Sunday, October 28, 2007

Joining the debate on Arundhati Roy’s ‘Scandal in the Palace’

Personal circumstances have prevented me from being active on the blog. However, I have followed the debate over Roy’s Oct 2007 article in Outlook as it has unfolded here. My purpose in this post is to comment on two specific criticisms about Roy’s analysis that have been advanced by Vikram and others on this blog. The full discussion of Roy’s article in previous posts is available, in chronological order, here, here and here.

I have always been struck by the extreme reactions generated by Arundhati Roy’s writings on some of the most significant public issues of our time over the past decade. Even if I haven’t always agreed with the full extent of her argument in her several essays, I have invariably learnt something new from her pieces, and have come to admire her ability to break down often complex issues into clear specifics which are intelligible to audiences beyond those who are already familiar with the issues in question. She displays a skill in focusing on the central issues at stake, and then communicating her own argument in a forthright (often audaciously so) and compelling manner to her audience. By taking on the role of a public intellectual, she runs the risk of making generalizations and oversimplifying issues, but in doing so, she generates interest in the issues she focuses on amongst a much larger audience than would perhaps have come to the issue in the normal course. She is often polemical, and provocative, but those are, to my mind, the standard devices that people who seek to highlight issues adopt. While some of her tone would be objectionable in an academic article, her purposes are clearly beyond those that academics typically aim for, and are justifiable as tools employed to garner public attention on pressing issues.

My sense is that some of the vitriolic reaction is generated in part because people disagree with her politics, or see her as lacking either the standing or qualifications to raise those issues. This is evident in the general tone of the comments she elicits, even from people whom we otherwise regard as sober and scholarly commentators. Recall in this respect, Ramachandra Guha’s blistering attack on her involvement with the Narmada Bachao Andolan in 2000. Guha’s diatribe in turn generated a debate (some of which is collated at this link) and I do not want to revive that here. Back when I first read Guha’s article, the most troubling line for me was in its concluding paragraph, where he asserted that “we would all be better off were she to revert to fiction.” Apart from the illiberal sentiment it conveyed, Guha’s more troubling insinuation was that Roy was unqualified to comment on issues of environmentalism (on which, presumably, only people - such as Guha himself - with an extensive academic and/or practical involvement were entitled to hold forth). We may live in what some have termed an age of specialization, but this argument has dangerous anti-intellectual overtones which must be resisted. By this logic, someone else could well advise Guha to stick to writing, for instance, only about the cricket habits of Victorian Englishmen. Imagine what a loss to public discourse that would result in.

I have dwelt on this point because I see shades of a similar logic being employed in the debate that has ensued on this blog. Vikram and other commentators have explicitly questioned: i) Roy’s understanding of jurisprudence (it is claimed that her comments betray a lack of understanding of the complicated jurisprudential nuances of the idea of the rule of law) and ii) her analysis of the trajectory of the Supreme Court’s record in PIL cases. The argument is that on both these issues, Roy’s lack of legal training may have led her to reach either false or misguided conclusions.

My purpose in this post is to demonstrate that on both these points, Roy’s views are in good company, as legal scholars with impressive credentials (I emphasise this since to me this is basically a debate about Roy’s qualifications to comment on legal issues) have previously made the arguments that Roy raises in her Oct 2007 piece.

i) Roy’s views on PIL

I start with the issue of PIL. In this and in more recent pieces, Roy has argued that while PIL had noble and high-minded beginnings, it has, over the last 15 years or so, taken on a different character. In this new phase, Roy asserts, the judiciary’s own authority to decide public issues has taken centre-stage, displacing the interests of the original beneficiaries of PIL cases. As Dilip recognizes, this is an argument that essentially echoes Prashant Bhushan’s critique of recent trends in PIL cases. There are others (such as Usha Ramanathan) who have offered a similar prognosis, and these are figures who cannot be accused of being ignorant of the full extent of PIL jurisprudence.

No less a figure than Professor Upendra Baxi has, for more than a decade now, been making the argument that PIL in India has undergone a “counter-revolution” that has caused it to move away from its progressive origins. Amongst pieces that are available online is one that is titled “Structural Adjustment of Judicial Activism.” (The title of the piece indicates that Roy is not the only person who is ignorant of the Bank’s internal changes in terminology for its projects and themes). In it, Baxi makes the argument that pressure from international financial institutions may well be one of the factors that has influenced such a “counter-revolution” affecting the nature of the Supreme Court’s PIL jurisprudence. Here are extracts from the piece which predate Roy’s argument in her Oct 2007 outlook piece (the extract is from pages 26-27, while the examples he addresses are at pages 23-26):

In the halcyon days of the birth and growth of the constitutional implosion of forms of social action litigation, I was moved with a degree of justifiable co-authorial pride to say that the Supreme Court of India has at last become the Supreme Court for the Indian impoverished. The five instances that I here mention usher in what may be accurately named as judicial counter-revolution proceeding via the structural adjustment of judicial role, function, and power.

The apex Court no doubt sincerely remains animated by a fine solicitude that promotes and protects in some very complex moves, human rights of the globalizing Indian middle classes. In this, its activist performances remain truly impressive. Granting all this in the fullest measure, it still needs saying that forms of structural adjustment of judicial process and power enormously short-changes the constitutionally worst-off peoples. (Emphasis added).

Another scholar who makes a similar argument is Balakrishnan Rajagopal, who has built up an impressive record of scholarship analyzing the recent jurisprudence of the Supreme Court of India. In a recent piece whose very title echoes Roy’s central argument: “Pro-Human Rights but Anti-Poor?: A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective. The abstract sets out the main argument of the piece:

In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon.

The Rajagopal piece has the added advantage of discussing details of specific cases from the original and more recent phases of PIL which seek to demonstrate the truth of his claims. Studying these cases will also disprove the claim of one of our commentators, “oskaladden” that there is nothing spectacular about the record of the Supreme Court of India which sets it aside from cases decided by courts in the US, Germany or Israel. To my knowledge, there is no court in the world today which has taken on the range of issues that the Indian Supreme Court has, and there are good reasons for such avoidance, which our own court may do well to reflect upon. I have provided references to two scholarly works, but there is a growing body of legal scholarship which documents the trends that Roy adverts to.

ii) Roy’s views on the Rule of Law

The thrust of Roy’s views on the Rule of Law is contained in this extract from her article:

The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they're designed to protect.

Vikram and Aditya Swarup (one of our regular commentators) find this to be evidence of Roy’s lack of familiarity with the vast body of jurisprudential scholarship which discusses the concept of the Rule of Law. While it is true that Roy does not cite the usual suspects who crop up in legal discussions of the rule of law, this does not necessarily mean that her analysis is incorrect.

It is interesting that Roy specifically cites the World Bank’s role in promoting a particular conception of the Rule of Law. While Vikram relies on his personal experience to rebut her views, the fact remains that there is a considerable body of scholarship which supports Roy’s critique. Indeed, the policies of the World Bank and other aid organizations are now the subject of a sub-field of ‘law and development’ studies which focuses, among other things, on the manner in which the World Bank has been promoting legal and judicial reform across the developing world since the 80s. This is done through multi-billion dollar projects that seek to implement a particular conception of the Rule of Law. Scholars who have focused on such projects have noted that the World Bank’s conception of the Rule of Law has very specific components, which do not fully capture the substantive components of conceptions of Rule of Law.

I cite and provide links to two scholarly works that help appreciate the argument that Roy makes in her Outlook piece. In a piece titled “Myth-making in the Rule of Law orthodoxy,” NYU Law Professor Frank Upham argues that the conception of the Rule of Law promoted by the World Bank and other aid organizations in the developing world is inconsistent with conceptions of the Rule of Law that are widely held and implemented within developed nations like the U.S. and Japan. In the piece, Upham provides several illustrations to make good his central claim.

Alvaro Santos’ piece titled “The World Bank’s Uses of the “Rule of Law” Promise in Economic Development” is more directly relevant to Roy’s critique. The article itself is part of a fascinating recent book by a group of leading Law and Development scholars. Santos, who now teaches at Georgetown Law School, first sets out the dominant understandings of the idea of Rule of Law in traditional jurisprudential theory. After examining the views of ancient scholars such as Aristotle, Montesquieu and Locke on the Rule of Law, Santos moves close to our times, and analyses ideas canvassed by A.V. Dicey, and more modern scholars such as Hayek, Joseph Raz and Amartya Sen among others. He concludes as follows:

Scholars writing about the rule of law rely on these and other sources for authority on what the concept means. There is however, little agreement on how the conceptions of these different authors and their positions relate to one another. Some scholars have noticed the ambivalence or vagueness of the term and the multiple ways in which it maybe deployed by different actors for a variety of purposes.

In the rest of the piece, Santos argues that the innate ambiguity of the concept of the Rule of Law has enabled the World Bank to pursue a host of different (often contradictory) objectives in its legal and judicial reform projects over the past two decades. In so doing, the Santos piece, like the Upham piece I cited earlier, bears out the truth of Roy’s assertion that the Rule of Law is a concept that has very little agreed content, and may vary from one context to another. Both Upham and Santos would, I have no doubt, endorse Roy's extracted conclusions about the concept of the Rule of Law.

I hope this overly long post demonstrates that Roy’s critique in the Outlook piece is grounded in (or finds support from) legal scholarship, both domestic and global, on the specific points raised in discussions so far. Whether we find Arundhati Roy’s views on particular issues persuasive or not depends on our own conceptions of politics, and our perception of the issues she focuses upon. I do not, however, see what is erroneous or unsophisticated about Roy’s legal analysis in this piece. Indeed, if one were to focus on her views on contempt of court that she outlines in the main part of her article, one cannot help but admire the succinctness with which she puts forth her argument and criticism.

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