Session #2: Friday, 9 January, 15.45 – 17.30 (CSLG)
Panel coordinator(s): Alex Fischer, Law, SOAS (alexfischer@soas.ac.uk)
Chair/discussant: Lavanya Rajamani, Centre for Policy Research, New Delhi (lrajamani@googlemail.com)
Panelists, paper titles, and abstracts
Assessments of Public Interest Litigation (PIL) in India range from the laudatory to the cynical, but recent scholarship have developed a widely held narrative that runs like this. PIL or “social action litigation,” as some call it, originated in the late 1970s when the judiciary, aiming to recapture popular support after its complicity in the Emergency and taking advantage of the space afforded by new political competition, encouraged litigation concerning the interests of the poor and marginalized. The Supreme Court issued a number of landmark cases in the 1980s and early 1990s, and the frequency of PIL cases in the High Courts increased as claimants and their lawyers learned how to take advantage of the procedural liberties associated with PIL. By the late 1990s, however, claimants and their lawyers had learned to “dress up” private disputes as PIL, and human rights activists were growing disenchanted with courts’ failure to enforce bombastic rulings. Most recently, many have questioned the appropriateness of judicial intervention in the legislative and executive spheres, and a political backlash against PIL is visible.
Despite how often it is repeated, the evidentiary basis for this narrative is weak. Most accounts do not review PIL in a systematic way, perhaps because of the challenge of identifying what counts as a PIL case. This paper will test this narrative using four different samples of PIL cases at the Supreme Court level: (i) all cases from 1988-2008 that the court itself has labelled “PIL” in the text of its opinions (about 200 cases); (ii) and (iii) cases over the same time period that involve Fundamental Rights in areas that the Court has stated may fall under PIL, such as cases involving the protection of women and children and of SC/ST/OBCs (about 90 and 300 cases, respectively); (iii) cases that, according to its internal docket records, the Supreme Court has itself classified as PIL from 1988-2008 (about 3500 cases). Using these data, this paper will be able to answer these questions: a) has the ratio of PIL cases over total cases changed over time? b) has the win-loss ratio of PIL cases changed? c) have PIL claimants become more middle class? d) has the state become less active as a respondent in PIL, and have civil cases come to the fore? e) over time, what has been share of cases from BIMARU states? f) have judicial rulings shown an increasing tendency to encroach on policy formulation? g) has NGO activity in PILs fallen and private representation increased?
At the same time, by superimposing these trends in court activity against the history of politics and social policy in India, this paper addresses key questions in judicial politics: 1) how important, in Epp’s phrase, is the “legal support structure” for PIL? 2) how much does PIL depend on a favorable policy climate? 3) does court activity increase when political blockages or informational problems arise in democratic politics?
This paper attempts to look at the Annamalai Hills, with specific reference to the town of Tiruvannamalai, which is an ancient pilgrim town. The holy hill Arunachala is the centre of ritual and cultic worship, around which is built a temple known to be a thousand years old. Problems of ecology, greening of the mountain, and questions arising from temple tourism (such as escalating garbage and overconstruction) caused the members of several ecologically sensitive bodies such as Sriramanasramam (Maharshi Ramana's abode) to take to court the problems of civic distress. The paper records the litigational process and the various ways in which different contestants use the platform to state the case.
Based on their analysis of socio-political phenomena in colonial India, postcolonial theorists such as Dipesh Chakrabarty and Partha Chatterjee advance persuasive claims both about the complex links between state- and colonial power as well as regarding the unsuitability of a western-inspired secular framework in terms of its capacity adequately to address the religious dimensions of persons’ identity. Taken together, these two claims can pose a normative challenge to the institution of secular law-governed orders. More particularly, they fuel the thesis that the encounter between liberal-democratic secular states and non-hegemonic religious minorities will tend to subject the latter to relations of neo-colonial domination because of which, it is argued, the state will do well to keep out of the affairs of these minorities. In the proposed paper, however, I want to draw attention to the limitations of the above claims of postcolonial theorists, and to bolster the case in favour of institutional arrangements to sustain a law-governed order for addressing intragroup domination by focusing on certain instances when state intervention can actually bolster the agency of vulnerable members of non-hegemonic minorities. I will do this by analyzing judgments of the lower courts in India in the aftermath of the Shah Bano case, in the lead up to the Daniel Latifi judgment that upheld Muslim women’s right to receive substantial compensation to meet their maintenance needs upon divorce. I will also probe the manner in which “religious” and “secular” concerns were negotiated in these court decisions, particularly with a view to considering their implications for the agency of women. The broader point I want to make in this paper is that despite the presence of the not unreal danger of (what I call) “neocolonial governmentality” that can attach to state power, reliance upon the instrumentalities of the state cannot be abjured. Because the state is in a unique position to ensure the maintenance of a law-governed order that can secure the vital interests of persons within its jurisdiction, it offers indispensable instruments to resist intragroup domination and thus remains a relevant actor in processes involving the political accommodation of contested non-liberal religious and cultural practices observed by members of non-hegemonic groups.