Prashant Bhushan's talk in Oxford (and legal and political criticisms)

Update: Arvind Narrain's LASSNET paper linked below (and here).

Prashant Bhushan (noted public interest lawyer) presented a carefully-researched paper titled Sacrificing Human Rights And Environmental Rights At The Altar Of “Development” in Oxford on the 14th of March 2009. The full-text of the paper can be accessed here. Citing several cases, the talk concluded as follows:

The trend of recent cases, therefore, suggests that (1) the Court has often subordinated civil liberties to the perceived imperative of state security, particularly in the context of the recent “war on terror”, (2) The Courts’ liberal and expansive pronouncements on socio-economic rights under article 21 have not been matched by a determination to implement those rights, (3) That since the liberalization of the Indian economy, even the courts’ rhetoric on socio-economic rights have been weakening, (4) That very often the Court has itself ordered the violation of those rights, violating in the process even the principles of natural justice, (5) That whenever socio-economic rights of the poor come into conflict with environmental protection, the Court has usually subordinated those rights to environmental protection, (6) That whenever environmental protection comes into conflict with what is perceived by the Court to be “development” or powerful commercial vested interests, environmental protection is usually subordinated at the altar of “development”, or such powerful interests. There are of course exceptional judgements which defy these trends, particularly from High Courts.

One strand of discussion that emerged after the talk (although not necessarily directed towards Bhushan's paper and one with which he sympathised) related to the nature of academic criticism of judgments. The argument was that Indian legal scholarship has usually offered political criticism of judgments, but a 'legal critique' has not always been forthcoming. While the importance of the former cannot be denied, the latter may sometimes be useful (if only strategically, since legal language is one that judges understand better).

The discussion made me think about Arvind Narrain's paper presented at the LASSNET conference where he made a similar point in the context of the queer rights movement. Except those adhering to legal realist schools of thought, few of us will consider the following claims to be legally plausible (whatever our position might be ideologically):

1. That by providing due process norms for determination of who is a foreigner, Parliament had in effect allowed unrestricted immigration, which amounts to external aggression under Article 355--therefore the IMDT Act was unconstitutional.

2. That the Chief Justice of India's Office is not part of the Supreme Court, nor is it a 'public authority' under the RTI Act.

How then do our top lawyers get away by saying things any competent first year undergraduate will know to be nonsense? Don't legal academics need to share some blame for allowing them to get away with such arguments? (Of course there have been exceptions, and the claim that most critique is only political is a huge generalisation. The claim is admittedly anecdotal, and perhaps only relative. Yet, I believe the broader argument stands.)

Legal and political critiques

Some readers have asked me to elaborate upon the distinction between legal and political critiques. Admittedly, the distinction is not always clear. But very broadly (and with many exceptions), I think the effect of an order in a judgment can be criticised on the basis of various political values, while how that result was achieved (i.e. the reasoning in the judgment) may be subject to legal criticism. In effect, the latter claim recognises that interpretation is not an unrestricted exercise--therefore, it believes that the (caricatured) legal realist claim that 'law is what the judge had for breakfast' is wrong. One may disagree on what makes an interpretation illegitimate. Examples include Hart's famous 'vehicle in the park' problem, or Dworkin's hypothetical judge Hercules who must adopt the best normative principles that fit within a given legal history. Whatever may be one's approach to legal interpretation (except Legal Realism), at least some interpretative exercises will be illegitimate. This is an internal legal critique--when the Court says that delay by rule of law procedure for nationality determination encourages 'external aggression' and therefore such procedure is unconstitutional, that is not an interpretation most normative appraoches to law can sustain.

This is only a general explanation. Sometimes law itself may deem certain results to be impermissible--criticising these results can thus be legal as well as political. I must reiterate that I think there is enormous value in political critiques. I just think that there is value in legal critiques as well (strategic as well as normative). In failing to make them, we in fact allow the law to be what the judge had for breakfast.