Professional Documents
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11(1)
Socio-Legal Review
ISSN 0973-5216
Vol. 11(1)
2015
ARTICLES
Sanaa Ahmed
Shishir Bail
BOOK REVIEW
2015
Ashwita Ambast
SOCIO-LEGAL REVIEW
Vol. 11(1)
2015
BOARD OF ADVISORS
HILARY CHARLESWORTH
SANKARAN KRISHNA
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TEJASWINI NIRANJANA
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ANAND
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PUBLISHED BY THE LAW AND SOCIETY COMMITTEE ,
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EDITORIAL NOTE
On an academic level, the realm of socio-legal is cast wide open. Accordingly,
The Editorial Board of the Socio-Legal Review accepts exemplary scholarship
that demonstrates a perceivable link between law and society. Unfortunately, over
time in India due to limited scholarship in the field, the concept has come to be
encumbered within traditional confines and notions. Thus, several areas of law
and issues are omitted from useful and telling inquiries under the socio-legal lens.
The endeavour of the Socio-Legal review this year has been to explore the
unconventional manifestations of the socio-legal amidst issues, which, in India,
have long been considered far removed from this realm. The growing recognition
that even simple private transactions between parties can have deep socio-legal
implications and roots can be attributed to the inextricable manner in which
transactions, issues and instance have come to be linked with one another, thus
adding another dimension to the socio-economic milieu, which the law must
accordingly cater and respond to. These issues prompt inquiries that are dynamic
enough to factor in issues at both a micro and macro policy level.
To best demonstrate this point through this issue, Mr. Abhayraj Naik, In
Wizards At Making A Virtue Of Necessity: Street Vendors In India, employs the
issue of regulation of street vendors in India to prompt us to slow down and
examine how the use of public spaces in India has been reoriented owing to
urbanism, consumerism and commodification.
In a similar vein, Sanaa Ahmed in The Politics of Financial Regulation, analyses
the regulatory measures that have followed the Economic Recession of 2008 from
a political lens. She argues that beneath the copious technical jargon, these measures
are rooted in exerting a certain amount of political control over the global economy
and discusses the possible implications of such control to raise pertinent questions
of accountability and legitimacy and the way forward.
Ms. Shylashri Shankar in Judicial Restraint in an Era of Terrorism: Prevention
of Terrorism Cases and Minorities in India, evaluates how the Apex Court in India
has fared in preserving traditional notions of rule of law, due process and individual
liberty in the face of exigencies of the modern state. In particular, she analyses the
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every author who has contributed to this journal. Additionally, we would also
extend our heartfelt gratitude to the members of the Editorial Board of previous
years, in particular years 2010-13, for guiding us throughout and answering every
query, big or small at any time of the year. And lastly, to the institutional support
we get from law school- Professor Sarasu Thomas, our faculty advisor, for her
support and patience. We must also place on record our thanks for enthusiasm of
our Vice Chancellor, Dr. Venkata Rao in taking the issues from strength to strength
as well as the staff at his office, in particular Ms. D.S. Usha, for helping out with
the logistical aspects of publishing.
We look forward to our readers comments on the issue that can be taken
forward by the succeeding and promising Editorial Board of the year 2015-16.
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SOCIO-LEGAL REVIEW
Vol 11(1)
2015
CONTENTS
ARTICLES
Wizards At Making A Virtue Of Necessity: Street Vendors In India
Abhayraj Naik ...................................................................................................... 1
The Politics of Financial Regulation
Sanaa Ahmed ..................................................................................................... 61
Gram Panchayats to Gram Nyayalays: The Indian State and Rural Justice
Shishir Bail ......................................................................................................... 83
Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases
and Minorities in India
Shylashri Shankar ............................................................................................ 103
BOOK REVIEW
Critical International Law: Postrealism, Postcolonialism And Transnationalism
Ashwita Ambast .............................................................................................. 133
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Azim Premji University, Bengaluru, and Environment Support Group, Bengaluru. Earlier
versions of this essay were presented at Azim Premji University (Bengaluru) and the International
Society of Public Law (ICON-S) 2014 conference on Rethinking the Boundaries of Public Law
and Public Space in Florence, Italy. An early stage essay, which this full-length essay updates and
builds upon, was published on the National Association of Street Vendors of India (NASVI)
website, on the Law, Governance and Development Initiative (LGDI) blog in 2013, and was
included in part in a 2012 report on street food vending and competition law prepared by the
Institute of Social Studies Trust, New Delhi. In particular, I am grateful to Ganesh Trichur, Luigi
Russi, Atreyee Majumdar, Uday Khare, Ratna M. Sudarshan, Renana Jhabvala, Bhargavi S. Rao,
Leo Saldanha, Anil Sethi, Navdeep Mathur, Sudhir Krishnaswamy, Mukta Naik, Mathew Idiculla,
Sonal Sharma, Vishnupad, Sharath Chandra Ram, Rachel Chenchiah, an anonymous reviewer
of this journal, and the students of the Human Rights Clinic at Azim Premji University for
comments on earlier versions of this essay and for many discussions on this topic. The editors of
the Socio-Legal Review displayed truly heroic patience and genuine understanding at all levels of
this writing enterprise. I retain responsibility for the views contained here and for any errors
that might have inadvertently crept in.
INTRODUCTION
Street vending is ambivalent in Indias imagination of law, space, and self. The
Tamil epic poem Cilappatikram (estimates of when this was written date back at
least 1500 years) includes a detailed description of the vibrant presence of street
vendors in Pukr (the Khaberis of Ptolemy), the then capital of the Chola empire,
during the Festival of Indira.1 More recently, Satyagraha (literally translated as
truth-force), the non-violent civil resistance perfected by Mohandas Karamchand
(Mahatma) Gandhi, had amongst its earliest practitioners, hundreds of satyagrahi
street vendors who peacefully courted arrest in South Africa in response to the
discriminatory provisions of the (Transvaal) Asiatic Registration Act, 1907.2 In
1937, the District Magistrate was advising City Magistrates of Kanpur to adopt
ruthless measures to prosecute, fine, displace and dispossess offending hawkers,
vendors, transport pliers and carters, artisanal workmen who worked at the
roadside.3 In independent India, the phenomenon of street vending has been the
subject of several decisions of the Supreme Court and of numerous state High
Courts, apart from also featuring in a number of national policies, state-level and
city-level laws, and municipal regulations. Recently, the Street Vendors (Protection
of Livelihood and Regulation of Vending) Act, 2014 a national law
unambiguously recognised urban street trade as a legitimate but regulated activity
across India.
This essay attempts to excavate street vending in India as an interstice: an enquiry
directed towards how street vending is entangled with specific theoretical
and ideological positions concerning culture, citizenship, commodification,
consumption, globalization, legality, modernity, neoliberalism, poverty, politics,
public space, and social movements. Levesque, in a useful synoptic overview
of the relevant conceptual literature, points out that depending on the point of
view,
interstices can be associated, on the one hand, to absence, interruption
and interpolation (Gallet 2002), breaks, dislocations and disjunctions
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See DAVID HARVEY, SOCIAL JUSTICE AND THE CITY, 23 (2009). Harveys seminal work explores this
central, overwhelming, and unchanging concern with social process and spatial form through an
exploratory analysis of four fundamental interlocking themes: the nature of theory, the nature of
space, the nature of social justice, and the nature of urbanism.
For example, Gyan Prakash points out that the urban turn offers an opportunity to revise the
history of Indian modernity, to bring into view spaces of power and difference suppressed by the
historicist discourse of the nation. See Gyan Prakash, The Urban Turn, in SARAI READER 2002:
THE CITIES OF EVERYDAY LIFE 6 (2002).
Scholars such as Chatterjee, Kaviraj, Nandy and Chakrabarty, amongst others, have persuasively
argued for the importance of carefully studying the shapes, forms, and practices of postcolonial
urban politics in India while avoiding the pitfalls of a Western, reductionist, singular, and
universalized conceptualization of modernity and its associated political norms for urban sociality.
See for example, PARTHA CHATTERJEE, LINEAGES OF POLITICAL SOCIETY: STUDIES IN POSTCOLONIAL
DEMOCRACY (2009); Sudipta Kaviraj, Filth and the Public Sphere: Concepts and Practices about
Space in Calcutta, 10(1) PUBLIC CULTURE 83-113 (1997); Ashis Nandy, Introduction: Indian
Popular Cinema as the Slums Eye View of Politics, in THE SECRET POLITICS OF OUR DESIRES:
INNOCENCE, CULPABILITY AND INDIAN POPULAR CINEMA (1998); DIPESH CHAKRABARTY, RETHINKING
WORKING-CLASS HISTORY: BENGAL 1890-1940 (1989).
See Henri Lefebvre, The Right to the City, in WRITINGS ON CITIES, 147-159 (Eleonore Kofman &
Elizabeth Lebas trans. and eds.,1996); DAVID HARVEY, REBEL CITIES FROM THE RIGHT TO THE CITY
TO THE URBAN REVOLUTION (2012); Marianne Morange & Amandine Spire, A Right to the City in
the Global South?, METROPOLITICS (April 17, 2015), http://www.metropolitiques.eu/A-Right-tothe-City-in-the-Global.html ; LOCATING RIGHT TO THE CITY IN THE GLOBAL SOUTH (Tony Roshan
Samara et al eds., 2013); UNESCO, URBAN POLICIES AND THE RIGHT TO THE CITY IN INDIA RIGHTS,
RESPONSIBILITIES AND CITIZENSHIP (MarieHlne Zrah et al eds., 2011).
For conceptual explorations of spatial justice, see HARVEY, supra note 6; ANDREAS PHILIPPOPOULOSMIHALOPOULOS, SPATIAL JUSTICE: BODY, LAWSCAPE, ATMOSPHERE (2014); and the collection of articles
in the volumes (2009 2015) of justice spatiale | spatial justice, available at http://www.jssj.org.
Edward Soja, for example, reminds us that critical spatial thinking today hinges around three
principles: a) the ontological spatiality of being (we are all spatial as well as social and temporal
beings); b) the social production of spatiality (space is socially produced and can therefore be
socially changed) and; c) the socio-spatial dialectic (the spatial shapes the social as much as the
social shapes the spatial). See Edward W. Soja, THE CITY AND SPATIAL JUSTICE (Sophie Didier and
Frdric Dufaux trans., September 2009), SPATIAL JUSTICE, http://www.jssj.org.
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While this essay focuses on an admittedly eclectic range of themes and categories
of analysis, the hope is that the reader is nonetheless left with a sense of what is at
stake and what must be considered in ongoing discussions on market reforms,
public space, urbanism, informality and urban street vending in India. I do not
attempt to provide explicit answers; the endeavour is focused more on raising
questions, reviewing and selectively juxtaposing the relevant literature, and on
promoting critical thinking on a set of interlinked discursive arenas.
OCCUPYING URBAN PUBLIC SPACE
In a rare break from conservatism in urban political expression, the Edinburgh
City Council on 24th November, 2011 formally voted to recognise the occupation
of St. Andrew Square, in the citys historic financial quarter, in a motion put
forward by Green candidate Maggie Chapman. The city council recognised the
aims of the Occupy movements throughout the world and [did] understand that
they are an attempt to redirect economic decisions to be more orientated toward
the poor and disenfranchised which is a sentiment the Council endorses.11
Recent spontaneous peoples protest movements in Athens, Bangkok, Barcelona,
Berkeley, Cairo, Hong Kong, Istanbul, Madrid, New Delhi, New York, Rio de
Janeiro, Wisconsin etc. (and the Arab Spring protests across Tunisia, Egypt,
Libya, Yemen, Bahrain, Syria, Algeria, Iraq, Jordan, Kuwait, etc.) often began
with, or transformed into, protests on, and occupation of, public squares in cities
(some reports suggest that the Arab Spring in Tunisia was sparked by the selfimmolation of a street-vendor protesting harassment by governmental officials).12
The European economic crisis, which over the past few years has seen public
protests in streets, parks, universities and parliaments across major European cities,
has recently resulted in the partial victory of Spains indignados in municipal and
regional elections.13 Amongst the unfortunate victims of the 7th September 2011
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The issues of governance and public service delivery in Delhi are complex. We believe they can
be addressed only through the idea of Swaraj, which means self-governance, not merely good
governance. In real terms it means that people would, and must, have a significant say in policies
that affect their lives and not limit themselves to casting their votes once every five years. See,
AAP ManifestoDelhi Assembly Elections 2015, A AM A ADMI P ARTY , http://
www.aamaadmiparty.org/AAP-Manifesto-2015.pdf.
E. F. SCHUMACHER, SMALL IS BEAUTIFUL: A STUDY OF ECONOMICS AS IF PEOPLE MATTERED 4 (1973).
For Gandhi, [t]he distinguishing characteristic of modern civilization is an indefinite multiplicity
of wants, whereas ancient civilizations were marked by an imperative restriction upon and a
strict regulating of those wants. See, Choice Before Us, YOUNG INDIA (2 June 1927), in 38 THE
COLLECTED WORKS OF MAHATMA GANDHI (ELECTRONIC BOOK) 483 (1999).
"The totality of these relationships of production constitutes the economic structure of society,
the real foundation, on which arises a legal and political superstructure and to which correspond
definite forms of social consciousness. The mode of production of material life conditions the
general process of social, political and intellectual life. It is not the consciousness of men that
determines existence, but their social existence that determines their consciousness Changes in
the economic foundation sooner or later lead to the transformation of the whole immense
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Sweden in 2013 alone) look more and more like the prior tremors for
a coming earthquake that will make the post-colonial revolutionary
struggles of the 1960s look like childs play. If there is an end to
capital, then this is surely from where it will come and its immediate
consequences are unlikely to prove happy for anyone.27
It is evident that our cities have become strategically crucial arenas in which
neoliberal forms of creative destruction have been unfolding and where myriad,
often interstitial counter-responses have been recently surfacing. A careful analysis
of the urbanisation of neoliberalism and of the link between neoliberalisation,
urban policy and injustice in the [Indian] city is urgently required.28 As Peck,
Theodore, and Brenner perceptively point out, the
...institutional landscape of neoliberal urbanism is consequently a
churning, dynamic one, the continued turbulence of which is reflective
of neoliberalisms contradictory creativity its capacity to repeatedly
respond to endemic failures of policy design and implementation
through a range of crisis-displacing strategies, fast-policy adjustments,
and experimental reforms One of the keys to the transcendence of
neoliberalism is, therefore, the construction of new forms of urban
solidarism, between as well as within cities.29
Identifying a systematic transformation in the pattern of land ownership in cities
which has serious implications for equity, democracy and rights, Saskia Sassen
points out that the
27
28
29
DAVID HARVEY, SEVENTEEN CONTRADICTIONS AND THE END OF CAPITALISM 166-167 (2014).
See, Marianne Morange and Sylvie Fol, City, Neoliberalisation and Justice, SPATIAL JUSTICE, (June
6, 2014), http://www.jssj.org and sources cited therein. See also, Neil Brenner and Nick Theodore,
Cities and the Geographies of Actually Existing Neoliberalism, 34(3), ANTIPODE 349-379 (2002);
SPACES OF NEOLIBERALISM URBAN RESTRUCTURING IN NORTH AMERICA AND WESTERN EUROPE
(Neil Brenner and Nick Theodore eds., 2002); CONTESTING NEOLIBERALISM: URBAN FRONTIERS
(Helga Leitner et al eds., 2007). See also, Janaki Nair, Is there an Indian Urbanism, in ECOLOGIES
OF URBANISM IN INDIA: METROPOLITAN CIVILITY AND SUSTAINABILITY (Anne M. Rademacher and K.
Sivaramakrishnan eds., 2013); WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING
GLOBAL (Ananya Roy and Aihwa Ong eds., 2011); INSIDE THE TRANSFORMING URBAN ASIA:
PROCESSES, POLICIES AND PUBLIC ACTIONS (Darshini Mahadevia ed., 2008); THE URBAN POOR IN
GLOBALISING INDIA: DISPOSSESSION AND MARGINALISATION (Lalit Batra ed., 2007).
Jamie Peck et al, Neoliberal Urbanism: Models, Moments, Mutations, 29 SAIS REVIEW 49, 64-65
(2009).
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32
Saskia Sassen, Who Owns the City, in GOVERNING URBAN FUTURES 6 8 (Ricky Burdett et al. eds.,
2014). For a detailed analysis of a similar thrust in land ownership in Bangalore, India with and
through state-promoted digitization of land records, see Solomon Benjamin, Inclusive or Contested:
Conceptualising a Globalised Bangalore, in INSIDE THE TRANSFORMING URBAN ASIA: PROCESSES,
POLICIES AND PUBLIC ACTIONS, supra note 28, at 170-193.
Sassen, supra note 30, at 8.
Lefebvre, Right to the City, in WRITINGS ON CITIES, supra note 9, at 158. See also, Tayyab
Mahmud, Surplus Humanity and the Margins of Legality: Slums, Slumdogs, and Accumulation
by Dispossession, 14 CHAP. L. REV. 1-73 (2010-2011); ANDY MERRIFIELD, THE POLITICS OF THE
ENCOUNTER URBAN THEORY AND PROTEST UNDER PLANETARY URBANIZATION (2013).
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34
35
ASHIS NANDY, AN AMBIGUOUS JOURNEY TO THE CITY THE VILLAGE AND OTHER ODD RUINS OF SELF
IN THE INDIAN IMAGINATION (2001). For attempts to map the urban postcolonial consciousness of
cities in India, see THE OXFORD ANTHOLOGY OF THE MODERN INDIAN CITY (Vinay Lal ed., 2013);
SARAI READER 2002: THE CITIES OF EVERYDAY LIFE, supra note 7; ECOLOGIES OF URBANISM IN INDIA:
METROPOLITAN CIVILITY AND SUSTAINABILITY, supra note 28; RASHMI VARMA, THE POSTCOLONIAL
CITY AND ITS SUBJECTS: LONDON, NAIROBI, BOMBAY (2012); WORLDING CITIES: ASIAN EXPERIMENTS
AND THE ART OF BEING GLOBAl, supra note 28. See generally, DIPESH CHAKRABARTY, PROVINCIALIZING
EUROPE: POSTCOLONIAL THOUGHT AND HISTORICAL DIFFERENCE (2000); GAYATRI CHAKRABORTY
SPIVAK, A CRITIQUE OF POSTCOLONIAL REASON: TOWARD A HISTORY OF THE VANISHING PRESENT (1999).
Kaviraj, supra note 8.
See, Charles Correa, Accountability and Governance, in GOVERNING URBAN FUTURES 41 (Ricky
Burdett et al eds., 2014). See also, Arvind Panagariya, Spaces, Services and the State 39-40; Isher
Judge Ahluwalia, Building Capacity 40-41; D. Asher Ghertner, Uncertain State(s) 46-47, all in
GOVERNING URBAN FUTURES (Ricky Burdett et al eds., 2014).See also, Darshini Mahadevia, Urban
Poverty in India and Post-MDG Framework, in OXFAM INDIA WORKING PAPER SERIES (2013). See
generally, Urbanization, CENTRE FOR POLICY RESEARCH, http://www.cprindia.org/urban.
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39
40
Shail Mayaram, Of Marginality: Poverty, Migration and Memory in the Megacity, 1 SOCIO-LEGAL
REV. 1, 9-10 (2005).
Ananya Roy, Conclusion to WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL,
supra note 28, at 332.
Partha Chatterjee, Are Indian Cities Becoming Bourgeois At Last?, in THE POLITICS OF THE
GOVERNED 145 (2004). See generally, ANDY MERRIFIELD, THE NEW URBAN QUESTION (2014); Solly
Benjamin, Occupancy Urbanism: Radicalizing Politics and Economy beyond Policy and Programs,
32(3) INTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 719-729 (2008).
Lalit Batra, A Review of Urbanisation and Urban Policy in Post-Independent India, CENTRE FOR
THE STUDY OF LAW AND GOVERNANCE, WORKING PAPER NO. CSLG/WP/12 (2009). On this point,
see also Mahmud, supra note 32; Usha Ramanathan, Illegality and the Urban Poor, 41 ECONOMIC
& POLITICAL WEEKLY 3193-3197 (2006).
JANE M. JACOBS, EDGE OF EMPIRE POSTCOLONIALISM AND THE CITY 163 (2002).
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persuasively remind us, the politicisation of the streets has been and will be a key
component of our experience of modernity and for excavating the future.41
Street vending a phenomenon as ancient as urban settlement itself represents
in many ways the modest (and less belligerently confrontational, less irruptive)
forerunner to the occupy movements that grip our cities today: [v]ending can
be seen as a private taking of public space.42 As India ushers in an era of foreign
investment in retail trade, a critical examination of the context of street vending
in India enables an appreciation of other theoretical issues concerning culture,
citizenship, commodification, consumption, public space, social movements, and
constitutional fairness.43
THE STREET
Streets, markets, highways, parks, lakes, public libraries, and other urban common
property resources are highly contested spaces for various end uses within particular
time-frames. A citys urban plan, built form, collective and individual moral
outlook, laws, and norms effectively prioritise some claims while de-legitimating
others through complex clusters of adjudication mechanisms and legal iteration/
regulation. Streets affect culture and are affected by cultures. They constitute
modernities and are constituted by modernities. Richard Sennetts work
persuasively describes how the changing design of our cities (from heterogeneous
and disorderly to homogeneous and ordered; from public, democratic and
generative spaces to privatised, orchestrated and dead spaces) affects our public
41
42
43
See, MARSHALL BERMAN, ALL THAT IS SOLID MELTS INTO AIR: THE EXPERIENCE OF MODERNITY (1988);
MIKE DAVIS, CITY OF QUARTZ: EXCAVATING THE FUTURE IN LOS ANGELES (1990).
See, Call for Papers Contesting the Streets II: Vending and Public Spaces in Global Cities,
UNIVERSITY OF SOUTHERN CALIFORNIA, (October 2-3, 2015), http://slab.today/2015/02/call-forpapers-symposium-october-2-3-2015.
[S]treet vending as a lens through which to explore several theoretical issues: 1) the ways in
which culture-power-difference are mutually shaped and reconfigured in the public sphere; 2)
how shifting from political-economy analyses to cultural politics analysis within the context of
governance yields insights into activism and emerging conceptualizations of public space and
citizenship; 3) the questioning of commodified cultural identities that go beyond simple touristic
consumption practices; and 4) a clearer understanding how street vendors participate in social
movements that are part of larger transnational political and economic forces. See, Street
Economies, Politics, and Social Movements in the Urban Global South, ADVANCED SEMINAR,
(March 1317, 2011), http://sarweb.org/?advanced_seminar_street_economies.
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See, RICHARD SENNETT, FLESH AND STONE: THE BODY AND THE CITY IN WESTERN CIVILIZATION
(1994); RICHARD SENNETT, THE CONSCIENCE OF THE EYE: THE DESIGN AND SOCIAL LIFE OF CITIES
(1991); RICHARD SENNETT, THE FALL OF PUBLIC MAN (1977); RICHARD SENNETT, THE USES OF
DISORDER: PERSONAL IDENTITY AND CITY LIFE (1970).
See, Richard M. Levy, The Visualisation of the Street Computer Modelling and Urban Design,
in IMAGES OF THE STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, 58, 59 (Nicholas
Fyfe ed., 1998). See also, KEVIN LYNCH, GOOD CITY FORM (1984).
Spiro Kostof, THE THIRD ROME: 1870-1950: TRAFFIC AND GLORY (1973), as cited in David Atkinson,
Totalitarianism and the Street in Fascist Rome, in IMAGES OF THE STREET PLANNING, IDENTITY
AND CONTROL IN P UBLIC SPACE, supra note 45, at 12, 20.
See, PUBLIC STREETS FOR PUBLIC USE, 13 (Anne Vernez Moudon ed., 1987). On streets and cities,
see generally, KEVIN LYNCH, THE IMAGE OF THE CITY (1960); JANE JACOBS, THE DEATH AND LIFE OF
GREAT AMERICAN CITIES (1961); BERNARD RUDOFSKY, STREETS FOR PEOPLE: A PRIMER FOR AMERICANS
(1969); ON STREETS (Stanford Anderson ed., 1978); DONALD APPLEYARD, LIVABLE STREETS (1981);
PETER JUKES, A SHOUT IN THE STREET AN EXCURSION INTO THE MODERN CITY (1990); STREETS:
CRITICAL PERSPECTIVES ON PUBLIC SPACE (Zeynep elik, Diane Favro, & Richard Ingersoll eds.,
1994); IMAGES OF THE STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACEsupra note 45;
MITCHELL DUNEIER, SIDEWALK (1999); MICHAEL SOUTHWORTH & ERAN BEN-JOSEPH, STREETS AND
THE SHAPING OF TOWNS AND CITIES (2003); ANASTASIA LOUKAITOU-SIDERIS & RENIA EHRENFEUCHT,
SIDEWALKS CONFLICT AND NEGOTIATION OVER PUBLIC SPACE (2010); VIKAS MEHTA, THE STREET: A
QUINTESSENTIAL SOCIAL PUBLIC SPACE (2013); SHARON ZUKIN, PHILIP KASINITZ & XIANGMING CHEN,
GLOBAL CITIES, LOCAL STREETS: EVERYDAY DIVERSITY FROM NEW YORK TO SHANGHAI (2015).
Arjun Appadurai, Street Culture, 8(1) THE INDIA MAGAZINE 12, 12 (1987).
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While Roland Barthes reminds us of the eroticism of the city insofar as it is the
place of our meeting with the other,49 David Crouch elaborates that:
streets are themselves sites of cultural practice, and part of our
knowledge of the city because they link sites of activity, of cultural
practice, make escape possible and are a step to somewhere else, and
someone else. They connect all sorts of sites of everyday cultural life,
both spectacular and humble. People meet in the street, and they can
avoid engagement in the street.50
The linkages between social processes and the spatial form of the street have been
explored with exceptional brilliance in the writings of Jane Jacobs,51 Michel de
Certeau,52 Le Corbusier,53 and Walter Benjamin.54 A short but insightful essay by
the late Heinz Paetzold usefully indicates how Jacobs (through reclaiming the
sidewalks along the streets for urban culture and through urging for mixed uses
of urban areas), de Certeau (through a conceptualisation of walking in the city as
a post-functionalist signification of the streets), and Benjamin (whose flnerie,
similar to de Certeaus walking/strolling, destabilizes the functionalist and
structuralist discourse of the street and the city) each in their own unique
way, provide critiques of the functionalist urban design championed by Le
Corbusier, which amongst other things, conceived of streets primarily as machines
for traffic and openly applauded the Haussmannisation of everywhere. 55
Joesph D. Lewandowski argues that Benjamins dialectical urbanism is unique
given that it illuminates how the modern city can be both an administratively
49
50
51
52
53
54
55
Roland Barthes, Semiology and the Urban, in RETHINKING ARCHITECTURE: A READER IN CULTURAL
THEORY 166-172 (Neil Leach ed., 1997).
David Crouch, The Street in the Making of Popular Geographical Knowledge, in IMAGES OF THE
STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 158.
See, JACOBS, supra note 47.
See, MICHEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans. 1984).
Le Corbusier, New York is Not a Completed City, reprinted in METROPOLIS: CENTRE AND SYMBOL
OF OUR TIMES 98-110 (Philip Kasinitz ed., 1995); LE CORBUSIER, THE RADIANT C ITY (Pamela
Knight, Eleanor Levieux, & Derek Coltman trans., 1967); LE CORBUSIER, THE ATHENS CHARTER
(Anthony Eardley trans., 1973).
See, Walter Benjamin, Paris: Capital of the Nineteenth Century,reprinted in METROPOLIS: CENTRE
AND SYMBOL OF OUR TIMES 46-57 (Philip Kasinitz ed., 1995); WALTER BENJAMIN, T HE A RCADES
PROJECT, (Howard Eileen and Kevin McLaughlin trans., 1999).
Heinz Paetzold, The Aesthetics of City Strolling, 11 CONTEMPORARY AESTHETICS (2013), http://
www.contempaesthetics.org/newvolume/pages/article.php?articleID=666. See also, JAMES
HOLSTON, THE MODERNIST CITY: AN ANTHROPOLOGICAL CRITIQUE OF BRASILIA (1989).
17
57
Lewandowski points out that insofar as Benjamins dialectical urbanism suggests that the modern
city is also the site of the emergence of new and innovative forms of social/city life that have the
potential to transform their own structural context, it differs from the dominant quasifunctionalist German sociological discussions of urbanism and urbanisation (for example, the
work of Friedrich Engels and Georg Simmels explain urbanism as the liquidation of collective
ways of life under the imperatives of industrial capitalism) and the more recent analytic conceptions
of the agent as a free-floating, empirically disembedded actor whose rational discourse transcends
the location in which it is situated (for example, the work of Jurgen Habermas stresses on
context-transcendent norms of validity claims). See, Joseph D. Lewandowski, Street culture the
dialectic of urbanism in Walter Benjamins Passagen-werk, 31(3) PHILOSOPHY AND SOCIAL CRITICISM
293-308 (2005).
WALTER BENJAMIN, THE ARCADES PROJECT, 421 (Howard Eileen and Kevin McLaughlin trans.,
1999). The original source referenced by Benjamin is Adolf Stahr, 1 NACH FNF JAHREN: PARISER
STUDIEN AUS DEM JAHRE 1855 (1857). The quoted extract highlights how entrepreneurial vision,
confidence in improvisational abilities, and the mobile nature of some street vendors created a
profitable economic opportunity that the city administrators of Paris had probably not anticipated
in their cadastral mapping of the city and their planning of its boulevards, public parks, shopping
areas, etc. It also suggests that despite careful spatial planning, context-specific enterprise and
necessity will often determine what happens at a particular time in a particular street within a
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(emphasis supplied)
Ravi Kalia has pointed out how Corbusiers vision directly propelled an ambitious
Indian socio-urban experiment that included, along with an innovative master
plan, modernist buildings, new landuse patterns, provisions for education,
recreation, medical and social services, the careful and deliberate inclusion of ideas
that had their origin in a culture far removed from her own.58 While this ambitious
experiment continues today in every major Indian city, urban interstices on streets
in India offer alternative imaginaries. The collection of essays published in Seminar
magazine in August 2012 as Streetscapes: a Symposium on the Future of the
Street brings to light numerous developmental contexts (transport, infrastructure
development, street vending, waste management, eviction, urban public art, etc.),
and contested urban meanings (city beautification, urban improvement, master
planning, good street design, street culture, etc.) that any serious discussion of the
street in India must be attentive to. Posing the problem of the future of the street,
Curt Gambetta and Ritajyoti Bandyopadhyay note that current popular and
critical imagination is coloured by a sense of the impending obsolescence of the
street as a conduit of social life. The visible effects of recent (neoliberal) urban
transformation seem to confirm this, where
[i]nfrastructure bends to accept an exploding population of single
occupancy vehicles: flyovers and thoroughfares provide ground for
unceasing circulation, insulating the movement of vehicles from the
discontinuous ebb and flow of street congestion. Retail and leisure
are drawn in from the street and subject to new forms of ownership,
58
modern city. Finally, the above extract suggests that some urban practices are recurrent despite
technological, administrative and culture changes. The complex relationship between structure
and agency in a modern city - between the arcades (passages) and the dreams/dispositions/
embedded practices of agents who interiorize the arcades of Paris is prominently highlighted
throughout Benjamins The Arcades Project. The dialectic of spatial domination (through
administrative planning) and collaborative improvisational interiorization of urban spaces
(through practices such as dwelling, suffering, improvising, etc.) is what, in Benjamins account,
results in the emergence of a situated, empirico-structurally embedded, collective street life. These
evocative elements of street vending are explicated in greater detail further on in this essay.
See, Nehru, Le Corbusier and the Mapping of Modern (or Urban) India, (6th August 2014), http:/
/www.nehrumemorial.nic.in/en/news/320-nehru-le-corbusier-and-the-mapping-of-modern-orurban-india-6th-august-2014.html. See also, RAVI KALIA, CHANDIGARH: THE MAKING OF AN INDIAN
CITY (1999).
19
59
60
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61
Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON
supra note 59, http://www.india-seminar.com/2012/636/
636_jonathan_s_anjaria.htm. The original sources referenced include PRASHANT KIDAMBI, THE
MAKING OF AN INDIAN METROPOLIS: COLONIAL GOVERNANCE AND PUBLIC CULTURE IN BOMBAY
1890-1920 (2007); Nirmal Kumar Bose, Calcutta: A Premature Metropolis, 213(3) SCIENTIFIC
AMERICAN 90-102 (1965); SIDNEY LOW, A VISION OF INDIA (1907); Arvind Rajagopal, The Violence
of Commodity Aesthetics: Hawkers, Demolition Raids, and a New Regime of Consumption,
19(3) SOCIAL TEXT 91-113 (2001); Judy Whitehead & Nitin More, Revanchism in Mumbai?
Political Economy of Rent Gaps and Urban Restructuring in a Global City, 42 ECONOMIC AND
POLITICAL WEEKLY 2428-2434 (23-29 June 2007); Pushpa Arabindoo, City of Sand: Stately ReImagination of Marina Beach in Chennai, 35(2) INTERNATIONAL JOURNAL OF URBAN AND REGIONAL
RESEARCH 379-401 (2010); Appadurai, supra note 48; SARAYU AHUJA, WHERE THE STREETS LEAD
(1997); Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET PLANNING,
IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 47, at 201-216; KAIWAN MEHTA, ALICE IN
BHULESHWAR: NAVIGATING A MUMBAI NEIGHBOURHOOD (2009).
Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON
THE F UTURE OF THE S TREET , supra note 59, http://www.india-seminar.com/2012/636/
636_jonathan_s_anjaria.htm.
Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET PLANNING, IDENTITY AND
CONTROL IN PUBLIC SPACE, supra note 45, at 208, 215.
THE FUTURE OF THE STREET ,
62
63
21
64
65
66
67
For a useful attempt to theorize this issue from a distribution perspective, see, David Harvey,
Social Processes and Spatial Form: The Redistribution of Real Income in an Urban System, in
SOCIAL JUSTICE AND THE CITY, supra note 6, at 50-95.
See, Nicole Stelle Garnett, Managing the Urban Commons, 160 U. PA. L. REV. 1995-2027 (201112) for a recent review of the literature on commons-space management in the context of urban
public spaces.
DOREEN MASSEY, SPACE, PLACE AND GENDER 5 (2001). See also, DOREEN MASSEY, FOR SPACE
(2005).
See generally, Ananya Roy, Urban Informality Toward an Epistemology of Planning, 71(2)
JOURNAL OF THE AMERICAN PLANNING ASSOCIATION 147-158 (2005).
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68
69
70
71
Susan S. Fainstein usefully explicates potentially conflicting values (equality, diversity, democracy)
and approaches (communicative model, new urbanism model, the just city model) that animate
debates in city planning. See, Susan S. Fainstein, Can We Make the Cities We Want,inTHE URBAN
MOMENT 249-272 (Sophie Body-Gendrot & Robert Beauregard eds., 1999); Susan S. Fainstein,
New Directions in Planning Theory, 35(4) URBAN AFFAIRS REVIEW 451-478 (2000). See also, Leo
Saldanha, Whose Streets, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note
59, http://www.india-seminar.com/2012/636/636_leo_f_saldanha.htm.
Ananya Roy, Why India Cannot Plan its Cities: Informality, Insurgence and the Idiom of
Urbanization, 8(1) PLANNING THEORY 76, 86 (2009).
ITALO CALVINO, INVISIBLE CITIES 611 (1974).
MASSEY, SPACE, PLACE AND GENDER, supra note 66, at 3.
23
72
73
74
75
76
77
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the underlying causes of street destitution and the attendant problems of distributive
and spatial justice that these raise.77
The street is where the state that seeks legibility of all its citizens and each of their
transactions meets persistent resistance and insurmountable practical challenges in
realising its vision. James Scotts classic Seeing Like a State: How Certain Schemes
to Improve the Human Condition Have Failed analyses diverse failures in highmodern, authoritarian state planning collectivisation in Russia, the building of
Brasilia (in accordance with Le Corbusiers vision), compulsory ujamaa villages in
Tanzania, Lenins Russia, etc. and concludes that [c]ollectivized command
economies virtually everywhere have limped along thanks to the often desperate
improvisation of an informal economy wholly outside its schemata.78
In all modern cities, the nonconforming informal practice is an indispensable
condition for formal order. In all modern nation states, the economy is a subsystem
of a finite and nongrowing eco-system, whose carrying capacity and interactions
it must respect as a condition of its own persistence.79 This fragile, often invisibilised,
relationship between the street economy and the street (and city) eco-system suffers
when state activities and state officials insist on treating people on the streets
according to inadequately nuanced, high-modernism influenced schemata. The
economic plan, city plan, development plan, city map, survey map, zonal map,
record of ownership, kiosk license, market vending license, fixed cart license,
zone management plan, classification of religion or caste or ethnicity, arrest record,
map of political boundaries, etc. constitute the synoptic data that the state uses
for its miniaturised legibility and simplification schemata of the city streets. In
accord with Scotts critique of the governmental modernist gaze, Mayaram
concludes that [r]egimes of urban planning in India have been influenced, more
often than not, by the Le Corbusier approach.80 Relatedly, Prasad Shettys
78
79
80
JAMES SCOTT, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION
HAVE FAILED 351 (1998).
Herman E Daly, Policies for Sustainable Development, PAPER PRESENTED AT THE PROGRAM IN
AGRARIAN STUDIES, YALE UNIVERSITY, NEW HAVEN 4 (February 9, 1996), as cited in SCOTT, id.
Mayaram, supra note 36, at 8. See also, Le Corbusier, Towards a New Architecture, excerpted
in FROM MODERNISM TO POSTMODERNISM: AN ANTHOLOGY 200-211 (Lawrence E. Cahoone ed.,
1996).
25
81
82
83
84
Prasad Shetty, Of Blurry Claims and Forms, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE
STREET, supra note 62, http://www.india-seminar.com/2012/636/636_prasad_shetty.htm.
See, Michael Goldman, Speculating on the Next World City, at 229-258;Ananya Roy, The Blockade
of the World-Class City: Dialectical Images of Indian Urbanism, at 259-278; and D. Asher
Ghertner, Rule by Aesthetics: World-Class City Making in Delhi, at 279-306, all in,WORLDING
CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL, supra note 28. See also, Shruti
Ravindran, Is Indias 100 smart cities project a recipe for social apartheid, THE GUARDIAN, http:/
/www.theguardian.com/cities/2015/may/07/india-100-smart-cities-project-social-apartheid.
Mariana Valverde, Seeing like a City: The Dialectic of Modern and Premodern Ways of Seeing in
Urban Governance, 45 LAW & SOCIETY REVIEW 277-312, (2011); MARIANA VALVERDE, EVERYDAY
LAW ON THE STREET: CITY GOVERNANCE IN AN AGE OF DIVERSITY (2012).
Dipesh Chakrabarty, Open space/public space: garbage, modernity and India, 16 SOUTH ASIA
63-73 (1991), cited from Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET
PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 201, 208.
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fair, which together constitute an unenclosed realm that provides a meeting point
of several communities in recent times, however, the thrills of the bazaar are
traded in for the conveniences of the sterile supermarket.84 The street in India is
where a marriage procession spontaneously celebrates a union. The street is where
the unlicensed street food vendor meets extreme police brutality as she returns
home after a long days work. The street is where public demonstrations, traffic
breakdowns, cycling critical mass demonstrations, carnivals, dinner-time shopping,
snack urges, traffic offences, festival celebrations,crimes, prostitution, religious
celebrations, tree-killing, public nationalisms, gang-rapes, and a whole host of
other infinitely varying activities create the component parts of the city street
ethos. Lamenting Bangalore citys plan to widen Avenue Road, Lata Mani points
out that:
[s]treets are life worlds. People in action, cultures in play. The street
is a theatre of contiguity, chance, conflict and conviviality. A delicate,
imprecise equilibrium Cold anonymity has not been a feature of
our urbanism It is people who have dynamised our streets Social
hierarchy and spatial proximity have accordingly been intrinsic features
of urban life Any conception of the global city that is at odds
with the prevailing nature of Indian urbanism is equally at odds with
its cultural substructure surely equivalent to destabilising the ground
beneath our feet.85
Sartres assertion that ideas cannot digest reality seems particularly true of the
city planners simplification of the street in most cities. This disjunction between
ideas and reality asserts its salient mischief through the violence that is enacted on
bodies, livelihoods and lives connected to the informal street economy or
ecosystem. Kropotkins conviction that we cannot legislate for the future
notwithstanding, it is possible to make a convincing case that planning for our
streets in our cities should espouse institutions that are powerfully shaped by
practical spatial knowledge and local customs, what James Scott describes as metis.
Such metis friendly institutions would be multi-functional, plastic, diverse, and
adaptable these institutions would embrace rather than ignore or fear the urban
interstice. Second, planning for our streets in our cities should recognise the
85
Lata Mani, Urban triptych, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra
note 59, http://www.india-seminar.com/2012/636/636_lata_mani.htm.
27
STREET VENDING
Street vendors and the mode of production and consumption that their livelihood
constitutes and represents - are ubiquitous in every city across the world today
precisely because the problem of production has not truly been solved. In
Mesoamerica, street commerce played a central role in the Aztec civilization and
Tenochtitlans central markets depended on complex networks that extended
throughout Mesoamerica.87 The celebrated French historian Fernand Braudel
was one of the first scholars to explicitly focus on the history of street vendors. In
his seminal work Civilization and Capitalism, 15th-18th Century, Braudel points
out that the sheer number of peddlers and the areas they covered meant that they
stimulated and maintained trade, and spread it over a distance in early modern
Europe.88 While pointing out that peddlers had a crucial influence on the
distribution of certain goods (for example, Bohemian glassware, almanacs and
86
87
88
89
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popular literature) to rural areas, Braudel highlights that many peddlers were
seasonal migrants.89 As correctly identified by Danielle van den Heuvel, Braudel
also highlights that early modern itinerant traders occupied a marginal position
in society, expressed both in their income levels and in their activities, which were
often on the fringes of legality.90 Heuvels scholarly chapter also points out that
it was the work of Olwen Hufton and Laurence Fontaine that first seriously
questioned the supposedly marginal position of itinerant traders,91 and additionally,
Fontaine had made the point that those sources that contain most information
about peddlers, such as legal and police records, only revealed the exceptional and
marginal and therefore thorough and imaginative methods were required to
reveal the true character of ambulant trading.92
While a proper history of street vending in ancient, early modern, and colonial
India is yet to be written, considerable scholarly references to early street vending
in India do exist. Amalendu Guha in the Cambridge Economic History of India,
for example, points out that there was only a small daily bazaar on a narrow
street in the Ahom capital of Garhgaon in the 1660s; and the only sellers who sat
therewere betel-leaf sellerswomen vendors, amongst others, brought headloads of various provisions for sale to Nazirahat, located outside the city gates.93
A fascinating chapter by Dirk H.A. Kolff on the market for mobile labour in
early modern North India concludes that mobile labour was characterised, above
all, by its many fluidities: occupational or vocational fluidities, fluidities of
90
91
92
Danielle van den Heuvel, Selling in the Shadows: Peddlers and Hawkers in Early Modern Europe,
in WORKING ON LABOR ESSAYS IN HONOR OF JAN LUCASSEN 125, 129 (Marcel van der Linden and
Leo Lucassen eds., 2012). Heuvel also identifies book history, migration history, and womens
history as three strands of history that did devote substantial attention to peddlers and other
itinerant traders in early modern Europe. Works cited include MARGARET SPUFFORD, SMALL
BOOKS AND PLEASANT HISTORIES: POPULAR FICTION AND ITS READERSHIP IN SEVENTEENTH-CENTURY
ENGLAND (1981); MARGARET SPUFFORD, THE GREAT RECLOTHING OF RURAL ENGLAND: PETTY
CHAPMEN AND THEIR WARES IN THE SEVENTEENTH CENTURY (1984); Leo Lucassen, A Blind Spot:
Migratory and Travelling Groups in Western European Historiography, 38 INTERNATIONAL REVIEW
OF SOCIAL HISTORY 209-235 (1993); ALICE CLARK, WORKING LIFE OF WOMEN IN THE SEVENTEENTH
CENTURY (1919); Merry Wiesner Wood, Paltry Peddlers or Essential Merchants? Women in the
Distributive Trades in Early Modern Germany, 12 SIXTEENTH CENTURY JOURNAL, 3-14 (1981).
OLWEN HUFTON, THE POOR OF EIGHTEENTH-CENTURY FRANCE (1974); LAURENCE FONTAINE, HISTORY
OF P EDLARS IN EUROPE (1996).
Heuvel, supra note 90, at 129, 130.
29
93
94
95
96
97
Amalendu Guha, Appendix: The Medieval Economy of Assam, in CAMBRIDGE ECONOMIC HISTORY
OF INDIA, VOLUME 1, C.1200 C.1750, at 478, 489 (Tapan Raychaudhuri & Irfan Habib eds., 2004
reprint edition).
Dirk H.A. Kolff, The Market for Labour in Early Modern North India, in ROUTLEDGE HANDBOOK
OF THE SOUTH A SIAN DIASPORA 23, 30 (Joya Chatterji and David Washbrook eds., 2013).
Patricia Acerbi, Slave Legacies, Ambivalent Modernity: Street Commerce and the Transition
to Free Labor in Rio de Janeiro, 1850-1925, at 306-307 (2010) (unpublished dissertation,
University of Maryland), http://drum.lib.umd.edu/bitstream/1903/10899/1/Acerbi_umd_0117E_
11557.pdf.
Patricia Acerbi, A Long Poem of Walking : Flneurs, Vendors, and Chronicles of Post-abolition
Rio de Janeiro, 40(1) JOURNAL OF URBAN HISTORY 97, 111 (2014).
Keith Hart, Informal Income Opportunities and Urban Employment in Ghana, 11(1) JOURNAL
OF M ODERN A FRICAN STUDIES 61-89 (1973), which was initially presented at the Urban
Unemployment in Africa conference held at the Institute of Development Studies of the
University of Sussex in September 1971.
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98
99
ILO-WIEGO, WOMEN AND MEN IN THE INFORMAL ECONOMY 2013: A S TATISTICAL PICTURE (2013),
cited from SALLY ROEVER, INFORMAL ECONOMY MONITORING STUDY SECTOR REPORT: STREET VENDORS
5 (2014).
While a detailed overview of the literature on the informal economy/sector/worker is not
possible here, the interested reader is guided to THE INFORMAL ECONOMY: STUDIES IN ADVANCED
AND L ESS D EVELOPED C OUNTRIES (Alejandro Portes, Manuel Castells, & Lauren Benton eds.,
1989); HERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE REVOLUTION IN THE THIRD WORLD
(1989); PHILIP HARDING AND RICHARD JENKINS, THE MYTH OF THE HIDDEN ECONOMY: TOWARDS A
NEW UNDERSTANDING OF INFORMAL ECONOMIC ACTIVITY (1989); JAN BREMAN, FOOTLOOSE LABOUR:
WORKING IN INDIAS INFORMAL ECONOMY (1996); THE UNORGANISED SECTOR: WORK SECURITY AND
SOCIAL PROTECTION (Renana Jhabvala & RKA Subrahmanya eds., 2001); ILO, WOMEN AND MEN
IN THE INFORMAL ECONOMY: A STATISTICAL PICTURE (2002); ILO, DECENT WORK AND THE INFORMAL
ECONOMY (2002); INFORMAL ECONOMY CENTRESTAGE: NEW STRUCTURES FOR EMPLOYMENT (Renana
Jhabvala, Ratna M. Sudarshan, & Jeemol Unni eds., 2003); RETHINKING INFORMALIZATION:
POVERTY, PRECARIOUS JOBS AND SOCIAL PROTECTION (Neema Kudva & Lourdes Beneria eds.,
2005); LINKING THE FORMAL AND INFORMAL ECONOMY CONCEPTS AND PRACTICES (Basudeb GuhaKhasnobis, Ravi Kanbur and Elinor Ostrom eds., 2006); NATIONAL COMMISSION FOR ENTERPRISES
IN THE UNORGANISED SECTOR, REPORT ON CONDITIONS OF WORK AND PROMOTION OF LIVELIHOODS
IN THE UNORGANISED SECTOR (2007); TRADE LIBERALIZATION AND INDIAS INFORMAL ECONOMY
(Barbara Harriss-White and Anushree Sinha eds., 2007); ureo De Paula & Jos J. Scheinkman,
The Informal Sector, NBER WORKING PAPER (2007); NATIONAL COMMISSION FOR ENTERPRISES IN
THE UNORGANISED SECTOR, REPORT ON DEFINITIONAL AND STATISTICAL ISSUES RELATING TO INFORMAL
ECONOMY (2008); Rafael La Porta and Andrei Shleifer, The Unofficial Economy and Economic
Development, BROOKINGS PAPERS ON ECONOMIC ACTIVITY (2008); MARC BACCHETTA, EKKEHARD
ERNST & JUANA P BUSTAMANTE, GLOBALIZATION AND INFORMAL JOBS IN DEVELOPING COUNTRIES
(2009); NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED SECTOR, THE CHALLENGE OF
EMPLOYMENT IN INDIA AN INFORMAL ECONOMY PERSPECTIVE (2009); IS INFORMAL NORMAL? TOWARDS
MORE AND BETTER JOBS IN DEVELOPING COUNTRIES (Johannes P. Jutting & Juan R. de Laiglesia eds.,
2009); SUGATA MARJIT & SAIBAL KAR, THE OUTSIDERS: ECONOMIC REFORMS AND INFORMAL LABOUR
IN A DEVELOPING E CONOMY (2011); Martha Alter Chen, The Informal Economy: Definitions,
Theories and Policies, WIEGO WORKING PAPER NO. 1 (August 2012); Jacques Charmes, The
Informal Economy Worldwide: Trends and Characteristics, 6(2) THE JOURNAL OF APPLIED
ECONOMIC RESEARCH 103-132 (2012); Ejaz Ghani, William R. Kerr, & Stephen D. OConnell,
The Exceptional Persistence of Indias Unorganized Sector, WORLD BANK POLICY RESEARCH WORKING
PAPER NO. 6454 (2013); Ravi Kanbur, Informality: Causes, Consequences and Policy Responses,
PAPER PREPARED FOR RESERVE BANK OF INDIA (2014). For recent work on the (successful) politics of
informal workers, see RINA AGARWALA, INFORMAL LABOR, FORMAL POLITICS, AND DIGNIFIED
DISCONTENT IN INDIA (2013).
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evident that urban street vending is a highly contested global phenomenon with
no easy one-size-fits-all answers.101 Street vending varies greatly in scale, timing,
location, remuneration; it varies in terms of workforce, and types of goods and
services.102
The historian Danielle van den Heuvel usefully surveys the relevant literature (on
contemporary street vending) and highlights central propositions on the
characteristics of street vending, its origins and determinant causes, and finally, its
effects on participants and the economy.103 On street vending and the actors
involved in the contemporary contexts of developing economies: 1) most scholars
identify street vendors as relatively poor urban dwellers who are often, but not
always, new to the cities they live in, and in many cases the majority of the street
traders are women (though for most Indian cities, male vendors far outnumber
women vendors);104 2) the enterprises of street vendors are often small familybased operations and;105 3) most street vendors operate in the shadows of the
official economy, are unlicensed and pay no, or very little, taxes.106 Further, Heuvel
points out that the rise and persistence of informal street selling have been explained
by social scientists on the basis of a number of different factors including rapid
103
104
105
106
sometimes right outside the store, at other times some distance away. Other street vendors
create their own branch operations, dividing their merchandise and sending some of it with a
relative, partner or employee to sell at another location Most street operations are much
smaller in scale than fixed stores or supermarkets in off-street locations, but a few are quite
substantial, ranging from truck-borne mobile stores, to big fixed stalls and kiosks in strategic
high-demand locations. The income distribution of street vendors is highly skewed, with a few
making quite high incomes, comparable to those of successful storekeepers and career professionals,
and most making relatively low incomes, comparable to those of unskilled manual laborers. See
Ray Bromley, Street Vending and Public Policy: A Global Review, 20 (1/2) INTERNATIONAL
JOURNAL OF SOCIOLOGY AND SOCIAL POLICY 1, 2-3 (2000).
Heuvel, supra note 90, at 134-137.
Sources cited include TERENCE GARY MCGEE & YUE-MAN YEUNG, HAWKERS IN SOUTHEAST ASIAN
CITIES: PLANNING FOR THE BAZAAR ECONOMY (1977); NARUMOL NIRATHRON, FIGHTING POVERTY
FROM THE STREET A S URVEY OF STREET FOOD VENDORS IN BANGKOK (2006); Sally Christine
Roever, Negotiating Formality: Informal Sector, Market and State in Peru (2005) (unpublished
Ph.D. dissertation, University of California at Berkeley); Jacques Charmes, GENDER AND INFORMAL
SECTOR IN THE WORLDS WOMEN 2000: TRENDS AND STATISTICS (1999).
Sources cited include TERENCE GARY MCGEE & YUE-MAN YEUNG, id. and Sally Christine Roever,
id.
Sources cited include DE SOTO, supra note 99; Martha Alter Chen, Rethinking the Informal
Economy: Linkages with the Formal Economy and the Formal Regulatory Environment, in
LINKING THE FORMAL AND INFORMAL ECONOMY CONCEPTS AND PRACTICES, supra note 99, at 75-92;
Bromley, supra note 102.
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& Ibrahima Dankoco, Street Traders and the Emerging Spaces for Urban Voice and Citizenship
in African Cities, 47(3) URBAN STUDIES 666-683 (January 2010); ERCMENT ELIK, STREET TRADERS:
A BRIDGE BETWEEN TRADE UNIONS AND SOCIAL MOVEMENTS IN CONTEMPORARY SOUTH AFRICA
(2009); RICHARD DOBSON & CAROLINE SKINNER WITH JILLIAN NICHOLSON, WORKING IN WARWICK:
INCLUDING STREET TRADERS IN URBAN PLANS (2009); AFRICAS INFORMAL WORKERS: COLLECTIVE
AGENCY, ALLIANCES AND TRANSNATIONAL ORGANIZING IN URBAN AFRICA (Ilda Lindell ed., 2010);
Randhir Kumar, The Regularization of Street Vending in Bhubaneswar, India: A Policy Model,
WIEGO POLICY BRIEF (URBAN POLICIES) NO. 7 (2012).
110 Bromley, supra note 102, at 5-6.
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applicability.
While a detailed global overview of urban street vending is beyond the scope of
this speculative review essay, Roevers Informal Economy Monitoring Study (IEMS)
Sector Report on Street Vendors demonstrates the possibility and value of multicity research on street vending and usefully details some clear patterns that emerge
(across the five cities studied) with regard to status in employment, enterprise
structure, gender, and working conditions.113 The IEMS study focuses on the way
in which three sets of driving forces macroeconomic, city/government, and
value chain play out among different segments of the street vending sector across
111 Bromley, supra note 102, at 9-10.
112 Bromley, supra note 102, at 15-16.
113 Street vending is not a temporary occupation for most vendors in the sample: on average,
women have been working as street vendors for 14.2 years and men for 12.8 yearsFor
vendors without a fixed post those who walk along streets, sidewalks, and transport routes,
selling only what they can carry the profit margin depends on their ability to sell in areas with
a large enough customer base and small enough number of competitors.. Data from the focus
groups indicate a strong reliance among vendors on having a regular workplace where returning
customers can easily find them; in the survey, 90 per cent reported that they work at the same
place every day.. Among the few who do not work at the same place every day, 40 per cent are
mobile hawkers who carry their goods and sell on foot, and 60 per cent have some sort of cart,
stand, table, or ground cover More than two thirds of vendors live in households for which
street vending provides the main source of household income. In no city does formal wage
employment provide more than 9 per cent of households with their primary source of income..
Among street vendors in the five cities, men have significantly higher levels of education than
women.. Overall, women are nearly twice as likely as men to sell produce, and men are nearly
twice as likely as women to sell durables. The latter includes, most commonly, garments, electronics,
and DVDs vendors in the IEMS sample described unstable patterns of earnings and
expenditures and unpredictable work environments.They tend to face frequent disruptions in
earnings and savings not only from being unable to work when they are ill, but also from costs
imposed through systemic factors that undermine their ability to save over time. . Recovering
from these disruptions while keeping up with household expenses was a common challenge,
particularly for the most vulnerable vendors. See Roever, supra note 98, at 8-13.
114 In the section Key Findings, the study states: Overall, the one most consistently and highly
ranked driver in every city was abuse of authority, including police harassment, demands for
bribes, arbitrary confiscations of merchandise, and physical abuse. Street vendors also ranked the
lack of a fixed and secure workplace and evictions from (or demolitions of) existing workplaces
among the most significant negative drivers. Regulatory restrictions and government practices
relating to licensing and fees were also significant. Notably, where vendors did have a secure
workplace or an effective license to work, they ranked it among the most positive forcesUrban
infrastructure and services were also identified as significant drivers in all five cities. Vendors
identified lack of shelter, inadequate storage facilities, and insufficient supply of water, electricity,
toilets, and waste removal services as systemic factors that undermine productivity and limit their
ability to accumulate over time Again, where access to or quality of urban infrastructure was
good, vendors identified it as a significant positive driver. See Roever, supra note 98, at 59.
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The context of street vending in Indian cities has been seriously explored
in the work(s) of only a handful of scholars, most notably, Arjun Appadurai,116
Partha Chatterjee,117 Madhu Purnima Kishwar,118 Sharit K. Bhowmik and
Debdulal Saha,119 Ananya Roy,120 Ritajyoti Bandyopadhyay,121 Jonathan Shapiro
Anjaria,122 and Amlanjyoti Goswami.123 Despite a couple of multi-city surveys
over the past few decades,124 reliable national level empirical data on street vending
in India has not been easily accessible in the academic and policy literature. Most
estimates (including the 2013 parliamentary Standing Committee Report on the
Street Vending Bill of 2012) refer back to a National Commission for Enterprises
122
123
124
125
VENDING IN THE NEOLIBERAL CITY: A GLOBAL PERSPECTIVE ON THE PRACTICES AND POLICIES OF A
MARGINALIZED ECONOMY, supra note 101; Rityajyoti Bandyopadhyay, The Hawkers Question in
Postcolonial Calcutta: Histories and Possibilities (2014) (unpublished manuscript); Ritajyoti
Bandyopadhyay, TV Prathamesh & Puja Guha, Zoning crossroads: a critique, in STREETSCAPES: A
SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 62, http://www.india-seminar.com/2012/
636/636_ritajyoti_et_all.htm; Ritajyoti Bandyopadhyay, Politics of archiving: hawkers and
pavement dwellers in Calcutta, 35(3) DIALECTICAL ANTHROPOLOGY 295-316 (September 2011);
Ritajyoti Bandyopadhyay, Hawkers Movement in Kolkata, 1975-2007, 44 ECONOMIC & POLITICAL
WEEKLY 116-119 (April 25, 2009).
See, for example, Jonathan Shapiro Anjaria, How we define the street, INDIAN EXPRESS, 10 March,
2014; Jonathan Shapiro Anjaria & Alka Anjaria, The fractured spaces of entrepreneurialism in
post-liberalization India, in ENTERPRISE CULTURE IN NEOLIBERAL INDIA: STUDIES IN YOUTH, CLASS,
WORK AND MEDIA 190-205 (Nandini Gooptu ed., 2013); Jonathan Shapiro Anjaria, Is there a
culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note
59, http://www.india-seminar.com/2012/636/636_jonathan_s_anjaria.htm; U RBAN
NAVIGATIONS: POLITICS, SPACE AND THE CITY IN SOUTH ASIA (Jonathan Shapiro Anjaria & Colin
McFarlane eds., 2011); Jonathan Shapiro Anjaria, Guardians of the Bourgeois City: Citizenship,
Public Space, and Middle-Class Activism in Mumbai, 8(4) CITY & COMMUNITY 391-406 (2009);
Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL
WEEKLY 2140-2146 (May 27, 2006).
See Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality
of Vending, in THE CITY IN URBAN POVERTY 183-204 (Charlotte Lemanski and Colin Marx eds.,
2015).
See, for example, BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119;
SHARIT K. BHOWMIK, HAWKERS IN THE URBAN INFORMAL SECTOR: A STUDY OF STREET VENDING IN
SEVEN CITIES OF INDIA (2000). A useful repository of survey resources, articles and papers on street
vending in India can be accessed at the Strengthen and Harmonize Research and Action on
Migration (SHRAM) website, http://www.shram.org/SearchPage.php?search_field=street+
vendor&x=0&y=0.
NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANIZED SECTOR, NATIONAL POLICY ON URBAN
STREET VENDORS: REPORT AND RECOMMENDATIONS 2 (May 2006); See also LOK SABHA SECRETARIATSTANDING COMMITTEE ON URBAN DEVELOPMENT (2012-13), TWENTY THIRD REPORT ON THE STREET
VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) BILL, 2012 (MARCH
2013).
39
126 See generally, Joann Vanek et al, Statistics on the Informal Economy: Definitions, Regional
Estimates and Challenges, WIEGO WORKING PAPER (STATISTICS) NO. 2 (April 2014).
127 See Martha Alter Chen and G. Raveendran, Urban Employment in India: Recent Trends and
Patterns, WIEGO WORKING PAPER NO. 7, at 11 (November 2011, updated 2014).
128 Id., at 11-12.
129 Sobin George, New Forms of Retail Trade and the Trajectories of Urban Exclusion in India: A
Review, Working PAPER 313, INSTITUTE FOR SOCIAL AND ECONOMIC CHANGE 13, 15 (2014).
130 Id.
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vending, spatial justice, urban modernity, etc. in India and in cities in India) that
may be drawn from these numbers certainly deserve careful future attention.
While every city, and in fact every street, in India, has its own spatiality, its own
temporality, its own possibilities of interstitial justice, it is worthwhile here to
briefly (and impressionistically) attempt to sketch the world of urban street vending
and the urban street vendor in India. Goswami, for example, points out that the
every vendor possesses a keen awareness of the various uses and users of the
street. The vendor depends on the bus traveller, the pedestrian, the office goer,
the lounger.131 As regards the built form of the street, Geetam Tiwari has pointed
out that the road environment design and nature of road traffic in Indian cities
(including pedestrians, bicycles, animal-driven carts, non-motorised rickshaws,
etc.) imply both that street vendors are inevitable and that such street trade serves
a very real and otherwise largely un-fulfilled demand.132 The survey (coordinated
by Sharit K. Bhowmik and Debdulal Saha) conducted in ten cities across India
(Bhubaneswar, Bengaluru, Delhi, Hyderabad, Imphal, Indore, Jaipur, Lucknow,
Mumbai and Patna) provides some useful details about the working and living
conditions of street vendors, the views of consumers, and the spatio-temporality
of urban street vending in India.133 Summarizing their findings across the 10 cities,
Bhowmik and Saha point out that: street vendors are overwhelmingly male with
131 Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality
of Vending, supra note 123.
132 Geetam Tiwari, Encroachers or service providers?, in STREET VENDORS: A SYMPOSIUM ON RECONCILING
PEOPLES LIVELIHOOD AND URBAN GOVERNANCE, 491 SEMINAR (July 2000), http://www.indiaseminar.com/2000/491/491%20geetam%20tiwari.htm.
133 See BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119. See also, Jonathan
Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL WEEKLY
2140-2146 (May 27, 2006); Rityajyoti Bandyopadhyay, The Hawkers Question in Postcolonial
Calcutta: Histories and Possibilities (2014) (unpublished manuscript); ENVIRONMENT SUPPORT
GROUP, A BRIEF STUDY OF STREET VENDORS IN THE CITY OF BENGALURU (October 2010); C.N. Ray
& Assem Mishra, Vendors and Informal Sector A Case-Study of Street Vendors of Surat City,
(November 2011); DARSHINI MAHADEVIA, SUCHITA VYAS & ASEEM MISHRA, INFORMAL ECONOMY
M ONITORING STUDY: STREET VENDORS IN AHMEDABAD, INDIA (2014); Saha, supra note 119;
Joseph Kweku Assan & Thomas Chambers, Indias street vendors and the struggle to sustain
their livelihoods and informal enterprises: Unionization, political action and sustainable
development, 3(11) INTERNATIONAL JOURNAL OF DEVELOPMENT AND SUSTAINABILITY 2140-2161 (2014);
Strengthen and Harmonize Research and Action on Migration (SHRAM) website, supra note 127.
For earlier surveys, see BHOWMIK, supra note 124; SNDT WOMENS UNIVERSITY AND ILO,
STUDY OF STREET VENDORS IN MUMBAI (1999); RN SHARMA ET AL, CENSUS OF HAWKERS ON BMC
LANDS (1998).
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of spatial justice implicated within the regulation of urban street vending. For
example, Arjun Appadurai and Partha Chatterjee, in two classic texts that look at
distinct discursive spaces, give us an inkling of what is at stake in imagining a
genuine street order that can generate the sufficient and necessary conditions for
a rich tapestry of urban living in modern India.142
Can we hope that promoting street vending in Indian cities will resolve the problems
of a homeless beggar child who begs automobile travellers to buy stickers or ballpoint pens or cheap toys at the many traffic signals across Indias cities? Can we
hope that promoting street vending in India will ameliorate or liberate the
transgendered beggar/entertainer/sex-vendor on Indian streets? Will the promotion
of street vending increase or decrease slums and other illegal and/or informal
urban settlements in India? Will the promotion of urban street vending promote
unmanageable migration to cities by former farmingcommunities? Will the
promotion of street vending truly empower poor urban entrepreneurs or will it
serve the interests of well-organised urban mafias that exploit street vendors and
beggars in India? Will street vending make our cities more plural and more liveable
or will it result in a large number of people withdrawing from public spaces to
private gated communities? Is a particular street vendor a member of a marginalized
community desperately in need of protection or is she a calculating entrepreneur
unfairly cashing in on state largesse or is she a criminal body and encroacher on a
spatio-normativised street? Does justice with regard to street vending involve the
politics of recognition or redistribution or redemption or some combination
thereof? These questions do not have easy answers, and I will not belabour the
point here, except to say that urban street vending in India can be fully encouraged
and be legitimately entrepreneurial only when issues of beggary, of homelessness,
or rural dispossession, of urban criminality, of induced and involuntary migration,
of social exclusion, of gender and sexuality inequality, of neoliberal
reterritorialization, and of fetishized consumption, are also embraced within the
same frame of analysis.143
142 See Partha Chatterjee, Democracy and Economic Transformation in India, 43 ECONOMIC &
POLITICAL WEEKLY 53-62 (April 19, 2008); Appadurai, Spectral Housing and Urban Cleansing:
Notes on Millenial Mumbai, supra note 116.
143 For one study that attempts to see the urban issue in a multi-dimensional perspective, see
Mahmud, supra note 32. See also, Usha Ramanathan, supra note 39; Usha Ramanathan,
Ostensible Poverty, Beggary and the Law, 43 ECONOMIC & POLITICAL WEEKLY 33-44 (November
1, 2008).
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individual space and rights may be highly restricted, and where much
in the way of modern amenities may be limited or absent. These
humble objects of domestic life are thus proleptic tools of a domesticity
without houses, houseless domesticity. In the purchase and assemblage
of these objects, which imply a domestic plenitude that is surely
exaggerated, Bombays working poor and nonprofessional service
classes produce their own spectral domesticity, which in its sensuous,
cash-based, pleasurable social reality recognizes the shrinking horizon
of the actual houses in which these objects might have a predictable
life. Of course, all modern shopping (in Mumbai and beyond) has
the anticipatory, the imagined, the auratic, and the possessive about
its ethos. But street shopping in Mumbai, like public sleeping, is a
form of claim to housing that no one can contest or subvert in the
city of cash. This is where the specters of eviction meet the agencies
of consumption.144
In the concluding part of this essay, I offer a brief account of the context and
sources of street vending law in India while noting its possibilities for interstitial
spatial justice in the context of Indias unique modernity. Conceptualising street
vending in India [for development planning, public law, and regulatory
enforcement] is a truly formidable challenge. For starters, the foundational
parameters implicated in Indian law and governance getting it right include a
messy federal constitutional order, a post-colonial society not fully clear on how
to interpret its own historical narrative and place in modernity, fuzzy property
law regimes, a history of notoriously corrupt and inefficient state functionaries,
and a political consciousness that resists easy identification with rights-centric
liberal European vocabularies. Second, street trade involves deeply contested and
highly contextual considerations of health, novelty value, variety of goods, aesthetic
impact, economic impact, affordability, convenience, locational value, religious
strictures, caste norms, traditional appropriateness, positive and negative
externalities including impact on public order, street congestion and crime, impact
on migration and population, transport complementarity, impact on tourism,
enterprise capacity, employment generation, relevant spatial preferences and
144 Appadurai, Spectral Housing and Urban Cleansing: Notes on Millenial Mumbai, supra note 116,
at 636-643.
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the National Policy on Urban Street Vendors, 2009 revised and updated the older
2004 National Policy on Urban Street Vendors.150 While both policy documents
recognised the importance of natural markets, and explicitly stated that street
vending provided meaningful employment and valuable products and services to
a wide range of persons, the 2009 policy documents marked several advancements
over the older 2004 policy. While the 2004 policy considered spatial planning
norms strictly in terms of vending zones and non-vending zones, the 2009 policy
advocated free-vending zones, restricted-vending zones, and no-vending zones.
Second, the 2009 policy clarified the three different types of street vendors
(stationary, peripatetic, and mobile), and provided detail and clarity as regards
policy imperatives pertaining to peripatetic and mobile vendors. Third, the 2009
policy introduced clarity on the principles for determining quantitative norms
for street vendors through the introduction of holding capacity terminology.
Fourth, while the 2004 policy was unclear on licensing and its relation to vendor
registration, the 2009 policy clarified that licensing pertains to site/space allotment
for stationary vendors whereas registration applies to all kinds of vendors. Fifth,
the 2009 policy clarified the provisions in the 2004 policy as regards the
composition, duties and functions of the Town Vending Committees. Finally,
the 2009 policy clarified the uncertainty relating to planning authority terminology
in the 2004 policy through the use of the defined term local authorities. Apart
from these changes, the 2009 policy improved upon the 2004 policy on a number
of related other areas: provision of civic facilities, registration procedures,
registration fees, collection of revenue, eviction, relocation, confiscation,
organisation of vendors, participative processes, public health and hygiene, selfregulation, credit and insurance, rehabilitation of child vendors, education and
skill development, housing, social security, monitoring and review, dispute
settlement, and capacity building. Despite these detailed provisions, the policy
pertaining to urban street vending was rarely followed in spirit and many
governmental authorities remained unaware of their basic obligations as required
by these policy prescriptions.151
Legal restrictions on the right to street vending are to be found in a wide variety
151 For useful overviews, see Sinha & Roever, supra note 139; Cheryl Deutsch, Implementing the
National Policy on Urban Street Vendors: A State-by-State Status Report, YUVA (May 2009);
Final Report of the National Workshop on Debating the National Policy on Urban Street Vendors:
A Trans-City Interrogation, URBAN RESEARCH AND POLICY PROGRAMME, NATIONAL INSTITUTE OF
ADVANCED STUDIES, BANGALORE, (August 13, 2012).
51
152 For an overview of some of the municipal, city and state level laws applicable to street vending,
see NASVI, STREET VENDORS: HANDBOOK ON LAW, POLICY AND JUDGMENTS (2012); Darshini
Mahadevia, Suchita Vyas, Alison Brown & Michal Lyons, Law, Rights and Regulation for Street
Vending in Globalising Ahmedabad, WORKING PAPER 1: LAW, RIGHTS AND REGULATION IN THE
INFORMAL ECONOMY ESRC-DFID RESEARCH PROJECT (July 2012); BHOWMIK, supra note 124;
See also, Sinha & Roever, supra note 139.
153 Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL
WEEKLY 2140-2146 (May 27, 2006), at 2140.
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to exist even after the passage of the national street vending legislation in 2014, the
exact scope of their continued operation remains unclear and therefore requires
careful analysis and elaboration.
It should also be noted that India is a party to several international agreements
relevant to the regulation of street vending including the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), the
Convention on the Rights of the Child (CRC), the International Convention on
Civil and Political Rights (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR), and over forty two International Labour
Organisation (ILO) Conventions that (should) influence executive and judicial
interpretation and have an enforceable effect when there is a lacuna in the domestic
law on the point.154
The enactment of the national legislation in 2014 followed a long series of judicial
pronouncements. The heightened momentum behind a national street vendor
legislation in recent times traces back to October 2010 when a Division bench of
the Supreme Court of India (Justice G.S. Singhvi and Justice A.K. Ganguly) in
Gainda Ram v. MCD reiterated that the right to street vending was a fundamental
right protected under Article 19(1)(g) of the Constitution of India.155 Significantly,
the Supreme Court in Gainda Ram v. MCD also held that this right could be
reasonably restricted only through a law (and not through governmental/municipal
schemes), and therefore mandated that legislation be enacted by the appropriate
Government by 30th June, 2011.156 While a legislation was not enacted by 30th
June, 2011, a Division Bench of the Supreme Court (Justice G.S. Singhvi and
154 For greater detail on international human rights norms relevant to protection of street vendors
in India, see Working Paper Developing National Street Vendor Legislation in India: A
Comparative Study of Street Vending Regulation, TRANSNATIONAL DEVELOPMENT CLINIC JEROME
N. FRANK LEGAL SERVICES ORGANIZATION -YALE LAW SCHOOL, 11, 12 (January 2011).
155 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraph 77. The fundamental right of street
vendors to carry on business on public streets under Article 19(1)(g) of the Constitution of India
had been articulated by the Supreme Court in earlier decisions including Saudan Singh v. NDMC,
(1992) 2 SCC 458; Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155;
Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 545; Olga Tellis v.
Bombay Municipal Corporation, (1985) 3 SCC 545.
156 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraphs 77, 78.
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159 Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, AIR 2004 SC
416, at paragraph 14.
160 Id., at paragraph 18.
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Netaji Subhash Chandra Bose Road and Rattan Bazaar in Chennai in their
(eventually unsuccessful) case against the street vendors. The constitutional position
in India, briefly summarised, seems to be that street vending is an enforceable
fundamental right under Article 19(1)(g); this right is however subject to existing
or new laws that impose in the interests of the general public, reasonable restrictions
on the exercise of the right in accordance with Article 19(6) of the Constitution of
India.164 The major difference in the thrust of the 2010 Gainda Ram judgment
and the 2013 Maharashtra Ekta Hawkers Union judgment on the one hand and
stocks, which they cannot sell, because either the design is not in vogue or the demand for such
type of goods no longer exists, or due to rejection of goods by foreign buyers they could not be
exported but still of good quality etc. Furthermore, when vegetables, fruits, flowers are required,
general public invariably look forward to a hawker rather than go in for such stuff in shops,
which are unreasonably expensive. The economic condition of people is such that they look
forward to hawkers, who alone could sell for lesser price, the type of goods carrying a quality
which would suffice their needs and aspirations. Quite often the shop owner, before whose shop
the hawker is trading, depends on him for clearance of his accumulated stock, for a small margin
he may earn. Even a shop owner who complains about the existence of hawkers, as he returns
home buys his other household requirements from these hawkers. In many leading cities in the
world on certain days in a week, the vehicular traffic in the earmarked street is prohibited, and
hawkers congregate, and public in large numbers gather to buy their requirements. Hence it is
not as if this type of trade is found only in India. It could never be characterised as an illegal or
unethical trade. Mainly because public authorities have failed to regulate their locations, it has
resulted in a grievance being made by shop-owners, as if it is a trade that should be excluded. If
regulatory measures are introduced, bearing in mind the requirements of the public of free access,
public hygiene, public safety and the like, they can also prosper and the general public thereby be
benefited. If specific plots are allotted and they are confined to those portions, there could be no
conceivable objection for such a lawful trade to be carried out, particularly when it would provide
an honest livelihood for those who have meagre capital but have a keen desire to carry on a trade.
Once regulatory measures are introduced, it could never be a public nuisance. This insightful
decision has been referred to in the Sodan Singh case where V.M. Tarkunde (amongst others)
argued for the petitioners and Justice Sharmas judgment states that if properly regulated according
to the exigency of the circumstances, the small traders on the side-walks can considerably add to
the comfort and convenience of the general public, by making available ordinary articles of
everyday use for a comparatively lesser price. An ordinary person, not very affluent, while
hurrying towards his home after a days work can pick up these articles without going out of his
way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)g
of the Constitution, on street pavements, if properly regulated cannot be denied on the ground
that the streets are meant exclusively for passing or re-passing and no other use. See Sodan Singh
v. New Delhi Municipal Committee, (1989) 4 SCC 155, at paragraph 16.
164 While a detailed analysis is not possible here, further constitutional guidance relevant to informality,
street vending, urban governance and the operation of the economic system may be sourced in
provisions including the Preamble, Articles 14, 19, 21, 38, 39, 39-A, 41, 42, 43, 43-A, 47, 48-A,
243-P to 243-ZG (read with the 12th Schedule), 265, 276, 301, 302; entries 1,2, 5, 6, 8, 26, 27, 28,
49, 52, 56, 60 of List-II (State List); and entries 2, 3, 15, 18, 20, 21, 22, 23, 24, 26, 33, 33-A, 34, and
43 of List-III (Concurrent List) of the Constitution of India.
57
165 For a recent overview of some of the problems in implementing the new legislation, see Sampath,
supra note 138. For critiques of the 2012 Bill and 2013 Bill, see Ayani Srivastava et al, Formalising
the Informal Streets: A Legislative Review of the Street Vendors (Protection of Livelihood and
Regulation of Street Vending Bill, 2012, 4 JOURNAL OF INDIAN LAW AND SOCIETY 247-274 (2014);
Rohan J. Alva, The Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Bill, 2013: Is the Cure Worse than the Disease, 35(2) STATUTE LAW REVIEW 181-202 (2014).
166 JACOBS, supra note 47.
167 Recommendation 17 states: Street vending should be encouraged to make the bus stops and
footpaths safe for communities and pedestrians, in addition to providing street food for the
common man. See GOVERNMENT OF INDIA, REPORT OF THE COMMITTEE ON AMENDMENTS TO
CRIMINAL LAW 421 (2013), http://www.prsindia.org/uploads/media/Justice%20verma%
20committee/js%20verma%20committe%20report.pdf.
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counter the menace of rape.167 Another major challenge for the national street
vending legislation will be to ensure that formalising street vending does not simply
result in greater surveillance, greater harassment, and increased bribe-seeking all
of which would simply encourage street vendors to transgress, evade and undermine
the applicable (legal and spatial) regulatory frameworks.168 Other challenges will
involve the fair rationing and allocation of limited high-value space, appropriately
incentivising street vendors to genuinely formalise their livelihood practices, the
norms for identification and de facto maintenance of no-vending and restrictedvending zones, the competence and integrity of decentralised administrative
mechanisms for implementation, and finally, the difficult task or harmonising
street vending laws with other laws (relating to crime, public order, transport,
city planning, etc.).169 Sufficient municipality level information on the ongoing
implementation of the new street vending law is simply not yet available to enable
a prediction on whether the law will effectively promote or suppress spatial justice;
the devil, so to speak, lies in the details of the plans, schemes, rules, orders, circulars,
guidelines etc. formulated by urban officials (and possibly, city dwellers) in response
to the requirements of the new law and the demands of potential beneficiaries and
other interested political participants.
Five discrete areas within the 2014 Act that immediately require greater clarity
are: 1) Conceptual clarity on the importance of scheme, rules, plan and
bye-laws within the Act and the relationship between these legal terms with
168 On this point, see PAUL STOLLER, MONEY HAS NO SMELL: THE AFRICANIZATION OF NEW YORK CITY
(2002); Arvind Rajagopal, The Violence of Commodity Aesthetics: Hawkers, Demolition Raids,
and a New Regime of Consumption, 19(3) SOCIAL TEXT, 91-113 (2001); Jonathan Shapiro Anjaria,
The Politics of Illegality: Mumbai Hawkers, Public Space and the Everyday Life of the Law, inSTREET
VENDORS IN THE GLOBAL URBAN ECONOMY, supra note 101, at 69-86.
169 See also Amlanjyoti Goswami, supra note 123, for a useful critique of the current street vending
law. For a useful comparative survey and a clear identification of areas of tensions and complexity
within street vending law in India, see Working Paper Developing National Street Vendor
Legislation in India: A Comparative Study of Street Vending Regulation, supra note 154.
170 See in particular 21, 36, 37, 38, and the First Schedule and the Second Schedule of the 2014
Act.
171 29(1) states: Nothing contained in this Act shall be construed as conferring upon a street
vendor any temporary, permanent or perpetual right of carrying out vending activities in the
vending zones allotted to him or in respect of any place on which he carries on such vending
activity.
59
172 27 states: Notwithstanding anything contained in any other law for the time being in force,
no street vendor who carries on the street vending activities in accordance with the terms and
conditions of his certificate of vending shall be prevented from exercising such rights by any
person or police or any other authority exercising powers under any other law for the time being
in force and Section 33 states: The provisions of this Act shall have effect notwithstanding
anything inconsistent therein contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.
173 18(1) states: The local authority may, on the recommendations of the Town Vending
Committee, declare a zone or part of it to be a no-vending zone for any public purpose and
relocate the street vendors vending in that area, in such manner as may be specified in the scheme.
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*
1
Sanaa Ahmed is a journalist who writes on legal and political issues. She holds an LLM from the
University of Warwick and an LLB from the University of Karachi.
I rely on Braithwaite & Drahos understanding of regulation as an umbrella term for rules,
norms, standards and guidelines. Financial regulation, as Braithwaite & Drahos see it, pertains
primarily to the regulation of banks and non-bank financial institutions, money laundering,
companies and securities firms, insurance, and taxation. They do recognise, however, that the
procedural application of such regulation also brings standards related to accounting, auditing,
corporate governance, and payments systems into the ambit of financial regulation. Comparatively,
the joint IMF-World Bank Financial Sector Assessment programme also adds data dissemination,
fiscal transparency, insolvency and creditor rights, monetary, and financial policy transparency
to this list as standards and codes that must be monitored for effective regulation of financial
systems. Braithwaite & Drahos use of the term deregulation contrasts with that of other
authors such as Hardt and Negri who argue that free markets do not feature less political control
and intervention but merely those of a different kind. The process would then qualify as reregulation. See JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION (2000); MICHAEL
HARDT & ANTONIO NEGRI, MULTITUDE 168 (2004).
61
INTRODUCTION
The most remarkable feature of global financial regulation2 is the difficulty in
holding any one institution or regulator responsible for it. There is a vast and
rich body of literature interrogating the normative commitments, the underlying
ideology, and the politics informing the governance of the global political
economy.3 Contemporary scholarship has problematised various aspects of global
economic governance, its components international trade and investment,
development, and debt as well as its implications for the subaltern: who is
regulating whom, on whose behalf, why and how, and to what effect. In each
instance, the implementing institutions and the authors of regulation, such as the
World Trade Organisation (WTO), International Financial Institutions (IFIs) or
transnational corporations, as well as the interests they represent, are easily
identifiable. There is a distinct body of rules with clearly defined consequences
for non-compliance. There is a fierce debate on and contestation of the regulatory
power wielded by these organisations, as well as their enforcement capabilities.
Finally, the debilitating economic, social, and political consequences of these
decisions are widely recognised. Animating these debates are concerns regarding
the accountability, legitimacy, and transparency of these institutions and their
decision-making processes, as well as the consequent impact on national sovereignty
and democracy in the developing South.
Braithwaite & Drahos define the globalisation of financial regulation as the spread of some set
of regulatory norms. See BRAITHWAITE & DRAHOS, supra note 1, at 8. As they see it, globalisation
operates at the level of specific rules and at the level of general principles. Distinguishing principles
and standards are the facts that standards are used as measures of conduct and can have a high
level of specificity. See BRAITHWAITE & DRAHOS, supra note 1, at 19. The scope of this article,
however, precludes such a distinction.
See generally Saskia Sassen, Sundhya Pahuja, Sol Picciotto, Stephen Gill, David Schneiderman,
and James Thuo Gathhi. Global political economy here is understood as the interaction of the
market and actors such as states, multinational corporations and international organisations. See
ROBERT GILPIN, GLOBAL POLITICAL ECONOMY: UNDERSTANDING THE INTERNATIONAL ECONOMIC
ORDER (2001).
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4
5
For useful discussions on financial regulation, see generally, Julia Black, Chris Brummer, Emily
Lee, Rolf Weber and Antonio Segura-Serrano.
Contagion occurs when cross-border capital flows transmit economic shocks. Contagion may be
divided into two forms: economic contagion, which occurs through trade and investment flows,
and pure contagion, which arises from changing risk appetite among investors and can lead to
reverse capital flows from emerging markets. See KERN ALEXANDER ET AL., GLOBAL GOVERNANCE
OF FINANCIAL SYSTEMS: THE LEGAL AND ECONOMIC REGULATION OF SYSTEMIC RISK (2005).
Precise definitions of systemic risk are hard to come by, although, as the phrase suggests, the
phenomenon has to do with the risk posed to the functioning of the financial system. Wilmarth,
for example, defines it as the risk that the failure of a major financial institution will severely
disrupt the financial system and will have adverse spill over effects on the general economy. See
Arthur E. Wilmarth, Controlling systemic risk in an era of financial consolidation, (2002),
http://www.imf.org/external/np/leg/sem/2002/cdmfl/eng/wilmar.pdf; comparatively,
Alexander et al. define systemic risk as arising from the mispricing of risk in financial markets,
which often means that risk is under-priced in relation to its costs and that the under pricing of
risk results in too much of it being created in financial markets can arise from problems with
payment and settlement systems or from some type of financial failure that induces a
macroeconomic crisis. See ALEXANDER ET AL., supra note 5, at 23. Systemic risk inherent to
international banking includes global systemic risk (the risk that the failure of one significant
bank will cause the collapse of the entire banking system); safety and solvency risks that arise
63
7
8
9
10
from imprudent lending and trading activity, and the risks to depositors through the lack of
adequate bank insurance. Systemic risk matters because high levels can lead to bank failures,
which can, in turn, pose a threat to the financial system and the broader economy. This is because
banks play an important role in payments and clearing systems; bank failures have an underlying
potential for a bank run; and the threat of contagion due to the interconnected nature of banks.
Ex ante measures to manage systemic risk include capital adequacy requirements, large exposure
limits and limitations on lending while ex post measures include deposit insurance and the lender
of last resort function.
See, for example, Michele Frantianni & John Pattison, International Financial Architecture and
International Financial Standards, 579 ANNALS AM. ACAD. POL. & SOC. SCI. 183 (2002).
For a lucid account of the procedural problems with global financial governance, see Jonathan
Ward, The New Basel Accord and Developing Countries: Problems and Alternatives, CAMBRIDGE
UNIVERSITY (2002), http://www.cerf.cam.ac.uk/publications/files/Ward04.pdf, and ALEXANDER
ET AL., supra note 5.
HARDT & NEGRI, supra note 1, at 168.
The purpose of prudential regulations is to help banks and other non-bank financial intermediaries
manage various types of risk such as credit, concentration, market, settlement, liquidity and
operational risk. ALEXANDER ET AL., supra note 5, at 24.
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the pervasive nature of control exercised. This discipline is both external (as enforced
by the official sector11 and the market) and internal (the self-disciplining involved
in complying with international best practices12). Compliance is secured through
the use of sophisticated disciplinary techniques such as watch listing, 13
conditionality, 14 and intrusive surveillance, 15 not unwieldy and obvious
enforcement mechanisms such as trade sanctions, or withheld loans.
This paper is structured into three sections. Part 1 advances the normative argument
of why financial regulation qualifies as a political, and not a technical issue, while
Part 2 offers a historical overview of the evolution of global financial markets and
regulation. Part 3 then moves into a discussion of the specific features of
contemporary regulation that enable regulators to exercise stringent control and
effect the global harmonisation of rules, regulations and standards.It is argued
that the unproven utility of financial regulation, the democratic deficit in the
devising of regulation, coupled with the pervasive nature exercised by regulators
make it necessary to examine whether global financial regulation is really as
worthwhile a project as it is made out to be.
11
12
13
14
15
The phrase refers to the IMF and World Bank as distinguished from the private sector.
Antony Anghie, Time present and Time Past: Globalisation, International Financial Institutions
and the Third World, 32 N.Y.U. J. INTL L. & POL. 243, 286 (2000).
BRAITHWAITE & DRAHOS, supra note 1, at 28.
Sundhya Pahuja, Technologies of Empire: IMF Conditionality and the Reincription of the North/
South Divide, 13 LEIDEN JOURNAL OF INTERNATIONAL LAW 749 (2000).
ALEXANDER ET AL., supra note 5, at 36.
65
amount they consume and produce, the number of people they employ, and so
on. A country featured on the Financial Action Task Force (FATF) blacklist
finds it difficult to make payments to its trading partners,18 which limits the amount
of capital goods it can import. Financial factors are thus at the core of overall
economic performance. 19 Consequently, as Picciotto argues, they have
(re)distributional consequences or implications20 far beyond what is envisaged
by a technicist view of social management.21
Contemporary global financial regulation is problematic on both the conceptual
and the operational level. On the conceptual level, as Picciotto reasons, regulations
which impact livelihoods, health and living standards are necessarily political in
character. As such, assigning their formulationto an unelected technical body
runs counter to democratic practices.22 Secondly, despite deep official sector inroads
on state sovereignty in many developing countries, economic policy formation
and finance ministries are still essentially political. Why should financial policies
and central banks then be segregated from politics, especially when regulation
affects the prospects of democracy as well?23
16
17
18
19
20
21
22
23
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26
27
28
29
30
67
and borrowing activities of multinational banks had created a two fold problem.
First, since no single regulator had jurisdiction over the entire international banking
system,31 they found it difficult to manage systemic risk on their own.32 Secondly,
regulators usually had poor quality information regarding the international
operations of domestic banks.33
To address the collective action and information problems described above, the
G-10 regulators and central bankers met at Basel in 1975 to form the Basel
Committee for Banking Supervision. This was the first global standard-setting
body. The self-confessed initial aim was to close gaps in the supervisory net34
through international cooperation but the wider objective was to improve
supervisory understanding and the quality of banking supervision.35 These goals
were to be met by exchanging information on national supervisory arrangements;
improving the effectiveness of techniques for supervising international banking
business; and setting minimum supervisory standards in desirable areas.36 The
resulting Basel Concordat was a set of voluntary, legally non-binding, international
standards and rules of prudential supervision for the regulation of financial
institutions, payment systems and foreign exchange markets designed to apply
to just the G-10 countries.37
33
36
37
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42
43
44
The latter alone cost the government some 151 billion dollars in bailout packages. Supra note 25.
Accordingly, the Office of the Comptroller of the Currency and the Federal Reserve set minimum
capital requirements for the multinational banks. Id.
GILPIN, supra note 3, at2 75. This is because banks subject to higher capital adequacy requirements
have less money to lend than those with lower CARs. This, of course, means that the better
capitalised banks make less profit than the others.
GILPIN, supra note 3.
Interestingly, the implementation of the higher capitalisation requirements subverted the touted
objective of stability. The prescribed capital adequacy ratio for short-term loans was a significantly
lower two per cent of outstanding loans. As a corollary to this directive, most banks started
focusing on short-term lending which, apart from the economic detriment (economic growth
usually accompanies long-term, productive investments) also introduced more volatility into the
banking system through an increase in speculative activities and time mismatches between assets
and liabilities of borrowers (that is, loans would typically mature before the investments). Supra
note 34.
Supra note 34.
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46
47
48
49
BRAITHWAITE & DRAHOS, supra note 1, at 105. Money laundering outranks uniform accountancy
standards, harmonising tax, macroeconomic policy coordination and even capital adequacy for
banks, something the authors find somewhat shocking. BRAITHWAITE & DRAHOS, supra note 1,
at 142. Compliance with money laundering standards is more strictly monitored than other
financial standards. BRAITHWAITE & DRAHOS, supra note 1, at 106. Interestingly, however,
Delaware, Nevada and Montana in the US are still the biggest money laundering havens in the
world. JEFFREY ROBINSON, THE SINK 328 (2003).
The realist edge is that the US state gets domestic political kudos by painting the drug problem
as a foreign conspiracy to corrupt the US that must be fought as a war. BRAITHWAITE & DRAHOS,
supra note 1, at 105, 391.
The war on drugs was a convenient weapon against General Noriega and his ilk while the CIA
has an interest in being a major launderer of dirty money itself, while making it harder for the
competition to do so. BRAITHWAITE & DRAHOS, supra note 1, at 105. According to the authors,
a consequence of the militarization of the war on drugs under Nixon, Reagan and Bush was that
drug interdiction was subordinate to the foreign policy goal to the defeat of communism.
BRAITHWAITE & DRAHOS, supra note 1, at 390. Post 9/11, the comparable foreign policy objective
would probably be the defeat of terrorism.
Braithwaite & Drahos cite FATF figures stating that up until 1990, only six countries had chosen
to model the US practice of declaring money laundering a specific criminal offence. BRAITHWAITE
& DRAHOS, supra note 1, at 105.
BRAITHWAITE & DRAHOS, supra note 1, at 106. Significantly, the Basel principles predate the UN
Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
71
52
53
54
With apologies to Shakespeare for the liberty taken with his Merry Wives of Windsor.
Although the WTO plays no role in setting domestic financial regulatory standards, the freetrade principles of the GATS may influence how other international organisations and standardsetting bodies devise international standards of financial regulation. Meanwhile, the EU regulatory
system has also come up with minimum harmonised standards for prospectuses for initial public
offerings, market abuse, and insider trading, as well as money laundering. ALEXANDER ET AL.,
supra note 5, at 9-10.
Committee on Payments and Market Infrastructures, BANK FOR INTERNATIONAL SETTLEMENTS,
http://www.bis.org/cpmi. The bifurcation is interesting because till 2009, the CPSS comprised
the same set of members as the Basel Committee the G10 central bankers. Delonis, supra note
23, at 590. In 2009, the list of members was expanded to 25, including, notably, Brazil, Russia,
India and South Africa.
List of Standards, Codes, and Principles, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/standards/scnew.htm
I owe the phrase to BRAITHWAITE & DRAHOS, supra note 1, at 13.
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73
international financial stability.60 Secondly, given the emphasis on the need for
independent central banks, the members are unaccountable to even those within
their domestic jurisdictions.
Although the committee has tried to involve non-member countries in various
aspects of the standard setting process,61 this involvement has remained limited to
consultation and the actual decision making remains controlled by the G10
countries.62 The coterie is renowned for their secretive decision-making and
over-reliance on personal contacts.63 Given its exclusivity as well as the lack of a
mandate from other countries, the committee, strictly speaking, has no business
devising rules for the world. But the committee located a mandate for itself in a
communiqu issued by the G7 Heads of State in 1997 that encourage[d] emerging
economies to adopt strong prudential standards and effective supervisory
structures. The Committee interpreted the G7 communiqu as authority for
it to devise global capital standards and other core principles of prudential
regulation for all economies where international banks operate[d].64 Even so, this
is unsatisfactory and insufficient authority for an agency that affects the lives of
the non-G10 countries as well. First, the regulatory initiative came from the G7,
not the emerging markets that were supposed to implement the same. Secondly,
the G7 effectively delegated an authority they did not possess.65
The securities markets are also beset with similar issues. The International
Organisation of Securities Commissioners (IOSCO) began in 1974 as an interAmerican regional association.66 The decision to go global was taken by the 11
North and South American members in 1983. The new organisation was intended
as a forum for the worlds regulators to meet, discuss and agree on policies and
60
61
62
63
64
65
66
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best practices. While IOSCO ranks higher than the Basel Committee on the
democratic scale it boasts 200 members from more than 110 countries67 it too
is still learning democratic decision-making. Up until 2012, for example, the task
of determining regulatory priorities and devising standards fell to the lot of the
IOSCO Technical Committee, which featured only 15 regulators from the worlds
most developed securities markets including the G10.68 While all members were
provided with the opportunity to voice their concern on all proposals, most of
the practical bargaining and shaping of issues took place in closed-door Technical
Committee meetings.69 Significantly, the meetings are off-limits for even other
IOSCO members. While all members were entitled to vote on proposals, in
practice, the decision of the Technical Committee was final. This was not only
because of the expertise of its members but also because of the fact that the issues
raised concerned the worlds leading financial markets.70
In 2012, the standard-setting functions of the Technical Committee were taken
over by the IOSCO Board, which features regulators from 34 jurisdictions
including several from the global South. But there is little to show whether and
to what extent decision-making is responding to the changes in governance
structures.
The FATF is similarly cliquish. It was established by the leaders of the G7 and the
president of the European Commission in 1989. Boasting a total of 16 members
drawn from the G7, the EC and eight other countries, FATF was to combat the
perceived threat posed by money laundering to financial stability.71Although the
number of members has since increased to 36, the global South is underrepresented
while the OECD contingent dominates.72 This is significant primarily because the
67
68
69
70
71
72
IOSCOs current membership list includes 200 ordinary, affiliate, and associate members.
Membership, INTERNATIONAL ORGANISATION OF SECURITIES COMMISSION, http://www.iosco.org/
about/pdf/IOSCO-Fact-Sheet.pdf.
ALEXANDER ET AL., supra note 5, at 58. For an exhaustive treatment of IOSCOs institutional
structure, see ALEXANDER ET AL., supra note 5.
ALEXANDER ET AL., supra note 5, at 59.
ALEXANDER ET AL., supra note 5, at 59.
Regulations, F INANCIAL ACTION TASK F ORCE, http://www.fatf-gafi.org/pages/aboutus/
historyofthefatf.
Interestingly, one of the criteria for membership listed on the FATF website is that the country
be of strategic importance. There is no explication as to what constitutes strategic importance,
Members and Observers, http://www.fatf-gafi.org/pages/aboutus/membersandobservers.
75
agency claims the regulatory ambit to safeguarding the global financial system
from money laundering and terrorist financing but has neitherthe representation
nor a mandate to match.73
Enforcement
The issue of enforcement should technically not arise. Global finance is governed
primarily by international soft law. As legally non-binding standards, principles
and rules that influence and shape state behaviour but do not fit into the traditional
categories of public international law and bi- or multilateral treaties,74 soft law
unlike hard law does not imply obligation.75 By definition then, soft law
precludes both enforcement and penalties for breach.76
Consequently, all the agencies referred to stress the voluntary nature of their
recommendations, guidelines or principles. The Basel Committee, for
example, insists that it does not have any formal supranational supervisory
authority and that itformulates its recommendations in the expectation that
individual national authorities will implement them.77
However, as Lichtenstein argues, the characterisation of a particular norm
embedded in a regulatory regime as either hard or soft does not matter. What
matters instead is the process of obtaining effectiveness , the methodology of
better international dealings and cooperation.78 And this seems to be the approach
taken by the regulators.
On the face of it, the Basel Committees emphasis on the role of individual
authorities and decentralised implementation of standards one echoed by both
IOSCO and FATF79 suggests that the process for obtaining effectiveness or
73
74
75
76
77
78
79
The mandate for 2012-2020 was endorsed only by its members. Final Mandate, FINANCIAL
ACTION TASK FORCE, http://www.fatfgafi.org/topics/fatfgeneral/documents ministersrenewthe
mandateofthefinancialactiontaskforceuntil2020.html.
ALEXANDER ET AL., supra note 5, at 59.
Quote attributed to Sir Joseph Gold in Cynthia Crawford Lichtenstein, Hard Law v. Soft Law:
Unnecessary Dichotomy?, 36 INTL LAW.1433 (2001).
Id.
Supra note 34 (emphasis added).
Supra note 75, at 1440.
Objectives and Principles for Securities Regulation, INTERNATIONAL ORGANISATION OF SECURITIES
COMMISSIONS, http://www.iosco.org/library/pubdocs/pdf/IOSCOPD154.pdf.
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80
81
82
83
84
85
The term here refers to a subtle form of coercive enforcement conducted by popularising the use
of the prescribed standards and codes.
ALEXANDER ET AL., supra note 5, at 37.
Supra note 34.
What the IMF Does, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/work.htm.
The 12 key areas of operations are anti-money laundering and the combating of terrorism,
accounting, auditing, banking supervision, corporate governance, data dissemination, fiscal
transparency, insolvency and creditor rights, insurance supervision, monetary and financial
policy transparency, payments systems, and securities regulation. Reports on the Observance of
Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/rosc/
rosc.asp.
These include data dissemination; fiscal policy transparency and monetary and fiscal policy
transparency. Interestingly, even the Code of Good Practices on Transparency in Monetary and
Financial Policies was developed in conjunction with the Basel Committee, the Center for Latin
American Monetary Studies (CEMLA), CPSS, European Central Bank, International Association
of Insurance Supervisors (IAIS), International Finance Corporation, IOSCO, OECD and the
World Bank. Code of Good Practices on Transparency in Monetary and Financial Policies,
INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/mae/mft.
77
Accountants.86 With the IMF as principal enforcement agent87 then, the standards
and codes authored by these agencies work their way into the fabric of all
international economic transactions and relationships.88 This technique of
enforcement operates within the official sector as well as at the level of the market.89
Within the IMF, these standards and codes are a crucial component of four of its
five functions. First, the IMF usually works in almost all of its officially supported
standards and codes into its loan agreements with states.90 The Basel standards, for
example, are routinely part of loan packages and compliance was a condition on
at least seven of the loan arrangements made to East Asian countries after the 1997
crisis.91 The IOSCO standards were similarly prescribed for at least one country92.
Further, in some cases, compliance with standards such as those of the Basel
Committee is a prequalification for IMF loans.93 In others, compliance is a
guarantee of better terms on the next loan.94
Secondly, and perhaps most importantly in the context of the relation between
standard-setting states and standard-receiving ones, the standards and codes are at
the heart of IMF surveillance operations. In 1977, surveillance of the general
economic situation and policy strategy of each member country95 became a key
86
87
88
89
90
91
92
93
94
95
List of Standards, Codes and Principles Useful for Bank and Operational Work and for which
Reports on the Observance of Standards and Codes are Produced, INTERNATIONAL MONETARY
FUND, http://www.imf.org/external/standards/scnew.htm. For an interesting discussion of
the origins of the standards, see Delonis, supra note 23. The fact that these standards come from
sources other than the IMF could theoretically pose a problem because the Fund generally
prohibits cross-conditionality with the objectives of other organizations; however, as IMF General
Counsel Francois Gianviti has stated, If the Fund concludes . . . that certain reforms need to be
made to give effect to its own purposes, the fact that these actions will give effect to other treaties
. . . cannot bar the Fund from making them a condition of its financial assistance. Delonis,
supra note 23, at 597.
Delonis, supra note 23, at 595.
Delonis, supra note 23, at 623-4.
Delonis, supra note 23, at 95-6.
Delonis, supra note 23, at 597.
Delonis, supra note 23, at 598-601, 603.
Delonis, supra note 23, at 598-601.
ALEXANDER ET AL., supra note 5, at 39.
Delonis, supra note 23, at 612.
IMF Surveillance Fact Sheet, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/
np/exr/facts/surv.htm.
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part of IMF operations. In 1995, the IMF began its data dissemination work.96
But the most significant was the Financial Sector Assessment Programme (FSAP),
which was launched in 1999 in conjunction with the World Bank. With the
soundness of financial systems as its aim, the FSAP seeks to determine the strength
of a countrys financial system, the quality of its regulatory and supervisory
framework as well as its ability to manage and resolve financial crises and
accordingly dispense country-specific macro and micro prudential
recommendations.97 The programme hinges on detailed assessments of the extent
of a countrys compliance with financial sector standards and codes.98 Not only
are these assessments published as Reports on Observance of Standards and Codes
(ROSCs), the FSAP also provides the groundwork for the Financial Sector
Stability Assessments in which IMF staff address issues such as the stability of the
financial sector and its potential contribution to growth.99
This has two significant implications. First, since the Basel Committee/IOSCO/
FATF agencies with even less political legitimacy than the IMF itself conceive
these standards in the first place, in effect, it is they who decide whether a financial
system is sound or otherwise. Secondly, one sees the meticulous construction of
a multi-layered edifice, where each subsequent layer is validated by the one
preceding it and all rest on the base of standards and regulations.
Thirdly, the standards also have a bearing on the technical assistance function.
Requests for technical assistance by some developing countries are a corollary to
96
97
98
99
This comprises the General Data Dissemination System (approved by the IMF Board of
Directors in 1997), which is aimed at all members and provides recommendations of good
practice for the production and dissemination of macroeconomic and financial data (including
the real, fiscal, financial and external sectors) as well as socio-demographic data (population,
health, education, poverty). The Special Data Dissemination System (approved in 1996), on the
other hand, targets those countries having or seeking access to international capital and prescribes
specific macroeconomic and financial standards that must be adhered to. Other tools include
Special Data Dissemination Plus and Data Quality Reference Site. General Data Dissemination
System, INTERNATIONAL MONETARY FUND, http://dsbb.imf.org/Applications/web/gdds/
gddswhatgdds.
Financial Sector Assessment Program, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/fsap/fssa.aspx.
Supporting Documents Country FSPs, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/fsap/fsap.asp.
Fact Sheet- The Financial Sector Assessment Program, INTERNATIONAL MONETARY FUND, http://
www.imf.org/external/np/exr/facts/fsap.htm.
79
the surveillance process.100 Through the means of short-term staff missions, longer
term expert placement, training courses, workshops and additional staff reports
among others,101 technical assistance helps countries cope with the specific problem
of non-compliance102 as identified by the FSAPs. This point is critical because it
speaks of convergence as an end in itself, not as a possible cure for other
consequences that may flow from non-compliance.
In November 2002, for example, the IMF added the FATF recommendations to
its list of standards and codes. Along with the World Bank, the IMF then
substantially increased technical assistance available to those countries looking
to strengthen financial, regulatory, and supervisory frameworks for anti-money
laundering and the combating of terrorism.103 As such, the IMF and the World
Bank can be seen as the prime instruments of regulatory convergence.104
That said, the importance of the market cannot be underestimated. A study of
enforcement practices at the level of the market not only indicates the depth of
mainstreaming, it also shows how the market functions as an IMF amplifier. While
some commercial banks insist on IMF conditionality as a precondition to lending
to states, the debt clubs usually insist on an IMF clause in their agreements
with countries.105 Many private financial institutions and investors base investment
decisions on IMF surveillance data.106 As a result, the publication of compliance
data brings to bear an inordinate amount of pressure on a non-compliant state107
looking to the international financial markets for funds. Studies show that states
100 Delonis, supra note 23, at 571.
101 Technical Assistance and Training INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/exr/facts/tech.htm
102 This is substantiated by Braithwaite & Drahos assertion that capacity building by the IFIs tends
to focus on the transplant of regulatory models from one state to another and does not address
the more pertinent issue of building the capacity to manage those systems. BRAITHWAITE &
DRAHOS, supra note 1, at 138.
103 The IMF and the Fight Against Money Laundering and the Financing of Terrorism, INTERNATIONAL
MONETARY FUND, http://www.imf.org/external/np/exr/facts/aml.htm.
104 BRAITHWAITE & DRAHOS, supra note 1, at 115; ALEXANDER ET AL., supra note 5, at 36.
105 Pahuja, supra note 14, at 765, 749.
106 Delonis, supra note 23, at 609. Delonis cites the specific examples of Price waterhouse Coopers
and the California Public Employees Retirement System.
107 Delonis, supra note 23, at 595-6. In a similar vein, Braithwaite & Drahos recount the example of
how the US and UK coerced countries into complying with capital adequacy standards in 1987
by linking compliance with entry to their markets and threatening inefficient financial regulatory
systems with the spectre of loss of business. BRAITHWAITE & DRAHOS, supra note 1, at 132.
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with better compliance have lower debt risk premiums and that the publication
of ROSCs has a significant bearing on sovereign credit ratings.108 Given the
widespread interest in IMF data, even states use compliance as a signalling device
to potential trading partners and international investors in order to attract trade
and investment.109
Accountability For None?
The combined operation of the regulatory web, the institutional structures of the
agencies and the enforcement mechanisms makes assigning responsibility and
the locating of specific interests within this diverse set a Herculean task. There
is, of course, the issue of multiplicity. Take the example of the Know Your
Customer (KYC) regulation. The regulation has long been an integral part of the
Basel Core Principles for Effective Banking Supervision110 and the FATF guidelines
elaborate on the same in great detail.111 Meanwhile, both the Basel principles and
the FATF guidelines are used in the IMFs ROSCs.112 Today, KYC procedures
are a key requirement of most central banks and are accordingly woven into the
domestic legislative or regulatory fabric. But no single regulatory body can be
held accountable, or even responsible, for the regulation.113
Equally interesting are the issues of agency, both between the global and the
local and within the global web. On the one hand, the emphasis on the voluntary
nature of the standards not only sets up a false dichotomy between the global and
the local,114 it further imputes to the state/domestic regulators a degree of autonomy
108 Delonis, supra note 23, at 610-1
109 Delonis, supra note 23, at 611.
110 The explanatory notes to the 25 principles justify the regulation by claiming that even inadvertent
association with drug traders and other criminals can undermine public confidence in banks
and damage the banks reputation. The notes also recommend reference to FATF guidelines for
a more thorough treatment of how to implement KYC procedures: Core Principles for Banking
Supervision, BASEL COMMITTEE ON BANKING SUPERVISION, http://www.bis.org/publ/bcbs30a.pdf.
111 Regulations, FINANCIAL A CTION TASK F ORCE, http://www.fatf-gafi.org/document/27/
0,2340,en_32250379_32236920_33965659_1_1_1_1,00.html
112 Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/standards/
index.htmaccessed.
113 This statement is supported by Braithwaite & Drahos assertion that histories of globalisation
are complex and cannot be understood in terms of the agency of single actors using single
mechanisms. BRAITHWAITE & DRAHOS, supra note 1, at 31.
114 On the convergence of the national and global, see generally Sassen and Picciotto. Sassen refers
to the process as the blurring of duality between the national and global, state and non-state,
81
which is not evidenced by the workings of the global political economy. State
power is constituted by and helps constitute webs of regulatory influences
comprising many actors wielding many mechanisms to achieve globalisation.115
To paraphrase Santos, the world system, operating at the supra-state level, develops
its own systemic law. This is superimposed on the national law of the individual
states across the world system.116 Perceiving financial regulation as essentially
domestic is thus untenable. On the other hand, the global web of regulation and
the various interests it represents preclude the possibility of identifying a single
omnipotent agency or state. A community of the North is as close as one can
get to isolating a specific interest.
CONCLUSION
The subprime crisis of 2007 showed that even the most stringent regulation is not
enough to protect the global economy from the impact of financial crises in
interconnected financial markets. Since the crisis arose in the most developed
jurisdictions with arguably the best-regulated markets the calls for increasing
regulation are now being met with a healthy dose of scepticism. The less developed
markets that stand to acquire a hefty regulatory burden are now arguing that its
not their mess and they shouldnt have to clean it up, that too at such a high cost
to themselves.
Against this backdrop, the democratic deficit in the devise and spread of global
financial regulation underscores the need to interrogate both the substance as well
as the aims of global financial regulation. The norms of transparency and
accountability essential to good governance are severely lacking in the global
financial regulation project. Recent scholarship has stripped economic regulation
of its apolitical, technical pretensions and discovered a disturbing proclivity towards
colonial domination through economic means.117 How different is financial regulation?
private and public in ministries of finance, central banks and specialised technical regulatory
agencies while Picciotto speaks of the fragmentation of the public sphere as giving rise to
systems of layered governance based on regulation. See Saskia Sassen, The Participation of
States and Citizens in Global Governance, 10 IND. J. GLOBAL LEGAL STUD. 5 (2003); Picciotto,
supra note 20.
115 BRAITHWAITE & DRAHOS, supra note 1, at 31.
116 BOAVENTURA DE SOUSA SANTOS, TOWARDS A NEW LEGAL COMMON SENSE 67 (2002).
117 For accounts of the debilitating impact of neo-colonialism on the South, see generally Appadurai,
Anghie, Pahuja and Picciotto.
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INTRODUCTION
In the roughly sixty-seven years since Indian independence, the Indian legal system
has gone through numerous ups and downs and the results have been mixed.1 In
*
Shishir Bail is a Research Associate at the School of Policy and Governance, Azim Premji
University and holds a B.A. LLB (Hons.) degree from the West Bengal National University of
Juridical Sciences.
In addition to a general crisis of acceptance, the formal Indian court system has also suffered
observable problems of case delay, backlog and quality. For discussions of the problems with
respect to the Higher Judiciary see R. DHAVAN, LITIGATION EXPLOSION IN INDIA (1986) and N.
Robinson, A Quantitative Analysis of the Indian Supreme Courts Workload, 10(3) Journal of
Empirical Legal Studies 570 (2013).
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
this time, various diagnoses of both the problems as well as solutions have been
offered. Some views pose the problem as primarily one of case backlog and delay;
one which can only be remedied by an increase in judicial capacity.2 Other views
have criticised the substantive outcomes produced by the system and have cast
doubt on its ability to deliver access to justice and the rule of law for the
poor.3Alongside these, there is a third kind of critique that has been heard almost
since the inception of the Indian legal system. This critique is based on the idea
that the Indian legal system is alien, having been introduced by the British colonial
administration. This critique further argues that rather than the reform of this
legal system, what is needed is a return to indigenous processes of dispute
resolution.4
Though the formal court system has remained much the same since independence,
these ideas of indigeneity have at different times inflected debates on legal system
reform in India. The fact that many reform attempts have invoked, in one form
or another, visions of traditional, indigenous dispute resolution is proof of
their continuing currency among Indias legal policy establishment.5 Though there
are various examples of this, possibly the most notable of such forums were Nyaya
Panchayats. These forums, in sum and substance, attempted to bring ideas of
traditional, panchayat-based dispute resolution into the formal legal system. They
were also meant to provide a decentralised, accessible, somewhat particularistic
mode of dispute resolution for persons living in rural areas. Though introduced
For some of the problems with the lower judiciary see R. Moog, Delays in the Indian Courts: Why
the Judges Dont Take Control, 16(1) JUSTICE SYSTEM JOURNAL 19 (1992) and LAW COMMISSION OF
INDIA, 77TH REPORT: DELAYS AND ARREARS IN TRIAL COURTS (1978).
A useful overview of the numerous Government reports emphasising supply-side solutions to the
problem of backlog is provided by K. Hazra & M. Micevska, The Problems of Court Congestion:
Evidence from Indian lower courts, in A. K. HAZRA AND B. DEBROY, JUDICIAL REFORM IN INDIA:
ISSUES AND ASPECTS 137, 141-2 (2007).
See for instance P. Baxi, Access to Justice and the Rule of [Good] Law: The Cunning of Judicial
Reform in India (Institute of Human Development New Delhi on behalf of the UN Commission
on the Legal Empowerment of the Poor, Working Paper, 2007) and S. MURALIDHAR, LAW,
POVERTY AND LEGAL AID: ACCESS TO CRIMINAL JUSTICE (2004).
See Marc Galanter, The Aborted Restoration of Indigenous Law in India, 14 COMPARATIVE
STUDIES IN SOCIETY & HISTORY 53 (1972) for an examination of these kinds of critique both before
and immediately after independence. The continuing salience of these ideas is evident in the
legislative debate surrounding the Gram Nyayalaya Act as we show subsequently.
Some earlier instances of these are Nyaya Panchayats, discussed in more detail subsequently, and
Lok Adalats.
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around the time of Indian independence, by the late 1970s these forums had all
but vanished in most of the states in which they had operated.
After their extinction, the District and Taluka courts were the only state forums
for dispute resolution available to rural litigants for many years. This situation
continued until 2008, when the Parliament of India passed the Gram Nyayalayas
Act. This Act sought once more to create a system of decentralised and accessible
judicial institutions for rural litigants at the village level. At the time of the passage
of the Act, over 5,000 of these institutions were sought to be established, one for
each Taluka in the country.
Like Nyaya Panchayats, Gram Nyayalayas are intended to occupy the lowest tier
of the judicial hierarchy. Further, after Nyaya Panchayats, Gram Nyayalayas are
the next attempt by the Indian State to provide rural litigants access to village
level judicial institutions. For these reasons, the creation of these institutions gives
rise to a series of questions: do Gram Nyayalayas, like Nyaya Panchayats, also
attempt to recreate indigenous or traditional forms of dispute resolution? How
do these institutions differ from Nyaya Panchayats? These are the questions that
this paper engages with.
To answer these questions, this paper proceeds in the following manner. First, it
provides some context to demands for a return to indigenous dispute resolution
in the Indian legal system. This is done by looking specifically at the category of
the village panchayat. At various points in the history of legal reform in India
the village panchayat has been put forward as the ideal, traditional form of dispute
resolution that must be returned to. Nyaya Panchayats are in many ways a concrete
manifestation of the village panchayat idea of dispute resolution. The paper argues
that the failure of these institutions represents the unviability of this idea in designing
institutions for rural justice reform.
From there, the paper moves on to study the recently established Gram
Nyayalayas. First, the paper examines the structure of these institutions by looking
at the 114th Law Commission Report, which first recommended the creation of
these institutions, and the Gram Nyayalayas Act of 2008. Thereafter, the paper
discusses the results of field-work conducted on three Gram Nyayalayas in the
months of June and July 2013. The paper argues that in structure as well as
functioning, Gram Nyayalayas represent a move away from the village panchayat
85
From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
ideal of dispute resolution. For the most part, they are best seen as an expansion
of the formal court system to geographically remote areas.
For a careful account of this process see Marc Galanter, The Displacement of Traditional Law in
Modern India, 24 JOURNAL OF SOCIAL ISSUES 65 (1968).
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For an excellent discussion of these voices from the time of Indian independence onwards, see
M. Galanter, supra note 4.
LAW COMMISSION OF INDIA, 14TH REPORT: REFORM OF THE JUDICIAL ADMINISTRATION, 874 (1958).
CIVIL JUSTICE COMMITTEE, 1924-25 R EPORT, 105 (Government of India Central Publication
Branch, 1925).
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
B. S. Cohn, Anthropological Notes on Disputes and Law in India, 67(6) AMERICAN ANTHROPOLOGIST
82, 96 (1965).
L. DUMONT, HOMO HIERARCHICUS: THE CASTE SYSTEM AND ITS IMPLICATIONS, 172 (1980).
Id, at 171.
Robert M. Hayden, A Note on Caste Panchayats and Government Courts in India: Different
Kinds of Stages for Different Kinds of Performances, 22 JOURNAL OF LEGAL PLURALISM 43 (1984).
Cohn, supra note 10, at 96.
Law Commission of India (1958), supra note 8, at 874.
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these panchayats through legislation was Madras through the Village Courts Act
of 1888. This was followed up by most of the other states in the country at that
time.16 Each state enactment contained minor differences in terms of constitution
and jurisdiction, however to a large extent the jurisdiction of these tribunals in
civil cases was restricted to (1) suits for money due on contract; (2) suits for recovery
of movable property; (3) suits for compensation for wrongfully taking movable
property and (4) suits for compensation for damage caused by cattle trespass.
Suits relating to immovable property were taken out of the jurisdiction of Nyaya
Panchayats completely; in many States the pecuniary value of suits triable by
these forums was kept as low as Rs. 25 or Rs. 40.17 These panchayats were given
jurisdiction over a large number of criminal offences under the Indian Penal Code.
Generally, Nyaya Panchayats did not have the power to order periods of
incarceration, and could only impose a fine at worst.18 Members of the Nyaya
Panchayats in most states were appointed through the process of election. These
elections were either direct, or involved variations of indirect election and
nomination.19 Each Nyaya Panchayat was generally set up for a group of villages
(usually 7-10 villages).20 Nyaya Panchayats were generally exempted from strictly
observing the procedures contained in the Codes of Civil and Criminal Procedure,
as well as the Indian Evidence Act. Lawyers were completely barred from appearing
before Nyaya Panchayats in most states.21
Nyaya Panchayats therefore contained many of the hallmarks of the village
panchayat ideal. They were exempted from strict procedural rules, employed
popularly elected adjudicators and were located geographically close to parties, at
the village level. The non-application of procedural rules would allow the use of
customary processes of hearing disputes. The presence of popularly elected leaders
would ensure that they were generally respected by the population, and therefore
16
17
18
19
20
21
The Law Commission of India in its 14th Report provides a useful list of the individual states and
enactments. Law Commission of India (1958), supra note 8, at 878.
These equate to roughly Rs. 1,250 or Rs. 2,000 in 2013 money. Law Commission of India (1958),
supra note 8, at 882.
Law Commission of India (1958), supra note 8, at 884.
See U. Baxi & M. Galanter, Panchayat justice: an Indian experiment in legal access, 3 ACCESS TO
JUSTICE: EMERGING ISSUES AND PERSPECTIVES 343 (1979) for a discussion of the various methods.
Id.
Law Commission of India (1958), supra note 8, at 883.
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
that their decisions were valued and adhered to. If the village panchayat ideal is to
be believed, these institutions captured the essential features of indigenous dispute
resolution in India. Why then, did they fail so miserably?
Baxi and Galanter argued that many of the problems with Nyaya Panchayats
stemmed from the ambiguity around their exact nature and their role in the judicial
and political systems.22 They point out that already by 1970, the workload of
Nyaya Panchayats in some states had fallen considerably.23 In Uttar Pradesh total
filings had dropped from 91,107 in 1961 to 35,865 in 1970. In the same time,
filings in the formal civil and criminal courts had risen consistently; the situation
was similar in Bihar. While national level studies by the Law Commission (1958)
and the Study Team on Nyaya Panchayats24 (1962) saw great promise in these
institutions, results reported by studies in individual states were much less sanguine.
Reports in Maharashtra and Rajasthan recommended the abolition of these
institutions altogether, both for different reasons.25
By the time of Meschievitz and Galanters 1982 study, actual sightings of Nyaya
Panchayats were already infrequent in the state of Uttar Pradesh.26 They described
some of the difficulties and absurdities caused by the structure of the Nyaya
Panchayat system. Aside from problems with funding and overlapping jurisdiction,
some problems were a product solely of the unique Nyaya Panchayat structure.
Chief among these was that Nyaya Panchas (the adjudicators) were required to
stick as far as possible to the letter of the substantive law, when in fact most were
22
23
24
25
26
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not highly literate; the only requirement to be recruited as a Nyaya Pancha being
a minimum age of 30 years and the ability to read and write in Hindi. As a result,
most Nyaya Panchas failed to sufficiently understand the legal provisions they
were to apply. Further, Nyaya Panchas were expected to fulfil an incredibly
complex role; treading a delicate balance between textual law and local custom,
remaining honest, upright and impartial, sensitive to the needs of parties, fair in
reaching suitable compromises, forceful in levying and collecting fines, all without
compensation or the necessary means to do so.27
For these reasons, Meschievitz and Galanter were strongly pessimistic of the
continued existence of Nyaya Panchayats and described them as institutionally
weak and moribund.28 They attributed this state of affairs to the indiscriminate
use by Indian policy makers of the panchayat ideology, which was deployed in
an effort to avoid serious engagement with the nature of disputes and law in rural
India.29 They describe the panchayat ideology in the following terms:
More recently, Galanter and Krishnan have suggested that Nyaya
Panchayats failed because they represented an unappetising
combination of the formality of official law with the political
malleability of village tribunals.30
The Nyaya Panchayat experience holds valuable lessons for the design of rural
justice reform in India. These were an attempt to recreate an idealised traditional
institution, the village panchayat, and at the same time imbue them with an
adherence to the enacted substantive law of the country. As we have seen earlier,
the village panchayat ideal itself was based on a dubious vision of the nature of
law and disputes in rural India. The failure of Nyaya Panchayats shows that at
least in this form, demands for a return to indigenous processes of dispute resolution
are unlikely to be fruitful.
28
29
30
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
32
33
34
This was even though strengthening in rural areas the institutions of Nyaya Panchayats was
one of their terms of reference. LAW COMMISSION OF INDIA, 114TH REPORT: GRAM NYAYALAYA,
1(1986).
It has till today remained an alien system which has no living contact with the masses and is not
meaningful to them. Id., at 7.
Law Commission of India (1986), supra note 31, at 19.
Law Commission of India (1986), supra note 31, at 20.
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Panchayats.35 The Law Commission was also in favour of granting Gram Nyayalayas
wider jurisdiction in criminal matters than had earlier been the case with Nyaya
Panchayats, due to the presence of the proposed judicial member on the panel of
judges in the Gram Nyayalaya.36 Further, the Law Commission proposed a
simplified procedure in civil cases, through the exclusion of the Civil Procedure
Code and the Indian Evidence Act. In criminal cases the Criminal Procedure Code
would still be applicable.37 Lawyers were not to be barred. Notably, Gram
Nyayalayas would be mobile, in the sense that they were to travel to the sites of
individual disputes. This was intended as a solution to the problems of collecting
evidence.38
On the whole, the Law Commission intended to create a forum which combined
some of the important features of both the formal courts, as well as institutions
such as Nyaya Panchayats.
The Gram Nyayalayas Act of 2008
The Gram Nyayalaya Act of 2008 incorporates some of the features suggested by
the Law Commission Report. As an example, Gram Nyayalayas are to remain
mobile and conduct periodic visits to the villages within their jurisdiction. Some
of the Law Commission recommendations are however ignored completely.
Absent is the idea of participatory justice that formed an important part of the
Law Commissions model. In sum and substance, the Act of 2008 contains many
significant departures from the Nyaya Panchayat model, as well as from the Law
Commission Report of 1986. Some of these are as follows:
Lay-adjudication: Nyaya Panchayats as well the Law Commission Report of 1986
laid a lot of stress on the need for lay-adjudicators in rural disputes. This was
because these persons were thought to be more knowledgeable about local custom
and practices. In sharp contrast, the Act of 2008 establishes that each Gram
Nyayalaya will be headed by a single Nyayadhikari, who must possess the
35
36
37
38
For instance, Gram Nyayalayas were to hear disputes pertaining to immovable property. These
were excluded from the jurisdiction of Nyaya Panchayats altogether. Law Commission of India
(1986), supra note 31, at 27-28.
Law Commission of India (1986), supra note 31, at 28-29.
Law Commission of India (1986), supra note 31, at 31-34.
Law Commission of India (1986), supra note 31, at 31.
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
qualifications of a Judicial Magistrate of the First Class.39 This means that at the
very least, a Nyayadhikari must possess a law degree. This appears to be a rejection
of the promise of lay-adjudication, in favour of adjudication by professional judges.
Procedure to be followed: Nyaya Panchayats were generally completely exempted
from applying the procedural law. The Law Commission prescribed simplified
procedures for Gram Nyayalayas in civil cases, and the reduced application of
criminal procedure in criminal cases. By contrast, the Gram Nyayalayas Act of
2008 retains the applicability of the Code of Criminal Procedure 1973, to all
criminal cases before it. This is subject to the caveat that all cases will first be heard
through the summary trial procedure. If the Nyayadhikari deems it necessary,
they may be re-heard through the regular trial procedure.40 In civil cases, the Act
prescribes a procedure that departs in some substantial respects from the Code of
Civil Procedure, 1908. For instance, Section 24(6) of the Act declares that for any
incidental matter arising during a civil trial, the Gram Nyayalaya may adopt such
procedure as it deems just and reasonable in the interest of justice. In both civil
and criminal cases, Gram Nyayalayas are not bound by the provisions of the
Indian Evidence Act. Section 30 of the Act allows the Gram Nyayalaya to receive
as evidence any report, statement, document, information or matter that may, in
its opinion assist it to deal effectually with a dispute, whether or not the same
would be relevant or admissible under the Indian Evidence Act, 1872. In sum,
while the procedure in Gram Nyayalayas departs in some important respects
from the main procedural codes, there are also substantial similarities, especially
in criminal trials. It is also worth noting that in civil cases the Act gives substantial
latitude to the State Government and High Court to decide the form and manner
of pleadings.41
Legal Representation: Most Nyaya Panchayat legislations expressly barred the
presence of lawyers, who were seen as fomenting litigation and encouraging
vexatious claims. In stark contrast, the Gram Nyayalayas Act makes no attempt
to bar the presence of legal representation. Adversarial adjudication is very much
a part of the Gram Nyayalayas mandate; this is clear also from the 1986 Law
39
40
41
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Commission Report. Coupled with the rejection of the idea of lay adjudication,
it appears clear that Gram Nyayalayas embrace a professional model of justice
delivery and dispute resolution.
The Act makes it mandatory for the Gram Nyayalaya to first attempt to resolve
civil disputes through conciliation.42 The procedure for conciliation is determined
by the High Court, and each Gram Nyayalaya is required to maintain a panel of
conciliators for this purpose.43 Though the Act does not specify this, it is reasonable
to assume that disputes that cannot be resolved through conciliation will still be
adjudicated upon.
In the structure established by the Act therefore, there is minimal homage paid to
the many elements of the panchayat ideology. The Gram Nyayalayas Act adopts
a model of adversarial adjudication by professional judges, with parties represented
by legal professionals. Aside from this, Gram Nyayalayas have a wider jurisdiction
in both civil and criminal cases than was enjoyed by most Nyaya Panchayats.
Though civil cases are meant to be conciliated first, the provisions of the Act
retain a bedrock of adversarial proceedings. This is a significant departure from
the village panchayat ideal of consensual, and amicable dispute resolution.
This being the case, the legislative debates on the Gram Nyayalayas Bill of 2008
are instructive of the continuing appeal of the village panchayat ideal. Many
members of the Rajya Sabha, most notably Kalraj Mishra, strongly advocated a
rejection of the Gram Nyayalaya Bill in favour of a return to traditional
processes.44 A popular proposal was the conferring of jurisdiction to hear disputes
on the elected Gram Panchayat.45 Significantly, these efforts were unsuccessful.
Even at the time of its inception then, there was an understanding in the legislature
that Gram Nyayalayas signified a move away from traditional processes, rather
than an attempt to recreate them.
42
43
44
45
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
To answer these questions, this section describes the results of field research
undertaken on three Gram Nyayalayas in the months of May and June 2013.
The three Gram Nyayalayas chosen for this study were in the Indian states of
Rajasthan, Maharashtra and Madhya Pradesh. Specifically, in Rajasthan the Gram
Nyayalaya studied was located in Bassi Taluka, part of Jaipur District. In
Maharashtra the Gram Nyayalaya was in Haveli Taluka, part of Pune District.
The last Gram Nyayalaya studied, in Madhya Pradesh, was in Gwalior Taluka,
part of Gwalior District. The number of Gram Nyayalayas operationalised across
the Country is far short of the intended figure; the three states chosen for this
study were the three states that had operationalised the most Gram Nyayalayas in
the Country.46 On the basis of preliminary research, these appeared to be the
only States to approach the creation of Gram Nyayalayas with any seriousness.47
Madhya Pradesh in particular is the only State in the Country that has made a
sizeable investment in Gram Nyayalayas.
46
47
Madhya Pradesh leads all others by a long way in this respect, with 89 Gram Nyayalayas
operationalized in that state alone as on September 2012. Rajasthan had the second highest
number, with 45. Maharashtra reported the third highest number, with 9. RAJYA SABHA WRITTEN
ANSWERS TO UNSTARRED QUESTIONS, SESSION NUMBER 225, p. 145 (March 19, 2012)
Though other states, such as Kerala, have sanctioned the creation of further Gram Nyayalayas
subsequently, none of these have yet become operational.
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Each Gram Nyayalaya was observed through the course of one day of hearing.48
In addition, interviews were conducted with the presiding Nyayadhikaris as well
as lawyers appearing for the parties. The parties themselves were not spoken to
directly. The following paragraphs describe the results of these observations.
Judges, Lawyers and Procedures: an Emphasis on Professional Justice
Delivery
As discussed earlier, the Gram Nyayalayas Act departs significantly from the
Nyaya Panchayat model in its prescription of professionally qualified judges, and
the presence of legal representation. Section 6 of the Act mandates that a
Nyayadhikari must have the same qualifications as a Judicial Magistrate of the
First Class. Conceivably, this could be interpreted to include persons outside the
formal judicial structure but possessing the necessary qualifications: eg., practising
lawyers, retired judges and so on.
However, all the three Gram Nyayalayas we observed were manned by sitting
members of the judiciary in their respective States. Further, these Gram
Nyayalayas were in fact already existing courts of the Judicial Magistrate First
Class, which had been additionally named as Gram Nyayalayas. So, on most days
of the week or month, these were ordinary court rooms at the District or Taluka
court complex. On certain designated days, they would travel out and make village
visits. This was how their Gram Nyayalaya function was fulfilled. Second, at
least two of the three Gram Nyayalayas shared their docket of cases with the
Magistrates Court. What this means is that the Nyayadhikaris heard the same
cases in the Gram Nyayalaya as in their parallel capacity as Judicial Magistrates
First Class. In all three cases, their dockets were made up predominantly of criminal
rather than civil cases. We discuss this in more detail presently. On these grounds
at least, the title of Gram Nyayalaya appeared to be more a nominal category
than the mark of a truly novel institution.
All three Gram Nyayalayas were attended, to lesser or greater degree, by lawyers.
The Gram Nyayalaya at Bassi was located within the same complex as the other
Taluka courts, and was therefore easily accessible to the lawyers who worked in
the area. The situation was slightly different in Haveli and Gwalior, where the
Gram Nyayalaya was convened at the Gram Panchayat office of the village it was
48
The Gram Nyayalaya at Bassi was observed only for half a day.
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
visiting. This made it somewhat difficult for lawyers to attend these proceedings.
The few lawyers who did attend were thoroughly disparaging of the fact that
they had to travel long distances to do so. In Haveli, out of the 11 cases that were
heard on the day we attended, only one defendant was represented by a lawyer.
In Gwalior, the same lawyer appeared for the defendants in 3 out of the 7 cases
that were heard on the day. In all these cases, an adjournment was sought and
received.
How did the presence of sitting judges and qualified lawyers affect the manner of
proceedings in Gram Nyayalayas? In 10 out of the 11 cases we observed in Haveli,
the defendants were not represented by lawyers. These cases were all decided
summarily, with the accused pleading guilty to the charges against them. Generally,
these were minor public order offences involving a maximum punishment of a
fine or a small period of imprisonment. In these cases, after pleading guilty the
defendants were ordered to pay a fine. They duly deposited this fine with a Court
Official entrusted with this task and left. The 11th case involved a slightly more
serious offence with a maximum punishment of imprisonment for 3 years. Here,
the accused was represented by a lawyer. In this case, the public prosecutor present
there examined his main witness, the police constable who registered the case.
Thereafter, the witness was cross-examined by the defence lawyer. After a short
deliberation and final arguments on both sides, the case was decided and the
defendant was acquitted.
The 10 cases in which the accused pleaded guilty were petty offences under the
Criminal Procedure Code, 1973. These are offences punishable only by a fine, up
to a maximum of Rs. 1000. Petty offences may also be tried summarily, under
Chapter XXI of the Criminal Procedure Code. In these cases it did not appear
that the judge was unduly influencing or coercing the defendants into pleading
guilty; most cases lasted a maximum of 3-4 minutes. It appeared quite clear that in
these cases the defendants had arrived with the intention of pleading guilty, paying
the fines, and having their cases finally closed. Assuming that those who pleaded
guilty actually believed themselves to be so, the process in the Gram Nyayalaya
appeared to adhere reasonably to the applicable procedural law. In the other case,
the trial was conducted in largely the same manner as in any other Magistrates
Court. The lawyer for the defendant was allowed to fully present their claims,
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and eventually they were acquitted for a lack of evidence. The procedure in both
these kinds of cases then followed quite closely the procedure to be followed in
the formal courts.
More interestingly, the judge and lawyers were dressed in full court dress. The
judge was dressed in his gown, as were the lawyers. For all external observers then
this was an ordinary court, albeit in an extraordinary location.
The story was only marginally different in Gwalior. On the day we attended the
hearings, only seven cases were called and heard. In a number of other cases,
parties names were called out but none appeared. We were told that this was an
extraordinarily low figure. In four out of these seven cases, the defendants appeared
themselves. The three remaining cases were all handled by one lawyer, who sought
adjournments in all three. Though we were not able to observe any cases being
heard and decided, it was telling that in the cases that we saw adjournments were
easily sought for and given. If anything, this was more emblematic of one of the
frequently invoked pathologies of the formal court system than anything else.
Further, all the seven cases called that day were criminal cases stemming from
motor accidents.
We were not able to observe any cases being heard in Bassi. Still, some aspects of
the Gram Nyayalaya there were indicative of the likely nature of functioning.
The Gram Nyayalaya itself was constructed as an additional court-room in the
Taluka court complex, replete with a bench for the judge, witness stands, and
galleries for parties and their families. Aside from the sign at the entrance, there
was not much to distinguish this court room from the others in the court complex.
Conversations with the Nyayadhikari further confirmed this impression. He
indicated that while the Gram Nyayalaya used to make village visits earlier, that
practice had more or less stopped. Cases were now heard exclusively in the
designated court-room, and proceedings were much the same as any of the other
courts in the court complex.
None of the three Gram Nyayalayas we visited either maintained a panel of
conciliators, or regularly referred cases to conciliation. Both of these are mandated
by the Act in civil cases; this seemed to be a generally ignored feature of the
structure prescribed by the Act. All cases in these Gram Nyayalayas were heard
and decided by the Nyayadhikari.
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
Caseloads
The absence of conciliation proceedings in Gram Nyayalayas becomes more easily
explicable when looking at the caseloads of these institutions. From the disparate
sources of data available, it is quite clear that these institutions hear overwhelmingly
more criminal cases than civil cases.
For instance, there were a total of 1,603 cases pending before the Gram Nyayalaya
at Bassi on the 21st of May 2013. Of these, 1,376 were criminal cases while 233
were civil cases. The Gram Nyayalaya in Haveli on the other hand heard exclusively
criminal cases. We could not find a single civil case among the cases heard or
disposed by this Gram Nyayalaya for the months of March, April or May 2013.
The absence of civil cases in this Gram Nyayalaya was confirmed in conversations
with the Nyayadhikari as well as the Registrar of the Pune District Court.
The most extensive data set received was from the state of Madhya Pradesh for
the year 2013. Again, this shows the minuscule number of civil cases heard and
disposed in the Gram Nyayalayas in that State as opposed to criminal cases. On
the 1st of January 2013 there were 120 civil cases pending before all eighty eight
Gram Nyayalayas in Madhya Pradesh. By contrast, the similar figure for criminal
cases was 12,447. Similarly, a total of 142 civil cases were filed before all Gram
Nyayalayas in Madhya Pradesh during the year; the corresponding figure for
criminal cases was 6,244. Finally, and rather damningly, all 88 Gram Nyayalayas
in Madhya Pradesh disposed of a paltry 98 civil cases in 2013. That is little more
than one case per Gram Nyayalaya. By contrast, these same institutions disposed
of 6,446 criminal cases during the year.
While it is true that there are generally more civil than criminal cases pending
before Indias lower courts, Gram Nyayalayas still appear to hear a
disproportionately higher number of criminal cases than civil. Returning to our
earlier discussion, it is not surprising that none of the Gram Nyayalayas we visited
had taken steps to facilitate conciliation proceedings by maintaining a panel of
conciliators. The Act prescribes conciliation only in civil cases, while all three
generally heard only criminal cases.
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Analysis
Through the above discussion, it becomes fairly clear that Gram Nyayalayas are a
substantial departure from the village panchayat model embodied by Nyaya
Panchayats. For all intents and purposes, they are decentralised courts, manned
by sitting members of the judiciary, and deciding cases on the bases of the
substantive and procedural laws of the land. This appears to especially true of
criminal cases, which are heard in much the same manner as in the formal court
system.
On the other hand, we could not witness the manner in which these forums
disposed of civil cases. It is possible that these cases are decided in a substantially
different, village panchayat manner. The presence of professional judges and
lawyers in Gram Nyayalayas however militate against this possibility. The presence
of the latter especially is likely to ensure that even civil cases in Gram Nyayalayas
are heard in an adversarial manner, using the somewhat truncated procedure
prescribed in the Act. At any rate, it must be remembered that Gram Nyayalayas
hear a minuscule number of civil cases at the best of times.
CONCLUSION
Over 60 years after independence, the search for acceptable and accessible legal
institutions for those living in rural India is still on-going. At many times, this
search has been punctuated by calls to return to traditional or indigenous forms
and mechanisms for dispute resolution.The village panchayat ideal and its
interpretation through Nyaya Panchayats are the most notable attempts by the
Indian state to operationalise this return.The failure of those institutions was
evidence of both the inaccuracy of the village panchayat idea, as well as its unviability
as a guide for meaningful reform.
Gram Nyayalayas are the next major chapter in this story. Like Nyaya Panchayats,
they are intended to provide persons in rural areas village level access to judicial
institutions. They are however, strikingly different in both their structure and
functioning. At no point do they claim to offer a particularistic, localised form of
dispute resolution. For the most part, they embrace a professionalised model of
justice delivery founded on the idea of adversarial adjudication. In this respect,
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From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
they are much closer to the formal courts in the country than to any indigenous
or traditional institutions, real or idealised. In the broad story of the Indian legal
system, the move from Nyaya Panchayats to Gram Nyayalayas likely signifies
the conclusive end of State attempts to return to traditional models of dispute
resolution, and the move towards a model based on the slow and steady expansion
of the formal court system.
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INTRODUCTION
Terrorism is one of the biggest tests of a democracys ability to abide by its precommitment to fundamental rights. It induces higher levels of insecurity and greater
willingness on the part of citizens to allow legislatures to enact laws that may
allow secret trials, detention without trial, surveillance, and even torture. Antiterror laws are particularly insidious because they bypass constitutional and
*
Shylashri Shankar is Senior Fellow at the Centre for Policy Research, New Delhi.
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3
4
UJJWAL KUMAR SINGH, THE STATE, DEMOCRACY AND ANTI-TERROR LAWS 70 (2007); Upendra
Baxi, The Rule of Law in India, 4 Sur-Revista Internacional de Direitos Humanos 6, (2007).
The USs PATRIOT Act has been implemented in a way detrimental to the civil liberties of
minorities, while Turkeys Law to Fight Terrorism has been used against the Kurdish minority.
See Yevgenia S. Kleiner, Racial Profiling in the Name of National Security: Protecting Minority
Travelers Civil Liberties in the Age of Terrorism, 30 B.C. THIRD WORLD L.J., 103 (2010); Edel
Hughes, Political Violence and Law Reform in Turkey: Securing the Human Rights of the Kurds?,
JOURNAL OF CONFLICT STUDIES, http://journals.hil.unb.ca/index.php/JCS/article/view/4513/
5324.
Global: 140 Countries Pass Counterterrors Law since 9/11, HUMAN RIGHTS WATCH, http://
www.hrw.org/news/2012/06/29/global-140-countries-pass-counterterror-laws-911.
India is one of the few countries that provides for preventive detention as an ordinary legislative
power in times of peace. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 50 (N.M. Tripathy ed., 3d
ed. 1983). Explanations for this can be attributed to the view held by powerful members of the
Constituent Assembly that (i) fundamental rights were seen as gifts of the state which could be
curtailed, (ii) the state was seen as a benevolent entity, and therefore (iii) there was no need for
courts to oversee the content or requirement of preventive detention. See Suhas Chakma, Do
Ends Justify Means?, http://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm,
for a comprehensive list of preventive detention acts.
Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV.,(2006); Jeremy
Waldron, Security and Liberty: the Image of Balance, 11 JOURNAL OF POLITICAL PHILOSOPHY, 191203 (2003); David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in
Times of Crisis, 101 MICH. L. REV., 2565-95, (2003).
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opinion veers towards jettisoning rights and upholding the Roman adage, salus
populi primus lex the safety of the people is the ultimate law. The risk increases
if these minorities belong to the same religious or ethnic group as those challenging
the territorial integrity of a country.6
The judiciary, as the interpreter of anti-terror laws, is at the forefront of balancing
the demands of security with the obligation of democracy to protect fundamental
liberties. Do courts in democracies protect the rights of minorities accused under
anti-terror laws? Those who answer in the affirmative see courts as providing a
constitutional check on executive power and ensuring democratic accountability.7
Their reasoning is that judges are insulated from political preferences and therefore,
from majoritarian prejudices, allowing them to act without fear or favour, and
protect minorities. But empirical evidence supporting such a view is limited.
A contrary view is held by scholars such as Robert Dahl8 who was the first to
rebut the hypothesis that a court stands in some special way as a protector of
minorities against the tyranny of the majority. Rather, judges are more likely to
be jurispathic agents of state coercion9 and the principles of deference align the
interpretive acts of judges with the acts and interests of those who controlled the
means of violence. Other empirical work supports this view that more often than
not, courts defer to the executive during a crisis because of constitutional,
institutional, and patriotic reasons.10 This position has been referred to as national
security maximalism or executive unilateralism. Citing evidence from the USA,
Asia, and Europe, scholars argue that democracies are no better than authoritarian
systems at protecting civil liberties during a crisis11 and that they may even curtail
6
7
8
9
10
11
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liberties. Crisis situations are defined as those where the security of the country is
compromised by violent secessionist movements and/or threats from terrorist
groups.12 For instance, after the September 11 attack, when the United States
Congress passed the PATRIOT Act giving authorities wide latitude to detain and
convict citizens without customary burdens of proof, most of the detenus were
Muslims.13
Cole14 highlights the four main reasons why traditional explanations would argue
that courts are likely to fare poorly on matters of national security during a crisis.
First, judges, notwithstanding their independence, are members of state institutions
and are likely to identify with other institutions such as the Parliament and the
Army when the security of the country is at stake. This, coupled with a rally
around the flag effect makes judges less likely to stand above the crisis. Secondly,
crisis situations inherently push the judges to defer to the Executive since the
court lacks complete information to assess the validity of the threat. As Cole and
others point out,15 the US Supreme Courts decision in Korematsu,16 where it
deferred to military claims of necessity as sufficient reason for interning JapaneseUS citizens, was later shown to be based on an inaccurate record. Thirdly, if the
court rules against the executive on a matter of national security, they may face
and most likely lose a challenge to their credibility and legitimacy. Finally, judges
might worry that their decision might be followed at some subsequent cost to
national security.
The reasons proffered by both approaches for a particular type of judicial
behaviour could cut either way. Sunstein17 rightly points out that institutionally,
judicial independence (structural and operational) does not guarantee impartiality
12
13
14
15
16
17
Lee Epstein, Daniel E. Ho, Gary King, and Jeffrey A. Segal, The Supreme Court During CrisisHow War Affects Only Non-War Cases, 1 N.Y.U. L. REV. 80 (2005).
The Council of American Islamic Relations received 1522 reports of abuse under the Act, but
unreported cases are higher, says the BBC. See Jenny Cuffe, US Muslims alienated from Patriot
Act, BBC NEWS, http://news.bbc.co.uk/2/hi/programmes/file_on_4/5145970.stm.
Cole, supra note 5. He argues that a less pessimistic evaluation of judicial performance on matters
of national security is warranted if we ask what role have judicial decisions played over time in
framing the options available to the Executive. He argues that courts have restricted the options
for the Executive in the next Emergency.
Supra note 5.
Korematsu v. United States, 323 U.S. 214, 246 (1944).
R.Sunstein, Minimalism at War (Preliminary Draft 12/3/04), SOCIAL SCIENCE RESEARCH NETWORK,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=629285.
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18
19
20
21
Id.
Epstein, Ho, King and Segal, supra note 12.
SHYLASHRI SHANKAR, SCALING JUSTICE: INDIAS SUPREME COURT, ANTI-TERROR LAWS AND SOCIAL
RIGHTS, (2009).
A Supreme Court judge in India tends to be middle class, Hindu, from a professional family,
predominantly male, armed with an LLB and some experience as a lawyer for a state government
before joining the judiciary.
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23
116 judges served on different benches to hear 194 anti-terror cases. Of these, 86 judges heard
more than 1 case, and I created a new variable that pertained to this group, and had four subcategories. About 40% of the judges were pro-state 50 to 75% of the time, 19% were pro-state 75
to 99% of the time, 10% were always pro-state, 7% were always anti-state, and 20% were antistate less than 50% of the time. A probit analysis on the characteristics of these judges, like years
served, religion, home state, and party configurations during their appointments to the higher
judiciary, among others was conducted. The only significant finding was that judges who decided
larger number of anti-terror cases were more likely to change their mind as compared to judges
who decided fewer cases. Neither a probit nor a chi-square test produced any other significant
results. Perhaps the statistical results could not pick up variations because these 86 judges may
have had too many characteristics in common.
These cases involved civilians and pertained to grain hoarding, possession of explosives, and
threats to state security, among others.
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usually fought only by soldiers. The courts view in PUCL v. Union of India24
seems to endorse my speculation. The petitioners, who were civil rights activists,
challenged the constitutional validity of POTA. Pointing out that the fight against
terrorism was not a regular criminal justice endeavour, but rather a defence of the
nation and citizens, the court said that terrorism was a new challenge for law
enforcement. It said, To face terrorism we need new approaches, techniques,
weapons, expertise and of course new laws (such as POTA).
Secondly, the analysis revealed that even if the court is deferential to the executive
during a crisis, it can protect the rights of minorities under certain conditions,
such as in the immediate aftermath of political authoritarianism. The Supreme
Court of India, which had failed to safeguard civil liberties during the Emergency
from 1975-77, balanced two imperatives its need for legitimacy in the eyes of
citizens, and its desire to avoid overt conflict with the political elite. Questioning
the validity of detentions under anti-terror laws would have pitted the judiciary
against the other wings of government, and could even have tarred the institution
with an anti-national and anti-citizen imagea charge the apex court was trying
to reverse in the post- emergency period.25 Therefore, on the one hand, judges
followed the proclivity of the Indian Constitution towards giving the state immense
power to discipline and punish recalcitrant individuals. Despite earning the tag
of judicial activism in the arena of socio-economic rights, there was a noticeable
absence of such activism on the rights of detainees under anti-terror laws, and this
was consistent with the hawkish position of successive governments that national
security trumped civil liberties. On the other hand, they made a distinction between
the religious and political affiliations of minorities, and protected those who did
not have separatist political goals. Judgments were significantly less likely to favour
the state against a Muslim litigant without separatist ambitions, but more likely
to support the state when Kashmiri separatists were in the dock. Thus, overall,
while the court supported the states coercive position (confirming Covers analysis
of its jurispathic nature), the judges also found ways to oppose the violence of
other state organs by scrutinizing cases registered against religious minorities. I
assessed the Supreme Courts attitude towards Muslims charged under preventive
24
25
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detention, TADA and POTA during those years when India was involved in a
war. Judgments were 23% less likely to favour the state when a Muslim accused
was involved in a case decided in a war-year, leading one to the conclusion that in
a war- related crisis, vulnerable minorities are not more at risk in the legal arena.
What of a crisis induced by terrorism? I tested judicial behaviour towards Muslim
plaintiffs/defendants after 2001(this year saw the September 11 attack on the World
Trade Centre in New York and the December 13 attack on the Indian Parliament),
but the small size of the dataset did not allow me to reach a definitive conclusion.
Thirdly, the econometric models demonstrated that judicial independence was
less of an explanatory variable in the way judges behave on civil liberties.26 The
crisis of legitimacy and the nature of the national crisis were more influential
explanations for the courts judgments. Once such scrutiny was established, judges
continued the practice because of institutional (collaboration with colleagues) and
legal norms (precedents).
In the concluding discussion in Scaling Justice, I had hypothesised that POTA
cases would see more pro-state rulings, particularly after incidents of terrorism,
but that Muslim minorities would not be unduly targeted. Is my hypothesis
supported by the empirical evidence? How has POTA been used, and what are
the implications for civil liberties in general and for the civil liberties of muslim
minorities in particular? Does the protection for Muslim minorites continue in
POTA cases particularly when there is no clear political (separatist) ambition? I
will address these questions in the following sections.
The Scope of Anti-Terror Laws
India, the worlds most populous parliamentary democracy with the most
powerful court in the world27 following the common law system, has a large
Muslim minority with a complicated history of strife with the Hindu majority.
26
27
I took the Second Judges case (Supreme court Advocates-on-Record Association and Anr. vs.
Union of India, 1993 Supp (2) SCR 659) in 1993 (when the court decreed that the concurrence
of the Chief Justice was required in judicial appointments thus minimizing the de jure dependence
on the political wings) as the cut-off point and examined the probability of a pro-state ruling
before and after 1993. There was very weak corroboration (at the 10% significance level) that
post-1993 verdicts were more likely to be anti-state than pre-1993 rulings.
George Gadbois, Indian Supreme Court Judgesa Portrait, 3 LAW & SOCY REV. 31736 (1968).
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It has experienced secessionist movements in Kashmir, the North East, and Punjab.
Polarization of Hindus and Muslims has increased in recent decades with a
resurgence of Hindu nationalism and its ascendance to power in the national and
regional arenas. The Indian state has designed a vast panoply of anti-terror and
preventive detention laws since independence (see Appendix).
POTA included as crimes activities performed with an intent to threaten national
integrity, and allowed for admissibility of confessions extracted in police custody.
The Appendix demonstrates that the definition of actions included in the scope
of these laws has grown broader, and that the burden of proof has shifted from
the prosecution to the accused, thus impacting negatively on civil liberties of all
citizens. More recently, after repealing POTA (which was enacted by the BJP-led
National Democratic Alliance coalition), the Congress-led United Progressive
Alliance (UPA) government amended the Unlawful Activities Prevention Act
(UAPA) of 1967 in 2004 and again in 2008. UAPA 2008 draconised some elements
(the definition of intent included likely to threaten), reduced the stringency of
other elements (detention without bail was reduced from six months in POTA to
three months in UAPA 2008, and confessions made during police custody were
not to be admissible as evidence), and retained some provisions (e.g. the accused
can be in police custody for 30 days). The features retained by UAPA 2008 (drawn
from POTA) that civil liberties activists have found troubling included: (i) a vague
definition of terrorist act, and abetment (Section 15); (ii) absence of statutory
procedures on including organizations in the terrorist list, with the result that
the onus of establishing innocence, without knowing the reason for their inclusion,
rests with the proscribed organization; (iii) assignment of official immunity to
state officials involved in counter-terrorism, which has the effect of impeding the
prosecution of officials acting in bad faith (Chapter VII, Section 49), and; (iv)
allowing the death penalty for those whose terrorist act shall, if such act has
resulted in the death of any person (Chapter IV, Section 16a). In the next section,
we will assess the impact of the judiciarys interpretations of POTA cases on civil
liberties including the liberties of minority groups.
Comparison of POTA, TADA and Preventive Detention cases
First, a descriptive analysis of the POTA cases would be useful. Of the 103 POTA
cases in the higher judiciary from 2001 to 2011, about 20% were appealed in the
apex court. The High Courts of Gujarat and Tamil Nadu accounted for about
20% (each) of the cases, followed by Maharashtra/Bombay (13%) and Delhi (12%).
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In 92% of the cases, the petitioners were non-state, which means that the judgments
in the lower courts (trial/special courts) have been overwhelmingly pro-state. Over
80% of the cases dealt with bail, custody, challenge of interlocutory orders and
writs, and clarifying the legal position vis--vis POTA. Over 70% of the cases
were framed by the state as a terror case pertaining to actual and imminent attacks
(48%), recovery of arms and funding of terror (23%). Of these, about 37% involved
Islamic terror, 19% were Naxal-related, 8% pertained to the LTTE, and about
10% involved communal riots.
Table 1: Issues in POTA Cases
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28
29
30
31
Please note that while the TADA and preventive detention cases pertain to the Supreme Court
of India, the POTA cases include the judgments of the High Courts and the Supreme Court.
The CJIs opinion in the Habeas Corpus (ADM Jabalpur V. Shivkant Shukla AIR 1976 SC 1207)
case (which challenged an emergency law, the Maintenance of Internal Security Act, 1971) in
1976 that the judiciary should abandon all scrutiny of governmental control of individual activities
once an emergency was proclaimed, was vilified in the public domain particularly since the
Executive had egregiously misused such powers. One of the concurring justices, Chandrachud,
who had agreed with the majority view even apologized to the public much later saying that he
wished he had had the courage to resign during the trial. See Speech to FICCI on 22 April 1978,
Hindustan Times, 23 April, 1978.
While special courts or the High Court functioned as trial courts for anti-terror cases, the
Supreme Court had the final word on appeals and constitutional challenges to the anti-terror
laws. In TADA cases, which were tried by special designated courts, appeals had to be lodged
within 30 days in the Supreme Court.
PUCL v Union of India, (2003) 4 SCC 399.
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prevent terrorism within the bounds of the constitution. Mere possibility of abuse
cannot be a ground for denying the vesting of powers or for declaring a statute
unconstitutionally.
Thirdly, the scope of issues to which anti-terror laws have been applied has
expanded over the decades. In Ram Manohar Lohia v. State of Bihar,32 the Court
explained the difference between three concepts: law and order, public order,
and the security of the state by referring to three concentric circles. The largest
circle represented law and order, the next represented public order, and the smallest
represented security of the state.33 The courts view was that every infraction of
law must necessarily affect order, but an act affecting law and order may not
necessarily also affect the public order. Likewise, an act may affect the public
order, but not necessarily the security of the state. Anti-terror laws were applicable
only to those actions that affected the security of the state.
Let us use the courts yardstick to classify the cases. Using the description in the
judgment, we slotted the cases into seven categories.34 These were village feuds,
criminal cases, security of the state, arms and possession of country-made guns
without a license, grain hoarding, and possession of explosives unrelated to security
threats. The spirit of the law and the apex courts delineation of the concentric
circles argument demands the use of a security law only if the persons actions
threatened the security of the state. About 53% of preventive detention cases
and 65% of POTA cases pertained to security of the state, compared to only 35%
32
33
34
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of TADA cases. The judge made a distinction (particularly in the TADA cases)
between those that dealt with criminal acts in over 60% of such cases he rejected
the use of anti-terror lawsand those that affected the security of the state. In
POTA cases on the other hand, the trend seems to have reversed since the judgments
of the higher judiciary classified about 60% of the cases as relating to a threat to
the security of the state. Other evidence indicates that there is over-use of POTA
laws.35 What is also striking is that about a fifth of the POTA cases did not relate
to terrorism.
It could be pointed out that we live in a more dangerous world and therefore
POTA is being used more frequently. I tested to see if the perception that security
threats have increased actually reflects reality. As a proxy, the sufficiency of the
evidence in cases classified by the court as security threat to the state was assessed.
Of the forty POTA cases framed by the prosecution as pertaining to the state
security, the judiciary found sufficient evidence in only half the cases. This implies
three things. First, that the tendency of the prosecution to frame the case as a
threat to security of the state has risen since over 50% of POTA cases had that
rationale attached to them. In Scaling Justice, I had predicted that if the state
prosecution structures the case as involving terrorists or terrorism, the state is
more likely to be the winner. Though the dataset on POTA is very small the
higher success rate of POTA cases implies a worrying trend for civil liberties,
particularly if the shift occurred because the cases were framed as involving
terrorist threats to the state.36 The prediction has been borne out by the larger
dataset. Secondly, the court has not blindly adopted the prosecutions rationale
since in 10 cases (one-fourth) it found insufficient evidence for such a claim. Thirdly,
the perception of a threat seems to be exaggerated.
What does the comparison tell us about the effect of POTA on the civil liberties
of citizens? First, it highlights the fact that in POTA cases, judges have not reduced
the scope of over-use of security laws by the police and other authorities. The
second implication is that in a security-conscious environment, judges interpret
35
36
The over-use of anti-terror laws is evident in the gap between the numbers arrested and the ones
actually tried and then convicted. The findings of three POTA Review Committees revealed
that of the 1529 POTA accused, no prima facie evidences was found against 1006, that is, POTA
was not applicable to two-thirds of the accused, most of whom were charged in the states of
Gujarat and Jharkhand. See SINGH, supra note 1, for an analysis of POTA and TADA and the
negative implications for democracy.
SHANKAR, supra note 20, at 103.
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Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
the laws in a manner that supports the state in the face of security threats, however
broadly defined. In the TADA and preventive detention cases, there was a 19%
increase in the probability of a pro-state outcome when the case pertained to
security concerns, while in POTA cases this probability has doubled. This backs
the arguments of a conservative37 thrust of the court in its response to challenges
to the territorial integrity of the state, and echoes the behaviour of judges elsewhere
in the world. The third implication is that the civil rights activists are right to
charge the police and other authorities with over use of anti-terror laws to
imprison criminals and others unrelated to terrorism. Such over-use debunks the
emphasis by many (such as the Malimath Committee) on the need for strong antiterror laws. It also provides a strong rebuttal to those who argue that the magnitude
of possible destruction by terrorists necessitates firm and preventive response from
the state through intrusive anti-terror legislation.38 Instead, our findings support
the view that such legislation could increase the propensity of state agencies to use
these laws to arrest those unconnected with crimes against the state. Several studies
and reports by civil rights activists and scholars show the vast slippages between
arrests and convictions, the disproportionate arrests of Muslims, and the insidious
normalization of these laws by their incorporation into ordinary criminal law.39
Let us now turn to the effect of judicial interpretations of POTA cases on the
civil liberties of minorities, particularly Indian Muslims.
II. IMPLICATIONS FOR CIVIL LIBERTIES OF MINORITIES
In preventive detention and TADA cases examined in Scaling Justice, neither
Muslims nor Sikhs were targeted by the judges.40 Indias Supreme Court judges
made a distinction between the religious and political affiliations of the minority
37
38
39
40
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY- VOLUME 1 (4th ed.1991);
M.P. JAIN, CONSTITUTIONAL LAW: VOLUME 1 AND 2 (2003); Baxi, supra note 1.
For arguments that war on terror requires surrendering some civil liberties, see Floyd Abrams,
The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST. L. 1, 5, 1011 (2002);
Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 25
HARV. J.L. & PUB. POLY 441, 4412 (2002).
Anil Kalhan, Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20
COLUM. J. ASIAN L. 93 (2006); T HE TERROR OF POTA AND OTHER SECURITY LEGISLATION A
REPORT ON THE PEOPLES TRIBUNAL ON THE PREVENTION OF TERRORISM ACT AND OTHER SECURITY
LEGISLATION (Preethi Verma ed., 2004); SINGH, supra note 1.
In Gujarat, the percentage of Muslims in the state was 9%, but they made up over a quarter of all
jail inmates. Of the 75 instances of poor circumstantial evidence and due process not followed,
only a quarter had Muslim litigants. This implies that cases with Muslim accused were not more
likely to be dismissed for flimsy evidence.
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42
We ran a similar regression with preventive detention cases, but found no significant results
which means that judges deciding the pre-emergency preventive detention cases were neither
more nor less likely to rule for the state when a Muslim accused (as compared to Hindus or Sikhs)
was involved.
Note: Unless otherwise specified, the statistical significance of all the results discussed in the
paper have p-values that range between .001 to .05.
We examined the judgment and if the judge linked the litigant to Kashmiri, Khalistani, extremism
(Naxalite and other forms), then the litigant was coded as having a political affiliation. Otherwise,
the case was coded as no affiliation. This allows us to judge the judges on the basis of their
statements without including ones own opinions. We had information on political affiliation
drawn from the judgments for 104 (about 50% of our cases). Of these, 23% had affiliation with
Khalistan (Sikh homeland), 24% with Kashmiriyat (Kashmiri homeland).
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43
44
45
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First, the Muslim minorities who are only 13.4% (2001 Census) of the population,
comprise almost 40% of the accused in POTA cases. In about 65% of the cases
with Muslim accused, the prosecution framed it as a terror case, and over 80% of
these cases were classified as Islamic terror. The state emerged the victor in about
66% of these cases where a Muslim was among the accused, while the corresponding
percentage for Hindu accused was 49%. I ran a probit on the characteristics that
increased the marginal probability of a pro-state ruling. Cases in the Gujarat HC
are more likely to be pro-state than cases in other high courts, while the cases in
the Supreme Court are neither more nor less likely to favour the state. However,
the religion of the judge and of the accused did not show significance, implying
that an anti-Muslim bias is not apparent on the part of the judge, thus continuing
the pattern from the earlier TADA and PD cases.
Secondly, the state has increasingly framed POTA cases as involving terrorists or
terrorism, and the court has agreed with such a framing in about 70% of the
POTA cases. This is a departure from the pattern in TADA cases. While judges
tend to rule for the state in cases dealing with security threats, the more problematic
aspect is the question of what constitutes a security threat since the parliament did
not include definitions of terrorism and terrorist act in the content of TADA
and POTA. In TADA cases, the judges used the scope offered by ambiguities in
the definitions to dismiss cases but less so in the case of POTA. This could be
because of the larger scope offered by the definition of an act that is a threat to the
security of the state intent to threaten in POTA, and intent that is likely to
threaten in UAPA 2008 (see Appendix). The large ambit of the definition could
be a reason why a majority of the POTA and post-POTA cases are classified by
the prosecution and by the court as terror-related cases, as compared to 42% of
TADA and preventive detention cases. A more worrying phenomenon in POTA
cases (albeit a few), particularly for the Muslim minorities, is that in some instances
where the court saw a threat to the security of the state, it was liable to ignore lapses
in the procedures and the paucity of evidence and rule in favour of the state. It
sends worrying signals for the due process aspects of the law in anti-terror cases.
Thirdly, we saw in preventive detention and TADA cases that the Court made a
distinction between the religious faith of the litigant and political goals of separatism
and punished only those espousing separatist goals. Judgments were significantly
less likely to favour the state against a Muslim litigant without separatist ambitions,
but more likely to support the state when Kashmiri separatists were in the dock.
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Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
The problem in POTA is in the way the cases are framed (as Islamic terrorism)
and the greater leeway given by the court to the state for some types of framing.
Cases framed as Islamic terrorism were more likely to receive a pro-state verdict
than cases framed as Naxal, LTTE, communal riot and other cases. But the term
Islamic terrorism is vague and does not carry with it a separatist intent as Khalistan
and Kashmiriyat do. As a result, judges seem less able to make a distinction between
the religious and political aspirations of the litigants in POTA cases.
CONCLUSION
The profile of POTA cases affirms the claim of civil rights activists that the tendency
of the police and the prosecution to classify criminal and other non-security of
the state related crimes as terrorism, has shrunk the civil liberties of citizens and
of vulnerable minorities. The judiciarys interpretations, which show an increasing
propensity to allow more cases under such laws while also diluting the protection
of civil liberties, have worsened matters. For instance, the court allows for noncompliance with the requirement for judicial custody at times of urgency, but
the notion of urgency is ambiguous.
In Scaling Justice, a cross tabulation suggested that over 60% of the judgments
favoured the state when there was a single-party majority government, as compared
to only 46% during coalition rule. The econometric results affirmed it; judges
were strongly (27%) likely to be anti-state during a coalition/minority government
as compared to single-party majority rule. If courts, who make a distinction
between a terrorist strike and war, are also more likely to be pro-state after a
terrorist attack, the possibility of more pro-state rulings in anti-terror cases is
much higher in a political scenario where terrorism occurs during a majority
government. The emergence of a majority government led by a party that espouses
a Hindutva ideology in a situation of domestic and international attacks by groups
claiming to be Islamic, creates a situation of majority party government and a
crisis situation. The saving grace is that judges in Indias higher judiciary do not
demonstrate an anti-Muslim bias, thus contradicting the general applicability of a
theory that judges will be biased towards their own ethnic or religious groups
after a terrorist attack. Shayo and Zussman for instance, have found an in-group
bias (by Arab and Jewish judges towards their own groups) that is strongly
associated with the intensity of terrorism in the vicinity of the court in the year
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46
47
Shayo and Zussman, Bias in the Shadow of Terrorism, THE QUARTERLY JOURNAL OF ECONOMICS
(2011), doi: 10.1093/qje/qjr022.
The Commission will comprise the CJI and two senior judges in the Supreme Court, the Union
Law Minister, and two eminent personalities appointed by a selection committee with the CJI,
the Prime Minister and the Leader of the Opposition. The veto power rests with any two
members who disagree with the appointment or transfer of a High Court or Supreme Court judge.
121
Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
Appendix
Issue
Definition of
acts
that
pertain
to this
law
Preventive
Detention
Act, 1950
Armed
Terrorist Prevention Unlawful
Unlawful
Forces
and
of
Activities Activities
Special Disruptive Terrorism Prevention Prevention
Powers
Activities
Act,
(Amend(AmendAct, 1958 (Prevention) 2002
ment) Act, ment) Act,
Act, 1987
2004
2008
With a
view to
prevent
him
from
acting in
any
manner
prejudicial
to (a) the
defence
of India,
relations
of India
with
foreign
powers
or the
security
of India;
or (b)
the
security
of a state
or the
maintenance of
public
order.
Can fire
upon
(after due
warning),
search
premises
and arrest
without a
warrant
for the
maintenance of
public
order, to
prevent
cognizable
offence in
areas that
it declares
disturbed
areas.
Intent to
overawe
the
Government as
by law
established
or to
strike
terror or
alienate
any
section of
the people
or to
adversely
affect the
harmony
amongst
different
sections of
the
people.
122
Intent to Same as
threaten POTA.
integrity,
security
or
sovereignty of
India or
to strike
terror in
the
people.
Intent
that is
likely to
threaten.
Widens
the scope
and
includes
offences
related to
radioactive or
nuclear
substances
and
attempts
overawe
state or
public
functionaries
(similar to
TADA).
Vol. 11(1)
Issue
2015
Socio-Legal Review
Preventive
Detention
Act, 1950
Armed
Terrorist Prevention Unlawful
Unlawful
Forces
and
of
Activities Activities
Special Disruptive Terrorism Prevention Prevention
Powers Activities
Act,
(Amend(AmendAct, 1958 (Prevention) 2002
ment) Act, ment) Act,
Act, 1987
2004
2008
Bail
30 days to
1 year (on
hearing
prosecution)
Any
person
arrested
and taken
into
custody
and given
to officer
in charge
of the
nearest
police
station
with the
least
possible
delay,
together
with a
report of
the
circumstance
occasioning
the arrest.
180 days
extendable
to a year
on public
prosecutors
information.
180 days;
police
custody
upto 30
days;
charge
sheet to
be filed
in 180
days; no
bail for
nonIndians
who have
entered
the
country
illegally.
Burden
of
proof
On
prosecution.
N/A
On the
accused.
Adverse
inference
drawn if
arms,
ammuni-
Court to On the
draw
prosecuadverse
tion.
inference
if arms
recovered
from the
123
Detention
without
bail for
upto 90
days;
police
custody
upto 15
days. No
blanket
denial of
bail.
Detention
upto 90
days;
upto 30
day police
custody;
chargesheet
within
180 days;
blanket
denial of
bail to
nonIndians.
On the
accused.
Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
Issue
Preventive
Detention
Act, 1950
Armed
Terrorist Prevention Unlawful
Unlawful
Forces
and
of
Activities Activities
Special Disruptive Terrorism Prevention Prevention
Powers Activities
Act,
(Amend(AmendAct, 1958 (Prevention) 2002
ment) Act, ment) Act,
Act, 1987
2004
2008
tion found
on person
or property and
fingerprints of
accused on
them or at
site of
crime or if
financial
assistance
granted.
Confes- Not
sions in admispolice
sible
custody
Special
courts
Separate
advisory
board
Not
Admisadmissible sible
Not
Yes
under
this Act
but the
Disturbed
Areas
(Special
Courts)
Act,
1976.
accused
or his
fingerprints
are
found at
the site
of the
incident
Admissible as
evidence
May be
constituted
124
No special Not
provision admissible
No.
No.
Vol. 11(1)
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1
2
125
not be ignored, particularly when it has a direct bearing on our legal system and
consequently on the State and its people. Our access to the past is greatly dependent
on written and oral works,3 preserved either meticulously or inadvertently, and
the only way to ensure our continued learning is by safekeeping our archives. As
legal historians, the colonial era is of particular interest due to the continuing
impact it has on our legal thought process4 and the fillip given by subaltern studies,5
not discounting that these records were tediously preserved by the British.6
LEGAL DEVELOPMENTS- THE BRITISH AND BEYOND
The common law system that forms the backdrop of Indias existing legal system
made its way on to the Indian soil with the advent of the British Empire; to put it
more precisely - with the grant of a charter to the East India Company by King
George I in 1726.7 A plethora of legal experiments started soon thereafter and the
Indian subcontinent became a tropical factory of law8 as the colonizers went
about substantially altering rules, and the lives, of those they had colonized.
Today, moving beyond the trajectory of formal law making, there is growing
scholarly work on colonial legal developments which attempts to account for the
6
7
The archival arenas are greatly expanded by combining vernacular and oral accounts, memories
and myths, material realities and rhetorical representations which were often not taken into
account in earlier historical research. (See further Charu Gupta, Introduction, in GENDERING
COLONIAL INDIA: REFORMS, PRINT, CASTE AND COMMUNALISM 2 (Charu Gupta ed., 2012).
Upendra Baxi, Colonial Nature of the Indian Legal System, in SOCIOLOGY OF LAW (Indra Deva
ed., 2005). Various colonial legislations and conventions are applicable today in original or
modified forms.
The Bottom Up Approach has led to re-looking the histories of the marginalized- women,
dalits, tribals and religious minorities- hitherto unheard and unaccounted for in the dominant
view of history. See for instance, Madhav Gadgil & Ramachandra Guha, Ecological Conflicts and
the Environmental Movement in India, 25(1) DEVELOPMENT AND CHANGE 101, 105 (1994) on
resistance from belowin context of Indian forest law.
In 1771 itself the East India Company appointed a Keeper specially to preserve records. The
British colonial rule thereafter became one of the most documented administrations of the time.
It is with this charter that in India common law principles were first formallyintroduced and
Mayors Courts were established in Madras, Bombay and Calcutta. Though, by this time the
British colonies had a functioning and intermeshed executive and judiciary and cases were going
on appeal to Privy Council.
Nandini Chatterjee, Religious Diagnosis: Skinner v. Orde and a Curious Problem of Legal
Governance in British Empire, 2 (May 22, 2011) (Working Paper Series) (on file with author).
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colonized and their interaction with the law and its processes.9 Some of these
interesting works challenge our limited archival records; for instance, judgments
are not readily accepted as verifiable knowledge on face value.10 There is increasing
literature to suggest that many were in fact modified projections that suited the
British politics of that time and place.11 Rummaging through these and other
records gives us an insight into the judicial discourse in the courts of colonial
India.
We soon discover that such discourse often led to rigid and dogmatic
categorization of otherwise more fluid concepts of caste, class, religion, cultural
and gender identities that were socially visible.12 These decisions then served as
judicial precedents for future cases in the same jurisdiction on the basis of the
stare decisis principle characteristic of the common law system.13 In this process,
several colonial legal misconceptions, for instance criminalization of
9
10
11
12
13
For an example of a subject network that studies the history of the Judicial Committee of the
Privy Council, see Nandini Chatterjee, Subjects of Law: Rightful Selves and the Legal Process in
Imperial Britain and the British Empire http://translatingcultures.org.uk/awards/researchnetworking-awards/subjects-of-law-rightful-selves-and-the-legal-process-in-imperial-britain-andthe-british-empire/ (last accessed May 5, 2015).
There was a notion of fairness which was somewhat prevalent in colonial times perhaps due to
lack of affiliation of English judges with village communities and, therefore, assumption of nonbias on caste and class factors. The agendas with which British executive/judicial officers worked
with, however, have to be seen. Take the obvious instances such as when lawyers who participated
in the freedom struggle were punished and had their names removed from the bar roll. The cases
of detenues appeals during World War II were dealt with by British judges in a secret
manner and records relating to appeals under the Public Safety Act are yet to be explored by
historians. Justice K. Chandru, The High Court of Judicature at Madras at 150, THE HINDU,
August 15, 2011.
Well illustrated in PREM CHOWDHRY, Fluctuating Fortunes of Wives: Creeping Rigidity in InterCaste Marriages in the Colonial Period, in GENDERING COLONIAL INDIA: REFORMS, PRINT, CASTE
AND COMMUNALISM 2 (Charu Gupta ed., 2012).
For example: One such key process for colonial India was the creation, or at least formalization, of
extra-local, horizontally conceived, and homogeneously imagined religious
communitiesHowever, in spite of their impoverished view of reality, colonial categorization
projects did not fail, not only because of their endorsement by overwhelming state power, but
also because they were actively embraced as indisputable representations of truth by people.
Nandini Chatterjee, Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial
Court, 117 AMERICAN HISTORICAL REVIEW 1101, 1104-05 (2012).
For the historical origins of the stare decisis principle in common law and its criticism, see
commentary provided in THE AMERICAN LAW REGISTER, 746-756 (1st. edn., 1886), also available
at http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article= 4147&context=penn_ law_review.
127
15
16
17
18
19
See ALOK GUPTA & SCOTT LONG, THIS ALIEN LEGACY: THE ORIGINS OF SODOMYLAWS IN BRITISH
COLONIALISM (2008) http://www.hrw.org/sites/default/files/reports/lgbt1208_web.pdf, and
Jeremy Seabrook, Its Not Natural: The Developing Worlds Homophobia is a Legacy of Colonial
Rule, THE GUARDIAN, July 3, 2004.
See MRINALINI SINHA, COLONIAL MASCULINITY: THE MANLY ENGLISHMAN AND THE EFFEMINATE
BENGALI IN LATE NINETEENTH CENTURY, 163-165 (1st edn., 1995), Varsha Chitnis & Danaya
Wright, The Legacy of Colonialism: Law and Womens Rights in India, 64 WASHINGTON & LEE
LAW REVIEW 1315 (2007), Kalpana Kannabiran, Sexual Assault and the Law, in CHALLENGING
THE RULE(S) OF LAW 80, 81 (Kalpana Kannabiran and Ranbir Singh eds., 2008).
NAZ Foundation v. Government of NCT of Delhi, 2009 (160) DLT 277, para 4.
Act No. 45 of 1860.
The Eunuchs Act, for example, was implemented in various jurisdictions at the turn of 20th
century to control the eunuchs through police crackdowns. Such laws cause more damage on
the ground, forcing communities to go underground and be denied basic right to life, liberty,
dignity and privacy.
In India, due to poor archival conditions, much reliance is placed on the description of case
scenarios given by deciding judges in written judgments reported in law journals, starting from
the 1st Indian law journal the Madras High Court Reporter (1861), and newspaper reporting
preserved by newspaper archival sections available in libraries and museums. See Justice Kannan,
Of Law Reports, Authors and Legislations, JUSTICE KANNAN, BEING NON-JUDGMENTAL (March 17,
2008), http://mnkkannan.blogspot.in/2008/03/of-law-reports-authors-and-legislations.html- for
a brief history of legal reporting in India.
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contain all depositions, exhibits and other legal evidence. For this purpose, the
archive of the Judicial Committee of the Privy Council in London has full
proceedings up to the final appeals starting from the appeal in the case of Manuel
De Lima (Madras, 1679).20
However, Privy Council appeals account for only a fraction of the litigation cases
fought in the subcontinent during the colonial period. An appeal to Privy Council
was neither easy nor cheap; hence it was not a viable option for most Indians.
Most of the records lie in the then lower courts of Indian subcontinent, accessing
which is a deceptively simple task, given the deplorable condition of our court
depositories and the resultant logistical difficulties explained below.
Let us take the case of the Calcutta and Bombay High Courts which were
designated Supreme Courts in 1774 and 1823 respectively till 186121, and then
functioned as the highest courts till the creation of a Federal Court via the
Government of India Act of 1935. The Calcutta High Court has a Research and
Preservation Centre in its Centenary building since 1977, which can be accurately
described as a dingy room with broken window panes, serving as an open invitation
for pigeon guano over rotting papers piled up in cramped stacks. This privilege is
reserved only for case files and judicial records that were admitted during the
period when the Calcutta High Court was the Supreme Court (1774-1861); for
the time period between 1862- 1950 however, many appellate case records are
simply untraceable.22 The Bombay High Court on the other hand chooses to
dump record proceedings of the colonial era in the backrooms of the Small Causes
Court situated at Lokmanya Tilak Road in South Bombay (now Mumbai). Though
this repositoryclaims to have electronically operated racks systems, some of these
have not been fully repaired since they last went out of order, making any research
impossible.23 Similar is the case with the Madras High Court which Justice K.
Chandru described as:
This High Court started functioning from 1862 and we do not have
a proper index as to the availability of records from that date. Rumours
go around to the effect that even the original charter establishing the
20
21
22
23
For Privy Council Appeals Data, see Mitch Frass, Privy Council Appeals Data: The First Fifty
Appeals from East India Company to the Privy Council 1679-1774, available at http://
angloindianlaw.blogspot.co.uk/p/privy-council-cases-from-india-before.html#data.
The Indian High Courts Act, 1861 merged these Supreme Courts along with Sadar Adalats and
the three High Courts at Bombay, Calcutta and Madras were established.
Authors notes from the field, p.4 (September 18- September 27, 2013).
Authors notes from the field, p.2 (June 5- June 14, 2013).
129
court itself is not traceable. Manually kept records have become motheaten and the papers have become brittle. Further the typed documents
are slowly fading away and worse is the computerized printing. We
have no qualified persons to look after the records. Even while
destroying the records which are of 10 years old, what is preserved is
only the original petition and the judgment copy, the other papers
annexed to the cases are removed and destroyed.24
Thus most lamentably, since our courts have been following an indiscriminate
policy of destroying a large part of the proceedings, there is little chance of finding
complete case records unless someone has kept a private copy. If such is the current
state of the High Courts, supposedly courts of record, one can only imagine the
pitiable position of district level archives.25
Then there are rare private archives maintained by private individuals and
institutions, chancing upon which can be a true blue-moon events for scholars.
There is of course no accreditation system in place for effective service and
sustainability of such private records.26 To conclude, overall decades of neglect,
underfunding and bad preservation techniques have wrought considerable damage
to these records.27Any excitement at having chanced upon a rare document subsides
soon after when the paper crumbles in your hands.
24
25
26
27
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30
Romila Thapar, In Defence of History, Seminar 2003, (from lecture delivered at Thiruvananthapuram
on March 2, 2002) http://www.india-seminar.com/2003/521/521%20romila%20thapar.htm.
As part of establishing six model (high) courts in India (A Law Ministry initiative under the
Twelfth Plan), at least Delhi and Bombay High Courts have started digitization drive for the
present cases, starting last year. It is to be kept in mind that while colonial judgments were
written in ink or pencil, the printed typeset used in modern era have shorter life. High Courts
are courts of record under Article 215 of the Constitution, yet there is no strict compliance to
preservation rules (ironically called rules for destruction of records) which mention preservation
of significant case laws avoiding tears (Private interview with Justice K. Chandru, p.3, on file
with author).
Various Supreme Courts in USA, Australia, UK and Canada provide live feed or audio recording.
See DANIEL STEPNIAK, AUDIO-VISUAL COVERAGE OF THE COURTS: A COMPARATIVE ANALYSIS, (1st
edn., 2012). In India, in Deepak Khosala v. Union of India, 182 (2011) DLT 208, the Delhi High
Court cited lack of legislative policy to deny recording of oral proceedings. Two subsequent PILs
in the Supreme Court for recording proceedings have been rejected despite a similar
recommendation by the Advisory Council of the National Committee for Justice Delivery and
Legal Reforms in February 2014. However, on July 15, 2015 the Calcutta High Court allowed
audio-video recording of a court room proceeding for assistance of the judges.
131
32
See cataloguing of 9,368 cases decided between 1792-1998 by Appeals to the Judicial Committee
of the Privy Council at http://privycouncilpapers.exeter.ac.uk as a pioneering effort in this area.
Also see the AHRC research network project referred to in Nandini Chatterjee, supra note 9
and Centre for Imperial and Global History, University of Exeter, http://
humanities.exeter.ac.uk/history/research/centres/imperialandglobal/research/subjectsoflaw/
At present, Ricoh India Limited has been given the responsibility to digitalize cases from 1977
onwards. There are currently 11 e-court rooms at the Delhi High Court premises. With the
ultimate aim to convert all courtrooms to e-courts, the digitization section also strives to provide
digital copies of new cause lists and pending cases, to the extent possible.
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BOOK REVIEW
CRITICAL INTERNATIONAL LAW: POSTREALISM,
POSTCOLONIALISM AND TRANSNATIONALISM1
(Prabhakar Singh & Benot Mayer eds., 2014)
Ashwita Ambast*
The lack of concerted methodological critique is a significant failing of international
law scholarship. Critical international lawyers (the Crits) aim to question and
destabilize the inaccurate assumptions behind international law, which have slowly
become deeply entrenched as truths.2 The Crits believe in the absence of a central
international legal order as an impartial point to which state actors can refer and
in a mature anarchy in international relations (and) the recognition of states as
independent centres of legal culture and significance3
In Critical International Law, Prabhakar Singh and Benot Mayer bring together
different scholars of this post modern tradition who carefully re-envision
international law as it stands today. The scholars address three areas that have
been systematically neglected in mainstream international law discourse and
writing, and thus remain unexplored; post-realism, post-colonialism, and
transnationalism.
This review will begin with an overview of the articles in the Critical International
Law. Subsequently, this review will raise three points of analysis: internal
differences in opinions in the book, the role of international law scholars, and the
scope of the premise of the book.
1
*
2
133
POST-REALISM
Post-realism explores the relationship between international law and international
politics.4 The contributions recognise that the international legal order is no longer
state-centric; rather, international law is a process of authoritative decision making
that need not necessarily stem from the state, and that must, hence, accounts for
rules, policies as well as individual state context.5 Thus, Rossana Deplano criticises
the welfarist approach,6 which argues that states are the primary actors of
international law and bear the responsibility to enter global, welfare maximizing
agreements with other states on behalf of their population.7
However, despite states taking a backseat, the international order remains governed
by prevailing power relations in interesting, new ways. John Morss argues that
international law has failed to properly address time and power.8 For instance, at
its inception, Israel did not strictly conform to the Montevideo requirements of
statehood but in an interesting interplay of power and time, overwhelming
recognition from other states (supplemented by military, economic and political
support) became self fulfilling.9 Similarly, it is argued that the recognition received
by Kosovo from other nations after its unilateral declaration of independence
gave the Kosovar state otherwise absent legitimacy in the eyes of international
law.10 Further, lopsided power relations even impact secondary sources of
international law. The powers of modern international tribunals extend far beyond
the mere settlement of disputes.11 However, not all states readily internalise
international law, given that the decisions of international courts and tribunals
are self referential, often not pro-public, and tend to discriminate between states
4
5
6
7
8
9
10
11
Prabhakar Singh & Benot Mayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 1, 5.
Rossana Deplano, The Welfarist Approach to International Law, in CRITICAL INTERNATIONAL
LAW, supra note 1, at 74, 87.
This approach is championed by Eric Posner: Eric Posner, International Law: A Welfarist
Approach , 73 U. CHIC. L. REV. 487 (2006).
Rossana Deplano, CRITICAL INTERNATIONAL LAW, supra note 1, at 75-77.
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53-55.
Morss says that historical change is articulated by international law in paradoxical ways.
Id.
Daniel Fierstein, Kosovos Declaration of Independence: An Incident Analysis of Legality, Policy
and Future Implications, 26 B.U. INTL L.J., 417 (2009).
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 98, 100.
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POST-COLONIALISM
In the Postcolonialism segment, it is argued that international law is complicit in
concealing and legitimizing imperialism.16 The creation of equal states is at the
heart of international law; yet, non-European colonized states were not considered
equal at all.17 These states were denied sovereignty by Western powers and on
gaining political independence, remain marginalized. The failure of the New
International Economic Order,18 and the coercive influence of Western dominated
international institutions like the International Monetary Fund are signs of neoeconomic imperialism. Anghie calls for an alternate analytic framework, a dynamic
of difference, directed at studying how international law relates to colonialism,19
12
13
14
15
16
17
18
19
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 113-114, 117. Singh takes the example of international
investment law decisions that are overwhelmingly pro-private and discriminatory.
Singh, supra note 15, at 118.
For more details on the collaboration between Profs. Lasswell and McDougal, see, O. Hathaway,
The Continuing Influence of the New Haven School, FACULTY SCHOLARSHIP SERIES, PAPER 834,
(2007), http://digitalcommons.law.yale.edu/fss_papers/834.
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 65.
Antony Anghie, Towards a Postcolonial International Law, in CRITICAL INTERNATIONAL LAW,
supra note 1, at 123.
Antony Anghie, Towards a Postcolonial International Law, in CRITICAL INTERNATIONAL LAW,
supra note 1, at 123, 129.
By which developing countries sought to assert control over their natural resources.
Antony Anghie, Towards a Postcolonial International Law, in CRITICAL INTERNATIONAL LAW,
supra note 1, at 123, 130.
135
20
21
22
23
24
25
26
27
28
29
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30
31
32
33
34
35
36
37
Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 167, 183. Not only is Baxi equivocal about the politics of the historians use of past human
suffering for the future of human rights, he is also unable to justify whether the grassroots voice
is relevant to human rights decisionmaking. Moreover, left unaddressed are the methodological
dangers of a history from below which can include issues of agency, representation and the
creeping in of unwarranted assumptions and omissions. Mark Toufayan, Suffering the Paradox
of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 184.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note
1, at 198, 199.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 198, 206.
Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004); Benot Mayer, The Magic Circle of Rights Holders,
in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 203.
Bankovic v. Belgium 2001-XII Eur. Ct. H.R. 890; Benot Mayer, The Magic Circle of Rights
Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 210.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note
1, at 198, 202, 207: The power and authority test includes cases where a state has de facto and de
jure control over an event.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 198, 215.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 198, 216.
137
TRANSNATIONAL LAW
Judge Philip Jessup characterised transnational law being as all law which regulates
actions or events that transcend national frontiers[including] [b]oth public and
private international law[plus] other rules which do not wholly fit into standard
categories.38
The growth of a self-sufficient system of adjudication of international investment
law is a product of transnationalism. Uruena explains that although arbitral awards
do not bind later tribunals, precedent is widely used in international investment
law.39 To explain the legitimacy of this system, Uruena likens it to a model of
global governance where collective expertise is introduced to remedy the failure
of municipal laws to protect the interests of investors.40 Prior investment awards
are the only reliable source of remedying this failing.41 Thus, the legitimacy of the
system derives not from state sovereignty, but from principles of global governance.
Similarly, while conventionally, human rights obligations derive from state consent,
a transnational framework also allows for the creation of new entitlements by
placing reliance on novel sources. The human right to water does not constitute a
positive international law, as custom is silent and conventions only call for
progressive realization.42 Owen McIntyre states that the rights and obligations of
actors such as individuals, corporations, vulnerable communities, investors, and
state agencies can be garnered from transnational regulations using the Global
Administrative Law framework, akin to administrative law questions.43 Closer
study reveals that the principles relating to universal access to water as articulated
38
39
40
41
42
43
Harold Koh, Why Transnational Law Matters, 24 PENN STATE INTL L. REV. 745 (2006). To
borrow Prof. Harold Kohs definition: [t]ransnational law represents a hybrid of domestic and
international law that has assumed increasing significance in our lives.
Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276,
280.
Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276,
293-301.
Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276,
301.
Owen McIntyre, The Human Right to Water as a Creature of Global Administrative Law, in
CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 259.
Owen McIntyre, The Human Right to Water as a Creature of Global Administrative, in
CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 250.
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139
51
52
53
54
Frdric Megret, The Rise and Fall of International Man, in CRITICAL INTERNATIONAL LAW, supra
note 1, at 223, 232.
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 98, 112.
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 98, 116.
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 98, 118.
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55
56
57
58
59
60
141
A prime criticism levied against the Crits has been that their critique is chiefly
deconstructive.63 Critical International Law aims to reflect the many ways in
which critical scholars think about international law.64 Is the premise of this
book too limited and should the book address the implementation of the paradigms
proposed by the Crits as well? While Anghie makes a strong point regarding the
manner in which imperialism has shaped and continues to shape international
law,65 he is silent on how this realisation can be utilized to impact current
international lawmaking. Can raising caution regarding the colonial overtones of
international law alter and inform international negotiations, decision-making or
the drafting of treaties? Can revealing the imperial proclivities of jurists66 adversely
affect the authority of their word on international law? What is the consequence
of Western powers acknowledging the historically lopsided nature of international
law and what amends can they make? On similar lines, while Barretos call for a
recontexualization of human rights is pressing and convincing, it is not
supplemented by the parameters of the recontextualization. Accounting for the
vast experience of colonialism is no small task, and is fraught with complex
methodological concerns. Further thought on who is responsible for
recontexualizing the history of international law, and how, would be welcome.
The Afterword also notes that the Crits have been accused of remain[ing] at
arms length from the more practical concerns of their discipline.67 While Morss
has a convincing critique of the paradoxical ways in which power is understood
61
62
63
64
65
66
67
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in international law, the solution proposed is to take apart statehood and selfdetermination and create a new account that will make legal sense of legitimacy.68
The effectuation of this solution is obscure. Can the genesis of states that were
contested at their inception be questioned today on theoretical grounds? If so,
what are the consequences of a historical case of self-determination being illegitimate
under the new paradigm of analysis?
As it stands, united by the loose common thread of thinking critically, and
approaching international law from three powerful vantage points, the novelty
and richness of perspectives presented in the compilation make Critical
International Law a compelling read.
68
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 72.
143
144