V o .l 1 1 ( 1 )
Socio-Legal Review
ISSN 0973-5216
A PUBLICATION OF THE LAW AND SOCIETY COMMITTEE COMMITTEE
Vol. 11(1)
2015 ARTICLES
Wizards at Making a Virtue of Necessity: Abhayraj Naik Street Vendors Vendors in India
S O C I O -
L
E G A L
R
E V I E W
The Politics of Financial Regulation
Sanaa Ahmed
Gram Panchayats to Gram Nyayalays:
Shishir Bail
The Indian State and Rural Justice Judicial Restraint in an Era of Terrorism: Shylashri Shankar Prevention of Terrorism Cases and Minorities in India
NOTES FROM THE FIELD Finding Subaltern Vo Voices: ices: A Case for
Kriti Sharma Preservation of Colonial Legal Proceedings
BOOK REVIEW Critical International Law: Postrealism, 2 0 1 5
Postcolonialism and Transnationalism
Ashwita Ambast Ambast
SOCIO-LEGAL R EVIEW EVIEW Vol. 11(1)
2015
BOARD OF ADVISORS HILARY CHARLESWORTH
SANKARAN KRISHNA
DIPESH CHAKRABORTHY
NIVEDITA MENON
H. RAJAN SHARMA
SITARAM KAKARALA
SANJOY HAZARIKA
TEJASWINI NIRANJANA
SUDHIR KRISHNASWAMY
FIONA A. KUMARI CHAMPBELL
UPENDRA BAXI
FACULTY ADVISOR DR. SARASU E. THOMAS
BOARD OF EDITORS JAHNAVI SINDHU ANISH MOHANTY
MANNAT SABHIKHI
GAGANJYOT SINGH
NAYANTARA RAVICHANDRAN
PRAGGYA SURANA
SHIVA SANTOSH YELAMANCHILI LINE EDITORS
VANSH GUPTA
ANAND
SUBHANKAR PASALAPUDI TECHNICAL MEMBER PADMANABHAN UNNIKRISHNAN
ADMINISTRATIVE MEMBER AAKARSHI AGARWAL
PUBLISHED BY THE LAW AND SOCIETY COMMITTEE , NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE.
COVER D DESIGN: CYRIL DARLONG DIENGDOH The views and opinions expressed in the Socio-Legal Review are those of the authors and do not necessarily reflect those of the National Law School of India University, the Law and Society Committee or the Editorial Board of the Socio-Legal Review. Mode of Citation: 11(1) SOCIO-LEGAL R EV EV. (2015)
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ABOUT THE JOURNAL Objective of the Journal
The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary journal published biannually by the Law and Society Committee. The Journal aims to be a forum that involves, promotes and engages students and scholars to express and share their ideas and opinions on themes and methodologies relating to the interface of law and society. SLR thus features guest articles by eminent scholars as well as student essays, providing an interface for the two communities to interact. The Journal subscribes to an expansive view on the interpretation of “law and society” thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link. This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/ administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students. The Editorial Board
The journal is edited by a seven member Board of Editors selected from amongst students of the National Law School of India University, Bangalore through a selection test conducted by the Law and Society Committee. Dr. Sarasu E. Thomas, Faculty, the National Law School of India University, is the Faculty Advisor for the Socio-Legal Review. Editorial and Peer Review Policy
All manuscripts have to undergo the peer review process. The practice of peer review is to ensure that work of quality and merit is published. All manuscripts received are evaluated by the Editor-in-Chief and another editor on the Board of Editors. Besides an assessment of whether they fit within the mandate and scope of the journal, the key parameters include content and analysis, originality, structure, style, clarity of expression and grammar. Authors of manuscripts rejected at this stage will be informed within approximately one month after receipt of their manuscript.
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Manuscripts are provisionally selected are forwarded to an expert for peer review. Socio-Legal Review follows a double blind peer review process, where both the referees and author(s) remain anonymous throughout the process. Instructions for Contributors
Manuscripts offered for publication in the Socio-Legal Review can only be submitted by e-mail. Email submissions should be sent preferably in Microsoft Word 2007 format to
[email protected]. The manuscript should be on any theme exploring the interface between law and society. Each volume of the Socio-Legal Review consists of Articles, Notes from the Field and Book Reviews. Additionally, Legislative Comments are also published some years. Notes from the Field consists of shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. This section is designed for the student researchers, legal practitioners, field staffers, and activists who often have the most significant insights to contribute, but the least time to write the longer, scholarly articles. The Socio-Legal Review will not accept manuscripts that have already been published in either printed or electronic form. Contributors should include their name(s), contact address, professional affiliation, acknowledgments and other biographical information in a separate title page, to facilitate the anonymous review process. The offer of a manuscript to the Socio-Legal Review by a contributor will, upon the manuscript being accepted by the board of editors, imply a transfer of the copyright to the Law and Society Committee of the National Law School of India University. The author retains his/her moral rights in the submission. Citations in the Socio-Legal Review conform to The Bluebook: A Uniform System of Citation (19thedn., 2010) and we request submissions to conform to this method of citation.
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EDITORIAL NOTE On an academic level, the realm of socio-legal is cast wide open. Accordingly, The Editorial Board of the Socio-Legal Review accepts exemplary scholarship that demonstrates a perceivable link between law and society. Unfortunately, over time in India due to limited scholarship in the field, the concept has come to be encumbered within traditional confines and notions. Thus, several areas of law and issues are omitted from useful and telling inquiries under the socio-legal lens. The endeavour of the Socio-Legal review this year has been to explore the unconventional manifestations of the socio-legal amidst issues, which, in India, have long been considered far removed from this realm. The growing recognition that even simple private transactions between parties can have deep socio-legal implications and roots can be attributed to the inextricable manner in which transactions, issues and instance have come to be linked with one another, thus adding another dimension to the socio-economic milieu, which the law must accordingly cater and respond to. These issues prompt inquiries that are dynamic enough to factor in issues at both a micro and macro policy level. To best demonstrate this point through this issue, Mr. Abhayraj Naik, In Wizards At Making A Virtue Of Necessity: Street Vendors In India , employs the issue of regulation of street vendors in India to prompt us to slow down and examine how the use of public spaces in India has been reoriented owing to urbanism, consumerism and commodification. In a similar vein, Sanaa Ahmed in The Politics of Financial Regulation, analyses the regulatory measures that have followed the Economic Recession of 2008 from a political lens. She argues that beneath the copious technical jargon, these measures are rooted in exerting a certain amount of political control over the global economy and discusses the possible implications of such control to raise pertinent questions of accountability and legitimacy and the way forward. Ms. Shylashri Shankar in Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases and Minorities in India , evaluates how the Apex Court in India has fared in preserving traditional notions of rule of law, due process and individual liberty in the face of exigencies of the modern state. In particular, she analyses the vii
judicial treatment of minorities in cases involving the interpretation and application of the Prevention of Terrorism Act. Indeed, this piece touches upon rather topical issues in the immediate Indian scenario given the revival of the debate of due process following Yakub Memon’s execution. At the same time, this piece also lends an insight into the importance of empirical analysis in understanding sociolegal issues. Mr. Shishir Bail in Gram Panchayats to Gram Nyayalays: The Indian State and Rural Justice , takes us to the grassroots to explore the recent avenue for access to justice to provided in Indian villages by way of Gram Nyayalayas through the Gram Nyalayas Act, 2009. In this paper, he evaluates whether this new forum of adjudication for rural litigants, in line with other decentralized forums, mirrors indigenous forms of dispute resolution or have devised ways to incorporate modern forms of adjudication to render rural justice. Ms. Kriti Sharma in Finding Subaltern Voices: A Case for preservation of Colonial Legal Proceedings, a practical account in our Notes from the Field Section analyses the state of documentation of legal proceedings from the colonial times across the Bombay, Calcutta and Madras High Courts. In an attempt to reconstruct the narrative of colonized subalterns, she critiques the current state of legal documentation in the country and suggests changes accordingly. Finally, Ms. Ashwita Ambast reviews the recent book released by Oxford University Press on International Law titled Critical International Law: Postrealism, Post-colonialism And Transnationalism (Prabhakar Singh & Benoît Mayer eds., 2014), that as the name suggests analyses the seldom explored aspects of International law which, in the course of their inquiry occasion a socio-legal inquiry. We hope that this issue can critically answer the questions we have posed through it. The publication of this issue has been rendered smooth owing to numerous people. We would like to thank our remarkable peer reviewers who have gone above and beyond what was required of them on very tight deadlines. We are immensely grateful for the time they devote to the reviews, fully aware that they have multiple work and other commitments. Special thanks must also be given to the line editors of this issue- Vansh Gupta and Subhankar Pasalapudiwho painstakingly line edited every word in this issue to even garner the praise of
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every author who has contributed to this journal. Additionally, we would also extend our heartfelt gratitude to the members of the Editorial Board of previous years, in particular years 2010-13, for guiding us throughout and answering every query, big or small at any time of the year. And lastly, to the institutional support we get from law school- Professor Sarasu Thomas, our faculty advisor, for her support and patience. We must also place on record our thanks for enthusiasm of our Vice Chancellor, Dr. Venkata Rao in taking the issues from strength to strength as well as the staff at his office, in particular Ms. D.S. Usha, for helping out with the logistical aspects of publishing. We look forward to our reader’s comments on the issue that can be taken forward by the succeeding and promising Editorial Board of the year 2015-16.
Jahnavi Sindhu & Mannat Sabhikhi, Editor-in-Chief and Deputy Editor-in-Chief, Socio-Legal Review, Bangalore, July 2015.
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SOCIO-LEGAL REVIEW Vol 11(1)
2015
CONTENTS ARTICLES Wizards At Making A Virtue Of Necessity: Street Vendors In India Abhayraj Naik .................................................. .................................................... 1
The Politics of Financial Regulation Sanaa Ahmed ................................................. .................................................... 61 Gram Panchayats to Gram Nyayalays: The Indian State and Rural Justice Shishir Bail ................................................... ...................................................... 83 Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases and Minorities in India Shylashri Shankar ............................................. ............................................... 103
NOTES FROM THE FIELD Finding Subaltern Voices: A Case for Preservation of Colonial Legal Proceedings Kriti Sharma ................................................. ................................................... 125
BOOK R EVIEW Critical International Law: Postrealism, Postcolonialism And Transnationalism Ashwita Ambast .............................................. ................................................ 133
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‘WIZARDS AT MAKING A VIRTUE OF NECESSITY’: STREET VENDORS IN INDIA Abhayraj Naik *
Street vending is ambivalent in India’s imagination of law, space, and self. This essay attempts to excavate street vending in India as an interstice: an enquiry directed towards how street vending is entangled with specific theoretical and ideological positions concerning culture, citizenship, commodification, consumption, globalization, legality, modernity, neoliberalism, poverty, politics, public space, and social movements. The focus of my excavation of interstitial street vending in In di a is tw ofo ld . Fi rst, a me th od olo gi ca l fro nt -s ta gin g of th e interconnections between law, space and time in India. Second, an acknowledgment of the importance of revisionist accounts of Indian modernity; accounts that note emergent politics of urban space and the city while avoiding seductive binary reductionisms of public/private, inside/outside, formal/informal, legal/illegal, planned/unplanned, liberal/socialist, colonial/post-colonial, and modern/obsolete. While this essay focuses on an admittedly eclectic range of themes and categories of analysis, the hope is that the reader is nonetheless left with a sense of what is at stake and what must be considered in ongoing discussions on market reforms, public space, urbanism, informality and urban street vending in India. *
Azim Premji University, Bengaluru, and Environment Support Group, Bengaluru. Earlier versions of this essay were presented at Azim Premji University (Bengaluru) and the International Society of Public Law (ICON-S) 2014 conference on “Rethinking the Boundaries of Public Law and Public Space” in Florence, Italy. An early stage essay, which this full-length essay updates and builds upon, was published on the National Association of Street Vendors of India (NASVI) website, on the Law, Governance and Development Initiative (LGDI) blog in 2013, and was included in part in a 2012 report on street food vending and competition law prepared by the Institute of Social Studies Trust, New Delhi. In particular, I am grateful to Ganesh Trichur, Luigi Russi, Atreyee Majumdar, Uday Khare, Ratna M. Sudarshan, Renana Jhabvala, Bhargavi S. Rao, Leo Saldanha, Anil Sethi, Navdeep Mathur, Sudhir Krishnaswamy, Mukta Naik, Mathew Idiculla, Sonal Sharma, Vishnupad, Sharath Chandra Ram, Rachel Chenchiah, an anonymous reviewer of this journal, and the students of the Human Rights Clinic at Azim Premji University for comments on earlier versions of this essay and for many discussions on this topic. The editors of the Socio-Legal Review displayed truly heroic patience and genuine understanding at all levels of this writing enterprise. I retain responsibility for the views contained here and for any errors that might have inadvertently crept in.
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‘ Wizards at Making a Virtue of Necessity’: Street Vendors in India INTRODUCTION
Street vending is ambivalent in India’s imagination of law, space, and self. The Tamil epic poem Cilappatikâram (estimates of when this was written date back at least 1500 years) includes a detailed description of the vibrant presence of street vendors in Pukâr (the Khaberis of Ptolemy), the then capital of the Chola empire, during the Festival of Indira. 1 More recently, Satyagraha (literally translated as truth-force), the non-violent civil resistance perfected by Mohandas Karamchand (Mahatma) Gandhi, had amongst its earliest practitioners, hundreds of ‘ satyagrahi’ street vendors who peacefully courted arrest in South Africa in response to the discriminatory provisions of the (Transvaal) Asiatic Registration Act, 1907. 2 In 1937, the District Magistrate was advising City Magistrates of Kanpur ‘to adopt ruthless measures’ to prosecute, fine, displace and dispossess offending hawkers, vendors, transport pliers and carters, artisanal workmen who worked at the roadside.3 In independent India, the phenomenon of street vending has been the subject of several decisions of the Supreme Court and of numerous state High Courts, apart from also featuring in a number of national policies, state-level and city-level laws, and municipal regulations. Recently, the Street Vendors (Protection of Livelihood and Regulation of Vending) Act, 2014 – a national law – unambiguously recognised urban street trade as a legitimate but regulated activity across India. This essay attempts to excavate street vending in India as an interstice: an enquiry directed towards how street vending is entangled with specific theoretical and ideological positions concerning culture, citizenship, commodification, consumption, globalization, legality, modernity, neoliberalism, poverty, politics, public space, and social movements. Levesque, in a useful synoptic overview of the relevant conceptual literature, points out that depending on the point of view, interstices can be associated, on the one hand, to absence, interruption and interpolation (Gallet 2002), breaks, dislocations and disjunctions 1
2 3
Canto 5 of R. Parthasarathy’s lovely translation mentions hawkers of paints, scented powders, cool sandalwood paste, flowers, incense, and fragrant perfumes who go round the city streets; pedlars of pastry and appam; women hawking wine; fishermen offering fish; vendors of white salt; sellers of betel … and so on. See THE CILAPPATIKÂRAM: THE TALE OF AN ANKLET (R. Parthasarathy trans., 1993). MOHANDAS KARAMCHAND GANDHI, SATYAGRAHA IN SOUTH AFRICA Ch. 20 (1928). NANDINI GOOPTU, THE POLITICS OF THE URBAN POOR IN EARLY TWENTIETH-CENTURY INDIA 105108 (2001).
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(Foucault 1966; Deleuze 1986; Bhabha 1994), gaps (Lefebvre 1974), leaks and escapes (Handke 1987; Massumi 1992; Tonnelat 1999), ruptures and cuts (Deleuze 1985; Tafuri 1987) or, on the other hand, to tissues – drawing on the connective notion of the anatomical interstitial tissues – links and relations (Bourriaud 1998), interactions (Miller 1939), connections and, by extension, hybridity and the meeting of differences (Remy 1986; Bhabha 1994). 4 My deployment of the term ‘interstice’ in the context of street vending in India relies primarily on a space-time of under-determined, unknown, and evolving normative-material possibilities. The focus of my excavation of interstitial street vending in India is twofold. First, a methodological front-staging of the interconnections between law, space and time in India. 5 This helps in relating 4
5
Luc Levesque, Trajectories of Interstitial Landscapeness: A Conceptual Framework for Territorial Imagination and Action, in URBAN INTERSTICES 24 (Andrea Mubi Brighenti ed., 2013 ); the references made are: BASTIEN GALLET, LE BOUCHER DU PRINCE WEN-HOUEI (2002); MICHEL FOUCAULT, LES MOTSET LES CHOSES (1966); GILLES DELEUZE, FOUCAULT (1986); HOMI K. BHABHA, THE LOCATION OF CULTURE (1994); H ENRI LEFEBVRE, LA PRODUCTION DE L’ESPACE (1974); Peter Handke, Interview with Herbert Gamper in E SPACES INTERMÉDIAIRES (1992); B RIAN MASSUMI, A USER’S GUIDE TO CAPITALISM AND S CHIZOPHRENIA: D EVIATIONS FROM D ELEUZE AND G UATTARI (1992); S TÉPHANE T ONNELAT , Times Square, Superposition, in 85 LES ANNALES DE LA RECHERCHE URBAINE 43 (1999); GILLES DELEUZE, C INÉMA 2: L’ IMAGE -TEMPS (1985); M ANFREDO T AFURI , T HE S PHERE AND THE L ABYRINTH : AVANT -G ARDES AND A RCHITECTURE FROM THE P IRANESI TO THE 70 S (1987); N ICOLAS B OURRIAUD , E STHÉTIQUE RELATIONNELLE (1998); H ENRY M ILLER , T ROPIC OF C APRICORN (1939); J EAN R EMY , La limite et l’interstice: la structuration spatiale comme ressource sociale, in LA T HÉORIE DE L’E SPACE H UMAIN: TRANSFORMATIONS GLOBALES ET S TRUCTURES L OCALES ( Pierre Pellegrino ed., 1986). Further, Brighenti identifies two general points of view on interstices – the structuralist one and the event-oriented or evental view. While the former reg ards the interstice ‘as a leftover space, what remains after a single, central planning process, or between two heterogeneous and discontinuou s plans’, the ‘second perspective adds, to a realistic – and therefore necessary – consideration of power relations, a genealogical point of view that attends all the minute accidents that eventually constitute the specific atmosphere – understood as both ambience and pressure - of a given place. Adding movement to our understanding of the interstice is what shifts us from the first to the second perspective.’ See Andrea Mubi Brighenti, Introduction to URBAN I NTERSTICES, at xviii (Andrea Mubi Brighenti ed., 2013 ). See also, Desmond Manderson, Interstices: New work on legal spaces, 9 Law Text Culture 1 (2005). See generally, IRUS BRAVERMAN ET AL., THE EXPANDING SPACES OF LAW: A TIMELY LEGAL GEOGRAPHY (2014); N ICHOLAS BLOMLEY, PROPERTY, LAW AND SPACE (2014); Manderson , supra note 4 ; HENRI LEFEBVRE, THE PRODUCTION OF SPACE (Donald Nicholson-Smith trans., 1991). Braverman, Blomley, Delaney and Kedar, in their introduction to Expanding Spaces of Law point out that “[l]egal geography is a stream of scholarship that takes interconnections between law and spatiality, and especially their reciprocal construction, as core objects of inquiry … Legal geographers note that nearly every aspect of law is located, takes place, is in motion, or has some spatial frame of reference.”
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‘ Wizards at Making a Virtue of Necessity’: Street Vendors in India
‘social processes in the city to the spatial form which the city assumes.’ 6 Second, an acknowledgment of the importance of revisionist accounts of Indian modernity;7 accounts that note emergent politics of urban space and the city while avoiding seductive binary reductionisms of public/private, inside/outside, formal/informal, legal/illegal, planned/unplanned, liberal/socialist, colonial/postcolonial, and modern/obsolete.8 In this essay, I briefly focus on the law relating to street vending in Indian cities to identify what the ‘right to the city’ discourse, 9 and related notions of spatial justice, 10 might tell us about the unfolding of modernity in contemporary neoliberal India. 6
See DAVID HARVEY, SOCIAL JUSTICE AND THE CITY, 23 (2009). Harvey’s seminal work explores this central, overwhelming, and unchanging concern with social process and spatial fo rm through an exploratory analysis of four fundamental interlocking themes: the nature of theory, the nature of space, the nature of social justice, and the nature of urbanism. 7 For example, Gyan Prakash points out that the urban turn “offers an opportunity to revise the history of Indian modernity, to bring into view spaces o f power and difference suppressed by the historicist discourse of the nation.” See Gyan Prakash, The Urban Turn, in SARAI READER 2002: THE CITIES OF EVERYDAY LIFE 6 (2002). 8 Scholars such as Chatterjee, Kaviraj, Nandy and Chakrabarty, amongst others, have persuasively argued for the importance of carefully studying the shapes, forms, and practices of postcolonial urban politics in India while avoiding the pitfalls of a Western, reductionist, singular, and universalized conceptualization of modernity and its associated political norms for urban sociality. See for example, PARTHA CHATTERJEE, LINEAGES OF POLITICAL SOCIETY: STUDIES IN POSTCOLONIAL DEMOCRACY (2009); Sudipta Kaviraj, Filth and the Public Sphere: Concepts and Practices about Space in Calcutta, 10(1) PUBLIC C ULTURE 83-113 (1997); Ashis Nandy, Introduction: Indian Popular Cinema as the Slum’s Eye View of Politics, in THE SECRET POLITICS OF OUR DESIRES: INNOCENCE, CULPABILITY AND INDIAN POPULAR CINEMA (1998); D IPESH CHAKRABARTY, RETHINKING WORKING -CLASS HISTORY: BENGAL 1890-1940 (1989). 9 See Henri Lefebvre, The Right to the City, in WRITINGS ON CITIES, 147-159 (Eleonore Kofman & Elizabeth Lebas trans. and eds.,1996); D AVID HARVEY, REBEL CITIES – FROM THE RIGHT TO THE CITY TO THE URBAN REVOLUTION (2012); Marianne Morange & Amandine Spire, A Right to the City in the Global South? , M ETROPOLITICS (April 17, 2015), http://www.metropolitiques.eu/A-Right-tothe-City-in-the-Global.html ; L OCATING RIGHT TO THE CITY IN THE GLOBAL SOUTH (Tony Roshan Samara et al eds., 2013); UNESCO, U RBAN POLICIES AND THE RIGHT TO THE CITY IN INDIA – RIGHTS, RESPONSIBILITIES AND CITIZENSHIP ( Marie–Hélène Zérah et al eds., 2011). 10 For conceptual explorations of spatial justice, see HARVEY, supra note 6; A NDREAS PHILIPPOPOULOSMIHALOPOULOS, SPATIAL JUSTICE: BODY, LAWSCAPE, ATMOSPHERE (2014); and the collection of articles in the volumes (2009 – 2015) of ‘justice spatiale | spatial justice’, available at http://www.jssj.org. Edward Soja, for example, reminds us that critical spatial thinking today hinges around three principles: a) the ontological spatiality of being (we are all spatial as well as social and temporal beings); b) the social production of spatiality (space is socially produced and can therefore be socially changed) and; c) the socio-spatial dialectic (the spatial shapes the social as much as the social shapes the spatial). See Edward W. Soja, T HE CITY AND SPATIAL JUSTICE (Sophie Didier and Frédéric Dufaux trans., September 2009), S PATIAL JUSTICE, http://www.jssj.org.
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While this essay focuses on an admittedly eclectic range of themes and categories of analysis, the hope is that the reader is nonetheless left with a sense of what is at stake and what must be considered in ongoing discussions on market reforms, public space, urbanism, informality and urban street vending in India. I do not attempt to provide explicit answers; the endeavour is focused more on raising questions, reviewing and selectively juxtaposing the relevant literature, and on promoting critical thinking on a set of interlinked discursive arenas. OCCUPYING URBAN PUBLIC SPACE
In a rare break from conservatism in urban political expression, the Edinburgh City Council on 24th November, 2011 formally voted to recognise the occupation of St. Andrew Square, in the city’s historic financial quarter, in a motion put forward by Green candidate Maggie Chapman. The city council recognised “the aims of the ‘Occupy’ movements throughout the world and [did] understand that they are an attempt to redirect economic decisions to be more orientated toward the poor and disenfranchised which is a sentiment the Council endorses.” 11 Recent spontaneous peoples’ protest movements in Athens, Bangkok, Barcelona, Berkeley, Cairo, Hong Kong, Istanbul, Madrid, New Delhi, New York, Rio de Janeiro, Wisconsin etc. (and the “Arab Spring” protests across Tunisia, Egypt, Libya, Yemen, Bahrain, Syria, Algeria, Iraq, Jordan, Kuwait, etc.) often began with, or transformed into, protests on, and occupation of, public squares in cities (some reports suggest that the Arab Spring in Tunisia was sparked by the selfimmolation of a street-vendor protesting harassment by governmental officials). 12 The European economic crisis, which over the past few years has seen public protests in streets, parks, universities and parliaments across major European cities, has recently resulted in the partial victory of Spain’s indignados in municipal and regional elections.13 Amongst the unfortunate victims of the 7 th September 2011 11 12 13
EDINBURGH CITY COUNCIL RECOGNISES OCCUPY EDINBURGH, EDINBURGH GUIDE, http://www.edinburghguide.com/news/edinburghcitycouncil/9562edinburghcitycouncil recognisesoccupyedinburgh. See generall y, Preface to HARVEY, supra note 9; Craig Calhoun, Occupy Wall Street in Perspective , 64(1), THE BRITISH JOURNAL OF SOCIOLOGY, 26-38 (2013). Spain’s Indignados Could Rule Barcelona and Madrid after Lo cal Election Success, THE GUARDIAN, http://www.theguardian.com/world/2015/may/25/spains-indignados-ada-colau-electionsmayor- Barcelona.
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‘ Wizards at Making a Virtue of Necessity’: Street Vendors in India
Delhi High Court bomb blast were street vendors demanding judicial protection of their livelihood rights on the streets. Anna Hazare’s anti-corruption crusade in India captured the world’s imagination through public protests in public spaces across India’s cities – all beamed 24x7 to television sets across India and the world. This anti-corruption movement sparked off a series of events culminating in the recent surprise electoral (repeat) victory of the Aam Aadmi Party (AAP) in the New Delhi regional elections in February 2015; the AAP promises participatory budgeting, localised participatory governance, and permanent spaces for street vendors amongst other things. 14 These seemingly disconnected events, on closer examination, reveal themselves to be the anticipatable consequences of a mode of thinking that the eminent economist E.F. Schumacher has described as one of the most fateful errors of our age – the belief that ‘the problem of production’ has been solved.15 Though then largely unnoticed by Western economists, the Indian visionary Mohandas Karamchand Gandhi had stated much the same proposition by pointing out that the question of ‘how much should a person consume?’ could be correctly answered only by appreciating that the world had enough for everybody’s needs but not for anybody’s greed. 16 The centrality of ‘mode of production’ in humanistic Marxist thought highlights a particularly useful ontological and epistemological framework through which revolutionary and counter-revolutionary urbanisms may be usefully analysed, and possibilities of interstitial spatial justice may be glimpsed. 17 In this broad Marxist 14
“The issues of governance and public service delivery in Delhi are complex. We believe they can be addressed only through the idea of Swaraj, which means self-governance, not merely good governance. In real terms it means that people would, and must, have a significant say in policies that affect their lives and not limit themselves to casting their votes once every five years.” See, AAP Manifesto– Delhi Asse mbly Electi ons 2015, A AM A ADMI P ARTY , http:// www.aamaadmiparty.org/AAP-Manifesto-2015.pdf. 15 E. F. SCHUMACHER , SMALL IS BEAUTIFUL: A STUDY OF ECONOMICS AS IF PEOPLE MATTERED 4 (1973). 16 For Gandhi, “[t]he distinguishing characteristic of modern civilization is an indefinite multiplicity of wants,” whereas ancient civilizations were marked by an “imperative restriction upon and a strict regulating of those wants.” See, Choice Before Us, YOUNG INDIA (2 June 1927), in 38 THE COLLECTED WORKS OF MAHATMA GANDHI (ELECTRONIC BOOK ) 483 (1999). 17 "The totality of these relationships of production constitutes the economic structure of society, the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness. The mode of production of material life conditions the general process of social, political and intellectual life. It is not the consciousness of men that determines existence, but their social existence that determines their consciousness … Changes in the economic foundation sooner or later lead to the transformation of the whole immense
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tradition, the path-breaking work on urbanism and spatial justice initiated by Henri Lefebvre and David Harvey usefully contextualises the politics of urban space in today’s contemporary moment. 18 While an elaborate articulation of the intellectual corpus of Lefebvre and Harvey is not possible here, I use below a few brief extracts to convey some of their important views on the nature of the relationship between space, urbanism and capitalist production. Butler points out that for Lefebvre, the dialectical unity of the three dimensions of space – the mental, the physical, and the lived – is crucial to any explanation of space’s production and social use, and that Lefebvre essentially reworks Marx’s chronology of historical stages of social development as a history of modes of production of space. 19 For example, Lefebvre, in the Social Production of Space reminds us that superstructure. In studying such transformations it is always necessary to distinguish between the material transformation of the economic conditions of production, which can be determined with the precision of natural science, and the legal, political, religious, artistic or philosophical – in short, ideological forms in which men become conscious of conflict [in the economic basis] and fight it out”. K ARL MARX, A CONTRIBUTION TO THE CRITIQUE OF POLITICAL ECONOMY (1970), cited from HARVEY, supra note 6, at 197. Marx and Engels explicitly address the relationship between production, urbanism, and justice when they state: “The antagonism between town and country begins with the transition from barbarism to civilization, from tribe to State, from locality to nation, and runs through the whole history of civilization to the present day … The existence of the town implies, at the same time, the necessity of administration, police, taxes, etc.; in short, of the municipality, and thus of politics in general. Here first becomes manifest the division of the population into two great classes, which is directly based on the division of labour and on the instruments of production.” K ARL MARX AND FRIEDRICH ENGELS, THE GERMAN IDEOLOGY (1970), cited from HARVEY, supra note 6, at 204. For a fantastic detailed exposition of Marxist conceptual frameworks to urbanism and the city (from where these excerpts have been borrowed), see David Harvey, Urbanism and the City – An Interpretive Essay, in HARVEY, supra note 6. In Socialism: Utopian and Scientific , Engels sums up the Marxist critique of utopianism in the following manner: “The final causes of all social changes and political revolutions are to be sought, not in men’s brains, not in man’s better insight into eternal truth and justice, but in changes in the modes of production and exchange.” F RIEDRICH E NGELS, S OCIALISM: U TOPIAN AND S CIENTIFIC, (1935) cited from T HE POLITICAL THEORY READER 115 (Paul Schumaker ed., 2010). 18 The third name in the trilogy of Marxist urban studies is that of the Spanish sociologist Manuel Castells. While Castells’ views are not included explicitly in the analysis of this essay, the interested reader is directed towards M ANUEL CASTELLS, THE CITY AND THE GRASSROOTS: A CROSS-CULTURAL THEORY OF URBAN SOCIAL MOVEMENTS (1983). Also, for more on Lefebvre, Harvey and Castells in relation to the urban, see generally, IRA KATZNELSON, MARXISM AND THE CITY (1993). 19 Chris Butler, Reading the production of suburbia in post-war Australia, 9 L AW T EXT C ULTURE (2005). See also, C HRIS B UTLER , H ENRI L EFEBVRE – S PATIAL P OLITICS , E VERYDAY L IFE AND THE R IGHT TO THE C ITY (2012); ANDY M ERRIFIELD , H ENRI L EFEBVRE – A C RITICAL I NTRODUCTION (2006).
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[t]he progression of what might be called a ‘revolution of space’ (subsuming the ‘urban revolution’) cannot be conceived of other than by analogy with the great peasant (agrarian) and industrial revolutions: sudden uprisings followed by a hiatus, by a slow building of pressure, and finally by a renewed revolutionary outburst at a higher level of consciousness and action – an outburst accompanied, too, by great inventiveness and creativity ... The transformation of society presupposes a collective ownership and management of space founded on the permanent participation of the ‘interested parties’, with their multiple, varied and even contradictory interests. It thus also presupposes confrontation … The creation (or production) of a planetwide space as the social foundation of a transformed everyday life open to myriad possibilities – such is the dawn now beginning to break on the far horizon … We are concerned with what might be called a ‘sense’: an organ that perceives, a direction that may be conceived, and a directly lived movement progressing toward the horizon.20 For Lefebvre, the inter-relationships between space, urban consciousness, and capitalist production can be glimpsed clearly by tracking the deliberately induced transition from notions of ‘to inhabit’ (in the Heideggerian sense) to the concept of ‘the habitat’ in the context of the city. Commenting on the developments in France in the late 19 th century, Lefebvre points out that: [t]he Third Republic will insure its fortune, that is, its realization on the ground. It will conceive the notion of habitat . Until then, ‘to inhabit’ meant to take part in social life, a community, village or city. Urban life had, among other qualities, this attribute. It gave the right to inhabit, it allowed townsmen-citizens to inhabit. 21 However, with the transition to the concept of habitat: [s]ociety orients itself ideologically and practically towards other problems than that of production. Little by little social consciousness ceased to refer to production and to focus on everyday life and 20 21
LEFEBVRE, supra note 5, at 419-423. See LEFEBVRE, Industrialization and Urbanization, in WRITINGS ON C ITIES, supra note 9, at 76.
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consumption. With ‘suburbanization’ a process is set into motion which decentres the city. Isolated from the city, the proletariat will end its sense of the oeuvre. Isolated from places of production, available from a sector of habitation for scattered firms, the proletariat will allow its creative capacity to diminish in its conscience. Urban consciousness will vanish.22 In Urbanism and the City – An Interpretive Essay, Harvey, drawing on some of Polanyi’s conceptual framework, proposes that: [c]ities are built forms created out of the mobilization, extraction and geographic concentration of significant quantities of the socially designated surplus product … Urbanism is a patterning of individual activity which, when aggregated, forms a mode of economic and social integration capable of mobilizing, extracting and concentrating significant quantities of the socially designated surplus product … A distinction must be made between an alienated surplus fashioned out of alienated labour and the unalienated form which the surplus can assume in certain societies … Wherever urbanism is manifest, the only legitimate explanation of it lies in an analysis of the processes which create, mobilize, concentrate and manipulate that social surplus product.23 In a classic article published in 1989, Harvey points out that urban governance in advanced capitalistic countries has reoriented and transformed from a ‘managerial’ approach typical of the 1960s (that primarily focused on the local provision of services, facilities and benefits to urban populations) to an ‘entrepreneurial’ approach starting in the 1970s (that typically rests on a public-private partnership focussing on investment and economic development). 24 Noting that ‘[u]rban entrepreneurialism consequently contributes to increasing disparities in wealth 22 23 24
LEFEBVRE, Industrialization and Urbanization, in WRITINGS ON C ITIES, supra note 9, at 77. HARVEY, Urbanism and the City – An Interpretive Essay, in SOCIAL JUSTICE AND THE CITY, supra note 6, at 238-240. See generally, Karl POLANYI, P RIMITIVE, ARCHAIC AND M ODERN E CONOMIES: ESSAYS OF KARL POLANYI (G. Dalton ed., 1968). D AVID HARVEY, From Managerialism to Entrepreneurialism: The Transformation in Urban Governance in Late Capitalism, 71(1) G EOGRAFISKA ANNALER, SERIES B, HUMAN GEOGRAPHY 3-17 (1989).
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and income as well as to the increase in urban impoverishment’, Harvey concludes by reiterating that: a critical perspective on urban entrepreneurialism indicates not only its negative impacts but its potentiality for transformation into a progressive urban corporatism, armed with a keen geopolitical sense of how to build alliances and linkages across space in such a way as to mitigate if not challenge the hegemonic dynamic of capitalist accumulation to dominate the historical geography of social life. 25 More recently, in Rebel Cities , Harvey, paying homage to Lefebvre, reminds us that “the question of what kind of city we want cannot be divorced from the question of what kind of people we want to be, what kinds of social relations we seek, what relations to nature we cherish, what style of life we desire, what aesthetic values we hold” and that the right to the city is ... far more than a right of individual or group access to the resources that the city embodies: it is a right to change and reinvent the city more after our heart’s desire … The freedom to make and remake ourselves and our cities is … one of the most precious yet most neglected of our human rights. 26 Finally, and most recently, in Seventeen Contradictions and the End of Capitalism , Harvey, drawing on Franz Fanon’s revolutionary humanism, reminds us that “what Marx makes so clear in Capital is the daily violence constituted in the domination of capital over labour in the marketplace and in the act of production as well as on the terrain of daily life” and ... the violent and unpredictable eruptions that are occurring all around the world on an episodic basis (from Turkey and Egypt to Brazil and 25 Id., at 12, 16. 26 HARVEY, supra note 9, at 4. Harvey’s words evoke urban sociologist Robert Park’s description of a city as “man’s most imposing creation, the most prodigious of human artifacts … as the workshops of civilized man.” See, R.E. PARK ET AL, THE CITY 133 (1925).
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Sweden in 2013 alone) look more and more like the prior tremors for a coming earthquake that will make the post-colonial revolutionary struggles of the 1960s look like child’s play. If there is an end to capital, then this is surely from where it will come and its immediate consequences are unlikely to prove happy for anyone. 27 It is evident that our cities have become ‘strategically crucial arenas in which neoliberal forms of creative destruction have been unfolding’ and where myriad, often interstitial counter-responses have been recently surfacing. A careful analysis of ‘the urbanisation of neoliberalism’ and of the link between neoliberalisation, urban policy and injustice in the [Indian] city is urgently required. 28 As Peck, Theodore, and Brenner perceptively point out, the ...institutional landscape of neoliberal urbanism is consequently a churning, dynamic one, the continued turbulence of which is reflective of neoliberalism’s contradictory creativity – its capacity to repeatedly respond to endemic failures of policy design and implementation through a range of crisis-displacing strategies, fast-policy adjustments, and experimental reforms … One of the keys to the transcendence of neoliberalism is, therefore, the construction of new forms of urban solidarism, between as well as within cities. 29 Identifying a systematic transformation in the pattern of land ownership i n cities which has serious implications for equity, democracy and rights, Saskia Sassen points out that the 27 28
DAVID HARVEY, SEVENTEEN CONTRADICTIONS AND THE END OF CAPITALISM 166-167 (2014). See , Marianne Morange and Sylvie Fol, City, Neoliberalisation and Justice , SPATIAL JUSTICE, (June 6, 2014), http://www.jssj.org and sources cited therein. See also, Neil Brenner and Nick Theodore, Cities and the Geographies of ‘Actually Existing Neoliberalism’ , 34(3), A NTIPODE 349-379 (2002); SPACES OF NEOLIBERALISM – U RBAN RESTRUCTURING IN NORTH AMERICA AND WESTERN EUROPE (Neil Brenner and Nick Theodore eds., 2002); C ONTESTING NEOLIBERALISM: URBAN FRONTIERS (Helga Leitner et al eds., 2007). See also, Janaki Nair, Is there an ‘Indian’ Urbanism, in ECOLOGIES OF URBANISM IN INDIA: METROPOLITAN CIVILITY AND SUSTAINABILITY (Anne M. Rademacher and K. Sivaramakrishnan eds., 2013); W ORLDING C ITIES: A SIAN E XPERIMENTS AND THE A RT OF BEING GLOBAL (Ananya Roy and Aihwa Ong eds., 2011); I NSIDE THE TRANSFORMING URBAN ASIA: PROCESSES, POLICIES AND PUBLIC ACTIONS (Darshini Mahadevia ed., 2008); T HE URBAN POOR IN GLOBALISING INDIA: DISPOSSESSION AND MARGINALISATION (Lalit Batra ed., 2007). 29 Jamie Peck et al, Neoliberal Urbanism: Models, Moments, Mutations, 29 SAIS R EVIEW 49, 64-65 (2009).
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... trend is to move from small properties embedded in city areas, crisscrossed by streets and small public squares, to projects that absorb much of this tissue of public space … These cities, whether in the global North or South, have become a strategic frontier zone for global corporate capital … This emergent frontier-space at the heart of major global cities arises in a context of increasingly hardwired “borderings” inside cities and across cities. 30 For Sasken, under these interstitial conditions, “the work of making the public and the political in urban space becomes even more critical … These are new hybrid bases from which to act, spaces where the powerless can make history even when they are not empowered.” 31 Occupying urban public space goes to the heart of spatial justice insofar as it raises the ‘cry and the demand’ of the ‘right to the city’ and ‘a transformed and renewed right to urban life’. 32 Ashis Nandy reminds us that the predicament of the imagined city in postcolonial South Asia is direr: [t]his dream of the city usually comes with a cultivated forgetfulness about the violent record of the last hundred years, a record which shows the complicity of the secular city of citizenship, civility, and civic virtues with a particularly ruthless form of self-indulgent, unrestrained, asocial individualism … The imagined city in South Asia symbolizes the belated attempts of defeated civilizations to break into the hard ‘realism’ of the world of winners where, to stretch the metaphor of Ivan Illich, specialist skills in hydrology and water 30 Saskia Sassen, Who Owns the City, in GOVERNING U RBAN FUTURES 6 – 8 (Ricky Burdett et al. eds., 2014). For a detailed analysis of a similar thrust in land ownership in Bangalore, India with and through state-promoted digitization of land records, see Solomon Benjamin, Inclusive or Contested: Conceptualising a Globalised Bangalore, in INSIDE THE T RANSFORMING U RBAN A SIA: P ROCESSES, POLICIES AND PUBLIC ACTIONS, supra note 28, at 170-193. 31 Sassen , supra note 30, at 8. 32 Lefebvre, Right to the City, in WRITINGS ON CITIES, supra note 9, at 158. See also, Tayyab Mahmud, “Surplus Humanity” and the Margins of Legality: Slums, Slumdogs, and Accumulation by Dispossession, 14 C HAP. L. R EV. 1-73 (2010-2011); A NDY MERRIFIELD, T HE P OLITICS OF THE ENCOUNTER – U RBAN THEORY AND PROTEST UNDER PLANETARY URBANIZATION (2013).
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management transform the waters of dream into a scarce commodity called H2O.33 Similarly, Sudipta Kaviraj’s analysis of the four stages of evolution of ‘public/ pablik parks’ in Calcutta from colonial to present times (focusing on Deshapriya Park in south Calcutta) demonstrates how the life of parks, squares, streets, etc. in postcolonial cities of India has much more to tell us than the simple binaries of public/private, inside/outside or planned/unplanned would indicate as forthcoming.34 The late Charles Correa’s reminder that we “must improve fundamentally the governance of our cities – for in the final analysis, they will decide the future of this nation” is worth paying heed to. 35 Writing somewhat optimistically for this very journal ten years ago, Shail Mayaram notes the possibilities of interstitial spatial justice for the subaltern/marginal slum dweller, migrant worker, street vendor, rickshaw puller etc. in the Indian megacity when she points out that: [m]egapolises are universes of a certain Dostoyevskian darkness in which alcoholism is rampant, as also domestic violence. But there are also flashes of joyfulness, of life … A subaltern cosmopolitanism emerges then if only in occasional flashes and in unnoticed and ‘surreptitious creativities’ … if this century is going to be an Asian century it is going to be built with the hands and the labour of this 33
ASHIS NANDY, AN AMBIGUOUS JOURNEY TO THE CITY – THE VILLAGE AND OTHER ODD RUINS OF SELF IN THE INDIAN IMAGINATION (2001). For attempts to map the urban postcolonial consciousness of cities in India, see THE OXFORD ANTHOLOGY OF THE MODERN INDIAN CITY (Vinay Lal ed., 2013); SARAI READER 2002: THE CITIES OF EVERYDAY LIFE, supra note 7; ECOLOGIES OF URBANISM IN INDIA: METROPOLITAN CIVILITY AND SUSTAINABILITY, supra note 28; R ASHMI VARMA, THE POSTCOLONIAL CITY AND ITS SUBJECTS: LONDON, N AIROBI, BOMBAY (2012); W ORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAl, supranote 28. See generally, DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE: POSTCOLONIAL THOUGHT AND HISTORICAL DIFFERENCE (2000); GAYATRI CHAKRABORTY SPIVAK, A CRITIQUE OF POSTCOLONIAL REASON: TOWARD A HISTORY OF THE VANISHING PRESENT (1999). 34 Kaviraj, supra note 8. 35 See , Charles Correa, Accountability and Governance , in GOVERNING URBAN FUTURES 41 (Ricky Burdett et al eds., 2014). See also, Arvind Panagariya, Spaces, Services and the State 39-40 ; Isher Judge Ahluwalia, Building Capacity 40-41; D. Asher Ghertner, Uncertain State(s) 46-47, all in GOVERNING URBAN FUTURES (Ricky Burdett et al eds., 2014).See also, Darshini Mahadevia, Urban Poverty in India and Post-MDG Framework, in OXFAM INDIA WORKING PAPER SERIES (2013). See generally, Urbanization, CENTRE FOR POLICY RESEARCH, http://www.cprindia.org/urban.
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presence that cities regard as unaesthetic and prefer to relegate to their margins, this unauthorized migration that veers on the border of legality and illegality … But this is, in fact, the vital city. A city that is vital to the life of the city; burdened by despair and hopelessness but despite this the sites also of veer and vitality. 36 Ananya Roy concludes her theorization of postcolonial urbanization with a similarly optimistic acknowledgment of the interstitial, of the current ‘moment of interruption that makes possible an imagining of multiple Asian futures.’ 37 Partha Chatterjee is somewhat less optimistic, worrying about the capacity of unselfconscious local practice to beat back the formidable challenges posed by the material as well as the imaginative forces of the new regime of globality. In Are Indian Cities becoming Bourgeois at Last? he captures the conundrum with characteristic clarity: “If democracy has indeed taken root in India’s cities, will political society provide the instruments for negotiating a controlled transition to a new urban regime, or will it explode into anarchic resistance?” 38 Lalit Batra’s careful evaluation of urban policy and urban reforms in neoliberal India suggests that David Harvey’s ‘accumulation by dispossession’ – “privatization of public assets, enclosure and privatization of urban commons including land, monetization of not yet formally monetized realms of existence” – is the order of the day for India and its cities.39 Postcolonial geographies, as Jane Jacobs reminds us, “have replaced the security of the maps of the past with the uncertainty of touring the unsettled spatialities of power and identity in the present.” 40 As Marshall Berman and Mike Davis 36 Shail Mayaram, Of Marginality: Poverty, Migration and Memory in the Megacity, 1 SOCIO-LEGAL REV. 1, 9-10 (2005). 37 Ananya Roy, Conclusion to WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL, supra note 28, at 332. 38 Partha Chatterjee, Are Indian Cities Becoming Bourgeois At Last?, in THE POLITICS OF THE GOVERNED 145 (2004). See generally, ANDY MERRIFIELD, THE NEW URBAN QUESTION (2014); Solly Benjamin, Occupancy Urbanism: Radicalizing Politics and Economy beyo nd Policy and Programs, 32(3) I NTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 719-729 (2008). 39 Lalit Batra, A Review of Urbanisation and Urban Policy in Post-Independent India, CENTRE FOR THE STUDY OF LAW AND GOVERNANCE, WORKING PAPER NO. CSLG/WP/12 (2009). On this point, see also Mahmud, supra note 32; Usha Ramanathan, Illegality and the Urban Poor , 41 E CONOMIC & P OLITICAL WEEKLY 3193-3197 (2006). 40 JANE M. JACOBS, EDGE OF EMPIRE – POSTCOLONIALISM AND THE CITY 163 (2002).
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persuasively remind us, the politicisation of the streets has been and will be a key component of our ‘experience of modernity’ and for ‘excavating the future’. 41 Street vending – a phenomenon as ancient as urban settlement itself – represents in many ways the modest (and less belligerently confrontational, less irruptive) forerunner to the ‘occupy’ movements that grip our cities today: ‘[v]ending can be seen as a private taking of public space.’ 42 As India ushers in an era of foreign investment in retail trade, a critical examination of the context of street vending in India enables an appreciation of other theoretical issues concerning culture, citizenship, commodification, consumption, public space, social movements, and constitutional fairness.43 THE STREET
Streets, markets, highways, parks, lakes, public libraries, and other urban common property resources are highly contested spaces for various end uses within particular time-frames. A city’s urban plan, built form, collective and individual moral outlook, laws, and norms effectively prioritise some claims while de-legitimating others through complex clusters of adjudication mechanisms and legal iteration/ regulation. Streets affect culture and are affected by cultures. They constitute modernities and are constituted by modernities. Richard Sennett’s work persuasively describes how the changing design of our cities (from heterogeneous and disorderly to homogeneous and ordered; from public, democratic and generative spaces to privatised, orchestrated and dead spaces) affects our public 41
See, MARSHALL BERMAN, ALL THAT IS SOLID MELTS INTO AIR: THE EXPERIENCE OF MODERNITY (1988); MIKE DAVIS, CITY OF QUARTZ: EXCAVATING THE FUTURE IN LOS ANGELES (1990). 42 See, Call for Papers – Contesting the Streets II: Vending and Public Spaces in Global Cities, UNIVERSITY OF SOUTHERN CALIFORNIA, (October 2-3, 2015), http://slab.today/2015/02/call-forpapers-symposium-october-2-3-2015. 43 “[S]treet vending as a lens through which to explore several theoretical issues: 1) the ways in which culture-power-difference are mutually shaped and reconfigured in the public sphere; 2) how shifting from political-economy analyses to cultural politics analysis within the context of governance yields insights into activism and emerging conceptualizations of public space and citizenship; 3) the questioning of commodified cultural identities that go beyond simple touristic consumption practices; and 4) a clearer understanding how street vendors participate in social movements that are part of larger transnational political and economic forces.” See, Street Economies, Politics, and Social Movements in the Urban Global South, ADVANCED SEMINAR , (March 13–17, 2011), http://sarweb.org/?advanced_seminar_street_economies.
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culture and collective urban life. 44 Levy points out that while “topography sets the stage, dictates of law and cultural influences work together in creating the form of a city … The experience of a place is dictated by the design of both streets and buildings”.45 Spiro Kostos points out that “[a]ccording to Fascist theory, straight and wide avenues were indispensable. You could not reconcile tortuous, narrow streets with active traffic and sufficient light and air … The state responded to a principle of public morality of which the state was the interpreter.”46 Anne Vernez Mouldon asserts that streets record and determine the history of city form more than any other element of urban infrastructure, and it is evident that streets and their particular social, political, cultural and economic settings can tell us a lot about the dominant ideas, practices, and life-worlds at a particular time and place. 47 Arjun Appadurai concurs, when he highlights the culture of streets in India: “With the possible exception of the railroad, streets capture more about India than any other setting. On its streets, India eats, works, sleeps, moves, celebrates and worships. The street is a stage that rarely sleeps.” 48
44
45 46 47
48
See, RICHARD S ENNETT, F LESH AND S TONE: T HE B ODY AND THE C ITY IN W ESTERN C IVILIZATION (1994); RICHARD SENNETT, THE CONSCIENCE OF THE EYE: THE DESIGN AND SOCIAL LIFE OF CITIES (1991); RICHARD S ENNETT, T HE F ALL OF P UBLIC M AN (1977); R ICHARD S ENNETT, T HE U SES OF DISORDER: PERSONAL IDENTITY AND CITY LIFE (1970). See, Richard M. Levy, The Visualisation of the Street – Computer Modelling and Urban Design, in IMAGES OF THE STREET – PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, 58, 59 (Nicholas Fyfe ed., 1998). See also, KEVIN LYNCH, GOOD CITY FORM (1984). Spiro Kostof, THE THIRD ROME: 1870-1950: T RAFFIC AND GLORY (1973), as cited in David Atkinson, Totalitarianism and the Street in Fascist Rome , in IMAGES OF THE S TREET – P LANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 12, 20. See , PUBLIC STREETS FOR PUBLIC USE, 13 (Anne Vernez Moudon ed., 1987). On streets and cities, see generally, KEVIN LYNCH, THE IMAGE OF THE CITY (1960); J ANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES (1961); BERNARD RUDOFSKY, STREETS FOR PEOPLE: A PRIMER FOR AMERICANS (1969); O N STREETS (Stanford Anderson ed., 1978); D ONALD APPLEYARD, LIVABLE STREETS (1981); PETER JUKES, A SHOUT IN THE STREET – AN EXCURSION INTO THE MODERN CITY (1990); S TREETS: CRITICAL PERSPECTIVES ON P UBLIC SPACE (Zeynep Çelik, Diane Favro, & Richard Ingersoll eds., 1994); I MAGES OF THE STREET – PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE supra note 45; MITCHELL DUNEIER, SIDEWALK (1999); M ICHAEL SOUTHWORTH & ERAN BEN-JOSEPH, STREETS AND THE SHAPING OF TOWNS AND CITIES (2003); A NASTASIA LOUKAITOU -SIDERIS & RENIA EHRENFEUCHT, SIDEWALKS – CONFLICT AND NEGOTIATION OVER PUBLIC SPACE (2010); VIKAS MEHTA, THE STREET: A QUINTESSENTIAL SOCIAL PUBLIC SPACE (2013); S HARON ZUKIN, PHILIP KASINITZ & XIANGMING CHEN, GLOBAL CITIES, LOCAL STREETS: EVERYDAY DIVERSITY FROM NEW YORK TO SHANGHAI (2015). Arjun Appadurai, Street Culture , 8(1) T HE INDIA MAGAZINE 12, 12 (1987).
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While Roland Barthes reminds us of the eroticism of the city insofar as it is the place of our meeting with the other, 49 David Crouch elaborates that: streets are themselves sites of cultural practice, and part of our knowledge of the city because they link sites of activity, of cultural practice, make escape possible and are a step to somewhere else, and someone else. They connect all sorts of sites of everyday cultural life, both spectacular and humble. People meet in the street, and they can avoid engagement in the street. 50 The linkages between social processes and the spatial form of the street have been explored with exceptional brilliance in the writings of Jane Jacobs, 51 Michel de Certeau,52 Le Corbusier, 53 and Walter Benjamin. 54 A short but insightful essay by the late Heinz Paetzold usefully indicates how Jacobs (through reclaiming the sidewalks along the streets for urban culture and through urging for mixed uses of urban areas), de Certeau (through a conceptualisation of walking in the city as a post-functionalist signification of the streets), and Benjamin (whose flânerie , similar to de Certeau’s walking/strolling, destabilizes the functionalist and structuralist discourse of the street and the city) each in their own unique way, provide critiques of the functionalist urban design championed by Le Corbusier, which amongst other things, conceived of streets primarily as ‘machines for traffic’ and openly applauded the Haussmannisation of everywhere. 55 Joesph D. Lewandowski argues that Benjamin’s dialectical urbanism is unique given that it illuminates “how the modern city can be both an administratively 49 Roland Barthes, Semiology and the Urban, in RETHINKING ARCHITECTURE: A R EADER IN CULTURAL THEORY 166-172 (Neil Leach ed., 1997). 50 David Crouch, The Street in the Making of Popular Geographical Knowledge , in IMAGES OF THE STREET – PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 158. 51 See , JACOBS, supra note 47. 52 See , MICHEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans. 1984). 53 Le Corbusier, New York is Not a Completed City, reprinted in METROPOLIS: CENTRE AND SYMBOL OF OUR T IMES 98-110 (Philip Kasinitz ed., 1995); L E C ORBUSIER, T HE R ADIANT C ITY (Pamela Knight, Eleanor Levieux, & Derek Coltman trans., 1967); L E CORBUSIER, THE ATHENS CHARTER (Anthony Eardley trans., 1973). 54 See , Walter Benjamin, Paris: Capital of the Nineteenth Century,reprinted inMETROPOLIS: CENTRE AND SYMBOL OF OUR TIMES 46-57 (Philip Kasinitz ed., 1995); W ALTER BENJAMIN, T HE A RCADES PROJECT, (Howard Eileen and Kevin McLaughlin trans., 1999). 55 Heinz Paetzold, The Aesthetics of City Strolling , 11 CONTEMPORARY AESTHETICS (2013), http:// www.contempaesthetics.org/newvolume/pages/article.php?articleID=666. See also, JAMES HOLSTON, THE MODERNIST CITY: AN ANTHROPOLOGICAL CRITIQUE OF BRASILIA (1989).
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structured ‘objective’ site or force-field of planned relations and a reflexively structured ‘subjective’ space of collective dwelling, improvising, appropriating, dreaming, innovating, struggling and transforming.” 56 Benjamin, for example, quotes Adolf Stahr and points out the Parisians’ technique of inhabiting their streets: “Returning by the Rue Saint-Honore, we met with an eloquent example of that Parisian street industry which can make use of anything. Men were at work repairing the pavement and laying pipeline, and, as a result in the middle of the street there was an area which was blocked off but which was embanked and covered with stones. On this spot street vendors had immediately installed themselves, and five or six were selling writing implements and notebooks, cutlery, lampshades, garters, embroidered collars, and all sorts of trinkets. Even a dealer in second-hand goods had opened a branch office here and was displaying on the stones his bric-a-brac of old cups, plates, glasses, and so forth, so that business was profiting, instead of suffering, from the brief disturbance. They are simply wizards at making a virtue of necessity .” Seventy years later, I had the same experience at the corner of the Boulevard Saint-Germain and the Boulevard Raspail. Parisians make the street an interior. 57 56
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Lewandowski points out that insofar as Benjamin’s dialectical urbanism suggests that the modern city is also the site of the emergence of new and innovative forms of social/city life that have the potential to transform their own structural context, it differs from the dominant quasifunctionalist German sociological discussions of urbanism and urbanisation (for example, the work of Friedrich Engels and Georg Simmels explain urbanism as the liquidation of collective ways of life under the imperatives of industrial capitalism) and the more recent analytic conceptions of the agent as a free-floating, empirically disembedded actor whose rational discourse transcends the location in which it is situated (for example, the work of Jurgen Habermas stresses on context-transcendent norms of validity claims). See, Joseph D. Lewandowski, Street culture – the dialectic of urbanism in Walter Benjamin’s Passagen-werk, 31(3) P HILOSOPHY AND SOCIAL CRITICISM 293-308 (2005). WALTER BENJAMIN, THE ARCADES PROJECT, 421 (Howard Eileen and Kevin McLaughlin trans., 1999). The original source referenced by Benjamin is Adolf Stahr, 1 N ACH FÜNF J AHREN : PARISER STUDIEN AUS DEM J AHRE 1855 (1857). The quoted extract highlights ho w entrepreneurial vision, confidence in improvisational abilities, and the mobile nature of some street vendors created a profitable economic opportunity that the city administrators of Paris had probably not anticipated in their cadastral mapping of the city and their planning of its boulevards, public parks, shopping areas, etc. It also suggests that despite careful spatial planning, context-specific enterprise and necessity will often determine what happens at a particular time in a particular street within a
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( emphasis supplied ) Ravi Kalia has pointed out how Corbusier’s vision directly propelled an ambitious Indian “socio-urban experiment that included, along with an innovative master plan, modernist buildings, new landuse patterns, provisions for education, recreation, medical and social services, the careful and deliberate inclusion of ideas that had their origin in a culture far removed from her own.” 58 While this ambitious experiment continues today in every major Indian city, urban interstices on streets in India offer alternative imaginaries. The collection of essays published in Seminar magazine in August 2012 as “Streetscapes: a Symposium on the Future of the Street” brings to light numerous developmental contexts (transport, infrastructure development, street vending, waste management, eviction, urban public art, etc.), and contested urban meanings (city beautification, urban improvement, master planning, good street design, street culture, etc.) that any serious discussion of the street in India must be attentive to. Posing the problem of the future of the street, Curt Gambetta and Ritajyoti Bandyopadhyay note that current popular and critical imagination is coloured by a sense of the impending obsolescence of the street as a conduit of social life. The visible effects of recent (neoliberal) urban transformation seem to confirm this, where [i]nfrastructure bends to accept an exploding population of single occupancy vehicles: flyovers and thoroughfares provide ground for unceasing circulation, insulating the movement of vehicles from the discontinuous ebb and flow of street congestion. Retail and leisure are drawn in from the street and subject to new forms of ownership,
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modern city. Finally, the above extract suggests that some urban practices are recurrent despite technological, administrative and culture changes. The complex relationship between structure and agency in a modern city - between the arcades (passages) and the dreams/dispositions/ embedded practices of agents who ‘interiorize’ the arcades of Paris – is prominently highlighted throughout Benjamin’s The Arcades Project . The dialectic of spatial domination (through administrative planning) and collaborative improvisational ‘interiorization’ of urban spaces (through practices such as dwelling, suffering, improvising, etc.) is what, in Benjamin’s account, results in the emergence of a situated, empirico-structurally embedded, collective street life. These evocative elements of street vending are explicated in greater detail further on in this essay. See, Nehru, Le Corbusier and the Mapping of Modern (or Urban) India, (6th August 2014), http:/ /www.nehrumemorial.nic.in/en/news/320-nehru-le-corbusier-and-the-mapping-of-modern-orurban-india-6th-august-2014.html.See also, RAVI KALIA, CHANDIGARH: THE MAKING OF AN INDIAN CITY (1999).
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locating the social life of economic transaction inside closed interior shops and malls, while street hawkers are organized into highly regulated vending zones….GIS, CCTV and other technologies of mapping and surveillance significantly reshape how the space of the street is inhabited, regulated and contested. 59 Arguing that street life is anything but a vestige of the past, Gambetta and Bandyopadhyay propose a debate about how the physical and social landscape of the street has been transformed in response to new forms of urban management and control … allowing us to speculate on the present and future of public space in India … We propose a particular attention to everyday enactments and translations of policies and governance within the space of the street, as well as an appraisal of different ways in which the social and cultural life of the street is transforming. 60 In an essay titled Is there a culture of the Indian street? , Jonathan Shapiro Anjaria reviews and categorises the writing on the Indian street into three discrete categories: [t]he first sees the street as a space of difference. These are writings by non-Indians and Indians alike that – whether as emblematic of the ‘exotic Orient’ (Kidambi 2007: 35), ‘premature’ (Bose 1965), or underdeveloped – see streets ‘seething with miscellaneous humanity’ (Low 1907: 23), as deviations from modern ideals. The second group sees streets and urban space as manifestations of power, arenas on which forces of global capital and ideologies of neo-liberalism unfold (Rajagopal 2001, Whitehead and More 2007 and Arabindoo 2010). And finally the third perspective, what might be called a ‘culturalist’ 59
Curt Gambetta & Ritajyoti Bandyopadhyay, The Problem, in STREETSCAPES: A S YMPOSIUM ON THE FUTURE OF THE STREET, 636 S EMINAR (August 2012), http://www.india-seminar.com/2012/ 636/636_the_problem.htm. 60 Id.
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approach, frames Indian streetscapes in terms of their unique rhythms and logic of practice (Appadurai 1987, Ahuja 1997, Edensor 1998 and Mehta 2009). 61 While concluding with how fantasies of other cities haunt everyday life in the streets of Mumbai or New Delhi, Anjaria’s answer to the question posed in the title of his essay suggests (following Kaviraj’s position on public space in India) that the culture of the Indian street lies in its relationship to the project of modernity, “a contested terrain that consists of conflicts over how streets can be used …, efforts to discipline the public … and infrastructural interventions (such as skywalks and pedestrian fences) that ebb and flow, that remake streets as much as streets remake them.” 62 Anjaria’s inspiration for the title – Tim Edensor’s fascinating essay ‘The Culture of the Indian Street’ – suggests that on the Indian street “the imaginative, improvisational predilections of the pedestrian are stimulated into unexpected flights of fancy, and the passage through the street is rhizomic rather than linear”, which supports his general argument that the heterotopic, flânerie -accommodating, and sensual-tactical Indian street “can dissolve hegemonic preconceptions and disrupt notions of smooth passage, unhindered gazing, detached self-containment, convenience and antiseptic sterility so entrenched in Western regimes of urban spatialisation.” 63 The manner in which 61 Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, inSTREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET , supra note 59, http://www.india-seminar.com/2012/636/ 636_jonathan_s_anjaria.htm. The original sources referenced include P RASHANT KIDAMBI, THE MAKING OF AN INDIAN M ETROPOLIS: COLONIAL G OVERNANCE AND PUBLIC CULTURE IN B OMBAY 1890-1920 (2007); Nirmal Kumar Bose, Calcutta: A Premature Metropolis, 213(3) S CIENTIFIC AMERICAN 90-102 (1965); S IDNEY LOW, A VISION OF INDIA (1907); Arvind Rajagopal, The Violence of Commodity Aesthetics: Hawkers, Demolition Raids, and a New Regime of Consumption, 19(3) SOCIAL TEXT 91-113 (2001); Judy Whitehead & Nitin More, Revanchism in Mumbai? Political Economy of Rent Gaps and Urban Restructuring in a Global City, 42 ECONOMIC AND POLITICAL W EEKLY 2428-2434 (23-29 June 2007); Pushpa Arabindoo, City of Sand: Stately Re Imagination of Marina Beach in Chennai, 35(2) I NTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 379-401 (2010); Appadurai, supra note 48; S ARAYU AHUJA, WHERE THE STREETS LEAD (1997); Tim Edensor, The Culture of the Indian Street , in IMAGES OF THE S TREET – PLANNING, IDENTITY AND C ONTROL IN PUBLIC S PACE, supra note 47, at 201-216; K AIWAN M EHTA, ALICE IN BHULESHWAR: NAVIGATING A MUMBAI NEIGHBOURHOOD (2009). 62 Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, inSTREETSCAPES: A SYMPOSIUM ON THE F UTURE OF THE S TREET, supra note 59, http://www.india-seminar.com/2012/636/ 636_jonathan_s_anjaria.htm. 63 Tim Edensor, The Culture of the Indian Street , in IMAGES OF THE STREET – PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 208, 215 .
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urban planning norms and law countenance and relate to this spatial, interstitial, rhizomic and disruptive promise of the street in India undoubtedly deserves careful attention. The probabilistic demand paths of persons on city streets, and the highly variable modes of private free enterprise and welfare state systems in responding to the spatio-temporal variety of such demand, results in a significant amount of planning, mapping and monitoring complexity. 64 This also creates difficulty in iterating and interpreting regulations (including legislations, rules, guidelines, directives, notifications, departmental orders, etc.) and contracts, and introduces a certain amount of uncertainty into adjudication of rival contentions as regards the proposed or actual use of the common property in question. 65 As Massey eloquently puts it: All attempts to institute horizons, to establish boundaries, to secure the identity of places, can in this sense therefore be seen to be attempts to stabilize the meaning of particular envelopes of space-time .66 Resisting such easy stabilization, the informal economy of street trade presents a compelling challenge to standard assumptions implicit in economic decisionmaking, governmental policy and legal iteration. At the core of the uncertainty is an ambiguous moral decision that involves recognising, as ‘legitimate’, the satisfaction of certain rights arising from informal legal relations of street trade, including, amongst others, the right to livelihood, the right to use of public commons, the right to affordable essential goods, the right to safety, the right to
64
For a useful attempt to theorize this issue from a distribution perspective, see, David Harvey, Social Processes and Spatial Form: The Redistribution of Real Income in an Urban System, in SOCIAL JUSTICE AND THE CITY, supra note 6, at 50-95. 65 See, Nicole Stelle Garnett, Managing the Urban Commons, 160 U. P A. L. REV. 1995-2027 (201112) for a recent review of the literature on commons-space management in the context of urb an public spaces. 66 DOREEN MASSEY, SPACE, PLACE AND GENDER 5 (2001). See also, DOREEN MASSEY, FOR SPACE (2005). 67 See generally, Ananya Roy, Urban Informality – Toward an Epistemology of Planning , 71(2) JOURNAL OF THE AMERICAN PLANNING ASSOCIATION 147-158 (2005).
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trade, and the right to dignity. 67 The moral ambiguity usually arises due to competing claims of macro-level economic efficiency and fairness, health, safety, security, aesthetic preference, city planning, etc. that usually boil down to the question of ‘whose city?’ and related notions of spatial justice. 68 The uncertainty often results from a sceptical philosophical perspective or an intellectual laziness that posits the impossibility of any city effectively planning for all possible private acts that might manifest on common city resources. Ananya Roy identifies informality as a key feature of the idiom of urban planning in India, which proceeds through systems of deregulation, unmapping and exceptionalism, and therefore concludes that ‘India cannot plan its cities.’69 Another major source of this uncertainty is deliberate, a consequence of the state and city planner’s vision of legibility and simplification that directly affects any attempt at simple text/map-based regulation, adjudication or resolution of nontext/map flesh and blood transactions on city commons. Marco Polo’s words from Calvino’s Invisible Cities express one facet of this social fact particularly well: “No one, wise Kublai, knows better than you that the city must never be confused with the words that describe it. ”70 Once again, Massey’s assertion that space is a part of ‘an ever-shifting social geometry of power and signification’ helps clarify what is at play when we critically evaluate the categorisation or legal/ illegal or legitimate/illegitimate in the city and on its streets. 71 Private acts that are socially valuable by direct intention – such as philanthropic initiatives for needy persons or the community as a whole – seldom pose a major moral, utilitarian, regulatory, or adjudicatory complexity. The question of whether 68
Susan S. Fainstein usefully explicates potentially conflicting values (equality, diversity, democracy) and approaches (communicative model, new urbanism model, the just city model) that animate debates in city planning. See , Susan S. Fainstein, Can We Make the Cities We Want,inTHE URBAN MOMENT 249-272 (Sophie Body-Gendrot & Robert Beauregard eds., 1999); Susan S. Fainstein, New Directions in Planning Theory, 35(4) URBAN AFFAIRS R EVIEW 451-478 (2000). See also, Leo Saldanha, Whose Streets, in STREETSCAPES: A SYMPOSIUM ON THE F UTURE OF THE STREET, supra note 59, http://www.india-seminar.com/2012/636/636_leo_f_saldanha.htm. 69 Ananya Roy, Why India Cannot Plan its Cities: Informality, Insurgence and the Idiom of Urbanization, 8(1) PLANNING T HEORY 76, 86 (2009). 70 ITALO CALVINO, INVISIBLE CITIES 611 (1974). 71 MASSEY, SPACE, PLACE AND GENDER , supra note 66, at 3.
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and to what extent the public commons may be used for commercial or “purely private” transactions is more nuanced – and clarity on this aspect becomes critical to creating and interpreting city laws, in shaping the normative attitudes of officials and individual legal subjects, and in conditioning the use of discretion in balancing competing interests for the “greater good” of the community. One of the primary insights to be gained from Ellickson’s erudite albeit problematic 1996 article ‘Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning’ is that the management of public spaces in cities is never a simplistic issue of just supporting or opposing the interests of the poor. 72 While espousing a normative approach that ‘a city’s codes of conduct should be allowed to vary spatially – from street to street, from park to park, from sidewalk to sidewalk’ and that ‘destitute street users have not only rights, but also responsibilities to behave themselves’, Ellickson points out that most of the legal scholars who have written on street misconduct have approached the topic from one of three (overly narrow) angles: hyper-egalitarianism, 73 free-speech libertarianism, 74 and criminal defence.75 Ellickson himself approaches the issue of street order as a problem of land management (and not, predominantly, one of livelihood rights or free speech or crime), argues for a system of zoning (informal or formal as appropriate to the context) for public lands, and concludes with a lament about the excessive federal constitutionalization of street law, which has inhibited US cities from devising localized solutions to the management of downtown spaces. 76 Ellickson’s account is problematic not least because it simply pays insufficient attention to
72 Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning , 105 Y ALE L. J. 1165-1248 (1996). 73 Id., at 1171, 1172. On hyper-egalitarianism, for example, Ellickson refers to Allan C. Hutchison, Les Misérables Redux: Law and the Poor, 2 S. C AL. INTERDISCIPLINARY L.J. 199-244 (1993). 74 Here, for example, Ellickson points out the analytical weaknesses of Helen Hershkoff and Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg , 104 HARV. L. R EV. 896916 (1991). 75 Ellickson cites, amongst others, Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U. PA. L. R EV. 603-650 (1956); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Y ALE L.J. 1-14 (1960). 76 “A constitutional doctrine that compels a monolithic law of public spaces is as silly as one that would compel a monolithic speed limit for all streets.” See , Robert C. Ellickson, supra note 75, at 1247. 77 For a trenchant and persuasive critique of Ellickson’s arguments, see, DON MITCHELL, RIGHT TO THE CITY: SOCIAL JUSTICE AND THE FIGHT FOR PUBLIC SPACE (2003).
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the underlying causes of street destitution and the attendant problems of distributive and spatial justice that these raise. 77 The street is where the state that seeks legibility of all its citizens and each of their transactions meets persistent resistance and insurmountable practical challenges in realising its vision. James Scott’s classic ‘ Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed’ analyses diverse failures in highmodern, authoritarian state planning – collectivisation in Russia, the building of Brasilia (in accordance with Le Corbusier’s vision), compulsory ujamaa villages in Tanzania, Lenin’s Russia, etc. – and concludes that ‘[c]ollectivized command economies virtually everywhere have limped along thanks to the often desperate improvisation of an informal economy wholly outside its schemata.’ 78 In all modern cities, the nonconforming informal practice is an indispensable condition for formal order. In all modern nation states, the economy is ‘a subsystem of a finite and nongrowing eco-system,’ whose carrying capacity and interactions it must respect as a condition of its own persistence. 79 This fragile, often invisibilised, relationship between the street economy and the street (and city) eco-system suffers when state activities and state officials insist on treating people on the streets according to inadequately nuanced, high-modernism influenced schemata. The economic plan, city plan, development plan, city map, survey map, zonal map, record of ownership, kiosk license, market vending license, fixed cart license, zone management plan, classification of religion or caste or ethnicity, arrest record, map of political boundaries, etc. constitute the synoptic data that the state uses for its miniaturised legibility and simplification schemata of the city streets. In accord with Scott’s critique of the governmental modernist gaze, Mayaram concludes that ‘[r]egimes of urban planning in India have been influenced, more often than not, by the Le Corbusier approach.’ 80 Relatedly, Prasad Shetty’s
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JAMES SCOTT, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION HAVE FAILED 351 (1998). 79 Herman E Daly, Policies for Sustainable Development, PAPER PRESENTED AT THE P ROGRAM IN AGRARIAN STUDIES, YALE UNIVERSITY, NEW HAVEN 4 (February 9, 1996), as cited in SCOTT , id. 80 Mayaram, supra note 36, at 8. See also, Le Corbusier, Towards a New Architecture , excerpted in FROM MODERNISM TO POSTMODERNISM: AN ANTHOLOGY 200-211 (Lawrence E. Cahoone ed., 1996).
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delightful essay points out how even as cartographic and orthogonal logics shape the official validation of urban form in Mumbai, the city’s actual enterprise, property relationships and urban life nonetheless resiliently get worked out in blurry claims of multiple tenancies, sub-tenancy, squatting, customary rights, temporary vending, and flânerie .81 While it does seem that urban planning in many Indian cities has been gripped by a modernist ‘seeing like the state’ mania, 82 and this undoubtedly does raise some serious concerns for spatial justice, socio-legal scholar Mariana Valverde’s exemplary work on the history of urban governance cautions us to three interrelated possibilities that might apply depending on the particular context under analysis: 1) technologies of governance – say, zoning ordinances – are not “married” to specific rationalities of governance or default politics, and therefore, legal inventions such as zoning remain malleable rather than being ‘hard-wired to social exclusion agendas’; 2) ‘seeing like a city’ rather than Scott’s ‘seeing like a state’ may be the more appropriate label to describe a pragmatic urban governance that is capable of flexibly using a variety of legal and regulatory tools of quite contradictory provenances and logics (for example, modern ‘zoning’-based regulation and pre-modern ‘nuisance’-based regulation), and; 3) in some contexts, community-level decision making, rather than centralized planning, will lead to further inequality within an urban space. 83 Valverde’s cautionary and sometime counter-intuitive notes should be kept in mind when analysing urban governance in any particular spatial context within India. The Indian street is part of a ‘spatial complex’ that includes the bazaar and the
81 Prasad Shetty, Of Blurry Claims and Forms, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 62, http://www.india-seminar.com/2012/636/636_prasad_shetty.htm. 82 See , Michael Goldman, Speculating on the Next World City, at 229-258;Ananya Roy, The Blockade of the World-Class City: Dialectical Images of Indian Urbanism, at 259-278; and D. Asher Ghertner, Rule by Aesthetics: World-Class City Making in Delhi, at 279-306, all in,WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL, supra note 28. See also, Shruti Ravindran, Is India’s 100 smart cities project a recipe for social apartheid , THE G UARDIAN, http:/ /www.theguardian.com/cities/2015/may/07/india-100-smart-cities-project-social-apartheid. 83 Mariana Valverde, Seeing like a City: The Dialectic of Modern and Premodern Ways of Seeing in Urban Governance , 45 L AW & S OCIETY REVIEW 277-312, (2011); M ARIANA VALVERDE, EVERYDAY LAW ON THE STREET: CITY GOVERNANCE IN AN AGE OF DIVERSITY (2012). 84 Dipesh Chakrabarty, Open space/public space: garbage, modernity and India, 16 S OUTH ASIA 63-73 (1991), cited from Tim Edensor, The Culture of the Indian Street , in IMAGES OF THE STREET – PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 201, 208.
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fair, which together constitute an unenclosed realm that provides ‘a meeting point of several communities’ in recent times, however, ‘the thrills of the bazaar are traded in for the conveniences of the sterile supermarket.’ 84 The street in India is where a marriage procession spontaneously celebrates a union. The street is where the unlicensed street food vendor meets extreme police brutality as she returns home after a long day’s work. The street is where public demonstrations, traffic breakdowns, cycling critical mass demonstrations, carnivals, dinner-time shopping, snack urges, traffic offences, festival celebrations,crimes, prostitution, religious celebrations, tree-killing, public nationalisms, gang-rapes, and a whole host of other infinitely varying activities create the component parts of the city street ethos. Lamenting Bangalore city’s plan to widen Avenue Road, Lata Mani points out that: [s]treets are life worlds. People in action, cultures in play. The street is a theatre of contiguity, chance, conflict and conviviality. A delicate, imprecise equilibrium … Cold anonymity has not been a feature of our urbanism … It is people who have dynamised our streets … Social hierarchy and spatial proximity have accordingly been intrinsic features of urban life … Any conception of ‘the global city’ that is at odds with the prevailing nature of Indian urbanism is equally at odds with its cultural substructure … surely equivalent to destabilising the ground beneath our feet. 85 Sartre’s assertion that ideas cannot digest reality seems particularly true of the city planners’ simplification of the street in most cities. This disjunction between ideas and reality asserts its salient mischief through the violence that is enacted on bodies, livelihoods and lives connected to the informal street economy or ecosystem. Kropotkin’s conviction that we cannot legislate for the future notwithstanding, it is possible to make a convincing case that planning for our streets in our cities should espouse institutions that are powerfully shaped by practical spatial knowledge and local customs, what James Scott describes as metis. Such metis friendly institutions would be multi-functional, plastic, diverse, and adaptable – these institutions would embrace rather than ignore or fear the urban interstice. Second, planning for our streets in our cities should recognise the 85 Lata Mani, Urban triptych, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 59, http://www.india-seminar.com/2012/636/636_lata_mani.htm.
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vocabulary, the grammar, the idiom, the logic, and the formulation of spatial justice and the right to the city. Third, planning for our streets in our cities should unabashedly celebrate the singular uniqueness of our postcolonial moment and its attendant political forms, practices, and norms. Massey’s concluding comments from ‘ For Space’ remind us of the infinite possibilities of the interstitial here-and-now: Space is as much a challenge as is time. Neither space nor place can provide a haven from the world. If time presents us with the opportunities of change and (as some would see it) the terror of death, then space presents us with the social in the widest sense: the challenge of our constitutive interrelatedness – and thus our collective implication in the outcomes of that interrelatedness; the radical contemporaneity of an ongoing multiplicity of others, human and non-human; and the ongoing and ever-specific project of the practices through which that sociability is to be configured. 86 STREET VENDING
Street vendors – and the mode of production and consumption that their livelihood constitutes and represents - are ubiquitous in every city across the world today precisely because the problem of production has not truly been solved. In Mesoamerica, ‘street commerce played a central role in the Aztec civilization’ and ‘Tenochtitlan’s central markets depended on complex networks that extended throughout Mesoamerica’. 87 The celebrated French historian Fernand Braudel was one of the first scholars to explicitly focus on the history of street vendors. In his seminal work Civilization and Capitalism, 15 th-18 th Century, Braudel points out that the sheer number of peddlers and the areas they covered meant that th ey ‘stimulated and maintained trade, and spread it over a distance’ in early modern Europe.88 While pointing out that peddlers had a crucial influence on the distribution of certain goods (for example, Bohemian glassware, almanacs and 86 MASSEY, FOR SPACE, supra note 66, at 105. 87 Veronica Crossa, Resisting the Entrepreneurial City: Street Vendors’ Struggle in Mexico City’s Historic Center , 33(1) I NTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 43, 51 (2009). 88 FERNAND BRAUDEL, 2 WHEELS OF COMMERCE: C IVILIZATION AND CAPITALISM, 15TH-18TH CENTURY 76 (2002). 89 Id., at 78-79.
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popular literature) to rural areas, Braudel highlights that many peddlers were seasonal migrants. 89 As correctly identified by Danielle van den Heuvel, Braudel also highlights that early modern itinerant traders occupied a ‘marginal position in society, expressed both in their income levels and in their activities, which were often on the fringes of legality.’ 90 Heuvel’s scholarly chapter also points out that it was the work of Olwen Hufton and Laurence Fontaine that first seriously questioned the supposedly marginal position of itinerant traders, 91 and additionally, Fontaine had made the point that ‘those sources that contain most information about peddlers, such as legal and police records, only revealed the exceptional and marginal’ and therefore ‘thorough and imaginative methods’ were required to reveal the true character of ambulant trading. 92 While a proper history of street vending in ancient, early modern, and colonial India is yet to be written, considerable scholarly references to early street vending in India do exist. Amalendu Guha in the Cambridge Economic History of India , for example, points out that “there was only a small daily bazaar on a narrow street in the Ahom capital of Garhgaon in the 1660s; and the only sellers who sat there…were betel-leaf sellers…women vendors, amongst others, brought headloads of various provisions for sale to Nazirahat, located outside the city gates.” 93 A fascinating chapter by Dirk H.A. Kolff on the market for mobile labour in early modern North India concludes that mobile labour was characterised, “above all, by its many fluidities: occupational or vocational fluidities, fluidities of
90 Danielle van den Heuvel, Selling in the Shadows: Peddlers and Hawkers in Early Modern Europe , in WORKING ON LABOR – ESSAYS IN HONOR OF JAN LUCASSEN 125, 129 (Marcel van der Linden and Leo Lucassen eds., 2012). Heuvel also identifies book history, migration history, and women’s history as three strands of history that did devote substantial attention to peddlers and other itinerant traders in early modern Europe. Works cited include M ARGARET SPUFFORD, SMALL BOOKS AND PLEASANT HISTORIES: POPULAR FICTION AND ITS READERSHIP IN SEVENTEENTH -CENTURY ENGLAND (1981); M ARGARET S PUFFORD, T HE G REAT R ECLOTHING OF R URAL E NGLAND: P ETTY CHAPMEN AND THEIR WARES IN THE SEVENTEENTH CENTURY (1984); Leo Lucassen, A Blind Spot: Migratory and Travelling Groups in Western European Historiography, 38 I NTERNATIONAL REVIEW OF SOCIAL HISTORY 209-235 (1993); A LICE CLARK, WORKING LIFE OF WOMEN IN THE SEVENTEENTH CENTURY (1919); Merry Wiesner Wood, Paltry Peddlers or Essential Merchants? Women in the Distributive Trades in Early Modern Germany, 12 SIXTEENTH CENTURY JOURNAL, 3-14 (1981). 91 OLWEN HUFTON, THE POOR OF EIGHTEENTH-CENTURY FRANCE (1974); LAURENCE FONTAINE, HISTORY OF PEDLARS IN EUROPE (1996). 92 Heuvel, supra note 90, at 129, 130.
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negotiated or renegotiated employment relationships, fluid multiple identities and disguises, fluidities of state formation and of the agencies of brokers on the (military) labour markets. To what extent these fluidities were preserved and perhaps transformed when modernity and globalisation, both colonial and post-colonial, turned India’s circulatory energies into external diasporas, is an intriguing question.”94 Focusing on more recent times (1850-1925), Patricia Acerbi’s excellent dissertation thesis describes and analyses the transition from enslaved vendors to free vendors, from ganhadores to ambulantes, in Rio de Janeiro, Brazil and concludes: “the process of Brazilian democratization – always ongoing and never a finished product – must incorporate the logic of informality and understand the dialogic conditions that create formality and informality, since it is how the majority of urban Brazilians have come to understand justice and citizenship.” 95 In a more recent piece, invoking both Lefebvre and Michel de Certeau, Acerbi states that ‘[b]y walking the city, street vendors adapted to new conditions and provided urban inhabitants with basic needs, facilitating the circulation of goods in a city where most people did not have easy access to stores, markets, and public transportation’, and concludes that in Rio de Janeiro today, ‘street commerce continues to occupy a contested liminal space between convenient necessity, inadequacy, and nuisance.’ 96
93 Amalendu Guha, Appendix: The Medieval Economy of Assam, in CAMBRIDGE ECONOMIC HISTORY OF INDIA, VOLUME 1, C.1200 – C.1750, at 478, 489 (Tapan Raychaudhuri & Irfan Habib eds., 2004 reprint edition). 94 Dirk H.A. Kolff, The Market for Labour in Early Modern North India, in ROUTLEDGE HANDBOOK OF THE SOUTH ASIAN DIASPORA 23, 30 (Joya Chatterji and David Washbrook eds., 2013). 95 Patricia Acerbi, Slave Legacies, Ambivalent Modernity: Street Commerce and the Transition to Free Labor in Rio de Janeiro, 1850-1925, at 306-307 (2010) (unpublished dissertation, University of Maryland), http://drum.lib.umd.edu/bitstream/1903/10899/1/Acerbi_umd_0117E_ 11557.pdf. 96 Patricia Acerbi, A Long Poem of Walking : Flâneurs, Vendors, and Chronicles of Post-abolition Rio de Janeiro, 40(1) JOURNAL OF URBAN HISTORY 97, 111 (2014). 97 Keith Hart, Informal Income Opportunities and Urban Employment in Ghana, 11(1) J OURNAL OF MODERN A FRICAN STUDIES 61-89 (1973), which was initially presented at the “Urban Unemployment in Africa” conference held at the Institute of Development Studies of the University of Sussex in September 1971.
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In contrast to historical studies, street vending in contemporary contexts has been widely studied ever since the presentation and publication of Keith Hart’s muchcited study on informal employment opportunities in Ghana. 97 Street vending is currently most prevalent in sub-Saharan Africa, where in several cities, street vending ranges between 12 per cent and 24 per cent of the total urban informal
98 ILO-WIEGO, WOMEN AND MEN IN THE INFORMAL ECONOMY 2013: A S TATISTICAL PICTURE (2013), cited from SALLY ROEVER, INFORMAL ECONOMY MONITORING STUDY SECTOR REPORT: STREET VENDORS 5 (2014). 99 While a detailed overview of the literature on the informal economy/sector/worker is not possible here, the interested reader is guided to T HE INFORMAL ECONOMY: STUDIES IN ADVANCED AND L ESS D EVELOPED C OUNTRIES (Alejandro Portes, Manuel Castells, & Lauren Benton eds., 1989); H ERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE REVOLUTION IN THE THIRD WORLD (1989); PHILIP HARDING AND RICHARD JENKINS, THE MYTH OF THE HIDDEN ECONOMY : TOWARDS A NEW UNDERSTANDING OF INFORMAL ECONOMIC ACTIVITY (1989); J AN BREMAN, FOOTLOOSE LABOUR: WORKING IN INDIA’S INFORMAL ECONOMY (1996); T HE UNORGANISED SECTOR: WORK SECURITY AND SOCIAL PROTECTION (Renana Jhabvala & RKA Subrahmanya eds., 2001); ILO, W OMEN AND MEN IN THE INFORMAL ECONOMY: A STATISTICAL PICTURE (2002); ILO, D ECENT WORK AND THE INFORMAL ECONOMY (2002); INFORMAL ECONOMY CENTRESTAGE: NEW STRUCTURES FOR EMPLOYMENT (Renana Jhabvala, Ratna M. Sudarshan, & Jeemol Unni eds., 2003); R ETHINKING INFORMALIZATION: POVERTY, P RECARIOUS J OBS AND S OCIAL P ROTECTION (Neema Kudva & Lourdes Beneria eds., 2005); LINKING THE FORMAL AND INFORMAL ECONOMY – CONCEPTS AND PRACTICES (Basudeb GuhaKhasnobis, Ravi Kanbur and Elinor Ostrom eds., 2006); N ATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED SECTOR, REPORT ON CONDITIONS OF WORK AND PROMOTION OF LIVELIHOODS IN THE U NORGANISED S ECTOR (2007); T RADE L IBERALIZATION AND I NDIA’S I NFORMAL E CONOMY (Barbara Harriss-White and Anushree Sinha eds., 2007); Áureo De Paula & José J. Scheinkman, The Informal Sector , NBER W ORKING PAPER (2007); N ATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED SECTOR, REPORT ON DEFINITIONAL AND STATISTICAL ISSUES RELATING TO INFORMAL ECONOMY (2008); Rafael La Porta and Andrei Shleifer, The Unofficial Economy and Economic Development , BROOKINGS PAPERS ON ECONOMIC ACTIVITY (2008); M ARC BACCHETTA, EKKEHARD ERNST & JUANA P BUSTAMANTE, GLOBALIZATION AND INFORMAL JOBS IN DEVELOPING COUNTRIES (2009); NATIONAL COMMISSION FOR E NTERPRISES IN THE UNORGANISED SECTOR, THE CHALLENGE OF EMPLOYMENT IN INDIA – AN INFORMAL ECONOMY PERSPECTIVE (2009); IS INFORMAL NORMAL? TOWARDS MORE AND BETTER JOBS IN DEVELOPING COUNTRIES (Johannes P. Jutting & Juan R. de Laiglesia eds., 2009); SUGATA MARJIT & S AIBAL KAR, THE OUTSIDERS: ECONOMIC REFORMS AND INFORMAL LABOUR IN A DEVELOPING ECONOMY (2011); Martha Alter Chen, The Informal Economy: Definitions, Theories and Policies, WIEGO WORKING P APER N O. 1 (August 2012); Jacques Charmes, The Informal Economy Worldwide: Trends and Characteristics, 6(2) T HE JOURNAL OF APPLIED ECONOMIC RESEARCH 103-132 (2012); Ejaz Ghani, William R. Kerr, & Stephen D. O’Connell, The Exceptional Persistence of India’s Unorganized Sector , WORLD BANK POLICY RESEARCH WORKING PAPER N O. 6454 (2013); Ravi Kanbur, Informality: Causes, Consequences and Policy Responses, PAPER PREPAREDFOR RESERVE BANK OF INDIA (2014). For recent work on the (successful) politics of informal workers, see RINA AGARWALA, I NFORMAL LABOR, FORMAL POLITICS, AND DIGNIFIED DISCONTENT IN INDIA (2013).
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employment.98 While the literature on the informal economy offers no ready answers with regard to realising interstitial spatial justice or with regard to fashioning urban modernity, 99 a newer interdisciplinary literature, which Ryan Thomas Devlin amongst others labels as informal urbanism, does approach these spatial issues in a more direct and useful fashion. 100 A survey of three edited collections - the forthcoming Street Vending in the Neoliberal City: A Global Perspective on the Practices and Policies of a Marginalized Economy (2015), Street Vendors in the Global Urban Economy (2009) and Street Entrepreneurs: People, place and politics in local and global perspective (2007) – makes it 100 See , for example, JANICE PERLMAN, THE MYTH OF MARGINALITY: URBAN POVERTY AND POLITICS IN RIO DE JANEIRO (1976); M ICHEL LAGUERRE, THE INFORMAL CITY (1994); A SEF BAYAT, STREET POLITICS: POOR PEOPLE’S MOVEMENTS IN IRAN (1997); C ITIES AND C ITIZENSHIP (James Holston ed., 1999); Asef Bayat, From Dangerous Classes to Quiet Rebels: Politics of the Urban Subaltern in the Global South, 15(3) INTERNATIONAL SOCIOLOGY 533-557 (2000); U RBAN INFORMALITY – TRANSNATIONAL PERSPECTIVES FROM THE MIDDLE EAST, LATIN AMERICA, AND SOUTH ASIA (Ananya Roy & Nezar Al Sayyad eds., 2003); Ananya Roy, Urban Informality – Toward an Epistemology of Planning , supra note 67; Judith E. Innes, Sarah Connick & David Booher, Informality as Planning Strategy: Collaborative Water Management in the CALFED Bay-Delta Program, 73(2) JOURNAL OF THE AMERICAN PLANNING ASSOCIATION 195-210 (2007), all of which have been cited from Ryan Thomas Devlin, Informal Urbanism: Legal Ambiguity, Uncertainty, and the Management of Street Vending in New York City (2010) (unpublished Ph.D. dissertation, University of California, Berkeley). For more recent writing from this approach, see Ash Amin, Telescopic Urbanism, 17(4) CITY 476-492 (2013), and the collection of papers in Informal Urbanism, 37(1) B UILT ENVIRONMENT (2014). 101 See STREET V ENDING IN THE N EOLIBERAL C ITY: A GLOBAL PERSPECTIVE ON THE PRACTICES AND POLICIES OF A MARGINALIZED ECONOMY (Kristina Graaf & Noa Ha eds., forthcoming Sept. 2015); STREET VENDORS IN THE GLOBAL URBAN E CONOMY (Sharit Bhowmik ed., 2009); S TREET ENTREPRENEURS: PEOPLE, PLACE AND POLITICS IN LOCAL AND GLOBAL PERSPECTIVE (John Cross and Alfonso Morales eds., 2007). 102 “Over the centuries and across the world, street vending has been practiced in many different ways. Most vendors sell goods, but some sell services, and some sell a mixture of the two. Some vendors are fixed in one location, using a kiosk or a heavy stall which remains in the same location for months or even years and is locked up and left under the supervision of a watchman when not in use. Others use heavy mobile stalls which are pushed from a storehouse into the sales position at the beginning of the working day, and pushed back at the end. Still others are fixed in location, but simply lay their merchandise ou t on the ground or on a sheet of cloth or plastic. Truly mobile vendors may push stalls on wheels, carry their merchandise on their persons, or operate a stall off a cart, a tricycle, or a motor vehicle. Some mobile vendors sell to passers-by, some do door-to-door delivery, and still others hawk from building to building…. Street vending may be practiced full-time, part-time, seasonally or occasionally. It can be fixed, occasionally mobile, or almost continuously mobile, and it can go on at any or all times of the day and night. The firms involved can range from one-person micro-enterprises, through numerous forms of partnership and family business, up to franchisees, pieceworkers and wageworkers of larger off-street businesses. Some street vendors are branch operations of off-street stores,
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evident that urban street vending is a highly contested global phenomenon with no easy one-size-fits-all answers. 101 Street vending varies greatly in scale, timing, location, remuneration; it varies in terms of workforce, and types of goods and services.102 The historian Danielle van den Heuvel usefully surveys the relevant literature (on contemporary street vending) and highlights central propositions on the characteristics of street vending, its origins and determinant causes, and finally, its effects on participants and the economy. 103 On street vending and the actors involved in the contemporary contexts of developing economies: 1) most scholars identify street vendors as relatively poor urban dwellers who are often, but not always, new to the cities they live in, and in many cases the majority of the street traders are women (though for most Indian cities, male vendors far outnumber women vendors);104 2) the enterprises of street vendors are often small familybased operations and;105 3) most street vendors operate in the shadows of the official economy, are unlicensed and pay no, or very little, taxes. 106 Further, Heuvel points out that the rise and persistence of informal street selling have been explained by social scientists on the basis of a number of different factors including rapid
103 104
105 106
sometimes right outside the store, at other times some distance away. Other street vendors create their own branch operations, dividing their merchandise and sending some of it with a relative, partner or employee to sell at another location……… Most street operations are much smaller in scale than fixed stores or supermarkets in off-street locations, but a few are quite substantial, ranging from truck-borne mobile stores, to big fixed stalls and kiosks in strategic high-demand locations. The income distribution of street vendors is highly skewed, with a few making quite high incomes, comparable to those of successful storekeepers and career professionals, and most making relatively low incomes, comparable to those of unskilled manual laborers.” See Ray Bromley, Street Vending and Public Policy: A Global Review, 20 (1/2) I NTERNATIONAL JOURNAL OF SOCIOLOGY AND SOCIAL POLICY 1, 2-3 (2000). Heuvel, supra note 90, at 134-137. Sources cited include TERENCE GARY MCGEE & YUE-MAN YEUNG, HAWKERS IN SOUTHEAST ASIAN CITIES: PLANNING FOR THE BAZAAR ECONOMY (1977); N ARUMOL NIRATHRON, FIGHTING POVERTY FROM THE S TREET – A S URVEY OF S TREET F OOD V ENDORS IN B ANGKOK (2006); Sally Christine Roever, Negotiating Formality: Informal Sector, Market and State in Peru (2005) (unpublished Ph.D. dissertation, University of California at Berkeley); Jacques Charmes, G ENDER AND INFORMAL SECTOR IN THE WORLD ’S WOMEN 2000: T RENDS AND STATISTICS (1999). Sources cited include TERENCE GARY MCGEE & Y UE-MAN YEUNG, id. and Sally Christine Roever, id. Sources cited include DE SOTO, supra note 99; Martha Alter Chen, Rethinking the Informal Economy: Linkages with the Formal Economy and the Formal Regulatory Environment , in LINKING THE FORMAL AND INFORMAL ECONOMY – CONCEPTS AND PRACTICES, supra note 99, at 75-92; Bromley, supra note 102.
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urbanization, large waves of internal migration, processes of modernization, industrialization and bureaucratization, the role of micro-economic factors such as increased demand for prepared food to be readily available on the streets or the attraction of the flexibilities of street vending as an occupation, particularly for female vendors, etc. 107 Finally, Heuvel points out that the question ‘what effect informal street vending has on the people involved and on the wider economy’ has proved even more difficult to answer than why street selling is such an important feature in the cities of many developing economies, and views on the issue range “from very positive (regarding it as a way for marginal groups to make a living and eventually to enter the formal sector) to very negative (seeing it as a dead end, jobs with no protection, very little income and opportunities)”. 108 Sally Roever synoptically surveys the literature documenting this ambivalence to street vending and states: displacements have been documented from Mexico City to Delhi, Harare to Istanbul, Maseru to Hanoi (Crossa 2009; Dupont 2011; Skinner 2010; Öz and Eder 2012; Setsabi 2006; Turner and Schoenberger 2011)…..alternative models that consider vendors in natural markets as an essential component of local economies and 107 Sources referenced here include DE S OTO, supra note 99; Lourdes Beneria & Maria Floro, Distribution, Gender, and Labour Market Informalization: A Conceptual Framework with a Focus on Homeworkers, in RETHINKING INFORMALIZATION: POVERTY, PRECARIOUS JOBS AND SOCIAL PROTECTION, supra note 99, at 9-27; Chen, id.; John C. Cross, Street Vendors, Modernity and Postmodernity: Conflict and Compromise in the Global Economy, 20(1/2) I NTERNATIONAL JOURNAL OF SOCIOLOGY AND SOCIAL POLICY, supra note 102, at 29-51; Leo Lucassen, To Move or Not to Move - A Global Review of Migration to the City Since the 18th Century, unpublished paper; Timothy Thim-Fook, Food for the City: The Role of the Informal Sector , 4 G EOJOURNAL, 49-59 (1982); N ARUMOL NIRATHRON, supra note 104; Zoe Elena Horn, No Cushion to Fall Back On – the Global Economic Crisis and Informal Workers, INCLUSIVE CITIES STUDY (August 2009); MONIQUE COHEN, WOMEN STREET VENDORS: THE ROAD TO R ECOGNITION (2000). 108 Heuvel, supra note 90, at 136-137. 109 Roever, supra note 98, at 5-6. The original sources referenced include Crossa, supra note 87; Véronique D.N. Dupont, The Dream of Delhi as a Global City, 35(3) I NTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 533-554 (May 2011); Caroline Skinner, Street Trading Trends in Africa: A Critical Review, in STREET VENDORS IN THE GLOBAL URBAN ECONOMY , supra note 101; Özlem Öz & Mine Eder, Rendering Istanbul’s Periodic Bazaars Invisible: Reflections on Urban Transformation and Contested Space , 36(2) I NTERNATIONAL JOURNAL OF URBAN AND REGIONAL R ESEARCH 297-314 (March 2012); Setšabi Setšabi, Contest and Conflict: Governance and Street Livelihoods in Maseru, Lesotho, in CONTESTED SPACE: STREET TRADING, PUBLIC SPACE, AND L IVELIHOODS IN DEVELOPING C ITIES (Alison Brown, ed. 2006); Sarah Turner & Laura Schoenberger, Street Vendor Livelihoods and Everyday Politics in Hanoi, Vietnam: The Seeds of a Diverse Economy? , 49(5) U RBAN STUDIES 1027-1044 (April 2011); Alison Brown, Michal Lyons
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legitimate participants in urban policy processes (Brown et al. 2010; Çelik 2009; Crossa 2009; Dobson and Skinner 2009; Lindell 2010; Kumar 2012).109 Bromley’s global review of street vending provides a useful summary of the major arguments that are frequently used to justify and to oppose the continuation and proliferation of street vending, and are worth reiterating here in brief. The eleven major arguments in support of street vending include: 1) Street vendors contribute directly to the overall level of economic activity, and to the provision of goods and services; 2) Citizens have constitutional rights to choose their occupations and to engage in entrepreneurial activities; 3) Street vending is an actual or potential source of government tax revenues; 4) Street vending serves as a social safety-net; 5) Street vending is a laboratory for entrepreneurship, family business and social interaction; 6) Street vending provides entrepreneurial opportunities to people who cannot afford to buy or rent fixed premises; 7) Street vendors greatly expand the range of places and times where goods and services can be provided, and sometimes they also offer goods and services which are not available in off-street locations; 8) Street vendors bring life to dull streets; 9) Because of its low capital requirements and its potential mobility, street vending is a very effective way to cater for seasonal, sporadic and special demands; 10) Street vending offers its workers considerable flexibility in hours and levels of activity and; 11) Street vending is a remarkable example of self-help and grass-roots initiative. 110 Bromley articulates the sixteen major arguments commonly used against street vending as: 1) Street vendors are not evenly spread across the city. They concentrate very heavily in a few locations, and those locations are typically the points with the highest levels of pedestrian and vehicular congestion; 2) By contributing to vehicular and pedestrian congestion, street vendors may cause traffic accidents, increase the levels of vehicle-generated air pollution, and impede the flow of police, & Ibrahima Dankoco, Street Traders and the Emerging Spaces for Urban Voice and Citizenship in African Cities, 47(3) U RBAN STUDIES 666-683 (January 2010); E RCÜMENT ÇELIK, STREET TRADERS: A BRIDGE BETWEEN T RADE U NIONS AND S OCIAL M OVEMENTS IN C ONTEMPORARY S OUTH AFRICA (2009); R ICHARD DOBSON & CAROLINE SKINNER WITH JILLIAN NICHOLSON, WORKING IN WARWICK: INCLUDING STREET TRADERS IN URBAN PLANS (2009); AFRICA’S INFORMAL WORKERS: COLLECTIVE AGENCY, ALLIANCES AND TRANSNATIONAL ORGANIZING IN URBAN AFRICA (Ilda Lindell ed., 2010); Randhir Kumar, The Regularization of Street Vending in Bhubaneswar, India: A Policy Model , WIEGO POLICY BRIEF (URBAN POLICIES ) NO. 7 (2012). 110 Bromley, supra note 102, at 5-6.
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fire, ambulance and other emergency vehicles; 3) Street vending reduces the number of routes available to motor vehicles, it impedes door-to-door deliveries and collections, and it may create access problems for emergency vehicles; 4) Street vendors may block the routes of egress from crowded buildings like theatres, stadiums and department stores, increasing the scale of the tragedy in the event of a major fire, explosion, toxic gas escape or mass hysteria; 5) Street vendors can and often do “forestall” off-street businesses, attracting potential purchasers as they walk into a concentration of on- and off-street business activity; 6) Street vendors often fail to give receipts and keep accounts, to pay taxes on their earnings, and to charge sales or value added taxes to their customers; 7) Because they can leave or relocate their businesses more easily, street vendors have greater opportunity to swindle their customers and avoid official regulation than vendors in fixed retail establishments; 8) Street vendors of food and drink pose major public health problems; 9) Street vendors may be less professional, committed, and responsible than off-street vendors; 10) Street vendors often include substantial numbers of minors; 11) A small minority of street vendors engage in such highly disreputable and often illegal trades as ticket-touting, pimping, prostitution, and the retailing of narcotics; 12) Street vendors contribute to the underground economy of undocumented cash transactions, not only through their sales, but also through the bribes they are often required to pay to police and municipal inspectors; 13) Through the activity and congestion that they generate, street vendors provide opportunities for pick-pocketing, snatch thefts and armed assaults; 14) Some pedestrians and many motorists are disturbed, irritated and even frightened by street vendors’ solicitations; 15) Street vendors are often considered unsightly, they may generate a lot of noise with their announcements, and they and their customers often leave garbage on the streets; 16) In orthodox Marxist visions, street vendors are viewed as the epitome of surplus labour and underemployment, inserting additional middlemen into marketing chains, promoting superfluous consumption, and supporting a petty capitalist, competitive ethic. 111 The significance of the different arguments varies considerably from country to country, from city to city, and in accordance with the specific characteristics of the vendor, merchandise and the neighbourhood under analysis. Significantly, the most heated debates on street vending concern ‘conflict-zones’ of agglomeration or hyper-agglomeration (usually less than five percent of the urban area and including the central business district, various neighbourhood and suburban commercial centres, the major sports and entertainment centres, tourist attractions, religious sites, monuments, etc.). 112 Consequently, each argument (whether for or against street vending) deserves careful empirical study within the context of its 36
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applicability. While a detailed global overview of urban street vending is beyond the scope of this speculative review essay, Roever’s Informal Economy Monitoring Study (IEMS) Sector Report on Street Vendors demonstrates the possibility and value of multicity research on street vending and usefully details some clear patterns that emerge (across the five cities studied) with regard to status in employment, enterprise structure, gender, and working conditions. 113 The IEMS study focuses on the way in which three sets of driving forces – macroeconomic, city/government, and value chain – play out among different segments of the street vending sector across 111 Bromley, supra note 102, at 9-10. 112 Bromley, supra note 102, at 15-16. 113 “Street vending is not a temporary occupation for most vendors in the sample: on average, women have been working as street vendors for 14.2 years and men for 12.8 years……For vendors without a fixed post – those who walk along streets, sidewalks, and transport routes, selling only what they can carry – the profit margin depends on their ability to sell in areas with a large enough customer base and small enough number of competitors…….. Data from the focus groups indicate a strong reliance among vendors on having a regular workplace where returning customers can easily find them; in the survey, 90 per cent repo rted that they work at the same place every day….. Among the few who do not work at the same place every day, 40 per cent are mobile hawkers who carry their goods and sell on foot, and 60 per cent have some sort of cart, stand, table, or ground cover…… More than two thirds of vendors live in households for which street vending provides the main source of household income……. In no city does formal wage employment provide more than 9 per cent of households with their primary source of income….. Among street vendors in the five cities, men have significantly higher levels of education than women….. Overall, women are nearly twice as likely as men to sell produce, and men are nearly twice as likely as women to sell durables. The latter includes, most commonly, garments, electronics, and DVDs…… vendors in the IEMS sample described unstable patterns of earnings and expenditures and unpredictable work environments.They tend to face frequent disruptions in earnings and savings – not only from being unable to work when they are ill, but also from costs imposed through systemic factors – that undermine their ability to save over time. …. Recovering from these disruptions while keeping up with household expenses was a common challenge, particularly for the most vulnerable vendors.” See Roever, supra note 98, at 8-13. 114 In the section ‘Key Findings’, the study states: “Overall, the one most consistently and highly ranked driver in every city was abuse of authority, including police harassment, demands for bribes, arbitrary confiscations of merchandise, and physical abuse. Street vendors also ranked the lack of a fixed and secure workplace and evictions from (or demolitions of) existing workplaces among the most significant negative drivers. Regulatory restrictions and government practices relating to licensing and fees were also significant. Notably, where vendors did have a secure workplace or an effective license to work, they ranked it among the most positive forces…Urban infrastructure and services were also identified as significant drivers in all five cities. Vendors identified lack of shelter, inadequate storage facilities, and insufficient supply of water, electricity, toilets, and waste removal services as systemic factors that undermine productivity and limit their ability to accumulate over time…… Again, where access to or quality of urban infrastructure was good, vendors identified it as a significant positive driver.” See Roever , supra note 98, at 59.
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five cities (Accra, Ghana; Ahmedabad, India; Durban, South Africa; Lima, Peru; and Nakuru, Kenya), and finds that drivers related to the city/government are the most significant for street vendors. 114 Roever points out that the IEMS data contributes to our understanding on three theoretical issues of importance: 1) certain components of the external environment (these include ‘include abuse of authority on the part of local governments; restrictive and non-transparent regulations; poor quality of infrastructure and services for which vendors pay; and unfair value chain practices’) constrain street vending and informal enterprise as they are linked to a lack of effective legal rights and bargaining power; 2) street vendors and informal economic actors engage or are forced to engage with the state regulatory system in unique and distinctly disadvantaged ways rather than operating outside of regulatory systems, and; 3) some street vending organisations position themselves as ‘worker organizations and/or affiliated with the trade union movement, while others position themselves as business or entrepreneurs’ organizations’, and the relative merits of both positions requires further empirical research. 115 115 See Roever , supra note 98, at 59-61. 116 See , for example, Appadurai, supra note 49; A RJUN APPADURAI, MODERNITY AT LARGE: CULTURAL DIMENSIONS OF GLOBALIZATION (1996); Arjun Appadurai, Spectral Housing and Urban Cleansing: Notes on Millenial Mumbai, 12(3) PUBLIC CULTURE 627-651 (2000); Arjun Appadurai, Deep Democracy: Urban Governmentality and the Horizon of Politics, 13(2) E NVIRONMENT AND URBANISM 23-44 (2001). 117 See , for example, P ARTHA CHATTERJEE, supra note 38; P ARTHA CHATTERJEE, supra note 8. 118 See , for example, Madhu Purnima Kishwar, The Making and Unmaking of a Model Market for Street Vendors, Part I and Part II, http://www.manushi.in/articles.php?articleId= 1586&ptype=campaigns#.VbJIRfmFHBw; Madhu Purnima Kishwar, Urban Informal Sector: The Need for a Bottom-up Agenda of Economic Reforms – Case Studies of Cycle Rickshaws and Street Vendors in Delhi, in MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, INDIA: URBAN POVERTY REPORT (2009), M ADHU PURNIMA KISHWAR, DEEPENING DEMOCRACY – CHALLENGES OF GOVERNANCE AND GLOBALIZATION IN INDIA (2005), and relevant articles in the Manushi journal. 119 See , for example, SHARIT K. BHOWMIK & DEBDULAL SAHA, STREET VENDING IN TEN CITIES IN INDIA (June 2012); Debdulal Saha, Street Vendors in Mumbai: An Exploration within the Framework of Decent Work, (2012) (unpublished Ph.D. dissertation, Tata Institute of Social Sciences, Mumbai); SHARIT K. BHOWMIK & DEBDULAL SAHA, FINANCIAL ACCESSIBILITY OF THE STREET VENDORS IN INDIA: CASES OF INCLUSION AND EXCLUSION (2011); S TREET VENDORS IN THE GLOBAL URBAN ECONOMY, supra note 101; Sharit K Bhowmik, Street Vendors in Asia: A Review, 40 E CONOMIC & POLITICAL WEEKLY 2256-2264 (May-June 2005). 120 See , for example, A NANYA ROY, CITY REQUIEM, CALCUTTA: GENDER AND THE POLITICS OF POVERTY (2003); Roy, supra note 67. 121 See , for example, Rityajyoti Bandyopadhyay, The Street Vendors Act and Pedestrianism in India: A Reading of the Archival Politics of the Calcutta Hawker Sangram Committe e, in, STREET
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The context of street vending in Indian cities has been seriously explored in the work(s) of only a handful of scholars, most notably, Arjun Appadurai, 116 Partha Chatterjee, 117 Madhu Purnima Kishwar, 118 Sharit K. Bhowmik and Debdulal Saha,119 Ananya Roy, 120 Ritajyoti Bandyopadhyay, 121 Jonathan Shapiro Anjaria,122 and Amlanjyoti Goswami. 123 Despite a couple of multi-city surveys over the past few decades, 124 reliable national level empirical data on street vending in India has not been easily accessible in the academic and policy literature. Most estimates (including the 2013 parliamentary Standing Committee Report on the Street Vending Bill of 2012) refer back to a National Commission for Enterprises
122
123 124
125
VENDING IN THE NEOLIBERAL CITY: A GLOBAL PERSPECTIVE ON THE PRACTICES AND POLICIES OF A MARGINALIZED ECONOMY, supranote 101; Rityajyoti Bandyopadhyay, The Hawkers’ Question in Postcolonial Calcutta: Histories and Possibilities (2014) (unpublished manuscript); Ritajyoti Bandyopadhyay, TV Prathamesh & Puja Guha, Zoning crossroads: a critique, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 62, http://www.india-seminar.com/2012/ 636/636_ritajyoti_et_all.htm; Ritajyoti Bandyopadhyay, Politics of archiving: hawkers and pavement dwellers in Calcutta, 35(3) DIALECTICAL ANTHROPOLOGY 295-316 (September 2011); Ritajyoti Bandyopadhyay, Hawkers’ Movement in Kolkata, 1975-2007 , 44 ECONOMIC & POLITICAL WEEKLY 116-119 (April 25, 2009). See , for example, Jonathan Shapiro Anjaria, How we define the street , INDIAN EXPRESS, 10 March, 2014; Jonathan Shapiro Anjaria & Alka Anjaria, The fractured spaces of entrepreneurialism in post-liberalization India, inENTERPRISE CULTURE IN NEOLIBERAL INDIA: STUDIES IN YOUTH, C LASS, WORK AND MEDIA 190-205 (Nandini Gooptu ed., 2013); Jonathan Shapiro Anjaria, Is there a culture of the Indian Street , inSTREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 59, http://www.india-seminar.com/2012/636/636_jonathan_s_anjaria.htm; U RBAN NAVIGATIONS: POLITICS, SPACE AND THE CITY IN SOUTH ASIA (Jonathan Shapiro Anjaria & Colin McFarlane eds., 2011); Jonathan Shapiro Anjaria, Guardians of the Bourgeois City: Citizenship, Public Space, and Middle-Class Activism in Mumbai, 8(4) C ITY & COMMUNITY 391-406 (2009); Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL WEEKLY 2140-2146 (May 27, 2006). See Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality of Vending, in THE CITY IN URBAN POVERTY 183-204 (Charlotte Lemanski and Colin Marx eds., 2015). See , for example, B HOWMIK & SAHA, S TREET V ENDING IN T EN C ITIES IN I NDIA, supra note 119; SHARIT K. BHOWMIK, HAWKERS IN THE URBAN INFORMAL SECTOR: A STUDY OF STREET VENDING IN SEVEN CITIES OF INDIA (2000). A useful repository of survey resources, articles and papers on street vending in India can be accessed at the Strengthen and Harmonize Research and Action on Migration (SHRAM) website, http://www.shram.org/SearchPage.php?search_field=street+ vendor&x=0&y=0. NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANIZED SECTOR, NATIONAL POLICY ON URBAN STREET VENDORS: REPORT AND R ECOMMENDATIONS 2 (May 2006); See also LOK SABHA SECRETARIATSTANDING COMMITTEE ON URBAN DEVELOPMENT (2012-13), T WENTY THIRD REPORT ON THE STREET VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING ) BILL, 2012 (MARCH 2013).
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in the Unorganised Sector (NCEUS) 2006 Report according to which “the total number of street vendors (1999-2000) would range from 30 to 43 lakh both in rural and urban areas. For urban areas alone, it would range between 17 to 25 lakh.”125 While methodologies for statistical estimates of the informal sector are far from universally agreed upon, 126 the relevant findings of two recent studies (analysing statistical data on informality in India) bear mentioning. Martha Chen and G. Raveendran point out that in 2011-12 street vending in India represented 4 per cent of the total urban employment and 5 per cent of the informal urban employment with the percentage of men who were street vendors (5%) being 1.7 times higher than that of the women (3%). 127 Further, Chen and Raveendran point out that while there was an increase in domestic work, home-based work, and waste picking among all male and female workers (both total urban and informal urban) from 1999-2000 to 2011-12, there was a decrease in street vending among all categories during the same period (for example, the total share of street vendors as a percentage of the total urban workers declined from 6 per cent in 1999-2000 to 4 per cent in 2011-12). 128 Analysing unit level data from the National Sample Survey Office (NSSO) 66th round on employment and unemployment (2009-10), Sobin George, lists the total number of street vendors and related workers in India as 10747755 (1.05% of the total population, 0.69% of the rural population, and 2.01% of the urban population) and points out that 53 per cent of these vendors are in urban areas. 129 Further, looking at worker population ratios (by religion and by caste/ethnicity social groups) in selected major cities, Sobin concludes that “[i]n most of the major cities, except Chennai, Kolkata and Ludhiana, it is Muslims who are mostly engaged in street vending activities….Social group composition of street vendors in major Indian cities shows that it is mostly SCs and OBCs who are engaged in such occupations.” 130 The inferences (about street 126 See generally, Joann Vanek et al, Statistics on the Informal Economy: Definitions, Regional Estimates and Challenges, WIEGO WORKING PAPER (STATISTICS ) NO. 2 (April 2014). 127 See Martha Alter Chen and G. Raveendran, Urban Employment in India: Recent Trends and Patterns, WIEGO W ORKING PAPER NO. 7, at 11 (November 2011, updated 2014). 128 Id., at 11-12. 129 Sobin George, New Forms of Retail Trade and the Trajectories of Urban Exclusion in India: A Review, Working PAPER 313, INSTITUTE FOR SOCIAL AND ECONOMIC CHANGE 13, 15 (2014). 130 Id.
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vending, spatial justice, urban modernity, etc. in India and in cities in India) that may be drawn from these numbers certainly deserve careful future attention. While every city, and in fact every street, in India, has its own spatiality, its own temporality, its own possibilities of interstitial justice, it is worthwhile here to briefly (and impressionistically) attempt to sketch the world of urban street vending and the urban street vendor in India. Goswami, for example, points out that the “every vendor possesses a keen awareness of the various uses and users of the street. The vendor depends on the bus traveller, the pedestrian, the office goer, the lounger.”131 As regards the built form of the street, Geetam Tiwari has pointed out that the road environment design and nature of road traffic in Indian cities (including pedestrians, bicycles, animal-driven carts, non-motorised rickshaws, etc.) imply both that street vendors are inevitable and that such street trade serves a very real and otherwise largely un-fulfilled demand. 132 The survey (coordinated by Sharit K. Bhowmik and Debdulal Saha) conducted in ten cities across India (Bhubaneswar, Bengaluru, Delhi, Hyderabad, Imphal, Indore, Jaipur, Lucknow, Mumbai and Patna) provides some useful details about the working and living conditions of street vendors, the views of consumers, and the spatio-temporality of urban street vending in India. 133 Summarizing their findings across the 10 cities, Bhowmik and Saha point out that: street vendors are overwhelmingly male with 131 Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality of Vending, supra note 123. 132 Geetam Tiwari, Encroachers or service providers? , in STREET VENDORS: A SYMPOSIUM ON RECONCILING PEOPLE’S L IVELIHOOD AND U RBAN G OVERNANCE, 491 S EMINAR (July 2000), http://www.indiaseminar.com/2000/491/491%20geetam%20tiwari.htm. 133 See BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119. See also, Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 E CONOMIC & POLITICAL WEEKLY 2140-2146 (May 27, 2006); Rityajyoti Bandyopadhyay, The Hawkers’ Question in Postcolonial Calcutta: Histories and Possibilities (2014) (unpublished manuscript); E NVIRONMENT S UPPORT GROUP, A BRIEF STUDY OF STREET VENDORS IN THE CITY OF BENGALURU (October 2010); C.N. Ray & Assem Mishra, Vendors and Informal Sector – A Case-Study of Street Vendors of Surat City, (November 2011); D ARSHINI MAHADEVIA, SUCHITA VYAS & ASEEM MISHRA, INFORMAL ECONOMY MONITORING STUDY: STREET VENDORS IN A HMEDABAD , INDIA (2014); Saha, supra note 119; Joseph Kweku Assan & Thomas Chambers, India’s street vendors and the struggle to sustain their livelihoods and informal enterprises: Unionization, political action and sustainable development , 3(11) INTERNATIONAL JOURNAL OF DEVELOPMENT AND SUSTAINABILITY 2140-2161 (2014); Strengthen and Harmonize Research and Action on Migration (SHRAM) website, supra note 127. For earlier surveys, see BHOWMIK, supra note 124; SNDT W OMEN’S UNIVERSITY AND ILO, STUDY OF STREET VENDORS IN MUMBAI (1999); RN S HARMA ET AL, CENSUS OF HAWKERS ON BMC LANDS (1998).
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the sole exception of Imphal where an overwhelming majority (88.5%) of street vendors are female; a majority of street vendors are married; the bulk of the street vendors in all the ten cities were in the productive age group of 25-55 years; a large number of vendors (especially in cities such as Delhi, Patna, Hyderabad and Imphal) are illiterate; Other Backward Classes (OBCs) are the single largest castelinked group though some cities such as Jaipur, Indore and Hyderabad have a high proportion of Scheduled Caste (SC) vendors; an overwhelming majority of vendors (over 80%) belong to the Hindu religion; while stationary vendors who occupy a patch on the pavement may have lower sales than mobile vendors with push carts, they are better off than mobile women vendors who carry their wares on baskets on their heads; in most cities (Jaipur being an exception), stationary vendors outnumber the mobile vendors; non-perishable items sold by vendors include clothes, metal utensils, plastic goods, leather goods, electronics, etc. whereas the perishable goods sold include vegetables, fruits, flowers, fish, and cooked food; many vendors prefer selling perishable food items because the prices of these items are less compared to non-perishable items such as household and electronic goods; some cities (for example, Bangalore, Delhi, Imphal, Indore) have more vendors selling perishable items whereas other cities (Bhubaneshwar, Hyderabad, Jaipur, Lucknow, Mumbai, and Patna) have a greater proportion of non-perishable items; vegetables are largely sold by female vendors and female vendors in general have lower capital for investing in their trade; fruit vendors are in a better position than vegetable vendors due to the cost and profit-margins involved with fruits; a majority of vendors stay within five kilometres of their workplace; while most vendors walk to their place of work in most cities, in Bhubaneshwar a majority of vendors (48%) bicycle to their place of work and in Imphal a majority of (women) vendors take a bus (42%) or auto-rickshaw (32%) to their place of work; storage facilities are a major problem in most cities, and unsold or new goods are stored at home, at the workplace, or at a shop/godown where rent is paid, with Bhubaneshwar being the only exception where 93.5% of the vendors store their goods at the workplace; a majority of vendors dip into their own savings to finance their business; rates charged by money lenders in all the cities varied between 300% to 1000% per annum and in most cases the money lender expected to be repaid every month; most vendors work between eight to twelve hours a day; a large section of vendors live in one room tenements and in 134 See BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119, at 12-24.
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several cities (Bengaluru, Delhi, Hyderabad, Jaipur, Lucknow, and Patna) a majority of vendors live in temporary structures (usually slums/shanties built on public land); a majority of vendors in all the cities paid bribes to the authorities on a regular basis, and bribes usually ranged from Rs. 2 to Rs. 100 per day. 134 In general, street vendors earn very meagre wages (some earlier estimates relying on the NCEUS street vending report of 2006 were as low as Rs. 40 to Rs. 80 per day) – therefore, it would be accurate to generalise that most street vendors are desperately poor relative to their counterparts in the formal segment of the economy.135 Estimates suggest that women constitute 30% of the total population of vendors in India and that they earn significantly lower incomes than their male counterparts.136 Most studies indicate that a majority of street vendors in Indian cities are unlicensed and therefore officially treated as illegal. 137 Correspondingly, most studies note that a significant proportion of street vendor earnings (estimates suggest between 20% - 30%) are taken as bribes by the authorities. While nationallevel data is not available, one recent report suggests that “the extortion racket must be worth at least Rs. 1,000 crore in Mumbai and Rs. 600 crore in Delhi.” 138 Despite some positive efforts in cities like Bhubaneshwar and Imphal, street vendors continue to face often insurmountable difficulties in procuring a license from corrupt, defunct or insensitive state authorities. Street vendors also face a constant threat of over-enthusiastically enforced, outdated regulations that threaten their livelihood, dignity, profitability, etc. or position them away from the natural markets where they would otherwise tend to be positioned. 139 135 See LOK SABHA SECRETARIAT, supra note 125, at 1-2. 136 Bhowmik, supra note 101, at 27; L OK SABHA SECRETARIAT, supra note 125, at 1, 2. 137 In Mumbai, the municipality had not issued a new street vending license from 1978 to 2000, as a result of which nearly all of the then 200,000 to 300,000 street vendors in Mumbai were illegal. See Sharit K Bhowmik, A Raw Deal? , in STREET VENDORS: A SYMPOSIUM ON RECONCILING PEOPLE’S LIVELIHOOD AND URBAN GOVERNANCE, supra note 132, http://www.india-seminar.com/2000/ 491/491%20s.k.%20bhowmik.htm. 138 See G. Sampath, Living on the City’s sidelines, T HE HINDU , (June 18, 2015), http:// www.thehindu.com/opinion/op-ed/living-on-the-citys-sidelines/article7326413.ece. Reporting the findings of fieldwork in different parts of Ahmedabad in 2011-2012, one study by Mahadevia et al. found that most vendors in Ahmedabad were losing a significant amount of their earnings in bribes. See Darshini Mahadevia et al, Street Vendors in Ahmedabad: Status, Contributions and Challenges, WORKING PAPER NO. 20, C ENTER FOR URBAN EQUITY, CEPT UNIVERSITY 35, 36 (2013). 139 See AS Abhigna, Different Ideas for Licensing Street Vendors – Especially in Old Indian Cities, CCS WORKING PAPER NO. 235, (2010); Shalini Sinha & Sally Roever, India’s National Policy on Urban Street Vendors, Urban POLICIES BRIEFING N OTE. 4, WIEGO (April 2011).
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‘ Wizards at Making a Virtue of Necessity’: Street Vendors in India
Bolstered by the sobering reality of such survey data, G. Sampath (the Social Affairs editor of the Hindu newspaper) recently forcefully argued for a recognition of the enormous contribution that street vendors make to the economy while pushing for inclusive vendor-friendly cities in India: On the one hand, they subsidise the urban poor, who cannot afford to shop from malls or supermarkets for their necessities. On the other, they are a cheap distribution network for small and micro-enterprises in the informal sector that make toys, clothes, utensils, and other household goods from moulded plastic at a low cost. These small industries cannot afford to sell their goods via conventional retail outlets. But they employ a large number of workers. If we take the number of people employed in these micro-industries, and add them to the total number of street vendors, it becomes clear that hawking sustains a great deal of employment…… Do we want a city of incomebased ghettos where the lower income groups carry on their economic activity out of sight of the higher income groups? Or do we want our neighbourhoods to be spaces for social and communal life, where people from different socio-economic classes get to interact, transact, form social bonds, and together create a rich tapestry of urban living? 140 A rich tapestry of urban living in India’s contested, complicated and rhizomic urban centres is easier said than done however – just as one ought to carefully avoid being a guardian of the bourgeois city who undermines the radically heterogeneous forms of democratic political participation the city offers, one also ought to carefully avoid being hyper-egalitarian or overly romantic about street life and the background possibilities of urban street order in India. 141 A sensible approach to street order and to street vending will require the considered spatialized articulation of the right to the city (for all concerned) in each and every street under consideration. A more realistic appraisal of the background possibilities of urban street order in India will require a careful appreciation of the fuller context 140 Sampath, supra note 138. 141 See Jonathan Shapiro Anjaria, Guardians of the Bourgeois City: Citizenship, Public Space, and Middle-Class Activism in Mumbai, 8(4) C ITY & C OMMUNITY 391-406 (2009), and Robert C. Ellickson, supra note 72.
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of spatial justice implicated within the regulation of urban street vending. For example, Arjun Appadurai and Partha Chatterjee, in two classic texts that look at distinct discursive spaces, give us an inkling of what is at stake in imagining a genuine street order that can generate the sufficient and necessary conditions for a rich tapestry of urban living in modern India. 142 Can we hope that promoting street vending in Indian cities will resolve the problems of a homeless beggar child who begs automobile travellers to buy stickers or ballpoint pens or cheap toys at the many traffic signals across India’s cities? Can we hope that promoting street vending in India will ameliorate or liberate the transgendered beggar/entertainer/sex-vendor on Indian streets? Will the promotion of street vending increase or decrease slums and other illegal and/or informal urban settlements in India? Will the promotion of urban street vending promote unmanageable migration to cities by former farmingcommunities? Will the promotion of street vending truly empower poor urban entrepreneurs or will it serve the interests of well-organised urban mafias that exploit street vendors and beggars in India? Will street vending make our cities more plural and more liveable or will it result in a large number of people withdrawing from public spaces to private gated communities? Is a particular street vendor vend or a member of a marginalized community desperately in need of protection or is she a calculating entrepreneur unfairly cashing in on state largesse or is she a criminal body and encroacher on a spatio-normativised street? Does justice with regard to street vending involve in volve the politics of recognition or redistribution or redemption or some combination thereof? These questions do not have easy answers, and I will not belabour the point here, except to say that urban street vending in India Indi a can be fully encouraged and be legitimately entrepreneurial only when issues of beggary, of homelessness, or rural dispossession, of urban criminality, of induced and involuntary migration, of social exclusion, of gender and sexuality inequality, of neoliberal reterritorialization, and of fetishized consumption, are also embraced within the same frame of analysis. 143 142 See Partha Chatterjee, Democracy and Economic Transformation Transforma tion in India, India, 43 E CONOMIC & POLITICAL W EEKLY 53-62 (April 19, 2008); Appadurai, Spectral Housing and Urban Cleansing: Notes on Millenial Mumbai, Mumbai, supra note 116. 143 For one study that attempt attemptss to see the urban issue issue in a multi-dimensi multi-dimensional onal perspective, perspective, see Mahmud, supra supr a note 32. See also, also, Usha Ramanathan, supra note 39; Usha Ramanathan, Ostensible Poverty, Beggary and the Law, Law, 43 E CONOMIC & POLITICAL WEEKLY 33-44 (November 1, 2008).
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‘ Wizards Wizards at Making a Virtue of Necessity’: Nec essity’: Street Vendors in India
Appadurai’s description of street life in spectral millennial Mumbai disabuses us of any easy or immediate solution to the issue of urban street vending in i n modern India: Much could be said about Indian street life and the life of Bombay’s streets in respect to housing……Some actually live on pavements, and others sleep in the gray spaces between buildings and streets. Yet others live on roofs and on parapets, above garages, and in a variety of interstitial spaces that are not fully controlled by either landlords or the state.……. At the same time, small commercial enterprises sprout s prout on every possible spot in every possible possi ble street, attached to buildings, to telephone poles, to electricity switching houses, or to anything else that does not move. These petty enterprises are by nature shelters, so many commercial stalls are, de facto, homes on the street for one or more people. The same is true of the kitchens of restaurants, parts of office buildings—indeed, any structure where a poor person has the smallest legitimate right to stay in or near a habitable structure, especially one that has water or a roof. Electricity and heat are rare luxuries, of course……. From the point of view of street life, consumption is fuelled by the explosive growth in small-scale hucksters, vendors, and retailers that have flooded Mumbai’s pavements, rendering them almost impassable. Many of these vendor dominated streets peddle items having to do with the fantasy of a global, middleclass consumer, with the truly smuggled, the imitated pirates, and the homegrown simulacrum all joyously mixed with each other: bras and juicers, lamps and window shades, underwear and cutting knives, sandwich makers and clothespins, decorative kitsch and T-shirts, women’s dressing gowns and men’s Levis. There seems to be no real annoyance with these vendors, despite the fact that they th ey put pedestrians in the awkward position of either walking on the road (nudged by cars that could kill them), falling into the sewage grates just next to the curb (which are sometimes open), or picking their way through carpets of T-shirts, sneakers, and drinking glasses……. These public dramas of consumption revolving around the accoutrements of domesticity constitute an investment in the equipping of houses that may be small and overcrowded, where 46
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individual space and rights may be highly restricted, and where much in the way of modern amenities may be limited or absent. These humble objects of domestic life are thus proleptic tools of a domesticity without houses, houseless houseles s domesticity. In the purchase and assemblage of these objects, which imply a domestic plenitude that is surely exaggerated, Bombay’s working poor and nonprofessional service classes produce their own spectral domesticity, which in its sensuous, cash-based, pleasurable social reality recognizes the shrinking horizon of the actual houses in which these objects might have a predictable life. Of course, all modern shopping (in Mumbai and beyond) has the anticipatory, the imagined, the auratic, and the possessive about its ethos. But street shopping in Mumbai, like public sleeping, is a form of claim to housing that no one can contest or subvert in the city of cash. This is where the specters of eviction meet the agencies of consumption.144 In the concluding part of this essay, I offer a brief account of the context and sources of street vending law in India while noting its possibilities for interstitial spatial justice in the context of India’s unique modernity. Conceptualising street vending in India [for development planning, public law, and regulatory enforcement] is a truly formidable challenge. For starters, the foundational parameters implicated in Indian law and governance ‘getting it right’ include a messy federal constitutional order, a post-colonial society not fully clear on how to interpret its own historical narrative and place in modernity, fuzzy property law regimes, a history of notoriously corrupt and inefficient state functionaries, and a political consciousness that resists easy identification with rights-centric liberal European vocabularies. vocabularies. Second, street trade involves deeply contested and highly contextual considerations of o f health, novelty value, variety of goods, aesthetic impact, economic impact, affordability, convenience, locational value, religious strictures, caste norms, traditional appropriateness, positive and negative externalities including impact on public order, street congestion and crime, impact on migration and population, transport complementarity, impact on tourism, enterprise capacity, employment generation, relevant spatial preferences and 144 Appa Appadu dura rai,i, Spectral Housing and Urban Cleansing: Notes on Millenial Mumbai, Mumbai, supra note 116, at 636-643.
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limitations, heritage conservation, sustainability, etc. Third, while reliable statistics are particularly hard to come by as indicated earlier in this essay, street vendors are estimated at around 2% to 2.5% of the population of several major Indian cities; estimates suggest a staggeringly large 10 million or more street vendors in India. Policy prescriptions and laws (in the context of their application in urban India) need to effectively respond to the reality of a large urban street vending sector, in rapidly-expanding, high-population, economically heterogeneous, urban centres with site-specific spatial organisation, transport networks and cultural/ aesthetic geographies, and where street vending has been long prevalent and is only likely to increase in frequency, distribution and scale of operation. Fourth, any nuanced outlook also needs to take note of the rural, local, national and international assemblages that city street trades in India are implicated within. In the limited writing available on street vending law in India, Amlanjyoti Goswami’s recent book-chapter Where the Street Has No Name: Reflections on the Legality and Spatiality of Vending is a rare exception that focuses on a spatial and thoroughly interstitial analysis. Invoking Deleuze and Guattari, Goswami analyses street vending in Dakshinapuri, New Delhi and street vending law in India, and nicely draws out the linkages between street vending law, space, and time: Street vending may be a smooth space, mobile, itinerant, irregular. It may be easier for the state to striate that space, if vendors represent a marginalised political constituency, only eventually reliant on a distant Judiciary. Boundary marking is the tool law uses to regulate space. If street vending is perceived as smooth space, tactile and haptic, the state striates the space with its rules. At the same time, transformation of that smooth space into striated space is never complete. The state uses legality to regulate vending through various instruments (judicial rulings, laws, licensing, police and municipal demarcations of territory), while vending, being ‘nomadic’ in orientation, would continue to negotiate around space in between. These spaces would be grey areas in the laws; between vending and non-vending zones; interpretations regarding ‘natural markets’; periods before and 145 Amlanjyoti Goswami, supra note 123.
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between licenses; spaces where a temporal restriction is fulfilled if not a spatial one; changing, visible and invisible boundaries; the mobile vendor weaving in and out of zones and meanings around similar navigations. 145 Street vending law represents an archive, a register, a frontier, and an unfinished manuscript for spatial justice in India. The history of the evolution of street vending law in India and the larger political histories that animated this evolution require sustained study. The final form that urban street vending law takes will alert us to the revolutionary possibilities or lack thereof of the right to the city discourse. The story of street vending law in India tells us about the stories of the urban subaltern in Indian cities - the story of the rural migrant, the laid-off mill hand, the homeless and the illiterate and the abandoned, the entrepreneurial, the organized street gangs, the flâneurs, the ramblers, the street walkers, and so on. It also tells us about the significance of spatial justice in India’s constitutional post-colonial order – how fundamental rights, development plans, municipal land use regulations, and government schemes (could) come together to promote or suppress the flourishing of the good life for all. In the following paragraphs I offer a brief overview of the sources and development of street vending law in India before concluding with a synoptic characterisation of the interstice and the new 2014 national street vending law. The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2014 was passed by the Rajya Sabha on 19 th February 2014, received presidential assent on 4th March 2014, and came into force as the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 on 1 st May, 2014. The first version of a model Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill was prepared by the Government of India and approved by the Union Cabinet on 23 rd February, 2009 and was circulated to all the State Governments.146 Prior to the national law enacted in 2014, the applicable law relating to street vending in India had to be cobbled together from a disparate array of sources: some state-level laws and policies directly dealing with street vending; the national urban street vending policy of 2009 and the older national street vending policy of 2004; a large number of municipal regulations, state-level laws, and national-level laws that limited or indirectly regulated street vending; 146 LOK SABHA SECRETARIAT, supra note 125, at 2.
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relevant international obligations that promoted the practice of street vending or supported the rights of street vendors; and a long list of decisions on street vending from India’s Supreme Court and from various High Courts. National schemes including the Jawaharlal Nehru National Urban Renewal Mission (JNNURM), the Rajiv Awas Yojana (RAY), the Rajiv Rinn Yojana (RRN), the National Urban Livelihoods Mission (NULM), and the recently launched Housing for All (Urban) Mission, all have a bearing on how urban governance addresses street vending. The NULM Mission Document, for example, explicitly focuses on urban street vending ‘as a measure of urban poverty alleviation.’ 147 Each State in India also has a wide array of State-level schemes, which along with a few city-level schemes, adds to the bewildering interlegality and jurisdictional overlaps that characterize the governmentalization of street vending in India. With regard to state-level laws and policies, as of March 2013, five states – Jharkhand, Arunachal Pradesh, Mizoram, Madhya Pradesh and Rajasthan - had already enacted State level legislation on street vending whereas one other state – Chhattisgarh – had street vending specific Bye-laws under the relevant municipal Act. 148 As of June 2013, at least one other state (Orissa) had a specific urban street vendors policy document, and at least one other state (Andhra Pradesh) had a publicly available draft bill on street vending. 149 With regard to national policies, 147 “Street vendors constitute an important segment of the urban population at the bottom of the pyramid. Street vending provides a source of self-employment, and thus acts as a measure of urban poverty alleviation without major Government intervention. They have a prominent place in the urban supply chain and are an integral part of the economic growth process within urban areas. NULM would aim at facilitating access to suitable spaces, institutional credit, social security and skills to the urban street vendors for accessing emerging market opportunities…….This component aims at skilling of street vendors, support micro-enterprise development, credit enablement and pro-vending urban planning along with supporting social security options for vulnerable groups such as women, SCs/STs and minorities. Up to 5 percent of the total NULM budget will be spent on this component.” See GOVERNMENT OF INDIA: MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, NATIONAL URBAN LIVELIHOODS MISSION : MISSION DOCUMENT 7, 820 (2013). 148 LOK SABHA SECRETARIAT, supra note 125, at 3. 149 Legislative Brief – The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012, PRS LEGISLATIVE RESEARCH, 6 (2013), which provides summary details (in appendix) about the Odisha Urban Street Vendors Policy 2012 and the Draft Andhra Pradesh Street Vendors’ (Protection of Livelihood and Regulation of Street Vending) Bill 2011. 150 See MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, NATIONAL POLICY ON URBAN STREET VENDORS 2009 (2009); M INISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, NATIONAL POLICY ON URBAN STREET VENDORS 2004 (2004).
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the National Policy on Urban Street Vendors, 2009 revised and updated the older 2004 National Policy on Urban Street Vendors. 150 While both policy documents recognised the importance of natural markets, and explicitly stated that street vending provided meaningful employment and valuable products and services to a wide range of persons, the 2009 policy documents marked several advancements over the older 2004 policy. While the 2004 policy considered spatial planning norms strictly in terms of vending zones and non-vending zones, the 2009 policy advocated free-vending zones, restricted-vending zones, and no-vending zones. Second, the 2009 policy clarified the three different types of street vendors (stationary, peripatetic, and mobile), and provided detail and clarity as regards policy imperatives pertaining to peripatetic and mobile vendors. Third, the 2009 policy introduced clarity on the principles for determining quantitative norms for street vendors through the introduction of “holding capacity” terminology. Fourth, while the 2004 policy was unclear on licensing and its relation to vendor registration, the 2009 policy clarified that licensing pertains to site/space allotment for stationary vendors whereas registration applies to all kinds of vendors. Fifth, the 2009 policy clarified the provisions in the 2004 policy as regards the composition, duties and functions of the Town Vending Committees. Finally, the 2009 policy clarified the uncertainty relating to ‘planning authority’ terminology in the 2004 policy through the use of the defined term ‘local authorities’. Apart from these changes, the 2009 policy improved upon the 2004 policy on a number of related other areas: provision of civic facilities, registration procedures, registration fees, collection of revenue, eviction, relocation, confiscation, organisation of vendors, participative processes, public health and hygiene, selfregulation, credit and insurance, rehabilitation of child vendors, education and skill development, housing, social security, monitoring and review, dispute settlement, and capacity building. Despite these detailed provisions, the policy pertaining to urban street vending was rarely followed in spirit and many governmental authorities remained unaware of their basic obligations as required by these policy prescriptions. 151 Legal restrictions on the right to street vending are to be found in a wide variety 151 For useful overviews, see Sinha & Roever, supra note 139; Cheryl Deutsch, Implementing the National Policy on Urban Street Vendors: A State-by-State Status Report , YUVA (May 2009); Final Report of the National Workshop on Debating the National Policy on Urban Street Vendors: A Trans-City Interrogation, URBAN RESEARCH AND POLICY PROGRAMME, NATIONAL INSTITUTE OF ADVANCED STUDIES , BANGALORE, (August 13, 2012).
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of municipal, state and national laws and schemes (including police laws, health laws, food safety laws, public order laws, town planning laws, traffic laws, etc.) – the legal positions varies from municipality to municipality, city to city, and state to state.152 Anjaria, for example, points out how sections 312, 313, and 314, in particular, of the Mumbai Municipal Corporation Act, 1888 were relied upon by Mumbai’s municipal corporation in response to public interest litigations challenging the eviction of hawkers and pavement dwellers in Mumbai in the early 1980s.153 Section 312 of the Mumbai Municipal Corporation Act, 1888 prohibits structures or fixtures which cause obstruction in the streets, Section 313 prohibits (except with written permission of the municipal Commissioner) the placing or depositing on any street of any ‘stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or an encroachment thereon’, and Section 313A and Section 313B prohibit the sale of any article or service in any public place or in any public street without a license granted by the Commissioner. Further Section 314 of the Act enables the Commissioner to remove without notice anything erected, deposited, or hawked in contravention of Sections 312 and 313, and Section 471 enables the Commissioner to fine anyone who contravenes these sections. Many states and cities across India have laws that are similar to the Mumbai municipal legislation – see, for example, Sections 287, 288A, 288B, 288C, and 288D of the Karnataka Municipal Corporation Act, 1976. Further, police laws in most cities and states (see for example, Sections 102 and 117 of the Bombay Police Act, 1951 or Section 92 of the Karnataka Police Act, 1963) empower the police to fine unlicensed street vendors. Finally, Section 283 of the national-level Indian Penal Code, 1860 criminalizes ‘danger, obstruction or injury to any person in any public way or public line of navigation’ and Section 201 of the national-level Motor Vehicles Act, 1988 provides for a penalty for anyone who ‘keeps a disabled vehicle on any public place, in such a manner, so as to cause impediment to the free flow of traffic’. While many of these laws continue 152 For an overview of some of the municipal, city and state level laws applicable to street vending, see NASVI, S TREET VENDORS: HANDBOOK ON LAW, P OLICY AND JUDGMENTS (2012); Darshini Mahadevia, Suchita Vyas, Alison Brown & Michal Lyons, Law, Rights and Regulation for Street Vending in Globalising Ahmedabad, W ORKING PAPER 1: L AW, R IGHTS AND R EGULATION IN THE INFORMAL ECONOMY ESRC-DFID RESEARCH P ROJECT (July 2012); B HOWMIK, supra note 124; See also, Sinha & Roever, supra note 139. 153 Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 E CONOMIC & POLITICAL WEEKLY 2140-2146 (May 27, 2006), at 2140.
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to exist even after the passage of the national street vending legislation in 2014, the exact scope of their continued operation remains unclear and therefore requires careful analysis and elaboration. It should also be noted that India is a party to several international agreements relevant to the regulation of street vending including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the International Convention on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and over forty two International Labour Organisation (ILO) Conventions that (should) influence executive and judicial interpretation and have an enforceable effect when there is a lacuna in the domestic law on the point. 154 The enactment of the national legislation in 2014 followed a long series of judicial pronouncements. The heightened momentum behind a national street vendor legislation in recent times traces back to October 2010 when a Division bench of the Supreme Court of India (Justice G.S. Singhvi and Justice A.K. Ganguly) in Gainda Ram v. MCD reiterated that the right to street vending was a fundamental right protected under Article 19(1)(g) of the Constitution of India. 155 Significantly, the Supreme Court in Gainda Ram v. MCD also held that this right could be reasonably restricted only through a law (and not through governmental/municipal schemes), and therefore mandated that legislation be enacted by the appropriate Government by 30th June, 2011.156 While a legislation was not enacted by 30 th June, 2011, a Division Bench of the Supreme Court (Justice G.S. Singhvi and 154 For greater detail on international human rights norms relevant to protection of street vendors in India, see Working Paper – Developing National Street Vendor Legislation in India: A Comparative Study of Street Vending Regulation, TRANSNATIONAL DEVELOPMENT CLINIC – JEROME N. FRANK LEGAL SERVICES ORGANIZATION -YALE LAW SCHOOL, 11, 12 (January 2011). 155 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraph 77. The fundamental right of street vendors to carry on business on public streets under Article 19(1)(g) of the Constitution of India had been articulated by the Supreme Court in earlier decisions including Saudan Singh v. NDMC, (1992) 2 SCC 458; Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155; Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 545; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545. 156 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraphs 77, 78.
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Justice V. Gopala Gowda) in 2013 once again considered the matter of street vending in India in Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, and directed that the National Policy on Urban Street Vendors, 2009 should be implemented throughout the country. This 2013 judgment excerpts the salient provisions from the 2009 policy, issues a series of remarkable directions for the time-bound implementation of the policy (including a request to the Ch ief Justices of the High Courts ‘to nominate a Bench to deal with the cases filed for implementation of the 2009 Policy and disputes arising out of its implementation’), and clarifies that the 2009 policy and the directions contained in the judgment shall apply to all the municipal areas in the country and ‘shall remain operative till an appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force’. 157 In so doing, the Supreme Court also vacated the somewhat oppressive 15 conditions and restrictions on stationary street vendors in Mumbai that had been articulated in the 2003 Maharashtra Ekta Hawkers Union judgment (many of these conditions trace back to Mumbai Municipal Corporation’s scheme for the licensing of hawkers initially proposed on 6 May, 1983).158 These 15 conditions and restrictions that had been reiterated by the Supreme Court in 2003 included: 1) spatial restrictions on foothpath vending (non-obstruction of an area of at least 1metre x 1metre on all foothpaths where hawking exists, hawking permitted only on one side of the road); 2) prohibition on stalls, tables, stands, handcarts, and any other such things and structures; 3) prohibition on hawking within 100 metres from any place of worship, holy shrine, educational institutions and hospitals, or within 150 metres from any municipal or other markets or from any railway station, or on footbridges and overbridges; 4) prohibition on hawkers creating any noise or playing any instrument or music for attracting the public or the customers; 5) prohibition on the cooking of food; 6) limitation of hawking to between 7.00 a.m. and 10.00 p.m.; 7) reiteration that hawking was to be on the basis of a fixed fee to be prescribed 157 Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, (2014) 1 SCC 490, at paragraphs 16, 17. 158 This scheme was initially drafted during the pendency of the hawkers’ first unsuccessful challenge to the constitutionality of the provisions of §§ 313, 313-A, 314(3) and 497 of the Mumbai Municipal Corporation Act, 1888. See Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 545.
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by the municipal corporation; 8) requirement that hawkers would extend full cooperation to the municipal conservancy staff for cleaning the streets and footpaths and also to the other municipal staff for carrying on any municipal work; 9) prohibition of hawking on streets less than 8 metres in width; 10) requirement that the municipal corporation would grant photo-licenses which are to be displayed by hawkers at all times; 11) stipulation that no more than 1 person in a family would be given a license to hawk; 12) prohibition on the vending of costly items (example, electrical appliances, video and audio tapes and cassettes, cameras, phones etc.) and the added stipulation that any hawker found selling such items must have her/his license cancelled; 13) stipulation that hawking licenses would be issued for 1 year and the requirement that the discretion to not grant a license in the hawking zone would be exercised reasonably and in public interest; 14) the requirement of placing any proposed alterations in the scheme regulating hawking before a court-constituted Committee who would decide taking into consideration the views of all concerned including the hawkers, the Commissioner of Police and members of the public or an association representing the public, and; 15) the expectation that citizens and shopkeepers would assist ward officers and the police in keeping non-hawking zones/areas free from hawkers. 159 The court further clarified that even mobile hawkers “shall require to obtain a licence on payment of prescribed fees and display that licence on their shirt/coat at all times. Such hawkers will be allowed even in residential areas and areas where there are no shopping lines. They shall not sell costly items and will only vend articles of immediate requirement i.e. articles of convenience shopping. They shall not hawk within 100 meters of any place of worship, holy shrine, educational institutions or hospital or within 150 meters of any municipal or other markets or from any railway station.” 160 Following the 2013 decision of the Supreme Court in Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, all of these conditions were replaced by the more nuanced provisions of the 2009 policy on urban street vending.
159 Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, AIR 2004 SC 416, at paragraph 14. 160 Id., at paragraph 18.
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The 2013 decision of the Supreme Court was the latest major development in a long series of judicial pronouncements spanning over five decades where the Supreme Court had considered the legal status of street vending and the precise contours of the rights implicated in the phenomenon of street vending and its governmental regulation. 161 As long back as 1954, the Supreme Court of India had held that though all public streets and roads in India vest with the State, the State holds them as trustees on behalf of the public. 162 The decision of the Madras High Court in M. A. Pal Mohammed v. R. K. Sadarangani represents a singularly sophisticated judicial treatment of the rights of street vendors in cities when balanced with the rights of other citizens and users of public streets. 163 Curiously enough, in this case, the former Union Minister for Finance, P. Chidambaram (then a rising lawyer at the Madras High Court) represented the shop-keepers of 161 See Pyare Lal v. New Delhi Municipal Committee, AIR 1968 SC 133; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545; Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 545; MCD v. Gurnam Kaur, (1989) 1 SCC 101; Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155; Saudan Singh v. NDMC, (1992) 2 SCC 458; Ahmedabad Municipal Corporation v. Nawab Khan, (1996) 11 SCC 123; Gainda Ram v. MCD, (1998) 1 SCC 188; Romesh Chander v. Imtiaz Khan, (1998) 4 SCC 760; Sarojini Nagar Market Shopkeepers Association v. NDMC, (2000) 10 SCC 341; Navi Mumbai Municipal Corporation v. Navi Mumbai Hawkers and Workers Union, (2002) 10 SCC 369; Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, AIR 2004 SC 416; Sudhir Madan v. MCD, (2007) 7 SCR 1; Patri Vyapar Mandal Delhi v. MCD Town Hall, (2009) 12 SCC 475; Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, (2009) 17 SCC 151; Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, (2009) 17 SCC 231; Gainda Ram v. MCD, (2010) 10 SCC 175. Apart from these leading decisions, several other Supreme Court decisions and a large number of High Court judgments have also considered the normativity, legality, history, aesthetic impact, and desirability of street vending in specific contexts in urban India – this essay has not been attempted to trace all these decisions and their cumulative impact, and hop efully, this will be carried out in future work on this topic. 162 Saghir Ahmad v. State of UP, AIR 1954 SC 728, which referred to and approved the law on this point as contained in an earlier decision of the Madras High Court in G. S. S. Motor Service v. State of Madras, 19521 2 M. L. J. 894. The law on this point as recognized in Saghir Ahmad v. State of UP was subsequently relied upon by Justice Sharma of the Supreme Court in Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155. 163 AIR 1984 Mad. 32. Paragraph 30 of Justice Sathidev’s judgment states: “It is claimed by shopowners that this trade is a public nuisance. Hawker trade, so long as it is regulated in a proper manner by concerned public authorities, could never be a public nuisance. Rather, general public by and large, are not only attracted by this type of trade, but look forward to it for more than one reason. Shorn of mounting overheads which assume alarming proportions when goods are sold in sophisticated shops, the same type of goods are sold for reasonable prices with less percentage of profit. Even traders and manufacturers look to hawker trade to dispose of their accumulated
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Netaji Subhash Chandra Bose Road and Rattan Bazaar in Chennai in their (eventually unsuccessful) case against the street vendors. The constitutional position in India, briefly summarised, seems to be that street vending is an enforceable fundamental right under Article 19(1)(g); this right is however subject to existing or new laws that impose ‘ in the interests of the general public, reasonable restrictions on the exercise of the right ’ in accordance with Article 19(6) of the Constitution of India.164 The major difference in the thrust of the 2010 Gainda Ram judgment and the 2013 Maharashtra Ekta Hawkers Union judgment on the one hand and stocks, which they cannot sell, because either the design is not in vogue or the demand for such type of goods no longer exists, or due to rejection of goods by foreign buyers they could not be exported but still of good quality etc. Furthermore, when vegetables, fruits, flowers are required, general public invariably look forward to a hawker rather than go in for such stuff in shops, which are unreasonably expensive. The economic condition of people is such that they look forward to hawkers, who alone could sell for lesser price, the type of goods carrying a quality which would suffice their needs and aspirations. Quite often the shop owner, before whose shop the hawker is trading, depends on him for clearance of his accumulated stock, for a small margin he may earn. Even a shop owner who complains about the existence of hawkers, as he returns home buys his other household requirements from these hawkers. In many leading cities in the world on certain days in a week, the vehicular traffic in the earmarked street is p rohibited, and hawkers congregate, and public in large numbers gather to buy their requirements. Hence it is not as if this type of trade is found only in India. It could never be characterised as an illegal or unethical trade. Mainly because public authorities have failed to regulate their locations, it has resulted in a grievance being made by shop-owners, as if it is a trade that should be excluded. If regulatory measures are introduced, bearing in mind the requirements of the public of free access, public hygiene, public safety and the like, they can also prosper and the general public thereby be benefited. If specific plots are allotted and they are confined to those p ortions, there could be no conceivable objection for such a lawful trade to be carried out, particularly when it would provide an honest livelihood for those who have meagre capital but have a keen desire to carry on a trade. Once regulatory measures are introduced, it could never be a public nuisance.” This insightful decision has been referred to in the Sodan Singh case where V.M. Tarkunde (amongst others) argued for the petitioners and Justice Sharma’s judgment states that “if properly regulated according to the exigency of the circumstances, the small traders on the side-walks can considerably add to the comfort and convenience of the general public, by making available ordinary articles of everyday use for a comparatively lesser price. An ordinary person, not very affluent, while hurrying towards his home after a day’s work can pick up these articles without going out of his way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)g of the Constitution, on street pavements, if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re-passing and no other use.” See Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155, at paragraph 16. 164 While a detailed analysis is not possible here, further constitutional guidance relevant to informality, street vending, urban governance and the operation of the economic system may be sourced in provisions including the Preamble, Articles 14, 19, 21, 38, 39, 39-A, 41, 42, 43, 43-A, 47, 48-A, 243-P to 243-ZG (read with the 12th Schedule), 265, 276, 301, 302; entries 1,2, 5, 6, 8, 26, 27, 28, 49, 52, 56, 60 of List-II (State List); and entries 2, 3, 15, 18, 20, 21, 22, 23, 24, 26, 33, 33-A, 34, and 43 of List-III (Concurrent List) of the Constitution of India.
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earlier decisions on street vending in India on the other seems to be with regard to how these “reasonable restrictions” on the right to street vending are to be interpreted. In the language of the 2010 and the 2013 judgments, we see, for the first time, a recognition of the exclusionary tendencies of the neoliberal city, an acknowledgment of the interstitial nature of street vending, and a genuine effort towards the transformative possibilities of a realisable street vendor’s right to the city. Unstated in the texts of the judgments and in the national laws, but critical for any understanding of the imminent street vendors’ rights revolution in In dia, is the story of how civil society organisations and sympathetic individuals provided an unrelenting national and local support structure for legal mobilization and legislative lobbying. It remains to be seen how the national legislation of 2014 will be interpreted, and how, when implemented, it will contribute to or take away from the possibilities of spatial justice in the context of urban India. 165 One of the major challenges that the new national legislation on street vending will face is in ensuring that fundamental rights are adequately and equally protected across the country even as context-specific, citizen-driven and democratic urban functionality proliferates in shaping our cities. In this context, Jane Jacobs’ now classic 1961 work urges us to understand streets and sidewalks by how they actually function rather than for their intended use. 166 Her identification of street vendors (amongst others) as the ‘eyes on the street’ - who due to their long and continuous presence on the streets are capable of preventing harm, detecting wrongs, and providing immediate help when needed – has most recently found support in the JS Verma committee’s recommendations relating to how the Indian state should
165 For a recent overview of some of the problems in implementing the new legislation, see Sampath, supra note 138. For critiques of the 2012 Bill and 2013 Bill, see Ayani Srivastava et al, Formalising the Informal Streets: A Legislative Review of the Street Vendors (Protection of Livelihood and Regulation of Street Vending Bill, 2012, 4 JOURNAL OF INDIAN LAW AND SOCIETY 247-274 (2014); Rohan J. Alva, The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2013: Is the Cure Worse than the Disease , 35(2) STATUTE L AW REVIEW 181-202 (2014). 166 JACOBS, supra note 47. 167 Recommendation 17 states: “Street vending should be encouraged to make the bus stops and footpaths safe for communities and pedestrians, in addition to providing street food for the common man.” See GOVERNMENT OF I NDIA, REPORT OF THE C OMMITTEE ON A MENDMENTS TO CRIMINAL L AW 421 (2013), http://www.prsindia.org/uploads/media/Justice%20verma% 20committee/js%20verma%20committe%20report.pdf.
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counter the menace of rape. 167 Another major challenge for the national street vending legislation will be to ensure that formalising street vending does not simply result in greater surveillance, greater harassment, and increased bribe-seeking – all of which would simply encourage street vendors to transgress, evade and undermine the applicable (legal and spatial) regulatory frameworks. 168 Other challenges will involve the fair rationing and allocation of limited ‘high-value’ space, appropriately incentivising street vendors to genuinely formalise their livelihood practices, the norms for identification and de facto maintenance of no-vending and restrictedvending zones, the competence and integrity of decentralised administrative mechanisms for implementation, and finally, the difficult task or harmonising street vending laws with other laws (relating to crime, public order, transport, city planning, etc.). 169 Sufficient municipality level information on the ongoing implementation of the new street vending law is simply not yet available to enable a prediction on whether the law will effectively promote or suppress spatial justice; the devil, so to speak, lies in the details of the plans, schemes, rules, orders, circulars, guidelines etc. formulated by urban officials (and possibly, city dwellers) in response to the requirements of the new law and the demands of potential beneficiaries and other interested political participants. Five discrete areas within the 2014 Act that immediately require greater clarity are: 1) Conceptual clarity on the importance of “scheme”, “rules”, “plan” and “bye-laws” within the Act and the relationship between these legal terms with 168 On this point, see PAUL STOLLER, MONEY HAS NO SMELL: THE AFRICANIZATION OF NEW YORK CITY (2002); Arvind Rajagopal, The Violence of Commodity Aesthetics: Hawkers, Demolition Raids, and a New Regime of Consumption, 19(3) S OCIAL TEXT, 91-113 (2001); Jonathan Shapiro Anjaria, The Politics of Illegality: Mumbai Hawkers, Public Space and the Everyday Life o f the Law, inSTREET VENDORS IN THE GLOBAL URBAN ECONOMY, supra note 101, at 69-86. 169 See also Amlanjyoti Goswami, supra note 123, for a useful critique of the current street vending law. For a useful comparative survey and a clear identification of areas of tensions and complexity within street vending law in India, see Working Paper – Developing National Street Vendor Legislation in India: A Comparative Study of Street Vending Regulation, supra note 154. 170 See in particular §§ 21, 36, 37, 38, and the First Schedule and the Second Schedule of the 2014 Act. 171 §29(1) states: “Nothing contained in this Act shall be construed as conferring upon a street vendor any temporary, permanent or perpetual right of carrying out vending activities in the vending zones allotted to him or in respect of any place on which he carries on such vending activity.”
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regard to realising spatial justice and the right to the city in particular contexts; 170 b) the potential conflict between Sections 12 – 17 (chapter titled ‘rights and obligations of street vendors’) on the one hand and Section 29 on the other; 171 c) the impact of Section 27 and Section 33 on other municipal laws, police laws and crime laws in terms of the right to street vending; 172 d) the interpretation of ‘public purpose’ in Section 18(1) of the Act; 173 and e) the different roles of the State Government, the Planning Authority, the Local Authority, the Town Vending Committee, the Dispute Redressal Committee, and the relationship between these entities in terms of regulating street vending activities and realising spatial justice. The 2014 legislation marks an important interstitial moment for urban street vending in India insofar as hitherto fixed meanings and regimes are once again in flux and the right to the city finds space for its iteration, manifestation, contestation, and multiple realisations. A sensitive notion of urbanism, a heightened sense of spatial justice, a democratic engagement with urban governance, and an institutional adoption of the right to the city, might well lead us to Lefebvre’s revolution of space on the horizon. Critical engagement with state and non-state efforts to creatively and meaningfully translate the national law into municipal-level implementation will be key to realising spatial justice and a transformative Indian modernity.
172 §27 states: “Notwithstanding anything contained in any other law for the time being in force, no street vendor who carries on the street vending activities in accordance with the terms and conditions of his certificate of vending shall be prevented from exercising such rights by any person or police or any other authority exercising powers under any other law for the time being in force” and Section 33 states: “The provisions of this Act shall have effect notwithstanding anything inconsistent therein contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” 173 §18(1) states: “The local authority may, on the recommendations of the Town Vending Committee, declare a zone or part of it to be a no-vending zone for any public purpose and relocate the street vendors vending in that area, in such manner as may be specified in the scheme.”
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THE POLITICS OF FINANCIAL R EGULATION Sanaa Ahmed *
In a world where the dominant dynamic of economic regulation is one of deregulation, 1 financial-sector standards such as prudential regulations, accounting standards, as well as the regulation of corruption, securities, and money laundering have been ratcheted up and most countries have complied meekly. Why? The answer to this question lies in the ‘how’. This paper argues that the increasing currency of global standards and regulations are an indication of the pervasive nature of control exercised by the regulators. By setting up a protective, technicality-centred discourse around financial regulation, the regulators characterise it as an essentially technical and apolitical matter, and use the characterisation to infer legitimacy for themselves as disinterested and skilled technicians. It is argued that the nature of regulation – the structuring of a regulatory web, the go vern ance structures of regulatory institutions, as well as the enforcement mechanisms deployed – preclude any meaningful * 1
Sanaa Ahmed is a journalist who writes on legal and political issues. She holds an LLM from the University of Warwick and an LLB from the University of Karachi. I rely on Braithwaite & Drahos’ understanding of ‘regulation’ as an umbrella term for rules, norms, standards and guidelines. Financial regulation, as Braithwaite & Drahos see it, pertains primarily to the regulation of banks and non-bank financial institutions, money laundering, companies and securities firms, insurance, and taxation. They do recognise, however, that the procedural application of such regulation also brings standards related to accounting, auditing, corporate governance, and payments systems into the ambit of financial regulation. Comparatively, the joint IMF-World Bank Financial Sector Assessment programme also adds data dissemination, fiscal transparency, insolvency and creditor rights, monetary, and financial policy transparency to this list as standards and codes that must be monitored for effective regulation of financial systems. Braithwaite & Drahos’ use of the term ‘deregulation’ contrasts with that of other authors such as Hardt and Negri who argue that free markets do not feature less political control and intervention but merely those of a different kind. The process would then qualify as ‘reregulation’.See JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION (2000); MICHAEL HARDT & ANTONIO NEGRI, MULTITUDE 168 (2004).
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accountability. This paper submits that this control is symptomatic of a new kind of political control and contends that its aims must be interrogated. INTRODUCTION
The most remarkable feature of global financial regulation 2 is the difficulty in holding any one institution or regulator responsible for it. There is a vast and rich body of literature interrogating the normative commitments, the underlying ideology, and the politics informing the governance of the global political economy.3 Contemporary scholarship has problematised various aspects of global economic governance, its components – international trade and investment, development, and debt – as well as its implications for the subaltern: who is regulating whom, on whose behalf, why and how, and to what effect. In each instance, the implementing institutions and the authors of regulation, such as the World Trade Organisation (WTO), International Financial Institutions (IFIs) or transnational corporations, as well as the interests they represent, are easily identifiable. There is a distinct body of ‘rules’ with clearly defined consequences for non-compliance. There is a fierce debate on and contestation of the regulatory power wielded by these organisations, as well as their enforcement capabilities. Finally, the debilitating economic, social, and political consequences of these decisions are widely recognised. Animating these debates are concerns regarding the accountability, legitimacy, and transparency of these institutions and their decision-making processes, as well as the consequent impact on national sovereignty and democracy in the developing South.
2
3
Braithwaite Braithwaite & Drahos Drahos define define the globalisation globalisation of financial financial regulation regulation as “the “the spread spread of some some set set of regulatory norms”. See BRAITHWAITE & DRAHOS, supra note 1, at 8. As they see it, globalisation operates at the level of specific rules and at the level of general principles. pr inciples. Distinguishing principles and standards are the facts that standards are used as measures of conduct and can have a high level of specificity. See BRAITHWAITE & D RAHOS, supra note 1, at 19. The scope of this article, however, precludes such a distinction. See generally Saskia Sassen, Sundhya Pahuja, Sol Picciotto, Stephen Gill, David Schneiderman, and James Thuo Gathhi. ‘Global political economy’ here is understood as the interaction of the market and actors such as states, multinational corporations and international organisations. See ROBERT GILPIN, GLOBAL POLITICAL ECONOMY : UNDERSTANDING THE INTERNATIONAL ECONOMIC ORDER (2001).
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Despite being a crucial component of international trade, global financial fi nancial regulation has thus far escaped similar, significant, and sustained problematisation. 4This is partly due to its nature – it is hard to identify a single author and locate specific interests within multiple global regulatory bodies, harder to contest voluntary standards, and meaningless to resist resis t where there is neither overt enforcement nor penalty. However, the most significant impediment to meaningful debate about financial regulation stems primarily from the protective discourse surrounding it. This discourse characterises financial regulation as an essentially technical and apolitical matter. Consequently, global regulators and standard-setting bodies emerge as disinterested and skilled technicians, not established political actors with wellentrenched interests who assert power to achieve their own objectives. This discourse then persuades the few critics of financial regulation, as well as the regulated, to side with the regulatory agencies. Most seem convinced that regulation is good, more regulation is better, and the drafting of ‘necessary’ technical procedures to prevent financial contagion 5 or systemic risk6 is best left to the global experts. Dissent is mostly limited to the form – transparency, accountability, accountabi lity, 4 5
6
For use useful ful dis discu cuss ssio ions ns on on fina financ ncia iall regul regulat atio ion, n, see see generally, Julia generally, Julia Black, Chris Brummer, Emily Lee, Rolf Weber and Antonio Segura-Serrano. Contagion Contagion occurs occurs when cross-bord cross-border er capita capitall flows flows transmi transmitt economi economicc shocks. shocks. Contagion Contagion may may be divided into two forms: economic contagion, which occurs through trade and investment flows, and pure contagion, which arises from changing risk appetite among investors and can lead to reverse capital flows from emerging markets. See KERN ALEXANDER ET AL., GLOBAL GOVERNANCE OF FINANCIAL SYSTEMS: THE LEGAL AND ECONOMIC REGULATION OF SYSTEMIC RISK (2005). Precise Precise definiti definitions ons of of systemic systemic risk are hard hard to to come come by, although, although, as the the phrase phrase suggest suggests, s, the the phenomenon has to do with the risk r isk posed to the functioning of the financial system. Wilmarth, for example, defines it as “the risk that the failure of a major financial institution will severely disrupt the financial system syste m and will have adverse ‘spill over’ effects on the general economy”. See Arthur E. Wilmarth, Controlling systemic risk in an era of financial consolidation, consolidation, (2002), http://www.imf.org/extern http://www.imf.org/external/np/leg/sem al/np/leg/sem/2002/cdmfl/ /2002/cdmfl/eng/wilmar.pdf; eng/wilmar.pdf; comparatively, Alexander et al . define systemic risk as “arising from the mispricing mispr icing of risk in financial markets, which often means that risk is under-priced in relation to its costs and that the under pricing of risk results in too much of it being created in financial markets” can arise from pr oblems with payment and settlement systems or from some type of financial failure that induces a macroeconomic crisis. See crisis. See ALEXANDER ET AL. , , supra note 5, at 23. Systemic risk inherent to international banking includes global systemic risk (the risk that the failure of one significant bank will cause the collapse of the entire banking system); safety and solvency risks that arise
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et al 7 – rather than the substance of regulation; to the procedural difficulties in operation rather than governance itself. 8
This paper argues that this two-fold convergence between various national regulatory regimes, as well as the alignment of the proponents and criticsis symptomatic of a carefully concealed and insidious power. To quote Hardt and Negri in a different context, “[not] less political control but merely a different kind of of political control”. 9 The study of global financial regulation as a technique of power is fascinating, precisely because the regulators, regulations, and the processes of decision-making are as ‘flawed’ as those of international trade, or multilateral lending. But, a prudential regulation 10 proposed by the Basel Committee on Banking Supervision (Basel Committee) still lacks the emotive resonance or the proclivity towards being contested of a WTO-endorsed TRIPs regime or an IMF-sponsored conditionality. The ‘illegitimacy’ of the incumbent regime has not impeded, let alone prevented, increasing convergence of ‘minimum’ regulatory standards. However, the increasing currency of financial-sector standards, such as prudential regulations, accounting stand standards, ards, as well as the regulation of corruption, securities, and money laundering are not a testament to their inherent salubriousness but to from imprudent lending and trading activity, and the risks to depositors through the lack of adequate bank insurance. Systemic risk matters because high levels can lead to bank failures, which can, in turn, pose a threat to the financial system and the broader economy. This is because banks play an important role in payments and clearing systems; bank failures have an underlying potential for a bank run; and the threat of contagion due to the interconnected nature of banks. measures to manage systemic risk include capital adequacy requirements, large exposure Ex ante measures limits and limitations on lending while ex post measures measures include deposit insurance and the lender of last resort function. 7 See, for See, for example, Michele Frantianni & John Pattison, International Financial Architecture and International Financial Fi nancial Standards, Standar ds, 579 579 A NNALS A M. ACAD. P OL. & SOC. S CI. 183 (2002). 8 For a lucid lucid acco account unt of the the proce procedura durall problem problemss with with global global finan financia ciall governa governance nce,, see Jonathan see Jonathan Ward, The New Basel Accord and Developing Countries: Problems and Alternatives, Alternatives, CAMBRIDGE UNIVERSITY (2002), http://www.cerf.cam http://www.cerf.cam.ac.uk/publicat .ac.uk/publications/files/Wa ions/files/Ward04.pdf, rd04.pdf, and A LEXANDER ET AL , . , supra note 5. 9 HARDT & NEGRI, supra note 1, at 168. 10 The purpose purpose of prudential prudential regulations regulations is to help banks and and other other non-bank non-bank financia financiall intermediari intermediaries es manage various types of risk such as credit, concentration, market, settlement, liquidity and operational risk. ALEXANDER ET AL. , , supra note 5, at 24.
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the pervasive nature of control exercised. This discipline is both external (as enforced by the official sector 11 and the market) and internal (the self-disciplining involved in complying with international ‘best practices’ 12 ). Compliance is secured through the use of sophisticated disciplinary techniques such as watch listing, 13 conditionality,14 and intrusive surveillance, 15 not unwieldy and obvious enforcement mechanisms such as trade sanctions, or withheld loans. This paper is structured into three sections. Part 1 advances the normative argument of why financial regulation qualifies as a political, and not a technical issue, while Part 2 offers a historical overview of the evolution of global financial markets and regulation. Part 3 then moves into a discussion of the specific features of contemporary regulation that enable regulators to exercise stringent control and effect the global harmonisation of rules, regulations and standards.It is argued that the unproven utility of financial regulation, the democratic deficit in the devising of regulation, coupled with the pervasive nature exercised by regulators make it necessary to examine whether global financial regulation is really as worthwhile a project as it is made out to be. I. FINANCIAL R EGULATION : POLITICAL OR TECHNICAL ?
Financial regulation matters. Regulatory rules for financial intermediaries define the relationship between the stock of financial assets and overall liquidity. This, in turn, affects aggregate demand, output, employment, and the spending ability of individuals, firms, and governments. 16 A bank forced to adhere to higher capital adequacy requirements 17 lends less to individuals, businesses, and the government for ploughing into the productive economy. Fewer goods are produced, fewer jobs are created, and fewer roads are built. A bourse with overly stringent criteria for listing limits the ability of firms to raise capital, thereby constraining the
11 The phrase refers to the IMF and World Bank as distinguished from the private sector. 12 Antony Anghie, Time present and Time Past: Globalisation, International Financial Institutions and the Third World , 32 N.Y.U. J. I NT’L L. & P OL. 243, 286 (2000). 13 BRAITHWAITE & DRAHOS, supra note 1, at 28. 14 Sundhya Pahuja, Technologies of Empire: IMF Conditionality and the Reincription of the North/ South Divide , 13 L EIDEN JOURNAL OF INTERNATIONAL LAW 749 (2000). 15 ALEXANDER ET AL. , supra note 5, at 36.
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amount they consume and produce, the number of people they employ, and so on. A country featured on the Financial Action Task Force (FATF) blacklist finds it difficult to make payments to its trading partners, 18 which limits the amount of capital goods it can import. Financial factors are thus at the core of overall economic performance. 19 Consequently, as Picciotto argues, they have “(re)distributional consequences or implications” 20 far beyond what is envisaged by a “technicist view of social management”. 21 Contemporary global financial regulation is problematic on both the conceptual and the operational level. On the conceptual level, as Picciotto reasons, regulations which impact “livelihoods, health and living standards” are necessarily political in character. As such, assigning their formulationto an unelected ‘technical’ body runs counter to democratic practices. 22 Secondly, despite deep official sector inroads on state sovereignty in many developing countries, economic policy formation and finance ministries are still essentially ‘political’. Why should financial policies and central banks then be segregated from politics, especially when regulation affects the prospects of democracy as well? 23
16 17
18
19 20 21 22 23
ALEXANDER ET AL. , supra note 5, at 5. A capital adequacy ratio is the amount of capital that financial institutions are required to maintain against their outstanding loans. This is not to be confused with reserve requirements, which are the amount of money a financial institution must hold against the deposits made by its customers. The former is a provision against risk while the latter is a provisioning for expected losses (for example, bad loans). CARs are prescribed by the Basel Committee, while the reserve requirements are usually specified by central banks. This is because dollar payments around the world are cleared through New York and banks there are ‘discouraged’ from doing business with FATF-categorised Non Cooperative Countries and Territories (NCCTs) or otherwise ‘undesirable’ countries. For example, a Citibanker confessed that his bank was “actively discouraging” its people from opening correspondent accounts from Pakistan even though Pakistan is not an NCCT. Interview with an employee of Citibank, in London, (J anuary, 2005). ALEXANDER ET AL. , supra note 5, at 5. Sol Picciotto, Liberalisation and Democratisation: the Forum and the Hearth in the Era of Cosmopolitan Post-Industrial Capitalism, 63 L AW & CONTEMP . P ROBS. 157, 177 (2000). Id., at 160. These include the principles of transparency, accountability and legitimacy etc. Robert P. Delonis, International Financial Standards and Codes: Mandatory Regulation Without Representation, 36 N.Y.U. J. I NT’L L. & P OL 563, 623 (2004). She is referring particularly to the water riots in Cochabamba.
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II. THE EVOLUTION OF GLOBAL FINANCIAL MARKETS
The justification for the depoliticised nature of financial regulation can be located in the process of its historical evolution. The rapid globalisation of banks and financial markets during the 1960s and 1970s were not accompanied by a corresponding harmonisation of regulatory standards 24 until the German bank, Bankhaus Herstatt folded in 1974. The demise of the Bretton Woods system in the early 1970s was significant for the banking sector in that it resulted in the privatisation of foreign exchange risk.25 The private sector, in turn, pressured governments for greater liberalisation and fewer capital controls. But Herstatt demonstrated the downside of this greater interconnectedness.26 The bankwas overexposed in the foreign currency market and speculative activities regarding the movement of the dollar rate created crippling losses. Had the German regulators not decided to honour Herstatt’s obligations, five banks in the US would have folded as a result. 27 At the same time, the BritishIsrael Bank in London was closed for insolvency problems and the Franklin National Bank in the US followed suit soon after. 28 Like the German authorities, the US Federal Reserve also had to step in to guarantee the bank’s failed shortterm forex commitments in order to prevent the crisis from spreading. 29 Systemic risk and contagion had been born. The bank failures were widely attributed to the lack of an adequate regulatory structure which could protect against financial risk. 30 The cross-border lending 24 25
BRAITHWAITE & DRAHOS, supra note 1, at 103. In the absence of a fixed exchange rate system, banks with a high degree of concentration in the area of foreign trade payments were vulnerable to the vagaries of the foreign exchange (forex) markets. Bank failures in mature economies, BANK FOR INTERNATIONAL SETTLEMENTS, BASEL, http:/ /www.bis.org/publ/bcbs_wp13.pdf. To minimise potential losses from forex dealings, banks plumped for hedging strategies involving the diversification of assets into multiple currencies and the creation of portfolios held in foreign and offshore jurisdictions. A LEXANDERETAL. , supranote 5, at 22. 26 Fraitianni & Pattison, supra note 7, at 184. 27 ALEXANDER ET AL. , supra note 5, at 22. 28 For the period 1980-95, Fratianni & Pattison estimate an average rate of banking crises at 1.44 a year. Fraitianni & Pattison, supra note 7, at 184. 29 ALEXANDER ET AL. , supra note 5, at 22. 30 ALEXANDER ET AL., supra note 5, at 22.
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and borrowing activities of multinational banks had created a two fold problem. First, since no single regulator had jurisdiction over the entire international banking system,31 they found it difficult to manage systemic risk on their own. 32 Secondly, regulators usually had poor quality information regarding the international operations of domestic banks.33 To address the collective action and information problems described above, the G-10 regulators and central bankers met at Basel in 1975 to form the Basel Committee for Banking Supervision. This was the first global standard-setting body. The self-confessed initial aim was to “close gaps in the supervisory net” 34 through international cooperation but the “wider objective” was to “improve supervisory understanding and the quality of banking supervision”.35 These goals were to be met by exchanging information on national supervisory arrangements; improving the “effectiveness of techniques for supervising international banking business”; and setting minimum supervisory standards in “desirable” areas. 36 The resulting Basel Concordat was a set of “voluntary, legally non-binding, international standards and rules of prudential supervision for the regulation of financial institutions, payment systems and foreign exchange markets” designed to apply to just the G-10 countries. 37 III. THE PRESENT FACE OF R EGULATION: THINK LOCAL, ACT GLOBAL
Three aspects of contemporary global financial regulation require particular explication: the politics informing their devise; the prevalent means of effecting 31 32 33 34
33 36 37
BRAITHWAITE & DRAHOS, supra note 1, at 103. This is because of high transaction costs and undefined property rights. ALEXANDER ET AL. , supra note 5, at 34. BRAITHWAITE & DRAHOS, supra note 1, at 103. This was based on two basic principles: to ensure that no banking establishment “escaped” supervision, and that this supervision is “adequate”. Apart from the decidedly criminal connotations of the use of the word escape, it also needs to be remembered that first, Basel didn’t apply to apply all banks then and second, “adequate” was also decided by the G-10. A Brief History of the Basel Committee, BANK FOR INTERNATIONAL SETTLEMENTS, http://www.bis.org/bcbs/history.pdf. Id. (emphasis added). Supra note 34. ALEXANDER ET AL., supra note 5, at 35.
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regulatory convergence; and the consequent impact on accountability. Each aspect is discussed in greater detail in the sub-sections that follow. First, the phrase ‘think local, act global’ is employed in two senses here. First, it refers to the politicisation of global regulation – the transfiguration of a domestic political agenda into a global one. In its second sense, it refers to the assumption of global regulatory control by region-specific regulators and describes how that control is exercised and propagated. Put another way, the devise of global regulation is not a linear process and the assumption of worldwide standard setting responsibilities by region-specific regulatory agenciesis just one part of that process. Secondly, a significant method of effecting regulatory convergence has multiple agencies simultaneously issuing similar, overlapping regulations that are more often than not, replicas of each other. Enabling these processes are the governance structures of these agencies, which show a preponderance of powerful members from the global North. Also relevant here is a discussion of the multiple enforcement mechanisms employed to give effect to the standards. It is the complex interplay of all these factors simultaneously that makes ‘global’ regulation possible. The final sub-section elaborates on the fact thatthe combined operation of the above also makes it impossible to enforce accountability in global financial regulation and carries important consequences for global governance. The Politicisation of Regulation
The USA and the Basel Committee are good examples of how domestic policy imperatives can be brought to bear on global standards.The modus operandi for the committee was to evolve an informal consensus on a ‘best practice’ – a commitment the committee still honours – and allow members the freedom to implement it according to the peculiarities of their national systems. 38 Although the term ‘best practice’ carries connotations of neutrality and technical superiority, the standards and guidelines issued by the committee were as deeply politicised as any other. The first illustration of how a ‘best practice’ could be moulded according to domestic political imperatives came in 1988. The 1980s were a bad time for the banking industry in the USA. The Federal Deposit Insurance Corporation had to resolve some 1,650 federally insured banks and the Savings and Loans crisis of the early 1980s saw the failure of 1,320 financial 69
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institutions. 39 Widespread public agitation in the wake of these crises prompted the US Congress to pass a law in 1983 requiring banking agencies to ensure that all banks were adequately capitalised. 40 The Savings and Loans crisis data suggested that “adequate” was eight per cent of the outstanding loan amount and that was the number the Congress endorsed. The move allayed the fears of the electorate but made the banking constituency extremely unhappy. American bankers argued that the mandatory capital adequacy requirements placed them at a distinct disadvantage to foreign banks. 41 The US obligingly carried these concerns to the 1988 Basel Committee meeting and, despite strong opposition from other countries, succeeded in foisting the higher standards onto all members by a revision of the Concordat. 42 The move was subsequently justified primarily in technical terms. Higher capital adequacy requirements, the committee reasoned, would “strengthen stability” since capital in international banks was being eroded at a time crises were increasing. 43 Since the directive was worded in the language of neoliberalism – the move was projected to eliminate “competitive inequality arising from differences in national capital requirements” 44 – even the ‘secondary’ motive of maintaining the competitiveness of US banks became more palatable. This victory was important because it introduced finance trends that were to characterise regulatory initiatives in subsequent years. First, it showed that global 39 40 41 42 43
44
The latter alone cost the government some 151 billion dollars in bailout packages. Supra note 25. Accordingly, the Office of the Comptroller of the Currency and the Federal Reserve set minimum capital requirements for the multinational banks. Id. GILPIN, supra note 3, at2 75. This is because banks subject to higher capital adequacy requirements have less money to lend than those with lower CARs. This, of course, means that the better capitalised banks make less profit than the others. GILPIN, supra note 3. Interestingly, the implementation of the higher capitalisation requirements subverted the touted objective of stability. The prescribed capital adequacy ratio for short-term loans was a significantly lower two per cent of outstanding loans. As a corollary to this directive, most banks started focusing on short-term lending which, apart from the economic detriment (economic growth usually accompanies long-term, productive investments) also introduced more volatility into the banking system through an increase in speculative activities and time mismatches between assets and liabilities of borrowers (that is, loans would typ ically mature before the investments). Supra note 34. Supra note 34.
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regulation could be tailored to address localised concerns. Secondly, a proposal for raising the bar – regardless of the motivation behind it or its demonstrated efficacy – could always be presented as inherently beneficial and impartial advice. Thirdly, the opposition could always be disarmed by citing safety-related issues. ‘Best practice’ was no normative ideal and financial regulation was rapidly evolving into a technique of power that was cloaked in seeming neutrality. These trends were revisited during the development of anti-money laundering regulation. According to Braithwaite and Drahos, money laundering occupies the top priority in the US scheme of globalised financial regulation. 45 The authors attribute this enthusiasm to the “domestic priority of tackling the drug trade and the political attractions of blaming foreigners”. 46 Further, they suggest that money laundering has historically served as a convenient – if ‘coincidental’ – catchall for “national security objectives” as well as foreign policy imperatives. 47 But during the 1980s, most countries did not seem overly excited about devising anti-money laundering measures,48 certainly not enough to initiate regulation. The USA pushed the topic onto the Basel Committee as a subject worthy of regulation and eventually drafted the Basel Statement of Principles on Money Laundering (approved by the committee in 1988). 49 45
46 47
48 49
BRAITHWAITE & DRAHOS, supra note 1, at 105. Money laundering outranks uniform accountancy standards, harmonising tax, macroeconomic policy coordination and even capital adequacy for banks, something the authors find “somewhat shocking”. B RAITHWAITE & DRAHOS, supra note 1, at 142. Compliance with money laundering standards is more strictly monitored than other financial standards. B RAITHWAITE & D RAHOS, supra note 1, at 106. Interestingly, however, Delaware, Nevada and Montana in the US are still the bigg est money laundering havens in the world. JEFFREY ROBINSON, THE SINK 328 (2003). “The realist edge is that the US state gets domestic political kudos by painting the drug problem as a foreign conspiracy to corrupt the US that must be fought as a war.” B RAITHWAITE & DRAHOS, supra note 1, at 105, 391. The war on drugs was a convenient weapon against General Noriega and his ilk while the CIA “has an interest in being a major launderer of dirty money itself, while making it harder for the competition to do so.” B RAITHWAITE & DRAHOS, supra note 1, at 105. According to the authors, a consequence of the militarization of the war on drugs under Nixon, Reagan and Bush was that “drug interdiction was subordinate to the foreign policy goal to the defeat of communism”. BRAITHWAITE & DRAHOS, supra note 1, at 390. Post 9/11, the comparable foreign policy objective would probably be the defeat of terrorism. Braithwaite & Drahos cite FATF figures stating that up until 1990, only six countries had chosen to model the US practice of declaring money laundering a specific criminal offence. B RAITHWAITE & D RAHOS, supra note 1, at 105. BRAITHWAITE & DRAHOS, supra note 1, at 106. Significantly, the Basel principles predate the UN Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
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The Politics of Financial Regulation The Oyster of ‘the Global Regulator’ 50 The Regulatory Web
At the global level, responsibility for the creation of rules and standards is assigned to several different organisations. The Basel Committee handles banking supervision; the International Organisation of Securities Commissioners (IOSCO) looks at securities and companies regulation; and the OECD-based Financial Action Task Force (FATF) deals with money laundering. Even so, the lines of responsibility are not as clear as in multilateral lending or international trade as these agencies are not discrete ‘legislative’ units. The Basel Committee may have the banking portfolio but the WTO’s General Agreement on Trade in Services plays a growing role in financial sector issues as do regional treaty arrangements such as the European Union. 51 The Basel Committee is actively involved in both derivatives and money laundering regulation but a logical banking sub-field, the regulation of systemically important payments, lies with the Committee on Payments and Market Infrastructures (CPMI), earlier known as the Committee on Payments and Settlements System (CPSS). 52 IOSCO is responsible for securities and companies and regulates securities settlements systems with the CPMI, but the corporate governance rules are drafted by the OECD.53 The IMF and the World Bank, meanwhile, look on approvingly.Global financial regulation is thus “a dense web of influences” 54 with multiple regulators for most areas. 50 With apologies to Shakespeare for the liberty taken with his Merry Wives of Windsor. 51 Although the WTO plays no role in setting domestic financial regulatory standards, the freetrade principles of the GATS may influence how other international organisations and standardsetting bodies devise international standards of financial regulation. Meanwhile, the EU regulatory system has also come up with minimum harmonised standards for prospectuses for initial public offerings, market abuse, and insider trading, as well as money laundering. A LEXANDER ET AL. , supra note 5, at 9-10. 52 Committee on Payments and Market Infrastructures, BANK FOR INTERNATIONAL S ETTLEMENTS, http://www.bis.org/cpmi. The bifurcation is interesting because till 2009, the CPSS comprised the same set of members as the Basel Committee – the G10 central bankers. Delonis, supra note 23, at 590. In 2009, the list of members was expanded to 25, including, notably, Brazil, Russia, India and South Africa. 53 List of Standards, Codes, and Principles, INTERNATIONAL MONETARY FUND, http://www.imf.org/ external/standards/scnew.htm 54 I owe the phrase to BRAITHWAITE & DRAHOS, supra note 1, at 13.
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This is problematic because the institutional overlap makes it impossible to hold a single agency responsible for any piece of regulation. Further, while the multiplicity of regulatory institutions implies a ‘many voices’ approach to regulation – an indication of diversity and inherent salubriousness – the practice on ground sharply contradicts such notions. The global regulatory convergence project was conceived in response to the demand of global capital for harmonisation across jurisdictions and markets. As such, the ‘replicatory’ efforts need to be seen for the mutually legitimising exercises that they are. Governance Structures
“The epistemic community that steers financial regulation is a community of the North.”55 Nowhere is this clearer than in the institutional structures of the regulatory agencies, and the Basel Committee is again a good example. As the USA unilaterally commandeered the agenda at Basel, the committee too assumed the mantle of global regulator/supervisor/standard-setter. In 1990, the Basel Committee issued a supplement to the 1983 Concordat to improve the flow of prudential information between supervisors “globally” 56 – not just between the G-10. In 1992, certain principles of the Concordat were reformulated as “Minimum Standards”, which other supervisors were subsequently “invited to endorse”. 57 In 1998, the Basel Committee amended the Concordat to make it applicable to all countries where banks conducted cross-border operations. 58 Also worth remembering is that till 2009, the committee comprised the G10+3 59 central bank governors and national bank regulators. It can thus be seen as nonrepresentative and unaccountable on two counts. First, it excluded participation by other countries; to date, membership can only be acquired via invitation, and potential members are judged based on how important their national system is to 55 56 57 58 59
BRAITHWAITE & DRAHOS, supra note 1, at 123. Supra note 34. Supra note 34. Supra note 34. Present membership comprises 28 jurisdictions: Argentina, Australia, Belgium, Brazil, Canada, China, EU, France, Germany, Hong Kong, India, Indonesia, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, Russia, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Turkey, UK and the USA. Membership, BANK FOR I NTERNATIONAL S ETTLEMENTS, http://www.bis.org/bcbs/membership.htm.
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international financial stability.60 Secondly, given the emphasis on the need for ‘independent’ central banks, the members are unaccountable to even those within their domestic jurisdictions. Although the committee has tried to involve non-member countries in various aspects of the standard setting process, 61 this involvement has remained limited to consultation and “the actual decision making remains controlled by the G10 countries”.62 The coterie is renowned for their “secretive” decision-making and over-reliance on “personal contacts”. 63 Given its exclusivity as well as the lack of a mandate from other countries, the committee, strictly speaking, has no business devising rules for the world. But the committee located a mandate for itself in a “communiqué issued by the G7 Heads of State in 1997 that encourage[d] emerging economies to adopt ‘strong prudential standards’ and ‘effective supervisory structures’. The Committee … interpreted the G7 communiqué as authority for it to devise global capital standards and other core principles of prudential regulation for all economies where international banks operate[d].” 64 Even so, this is unsatisfactory and insufficient authority for an agency that affects the lives of the non-G10 countries as well. First, the regulatory initiative came from the G7, not the emerging markets that were supposed to implement the same. Secondly, the G7 effectively delegated an authority they did not possess. 65 The securities markets are also beset with similar issues. The International Organisation of Securities Commissioners (IOSCO) began in 1974 as an interAmerican regional association. 66 The decision to go global was taken by the 11 North and South American members in 1983. The new organisation was intended as a forum for the world’s regulators to meet, discuss and agree on policies and 60 61
62 63 64 65 66
Charter, BANK FOR INTERNATIONAL SETTLEMENTS, http://www.bis.org/bcbs/charter.htm. This has been through the establishment of a Core Principles Liaison Group comprising 13 nonG10 countries (including India, Brazil, Russia and China) as well as by establishing “close relations” with regional bank supervisory groupings such as the Offshore Grou p of Banking Supervisors. Supra note 34. ALEXANDER ET AL. , supra note 5, at 42 ALEXANDER ET AL. , supra note 5, at 37. ALEXANDER ET AL. , supra note 5, at 38. That the separation between initiating and creating regulation further dilutes accountability is another matter altogether. History,INTERNATIONAL ORGANISATION OF SECURITIES COMMISSION, http://www.iosco.org/about/ ?subsection=about_iosco.
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best practices. While IOSCO ranks higher than the Basel Committee on the democratic scale – it boasts 200 members from more than 110 countries 67 — it too is still learning democratic decision-making. Up until 2012, for example, the task of determining regulatory priorities and devising standards fell to the lot of the IOSCO Technical Committee, which featured only 15 regulators from the world’s most developed securities markets including the G10. 68 While all members were provided with the opportunity to voice their concern on all proposals, “most of the practical bargaining and shaping of issues” took place in closed-door Technical Committee meetings.69 Significantly, the meetings are off-limits for even other IOSCO members. While all members were entitled to vote on proposals, in practice, the decision of the Technical Committee was final. This was not only because of the expertise of its members but also because of the fact that the issues raised concerned the world’s leading financial markets. 70 In 2012, the standard-setting functions of the Technical Committee were taken over by the IOSCO Board, which features regulators from 34 jurisdictions including several from the global South. But there is little to show whether – and to what extent – decision-making is responding to the changes in governance structures. The FATF is similarly cliquish. It was established by the leaders of the G7 and the president of the European Commission in 1989. Boasting a total of 16 members drawn from the G7, the EC and eight other countries, FATF was to combat the perceived threat posed by money laundering to financial stability. 71Although the number of members has since increased to 36, the global South is underrepresented while the OECD contingent dominates.72 This is significant primarily because the 67 68 69 70 71 72
IOSCO’s current membership list includes 200 ordinary, affiliate, and associate members. Membership, INTERNATIONAL ORGANISATION OF SECURITIES COMMISSION, http://www.iosco.org/ about/pdf/IOSCO-Fact-Sheet.pdf. ALEXANDER ET AL. , supra note 5, at 58. For an exhaustive treatment of IOSCO’s institutional structure, see ALEXANDER ET AL. , supra note 5. ALEXANDER ET AL. , supra note 5, at 59. ALEXANDER ET AL. , supra note 5, at 59. Regulations, F INANCIAL A CTION T ASK F ORCE, http://www.fatf-gafi.org/pages/aboutus/ historyofthefatf. Interestingly, one of the criteria for membership listed on the FATF website is that the country be of “strategic importance”. There is no explication as to what constitutes strategic importance, Members and Observers, http://www.fatf-gafi.org/pages/aboutus/membersandobservers.
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agency claims the regulatory ambit to safeguarding the global financial system from money laundering and terrorist financing but has neitherthe representation nor a mandate to match. 73 Enforcement
The issue of enforcement should technically not arise. Global finance is governed primarily by international soft law. As “legally non-binding standards, prin ciples and rules that influence and shape state behaviour but do not fit into the traditional categories of public international law and bi- or multilateral treaties”, 74 soft law – unlike ‘hard’ law – does not imply obligation. 75 By definition then, soft law precludes both enforcement and penalties for breach. 76 Consequently, all the agencies referred to stress the ‘voluntary’ nature of their “recommendations”, “guidelines” or “principles”. The Basel Committee, for example, insists that it does not have any “formal supranational supervisory authority” and that itformulates its recommendations in the expectation that individual national authorities will implement them. 77 However, as Lichtenstein argues, the characterisation of a particular norm embedded in a regulatory regime as either ‘hard’ or ‘soft’ does not matter. What matters instead is “the process of obtaining effectiveness …, the methodology of better international dealings and cooperation”. 78 And this seems to be the approach taken by the regulators. On the face of it, the Basel Committee’s emphasis on the role of “individual authorities” and decentralised implementation of standards – one echoed by both IOSCO and FATF79 – suggests that the “process for obtaining effectiveness” or 73 74 75 76 77 78 79
The mandate for 2012-2020 was endorsed only by its members. Final Mandate, FINANCIAL ACTION TASK FORCE, http://www.fatfgafi.org/topics/fatfgeneral/documents ministersrenewthe mandateofthefinancialactiontaskforceuntil2020.html. ALEXANDER ET AL. , supra note 5, at 59. Quote attributed to Sir Joseph Gold in Cynthia Crawford Lichtenstein, Hard Law v. Soft Law: Unnecessary Dichotomy? , 36 I NT’L L AW.1433 (2001). Id. Supra note 34 (emphasis added). Supra note 75, at 1440. Objectives and Principles for Securities Regulation, INTERNATIONAL ORGANISATION OF SECURITIES COMMISSIONS , http://www.iosco.org/library/pubdocs/pdf/IOSCOPD154.pdf.
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regulatory convergence depends on national regulators. Since there are ostensibly no penalties for non-compliance and domestic implementation is necessary to give force to the standards, the decision whether or not to implement the global standards seems to rest squarely on the shoulders of national regulators. Contradicting this assumption, however, are the vigorous mainstreaming 80 exercises conducted by these agencies. The Basel Committee, for example, engages in extensive monitoring of member compliance 81 and confesses to “constantly exploring the mechanics of enforcing [its] standards”. 82 By their own admission, IOSCO and FATF are also similarly occupied. This mainstreaming is further enhanced by the official sector. Since the demise of the Bretton Woods system, the IMF has slowly but consistently been mapping new areas of operations for itself. At present, the Fund describes its core activities as lending, surveillance, providing technical assistance, economic research and statistics,83 and development of standards and codes.84 However, of the standards and codes deployed in 12 key areas, the IMF authors just three. 85 In the other areas, the IMF simply endorses the standards developed by other private sector agencies such as the Basel Committee, IOSCO, FATF, CPMI, OECD, International Accounting Standards Board, IAIS and International Federation of
80 81 82 83 84
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The term here refers to a subtle form of coercive enforcement conducted by popularising the use of the prescribed standards and codes. ALEXANDER ET AL. , supra note 5, at 37. Supra note 34. What the IMF Does, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/work.htm. The 12 “key” areas of operations are anti-money laundering and the combating of terrorism, accounting, auditing, banking supervision, corporate governance, data dissemination, fiscal transparency, insolvency and creditor rights, insurance supervision, monetary and financial policy transparency, payments systems, and securities regulation. Reports on the Observance of Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/rosc/ rosc.asp. These include data dissemination; fiscal policy transparency and monetary and fiscal policy transparency. Interestingly, even the Code of Good Practices on Transparency in Monetary and Financial Policies was developed in conjunction with the Basel Committee, the Center for Latin American Monetary Studies (CEMLA), CPSS, European Central Bank, International Associatio n of Insurance Supervisors (IAIS), International Finance Corporation, IOSCO, OECD and the World Bank. Code of Good Practices on Transparency in Monetary and Financial Policies, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/mae/mft.
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Accountants. 86 With the IMF as “principal enforcement agent” 87 then, the standards and codes authored by these agencies work their way into the fabric of all international economic transactions and relationships. 88 This technique of enforcement operates within the official sector as well as at the level of the market. 89 Within the IMF, these standards and codes are a crucial component of four of its five functions. First, the IMF usually works in almost all of its officially supported standards and codes into its loan agreements with states. 90 The Basel standards, for example, are “routinely” part of loan packages and compliance was a condition on at least seven of the loan arrangements made to East Asian countries after the 1997 crisis.91 The IOSCO standards were similarly prescribed for at least one country 92. Further, in some cases, compliance with standards such as those of the Basel Committee is a prequalification for IMF loans. 93 In others, compliance is a guarantee of better terms on the next loan. 94 Secondly, and perhaps most importantly in the context of the relation between standard-setting states and standard-receiving ones, the standards and codes are at the heart of IMF surveillance operations. In 1977, surveillance of the “general economic situation and policy strategy of each member country” 95 became a key 86 List of Standards, Codes and Principles Useful for Bank and Operational Work and for which Reports on the Observance of Standards and Codes are Produced, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/standards/scnew.htm. For an interesting discussion of the origins of the standards, see Delonis, supra note 23. “The fact that these standards come from sources other than the IMF could theoretically pose a problem because the Fund generally prohibits cross-conditionality with the objectives of other organizations; however, as IMF General Counsel Francois Gianviti has stated, ‘If the Fund concludes . . . that certain reforms need to be made to give effect to its own purposes, the fact that these actions will give effect to o ther treaties . . . cannot bar the Fund from making them a condition of its financial assistance’”. Delonis, supra note 23, at 597. 87 Delonis, supra note 23, at 595. 88 Delonis, supra note 23, at 623-4. 89 Delonis, supra note 23, at 95-6. 90 Delonis, supra note 23, at 597. 91 Delonis, supra note 23, at 598-601, 603. 92 Delonis, supra note 23, at 598-601. 93 ALEXANDER ET AL. , supra note 5, at 39. 94 Delonis, supra note 23, at 612. 95 IMF Surveillance Fact Sheet, INTERNATIONAL M ONETARY FUND, http://www.imf.org/external/ np/exr/facts/surv.htm.
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part of IMF operations. In 1995, the IMF began its “data dissemination” work. 96 But the most significant was the Financial Sector Assessment Programme (FSAP), which was launched in 1999 in conjunction with the World Bank. With the “soundness of financial systems” as its aim, the FSAP seeks to determine the strength of a country’s financial system, the quality of its regulatory and supervisory framework as well as its ability to manage and resolve financial crises and accordingly dispense country-specific macro and micro prudential recommendations.97 The programme hinges on “detailed assessments” of the extent of a country’s compliance with financial sector standards and codes. 98 Not only are these assessments published as Reports on Observance of Standards and Codes (ROSCs), the FSAP also provides the groundwork for the Financial Sector Stability Assessments in which IMF staff address issues such as the stability of the financial sector and its potential contribution to growth. 99 This has two significant implications. First, since the Basel Committee/IOSCO/ FATF – agencies with even less political legitimacy than the IMF itself – conceive these standards in the first place, in effect, it is they who decide whether a financial system is ‘sound’ or otherwise. Secondly, one sees the meticulous construction of a multi-layered edifice, where each subsequent layer is validated by the one preceding it and all rest on the base of standards and regulations. Thirdly, the standards also have a bearing on the technical assistance function. Requests for technical assistance by some developing countries are a corollary to 96 This comprises the General Data Dissemination System (approved by the IMF Board of Directors in 1997), which is aimed at all members and provides “recommendations of good practice” for the production and dissemination of macroeconomic and financial data (including the real, fiscal, financial and external sectors) as well as socio-demographic data (population, health, education, poverty). The Special Data Dissemination System (approved in 1996), on the other hand, targets those countries having or seeking access to international capital and prescribes specific macroeconomic and financial standards that must be adhered to. Other tools include Special Data Dissemination Plus and Data Quality Reference Site. General Data Dissemination System, INTERNATIONAL M ONETARY FUND , http://dsbb.imf.org/Applications/web/gdds/ gddswhatgdds. 97 Financial Sector Assessment Program, INTERNATIONAL M ONETARY FUND, http://www.imf.org/ external/np/fsap/fssa.aspx. 98 Supporting Documents Country FSP’s, INTERNATIONAL MONETARY FUND, http://www.imf.org/ external/np/fsap/fsap.asp. 99 Fact Sheet- The Financial Sector Assessment Program, INTERNATIONAL M ONETARY FUND, http:// www.imf.org/external/np/exr/facts/fsap.htm.
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the surveillance process.100 Through the means of short-term staff missions, longer term ‘expert placement’, training courses, workshops and additional staff reports among others,101 technical assistance helps countries cope with the specific problem of non-compliance 102 as identified by the FSAPs. This point is critical because it speaks of convergence as an end in itself, not as a possible cure for other consequences that may flow from non-compliance. In November 2002, for example, the IMF added the FATF recommendations to its list of standards and codes. Along with the World Bank, the IMF then “substantially increased” technical assistance available to those countries looking to strengthen financial, regulatory, and supervisory frameworks for anti-money laundering and the combating of terrorism. 103 As such, the IMF and the World Bank can be seen as the prime instruments of regulatory convergence. 104 That said, the importance of the market cannot be underestimated. A study of enforcement practices at the level of the market not only indicates the depth of mainstreaming, it also shows how the market functions as an IMF amplifier . While some commercial banks insist on IMF conditionality as a precondition to lending to states, the debt ‘clubs’ usually insist on an “IMF clause” in their agreements with countries.105 Many private financial institutions and investors base investment decisions on IMF surveillance data. 106 As a result, the publication of compliance data brings to bear an inordinate amount of pressure on a non-compliant state 107 looking to the international financial markets for funds. Studies show that states 100 Delonis, supra note 23, at 571. 101 Technical Assistance and Training INTERNATIONAL MONETARY FUND , http://www.imf.org/ external/np/exr/facts/tech.htm 102 This is substantiated by Braithwaite & Drahos’ assertion that capacity building by the IFIs tends to focus on the “transplant” of regulatory models from one state to another and does not address the more pertinent issue of building the capacity to manage those systems. B RAITHWAITE & DRAHOS, supra note 1, at 138. 103 The IMF and the Fight Against Money Laundering and the Financing of Terrorism, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/exr/facts/aml.htm. 104 BRAITHWAITE & DRAHOS, supra note 1, at 115; A LEXANDER ET AL. , supra note 5, at 36. 105 Pahuja, supra note 14, at 765, 749. 106 Delonis, supra note 23, at 609. Delonis cites the specific examples of Price waterhouse Coopers and the California Public Employees Retirement System. 107 Delonis, supra note 23, at 595-6. In a similar vein, Braithwaite & Drahos recount the example of how the US and UK coerced countries into complying with capital adequacy standards in 1987 by linking compliance with entry to their markets and threatening “inefficient financial regulatory systems” with the “spectre” of loss of business. B RAITHWAITE & DRAHOS, supra note 1, at 132.
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with better compliance have lower debt risk premiums and that the publication of ROSCs has a significant bearing on sovereign credit ratings. 108 Given the widespread interest in IMF data, even states use compliance as a ‘signalling device’ to potential trading partners and international investors in order to attract trade and investment.109 Accountability For None?
The combined operation of the regulatory web, the institutional structures of the agencies and the enforcement mechanisms makes assigning responsibility – and the locating of specific interests – within this diverse set a Herculean task. There is, of course, the issue of multiplicity. Take the example of the Know Your Customer (KYC) regulation. The regulation has long been an integral part of the Basel Core Principles for Effective Banking Supervision 110 and the FATF guidelines elaborate on the same in great detail. 111 Meanwhile, both the Basel principles and the FATF guidelines are used in the IMF’s ROSCs. 112 Today, KYC procedures are a key requirement of most central banks and are accordingly woven into the domestic legislative or regulatory fabric. But no single regulatory body can be held accountable, or even responsible, for the regulation. 113 Equally interesting are the issues of agency, both between the ‘global’ and the ‘local’ and within the global web. On the one hand, the emphasis on the ‘voluntary’ nature of the standards not only sets up a false dichotomy between the global and the local,114 it further imputes to the state/domestic regulators a degree of autonomy 108 Delonis, supra note 23, at 610-1 109 Delonis, supra note 23, at 611. 110 The explanatory notes to the 25 principles justify the regulation by claiming that even “inadvertent” association with “drug traders and other criminals” can undermine public co nfidence in banks and damage the bank’s reputation. The notes also recommend reference to FATF guidelines for a more thorough treatment of how to implement KYC procedu res: Core Principle s for Banking Supervision, BASEL COMMITTEE ON BANKING SUPERVISION, http://www.bis.org/publ/bcbs30a.pdf. 111 Regulations, FINANCIAL A CTION T ASK F ORCE, http://www.fatf-gafi.org/document/27/ 0,2340,en_32250379_32236920_33965659_1_1_1_1,00.html 112 Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/standards/ index.htmaccessed. 113 This statement is supported by Braithwaite & Drahos’ assertion that histories of globalisation are complex and cannot be understood in terms of the agency of single actors using single mechanisms. B RAITHWAITE & D RAHOS, supra note 1, at 31. 114 On the convergence of the national and global, see generally Sassen and Picciotto. Sassen refers to the process as the “blurring of duality” between the national and global, state and non-state,
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which is not evidenced by the workings of the global political economy. ‘State’ power is constituted by and helps constitute webs of regulatory influences comprising many actors wielding many mechanisms to achieve globalisation. 115 To paraphrase Santos, the world system, operating at the supra-state level, develops its own systemic law. This is superimposed on the national law of the individual states across the world system. 116 Perceiving financial regulation as essentially ‘domestic’ is thus untenable. On the other hand, the global web of regulation and the various interests it represents preclude the possibility of identifying a single omnipotent agency or state. “A community of the North” is as close as one can get to isolating a specific interest. CONCLUSION
The subprime crisis of 2007 showed that even the most stringent regulation is not enough to protect the global economy from the impact of financial crises in interconnected financial markets. Since the crisis arose in the most developed jurisdictions – with arguably the best-regulated markets – the calls for increasing regulation are now being met with a healthy dose of scepticism. The less developed markets that stand to acquire a hefty regulatory burden are now arguing that it’s not their mess and they shouldn’t have to clean it up, that too at such a high cost to themselves. Against this backdrop, the ‘democratic deficit’ in the devise and spread of global financial regulation underscores the need to interrogate both the substance as well as the aims of global financial regulation. The norms of transparency and accountability essential to good governance are severely lacking in the global financial regulation project. Recent scholarship has stripped economic regulation of its apolitical, technical pretensions and discovered a disturbing proclivity towards colonial domination through economic means. 117 How different is financial regulation? private and public in ministries of finance, central banks and specialised technical regulatory agencies while Picciotto speaks of the “fragmentation of the public sphere” as giving rise to “systems of layered governance based on regulation.” See Saskia Sassen, The Participation of States and Citizens in Global Governance , 10 IND. J. GLOBAL L EGAL S TUD. 5 (2003); Picciotto, supra note 20. 115 BRAITHWAITE & DRAHOS, supra note 1, at 31. 116 BOAVENTURA DE SOUSA SANTOS, TOWARDS A NEW LEGAL COMMON SENSE 67 (2002). 117 For accounts of the debilitating impact of neo-colonialism on the South, see generallyAppadurai, Anghie, Pahuja and Picciotto.
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FROM NYAYA PANCHAYATS TO GRAM NYAYALAYAS: THE INDIAN STATE AND R URAL JUSTICE Shishir Bail *
Legal reform attempts in India have frequently grappled with the problem of providing access to justice to rural litigants. In the early years of the Indian republic, the now infamous Nyaya Panchayats were tasked with this responsibility. These institutions were motivated by a desire to recreate an ‘indigenous’, panchayat based model of dispute resolution, but had more or less died out by the late 1970s. In 2008, the Parliament of India made a renewed attempt to address this problem through the passage of the Gram Nyayalaya Act, intended to result in the setting up of over 5,000 Gram Nyayalayas across the country. This article compares these two institutions to see whether Gram Nyayalayas make the same mistakes as their ill-fated forebears, or whether they do in fact represent a new approach to the problem of access to justice for rural litigants in India. This analysis reveals that Gram Nyayalayas differ substantially from Nyaya Panchayats, and in fact share far more similarities with the formal court system than to any poorly specified ideas of indigenous dispute resolution. INTRODUCTION
In the roughly sixty-seven years since Indian independence, the Indian legal system has gone through numerous ups and downs and the results have been mixed. 1 In * 1
Shishir Bail is a Research Associate at the School of Policy and Governance, Azim Premji University and holds a B.A. LLB (Hons.) degree from the West Bengal National University of Juridical Sciences. In addition to a general crisis of acceptance, the formal Indian court system has also suffered observable problems of case delay, backlog and quality. For discussions of the problems with respect to the Higher Judiciary see R. DHAVAN, LITIGATION EXPLOSION IN INDIA (1986) and N. Robinson, A Quantitative Analysis of the Indian Supreme Court’s Workload , 10(3) Journal of Empirical Legal Studies 570 (2013).
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this time, various diagnoses of both the problems as well as solutions have been offered. Some views pose the problem as primarily one of case backlog and delay; one which can only be remedied by an increase in judicial capacity. 2 Other views have criticised the substantive outcomes produced by the system and have cast doubt on its ability to deliver access to justice and the rule of law for the poor.3Alongside these, there is a third kind of critique that has been heard almost since the inception of the Indian legal system. This critique is based on the idea that the Indian legal system is ‘alien’, having been introduced by the British colonial administration. This critique further argues that rather than the reform of this legal system, what is needed is a return to ‘indigenous’ processes of dispute resolution.4 Though the formal court system has remained much the same since independence, these ideas of ‘indigeneity’ have at different times inflected debates on legal system reform in India. The fact that many reform attempts have invoked, in one form or another, visions of ‘traditional’, ‘indigenous’ dispute resolution is proof of their continuing currency among India’s legal policy establishment.5 Though there are various examples of this, possibly the most notable of such forums were Nyaya Panchayats. These forums, in sum and substance, attempted to bring ideas of traditional, ‘panchayat-based’ dispute resolution into the formal legal system. They were also meant to provide a decentralised, accessible, somewhat particularistic mode of dispute resolution for persons living in rural areas. Though introduced
2
3
4
5
For some of the problems with the lower judiciary see R. Moog, Delays in the Indian Courts: Why the Judges Don’t Take Control , 16(1) J USTICE SYSTEM JOURNAL 19 (1992) and L AW COMMISSION OF INDIA, 77TH REPORT: DELAYS AND ARREARS IN TRIAL COURTS (1978). A useful overview of the numerous Government reports emphasising supply-side solutions to the problem of backlog is provided by K. Hazra & M. Micevska, The Problems of Court Congestion: Evidence from Indian lower courts, in A. K. H AZRA AND B. DEBROY, JUDICIAL REFORM IN INDIA: ISSUES AND ASPECTS 137, 141-2 (2007). See for instance P. Baxi, Access to Justice and the Rule of [Good] Law: The Cunning of Judicial Reform in India (Institute of Human Development New Delhi on behalf of the UN Commission on the Legal Empowerment of the Poor, Working Paper, 2007) and S. M URALIDHAR, LAW, POVERTY AND LEGAL AID: ACCESS TO CRIMINAL JUSTICE (2004). See Marc Galanter, The Aborted Restoration of ‘Indigenous’ Law in India, 14 C OMPARATIVE STUDIES IN SOCIETY & HISTORY 53 (1972) for an examination of these kinds of critique both before and immediately after independence. The continuing salience of these ideas is evident in the legislative debate surrounding the Gram Nyayalaya Act as we show subsequently. Some earlier instances of these are Nyaya Panchayats, discussed in more detail subsequently, and Lok Adalats.
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around the time of Indian independence, by the late 1970s these forums had all but vanished in most of the states in which they had operated. After their extinction, the District and Taluka courts were the only state forums for dispute resolution available to rural litigants for many years. This situation continued until 2008, when the Parliament of India passed the Gram Nyayalayas Act. This Act sought once more to create a system of decentralised and accessible judicial institutions for rural litigants at the village level. At the time of the passage of the Act, over 5,000 of these institutions were sought to be established, one for each Taluka in the country. Like Nyaya Panchayats, Gram Nyayalayas are intended to occupy the lowest tier of the judicial hierarchy. Further, after Nyaya Panchayats, Gram Nyayalayas are the next attempt by the Indian State to provide rural litigants access to village level judicial institutions. For these reasons, the creation of these institutions gives rise to a series of questions: do Gram Nyayalayas, like Nyaya Panchayats, also attempt to recreate ‘indigenous’ or ‘traditional’ forms of dispute resolution? How do these institutions differ from Nyaya Panchayats? These are the questions that this paper engages with. To answer these questions, this paper proceeds in the following manner. First, it provides some context to demands for a return to ‘indigenous’ dispute resolution in the Indian legal system. This is done by looking specifically at the category of the ‘village panchayat’. At various points in the history of legal reform in India the ‘village panchayat’ has been put forward as the ideal, traditional form of dispute resolution that must be returned to. Nyaya Panchayats are in many ways a concrete manifestation of the ‘village panchayat’ idea of dispute resolution. The paper argues that the failure of these institutions represents the unviability of this idea in designing institutions for rural justice reform. From there, the paper moves on to study the recently established Gram Nyayalayas. First, the paper examines the structure of these institutions by looking at the 114th Law Commission Report, which first recommended the creation of these institutions, and the Gram Nyayalayas Act of 2008. Thereafter, the paper discusses the results of field-work conducted on three Gram Nyayalayas in the months of June and July 2013. The paper argues that in structure as well as functioning, Gram Nyayalayas represent a move away from the ‘village panchayat’ 85
From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
ideal of dispute resolution. For the most part, they are best seen as an expansion of the formal court system to geographically remote areas. I. THE CONTEXT OF RURAL JUSTICE REFORM IN INDIA
It is widely known that at the time of Indian independence, the Constituent Assembly charged with drafting the new Constitution was divided on the question of whether or not to sanction the continuation of the British Indian Legal System, consisting in the main of the multi-level system of courts. Within the Constituent assembly, there were a number of voices, led notably by M.K Gandhi, who advocated the discarding of this system in favour of a de-centralised, informal system constructed on ‘indigenous’ lines. As things transpired, the latter option was rejected conclusively by the Constituent Assembly in favour of the maintenance of the system of Courts; the Constitution of India mandates the establishment of a detailed hierarchy of Courts starting from the district judiciary at the bottom and rising all the way up to the Supreme Court of India. 6 While the Constituent Assembly decided to go ahead and carry on with the system of formal courts, voices in favour of a return to ‘indigenous’ dispute resolution processes as a possible solution have never really died down. Following on from Gandhi, there have been those who have continually asserted that the British inspired legal system, with its emphasis on adversarial litigation is unsuited to the sensibilities and historical tendencies of the Indian people towards simple, conciliatory processes. 7 Frequently, the ‘village panchayat’ is invoked as the ideal form of indigenous dispute resolution suitable to Indian society. Nyaya Panchayats are projected as a concrete manifestation of this ideal. It is important therefore to understand both the content of the village panchayat ideal, as well as its operationalization through Nyaya Panchayats. The Village Panchayat
The Law Commission of India in its 14th Report provides us with a succinct statement of a widely held view of the role of the ‘village panchayat’ in Indian history: 6
For a careful account of this process see Marc Galanter, The Displacement of Traditional Law in Modern India, 24 JOURNAL OF S OCIAL ISSUES 65 (1968).
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References to village panchayats abound in ancient literature and later historical accounts. In the structure of society as it existed in those days, the panchayat was the creation of the villagers themselves and was composed of persons who were generally respected and to whose decisions the villagers were accustomed to give unqualified obedience. It does not appear that these panchayats were brought into existence by the authority of the ruler. Except in matters of general importance, the ruler seems to have left the villagers to govern themselves and, among other things, the villagers assumed the responsibility for the settlement of disputes among themselves. It has, however, to be remembered that the disputes which these panchayats were called upon to determine were simple disputes between one villager and another; disputes that would otherwise have tended to disrupt the rural harmony. The village in those days was more or less self-contained and self-sufficient, the villagers being in a considerable measure dependent on themselves. In such a condition of affairs, it was not unnatural that the panchayats should have exercised a great measure of authority and commanded the willing allegiance of the people. 8 This description of the function of the village panchayat seems to follow from earlier bureaucratic accounts of their existence and functioning. The Civil Justice Committee of 1924-25 (The Rankin Committee) discusses in some detail the existence of village panchayats and makes careful recommendations about conferring them jurisdiction in civil and criminal disputes. 9 The view of the Law Commission of India is based upon an idea of the Panchayat as constituted territorially at the village level. These panchayats are ostensibly created by villagers themselves and are made up of persons who are ‘generally respected’. This view suggests that village communities consist of individuals who all have an equal say in the constitution of panchayats. On the face of it, this is a perfect picture of small, liberal democracies, which are taken to be self-evident parts of traditional Indian culture. This is a view long held in debates on panchayats 7 8 9
For an excellent discussion of these voices from the time of Indian independence onwards, see M. Galanter, supra note 4. LAW COMMISSION OF INDIA, 14TH REPORT: REFORM OF THE JUDICIAL ADMINISTRATION, 874 (1958). CIVIL JUSTICE COMMITTEE, 1924-25 R EPORT, 105 (Government of India Central Publication Branch, 1925).
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as instruments of justice in India; Cohn traces this back to Thomas Metcalf’s description of village communities as ‘little Republics’ in 1830. 10 What is striking about this view is the absence of any mention whatsoever of the constitutive importance of group status, hierarchy and caste in the constitution of these panchayats. This idea of the ‘village panchayat’ has been powerfully critiqued, among others, by Louis Dumont. He argues that at the time of the British invasion, there were no ‘village panchayats’ distinct from caste panchayats. 11 Further, he shows that all matters of general importance in a village were first and foremost matters for the dominant caste. 12 The pre-eminence of the dominant caste panchayat in deciding matters of general importance is confirmed by other anthropological studies of disputes in rural India. 13 Hierarchy and group identity are well established to be important parts of the panchayat process, and to have a direct bearing on the adjudication of different disputes. 14 In contrast, the ‘village panchayat’ view takes rural society to be made up of inherently peaceful, equal individuals only interested in the amicable settlement of disputes. In short, this view emphasises the inexpensive, decentralised and particularistic nature of panchayat dispute resolution, without acknowledging the vastly different normative bases on which these institutions rest. At best, the village panchayat dispute resolution ideal is an inaccurate representation of the true nature of panchayat dispute resolution. Even so, this view has remained influential in debates on Indian legal reform. Nyaya Panchayats are the best example of this. Nyaya Panchayats – An Introduction
The Royal Commission on Decentralisation in 1907 was the first to highlight the constitution and development of village panchayats with administrative powers and jurisdiction in ‘petty’ civil and criminal cases. 15 The first state to introduce 10 B. S. Cohn, Anthropological Notes on Disputes and Law in India, 67(6) AMERICAN ANTHROPOLOGIST 82, 96 (1965). 11 L. DUMONT , HOMO HIERARCHICUS : THE CASTE SYSTEM AND I TS IMPLICATIONS, 172 (1980). 12 Id, at 171. 13 Robert M. Hayden, A Note on Caste Panchayats and Government Courts in India: Different Kinds of Stages for Different Kinds of Performances, 22 J OURNAL OF LEGAL PLURALISM 43 (1984). 14 Cohn, supra note 10, at 96. 15 Law Commission of India (1958), supra note 8, at 874.
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these panchayats through legislation was Madras through the Village Courts Act of 1888. This was followed up by most of the other states in the country at that time.16 Each state enactment contained minor differences in terms of constitution and jurisdiction, however to a large extent the jurisdiction of these tribunals in civil cases was restricted to (1) suits for money due on contract; (2) suits for recovery of movable property; (3) suits for compensation for wrongfully taking movable property and (4) suits for compensation for damage caused by cattle trespass. Suits relating to immovable property were taken out of the jurisdiction of Nyaya Panchayats completely; in many States the pecuniary value of suits triable by these forums was kept as low as Rs. 25 or Rs. 40. 17 These panchayats were given jurisdiction over a large number of criminal offences under the Indian Penal Penal Code. Generally, Nyaya Panchayats did not have the power to order periods of incarceration, and could only impose a fine at worst. 18 Members of the Nyaya Panchayats in most states were appointed through the process of election. These elections were either direct, or involved variations of indirect election and nomination.19 Each Nyaya Panchayat was generally set up for a group of villages (usually 7-10 villages). 20 Nyaya Panchayats were generally exempted from strictly observing the procedures contained in the Codes of Civil and Criminal Procedure, as well as the Indian Evidence Eviden ce Act. Lawyers were completely barred from appearing before Nyaya Panchayats in most states. 21 Nyaya Panchayats therefore contained many of the hallmarks of the village panchayat ideal. They were exempted from strict procedural rules, employed popularly elected adjudicators and were located geographically close to parties, at the village level. The non-application of procedural rules would allow the use of customary processes of hearing disputes. The presence of popularly elected leaders would ensure that they were ‘generally respected’ by the population, and therefore
16 The Law Commiss Commission ion of India India in its 14th 14th Report Report provides provides a useful list list of the individ individual ual states states and enactments. Law Commission of India (1958), (1958), supra note 8, at 878. 17 These These equate equate to roughly roughly Rs. 1,250 1,250 or Rs. 2,00 2,0000 in 2013 2013 money. money. Law Commiss Commission ion of India India (1958), (1958), supra note 8, at 882. 18 Law Comm Commis issi sion on of of Indi Indiaa (195 (1958) 8),, supra note 8, at 884. 19 See U. Baxi & M. Galanter, Panchayat justice: an Indian experiment in legal access, access, 3 ACCESS TO JUSTICE: EMERGING ISSUES AND PERSPECTIVES 343 (1979) for a discussion of the various methods. 20 Id. 21 Law Commi Commiss ssio ionn of Indi Indiaa (195 (1958) 8),, supra note 8, at 883.
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From Nyaya Panchayats Panchayats to Gram Nyayalayas: Nyayalayas: The Indian Indian State and Rural Justice Justice
that their decisions were valued and adhered to. If the village panchayat ideal is to be believed, these institutions captured the essential features of indigenous dispute resolution in India. Why then, did they fail so miserably? Baxi and Galanter argued that many of the problems with Nyaya Panchayats stemmed from the ambiguity around their exact nature and their role in the judicial and political systems. 22 They point out that already by 1970, the workload of Nyaya Panchayats in some states had fallen considerably. 23 In Uttar Pradesh total filings had dropped from 91,107 in 1961 to 35,865 in 1970. In the same time, filings in the formal civil and criminal courts had risen consistently; the situation was similar in Bihar. While national level studies by the Law Commission (1958) and the Study Team on Nyaya Panchayats 24 (1962) saw great promise in these institutions, institutions , results reported by studies in individual states were much less sanguine. Reports in Maharashtra and Rajasthan recommended the abolition of these institutions altogether, both for different reasons. 25 By the time of Meschievitz and Galanter’s 1982 study, actual sightings of Nyaya Panchayats were already infrequent in the state of Uttar Pradesh. 26 They described some of the difficulties and absurdities caused by the structure of the Nyaya Panchayat system. Aside from problems with funding and overlapping jurisdiction, some problems were a product solely of the unique Nyaya Panchayat structure. Chief among these was that Nyaya Panchas (the adjudicators) were required to stick as far as possible to the letter of the substantive law, when in fact most were 22 Bax Baxi & Ga Galanter supra note 19, at Part III. 23 Bax Baxi & Ga Galanter supra note 19, at Part II E. 24 REPORT OF THE STUDY TEAM OF NYAYA PANCHAYATS (Ministry of Law, Gov’t of India, 1962) as cited in Baxi in Baxi & Galanter, supra Galanter, supra note 19. 25 The report report of the the Rajasthan Rajasthan Committee Committee attribut attributed ed the failure failure of of Nyaya Panchay Panchayats ats in that that State State to the separation of the judiciary and the executive at the ‘grassroots level’. It accordingly recommended that the jurisdiction to hear disputes be granted to the ordinary Gram Panchayat. On the other hand, the Maharashtra Committee was concerned that these institutions were not gaining much support and were hence moribund, but more damagingly, argued that their presence was in fact harming already existing modes of informal, non-state dispute resolution. On these grounds, it recommended their abolition as soon as possible. Both states finally abolished Nyaya Panchayats in 1975. See 1975. See REPORT OF THE HIGH POWERED COMMITTEE ON PANCHAYATI RAJ (Government of Rajasthan 1973) and R EPORT OF THE EVALUATION COMMITTEE ON PANCHAYATI RAJ (Government of Maharashtra 1971) as cited in Baxi B axi & Galanter, supra note 19, at Part II F. 26 C. S. S. Mesc Meschi hiev evit itzz & M. M. Gala Galant nter er,, In Search of Nyaya Panchayats: The Politics of a Moribund Institution, 2 THE POLITICS OF INFORMAL JUSTICE 47, 61 (1982).
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not highly literate; the only requirement to be recruited as a Nyaya Pancha being a minimum age of 30 years and the ability to read and write in Hindi. Hind i. As a result, most Nyaya Panchas failed to sufficiently understand the legal provisions they were to apply. Further, Nyaya Panchas were expected to fulfil an incredibly complex role; treading a delicate balance between textual law and local custom, remaining honest, upright and impartial, sensitive to the needs of parties, fair in reaching suitable compromises, forceful in levying and collecting fines, all without compensation or the necessary means to do so. 27 For these reasons, Meschievitz and Galanter were strongly pessimistic of the continued existence of Nyaya Panchayats and described them as ‘institutionally weak and moribund.’ 28 They attributed this state of affairs to the indiscriminate use by Indian policy makers of the ‘panchayat ideology’, which was deployed in an effort to avoid serious engagement with the nature of disputes and law in rural India.29 They describe the panchayat ideology in the following terms: More recently, Galanter and Krishnan have suggested that Nyaya Panchayats failed because they represented an unappetising combination of the formality of official law with the political malleability of village tribunals. 30 The Nyaya Panchayat experience holds valuable lessons for the design of rural justice reform in India. These were an attempt to recreate recreate an idealised traditional institution, the village panchayat, and at the same time imbue them with an adherence to the enacted substantive law of the country. As we have seen earlier, the village panchayat ideal itself was based on a dubious vision of the nature of law and disputes in rural India. The failure of Nyaya Panchayats shows that at least in this form, demands for a return to indigenous processes process es of dispute resolution are unlikely to be fruitful. 28 Mesc Meschi hiev evit itzz & Gala Galant nter er,, supra note supra note 26, at 70. 29 They They describe describe the the pancha panchayat yat ideol ideology ogy in the the followi following ng terms: terms: “This ideology is one component of the politics of rural justice in India. It offers a set of formulas by which to portray social reality; it enables politicians and legal policymakers to ap peal for public support without promising action. The panchayat ideology is one that politicians and legal policymakers can safely support without having to implement an effective Nyaya Panchayat system (much less committing them to use such a system themselves)” Meschievitz & Galanter, supra note 26 at 57. 30 M. Gala Galant nter er & J.J. K. K. Kri Krish shna nan, n, Bread for the Poor: Access to Justice and the Rights of the Needy in India, India, 55 H ASTINGS LAW JOURNAL 789, 793 (2004).
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice II. GRAM NYAYALAYAS
The previous part of this paper showed that Nyaya Panchayats, relying on the ‘village panchayat’ ideology, represented an unviable approach to rural justice reform. Do Gram Nyayalayas commit the same folly? If not, how do they depart from the earlier model? These are the questions with which this part engages. Gram Nyayalayas – A short history
The creation of Gram Nyayalayas was first suggested by the Law Commission of India in 1986 in its 114th Report. A quick perusal of the Law Commission of India’s 1986 report on Gram Nyayalayas alerts one to their stated desire to move away from the Nyaya Panchayat model. 31 The first major thrust of the report was towards the idea of participatory justice. The Law Commission identified the ‘alien’ nature of the Indian legal system as one of its biggest drawbacks.32 Following from this, the Law Commission stresses the need for persons adjudicating disputes to be knowledgeable of local conditions and culture. In order to achieve this, the Commission settled on a model of a rural court manned by a three member panel. This panel was to be headed by a judicially trained officer, accompanied by two lay-judges.33 While the judicial officer would be selected from the cadre of judges maintained by each State, the lay-judges were to be appointed through the process of selection by a panel consisting of the District Magistrate and the District and Sessions Judge. Unlike Nyaya Panchayats therefore, there was no component of democratic election to the Gram Nyayalaya. 34 Still, the Law Commission appeared to be convinced of the benefits of lay-adjudication. The Law Commission declined to specify a pecuniary limit for the proposed Gram Nyayalayas. Instead, in civil cases they simply specified a list of types of subject matter that Gram Nyayalayas would have jurisdiction over. Generally speaking, this was more expansive than the jurisdiction awarded to Nyaya 31 32 33 34
This was even though ‘strengthening in rural areas the institutions of Nyaya Panchayats’ was one of their terms of reference. L AW COMMISSION OF INDIA, 114TH REPORT: GRAM NYAYALAYA, 1(1986). “It has till today remained an alien system which has no living contact with the masses and is not meaningful to them.” Id., at 7. Law Commission of India (1986), supra note 31, at 19. Law Commission of India (1986), supra note 31, at 20.
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Panchayats.35 The Law Commission was also in favour of granting Gram Nyayalayas wider jurisdiction in criminal matters than had earlier been the case with Nyaya Panchayats, due to the presence of the proposed judicial member on the panel of judges in the Gram Nyayalaya. 36 Further, the Law Commission proposed a simplified procedure in civil cases, through the exclusion of the Civil Procedure Code and the Indian Evidence Act. In criminal cases the Criminal Procedure Code would still be applicable. 37 Lawyers were not to be barred. Notably, Gram Nyayalayas would be mobile, in the sense that they were to travel to the sites of individual disputes. This was intended as a solution to the problems of collecting evidence.38 On the whole, the Law Commission intended to create a forum which combined some of the important features of both the formal courts, as well as institutions such as Nyaya Panchayats. The Gram Nyayalayas Act of 2008
The Gram Nyayalaya Act of 2008 incorporates some of the features suggested by the Law Commission Report. As an example, Gram Nyayalayas are to remain ‘mobile’ and conduct periodic visits to the villages within their jurisdiction. Some of the Law Commission recommendations are however ignored completely. Absent is the idea of ‘participatory’ justice that formed an important part of the Law Commission’s model. In sum and substance, the Act of 2008 contains many significant departures from the Nyaya Panchayat model, as well as from the Law Commission Report of 1986. Some of these are as follows: Lay-adjudication: Nyaya Panchayats as well the Law Commission Report of 1986 laid a lot of stress on the need for lay-adjudicators in rural disputes. This was because these persons were thought to be more knowledgeable about local custom and practices. In sharp contrast, the Act of 2008 establishes that each Gram Nyayalaya will be headed by a single Nyayadhikari, who must possess the 35
For instance, Gram Nyayalayas were to hear disputes pertaining to immovable property. These were excluded from the jurisdiction of Nyaya Panchayats altogether. Law Commission of India (1986), supra note 31, at 27-28. 36 Law Commission of India (1986), supra note 31, at 28-29. 37 Law Commission of India (1986), supra note 31, at 31-34. 38 Law Commission of India (1986), supra note 31, at 31.
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qualifications of a Judicial Magistrate of the First Class. 39 This means that at the very least, a Nyayadhikari must possess a law degree. This appears to be a rejection of the promise of lay-adjudication, in favour of adjudication by professional judges. Procedure to be followed: Nyaya Panchayats were generally completely exempted from applying the procedural law. The Law Commission prescribed simplified procedures for Gram Nyayalayas in civil cases, and the reduced application of criminal procedure in criminal cases. By contrast, the Gram Nyayalayas Act of 2008 retains the applicability of the Code of Criminal Procedure 1973, to all criminal cases before it. This is subject to the caveat that all cases will first be heard through the summary trial procedure. If the Nyayadhikari deems it necessary, they may be re-heard through the regular trial procedure.40 In civil cases, the Act prescribes a procedure that departs in some substantial respects from the Code of Civil Procedure, 1908. For instance, Section 24(6) of the Act declares that for any incidental matter arising during a civil trial, the Gram Nyayalaya may adopt such procedure as it deems just and reasonable in the interest of justice. In both civil and criminal cases, Gram Nyayalayas are not bound by the provisions of the Indian Evidence Act. Section 30 of the Act allows the Gram Nyayalaya to receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute, whether or not the same would be relevant or admissible under the Indian Evidence Act, 1872. In sum, while the procedure in Gram Nyayalayas departs in some important respects from the main procedural codes, there are also substantial similarities, especially in criminal trials. It is also worth noting that in civil cases the Act gives substantial latitude to the State Government and High Court to decide the form and manner of pleadings.41 Legal Representation: Most Nyaya Panchayat legislations expressly barred the presence of lawyers, who were seen as fomenting litigation and encouraging vexatious claims. In stark contrast, the Gram Nyayalayas Act makes no attempt to bar the presence of legal representation. Adversarial adjudication is very much a part of the Gram Nyayalaya’s mandate; this is clear also from the 1986 Law 39 40 41
Sections 5 and 6, Gram Nyayalayas Act, 2008. See Sections 18 and 19. See Section 24.
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Commission Report. Coupled with the rejection of the idea of lay adjudication, it appears clear that Gram Nyayalayas embrace a professional model of justice delivery and dispute resolution. The Act makes it mandatory for the Gram Nyayalaya to first attempt to resolve civil disputes through conciliation. 42 The procedure for conciliation is determined by the High Court, and each Gram Nyayalaya is required to maintain a panel of conciliators for this purpose.43 Though the Act does not specify this, it is reasonable to assume that disputes that cannot be resolved through conciliation will still be adjudicated upon. In the structure established by the Act therefore, there is minimal homage paid to the many elements of the panchayat ideology. The Gram Nyayalayas Act adopts a model of adversarial adjudication by professional judges, with parties represented by legal professionals. Aside from this, Gram Nyayalayas have a wider jurisdiction in both civil and criminal cases than was enjoyed by most Nyaya Panchayats. Though civil cases are meant to be conciliated first, the provisions of the Act retain a bedrock of adversarial proceedings. This is a significant departure from the village panchayat ideal of consensual, and amicable dispute resolution. This being the case, the legislative debates on the Gram Nyayalayas Bill of 2008 are instructive of the continuing appeal of the village panchayat ideal. Many members of the Rajya Sabha, most notably Kalraj Mishra, strongly advocated a rejection of the Gram Nyayalaya Bill in favour of a return to ‘traditional’ processes.44 A popular proposal was the conferring of jurisdiction to hear disputes on the elected Gram Panchayat. 45 Significantly, these efforts were unsuccessful. Even at the time of its inception then, there was an understanding in the legislature that Gram Nyayalayas signified a move away from traditional processes, rather than an attempt to recreate them.
42 43 44 45
See Section 26. See Section 27. RAJYA SABHA PARLIAMENTARY DEBATES, SESSION NUMBER 214, p. 243 (December 17, 2008). For instance, see the intervention made by Shantaram Laxman Naik (INC). Id., at 234.
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice Gram Nyayalayas in Action
Notwithstanding the legal structure of these institutions as discussed above, a more textured understanding of their character can only be obtained through an account of their actual functioning. Significant questions remain, such as the following: -
How do the provisions mandating professional representation, adjudication and increased procedural requirements in Gram Nyayalayas operate? Do they protect against a return to the model of dispute resolution seen in Nyaya Panchayats?
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What role do the conciliation provisions in the Gram Nyayalayas Act play in this process?
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What kinds of cases do Gram Nyayalayas hear?
To answer these questions, this section describes the results of field research undertaken on three Gram Nyayalayas in the months of May and June 2013. The three Gram Nyayalayas chosen for this study were in the Indian states of Rajasthan, Maharashtra and Madhya Pradesh. Specifically, in Rajasthan the Gram Nyayalaya studied was located in Bassi Taluka, part of Jaipur District. In Maharashtra the Gram Nyayalaya was in Haveli Taluka, part of Pune District. The last Gram Nyayalaya studied, in Madhya Pradesh, was in Gwalior Taluka, part of Gwalior District. The number of Gram Nyayalayas operationalised across the Country is far short of the intended figure; the three states chosen for this study were the three states that had operationalised the most Gram Nyayalayas in the Country.46 On the basis of preliminary research, these appeared to be the only States to approach the creation of Gram Nyayalayas with any seriousness. 47 Madhya Pradesh in particular is the only State in the Country that has made a sizeable investment in Gram Nyayalayas. 46
47
Madhya Pradesh leads all others by a long way in this respect, with 89 Gram Nyayalayas operationalized in that state alone as on September 2012. Rajasthan had the second highest number, with 45. Maharashtra reported the third highest number, with 9. R AJYA SABHA WRITTEN ANSWERS TO UNSTARRED QUESTIONS, SESSION NUMBER 225, p. 145 (March 19, 2012) Though other states, such as Kerala, have sanctioned the creation of further Gram Nyayalayas subsequently, none of these have yet become operational.
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Each Gram Nyayalaya was observed through the course of one day of hearing. 48 In addition, interviews were conducted with the presiding Nyayadhikaris as well as lawyers appearing for the parties. The parties themselves were not spoken to directly. The following paragraphs describe the results of these observations. Judges, Lawyers and Procedures: an Emphasis on Professional Justice Delivery
As discussed earlier, the Gram Nyayalayas Act departs significantly from the Nyaya Panchayat model in its prescription of professionally qualified judges, and the presence of legal representation. Section 6 of the Act mandates that a Nyayadhikari must have the same qualifications as a Judicial Magistrate of the First Class. Conceivably, this could be interpreted to include persons outside the formal judicial structure but possessing the necessary qualifications: eg., practising lawyers, retired judges and so on. However, all the three Gram Nyayalayas we observed were manned by sitting members of the judiciary in their respective States. Further, these Gram Nyayalayas were in fact already existing courts of the Judicial Magistrate First Class, which had been additionally named as Gram Nyayalayas. So, on most days of the week or month, these were ordinary court rooms at the District or Taluka court complex. On certain designated days, they would travel out and make village visits. This was how their ‘Gram Nyayalaya’ function was fulfilled. Second, at least two of the three Gram Nyayalayas shared their docket of cases with the Magistrate’s Court. What this means is that the ‘Nyayadhikaris’ heard the same cases in the Gram Nyayalaya as in their parallel capacity as Judicial Magistrates First Class. In all three cases, their dockets were made up predominantly of criminal rather than civil cases. We discuss this in more detail presently. On these grounds at least, the title of Gram Nyayalaya appeared to be more a nominal category than the mark of a truly novel institution. All three Gram Nyayalayas were attended, to lesser or greater degree, by lawyers. The Gram Nyayalaya at Bassi was located within the same complex as the other Taluka courts, and was therefore easily accessible to the lawyers who worked in the area. The situation was slightly different in Haveli and Gwalior, where the Gram Nyayalaya was convened at the Gram Panchayat office of the village it was 48 The Gram Nyayalaya at Bassi was observed only for half a day.
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visiting. This made it somewhat difficult for lawyers to attend these proceedings. The few lawyers who did attend were thoroughly disparaging of the fact that they had to travel long distances to do so. In Haveli, out of the 11 cases that were heard on the day we attended, only one defendant was represented by a lawyer. In Gwalior, the same lawyer appeared for the defendants in 3 out of the 7 cases that were heard on the day. In all these cases, an adjournment was sought and received. How did the presence of sitting judges and qualified lawyers affect the manner of proceedings in Gram Nyayalayas? In 10 out of the 11 cases we observed in Haveli, the defendants were not represented by lawyers. These cases were all decided summarily, with the accused pleading guilty to the charges against them. Generally, these were minor public order offences involving a maximum punishment of a fine or a small period of imprisonment. In these cases, after pleading guilty the defendants were ordered to pay a fine. They duly deposited this fine with a Court Official entrusted with this task and left. The 11th case involved a slightly more serious offence with a maximum punishment of imprisonment for 3 years. Here, the accused was represented by a lawyer. In this case, the public prosecutor present there examined his main witness, the police constable who registered the case. Thereafter, the witness was cross-examined by the defence lawyer. After a short deliberation and final arguments on both sides, the case was decided and the defendant was acquitted. The 10 cases in which the accused pleaded guilty were ‘petty offences’ under the Criminal Procedure Code, 1973. These are offences punishable only by a fine, up to a maximum of Rs. 1000. Petty offences may also be tried summarily, under Chapter XXI of the Criminal Procedure Code. In these cases it did not appear that the judge was unduly influencing or coercing the defendants into pleading guilty; most cases lasted a maximum of 3-4 minutes. It appeared quite clear that in these cases the defendants had arrived with the intention of pleading guilty, paying the fines, and having their cases finally closed. Assuming that those who pleaded guilty actually believed themselves to be so, the process in the Gram Nyayalaya appeared to adhere reasonably to the applicable procedural law. In the other case, the trial was conducted in largely the same manner as in any other Magistrate’s Court. The lawyer for the defendant was allowed to fully present their claims, 98
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and eventually they were acquitted for a lack of evidence. The procedure in both these kinds of cases then followed quite closely the procedure to be followed in the formal courts. More interestingly, the judge and lawyers were dressed in full court dress. The judge was dressed in his gown, as were the lawyers. For all external observers then this was an ordinary court, albeit in an extraordinary location. The story was only marginally different in Gwalior. On the day we attended the hearings, only seven cases were called and heard. In a number of other cases, parties’ names were called out but none appeared. We were told that this was an extraordinarily low figure. In four out of these seven cases, the defendants appeared themselves. The three remaining cases were all handled by one lawyer, who sought adjournments in all three. Though we were not able to observe any cases being heard and decided, it was telling that in the cases that we saw adjournments were easily sought for and given. If anything, this was more emblematic of one of the frequently invoked pathologies of the formal court system than anything else. Further, all the seven cases called that day were criminal cases stemming from motor accidents. We were not able to observe any cases being heard in Bassi. Still, some aspects of the Gram Nyayalaya there were indicative of the likely nature of functioning. The Gram Nyayalaya itself was constructed as an additional court-room in the Taluka court complex, replete with a bench for the judge, witness stands, and galleries for parties and their families. Aside from the sign at the entrance, there was not much to distinguish this court room from the others in the court complex. Conversations with the Nyayadhikari further confirmed this impression. He indicated that while the Gram Nyayalaya used to make village visits earlier, that practice had more or less stopped. Cases were now heard exclusively in the designated court-room, and proceedings were much the same as any of the other courts in the court complex. None of the three Gram Nyayalayas we visited either maintained a panel of conciliators, or regularly referred cases to conciliation. Both of these are mandated by the Act in civil cases; this seemed to be a generally ignored feature of the structure prescribed by the Act. All cases in these Gram Nyayalayas were heard and decided by the Nyayadhikari. 99
From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice Caseloads
The absence of conciliation proceedings in Gram Nyayalayas becomes more easily explicable when looking at the caseloads of these institutions. From the disparate sources of data available, it is quite clear that these institutions hear overwhelmingly more criminal cases than civil cases. For instance, there were a total of 1,603 cases pending before the Gram Nyayalaya at Bassi on the 21st of May 2013. Of these, 1,376 were criminal cases while 233 were civil cases. The Gram Nyayalaya in Haveli on the other hand heard exclusively criminal cases. We could not find a single civil case among the cases heard or disposed by this Gram Nyayalaya for the months of March, April or May 2013. The absence of civil cases in this Gram Nyayalaya was confirmed in conversations with the Nyayadhikari as well as the Registrar of the Pune District Court. The most extensive data set received was from the state of Madhya Pradesh for the year 2013. Again, this shows the minuscule number of civil cases heard and disposed in the Gram Nyayalayas in that State as opposed to criminal cases. On the 1st of January 2013 there were 120 civil cases pending before all eighty eight Gram Nyayalayas in Madhya Pradesh. By contrast, the similar figure for criminal cases was 12,447. Similarly, a total of 142 civil cases were filed before all Gram Nyayalayas in Madhya Pradesh during the year; the corresponding figure for criminal cases was 6,244. Finally, and rather damningly, all 88 Gram Nyayalayas in Madhya Pradesh disposed of a paltry 98 civil cases in 2013. That is little more than one case per Gram Nyayalaya. By contrast, these same institutions disposed of 6,446 criminal cases during the year. While it is true that there are generally more civil than criminal cases pending before India’s lower courts, Gram Nyayalayas still appear to hear a disproportionately higher number of criminal cases than civil. Returning to our earlier discussion, it is not surprising that none of the Gram Nyayalayas we visited had taken steps to facilitate conciliation proceedings by maintaining a panel of conciliators. The Act prescribes conciliation only in civil cases, while all three generally heard only criminal cases.
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Analysis
Through the above discussion, it becomes fairly clear that Gram Nyayalayas are a substantial departure from the ‘village panchayat’ model embodied by Nyaya Panchayats. For all intents and purposes, they are decentralised courts, manned by sitting members of the judiciary, and deciding cases on the bases of the substantive and procedural laws of the land. This appears to especially true of criminal cases, which are heard in much the same manner as in the ‘formal’ court system. On the other hand, we could not witness the manner in which these forums disposed of civil cases. It is possible that these cases are decided in a substantially different, ‘village panchayat’ manner. The presence of professional judges and lawyers in Gram Nyayalayas however militate against this possibility. The presence of the latter especially is likely to ensure that even civil cases in Gram Nyayalayas are heard in an adversarial manner, using the somewhat truncated procedure prescribed in the Act. At any rate, it must be remembered that Gram Nyayalayas hear a minuscule number of civil cases at the best of times. CONCLUSION
Over 60 years after independence, the search for acceptable and accessible legal institutions for those living in rural India is still on-going. At many times, this search has been punctuated by calls to return to ‘traditional’ or ‘indigenous’ f orms and mechanisms for dispute resolution.The ‘village panchayat’ ideal and its interpretation through Nyaya Panchayats are the most notable attempts by the Indian state to operationalise this return.The failure of those institutions was evidence of both the inaccuracy of the village panchayat idea, as well as its unviability as a guide for meaningful reform. Gram Nyayalayas are the next major chapter in this story. Like Nyaya Panchayats, they are intended to provide persons in rural areas village level access to judicial institutions. They are however, strikingly different in both their structure and functioning. At no point do they claim to offer a particularistic, localised form of dispute resolution. For the most part, they embrace a professionalised model of justice delivery founded on the idea of adversarial adjudication. In this respect, 101
From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
they are much closer to the ‘formal’ courts in the country than to any indigenous or traditional institutions, real or idealised. In the broad story of the Indian legal system, the move from Nyaya Panchayats to Gram Nyayalayas likely signifies the conclusive end of State attempts to return to traditional models of dispute resolution, and the move towards a model based on the slow and steady expansion of the formal court system.
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JUDICIAL R ESTRAINT IN AN ERA OF TERRORISM: PREVENTION OF TERRORISM CASES AND MINORITIES IN INDIA Shylashri Shankar*
The article assesses and compares the behaviour of India’s higher judiciary on Prevention of Terrorism Act (POTA) cases with the pattern of rulings on previous preventive detention and anti-terror laws in India. It tests the hypothesis in Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights, that POTA cases would see more pro-state rulings, particularly after incidents of terrorism, but that Muslim minorities would not be unduly targeted by the judges. The findings from the 103 POTA cases affirm the hypothesis that the judgments of the high court and the supreme court do not exhibit a pattern of disfavouring Muslim accused. However, a more disquieting element with worrisome consequences for civil liberties is apparent in the framing of the anti-terror cases. The court is more likely to rule in favour of the state when a case is framed as ‘Islamic terrorism’. The impreciseness of this and other terms such as ‘urgency’ and ‘security threat’ have expanded the scope of the application of anti-terror laws, diluted the ‘due process’ protections, and reduced the ability of judges to make a distinction between the political aspirations and the religious affiliation of the accused. This has diluted the procedural and substantive protection for civil liberties of citizens and vulnerable minorities in India. INTRODUCTION
Terrorism is one of the biggest tests of a democracy’s ability to abide by its precommitment to fundamental rights. It induces higher levels of insecurity and greater willingness on the part of citizens to allow legislatures to enact laws that may allow secret trials, detention without trial, surveillance, and even torture. Antiterror laws are particularly insidious because they bypass constitutional and *
Shylashri Shankar is Senior Fellow at the Centre for Policy Research, New Delhi.
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Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
procedural safeguards, thus instituting a ‘dual’ or ‘parallel’ system of justice. 1 Unlike the punitive nature of criminal law, detention and anti-terror laws are preventive, that is, an individual’s autonomy can be curtailed – by tapping phones, by reading e-mails, and by imprisonment - merely on the suspicion that he/she may commit an act that might infringe the security of the state. Anti-terror legislation is usually enacted against secessionist or global jihadi groups, but, as studies show, the brunt of the enforcement (and the attendant mistakes) is borne by religious, ethnic, and political minorities. 2 About 140 countries have passed counter-terror laws since Al-Qaeda’s attack on September 11 in America; 3 with little debate or reflection on the implications of increasing the draconian powers of the state. India’s Prevention of Terrorism Act (POTA), which expanded the discretionary power of the state to limit liberties in the name of terrorist and seditious activities, was passed by the Parliament on 28 March 2002 after barely ten hours of debate. 4 The democratic failure school 5 argues that minorities are most at risk during a terrorist threat because there is a tendency on the part of the state to barter their rights to pay for enhanced security of the majority. In such times, the majority 1 2
3 4
5
U JJWAL KUMAR S INGH, T HE STATE, DEMOCRACY AND A NTI-TERROR LAWS 70 (2007); Upendra Baxi, The Rule of Law in India, 4 Sur-Revista Internacional de Direitos Humanos 6, (2007). The US’s PATRIOT Act has been implemented in a way detrimental to the civil liberties of minorities, while Turkey’s Law to Fight Terrorism has been used against the Kurdish minority. See Yevgenia S. Kleiner, Racial Profiling in the Name of National Security: Protecting Minority Travelers’ Civil Liberties in the Age of Terrorism, 30 B.C. T HIRD W ORLD L.J., 103 (2010); Edel Hughes, Political Violence and Law Reform in Turkey: Securing the Human Rights of the Kurds?, JOURNAL OF CONFLICT STUDIES, http://journals.hil.unb.ca/index.php/JCS/article/view/4513/ 5324. Global: 140 Countries Pass Counterterrors Law since 9/11, HUMAN RIGHTS WATCH, http:// www.hrw.org/news/2012/06/29/global-140-countries-pass-counterterror-laws-911. India is one of the few countries that provides for preventive detention as an ordinary legislative power in times of peace. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 50 (N.M. Tripathy ed., 3d ed. 1983). Explanations for this can be attributed to the view held by powerfu l members of the Constituent Assembly that (i) fundamental rights were seen as gifts of the state which could be curtailed, (ii) the state was seen as a benevolent entity, and therefore (iii) there was no need for courts to oversee the content or requirement of preventive detention. See Suhas Chakma, Do Ends Justify Means?, http://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm, for a comprehensive list of preventive detention acts. Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV.,(2006); Jeremy Waldron, Security and Liberty: the Image of Balance, 11 JOURNAL OF POLITICAL PHILOSOPHY, 191203 (2003); David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 MICH. L. REV., 2565-95, (2003).
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opinion veers towards jettisoning rights and upholding the Roman adage, salus populi primus lex – the safety of the people is the ultimate law. The risk increases if these minorities belong to the same religious or ethnic group as those challenging the territorial integrity of a country. 6 The judiciary, as the interpreter of anti-terror laws, is at the forefront of balancing the demands of security with the obligation of democracy to protect fundamental liberties. Do courts in democracies protect the rights of minorities accused under anti-terror laws? Those who answer in the affirmative see courts as providing a constitutional check on executive power and ensuring democratic accountability. 7 Their reasoning is that judges are insulated from political preferences and therefore, from majoritarian prejudices, allowing them to act without fear or favour, and protect minorities. But empirical evidence supporting such a view is limited. A contrary view is held by scholars such as Robert Dahl 8 who was the first to rebut the hypothesis that a court ‘stands in some special way as a protector of minorities against the tyranny of the majority.’ Rather, judges are more likely to be “jurispathic agents of state coercion” 9 and the principles of deference align the interpretive acts of judges with the acts and interests of those who controlled the means of violence. Other empirical work supports this view that more often than not, courts defer to the executive during a crisis because of constitutional, institutional, and patriotic reasons. 10 This position has been referred to as national security maximalism or executive unilateralism. Citing evidence from the USA, Asia, and Europe, scholars argue that democracies are no better than authoritarian systems at protecting civil liberties during a crisis 11 and that they may even curtail 6
For arguments justifying democratically authorised abridgments of liberties of some in order to preserve the liberties of all, see M. Ignatieff , Human Rights, the Laws of War, and Terrorism, 69 SOCIAL RESEARCH 1137 (2002). 7 CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP , (2002). 8 Robert Dahl, Decision making in a Democracy: The Supreme Court as a National Policy-Maker, 6 JOURNAL OF PUBLIC LAW, 279 (1957). 9 Robert Cover, The Supreme Court, 1982 Term—Foreword: Nomos and Narrative, 97 H ARV. L. REV. 4, (1983). 10 Floyd Abrams, The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST L. 1 (2002); Philip B. Heynman, Dealing with Terrorism: An Overview,26 INTERNATIONAL SECURITY, 24-38 (2001). 11 Tania Cruz, Civil Liberties Post September 11, Judicial Scrutiny of National Security: Excessive Restrictions of Civil Liberties When Fears and Prejudices are Aroused, 2 SEATTLE JOURNAL FOR SOCIAL JUSTICE 129 (2004); Eugene Rostow, The Japanese American Cases- A Disaster, FACULTY SCHOLARSHIP SERIES, http://digitalcommons.law.yale.edu/fss_papers/2155.
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liberties. Crisis situations are defined as those where the security of the country is compromised by violent secessionist movements and/or threats from terrorist groups.12 For instance, after the September 11 attack, when the United States Congress passed the PATRIOT Act giving authorities wide latitude to detain and convict citizens without customary burdens of proof, most of the detenus were Muslims.13 Cole14 highlights the four main reasons why traditional explanations would argue that courts are likely to fare poorly on matters of national security during a crisis. First, judges, notwithstanding their independence, are members of state institutions and are likely to identify with other institutions such as the Parliament and the Army when the security of the country is at stake. This, coupled with a ‘rally around the flag’ effect makes judges less likely to stand above the crisis. Secondly, crisis situations inherently push the judges to defer to the Executive since the court lacks complete information to assess the validity of the threat. As Cole and others point out,15 the US Supreme Court’s decision in Korematsu ,16 where it deferred to military claims of necessity as sufficient reason for interning JapaneseUS citizens, was later shown to be based on an inaccurate record. Thirdly, if the court rules against the executive on a matter of national security, they may face and most likely lose a challenge to their credibility and legitimacy. Finally, judges might worry that their decision might be followed at some subsequent cost to national security. The reasons proffered by both approaches for a particular type of judicial behaviour could cut either way. Sunstein 17 rightly points out that institutionally, judicial independence (structural and operational) does not guarantee impartiality 12 13 14
15 16 17
Lee Epstein, Daniel E. Ho, Gary King, and Jeffrey A. Segal, The Supreme Court During Crisis How War Affects Only Non-War Cases, 1 N.Y.U. L. R EV. 80 (2005). The Council of American Islamic Relations received 1522 reports of abuse under the Act, but unreported cases are higher, says the BBC. See Jenny Cuffe, US Muslims ‘alienated from Patriot Act’, BBC NEWS, http://news.bbc.co.uk/2/hi/programmes/file_on_4/5145970.stm. Cole, supra note 5. He argues that a less pessimistic evaluation of judicial performance on matters of national security is warranted if we ask what role have judicial decisions played o ver time in framing the options available to the Executive. He argu es that courts have restricted the options for the Executive in the next Emergency. Supra note 5. Korematsu v. United States, 323 U.S. 214, 246 (1944). R.Sunstein, Minimalism at War (Preliminary Draft 12/3/04),SOCIAL SCIENCE RESEARCH NETWORK, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=629285.
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or neutrality of judges or an inherent tendency towards the protection of the content of rights. For instance, judges cannnot always know whether they are right, even about the meaning of the constitution. 18 Even constitutional doctrine could be interpreted in various ways - the presence of the emergency powers doctrine in the constitution could facilitate deference to the executive, while a basic structure doctrine could allow judges to subject laws to strict scrutiny. 19 It would, therefore, be more useful to assess the conditions under which a judge might protect or imperil the civil liberties of citizens, including minorities. I. SCALING JUSTICE AND ANTI-TERROR LAWS
In Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights ,20 I argued that judges, who want their judgements to be perceived as legitimate (i.e. principled, objective, and just), have to carve out legitimacy within the scope and opportunities offered by four elements: the presence and content of laws; institutional experience and norms; political configurations; and public concerns. The quest for legitimacy on the part of the judiciary, I argued, increased after a bout of political authoritarianism. I tested the argument through an econometric analysis of cases dealing with civil liberties and social rights (the rights to health and education), outlined the conditions and processes by which one element trumps the others in influencing a judgment, and assessed the implication for the content of the rights. The empirical evidence confirmed that the process of judging involved constant negotiation with multiple identities of a judge—as a member of a state institution that is subject to the influences of the political wings; as a member of a judicial structure with its own norms; and as a citizen-member of society. 21 An econometric analysis of 185 cases (from 1950-2006) - 65 pertaining to preventive detention, and 120 to anti-terror legislation, the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)- demonstrated that in the last six decades, successive Supreme Court judges crafted rulings that would be non-confrontational vis-a-vis 18 Id. 19 Epstein, Ho, King and Segal, supra note 12. 20 SHYLASHRI SHANKAR, SCALING JUSTICE: INDIA’S SUPREME COURT, ANTI-TERROR LAWS AND SOCIAL RIGHTS, (2009). 21 A Supreme Court judge in India tends to be middle class, Hindu, from a professional family, predominantly male, armed with an LLB and some experience as a lawyer for a state government before joining the judiciary.
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the state, while simultaneously supporting the rights of vulnerable groups. A Supreme Court judge typically upheld the petitions of Muslim minorities and other citizens who did not advocate secessionism, supported the state against those espousing Kashmiri separatist ambitions, and in framing a judgment, was more likely to focus on the facts of the case rather than decide on the basis of prior ideological or personal biases. 22 The book concluded that it was apt to call an Indian Supreme Court judge an “embedded negotiator” who had a complex and nuanced relationship with the law, institutional rules, politics, and public concerns. The analysis in Scaling Justice highlighted nuances in judicial behaviour on civil liberties that corroborated and challenged several aspects of existing theories. First, the deference of the court to the other wings of the state is determined less by institutional or constitutional dictates, and more by the nature of the crisis, adding texture to the executive unilateralism position. I compared judgments issued in the years that India was embroiled in a war with those delivered in non-war years, but did not find a significantly different treatment of the accused during wars. 23 The behaviour of India’s Supreme Court (henceforth, SC) during wars does not follow the conventional view that judges would be pro-state during a crisis. A judge seemed to distinguish between two types of threats. Terrorist attacks (rather than wars) evoked more deference to the other wings of the state, but not necessarily at the cost of incursions into the civil liberties of minority groups. A Supreme Court judge was more likely to rule in favour of the state after a terrorist attack than during a war. Why that is so is harder to answer. I had speculated that this was because terrorism’s targets were both citizens and soldiers, which brought concerns of public safety and a citizens’ security to the fore. In contrast, a war is 22
116 judges served on different benches to hear 194 anti-terror cases. Of these, 86 judges heard more than 1 case, and I created a new variable that pertained to this group, and had four subcategories. About 40% of the judges were pro-state 50 to 75% of the time, 19% were pro-state 75 to 99% of the time, 10% were always pro-state, 7% were always anti-state, and 20% were antistate less than 50% of the time. A probit analysis on the characteristics of these judges, like years served, religion, home state, and party configurations du ring their appointments to the higher judiciary, among others was conducted. The only significant finding was that judges who decided larger number of anti-terror cases were more likely to change their mind as compared to judges who decided fewer cases. Neither a probit nor a chi-square test produced any other significant results. Perhaps the statistical results could not pick up variations because these 86 judges may have had too many characteristics in common. 23 These cases involved civilians and pertained to grain hoarding, possession of explosives, and threats to state security, among others.
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usually fought only by soldiers. The court’s view in PUCL v. Union of India24 seems to endorse my speculation. The petitioners, who were civil rights activists, challenged the constitutional validity of POTA. Pointing out that the fight against terrorism was not a regular criminal justice endeavour, but rather a defence of the nation and citizens, the court said that terrorism was a new challenge for law enforcement. It said, “To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws (such as POTA).” Secondly, the analysis revealed that even if the court is deferential to the executive during a crisis, it can protect the rights of minorities under certain conditions, such as in the immediate aftermath of political authoritarianism. The Supreme Court of India, which had failed to safeguard civil liberties during the Emergency from 1975-77, balanced two imperatives – its need for legitimacy in the eyes of citizens, and its desire to avoid overt conflict with the political elite. Questioning the validity of detentions under anti-terror laws would have pitted the judiciary against the other wings of government, and could even have tarred the institution with an anti-national and anti-citizen image—a charge the apex court was trying to reverse in the post- emergency period. 25 Therefore, on the one hand, judges followed the proclivity of the Indian Constitution towards giving the state immense power to discipline and punish recalcitrant individuals. Despite earning the tag of ‘judicial activism’ in the arena of socio-economic rights, there was a noticeable absence of such activism on the rights of detainees under anti-terror laws, and this was consistent with the hawkish position of successive governments that national security trumped civil liberties. On the other hand, they made a distinction between the religious and political affiliations of minorities, and protected those who did not have separatist political goals. Judgments were significantly less likely to favour the state against a Muslim litigant without separatist ambitions, but more likely to support the state when Kashmiri separatists were in the dock. Thus, overall, while the court supported the state’s coercive position (confirming Cover’s analysis of its jurispathic nature), the judges also found ways to oppose the violence of other state organs by scrutinizing cases registered against religious minorities. I assessed the Supreme Court’s attitude towards Muslims charged under preventive 24 PUCL v Union of India, (2003) 4 SCC 399. 25 S.P. SATHE , JUDICIAL ACTIVISM IN INDIA (2002).
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detention, TADA and POTA during those years when India was involved in a war. Judgments were 23% less likely to favour the state when a Muslim accused was involved in a case decided in a war-year, leading one to the conclusion that in a war- related crisis, vulnerable minorities are not more at risk in the legal arena. What of a crisis induced by terrorism? I tested judicial behaviour towards Muslim plaintiffs/defendants after 2001(this year saw the September 11 attack on the World Trade Centre in New York and the December 13 attack on the Indian Parliament), but the small size of the dataset did not allow me to reach a definitive conclusion. Thirdly, the econometric models demonstrated that judicial independence was less of an explanatory variable in the way judges behave on civil liberties. 26 The crisis of legitimacy and the nature of the national crisis were more influential explanations for the court’s judgments. Once such scrutiny was established, judges continued the practice because of institutional (collaboration with colleagues) and legal norms (precedents). In the concluding discussion in Scaling Justice , I had hypothesised that POTA cases would see more pro-state rulings, particularly after incidents of terrorism, but that Muslim minorities would not be unduly targeted. Is my hypothesis supported by the empirical evidence? How has POTA been used, and what are the implications for civil liberties in general and for the civil liberties of muslim minorities in particular? Does the protection for Muslim minorites continue in POTA cases particularly when there is no clear political (separatist) ambition? I will address these questions in the following sections. The Scope of Anti-Terror Laws
India, the world’s most populous parliamentary democracy with “the most powerful court in the world” 27 following the common law system, has a large Muslim minority with a complicated history of strife with the Hindu majority. 26
I took the Second Judges’ case (Supreme court Advocates-on-Record Association and Anr. vs. Union of India, 1993 Supp (2) SCR 659) in 1993 (when the court decreed that the concurrence of the Chief Justice was required in judicial appointments thus minimizing the de jure dependence on the political wings) as the cut-off point and examined the probability of a pro-state ruling before and after 1993. There was very weak corroboration (at the 10% significance level) that post-1993 verdicts were more likely to be anti-state than pre-1993 rulings. 27 George Gadbois, Indian Supreme Court Judges—a Portrait , 3 LAW & SOC’Y REV. 317–36 (1968).
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It has experienced secessionist movements in Kashmir, the North East, and Punjab. Polarization of Hindus and Muslims has increased in recent decades with a resurgence of Hindu nationalism and its ascendance to power in the national and regional arenas. The Indian state has designed a vast panoply of anti-terror and preventive detention laws since independence (see Appendix). POTA included as crimes activities performed with an ‘intent to threaten’ national integrity, and allowed for admissibility of confessions extracted in police custody. The Appendix demonstrates that the definition of actions included in the scope of these laws has grown broader, and that the burden of proof has shifted from the prosecution to the accused, thus impacting negatively on civil liberties of all citizens. More recently, after repealing POTA (which was enacted by the BJP-led National Democratic Alliance coalition), the Congress-led United Progressive Alliance (UPA) government amended the Unlawful Activities Prevention Act (UAPA) of 1967 in 2004 and again in 2008. UAPA 2008 draconised some elements (the definition of intent included “likely to threaten”), reduced the stringency of other elements (detention without bail was reduced from six months in POTA to three months in UAPA 2008, and confessions made during police custody were not to be admissible as evidence), and retained some provisions (e.g. the accused can be in police custody for 30 days). The features retained by UAPA 2008 (drawn from POTA) that civil liberties activists have found troubling included: (i) a vague definition of ‘terrorist act,’ and ‘abetment’ (Section 15); (ii) absence of statutory procedures on including organizations in the ‘terrorist’ list, with the result that the onus of establishing innocence, without knowing the reason for their inclusion, rests with the proscribed organization; (iii) assignment of official immunity to state officials involved in counter-terrorism, which has the effect of impeding the prosecution of officials acting in bad faith (Chapter VII, Section 49), and; (iv) allowing the death penalty for those whose terrorist act shall, ‘if such act has resulted in the death of any person’ (Chapter IV, Section 16a). In the next section, we will assess the impact of the judiciary’s interpretations of POTA cases on civil liberties including the liberties of minority groups. Comparison of POTA, TADA and Preventive Detention cases
First, a descriptive analysis of the POTA cases would be useful. Of the 103 POTA cases in the higher judiciary from 2001 to 2011, about 20% were appealed in the apex court. The High Courts of Gujarat and Tamil Nadu accounted for about 20% (each) of the cases, followed by Maharashtra/Bombay (13%) and Delhi (12%). 111
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In 92% of the cases, the petitioners were non-state, which means that the judgments in the lower courts (trial/special courts) have been overwhelmingly pro-state. Over 80% of the cases dealt with bail, custody, challenge of interlocutory orders and writs, and clarifying the legal position vis-à-vis POTA. Over 70% of the cases were framed by the state as a terror case pertaining to actual and imminent attacks (48%), recovery of arms and funding of terror (23%). Of these, about 37% involved Islamic terror, 19% were Naxal-related, 8% pertained to the LTTE, and about 10% involved communal riots. Table 1: Issues in POTA Cases
Table 2: Judgments in POTA
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A comparison of judgments in preventive detention, TADA and POTA cases reveals the following:28 First, there is a shift away from pro-state rulings after the Emergency i.e. in TADA cases (as compared to preventive detention cases) but a return to pro-state judgments in the POTA cases. The state obtained a favourable ruling in less than half the TADA cases, as compared to over 65% of preventive detention cases and 60% of POTA cases. In Scaling Justice , I argued that after a crisis regime like the Emergency rule of 1975-77 in India, the judiciary recovers public legitimacy by casting itself as a protector of vulnerable groups. 29A judge was 48% more likely to give a pro-accused ruling in a TADA case as compared to preventive detention case, indicating a shift by post-Emergency judges. So what explains the switch to pro-state rulings in POTA? We shall explore some of the reasons for this behaviour shortly. Secondly , in all three sets of cases, Supreme Court judges upheld the right of Parliament to make draconian laws, confirming that the judiciary follows the constitutional emphasis of privileging security over the rights of detenus. 30 Judges interpreted the laws in line with what they saw as the intent of the Constituent Assembly - fundamental rights were hedged in by restrictions imposed on grounds of National Emergency to be determined by the Parliament, and legal rights were suspended in cases dealing with state security. In PUCL v Union of India 31 where the validity of POTA was challenged, the Supreme Court said that the need for the Act “is a matter of policy and the court cannot go into the same, once legislation is passed, the government has an obligation to exercise all available options to 28
Please note that while the TADA and preventive detention cases pertain to the Supreme Court of India, the POTA cases include the judgments of the High Courts and the Supreme Court. 29 The CJI’s opinion in the Habeas Corpus (ADM Jabalpur V. Shivkant Shukla AIR 1976 SC 1207) case (which challenged an emergency law, the Maintenance of Internal Security Act, 1971) in 1976 that the judiciary should abandon all scrutiny of governmental control of individual activities once an emergency was proclaimed, was vilified in the public domain particularly since the Executive had egregiously misused such powers. One of the concurring justices, Chandrachud, who had agreed with the majority view even apologized to the public much later saying that he wished he had had the courage to resign during the trial. See Speech to FICCI on 22 April 1978, Hindustan Times, 23 April, 1978. 30 While special courts or the High Court functioned as trial courts for anti-terror cases, the Supreme Court had the final word on appeals and constitutional challenges to the anti-terror laws. In TADA cases, which were tried by special designated courts, appeals had to be lodged within 30 days in the Supreme Court. 31 PUCL v Union of India, (2003) 4 SCC 399.
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prevent terrorism within the bounds of the constitution. Mere possibility of abuse cannot be a ground for denying the vesting of powers or for declaring a statute unconstitutionally.” Thirdly, the scope of issues to which anti-terror laws have been applied has Ma nohar Lohia v. State S tate of Bihar ,32 the Court expanded over the decades. In Ram Manohar explained the difference between between three concepts: concepts: law and order, public order, and the security of the state by referring to three concentric circles. The largest circle represented law and order, the next represented public pu blic order, and the smallest represented security of the state. 33 The court’s view was that every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect the public order, but not necessarily the security of the state. Anti-terror laws were applicable only to those actions that affected the security of the state. Let us use the court’s yardstick to classify the cases. Using the description in the judgment, we slotted the cases into seven categories. 34 These were village feuds, criminal cases, security of the state, arms and possession of country-made guns without a license, grain hoarding, and possession of explosives unrelated to security threats. The spirit of the law and the apex court’s delineation of the ‘concentric circles’ argument demands the use of a security law only if the person’s actions threatened the ‘security of the state’. About 53% of preventive detention cases cases and 65% of POTA cases pertained to security of the state, compared to only 35% 32 33 34
Ram Mano Manohar har Lohi Lohiaa v. Stat Statee of Bihar, Bihar, AIR AIR 1966 1966 SC SC 740. 740. The Court Court agreed agreed with Lohia Lohia that the the magistra magistrate te wrongly wrongly used ‘public ‘public order’ order’ and ‘law ‘law and order’ order’ synonymously. A threat to law and order, mentioned in detention order, was not the same as public order; hence the order was invalid. I used the the descripti description on of the the case given given by the the judge, judge, thus thus minimizin minimizingg the effect effect of my my own biases biases in the classification. If the judgment said that the case involved a dispu te between villagers that did not threaten the security of the state, it was coded as ‘village feud’. These cases include instances such as confirmation by an eye witnesses that the accused shot a man with an AK-47 gun to take his tractor, or when a man in a village shot his neighbour with a gun for which he did not have a license. Criminal cases were those where the issue was criminal (for example, gang warfare) and the police used anti-terror laws to detain criminals. Cases where the judg ment said involved a threat to the security of the state were coded as ‘security’. Cases involving grain hoarding (usually during a war) were present only in the preventive detention dataset. There were two more categories—possession of arms without a license, and possession of explosives unrelated to security threats (for example, an accidental explosion of firecrackers). Anti-terror laws were supposed to be used for cases in the ‘security of the state’ category.
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of TADA cases. The judge made a distinction (particularly in the TADA cases) between those that dealt with criminal acts— in over 60% of such cases he rejected the use of anti-terror laws—and those that affected the security of the state. In POTA cases on the other hand, the trend seems to have reversed since the judgments of the higher judiciary classified about 60% of the cases as relating to a threat to the security of the state. Other evidence indicates that there is over-use of POTA laws.35 What is also striking is that about a fifth of the POTA cases did not relate to terrorism. It could be pointed out that we live in a more dangerous world and therefore POTA is being used more frequently. I tested to see if the perception that security threats have increased actually reflects reality. As a proxy, the sufficiency of the evidence in cases classified by the th e court as security threat to the state was assessed. Of the forty POTA cases framed by the prosecution as pertaining to the state security, the judiciary found sufficient evidence in only half the cases. This implies three things. First, that the tendency of the prosecution to frame the case as a ‘threat to security of the state’ has risen since over 50% of POTA cases had that rationale attached to them. In Scaling Justice , I had predicted that “if the state prosecution structures the case as involving terrorists or terrorism, the state is more likely to be the winner. Though the dataset on POTA is very small the higher success rate of POTA cases implies a worrying trend for civil liberties, particularly if the shift occurred because the cases were framed as involving terrorist threats to the state.” 36 The prediction has been borne out by the larger dataset. Secondly, the court has not blindly adopted the prosecution’s rationale since in 10 cases (one-fourth) it found insufficient i nsufficient evidence for such a claim. Thirdly, the perception of a threat seems s eems to be exaggerated. What does the comparison tell us about the effect of POTA on the civil liberties of citizens? First, it highlights the fact that in POTA cases, judges have not reduced the scope of over-use of security laws by the police and other authorities. The second implication is that in a ‘security-conscious’ environment, judges interpret 35 The over-use over-use of anti-terror anti-terror laws laws is evident evident in the the gap between between the the numbers numbers arrested arrested and and the ones ones actually tried and then convicted. The findings of three POTA Review Committees revealed that of the 1529 POTA accused, no prima facie evidences was found against 1006, that is, POTA was not applicable to two-thirds of the accused, most of whom were charged in the states of Gujarat and Jharkhand. See SINGH, supra note 1, for an analysis of POTA and TADA and the negative implications for democracy. 36 SHANKAR, supra note 20, at 103.
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the laws in a manner that supports the th e state in the face of security s ecurity threats, however broadly defined. In the TADA and preventive detention cases, there was a 19% increase in the probability of a pro-state outcome when the case pertained to security concerns, while in POTA cases this probability has doubled. This backs the arguments of a ‘conservative’ 37 thrust of the court in its response to challenges to the territorial integrity of the state, and echoes the behaviour behavio ur of judges elsewhere in the world. The third implication is that the civil rights activists are right to charge the police and other authorities with ‘over use’ of anti-terror laws to imprison criminals and others unrelated to terrorism. Such over-use debunks the emphasis by many (such as the th e Malimath Committee) on the need for strong antiterror laws. It also provides a strong stron g rebuttal to those who argue that the magnitude of possible destruction by terrorists necessitates firm and preventive response from the state through intrusive anti-terror legislation. 38 Instead, our findings support the view that such legislation could increase the propensity of state s tate agencies to use these laws to arrest those unconnected with crimes against the state. Several studies and reports by civil rights activists and scholars show the vast slippages between arrests and convictions, the disproportionate arrests of Muslims, and the insidious normalization of these laws by their incorporation into ordinary criminal law. 39 Let us now turn to the effect of judicial interpretations of POTA cases on the civil liberties of minorities, particularly Indian Muslims. II. I MPLICATIONS FOR C CIVIL LIBERTIES OF MINORITIES
In preventive detention and TADA cases examined in Scaling Justice , neither Muslims nor Sikhs were targeted by the judges. 40 India’s Supreme Court judges made a distinction between the religious and political affiliations of the minority 37
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY- VOLUME 1 (4th ed.1991); M.P. J AIN, CONSTITUTIONAL LAW: VOLUME 1 AND 2 (2003); Baxi, supra Baxi, supra note 1. 38 For arguments arguments that that war war on terror terror requires requires surrenderi surrendering ng some civil liberties, liberties, see see Floyd Abrams, Abrams, The First Amendment and the War Against Terrorism, Terrorism, 5 U. P A. J. C ONST. L. 1, 5, 10–11 (2002); Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 11, 25 HARV. J.L. & P UB. POL’Y 441, 441–2 (2002). 39 Anil Kalhan, Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20 COLUM. J. A SIAN L. 93 (2006); T HE T ERROR OF POTA AND O THER S ECURITY L EGISLATION – A REPORT ON THE PEOPLE’S TRIBUNAL ON THE PREVENTION OF TERRORISM ACT AND OTHER SECURITY LEGISLATION (Preethi Verma ed., 2004); S INGH, supra note 1. 40 In Gujarat, Gujarat, the the percentage percentage of Muslims Muslims in the state state was 9%, 9%, but they they made up over over a quarter quarter of all jail inmates. Of the 75 instances of poor circumstantial circumstantial evidence and due process not followed, only a quarter had Muslim litigants. This implies that cases with Muslim accused were not more likely to be dismissed for flimsy evidence.
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litigants, and supported Muslim minorities without separatist ambitions, were anti- Kashmiri separatists, and pro-state after a terrorist crisis (without targeting minorities). More experienced judges were more likely to give the benefit of doubt to Muslim litigants.41 Judges, particularly Hindu judges, shunned majoritarianism and made a distinction between religion, separatism and security of the state, and between Sikh and Kashmiri separatism. 42 A judge was more likely to be anti-state when the litigant had no political affiliation. A judge was 21 per cent less likely to favour the state when a Muslim was the plaintiff or defendant. In cases where the accused was a Muslim (not a Sikh or a Hindu), decisions by a Hindu judge (who comprised 87% per cent of all Supreme Court judges in our database) were 34% less likely to favour the state. TADA cases involving Muslim litigants were 38% lesslikely to be decided in favour of the state, as compared to preventive detention and POTA cases. The models did not display significantly different treatment for Khalistanis. I had suggested that the harsh attitude towards Kashmiri militants could be because unlike Khalistani separatism, which was treated more as a law and order issue and tackled primarily by the police, the historical indeterminacy of Kashmir’s status, the tussle with Pakistan, and the deployment of the Indian army contributed to the perception of Kashmiriyat as a threat to the integrity of the Indian state. In contrast, despite the utilization of the Indian army in Punjab on several occasions including Operations Bluestar and Black Thunder, Khalistani separatism was seen as an indigenous movement. Textual analysis of some judgments after 2000 shows that judges gave the benefit of doubt and weaker sentences to Khalistanis citing the pacification of militancy in the Punjab. Judges reverted to their old attitude of giving the benefit of doubt and weaker sentences to Khalistanis. For instance, the judgment in one case said: 41
42
We ran a similar regression with preventive detention cases, but found no significant results which means that judges deciding the pre-emergency preventive detention cases were neither more nor less likely to rule for the state when a Muslim accused (as compared to Hindus or Sikhs) was involved. Note: Unless otherwise specified, the statistical significance of all the results discussed in the paper have p-values that range between .001 to .05. We examined the judgment and if the judge linked the litigant to Kashmiri, Khalistani, extremism (Naxalite and other forms), then the litigant was coded as having a politica l affiliation. Otherwise, the case was coded as “no affiliation”. This allows us to judge the judges on the basis of their statements without including one’s own opinions. We had information on political affiliation drawn from the judgments for 104 (about 50% of our cases). Of these, 23% had affiliation with Khalistan (Sikh homeland), 24% with Kashmiriyat (Kashmiri homeland).
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Nonetheless, we are inclined to show some leniency in the matter of sentence despite the largeness of the explosive substances involved. This is because the situation in Punjab has now admittedly improved very much and peace has come back to that region. Therefore, it is not necessary in this case to award a sentence beyond the minimum fixed by the statute. We, therefore, reduce the sentence of imprisonment to five years as for each of the appellants. 43 In TADA and preventive detention cases, the higher likelihood of pro-state rulings during single-party majorities did not correlate with an anti-minority attitude of Supreme Court judges. 44 This indicates that a sense of crisis rather than the dominant coalition partner’s ideology influenced the pro-state nature of the judgments. The judges did not target religious minorities even when the political party in power had an ideological anti-minority preference. The BJP-led rule from 1998–2004 coincided with heightened security concerns induced by a low intensity war with Pakistan in Kargil in 1999, nuclear detonations by India and Pakistan in a bid for nuclear power status, and increased terrorist threats from global jihadis and separatist groups. Of the seventy one judgments issued during the NDA rule, 64% were anti-state during 1998–2000, while 70% of judgments were pro-state after 2001. Even in an atmosphere of increased concerns about terrorism by Islamist jihadi groups led by the Al-Qaeda and others after 2001, the Supreme Court of India did not target Muslims. 45 Does this pattern hold for POTA cases? What is POTA’s impact on minorities?
43 44
45
Jeet Singh and Anr v State of Punjab, (2000) 9 SCC 588. Judges were strongly likely to be anti-state during a coalition/minority government as compared to single-party majority rule (Table 4.1, Model 5, Scaling Justice). In 53% of the judgments, the Congress party led the Central Government (either as a single-party majority or as the head of a minority or coalition set up), while the BJP lead a coalition for 44% of the judgments, and other parties for the remaining 3%. A judge was 17% more likely to favour the state when the BJP was in power heading a multiparty coalition at the centre (Model 1, Scaling Justice). This is a puzzling result since judges were more likely to rule against the state during coalition governments. Our results support the view held by scholars that courts will be more willing to scrutinize rights- based cases during coalition rule because of the partisanship and immobilism besetting the elected institutions. See MARTIN EDELMAN, COURTS, POLITICS, AND CULTURE IN ISRAEL (1995). In Scaling Justice , I tested the behaviour of judges towards Muslim litigants after 2001, but found no significantly different treatment of these litigants.
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First, the Muslim minorities who are only 13.4% (2001 Census) of the population, comprise almost 40% of the accused in POTA cases. In about 65% of the cases with Muslim accused, the prosecution framed it as a terror case, and over 80% of these cases were classified as Islamic terror. The state emerged the victor in about 66% of these cases where a Muslim was among the accused, while the corresponding percentage for Hindu accused was 49%. I ran a probit on the characteristics that increased the marginal probability of a pro-state ruling. Cases in the Gujarat HC are more likely to be pro-state than cases in other high courts, while the cases in the Supreme Court are neither more nor less likely to favour the state. However, the religion of the judge and of the accused did not show significance, implying that an anti-Muslim bias is not apparent on the part of the judge, thus continuing the pattern from the earlier TADA and PD cases. Secondly, the state has increasingly framed POTA cases as involving terrorists or terrorism, and the court has agreed with such a framing in about 70% of the POTA cases. This is a departure from the pattern in TADA cases. While judges tend to rule for the state in cases dealing with security threats, the more problematic aspect is the question of what constitutes a security threat since the parliament did not include definitions of ‘terrorism’ and ‘terrorist act’ in the content of TADA and POTA. In TADA cases, the judges used the scope offered by ambiguities in the definitions to dismiss cases but less so in the case of POTA. This could be because of the larger scope offered by the definition of an act that is a threat to the security of the state — intent to threaten in POTA, and intent that is likely to threaten in UAPA 2008 (see Appendix). The large ambit of the definition could be a reason why a majority of the POTA and post-POTA cases are classified by the prosecution and by the court as terror-related cases, as compared to 42% of TADA and preventive detention cases. A more worrying phenomenon in POTA cases (albeit a few), particularly for the Muslim minorities, is that in some instances where the court saw a threat to the security of the state, it was liable to ignore lapses in the procedures and the paucity of evidence and rule in favour of the state. It sends worrying signals for the ‘due process’ aspects of the law in anti-terror cases. Thirdly, we saw in preventive detention and TADA cases that the Court made a distinction between the religious faith of the litigant and political goals of separatism and punished only those espousing separatist goals. Judgments were significantly less likely to favour the state against a Muslim litigant without separatist ambitions, but more likely to support the state when Kashmiri separatists were in the dock. 119
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The problem in POTA is in the way the cases are framed (as Islamic terrorism) and the greater leeway given by the court to the state for some types of framing. Cases framed as ‘Islamic terrorism’ were more likely to receive a pro-state verdict than cases framed as Naxal, LTTE, communal riot and other cases. But the term ‘Islamic terrorism’ is vague and does not carry with it a separatist intent as ‘Khalistan’ and ‘Kashmiriyat’ do. As a result, judges seem less able to make a distinction between the religious and political aspirations of the litigants in POTA cases. CONCLUSION
The profile of POTA cases affirms the claim of civil rights activists that the tendency of the police and the prosecution to classify criminal and other non-security of the state related crimes as “terrorism”, has shrunk the civil liberties of citizens and of vulnerable minorities. The judiciary’s interpretations, which show an increasing propensity to allow more cases under such laws while also diluting the protection of civil liberties, have worsened matters. For instance, the court allows for noncompliance with the requirement for judicial custody at times of ‘urgency’, but the notion of urgency is ambiguous. In Scaling Justice , a cross tabulation suggested that over 60% of the judgments favoured the state when there was a single-party majority government, as compared to only 46% during coalition rule. The econometric results affirmed it; judges were strongly (27%) likely to be anti-state during a coalition/minority government as compared to single-party majority rule. If courts, who make a distinction between a terrorist strike and war, are also more likely to be pro-state after a terrorist attack, the possibility of more pro-state rulings in anti-terror cases is much higher in a political scenario where terrorism occurs during a majority government. The emergence of a majority government led by a party that espouses a Hindutva ideology in a situation of domestic and international attacks by groups claiming to be Islamic, creates a situation of majority party government and a crisis situation. The saving grace is that judges in India’s higher judiciary do not demonstrate an anti-Muslim bias, thus contradicting the general applicability of a theory that judges will be biased towards their own ethnic or religious groups after a terrorist attack. Shayo and Zussman for instance, have found an in-group bias (by Arab and Jewish judges towards their own groups) that is strongly associated with the intensity of terrorism in the vicinity of the court in the year 120
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preceding the ruling. 46 However, the disproportionate numbers of Muslims charged with terrorism and imprisoned (while awaiting trial), the growing scope of antiterror laws and the propensity on the part of the court to ally with the other arms of the state after a terrorist strike do not bode well for civil liberties. While the political ideology of the party in power seemed to be less of a factor in influencing the court’s judgments - the tenor of judgments became more pro-state after 2001, and not after 1998 when the BJP led a coalition government at the centre – we do not have adequate data (cases) to test whether the ideology of the party in power will indeed matter, particularly for the Muslim minority, in a situation when that party runs a majority government and there is an ongoing perception of a national security crisis. The creation of a new National Judicial Appointments Commission in 2015, with representation from the executive, which will be able to play a greater role in appointing the two other non-judicial members, may reduce the ability of the judiciary to withstand political pressure. 47 In the past, the judiciary as an institution was able to stymie such pressure (at least at the entry point) by seizing the power to appoint judges. But it is unlikely to be able to do so anymore. Other factors such as the urge on the part of some judges to garner post-retirement appointments to tribunals and other bodies will continue to complicate the judiciary’s capacity to create a zone of autonomy and impartiality from the political arm of the state. These developments do not bode well for civil liberties in general, and for vulnerable minorities in particular.
46 Shayo and Zussman, Bias in the Shadow of Terrorism, THE QUARTERLY JOURNAL OF ECONOMICS (2011), doi: 10.1093/qje/qjr022. 47 The Commission will comprise the CJI and two senior judges in the Supreme Court, the Union Law Minister, and two eminent personalities appointed by a selection committee with the CJI, the Prime Minister and the Leader of the Opposition. The veto power rests with any two members who disagree with the appointment or transfer of a High Court or Supreme Court judge.
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Appendix Issue
Preventive Detention Act, 1950
Armed Terrorist Prevention Unlawful Unlawful Forces and of Activities Activities Special Disruptive Terrorism Prevention Prevention Powers Activities Act, (Amend(AmendAct, 1958 (Prevention) 2002 ment) Act, ment) Act, Act, 1987 2004 2008
Definition of acts that pertain to this law
With a view to prevent him from acting in any manner prejudicial to (a) the defence of India, relations of India with foreign powers or the security of India; or (b) the security of a state or the maintenance of public order.
Can fire upon (after due warning), search premises and arrest without a warrant for the maintenance of public order, to prevent cognizable offence in areas that it declares “disturbed areas”.
Intent to overawe the Government as by law established or to strike terror or alienate any section of the people or to adversely affect the harmony amongst different sections of the people.
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Intent to Same as threaten POTA. integrity, security or sovereignty of India or to strike terror in the people.
Intent that is “likely to threaten”. Widens the scope and includes offences related to radioactive or nuclear substances and attempts overawe state or public functionaries (similar to TADA).
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Preventive Detention Act, 1950
Bail
30 days to 1 year (on hearing prosecution)
Burden of proof
On prosecution.
Armed Terrorist Prevention Unlawful Unlawful Forces and of Activities Activities Special Disruptive Terrorism Prevention Prevention Powers Activities Act, (Amend(AmendAct, 1958 (Prevention) 2002 ment) Act, ment) Act, Act, 1987 2004 2008
Any 180 days person extendable arrested to a year and taken on public into prosecustody cutor’s and given informato officer tion. in charge of the nearest police station with the least possible delay, together with a report of the circumstance occasioning the arrest. N/A On the accused. Adverse inference drawn if arms, ammuni123
180 days; police custody upto 30 days; charge sheet to be filed in 180 days; no bail for nonIndians who have entered the country illegally.
Detention without bail for upto 90 days; police custody upto 15 days. No blanket denial of bail.
Court to On the draw prosecuadverse tion. inference if arms recovered from the
Detention upto 90 days; upto 30 day police custody; chargesheet within 180 days; blanket denial of bail to nonIndians.
On the accused.
Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
Issue
Preventive Detention Act, 1950
Armed Terrorist Prevention Unlawful Unlawful Forces and of Activities Activities Special Disruptive Terrorism Prevention Prevention Powers Activities Act, (Amend(AmendAct, 1958 (Prevention) 2002 ment) Act, ment) Act, Act, 1987 2004 2008
tion found accused on person or his or prop- fingererty and prints fingerare prints of found at accused on the site them or at of the site of incident crime or if financial assistance granted. Confes- Not sions in admispolice sible custody Special Separate courts advisory board
Not Admisadmissible sible Not Yes under this Act but the Disturbed Areas (Special Courts) Act, 1976.
Admissible as evidence
No special Not provision admissible
May be No. constituted
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FINDING SUBALTERN VOICES: A CASE FOR PRESERVATION OF COLONIAL LEGAL PROCEEDINGS Kriti Sharma *
Colonial courts are seen as places of action for the “two-facedness of colonial law”wherein the British sought to introduce universalist principles of adjudication, such as the ‘Rule of Law’, yet also appeased the native legal conservatives and traditionalists who formed the dominant class. It is realized that in this process the narratives of colonized subalterns- of adivasis, dalits, gender and religious minorities are often found to be lost. In a quest to find their voices and to register their claims, revisiting our legal history is necessary; but has been made impossible due to an inexcusable neglect of legal proceedings documentation. The author provides a detailed firsthand account of the disheartening condition of archival sections in the Bombay, Calcutta and Madras High Courts, which have been witnesses to the legal process in the sub-continent for over a century and a half. A case is then made out for digitization of colonial court records to ensure their longer sustainability for the future and ensuring possibilities for further research.
There is a certain virtue in history. 1 Of course you can quote (or rather misquote) Hegel2 and believe that people and governments have never learned anything from the past. Alas, even by Hegel’s own admission we know this only from the accumulated experience of mankind! The short point being that history should *
1 2
Legal Researcher, Council for Social Development, Hyderabad. Email:
[email protected]. I extend my gratitude to Justice K. Chandru, Prof. Nandini Chatterjee, Prof. Kalpana Kannabiran, Amit George and Prabhat Kumar for their valuable comments on drafts of this piece. The experiences are carved out of research work undertaken between 2012 and 2014 for Prof. David Schorr and Dean Ron Harris, Tel Aviv University, The Buchmann Faculty of Law. I extend a special thanks to Gaganjyot Singh at NL SIU, Bangalore for research assistance provided at the Delhi High Court. The mistakes are all mine. See Jim Phillips, Why Legal History Matters?, 41 VICTORIA UNIVERSITY OF WELLINGTON LAW REVIEW 293 (2010). "What experience and history teaches us is that people and governments have never learned anything from history, or acted on principles deduced from it”. George Wilhem Friedrich Hegel.
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not be ignored, particularly when it has a direct bearing on our legal system and consequently on the State and its people. Our access to the past is greatly dependent on written and oral works, 3 preserved either meticulously or inadvertently, and the only way to ensure our continued learning is by safekeeping our archives. As legal historians, the colonial era is of particular interest due to the continuing impact it has on our legal thought process 4 and the fillip given by subaltern studies, 5 not discounting that these records were tediously preserved by the British. 6 LEGAL DEVELOPMENTS- THE BRITISH AND BEYOND
The common law system that forms the backdrop of India’s existing legal system made its way on to the Indian soil with the advent of the British Empire; to put it more precisely - with the grant of a charter to the East India Company by King George I in 1726. 7 A plethora of legal experiments started soon thereafter and the Indian subcontinent became a “tropical factory of law” 8 as the colonizers went about substantially altering rules, and the lives, of those they had colonized. Today, moving beyond the trajectory of formal law making, there is growing scholarly work on colonial legal developments which attempts to account for the
3
4 5
6 7
8
The archival arenas are greatly expanded by combining vernacular and oral accounts, ‘memories and myths, material realities and rhetorical representations’ which were often not taken into account in earlier historical research. ( See further Charu Gupta, Introduction, in GENDERING COLONIAL INDIA: REFORMS, PRINT , CASTE AND COMMUNALISM 2 (Charu Gupta ed., 2012). Upendra Baxi, Colonial Nature of the Indian Legal System, in SOCIOLOGY OF L AW (Indra Deva ed., 2005). Various colonial legislations and conventions are applicable today in original or modified forms. The ‘Bottom Up Approach’ has led to re-looking the histories of the marginalized- women, dalits, tribals and religious minorities- hitherto unheard and unaccounted for in the dominant view of history. See for instance, Madhav Gadgil & Ramachandra Guha, Ecological Conflicts and the Environmental Movement in India, 25(1) DEVELOPMENT AND CHANGE 101, 105 (1994) on resistance ‘from below’in context of Indian forest law. In 1771 itself the East India Company appointed a ‘Keeper’ specially to preserve records. The British colonial rule thereafter became one of the most documented administrations of the time. It is with this charter that in India common law principles were first formallyintroduced and ‘Mayor’s Courts’ were established in Madras, Bombay and C alcutta. Though, by this time the British colonies had a functioning and intermeshed executive and judiciary and cases were going on appeal to Privy Council. Nandini Chatterjee, Religious Diagnosis: Skinner v. Orde and a Curious Problem of Legal Governance in British Empire , 2 (May 22, 2011) (Working Paper Series) (on file with author).
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colonized and their interaction with the law and its processes. 9 Some of these interesting works challenge our limited archival records; for instance, judgments are not readily accepted as verifiable knowledge on face value. 10 There is increasing literature to suggest that many were in fact modified projections that suited the British politics of that time and place. 11 Rummaging through these and other records gives us an insight into the judicial discourse in the courts of colonial India. We soon discover that such discourse often led to rigid and dogmatic categorization of otherwise more fluid concepts of caste, class, religion, cultural and gender identities that were socially visible. 12 These decisions then served as judicial precedents for future cases in the same jurisdiction on the basis of the stare decisis principle characteristic of the common law system. 13 In this process, several colonial legal misconceptions, for instance criminalization of 9
10
11 12
13
For an example of a subject network that studies the history of the Judicial Committee of the Privy Council, see Nandini Chatterjee, Subjects of Law: Rightful Selves and the Legal Process in Imperial Britain and the British Empire http://translatingcultures.org.uk/awards/researchnetworking-awards/subjects-of-law-rightful-selves-and-the-legal-process-in-imperial-britain-andthe-british-empire/ (last accessed May 5, 2015). There was a notion of fairness which was somewhat prevalent in colonial times perhaps due to lack of affiliation of English judges with village communities and, therefore, assumption of nonbias on caste and class factors. The agendas with which British executive/judicial officers worked with, however, have to be seen. Take the obvious instances such as when “lawyers who participated in the freedom struggle were punished and had their names removed from the bar roll. The cases of detenues” appeals during World War II were dealt with by British judges in a secret manner and records relating to appeals under the Public Safety Act are yet to be explored by historians.” Justice K. Chandru, The High Court of Judicature at Madras at 150, THE HINDU, August 15, 2011. Well illustrated in P REM C HOWDHRY, Fluctuating Fortunes of Wives: Creeping Rigidity in InterCaste Marriages in the Colonial Period, in GENDERING COLONIAL INDIA: REFORMS, PRINT , CASTE AND COMMUNALISM 2 (Charu Gupta ed., 2012). For example: “One such key process for colonial India was the creation, or at least formalization, of extra-local, horizontally conceived, and homogeneously imagined religious communities…However, in spite of their impoverished view of reality, colonial categorization projects did not fail, not only because of their endorsement by overwhelming state power, but also because they were actively embraced as indisputable representations of truth by people.” Nandini Chatterjee, Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial Court, 117 A MERICAN H ISTORICAL REVIEW 1101, 1104-05 (2012). For the historical origins of the stare decisis principle in common law and its criticism, see commentary provided in THE AMERICAN LAW REGISTER, 746-756 (1st. edn., 1886), also available at http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article= 4147&context=penn_ law_review.
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homosexuality14 or non-recognition of marital rape 15 became deeply entrenched in the judicial mindset in this way. Justice A.P. Shah, in NAZ Foundation v. Government of NCT of Delhi 16 traces how legal tests for attracting penal provisions under Section 377 of the Indian Penal Code (which criminalizes homosexuality) “have changed from the non-procreative to imitative to sexual perversity”over time. The religious and ‘ethical’ standards introduced by Macaulay’s Indian Penal Code, whether on homosexuality or marital rape which were exempted in the draft clause by simple “sexual intercourse by a man with his wife is in no case rape”,17 have been further entrenched in the system through policies, cases and practices18 which do not allow for difference and dissent from the ‘normative’. Today, it is indeed necessary to deconstruct case laws and unearth social history to overturn such misconstrued legal positions. The new narratives by scholars therefore seek to give voice to the subaltern litigants of colonial India. DECONSTRUCTING LEGAL HISTORY
Today, scholars look beyond merely what was palatable to the Courts, and further into the intriguing references in plaints, witnesses’ statements, court deeds and other surviving legal and non-legal evidence. 19 The first reference stop is naturally the record of proceedings submitted to the court by litigants’ legal counsels, which 14
15
16 17 18
19
See ALOK GUPTA & SCOTT LONG, THIS ALIEN LEGACY: THE ORIGINS OF “SODOMY”LAWS IN BRITISH COLONIALISM (2008) http://www.hrw.org/sites/default/files/reports/lgbt1208_web.pdf, and Jeremy Seabrook, It’s Not Natural: The Developing World’s Homophobia is a Legacy of Colonial Rule, THE GUARDIAN, July 3, 2004. See MRINALINI SINHA, C OLONIAL MASCULINITY: THE ‘MANLY ENGLISHMAN’ AND ‘THE EFFEMINATE BENGALI’ I N L ATE N INETEENTH C ENTURY, 163-165 (1st edn., 1995), Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women’s Rights in India, 64 WASHINGTON & L EE LAW R EVIEW 1315 (2007), Kalpana Kannabiran, Sexual Assault and the Law, in CHALLENGING THE RULE( S ) OF LAW 80, 81 (Kalpana Kannabiran and Ranbir Singh eds., 2008). NAZ Foundation v. Government of NCT of Delhi, 2009 (160) DLT 277, para 4. Act No. 45 of 1860. The Eunuchs Act, for example, was implemented in various jurisdictions at the turn of 20th century to ‘control’ the eunuchs through police crackdowns. Such laws cause more damage on the ground, forcing communities to go underground and be denied basic right to life, liberty, dignity and privacy. In India, due to poor archival conditions, much reliance is placed on the description of case scenarios given by deciding judges in written judgments reported in law journals, starting fro m the 1st Indian law journal –the Madras High Court Reporter (1861), and newspaper reporting preserved by newspaper archival sections available in libraries and museums. See Justice Kannan, Of Law Reports, Authors and Legislations, JUSTICE KANNAN, BEING NON- JUDGMENTAL (March 17, 2008), http://mnkkannan.blogspot.in/2008/03/of-law-reports-authors-and-legislations.html- for a brief history of legal reporting in India.
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contain all depositions, exhibits and other legal evidence. For this purpose, the archive of the Judicial Committee of the Privy Council in London has full proceedings up to the final appeals starting from the appeal in the case of Manuel De Lima (Madras, 1679).20 However, Privy Council appeals account for only a fraction of the litigation cases fought in the subcontinent during the colonial period. An appeal to Privy Council was neither easy nor cheap; hence it was not a viable option for most Indians. Most of the records lie in the then lower courts of Indian subcontinent, accessing which is a deceptively simple task, given the deplorable condition of our court depositories and the resultant logistical difficulties explained below. Let us take the case of the Calcutta and Bombay High Courts which were designated Supreme Courts in 1774 and 1823 respectively till 1861 21, and then functioned as the highest courts till the creation of a Federal Court via the Government of India Act of 1935. The Calcutta High Court has a Research and Preservation Centre in its Centenary building since 1977, which can be accurately described as a dingy room with broken window panes, serving as an open invitation for pigeon guano over rotting papers piled up in cramped stacks. This privilege is reserved only for case files and judicial records that were admitted during the period when the Calcutta High Court was the Supreme Court (1774-1861); for the time period between 1862- 1950 however, many appellate case records are simply untraceable. 22 The Bombay High Court on the other hand chooses to dump record proceedings of the colonial era in the backrooms of the Small Causes Court situated at Lokmanya Tilak Road in South Bombay (now Mumbai). Though this ‘repository’claims to have electronically operated racks systems, some of these have not been fully repaired since they last went out of order, making any research impossible.23 Similar is the case with the Madras High Court which Justice K. Chandru described as: This High Court started functioning from 1862 and we do not have a proper index as to the availability of records from that date. Rumours go around to the effect that even the original charter establishing the 20 For Privy Council Appeals Data, see Mitch Frass, Privy Council Appeals Data: The First Fifty Appeals from East India Company to the Privy Council 1679-1774, available at http:// angloindianlaw.blogspot.co.uk/p/privy-council-cases-from-india-before.html#data. 21 The Indian High Courts Act, 1861 merged these Supreme Courts along with Sadar Adalats and the three High Courts at Bombay, Calcutta and Madras were established. 22 Author’s notes from the field, p.4 (September 18- September 27, 2013). 23 Author’s notes from the field, p.2 (June 5- June 14, 2013).
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court itself is not traceable. Manually kept records have become motheaten and the papers have become brittle. Further the typed documents are slowly fading away and worse is the computerized printing. We have no qualified persons to look after the records. Even while destroying the records which are of 10 years old, what is preserved is only the original petition and the judgment copy, the other papers annexed to the cases are removed and destroyed. 24 Thus most lamentably, since our courts have been following an indiscriminate policy of destroying a large part of the proceedings, there is little chance of finding complete case records unless someone has kept a private copy. If such is the current state of the High Courts, supposedly ‘courts of record’, one can only imagine the pitiable position of district level archives. 25 Then there are rare private archives maintained by private individuals and institutions, chancing upon which can be a true blue-moon events for scholars. There is of course no accreditation system in place for effective service and sustainability of such private records. 26 To conclude, overall “decades of neglect, underfunding and bad preservation techniques have wrought considerable damage” to these records.27Any excitement at having chanced upon a rare document subsides soon after when the paper crumbles in your hands. 24 25
Private interview pg.4, on file with author. The ultimate responsibility of original and appellate cases is consigned to their respective Registrars or tossed to the Right to Information Cell, in case a query is made. In day-to-day functioning however, it is simply relegated to junior officers of various administrative departments and clerk staff without effective directions. In each of the high courts, a senior judge is responsible for administrative works, of which record preservation is one of the tasks. However, the judges were found to be acutely unaware of the present situation, let alone pro-actively engaging and directing staff on the issue. 26 See Archive Service Accreditation established in United Kingdom for independent evaluation of private and public sector archives. 27 Dinyar Patel, Repairing the Damage at India’s National Archives & India’s Archives: How Did Things Get This Bad, NEW YORK TIMES, March 21, 2012. A similar situation exists in the archives including the National and State Archives and Central Secretariat Library (previously known as Imperial Secretariat Library) which house legislative histories- original laws passed by Governors, draft bills, comments and official notes, reports of commissions and committees, surveys and reports, etc. These archives housed in imperial buildings are extremely underfunded but overstaffed, though very few officers actually understand the legal and historical significance of the documents they are employed to take care of. However, there have b een some good intentioned initiatives by scholars like Mushirul Hasan, Director General of National Archives.
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OUR COMMON FUTURE
“To comprehend the present and move towards the future requires an understanding of the past: an understanding that is sensitive, analytical and open to critical enquiry.”- Romila Thapar, noted Historian 28
The fact that the colonial British government meticulously recorded and preserved vast and valuable legal documents should have made research in court repositories easier for scholars. However, due to the present brittle conditions of the case documents, apart from the apathetic and bureaucratic attitude of most officials, legal scholars are dissuaded from conducting research in India. Even present court records are treated in a similar fashion. As of now, only few high courts have made serious efforts in the last two years to digitize recent case records. 29 The courts still do not allow for transcripts and voice recordings of oral proceedings, citing policy issues.30 The root cause of the problem is that legal history is simply undervalued in the general legal and administrative circles. Very little funding trickles down to the archives department because of general lack of understanding or appreciation for these vital documents. There is then a great reluctance to show records to outsiders including researchers. It seems the Indian universities too (including law schools) are neither active in the preservation of archives nor do they extensively use these archives for their own research. 28 Romila Thapar, In Defence of History, Seminar 2003, (from lecture delivered at Thiruvananthapuram on March 2, 2002) http://www.india-seminar.com/2003/521/521%20romila%20thapar.htm. 29 As part of establishing six model (high) courts in India (A Law Ministry initiative under the Twelfth Plan), at least Delhi and Bombay High Courts have started digitization drive for the present cases, starting last year. It is to be kept in mind that while colonial judgments were written in ink or pencil, the printed typeset used in modern era have shorter life. High Courts are courts of record under Article 215 of the Constitution, yet there is no strict compliance to preservation rules (ironically called rules for destruction of records) which mention preservation of significant case laws avoiding tears (Private interview with Justice K. Chandru, p.3, on file with author). 30 Various Supreme Courts in USA, Australia, UK and Canada provide live feed or audio recording. See DANIEL STEPNIAK, A UDIO-VISUAL COVERAGE OF THE COURTS: A COMPARATIVE ANALYSIS, (1st edn., 2012). In India, in Deepak Khosala v. Union of India, 182 (2011) DLT 208, the Delhi High Court cited lack of legislative policy to deny recording of oral proceedings. Two subsequent PILs in the Supreme Court for recording proceedings have been rejected despite a similar recommendation by the Advisory Council of the National Committee for Ju stice Delivery and Legal Reforms in February 2014. However, on July 15, 2015 the Calcutta High Cou rt allowed audio-video recording of a court room proceeding for assistance of the judges.
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There is a growing interest in digital preservation of historical legal documents in jurisdictions such as the United Kingdom and the United States of America. 31 In India, at the forefront of digitization initiatives is the Delhi High Court which provides digital copies of disposed of cases, appellate or writ, without exception, in its inspection and copy branch. The full legal proceedings, except official notes for cases disposed of since the inception of the court in 1966 till 1997 can be accessed and printed by researchers and litigants alike. To make this possible the digitization process is often outsourced to private corporations 32 and buttressed with a support staff of around 20-25 members. Mr. Girish Sharma, Registrar, who has been involved with the digitization process since its beginning in 2006 informs us that “the initiative is a result of the efforts of the Delhi High Court’s Computer Committee, which was then under the Chairmanship of Justice Madan Lokur. Having so far digitalized around 7 terabytes of data (7-9 crore page files), the Committee’s ultimate aim is to succeed in complete digital functioning of the courtrooms.” Though, the digitization drive was initiated for the purpose of facilitating those connected with the legal process i.e. judges, lawyers and litigants; the Court accommodates independent researchers with their requests for access. The High Court however does not co-ordinate with other archives or high courts for archiving and exhibition purposes. Similar efforts for digitization of colonial records in India and international collaborations would be especially beneficial for Indian researchers and students who cannot easily travel to London or to other repositories in UK and USA. Therefore, at this juncture, a collaborated effort by the Supreme Court, High Courts and the universities to digitize case records of the colonial era is a requisite. Converting the information into a digital format, and ensuring multiple record copies with easy access to them would be a step towards enhancing a better understanding of our developing legal system. It would do us well to not be stuck as the man for whom history is bunk and who, as per the outspoken Texan folklorist James F. Dobie, is invariably as obtuse to the future as he is blind to the past. 31
32
See cataloguing of 9,368 cases decided between 1792-1998 by Appeals to the Judicial Committee of the Privy Council at http://privycouncilpapers.exeter.ac.uk as a pioneering effort in this area. Also see the AHRC research network project referred to in Nandini Chatterjee, supra note 9 and Centre for Imperial and Global History, University of Exeter, http:// humanities.exeter.ac.uk/history/research/centres/imperialandglobal/research/subjectsoflaw/ At present, Ricoh India Limited has been given the responsibility to digitalize cases from 1977 onwards. There are currently 11 e-court rooms at the Delhi High Court premises. With the ultimate aim to convert all courtrooms to e-courts, the digitization section also strives to provide digital copies of new cause lists and pending cases, to the extent possible.
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BOOK R EVIEW CRITICAL INTERNATIONAL LAW: POSTREALISM, POSTCOLONIALISM AND TRANSNATIONALISM1 (Prabhakar Singh & Benoît Mayer eds., 2014) Ashwita Ambast *
The lack of concerted methodological critique is a significant failing of international law scholarship. Critical international lawyers (“the Crits”) aim to question and destabilize the inaccurate assumptions behind international law, which have slowly become deeply entrenched as truths. 2 The Crits believe in the “absence of a central international legal order as an impartial point to which state actors can refer” and in a “mature anarchy in international relations (and) the recognition of states as independent centres of legal culture and significance…” 3 In Critical International Law, Prabhakar Singh and Benoît Mayer bring together different scholars of this post modern tradition who carefully re-envision international law as it stands today. The scholars address three areas that have been systematically neglected in mainstream international law discourse and writing, and thus remain unexplored; post-realism, post-colonialism, and transnationalism. This review will begin with an overview of the articles in the Critical International Law . Subsequently, this review will raise three points of analysis: internal differences in opinions in the book, the role of international law scholars, and the scope of the premise of the book. 1 * 2
3
CRITICAL INTERNATIONAL LAW: POSTREALISM, POSTCOLONIALISM AND TRANSNATIONALISM (Prabhakar Singh & Benoît Mayer eds., 2014) [hereinafter “C RITICAL INTERNATIONAL LAW”]. Ashwita Ambast is a Graduate of National Law School of India University, Bangalore and Yale Law School. For an interesting overview and explanation of what is critical about critical international law, the Afterword to the book is a valuable read: Sébastien Jodoin and Katharine Lofts, What’s Critical about Critical International Law? , in CRITICAL INTERNATIONAL LAW, supra note 1, at 326. Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law, EUROPEAN JOURNAL OF INTERNATIONAL LAW, http://www.ejil.org/pdfs/2/1/2026.pdf.
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Post-realism explores the relationship between international law and international politics.4 The contributions recognise that the international legal order is no longer state-centric; rather, international law is a process of authoritative decision making that need not necessarily stem from the state, and that must, hence, accounts for rules, policies as well as individual state context. 5 Thus, Rossana Deplano criticises the welfarist approach, 6 which argues that “states are the primary actors of international law and bear the responsibility to enter global, welfare maximizing agreements with other states on behalf of their population.” 7 However, despite states taking a backseat, the international order remains governed by prevailing power relations in interesting, new ways. John Morss argues that international law has failed to properly address time and power. 8 For instance, at its inception, Israel did not strictly conform to the Montevideo requirements of statehood but in an interesting interplay of power and time, overwhelming recognition from other states (supplemented by military, economic and political support) became self fulfilling. 9 Similarly, it is argued that the recognition received by Kosovo from other nations after its unilateral declaration of independence gave the Kosovar state otherwise absent legitimacy in the eyes of international law.10 Further, lopsided power relations even impact secondary sources of international law. The powers of modern international tribunals extend far beyond the mere settlement of disputes. 11 However, not all states readily internalise international law, given that the decisions of international courts and tribunals are self referential, often not pro-public, and tend to discriminate between states 4
Prabhakar Singh & Benoît Mayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note 1, at 1, 5. 5 Rossana Deplano, The Welfarist Approach to International Law, in CRITICAL INTERNATIONAL LAW, supra note 1, at 74, 87. 6 This approach is championed by Eric Posner: Eric Posner, International Law: A Welfarist Approach , 73 U. C HIC. L. R EV. 487 (2006). 7 Rossana Deplano, CRITICAL INTERNATIONAL LAW, supra note 1, at 75-77. 8 John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53-55. Morss says that historical change is articulated by international law in paradoxical ways. 9 Id. 10 Daniel Fierstein, Kosovo’s Declaration of Independence: An Incident Analysis of Legality, Policy and Future Implications, 26 B.U. I NT’L L.J., 417 (2009). 11 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL LAW, supra note 1, at 98, 100.
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based on region.12 Even the work of highly influential publicists is mired in competition for persuasiveness, with Western nations retaining stronghold over the manufacturing of international law. 13 The resonating lesson of the first segment is to re-imagine the international order while taking into account power relations. The New Haven School’s policy oriented approach to international law 14 is one such approach that views international law as being “rule by diplomacy”. Although it is believed that the New Haven School tends to fetishize the role of realpolitik, it is true that “the analysis of power within international law, from an international law perspective – rather than the perspective of another discipline, be it ethics, political science, or international relations – is overdue”. 15 POST-COLONIALISM
In the ‘Postcolonialism’ segment, it is argued that international law is complicit in concealing and legitimizing imperialism. 16 The creation of equal states is at the heart of international law; yet, non-European colonized states were not considered equal at all.17 These states were denied sovereignty by Western powers and on gaining political independence, remain marginalized. The failure of the ‘New International Economic Order’, 18 and the coercive influence of Western dominated international institutions like the International Monetary Fund are signs of neoeconomic imperialism. Anghie calls for an alternate analytic framework, a ‘dynamic of difference’, directed at studying how international law relates to colonialism, 19 12 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL L AW, supra note 1, at 113-114, 117. Singh takes the example of international investment law decisions that are overwhelmingly pro-private and discriminatory. 13 Singh, supra note 15, at 118. 14 For more details on the collaboration between Profs. Lasswell and McDougal, see, O. Hathaway, The Continuing Influence of the New Haven School , FACULTY S CHOLARSHIP SERIES, PAPER 834, (2007), http://digitalcommons.law.yale.edu/fss_papers/834. 15 John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 65. 16 Antony Anghie, Towards a Postcolonial International Law, in CRITICAL I NTERNATIONAL L AW, supra note 1, at 123. 17 Antony Anghie, Towards a Postcolonial International Law, in CRITICAL I NTERNATIONAL L AW, supra note 1, at 123, 129. 18 By which developing countries sought to assert control over their natural resources. 19 Antony Anghie, Towards a Postcolonial International Law, in CRITICAL I NTERNATIONAL L AW, supra note 1, at 123, 130.
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and which approaches international law as a problem of order between different cultures.20 Human rights historiography is symptomatic of Anghie’s observations. The existing human rights historiography is Eurocentric,21 fallaciously placing the crisis of modernity at the Holocaust 22 when the crisis of modernity in reality began at its birth. Rationalism, modernism and the accumulation of wealth have consistently bred a dark side of slavery, genocide and dispossession. 23 Evidence of the crisis of modernity that do not find a place in modern historiography include the conquest of America,24 the genocides in Cambodia, Rwanda and Bosnia that challenge the consequence of the UDHR and the wide exploitation and violence perpetrated in colonies.25 To attain universal appeal, “human rights need to be located in a wider historical and geopolitical context”, and be recontexualised to include five centuries of colonial genocide.26 Upendra Baxi 27 has proposed an alternative historiography: Human rights are not a gift from the West. Baxi proposes a history from below where the original authors of history are people in struggles. 28 Baxi thus aims to close the “yawning gap” between theory and activism. 29 Toufayan believes that 20 Antony Anghie, Towards a Postcolonial International Law, in CRITICAL I NTERNATIONAL L AW, supra note 1, at 123, 134. 21 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143. 22 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143, 147. 23 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143, 156, 163. 24 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143, 154. Barreto substantiated this with Marx’s example of the primitive accumulation of capital. José-Manuel Barreto, A Universal History of Infamy, inCRITICAL INTERNATIONAL LAW, supra note 1, at 143,163. 25 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143, 149-151. 26 José-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra note 1, at 143, 166. 27 Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 175. 28 Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 174. 29 Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 169-170.
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Baxi’s work falls short methodologically, specifically in explaining how to make human suffering legible in discussions about international human rights. 30 The lopsided narrative has limited access to human rights to a select few by the installation of personal and geographical limitations. 31 ‘Big’ states have disclaimed responsibility for external actions by using strategies such as offshoring human rights violations, as in the case of Guantanamo Bay, 32 using the lack of citizenship to limit the rights available to victims as in Hamdi,33 and by exploiting the need for establishing ‘effective control’ as required by Bankovic.34 To be sure, the ‘Magic Circle’ of rights is expanding. The enforceability of international human rights law against a state has moved from being predicated on nationality and allegiance or territory and ‘jurisdiction’, to the more modern “power and authority” test. 35 Milanovic has proposed a more extensive test, whereby states are required to ensure negative rights to all individuals and positive rights to those within their effective control. 36 However, Mayer makes the case for the absence of any conditionalities on the applicability of human rights. 37
30 Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 183. Not only is Baxi equivocal about the politics of the historian’s use of past human suffering for the future of human rights, he is also unable to justify whether the grassroots voice is relevant to human rights decisionmaking. Moreover, left unaddressed are the methodological dangers of a history from below which can include issues of agency, representation and the creeping in of unwarranted assumptions and omissions. Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 184. 31 Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 199. 32 Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 206. 33 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004); Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 203. 34 Bankovic v. Belgium 2001-XII Eur. Ct. H.R. 890; Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 210. 35 Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 202, 207: The power and authority test includes cases where a state has de facto and de jure control over an event. 36 Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 215. 37 Benoît Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 216.
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Judge Philip Jessup characterised transnational law being as “all law which regulates actions or events that transcend national frontiers…[including] [b]oth public and private international law…[plus] other rules which do not wholly fit into standard categories.”38 The growth of a self-sufficient system of adjudication of international investment law is a product of transnationalism. Uruena explains that although arbitral awards do not bind later tribunals, precedent is widely used in international investment law.39 To explain the legitimacy of this system, Uruena likens it to a model of global governance where collective expertise is introduced to remedy the failure of municipal laws to protect the interests of investors. 40 Prior investment awards are the only reliable source of remedying this failing. 41 Thus, the legitimacy of the system derives not from state sovereignty, but from principles of global governance. Similarly, while conventionally, human rights obligations derive from state consent, a transnational framework also allows for the creation of new entitlements by placing reliance on novel sources. The human right to water does not constitute a positive international law, as custom is silent and conventions only call for progressive realization. 42 Owen McIntyre states that the rights and obligations of actors such as individuals, corporations, vulnerable communities, investors, and state agencies can be garnered from transnational regulations using the Global Administrative Law framework, akin to administrative law questions. 43 Closer study reveals that the principles relating to universal access to water as articulated 38 Harold Koh, Why Transnational Law Matters, 24 PENN STATE INT’L L. REV. 745 (2006). To borrow Prof. Harold Koh’s definition: “[t]ransnational law represents a hybrid of domestic and international law that has assumed increasing significance in our lives.” 39 Rene Uruena, Of Precedents and Ideology, inCRITICAL INTERNATIONAL LAW, supra note 1, at 276, 280. 40 Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276, 293-301. 41 Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276, 301. 42 Owen McIntyre, The Human Right to Water as a ‘Creature’ of Global Administrative Law, in CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 259. 43 Owen McIntyre, The Human Right to Water as a ‘Creature’ of Global Administrative, in CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 250.
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by a variety of non-state actors and institutions reflect accountability, participation, predictability, and transparency. 44 Other non-conventional governance institutions are constantly posing challenges to international law. 45 How should modern international law be visualised? Should a plural approach that appreciates non-state actors functioning as norm setting agencies be taken, or should a state-centric constitutional approach be adopted? As of now, there are no clear answers. The European Court of Human Rights in Behrami46 took a constitutional approach by upholding the member states’ obligations under the United Nations resolution over European Union obligations. On the other hand, in Kadi,47 a plural approach was taken, as the European Court of Justice by providing judicial review over a Security Council Resolution. Singh and Kubler conclude that both constitutionalism as well as pluralism are necessary to maintain the delicate transnational fabric: the former to “ensure the legitimacy of the international legal order in the face of fragmentation” and the latter to “curtail the hegemonic intent that international law’s makers…might have.”48 The tussle between the power of the state and that of new fangled international institutions is also apparent in the development of the “international man”. An international civil service comprising of individuals who owed allegiance only the international order was first visualised when the League of Nations was established. 49 However, the international man failed to materialise. Not only was the field far from representative (positions were overwhelmingly filled by elite Anglo-Saxon men)50, the vision of cultivating the fine balance between a strong international 44 Owen McIntyre, The Human Right to Water as a ‘Creature’ of Global Administrative, in CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 257, 275. 45 Prabhakar Singh and Benoît Mayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note 1, at 1, 5. 46 Behrami and Behrami v. France and Saramati v. France, Germany and Norway Joined App Nos. 71412/01 & 78166/01. 47 CFI Kadi Case T-315/01. 48 Prabhakar Singh and Sonja Kubler, Constitutionalism and Pluralism, in CRITICAL INTERNATIONAL LAW, supra note 1, at 304, 304. 49 Frédéric Megret, The Rise and Fall of International Man, in CRITICAL INTERNATIONAL LAW, supra note 1, at 223 50 Frédéric Megret, The Rise and Fall of International Man, in CRITICAL INTERNATIONAL LAW, supra note 1, at 223, 233.
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orientation with national foundations (“a rooted rootlessness” 51 ) was hard to achieve. SOME POINTS OF ANALYSIS
The contributions in Critical International Law are divided on a number of subjects. Non-state actors are treated by McIntyre as being legitimate members of global governance mechanisms with the capacity to create administrative norms. Uruena paints a vivid picture of international investment arbitrations as being legitimate, self referential systems created by non-state, ad hoc arbitral tribunals. Singh, on the other hand, is more sceptical about self referring international courts and tribunals and even authoritative publicists becoming agents of legitimacy as he believes that there may not be “enough political will among states…to transnationalize”.52 On occasion, these might even turn into opportunities for the unwarranted exercise of private power, 53 or for errant behaviour such as the invention of international law particularly by dominant Western sovereigns. 54 Thus, while one group of scholars sees legal pluralism and the growth of nonstate actors as a reality with benefits, others believe that when power imbalances permeate to these non-state actors, there is cause for concern. Constitutionalism, too, is a contested notion. The overwhelming approach of the authors is to question the established system of international norms. Anghie’s postcolonial critique strikes at the core of the system of international law itself, attacking its biased constitution. However, Singh and Kubler’s contribution looks at the benefits of constitutionalism as maintaining framework for the international legal order. By and large, all contributions see value in the existence of an international legal order. This emerges as a central challenge: reshaping the foundation of international law while retaining its functionality.
51 Frédéric Megret, The Rise and Fall of International Man, in CRITICAL INTERNATIONAL LAW, supra note 1, at 223, 232. 52 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL LAW, supra note 1, at 98, 112. 53 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL LAW, supra note 1, at 98, 116. 54 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL LAW, supra note 1, at 98, 118.
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Interestingly, Critical International Law indicates a dynamic role for scholars as bearing the ultimate burden of reforming the international order. Saberi acknowledges the professional image of the international law as being a dis tinctive contribution of the New Haven School. 55 The international scholar is envisaged as an activist lawyer “at the service of human dignity” 56 who participates in different phases of the legal process 57 and influences perspectives by communicating ideologies.58 Similarly, in an attempt to break Western hegemony in the realm of highly acclaimed publications as a source of international law, Singh calls for all nations to invest in their international law intelligentsia who may then create scholarship from their national perspective that can influence the direction taken by international law. 59 Toufayan’s piece describes the ‘historiographical turn’ that encompasses a “growing need on the part of international lawyers to review (even to confirm) the history of international law and to establish links with the past and present”.60 Thus, critical international law is raising the bar for international law scholars by introducing new ethical dimensions to scholarly research. In assessing whether international scholars are capable of performing this role, Saberi cautions against the dangers of unconditional faith in a class of persons, 61 and alerts readers to the fact that questions of what kind of political behaviour can be considered acceptable are subject to much political and historical debate that international scholars may be unable to agree upon or to resolve. 62 Perhaps the potential of scholarship from different parts of the world to influence and correct the prevailing vision of international law is for time to tell.
55 Hengameh Saberi, Descendents of Realism, in CRITICAL I NTERNATIONAL LAW, supra note 1, at 29, 52. 56 Hengameh Saberi, Descendents of Realism, inCRITICAL INTERNATIONAL LAW, supra note 1, at 29, 31. 57 Hengameh Saberi, Descendents of Realism, in CRITICAL INTERNATIONAL LAW, supra note 1, at 29, 42 including: intelligence, recommendation, prescription, invocation, application, termination, and appraisal. 58 Hengameh Saberi, Descendents of Realism in CRITICAL INTERNATIONAL LAW, supra note 1, at 29, 43. 59 Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in CRITICAL INTERNATIONAL LAW, supra note 1, at 98, 119. 60 Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 170.
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A prime criticism levied against the Crits has been that their critique is chiefly deconstructive. 63 Critical International Law aims to “reflect the many ways in which critical scholars think about international law”. 64 Is the premise of this book too limited and should the book address the implementation of the paradigms proposed by the Crits as well? While Anghie makes a strong point regarding the manner in which imperialism has shaped and continues to shape international law,65 he is silent on how this realisation can be utilized to impact current international lawmaking. Can raising caution regarding the colonial overtones of international law alter and inform international negotiations, decision-making or the drafting of treaties? Can revealing the imperial proclivities of jurists 66 adversely affect the authority of their word on international law? What is the consequence of Western powers acknowledging the historically lopsided nature of international law and what amends can they make? On similar lines, while Barreto’s call for a “recontexualization of human rights” is pressing and convincing, it is not supplemented by the parameters of the recontextualization. Accounting for the vast experience of colonialism is no small task, and is fraught with complex methodological concerns. Further thought on who is responsible for recontexualizing the history of international law, and how, would be welcome. The Afterword also notes that the Crits have been accused of “remain[ing] at arm’s length from the more practical concerns of their discipline”. 67 While Morss has a convincing critique of the paradoxical ways in which power is understood 61 Hengameh Saberi, Descendents of Realism, in CRITICAL I NTERNATIONAL LAW, supra note 1, at 29, 46. 62 Hengameh Saberi, Descendents of Realism, in CRITICAL I NTERNATIONAL LAW, supra note 1, at 29, 48. 63 The Afterword to Critical International Law notes that “[o]f particular concern is the failure of many critical international scholars to effectively, explicitly reflect on what comes after their structural critiques”. SébastienJodoin and Katharine Lofts, What’s Critical about Critical International Law, in CRITICAL INTERNATIONAL L AW, supra note 1, at 326, 334. 64 Prabhakar Singh and BenoîtMayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note 1, at 1, 5. 65 Antony Anghie, Towards a Postcolonial International Law in CRITICAL INTERNATIONAL LAW, supra note 1, at 123, 140. 66 Antony Anghie, Towards a Postcolonial International Law, in CRITICAL I NTERNATIONAL L AW, supra note 1, at 123, 142. 67 Sébastien Jodoin and Katharine Lofts, What’s Critical about Critical International Law, in CRITICAL INTERNATIONAL LAW, supra note 1, at 326, 334.
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in international law, the solution proposed is to ‘take apart’ statehood and selfdetermination and create a new account that will make legal sense of legitimacy. 68 The effectuation of this solution is obscure. Can the genesis of states that were contested at their inception be questioned today on theoretical grounds? If so, what are the consequences of a historical case of self-determination being illegitimate under the new paradigm of analysis? As it stands, united by the loose common thread of “thinking critically”, and approaching international law from three powerful vantage points, the novelty and richness of perspectives presented in the compilation make Critical International Law a compelling read.
68
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 72.
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