Human Rights in India (Routledge Research in Human Rights Law) [1 ed.] 0367178591, 9780367178598

This volume presents an integrated collection of essays around the theme of India’s failure to grapple with the big ques

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Table of contents :
Cover
Half Title
Series
Title
Copyright
Contents
List of contributors
Preface
Part I
1 Civil liberties in the early constitution: the CrossRoads and Organiser cases
2 The constitutional politics of judicial review and the Supreme Court’s human rights discourse
3 Securing rights, protecting the nation?: national security and the Indian Supreme Court
4 India’s parallel justice systems: engaging with Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats through human rights
Part II
5 Unconstitutionalising India’s death penalty
6 Gujarat 2002: refracted memories, inadequate images
7 Lesbian, gay, bisexual and transgender human rights in India: from Naz Foundation to Navtej Singh Johar and beyond
8 Acid attacks in India: the case for state and corporate accountability for gender-based crimes
Part III
9 The right for rights: the lawful and the lawless in India
10 India’s Forest Rights Act: righting indigeneity, subverting property
11 The human right to water: a testing ground for neoliberal policies
12 Realising human rights obligations of the World Bank in India: a human rights critique of the World Bank Country Partnership Strategy for India (2013–2017)
Index
Recommend Papers

Human Rights in India (Routledge Research in Human Rights Law) [1 ed.]
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“India’s Courts have developed an enviable human rights jurisprudence admired throughout the world. At the same time, it has a questionable human rights record on ground realities. This is not a dichotomy but, like so many nations, India has a bi-focal ability, to perceive the ground realities as a state of ‘being’ and its normative jurisprudence as a state of ‘becoming.’ This anthology does not seek to expose but remind us of this mighty dissonance. Perhaps, some- but, not all- courts, were more vigilant in their concerns to evolve a masterly jurisprudence despite the compromises inherent in India’s Constitution. Even so cruel human rights absurdities persisted. These essays take us to national security massively trumping rights, the parallel ‘legal’ system of khap panchayats (caste communities) severely punishing people, the legal mimicry of the Gujarat and other riots, the increasing lawlessness, acid attacks, forest rights, the wayward law on death penalty, the water crisis and the shadow of the World Bank on India’s economy. I put this book down with a sadness that I had reached the end, but sprited by the hope that more books like this will be written.” Dr Rajeev Dhavan Rajeev Dhavan acted for the Sunni Waqf Board and the other Muslim parties in the Babri Masjid land dispute, and is a Senior Supreme Court Advocate and Human Rights activist in India

Human Rights in India

This volume presents an integrated collection of essays around the theme of India’s failure to grapple with the big questions of human rights protections affecting marginalized minority groups in the country’s recent rush to modernization. The book traverses a broad range of rights violations from gender equality to sexual orientation, from judicial review of national security law to national security concerns, from water rights to forest rights of those in need, and from the persecution of Muslims in Gulberg to India’s parallel legal system of Lok Adalats to resolve disputes. It calls into question India’s claim to be a contemporary liberal democracy. The thesis is given added strength by the authors’ diverse perspectives which ultimately create a synergy that stimulates the thinking of the entire field of human rights, but in the context of a non-western country, thereby prompting many specialists in human rights to think in new ways about their research and the direction of the field, both in India and beyond. In an area that has been under-researched, the work will provide valuable guidance for new research ideas, experimental designs and analyses in key cuttingedge issues covered in this work, such as acid attacks or the right to protest against the ‘nuclear’ state in India. Satvinder Juss is a Professor of Law at King’s College London and a Barrister.

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Human Rights in India Edited by Satvinder Juss

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Satvinder Juss; individual chapters, the contributors The right of Satvinder Juss to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Juss, Satvinder S. (Satvinder Singh), editor. Title: Human rights in India / [edited by] Satvinder Juss. Description: New York : Routledge, 2019. | Series: Routledge research in human rights law | Includes bibliographical references and index. Identifiers: LCCN 2019032778 (print) | LCCN 2019032779 (ebook) | ISBN 9780367178598 (hardback) | ISBN 9780367178604 (ebook) Subjects: LCSH: Human rights—India. | Civil rights—India. | Minorities—Legal status, laws, etc.—India. | Equality before the law—India. Classification: LCC KNS2095 .H8595 2019 (print) | LCC KNS2095 (ebook) | DDC 342.5408/5—dc23 LC record available at https://lccn.loc.gov/2019032778 LC ebook record available at https://lccn.loc.gov/2019032779 ISBN: 978-0-367-17859-8 (hbk) ISBN: 978-0-367-17860-4 (ebk) Typeset in Galliard by Apex CoVantage, LLC

Contents

List of contributorsix Prefacexi PART I

1

  1 Civil liberties in the early constitution: the CrossRoads and Organiser cases

3

ARUDRA BURRA

  2 The constitutional politics of judicial review and the Supreme Court’s human rights discourse

37

RAJGOPAL SAIKUMAR

  3 Securing rights, protecting the nation?: national security and the Indian Supreme Court

59

SURABHI CHOPRA

  4 India’s parallel justice systems: engaging with Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats through human rights

80

SIDDHARTH PETER DE SOUZA

PART II

103

  5 Unconstitutionalising India’s death penalty

105

SATVINDER JUSS

  6 Gujarat 2002: refracted memories, inadequate images OISHIK SIRCAR

125

viii  Contents   7 Lesbian, gay, bisexual and transgender human rights in India: from Naz Foundation to Navtej Singh Johar and beyond

152

ROBERT WINTEMUTE

  8 Acid attacks in India: the case for state and corporate accountability for gender-based crimes

179

SITAL KALANTRY AND JOCELYN GETGEN KESTENBAUM

PART III

205

  9 The right for rights: the lawful and the lawless in India

207

RAMINDER KAUR

10 India’s Forest Rights Act: righting indigeneity, subverting property 

230

RAJSHREE CHANDRA

11 The human right to water: a testing ground for neoliberal policies

253

PHILIPPE CULLET

12 Realising human rights obligations of the World Bank in India: a human rights critique of the World Bank Country Partnership Strategy for India (2013–2017)

272

BHUMIKA MODH AND UMA MAHESH SATHYANARAYAN

Index297

Contributors

Arudra Burra is an assistant professor in the Department of Humanities and Social Sciences at the Indian Institute of Technology-Delhi (IITD). His research interests are in moral and political philosophy as well as in Indian constitutional history. Rajshree Chandra is an Associate Professor at the Janki Devi Memorial College, University of Delhi, and a Senior Visiting Fellow, at the Centre for Policy Research in New Delhi. Surabhi Chopra is an Associate Professor at the Faculty of Law, Chinese University of Hong Kong, researching national security laws, sectarian violence, and the socio-economic rights of the poor. Philippe Cullet is Professor of International and Environmental Law, SOAS University of London, and a Senior Visiting Fellow, Centre for Policy Research, New Delhi. Siddharth Peter de Souza is Founder of Justice Adda, a legal design social venture. He is a PhD researcher at the Humboldt University of Berlin, where he works on the politics of legal indicators and their application and use in plural legal systems. Satvinder Juss is a Professor of Law at King’s College London and a Barrister. Sital Kalantry is a Clinical Professor of Law, a Director of the International Human Rights Policy Advocacy Clinic, and Co-Director of the Migration and Human Rights Program at Cornell Law School. Raminder Kaur is a Professor of Anthropology and Cultural Studies in the Departments of Anthropology and International Development, at the School of Global Studies, at University of Sussex. Jocelyn Getgen Kestenbaum is Assistant Clinical Professor of Law at the Benjamin N. Cardozo School of Law, Director of the Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, and Faculty Director of the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR).

x  Contributors Bhumika Modh is an Assistant Professor, School of Law, Alliance University, India and Lok Sabha Research Fellow at the Speaker’s Research Institute Cell, Parliament of India. Rajgopal Saikumar, trained in law and humanities, is currently a Doctoral Candidate at New York University. Uma Mahesh Sathyanarayan is Program Director, Advisor to Chancellor, School of Law, Alliance University and Doctoral Scholar at NLSIU, India. Oishik Sircar is Associate Professor, Jindal Global Law School, India, and an associate member of the Institute for International Law and the Humanities, Melbourne Law School, Australia. Robert Wintemute is a Professor of Human Rights Law at King’s College London.

Preface

Human rights in India This timely book aims to grapple with the big questions that confront India, from rights of minorities to gender equality and from security concerns to the failure to tackle human trafficking. The is human rights broadly speaking, but it also includes government and judicial short-comings as well as key policy failures. Written by both eminent and emerging scholars from across the world, the chapters in this book show how the rush to modernisation of recent years has exposed failings and shortcomings in critical areas, and in this respect the choice of subject-areas by the contributors takes up big themes, including torture and fair trials. Part I of this compendium consists of four chapters. It begins with Arudra Burra, who considers censorship in India in the contest of tensions between the ideal of civil liberties on the one hand, the social and economic reform in the modern Indian state, on the other. Civil libertarians, he argues, are ambivalent about the proper limits of state power so that civil liberties arguments are often are invoked in a “sectarian” or partisan way, leaving a great deal of discretionary power to local authorities. Rajgopal Saikumar discusses how the judiciary’s articulation of human rights has been shaped by public interest litigation (PIL), and this is why human rights law has emerged in distinctive way it has in India. Surabhi Chopra takes this further in her chapter on national security. She argues that given India’s tradition of “public interest litigation,” where widespread failures of governance are tackled by concerned citizens rather than direct victims of the harms alleged, two cases where the Supreme Court reviewed security policies, are noteworthy. One, Nandini Sundar, involved indiscriminate violence by police against radical-left insurgency in Chhattisgarh, the other, “EEVFAM”, involved extra-judicial executions by the armed forces in Manipur. Siddharth de Souza considers the role of “non-state justice systems,” based on custom, tradition, religion, etc., in the their role of promoting access to justice in India, with an emphasis on four different forums of dispute settlement, namely, the Lok Adalats, Gram Nyayalayas, Nari Adalats, and Khap Panchayats, with a view to inquiring whether they operate in alignments with human rights standards. Part II comprises another four chapters. Satvinder Juss analyses the Indian death penalty arguing that it has a dubious constitutional basis, with accompanying

xii  Preface uncertainties as to when it should be meted out, on what grounds, for what offences, and to what end, is as unclear today as it has ever been. Oishik Sircar focuses on the 2002 Gujarat pogrom, arguing that it was an essential marker of the ideology of the Indian nation as Hindu supremacist, such that it was far from an exceptional event, and in a moving account describes how the specter of the pogrom inhabits public consciousness in India today. Robert Wintemute discusses how, nearly 17 years after the Naz Foundation filed a Petition in the Delhi High Court in 2001 against the criminal law “that continued to stigmatise more lesbian, gay, bisexual and transgender (‘LGBT’) persons than any other in the world,” the Supreme Court read down s. 377 of the Indian Penal Code (prohibiting “carnal intercourse against the order of nature”) in 2018, so that it finally ceased to apply to consenting adults in private in the judgment of Natej Singh Johar & Others v. Union of India. In the last chapter in Part II, Sital Kalantry argues that acid violence is actually gender-based violence, that international treaty obligations require the Indian government redress gender-based violence, and that this must include acid violence, with non-state actors being required to play a role in its prevention as well. Part III has four chapters. The first, by Raminder Kaur, is on how large-scale projects in a fast-developing neo-liberal India are leading to a deterioration of the democratic right for public consultation, information, protest, and dissent. The development of the Indo-Russian Kudankulam Nuclear Power Plant amongst coastal residents in south India is a case in point. The second chapter in Part III, by Rajshree Chandra, assesses the implications of a subversive idea of property that is advanced by the Forest Rights Act (FRA), which links the question of “who possesses” to the question of “what is being possessed,” thus admitting of both the nature of the rights holder and the realm over which the right is to be extended. The third chapter, by Philippe Cullet, examines how the right to water, though recognised by the higher judiciary since the early 1990s, is today protected through a combination of non-binding instruments at the national and international levels, and this has had the greatest influence on the ways in which the right has been realised in the past couple of decades. The final chapter is by Bhumika Modh and Uma Mahesh Sathyanarayan considers the human rights obligations of the World Bank in its dealings with India and suggests that there should be an inward screening mechanism to prevent any negative human rights repercussion, because currently the inspection panel does the function of reviewing projects after they have been sanctioned by the bank, whereas an inward screening mechanism would ensure the human rights compatibility of the projects before they are implemented. I would like to express my deep appreciation to the authors who have so willingly and spiritedly contributed to this enterprise. I trust that readers will find the chapters herein included to be rewarding and thought-provoking. I would like to record my gratitude to Alison Kirk, Senior Editor, for her enthusiasm in supporting this project and to Emily Summers, the Editorial Assistant, in overseeing its publication at Routledge. Finally, my thanks go to Ramachandran Vijayaragavan, Project Manager, for carefully managing this book’s production in India. Satvinder Juss 2 May 2019

Part I

1 Civil liberties in the early constitution The CrossRoads and Organiser cases Arudra Burra1 I Contemporary discussions of civil liberties in India are marked by two striking absences. The first is the lack of what one might call a “Voltairean” sensibility in defences of freedom of speech – a sensibility expressed in words attributed to Voltaire, to the effect that one may vociferously defend another person’s right to say something while at the same time vociferously disagreeing with what that person has to say. Groups such as the American Civil Liberties Union (ACLU) have endorsed something like the Voltairean sensibility in their own work. Thus the “Free Speech” section of the ACLU’s website concludes with the words Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.2

1 Some of this material has been presented to audiences at the Centre for the Study of Law and Governance, JNU; the South Asian Studies Conference at the University of Madison–Wisconsin; Ashoka University; at a workshop on Media and the Law at the Centre for the Study of Developing Societies; and at the IIT Delhi-University of Michigan South Asian studies colloquium. My thanks to the audiences at these talks, as well as to Pratiksha Baxi, Andre Beteille, Anuj Bhuwania, Pritam Baruah, Joya Chatterji, Rohit De, Ramachandra Guha, Mathew John, Sitaramam Kakarala, Prafulla Ketkar, Richa Kumar, Rinku Lamba, Pratap Bhanu Mehta, Nivedita Menon, Siddharth Narrain, Jawahar Raja, Kranti Saran, Mitra Sharafi, Shiv Swaminathan, V. Upadhyay, and Aparna Vaidik for helpful discussion; and to members of the “Research Blues Group” (Yashpal Jogdand, Debasis Mondal, and Sourabh Bikas Paul). I thank the staff of the Nehru Memorial Museum and Library for help with the microfilm images. I am extremely grateful to Anitha Balachandran for getting these images ready for publication. For copyright permission to the images from CrossRoads, I must thank Malvika Thapar. A version of this paper with additional images is available with the author. Portions of this material were previously published in an article entitled “What Self-Styled Nationalists Could Learn from the Hindu Right’s Own Past Record on Free Speech” (scroll. in, 27 January 2016). Available online at https://scroll.in/article/802327/what-self-stylednationalists-could-learn-from-the-hindu-rights-own-past-record-on-free-speech. 2 See www.aclu.org/issues/free-speech. The reference to “Nazis” is to the case of Skokie vs. Illinois, which involved a neo-Nazi group which sought to march through a Chicago suburb in

4  Arudra Burra Contemporary free speech advocates such as Glenn Greenwald look upon these defences of “freedom for the thought we hate” as badges of honour.3 As he puts it in a recent article, the distinction between “defending the right to disseminate Idea X and agreeing with Idea X” – a distinction which “only the most simple-minded among us are incapable of comprehending” – is central to free speech activism.4 One would be hard-pressed to find similar examples in contemporary India. Right-wing figures such as Pravin Togadia of the Vishwa Hindu Parishad or Subramaniam Swamy of the BJP have been prosecuted in the recent past for instances of alleged hate-speech.5 Swamy’s constitutional challenge to hate-speech laws was articulated in classically liberal terms – he has said that these laws lack safeguards to for discussion of “various nuanced truths of interaction between groups,” and serve as a pretext for government harassment.6 Free speech activists on the liberal-left – who have an understandable abhorrence for Swamy’s views – have not, however, flocked to his defence.7 Contrast this with the ACLU’s stance in favour of Fred Phelps, the anti-gay activist and leader of the Westboro Baptist Church, who was sued in 2006 for

which many Holocaust survivors lived; see “ACLU History: Taking A Stand for Free Speech in Skokie” (www.aclu.org/other/aclu-history-taking-stand-free-speech-skokie). The ACLU also defended the free speech rights of the Ku Klux Klan in the landmark case of Brandenburg v. Ohio, described briefly at www.acluohio.org/archives/cases/brandenburg-v-ohio. 3 See, for instance, his admiration for the ACLU’s stand in Skokie in an interview with Nico Perrino of the Foundation for Individual Rights in Education (FIRE) on 21 June 2016, www. thefire.org/so-to-speak-transcript-glenn-greenwald/. 4 See Glenn Greenwald, “In Solidarity with a Free Press,” The Intercept, 15 January 2015, https://theintercept.com/2015/01/09/solidarity-charlie-hebdo-cartoons/. 5 See “Maximum Hate Speech Cases Against Pravin Togadia, Owaisi Faces 11 Such Cases: MHA,” Economic Times, 23 April 2014, http://ecoti.in/PuJqjb, – these included cases in Bhopal for a speech asserting that Muslims should be disenfranchised and not allowed to hold constitutional posts, and a speech in Bhavnagar (Gujarat), which purportedly claimed that Muslims should not be allowed to buy houses in Hindu areas.   As of June 2016, Swamy had cases against him in Delhi, Mumbai, Assam, Mohali, and Kerala, and had challenged the constitutionality of India’s hate-speech laws in response to the case against him in Assam, arguing that the laws curtailed “vibrant and vigorous public discourse.” (See Indrani Basu, “Subramanian Swamy Appeals Against Hate Speech Law in Supreme Court,” Huffington Post India, www.huffingtonpost.in/2015/06/23/subramanian-swamy-hate-sp_n_7642294.html.) 6 See Amit Anand Choudhary, “Subramanian Swamy Challenges Hate Speech Law in SC,” Times of India, 23 June 2015, https://timesofindia.indiatimes.com/india/SubramanianSwamy-challenges-hate-speech-law-in-SC/articleshow/47776651.cms. 7 In contrast, Swamy’s other free speech constitutional challenge – to the law of criminal defamation – has had a wide range of support across the political spectrum. See Gautam Bhatia, “Why Subramanian Swamy vs Union of India Is Arguably the Most Significant Free Speech Case in Years,” 14 July 2015, https://scroll.in/article/740037/why-subramanian-swamyvs-union-of-india-is-arguably-the-most-significant-free-speech-case-in-years. The challenge failed: Supreme Court upheld the law of criminal defamation in May 2016. See Gautam Bhatia, “Why the Supreme Court Ruling on Criminal Defamation Bodes Ill for the Future of Free Speech in India,” 14 May 2016, https://scroll.in/article/808115/why-the-supremecourt-ruling-on-criminal-defamation-bodes-ill-for-the-future-of-free-speech-in-india.

Civil liberties in the early constitution 5 picketing outside the funeral of Mathew Snyder, a soldier who was killed in the line of duty in Iraq. Leaders of the Church believed that God punishes America for tolerating homosexuality, particularly in the military: the picket signs contained messages such as “Thank God for Dead Soldiers” and “God Hates Fags.” Despite the overtly homophobic content of these slogans, the ACLU supported Phelps’ cause when he was sued by Snyder’s family for causing them severe emotional distress.8 Nor is the Hindu right known for its defence of free speech, whether in theory or in practice. The prosecution of Arundhati Roy on sedition charges for a speech on Kashmir in 2010 was made on the basis of a complaint by the campaign manager for Arun Jaitley, now Finance Minister in the Bharatiya Janata Party (BJP) government led by Prime Minister Narendra Modi.9 The student wing of the BJP, the Akhil Bharatiya Vidyarthi Parishad (ABVP), has led assaults all over the country on freedom of speech, particularly when it comes to speech it regards as “anti-national.”10 The BJP President Amit Shah has also claimed that freedom of speech does not extend to “speaking against the country.”11 The point extends beyond freedom of expression to other classical civil liberties as well, such as freedom of association or the right to a fair trial – to defend the rights of someone accused of a crime is hardly to justify the crime itself. Here too, I think it is fair to say that by and large civil liberties are invoked in a “sectarian” or partisan way. This is not a new complaint.12 One result is that invocations of civil liberties are seen as opportunist or cynical when employed by one’s political opponents – a depressing and familiar spectacle today.

  8 See Chris Hampton, “Why Fred Phelps’s Free Speech Rights Should Matter to Us All,” 7 October 2010, www.aclu.org/blog/speakeasy/why-fred-phelpss-free-speech-rightsshould-matter-us-all. In Snyder v. Phelps, 562 U.S. 443 (2011), the US Supreme Court ruled in favour of Phelps on free speech grounds.  9 See “The ‘Seditionist’ Speech,” Outlook, 1 December 2010, www.outlookindia.com/ website/story/the-seditionist-speech/268505. 10 There is no dearth of examples – the most high-profile of them being the drive by the ABVP to expel students of the Jawaharlal Nehru University (JNU) for raising so-called “antinational” slogans at an event on Kashmir in February 2016. The ABVP’s national organizing secretary, Sunil Ambekar, was quoted as saying that there are “excessive” rights in India today. See Prashant Jha, “People Have Excessive Rights in India, Says ABVP Leader,” Hindustan Times, 17 February 2016, www.hindustantimes.com/india/people-have-excessiverights-in-india-says-abvp-leader/story-6PYOwE3GsmfygTk538RonI.html. 11 See Arudra Burra, “Memo to Amit Shah: BJP Icon SP Mookerjee Would Not Have Appreciated Curbs on Free Speech,” Scroll.in, 25 November 2016, https://scroll.in/ article/820946/bjp-founder-sp-mookerjee-wouldnt-have-related-to-amit-shahs-views-onsedition-an-anti-nationalism. 12 See, for instance, Pritam Singh, “Sectarianism and Human Rights Discourse: The Politics of Human Rights in Post-Colonial Punjab,” and Nilanjan Dutta, “From Subject to Citizen: Towards a History of the Indian Civil Rights Movement,” in Michael R. Anderson and Sumit Guha, ed. Changing Concepts of Rights and Justice in South Asia (New Delhi: Oxford University Press, 2000).

6  Arudra Burra My other observation is that, by and large, defenses of civil liberties are not premised on a general suspicion of the exercise of state power, and the scope for its abuse. The point is familiar enough with respect to matters regarding national security or anti-terrorism laws: right-wing defenders of the minimal state tend not to be bothered by the existence of such laws, despite the extent to which they provide the state ample powers for misuse, and despite the fact that this misuse is well-documented.13 But it applies also to the progressive left, broadly speaking. To take one example from the recent past, the Maharashtra Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013, enacted in the wake of the murder of the anti-superstition activist Narendra Dabholkar, makes it an offence to promote or propagate a series of quite vaguely defined “inhuman, evil and aghori practices and black magic,” and gives powers of entry, search, and seizure to a “Vigilance Officer” who is empowered to do so whenever he has “reason to believe” that an offence under the Act has been or is being committed.14 Opposition to the Act on civil libertarian grounds was here voiced by members of the religious right.15 To take another example, the Commission of Sati (Prevention) Act, 1987, criminalizes a variety of expressive acts of “glorification,” which include “supporting, justifying, or propagating the practice of sati,” and creating a trust or constructing a temple with “a view to perpetuate the honour of, or to preserve the memory of, a person who has committed sati.”16 In the case of abetting sati – which includes “making a widow believe that the commission of sati would result in some spiritual benefit to her,” and “participating in any procession in connection with the commission of sati” – the burden of proof of innocence lies with the accused.17 In both cases, the laws in question give a great deal of discretionary power to local authorities, both executive and police, to curtail what might in some guises be seen as basic civil liberties concerning expression and religious freedom. A certain kind of civil libertarian might deplore the practices in question, and hope for

13 To take just one instance, see the discussion by Mayur Suresh and Jawahar Raja of the use of the Unlawful Activities (Prevention) Act to ban the Students’ Islamic Movement of India: “ ‘Detrimental to the Peace, Integrity and Secular Fabric of India’: The Case against the Students’ Islamic Movement of India,” Working Paper Series 14, Centre for the Study of Law and Governance, Jawaharlal Nehru University (November 2012). See also Ujjwal Kumar Singh, The State, Democracy and Anti-Terror Laws in India (New Delhi: Sage Publications, 2007). 14 Maharashtra Act XXX of 2013. See sections 5 and 6 for the scope of the duties and powers of Vigilance Officers. 15 See, for instance, the article “Oppose Black Magic Bill: A Draconian law targeting faith” (www.hindujagruti.org/hindu-issues/anti-faith-bill) published on the website of the Hindu Janajagruti Samiti, an organisation “For the Establishment of the Hindu Rashtra.” For a sensitive discussion of the issues surrounding religious freedom in this context see the interesting discussion by Meera Nanda, “In the Name of Faith,” Frontline, 4 October 2013, https://frontline.thehindu.com/cover-story/in-the-name-of-faith/article5137396.ece. 16 Act 3 of 1988. “Glorification” is defined in section 2(b). 17 Note that I am drawing attention here to the speech-restrictive aspects of the laws in question: not sati per se, but its glorification; not the “evil practices,” but their promotion.

Civil liberties in the early constitution 7 their eradication, while being loath to invoke the state’s coercive power in service of this goal – not least, because of quite general fears about how state officials might abuse such powers. Such concerns have indeed been voiced by civil libertarians one would associate with the liberal left; but my sense is that their voices are somewhat muted in this regard.18 Discussions of civil liberties – regardless of the substantive ideologies of the people or groups on whose behalf civil liberties claims are made – have thus tended to take place without a consistent position on the limits of the exercise of state power as such. One reason why this is striking is, of course, that the classical defenses of civil liberties are premised precisely on fears of government misuse and over-reach. In making these two observations, I do not wish to reiterate the by-now wellworn claims about hypocrisy or “selective outrage” on the part of civil liberties advocates, whether on the left or on the right; one may point out an inconsistency without claiming bad faith. On the contrary, I think the fact that civil liberties discourse tends to be sectarian in the ways outlined above, and that civil libertarians are sometimes ambivalent about the proper limits of state power, says something about the nature of civil liberties themselves, and reveals tensions between the ideal of civil liberties and those of social and economic reform in the modern Indian state. The tensions themselves are hardly new, but I think have been inadequately discussed in the Indian context. This chapter is in part a plea to begin such a discussion. I should also emphasise that I do not invoke the ACLU/Voltairean sensibility on free speech as an ideal to which we must aspire and are found wanting.19 It is not that I am neutral with respect to it – indeed, I think there is a great deal to be said for it, though I will not attempt to argue the point here. Instead, my aim in drawing attention to it is two fold. First, having a simple, sharply delineated model before us disciplines our own thinking. There are excellent reasons to think that the sensibility simply does not speak to our circumstances: making the contrast explicit is one way of forcing us to articulate those reasons, and understand what specifically in our situation makes it inappropriate. This in turn might help us clarify what norms and ideals we think are appropriate for our context.20

18 See, for instance, Maja Daruwala’s criticism of the provisions concerning glorification and the reversal of burden of proof in the Sati (Prevention of Glorification) Act, published in “Central Sati Act – An analysis” (PUCL Bulletin, July 1988). 19 According to Nivedita Menon, for instance, Sunil Khilnani’s lament that Indian liberalism was “crippled from its origins” because it did not see liberty as an individual right is classic case of seeing post-colonial democracy “as a Lack” (“Citizenship and the Passive Revolution: Interpreting the First Amendment,” Economic and Political Weekly, May 2004). The charge against Khilnani is that he brings to bear the wrong kind of normative standard, one borrowed from the European enlightenment – and that in general it is a mistake to think that we have to justify Indian democracy “in terms of ‘liberalism’ as an a priori value.” In the present context, all I wish to say is that by noting an absence I do not mean to attribute a Lack. 20 Thus I do not find it helpful to cast these debates as being about whether Indian constitutionalism is truly “liberal,” for debates framed in that way lead, in my view unhelpfully,

8  Arudra Burra Second, part of my aim in drawing the contrast is to understand more clearly just what are the limitations of that model in the first place. What assumptions about democracy and democratic institutions must we make in order for the ACLU model to make sense? Do they hold even in the American context? It is hardly an uncontroversial ideal even within that context, as witnessed for instance by debates around pornography and hate speech.21 The same point applies to thinking about the scope of state power. While one might well articulate a defense of civil liberties on the basis of a more general libertarian advocacy of the minimal state, surely this is not the only basis on which to mount such a defense. A liberal defense of civil liberties might allow for considerable state intervention, particularly in the context of a great deal of private violence and oppression.22 So I do not mean to suggest that defenders of civil liberties in India cannot consistently argue against repressive security legislation on the one hand, and in favour of laws designed to eradicate sati, on the other. But I do think that there is a need to articulate a theoretical position within which such a stance can be consistently defended. These observations about the contemporary scene, and the theoretical questions they invite, are not, however, the focus of this chapter. My aim is instead to examine an episode in Indian legal history in which I think something like the ACLU sensibility was on display, at least in some limited fashion. I take as my starting point the first two cases Supreme Court cases on free speech under the Indian constitution, both decided exactly four months after it came into force, on 26 May 1950. These were the cases of Romesh Thapar and Brij Bhushan, each of which challenged speech-restrictive provisions of a “Public Safety” Act as being inconsistent with the newly granted fundamental right to freedom of speech and expression in Article 19(1) of the Constitution.23 The Court struck down these laws on the grounds that they were over-broad, and its decisions had far-reaching consequences. High courts across the country followed its reasoning were to strike down a range of other speech-restrictive laws: the Press (Emergency Powers) Act of 1931, as well as the sedition clause of the Indian Penal Code. This in turn paved the way for the first great confrontation

to questions about what liberalism consists in, and what justifies us in regarding a certain political philosophy with roots in the European enlightenment as the standard against which to assess our own constitutional vision. To my mind the question is simpler than that: do we think that a particular normative standard – in this case the ACLU/Voltairean vision with respect to free speech – is the correct one for us? Neither its compatibility with something called “the liberal tradition,” nor its origins in a particular historical context quite different from ours, is relevant to that question. 21 See Jeremy Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2014), for the criticism that US free speech discourse is limited precisely because of its inability to make space for the regulation of hate speech. Catherine Mackinnon has long argued against liberal defenses of a right to pornography, for instance in Only Words (Cambridge, MA: Harvard University Press, 1993). 22 Thanks to Andre Betèille for useful discussions of this point. 23 The full case citations are Romesh Thappar vs The State of Madras (1950 AIR 124) and Brij Bhushan And Another vs The State of Delhi (1950 AIR 129).

Civil liberties in the early constitution 9 between Parliament and the Supreme Court, the First Amendment to the Indian constitution in 1951.24 My interest in this cases is not, however, in their jurisprudence, or in their legal consequences. I wish rather to examine the story of how the publications in question were banned, and how they came to be litigated in the first place. That story, I think, will shed some light on the two absences I have discussed in this introduction. The case of Romesh Thapar concerned a magazine called CrossRoads, which though not officially an organ of the Communist Party of India was closely affiliated with it: its history of troubles with the censors had very much to do with this political affiliation, as expressed in articles about the Telengana uprisings in Hyderabad state, as well as on firings upon Communist detenus in Salem Central jail. Brij Bhushan, on the other hand, had to do with the Organiser, organ of the RSS, which was censored for communal articles concerning riots in East Pakistan. Despite the major ideological differences between these groups, an investigation of the archives of these two publications reveal interesting convergences on issues concerning civil liberties, both with respect to freedom of speech but also more broadly. The lawyer for the Organiser, N. C. Chatterjee, was at that time Vice-President of the Hindu Mahasabha, but also a member of the Calcutta-based Civil Liberties Committee, which had been set up in the 1940s against the background of Communist suppression. And the cases took place against the background of a civil liberties movement which regarded suppression of Communists and the RSS as instances of the same problem – the All-India Civil Liberties Council included among its office-bearers figures such as Chatterjee and Syama Prasad Mookerjee on the Hindu right, as well as trade-union leaders such as N. M. Joshi. The Council maintained an active connection with the ACLU, and members of the Council were keenly aware of the ACLU’s work on civil liberties, particularly freedom of speech. Indeed, examining this history should lead us to revisit the very idea of an “Indian” tradition, whether with respect to civil liberties or elsewhere. N. C. Chatterjee’s free speech arguments did not draw from some imagined Hindu past, but rather from the American liberal tradition embodied in such figures as Brandeis and Holmes, whose defences of free speech can be traced back further to Mill.

II Let me begin with an analysis of CrossRoads, which was inaugurated in Bombay on 29 April 1949 by Romesh Thapar (later founder of Seminar).25 His wife Raj describes them both as committed to communist causes without being formally

24 For more on the debates around the First Amendment, see Granville Austin, Working a Democratic Constitution (Oxford University Press, 1999), chapter two. The legal issues are addressed in some detail in Arudra Burra, “Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951” (unpublished draft, 2007). 25 Many thanks to Professor Romila Thapar, and to Malvika Singh, for background on CrossRoads.

10  Arudra Burra members of the Communist Party of India – but certainly part of a social and political circle in Bombay whose main currents were inspired by communism, and whose cultural connections included participation in the Indian Progressive Theatre Association, amongst other organisations.26 The first issue of CrossRoads (Figure 1.1) included articles by Mulk Raj Anand, Pablo Neruda, Maurice Dobb, C N Vakil, and Balraj Sahni. Free speech was an early concern: Sahni, a member of the communist-associated Indian People’s Theatre Association (IPTA) wrote an article addressed to Tagore, lamenting a ban on IPTA’s performance of his songs. Thapar notes in his first editorial that he was asked to give a security deposit when starting the magazine, because, according to the officials at his interview, “author is considered a staunch communist, likely to publish objectionable material.” The journal was strongly anti-Congress, though it did not spare the Socialists either: it had a regular feature called “Our Congress” which made fun of the current dispensation based on news snippets (see Figure 1.2), and then, more darkly, a regular series called “Inside Congress Jails.” The violation of civil liberties was a constant theme, as was coverage of police firings and jail deaths. In addition, it carried a great deal of international coverage, on the US involvement in Korea, and pro-Communist articles on Russia and China. It also provided coverage and criticism of the Draft Constitution, referred to often as the “Slave Constitution.” The first ban on CrossRoads came from what it called the “Hyderabad Military Government” in July 1949, following a series of articles on the Telengana struggle, including a campaign against the award of the death sentence for communist activists (Figure 1.3). In July 1949 CrossRoads was banned by the Bombay Government for “threatening the peace and tranquillity of Bombay Province,” under section 9A of the Bombay Public Security Measures Act. The offending article was the reprint of a message from the All-China Federation of Labour condemning Government crackdowns on trade unionists and communists (Figure 1.4). The problem was with the title of the article (“Criminal”) – the doing of Thapar’s sister, the distinguished historian Romila, then a college student in Pune, who was helping with the copy-editing while on holiday. Thapar was summoned to the Press Advisory Board chaired by Morarji Desai, then Home Minister (Frank Moraes and Sadanand, editor of the Free Press Journal, were the other members of the Board). Morarji demanded an apology which Thapar refused to give, following which the ban was imposed. Thapar described

26 Raj Thapar, All These Years (Seminar Publications, 1991). In its entry on Communist Party of India, The Indian and Pakistan Year Book and Who’s Who 1950 refers to “The unofficial English organ of the Party (the official organ is banned) is skillfully got up and ably edited though the mode of expression is sometimes very crude and intemperate.” While it does not name CrossRoads, the reference is clear and would have been in the nature of an inside joke – Frank Moraes, editor of the Times of India (which published the Year Book) had also employed Romesh Thapar to work for him, and had been the one to introduce him to Communist circles in Bombay – though they had a subsequent falling out.

Source: Microfilms Division, Nehru Memorial Museum and Library.

Figure 1.1  “What, Another One?” CrossRoads inaugural issue, 29 April 1949

Figure 1.2  An early CrossRoads cover Source: Microfilms Division, Nehru Memorial Museum and Library.

Civil liberties in the early constitution 13

Figure 1.3  “Hyderabad: Lathi Charge in Jalna Detenue Camp,” CrossRoads, 10 June 1949 Source: Microfilms Division, Nehru Memorial Museum and Library

this episode in an editorial titled “They Shall Not Gag Us,” when CrossRoads resumed publication in December, criticizing the Press Advisory Committee for having taken on “the role of a prosecutor” instead of defending the press against attacks from the government, and writing: “The demand for a servile apology and various undertakings met with the rebuff it deserved.” Thapar also discussed the legal issues arising from the ban. An appeal to the Bombay High Court to stay the ban and review the order was rejected on 19 August, the Court arguing that it lacked jurisdiction because the ban order was an executive order.27 When this point in turn was appealed to the High Court,

27 The episode is discussed by Raj Thapar, op cit 83–86; the legal issues are described in the Yearbook’s entry on “The Press.”

14  Arudra Burra

Figure 1.4 “Criminal”: The article for which CrossRoads was banned in Bombay, CrossRoads 10 June 1949 Source: Microfilms Division, Nehru Memorial Museum and Library.

the Chief Justice, M. C. Chagla, ruled against the government, stating that the grounds upon which which the order had been passed were indeed within the purview of judicial oversight, and directing the lower courts to hear the matter on its merits.28 This matter was sub judice at the time Thapar wrote his editorial. He concluded At a time when the Congress-capitalist alliance is attempting to stifle all democratic and free opinion, the struggle for the freedom of the Press assumes a new and immediate urgency. We, on our part, will continue to steadfastly battle for a democracy of the toilers, the India of our dreams. We appeal to our readers, friends and comrades to win legality for the democratic and free press, for it is they who, in the final analysis, must decide the issue between People’s Democracy and Congress fascism.

28 The case is Ramesh Thaper vs the Province of Bombay (AIR 1950 Bom 213). It seems to have been Thapar’s fate to have his name misspelled on legal cases – the citation for what came to be called the CrossRoads case in the Supreme Court spells his name as “Thappar.”

Civil liberties in the early constitution 15 CrossRoads continued from where it left off, with articles attacking the Constitution, covering the condition of detenus, police firings, and strikes.29 In February 1950, it launched a series of sustained criticisms of the Madras government for a firing on communist prisoners in Salem Central jail which left 22 prisoners dead.30 It was for this series of articles (as well as other criticisms of the Madras administration) that the entry and circulation of CrossRoads was banned in Madras Province.31 CrossRoads covered the story of its own ban in Madras with great vigour, starting with an editorial on 17 March, “Madras Ban on CrossRoads Must Go” (Figure 1.5), in which it called the ban “a fascist attack” which showed that Congress leaders were afraid of the truth. Two weeks later it announced that it would challenge the ban in the Supreme Court, and appealed to readers to raise Rs. 2000 by May Day towards its “Fighting Fund.” On 7 April, it announced that the petition was filed and would be heard on 10 April. The following issue (14 April) was devoted entirely to freedom of the press: an entire page, titled “CrossRoads Leads Battle for a Free Press,” consisted of letters of support from other publications, as well as messages from the Progressive Artist’s Group and the Progressive Writer’s Association. Coverage of this sort continued through the announcement of its victory in the Supreme Court.

III CrossRoads’ adoption of the mantle of defending civil liberties in the face of government repression was also mirrored by another journal of a very different ideological persuasion. The Organiser had been inaugurated in July 1947, and was banned in February 1948 following the ban on the RSS after Gandhi’s assassination.32 When it reappeared in October of that year its tone was not particularly

29 One change which seems to have come about early in 1950 is that of the cover page: the earlier, more edgy covers by the artist Chittoprasad were now replaced by a more humdrum design. 30 For a retrospective account from one of the prisoners who was there at the time, see “Survivor of Salem Prison Massacre Recalls the Black Day,” Hindu, 13 February 2006, https:// www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/survivor-of-salem-prisonmassacre-recalls-the-black-day/article18408295.ece. The incident was serious enough to warrant a concerned letter from Sardar Patel to K. Madhava Menon, the Minister for Education, Law and Jails, saying that he was rather disturbed over the casualties inflicted. See Sardar Patel’s correspondence, vol 9, 295–297. 31 The order of 1 March 1950 read “In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled CrossRoads an English weekly published at Bombay.” The Communist party had been banned in 1948. 32 Many thanks to the present editor of the Organiser, Shri Prafulla Ketkar, for background on its early history, and for introducing me to its archive.

Figure 1.5  “Madras Ban on CrossRoads Must Go,” CrossRoads, 17 March 1950 Source: Microfilms Division, Nehru Memorial Museum and Library.

Civil liberties in the early constitution 17 militant, but it did start to cover a number of themes similar to CrossRoads, such as the denial of civil liberties. It spoke of the formation of a civil liberties group in Delhi called the Jan Adhikar Samiti, and carried a series from a lawyer in Shimla on “Your rights under arrest.” Another issue in October 1948 called for the repeal of Public Safety Acts, and an article in November by Balraj Madhok was entitled “Fundamental Rights Have Been Made the Playthings of the Party in Power.” An article in 1949 covered hunger-strikes in jail, in early 1950 it complained about the lack of “Fundamental Freedoms” in the Constitution. While it was critical of Nehru and the Congress, it was not virulently so. There was a marked change in tone starting in late 1949, when it started covering violence against Hindus in East Bengal.33 In December 1949 a police squad had gone to Kalshira village in Khulna district to arrest suspected Communists. It was alleged that they mistreated women in what was a predominantly Hindu village – this led to a clash with the villagers in which two policemen were killed. A larger party of police, along with a militia aided by local Muslims, retaliated by destroying houses and assaulting villagers in the area. Some of these villagers then escaped to West Bengal: by the middle of February the Indian government claimed that 24,000 refugees had entered West Bengal. Their stories of harassment led to anti-Muslim riots in early February, fomented by the Hindu Mahasabha. These in turn led to the migration of Muslims out of West Bengal to East Pakistan, and a fresh cycle of anti-Hindu riots in Dhaka followed by further migration to West Bengal. In August 1950 the Government of India claimed that between 7 February and 8 April 1950, 8,57,579 Hindus had left East Pakistan for India, and 3,68,778 Muslims had left in the reverse direction. In February 1950, Nehru suggested a number of confidence-building measures to his counterpart in Pakistan, Liaquat Ali Khan, including the setting up of joint fact-finding commissions in each of the two provinces, and later that they should make a joint visit to the affected areas.34 Liaquat demurred, suggesting instead that they take steps to discourage the migration of minorities. Meanwhile, Nehru faced an enormous amount of pressure from within his party, as well as the country as a whole, to take “strong steps” in response to the situation in East Pakistan – including the possibility of going to war if necessary, or if not, to force a transfer of populations between the two countries, accompanied by an exchange of land. These demands were spearheaded by those elements of the political class of Bengal which had urged the Partition of the state just a few years before.35 Amongst them was Syama Prasad Mookerjee, former leader of the

33 The accounts which follow are based on Srinath Raghavan, “Bengal 1950,” in War and Peace in Modern India (Ranikhet: Permanent Black, 2010) and B. D. Graham, “Syama Prasad Mookerjee,” in D. A. Low, ed. Soundings in Modern South Asian History (Berkeley; Los Angeles: University of California Press, 1968). Their accounts differ in minor respects. 34 See Raghavan, op cit., for a detailed analysis of India’s diplomatic attempts to bring Pakistan to the table, as well as internal conversations within Congress and the Cabinet about the possibility of military action. 35 See Joya Chatterji, Bengal Divided: Hindu Communalism and Partition, 1932–1947 (Cambridge: Cambridge University Press, 2010) for a very helpful guide to this broader political landscape.

18  Arudra Burra Hindu Mahasabha, then a member of Nehru’s Cabinet as Minister for Industries and Supplies.36 Nehru was opposed to war for a number of reasons – while he was confident of the prospects of a military victory, and did not rule out the possibility of going to war, he thought it would be disastrous from the point of view of protecting the rights of Hindu minorities in Pakistan, who would face the brunt of retaliatory violence. In the end, Liaquat did agree to a meeting with Nehru, partly out of worries about the mobilization of Indian troops along the Eastern border. On 2 April 1950 the two Prime Ministers met in Delhi, and on 8 April signed what came to be called the Delhi or the Nehru-Liaquat Pact. It affirmed the intention of both governments to protect their minorities, restore communal harmony, and provide help both to migrants and refugees who wished to return. The Pact was seen as unsatisfactory by some of Nehru’s opponents like Syama Prasad Mookerjee, who doubted Pakistan’s good faith: Mookerjee resigned from the Cabinet in protest.37 The press had played an important role in the pressure campaign against Nehru, and the Organiser was no exception. On 27 February it published three articles for which it was later asked to “explain itself” before the Delhi Provincial Press Officer.38 One of these was a front-page column entitled “Six Questions” from an un-named Special Correspondent: Is it a fact – 1

That one of these days the Chittagong Mail crossed into Bharat with no passengers but only broken bangles and numerous blood spots? 2 That while the Chief Secretaries of East and West Bengal were conferring in Dacca, a massacre of Hindus was staged just outside the venue of the meeting – . . . 3 That planes reaching Calcutta on 16 February, brought only old woman and children because all the men-folk of the party had been murdered, and all young women abducted, in Dacca? 4 That life in Dacca is so insecure that our Deputy High Commissioner in Dacca has sent away his family to Calcutta? 5 That a number of refugees on reaching Bharat are exchanging blood for bread – in the blood banks? 6 That Karachi has sent 30,000 Baluchi and frontier troops to Chittagong?

36 Mookerjee had resigned from the Hindu Mahasabha in November 1948, over a disagreement having to do with whether the Mahasabha’s status as a political body exclusively concerned with Hindu interests: Mookerjee felt that after Independence there was no longer any need for such a body. 37 Mookerjee was to play an important role the following year in debates on freedom of speech at the time of the First Amendment. See Burra, “Arguments from Colonial Continuity” for more on this. 38 The original articles and cartoons from the Organiser mentioned here can be found online at http://web.iitd.ac.in/~burra/research/civ-lib-resources.html.

Civil liberties in the early constitution 19 Another was a cartoon on Nehru’s policies vis-à-vis the refugees, attributing to him the statement that “Government’s responsibilities were as much to protect the interests of nationals in general as to protect the minorities of India, no matter what Pakistan did to its minorities.” It showed Nehru, in one panel, as a cobra protecting (Muslim) evacuee property from (Hindu) refugees coming into India, and in another, feeding a Muslim man in his arms from a milk-bottle labelled “Protection.” This image of the “appeasement” of Muslim minorities in India was contrasted in a third panel with the situation in Pakistan, where the gleeful Premier Liaquat Ali Khan is watching as a baby labelled “Pak minorities” is burned above a bonfire.39 The third article which came to the Press Commissioner’s attention was titled “Villains vs. Fools.” It began: “The villainy of Pakistan can be matched only by our own idiocy,” and went on to criticize the government for its policy on Muslim evacuee property: We do not want Muslim evacuee property to be “administered”. It must forthwith be disbursed among the most needy Hindu refugees. The fact of the meagreness of Muslim evacuee property need no confound our government. There can be no two opinions about Leaguers. Their place is in Bharat. It is easier for a camel to pass through the needle’s eye than for a Leaguer to be loyal to Bharat. Wolves in sheep-skin are Wolves all the same. They must be shown the way to the land of their sanguine labours. Their disloyalty is a fact. How many of them have supported our defence of Kashmir? Can they be relied upon to defend Bharat? Bharat is no charity-house. And charity to wolves? – Never! The enemies of Bharat and Bharatiyata can have no place in Bharat. No sermons on secularism by its highest priests can reverse this fact. On 6 March, the Organiser’s front page carried the headlines “Organiser Threatened.” The article below, subtitled “Delhi Administration Endangers Freedom of the Press,” began defiantly: During the brief but brilliant career of 32 months of the Organiser the first free government of Bharat has thought fit to ban it outright on three occasions and thus stop its publication for an aggregate period of 14 months. The Delhi Administration, however, seems far from satisfied about its hat-trick performance and seems bent upon taking some action against it once more. In the circumstances I deem it my duty to place the whole matter before the general public to enable it to form its opinion about it. The article was by the Organiser’s editor, K. R. Malkani, and recounted two previous instances in which he had been called before the Delhi Provincial Press

39 “Flogging the Dead Horse,” Organiser, 27 February 1950. The original cartoon is available at http://web.iitd.ac.in/~burra/research/civ-lib-resources.html#flogging.

20  Arudra Burra Officer before the Central Press Advisory Committee: these were for articles written in the issues of 12 January and 17 February. He ended on an equally rousing note: We owe it to the public to lay before it official acts of harassment of the press for publication of undisputed facts in a manner which has not disturbed, and is not likely to endanger, the public peace. To threaten the liberty of the press for the sole offence of non-conformity to official view in each and every matter, may be a handy tool for tyrants but only a crippling curtailment of civil liberties in a free democracy. We trust the Delhi administration will work for the consolidation of liberties, and not for their denial. A government can always learn more from “bona fide” criticism of independent-thinking citizens than from the fulsome flattery of charlatans. It is hard to see the “Six Questions” as involving “undisputed facts” whose publication was unlikely to “endanger the public peace,” but the Organiser continued to editorialize about its own censorship, while writing extensively about the Bengal situation. One trope was the use of personal testimony to detail the horrors faced by Hindus in East Pakistan, for instance by reprinting purported extracts from letters sent by them. One letter begins “We may be killed at any moment. An orgy of loot, arson and massacre has started in our Hindu area since Sunday. . . . We may be destroyed, along with our property, at any moment.” Another letter is more dramatic: MOTHER AND ALL OTHERS HAVE BEEN INHUMANLY KILLED. I ALONE AM ALIVE. NOTHING MORE. ONLY IF I MEET YOU IN THE FUTURE CAN I TELL YOU HOW ALL THIS HAPPENED. FOR I CANNOT SAY WHAT WILL BECOME OF ME EVERY PASSING MOMENT. A third extract, from a young girl to her father, is more dramatic still: JUST YESTERDAY MOTHER’S NICCA WAS PERFORMED. I AM TO BE MARRIED TOMORROW. DO NOT COME HERE. THESE BEASTS WILL KILL YOU. (“Without Comment Again”, Organiser, 27 February 1950; capitalisation in original) On 2 March the Organiser received an order from the Chief Commissioner requiring it to “submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies.” This order was pursuant to a determination, under the

Civil liberties in the early constitution 21 terms of the East Punjab Public Safety Act, 1949, that it had been publishing “highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order.” This order was reprinted in the 13 March issue, which also contained a frontpage editorial criticising it, side-by-side with an emotional appeal to support the “Organiser’s Bengal Relief Fund,” which was to be administered by the Bengal Provincial RSS. The appeal spoke of “Harrowing tales of ghastly barbarities of cold-blooded murders and mass expropriation, of beastly violations of chastity and forced conversions to an alien hated creed”; the editorial concluded Facts are sacred. To withhold their publication because they are unpalatable would be to play false to Truth. If the administration earnestly wants ugly facts not to appear in the press, the only right and honest course for it is effectively to exert itself for the non-occurrence of such brutal facts. Suppression of facts is no solution to the Bengal tragedy. Surely the Government does not hope to extinguish a volcano by squatting the more tightly in its crator [sic]. Bengal continued to be the main theme through March and April, with the Liaquat-Nehru parleys being a particular focus for criticism – an article in the 3 April edition was titled “Peace if Possible, War if Necessary.” But now the Organiser also drew attention to “Censors Scissors” when parts of an article had not been approved for publication; occasionally, this would extend to an entire article: thus on 24 April it published a blank page with a copy of the Provincial Press Officer’s order not to publish an article on the Education Ministry, then run by Maulana Azad. A week earlier, the Organiser announced on its front page that it had challenged the ban in the “Supreme Court of Bharat,” and that hearings were scheduled for the 19 April. A great part of the 1 May edition was devoted to the case which it described on its front page as “Organiser” vs. The State; it carried a detailed account of the oral arguments before the Supreme Court. On 5 June, it announced on its front page news of “A Great Event”: the Court had declared the relevant section of the East Punjab Public Safety Act unconstitutional. The judgement was published on the front page, which also carried a note of “Thanksgiving” to its sympathisers and readers who “bore with us the censor’s scissors for three long months.”40

40 The judgement had been delivered on 26 May: The Supreme Court had decided it on the same day as the CrossRoads case, on substantially similar grounds. This is why the Organiser judgement is brief: the bulk of the analysis was provided in the CrossRoads case. For an analysis of the reasoning of this case, see Burra, “Arguments from Colonial Continuity.” See Austin, Working a Democratic Constitution for a discussion of the immediate aftermath of these judgements.

22  Arudra Burra In an editorial in the same issue entitled “All’s Well That Ends Well,” Malkani wrote triumphantly After a gruelling three months subjection to the galling orders of an overreaching executive we once again breath the air of freedom. Our felicity is heightened by the fact that the freedom achieved is for the whole nation and not a mere personal salvation. For our freedom marks the guaranteeing of the freedom of the entire press of the Nation. Generations yet unborn will look upon this decision as the corner stone of the arch of liberty for the people no less than for their press. For the press it is a veritable Magna Carta under whose provisions it can go from strength to strength in an empyrean of liberty. We have no words to congratulate the Supreme Court for its supreme sense of duty to uphold the spirit of our Democratic Republican Constitution. We thank them not only on behalf of ourselves but on behalf of the entire national Press of Bharat. Malkani concluded with a reference to CrossRoads – the first time either of these journals had acknowledged the other’s role in the legal battle for press freedom: [D]emocracy lives by a free press. The free press is the first casualty of fascist regimes the world over. Democracy lives, so long as press lives to inform, instruct, and organise public opinion. If free press goes democracy too goes even as the day passes with the setting of the sun. That we an our Bombay contemporary should have been the vehicle of this democratic dispensation to the national press is a source of gratification to us. The Organiser’s cartoonist turned to mythology, depicting a bearded sage sitting in front of a house labelled “Organiser,” protected from the arrows of a royal figure assaulting him by a staff labelled “truth.” In the background is a cow, the “Kam Dhenu,” representing freedom of the press. The caption explains: By his “Brahma-danda”, Rishi Vashista nullified the furious assault of King Vishwamitra for the capture of “Kamadhenu”. The democratic Constitution nullified the government efforts to deprive the nation of the free services of its “Kamadhenu” – the free press.41

IV Despite a common opposition to the Congress, CrossRoads and Organiser were journals driven by very different – and usually completely antithetical – political ideologies, and the circumstances of their censorship were rather different. In the

41 “Organiser vs. The State,” Organiser, 5 June 1950. The cartoon is available at http://web. iitd.ac.in/~burra/research/civ-lib-resources.html#kamadhenu.

Civil liberties in the early constitution 23 case of CrossRoads there does not seem to have been much more at stake than government embarrassment, while in the case of the Organiser there were serious concerns both about public order within the country, as well as with regards to foreign policy. Nevertheless, they articulated their concerns about censorship in almost exactly the same way, seeing them as an assault on democracy and civil liberties. Malkani’s final editorial might well have been written by Thapar, and the Supreme Court’s judgements do not once refer to the actual views expressed in either journal. What are we to make of this? There are at least three ways in which to interpret the facts. The first interpretation is cynical: neither the communists nor the Hindu right had any interest in civil liberties as such, but used the language of civil liberties because it was a useful strategic device with which to defend its own partisan political interests and oppose the government of the day. The second interpretation is not cynical so much as opportunistic: here the claim would not be that the parties in question were uninterested in civil liberties, but that their interest in civil liberties was limited to those liberties which most affected their own people; this is the charge of “sectarianism.” The third interpretation is a more principled one: the players involved really did have a commitment to civil liberties as such, which extended to the civil liberties of groups other than their own. I wish to offer some evidence in favour of the third, “non-sectarian” interpretation of this episode, focussing here on the Hindu right, though I suspect that the argument applies more broadly. Before I do so, it is worth pointing out, first, that one should not assume that the groups involved were monolithic entities. Syama Prasad Mookerjee, for instance, resigned from the Hindu Mahasabha in 1947 because he felt that after Independence there was no need for a separate political forum to represent Hindu interests alone. Second, one should not assume that simply because a group or a formation has a self-interested motive in making a civil liberties claim, it is thereby cynical or opportunistic. How one might begin to make such a case? Let me start with the figure of N. C. Chatterjee, the lawyer for the Organiser. Chatterjee was also the President of the Hindu Mahasabha in 1947 and then again in 1954, and ran for the first and second Lok Sabha elections (in 1952 and 1957) as a Hindu Mahasabha candidate.42 His son, Somnath Chatterjee – distinguished leader of the Communist Party of India (Marxist) and Speaker of the Lok Sabha – reports that his father became disaffected with the Hindu Mahasabha’s politics and stayed away from it following the period just after Mahatma Gandhi’s assassination: it was during this time (July 1948) that he was appointed a judge of the Calcutta High Court.43

42 Many thanks to Rohit De for initially encouraging me to explore N. C. Chatterjee’s contributions in relation to this project. 43 See Somnath Chatterjee, Keeping the Faith, 14–17 for biographical details on N. C. Chatterjee.

24  Arudra Burra Chatterjee resigned from the judiciary in 14 months, fearing that the new constitution would disallow members from the judiciary from ever taking up legal work after retirement. He then moved to Delhi and began a Supreme Court practice. It was at this time – right around the Organiser case – that he renewed his acquaintance with the Hindu Mahasabha. Chatterjee was also a member of the Calcutta Civil Liberties Committee (CLC), set up following the ban on the Communist party imposed by the B. C. Roy government in 1948. While the CLC was a communist-led initiative, it included among its members figures such as Meghnad Saha, K. P. Chatterjee, and Sarat Bose.44 A flavour of the CLC’s vision is related in the following anecdote by Nilanjan Dutta: During a discussion with the author a veteran communist activist recalled that once an old lawyer attached to the CLC had told him: “You know what is the difference between your approach and mine? You are not interested in civil liberties as such, you are only interested in your comrades’ release. I am also interested in getting your comrades released, but only as part of the civil liberties movement.”45 Somnath Chatterjee writes that his father’s involvement with civil liberties increased after his defeat in the 1957 Lok Sabha elections. He was a prominent office-bearer of the All-India Civil Liberties Council and was its President in 1958.46 In 1966 he was involved in constituting an independent Commission of Inquiry appointed by the Democratic Lawyer’s Association – an organ of the CPI(M) – to probe police firings across West Bengal on the day of a general strike, in which 25 people were killed: the other members were Mr. Arub Prokash Chatterjee, Justice A. N. Mulla, and Justice Sarju Prasad.47 He also fought against

44 See Nilanjan Dutta, “With Little Victories and Big Defeats,” in Sujato Bhadra, ed. Civil Rights: Past and Present (Calcutta: Association for the Protection of Democratic Rights, 1986) and “From Subject to Citizen,” in Michael Anderson and Sumit Guha, eds. Changing Conceptions of Rights and Justice in South Asia (SOAS Studies on South Asia, 2001). Curiously, in this latter piece he refers to these figures, including Chatterjee, as “non-partisan” intellectuals. 45 Dutta, “With Little Victories,” 45. Dutta attributes the decline of the CLC to its sectarianism, since it was no longer relevant to the communists after their cadres were released from jail in the early 1950s. 46 See N. C. Chatterjee, “Presidential Address to the All-India Civil Liberties Conference,” 26 April 1958 (Ambala). D. R. Kakati writes that Chatterjee was to have presided over the All Assam Convention of Civil Liberties in mid-1951, but could not attend because of illness. See D. R. Kakati, “The Civil Liberties Movement in Assam,” in APDR, ed. Civil Rights Past and Present (Calcutta, 1986). 47 See Nilanjan Dutta, “Democratic Rights in West Bengal – Issues and Approaches,” in A. R. Desai, ed. Expanding Government Lawlessness and Organised Struggle (Bombay, 1991). Somnath Chatterjee writes that his father organized the constitution of “the important Mulla Commission and Sarjoo Prasad Commission of Enquiry, non-official bodies that looked into human rights violations and civil liberty issues” (17). Here I believe is confusing

Civil liberties in the early constitution 25 the detention of communist leaders such as Jyoti Basu under the Defence of India Rules. Indeed, he was close to many members of the undivided Communist Party of India (CPI), then led by a great admirer of his, S. K. Acharya.48 In the mid-1960s, he also wrote a book on emergency powers and the law.49 Along with M. C. Setalvad and others, he was also involved in campaigns against the Defence of India Act and the declaration of emergency following the Chinese withdrawal in 1962.50 These facts by themselves suggest that Chatterjee’s involvement in the Organiser case was not a sectarian one. But consider in addition a remarkable speech of his to the Rajasthan Bar Council, entitled “Law and Lawyers in Free Bharat.” Extracts from this speech were published by the Organiser in May 1950, in an issue which also carried the reports of the oral arguments before the Supreme Court.51 The speech begins as one might expect, with the invocation of a shared history between Bengal and Rajasthan in which figures such as Rana Pratap are given pride of place. He alludes circumspectly to the Bengal riots as involving devastation and inhuman atrocities, and extends gratitude to the people of Rajasthan for an expression of solidarity in this “hour of peril.” The “fundamental unity of culture and sentiments” (“reinforced by the logic of mutual national interests”) which binds Bengal to Rajasthan as well as to “the rest of Bharat” is an assuredly Hindu one. Nevertheless, the bulk of the speech, which concerns the importance of lawyers and the judiciary in protecting personal liberty under the new constitution, does not hark back to an imagined Hindu past, but rather points to strands of contemporary liberalism evinced in England and the United States. The justification for

the 1966 Commission with later official commissions on corruption and improper conduct, one headed by Justice Mulla in Kerala in 1967, and the other headed by Justice Sarju Prasad in Orissa in 1971. See A. G. Noorani, “Commissions of Inquiry: Skeletons in the cupboard,” India Today, 15 June 1977, http://indiatoday.intoday.in/story/commissionsof-inquiry-skeletons-in-the-cupboard/1/435599.html, last accessed 24 December 2015. According to Somnath Chatterjee (19), the Democratic Lawyers’ Association was an organ of the CPI(M). 48 The CPI approached him to contest a Lok Sabha bye-election as an Independent candidate with their support in 1963, and then again in the fourth general elections in 1967; it was only with his permission that Somnath Chatterjee himself joined active politics as an Independent with CPI(M) support in the fifth Lok Sabha elections in 1971. See Chatterjee op cit., 17–22. 49 P. Parameswara Rao, Emergency and Law, with Special Reference to India (Bombay: Asia Book House, 1966). 50 See Austin, Working a Democratic Constitution, pp. 65–66. Chatterjee contributed, along with Setalvad and others, to a volume, Parliament: Emergency and Personal Freedom – Opinions of Jurists (New Delhi: Bar Association of India, 1963). He was also signatory to an appeal to the President and Prime Minister to revoke the Emergency and restore fundamental rights, signed by all former Chief Justices of India as well as other eminent personalities. 51 N. C. Chatterjee, “Law and Lawyers in a Free Bharat,” Organiser III:36, 1 May 1950, p. 8 and 19.

26  Arudra Burra the enforcement of Fundamental Rights is the classical liberal doctrine of limited government: The Bharatiya Constitution has prescribed and guaranteed certain Fundamental Rights like the rights of free speech, free association, freedom of movement and security from unlawful detention to all the citizens. It is the prerogative and the duty of the Judiciary to dispense Justice in such a manner that the Fundamental Rights may be effectively enjoyed by the citizens of Bharat. Every Government is apt to have an unconscious bias in its own favour. Power has sometimes a corrupting influence and consciously or unconsciously, a Government is often led to a position from which it does not like to retrace. When there is no organised Opposition Party functioning in a State, opposition is likely to be crushed, criticism may be resented, the press may be muzzled and the executive may be vested with extraordinary powers. It is for the Judiciary to step in and to prevent the violation of the Constitution and the infringement of the rights and liberties of the people which have been guaranteed under the new dispensation. The heroes now invoked are judges of the US Supreme Court such as Cardozo, Holmes, and especially Brandeis (“It is the dream of every free-thinking citizen that Independent Bharat will produce Judges and Jurists like Mr. Justice Brandeis, who will have the vision and the courage to utter words pregnant with wisdom and hope”). He goes on to quote Brandeis’ famous dissent in Whitney v. California: Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed that freedom to think as you will and to speak as you think – are means indispensable to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine. It might seem surprising that an office-bearer of the Hindu Mahasabha would appeal in a defence of free speech not some ancient or imagined Indian past, but a liberal judge of the American Supreme Court, whose views echo Mill’s defence of freedom of speech as involving a “marketplace of ideas.” In the conclusion of this chapter, I will argue that the appearance of contradiction is illusory – not because of some deep fact about the ideology of the Hindu right, but because of a deep fact about the nature of civil liberties, at least as classically construed.

V Chatterjee was not alone in articulating a civil libertarian position based upon the fear of arbitrary government action. In 1948, Chatterjee’s associate P. R. Das

Civil liberties in the early constitution 27 wrote a remarkable pamphlet entitled “Liberty Under the Draft Constitution,” which was a critique of the proposed Art. 21 formulation of the guarantee of life and liberty. The criticism was the familiar one that without a “substantive due process” guarantee, the article allowed the legislature to pass any law restricting liberty, as long as it met the procedural requirements to make it a valid law. But Das articulated the worry in especially clear terms, pointing to the inherent dangers of being corrupted by power: “We, the people of India” are about to give ourselves a Constitution; and it is of the utmost importance that we should examine “The Draft Constitution” with a view to ascertaining whether it embodies a guarantee of personal liberty against the coercive powers of the State. It has been suggested that a guarantee of personal liberty, however important under a monarchical government, a foreign government, is of no moment in a constitution of a Government framed by the people for themselves and under which public affairs are to be managed by an Executive chosen by the People. So it was argued by the framers of the American Constitution; and in the Constitution originally framed, there is no guarantee of personal liberty at all. But experience showed that such a guarantee was necessary even though the Executive were chosen by the people themselves. Why? As Pandit Nehru has said somewhere in his Discovery of India – “Power corrupteth a man and absolute power corrupteth absolutey” [sic]. The aggressive tendency of power is such that it was deemed necessary by the fathers of the American Constitution to enact this guarantee, and this they did by the celebrated Fourteenth Amendment.52 In 1949 Das had presided over the All-India Civil Liberties Conference at its first session in Madras. For this inaugural session, the Madras Civil Liberties Union published a volume of reports concerning civil liberties violations across the country. Many of these reports concerned violence against trade union leaders and communists. But it is clear that the civil liberties community saw restraint of communists as part of a larger problem. One of the reports, for instance, reprints the answer to a question posed in the Madras Assembly on the number of RSS prisoners detained in Madras Province in 1949. The report presents this information in two columns, one each for communists and the RSS (see Figure 1.6).

52 P. R. Das, “ ‘The Draft Constitution’ and Personal Liberty,” Indian Law Review Office (to be published in a combined issue of the Indian Law Review: vol II, 3&4). Das was also the lawyer for a number of prominent zamindars in zamindari abolition cases in the early 1950s, starting with Sir Kameshwar Singh (Darbhanga) v Province of Bihar (AIR 1950 Patna) and continuing through Shankari Prasad Deo v The Union of India and the State of Bihar (1952 (3) SCR 89). In the latter case he was joined by N. C. Chatterjee, who had argued in Bela Banerjee’s case that a law providing for the acquisition of property for evacuee purposes was unconstitutional; apparently Chatterjee was against land ceilings altogether. See Austin, Working a Democratic Constitution, 90. Das also gave the Presidential Address at the All-India Democratic Convention in Lucknow in May 1950, which had been organised by zamindars: he says in his speech that he is not a communist, and believes in private property (Syama Prasad Mookerjee’s papers, subject file 54, Ist installment).

28  Arudra Burra

Figure 1.6  “R.S.S. Prisoners in Madras” (Madras Civil Liberties Union, 1949)

In a companion volume to this conference, Civil Liberty under the New Constitution, S. G. Vaze of the Servants of India Society gave an analysis of three freedoms threatened in the new constitution – those of association, speech, and personal liberty. He begins his analysis of freedom of association by mentioning the RSS ban of February 1948, discussing it in classic civil libertarian terms: Thereupon followed, throughout the country, the detention of thousands of R.S.S. workers in custody without trial, and when this continued for several

Civil liberties in the early constitution 29 months, a protest movement was carried on by the R.S.S. on a very large scale, demanding that the ban on the Sangh be lifted and that those who were suffering imprisonment without any charge being proved against them be either released or put on their trial for specific charges. A sentence later he makes a comparison with the Communist party: Like the R.S.S., the Communist party was also declared an unlawful association in West Bengal, and it is reported that the Central Government is considering the question of banning the party throughout India. Although in provinces other than West Bengal the party as such is not under a ban, this has not prevented the governments in these provinces from depriving communists of their personal liberty and detaining them in prison for an indefinite period under various extraordinary laws. It is obvious that communists have escaped being declared members of an unlawful association only because of the power conferred by these laws upon the executive to impose what restraints it chooses upon their personal freedom.53 S. G. Vaze was the Secretary of the All-India Civil Liberties Council, which was based out of the Servants of India Society in Pune. Very little has been written about what seems to have been a remarkable organization.54 It published a monthly newsletter called the Indian Civil Liberties Bulletin, edited by Dr. R. G. Kakade.55 After the Madras conference in 1949, it held All-India Civil Liberties Conferences in Patna (1950), Nagpur (1951), and Bombay (1952); the Patna proceedings were covered approvingly by both CrossRoads as well as the Organiser. Its office-bearers included trade union leaders such as N. M. Joshi of the All India Trade Union Congress, as well as prominent members of the Hindu right, such as Syama Prasad Mookerji, who presided over its Nagpur session.

53 The RSS/Communist comparison was made frequently, for instance in Parliament (see e.g., Patel’s speech to Parliament reported on 18 March 1949, Collected Works of Sardar Patel vol. XIV p. 105). In 1950, the Organiser carried a criticism of the Supreme Court’s judgement in the A K Gopalan case, in which it upheld the constitutionality of preventive detention (Gopalan was a prominent Communist leader from Kerala). 54 It merits one mention in passing in Somnath Chatterjee’s memoirs, and a couple of footnotes in Granville Austin’s history of the Indian constitution, and none at all in the otherwise fascinating accounts of the histories of the civil liberties movement by Nilanjan Dutta, in “From Subject to Citizen,” and “With Little Victories and Big Defeats”. The annual reports of the Servants of India Society give something of a flavour of the Council’s activities. Indeed, the Society had a role to play in the defence of civil liberties beyond the activities of the members in the council: H. N. Kunzru, its head, and Lakshmi Narayan Sahu, a Senior Member, were both members of the Constituent Assembly and raised many civil liberties issues there. Vaze’s name is also mentioned by Damodar Swarup Seth in connection with the right to freedom of speech, in a debate on the draft Constitution on 1 December 1948. 55 To give a flavour of the contents of these Bulletins, Granville Austin reports (Working a Democratic Constitution, 62) that the Bulletins for August and September 1952 carried lengthy analyses of the law of preventive detention, along with reports of individual detention cases and parliamentary debates.

30  Arudra Burra The Council also had an interesting international connection. It was an affiliate of the International League for the Rights of Man, established in New York in 1941, and headed by Roger Baldwin, who also founded the ACLU; P. R. Das was a member of the Advisory Committee of the League.56 The League’s work was directed mostly at the United Nations, and the Council corresponded with the Human Rights Commission in 1953 during its deliberations over the Covenants on civil and political rights as well as social and economic rights.57 The Council’s re-print of Nares Chandra Sen Gupta’s presidential address in 1952 published this ringing endorsement by Baldwin of the Bulletin: The Indian Civil Liberties Bulletin is the most complete coverage of national issues of any publication in the world specializing in civil rights. It combines scholarly legal research with forthright positions in the best tradition of principles now generally accepted by always highly controversial in application. To us abroad it conveys the most satisfactory interpretation of civil liberties which we get from any country. In the present formative state of Indian law and practice, and in the face of much journalistic misinformation about India here, we find the BULLETIN invaluable. The BULLETIN deserves a far wider audience in India than it appears to have, considering the imperative need in any democracy of critical opposition to any inroads on rights presumably guaranteed by law. Liberty lives only by the courageous and persistent efforts of its champions and defenders. The BULLETIN has that spirit, as well as fidelity to fact and principle, uncompromised by partisanship of any sort. The presidential addresses to the annual conferences offer some useful insights into thinking about civil liberties in this period. One sees a distinct libertarian strand in Atul Chandra Gupta’s address at the Patna conference in 1950: Hitler is dead and Germany is down. But the cult of immediate success by harnessing the total energy of a nation is stalking abroad. . . . But in the process the soul of the nation dies within. Great thoughts and great imagination disappear, as they only flourish when the mind is free and not driven by problems authoritatively set. Between the regulation of a police-state and the regimentation of a super-welfare state it is not easy to say which is more killing.

56 See Jan Eckel, “The International League for the Rights of Man, Amnesty International, and the Changing Fate of Human Rights Activism from the 1940s Through the 1970s,” Humanity: An International Journal of Human Rights, Humanitarianism, and Development 4:2, Summer 2013, pp. 183–214. 57 See, for instance, the letter of March 31, 1953 from S. G. Vaze, Secretary of the Council, to J. P. Humphreys. United Nation Archives at Geneva, file: SOA 317/1/01 (3) G – Draft International Declaration on Human Rights, Draft International Covenant on Human Rights and the Question of Implementation, Comments from Organizations. Thanks to Ananda Burra and Nathan Kurtz for bring this letter to my attention, and to Neyko Iltchev of the United Nations Archive for making it available to me.

Civil liberties in the early constitution 31 Another insight is that national independence was compatible with the loss of individual liberty. Here is how Nares Chandra Sen Gupta makes the point in 1952, in an address chiefly devoted to the topic of preventive detention. He refers to the fact that leaders of the Congress have been charged with hypocrisy for defending the very policies which they agitated against before Independence: I do not forget that the ministers are not frank enough to acknowledge their faith. They insist there is a distinction. Those who drove the screw in the past were aliens. The same screw would change to sweetmeat in the hands of a national government. Not so, I am sure, to the sufferer. The animal which is having its tail twisted would not feel the difference if the hand that twists it changed from white to black. But if these stalwarts of the Congress can be charged with having eaten their words, I do not think that the Congress organisation, which is now ruling us, can fairly be charged with such a volte face. For since the famous Karachi resolution it has always avoided any reference to the term ‘freedom’ and set their goal to be ‘independence,’ pure and simple, which is now in their pocket. I had the temerity then, thanks to the editorial hospitality of our good friend, Mr. Vaze, to point out that the independence spoken of by the Congress did not necessarily mean ‘liberty’ or ‘freedom.’ I suppose everybody will now acknowledge that I was right. The Congress was not committed to personal freedom of the citizen as part of its goal. Many writers on the history of civil liberties in India have noted that the Congress abandoned its civil liberties platform after coming to power: at the Madras civil liberties conference in 1949, the lawyer A. K. Pillai remarked that “[f]rom our experience, the all-too-limited liberties which the subject had under the British regime, have themselves become the first casualty in the wake of the advent of national independence.”58 But it is important to see that Nares Chandra Sen Gupta is also making an important conceptual point about the distinction between political sovereignty and personal liberty. This is a distinction which is often obscured by the use of the term ’freedom’ to refer to both. Berlin makes this point especially clearly in his discussion of Mill: The third characteristic of this notion of liberty is of greater importance. It is that liberty in this sense is not incompatible with some kinds of autocracy, or at any rate with the absence of self- government. Liberty in this sense is

58 In 1936, Jawaharlal Nehru set up the Indian Civil Liberties Union, but it seems to have run out of steam well before Independence. See Datta, “From Subject to Citizen,” 280 and more generally Munmun Jha, “Nehru and Civil Liberties in India,” International Journal of Human Rights 7:3, 2003; also Kalyani Ramnath, “ADM Jabalpur’s Antecedents: Political Emergencies, Civil Liberties, and Arguments from Colonial Continuities in India,” American University International Law Review 31:2, 2016, pp. 228–231.

32  Arudra Burra principally concerned with the area of control, not with its source. Just as a democracy may, in fact, deprive the individual citizen of a great many liberties which he might have in some other form of society, so it is perfectly conceivable that a liberal-minded despot would allow his subjects a large measure of personal freedom. The despot who leaves his subjects a wide area of liberty may be unjust, or encourage the, wildest inequalities, care little for order, or virtue, or knowledge; but provided he does not curb their liberty, or at least curbs it less than many other regimes, he meets with Mill’s specifications.59

VI I think there is enough evidence to suggest that the story of the CrossRoads and Organiser cases is part of a larger story of a civil libertarian tradition, now lost, whose focus was on the arbitrary exercise of state power, regardless of who exercised it, and whose members came from both ends of the ideological spectrum.60 One might continue to tell this story in purely political terms, and argue that even if the tradition was non-sectarian, it was no more than an alliance of convenience or expediency, based on the experience of post-Independence repression at the hands of the Congress, and the principle that my enemy’s enemy is my friend.61

59 Isaiah Berlin, “Two Concepts of Liberty,” in Henry Hardy, ed. Liberty (Oxford University Press, 2002), p. 176. 60 I have not said anything to establish a direct link between the CrossRoads case and this civil libertarian tradition, but it is plausible to think that such links existed. Romesh Thapar was involved with the Bombay Civil Liberties Union, which also included trade union leaders such as Dinkar Desai who were colleagues of Vaze’s in the Servants of India Society. The lawyer for CrossRoads in the Supreme Court was the Madras lawyer, C. R. Pattabhi Raman, who also represented V. G. Row two years later in a celebrated case regarding the freedom of association. Row was a well-known left lawyer who was accused by the State of Madras of supporting the Communist Party, which had been banned in August 1949. It seems likely that Row would have been a member of the Madras Civil Liberties Union, one of whose members, K. G. Sivaswamy, was also a member of the Servants of India Society, and an office-bearer of the All-India Civil Liberties Council. (Interestingly, Row accompanied M. K. Nambiar in his defence of the Communist leader A. K. Gopalan, who challenged the constitutionality of the Preventive Detention Act in 1950 – in this case, Pattabhi Raman appeared for the State of Madras!) 61 It is worth noting, however, that these civil libertarians would also, precisely because of their political ideologies, have had a more ambiguous or oblique relationship to the Congress-led nationalist movement before Independence as well, so Congress-repression cannot be the whole story. In an interview to Smitu Kothari, Justice V. M. Tarkunde, one of the founders of the People’s Union for Civil Liberties (PUCL), writes that his own political leanings pre-Independence were those of M. N. Roy, whose priorities in the 1940s were with the anti-fascist struggle rather than the movement for Indian independence. See Smitu Kothari, “An Interview with V.M. Tarkunde,” in Smitu Kothari and Harsh Sethi, eds. Rethinking Human Rights: Challenges for Theory and Action (New York: New Horizons Press and Delhi: Lokayan, 1989). Tarkunde makes a passing reference to Vaze (spelled “Waze” in the transcript).

Civil liberties in the early constitution 33 It is hard to argue against such a reading without more evidence, though certainly the story of the All-India Civil Liberties Council does not seem to be entirely susceptible to such an explanation. I want to conclude by suggesting that an ideological commitment to civil liberties, understood as a doctrine of limited state power, is part of what makes such alliances possible. This represents both a strength and a weakness in the classical civil libertarian position. The strength of the position lies precisely in its non-partisan character: one claims that state power should be checked regardless of who is in power, partly because of the corrupting potential of the exercise of that power. If one recognises the temptations of those in power to curb dissent and political opposition, regardless of who is in power, one is lead naturally to something like the Voltairean position on protecting speech regardless of what is said: content-neutrality follows as a corollary to protections against potential suppression by the institutions of the state. At least this is true of speech which represents or advocates the ideologies of particular political parties. It is precisely the non-partisan character of such a civil liberties position that allows it to accommodate a range of partisan political ideologies on other issues. One systematic exposition of this line of thought within our own intellectual and political tradition was made by Rammanohar Lohia in a pamphlet on civil liberties published in 1936.62 Lohia’s conception of civil liberties is clearly confined, as he puts it, to “the struggle that the citizen has eternally waged against his State.” On his view, “[c]ivil liberties are violated when the State either itself attacks the various freedoms of opinion and association of its citizens or permit private gangsterdom to do so. The basic factor in all such State and private violence is the fear of criticism and revolt against the existing system of laws and government.” His analysis of such violations is a classic constitutional one, which locates at least one source of the problem in the fact that repressive or vague laws “deliver the citizen to the caprices of the Executive.” Lohia points out that a special defence of civil liberties as such is important even when there are broader political battles to be fought. One of these benefits is instrumental: “the front of civil liberties is more broad based and inclusive than that of freedom and progress. Among the ranks of freedom and progress, there may be differences of opinion on other matters but they will all unite on an issue of civil liberties.” Of course the weaknesses of such a position are immediately apparent as well. If one adopts a posture of uniform suspicion against the use of state power, it is hard to argue for the expansion of state power, in either the economic or social sphere. At least one needs to do so by way of an argument which distinguishes at an institutional level those laws which might be susceptible to executive abuses from those which are not. This kind of civil libertarian would at least start from a position of suspicion at laws such as the Prevention of Sati (Glorification) Act and

62 Rammanohar Lohia, The Struggle for Civil Liberties (Allahabad: Foreign Department, All India Congress Committee, 1936).

34  Arudra Burra the Maharashtra Anti-Superstition Ordinance. The same kind of civil libertarian might wonder why an organisation like the People’s Union for Civil Liberties needs to be involved, for instance, in PILs over the Right to Food.63 Finally, such a civil libertarian might welcome the involvement of “Men’s Rights” groups who opposed s. 498-A of the Indian Penal Code in debates around the Juvenile Justice Bill. A more subtle, but equally familiar, weakness with the position is that it makes most sense upon the assumption that there is adequate institutional and intellectual space outside the realm of state-controlled activity for competing political ideologies to be articulated and debated. But if this public sphere is itself marked by deep inequalities (whether economic or otherwise), then the protection of civil liberties will have an inherently conservative bias. As Upendra Baxi pointed out a long time ago, an anti-state discourse is no help when it comes to the eradication of social evils such as sati and untouchability.64 This is also true in the context of free speech – hence the attractions of a highly speech-protective standards for a politician like Subramanian Swamy. The reasons why the particular strand of (what I would like to regard as) a certain form of liberalism embodied in organisations such as the All-India Civil Liberties Council did not survive are then perhaps not so hard to fathom: there has been a powerful consensus in Indian political life that state power should be used in the service of social and economic reform, and a powerful awareness of the inequalities of the political process. A civil liberties movement premised upon identifying the state as a primary source of oppression may have little traction in situations where, first, non-state actors are equal if not greater sources of oppression; and second, where the state can in some cases at least hold out the prospect of protection from such oppression.65 Uday Mehta makes this point vividly in the context of a discussion of the place of freedom in Indian constitutionalism: Arendt was clearly wrong to identify political power that concerns itself with social issues as necessarily leading to terror. But Arendt’s error was one of exaggeration and not of a lack of insight, because her trenchant statement does flag a powerful tendency in the functioning of political power when such power is obligated to primarily concern itself with social questions. The prophecy regarding terror has not been borne out in India. Constitutionalism, especially when it is democratic, clearly checks tyranny and many aspects of absolutism. But the commitment to redress historical injustices, alleviate the sufferings of the body, create social equality, or a unified nation, in the manner envisioned by the Constitution, has produced a form of political

63 See PUCL vs State of Rajasthan. 64 See Upendra Baxi, “Law, Democracy and Human Rights,” in Kothari and Sethi, ed. Rethinking Human Rights. 65 Many thanks to Andre Betèille for emphasizing this point to me.

Civil liberties in the early constitution 35 absolutism. Constitutionalism in India has not led to a legacy that limits the power of the state or constrains its reach. In this sense our constitutionalism is very much in the tradition of Hobbes, where there was never a suspicion of power, because power was identified as the condition of life. Similarly the absolutism of politics and the state has, perhaps, also contributed to a culture in which the prestige of power in all segments of the population is inordinately high. Our constitutionalism constitutes power and increases and celebrates its ambit. It is only through politics and the specific kind of power it sanctions that the nation can be imagined, administered and made just. But, it must be added, in that vision, freedom is consigned to a distant prospect and the tendency for political power to operate without limits deeply ingrained, even if it is not always acted on.66 Mehta’s observations lead us back to an old question about the relation between concerns for individual freedom and concerns for social or economic justice. As I have noted, it is not difficult to characterise contemporary invocations of civil liberties as stemming from a desire to protect narrow parochial (“sectarian”) interests, rather than an interest in defending civil liberties “as such.” Putting the point in this way suggests that what is at stake is some kind of failure of character – a moral weakness or blindness on the part of those raising such concerns in such a selective manner. I suspect, however, that this obscures a deeper diagnosis of the problem. Perhaps one reason why we lack a “non-sectarian” vision of civil liberties is simply that concerns for individual freedom have in general been overshadowed by concerns to achieve social or economic justice in our political thinking. If there is a failure here, it may lie in the domain of theory rather than of practice. Many criticisms of the civil liberties movement in India have taken the form that these movements have mistakenly regarded so-called Western universalist conceptions of rights as applicable to the Indian context.67 Taken with respect to the classical civil liberties, I suspect the criticism misses the mark: for one thing, they are addressed to the state, and it does not take a very great conceptual apparatus to demand justifications, say, for being locked up in jail. The harder question for a contemporary civil libertarian, I think, is a theoretical one. Given what we know about the exercise of state power in our context (and in the possibilities of institutional reform), how much discretion should we be willing to give to executive authorities to decide when to lock people up or punish them in other ways? If the answer to this question depends only upon the substantive goals for which some particular law has been passed – the eradication of sati, say, or for that matter cow protection – then it is not easy to escape the charge of hypocrisy, regardless of one’s political ideology.

66 Uday Mehta, “The Social Question and Absolutism of Politics,” Seminar 615, 2010. 67 This is the theme of many of the essays in Rethinking Human Rights.

36  Arudra Burra If these substantive goals in turn depend for their realisation on abridgements on speech, we are at some distance from a Voltairean world. This does not mean that, given the choice between upholding the Voltairean dictum and arguing for strong limitations on state power, we must choose the former over the latter. But it is important to keep in mind that the choice may have to be made, and that it is not easy to see how to make it.

2 The constitutional politics of judicial review and the Supreme Court’s human rights discourse Rajgopal Saikumar Introduction Any discussion of human rights has to take place at the intersection of a moral, legal and political discourse. Human rights articulate moral claims that demand non-negotiable protections; its legal aspect is often enshrined in laws that courts interpret and enforce; and its political aspect lays down standards to test the legitimacy of institutions.1 A distinctively original aspect of India’s human rights discourse is in the way it undermines the distinction between civil-political rights and socio-economic rights. The Supreme Court has been an important catalyst in this reconception. In India, human rights entered the juridical discourse not via its enshrinement in statutory law but through judicial decisions, often in judicial review of legislative and executive action. Judicial review is typically considered a negative instrument that prevents or deems void public actions that inter alia violate human rights.2 But in India, judicial review has become a ‘positive instrument’ to articulate and evolve rights that are then enforced via various interinstitutional mechanisms. A “typical narrative” of human rights law in India is articulated as follows:3 they often begin with generically stating relevant international conventions that India

1 This chapter makes the assumption that there ‘are’ human rights; that each and every human being is inviolable (in a moral sense if not legal) and therefore certain forms of violence are not tolerable regardless of any given situation. At the same time, my reference to human rights are to the entrenched rights articulated in entrenched legal texts, be it international laws and conventions or constitutions and statutes. See Michael J. Perry, “Human Rights Theory 1: What Human Rights? Against the Orthodox View,” in Emory Legal Studies Research Paper Series (No. 15–349); Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 3rd ed., 2013). 2 The question of whether democracy should authorise judicial review for enforcement of human rights. See, e.g., Jeremy Waldron, “The Core of the Case Against Judicial Review,” Yale Law Journal (Vol. 115; 2006) 1346; Mark Tushnet, “Abolishing Judicial Review,” Constitutional Commentary (Vol. 27; 2011) 581; Pratap Bhanu Mehta, “The Inner Conflict of Constitutionalism: Judicial Review and the ‘Basic Structure’,” in (eds.) Zoya Hasan, E. Sridharan, and Ors, Indian’s Living Constitution: Ideas, Practices, Controversies (New Delhi: Permanent Black, 4th impress, 2013) 179; Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford: Oxford University Press, 2011). 3 For instance most essays contained in the followed books present the abovementioned ‘typical narrative’: See T. R. Subramanya, “Historical Background: Early Development of Human

38  Rajgopal Saikumar is a signatory to, such as the Universal Declaration of Human Rights (UDHR), Covenant on Civil & Political Rights and the Covenant on Economic, Social & Cultural Rights, etc. They go on to mention relevant provisions from Part III (Fundamental Rights) and Part IV (Directive Principles) of the Indian Constitution that are analogous to human rights. And finally, they present relevant Supreme Court judgments, mostly from the late-1970s onwards, that juridically align human rights with the Constitution. This narrative presents a coherent movement of judicial decisions that synthesise the former with the latter. The process is presented as legal and formalist, the development is largely doctrinal and rarely political. Yet this ‘typical narrative’ is silent on several important questions. Why did the Supreme Court pick up the human rights discourse predominantly since the late-1970s if India has been a signatory to the UDHR since Independence? Why did human rights law enter the discourse through courts rather than the legislature and what does this tell us about the dynamics of separation of powers? What explains the contemporary prominence of human rights law and the popular trust in Supreme Court as the protector of human rights? Although I shall not directly respond to these questions, my point is to merely note that the abovementioned ‘typical narrative’ is inadequate to deal with substantive questions about how and why human rights law functions the way it does in India. The primary aim of this chapter is to suggest an account of the politico-legal developments that led to the juridical discourse of human rights in India. This chapter argues that the judiciary’s articulation of human rights has to be seen in the context of an expanding judicial power over parliamentary sovereignty. It employs judicial review as a heuristic to bring forth the politics that underlies these legal developments. The content of human rights law in India is shaped and formed by Public Interest Litigation (PIL), and the problems and possibilities of it seep into human rights law as well. PILs themselves emerge in the context of raging civil liberties movements and the politics that succeeded Prime Minister Indira Gandhi’s declaration of internal Emergency in 1975. Embedding human rights in such a context, emplotted in the history of judicial review, will hopefully throw light on why human rights law has emerged the way it has in India.

Strong system of judicial review Globally, judicial review has become a significant instrument to scrutinise actions and decisions of public authorities for ensuring consistency with constitutional norms and internationally accepted human rights.4 Consequently, a significant

Rights” and Justice A. S. Anand “Preface,” in (eds.) Justice A. S. Anand and A. V. Afonso, Human Rights in India: Theory and Practice (Shimla: IIAS, 2011); Alok Pandey (ed.), Human Rights in India: Changing Dimensions (New Delhi: VLMedia Solutions, 2015); Justice S. Radhakrishnan, “Development of Human Rights in an Indian Context,” International Journal of Legal Information (Vol. 36, No. 2; 2008) 303–331. 4 A growing number of democracies post World War II empowered the judiciary to enforce constitutional norms, including human rights norms, to principally limit powers of the

Constitutional politics of judicial review 39 global trend since the late-twentieth century has been the expansion of judicial power leading to what some commentators have called the ‘judicialisation of politics’, or a ‘juristocracy’.5 Given the wide spectrum of practices around the world, a distinction is made between a strong system of judicial review and a weak system.6 In a strong system, the judiciary usually has the power to strike down, read down so as to make compatible, or decline to apply, a law that is unconstitutional and/ or in violation of human rights. In a weak system of judicial review, the judiciary may have the power to scrutinise public action for its compatibility with the Constitution (or analogous human rights) but cannot decline to apply them. For instance, the courts may review a statute and issue a ‘declaration of incompatibility’ on the event that the said law is found to be incompatible with a Convention Right, but such a declaration does not affect the validity or operation of the provision, nor is the declaration binding on the parties to the proceedings.7 Given such spectrum of practices, India is undoubtedly one of the strongest systems of judicial review in the world.

The problem of inferring human rights The framers of the Indian Constitution enshrined Fundamental Rights (Part III) with predominantly civil and political rights, and consigned socio-economic rights to the non-justiciable Directive Principles of State Policy (Part IV).8 India

government. I shall not get into these discussions in this chapter, but see Stephen Gardbaum, “The New Commonwealth Model of Constitutionalism,” American Journal of Comparative Law (Vol. 49; 2001) 707, 711–718. 5 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2007); C. Neal Tate &and Torbjorn Vallinder, “The Global Expansion of Judicial Power: The Judicialization of Politics,” in (eds.)) C. Neal Tate and Torbjorn Vallinder, (The Global Expansion of Judicial Power (NYU Press, 1997); In the Indian context, See, Pratap Bhanu Mehta, “The Rise in Judicial Sovereignty”, Journal of Democracy (Vol. 18, No. 2; 2007) (Vol. 18; No. 2; 2007) Sanjay Ruparelia, “A Progressive Juristocracy: The Unexpected Social Activism of India’s Supreme Court,” in Kellogg Institute Working Paper No. 391 (No. 391; 2013). 6 See Jeremy Waldron, “The Core Case Against Judicial Review,” Yale Law Journal (Vol. 115; 2006) 1354–1355. 7 Laws such as the New Zealand Bill of Rights Act, 1990; Section 4 of the Human Rights Act, 1998 in the United Kingdom; and Section 5 of the European Convention on Human Rights Act, 2003 (Irish law). The New Zealand Bill of Rights Act, 1990 sets out a bill of rights and freedoms that can be curbed only to “reasonable limits”. But section 4 makes it clear that legislation cannot be struck down where limits on rights are found to be unreasonable. In Taylor v. Attorney-General [2015]NZHC 1706 decided on 24 July 2015, one of the issues in dispute was that given an inconsistency, does the Court have jurisdiction to grant a declaration of inconsistency? This is the first case in New Zealand where a judge (Justice Heath) issued a declaration of inconsistency resulting in a legislative reconsideration of a prisoner voting ban law. 8 The fundamental rights include Article 14 which enshrines the ‘equal protection of laws’ and ‘equality before law’, with later Articles laying this out in more detail by providing for a non-discriminatory clause and affirmative action. Article 19 safeguards the freedom of speech, movement, association, trade and profession, while the right to life and liberty is enshrined in

40  Rajgopal Saikumar does not have a precise set of human rights expressly legislated for. The Protection of Human Rights Act, 1993 vaguely defines human rights as “rights relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”9 The judicial and political institutions have recognised the normative significance of human rights as having a foundational value in the Indian ethos. The Supreme Court has over time ensured a closer alignment between constitutional law and human rights. It has, through an intra-textualist reading of fundamental rights and directive principles, in light of the grander ideals of the Constitution, and India’s international obligations, read human rights into Part III of the Constitution. But in judicial review cases, this act of ‘inferring’ human rights by reading them into the Constitution exacerbates the ‘legitimacy problem’ that such constitutional mechanism already faces. The act of inference inevitably leads the Courts to making contestable value judgments that tend to subvert the democratic ideal of ‘government by the people’ and hence considered deeply problematic.10 Yet, human rights are precisely those rights that limit the power of the elected representatives through necessary judicial intervention. Hence there is a paradoxical play of constitutionalism and democracy here, which Chantal Mouffe calls the paradox of liberal democracy.11 The Supreme Court, from the 1980s, grapples with this paradox by popularising the juridical institution.12 When the Courts tend to create, enforce and monitor the implementation of human rights (without adequate legislative backing) the competence problem also



Article 21. Religious freedoms are covered in Article 25–27 and cultural minorities are protected by Article 28–30. Article 32 grants individuals the right to move the Supreme Court for a remedy for breach of any fundamental rights. Part IV lays down the Directive Principles of State Policy, wherein Article 37 explicitly makes these duties non-enforceable in Court, but nonetheless are fundamental guiding principles of governance. These include the duty to reduce inequalities in status and opportunity, distribution of resources to serve the common good, and other such socio-economic obligations.  9 Section 2(f), Protection of Human Rights Act, 1993 defines “International Covenants” as: “the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights adopted by the General Assembly of the United Nations on the 16th December 1966 [and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify].” 10 Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 2000) chs 6–7. 11 Chantal Mouffe, “Carl Schmitt and the Paradox of Liberal Democracy,” Canadian Journal of Law & Jurisprudence (Vol. 10; 1997) 21; Mouffe, in reading Schmitt, suggests that liberalism consists of an abstract equality that treats every individual as equal. A democracy on the other, is inherently based on exclusions. It is the ‘constitutive outsides’ that are at the basis of a democratic institution. This is the paradox of liberal-democracy. 12 I shall elaborate on this later in this chapter. See Upendra Baxi, “Demosprudence Versus Jurisprudence: The Indian Judicial Experience in the Context of Comparative Constitutional Studies,” Macquarie Law Journal (Vol. 14; 2014) 3–23; Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (New Delhi: Cambridge University Press, 2016).

Constitutional politics of judicial review 41 becomes acute. For instance, when the Courts want to ensure enforcement of socio-economic rights such as of food, education and shelter, they have little or no expertise in the intricate policy decisions that such governance involves. The Supreme Court has attempted to evolve innovative litigation practices to deal with this problem, but there are few studies to show how effective this has been.13

Types of judicial review in India The Supreme Court of India and the High Courts are entrusted with the power of judicial review over legislative and executive actions. There are four main types of judicial review: (1) review for jurisdictional competence of legislative and executive actions; (2) review for compliance with fundamental rights; (3) basic structure review; and (4) general constitutional review (violation of any other provision of the Constitution). Given the focus on human rights, this chapter shall deal only with (2) and (3) types of review: First, Review for Compliance with Fundamental Rights [Article 13 review]: Article 13 of the Indian Constitution explicitly provides for judicial review. It states that all laws in force in the territory of India, in so far as they are inconsistent with fundamental rights shall to the extent of such inconsistency, be void. Article 13(3)(a) defines “law” as including any ordinance, order, bye-law, rule, regulation, notification, custom or usage having, in the territory of India the force of law. Second, Basic Structure Review: This is an innovation of a 13-judge bench of the Supreme Court in the canonical judgment of Keshavananda Bharati v. Union of India.14 Whereas Article 368 of the Constitution provides a procedural mechanism for constitutional amendment,15 Keshavananda Bharati introduces substantive constraints on the Parliament’s power. As per the basic structure doctrine, the Parliament is prohibited from amending the Constitution in such a way that it destroys the basic and essential features of the Constitution. What these basic and essential features are is purposely left vague and abstract, to be determined by the court in a case by case basis, but broadly it includes federalism, free and fair elections, secularism, separation of powers, judicial independence, personal liberty and dignity, etc.

13 See Varun Gauri, “Public Interest Litigation in India: Overreaching or Underachieving?” in World Bank Policy Research Working Paper (No. WPS 5109., Washington, DC: World Bank, 2009). 14 AIR 1973 SC 1461. 15 Procedure for amending the Constitution: Article 368 (2): “An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, 4 [it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill.”

42  Rajgopal Saikumar Both, Article 13 review and the basic structure review can be invoked in case of violation of legally entrenched human rights.

Human rights movement in India and its global coalescence in the 1970s Before discussing human rights law, I shall briefly present a recent history of the Indian human rights movement to show its coalescence with the global turn to human rights in the 1970s. The context of these civil society movements, in the region as well globally, is crucial to understanding the judiciary as an institution that, in complex ways, is always receptive to majoritarian moods.16 Samuel Moyn has argued in The Last Utopia that there is something different and new about the contemporary understanding of human rights that emerged in the 1970s compared to previous ‘rights regimes’.17 Earlier conceptions elaborated in the post Enlightenment and revolutionary eras anchored ‘rights’ as a necessary corollary to ‘citizenship’. This rights/citizenship dyad continued even after World War II with the creation of the United Nations. Moyn also shows that in the 1950s and 1960s the human rights discourse was co-opted by the anticolonial movement for self-determination which again embedded the demand for rights within a claim to citizenship thus continuing its affinity with the earlier ‘Enlightenment’ conception. But it is only in the 1970s that human rights came to be imagined as transcending the state/citizenship model by promising to protect individual dignity via international law regardless of the person’s membership in a particular political community. For Moyn, what led to the emergence of human rights as a popular movement in the 1970s was the disillusionment with emancipatory ideologies of anticolonialism and communism, and a desire for an alternative universalism: namely, the moral utopia of human rights that transcends the contaminated politics of state regimes. This conception of human rights, Moyn argues, is not even the human rights envisaged in the 1940s and codified in the UDHR, but a subsequent modification that regards its transcendent quality insofar as they should be protected across the boundaries of territorial states. This is the conception of human rights, as ‘moral utopia’, that was adopted by social movements and took roots in popular public imagination since the late 1970s.

16 Robert Dahl, for instance, has empirically shown, in the context of the US Supreme Court, that the judiciary rarely functions as a countermajoritarian institution. The Court’s views are rarely out of line with the views dominant among the lawmaking majorities, and hence, courts are inevitably part of the dominant national lawmaking alliance. See, Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law (Vol. 6; 1957) 279. 17 Samuel Moyn, The Last Utopia: Human Rights in History (Harvard University Press, 2012); on other histories of international human rights focalised on the Global South, see Steven L. B. Jensen, The Making of International Human Rights: 1960’s, Decolonisation and the Reconstruction of Global Values (Cambridge University Press, 2016). See also: Roland Burke, Decolonisation and the Evolution of International Human Rights (UPenn Press, 2010).

Constitutional politics of judicial review 43 A similar timeline appears in the Indian context but for different micro-political reasons. To understand the popular legitimacy accorded to the Indian Supreme Court’s turn to human rights discourse, one needs to take seriously the coincidence of this history with the global turn to human rights in the 1970s that Samuel Moyn also traces. Although the history of the Indian human rights movement (if defined very broadly) can be traced back to the anticolonial struggle (creation of Indian Civil Liberties Union in 1936), there is little doubt that it gained steam and contemporary form only since the 1970s.18 In the context of the rising mass discontent in the late 1960s and early 1970s, the most important event in the history of human rights in independent India is the Jayaprakash Narayan led movement demanding protection and strengthening of democratic institutions, press freedom and autonomy of constitutional bodies like the judiciary, election commission, etc.19 Threatened by such movements, Indira Gandhi declared Emergency (25 June 1975) on grounds of an apparent “internal disturbance” to national integrity. All forms of dissent were curbed, several human rights groups and associations were declared illegal, and civil liberties were suspended. It was during this period that the influential People’s Union of Civil Liberties (PUCL) was established. Following Ajay Gudavarthy, one can term this the first phase of the human rights movement in independent India.20 In March 1977 when the Janata Party came to power, most of the top leadership of PUCL became key ministers in the government, leading to its temporary abeyance until it was revived again in 1980. The newly revived PUCL increasingly focused on civil and political human rights, including issues such as prison reform, police excesses, preventive detentions laws, arbitrary arrests, electoral reforms, etc. As Ajay Gudavarthy notes, the early phase of human rights movements did not stand outside and in opposition to the state, but worked towards making the state more responsive in its obligations towards its citizens through legislative reforms and judicial interventions.21 But the Indira Gandhi government continued its centralisation of powers under the garb of welfarism, governed through experts and technocrats, suspended state governments to impose centralised rule, while becoming increasingly coercive in its use of force.22 It passed draconian laws such as the Maintenance of Internal Security Act, strengthened the Terrorist and Disruptive Activities (Prevention) Act in Punjab, Andhra Pradesh, etc., while the

18 Of historical significance in India is the Karachi Session of the Congress (1931), which adopted the resolution of fundamental rights that motivated the founding of the Indian Civil Liberties Union (ICLU) in November 1936. ICLU fought the colonial government on issues concerning the rights of political prisoners, fair trials, challenging arbitrary detention while also contributing to various journals and newspapers on related themes. 19 Jayaprakash Narayan’s call for Total Revolution in 1975 was crucial in Indira Gandhi’s call for Emergency. Ranabir Samaddar, “Jayaprakash Narayan and the Problem of Representative Democracy,” Economic and Political Weekly (Vol. 43, No. 31; 2008). 20 Ajay Gudavarthy, “Human Rights Movements in India: State, Civil Society and Beyond,” Contributions to Indian Sociology (Vol. 42, No. 1; 2008) 29–57. 21 ID at 32, 33. 22 ID at 35.

44  Rajgopal Saikumar Armed Forces (Special Powers) Act was deployed in Assam, leading to an abuse of power by police and armed forces. This led to the second phase of the human rights movement, in the mid-1980s, characterised by radical leftist ideologies and proximity with militant groups such as the armed Naxalite movement. As Gudavarthy notes: “The HRM [Human Rights Movement] was more than willing to play second fiddle to the militant democratic, or the Marxist-Leninist movements and was convinced of the urgent need to use militant ‘transformative violence’ or ‘counter violence’ against the state in order to bring about a grand structural transformation.”23 Human rights organisations were now engaging in fact-finding committees, concerned with encounter deaths, police tortures, custodial violence, etc. From a movement that was willing to co-operate with the state in the early phases, human rights movements were increasingly drifting away and in opposition to it. The third phase of the movement, prominent from the early 1990s, is characterised by its recognition of the inadequacies of the Marxist-Leninist framework exclusive focused on its anti-state positions but ignoring the fragmentation and injustices within the civil society itself. This was remedied by the intervention of Dalits, women’s groups, Adivasis and environmentalists who broadened the scope away from the erstwhile rigid ‘state’ versus ‘civil society’ framework, while reasserting socioeconomic rights as the necessary condition for exercising for civil-political rights.24 The global turn to human rights and India’s human rights movements in the 1970s are often ignored in the narratives of Supreme Court’s human rights jurisprudence. But it is crucial to not forget that it is these social movements, which crystallised into the formation of the Janata Party (1977–1979), that gave a significant impetus to the Supreme Court’s activism leading to innovations such as PILs that embedded human rights into the Constitution. In referring to legal commentators and human rights activists like Upendra Baxi, Arun Thiruvengadam critically suggests that it is their “progressive scholarship in the 1980s, which counselled judges to believe that they were all powerful and fully justified in incorporating their own understanding of the values of the Constitution into their decisions”, that encouraged the judges to be ‘activists’.25 As Balakrishnan Rajagopal notes, there are two broad reasons for why Supreme Court’s turn to human rights was considered politically acceptable in the late-1970s: First, the Court was “doubtlessly riding a human rights wave, driven by a range of social movements that were sprouting all over India in the aftermath of Emergency”; and second, the Janata Party which came to power through these social movements, was itself weak, indecisive and politically ineffective.26

23 ID 37–38. 24 ID at 46. 25 Arun Thiruvengadam, “Swallowing a Bitter PIL,” in (eds.) Mayur Suresh and Siddharth Narrain (eds.), The Shifting Scales of Justice: The Supreme Court in Neoliberal India (Orient BlackSwan; 2014) 129. 26 Balakrishnan Rajagopal, “Pro-Human Rights But Anti-poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective,” Human Rights Review (Vol. 8, No.3; 2007).

Constitutional politics of judicial review 45

A study in constitutional politics An analysis of judicial review has to necessarily be a study in constitutional politics accounting for the negotiations of the ‘juridical’ and the ‘political’. On one hand it can be argued that although a popular government has its place in the scheme of constitutional values, the deeper commitment has to be towards fundamental rights (‘rights foundationalists’). On the other hand are those who argue that law-making authority is granted solely to the winner of general elections and that any institutional check on electoral victors is presumptively antidemocratic (‘parliamentary sovereignty’).27 Thus follows Alexander Bickel’s objection to judicial review, the ‘countermajoritarian difficulty’: how can an oligarchy of unelected judges overturn decisions of a democratically elected legislature?28 A study of judicial review has to be a study in constitutional politics because it has to negotiate the pull of constitutionalism as well as the democratic mandate, the Supreme Court and the Parliament. The function of judicial review is to hyphenate a ‘constitutional democracy’, which Habermas calls the ‘paradoxical-union of contradictory principles’.29 Therefore, a formalist study divorced from political and historical contexts is inadequate. Attention has to be paid not just to the evolution of precedents but to politics and agendas underlying the cases.30 The story of human rights law in India has to be such a story of constitutional politics.

Indian Supreme Court in the first phase of judicial review In the context of such constitutional politics, judicial review has gone through several shifts and variations, expansions and contractions since 1950: (1) judicial review during the Nehruvian Congress era of parliamentary sovereignty; (2) the era of Basic Structure Review inaugurated by Keshavananda Bharati (1973) where the Supreme Court takes back constituent power as the final arbiter of the Constitution; (3) judicial review during Indira Gandhi’s proclamation of Emergency and the Supreme Court’s failure to recognise human rights; (4) postemergency PILs, judicial populism and prominence of human rights discourse; and (5) the Supreme Court ‘conservative turn’ towards neoliberalism.

27 Bruce Ackerman, “Constitutional Politics/Constitutional Law,” in Yale Law Journal (Vol. 99, No. 3; 1989) 453–547. 28 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 2nd ed., 1986). 29 Jurgen Habermas, “Constitutional Democracy: A Paradoxical Union of Contradictory Principles?” Political Theory (2001) 766–781; The element of ‘paradox’ is that constitutionalism is meant to offer checks and limits on the threats posed by majoritarian rule; while democracy in turn finds constitutionalism an illegitimate constraint on popular will. The element of ‘union’ in a constitutional democracy is that constitutionalism is meant to create and maintain the conditions necessary for effective democratic participation of the people. 30 See Sujit Choudhary, “How to do Constitutional Law and Politics in South Asia,” in (eds.) Madhav Khosla and Mark Tushnet, Unstable Constitutionalism: Law and Politics in South Asia (Cambridge University Press, 2015).

46  Rajgopal Saikumar The struggle of judicial review, between the judiciary’s rights-foundationalism and the elected government’s claim to parliamentary sovereignty, has ever since India’s Independence been acute and at the forefront of debates. The First Amendment to the Constitution, initiated by Jawaharlal Nehru, was to institute a ‘saving clause’ (Ninth Schedule) containing items that would be excluded from judicial review even if it violated fundamental rights. During the first two decades (about 1950–1967) of the Supreme Court’s existence, the court struck down 128 pieces of legislation, and of the Parliament’s first 45 constitutional amendments, about half were aimed at curbing judicial power.31 This phase of the Supreme Court is predominantly characterised as a ‘positivist’32 and its interpretive approach as predominantly ‘interpretivist’, while from the second phase onwards the Court becomes predominantly noninterpretivist.33 The interpretivist modality is characterised by a strict adherence to the text, construing the words literally and in their ‘plain meaning’.34 Such textualism is in stark contrast with the second phase of judicial review (from the 1970s) characterised by a structuralist mode of interpretation where the various provisions of the Constitution are read not in isolation but as structurally interlinked in such a way that they give content and meaning to each other in light of the grand scheme and vision of the Constitution. While the Court was interpretivist, it was the era of the Nehruvian ‘Congress System’ in the Parliament.35 The Congress system lasted from the first general election (1951) to the fourth (1967). Characterised by a monopolistic single party domination and a massive democratic mandate, the government promised to carry out a radical socialist transformation of the Indian people. But the relationship between the central government and the Supreme Court was often conflicted and frustrating. For instance, while the government enacted laws that curbed the speech of ‘communist’ and Hindu right-wing groups, the Supreme Court through a strict interpretivist reading of the Constitution struck down

31 Pratap Bhanu Mehta, “The Rise in Judicial Sovereignty,” Journal of Democracy (Vol. 18, No. 2; 2007) at 74. 32 S. P. Sathe, Judicial Activism in India (New Delhi: Oxford University Press, 2002); “Judicial Activism: The Indian Experience,” Washington University Journal of Law & Policy (Vol. 6; 2001) 29. 33 Following John Hart Ely, interpretivists are those who believe that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution, while noninterpretivists believe, to the contrary, that “courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document.” John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980); See Generally; Chintan Chandrachud, “Constitutional Interpretation,” in (eds.) Sujit Choudhary and Ors, The Oxford Handbook of The Indian Constitution (Oxford University Press, 2016) 73–93. 34 Robert C. Post, “Theories of Constitutional Interpretation,” Representations (Vol. 30; 1990) 14. 35 See, Rajani Kothari, “The Congress System in India,” Asian Survey (Vol. 4, No. 12; 1964) 1161–1173; Sanjay Ruparelia, Divided We Govern: Coalition Politics in Modern India (New York: Oxford University Press, 2015) 45–67.

Constitutional politics of judicial review 47 these laws as ultra vires and unconstitutional.36 Alarmed by the danger these judgments posed to ‘national security’, the government amended the Constitution by expanding the ambit of the restrictions that could be imposed on the free speech of its citizens.37 In another instance where the Madras state provided for reservation of seats for lower caste persons in education institutions, the Supreme Court invalidated the law for violating Article 14 (equality clause), which the Congress then overcame by a constitutional amendment that allowed for affirmative action. Therefore, the pattern of judicial review in this period is characterised by such back-and-forth between the government and the court, where one invalidates the law while the other overturns the invalidation by again amending the law. In order to bring about socio-economic transformations, the Congress government legislated for acquisition of land from Zamindars and distribute them to landless labourers. When the Court invalidated them for being violative of the right to property, the government immediately passed constitutional amendments by putting in place a ‘saving clause’ that excluded land-distribution policies from review.38 Such amendments raised difficult questions: can the legislature immunise certain laws from judicial review? Can constitutional amendments that modified fundamental rights be placed beyond judicial review? Sajjan Singh (1965) and Sankari Prasad (1952) conceded to the Parliament unfettered powers to amend and modify any part of the Constitution.39 But after Mr Nehru’s death, in 1964, the finality that these judgments had set out was once again disturbed by an 11-judge bench in Golak Nath v. State of Punjab, where the court once again put in place limits on the Parliament’s power to amend the Constitution.40 It interpreted the definition of ‘laws’ in Article in 13(2) as including constitutional amendments and hence, a constitutional amendment that violated the fundamental rights would be void. During this period the Court also struck down the Congress government’s move to nationalise banks,41 as well as a law that abolished the privy purses and privileges to the so-called princes. When Indira Gandhi consolidated her power as the Prime Minister through a major electoral victory, she immediately moved amendments (24th and 25th Amendment) to marginalise the power of courts. In July 1971, Mr Gokhale (Minister of Law in Indira Gandhi’s government) tabled the 24th Constitutional Amendment to overturn Golak Nath and once again assert parliamentary supremacy and its unfettered power to amend the Constitution. Amidst sharp criticisms of the

36 Romesh Thapar v. State of Madras, AIR 1950 SC 124; Brij Bhushan v. State of Bihar, AIR 1950 SC 129. 37 Glanville Austin, Working a Democratic Constitution: The Indian Experience (New Delhi: Oxford University Press, 1999); Lawrence Liang, “Reasonable Restrictions and Unreasonable Speech,” Sarai Reader (Vol. 4; 2004) 434–439. 38 State of Bihar v. Sir Kameshwar Singh (1952) 1 SCR 889. 39 (1952) 1 SCR 89; and AIR 1965 SC 845. 40 AIR 1963 SC 1643. 41 AIR 1970 SC 564.

48  Rajgopal Saikumar Courts for being ‘elitist’ in supporting propertied classes and preventing socialist measures such as nationalisation of banks, the 24th amendment was passed in the Lok Sabha by a vote of 384 to 23 and in Rajya Sabha by a vote of 177 to 8. The challenge to the 24th Amendment was heard before a 13-judge bench in the canonical Keshavananda Bharati v. State of Kerala (1973) that propounded a new form of judicial review, the Basic Structure Review.42 Striking down Golak Nath, the Court held that although the Parliament’s power to amend the Constitution under Article 368 was unlimited, such an amending power cannot result in the virtual creation of a new constituent assembly itself (Justice Shelat). An amendment to the constitution therefore cannot destroy the constitution, and hence its basic structure cannot be abrogated at any cost. Deferring to comment on what are the exact set of features that form the basic structure of the Constitution, the Court vaguely noted that these include, but not limited to, supremacy of the Constitution, republican and democratic form of government, secularism, separation of powers, dignity and freedom of the individual, etc. Keshavananda Bharati marks the shift towards the noninterpretivist phase of the Supreme Court. And as several commentators have suggested, the creation of the basic structure judicial review also marks the subversion of parliamentary sovereignty by constitutionalism, and judicial supremacy trumping separation of powers.43 Regardless, to the extent that some human rights are recognised as part of the basic structure of the Constitution, Keshavananda signals a major victory for human rights jurisprudence.

The noninterpretivist second phase of judicial review If the Nehru era of Congress fought for a stronger parliamentary sovereignty to implement its visions of social transformation, the Indira Gandhi era of Congress insisted on strengthening parliamentary sovereignty to immunise the government from accountability and corruption charges, and to legitimise its authoritarian measures of curbing dissent. When the Allahabad High Court convicted Indira Gandhi for corrupt electoral practices, she responded by declaring an internal Emergency (25 June 1975) that led to the suspension of human rights, press censorship and prohibition of dissent and immunised her elections from judicial scrutiny. On judicial review, these amendments were invalidated by a fivejudge Bench in Indira Gandhi v. Raj Narain.44 This judgment is characteristic of the second phase of judicial review for two reasons: (1) it is the first case to invoke the basic structure review to invalidate a law; (2) the reasoning of the Court was structuralist, wherein various provisions of the Constitution are read

42 AIR 1973 SC 1461. 43 Raju Ramachandran, “The Supreme Court and the Basic Structure Doctrine,” in (eds.) B. N. Kirpal and Ors, Supreme But Not Infallible (New Delhi: Oxford University Press, 2009); Ashok Desai, “The Basic Structure and Constitutional Amendment,” in (ed.) Venkat Iyer, Liberty and the Rule of Law (New Delhi: Butterworth, 2000). 44 AIR 1975 SC 2299.

Constitutional politics of judicial review 49 not in isolation but as interlinked in such a way that they give content and meaning to each other. And the judgment hints at a strategic political consciousness of the Supreme Court which becomes much more pronounced by the end of the decade. Susanne and Lloyd Rudolph’s article on this issue has this crucial insight: the Supreme Court up to Golak Nath was characterised by its political innocence, but from the 1970s onwards, the Court starts to strategically respond to electoral changes and political currents.45 Most infamously, the Supreme Court remained silent in the face of authoritarianism during the Emergency. In A.D.M. Jabalpur v. Shivkant Shukla46 a Presidential Order under Article 359 that suspended the right to move the Court for violation of fundamental rights was challenged, the Supreme Court by 4:1 majority upheld the order, in effect making legislations and executive action immune from review. The court’s rationale, in stark contrast to an idea of human rights, was that the right to life and personal liberty were granted to citizens by the state and therefore could be suspended by the state. During this period judicial appointments were manipulated by partisan politics, conventions of seniority were disregarded and Justice Khanna, who was to be elevated as Chief Justice, was superseded by Justice Ray. Justice Ray later attempted to reconvene a 13-judge bench to reconsider Keshavananda Bharati. Given his proximity to the ruling dispensation his intention was cast in suspicious light, while the other judges also expressed their reluctance to overturn Keshavananda. The hearing was abruptly called off.47 The Supreme Court continued responding to the priorities of the establishment even when the Janata Party came to power for instance when, in its advisory opinion, the Supreme Court upheld the government’s decision in 1977 to dissolve nine Congress-led state governments, dealing a blow to the federal system. It is often argued that in an attempt to reclaim its lost stature as the guardian of the Constitution, the Supreme Court from the late 1970s underwent a great transformation. This transformation can be read as opportunism and/or an attempt at genuine reform. Regardless, what is important is that the judiciary’s attempt at reform soon morphed into an expansion of power. The Court was seen as legitimate alternative to representative institutions, perceived as corrupt, incapable, self-serving and ultimately weak. Judicial overreach was tolerated as a response to the ineffectiveness of majoritarian rule and its intervention even at the cost of injuring separation of powers was seen as necessary. Politically, the 1990s is often characterised as a tumultuous period of proliferating parties and fragmented politics. By the late 1980s the Congress epoch of single-party dominance was ending, and replaced by a phase of coalition

45 Susan Rudolph and Lloyd Rudolph, “Judicial Review Versus Parliamentary Sovereignty: The Struggle Over Stateness in India,” in Explaining Indian Democracy: A Fifty Year Perspective, 1956–2006 (Vol. 2; New Delhi: Oxford University Press, 2008) 183–211. 46 AIR 1976 S.C. 1207. 47 Susan Rudolph and Lloyd Rudolph, “Judicial Review Versus Parliamentary Sovereignty: The Struggle over Stateness in India,” in Explaining Indian Democracy: A Fifty Year Perspective, 1956–2006 (Vol. 2; New Delhi: Oxford University Press, 2008) 183–211.

50  Rajgopal Saikumar governments with several regional parties gaining dominance and dictating terms in national politics often leading to a decisional paralysis. The number of State Parties increased from 19 in 1980 to 40 in 1999, while the number of Registered Parties increased from 11 (1980) to 122 (1999).48 The Centre was characterised by a political vacuum, decision-making was slow and ineffective, the economy was crumbling and it was under such conditions that the judiciary became a significant player in this newly emerging institutional politics that was scrambling for populist legitimacy. Symbolically, and in stark contrast to most constitutional democracies in the world, the Supreme Court by the early 1990s arrogated to itself the power to appoint its own judges, with minimal interference from the executive and legislature.49

Human rights via public interest litigation To legitimise judicial supremacy vis-à-vis other organs of the government, the Supreme Court in the 1980s brazenly embraced judicial activism by riding the wave of human rights movements in different parts of the country, signalling a populism in its rhetoric. Sharply deviating from the framers of the Constitution, the Court evolved new rights, including human rights, and devised innovative procedures to enforce them. In the early phases of its human rights discourse, the Supreme Court banned custodial violence,50 handcuffing51 and solitary confinements,52 upheld positive rights such as legal aid53 and right to speedy trial.54 Through judicial innovations like Public Interest Litigation the Courts refashioned public law litigation so as to ensure access to justice for the poor, disempowered and the marginalised. Doing away with its earlier ‘elitist’ avatar, it reengineered Locus Standi making standing more flexible and democratic. The courts took suo motu notice of public events and even allowed for an epistolary jurisdiction. If Samuel Moyn suggested that the distinctiveness of the human rights that emerged in 1970s was in its transcending the earlier ‘citizenship/rights’ framework, then the Indian Supreme Court’s turn to human rights also inaugurates a transcending of formalistic procedural requirements of conventional legal trials. Like the global turn to human rights as a ‘moral utopia’ was fuelled by

48 Douglas V. Verney, “How Has the Proliferation of Parties Affected the Indian Federation? A Comparative Approach,” in (eds.) Zoya Hasan, E. Sridharan, and Ors, India’s Living Constitution: Ideas, Practices, Controversies (New Delhi: Permanent Black, 4th impression, 2013) 134–158. 49 A.I.R. 1999 SC 1. 50 Sheela Barse v. State of Maharashtra AIR 1983 SC 378. 51 Charles Sobhraj v. Supt. Central Jail AIR 1978 SC 1514. 52 Sunit Batra v. Delhi Administration AIR 1980 SC 1579. 53 M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548. 54 Hussainara Khatoon v. Home Secy., State of Bihar AIR 1979 SC 1369.

Constitutional politics of judicial review 51 disillusionment with existing emancipatory ideologies (communism, Marxism, failed decolonisation, etc.), the Supreme Court’s embrace of human rights through reform also carried this rhetoric of a break from the past. One such story of the birth of PILs, as narrated by Clark Cunningham, goes back to Hussainara Khatoon v. Home Secretary, State of Bihar (1979), also known as the ‘undertrials case’.55 On 8 and 9 January 1979, the newspaper Indian Express published articles on the oppressive condition of prisoners. Several of these prisoners were awaiting trial but had already served time longer than those if they had been charged, tried and convicted with maximum punishment. Two lawyers, Kapila and Nirmal Hingorani, shocked by the news, decided to file a Habeas Corpus petition in the Supreme Court. Normally, a habeas corpus can be filed only with a supporting Power of Attorney or an affidavit from the victim. But the lawyers, believing that too much time had already passed in bureaucratic delays, decided to approach the court without standing and carrying only the article as evidence. As Cunningham notes, to make the anomalous nature of the case even clearer, Ms Hingorani filed the petition as a public spirited citizen rather than a lawyer representing client, appearing in court without the official robe of an advocate. The petition was heard by a three-judge bench consisting of justices P. N. Bhagwati, R. S. Pathak, and A. D. Khoshal. The Court widely interpreted Article 21 as including the right to speedy and fair trial and passed a bold order releasing all the prisoners referred to in the report on a non-monetary personal bond. Hussainara Khatoon in this sense is an exemplar of PILs, marking a major departure from the earlier more positivist conceptions of justice. In the earlier phases of judicial review, for instance in Charanjit Lal v. Union of India56 (1951), the Supreme Court held that no one except those whose rights were directly affected by a law could challenge its constitutionality. But three decades later, in cases such as Fertilizer Corporation57 (1981) the Court allowed factory workers to challenge the sale of a business on grounds that it infringed their fundamental right to practice any occupation, trade or business (Article 19(1)(g)). Justice Krishna Iyer voiced the need for liberalising standing not on purely statutory grounds, but rather, as a way of meeting the needs of the ‘people’. This newly evolved principle of standing was concretized in S.P. Gupta v. Union of India (1982), marking the overthrow of traditional rules of standing that made judicial redress available only to those who suffered a violation of a legal rights. The consequence of democratising standing soon opened the doors of the court to bonded labourers,58 pave-

55 Clark Cunningham, “The World’s Most Powerful Court: Finding the Roots of India’s Public Interest Litigation Revolution in the Hussainara Khatoon Prisoners Case,” in (eds.) S. P. Sathe and Sathya Narayan, Liberty, Equality and Justice: Struggles For A New Social Order (Lucknow: EBC Publishing; ed., 2003) 83. 56 AIR 1951 SC 41. 57 AIR 1981 SC 344. 58 Bandhua Mukti Morcha v. Union of India; AIR 1984 SC 802.

52  Rajgopal Saikumar ment dwellers,59 inter-country adoption,60 and in Sunil Batra61 where the Court even accepted letters from public-spirited citizens as writ petitions. Craig and Deshpande’s seminal paper Rights, Autonomy and Process (1989)62 chalked out the three main innovations of PIL: First, liberalising access to courts by reconceptualising standing in such a way that any member of the public, acting in bona fide, representing persons who are unable to approach the court due to poverty, disability and other such social exclusions, could move the Court under Article 32. Second, a relaxation and modification of the normal adversarial principles so as to make the procedure more collaborative and participatory when circumstances necessitated this. Third was a substantive innovation of broadening the interpretation of fundamental rights so as to include human rights within its scope. For instance, although Article 21 when literally read only protects life and personal liberty, in Bandhua Mukti Morcha63 a case concerning the rights of bonded labourers, Justice Bhagwati expanded it to include protection of human dignity and interpreted dignity in such a way that it gets its meaning and content from the non-justiciable socio-economic rights enshrined in Directive Principles of State Policy.64 If Maneka Gandhi, through its structuralist jurisprudence, linked Article 14, 19 and 21 as a co-dependent and co-constitutive trinity of rights, then Justice Bhagwati, in S.P. Gupta,65 Bandhua Mukti Morcha, Olga Tellis,66 etc., interpreted these provisions in light of Directive Principles and the Preamble of the Constitution. In Francis Coralie, J. Bhagwati notes that “we think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as, adequate nutrition, clothing and shelter over the head and facilities, for reading, writing and expressing oneself in diverse forms, freely moving about and missing and coming along with fellow human beings.”67 While in P. Rathinam, the Supreme Court says “the right to live with human dignity . . . takes within its fold some of the fine graces of civilization which makes life worth living and that the expanded concept

59 60 61 62 63 64

65 66 67

Olga Tellis v. Bombay Municipality; AIR 1985 SC 180. (1984) 2 SCC 244. (1980) 3 SCC 488. Craig and Deshpande, “Rights, Autonomy and Process: Public Interest Litigation in India,” Oxford Journal of Legal Studies (Vol. 9, No. 3; 1989) 356–373. AIR 1984 SC 802. Upendra Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” in (eds.) Rajeev Dhavan and Ors, Judges and the Judicial Power: Essays in Honour of Justice V. R. Krishna Iyer (Bombay: N.M. Tripathi, 1985) 289; S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (2nd ed., Oxford: Oxford University Press, 2002); P. N. Bhagwati, “Judicial Activism and Public Interest Litigation,” Columbia Journal of Transnational Law (Vol. 23, No. 561; 1985); Arun Thiruvengadam, “Swallowing a Bitter PIL,” in (eds.) Mayur Suresh and Siddharth Narrain, The Shifting Scales of Justice: The Supreme Court in Neoliberal India (Orient BlackSwan, 2014) 120–138. AIR 1982 SC 149. AIR 1985 SC 180. Francis Coralie v. U.T. of Delhi (1981) 1 SCC 608.

Constitutional politics of judicial review 53 of life could meant the tradition, culture and heritage of the person concerned.”68 As per such rationale, notions of autonomy and liberal freedoms make sense only when socio-economic guarantees of food, shelter and health are met. So the activist judiciary expanded Article 21 of the Constitution to include the right to livelihood,69 education,70 health and medical care of workers,71 and the right to enjoy a pollution free environment.72 The Supreme Court dealt with the ‘competence problem’ (see the previous section on The problem of inferring human rights) through innovations in litigation procedures that are characteristically non-formalist, with a collaborative approach that include various parties and stakeholders, experts, amicus curiae, fact-finding committees, monitoring mechanisms. An example of this is the ‘right to food’ litigation in People’s Union for Civil Liberties v. Union of India & Ors.73 In this is case, PUCL challenged the government’s grain distribution policy on ground of it violating the fundamental right to be free from hunger.74 The Supreme Court agreed with the petitioners and expanded Article 21 to include the ‘right to food’. It maintained jurisdiction over the case and began issuing a series of expansive and specific interim orders. In effect the court was creating a national grain policy, and programs for grain distribution to the poor, implementing complex food-to-work programs and school-lunch programs for children. The Court established a Commission in 2002 to monitor compliance and implementation of its orders, and the commission appointed advisors in each state that collected information from governments, influenced the design of interim orders, and mediated policy changes with the government.75 This is an exemplary case in which the Supreme Court not just created a fundamental right to food, but also instituted mechanisms of ‘command and control’ to monitor its implementation. As David Landau suggests, this is an instance not of reform of existing policies but a case of judicial review that led to creation of new public policies, a case of ‘institutional construction’.76 But these innovations undoubtedly meant a subversion of separation of powers, an outright interference in the workings of the

68 P. Rathinam v. Union of India (1994) 3 SCC 394. 69 Olga Tellis, 1985 3(SCC) 545. 70 Mohini Jain v. State of Karnataka (1992) 3 SCC 666; Unni Krishnan v. State of A.P. (1993) 1 SCC 645 (both these cases preceded the 86th Constitutional Amendment that inserted the fundamental right to education in Article 21A of the Constitution. 71 Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42. 72 M.C. Mehta v. Union of India, (1992) 3 SCC 256. 73 W.P. (Civil) No. 196 of 2001 (May 8, 2002). 74 As per PUCL, the government stored and exported huge amounts of grain annually, rather than distribute it even in times of famine. www.righttofoodcampaign.in/ legal-action/-right-to-food-case. 75 www.righttofoodcampaign.in/legal-action/-right-to-food-case; David Landau, “The Reality of Social Rights Enforcement,” Harvard International Law Journal (Vol. 53, No. 1; 2012) 448–449. 76 David Landau, “The Reality of Social Rights Enforcement,” Harvard International Law Journal (Vol. 53, No. 1; 2012) 448–449.

54  Rajgopal Saikumar executive and the legislature. Such instances of judicial overreach have become common since the 1980s. In Laxmi Kant Pandey77 the Court created guidelines for regulating intercountry adoptions, while in Vishaka,78 the Court laid down guidelines defining sexual harassment in the workplace, along with procedures for investigation and redress. Both of these cases are instances of judicial orders that are essentially legislative in nature.

Judicial populism If an oligarchy of unelected judges gain supremacy over constitutional politics, they need to find ways of legitimising this power. The Indian Supreme Court dealt with this ‘counter-majoritarian difficulty’ by infusing its human rights discourse with judicial populism, deploying a peculiar demos-centred jurisprudence. The references to the words ‘the people in constitutional decisions in the period between 1977 and 1979 was more than its usage in the prior 27 years of its existence.79 By the mid-1970s, Justices Krishna Iyer and Bhagwati (chief architects of PIL) had articulated a desire for a ‘people’s court’ through a legal reform driven by indigenous forms of justice mechanisms that celebrated local and informal responsiveness in ways that would not be alienating, bureaucratic and elitist.80 As Anuj Bhuwania notes, these judges perceived the adversarial legal procedure as a colonial legacy that hindered access to justice, and instead, attempted to devise procedures that were to be informal and bottom-up.81 Therefore, its jurisprudence of reading socio-economic rights and human rights into fundamental rights was conceptualised as a postcolonial move.82 By the 1980s, such legal reform meant a downgrading of ‘legalism’ and ‘restraintivism’, replaced by ‘pragmatism’ and ‘activism’.83 In embracing majoritarianism as a way of dealing with the legitimacy problem of judicial review, the Court bid adieu to jurisprudence (determination based on principles, standards, doctrines of law) and instead, opted for a demosprudence.84 Demosprudence, as Baxi notes, “is not precedent-minded but regards the doing of justice or mitigation of injustice as its prime task.”85 Demosprudence

77 (1984) 2 SCC 244 (1997). 78 6 SCC 241. 79 Anuj Bhuwania, “Courting the People: The Rise of Public Interest Litigation in PostEmergency India,” Comparative Studies of South Asia, Africa and Middle East (Vol. 34, No. 2; 2014) 322. 80 ID at 323. 81 ID. 82 Upendra Baxi, The Indian Supreme Court and Politics (Lucknow: EBC, 1980); Also See, Upendra Baxi, “The Rule of Law in India,” Sur. (Vol. 3; 2007). 83 Upendra Baxi, “The Judiciary as a Resource for Indian Democracy,” Indian Seminar (No. 615; 2010) www.india-seminar.com/2010/615/615_upendra_baxi.htm. 84 Upendra Baxi, “Law, Politics, and Constitutional Hegemony: The Supreme Court, Jurisprudence and Demosprudence,” in (eds.) Sujit Choudhry and Ors, Oxford Handbook of Indian Constitution (Oxford University Press, 2016). 85 ID.

Constitutional politics of judicial review 55 describes legal practices that inform and are informed by ‘democracy-enhancing jurisprudence’ responding to ‘wisdom of the people’.86 The crucial point here is that the Supreme Court’s human rights discourse must be understood less as a jurisprudence than as its demosprudence. Such judicial populism led to a peculiar style of constitutional interpretation that can be characterised by a move from the ‘text’ (first phase) to the ‘context’ (third phase); from interpretivism to an intra-textualism which is highly result-oriented and pragmatic. Pratap Bhanu Mehta calls this style a ‘modus vivendi’, wherein, instead of focusing on doctrinal consistency and articulation of high constitutional principles, the judges act by anticipating the effects of particular decisions on the Court’s popular authority, through a delicate process of balancing competing values and political aspirations. He gives various examples for this across the decades, but suggests that it gets especially widespread from the 1980s. For instance, the Mandal decisions on affirmative action for Other Backward Classes is an instance of such a ‘balancing of pressures’ from the various interest groups while the Court’s conception of secularism itself being a kind of modus vivendi mediating demands. Therefore, the court’s human rights discourse found its form and content in such demosprudence and its modus vivendi; and all these three elements, together, are part of the Court’s effort to legitimise its institutional supremacy and the counter-majoritarian difficulty that expansive powers of judicial review puts the institution in.

An inconsistent human rights law The sort of human rights law that emerges in such a context is weak and ineffective because of the Court’s erratic reliance on precedents, its doctrinal incoherence, and an approach that is wayward, reconciling and mediating shifting pressures and interest groups. Consider the inconsistencies in interpreting ‘due process’, a legal principle important for effective guarantee of human rights. Although the framers of the Constitution explicitly avoided ‘due process’ in wording Article 21, there is currently two parallel and contradictory positions that apply or reject ‘substantive due process’ as a test of judicial review. On one hand, Selvi v. State of Karnataka,87 reviewing the constitutionality of narcoanalysis in criminal investigation, states that “The standard of ‘substantive due process’ is of course the threshold for examining the validity of all categories of government action that tend to infringe upon the ideal of personal liberty.” On the other hand, consider Rajbala v. State of Haryana88 reviewing the constitutionality of a law that prescribed educational and financial conditions for

86 Upendra Baxi, “Demosprudence Versus Jurisprudence the Indian Judicial Experience in the Context of Comparative Constitutional Studies,” Macquarie Law Journal (Vol. 14; 2010) 8. 87 AIR 2010 SC 1974. 88 W.P. 671 of 2015, http://supremecourtofindia.nic.in/FileServer/2015-12-10_1449739 272.pdf.

56  Rajgopal Saikumar disqualification from contesting in panchayat elections, where the Court categorically states “substantive due process, which seeks to set up the courts as arbiters of legislative wisdom, cannot be a ground to review a statute.” A drawback of a human rights discourse dominated by a judiciary, vis-à-vis the legislature and executive, is that the Court’s formal declarations rarely translate into tangible results. Philippe Cullet’s work on water laws shows how the Court time and again upholds the human right to water, linking it to Article 21, and imposing a corresponding duty upon the state. Yet this assertion has rarely travelled beyond the context of the particular case it decides. For instance, M. C. Mehta v. Kamal Nath held that the principle of public trust applies in India to all surface waters.89 Yet this has had no impact in practice, neither has any state amended legislations that recognise this principle.90 In fact, as Cullet shows, the Court in other occasions has given conflicting decisions that affirm the state as the sovereign dominant owner of water.91 This is a problem not just with the right to water, but other similar guarantees of socio-economic necessities like food, shelter and education. The Court makes broad pronouncements but does not concern itself with the details. Neither does the legislature or the executive take much notice of these decisions: “The result is that the legal framework today conceptually includes progressive developments like the formal recognition of the human right to water but little has been done to translate this into the actual instruments that make a difference to people’s lives.”92 On matters such as political corruption, election malpractice, social rights, etc., the Supreme Court has favoured wide and expansive interpretation of fundamental rights. But on matters concerning civil liberties, especially in emergency laws deployed in ‘disturbed areas’, such as the Armed Forces Special Powers Act, Unlawful Activities Prevention Act, National Security Act, etc., the Supreme Court has consistently upheld their constitutionality, validating curtailment of rights, citing the rationale of exceptionalism required for ‘security and integrity’ of the state and maintenance of law and order.93 Several legal commentators also discern a ‘conservative turn’ in the Supreme Court, since the 1990s.94 Whereas the original constituency of PILs in the 1980s was its focus on human rights of the dispossessed and disenfranchised, by the 1990s, it is argued that there is a perceptible shift towards issues of governance,

89 Philippe Cullet, “A Meandering Jurisprudence of the Court: The Evolving Case Law Related to Water,” in (eds.) Mayur Suresh and Siddharth Narrain, The Shifting Scales of Justice: The Supreme Court in Neoliberal India (Orient BlackSwan, 2014) 129. 90 ID at 143. 91 ID at 155. 92 ID at 144. 93 Kartar Singh v. State of Punjab (1994) 3 SCC 569 (on the constitutional validity of TADA), On the constitutionality of AFSPA, See, Naga People’s Movement of Human Rights v. Union of India (1998) 2 SCC 109. 94 See the essays in Mayur Suresh and Siddharth Narrain (eds.), The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India (Hyderabad: Orient BlackSwan, 2014).

Constitutional politics of judicial review 57 political corruption, urban traffic, slum clearance, pollution in cities, cleaning up the Taj Mahal and Ganges, etc. In cases such as Narmada Bachao Andolan,95 Almitra Patel,96 N.D. Dayal 97 and Tata Housing Development Company,98 all of which are cases involving displacement of thousands of people, were ultimately validated and sanctioned by the Supreme Court. Losing sight of the original constitutional justification of its human rights discourse, PILs in the 1990s became a secondary arena of politics for the already enfranchised and the powerful to ventilate grievances and projects which have failed to secure the assent of the democratic wings of government.99

Conclusion This chapter has tried to look at human rights law from the lenses of judicial review in India. Judicial review offers a heuristic to direct our attention to the constitutional politics that underlie the juridical life of this human rights discourse. Granville Austin has suggested that the Indian Constitution, as envisaged by its framers, was imagined to be a seamless web of three inseparable strands: national unity, democracy and social revolution.100 Jawaharlal Nehru led Congress had promised the people of India a social revolution. But when constitutional principles, as interpreted by the Supreme Court, stood in the way of his ideals, he attempted to dilute them. In 1954, the Congress party set up a Working Committee to look into necessary reform but when the committee report revealed too strong an anti-judiciary sentiment, Nehru intervened and substituted it with his own recommendations for amendments to the Constitution.101 Indira Gandhi led Congress government’s popularity was also high in the 1970s but eventually declined. At the height of her centralisation of powers during the Emergency, the government passed the 42nd Amendment which, as Austin notes, “so marginalized the judiciary that the three branches of government were effectively reduced to two.”102 By the 1970s there was a global turn towards human rights, and a raging human rights movement was spreading all over India. It is in this context that the human rights discourse was taken up by the Indian Supreme Court. Its human rights discourse is inseparable from the dynamics of separation of powers that led to the Supreme Court’s institutional supremacy over the

 95  96  97  98  99

(2000) 10 SCC 664. (2000) 2 SCC 166. (2003) 7 SCALE 54. (2003) 7 SCC 589. Sudhir Krishnaswamy and Rajgopal Saikumar, “Restoring Legitimacy to PILs,” The Hindu (3 May 2014) www.thehindu.com/opinion/lead/restoring-legitimacy-to-pils/article597 0631.ece. 100 Granville Austin, “The Expected and the Unintended in Working a Democratic Constitution,” in (eds.) Zoya Hasan, E. Sridharan, and Ors., India’s Living Constitution: Ideas, Practices, Controversies (New Delhi: Permanent Black, 4th impression, 2013) 319. 101 ID at 338. 102 ID at 331.

58  Rajgopal Saikumar legislature and executive. Therefore its human rights jurisprudence is fused with its judicial populism and demosprudence. All these three elements, together, is part of the Court’s effort to legitimise its institutional supremacy and the counter-majoritarian difficulty that societies with such strong judicial review have to inevitably deal with. Yet, the Supreme Court has failed to transform its pronouncements into tangible results. Mired in mediating shifting political interests, the Court continues to be erratic and inconsistent, at the cost of sound constitutional principles. However, it is not just the articulation of constitutional principles that is wanting but also a more deeper and democratically entrenched human rights, adequately legislated for and implemented by the executive, immune to the whims of dominant interest groups.

3 Securing rights, protecting the nation? National security and the Indian Supreme Court Surabhi Chopra Introduction National security matters are fraught terrain for the judiciary. In democracies where courts hold constitutional review powers, judges are supposed to hold governments to the high constitutional principles that might otherwise be neglected. In the national security arena, this counter-majoritarian role is delicate but crucial. On the one hand, security threats might genuinely warrant heightened coercion and secrecy by governments. On the other hand, the potential for abuse under these conditions is especially high, and public concern about injustice to terror suspects particularly low. This chapter examines how the Supreme Court of India has navigated this dilemma. I focus primarily on two cases where the Supreme Court reviewed security policies pursued by central and state governments. The first of these cases, Nandini Sundar versus State of Chhattisgarh1 (“Sundar”) involved grave, indiscriminate violence by police in response to radical-left insurgency in the central Indian state of Chhattisgarh. The second case, Extra Judicial Execution Victim Families Association versus Union of India2 (“EEVFAM”), involves extra-judicial killings by the armed forces and police in the north-eastern state of Manipur. Both these cases fall within India’s well-established tradition of “public interest litigation”: they allege grave, widespread failures of governance and were initiated by concerned citizens rather than direct victims of the harms alleged.3 Public interest litigation can entail repeated court hearings and elicits multiple interim orders – sometimes described as “continuing mandamus” – rather than a single, dispositive judgment. I analyse two particularly significant orders, one each from Sundar and EEVFAM. The order in Sundar4 evaluates the use of amateur,

1 Nandini Sundar versus State of Chhattisgarh, Supreme Court of India, WP (Civil) No. 250/07. 2 Extra Judicial Execution Victim Families Association versus Union of India, WP (Civil) No. 250/07. 3 S.P. Gupta v President of India, (1982) AIR SC 149, para 22. See also Christine M. Forster and Vedna Jivan. ‘Public Interest Litigation and Human Rights Implementation: The Indian and Australian Experience’ [2008] 3(1) Asian Journal of Comparative Law, 14. 4 Supreme Court of India, Order in WP (Civil) No. 250/07, July 5, 2011.

60  Surabhi Chopra “auxiliary police” cadres against radical-left groups in Chhattisgarh. The order in EEVFAM 5 responds to a petition asking that 1,528 cases of extra-judicial execution in Manipur be investigated by a special, court-appointed team. I juxtapose these orders with an older body of Supreme Court decisions reviewing national security legislation. I reflect upon judicial deference, rigour, ambition and approach to fundamental rights displayed across these various cases. I begin by considering how the Supreme Court has reviewed the constitutionality of major national security laws in Section I. In Sections II and III, I analyse in detail the Court’s orders in Sundar and EEVFAM respectively. Finally, in Section IV, I compare the Supreme Court’s response to these different types of security-related petitions. I show that the Supreme Court has been assertive when it considers quite closely the content of fundamental rights and the ground-level effects of the challenged law or policy. I argue that the Supreme Court should, in general, be assertive when reviewing security laws or policies. Assertive scrutiny by the judiciary is particularly important given the Indian government’s tacit support for unlawful violence in response to security threats, and the Supreme Court’s own past lapses when reviewing security laws.

Judicial review of national security laws Background Since gaining independence in 1947, India has experienced separatist demands, peaceful as well as violent, in a few different regions. It has also faced terrorist violence by foreign and domestic non-state groups on many occasions, with attacks targeting public places, sites of worship, government property, political leaders and, in 2001, the Indian Parliament. To tackle these challenges, the Indian government wields strong security powers, some of colonial pedigree and some more recent, located in national as well as state laws. These laws significantly enhance the state’s ordinary powers to investigate, detain, prosecute, punish and use force against individuals and to search and seize property. As such, many aspects of India’s main security laws sit uneasily with the fundamental rights guaranteed to individuals in the Indian constitution. Over the years, national security laws have been associated with serious abuses by state actors. Abuse, in turn, has fueled legal challenges against the constitutionality of these laws. In this Section, I look at two cases challenging anti-terrorism laws – Kartar Singh v State of Punjab6 (“Kartar Singh”), decided in 1994, which addressed the constitutionality of the Terrorist and Disruptive Activities (Prevention) Act7

5 Supreme Court of India, Order in WP (Civil) No. 250/07, July 8, 2016. 6 Kartar Singh v. Punjab (1994) 3 SCC 569 (India) [“Kartar Singh”]. 7 The Terrorist and Disruptive Activities (Prevention) Act, 1987, No. 28, Acts of Parliament, 1987 (India) [“TADA”].

Securing rights, protecting the nation? 61 (“TADA”) and People’s Union of Civil Liberties v Union of India8 (“PUCL”), decided in 2004, which addressed the constitutionality of the Prevention of Terrorism Act9 (“POTA”). I also look at Naga People’s Movement of Human Rights v Union of India10 (“Naga People’s Movement”) in 1998 which considered the constitutionality of military policing in regions designated as “disturbed” under the Armed Forces (Special Powers) Act.

Judicial review of anti-terrorism legislation The Terrorism and Disruptive Activities (Prevention) Act (TADA) was legislated in 1985, after the assassination of the Indian Prime Minister in 1984 by bodyguards sympathetic to separatist insurgency in Punjab. It remained in force until 1996, when it lost the support of opposition parties in Parliament. A few years later, however, most of the provisions in TADA were incorporated into the Prevention of Terrorism Act, which was legislated ostensibly to fulfil international obligations in the wake of 11 September 2001. Both laws criminalised committing or supporting terrorist acts of varying degrees of seriousness. The offences they created were wide and ambiguous in scope.11 Substantive ambiguity – and the unpredictable discretion it gives the police and prosecution – was accompanied by procedural standards that sharply curtailed the rights of the accused as compared to India’s ordinary Code of Criminal Procedure. Both laws created special courts to try terrorist offences, which, while technically open, could hold proceedings “at any place” that was “expedient or desirable”, sometimes resulting in trials far from public view. They allowed judges to presume guilt based on certain types of circumstantial evidence, and laid down a low threshold for shifting the burden of proof to the accused in relation to serious offences that carry severe punishment. For example, evidence of the accused person’s fingerprints found on “anything” connected to a terrorist offence, or evidence of the accused person having arms or explosives that might have been used in a terrorist offence was sufficient to displace the presumption of innocence. The threshold for holding closed or “in camera” proceedings was low, and the court could even try the accused in his absence “if it thinks fit”, something the ordinarily applicable Code of Criminal Procedure does not allow. The petitioners in Kartar Singh challenged several provisions in TADA, basing their arguments on the rights to life, due process and freedom of expression. The challenged provisions were largely upheld by the Supreme Court in Kartar

  8 People’s Union of Civil Liberties v. India, (2004) 9 SCC 580 (India) [“PUCL”].   9 The Prevention of Terrorism Act, 2002, No. 15, Acts of Parliament, 2002 (India) [“POTA”]. 10 Naga People’s Movement of Human Rights v. India, AIR 1998 SC 432 (India) [“Naga People’s Movement”]. 11 Surabhi Chopra. ‘National Security Laws in India: The Unraveling of Constitutional Constraints’ [2016] 17(1) Oregon Review of International Law, 104–110.

62  Surabhi Chopra Singh. Only one provision was struck down completely: the Court invalidated the power to identify suspects based upon photographs as allowing too much room for error.12 The PUCL case challenging POTA was more limited in scope than Kartar Singh. Since POTA entirely mimicked or mildly modified many of the provisions in TADA, the constitutionality of executive powers in POTA had been largely settled in the Kartar Singh decision. In both cases, the Supreme Court remedially interpreted a couple of provisions. The Court read a mens rea requirement into the offence of abetting terrorism, which had been drafted so ambiguously in TADA as to carry strict liability.13 In PUCL, the Supreme Court similarly held that the equivalent offence in POTA required intention to abet terrorism, and the offence of unauthorised possession of arms required knowledge of possession.14 But while the Court was disturbed by these particular provisions, it had no quarrel with other, equally stark departures from fair-trial requirements. For example, 180-day pre-charge detention for terrorism offences was upheld,15 and so was the requirement that bail was subject to a prima-facie assessment of innocence.16 Ordinarily, a suspect can be held in pre-charge detention for a maximum of 24 hours before being produced before a judge,17 and bail depends upon weighing a range of factors, including the seriousness of the offence and quality of evidence, as well as the risk of whether the accused might abscond, threaten public safety, intimidate witnesses or obstruct justice.18 The Supreme Court also upheld, inter alia, special courts, the government’s broad powers to ban organisations,19 as well as provisions overturning a longstanding ban on using custodial confessions as evidence during trial.20

Judicial review of military policing legislation While anti-terrorism laws apply across India, regions where separatist groups are active are subject to a special security measure. The armed forces are deployed in these regions under the long-standing Armed Forces (Special Powers) Act21 (“AFSPA”). This law allows national and state governments in India to designate parts of the country as “disturbed”22 and deploy the armed forces to maintain order in these areas. Military policing under AFSPA has been in force in the

12 13 14 15 16 17 18 19 20 21 22

Kartar Singh, para 361. Id., paras 130–133. PUCL, paras 25, 27. Kartar Singh, paras 326, 328, 329. PUCL, paras 65–66. Code of Criminal Procedure, Section 151(2); Constitution of India, Article 22(2). See, for example, Kalyan Chandra Sarkar v. Rajesh Ranjan [2004 (7) SCC 528], para 11. PUCL, paras 41–42. Kartar Singh, paras 253–255; PUCL, paras 62–63. The Armed Forces (Assam and Manipur) Special Powers, No. 28 of 1958 [“AFSPA”]. AFSPA, Section 3.

Securing rights, protecting the nation? 63 northern state of Kashmir since the 1990s, and in parts of northeast India from 1958. In these regions, the army and paramilitary forces operate alongside the civilian police. AFSPA-empowered troops supplement rather than displace the police, at least in theory. However, the coercive power armed forces can wield in their “policing” role under AFSPA is stronger in many ways than the power the regular police force can ordinarily exercise.23 Troops deployed under AFSPA have greater powers to search and seize people and property and to use force against individuals.24 Their power to use fatal force, in particular, is markedly wider than the equivalent power granted to the police under India’s Code of Criminal Procedure.25 These expansive powers to use force under AFSPA are coupled with generous protection from legal action. AFSPA bars criminal as well as civil proceedings against the armed forces in a disturbed area, unless expressly permitted by the national government.26 To prosecute a soldier for allegations of unlawful violence, the prosecutor on the ground would have to request the state government to ask the central government for permission to proceed. An individual seeking to privately sue a soldier or a regiment for abusive acts would also have to follow the same onerous process. Very limited information is available on legal action against soldiers in disturbed areas. The little that is available suggests that permission to prosecute soldiers accused of unlawful violence is vanishingly rare.27 The Indian government has been staunchly protective of armed forces tasked with tackling separatist groups, even when confronted with evidence of serious criminality. As a result, the insulation from legal action under AFSPA operates in fact as complete immunity for troops. In Naga People’s Movement for Human Rights, a civil society group challenged the constitutionality of AFSPA. Just as the Supreme Court substantially upheld anti-terrorism laws, it also endorsed AFSPA, save for one provision. In Naga People’s Movement for Human Rights, the Court read a six-month limit into the government’s power to declare an area “disturbed” and trigger AFSPA’s military policing regime.28 This time-limit

23 Code of Criminal Procedure, Sections 70, 72, 77, 93, 94, 95, 97, 100. 24 AFSPA, Sections 4(d)-(e), 6. 25 Code of Criminal Procedure, Sections 46, 130. 26 AFSPA, Section 7. 27 Devyani Srivastava. 2013. ‘Rights-based Critique of AFSPA’ In: Vivek Chadha ed. Armed Forces Special Powers Act: The Debate. New Delhi: Institute for Defence Studies and Analyses, 72. See also Freny Manecksha, Shroud of Impunity, India Together, December 10, 2011, http://indiatogether.org/afspa-human-rights (last visited January 9, 2016), in relation to Kashmir. See, in relation to Manipur, Civil Society Coalition on Human Rights in Manipur and the UN. 2012. Manipur: A Memorandum of Extrajudicial, Arbitrary or Summary Executions, 11 [submitted to Christof Heyns, United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions]. 28 Naga People’s Movement, para 43.

64  Surabhi Chopra is only a modest check: it does not prevent national and state governments from renewing declarations every six months for years at a time. However, it does compel officials to reconsider biannually whether military policing is still necessary. In addition, the Supreme Court clarified that AFSPA could not circumvent the constitutional right to be produced before a court within 24 hours of arrest.29 This right applied to anyone arrested by the armed forces.30 However, despite many instances of arbitrary detention in armed forces’ facilities, the Court preserved problematic wriggle-room for AFSPA-empowered troops by adding that the 24-hour deadline excluded time spent traveling.31

Summing up The Supreme Court’s jurisprudence on the constitutionality of national security laws indicates deep-seated, far-reaching judicial deference on questions of national security. However, two more recent decisions suggest that the Indian Supreme Court can, on occasion, be more robust even during security-related review. I look at the Supreme Court’s decision on amateur, auxiliary “special police” in the central Indian state of Chhattisgarh in the next section. Following that, I examine the Court’s response to extrajudicial killing by the armed forces and police in the AFSPA-regulated state of Manipur.

Reviewing security policy in Chhattisgarh Background Mineral-rich regions in Chhattisgarh in central India are marked by severe, chronic deprivation. Inhabited primarily by indigenous tribes,32 these areas have historically had poor access to basic public goods such as education and healthcare.33 Living on land attractive to extractive industries leaves tribal communities particularly vulnerable. Many have suffered heavy-handed displacement, and the impoverishment, ill-health and cultural dislocation that follow such upheaval.34 These conditions render the majority-indigenous districts of Dantewada, Bastar and Bijapur prime territory for radical-left, “Maoist” groups. Maoist groups have

29 30 31 32

Constitution of India, Article 22(2). Naga People’s Movement, para 54. Id. Census of India, Basic Data Sheet: Bastar; Census of India, http://censusindia.gov.in/Dist_ File/datasheet-2215.pdf (accessed November 19, 2017), Basic Data Sheet: Dantewada, http://censusindia.gov.in/Dist_File/datasheet-2216.pdf (accessed November 19, 2017). 33 Planning Commission of India. 2011–12. State Specific Poverty Lines & Lorenz Ratio Estimates – Monthly Per Capita Expenditure (MPCE) Based on MRP, http://planning commission.nic.in/data/datatable/data_2312/DatabookDec2014%20101.pdf (accessed November 19, 2017). 34 Planning Commission of India. 2008. Development Challenges in Extremist Affected Areas: Report of an Expert Group to the Planning Commission. New Delhi: Government of India.

Securing rights, protecting the nation? 65 been active in these districts since the 1980s, waging a guerilla “people’s war”, attacking government personnel and property, and extorting “levies” from individuals as well as corporations.35 The Maoists have also pressed for greater tribal control over forest produce, water and land. By the 2000s, Maoist groups held sway in significant parts Dantewada, Bastar and Bijapur. Escalating Maoist violence elicited a harsh response from the state. Chhattisgarh passed one of the most expansive security laws in India in 2006, criminalising a potentially vast swathe of peaceful speech and protest critical of the state.36 The central government deployed over 10,000 national paramilitary forces to supplement the Chhattisgarh state police.37 Police and paramilitary troops routinely resorted to beatings, torture and extrajudicial killing in Dantewada, Bastar and Bijapur. The government also encouraged grassroots resistance to the Maoists, called Salwa Judum. With government backing, Salwa Judum groups morphed into armed militias.38 Between 2005 and 2007, state troops and Salwa judum groups raided hundreds of villages, looting and burning homes, forcing residents into “relief camps”, and assaulting those who resisted. As a result, thousands of families fled to the neighboring state of Andhra Pradesh, where they lived without access to schooling or healthcare for extended periods of time.39 While supporting unofficial militias, the Chhattisgarh government also recruited people into an auxiliary police cadre called the special police officers (SPOs) to fight the Maoists. SPOs were supposed to strengthen counter-insurgency efforts through their insider knowledge of local communities and heavilyforested local terrain. Many Salwa Judum members were recruited to the SPO programme,40 bringing their vigilante activities into a formal, official structure. In

35 Asian Centre for Human Rights. 2006. The Adivasis of Chhattisgarh, Victims of the Naxalite Movement and Salwa Judum Campaign. New Delhi: Asian Centre for Human Rights, www.achrweb.org/reports/india/Chattis0106.pdf (accessed November 2, 2017), 13–14. Human Rights Watch. 2008. Being Neutral Is Our Biggest Crime”: Government, Vigilante, and Naxalite Abuses in India’s Chhattisgarh. New York: Human Rights Watch, 20–23. 36 Chhattisgarh Special Public Security Act, 2006, No. 14, Acts of Parliament, 2006. 37 Ministry of Home Affairs. 2004. Annual Report 2003–2004. New Delhi: Government of India, 3; Ministry of Home Affairs. 2008. Annual Report 2007–2008. New Delhi: Government of India, 21. 38 Human Rights Watch. 2008. Being Neutral Is Our Biggest Crime”: Government, Vigilante, and Naxalite Abuses in India’s Chhattisgarh. New York: Human Rights Watch, 29–45; Asian Centre for Human Rights. 2006. The Adivasis of Chhattisgarh, Victims of the Naxalite Movement and Salwa Judum Campaign. New Delhi: Asian Centre for Human Rights, www. achrweb.org/reports/india/Chattis0106.pdf (accessed November 2, 2017), 15, 34–36. 39 Human Rights Watch. 2008. Being Neutral Is Our Biggest Crime”: Government, Vigilante, and Naxalite Abuses in India’s Chhattisgarh. New York: Human Rights Watch, 43–45. National Commission for the Protection of Child Rights. 2007. Visit to Dantewada (Chhattisgarh) & Khammam (Andhra Pradesh) To Investigate Status of Health and Education of Children affected by Civil Unrest, December 2007. New Delhi: Government of India. 40 Human Rights Watch. 2008. Dangerous Duty: Children and the Chhattisgarh Conflict. New York: Human Rights Watch, 19.

66  Surabhi Chopra addition, many people forced out of their homes, including many minors, were also pressured into joining.41 By 2005, an estimated 3,500 SPOs were active in Dantewada and Bijapur districts.

The petition In 2007, the alarming violence and displacement by security forces and Salwa Judum was challenged before the Supreme Court in two petitions.42 The Court combined both into the case of Nandini Sundar and Others v. State of Chhattisgarh. The Supreme Court ordered India’s National Human Rights Commission (NHRC) to investigate the petitioners’ allegations. When the NHRC’s report corroborated their account in 2008, the Court directed the government of Chhattisgarh to dismantle the 23 camps it had set up, support villagers in returning to their homes, and compensate victims of violence.43 Over the next two and half years, the Chhattisgarh government claimed it was rehabilitating villagers, and denied that it was sponsoring vigilante attacks.44 However, in a hearing in January 2011, it emerged that all 23 camps remained intact, and state troops still occupied public schools and hostels.45 The Supreme Court gave the government four months to vacate schools.46 Later that year, the petitioners returned to the Supreme Court with a sobering update. They alleged that security forces had burned 300 homes, raped three women and killed three men in the districts of Dantewada and Bijapur in March 2011. They claimed that activists who visited these areas had themselves been attacked by Salwa Judum members, schools were still being used as outposts, and SPOs and vigilantes continued to operate without restraint or accountability.47

The government’s arguments The Chhattisgarh government argued that Salwa Judum was a spontaneous grassroots movement that had petered out of its own accord.48 Having dismissed Salwa Judum, the government concentrated on defending the SPO programme.

41 Id. 42 Nandini Sundar and others v. State of Chhattisgarh, Writ Petition (Civil) No. 250 of 2007 and Kartam Joga and others v. State of Chhattisgarh and Union of India, Writ Petition (Criminal) No. 119 of 2007. 43 Sundar, para 24. 44 Id. 45 Nandini Sundar and others v. State of Chhattisgarh (2011) 13 SCC 46, para 26. 46 Id., para 5. 47 Sundar, para 24. 48 Id., para 29.

Securing rights, protecting the nation? 67 It argued that SPOs brought distinct advantages to counter-insurgency, including their familiarity with local communities, dialects and geographies.49 The Supreme Court learned that SPOs were recruited under the Chhattisgarh Police Act,50 legislated in 2007. Under this new legislation, SPOs enjoyed the same powers as the regular police and bore the same responsibilities.51 Perhaps seeking to dispel the view of SPOs as rampaging and brutal, the government emphasised that they were subject to the same regulations, discipline, command and control as the rest of the police force.52 It also stressed that SPOs transgressing official codes had been appropriately disciplined, suspended from service and even criminally investigated when necessary.53 It highlighted the twomonth training that SPOs received, claiming that recruits were taught, inter alia, crime-control skills, legal standards, constitutional and human rights norms and forensic methods.54 Finally, the government also denied that children from Salwa Judum camps had been recruited as SPOs.

The court’s response The Supreme Court was unpersuaded. Holding that the SPO programme flagrantly transgressed constitutional boundaries, the Court struck it down.55 It found Chhattisgarh’s power under the Chhattisgarh Police Act to appoint “any person” as an SPO excessive, saying that this “unguided power” might need to be read down and restricted.56 More specifically, it held that maintaining an auxiliary police force of this nature violated the fundamental rights to life and equality under the Indian constitution. The Court found that SPOs were discriminated against because they performed core policing, including armed combat against Maoist insurgents, under conditions vastly less favourable than the regular police. SPOs received honorariums rather than salaries, ad hoc rather than regular contracts, and barely any training.57 In the Court’s view, the modest backgrounds of many SPOs, including their limited educations, only heightened their vulnerability and disadvantage relative to the ordinary police force. Perhaps to underline the special role played by SPOs, the Chhattisgarh government had highlighted their roots in communities that had suffered Maoist violence as well as the personal losses they had suffered. It emphasised that SPOs

49 50 51 52 53 54 55 56 57

Id. Chhattisgarh Police Act, 2007 (Act 13 of 2007). Sundar, para 29. Id., para 30. Id. Id., para 30, 45–46. Id., para 73. Id., para 38. Id., para 40.

68  Surabhi Chopra participated in “pitched battles” and were the “first targets of violence”.58 These arguments proved counter-productive. The Court felt that harnessing the personal losses and “dehumanised sensibilities” of young people affected by violence was cynical, “deserving of the severest constitutional opprobrium”.59 It went on to hold that deploying poorly trained, minimally skilled individuals to combat insurgency exposed them to unreasonable levels of danger, and was, therefore, a violation of their constitutional right to life. The Court drew support for this view from government submissions about the relatively high number of SPOs killed in combat as compared to professional police personnel.60 It held that the risk of retaliation from Maoist groups faced by SPOs also violated their right to life.61 After declaring that the SPO programme violated the right to life of its recruits, the Supreme Court held that it also violated the right to life of people exposed to these poorly trained, vendetta-driven “police”. The Court noted that the boundary “between self-defence and unwarranted firing might be very thin” and require “a high level of discretionary judgment”.62 It found itself unable to “reasonably assume” that SPOs, with their minimal training, understood the nuances of the law that bound them.63 The danger that SPOs would use excessive force was compounded, in the Court’s view, by the fact that many recruits came from families that had been targeted by Maoists. The government had emphasised the losses suffered by SPOs as a mark of their commitment. The Supreme Court was unwilling to treat personal trauma as a qualification, noting instead that “rage and hatred” might render SPOs vengeful and indiscriminate.64 It cited the high rate at which SPOs had been dismissed (submitted by the Chhattisgarh government as proof of accountability), as well as the onslaughts documented by the NHRC and NGOs.65 It also worried that firearms given to SPOs might not be reclaimed, and state-supplied weapons could fuel future vigilante violence.66 The national Ministry of Home Affairs had argued that its constitutional responsibility was limited to funding the SPO programme. Rejecting this, the Court highlighted the national government’s obligation to enforce fundamental rights.67 If a state government’s counter-insurgency policy was potentially violating rights on a large scale, the central government had a duty to examine that policy rather than continue financing it.

58 59 60 61 62 63 64 65 66 67

Id., para 45–46. Id., para 52–53. Id., para 44. Id., para 66. Id., para 48. Id., para 48–50. Id., para 51. Id., para 59–60. Id., para 58. Id., para 41–42.

Securing rights, protecting the nation? 69 The Supreme Court’s ultimate order quite comprehensively dismantled the SPO programme. Holding that the government had abdicated its constitutional responsibility to “provide security to citizens by having appropriately trained professional police . . . in sufficient numbers”, the Court ordered the Chhattisgarh government to stop using SPOs to perform the jobs of the police.68 While SPOs could still assist the police to provide disaster-relief and manage traffic, appointing them to perform the duties of regular police officers was unconstitutional.69 The government was told to recall the arms distributed to recruits over the years. It was ordered to secure the safety of current and former SPOs. At the same time, it was also directed to prevent vigilante violence, and investigate and prosecute criminal activities by SPOs.70 The central government was ordered to stop funding the SPO programme.71 In addition, the specific, very serious allegations about Salwa Judum/SPO violence in Dantewada district, which should ordinarily have been addressed by the state government, were handed to the specialist Central Bureau of Investigation.72 The Central Bureau of Investigation ultimately filed criminal charges against seven police officers in 2016,73 to protests by the Chhattisgarh police.74 In the years since 2011, the petitioners have been harassed and threatened, while senior officials resist attempts to prosecute SPOs and the police.75

Responding to extrajudicial killing in Manipur The petition In 2012, two civil society groups petitioned the Supreme Court about extrajudicial killing in Manipur. The first, Extrajudicial Execution Victims’ Families Association (EEVFAM), was a support group for relatives of people killed by the armed forces and police. Along with the second petitioner, Human Rights Alert, EEVFAM sought to challenge the impunity surrounding such killing. The petitioners laid before the Supreme Court a list of 1,528 people whom they alleged had been tortured and killed unlawfully by security forces in Manipur.

68 Id., para 73. 69 Id., para 79. 70 Id., para 75. 71 Id. 72 Id., para 79–80. 73 Order in Sundar v. Chhattisgarh, I.A. 9/2015 in Writ Petitions Civil Nos. 250/2007, December 15, 2015. 74 Divya Trivedi, Nailing a Lie, Frontline, November 25, 2016, https://frontline.thehindu. com/cover-story/nailing-a-lie/article9319186.ece (accessed April 24, 2019). 75 National Human Rights Commission. 2016. ‘NHRC Summons the Chief Secretary of Government of Chhattisgarh and IGP, Bastar to Explain the Allegations of Hostility and Abuse of Power Against Human Rights Defenders (17.11.2016)’ http://nhrc.nic.in/pressrelease/nhrc-summons-chief-secretary-government-chhattisgarh-and-igp-bastar-explain (accessed November 20, 2017).

70  Surabhi Chopra They presented more details on a small proportion of these cases, and highlighted 10 in particular that were corroborated by eyewitness evidence. The petitioners alleged that the police had not recorded or investigated these killings. Instead, the police had dismissed these deaths by labelling victims as militants. Arguing that the Manipur police and senior government officials had ignored violence that was homicidal rather than lawful, the petitioners asked the Court to appoint a special investigation team from outside Manipur to examine these grave, recurring violations.76

Background The deaths highlighted by EEVFAM and Human Rights Alert had taken place over a 23-year period. For this entire period of time, and many years prior as well, the armed forces had been deployed in Manipur under AFSPA to tackle separatist violence.77 AFSPA’s long trajectory in Manipur has been marked by serious abuse by the armed forces. As discussed earlier, criminal proceedings against culprits are effectively closed off because the AFSPA insulates troops from legal action. Over the years, many victims of abuse and families of people killed by soldiers have sought an alternative judicial remedy. They have petitioned the judiciary for redress under its constitutional jurisdiction to remedy violations of fundamental rights. However, despite several High Court decisions in favour of victims of abuse, impunity for soldiers and special police forces in Manipur remains entrenched.78 While families of people killed by troops and the police have received monetary assistance,79 perpetrators have rarely been investigated or put on trial.80 EEVFAM’s petition was a response to this impasse.

The government’s arguments The national government denied that any of the 1,528 deaths mentioned in EEVFAM’s petition raised concerns.81 It argued that each of these killings had been lawful, each of the dead an insurgent waging war against India.82 No evidence was offered for this blanket claim about a large number of people killed over a long span of time.

76 EEVFAM, para 6–7. 77 Home Department Notification No. 7/20/67-POL 1 (Pt), 8 September 1980, in MANIPUR GAZETTE EXTRAORDINARY No. 183 (Imphal, Government of Manipur) 10 September 1980 [designating Manipur Central District as a disturbed area under the AFSPA]; Extra Judicial Execution Victim Families Association v. Union of India (2016), Supreme Court of India, Judgment in Writ Petition (Criminal) No. 129 of 2012, para 41. 78 Surabhi Chopra. ‘Judging the Troops: Exceptional Security Measures and Judicial Impact in India’ [2019] Law and Social Inquiry 1–31. doi:10.1017/lsi.2019.3. 79 Id. 80 Id. 81 EEVFAM, para 33. 82 Id., para 37.

Securing rights, protecting the nation? 71 Instead, the government emphasised that separatist violence in Manipur was strengthened by foreign support and could be adequately tackled only by deploying the military. Highlighting the number of insurgents in Manipur (which it estimated variously at 5,000 as well as 1,500),83 the government argued that the military needed special legal protections to “enable them to operate with the required thrust and drive” in volatile conditions.84 Having asserted that expanded powers under the AFSPA were essential, the government argued that anyone killed using those powers was, by definition, a separatist who deserved, under the law, to be killed. Going further, the government insisted that separatist violence in Manipur was tantamount to war, and insurgents were, therefore, enemies waging war against India. Therefore, the armed forces had not only been acting within their powers in killing each of the individuals mentioned in the EEVFAM petition, they had been obligated to defend India against its enemies. A soldier failing to do so, the government added, risked breaking military law. In addition to arguing that AFSPA-empowered troops acted lawfully, the government also claimed that any transgressions were adequately addressed internally by the armed forces. As evidence, the government claimed that at least 70 armed forces personnel had been punished.85 However, it offered no further details. Why or when these individuals had been investigated, whether they had faced administrative or court martial proceedings, and whether they even had anything to do with extrajudicial killings in Manipur was entirely unclear. Independent external investigation, the government argued, would damage troop morale which in turn would threaten India’s security. This realpolitik assertion was accompanied by a legal argument: the government claimed that a member of the military could only be tried for a criminal offence by the armed forces within the court martial system.86 This was an overstatement. While the law ordinarily funnels soldiers into the court martial system, it allows for trials in the ordinary criminal courts under certain conditions.87

The court’s response Thus, to refute allegations of extra-judicial killing without case-specific evidence, the government conflated powers under the AFSPA with unlimited license to use fatal force, and separatist violence in Manipur with war. The Supreme Court identified and unpicked these conflations. The Court noted that the power to use force under the AFSPA was “vast”,88 but however lavish this power, it had limits. Therefore, if excessive force had been

83 84 85 86 87 88

Id., para 19, 34. Id., para 13. Id., para 26. Id., para 153. Army Act, No. 46 of 1950 (India), Sections 70, 125, 126. EEVFAM, para 114.

72  Surabhi Chopra used in any of the 1,528 killings raised by the petitioners, it would amount to extra-judicial execution.89 The Supreme Court also rejected the argument that each person killed by the armed forces was a militant, and an “enemy of India”. Importantly, the Court recognised that a person could break the law in an AFSPA-regulated disturbed area (by carrying arms, for example) without automatically being a militant (which required participation in violent insurgency) or an “enemy” (which required at least “some attempt or semblance” of overt violence).90 Moreover, it stressed that unprovoked, excessive or retaliatory violence by troops was not rendered lawful simply because the target was a militant. The argument that the armed forces in Manipur were effectively on the battlefield was dismissed. All violent resistance “cannot be branded acts of war”, the Court said, adding that “sporadic but organized killings by militants” do not amount to war or war-like conditions.91 Disputing jurisdiction was also irrelevant, since criminal prosecution was not at issue at this point in the proceedings. The petitioners were asking for extrajudicial killings to be investigated, and the government was strenuously contesting any attempts to do so. In response to the argument that ordinary criminal courts lacked jurisdiction over the alleged killings, the Supreme Court reiterated the clear statutory provisions to the contrary.92 It also firmly rejected the argument that internal inquiries by the armed forces rendered investigation by the police unnecessary,93 noting that judicial rather than administrative inquiries were particularly important where the allegations concerned serious, widespread abuse by the state.94 Thus, the Supreme Court asserted the importance of fair, independent investigation, and refused to endorse legal immunity for troops tackling separatist violence. However, its ultimate order was disappointing. Given that the Indian government had entirely failed to back its claims that the killings in this case were legitimate and official inquiries rigorous, the Supreme Court had strong grounds to order special investigation. But rather than granting EEVFAM and Human Rights Alert the court-monitored special investigation team they sought the Supreme Court merely asked for further information on the 1,528 killings mentioned in the petition. As a first step, it wanted further details on the 62 cases foregrounded by the petitioners. In the months that followed, the petitioners organized a grassroots, information-gathering effort and submitted additional information about 655 of the 1,528 killings raised in the initial petition. The Supreme Court’s response to this new information was disappointing. A hundred of these cases had previously

89 90 91 92 93 94

Id., para 123. Id., para 139. Id., para 115. Id., para 163. Id., para 170. Id., para 172.

Securing rights, protecting the nation? 73 been examined and found to be credible by official commissions of enquiry, the High Court or the National Human Rights Commission. Only these cases were handed to the specialist Central Bureau of Investigation for investigation.95 Thus, the Supreme Court effectively ignored another 500 allegations of extrajudicial killing which were now supported by at least some evidence. It noted that these “simple allegations” – cases where families had not lodged formal complaints with the police or petitioned the courts for compensation – need not necessarily be investigated, as it was dealing not with “individual cases but a systemic . . . response relating to constitutional criminal law”.96 Thus, the CBI is investigating only the subset of allegations that have already been validated (albeit not to the criminal standard of proof) by other institutions. By late 2018, the CBI had reportedly filed criminal charges against close to 50 paramilitary and police personnel in nine cases.97 However, some of these cases have yet to be tried because the Manipur government has allegedly withheld permission to prosecute.98 The EEVFAM case continues.

Abdication, assertion and line-holding In the abstract, we would expect courts to be most circumspect when reviewing legislation, more at ease when reviewing policies, and boldest when responding to grave, systemic violations of fundamental rights. When judges strike down statutory provisions, they are overturning the outcome of parliamentary deliberation, so caution is appropriate. At the other end of the spectrum, when responding to grave violations such as forced displacement, sexual assault or extrajudicial killing, judges are not disturbing either the legislature’s choices about statutes or the executive’s choices about policy. In theory, government officials and legislators too would want such abuse stopped swiftly, so the judge advances an ostensibly shared goal. The Indian Supreme Court certainly reviewed security legislation extremely cautiously in Kartar Singh, PUCL, and Naga People’s Movement. However its approach offers little comfort. So superficial is the Court’s engagement with constitutional standards and evidence of abuse, that its attitude in these cases can be characterised as judicial abdication.

95 Supreme Court of India, Order in Writ Petition(s)(Criminal) No(s). 129/2012, August 22, 2017, para 26. 96 EEVFAM, para 4. 97 “EEVFAM Laments”, Sangai Express, February 18, 2019, www.thesangaiexpress.com/ eevfam-laments/ (accessed April 24, 2019). 98 “NGOs Accuse Manipur Govt of not Granting Prosecution Sanction”, Northeast Today, March 16, 2019, www.northeasttoday.in/ngos-accuse-manipur-govt-of-not-granting-pros ecution-sanction/ (accessed April 24, 2019); Anoo Bhuyan, ‘Manipur Govt Yet to Give Permission to CBI to Prosecute ‘Fake Encounter’ Cases’ Wire, February 28, 2019, https:// thewire.in/law/manipur-govt-yet-to-give-permission-to-cbi-to-prosecute-fake-encountercases (accessed April 24, 2019).

74  Surabhi Chopra By contrast, when reviewing Chhattisgarh’s policy of deploying SPOs in Sundar, the Supreme Court not only shut down the use of SPOs, but reached beyond the SPO programme to quash the government’s statutory power to use auxiliary police as counter-insurgents. It also censured development policies in Chhattisgarh in general, commenting unreservedly on matters that might have shaped the state’s brutality, but were not actually being litigated nor particularly amenable to judicial prescription from on high. However, this commentary can be detached from the Court’s core analysis in Sundar, and the sharp, consequential directives it issued. A different, more circumspect bench of judges could easily have reached the same operative decision had they too attended carefully to the evidence in the case. Thus, while some of the Supreme Court’s rhetoric in Sundar was activist, the Court’s order is an example of well-calibrated judicial assertion. Equivalent assertion is absent in EEVFAM. The Court rejected the government’s attempts to amplify its own powers and legal immunity for troops. Many years previously, while upholding AFSPA in Naga People’s Movement, the Supreme Court had noted that troops who transgressed their AFSPA powers would face punishment. In EEVFAM, the Court emphasised that it was merely reiterating its earlier observation. Although the Supreme Court’s insistence that security forces were not legally exempt from criminal proceedings was important, this too was a restatement of the plain words of the relevant legislation and established case law. Given that the EEVFAM petition alleged years-long, repeated extrajudicial killing, the Supreme Court could have pressed for more disclosure and explanation from the government. The Court failed to note that refusing to investigate allegations of unlawful killing by security forces was de facto government policy. It could have expressed unease about how AFSPA-regulated troops seemed, in practice, to have complete legal immunity. Its line-holding approach did not sufficiently confront the government’s excuses and evasion about extra-legal violence in Manipur. Why would the Supreme Court take an assertive stance in response to one situation of egregious abuse by security forces, and a line-holding stance in another? The events in Sundar were concentrated within a few districts over a few years. Moreover, violence was currently unfolding, which made intervention urgent. Formal government policy (the SPO programme) and legislation (the Chhattisgarh Police Act) was directly engaged in Sundar. The facts in EEVFAM were more tangled and diffuse. The case involved more than 1,500 separate instances of extrajudicial killing across different parts of Manipur over two decades, implicating not just the police but also the Indian military. It directly engaged a policy – tolerating and rewarding extrajudicial killing – that had persisted for years, but was necessarily informal. An informal policy, however well-established, is easier for governments to deny, and harder for victims to challenge. The petitioners in Sundar presented the Supreme Court with documentation and affidavits from affected communities, as well as strong photographic evidence. For example, photographs of schools occupied by security forces contradicted the

Securing rights, protecting the nation? 75 Chhattisgarh government’s claims that schools had been vacated. Reports by official watchdog institutions corroborated petitioners’ findings, which strengthened their case. Onslaughts by troops, mass displacement and internment in camps had been documented and criticised by the National Commission for Protection of Child Rights and the National Human Rights Commission as well as an expert group appointed by the Planning Commission, a national policy advisory body. Presenting sufficient evidence was daunting in EEVFAM, given that the case raised so many killings spanning such a long period of time. Killing and torture by state actors in Manipur have been documented by human rights groups over many years. But the petitioners did not have the same degree of corroboration by official bodies as the petitioners in Sundar did. The NHRC’s contribution to EEVFAM proceedings was uninspiring. It merely enumerated hearings about abuses by security forces it had conducted in the past in Manipur. That said, other authoritative sources gave the Supreme Court enough material from which to infer that security forces had routinely resorted to killing and torture in Manipur for years. In the EEVFAM case itself, the Court appointed a commission to examine some allegations of killing in depth. This commission concluded that all the allegations were credible. In addition, the NHRC complained about the government’s chronic refusal to follow its guidelines on responding to suspicious deaths at the hands of the police or military. Further, since the mid-1980s, the High Court had found allegations of extrajudicial killing to be credible and granted compensation to the next-of-kin in a number of cases.99 In more general terms, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions reported in 2013 that victims of violence by security forces in Manipur had little recourse, and recommended repealing AFSPA.100 Based on this material, the Supreme Court could justifiably have sanctioned a special investigation into extrajudicial killing in Manipur, while still presuming nothing adverse against any individual soldier or police officer. Thus, the nature of what petitioners challenged in these various securityrelated cases – legislation, government policy, abusive violence – only partially corresponds to whether we see abdication, assertion or line-holding from the Supreme Court. The Court reviewed formal security policy assertively, but grappled more gingerly with informal security policy. Complex facts steered it towards line-holding, while corroborative reports by official watchdogs seemed to contribute to a more assertive remedy. How the Supreme Court reasoned in the various cases discussed earlier in the chapter is also instructive. Across these cases, the Court’s assertiveness

 99 Surabhi Chopra. ‘Judging the Troops: Exceptional Security Measures and Judicial Impact in India’ [2019] Law and Social Inquiry 1–31. doi:10.1017/lsi.2019.3. 100 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Human Rights Council. 2013. Report on Mission to India, U.N. Doc A/HRC/23/47/Add.1 (April 26, 2013) (by Christof Heyns), para 24–27, 90, 100–101.

76  Surabhi Chopra corresponds to how closely it analyses fundamental rights and contextualises the law or policy being challenged.

Reasoning about rights In its decisions reviewing national security laws, the Supreme Court barely acknowledged that fundamental rights were limited by these laws, and was worryingly glib when upholding such limits. The Court’s response to most arguments that a contested provision violated a particular fundamental right was to declare bluntly that it didn’t, without further explanation. It occasionally noted that the Constitution permits the right to be limited. However, this justification explains little. Most rights in the Indian constitution can be limited. Rights such as freedom of expression or freedom of assembly cannot, by their nature, be absolute in any large, complex polity. International human rights law too recognises that most core individual rights can be limited. But restrictions that excessively dilute a fundamental right should not be imposed by the political branches, and if they are, should be invalidated by the judiciary. When upholding statutory provisions that limited rights, the Supreme Court failed to explain why the particular limits it upheld, including onerous restrictions on the rights to a fair trial, freedom of speech and even life, were permissible. Reasoned analysis rather than bald assertion would have compelled the Court to consider the effects of contested provisions with more care. It should have considered, for example, whether the shoot-to-kill powers in the AFSPA were so wide as to facilitate indiscriminate killing – in which case, they contravened the right to life. It could have been less sanguine about, inter alia, restrictions on bail, extended pre-charge detention, and very junior personnel having broad powers including the authority to demand confidential information from lawyers and journalists. Instead, the Supreme Court’s reasoning when reviewing security legislation implies that the legislature’s imprimatur validates any restriction, however extreme, on a fundamental right. By contrast, in Sundar, the Supreme Court explained clearly and specifically why the SPO programme violated the fundamental rights to equality and life. Its findings indicate that the state violates the right to life when its policies expose people to an unacceptably high risk of serious violence. When considering the rights of communities where SPOs were active, as well as the rights of SPOs themselves, the Court made clear that governments should responsibly calibrate the risks its policies create not just for ordinary civilians but also for its own employees and agents. The Supreme Court also implied that the national government, even at a remove from implementing the SPO programme, had a positive, “due diligence” duty to intervene if the programme was violating fundamental rights. The Ministry of Home Affairs had sought to absolve itself of responsibility by emphasising that its contribution to the SPO programme in Chhattisgarh was purely

Securing rights, protecting the nation? 77 monetary.101 The Supreme Court did not allow the national government to shirk responsibility simply because state governments are responsible for maintaining law and order under the Indian constitution. The Court implied that if the national government was funding the SPO programme, it had a responsibility to respond to reports of brutality and rights-violations by SPOs. As compared to Sundar, the EEVFAM Order was disappointing in its discussion of rights. The Supreme Court begins by asking whether families of people who have been extrajudicially killed “have any rights at all, other than receipt of monetary compensation”? As it goes further, however, the Court fails to properly analyses or articulate how rights and duties applied in the specific circumstances of the case. It could have noted that extrajudicial killing, if proved, is the starkest and most direct form of violating the fundamental right to life. It might also have noted that the right to equality was engaged, because victims of abuse by the armed forces in an AFSPA-regulated region face greater barriers to legal action than individuals who suffer comparable abuse – police torture, for example – in the rest of India. The Supreme Court should certainly have noted that the Indian constitution expressly recognises the right to seek a remedy for the violation of a fundamental right, and considered what this right to a remedy might encompass. International law offers sophisticated, concrete jurisprudence on the right to a remedy. The Supreme Court neglected this valuable resource. It acknowledged briefly that the United Nations Committee on Human Rights has said that families of people who have been extrajudicially executed have the “right to truth”.102 However, the Court did not incorporate international standards or jurisprudence into its analysis of extrajudicial killing in Manipur, missing an opportunity to add rigour and detail to domestic law on this issue.

Considering the law in context When reviewing national security laws, the Supreme Court emphasised the dangers posed by terrorism and separatism. However, it didn’t seek concrete information from the government about why the particular security powers being challenged were needed to ward off these dangers. It also disregarded information which suggested that the laws under review were being misused or facilitating abuse. Empirical evidence that anti-terrorism laws functioned largely as preventive detention laws, with the vast majority of cases collapsing after defendants spent years on remand, was ignored. Nor was it noted that the anti-terrorism powers in POTA were being used very heavily in states that had seen very little terrorist activity.103 When evaluating extended pre-charge detention under these

101 Sundar, para 32. 102 EEVFAM, para 3. 103 Id.

78  Surabhi Chopra laws, the heightened risk of custodial torture under TADA or POTA was not considered. Similarly, the Supreme Court upheld reduced access to legal remedies in AFSPA-regulated regions without factoring in evidence of horrifying torture and assault by troops on the ground. Thus, the Court evaluated rightsrestricting provisions in security laws without considering whether the way these powers had been wielded argued for narrower, criteria-bound discretion. Ignoring the effects of security measures was not an option in Sundar and EEVFAM, since the petitioners specifically asked the Supreme Court to address abuses by state functionaries. Both petitions required the Supreme Court to determine complex facts and raised difficult evidentiary challenges. In EEVFAM, the Court dealt with this predicament by emphasising its neutrality, refusing to assume that the deaths highlighted in the case were, in fact, extrajudicial killings, but also refusing to accept the government’s argument that no investigation was warranted. The Court departed from this studied neutrality only when the government claimed that the police could address the petitioners’ allegations in the ordinary course of things. The Court did not discuss this argument in the abstract. It noted that people who complained to the police about extrajudicial killing in Manipur risked retaliatory violence or criminal charges, and given such experiences, could not rely upon the criminal justice system to respond properly to their complaints.104 In Sundar, unlike in EEVFAM or its earlier jurisprudence, the Supreme Court steeped itself in socio-legal context. It took into account evidence of abuse by SPOs, as well as the political and economic circumstances in which these events were unfolding. The Court sharply criticised “predatory capitalism” by extractive industries in Chhattisgarh.105 While its critique of development policies in Chhattisgarh ranged considerably beyond the legal questions at issue in the case, the Court thought concretely and carefully about how the SPO programme would play out on the ground. It was acutely conscious of the structural vulnerability of the impoverished indigenous communities from which SPOs hailed. Despite the fact that some recruits might have wanted to become SPOs or found the terms attractive, the Supreme Court enumerated why they were being exploited nevertheless.

Conclusion The Supreme Court’s approach in Sundar points to how judges should proceed when reviewing security laws or policy. The nature of major security legislation in India imposes a special burden on the judiciary to focus strongly on fundamental rights when reviewing security policy or practice. Because statutes like AFSPA or the Chhattisgarh Special Public Security Act place such broad, ambiguous limits on fundamental rights, judges

104 Id., para 79. 105 Sundar, para 9–15, para 53.

Securing rights, protecting the nation? 79 should try to specify what these rights mean and the corresponding duties they impose on the state during counter-insurgency operations. Further, courts should also attend closely to how security law or policy plays out in context when determining whether fundamental rights are being violated in highly securitised environments such as Manipur or Dantewada. A policy such as Chhattisgarh’s SPO programme might seem justifiable in the abstract. But on the ground, it was a vehicle of targeted, persecutory violence, further enflaming insecurity in a volatile region. Seeking information on grassroots realities is particularly important because NGO and media advocacy might be dampened by restrictions on speech and assembly imposed by security laws in areas facing insurgency. On many occasions, the Supreme Court has overreached during public interest litigation, and interfered too readily in government policy. However, in public interest cases that implicate security laws or policies, the risk of overreach is low. The failures of governance raised in cases such as EEVFAM and Sundar do not flow primarily from inefficiency, corruption or apathy. Instead, these cases involve the state, at different levels and in various capacities, inflicting and tolerating unlawful violence. In both Sundar and EEVFAM, the government was remarkably, consistently recalcitrant. State and national governments in both cases either entirely deny allegations of assaults by security forces, or argue, without careful inquiry, that any violence that transpired was lawful. They insist that investigation is unnecessary, however serious the allegations at stake. The national government has sought through its arguments to expand the state’s security powers and legal immunity beyond the already generous license granted by security legislation in India. The tenuous, changeable claims (for, e.g., on troop numbers or disciplinary proceedings) and flimsy evidence proffered in response to extremely grave allegations of violence also underline the government’s lack of due diligence and good faith. Given the government’s tacit commitment to unlawful violence in response to security challenges, the judiciary risks being completely ineffectual if it doesn’t assert itself. In addition, the Supreme Court own abdication when reviewing security legislation give it a special responsibility to address security-related rights violations. The Court has contributed to the risk of unlawful violence by unreservedly endorsing expansive security laws, and upholding statutory provisions that fall below international standards on civil and political rights. It has insisted, despite disquieting evidence to the contrary, that the police and military can be trusted to wield wide coercive powers wisely. When, as in EEVFAM and Sundar, petitioners allege that these statutory security powers have been breached, the Court should be vigilant and robust.

4 India’s parallel justice systems Engaging with Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats through human rights Siddharth Peter de Souza Introduction India, as in many other societies that reflect complex traditions, customs and beliefs, has a variety of dispute resolution systems outside those that are defined and officially prescribed through legislation, court institutions and state authority. Post independence in 1947, proposals to reconstruct the government along local and indigenous lines, which would pay attention to the virtues of village autonomy and self-sufficiency, were rejected.1 As the Law Commission of India stated in its report on judicial administration, and in the context of building a welfare state: ‘No one can assert that in the conditions which govern us today, the replacement of professional courts by courts of the kind that existed in the remote past can be thought of’.2 In his analysis of the reasons for the containment of indigenous justice, Galanter argued that while proponents of the official system consisted of powerful lawyers who were invested in the system, the traditional system not only had no organized body of proponents, they also provided no viable alternative for how these systems would function and as a result, there was no concrete proposal on which this ‘revivalist cause’ could build a base.3 He argued that it was not that British Law was considered normatively superior but it was other aspects which were technical, ideological and organizational that played a role in replacing traditional law.4 Despite this move to look beyond traditional law, in a country like India, with distinct socio-economic plurality, there is a multi-layered legal society where elements of modernity interact unevenly with tradition.5 As a result, while formal

1 M. Galanter, ‘The Displacement of Traditional Law in Modern India’ (1968) 24 Journal of Social Issues 65. 2 Law Commission of India, 114th Report of the Judicial Administration (Law Commission of India 1958). 3 M. Galanter, ‘The Aborted Restoration of “Indigenous Law” in India’ (1972) 14 Comparative Studies in Society and History 53. 4 Ibid. 5 Galanter, ‘The Displacement of Traditional Law in Modern India’ 19.

India’s parallel justice systems 81 and official systems operate with state sanction and dominance, there has been an engagement with envisioning new forms of hybrid forums for dispute resolution in response to the structural deficits and deficiencies of state institutions as well as user constraints that limit access to justice. Non-State Justice Systems (NSJS) are defined in this chapter as those systems whose structures, values and procedures can be distinct from the state judicial systems. They may exist in relation to the state, or maybe hybrid forums, or they may also emerge independently based on custom, tradition, religion, etc. This chapter will first set out reasons for engaging with NSJS in the Indian context and the role they play in promoting access to justice. Second, a descriptive analysis of the structures and workings of four different forums for dispute settlement Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats will be undertaken. Third, through an examination of the challenges faced in each of these unique cases, an assessment is made regarding whether these forums operate in alignments with human rights standards. This will allow for the ability to unpack the rationale and limitations for the existence of multiple justice systems with distinct procedural and substantial dimensions within the framework of the Indian Constitution. Linking a human rights framework with NSJS emerges from a need to understand firstly whether human rights can be understood in the vernacular6 and secondly what can we learn about NSJS by using a human rights lens and are these lessons meaningful.

Engaging with non-state justice systems The implications of engaging with NSJS are profound and several. In analysing Rule of Law in operation, Hamoudi, while critiquing the position taken by Amnesty International that NSJS should be regulated or abolished if they do not adhere to international human rights law, stated that it would take a ‘mind colonized in the assumptions of legal centralism to presume that customary tribunals are so incorrigible, and State courts so capable of massive reform, that the only possible solution to abuses by the former is the exercise of control by the latter.’7 This intervention provides an insight into why it is necessary to introduce nuance when engaging with the multiplicity and plurality of NSJS. NSJS are a popular forum of choice in several countries and it is important to understand why it is seen to promote access to justice. The wide prevalence of NSJS is for several reasons. There is a considerable mistrust in the functioning of formal justice systems. There is a lack of understanding in terms of language, procedures and court structures employed, there is physical and financial inaccessibility, cultural

6 Sally Engle Merry and Peggy Levitt, ‘The Vernacularization of Women’s Human Rights’ Human Rights Futures, August 2017. 7 H. A. Hamoudi, ‘Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law’ in D. Marshall (ed), The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward (Harvard University Press, 2014).

82  Siddharth Peter de Souza incompatibility and, as a result, a lack of legitimacy in the functioning of these systems.8 All these factors in some ways or the other influence questions of access and in turn increase the legitimacy and authority of these forums. Understanding what ‘Access’ to a legal system entails requires examining the discursive nature of ‘Access’ as a term in itself. It can be spatial, symbolic, financial, linguistic, temporal,9 and, as Baxi argues, it is important to distinguish between ‘access’ to justice and access to ‘justice’.10 International organizations adopt the former, and place emphasis on understanding the different constituents of an idea of access. The United Nations Development Programme (UNDP) discusses this concept as the ‘ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards’,11 while the American Bar Association speaks in terms of how citizens use justice institutions to solve ‘common justice’ problems.12 An articulation of this concept as a procedural guarantee upon which other substantive rights are dependent is also seen in different international human rights instruments. These include Art. 8 Universal Declaration of Human Rights,13 Art. 7 (1) African Charter on Human and Peoples’ Rights,14 Art. 6 (1) European Convention on Human Rights15 and Art. 25 American Convention on Human Rights.16

 8 DFID, Non-State Justice and Security Systems (DFID Briefing, 2004); J Faundez, ‘Non-State Justice Systems in Latin America: Case Studies: Peru and Colombia’ (paper prepared for DFID workshop Working with Non-State Justice Systems, 2003).   9 U. Baxi, ‘Access, Development and Distributive Justice: Access Problems of the Rural Population’ (1976) 18 Journal of the Indian Law Institute 375. 10 P. Baxi, ‘Access to Justice and Rule-of-[Good] Law: The Cunning of Judicial Reform in India’ (2007) Working Paper Institute of Human Development Delhi. 11 UNDP, Programming for Justice: Access for All: A Practitioner’s Guide to Human RightsBased Approach to Access to Justice (UNDP, 2005). 12 American Bar Association, Access to Justice Assessment Manual: A Guide to Analysing Access to Justice for Civil Society Organizations (ABA, 2012). 13 Art. 8 UNGA Res 217 A (III) ‘Universal Declaration of Human Rights’ (10 December 1948) GAOR 3rd Session Part I Resolutions: ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’ 14 Art. 7 (1) African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (Banjul Charter): ‘Every individual shall have the right to have his cause heard. This comprises: The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) The right to be presumed innocent until proved guilty by a competent court or tribunal; (c) The right to defence, including the right to be defended by counsel of his choice; (d) The right to be tried within a reasonable time by an impartial court or tribunal.’ 15 Art. 6 (1) COE ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (European Convention on Human Rights): ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ 16 Art. 25 American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (Pact of San José): ‘(1) Everyone has the right to

India’s parallel justice systems 83 This conceptualization of the ‘Access to Justice’ discourse is important because the components of this concept such as language, methods and principles are also used to contribute to the popularity/favourability of NSJS. Understanding how access relations become institutionalized, Baxi argues, depends on a host of factors, including ‘types of parties involved, types of values/objectives pursued, respective resource base (class, status, power differentials) and the factors arising from the overall social structure and culture.’17 These questions of access are important to understand the relevance of NSJS. Many of these forums, show a deeper understanding of poor and vulnerable persons and deal with issues of ‘personal security and local crime; protection of land, property and livestock; and resolution of family and community disputes’.18 NSJS not only adjudicate on significant economic, personal and political matters but also employ methods that are culturally familiar, participative, and non-adversarial.19 They contain principles that guarantee the respect of collective interests by ensuring decisions are on the basis of consultation and that emphasize reconciliation and social harmony by ensuring a high degree of public participation.20 The cultural accessibility of these systems is also far higher because of the use of familiar language, and of values that make it less foreign and intimidating for the user.21 This signals a higher degree of social legitimacy and trust because people are able to actively relate to the context and situational uniqueness of certain problems. Coupled with a geographical accessibility, these systems are also significantly cheaper for the user.22 NSJS and plural legal orders however also pose significant challenges to a human rights regime. An important concern is related to the normative substance of alternative orders and the relation to universal standards. This is particularly with respect to concerns of gender bias, minority discrimination, procedural standards and elite capture where there are typically instances of deviation from international standards.23 In terms of procedure, more specifically, the challenge is concerned with whether ‘principles of uniformity, certainty, predictability, and equal application of the law’ are applied to ensure that like cases are treated alike24

simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the State concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.’ 17 Baxi, ‘Access, Development and Distributive Justice: Access Problems of the Rural Population’ 376. 18 DFID, Non-State Justice and Security Systems. 19 E. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute? (UNDP, 2006). 20 Ibid. 21 DFID, ‘Non-State Justice and Security Systems’ 21. 22 Ibid. 23 D. H. Isser, ‘The Problem with Problematizing Legal Pluralism’ in B. Z. Tamanaha, C. Sage and M. Woolcock (eds), Legal Pluralism and Development Policy – Scholars and Practitioners in Dialogue (Cambridge University Press, 2012). 24 Ibid.

84  Siddharth Peter de Souza and further the role of the State as a guarantor of human rights and an enforcer of standards on alterative legal orders. This aspect concerning the linkages between both systems, along with an illustrative account of the features and functioning of NSJS, will be dealt with later in this chapter. From this survey of the features of NSJS, what emerges is that most challenges in a dispute resolution process depend on a distribution of power between parties. As Gramatikov and Porter argue, it is not where the power originates – ‘economic, intellectual, physical or informational’, but how individuals respond and solve their problems.25 Understanding ‘Access to Justice’ in plural legal orders therefore requires an orienting that focuses on aspects of legal empowerment such as ‘the process of enhancing an individuals or groups capacity to make purposive choices and to transform those choices into desired actions and outcomes.’26 This perspective, in contradistinction to the more formalist approach of a procedural right to ‘Access to Justice’, presented earlier, places an emphasis on the ‘lack of power, opportunities and capacities’ that effect the manner in which the poor and marginalized person utilizes the legal system.27 It further discusses the manner in which these persons are able to increase the control that they can exercise over their lives which facilitate their agency.28I have previously also argued for legal empowerment and a capability approach to access to justice in NSJS. This I believe will allow for an approach and a focus on the user and beneficiary through everyday experiences how they can obtain a resolution that is just and fair.29 The World Bank ‘Justice for the Poor’ (J4P) project advances that it is essential that reform must be ‘grounded in social and cultural contexts, recognizes the importance of demand in building equitable justice systems, and understands justice as a cross-sectoral issue’.30 It seeks to build legal empowerment with a commitment to local realities where there is a need to examine diverse voices who can participate in the re-ordering of a society. Despite the challenges, however, not engaging with NSJS advances an inequitable and discriminatory approach that fails to recognize legal pluralism. It ignores the reasons why people choose to use the systems they use and it disregards the empirical evidence that shows that a move away from customary practices has

25 M. Gramatikov and R. Porter, ‘Yes I Can: Subjective Legal Empowerment’ (2011) 18 Georgetown Journal on Poverty Law & Policy 169. 26 R. Alsop, B. Mette, and J. Holland, Empowerment in Practice: From Analysis to Implementation (The International Bank for Reconstruction and Development/ World Bank, 2006). 27 Ineke Van De Meene and Benjamin Van Rooj, Access to Justice and Legal Empowerment: Making the Poor Central in Legal Development Co-operation (Leiden University Press, 2008). 28 S. Golub, ‘Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative’, Rule of Law Series, Democracy and Rule of Law Project, Carnegie Paper No. 41 (2003) 3. 29 S. P. de Souza, ‘Evaluating Access to Justice in Informal Justice Systems: A Suggestive Approach’ (2015) 19 Max Planck Yearbook of United Nations Law 469. 30 World Bank, ‘About Justice for the Poor’ (2011). Available at https://www.worldbank. org/en/topic/governance/brief/justice-for-the-poor (accessed 27 March 2019).

India’s parallel justice systems 85 been largely unsuccessful.31 It also perpetuates the notion that State systems are accessible to all and that NSJS are traditionally dangerous.32 In the next section of the paper I will begin with a descriptive analysis of Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats. Each of these four systems have unique characteristics in that they respond to different symbolic, spatial, procedural and cultural barriers that define ‘access’ to a justice system and yet also have overlapping features of being affordable, culturally familiar and more easily understood by persons who use it. This landscape is relevant to describe before analysing how human rights function in operation, because it will give us a context for how parallel justice systems function in the Indian context.

Forums, compositions and procedures Lok Adalats Lok Adalats are forums of alternative dispute resolution systems that were established to ensure that economic, organizational and procedural constraints were not grounds for the denial of access to justice.33 The vernacular meaning of ‘Lok’ translates into people while ‘Adalat’ means the court. A primary feature of these courts is that they place importance on facilitating participation, voluntariness, efficiency and simplicity in the dispute resolution process.34 Through the emphasis on informality, petitioners could explain their problem, mediators could intervene at any point, as could the opposing party, and issues could be clarified to ensure a fair settlement.35 The judge (serving or retired judicial officers or other officers who are required to have qualifications prescribed by the Chief Justice of India and the Central Government) is responsible for clarifying the law and explaining to parties how best they could benefit from different settlements.36 The ‘Lok Adalats’ were institutionalized and given statutory status under the Legal Services Authorities Act 1987.37 This legislation was enacted in pursuance of Article 39-A of the Constitution of India38 which mandated that equal justice and free legal aid must be ensured for all citizens in order that opportunities for securing justice were not denied on account of any disabilities, economic

31 L. Chirayath, C. Sage, and M. Woolcock, ‘Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems’ (2005) World Bank Background Paper-World Development Report: Equity and Development. 32 Ibid. 33 T. Zainulbhai, ‘Justice for All: Improving the Lok Adalat System in India’ (2016) 35 Fordham International Law Journal 248. 34 Ibid. 35 S. Sidhva, ‘Lok Adalats: Quick, Informal Nyaya’ (1986) Lex Et Juris 38. 36 Ibid. 37 The Legal Services Authorities Act 1987 (No. 39 of 1987). 38 Article 39-A, The Constitution of India 1947.

86  Siddharth Peter de Souza or otherwise.39 The Act allowed states in India to organize Lok Adalats as they sought fit.40 It also allowed the Lok Adalats to ‘determine and to arrive at a compromise or settlement between the parties to a dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organized’.41 When cases are transferred to the Lok Adalats, they are required to be heard with ‘utmost expedition’ and guided by principles of ‘justice, equity, fair-play and other legal principles’ to arrive at a compromise or settlement.42 These forums are presided typically by a retired judicial member with other members, as specified by the Legal Services Committee of the District/ State/Centre. However, if no remedy is achieved, the dispute is returned back to the Court.43 The award of the Lok Adalat has the status of a decree of a ‘civil court’. It is also final and binding on all parties and no appeal can lie against the award.44 After a recent amendment, Lok Adalats now also include provisions for compulsory pre-litigation, mediation and conciliation when it concerns matters connected with public utility services such as transport, postal services, power, etc.45

Gram Nyayalayas The Law Commission of India first proposed the establishment of Gram Nyayalayas in its 114th report with the stated objective to provide frameworks for participatory justice in response to a legal system adopted from the British which was alienating because of its ‘foreign origin, technicality, extreme formalism, rigid rules of procedure, and relevance and foreign language.’46 It was argued that existing legal frameworks were not meaningful to many who used the system and that there was a need to develop justice at the grassroots level acknowledging that disputes were not only dissimilar and spanned different social and cultural contexts but also required different forums for dispute resolution.47 The Gram Nyayalayas were established under the Gram Nyayalayas Act 2008, with the purpose of providing access to justice to citizens ‘at their doorsteps’, ensuring that opportunities to secure justice were not denied on the basis of ‘social, economic,

39 Article 39A, Equal justice and free legal aid. ‘The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities’. 40 Section 19 (1), The Legal Services Authorities Act, 1987. 41 Section 19 (5), Ibid. 42 Section 20 (3), Ibid. 43 Section 20 (6), Ibid. 44 Section 21, Ibid. 45 Section 22 A, 22B, Ibid. 46 Law Commission of India, 114th ‘Report of the Judicial Administration’ 7. 47 Ibid.

India’s parallel justice systems 87 or other disabilities’.48 The purpose of establishing these courts which roughly translate into those at the level of the village are primarily because of two reasons, firstly to make justice more accessible to those who lived in rural India,49 and secondly because there was a need to reduce the pendency and backlog of cases.50 These forums are established by the state governments, in consultation with the High Court, at the Panchayat (local government) level51 and would appoint a Nyayadhikari or presiding officer who would have to have to be a Judicial Magistrate of the first class.52 The jurisdiction of these forums is also extended to both civil and criminal matters notwithstanding provisions of the Civil Procedure Code and the Criminal Procedure Code.53 In civil cases proceedings will be guided by principles of natural justice.54 In criminal cases it will be summary in nature.55 The proceedings would also take place in the official language of the state other than English,56 and there would be a relaxation of provisions of the Indian Evidence Act.57 The Act also limits the possibility of appeal in both civil and criminal cases.58As compared to Lok Adalats, however, there is no absolute bar on appeals. There are, however, some distinction in the Act and the Law Commission of India report, which first advocated such court structures. Bail submits firstly that the Act prescribed a departure from the stress laid on having lay adjudicators and instead mandated Judicial Magistrates of the first class, he also added that with no bar on legal representation, meant that these forums would embrace a more professionalized form of dispute resolution.59 Further in terms of procedure, despite departing from the main procedural codes, there were still substantial similarities in the procedure, which was at odds with the Law Commission’s focus on ensuring simplified procedures.60

48 Preamble, The Gram Nyayalayas Act 2008, (No. 4 of 2009). 49 K. G. Balakrishnan, ‘Law Day Address to the Nation’ (2009) The Hindu. Available at www. thehindu.com/multimedia/archive/00014/Address_by_the_Chief_14335a.pdf (accessed 27 March 2019). 50 Vasudha Nagraj, ‘The Gram Nyayalaya: The New Face of the Judiciary’ (2011) Law and Other Things. Available at http://lawandotherthings.blogspot.fr/2010/11/gram-nyaya laya-new-face-of-judiciary.html (accessed 27 March 2019). 51 Section 3, The Gram Nyayalayas Act 2008. 52 Section 4, Ibid. 53 Section 11, Ibid. 54 Section 24, Ibid. 55 Section 19, Ibid. 56 Section 29, Ibid. 57 Section 30, Ibid. 58 Section 33 for the provisions of appeals in criminal cases and section 34 for civil cases. Ibid. 59 S. Bail, ‘From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice’ (2015) 11 Socio- Legal Review 83. 60 Ibid.

88  Siddharth Peter de Souza

Nari Adalats Nari Adalats, or ‘women courts’, include a diverse category of dispute resolution systems that specifically deal with issues related to marital and family disputes through mediation and counselling, they are envisaged as forums for women and by women.61 These forums are known by different names including mahila panchayat (women’s circle), mahila mandal (women’s council), and mahila (or nari) adalat (women’s court). In this chapter the term Nari Adalat will be used. These are established to provide spaces, which are conciliatory, non-adversarial and informal, to poor persons, in particular to victims of violence and are set up and run by women who have experience in working on gender issues.62 They are intended to serve as safe spaces where women have access to justice, without being confronted with intimidating authority and procedures.63 They are also meant to be affordable, speedy and free from patriarchal bias and where women are allowed to discuss and seek redressal of grievances that are connected with domestic violence and other oppressive practices within families and communities.64 Through using local social-cultural practices, these forums attempt to educate community members to break discriminatory practices that exist against women, in the hope of furthering the cause of gender-based justice.65 Each case encourages mediation and negotiation and in many instances the forums provide psychological support and counselling to the women throughout the dispute resolution process.66 According to UNDP, almost 89% of the cases brought before the Nari Adalats are those where women have been beaten, physically and psychologically abused, and harassed in their marital homes.67 The underlying purpose of these forums is to derive a solution.68 The UNDP study also showed that among the key features that have contributed to the success of the forum is that there is a shared gender identity between the judge and the party which creates a more comfortable environment, a high sense of control in terms of cost, time and venue and no obvious

61 S. Vatuk, ‘The “Women’s Court” in India: An Alternative Dispute Resolution Body for Women in Distress’ (2013) 45 Journal of Legal Pluralism and Unofficial Law 76. 62 S. Purushothaman, ‘The Nari Adalat: A Grassroots Response to Violence and Injustice Against Women’ (Best Practices Foundation 2011). Available at www.scribd.com/ doc/46548997/Nari-Adalat-Combating-Violence-Against-Women-Best-Practices-inMahila-Samakhya-Chapter-5 (accessed 27 March 2019). 63 Ibid. 64 Ibid. 65 S. Kethineni, M. Srinivasan, and S. Kakar, ‘Combating Violence Against Women in India: Nari Adalats and Gender- Based Justice’ (2016) 20 Women and Criminal Justice 1. 66 Ibid. 67 S. Iyengar, ‘The Interface Between Formal and Informal Systems of Justice: A Study of Nari Adalats and Caste Panchayats in Gujarat State, India’ in UNDP (ed), Towards Inclusive Governance: Promoting the Participation of Disadvantaged Groups in Asia-Pacific (UNDP, 2007). 68 Ibid.

India’s parallel justice systems 89 hierarchies, even though it was found that Nari Adalats refrained from fundamentally challenging or questioning basic caste, religion or class structures.69

Khap Panchayats Khap Panchayats are traditional dispute resolution systems that are engaged primarily in adjudicating upon marital disputes on concepts of brotherhood, within and outside a clan (khap).70 These institutions are without constitutional basis and are on the basis of territorial area with the leaders, usually all male, who are traditionally from a dominant caste who end up adjudicating on a variety of issues.71 As self-appointed custodians of the local culture, they use principles arguably important to rural life,72 including the idea of aikya (unity), izzat (honour), biradri (community) and bhaichara (brotherhood) to determine public morality through self-created norms and sanctions.73 They determine narratives based on social norms considered sacrosanct and are able to garner community support and legitimacy from law enforcement agencies.74 These forums derive their strength from feelings of kinship and the continued belief of a common ancestry, the existence of strong ties in the village and the presence of village institutions for resolving disputes such as the ghwand panchayat which allow these forums to mobilize support.75 Khap Panchayats have gained notoriety for sanctioning and enforcing killings of couples who marry from the same clan. These couples are believed to have brought dishonour to their families and to the clan. Through their rulings, these forums legitimize their own cultural values and impose them on the community.

Linkages and relations to the state As outlined at the start of the paper, NSJS emerge from different traditions, customs, values and engagements with the state. The relationship with the state can depend on a variety of reasons. Forsyth identifies some general points that define such relationships.76 These include the manner in which the state recognizes the NSJS and inspires degrees of formality, the second is when the state lends its coercive power, allowing the NSJS to

69 Ibid. 70 G. S. Rajpurohit and A. Prakash, ‘Khap Panchayat in India: Legitimacy, Reality and Reforms’ (2015) 2 International Journal of Allied Practice, Research and Review 81. 71 Ibid. 72 B. Yadav, ‘Khap Panchayats: Stealing Freedom?’ (2009) 44 Economic and Political Weekly 16. 73 Ibid. 74 R. Kaur, ‘Khap Panchayats, Sex Ratio and Female Agency’ (2010) 54 Economic and Political Weekly 14. 75 R. Singh, ‘The Need to Tame the Khap’ (2010) 45 Economic and Political Weekly 17. 76 M. Forsyth, ‘A Typology of Relationships Between State and Non- State Justice Systems’ (2007) 56 Journal of Legal Pluralism and Unofficial Law 67.

90  Siddharth Peter de Souza enforce its decisions, and the third is capacity for co-existence between the two legal systems, which, is determined by the level of acknowledgement offered by the state to NSJS. Forsyth offers a spectrum of typologies where at one end there is total repression by the state of the NSJS and at the other end there is total incorporation. In this chapter, these forums described previously appear at different levels of the spectrum. Understanding what is an optimum relationship with the state requires that the context and legitimacy of these systems must be explored. In certain instances, greater dialogue between both systems may result in better regulation and adherence to human rights standards, but equally without attempting to achieve a balance, there is always a worry that there might be a hegemonization by the state of the NSJS.77 From the four models, described earlier, it is interesting to note that none of them are mutually exclusive from the state but instead each display some degree of interaction with the state system. These relationships have distinct political undertones. As Isser argues, it is important to examine what kind of balance would best reflect the interest and values of the state, in what cases would there be an overriding jurisdiction of the state, how would collective rights of ethnic, indigenous and religious groups be balanced against individual rights and to what extent should justice be uniform and not pluralistic.78 In the case of the Lok Adalats and Gram Nyayalayas, both forums have been operationalized through legislation, whereas the latter is meant to function as the lowest court at the level of the village, the former has a larger mandate and can operate at different tiers of the legal hierarchy. Both systems, however, function at the spectrum that is tending towards formality where there is state recognition, acceptability and coercive force but where there continues to be a crossfertilization of procedures. These systems show a commitment to an underlying constitutional framework and derive their value and legitimacy from ideals propounded in that document. This is demonstrated by the fact that both forums are initiatives driven by the need to fulfil constitutional promises of access to justice and legal aid. The Nari Adalats offer an example of systems that operate with formal recognition and yet are given substantial freedoms to establish their own procedures and remedies because of the emphasis on creating a space that is acceptable and comfortable for individuals to find a solution. These forums would occupy a space in between the continuum and would encourage co-existence and independence with an over-arching framework to ensure accountability and compliance with meeting a pre-decided goal, in this case gender justice. The Khap Panchayat is an exercise in informality. This forum has no formal recognition by the state but still has a degree of tacit acceptance from law enforcement agencies that allow it to function. These systems have norms, procedures and remedies and operate on the instances of the elders of the village and

77 Wojkowska, Doing Justice, 25. 78 Isser, ‘The Problem with Problematizing Legal Pluralism’ 246.

India’s parallel justice systems 91 community. In this particular case, what is interesting to note is that the sociopolitical capital exercised by these forums, that allow them to continue to have legitimacy, is derived from the community despite espousing values antithetical to a constitutional framework. In these situations, questions of cultural competence and local acceptance are used as arguments against working towards abolishing or repressing such systems.

Human rights standards and non- state justice systems: an assessment framework A ‘High-level Meeting of the General Assembly on the Rule of Law’ made special mention of NSJS where the declaration stated that ‘when in accordance with international human rights law, (NSJS) play a positive role in dispute resolution, and that everyone, particularly women and those belonging to vulnerable groups, should enjoy full and equal access to these justice mechanisms’.79 This declaration was significant while also qualified because it offered recognition of the value of NSJS, but yet qualified this to operate within a language of human rights. This section examines ways to think about NSJS through a human rights lens. It does so particularly because there are many aspects that are intrinsic to the human rights canon that when vernacularized, can find resonance in the everyday practice of law beyond the state. When human rights and NSJS interact, at a macro level, the focus is on the jurisdictional limitations, aspects of hierarchy, and the interaction and regulation between legal frameworks.80 However, at a micro level, the focus aims to fix and re-engineer legal orders to ensure that they comply with the model of international human rights.81 Human rights as a lens, however, can operate on different levels; it can be used as standards which determine the benchmarks for NSJS; it can be used to bind particular practices; or it can be used in their vernacular to understand how they materialize in the everyday practice of NSJS. Human rights can become binding on NSJS through different ways.82 By establishing a strong linkage through incorporation or recognition of NSJS by the state, there is a responsibility on the state to ensure minimum standards are adhered to in NSJS. These standards can also become binding by applying the principle of a horizontal application of human rights. This principle implies that human rights are not just limited to the state institutions but because they are incorporated as basic principles of the legal order, they also apply to private

79 UNGA Res 67/1 ‘Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels’ (24 September 2012) 3rd Plenary Session. 80 Isser, ‘The Problem with Problematizing Legal Pluralism’ 239–240. 81 Ibid. 82 UNDP, UNICEF, and UN Women, Informal Justice Systems: Charting a Course for Human Rights Engagement (UNDP, UNICEF, UN Women, 2012) 88.

92  Siddharth Peter de Souza individuals, bodies or corporations.83 A further mechanism that could be used to ensure human rights standards is when the state addresses its duty to protect its citizens as established in Article 2(1) of the ICCPR against violations, of their rights. Using this approach, the state can address harmful practices in NSJS and develop steps to suppress and abolish them.84 In guidelines provided for human rights advocates who engage with NSJS, the International Council on Human Rights Policy (ICHRP) in its report states that people are bearers of both rights and culture and the problem of balancing rights can be transcended by: (a) adopting an intersectional approach to identity; (b) seeing culture, custom, tradition and religion as changing, internally diverse and contested; and (c) using a situated analysis that regards rights-holders as simultaneously individuals and members of multiple collectives.85 These guidelines have informed the framework presented in the report and the key issues for a human rights–based inquiry are identified as follows:86 • • • •

• •

Is the content and structure of the plural legal order assessed in an inclusive and participatory manner? Have financial, human, technological resource issues been considered carefully? Do substantial content in terms of rules, laws, punishment and remedies imbibe clarity, coherence, proportionality and non-discrimination? Does clarity on jurisdiction, subject matter, territory, appellate processes enhance human rights? Do procedural matters such as participation, coherence, accessibility protect the user? Do adequate ex ante rights protections exist? Are there provisions for post facto safeguards as well? Is the larger context conducive to encouraging a rights-based approach to a plural legal order?

These elements also find resonance in the work by UNDP, UNICEF and UN Women who in a recent report framed NSJS in terms of human rights by proposing three dimensions of justice – structural, procedural and substantive. The structural dimensions were connected to aspects of participation and accountability, the procedural dimensions consisted of impartial and non-arbitrary guidance

83 Ibid. 84 Art. 2(1), International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 85 International Council on Human Rights Policy (ICHRP), When Legal Worlds Overlap Human Rights, State and Non-State Law (Geneva, Switzerland, 2009). Available at SSRN: https://ssrn.com/abstract=1551229. 86 Ibid, 149–152.

India’s parallel justice systems 93 through the adjudication processes, and the substantive dimension consisted of the substantive protections afforded to vulnerable persons.87 Identifying a framework through which human rights can be assessed in NSJS will allow for an operationalization of positions such as ‘compliance with human rights’ or ‘understanding local specificities’.88 This exercise will encourage an examination of the mechanism for rights protection afforded by NSJS and will attempt to address reasons for arguments surrounding inconsistency with human rights standards, implicit gender bias and elite capture in the functioning of these systems. In the context of this chapter, certain basic principles for a human rights engagement can be ascertained from the frameworks presented previously. These include: • Participation, where there is greater awareness of procedures, acceptance of rules and capacity to be heard and understood. • Accountability, wherein there are methods for regulation, transparency and monitoring of NSJS • Fairness, where there is little scope for arbitrariness and where there is coherence and clarity in application of rules in NSJS • Accessibility, regardless of cost, geography and socio-economic background in NSJS • Protection, in terms of individual rights with an emphasis on safety and security in NSJS. These standards keep in mind the conclusions drawn previously, of understanding access to justice from the perspective of the user, examining what are the constitutive elements in the path to access to justice, what are the unique conditions to a NSJS and finally how these elements contribute to addressing the problem of attaining justice. In the next section, these standards will be used to examine how human rights are met in Lok Adalats, Gram Nyayalayas, Nari Adalats and Khap Panchayats by matching the experiences with the criteria identified.

Human rights in operation in non-state justice systems: experiences from India Lok Adalats The former Chief Justice of India in a speech in 2015 extolled Lok Adalats for their ability to relieve the judiciary of a huge burden of cases and stated that ‘as on 30 September (2015), a total of more than 15.14 lakh (1.514 million) Lok Adalats have been organized in the country and 8.25 crore (82.5 million) cases,

87 UNDP et al., Informal Justice Systems. 88 ICHRP, ‘When Legal Worlds Overlap’ 145.

94  Siddharth Peter de Souza including cases pending in the courts as well as those in the pre-litigation stage, have been settled in these Lok Adalats’.89 These forums, the judge argued, have played an instrumental role not only in reducing pendency but also in allowing the poor and marginalized the opportunity to take on the might of the state.90 These figures make for impressive reading. They indicate that Lok Adalats have contributed to the dispensation of justice and in particular have added access for those who cannot afford the opportunity costs, time and other access constraints that are associated with the formal justice system. The efficiency of these forums indicate that they have increased accessibility, a key criteria in the framework identified previously. However, there is a need to disassociate the narrative around the numbers in order to understand whether this translates into improved fairness, accountability and protection for an individual’s rights.91 Lok Adalats are accused of pushing parties to settlement because of the ‘political power in positive statistics’92 and in many instances cases are sent to the Lok Adalats even though they should be tried by the formal court system.93 In order to reduce pendency and case backlog, the trade-off between procedural and substantive justice must be equally evaluated in order to ensure that there is no discounted justice or a compromise on fairness.94 Lok Adalats which are designed through the state legal aid programs have been criticized for using these programs to encourage mainly poor persons, usually women, members of economically and socially backward groups, and small landowners to avail of these facilities.95 Through arguments of efficiency and accessibility and what Whitson’s argues are ‘politically powerful elite’s presumptions about the poor and oppressed’,96 these forums have become not instances of innovation of court reform but instead species of legal aid.97 In their seminal work on Lok Adalats, Galanter and Krishnan argue that the benefit conferred by Lok Adalats are by virtue of saving on the huge transaction costs in the formal justice system, which include litigation expenses like lawyer fees, court fees and bribes, the uncertainty around outcome and the costs and

89 First Post, ‘Lok Adalats Support the Poor in Fight Against Govt, Says SC Justice TS Thakur’ (2015). Available at www.firstpost.com/india/lok-adalats-support-the-poor-in-fightagainst-govt-says-sc-justice-ts-thakur-2501138.html (accessed 27 March 2019). 90 Ibid. 91 S. Bail and S Kotte, ‘Gram Nyayalayas and Access to Justice in India’ (2014) Draft paper. 92 Zainulbhai, ‘Justice for All’ 266. 93 Ibid. 94 M. Galanter and J. Krishnan, ‘Debased Informalism: Lok Adalats and Legal Rights in Modern India’ in E. G, Jensen and T. C. Heller (eds), Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford University Press, 2003). 95 S. L. Whitson, ‘Neither Fish, Nor Flesh Nor Good Herring’ Lok Adalats: An Experiment in Informal Dispute Resolution in India’ (1992) 15 Hastings International and Comparative Law Review 391. 96 Ibid. 97 M. Galanter and J. Krishnan, ‘Bread for the Poor: Access to Justice and the Rights of the Needy in India’ (2004) 55 Hastings Law Journal 789.

India’s parallel justice systems 95 uncertainty to execute a decision.98 These alternatives are credited to be better than courts, but in fact are not very good in themselves. Galanter and Krishnan submit that Lok Adalats are an example ‘of a debased informalism – debased because it is commended not by the virtues of the alternative process but by avoidance of the torments of the formal institutional process’.99 The reluctance to use Lok Adalats is also indicated by the fact that the cases before them are often matters considered to be smaller cases because these forums are not able to attract those cases which have high financial stakes or involve important litigation.100 This segregation of cases, and the use of alternative dispute resolution forums for petty and smaller cases, indicate that courts only serve corporate interests and those who do not have to make a compromise between efficiency and justice.101 One such compromise, affected in the interest of efficiency, is that there is no provision for appeal for Lok Adalats. This provision not only has implications for the individual rights of the users who must accept decisions with finality but also for the accountability of the forum where there is no opportunity to question decisions and challenge them. Such a compromise would be non-negotiable for those who have the capacity to afford the transaction costs of the formal system. To further this aspect of accountability and fairness another allied argument is that, despite preaching informality, the Lok Adalats retain strong elements of professionalization, included through the legislative framework. The result of this professionalization is that these forums are now dependent on the quality, integrity and fairness of the judge and lawyer which varies across the board to facilitate conciliation rather than on the institutional mechanism set within the Lok Adalat.102 By placing greater emphasis on individual actors in the dispute resolution process there is now a greater risk for arbitrariness and unpredictability in the outcome because the degree of knowledge, level of investment and understanding that the judge has of local issues and contexts will be critical. In addition, it will also depend on nature of interaction between the judge and the lawyer and whether they can work together transparently and efficiently.103 In situations where there is a lack of trust, it could contribute instead to a stalemate and accentuate the adversarial nature of the proceedings. In this analysis a clear theme emerges: while aspects of participation and elements of accessibility have both been enhanced, through creating court procedures which are quicker, more understandable, dialogical, and cost effective, in terms of substantive protections, and the individual’s right to access to justice, these systems remain a work in progress, because not only are they presumed to

 98 Ibid, 809.  99 Ibid. 100 Ibid, 800. 101 Whitson, ‘Neither Fish, Nor Flesh Nor Good Herring’ Lok Adalats’ 441. 102 See generally: Zainulbhai, ‘Justice for All’ 261–262. 103 Ibid.

96  Siddharth Peter de Souza be forums for those who require legal aid, they also present a discounted form of justice by affecting procedural compromises in the dispute resolution process.

Gram Nyayalayas The Gram Nyayalayas were given statutory status through legislation in 2008 and, as mentioned previously, their purpose is to provide affordable and accessible justice to persons in rural India. While these systems are still new, studies have shown that there are challenges to the manner in which they have been constructed. In one of the earlier studies on the Act,104 Guruswamy and Singh argued that the schema was designed in a manner that would result in the unjust exclusion of poor and marginalized persons. The Act, despite dealing with a wide range of issues, such as minimum wages, protection of civil rights, protection of women from domestic violence, etc., did not provide adequate procedural safeguards. This despite the fact that many issues adjudicated by these forums required careful scrutiny because of their delicateness and sensitivity. Secondly the right to appeal was largely circumscribed in civil matters and completely barred in criminal matters displaying thereby a compromise on proper procedure in favour of efficiency. In criminal cases, a summary procedure was followed which was contrary to the Code of Criminal Procedure that is followed in formal justice institutions. Even procedures which were to be conducted in the ‘interest of justice’ were given a caveat which allowed for less rigour and a lower threshold by stating that such standards should be maintained only ‘as far as practicable’.105 With respect to civil cases, despite the Gram Nyayalayas having the decree of a civil court, the procedure itself wasn’t that of a civil court but of principles of natural justice. These instances demonstrate that while goals of both increased accessibility and participation are addressed through procedural changes that attempt to make the dispute resolution process more efficient and less cumbersome, there have been compromises affected which have implications for substantive justice. As with Lok Adalats, the lack of a full right to appeal has implications for the individual’s right to ensure a fair trial but equally for the accountability and answerability of the Gram Nyayalayas. A recourse to principles of natural justice, in instances where decrees still have the sanction of a civil court and summary procedures in criminal cases, is another example of discounted justice where efficiency compromises on rigour and quality. While it is undoubtedly too early yet to make particular observations without strong empirical research, the enthusiasm for facilitating both participation and access, has resulted in less attention being paid to essential conditions that would ensure fairness and the protection of individual rights. Guruswamy and Singh

104 M. Guruswamy and A Singh, ‘Accessing Injustice: The Gram Nyayalayas Act 2008’ (2010) 54 Economic and Political Weekly 16. 105 Ibid, 18.

India’s parallel justice systems 97 argue that the Act ‘makes a mockery of that which is most sacred to all law – that power, resources and the quantum of private gain will not determine the aims or means of the process that is adjudication’.106 In a response from the Government of India to a question in Parliament on the setting up of these court structures, it was indicated that a very lukewarm response was received from States with only 194 forums notified and only 159 forums operationalized.107 In a recent study which examines access questions in Gram Nyayalayas it was found that on two key issues, namely, geographical access, wherein the study argues it hasn’t made sufficient inroads and much depends on the seriousness of the state’s intent and, on the aspect of legal representation, it was found that lawyers did not find the viability in the process, economically and logistically, and therefore despite trying to create a court like professionalized formal atmosphere, many parties in criminal natters had to personally ‘show up, plead guilty and pay a fine.’108 The study of these forums, which have ostensibly been created to build participation, fairness and protection of individual rights to enhance access to justice, require deeper investigations, not just because they are new innovations dating back to the late 2000s, but because in the absence of hard evidence and a lukewarm response by the state governments the true impact cannot be conclusively stated. Further, in contrast to Lok Adalats which place an emphasis on conciliation, the adversarial nature of these proceedings coupled with some procedural relaxations, pose the interesting question about which hybrid forum of dispute resolution works better and, importantly, can such a forum meet human rights requirements to secure results.

Nari Adalats Nari Adalats were established to provide forums for women to access justice in a safe, secure and comfortable environment. In a study on the functioning of these systems, Kethineni et al. submitted that their empirical work showed that these forums provided spaces for peaceful resolution coupled with moral, emotional and psychological support.109 These forums enabled victims to speak out, empowered them to make their grievances known, and allowed them to attain justice in a ‘generally bias free environment’ where it was found that most cases were ‘amicably resolved’.110 There was also a clear emphasis on building participation and protection to members who used such forums.111 Despite cases being

106 Ibid, 19. 107 S. Gowda, ‘Gram Nyayalayas’ (2015) Ministry of Law and Justice, Government of India, Press Information Bureau. Available at http://pib.nic.in/newsite/PrintRelease. aspx?relid=116631 (accessed 27 March 2019). 108 Bail and Kotte, ‘Gram Nyayalayas and Access to Justice in India’ 18. 109 Ibid. 110 Kethineni, Srinivasan, and Kakar, ‘Combating Violence against Women in India’ 18. 111 Ibid.

98  Siddharth Peter de Souza on sensitive issues such as domestic violence, property disputes, bigamy, these forums have empowered women to not only speak without being intimidated but also to provide assurance that the community will hear their views.112 The decisions of the Nari Adalat do not have the backing of the formal state, and their approach lays emphasis on reconciliation and aim to prioritise principles of social justice rather than dogmatic procedure.113 These forums encourage women and peer groups to suggest solutions taking into consideration the cultural context and there is an emphasis, as far as possible, to mend relations and homes.114 Merry argues that Nari Adalats have not only changed patterns of legal mobilization, they have also changed legal culture, as a result there is a new understanding of the woman’s role in marriage, inheritance of property and importantly a ‘new cultural view’ regarding the role of women and the responsibility of legal institutions to articulate such views.115 From this analysis it is clear that the Nari Adalats perform a significant function in improving participation, accessibility and protection for the individual, by creating safe, affordable and approachable spaces. However, these forums are not without their difficulties,116 including that the informality of Nari Adalats have also meant constraints including the lack of formal legal documentation and recording of decisions which has resulted in administrative difficulties. These inefficiencies coupled with the inability of adjudicators to comprehend legal documents and intricacies have made decisions vulnerable and susceptible to challenge. The lack of formality in the above instances has implications for fairness and accountability because there are no mechanisms for regulation in place to ensure predictability and non-arbitrariness of decisions. A further challenge is that because these forums use a volunteer-based model, there is uncertainty and instability that challenges the structure and legitimacy of such systems.

Khap Panchayats Khap Panchayats have attained notoriety for making moral judgments and prescribing extra-legal punishments on personal matters of individuals, predominantly related to inter-caste marital relations. These forums prescribe judgments that are often coupled with violent forms of enforcement and lend an extra judicial character to their functioning. As a result, individual rights are largely compromised, not protected, and are seen subservient to that of the majority.

112 Ibid. 113 Vatuk, ‘The “Women’s Court” in India’ 95. 114 Ibid. 115 S. E. Merry, ‘Legal Pluralism and Legal Culture’ in B. Z. Tamanaha, C. Sage, and M. Woolcock (eds), Legal Pluralism and Development Policy – Scholars and Practitioners in Dialogue (Cambridge University Press, 2012). 116 Iyengar, ‘The Interface Between Formal and Informal Systems of Justice’ 102.

India’s parallel justice systems 99 The Supreme Court of India has noted Khap panchayats (known as kata panchayat in Tamil Nadu) often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. It is wholly illegal and has to be ruthlessly stamped out . . . there is nothing honorable in honour killings or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality.117 Khap Panchayats reflect a deep elite capture and gender bias that permeates through the system; as they are generally dominated by powerful elements of the dominant caste, they are not participatory and the elders of the community presume that they can become ‘upholders of village norms, custodians of rural culture and guardians of public morality’.118 There is also co-option by politicians who see them as key players in election cycles: some politicians have argued that they serve a ‘social and cultural’ purpose while others have said they are like NGOs.119 As a result, in many instances, they are not held accountable for their actions. The Law Commission of India has proposed legislative reform to curb the functioning of Khap Panchayats. This includes a legislative provision that prohibits the unlawful assembly of persons who gather to condemn a marriage on the basis of caste or community. It stated that the ‘intention to deliberate on, or condemn any marriage, not prohibited by law, on the basis that such marriage has dishonoured the caste or community tradition or brought disrepute to all or any of the persons forming part of the assembly or the family of the people of the locality concerned’ must be prohibited.120 In a second proposal in order to tackle the menace of honour killings under the Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act, 2011, the Commission stated that the endangerment of life and liberty meant, and should include, any manner of acts of threat, encouragement, commending, exhorting and creating an environment whereby loss of life and liberty is imminent. Such endangerment of life and liberty was also meant to include

117 ‘Supreme Court of India, ‘Arumugam Servai v State of Tamil Nadu’ Criminal Appeal No. 958 of 2011. 118 Yadav, ‘Khap Panchayats’ 18. 119 C. S. Dogra, ‘Retrograde Avatar of Repressive Traditions’, (2014) The Hindu. Available at www.thehindu.com/opinion/op-ed/retrograde-avatar-of-repressive-traditions/article 5674489.ece (accessed 27 March 2019). 120 Law Commission of India, ‘The Prohibition of Unlawful Assembly (Interference with Freedom of Matrimonial Alliances Bill’ (Law Commission of India, 2011).

100  Siddharth Peter de Souza enforcement of measures such as ‘social boycott, deprivation of the means of livelihood, denial of facilities and services’ and also by compelling, whether directly or indirectly, persons ‘to leave or abandon their homestead in the locality,’121 it was also found to be unlawful if persons were to gather with the intention to deliberate, declare or condemn marriages in the locality concerned. These responses of formal institutions of government indicate that a balancing act is necessary. The Supreme Court of India and the Commission have adopted distinctive approaches, with the Court being categorical in its assertions about the illegality of such forums and the Commission taking a nuanced approach by looking at the procedural strategies to constrain the functioning of these systems. However, neither of these approaches will hold any ground without political will, and these forums will continue to have legitimacy among the community.

Lessons on human rights in practice in NSJS In the experiences drawn from these four models, and reflecting on the human rights standards of participation, accountability, fairness, accessibility and protection, it is interesting to note how the different systems function to produce access to justice. These performances are influenced by their interaction with the state, their procedural, substantive and normative standards, and their different typologies. The existence of a legislative framework for Lok Adalats and Gram Nyayalayas ensure that they maintain certain minimum protections and the respect-protect and fulfil framework of human rights is guaranteed in some ways. Having elements of state oversight has ensured that there isn’t disregard for constitutional principles which is seen in structures like the Khap Panchayats. The linkages with the state show benefits but there are also complexities especially when culture is an important constituent factor. This is seen in the fact that despite the Supreme Court of India calling Khap Panchayats ‘illegal’, the deeply embedded nature of these systems in the socio-political consciousness of the territory has made it difficult to garner sufficient political will to address apparent human rights abuses. From these different models, the Nari Adalats are an important example of focusing on the beneficiary and having a clear agenda. Through identifying women empowerment as an objective, these forums have examined different aspects of the access to justice process from legal protection, legal awareness, legal aid and counsel, adjudication, to enforcement and civil society monitoring. The clear identification of a justice problem, the socio-political and cultural realities that affect it, and the technical and political interventions needed, are what contribute to its success. These are lessons that have evolved through the recalibration of Rule of Law reform from a focus on institutional efficiency and effectiveness to a beneficiary perspective putting users at the core. Whereas the

121 Law Commission of India, ‘The Endangerment of Life and Liberty (Protection, Prosecution and Other Measures Act)’ (Law Commission of India, 2011).

India’s parallel justice systems 101 Lok Adalats and Gram Nyayalayas are examples of the former approach, the Nari Adalats and the recent approach of the Law Commission with respect to Khap Panchayats are examples of the latter. The suggestions by the Law Commission on Khap Panchayats have identified aspects of social boycott, deprivation of livelihood, and unlawful assembly, as key bottlenecks that stymie the process of justice delivery. They have attempted to address different elements of a path to justice for a user in a Khap Panchayat in order to ensure greater access to justice. These different experiences show that there is a requirement to embrace elements of access to justice from a demand approach, by understanding the problem of what actually works in these contexts rather than what should work. These experiences highlight the inter-twining between technical and political considerations and the need for both to be addressed in order to ensure that solutions are sustainable in context.

Conclusion This chapter has attempted to map the landscape of the discussion on the existence of plural legal orders, the challenges of engaging with NSJS and the function of human rights standards in operation in NSJS. Through a discussion of different experiences from India, the chapter has examined how strategies for reform have been innovated and tested. While some have adopted a top-down approach focusing on tackling institutional barriers to justice such as in the case of Lok Adalats, others like the Nari Adalat have focused squarely on the experience of the user and the challenges faced by them in obtaining access to justice. In advocating for understanding human rights not as an arrangement of institutions and their functioning but as a realization of experiences122 this chapter demonstrates that even when operationalizing a human rights approach, complex conundrums emerge. These include a series of trade-offs between efficiency of trials and quality of outcomes, simplicity of procedures and minimum guarantees of fairness, expertise of adjudicators and participatory frameworks and cultural competency and gender bias and elite capture. The framework advanced in this chapter has attempted to investigate these contradictions and their manifestations in practice, to not only reflect the perspective of the user but to also to demonstrate the difficulties faced in developing a holistic approach to a human rights engagement. NSJS, offer many lessons on accessibility, affordability and accountability. They exist and have gained legitimacy over time and space, and moving backwards from current engagement is not an option any more. From the analysis it is clear that engaging with NSJS is as much a technical decision as it is political and it is vital to ensure that both elements are given equal weightage when charting a course for reform.

122 Amartya Sen, The Idea of Justice (Harvard University Press, 2011).

Part II

5 Unconstitutionalising India’s death penalty Satvinder Juss1

Introduction A strong re-emergence in the popularity of the death penalty has recently taken place in the Indian sub-continent. In both India and in Pakistan it has firmly ensconced itself in public consciousness where it is now securely embedded. The reasons for its popularity are that it is seen as a fitting response to the scourge of terrorism that afflicts both countries.2 In India it is also seen as an answer to the calls for retribution for a spate of sexual violence committed against women and children. This is in stark contrast to Andrew Novak’s findings, made in a recent comprehensive world-wide study, that “[t]he death penalty is in rapid and irreversible retreat everywhere in the English-speaking world, even in the most intransigent holdouts like Texas and Singapore.” More to the point, it “has declined even faster than this, to the point of extinction in the Commonwealth.” Novak had declared how “[a]cross the Commonwealth, the mandatory death penalty is in decline in favour of a capital sentencing regime that delegates sentencing discretion to a trial judge,”3 not least because of the received wisdom

1 Professor of Law at The Dickson Poon School of Law, King’s College, University of London; Ph.D. (Cambridge University) FRSA; Fellow of the International Academy of Freedom of Religion & Belief; Barrister-at-Law of Gray’s Inn; Deputy Judge of the Upper Tribunal (IAC); Formerly Visiting Professor of Law and Visiting Distinguished Scholar in Residence, Indiana University – Bloomington (1998); Human Rights Fellow at Harvard University (1997); I am grateful to Rajgopal Saikumar of New York University for his invaluable assistance in the preparation of this chapter, to Robert Wintemute of King’s College London, to Professor Sital Kalantry of the Cornell Law School, and to Professor Arudra Burra of the Indian Institute of Technology, for their insightful comments. Needless to say all remaining errors are my own. 2 Pakistan, after a self-imposed moratorium since March 2008, took to state executions at the end of March 2014 with the zeal of a newly converted zealot after the horrifying Taliban school attack which killed 132 children. In six months and by June 2015 it had performed 150 executions, outnumbering Saudi Arabia, with the largest death row in the world. (See Doug Bolton, “Pakistan Performs 150 Executions in Six Months, More Than Saudi Arabia,” The Independent, Tuesday, 9 June 2015. Available at www.independent.co.uk/news/world/asia/ pakistan-performs-150-executions-in-six-months-more-than-saudi-arabia-10306668.html#.) 3 Andrew Novak, “The Abolition of the Mandatory Death Penalty in India and Bangladesh: A Comparative Commonwealth Perspective,” 28 Pacific McGeorge Global Business & Development Law Journal 227 (2014) at p. 227. Available at https://scholarlycommons.pacific.edu/ globe/vol28/iss2/6.

106  Satvinder Juss that ”the death penalty, as the ultimate expression of state power, must be treated with great care.”4 Yet, this optimism was eclipsed by a subsequent report from Amnesty International that there has been “a killing spree” in many countries across the world.5 The death penalty, it seems, will not die a quiet death anytime soon6 – and least of all, not in India, as this chapter sets out to show. Yet, for a punishment of such antiquity and ancient usage, fundamental questions still remain today about the efficacy of the death penalty. Precisely when the death penalty should be meted out to serious offenders, on what grounds, for what offences, and to what end, is as unclear today as it ever was. In 2015 the Law Commission of India was asked by India’s Supreme Court to inquire into “whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.” After many years of its questionable use the Supreme Court had concerns about how the “[d]eath penalty and its execution” had “become a matter of uncertainty,”7 and so it asked the Law Commission to look into it. When the Law Commission published its report,8 it confirmed that the ‘demanding and compelling’ standard of the ‘rarest of rare’ exception, for Indian death penalty cases, established by the well-known case of Bachan Singh in 1980, had not been applied in a principled manner at all, but in an inconsistent, arbitrary and judge-centric fashion. In this chapter, I first argue that there is an uncertain legal basis for the use of the death penalty in India in the first place because the Indian Constitution does not provide for capital punishment.9 What it does do is to provide for a ‘right to life’, making it clear in Article 21,10 that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Precisely what is the procedure ‘established by law’ for the deprivation of life, however, is the very question to which there is no clear answer provided. For this reason, I next argue that this in turn has led to the application of capital

  4 Andrew Novak, The Global Decline of the Mandatory Death Penalty: Constitutional Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Ashgate, 2014) at p. 1.   5 The report shows how an alarming number of countries resorted to the death penalty in a flawed attempt to stop crime and terrorism in 2014. Their 68-page report, published in early 2015, shows that at least 778 executions were carried out globally in 2013, of which 538 were in Iran and Iraq alone, amounting to two-thirds of the world’s total. This showed an increase of 682 executions in 2012 an increase of 15%. Available at www.amnestyusa.org/ pdfs/DeathSentencesAndExecutions2014_EN.pdf.   6 In February 2019 Sri Lanka also ended the moratorium on the death penalty in order to be tough on drug crimes: see, “Sri Lanka Advertises for Two Hangmen as Country Resumes Capital Punishment,” The Guardian, 15 February 2019. Available at www.theguardian.com/world/ 2019/feb/14/sri-lanka-advertises-for-two-hangmen-as-country-resumes-capital-punishment.   7 262nd Report of the Law Commission of India, The Death Penalty, 217 (August 2015) at p. 1, para 1.1.1. Available at http://lawcommissionofindia.nic.in/reports/report262.pdf.  8 Ibid.   9 Unlike Article 2(1) of the European Convention on Human Rights (from 1950 until A.L. (X.W.) v. Russia, 29 October 2015). 10 Article 21 goes wider than the ‘right to life’ as it states that, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

Unconstitutionalising death penalty 107 punishment in ways that is arguably unconstitutional and troubling,11 because for judges to simply suggest that the death penalty is the ‘rarest of the rare’ punishment is not a fitting answer to the lack of a proper constitutional basis. Third, I argue that when judges impose a sentence, they invariably enter the political arena. This is normally the preserve of the prosecuting authorities. However, judges proceed in the judgment by providing a description of the offender that installs the perpetrator in the public imagination as an uncivilised savage who is beyond the pale of human society, fit only for death by hanging. Such a caricature created through the power of the court’s own linguistic flourish, or staccato anger, and which is then coupled with the use of abstract nouns, in order to justify imposing a death sentence, has led to the death penalty retaining its popularity both with the state and the public alike. This habit of characterisation and representation is, I argue, a throw-back to the colonial tendency of treating marginalised and disempowered groups in society as the ‘other’ and it is this which has hampered the development of coherent and principled penal policy in the sub-continent. Finally, I suggest that populist government measures, including those introducing the death penalty for new offences, pose particular problems for the Indian judiciary, especially when enacted by the executive branch instead of the legislature.

The legal basis of Indian death penalty law The case for the death penalty in India is far from clear. In constitutional terms, it has very shaky foundations. There is no secure foothold for death by hanging in the Constitution and no sure legal home in statute. As against this, there is the ‘right to life’ in Article 21 of the India Constitution.12 One of India’s greatest judges, Bhagwati J. had said of it that the “right to live . . . is comprehended within the broad connotation of the right to life.”13 For him, “[t]he fundamental right to life which is the most precious human right and which forms the ark of all other rights must be . . . interpreted in a broad and expansive spirit so as to invest it with significance and vitality.”14 Krishna Iyer J., another giant of the Indian judiciary, said of Article 21 that “in its sublime brevity” it is a provision which guards “human liberty by insisting on the prescription of procedure established by law” and that “those procedures so established must be fair, not fanciful, nor

11 Indeed, it has already been argued that the death penalty in India has a ‘reckless’ application: see, G. Sreeparvathy, “Death Penalty in India: A Case of Reckless Justice,” 11 September 2013. Available at https://ssrn.com/abstract=2478629 or http://dx.doi. org/10.2139/ssrn.2478629. 12 See, D. Drishti, “Article 21 of the Constitution of India – Right to Life and Personal Liberty.” Available at www.lawctopus.com/academike/article-21-of-the-constitution-of-indiaright-to-life-and-personal-liberty/. 13 Francis Coralie Mullin vs Administrator, Union Territory of Delhi & Others (1981) 2 SCR 516 at para 8. Available at www.casemine.com/judgement/in/5609abf3e4b014971140dbc7. 14 Ibid., at para 6.

108  Satvinder Juss formal nor flimsy.” So, as he observed, “[t]he question is whether there is any procedure . . .”; and to that end, Article 21 stands as “the procedural magna carta protective of life and liberty.” If there is no procedure then, as he put it, “Justice is functionally outraged.”15 Yet, there is every reason to suppose that the ‘procedure’ for Indian death penalty cases is both ‘fanciful’ and ‘flimsy’. In Indian law, there is no consistent and established ‘procedure’ to determine the application of the death penalty. If the best that can be said of it is, as Bindal and Kumar observe, that “the Indian Constitution does not forbid capital punishment, because Article 72(1)(c) of the Constitution empowers the President to suspend, remit or commute the death sentence of any person,” then this assumes rather more than can be taken for granted. This is especially so if it is also added in the same breath that “[t]his textual support for the death penalty, however, should not deter anyone from appreciating the spirit of the Constitution, which undergoes transformation in tune with the changing times in order to remain socially relevant.”16 The legal basis for the death penalty in India appears to have slipped through quietly by legislative omission rather than legislative commission during the birth of the nation. If this is so, what has been described as ‘capital’ punishment is a most inappropriate basis for the infliction by the state on its citizenry.17 In 1931, there was a bill to abolish the death penalty for offences under the Indian Penal Code. It came before the Central Legislative Assembly, a body formed after the elections of September 1930. It was proposed by Babu Gaya Prasad Singh, who was an elected member from Bihar. It was, however, defeated. In a matter of a few days only, the Indian freedom fighters, Bhagat Singh, Rajguru and Sukhdev, were hanged in Lahore Jail on 23 March 1931. Later at its Karachi Session in 1931, the Congress Party drafted its Fundamental Rights and Duties and moved a resolution for the abolition of the death penalty.18 Sanchayita Paul Chakrabarty and Dhritiman Chakrabarty have cogently explained how, whereas “the entire session was conducted in the backdrop of the execution of Bhagat Singh, Sukhdev, and Rajguru,” it was “also reckonable for a very incisive and prospective resolution drafted at the end of the conference, one which is counted as the precursor to the Indian constitution” and here under the header, ‘Fundamental Rights and Duties’ it was unanimously stated, ‘There Shall be no

15 P. S. R. Sadhanantham vs Arunachalam & Anr on 1 February 1980 2 SCR 873. Available at https://indiankanoon.org/doc/1463544/. 16 Amit Bindal and C. Raj Kumar, “Abolition of Death Penalty in India: Legal, Constitutional and Human Rights Dimensions” pp. 123–140, at p. 125. Available at www.researchgate. net/publication/299783513_Abolition_of_the_Death_Penalty_in_India_Legal_Constitutional_and_Human_Rights_Dimensions. Amit Bindal and C. Raj Kumar, “Abolition of the Death Penalty in India: Legal, Constitutional, and Human Rights Dimensions,” in Confronting Capital Punishment in Asia: Human Rights, Politics, And Public Opinion 135–36 (Roger Hood & Surya Deva eds., 2013). 17 In India ‘capital punishment’ means death by hanging, although, because etymologically the term capital was derived from the Latin ‘head’, it alluded to execution by beheading. 18 Rahul Tripathi, “Beyond the News: The Debate Over Death,” The Indian Express, 14 March 2018. Available at https://indianexpress.com/article/explained/the-debate-overdeath-penalty-law-commissions-supreme-court-on-capital-punishment-5096813/.

Unconstitutionalising death penalty 109 Capital Punishment’.19 Indian independence from British rule then followed in 1947 from British rule. After independence, India’s Constituent Assembly elected to write the Constitution of India between 1947 and 1949, did not expressly provide for the death penalty, but appears to have assumed its continued existence, despite reservations. A range of questions were debated even then, from the death-penalty’s judgecentric nature, to its possible arbitrariness in imposition, to its discriminatory impact on the poor, and to the possibility of error. Some, such as Pandit Thakur Das Bhargava, drew attention to the fact that “the question of life and personal liberty is different. Those who are condemned to death cannot be recalled to life if the wrong sentence is carried out.”20 Shri Jaspat Roy Kapoor argued that the essential question in the case of a condemned person was: “should or should not such a person who has been convicted and sentenced to death for the first time, should he or should not he have the right of appeal?”21 Dr. B R Ambedkar, chairman of the Drafting Committee, made two trenchant remarks. It is widely acknowledged that he wished to see the death penalty abolished.22 What is less well publicised is the fact that, given the difficulties and controversies over the efficacy of the death penalty, he wished to see the matter fully debated and decided upon in Parliament. What he said in the Constituent Assembly was: I think it would be much better to leave it to Parliament because this is a matter which would certainly require some kind of statistical investigation. My other view is that rather than have a provision for conferring appellate power upon the Supreme Court to whom appeals in cases of death sentence can be made, I would much rather support the abolition of the death sentence itself. (Hear, hear.) That, I think, is the proper course to follow, so that it will end this controversy. After all, this country by and large believes in the principle of non-violence. It has been its ancient tradition, and although people may not be following it in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can and I think that having regard to this fact, the proper thing for this country to do is to abolish the death sentence altogether.23

19 Sanchayita Paul Chakrabarty and Dhritiman Chakrabarty, “Revisiting the ‘Karachi Resolution’: The Genealogy of Reintroducing Capital Punishment in India,” Café Dissensus, 1 January 2014. Available at https://cafedissensus.com/2014/01/01/revisiting-the-kara chi-resolution-the-genealogy-of-reintroducing-capital-punishment-in-india/. 20 Constituent Assembly Debates On 3 June 1949 Part Ii. Available at https://indiankanoon. org/doc/348883/. 21 Ibid. 22 Rahul Tripathi, “Beyond the News: The Debate Over Death,” The Indian Express, 14 March 2018. Available at https://indianexpress.com/article/explained/the-debate-overdeath-penalty-law-commissions-supreme-court-on-capital-punishment-5096813/ 23 Constituent Assembly Debates On 3 June 1949 Part Ii. Available at https://indiankanoon. org/doc/348883/

110  Satvinder Juss What this tells us in no uncertain terms is that Parliament after independence was meant to decide upon, and legislate for, the abolition of the death penalty post-independence, after embarking on a ‘statistical investigation’. Not only did it not do so, but everyone in the build-up to independence, amongst the main protagonists in India’s freedom struggle, wished to see it abolished. Amongst these, both the resounding affirmation of Karachi Session in 1931 that ‘There Shall Be No Capital Punishment’ as well as Dr. B R Ambedkar’s considered view, which he announced to popular acclaim during the Constituent Assembly debates, was that India should after independence ‘adhere to the principle of non-violence as a moral mandate.’ But something else also then happened shortly after Independence. On 30 January 1948 Mahatma Gandhi fell to an assassin’s bullets. Ironically, even though Mahatma Gandhi would have forgiven his assassins, if it had not been for assassination, the death penalty in India might have been abolished in 1948 when he was murdered. His death was the big turning point for the Constituent Assembly in not pushing for the abolishing of the punishment. Ambedkar, who rarely used the Gandhian language of non-violence, even referred to Gandhi’s death as a significant watershed moment. Gopal Krishna Gandhi, the grandson of Mahatma Gandhi, also subsequently referred to it.24 Given the act of omission in failing to ask the Indian Parliament failing to legislate for the death penalty, it was left to secondary legislation in the form of section 354(3) of the Criminal Procedure Code to mandate that “special reasons” need to be stated when a death sentence is awarded.

The ‘rarest of the rare’ doctrine The best that can be said, therefore, is that capital punishment in India is extraordinary and unusual. This is provided only that the constitutional power to hand down a sentence of death exists in the first place. This cannot just be assumed. In Bachan Singh in 1980 a five-member constitutional bench of the Supreme court explained that “special reasons” was a criterion which “obviously means ‘exceptional reasons’ founded on exceptionally grave circumstances of the particular case.” The Bachan Singh Court declared the death penalty to be constitutional under Indian law, but held that it had to be applied only in the ‘rarest of rare’ cases. Indian death penalty law has always been considered unique for postulating

24 Gopal Krishna Gandhi, Abolishing the Death Penalty: Why India Should Say No to Capital Punishment (New Delhi: Aleph, 2016). See especially, the book extract of Gopal Krishna Gandhi on ‘Why India Should Abolish the Death Penalty’ Daily O, 19 July 2017, where states that, “The approach of death penalty is foundationally misconceived. Cruel in its operation, ineffectual as deterrence, unequal in its application in an uneven society, liable like any punishment to be in error but incorrigibly so, the death penalty compounds these grievous flaws by yet another. It leaves the sentiment for retribution – cited as a primary ‘good’ the penalty does – unrequited by creating new thirsts for the same sentiment.” Available at www.dailyo. in/politics/gopalkrishna-gandhi-abolish-death-penalty-yakub-memon-capital-punishmentlaw/story/1/18461.html. Also see the excellent review by Suhrith Parthasarathy, “The End of the Origin,” The Hindu, 26 November 2016. Available at www.thehindu.com/ society/history-and-culture/The-end-of-the-origin/article16699829.ece.

Unconstitutionalising death penalty 111 this high threshold for capital punishment cases. It is often forgotten that only three years later, in 1983, a smaller three-judge bench of the Supreme Court in Machii Singh,25 fatally misinterpreted the ‘rarest of the rare’ exception, referring to it as “the shackles of this doctrine.”26 At a panel discussion in 2017 on “Matters of Judgment: A Judges’ Opinion Study On The Death Penalty And The Criminal Justice System”, which was released by the Centre on the Death Penalty at the National Law University, Delhi, Senior Advocate, Rebecca John, as late as 2017, was able to say that most judges of the Supreme Court did not understand the ratio of its judgment in Bachan Singh.27 The smaller bench of the Supreme Court in Machii Singh misconstrued Bachan Singh, by invoking a theory of the balancing of aggravating and mitigating circumstances through a balance sheet approach. Bachan Singh had expressed a principled opposition to it. Yet, most Courts thereafter began adopting the ‘balance sheet approach’ as if it was complimentary to the ‘rarest of the rare’ approach. Machhi Singh involved a feud between two families, where 17 lives were lost in quick succession in five incidents which occurred in five different villages. The smaller bench held that “the guidelines indicated in Bachan Singh’s case (supra) will have to be culled out”28 with a view to taking “an overall global view of all the circumstances,”29 and it went on to evaluate the merits of imposing the death penalty “when the murder is committed in an extremely brutal, grotesque, diabolical. revolting, or dastardly manner so as to arouse intense and extreme indignation of the community,”30 which many may consider to be injudicious language. It was not until 2002 that the Indian Supreme Court exposed this as an attempt to postulate an “absolute rule for invariable application.”31 If this is so, then the death penalty in India does not in truth subscribe to the ‘rarest of the rare’ doctrine all. Its application has been unconstitutional in every practical sense. The practice does not match the theory. The result is that more people have been sentenced to death in India than otherwise should have been, and for those awaiting long years on death row the dilatoriness in first, the hearing of Mercy Petitions, and then in their summary rejection with unseemly haste, has compounded calls for justice for the condemned. For these reasons, the use of this particular form of punishment is now beginning to raise issues not only of its administration but of its very legality as a form of punishment.32

25 Machii Singh v. State of Punjab (1983) 3 SCC 470. 26 Ibid., at para 32. 27 See, The Indian Jurist, 16 February 2019. Available at https://theindianjurist. com/2017/12/09/judges-supreme-court-not-understand-judgment-bachan-singh-senioradvocate-rebecca-john/ 28 Machii Singh v. State of Punjab (1983) 3 SCC 470 at para 38. 29 Ibid., at para 40. 30 Ibid., at para 33. 31 See Vashram Narsibhai Rajpana v. State of Gujarat (2002) Cri.L.J at page. 32 This concern has led to Shashi Tharoor proposing a The Death Penalty (Abolition) Bill 2017 (see the Bill at http://164.100.47.4/billstexts/lsbilltexts/asintroduced/2621LS%20 As%20Int . . . pdf). Referring to the Death Penalty as an “aberration in a healthy democracy”

112  Satvinder Juss The ‘rarest of the rare’ doctrine has accordingly fallen into disrepute. It is honoured in name only, and not in deed. Nothing demonstrates this better than the capital punishment case of Bhullar. He was a chemical engineer professor, who was convicted on Khalistani terrorist charges, for triggering a bomb blast in New Delhi in September 1993, which killed 9 persons and injured 25. He was sentenced to death in August 2001. His Mercy Petition was filed before the President of India on 14 January 2003. Yet, it was not heard for the next eight years. When it was, it was summarily dismissed on 14 May 2011. Before the Indian Supreme Court he then proceeded to cite the delay in seeking commutation of his sentence of death to life imprisonment. On 21 January 2014, in the landmark judgment of Shatrughan Chauhan vs Union of India,33 the Supreme Court resoundingly declared that the government’s inordinate delay in deciding the mercy plea of death row convicts can result in the commutation of their death sentences to life imprisonment. The decision was all the more dramatic as it included together 15 other condemned prisoners, together with 4 aides of the notorious forest brigand Veerappan.34 The delay was held to have a ‘dehumanising effect’ on condemned prisoners who faced the “agony” of living under the

and a “dated form of retributive justice” untenable with India’s non-violent traditions, he moved the Bill in August 2018 (see www.deccanherald.com/national/death-penalty-abber ation-686913.html). As he explained in his Twitter post on 3 August 2018, “according to a recent study, 72% of 60 former judges of the Supreme Court who had heard 208 cases of death penalty, said that the wrongful convictions resulting in the death penalty are a worrying reality. Some even said that there is tendency to fabricate evidence through torture. Given the poor quality of legal aid in our country, it is not surprising that most of those sentenced to death are from economically disadvantaged communities. Even wrongful conviction of life imprisonment can always be corrected, unlike in the case of those who are executed. The death penalty does not deter criminal activity more than the punishment of life imprisonment. In fact, the Supreme Court itself held that cases that resulted in the death penalty cannot be rationally distinguished from those that resulted in life imprisonment. This indicates arbitrariness in the treatment of human lives based on the ideologies and beliefs of judges, and is therefore a violation of the right to equality under Article 14 and the right to life and dignity under Article 21 of the Constitution. The 262nd Report of the Law Commission analyzed the issue of death penalty in depth & concluded that it lacks penological justification. For all these reasons, my Bill seeks to abolish the death penalty and substitutes it with imprisonment for the rest of the criminal’s life.” (see https://twitter. com/shashitharoor/status/1025728276143079424?lang=ar). 33 Shatrughan Chauhan & Anr. v. Union of India & Ors. (2014) 3 SCC 1. Available at https://indiankanoon.org/doc/59968841/. See also, Gautam Bhatia, “Indian Supreme Court Changes Stance on Death Penalty: Holds Delay to be a Ground for Commutation,” Oxford Human Rights Hub, 5 February 2014. Available at http://ohrh.law.ox.ac.uk/ indian-supreme-court-changes-stance-on-death-penalty-holds-delay-to-be-a-ground-forcommutation/ 34 Veerappan was a “kidnapper, elephant poacher and sandalwood smuggler” whose death remains shrouded in mystery: see Ila Nanya, “Decade-long Hunt for Veerappan Ends in 20 Minutes: STF Cop Who Chased Bandit Details Hunt,” The Hindustan Times, 31 March 2017. Available at www.hindustantimes.com/india-news/veerappan-case-closedstf-cop-who-chased-bandit-details-hunt-in-memoir/story-efFD3sQeHbpreGqMuXvWnN. html

Unconstitutionalising death penalty 113 shadow of death while their plea for mercy was pending.35 But what is interesting is how Bhuller’s Mercy Petition, addressed to the UN in 2013, recorded how “this is the first case in our country in which death sentence has been awarded by the Hon’ble Supreme Court on a split verdict.” For this reason, the remonstration in the petition made it clear that, contrary to what was asserted as principle, the death penalty in India was not being imposed in the ‘rarest of the rare’ cases because in this case, “obviously, all the Hon’ble Judges of the Supreme Court who heard the appeal did not agree on the balance sheet of the mitigating and aggravating circumstances. This by itself shows that it cannot be treated as the rarest of rare case.” Not only was that a case where the most senior judge, Mr Justice M.B. Shah, in a three-bench court, had “acquitted the accused of all the charges,” but that Bhullar had, as the Mercy Petition to Her Excellency Navi Pillai claimed, been “convicted solely on the basis of confession obtained under coercion and torture” and “[t]here were no eye witnesses who identified him” and ”the police have no other evidence.”36

Judicial populism and the death penalty So why is the death penalty in India being used in this way? Obviously, the requirement in section 354(3) of the Criminal Procedure Code that there be “special reasons” for a death sentence to be handed down, implies that capital punishment is not automatic but unusual. But I would like to suggest that this supposedly high threshold (of the ‘rarest of the rare’ cases) is increasingly met by the court itself creating ‘exceptional reasons’ for entirely populist reasons. This is being done through the power of the court’s own linguistic flourish or staccato anger, which is then coupled with the use of abstract nouns, just in order to justify imposing a death sentence. The court in this way manages to overlook the stringent requirement of evidence of ‘exceptionally grave circumstances.’ This is constitutional violence because the adjective ‘exceptional’ is not superfluous to the requirement of the existence, as an a priori fact, of ‘grave circumstances.’ Indeed, as a question of objectively verifiable fact, the case before the court should exhibit some highly unusual feature over and above the requirement of just ‘grave circumstances’. Yet, the court relies on its own power of denunciation and expression of unrestrained moral outrage to justify imposing the death penalty. Why should this happen? One answer could be, as Rajgopal Saikumar has perceptively pointed out, that the courts are practising ‘demosprudence’, where overlapping values are vying for recognition “such as representative governance, majoritarian electoral systems, Demos, populism, deliberative democracy, etc., as

35 Anup Surendranath, “Supreme Court’s Judgement on Death Penalty a Humane Approach,” Live Mint, 11 October 2015. Available at www.livemint.com/Opinion/rSZ5NXi3SKNC ZQM7jtsWeL/Supreme-Courts-judgement-on-death-penalty-a-humane-approach. html?facet=print 36 Copy of Mercy Petition on File with Author.

114  Satvinder Juss forms of political institutions that derive legitimacy from the will of the people.”37 Professor Upendra Baxi was the first to argue that the Indian judiciary has been practising demosprudence since the late 1970s, in order to give legitimacy to an unelected institution, without expressly saying so.38 But Saikumar suggests that, if it is the case that the Courts are practising ‘demosprudence’, then this is in the context of a logic which is “inverted and negative.”39 If by this it is meant that whereas in the 1970s and 1980s distinguished Indian judges like Justice Krishna Iyer40 and Chief Justice Bhagwati41 had engaged in the crafting of a progressive public interest jurisprudence, the likes of which had never before been seen, then this is certainly correct. Krishna Iyer in 2013 was, at 97 years old, India’s oldest Supreme Court judge, when he proclaimed that the death penalty should be abolished even for terrorists who remained undeterred. This was after Afzal Guru, the Kashmiri separatist, convicted for his role in the 2001 Indian Parliament attack, was hanged on 9 February 2013 just three months following Ajmal Kasab, the sole surviving member of the 26/11 Mumbai terror atrocity.42 But the death penalty in India will not be removed if the growth of ‘emergency powers’ after independence continues unabated. This is because the grey area between constitutionalism (which protects human rights) and democracy (which protects the majority to the exclusion of the minority) is the area that is occupied by ‘emergency powers.’ Nasser Hussain describes how the British deployment of ‘emergency’ powers in colonial India continued into postcolonial independent India and Pakistan. It served to achieve “what legal theorists like to call the ‘habit of obedience’.”43 Such ‘emergency powers,’ long visible in the use of governance by Ordinance which circumvents parliamentary procedure, means that since emergency measures neither fall in human rights/constitutionalist justification,

37 Rajgopal Saikumar, “Negotiating Constitutionalism and Democracy: The 262nd Report of the Law Commission of Indian on Death Penalty,” 12 NLSIU Socio-Legal Review 1 (2016) pp. 81–107, at p. 85. 38 Upendra Baxi, “Demosprudence Versus Jurisprudence: The Indian Judicial Experience in the Context of Comparative Constitutional Studies,” 14 Macquarie Law Journal (2014) 3. Available at http://classic.austlii.edu.au/au/journals/MqLawJl/2014/13.html 39 Rajgopal Saikumar, “Negotiating Constitutionalism and Democracy: The 262nd Report of the Law Commission of Indian on Death Penalty,” 12 NLSIU Socio-Legal Review 1 (2016) pp. 81–107, at p. 91. 40 Tariq Khan, “Remembering the People’s Judge: The Judicial Philosophy of Justice Krishna Iyer,” Bar & Bench, 4 December 2018. Available at https://barandbench.com/ remembering-the-peoples-judge-the-judicial-philosophy-of-justice-krishna-iyer/ 41 Anuj Bhuwania, “P.N. Bhagwati’s Legacy: A Controversial Inheritance,” The Hindu, 27 June 2017. Available at www.thehindu.com/opinion/lead/a-controversial-inheritance/ article19150883.ece. 42 “Death Penalty Should Be Abolished Even for Terrorists: Justice VR Krishna Iyer,” The Economic Times, 11 February 2013. Available at //economictimes.indiatimes.com/ articleshow/18438767.cms?utm_source=contentofinterest&utm_medium=text&utm_ campaign=cppst 43 Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Michigan University Press, 2003) at p. 130.

Unconstitutionalising death penalty 115 nor in the democratic/legislative, a third measure was allowed to arise, based on a more foundational exclusion of the Other.44 Rajgopal Saikumar, however, engagingly describes45 how Indian death penalty judgments nowadays often weave a narrative which describes convicted murderers as ‘diabolical monsters’ plotting ‘sinister designs’ so that “judges see themselves as re-constituting a community on the verge of breakdown” whereby “monsters are linguistically created, and monstrosity of the criminal is then used as a justification for death.”46 He confirms how “[t]wo broad classes of crime are predominantly awarded the death penalty in India: terrorism and the rape and murder of minors.” The reason is that “[t]errorism is seen as a direct threat to national security and sovereignty” such that in 2015 “even the 262nd Law Commission of Indian Report, otherwise exhibiting progressive values, succumbed to public opinion by recommending the abolition of death penalty for all crimes except those related to terrorism.”47 As for sexual crimes, he explains how “[t]he rape and murder of girls is seen as a tear in the fabric of the family union, portrayed as a synecdoche of national integrity – an attack on the feminine figure allegorically representing the nation.”48 The result is that “[s]uch crimes, especially in the past decade, have provoked heavily mediatized public outrage leading to the controversial Criminal Law (Amendment) Ordinance promulgated in April 2018 that introduced death penalty for the rape of children below twelve years of age.”49 Already, in Vasant Sampat Dupare the Supreme Court had expressed its outrage at sexual crimes inflicted on children in language that left no doubt about how it would be treated: “The rape of a minor girl is nothing but a monstrous burial of

44 I am grateful to Rajgopal Saikumar for his discussions with me regard to this issue. 45 Rajgopal Saikumar, “To Shock the Conscience: Rhetoric in Death Penalty Judgments of the Indian Supreme Court,” 42 Journal of South Asian Studies (August 2019). 46 In this, he focuses on a detailed analysis of Kamta Tiwari v. State of Madhya Pradesh (1996) 6 SCC 250, which involves the rape of a seven-year old girl by someone whom she addressed as ‘Tiwari Uncle’ after he took her to a nearby shop for chocolates and biscuits, when she wandered into his television repair shop looking for him, before she was brutally assaulted and killed. 47 Ibid., at p. 6. See also Rajgopal Saikumar, “Negotiating Constitutionalism and Democracy: The 262nd Report of the Law Commission of Indian on Death Penalty,” 12 NLSIU SocioLegal Review 1 (2016) pp. 81–107. 48 He refers to Sumathi Ramaswamy, The Goddess and the Nation: Mapping Mother India (Duke University Press, 2010); Sugata Bose, The Nation as Mother and Other Visions of Nationhood (Penguin, 2017). 49 In fact, as he observes, a day after President Ram Nath Kovind approved the death penalty Ordinance of OSCO or rapists who attack children, a survey of citizens (conducted by LocalCircles) showed that 76% of people agreed with it, whilst only 18% thought that life imprisonment without parole should be given for convicted rapists, and only 3% said it should be a seven-year jail term, which was the current law at the time. See, “Child Rapists: 76% People Want Death Penalty for Perpetrators, Says Survey,” Business Standard, 23 April 2018. Available at www.business-standard.com/article/current-affairs/childrapists-76-people-want-death-penalty-for-perpetrators-says-survey-118042300583_1. html.

116  Satvinder Juss her dignity in the darkness. It is a crime against the holy body of a girl child and the soul of society . . . It is diabolical and barbaric.”50

Coercive legalism and the death penalty In this chapter, however, I would like to suggest a different interpretation of the use of such luridly tendentious words expressed with staccato anger, namely, that the death penalty in India has become an instrument of coercive post-colonial legal violence. It is a hang-over from the penal violence of colonial times. The ‘violence’ of the death penalty in India is a manifestation of continuing state post-colonial violence. The Supreme Court justifies the death penalty on the basis that the crimes in question are an affront to the “collective conscience of the community,” but I would like to suggest that the court can only come to that conclusion after it has first embarked on a deliberate and active construction of the perpetrator as the ‘Other.’ This is someone who is ‘beyond the pale’ and beyond human redemption. ‘Violence’, of course, takes many forms. Edward Said in his seminal text, Orientalism, produced a generation ago,51 rejected the banal tradition of simple anticolonialism, by highlighting the colonial violence of conquest, plunder, and material human exploitation. Most importantly, he argued that violence was as much a vice of the mind, as it was a physical violence engaged in the subjection of the West’s ‘Others’. This kind of intellectual mind violence was the bedrock of colonialism’s so-called ‘civilizing mission’, which in the end was just a form of racial and cultural oppression. In essence, it was an epistemic violence. This is also the ‘violence’ of post-colonialism. It too classifies, discriminates, and differentiates these ‘Others’ dividing them into hierarchies of people, while purporting to understand them in rational scientific ways, with the result that, in the jurisprudence of the Indian death penalty, what we see is how some transgressors are put to death, others are not, and the concept of the ‘rarest of the rare’ cases is an especially useful legal and moral construct for that purpose. Said had referred to the distinctive colonial mind-set which formed the epistemic base of imperialism, which led to the production of symbolic representations of people, their culture, and their history. If the era of the colonisation of the West’s ‘Others’ was characterised by these colonial representations, then the era of post-colonial India’s ‘Others’ is no less characterised by the same continuing characterizations. In this way, ‘power’ over the ‘other’ continues to be perpetuated – and in this case the power of life and death. Yet, the situations are different. One is the dehumanisation of entire groups of innocent individuals because of their group membership (natives who are not the same race as of the imperial power). The other is the dehumanisation of small numbers of guilty individuals (convicted criminals who have done something wrong) because of their individual conduct.

50 Vasant Sampat Dupare v. State of Maharashtra (2015) 1 SCC 253. 51 Edward Said, Orientalism (Pantheon Books, 1978).

Unconstitutionalising death penalty 117 What decision-makers forget is that even convicted murderers are human beings who have human rights. In his philosophical theories, Michel Foucalt’s had engaged with ‘power’, what it is, how it works, and how it defines and captures knowledge, so as to become the basis of social control. Said’s insights into postcolonialism were a discursive formation in the Foucauldian sense. Both explained how domination occurs through the exercise of power. Both did so by deconstructing the colonial discourse and entering into the colonial mind-set. Vivid examples of the use of the death penalty in India tell us that even where we successfully essentialise ‘coloniality’ as an invariant power configuration, this alone is not enough to bring about the necessary change in post-colonial societies. In the same way, Kim Wagner, a scholar of the history of colonial India, has recently described “the violence at the heart of British colonial counterinsurgency during the high-point of Empire”52 He suggests that “British knowledge and understanding of the people they fought throughout the Empire was invariably shaped by the colonial ideologies and racial hierarchies impact in the ‘civilising mission’ and central to the imperial experience.”53 What was instrumental in this ‘civilising mission’ and ‘colonial experience’ was the “[c]onstruction of the enemy as ‘un-civilised’, ‘savage’, or ‘fanatic’ ” and that this “dictated and justified techniques of violence that were by the same token considered unacceptable” where people were considered more “ ‘civilised’.” In fact, in order to justify this differential treatment colonial imperial doctrine and practice relied on ‘cultural knowledge’ but as Wagner explains, “[c]ultural knowledge was not simply a facet of imperialism; it was an organizing principle underwriting the rule of colonial difference according to which ‘uncivilised’ people had to be treated by different standards” and that it was in this way that “the rule of colonial difference informed savage warfare at every level during the high-point of Empire.”54 Another distinguished historian of the British Indian Empire, Taylor Sherman, has analysed the study of post-colonial penal

52 Kim Wagner, “Savage Warfare: Violence and the Rule of Colonial Difference in Early British Counterinsurgency,” 85 History Workshop Journal 1 (April 2018) pp. 217–237 at p. 218. Available at https://doi.org/10.1093/hwj/dbx053. For instance, see Jordanna Bailkin, “The Boot and the Spleen: When Was Murder Possible in British India?” 48 Comparative Studies in Society and History 2 (2006); Taylor Sherman, State Violence and Punishment in India, 1919–1956 (London, 2010); Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge, 2011); Martin Thomas, Violence and the Colonial Order: Police, Workers and Protest in the European Colonial Empires, 191–1940 (Cambridge); William Gallois, A History of Violence in the Early Algerian Colony (Houndsmills, 2013). 53 Wagner, op cit, at p. 231. 54 Kim Wagner, op cit, at p. 231. He refers to his own work, “ ‘Calculated to Strike Terror’: The Amritsar Massacre and the Spectacle of Colonial Violence,” 233 Past & Present 1 (1 November 2016) pp. 185–225. Available at https://doi.org/10.1093/pastj/gtw037. Military historians such as Calwell had reminded his readers of “the distinction between ‘civilised’ and ‘un- civilised’ people, suggesting that: ‘Uncivilised races attribute leniency to timidity’.” (See C. E. Calwell, Small Wars: Their Principle and Practice (London, HMSO, 1896, 1899, 1906), at p. 147; cited by Wagner at p. 230).

118  Satvinder Juss practices across the world.55 She observes that these at first focused narrowly on imprisonment. However, from around 2004 they focused on capital and corporal punishment. What is now needed, she argues, however, is “a new focus for the study of colonial punishment,” and one “which views colonial coercive techniques as part of imperial ‘coercive networks’.”56 The legal underpinnings of post-colonial violence have yet to be fully understood, I would argue, given that post-colonialism came to represent different things in different manifestations. One of the earliest uses of the term was by the Marxist political economist Hamza Alavi.57 ‘Post-colonialism’ refers to the period following formal decolonisation. It does not mean ‘post-independence.’ It also does not mean ‘after-colonialism’ because to suggest this “would be to falsely ascribe an end to the colonial process.”58 The term is complex and contested. That being so, I would argue that it is entirely conceivable that, in the Indian death penalty context, it acquires a new inflection in colonialist attitudes that have refused to die, namely, in the state’s treatment of those it considers to be beyond the pale, beyond redemption, caught up in a vortex of barbarism so remote that putting them to death is the only recourse left to it. Although Indian jurisprudence categorises this as applying only in the ‘rarest of the rare’ case, the evidence shows that this is an exercise in perpetuating the historical consequences of the effects of colonialism, by the use of what I describe as ‘coercive legalism’, in a postcolonial society like India, which is dogged by internal instabilities, which are to no small degree a consequence of European imperialism and its aftermath.

‘Coercive legalism’ and the ‘conscience of society’ It was in Machii Singh that the Supreme Court of India most directly referred to circumstances whereby the community’s “collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict the death penalty.” It was there that it was made clear that “[t]he community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of the commission of the crime, or the anti-social or abhorrent nature of the crime.”59 Given this premise, it is small wonder that the death penalty in

55 Taylor C. Sherman, “Tensions of Colonial Punishment: Perspectives on Recent Developments in the Study of Coercive Networks in Asia, Africa and the Caribbean,” 7 History Compass 3 pp. 659–677. DOI: 10.1111/j.1478-0542.2009.00597.x. Available at http:// eprints.lse.ac.uk/32801/1/Sheman_Tensions_colonial_punishment_2009.pdf. 56 Taylor C. Sherman, op cit at p. 659. 57 Hamza Alavi, “The State in Post-colonial Societies,” 74 New Left Review (1972). Also, see n Kathleen Gough and H. Sharma, eds. Imperialism and Revolution in South Asia (London, Monthly Review Press, 1973). 58 See, Bill Ashcroft et al., eds. The Post-Colonial Studies Reader (1995, at p. 117) where it is explained: “ ‘Postcolonial’ as we define it does not mean ‘post-independence’, or ‘after colonialism’, for this would be to falsely ascribe an end to the colonial process. Post-colonialism, rather, begins from the very first moment of colonial contact. It is the discourse of oppositionality which colonialism brings into being. In this sense, post-colonial writing has a very long history.” 59 Machii Singh v. State of Punjab (1983) 3 SCC 470 at para 32.

Unconstitutionalising death penalty 119 India continues. Indeed, it continues with a vengeance. It continues with judicial support given through the language of moral outrage and condemnation which almost pre-determines the eventual outcome. Nothing demonstrates this better than the ‘Delhi Rape Case’ in 2012. This was the sexual assault case popularly known as the ‘Nirbhaya’, but officially known as Mukesh & Anr v. State of Delhi.60 The case involved a 23-year-old paramedical student, Jyoti Singh, who was brutally beaten, tortured, and raped after an evening out in December 2012 with her male companion. Both had gone to the cinema to watch Life of Pi. On the way back home at 9.30 p.m. they were picked up by six young men pretending to run a private bus. Both were ferociously beaten and tortured. Jyoti Singh was trundled to the back of the bus, where she was subject to a fiendish rape. A metal rod was thrust into her causing her internal injuries as the moving bus sped through the street of Delhi, and each of the six men took it in turns to violate her. She was cast out on the road to die before being picked up at 11 p.m. by the Delhi police. She lived long enough to name her assailants, before she was flown by the Indian government to a specialist hospital in Singapore to reconstruct her internal organs. She died two days later. Widespread national and international coverage followed. Thousands of protesters clashed with security forces across India. Delhi stood paralysed for many days. There was an acute realisation of how “sexual harassment and assault remain the norm across the country,” to use the words of Maria Thomas.61 A lyrical flourish followed the tragedy when the name ‘Nirbaya’ was gloriously given to the victim by some in the popular press, at a time when Indian law prevented the naming of a rape victim. ‘Nirbaya’ stood for ‘The Fearless’. The accolade was seen as fitting for a young woman who had fought so hard to stay alive before she died in a distant Singapore hospital bed of catastrophic injuries. The perpetrators were sentenced to death in 2013. The Delhi High Court upheld the sentence in 2014, and the Supreme Court in May 2017. The accused then filed ‘review petitions’ before the Supreme Court challenging the sentence of death. These were dismissed on 9 July 2018, almost six years after the event on the dreadful night of 16 December 2012. The judgment of Dipak Mishra J. (who wrote also for R. Banumathi and Ashok Bhushan JJ.), dismissing on 9 July 2018 the ‘review petitions’ to the Indian Supreme Court in the Nirbaya62 case, starts with an evocative flourish of staccato words, as if the beginning of a macabre novel: The cold evening of Delhi on 16 December, 2012 could not have even remotely planted the feeling in the twenty-three year old lady, a para-medical

60 Mukesh and Anr Vs. State for Nct of Delhi and Ors – Court Judgment (decided on May-05–2017). 61 Maria Thomas, “India’s Supreme Court Upholds Death Penalty for 2012 Delhi Gang-rape Convicts,” Quartz India, 9 July 2018. Available at https://qz.com/india/1323589/nirb haya-verdict-supreme-court-upholds-death-penalty-for-2012-delhi-gang-rape-convicts/. 62 Mukesh and Anr Vs. State for Nct of Delhi and Ors – Court Judgment (decided on 9 July 2018). Available at www.legalcrystal.com/case/110045/mukesh-vs-state-nct-delhi (also at www.thehindu.com/news/national/article18390998.ece/binary/SupremeCourtverdict).

120  Satvinder Juss student, who had gone with her friend to watch a film at PVR Select Mall, Saket, that in the next few hours, the shattering cold night that was gradually stepping in would bring with it the devastating hour of darkness when she, along with her friend, would get into a bus at Munirka bus stand to be dropped at a particular place; and possibly could not have imagined that she would be a prey to the savage lust of a gang of six, face brutal assault and become a playful thing that could be tossed around at their wild whim and her private parts would be ruptured to give vent to their pervert sexual appetite, unthinkable and sadistic pleasure.63 The graphic depiction continues by Dipak Mishra J. as he proceeds to immediately then refer to “the bestial proclivity, inconceivable self-obsession and individual centralism of the six” who “made the young lady to suffer immense trauma” so that “the life-spark that moves the bodily frame got extinguished in spite of availing of all the possible treatment that the medical world could provide.”64 It is true that in the ensuing pages of the judgment, the actual narrative is then given in no less than six pages, under the heading ‘The Prosecution Narrative’65 in much less emotive and sedate terms. However, the die by that stage is cast.66 It is clear that the judgment is written as much for popular consumption by the public at large, as for lawyers and scholars in the academy, when the court is tasked with the serious business of endorsing capital punishment. Undeterred in going down this path, the court continues to inform us that, “when the incident of gang-rape like the present one surfaces, it causes ripples in the conscience of society and serious doubts are raised as to whether we really live in a civilized society.”67

Why this matters The question is why this matters. It matters because the executive branch of the Indian government itself is increasingly prone to by-pass the legislature and enact populist measures by using the invidious device of the ordinance. These measures include putting people to death. Unless the Indian judiciary acts as a bulwark against this, there is a huge risk that the death penalty will continue to be applied in an arbitrary and capricious manner. Thus, in February 2019 Indian Prime Minister Narendra Modi declared in a speech in Madhya Pradesh that “We have made a law to hang those who rape daughters. There is now a government in Delhi that listens to people and decides.”68 The speech referred

63 64 65 66 67 68

At para 1, pp. 1–2. Ibid., at p. 2. Ibid., at pp. 6–11. Although there is a reference at para 7, p. 9 that “she was also subjected to unnatural sex.” At para 147. The words used were: “Betion ke saath durvyavahar karnewale rakshasi manovruti ke logon ko faasi par latkane ka kanoon banaya hai. Delhi mein aisi sarkar hai jo aapke dil ke aawaz

Unconstitutionalising death penalty 121 to the central government’s ordinance on capital punishment, passed a year earlier for people convicted of raping girls, but only if they were below the age of 12. In April 2018, the BJP Government’s Women and Children Development (WCD) minister, Maneka Gandhi, had proposed that rape of any child of under 12, could lead to the death penalty.69 The background to the measure was the disturbing rape and murder of a young girl in Kathua in the Jammu region of India in 2018. This is an area where nearly a third of the population is Muslim in a Hindu-dominated country. A second rape case in 2018 involved an alleged attack by a BJP government minister on a teenage girl, this time in India’s fourth largest state. In both cases the authorities were reluctant to take action. Both are discussed in the following paragraphs. The maximum sentence in India’s Protection of Children Against Sexual Offences Act (often known as ‘POCSO’) for aggravated penetrative sexual assault is life imprisonment. Swati Mahiwal, the Delhi Commission for Women (DCW) chief, and Maneka Gandhi, with many others who clamoured for the death penalty, did so quite oblivious of the fact that the Indian courts already had the power in law to award the death penalty in any case of gruesome rape and murder, provided that the crime could be classified as the ‘rarest of rare’ crime. Indeed, lest it be forgotten, even in the Delhi Gang Rape case of 2012 (which is discussed in the following paragraphs), the accused were sentenced to death under existing provisions of the Indian Penal Code, without the need for an amended statute. What is even more curious, however, is the fact that the Union Cabinet’s amendment by ordinance of the existing law, only brought in the death penalty in case of a child victim who was no more than 12 years of age because on this basis, the ‘Kathua rape victim’ would have been covered by a stricter penalty of death than the ‘Unnao rape victim’ who would not, although of course the latter could find her assailant sentenced to death if his crime could be categorised as being the ‘rarest of the rare.’ The two high-profile sexual assault cases of 2018 both involved child rape victims. Both led to loss of life. The first was the ‘Kathua Rape Case’. In January 2018, an eight-year-old Muslim shepherd girl of a nomadic family was raped and murdered over a four-day period by members of a powerful local Hindu family. By the time that the incident came to national attention many months later, it transpired that the aim was apparently to drive out the Muslim population from this Hindu-dominated region by attacking this defenceless little girl. The town police did not help matters when in its charge-sheet, it attributed the crime to nothing more than ‘communal bigotry.’ This provoked massive outrage across

sunti hai aur nirnay leti hai.” See Milind Ghatwal, “Now Delhi Listens to You: PM Modi on Death Penalty for Rape of Children,” The Indian Express, 9 February 2019. Available at https://indianexpress.com/article/india/death-penalty-for-rape-narendra-modi-kathuagang-rape-murder-case-unnao-5150570/. 69 “Maneka Gandhi Proposes Death Penalty for Rape of Children Below 12 Years,” The Economic Times, 13 April 2018. Available at //economictimes.indiatimes.com/articleshow/63743397. cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

122  Satvinder Juss India. There were huge protests.70 Alarmingly, however, a local Hindu nationalist group also staged counter-demonstrations. These set out to support the culprits, who were all Hindus. The lawyers of the town, determined not to be outdone, then even prevented the police from filing charges against the accused. Public dismay grew. As James Tapper and Bhanvi Satija71 wrote in Britain’s The Guardian, “[m]any protesters expressed particular anger at India’s ruling Hindu nationalist party for initially siding with the accused in the Jammu-Kashmir case. The victim was a Muslim and the accused are Hindus.” In the Los Angeles Times, Shashank Bengali gave a harrowingly detailed account of the kidnapping, drugging, and repeated violating of the eight-year Kathua rape victim before referring to an open letter written by 600 academics from India and abroad “calling the rapes ‘part of a pattern of repeated targeted attacks’ on minorities.”72 The second case of 2018 involved the rape of a 16-year-old minor girl. This time by a government minister, Kuldeep Singh Sengar, in Unnao, in Uttar Pradesh. This is no backwater like Jammu. There also the police declined to take action against the accused. On the contrary, Sengar “dismissed the charges against him as a ‘conspiracy’ levelled by ‘low-class people’,”73 and when the victim persisted in demanding justice, her father was beaten up so badly by Sengar’s brother that he died the next day. The brother has since been charged with murder. The traumatised victim attempted suicide. Once again there was a “a nationwide uproar with civil bodies and citizens demanding justice for the minor.”74 In the Washington Post, Annie Gowen referred both to the Kathua rape case and the Sengar case as arising from “India’s rape culture.”75 Maria Thomas alluded to the perceived ‘otherness’ of victims when she explained how “[t]hese cases merely demonstrate the role of powerful interests and religious prejudices, which add to women’s existing difficulties of securing justice.” She was especially concerned with the “rising incidence of child rape” in India whereby “in 2016 alone, the National Crime Records Bureau recorded a staggering 19,765 cases of child rape across

70 Aarti Singh, “Kathua Rape Victim’s Kin Want Lawyer Out,” The Times of India, 15 November 2018. Available at http://timesofindia.indiatimes.com/articleshow/66627757. cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst. 71 James Tapper and Bhanvi Satija, “India Poised to Introduce Death Penalty for Child Rapists,” The Guardian, 21 April 2018. Available at www.theguardian.com/world/2018/ apr/21/india-poised-to-introduce-death-penalty-for-child-rapists 72 Shashank Bengali, “Why India’s Rape Crisis Is Getting Worse Under Narendra Modi,” Los Angeles Times, 21 April 2018. Available at www.latimes.com/world/asia/la-fg-india-rape2018-story.html 73 See “BJP Legislator Kuldeep Singh Sengar Arrested in Rape Case,” Al Jazeera, 15 April 2018. Available at www.aljazeera.com/news/2018/04/bjp-legislator-kuldeep-singhsengar-arrested-rape-case-180415012552419.html 74 Alok Pandey, “Unnao Rape Case: What Has Happened So Far – A Timeline,” NDTV, 13 April 2018. Available at www.ndtv.com/india-news/unnao-rape-case-what-has-happenedso-far-a-timeline-1836833 75 Annie Gowen, “8-year-old Girl’s Gang Rape and Murder Triggers New Outrage Over India’s Rape Culture,” The Washington Post, 19 April 2018. Available at www.chicagotri bune.com/news/nationworld/ct-india-rape-culture-20180419-story.html.

Unconstitutionalising death penalty 123 the country, up 82% from the year before.”76 Faced with mounting public indignation, the embattled BJP government’s ill-thought-out knee-jerk reaction to these outrages was to pass an ordinance to amend several provisions of the Indian Penal Code, the Protection of Children from Sexual Offences Act, (‘POCSO’), the Code of Criminal Procedure and the Indian Evidence Act. To effect such a momentous change through the use of an ‘Ordinance’ is remarkable in itself. Ordinances are made by executive fiat. Unlike an Act of Parliament, they are not subject to democratic scrutiny by elected representatives. Ordinances are a colonial hang-over, once much loved and utilised by the rulers of the Raj. Yet, as Professor Shubhankar Dam ruefully observes in his pathbreaking study, “[a]lthough constitutionally limited to circumstances when it is necessary to take immediate action, ordinances, in practice, have an expansive presence in India’s parliamentary annals.” So much so that far from being an constitutional exception they are today a constitutional norm of governance, so that, “[a]fter six decades, they are neither exceptional nor limited. Rather, they are a convenient and – distressingly at time – the preferred legislative method.”77 Ordinances are now deliberately passed in India precisely in order to circumvent all manner of parliamentary scrutiny despite the fact that they have no equivalence with legislative enactments having parliament’s democratic imprimatur. They are traceable to the Indian Councils Act 1861, which vested the power of making laws and regulations was vested in the ‘Governor General in Council.’78 Significantly, in the words of Shubhankar Dam, although “the Council became British India’s primary legislative body” in certain circumstances the 1861 Act “vested original legislative power in the governor-general, independent of the Council.”79 Ordinances may be passed by the Prime Minister at the federal level, even though India has a parliamentary system, under Article 123 (1) of the Indian Constitution: “If at any time, except when both Houses of Parliament exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require,” and the same power exists for state governors.80 The Indian government’s sexual offences ordinance was a populist measure. That is why it was passed by ordinance. By April 2018, the ordinance was sanctioned by Prime Minister Narendra Modi’s cabinet and sent to

76 Maria Thomas, “Two Gruesome Child Rape Cases in India Are Only the Latest Sign of a Growing Problem,” Quartz India, 13 April 2018. Available at https://qz.com/india/1251853/ kathua-and-unnao-child-rape-cases-are-only-the-latest-sign-of-a-growing-problem/ 77 Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (Cambridge University Press, 2014) at p. 5. 78 This was a body consisting of 6 to 12 non-official members (under s. 10) but the Council’s legislative power’s were greatly limited because in many cases the Governor-General’s prior sanction was required (under s. 19). 79 Ibid., at pp. 38–39. 80 Under Article 213 (1), “If at any time, except when the Legislative Assembly of a State is in session . . . . The Governor is satisfied that the circumstances exist which render it necessary for him to take immediate action, he may promulgate such ordinances as the circumstances appear to him to require.”

124  Satvinder Juss the president for his assent. Although the ordinance would require the approval of parliament within six months to become law, illogically, suspects could still in the meantime be prosecuted under the ordinance. This is a textbook example of how not to pass law, and it is particularly troubling given that it involves the use of the death penalty for which there had earlier been no provision at all under POCSO. If the record of the Indian judiciary is anything to go by there is every risk now that these laws will just be waved through and the death penalty implemented when the cases begin to arise before them.

Conclusion Before Indian freedom was gained, the delegates at the Karachi Session of 1931 had unanimously declared ‘There Shall Be No Capital Punishment.’ During Indian independence, at the Constituent Assembly debates in 1947, Dr. B R Ambedkar had called for a “statistical investigation.” This was whilst still staunchly proclaiming that India should after independence “adhere to the principle of non-violence as a moral mandate.” Neither has happened. In fact, in August 2015, the Law Commission of India declared that “Capital punishment fails to achieve any constitutionally valid penological goals.”81 It denounced “[t]he capital punishment enterprise as it operates in India” as one which “perpetuates punitive practices that inflict pain, agony and torture which is often far beyond the maximum suffering permitted by Article 21” and chillingly pointed out that “[t]he debilitating effects of this complex phenomenon on prisoners” is something which “can only be called a living death.”82 The constitutional basis for India’s death penalty has, with the passing of every epoch, looked increasingly like an exercise in unconstitutionalism. Of course, it is arguable that, if there is today no express prohibition of the death penalty in the Indian Constitution, that means that the Indian Parliament is free to maintain existing laws that provide for the death penalty or even pass new ones. But if this is so, it raises the question whether the Supreme Court of India should in the 21st century not proceed to declare the death penalty as unconstitutional – just as the Constitutional Court of South Africa has done after its independence.83 Perhaps it is not too late to reflect on the words of one of India’s founding fathers?

81 LCI Report at p. 213, para 7.1.2. 82 LCI Report at p. 212 at para 6.8.5. 83 See, S v Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665). Also Available at www.saflii.org/za/cases/ZACC/1995/3.html.

6 Gujarat 2002 Refracted memories, inadequate images Oishik Sircar1

The tragedy of repetition The 2002 Gujarat pogrom was an essential marker of the ideology of the Indian nation as Hindu supremacist (celebratory for some, devastating for others), and now it serves additionally as a marker of the governmentality of the Indian state as neoliberal triumphalist (celebratory for the same lot, and devastating for several more). The specter of the pogrom inhabits public consciousness in India in a way where memory and forgetting are not racing against each other, but are constantly on a collision path. Like magnets, when they reach the point of collision they repel each other. Their paths are located on a Mobius strip: so if you start with memory, you encounter forgetting charging at you with teeth-gritting glory, and if you start with forgetting, the phantom of memory will always be surreptitiously lurking at you. The consequence is an uneasy coexistence where the primary concern is not whether Gujarat should be remembered or forgotten, but how do we remember what happened in 2002? While forgetting here is not about denying what happened, memory is about selecting which story to tell. And every story claims to be “the truth”: in which forensic truth is competing against experiential truth is competing against neoliberal truth is competing against electoral truth is competing against artistic truth. With the competing narratives of “truth” that have been in circulation since the Sabarmati Express’ coach number S6 catching fire in Godhra on February 27, 2002, to the election of Narendra Modi as the Prime Minister of India in 2014 and again in 2019, to the judgment in the Gulberg Society massacre case in 2016, among others, there are stories after stories: official, legal, colloquial, fabricated, imagined, hopeful, utopic, devastating, disgusting. Events that have transpired between then and now have only proliferated spirals of impunity, the celebratory hand-in-hand march of Hindutva and neoliberalism, the spectacular rise and rise of the idea of Narendra Modi, the co-option of the Muslim vote bank by the Bharatiya Janata Party (BJP), the sophisticated marketing and distribution 1 Associate Professor, Jindal Global Law School, O.P. Jindal Global University, India. [email protected] jgu.edu.in. I thank the Lalakiya family in Ahmedabad for hosting me with such care and warmth during my visit in 2014. I acknowledge the support of Ravi Nair who invited me to join the South Asia Human Rights Documentation Centre’s fact finding team in 2002 that visited Gujarat in the wake of the 2002 pogrom. Thanks are also due to Farooq and Imtiaz for their generosity with time and trusting me with their stories.

126  Oishik Sircar of fear, the sanitization of the public sphere in Gujarat, and the unending trials: legal and personal.1 I was a law student in Pune when news of the Godhra train burning and the later events of a violent Hindu “revenge” against Muslims started coming in. Most of the English language media was critical of the Modi government,2 but their characterization of what was happening in Gujarat followed the standard cause-and-effect explanation. This is what Teesta Setalvad has called the ‘who cast the first stone’ thesis:3 ‘every act of violence of the majority Hindu is an act of retaliation of the perennially and permanently barbaric Mussalmaan.’4 The Newtonian physics of Narendra Modi’s immediate response was to say ‘every “action” has an equal and opposite “reaction”.’5 And Godhra was marked (for posterity) as a singular ‘flashpoint’6 moment that performs a ‘moral inversion’7 where India’s majority Hindus become victims of its minority Muslims. The art of mobilizing public opinion through the marking of a singular event as ‘history vanishing’8 was mastered by the US government when September 11 happened, and it has been used to justify all the military aggressions and invasions that the US has carried out in the name of self-defense and democracy since then. Godhra has been made to occupy our memories in an identical manner: it is the flash that blinds us to the history of how the pogrom was founded on the deep and dispersed structures of Hindutva which enabled its planning well before the train caught fire.9 It also masks the historical and economic antecedents of Hindutva in Gujarat that did not erupt only as a spontaneous and reactionary response to Godhra.10 The ability to apply nuance, to see through the spectacle of this blinding flashpoint at my first experience of surrogate consumption of real-time mass violence, was pretty low. A mix of bewilderment, anger, and numbness was what I felt. The only previous occasion in my lifetime when I had heard about “communal” violence was a decade ago in 1992 when the Babri Masjid

  2 Darshan Desai, ‘Massacres and the Media: A Field Reporter Looks Back on Gujarat 2002’, in Sarai Reader 04: Crisis/Media (Sarai, CSDS, 2004) 228–234.   3 Teesta Setalvad, Foot Soldier of the Constitution: A Memoir (LeftWord, 2017) 78.  4 Ibid.   5 Quoted in Manoj Mitta, The Fiction of Fact Finding: Modi & Godhra (HarperCollins, 2014) 237.   6 Jasbir Puar, citing David Kazanjian, understands a ‘flashpoint’ as ‘a centripetal turbulence of illumination so powerful that it may blind the past even as it spotlights the present and lights up the future’. Jasbir Puar, Terrorist Assemblages: Homonationalism in Queer Times (Duke University Press, 2007) xviii.  7 Harsh Mander, ‘Where Are India’s Dissenting Hindus?’ Wire, 12 April 2017 .  8 Supra note 5 at xix.   9 Teesta Setalvad, ‘Contours of a Conspiracy’ Frontline, 17 May 2013 www.frontline.in/ cover-story/contours-of-a-conspiracy/article4660251.ece>. 10 Achyut Yagnik and Suchitra Sheth, The Shaping of Modern Gujarat: Plurality, Hindutva, and Beyond (Penguin, 2005); Howard Spodek, Ahmedabad: Shock City of Twentieth-Century India (Indiana University Press, 2011).

Gujarat 2002 127 in Ayodhya was demolished by militant Hindu mobs followed by an antiMuslim killing spree.11 At that time, as a school student, all I looked forward to in the distant city of Calcutta were the curfews, because that would mean not having to go to school. During the long periods of curfew, I enjoyed watching cricket matches on TV without my mother constantly asking me to go study (because exams were indefinitely postponed), and playing cricket on the street with friends during the two-hour curfew breaks that were allowed once a week. The brutality of the violence was conveniently censored by my parents and its antecedents had already been mythologized on state television.12 While some information did reach me, the lack of discussion in our “secular Hindu” family about the demolition and the ensuing killings did not make it so obvious. Some unrest was happening somewhere else in India, and the curfew was just a way to keep us safe, was the standard refrain. I did not complain. Ten years later, in 2002, when I was looking at the grotesque images of heaps of dead bodies, maimed and charred, and deserted streets and burnt houses, and desecrated mosques, on live 24/7 television (privatized news channels were enjoying their fledgling liberated status covering the violence without regulation after several years of state control),13 the language that was put into circulation to characterize what was happening followed the cause/effect logic. The violence was almost universally being referred to as the “post-Godhra riots”. Everything that was happening was being traced back to Godhra. We were surreptitiously being told that our memory scales must have a limit: do not look beyond Godhra; Godhra should be the only source for your explanations; treat Godhra as exceptional, so that what has followed it, despite the unprecedented levels of brutality, becomes routine. It took some time to understand that the violence was far from a riot. It was a genocidal massacre, or more aptly a pogrom. I will talk about my choice of characterizing the event as such later. When you type “Gujarat 2002” into Google even today, the first link that comes up is the Wikipedia entry, and it starts with the following words: ‘The 2002 Gujarat violence was a series of incidents starting with the Godhra train burning and the subsequent communal violence between Hindus and Muslims . . . ’14 A Google image search throws up photos, the first of which are images of the burning train compartment.15 The significantly detailed April 2002 Human

11 A. G. Noorani, Destruction of the Babri Masjid: A National Dishonour (Tulika, 2017). 12 Arvind Rajagopal, Politics After Television: Hindu Nationalism and the Reshaping of the Public in India (Cambridge University Press, 2001); Victoria L. Farmer, ‘Mass Media: Images, Mobilization, and Communalism’ in David Ludden (ed.), Contesting the Nation: Religion, Community, and the Politics of Democracy in India (University of Pennsylvania Press, 1996) 98–118. 13 Anuja Jain, “ ‘Beaming It Live’: 24-Hour Television News, the Spectator and the Spectacle of the 2002 Gujarat Carnage” (2010) 8(2) South Asian Popular Culture 163. 14 Wikipedia, ‘Gujarat 2002 riots’ . 15 Google image search, www.google.co.in/search?rlz=1C1GCEU_enIN820IN821&tbm= isch&q=gujarat+2002+riots&chips=q:gujarat+2002+riots,online_chips:godhra+riots& usg=AI4_-kTkquaaC0tC4CCfkLDOUnd5JR41Mw&sa=X&ved=0ahUKEwjTt__HnI3fAh VDWisKHXGyBaoQ4lYILygI&biw=1366&bih=626&dpr=1>.

128  Oishik Sircar Rights Watch report on the carnage titled “We Have No Orders To Save You”: State Participation and Complicity in Communal Violence in Gujarat opens with the sentence: ‘The ongoing violence in Gujarat was triggered by a Muslim mob’s torching of two train cars carrying Hindu activists on February 27, 2002.’16 In several critical and closely documented publications on the violence – academic, activist, journalistic – Godhra has been marked as what feminist philosopher Martha Nussbaum has called ‘the precipitating event.’17 The “post-Godhra riots” adage continues to be a part of the conscious and unconscious vocabulary for most Indians, and despite the activism, civil society outcry, several detailed factfinding reports, enquiry commissions, sustained and selective media coverage, some convictions, Godhra remains that flashpoint moment that blinds us to the long-term organized and meticulously planned continuum of anti-Muslim hatred that resulted in the Gujarat pogrom. In fact, the construction of Godhra as the enraging flashpoint has closed the space to grieve for those who lost their lives in the train fire. In this chapter, I intend to weave the experiential, literary, and analytical to offer a memorial account that will try to treat the Gujarat pogrom and its aftermath not as an exceptional, but an ordinary event. Rendering Gujarat 2002 as exceptional tends to serve the purpose of allowing secularlists like me to disavow their own complicities in the ideological makings of the event and the memories of it that are kept alive. My narrative – organized as a bricolage – aims to bring together my own experience of being in Ahmedabad in the wake of the pogrom, a later visit that took me there over a decade after the event, and combine it with critical refractions (not reflections). Reflection has the possibility of being a self-contained engagement; on the other hand, refraction carries the potential to destabilize and bend our disciplined contours of thought. Refraction does not necessarily suggest a “moving away” from issues at stake, but a critical engagement that confronts not one, but competing truths.18 Thus, I do not claim to reveal the neutral truth about the pogrom.19 My account critiques what I disagree with, but without rejection,20 recognizes the partiality of my own view,21

16 Human Rights Watch, We Have No Orders to Save You (Human Rights Watch, 2002) www.hrw.org/reports/2002/india/>. 17 Martha Nussbaum, The Clash Within: Democracy, Religious Violence and India’s Future (Harvard University Press, 2007), 2. 18 Oishik Sircar, ‘Some Paradoxes of Human Rights: Fragmented Refractions in Neoliberal Times’ (2011) 2 Journal of Indian Law and Society 182–228; Martin Jay, Refractions of Violence (Routledge, 2003) 2. 19 See, generally, Teju Cole, ‘Against Neutrality’ in Known and Strange Things (Random House, 2016), 212–217. 20 Duncan Kennedy, ‘Legal Education and the Reproduction of Hierarchy’ (1982) 32(4) Journal of Legal Education 591, 600. 21 Margaret Davies, Asking the Law Question (Thomson Reuters, 3rd ed., 2008), 199.

Gujarat 2002 129 and prioritizes the question of suffering, without fetishizing it.22 I do this to let neither my subjectivity nor factual objectivity get better of each other in the making of my memory of Gujarat 2002.

Storytelling atrocity On our way to Chamanpura, a working-class locality in Ahmedabad, Farooq bhai suggested that we pick up Imtiaz. It was well past lunch time, but he insisted that we visit Gulberg Society before heading to Teen Darwaja to eat kabab and halwa. Farooq had been driving me around the city since the morning. I had got to know him a few days back when I arrived in Ahmedabad – having hired his auto-rickshaw at the railway station. On the way to the place where I was staying, I had told him why I was in the city – to look for public remnants of the 2002 anti-Muslim pogrom for a research project on collective memories of mass violence. I felt embarrassingly voyeuristic to say this even as I wanted to befriend Farooq, but his relaxed disposition had offered an invitation that allowed me to rest the inhibitions of a first meeting. He very forthcomingly agreed to show me around a few days later. It was winter – sometime around late November in 2014 – but the Ahmedabad sun was scorching hot. I was distraught – hungry, sweaty, and deeply shaken by the visits to some of the key locations in the city which experienced massacres of Muslims by mobs mobilized by neo-fascist Hindu militant groups23 (with active state support) during the Gujarat pogrom in which close to 2,000 people (mostly Muslims) died, and tens of thousands were displaced. These locations were pointed out to me by Farooq, because 12 years later, they carried no visible scars on the city’s gaudy body decorated by huge hoardings publicizing the 2015 Vibrant Gujarat Summit, where Ban Ki-moon, the then UN Secretary General, had accepted the invitation to be the chief guest.24

22 Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies; Arthur Kleinman and Joan Klienman, ‘The Appeal of Experience; The Dismay of Images: Cultural Appropriations of Suffering in Our Times’ in Arthur Klienman, Veena Das and Margaret Lock (eds.) Social Suffering (University of California Press, 1997) 1–24. 23 Many scholarly works have traced the origins of Hindutva ideology to that of European fascism. See Aijaz Ahmad, Lineages of the Present: Ideology and Politics in Contemporary South Asia (Verso, 2002) 129; Tapan Basu, Pradip Datta, Sumit Sarkar, Tanika Sarkar, and Sambuddha Sen, Khaki Shorts, Saffron Flags (Orient Longman, 1993); Sumit Sarkar, ‘The Fascism of the Sangh Parivar’ (1993) 27(5) Economic and Political Weekly 163; Marzia Casolari, ‘Hindutva’s Foreign Tie-Up in 1930s: Archival Evidence’ (2000) 35(4) Economic and Political Weekly 218; Marzia Casolari, In the Shade of the Swastika: The Ambiguous Relationship Between Indian Nationalism and Nazi-fascism (I Libri di Emil, 2011); Jairus Banaji (ed.), Fascism: Essays on Europe and India (Three Essays Collective, 2016). 24 Press Trust of India, ‘Ban Ki-moon to attend Vibrant Gujarat Summit – 2015’ The Economic Times, 20 December 2014 .

130  Oishik Sircar The Summit has been an annual fixture for the state to project it as India’s most investment friendly destination for transnational corporations. Gujarat’s developmentalist refashioning of itself by Narendra Modi – under whose watch (and alleged active connivance) as chief minister and home minister, the 2002 pogrom was carried out – catapulted him to national politics, and ultimately got him elected as India’s prime minister in mid-2014.25 The summit has also been the location where, year after year, world leaders and India’s richest industrialists line up to offer heaps of praise for Modi’s neoliberal economic vision.26 It is a meticulously planned attempt by the government to thwart efforts that try to keep alive the memories of the pogrom. Sample this quote by industrialist Anil Ambani: ‘Narendra bhai has been described in different ways. My personal favourite comes from what his name literally means in Sanskrit – a conjunction of Nara and Indra. Nara means man and Indra means king or leader. Narendra bhai is the lord of men and a king among kings.’27 The deification of a man who is alleged to have personally overseen the design of the pogrom, who has never expressed any remorse about the murder of thousands of Muslims as the accountable political authority in that state, and who has carried on spewing hate speech with impunity, says a lot about the intimacies between neoliberalism and Hindu fascism in the new India. Away from the mask of the hoardings, many of the locations that Farooq took me to were mosques and Sufi dargahs of great historical significance that were completely razed to the ground and paved over. Fancy cars drove over these welltarred “smooth roads” now – a metaphor that has come to symbolize Gujarat’s projection of itself as India’s most economically advanced state. The warts – of what remained of those Muslims who survived the pogrom – were preserved as cruel reminders on the cartographic and cerebral margins of the city. These were the squalid ghettoes into which Muslims displaced by violence were forced to live.28 One of these ghettoes – ironically called Citizen Nagar – was built as a location for rehabilitating the survivors.29 The whole area did not have roads, sanitation, or hospitals. It was located right beside the place where the sewage and garbage of the entire city was dumped. Muslims who lived there were thus reminded – through this perverse rehabilitative gesture of the state – of their status being equivalent to the refuse of the city. This was a milder reincarnation

25 Christophe Jaffrelot, ‘What “Gujarat Model”? Growth Without Development – and with Socio-political Polarisation’ (2015) 38(4) South Asia: Journal of South Asian Studies 820. 26 Tommaso Bobbio, ‘Never-Ending Modi Hindutva and Gujarati Neoliberalism as Prelude to All-India Premiership?’ (2013) 67 Focaal: Journal of Global and Historical Anthropology 123. 27 Times of India, ‘Full Text of Anil Ambani’s Birthday Message to PM Narendra Modi’ 20 September 2016 . 28 Darshini Mahadevia, ‘A City with Many Borders: Beyond Ghettoisation in Ahmedabad’ in Annapurna Shaw (ed.), Indian Cities in Transition (Orient Longman, 2007) 341. 29 Dipankar Gupta, Justice Before Reconciliation: Negotiating a ‘New Normal’ in Post-Riot Mumbai and Ahmedabad (Routledge, 2011).

Gujarat 2002 131 of the message, though a more persistent one, that the Hindu Right conveyed to Muslims through the mass killings of 2002.

A small recollection The 2002 pogrom has been one of the most litigated, mediatized, and politically polarizing events of mass atrocity in contemporary India. The version of the events of the pogrom and the narrative that I hold on to through this chapter is aimed at foregrounding the ‘small voices,’ to borrow historian Ranajit Guha’s expression,30 that struggle to keep alive a minor memory of the pogrom in an India where they are constantly being ‘drowned in the noise of statist [and increasingly corporatist] commands,’31 that propagate a dominant memory. It is close to two decades since Gujarat experienced one of independent India’s most violent mass atrocities against its Muslim minority population.32 Postcolonial India has experienced many incidents of anti-minority mass religious violence since the Partition in 1947:33 notably, the ongoing persecution of Muslims by the occupying Indian army in Kashmir,34 the 1983 massacre of Bengali Muslim immigrants from Bangladesh in Nellie, Assam,35 the anti-Sikh violence of 1984 in Delhi,36 the anti-Muslim violence of 1992 in Bombay,37 and the anti-Christian violence in Kandhamal, Orissa (now Odisha), in 2008.38 All of these events, amongst many others that are lower in scale and intensity, have been part of a larger script that animates the violence of postcolonial state making.39

30 Ranajit Guha, ‘The Small Voice of History’ in Shahid Amin and Dipesh Chakrabarty (eds.), Subaltern Studies IX: Writings on South Asian History and Society (Oxford University Press, 1996) 1–12. 31 Ibid. at 3. 32 For a timeline of how the pogrom unfolded see: New York Times, ‘Timeline of the Riots in Modi’s Gujarat’ 19 August 2015 www.nytimes.com/interactive/2014/04/06/world/ asia/modi-gujarat-riots-timeline.html#/#time287_8514>. 33 Gyanendra Pandey, Remembering Partition: Violence, Nationalism and History in India (Cambridge University Press, 2002). 34 Mohamad Junaid, ‘Death and Life Under Occupation: Space, Violence, and Memory in Kashmir’ in Kamala Visveswaran (ed.), Everyday Occupations: Experiencing Militarism in South Asia and the Middle East (University of Pennsylvania Press, 2013). 35 Makiko Kimura, The Nellie Massacre of 1983: Agency of Rioters (Sage, 2013). 36 Manoj Mitta and H. M. Phoolka, When a Tree Shook: The 1984 Carnage and Its Aftermath (Roli Books, 2008). 37 Meena Menon, Riots and After in Mumbai: Chronicles of Truth and Reconciliation (Sage, 2011). 38 Angana P. Chatterji, Violent Gods: Hindu Nationalism in India’s Present – Narratives from Orissa (Three Essays Collective, 2009). 39 Paul R. Brass, The Production of Hindu – Muslim Violence in Contemporary India (Oxford University Press, 2003); Paul R. Brass, Forms of Collective Violence: Riots, Pogroms, and Genocide in Modern India (Three Essays Collective, 2006).

132  Oishik Sircar The Gujarat pogrom is a continuation of this long history of anti-minority mass violence and, thus, is not exceptional.40 However, the pogrom was distinct in certain specific ways.41 The success with which Muslims were targeted was marked by the sophisticated organization of the violence, the macabre forms of brutality, and the unprecedented extent of state involvement, police inaction, and complicity.42 Although official estimates state that the violence lasted for three days, many Gujaratis who lived through it say that it lasted for as long as three months.43 The killings, rapes, arson, and destruction continued unabated, yet despite a complete breakdown of law and order and grave instances of police inaction, a constitutional state of emergency was not declared by the president of India. It can be argued that such a decision reveals how the federal government – which at that time was the BJP led National Democratic Alliance – condoned the event.44 This failure to impose president’s rule rendered the violence as not deserving of federal attention in political and public consciousness, even though it could be considered to be a situation where there was complete breakdown of the constitutional machinery.45 Starting on 28 February 2002, groups of militant Hindus – with active support from Hindu right-wing political factions like the Rashtriya Swayamsevak Sangh (RSS), the Vishwa Hindu Parishad, and the Bajrang Dal – singularly targeted Muslims across rural and urban Gujarat: killing close to 2,000 people (which included some Hindu, Christian, and Parsi casualties as well), ‘disappearing’ an estimated 2,500 people, and driving tens of thousands from their homes.46 Sexual

40 Mushirul Hasan, Legacy of a Divided Nation: Indian Muslims since Independence (C. Hurst, 1997). 41 Amrita Basu, Violent Conjunctures in Democratic India (Cambridge University Press, 2015). 42 Surabhi Chopra and Prita Jha (eds.), On Their Watch: Mass Violence and State Apathy in India – Examining the Record (Three Essays Collective, 2014). 43 Parvis Ghassem-Fachandi, Pogrom in Gujarat: Hindu Nationalism and Anti-Muslim Violence in India (Princeton University Press, 2012) 1. 44 This was evident in the way the then BJP prime minister, Atal Bihari Vajpayee, at a speech delivered in Goa in April 2002, justified the pogrom by citing Muslim separatism as its foundational cause, and rationalizing such alleged Muslim behaviour as an affront to Indian secularism. He had said on record: ‘Wherever Muslims live, they don’t like to live in coexistence with others, they don’t like to mingle with others; and instead of propagating their ideas in a peaceful manner, they want to spread their faith by resorting to terror and threats.’ Quoted in Siddharth Varadarajan (ed.), Gujarat: The Making of a Tragedy (Penguin, 2002), 450–451. 45 The imposition of emergency, or president’s rule, has been a practice of considerable debate in Indian constitutional jurisprudence, especially given the history of the widespread abuse of power and violent throttling of dissent under Emergency rule experienced during 1975–1977 under Prime Minister Indira Gandhi’s leadership. I draw attention to the non-imposition of an emergency during Gujarat 2002 as an attempt by the state to ignore the complete breakdown of law and order deserving special interventions from the central government to stop the violence. On the Emergency, see generally Emma Tarlo, Unsettling Memories: Narratives of the Emergency in Delhi (University of California Press, 2003). 46 Human Rights Watch, We Have No Orders to Save You (Human Rights Watch, 2002) www.hrw.org/reports/2002/india/>.

Gujarat 2002 133 violence was used to murder Muslim women, including pregnant women, in order to humiliate the Muslim community.47 Homes and property owned by Muslims were pillaged and burnt. Several mosques were desecrated and razed to the ground, and roads paved over them overnight.48 The violence targeted Muslims across the board, irrespective of their class status and residential locations.49 That Muslims could be attacked in such a systematic manner without much resistance from the community was not only because of the state administration’s complicity and police inaction. The sophisticated organization was also made possible because an attack on Muslims had been planned well in advance. This planning included the advance accumulation of arms by Hindu militant groups50 and legislative planning of the city of Ahmedabad over many years, which resulted in the creation of Muslim ghettos whose captive populations were easy to attack.51 The violence, thus, was not akin to a “riot” – a spontaneous religious conflagration – but a result of long-term and systematic planning aided through state support that characterizes a “pogrom”.52 Even over a decade after 2002, many Muslims are still displaced,53 and many victim-survivors await compensation for damages.54 The criminal justice processes trying some of the perpetrators have been under threat of being compromised by

47 International Initiative for Justice in Gujarat (IIJG), Threatened Existence: A Feminist Analysis of the Genocide in Gujarat (IIJG, 2003); Tanika Sarkar, ‘Semiotics of Terror’ (2002) 37(28) Economic and Political Weekly; Kumar, Communalism and Sexual Violence: Ahmedabad since 1969 (Tulika, 2017). 48 Achyut Yagnik and Suchitra Sheth, ‘Whither Gujarat?’ (2002) 37(11) Economic and Political Weekly 1009. 49 Asghar Ali Engineer (ed.), The Gujarat Carnage (Orient Longman, 2003). 50 Teesta Setalvad, Foot Soldier of the Constitution: A Memoir (LeftWord, 2017) 213. 51 Christophe Jaffrelot and Charlotte Thomas, ‘Facing Ghettoisation in Riot City’ in Laurent Gayer and Christophe Jaffrelot (eds.), Muslims in Indian Cities: Trajectories of Marginalisation (Hurst, 2012) 43–81; Arvind Rajagopal, ‘Urban Segregation and the Special Political Zone in Ahmedabad: An Emerging Paradigm for Religio-political Violence’ (2011) 5 South Asia Multidisciplinary Academic Journal (online) ; Rupal Oza, ‘The Geography of Hindu Right Wing Violence in India’ in Derek Gregory and Allan Pred (eds.), Violent Geographies: Fear, Terror, and Political Violence (Routledge, 2007). 52 Teesta Setalvad, ‘The Importance of Zakia Jafri’s Protest Petition’ (2013) 48(21) Economic and Political Weekly 10. 53 Amnesty International, ‘A Decade on from the Gujarat Riots, an Overwhelming Majority of Victims Await Justice in India’ April 2012 www.coalitionagainstgenocide.org/ reports/2012/Amnesty-International-A-decade-on-from-the-Gujarat%20riots.pdf>; Mansi Choksi, ‘Narendra Modi’s Shame: Muslim Survivors of the Gujarat Riots Are Still Suffering’ Vice News, 7 May 2014 ; Rina Chandran, ‘Fifteen Years after Bloody Riots, Indian Muslims Struggling to Escape Gujarat Ghettos’ Reuters, 24 July 2017 www.reuters.com/article/us-india-property-religion/fifteen-years-after-bloodyriots-indian-muslims-struggling-to-escape-gujarat-ghettos-idUSKBN1A91OA>. 54 Amnesty International, ‘A Decade on from the Gujarat Riots, an Overwhelming Majority of Victims Await Justice in India’ April 2012 www.coalitionagainstgenocide. org/reports/2012/Amnesty-International-A-decade-on-from-the-Gujarat%20riots. pdf>; New Indian Express, 2002 Bilkis Bano Gangrape: Supreme Court for Gujarat’s

134  Oishik Sircar political interference,55 intimidation of witnesses and judges,56 and faulty investigations by the police and special investigation agencies.57 By the Gujarat government’s own admission made to the Supreme Court of India, of a total of 4,252 cases that victim-survivors registered with the police, nearly half were summarily closed by the police and thus never progressed to the trial stage.58 For the few cases that did get to trial, some in the first instance resulted in full acquittal of all accused due to lack of evidence, reflecting the police’s tardy investigation. State impunity in India, especially for mass anti-minority violence, is strengthened by the active cooperation of the criminal justice system, and local political and patronage networks.59 If lower conviction rates in the post-pogrom trials are one way to measure state impunity, then Gujarat has been particularly notable. As of 2012, in comparison to the national conviction rate of 18.5 per cent for cases related to riots, the conviction rate in cases related to the pogrom in Gujarat was 1.2 per cent.60 Despite the failures in investigation and prosecution related to criminal trials arising out of the pogrom, the judiciary has projected itself as an able and willing neutral arbiter of justice that is not complicit with the deep structures of Hindutva’s anti-Muslim prejudice. This is what Moyukh Chatterjee has called the ‘impunity effect’: ‘how a majoritarian regime conducts farcical legal proceedings that allow it to acknowledge, yet benefit from, state-backed violence against minorities.’61

Reply on Compensation’ www.newindianexpress.com/nation/2018/jan/10/2002bilkis-bano-gangrape-supreme-court-for-gujarats-reply-on-compensation-1749794.html>. 55 Christophe Jaffrelot, ‘Gujarat 2002: What Justice for the Victims?’ (2012) 47(8) Economic and Political Weekly 77. 56 R. K. Misra, ‘Judge Who Convicted Modi’s Minister in Riots Case Now Fears for Her Family’ Wire, 23 July 2015 ; Aarefa Johri, ‘I Was Sick of the Hateful Climate in Gujarat: Judge Explains Why He Quit after the Riots’ Scroll, 7 August 2015 ; Human Rights Watch, ‘Discouraging Dissent: Intimidation and Harassment of Witnesses, Human Rights Activists, and Lawyers Pursuing Accountability for the 2002 Communal Violence in Gujarat’ www.hrw.org/legacy/backgrounder/asia/ india/gujarat/gujarat0904.pdf>. 57 See Manoj Mitta, The Fiction of Fact Finding: Modi & Godhra (HarperCollins, 2014); Rana Ayyub, Gujarat Files: Anatomy of a Cover Up (Rana Ayyub, 2016); Warisha Farasat and Prita Jha, Splintered Justice: Living the Horror of Mass Communal Violence in Bhagalpur and Gujarat (Three Essays Collective, 2016). 58 Surabhi Chopra and Prita Jha (eds.), On Their Watch: Mass Violence and State Apathy in India – Examining the Record (Three Essays Collective, 2014) 174. 59 See generally Patrick Hoenig and Navsharan Singh (eds.), Landscapes of Fear: Understanding Impunity in India (University of Chicago Press, 2015); Ward Berenschot, Riot Politics: India’s Communal Violence and the Everyday Mediation of the State (Hurst, 2012); Vahida Nainar and Saumya Uma (eds.), Pursuing Elusive Justice: Mass Crimes in India and Relevance of International Standards (Oxford University Press, 2013). 60 International Human Rights and Conflict Resolution Clinic (IHRCRC), When Justice Becomes the Victim: The Quest for Justice after the 2002 Violence in Gujarat (Stanford Law School, 2014) ii. 61 Moyukh Chatterjee, ‘The Impunity Effect: Majoritarian Rule, Everyday Legality, and State Formation in India’ (2017) 44(1) American Ethnologist 118, 120.

Gujarat 2002 135 The normalization of state impunity in the wake of Gujarat 2002 has not, however, gone unchallenged. Despite the failures of the state to effectively carry out prosecutions, activists, journalists, artists, academics, and lawyers have spearheaded the campaign to seek justice for the victims and survivors of the pogrom. In these campaigns, they have expressed faith in secular law, in the form of both the Constitution of India and international human rights law, as important tools for holding the state accountable.62 From the initial characterization of the event as a “genocide” rather than a “riot” in order to mobilize international attention by comparing it to the Holocaust, to the campaign that led to the drafting of national legislation to include command responsibility in Indian criminal law,63 secular and international legal standards have been the benchmark used both to demonstrate the Indian state’s unwillingness to prosecute, as well as the way its governance is being shaped by Hindutva ideology. The Hindu Right has, alongside, vested trust in the secular legal mechanisms of the country. Under the secular criminal justice system, leaders of the Hindu Right have been both convicted64 and acquitted of wrong doing for Gujarat 2002.65 Since 2002, the Hindu Right has time and again cited these convictions and the acquittals as the triumph of secular law.66 Secular law, thus, has been deployed in both the pro– and anti–Hindu Right narratives. While the leftists and the liberals have used the Constitution as a tool to resist the spread of Hindutva, the Hindu Right has used the Constitution to vindicate its commitment to secularism.67 Since the 2002 pogrom, Gujarat, under the chief ministership of Narendra Modi (since 2014, the prime minister of India) of the BJP, has been celebrated

62 Kalpana Kannabiran, Tools of Justice: Non-discrimination and the Indian Constitution (Routledge, 2012); N. Jayaram, ‘Narendra Modi, British Invitation and Universal Jurisdiction’ OpenDemocracy, 16 August 2013 www.opendemocracy.net/openindia/n-jayaram/ narendra-modi-british-invitation-and-universal-jurisdiction>. 63 Mihir Desai, ‘The Communal and Targeted Violence Bill’ (2011) 46(31) Economic and Political Weekly 12. 64 Outlook, ‘Naroda Patiya: Kodnani Bajrangi among 32 Convicted’ 29 August 2012 www. outlookindia.com/newswire/story/naroda-patiya-kodnani-bajrangi-among-32-convicted/ 773493>. 65 News18.com, ‘Truth Always Prevails, Says Maya Kodnani on Acquittal in 2002 Gujarat Riots Case’ 21 April 2018 www.news18.com/news/politics/truth-always-prevailssays-maya-kodnani-on-acquittal-in-2002-gujarat-riots-case-1725409.html>; LiveMint, ‘SIT Gives Clean Chit to Modi, 57 Others’ 10 April 2012 www.livemint.com/Politics/hJN Wc0iH34a25I9E6Tpr1K/SIT-gives-clean-chit-to-Modi-57-others.html>. 66 Indian Express, ‘Truth Alone Triumphs, Tweets Modi after SC Relief in Gujarat Riots Case’ 9 January 2014 ; Indian Express, ‘Gujarat Riots: “Hang Me If I Am Guilty”, Says Narendra Modi’ 26 July 2012 . 67 Hindu, “ ‘India First’ Only Religion of Government, Constitution Its Only Scripture: Modi” 27 November 2015 www.thehindu.com/news/national/india-first-only-reli gion-of-government-and-constitution-its-only-scripture-says-modi/article7923917.ece>; India Today, ‘Modi Asserts India’s Secularism, Says Religion a Personal Choice’ 17 February 2015 www.indiatoday.in/india/story/modi-secularism-communal-violencechurch-attacks-religion-240660-2015-02-17>.

136  Oishik Sircar as one of India’s most developed states with unparalleled urban and industrial infrastructure, and has become a preferred destination for corporate investments by multinationals. Due to the projections of rapid growth rates and ease of doing business, the ‘Gujarat Model’ has been showcased by political parties and industrialists as a template for development in the new India. These projections have been questioned by scholars who have argued that Gujarat’s growth is built on the structural marginalization of populations like Muslims, Dalits, and Adivasis. The Gujarat Model has been analysed as playing a role in consolidating the state’s Hindu majoritarianism, and has also been deployed to whitewash the memories of 2002.68 Modi’s critics, particularly the secular left, allege that he – along with other politicians in the Gujarat BJP – oversaw the planning and execution of the 2002 violence. It has been argued that the pogrom was meant to be a definitive step towards furthering the Hindu Right’s vision of establishing India as a Hindu rashtra.69 Hindutva’s neo-fascist vision, inspired by Zionism, wants to establish India as the holy land of Hindus only.70 Muslims and Christians who are in the territory of India are outsiders because their holy lands are elsewhere. According to Hindutva ideology, those who follow Islam and Christianity must assimilate, if they wish to stay in India, or their forced removal or killings will stand justified. In the making of such an ideology against Abrahamic monotheism, Hindutva, ironically, advances an idea of Hindu religion tied to a single all-powerful god in the mythological figure of Ram.71

68 See generally Atul Sud (ed.), Poverty Amidst Prosperity: Essays on the Trajectory of Development in Gujarat (Aakar Books, 2012); Neera Chandoke, ‘Modi’s Gujarat and Its Little Illusions’ (2012) 47(49) Economic and Political Weekly 10; Indira Hirway, Amita Shah and Ghanshyam Shah (eds.), Growth or Development: Which Way Is Gujarat Going? (Oxford University Press, 2014). 69 See Ornit Shani, Communalism, Caste and Hindu Nationalism: The Violence in Gujarat (Cambridge University Press, 2007); K. Balagopal, ‘Reflections on Gujarat Pradesh of Hindu Rashtra’ (2002) 37(22) Economic and Political Weekly 2117. 70 See A. G. Noorani, ‘Modi and Zionism’ Frontline, 4 August 2017 www.frontline.in/thenation/modi-amp-zionism/article9774462.ece>; Satadru Sen, ‘Fascism without Fascists? A Comparative Look at Hindutva and Zionism’ (2015) 38(4) South Asia: Journal of South Asian Studies 690. 71 See generally Dorothy M. Figueira, Aryans, Jews, Brahmins: Theorizing Authority through Myths of Identity (SUNY Press, 2002); Tufail Ahmad, ‘Abrahamic Hindutva: The Religious Fundamentalism That Is a Threat to India’s Tolerant and Pluralist Civilisational Order’ Firstpost, 18 July 2017 www.firstpost.com/india/abrahamic-hindutva-the-reli gious-fundamentalism-that-is-a-threat-to-indias-tolerant-and-pluralist-civilisationalorder-2–3825669.html>; S. P. Udayakumar, ‘Historicizing Myth and Mythologizing History: The “Ram Temple” Drama’ (1997) 25(7–8) Social Scientist 11; Bharat Wariavwalla, ‘Religion and Nationalism in India: Ram the God of the Hindu Nation’ (2000) 89(357) Round Table: Commonwealth Journal of International Affairs 593; Christophe Jaffrelot, ‘Hindu Nationalism and the (Not So Easy) Art of Being Outraged: The Ram Setu Controversy’ (2008) 2 South Asia Multidisciplinary Academic Journal (online) ; Hartosh Singh Bal, ‘Spare Me the Good Hindu: The Hindu

Gujarat 2002 137 Gujarat has been called the ‘Hindutva laboratory’ that executed the pogrom as an experiment to teach Muslims in India ‘a lesson’.72 Modi and many of his ministers in Gujarat have been named in independent fact-finding reports,73 survivor testimonies,74 revelations by public servants about state complicity,75 undercover investigations by journalists,76 and activist memoirs.77 Statements by the Supreme Court of India have condemned the state government for ordering the police to step back and let the mobs rein free.78 Many right-wing leaders (including Modi) have been recorded on camera instigating the mobs with their inflammatory anti-Muslim speeches, and justifying the pogrom by citing the Godhra train-burning incident of 27 February 2002 that killed 58 kar sevaks (Hindu pilgrims) as legitimate cause for this pratikriya (retributive action) by hurt, victimized, and angry Hindus.79 Several incendiary flyers, leaflets, and pamphlets were circulated by the militant mobs as they ran rampage through the killing streets of Ahmedabad. One of these, signed by a leader of the Vishwa Hindu Parishad (World Hindu Council), a close ideological ally of the BJP, carried the following verse: The volcano which was inactive has erupted It has burnt the arse of miyas [Muslim men] and made them dance nude We have untied the penises that were tied till now We have widened the tight vaginas of the bibis [Muslim women]80 The pogrom took place during Modi’s time in office, and arguably, the violence consolidated the Hindu vote in Modi’s favour, that led to him winning four

vs Hindutva Battle Is Meaningless in Shaping Our Politics’ Caravan, 6 July 2018 www.car avanmagazine.in/politics/hindu-vs-hindutva-battle-meaningless-in-shaping-our-politics>. 72 Howard Spodek, ‘In the Hindutva Laboratory: Pogroms and Politics in Gujarat, 2002’ (2010) 44(2) Modern Asian Studies 349. 73 Concerned Citizens Tribunal, Crime Against Humanity, 3 vols (Sabrang, 2002) www. sabrang.com/tribunal/index.html>. 74 Farah Naqvi et al., ‘The Survivors Speak: How Has the Gujarat Massacre Affected Minority Women’ Outlook, 2 May 2002 www.outlookindia.com/article.aspx?215433>. 75 Hindu, ‘I Was Warned Against Deposing: Sreekumar’ 20 August 2009 www.thehindu. com/news/national/article5896.ece>; Times of India, ‘Gujarat IPS Officer Sanjeev Bhatt Who Took on Narendra Modi Arrested’ 1 October 2012 . 76 Tehelka, ‘The Truth: Gujarat 2002’ 2 November 2007 ; Ayyub, Gujarat Files. 77 Setalvad, Foot Soldier of the Constitution: A Memoir (LeftWord, 2017). 78 Zahira Habibulla Sheikh and Another v. State of Gujarat and Others, Appeal (crl.) 446–449 of 2004 (12 April 2004) . 79 Rakesh Sharma’s 2002 documentary film Final Solution carries footage of several such hate speeches by Narendra Modi and many others. 80 Quoted in Tanika Sarkar, ‘Semiotics of Terror’ (2002) 37(28) Economic and Political Weekly; Megha Kumar, Communalism and Sexual Violence: Ahmedabad since 1969 (Tulika, 2017).

138  Oishik Sircar consecutive state elections in Gujarat as CM since 2002.81 In 2014, Modi was elected as the prime minister of India through a media-managed election campaign that wedded soft Hindutva with robust neoliberal developmentalism.82 His election saw a clear majority emerge for a single party for the first time in independent India since 1984.83 During the run-up to his prime ministerial campaign, in 2012 Modi was exonerated – given a ‘clean chit’84 – by a Supreme Court of India–appointed Special Investigation Team (SIT), which was tasked with specifically looking into three major massacres committed during the pogrom. The independence of this body has been questioned for procedural, investigative, and ethical lapses.85 In 2017, a protest petition by Zakia Jafri, a victim-survivor, against the SIT’s exoneration of Modi was dismissed by the Gujarat High Court, upholding the clean chit.86 In response to this judicial exoneration of his accountability as head of state, Modi had tweeted ‘Satyameva Jayate’, or ‘truth alone triumphs’,87 a Sanskrit expression from an ancient Hindu religious text (the Mundaka Upanishad) that has been

81 Studies have established that riots that precede elections result in an ‘increase [in] the vote share of the Hindu nationalist Bharatiya Janata Party by at least 5 percentage points.’ Sriya Iyer and Anand Shrivastava, ‘Religious Riots and Electoral Politics in India’ (2018) 131 Journal of Development Economics 104. See also Sanjay Kumar, ‘Gujarat Assembly Elections 2002: Analysing the Verdict’ (2002) 38(4) Economic and Political Weekly 270; Paul D. Kenny, Populism and Patronage: Why Populists Win Elections in India, Asia, and Beyond (Oxford University Press, 2017). 82 See Paula Chakravartty and Srirupa Roy, ‘Mr. Modi Goes to Delhi: Mediated Populism and the 2014 Indian Elections’ (2015) 16(4) Television & New Media 311; Ronojoy Sen, ‘Narendra Modi’s Makeover and the Politics of Symbolism’ (2016) 9(2) Journal of Asian Public Policy 98; Tommaso Bobbio, ‘Never-Ending Modi Hindutva and Gujarati Neoliberalism as Prelude to All-India Premiership?’ (2013) 67 Focaal: Journal of Global and Historical Anthropology 123. 83 See Priya Chacko and Peter Mayer, ‘The Modi Lahar (Wave) in the 2014 Indian National Election: A Critical Realignment?’ (2014) 49(3) Australian Journal of Political Science 518; Edward Simpson, ‘The State of Gujarat and the Men without Souls’ (2006) 26 Critique of Anthropology 331. 84 Times of India, ‘Narendra Modi Gets Clean Chit in SIT Report on Gujarat Riots’ 10 April 2012 . 85 Arshu John, ‘The Professional Fortunes of Cops, Bureaucrats and SIT Members Associated with the 2002 Godhra Investigation’ Caravan, 22 September 2017 www.caravanmaga zine.in/vantage/postings-cops-bureaucrats-sit-members-godhra-2002-investigation>. 86 Indian Express, ‘2002 Riots Case: Gujarat High Court Rejects Zakia Jafri’s Plea, Upholds Clean Chit to Narendra Modi, Others’ 6 October 2017 ; Vinod K. Jose, “ ‘There Was No Question of Help’: Zakia Jafri on the Gulburg Society Massacre” Caravan, 5 October 2017 www.caravanmagazine.in/vantage/zakia-jafri-gulburg-society-massacre-modi-2002>. 87 Indian Express, ‘Truth Alone Triumphs, Tweets Modi after SC Relief in Gujarat Riots Case’, 9 January 2014

Gujarat 2002 139 secularized to accompany independent India’s national emblem, and that serves as a foundational idea of Indian constitutionalism.88 In an interview with the news agency Reuters in 2013, Modi likened his feelings for the victims to the sadness that a person in a car would feel if the driver ran over a puppy.89 Regarding continuing to fund relief camps for the Muslims displaced by the pogrom, Modi had expressed eugenicist panic about how they could turn into ‘child producing centres’ that will breed more Muslims.90 Indeed, the possibility that Modi would express any remorse at all for the pogrom had, by 2013, become so absurd that one news outlet spoke of it in the form of an April Fool’s day joke.91 His standard refrain whenever asked about the 2002 violence has been to say, ‘Why even talk about 2002? . . . It’s the past. What does it matter?’92 It is Modi’s and the Hindu Right’s rhetoric of “let’s move on” that has animated much of the dominant legal and aesthetic discourse about how the Gujarat pogrom is collectively remembered. This rhetoric, however, is not reflective of a practice of denial, but one which, even while acknowledging the horror of the pogrom, either traces everything about it back to what it believes to be its originary cause, that is, Godhra, or relegates “all violence to an amorphous ‘politics’ ”.93 Such relegation works to guard against ‘summoning a past that still vividly lurks in the present’.94 As Ghassem-Fachandi notes: Such interpretations elide the more disturbing realization that not only do political parties manipulate constituencies for electoral gain, but people themselves become complicit in this by inhabiting representations, participating in acts and thoughts that have effects beyond the mere political calculations of those who organize violence. The political machinations of the pogrom reveal only half the story.95

88 See Bibek Debroy, ‘Why State Emblem “Satyameva Jayate” Has Vanished Both Literally & Symbolically’ Economic Times, 4 June 2012 . 89 Ross Colvin and Sruthi Gottipati, ‘Interview with BJP Leader Narendra Modi’ Reuters, 12 July 2013 . 90 Narendra Modi, ‘Should We Run Relief Camps? Open Child Producing Centres?’ Outlook, 30 September 2002 www.outlookindia.com/article/should-we-run-relief-campsopen-child-producing-centres/217398>. 91 Firstpost, ‘Here It Comes: An Apology from Modi for Gujarat Riots’ Firstpost, 1 April 2013 www.firstpost.com/politics/here-it-comes-an-apology-from-modi-for-gujarat-riots-68 0400.html>. 92 Quoted in William Dalrymple, ‘Narendra Modi: Man of the Masses’ New Statesman, 12 May 2014 www.newstatesman.com/politics/2014/05/narendra-modi-man-masses>. 93 Parvis Ghassem-Fachandi, Pogrom in Gujarat: Hindu Nationalism and Anti-Muslim Violence in India (Princeton University Press, 2012) 2. 94 Ibid. 2–3. 95 Ibid. 3.

140  Oishik Sircar I have used the term pogrom to characterize the 2002 Gujarat violence. Many others have used riot or genocide. While these words are overlapping categories that describe forms of collective or mass violence, in the specificities of their methods and objectives they can be differentiated. A riot is spontaneous violence provoked by a situation or an event which is not pre-planned. A riot may or may not target a specific group. A genocide is a planned offensive that has the clear aim of eliminating an identifiable racial group or tribe, which may or may not have been aided by the state. While the violence of Gujarat 2002 carried aspects of both, it is most appropriately described as a pogrom, which is planned, aimed at destroying an identifiable group of people and their properties and aided by the state through acts of omission and commission.96 These terms carry derivative valence, and enable making Gujarat 2002 intelligible to a primarily international audience for whom the Holocaust is the most identifiable point of historical reference. Riot – ‘a euphemism for communal murder’ as M.G. Vassanji puts it97 – has remained the preferred term in India, given that it is the only way collective violence is defined in the criminal law. In Gujarat, I seldom heard these English terms being used to speak of 2002. Some of the vernacular terms used were dhamaal, hullad, aandhi, tofan, and qayamat. I point to this politics of naming not only because it provides a sense of the difficulty in drawing equivalences between the English and vernacular expressions through translation; but also because there is always a tendency in written, photographic, and cinematic accounts to spectacularize the event, to render it exceptional, to use the universal force of a term to capture the phantasmagoria of violence. In doing so – despite all good intentions – we risk taking attention away from the quotidian practices of Hindu nationalism – within families to state institutions – that morally legitimized the killings of Muslims in 2002, and continues to feed a scary culture of state impunity. The danger is that such representations of the violence can potentially either set in a sense of fatigue even amongst the most compassionate, or as Bhrigupati Singh notes: ‘Potential consumers of such images will then increasingly require ever more detail in words and images of hurt and suffering to authenticate reality.’98

A charred roseleaf In 2002, Zakia Jafri used to live in Gulberg Society, a lower- to middle-class Muslim residential complex in Chamanpura. A visit to its abandoned ruins was the last destination on my human rights tourism agenda for the day. Imtiaz Khan, who Farooq picked up on the way, was also a resident of Gulberg Society. He had escaped death but had seen his family members and many residents being burnt

96 For a discussion on conceptual distinctions and similarities between these terms, see Paul R. Brass (ed.), Riots and Pogroms (Macmillan, 1996). 97 M.G. Vassanji, The Assassin’s Song (Canongate Books, 2007) 264. 98 Bhrigupati Singh, ‘One week in Aman Chowk’ (2002) 517 Seminar 67–72.

Gujarat 2002 141 alive, hacked to death or raped on February 28, 2002, when armed mobs numbering in thousands, attacked the Muslim majority residential colony. Imtiaz has been a key witness for the prosecution in the resulting criminal trials related to the massacre, which at that time, were due to resume in December 2014. I felt a sense of discomfort about Imtiaz accompanying us to Gulberg. Of course, there couldn’t be a better guide for me, as Farooq had suggested. However, it felt parasitic to take him away from work on a weekday and to make him recollect memories of trauma for a complete stranger. I expressed my concern to Farooq. He assured me that I had nothing to worry and that Imtiaz was always willing to spare time for those who wanted to know about what really happened at Gulberg. I was not a journalist, I told him when we met, and clarified that I was not out to uncover any hidden truths. In response, Imtiaz offered a knowing smile. Much like Farooq, Imtiaz was comforting and friendly. He looked my age, mid-30s – though I never asked. He was married, with two children, and lived in a different part of the city. He mentioned nonchalantly that he has gotten used to living with a humming headache since that day in 2002 – and regularly wakes up in the middle of the night when memories flash as nightmares. He was the first victim-survivor of the pogrom I was meeting on this trip. The last time I was in Ahmedabad in April 2002, I spent many weeks at the ShahAlam dargah (a mosque which was converted into a makeshift camp for the displaced) collecting testimonies as part of a fact-finding team of lawyers from Delhi. I knew about the massacre at Gulberg Society then, but never managed to find time, or the courage to see any more of the devastation in Ahmedabad. Gulberg – meaning roseleaf – was built in the 1960s. As Amrita Shah, a recent chronicler of the city, has written in Ahmedabad: A City in the World: ‘[it was] . . . a genteel complex of bungalows generously spaced out with spreading trees and a high surrounding wall giving it a measure of privacy and exclusion rare in the shabby neighbourhood.’99 One of its well-known residents was Ehsan Jafri – Zakia’s husband – a former Congress parliamentarian, a socialist, trade unionist, and poet. While the society was under siege on February 28, 2002, many Muslims had sought refuge in Jafri’s home, hopeful that given his stature they would be safe. As has been recorded in many independent fact-finding reports, Jafri made several calls to high officials in the government to send police protection. The Police Commissioner is reported to have come in the morning, and promised that he would send his forces. But they did not intervene when the armed mobs broke through the walls. Human Rights Watch’s report ‘We Have No Orders to Save You’: State Participation and Complicity in Communal Violence in Gujarat details the active role that the police played in enabling the mobs to carry out the violence. Jafri’s calls to Narendra Modi also yielded no response. A total of 69 people were killed in the massacre, the second largest of all the killings in the

99 Amrita Shah, Ahmedabad: A City in the World (Bloomsbury, 2015) 18.

142  Oishik Sircar pogrom. The mob used weapons ranging from stones and bricks to swords and iron rods. Gas cylinders were used to set the houses inside Gulberg Society on fire. The attacks on Muslim women took especially macabre forms – many were gang-raped, their breasts and vaginas mutilated, pregnant women’s wombs split open, and then thrown into fire.100 Jafri was murdered. As the report Crimes Against Humanity by the Concerned Citizens Tribunal notes: ‘He was stripped, paraded naked [. . .] His fingers were chopped off and he was paraded around in the locality, badly injured. Next his hands and feet were severed. He was then dragged, a fork-like instrument clutching his neck, down the road, before being thrown into fire.’101 Zakia Jafri, Ehsan’s 77-year-old widow, has carried on a valiant legal battle since 2002 – with support from activist and human rights defender Teesta Setalvad to hold Modi criminally and administratively culpable, as the head of the state, on the ground of chain of command responsibility. The Gujarat judiciary has time and again come under great criticism for being politically biased against the Muslim victims, and for colluding with the state administration to safeguard leaders of the Hindu Right who led and instigated the murderous mobs. Two key trials were ordered by the Supreme Court of India (SC) to be held in Mumbai, to avoid subversion of justice by the Gujarat government. The biased operation of the Gujarat judiciary was further reflected when Zakia’s protest petition against the SC appointed Special Investigation Team for exonerating Modi was rejected by the Ahmedabad Metropolitan Court in December 2013. The Gujarat High Court heard an appeal against this decision in September 2015.102 In the run up to the appeal, the Modi government began intimidating and harassing Teesta Setalvad and Citizens for Justice and Peace, the organization that she had cofounded with her husband Javed Anand in 2002 to provide legal aid to the victims of the Gujarat pogrom. Setalvad and Anand ‘faced court proceedings on fabricated charges of embezzlement, misuse of funds and “anti-national propaganda”.’103 They averted an arrest when the Bombay High Court granted anticipatory bail in August 2015. A decision on the appeal is yet to be delivered. A separate criminal trial for the Gulberg Society massacre – in which Imtiaz was among the 338 witnesses who testified – began in 2009, and ended in September 2015. The verdict by a special court was delivered in June 2016 in which 24 of the accused were convicted, and 36 acquitted. Zakia Jafri had expressed her disappointment with the judgment and said that she will continue to pursue

100 Megha Kumar, Communalism and Sexual Violence: Ahmedabad since 1969 (Tulika, 2017). 101 Concerned Citizens Tribunal, Crimes Against Humanity: An Enquiry into the Carnage in Gujarat, Volume I (Communalism Combat, 2002) 27. 102 Rupam Jain Nair, ‘Zakia Jafri Fights Narendra Modi in ‘Final’ Court Battle Over Deadly Riots’ Reuters, 22 September 2015, http://in.reuters.com/article/narendramodi-zakiaehsanteesta-riots-idINKCN0RL2G720150922. 103 Front Line Defenders, Annual Report 2016 (Dublin: International Foundation for the Protection of Human Rights Defenders, 2016) 14.

Gujarat 2002 143 other legal options to indict Modi.104 Her son Tanvir wondered how the court thought only 24 people could have killed 69 people and burnt down an entire housing complex. In reconstructing its account of the events from February 28, 2002, the judgment said that the mob that attacked Gulberg Society turned violent because Ehsan Jafri provoked it by opening fire. None of the independent fact-finding reports found evidence to such effect. The judgment dismissed a contention of the prosecution which argued that the Gulberg Society massacre be considered a crime of conspiracy, thus, not planned and pre-meditated.105

Violating the solitude Gulberg Society was located on a very noisy and crowded road. Given that the criminal trials related to the massacre were still proceeding, I expected that the site would be guarded by the police. There were none. Embedded in the wall to the left of the entrance, camouflaged in the yellow paint of an advertisement, was a notice from the Gujarat government which declared that this was police sampatty (property). The notice carried the official insignia of the Indian state (Figures 6.1 and 6.2). The two photographs below were not taken when I first entered Gulberg Society. I was hesitant to pull out my camera. It was only after we had spent a while walking through the desolate houses within the compound that I asked for permission to take photographs. I was perspiring profusely – and held the camera in one hand, as I wiped my brow with a handkerchief in the other. My fingers were greasy with sweat, and I ended up touching the lens repeatedly. The photos were originally taken in colour. However, even in the black-and-white versions reproduced here, readers might notice a smudge on the right-hand side corner of some of the photos. While the smudge speaks of the inadequacy of the quality of the photos, I feel it also speaks of the inadequacy of a photographer to record visual testimonies of trauma. All recordings of testimony – in text, image, or sound – are always already contaminated by the technology of the medium, and the perspective of the medium user. In the time that we spent inside the compound, I never took out my diary to take notes – it felt disrespectful to not look at Imtiaz when he spoke to me about what had happened. His descriptions were monotonous and chillingly matter-offact. I did not see him flinch as he offered a clinical narration of the events. These were much more detailed than those recorded in the fact-finding reports that

104 A plea by Zakia Jafri against the Special Investigation Team’s exoneration of Narendra Modi is expected to be heard by the Supreme Court in January 2019. NDTV, ‘2002 Gujarat Riots: Top Court Defer’s Zakia Jafri’s Plea Hearing in Gujarat Riots till January’ 3 December 2018 www.ndtv.com/india-news/2002-gujarat-riots-supreme-court-defers-plea-hearingof-zakia-jafri-widow-of-ehsan-jafri-in-gujarat-1956956>. 105 Jahnavi Sen, ‘Gulberg Society Verdict: Of 24 Convicted, 11 Imprisoned for Life; Timeline of Events’ The Wire, 17 June 2016 .

Figure 6.1  The entrance to Gulberg Society Source: Photo by Oishik Sircar.

Figure 6.2  Police sampatty (property) Source: Photo by Oishik Sircar.

Gujarat 2002 145 I had read. For every killing that he narrated, he pointed out the exact location of its occurrence. I clicked photographs during the silences in between, as we walked from one a posteriori scene of violence to another (Figures 6.3 and 6.4). I did not have any presuppositions about what I wanted to capture in my photographs. My shots were not organized for a photo essay. It was something I thought I should do as a researcher. The photos were meant to be a visual record for my memory’s sake. When I looked at them much later, I realised, that there was one compelling strain running through all of them – which was that of a haunting emptiness. Gulberg had no human inhabitants any longer – it required the stories of someone like Imtiaz to frame the human emptiness and fill it with meaning. Without the stories, the photos remain ordinary images of abandoned houses where stray dogs now lived, barking disappointment at our presence. But even without the stories, the affect of abandonment inside Gulberg generated an intensity that only my body bears testimony to. Words or images are inadequate records. After he finished, Imtiaz and Farooq sat on the steps to the entrance of what used to be his home. They asked me to take my time and look around. The quietness that descended – with the dogs also retreating to their dens – as I walked through the empty buildings felt like what John Berger has evocatively called ‘the

Figure 6.3  A posteriori scenes of violence 1 Source: Photo by Oishik Sircar.

146  Oishik Sircar

Figure 6.4  A posteriori scenes of violence 2 Source: Photo by Oishik Sircar.

accumulated absence of sound.’106 The silence defeated a sense of growing sadness and anger that I was keeping captive inside me. The anger was disciplined to submission when it confronted silence, while the sadness sublimated. Gulberg Society was covered in unruly foliage. Ehsan Jafri’s home had a huge creeper that had covered an entire side of the building. The pink flowers on the creeper’s green expanse offered comforting relief from the burnt surfaces of the buildings. The silence and the foliage had turned Gulberg into a sanctuary for its dead (Figure 6.5). If there was one place the dead might be able to rest, it was possibly here. Not in the courts, not in the solidarity marches and candlelight vigils, and certainly not in the PhD thesis I was writing at that time. To mark 10 years of the pogrom in 2012, Citizens for Justice and Peace brought together many civil society groups to organize a memorial meeting at Gulberg Society. On our way out Imtiaz pointed at a worn-out, dust-covered poster that was put up during that meeting. On the map of Gujarat, it depicted the locations where mosques and dargahs were desecrated between 2002 and 2007, and the numbers of Muslims who had gone missing since the pogrom. It was a strange map – it had no numbers, and thus carried no evidentiary testament. Perhaps, it did not wish to reduce violence to statistics (Figure 6.6).

106 John Berger, A Painter of Our Time (Writers and Readers Publishing Cooperative, 1976) 9.

Figure 6.5  Silence and foliage Source: Photo by Oishik Sircar.

Figure 6.6  A map with no numbers Source: Photo by Oishik Sircar.

148  Oishik Sircar There has been a talk of turning Gulberg into a Museum of Resistance to honour the lives of the dead, and to document the struggles of the living for justice. Imtiaz disagreed with the idea. He said that he did not want to remember the dead by museumizing them. ‘Building a museum would mean that we will never be able to come here to spend time with our dead in silence,’ he said. I wondered, whether through my photographs I was contributing to an archive of museumization of Gulberg’s silent traumascape; that I was, to borrow from Milan Kundera’s comment on Kafka’s writings, violating the solitude.107 I could not resist taking a last photograph much against Susan Sontag’s belief that ‘there is no final photograph’ (Figure 6.7).108 As we were about to exit, I saw a cart of a local music band with four loudspeakers fitted on top parked in front of Gulberg’s tallest building. The juxtaposition of the loudspeakers and the silent monument was a strange frame of contradictions. The dead must be allowed to rest in peace, but even the loudest of screams from victim-survivors and activists

Figure 6.7  ‘There is no final photograph’ Source: Photo by Oishik Sircar.

107 Milan Kundera, The Art of the Novel, translated from the French by Linda Asher (Faber and Faber, 2005) 111. 108 Susan Sontag, ‘Photography: A Little Summa’ in Susan Sontag (ed.), At the Same Time: Essays and Speeches (Farrar, Straus and Giroux, 2007) 127.

Gujarat 2002 149 have not been able to disturb the growing cultures of impunity for mass crimes, and violence against the marginalized, that the Indian state continues to enjoy. As we left the compound in Farooq’s auto-rickshaw, I looked back and spotted the Gujarat government’s notice stating that Gulberg was police property. The state had already laid claim to Gulberg’s silence.

Remembering, Mourning I have seldom thought about silence with much seriousness, until the point at which I stepped into Gulberg Society. Much after the visit, I was reminded of this quote from Amitav Ghosh’s novel The Shadow Lines: The enemy of silence is speech, but there can be no speech without words, and there can be no words without meanings – so it follows, inexorably, in the manner of syllogisms, that when we try to speak of events of which we do not know the meaning, we must lose ourselves in the silence that lies in the gap between words and the world. This is a silence that is proof against any conceivable act of scorn or courage; it lies beyond defiance – for what means have we to defy the mere absence of meaning? Where there is no meaning, there is banality, and this is what this silence consists in, that is why it cannot be defeated – because it is the silence of an absolute, impenetrable banality.109 “Breaking the silence” of impunity is understood as a standard objective of any human rights or justice-seeking enterprise. The work of a human rights defender, campaigner, activist, or advocate is considered to be one that verbalizes and visualizes the unheard and unseen voices and experiences of the violated. The recording of testimony in fact-finding reports, the oral presentation of witness accounts in tribunals, public hearings, or courts, the photographic or video documentation of atrocity on social and news media, carry a moral charge that is meant to challenge public apathy, appeal to the global publics of compassion, as well as demand state accountability. The material that constitutes written and imagistic records of human rights violations are accorded the status of evidence, and thus by extension, truth. There is a sense of normative good attached to such material, and those producing that material – the organizations, or the persons – carry a moral heft. The act of breaking silence is an interpretive practice in which we – activists, researchers, journalists, artists – who take on the persona of the human rights worker treat silence as an empty vessel and fill it with our words, images, or sounds. Whatever be its form – legal, literary, visual – interpretation, as we know, is an activity fraught with the possibility of exacerbating the very violence that we claim to seek justice for. When confronted with silence, the practice of interpretation faces an ethical crisis.

109 Amitav Ghosh, The Shadow Lines (Penguin, 2008) 240.

150  Oishik Sircar In a sequence of frames in Art Speigleman’s graphic work of non-fiction Maus, the narrator Art meets with his therapist and speaks of how narratives always work towards filling in the absences left in memorial reconstructions of events of mass violence. The therapist says: ‘the victims who died can never tell THEIR side of the story, so it is better not to have any more stories.’ To this, Art responds: ‘Uhuh. Samuel Beckett once said: “Every word is like an unnecessary stain on silence and nothingness”.’ This exchange is followed by a frame in which there is no verbal dialogue. In the next frame Art adds: ‘On the other hand, he SAID it.’ And the therapist replies: ‘He was right. Maybe you can include it in your book.’110 Is silence, then, an absence? Is it the other of sound? Or is silence as complicatedly constructed as sound? As I stepped into Gulberg Society with Farooq and Imtiaz, I did not know what I would encounter. But my interpretive sensibilities were acutely heightened. I had to make meaning of what I would see, hear, feel. In a sense, that my interpretive orientation might well have been an unnecessary stain on the silence and nothingness of the space, was not something that I was willing to consider. As a researcher, what I was driven by an interpretive lust with immense capacity to colonise and violate the silence of the space. When I went to Gujarat in 2002 as a student volunteer to work at the Shah Alam refugee camp in Ahmedabad and conduct interviews as part of yet another fact-finding team – as one of the many voyeuristic tourists deliciously consuming the trauma of others so that I could live to tell the tale of human rights exploits– I experienced something that changed my perspective of justice and healing forever. At the end of a very taxing day of recording survivor testimonies, I was waiting for my colleague at the entrance of Shah Alam when I heard the laughter of children coming from within the dargah. In the midst of the injured and maimed, this sounded otherworldly. I followed the sound to the central courtyard of the dargah and saw a huge group of children (many of them orphaned) along with some very energetic members from a group called Play for Peace standing in a circle, holding hands and animatedly singing a song called Bajra: about the everyday practice of grinding the Bajra (millet) to make chapatis (flat breads) at home. The chorus of so many children laughing and singing together was for that particular moment a magical feeling.111 Their laughter was infectious – everyone around joined the cacophony. The circle marked the formation of a very different kind of community: one joined in sorrow through laughter. In the noncompetitive games, the children who made mistakes were never “out”, rather they occupied pride of position “in” the circle to lead the game. The very serious looking, serious sounding, serious work that many bourgeoisie volunteers like me were doing looked poorly pretentious in the face of songs and games that could evoke spontaneous laughter in children who had been orphaned, seen their

110 Quoted in James E. Young, At Memory’s Edge: After-Images of the Holocaust in Contemporary Art and Architecture (Yale University Press, 2000) 31. 111 Federico Campagna, Technic and Magic: The Construction of Reality (Bloomsbury, 2018).

Gujarat 2002 151 family members brutally raped and killed or “disappeared”. I never knew that the power of collective laughter could not only heal but also arrest cycles of violence. This was an equally powerful way to mourn. Despite my privileged position of an outsider, who will eventually go back to safer quarters, playing with the children, and spending those few days in Ahmedabad laughing with them gave me a contingent sense of our shared commitment to mourning in precarious times: be it through crying, or laughter. Beyond what the legal processes will achieve, while our struggles against state impunity and the spectacular onslaught of neoliberalism continue, we need to think of ways in which we can use the powers of mourning to mobilize political communities of human beings who are joined through shared feelings of loss and vulnerability, to forge ethical relationships that connect us with those whose lives were destroyed: not through sentimentality, but solidarity.112 Gujarat 2002 is paradigmatic of the brutality that a majoritarian secular democracy is capable of. We cannot undo this truth even if Modi is convicted or the BJP is defeated in the next general elections five years from now. We can only hope to mourn together – in silence and in laughter – and ensure that we never forget. As Jacqueline Rose writes: ‘Really to forget something, you have to forget that you have forgotten. You have to be ‘forgetful of forgetfulness’.’113 This will be our lived truth – refracted, inadequate.

112 I draw on Judith Butler’s work for this articulation. Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso, 2004); Judith Butler, Zeynep Gambetti, and Leticia Sabsay (eds.), Vulnerability in Resistance (Duke University Press, 2016). 113 Jacqueline Rose, On Not Being Able to Sleep: Psychoanalysis and the Modern World (Vintage, 2004) 7.

7 Lesbian, gay, bisexual and transgender human rights in India From Naz Foundation to Navtej Singh Johar and beyond Robert Wintemute Introduction “Justice delayed” is not always “justice denied”. In some cases, it is much better than “no justice at all”. The Supreme Court of India’s reading down of s. 377 of the Indian Penal Code (IPC, prohibiting “carnal intercourse against the order of nature”) on 6 September 2018 is an excellent example of “much better late than never” and, perhaps, “could not have happened sooner”. The litigation that led to the judgment in Navtej Singh Johar & Others v. Union of India1 began as Writ Petition No. 7455, filed in the Delhi High Court by the Naz Foundation in December 2001.2 Nearly 17 years later, after two decisions of the Delhi High Court (DHC), and five decisions of the Supreme Court of India (SCI), the criminal law that continued to stigmatise more lesbian, gay, bisexual and transgender (LGBT) persons than any other in the world, ceased to apply to consenting adults acting in private. This chapter will describe the sequence of judgments that preceded Johar, analyse the SCI’s reasoning in Johar, and consider the potential impact of Johar, both on the criminal law beyond India, and in India beyond the criminal law.

Naz Foundation in the Delhi High Court The Naz Foundation’s writ petition in 2001 stressed the harmful effects of s. 377 on public health, i.e., on the non-governmental organisation’s work to teach “men who have sex with men” (“MSM”) how to protect themselves against HIV infection. The writ petition argued that “unless the self-respect and dignity of sexuality minorities is restored by doing away with discriminatory laws such

1 Criminal original jurisdiction, Writ Petition (Criminal) No. 76 of 2016, www.sci.gov.in/ supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf. 2 See https://indianexpress.com/article/explained/many-ups-and-downs-in-battle-against-ipcsection-377-homosexuality-lgbtq-5019604; https://qz.com/india/1379620/section-377a-timeline-of-indias-battle-for-gay-rights. The first petition against s. 377, filed by the NGO ABVA in 1994, was dismissed in 2001. See http://aidsbhedbhavvirodhiandolan.blogspot. com/2018/09/reminiscing-abvas-struggle-for-gay.html

Lesbian, gay, bisexual, transgender rights 153 as Section 377, it will not be possible to promote HIV/AIDS prevention in the community – the consequences of which are disastrous”.3 On 2 September 2004, the DHC dismissed the petition because the Naz Foundation did not have standing to challenge s. 377: “[W]e find there is no cause of action as no prosecution is pending against the petitioner. Just for the sake of testing the legislation, a petition cannot be filed.” On 3 February 2006, the SCI disagreed about the need for a prosecution,4 and sent the case back to the DHC: “[T]he matter does require consideration and is not of a nature which could have been dismissed on the ground aforestated.”5 After a 12-day hearing in the autumn of 2008,6 the DHC (Chief Justice Ajit Prakash Shah and Justice S. Muralidhar) published its judgment on 2 July 2009.7 The DHC noted that the Union of India had contradicted itself: “The Ministry of Home Affairs (MHA) sought to justify the retention of Section 377 IPC, whereas the Ministry of Health & Family Welfare insisted that continuance of Section 377 IPC has hampered the HIV/AIDS prevention efforts.”8 Civil society was represented by “Voices against Section 377 IPC . . . a coalition of 12 organisations that represent child rights, women’s rights, human rights, health concerns as well as the rights of same sex desiring people including those who identify as [LGBT]”.9 Voices “documented instances of exploitation, violence, rape and torture suffered by LGBT persons”.10 The DHC first considered “the right to live with dignity and the right of privacy”, two dimensions of Article 21 of the Constitution of India (no deprivation of “life or personal liberty except according to procedure established by law”): “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 . . . [and] denies a gay person a right to full personhood which is implicit in notion of life under Article 21.”11 The DHC then turned to Article 14 (“equality before the law” and “equal protection of the laws”): Section 377 . . . is facially neutral . . ., but in its operation it does end up unfairly targeting a particular community. . . . [The] sexual acts which are

  3 Writ Petition, para. 5.   4 The European Court of Human Rights did not require a prosecution in Dudgeon v. United Kingdom (22 October 1981), para. 41. The US Supreme Court required a prosecution in Lawrence & Garner v. Texas, 539 U.S. 558 (2003).  5 Koushal v. Naz Foundation (11 December 2013), https://indiankanoon.org/doc/58730 926, para. 5.   6 See http://orinam.net/content/wp-content/uploads/2012/04/Naz_SC_Transcript_2012_ final.pdf (Chronology of Dates, p. 3).  7 See Naz Foundation v. Government of NCT of Delhi, https://indiankanoon.org/doc/ 100472805.   8 Ibid., para. 11.   9 Ibid., para. 19. 10 Ibid., para. 21. 11 Ibid., para. 48.

154  Robert Wintemute criminalised are associated more closely with . . . the homosexuals as a class. Section 377 . . . has the effect of viewing all gay men as criminals. . . . [T]he discrimination caused to MSM and gay community is unfair and unreasonable and, therefore, in breach of Article 14.12 As for Article 15 (no discrimination “on grounds only of religion, race, caste, sex, place of birth”), the DHC ruled that “sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15”, including “discrimination of one citizen by another in matters of access to public spaces”.13 The DHC did not find it necessary to deal with Article 19, including freedom of expression, and instead left the question open.14 In conclusion, the DHC declared that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. . . . By ‘adult’ we mean everyone who is 18 years of age and above.”15 The DHC’s judgment was celebrated in India and around the world. On the map of criminalising countries, India’s colour was changed. But were these celebrations premature? For a non-Indian observer, it was not obvious how a judgment of the DHC (which has jurisdiction over only around 2% of India’s population) could settle the question of the constitutionality of s. 377 for the entire country. What if one of the 23 other High Courts (e.g., the Allahabad, Bombay, Calcutta or Madras High Court) disagreed with the DHC’s conclusion? Absent a ruling by the SCI, there would have been doubt even if there had been no appeal. The (divided) Union of India decided not to appeal, which in some legal systems would have ended the case, because no other person would have had standing to defend the criminal law.16 But Suresh Kumar Koushal and another (“citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian society”)17 were allowed to appeal to the SCI, through a special leave petition which became a civil appeal, even though they had not participated in the proceedings before the DHC.18

Koushal in a two-judge Supreme Court of India After a 15-day hearing in February and March of 2012, a two-judge bench of the SCI (Justice G.S. Singhvi and Justice Sudhansu Jyoti Mukhopadhaya) published its judgment on 11 December 2013. The SCI concluded that s. 377 “does not

12 13 14 15 16 17

Ibid., paras. 94, 98. Ibid., para. 104. Ibid., para. 126. Ibid., para. 132. See, e.g., Hollingsworth v. Perry, 570 U.S. 693 (2013). Koushal v. Naz Foundation (11 December 2013), https://indiankanoon.org/doc/58730926, para. 15. 18 See www.thehindu.com/features/metroplus/society/it-is-like-reversing-the-motion-of-theearth/article5483306.ece; Tarunabh Khaitan, “Koushal v Naz: Judges Vote to Recriminalise Homosexuality”, (2015) 78 Modern Law Review 672, 674.

Lesbian, gay, bisexual, transgender rights 155 suffer from the vice of unconstitutionality and [that] the declaration made by the [DHC] is legally unsustainable”.19 The SCI relied heavily on the fact that the IPC has been amended around 30 times since 1950, including with regard to rape in 2013, but that s. 377 has not been amended (even since the Union of India’s decision not to appeal the DHC’s judgment): “This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.”20 Unlike the DHC, the SCI found that “[s.] 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”21 There was insufficient evidence in the record that “homosexuals, gays, etc., are being subjected to discriminatory treatment either by the State or its agencies or the society”.22 Because s. 377 classified on the basis of conduct, it did not suffer from “the vice of arbitrariness and irrational classification,” and did not deny “equality before the law” or “equal protection of the laws,” or discriminate on the ground of sex, contrary to Articles 14 and 15.23 Moreover, the DHC “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in [the] last . . . 150 years less than 200 persons have been prosecuted . . . and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21”.24 Turning to Article 21, the SCI observed that “[t]he right to privacy . . . has been read into Article 21 through an expansive reading of the right to life and liberty”.25 But the Court did not ask itself whether “privacy” includes private sexual activity, and whether criminalisation of such activity requires a strong justification. Instead, it dismissed the argument that s. 377 is used “to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community”, because “this treatment is neither mandated by the section nor condoned by it . . . [T]he mere fact that the section is misused by police authorities and others is not a reflection of [its unconstitutionality]”.26 It also considered irrelevant the international and comparative “privacy” precedents cited by the DHC: “In its anxiety to protect the so-called rights of LGBT persons and to declare that [s.] 377 IPC violates the right to privacy . . ., the [DHC] has extensively relied upon the judgments of other jurisdictions. Though these judgments . . . are informative in relation to the plight of sexual minorities, we feel

19 20 21 22 23 24 25 26

Ibid., para. 54. Ibid., para. 32. Ibid., para. 38. Ibid., para. 40. Ibid., para. 42. Ibid., para. 43 (emphasis added). Ibid., para. 46. Ibid., para. 51.

156  Robert Wintemute that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”27 As will be seen below, the Naz Foundation and other parties opposed to s. 377 were very unlucky when these two judges were assigned to hear Koushal. Most cases in the SCI are decided by only two judges (compared with a minimum of five in the Supreme Courts of Canada and the United Kingdom), and further review is rarely possible. For a non-Indian observer, what appears to be missing in India’s court system is a layer of regional Courts of Appeal between the High Courts and the SCI. Should six or eight Courts of Appeal (perhaps one for every three or four High Courts, taking into account the populations of different states) be created to reduce the appellate caseload of the SCI, and perhaps also to relieve it of its original jurisdiction?28 A redistribution of judicial resources could allow cases to be heard by a single High Court judge, with an appeal (with leave) to a three-judge bench of the Court of Appeal, and then (with leave) to a fivejudge bench of the SCI.29 If a reduction in the caseload of the SCI were to make it possible, a five-judge bench in all cases could help to increase the consistency of the SCI’s judgments, and reduce the effect of “the luck of the draw”.

NALSA in a two-judge Supreme Court of India The most striking features of the Koushal judgment were its insistence: (1) that a “miniscule fraction of the country’s population” did not deserve protection under the Constitution of India; and (2) that international and comparative law is irrelevant in interpreting the Constitution of India. On 15 April 2014, a twojudge bench of the SCI (Justice K.S. Radhakrishnan and Justice A.K. Sikri) published its judgment in National Legal Services Authority (NALSA) v. Union of India, which concerned not s. 377 but “the constitutional and other legal rights of the transgender community”.30 NALSA is the polar opposite of Koushal with regard to these two questions: (1) constitutional protection of minorities; and (2) international and comparative law. With regard to the size of the transgender population, Justice Sikri wrote: “Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These [transgenders], even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.”31 As for international and comparative sources, Justice Radhakrishnan considered them in detail. He cited national legislation and case law (including from Pakistan and Nepal), the 2002 judgment of the

27 Ibid., para. 52 (emphasis added). 28 See Khaitan, supra note, 679. 29 See Khaitan, ibid., and rarely applied Article 145(3): “The minimum number of Judges . . . for . . . any case involving a substantial question of law as to the interpretation of this Constitution . . . shall be five.” 30 See https://indiankanoon.org/doc/193543132, para. 18. 31 Ibid., para. 123. See also para. 49 (“though a minority”).

Lesbian, gay, bisexual, transgender rights 157 European Court of Human Rights (“ECtHR”) in Christine Goodwin v. United Kingdom, European Union legislation and case law, a resolution of the EU’s European Parliament, and the civil-society-initiated Yogyakarta Principles:32 43 We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of . . . “guarantee to equality and non-discrimination” on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, [must or should?] be applied in India as well. . . . 49 Unfortunately we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting [them], they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding . . . principles. . . . [A] constitutional Court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance. 53 Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions, e.g., Articles 14, 15, 19 and 21 of the Constitution[,] to enlarge the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on [transgenders] and the International Conventions, including Yogyakarta [P]rinciples, . . . must be recognized and followed. After considering the international and comparative sources, the two-judge SCI in NALSA reached dramatically different conclusions from the two-judge SCI in Koushal: 55 Discrimination on the ground of sexual orientation or gender identity . . . impairs equality before law and equal protection of law and violates Article 14 . . . 59 The discrimination on the ground of ‘sex’ under Articles 15 and 16 . . . includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female. 62 Article 19(1) (a) . . . states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender . . . through dress, words, action or behaviour . . . No restriction can be placed on one’s personal appearance or choice of dressing,

32 Ibid., paras. 21–42, 71–73 (emphasis added).

158  Robert Wintemute subject to the restrictions contained in Article 19(2) [eg, “decency or morality”] . . . 69 Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 . . . 76 Gender identity . . . forms the core of one’s personal self, based on self identification, not on surgical or medical procedure . . . To protect the constitutional rights of India’s transgender community, the SCI made a sweeping declaration: 129  We, therefore, declare: (1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature. (2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre [quasi-federal government] and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. (3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. . . . (4) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as . . . depression, suicidal tendencies, social stigma, etc. and any insistence for [sex-reassignment surgery] for declaring one’s gender is immoral and illegal. (5) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets . . . (6) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. (7) Centre and State Governments should take steps to create public awareness so that TGs will . . . be not treated as untouchables.

Puttaswamy in a nine-judge Supreme Court of India The contradictory approaches in Koushal and NALSA made it likely that a fivejudge bench of the SCI would at some stage resolve them, by reconsidering Koushal. That likelihood became a virtual certainty when, on 24 August 2017, in Puttaswamy v. Union of India,33 an exceptional nine-judge bench of the SCI

33 See http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judge ment_24-Aug-2017.pdf.

Lesbian, gay, bisexual, transgender rights 159 (which has up to 31 judges who generally sit in two-judge benches) made an order declaring: “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution [of India].” In addition to the four-page “Order of the Court”, the nine judges wrote six separate opinions totalling 543 pages. A challenge to a national identity card scheme gave rise to the finding of a constitutional right to privacy. Although the Court’s focus was informational privacy and data protection, five of nine judges commented on the potential application of the right to privacy to s. 377. The opinion of Justice Chandrachud, writing for Chief Justice Khehar, Justice Agrawal, Justice Nazeer and himself, concluded (emphasis added): Privacy is the constitutional core of human dignity. . . . Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.34 Under the heading “Discordant Notes”, Justice Chandrachud discussed Koushal and rejected the reasons given by the two-judge bench: the size of India’s LGBT minority (“a miniscule fraction of the country’s population”), the irrelevance of legal developments outside India, and the small number of prosecutions under s. 377. On the contrary, Justice Chandrachud wrote: The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. . . . Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.35 Justice Chandrachud added: The view in Koushal that the [DHC] had erroneously relied upon international precedents . . . is . . . unsustainable. . . . [The] rights [of LGBT persons] are not ‘so-called’ but are real rights founded on sound constitutional

34 Ibid., Part T Conclusions, para. 3(F) (emphasis added). 35 Ibid., Part I, paras. 124–128.

160  Robert Wintemute doctrine. . . . Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination. . . . Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating [s.] 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. . . . The chilling effect . . . poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. . . . Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons . . . Since the challenge to [s.] 377 is pending . . . before a [five-judge] Bench . . ., we would leave the constitutional validity to be decided in an appropriate proceeding.36 Justice Kaul agreed with the criticisms of Koushal made by the four judges: “One’s sexual orientation is undoubtedly an attribute of privacy.”37 With five of nine judges expressly disagreeing with Koushal, it seemed almost certain that the five-judge bench in Navtej Singh Johar would “read down” s. 377, and consign to history blanket criminalization in India of certain forms of same-sex sexual activity.

Navtej Singh Johar in a five-judge Supreme Court of India After a four-day hearing that ended on 17 July 2018, the five-judge bench of the SCI published its 493-page judgment in Navtej Singh Johar38 very quickly, less than eight weeks later, on 6 September 2018. For a non-Indian observer, what was unusual about the case that finally “read down” s. 377 was that it was not the original case brought by the Naz Foundation, which is still the subject of a pending curative petition. Exercising its original jurisdiction, the SCI ruled on a set of new writ petitions filed after Koushal by individuals affected by s. 377.39

36 Ibid., Part I, paras. 127–128. 37 Kaul, para. 80. 38 Criminal original jurisdiction, Writ Petition (Criminal) No. 76 of 2016, www.sci.gov.in/ supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf. The four judgments appear in the following order in the 493-page electronic document: Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), pp. 1–166; R.F. Nariman, J., pp. 1–96 (167–262); Dr Dhananjaya Y Chandrachud, J., pp. 1–181 (263–443); Indu Malhotra, J., pp. 1–50 (443–493). 39 See https://economictimes.indiatimes.com/news/politics-and-nation/5-petitioners-whochallenged-section-377/navtej-singh-johar/slideshow/65700685.cms.

Lesbian, gay, bisexual, transgender rights 161 Similar original jurisdiction does not exist in Canada, the UK or the USA, where new writ petitions would not have been possible. The new writ petitions caused the media spotlight to shift from the team of lawyers and others supporting the Naz Foundation case (who had stuck with it since 2001 and consulted widely across the LGBT community to make it a collective effort)40 to the new petitioners (who appeared to have “jumped on the bandwagon”). On the other hand, it could be said that the stories of the new petitioners helped to humanise the case further.41 As long as the contributions of everyone who contributed to the vic‑ tory are acknowledged, most people who fought against s. 377 would not care which writ petition the SCI used as the vehicle to end its long and harmful reign. As in Koushal, the Union of India did not attempt to defend the constitutional validity of s. 377 (as applied to “consensual acts of adults in private”), and instead “[left] the same to the wisdom of [the SCI]”.42 However, third-party interveners provided the SCI with standard arguments against decriminalisation: s. 377 prohibits acts that involve “abusing the organs” and are contrary to the constitutional concept of dignity;43 “persons indulging in unnatural sexual acts which have been made punishable under [s. 377] are more susceptible and vulnerable to contracting HIV/AIDS”;44 “the family system . . . will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade”;45 “the political, economic and cultural heritage of those countries [that have decriminalised] are very different from India which is a multicultural and multi-linguistic country”;46 “decriminalizing . . . would run foul to all religions practised in the country”;47 “[p]rohibition against carnal intercourse involving penetration into non-sexual parts of the body does not constitute discrimination as laws based on biological reality can never be unconstitutional”;48 “ ‘sexual orientation’ . . . is alien to our Constitution and . . . cannot be imported . . . [without] a constitutional amendment”;49 and “decriminalization . . . will open a floodgate of social issues . . . as same sex marriages would become social experiments with unpredictable outcome”.50 These arguments were dismissed or ignored.

40 See Vivek Divan, https://thewire.in/lgbtqia/delhi-pride-parade-section-377 (25 Nov. 2018), http://orinam.net/377/background-of-sec-377/community-effort-battle-againsts377/ (Sept. 2018), https://arc-international.net/blog/on-the-verge-of-a-kind-of-free dom-ridding-india-of-section-377/ (16 Aug. 2018). 41 Chandrachud, paras. 49–50. 42 Misra, para. 36. 43 Ibid., para. 39 44 Ibid., para. 43. 45 Ibid., para. 44. 46 Ibid., para. 45. 47 Ibid., para. 46. 48 Ibid., para. 52. 49 Ibid., para. 59. 50 Ibid., para. 64.

162  Robert Wintemute As for the wide range of arguments accepted by the SCI, and authorities cited by the SCI, the following sections are organised as follows: Constitutional protection of minorities; International and comparative law; Social change and the living constitution; Sexual orientation, sexual activity, and choice; Rights to dignity and privacy; Right to health; Right to freedom of expression; Right to equality; Justifications for criminalisation; and Conclusions and remedies.

Constitutional protection of minorities The SCI’s Johar bench rejected with impatience Koushal’s exclusion of “minuscule minorities” from the protection of the Constitution of India. Chief Justice Dipak Misra (writing for himself and Justice A.M. Khanwilkar) observed that “it is expected from the courts . . . to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality.”51 The Court protects “the constitutional rights of the citizens, howsoever small that fragment of the populace maybe. The idea of number, in this context, is meaningless.”52 The Chief Justice described Koushal’s reference to LGBT persons as “a very minuscule part of the population” as “perverse” and “violative of the equality principle” in Article 14.53 “[T]his Court is not concerned with the number of persons belonging to the LGBT community . . . and must not hesitate in striking down [a] provision of law on the account of it being violative of the fundamental rights of certain citizens, however minuscule their percentage may be.”54 Indeed, “the Courts must step in whenever there is a violation of the fundamental rights, even if the right/s of a single individual is/ are in peril”.55 Justice Nariman emphatically rejected the idea that, because the legislature is free to amend s. 377, the courts should not intervene: “The very purpose of the fundamental rights chapter . . . is to withdraw the subject of liberty and dignity of the individual and place [it] beyond the reach of majoritarian governments so that constitutional morality can be applied . . . to give effect to the rights . . . of ‘discrete and insular’ minorities.”56 The size of the LGBT population and the number of prosecutions under s. 377 are irrelevant.57 Justice Malhotra added: “Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority. . . . [W]hile the majority is entitled to govern; the minorities . . . are protected by the solemn guarantees of [fundamental] rights . . .

51 Ibid., para. 119. 52 Ibid., para. 120 (emphasis added). 53 Ibid., para. 169. 54 Ibid., para. 170 (emphasis added). 55 Ibid., para. 253(viii) (emphasis added). See also para. 229 (“the citizenry, howsoever small”). 56 Nariman, para. 81. 57 Ibid., para. 95.

Lesbian, gay, bisexual, transgender rights 163 under Part III.”58 Justice Chandrachud wrote in the same vein: “Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.”59

International and comparative law Similarly, the SCI’s Johar bench had no doubt, contrary to the view of the Koushal bench, that international and comparative law should be considered in interpreting the Constitution of India. Justice Chandrachud observed that “the Indian Penal Code must be brought into conformity with both the Indian Constitution and the rules and principles of international law that India has recognized. Both make a crucial contribution towards recognizing the human rights of sexual and gender minorities.”60 He added that, “[o]ver the past several decades, international and domestic courts [outside of India] have developed a strong body of jurisprudence against discrimination based on sexual orientation,”61 and therefore included “an analysis of comparative jurisprudence from across the world”.62 Although “socio-historical contexts differ from one jurisdiction to another”, “the overwhelming weight of international opinion . . . reflects a growing consensus towards sexual orientation equality. We feel inclined to concur with the accumulated wisdom reflected in these judgments, not to determine the meaning of . . . the Indian Constitution, but to provide a . . . confirmation of our conclusions.”63 The international and comparative materials64 cited by the SCI in Johar included the 1957 report of the Wolfenden Committee on decriminalisation in England and Wales,65 as well as criminal law decisions of the European Court (and former Commission) of Human Rights,66 the Supreme Court of the United States,67 the United Nations Human Rights Committee,68 and courts in Belize, Ecuador, Fiji, Hong Kong, South Africa and Trinidad & Tobago.69 As in NALSA, the SCI also cited the civil-society-initiated Yogyakarta Principles. Justice Nariman described them as “conform[ing] to our constitutional view of the fundamental rights of the . . . persons who come to this Court”, and as “giv[ing] further content to the

58 59 60 61 62 63 64

65 66 67 68 69

Malhotra, para. 19. Chandrachud, para. 148. Ibid., para. 104. Ibid., para. 105. Ibid., para. 125. Ibid., para. 126. Among the law journal articles collecting these materials for the Indian courts was Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India”, (2011) 4 National University of Juridical Sciences Law Review 31. Misra, para. 222; Nariman, paras. 23–26; Chandrachud, paras. 18, 132; Malhotra, para. 9. Misra, paras. 153, 201, 204, 222; Nariman, para. 37; Chandrachud, para. 106. Misra, paras. 156, 195; Nariman, para. 36; Chandrachud, paras. 107–108. Misra, paras. 158, 203; Nariman, para. 42; Chandrachud, paras. 109–110. Misra, paras. 159, 200; Nariman, paras. 39–41; Chandrachud, paras. 111–115.

164  Robert Wintemute fundamental rights contained in Articles 14, 15, 19 and 21”.70 In particular, Justice Chandrachud cited Principle 33 on the right to be free from criminalisation.71

Social change and the living constitution Should the views of those who drafted the Constitution of India in 1950 preclude protection of LGBT persons? Chief Justice Misra and Justice Khanwilkar made it clear that they should not:   84 . . . We emphasize on the role of the constitutional courts in realizing the evolving nature of this living instrument. Through its dynamic and purposive interpretative approach, the judiciary must strive to breathe life into the Constitution and not render the document a collection of mere dead letters. . . .   86 . . . It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago. . . . 106 The society has changed much now . . . In many spheres, the sexual minorities have been accepted. Justice Chandrachud drew attention to the origins of s. 377 as a British colonial law: 19 . . . India continues to enforce a law imposed by an erstwhile colonial government, a law that has been long done away with by the same government in its own jurisdiction [the United Kingdom]. 24 Indian citizens belonging to sexual minorities . . . have waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic colonialera law – forcing them to live in hiding, in fear, and as second-class citizens. Similarly, Justice Malhotra noted that “British Prime Minister Theresa May in her speech . . . on April 17, 2018 urged Commonwealth Nations to overhaul ‘outdated’ anti-gay laws”: Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations. . . . I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s Prime Minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today.72

70 Nariman, paras. 84, 88. 71 Chandrachud, para. 103. 72 Malhotra, para. 10.

Lesbian, gay, bisexual, transgender rights 165

Sexual orientation, sexual activity, and choice Section 377 and similar laws were drafted at a time when the concept of “sexual orientation” did not exist. It was assumed that any individual who engaged in prohibited sexual activity had freely chosen to deviate from social norms, and was not in any way predisposed to such activity, or that any predisposition had to be considered a mental illness. The SCI’s Johar judgment reflects a modern understanding of sexual orientation. Chief Justice Misra and Justice Khanwilkar asked:    9 . . . whether sexual orientation alone [attraction] is to be protected or both orientation and choice [of sexual conduct when an individual acts on their attraction] are to be accepted as long as the exercise of these rights by an individual do not affect another’s choice or . . . has the consent of the other . . . 143 . . . homosexuality . . . is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation . . . is as natural a phenomenon as other natural biological phenomena. What the science of sexuality has led to is that an individual has the tendency to feel sexually attracted towards the same sex, for the decision is one that is controlled by neurological and biological factors. . . . 144 . . . Whether one’s sexual orientation is determined by genetic, hormonal, developmental, social and/or cultural influences (or a combination thereof), most people experience little or no sense of choice about their sexual orientation. Justice Malhotra reached similar conclusions: 13.1 . . . Sexual orientation [attraction] is not a matter of choice. . . . Homosexuality is a natural variant of human sexuality. 19 . . . Sexual orientation is immutable, since it is an innate feature of one’s identity, and cannot be changed at will. The choice of LGBT persons to enter into . . . sexual relations with persons of the same sex is an exercise of their personal choice [to act on their attraction], and an expression of their autonomy and self-determination. Justice Nariman noted that “the thinking in Victorian England and early on in America was that homosexuality was to be considered as a mental disorder”,73 before quoting the July 2018 “Position statement on Homosexuality” of the Indian Psychiatric Society: 70. . . . In the opinion of the . . . Society homosexuality is not a psychiatric disorder. This is in line with the position of American Psychiatric Association and . . . the World [H]ealth Organization which removed homosexuality from the list of psychiatric disorders in 1973 and 1992 . . . The I.P.S. recognizes same-sex sexuality as a normal variant of human sexuality much like heterosexuality and bisexuality. There is no scientific evidence that sexual

73 Nariman, para. 68.

166  Robert Wintemute orientation can be altered by any treatment . . . The [I.P.S.] . . . supports decriminalization of homosexual behavior.74

Rights to dignity and privacy Given its approach to protecting minorities, using international and comparative sources, interpreting the Constitution (as a living instrument), and understanding same-sex sexual orientation and conduct (as normal), the Johar bench easily found, relying on Puttaswamy, that s. 377 violates the rights to dignity and privacy in Article 21. Chief Justice Misra and Justice Khanwilkar had “no hesitation to say that [s.] 377 . . . abridges both human dignity as well as the fundamental right to privacy”, which includes “the right of every individual including that of the LGBT to express their choices in terms of sexual inclination without the fear of . . . criminal prosecution”.75 Justice Chandrachud reached the same conclusion:   59 The exercise of the natural and inalienable right to privacy entails allowing an individual the right to a self-determined sexual orientation. Thus, it is imperative to widen the scope of the right to privacy to incorporate a right to ‘sexual privacy’ to protect the rights of sexual minorities. . . . 148 Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. . . . 149 The impact of Section 377 has travelled far beyond criminalising certain acts. . . . The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain. 150  . . . In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices. 151 . . . In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. . . . Justice Malhotra also found violations of the rights to dignity and privacy: 16.1 . . . LGBT persons, like . . . heterosexual persons, are entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. They are entitled to complete autonomy over . . . intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21 . . . [which] would encompass the right to sexual autonomy . . . Section 377 insofar as it curtails the personal liberty of LGBT persons to engage in voluntary consensual sexual relationships with

74 See also Malhotra, paras. 13.3–13.5. 75 Misra, para. 229.

Lesbian, gay, bisexual, transgender rights 167 a partner of their choice, in a safe and dignified environment, is violative of Article 21. . . . LGBT individuals are forced to either lead a life of solitary existence without a companion, or lead a closeted life as “unapprehended felons”. Section 377 prevents LGBT persons from leading a dignified life as guaranteed by Article 21. 16.2 . . . The right to privacy . . . extends to the right to make fundamental personal choices, including those relating to intimate sexual conduct, without unwarranted State interference. . . . Section 377 prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private.

Right to health Another aspect of Article 21, in addition to dignity and privacy, is the right to health. Justice Chandrachud’s opinion included a detailed assessment of the effects of s. 377 on the physical health of LGBT persons: 76 . . . Section 377 denies consenting adults the full realization of their right to health . . . It forces consensual sex between adults into a realm of fear and shame, as persons who engage in anal and oral intercourse risk criminal sanctions if they seek health advice. This lowers the standard of health enjoyed by . . . members of sexual and gender minorities . . . 83 Laws that criminalize same-sex intercourse . . . curb the effective prevention and treatment of HIV/AIDS. . . . 87 . . . MSM and transgender persons may not approach State health care providers for fear of being prosecuted for engaging in criminalized intercourse. . . . He cited a UNAIDS report which found that rates of HIV infection are nearly four times higher among MSM in Caribbean countries that criminalise same-sex sexual relations, compared with Caribbean countries that do not.76 Justice Chandrachud also discussed the negative effects of s. 377 on the mental health of LGBT persons: 93

The treatment of homosexuality as a disorder has serious consequences on the mental health and well-being of LGBT persons. . . . Global psychiatric expert Dinesh Bhugra has emphasised that radical solutions are needed . . . stating there is a “clear correlation between political and social environments” and how persecutory laws against LGBT individuals are leading to greater levels of depression, anxiety, self-harm, and suicide. . . . 96 Counselling practices will have to . . . provid[e] support to homosexual clients to become comfortable with who they are. . . . Instead of trying to cure something that isn’t even a disease or illness, the counsellors have to

76 Chandrachud, para. 89.

168  Robert Wintemute adopt a more progressive view that reflects the changed medical position and changing societal values. Justice Malhotra noted a paradox in Indian legislation: “Section 377 criminalises LGBT persons, which inhibits them from accessing [physical] health-care facilities, while [s. 21(1)(a) of] the Mental Healthcare Act, 2017 provides a right to access mental healthcare without discrimination, even on the ground of ‘sexual orientation’.”77

Right to freedom of expression One could argue that criminalisation of private sexual activity is best analysed under the right to privacy in Article 21, because expression in Article 19(1) (a) often involves an attempt, in a public place, to communicate an idea or an image to an audience, such as bystanders observing the annual Delhi Queer Pride parade.78 However, four members of the Johar bench found a violation of Article 19(1)(a). Chief Justice Misra and Justice Khanwilkar concluded that s. 377 “is violative of the fundamental right of freedom of expression including the right to choose a sexual partner”.79 They added that “[a]ny discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression”.80 Justice Malhotra also found a violation of Article 19(1)(a): “LGBT persons express their sexual orientation in myriad ways. One such way is engagement in intimate sexual acts like those proscribed under Section 377.”81

Right to equality The ECtHR in Dudgeon v. United Kingdom in 1981, the United Nations Human Rights Committee in Toonen v. Australia in 1994, and the US Supreme Court in Lawrence & Garner v. Texas in 2003, all restricted their analysis to the right to privacy, and declined to rule on arguments related to equality. To its credit, the SCI in Johar went beyond privacy and considered equality. Prior to 2013, s. 377 seemed to involve indirect discrimination based on sexual orientation because, although s. 377 appeared to be neutral by prohibiting all anal intercourse, gay and bisexual men are more likely to engage in anal intercourse than heterosexual men and women (the option of vaginal intercourse, which is outside s. 377 and therefore legal, is not available), and all LGBT persons were more likely than heterosexual persons to be stigmatised by s. 377.82

77 78 79 80 81 82

Malhotra, para. 16.3. See, e.g., Bayev & Others v. Russia (European Court of Human Rights, 20 June 2017). Misra, para. 247. Ibid., para. 253 (vii & xvi). Malhotra, para. 17. See also Nariman, para. 95. This argument was accepted by all three judges of the Québec Court of Appeal with regard to s. 159 of Canada’s Criminal Code in R. v. Roy, [1998] R.J.Q. 1043, 125 C.C.C. (3d) 442.

Lesbian, gay, bisexual, transgender rights 169 However, after the amendments to the offence of rape in 2013, s. 375 IPC appeared to permit consensual anal or oral intercourse between a man and a woman, while s. 377 prohibited consensual anal or oral intercourse between two men. The amendments arguably had converted indirect sexual orientation discrimination into direct sexual orientation discrimination,83 just as the Texas legislature had done with its same-sex-only offence of “deviate sexual intercourse” in Lawrence & Garner.84 Chief Justice Misra and Justice Khanwilkar found that s. 377 lacked “a reasonable nexus” and was “manifestly arbitrary”, and therefore violated Article 14 (“equality before the law”, “equal protection of the laws”).85 Justice Nariman agreed that s. 377 “will offend Article 14 as it will discriminate between heterosexual and homosexual adults which is a distinction which has no rational relation to the object sought to be achieved . . . – namely, the criminalization of all [anal or oral] sex . . . as being against the order of nature”.86 Justice Chandrachud also found a violation of Article 14,87 but went on to conduct a detailed assessment of whether s. 377 is a form of discrimination based on sex,88 contrary to Article 15 (“The State shall not discriminate against any citizen on grounds only of . . . sex”):89 41 . . . If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination . . . prohibited by Article 15 on the grounds only of sex. . . .

83 See Misra, para. 221; Nariman, para. 94; Chandrachud, para. 31; Malhotra, para. 14.7. 84 The neutral prohibition of different-sex or same-sex anal or oral intercourse (“sodomy”) was replaced in 1973 by Texas Penal Code, Sec. 21.06: HOMOSEXUAL CONDUCT. A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. 85 Misra, paras. 237, 253 (xiv & xv). 86 Nariman, para. 94. At para. 95, he also referred to a violation of Article 15. 87 Chandrachud, para. 31. 88 See Andrew Koppelman, “The Miscegenation Analogy: Sodomy Law as Sex Discrimination”, (1988) 98 Yale Law Journal 145; Andrew Koppelman, “Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination”, (1994) 69 New York University Law Review 197; Robert Wintemute, “Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes”, (1997) 60 Modern Law Review 334; Robert Wintemute, “Sex Discrimination in MacDonald and Pearce: Why the Law Lords Chose the Wrong Comparators”, (2003) 14 King’s College Law Journal 267. The sex discrimination argument was recently accepted by US federal appellate courts, interpreting the federal prohibition of sex discrimination in employment, in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) (en banc), and Zarda v. Altitude Express, Inc., 883 F.3d 100 (2nd Cir. 2018) (en banc). On 8 October 2019, the US Supreme Court will review Zarda and two other decisions about the sex discrimination argument in relation to sexual orientation and gender identity and Title VII of the Civil Rights Act of 1964. See https://www.scotus blog.com/2019/04/court-to-take-up-lgbt-rights-in-the-workplace/. 89 Chandrachud, paras. 33–52.

170  Robert Wintemute 44

45

46

51 52

53

Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society. In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles. . . . . . . a heterosexist society both expects and requires men and women to engage in only opposite-sex sexual relationships. The existence of same-sex relationships is, therefore, repugnant to heterosexist societal expectations. . . . one cannot simply separate discrimination based on sexual orientation and discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles. . . . The effort to end discrimination against gays should be understood as a necessary part of the larger effort to end the inequality of the sexes. . . . . . . The effect of Section 377, thus, is not merely to criminalize an act, but to criminalize a specific set of [LGBT] identities. . . . . . . A criminal provision has sanctioned discrimination grounded on stereotypes imposed on an entire class of persons on grounds prohibited by Article 15(1). This constitutes discrimination on the grounds only of sex and violates the guarantee of non-discrimination in Article 15(1). History has been witness to a systematic stigmatization and exclusion of those who do not conform to societal standards of what is expected of them. Section 377 rests on deep rooted gender stereotypes.

Like Justice Chandrachud, Justice Malhotra found violations of both Article 14 and Article 15. With regard to Article 14, she held: “The natural or innate sexual orientation of a person cannot be a ground for discrimination. Where a legislation discriminates on the basis of an intrinsic and core trait of an individual, it cannot form a reasonable classification.”90 She also found that s. 377 is “manifestly arbitrary”, because “the basis of criminalisation is the ‘sexual orientation’ of a person, over which one has ‘little or no choice’ ”.91 As for Article 15, she concluded: 15.1 . . . Sex . . . in Article 15, is not merely restricted to the biological attributes of an individual, but also includes their ‘sexual identity and character’. The J.S. Verma Committee had recommended that ‘sex’ under Article 15 must include ‘sexual orientation’ . . . The prohibition against discrimination under Article 15 on the ground of ‘sex’ should therefore encompass instances where such discrimination takes place on the basis of one’s sexual orientation. . . . Unlike Justice Chandrachud, who found a link between s. 377 and gender roles and stereotypes, Justice Malhotra read “sexual orientation” into the ground “sex” in Article 15. In doing so, she relied on the academic argument that “immutable

90 Malhotra, para. 14.3. 91 Ibid., para. 14.9.

Lesbian, gay, bisexual, transgender rights 171 statuses” and “fundamental choices” should be read into an open-ended list of grounds of discrimination in the equality clause of a constitution.92 She then cited Egan v. Canada,93 in which the Supreme Court of Canada read “sexual orientation” into the open-ended list in Section 15(1) of the Canadian Charter as an “analogous ground”,94 without noting that Article 15 of the Constitution of India contains a closed list of grounds:95 15.2 . . . A similar conclusion [to the one in Canada] can be reached in the Indian context as well in light of the underlying aspects of immutability and fundamental choice. The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Article 15.

Justifications for criminalisation The Johar bench ruled that s. 377 is a prima facie violation of the rights to dignity, privacy, health, freedom of expression, and equality (including the right to be free from sex discrimination). The justifications for restricting these rights that some of the interveners asserted were all rejected. Chief Justice Misra and Justice Khanwilkar observed that criminalisation of same-sex carnal intercourse “hardly serves any legitimate public purpose or interest”, but allows “the harassment and exploitation of the LGBT community”.96 Indeed, s. 377 “takes within its fold private acts of adults including the LGBT community which are not only consensual but are also innocent, as such acts neither cause disturbance to the public order nor are they injurious to public decency or morality”.97 For Justice Nariman, “[w]hen it is found that . . . the State has no compelling reason to continue an existing law which penalizes same-sex couples who cause no harm to others, . . . it is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold [s. 377].”98 Justice Chandrachud dismissed the claim of some interveners that “homosexuality is against popular culture and

92 Ibid., para. 15.2 (citing Tarunabh Khaitan citing John Gardner reviewing Robert Wintemute, Sexual Orientation and Human Rights, 1995). 93 [1995] 2 SCR 513. 94 Compare Misra, para. 197, in which they mistakenly describe the application of Egan in the subsequent case of Vriend v. Alberta, [1998] 1 S.C.R. 493, as a conclusion by the Supreme Court of Canada that “ ‘sex’ includes sexual orientation”. 95 For an argument for reading “sexual orientation” and other analogous grounds into Article 14, see Tarunabh Khaitan, “Beyond Reasonableness – A Rigorous Standard of Review for Article 15 Infringement”, (2008) 50 Journal of the Indian Law Institute 177, 203–204. 96 Misra, para. 223. 97 Ibid., para. 245. 98 Nariman, para. 95.

172  Robert Wintemute is thus unacceptable in Indian society.”99 This mainstream view could not prevail against constitutional morality: 137. We are aware of the perils of allowing morality to dictate the terms of criminal law. . . . The LGBTQ community has been a victim of the predominant (Victorian) morality which prevailed at the time when the Indian Penal Code was drafted and enacted. Therefore, we are inclined to observe that it is constitutional morality, and not mainstream views about sexual morality, which should be the driving factor in determining the validity of Section 377.

Conclusions and remedies Chief Justice Misra and Justice Khanwilkar concluded that “[s.] 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) and lesbians (woman and a woman), cannot be regarded as constitutional”,100 and that Koushal is overruled,101 as Lawrence & Garner (2003) overruled Bowers v. Hardwick (1986).102 They made it clear that s. 377 could still be constitutionally applied to a sexual act that involves an animal, is not consensual, or is not “in private space”.103 For Justice Chandrachud, “[t]hat it has taken sixty eight years even after the advent of the [1950] Constitution is a sobering reminder of the unfinished task which lies ahead”.104 Justice Malhotra added that “adult” means “persons above the age of 18 years who are competent to consent”,105 and that: 20 History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of . . . persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.

 99 Chandrachud, para. 145. 100 Misra, para. 252. 101 Ibid., para. 253 (xviii). See also Nariman, para. 96; Chandrachud, para. 156 (v); Malhotra, para. 21 (iv). 102 478 U.S. 186 (1986). 103 Misra, paras. 221, 252, 253. 104 Chandrachud, para. 154. 105 Malhotra, para. 21 (i).

Lesbian, gay, bisexual, transgender rights 173 Justice Nariman ordered a broad remedy similar to the one in NALSA: 98 . . . the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media . . ., and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, . . . [shall] be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.

Future application of Johar in the criminal law beyond India, and in India beyond the criminal law? Criminal law beyond India The Johar judgment could be described as “one small step for a court, one giant leap for LGBT humankind”. It removed the criminal law that affected more LGBT persons than any other in the world, through reasoning that should be very persuasive in the 70 UN member states that continue to criminalise, most of which are economically in the Global South. It is likely to inspire or strengthen court challenges to similar British colonial laws in Pakistan, Bangladesh, Sri Lanka, Myanmar, Malaysia, Singapore and Brunei, as well as in Africa (e.g., Nigeria) and the English-speaking Caribbean (e.g., Jamaica). The significance of Johar and India’s consequent rise in the “global league table” of LGB equality106 from level 0 to level 1, and from roughly the bottom third to roughly the middle third, can be seen in Table 7.1.

Impact in India beyond the criminal law What impact will Johar have in India beyond the criminal law? In 2011, I suggested five steps in LGB law reform, slightly different from levels 0 to 4 in Table 7.1: 1 2 3 4 5

repeal of the death penalty for same-sex sexual activity; decriminalisation of such activity (no fines or imprisonment); removal of all discrimination against such activity from the criminal law; legislation prohibiting discrimination based on sexual orientation; reform of family law.107

106 From this point on, I will sometimes refer only to LGB equality, because of the difficulty of producing a single “global league table” for LGB and transgender-specific issues, and because the SCI has gone further in NALSA with regard to transgender persons (e.g., reservations in education and employment) than in Johar with regard to LGB persons. What the SCI requires for LGB persons should apply to transgender persons, but not necessarily vice versa. 107 Robert Wintemute, “Same-Sex Love and Indian Penal Code §377: An Important Human Rights Issue for India”, (2011) 4 National University of Juridical Sciences Law Review 31 at 51.

174  Robert Wintemute Table 7.1  “Global Progress Towards LGB Equality”.  Level of law reform

4 – Equal access to marriage for same-sex couples

3 – An alternative registration system for same-sex couples 2 – A general anti-discrimination law (usually covering at least employment or services) includes sexual orientation and no criminal law 1 – No general anti-discrimination law but no criminal law 0 – Criminalisation of all same-sex sexual activity or all male-male sexual activity (in some cases, despite a general antidiscrimination law)

Number and % of UN member states (ILGA, “State-Sponsored Homophobia”, 2017;1 note that Taiwan is not a UN member state) 26 of 193 or 13.5% (including Austria from 1 January 2019, and Mexico despite regional variations, but excluding Taiwan) 13 of 193 or 6.7% (total with 4 or 3 = 39 of 193 or 20.2%) 27 of 193 or 14.0% (total with 4, 3 or 2 = 66 or 193 or 34.2%) 57 of 193 or 29.5% (including China, India, Indonesia, Japan, Russia and Turkey) 70 of 193 or 36.3% (excluding India since 6 September 2018)

Level of law reform

Asia

Africa

Europe

Americas

Oceania

4 – marriage

0 (UN member states, but see Taiwan) 0

1

16

7

2

0

11

2

0

2

3

13

8

1

18

18

8

8

5

22 (52.4%)

32 (59.3%)

0

10 (28.6%)

6 (42.9%)

3 – partnership law 2 – general antidiscrimination law 1 – no criminal law 0 – criminal law 1

See https://ilga.org/state-sponsored-homophobia-report.

The first step was taken (at the latest) when the Indian Penal Code came into force on 1 January 1862. The second step was taken in Johar on 6 September 2018. It seems clear from the SCI’s reasoning that it would not tolerate other forms of discrimination against same-sex sexual activity in the criminal

Lesbian, gay, bisexual, transgender rights 175 law, such as a higher age of consent, which many European countries used to continue to stigmatise (at least) male-male sexual activity for many years after decriminalisation. In England and Wales, 33 years passed between decriminalisation through the Sexual Offences Act 1967 (with an age of consent of 21 for male-male sexual activity) and equalisation of the age of consent at 16 through the Sexual Offences (Amendment) Act 2000, before the Sexual Offences Act 2003 removed all remaining discrimination in the criminal law. But in India, the second and third steps were probably both taken on 6 September 2018, given that the age of consent in all cases in India is now 18.108 As for step four (discrimination against LGB individuals in public-sector employment, including the armed forces, private-sector employment and other areas) and step five (reform of family law to include same-sex couples), it is hard to predict how far the SCI will go in future cases. Did it mean what it said about “equal citizenship”? Or will some differences in treatment be seen as justifiable? The soaring rhetoric of the SCI in Johar goes far beyond the cautious conclusion of the ECtHR in Dudgeon in 1981, which declined to rule on the question of an equal age of consent, and added: “ ‘Decriminalisation’ does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features.”109 It was not until 1999 that the ECtHR went beyond decriminalisation in an LGB case,110 or found discrimination based on sexual orientation,111 and it did not require an equal age of consent until 2003.112 Chief Justice Misra and Justice Khanwilkar insisted that “[t]he LGBT community possess the same human, fundamental and constitutional rights as other citizens”.113 This means, in particular, that “any display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or has the potentiality to disturb public order cannot be bogged down by majority perception”.114 But they distinguished

108 See Criminal Law Amendment Act, 2013; Independent Thought v. Union of India (SCI, 11 October 2017) (the age of consent must also be 18 in the context of a male-female marriage). 109 Dudgeon v. United Kingdom (ECtHR, 22 Oct. 1981), para. 61. 110 Smith & Grady v. UK, Lustig-Prean & Beckett v. UK (ECtHR, 27 Sept. 1999) (dismissal of LGB members of armed forces). 111 Mouta v. Portugal (ECtHR, 21 Dec. 1999) (gay father lost custody of his daughter). 112 S.L. v. Austria (ECtHR, 9 Jan. 2003). The ECtHR might have done so earlier if the legislation challenged in Sutherland v. UK (European Commission of Human Rights, 1 July 1997) had not been amended. 113 Misra, para. 240. 114 Ibid., para. 246.

176  Robert Wintemute between the LGBT community’s “right to a union” or “right to companionship” under Article 21 and marriage: “When we say union, we do not mean the union of marriage, though marriage is a union.”115 Justice Nariman referred not to “equal citizenship”, but to a right of LGBT persons “to be treated in society as human beings without any stigma being attached to any of them”.116 The most sweeping statements about equality were made by Justice Chandrachud. He noted that decriminalisation is a necessary but minimal first step: 126 . . . Decriminalisation is of course necessary to bury the ghosts of morality which flourished in a radically different age and time. But decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements. The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilizations across the spectrum of a compassionate global order, India cannot be left behind. He went well beyond the “right not to be a criminal” by declaring that “lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations”,117 that “[s]exual orientation is recognised and protected by the Constitution”,118 that “LGBT individuals are equal citizens of India”, and “that they cannot be discriminated against”.119 He also noted that the “right to be an equal citizen” must include the right to be openly lesbian, bisexual, gay or transgender (emphasis added): 60 . . . Confronting the closet would entail . . . ensuring that individuals belonging to sexual minorities, have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. . . . [O]ur constitutional jurisprudence must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms. In the public sector, Articles 14, 15(1) and 16(2) will provide protection, if “sex” continues to be interpreted as applying to or including “sexual orientation”, as Justices Chandrachud and Malhotra found. This protection will include public-sector employment, as in the case of Siras v. Aligarh Muslim University.120 In the private sector, Article 15(2) will provide protection with regard to “(a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of . . . places of public resort . . . dedicated to the use of the general public”.

115 116 117 118 119 120

Ibid., para. 155. Nariman, para. 97. Chandrachud, paras. 7, 150, 156 (iv). Ibid., para. 7. Ibid., para. 145. Allahabad High Court (1 April 2010), www.icj.org/wp-content/uploads/2010/04/SRSiras-v.-Aligarh-Muslim-University-High-Court-at-Allahabad-India.pdf. See also the 2016 film “Aligarh”, www.youtube.com/watch?v=JezwsQKpXuU.

Lesbian, gay, bisexual, transgender rights 177 But private-sector employment seems to fall outside Articles 14, 15 and 16. The Anti-Discrimination and Equality Bill 2016, introduced in the Lok Sabha on 10 March 2017 by Dr Shashi Tharoor MP (advised by Prof. Tarunabh Khaitan)121 would fill the gap. The bill would prohibit discrimination in employment and other areas (emphasis added) based on “caste, race, ethnicity, descent, sex, gender identity, pregnancy, sexual orientation, religion and belief, tribe, disability, linguistic identity, HIV status, nationality, marital status, food preference, skin tone, place of residence, place of birth or age”, or “any other personal characteristic which, . . . is either outside a person’s effective control, or constitutes a fundamental choice, or both”.122 Justice Chandrachud also anticipated future debates about the inclusion of same-sex couples into Indian family law, when he referred to the “right to love”, “the freedom to enter into relationships”, the “right to form unions”, the “right to family life”, and the “right . . . to a partner”. He began by noting that samesex love is not the only kind of “forbidden love” in Indian society (emphasis added): 32 . . . What links LGBT individuals to couples who love across caste and community lines is the fact that both are exercising their right to love at enormous personal risk and in the process disrupting existing lines of social authority. Thus, a re-imagination of the order of nature as being not only about the prohibition of non-procreative sex but instead about the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all. He then stated some general principles about the right to same-sex love (emphasis added):   67 . . . it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner. . . .   Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships. . . . 115 . . . Courts around the world have not stopped at decriminalizing . . .; they have . . . developed . . . broader rights . . . [which] include . . . the right to form unions and the right to family life. 125 . . . From an analysis of comparative jurisprudence from across the world, the following principles emerge: . . .

121 See https://sites.google.com/site/tarunabh/Home/discrimination-law. 122 See https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnx 0YXJ1bmFiaHxneDozMzBiNzgwZTQ5OTM5MTIx.

178  Robert Wintemute   5 The right . . . to a partner, to find fulfillment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights;    6 Sexual orientation implicates negative and positive obligations on the state. It not only requires the state not to discriminate, but also calls for the state to recognise rights which bring true fulfillment to same-sex relationships . . . Justice Malhotra alluded to these debates as well. She mentioned countries that allow same-sex couples to marry and adopt children,123 and explained how s. 377 causes LGBT persons to stay “in the closet”: “They are forced not to disclose a central aspect of their personal identity i.e. their sexual orientation, both in their personal and professional spheres to avoid persecution in society. . . . Unlike heterosexual persons, they are inhibited from openly forming and nurturing fulfilling relationships.”124 For a non-Indian observer, a final, striking feature of Johar is the references to decisions of courts outside India regarding issues beyond criminalisation, which strictly speaking were not relevant to the review of s. 377. Chief Justice Misra and Justice Khanwilkar appear to have mistakenly cited the US Supreme Court’s same-sex marriage decision, Obergefell v. Hodges,125 at the start of a discussion of what appears to be the US Supreme Court’s decriminalisation reasoning in Lawrence & Garner.126 But Justice Chandrachud made no such mistake. His extensive survey of comparative law included the Supreme Court of Canada on the absence of protection against private-sector employment discrimination,127 the Supreme Court of Nepal on a (not-yet-implemented) right to same-sex marriage,128 the ECtHR on the absence of a “specific legal framework” for same-sex couples in Italy,129 the US Supreme Court on same-sex marriage,130 and the US and UK Supreme Courts on refusals by Christian bakers to make a cake for a same-sex marriage or with the slogan “Support Gay Marriage”.131 Will the Supreme Court of India one day interpret the “equal citizenship” of LGBT persons under the Constitution of India as requiring that same-sex couples be allowed to marry and to raise children (whether they are adopted or genetically related to one partner because of assisted reproduction)? It is hard to say how long the journey to full legal equality for LGBT persons in India will take. But the SCI knows that it has started down that road. In its Johar judgment, it has made an excellent start.

123 124 125 126 127 128 129 130 131

Malhotra, para. 10. Ibid., para. 17.1. 576 U.S. ___ (2015). Misra, para. 191. Chandrachud, paras. 117–118. Ibid., para. 118. Ibid., paras. 119–120. Ibid., paras. 121–122. Ibid., paras. 123–125.

8 Acid attacks in India The case for state and corporate accountability for gender-based crimes Sital Kalantry and Jocelyn Getgen Kestenbaum Introduction Acid attacks occur in many countries, including Uganda,1 Ethiopia,2 Colombia,3 the United States,4 India,5 and many other South Asian countries.6 India has

1 See Bonnie Allen, Acid Attacks on the Rise in Uganda, PRI (Jul. 20, 2011), www.pri.org/ stories/2011-07-20/acid-attacks-rise-uganda; see also Amy Fallon, Meet the Inspiring Acid Attack Survivors Who are Pushing to Change Uganda’s Laws, Takepart (Mar. 1, 2016), www. takepart.com/article/2016/03/01/uganda-acid; Acid Survivors’ Foundation Uganda, Acid Violence in Uganda: A Situational Analysis (2011), www.asti.org.uk/assets/uganda_asfu_situa tional_analysis_report_final_nov2011_1.pdf. 2 See, e.g., Jon Sharman, Ethiopian Woman’s Mouth ‘Melted Shut in Horrific Acid Attack by Husband’, Independent (Sept. 1, 2017), www.independent.co.uk/news/world/africa/ ethiopia-woman-acid-attack-mouth-melted-shut-husband-atsede-nigussiem-tigrayarea-a7924286.html; see also Amber Henshaw, Acid Attack on Woman Shocks Ethiopia, BBC News (Mar. 28, 2007), http://news.bbc.co.uk/2/hi/africa/6498641.stm. 3 See Simeon Tegel, Colombia Cracks Down on Horrific Wave of Acid Attacks Against Women, USA Today (Jan. 20, 2016), www.usatoday.com/story/news/world/2016/01/20/global post-colombia-acid-attacks-women-law/79065014/; www.bbc.com/news/world-latin-america35349222. 4 See, e.g., Ernie Suggs, Five Years After Savage Acid Attack Christy Sims is Rising Again, The Atlanta Journal Constitution (Jun. 15, 2018), www.ajc.com/news/don-feel-sorry-for-myself/ WR8upjSHk8wZBoVg0A8OFP/. 5 See Sujoy Dhar, Acid Attacks Against Women in India on the Rise; Survivors Fight Back, USA Today (Jul. 27, 2017), www.usatoday.com/story/news/world/2017/07/27/ acid-attacks-women-india-survivors-fight-back/486007001/. 6 See Grace Yi, Acid Attacks in South Asia, The Yale Global Health Review (Oct. 15, 2015), https://yaleglobalhealthreview.com/2015/10/15/acid-attacks-in-south-asia/ (“Acid attacks occur throughout the world, but disproportionately in South Asia.”). See Human Rights Commission of Pakistan, State of Human Rights in 2017 167 (Mar. 2018), http://hrcp-web.org/publication/wp-content/uploads/2018/04/State-of-HumanRights-in-2017.pdf (Eighteen (18) incidents of acid burning were recorded in Pakistan in 2017.); see, e.g., Joanna Bourke-Martignoni, Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women 21 (Jun. 2001), www.omct.org/ files/2001/01/2196/vietnameng2001.pdf (In Vietnam, the Burn Unit at Cho Ray Hospital in Ho Chi Minh City treated 114 acid burn victims between 1994 and June 1997.); see, e.g., Manoj Shrestha, Acid Attacks: Men are Waging Chemical Warfare on Women and

180  Sital Kalantry et al. high incidence rates of acid attack violence with 225 attacks against women reported in 2016.7 Acid violence is gender-based violence and, as such, international treaty obligations require that the Indian government prevent and redress acid attacks. Non-state actors, such as corporations and businesses, also can and should play a role in preventing and addressing gender-based violence, particularly if they are involved in the supply chains that lead to human rights abuses. In 2011, the United Nations released its Guiding Principles on Business and Human Rights, which explain the role that businesses should play in preventing and remedying human rights violations.8 This chapter claims that producers of acid and businesses that use acid in their operations also have a responsibility under these Guiding Principles to take measures to prevent acid violence and to assist victims with adequate remedy. This chapter draws upon and supplements a transnational field research and advocacy report (the “Acid Violence Report”) on acid attacks.9 The section ‘Causes and Consequences of Acid Attack Violence in India’ describes acid violence, its causes and consequences in the Indian context. Section ‘India’s Due Diligence Obligations to Combat Acid Violence under the CEDAW’ outlines India’s due diligence obligations with regard to acid attack violence under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Section ‘Corporate Accountability for Acid Violence in India’ then examines the evolution of the business and human rights framework and makes the case for corporate accountability for acid attack violence in India. The last section concludes the chapter, arguing that the state and corporations benefiting from the sale and use of acid have due diligence obligations to address these harms.

Getting Away With It, Nepali Times (May 18–24, 2017), http://archive.nepalitimes.com/ issue/349/Nation/13549#.XNstG9NKj-Y (In Nepal, women’s rights organizations reported dozens of attacks in the eastern part of the country between 2004 and 2007.). Acid attacks also have been reported in Laos and Sri Lanka. See, e.g., Jordan Swanson, Acid Attacks: Bangladesh’s Efforts to Stop the Violence, 3 International Health 1, 2 (2002), www.hcs.harvard. edu/~epihc/currentissue/spring2002/swanson.php (last visited Mar. 30, 2019) (finding acid attacks reported in Laos); see, e.g., Sri Lankan Student in Coma After Acid Attack, SBS News (Feb. 24, 2015), www.sbs.com.au/news/sri-lankan-student-in-coma-after-acid-attack. 7 National Crime Records Bureau, Crime in India 2016 135 (Oct. 2017), http://ncrb.gov.in/ StatPublications/CII/CII2016/pdfs/NEWPDFs/Crime%20in%20India%20-%202016%20 Complete%20PDF%20291117.pdf [hereinafter Crime in India 2016 Report]. 8 John Ruggie (Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, 17, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) [hereinafter UNGPs]. 9 See Avon Global Center for Women and Justice at Cornell Law School et al., Combating Acid Violence in Bangladesh, India and Cambodia (2010) [hereinafter Avon Global Center Report]. Stella Kwon, Gary Liao, and Kahina Selmouni conducted significant research for the report, including field-work in India, Cambodia, and Bangladesh. The authors of this article are the Report’s principal authors.

Acid attacks in India 181

Causes and Consequences of Acid Attack Violence in India Shanti10 married her husband when she was fourteen years old. Her husband abused her and continuously harassed her and her family for additional dowry. After fourteen years of her husband’s abuse, she and her children moved out of their home. Her husband apologized for his behavior, promised to change, and persuaded her to return to him. When she returned, however, her husband began harassing her for dowry again. Shanti felt that her husband was “troubled” that she had been living independently of him and assumed she was unfaithful to him. On the morning of October 10, 2001, when Shanti brought her husband his morning cup of coffee, he threw acid at her, severely burning her face and neck. First, Shanti was taken to a local government hospital. The hospital refused to treat Shanti because her injuries were related to a “police case” and the hospital did not want to get involved in a legal matter. She then went to another hospital where she stayed for nineteen days and received only minimal “treatment” – medical staff rubbed ointments on her burn wounds that caused further damage. Only after a private hospital admitted her did a surgeon remove the burned skin. In order to finance her treatment at the private hospital, Shanti had to sell many pieces of her jewelry. As a consequence of the attack, Shanti lost vision in one eye. Acid also dissolved one of her earlobes, seeped into her inner ears, and left her completely deaf in one ear. The police came to speak to Shanti one week after the attack; her trial, however, began some three years later. The authorities charged her husband under Section 326 of the Indian Penal Code for “voluntarily causing grievous hurt by dangerous weapons or means.”11 When Shanti appeared in court, the judge told her to cover her face because he could not bear to look at her. The court ultimately convicted her husband and sentenced him to six years in prison and a Rs. 8,000 ($177 USD) fine. The attack drastically altered the socio-economic standing of Shanti’s family. Shanti could no longer rent a home in a middle-class neighborhood. She applied for government subsidized housing but did not receive an answer from the government. Although she received government compensation of Rs. 2 lakhs (Rs. 200,000 or $4,522 USD), she remains deeply in debt, and her monthly medical expenses continue to exceed Rs. 1,000 ($22 USD). She has had trouble maintaining steady employment, and the stress and trauma of being an acid violence survivor has led to the development of a heart condition. Shanti is one of many victims-survivors of acid attack violence in India. Acid attack violence involves intentional acts of violence in which perpetrators throw,

10 The interviewee’s name has been changed to protect confidentiality. 11 The Criminal Law (Amendment) Act, No. 13 of 2013, India Code (1860), www.prsindia. org/sites/default/files/bill_files/Criminal_Law_%28A%29%2C_2013.pdf.

182  Sital Kalantry et al. spray, or pour acid onto the victims’ faces and bodies, often intending to permanently disfigure and cause extreme physical and mental suffering to victims.12 Acid attacks cause immediate damage, disfigurement, pain, and long-lasting medical complications for victims. At first contact, acid feels like water on the body, but within seconds, it causes an intense burning sensation that quickly increases to cause extreme pain.13 If not washed off and neutralized immediately with water, acid can melt away a victim’s skin and flesh, going as far as dissolving bones.14 When thrown onto the face, acid quickly burns and destroys victims’ eyes, eyelids, ears, lips, noses, and mouths.15 In five seconds, acid causes superficial burns, and in thirty seconds, acid produces full-thickness burns.16 Victims suffer the most physical pain from superficial wounds rather than deeper burns, as deeper wounds burn off the nerve cells.17 Burned skin dies, turns black and leathery, and severe scarring results.18 After the attacks, victims are at risk of breathing failure due to the inhalation of acid vapors, which cause either a poisonous reaction or swelling in the lungs.19 In the weeks or even months after the attack, acid burn victims who survive may suffer from infections, which can also cause death if not treated with proper cleaning techniques and antibiotics.20 Victims must endure painful surgical procedures just to prevent or mitigate further harm and suffering.21 If not washed off immediately, acid continues to burn the skin, eventually causing skeletal damage22 and organ failure.23 If dead skin is not removed from the victims’ bodies within a few days, the new skin may grow and cause further facial deformities.24 If there is burned skin tissue around the neck or armpit areas, medical professionals must remove it to facilitate

12 See Avon Global Center Report, supra note 9, at 1. 13 See Md. Shahidul Bari & Md. Iqbal Mahmud Choudhury, Acid Burns in Bangladesh, 14 Annals of Burns & Fire Disasters 115 (2001). 14 Cambodian League for the Promotion of Human Rights (LICADHO), Living in the Shadows: Acid Attacks in Cambodia 10 (2003), www.licadho-cambodia.org/reports/ files/41acid%20report%20English.pdf [hereinafter Living in the Shadows]. 15 See Law Commission of India, The Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code and a Law for Compensation of Victims of Crime, Report No. 226 (Jul. 2009), http://lawcommissionofindia.nic.in/reports/report226.pdf [hereinafter Law Commission of India Report]; Bari & Choudhury, supra note 13, at 122. 16 See Bari & Choudhury, supra note 13, at 120. 17 Interview with Dr. Satish, Specialist in Reconstructive Surgery, Apollo Private Hospital, in Mysore, India (Jan. 15, 2010) [hereinafter Dr. Satish Interview]. 18 See Bari & Choudhury, supra note 13, at 115; A. Faga et al., Sulphuric Acid Burned Women in Bangladesh: A Social and Medical Problem, 26 Burns 701, 707 (2000); see also Law Commission of India Report, supra note 15, at 10. 19 Law Commission of India Report, supra note 15, at 10; Living in the Shadows, supra note 14, at 10. 20 Law Commission of India Report, supra note 15, at 12. 21 Dr. Satish Interview, supra note 17. 22 See id. 23 See, e.g., Acid Attack Victim Succumbs to Burns, The Hindu (Apr. 12, 2010), www.hindu. com/2010/04/12/stories/2010041262981000.htm. 24 Dr. Satish Interview, supra note 17.

Acid attacks in India 183 movement. After a while, skin may grow back and grow over victims’ eyelids or nostrils, or pull on existing skin resulting in the formation of lumps.25 To avoid severe pain and further disabilities, acid burn victims – especially children whose bodies are still growing – need staged surgeries and constant physical therapy to ensure that scarred tissue remains elastic and does not harm other parts of the body.26 Acid violence also leads to serious mental and emotional suffering. Survivors report higher levels of anxiety and depression; increased self-consciousness and lower levels of self-esteem as a result of their appearances,27 isolation; and marginalization. Suicide is common among acid attack survivors.28 Statistics on acid attacks are not reliable. Before the Indian Penal Code (IPC) was amended in 2013 to include specific provisions on acid violence,29 the Indian government did not maintain separate data on the incidence and prevalence of acid attacks. The authors’ review of Indian newspapers found 153 reported acid violence cases from January 2002 to October 2010. This number most likely underrepresents the true scope of acid violence in India during these years because not all attacks are reported in print media. The Campaign and Struggle Against Acid Attacks on Women (CSAAAW), a regional organization, found that there were 68 reported acid attacks between 1999 and 2008 in the State of Karnataka alone, suggesting that the national number is much higher than 153 for the period between January 2002 to October 2010.30 From 2010 through 2014, Acid Survivors Foundation India (ASFI) collated data from newspaper reports, indicating that acid attack incidence rates were on the rise, with 80 victims in 2010, 106 in 2011, 106 in 2012, 122 in 2013 and 130 as of November of 2014.31 Official India crime data show that, in 2016, there were 225 reported acid attacks.32

25 Id. 26 See Cambodian Acid Survivors Charity (CASC), Breaking the Silence: Addressing Acid Attacks in Cambodia 5, 29 (2010) [hereinafter Breaking the Silence]; Interview with Ziad Samman, Coordinator, Sophea Chhun, Program Manager, Dr. Horng Lairapo, Medical & Legal Manager, & Pin Domnang, Unit Coordinator & Administrative Manager, Cambodian Acid Survivors Charity (CASC), in Phnom Penh, Cambodia (Mar. 22, 2010). 27 Mamta Patel, A Desire to Disfigure: Acid Attack in India, 7(2) International Journal of Crime and Social Theory 1, 2 (Dec. 2014), http://ijcst.journals.yorku.ca/index.php/ijcst/ article/viewFile/39702/35950. 28 See, e.g., Declan Walsh, Years After Acid Horror, Suicide Stirs Pakistan, New York Times (Apr. 9, 2012), www.nytimes.com/2012/04/10/world/asia/hope-in-pakistan-for-curb ing-acid-attacks.html?pagewanted=all. 29 The Criminal Law (Amendment) Act, supra note 11. 30 See Law Commission of India Report, supra note 15, at 7. 31 Harsimran Gill & Karen Dias, Indian Acid Attack Victims Share Their Stories, Aljazeera (Mar. 10, 2016), www.aljazeera.com/indepth/features/2016/03/indian-acid-attack-victimsshare-stories-160309074926141.html. 32 Crime in India 2016 Report, supra note 7; see also Atish Patel, Reports of Acid Attacks in India are on the Rise and That’s a Good Thing, The Wall Street Journal (Mar. 21, 2015), https://blogs.wsj.com/indiarealtime/2015/03/21/reports-of-acid-attacks-in-indiaare-on-the-rise-heres-why-thats-a-good-thing/.

184  Sital Kalantry et al. Gender discrimination motivates a significant majority of acid attacks. Perpetrators throw acid on women and girl-victims for transgressing traditional, subordinating gender roles.33 For example, Indian newspapers reported between January 2002 and October 2010 that sexual harassment – often in the form of rejected love, sex, or marriage proposals – motivated attacks in 35% of the stories that included a motive for the attack.34 Additionally, husbands perpetrate a large portion of acid attacks against their wives.35 Further, a wife’s parents’ refusal to give more money for dowry is frequently cited as a reason for acid attacks perpetrated by the husband or the husband’s family.36 Finally, newspaper stories from India indicated that, of the reports that identified motive, nearly 20% of the attacks were between unrelated people because of business disputes, sales disputes, land disputes, or revenge between families. Even these cases are gendermotivated because attacking an unmarried daughter might impose greater financial burdens on the family, as the daughter will be viewed as unmarriageable and therefore an encumbrance.37

India’s Due Diligence Obligations to Combat Acid Violence under the CEDAW Acid attack violence is a form of gender-based violence. Under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), states parties are obligated to prevent and adequately respond to all forms of gender discrimination, including gender-based violence.38 Specifically, the CEDAW

33 Avon Global Center Report, supra note 9, at 2. 34 Id. at 18; Campaign and Struggle Against Acid Attacks on Women (CSAAAW), Burnt Not Defeated 30 (2007) [hereinafter CSAAAW Report]. 35 See id. at 21, 24 (recounting Shanti’s story, among others); see also Crime in India 2016 Report, supra note 7, at xix (In India, 32% of crimes against women in 2016 were recorded in the category of “cruelty by husbands or relatives.”). 36 Avon Global Center Report, supra note 9, at 18. 37 Id. at 20. 38 See Article 1, Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW], Dec. 18, 1979, 1249 U.N.T.S. 13, 19 I.L.M. 33 (1980); CEDAW Committee, General Recommendation No. 19: Violence Against Women (1992), https:// tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/INT_ CEDAW_GEC_3731_E.pdf, at ¶ 6 (The Committee on the Elimination of all forms of Discrimination Against Women (CEDAW Committee), which monitors State compliance with the treaty, describes gender-based violence as “violence that is directed against a woman because she is a woman or that affects women disproportionately.”) [hereinafter General Recommendation No. 19]. We note that, although CEDAW recognizes gender-based violence as something that occurs only to women, it is recognized that men can also be subject to violence because of their gender. See, e.g., Judy A. Benjamin & Khadija Fancy, The Gender Dimensions of Internal Displacement 14 (Nov. 1998), https://reliefweb.int/sites/reliefweb. int/files/resources/0D530FFE231BCDB6C1256C360045B8B4-Gender%20Dimension. pdf; United Nations International Research and Training Institute for the Advancement of Women (INSTRAW), Partners in Change: Working with Men to End Gender-Based Violence (2002), http://menstoppingviolence.org/cms/docs/PartnersInChangepp1-37.pdf;

Acid attacks in India 185 Committee and the Special Rapporteur on Violence Against Women, Its Causes and Consequences has recognized that states must act with due diligence to prevent violations of human rights, including acts committed by private, non-state actors.39 According to the Special Rapporteur, the State’s due diligence obligation includes the duty to prevent, protect, investigate, prosecute, punish, and provide redress to victims.40 Below we discuss India’s duties as State party to the CEDAW to combat acid violence as a form of gender-based violence.

Acid Violence is Gender-Based Violence Gender-based violence is any form of violence that either disproportionately affects women or results from gender discrimination and inequality. The CEDAW Committee has noted that gender-based violence both results from and perpetuates traditional discriminatory attitudes that confine women and girls to stereotypical, subordinate roles and positions.41 Acid violence both disproportionately affects women and girls and results from gender discrimination and inequality. From our analysis of media reports, we found that 72% of reported cases of acid attacks are perpetrated against women.42 In addition, acid violence results from gender discrimination and inequality. Although acid violence occurs in many countries, it is particularly prevalent in contexts in which there is significant gender discrimination. India ranks very low on the Global Gender Gap Index, which measures national economic, educational, health, and political equality between men and women.43 In 2018, India ranked 108 out of 149 countries included in the Global Gender Gap Index.44

Human Rights Watch, The War Within the War: Sexual Violence Against Women and Girls in Eastern Congo (Jun. 2002), www.hrw.org/reports/2002/drc/Congo0602.pdf; Jeanne Ward, If Not Now, When? (2002), www.womensrefugeecommission.org/tags/srh/docu ment/download/241; R. Charli Carpenter, Recognizing Gender-Based Violence Against Civilian Men and Boys in Conflict Situations, 37 Security Dialogue 83 (2006). 39 The Special Rapporteur on Violence Against Women, its Causes and Consequences, Yakin Ertürk, Report on The Due Diligence Standard as a Tool for the Elimination of Violence Against Women, 20, delivered to the Economic and Social Council Commission on Human Rights, U.N. Doc. E/CN.4/2006/61 (Jan. 20, 2006) [hereinafter Special Rapporteur on Violence Against Women, Yakin Erturk]. See General Recommendation No. 19, supra note 38, at 9. 40 Special Rapporteur on Violence Against Women, Yakin Erturk, supra note 39, at 35. 41 See General Recommendation No. 19, supra note 38, at 11 (remarking that “[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision”) [emphasis added]. 42 Avon Global Center Report, supra note 9, at 13. 43 See World Econ. Forum, The Global Gender Gap Report 2018 (2018), http://www3.wefo rum.org/docs/WEF_GGGR_2018.pdf [hereinafter The Global Gender Gap Report]. 44 Id.; see also Francis Kuriakose, Neha Mallick & Deepa Kylasam Iyer, Acid Violence in South Asia: A Structural Analysis toward Transformative Justice, 2(1) SAGE Publications (2017)

186  Sital Kalantry et al. A strong societal preference for sons is another indicator of the undervaluation of women relative to men. In India, the child sex ratio, defined as number of girls for every 1,000 boys age 0 to 6, has decreased from 927 in 2001 to 919 in 2011,45 which indicates that son preference has become even more prevalent in the country in recent years. In 2017, one study found that among Indian women aged 15 to 49, only 4% want to have more daughters than sons, whereas 19% want to have more sons than daughters.46 Perpetrators often intend to destroy what society considers one of the most valuable traits of a woman – her beauty. One author who interviewed rejected suitors who perpetrated acid attacks in Bangladesh noted that perpetrators mean to “punish” women for being “proud” of their attractive features.47 In addition, some perpetrators also intend to burden an entire family by attacking the female family member given that society will consider the victim unmarriageable and must thereafter be supported by her family. Acid violence not only reflects gender discrimination and inequality but also perpetuates it. Society shuns survivors whose faces have been severely burned. Some survivors cover their faces when going outside of their houses to avoid stares and comments from onlookers. Many people consider victims’ scarred faces to be bad omens.48 In societies where many “girls grow up to get married,” a girl’s value is often measured in terms of her ability to marry and marry well.49 Thus, destroying a young girl’s marriage prospects by disfiguring her can amount to ending her life by making her worthless from the perspective of many in society.50 Acid violence victims are often perceived to have committed an immoral act, such as having an extramarital affair.51 As a result of this alleged or real social transgression, others in their communities may view them as outcasts and even believe that they deserved their fates.52 One expert noted that “[a]fter an attack,

(arguing for the need for a structural approach to acid attacks that considers socio-economic issues, including neo-liberal reform policies). 45 Government of India, A-5 Union Primary Census Abstract – 2011, www.censusindia.gov. in/2011census/hlo/pca/PCA_Data_India.html. 46 International Institute for Population Sciences (IIPS), National Family Health Survey (NFHS-4) (Dec. 2017), https://dhsprogram.com/pubs/pdf/FR339/FR339.pdf. 47 Interview with Md. Mahbubul Haque, Trustee & Director, Policy Research Center, in Dhaka, Bangladesh (Dec. 10, 2009) [hereinafter Md. Mahbubul Haque Interview]. 48 Interview with Rehana Rahman, Samina Afrin, Jahanara Ansar, Masreen Awal Mintoo, and Cynthia Farid, Program Officer, ABA Rule of Law Initiative, in Dhaka, Bangladesh (Dec. 10, 2009) (statement by Cynthia Farid). 49 Id. (“A lot of the women here, they grow up with the desire to get married.”). 50 Id. 51 See NGO Roundtable Discussion hosted by the Cambodian League for the Promotion & Defense of Human Rights (LICADHO), in Phnom Penh, Cambodia (Mar. 23, 2010); interview with Usha, Campaign and Struggle Against Acid Attacks on Women (CSAAAW), in Bangalore, India (Jan. 19, 2010) [hereinafter Usha Interview]; Md. Mahbubul Haque Interview, supra note 47. 52 See Md. Mahbubul Haque Interview, supra note 47; Breaking the Silence, supra note 26, at 34.

Acid attacks in India 187 if you talk to neighbors, they will say, ‘Why was this particular woman [attacked]? There must have been problems with her.’ ”53 Thus, acid violence victims almost always face social stigma after the attack.54 Acid attacks are interpersonal acts of violence and are rarely specifically motivated by a desire to promote fear among other women. Nonetheless, individual incidents of acid attacks may make women fearful of transgressing social norms that keep them in subordinated positions. Acid violence has the effect of signaling, not only to victims, but also to all women in a society in which such violence widely occurs, that they must not counter prevailing gender norms. Consequently, acid violence is gender-based violence as defined by the CEDAW because acid attacks both disproportionately affect women and perpetuate gender inequality. By viewing acid violence as gender-based violence obligates India, which has ratified the CEDAW, to combat all forms of discrimination against women, including acid violence.

India’s Due Diligence Obligations to Prevent and Adequately Respond to Acid Violence Given that acid violence is gender-based violence, India is obligated to combat it, including through: preventing acid attacks by, among other things, enacting and enforcing laws to specifically address acid violence, its causes and consequences; investigating attacks; protecting victims and witnesses to attacks; prosecuting and punishing perpetrators; and remedying victims’ harms. India has made some progress in fulfilling its obligations under the CEDAW with regard to acid violence, outlined in the following section, with suggestions for further reform.

Enacting Effective Laws to Combat Acid Violence The duty to prevent human rights violations includes an obligation to enact legislation designed to ensure that women are free from gender-based violence.55 Both the Law Commission of India56 and the National Commission for Women (NCW)57 long supported enacting amendments to the IPC and Indian Evidence

53 Md. Mahbubul Haque Interview, supra note 47. 54 Interview with Anonymous, NGO, in Phnom Penh, Cambodia (Mar. 23, 2010) (“Many people are prejudiced against the mistress; many believe she deserves the attack.”). 55 See General Recommendation No. 19, supra note 38, at 9, 24. In A.T. v. Hungary, the CEDAW Committee found that Hungary violated its obligations under the CEDAW by failing to enact legislation designed to combat domestic violence and sexual harassment, and to provide “protection or exclusion orders or shelters exist[ing] for the immediate protection” of victims of domestic violence. CEDAW Committee, Comm. 2/2003, A.T. v. Hungary, ¶ 9.3, A/60/38 (Part I) (Jan. 26, 2005). 56 Law Commission of India Report, supra note 15, at 43. 57 Both the Law Commission of India and the National Commission for Women recommended adding a section 326A to the Indian Penal Code and a section 114B to the Indian Evidence Code. Id. at 43–44; National Commission for Women, Prevention of Offences

188  Sital Kalantry et al. Code to address acid attack violence. While the government stated in a public interest litigation court filing in April 2010 before the Supreme Court of India that the “existing legislations are sufficient to deal with the offense of acid attack,”58 authorities later reversed this position, at least with respect to adopting criminal provisions. Before enacting specific provisions on acid attacks, some judges applied criminal code provisions that required less serious criminal penalties when compared to the magnitude of harm.59 It was the horrific gang rape and death of 23-year-old student Jyoti Singh Pandey on a bus in Delhi in December 201260 that galvanized the Indian Parliament to adopt specific measures against acid violence. The incident made international headlines and generated national protests. As a result, the government convened the Justice Verma Committee to propose a series of amendments to improve the criminal justice response to gender-based violence crimes.61 On January 23, 2013, the Committee recommended that the Indian Parliament pass proposed amendments to the IPC explicitly to criminalize acid attacks, to increase punishment for perpetrators, to ensure that perpetrators pay fines to victims, and to establish a state victim compensation scheme for such crimes.62 Shortly thereafter, in response to international and national pressure, the Parliament passed amendments to laws strengthening the state response to genderbased violence, including acid attacks. Specifically, the Indian legislature amended the IPC to include Articles 326A and 326B, nationally criminalizing acid attacks and attempted acid attacks.63 As a result, the government now considers acid attacks

(by Acids) Act 2008 – Draft Bill 15–16 (2008) (cited in Avon Global Center Report, supra note 9, at 33). 58 Dhananjay Mahapatra, No Change in Law Needed to Make Acid Attack a Heinous Offence: Centre, Times of India New Delhi Edition (Apr. 15, 2010) at 10, http://timesofindia. indiatimes.com/india/No-change-in-law-needed-to-make- acid-attack-a-heinous-offenceCentre/articleshow/5804710.cms (last visited May 16, 2019). 59 Ajita Tandon, Analysis of the Judicial and Legislative Approach on Acid Attack Victims in India, 1 NCRB Journal 44, 45–46 (2018), http://ncrb.gov.in/NCRB_Journal/NCRB_ Journal_October_2018.pdf [hereinafter Tandon]. 60 See Niharika Mandhana & Anjana Trivedi, Indians Outraged Over Rape on Moving Bus in New Delhi, New York Times (Dec. 18, 2012), https://india.blogs.nytimes. com/2012/12/18/outrage-in-delhi-after-latest-gang-rape-case. 61 Committee on Amendments to Criminal Law, Report of the Committee on Amendments to Criminal Law 146–148 (Jan. 2013), www.prsindia.org/uploads/media/Justice%20 verma%20committee/js%20verma%20committe%20report.pdf [hereinafter Justice Verma Committee Report]. 62 Id. 63 Amendments: Articles 326A & B of the IPC. The new provisions read as follows: 326A. Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:

Acid attacks in India 189 and other similar attacks to be specific crimes causing “grievous hurt.”64 The law mandates that perpetrators receive a minimum of ten years and a possibility of life sentences in prison and pay fines directly to victims to cover their medical expenses.65 Perpetrators who attempt an acid attack can receive five to seven years in prison and fines.66

The amendments also modified the Criminal Procedure Code (CPC). Section 357B ensures that victims of acid attacks receive state compensation in addition to perpetrator fines.67 Section 357C mandates that all public and private hospitals provide free first aid and medical treatment to acid violence victims and report incidents immediately to police.68 Moreover, amendments to Section 100 of the CPC include a specific right of self-defense, including causing the perpetrator’s death, in the case of an acid attack or attempted acid attack.69 Parliament has not enacted legislation specifically addressing acid supply chains or corporate accountability for acid attacks.70 One of the reasons acid violence occurs is the cheap and easy availability of acid. On July 16, 2013, after a string of acid attacks,71 the Indian Supreme Court ruled in WP(Crl.)129 of 2006 Laxmi

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim: Provided further that any fine imposed under this section shall be paid to the victim. 326B. Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine. 64 The Criminal Law (Amendment) Act, supra note 11. 65 Id. 66 Id. 67 See id. (“The compensation payable by the State Government under section 357A shall be in addition to the payment of fine to the victim under section 326A or section 376D of the Indian Penal Code.”) 68 Id. (“All hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code and shall immediately inform the police of such incident.”) 69 Id. (“Section 100: The right of private defence [sic] of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: ‘Seventhly – An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.’ ”) 70 Id. (“In addition, there has been several directions issued by the Hon’ble Supreme Court of India regarding compensation, free medical treatment and regulating sale of acids, all of which have been welcomed by us.”) 71 See India Gender Violence: Four Sisters Severely Burnt in Acid Attack, International Business Times (Jul. 1, 2014), www.ibtimes.co.uk/acid-attack-india-uttar-pradesh-sisters-gangrape-453001;

190  Sital Kalantry et al. v. Union of India & Ors.72 that the Federal and state governments must regulate the sale of acid used to perpetrate acid violence.73 Specifically, the order mandates that: • States and union territories issue licenses to retailers who sell acid; • Retailers do not sell acid over the counter unless they keep record of the quantities sold and the details, including addresses, of buyers; • States and retailers prohibit sales of hydrochloric, nitric, and sulfuric acid to anyone under 18 years old; • Buyers present photo identification and declare purpose for purchasing acid; • Retailers declare the amount of acid they have stocked to the Police; and • Police confiscate any undeclared stock and fine retailers up to 50,000 rupees.74 Years after this order, acid continues to be easily available in India. The Indian government has not passed a specific statute prohibiting acid sales,75 and police rarely enforce the existing Supreme Court guidelines and laws.76 Following Bangladesh’s example, India should adopt a law regulating acid sales. In 2002, Bangladesh adopted the Acid Crime Control Act (ACCA) and the Acid Control Act (ACA). The ACCA heightened criminal penalties and tightened criminal procedures for acid violence cases, and the ACA created a licensing regime that regulates the sale, storage, distribution, and use of acid.

Neeta Lal, Acid Attacks Still a Burning Issue in India (Apr. 2015), www.ipsnews.net/ 2015/04/acid-attacks-still-a-burning-issue-in-india/. 72 See Mohit Singh, Laxmi v. Union of India – (2014) 4 SCC 427 – (Acid Attack Compensation Order), 1, Law Street (Dec. 8, 2015), http://onelawstreet.com/2013/07/ laxmi-vs-union-of-india-2014-4-scc-427-acid-attack-compensation-order/. 73 See India Supreme Court Orders Curb on Sales of Acid, BBC News (Jul. 18, 2013), www.bbc. com/news/world-asia-india-23358264; KumKum Dasgupta, India’s Acid Attack Survivors Welcome Rules to Help Stop Rise in Assaults, The Guardian (Jul. 18, 2013), www.the guardian.com/global-development/2013/jul/18/india-acid-attack-survivors-compen sation; India’s Top Court Moves to Curb Acid Attacks, Aljazeera (Jul. 18, 2013), www. aljazeera.com/news/asia/2013/07/2013718134222947132.html. 74 See India Supreme Court Orders Curb on Sales of Acid, supra note 73; see also, #India – SC Order Regarding Acid Attacks #Vaw #Womenrights, Kractivist.org, https://kractivist.org/ india-sc-order-regarding-acid-attack-vaw-womenrights/. 75 But see The Poisons Act, No. 12 of 1919, India Code (1860), https://indiacode.nic.in/ bitstream/123456789/5751/1/the_poisons_act%2C_1919.pdf (regulating poisonous substances without specifically enumerating acid). See Tandon, supra note 59, at 46. 76 Snigdha Poonam, Four Years After the Ban, Acid Sales in Free Flow Under Supreme Court’s Nose, Hindustan Times (Apr. 4, 2017), www.hindustantimes.com/india-news/four-yearsafter-ban-acid-sales-in-free-flow-under-supreme-court-nose/story-00tu9xW1AEFGw MChlrp7ML.html; Shweta Sengar, Despite SC Ban Stating Acid Attacks ‘Heartless’ Crime, Acid Sales in Free Flow Across Country, India Times (Mar. 19, 2019), www.indiatimes. com/news/india/despite-sc-ban-stating-acid-attacks-heartless-crime-acid-sales-in-freeflow-across-country-363940.html.

Acid attacks in India 191 Since Bangladesh passed laws regulating the sale of acid in 2002, reported acid attacks have been steadily decreasing by 15% to 20% each year.77 Although Bangladesh’s two acid violence laws were adopted in 2002, heightened penalties for perpetrating acid attacks had been in effect since 1984. In that year, Bangladesh adopted a new section of its penal code (Section 326A), allowing judges to impose the death penalty if the victim had been blinded or her head or face was permanently disfigured.78 However, despite the adoption of the death penalty for acid violence in 1984, the number of acid attacks reported in Bangladesh continued to increase until 2002.79 Enacting the Acid Control Act in 2002 marked the first time that Bangladesh took steps to regulate and monitor the use, sale, purchase, storage, transportation, import, and export of acid, and to punish unauthorized sales.80 The significant decrease in acid attacks after 2002 is associated with the introduction of acid regulations, changes to the criminal justice system, and increased public awareness of criminal punishment and consequences for acid attack victims.81 This decrease in attacks occurred despite problems with enforcement of the acid regulations.82 Thus, the Indian government should consider strengthening its acid sale and control laws as a way to counter acid attacks.

Ensuring Implementation of Laws India must not only enact targeted legislation and policies to address acid violence, but it must also implement such laws. In a case against Austria, the CEDAW Committee concluded that due diligence obligations require that states implement laws to combat gender-based violence.83 Although India increased penalties for acid attacks in 2013, implementation and enforcement of the IPC is critical for compliance with due diligence obligations. In order to effectively

77 Acid Survivors Foundation (ASF), Annual Report 2015, www.acidsurvivors.org/images/ frontImages/Annual_Report_-_2015.pdf, at 8. (In 2010, there were 122 incidents, then 91 (2011), 71 (2012), 70 (2013), 59 (2014), 59 (2015), 44 (2016), 39 (2017) and 18 (2018)) [hereinafter ASF Annual Report 2015]. 78 Bangl. Pen. Code, No. XLV of 1860 § 326 A. 79 ASF Annual Report 2015, supra note 77. 80 Bangl. Acid Control Act (ACA), Ch. 4, No. 1 of 2002. 81 ASF Annual Report 2015, supra note 77; e-mail from Dr. Saira Rahman Khan, Assistant Professor of Law, BRAC University, and member, ODHIKAR, to Jocelyn Getgen Kestenbaum (Dec. 20, 2010, 12:03:09 AM EST). 82 Bangl. Acid Control Act (ACA), Ch. 4, No. 1 of 2002. 83 In Yildrim v. Austria and Goekce v. Austria, the CEDAW Committee concluded that, although Austria had established a comprehensive framework to address domestic violence, the state failed to satisfy its due diligence obligation of protection with respect to these two victims. The abused victims’ murders directly resulted from the state authorities’ failure to respond in a timely and appropriate fashion to a situation they knew or should have known to be extremely dangerous. See CEDAW Committee, Comm. 6/2005, Yildrim v. Austria, CEDAW/C/39/D/6/2005, 12.1.4 (Aug. 6, 2007); CEDAW Committee, Comm. 5/2005, Goekce v. Austria, CEDAW/C/39/D/5/2005, 12.1.6 (Aug. 6, 2007).

192  Sital Kalantry et al. implement laws designed to combat acid violence, India must: (1) conduct appropriate investigations, (2) protect victims from threats that could undermine those investigations, and (3) prosecute and punish perpetrators of acid attacks. The Union and state governments must make greater efforts to implement existing laws against acid violence, including the Indian Supreme Court order in Laxmi v. Union of India & Ors.84

Duty to Investigate India’s due diligence obligation to protect individuals from violence encompasses the duty to conduct serious, impartial, prompt, and effective investigations.85 According to the Inter-American Court of Human Rights, deficiencies in investigations “often prevent and/or obstruct further efforts to identify, prosecute and punish those responsible.”86 Though not binding on India, it is useful to note that the Inter-American Court of Human Rights recently affirmed that the State has a heightened duty of care in investigating matters concerning violence against women.87 India’s commitment to serious and effective investigations reiterates the condemnation of violence against women by society and ensures women’s trust in the authorities’ ability and dedication to protect them from violence.88 Acid victims note that they are reluctant to report acid attacks to the police because they fear harassment and ridicule from police officers.89 Some police officers espouse blatantly sexist views. For instance, an advocate recounted that one police officer, when asked why he felt that certain women are attacked with acid, answered: “These women dress up like boys. What do they expect?”90 Additionally, officers may frame acid violence investigations in terms of a woman’s sexual history and questions of morality.91 For example, an investigating officer blamed one victim for the acid attack against her, saying that she instigated the crime

84 Indian Supreme Court, WP(Crl.)129 of 2006 Laxmi v. Union of India & Ors. 85 See, e.g., Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H. R. (Ser. C) No. 4, at 177 (Jul. 29, 1998); González et al. (“Campo Algodonero”) v. The United States of Mexico, InterAm. Ct. H. R., (Ser. C) No. 205, at 289 (Nov. 16, 2009); Opuz v. Turkey, App. 33401/02, 161 (Eur. Ct. H. R., June 9, 2009); Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res. 60/147, Part. II.3.b, U.N. GAOR, 60th Sess., 64th plen. mtg., U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter Basic Principles and Guidelines on the Right to a Remedy and Reparation]. 86 Inter-American Court of Human Rights, The Situation of the Rights of Women in Ciudad Juárez, Mexico: The Right to Be Free from Violence and Discrimination, OEA/Ser.L/V/ II.117, Doc. 44, Mar. 7, 2003, 137. 87 See González et al. (“Campo Algodonero”) v. The United States of Mexico, supra note 85, at 293. 88 See id. (analogizing its approach to violence against women with the European Court of Human Rights’ approach to racial violence). 89 See CSAAAW Report, supra note 34, at 46. 90 Usha Interview, supra note 51. 91 See CSAAAW Report, supra note 34, at 47.

Acid attacks in India 193 by engaging in a series of “affairs” with co-workers, which led to one of the coworkers throwing acid at her.92 The Delhi Deputy Commissioner of Police, who believes that acid violence is a form of gender-based violence, agrees on the need to more broadly “sensitize the police force” to the specific issues faced by acid attack victims.93 Recommendations also have included ensuring that the National Commission of Women or similar bodies take proactive measures to encourage reporting and taking reported threats seriously.94 Additionally, some police officers are susceptible to corruption. Indeed, several acid attack victims reported that their attackers bribed the police with money in order to influence investigations. For example, Jacquiline Asha claims her attacker gave the police a bribe; thereafter she faced threats from the officers to withdraw the case.95 Thus, there are some reported deficiencies in police investigations of acid attacks.

Duty to Protect Victims India’s due diligence obligation includes the obligation to protect the victim from threats and harm by the perpetrator.96 This duty has been recognized as owed to the victim, but could also be extended to include the victim’s family or witnesses in a criminal case against the perpetrator. There are several documented cases in which acid attack victims have received inadequate police protection even when they have complained of harassment by their perpetrators prior to the attack. For instance, acid violence victim Shri Mahaveer Singh filed a police complaint stating that a man was harassing her and threatening to kill her, abduct her, and throw acid on her if she did not marry him.97 Her father requested that police protect his daughter from harm and included the name and description of the man harassing Shri in his complaint.98 The police failed to take any action to protect her, and two years later the harasser threw acid at Shri.99 A subsequent National Human Rights Commission investigation found the police to be negligent in failing to protect Shri and deemed their negligence the proximate cause of the acid burn injuries Shri suffered.100 In

 92 See id. at 48.  93 E-mail message from Sagar Preet Hooda, Deputy Commissioner of Police, Delhi Police, May 2010, in response to a query posted by the KRITI Team on the Resource Team and Members, Solution Exchange for Gender Community – an initiative of UN agencies in India.  94 See Tandon, supra note 59, at 57.  95 See CSAAAW Report, supra note 34, at 50.  96 Special Rapporteur on Violence Against Women, Yakin Erturk, supra note 39, at 20.  97 National Human Rights Commission (NHRC), Action Details, File Number 719/30/98– 99, 14 September 1998 [hereinafter NHRC Action Details File Number 719/30/98–99].  98 Id.  99 Id. 100 Id.

194  Sital Kalantry et al. Dr. Mahalakshmi’s case, the police ridiculed her unmarried status when she filed complaints of harassment against the man who later attacked her with acid.101

Duty to Prosecute and Punish Perpetrators The duty to prosecute and punish perpetrators of violence is an essential part of India’s obligation to act with due diligence to protect women from violence.102 The duty to adequately prosecute and punish may include creating specialized investigatory or prosecutorial units,103 implementing witness and victim protection programs designed, in part, to safeguard the availability of essential testimonial evidence,104 and ensuring that law enforcement procedures and personnel adapt to the specific issues and problems related to gender-based violence.105 Reports indicate that perpetrators of acid attacks are not effectively prosecuted. Given their extensive caseloads and lack of training, public prosecutors do not have the time or resources to properly investigate and prosecute cases.106 For instance, Gita was unconscious for several days after the attack against her and could not give a statement to the police.107 Since then she has attempted several times to meet with the public prosecutor, but he has refused to meet with her.108 One High Court Chief Justice urged more cooperation between victims and prosecutors and allowing victims an opportunity to play a more active role in prosecutions.109 The role of judges is crucial to ensuring that acid attack perpetrators are adequately punished. Gender insensitivity and other structural problems within the Indian judiciary present challenges for the punishment of acid attack perpetrators. In one case, for example, the judge hearing an acid attack case asked the survivor to cover her face when she appeared in court.110 In cases in which judges have imposed stiff punishments on acid attackers, it appears that, in assessing the harm to the victim, judges have given great weight to the fact that the victim has lost her chance to be married and to be a mother.111 Thus, if a judge believes that the perpetrator has prevented a woman from satisfying her traditional role as mother or wife, then the perpetrator is likely to receive a higher sentence.

101 102 103 104 105 106

See CSAAAW Report, supra note 34, at 46. Special Rapporteur on Violence Against Women, Yakin Erturk, supra note 39, 50. Id. Id. Id. See Interview with Sheela Ramanathan, Campaign and Struggle Against Acid Attacks on Women (CSAAAW) & Human Rights Law Network (HRLN) of Bangalore, in Mysore, India (Jan. 18, 2010). 107 Usha Interview, supra note 51. 108 Id. 109 Telephone interview with Justice Bannurathum, Chief Justice of Kerala High Court (Jan. 19, 2010). 110 See CSAAAW Report, supra note 34, at 22–23. 111 See id. at 58.

Acid attacks in India 195

Providing Redress to Victims India’s due diligence obligation includes the duty to provide redress to victims for the violations suffered. Appropriate remedies can take the forms of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.112 Compensation covers awarding monetary damages proportional to the gravity of the violation.113 Rehabilitation includes medical and psychological care as well as legal and social services.114 Remedies for acid attack victims are essential and should include providing adequate healthcare in government facilities, and, where public healthcare is not available, the government should pay the expenses for treatment at private health facilities.115 Additionally, healthcare professionals who first respond to acid attack victims must be trained in the proper first aid response. Moreover, the multiple and complex surgeries survivors require are very costly, and governments should provide the specialized expertise, facilities, and resources for necessary procedures. Finally, although emphasis should be on assisting victims’ transition back to work and to society,116 acid attack survivors should receive compensation if they are unable to work for health reasons or because of the discriminatory attitudes of potential employers.117 Even though the Indian Supreme Court has ordered Indian states to set up Victim Compensation Schemes to compensate a minimum of 300,000 rupees (~$4,800 USD) and ensure free medical care to acid attack victims, we do not know if states have complied with the order.118 The time lag to resolve cases in the Indian court system can further harm victims. In many cases, acid attack survivors do not receive compensation until after the case reaches final resolution.119

112 See Basic Principles and Guidelines on the Right to a Remedy and Reparation, supra note 85, at 18. For a discussion of the right to reparation for women subjected to violence, see The Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rashida Manjoo, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, delivered to the Human Rights Council, U.N. Doc. No. A/HRC/14/22 (Apr. 23, 2010), http://www2.ohchr. org/english/bodies/hrcouncil/docs/14session/A.HRC.14.22.pdf. 113 See Basic Principles and Guidelines on the Right to a Remedy and Reparation, supra note 85, at ¶ 20. 114 Id. at 21. 115 In addition to providing healthcare as a form of reparations, States have independent obligations under human rights law to guarantee the right to health. See, e.g., International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. Res. 2200A (XXI), art. 11, U.N. Doc. A/6316 (Dec. 16, 1966). 116 See Tandon, supra note 59, at 57. 117 See, e.g., CSAAAW Report, supra note 34 (discussing how Kan Chetchea, an acid attack survivor, and his family have no source of income and rely on other family members to provide food); Tanbira Talukder, Acid Throwing – A Serious Human Rights Violation in Bangladesh, Mukto- Mona (discussing the limited employment opportunities for acid attack survivors), www.mukto-mona.com/Articles/talukder/acid_throwings_BD.htm; see Law Commission of India Report, supra note 15, at 4. 118 Laxmi v. Union of India, (2014) 4 SCC 427. 119 See Tandon, supra note 59, at 57.

196  Sital Kalantry et al. Moreover, surgeries for victims often cost much more than the compensation amount. Even private hospitals must provide free medical care according to the Indian Supreme Court, including specialized surgeries, medicines, and food.120 The Indian Supreme Court has mandated that the District Legal Services Authority of each state ensure adequate compensation for claims and take action against private hospitals that refuse to treat acid attack victims.121 Even with Court-mandated treatment, unacceptable quality of treatment continues and can be attributed in part to the lack of facilities for proper care. Most government hospitals in India, like those in the other countries studied, do not have plastic surgeons or medical facilities necessary to conduct essential procedures for acid survivors.122 For instance, in Bangalore, India, the Burn Center at the primary public hospital has about 60 beds for a region with a population of over 12 million people.123 In addition, there is a shortage of plastic surgeons in the country. According to one medical expert, there are only around 2,500 plastic surgeons in a country of 1 billion people.124 Even if there were more trained healthcare professionals, hospitals do not have the facilities and equipment to support them.125 The government has taken a positive step to compensate victims in the Right of Persons with Disabilities Act, 2016.126 The Act’s provisions include acid attack victims under the list of persons with disabilities, giving acid survivors preference for employment, education, and other opportunities.127 In light of the above considerations, India has a primary and continuing obligation to act with due diligence to prevent and adequately respond to acid attack violence. Although the Indian government has made progress toward achieving these goals, much work remains to be done. In the next section, we argue that corporations also have a responsibility under the business and human rights framework to act with due diligence to respect and remedy human rights violations, including acid attacks.

120 Amit Anand Choudhary, Treat Acid Attack Victims for Free, Supreme Court Orders Private Hospitals, The Times of India (Apr. 10, 2015), http://timesofindia.indiatimes.com/ india/Treat-acid-attack-victims-for-free-Supreme-Court-orders-private-hospitals/articleshow/46884560.cms. 121 Laxmi v. Union of India, supra note 118. 122 Dr. Satish Interview, supra note 17. 123 Smitha Sriram Segu, Our Burns Ward, 23 Indian Journal of Burns 9–11 (2015), www. ijburns.com/article.asp?issn=0971653X;year=2015;volume=23;issue=1;spage=9;epage=1 1;aulast=Segu. 124 See Dr. Satish Interview, supra note 17. 125 Id. 126 The Right of Persons with Disabilities Act, No. 49 of 2016, India Code (1860), www. disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf. 127 Id. at § 1(A)(e).

Acid attacks in India 197

Corporate Accountability for Acid Violence in India There is a growing recognition in the international human rights community that transnational corporations have obligations to address and prevent human rights violations. Here, we explain why and how businesses can contribute to reducing acid attacks and the emerging international and domestic laws and norms relating to business and human rights and corporate accountability.

Acid Attacks and Businesses Because of the cheap and easy availability of strong acids in harmful quantities in India, companies that produce and sell acid have a significant and positive role to play to limit the unauthorized sale and use of acid and, therefore, to reduce the number of acid attacks in the country. Whether or not perpetrators use acid in ways that were intended by the manufacturers or retailers, businesses that are part of the acid supply chain and that profit from acid sales can and must act to disrupt the negative consequences of their products’ use or misuse. Perpetrators use acid in ways that makers of acid or businesses that use it in their production do not intend, but these corporate entities should still prevent misuse. United States gun manufacturers, for example, are increasingly held to account for individuals’ misuse of firearms. On December 14, 2012, a severely mentally ill 20-year-old man named Adam Lanza opened fire with a Bushmaster AR-15 semiautomatic rifle and massacred 20 first graders and 6 teachers in 5 minutes at the Sandy Hook Elementary School in Newtown, CT (USA).128 In 2016, families of the Sandy Hook massacre sued Bushmaster Firearms International and Remington Arms Company to remove the military-style rifle from the civilian market.129 The petitioners claimed that the gun manufacturers recklessly sell weapons intended for use in mass killings to civilians and deliberately market such weapons to young civilian males.130 Thus, even if not an explicit use of firearms, gun manufacturers may have a duty to prevent and remedy harms resulting from such use. Although acid, unlike firearms, is not something that one naturally assumes can be used to injure and kill people, many people in India – including the people who operate the businesses that manufacture and use acid – know that acid is used to perpetrate violence and sell acid with little to no regulation or oversight.

128 James Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, New York Times (Dec. 14, 2012), www.nytimes.com/2012/12/15/nyregion/shoot ing-reported-at-connecticut-elementary-school.html. 129 Donna Soto v. Bushmaster Firearms, No. FBT CV 15 6048103 S (D. Fairfield filed Oct. 29, 2015), http://civilinquiry.jud.ct.gov/DocumentInquiry/DocumentInquiry. aspx?DocumentNo=9626283. 130 Id.; Rick Rojas & Kristin Hussey, Sandy Hook Massacre: Remington and Other Gun Companies Lose Major Ruling Over Liability, New York Times (Mar. 14, 2019), www.nytimes. com/2019/03/14/nyregion/sandy-hook-supreme-court.html.

198  Sital Kalantry et al. General Electric (GE) is a notable example of a corporation that has recognized its obligations to ensure that business practices and unintentional misuse of products do not lead to international human rights abuses and mass harms. For instance, GE took a number of actions to ensure that ultrasound machines the company sold in India were not used to identify the sex of fetuses to perform illegal sex-selective abortions.131 Recognizing that medical professionals were using its ultrasound technology to enable illegal, sex-selective abortions in India, GE instituted a multi-pronged response beyond the actions called for in government legislation, which included: (1) implementing rigorous internal controls; (2) working with the national government and promoting industry best practices; and (3) raising public awareness of female feticide.132 Similar to the GE example, acid producers and sellers do not intend for their products to be used to perpetrate acid attacks. Despite acid violence being an unintentional misuse of their product, media attention and reporting on acid attacks133 put acid producers and sellers on notice that their products must be packaged and handled in a safer manner to avoid misuse. Moreover, even though it may be difficult in India to trace acid from the perpetrator of an acid attack to any particular company, India could demand that acid producers and sellers pay for costs of compliance with any new acid control regulations or for victim compensation based on the profits they make from the sale of acid. Indeed, companies selling acid and/or operating in India should examine their own roles and relationships in making acid easily accessible. For example, acid is produced and distributed by corporations in enormous quantities, with approximately 200 million tons of sulfuric acid, an acid commonly used in attacks, produced worldwide.134 Additionally, local and multinational corporations import acid into these countries. Acids used in attacks are the same used by businesses in manufacturing processes.135 In India, acid is commonly used in the informal sector to clean toilets, make jewelry, and fill car batteries.136 Evidence suggests a correlation between legitimate business uses of acid and the incidence of acid attacks. In Bangladesh, for example, the incidence of acid

131 Michael Cook, GE’s Ultrasound Machines and India’s Gendercide, BioEdge (May 2, 2007), www.bioedge.org/bioethics/ges_ultrasound_machines_and_indias_gendercide/6650. 132 Id. 133 See, e.g., Arafatul Islam, Why Acid Attacks are on the Rise in India, DW (Aug. 6, 2016), www.dw.com/en/why-acid-attacks-are-on-the-rise-in-india/a-19313750; Tanushree Ghosh, Acid Attack in India – Where Does the Nation Stand Today?, HuffPost (Mar. 29, 2017), www.huffpost.com/entry/acid-attack-in-india-wher_b_9559790; Kamal Kumar, Acid Attacks: A Scar on India, Aljazeera (Jan. 24, 2014), www.aljazeera.com/indepth/ features/2013/09/acid-attacks-a-scar-india-2013927165429393354.html. 134 The Essential Chemical Industry, Sulfuric Acid, www.essentialchemicalindustry.org/ chemicals/sulfuric-acid.html (last updated Dec. 20, 2013). 135 Law Commission of India Report, supra note 15, at 7. 136 Shree Venkatraman, India Needs to Seriously Address its Acid Attack Problem, The Wire (Aug. 6, 2016), http://thewire.in/56752/acid-attacks/.

Acid attacks in India 199 violence is highest in districts where the acid-using garment and jewelry industries are prevalent.137 Similarly, in Pakistan, acid attacks occur at high rates along the “Cotton Belt” of Pakistan, that is, in Southern Punjab and Upper Sindh (central area), where the cotton and garment industries are concentrated and acid is used in production.138 Indeed, acid attackers perpetrated 77% of all reported attacks in Pakistan’s “core” cotton zone areas of the Punjab region.139 Additionally, although acid burn incidents have been recorded in 21 different provinces in Cambodia, the largest number of reported incidents – 40.7% of the total – occurred in Kampong Cham, where most people work with acid on rubber plantations.140 Thus, acid is likely easier to access in places where acid-using industries are concentrated. Given that acid attacks occur at increased rates in areas where acid is widely used for industrial or other business purposes, corporations that produce, distribute, or otherwise use acid should ensure that their activities do not have negative human rights impacts even when governments fail to act. And shareholders, using shareholder proxies, can pressure board members to take action. Companies are in the best position to know their uses and handling of acid and should assess the ways they can reduce their activities’ negative human rights impacts. By adopting policies – such as safe handling and labeling of acid, or supply chain accountability – designed to deter intentional acts of violence, companies can also contribute to reducing the number of accidental burns, which is a significant problem in countries like Cambodia.141 Finally, all companies that produce, distribute, use, or otherwise handle acid should support industry and government efforts to regulate the safe handling, storage, labeling, transfer, and disposal of acid by manufacturers, distributors, other businesses, and individual users of acid in order to deter the unauthorized use of acid. With mandates to curb acid violence and to remedy victims’ harms, we next describe the emerging norms on business obligations to protect human rights.

137 See Md. Mahbubul Haque, Impunity and Acid Violence against Women in Bangladesh: Case Studies in Satkhira and Sirajgong Districts, 12 (2005) (unpublished M.A. thesis, Mahidol University), http://mulinet11.li.mahidol.ac.th/thesis/2548/cd383/4737344. pdf. 138 See Acid Survivors Foundation, Pakistan, Acid Violence in Pakistan: A Situational Analysis 13 (Sept. 2015), http://asfpakistan.org/wp-content/uploads/2017/02/SAAVreport-2015.pdf (charting the reported attacks by region and finding the highest prevalence in Multan, Muzaffaragarh, Rahim Yar Khan, Bahawalpur and Lahore); Imran Sharif Chaudhry et al., Economic Analysis of Competing Crops with Special Reference to Cotton Production in Pakistan: The Case of Multan and Bahawalpur Regions, 29 Pakistan Journal of Social Sciences 51, 52 tbl. 1 (2009) (stating that Bahawalpur, Multan, Muzzafargarh, Lodhran, and Rahimyar Khan regions belongs to the “core” cotton zone of Pakistan). 139 ASF Pakistan Report, supra note 138, at 13. 140 Breaking the Silence, supra note 26, at 45 (Phnom Penh, the capital of Cambodia, has recorded the second-highest incidence of acid burns, amounting to 16% of the total.). 141 Id.

200  Sital Kalantry et al.

Business and Human Rights Norms The business and human rights regime is nascent and relatively weak given its status as soft law, but the framework is emerging as a promising area for accountability for serious harms incident to business activities globally. When human rights law was first conceived and codified, the primary duty bearers were states parties. In addition, local laws guided corporate standards for respecting human rights.142 Today, however, companies measure their conduct against international law,143 and, in addition to states parties, the business sector plays a critical role in ensuring the respect for human rights and, specifically, can assist in combating acid violence and its negative consequences. In 2011, the international and business communities signaled a commitment to respecting and promoting human rights norms when the United Nations Human Rights Council unanimously passed the UN Guiding Principles on Business and Human Rights (“UN Guiding Principles,” or “UNGPs”).144 The UN Guiding Principles are grounded in international human rights law and state responsibility for respecting, protecting, and fulfilling human rights.145 The idea is for states to remain the primary duty bearers and to use their coercive powers as well as incentives to promote business respect for human rights within their borders or wherever their companies operate.146 In contrast to corporate social responsibility (CSR), a voluntary regime emphasizing responsible behavior, business and human rights (BHR) establishes a core obligation of states and companies to respect human rights, to do no harm, and to remedy any harm caused to victims of human rights abuses.147 The UNGPs provide the framework within which BHR operates. Its three pillars are: (1) the state duty to protect against third party human rights abuses; (2) the corporate responsibility to respect human rights; (3) the call on states and companies alike to provide victims of human rights violations with access to effective remedies.148 In discharging its BHR responsibilities, companies should adopt human rights policies, conduct human rights impact assessments, and evaluate performance on respecting human rights.149 With regard to remedies, states must and companies should provide access to judicial, non-judicial, and company grievance mechanisms for redress for human rights harms.150

142 UNGPs, supra note 8. 143 UN Global Compact, 2004 Ten Principles, www.unglobalcompact.org/AboutTheGC/ TheTenPrinciples/index.html. 144 UNGPs, supra note 8. 145 Id. 146 Id. 147 Anita Ramasastry, Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap between Responsibility and Accountability, 14 Journal of Human Rights 237, 238 (2015). 148 UNGPs, supra note 8. 149 Interim Rep. of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corps. and Other Business Enterprises, 60–64, U.N. Doc. E/ CN.4/2006/97 (Feb. 22, 2006). 150 Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business 106 (2012) (citing Interim Rep. of the Special Representative of the Secretary-General on the

Acid attacks in India 201 Often, in countries in which transnational corporations (TNCs) operate, regulations that would prevent violations of human rights and remedy harms attributable to business practices is lacking or inadequate.151 Additionally, governments are either unwilling or unable to remedy business-related human rights harms.152 Furthermore, TNCs less frequently directly perpetrate human rights abuses; rather, companies more likely may facilitate or act as accomplices to human rights violations and crimes perpetration.153 In many cases, however, corporations are complicit in human rights abuses, or their business activities, including supply chains, contribute to abuses.154 Thus, businesses must act to respect human rights and remedy human rights violations when attributable to their activities. Corporate human rights due diligence obligations respond to these government and business failures to respect and remedy human rights violations. The process assists both states and businesses to identify and prevent human rights abuses, and to provide remedies in the breach. Although admittedly weak in the face of serious corporate harms, corporate engagement to assess the human rights impact of its operations is a positive step forward and a baseline of common principles to follow for companies to adhere to human rights norms.155 Business and Human Rights guarantees focus on negative obligations (doing no harm) rather than on positive obligations (doing good and remedying harm) of companies.156 Still, implementation of the UNGPs have encouraged states to investigate human rights impact of businesses within their borders.157 As a consequence, states are passing laws requiring companies to exercise human rights due diligence and to disclose supply chains policies to prevent human rights violations.158 At the same time, the United Nations established a working group to draft a Business and Human Rights treaty toward binding corporate accountability obligations in international law.159 Under these norms and obligations, and given the cheap and easy availability of acid to unauthorized users in India, acid producers and suppliers that manufacture or sell acid to Indian markets must also act to ensure that perpetrators of acid attacks are punished and deterred from committing such gender-based crimes.

Issue of Human Rights and Transnational Corps. and Other Business Enterprises, supra note 149). 151 Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 The Yale Law Journal 443, 464 (2001). 152 Id. 153 Id. 154 Christie Merino, Why Food Companies Need to Step Up on Human Rights in Global Supply Chains, GreenBiz (Dec. 19, 2018), www.greenbiz.com/article/ why-food-companies-need-step-human-rights-global-supply-chains. 155 See Ramasastry, supra note 147, at 237, 247. 156 Id. 157 Id. 158 Id. 159 Human Rights Council Draft Res. A/HRC/26/L.22/Rev.1 (Jun. 25, 2014), https:// documents-dds-ny.un.org/doc/UNDOC/LTD/G14/064/48/PDF/G1406448. pdf?OpenElement.

202  Sital Kalantry et al. A positive move toward ensuring that approximately 6,000 companies engage in corporate social responsibility (CSR) measures was the enactment of the Companies Act, 2013.160 This Act makes India the first country to mandate CSR by law and adds to the regime of “do no harm” to enhance positive obligations – especially economic, social, and cultural rights obligations – of Indian companies, transnational companies, and states.161 Since 2014, Section 135 of the Companies Act has mandated that private or public companies with a net worth of more than 500 crore INR (~ $100 million USD), or a turnover of 1,000 crore INR (~ $200 million USD), or a net profit of more than 5 crore INR (~ $1 million USD) in the previous year establish a CSR board (Board) with at least three directors and at least one independent director.162 The Board must formulate a CSR Policy outlining the activities that the company will undertake as per Schedule VII and monitor such activities.163 The Board must ensure that the company spends in every financial year an average of 2% of its net profits made during the three preceding years on corporate social responsibility activities.164 If the company does not spend 2% of net profits, the Board must give reasons for not meeting its obligations.165 Moreover, the Board must preference implementing CSR activities in local communities in which the company operates.166 Under Schedule VII, the Act enumerates the CSR activities that fall under the mandate, including eradicating hunger, improving education, protecting the environment, preserving national heritage, and funding humanitarian relief.167 For companies that produce acid used in acid attacks in India, their obligations under the Companies Act could be used to, among other things: contribute to compensation funds; improve acid sales regulation schemes; and assist with equipment and trainings to ensure proper treatment, rehabilitation, and vocational training for victims-survivors. Three specific activities related to acid violence under Schedule VII to which corporations should contribute are: (1) promoting gender equality and empowering women; (2) employment enhancing vocational skills for acid attack victims-survivors; and (3) contributions to

160 Ashok Prasad, India’s New CSR Law Sparks Debate Among NGOs and Businesses, The Guardian (Aug. 11, 2014), www.theguardian.com/sustainable-business/india-csr-lawdebate-business-ngo (last visited May 16, 2019). 161 Prasad, supra note 160; PWC, Handbook on Corporate Social Responsibility in India (2013), www.pwc.in/assets/pdfs/publications/2013/handbook-on-corporate-socialresponsibility-in-india.pdf. 162 The Companies Act, No. 18 of 2013, § 135(1), India Code, www.mca.gov.in/Ministry/ pdf/CompaniesAct2013.pdf; but see The Companies Act, No. 1 of 2018, India Code, www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf. 163 Id. 164 Id. 165 Id. 166 Id. 167 Prasad, supra note 160.

Acid attacks in India 203 government funds, such as those established to assist acid attack victim-survivor medical care and rehabilitation.168 In addition, in order to reduce the intentional misuse of acid, businesses at different levels can take specific steps beyond those pursuant to the Companies Act. Companies that manufacture and sell acid to markets in India are also under an obligation to act with due diligence to address adverse human rights impacts of their business activities in their places of operation. Additional steps may include the following: • Companies that distribute acid to individual end-users should ensure that acid containers are labeled to notify users that they contain a dangerous substance and the legal consequences of its misuse. • Companies that import products manufactured using acid from India should verify that companies within their supply chains follow safe handling, storage, labeling, transfer, and disposal procedures and comply with all existing Indian laws regulating acid sales. • Companies that produce and distribute acid in India should ensure that their distributors are following safe handling, storage, labeling, transfer, and disposal procedures.

Conclusion India’s obligation under international law requires that the government exercise due diligence to prevent and adequately respond to acid attack violence as a form of gender-based violence prohibited under CEDAW. In particular, India must act with due diligence to enact and enforce laws combating acid violence; to investigate, prosecute, and punish perpetrators; and to redress victims of acid attacks. While India has adopted a statute that heightens criminal penalties on acid attack perpetrators and the Indian Supreme Court has stepped in to mandate the regulation of acid sales, implementation of the acid sale order is lackluster, leading to continued underenforcement of the law, a lack of access to justice for acid violence survivors, and impunity for perpetrators of acid attacks. In addition to India’s obligations, businesses must also take concrete measures to respect human rights and remedy harms, including for acid attacks. Corporations that benefit from the sale and use of acid have important due diligence obligations to do no harm and remedy any harm caused by their business activities. Businesses often produce and use acid in their supply chains and can be the key to regulating its misuse. In today’s world non-state actors are often as powerful and influential as state actors and, in some cases, the activities non-state actors directly cause or more likely is in the chain of activities that leads to human rights abuses.

168 Id.

204  Sital Kalantry et al. Typically, the business and human rights lens is used to address violence against human rights defenders or violations in large-scale development projects or extractive industries, but few have written about the connection between gender violence and business obligations. With the Companies Act, businesses that produce acid or use acid in a significant way in its operations have additional positive obligations to allocate resources to preventing and redressing human rights harms, including acid violence. Moreover, the Companies Act now gives human rights advocates more grounds to push companies to spend their resources on preventing acid attacks and helping survivors rebuild their lives.

Acknowledgements The authors would like to thank Sumridhi Kaur for her excellent research assistance for this chapter.

Part III

9 The right for rights The lawful and the lawless in India Raminder Kaur

We have been here [in Trichy’s Special Prison for Women] for over a month. We get charged with new cases every time we are taken to the Court. It is only after being part of the [anti-nuclear] struggle that we realized that trying to establish one’s right to live as one wishes, pursuing traditional livelihoods and also questioning activities that are being implemented without consulting the people is equivalent to crime and sedition. Sundari 20121

At the Press Club of India in New Delhi, Amnesty International launched its 2006 report among a room full of journalists, activists and scholars. It was concluded for the first time that India and China’s rapid development had become another progenitor of human rights abuses. As the report reads for the two countries: ‘Economic development did not prioritize realization of economic, social and cultural rights’.2 In comparison to China, India is renowned as the ‘world’s largest democracy’.3 However, the juggernaut of neoliberal policies from the 1990s, increased trade with multi/transnational companies and attendant large-scale industrial constructions came with the striking abrogation of citizens’ rights and consultancy on development projects.4 It heralded an era in which the government along with

1 ‘Koodankulam Women from Prison: Tell Everyone we are still here!’ October 16, 2012, Sundari, Xavieamma and Selvi in conversation with Anitha S. on 12.09.2012 at Trichy’s Special Prison for Women. http://www.dianuke.org/koodankulam-women-from-prison-tell-everyone-we-are-stillhere/. Accessed July 11, 2019. 2 Amnesty International Report 2006: The State of the World’s Human Rights, Oxford: Alden Press, p. 38. 3 Richard Wood (2017) ‘The World’s 7 Largest Democracies – Where Do America and India Fit in?’, HTC, www.hitc.com/en-gb/2017/10/20/the-worlds-7-largest-democracieswhere-do-america-and-india-fit/. Accessed January 10, 2019. 4 Both transnational and multinational companies operate in multiple countries but the latter has a centralised management system in one of these countries, and include domestic companies such as Tata, Reliance Infrastructure Limited and Larsen and Toubro who have since

208  Raminder Kaur the growing middle classes embraced a globalised consumer culture for which more and more electricity was the order of the day.5 As they consumed, they veered more towards a ‘pragmatic realism’ where Indian officials formed trade relationships between many countries including superpowers like the US, Russia and China out of neoliberal necessity. Nuclear power as an energy option was catalysed by the India-US civilian nuclear agreement (2005) and the subsequent waiver by the now 48 member countries of the Nuclear Suppliers Group in 2008. The waiver is despite the fact that India is not a signatory to the Nuclear non-Proliferation Treaty (1970), but with the condition that civilian nuclear reactors be open to inspection by the regulatory body, the International Atomic Energy Agency. More nuclear plants were planned for the subcontinent with ambitions to increase hundredfold their power contribution to the country’s electricity needs (Ramana 2013: 279–92). Simultaneously, as India sought to empower itself, insurgency rocketed. To add to the upheavals in Kashmir, Punjab and the north eastern states, Islamic militancy tore apart Indian cities. In the wake of the airborne attacks in US in September 2001, the Indian government declared its support to US-led forces against the Islamic militant ‘axis of evil’. This ‘War against Terror’ added another register to a strident securitised political culture in the subcontinent (see Masco 2014). Against this backdrop, any activist or environmentalist group denouncing state-backed industrial developments became tainted with the same brush as threatening national security (see Futrell and Brents 2003; Dunlap 2019). To intimidate individuals and quash environmentalist movements, there was a retrenchment of colonial legislation, where state authorities prohibited assembly as stipulated in Section 144 of the Code of Criminal Procedure (1973), and made allegations of ‘sedition’ and ‘waging, or attempting to wage war, or abetting waging of war against the government of India’ with recourse to clauses such as Sections 124A and 121 of the Indian Penal Code. Such legislative mechanisms that were used to give the upper hand to political, industrial and corporate elites came up against a rise of environmental awareness in league with a culture of entitlement for project-affected people that Sanjay Ruparelia has described as ‘the new rights agenda’ (2013: 569). A lack of public consultation, compensation and the prospect of displacement from home and habitat rang as loud as threats to their life and livelihoods were they to stay (see Flam 1994; Srikant 2009: 3). Mechanisms for public consultation and information in the public interest along with citizens’ rights framed by India’s democratic constitution were mobilised to these ends by campaigners. They included laws such as the Environment Impact Assessment (EIA) Notification in 1994 that is under the umbrella of the Environment (Protection) Act of 1986, and the Right to Information Act (2005) for vital information from public authorities. The constitution, often cited as ‘the

2016, ‘poached’ NPCIL employees for their companies. P. Sudhakar (2006) ‘Private Sector Giants ‘Poach’ NPCIL personnel’, The Hindu, November 20, p. 3. 5 On the Indian middle class, see Brosius (2010), Mazzarella (2005) and Varma (1998).

The right for rights 209 supreme law of India’, established the fundamental rights of the Indian citizen in 1950 including the right to peaceful dissent and to live in a healthy environment. Specifically, Article 19(1)a of the Constitution of India refers to ‘the right to freedom of speech and expression’ and 19(1)b to assemble peacefully and without arms. Article 21 decrees ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’ (Agarwal 2012: 205). This article in particular has been interpreted as part of essential human ‘rights to life’ including the right to water, health, education, a livelihood, and a speedy trial. With Article 32, individuals could seek remedy for any violations of these fundamental rights (Rakshit 1999). On numerous occasions, such rights enshrined in law turned out to be no more than a paper tiger to the mightier roar of the Indian nuclear tiger. The import and implementation of laws were disregarded or weakened by the greater force of the ‘nuclear state’ – a term that I use to refer to state-endorsed nuclear authorities such as the Department of Atomic Energy (DAE) and the Nuclear Power Corporation of India Limited (NPCIL) that are bulwarked by an increasingly intransigent and militarised police, surveillance and intelligence apparatus under the umbrella of national security.6 Recalling Carl Schmitt (1985 [1927]) and Robert Jungk (1979), juridical norms and procedures of decision-making are held to ransom when it comes to exercising a decision on nuclear technologies, whether they be for weapons or power plants. This state of affairs stretches from local authorities all the way to the highest representative of law in the country, the Supreme Court of India, who in its call for experts to furnish evidence in any appeal against the nuclear authorities, has to rely upon officials, themselves employed or sponsored by government-backed authorities. Effectively, the nuclear enclave becomes the exception to law in the interests of the nation and its security (Kaur 2013). A significant test case concerns the Kudankulam Nuclear Power Plant in the south Indian state of Tamil Nadu (Figure 9.1). An agreement for the plant was first made by the premiers Rajiv Gandhi and Mikhail Gorbachev in 1988 that was later shelved for a decade. It was revisited in the late 1990s by the then Indian Prime Minister, H. D. Deve Gowda, and the Russian President, Boris Yeltsin. Strapped by their own economic needs for nuclear trade, Russian industries entered into another agreement to supply two standard high pressure VVER 1,000 megawatt reactors with renewed arrangements that became connected to defence deals including the supply of T-90 tanks, SU-30 planes and an Admiral Gorshkov-class submarine (cited in Udayakumar 2004: 138).7 In the aftermath of India declaring itself a nuclear weapons state in 1998, a revised agreement was

6 The term state is shorthand for a complex of organisational structures, personnel, discourses and practices. In Michel Foucault’s words as an outcome of a quadrillage of performative processes, ‘The state is at once that which exists, but which does not yet exist enough’ (2010: 4). 7 VVER or WWER refers to pressurised water reactor designs and is from the Russian VodoVodyanoi Energetichesky Reaktor; translated as Water-Water Power Reactor.

210  Raminder Kaur

Figure 9.1 Coastal communities living near the Kudankulam Nuclear Power Plant, Tamil Nadu, 2012 Source: Photograph by Raminder Kaur.

made along with repayments in dollars and spent fuel to be kept in India (Ramana 2013: 86–88). Signed by the right-wing Bharatiya Janata Party (BJP) leader, Atal Bihari Vajpayee, and the Russian President, Vladimir Putin, the pact was bought to life in November 2001, and construction of the nuclear plant began shortly after (Figure 9.2). The Kudankulam case demonstrates the coordinated activities of campaigners who pursued processes of democracy that promise project-affected people a fair hearing, accountability and compensation. Their ‘people’s movement’ had national and even transnational repercussions (Kaur 2012, 2019). A few months after the Fukushima-Daiichi nuclear disaster in March 2011, a neighbouring village to the Kudankulam Nuclear Power Plant, Idinthakarai, became the ‘epicentre’ of an anti-nuclear movement as thousands gathered to support the People’s Movement Against Nuclear Energy (PMANE, Figure 9.3). Prominent here was the role and commitment of women, of which Sundari whose quote opens this chapter is one leading voice in a peaceful protest against a nuclear power plant.8

8 See Anitha Sharma (2012) ‘Call for A Women’s Support Group in Kerala for Koodankulam Struggle’, May 12, DiaNuke, www.dianuke.org/call-for-a-womens-support-group-in-keralafor-koodankulam-struggle/ Accessed January 10, 2019.

The right for rights 211

Figure 9.2  Kudankulam Nuclear Power Plant road sign, 2006 Source: Photograph by Raminder Kaur.

Figure 9.3  Grassroots resistance in the village of Idinthakarai, 2012 Source: Photograph by Raminder Kaur.

212  Raminder Kaur Peoples’ anxieties about land acquisition, displacement, mandatory procedures for the construction of a nuclear power plant, radioactivity and the prospect of their future health and livelihood fuelled an anti-nuclear rage. Making firm connections between the state, security and oppression in the name of India’s development, grassroots resistance swelled across the southern peninsula and beyond. Inspired by Mohandas Karamchand Gandhi’s ideas of village-based solidarity and non-violent civil disobedience for the people, they adapted the freedom fighter’s philosophical political legacy for the contemporary Tamil Nadu context (see Hardiman 2003). These phenomena permit a consideration of the politicised framing of ‘people’ as essentially a powerful collective voice against the state, and more specifically, against the nuclear authorities: people power against nuclear power (see Laclau 2005; Bidwai 2011; Kaur 2012). In the context of a fast developing neo-liberal India, it has become more and more evident that rights to life, public consultation and information in the public interest, along with the freedom of expression and to dissent are being suppressed and/or diverted in the interests of supposedly ‘higher goals’ to do with security and the modernist mantra of development. In this chapter, we consider how people’s rights have been shaved and shred with a focus on the south Indian nuclear plant. Despite the often capricious and varied interpretations and enactments of principles embodied in law and regulations by the nuclear state, communications and coordination continued among anti-nuclear campaigners in quite open ways, protagonists often arguing that there was no need to hide anything for what they were doing with their peaceful forms of civil disobedience was perfectly legal. As one person put it, ‘Why should we worry about the state when it is us who are lawful, and they are lawless?’ Activists set out to demonstrate how they, the people, were in fact lawful and therefore the authentic enforcers of justice, while the nuclear state was lawless for deploying established ‘law enforcement agencies’ to aggressively push through its agenda paying short shrift to constitutional, legal and mandatory protocol in the construction of a nuclear power plant. Based on ethnographic fieldwork in the region since 2006 and an analysis of material available online, we will begin with a brief account on the anti-nuclear struggle in south India followed by a focus on the workings of the inverted logics of the lawful and lawless with respect to three main areas: first, the twists and turns to people’s constitutional rights to life; second, the shunting of rights to information about mandatory procedures for the construction of a nuclear power plant, and to public consultations and hearings for project-affected people; and third, the undermining of people’s right to peacefully protest without the threat of punishment or detention. Unless they are a public spokesperson, the identities of my interlocutors have been anonymised accordingly.

Cross currents By the mid-2000s, two reactors at Kudankulam were under construction and scheduled to go critical in 2007, a date that was perpetually postponed until, as it transpired, the first reactor was commissioned much later in July 2013 to be

The right for rights 213 followed by the second reactor three years later. As with many other nuclear plant constructions, worries were expressed about radionuclide emissions released into the environment, and the rise of the sea water temperature due to the discharge of water coolant that would disturb sea life and, as a consequence, further jeopardise fishermen’s livelihoods. Exposure to the high background radiation along the south western Malabar coast in the neighbouring district to Tirunelveli where the nuclear plant is sited, is deemed to be ‘higher than the world average value reported by UNSCEAR [United Nations Scientific Committee on the Effect of Atomic Radiation] (2000)’ (Ajithra et al. 2017: 33). Along with sandmining among the monazite-rich coastal sands (an alpha radiation emitter) in the coastal districts, it has predisposed the population to a high rate of genetic mutation and related diseases. Having nuclear reactors in the region added to their radiation burdens (Kaur 2020). People in the region felt that they were hinterland underdogs for power interests emerging in large cities to the north hand-in-hand with trans/multinational companies. Some likened the phenomena to a form of neo-colonialism where people’s lives were oppressed and their rights abrogated as it was under the British colonial era. The scholar and peace activist, Dr S.P. Udayakumar, described the phenomena as ‘nucolonization (nuclear + colonization)’.9 At a meeting in 2006, he declared: Government is dictatorial. Our enemy is very powerful. The nuke industry is very powerful. It is the enemy of our people. Many people are afraid to do anything against this department [the Department of Atomic Energy]. A leaflet from the local non-governmental organization (NGO), Conservation of Nature Trust, in 2006 added: The Russians may be happy over the pact as it will boost its dollar hungry economy with an inflow 360 crore [3.6 billion] of US dollars (Rs 173,000 crores) work as this is entrusted to 300 industrial units in Russia which will manufacture parts for the VVER-1000 Reactors. It is like manufacture of cloth in Manchester, England for India in the Pre-independent India [sic].10 The inequities of colonial exploitation of India’s resources and populace were likened to the contemporary scenario where Russian technology was brought by India at exorbitant costs that were then borne financially and environmentally by the Indian government and by extension, Indian citizens. Indeed, it has been

 9 www.mail-archive.com/[email protected]/msg08208.html. Accessed October 8, 2009. See also Valerie L. Kuletz who refers to it as ‘nuclear colonialism’ (1998: xviii) and Joseph Masco on the ‘radioactive colonization’ (2006: 101) of the lands of indigenous Pueblo communities in New Mexico. 10 ‘Why the Kudankulam Nuclear Power Project near Kanyakumari – A few Objections’ leaflet (2002), Conservation of Nature Trust, Nagercoil.

214  Raminder Kaur revealed that equipment for the commissioned reactors had not been adequately maintained (Ramana 2013: 86–87; Bhawna 2016: 226–227). Nor, as it was learnt later, were they the ones that were originally planned. Rather, they were reputed to be substandard versions provided by Russian companies, Ziopodolk, Informtekh and Atommash, whose Chief Executive Officers have been jailed for corruption for the sale of aged and defective Soviet-era equipment (Padmanabhan et al. 2013). People in peninsular India felt that they were to become the ‘guinea pigs’ to this outdated and untested technology (Vaid 2016: 108–148). In a context where the Indian nation-state has prioritised economic and military growth, residents around the nuclear power plant have redressed the terms of development to make it more people-orientated and environment-friendly. Such perspectives provide a cutting critique of ‘nuclear nationalism’ (Mian 1999, Bidwai and Vanaik 2000) that is entrenched in mainstream Indian political culture where the nuclear is heralded as a pre-eminent path for the postcolonial nation’s sovereignty, defence and development (Abraham 1998). Activists tried to intercept this dominant discourse not by resisting it altogether but by delinking the nuclear from the national. With this orientation, they were able to revere the national as a discursive script that values the power of the demos, the rights of the citizen, and encapsulates love and respect for their historical, cultural and environmental heritage. By effective delinking, they were, to a greater or lesser extent, able to circumvent accusations of being ‘anti-national’, ‘antidevelopment’, and try to fend of accusations of foreign infiltration and espionage. Strategies to enable this reorientation included the revival of India’s nonviolent freedom struggle that valorised the struggle as one for the ‘people’. Other campaigns entailed the mobilising of striated conceptions of Indian and/ or Tamil cultures through a variety of practices and outlets to disseminate the dangers of the nuclear industries and the ills of high ionising radiation levels. A third approach included efforts to connect with wider everyday issues such as the universal life value of fresh water, and how tons of it would be siphoned for a large power plant, a concern that spread to inland farming as well as fishing communities in their eco-nationalist campaigns. Fourth were tactical use of survey, statistics and science that was mobilised in a bid to create a parallel and locally informed knowledge base of ‘citizen experts’ with which to inform critical action and creative resistance through a variety of outlets including social media. Fifth were legal challenges in a form of ‘judicial activism’ as goes Alf Gunvald Nilsen’s (2012) analysis of the Narmada Bachaho Andolan (NBA) campaign to ensure people displaced in the construction of the dam along the Narmada River in Gujarat and Maharashtra were properly rehabilitated and compensated. We will now consider some of the means by which critics tried to take the nuclear bull by the horns.

Sublime culs-de-sac Critique of the Kudankulam Nuclear Power Plant showed an increasing arraignment in judicial activism from the 2000s. Notably, in 2002, people in the southern

The right for rights 215 peninsular came together with the retired marine biologist Dr Samuel Lalmohan at the lead to start a court case under Article 32 of the Constitution of India for their fundamental rights for the essentials of life. It went to the Supreme Court but in a country where the average duration of a court case is five to ten years, the case was dismissed in a matter of weeks with the verdict: There is an inordinate delay in filing the writ petition. Secondly, the question of setting up the power station is a matter of policy. There is no reason as to why this court should sit in appeal over the Governmental decision relating to a policy matter more so, when crores of rupees having been invested. This petition is dismissed with costs of Rs 1000 which shall be paid to the Supreme Court Legal Services Committee [sic].11 Pointing out the delay of the petition and reminding them of the costly implementation of government policy made the appeal redundant. All in all, the case cost the complainants much more than Rs 1,000, totalling about Rs 40,000 plus flights to and fro Delhi – by train, the journey would take three days, a time that many of those who worked could little afford.12 Subsequently, in a coordinated effort led by Udayakumar, a letter was sent to the Executive Director of the United Nations Environment Programme (UNEP) on 23 October 2002. It declared: The Indian Central Government is proceeding with the construction of the Kudankulam Nuclear power plant in spite of all the protests that has been made by numerous bodies and organisations. We have now decided to make a plea to your good self, having no other recourse [sic]. After a list of the main problems associated with the Kudankulam Nuclear Power Plant, the letter ends: The Central Indian Government has arbitrarily carried out this project, without resorting to norms of Environmental Impact assessments, public hearings and against the public opinion. As political corruption is rampant in these regions they callously disregard adverse impact that will transpire as a result of carrying out this project. Finally, we believe, that with your good office having responsibility for the environment of the whole world, that you will be able to intervene on this monstrous project and make our area a safe haven to live in nuclear pollution free environment [sic]. A month later, a response arrived. The Regional Director and Representative for Asia and the Pacific remarked ‘that this matter goes beyond the mandate of

11 S.L. Goyal (2002) Court master c/o The Chief Justice, Mr Justice R.P. Sethi and Mr Justice Arijit Pasayat, writ petition (civil) no 286/2002. 12 The equivalent exchange rate for US dollars at the time would be about 30 rupees per dollar.

216  Raminder Kaur UNEP’s activities in the region, and perhaps, it would be best if you were to consult the International Atomic Energy Agency (IAEA)’. Knowing full well the futility of an approach to the IAEA that prioritises nuclear power, an appeal was instead written to the Delhi-based National Human Rights Commission for the urgency of a public hearing, and the need to issue a transparent Environmental Impact Assessment report for the initial proposal of two reactors as per India’s 1994 EIA Act. This petition was accompanied by a summary of the hazards to people’s health and the environment by a nuclear power plant. The response received on 14 November 2005 was a point-by-point rebuttal. It declared that the project was first cleared in 1989 and therefore lies out of the EIA Act’s purview. It furnished select evidence from the NPCIL who are the public-private authority responsible for the Kudankulam construction and the Atomic Energy Regulatory Board (AERB), a regulatory body itself populated by people who serve the DAE. It concluded that ‘the plants under construction will not pose any unacceptable risk to the plant personnel, public and the environment’, emphasising that: in an energy deficient country like India there is a need to produce electrical power by all available generation technologies, that is, hydel [hydro], thermal, nuclear or renewable energy sources. Nuclear power plants are environmentally benign with respect to carbon dioxide emission and therefore cause no global warming. . . . It has been detailed that France has adopted nuclear power as their main source of energy supply and as of today more than 75% of the total power requirements of France are met by nuclear power. Likewise Japan, Korea, China, America, Russia and many other countries have adopted nuclear power as one of the significant energy sources for meeting their requirements. In its reliance on somewhat questionable evidence as to the ‘environmentally benign’ nature of nuclear reactors, the letter asserted that the: Cancer Research Institute, Thiruvananthapuram [Trivandrum] has undertaken in-depth study of effect of low level radiation on the population on the population in high natural background area of Kerala. The study revealed that the prevalent high natural radiation background does not contribute to any abnormal increase in cancer/early abortions and mental retardation. . . . The Nuclear Power Plant like Tarapur Atomic Power Station, Madras Atomic Power Station have been operating in coastal areas for about thirty and twenty years respectively and fishermen have not observed any adverse effect on their catch. In view of the factual position detailed above, it has been concluded that the complaint does not warrant any consideration, being devoid of merits [sic].13

13 Other perspectives on the nuclear power plants including a series of accidents and oversights are provided in Udayakumar (2004).

The right for rights 217 The response concluded: ‘In view of the facts and circumstances detailed above, report of Undersecretary, Department of Atomic Energy, Govt of India, is taken over the record and matter is closed’ [sic]. One swing door after another had been shut upon the petitioners by custodians of ‘facts and circumstances’ treated as if indisputable. The word of the highest court in the land carried authority and nothing else could be done about it. It was an indication of a judicial catch-22: that Supreme Court judges do not have the scientific expertise to judge the matter at hand and therefore need to call upon nuclear experts, all of whom are directly or indirectly employed or sponsored by the Indian government. This verdict is then upheld by others. Even the National Human Rights Commission conferred more rights to ‘electrical power’ citing reports and studies that themselves had been conducted by state-supported organisations. One local resident declared that: ‘The DAE is misleading people with halftruths and non-truths’. He concurred that it is matters like this that underline the Indian government’s reluctance to have international oversight on human rights in the subcontinent: The government claims that it is acting in the national interest, that people from other countries could not possibly understand the Indian situation, and that the nation does not need international human rights agencies. He elaborated that this situation permits the government to act like ‘a democratic dictatorship’ against the will of its own people. In other words, it utilises the velvet language of democracy, development and sovereignty while exercising the iron fist of a dictatorship (Kaur 2020). While recognising that the turn to nuclear power was partly due to the international consensus for nuclear power with George Bush Junior at the helm, people made comparisons with petitions against trans/multinational and state decisions for nuclear power stations in the US. Here, the supreme weight of the US constitution, which also grants similar privileges to the one in India, held out against the interests of adverse corporate and state-backed decisions for more nuclear plants. Indeed, it was partly due to relatively lax regulations that US nuclear companies were attracted to doing trade in India. The sobering realisation was that Indian lives were not considered worthy even by their country’s own government. US citizens’ rights record seemed enviable next to those of Indians even in these post-9/11 years of intensive surveillance and control (see Masco 2014).

The right to know and be heard In an unprecedented move in 2012, the Right to Information (RTI) Act (2005) was successfully used as part of a second appeal by south Indian campaigners led by Udayakumar to obtain information in the public interest from nuclear authorities. With a litany of acts such as the Atomic Energy Act (1962 with later amendments) and, with their imbrication in national security, the Official Secrets

218  Raminder Kaur Act (1923), the National Security Act (1980), along with other exemptions, the nuclear authorities had previously held themselves strictly off-limits to the public. The eventual release of some information was in direct response to the Central Information Commission’s order in April 2012 to provide documents that are relevant to public safety concerns regarding the two reactors at the Kudankulam Nuclear Power Plant. This is despite the fact that Section 8(1)(a) and (d) of the RTI Act exempt any information that might compromise the ‘security, strategic scientific or economic interests of the State’ or ‘commercial confidence, trade secrets or intellectual property’ of the parties involved.14 However, as the appellant, Udayakumar pointed out, ‘reports of the same nature were classified as public documents in countries such as USA, UK and Canada in order to ensure public debate’.15 The Commission permitted the second appeal concluding that: Where world wide, site evaluation and safety analysis reports of nuclear power plants and installations are being put in public domain to elicit public views, India can have no reason to treat its Citizens differently [sic].16 Subsequently, the NPCIL released one of the two requested reports, the Site Evaluation Report (SER), on 18 May 2012. The NPCIL denied the public release of the Safety Analysis Report stating that ‘is a ‘third party document’ and therefore, without the prior consent of the third party, the same cannot be shared with anyone’ [sic].17 The third party is Atomstroyexport and Atomenergoproekt (AEP), under the state corporation, Rosatom, in Russia. Even while the undated and barely legible twelve-page SER obscures much, it contains some startling information.18 The document reveals a contradictory view to official NPCIL declarations that water from the Pechiparai Dam would not be redirected to the Kudankulam Nuclear Power Plant.19 The report states: In order to enhance additional reliability for water supply, which is essential for functioning of various safety systems of the reactor, intake well at Pechiparai Dam should be provided at lower elevation than the minimum draw-down level of the reservoir. However, it should be ensured by proper

14 https://rti.gov.in/rti-act.pdf. Central Information Commission Decision No. CIC/ SG/A/2012/000544/18674 Appeal No. CIC/SG/A/2012/000544 http://humanrightsinitiative.org/programs/ai/rti/india/national/2012/email_alearts/May/02/CICKKNP-Site&SafetyReportscase-order-Apr12.pdf. Accessed January 13, 2019. 15 Ibid. 16 Ibid. 17 www.dianuke.org/koodankulam-site-evaluation-report-an-analysis-by-pmane/. Accessed November 10, 2018. 18 Ibid. 19 P. Sudhakar (2012) ‘Kudankulam Plant not to Draw Water from Pechipaarai Dam, Tamirabharani’, The Hindu, May 22, https://www.thehindu.com/news/national/tamilnadu/kudankulam-plant-not-to-draw-water-from-pechipaarai-dam-tamirabharani/ article3443184.ece. Accessed July 11, 2019.

The right for rights 219 management of water distribution that the water level is maintained above this minimum level.20 Two pipelines had already been laid from the tail end of the Kuzhithurai Tamirabharani River along the Kanyakumari district coast and from a location about 5 kilometres away from the Pechiparai Dam through Nagercoil town. The Tamil Nadu state government had also recently allotted nearly Rs. 5 crore (50,000,000) to desilt and maintain the dam. Regional inhabitants were naturally worried about what this might mean to their own supplies of water. However, for fear of aggravating local concerns, the necessary water for the plant has, to date, not been drawn from the Pechiparai dam for the plant. The Kudankulam nuclear project instead relies upon costly desalination units on the site that are nowhere mentioned in the released report. Elsewhere, information on hydrology, geology, oceanography and seismology is reported in a table without in-depth analysis or explanation. Issues such as the tsunami in an area that was ravaged by the 2004 disaster are dismissed as ‘not significant.’21 As far as the seismo-tectonic environment is concerned, the report asserts: ‘No active fault within 5 km. Site is seismic zone II as per IS-1893; 1984.’ Other issues such as karst in the area, the slumps in the sea along with periodic earthquakes in the Indian Ocean as raised by independent experts such as V.T. Padmanabhan, Dr Ramesh and Dr Pugazhendi, are not raised at all.22 The report also reveals that the liquid waste from the Kudankulam Nuclear Power Plant will ‘be diluted’ and ‘discharged into the sea’ which added to the consternation of nearby fishing communities. On evacuation routes in case of a nuclear emergency, the report merely states: 3 routes exist for possible evacuation. Schools and other public buildings exist for adequate temporary shelter, Nagercoil (30km), Tirunelveli (100km), and Tuticorin (100km) can provide communication, medical facilities and administrative support [sic].23 There are no further details about the routes, the condition of roads or the preparedness of relief centres. Most astounding is the use of the name, ‘Soviet Union’, instead of Russia at several points throughout the safety evaluation. The report was most probably compiled before the dissolution of the former USSR in 1991 when plans for the

20 www.dianuke.org/koodankulam-site-evaluation-report-an-analysis-by-pmane/. Accessed November 10, 2018. 21 Ibid. 22 Dr R. Ramesh, Dr V. Pugazhendi and V.T. Padmanabhan, ‘Safety Issues of Koodankulam Nuclear Power Plant’, March 25, 2012, Countercurrents www.countercurrents.org/pad manabhan250312.htm. Accessed November 10, 2018. 23 www.dianuke.org/koodankulam-site-evaluation-report-an-analysis-by-pmane/. Accessed November 10, 2018.

220  Raminder Kaur Kudankulam Nuclear Power Plant were first developed to be put on hold until 2002 when construction began. In a response to the release of the report, Udayakumar concluded that the report was outdated and could not be taken seriously: There is hardly any mention of desalinations plants, the transportation of the nuclear waste and other crucial issues. To sum up, this SER reads like a practical joke being played upon the innocent people of southern Tamil Nadu and southern Kerala. The PMANE rejects this so called SER and demands the NPCIL to share the real, complete and updated Site Evaluation Report with the people of India along with the Safety Analysis Report as per the orders of the Central Information Commission.24 Despite increasing pressure to reveal accurate and up-to-date safety reports, the NPCIL ignored any further requests. Public hearings along with the public circulation of an Environmental Impact Assessment (EIA) report had been made mandatory for large-scale development projects by the EIA Notification in 1994. However, when the NPCIL held public hearings for reactors in addition to the two decreed as legitimate at the Kudankulam site, they were done in a rash and ‘secretive’ manner so as not all members of the public could attend, and any appeals at the hearing were not fully acknowledged in their reports (Ramana and Rao 2008; Kaur 2013).25 The nuclear authorities had proceeded without proper consultation with the public who would be affected by the plant. With the backing of the legislature, surveillance and recourse to sanctioned violence (Weber 2015), the Indian nuclear state with its especial mooring in central government has conducted environmental enquiries for the construction of further reactors primarily for itself, and this so in only a summary fashion. Legislative routes against the Kudankulam Nuclear Power Plant were proving to be intransigent and the NPCIL’s public engagements appeared almost farcical were it not for their ability to push their agenda through with the help of intelligence bureaus, the police and paramilitary units.

The right to peaceful protest Gathering people to rally to the cause was an important part in the effort to assert people power against nuclear power. As in the struggle against the colonial machinery of yore, recourse was made to acts of civil disobedience against an obdurate state. But even with respect to peaceful dissent, authorities reacted by trying to shunt, curtail, ban and enact violence against those that defied and mobilised against the nuclear power plant.

24 Ibid. 25 On the interpretation of environmental laws in USA, see Masco (2006: 114–115) and Gusterson (2004: 206–220).

The right for rights 221 PMANE acts of civil disobedience included a ‘fast until death’ in August 2011 that led to the stalling of the construction of the nuclear plant for about half a year with the backing of the Tamil Nadu Chief Minister, Selvi J. Jayalalithaa, as she herself played the hand of Prime Minister Manmohan Singh’s central government. But this tenuous support from the Tamil Nadu government was short-lived. In March 2012, PMANE had organised a two-day national cultural programme. It involved many presenters and supporters travelling to Idinthakarai to come together in solidarity including other coastal, agricultural and tribal communities that were struggling against large-scale developments near their homes. When the crowds had dissipated after the programme, the police racked up their surveillance of the village. On the evening after the national event, a police car drove into the village to check at the parish whether there were any ‘outsiders’ in the village. Some had overstayed after the cultural programme but, on learning about the visit of the police, they decided to leave that night. Earlier in the day, the personal assistant to the Tirunelveli’s District Collector requested that PMANE convener, Udayakumar and the parish priest, Father Jayakumar, meet him in his office the next morning. This was followed up by two calls from the Collector himself, Dr R. Selvaraj. Something seemed to be brewing. People in Idinthakarai were troubled, thinking perhaps there would be a restart of reactor construction. But how events transpired still caught them by a combination of surprise and shock. The following day, roughly 6,000 armed police and paramilitary units were swiftly relocated to Kudankulam shortly after a local by-election.26 They blocked off the main road into Idinthakarai with barriers and armoured vehicles. In the process, they stopped all bus services and supplies of water, food, milk and fuel that coastal residents relied upon for their daily needs. The state government imposed Section 144 that prohibited any kind of large meeting and entry or exit out of the village. They also arrested about a thousand people across the state, some of whom were charged for sedition and inciting communal violence, and later released.27 Residents complained. But the police stated that if the blockade was to be lifted, PMANE convenors, Udayakumar and former priest and environmentalist, M. Pushparayan, had to be first handed over. People in Idinthakarai responded with a chorus of rebuttals, saying that they should arrest each and every one of them, if sedition is to be the charge. Udayakumar recalled this series of events after the phone calls in an open letter: A warning bell rang in my mind and I told my friends that we were all going to be arrested. My intuition proved to be right; some 200 of our friends from

26 Ponni (2012) ‘Kudankulam: A Brief History and a Recent Update’, March 21, Kafila, https://kafila.org/2012/03/21/kudankulam-a-brief-history-and-a-recent-update/ Accessed November 10, 2018. 27 Ibid.

222  Raminder Kaur Koodankulam, Koottapuli, Chettikulam and Erode were arrested. Rayan [Pushparayan] and I and 13 others embarked on an indefinite hunger strike demanding our friends’ immediate and unconditional release. The Superintendent of Police, Mr. Vijayendra Bidari, called me on my mobile on March 19th evening and asked me to surrender. With him still on the phone, I asked the thousands of people who had gathered there for their permission to surrender and they all shouted down the idea. I asked the SP [Superintendent of Police] to send enough vehicles and two officers with the arrest warrants so that we all would get arrested en masse. He did not like that idea and hung up by saying, “This is the last time I speak to you.” We used to speak to each other quite often as I got his oral permission for all our rallies, campaigns and public meetings.28 Udayakumar’s appeal to the people that he should go outside was met with emotional scenes of hugs and tears, as people held tightly on to him, not wishing to let him go. A female resident, Tamilarasi, reflected on her lament: His words seemed to me like a farewell. I just could not take it. I felt that someone has departed forever. I cried like I have not in years. And without me knowing I ran up the steps to the stage and embraced him, my dear brother.29 A solidarity visit by Arvind Kejriwal, the leader of the Aam Aadmi Party whose popularity stems from its anti-corruption stance, sealed the collective mood, and Udayakumar and Pushparayan decided to not surrender to the police.30 Instead, with renewed vigour, they intensified their agitation. As protests grew in and outside the village from 2012, so did criminal charges against PMANE. Acts of civil disobedience were read as acts of legal disobedience. Allegations in First Information Reports (FIR) piled up on top of named individuals – invariably including Udayakumar and Pushparayan – along with a couple of thousand or more unspecified others. Reportedly, nearly 9,000 had been accused of ‘sedition’ and ‘waging war against the state’, allegations that carry with it the prospect of a life sentence or a death penalty.31 Typically, a few

28 S.P. Udayakumar (2012) ‘Koodankulam: The Silent and Telling Emergency in India’, June 27, www.countercurrents.org/udayakumar270612.htm. Accessed November 10, 2018. 29 ‘After the Mayhem’, September 11, 2012, compiled by Anitha S., Countercurrents, www. countercurrents.org/kebinston120912.htm Accessed November 10, 2018. 30 ‘Kejriwal Joins Koodankulam Anti-nuke Stir, High Drama on Site’, India Today, September 12, 2012 www.indiatoday.in/india/story/kejriwal-joins-koodankulam-anti-nuke-stirhigh-drama-on-site-115899-2012-09-12. Accessed January 10, 2019. 31 Arun Janardhanan (2012) ‘8,856 “Enemies of State”: An Entire Village in Tamil Nadu lives under Shadow’, September 12, http://indianexpress.com/article/india/indianews-india/kudankulam-nuclear-plant-protest-sedition-supreme-court-of-india-section124a-3024655/ Accessed January 10, 2017.

The right for rights 223 names would be mentioned in any charge with the added number of 2–4,000 to add to the list of named individuals as part of strategies to create a fear psychosis among the populace.32 The exact figures have vacillated along with the prevarications of officials and some were subsequently dropped after campaigners appealed to the Supreme Court.33 In a desperate attempt to contain the protests, the charges constitute the most ever criminal allegations from one station in the history of modern India. Even though their rate of proliferation made the allegations seem almost preposterous, they were not to be taken lightly. Along with ‘sedition’ and ‘waging war against the state’, there was also recourse to related laws such as Section 147 of the Indian Penal Code with respect to rioting, Section 148 in relation to rioting with deadly weapon, 353 implying ‘assault or criminal force to deter public servant from discharge of his duty’, 121(A) referring to ‘a conspiracy to overawe, by means of criminal force or the show of criminal force, the central government or any state government’, 395 with respect to dacoity, and 307 in relation to the attempt to murder. Children were not left without charges: they were registered under Sections 147, 148, 353, 121, 124, 129(b) with respect to ‘sings, recites or utters any obscene song, ballad or words, in or near any public place’, and curiously, ‘307 IPC r/w 149 IOC and Section 4 of Endangered Species Act and Section 3 of TNPPDL [Tamil Nadu Public Property Damage] Act’ (sic, cited in Senthalir 2012: 14). The reports were either fabricated or exaggerated, and in their repeated iterations, created a political theatre of the absurd.34 Udayakumar called the state’s official bluff. He responded by saying that if sedition was the issue, then they had been in meetings with the ‘Prime Minister of India, the Chief Minister of Tamil Nadu, the Tirunelveli District Collector, the Tirunelveli Superintendent of Police (SP) and many other officials’ who too should also be considered under these charges.35 Udayakumar made parallels with their oppression and the Emergency, a twoyear period of systematic rights violations from 1975 under Indira Gandhi’s

32 http://indiaenvironmentportal.org.in/reports-documents/report-jury-public-hearingkudankalum-and-state-suppression-democratic-rights Accessed January 10, 2013. 33 Ibid. 34 Such capricious measures bring to mind the controversial case of Iftikhar Gilani, a Jammubased journalist who was imprisoned without bail under the Official Secrets Act in 2002. As Siddharth Varadarajan asserts: ‘His crime – possessing out-of-date information on Indian troop deployments in “Indian-held Kashmir” culled from a widely-circulated monograph published by a Pakistani research institute’. The case fell apart due to the inconsistencies of fabricated reports by the Union Ministry of Home Affairs, Delhi Police and Intelligence Bureau. Siddharth Varadarajan (2005) ‘My Foreword to Iftikhar Gilani’s My Days in Prison’, February 1, http://svaradarajan.blogspot.com/2005/02/my-foreword-to-iftikhar-gilanismy.html Accessed January 12, 2019. 35 S.P. Udayakumar (2012) ‘Kudankalum: The Silent and Telling Emergency in India’, Countercurrents, June 27, www.countercurrents.org/udayakumar270612.htm. Accessed November 10, 2018.

224  Raminder Kaur Congress government. Along with others, he overturned state accusations of them as ‘seditious’ and turned the accusatory finger to those officials in state power: remember the ‘Emergency’ and MISA (Maintenance of Internal Security Act) days. Yes, there is a silent emergency prevailing in India today. The State that accuses us of waging war against it is indeed waging a war against its own people. Also we have to ask what is seditious today in India. The Manmohan Singh government has scores of ministers who are accused of serious corruption and fraudulence charges but it is the common people like us who struggle for the safety and betterment of our people stand accused of sedition.36 In this ‘silent emergency’ from March 2012, more than 300 people, mainly women, embarked upon another indefinite hunger strike demanding the release of protestors that had been imprisoned across Tamil Nadu. They also reiterated their demands for an independent environmental study around the Kudankulam Nuclear Power Plant, the public release of an Inter-Governmental Agreement signed by the Indian and Russian governments on liability in February 2008, and the need to conduct mandatory safety and evacuation drills in a 30 kilometre radius of the plant.37 All hunger strikes from August 2011 were called off with meetings with officials that, as with most other promises, proved to be inconsequential in the long run. This last hunger strike was simply ignored by officials. One of Mohandas Karamchand Gandhi’s greatest weapon of sacrificing the body in view of the welfare of the community and nation was thrown on the pyre of peaceful politics. While this effective siege and stand-off was ongoing in and around Idinthakarai, violence was also enacted upon anything or anyone associated with PMANE. Henchmen believed to be connected to the local right-wing group, Hindu Munnani and Congress, took to damaging the properties of the lead spokesperson with two attacks on the SACCER Matriculation School that Udayakumar’s wife, Meera headed on the outskirts of Nagercoil. This attack came with systematic attempts to intimidate the family through threats, rumours and other measures to undermine their school as a ‘den for terrorism’ in order to put parents off from sending their children there. Despite formal complaints to the local Rajakkamangalam Police Station officers, the Deputy Superintendent of Police in the nearby Kanyakumari town and to the Superintendent of Police in Kanyakumari District including also a letter to the Chief Minister, no one was taken to task.38 The

36 Ibid. 37 ‘Kudankalum Update: Arrests of Peaceful Protesters Under the Sedition Law in Tamil Nadu, India’, March 20, 2012, https://indian2006.wordpress.com/2012/03/20/ kudankalum-update-arrests-of-peaceful-protesters-under-the-sedition-law-in-tamil-naduindia/ Accessed November 10, 2018. 38 ‘Kudankalum: Letter to CM about Attack on School’, Dianuke, April 30, 2012, www. dianuke.org/kudankalum-letter-to-cm-about-attack-on-school/ Accessed November 10, 2018.

The right for rights 225 silence and inaction pointed to a state-wide complicity that stretched between official and not-so-official elements (Kaur 2020).

The lawless state vs lawful nation Despite stipulations that frame citizen’s rights to a healthy environment, information in the public interest, consultation and peaceful dissent, various ruses are enacted by state-backed authorities to ensure that such legitimate avenues are curtailed. People’s rights to life are simply ignored as we saw with the first series of appeals above. Their rights to information about nuclear developments are denied or short-changed as we saw with the outdated and cursory Site Evaluation Report that was eventually released in 2012. With regard to the mandatory EIA report and public hearing, consultations are only planned with a preordained, circumscribed and docile public known to support the nuclear plans in mind. Any other petitions are suppressed or ignored. People’s rights to peaceful dissent are forcefully and occasionally violently trampled upon as we saw with the nuclear state’s response to peaceful acts of civil disobedience, a situation that was not unlike the colonial era or earlier periods of oppression under Indira Gandhi’s Emergency rule.39 A democracy descended quite rapidly into a demockery. The Kudankulam struggle vividly illustrates how the nuclear state indicates a propensity for violence while deploying a selective and cursory rational-legal proceduralism that effectively make a mockery of the democratic constitution. In the process, the state is (re)produced as distant, hierarchical, capricious and unaccountable to the public. While the Indian judiciary aspires to do a stellar job, the lower courts are compromised by corruption and painfully slow processes. In the meantime, claimants who are detained suffer and fester in jail for months if not years. On the nuclear issue, the judiciary as a whole is in a circuitous stranglehold. All of them, including the Supreme Court, are hampered by the fact that they rely upon experts to furnish evidence where needed on a nuclear matter, who themselves are employed or sponsored by the nuclear state. With the election of the Hindu nationalist BJP in central government in 2014, measures against environmental and human rights organisations have seen a stepchange with rising allegations of sedition and anti-nationalism.40 In 2017 alone, up to 20,000 NGOs have been threatened for their ‘anti-national’ work in a crackdown on bank accounts under the Foreign Contribution (Regulation) Act (2010, FCRA).41 This compared with around 4,000 cancellations of FCRA status

39 See also a report of later state-backed violence: ‘Report of the Fact-Finding Team’s visit to Idinthakarai and Other Villages on September 20–21, 2012’, https://www.countercur rents.org/koodankulam260912.pdf. Accessed July 7, 2019. 40 ‘Kudankulam Protests, Church and Western NGOs – A Citizen’s Probe’ (2012) http://ari seasia.blogspot.co.uk/2012/02/Kudankulam-protests-church-and-western.html. Accessed November 10, 2016. 41 ‘FCRA Licenses of 20,000 NGOs Cancelled’, The Times of India, December 27, 2016, http://timesofindia.indiatimes.com/india/fcra-licences-of-20000-ngos-cancelled/article show/56203438.cms. Accessed October 12, 2017.

226  Raminder Kaur after the revised FCRA was first implemented under the previous United Progressive Alliance government in 2011 for the stated reason of non-submission of annual returns within nine months of the end of the financial year.42 Even wellestablished organisations such as Greenpeace India have had their funding status revoked for about a year before court proceedings reversed the decision. This is one organisation that had raised awareness about environmental violations with the Kudankulam Nuclear Power Plant and, among their other work on health and environmental justice, they have been pulled up for ‘prejudicially affecting public interest and economic interest’.43 Other NGOs have been put on a security watch for engaging in activities seen as inimical to the BJP agenda.44 Critics recognise that the crackdown is to expunge any movement that they do not approve of, and to shackle dissent and criticism in the country where the FCRA is being used as a ‘tool of repression’.45 Others bring to attention the communalisation of allegations in what might be called ‘Hindia’. It is true that the BJP government has not reproached Hindutva organisations such as the Rashtriya Sevak Sangh who are held to be ‘getting crores from Indians living in other countries’.46 Nevertheless, with widespread support for PMANE, the Kudankulam case remains a striking thorn in the Indian nuclear state. It is a memorable example of a multi-pronged movement that brought people from diverse backgrounds together on grounds of environment, health, livelihood, transparency, accountability, public consultation, peaceful dissent and ‘deep democracy’ (Appadurai 2001, Kaur 2020) where expressed efforts were made to connect with other marginalised and large-scale development project-affected people across the country. While campaigners nurtured visions about societies run on alternative forms of renewable energies, they did not seek to usurp extant structures of law and politics. Rather they sought to almost ‘cleanse’ the extant state, to pull it to task, so to

42 Rakesh Dubbudu (2012) ‘Massive FCRA Cancellation is not a new thing. 4138 NGOs lost their FCRA licenses in 2012’, Factly, April 29, https://factly.in/massive-fcra-cancella tion-is-not-a-new-thing-4138-ngos-lost-their-fcra-licenses-in-2012/ Accessed January 12, 2019. 43 Bharti Jain (2016) ‘MHA Goofs up, Renews Greenpeace’s FCRA License’, The Times of India, December 14, http://timesofindia.indiatimes.com/india/MHA-goofs-up-renewsGreenpeaces-FCRA-licence/articleshow/55970187.cms. Accessed October 12, 2017. 44 ‘India Cracks down on Greenpeace and Foreign NGOs’, Aljazeera, May 27, 2015, www. aljazeera.com/news/2015/05/india-cracks-greenpeace-foreign-ngo-150526102622208. html. Accessed October 12, 2017. 45 ‘FCRA as a Tool of Repression: Greenpeace India Signs Civil Society Statement in Solidarity with those Denied Registration’, Greenpeace India, December 14, 2016, www.greenpeace. org/india/en/news/Feature-Stories/FCRA-as-a-tool-of-repression-Greenpeace-Indiasigns-civil-society-statement-in-solidarity-with-those-denied-registration/ Accessed October 12, 2017. 46 ‘Republic Channel Exposed ‘Activism for a Price’ in Anti-nuclear Protests, Funded by the Church. S.P. Udayakumar was in the Sting. What is your Take?’ Quora, www.quora. com/Republic-Channel-exposed-Activism-for-a-price-in-anti-nuclear-protests-funded-bythe-church-S-P-Udayakumar-was-in-the-sting-What-is-your-take. Accessed November 10, 2018.

The right for rights 227 speak, so that it did not prevaricate from values enshrined in the sublime umbrella of the Indian Constitution (see Hansen 2001) and related legislature, and mandatory procedures for the construction of a nuclear power plant. Activists rallied, campaigned, negotiated, renegotiated and, ironically, made demands on the state to itself keep to the law and due process. They aspired to work through the state rather than against it, knowing full well that any suggestion of anti-state violence as was associated with the Naxalite or Maoist groups in the ‘Red Corridor of’ India, was to invite the postcolonial state’s wrath which could end in the death of people, if not the movement itself. Even though the people’s movement against the nuclear power plant has now subsided, not least due to the draconian measures adopted by the nuclear state, we can ensure that the tracts of history do not lose sight of their remarkable tenacity, courage and feats to ensure India remains true to its claim as the world’s largest democracy.

Acknowledgements My sincere gratitude to all my interlocutors in India during the time of my yearlong fieldwork in the region in 2006 and periodic visits up until 2018. The early part of the research was funded by the Economic and Social Research Council (2006–2008) and initiated by a British Academy Small Grant (2002).

References Abraham, Itty (1998) The Making of the Indian Atomic Bomb, London: Zed Books. Agarwal, Vidhi (2012) ‘Privacy and Data Protection Laws in India’, International Journal of Liability and Scientific Enquiry, 5(3/4): 205–212. Ajithra, A.K., B. Venkatraman, M.T. Jose, S. Chandrasekar and G. Shanthi (2017) ‘Assessment of Natural Radioactivity and Associated Radiation Indices in Soil Samples from the High Background Radiation Area, Kanyakumari district, Tamil Nadu, India’, Radiation Protection and Environment, 40(1): 27–33. Appadurai, Arjun (2001) ‘Deep Democracy: Urban Governmentality and the Horizon of Politics’, Environment and Urbanization, 13(2): 23–43. Bhawna, Ms. (2016) ‘Nuclear Energy, Development and Indian Democracy: The Study of AntiNuclear Movement in Koodankulam’, International Research Journal of Management Sociology and Humanity, 7(6): 219–229. Bidwai, Praful (2011) ‘People vs Nuclear Power in Jaitapur, Maharashtra,’ Economic and Political Weekly, XLVI(8): 10–14. Bidwai, Praful and Achin Vanaik (2000) South Asia on a Short Fuse: Nuclear Politics and the Future of Global Disarmament, New Delhi: Oxford University Press. Brosius, Christiane (2010) India’s Middle Class: New Forms of Urban Leisure, Consumption and Prosperity. New Delhi: Routledge. Dunlap, Alexander (2019) ‘Agro sí, mina NO!’ The Tía Maria Copper Mine, State Terrorism and Social War by Every Means in the Tambo Valley, Peru’, Political Geography, 71: 10–25. Flam, Helena (1994) ‘A Theoretical Framework for the Study of Encounters between States and Anti-Nuclear Movements’, in States and Antinuclear Movements, ed. Helena Flam, Edinburgh: Edinburgh University Press.

228  Raminder Kaur Foucault, Michel (2010) The Birth of Biopolitics: Lectures at the Collège de France, 1978–1979 (Lectures at the College de France), London: Picador. Futrell, Robert and Barbara G. Brents (2003) ‘Protest as Terrorism?: The Potential for Violent Anti-Nuclear Activism’, American Behavioral Scientist, 46(6): 745–765. Gusterson, Hugh (2004) People of the Bomb: Portraits of America’s Nuclear Complex, Minneapolis: University of Minnesota Press. Hansen, Thomas Blom (2001) ‘Governance and State Mythologies in Mumbai’, in  States of Imagination: Ethnographic Explorations of the Postcolonial State, eds. Thomas Blom Hansen and Finn Stepputat, Durham: Duke University Press. Hardiman David (2003) Gandhi: In his Time and Ours, New Delhi: Permanent Black. Jungk, Robert (1979) The Nuclear State, translated by Eric Mosbacher, London: John Calder. Kaur, Raminder (2012) ‘Nuclear Power vs People Power’, Bulletin of the Atomic Scientists, https://thebulletin.org/2012/07/nuclear-power-vs-people-power/ Kaur, Raminder (2013) ‘Sovereignty without Hegemony: The Nuclear State, and a ‘Secret Public Hearing’ in India’. Theory, Culture and Society, 30(3): 3–28. Kaur, Raminder (2019) ‘The Digitalia of Everyday Life: Multi-Situated Anthropology of a Virtual Letter by a ‘Foreign Hand’. HAU: Journal of Ethnographic Theory, forthcoming. Kaur, Raminder (2020) Kudankulam: A Story of an Indian Nuclear Power Plant, New Delhi: Oxford University Press. Kuletz, Valerie L. (1998) The Tainted Desert: Environmental Ruin in the American West, Hove: Psychology Press. Laclau, Ernesto (2005) On Populist Reason, London: Verso. Masco, Joseph (2006) The Nuclear Borderlands: The Manhattan Project in Post-Cold War New Mexico, Princeton: Princeton University Press. Masco, Joseph (2014) The Theatre of Operations: National Security Affect from the Cold War to the War on Terror, Durham: Duke University Press. Mazzarella, William (2005) Indian Middle Class. www.soas.ac.uk/ssai/keywords/ Mian, Zian (1999) ‘Nuclear Nationalism.’ Nuclear Age Peace Foundation. May 5, 1999. https://www.wagingpeace.org/nuclear-nationalism/. Nilsen, Alf Gunvald (2012) Dispossession and Resistance in India: The River and the Rage, New Delhi: Routledge. Padmanabhan, V.T., R. Ramesh, V. Pugazhendi, K. Sahadevan, Raminder Kaur, Christopher Busby, M. Sabir and Joseph Makkolil (2013) ‘Counterfeit/Obsolete Equipment and Nuclear Safety Issues of VVER-1000 Reactors at Kudankulam, India’, Nuclear and Atomic Physics, http://vixra.org/abs/1306.0062 Rakshit, Nirmalendu Bikash (1999) ‘Right to Constitutional Remedy: Significance of Article 32’, Economic and Political Weekly, 34(34/35): 2379–2381. Ramana, M.V. (2013) The Power of Promise: Examining Nuclear Energy in India, New Delhi: Penguin Books. Ramana, M.V. and Divya Badami Rao (2008) ‘Violating Letter and Spirit: Environmental Clearances for Koodankulam Reactors’, Economic and Political Weekly, 14–18. Ruparelia, Sanjay (2013) ‘India’s New Rights Agenda: Genesis, Promises, Risks’, Pacific Affairs, 86: 569–590. Senthalir, S. (2012) ‘Violence against the Non-Violent Struggle of Koodankulam’, Economic and Political Weekly, 47(39): 13–15.

The right for rights 229 Schmitt, Carl (1985 [1927]) Political Theology: Four Chapters on the Concept of Sovereignty, trans. Schwab G., Chicago: University of Chicago Press. Srikant, Patibandla (2009) Koodankulam Anti-Nuclear Movement: A Struggle for Alternative Development? Working Paper 232, Bangalore: Institute for Social and Economic Change. Udayakumar, S.P. ed. (2004) The Koodankulam Handbook, Nagercoil: Transcend South Asia. Vaid, Minnie (2016) The Ant in the Ear of an Elephant, New Delhi: Rajpal and Sons. Varma, Pavan (1998) The Great Indian Middle Class, New Delhi: Viking. Weber, Max (2015) ‘Politics as a Vocation’, in Weber’s Rationalism and Modern Society, translated and edited by Tony Waters and Dagmar Waters, New York: Palgrave Books.

10 India’s Forest Rights Act Righting indigeneity, subverting property1 Rajshree Chandra

The global shift towards human rights’ rhetoric in the post decolonization era has meant that some conception of indigeneity has come to be incorporated in legal frames, albeit with varying ambitions and jurisdictions. There is, however, a structural ambivalence of human rights which also inflects indigenous peoples’ rights. Costas Douzinas draws our attention to a structural instability of human rights frames in general; their unremitting and interminable volatility, that makes ‘them shuffle back and forth between the vitality of modernity’s promise and the violence of its practice.’2 This ambivalence makes human rights both suppressive and subversive at the same time. They may have an equal propensity to become Instruments of neo-liberal governmentality, as also a source of counter-hegemonic mobilizations that aims to rearrange social hierarchies. Righting Indigeneity is a quest for entitling indigenous communities, for legislating and juridifying their customary claims, assigning them jurisdiction and in general making space for them within law. It is also a move that seeks to incorporate the messy, indeterminate categories of culture, communities, geographies, human ecologies into the framework of law. It is quite evident from the texts of international law conventions, treaties, even trade law, that there been a reconnaissance of “Culture”. Conventions like the UN Convention on Biological Diversity (CBD)3 include the protection of traditional knowledge and folklore.4 The FAO website, on its home page states, “Over the decades, FAO has included traditional and local knowledge and activities in policies, programmes and projects related to a wide range of issues, including farmers’ rights, poverty alleviation,

1 A version of this essay, titled ‘Forest Rights Act of India: Putting Indigeneity in Place’ has been published by the Indian Law Review. 2 Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon, Oxford and New York: Routledge-Cavendish, 2007) at p. 102. 3 Available at www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm, (Last visited on 2 September 2014) at p. 176. 4 Available at www.wto.org/english/tratop_e/trips_e/art27_3b_e.htm, (Last visited on 2 September 2014) [Emphasis mine].

India’s Forest Rights Act 231 nutrition and health, and gender equity, among many others.”5 The International Treaty of Plant Genetic Resources for Food and Agriculture (ITPGRFA) regards the preservation of farmers’ customary rights and their traditional knowledge to be a precondition to the maintenance of biological diversity and farmers’ rights and removal of rural poverty.6 In short, culture has become the expected terrain upon which indigenous groups bring their legal claims.7 Both “sui generis” claims of farmers and indigenous rights’ advocacy and national and international rights framework seek to incorporate and institutionalize, what are increasingly seen as “cultural claims”. Culture, expectedly, has become a malleable resource that has permeated the discourse of development rights. Assertions of race, identity, ethnicity, gender, and indigeneity have constantly pushed the universalized categories of moral and legal individualism to become inclusive of groups and communities and their cultures of knowledge and being.8 Culture and locality have found space within the liberal discourse of rights mainly under the rubric of what has come to be known as “third generation” rights. This has, however, not meant that the frames of liberal individualism have been jettisoned. The structural ambivalence that Douzinas refers to, has translated into a capacious and often conflictual incorporation of claims of the disadvantaged or marginalized peoples. The idea of personhood – of the self as foundational subject of rights – has mutated and endured discursively as well as in the instruments of law. Law, more often than not, limits the way in which indigenous and cultural entities are named and re-presented. As Harvey points out, this is most particularly about the way in which places, their inhabitants, and their social functions get represented.9 Collective claims and entities are often “re-presented” in the terms of an individual – as a “limited community”– through a legal inscription of negotiable, representable, possessive features. In a number of indigenous land rights claims, communities have been re-presented as discrete, temporally, or spatially circumscribed “private” entities. Culture and communities are translated as discreet entities made legible for the purpose of law, and made manageable for the purpose of politics.

5 Available at www.fao.org/docrep/011/i0841e/i0841e00.htm, (Last visited on 2 September 2014). 6 Available at www.farmersrights.org/about/index.html, (Last visited on 2 September 2014). 7 See, Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC and London: Duke University Press, 2010), at p. 102. 8 For instance, there are three UNESCO Conventions that bear directly on the rights to culture: The World Heritage Convention, 1972; the Convention for the Safeguarding of Intangible Cultural Heritage, 2006; and the Convention on the Protection and Promotion of the Diversity of Cultural Expression, 2007. Additionally, these also flow from provisions of the ICCPR, 1966 and the ICESCR, 1966. See further Graber, Christoph Beat & Mira Burri Nenova, Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Cheltenham: Edward Elgar Publishing, 2008), at p. 74. 9 David Harvey, “Between Space and Time: Reflections on the Geographical Imagination”, Annals of the Association of American Geographers, Vol. 80, No. 3 (September 1990), 419.

232  Rajshree Chandra One of the ways in which in which culture is made a “manageable resource” is by periodic assertions of inviolability of individual civil and political rights enshrined both as constitutional provisions and in the ICCPR (International Covenant on Civil and Political Rights).10 But this is seldom the case with “right to culture” claims. The UN Human Rights Committee is clear in stating that the right to culture, under Art. 27 of ICCPR, does not prevail over civil and political rights guaranteed by ICCPR and have to be consistent with them.11 Assigning communities rights imposes a contrarian burden on the rights assemblage. This in turn has meant that the juridical expressions of indigenous rights will only entail a set of obligations that do not really destabilize the entrenched civil and political rights. It is here that we encounter the conceptual as well as political limits of indigenous people’s entitlements. Indigenous communities’ rights are often tempered or rejected by states and international organizations. During the 1993 Working Group meeting on The Draft UN Declaration on Rights of Indigenous Peoples, France, Japan, the Netherlands, the United Kingdom, and the United States resisted the inclusion of collective rights because of the impact that collective rights would have on individual rights.12 They had difficulty with the term ‘indigenous peoples’ and stated that they could only accept the text if the rights in the Draft Declaration were to vest in individuals only.13 A similar concern pervades developed countries like USA’s resistance to signing of the CBD, which requires models of intellectual property to be cognizant of both environmental concerns and collective claims of stewardship of local indigenous peoples.14 The US refusal to sign the CBD is because

10 Art. 27 of the ICCPR reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” 11 UN Human Rights Committee, 50th Session, CCPR, General Comment No. 23, para. 8, Article 27 (Fiftieth session, 1994), U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 158 (2003). 12 United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 45th Session, “Report of the Working Group on Indigenous populations on its Eleventh Session,” paras. 68 and 69. The Working Group on Indigenous Populations, which was established pursuant to Economic and Social Council Resolution 1982/34 is a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights. Available at http://www2.ohchr.org/english/issues/indi genous/groups/wgip.htm, (Last visited on 2 September 2014). 13 For details, see Julie Debeljak, “Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations”, Monash University Law Review, Vol. 26, No. 1 (2001), 166–170. 14 The objective of TRIPS is to ensure that states make available to rights holders institutional procedures to enforce their intellectual (individual) property rights. Part III of TRIPS – Enforcement of Intellectual Property Rights, as may be available at www.wto.org/english/ docs_e/legal_e/27-trips_05_e.htm, (Last visited on 02 September 2014).

India’s Forest Rights Act 233 it regards CBD provisions as harmful to the competitiveness of biotechnology corporations and to the prospects of their access to biotic resources in bio-diverse countries.15 Socio-economic, cultural rights have a capacious, yet notoriously indeterminate core, which makes it difficult for indigeneity to be assigned a viable jurisdiction. In the plethora of entitlements that have found their way in international covenants and treaties,16 indigenous group claims often been rhetorically or disingenuously formulated and articulated. Even when they are legislated upon, their claims are often ‘trimmed, honed and shorn of [their] deontological excess’,17 such that they cohabit easily within the same framework as individuated entitlements of civil and political rights. It is in this context that the India’s Forest Rights Act (2006) assumes significance as it makes indigeneity a competent factor in jurisdictional encounters between the state (and corporate) power and the indigenous people, referred locally as Adivasis.18 It subverts the possessive idiom of property and assigns a jurisdiction to claims that are collective and cultural by grounding it in physical and spatial occupation and enabling local practices of belonging.19 The promise of the Forest Rights Act (FRA) lies in not only assigning jurisdiction to collective claims of Adivasis and other local communities but also in enabling contestations between indigeneity and corporatized, eminent domain powers. In a sense it is inaugurating a different mapping exercise, one that brings the uneven cultures and geographies to contaminate and occupy spaces in law. A piece of legislation (Forest Rights Act, 2006), a judgement (the Niyamgiri judgement, 2013), and the counter discursive voice of village communities of Raigarh (2015, 2016) form the three sites of this study. They reveal the different interconnected modes through which indigeneity is placed in law. This

15 Venbrux, Greg K., “When Two Worlds Collide: Ownership of Genetic Resources under the Convention on Biological Diversity and the Agreement on Trade-Related Aspects of Intellectual Property Rights”, University of Pittsburgh Journal of Technology Law & Policy, Vol. 6, No. 5 (2005), 5, at p. 6. 16 Ibid. 17 Katharine G. Young, “The Minimum Core of Economic and Social Rights: A Concept in Search of Content”, Yale Journal of International Law, Vol. 33, No. 1 (2008), at p. 113. 18 The term Adivasi translates loosely as original inhabitants. Often the term is used interchangeably, both in common parlance and by courts, with Scheduled Tribes. Scheduled Tribes refer to “tribes or tribal communities” that are explicitly identified by the constitution for the purpose of implementing the country’s affirmative action programs in a periodically revised schedule of the Indian Constitution. For a more detailed discussion, see Pooja Parmar, “Undoing Historical Wrongs: Law and Indigeneity in India”, Osgoode Hall Law Journal (2012), 497. 19 On critical geographies, see David Harvey, “Between Space and Time: Reflections on the Geographical Imagination”, Annals of the Association of American Geographers, Vol. 80, No. 3 (September 1990), 418–434. Also see, Noel Castree & Derek Gregory (eds.), David Harvey: A Critical Reader (Malden, MA: Blackwell, 2006).

234  Rajshree Chandra placement can be understood as an “occupation”, or as a subversion of the idiom and credentials of property. This occupation spatializes property in order to shift the focus away from the propertied subject and onto the broader networks of relations that interact to form property.20 It can be seen as asserting a jurisdiction for different practices of belonging, “where belonging between a subject and an object and between a part and a whole, become indistinguishable”21These three sites form three interconnected practices of alterity and normativity that reconfigure law in terms of an alternative geopolitical space, and that seek to “occupy law” and disturb its bias against collective forms of ownership. They negotiate the uneasy correlation between rights, cultures, and collectives and reimagine what a proper legal response to groups, identified by culture, ethnicity, ought to be. A brief examination of the three sites follows:

Righting indigeneity The Forests Rights Act (FRA) 2006 – along with its predecessor, the Panchayat (Extension to Scheduled Areas) Act (PESA), 1996 – expanded the mandate of the Fifth and the Sixth Schedule of the Indian Constitution that protects loose territorial claims of tribal communities over tracts of land or forests they inhabited.22 The final text of the FRA was an outcome of a compromise between two competing narratives. At one end of the spectrum was Campaign for Survival and Dignity that campaigned for the removal of the oppressive control of the forest bureaucracy on forested tribal homelands and its replacement by restoring democratic control over forest governance to statutorily empowered village assemblies. At the other end was the forest bureaucracy, supported by highly vocal hard-line urban wildlife neo-conservationists, popularly dubbed the “tiger-wallas”.23 They were distrustful of local communities and found them vulnerable to incitements of short-terms gains that would put the forest and wildlife at risk. They continued

20 Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (London: Routledge, 2015). 21 Keenan, Sarah, “Subversive Property: Reshaping malleable spaces of belonging”, Social and Legal Studies, Vol. 19, No. 4 (2010), at pp. 423–424. 22 The status of tribal entitlements has always been subject to political mobilization, assertion, and legal interpretation. While both PESA and FRA are notable for they devolve power to village-level gram sabhas, paving way for participatory democracy, they have not been properly implemented and have been inconsistent in addressing issues regarding tribal rights. Tribal communities have progressively been denied self-government and rights to their communities’ natural resources that should have been provided under the legislation. See, for instance, Namita Wahi, “Land Acquisition, Development and the Constitution”, Seminar. Available at https://india-seminar.com/2013/642/642_namita_wahi.htm. (Last visited on 9 September 2018). 23 Madhu Sarin with Oliver Springate-Baginski, “India’s Forest Rights Act -The anatomy of a necessary but not sufficient institutional reform”, IPPG Discussion Paper Series, Number Forty Five, July 2010. www.ippg.org.uk/papers/dp45.pdf.

India’s Forest Rights Act 235 to press for a statist model of conservation, a centralized bureaucratic forest management that would prevent a substantial devolution of powers to communities. The outcome was a middle ground and multiple opacities in the final text.24 There are several reasons to critique the FRA for there are many gaps that typically emerge when competing interests and narratives are sought to be reconciled. However, it is also possible to see the FRA as a space where the constitutive relation between the forest dwellers and forest is altered and instrumentalized through a language of rights and conservation as opposed to a “teleology free sense of belonging”.25 It is also important to see it as an interruption of the colonial discourse of governance and as the first governance laws based on participatory democracy, not just through representatives but by people themselves.26 C.R. Bijoy, an expert and leading campaigner of FRA, says that “[i]f you look at the legal history of India, essentially what we had was a colonial administration where a subjugated land and people had to be governed. In the revenue, forest and other departments, this whole attitude, culture, continues.”27 It is in the enduring context of law’s continued allegiance to “coloniality” – law in governance of subjects rather than citizens, law creating subjecthoods rather than citizenships – that FRA occupies a distinct, albeit a peculiar position, in Indian national law. Let me outline some of the key provisions of the FRA that enable a jurisdiction for indigeneity and a capacity to village and tribal communities to contest

24 Ibid. 25 Savyasaachi, “Forest Rights Act 2006: Undermining the Foundational Position of the Forest”, Economic and Political Weekly, Vol. 46, No. 15 (2011), at pp. 56–57. 26 C.R. Bijoy, quoted in Sibi Arasu, “Whose Forest Is It Anyway? Tamil Nadu’s Disastrous Disregard for Forest Rights Act”, The NewsMinute, www.thenewsminute.com/article/whoseforest-it-anyway-tamil-nadu-s-disastrous-disregard-forest-rights-act-62940. Also see C.R. Bijoy, “Access and Benefit Sharing from The Indigenous Peoples’ Perspective: The TBGRIKani ‘Model’ ”, Law Environment and Development (LEAD) Journal, Vol. 3/1 (2007). 27 It is important to underscore here that despite the potential FRA has and the promise it holds to effect a communitarian idea of property law, the performance of the FRA from 2008 has been patchy and quite disappointing in most states barring Maharashtra, Gujarat, Odisha, and Kerala. According to Community Forest Rights – Learning Alliance (CFR – LA (2016), only 2.7 million acres have been recognized as CFRs in the last 10 years. This is barely 3% of the potential for CFR rights. “The data shows that very little of the potential of the FRA has been achieved. Indeed, most states have not even started recognising CFR rights. Specifically, the data shows that Madhya Pradesh, Maharashtra, Chhattisgarh, Odisha, Andhra Pradesh, Telangana, Rajasthan, Karnataka, Himachal Pradesh and Uttarakhand are the states with high potential for CFR rights recognition. Of these high potential states, Uttarakhand and Himachal Pradesh have made no progress. Madhya Pradesh and Chhattisgarh, the highest and the third highest potential states, also show little progress in CFR recognition. Andhra Pradesh, Telangana, Jharkhand, Karnataka and Rajasthan have also recognised very small areas of CFR.” Kundan Kumar, Neera M. Singh, Y. Giri Rao, “Promise and Performance of the Forest Rights Act A Ten-year Review”, EPW, Vol. 52, Nos. 25 & 26 (June 24, 2017), 41.

236  Rajshree Chandra alienation of the lands they inhabit. The most relevant part of the FRA legislation is Section 3(1) of the Act, which can be summarised as a bundle of following rights:28 Title Rights – i.e. ownership claims on land that is being farmed by tribals or forest dwellers as on 13 December 2005, subject to a maximum of 4 hectares. Ownership is only for land that is actually being cultivated by the concerned family as on that date, meaning that no new lands are granted. Use Rights to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc. Relief and Development Rights: to rehabilitation in case of illegal eviction or forced displacement; and to basic amenities, subject to restrictions for forest protection. Forest Management Rights: to protect forests and wildlife. There are two very distinct features of the FRA. First, it seeks to restore the rights of forest dwellers over land (for cultivation and habitation), community

28 The rights which are included in section 3(1) of the Act are: 1 Right to hold and live in the forest land under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers; 2 Community rights such as nistar, by whatever name called, including those used in erstwhile Princely states, Zamindari or such intermediary regimes; 3 Right of ownership, access to collect, use, and dispose of minor forest produce (includes all non-timber forest produce of plant origin) which has been traditionally collected within or outside village boundaries; 4 Other community rights of uses of entitlements such as fish and other products of water bodies, grazing (both settled or transhumant) and traditional seasonal resource access of nomadic or pastoralist communities; 5 Rights including community tenures of habitat and habitation for primitive tribal groups and pre-agriculture communities; 6 Rights in or over disputed lands under any nomenclature in any State where claims are disputed; 7 Rights for conversion of Pattas or leases or grants issued by any local council or any State Govt. on forest lands to titles; 8 Rights of settlement and conversion of all forest villages, old habitation, unsurveyed villages and other villages in forest, whether recorded, notified or not into revenue villages; 9 Right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use; 10 Rights which are recognised under any State law or laws of any Autonomous Dist. Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State; 11 Right of access to biodiversity and community right to intellectual property and traditional knowledge related to biodiversity and cultural diversity;What is excluded specifically – right to hunt; and by implication, in the absence of individual titles to transfer/ sell any body of any species of wild animals.

India’s Forest Rights Act 237 forest resources and habitats, and the governance and management of forests.29 And second, it devolves power to village-level gram sabhas (village councils) who have a legal capacity to contest and exclude alienation of land in scheduled areas. From 2015 onwards, recourse to FRA law has enabled village and tribal communities in states of Orissa, Chhattisgarh, Maharashtra Arunachal Pradesh to veto land-acquisitions claims of corporations and state governments by simply refusing consent. It expands the mandate of the Fifth and the Sixth Schedules of the Indian Constitution that protect loose territorial claims of indigenous communities over tracts of land or forests they inhabit. It bolsters legal claims of tribal and village communities by devolving a capacity to village councils (gram sabhas) to contest alienation of land (and resources) in Scheduled Areas. Most importantly, using Sarah Keenan’s formulation, it subverts property by spatializing it.30 Rather than a focus on the propertied subject, it shifts focus to the space that surrounds the subject and onto the broader networks of relations that interact to form property. Put differently, it gives a jurisdiction to different practice of “belonging”, “where belonging between a subject and an object and between a part and a whole, become indistinguishable.”31 To illustrate let’s briefly see how the principle has worked in the two remaining sites that I have selected as examples of “righting indigeneity, subverting property” – Niyamgiri and Raigarh. In both places I illustrate how law’s bias against collective forms of ownership is reconfigured both in terms of an alternative geopolitical space and an alternative jurisdictional space.

Assigning jurisdiction32 Dongaria Kondh tribals are India’s indigenous people – Adivasis – located in the south-eastern part of Orissa spanning the Kalahandi, Rayagada districts. The Niyamgiri mountain – considered to be the abode of their deity Niyamraja – is the foundation of their religion. Their faith is rooted in an awareness that Niyamgiri’s perennial streams and forests is their life source, given, nurtured and protected by their deity. They also believe that the forest exerts a “magnetic force” which bestows fertility on the region and therefore akin to a deity that should be revered and protected.33 One reasons why the Niyamgiri mountains are heavily forested is because of a Dongaria Kondh taboo on cutting trees on the mountain. Despite being classified as a “primitive tribe”, Padel and Das’ study reports them to be endowed with an evolved sense of rules (niyam) that protect the

29 Geetanjoy Sahu, Tushar Dash & Sanghamitra Dubey, “Political Economy of Community Forest Rights”, Economic and Political Weekly, Vol. 52, Nos. 25 & 26 (June 2014). 30 Sarah Keenan, “Subversive Property: Reshaping Malleable Spaces of Belonging”, Social and Legal Studies, Vol. 19, No. 4 (2010), at pp. 423–439. 31 Ibid., 423. 32 For more details, see Rajshree Chandra, “Understanding Change With (in) Law: The Niyamgiri Case”, Contributions to Indian Sociology (August 2015). 33 Ibid.

238  Rajshree Chandra environment.34 The Saxena Committee, constituted by the Ministry of Environment and Forests (MoEF) in 2010 to look into the mining proposal of Sterlite/ Vedanta and the Orissa Mining Corporation (OMC) also acknowledge that the “Dongaria Kondh [are] renowned for their skill in horticulture . . . [and] have crafted a diverse and intricate shifting cultivation based agro-forestry system that uses mountain slopes and streams to great advantage.”35 It has been a decade and a half since the 8,000-plus Dongaria Kondhs and other Adivasi groups began their struggle to save the Niyamgiri hills, the abode of their deity, Niyam Raja, from Vedanta’s mining project. Dongaria leader Lodu Sikaka said, “Our God lives in open space, you keep your God locked up with a key. We won’t leave Niyamgiri. If the government and politicians ask for it we will fight.” So it is interesting, that a remote tribal community, in one the most underdeveloped states of India, with religio-cultural practices that are marked as culturally “different” (and therefore a source of amusement for the census official), with little access to “development” and little recourse to “law”, finds itself in the midst of (perhaps) a politically significant moment where claims of indigeneity trump the power of the eminent domain.

The beginnings of the battle The Niyamgiri mountains are home to one of the world’s best bauxite, the ore for aluminium needs to be mined to feed the Vedanta aluminium refinery located in the vicinity (the Lanjigarh Aluminium refinery is located at the foothills of the Niyamgiri hills).36 While the mining as an activity is shifting away from the developed countries of Europe, US, and Japan – primarily because of hazard, human rights, and environmental concerns, it is increasingly being seen as paving the roads for development in Third World countries like India.37 The history of the project suggests that environmental and tribal concerns were flagrantly breached ever since the project first began with Sterlite seeking environmental clearance for an Aluminium Refinery Project over 723 ha of land

34 Felix Padel and Samarendra Das, Out of This Earth (Delhi: Orient Black Swan, 2010) at p. 140. 35 N.C. Saxena et al., Report of the Four Member Committee for Investigating into the Proposal Submitted by the Orissa Mining Company for Bauxite Mining in Niyamgiri (16 August 2010), 84. 36 So great is the demand for aluminium that this age is described as some as the “aluminium age”! Aluminium and its alloys are crucial for the arms and automobile industry: light weight aircrafts, racing cars, aluminium rich satellites, cartons for packaging are some of the commodities that have an insatiable appetite for aluminium. 37 UK had 720,000 mine workers in 1961; it has now less than 10,000 and that too in new, highly mechanized open cast mines. Britain closed its last alumina refinery in Burntisland in 2002. All over Europe refineries and smelters are closing. Samarendra Das and Felix Padel note and increasing shift of mining and metal manufacturing away from Europe and the US to Third World countries and the Middle East. Ibid., Padel and Das, 52–53.

India’s Forest Rights Act 239 which included approximately 660 ha of forest land.38 An MOU was signed between the state owned, Odisha Mining Corporation (OMC), and Sterlite Industries India Limited (SIIL), a subsidiary of Vedanta in 2003 for mining in the tribal-dominated Niyamgiri forest areas of the state. The story from then on has been one of collusion between the state government, Sterlite/Vedanta, and routine complicity of the MoEF. In September 2004, the MoEF granted an environmental clearance for the aluminium refinery project, delinking it with the mining project. As soon as the project was delinked and the environmental clearance got for the refinery, the Orissa Mining Corporation (a state-owned corporation) forwarded a proposal to the MoEF for mining of bauxite in the region, i.e., the Niyamgiri hills. In the meantime, officials from Sterlite had been at work with the Kondh villagers, persuading them to vacate the villages in return for compensation and “development” (jobs, tractors, education, money, bank accounts, and homes in a nice new colony).39 “They are flooding us with money,” said Dai Singh Majhi’s. Applications sent from 12–13 villages to the district administration stated: “we are not going to give up our Water and Forest. We won’t part with our Niyamgiri Mountain.”40 In another exchange between the one of the founding members of the Niyamgiri Surakhya Samiti, Bhim Majhi stood up to the collector when asked why they were opposing Sterlite Company. Bhim Majhi replied, “we are resisting for our motherland, for our mountain. So we oppose Sterlite. We oppose the government. The summer is very hot already; it will get worse if Sterlite comes. You won’t get rain then . . . so we want them to stop.”41 However, the resistance to the project was not uniformly adversarial. Under pressure from Sterlite, the tribal community was split into “acceptors and refusers”, the refusers often facing intimidation and torment by the Sterlite funded youth club. In the following months, with PUCL entering the fray and lending a voice to the tribals, Sterlite, which was till now a fully owned subsidiary of Vedanta, became Vedanta Resources plc, a company listed on the London stock exchange. What was significant was that the Vedanta’s global profile set investments rolling, a factor that was to further enlist the support of the state government of Odisha.42 Local resistance to the refinery project continued, as did the cycle of eviction, displacement, and resistance. Vedanta prematurely built a 1 million ton per year alumina factory (producing also 2 million tons of red mud waste), displacing some villages in Lanjigarh. However, significant from the perspective of what

38 Orissa Mining Corporation v. Ministry of Environment & Forest & Others. Writ Petition (Civil) No. 180 of 2011, p. 1. 39 Ibid., 148. 40 Quoted from Padel and Das, 148. 41 Ibid., 149. 42 Ibid.

240  Rajshree Chandra was to unfold, in terms of the “law of land”, was the fact that Lanjigarh refinery worked mostly with costly and polluting bauxite coming by train and truck from distant places because Vedanta till then had not been able to get its hands on bauxite from the nearby Niyamgiri Hill. It was the mining project and not the refinery project which eventually was to foreground the SC intervention. The Vedanta mining story is expectedly set in a mining happy country like India where human and environmental ecology is systematically subverted to serve myopically conceived, rent-seeking “development” projects. In what was totally unanticipated and unexpected, the Vedanta story took an unprecedented turn. The decade old resistance of the 8,000 odd Dongaria Kondhs and other adivasi groups of the region found unlikely allies – the MoEF and the highest court of the land, the Supreme Court of India.

The legal breakpoint Recall that in 2004 September, the MoEF granted environmental clearance for the ARP, after which in February 2005 the Orissa State government forwarded a proposal to the MoEF for the mining of bauxite by OMC-Vedanta and the diversion of 660 ha of forest land. It was here that first the SC stepped through its Central Empowered Committee in 2005,43 and then the MoEF in 2009, under the “eco-friendly” Jairam Ramesh, which set up three member “Expert Committee” (Usha Ramanathan Committee) to look into issues of environmental compliance by the ARP project. The Committee recommended application of Forest Rights Act (FRA) to the proposed mining project,44 which led to formation of the Saxena Committee and the tabling of its report in August 2010. The Saxena Committee Report was a scathing indictment of the collusion between the Orissa state government, Vedanta/Sterlite, and the gross violations of the FRA, Forest Conservation Act (FCA), 1980, Environmental Protection Act (EPA), 1986, Orissa Forest Act (OFA), pollution control norm, by the refinery project (ARP).45 Based on its assessment of the ecological costs and the violation of the Kutia and Dongaria rights under the FRA, the Committee proposed “that allowing mining in the proposed mining lease area by depriving two primitive tribal groups of their rights over the proposed mining site in order to benefit a private company would shake the faith of tribal people in the laws of the land. Since the company in question has repeatedly violated the law, allowing it further access to the proposed mining lease area at the cost of the rights of the Kutia and

43 CEC had been constituted in 2002 for wildlife, habitat, forest, and environment protection. It directed the MoEF to keep the OMC proposal for environmental and forest clearance pending and seek the opinion of expert committees (Wildlife Institute of India (WII) and Central Mining Planning and Design Institute (CMPDI). On the recommendation of these two committees the mining project was okayed in principle subject to “modalities and rehabilitation”. For details see, SC. WP 180 of 2011, pp. 12–16. 44 Ibid., 19. 45 Saxena Committee Report (16 August 2010), 65–82. Available at http://envfor.nic.in/ sites/default/files/Saxena_Vedanta-1.pdf, (Last visited on 28 November 2013).

India’s Forest Rights Act 241 Dongaria Kondh, will have serious consequences for the security and well-being of the entire country.”46 Sections 3.1(i), 3.1(e) and 5 of the Forests Rights Act were specifically referred to by Saxena Committee: the provision mandates (1) that concerned forest dwellers – the Dongaria Kondhs – be treated as right holders, as statutory entities, empowered with the authority to protect the Niyamgiri hills,47 and (2) that their right to community tenures (of habitat and habitation), rights to grazing and the collection of mineral forest of the hills, customary right to worship be recognized. These rights, the report stated, ‘would be robbed of if mining is permitted in Niyamgiri hills’.48 Based on these two reports and reported violation of the FRA, the Environmental Protection Act, Forest Conversation Act, the MoEF rejected “Stage II forest clearance for diversion of 660 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa and also for other consequential reliefs (order dated 24.8.2010).”49 Heckled by the MoEF rejection of Stage-II forest clearance for the Bauxite Mines, OMC approached the SC seeking a Writ of Certiorari “to quash the order passed by MoEF rejecting the Stage-II forest clearance for diversion of 660 hectares of forest land.”50 In response, the Supreme Court to gave credence to the relevant provisions (protecting tribal and indigenous communities’ rights) that were already enshrined in the Constitution under the Fifth Schedule,51 in Article 244 (4) which speaks of the Tribes Advisory Council,52 and under the Forest Rights Act (FRA),53so that “State legislations that may be made shall be in consonance with the customary law, social and religious practices and traditional management practices of community resources.”54

The speech of law In April 2013, the Supreme Court of India passed a decision that could be seen as inaugurating new forums of judicial action and address of law, one that admitted

46 Saxena Committee Report, 87. 47 FRA, www.stscodisha.gov.in/pdf/FRA_English.pdf. 48 SC. WP 180 of 2011, 34–35. 49 Ibid., 1–2, 27. 50 Ibid., 1–2. 51 Article 244 (1) of the Constitution of India which appears in Part X provides that the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura – covered in the Sixth Schedule) shall be according to the provisions of the Fifth Schedule. The SC stated, “the object of the Fifth Schedule and the Regulations made thereunder is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and good Governance in the Scheduled Area.” 52 SC. WP 180 of 2011, at 45. 53 Ibid., at 51–60. 54 Ibid., at 47.

242  Rajshree Chandra the articulation of collective-cultural claims which have thus far lacked determinate content and legal articulation in India. In keeping with the primary objective of the FRA, the Court acknowledged the Niyamgiri hills as the traditional abode and common property resource of the Dongaria Kondh, recognizing and inculcating in law the organic connection tribals and their land.55 Importantly, the SC designated the gram (palli) sabhas as competent forums to adjudicate on issues of individual, community, and cultural rights of tribals and traditional forest dwellers.

In endowing the gram sabhas with the power to exclude, the SC made forest (community) rights defining of the outcome of the encounter between the Dongaria Kondhs, the Odisha Government, and the Vedanta Corporation. Rights, as Fischlin and Nandorfy suggest, are a defining outcome and by-product of the social practice of encounter.56 In many ways the SC translated the articulation of the interests of the Kondhs with a legal vocabulary that had hitherto lacked agency. Importantly, it also enabled the mechanics of material and cultural relations that describe the Dongaria Kondh community. The following extracts reveal the language that the SC deployed to lend legibility to community rights (all emphases mine): We are, therefore, of the view that the question whether STs [Scheduled tribes] and other TFDs [traditional forest dwellers], like Dongaria Kondh, Kutia Kondh and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, . . . have to be considered by the Gram Sabha. Gram Sabha. . . . [They] can also examine whether the proposed mining area Niyama Danger, 10 km away from the peak, would in any way affect the abode of Niyam-Raja. Needless to say, if the BMP [bauxite mining project], in any way affects their religious rights, especially their right to worship their deity, known as Niyam Raja, in the hills top of the Niyamgiri range of hills, that right has to be preserved and protected. (SC. WP 180 of 2011,58 at 78–79)

55 The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. “For the first time the Forest Rights Act recognizes and secures: 1 Community Rights or rights over common property resources of the communities in addition to their individual rights 2 Rights in and over disputed land Rights of settlement and conversion of all forest villages, old habitation, un-surveyed villages and other villages in forests into revenue villages 3 Right to protect, regenerate or conserve or manage any community forest resource which the communities have been traditionally protecting and conserving for sustainable use. 4 Right to intellectual property and traditional knowledge related to biodiversity and cultural diversity 5 Rights of displaced communities 6 Rights over developmental activities. Available at www.fra.org.in/new/. (Last visited 10 October 2013). 56 Daniel Fischlin & Martha Nandorfy, The Community of Rights: The Rights of Community (Oxford: Oxford University Press, 2012), 8.

India’s Forest Rights Act 243 The Gram Sabha is also free to consider all the community, individual as well as cultural and religious claims, over and above the claims which have already been received from Rayagada and Kalahandi Districts. (59 at 79) We are, therefore, inclined to give a direction to the State of Orissa to place these issues before the Gram Sabha. . . . On the conclusion of the proceeding before the Gram Sabha determining the claims submitted before it, the MoEF shall take a final decision on the grant of Stage II clearance for the Bauxite Mining Project in the light of the decisions of the Gram Sabha within two months thereafter. (60 at 80) These extracts do reveal a certain rethinking of claims and entitlements through the prism of community instead of default, liberalist positions of privileging individual rights or the statist position of privileging the state. Based on the SC ruling, 12 villages were selected in the Niyamgiri hills (rather arbitrarily out of more than 200) by the Orissa government to decide whether the bauxite-mining project could go forward. All 12 Gram Sabhas categorically, vociferously, and resoundingly rejected the Vedanta Resources project for an open-pit bauxite mine in their sacred Niyamgiri Hills – an unprecedented, historic triumph for tribal rights.

Staking claims57 The third site of this study are five villages – Pelma, Sakta, Urba, Jarridih, Madhuamaar – in the district of Raigarh, in a central Indian state of Chhattisgarh.58 As per the FSI (Forest Survey of India) data of 2011, almost 36% of the total geographic area of Raigarh comprises of forest cover. The primary occupation of population here is agriculture, livestock rearing, and collection of forest produce.59 This is designated as a tribal district, which is a Schedule V area (Scheduled Tribes are 33% of the total population) with Gonds and Oraons being the main inhabitants.60 As in the Niyamgiri case, what sets up the contest between environmental issues, indigenous communities’ rights, and development is that Raigarh is also home to rich coal reserves. It was in the late 1990s that Raigarh emerged as the hub for power, coal mining, and sponge iron in Chhattisgarh. The largest coal reserve of the state are

57 The Raigarh case study is an ongoing project that is tracking land acquisition in the region. Fieldwork here was last conducted in December 2016. 58 We conducted a field visit to these five villages in December 2016. The voices that follow are based on interviews and conversations with members of the gram sabha in each of these five villages. 59 http://secl.gov.in/writereaddata/MRCF%20%20Report%202014.pdf. 60 www.manthan-india.org/wp-content/uploads/2017/01/CG-FFT-Report-Nov-2016FINAL-BY-SKD-VER-2-3DEC16.pdf. p. 7.

244  Rajshree Chandra found in Mand-Raigarh coalfields. It spread over an expanse of over 112,000 hectares with an estimated 21,117 Mt of coal. There are 80 coal blocks in the Mand-Raigarh coalfields of which the Tamnar and Gharghoda blocks – part of the Gare Pelma coal block – are the largest.61 After reallocation was ordered by the Supreme Court in the late 1990s, and after Supreme Court struck down the allocation of 214 private coal mines in 2014, state-owned South Eastern Coalfields Limited (SECL – a subsidiary of public sector coal mining giant, Coal India Ltd) has emerged the reigning custodian of these mines. Given the huge coal deposits, ample availability of water, and a not-so literate population of tribals and other village communities, there has been a presumption of easy acquisition of land for coal mining and coal based power plants in the district. “Underneath the land that was owned and/or occupied for generations by tribal communities, lay more than twenty thousand metric tonnes of coal which needed to be mined to fire the engine of economic growth and achieve development.”62 But for the tribals this lived space, this land that they occupied, had a different value. A study conducted by a two-member fact finding team, comprising of environmental and social researchers Shripad Dharmadhikary and Manshi Asher, reported that most of these coal mines came up either on their agricultural or forest and pasture lands. “Each and every aspect of the natural resource based economy has been adversely affected by the spread of industrial and mining activity in the district.’63 From early 2016 onwards there has been growing mobilization in various villages of Raigarh against any further land acquisition and forest diversion for mining in the area. On June 23, 2016, the people of Kosampalli (Tamnar tehsil) organised a massive rally demanding implementation of the Forest Rights Act and compensation as per the new Land Acquisition Act of 2013. In July, they also carried out a week-long blockade.64 In April 2017, adivasis from 15 villages (of Raigarh) marched to protest against a government order that that is directing them into giving consent to Maharashtra State Power Generation Company (Mahagenco) to acquire land for the Gare Pelma sector-2 coal mine in forest land in Tamnar.65 While the gram sabha consent is a mandatory condition stipulated for any acquisition of forested or Panchayat (local administrative unit) land, often

61 See, Land Use / Vegetation Cover Mapping of Mand Raigarh Coalfield based on Satellite Data for the Year 2014. Available at http://secl.gov.in/writereaddata/MRCF%20%20 Report%202014.pdf. 62 https://thewire.in/68974/raigarhs-coal-curse/ 63 Environmental Violations in and around Coalmines, Washeries and Thermal Power Plants of Tamnar & Gharghoda Blocks, Dist. Raigarh, Chhattisgarh. At www.manthan-india. org/wp-content/uploads/2017/01/CG-FFT-Report-Nov-2016-FINAL-BY-SKD-VER2-3DEC16.pdf. pp. 7–8. 64 Mansi Asher, “The Coal Curse of Raigarh”, The Wire, September 28, 2016. 65 www.newindianexpress.com/nation/2017/apr/14/sign-here-chhattisgarh-villagers-seesly-move-to-acquire-forest-land-for-coal-mining-project-1593638.html

India’s Forest Rights Act 245 villagers find themselves tacitly coerced to write away their claims and entitlements vested in them by the Forest Rights Act to the state-corporation combine. The district of Raigarh is an Adivasi district with special protections around transfer of land, prescribed by the Fifth Schedule of the Indian Constitution. It is also mandatory for communities to be consulted on their rehabilitation under the PESA, 1996. The consent of adivasi communities is also mandatory under the Forest Rights Act and specifically referred to in the Environment and Forest Clearances granted to the project. However, in flagrant violation of FRA’s provision of consent gram sabha consent have not been obtained in many villages like the Kudumkela, Singhmouza, and Jampali, all in Raigarh. In Jampali, SECL has already started open cast mining without the consent of gram sabhas/village councils. Displaced communities include Kawar, Gond, and Bhuiyan adivasis, as well as families from the Yadav pastoral community. There is in general a growing awareness, especially post Niyamgiri, that communities have a right to be consulted, fully rehabilitated, and compensated before mining projects ensue. There is also a growing awareness that the provision of “consent” in FRA is not merely a duty of the government to consult but a power of the community to exclude. In March 2016, five Adivasi villages in Tamnar tehsil of Raigarh – Jarridih, Urba, Maduadumar, Pelma, and Sakta – unanimously vetoed the plans of SECL, Coal India Limited, to acquire their lands and mine their forests. At stake is over 2,000 hectares of land, including 280 hectares of forests and lives of 1,250 adivasi, Dalits, and OBC families who stand to be displaced. Field notes from these five villages reveal two interesting threads that I flagged earlier in the chapter. The subversion of property happens at two levels: first when a spatialized conception of belonging becomes the marker of both what is property and whose is property; and second, when the contingent link between formal (legal) property and the right to exclude is detached. These two subversions together made it possible for villagers in Jarridih, Urba, Madhuamar, Pelma, and Sakta to stake possession and use claims even in cases where they did not have individual pattas (property titles). It has also made it possible for these five villages to “exclude” state claims over coal reserves and forests. Of these five villages, Pelma probably leads the way in the articulation of a customary entitlement over land and staking rights of possession and exclusion over forests and agricultural land. Communities in Pelma have been resistant to land acquisition for coal mining form 2014 onwards when they were first sent a notice that land in Pelma has been put under Section 4 of the Land Acquisition Resettlement and Rehabilitation (LARR) Act, 2013. Gram Sabha resolutions passed in October 2014, February 2015, June 2015, March 2016 used the FRA provision of consent to reject SECL mining proposal. In March 2016 gram sabha at Pelma, SECL functionaries were greeted with slogans of “Bhoo arjan raddh karo!” (Cancel land acquisition) and “Khadaan nahin Anaaj chahiye” (we want grain, not mines). “SECL and state authorities, you should know that in our villages, we have a lot of work to do. We have to tend to our fields, collect forest produce and make a living. Please do not waste

246  Rajshree Chandra our time by calling for these special gram sabhas to take away our forests when we’ve already told you four times over that we don’t want to yield an inch of our land to you,” says Mahesh Rathia, a Rathi adivasi man.66 “At least 50 per cent of the people here in this gram sabha rely on these jungles for their livelihood. Every house gets at least Rs 3,000 a month worth of forest produce from the jungle – from its mahua trees to kendu leaves,” says Shatrughan Sidar, a farmer from the village of Pelma. “The economic value of what every family here derives cannot compare to the profit only you will make.”67 In December 2016 when we visited Pelma, similar narratives of belonging and attachment to land were articulated. Bansidhar Naik, a farmer, said, “We do not want to leave our village. The only conclusion we came to is that if the mines are opened, it will benefit none. Our entire existence will be wiped out. Our village comes under PESA and FRA and therefore, we vehemently protested against SECL in the gram sabha.” Duble Singh Patel, another farmer from Pelma said that they refused to buckle under SCEL’s pressure. “We have many benefits from the forest. We get medicinal herbs, fruits, tendu leaves etc. We feel very close to the forest. This clean environment is also because of the forest. Jahan jungle hai, wahan jeevan hai.” “For whatever reason, we will not give up our forest. Since our fathers & grandfathers, we have managed the forest. There are several animals in the forest. Our gods reside in the forest and protect us. In return, we have to protect the forest.” “In areas where there are coal mines, people’s complexion has also turned black. These company people sitting in Delhi and Bhopal eat sweets and we have to eat coal dust. We will not give our land.” Villagers in Pelma have made a demand for community forest patta but feel that the government does not listen to them. Four people have received 1.5 acres individual land pattas in the reserved forest. The demand for community patta and around 200 applications for individual pattas have been rejected by the district administration since the area has been placed under land acquisition. In village Madhuadumar, the ex-deputy sarpanch said, “We do not understand the law; we do not the legalities. We are not that educated. But what we do know is that we have to make informed choices as the decision of the gram sabha prevails and we have the utmost power. This Jal, Jungal, Zameen, is ours. . . . We are the owners of our land and masters of our own life. We do not want to work under someone else.” In Jarridih, SECL officials came to the Gram Sabha to tell them about the developmental benefits of selling their land to the company. Not taking the SECL officials at face value, around 40 villagers went to some villages to review the

66 www.dailyo.in/politics/chhattisgarh-land-acquisition-dalit-forest-rights-act-adivasi-coalindia-secl-bharat-mata/story/1/10037.html. 67 Ibid.

India’s Forest Rights Act 247 claimed benefits that accrue to the villages from mining. The situation at Laat (a coal mine operated by SECL, around 70 kms from Jarridih), for example, was miserable, they said. “The facilities that the company has promised in Laat were never provided. The people there feel cheated. They have to travel 4 kms to fetch water. There are no bore wells, schools or hospitals built by SECL. Out of 440 people who have sold their land, not even 4 have been employed. The blasts in the coal mines blow off the roofs of the houses in the village. They have dug a trench as deep as 500 ft around the village and there is only a narrow cracked road to access the village.” Similar apprehensions were voiced by villagers in Sakta and Urba. Around 50% of Sakta’s population does not own land and are dependent on forest produce and/or work as farm labourers or in the mining companies nearby. For the landless there is no hope for even a rehabilitation package as the law promises resettlement of only those who own land. Bhanu Pratap of Urba village had an interesting understanding of his ownership claim: “Why should we give our land to the company? It is our own land. Our land, our coal. We will dig it ourselves and sell it.” “We are aware that they are giving us very low rates for our land. Our demand is that we will dig the coal ourselves and send it off in the trucks. We will do it according to our will . . . We are opposing SECL because this is our ancestral land and it belongs to us.” Similar conceptions of ownership are articulated over forest produce. The villagers feel they have half the rights over the forest for activities like collecting firewood, Tendu leaves, Mahua fruits, etc. They feel the land belongs to the government and they have 50% stake in it. Even though they have been warned by the forest officials to not cut the bamboo, etc., from the forest, they continue to feel entitled to do so whenever the need arises. Even without formal pattas, some of them are using forest land to grow the rice crops. “We are not scared of the forest department,” they say. The story of these five villages is unique for there’s a new solidarity amongst the landed and the landless. Those who do not own land will neither get a job in the company nor any wealth if the land were to be acquired by SECL. But interestingly, it is the better-off farmers who are leading the crusade against SECL. The Sarpanch of Pelma comes from the richest family in the village, with the family owning nearly 200 acres of land and having strong political connections with the state’s ruling party. But he is also one of the strongest opponents of selling off their land for coal-mines. What binds them together is a sense of shared spatiality. Their relationship with the forest and land is intimate and spiritual. They fear that resettlement will lead to a loss of their Adivasi culture. “We do not want to leave our village. The only conclusion we came to is that if the mines are opened, it will benefit none. Our entire existence will be wiped out. Our village comes under PESA and therefore, we vehemently protested against SECL in the gram sabha. We are opposing SECL because this is our ancestral land and it belongs to us.”

248  Rajshree Chandra

Subverting property The FRA, and through it the movements at Niyamgiri and Raigarh, assert a culturally distinct relationship of belonging to land. The Niyamgiri forests have a religious and cultural value; the Raigarh village and forest land is seen as a care-giver, a source of livelihood, as a heritage, as ancestral lands. To juridify this rather esoteric, abstract, indeterminate sense of belonging, to translate culturally distinct tribals into lawful entities, is the chief achievement of the FRA. It is important to underscore that property here is defined not just by the law (FRA) but by a range of social norms, rules, and regulation. FRA here is not the only network that is producing the property of the communities and their lands, gods and forests. Not just property but the entire space here is being produced through a network of social rules, norms, and relations, including but not limited to law. Righting indigeneity is a process that cannot begin without subverting the two dominant frames – property and law – that coalesce to inhibit articulations of indigeneity in mainstream law. In subverting the property frame, the FRA makes two principal moves. First, it veers away from an absolute idea of property that combines the Blackstonian triad (from J.W. Blackstone, who Thomas Merrill called the “patron saint of property essentialism”68) who of rights of “possession, use, and disposition,” or alternatively, the rights to exclude, to use or enjoy, and to transfer. It severs the contingent link between formal ownership and right to use. Possession and use, in other words, can be claimed as entitlements even in the absence of formal property titles. For instance, the Indian State has eminent domain powers over land that is outside of private ownership titles, which means that all forestland, natural resources, waters are formally owned by the state. But the state is not always in possession of these lands. The Niyamgiri hills, for instance, in the Eastern state of Orissa (which I refer to in Section II), are occupied and “used” by a tribal community known as the Dongaria Kondhs. But the state government retains the “ownership” of the Niyamgiri hills. In fact, in a Supreme Court case between petitioners – the state-owned Orissa mining corporation (OMC) – and the Ministry of Environment and Forests (MoEF) (which had rejected the OMC bauxite mining proposal for diversion of 660 ha of forest land for bauxite mines), OMC alleged that the bauxite reserves that were beneath the Niyamgiri forest soil, were a property of the state. However, both eminent domain claims – over forests by the MoEF and over sub-soil bauxite reserves by the Orissa government – did not alter the fact that the Dongaria Kondhs were in “possession” of Niyamgiri forests and were claiming usufruct rights over it. Having the ownership of something or being in possession of something is not always equivalent to having the right to use it. It is in this interstitial space that a subversive form of property can be located. It is doubly subversive because it inverts the libertarian premise of just initial acquisition (Locke, Nozick) and labour theory of property to make a claim

68 Thomas W. Merrill, “Property and the Right to Exclude”, Nebraska Law Review, (1998), at p. 734.

India’s Forest Rights Act 249 not for individuated property but for collective, communal property. The FRA acknowledges the “initial acquisition” of tribal and farming communities as just and then assigns it a juridical weight, making the legal content of this property right both interesting and jurisdictionally instructive. The FRA conceptualizes rights of traditional forest dwellers in terms of use occupation and exclusion. The latter is an important stick in this bundle of rights. The forest rights law stipulates that before forest land can be acquired for any project, the gram sabhas in the area are required to certify that the process of recognition of the rights is complete and give their informed consent to the diversion of forest land. Understanding the role of consent (and thereby the right to exclude or forestall alienation of land for “public purpose”) has assumed significance given the recent histories “placing” indigenous land claims. The standard bundle of rights for landed property include (1) right to own property (represented by a formal title); (2) the right to enjoy it to the exclusion of everyone else; (3) and a right to alienate it or transfer it. But the FRA does not employ this standard rights bundle to delineate property claims of forest communities. It does not explicitly spell out the feasibility or terms of transfer. Instead, much of the ownership claims of forest dwellers rest on the right to exclude implied in the provision of consent. Right to exclude thus becomes “one of the most essential sticks in the bundle of rights that are commonly characterised as property.” Property, as a purely conventional concept, has no fixed meaning: it is a fluid category whose meaning can be assigned by each legal system in accordance with its peculiar values and beliefs. However, there is broad consensus that “the right to exclude others” is one of the most essential sticks in the bundle of rights that are commonly characterized as property.69 The right to exclude others becomes more than just “one of the most essential” constituents of property: in the case of these forest rights, it becomes its sine qua non. “Give someone the right to exclude others from a valued resource, i.e., a resource that is scarce relative to the human demand for it, and you give them property. Deny someone the exclusion right and they do not have property” (Merrill, 1998: 730). According to Merrill, for instance, the right to exclude is a necessary and sufficient condition of identifying property (731). It is by embedding the right to exclude in the provision of consent that the FRA makes its second and boldest move by creating possibilities of a subversive form of property. A host of scholars – Madhavi Sunder (2006, 2012), Anupam Chander (2004),70Kristen Carpenter (2013),71 Arjun Appadurai (1986)72 – argue in defence

69 Ibid., 730–754. 70 Madhavi Sunder, “The Invention of Traditional Knowledge”, Law and Contemporary Problems, 70(2) (2007), at pp. 97–124; Anupam Chander and Madhavi Sunder, “The Romance of the Public Domain”, California Law Review, Vol. 92, No. (5) (2004), at pp. 1331–1373. 71 Kristen Carpenter, “Real Property and Peoplehood”, Stanford Environmental Law Journal, Vol. 27 (2008), at pp. 313–395; Kristen Carpenter, Sonia K. Katyal and Angela R. Riley, “In Defense of Property”, Yale Law Journal, Vol. 39, No. 6 (2009), at pp. 1024–1124 72 Arjun Appadurai, ‘Introduction: Commodities and the Politics of Value’, in Arjun Appadurai (ed), The Social Life of Things: Commodities in Cultural Perspective (Cambridge University Press, 1986).

250  Rajshree Chandra of property, albeit a property that protects peoplehood interests. Propositions of “peoplehood”, “human flourishing”,73 distinctions between fungible and market inalienable goods, are propositions that create a place for alternative conception of culturalized, subversive property rights.74 The key assertion here is that collective claims of stewardship or custodianship by communities of certain lands and resources ought to be protected through culturally varied, non-proprietary ownership regimes that contribute to the flourishing and protection of community interests. Lack of formal ownership should not preclude claims of land/ cultural property rights. As Carpenter, Riley, and Katyal, persuasively argue: “In many such cases, the custody of such items may in fact be situated in the fiduciary

73 See Margaret J. Radin, Contested Commodities (Harvard University Press, 1996) 35; Margaret Radin and Madhavi Sunder, ‘The Subject and Object of Commodification. Rethinking Commodification: Cases and Readings’ in Martha M. Ertman and Joan C. Williams (eds), Law & Culture (New York University Press, 2005) 7 (The frame of “peoplehood” marks an important shift from the anti-property positions which are based on an individuated idea of property – the latter is based on fears of corruptive influence of commodification and tends to invoke a rhetorical binary between two essentialist tropes – the “enclosure” on the one hand and the “commons” on the other. They tend to view culture and commodities in opposition, “with culture as a differentiating impulse and commodification as a homogenizing one”); Arjun Appadurai, ‘Introduction: Commodities and the Politics of Value’, in Arjun Appadurai (ed), The Social Life of Things: Commodities in Cultural Perspective (Cambridge University Press, 1986) 13. According to Arjun Appadurai, anti-property positions “parody both poles and reduce human diversities artificially”. Appadurai cautions us by suggesting that ‘enclaving’ cultural resources and controlling culture through select guardians of culture, favours the powerful members of society. Like commodification, therefore, an explicit, non-exceptional commitment to non-commodification can place indigenous peoples and their unprotected commons in peril. In a similar vein, Radin and Sunder state that such a polarising polemic “evokes a deep tension between meaning and markets”. Critics state that placing cultural commodities outside the market by declaring them sacrosanct can also impede cultural evolution. The key question then is: How are we to regard the fundamental oppositions between the homogenising and conflating impulse of property and between the heterogeneous, differentiating impulse of culture? 74 The frame of subversive property is distinct from, as I argue elsewhere, from the antiproperty positions – latter based on fears of corruptive influence of commodification and tend to invoke a rhetorical binary between two essentialist tropes – the ‘enclosure’ on the one hand and the commons on the other. They tend to view culture and commodities in opposition, “with culture as a differentiating impulse and commodification as a homogenizing one” (Radin and Sunder 2005). According to Arjun Appadurai (1986: 13), anti-property positions “parody both poles and reduce human diversities artificially.” In a similar vein, Radin states that such a polarizing polemic “evokes a deep tension between meaning and markets” (Radin and Sunder 2005: 7). Critics state that placing cultural commodities outside the market by declaring them sacrosanct can also impede cultural evolution. Appadurai (1986) cautions us by suggesting that “enclaving” cultural resources and controlling culture through select guardians of culture, favours the powerful members of society. Like commodification, therefore, an explicit, non-exceptional commitment to non-commodification can place indigenous peoples and their unprotected commons in peril. The key question then is: how are we to regard the fundamental oppositions between the homogenizing and conflating impulse of property and between the heterogeneous, differentiating impulse of culture?

India’s Forest Rights Act 251 obligations of a collective ‘people,’ rather than rooted in the claims of individual ownership”.75 In other words, historical fiduciary obligations of a community towards certain lands, waters, and sacred sites entitle them to cultural property rights. Granting communities rights of use and possession over land is jurisdictionally a more solid proposition than granting them indeterminate cultural rights over knowledge, religious practices, and so on. As Shane Green suggests, territoriality should be considered a more fundamental, and likewise more universal concern as indigenous peoples build institutions to define and represent their interests in confrontational historical situations.76 Territorial rights have a determinacy on which can be predicated the more indeterminate and fluid categories of traditional resource and knowledge rights. It would grant communities an agency that could promote a productive political confrontation with the state. In the absence of rights to territory, claim for rights to forests, rivers, biotic commons is always manifest with possibilities of unstable contractual valuations. Robert Sack quite brilliantly sums it up when he says that territoriality, or having a place as I call it, provides a means for reifying power. Land, forests, mountains are more tangible than culture, knowledge, religion, etc. “It is a more effective means of establishing agency and control if the distribution in space and time of resources or things to be controlled fall somewhere in between ubiquity and unpredictability”.77

Conclusion The chapter began with the proposition that the human rights framework is structurally ambivalent, which makes associated legal doctrines indeterminate and open to alternate significations. It means that basic notions such as property, contract, rights, freedom, democracy, and so on can have alternative institutional embodiments. Such a reading opens up the possibility of a theory for “subversive property” that can locate itself among alternative social or institutional ideals, beyond the internal necessity of rules underwritten by prevalent jurisprudence or dominant discourse. In most jurisdictional encounters – between community claims and individualized-corporatized claims over land and/or valuable natural resources – communities find it difficult to fulfil the conditions of a propertied subject. Rights’ language, even in its collective avatar, embodies the intuition that every

75 Kristen Carpenter, Sonia K. Katyal and Angela R. Riley, Yale Law Journal, Vol. 39, No. 6 (2009), at pp. 1088–1089. 76 Shane Green, ‘Intellectual Property, Resources or Territory?: Reframing the Debate Over Indigenous Rights, Traditional Knowledge, and Pharmaceutical Bioprospection’ in Mark Bradley and Patrice Petro (eds), Truth Claims: Representation and Human Rights (Rutgers University Press, 2002) 259–260. 77 Robert D. Sack, “Human Territoriality: A Theory”, Annals of the Association of American Geographers, Vol. 73, No. 1 (March 1983), 55–74.

252  Rajshree Chandra individual has an equal moral worth and remains the primary locus of property rights, even in cases where they accrue to her as a member of a group. Rights can accrue only to individuals, or to collective entities that ‘behave’ like individuals. Assumptions of authorial identity, representation, divisibility, and market alienability are prerequisites of property rights’ constructions. Thus, it is mostly through a manoeuvre of framing a collective in the terms and image of an individual, that collective rights find their juridical articulation. One has only to look at the texts of UDHR, UNDRIP, UNESCR, FAO, CBD, to understand how an “invisible asterisk” accompanies the articulation of indigeniety.78 “An invisible asterisk, a proviso, hovers above every enunciation of indigenous customary law: ‘(provided [they] are not so repugnant)’.”79 What the Forest Rights Act does is to erase this asterisk and remove the repugnancy clause. All three strands that I have picked up in the chapter draw from a perspective that views property as a relationship of belonging to a geo-cultural space, and that views property law has having the potential to be anti-essentialist and admit claims that are not defined by their possessive character. The meaning of property is therefore not fixed or essential, but spatially contingent. This spatialized understand of property opens up an alternative political agenda for property: one that is not (re)productive of status quo but has a potential to be subversive and to “right” indigeneity. The promise of the FRA law lies in acknowledging that landscapes are not merely material or ideological. They are both. By putting indigeneity in its “place”, the FRA enables the restoration of not just the land or the forest but also a whole hosts of meanings and an entire ecology of belonging and occupation. Till the legislation is not rolled back, till the asterisk is not refixed with a repugnancy clause, the forest rights can hold up as a genre of legal innovation that seeks to expand the practice of law to become more cognisant of community claims and conceptions of belonging.

78 Elizabeth Povinelli, The Cunning of Recognition (Durham, NC: Duke University Press, 2002), 176. 79 Ibid.

11 The human right to water A testing ground for neoliberal policies Philippe Cullet

Introduction The fundamental right to water was recognised by the higher judiciary in the early 1990s. In effect, this was an early recognition by international standards since debates around the recognition of the right to water in international law started in earnest in the last few years of the century.1 Yet, while the early recognition of the right was progressive, the necessary legal framework to make its realisation a reality for everyone is yet to be effectively developed or amended in view of the formal recognition of the right. The discrepancy between the clear recognition of the right and the missing framework for its realisation has opened the door to different influences on the way the right has been implemented over time. Firstly, in a context of missing legal norms for a right that cannot be ignored by any elected government, the executive progressively increased its reliance on administrative directions to ensure progress in terms of water provision, in particular in rural areas. Secondly, the recognition of the right by the higher judiciary happened to coincide with an era of intense water policy activity at the international level seeking to turn water into an economic good, thereby directly and indirectly opening the door to various forms of privatisation. One of the crucial elements of these international water policy reforms is that they have been enshrined mostly in soft law instruments. The result has thus been that it is a combination of non-binding instruments at the national and international levels that have had the greatest influence on the ways in which the right has been realised in the past couple of decades. Controversies linked to the place and role of the private sector in domestic water supply arise for a variety of reasons.2 A central issue is whether there is opposition between the recognition of a fundamental right and its delivery

1 E.g. P.H. Gleick, ‘The Human Right to Water’, 1/5 Water Policy 487, 488 (1999) stating that ‘[t]his paper argues that access to a basic water requirement is a fundamental human right’ (emphasis added). 2 Domestic water includes water for drinking, cooking, bathing, hygiene, and sanitation and may also include some livelihood uses.

254  Philippe Cullet through private sector actors.3 In general terms, this has been largely answered in the negative by international human rights bodies.4 Yet, this does not address all the questions that arise in practice at the local or national level. In general, the presence of private sector actors is not necessarily unknown in the realisation of various fundamental rights. At the same time, in the context of water, private sector actors generally participate only in certain specific tasks that are seen as being commercially viable. This typically does not include laying down the massive infrastructure necessary to provide individual piped connections. Yet, since this is one of the easiest ways to charge water users, piped metered individual connections are seen as a desirable asset by private sector actors. There is thus a basic unresolved dichotomy which sees the realisation of the fundamental right being dependent on massive state infrastructure investments that may be handed over to the private sector for management. The twin push for the recognition of water as a human right and as an economic good has led policy-makers to make ‘access’ and ‘affordability’ the concepts around which the definition of the right hinges.5 Whereas the human right to water may be a right to the provision of water, as specifically recognised for instance by the high court of Kerala a decade ago,6 the international mainstream understanding of the right to water has been restricted to a right of access, as confirmed by specific mentions of the term ‘access’ in constitutional recognition in such varied countries as South Africa and Uruguay.7 Similarly, whereas the core content of various fundamental rights have been provided free, policy debates around the right to water have strongly emphasised the notion of affordability and the rejection of the idea that the recognition of the right may be linked to a right to free water.8 The reason why the qualifications attached to the right to water matter is nowhere better illustrated than in the Dublin Statement of 1992 that specifically subordinated the right to water to the recognition of water as an economic good.9

3 Cf. Farhana Sultana & Alex Loftus, ‘The Right to Water: Possibilities and Prospects’, in Farhana Sultana & Alex Loftus, eds., The Right to Water: Politics, Governance and Social Struggles (Abingdon: Earthscan, 2012), 1, 3. 4 E.g. UN Human Rights Council, Human Rights and Access to Safe Drinking Water and Sanitation, Resolution 15/9, UN Doc. A/HRC/RES/15/9 (2010), para. 7. 5 E.g. Sustainable Development Goal 6.1, in United Nations General Assembly Resolution 70/1, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (2015). 6 Vishala Kochi Kudivella Samarkshana Samithi v. State of Kerala 2006 (1) KLT 919 (High Court of Kerala, 2006). 7 South Africa – Constitution, 1996, s 27 and Constitution of the Oriental Republic of Uruguay, 1967/2004, art 47. 8 General Comment 15: The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), Committee on Economic, Social and Cultural Rights, UN Doc. E/C.12/2002/11 (2002). 9 Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment, Dublin, 31 January 1992.

The human right to water 255 This could be dismissed as an aberration but the overwhelming influence of the Dublin Statement on water policy in the past twenty-five years has progressively led to a de facto attempt to reconcile the two, without always clearly enshrining the primacy of the fundamental right claim. The problem is that instruments like the National Water Policy, 2012, neither discuss nor engage with the right to water. This has led to a situation where lawyers and human rights practitioners understand that there is a fundamental right to water that prevails over other conceptions of water while water practitioners generally understand water as an economic good within which context a priority is given to domestic water.10 This chapter starts by examining the recognition of the right in India and the various ways in which it has been partly realised through legal instruments that do not refer to the right. The next section then examines the challenges that arise in a context of evolving water policy and the push for privatisation. This examines the way in which the push for commodification has altered our understanding of the right to water and discusses some of the issues arising in this regard, such as the push for affordability and efficiency as markers of a good water policy. The third section then looks at some dimensions of the right that need to be addressed to ensure that it does not remain subservient to economic understandings of water. The focus is on the need to end disconnections, in particular automated disconnections, the need to realise the core content of the right through provision of free water and the need to rethink the content of the right in light of new thinking around water as a shared substance, based on the need to recognise it as common heritage and the need to manage it based on the principle of subsidiarity.

Right to water – recognition and implementation The drafters of the Constitution of India did not specifically mention the right to water in the catalogue of fundamental rights. Yet, the judiciary has repeatedly confirmed its existence.11 The right is thus well entrenched. In addition, a number of states have adopted legislation that provides a general context for the realisation of the right. Further, policy instruments adopted by the Union Government have also made an important contribution towards the realisation of the right in rural areas.12 Yet, at this juncture, there are real challenges concerning the right to water’s content and realisation. Indeed, while courts have clearly confirmed the existence of the right, they have not provided much elaboration concerning its

10 E.g. National Water Policy, 2012, s 1.3. 11 E.g. Subhash Kumar v State of Bihar AIR 1991 SC 420 (Supreme Court of India, 1991) and FK Hussain v Union of India AIR 1990 Ker 321 (High Court of Kerala, 1990). 12 Government of India, Accelerated Rural Water Supply Programme Guidelines (1999–2000) and Ministry of Drinking Water and Sanitation, National Rural Drinking Water Programme – Movement Towards Ensuring People’s Drinking Water Security in Rural India (2013) [hereafter NRDWP 2013].

256  Philippe Cullet content. This is in a sense appropriate since this is not the courts’ responsibility. Statutory instruments include various provisions that contribute to the realisation of the right in practice. At the same time, there is no law that specifically refers to the right to water as a basis for the regulatory measures adopted, for instance, concerning domestic water supply. In the case of administrative directions, when reference to the right was introduced in the National Rural Drinking Water Programme, they were quickly expunged in the next version of the policy instruments.13 In general terms, the right that is recognised is directly linked to the uses of water necessary for a life of dignity since it is a conceptual extension of the right to life.14 Courts have also specifically mentioned duties of state provision while confirming that domestic water supply is one of the basic functions giving governments legitimacy in the eye of the people.15 In addition, the right that courts have recognised is a universal right and generally covers domestic water needs. There is little additional specificity provided by the courts or legislation. With regard to quality, it can be inferred that water must be safe according to extant quality standards. However, since no legislation directly makes the link between water quality standards and the right to water, this remains to be more formally stated. With regard to quantity, debates have taken place nearly entirely in the context of policy documents and administrative directions. An absolute minimum of 40 litres per capita per day (lpcd) can be identified as the floor against which the realisation of the right would be measured.16 Yet, there are different standards for rural and urban areas and standards have evolved over time, with the aspiration for rural areas being now 70 lpcd.17 On the whole, different elements of the content of the right can be inferred from court decisions, legislation, administrative directions and practice at the local level but this does not amount to a clear universal framework for the realisation of the right to water. This unfortunately leads to unwelcome outcomes, as reflected in a pronouncement on the right to water by the Bombay High Court. In its 2014 order in Pani Haq, it confirmed the existence of the right to water but then went on to direct that the right can be realised differently for different groups of people, in this case based on the legal status of their dwelling.18 The court came up with the bizarre conclusion that the legality of one’s housing should affect the level of

13 Department of Drinking Water Supply, National Rural Drinking Water Programme – Movement Towards Ensuring People’s Drinking Water Security in Rural India (2009) s12(1) and the next version published in 2010. 14 Most of the judicial decisions concerning the right to water use as a starting point the right to life. 15 Vishala Kochi Kudivella Samarkshana Samithi v. State of Kerala 2006 (1) KLT 919 (High Court of Kerala, 2006). 16 Government of India, Accelerated Rural Water Supply Programme Guidelines. 17 NRDWP 2013 (n 12) Annexure 1. 18 Pani Haq Samiti v. Brihan Mumbai Municipal Corporation, Public Interest Litigation No 10 of 2012, High Court of Judicature at Bombay, 15 December 2014.

The human right to water 257 the realisation of the right to water even though it did recognise that everyone is entitled to the right to water. As a result, occupants of slums ‘cannot claim a right to supply drinking water on par with a right of a law abiding citizen’.19 The Court was happy to condone differential pricing of water, with residents of the slums (in principle much poorer than people living in planned colonies) paying ‘a higher rate than the rate which is charged for water supply to the authorized constructions’.20 On the whole, the different contributions made by different arms of the state to the development and implementation of the human right to water are significant. Yet, they are also limited and insufficient. The courts’ strictures are neither uniform nor sufficiently specific to bring relief on the ground, existing legislation does not actually focus on the realisation of the human right though it may indirectly contribute to its implementation and the executive’s administrative directions are not long-term markers of the content of the right since they can, and do, change regularly.

Realising the right to water in a context of evolving water policy The formal recognition of the right to water did not signal the start of concerns for domestic water supply since this had been a central policy concern of governments for decades. At the same time, recognition took place alongside sweeping water sector reforms that have sought to change the nature of water from a shared substance to an economic good that can be traded like any commodity. Efforts have been made to try and reconcile the two developments but this can only be done up to a certain extent since a fundamental right does not lend itself well to the kind of understandings promoted in water sector reforms.

Privatisation and the realisation of the right to water The recognition of the right to water is largely contemporaneous with the push for the recognition of water as an economic good, itself linked to the participation of the private sector in water services. The end of the Cold War was marked by a strong acceleration of the push for the commodification of new resources. At the international level, the Dublin Statement, 1992 marks a turning point in specifically calling for water to be recognised as an economic good. This happened at the very same time as the privatisation and liberalisation reforms were unleashed after the 1991 financial crisis.21

19 Ibid., para. 21. 20 Ibid. 21 E.g. Editorial, ‘Manmohan Singh’s 1991 Budget: The Day that Changed India Forever’, The Hindu, 24 July 2016, www.thehindu.com/business/Economy/Manmohan-Singhs1991-Budget-the-day-that-changed-India-forever/article14505003.ece.

258  Philippe Cullet This corresponds with a period of expansion of human rights. At the international level, the move towards recognising all rights as human rights was cemented at the 1993 World Conference on Human Rights.22 At the national level, this is a period where the higher judiciary read into the right to life several rights, including the right to water. The recognition of the right to water thus intervenes at the very point at which private enterprises are looking for new economic opportunities in a changing economic scenario. The central role of water for survival, livelihoods and economic development ensures that a great deal of private interest has been given to water. This has influenced directly and indirectly the manner in which measures have been taken to realise the right to water. The 1990s were a period of significant policy change. An important development with respect to domestic water supply was the adoption of the constitutional mandate for decentralisation.23 This led to attempts at strengthening local bodies with regard to domestic water supply. However, this took place in a context of overall reform whereby the state was seeking to withdraw from provision of welfare entitlements. There was thus limited appetite for providing significant new resources to local bodies to ensure they could take the decentralisation mandate forward. As a result, there has been increasing recourse to private sector actors to fill the gaps. Participation of private sector actors, such as contractors used for specific tasks within the broader drinking water supply sector, is not a particularly new phenomenon. Yet, economic reforms seeking much more drastic privatisation, including complete privatisation of water utilities, constituted a new challenge. Indeed, while the local laws predating the recognition of the right to water were not specific and could accommodate either public or private operations, privatisation of water services went against the government’s own longstanding supplyled policies and against long-held understanding of water as a public resource. The push for privatisation of water services thus challenges older understandings of water and puts pressure on actors seeking to implement the right to water to do so in a specific manner condoning private sector participation. This brings the question of the extent to which the state can relinquish certain functions related to water supply that were traditionally seen as part of its obligatory duties, duties that have in principle been strengthened by the recognition of the right to water, whose duty bearer is the state. The mainstream policy consensus has increasingly been that it does not matter whether the state or non-governmental actors deliver domestic water to rights holders as long as the state remains accountable as a measure of last resort.24

22 Vienna Declaration and Programme of Action, World Conference on Human Rights in Vienna, 25 June 1993. 23 Constitution of India, 73rd and 74th amendments. 24 E.g. UN Human Rights Council Resolution 15/9 (2010), Human Rights and Access to Safe Drinking Water and Sanitation, 30 September 2010, UN Doc A/HRC/RES/15/9.

The human right to water 259 This remains insufficient conceptually since there are various types of nongovernmental actors and it should be for the state to determine which non-state actors can best deliver welfare entitlements. For-profit companies should be last in line because there is an inherent ethical conflict between profit and realisation of fundamental rights. In between, a variety of different actors including nongovernmental organisations and social enterprises have the potential to fill some of the gaps. However, this must still fall under the guidance of the state that is alone able to give welfare interventions the long-term stability they need and that is the only one to have the broad view allowing it to target preferentially the most disadvantaged. Further, for-profit enterprises will only get involved in profitable activities. This drastically limits the scope for privatisation. Indeed, as has been amply demonstrated over decades,25 this does not include the laying of the whole network of pipes to individual houses that will ensure access to water. As a result, private sector management can be an attractive business proposition where the pipes are already laid, as was the case in England and Wales in the late twentieth century, but this is not the case in areas of Indian cities where pipes have not been laid yet. What this dichotomy illustrates is the fact that the domestic water supply is only attractive to private sector actors if it is boxed in a particular form and context.

Divergent trends: public trust and commodification Control over water has been subject to multiple influences that are partly contradictory. This is not new but has become much more visible and significant in the past few decades. On the one hand, access to water has for long been linked to land rights, giving landowners preferential access to surface and groundwater. On the other hand, water has historically been understood as a common substance that is so vital to humankind and life on earth that it cannot be treated like other natural resources. The push for commodification and privatisation of water led to new conflicts. In a context where existing arrangements were being put to the test by increasing private claims, the Supreme Court, following developments in other countries, formally recognised water as a public trust in the mid-1990s.26 This has significant implications for the way water is conceived in its different forms and uses. In the first case where the doctrine of public trust was extended to water, the Court concluded that where the public trust applies, such resources are meant for public use and cannot be converted into private ownership.27 In other words,

25 E.g. C. Ward, Reflected in Water – A Crisis of Social Responsibility (London: Cassell, 1996), 96 and Helen Ingram, John M. Whiteley & Richard Perry, ‘The Importance of Equity and the Limits of Efficiency in Water Resources’, in John M. Whiteley, Helen Ingram & Richard Perry, eds., Water, Place, and Equity (Cambridge, MA: MIT Press, 2008), 1, 7. 26 MC Mehta v. Kamal Nath (1997) 1 SCC 388 (Supreme Court of India, 13 December 1996). 27 Ibid., para. 34.

260  Philippe Cullet the public trust severs the link with traditional property rights since the trustee can neither alienate the trust nor fundamentally change its nature. It rather has a fiduciary duty of care and responsibility to the general public.28 This has proved to be a difficult position to maintain over time as private interests have vied to undermine the recognition of the new status of water.29 Further, no statute has been amended to reflect the new thinking. This has essentially meant that the recognition of water as a shared substance has made little difference on the ground. At the same time, there have been further developments in terms of appropriation of water by private actors. The entry point for this was laid long ago since the link between land and water rights had already brought water within the scope of economic assets. Yet, this was constrained by two factors. Firstly, the recognition of water rights to landowners came within a broader understanding of the special life-giving nature of water prohibiting its ownership by anyone. This led to the construction of water rights being usufructuary rights as far as surface water was concerned and to a right akin to ownership for groundwater. Secondly, water rights were dependent on the rights in the land and could not be dissociated from the latter. This was due in large part to the understanding that the productivity of the land seen primarily as a source of agricultural crops was dependent on the availability of water. Moving towards full commodification of water is thus in a way a logical step since water was already partly considered from within the context of property rights. At the same time, it goes against the understanding of water as held and regulated by communities and against the idea that existing property rights were subordinate to the broader ideal and understanding of water as a shared resource. In short, developments over the past few decades have completely changed the understanding of water and consequently manner of approaching rights to water. Commodification of water gives it a singularity it has never had before. It brings together all water sources and water uses to a single meeting point that sees it as an economic asset that can be traded like any other good. Commodification is necessary for the entry of private sector actors in the water sector since there can be no profit-making on the basis of a universally shared resource. However, this shows that the visible conflicts that arise in terms of ‘privatisation’ of water, in particular at the point of the privatisation of water supply services, only constitute a manifestation of a potentially much broader phenomenon. Interestingly, the most visible and often most controversial aspect of privatisation has been where urban water supply is handed over in part for management to a private company.30 The visibility arises from the fact that the company ends

28 E.g. David Takacs, ‘The Public Trust Doctrine, Environmental Human Rights, and the Future of Private Property’, 16 New York University Environmental Law Journal 711 (2008). 29 Mrs Susetha v. State of Tamil Nadu AIR 2006 SC 2893 (Supreme Court of India, 8 August 2006), para. 9. 30 Naren Prasad, ‘Privatisation of Water: A Historical Perspective’, 3/2 Law, Environment and Development Journal 217 (2007).

The human right to water 261 up dealing directly with water users but in most cases, what is privatised is not the water but specific services provided by the company.

Efficiency in addition or instead of equity Discussions around the private sector’s role in the provision of domestic water revolve around the failures of the state in ‘efficiently’ managing water as a resource and the infrastructure that is used to supply it to users.31 Efficiency has indeed been a central term of art in water policy for the past few decades and has provided a justification for progressively side-lining the state in the provision of water services since a welfare state is not set up to achieve economic efficiency but social justice. This should not come as a surprise since social entitlements should not be provided on basis of efficiency. This is the reason why efficiency is still usually associated with equity: since it is widely understood that water being so basic to life, it can never be managed exclusively on a basis of efficiency. The problem that arises is that equity has progressively become little more than a mantra that has limited or no impact on the ground. In other words, while the policy discourse still tends to consistently invoke equity next to efficiency,32 the former has been increasingly side-lined. As a result, access to water is increasingly mediated through pricing justified on the basis of the need to recover costs of investments made. Pricing is a difficult concept to apply since cost recovery is in most cases an inexact approximation of costs engaged, as is the case in all situations where the cost of providing bulk water for distribution to households within a given city is not built into the costs because it is in most cases the state that has invested in such large-scale infrastructure. As a result, the very idea of full cost recovery remains at best something desired by policy makers that has no relevance on the ground since individual users cannot and will not be able to bear such costs. Efficiency is usually called for on the understanding that there is global water scarcity. While social and economic water scarcity is indeed one of the defining features of our age, it is unclear that physical water scarcity should be the primary inspiration for policy-making in the water sector. Firstly, scarcity is not the prevailing issue in all parts of the country with some regions more concerned by floods than scarcity. Secondly, global water scarcity is a useful starting point to take into account the fact that ever-growing water use in a context of increasingly erratic rainfall due to global environmental change must be addressed immediately and earnestly. At the same time, efficiency is based on the understanding of an environmental crisis (water scarcity) but the answer (cost recovery, pricing, etc.) is devoid of environmental content. Thirdly, domestic water uses less than 10 per cent of available water. There is thus no physical scarcity for domestic water and the real issue is one of allocation to different uses.

31 Dublin Statement, note 9. 32 E.g. United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 153 (New York: UNDP, 2006).

262  Philippe Cullet The paradox of the law and policy framework governing the water sector is to be at the same time based on an understanding of the importance of water as a common resource needed by all while neither emphasising equity in use nor emphasising conservation per se. In fact, the market mechanisms that are put in place under the guise of efficiency do not necessarily lead to lower water use but nearly invariably lead to reallocation of water from certain users to others. This is, for instance, the case with tradable water entitlements that are introduced in the name of increasing the efficiency of water use. This is achieved by breaking the century-old bond between water and land by allowing water to be sold separately from the underlying land.33 This provides a basis for transfers of water use from agriculture to other uses but neither addresses the underlying question of scarcity nor addresses the consequences of depriving the land from its access to water in terms of its own productive use, for instance, to produce food crops.

Access at an affordable price and the push for privatisation The framing of the right to water as a right to access water at an affordable price has been the hallmark of policy developments since the 1990s. In principle, the language of access is meant to be neutral and this is how it has been portrayed. Yet, it is remarkable in a fundamental rights context since no other right has been qualified in this way so systematically. Indeed, the rights to food and health are not seen as rights to access food or health. Introducing access is thus significant and must be opposed to ‘provision’ that signals a much stronger duty of the state as the duty holder to provide for the realisation of fundamental rights. The focus on access is thus directly related to the idea that the state should act as a facilitator rather than as a provider, the gap between the two having to be filled by other non-governmental actors. In this sense, speaking of access is directly linked to forms of privatisation.34 In policy terms, this is framed as a move from supply-led to demand-led interventions.35 By ‘demanding’ new infrastructure, rights holders are deemed to be participating in the process leading to a sense of ownership over the said infrastructure. The quid pro quo is that to instil this sense of ownership, water users are made to pay varying percentages of the cost of building and/or running the water supply system.36 The result is that rights holders will only demand something they can afford. The novelty and controversial nature of the shift in the state’s role in the realisation of fundamental rights led one of the key architects of General Comment 15 to indicate that privatisation was for the CESCR a political question that they left open, and they ‘took a neutral stance on whether private sector involvement

33 E.g. Maharashtra Water Resources Regulatory Authority Act, 2005, s 11(i)(i). 34 Cf Heloise Weber, ‘When Goals Collide: Politics of the MDGs and the Post-2015 Sustainable Development Goals Agenda’, 34/2 SAIS Review of International Affairs 129, 131 (2014). 35 Ministry of Rural Development, Guidelines on Swajaldhara, 2002, preface. 36 Planning Commission, Report of Working Group on Tenth Plan for Drinking Water Supply and Sanitation 2002–07, 4.

The human right to water 263 was ultimately good or bad’.37 Where access is linked to affordability as is the case in General Comment 15, this implies that rights holders are called upon paying for accessing water. One of the central questions that arise at this juncture is that of the ability of rights holders to pay. However, the language that has been used for a number of years is that of ‘willingness to pay’, a concept that does not particularly consider whether people are able to pay or whether paying implies reallocating resources from other unavoidable expenses, such as food or health. One of the most striking elements of the debate over affordability is that there has been increasing emphasis on the inevitability of pricing. Thus, one of the early policy statements on water sector reforms specifically stated that there ‘must be widespread promotion of the fact that safe water is not a free good’.38 This is linked to the emphasis on full cost recovery, a notion introduced in water sector reforms in general and specifically concerning domestic water, for instance, in the context of the Swajal project from 1996 onwards.39 In a human rights context, the increasing prominence of pricing can also be linked to the fact that it has often been found not to be conflicting with a human rights perspective.40 This perspective is reflected in the UN Special Rapporteur’s statement that ‘a human rights framework does not require that water and sanitation services be provided free of charge’.41 Yet, the fact that pricing may not be incompatible with a human rights perspective does not indicate whether this is the best strategy for realising it for all. In addition, it is unclear that pricing is the best instrument to achieve the goals it sets for itself in the water context. Thus, higher pricing as a mechanism to force users to understand the ‘real value’ of water may fail to work in equity terms, in situations where higher rates do not translate into lower demand by affluent customers.42

Beyond privatisation – reclaiming the right to water for all The right to water has been at the centre of a massive experiment whereby the formalisation of a right has been linked to policies of commodification and

37 E Riedel, ‘The Human Right to Water and General Comment No.15 of the CESCR’, in E. Riedel & P. Rothen, eds., The Human Right to Water (Berlin: Berliner Wissenschafts-Verlag, 2006), 19, 29. See also S.C. McCaffrey, ‘The Human Right to Water’, in E. Brown Weiss, L. Boisson de Chazournes & N. Bernasconi-Osterwalder, eds., Fresh Water and International Economic Law (Oxford: Oxford University Press, 2005), 93, 105. 38 New Delhi Statement, Global Consultation on Safe Water and Sanitation for the 1990s, UN Doc. A/C.2/45/3 (1990), principle 4. 39 World Bank, Implementation Completion Report – Uttar Pradesh and Uttaranchal Rural Water Supply and Environmental Sanitation (Swajal) Project (Report No. 27288, 2003). 40 E.g. P. Sangameswaran, Review of Right to Water: Human Rights, State Legislation, and Civil Society Initiatives in India (Bangalore: Centre for Interdisciplinary Studies in Environment & Development, Technical Report, 2007), 30. 41 Report of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, UN Doc. A/66/255 (2011), para. 19. 42 Sangameswaran (n 40 above) 31.

264  Philippe Cullet privatisation of water. While the involvement of private actors in the realisation of fundamental rights is nothing new, what has characterised the right to water in recent years is the pointed attempts made to link the recognition of the right to a new framework wherein the state is specifically limited to a role of facilitation, as opposed to rights recognised earlier that were premised on the idea of the state as the only duty holder. The pendulum has moved fast and several aspects need to be addressed to ensure that the recognition of the right has positive impacts for everyone, and in particular the most disadvantaged. This section examines several issues that need to be addressed. These include the question of disconnections, universal provision and free water, gaps in the legal framework and the need to link water justice to the right to water.

Banning disconnections and discrimination in supply of domestic water Disconnection of domestic water was until recently an issue that arose mostly in the context of individual piped water supply. The possibility to disconnect is not new since local laws have provided for this for decades. At the same time, questions arise as to whether disconnections can be justified once the right to water has been formally recognised. At the international level, the mainstream consensus is that the only thing that is prohibited by the right to water is arbitrary disconnections.43 In a bid to take into account the fact that any disconnection immediately threatens life, a report of the UN independent expert on the right to water adds that in cases where disconnection is due to inability to pay, ‘individuals must still have at least access to minimum essential levels of water’.44 It is morally questionable whether any disconnection is acceptable. In fact, even in situations where the legal framework provides for the possibility of disconnections as in the case of Delhi, officials tend to acknowledge that in practice this outcome is nearly always avoided even if conditions for the same are met because they understand that people cannot live without water.45 In any case, in situations where water is provided through a piped water network, disconnections tend to follow a set procedure that will see domestic water users be warned that they are in arrears before moving on to more serious consequences, with at each stage the possibility for the user to intervene to try and stop the process if needed or to pay their arrears.46 In recent years, a new and even more controversial form of disconnection has emerged in the context of new forms of water supply through so-called water

43 General Comment 15 (n 8) para. 10. 44 UN Human Rights Council, Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, UN Doc. A/ HRC/15/31 (2010), para. 48. 45 Personal communications with Delhi Jal Board staff members. 46 E.g. Uttar Pradesh Water Supply and Sewerage Act, 1975, s 72.

The human right to water 265 ATMs. These are water dispensers often accessed through a prepaid card. The analogy with bank cards is what explains the use of the term ATM. This is fitting in the sense that water ATMs reflect the understanding of water as an economic good. These water ATMs may be installed in a variety of places, including in localities where domestic water supply is insufficient. The usual model is one of a filtering unit that is used to provide water to one or a series of local dispensers where users can access water by paying a per litre charge. These initiatives are important because they bypass the need for heavy infrastructure and can provide access to safe water where there has been none. At the same time, they do not necessarily provide an appropriate framework for the realisation of the right to water. Several issues may arise. Firstly, the entity running the water ATM usually does not take responsibility for providing water but rather sees its mission as a benefit provided to society. Secondly, it is not always clear which water quality standards are followed, who is in charge of monitoring water quality and what consequences are or can be applied in case standards are breached. At present, water ATMs seem to have the public’s trust on the understanding that filtered water is by definition better than unfiltered water but this is no substitute for binding quality standards. Thirdly, water ATMs raise significant concerns because these systems are based on pre-payment, implying that no water will be dispensed to anyone whose credit has run out. In effect, there is no procedure preceding the disconnection and where individuals cannot afford to recharge their card when credit runs out, the disconnection is immediate. The introduction of water ATMs as an alternative source of domestic water supply raises discrimination concerns in terms of disconnections. This is due to the fact that procedural guarantees that apply to users benefitting from piped water supply do not apply here. Overall, water ATMs highlight some unfortunate developments. On the one hand, the recognition of the fundamental right to water is regularly reconfirmed and increasing attention has been given to fostering supply of safe domestic water. On the other hand, some of the interventions deployed to foster access to safe domestic water undermine some aspects of the right to water while contributing to its realisation in part. This is, however, not a situation where to do a great right, a little wrong can be condoned. Fundamental rights are structured around the idea that their minimum level of realisation should be similar for everyone. This does not provide space for initiatives like water ATMs, especially as long as they are not regulated like other water providers. The fact that many of these schemes are corporate social responsibility initiatives whereby the private sector makes some contribution to social welfare is not sufficient to allow them not to follow the same norms that water utilities need to comply with.

Ensuring universality of free provision The provision of free water as part of the realisation of the right to water has been much more controversial than in the case of other fundamental rights. This is again due to the fact that the recognition of the right has coincided with the

266  Philippe Cullet push towards commodification and privatisation. At the outset, the rejection of free water is surprising because this is what the government had been implementing for decades in rural areas in the context of the ARWSP. Free provision was undertaken much before the courts intervened and formally recognised the fundamental right to water. This was not only uncontroversial but seen as a duty of the government. The distrust for providing free water as part of the realisation of the right to water cannot be ascribed to the fact that it was deemed impractical since it was already being implemented. It can also not be ascribed to a conceptual contradiction in terms of fundamental rights since other rights are realised through state provision in part or fully.47 The real reason is thus the change of economic policy in the 1990s that came loaded with an understanding of the state as having failed to deliver, as being incapable of being reformed and thus having to take a back seat in the provision of welfare. The gap created is filled by the private sector but this can only be achieved by changing people’s perception that water is a shared substance and that domestic water, or the infrastructure to access it, is something that is provide free. This translates into a push for pricing water for all users. The rationale given is linked to water scarcity, which is used to explain that people need to be taught efficiency of use through pricing since they otherwise tend to waste water. It is ironical that this argument was made in a country where hundreds of millions of people do not have access to water within their household and for whom every litre of domestic water used involves the effort (overwhelmingly borne by women) of bringing it home from somewhere else. There are various reasons why water needs to remain free for everyone. Firstly, the right to water is a universal right and everyone has an entitlement to a minimum quantity of water to live a life of dignity. This is what the Delhi Government free water policy does admirably by not limiting its ambition to an amount of water necessary to meet survival needs but an amount that ensures a decent dignified life.48 Secondly, the realisation of the right to water is a duty of the state like for all other fundamental rights. The complication with water is that there is no scope for full privatisation of the delivery of water supply because private sector actors are generally only willing participants for certain specific tasks. These tasks are on the whole limited to the actual distribution of water once the water has been made available in bulk form by the government. Contracts for private water sector delivery tend to give the government a duty to provide bulk water without which the private sector actor is not responsible for non-provision.49 On the

47 E.g. Right of Children to Free and Compulsory Education Act, 2009, s 3. 48 Delhi Jal Board, Notification – Free water supply upto 20 Kl per month to every house hold having domestic water connections including Group Housing Societies, DJB/DOR/ Policy/2014–15 (27 February 2015). 49 E.g. Nagpur Municipal Corporation, 24 x 7 Water Supply Project for Nagpur City – Tender No.: 203/PR/07/08/08 – Volume-II: Part 3 – PPP Contract (Revision-4), 2009, para. 6.5.

The human right to water 267 whole, this is what mainstream policy documents capture under the idea that the ‘the delegation of the delivery of safe drinking water and/or sanitation services to a third party does not exempt the State from its human rights obligations’.50 Thirdly, pricing is a self-contradictory proposition in terms of the right to water. Indeed, no report or policy document ever advocates that people in absolute poverty have the capacity to pay. An exception is often carved out, sometimes framed as a ‘lifeline tariff’,51 a phrase sadly reflecting an understanding that the duty of the government as essentially limited to ensuring survival needs. The idea that an exception can be carved out for the poorest but that on the whole everyone shows ‘willingness to pay’ is an inappropriate starting point for policy measures to realise the right to water.52 On the one hand, any categorisation is problematic because the threshold chosen to distinguish the poor from the rest will always be arbitrary. On the other hand, if a distinction needs to be made and a group singled out, it should be the richest quintile (or any appropriate percentage) whose capacity to pay is unchallenged. In a context where the right is universal and where the majority of people are poor, the starting point should be a policy that provides for everyone, as has been implemented in Delhi since 2015. A campaign against the idea of free provision of water has been unleashed in the context of neoliberal economic reforms that have particularly targeted the water sector. The argument that seems to win people’s hearts is that the scarcity of water calls for everyone to be parsimonious in their water use. This is then coupled with the idea that it is the poor that are dispendious and it is thus appropriate to ask them to pay too.53 Once the idea of pricing is accepted, the recognition of the right to water becomes indirectly an instrument for the expansion of private sector activities in water services. This explains the strength of the campaign against free water that has been unleashed but does not make the argument of free water any weaker. The argument against free water then often runs along the lines that state resources are better spent elsewhere in a context where users (now called consumers) fail to use water sparingly. This point sidelines the fact that the state remains the primary investor in bulk water infrastructure and in laying down costly pipes that provide the basis for individual piped water supply. This expenditure acts as a massive subsidy since water prices would be infinitely higher without this investment. The consensus around pricing for water would immediately disappear if this cost was borne by users. This confirms that every user is quite satisfied to

50 UN Human Rights Council (n 4) at para. 6. 51 E.g. Asian Development Bank, Water for All – The Water Policy of the Asian Development Bank, 2001, para. 46. 52 On willingness to pay, e.g. World Bank, Rural Water Supply in India – Willingness of Households to Pay for Improved Services and Affordability (Policy Paper 44790, 2008) 6. 53 E.g. Wazirpur Bartan Nirmata Sangh v Union of India WP(C) No. 2112/2002 (High Court of Delhi, Judgment of 28 September 2006) recalling a direction to the government ‘to remove all unauthorized structures, jhuggies, place of worship etc. which are polluting the river Yamuna’ (p. 9).

268  Philippe Cullet see their water heavily subsidised and this is indeed something the right to water demands from the state to justify its existence. The actual provision of free water at the level of individual users is only a minor extension of this and presents no conceptual difficulty. The only thing that may need to be debated is the way in which free water policies are implemented so that they cover the needs of life with dignity but not recreational needs, such as filling individual swimming pools. In addition, free provision of the basic content of fundamental rights is nothing unusual. Indeed, other rights have been realised through universal free provision, as in the case of the right to education and components of the right to food like the midday meals. In both cases, the central dimension of the free elements provided is that they are provided universally.

Reclaiming the right to water The formal recognition of the right to water has been one of the major developments in human rights law over the past couple of decades. It signalled the filling of a gap that was glaring and obvious but had not been addressed in the first decades of the development of human rights treaties at the international level or fundamental rights in post–World War II constitutions. Conceptually, this makes a big difference since it turns people often termed ‘beneficiaries’ of water sector interventions, such as providing handpumps in villages, into ‘rights holders’. At the same time, the winds of water commodification led to a focus on water as an economic good and a new understanding of water users as ‘consumers’. Mainstream human rights policy interventions have contributed to shaping the right to water as a neoliberal right through a qualification of the right as a right of ‘access’ to water. In addition, criteria like affordability and the acceptability of disconnections as long as they are not arbitrary have ensured that most people understand the right to water as a right that is more qualified than other fundamental rights. This is not necessarily surprising in a context where water has been the next frontier in terms of appropriation of natural resources and the past couple of decades have seen a very strong push towards opening up new markets in this sector. The right to water needs to be brought back to a place where it is conceived primarily in terms of the entitlements of its rights holders. Firstly, the universal nature of the right needs to be further emphasised to ensure that domestic water policies are not framed around ‘targeting’ the poor or certain classes of disadvantaged people. Secondly, the right needs to be conceived in its individual and collective dimensions. The mainstream understanding of the realisation of the right to water has been increasingly oriented towards individual realisation that translates into calls for individual piped metered water connections. Providing water supply in each home is an essential component of the realisation of the right to water given the importance of water for most domestic activities. At the same time, this does not mean that it needs to be conceived on an individual basis. The sharing can happen at several levels. Pipes could be shared between houses, just like until now for crores of people, sources of water, such as handpumps, are shared.

The human right to water 269 In other words, the disconnect between the recognition of water as a public trust or common heritage and the realisation of the right to water as an individual entitlement linked to the commodification of water needs to be broken. In fact, the right to water constitutes an appropriate starting point for broadening the understanding of rights in a context where the realisation of the right depends not just on actions at the local and national level but also international level. Climate change is increasingly affecting what were earlier understood as relatively stable rainfall patterns. Since rainfall is the main source of water for all human uses, it is inconceivable to link the fundamental right to water to mercantilist perspectives that look at water only from the point of view of water as a finite good whose finiteness provides the basis for allocation to the highest bidder. The realisation of the right to water thus depends on factors that are beyond the control of individual actors and individual states. This is indeed the reason why ownership of water was not condoned for thousands of years in different parts of the world. The recognition and formalisation of the right to water provides an excellent opportunity to build on this understanding of water as something that is too important to allow private appropriation. While current privatisation policies generally prohibit outright ownership of water by private actors, this is only a legal fiction that makes little or no difference to what the ‘consumers’ of these companies experience in practice. The next step needs to be the recognition of water as a common heritage. This brings a novel perspective insofar as it is based on the idea that every user of water has a stake in the conservation, use and benefits derived from its use. This has been used now mostly at the international level to address resources that are not under state sovereignty where cooperation among states is easier to achieve.54 In the case of water, the same idea needs to be introduced from the local to the global level. The second change that needs to be introduced is to reflect the local dimension of water as it is difficult and very expensive to transport it over long distance. This local dimension should be reflected in the introduction of the subsidiarity principle as an organising principle.55 This fits the nature of water that is at the same time extremely local, national and global. Decisions should be taken at the local level because that is often the only level where they can be taken but at the same time, this needs to be done within a context that recognises the multiple layers needed for an overall view of water. Overall, our understanding of the right to water has been overwhelmingly influenced by the strong pull of neoliberal policies that coalesced at around the same time. It is time to rethink the context within which the right is conceived and implemented so that it does not focus on responding to economic policy

54 E.g. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN Doc A/CONF.62/122, part XI. 55 E.g. Draft National Water Framework Bill, 2016, s 18(1).

270  Philippe Cullet choices but is based on the nature of water and the main issues arising in the water context at present.

Conclusion The recognition of the right to water is a significant development. However, despite its potential to change the lives of hundreds of millions of people, dozens of countries refused to vote in favour of a non-binding UN General Assembly resolution recognising the right in 2010.56 At the same time, major water multinational companies already welcomed the right in the early 2000s as long as this was not a right to free water.57 The recognition of a right whose basic component of access to domestic water no one would publicly reject has been made more complex than should have been the case by the fact that this progressive formalisation happened when water was becoming the next big business opportunity. In India, what may have seemed like an obvious recognition of the fundamental right to water by the Supreme Court in the early 1990s was thus immediately complicated by the fact that policies in the water sector were at that very same time moving in a different direction. There have been many attempts to reconcile the right to water with commodification and commercialisation, and the mainstream position is that this has been successfully articulated through the understanding of the right as a qualified right of ‘access’ and strong emphasis on pricing and affordability as elements deemed inseparable of the recognition of the right because of physical water scarcity. The current mainstream framework fails, however, to account for the fact that water has never been a natural resource like others. The push towards privatisation is thus full of contradictions. It largely condones the recognition of the right to water because this ensures that the state gives added priority to building piped networks that are a pre-condition for the involvement of private actors in water services delivery. Similarly, private sector actors thrive on the bulk infrastructure that the state is building to bring more water to cities that increases business opportunities. This additional water is then distributed to ‘consumers’ on the premise of scarcity that justifies a tariff that is ‘affordable’ but ideally as high as is politically acceptable to the government of the day. The realisation of the right to water whose recognition was spearheaded by the higher judiciary has been marred in different ways by the push for commodification and privatisation, spearheaded in part by development agencies, as in the case of the World Bank’s Swajal project whose basic principles became national policy through the Swajaldhara guidelines. In the meantime, the shortcomings of the commodification route have become increasingly apparent. In rural areas,

56 United Nations General Assembly Resolution 64/292, The Human Right to Water and Sanitation, UN Doc. A/RES/64/292 (2010). 57 A.F.S. Russell, ‘Incorporating Social Rights in Development: Transnational Corporations and the Right to Water’, 7/1 International Journal Law in Context 1, 19 (2011).

The human right to water 271 the attempt to impose capital cost recovery on water users was abandoned in 2009 with the introduction of the National Rural Drinking Water Programme. In urban areas, Delhi illustrates the increasing focus put progressively on reclaiming water publicly. The collapse of the privatisation project in 2005 eventually led in 2015 to the introduction of the free water policy that clearly signals to the electorate the state’s resolve in providing water to all and understanding this as one of its primary functions. The next step will be to link such efforts to the right to water to give further coherence to measures that reinforce each other. This must be done within a context that clearly understands water as a shared substance and the policy priorities need to be aligned to the idea that water is a common heritage from the local to the global level whose management should be organised on the principle of subsidiarity.

12 Realising human rights obligations of the World Bank in India A human rights critique of the World Bank Country Partnership Strategy for India (2013–2017) Bhumika Modh and Uma Mahesh Sathyanarayan Introduction The relationship between development and human rights has undergone tremendous transformation in the past decades. Recently, the focus of development studies has theoretically centred on the notion of human development rather than economic development, and has adopted the idea of promoting Sen’s ‘development as freedom.’ The United Nations first officially codified the connection between human rights and development in its 1986 Declaration on the Right to Development. However, Anderson points out that the Declaration proclaims a right to development, rather than the use of rights in development, nevertheless, it does endorse the broad notion of ‘human development’ (as opposed to narrow economic development) in providing that ‘the human person is the central subject of development and should be the active participant and beneficiary of the right to development.’1 The United Nations Development Programme (UNDP) in its 2000 Human Development Report, states, ‘the basic idea of human development – that enriching the lives and freedoms of ordinary people is fundamental – has much in common with the concerns expressed by declarations of human rights.’2 McNamara pioneered the idea to further the Bank’s control on the way aid was used by borrower countries; he aspired to transform credible development agency by moving to poverty alleviation projects. Since his presidency, the Bank

1 Kirsten Anderson, ‘How Can A Rights-Based Approach to Development Programming Help to Achieve Quality Education? Evaluating the Education Guarantee Scheme in Madhya Pradesh’ (2006) 7 Asia-Pacific Journal on Human Rights and the Law 75, 86. 2 Human Development Report: Human Rights and Human Development, UNDP, 2000, p. 19.

Realising human rights obligations 273 has been torn between being a bank and being a development agency, between spending effectively and moving money fast.3 The Bank’s policy-based financing and economic adjustment programmes have been shown to have impacted on the capacity of states to fulfil the social, economic, and political rights of their citizens, most notably through the imposition of Washington Consensus–style policy prescriptions via loan conditionalities.4 Certain parts of the World Bank have taken small, but significant, steps forward to operationalise human rights,5 due to the concern that this would permeate into the realm of civil and political rights, those areas were added to the Bank’s list of permissible operations after facing the ongoing developmental problems of many of its member states.6 This change in the Bank’s operations signifies the gradual incorporation of some human rights concepts in the Bank’s definition of ‘development.’ However, on the whole the World Bank’s approach to human rights can be characterised as broadly supportive of human rights discourse without being explicitly, systematically, or strategically engaged in it. This reluctance to use human rights by the Bank stems from two main sources, the mandate under the articles of agreement and the internal resistance of member countries and officials. Stilglitz suggests that the World Bank’s ‘lending and conditionality efforts could be refocused upon achieving economic human rights, [i]nstead [of] . . . pursu[ing] a myriad of interests other than human rights.’7 The question then becomes whether the World Bank can be everything to everybody.8 Nevertheless, it must be agreed upon that the international financial institutions are now almost as powerful as states, and if they adopt a human rights–based approach in their work, the borrowing states may feel inspired to do so too. It can be argued that after Dañino’s acknowledgment that human rights are an intrinsic part of the Bank’s mission, the approach used by the Bank may be more conducive to human rights.9 However, the question still remains, whether in practise a strict human

3 Devi Sridhar, The Battle Against Hunger: Choice, Circumstance, and the World Bank (Oxford: Oxford University Press, 2008), p. 42. 4 Celine Tan, ‘Mandating Rights and Limiting Mission Creep: Holding the World Bank and the International Monetary Fund Accountable for Human Rights Violations’ (2008) 2 Human Rights & International Legal Discourse 79. 5 Mac Darrow and Louise Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the United Nations’ (2009) 103 American Journal of International LawAJIL 446. 6 Daniel Bradlow, ‘Differing Conceptions of Development and the Content of International Development Law’ (2005) 21 South African Journal on Human Rights 1, 55; Daniel Bradlow, ‘The World Bank, the IMF, and Human Rights’ (1996) 6 Journal of Transnational Law and Contemporary Problems 47, 53–56. 7 Joseph Stiglitz, Globalization and its Discontents (New York: W.W. Norton and Company, 2002), pp. 16, 59. 8 Nicole Wendt, ‘Part Two: Citizens, National Governments, and International Financial Institutions: Changing Conceptions of Development in the 1990s’ (1999) 9 Journal of Transnational Law and Contemporary Problems 165. 9 Roberto Dañino, Senior Vice President and General Counsel, ‘Legal Opinion on Human Rights and the Work of the World Bank’, January 27, 2006.

274  Bhumika Modh and Uma Mahesh Sathyanarayan rights language is necessary to ensure protection and fulfilment of human rights, or will a middle path suffice?

World Bank in context Considering the unspecified nature of the duty to cooperate for development, the European approach is distinctive due to its emphasis on creating legally binding frameworks for development cooperation.10 This is not the case with the World Bank who although being rigid in its plans and implementation, has no such ‘binding framework’ for development and the strategies keep changing and have no set rules on which they are based. One of the reasons to choose the Bank for this research is the new shift in strategy to a Country Partnership Strategy. The next section will briefly lay out an introduction of the position of India vis-à-vis the Bank and also the interplay of human rights and the Bank.

World Bank and India India, being the one of the Bank’s biggest borrower, has a very peculiar relationship with the Bank, which Singh sums up in these modest words: ‘The World Bank needs India as much as we need it.’11 Kelley and D’Souza put their finger on many aspect of India’s society and economy that is directly or indirectly impacted by projects and policies of the World Bank. However, it doesn’t offer realistic solutions of how to address them; the one interesting suggestion that they offer is that the World Bank ‘should quit India and as a matter of fact all developing countries.’ In contrast, Iyer considers ideas on how to reduce the control of the World Bank and the control of the United States within the World Bank.12 The power of the emerging global civil society is illustrated by the long drawn out struggle of the Narmada Bachao Andolan (Save Narmada Movement) in Gujarat, together with a network of national NGOs and transnational NGOs against the building of the Sardar Sarovar dam on the river Narmada. The World Bank was eventually forced to withdraw its financial support as it was not only highly detrimental to the environment; the project was predicted to displace 120,000 people.13 A major achievement of the transnational campaign against

10 Karin Arts, Integrating Human Rights into Development Cooperation: The Case of the Lomé Convention (Netherlands and Cambridge, MA: Kluwer Law International, 2000), p. 2. 11 Jason Kirk, India and the World Bank: The Politics of Aid and Influence (London: Anthem Press, 2011), p. xviii. 12 Susanne Kranz, ‘Book Review: The World Bank in India: Undermining Sovereignty, Distorting Development’ (2012) 7 Journal of Studies on Alcohol and Drugs 76. 13 Irrespective of these competing claims, the Indian state has a dismal record of developmentinduced displacement and the failure to rehabilitate those forcibly evicted. Large dams alone have displaced 16–38 million Indians since 1947, 75 percent of whom are still to be rehabilitated (World Commission on Large Dams, 2000: 104, 108).

Realising human rights obligations 275 the Narmada dam was the establishment of an independent Inspection Panel at the World Bank in 1993 as a response to pressure for more transparency and accountability as well as to threats from influential members of the US House of Representatives to block further US contributions to the International Development Association.14 Randeria calls the trend of unaccountable global governance as ‘passing the power’, in which international institutions lay back and claim to be powerless servants of their member states, and states in turn ‘capitalize on their perceived powerlessness in the face of prescriptions from Washington, DC or Geneva.’15 This results in a paradoxical situation for civil society actors for whom the state is both an ally and an adversary depending on the context. The Report of the Independent Review on the Sardar Sarovar project acknowledges the longstanding partnership between India and the Bank in this endeavour. They realise that the incremental strategy adopted by the World Bank to deal with resettlement and environmental problems has been counter-productive. They also warn that in case ‘implementation continues in these ways, problems will be compounded rather than mitigated.’16 Wade identifies the weakness of the Bank in its methodological approach:17 they have a standard model which is to be implemented more or less uniformly everywhere, with little research being done to match with the environments into which they are to be applied.

Human rights obligations of the World Bank Article I (a) of the Articles of Agreement lay down the purpose of the World Bank (IBRD): ‘to assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes, including . . . the encouragement of the development of productive facilities and resources in less developed countries.’18 In light of the primary purpose of the Bank, Article IV Section 10 of the Articles of Agreement clearly states: ‘The Bank and its officers shall not interfere in the political affairs of any member; nor shall they be influenced in their decisions by the political character of the member. . . . Only economic considerations shall be relevant to their decisions,

14 The primary purpose of the Inspection Panel is to examine whether the Bank staff has complied with its own rules and procedures. Its influence on policy formation within the World Bank is probably limited as it’s not an adjudicatory body. 15 Shalini Randeria, ‘Glocalization of Law: Environmental Justice, World Bank, NGOs and the Cunning State in India’ (2003) 51 Current Sociology 305. 16 Bradford Morse and Thomas R. Berger, Sardar Sarovar – Report of the Independent Review (Ottawa: Resource Futures International, 1992), pp. xi–xxv and 349–358. 17 Robert Wade, ‘The World Bank and India’s Irrigation Reform’ (2002) The Journal of Development Studies 171. 18 Article III (4)(vii) states that that all loans or guarantees made by the World Bank are to be for specific projects, barring an exception of ‘special circumstances.’ World Bank funds have financed projects relating to health care, infrastructure, education, rural development urban development, and trade and integration in some of the poorest countries in the world.

276  Bhumika Modh and Uma Mahesh Sathyanarayan and these considerations shall be weighed impartially in order to achieve the purposes stated in Article I.’ However, Kirk notes that ‘though economists dominate the Bank’s operations and research staffs, and though economic rationality is generally the dominant perspective of its prodigious knowledge products, many analysts have noted the inherently political nature of much of its lending and advisory work.’19 It is interesting to note here that Sen’s theory of capabilities originates from Aristotle and Marx,20 who were political theorists and scientists in essence, which the World Bank has accepted without objections. Palacio21 assures that ‘the World Bank’s role is a facilitative one, in helping our members realize their human rights obligations’; Danino says the role is collaborative. In light of the debate as to the usefulness of a human rights–based approach to development, it may be argued that the World Bank is in a way ‘fulfilling’ its human rights obligations; however, the Bank refrains from the use of the human rights terminology. For example, the methods to fulfil poverty reduction goals of the borrowing states through the finances of the World Bank would be by enforcing the economic, social, and cultural rights like health, education, and work in the state. However, empirical research by the World Bank has helped to shed light on how civil and political rights ‘can improve development outcomes and the economic rate of return on projects.’22 Additionally, granting the loans to countries for infrastructural projects would seem to fulfil human rights by generating employment and improving the standard of living. Hence, the World Bank argues that there is no need for an explicit human rights approach in Poverty Reduction Strategy Papers, as the goals of human rights and poverty reduction in PRSPs are the same.23 Nevertheless, the World Bank has also shown support to the Millennium Development Goals and now the Sustainable Development Goals, which are in essence the economic, social, and cultural rights.24 It has been established that the World Bank has certain human rights obligations; the nature of these obligations, however, vary according to commentators. For instance, the Tilburg Guiding Principles on World Bank, IMF, and Human Rights25 were drafted by a group of experts in 2001/2002. The Guiding Principles link legal obligations in the field of human rights to the economic and political realities of

19 Kirk, p. xxi. 20 Sen’s Development as freedom is full of references to both of these thinkers. 21 A. Palacio, ‘The Way Forward: Human Rights and the World Bank’ (October 2006) Development Outreach 35–37. 22 Daniel Kaufmann, ‘Human Rights and Governance: The Empirical Challenge’, in Philip Alston and Mary Robinson (eds.) Human Rights and Development: Towards Mutual Reinforcement (Oxford: Oxford University Press, 2005). 23 Susan Mathews, ‘Discoursive Alibis: Human Rights, Millennium Development Goals and Poverty Reduction Strategy Papers’ (2007) 50 Development 76–82. 24 Philip Alston, ‘Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Through the Lens of the Millennium Development Goals’, (2005) 27 Human Rights Quarterly 755–829. 25 Willem van Genugten, Paul Hunt and Susan Mathews, eds., World Bank, IMF and Human Rights (Nijmegen: Wolf Legal Publishers, 2003), pp. 247–255.

Realising human rights obligations 277 these organisations and discuss possible redress for adverse human rights impacts stemming from their activities.

Human rights lens Essentially a rights-based approach is based explicitly on the norms and values set out in the international law of human rights. Though reluctantly, development agencies have begun to embrace human rights in their work through what has been developed as the ‘human–rights based approach to development’ (hereinafter referred to as ‘HRBA’). Human rights principles have the potential to guide programming in all phases of the process, including assessment and analysis, program planning and design, implementation, monitoring, and evaluation. Sarelin notes that though these human rights principles are frequently used in policy documents, it is important to note that these are not strict ‘legal principles,’ rather they are a blend of so-called ‘good development programming’ and human rights thinking.26 In order to establish HRBA as a human rights lens for an analysis, one must base the framework on the International Bill of Human Rights and the jurisprudence created thereof. The ten international human rights documents provide a comprehensive explanation of the nature and content of human rights law. Due to the growing literature and acceptance of the human rights obligations, in some form or the other, of non-state actors, the next section will formulate a human rights normative framework in order to apply it to one such non-state actor, World Bank. The section will compare and contrast the plethora of ways to integrate human rights into development as developed by authors, along with outlining the normative framework established by human rights law, followed by a discussion on the challenges of operationalisation of human rights approaches to development.

Human rights–based approach to development There is no single definition of what constitutes HRBA to development cooperation. The Office of the United Nations High Commissioner for Human Rights defines HRBA as a conceptual framework for the process of human development. It is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. Another author states that ‘a rights-based approach to development provides both the conceptual and practical framework for the realization of human rights through development process.’27

26 Alessandra Sarelin, ‘Human Rights-Based Approaches to Development Cooperation, HIV/ AIDS, and Food Security’, (2007) 29 Human Rights Quarterly 460. 27 Siri Damman, ‘Indigenous Vulnerability and the Process Towards the Millennium Development Goals-Will a Human Rights-Based Approach Help?’ (2007) 14 Journal of Mason Graduate Research 489.

278  Bhumika Modh and Uma Mahesh Sathyanarayan At the theoretical level, the HRBA can be defined as a conceptual framework for human development based on international human rights standards. At the practical level, the HRBA has a wide range of interpretations, methodologies, and practices among different U.N. agencies, other multilateral institutions.28 HRBA may be summed up as the practical manifestation of the goal of human development along with a set of internationally sanctioned rights and obligations which can foster accountability on duty-bearers and empower rights-holders with claims, thereby placing them at the centre of the development process.29

Normative framework and challenges to operationalisation HRBA is an approach to development that uses human rights as justifications and guidelines as well as standards and benchmarks for development. In 2003, a Memorandum for a Common Understanding of the HRBA among many U.N. agencies was adopted, based on certain human rights principles to guide development programming: universality and inalienability, indivisibility, interdependence and interrelatedness; equality and non-discrimination, participation and inclusion; accountability and the rule of law. Bearing in mind Uvin’s precaution that donors misconceive human rights, democracy, and good governance to be the same,30 for the purposes of this research, the prime elements which combine the three, i.e., civil and political rights, shall be taken as embodied in good governance for the purposes of HRBA. Article 2 (1) of ICESCR puts a peculiar obligation on states, which is called the gateway to the Covenant: ‘take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’ According to the Committee on Economic, Social and Cultural Rights (CESCR), for every human right under the covenant, the state has certain ‘minimum core obligations’ and ‘other obligations which are to be progressively realised’.31 The following tables show how the CESCR has set up normative frameworks for the rights through their General Comments.32

28 Andrea Cornwall and Celestine Nyamu-Musembi, ‘Putting the “Rights-Based Approach” to Development in Perspective’, (2004) 25 Third World Quarterly 1415. 29 See Anderson. 30 Peter Uvin, Human Rights and Development (Bloomfield, CT: Kumarian Press, 2004), p 85. 31 Developed by General Comments by CESCR, especially General Comment 3 on Nature on State’s Obligations. One of Nussbaum’s criticisms of Sen’s theory is that he doesn’t identify what he includes in ‘central capabilities.’ Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), p 13. The CESCR identifies the core obligations of a state within a human right, which can be said to be an expansion of this conception of ‘central capabilities.’ 32 General Comments 4, 12, 13, 14, 15, 18, 19, 21 of CESCR.

Realising human rights obligations 279

Right to water

Right to social security

Right to work

Availability Availability

Availability Availability

Social risks and conngencies

Quality

Accessibility (physical accessibility, economic accessibility, non discriminaon, informaon accessibility)

Right to housing

Legal security of tenure Availability of services, materials, facilies, and infrastructure Affordability

Adequacy

Accessibility

Accessibility

Accessibility (coverage, eligibility, affordability, parcipaon and informaon, physical access)

Locaon Cultural adequacy

Acceptability

Adaptability Acceptability and quality

Relaonship with other rights

Appropriateness

Right to food

Right to educaon

Right to highest aainable standard of health

Free from adverse substances

Availability

Availability

Cultural or consumer acceptability

Accessibility (nondiscriminaon, physical accessibility, economic accessibility)

Accessibility (nondiscriminaon, physical accessibility, economic accessibility [affordability], informaon accessibility)

Availability

Acceptability

Acceptability

Accessibility, encompassing both economic and physical accessibility

Adaptability

Quality

Habitability Accessibility

Right to take part in cultural life

Figure 12.1  Normative Framework for Economic, Social and Cultural Rights.

Apart from the national budgets of the states, the term ‘maximum available resources’ used in this Article includes the international assistance that is provided to countries. The Tilburg Guiding Principles on World Bank, IMF and Human Rights drafted by a group of experts33 in 2001/2002 link legal obligations in the field of human rights to the economic and political realities of

33 See van Genugten, Hunt and Mathews, eds., pp. 247–255.

280  Bhumika Modh and Uma Mahesh Sathyanarayan these organisations and discuss possible redress for adverse human rights impacts stemming from their activities.34 Pais defines operationalisation of a human rights approach in development cooperation to imply a commitment to human rights, which is more than just a political commitment, and into a clear meaningful national agenda.35 From the perspective of donors, the HRBA operationalistion has its own set of challenges; Cornwall and Nyamu-Musembi observe that the approaches used by donors have common principles, yet different emphases. They highlight that ‘most of the organizations see a rights-based or human rights approach as a catalyst that can transform the practice of development from a focus on identifying and meeting needs to enabling people to recognise and exercise rights.’36 Oestreich’s research brought to light a strategy used by UN in India: ‘promoting rights issues without actually using the term rights; instead, policies are presented using less sensitive language.’37 Table 12.1 briefly maps the various ways in which aspects of human rights (dimensions, principles, and obligations) may be integrated into development work. It is important to note that HRBA should be wholesome and include aspects of all human rights, not only good governance but also ESCR rights equally. The human rights framework established herein, i.e., the unification of the civil and political rights (components of which are represented through good governance) and economic, social, and cultural rights becomes the human rights–based approach to development; which will be used as a human rights lens for the World Bank’s Country Partnership Strategy for India (2013–17).

Application of the lens Although there seem to be varied opinions with respect to the definition of a HRBA, as outlined in Section “World Bank in context”, there is a consensus that human rights must be applied in the process as well as the substantive content of the activity. In order to adopt a complete HRBA, an institutional transformation is needed, unlike a mere integration of human rights where human rights offer valuable insights, but need not systematically be taken into account in all aspects of policy, programming, implementation, and monitoring of aid.38 DFID

34 Shyami Puvimanasinghe, ‘International Solidarity in an Interdependent World’ in United Nations Publication, Realizing the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to Development, 2013, p. 188. 35 Marta Santos Pais, A Human Rights Conceptual Framework for UNICEF (UNICEF International Child Development Centre, 1999), p 20. 36 See Cornwall. 37 Joel E. Oestreich, ‘The United Nations and the Rights-based Approach to Development in India’ (2014) 20 Global Governance 77. 38 Piron and Watkins, DFID Human Rights Review: A review of how DFID has integrated human rights into its work. Certain institutional and cultural barriers within the World Bank and IMF impede the integration of human rights dimensions within their policies,

Table 12.1  Integrating human rights into development work Human Rights Dimensions Nonexplicit integration

Integrating human rights principles

Integrating human rights accountability

Substantive overlap between the areas covered by human rights and development. Largely coincidental, and integration is not systematic. No explicit commitment to human rights. Program goals rarely based on human rights, occasional reliance on human rights indicators.

Human Rights Principles

Strategic and sectoral integration of human rights principles, such as participation, inclusion, nondiscrimination, ‘do no harm.’ Program goals may include human rights but are also informed by other perspectives or driven by other principles.

Human Rights Obligations

Legal accountability emphasised, focus on dutybearer conduct acknowledging rights-based approaches. Explicit groundings of programs in human rights norms and obligations and rights language.

Source: McInerney-Lankford and Sano, Human Rights Indicators in Development: An Introduction, World Bank, 2010. Reproduced under CC-BY

282  Bhumika Modh and Uma Mahesh Sathyanarayan identifies two different techniques of adopting HRBA: strategic and integrative. Strategic approach is adopted where the human rights situation is used as a starting point and provides the basis of the country strategy. Integrative approach is one where human rights are integrated into the country programme.39

World Bank and human rights–based approach to development Human rights operationalisation requires an in-depth study of the institution to which it is applied and the rights itself. Although there is no one set framework on how to operationalise HRBA, scholars have advanced suggestions on how to operationalise HRBA in the context of the World Bank. Horta suggests two ways: first, the donor governments must give the institution a clear mandate to shift to a rights-based approach and move to a more coherent overall approach to development; second, the World Bank must get rid of the ‘approval culture’ which judges projects on the basis of how much money has been moved.40 Darrow, however, identifies structural obstacles to this integration, including challenges in ensuring consistent leadership, problems of organisational culture, internal disincentives including pressures for rapid disbursement, political resistance, conflicting donor agendas and policy demands, and the challenges of adapting internal accountability and evaluation systems to include human rights criteria. He further analyses the Bank’s approach to operationalising human rights at two levels: first, the responsibility to do no harm (similar to the obligation to respect) and second, strategies for research, analysis, and country assistance that support the integration of human rights into Bank work on empirical or instrumental grounds.41 The groundbreaking WHO report by Bustreo and Hunt titled Women’s and children’s health: evidence of impact of human rights answers the questions raised by many development practitioners who question the practicality of the HRBA. For this study, 18 projects of the World Bank were analysed and was found that they used considerable amount of human rights terminology like accountability and focus on the quality of the women’s and children health. Although many multilateral and bilateral financial institutions often follow the World Bank’s lead as a model for their own policies and practice, in respect of human rights, the World Bank seems to be far behind.42 Horta also opines

programmes, and projects. Mac Darrow, Between Light and Shadow (Oxford: Hart Publishing, 2003), p. 196. 39 Ibid. 40 Korinna Horta, ‘Rhetoric and Reality: Human Rights and the World Bank’ (2002) 15 Harvard Human Rights Journal 227. 41 See Darrow. 42 See Horta. Increased attention in the Lomé Convention to human rights, democracy, and good governance led to the suspension in 1994 of aid to Nigeria, Gambia, Liberia, Somalia, Zaire, Sudan, Togo, and Equatorial Guinea. Aid to other countries, such as Kenya and Malawi, was temporarily suspended and later resumed. Sanae Fujita, The World Bank, Asian Development Bank and Human Rights: Developing Standards of Transparency, Participation and Accountability (Cheltenham: Edward Elgar, 2013).

Realising human rights obligations 283 that the Bank’s ‘failure to consider civil and political rights as the foundation for social and economic rights is a central reason for the lack of success’;43 however, this reasoning seems flawed in light of the Vienna Declaration declaring that all human rights are universal, interdependent; thereby, stating that one right is the ‘foundation’ of the other doesn’t seem to be an apt deduction.44 One may argue that the major challenge that the Bank may be facing is with respect to the conflict in definition of issues; for instance, poverty,45 malnutrition,46 and education47 have different definitions from a human rights perspective and from a development perspective. Marks recommends in order to overcome this difficulty, the elements of human rights must be understood. He suggests defining socioeconomic issues in terms of rights, using the General Comments by the treaty bodies, referring to treaty obligations of the main human rights treaties, focusing on obligations to respect, protect, promote, facilitate, and provide and apply the participatory method.48 Taking lead from Uvin, Cornwall, and NyamuMusembi warn the donors of the repercussions of their ‘rhetorical flirtation’ with human rights.49 They also question as to where the obligations of a HRBA actually lie: primarily with the recipient state to ensure that the aid is used in a manner that respects and fulfils its citizens’ rights, and then the question arises, what are the obligations of the donor? This leads to the grey area of whether the agency would be liable for the human rights violations caused as a result of the aid dispersed.50

World Bank’s Country Partnership Strategy From core loan conditionalities, structural adjustment programmes (SAP),51 poverty reduction strategy papers (PRSP)52 to country partnership strategies (CPS),

43 See Horta. 44 Ibid. 45 C. Ruggeri Laderchi, R. Saith, and F. Stewart (2003) ‘Does it Matter that We Don’t Agree on the Definition of Poverty? A Comparison of Four Approaches.’ QEH Working Paper Series 107, University of Oxford, Oxford. 46 See Sridhar. 47 Leah McMillan, ‘What’s in a Right? Two Variations for Interpreting the Right to Education’ (2010) 56:5 International Review of Education 531. 48 Stephen P. Marks, The Human Rights Framework for Development: Seven Approaches, in Basu, Mushumi, Archna Negi, and Arjun K. Sengupta (eds.) Reflections on the Right to Development (New Delhi: Sage Publications, 2005), pp. 23–60. 49 See Cornwall. 50 Ibid. 51 M. Rodwan Abouharb and David L. Cingranelli, ‘The Human Rights Effects of World Bank Structural Adjustment, 1981–2000’, (2006) 50 International Studies Quarterly 233. 52 Three trends identified by Nankani, Page, and Judge which lead to PRSP: redefinition of poverty due to Sen’s work which linked development and human rights through capabilities, the recognition of that failure of development assistance in achieving its goals, and the reform of the HIPC seen as an opportunity to strengthen links between poverty reduction, debt relief, and good governance. See Gobing Nankani, John Page, and Lindsay Judge,

284  Bhumika Modh and Uma Mahesh Sathyanarayan the World Bank has adopted a range of strategies for development cooperation over the decades to deal with its lending function.53 Wade identifies54 the weakness of the Bank is in its methodological approach: they have a standard model which is to be applied more or less uniformly everywhere, with little research being done to match the ingredients against the environments into which they are to be introduced, i.e., lack of adaptability. Danino points out that a comprehensive understanding of the country context – relevant social, institutional, and political factors – is necessary when the Bank is involved in lending or advising on development policy issues.55 The Bank identified that by increasing country ownership and selectivity this dilemma can be overcome. The Country Partnership Strategies are its manifestation: involving a deeper analysis and engagement with the country and its issues. As the Bank gradually shifted its strategy towards India to a ‘focus states strategy’ where the special emphasis went to ‘lagging states,’ in terms of poverty and weak human development, India appeared uncertain about this changing relationship – from being a large source of investment capital to serve as advisor and partner to Indian policymakers both at the Centre and increasingly at the state government level. The aim of the more grassroot level engagement of the Bank was to bridge the gap between the ‘two Indias’ – one a middle-income country and rising global power, the other home to millions of poor people. The selective approach was criticised by many but the Rudolphs call this the emergence of ‘shared sovereignty’ between India’s central government and its states, in the context of an evolving ‘federal market economy.’56 Some states have embraced the reform ethos, but the so-called lagging states have seen little or no growth acceleration. Kirk suggests that India should adopt a more assertive advocacy for its continuing interest in development assistance, while allowing the Bank greater freedom to experiment, especially at the state level.57

An overview of World Bank’s Country Partnership Strategy for India FY 2013–17 The WB’s Country Partnership Strategy (CPS) for India 13–17 is organised in a consistent manner to improve the country engagement, not only on a state

‘Human Rights and Poverty Reduction Strategies: Moving Towards Convergence’ in see note 21 pp. 475–476. 53 Report submitted by Mr. Fantu Cheru, independent expert on the effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social, and cultural rights, E/CN.4/2001/56. 54 See Wade. 55 See Danino. 56 Lloyd Rudolph and Susanne Rudolph, ‘Iconisation of Chandrababu: Sharing sovereignty in India’s federal Market Economy’ (2001) XXXVI Economic and Political Weekly 18 (5–11 May), 1541–1552. 57 See Kirk.

Realising human rights obligations 285 level, but also on a national level. The Bank strategy’s overarching goal of rapid poverty reduction and increased shared prosperity is proposed to be achieved by focussing on three strategic engagement areas: ‘integration,’ ‘transformation,’ and ‘inclusion.’ It has also been mentioned that a focus on improved governance, environmental sustainability, and gender equality runs across all three engagement areas.58 These engagement areas are very similar to the three principles of participation, inclusion fulfilling obligations which are the core of the DFID human rights approach. The Bank mentions a focus on improved governance, environmental sustainability, and gender equality across all the engagement areas. The strategy document adopts a very cohesive format and starts by listing challenges faced by the Bank, followed by a guided implementation plan based on these engagement areas. This strategy seems to be more coherent in its approach as compared to the CPS of 09–12. The call for civil society consultations also hint towards these strategic areas and are very progressive in terms of human rights concepts.59 Thus, one may presume that the human rights language used in this document may be the result of a collaboration and constructive dialogue between the Bank and the civil society. The document has various references to human rights terminology throughout. The following section will discuss the document in light of human rights issues raised in the report and how they are dealt with. Before the section descends into a thematic discussion, it is important to point out that a focus on improved governance, environmental sustainability, and gender equality runs across all three engagement areas, ‘integration,’ ‘transformation,’ and ‘inclusion.’60

Human rights critique of the WB CPS for India Section “World Bank in context” attempted to bring together the distinct HRBA put forward by different institutions and scholars. The human rights analysis of the CPS document shall be done according to the framework laid down in the World Bank in context section: analysing whether the elements of good governance (embodiments of concepts of civil and political rights), economic, social, and cultural rights are present in this document.

Good governance The hesitation of any international (financial) institution in applying the civil and political rights to their development work would be the obvious political dimension that these rights incur. For example, in case the Bank was to apply a blanket HRBA, the question would arise as to whether China, being an important actor

58 CPS, p. 27. 59 Available at www.worldbank.org/en/news/feature/2012/04/01/india-country-strategyconsultations. Last accessed 23 March 2019. 60 63 of CPS.

286  Bhumika Modh and Uma Mahesh Sathyanarayan in the World Bank, be supportive of any further activities thereon. The good governance notion was an extension and deepening of the Bank’s economic conditionality agenda, contained in the structural adjustment programs of the 1980s. It was widely perceived that these programs had not lived up to expectations and this failure was seen as a result of political factors. Uvin still seems cynical and states that the good governance agenda is also essentially fulfilling a rhetoricalpolitical function.61 ACCOUNTABILITY

Acknowledging that people have valid claims is a step beyond the idea of both human development and the practice of good programming. For example, HRBA would recognise that people living with HIV and affected communities have valid human rights claims, and there ought to be methods for holding accountable those actors who have obligations, whether they are state or non-state actors or the development agencies themselves. Robinson asserts that the most defining attribute of human rights in development is its focus on accountability.62 While discussing the three engagement areas, the document mentions that strengthened accountability is extremely important for one of the areas: social inclusion.63 The document mentions accountability several times in connection with health services and the availability of healthcare provided by the government in order to develop local systems and capacities.64 In terms of education, the document mentions that the quality of education is determined by the quality of teacher training, performance, and accountability.65 The Bank also emphasises that the establishment of accountability mechanism in the government will facilitate the implementation of the Bank’s projects and suggests to strengthen ‘Governance and Accountability Action Plans,’ for this purpose.66 TRANSPARENCY

In terms of the Bank’s obligations, the document mentions that the Bank would also adopt a more transparent approach towards delivering aid by calling it ‘responsible finance.’67 The previous CPS for India (09–13) stated that ‘the WB helped India’s strategic shift toward a “rights-based” approach to social inclusion by supporting capacity for implementation in projects and centrally sponsored schemes, and by promoting social accountability mechanisms.’68 UNDP supports this approach of India and makes a straightforward rights-based argument

61 62 63 64 65 66 67 68

See Uvin. Mary Robinson, ‘What Rights Can Add to Good Development Practice’ in note 21, p. 39. 63 of CPS. 95, 97 of CPS. 100 of CPS. 118 of CPS. 103 of CPS. 26 of CPS (09–13).

Realising human rights obligations 287 for RTI, whereas the World Bank sticks to the more development-oriented argument that access to information improves accountability and transparency and, thus, development outcomes. The WB in its report has applauded the Indian government’s effort to enact and implement the Right to Information Act over the nation. It commends the ‘rights-based approach’ adopted by the Indian government. One may ask how different is a rights-based approach from HRBA: it may be said that human rights–based approach is more explicitly grounded in international law and recognises development agencies have an obligation of realisation of all human rights for all, a rights-based approach mostly is a short-hand for a human rights– based approach, but sometimes it may also be used to indicate a certain distance from the body of international and national legal standards and mechanisms.69 Considering the distance created by the World Bank on the whole about human rights terminology, the second point of difference seems valid. PARTICIPATION

The overuse of ‘participation’ has led to a blurry meaning of the term. In HRBA, participation is defined as a right itself, not as a means to improve program performance or the active involvement of only marginalised people; it means equal participation by all surpassing the power hierarchies. Golub adds that a ‘legal empowerment’ approach better integrates rights and development than does the dominant ‘rule of law orthodoxy’ reflected in state-centred programs.70 The consultations with civil society in framing the CPS symbolise the integration of the importance of participation and empowerment in the policy-making of the Bank. The CPS appreciates the participatory democracy that prevails in India through the local self government, i.e., panchayati raj.71 The World Bank has acknowledged the importance of this local self government in ensuring that the benefits of programmes reach all strata of the society with the help of these panchayats.72 The document includes a wide range of the use of the term participation in terms of gender equity in employment,73 which is a step even further, i.e., a better integration of two objectives (gender equality and participation) NON-DISCRIMINATION

In practice, non-discrimination means a need to be aware of the individuals and groups who are most vulnerable; however, Sarelin cautions that vulnerability

69 Dfid document. 70 Stephan Golub, ‘Less Law and Reform, More Politics and Enforcement: A Civil Society Approach to Integrating Rights and Development’, in Alston and Robinson (eds.). 71 27 of CPS. 72 Vineet Kapoor, ‘Human Rights Based Approach to Development and People’s Empowerment through Participatory Governance: A Critical Examination of Panchayati Raj Institutions in India’ 2010. 73 64 of CPS.

288  Bhumika Modh and Uma Mahesh Sathyanarayan should always be put into context.74 Discrimination in the document is primarily used in the context of gender equality, which is justified on the ground that the report had mentioned that gender equality would be one of the threads running through the engagement areas. Non-discrimination finds reference in both covenants (ICCPR and ICESCR) and one facet of it (gender equality) is also the basis of the engagement areas. However, it is interesting to see that the Bank has completely avoided the ‘politics of culture,’ that the Indian government often invokes to defend its gender discriminatory practices. The Bank, unknowingly, is defying the cultural norms which justify gender hierarchy in plural societies like that of India; however, cultural relativists would be extremely disappointed with this interpretation. Nyamu calls upon international actors to adopt a critical pragmatic approach to pluralism and engage at multiple sites and to assess the most successful methods of redressing gender hierarchies in diverse contexts.75

Economic, social, and cultural rights These recent evolutions have brought the development perspective on poverty closer to human rights concerns because these concepts share a common commitment to human freedom and dignity as the basic objective. The 2003 OHCHR publication on the conceptual framework for linking human rights and poverty argues that there is a substantial equivalence between poverty as failure to achieve basic capabilities and failures to fulfil basic human rights because the basic capabilities and basic human rights in question overlap.76 The CPS also states that lifting people out of poverty is not enough,77 thus implying a holistic approach towards poverty reduction involving realising all human rights, especially ESCR. RIGHT TO EDUCATION

Dréze identifies that right to education is one such ESCR which has been taken seriously by the government of India.78 India’s Sarva Shiksha Abhiyan (Education for All programme), sponsored by the Bank, seeks to meet the primary education needs of nearly 200 million poor children living in more than 1 million rural towns and villages across the country.79 Human rights have created an environment in which the international community bears some responsibility for ensuring rights fulfilment. For instance, the United Nations Convention on the Rights

74 See Sarelin. 75 Celestine Nyamu, ‘How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?’ (2000) 41 Harvard International Law Journal 381. 76 OHCHR 2003 by Hunt, Nowak, and Osmani also argues that the range of capabilities and human rights in question are those that are constrained by availability of resources. 77 21 of CPS. 78 Jean Dréze, ‘Democracy and the Right to Food’, in note 21, p. 52. 79 World Bank Annual Report 2011: Year in Review.

Realising human rights obligations 289 of the Child (CRC) Article 24(4) begins, ‘States Parties undertake to promote and encourage international cooperation.’ McMillan argues that there are two definitions of ‘education’: one by human rights fraternity and the other by international development. Though HRBA has converged the two perspectives, the ‘underlying assumed definitions of education used by each perspective make the convergence of these two paradigms less harmonious than is often assumed’: the development perspective perceives education for socialisation, whereas the human rights perspective perceives education for human capital, i.e., to ultimately qualify for livelihood.80 This rationale, however, seems incorrect and incomplete. Taking a look at Sen, he developed his theory of human capabilities for bettering the integration of human rights and development; however, the differentiation that McMillan talks of is turned topsyturvy by Sen’s work. The document states that India’s efforts to improve access, equity, and quality of education at the primary, secondary, and tertiary levels remains a work in progress.81 This is interesting as the terms ‘access, equity, and quality’ have striking resemblance to the normative content of right to education as established by the CESCR – the AAAA framework of availability, accessibility, acceptability, and adaptability.82 The Bank openly uses the term access, implying economic and physical accessibility of education equally to all (equity); the term quality hints towards acceptability and adaptability of education indicating a consonance with culture and growing need of the people. However, McMillan also gives a constructive suggestion that HRBA should use the importance of the two definitions to their full advantage. For instance, the three indicators for determining the achievement as part of the MDGs are quantitative in nature – namely measuring net enrolment rates, grade five completion rates and literacy rates, completely overlooking the need to measure quality of education highlighted by the normative content of the right to education by the ESCR.83 RIGHT TO HIGHEST ATTAINABLE STANDARD OF HEALTH

The document expresses concern on access, quality, and effective delivery of health care improvements, while also recognising systematic constraints faced by the Indian government.84 This seems to fulfil three of the AAAQ requirements:85 availability, accessibility, and quality of the right to highest attainable standard of health. The only missing element is acceptability, and as discussed above, the Bank is completely oblivious of the cultural diversity dimension of development

80 81 82 83 84 85

See McMillan. 59 of CPS. General Comment 13, CESCR, 6. See McMillan. 56 of CPS. General Comment 14 of CESCR.

290  Bhumika Modh and Uma Mahesh Sathyanarayan as emphasised by the UN Special Rapporteur on his special mission to India.86 Improving public and private health delivery systems is also a stipulated outcome of one of the engagement areas, inclusion.87 Here the Bank mentions the need for health care to be accessible and affordable.88 Unfortunately, unlike right to education, healthcare has not been taken so seriously by the government. Gauri identifies three ways in which economic policies are different in approach to human rights policies in the context of health and education: first, the rights-based approach follows from the understanding that health and education are critical elements of social inclusion,89 which is one of the engagement areas; second, rights approaches accommodate adaptive preferences, something on the lines of ‘integration’, which is the primary engagement area in this document. RIGHT TO FOOD

Though mutually non-exclusive, Dréze identifies three meanings of right to food in the Indian context: one, as under the Indian Constitution, as a Directive Principle of State Policy; as an international human right under the international declarations and conventions; as a moral and social right, independent from the documents.90 Dréze states that right to food is more complex than the other rights, due to its collective nature; i.e., it is a right to be free from hunger and the responsibility is also shared with the state by the parents of an undernourished girl child.91 Capturing this complexity, Eide expounded the threefold obligations of the state as that of to ‘respect, protect, and fulfil.’92 Although applauding the mid-day meals initiative of the governments, Dréze calls the nutrition situation in India as a ‘slight emergency’ due to the lack of responsiveness of the democracy of India. The Centre for Development and Human Right (India) outlines ways to operationalise the physical and economic accessibility as required by the normative framework: reforming the public distribution system; encouraging the micro-level food distribution systems already operating in India; solving the problem of excess of public stocks of foodgrains in India; establishing more employment opportunities in order to secure the economic accessibility of right to food.93 There are numerous references to nutrition, thus fulfiling the

86 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, Paul Hunt’s Mission to India (2010). 87 97 of CPS. 88 98 of CPS. 89 Varun Gauri, ‘Social Rights and Economics: Claims to Health care and Education in Developing Countries’ in note 21, p. 79. 90 See Dréze. 91 Ibid. 92 See Right to adequate food as a human right, Study Series No. 1, New York, United Nations publication, 1989. 93 Centre for Development and Human Rights, The Right to Development: A Primer (New Delhi: Sage Publications, 2004).

Realising human rights obligations 291 dietary needs requirement of the normative framework,94 in the CPS document including a reference to access to food.95 Another programme of the Bank in India Tamil Nadu Integrated Nutrition Project (TINP) lacked the role of gender despite being specifically designed to target women and children. The World Bank has recognised that agriculture is key to achieve the development goals,96 as most of the world’s poor live in rural areas and in India, 65% of the population is rural.97 The document places special emphasis on the agricultural outcomes and improvements in agricultural techniques in order to impact livelihood of the farmers of India. Under the engagement area of transformation, due importance is given to the fact that the rural population needs a boost in its agricultural productivity, implying a direct impact on the physical accessibility of food.98 However, on the other hand, the document persistently refers to an increase in transformation in terms of accelerating urbanisation as being central to India’s growth, development, and poverty reduction.99 These statements within the document seem to be conflicting in essence; this may be because of no definition of urbanisation appended to the document. If it means mobilisation of population and a sectoral shift towards manufacturing, the essence of India’s rural population will be lost. However, if it means urbanisation in terms of adopting a infrastructure similar to that of urban areas, this conflict of ideas is clearly avoided. This dilemma poses a threat to the means of earning livelihood for farmers, in other words, shifting to a manufacturing centred economy will not only affect the physical accessibility of food, but also the economic power of the farmer/rural Indian to have access to food as he would no longer be an agriculturalist. RIGHTS TO WATER AND SANITATION

The CPS document refers to all three elements of the normative content of the right to water, AAQ:100 availability of the sufficient quantity of water,101 accessibility and availability of safe drinking water (quality).102 There is also a general reference to natural resources (environment sustainability) in talking about the threads underlying the engagement areas.103 The bank’s claim that its work promotes economic and social rights needs to be held up against other statements that the bank makes which are in tension with

 94 General Comment 12, CESCR.  95 99 of CPS.  96 Sukanya Pillay, ‘India Sinking: Threats to the Right to Food, Food Security & Development in an Era of Economic Growth’, (2009) 27 Windsor Yearbook of Access to Justice 127.  97 Census of India. Available at http://censusindia.gov.in/  98 76 onwards of CPS.  99 47 of CPS. 100 General Comment 15 of CESCR. 101 54 of CPS 102 58 of CPS. 103 63 of CPS.

292  Bhumika Modh and Uma Mahesh Sathyanarayan the achievement of basic economic and social rights. One example is with respect to the privatisation of water services, which is labelled ‘rights-based water sharing.’ A joint World Bank/ Netherlands water partnership program (operating in Brazil, Chile, Indonesia, Philippines and Yemen, with planned extension to India and Kenya) describes the objective of the ‘water rights system’ as ‘stimulating the use of rights-based systems for the allocation of water in World Bank assisted projects (through market mechanisms).’ What is being described as ‘rights-based’ is no more than a system of tradable permits in water. The emphasis on ‘allowing water to move from lower to higher value uses’ and therefore ‘increasing efficient use’ suggests a focus on profitable use rather than adequate supply for all, and the system is therefore likely to favour large commercial users.”

Implementation of the strategy Implementation of the strategy involves a varied range of investment approaches; however, the one relevant to human rights practitioners is based on the concept of equity. The Bank proposes to focus on low income states to develop their infrastructure projects104 while also lending to more advanced states in order to encourage innovative and transformative activities.105 The Bank also suggests that it shall also support centre owned sponsored schemes running in a few states to scale up to the national level for capacity and institution building.106 The Bank has, however, conceded that the implementation of the strategy can be better achieved by improving governance.107 A human rights methodology would suggest an implementation strategy based on the nature of obligations, i.e., immediate core obligations and progressive realisation obligations. Skogly, echoing Eide, explains that the differentiation of immediate and programmatic actions based on the nature of rights, civil and political vs. ESCR, is not valid.108 The complexity of human rights arises when all rights have a two-tier fulfilment requirement, immediate and programmatic, where both are equally important and require simultaneous implementation. She distinguishes between actually providing for rights fulfilment versus providing the ‘substance of the rights,’ which the donors do.109 The Bank has also not mentioned any methods of measuring the success of the implementation; human rights methods suggest the use of benchmarks and indicators.

104 105 106 107 108 109

107 of CPS. 108 of CPS. 109 of CPS. 118 of CPS. See Skogly, p. 52. See Skogly, pp. 56–57, which captures the nature of foreign assistance to developing countries which is granted on the basis of the discretion of the donors, in terms of who receives support, what is being supported and for what period of time, popularly known as the ‘approval culture’ of the Bank.

Realising human rights obligations 293

Challenges of mainstreaming human rights into the World Bank Universal Declaration of Human Rights is a ‘common standard for all peoples and all nations . . . [and] excludes no one, no company no market, no cyberspace.’110 In the same vein, the World Bank should also be guided by the principles laid down by the Declaration. Skogly suggests two reasons to support the existence of human rights obligations of the World Bank; first, by virtue of holding an international legal personality111 as a UN specialised agency, the Bank has human rights obligations which flow from the UN Charter and subsequent human rights treaties. Secondly – Fujita calls this the indirect approach112 – the members are states who bring their human rights obligations with them to the Bank.113 However, it may be argued that the second perspective stands nullified by the bare reading of Article IV Section 10 which states that ‘the Bank cannot be influenced in its decisions by the political character of the member or members concerned.’ Darrow gives two valid reasons as to why the World Bank would integrate human rights and development: ‘(1) intrinsic reasons, (factoring in human rights by legal or moral compulsion because it is “the right thing to do,”) and (2) instrumental reasons (because the integration of human rights promotes development objectives.’)114 Whatever incomplete forms of human rights terminology is used by the Bank in this CPS stands testimony to the fact that the Bank has attempted in a stealthy manner to integrate HRBA due to a combination of both these reasons. The only reason as to why the Bank seems to have adopted the partial HRBA language is to benefit from the moral authority and political appeal of the human rights discourse, or what Uvin calls Sen’s high moral ground.115 Darrow suggests that the Bank may not need to look far beyond its own walls to answer the ‘why, what, and how’ questions of mainstreaming human rights in its work.116 Hickey and Mitlin point out that those agencies which fail to fully mainstream a rights-based approach may find that they end up contradicting themselves in practice.117 The World Bank recognises the great size, diversity,

110 L. Henkin, ‘The Universal Declaration at 50 and the Challenge of Global Markets’ (1999) 25 Brooklyn Journal of International Law 24–25. 111 Skogly identifies the Bank’s international legal personality through the international nature of its mandate and staff, legal personality, privilege and immunity, and ability to enter into and conclude international agreements. See note 84. 112 Sanae Fujita, The World Bank, Asian Development Bank and Human Rights: developing Standards of Transparency, Participation and Accountability (Cheltenham: Edward Elgar, 2013), 4. 113 See Skogly. 114 See Darrow. 115 See Uvin. 116 See Darrow. 117 See Hickey and Diana Mitlin, ‘The Potential and Pitfalls of Rights-Based Approaches to Development’, in Alston and Robinson (eds.), p. 217. ‘Witness the UK Department for International Development’s promotion of water privatisation alongside its insistence that affordable access to water is a basic human right.’

294  Bhumika Modh and Uma Mahesh Sathyanarayan and magnitude of India’s development challenges; it uses ‘selectivity principles’ for engagement under this CPS.118 However, based on this size and diversity amongst the country, the Bank does not pay attention to the differing needs of each group of people. Although the CPS is a result of the Bank’s initiative to increase country engagement, due to the consistent lack of cultural diversity and the need for adaptability, such strategies are not always going to have the desired involvement. As seen above, on a functional level, the World Bank has gradually shifted its goal from development and economic growth to poverty reduction. This transition seems to be smooth due to the celebrated work of Sen, attributing poverty to a ‘lack of capabilities.’ Sen himself advocates linking human rights to the concept of human capabilities and poverty; however, the World Bank seems extremely reluctant to cross the bridge to fully embrace a human rights–based approach to development by mainstreaming human rights into their agenda.119 Interestingly, Oestreich’s study reveals that several staff of the World Bank confirmed that human rights was a key component of World Bank programming, yet they remained reluctant to discuss it too openly.120 The aversion of the World Bank to categorically mainstream human rights may be attributed to the fact that it is a multilateral donor, unlike DFID, SIDA, and SDC which are bilateral donors.121 There are different ways in which human rights principles and standards have influenced the development of country strategies by DFID, including: ‘as a framework that informs the overall strategy; in setting out principles for partnership, which can impact on the nature or scale of aid; in using a human rights analysis to inform new strands of work; or in initiating new learning interventions.’122 The Swiss Agency for Development and Cooperation (SDC) has mainstreamed human rights in a transversal manner by ‘integrating human rights into the design, implementation and monitoring of overall and sectoral policies, its country strategies, and individual programmes and projects.’123

118 110 of CPS. 119 ‘To some degree, the Bank’s lending activities explicitly reflect human rights entitlements and obligations in specific areas. For example, HIV/AIDS projects in certain parts of the world seem driven by a blend of “principled” and instrumental concerns. Human rights have also begun to be explicitly featured in a number of Poverty Reduction Strategy Papers (PRSPs) and, less frequently, Bank staff appraisals, in addition to country analytical work, assistance strategies and portfolio performance reviews. While these are the exceptions rather than the norm, the Bank’s “Country Policy and Institutional Assessment” (CPIA) tool, a rating instrument for annual assessments of the quality of policy and institutional performance of International Development Association (IDA) client countries, includes indicators for gender equality, as well as CEDAW ratification and implementation.’ See Darrow. 120 See Oestreich. 121 Dfid document. 122 Ibid. 123 SDC’S Human Rights Policy: Towards A Life in Dignity Realising Rights for Poor People (Swiss Agency for Development and Cooperation, 2006).

Realising human rights obligations 295 A strategy document of the German Federal Ministry for Economic Cooperation and Development (BMZ) which focuses on human rights mainstreaming is given the status of binding in nature.124 Alston has recently commented that the biggest single obstacle to better integrate human rights into the work of the World Bank is ‘the anachronistic and inconsistent interpretation of the “political prohibition” contained in the Bank’s Articles of Agreement.’125 The World Bank has big shoes to fill in context of human rights–based development programming in comparison to its bilateral contemporaries.

Concluding remarks Rights talk is above all talk of politics, of power and of social justice. It is talk that inspires and impassions, talk that animates and mobilises, talk that restores to people a sense of their agency and their rightful claim to dignity and voice.126

Accepting the fact that the world is flat,127 the World Bank must, however, understand that the countries’ individualities also exist. The Bank must stop using a strait jacket formula in adopting strategies for recipient countries. Adaptability is an essential of HRBA, which the Bank does not acknowledge, as seen in this CPS. Thus, it can be said that in order to holistically adopt a HRBA, the Bank must respect the diversity of each member/recipient country and take into account their cultural differences. Although the World Bank has broadly accepted human rights ideas and is beginning to adopt them into their work, Roth remarks that the time has come to internalise and explicitly use human rights terms.128 Applying a human rights lens to the World Bank implies admittance that it is not a neutral bystander, but part of a political process.129 Sridhar notes that in the wake of globalisation, an understanding of the operation of institutions and geopolitics is necessary to understand the plight of poor people. She suggests that ‘this research needs to take place at multiple levels, starting at the designers of the policy . . . moving to the frontline implementers of the policy and finally to the beneficiaries themselves.’130 A suggestion could be to establish an inward screening mechanism to prevent any human rights negative repercussion of the activities of the Bank. Currently, the Inspection panel, although not being an

124 Human Rights in German Development Policy: Strategy Paper 4, 2011. 125 Available at www.un.org/en/ga/search/view_doc.asp?symbol=A/70/274. Last Accessed 28 March 2019. 126 See Cornwall and Nyamu-Musembi. 127 Thomas Friedman, The World is Flat (New York: Farrar Straus Giroux, 2005). 128 Kenneth Roth, ‘Operationalizing Human Rights: The Challenge for Development Organizations’ in note 77. 129 See Kirk. 130 See Sridhar.

296  Bhumika Modh and Uma Mahesh Sathyanarayan adjudicatory body like a court, does the function of reviewing projects after they have been sanctioned by the Bank; an inward screening mechanism would ensure the human rights compatibility of the projects before they are implemented. A human rights analysis involves raising questions concerning the relationship between rights-holders and duty-bearers, thinking in terms of policy, structure, inequity, exclusion, and discrimination as well as power and politics.131 Darrow outlines the benefits that the ‘rights consciousness’ provides against discrimination basis of caste and gender, mobilising ‘social consensus’ on the entitlement of equal access to quality elementary education.132 Realising human rights needs a long-term change, adapting good governance and implementing mechanisms that guarantee basic standards of living a non-discriminatory basis as a right.133

131 See Kirk. 132 See Darrow. 133 See Kirk.

Index

Page numbers in italics indicate figures; page numbers in bold indicate tables. Aam Aadmi Party 222 ‘Access to Justice’ concept 83, 84 ‘Access’ to legal system 82 Acharya, S. K. 25 acid attacks 179 – 180; business and human rights norms 200 – 203, 204; businesses and 197 – 199, 203; causes and consequences in India 181 – 184; corporate accountability for 197; duty to investigate 192 – 193; duty to prosecute and punish perpetrators 194; duty to protect victims 193 – 194; enacting laws combating violence of 187 – 191; ensuring implementation of laws 191 – 192; gender-based violence 185 – 187; India’s due diligence to combat 184 – 187; providing redress to victims 195 – 196 Acid Control Act (ACA) 190 – 191 Acid Crime Control Act (ACCA) 190 Acid Survivors Foundation India (ASFI) 183 African Charter on Human and Peoples’ Rights 82, 82n14 Ahmedabad (Shah) 141 Akhil Bharatiya Vidyarthi Parishad (ABVP) 5, 5n10 Alavi, Hamza 118 All-India Civil Liberties Conference 27 All-India Civil Liberties Council 9, 29, 33, 34 All India Trade Union Congress 29 Almitra Patel (2000) 57 Aluminum Refinery Project 238 Ambani, Anil 130

Ambedkar, B. R. 109 – 110, 124 American Civil Liberties Union (ACLU) 3 – 5, 7 – 9, 30 American Convention on Human Rights 82, 82 – 83n16 American Psychiatric Association 165 American Supreme Court 26 Amnesty International 81, 106, 133n52 – 53, 207 Anand, Mulk Raj 10 anti-terrorism legislation: judicial review of 61 – 62 Appadurai, Arjun 249, 250n73, 250n74 Aristotle 276 Armed Forces (Special Powers) Act 44, 56, 62 – 64 Atomic Energy Act (1962) 217 Atomic Energy Regulatory Board (AERB) 216 Austin, Granville 29n54 – 55, 57 Azad, Maulana 21 Bachan Singh (1980) 106, 110 – 111 Bajrang Dal 132 Baldwin, Roger 30 Bandhua Mukti Morcha (1984) 52 Ban Ki-moon 129 Banumathi, R. (Justice) 119 Basu, Jyoti 25 Baxi, Upendra 44, 54, 114 Beckett, Samuel 150 Berger, John145 Bhagwati, P. N. (Justice) 51, 52, 54, 107, 114 Bhai, Farooq 129 – 130, 140 – 141, 145, 149 – 150

298 Index Bharatiya Constitution 26 Bharatiya Janata Party (BJP) 5, 121, 123, 125, 132, 135 – 137, 151, 210, 225 – 226 Bhargava, Pandit Thakur Das 109 Bhushan, Ashok (Justice) 119 Bhuwania, Anuj 54 Bickel, Alexander 45 Bidari, Vijayendra 222 Bijoy, C. R. 235 Bombay Civil Liberties Union 32n60 Bombay Public Security Measures Act 10 Bose, Sarat 24 Bowers v Hardwick (1986) 172 Brij Bhushan and Another v The State of Delhi (1950) 8n23, 8 – 9 Burra, Arudra 3 – 36 Bush, George Jr. 217 business and human rights norms, acid attacks 200 – 203 Campaign and Struggle Against Acid Attacks on Women (CSAAAW) 183 Cancer Research Institute 216 Carpenter, Kristen 249 Chagla, M. C. 14 Chakrabarty, Dhritiman 108 Chakrabarty, Sanchayita Paul 108 Chander, Anupam 249 Chandra, Rajshree 230 – 252 Chandrachud, D. Y. (Justice) 159, 160n38, 163 – 164, 166 – 167, 169 – 172, 175 – 178 Charanjit Lal v Union of India (1951) 51 Chatterjee, Arub Prokash 24 Chatterjee, K. P. 24 Chatterjee, Moyukh 134 Chatterjee, N. C. 9 Chatterjee, Somnath 23, 29n54 Chhattisgarh’s security: background for 64 – 66; courts’ response 67 – 69; government’s arguments for 66 – 67; petition 66; reviewing policy for 64 – 69; special police officers (SPOs) for 65 – 69, 74, 76 – 78 Chopra, Surabhi 59 – 79 Citizens for Justice and Peace 142, 146 Civil Liberties Committee, Calcutta 9, 24 Civil Liberty under the New Constitution (Vaze) 28 coercive legalism: ‘conscience of society’ 118 – 120; death penalty and 116 – 118

Commission of Sati (Prevention) Act (1987) 6 Committee on Economic, Social and Cultural Rights (CESCR) 262, 278, 278n31, 289 Communist Party of India (CPI) 25 Conservation of Nature Trust 213 Constitution (Indian), problem of inferring human rights 39 – 41 constitutional democracy 45 constitutional politics: human rights via public interest litigation 50 – 54; inconsistent human rights law 55 – 57; Indian Supreme Court in first phase of judicial review 45 – 48; judicial populism 54 – 55; noninterpretivist second phase of judicial review 48 – 50; study in 45 – 57 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 180, 184 – 185, 187, 191, 203, 294n119 corporate accountability for acid violence 197 corporate social responsibility, acid attacks and 200 – 203 Crimes Against Humanity (Concerned Citizens Tribunal) 142 CrossRoads (magazine) 9 – 10, 13 – 15, 16, 17, 22 – 23; article “Criminal” 10, 14; early cover 12; “Hyderabad Military Government” 10, 13; inaugural issue 11; Madras ban 15, 16 Cullet, Philippe 56, 253 – 271 culture: community 231 Dabholkar, Narendra 6 Dahl, Robert 42n16 Dam, Shubhankar 122 Das, P. R. 26 – 27 death penalty 105 – 107, 124; coercive legalism and 116 – 118; ‘conscience of society’ 118 – 120; importance of 120 – 124; judicial populism and 113 – 116; legal basis for Indian law 107 – 110; Mercy Petitions 111 – 113; in Pakistan 105, 105n2; ‘rarest of the rare’ doctrine 110 – 113 Defence of India Act 25 Delhi High Court (DHC), Naz Foundation in 152 – 154 Delhi Rape Case (2012) 119, 121 demosprudence 54 – 55, 58

Index  299 Desai, Morarji 10 de Souza, Siddharth Peter 80 – 101 Discovery of India (Nehru) 27 dispute resolution 80 – 81; forums for 81, 85 – 91; see also non-state justice systems (NSJS) Dobb, Maurice 10 Douzinas, Costas 230, 231 Dublin Statement (1992) 254 – 255, 257 Dudgeon v United Kingdom (1981) 153n4, 168, 175 Dutta, Nilanjan 24, 29n54 East Punjab Public Safety Act 21 EEVFAM (Extra Judicial Execution Victim Families Association versus Union of India) 59 – 60, 71, 73 – 75, 77 – 79 EEVFAM (Extra Judicial Execution Victim Families Association) 69 – 70, 72 Egan v Canada (1995) 171 Ely, John Hart 46n33 emergency, silent 224, 290 Emergency (1975): authoritarianism during 49; centralisation of Indira Gandhi’s powers 57; Indira Gandhi’s declaration 38, 43 – 45, 58, 223 – 224; Indira Gandhi’s rule 225 emergency powers 56; growth of 114; imposition of 132n44 Endangerment of Life and Liberty (Protection, Prosecution and other measures) Act (2011) 99 Environment (Protection) Act (1986) 208 Environmental Impact Assessment (EIA) Notification 208, 216, 220, 225 Environmental Protection Act (EPA) 240, 241 equality clause 47 European Convention on Human Rights 82, 82n15 European Court of Human Rights (ECtHR) 157, 163, 168 extrajudicial killing in Manipur: background for 70; court’s response 71 – 73; government’s arguments 70 – 71; petition 69 – 70 Fertilizer Corporation (1981) 51 Foreign Contribution (Regulation) Act (2010, FCRA) 225 – 226

Forest Conservation Act (FCA) 240, 241 Forests Rights Act (FRA) 233, 242n55, 252; assigning jurisdiction 237 – 240; features of 236; legal breakpoint 240 – 241; righting indigeneity 234 – 237; speech of law 241 – 243; staking claims 243 – 247; subverting property 248 – 251; title rights 236 Forest Survey of India (FSI) 243 Foucault, Michel 117, 209n6 Francis Coralie v U.T. of Delhi (1981) 52 freedom of expression 5 free speech advocates 3 – 5 Gandhi, Gopal Krishna 110 Gandhi, Indira: centralisation of powers 43, 57; Emergency declaration 38, 43 – 45, 58, 223 – 224; emergency rule 225; imposition of emergency 132n44 Gandhi, Mahatma 23, 110 Gandhi, Maneka 121 Gandhi, Mohandas Karamchand 212, 224 gender-based violence: acid violence 179 – 180, 185 – 187; see also acid attacks General Electric (GE) 198 Ghosh, Amitav 149 Global Gender Gap Index 185 Godhra: flashpoint for violence 126; post-Godhra riots 127; training burning 125, 126 – 127, 137; see also Gujarat pogrom (2002) Golak Nath v State of Punjab (1963) 47 – 48 good governance 285 – 288; accountability 286; nondiscrimination 287 – 288; participation 287; transparency 286 – 287 Gowda, H. D. Deve 209 Gowen, Annie 122 Gram Nyayalayas: dispute resolution forum 81, 86 – 87; human rights in operation in 96 – 97; operation through legislation 90 Gram Nyayalayas Act (2008) 86 Green, Shane 251 Greenpeace India 226 Greenwald, Glenn 4 Gudavarthy, Ajay 43 Gujarat pogrom (2002): charred roseleaf 140 – 143; Godhra train

300 Index burning 125, 126 – 127, 137; online search of 127 – 128; photographs 144, 145, 146, 147, 148; recollection of 131 – 140; remembering and mourning 149 – 151; storytelling atrocity 129 – 131; tragedy of repetition 125 – 129; violating the solitude 143 – 149 Gulberg Society 125, 129, 140 – 143, 146, 149 – 150; entrance to 144 Gupta, Atul Chandra 30 Gupta, Nares Chandra Sen 30, 31 habeas corpus 51 Habermas, Jürgen 45, 45n29 Harm in Hate Speech, The (Waldron) 8n21 Hindu Mahasabha 9, 17 – 18, 23, 24, 26 Hindu Right 3n1, 131, 135 – 136, 139, 142 Hindus: recollection of Gujarat (2002) 131 – 140; see also Gujarat pogrom (2002) HIV/AIDS 153, 161, 167, 277n26, 294n119 human rights: challenges of mainstreaming into World Bank 293 – 295; critique of World Bank’s country partnership strategy (CPS) 285 – 292; HRBA (human-rights based approach) for operationalisation 278 – 280; HRBA to development 277 – 278; India’s movement 42 – 44; integrating into development work 280, 281; normative framework for economic, social and cultural rights 279; right to education 279, 288 – 289; right to food 279, 290 – 291; right to highest attainable standard of health 279, 289 – 290; right to housing 279; right to social security 279; right to water 279; right to water and sanitation 291 – 292; right to work 279; World Bank and HRBA 282 – 283; World Bank’s country partnership strategy (CPS) 283 – 285; see also water; World Bank Human Rights Acts 39n7 Human Rights Alert 69, 70, 72 Human Rights Commission (1953) 30 human rights law (India): inconsistent 55 – 57; judicial review of 57 – 58; problem of inferring 39 – 41; public

interest litigation 50 – 54; typical narrative of 38 – 39 Human Rights Movement (HRM) 42 – 44 human rights standards: lessons using non-state justice systems (NSJS) 100 – 101; NSJS and 91 – 93 Human Rights Watch 127 – 128, 141 Hussain, Nasser 114 Hussainara Khatoon v Home Secretary, State of Bihar (1979) 51 India: human rights movement 42 – 44; as world’s largest democracy 207 – 208 Indian Civil Liberties Union 43 Indian Constitution: fundamental rights 39 – 40n8; human rights in 39 – 41 Indian Councils Act (1861) 122 Indian Penal Code (IPC) 8, 34, 108, 121, 123, 152, 163, 173, 181, 183, 208, 223 Indian People’s Theatre Association (IPTA) 10 Indian Psychiatric Society 165 – 166 indigenous peoples, term 232 Indira Gandhi v Raj Narain (1975) 48 Inter-American Court of Human Rights 192 International Atomic Energy Agency (IAEA) 208, 216 International Council on Human Rights Policy (ICHRP) 92 International Covenant on Civil and Political Rights (ICCPR) 92, 92n84, 231n8, 232, 232n10, 288 International Covenant on Economic, Social and Cultural Rights (ICESCR) 195n115, 231n8, 278, 288 International Covenants 40, 40n9 International League for the Rights of Man 30 International Treaty of Plant Genetic Resources for Food and Agriculture (ITPGRFA) 231 Jafri, Ehsan 141 – 143, 146 Jafri, Zakia 138, 140 – 142, 143n103 Jan Adhikar Samiti 17 Janata Party 43, 44, 49 Jayalalithaa, Jayaraman 221 John, Rebecca 111 Joshi, N. M. 9, 29 judicialisation of politics 39

Index  301 judicial populism 54 – 55; death penalty and 113 – 116 judicial review: anti-terrorism legislation 61 – 62; human rights law 57 – 58; Indian Supreme Court in first phase 45 – 48; military policing legislation 62 – 64; national security laws 60 – 64; noninterpretivist second phase of 48 – 50; problem of inferring human rights 39 – 41; strong system of 38 – 39; types in India 41 – 42 Jungk, Robert 209 jurisprudence 54 juristocracy 39 Juss, Satvinder 105 – 124 Juvenile Justice Bill 34 Kakade, R. G. 29 Kalantry, Sital 179 – 204 Kapoor, Shri Jaspat Roy 109 Kartar Singh v State of Punjab (1994) 56n93, 60 – 62, 73 Kathua Rape Case (2018) 121 – 122 Kaur, Raminder 207 – 227 Keenan, Sarah 237 Kejriwal, Arvind 222 Keshavananda Bharati v State of Kerala (1973) 48, 49 Keshavananda Bharati v Union of India (1973) 41, 45 Kestenbaum, Jocelyn Getgen 179 – 204 Khan, Imtiaz 129, 140 – 143, 145 – 146, 148, 150 Khan, Liaquat Ali 17, 19 Khanwilkar, A. M. (Justice) 160n38, 162, 164 – 166, 168 – 169, 171 – 172, 175, 178 Khap Panchayats: dispute resolution forum 81, 89; human rights in operation in 98 – 100; informality of 90 – 91 Khoshal, A. D. 51 Koushal v Naz Foundation (2013) in two-judge Supreme Court 154 – 156 Kovind, Ram Nath 115n49 Krishna Iyer, V. R. (Justice) 51, 54, 107, 114 Kudankulam Nuclear Power Plant 209 – 210, 210, 211, 214 – 216, 218 – 220, 224, 226 Ku Klux Klan 3, 4n2 Kundera, Milan 148

Lalmohan, Samuel 215 Land Acquisition Act (2013) 244 Land Acquisition Resettlement and Rehabilitation (LARR) Act (2013) 245 Landau, David 53 Last Utopia, The (Moyn) 42 Law Commission of India 80, 86, 87, 99, 106, 115, 124, 187, 187n57 Lawrence & Garner v Texas (2003) 168 – 169, 172, 178 Laxmi Kant Pandey (1984) 54 Laxmi v Union of India & Ors (2014) 189 – 190 Legal Servicers Authorities Act (1987) 85 legal system, ‘Access’ to 82 LGBT (lesbian, gay, bisexual, transgender) human rights: Koushal in two-judge Supreme Court of India (SCI) 154 – 156; NALSA in two-judge SCI 156 – 158; Navtej Singh Johar in five-judge SCI 152, 160 – 172; Naz Foundation in Delhi High Court (DHC) 152 – 154; Puttaswamy in nine-judge SCI 158 – 160; steps in LGB law reform 173, 174B; see also Navtej Singh Johar & Others v Union of India (2016) Life of Pi (film) 119 limited community 231 Lohia, Rammanohar 33 Lok Adalats: dispute resolution forum 81, 85 – 86; human rights in operation in 93 – 96; operation through legislation 90 Machii Singh v State of Punjab (1983) 111, 118 Madhok, Baloraj 17 Madras Civil Liberties Union 27, 28, 31, 32n60 Maharashtra Anti-Superstition Ordinance 34 Maharashtra Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act (2013) 6 Mahiwal, Swati 121 Maintenance of Internal Security Act 43 Majhi, Bhim 239 Majhi, Dai Singh 239 Malhotra, Indu (Justice) 160n38, 162, 164 – 166, 168 – 170, 172, 176 – 177 Malkani, K. R. 19, 22 – 23

302 Index Maneka Gandhi 52 Manipur see extrajudicial killing in Manipur Maoist groups 65, 67 – 68, 227 Marxist-Leninist movements 44 Maus (Speigleman) 150 May, Theresa 164 Mehta, Pratap Bhanu, 55 Mehta, Uday 34 – 35 Mercy Petitions 111 – 113 Merrill, Thomas 248 military policing legislation, judicial review of 62 – 64 Millennium Development Goals 276 MISA (Maintenance of Internal Security Act) 224 Mishra, Dipak (Justice) 119, 120 Misra, Dipak (Chief Justice) 162, 164 – 166, 168 – 169, 171 – 172, 175, 178 Modi, Narendra 5, 120, 123, 125 – 126, 130, 135, 141, 143n103 Mookerjee, Syama Prasad 9, 17 – 18, 18n36 – 37, 23, 29 Mouffe, Chantal 40 Moyn, Samuel 42, 43, 50 Mukhopadhaya, Sudhansu Jyoti (Justice) 154 Mulla, A. N. (Justice) 24 Muralidhar, S. (Justice) 153 Muslims: recollection of Gujarat (2002) 131 – 140; see also Gujarat pogrom (2002) Naga People’s Movement of Human Rights v Union of India (1998) 56n93, 61, 63, 73 – 74 Naik, Bansidhar 246 Nandini Sundar v State of Chhattigarh (“Sundar”) 59 – 60, 74 – 79 Naravan, Jayaprakash 43, 43n19 Nari Adalats: dispute resolution forum 81, 88 – 89; human rights in operation in 97 – 98; operation with formal recognition 90 Nariman, R. F. (Justice) 160n38, 162 – 163, 165, 169, 171 – 172, 175 Narmada Bachaho Andolan (NBA) 214, 274 Narmada Bachao Andolan (2000) 57 National Commission for Protection of Child Rights 75 National Commission for Women (NCW) 187, 193 National Crime Records Bureau 122

National Democratic Alliance 132 National Human Rights Commission (NHRC) 66, 68, 73, 75, 193, 216, 217 National Legal Services Authority (NALSA) v Union of India (2014): in two-judge Supreme Court 156 – 158 National Rural Drinking Water Programme 256 National Security Act 56, 218 national security laws: anti-terrorism legislation 61 – 62; background of 60 – 61; judicial review of 60 – 64; military policing legislation 62 – 64; reasoning about rights 76 – 77; Supreme Court (India) cases 59 – 60; see also Chhattisgarh’s security National Water Policy (2012) 255 Navtej Singh Johar & Others v Union of India (2016) 152, 160 – 172; conclusions and remedies 172; constitutional protection of minorities 162 – 163; five-judge Supreme Court of India (SCI) 160 – 172; future application in criminal law 173 – 178; impact in India beyond criminal law 173 – 178; international and comparative law 163 – 164; justifications for criminalisation 171 – 172; living constitution 164; rights to dignity and privacy 166 – 167; right to equality 168 – 171; right to freedom of expression 168; right to health 167 – 168; sexual orientation activity and choice 165 – 166; social change 164; steps in LGB law reform 173, 174; see also LGBT (lesbian, gay, bisexual, transgender) human rights Naz Foundation 160; in Delhi High Court (DHC) 152 – 154; Koushal v Naz Foundation (2013) 154 – 156 N.D. Dayal (2003) 57 Nehru, Jawaharlal 17 – 19, 31n58, 46, 47, 57 Nehru, Pandit 27 Nehru-Liaquat Act 1818 Neruda, Pablo 10 Nilsen, Alf Gunvald 214 noninterpretivist phase, judicial review 46, 46n33, 48 – 50 non-state justice systems (NSJS) 81; engaging with 81 – 85; forums, compositions and procedures 85 – 91; Gram Nyayalayas 81, 86 – 87, 96 – 97;

Index  303 human rights in operation in 93 – 101; human rights standards 91 – 93; Khap Panchayats 81, 89, 98 – 100; lessons on human rights in practice in 100 – 101; linkages and relations to state 89 – 91; Lok Adalats 81, 85 – 86, 93 – 96; Nari Adalats 81, 88 – 89, 97 – 98 Novak, Andrew 105 nuclear emergency 219 nuclear nationalism 214 nuclear power 208; cross currents 212 – 214; energy option 208; Kudankulam Nuclear Power Plant 209 – 210, 210, 211; right to know and be heard 217 – 220; right to peaceful protest 220 – 225; sublime culs-de-sac 214 – 217 Nuclear Power Corporation of India Limited (NPCIL) 209, 216, 218, 220 Nussbaum, Martha 128 Obergefell v Hodges (2015) 178 Official Secrets Act (1923) 217 – 218 Olga Tellis (1985) 52 Organiser (magazine) 15, 18 – 25 Orientalism (Said) 116 Orissa Forest Act (OFA) 240 Orissa Mining Corporation (OMC) 239 – 240, 240n43, 241, 248 Padmanabhan, V. T. 219 Pakistan: acid attacks in 199; death penalty in 105, 105n2 Panchayat (Extension to Scheduled Areas) Act (PESA) 234, 234n22, 245 – 247 paradox 45, 45n29 paradox of liberal democracy 40, 40n11 parallel justice systems 80 – 81; see also non-state justice systems (NSJS) parliamentary sovereignty 45 Patel, Duble Singh 246 Pathak, R.S. 51 People’s Movement Against Nuclear Energy (PMANE) 210, 220 – 222, 224, 226 People’s Union for Civil Liberties (PUCL) 32n61, 34, 43, 53, 53n74, 239 People’s Union for Civil Liberties v Union of India (“PUCL”) (2004) 61 – 62, 73 People’s Union for Civil Liberties v Union of India & Ors (2001) 53 personhood 231

Phelps, Fred 4 – 5 Pillai, A. K. 31 Pillai, Navi 113 populism, judicial 54 – 55 post-colonialism 116, 118, 118n58 Poverty Reduction Strategy Papers 276, 283 Prasad, Sarju (Justice) 24 Pratap, Bhanu 247 Press (Emergency Powers) Act of 1931, 8 Prevention of Sati (Glorification) Act 33 Prevention of Terrorism Act (POTA) 61 – 62, 77 – 78 Progressive Artist’s Group 15 Progressive Writer’s Association 15 property: concept 249; frame of subversive 250n74; subverting 248 – 251 Protection of Children Against Sexual Offences Act (POCSO) 121, 123 – 124 Protection of Human Rights Act (1993) 40 public interest litigation, human rights via 50 – 54 “Public Safety” Act 8 Pushparayan, M. 221 Putin, Vladimir 210 Puttaswamy v Union of India (2012) in nine-judge Supreme Court 158 – 160, 166 Radhakrishnan, K.S. (Justice) 156 Rajagopal, Balakrishnan 44 Rajbala v State of Haryana (2015) 55 Rajguru 108 Ramesh, Jairam 240 ‘rarest of the rare’ doctrine 110 – 113; see also death penalty Rashtriya Swayamsevak Sangh (RSS) 132 Rathia, Mahesh 246 right for rights: anxieties of citizens 212; grassroots resistance 211; lawless state v lawful nation 225 – 227; see also nuclear power righting indigeneity 230 – 231; Forests Rights Act (FRA, 2006) 234 – 237 Right of Persons with Disabilities Act (2016) 196 Rights Autonomy and Process (Craig and Deshpande) 52 rights foundationalists 45 Right to Information (RTI) Act (2005) 217 – 218

304 Index Right to Information Act (2005) 208 right to rights, public consultation and information 208 – 209 riots see Gujarat pogrom (2002) Romesh Thappar vs The State of Madras (1950) 8n23, 8 – 9 Rose, Jacqueline 151 Roy, Arundhati 5 Rudolph, Lloyd 49 Rudolph, Susanne 49 Ruparelia, Sanjay 208 Saha, Meghnad 24 Sahni, Balraj 10 Said, Edward 116 Saikumar, Rajgopal 37 – 58, 105n1, 113 – 115 Salwa Judum groups 65 – 67, 69 Satija, Bhanvi 122 saving clause 46 Schmitt, Carl 209 sectarianism 23, 24n45 security: abdication, assertion and lineholding 73 – 78; see also Chhattisgarh’s security; extrajudicial killing in Manipur; national security laws Selvaraj, R. 221 Selvi v State of Karnataka (2010) 55 Sengar, Kuldeep Singh 122 Servants of India Society 28 Setalvad, M. C. 25 Setalvad, Teesta 126, 142 Shadow Lines, The (Ghosh) 149 Shah, Ajit Prakash (Chief Justice) 153 Shah, Amit 5 Shah, Amrita 141 Shah, M. B. (Justice) 113 Shah Alam refugee camp 150 Shatrughan Chauhan vs. Union of India (2014) 112 Sherman, Taylor 117 Sidar, Shatrughan 246 Sikaka, Lodu 238 Sikri, A.K. (Justice) 156 silent emergency 224, 290 Singh, Babu Gaya Prasad 108 Singh, Bhagat 108 Singh, Bhrigupati 140 Singh, Jyoti 119, 188 Singh, Shri Mahaveer 193 Singhvi, G. S. (Justice) 154 Sircar, Oishik 125 – 151 Snyder, Mathew 5 Sontag, Susan 148

special police officers (SPOs): security in Chhattisgarh 65 – 69, 74, 76 – 78 speech of law 241 – 243 Speigleman, Art 150 S.P. Gupta v Union of India (1982) 51 Sterlite Industries India Limited (SIIL) 239 Sukhdev 108 Sundar, Madhavi 249 Supreme Court (India) 37; first phase of judicial review 45 – 48; human rights via public interest litigation 50 – 54; narrative of human rights law 37 – 38; national security cases 59 – 60; reasoning about rights 76 – 77; security legislation 73 – 78; types of judicial review 41 – 42 Sustainable Development Goals 276 Swamy, Subramaniam 4, 4n5, 34 Tapper, James 122 Tata Housing Development Company (2003) 57 Terrorist and Disruptive Activities (Prevention) Act (1987) (TADA) 43, 60 – 62, 78 Thapar, Romesh 9 – 10, 14, 32 Thiruvengadam, Arun 44 Thomas, Maria 119, 122 Togadia, Pravin 4 Udayakumar, S. P. 213, 215, 217 – 218, 220 – 224, 226n46 UN Convention on Biological Diversity (CBD) 230, 232 – 233 United Nations Development Programme (UNDP) 82, 88, 92, 272, 286 United Nations Environment Programme (UNEP) 215 United Nations High Commissioner for Human Rights 277 United Nations Human Rights Committee 168 United Progressive Alliance 226 Universal Declaration of Human Rights (UDHR) 38, 42, 82, 82n13, 252, 293 Unlawful Activities Prevention Act 56 Vasant Sampat Dupare v State of Maharashtra (2015) 115, 116n50 Vashista, Rishi 22 Vassanji, M. G. 140

Index  305 Vaze, S. G. 28 – 29 Vedanta Resources plc 239 – 240 Vishaka 54 Vishwa Hindu Parishad 4, 132, 137 Voltairean sensibility 3, 7, 8n20, 33, 36 Wagner, Kim 117 water: accessing at affordable price 262 – 263; banning disconnections and discrimination in supply of 264 – 265; beyond privatisation 263 – 270; efficiency in policy 261 – 262; ensuring universality for free provision 265 – 268; evolving water policy 257 – 263; fundamental right to 253; privatisation and realisation of right to 257 – 259; public trust and commodification 257 – 261; push for privatisation 262 – 263; reclaiming the right to 268 – 270; recognition and implementation of right to 255 – 257; recognition as human right 254 – 255, 270 – 271 Westboro Baptist Church 4 Wintemute, Robert 152 – 178

women courts, Nari Adalats 81, 88 – 89, 97 – 98 World Bank 84, 270; challenges of mainstreaming human rights into 293 – 295; country partnership strategy (CPS) 283 – 285; economic, social and cultural rights 288 – 292; good governance 285 – 288; human rights approach of 273; human rights critique of CPS for India 285 – 292; human rights obligations of 275 – 277; implementation of strategy 292; India and 274 – 275; overview of CPS for India (2013–17) 284 – 285 World Conference on Human Rights (1993) 258 World Health Organization (WHO) 165, 282 Yeltsin, Boris 209 Yogyakarta Principles 157, 163 Zionism 136