Thursday, December 04, 2008

Salve at Oxford - Terrorism and (a political analysis of) PILs

Mr Harish Salve, former Solicitor-General, gave a talk last night (03 December 2008) at Exeter College, Oxford. The two themes he discussed are summarised below:

On terrorism:
Mr. Salve noted that this attack has been perceived differently, whether or not it was in fact different (he acknowledged, without accepting or rejecting it, the explanation that this may have something to do with the fact that this time the rich were targets). But he did say that the thing most different about this attack was the reaction of the 'middle classes'. Speaking as a lawyer, he lamented that the most immediate fall-out is likely to be a thorough discrediting of the human rights discourse. He also referred to the intense pressure the government is under to act swiftly and decisively, and worried that this might lead to hasty actions. Whatever the outcome, he believed that the incident has the potential to reshape the geo-political realities of the region, and perhaps the world, and also have very important implications for domestic politics in India.

My Comments -
Arun has referred to Darryl Li's brilliant analysis on this blog, which argued against the dangers of seeing this incident, dastardly as it is, to be unique and transformative. Mr. Salve indicates that whether we like it or not, the preception is definitely that this is India's 9/11. My own hypothesis is that in being a drawn out rather than an instantaneous event, captured live on television and CCTV cameras, must have something to do with our perceptions. Images can be powerful, especially if they linger. Its real parallel with 9/11 might lie in the role playes by these images in shaping our perceptions of the events (remember the planes hitting the twin towers?).

On public interest litigation:
Some of the talk entailed detailed explanations for an international audience, but it did contain some original analysis which might be unfamiliar and will interest us here. Mr. Salve contextualised PILs as a tool used by the Supreme Court to establish its identity as 'a relevant institution of government'. This is the same theme he elaborated upon in his last talk in Oxford, which was reported on this blog.

He proceeded to give a historical account of India's judicial system, with its roots in colonial times. He mentioned anecdotally that low-caste villagers involved in land-disputes would join the British army to become eligible to access the colonial government's courts rather than the local panchayats (and thereby improving their chances of success).

He then traced the foundation of the Indian Supreme Court in the image of the US SC, although the young Court remained fairly conservative till the mid-60s. Mr. Salve offers a very interesting analysis of the right-to-property cases of its early years. He explains that the Court had no problem when the government took on feudal powers, abolition of zamindari being an example. It was mainly when capitalist institutions like banks and industries were interfered with by Mrs. Gandhi that the SC took up the mantle to defend them.

He then outlined the embarrassing role played by the SC during emergency (in ADM, Jabalpur) and the subsequent need to reinvent itself institutionally. He mentioned the part played by judges like Krishna Iyer and Bhagwati through the '80s. This decade saw great strides in cases relating to prisoners and other marginalised sections of society. Although these cases can be seen as disturbing the institutional balance of branches of government, they did not invite any serious opposition from the other branches of government because they left the political elite largely undisturbed.

In the '90s, he said, the PIL jurisprudence came to focus on two broad themes
(1) environmental activism, which has largely continued in the new century.
(2) activism relating to transparency and good governance. Cases like Vineet Narrain took on the political elite which was hitherto undisturbed. This led to a backlash from the political elite we have seen in recent years. The judgment in Association for Democratic Reforms, discussed previously on this blog, is an indication that the SC is prepared to backtrack on this issue.

In response to a question, Mr. Salve said that the SC has consistently refused to apply the same standards of transparency to itself and what we have instead is obscurity on the functioning of the Court itself (he particularly mentioned the unsatisfactory manner of appointment of judges). In response to another question, he said that the presence of someone like Justice Katju has forced rethink on the Court's institutional role and might force the court to put PILs and separation of powers on sounder doctrinal footings.

Disclaimer - I have tried to report honestly, but there might be errors due to miscomprehension on my part. I reserve the right to made suitable modifications if such error is pointed out to me by the speaker or any of the attendees.
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