Alternative Lawyering in India
Arvind Narrain, Lawrence Liang,
Mathew John and Namita Malhotra
Alternative Law Forum (ALF)
Lawyering in India has seen the creative use of a wide range of public interest law practices by social movements, public interest groups, students, teachers, lawyers, activists and other individuals. Opportunities for sharing and critically evaluating the immense learning and experience gathered from these legal engagements, however, have been limited. It was in this context that Alternative Law Forum (ALF) approached the Center for International Environment Law (CIEL) for assistance to conduct a seminar on social justice or alternative lawyering traditions in India aiming to bring together some of the leading human rights law practitioners from across the country.
Inter alia the conference had the following objectives.
(i) Collectively address the local confinement of rich traditions of public interest lawyering in India,
(ii) Foreground the alternative modes by which lawyering could possibly take place,
(iii) Address the serious limitations of court-based strategies in dealing with lawless states acting with absolute impunity,
(iv) Explore the possibilities of practicing alternative law in ways that address the foundational violence and injustice of law,
(v) Begin building a strongly networked community of alternative law practitioners, and
(vi) Build links with student communities to sustain the futures of alternative lawyering.
Keywords: Lawyering, Public Interest Groups, Activists, Social Justice, Alternative, Human Rights
This is a conference report published on 19 December 2001.
Citation: Narrain A et al, 'Conference Report: Alternative Lawyering in India', Law, Social Justice & Global Development Journal (LGD), 2001 (2), <http://elj.warwick.ac.uk/global/issue/2001-2/alf.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_2/alf/>
Given our contemporary milieu, the conference was primarily focussed at engaging with the traditions of alternative lawyering in the context of a rapidly globalising world. The conference commenced by tracing the roots of alternative lawyering in India to the finest traditions of leftist and socialist practice. These points of origin, it was noted, were rapidly being transformed by what Upendra Baxi terms Deregulation, Denationalisation and Disinvestment. It was within this conceptual terrain that the specific modes of alternative lawyering were discussed, namely environmental lawyering, civil liberties lawyering, feminist lawyering, queer rights lawyering, community lawyering, labour rights lawyering and lawyering for public interests in private law. At the end of two days of engaged discussion the conference attempted to build an alternative lawyering community, which was vibrant diverse and respectful of different strategies, ideologies and visions for the future. This report is an account of the proceedings of, and debates generated by, the seminar.
Three speakers, Babu Matthew (Professor of law National Law School, Bangalore), Mr Kannabiran (National President Peoples Union for Civil Liberties) and Ms Janaki Nair (Historian, Bangalore), addressed the first session. The three speakers highlighted the importance of rooting in a political economy approach, in practising insurgent lawyering in every forum and in paying a close heed to the subaltern voice and how it resists law.
Babu Matthew addressed the question of the rooting and relevance of alternative lawyering. In his opinion, alternative lawyering only made sense if one addressed the totality of circumstances. According to him the present scenario of globalisation and the increasing marginalisation of poorer sections of the economy combined with the emerging intensity of resistance to power from Seattle to Genoa provided the socio-political context which alternative lawyering had to respond to.
Mr Kannabiran addressed the issue of the changing nature of the Indian State. The State, to which independent India was heir, experienced continuity in legislative history. The repressive legislation, which was meant to repress Indian nationalist expression, continued in postcolonial India. This history of repression reached its pinnacle in the national emergency. Today in the days of globalisation, the authoritarianism of the state has been reinforced. The state has armed itself with greater powers to trample on the civil rights of its citizens through the organised crime Acts in various states. When impunity is the order of the day, he exhorted that a resistance has to be built up through a practise of insurgent lawyering. One needs according to him to build a collective of at least 30 lawyers in a state and establish a hegemony over the existing legal structures. He also stressed the need to engage the institutions, which deliver rule of law to constantly fight the battle against impunity.
Ms Janaki Nair, through a patient historical study taking concrete examples showed that a close attention to the violence of law permits some glimpses into subaltern activity. She showed that peasants are actually subjects of their own history. Janaki's presentation detailed the difference between how lawyering on behalf of a cause (female infanticide) might actually be a castiest in its effects and hence one needed to be sensitive to a lot more nuances before making interventions.
The first session raised the issue of whether one needed to be an alternative lawyer or one could still be a mainstream lawyer who did cases in specific areas. The question was answered strongly by the assertion that law is part of the dominant hegemonic order and people are at the margins of the order. As lawyers we should try and not only win cases for our clients, but also intervene with the aim of creating a counter- hegemony. The other issues raised, were the ways in which courts could be engaged as a site of struggle in the days of globalisation. Prashant Bhushan strongly articulated that the process of globalisation in the last one decade had completely destroyed the ability of countries to intervene in the economy. WTO agreements, World Bank IMF agreements, double taxation treaties provided the new legal framework for decision-making. This, it was argued, has had its impact on judicial decision making in the last 10 years. Courts are reluctant to intervene in contexts where the implications are international. In such a context, where courts are not important decision makers, effective lawyering might mean that other forums might have to be used such as the media, and other forums like the NHRC, World Bank and WTO Dispute Settlement mechanisms. However it was clarified that this did not mean that one vacated the courts as a site of struggle as the struggle had to be carried out in every forum.
The opening session also threw up the issue of how to establish a community of alternative lawyers, with the links between students and present and past generations of alternative lawyers being established. The issue of how to establish alternative lawyering as a viable future for the younger generation was debated and the solution of having a mentor in the older generation was proposed. It was also noted that alternative lawyering has to be based not merely on using present structures but on constructing alternative institutional structures as well. The example of quasi-judicial structures such as the Disabilities Cell established under the Persons with Disabilities Act and the effective usage of the same in Karnataka was cited. Another strategy, which was used with a great deal of success by alternative lawyers, was the legal empowerment approach. Since a lot of harassment/violation of the rights of dalits was at the level of the police themselves, once the police realised that dalits knew their rights the levels of harassment came down. Alternative lawyers also need to push law reform, including reform of the judiciary. There needs to be reservation in the judiciary as well so that caste discrimination can be effectively tackled.
The speakers in this session were Prashant Bushan (Advocate, New Delhi) and Leo Saldhana (Co-ordinator Environment Support Group, Bangalore). Prashant Bushan highlighted the sheer difficulty of doing environmental law, which were pro people in the last ten years. It was quite clear that the courts had strong class bias, which influenced their decision-making. The clearest example of the same is the Narmada judgement. However this judicial bias does not mean that one gives up the struggle as instead of devising new means of taking up the battle. It was stressed that other forums such as the National Human Rights Commission (NHRC), and international forums like the Human Rights Committee and the ILO have to be used as well.
Leo Saldhana emphasised that lawyering meant looking at various other forums beside the court as well. He illustrated by referring to struggles such as the Bangalore Mysore Infrastructure how one could work at various levels to slow down decision-making. The Ministry of Environment and Forests was approached to do an EIA as mandated by law and though it was not an effective process it did slow down decision-making. He also emphasised how the in battles of such proportions involving the displacement of over 5,00,000 people, the struggle had to be global and one had to link up with even shareholder interests in the truant companies.
The other valuable points which emerged through the discussion was the emerging trend of anti environmental activists filing cases so that the case can not be re litigated. The purpose of alternative lawyering was also seen as the need to shake the logic of the state publicly so as to constrict the space for arbitrary decision-making at all levels including that of the judiciary.
The speakers in this session were Mr. Kannabiran and Dr. Suresh (Advocate, Chennai). Mr Kannabiran noted that criminal justice system indicated the fairness of society. However as a lawyer working on civil liberties was more difficult than being a part of the militants as one was taking a position where the main loyalty was not to a movement but to the idea of civil liberties.
Civil liberties lawyering was presented as once being located in the context of an increasingly authoritarian state where encounter deaths were in fact increasing and becoming a part of the administrative tactics. The strategies for civil liberties lawyering that were discussed included going to the scene of the crime and gathering the facts correctly and releasing to the press in the form of press releases and fact-finding reports. That apart, it also included using the court as an arena for advancing civil liberties arguments incessantly, so that the judiciary is forced to understand the concerns of civil libertarians.
Dr. Suresh noted that there were three broad categories of civil liberties work such as addressing the day-to-day abuse of the law, politics behind such violence as well as prison/custodial violence. In each of these areas alternative lawyers needed to legally network with other lawyers, as well as with other professionals such as behavioural scientists. Suresh emphasised the need for strong institutions and other forms of co-operation, which, could allow for the sharing of what is still our meagre resources both at the level of personnel as well as financial resource. He illustrated the strength of co-operative action through mentioning the manner in which he conducted a case in Chattisgargh with constant everyday research help and support from three other cities.
The speakers in this session were Vasudha (Advocate, Hyderabad), Flavia Agnes (Advocate, Mumbai) and Arvind Narrain (Alternative Law Forum).
Vasudha brilliantly narrated her experiences as a feminist lawyer and the ways and means her feminism was invoked to help allegedly women in distress. She spoke primarily of her work with women prisoners. Unable to directly engage with the legal system in a linear mode she emphasised the importance of redefining her practice through active engagement in activism, research besides conventional legal practice. In this frame of redefining the profession, she mentioned the centrality of the jail to her existence in the last five years, a centrality, which allowed her to see in detail the modes in which justice is dispensed by the criminal justice system. That is, the framing of women's criminality in terms of her sexuality and the women's negotiations with the police, courts, lawyers and the family/community. Through her cases with women convicts she also stressed her realisation of the importance of documenting women's experiences and contrasting it with legal narratives.
Through her presentation she attempted to place together the woman's narratives and the legal narratives of justice so as to examine how the justice system strategically picks out facts and circumstances to dispense its brand of justice. What are the facts that law picks out to stitch it into the grand equation of `crime' and `justice'? Dispensing of justice she mentioned does not take place merely within the rules and procedures set out in the codes but is strategically determined by the larger political codes of caste, class and gender. It is critical according to her to examine other negotiations that take place right beneath/alongside the rules and procedures of the criminal justice system.
Flavia Agnes discussed the paradoxical relationship between feminist lawyering and human rights lawyering, and the marginal space that feminist lawyering occupies in the courtroom. She pointed out the distance between the actual experience of the woman involved in a legal case, and the legal processes taking place. Though they affect her, it seems like an unreal experience, and like they are about someone else, even though the impact will be played out in the woman's life.
Flavia Agnes described the history of women's movements and the conflicts and tensions with the human rights movement. The confluence took place with the Mathura rape judgement, which was a case of custodial rape. Rape was then not a violation of woman's body and space, but a state atrocity. When the State is the oppressor it seems women's rights movements and human rights movements can join hands.
Mathura rape judgement led to a campaign for women's rights and feminist movement, which concerned itself mostly with violations that were intimate – related to the body. Women's groups were then told to go away from courts and to approach the legislature. Looking at the history of women's movements it is obvious that a number of women-oriented laws were enacted post-Mathura. After a decade of lobbying for law reform there are many achievements that the women's movement can be proud of. The women's movement subsequently veered away from its initial confluence with human rights movements and the perception of rape as a state atrocity, to a situation where the State became the benevolent patriarch – dishing out law reforms at a remarkable pace, from rape to other women related legislations.
She pointed out the fallacy that related state reform to a proactive engagement with women's issues by the State. She mentioned that the role of procedure, police, doctors, public prosecutors etc. has not been addressed at all even though the eighties was popularly seen to be the decade of legislation.
Flavia also expressed concern about the economies that sustained work related to Gender were being radically reorganised. She mentioned the NGO-isation of the women's movement with large numbers of important work on gender related issues being done by state or international funding. With the rather short attention spans that these forms of funding, especially international funding, have for continued work in specific areas she expressed worries of the manner in which work on gender could be carried forward.
Arvind noted that alternative lawyering for queer rights had unique challenges and difficulties based on the specific problems, which were faced by the queer community. The problems faced by the community were, lack of social acceptance, lack of visibility, the 'silencing ' of the community and persistent violation of rights of the queer community. In this context how can lawyering address these issues so as to bring about real changes for the queer community? In the context of the queer community lawyering would include at least the following major modes each of which would have to negotiate the issues raised above. That is, court room based lawyering, interventions at the level of the police station, interventions in other forums like the NHRC, campaign for the reform of homophobic laws, building up a human rights history of violations by state and civil society, linking up to the global discourse on queer rights and articulating a queer jurisprudence.
The speakers in the session were Pradip Prabhu (Kashtakari Sanghatana, Dahanu, Mumbai) and Nupur.(Centre for Social Justice, Ahmedabad) Pradip started the session by introducing himself as a movement lawyer, which he defined as a lawyer who was fundamentally accountable to the movement and not to the legal profession. This meant making the judiciary accountable to the movement and this kind of accountability was achieved by openly demonstrating against the judgements of the court.
This critical attitude to the judiciary included an understanding of lawyering as a part of the problem and not a part of the solution. This meant that the notion of legality had to be redefined and understood differently. Illegalities prohibiting survival had to be converted into the 'right to survival'. Thus his brand of lawyering was one that forced the legal system was to function/not function by the pressure of the movement to ensure that the rights of the poor were safeguarded. Pradip characterised their use of law as offensive and defensive. Most often the use of law is as a defensive weapon to protect people and preserve gains of the struggle on one hand, and approaching the courts as an offensive weapon to expand rights gained through struggle on the other.
In the case of the adivasis the courts have in some cases lent a sympathetic ear. This extends to lower courts that have ordered an immediate stay on felling of trees and the withdrawal of platoon that was meant to be used to terrorise a small village by firing on them (Judge Kolse-Patil of Bombay High Court). At the Supreme Court level in 1986 a writ petition was admitted to ensure the security of livelihood to 6500 tribal families cultivating lands in the Reserve Forest. The issue here was the establishment of evidence regarding tribal claims to the lands that were to be given to them on the strength of an earlier government resolution. The primary evidence generally had to be that of an official or of a land deed, neither of which, it was possible for the tribals to give, especially since officials were unlikely to come to remote areas to determine the extent of encroachments. Since the officials do not turn up, the tribals are unable to stake a claim to the land. The petition to the Supreme Court stated that " It is hardly appreciated that with the acceptance of this premise the tribal stands condemned for the acts of omission or of commission of Government officials." The Government resolution, which was at the centre of this dispute also allowed for the advancing of "other relevant evidence". Through some tough lawyering, the Sanghatana was able to introduce the evidence of village leaders, which when in tandem with opinion of Inquiry Officer could over-rule the documentary evidence of Forestry Department. The interim order stated that even when the claim is not supported by documents the competent authority has to make an appropriate inquiry and receive evidence, and then accept the claim. By this order the livelihood of thousands of tribals was secured.
The aim of this lawyering was to carve out a space where the tribals and adivasis could lead their way of life in peace. As stated by Pradip Prabhu, " Lawyering in the Kashtakari Sanghatana has tried to use legal spaces wherever they exist and to try to create these spaces wherever possible, but lawyering has tried to remain responsive to the needs of the movement and more importantly subservient to it's politics, sometimes in contravention with 'interim stay orders' with varying degrees of success". This mode of alternate lawyering has involved stopping and preventing the bailiff from being able to execute the court orders, and this has led to a tremendous reduction in the number of landlord cases in the area. No landlord wants to go through a lengthy court process, knowing that the court is unable to enter that region and secure his or her rights. In one case of land-dispute, a maximum prison term for contempt was slapped on a tribal – Raghya Thakyra because of what he said in court to the judge, which indicated disrespect for the court and questioned what possible role could they play in their lives. He said that the land did not belong to the Court but to his ancestors and the court had no power to take it away. After serving his prison term Raghya returned to cultivate his lands, and his landlord had by then lost interest in the possibility of claiming the land.
Tribal principles allow for a vision of justice that would be concomitant with the community than with the perception of the State as to what is right or wrong. In one of the villages where the Sanghantna worked, a boy raped a woman and went to prison for some time. After some time, because of the age of the boy, and because they felt that he had already suffered enough, the community decided to forgive him. The State however does not allow for the forgiving of a criminal offence by the community. But the community's tenets are the harmony of the community, which would not be got by letting the boy go to prison and get embittered. Once the community had decided they got their version of justice when the case was posted at the nearby court, and the witnesses turned hostile. On the grounds of lack of evidence the boy was allowed to return to the community.
Nupur spoke about the kind of work being done by Centre for Social Justice. The four key strategies adopted by CSJ were legal awareness, legal services, strengthening of law reform efforts and activating alternative dispute resolution mechanisms. The work of the Centre converged around districts in Gujarat with an active presence in district level courts. This active presence has succeeded in changing the complexion and nature of the district level courts where CSJ is working. Nupur also felt that one needed to communicate the experience at the grass root level at a larger forum so that such experiences could be multiplied.
In the discussion complex issues of community based lawyering were raised including how such activists deal with the gender related discrimination as the community is often complicit in such discrimination and how does one relate to movements which themselves do not respect human rights.
The speakers in thus session were Gayatri Singh (Advocate, Mumbai), Gautam Mody, (Centre for Worker's Management) and Solomon Benjamin (TIDE, Bangalore). This session was intended to deal with the new challenges in labour lawyering by addressing issues of organised labour, unorganised labour as well as corporate structure and corporate governance. Gayatri Singh spoke about her own movement from being a labour activist to a lawyer. She articulated how it was becoming increasingly difficult to ensure that the law was implemented in the days of globalisation. She also noted that it was important for labour lawyers to use corporate laws from the viewpoint of labour.
Solomon Benjamin focused on the role of the informal economy through his work with the informal economy both in Bangalore and in Delhi. While wondering what it might be to lawyer for the informal economy he spoke the non-state legalities that regulated vibrant modes of production in the areas that he was working in. He stressed the need to integrate the vanguards and the rearguards of globalisation so that the processes of growth could be more evenly distributed. The process of lawyering according to him would require a greater sensitivity to local systems of production and dispute resolution, which were often conducted outside of the pale of state law.
Corporate governance has been a buzzword in recent times especially in light of the various scams that have shaken the Indian capital markets (Ketan Parekh, UTI etc). Gautam Mody, an economist with the Center for Workers Management and author of one of the few books on corporate governance in India spoke on the issue of corporate governance attempting to provide a historical perspective as well as critiquing the ongoing efforts at implementing corporate governance in India.
Gautam started with debunking the myth that corporate governance is a relatively new phenomenon, and citing the Bose committee recommendations of 1963, Mody felt that current attempts at implementing modes of corporate governance were akin to passing off old win new bottles. Analysing the development of the capital market Mody interestingly observed that a minimal percentage of a company's capital actually arose form the capital market. This is especially true of the speculative form of capital market investment that has become so popular in the recent past.
The history of corporate governance as we now know it emerged from the Cadbury Code, drafted by Adrian Cadbury and adopted by the London Stock Exchange. In the Indian context, there is a similar report prepared by Kumarmangalam Birla. This code has now been made a part of the listing agreements entered into between companies and stock exchanges. Gautam Mody then traced the history of the role of directors in companies and stated that directors were a recent development in the history of corporations. According to him, the largest focus of corporate governance theories seems to focus on the fiduciary role of directors in companies, especially in light of the necessity of disclosure norms, accounting standards etc. This according to Mody is a minor critique, which does not question certain basic premises which might themselves be the problem, for instance a critique of the form of ownership which then determines the form of legal regulation that is made applicable. Here Gautam makes a distinction between the bank-based model and the market-based model, with relative defects in both the systems. While the bank based system, prevalent in a pre liberalisation era was marked by crony capitalism, the market-based system is based not so much on the real economy as it is by pension fund backed speculative capitalism. According to Gautam Mody, there is a serious defect in the manner in which the capital market is run today as it clearly overshadows an real activities in the real economy, with the capital market determining the relative health of a company as opposed to its actual functioning and in this context, any attempt by corporate governance to regulate forms of capital market behaviour would only miss the larger picture which requires structural reform of a larger nature.
This session was facilitated by Colin Gonsalves (Advocate, Mumbai), Babu, Mihir (Advocate, Mumbai) and Flavia. The concluding session tried to set out concrete ways of taking the learning of the conference forward. The aim of this session was to try and see if we could come to a programmatic agenda that would allow for a far more concerted attempt at co-operating on issues in the future.
Babu noted the need for alternative lawyers to come together in the days of globalisation in spite of differences in ideology and styles of functioning. It was agreed among the participants that co-operation among persons in the group would have to be an informal level and not one that could be institutionally formalised. Keeping in mind the diverse positions and ideologies that could come into serious conflict through a more rigorously integrated group it was agreed that informal co-operation was the best mode for the immediate future.
Importantly Flavia felt that after Panchgini, the alternative lawyering conference was an important step in bringing alternative lawyers together and we needed to continue such meetings to build linkages between the alternative lawyering community. It was agreed that this kind of meeting would happen on an annual basis with different groups across the country taking up responsibility for the hosting of the conference. It was felt that the small beginnings in networking that the conference allowed were invaluable and needed to be strengthened through similar meetings in the future. It was also mooted that regional and area specific efforts on similar lines also be organised.
Lawrence suggested the practical step of setting up an email group so that people could communicate on law related matters nationally. The email group has since been created and has been functioning reasonably well for the past three weeks. Importantly many persons at the seminar suggested that the proceedings of the seminar be collated and put together as a book. This was unanimously agreed to as the publics that we managed to reach out to at this meeting was rather limited and therefore the proceeds of the meeting it was felt needed to be shared with as large a group of persons as possible. There were also many persons who could not make it for the seminar but who were in many ways associated with the idea of the conference. It was agreed that this broader group should also be invited to write and contribute to what could be the first major reflections on what could be the futures of alternative lawyering in India.
DAY ONE – September 8, 2001
Introduction/Objectives – Alternative Law Forum
Lawyering in the Public Interest – Babu Mathew
Writing legal histories: Recovering the subaltern in law – Janaki Nair
The Agenda for Alternative Lawyering - Kannabiran
'Cause Lawyering': Critical Enquiries
Civil Rights Lawyering: Suresh/K.G. Kannabiran/
Feminist Lawyering: Flavia Agnes/Vasudha(Anveshi)/Arvind Narrain (Alternative Law Forum)
Environmental and Human Rights Law: Leo Saldhana/ Prashant Bushan
DAY TWO – September 9, 2001
Accounts of lawyering in and for the community/Researching and theorizing Alternative Lawyering
Pradip Prabhu – Dahanu Experiences
Nupur – Centre - for Social Justice
Labour Lawyering: - Gayatri Singh/Solomon Benjamin
Private Law issues of Public Interest: - Gautam Mody
Strategies for Future coordinated action
© Alternative Law Forum