social worker and another judge ofthat same court. The victims wereuneducated, rural villagers who,through their lawyer, accused thebus driver of gross negligence. Onone side of a table separating the par-ties were several bus company offi-cials and their lawyer; on the otherside were the line of victims who allwere represented by the samelawyer. The claimants' lawyer wouldpresent each victim who one-by-onetold the three-judge panel of theinjuries he/she incurred. Theclaimants' lawyer would then pro-vide to the panel medical reports andin some cases x-rays of each victim'sinjuries. The panel would review thereports and then the chief districtjudge would hold each x-ray up tothe light and attempt to decipher theseriousness of the injuries. WhenKrishnan asked if he had medicaltraining to read the x-rays, the judgenoted that since he had beeninvolved in many of these types ofcases in the past, he had developed a"knack" for this task.

In terms of the settlements, thenegotiations followed a definite pat-tern. The bus company would pro-pose a figure, the claimants' lawyerwould (half-heartedly) counter, thebus company would then stateanother figure, and in three-fourthsof the cases observed, the districtjudge would actively support thecompany's proposed amount. (Inthose matters where the judge didnot completely endorse the compa-ny's offer, he negotiated a settlementwhere the final figure still came closeto the company's second proposal.)Three other observations merit men-tion. First, when the claimants'lawyer ultimately accepted the set-tlement, he would do so withouteven consulting the clients. Second,the bus company's lawyer rarelyspoke during any part of the pro-ceeding; the company officialsengaged directly in the negotiations.And third, on average, each individ-ual case took anywhere between 15seconds to two minutes to resolve.

After the proceedings, Krishnanquestioned the claimants' lawyer


LOK ADALATS

litigants are anxious to settle thedisputes as early as possible. If theparties to a dispute are apprised ofthe legal position they may agree tosettle it amicably.

Another dimension of LokAdalat is that in getting the relief assought for in the law court usuallytakes time and as such the aggrievedparty prefers to get awards/relieffrom the Lok Adalat even though

the party has got lesser amount to therelief of the law courts. In short, theaggrieved party always becomes looserat the Lok Adalat as compared with therelief from the law courts.

Khaidem Mani, President, AllManipur Bar Association, opines thatthe Lok Adalat is more useful in settlingdisputes relating to the motor accidentclaims but nothing has been seen inother cases. Under the Legal ServicesAuthority Act, 1987 there is one statelevel committee known as ManipurState Legal Services Authority and inrespect of the nine districts of Manipurthe district level legal services authori-ties are functioning. Out of these ninedistrict level committees, district levellegal services authorities of Imphal Eastand Imphal West districts are effective-ly functioning in the state. And the resthave been found functioning only in thepaper. However, there has not been apermanent Lok Adalat in Manipur thatcan be approached by any party for adispute involving public utility serviceseven though it has been specificallyprovided by the Act.

—Meihoubam Rakesh

about the assembly-line manner inwhich he handled these cases. Beforeanswering, the lawyer made it apoint to note that professionally hestruggles to attract clients and is fur-ther hindered by his lack of legalexperience. One way he has soughtto improve his contacts as well as hisprofessional capital is by working inLok Adalats. Because Lok Adalatsare promoted by people who thelawyer perceives as having thepower and the ability to help himprofessionally, he makes it a point towork in these forums. Eventually,however, he did confess that thepowers-that-be, he felt, evaluatedhis productivity (and that of the LokAdalat) on the number of cases dis-posed during a Saturday session….

…..After they left the courtroom,Krishnan spoke separately to thelawyers for both sides. The worker'slawyer expressed great frustrationthat the judge "did not even bother"to look at the receipts of all the med-ical expenses incurred by his client.He noted that even if his clientreduced his financial demands byone-half, there still would be no waythe worker could cover these costs onhis own. "At least the other judges[i.e. those on the original Lok Adalatpanel] were listening to my client'sdifficulties. We did not even get tomake our case here." The employer'slawyer also was dismayed aboutwhat had just occurred. "How can he[the employer] settle or reach a com-promise if he has no money to give?Why we even bother to come here [tothe Lok Adalat], I just don't know."

The resignation expressed by thissecond lawyer turned out to be arather common sentiment. Severallawyers stated that while on occasionparticipating in Lok Adalats didbring about quicker settlements fortheir clients, in most cases judgesrefused to take the time to studywhat often were complex issues,examining, for example, importantevidence in a very cursory manner orsimply not at all. Indeed, frustratedby what they perceived as the heavy-handedness of the chief judge, fourdifferent lawyers interviewed saidthat they have begun to engage "qui-etly" in tactics that they hope willeventually undermine the LokAdalat process. For instance, afterbeing lectured by the chief judge for

not having his client present in aproperty law dispute for now thethird time, a reprimanded lawyerpulled Krishnan aside telling himthat he purposely instructed hisclient not to show up at that day'sLok Adalat hearing. Since the LegalServices Authority Act, which gov-erns Lok Adalats, requires that dis-puting parties sign onto all compro-

mises reached, so long as thislawyer's client continued to refuse tomake himself available no pact couldbe finalised. The ultimate goal, thelawyer indicated, was to put this caseback into the regular courts, wherehe believed his client had the bestchances of success.

Another way that lawyers haveexhibited this passive resistance is bynot showing up themselves to a LokAdalat hearing. The following week,for example, Krishnan returned to theCity Civil court where he witnessed adivorce proceeding involving aMuslim couple….

….Following the adjournment of

this Muslim divorce case, Krishnaninterviewed first the husband andthen the wife. While the husbandsidestepped the question of why hislawyer did not appear, the wifedirectly stated that her lawyer hadpurposely not attended for fear thatthe wife would not receive a fairhearing in this forum. According tothe wife, her lawyer had little confi-dence that the judicial panel (partic-ularly if the chief judge was pre-sent) would show the lawyer thedeference he believed he deserved.The lawyer also apparently stated tothe wife that it would be the judge'sbiased beliefs that would dictate theoutcome rather than the principles ofequity or law. Since the Lok Adalatlacked any enforcement power tomake the lawyer attend, the plan wasthat eventually the case (after goingthrough several postponements)would be re-directed to the regularstate courts where the lawyerbelieved he would have a better shotat obtaining a more favorable out-come for his client. …

The discord that is presentbetween judges and lawyers withinboth the General Lok Adalats seemsto reflect a deep tension that propo-nents of this institution to date havenot fully acknowledged. In the nextsection we turn to examining anoth-er type of forum, the High CourtLok Adalat, where judge-lawyeranimosity has similarly seriousimplications for the claimants seek-ing to access justice.

The High Court Lok AdalatThe High Court Lok Adalat is an

interesting creature. Established in2000, it meets one weekday a monthin a building located next to theHigh Court that houses the stateLegal Services AuthorityCommission. This particular LokAdalat seeks to dispose of the thou-sands of cases that continue to back-log the High Court. The matters that


LOK ADALATS

Year Number of Excise CasesSettled by High Court LokAdalat

Total Amount of MoneyAwarded (Rupees) byHigh Court Lok Adalat

2000 44,810 19,373,0212001 46,332 14,512,9052002 10,214 2,049,100

2003 (Jan 1-May 31) 2914 540,635

frustrated by whatthey perceived as theheavy-handedness ofthe chief judge, four

different lawyersinterviewed said that

they have begun toengage "quietly" in

tactics that they hopewill eventually

undermine the LokAdalat process

Table-22

typically come before the HighCourt Lok Adalat are petty criminalcases that the Indian penal codecharacterises as compromise-able, or"compoundable." In Americanterms, the institution serves to facili-tate plea bargains between the state'spublic prosecutor and the pettycriminal defendant. (Where the vic-tim is an individual, the public pros-ecutor generally consults with thevictim before striking any deal.)There is a three-judge panel that pre-sides over the High Court LokAdalat: a retired High Court judge,along with two advocates. As withthe other Lok Adalats, at least onemember of the panel must be awoman, but the statutory require-ment that the panel includes a socialworker was not strictly enforced.

On the day that Krishnan trav-eled to the High Court Lok Adalat, 16cases were scheduled for hearing. Yetbefore the session began, the pre-siding judge informed Krishnanthat he was very skeptical of reach-ing a settlement in any case. "Thesedamn lawyers are just not showingup," he commented. "They are fol-lowing the order of the [state] BarCouncil not to come and work in theLok Adalat." As it turned out, half ofthe defence lawyers did attend thatday's session with their clients, butthe proceedings were delayedbecause the public prosecutorarrived over 30 minutes late - muchto the dismay of the presiding judgewho quietly remarked to Krishnan,"these lawyers are all alike, regard-less of who they work for. Delay is allthey know."

Eventually the session began; theseparate defendants had their respec-tive counsel present and the judicialpanel called each individual up one-by-one. Six of the cases involved"excise" matters, or otherwise put,state charges against a defendant forselling alcohol without a licence. Onthis issue of excise, the Indian penalcode is both complex and technical.Under some circumstances exciseviolations will be compoundable(e.g., when the amount of alcoholsold is under 10 litres), while otherswill not be. In five of the six cases, theviolations were found to lie outsidethe High Court Lok Adalat's jurisdic-tion, much to the ire of the presidingjudge who scolded the lawyers on

both sides for not knowing thisbeforehand. Yet in every one of thecases that was dismissed, the judicialpanel scrutinised the statutes to see ifthere was any way of fitting therespective cases into one of the com-poundable categories. In his eager-ness to find a way to resolve morethan just one dispute, a judicial offi-cer not on the bench but who hap-pened to be visiting this session andserving as an active advisor to thepanel stated in an exasperated voice,"I really think if we read the provi-sion this way, we can make this work."

If there was great frustration thatalmost all of the excise cases failed tomeet the penal law's compoundabili-ty requirement, then consider howthe panel reacted when a differenttype of case that could be settled, wasnot. The last case of the day involvedtwo defendants who already hadbeen convicted in criminal court ofviolating Section 354 of the Indianpenal code. That provision states thatit is a crime to:

Assault or [use] criminal force toa woman with the intent to outrageher modesty - whoever assaults or

uses criminal force to any woman,intending to outrage or knowing it tobe likely that he will thereby outrageher modesty, shall be punished withimprisonment of either descriptionfor a term which may extend to twoyears, or with fine or both.

Both of the defendants had beensentenced to a prison term andordered to compensate the victimfinancially, but they were appealingtheir case to the High Court. Onappeal the High Court affirmed thelower court's prison sentence, howev-er it recommended to the public pros-ecutor and the defence lawyers thatthey try to hammer out an agreementon the issue relating to compensation.

Also present at this hearing wasthe assaulted teenage victim and herolder, very feeble father. The judicialpanel summoned the two, along withthe public prosecutor and the defen-dants' lawyers to the bench. Thejudges urged the parties to come tosome sort of financial settlement sothe matter could be disposed. As theprosecutor and defence lawyersbegan to negotiate, the victim'sfather requested to speak. He asked:if the lower court's prison sentence


LOK ADALATS

Hurried affairIn West Bengal, Lok Adalats are held at both the High Court and at city and

district levels mostly dealing with civil matters. I act as judge at the LokAdalats at the district level. At the city/civil levels, Lok Adalats are held onthe last Saturday of every month. The maximum number of cases whichcome up are regarding financial disputes involving banks and servicesproviders such as mobile phone companies. I have asked the various lawyersinvolved in these cases about why such a large proportion of the cases arefinancial disputes, but they could not give me any convincing answer.

Some matrimonial cases also come up. These cases are sent from the fam-ily court for final settlement with the consent of both the parties. But theproblem is that Lok Adalats do not look into the matter in detail. They justendorse what the family court has already directed. For example, a familycourt in a matter of matrimonial dispute directed a husband with an incomeof Rs 5000 a month, to pay his wife a monthly sum of Rs 4000. The husbandmay have agreed to the amount before the family court in order to wriggleout of the case, but later on it becomes difficult for him to keep his word. Thecase lands up before the Lok Adalat in the wake of default on the part of thehusband. Had the financial situation of the litigants been enquired properly,such a situation would not have risen. So when such cases come before theLok Adalat, the Adalat needs to look into the cases in greater depth.

In some of the districts like Hoogly, Howrah etc., Lok Adalats are heldafter court every day. The caseload largely consists of pending cases broughtin by lawyers for early disposal. This may not serve the aim with which LokAdalats are formed.

—Sutapa Chakrabarty

was affirmed, why did its original,levied compensation award requireany adjustment at all? He explainedthat his family was poor and strug-gled to eke out an existence.Lowering the award, even by just afew hundred rupees, would have asignificant impact on him, his wife,and his children. The presidingjudge tried to explain to the fatherthe bigger picture of why it wasimportant not to clog the HighCourt with matters that could beeasily resolved here in the LokAdalat. But the father, althoughtimid in the way he spoke,remained resolute. He would notagree to any reduction in compensa-tion and if the case needed to besent back to the High Court for afinal decision, then so be it.Angered that no compromise couldbe reached the presiding Lok Adalatjudge adjourned the matter andordered the parties to resolve theirdispute in the regular state court.

In spite of the low number of set-tlements that occurred duringKrishnan's visit to the High CourtLok Adalat, state Legal ServicesAuthority officials hastened to pointout that this day was an anomaly.According to these officials, 2003has been a banner year; in particu-lar, between January 1 and May 31nearly 3,000 cases have settled, withtotal awards reaching over half amillion rupees. Moreover, the staffat the Legal Services office proudlydisplayed to Krishnan the year-by-year total of excise settlements dat-ing back to 2000. Table 2 illustratesthe results.

Upon closer scrutiny the dataprove to be quite perplexing. We seethat in its first year, 2000, the HighCourt Lok Adalat settled nearly45,000 cases, and dispatched almost20,000,000 rupees in awards. Justtwo years later though, in 2002, thenumber of cases settled dropped toabout 10,000 and the awards issuedfell to slightly over 2,000,000 rupees.If the first five months of 2003 areindicative, the 2003-year will see thelowest number of cases settled bythe High Court Lok Adalat and thelowest amount of money awarded.Of course because the data from theLegal Services office are incompletein so many ways, we are left withmore questions than answers. For

example, what percentage of casesthat come before this Lok Adalat areactually settled? Could it be that in2000, 95 percent of the cases were set-tled, whereas in 2002 settlementsoccurred only 10 percent of the time -or vice versa? Are fewer cases settledtoday because there are fewer dis-putes, fewer claimants willing toagree to a settlement, greater lawyer-obstinacy to work within theseforums, or something else?

The incomplete nature of the datacollection was not restricted to theHigh Court Lok Adalat. Consider

how the records bureau locatedinside the capital city's Civil CourtComplex functions. This office keepsstatistics on the activities of othertypes of Lok Adalats in the capitaldistrict. The staff provided Krishnanwith access to a variety of recordsfrom 2002. For example, according totheir data, in 2002 a Criminal LokAdalat met 192 times and settled1,090 criminal matters. But accord-ing to the presiding judge of thisparticular Lok Adalat, the forumregularly met up to three times aweek where between 40 and 50cases were disposed of in each ses-

sion. Moreover when asked howmany petty criminal cases werereferred to the Criminal Lok Adalat,no one could provide an answer.Krishnan then went to observe howthe Criminal Lok Adalat operatedand it became apparent why therecords office had no data on case-referrals. For one thing, theCriminal Lok Adalat is a disputesettlement body in name only. Inreality all this forum does is to signoff on pre-arranged settlementsreached between the state and thecharged defendant.

The proceeding takes place in thecriminal courthouse, located aboutthree miles away from the capitalcity's Civil Complex, specificallywithin the office of a criminal courtjudge (known as the metropolitanmagistrate). The judge is at his deskwhile a female advocate, who servesas the titular second member of this"judicial panel," sits on the other side.(There is no third member present.)One-by-one, a defendant enters thejudge's office escorted by a policeofficer. A clerk presents the judgewith the defendant's file thatexplains the plea agreement reachedwith the state. The judge signs offon the matter and the case is report-ed as "settled." This episode takesjust seconds to complete; once thejudge signs the necessary forms, thedefendant exits (presumably to jailor to pay a fine) and the next defen-dant comes in and the same processis repeated. That the Legal Servicesoffice finds no reason to maintainstatistics on the number of casesthat are referred to the Criminal LokAdalat is understandable in view ofthis forum's 100 percent "settle-ment" rate.

As an institution, the CriminalLok Adalat acts more as an adminis-trative rubberstamp than as a disputeresolution forum. There are nolawyers or prosecutors present.There is no contestation of facts ornegotiations regarding the terms ofthe settlement. Krishnan wasinformed that meetings between thedefendant and the prosecutor occurprior to the Criminal Lok Adalatjudge signing off on the plea agree-ment. And, furthermore, he was toldthat not all of the plea-bargainingmeetings resulted in compromise.However, the Legal Services


LOK ADALATS

In 2002 a CriminalLok Adalat met 192

times and settled1,090 criminal

matters. Butaccording to the

presiding judge of thisparticular Lok Adalat,

the forum regularlymet up to three times

a week wherebetween 40 and 50

cases were disposedof in each session

Authority office does not keep statis-tics of what transpires within theseplea-bargaining meetings. We do notknow, for example, what percentageof compoundable cases is settledbeforehand and what percentage istried. The district Legal Servicesoffice only records (and highlights)the supposed success-rate of thecases "settled" within the CriminalLok Adalat.

It is unclear why records for theCriminal Lok Adalat are kept in thismanner. In civil matters the recordkeeping tends to be a bit moredetailed but it too remains incom-plete. For example, the Legal Servicesoffice noted that last year within thecapital district 132 out of 283 civiland family law cases settled in pre-Lok Adalat negotiation meetings. Yetthere was no breakdown on the typesof civil matters settled or whetherany litigants bypassed the pre-LokAdalat meeting and went directly tothe Lok Adalat itself. Separately keptstatistics for 2002, added more confu-sion: 460 out of 510 divorce caseswere settled in the Lok Adalat; 168out of 200 motor vehicle accidentcases were settled in the Lok Adalat;and that 142 out of 200 "other civilmatters" (mainly property disputes)were settled in the Lok Adalat.

Furthermore, the Legal Servicesoffice had other rather puzzling data.In Bank Adalats - dispute resolutionforums intended to bring about com-promise between customers whohave a grievance against the Banks ofIndia - only 181 out of the 800 casessettled in 2002. In contrast, the dis-trict's Water Company Adalat, whichhears cases from individuals withcomplaints against the city's MetroWater Supply and Sewage Board,received 152 cases in 2002 and settled123 of them.

The office also noted that thou-sands of cases have been settled inJail Adalats - forums that occur in thejail cell of inmates who have beenaccused of committing a petty crimi-nal offense but who lack theresources to post bail and thus havelanguished in custody for, in somecases, years. And once every threemonths the district Legal Servicesoffice holds a "mega-Lok Adalat,"which is a one day camp organised atthe city's central sports stadiumwhere anywhere from 8,000 to 10,000

cases are brought. On averageKrishnan was told that the settlementrate at these mega-Lok Adalats isabout 50 percent.

Yet how do we interpret any ofthis data? Along with the questionsraised above, other issues come tomind. For example, how satisfied arethe claimants that participate in BankAdalats, Water Company Adalats,Jail Adalats, or mega-Lok Adalats -even when a settlement is reached?How effectively are the parties'claims being presented? Do lawyersact strategically vis-à-vis the judges

as we witnessed above? Are judgesthe dominant figures parsing out jus-tice as they see fit? And perhaps mostimportantly, has the desire forincreasing the number of cases set-tled so consumed those workingwithin the process that they havelost focus on the substantive, con-crete concerns of the averageclaimant?

The evidence we have gatheredand the queries we raise place intoquestion both the effectiveness andthe ultimate fairness of LokAdalats. As we have found, the LokAdalat is not a single institution, buta cluster of kindred institutions. Notonly are new variants evolving, butwithin each, those who operate themare improvising and new patternsare emerging. In spite of the tradi-tionalistic reference of the name,there is little drawing on indigenouspractices; and in spite of the populistrhetoric, there is no evident commu-nity input or participative characterto the proceedings. These institu-tions tend to operate in a top-downfashion - scheduling, location, per-

sonnel, and agendas are all decidedby the authorities who occupy theirpositions by virtue of state connec-tions. These forums are dominatedby judges both as organisers andpresiders. Correspondingly, the roleof lawyers is notably diminishedcompared to the regular courts. Withlittle lawyer input and no recourse toappeal, presiding officers enjoy fargreater discretion than in regularstate courts. On the basis of ouradmittedly limited observations, wenote that judges are sometimespaternalistic, overbearing, or per-functory and not necessarily moredeliberative.

CCoonncclluussiioonnWe appreciate that many in Indiashare a desperate desire to improvethe condition of the legal system.But we question our critics'unabashed acceptance that LokAdalats - even with their flaws - area net improvement for India's legalsystem. Lok Adalats consumescarce resources of money, person-nel, attention, and energy. Theseresources might be better employedto address the fundamental prob-lems facing the courts in India. Topersist on the Lok Adalat trackwithout critical examination of itscosts and alternatives strikes us asmanifesting an unwarranted pes-simism about the possibilities forcourt reform that truly enhancesaccess to justice.

MMoovviinngg ttaarrggeettWe anticipate that there will be fur-ther extensions and enlargements ofthe Lok Adalat cluster and perhapsrefinements and cutbacks as well.Within the past year there have beenadditional statutory initiatives to bol-ster the Lok Adalat. In 2002Parliament enacted a new set ofamendments to the Indian CivilProcedure Code. Among them,Section 89 enlarges the power ofcourts to refer cases to Lok Adalats.Section 89 reads:

"Where it appears to the Courtthat there exist elements of a settle-ment which may be acceptable to theparties, the Court shall formulate theterms of the settlement and givethem to the parties for their observa-tions and after receiving the observa-tions of the parties, the Court may


LOK ADALATS

The evidence wehave gathered and

the queries we raiseplace into question

both theeffectiveness and

the ultimate fairnessof Lok Adalats

reformulate the terms of a possiblesettlement and refer the same for -arbitration; conciliation; judicial set-tlement including settlementthrough Lok Adalat; or mediation.

Where a dispute has beenreferred - for arbitration or concilia-tion, the provisions of the Arbitrationand Conciliation Act, 1996 shallapply as if the proceedings for arbi-tration or conciliation were referredfor settlement under the provisionsof that Act; to Lok Adalat, the Courtshall refer the same to the Lok Adalatin accordance with the provisions ofsub-section (1) of Section 20 of theLegal Services Authority Act, 1987and all other provisions of that Actshall apply in respect of the disputeso referred to the Lok Adalat; forjudicial settlement, the Court shallrefer the same to a suitable institu-tion or person and such institution orperson shall be deemed to be a LokAdalat and all the provisions of theLegal Services Authority Act, 1987(39 of 1987) shall apply as if the dis-pute were referred to a Lok Adalatunder the provisions of the Act; formediation, the Court shall effect acompromise between the parties andshall follow such procedure as maybe prescribed."

Under one plausible reading ofSection 89 a court now has thepower to steer cases into LokAdalats, accompanied by the judge'sformulation of a resolution, when-ever the judge believes that a settle-ment between the disputing partiesis possible, even if the parties do notshare this opinion or consent to thetransfer. Presumably if a settlementwere not arranged in the LokAdalat, the case would return to thedocket of the court. But this under-standing is rendered problematicby another new provision, this anamendment to the Legal ServicesAuthority Act (LSAA) added byParliament in 2002. Section 22D ofthe LSAA states:

"The Permanent Lok Adalatshall, while conducting conciliationproceedings or deciding a disputeon merit under the Act, be guidedby the principles of natural justice,objectivity, fair play, equity andother principles of justice, and shallnot be bound by the Code of CivilProcedure, 1908 and the IndianEvidence Act, 1872."

At least some Lok Adalats arethus authorised to go beyond arrang-ing settlements to "decid[e]. . .a dis-pute on merit," and they are givenbroad discretion to do this accordingto their general notions of justice.Even without this extension of themandate as mediators, Lok Adalatjudges already possess power thatseems overbearing and coercive to

the parties before them - especiallypoor and un-represented parties.

The Indian Bar Council has beenvery critical of 22D particularly forallowing Lok Adalats to rule nowon the merits of cases without theagreement of the parties. Further,many Indian lawyers worry that aclaimant seeking justice in the regu-lar state courts might end up havingher case transferred without herconsent to a Lok Adalat (via section89 of the Code of Civil Procedure).And once in the Lok Adalat, theclaimant may then have a judgment"on merit" issued against her, whichunder section 22E of the Legal

Services Authority Act would be"final and binding" with no appeal.

In December 2002, lawyers acrossmuch of India went on strike toprotest these amendments. In addi-tion, the protestors filed a writ peti-tion in the Supreme Court seeking toinvalidate section 22D. In a short butconfusing judgment the Court dis-missed the petition and upheld theamendments as free of any constitu-tional infirmity. The Court went onto state that the amendments to theLSAA, including section 22D, wouldtake effect once "Permanent LokAdalats" were "set up at an earlydate." What "Permanent Lok Adalats"means is unclear. From reading boththe 2002 amendments of the LegalServices Authority Act, as well as theCourt's judgment, it appears asthough no Permanent Lok Adalatshave yet been established in India.Presumably such Permanent LokAdalats would be confined to mattersdealing with public utilities. But thisturns out to be a potentially elastic cat-egory, including not only transportservices, postal, telegraph and tele-phone services, electric and water ser-vices, sanitation, hospital, and insur-ance services, but also "any servicewhich the central or state govern-ments. . . may in the public interest . . .declare to be a public utility for pur-poses of this chapter." Recall thataccording to the statute that createdour Pension Lok Adalats, these forumswere to be a "permanent and continu-ous bod[ies]." So, is it possible now forPension Lok Adalats to issue non-appealable judgments on the merits ofa case? Might other Lok Adalats beassimilated to the "permanent" and"public utility" categories? Judges andlawyers with whom Krishnan spokeexpressed differing views on the exactimpact of the Court ruling and of thenew amendments. Needless to say,more research (and clarification fromjudges and government officials) isrequired before knowing how theseamendments and this judgment willaffect those pursuing legal claims.

These recent events underline theextent to which the scope and pow-ers of Lok Adalats and their relationto other legal institutions remainfluid and unresolved. Such changesrepresent a series of improvisationsby proponents trying to strengthenand extend what they perceive as a


LOK ADALATS

'The Permanent LokAdalat shall, while

conductingconciliation

proceedings ordeciding a dispute onmerit under the Act,

be guided by theprinciples of natural

justice, objectivity, fairplay, equity and otherprinciples of justice,

and shall not bebound by the Code ofCivil Procedure, 1908

and the IndianEvidence Act, 1872'


LOK ADALATS

MMiirr SSyyeedd LLaattiiff ((MMeemmbbeerr,, BBaarrAAssssoocciiaattiioonn ooff KKaasshhmmiirr)) The objective behind the establish-ment of Lok Adalat was to reducetime consumption and increase com-fort and fast disposal of cases. But,there is lack of awareness about theLok Adalats among the masses whichis a hindrance in the achievement ofits objective. Besides, the lawyers donot counsel their clients before takingthe matter to the Lok Adalat due towhich the disposal rate of the casessuffers a setback. Lawyers shouldhelp in motivating the parties for anamicable settlement and try to facili-tate the disposal of the case.

Lok Adalats were a success in

the case of earthquake relief, buteven in this sphere, some people arecomplaining that their claims havenot been adequately fulfilled. As faras the budgetary allocations for theconvening of Lok Adalats as grant-ed by the ministry of law and justiceis concerned, it needs to be seen ifthe cost of convening of Lok Adalatsis actually more than what routinelitigation would cost, if the financialaspect of the Lok Adalat is to betaken into consideration exclusively.

AAiijjaazz BBeeddaarr ((VViiccee PPrreessiiddeenntt,,BBaarr AAssssoocciiaattiioonn ooff KKaasshhmmiirr)) Parties to the dispute should be coun-seled properly before the matter is

heard in the Lok Adalat. Generally,the highest rate of disposal in the LokAdalats can be seen in motor accidentclaims, which is not actually required.Real success for the Lok Adalat sys-tem would have been the settlementof substantive litigation, which doesnot happen in reality.

SShhaabbiirr AAhhmmaadd BBhhaatt ((JJooiinnttSSeeccrreettaarryy,, BBaarr AAssssoocciiaattiioonn ooffKKaasshhmmiirr)) Lawyers don't have much to do inLok Adalats as the parties themselves,with the help of the bench, arrive at asettlement. It is a cheap and speedyremedy available to the needy, butwhat is required is that senior lawyers

The major objective of the Lok Adalats remains to provide speedy disposal andamicable settlement of disputes, consequently saving time and money of the partiesand the court. But the success of Lok Adalat in the fulfillment of the stated objective

remains disputed. Faisel spoke to members of the legal fraternity of Kashmir to find outthe significance and effectiveness of Lok Adalats. A summary of opinions expressed:

Bittersweet symphony

promising institutional initiative. Ata conference on access to justice inNew Delhi in November 2002,Galanter spoke about Lok Adalatswith a number of High Court andSupreme Court judges. Almost uni-formly they regarded Lok Adalats asa signal success. As one judge put it,in a twist on Marie Antoinette, they

are "bread for the poor. Later theycan have cake". On the other hand,critics see in these moves portents ofa dismantling of legality in favour ofpaternalistic, intuitive, "kadi justice"for the poor. The absence of appeals,the exclusion of lawyers, and the shiftof decisional standards from "legalprinciples" to "principles of justice"

suggest a major enlargement of thepresiding judge's discretion and arobust faith that the poor have moreto gain from benign paternalism thanfrom juristic or popular legality.

On each side the argument relieson assertions about the working ofLok Adalats that are based on suppo-sition rather than investigation. Wehope that research of the kind wepropose will help to transform thedebate, and the further developmentof the Lok Adalat institution, into anexchange in which aspirations foraccess to justice are tested by empiri-cal observation and analysis.

—Marc Galanter is ContinentalProfessor of Law, London School ofEconomics and the John and Rylla

Bosshard Professor of Law and SouthAsian Studies, University of

Wisconsin-Madison — Jayanth K Krishnan is ResearchProfessor of Law William Mitchell

College of Law

At a conference on access to justice in NewDelhi in November 2002, Galanter spoke

about Lok Adalats with a number of High Courtand Supreme Court judges. Almost uniformly

they regarded Lok Adalats as a signal success.As one judge put it, in a twist on Marie

Antoinette, they are "bread for the poor. Laterthey can have cake"


LOK ADALATS

should also assist in the settlement ofdisputes in the Lok Adalats.

MMoohhdd AAyyuubb SShhiieekkhh ((AAccttiivviisstt))The Lok Adalats have proven to bea very successful attempt atspeedy disposal of cases and dis-pensation of justice. The law needsto be amended to allow criminalcases to be included in the LokAdalats, which will lead to plea-bargaining, and speedier disposal,in criminal cases.RRaahhiillaa ((LLaaww OOffffiicceerr,, SSttaatteeLLeeggaall SSeerrvviicceess AAuutthhoorriittyy))

The State Legal Services AuthorityAct (SLSA) 1987, envisages takingup of the pre-litigative and post -lit-igative cases. But due to inadequateawareness among the public, mostlypost-litigative cases are taken up inthe Lok Adalats. The cases that aremostly settled, as far as Srinagar dis-trict is concerned, are motor acci-dent claims, in which compensationworth crores of rupees has been dis-

tributed so far. Besides, petty crimi-nal and labour matters also see high-er rates of disposal in Lok Adalats.

The Lok Adalats are a success asfar as compromises, enhancement ofmaintenance, and settlement of cus-tody and guardianship in matrimoni-al matters are concerned. They havebrought respite to many women whowere troubled by the lengthy processof litigation in order to attain theirmatrimonial rights. Lok Adalats havebeen a huge success in the distribu-tion of relief in earthquake-hit areaswhere compensation was speedilydistributed through Lok Adalats.However, in case of the recent floodsin Kashmir, no Lok Adalat has beenconvened so far because there havebeen no claims. As a matter of rou-tine, the SLSA convenes Lok Adalatstwice a month.

The role of lawyers in the settle-ment of disputes in Lok Adalats isevasive; if they can be a little bitmore cooperative, the rate of settle-ment would be far higher.

PPuunneeeett ((MMuunniicciippaallMMaaggiissttrraattee,, SSrriinnaaggaarr))The real success of Lok Adalatswould have been in relieving thecourts from the burden of substan-tial and serious litigations ratherthan settling of traffic matters thatcomprise a substantial part of thework being done by the Lok Adalats.As far as the settlement of matrimo-nial causes is concerned, the dispos-al rate is a meager 30 per cent orthereabouts. The lower effectivenessof the Lok Adalats in such matterscan be attributed to the fact thatbefore consigning a matter to theLok Adalat, proper ground workwith respect to the briefing of theparties and analysing the chances ofsettlement is not done. Besides, itwould also be appropriate if theoriginal judge can hear a case whenit is convened to the Lok Adalatagain, so that he or she can keeptrack of the progress in a case and the chances of settlement aremaximised.

Iam in search of real Lok Adalatsas they originated in Gujarat fromthe most sensitive heart of late

Chief Justice of the Gujarat High

Court, MP Thakkar, who also servedthe Supreme Court as its judge. Likehim many of us expected LokAdalats to grow and develop into

temples of justice. Sadly, this is notseen anywhere in India as they arefailing. Not that they are dead, but asit happens in India with other institu-

Crippling Lok AdalatsAs justice delivery system gets farther from people, a serious attempt like Lok Adalat to

make justice accessible to large chunk of poor, needy and deserving too has beenappropriated by powerful vested interests. The search for a reasonable and equitable

justice delivery system has come to an end, writes Girsih Patel


LOK ADALATS

"We all want a Humane Legal System, but I think we sometimes forget that the largest part of humane is human. A humane legalsystem would look at the people it deals with as human beings, people with hearts and heads and lives and troubles. I think thebiggest problem with our legal system is that often it sees the people it deals with as disembodied crimes or torts or bank accounts,and not as human beings. If we are ever to fix that, or set it right, we need lawyers not only with great minds, but also great heads.

Justice and efficiency and legal craft are very good things. It is good and right and proper that you have spent three years learn-ing about them. But they are incomplete. Justice need mercy, efficiency needs empathy, and legal craft needs love. And if wordslike empathy and love sound like they do not belong to the same page with a phrase like legal craft, I think that may be a sign thatwe have lost our bearings. If there is one thing I would ask you as you begin your professional lives, it is this: Do not lose yourbearings. Use your minds and also use your hearts."

—Prof. Bill Stuntz at Harvard Law School


LOK ADALATS

tions, they have suffered total meta-morphosis into something complete-ly different, distorted and perverted.Unfortunately we missed a greatopportunity to develop purely,indigenous people's courts of justice,based upon the ideals of ourConstitution, namely democracy, lib-erty, equality, justice, fraternity andhuman dignity in furtherance of ourConstitution's "commitment to socio-economic revolution" (GranvilleAustin). The well-entrenched systemof vested interests extending uptocareerist legal professionals, mainlymoney minting lawyers and reac-tionary socio-economic forces, whoco-opted emerging Lok Adalats toserve their narrow interests. As aresult "We, the People of India",remained where we were - trapped,alienated, impersonal, remote, nar-rowly divided and dominated by asystem of administration of justice inwhich justice-seeking people are theonly "outsiders".

GGeenneessiiss ooff LLookk AAddaallaattThe Lok Adalat really originatedfrom the failure of the establishedlegal and juridical system to provideeffective, fast, and inexpensive justicewith the litigant at the centre, partic-ularly the huge arrears of caseswhich took extraordinarily long timefor disposal. In most of the cases,common people were waiting for jus-tice - many a times simply for theconclusion of the case not for justice.Again plethora of appeals, revisions,reviews, and the end product iseither victory or defeat of one of theparties, but not satisfactory and justresolution of the dispute. Late JusticeThakkar could not bear the sight ofwaiting and begging workers, wid-ows, landless labourers, Dalits orAdivasis cherishing hope for justicehowsoever faint it could be. The firstLok Adalat was held in Junagadhwith great preparation and remark-able simplicity. It was a great successand the idea picked up and led tonumber of Lok Adalats with the helpof select and sensitised group ofadvocates and at different places. Atmany of them the atmosphere wassurcharged with enthusiasm, andmissionary zeal. In one Lok Adalat innorth Gujarat, when the judges-cum-lawyers asked an ordinary litigant,"What is your problem?" The man

with fears in his eyes said, "For thefirst time in five years, somebody hasasked me about my case." Many of ussaw in this small incidence the poten-tiality of Lok Adalats to grow intogenuine Justice-Courts of the peopleand for the people. The sole guidingprinciple of Justice Thakkar was toturn Lok Adalats to "less expensive,less speculative, less glamourised,more participatory, more resolutionsoriented or dispute solving mecha-nisms that work to serve the purposeof justice with humanity in mind".

AA nnoovveell aanndd eexxcciittiinngg iiddeeaaIn one sense, we in India had somekind of village community or castepanchayats or Adalats where localdisputes were sought to be resolved.The problem was that they werenyaya panchayats (caste/ communitypanchayats) or village panchayatsoperating within the rigid frame-work of unjust, inequitable, hierar-chical caste-system, where justiceamong equals was possible, but notjustice between unequal opponents.Equality before law was absent. Onthe other hand when the Britishestablished their own judicial systemwith independent courts andlawyers, its "equality before law" did

please the lower castes and lowerranks. It had a revolutionary germ,namely, even a Dalit can file a caseagainst Brahmin. But this was only amirage. The social structure didaffect the system and could not trans-late formal equality before law intosubstantial and real equality. Thedominant sections and the lawyershijacked the institution. Moreover,the system was so remote from thesocial reality and people's own worldthat it remained a totally alienatedand impersonal system. It used to besaid that a person who could not telllies before his neighbours and rela-tives can shamelessly tell lies in acourt of law even under oath. TheEnglish courts finally became thecourts of the few and for the fewwhere goddess of justice with blind-ed eyes had unequal scales. The sys-tem centered around professionaljudges and skilled lawyers where thelitigants were only the passive con-sumers and recipients of whateverjustice could trickle down.

As against this, we could see inthe Lok Adalats as they originallystarted working of the inner poten-tiality of overcoming the limitationsof both traditional and British sys-tems. They might bring back to the


LOK ADALATS

centrestage the common people seek-ing justice. It can deliver justice to thesatisfaction of both parties, given thehelp of sensitive judges and caringlawyers. At that time we did not con-sider Lok Adalats as only a way outof the arrears of cases, but muchmore than that i.e. as genuine peo-ple's tribunals - independent, impar-tial, participatory and more justice-oriented that aimed at resolving dis-putes as far as possible.

DDoowwnnttrreennddAfter a few successful Lok Adalats,the process of distortion started. Thevery same vested legal interests bothamong judges and the lawyers start-ed smelling something threateningthe very system they had created forthemselves and their careers. Theydid not openly oppose them buttoyed with the idea of using them totheir advantages. Firstly, the LokAdalats were found useful for reduc-ing the burden of arrears of caseswith great ease and without addi-tional burden upon them. Secondly,to show good performance and suc-cess of Lok Adalats, pending caseswhich were likely to be settled orcompromised were kept pendingand assorted to be placed before the

Lok Adalat. Thus, a game of num-bers was set off. Thirdly, Lok Adalatscame to be used by judges at all lev-els for self-image-boosting andcareer advancement by extravagantpublicity and funfair. The simplepuri-subji or khichdi-chhash gaveway to multi-cuisine dishes.Fourthly, the lawyers who havealready received their fees fullylooked upon Lok Adalats as amethod of disposing of cases nolonger useful for them. Fifthly, theLok Adalats that were meant to bringabout resolution of dispute on thebasis of equality, fairness, justice andgive-and-take deteriorated in courseof time into some kind of invisible,coercive agencies for brining unduepublic pressure, particularly pres-sure from the lawyers, judges, andthe social workers present in the Lok

Adalats for settlement despite itsbeing unfair, unjust and calling forone sided sacrifice. Sixthly, the sameunjust, unequal, authoritarian andhierarchical socio-economic struc-ture of our society which was respon-sible for distorting the establishedjustice delivery system engulfed thenew system of Lok Adalats with theresult that the poor, weak, needy anddeserving side started losing theirjust fight to the advantage of rich,affluent, powerful and well off sec-tions. Thus, the haves could havetheir way over have-nots. The formercould purchase injustice at a low costand with impunity. Thus, LokAdalats also met the same fate as hadhappened to many other well-mean-ing institutions. Many a time, goodinstitutions die before their actualarrival and others die on arrival as

they slowly undergo a decaying pro-cess or metamorphosis and growinto something totally different withdifferent and opposite functions.

VVeesstteedd iinntteerreessttss'' ggaammeeLok Adalats originated from noblerpurposes and for serving the cause ofjustice and bringing it to the door ofthe people. But the concept wasnever fully examined and wasallowed to grow haphazardly and onan ad hoc basis. Nobody tried seri-ously to put it in a larger and properhistorical and socio-political context.How shall or should we look at thevery concept of Lok Adalat -- merelyas a byproduct of the failure of ourjudicial system, or as a simple deviceto dispose of the heaps of cases pend-ing for years in our courts, or as analternative justice-delivery system tobe imposed from above? If this is so,it was bound to fail or falter sooner orlater. It could not develop simply asan adjunct of the present system ofadministration of justice centeringaround passive judges and con-trolled by aggressively expensive

Many a time, good institutions die before their actualarrival and others die on arrival as they slowly undergoa decaying process or metamorphosis and grow intosomething totally different with different andopposite functions


LOK ADALATS

lawyers. Except Justice Thakkar, andfew other judges, and a few commit-ted lawyers, others -- lawyers andjudges - did not take Lok Adalatsseriously. In fact, they looked downand ridiculed or laughed at them.Many reluctantly joined and soonthey discovered as to how this couldserve their professional purpose. Thespirit of the institution disappeared,its idealism evaporated; only formremained along side its professionalutility. The Lok Adalats, as conceivedand perceived by late Justice Thakkarcould not take deep roots in the soil.It did not become part of naturalethos, part of living law. It was neveraccepted by the judges and lawyersas essential part of their true func-tions as persons entrusted to take for-ward the cause of justice and fairplayin the society.

HHooww ttoo llooookk aatt LLookk AAddaallaattss??The institution of Lok Adalat shouldbe understood in the context of theevolution of our polity. As we haveseen, we did have our own system oflocal and royal justice, with all itsimperfections, injustices, and inade-quacies. As brooding sense of injus-tice is omnipresent in every humanbeing, every society does recogniseforms of injustices and evolves itsown methods of doing justice,always influenced and controlled bypowerful interests. Still it had it rootsin the society. The British system,even though based upon liberal con-cept of rule of law and equalitybefore law, has merely remained an

alien system for the vast majority ofour people. It never became a part oftheir day-to-day life. The people byand large did have neither resourcesnor energy to use these courts andmostly were dragged into courts asvictims or defendants. The courtsand the law were for the people, notof the people.

It was the freedom movementwhich gave new ideals of liberty,equality, justice, dignity, fraternityand democracy and which finallyculminated into our Constitution in1950. Its preamble, its democraticinstitutions, its ideals, FundamentalRights, Directive Principles consti-tute our "nation's conscience" andstood for our commitment to socio-economic revolution. Our basicinstitution -- Parliament, Legislatureand Executive - were movingtowards people's participationthrough adult franchise and freeelections. The 73rd and 74thAmendments adopted thePanchayati Raj institutions that werebased upon principles of decentrali-sation of power and participatorydemocracy. The Supreme Court tookone very important step forward byevolving relaxed locus standi andopened the gates of justice for thelarge section of invisible and inaudi-ble people through Public InterestLitigation - a new participatoryinstitution. New concept of preven-tive and remedial legal servicescame to be recognised and adopted.Pubic hearing in environmental pro-jects was accepted by law and nowpeople's right to information hasbecome a very important instrumentfor the people in the affairs of thenation. Lok Adalats ought to havebeen understood, accepted andevolved in this direction - as partici-patory people's courts or centers ofjustice with best features of people'sparticipation and people's percep-tion and of independent, fair andequal justice. They could and shouldhave become a part of the process ofhumanisation, emancipation anddemocratisation of law and justice.Of course this required clear vision,perception, insight and foresight,leadership, commitment, courageand strength of conviction and firmdetermination to fight against allodds and vested interests. This wasnot to be, and as it happened with

most of our Constitutional institu-tions, it also overtook Lok Adalats.

IIss tthheerree nnoo hhooppee??We cannot afford to give up hope.The process of humanisation anddemocratisation is always slow andhas to undergo ups and downs. Thequestion is of rendering justice to themembers of society and every soci-ety has to arrange for protectingrights, preventing or promotingwrongs and for settling or resolvingdisputes, both individual and collec-tive. It is for one of these principalreasons for which state as a politicalinstitution came into being and if itceases to discharge that function orfails in this, it ceases to be a state. Ofcourse, justice through state courts isnot the only way. In every societythere are numbers of conflict --resolving or dispute settling systemsor modes for justice, and it is gener-ally well recognised that resort to acourt of law should be the last resort.Social resolution of disputes is gen-erally preferable to official resolu-tion because it is more sociallyacceptable and does not ordinarilyleave behind bitterness. It can also bepreventive. Lok Adalats must beconsidered as one of the agencies inthis wide social context, not merelyas an appendage to or corrective ofthe present system.

Lok Adalats, if properly con-ceived and thoughtfully designed,have many advantages over theestablished courts. They combineboth elements -- lawmen andlawyers. They are less formalised,less expensive, more purposive anddirectly committed to real long termjustice. The litigating people havegreater scope for in participation inthe satisfactory resolution of theirdisputes. Lok Adalat can thus per-form different functions dependingupon different factors. They can pre-empt and remove the causes of thelikely disputes with the assistance ofauxiliary people's centers which canconstantly be vigilant, and sense ordetect possible areas of conflict orcan encourage people to bring theirpossible or likely disputes beforethem. They can also act simultane-ously as conciliators, mediators, arbi-trators or adjudicators as per therequirements. One special advantageis that their decision will be made

Pubic hearing inenvironmental

projects was acceptedby law and now

people's right toinformation hasbecome a very

important instrumentfor the people in theaffairs of the nation


LOK ADALATS

easily acceptable and smoothlyenforceable. These Lok Adalats willbe and can be indigenous and peo-ple's court or tribunal originating ordrawing inspiration from the people- not remote, alienated, impersonal,formalistic and legalistic. Like lan-guage, law and its courts must reflectthe volkgeist - "spirit of the people",not because "spirit of the people" isalways just and righteous, butbecause it is closer to the law of life.The absence of this was the bane ofthe English system in India, whichremained largely an urban and elitistinstitution for the few, while the com-mon people continued to live andresolve problems in their own ways.Lok Adalat can combine both tradi-tionality of the modern and moderni-ty of the tradition.

The modern world of globalisa-tion is in search of different alterna-tive disputes-settlement methods forits trade, business and industries, andIndian lawyers and judges havebecome crazy and are in hurry as ifthey were evolving or creating origi-nal methods for the people. They donot know - or pretend not to know -that they are really trying to meet therising and urgent demands andneeds of a globalised capitalism.Nothing wrong in this, but searchand zeal for effective and genuinepeople's tribunals or fora for people'sproblems must also go on simultane-ously. Here there is an opportunityfor a strong movement and campaignfor Lok Adalats. Such Lok Adalatswill have roots in the soil, easilyaccessible and acceptable to the peo-ple. They can perform different roles- preventive, negotiating, bargaining,compromising and resolving. Theymust retain and preserve the basicfeature of impartial, just and fair sys-tem of justice, with popular participa-tion, but not diverted or distorted bypopulism or guided or controlled bypowerful vested interests of the soci-ety at the local level.

WWhhaatt oouugghhtt ttoo bbee ddoonnee??The task is not very easy. Its chal-lenge has to be accepted. But we can-not afford to give up the idea. Weshould start at both the ends. One,the pending cases in different courtscan be sorted out and these casestouching the essential needs of thepeople should be our focus. To

resolve them, we should build up agood team of lawyers, judges andsocial workers who understand thesocial dynamics and who can with-stand the pressure from the strongerelements of society. We must orientthem towards seeking demystifica-tion of law. So that they start under-standing that essence of law is sub-stantively equal treatment and jus-tice. At the other hand we shouldstart at the grassroot level, build upan organised group of easily avail-able law-men and others, who liveand work in the midst of the peopleand who can provide preventivelegal services to the needy, particu-larly the poor and the weak. The ideais to root out the initial causes oftrouble and disputes and resolvethem at the earliest.

This requires a totally newapproach. The 21st century is con-sidered as the century for humanrights and human developments.The basic principle is people's par-ticipation and people's control in allspheres. This must also include thesphere of law, lawyers and judges.Law cannot be allowed to be toomuch sophisticated, learned andintricate, or even scientific, other-wise it will be only a lifelessmachine to be used and abused atwill. Lawyers and judges cannot bemere black-letter men looking upon

law as only an exercise in logic andnot in life. There is nothing new andsurprising in this. What was after allthe jury system in criminal casesand even in civil cases? The spiritunderlying this must pervade andpermeate the entire juridical sys-tem. It is definitely a long term pro-ject and there are no short cuts. Wemust start with our law collegesand with our legal education. Wemust aim at producing and traininglawyers and judges for radical peo-ple-orientated transformation ofour justice-delivery system. Incourse of time Lok Adalats as pro-jected here will take deep roots inthe soil and will be accepted as thefoundation of our judicial system.Only then courts of law will becomecourts of the people - integral partof people's social life.

This will be a very challengingtask - to create people's institutionswith the active cooperation and sup-port of the people. We must alsoremember that this will be seriouslyresisted by the established profes-sion, as it is rightly said "every pro-fession is a conspiracy against laypeople". We must be on constantguard to ensure that the new institu-tions are not hijacked by the judgesand lawyers for their self interest. Itis necessary that these institutionsgrow from the bottom and not fromthe top and for this a strong people'smovement demanding the peopleand justice-centered system ofadministration of justice is necessary.We do require trained judges andtrained lawyers, not as benefactors orcommanders but as people's servantsand equal participants with thoseseeking justice. These local anddecentralised institutions workingwith and in the midst of the peopleand with openness, fairness andtransparency are the only effectiveanswers to the ideological hegemonyof capitalism and globalisation con-trolled by giant national and multi-national corporates. We must striveto make latter subordinate and sub-servient to the demands of dignifiedlife of the common people in everynook and corner of the country. Arewe prepared to accept this challenge?

The writer is a human rightsactivist and senior advocate,

Gujarat High Court

We should start atthe grassroot level,

build up an organisedgroup of easily

available lawmen andothers, who live andwork in the midst ofthe people and who

can providepreventive legal

services to the needy,particularly the poor

and the weak

…Allow me to makeone general andextended prelimi-

nary remark concerning the overalltheme of this conference: 'Equity andEquality in a Market Economy.'

This is indeed a puzzling themebecause central to the notion of themarket itself are two institutions oflaw: the right to private property, inall its sacrosanctity, over the means ofproduction and the right of freedomto contract. Both these notions puttogether signify the Rule by Capital,not any conception of the Rule ofLaw guided by equity and equality,conceived either constitutionally orin terms of basic human rights andfundamental freedoms. Once weaccept the right to private property inthe means of production, we alsoaccept more or less the right of thebillionaires to remain super-rich andthe plight of the most impoverishedto be super-poor. We further acceptthat both the freedom to own proper-ty and freedom of contract imply theright to inflict lawful harm on others.

The elegant expression 'marketeconomy' conceals more than itreveals. To understand it ratherfully, we need to grasp the distinctionbetween production and seduction.The French postmodernist thinkerJean Braudillard, in his small mono-graph The Mirror of Production, edu-cated us in the meaning of this dis-tinction: production makes invisiblethings visible; in contrast seductionmakes the previously visible thingsinvisible. We must surely ask whatthe Indian Constitution thus pro-duced and the seduction nowentailed in the current 'Age ofReforms.'

For one thing, the labours ofIndian constitution-makers madefully legible many contradictionsbetween social, economic, and politi-cal life, about which BabasahebAmbedkar spoke about so movinglyat the moment of the adoption of theConstitution. His speech concerningthe 'life of contradictions' frequentlyadorns the discourse of the SupremeCourt of India. These contradictionswere specifically highlighted by theproclamation of the values of equi-table social development in a post-colonial India paired with a grudg-ing insertion of Article 31 rights toprivate property. The history of judi-


LOK ADALATS

Access to justice inglobalised economyIn an age when politics is giving way to market, poor standlittle chance as judiciary too undergoes restructuring. Thisis called for to suit the needs of market economy wherebillionaire's right to remain super rich and plight of themost impoverished to be super-poor are going to beaccepted. Thus, observed Professor Upendra Baxi at adiscussion held to mark the golden jubilee of Indian lawInstitute, New Delhi. Excerpts from his speech

cial interpretation and constitutionalamendments –- from the First to the44th Amendment — archives fullythe endeavour to regulate privateproperty in the means of productionin the name of equity and equalityoffered by state regulation. True, the44th Amendment finally abolishedthe right to property, or ratherdemoted it to a status of merely aconstitutional right. But this cametoo late and constituted too little toserve the cause of equality and equi-ty in constitutional development. Icannot pursue this enormous narra-tive today, save to remind us all thatthe Indian Supreme Court has nowfully reverted to its adjudicatory pol-icy stance in the first three decades ofIndian constitutional interpretationwhich entrenched contract and prop-erty above all fundamental rights.Five out of the six stories that I pre-sent later fully illustrate this trend.

The seduction occurs when thepreambulatory values, the fundamen-tal rights of the masses of Indianimpoverished, and the DirectivePrinciples of State Policy, andFundamental Duties of all Citizens,are rendered relatively invisible byapex policy-makers and summitJustices alike. The Directives in partic-ular represent a vision of constitution-al development ill suited to the con-temporary era of economic reforms.

We have been asked variously,however, at the inaugural occasionyesterday the ways in which Indianlegal education, research, and profes-sion, even the judiciary, may servicethe needs of globalised market. Thelearned Prime Minister urged us torealise that the 'legal world hasbecome a global village' and thatglobalisation signifies vast opportu-nities for us all to become world–classplayers in the global 'markets of law.'He urged us to improve 'the qualityof public discourse' to serve the'needs of the country.' But overallthese needs remained defined anddescribed in terms of India as a glob-al market player. In effect, thelearned Prime Minister, andHonourable Law Minister asked lawstudents, teachers, and profession-als, not so much to become soldiersof justice but rather to act as thecohorts of global capitalism.

At least, that is how I received theirentirely understandable message! I

suspect on a close listening of thespeech of the learned Chief Justice thathe may have had some partial caveatsto offer but I remain unsure andrequest your cooperation in under-standing his subtexts a little better.

I sincerely hope that I am entire-ly wrong in receiving the overallmessage of the inaugural sessionthat contained two rather contradic-tory messages: the rule of lawshould remain global capital friend-ly as well as human rights friendly. Isimply do not know, nor can tell,how this may ever be accomplished.I will have to exit this thematic now,given the time-constraints, but I hopethat what now follows may perhapsillustrate the oxymoronic nature ofthe principal theme of our discussion.

Let me at the very outset say thatthe term 'access to justice' is as mysti-cal as the expression 'globalisedeconomy.'

Careful readers of the recentlydisconcluded WTO Doha Roundwill surely share this perception.One of the key categories thereinvolved was NAMA-- 'Non-Agricultural Market Access'-- aim-ing at worldwide elimination of tar-iff and non-tariff barriers on freetrade. As we know, the US-basedZero Tariff Coalition chaired by anexecutive from Dow Chemical,demanded zero tariffs in a largenumber of crucial sectors includingeven sporting goods, toys, woodmachinery, and wood products! Assome critics explain this, NAMA 'is adream vehicle for corporations seek-ing a global rollback of taxes andregulations.' As we also know, theG90 (a grouping of the WTO's 90percent poorest nations) expressedall kinds of fears concerning the riskthat unbridled global competitionmay pose to their infant industriesand small firms. They articulatedapprehensions that zero tariff wouldescalate further the crisis of de-industrialisation, unemploymentand poverty and result in a kind of'search and destroy mission' for nat-ural resources inherent in NAMA aspromoted by global capital. Theyproposed various measures callingfor information labelling, exportrestrictions on natural resources,and sustainable producers being'dumped' on by cheap imports andin effect for articulation of 'popular

sovereignty' over the right to regu-late market access.

The notion of 'globalised econo-my' then signifies new forms of pre-dation by global capital. Globalisationhere refers to a new form of colonisa-tion without colonisers; put anotherway, a new form of what I describeelsewhere as 'conquest globalisation.'Its earlier forms consisted in directlyvisible and massive appropriation ofterritories, resources, and peoples;the current incarnation remains evenmore sinister because the similarplanned appropriation is renderedalmost invisible.

The task of critique concerningso-called globalised economy con-sists in devising historically accurateways that establish a common identi-ty between the East India Companyand its lethal lineal descendants, thecontemporary personifications ofmultinational capital, via the MNCsand their normative cohorts, theInternational Financial Institutions.These now use the languages ofaccess and claim that such accessremains essential to achievement ofglobal justice! The tasks of humanrights and new social movementsalso thereby stand defined by the slo-gan: Justice consists in a resolute denialof such access.

The massive difficulties con-fronting this task stands posed bywhat Professor Leslie Sklair namesinsightfully as the 'new universalglobalising middle class,' a segmentof which stands here assembled atthis Conference. We all seem, almostwithout exception, to believe that thenew form of conquest globalisation isa good thing, after all. We all use com-puters, cell phones, the internet, theI-Pod, the DVDs, and related devices.We all believe that that the digitaland biotech revolution remain moreemancipative than the 'socialist' revo-lutions of the yesteryear. We all havestories to tell about how access tocyberspace facilitates the formationof new human rights and socialaction/movement solidarities. Andwe believe that if contemporary tech-nologies of globalisation create newproblems, these at the same momentremain endowed with the futureprowess of techofixes that will neces-sarily solve these. In this, we remainconsciously or otherwise juristic/juridical/judicial technophiles, in turn


LOK ADALATS

promoting forms of techno-politics asa crucial dimension of the so-called'good governance.' Through all these,and related moves, uncritically cele-brating the 'globalised economy' ineveryday action we remain complicitwith conquest globalisation.

We all are constantly fed with thepropaganda that the 'network soci-ety' aided by the digital revolutionsfacilitates access to sources of infor-mation hitherto previously unimag-inable and if there may exist any dig-ital divides, processes are alreadyunder way to bridge or at leastabridge it. Like all propaganda, thisrepresents a kernel of truth. But alsoby the same token this also overstatesthe claims of equal access to knowl-edge and information in cyberspace.As the illuminating corpus ofProfessor Manuel Castells shows, therise of the network society may notalways favour access to justice; infact, it may indeed promote forms ofglobal violence and injustice. AndProfessor Peter Drahos alerts us,indwells in the infinite promise ofdemocratisation of information alsothe peril of some new orders of ' infor-mational feudalism.'

Even when lacking the luxury oftime on this occasion to elaborate inany detail the promise and the perilof the new informational capitalismnow firmly in place, please allow meto make one remark: the dominant incivil society and the state in so manydomains of the so-called 'globalisedeconomy' simply, starkly, and withvast orders of politics of cruelty,trump the human rights claims of thedominated; vast masses of humanbeings remain condemned to a pre-occupation merely with cheating theirways into daily survival. Put simply,they remain simply, and uncon-scionably, priced out of the constant-ly otherwise expansive globalised'access talk.'

Contemporary globalisationassumes many forms, where legaland judicial globalisations play amajor role. Legal globalisation con-sists of many 'things'. It signifies themodernisation of the metropolitanlegal profession, lending it a compet-itive edge in the world markets forlegal services. In the process, somevice chancellors of the elite nationallaw schools serve important roles inadvising on matters of constitutional

change, economic policy and lawreform even as they prepare theirstudents for absorption into corpo-rate practice. Legal globalisation alsorefers to new law reform agendashaping the course of the three 'Ds' ofeconomic globalisation: de-national-ization, disinvestment, and deregula-tion. Prominent on this agendaremain the shaping of new regulato-ry institutions, processes, and cul-tures; increased emphasis on alter-nate dispute resolution; simplifica-tion of investment and commerciallaw; and tendency towards accelerat-ed growth of 'flexible labour mar-

kets'. Law reform, especially the effi-ciency of the administration of jus-tice, becomes more visibly the instru-ment of the new economic policy. Aprocess curiously named as 'far glob-alisation' generates some importantlegal changes such as the employ-ment guarantee scheme act, the morevigorous enforcement of child labourlaws, regime of protection of con-sumer rights, and of the right toinformation. Legal globalisation,

overall, serves and promotes theneeds of the new globalising middleclasses of India.

I believe that we must raise arelated question concerning theglobal social origins of all this newlyfangled access to justice talk.Who/which are the forces, managers,and agents of the globalised accessto justice talk? And how may wecharacterise their 'original intent'? Toput the matter rather summarily, itseems to me crystal-clear that themanifold labours of the internationaland regional financial institutions,the triadic communities of states —the United States, the EuropeanUnion and Japan -- and the nowdeeply fractured WTO -- signify by'access' simply the potential for pen-etration of third world markets oflabour and capital in modes thatmake these safer for the communityof multinational corporations anddirect foreign investors. In thisvision, postcolonial national consti-tutions and its laws, manifest them-selves as obstacles to access to theflows of global capitalism. Thus,these now remain heavily subject (asProfessors Stephen Gill and DavidSchneiderman painstakingly remindus) to the newly minted prowess ofthe newly emergent yet fully robust'new economic constitutionalism.'

Allow me to bring home thetragedy of all our access talk in thecontext of judicial globalisation. Inthe sparse but important literatureon the subject, judicial globalisationsuggests a new order of comity andcooperation among the world's apexcourts and justices. At the first sight,there is little objectionable with theidea that apex justices of differentjurisdictions ought to meet witheach other and learn from eachother's achievements and dilemmas,or that they become a cooperative'community' pursuing the tasks ofnational and global justice. Butoften these simple-looking ideascarry some hidden agenda. Judicialcomity is often tinged with hegemo-ny, and at times simple domination.

Thus, for example, Judge Keenanin the Bhopal Case deferred to thecompetence of the Indian courts todecide the complex situation of massdisaster caused by the Union CarbideCorporation; Keenan went so far asto register a desire that he wished the


LOK ADALATS

Contemporaryglobalisation

assumes many forms,where legal and

judicialglobalisations play a

major role. Legalglobalisation consists

of many 'things'. Itsignifies the

modernisation of themetropolitan legal

profession, lending ita competitive edge inthe world markets for

legal services

Indian judiciary to stand tall in com-plex mass torts adjudication! Thesting in the tail was this: any damageaward remained subject to 'due pro-cess' requirement and it was left com-pletely open to a New York equiva-lent of Indian Small Causes Court todecide finally whether the IndianSupreme Court was capable of anycorrect understanding of thisrequirement! Judicial globalisation,in sum, means subservience of theSouth apex courts by the hegemonicNorth judicial fora. I have in myHague Academy Lecture (2000) morefully illustrated this dimension ofjudicial globalisation.

Judicial globalisation furtheroccurs in the name of 'good gover-nance' which requires an intensereform of justicing under the aus-pices of governmental and intergov-ernmental aid and developmentagencies. Again in principle un-objectionable, such auspices oftentake over the agenda of law reformand reform of judicial administra-tion, and shape them in accordancewith their economic and strategicneeds. In particular stands promotedthe idea of judicial self-restraint in

policy matters of trade liberalisation,direct foreign investment, the estab-lishment of company towns, freetrade economic zones, and flexiblelabour markets.

Although 'structural adjustment'is a notion that primarily extends toInternational Financial Institutionsinduced conditionalities that swal-low the hard-won independence ofpostcolonial nations [1], and thisnotion is not thus far covertlyextended to apex adjudicatorypower, prowess, and process. I heresuggest that the WorldBank/IMF/UNDP, and related, pro-grams of 'good governance' under-standably, if not justifiably, pro-mote structural adjustment of judi-cial activism. These covertly address,as well as overall seek to entrench,market-friendly, trade-related formsof judicial interpretation and gover-nance. Judicial self-restraint concern-ing macro-economic policy as thebasis of adjudicatory policy standsproselytised by the already hyper-globalised Indian appellate Bar.Understandably, the processes ofjudicial appointment preclude anyserious regard for the elevation of

noticeably outspoken judicial criticsof Indian globalisation. No longermay the judicial collegium already inplace dare nominate a potentialKrishna Iyer, D.A. Desai, ChinnappaReddy, or even a Bhagwati!

Before I proceed with six stories,please allow me to say that I remainan unabashed votary of judicialactivism, Indian-style, which itremained my privilege to foster andfurther via social action litigation. Inword (in my writings) and in deed(in my interventions/appearancesbefore the Supreme Court of India), Ihave celebrated the many avatars ofIndian judicial activism variously.For example, I have described judi-cial activism as transforming theSupreme Court of India as theSupreme Court for the impoverishedmasses of Indian-citizens; I have cel-ebrated judicial activism as an essen-tial chemotherapy for the cancerousIndian body politic. I have describedin vivid detail, and applauded, theways in which activist Indian Justiceshave proceeded to invent a new juris-diction (which I name as the 'episto-lary' jurisdiction), established newforms of appellate fact-finding


LOK ADALATS

A protest against Bhopal gas leak

(notably via the device of socio-legalcitizen commissions of enquiry), re-scripted fundamental rights consid-ered and rejected by constitution-makers for inclusion in Part III (suchas 'due process,' right to speedy trialand to bail)' and enunciated newgalaxies of human rights (such as theright to privacy and dignity, liveli-hood, environmental integrity, infor-mation and participation). Themany–splendoured distinctiveachievements of social action litiga-tion have already, and continue to,fully assist the processes of re-democratisation' of the Indian consti-tutional polity.

I need to reiterate all this out ofany naïve authorial vanity but as anact of resistance to the forms of legaland judicial globalisation, whichnow foster the art of organised pub-lic amnesia, even concerning the newstyles and habits of the now-taken-for-granted ways of judicial gover-nance of India. At the same moment,it also needs to be said that celebra-tion differs from panegyric orgies,rituals that serve no worthwhile endsthan those pandering narcissisms ofthe moment.

I have been critical of some adju-

dicatory policies and outcomes. Inthis, I am not in any way singular.Activist scholarship everywhere, butmore poignantly in the Indian con-juncture, serves its cause well byabstaining from performances ofjudicial sycophancy, in any case pro-hibited by Article 51-A of theConstitution that urges all Indian cit-izens to develop 'scientific temper','spirit' of critical enquiry and socialreform', and above all the virtue of'excellence' in all 'walks of life'. Insum, this virtue casts a responsibilityon all Indian citizens to expose medi-ocrity in adjudicative policy and per-formance. The Constitution thenrequires of both apex judicial actorsand their critics to shun mediocrityand pursue excellence; these remainin real life, I acknowledge, difficultvirtues to practice.

Allow me, in this milieu, to pro-ceed with my six stories! The firststory relates to the constitutionalityof some globalisation inducedtrade/aid/grant conditionalities. TheSupreme Court had indeed devel-oped the doctrine of 'unconstitution-al conditions' (notably by the exer-tions of Justice Mathew) and the laterdoctrines concerning unconstitution-

al disappointment of legitimateexpectations and of prohibition ofunjust enrichment. All these doc-trines, in sum, dignified strict judicialscrutiny of macro and micro econom-ic/development policies that adverse-ly impacted on equality/equity orhuman rights and fundamental free-doms of the most vulnerable classesof Indian citizens. These doctrinesnow lie buried five fathoms deep.

My first story concerns theactivist challenge to India's acces-sion to the WTO impugned on theground that it violated not just PartIII provisions but also the basicstructure of the Constitution, an emi-nently well-crafted judicial doctrine[put in the Onida-TV advert as'owner's pride and neighbour'senvy'.] The Bombay High Courtrather blithely dismissed the con-tention! On one reading of its judg-ment, the Court, overall, asked thepetitioners to return to its powers asand when any such deleteriousimpact became more manifest!Unlike the classic discourse concern-ing the certification of the interim con-stitution where the South AfricanConstitutional Court subjected it tothe test of basic principles, the Court


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did not even seek to match the blood-group of the WTO agreements, espe-cially the TRIPS, with Parts III and IVof the Constitution. It is no consola-tion, though in a different context, forus to know that the PhilippinesSupreme Court likewise abstained/abdicated its role. May I suggest thatwe read this decisional stance as thefirst step towards the structuraladjustment of judicial review power,process, and activism? To steal afamous phrase from Ronald Dworkin,the eminent Court acts here as a'deputy' to the legislators, let alone as'deputy legislator.'

A second momentous develop-ment towards the structural adjust-ment of judicial role, and activism,occurs through the entirely uncon-scionable and unconstitutional judi-cial orders decreeing the infamousBhopal settlement. Should you findthese words too harsh, I invite yourattention to the text of these orders.The Court there not merely reducesthe compensable amount from theIndian government computed US 3billion dollar to 470 million dollarbut also grants the Union Carbidefull immunity from criminal pro-ceedings and surrogates the Indiangovernment as a fully-fledged fidu-ciary clone of that multinational, andall its world-wide affine, in regard toall civil action in India and at worldat large! Our efforts at review peti-tion saved the Court, at least partial-ly, of the ignominy of a 'done deal'providing criminal immunity toUnion Carbide.

I have written rather extensivelyconcerning this astonishinglyanguishing adjudicatory perfor-mance but also been responsible forreview petitions that ultimately, buteffetely, quash some of these immu-nities/impunities. Twenty-one yearssince, and I cannot speak of this with-out a lump in my heart; the catas-trophic victims remain staggeringlyre-victimised. For the present occa-sion, this narrative suggests a judi-cially induced/managed transitionroom; the paradigm of the universalhuman rights of all suffering peoplesto that of trade-related, market-friendly human rights paradigm.

A third story concerning struc-tural adjustment of judicial activismstands presented in the determinedreversal of the proud labour

jurisprudence of the Supreme Courtitself. The juristic and juridicallabours of Krishna Iyer, D.A. Desai,Chinnappa Reddy M. P. Thakkar,and in earlier times of Subba Raoand Gajendragadkar, even aHidyatullah, are now reversed bymany a hurried stoke of insensitivejudicial pen! A 2006 decision of theSupreme Court [2] even goes so faras to 'denude' all prior contrary deci-sions of their authoritative status!This sweeping dismissal of priorbinding precedents signifies anentirely unaccountable and ratherunprecedented judicial technique inthe annals of the Indian as well asthe Commonwealth judiciary! Thelearned Justice who writes the prin-cipal opinion even goes so far as tosuggest that his predecessorslaboured under a misimpression thatours was a socialist constitution!

This eminent judge compelled amomentous jurisprudential anxietyfor me in my Warwick location. Iscourged the histories of recentamendments to ascertain whethersome recent constitutional amend-ments had after all deleted this 42ndAmendment insertion to thePreamble to the Constitution! Allowme to bring to you the good news thatthis preambulatory recital has sur-vived the ravages of contemporaryIndian globalisation! The bad news isthat this now for the Supreme Courtof India makes not a tattle of difference!

I am not saying at all the laterJustices may not feel free to dissentfrom their predecessors. Nor am Isaying that the predecessors mayclaim any prophetic wisdom over thefuture of constitutional develop-ment. However, I do wish to suggestwith the fullest constitutional sincer-ity that in doing so they remain fullyaccountable at the bar of public rea-son. And in this respect they alto-gether seem now to collectively fail.

A fourth narrative of structuraladjustment of judicial power standsfurnished by the Supreme Court'smomentously meandering jurispru-dence concerning the Narmada Damconstruction. At one decisionalmoment, we are told that the heightof the dam may not be raised withoutthe most solicitous regard for thehuman rights, and human futures, ofthe ousted project affected citizen-peoples. At another decisional

moment stands enacted the unconsti-tutional pari passu principle, underwhose auspices submergence mayactually occur with some indetermi-nate regard for relief, rehabilitation,and resettlement. At a third moment,the affected citizen-peoples standsomehow assured that the Court isnot powerless to render justice tothem even as submergence occurs.Who knows what a fourth momentmay after all turn out to be? The pre-sent writing on the judicial wall fullysuggests the possibility that theCourt may terminally declare thatthe tasks of relief, resettlement, andrehabilitations stand almost fully andmagically accomplished!

A fifth story of the structurallyadjusted judicial role and 'respon-sibility' stands now furnished bythe judicially mandated/mediat-ed/sanctioned urban demolitiondrives that cruelly impose them-selves on the bloodied bodies ofthe urban impoverished. Somerecent judicial performances go sofar as to fully suggest a total rever-sal of human rights to dignity andlivelihood, which the Court itselfsince the Eighties so painstakingevolved. Some court orders go sofar as to mandate, under the pain ofcontumacious conduct, any humanrights-oriented interventionagainst the enforced demolitions.The impoverished urban evacueesstand denied all rights of constitu-tional due process, includingaccess to their erstwhile meagrebelongings. The bulldozers removethe last sight of their existence asdocumented citizens; all evidence


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There is simply noway to 'conclude'

this agonisedpresentation, save by

saying that theaccess talk remains apart of the problem,

not a part of anysolution

of title and occupation (includingthe only 'passport' they possess byway of pattas, their inchoate 'title'deeds, and prominently theirration cards) stand maliciously andwantonly destroyed.

Not too long ago during the 1975-76 imposition of the internalEmergency, such happenings werepoignantly described as emergencyexcesses. Today, these somehow con-stitute the badges of good governance!Surely, structural adjustment of judi-cial activism, or judicial globalisationIndian-style, thus with a single-minded consistency, now produceswith some irreversible human rightsdestructive globalising intendmentsome new judicial productions of theestates of Indian human rightlessness.

A sixth story concerns the harshway in which the Indian SupremeCourt dealt with the 'contempt'committed by Zahira Sheikh. Shesignifies a multiple-produced seriesof texts of victimage constituted sev-erally: first, as an eye-witness to thedestruction by arson of her own kinand affine by the Hindutva mobs;second, as news/views 'commodity'in hyperglobalising Indian massmedia; third, as a resource appropri-ated by local politicians and bysome activists alike and fourth as acommodity in the heavily massmedia inflected markets of humanrights and social movementactivism. Overall here, a deeplytraumatised victim of organisedpolitical catastrophe, or holocaust,stands compelled by the force of cir-cumstance to make contradictorystatements that finally decree herfate as a contumacious Indian citi-zen worthy only of the most severepunishment in the annals of con-tempt jurisprudence.

The same Court, however,remained largely lenient in itsregard for Chief Minister KalyanSingh for an objectively presentedfar worse egregious contumaciousconduct leading to the demolition ofthe Babri Masjid and the communalcarnage that followed. It alsoremained lenient for Arundhati Roy,a historically belated NBA activistfiguration, marshalling the fullrange of powers of InternationalUnion of Journalists, and ShivShankar, a former Union LawMinister, for a while marshalling the

power of judicial elevation. Theiregregious contumacious conductwas thought eligible for the other-wise rather relaxed standards of con-tempt punishment. Yet, the SupremeCourt leaned heavily on Zahira.How may we understand this judi-cial asymmetry in our, or indeed inany access talk, save by the fact thatthat high political status was simplynot available to Zahira?

To depict the scenario thus is notto present any mean-mouthed modeof attributing any class differential inaccess to justice. Yet in dischargingmy citizen responsibility actingunder Part IV-A fundamental dutiesof Indian citizens requires me tohighlight the different strokes of thejudicial exercise of contempt power,which also mark some enormous dif-ferentials of access to free speechunder the Indian Constitution.

How indeed may one fully graspthe forms of politico-judicial tolera-tion of contumacious performancesthat in fact enact different standardsfor highly placed political figures ascompared with ordinary and haplesscitizens? Is it also the case as well thatsome new walls of difference thuserected between globalised and de-globalised Indian citizens? How maywe at all grasp the enactment of dif-ferent tolerance thresholds for pub-lic-spirited criticism of adjudicatorystyles and performances that now sofully enact some contradictory, dual,even multiple, standards of differen-tial access to justice, as an aspect offreedom of speech and expression,even amidst the most traumaticallydevastating moments?

There is simply no way to 'con-clude' this agonised presentation,save by saying that the access talkremains a part of the problem, not apart of any solution. To reiterate,any approach to solution must atleast respond to the followingtypes of questions: How may wede-globalise judicial access, that is,ensure that the overseas andnational capital does not rideroughshod over the livelihood anddignity rights of the working class-es? How may we ensure that in themaking of new Indian global cities,and the enclaves/fortresses of spe-cial economic zones, the samerange of lived human rights to themigrant and urban impoverished

citizens? How may we pour demo-cratic and constitutional content tothe borrowed and imposed lan-guages of 'good governance'? Howlong may the masses of impover-ished Indian citizens be treated asmere objects of development poli-cies that reproduce the lives ofIndian citizens as receptacles ofobscene political waste? How farought the new economic policyremain effectively a human rights-neutral domain of national gover-nance by elected officials as wellthe unelected ones (most notablythe Justices)? How may we allendeavour together for the restora-tion of the glory of the SupremeCourt of India which finally con-verted itself, in the halcyon days ofdemocratisation of access, as theSupreme Court for all haplessIndian citizens?

Perhaps, I may sound to you ascalling for a Jurassic-park-typerevival of Indian judicial activism ofthe seventies and eighties. You maywell want to regard me as a jurispru-dential dinosaur. So be it. For weal orwoe, I am unable to make any coher-ent sense of our access talk otherwise.

Perhaps not; I invite summarilythe gesture of Jean FrancoisLyotard in his Peregrination: Law,Form, and Event when he speaks tous thus: "How may we understandthen the descent into the substrataof necessity, to seek out there themost the meaning of the most irra-tional of historic effects [that resiststhe [construction of] the incompre-hensible and complete tableau ofreality… [that listens]… to theobscure passions, the arrogance ofleaders, the sadness of workers,the humiliation of peasants, and ofthe colonised the anger and thebewilderment of revolt; the bewil-derment, too, of thought [thatinvites] again the thread of class inthe imbroglio of events."

Justice Goswami once spoke ofthe Indian Supreme Court as the 'lastrefuge for the bewildered and theoppressed'. Perhaps, a globalisingIndian Supreme Court needs torecover this increasingly lost adjudi-catory estate?

—The writer is Professor of Law atUniversity of Warwick and former Vice

Chancellor of Delhi University


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"Though the PIL wasoriginally intended to giveaccess to those who wouldotherwise have no voice, itis easily captured byarticulate and wellorganised interest groups"writes Sandra Fredman,Professor of Law, OxfordUniversity, in aforthcoming bookTransforming HumanRights: Positive Rights andPositive Duties (OUP,2008). Excerpts

...Who is the 'public'?The role of thePublic Interest

Litigant. The role of the Court hasbecome particularly contentious nowthat access to the courts via thePublic Interest Litigation (PIL) pro-cess has spread well beyond its orig-inal rationale. Far from only servingthe poor and disadvantaged whowould not otherwise have access tothe court, PIL is now widely avail-able to anyone claiming the publicinterest. The result is that proceduralsafeguards are circumvented evenwhen the normal writ procedurewould not render the court inaccessi-ble. Cases contesting the treatment ofwild monkeys in Delhi jostle withcases contesting the right of privateschools to conduct admission inter-views for very young children. It hasbeen argued that this has increasedthe workload of High Courts and theSupreme Court, which in itselfobstructs access to justice for themost disadvantaged and decreasesthe Court's ability to justice. Butwhether PIL cases make a significantcontribution to the vast increase inthe court's docket remains controver-sial. Certainly the statistical case isnot made out.

More fundamentally, wideningaccess beyond the original con-stituency of poor and disadvan-taged, has resulted in a crucialchange in the perspective fromwhich the case is presented to the

Court. Those who initiate the casehave the power to frame the issuesfor the Court. Widening access there-fore runs the risk that those whoalready have political and economicpower will drown or even scotch thevoices of the poor and disadvan-taged. In this context, as ProfessorUpendra Baxi puts it, the social con-versation easily moves along 'an axisof discursive inequality'. Indeed, thepartial reversal in the court's atti-tude to the poor and disadvantagedreflects, at least in part, the changein the character of the public inter-est litigant. The power of the initiallitigant to shape the case is not, ofcourse, absolute. The decision as towhether to litigate and how to pre-sent it may itself be the product ofdeliberative participation. Nor doesthe litigant have the last word on theperspective from which to view the

case. Framing the issue is only thebeginning of the conversation.Regardless of who initiates the case,the interests of the poor or disadvan-taged can be addressed by interven-ers. However, this is an emptypromise for those who are insuffi-ciently organised or who do nothave the resources to keep in touchwith court developments. More fre-quently they will be drawn into thelitigation after the original ordershave been passed, to redress theimplications of judicial interventionto which they suddenly find them-selves exposed. For example aninterlocutory order was passed onApril 5, 2006 ordering removal ofslum dwellers from Nangla Machislum in Delhi without hearing thepeople affected (SP © No.3419/1999). The affected people thenbrought special petition requesting

PIL and Indian courts


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that they be heard. See Ram Ratan etal v. Commissioner of Police, SpecialPetition, 9/05/06. Alternatively, theCourt itself could raise relevantissues, but this is no substitute forparticipation. Ultimately, a conver-sation between equal participantsis premised on the ability of thepoor and disadvantaged to makethemselves heard. This is notalways the case.

This role of the litigant in framingthe issue can be seen in the contro-versial forestry cases initiated by apetition to prevent illicit felling oftimber in India's forests. In this case,the petitioner was by an ex-estateowner, whose vast tracts of forest inKerala had been taken over by theforest department in the early 1990s,threatening trees his family had pro-tected for generations. In response tothe petition, the Court issued a seriesof interim directions requiring animmediate cessation of all on-goingactivity within any forest in anyState throughout the country (unlessit had the prior approval of theCentral Government), including aban on the felling of trees in the trop-ical forests. Total and immediate ces-sation of all saw mills and mining inforests was ordered, and a completeban imposed on the movement of cuttrees and timber from any of theseven North-Eastern States to anyother State of the country. This ban,however, did not only capture largecommercial enterprises. It also seri-ously affected tribals and otherpoor people living within andaround forests, who depended onthe forests for fuel, fodder, minorforest produce and constructiontimber. Their position was madeeven more difficult by a furtherorder in 2002 order directing stategovernments to summarily evict allillegal encroachment of forestlandssince 1980. Because the indigenousrights of many tribal forestdwellers were not established, thisled to widespread eviction ofindigenous peoples throughout thecountry, a result aggravated by thewidening of the definition of 'for-est' to include all areas conformingto the dictionary definition and notjust those officially registered assuch. One of the key problems wasthe paucity of proper participationby the indigenous people them-

selves, either in the initial litigationor in government decision-making.Although many interveners onbehalf of tribals and forest dwellersappeared at subsequent hearings,this was only in response to theimpact on these people of the court'soriginal directions.

The power of the litigants toframe the perspective can further beillustrated by contrasting cases initi-ated by slum-dwellers asserting

rights to livelihood, with those initi-ated by environmentalists or mid-dle-class property owners assertingrights to a cleaner city. Thus it wasin response to petitions by pavementdwellers themselves that the Courtin the seminal case of Olga Tellisarticulated the rights of slum-dwellers to livelihood and thereforeto remain in the city. The role of thelitigants is apparent from the open-ing paragraphs of the case, which

The agenda of PIL is shaped as a dialecticbetween social activists and courts. Althoughthe PIL was originally intended to give access

to those who would otherwise not have a voice,it is easily captured by articulate and well-

organised interest groups. How then can thisdilemma be addressed?


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clearly present the petitioners' per-spective. The Court not onlydescribes their plight with greatsympathy, narrating the conditionsof appalling squalor in which they,together with nearly half the popula-tion of Bombay, lived. It also stressestheir 'respectability': they were inemployment and had paid rent (tolocal slum lords) for their shelters. 'Itis these men and women who havecome to the Court to ask for a judge-

ment that they cannot be evictedfrom their squalid shelters withoutbeing offered alternative accommo-dation.' By 1996, when cases wereincreasingly initiated by environ-mentalists and middle class proper-ty owners, slum dwellers were nolonger characterised as rights-bear-ing citizens. Thus in the waste-dis-posal case of Almitra, initiated by apublic interest litigant committedto the improvement of the urban

environment, the Court charac-terised the provision of alternativeaccommodation as rewardingwrongdoers. According to theCourt: 'The promise of free land, atthe taxpayers cost, in place of ajhuggi, is a proposal which attractsmore land grabbers. Rewarding anencroacher on public land with freealternate site is like giving a rewardto a pickpocket.'

From this it can be seen that theagenda of PIL is shaped as a dialecticbetween social activists and courts.Although the PIL was originallyintended to give access to those whowould otherwise not have a voice, itis easily captured by articulate andwell-organised interest groups.How then can this dilemma beaddressed? Underlying this questionis a debate both as to what consti-tutes the public interest and who canlegitimately represent it. So far as thepublic interest is concerned, there isclearly an area in which it is obviousthat litigants are representing privatetrade or industrial interests. Earlycases held that standing would notbe granted to those pursuing privateinterests. It is open to state govern-ments to contest the bonafides of PILpetitioners, and they regularly do so,sometimes successfully. Beyond that,however, as the range of litigatedcases demonstrate, the definition ofpublic interest is wide and inclusive.Perhaps this is inevitable, given theimpossibility of a single public inter-est in a highly diverse and complexsociety such as India. This places theemphasis on who can be said to 'rep-resent' the public interest. Baxiargues that the meaning of represen-tation is itself contested. While repre-sentation usually entails 'speakingfor others', deliberative democracyaims to 'speak with others'. Viewedin this light, for the court to imposecriteria of representation might onlydetract from the ability of PIL toredefine representativity as a conver-sation between and among co-equalcitizens. At the same time, it must berecognised that the conversationbetween co-equal citizens can onlytake place if the participants can inreality participate on equal terms.The aim of PIL was always to preventthe court from simply replicating thedisparities in power and economicposition in the wider society. To keep

Bangalore High Court


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this ideal alive requires ongoing vig-ilance. The primary source of suchvigilance must be social activismitself, rather than the top-down con-trol of the court. A key issue is there-fore the willingness and ability ofsocial rights activists to bring socialaction petitions in the appropriatecontexts, and to formulate the claimin such a way as to open up areas ofconversation which the ordinarypaths of 'legality' by-pass and negate.However, the court also has a role toplay in ensuring that the voice of allis actually heard, not just in responseto a question already framed but inthe framing of the question itself.

These dilemmas are well illustrat-ed in the Narmada dam litigation,where the problems raised by allow-ing the Court to determine the repre-sentativity of the plaintiff are high-lighted. In this case, an environmen-tal group brought a PIL to ask thecourt to restrain the government fromproceeding with the construction ofthe dam on the Narmada river, whichwould displace tens of thousands ofpeople. Here the Court refused toaccept the petitioner's credentials inrepresenting the weaker sections ofsociety. The petitioner was an organi-sation which had campaigned againstthe dam largely for environmentalreasons, and although this included aconcern for the interests of those oust-ed by the project, the Court did notregard the petitioner as an authenticrepresentative of those interests.Instead, it accepted the government'sview that affected tribals and peopleof weaker sections would in fact gainfrom resettlement, since many ofthem were living as labourers ormarginal farmers and would be givena house and land of their own.Indeed, it was contended that oppo-nents of the dam were simply 'play-ing the card of tribals and weaker sec-tions' on behalf of the land-owning

class, who were opposing the projectbecause it would deprive them ofcheap labour. In coming to the con-clusion that the oustees would in factbe better off as a result of the project,the Court gave no indication that ithad made any attempt to find ameans whereby these groups couldarticulate their own position. It wasagain only in subsequent hearingsthat these groups were able to articu-late their concerns as interveners, andthis was only after the Court hadallowed construction to proceed paripassu with rehabilitation measures(see further below).

One possibility is to attempt toconfine PIL to those who would nototherwise have a voice, thus return-ing PIL to its original constituencyof the poor and disadvantaged. It isarguable that where litigants do notspeak for those whose poverty orother social disadvantage is a bar toaccess to justice, they should bebound by the rigours of normal civilprocedure, including narrow rulesof standing, rigorous fact-findingand limited remedial powers. Forexample, middle class environmen-tal groups agitating for slum clear-ance would need to bring a claim innuisance and follow the regularcourt procedure to do so. However,this may present practical problemsin screening out the appropriatecases; and may in any event simplytranspose the problem of identifyingappropriate litigants to an earlierphase of the process. The power ofthe court to define who speakswould thereby be unnecessarilyenhanced. An alternative might be anapproach which gives greateremphasis to opening up the proce-dure to all concerned, from the verybeginning of the litigation. Instead,the claim to represent the publicinterest in cases such as environ-mental litigation should be scruti-

nised, and avenues opened up fromthe very beginning of the litigation toensure representation for diverseparts of the public. Thus as we haveseen above, Michelman has arguedthat a Constitutional Court should'reach for the inclusion of hithertoexcluded voices of emergently self-conscious social groups'.

AApppprroopprriiaattee rroollee ooff tthhee ccoouurrttPIL appears to be most successfulwhen the court intervenes to requireimplementation of policies whichhave already achieved broad consen-sus but through apathy, disorganisa-tion or failure to prioritise have notbeen put into action. The right tofood case, as we have seen, turnedexisting policies into fundamentalrights and elaborated on them. Thecourt can also be effective in its inter-vention in cases where there is a con-spicuous gap in policy-making inareas affecting the most fundamentalrights, such as the right to dignityand equality of mentally disabledpeople. A particularly important areain which the court has been instru-

The Indian Supreme Court, faced with powerfuldemands for eviction and displacement, hastaken refuge in a narrow concept of legality

which relies on absence of proprietary rights toshut down any claims at the threshold


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mental in filling a serious gap in leg-islation is that of sexual harassment.In response to a PIL, the Court heldthat sexual harassment constitutes aviolation of women's constitutionalright to dignity, and drafted quasi-legislative guidelines, drawing oninternationally recognised norms.Here, however, the institutional limi-tations of a court taking on a legisla-tive role quickly became apparent.The process of drafting a statute inline with the Court's prescriptionshave proved very difficult, becauseof the diversity of situations the lawneeds to address. This is exacerbatedby the court's delineation of the issueas one for the public sector only .

Where, however, the PIL chal-lenges an existing policy backedby powerful political forces, andestablished in the name of eco-nomic development, the Court'sgrasp of its fundamental rightsmission becomes more unsteady.This has been painfully clear in anera in which the forces of globali-sation and the rhetoric of econom-ic development have permeated

Indian policy-making. In suchcases, the public interest is easilytransmuted to exclude the funda-mental rights of the most disad-vantaged, either through a utilitar-ian calculus or through equatingthe benefit to some parts of thepopulation with the public interestas a whole. Using familiar legalformulae, such as separation ofpowers, legality and deference,courts have in several dramaticcases endorsed the position of thepowerful and the privileged at theexpense of the poor and marginal.Indeed, some would argue that thedeference to globalisation andmulti-national capital makes senseof the Court's simultaneous assaulton pollution, corruption andlabour rights. This can be seen inthree broad areas: urban develop-ment, protection of the environ-ment and dam development.

UUrrbbaann ddeevveellooppmmeennttAlthough India has had severe hous-ing shortages and chaotic urbanplanning for many years, urban

development comes into focus in adifferent way when the aim is to cre-ate cities which are attractive toinward investment and global capi-tal. In this light, urban developmentrequires orderly planning, effectiveservices, anti-pollution measuresand public spaces; all of whichimmediately undermine the claim tourban citizenship of the slum- andpavement-dwellers, the hawkersand the homeless, who now consti-tute nearly a quarter of the popula-tion in 26 big Indian cities. Instead ofaiming for integration, throughhousing, services and schools, thefocus is on removal. The IndianSupreme Court, faced with power-ful demands for eviction and dis-placement, has taken refuge in anarrow concept of legality whichrelies on absence of proprietaryrights to shut down any claims atthe threshold. The result is to char-acterise all those without propertyrights as encroachers, trespassersand even petty criminals. Yet theguiding principle behind humanrights is to challenge legality whenit deprives people of their rights.By failing to regard slum dwellersas urban citizens with equal rights,the courts have strayed from theirhuman rights role.

This can be seen in the string ofcases concerned with eviction ofslum-dwellers. Constituting of wellover 40 million people , slumdwellers have found themselves pit-ted against pedestrians, town-plan-ners, middle class homeowners,environmentalists and local authori-ties in their struggle for minimumhuman rights. While lip service isoften paid to the duty to rehabilitate,relocation is frequently to un-ser-viced sites inaccessible to schools orwork, where displaced people arerequired to pay for a piece of landwith little real utility to themselves.In such cases, the Court has neitherimposed a duty of restraint (againsteviction) nor used its extensiveremedial powers to insist on imple-mentation of positive duties to pro-vide housing and infrastructure. Theresult is that evicted slum-dwellersare forced back into the illegal settle-ments as their only means of makinga living. This can be dated back toOlga Tellis itself, which, althoughusing the vocabulary of a right to


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livelihood, in fact imposed only aduty to consult those facing eviction.Particularly serious was the refusal toinsist that alternative pitches withproper infrastructure be provided asa condition precedent to removals.In one sense, the court's reluctance toenforce such positive duties is diffi-cult to explain since the Court couldhave followed its own example in theright to food case and insisted on theimplementation of existing policydocuments, thus turning a policycommitment into a fundamental rightto livelihood and shelter. In particu-lar, the Delhi Master Plan aims to dealsystematically with Delhi's housingproblems through integration of slumdwellers into housing with the neces-sary infra-structure and accessibilityto sources of work. The plan, whichincludes a significant land allocation,has been consistently ignored.

EEnnvviirroonnmmeennttaall ccaasseessOverlapping with housing issues,and similarly caught between a fun-damental rights approach and theutilitarianism of global capitalism,are environmental concerns, an arenain which the court has been a majorplayer. Many of the environmentalcases upheld by the Court have ofcourse benefited the poor as well asthe middle classes. The Court's inter-vention after public spirited individ-uals drew its attention to the danger-ous leak of oleum gas from factorypremises in Delhi and the dischargeof toxic effluents into the soil inUdaipur are good examples. In thefamous Vehicular Pollution cases , theCourt was faced with governmentstatistics showing that vehicles con-tributed 70% of the air pollution inDelhi and other major cities. Inresponse, it ordered strict measuresto decrease such pollution, includingthe conversion of all public transportin Delhi to the use CompressedNatural Gas rather than petrol. Theresulting drop in pollution clearlybenefits all. Such cases are, however,consistent with a judicial approachwhich views cleaner cities as anessential way of attracting global cap-ital. Other aspects of the environmentraise more complex conflicts of inter-est. In one of its earliest decisions,concerned with illegal quarryingwhich was destroying the Musooriehills near Delhi and interfering with

the water system, the Supreme Courtwas able to take into account theeffect of closing the mines on workersjobs. Thus as well as prohibiting themining, the Court directed that taskforce be set up to engage workers inthe task of aforestation and soil con-servation of reclaimed land.However, in the clash between thedrive for cleaner cities and the needsof the urban poor, the former hasinvariably triumphed. Althoughrehabilitation and resettlement issometimes ordered, as has been seenabove, their efficacy is seriouslyweakened by allowing resettlementto be postponed while environmen-tal measures proceed.

A particularly ferocious instanceof the Court privileging environmen-tal issues over people was the actionin May 1997 of the Bombay HighCourt in ordering the eviction ofinformal settlement dwellers adja-cent to the Sanjay National Park. TheCourt was responding to a petitionfiled in 1995 by the BombayEnvironmental Action Group(BEAG), asking the Court to'remove forthwith' the 'encroachers'in order to ensure protection of 'theenvironment and all its aspects'. Notonly did the Bombay High Courtdirect the relevant authorities to evictpersons from their homes. It alsospecifically ordered the demolitionof shelters and the destruction of all

belongings and construction materi-als. As many as half a million slum-dwellers were potentially affected.A similar pattern can be seen in thedecision to clear the one of thebiggest and oldest slums in Delhi,home to 150,000 people and 40,000homes, which had existed for manyyears on the banks of the Yamunariver. The slum was demolished in2004 by order of the High Court ofDelhi, in response to a petitionbrought by citizens concerned at thepollution and encroachment on theriver. About a fifth of the residentswere resettled on the outskirts ofDelhi, without local services ortransport into the city. The rest wereleft to their own devices. Althoughthe High Court directed that properbasic amenities, including power,water, sewerage, schools, and trans-portation be provided in the rehabil-itation colonies, it refused to stay theeviction until these has been com-plied with. By 2006, little had beendone to implement these directions.While no-one is in any doubt that theYamuna is seriously polluted, theextent to which the slums contributeis controversial. A study titledYamuna Gently Weeps by RN Baruchaputs the contribution of slums tosuch pollution at less than 1 percent.

DDeevveellooppmmeenntt aanndd ddaammssA third area in which the PIL hasrequired the Court to face up to pow-erful political and economic interestsin the name of development concernsthe much contested Narmada damproject. This concerned the construc-tion of a dam on the Narmada river,which would displace many peopleand submerge natural forest land. Theclaimed benefits included providingirrigation to drought prone areas,drinking water facilities to thousandsof villages and urban centres, as wellas power generation. Proposals for theproject, initiated in 1947, had been thesubject of numerous reports and con-sultations, as well as a detailed awardby a statutory tribunal. Financed by aloan from the World Bank, construc-tion eventually began in 1987 and thefirst ten sluices were closed inFebruary 1994. Almost immediately, aPIL was filed, asking the court torestrain the government from pro-ceeding with the construction of thedam and to order the sluice gates to be

The Indian SupremeCourt, faced with

powerful demands foreviction and

displacement, hastaken refuge in a

narrow concept oflegality which relies

on absence ofproprietary rights to

shut down any claimsat the threshold


LOK ADALATS

closed. The facts were heavily contest-ed. The petitioners claimed that theenvironmental clearance given in 1987was based on incomplete evidenceand the proper studies had not beenundertaken. They also claimed thatthe right to life of those who wereousted by the dam had been breached,since it was impossible to fully substi-tute for their way of life through reha-bilitation measures. In any event, theyargued, there was insufficient publicinterest to justify the displacement,given that serious doubts had beenraised about the benefits of the project,in particular, that it would only bringwater to the margins of drought-proneareas and even then would have littlereal effect. For this they relied on the1992 report of an Independent Reviewset up by the World Bank, which con-cluded that decisions had been madeon the basis of questionable orunfounded assumptions without a fullunderstanding of the consequences,that the benefits were overstated andthe environmental impact not ade-quately addressed. Most serious, itfound rehabilitation of all those dis-placed was not possible. The govern-ment cited its own alternative assess-ment, which referred to the many ben-efits the scheme would bring, particu-larly since it was making use of waterwhich otherwise would flow unusedinto the sea. Even the extent of the dis-placement was contested, with thegovernment claiming that the projectwould affect 'only' 245 villages, ofwhich 241 were only partially affected.

Faced with such strongly oppos-ing currents, the Court decided todefer to the political process. In itsview, the decision as to whether tohave an infrastructure project, andhow it was to be executed, were partof the policy-making process, a fieldinto which courts should nottransgress. Its assessment of thedevelopment of PIL is illuminating:'PIL was an innovation essentially tosafeguard and protect the humanrights of those people who wereunable to protect themselves. Withthe passage of time, PIL jurisdictionhas been ballooning so as to encom-pass within its ambit subjects such asprobity in public life, granting oflargesse in the form of licences, pro-tecting environment and the like. Butthe balloon should not be inflated somuch that it bursts. Public interest

litigation should not be allowed todegenerate to becoming publicityinterest litigation or private inquisi-tiveness litigation.' The court reiterat-ed its role in protecting the funda-mental rights of the people. But, itcontinued, 'In exercise of its enor-mous power, the court should not becalled upon to or undertake govern-mental duties or functions. The courtcannot run the Government… In ademocracy, welfare of the people atlarge and not merely of a small sec-tion of the society has to be the con-cern of a responsible government. …For any project which is approvedafter due deliberation the courtshould refrain from being asked toreview the decision just because apetitioner in filing a PIL alleges thatsuch a decision should not have beentaken because an opposite viewagainst the undertaking of the pro-ject, a view which may have beenconsidered by the government, ispossible. When two or more optionsor views are possible and after con-sidering, the government makes apolicy decision, it is then not thefunction of the court to go into thematter afresh and in a way sit inappeal over such a policy decision.'In particular, where there are con-flicts of interest, such as the interestof the people of Gujurat in havingaccess to drinking water, and thepeople whose houses and landwould be submerged, it was for thegovernment to resolve, and the Courtshould not sit in appeal.

The majority of the Courtachieved this outcome in two ways.First, it held that the petitioners weretoo late to challenge the constructionof the dam itself. Although it accept-ed that complete data with regard tothe environment were not availablewhen the Government gave clearancein 1987, it was held that the petition-ers should have acted immediately tochallenge the project, rather thanwaiting until hundreds of billions ofpublic money had been spent. 'It isagainst the national interest and con-trary to established principles of lawthat decisions to undertake develop-mental projects are permitted to bechallenged after a number of yearsduring which period public moneyhas been spent in the execution of theproject.' It was therefore only its con-cern for the protection of the funda-

mental rights to life of the oustees inrespect of the relief and rehabilitationmeasures that the Court was pre-pared to entertain the petition.

Secondly, the Court used a verylight touch standard of review, ask-ing only whether decisions had beentaken bona fide and with 'applicationof mind'. On the basis the very manydiscussions and documents receivedby the government, the Court heldthat it was not possible to concludethat the environmental clearance hadbeen given without proper applica-tion of mind. However, there is amiddle ground between substitutingfor the decision of the relevantauthorities, and deference to authori-ty decision-making. This can be seenin the dissenting judgement ofBharucha J. While he did not claimthat the Court should make the deci-sion, he did hold that where theimpact on the environment couldhave disastrous consequence formany generations, the Court's con-stitutional responsibility underArticle 21 (the right to life) requiredthe Court to ensure that the projectdid not go ahead until those best fit-ted to do so have had the opportuni-ty of gathering all necessary dataand assessing it. Such data had not,in his view, been fully gathered.Environmental clearance was basedon next to no data in regard to theenvironmental impact of the project,and therefore, in his view, could notbe considered clearance at all.

So far as the right to life of the ous-tees were concerned, the majority wascontent to accept the contention of thegovernment that the planned resettle-ment and rehabilitation would leaveoustees better off than before. Thus itwas held not only that displacement ofthe tribals and other persons wouldnot per se result in violation of theirfundamental or other rights; but alsothat on their rehabilitation at new loca-tions they would have more and betteramenities than those they enjoyed intheir hamlets; and their gradual assim-ilation in the mainstream of the societywould lead to betterment andprogress. The majority was in anyevent prepared to go along with a util-itarian calculus, which saw the costborn by those ousted by the dam aswell compensated for by the benefits toothers including fulfilling the right towater of people who suffer due to


LOK ADALATS

water shortage. Thus, the court refusedto require the scheme to be put onhold, either to carry out further impactassessments, or to institute rehabilita-tion measures should be implementedpari passu with the raising of theheight of the dam. This again con-trasts with the dissenting judgement,which insisted that the rehabilitationprojects be both designed and imple-mented before the reservoir wasfilled, rather than, as the majorityheld, simultaneously with the devel-opment of the dam. In practice, isclear that promises to rehabilitatehave been reneged on and states havedisputed the legitimacy of manyclaims on such grounds as that theyare not permanently affected or arethe sons of the original oustees.Nevertheless, in subsequent hearings,while insisting that rehabilitation beimplemented, the court has refused tohalt construction until such rehabilita-tion has been accomplished.

CCoonncclluussiioonnHow then should the innovative PILprocedure be assessed in respect ofthe promotion of positive duties aris-ing out of human rights? Baxi arguesthat 'the growth in constitutionalfaith overloads adjudicatory powerwith great expectations, which itdoes not quite efficiently manageand which it may not always fulfil.'The result has been that 'judicialactivism is at once a peril and apromise, an assurance of solidarityfor the depressed classes. as well as asite of betrayal.' Indeed, he con-cludes: 'Courts are, at the end of theday, never an instrument of totalsocietal revolution: they are best…instruments of piecemeal social engi-neering… never a substitute fordirect political action.'

This suggests that the PIL juris-diction should not be judged byexpectations it cannot fulfil, butinstead be tailored to achieve what itwas intended for. A central aspect ofthis mission is to step in when gov-ernment fails to act to achieve posi-tive freedom and fulfil humanrights. At the same time, there is noreason to believe that courts willalways succeed where governmenthas failed. Even under the PIL proce-dure, courts have limited fact-find-ing facilities, and appointed commit-tees do not in themselves have the

resources to ensure that courtdecrees are fulfilled. In that sense,courts cannot substitute for recalci-trant governments. Nor can theyreplace political activity. What courtscan do, however, is to act as a cata-lyst for the democratic pressureswhich ultimately make recalcitrantgovernments act. At its most basic,the PIL procedure enables ordinarypeople to require governments to beaccountable, that is, to come to courtand explain and justify their actionsor inactivity. Beyond that, the PILprocedure, with its open doors to allinterested parties, facilitates genuineconversation, requiring govern-ments to listen and interact with civilsociety, and groups within civil soci-ety to listen and interact with eachother. Most importantly, it permitsthe conversation to take place onequal terms. The judicial forummakes it possible to restore whatBaxi calls the republican virtue ofcivility, that is that everyone is treat-ed as an equal citizen. To maintainthis, courts should take care that toavoid capture by those who alreadyhave political power in society,remaining true to its original mis-sion of ensuring that the poor anddisadvantaged are given an equalvoice within judicial proceedings.Courts should also remain clearlyfocussed on their human rightsrole, both in respect of positiveduties and duties of restraint. Thisentails avoiding both the temptationto range too far from fundamentalhuman rights (as in whether smallchildren should be interviewed forprivate schools) and the temptationto retreat into a narrow concept oflegality or deference to authority.

But should the court involvementend with the conversation? Orshould it go much further, as theIndian court has done, to set thedirection for change and then policeits implementation? Judicial deci-sions must be taken; thus it isinevitable that there should bemoments of closure in the conversa-tion. However, as Habermas shows,such moments are only pauses in thediscourse. Moreover, as Baxi puts it,there are 'civil' and 'uncivil' means ofapplying closure. The way in whichclosure is effected can open up newbeginnings, but can also constitute apoint of no return. The ideal would

be for the court to energise the polit-ical process, rather than paralysing itby taking over its functions. Positiveduties, as the directive principlesenvisage, should be primarily ful-filled by the initiative of the demo-cratic process itself, with the courtsacting as facilitators rather than sub-stitutes. Moreover, in order toachieve a just closure, the courtshould not see its role as not a free-wheeling political one, but onewhich is structured by the humanrights values from which it gains itslegitimacy. The danger of the PILprocedure is that its openness tomany voices might lure courts intoreaching closure in terms of interestbargaining rather than through adeliberative mechanism wherebyequal parties to a conversation fleshout and apply human rights values.Notions of the public interest as apluralist's bazaar, in which interestgroups bargain according to theireconomic and political strength, arenot appropriate in the judicialforum. But its openness to many per-spectives is also its strength, provid-ed that in transcending the limita-tions of the bipolar adversarial pro-cess, PIL is used to facilitate deliber-ation in place of interest bargaining.

The court's continuing role insupervising the implementation ofpositive duties carries similar risksand strengths. By allowing litigantsand interveners to return repeatedlyto the court, PIL ensures that closureis dynamic and flexible, a continua-tion of the social conversation inorder to find the most effective wayof achieving its human rights mis-sion. On the other hand, if it takesover too many executive functions,the ongoing supervisory jurisdictionof the court, whether through com-missions or otherwise, can itselfbecome rigid and inaccessible, par-ticularly if it means a Supreme Courthearing every few months.Energising the political processrequires the creation of structureswhich can themselves manage imple-mentation, which are responsive tothe range of interests, and which candeal with polycentric implications,with judicial supervision acting as afacilitator rather than a substitute.This is of course a delicate tightropeto walk, but is nevertheless a goal tobe aspired to.

Judicial activism is a contestedphenomenon, with the liberalsand even the conservatives

championing it while denouncing itsparticular manifestations. In this arti-cle, I examine the recent judicialpractice of one of the most activistjudiciaries in the world, that of India,where progressive politics is often,and bsometimes always, associatedwith an activist and benign court.

Indeed, the Indian SupremeCourt has a global reputation as atorchbearer on human rights. In thisarticle, I adopt a social movementperspective to understand the actualimpact of the court on the strugglesof the poor for livelihood, resources,values, and identity, enacted throughstruggles for the recognition andrealisation of economic, social, andcultural rights. After an analysis ofthe record of the Supreme Court ofIndia, I conclude that the Court hasincreasingly shown a bias againstthe poor in its activist rulings andmade judicial activism a more prob-lematic device for social movementsin India to rely upon.

To explain why this is happening,the article introduces two ideas: first,the emergence of the judiciary as anorgan of governance and its atten-dant problems, and second, the inter-nally biased nature of the rights dis-course which tends to reproducebinary arguments for either increas-ing state capacity or for increasingchoice of goods in the marketplace.

The article concludes by explor-ing lessons from the jurisprudence ofother countries and international law


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Is judiciary biased against the poor?

The onset of globalisation and liberalisation are resetting not just terms of market andtrade but priorities in the judicial arena too are undergoing significant changes. Hopeignited among poor and less privileged through the seventies by a series of epoch makingrulings in their favour by Supreme Court in India has started fading as court has of latebeen takding quite different view of issues involved, writes BBaallaakkrriisshhnnaann RRaajjaaggooppaall in hiscritical evaluation of the highest Indian court. Excerpts from his appraisal

and urges the Indian Supreme Courtto reinvent a jurisprudence informedmore by the social movements of thepoor.

Social movements in India havedepended heavily upon the IndianSupreme Court since it began itsactivist phase in the late 1970s.Human rights groups and con-cerned citizens have approached theCourt for remedy, and the Court hasresponded impressively. It hassneaked "due process" into Indianjurisprudence to curb detentionwithout trial, expanded the mean-ing of right to life under Article 21to include livelihood and environ-ment, defended the freedom of themedia, guarded the rights ofemployees, read some DirectivePrinciples in Part IV such as basiceducation into fundamental rights,taken measures to advance genderjustice through a progressive incor-poration of international law intodomestic law, and innovated proce-dural measures such as an expan-sive concept of standing, continuingmandamus, and court-appointedcommissions of inquiry. Indeed, itwill not be an exaggeration to saythat most social movements in Indiasince the 1970s have actively usedthe courts - especially the SupremeCourt - as part of their struggle,whether it be the women's move-

ment, the labor movement, thehuman rights movement, or theenvironmental movement. Despitethis activism, it is now increasinglyrecognised that the impact of theCourt on ground reality has notbeen consistent.

In the area of human rights forinstance, studies show that theCourt's seminal rulings are often nottranslated into reality for a range ofreasons. In addition, the Court'sactivism, especially under theumbrella of social action litigation(SAL), has itself come under criticismfor its undemocratic nature, lack ofeffectiveness and judicial grand-standing, and its alleged violation ofseparation of powers. As one distin-guished observer of judicial activismputs it, "judicial activism is at once aperil and a promise, an assurance ofsolidarity for the depressed classes ofIndian society as well as a site ofbetrayal."

In this essay, I join this critiqueand call attention to the limitations ofjudicial activism, as it has been prac-ticed more recently, for a progressivesocial movement politics. Ratherthan criticizing judicial activism forits counter-majoritarian character orits lack of effectiveness on theground, I focus attention on the ideo-logical character of the Court's par-ticular approach to human rights. Inparticular, I suggest that the Court'sactivism increasingly manifests sev-eral biases - in favour of the stateand development, in favour of the

rich and against workers, in favourof the urban middle-class andagainst rural farmers, and in favourof a globalitarian class and againstthe distributive ethos of the IndianConstitution - that, when takentogether, result in an ideologicalinterpretation of human rights. Thisideological interpretation is theresult, I suggest, of at least twodynamics: the first one is internal tothe Court itself and grows out of theparticular history of the evolution ofthe Court since 1970s, as an organ ofstate governance thereby leading tothe emergence of what I call "judicialgovernance".

The second, a dynamic that isexternal to the Court and is the resultof the human rights discourse itself,especially as it has been constructedat the international level and repro-duced at the domestic level. The firstdynamic neutralises the transforma-tive potential of the Court, whereasthe second dynamic shows theinherently elitist and anti-poornature of international humanrights. These dynamics produce aconstrained, court-centeredapproach to human rights, despitethe occasionally inspiring judgmentsthat emanate from the Court. I arguethat this constrained approach by theCourt to human rights is primarilybecause of its concern that its deci-sions are compatible with an overall"logic of the state" in which the high-er judiciary plays its appointed roleas an instrument of governance


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In the area of humanrights, studies show

that the Court'sseminal rulings areoften not translated

into reality for a rangeof reasons. In

addition, the Court'sactivism, especially

under the umbrella ofSAL, has itself comeunder criticism for itsundemocratic nature

much more often than its traditionalrole as an institution of justice. Thisnotion of "judicial governance"imposes inherent limitations on theextent to which the Court can beexpected to be an active part of socialmovement struggles for the realisa-tion of human rights, particularlythose rights that are sought to beexercised in conflict with statist anddevelopmentalist ideologies.

"The Supreme Court and HumanRights: A Mixed Record" provides abrief survey of the Indian SupremeCourt's mixed record in protectinghuman rights, including the incorpo-ration of international legal norms. In"Explaining the Mixed JudicialRecord: Judicial Governance and theIdeology of Judging," I explain thatthis mixed record in protectinghuman rights is the complex productof several factors including the evo-lution of the Indian Supreme Courtas an organ of governance, its histor-ical tensions with the legislature, itsexpansion of the human rights agen-da because of its prominence as a siteof movement politics, and the politi-cal and class alignment of individualjudges. "The Ideology of HumanRights Discourse and the Limits ofthe Court's Value to SocialMovements" discusses the ideologi-cal biases that are inherent in the dis-course of human rights itself, includ-ing the biases against economic,social, and cultural rights, whichoperate to render the Court asmarginal to social movement strug-gles, even when it tries to incorporateinternational norms into domesticlaw. In particular, I focus on the waythe realisation of economic and socialrights under international law is seento be dependent upon either statecapacity or greater free market-ledconsumption and argue that this con-ceptualisation is part of the reasonwhy the Court has been biased. In"Judicial Activism on SocioeconomicRights and Social Movements:Lessons from Abroad," I discusssome recent dissident strands ofcomparative and internationaljurisprudence on human rights,which have had a much more activerelationship with social movementpolitics, and ask whether the IndianSupreme Court can learn any lessonsfrom this experience. In"Conclusion," I conclude by arguing

that the Court must abandon its ide-ological approach to human rightsand refashion its jurisprudence inways that strengthen social move-ment struggles of the poor.

SSCC aanndd HHRR :: AA mmiixxeedd rreeccoorrddThe human rights record of theIndian Supreme Court is, by andlarge, a product of the post-Emergency period in Indian poli-tics. Partly because of its desire toatone for its mistake in deciding theinfamous habeas corpus case, andthereby to recover the moral groundthat it had lost among the public,the Supreme Court began an activistphase, interpreting constitutionalrights liberally to expand thedomain of freedom. Its focus on

human rights was also politicallyacceptable given that the Janata gov-ernment in power between 1977 and1979 could only favourably lookupon a Court which was trying toaddress some of the worst legacies ofthe Emergency such as the abuses inprisons. Thus, in a series of cases theCourt expanded the legal rights ofdetainees and under-trials,addressed custodial deaths andextra-judicial killings, awarded com-pensation for violation of fundamen-tal rights, and expanded the substan-tive meaning of equality throughaffirmative action. The Court has alsoexpanded the rights of womenincluding rape victims and the rights

of children. Its commitment tohuman rights continues to inspirepublic admiration, as the public reac-tion to the recent Best Bakery Caseshows. In many of these cases, theCourt has liberally interpreted theconstitutional provisions, readinginternational law into domestic law.Many of these human rights rulingswere made possible through a proce-dural revolution that is a uniqueIndian contribution to the world,through the democratisation ofstanding to sue and through suchinnovative devices as a continuedmandamus and judicial commissionsof inquiry. The Court has convertedan ordinary list of fundamentalrights into a veritable weapon of theweak through creative judicial inter-pretation. In this, the Court wasdoubtless riding a human rightswave, driven by a range of socialmovements that were sprouting allover India in the aftermath of theEmergency, and were seeking refugein the Court after finding thatbureaucratic and traditional politicalavenues of action were proving to bemore intractable.

Despite this laudable activism inhuman rights, the Court's record ischaracterised by a serious measure ofsubstantive adhocism. In particular,the Court's record on economic,social, and cultural rights remainsdeeply unsatisfactory. With somenotable exceptions, such as a judg-ment dealing with the right to educa-tion, the record of the IndianSupreme Court in enforcing interna-tionally recognised economic, social,and cultural rights is patchy and isgetting worse, especially when com-pared to the heyday of its activismwhen Justices such as Krishna Iyerand Chinnappa Reddy were on thebench. In the area of labour rights,despite the impression that theIndian Courts remain sympathetic tolabour because of India's pro-labourlaws, the record of the Court showsan inconsistent approach withoutaffording protection to crucial rightssuch as the right to strike, although ithas passed several important judg-ments relating to the abolition offorced, bonded, and child labour.Although many of these latter judg-ments remain current law, they wereall issued in the early 1980s and notafter the economic liberalization


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The Ideology ofHuman Rights

Discourse and theLimits of the Court's

Value to SocialMovements

discusses theideological biasesthat are inherent in

the discourse ofhuman rights itself

began in earnest in 1991. Indeed, ajudgment that refects the currentjudicial trend is the Court's decisionin the T.K. Rangarajan case, declar-ing that the Tamil Nadu govern-ment employees had no legal,moral, or equitable right to strike.While individual judges in the pasthave shown a great deal of sympathyto labour, including Justices Desaiand Krishna Iyer, the more recentcrop of judges appears to display lesssympathy. This change in the atti-tude of the judges towards labourrights cannot be divorced from thebroader socioeconomic context ofliberalisation, privatisation, andWorld Bank and InternationalMonetary Fund (IMF) demands forthe reform of labor laws since 1991.

Even in the case of land rights as adistinct category of human rights, theCourt's record is far from satisfactory.The record of the Court during thefirst two decades of its existence couldonly be described as a grudging andresigned support, as it struggled toconstrain the political branches fromcarrying out the agrarian/land reformthat was seen to be necessary torealise the vision of the Constitution.Thus, the Court frequently held thatsuch land reforms violated aspects ofthe constitutional right to property,especially the requirement to paycompensation , even as it upheld theprotection of land reform laws fromjudicial scrutiny. The attitude of theCourt began to change in the early1970s as more pro-poor judges suchKrishna Iyer, and Bhagwati joined theCourt began to uphold agrarianreform, especially under the newConstitutional amendments that hasbeen adopted to shield land reformlaws from judicial scrutiny.

…This nuanced understandingof the importance of agrarianreform and land rights was, howev-er, limited to some justices and tem-porally limited between the early1970s and the early 1980s. On thewhole, the record of the Court hasbeen more in favour of propertyrights, narrowly construed, andnot land rights. The agonised andcomplex balance that the Courtstruck in Kesavananda Bharartibetween the amendment power andthe structural integrity of theConstitution could also be seen,from one angle, as a balance

between property rights and humanrights. Indeed, with the repeal ofthe property rights clause in theConstitution through the 44thAmendment in 1978, it could besaid that the role of the Court insecuring land rights (as opposed toproperty rights) has been almostnegligible. This was so even duringthe 1970s, when the political focuswas on the issue of land, as com-pared to the more activist role of the

political branches at the federal andstate levels. Since the mid-1980s,and especially since economic lib-eralization began in 1991, landissues have not been at the top ofthe political or judicial agenda.

In cases relating to housingrights or the right to health, theCourt has rarely shown the kind ofaggressive public policy interven-tionism that it exhibits in other areassuch as the environment. Even inlandmark rulings such as OlgaTallis, the Court has never ruled thatthe slum dwellers actually had aright to housing but only that aneviction without notice and a hear-ing would amount to an arbitraryviolation of their right to livelihoodwhich is part of the right to lifeunder Article 21. What is affirmed isthus a right to a process and not a

remedy for the structural violationitself. The removal of the right toproperty as a fundamental right bythe 44th Amendment to theConstitution in 1978 has also made itmore difficult to advance a claim ofright to housing understood substan-tively as a spatial assertion by anyindividual, despite the presence ofArticles 31A and 300A which providefor some elementary property rightsprotections. Although the Court hasnot hesitated from using even softlaw sources such as resolutions of theUnited Nations (UN) or even theInternational Law Commission toreinterpret Indian constitutional pro-visions relating to environment, sus-tainable development, or workplacegender discrimination, it does notshow the same kind of adventurismwhile dealing with socioeconomicrights such as housing. This is surelynot because of lack of legal sources.For example, in the infamous case ofNarmada Bachao Andolan in 2000,the Court put its seal of approval onthe largest Court-sanctioned forcedeviction in the world, althoughabundant international legal materi-als existed to show that the raisingof the height of the Sardar Saroverdam was contrary to current legalstandards. Although counsel in thatcase argued that the forced eviction oftribal people was a violation of rightto life under Article 21 read withInternational Labour Organisation(ILO) Convention 108, to which Indiais a party, the Court rejected the argu-ment. But it is remarkable that coun-sel did not argue that several eco-nomic, social, and cultural rights ofthe tribal people were violated underthe International Covenant onEconomic, Social and Cultural Rights(hereinafter ICESCR), to which Indiais a party, showing perhaps howmuch salience the language of socioe-conomic rights has before the Court.Nor did counsel argue that theNarmada tribal peoples had a consti-tutional right to carry on a trade orbusiness according to Article 19(1) (g)of the Constitution or that the tribalpeoples had a property right underArticles 300A and 31A. In effect, thishas meant that constitutional rights -to trade, do business, or to property -are recognised by the Court only forthe rich and not for the poor who areoften outside the formal legal system


LOK ADALATS

...in the case of landrights as a distinctcategory of humanrights, the Court'srecord is far fromsatisfactory. The

record of the Courtduring the first two

decades of itsexistence could only

be described as agrudging and resigned

support...

and, therefore, lack any formal enti-tlements under state law.

Subsequent case law on theNarmada dispute only reconfirmsthe inability or unwillingness of theSupreme Court to ensure even aminimal adherence to the rule oflaw and due process in the construc-tion of India's largest dam projectand, indeed, makes the 2000 judg-ment appear benign by comparison.After dragging the case through theCourt for another 5 years, followedby an apparently favorable ruling in2005 for the displaced people onprocedural grounds, the Court hasonce again struck a grievous blowagainst the rights of the displacedpeople in the Narmada valley byallowing the further raising of theheight of the main dam in the pro-ject, although most of the displacedpeople have not been resettledaccording to the Court's own previ-ous orders. This troubling failure ofjustice has occurred despite a find-ing of utter noncompliance by theauthorities to fulfill the terms ofresettlement, according to a confi-dential report prepared by a Groupof Ministers appointed by the PrimeMinister, and which was followedby an unprecedented 20-day fast bythe leaders of the affected commu-nity in New Delhi.

This could be contrasted to otherrecent cases wherein the Court hasrecently displayed remarkableactivism in upholding the rights ofurban landlords under Article19(1)(g) and struck down theBombay Rent Control Act. Onlyfierce agitation by the tenants in theaftermath of the judgment prevent-ed the government from revisingthe rents upwards. On top of this,the Court ordered the governmentof Maharashtra to change the lawforthwith, intruding into the leg-islative domain through activismthat learned observers see as a viola-tion of separation of powers.

In addition, the Court's deci-sions are increasingly characterisedby an urban and elitist bias againstthe poor and the countryside. In arange of cases involving conflictsbetween protection of the environ-ment and workers' rights/tribalrights/ housing rights, the Court haschosen the former, without bother-ing much to balance the two objec-

tives. When the Court orders pollut-ing industries to be closed, theworkers and their families who aredirectly affected are rarely heardbefore orders are issued. TheCourt's remarks often display muchattention to the environmentalissues that are of importance tourban dwellers, such as pollution,while showing relatively less atten-tion to rural livelihoods, which areoften intricately tied to the land andforests. In the Narmada case, forinstance, the Court showed com-plete callousness regarding theplight of the rural and tribal peopletargeted for displacement and

declared that "the displacement ofthe tribals and other persons wouldnot per se result in the violations oftheir fundamental or other rights.The effect is to see that, on theirrehabilitation at new locations, theyare better off than what they were.At the rehabilitation sites, they willhave more and better amenitiesthan which they enjoyed in theirtribal hamlets. The gradual assimi-lation in the mainstream of the soci-ety will lead to betterment andprogress." Implicit in this is thenotion that rural and tribal liveli-hoods are inferior and bound to bedisplaced through urbanisation andmodernisation. Likewise, theCourt's activism in the environmentarea is also characterised by a readi-

ness to protect the environment andhealth of the rich while ignoring thestructural poverty and governmen-tal failure that causes these healthproblems in the first place.

… A fourth new issue that mustbe noted is the rising concernabout the increasing incompatibil-ity between fundamental norms ofinternational law relating tohuman rights and other aspects ofinternational law that promoteeconomic globalisation. In particu-lar, conflicts are emerging betweenthe international trade regime onthe one hand and norms protectinghuman rights and environment on

the other. Similarly, conflicts haveemerged between the policies of theBretton Woods institutions andnorms of international law in thearea of human rights and environ-ment. The Court cannot remainoblivious to these developments. AsIndia enforces its obligations underthe World Trade Organisation(WTO) regime of treaties throughthe enactment of statutes, the Courtis likely to see legal challenges tothese statutes on the ground, interalia, that they violate internationalhuman rights law, and the Courtmust decide on conflicts betweentrade law and human rights law. Inother words, the Court cannot sim-ply call for the incorporation ofinternational law into domestic law


LOK ADALATS

in cases involving human rights,when there are several unresolvedissues concerning the incorporationof other branches of internationallaw into domestic law and the rela-tionship between different branchesof international law once they areincorporated into domestic law. TheSupreme Court has not begun pay-ing attention to these issues nor hasthe Bar begun engaging with them.In addition, questions are increas-ingly arising about the legalresponsibilities of internationalinstitutions such as the WTO,World Bank, and the IMF, whichremain oblivious to the broad obli-gations of all actors under interna-tional law to respect human rights.These organisations are not sub-ject to the jurisdiction of the Court.Because of their diplomatic immu-nity, they cannot be sued in nation-al courts even when they violatehuman rights norms through theirpolicies and projects. To addressthis partially, the World Bank estab-lished the Complaints Panel in 1993but that body is not a judicial one. Itdoes not apply international law;rather, it simply checks if the pro-jects complained of have violatedthe World Bank's own internal poli-cies known as "operational direc-tives." The IMF's Ombudsman iseven weaker and does not allowcomplaints from individuals to beentertained. The WTO has no mech-anism for complaints by individualsor groups from states that lose in itsproceedings. The impartiality andindependence of WTO panels andits Appellate Body leave a lot to bedesired and poor countries - letalone vulnerable groups withinthese countries - have very little, ifany, say in how the WTO is run.Yet, these organisations have a pro-found impact on the human rightsof poor people, farmers, women,minorities and indigenous groups,fishermen/women, and other vul-nerable groups. These impacts aremostly on the livelihoods and cul-tural identity of these groups andindividuals. The last refuge of thesegroups and individuals is often theSupreme Court, and the Court mustbegin to fashion a jurisprudence ofremedies for wrongs that areattributable to overseas entities.Indeed, it is not inconceivable that

the decisions of international bodies- whether the Security Council orthe WTO - may end up beingreviewed by domestic constitution-al courts such as the IndianSupreme Court in the future,involving difficult questions of bal-ancing different aspects of interna-tional law in domestic enforcement.In many of the new areas of chal-lenge, adjudication is some way off,and even if begun, it may not imme-diately and by itself change the pro-found inequities of the internationalsystem with its misdistribution ofresources, gender and race oppres-sion, and assaults on cultural identi-ties. On the other hand, an activistjudiciary may make an importantdifference to the politics of reformin many social and economic areasby compelling national states andinternational agencies to acknowl-edge that there are limits to whatthey can do even in the name of"progress" or "development."Judicialising socioeconomic rightsmay also serve to recover humanrights from their self-imposed limi-tations, by aiding the political andsocial demands of social move-ments, but only so long as socioeco-nomic rights are reconceptualised,

as I have argued…

CCoonncclluussiioonnI have argued in this article that theIndian Supreme Court's record inprotecting human rights shows a biasagainst socioeconomic rights of thepoor and the dispossessed and thatthis bias may be explained by twosets of factors: a first set of factors,internal to the Indian system, thathave positioned the Court as anorgan of governance, thereby sharingthe biases of many of the goals andmethods of governance itself; and asecond set of factors that derive fromthe biased nature of the human rightsdiscourse itself. I have also arguedthat recent international and compar-ative judicial experience has much tooffer the Indian Supreme Court totransform its jurisprudence into amore people-friendly one.Socioeconomic rights do not have toremain second-class rights, to whichcourts pay lip service and even thenonly so long as theyfit into a develop-mentalist world view.

However, to do so, these rightsmust themselves be reconceptualisedto move away from market funda-mentalism, state fetishism, and theculture-ideology of consumerism.They must, instead, be refashioned ascounter-hegemonic mobilising strate-gies in which the Court and socialmovements partner to achieve socialjustice. The Court must also begin topay more attention to emergingdimensions of socioeconomic rights,including the responsibilities oftransnational corporations and agen-cies and the relationship between dif-ferent branches of international law indomestic law. There are creativeopportunities for expanding thejurisprudence of the Court. There area number of substantive and procedu-ral areas where the frontiers of lawcan be pushed to make it more legiti-mate. The Court's legitimacy willdepend to a large extent on its abilityto offer support to social movementstruggles which are primarily focusedon the realisation of economic andsocial rights at a time of economic lib-eralisation and globalisation.

—The writer is Ford AssociateProfessor of Law & Development as wellDirector, Programme on Human Rights

& Justice MIT, Cambridge, MA


LOK ADALATS

The Court must alsobegin to pay more

attention to emergingdimensions of

socioeconomic rights,including the

responsibilities oftransnational

corporations andagencies and the

relationship betweendifferent branches ofinternational law in

domestic law


LOK ADALATS

You were instrumental in passinga resolution by the Delhi Bar Councilthat, among other things, registeredits opposition to Lok Adalats (LA).Why are you dissatisfied with thejudicial system generally and LAmainly?

Justice delivery system is not incontrol of its assigned task. It is notworking as per the suppositions of ajudiciary under a democracy, nor it

has been able to come up to people'sexpectations that are as simple asdoing justice. This is how not onlyLA but also processes like mediationand conciliation have been intro-duced. They are at best experiments!Yet they have been sold as replace-ments to regular hearings and dispo-sition of cases by regular courts.Litigants facing delays, procrastina-tion and little sign of getting their

cases decided accept hearing of theircases by LA, or involvement of amediator or conciliator. So these areat best alternative dispute resolutionmechanisms for which the mandatecomes through only because of thedelay in deciding the cases andmounting backlog of cases in courtsand thereby these are meant to helpcourts more than the litigants or peo-ple seeking justice.

'Lok Adalats cannot be a solution'Faced with spiralling backlog of cases throughout the country, courts started looking for'improvisations'. Lok Adalats are results of the experiments resorted by the stalwarts ofthe judicial system, says RRaajjiivv KKhhoossllaa, former president of Delhi Bar Association. This,according to him, was a tacit acceptance of judicial system's inability to cope with theirmain task of hearing and deciding cases brought before them either by citizens, or statefunctionaries who draw their authority from the people of the country like the judges forConstitution vests authority mainly among people alone. Khosla spoke to Combat Law

about Lok Adalats and other similar 'improvised tribunals' that are being served upon as'analgesics to bring comfort to a fatigued' justice delivery system. Excerpts from an

exclusive interview to Abid Shah


LOK ADALATS

The government should refrain fromswitching over to tribunals andshould strengthen the present judi-cial system, by increasing thestrength of the judges and bringingsuch changes, as required withproper discussion with the represen-tatives of the Bar for speedy dispos-al of cases.

The government as well as theHon'ble Supreme Court and HighCourt should refrain from resortingto Alternate Dispute Resolution(ADR) or any other such method,which includes Lok Adalats,Conciliation Centers, Arbitration,before first discussing the overallresults and implications of suchADR's on the judicial system of India.

The SC should be approached andthe government should be called toinitiate discussion with the Bar rep-resentatives on such law or laws,necessary for the speedy disposaland settlement of cases at an earlierstage through negotiation process,to find out the lasting solution as towhich of the methods that is LokAdalats, conciliation, arbitration,mediation or any other, is suitable tothe requirement and need of the lit-igating public of India for settle-ment of the cases.

The Hon'ble Supreme Court andHon'ble High Court be requested toimmediately discuss the matter per-taining to the mediation before thesame is launched.

The government should be calledupon and the Hon'ble Supreme Courtand Hon'ble High Court beapproached to discuss ways andmeans and the alternatives, requiredfor speedy settlement/disposal ofcases.

The government should be calledupon not to involve foreign advo-cates, foreign machinery and foreignfunds for initiating any mode of set-tlement of cases under the guise ofimprovement of the court complex-es, or making alleged congenialatmosphere in the court or for decid-ing the future judicial setup of thecountry for disposal of the casesexpeditiously. It is further resolved

that in case of the mutual agree-ment, which is in the public interest,the same should start with the helpand participation of advocates of thecountry with our own funds.

The Hon'ble Chief Justice and theHon'ble District Judge beapproached to provide all necessaryinformation in their offices and onwebsites regarding the name,standing, and amount of commis-sions given to such advocates fortheir appointment as local commis-sioners, receivers and arbitratorsand further resolved, that Hon'bleChief Justice and Hon'ble DistrictJudge be requested to provide suchinformation on daily basis from theirrespective offices.

The Union government, Delhi gov-ernment, Legal Services, DDA,NDMC, MCD be approached fordirection to their respectivedepartments for providing infor-mation regarding name, standingand amount paid to the paneladvocates alongwith the numberof cases entrusted. It is furtherresolved that these departments beapproached for providing neces-sary information on website abouttheir panel lawyers alongwith theirbio-datas, which includes theirrelationship with the members ofjudiciary or the officers of theoffice concerned.

The government should beapproached for directions to thecompetent authority for allowingonly advocates to practice in taxCourts/tribunals/authorities.

The law ministry and the ministry ofcommerce and be approached toapprise the sentiments of the legalfraternity of the country against theentry of foreign lawyers in India andto further apprise that the committeeconstituted by the ministry of com-merce in this regard do not constitutethe representatives of the Bar and theBar has no faith in such a committee.

The Hon'ble Supreme Court andHon'ble High Court can be approachedto bring an effective mechanism tostop corruption in the judicial systemand also to stop misbehaviour of the

judges with the advocates. An effective selection process for

appointment of judges be broughtto minimise the allegations offavouritism, nepotism to the nearand dear ones of the members ofthe judiciary and it is furtherresolved that, to enhance the imageof judicial system in the eyes ofpublic, the selection process shouldbe more effective and transparent.

The vigilance committee should beformed to keep check on the activi-ties of members, who misconductthemselves and resort to extortingmoney in the name of judiciary. It isfurther resolved that stringentaction should be taken against suchmembers of the Bar.

A strict vigilance should be main-tained on the law firms appointingthe kiths and kins of the judiciaryand the senior bureaucrats, on heftypayments for their vested interestsand the licences of partners of suchfirms should be cancelled.

The advocates should be directed tomention their enrollment number aswell as the year of enrollment on'Vakalatnama, so that the personsengaging them should be aware oftheir standing.

Strict action be taken against all lawfirms and individuals, who are solic-iting work through advertisementsin newspapers and on websites, inIndia and abroad, so that public atlarge may not be misguided by suchillusive advertisements.

No Bar association shall participate inany function related to mediation,conciliation, Lok Adalats and perma-nent Lok Adalats etc. till the govern-ment, Hon'ble Supreme Court andHon'ble High Court finally resolve thematter, after discussions with therepresentatives of all Bar Associationof Delhi and the Bar Council.

The Government as well as Hon'bleSupreme Court and Hon'ble HighCourt be approached for formulatingscheme for the judicial set up ofDelhi to avoid hardships to the liti-gants due to establishment of tri-bunals and quasi-judicial bodies scat-tered at different places in Delhi.

Unanimous decisions The Coordination Committee of Delhi Bar Council and Bar Associations after

deliberations on issues like Lok Adalat, unanimously passed a resolution. Highlights:


LOK ADALATS

Why are our courts crowededwith cases? What are the reasons?

Lack of clear demarcation,administrative deficiencies andinability to set priorities right haveled to this kind of state. All sorts ofcases are put before the same court.There is no demarcation, no categori-sation according to importance ofcases. Petty cases as well as seriousones pile up and are treated alike.Matters that are not intricate shouldnot be allowed to linger in courts.There should be fair distribution ofwork among judges. There should bemechanism to do away with unnec-essary routine production of wit-nesses. In criminal cases doctors,policemen, FIR writers are rituallycalled by the court often just for ver-ifying what they had already said orwrote. The justice system does notinspire to bring out truth and reelsamid suspicion whereby time iswasted in authenticating every littlething howsoever insignificant.

There is an impression and this isquite a creditable one that delays aremainly caused by lawyers who keepon pressing for adjournments on onepretext or the other. Is this not true?

It is not because no adjournmentcan be passed without the approvalof court. Court has to concur, passadjournment and fix a date for pro-ceedings. So there is no question thatlawyers alone are responsible forthis. Often cases are adjournedbecause witnesses, even those whoare government servants, fail to turnup in the court. Often bailable war-rants have to be issued to bring wit-nesses to the court.

Lawyers may not be lone causefor adjournments and delay. Butdon't they have a role in this?

Depends, certain lawyers mayhave a role. In the judicial processclients too know that certain courtsmay be well disposed towards cer-tain lawyers. So for expeditious dis-posal certain lawyers may suit theclient more. In such cases the counselfor the other party may well press foradjournment.

You mean courts may have theirpreference?

When sons and daughters ofsenior and prominent judges are tak-

ing to practice in the same city andpleading cases before brother judgesof their parents, how can you saythat select lawyers do not get prefer-ential treatment from courts?

Is this a recent trend? What hasbeen the usual practice earlier?

As a matter of practice earlier nokith or kin whether son or daughter,or brother or sister of a SupremeCourt or High Court Judge took tolegal practice in courts that fell undertheir (higher court's) jurisdiction orcontrol.

How come this has gone unno-ticed and no concerted effort weremade to set this right?

It has not gone unnoticed. TheDelhi Bar Council passed a resolu-tion two years ago pointing out thisand I do reiterate this with ardenthope that their lordships, the execu-tive and the legislature would take anote of this in order to put fool proofsafeguards in place to ward this off.

You earlier said that poor admin-istration leads to the backlog ofcases. Do you mean that judicialadministration is lax?

I am not against LA as such. AllI mean is that LA cannot be a solu-tion as has been the case for pasttwo decades. LA were introducedand they were not able to make adent on the heap of cases that arepending in various courts. This

besides other things points to thefact that the regular system has tobe strengthened. High Courts haveadministrative control over subor-dinate judiciary of the state. Andtheir lordships have this additionalwork as to decide about and lookafter the functioning of the districtcourts. Often the High Courtjudges are dependent on registrarsfor this whereas better administra-tion could be provided by involv-ing state Bar Councils, BarAssociations, former judges ofHigh Courts and district courts,representative of state and centralgovernments, former bureaucratsand police officials as also retiredpublic prosecutors.

And what should this assortmentof people do?

They should put their headstogether and find ways and means toaddress the problem.

But how can this be done? Do youhave any specific suggestion?

Action is required at many lev-els. Yet, I would say that the bestguarantee for improving the systemis to appoint more and efficientjudges. Efficiency on the judges'part is very important for it not onlyreduces pendency of cases but alsorevisions and appeals. And aboveall this can reinforce faith of the peo-ple in an otherwise fast deteriorat-ing judicial process.


WORDS & IMAGES

It gives me much pleasure tointroduce the book PoliticalViolence and the Police In India by

KS Subramanian. It is not often that one finds a

senior police officer (albeit retired)writing about the army, police andparamilitary forces while, at the sametime, calling a spade a spade. For thisreason, KS Subramanian's bookmakes a remarkable reading. In 250pages, he covers a wide spectrum ofissues on political violence. It is notpossible to refer to all the aspects cov-ered in the book in such short time inwhich I have to speak. It is, therefore,better that I focus on fewer issues thathe has covered so well and which aredear to my heart as well.

Without taking too many libertieswith the writings of the author, thepicture painted by the author is oneof a seemingly democratic state thatis highly militarised and not averseto putting down struggles for humanrights with "exceptional brutality".The growth of the armed police afterIndependence took precedence overcivilian police for beat patrolling andinvestigation of cases. This policeforce was not inclined "to safeguarddemocracy and freedom". This threemillion strong police force is possiblythe largest in the world.

A considerable amount of spaceis devoted, and correctly so, to theCentral Police Forces now standingat one million personnel and whosebudget is one-third that of the min-istry of home affairs, which is Rs 210billion. This is an astonishing figurefor a country where half the popula-tion is malnourished and the centralgovernment and all state govern-ments would loathe increasing thebudget for the midday meal for chil-dren from Re 1 to Rs 2 per day!

The author also covers at consid-erable length the functioning of theIntelligence Bureau (IB). Once usedby the British against the nationalmovement, it still functions in the

same way oblivious of the require-ments of a democratic state. BNMallik and MK Dhar, formerDirectors of the IB, wrote extensivelyon how the IB continues to act onbehalf of the party in power doingall kinds of dirty tricks includingbugging of prominent personsincluding, once at least, the presi-dent of India. Its faulty understand-ing led to the intrusion of the Indianarmy into Nagaland. "The seeds ofhatred sown during that period haveborne the fruits of bitterness,"the author writes.Ironically, while the Britishused only one battalion tomaintain law and order inNagaland, India at presenthas 30 battalions stationed inthe state. Despite the recom-mendations of the ShahCommission that the IB oughtnot to be allowed to be used asan agency of politicians, anddespite LP Singh's lament that the"catch all definition of 'national secu-rity' was used as a cloak to hide amultitude of abuses" the IB contin-ues to remain a servant of the partyin power.

The author has devoted consid-erable attention to the naxalitemovement in the country. He isright when he points out to thesocial causes of unrest. He is alsoright when he criticises the reactionof successive home ministers in set-ting in motion foolhardy venturessuch as the Salwa Judum inChhattisgarh. The CentralGovernment has allocated 2,500crore for 55 Naxal inflicted districtsin the country. However, if thismoney was used for providing freefood, education and health care tothe poor in those districts, therewould hardly be any cause for dis-content that, as the author pointsout, is the root cause of militancy.Sadly, instead of using availableresources prudently and in the pub-

lic interest, the expansion of thepolice force, the purchase ofweaponry and related expenseshave become norm. This caused thePublic Accounts Commission toexpress its concern over the largescale and continued increase inthese "unproductive" expenses.

I cannot help but feel that thesection on communalism has beeninspired by the author's personalexperiences when he participatedin the Concerned Citizen's Tribunal

on Gujarat that documentedthe massacre of Muslims by afanatical majoritarian group.His vivid description of whathe experienced and his con-clusion that the police forcewas communal and partici-pated in this communalcrime lead him to the con-clusion that when thepolice force stands firm no

riot can happen. The author has some other ideas

but I think that will need anotherbook. He correctly suggests that theparamilitary colonial repressivestructure of the police should beremoved and laments that the eightvolumes of the National PoliceCommission have not looked at thisat all. While condemning the newPolice Act as "too little too late" itwill be necessary for the author totake up the arduous challenge ofcoming out with a sequel to thisbook, to develop specific anddetailed suggestions for reform. Hewould need to look at the CivilianOversight Committee in the UK andthe community policing techniquesbeing developed in other countries.He would need to squarely addressthe central issue as to how genuinecivilian control over the police forcecould possibly eradicate violence bythe police and corruption, and makethe police the servants of the people.

Despite his best intentions thereis no sign of reform anywhere.

Militarised democracyA retired IPS officer, who stood out as a consientious cop throughout his career, calls

India as a seemingly democratic State that is highly militarised, using exceptionalbrutality against its own people while still picking up leaves from old colonial hand book.

This and more figure in his new book at whose release Colin Gonsalves spoke aboutthe book and policing in India. Excepts from speech

N Raghuram

This book certainly stands up tothe expectations raised by itstitle. It also confirms common-

ly held suspicions of the criticsregarding globalisa-tion and US imperi-alism through thepolitics of aid and debt. In a grippingnarrative of his own story as an eco-nomic hitman (EHM), interlacedwith the world affairs of his time,John Perkins beautifully describeshow an elite group of men andwomen like him helped build a glob-al empire of the US during the yearshe covered (1970s to 2004). In hisown words, they "utilise internation-al financial organisations to fomentconditions that make other nationssubservient to the corporatocracy" ofthe US. They are highly paid profes-sionals who funnel money from theWorld Bank, the US Agency forInternational Development (USAID)and other international fundingagencies, into the coffers of US cor-porations. The modus operandi issimple. The invisible arm of corpora-tocracy cultivates some smart profes-sionals and plants them in influentialpositions as consultants, experts, etc.,to push international funding agen-cies into providing aid/loans for lofty'development projects' to be executedby US corporations in recipient coun-tries. "In essence, money never leavesthe US; it is simply transferred frombanking offices in Washington to theengineering offices in New York,Houston or San Francisco." Yet, therecipient country must pay it allback, with interest. The defaultingcountries lose their bargaining edgeand become subservient to the USforeign policy and its corporatocracy.

EHM is not a designation but anickname for managers, engineers,economists etc., in private corpora-

tions who serve as the agents of UScorporatocracy. Perkins assures usthat people who play similar rolesare more abundant now, have moreeuphemistic titles, and walk the cor-ridors of every major corporation in

the world.Unlike theauthor, not all

of them are recruited as a part of anorganised conspiracy, nor are all ofthem clearly aware of their role. Thisis what makes the global economicexploitation system a lot more subtle,robust, widespread and dangerous,as the individuals and corporations

who stand to benefit from it gethooked to the ideology. If they fail,then there are the more dangerous'jackals', who use violent underworldmethods to achieve their goals. Ifthey too fail, then the time-testedmilitary methods come in handy tothe war-happy American govern-ment, and the military industry isalways too happy with the growthopportunities opened up by conflictsand wars.

The author describes his own bap-tisation into an EHM

during one of hisfirst jobs as aneconomist atMAIN (Chas T.Main Inc.), a low-profile but hugelysuccessful Boston-based Internationalconsultancy compa-ny that was involvedwith World Bank'sinfrastructure projects

in Ecuador. With only a bachelorsdegree from Boston University"which did not seem to warrant aposition as an economist with such alofty consulting company" he visu-alised himself as a "dashing secretagent heading off to exotic lands,lounging beside hotel swimmingpools, surrounded by gorgeous biki-ni-clad women, martini in hand".Through his descriptions of his manysubsequent assignments, he con-vinces us that there is a lot of truth inthis imagination.

In Indonesia of the 1970s, Perkinsdescribes how the EHMs were usedto make exaggerated projections toserve the US foreign policy and cor-poratocracy - to seduce Indonesiaaway from communism, coupledwith the insatiable American thirstfor oil resources. His bosses made itall very explicit to him, suggestingthat it is "better to err on the higher


WORDS & IMAGES

In a controversial book, John Perkins narrates a real life tale. His personal journey fromthe member of international community of highly paid professionals who are employedto cheat poor countries around the globe to maintain US monopoly. Eventually he callshimself as a former economic hit man and deconstructs international intrigue andcorruption, the sinister mechanics of imperial manipulations and control

Why US is the only 'Superpower'

Confessions of an Economic HIT-MAN: The shocking inside story ofhow America REALLY took over the

world. By John Perkins, Plume Books, 2006

Price: $15.00 (Paperback)

This book is anessential reading foranyone interested in

knowing about the USinfluence in their

country or the world atlarge, not only in

terms of economicsand politics, but muchmore. It is a must for

everyone who believesin the "free market"

ideology

BOOK REVIEW


WORDS & IMAGES

side than to underestimate", and heobliged. Interestingly, he continuedto do such things against his con-science for over three decades, fullyaware of what he was doing, beforehe quit and decided to write it all ashis confessions in this book. Thoughhis meteoric career growth explainswhy he drifted along this path, threedecades is too long a time to suppresssuch strong contradictions, andequally difficult to evoke them againafter such a long period of suppres-sion. Nevertheless, for the purposeof enjoying the book and benefitingfrom its revelations, it is "better latethan never".

The main chapters of the bookrange from controlling Indonesianinfrastructure and oil to controllingPanama Canal, the Saudi Arabianmoney laundering affair, the financ-ing of Osama Bin Laden, the Shah ofShahs and the great Iranian flop-show, the Columbian gateway toLatin America, Ecuador's oil, thealleged CIA assassinations of the

Presidents of Ecuador and Panama,the 'wild West of energy' era, the USinvasion of Panama, the EHM fail-ure in Iraq followed by the Iraq war,the Venezuelan triumph . Throughthese chapters, John Perkins decon-structs the official American view ofthe world with his own personalanecdotes and revelations of eventsand conversations to which he was privy.

In many ways, this book explainshow USA, a country that doesn'thave gold to back its currency, has anannual trade deficit of over 800 bil-lion dollar presently, has debts ofover five trillion dollar from theworld, recklessly spends more than itearns and makes the world economydependent on American consump-tion, manages to rule the world. Indiaitself keeps its foreign currency assetsof over 100 billion dollar in US secu-rities. China has sunk over 600 billiondollar in US securities. Japan's stakesin US securities is in trillions. The UShas invested in China less than half of

what China has invested in US. Thesame is the case with India . We haveinvested in US over 100 billion dollarwhile the US has invested less than20 billion dollar in India. As calculat-ed by some economists, today, tokeep the US consumption-centriceconomy going, other countries haveto remit 180 billion dollar every quar-ter, which is two billion dollar a day,to the US!

This book is an essential readingfor anyone interested in knowingabout the US influence in their coun-try or the world at large, not only interms of economics and politics, butmuch more. It is a must for everyonewho believes in the "free market" ide-ology, and that US epitomises it. Alsoa must for both who strongly supportor oppose liberalisation, privatisationand globalisation.

—The writer is Reader, School ofBiotechnology, GGS Indraprastha

University, Delhi

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Bargaining Lives: A Critique of POSCO Special Economic Zone MoU (co-authored), Combat Law, Vol. 6,...

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