Quick Take: Policy as the new law

Is policy the new law? The quick take here pursues this question.

The observation appears to hold ground considering the manner in which important decisions are made and implemented by governments worldwide, although this applies more to democracies than other forms of political systems. There is an increasing preference to policy making over law making. This shift in a way marks a weakening of constitutionalism as the traditionalists knew it. The shift was subtle to begin with in post World War – II era and became a rapid transformation after the emergence of structural reforms and new public management.  Newly independent countries  either accepted the structural reforms which basically made countries change their governance style via policy than law making or had to forego development aid and loans. The preference for policy making in such a context is evident.

The policy route to change is probably due to a shorter path to implementing a new order and significantly less public resistance and scrutiny that policy making involves. Making laws is slower and fraught with public scrutiny and interference. Policy making tends to happen in a government space which is deeply embedded and is far higher in reach and access to citizenry in comparison to law making. This procedural and structural advantage is likely cause for the safety and ease that policy making provides to governments.

Moreover, the legitimacy to such a style of governance (by policy making) is given by global pressures of trade, globalized economic processes and inter-dependencies. Domestically, it is the political demands which make governments opt for policy route, as this delivers well to satisfy popular demands. Policy is a faster and comparatively obstacle free solution of a modern democracy’s problems. Take for instance the regulation that defines use of coastal zones in India. As a policy it caters to the demands of the market as well as the state itself. This also gets legitimized by the fact that the guideline document is issued by the legislature itself (in this case Ministry of Environment, Forests and Climate Change).

It is likely that the most important precedent for greater preference of policy over law was set by the economic reforms of 1991. While that yielded on the intended outcome of jump-starting economic growth, it was also in a way a signal to subversion of democratic process. Most certainly, it was the beginning of end of constitutionalism as a cornerstone. Policy process is seen to be at odds with constitutional values at times. However, contemporary policy process is a mix of desirable and undesirable consequences. Economic policy which led to liberalization of Indian economy has been regarded as a desirable change whereas environmental policies have largely failed in being inclusive and has consistently been violent in its impact on marginalized groups.

With emergence of regulatory governance we see that preference of policy route to governance has increased further. Independent regulatory authorities which have near complete autonomy over controlling key government sectors have achieved success through policy making. The RBI and TRAI are fitting examples of the trend. With mainstreaming of regulatory governance as a practice, policy’s position as the new law will only strengthen.

The space (policy and law and things in-between) is getting complicated to understand, navigate through and study. We are likely to see more policy think-tanks setting up and public policy programs being offered by top institutions in India. While this take is about governments’ preference to policy making as a procedural ease, a much broader take on public policy and its relevance was pursued by Shiv Visvanathan  in this editorial.

 

 

Sexual Harassment & Appropriate Sexual Behaviour: An alternative view (Part 1/2)

sex_harrassment_comic_1

This post is inspired from a paranoia-laced militant behaviour that I witnessed last week, of a Professor (in a law school) as she spoke about the law school’s sexual harassment code, repeatedly emphasizing how robust the school’s code is. And that it goes “beyond” the Supreme Court of India’s Vishaka Guidelines on safety of women at work place in India. It was tiring and mildly discomforting as I imagined implications of such a paranoid behaviour regarding sexual harassment (and by implication “appropriate sexual behaviour” in the society). It read polemical at some places, but helped me in gathering my thoughts on this issue. 

The intellectual and practical space that the three terms – sex, gender and sexual harassment occupy in the contemporary society is marked with confusion and a collective paranoia about safety of women, in particular. The point about paranoia is made with caution here. It is an impressionistic remark based on the reading of newspapers and other media in the span of last two years. Any discussion on sexual harassment inevitably reduces down to the actions, behaviour and treatment meted out to women, by men. Sexual harassment is steeped into the notion of “men are treating women” in unwelcome, undignified and oppressive ways. The implication of such a default and often combative position is very likely to be against the interest of creating a safe working environment for everyone (men, women and LGBT individuals). Such a bias – that men are the perpetrators and that the burden of change of perception and behaviour lies upon the men, to effect a safe and equal environment for all to live and work in. This article questions this notion.

It is in order, then, that one begins with identifying the trajectories of connotation and meaning that these terms – sex, gender and sexual harassment have taken to arrive their use and meaning in the contemporary society.  Then, legal articulation of sexual harassment is discussed from the perspective of Indian society. And finally, we examine if the current landscape of legal, social and cultural movements in creating a safe working environment must be accepted in its current form or are there spaces that need reorganization and perhaps a rethink.

Trajectories of use and meaning

Sex – the noun form “sex” is first used in late 14th century to mean “males or females collectively” from the latin word “sexus”[1]. Its meaning “quality of being male or female” is first recorded in 1520s, though the source remains uncertain. In the later centuries (19th and 20th) “sex” is used as a signifier of biological and apparent differences between the two occurring forms of human beings – male and female. The physical and morphological features that differentiate between the two types of human form were the basis for the two categories of male and female. By the late 20th century we see many works in human behaviour, anthropology and sociology emerging which speak of the behavioural aspects of a males and females.

Gender – With its proximal meaning with Latin “sexus”, “gender” in noun form derives from Old French in the 14th century to mean “kind, sort or class”[2]. With sex acquiring an erotic connotation, gender came in effective use to signify “sex of a human being”. This is where the interchangeable use of gender and sex begins (as seen in English language), though in feminist writings later on, sex and gender are used with clear distinction – of meaning biological attributes and social attributes respectively. By the 21st century, mainstream sociology, psychology and anthropology makes the meaning of sex and gender (as biological attributes and social, acquired, performed attributes, respectively) commonplace.

Sexual harassment – This term is of the most recent origin among the three. And perhaps the most variedly construed as well as interpreted. It must be acknowledged that sexual harassment is often of subjective nature wherein the individual who has been subjected to such treatment decides the nature of it.  This presents obvious challenges for the law to determine or establish harassment and violation of an individual’s self.

The emergence of “sexual harassment” as a term lies in work of women activists in the US in 1970s when they began speaking of the harassment and unfair treatment, of sexual nature, at their workplaces. It is instructive to read this passage about the origin of the term –

“Eight of us were sitting in an office … brainstorming about what we were going to write on posters for our speak-out. We were referring to it as ‘sexual intimidation,’ ‘sexual coercion,’ ‘sexual exploitation on the job.’ None of those names seemed quite right. We wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with ‘harassment.’ ‘Sexual harassment!’ Instantly we agreed. That’s what it was.[3]

Prominent activists and academicians along with women’s rights organizations brought sexual harassment to public attention in the successive years and rallied for changes in work place environment as well as demanded a process of redressal.

In later works, particularly of Catherine MacKinnon, sexual harassment is interpreted as a form of sex discrimination under the Civil Rights Act, 1964. MacKinnon’s paper “Sexual Harassment of Working Women” becomes a seminal work in understanding of sexual harassment and its interpretation as a form of sex discrimination. MacKinnon notes that that men’s victimization of women “is sufficiently pervasive in American society as to be nearly invisible.[4]

Further, by the time of trial of the case Alexander vs. Yale, MacKinnon’s arguments on sexual harassment and the existing law on civil rights had taken shape of a legal theory. This has been a turning point in the US law as well as the Indian law relating to protection of women against sexual harassment at work place.

It is remarkable that MacKinnon’s work embraces “a philosophy of lawyering that proceeds from individual narratives to legal principle. To advance her conception of equality, she has made women’s experience speak to legal theory.” [5] This approach, as is seen in later years until present, has been at the heart of effecting a regime of strict and perhaps stricter laws against sexual harassment and protection of women at work place.

[1] Online Etymology Disctionary

[2] ibid

[3] Brownmiller, Susan. In Our Time: Memoir of a Revolution.

[4] Uggen, Christopher and Blackstone, Amy. Sexual Harassment as a Gendered Expression of Power. American Sociological Review, Vol 69. N0. 1 (Feb, 2004), pp. 64-92

[5] Dinner, Deborah. A Firebrand Flickers. Legal Affairs Magazine. March-April, 2006

From APU Conference 2013 : On right to welfare

APU Conference 2013. Right to Welfare: Education, Food and Work, Bangalore

APU Conference 2013. Right to Welfare: Education, Food and Work, Bangalore

This morning we are at APU’s Conference 2013 on Right to Welfare: Education, Food and Work. The focus seems firmly set on India and here is the list of papers. My colleague and I find the conference note to be high on theoretical quotient with respect to thinking on institutional and legal fronts – about what welfare means in India and its delivery. During the day we hear people working in social security, education, poverty, food, work and a variety of interdisciplinary areas in development like rights based approach to welfare, structural violence and welfare etc.

Besides the range being a little too expansive, we find that it might well be one of the few times in a year that we sit in conferences understanding, debating and learning about new ways of thinking and conceptualization of problems that we see in our work with non-profits and small businesses in the development sector. We experience the issues of equity, access and rights but seldom get to effect changes to remedy the imbalance. Or at times we have not even known how to approach serious issues such as these. The themes –

I. Law and development in India

II. Statutory rights-based approach to welfare

III. Rights and Obligations

Of these we look forward to interesting research on structural violence and welfare by Akhil Gupta, Social Citizenship in India by Niraja Jayal and on India’s new rights agenda by Sanjay Ruparelia.

The conference opened with two fairly accurate observations from Anurag of APU, who trawls the Indian hinterland looking at changes, emerging practices and learning from them to devise effective social action –

1. That there has been a retreat of welfare in India

2.  That there is a lack of engagement between the intellectuals and people on the ground. And  that this is beginning to be a problem .

For us as practitioners, this might yield interesting ways to look at the contests of rights, access and equity and associated problems that we see in out work. And how these could be addressed by businesses or perhaps by our work in data analysis and documentation. If it does yield interesting insights, be sure to find it here.

 

Alernative Dispute Resolution & Legal System Reform in India

This is the summer of dreaming dangerously (yes, Zizek too is in the summer reading list). I have been trying to pack in three different projects in this summer plus a travel in the subcontinent. Here goes a brief on the first internship at the Bangalore Mediation Center in Bangalore on mediation as a method of alternative dispute resolution in India’s legal system reform. 

 

This summer I work with a team on a project to study mediation as an alternative dispute resolution method. ADR is looked upon in the legal fraternity as a way ahead in achieving legal system reform in India. There is a tremendous backlog of pending cases in the Indian courts across states and in the Supreme Court of India. Estimates suggest that if the number of cases pending in the courts are continued to be tried in the same way as now then it would take up to 340 years to solve all of them. That by any means is a tough situation in a society. Therefore, alternatives are being considered. One stream of thought suggests that what is to be done is clearly known – that the legal system faces capacity and resources issues and therefore open up more courts and modernize the courts to be able to handle such a heavy case load. The other approach however suggests that we must look at alternatives to the process of dispute resolution itself. Why is it necessary that every case must be adjudicated i.e tried in a court of law where a judgment is handed over to the parties and they live with it? An alternative approach can be to – mediation, conciliation, arbitration and counseling. These means are different from a trial in the way that it doesn’t involve a judgment of what is right or wrong (primarily) and instead focuses on what are the disputing parties’ interests and how to achieve a state where both the parties’ interests are met by negotiation. The neutralizing communication skills and powerful bargaining strategies of facilitated negotiation can strengthen the system’s capacity to bring justice to the society, as Chodosh suggests.

ADR is not new to India. It existed as a part of the Arbitration Act of 1940. Arbitration and Conciliation Act, 1996 and the National Legal Service Authority Act, 1987 (under which the Lok Adalats were constituted) are provisions which offer alternatives to a regular trial in court. Also, Section 89 of the Code of Civil Procedure provides for Mediation as an Alternative Dispute Resolution mechanism in India. However, with the increasing pendency of cases there is an increasing thrust on ADR as the legal processes in India proceed at a very slow pace. In 2007, High Court of Karnataka set up Bangalore Mediation Center (BMC) to mediate cases that would be referred to it from various courts in the state. The center is overseen by a director, a coordinator and a team of 82 trained mediators who are all practicing lawyers. BMC is widely perceived as a successful initiative because of the high number of cases it has mediated as well as for its high settlement rate. It mediated over 18,000 cases in a five year period since 2007 with a success rate of about 64%.

We examine the case data from BMC for general patterns that could suggest trends in using mediation as an ADR method. The exercise also serves as an exercise in testing how valid is BMC’s claim about its success in mediation of cases. We look for the type of cases mediated, success rates, time taken for the cases to be solved and what kind of cases are more likely to get resolved through mediation. For instance, family disputes have a higher tendency of resolution by mediation than cases of criminal nature.

What interests me in this study is that I come to this field from a non-legal background. I do not have training in law except a semester long course in law and governance, which served as an orientation into reading the law, understanding it and gaining a proficiency which can help in working in development sector. The dataset from BMC therefore looks interesting, for the associations and relationships that I figure between the variables are not seen the same way by the others with a law degree.

Over the next few weeks I sit as an observer in the mediation sessions and closely watch the process where a mediator is hearing a case between two parties at the BMC. The mediation sessions are observed to identify interests of both the parties. What kind of motivations do they hold and how does the mediator figure these out. The concerns, goals, priorities and means through which a resolution is achieved are of critical importance in understanding mediation as a process. And then how does all of these differ across various types of cases like matrimonial cases, family disputes etc. Observe interests, as the coordinator of BMC suggests. The enthusiasm towards mediation is high at BMC. One lawyer even suggests that “this is a silent revolution going on in the Indian courts”.

A good social (ethnographic?) account of the process and a identifying patterns (related to method, type etc) in mediation of cases would be a more likely product of this study.

Construction Workers and Amendments to BOCW Act

A few months back, I was studying the Building and Other Construction Workers Act, 1996 which is the first formal and exclusive piece of legislation which provides for social welfare of the construction workers in India. Questions explored were – what explains such poor work, health and social conditions in which the construction workers live? Is there no law which guarantees minimum work and social conditions to them? Highlights of the study are on the poster here and we suggested that the state (governments at the center and state level) should own up the responsibility to provide for this class of workers as well, just as the way it  does for others. The paper parked its findings with the title Rethinking welfare when builders take care of the workers . In the wake of the latest amendment to the BOCW Act, 1996 and a commentary in EPW I find it fascinating that the state’s role is imagined very differently when it comes to blue collar workers and particularly the construction workers.

Rethinking welfare when builders take care of the workers

Rethinking welfare when builders take care of the workers

A recent piece by Vidhya Soundararajan under commentary in EPW suggests that the employers should be charged with the responsibility of registering the workers.  I have made an argument which is pretty much the reverse of what she suggests. Her understanding appears to be based on the registrations, claims and cess utilization statistics that she has sourced from various states. While the aggregate number might make her suggestion of making registration employer’s responsibility, my understanding suggests that this will not work, to put it mildly. More strongly, I think it will distort the already skewed employer-worker relationship. How? By burdening the employer with more responsibilities, which should have been most certainly shouldered by the respective state governments. Why is it that all sorts of formal workers are very well covered by the state governments and when it comes to the “informal” sector workers they wash themselves off?

The state must own up the responsibility just as the way it provides for and cares for the other classes of its workers. And if builders/employers are to take care of the workers then watch out for more trouble from informalization, labour exploitation and perhaps a larger impact on hiring, contracting and infrastructure projects. A good case is Gujarat where although the state has shown positive net growth in economic output, but at the same time has shown no improvement in wages and welfare of the labourers. I strongly believe that it is the State’s responsibility and it cannot be indifferent to this class of workers while at the same time provide the other classes of workers with all the benefits. This will only sow more seeds of discord and alienation.

Sociology of Law & Labour Welfare

I have been studying the building and construction workers in Bangalore as a part of an academic research for over six months now. The study emerges from a simple observation that many of us might have made commuting around in this city – that what explains such poor work, health and social conditions in which the construction workers live? Is there no law which guarantees minimum work and social conditions to them? Turns out there is!

The Building and Other Construction Workers Act (BOCW), 1996 was made to address this situation. This category of workers have worked and lived in appalling conditions forever and the BOCW act was brought into force to improve their situation as a class of workers in the country. Then, did it work to improve their condition should be our next question. This is where we hit the classic Indian condition of having adequate legal provision but little implementation and consequently ineffective law. While this can be analysed in several different ways, I choose to ask a normative question on the understanding of ‘labour welfare’ by the judiciary. This is because the BOCW Act proposes to take care of the workers’ welfare by extending social security benefits to them. These benefits are essentially about financial assistance provided to registered workers under eight different schemes. There are 13,00,000 construction workers in Bangalore according to the Karnataka BOCW Welfare Board estimates. Out of these, 250,000 are registered with the board and therefore deemed as ‘covered’ with social security benefits. Among these registered workers the most popular scheme is financial assistance for education, maternity assistance and funeral assistance in that order!

Sociology of law is a poorly developed discipline in India. Legal analysis often does not account for the social contexts in which the law operates. Its relevance to the contemporary dynamics of labour productivity, migration and their economic contribution makes me consider a sociological enquiry in this issue. The country can no longer afford to neglect its construction workers which forms a substantial part of the unskilled labour force employed in the construction sector and which in fact is the driving force of the sector – not machinery and certainly not capital. A case in point is the Commonwealth Games 2010 in New Delhi. Over Rs.70000 Crores were provided only for improving the city infrastructure and sports facilities. When the work was at peak in mid-May, 2008 to mid-May, 2009, more than one lakh workers were employed in all these projects.

Their welfare must be of immediate concern to the state governments because – first, they are a major group of workers who rank low on human development measures like income, healthcare, education and skills. Second, that the neglect that they have lived through in the 1990s and 2000s which were the famed years of India’s economic success story, has alienated them from considering themselves a part of the society as well as of the growth story which the country so wishes to tout as ‘inclusive’. Here the law is directly linked to social and economic aspects of the construction workers lives. This is also evident in Durkheim’s theorization of the relationship of law to the forms of sociality. He says: “The visible symbol of social solidarity (conceived as a solidarity in fact, that is, a form of solidarity) is the Law,” and adds: ‘Hence we can be sure of finding all the essential varieties of social solidarity reflected in the Law’.

Now, when the law itself doesn’t encompass the values of dignity of labour and welfare as a comprehensive set of enabling conditions that makes a worker feel secure and safe his work environment then what possibilities of him to be reflect even traces of social solidarity. In addition to this the workers are in many cases the flotsam and jetsam of a certain kind of economic growth where it has ceased to be anything beyond an exercise in identifying development by numbers and percentages. All the workers we interviewed during the study were migrants. Therefore, we suggest that there is disconnect in the way the act articulates its goals and has set guidelines for the states to then provide for the welfare of the construction workers. The act discounts the social world that the construction workers inhabit. To interpret their social security as financial assistance is incomplete. Contrast this with the social security bundle of white collar workers which comprise of benefits like provident fund, right to a clean, safe workplace, strict enforcement of building safety compliance, maternity benefits to women employees, crèches, tax sops, food coupons etc. The question of explaining such divergence of benefits between these classes of workers may not concern private enterprises but must in all aspects concern the law.

An enquiry into this law and poor state of welfare of the workers reveals problems on several fronts from economic relationship between employer and the workers to labour rights. What type of change in the status quo is likely to bring about a positive change in the situation and where does one begin thinking about it – are the questions that must be dealt with in order to have a broad based change than a mere sharpening of the act. A divergence from the conventional view which argues that law should not be seen as working through the modern types of courts or police is of significance here.

Reciprocity as a moral norm can make a significant difference to the understanding of construction workers’ relationship with the society at large. Malinowski observes that reciprocity is the binding force in the society. Everyone has to render adequate services to others lest others may withdraw or reduce their service for him. Reciprocity is a key intervening variable (gated link) which through which shared social rules are enabled to yield social stability. On a normative front this appears to be a moral yet practical position that one can take to view labour welfare in the modern society and go about effecting appropriate rules to guarantee a minimal standard of living and work conditions at par with the national average that exists in the country today.

Law, our social world and obeying the law

Lady of Justice Themes, armed with sword and balance scales (Courtesy: Wikipedia)

Lady of Justice Themes, armed with sword and balance scales (Courtesy: Wikipedia)

This morning, an interesting question was posed, which I learn is also a point of start in first year of law degree programs in India. It is- What is law in our social world? A related question that I was grappling with earlier was if we have an obligation to always obey the law. Both of these have bothered me for quite some time now. And here are some quick thoughts on it which relates to my experience of riding around the city on a motorbike, dealing with government offices for various services and some larger national issues that the country faces in the modern times.

Montesquieu proposed that a state could function and govern better by the way of three wings or special purpose units, each charged with a specific responsibility. These he proposed should be- legislature, executive and judiciary. Many democratic governments worldwide have designed their process of law making, enforcement and safeguarding public interest on this design that Montesquieu proposed. Each of these – legislature, executive and judiciary are in turn set up around a set of institutions through which they discharge their functions. The legislature is responsible for identifying, deliberating and developing new issues of concern to the people and form a body of knowledge and discourse on the issue. The executive’s role is to bring about that issue as a bill and see it into realization as a law if the issue warrants so. The judiciary enforces the new law and settles violations, disputes and contests arising in the course of new law that is enacted.

Now, this system assumes that the institutions at every level will act in public interest and will exhibit absolute levels of fairness and justice. In such a scenario one would argue that a citizen must obey the law and in fact should have an obligation to do so. The citizen’s experience as a subject under the social contract with the state that he may or may not consciously realize, however, is a key determinant of whether he will or will not obey the law always. If his experience of living and interacting with these institutions has been fair and just, he would have a clear rationale to obey the laws of whatever nature they are.

For instance, stopping at a traffic signal glowing red at a late night hour with little or no traffic. A citizen will certainly do so in his own interest reflecting upon his experience engaging with the state. The experience would have made him appreciate and also  realize that the entire machinery of the state exist to make his life better as a citizen. So the decision to stop at the signal will probably be made not on the basis of how dangerous it is to jump the signal but on the basis that ‘these rules are for me’ and ‘they exist in my interest’.

By the above example I have attempted to illustrate how a seemingly minor law is obeyed or not obeyed depending on the citizen’s view of the institutions and his past experience with respect to the quality of engagement that he as had. If at any time he would have been stopped by a traffic policeman for an unintentional act like not noticing the signal (doesn’t that happen on a busy, tiring day in a city?) and if the policeman would have let him go without booking a violation ticket against him and taking a bribe instead, then the way in which this individual would engage with the institutions will change significantly. This experience and similar such experiences in various aspects of civic life shape people’s view and respect for the law.

In context of modern India, I therefore argue that it is not an obligation on the citizen to obey the law always. This is because the very institutions that he engages with in his everyday life do not act in a way that exhibits their obligation to safeguard citizens’ interest and in spirit of the social contract that exists. When the institutions fail to do so the citizens must act in a relative manner because in practice the state – although enabled and set up by the people – ends up being much more powerful than the people. And a powerful state which is also corrupt in its morality leaves no recourse for the larger masses. In such situations citizens either suffer incalculable harm brought about by this very state and by the individual’s belief that if he obeys the law he will sure be right in doing so.

Indian institutions suffer from a severe crisis of reputation and trust in the current times. Acts like the Armed Forces Special Powers Act (AFSPA), Prevention of Terrorism Act (POTA) and more recently the Section 66 (A) of the Information Technology Act have only strengthened the state against the citizens. In this landscape when the state institutions themselves blur out the distinction between use and abuse of these acts in practice then how relevant does it remain to assert that one is obligated to obey the law always?

Individual behaviour is an important determinant of an ideal civic system and for a just and mature society. But this must not be seen in isolation to the institutions. They  are a necessary part of the equation. Under the democratic arrangement institutions come first. If they do not set a standard of conduct for the citizens then it cannot be expected of the citizens to have the same blindfolding as that Statue of Justice in the Indian courtrooms has. What happens then are negotiations. Instead of obeying the laws always citizens enter into a transactional relationship with the state. The resultant picture is indeed chaotic. But strangely enough, it is less gory than a picture that a reckless, corrupt and violent state paints.

Modern India except for a few institutions of judiciary, (some believe that this too is falling in its standards and role) has seen appalling levels of subversion. Not a single institution – from the country’s parliament to the states’ police forces are untouched by the collusion of elites, misuse of powers and plunder of capital and natural resources. This, when over 300 million people of this country still struggle with poverty and oscillate between having just enough to survive and in other seasons not even managing that.

If the country’s institutions cannot ensure a fair opportunity to all, back its people’s claim for their rights and safeguard it against those who are crowding them out then obeying and respecting laws by them is a sure stretch of expectations. Because the question is not moral or ideal behaviour of the individuals but a more fundamental – that of the kind of institutions which ask for such behaviour!

Studying Environmental Law in India

We had an interesting discussion this afternoon on approaches to study environmental law. We lead into this subject from ecology and development perspective. It does not examine environmental law as an area of practice in law but as an exploration of ecological, environmental issues from the legal perspective. The difference must be noted upfront.

In a recent study on vegetable hawkers on Indian railways, we explored the lives of the hawkers and examined how railways as a public space is contested for, by the hawkers and the Indian railways as the owner of the property. While the property is state owned, the rules assert the right to property in a manner that it excludes the interest of those who earn their living by hawking goods on the trains. Right to livelihood of the hawkers in this case is trumped by the right to property of the Indian railways. The Indian Railway Act of 1987 considers hawking of goods by any person other than licensed vendors on the trains illegal. And for the kind of goods sold by the hawkers in this case have no licenses to be applied for. This becomes a complex issue due to the layers of conflicts and interests involved.

Similarly, there are many issues in which legal aspects tend to become key determinants of finding or even attempting a reasonable solution or alternative. How does one approach the problem from the legal aspect? Environmental Law, Governance and Policy in India is a fairly wide field to study. For beginners in this area finding a coherent and structured approach becomes the first hurdle. This post outlines various ways to study environmental law.

What is law?

Some questions that today’s lecture raised are the following. These are likely to become separate posts in themselves as I go exploring this subject in the coming weeks. The question in many ways is central to the understanding, interpretation and practice of law because it is in the manner that we see it, that determines how we bring it to our use. For instance, if it is a means of social engineering then the emphasis on construction, outcomes and interests (of the state?) are bound to be critical. For instance, the government of India’s position on LGBT issues. So-

  • is law social engineering?
  • is it a command and must be followed?
  • is it a bridge to an imagined future? (this I find interesting for the way it is articulated)

Law as violence is another critical lens to explore its practice in India. What distinguishes law from other subjects is ‘violence’, says Abhayraj. This is an interesting way for the manner in which the contest of interest and space is interpreted in terms of violence. I remember reading a noted judge who considered a judge’s pronouncement too as an act of violence. It at some level affects the fate of a claimant in a manner that harms or violates his rightful interests.

Laws are derived from various aspects of human society and organization. An origin based exploration of law offers vital information about the development, progression and current practice of the law. Based on this, the ways in which environmental law can be explored are-

  1. Positive Law: This is about the standard ‘law in the books’ approach. It is often historical and narrative  in its examination of the law under study. For instance, when the Forest Rights Act, 2006 of India is can be examined from the traditional relationships that the people dwelling in them and dependent on them have enjoyed.
  2. Customary Law: Traditions and customs of society are another source of law. According to Hindu customs, a man and a woman are considered married only after they take seven rounds of a holy fire (called saptapati). The Hindu Marriage Act regards this custom as mandatory under the Hindu Marriages Act. Another interesting instance is the Constitution of Equador which gives the idea of “Mother Earth” a legal validity.
  3. Constitutional Law: The constitution of a nation guarantees fundamental rights to its citizens. These rights are a source of law, where the law ensures that such rights are safeguarded and ensured to every citizen. Similarly, the duties of a citizen that are listed in the constitution also make are a source of law. Such laws are called constitutional laws.
  4. International Law: Nations do not exist in isolation. Numerous essential relationships bind them together-trade, culture, traditions etc. These constitute international law. From an environmental perspective, consider rivers which flow through many countries like Nile and Ganges. The sharing of such a water resource involves trans-boundary co-operation and mutual agreement.
  5. Common Law: History and legal precedence are yet another source from which law derives itself. In some cases the courts take a certain position based on an earlier judgement given by the court. This legal precedence in this case is serving as the source of law for the new judgement. Such a source pertains to common law.

Environmental law in India has been a domain of common law, says another professor who has been studying pastoralism and common property resources for over three decades. Common law is the main vehicle for most environment related judgements in India. The dominant legitimizing language earlier has been that of egalitarianism. In contemporary India, it is essential to examine the kind of environmentalism that comes through by the way of courts and their judgements. For instance, Supreme Court constructs a dam by Shiv Visvanathan illustrates this point about how the Supreme Court envisions environment and the manner in which it articulates it.

There are two other themes in environmental law in India and the numerous cases of environmental degradation that have emerged:

That of ‘intergenerational equity’. This is the core argument in a paper by Amartya Sen titled Why we should preserve the spotted owl.

Precautionary Principle– this states that in cases where a clear understanding of the consequences of undertaking an activity is unknown, then that activity must not be undertaken.

Finally, as it appears most of the cases in environmental law in India tend to regard environment as a ‘resource’ and the arguments lean towards an instrumental utility of environment. Amartya Sen argues that environment need not be saved only because they are essential today or in the future but because we might also want to leave the freedom of experience and quality of environment to the next generation, as that which we are enjoying. This to me appears a powerful idea, but how do the courts reason this out in the wake of tremendous development challenges that India faces?