Abstract
Judging by these two books, the sociology of law in India has come a long way from its early concerns with colonial legal codification of personal law and village dispute resolution mechanisms. Both these engagingly written texts effortlessly scale the distance between grievances on the ground and the manner in which they are adjudicated in the Supreme Court. Whereas Parmar looks at the intersection of alternative lifeworlds (adivasi vs formal legal understandings), Bhuwania looks at the intersection of the formal and informal within the official legal system. Both raise for the reader larger questions of procedure, the role of lawyers in framing arguments, class bias, and understandings of the environmental and social in the operations of the law. Both texts also speak to each other in a productive manner; perhaps Parmar’s doing more to challenge Bhuwania’s than vice versa even though it was published earlier.
Parmar’s monograph focuses on the now-famous Plachimada struggle in Kerala which pitted villagers, especially adivasis, and the local Perumatty panchayat against the multinational Coca-Cola company, which was depleting and despoiling groundwater reserves. She looks at how the dispute began—with adivasi villagers experiencing changes in their water, connecting this to their long history of dispossession—and goes on to look at how various organisations and activists joined the struggle, displacing the original adivasi concerns. The dispute then moved to the High Court (HC) and Supreme Court (SC), becoming one about the panchayat’s rights to cancel the company’s lease. In 2017 (after the book was published), the SC dismissed the case after Coca-Cola submitted that it had no intention of restarting its plant, which had been lying dormant since 2004. Some of the significant questions the book (as well as the litigation) raises, such as property rights in groundwater, who decides on the agriculture/industry trade-off, local government control over natural resources, the responsibility to pay for pollution, etc., were thus never tested formally. It is, therefore, even more important that we have this careful documentation of the issues involved as well as the social and legal contexts in which they are embedded.
Parmar’s focus is on legal pluralism, which she understands as ‘the simultaneous co-existence of multiple normative worlds, with the state being only one among other creators of legal meaning’ (p. 9). Since all law is narrative, the stories told by adivasis in their villages are as significant as the stories told by lawyers in formal court rooms. Parmar goes to great pains to tease out the multiple adivasi narratives of place and belonging which give support to their practical assertion of rights (and which, one might argue, eventually won the battle). Hard-nosed practitioners of the formal legal system, however, refuse to accept these as anything more than social accounts, arguing that ultimately it is the court or formal legal system’s acceptance or rejection of social beliefs and practices that gives the latter the status of law. The debate between legal pluralists and centrists will go on, with the former pointing to the empirical evidence of multiple norms in the context of imposed colonial systems, as well as at different levels of the formal legal system itself. The centrists insist that these should be clubbed under normative pluralism instead.
Bhuwania’s work steers clear of any such worries, holding up an implicit golden standard of formal legal rationalism as the measure by which he appraises the alleged debasement in procedure represented by Public Interest Litigation (PIL). This standard has never existed—not only because of legal pluralism or the iron cage of proceduralism but even more because of the indeterminacy at the very heart of all adjudication (the basis of much jurisprudential writing). Yet this is something that Bhuwania does not engage with.
Bhuwania’s book is important, however, precisely because of the clarity with which he stakes out a position on PIL. The book provides plenty to argue with, if not to agree with. He examines a series of environment-related cases which benefitted the urban bourgeois environmentalist and adversely affected the working poor: the Delhi Vehicular Pollution case which insisted that all public transport must adopt CNG while leaving private transport untouched, the PIL that led to the removal of industries from Delhi’s precincts, the ‘sealing case’ which took on commercial units in residential areas and the PILs which enabled the HC to demolish urban slums. On the basis of these, he concludes that the issue is not of a rightward shift in the Court’s ideology in the post-liberalisation period (as several commentators have argued) but of the laxity of ‘procedure’, the very thing that PILs are celebrated for.
Bhuwania deploys his material to show how lawyers and judges used PILs to push for their own predilections. He argues that PIL (which speaks in the name of the poor and disadvantaged) paradoxically enables the system to ignore petitioners. He also shows how the system of passing creeping interim orders is used to effectively take over governance and how star lawyers and amicus curiae who outlast individual judges play an influential role in determining judicial outcomes. The problem with Bhuwania’s argument is that he uses a skewed set of cases—one where the judges and lawyers were personally invested as citizens of the national capital, and where both procedure and equality were violated—to make a wider argument about PILs. There are plenty of PILs which drag on for years with no resolution or justice, and where there is no relaxation in procedure. In the Salwa Judum case for example, involving Fundamental Rights, the Court has resolutely refused to set up a monitoring committee of its own which would have ensured compliance with its orders, putting the onus instead on petitioners to produce evidence in an extremely uneven playing field.
On the other hand, ‘procedure’ has been the bane of the Indian legal system, with endless adjournments, rights to appeal, etc., dragging cases on for decades, and being routinely used by the powerful to their advantage. PILs, which occupy a miniscule portion of the court’s dockets, have not made it worse. It is true, as Bhuwania argues, that relaxation for a particular class of cases or the hiving off of cases to tribunals to speed up justice enables the Court to ignore the need for systemic reform of the whole. The procedural is indeed political, as Bhuwania says, but he falls short of a critique of procedure in the Indian courts as a whole, reserving his ire for PIL procedure.
The irrelevance of petitioners is not restricted to PILs; even in celebrated judgements like Kesavananda Bharati, as TR Andhyarujina has shown us, what mattered was negotiation within the judiciary and between the court and government; the petitioner had nothing to do with it. Parmar’s present work also illustrates beautifully for us how this sidelining of petitioners takes place, and how important it is for lawyers and others to infuse the affected peoples’ concerns back into their narrative. Both the Plachimada and Kesavananda cases, it must be noted, were not PILs. Legal anthropologists such as Kidder, Morrison, Cohn and others have also described, albeit at the level of district courts, the fraught relations between clients and their lawyers, with the former always worried about whether their lawyers are really representing them, how people use the law courts to pursue extra-legal ends, etc. While there may be distinct differences in the levels of the judicial system, they are not hermetically sealed as far as these cultural-legal processes go.
At one level, both Parmar and Bhuwania fail in what they set out to do. Parmar, with her sensitive analysis of adivasi lifeworlds, is unlikely to convince lawyers and judges to rethink their practices, and Bhuwania fails to prove his case that putting PILs to rest will clear the way for some golden standard of procedure. Those who want to abolish PILs for other, especially conservative, reasons may well use this book as a handy weapon, but this may not be what Bhuwania wanted. However, both books succeed fantastically at another level—bringing a wealth of empirical detail, and insight into the working of the Indian legal system and connecting this to wider theoretical debates within the sociology of law. Both deserve a wide readership.