Development, justice and the Constitution

Three judgments by the Supreme Court, in July, demonstrate the significance of social action. They draw important connections between courts, social sciences and social movements; connections that are often forgotten or negated in courts.

Published - July 27, 2011 12:31 am IST

Three judgments by the Supreme Court in the month of July mark a sharp departure from pedantic legalism and point to the possibilities of a transformative constitutionalism that sustains and elaborates the idea of constitutional morality developed in the Naz Foundation judgment of the Delhi High Court in 2009. The three cases are also very different pieces that speak to different realities in similar fashion: Ram Jethmalani v Union of India (SIT); Nandini Sundar and Others v State of Chhattisgarh (SJ); and Delhi Jal Board v National Campaign for Dignity and Rights of Sewerage and Allied Workers (DJB). It might be argued, and rightly too, that radical jurisprudence by the Supreme Court is not a recent phenomenon — it has an older history rooted in struggles for civil and political rights. While that is the genealogy of this jurisprudence, we need yet to celebrate each signpost in the development of deliberative jurisprudence that responds not merely to the manifestations of a case, narrowly construed, but sees the larger socio-political context as an inextricable part of the bare facts, so to speak.

The guarantee of public goods — security, infrastructure for governance, law making and enforcement, provision of material and cultural goods especially for classes that lack the power, privilege and status to secure these for themselves — is state obligation. Neither markets (which cater to self-centred activities of individuals and groups) nor purely private social action can be expected to stand in for the state and provide public goods (SIT, 7). Central to the delineation of the problem in these cases is the opening out of the idea of constitutionalism to include a broader idea of justice that enables the mapping of injustice in all its complexity. Tracing the link between the existence of perennial channels for unaccounted monies abroad and the erosion of developmental goals of the state, the Supreme Court contextualises the need to reign in cash flows and ensure total accountability with reference to the structure of a neo-liberal economy. Gunnar Myrdal's caution about the dangers of a “soft state” that spawns the “unholy nexus between the law maker, the law keeper, and the law breaker” (SIT, 10) is immediately relevant.

“Carried away by the ideology of neo-liberalism, it is entirely possible that the agents of the State entrusted with the task of supervising the economic and social activities may err more on the side of extreme caution, whereby signals of wrongdoing may be ignored even when they are strong. Instances of the powers that be ignoring publicly visible stock market scams, or turning a blind eye to large-scale illegal mining have become all too familiar, and may be readily cited (SIT, 15).”

The framework of justice by this token stretches illimitably beyond the narrow confines of constitutional law and decided cases to the letter and spirit of the constitution.

“Modern constitutionalism posits that no wielder of power should be allowed to claim the right to perpetrate state's violence against anyone, much less its own citizens, unchecked by law, and notions of innate human dignity of every individual (SJ, 3).”

In Chhattisgarh

The court locates the heart of the conflict and repression in Chhattisgarh in the amoral political economy endorsed by the state and the departure of state policy from Nehruvian socialism in favour of a free market economy, the natural corollary of which is “muscular and violent statecraft.” The intimate connections between neo-liberal economic policy and a violently authoritarian state have been demonstrated in one country after another. The routine derogation of fundamental rights and human rights, large-scale displacement and dispossession of primarily indigenous tribal communities is an inseparable part of this process.

Courts have more often than not insulated themselves from philosophical and political frameworks of justice, ploughing the over-trodden, unproductive furrow of strictly applied “constitutional law” instead. Drawing on a wide range of writing — from Conrad's Heart of Darkness to reports prepared at the instance of the Planning Commission — the Salwa Judum judgment puts back into focus the constitutional scheme with socialism and the directive principles of state policy at the centre. It is against this backdrop that the Supreme Court frames the issue of compliance to Articles 14 and 21, and Article 355 with specific reference to the large-scale occupation of schools and hostels by security forces ostensibly to combat maoist forces; the deployment of the “koya commandos” or the salwa judum and the arbitrary use of extreme violence by this militia armed by the state; the arbitrary terms of employment of this tribal workforce that violates constitutional safeguards; and the obstruction of citizen's peace missions by the state. The adverse impact of this entire scenario is directly on the adivasi communities of Chhattisgarh — both as gun-toting SPOs and subjugated villagers.

Sewerage workers

The case of the Delhi Jal Board points to the predicament of sewerage workers in a globalised economy where essential jobs are outsourced by the state, which then refuses to take responsibility for the health or safety of workers, and challenges claims to reparations. The specific questions placed before the Supreme Court by the state authorities concerned the locus standi of the National Campaign for Dignity and Rights of Sewerage and Allied Workers; the appropriation of legislative powers by the high court; the validity of the high court's order of interim compensation to families of workers who had died after inhaling noxious fumes while cleaning manholes. That the state needs judicial intervention (which ironically, it challenges) in order to provide the barest of safeguards and entitlements to the most underprivileged category of workers is cause for concern, throwing as it does, the entire range of constitutional guarantees and obligations to the winds.

While upholding the decision of the Delhi High Court, the Supreme Court importantly for us, asserts that social action litigation is an important part of constitutionalism. In a situation where the implementation of the goals set out in the Preamble to the Constitution has been halting and sporadic over six decades, the court observes, arguments against judicial activism and on judicial overreach have the sole object of tiring out those who espouse the cause of the weak and the poor (DJB, 15). Yet, private social action can only force public accountability — remedies are and must be part of state obligation (as the SIT bench reminds us).

Each of the three cases considered here demonstrate the significance of social action — the campaign against state repression and the Salwa Judum in Chhattisgarh, the nationwide campaign against corruption that began in a sense with the movement for the right to information, and the movement for dignity of workers engaged in hazardous and stigmatised forms of labour. The judgments draw important connections between courts, social sciences and social movements, connections that are often forgotten or negated in courts.

These judgments take a radical view of “development,” thereby addressing not just fundamental rights, but importantly, rendering the Directive Principles justiciable in effect — by resisting a disaggregated reading of the Constitution. At the other end, what the constitutionalism approach to the problem of development accomplishes is the framing of development as a bounded endeavour — and hence of justice as spatially and socially hedged in, to be held together by the state, through clear measures of protection against harm, distribution of good and the realisation of capabilities. These are not responsibilities easily or willingly borne by any government, but are undeniably state responsibility and must be used to discipline governments.

( Kalpana Kannabiran is Director, Council for Social Development, Hyderabad .)

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