background
programme
more info
Session #5: Saturday, 10 January, 14.15 - 16.00 (CSLG)
Panel coordinator(s): Arudra Burra, PhD student, Philosophy, Princeton University (aburra@princeton.edu)
Chair/discussant: Pratap Bhanu Mehta, President, Centre for Policy Research (president_cpr@vsnl.com )
Panel description
Panelists, paper titles, and abstracts
Questions about judicial independence – of the proper relationship between Courts and other political institutions – arise especially sharply at moments of great political and institutional change. In this panel, we examine this role in the period just before and after Independence. Rohit De challenges the assumption that colonial courts should be seen simply as extensions of the colonial state: his paper studies the role of the Federal Court of India in striking down Government Ordinances enacted to suppress the Quit India movement in 1943. Arudra Burra examines the early years of the Supreme Court, and its uneasy relationship with Parliament, in a study of the debates around the Court's interpretation of Fundamental Rights which eventually gave rise to the First Amendment in 1950-51. Rebecca Grapevine's paper examines the Ambedkar's role in the constitution assembly and provisional government and the changing nature of dalit politics. Devika Sethi studies political censorship in 1950s India, and argues that it was one colonial legacy which the newly independent country could not easily shake off. Finally, Hans Dembowski provides a modern case study (of censorship in the Calcutta High Court) to illustrate that government institutions today can share repressive characteristics more typical of a colonial power structure than of a representative democracy.
By the summer of 1942, the Japanese were advancing towards British possessions in India, the Indian nationalist parties had launched a civil disobedience movement which was spiralling out of control and discontent was rising due to famine and severe rationing. The government was quick to retaliate, demonstrators were fired upon and a 100,000 people were arrested. It was to suppress these nationalist activities in face of war, that the government fashioned special legal instruments, such as the Defence of India Act and its various rules which allowed the government to hold people without trial. In a remarkable series of judgments the Federal Court struck down these ordinances in the name of civil liberties. What was remarkable was that the court in question had been set up by the colonial government it had been in existence for only three years and had been staffed with pro-establishment judges. I hope to use judicial response to the Quit India movement as a prism to open up a discussion of law, state and legal culture in colonial India.
Historians have pointed to the repressive nature of colonial law and the double standards applied to challenge British claims of bringing the rule of law to South Asia. The prevailing consensus seems to be that that "law was far from autonomous in practice, its autonomy nothing more than legal fiction and its practice pure farce". Most accounts of law in colonial India have tended to treat courts as a part of the larger apparatus of the state, an analysis which has also been extended to the postcolonial states of India, Pakistan and Bangladesh. This paper examines the Federal Court judgment in 1943, and the response to it by both the colonial state and Indian nationalists to interrogate the new spaces of negotiation and resistance which were being opened up in the late colonial state. Using court documents, government memoranda and judicial biographies, it hopes to excavate the foundations of judicial independence in South Asia.
For most of his career, Dr. Bhim Rao Ambedkar served as an extremely important Dalit-rights activist. From this position, he launched trenchant critiques of the Congress party and its treatment of Dalits. However, surprisingly for someone so vehemently anti-Congress for so long, Ambedkar ended up playing a key role in the writing of the Indian Constitution at the behest of, and in collaboration with, the Congress leadership. This shared approach represented a major change in Ambedkar’s political fortunes—he went from being an “outsider” (in his own words) to the consummate insider, depended upon for legal advice.
In this new position, Ambedkar did not abandon his pre-Constituent Assembly positions entirely. He saw this important position in the Constituent Assembly as allowing him to advocate for important political safeguards for Dalit. In exchange, however, Ambedkar had to temper his positions on two of his most dearly held issues: separate electorates for Dalits and the governmental creation of substantive economic equality for all. Moreover, he also faced private pressure from the Congress leadership to tone down the substance and rhetoric of his public speeches and actions directed at his own Dalit and labour supporters. Leaders like Nehru attempted to impose on Ambedkar what, in the British context, historian Martin Francis has termed a “politics of restraint” deemed suitable for a modern, rational state and economy. As Indian governance and law transitioned from colonial to post-colonial modes, Ambedkar too was forced to balance his Dalit and labour-rights platform and rhetoric against Congress party priorities and his new position as a legal and political insider.
In May 1951 Jawaharlal Nehru introduced before Parliament a Bill to amend the Indian Constitution, some fifteen months after it had come into force. Some of these amendments concerned important “fundamental rights”: the right to freedom of speech (Art. 19(1) (a)); rights against the compulsory acquisition of property (Art. 31); and rights against non-discrimination (Art. 15(1)). Each of these amendments was a response to judgments of the High Courts and the Supreme Court striking down legislation for violating these rights; and each amendment had the effect of nullifying the offending judgments.
My paper traces the history of the Art. 19(1) protection of free speech and expression through three phases: the Constituent Assembly Debates in 1946-49; the constitutional challenges in the Courts in 1950-51; and the Parliamentary debates of May 1951. I suggest that they illustrate the development of a new Constitutional idiom at this transitional time, and I attempt to elucidate that idiom to some extent.
This idiom can only be understood in the context of the peculiar circumstances in which the Bill was proposed. Since elections under the new Constitution did not take place until late 1951, the Parliament was accused of lacking the legitimacy to make sweeping Constitutional changes. But in another respect the legitimacy of this Parliament to discuss the Constitution was not in doubt: under the terms of the India Independence Act of 1947, the Constituent Assembly was to sit in a legislative capacity until the new Constitution came into force. So these constitutional amendments were debated by the very people who had framed the Constitution!
Who, then could speak for the Constitution? Was it the Courts, which were set up by the Constitution and explicitly given the power of judicial review? Or did the Framers, now sitting in their legislative capacity, have greater authority to interpret the Constitution they had written, and correct “errors” in judicial interpretation?
I argue that debates about legitimacy were ultimately cast in terms of the extent to which the institutions in question represented continuities with colonial rule. Was it the Courts, as Nehru suggested, which were still stuck with a conservative “colonial mentality,” manned as they were by judges who had been appointed by the British before Independence? Or was this charge more aptly pressed against the Government, which was seeking to enact the very same laws that the British had earlier used to suppress the Independence movement?
Colonial censorship in India is often seen as a clear-cut confirmation of the authoritarian nature of the colonial state. But what do the censorship practices of the post colonial state tell us about the newly independent nation? How did editors and the newspaper reading public react to censorship imposed by a 'national' government? This paper analyses political censorship in 1950s India and asks questions that clarify the nature of transitional polities, as well as of censorship itself. The continuation of censorship in post colonial India was justified as being essential to the creation of a liberal, secular democracy, and the very first amendment to the Indian constitution qualified the freedom of expression as granted in the constitution. On the basis of contemporary sources, this paper argues that censorship was one colonial legacy that the post colonial state could not shrug off easily, even as its targets and priorities changed. Although state censorship continued to attract criticism, 'national security' as a justification was certainly more palatable than accusation of 'sedition'. 1950s India provides an example of the censored turned censor, and this paper traces the contours of this unusual situation from the perspective of those subject to 'national' censorship.
My book “Taking the State to Court – Public Interest Litigation and the Public Sphere in Metropolitan India” (Oxford University Press) is relevant not only for an academic public. It does, after all, deal with the public interest. Nonetheless, it has hardly been available to public scrutiny and debate. Shortly after the book – an updated version of my doctoral thesis – was launched in early 2001, the Calcutta High Court began hearing a case of contempt against me and the publisher. OUP soon stopped international distribution. The matter has been pending since.
My intention is not – and never was – to scandalise the court in any way. Rather, I believe that an independent and respected judiciary is important and indispensible in any democracy. In no way would I ever try to undermine that crucial authority. Indeed, the assessment expressed in my book of the courts’ role is overwhelmingly positive. For instance, I repeatedly state that they serve the deepening of democracy in India. In social-science terms, my goal was – and is – to contribute to the debate on governance. I believe to have come up with a relevant distinction between the often blurred concepts of public sphere and civil society. In my view, the public sphere emerges once state agencies are included in the ongoing bargaining and debate among various interest groups which form civil society. This notion presents a significant contrast to much academic writing on India, which explains poor governance with inadequate features of civil society or the social fabric in general. India’s immense variety of religions, castes and languages are regularly mentioned in this context. My focus, instead, is on the repressive characteristics of government institutions more typical of a colonial power structure than of representative democracy. In this context, I elaborate on how the courts are playing a vital role in making public institutions more accountable.
Basically, my study does two things: First, it examines how inappropriate urban planning – and governance in general – led to dramatic environmental problems in the megacity of Kolkata (as Calcutta is now called). Second, it analyses to what extent non-governmental organisations can mobilise the local High Court and the Supreme Court of India in order to alleviate hardship. I argue that the judiciary is providing a new space for public discourse, by taking up public interest cases in which civil society organizations blame state agencies for their shortcomings. Judges are introducing a sense of official responsibility in the very literal sense of providing a forum in which leaders of government and bureaucracy can be forced to respond.
Good governance, obviously, depends on reliable systems of law enforcement. Therefore, the judiciary is of crucial relevance – and so is its public reputation. Its credibility and trustworthiness – like those of all state institutions – depend on a sense of transparency and open debate. Both the World Bank and the United Nations Development Programme stress the relevance of civil society and the media in this respect. In my book, however, I pointed out that, in India, the judiciary’s public reputation is challenged, as is reflected, for instance, in corruption claims reported in newspapers. I deeply regret that making such apparently obvious statements triggered the contempt case; but I do believe that the issue deserves public debate. Trust and credibility, after all, arise from free speech and free research. Therefore, I have republished my book in an online-version with support from a German NGO. The entire book is accessible today at www.asienhaus.de/taking-state-to-court.
The relevance of the printed book was recognized in a review published in the Cambridge Law Journal in late 2001: “This book provides interesting insights to the realities of PIL and its dynamics in India and complements the body of legal literature on this subject. The author has produced a readable and enlightening book. Its interest lies in the fact that many of his observations are probably applicable in varying degrees to many other countries of the region faced with similar issues of democratic governance and lack of ‘public sphere’. This book should prove useful to those working on these issues including public interest activists, legal practitioners and researchers.” If it is to do so, of course, it must be available in book shops and libraries. In the long run, academic freedom cannot rely only on cyberspace.