Sep 17, 2020

Ideas of India: Not Always in the Public Interest

Shruti Rajagopalan talks with Anuj Bhuwania about public interest litigation and the Indian judicial system
Shruti Rajagopalan Senior Research Fellow, Indian Political Economy and Emergent Ventures India
Ideas of India

Host Shruti Rajagopalan examines the academic ideas that can propel India forward. You can subscribe to the podcast on Apple, Spotify, Google, and most other podcast apps.

Ideas of India is a new podcast in which Mercatus Senior Research Fellow Shruti Rajagopalan examines the academic ideas that can propel India forward. You can subscribe to the podcast on AppleSpotifyGoogleOvercastStitcher, or the podcast app of your choice.

In this episode, Shruti spoke with Anuj Bhuwania about his 2017 book, Courting the People: Public Interest Litigation in Post-Emergency India. Bhuwania is a legal anthropologist and a professor at Jindal Global Law School in New Delhi. His book discusses the flaws of public interest litigation, which gives courts enormous procedural flexibility and essentially allows them to legislate from the bench.

This transcript has been slightly edited for clarity.

Read the full transcript:

RAJAGOPALAN: Today my guest is Anuj Bhuwania. He is a professor at the Jindal Global Law School. And his recent book, Courting the People: Public Interest Litigation in Post-Emergency India, is an excellent account of the development and failure of the public interest litigation movement.

In this book Anuj details the big PIL [public interest litigation] cases in the last few decades concerning pollution of the Taj Mahal, pollution of river Ganges, as well as cases dealing with vehicular pollution, deindustrialization, and slum demolitions in Delhi. His analysis brings out two implications of the PIL movement on India—one on Indian citizens, especially the poor, because of arbitrary and draconian orders of the court; and the toll the PIL movement has taken on the Indian judiciary and its reputation.

I had a chance to speak with Anuj about the relaxation of locus standi requirements and procedural constraints on the judiciary in India since the 1980s; about the current state of Supreme Court, ruled more by whim than by law; the work of a legal anthropologist; his intellectual influences; and much more. 

This conversation was recorded before the Prashant Bhushan contempt of court case. But Anuj’s ideas and research also help explain these recent trends in the Indian judiciary.

For a full transcript of this conversation, including helpful links of all the references mentioned, click the link in the show notes or visit mercatus.org/bridge.

SHRUTI RAJAGOPALAN: Hi, Anuj. Welcome to the show.

ANUJ BHUWANIA: Thank you for inviting me. It’s a pleasure to be here.

What Is Public Interest Litigation?

RAJAGOPALAN: The book is a great mix of constitutional jurisprudence, especially the PIL jurisprudence that’s developed post-Emergency in India. It’s got a great mix of empirical work, because you track four cases, big PIL [public interest litigation] cases of our times, which is the Taj Pollution Case, the Ganges Pollution Case, the Delhi Vehicular Pollution Case, and then a case that has no name or many names, the deindustrialization of Delhi.

You have sort of tracked these cases. They were not the usual cases where there is a plaintiff and a defendant, and they have arguments before the court, and then there is an opinion. These cases were really series of orders, most of them continuing mandamus orders issued by the court, where the court was sort of governing from the bench. Can you tell me a little bit about these cases and what piqued your interest in them, and then how you tracked them?

BHUWANIA: What legal academics really do is analyze judgments besides, just to put it very crudely . . . of course, they do a lot of—a bunch of stuff, but that’s what our bread and butter really is. Ordinarily, when you study something like PIL, you’ll be analyzing judgments, so that would be our raw material with which we’d work. What I quickly realized when doing my fieldwork is that that’s actually not a very useful way to study this jurisdiction, because this is a jurisdiction which increasingly does not result in the traditional petition, litigation, judgment format. It continues for years, decades in many of these instances.

The petition, as I realized, has very little to do with what actually happened in the case very often because—we’ll talk about that. The judgment, of course, sometimes never happened. There’s no such thing as a final judgment in many, because some of these cases never end. Some of the cases I talked about are still going on, it’s been more than three decades. Some of them started in 1985, it’s 35 years now. The most prolonged case being the Forest Case, it started ‘95, it’s heard every week for almost 25 years now. These are not traditional[ly] what we studied in law school as judgment, so they would not really help us understand, in my view, adequately what this object or PIL is.

RAJAGOPALAN: If I may, can you tell us the journey of one of these cases and how you tracked it, so that we get to know more about how a legal anthropologist really works in terms of collecting field research, and we would also learn a little bit more about the cases?

BHUWANIA: I have to get a little autobiographical here. I went to law school in the late ‘90s where, of course, I was exposed to Public Interest Litigation as probably India’s greatest gift to global jurisprudence, as something to be particularly celebrated, a unique jurisdiction that arose in India. And I in fact interned with Prashant Bhushan, who is probably India’s most well-known PIL lawyer. And I, like most law students, had a very high opinion of what PIL really does.

Over the years, while I was in UK and US, I would hear about strange things happening through PIL, a lot of slum demolitions, cycle-rickshaws being barred in Old Delhi, which is a very strange thing to do. I would hear about strange order, but it would still feel like, “Well, the court has become more neoliberal,“ or some such dreary explanation that I had in my mind.

When I came for fieldwork, I actually got exposed to it very differently. I had a friend who used to live in a slum settlement near Delhi University, Timarpur area. That settlement suddenly got a demolishing notice citing a particular writ petition in which—there was supposedly an order (page 93) in which the particular settlement was to be demolished, except nobody in the settlement had ever even heard about the case. She asked me to help, so I actually started in that way.

I tried to find out more about the case, and that turned out to be the case which is called Kalyan Sanstha, which is the case I talk much more about in chapter three of my book on PIL as a slum demolition machine. I was trying to understand, How is that an order can be given for demolishing the slum where these people are not even parties to the case?

From there onward, I started trying to understand what this case was about, its history. I tried to file, along with a bunch of other friends, right-to-information requests to get more information about this particular process, this particular case. I spent a lot of time in municipal offices to understand what they are up to, because it has been done through Municipal Corporation of Delhi, the assistant engineer of that particular area.

Then I started looking at the case. I started attending hearings; they used to happen at the time every Wednesday afternoon in Delhi High Court, where this case was being heard. Now, this case, once I started following it, I realized this is nothing like what I’ve studied in law school. This is not a case where there is a petitioner, there is a respondent, and—this is something else. The hearings for this case used to happen at the time in the Chief Justice’s Court in Delhi High Court, which is a pretty large room. Probably around 150 to 200 people could be accommodated there, but that would be so full for just hearing this case that there would not be space to enter, so there was something strange going on.

This case actually was suddenly resurrected in 2003 through PIL writ petition being filed in the name of Kalyan Sanstha, which nobody has heard of since before or after, with regard to illegal constructions in the city of Delhi. It was an open-ended case which sought to revive another PIL from the ‘80s, about 15 years prior to that, from an area called Patel Nagar in West Delhi, where there were apparently illegal construction in a very specific part of Patel Nagar. In fact, two particular buildings are mentioned there. From that one specific judgment on a very specific area of Delhi, this case came up 15 years later about illegal construction in Delhi in general.

Now, at that point—this is a complicated story. At that point, there were quite a few cases already pending in Delhi High Court which related to illegal constructions in various parts of Delhi. What the then acting Chief Justice [Justice Vijender Jain] at the time did, he combined all of those cases, and he said all of them are to be heard through this case. Through this case, then, what he did was that he said that all cases related to illegal construction will be heard through this case, and he divided all of Delhi into 12 municipal zones, appointed a Court Commissioner for each municipal zone, appointed what he called the Monitoring Committee, which would monitor illegal constructions throughout the city.

What would happen was that advertisements would be issued in newspapers, et cetera, where it would be notified that anybody can—anybody noticing anything which is occupation of public land or misuse of public property, meaning that violation of zoning laws, et cetera, could just call the Court Commissioner, who the court said would be paid a certain amount, and that Court Commissioner would inform the Monitoring Committee. What would happen is that the Monitoring Committee would then ask the municipal authority just to go on and demolish that particular settlement.

This was what I call the perfection of the slum demolition machine that the court had become at that point. In that decade, in the first decade of the 21st century, about a million people were evicted in Delhi alone through such cases, and this particular case being the largest of them all.

RAJAGOPALAN: What is incredible about what you’re telling me is, this is a case where the people living in the slums never took any action; they were not party to the suit. Usually, the MCD, Municipal Corporation of Delhi, or NDMC, which is the other union government municipal authority, are not the ones initiating the suit against any kind of illegal settlement. It is the court which has decided to govern and create policy from the bench.

It’s taken on a legislative duty on guidelines about what is legal or illegal construction, and then also executive authority, in the sense that it has appointed a sort of extra-legal commissioner, so to say, who is not part of MCD in any way, and is its own authority. And any person who has nothing to do with the original illegality, is not a neighbor, is not affected by the illegal construction, can just call in, and the suit will continue endlessly and will be heard every Wednesday in the Delhi High Court for about three decades. Is that a good summary of what’s happening?

BHUWANIA: This case didn’t last, luckily, that long. This case, actually, the particular avataar that I’ve described actually went on from 2004 to 2009, but enough damage was done. [crosstalk]

RAJAGOPALAN: Only five years?

BHUWANIA: Only five, but that was—by the standard of PIL, that—

RAJAGOPALAN: It’s short.

Environmental Purposes of PIL

BHUWANIA: It’s short, actually, but they did quite a bit of damage in that period. What I realized was that while, of course, I could talk about the politics of slums in India, and that could be one way of looking at these kinds of cases, what I realized was this was actually . . . Of course, that aspect is important, the politics of urban development and urban poverty and housing, et cetera. But what I realized is there’s something specific about the court itself. Of course, the court had a particular bias, and the court had a particular predilection, but it was about the fact that the court could be maneuvered in such a way, the court could actually maneuver itself with such powers, itself was unique.

Therefore, then, while initially my work was about following a whole bunch of cases around slum demolitions, eventually I realized that it was about PIL per se. It was not about PIL on—a lot of PIL-related studies have been on gender-related PILs or labor-related PILs—

RAJAGOPALAN: Or environment-related PILs. It’s great you mentioned this, because I got a similar sense from the book. You track these four stories; all four of them have some environmental content. The slum demolition is a particularly egregious case of sort of coming down hard on the poor who have no choice but to live in illegal settlements, but mostly they are contained within a certain purview, which is the environmental regulation in Delhi. But what emerges from your analysis is startling, because it’s not about the subject matter; it is not about the specific content of the law or its illegality. It’s more generally about how the court thinks of procedure and how the court specifically thinks about procedural constraints on itself.

Any procedural constraints that tie the court’s hands through the PIL system, over a period of a few decades, the court has managed to completely come out of any binding constraints or any procedure it needs to follow. It’s a bit of a dictatorship in the sense. It does precisely what it wants, and individual judges become petty local dictators in that particular area of law. I don’t even want to call it an area of law; it’s really that particular area of governance, because they’re really governing. Do you think that’s a fair assessment of what has come out of this work, the lack of proceduralism? Is that at the root of this?

BHUWANIA: Absolutely, that’s definitely at the root of it. In fact, when we study PIL in general, I mean when I studied in law school, the defining aspect of it would be the relaxation of standing, would be that the locus standi question has been relaxed, but that is actually just the beginning of what PIL entails. It’s really—there’s a particular quote that the Supreme Court and High Court have repeatedly used. They say that “procedure is but a handmaid of justice and not the mistress.” This is a strange line which they love quoting, but that really is what the court thinks about procedure and has thought about it in the last four decades. This particular line became commonly used, especially from the mid-’70s.

Now, like I said, I was a criminal lawyer for a brief while, but that formed a new common sense for me about how to think about procedure. Any criminal lawyer will tell you that procedure is everything. For me, that was astonishing that the court could do that. This was really not adjudication as we think of it, what common law adjudication is about. The [relaxed] standards for standing became about everything. For instance, evidentiary standards could be relaxed—sometimes for good reasons, of course—but once that practice became common, it led to devastating results, and the cases could continue forever. All the aspects—the beginning, middle, and end of a litigation.

There was this line from Jean-Luc Godard that he thinks that films should have beginning, middle, and end, but not in that order. With the Supreme Court, it’s something along—that idea of what litigation is about is completely changed in the name of PIL.

What has happened is that procedure, from the mid-’70s, late ’70s especially, came to be seen by the court itself as the obstacle to justice rather than the means of justice. Now, I think it’s an idea which infects every part of the legal system, every aspect. Even criminal justice, which is where one would think it wouldn’t be happening, but recently, the court gave judgments on a case related to rights of the accused where they happily used the same “Procedure is but a handmaid of justice.”

Of course, in civil procedure cases, and in general, what has happened is, as you said, fidelity to law itself came to be seen as a strange kind of encumbrance on the court. The court no longer thought law itself as limiting its powers, really, and especially the appellate courts in India.

Who Are the Parties in a PIL Case?

RAJAGOPALAN: You’ve pointed out that the standing or the relaxation of local standard requirements, that was sort of the beginning of the PIL story, though it has expanded beyond it. If I understand correctly, originally, standing was relaxed in cases like Bandhua Mukti Morcha, where the idea was that—normally, standing is an excellent common law rule, because only people who are stakeholders, directly affected, have skin in the game, should be parties to a suit. But in a country like India which has the kind of poverty, inequality, and poor access to justice, a really important way of addressing that is to relax standing.

The sort of poster-boy case is Bandhua Mukti Morcha, which is a case on bonded laborers. By the very nature of the suit, which is, this is modern-time slavery, or at the very least indentured servitude, they are not in a position to challenge the system and access usual means of justice, and therefore, the standing requirements must be relaxed.

Now, of course, what has happened is it’s infected everything, as you mentioned, and very often, what you see in the court is, people who have nothing to do with the suit file a case. Usually, the parties affected, like those living in slums, don’t even know that there is a case going on which affects their very life and where they live, and so on, so forth. Additionally, you can have parties getting attached to the suit at various points in the life of a case, or a series of orders, so there’s also this expansion, right? As you go along, and as the court gives orders, more and more people may step out of the woodwork and start getting attached to the case.

This has some very serious implications for how we do jurisprudence as a country, because, as you said, it has no beginning, no middle, no end. One of the, I think, bad outcomes of standing and having anyone come to court—I think the worst example of this is the Koushal case which overturned Naz Foundation. As far as I know, Koushal, who was the astrologer who decided to appeal the Naz Foundation case . . . it was a case where the Delhi High Court had held Section 377 unconstitutional, so Naz Foundation won the case, and the government decided not to appeal. In an ordinary world, matters would have ended there.

Then [Suresh Kumar] Koushal, who was not party to the initial suit, came up and challenged it in the Supreme Court, and the Supreme Court heard this case that I think it had no business entertaining. Then it overturned the Delhi High Court judgment, and it sort of delayed what happened to LGBTQ rights and their dignity by at least 5 to 10 years as a consequence of this kind of weakening of standing. Do you think that’s a fair assessment, that weakening local standard requirements and procedural requirements has had a very big impact on how we deliver substantive justice in terms of right to life and right to dignit, and right to equal protection of the law?

BHUWANIA: The Koushal case is a good example, of course, as you rightly said, that this person who had nothing to do with the High Court case suddenly comes up and files an appeal when he is not even a party. I’ll have to give a slightly longer answer to that. Now, relaxation of standing per se is not a bad idea. Article 32, under which the Indian Constitution allows people to approach the Supreme Court directly, could be interpreted in a way that some kind of relaxation of standing would be possible. But as Clark Cunningham wrote about it almost three decades back as an American legal academic studying PIL in India, there are at least two ways of thinking about it: what he calls representative standing and citizen standing.

Representative standing would be some kind of class action. There would be some particular organization, or some kind of a group coming together, who would directly have some link with the people directly affected. It wouldn’t be some random person who has nothing to do with the persons concerned, with people who are affected by the litigation. Citizen standing, on the other hand, is you approaching the court as a citizen with regard to any issue—“I feel like India has a problem with regard to pollution,” or anything—and just going to court without any direct relation, except as a citizen.

Now, what has happened is that, while relaxation of locus standi could have been based on representative standing—and initially, some cases they were—what has happened is that the court has thrown the baby out with the bathwater and removed any such constraints on standing. As a result, like you said, anybody can go to court with regard to anything, and the court doesn’t see that as a problem really, except when it wants to, which sometimes it does. That’s another aspect of that.

Bandhua Mukti Morcha is an interesting case. Of course, there, it’s literally Bandhua Mukti Morcha, meaning campaign for bonded laborers. Obviously, that organization, nobody doubts it’s bona fide with regard to representing the interests of this particularly poor section of the Indian populace. But what has happened in that case is—another aspect of it was a problem which has led to enduring problems for the process. In fact, this is a good example of that old adage of hard cases making bad law.

This case, interestingly, was mentioned to me as precedent when I interviewed one of the court commissioners in the Kalyan Sanstha case. When I asked him, “How could you order demolitions without any process, and where is the evidence that you marshal to make a case for demolitions? It’s a pretty drastic action you’re taking.” He said, “Well, in Bandhua Mukti Morcha, the court had created an evidence-gathering entity, which of its own, it refused to go by evidentiary standards.” So what happened in that case was that the court appointed a social-legal commission, what it called, and who alleged—who found that there were widespread cases of this illegal activity of bonded labor.

The state government of the time said that—well, they denied this, and they said that there had to be standards by which—that this particular report, which they have submitted, the social-legal commission has to be cross-examined. There has to be some way of interrogating that. The court said, “Well, procedure is but a handmaid of justice,” so what it did was that it said that, “We don’t have to . . .” As Justice [PN] Bhagwati, who was the most famous PIL judge who would claim that he created PIL and was the principal person behind all of this entire PIL process, or the lack of it—he would say that, “Well, PIL means that we don’t have to go by those standards.”

What has happened is that this is another example of ways in which allegation is treated as fact. In many of the slum demolition cases, parties would go to court—middle-class organizations would go to court with pictures of slums, defecation in public, as well as people having televisions in the slums, and they would say, “Look at these people; they are actually affluent, and they’re living—and they’re causing such nuisance,” and the court would just accept it as gospel without interrogating.

What we’re seeing is really that there were ways in which the court could have relaxed standing. Under civil procedure, there is a process of appointing court commissioners in such situations. The court could have extrapolated from that. The court could have tried to work with some rules, even if liberalized ones, but the court instead chose to work with no rules. That is the problem, that the court decided to create something with no base.

RAJAGOPALAN: Yes, so it’s not that the procedure is faulty, it’s that there is no procedure. There’s no consistent application of a single kind of procedure, and it’s not like they created a rule book where PILs are treated differently from regular cases. There is no rule book.

BHUWANIA: Yes, so whenever they’ve created—in fact, in the ’80s, there was a kind of attempt by some Supreme Court judges to resist this tendency, and they actually suggested that the rules should be framed. There was litigation also around, but they never led to fruition. The court just has refused to limit itself in any way with regard to rules.

RAJAGOPALAN: There are a few different ways of thinking about this pattern. One is that the court has moved from an adversarial system to an inquisitorial system, and it has done this without any legislative or constitutional backing. The worst version of that is court taking suo moto cognizance of a particular issue. But even cases where there is a petitioner and a respondent, they convert the adversarial question into an inquisitorial question, because now the court assumes that it represents the interests of all parties, in all matters, in all of India. Do you think that is a structural change that the PIL has caused?

BHUWANIA: Yes. In PIL, what happens is that a writ petition—and ordinarily, as we know, the PIL is a writ petition, and ordinarily, there would be a person approaching the court with a petition alleging the facts. What has happened is that the court has interpreted the PIL petition as just a crutch to bring to its notice certain allegations, and then . . . In fact, in the first chapter of the book, I talk about the curious case of the disappearing public interest petitioner, because there are so many instances in which the court would just treat the petitioner as just an informant.

Police investigations start with an FIR, so if I see some violent activity happening, for instance, illegal activity happening, criminal activity happening, I would go to the police and bring it to their attention. I’m not a party, per se; I’m just an informant. That’s what they’ve reduced the PIL petitioner to. What happens then is that even when there’s a party which is actually a lot more than an informant—there are many instances where they are actually just informants, but there are quite a few instances where a party is directly affected or a party is particularly well versed—the court still treats them like that. And often, then, the court just takes the case into whatever direction they deem fit.

This is a well-known—a recent one which happened last year, much after the book came out, was a case filed by Harsh Mander last year with regard to the detention centers in Assam. This is a very controversial thing happening in India, where people who didn’t find themselves in the national register for citizens in Assam, or were called doubtful voters, were deemed to be foreigners.

RAJAGOPALAN: Illegal immigrants or foreigners.

BHUWANIA: Illegal immigrants, exactly, and kept in detention centers. With regard to the condition of detention centers, Harsh Mander, last year in 2018/19, filed a PIL in the Supreme Court. The court instead decided that actually the problem was that there were not enough illegal immigrants being deported to Bangladesh, rather than the problem of the conditions in detention centers. In fact, their concern was exactly the opposite of the petitioner. This has happened, by the way, in many, many instances since then.

RAJAGOPALAN: So it’s just an excuse to basically take cognizance of a larger matter and then govern from the bench to create policy on whatever broad area that they wish.

BHUWANIA: Right, and in fact, in ways which are completely contrary to the petitioner’s intentions. The court in a sense expropriates the petition and takes it in whatever way it deems fit, and it’s been doing it for four decades now.

Why Is PIL Popular in India Today?

RAJAGOPALAN: There are some reasons why the PIL became as popular as it did. I think one of the most important reasons is the weak state capacity of the executive. I also, like you, followed the PIL trends in the ’90s. The cases that you’re talking about, the Delhi Vehicular Pollution Case and so on, I experienced it as a young student in Delhi, when suddenly the bus fleet just disappeared, and you couldn’t get an auto-rickshaw for weeks on end, and there were all these shortages. I lived and experienced that firsthand. One reason why people were willing to tolerate it is because they felt that the executive was just simply not paying attention.

Executive inaction in any matter was used as the reason to tolerate judicial activism. In some sense, it’s not clear that the average citizen understood the damage being done by relaxing all the procedural constraints, but they were willing to live with it because they said, “At least someone is doing the right thing in terms of protecting the Delhi Ridge Forest, or reducing pollution, which causes high levels of morbidity and mortality in Delhi,” and so on. We were willing to live with it. Now, it seems like that legitimacy has been lost that the Supreme Court had won so hard. The political legitimacy that can only come from the citizen has been lost because it has gone in directions which are very arbitrary and just seem to be very self-serving.

BHUWANIA: Right. I’m not sure the legitimacy has been lost, but to return to what we were saying earlier, it’s definitely true that PIL has captured the imagination of the people in a way that almost no judicial proceedings in India. Indian judiciary, in general, there’s a particularly low opinion that people have of it. The irony is this kind of schizophrenic view that people have of the courts: that the lower courts are pure pathology, and the appellate courts, especially PIL, is like pure panacea; they’re the solutions to all of the country’s problems. The initial writings around it, that anybody is going to send a postcard directly to court, definitely has captured the imagination of the people.

In fact, it’s amazing how many Bollywood movies feature PIL, increasingly so. It’s almost like the angry young man in the ’70s, the late ’70s, like the vigilante cop or the vigilante hero. That idea of, while nothing is being done, something is being done. Somebody is there to take these—nobody has any guts except for the court to do these big actions. But that is the logic of demonetization as well, as we know. Of course, the vehicular pollution case is a very good example. This was a case which spectacularly changed the transport structure in Delhi in the late ’90s, where suddenly all public transport vehicles had to move from diesel to compressed natural gas, that was seemingly the solution to Delhi’s pollution problem. And it seemed like that for a while.

This was, of course, a completely draconian measure; the only vehicles which had to change their fuel were public transport vehicles. Public transport took a beating in Delhi at the time, which it has still not recovered from. In absolute numbers—not even in relative terms, in absolute numbers—there were more buses in the late ’90s in Delhi than there are now. Auto-rickshaws, which—the common man’s mode of transport, widely used in Delhi, suffered massively, which led to the fact that most auto-rickshaw drivers could no longer afford to own their own rickshaws.

What I’m trying to say is that at that time, it seemed like a good idea, that there was a perceptible drop in pollution in Delhi after this move to CNG in public transport. But look what happened 10 years later. There’s two aspects to it. One is that these people who were directly affected, that is, the people who operate and run and people who—these public transport vehicles were very, very badly affected, as well as people who used this public transport were badly affected, leading to a move towards private transport in a big way.

The second aspect, it wasn’t really a solution actually. Ten years later, what we see is that the sheer number in terms of expansion of private transport has taken a toll. Delhi is—I mean, there is no solution in sight anymore. What happens is this kind of undemocratic—or not just undemocratic; judicial action doesn’t have to be democratic in the sense that political action has to weigh its pros and cons—but not even listening to the affected parties, which is what PIL process is about. These people who—these auto-rickshaw unions, et cetera, were not even properly heard. They were not even given a voice in this matter. [crosstalk]

RAJAGOPALAN: Yes, and one is a matter of representation. It is a question of, whether anything comes out of it or not, they must be heard, because they’re very important stakeholders in this policy. But there is another aspect. Were you to hear these stakeholders, your cost-benefit analysis might change, which is why we leave some of these things to the legislator, in terms of aggregating preferences. In the case of air pollution in Delhi, there’s very clearly a cost and benefit associated with it. None of us likes the idea of pollution, but there is no pollution when there is no economic activity. As a society and as an economy, we decide that we’re going to lie somewhere on that tradeoff between willing to live with a little bit of pollution for greater economic activity.

The court chose one end of that tradeoff, I believe incorrectly. They chose one end of this tradeoff precisely because they didn’t truly understand the nature of the tradeoff, and they didn’t truly understand the nature of the tradeoff because they did not hear all the relevant parties. The legislature’s inaction in some of these cases may simply be—one explanation is, the legislature is just asleep at the wheel. Another explanation is, these are not easy problems to resolve. It does take time to formulate a good pollution policy, and we do have to worry about poor people’s transport.

There’s an allocative aspect to this, there’s a distributive aspect to this, and we do have to worry about who pays the congestion tax. In that sense, it seems like the court is not a very good platform for policy making of this sort, despite its best intentions, simply because it does not have any kind of procedural foundation which can accommodate and analyze these costs and benefits.

Judicial Policy-Making Has Unintended Consequences

BHUWANIA: Totally. I completely see your point. Let’s assume that the court has the best interest at heart. Let’s assume that the court really wants to solve the problems that it’s trying to address. So let’s talk about the manufacturing question. The deindustrialization of Delhi happened really through one case; the cause of action kept changing multiple times. It started in ’85, and it continues to still be there. I call it a many-headed hydra, or a case with nine lives, just to get to the point of manufacturing. In the ’90s, the court actually ordered the closure of what they called “hazardous industries” in ’96.

Delhi has never been a particularly big manufacturing hub, unlike, let’s say, Bombay or Ahmedabad or Coimbatore. Delhi has had, of course, manufacturing, a significant one, but nothing of that scale. Anyhow, there were some important units, especially in West Delhi area, which the court ordered the closure of. It led to more than 100,000 laborers who had regular jobs suddenly becoming jobless, and the court never really gave them avenue to address their issues at all. The manufacturers actually benefited because they were able to sell that industry land as real estate, as commercial property.

Three years later, in the same case, the court ordered the closure of what it called “nonconforming industry,” which are basically manufacturing units which are in areas which are not deemed to be manufacturing as per zoning laws. This is some imagination of the City of Delhi that the court has, that zoning laws are being complied with. Anybody who’s seen Indian cities would know that it’s not a reality that corresponds on the ground at all to the imagination.

What has led to this order of the closing of nonconforming industries, this is—we’re talking about small-scale manufacturing units which were many hundreds of thousands, literally, in terms of units itself. And the number of people who were employed, probably, we’re talking about at least 500,000 people. These are massive numbers who suddenly didn’t have a job. The deindustrialization of Delhi happening through this, and without these people who are directly affected being in any way made a party to the process—and this is all happening in the name of pollution, by the way.

This is just one aspect of—Delhi, we know now, in 2020 is one of the most polluted cities in the world, and the court has been at it for 35 years. It has actually compounded the problem, in my view. Manufacturing is one, transport is another. We just talked about it, it never really—in fact, it’s been directly complicit in destroying public transport in Delhi. Public transport in Delhi has never recovered from the court’s intervention.

RAJAGOPALAN: Yes, it’s created 20 cars instead of every single bus, because it just killed the public bus fleet.

BHUWANIA: Absolutely. The slum problem, again, the court—of course, it took this drastic action of taking these eyesores, as many like to call it, of slums outside, but what has it led to? Again, the court has just made people homeless in—literally millions, so we’re talking about—we can say, of course, that it has been anti-poor in all of these; that’s what’s common. But at the same time, what is also common to all of these is, the court has actually not made directly affected parties party to the process.

In civil procedure, there’s an old-fashioned but big key doctrine, basic doctrine of necessary and proper parties. That is, you have to hear parties who are necessary to the case before adjudicating on them. During the adjudication of the case, the court never heard these people, so this is—we can say it’s a technical procedural point, but it’s absolutely key point. This is not adjudication if doesn’t really hear the necessary, proper parties.

RAJAGOPALAN: Nor is it governance, because the key aspect of legislative and executive governance is that they take the trouble to represent the people as elected representatives. I know the democratic process is not perfect. I mean, in public choice, we have all the issues of the rationally ill-informed voter and the self-interested political actors, and then various rules of first-past-the-post which affect the outcome. But in some sense, there is still some kind of political representation going on of all parties concerned, which simply doesn’t exist with the judicial system.

Now, I want to step away from your charitable view for a second. A few moments ago, you said, “Let’s assume that the court has the best interest at heart,” and I know why you said that. It is to make the larger point of, even with the best of intentions, what happens when we relax procedural requirements? Now I want to step to the next-level problem, which is, in one sense, relaxing these procedural constraints and making the court all-powerful, has it in any way changed the way the court behaves, in that it is way more self-serving than it ever was?

When you are not allowed to take suo moto cognizance, or you actually need to have parties to the petition and you need to hear them—when you can’t relax standing—in a sense, your power is reduced, because you got to follow the rulebook. Now that all those standards have been relaxed, it seems like the court can do, or individual judges can do, a lot more to serve their own interests. Do you think that’s a fair assessment of what is going on?

The History of Judicial Power in India

BHUWANIA: Absolutely. The thing about rules is that they also limit the court. The court has to be accountable with regard to certain standards which have been set in rules, statutes, or the constitution, et cetera. What has happened in the last four decades now is that the court doesn’t see itself limited by any such thing anymore. This is with regard to—of course, PIL was the start of it, but it’s now with regard to anything. With regard to criminal cases, civil cases, family law cases, it is not . . .

Recently, there was a study by Raeesa Vakil on the Supreme Court’s jurisdiction we’re talking about. There are provisions in the constitution which prescribe its review powers, which talk about its contempt powers, et cetera. She talks about how, almost in all of these aspects, the court has gone way beyond it. The court doesn’t see itself as limited by the constitution; the court sees itself as above the constitution itself. That’s a remarkable thing for the court to do with the constitution. If that is its view of the constitution, you can imagine what it does to statutes.

This is actually related to the kind of attack on the legitimacy of the Indian judiciary in the mid-’70s, led by Mrs. Indira Gandhi, who was a highly popular prime minister elected in 1971 on a massive mandate. The portrayal of the Indian judiciary as this elitist institution with a colonial heritage, which is not sufficiently Indian, led to a lot of things, and this churning of the ’70s is what it led to. But the idea was that we have to move away from this formalism of this Anglo-American tradition, and we move to something more Indian, which is informal.

This kind of indigenist argument was being made, which PIL actually was very much part of, but there were other aspects to it. The so-called people’s courts, or lok adalats—tribunalization again, which she herself was instrumental in pushing, but this is, of course, a long genealogy that I’m talking about. But what it has led to is that the court started seeing itself in a very different light. The court no longer was interested in procedural justice. It saw itself as being able to deliver substantive justice. The court was going much beyond what a traditional common law court is supposed to do, and PIL just opened the floodgates.

RAJAGOPALAN: And now it delivers neither. It neither delivers procedural justice nor substantive justice, if one is to take seriously your concern about half a million people suddenly out of a job, hundreds of thousands of people suddenly out of a home, and so on. It’s neither managed to deliver the old socialist idea of speaking for the regular person or the poor person in a substantive way, giving them positive entitlements, nor has it upheld the old formalism of the Kania Court or something like that.

BHUWANIA: Right. Certainly procedures out of the way for—the court has far more contempt for it, but substantive justice is a complicated thing. For a lot of people, this might be actually okay. Substantive justice is a matter of interpretation. For a lot of people, they don’t particularly—these might be courts that are okay for the state for a less polluted city or for a cleaner city. I don’t subscribe to that view, but substantive justice is one of those things which is a completely subjective—

RAJAGOPALAN: There’s no single definition, and it depends on who is the affected or the injured party.

BHUWANIA: Absolutely.

RAJAGOPALAN: That’s actually a great point that you raise. This is where I think a little bit of the history and the ideology comes in. In large part, the popular support was with Mrs. Gandhi because she stood for socialism and Garibi Hatao and speaking for the poor man. What was getting in the way of taking away privy purses, or overnight nationalizing banks, and taking away things from the rich to redistribute to the poor—it was the constitution and the legal formalism of the court.

In one sense, the balance was tipped where Mrs. Gandhi could get away with a lot of things even though she did not follow democratic procedure, because it seemed like she’s the true representative of the people. In part, Justice [PN] Bhagwati, Justice Krishna Iyer, who were also of socialist leanings, thought it is time for the court to reclaim and refashion itself from an ideologically neutral position to a position where it does espouse a populist ideology, and start taking cognizance of those cases.

As an anthropologist, how much do you think the court has moved away from its original ideology? My interpretation of the court as it works today is not that it is socialist, but that it is middle-class elitist. That’s my perhaps uncharitable view, but the kinds of situations that the court takes cognizance of is, “In posh Delhi areas, we shouldn’t have an illegal settlement, or we should not have beggars begging on the street.” These are the sorts of cases that the judges of today are perturbed by, whereas the judges of the ’70s and the ’80s were perturbed by the situation of slum dwellers in Olga Tellis, or Bandhua Mukti Morcha, which is bonded laborers, and children who couldn’t represent themselves, child trafficking, human trafficking. Those were the sorts of cases then.

Now the cases are, “Let’s get rid of the public bus service, and let’s get rid of the eyesore of beggars begging on Tilak Marg.” Do you think the ideological slippage, or the ideological shift, it’s a coincidence and it’s just led to a particular kind of bad outcomes, or this was just inevitable?

BHUWANIA: There’s been a lot of writing on these kinds of seemingly anti-poor concerns of the court, and there’s been analysis of what Professor Upendra Baxi would call the structural adjustment of judicial activism, or the neoliberal turn, et cetera. This is perhaps arguably valid. I’m not arguing against, but I think what’s perhaps more interesting is that the court could become such an important instrument to make this happen. It seems like the concerns of the chamber—but that’s logical populism.

Mrs. Gandhi, who fought elections in the famously Garibi Hatao and the question of poverty, the most famous aspect of her victory in ’71 became—her concern became her population. You move from poverty to population. Mrs. Gandhi was, of course, a great populist, but so is our current prime minister, but his concerns are very different. So populism is an inherently unstable phenomenon where the concerns can change.

The story usually that’s said about PIL is that in the ’80s, the cases were about poverty. In the ’90s they were about the environment, and from 2000 onwards really about good governance. Perhaps there’s a logic to this, but to my mind what is remarkable is that the, quote, current populist mode enables whatever its hobby horse may be, and often it’s a hybrid mixture of all of these. Therefore, for me, the concern is really of the procedural move the court is making, and tomorrow the concerns may be different. The kinds of cases that are heard now could be about national anthem. You could argue maybe now it’s a more nationalistic phase based on what’s the current currency of the country, what’s currently popular in the country.

RAJAGOPALAN: As the tide ebbs and flows, it’s going to bring different kinds of waves of cases. We simply cannot control that, and that has very little to do with the ideology of the judges or the petitioners and far more to do with the fact that there is no procedure and there is no rulebook. One other question regarding the design of the court—and this also has something to do with the lowering standing requirements that we discussed previously.

Interest Groups Capture the Courts

RAJAGOPALAN: My argument while studying these processes has been that interest groups have managed to capture the court. When I say interest groups, I’m very agnostic to which interest group. It could be the environmental lobby, it could be the Delhi middle-class lobby that would like less congestion, but my argument is that interest groups lobby for action in any democratic process. What motivates interest groups is that particular issue, but their actions are constrained by costs and benefits. One consequence of the judiciary reducing standing requirements has been that it has reduced the cost or the barrier to entry to approach the court for a rule change, which makes it much easier for interest groups to capture the court, or rather capture policy through the courts instead of capturing policy through the legislature.

Do you see interest group capture of the courts as we have gone on this public interest litigation journey?

BHUWANIA: Yes, absolutely. Entry barriers being relaxed is remarkable. It’s true that it’s easiest thing to file a PIL on anything, especially if access to Delhi is important because it centralizes the system. You’re right. You earlier said also about—all of these aspects have been discussed. No government can ignore the many interest groups who are affected by policy-making process on all of these issues. They may be slum dwellers, they may be builders, they may be various kinds of interest groups, but the court can actually do that. That’s one important difference between the court and—as you said, it will be very difficult for any democratically elected government to evict a million people or to—the only time it happened was during the Emergency, which is not a coincidence.

I do think that this whole argument by a philosopher called Lon Fuller on polycentricity of issues—that adjudication is ill-suited to polycentric issues. For instance, pollution, which in Delhi—which is obviously many aspects of it. The court decides to bracket some of these aspects and just bulldozes its way through—literally, in many instances. Now, I believe that however flawed the democratic system in India is—very massive flaws—and however many problems we have on these issues, I think the judicial system is probably even creating more problems than it solves in many instances. One should be very careful.

RAJAGOPALAN: As you rightly pointed out, interest group politics is going to have some positive effects in some cases. Because of reducing barriers to entry, some negative cases. Same with PIL, right? Some people might think that Delhi has become actually cleaner and greener. Some people might think the cost we paid for it in terms of human lives and livelihood is very high. I think there is a hidden cost to the PIL structure in general, which is really harming the Indian society, which is different from—on a case-by-case basis because the judiciary has decided to constitute a couple of benches. I believe Mondays and Fridays are now reserved for PILs in the Supreme Court. Similarly, in Delhi High Court they are not hearing as many of the regular cases as the court would.

I guess what I’m saying is, like executive and legislative state capacity, judicial capacity is also a limited resource. They are devoting a massive amount of this limited resource towards PIL and governance, but in the process, regular cases don’t get heard. I think the worst instance of this is the postponing of the habeas corpus petitions that came out of Kashmir. Then they were sent back to the High Court simply because the court said, “We don’t have time to hear these matters.”

Instead of hearing habeas corpus, which according to me is the most important constitutional mandate of any court, they’re listening to slum cases every Wednesday for years on end. This has a different unintended effect on the delivery of substantive justice within the Indian legal system, either in terms of pendency of cases, but also in terms of, it is simply not able to hear urgent matters where human life and dignity are at stake.

BHUWANIA: Yes. It’s true that PIL do take a lot of time of the court. Now, this is a really controversial point because some people have argued that in terms of pure numbers, PIL are like 0.5% of the court docket—Supreme Court. Average, it’s a very small number, so what’s the big deal? Actually, I think that’s a misleading argument because many of these cases are not really cases that we understand. For instance, the Forest case has probably had, I don’t know, probably 1,000 hearings already. Many of these cases are heard every week, literally.

RAJAGOPALAN: Yes. When you add up all the individual orders, it’s not 0.5. It really adds up to a large number.

BHUWANIA: Absolutely. One policy case might have taken as much as a whole jurisdiction in a particular area. At the same time, it’s difficult to quantify how much time the court spent. Certainly, it’s a substantial amount of time that the court spends. The thing is that we have seen, in the last three years particularly, the sheer randomness of the court deciding what gets priority in its roster and what doesn’t. Of course, it’s completely arbitrary. Suddenly, the habeas corpus cases are the most unconscionable of them all. In general, that has been the case.

The Kashmir cases, of course, make it very clear, but there’s been a long history of the court being less and less interested in habeas corpus, in general in negative liberty. In the last three, four decades the court has not particularly been interested in civil liberties in general.

RAJAGOPALAN: Why do you think that is? Is it because it doesn’t increase its own power and its own interests in any way, or is it because those are just harder cases? Do you think in the case of Kashmir in particular, and more generally habeas corpus cases, is because it has to go head to head against the executive of the day, and that’s hard to do? What do you think is going on when it comes to court protecting civil liberties? Because historically, the Indian Supreme Court has a great track record of protecting civil liberties. In recent times it has completely flipped on that mandate.

BHUWANIA: So I think, again, like with most things with the court, the key date is like the mid-’70s, where it just completely flipped. Historically, so I think, to sum it in one line, the court moves from being the judicial review, classic counter-majority institution to being a populist court of “judicial populism,” where it’s negatively but is less important for it. Yes, so in fact, it’s actually—for once we actually have data, and George Gadbois’s writings in 1970 in Economic and Political Weekly actually studied Supreme Court cases for the two decades till then and looked at the sheer number of cases where the court would decide against the government, would strike down statutes.

It’s quite a remarkable number. I don’t have numbers in hand right now, but it’s certainly quite substantial and probably unlike almost anywhere else in the world at the time. This changes drastically. It’s interesting because this idea that the Supreme Court of India is the most powerful judicial system in the world, which came about in the ’90s, in the early ’90s, people still talk about it. It’s interesting that we don’t talk about the court from the ’50s and ’60s as the most powerful, because that was the time when the court would dare repeatedly to pronounce against the government, to actually strike down statutes.

Interestingly, I haven’t done the study the Gadbois did. I hope somebody does that thing with the scale is much larger. It’s rare to see the court actually strike down a statute in recent times. It’s rare to see the court decide against even the government in the last five, six years. So what’s going on—

RAJAGOPALAN: So it switched from a court of judicial review—and, therefore, genuinely a check and balance to the executive and the legislature—to one that is in some sense complementary to the executive and the legislature, almost usurping the reign of the executive and legislature in its populism.

BHUWANIA: In fact, my dissertation actually led to this book; it was called Competing Populism. It’s competing with that. What I try to argue is that when Mrs. Gandhi and her lieutenant, Mohan Kumaramangalam, used to talk about the need for a committed judiciary, which would not be acting as a counter-majority institution, which would not be stopping the court’s populist measures. For instance, you mentioned nationalization of banks, privy purses abrogation. These are all very important moves of the government at the time, which were struck down by the courts.

What happens, to my mind—and the judges you mentioned were appointed. Justice [PN] Bhagwati, Justice Krishna Iyer, the most well-known socialist judges who were instrumental in the creation of PIL. These are appointed by Mrs. Gandhi during that period. If I’m not wrong, Justice [PN] Bhagwati was actually appointed after the supersession of judges; he was one of the judges who was appointed.

RAJAGOPALAN: Yes, you’re absolutely right.

BHUWANIA: This is obviously a highly politicized moment in the history of the judiciary, and this is not a coincidence. What I argue is that it does lead to a committed judiciary, that Mrs. Gandhi’s challenge is actually successful. Particularly so after 1977, in fact, when people talk about the low point of the judiciary as 1976, the ADM Jabalpur case—which is, of course, one of the low points.

RAJAGOPALAN: Also a habeas corpus case.

BHUWANIA: Also habeas corpus case. In fact, I keep saying that we exceptionalize that judgment too much. There is far too much continuity from that to now.

RAJAGOPALAN: Yes, I would agree.

BHUWANIA: What the judges have been doing since then . . . Minerva Mills, I think, is a remarkable judgment. This is a case where there are many aspects to it, but a particular amendment which had explicitly given primacy to directive principles that were fundamental rights—

RAJAGOPALAN: This is the 25th Amendment and Article 31C [crosstalk]

BHUWANIA: 25th Amendment and 42nd Amendment. 25th Amendment, which Mrs. Gandhi made it immediately after she came to power in ’71. So Justice PN Bhagwati’s argument in Minerva Mills judgment (page 53) is really, to my mind, it’s a minority judgment. There’s a lot of background perhaps one needs to give for this, but he actually argues that directive principles can be given primacy of fundamental rights, contrary to the majority judgment. What I would argue is, that actually is what happens in the four decades since then. Although it’s a minority view, but the logic of 31C is where the court starts heading from that point onwards.

RAJAGOPALAN: There is a twofold move here. First is, directive principles become justiciable and enforceable, which was never the original intention of the constitutional framers. Second, once they become enforceable in the moment of a conflict between fundamental rights and director principles, fundamental rights no longer have primacy. The original challenge was that this shouldn’t be the case. Minerva Mills opens the floodgates and restricts the case of fundamental rights primacy only to articles 14, 19, and 21. Which is also now become very loosey-goosey, but it really opens the floodgates in that sense, right?

BHUWANIA: Right. In fact, I argue that director principles, from being then only nondecisive about the constitution, become the only justifiable parts of the constitution.

RAJAGOPALAN: Parts of the constitution.

BHUWANIA: Because everything else is viewed through this—

RAJAGOPALAN: Through this lens. Yes.

BHUWANIA: —lens of this chapter.

RAJAGOPALAN: A lot of the director principles have now made their way into fundamental rights through Article 21.

BHUWANIA: Absolutely. In fact, I also argue—I mentioned it, I think, in chapter 4—is that at this point, 21, which reads as, “No person shall be deprived life or personal liberty except procedure standards by law”—I think everything else is in 21 now, except for that

RAJAGOPALAN: That due process.

BHUWANIA: Due process. You could have all kinds of rights being read into it, except for its little what it’s supposed to cover. That’s where we are.

The Powers of the Judiciary Are Unlimited

RAJAGOPALAN: Now, going to the most uncharitable part of my view on what’s happened is not just the judges rewriting the rulebook or, in some sense, throwing away the rulebook. But the court has used the PIL mechanism to become a self-appointing court. This, of course, requires a little bit of background. Originally, Article 124 was required to appoint judges to the Supreme Court, and there’s a similar provision for the High Courts. That had the word “consultation” in the text of the constitution, where the executive and the senior members of the judiciary would have to consult each other before choosing the next set of judges. This word “consultation” has been completely reinterpreted in a way that the appointment procedure, which is in the original text of the constitution, has nothing to do with the way we appoint Supreme Court and High Court justices today. After the First, Second and Third Judges Case, the way we appoint judges is through the Collegium System, where the Chief Justice of India and four of the next four senior judges, former Collegium—it’s a completely opaque process.

They are the ones who make nominations. They are the ones who make selections. It’s a black box. No one knows why a judge was elevated or transferred or appointed, and any attempts to change that—which happened with the constitutional amendment for the NJAC, which is the National Judicial Appointments Commission, and the following NJAC Act—was also struck down by the court. Today, the judiciary is appointed by a memorandum that was written by the court and vetted by the executive. We seem to have a bizarre move where they’ve used the enormous powers that the Supreme Court gained through the PIL procedure. Then it used to insulate itself from any external oversight.

What do you think happened there, and how do you think they got away with it? It’s a very strange court. I don’t know any other court in the world that operates like this.

BHUWANIA: I would say it’s actually there from the beginning. One of the first important PIL cases, which actually programmatically enunciates the idea of dilution of locus standi case, is the SP Gupta Case—the First Judges Case.

RAJAGOPALAN: The First Judges Case.

BHUWANIA: It’s funny that 980, one of the first PIL cases, is actually about transfer of judges. It’s about a Supreme Court lawyer called SP Gupta filing a petition, which is treated like a PIL, challenging the transfer of judges. It’s been definitely a beginning, and by the ’90s, the court had enough political capital to give a judgment, which it does in ’94, as you mentioned, about—

RAJAGOPALAN: SCAOR versus Union of India

BHUWANIA: Exactly.

RAJAGOPALAN: —which is the Supreme Court Advocates on record; it completely redoes the Collegium system.

BHUWANIA: Absolutely. Now, two aspects of this Collegium business. One is, of course, to look at whether it has served its purpose in terms of the Collegium. Has it led to a better higher judiciary in that sense of whether it has led to more representative, higher quality, et cetera? I know there are a lot of people who have differing views on it, and representation is certainly highly contested, whether it has led to a more representative judiciary, or whether it’s a level higher quality. Again, it’s highly debatable. It’s very difficult to adjust that. But the second aspect of mind is more troubling, which is, this is, of course, a well-known judgment and spectacular when the court decides that it will appoint itself from there onwards. It’s an amendment with the court does have the constitution to serve its own purposes.

What is the expressive function that adjustment like this brings about? That the court is no longer bound by the constitution, and because of some other higher purpose, let’s say it can actually go beyond the text of the constitution. It has actually done so with regard to other aspects of its powers. Whether it be the power [of] what’s going to do complete justice in 142, a contempt power, or review powers as we are seeing now in the Sabrimala case with regard to the question of religion and access to religious spaces. The weight has gone about interpreting review powers.

In fact, one of the arguments is that since it’s a PIL, there is no limitation with regard to review powers. What it has led to is that the court increasingly feels that as long as there are certain positive results that come out of a judgment like this, it’s okay to just sidestep the text of not just any law, but the constitution itself. This is extremely troubling, and to my mind, it has led to—the institutional impact of it has been extremely—

RAJAGOPALAN: Corroding. Corrosive.

BHUWANIA: Corrosive is the correct word.

RAJAGOPALAN: You raise a very interesting question, which is that the Supreme Court believes it is no longer bound by the constitution. The worst, most egregious form of this is in the self-appointing nature of the court. It has not just reinterpreted 124. It has rewritten in— [crosstalk]

BHUWANIA: Absolutely.

RAJAGOPALAN: —a constitutional provision, which it doesn’t have the authority to do. I would extend that and say the Supreme Court, at least in recent times, also doesn’t apply its own rules to itself. The most immediate case that comes to mind is the Vishakha ruling, where the Supreme Court actually legislated from the bench. And it’s set up way before the #MeToo movement or any court in the world, or even the legislature in India and many other parts of the world. It actually created guidelines on sexual harassment in the workplace. Those guidelines eventually form the basis for the statute that was passed in Parliament.

When it came to a sexual harassment complaint against one of its own members—actually, its more senior member, the Chief Justice of India, Justice Gogoi—suddenly, none of the Vishakha guidelines were followed, neither in spirit nor in letter. The committee that was formed to address the complaint did not comply with the Vishakha rules. It was a really bizarre case, where the court just decided all its members were complicit in this, not just the Chief Justice of India. The court decided that none of the rules that apply to any other institution in India would apply towards constraining its own behavior. Maybe because it’s a force of greater good or something like that, but to me, it seems like the most dictatorial, self-serving move. This is a classic move of dictators and bad monarchs.

BHUWANIA: Absolutely. This is an astonishing case even by the court standards. The way it went about this so-called inquiry was really—followed no rules. The most astonishing aspect was the fact that suo moto it started a PIL, actually, just the day after the complaint—

RAJAGOPALAN: Was lodged.

BHUWANIA: —was lodged. It’s on a Saturday, if I remember right. The court, including the Chief Justice himself, who was directly who was accused in this case, along with two others judges, sat in a case which is called In re . . . was it?

RAJAGOPALAN: In reference to a matter of great national importance or something like that. The matter they were looking into was “meddlesome complaints to diminish the stature of the judiciary”.

BHUWANIA: Absolutely. This thing is only possible in the post-PIL judiciary. Of course, you may say that there are obviously many problems with this. The fact that the judge who was directly accused was himself judging, is in his own case.

RAJAGOPALAN: Case which has happened before many times.

BHUWANIA: Right. A second thing is that eventually, the order that came did not bear his name, which was also bizarre.

RAJAGOPALAN: It assumed a negative outcome of an ongoing sexual harassment inquiry before the inquiry was conducted.

BHUWANIA: Absolutely. There can be no way to justify it, and only a court which has absolute contempt of procedure and a highly elevated view of itself could even think that it could get away with it. I don’t think it has gotten away with it because I think the public view of the judiciary has certainly been shaken by, if not anything else it has done, certainly by this case. I do think that the court has always had double standards for what it does. I mean, for most elementary aspect, for instance, Article 32 allows for any Indian citizen to approach the court directly with regard to any violation of fundamental rights.

The court, whenever it wants, it refers any such methods to High Court, say that you should go to the High Court first. Now, there’s clearly mentioned provision in the constitution that you have a right to avail this remedy, but the court decides it, and whenever it decides vice versa decides. The interesting thing about this court is that actually, we can talk about its relaxation of rules and all of that, and informality, but whenever it wants, it can become ultra-formal and ultra-technical. That has always been its ability to change the rules whenever— [crosstalk]

RAJAGOPALAN: As it suits it.

BHUWANIA: Exactly. Exactly. The Vishakha case—there are other aspects of that. In this case, I have to say, even by the court standards, it’s been amazing. It’s been astonishing to watch.

Judicial Reform in India

RAJAGOPALAN: How does one roll this back? There are two parts to my question. One, I’ve said that the court needs a Ulysses pact. The court needs to tie its own hands for two reasons. One, if it’s truly the elevated institution that it is, it must set the example, but more importantly because it will not allow anyone else to tie its hands. Any time there has been an attempt by the executive and the legislature to discipline the court or to streamline this mechanism, it goes back and invokes the excesses of Mrs. Gandhi during the Emergency and says that that is interference, and it is a threat to judicial independence. We can’t possibly have any involvement of the legislature or the executive in appointment procedure, or transfer procedure, or anything at all.

In this world where the external branches of government are not allowed to tie its hands and the judiciary won’t tie its own hands, how do you think this beast can be rolled back? How do you cut the heads of the Hydra? It’s a hard question, I understand, but where do you think is the starting point to think about this problem in terms of judicial reform?

BHUWANIA: The one positive thing that has happened in recent times has been the emergence of a culture of criticism around the court, of the court rather, in the last maybe decade or so, especially the last five years or so. That, I think, is one positive development. Legal academia had in essence been complicit in all the pathologies in the judiciary and also in legal academia.

I think the last five years or so has seen an important change that finally we have this culture of criticism emerging, and it’s sometimes devastating. Most of it deserved, in my view. Perhaps there is no short-term solution to this. We’re talking about a very long haul, where perhaps the eroding legitimacy of the court—for instance, the sexual harassment case that you mentioned, and so many other instances—what’s happening in Kashmir, and so many instances that are really in a sum—the role of the court has been so dubious that perhaps that will have its long-term impact.

Though, I have to say that the difficulty with that is that India really doesn’t need a judiciary which actually practices judicial review. What has happened is that the delegitimization of the judiciary—and it’s being seen through such a cynical lens, which is, in my view, mostly deserved. India really deserves a counter-majority in court. It needs one. This omission that the court has been party to for the last four decades is really—the onslaught of civil liberties that we see in India on almost every important—the interesting thing is that Indians are mostly quite cynical about almost all political institutions, except for the judiciary till recently. Maybe this increasing cynicism will lead to a certain kind of churning.

It can also lead to devastating results in terms of the fact that an authoritarian government, a popularly elected government wants to pass laws which are violating civil liberties—all we have is the court. Of course, popular constitutionalism has emerged in a big way in recent times, and that perhaps is another avenue in which we could see rapid change. That the court is not the final word on the constitutionality of statutes, et cetera. The court doesn’t do its job. That’s a very difficult path, and there are no easy answers, frankly.

Anuj Bhuwania’s Education, Influences, and Process

RAJAGOPALAN: Absolutely. There are no easy answers. I have a couple of other less serious questions. I’m very curious about your background because you’re trained as a lawyer and you’re also a trained anthropologist. Your work is in legal anthropology, which is a phrase we don’t hear very often. Now you’re back to teaching at a law school. I’m just curious about your professional and intellectual journey.

BHUWANIA: Yeah. Mine has been a bit of a curious journey and of a self-chosen peripatetic academic. I graduated from National Law School, Bangalore. I worked for trial lawyers in Delhi for a year, mostly in criminal law. Then I went for a master’s in law at SOAS in London, which is where I got exposed to the entire world of social science writings on law. In national law school where I did the five-year law degree, I had done courses in history and political science, et cetera. It had been exposing a little bit to other disciplines, but SOAS is really an exciting place in terms of work going on South Asian history, South Asian anthropology, for instance. My dissertation was actually on modern legal history. It really opened my horizons in a completely new way. I was exposed to people doing very interesting works on law outside the legal discipline.

I was reading Partha Chatterjee, Mahmood Mamdani. Legal history at the time seemed like a particularly interesting area, also legal anthropology. After the master’s in law, I clearly enjoyed that experience a lot, and I wanted to continue in academics, but the option was whether to continue in legal academics or do a PhD in law or in social sciences. It seemed like that was the most exciting place to be at the time. A lot of interesting work on legal history was happening in anthropology, so people like Anupama Rao, Partha Chatterjee, Elizabeth Povinelli, Brinkley Messick. It was clearly an embarrassment of riches at the time in Columbia University. It still is, of course.

That’s where I went, and obviously, I didn’t really know much about what the American experience would be like. I’d never really been to the US, and the American grad school experience [was] very different from what I had been exposed to. Of course, I was doing coursework in anthropology for three years. Legal anthropology as a discipline, also, I was exposed to the first time. And then, of course, I later realized that the Columbia version of legal anthropology is a very specific one. It’s much more of a historical anthropology approach inspired by Michel Foucault and his particular methodology. My supervisor was Brinkley Messick, and my chair was Partha Chatterjee. These are people who are really influenced by Michel Foucault’s work. That was the approach that I was also trained in.

My PhD was on PIL which resulted in the book. When I came for fieldwork I also spent some time as a fellow at the Center for Study of Law and Governance at JNU, Jawaharlal Nehru University, which is where I taught for the first time, a whole course along with Pratiksha Baxi, who’s a well-known legal sociologist here. It was really interesting to co-teach a course with her because her training is very different. She’s very much a legal sociologist. Well, the term itself tells you that in India, what’s called anthropology in the US is really called sociology here. She studied in Delhi School of Economics here in Veena Das—probably one of the most well-known sociologists in India and anthropologists in the US. That was a very different kind of legal anthropology that I was exposed to by her, and through her, a lot of other scholarships coming in from the US.

Legal anthropology, I found, was a particularly useful way to study PIL, in particular public interest litigation, which is what my book eventually came to be about.

RAJAGOPALAN: This is more about your own production process. How does a legal anthropologist really work? What do you do on a day-to-day basis, right? What is your writing process? What is your evidence collection process? If you can just tell us a little bit about that.

BHUWANIA: I’ll talk about how this book came to be written—how I can do research, really. Think about—the principal methodological means that an anthropologist studies any phenomenon is what’s called an ethnography, where we’re talking about in a qualitative empirical study of a time and place and done through what’s called field notes, basically. A form of diary writing. The father figure of anthropology is a man called Malinowski, who had famously a diary which had its own controversy around it. This thing called ethnography as the principal methodological move that an anthropologist makes is what we do. It was interesting for me because I was also a lawyer, so I would literally be dressed as a lawyer and carry a lawyer’s diary and use the lawyer’s diary and use that to basically observe what’s called participant observation. That’s what supposedly a technique.

RAJAGOPALAN: Do you collect all the details first and then begin the writing process? Do you write simultaneously as you do the ethnography?

BHUWANIA: Ethnography, literally ethnos plus graphos—ethnos, community to find a place in time, and graphos is writing. Of course, it’s essentially a form of writing that we are doing, but when you’re adding field notes, we’re already doing some writing. When I was doing this research, I was doing this for almost 30 months. And it’s a very long time, and the book is actually a small part of what I spent my time researching. I still have enormous amounts of my field notes and materials that I collected. In that sense, it is really doing this over a period of time. By the end, the writing has its own alchemy, is what anthropologists believe.

RAJAGOPALAN: Research and writing is not separate, in that sense.

BHUWANIA: Absolutely. I’ve tried hard to not make it a legal academic book. Of course, it’s very much about legal technicalities as well, very much so, but I’ve tried to write for the general audience because I think this topic is such that I think it’s something that concerns most Indians. Well, unfortunately, and I tried to read and write in an accessible way, which is not so common in my discipline, I have to say, but I’ve tried to do that.

RAJAGOPALAN: I’m just more curious about you personally. Do you write every day? Do you write at the same time of the day?

BHUWANIA: The writing is the most difficult thing, in my view. I don’t know how. People talk about the pleasure of writing; writing, I find it very difficult. I’m not very regular, to put it mildly. Anything distracts me. Of course, now in the world of social media and internet, obviously, it’s the easiest thing to be distracted. I wish I could say that I was a regular writer, keeping a journal regularly. When studying something actively, I do, but ordinarily, not so much. Anything distracts me, so it’s one of those—you have to lock yourself in a room and try to—of course, I am actually a binge writer, which is not something I recommend to anybody.

Once I have done what I think is adequate research, and once that I think of a fairly clearly formed idea, I just write. It comes out like that. I’m very bad at deadlines. I’m really not somebody anybody should, at all, follow. For me, when I feel like I know enough about it that I can put it down, that’s what I do, actually. I eat a lot. [chuckles] I keep taking breaks to snack. Perhaps that’s to reward myself for having written a few sentences or paragraphs, I would take a break.

Film and Television

RAJAGOPALAN: There are lovely movie references scattered all over the book. Do you watch a lot of TV shows and Netflix and movies? What is the distraction outside of writing?

BHUWANIA: I’m a big movie buff. I’ve been a movie buff forever since when I can remember. One of the best feedback for the book is when—my friend was actually a film theory person; she said read it from cover to cover.

RAJAGOPALAN: What are some of your favorite legal movies, or even PIL movies as a subset of legal movies?

BHUWANIA: Well, PIL movies, there’re quite a few. I talk about this movie called Jolly LLB, the one and part two

RAJAGOPALAN: Jolly LLB is in the book.

BHUWANIA: I really enjoyed those movies. Of course, their representation of PIL is highly problematic.

RAJAGOPALAN: The judge is very entertaining in both those movies.

BHUWANIA: Absolutely. I really enjoyed them. Court, of course, is a great movie, especially for teaching.

RAJAGOPALAN: It’s very Kafkaesque. It doesn’t leave you happy like Jolly LLB. It’s quite depressing like the PIL story.

BHUWANIA: There’s this film, this art-house film called Ship of Theseus which came a few years back. There was a particular part which is all about the court process. The interesting thing is that, actually, India has very little courtroom drama going on in cinema, relative to the—

RAJAGOPALAN: What it used to have in the ’70s.

BHUWANIA: Yes, especially compared to US, as a place that where the genre is such a huge one. There’s nothing like Law & Order or even any police procedural dramas. That’s an interesting thing considering—

RAJAGOPALAN: Culturally, you’re right. That’s an interesting thing that we don’t do that.

BHUWANIA: Considering our lives are so suffused with legal reporting. Pick up any Indian newspaper any day, there would be as much writing on the court as on any other institutions, if not more. I watch a lot of Netflix, too much.

RAJAGOPALAN: What are you binge-watching now?

BHUWANIA: Well . . .

RAJAGOPALAN: What can you admit to binge-watching?

BHUWANIA: [laughs] Recently, I saw Marriage Story, which, of course, is also— [crosstalk]

RAJAGOPALAN: Which is really lovely.

BHUWANIA: Lovely movie. In terms of legal drama, I really like the OJ Simpson, the 10-part—

RAJAGOPALAN: Yes, The American Story.

BHUWANIA: The American Story, that’s really brilliant. In my view, probably one of the best TV adaptation of legal process that I have seen. That was quite good. Somehow, I wouldn’t say that Indian TV around legal process really has done justice to what it deserves. But of course, this is changing fast, and hopefully—Court is certainly one that I’d recommend.

RAJAGOPALAN: This is the Marathi movie?

BHUWANIA: Marathi movie, yes.

RAJAGOPALAN: I also strongly recommend Court. Thank you so much. You’ve been very, very generous with your time.

BHUWANIA: Thank you for doing this study.

RAJAGOPALAN: I really enjoyed this conversation.

BHUWANIA: Thank you.

Thanks for listening to Ideas of India. If you enjoy this podcast, please help us grow by sharing with likeminded friends. You can connect with me on Twitter @srajagopalan.

Image credit: Photo of the Supreme Court of India/Wikimedia Commons

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