View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Columbia University Academic Commons Competing Populisms: Public Interest Litigation and Political Society in Post-Emergency India Anuj Bhuwania Submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences Columbia University 2013 © 2013 Anuj Bhuwania All rights reserved ABSTRACT Competing Populisms: Public Interest Litigation and Political Society in Post-Emergency India Anuj Bhuwania This dissertation studies the politics of ‘Public Interest Litigation’ (PIL) in contemporary India. PIL is a unique jurisdiction initiated by the Indian Supreme Court in the aftermath of the Emergency of 1975-1977. Why did the Court’s response to the crisis of the Emergency period have to take the form of PIL? I locate the history of PIL in India’s postcolonial predicament, arguing that a Constitutional framework that mandated a statist agenda of social transformation provided the conditions of possibility for PIL to emerge. The post-Emergency era was the heyday of a new form of everyday politics that Partha Chatterjee has called ‘political society’. I argue that PIL in its initial phase emerged as its judicial counterpart, and was even characterized as ‘judicial populism’. However, PIL in its 21 st century avatar has emerged as a bulwark against the operations of political society, often used as a powerful weapon against the same subaltern classes whose interests were so loudly championed by the initial cases of PIL. In the last decade, for instance, PIL has enabled the Indian appellate courts to function as a slum demolition machine, and a most effective one at that – even more successful than the Emergency regime. A recurring sentiment in these recent PIL cases is a deep impatience with the populism that is believed to characterize political life in India, and with the illegalities fostered by it. However, I argue that the enormous powers of PIL stem from its own populist character, which allows the appellate courts great flexibility in being able to maneouvre themselves into positions of overweening authority. With little or no procedure to regulate it, it is increasingly difficult to locate PIL within the conventional rubric of adjudicatory practice. With radical departures from legal norms that further empower the Courts, I argue, PIL has emerged as the vanishing point of jurisprudence. As a weapon of civil society, PIL appears to be a mere legal tool and therefore a classic example of associational activity. But it is really a mirror image of the populist contemporary politics it assails, just without any of the protections that populist political mobilisation regularly requires in a liberal democracy like India. Just as the practices of illegality rampant among India’s white-collared denizens make its civil society uncontainable within any conventional notions of civic behaviour, its favourite weapon, PIL, too, has only a thin veneer of legality. The judicial populism of PIL allows for a radical instability that continually pushes the limits of what a court can do. This dissertation, after examining the why and the how of the rise of PIL, will focus on the most intensive laboratory of PIL in recent times – the city of Delhi. I foreground PIL’s role in the radical reconfiguration of the city in the 2000s, and go on to critique the limitations of the existing critical discourses on PIL: their obliviousness to its materiality and their insistence on purely ideological and consequentialist understanding of recent trends in PIL. Lastly, I address the conundrum of the enduring appeal of ‘debased informalism’ in contemporary India, particularly the self-conscious and opportunistic adoption and celebration of it by the most formal of judicial institutions. If the Weberian account of the emergence of modern law was anything to go by, legalism’s stock in India should have risen to its highest with the growth of capitalism in the post-liberalisation era. Instead ‘legalism’ has decisively acquired a negative connotation in India precisely in this same period. PIL is the most striking illustration of this peculiar historical trajectory. Contents Acknowledgements……………………………………………………………………………………………………………..ii Introduction…………………………………………………………………………………………………………………………1 Chapter 1……………………………………………………………………………………………………………………………15 The Supreme Court and its public The curious case of the disappearing public interest petitioner Chapter 2……………………………………………………………………………………………………………………………58 The rise of the environmental PIL The Supreme Court and the ‘cleaning up’ of Delhi Chapter 3……………………………………………………………………………………………………………………………91 “This High Court used to rule this city” Public Interest Litigation as a slum demolition machine Chapter 4………………………………………………………………………………………………………………………….123 Good judges, bad judges Critical discourses on Public Interest Litigation in India Conclusion……………………………………………………………………………………………………………………....150 The procedural is political References……………………………………………………………………………………………………………………….159 i Acknowledgements This dissertation has been written with the support of a large number of individuals over a period of many years, and I have incurred more than my share of intellectual and personal debts. My advisor, Brinkley Messick, has been remarkably patient and supportive throughout, showing faith in this doctoral project right from its conception to the final phase. His sense of excitement about this project was infectious and invigorated me just when my self-belief was flagging. Partha Chatterjee’s oeuvre was the inspiration that led me to grad school in the first place, and it has been a privilege to work with him. Brian Larkin was always most approachable and has been a comforting presence in the difficult years of struggling with writing. Ritty Lukose graciously agreed to be part of my dissertation committee at a late stage but was astonishingly generous with her constructive and close engagement. Sudipta Kaviraj was the last teacher I had in my long student life, and was undoubtedly the best. His ideas have influenced every chapter of this dissertation. The courses I did at Columbia, particularly with Anupama Rao, Elizabeth Povinelli, Marilyn Ivy, Mick Taussig and John Pemberton were memorable and have had a long-lasting impact on my intellectual trajectory, even if it might not necessarily be apparent in this dissertation. This dissertation project was incubated over a hot Delhi summer many years ago because of the personal legal predicament faced by Jean Dreze and Bela Bhatia. The short but memorable experience of working closely with them on their case was the point of entry for me into this project. The interminable discussions of the short-lived ‘Working Group on Delhi Land Laws’ that Jawahar Raja, Shrimoyee Nandini Ghosh, Malavika Vartak and I collectively set up (with ii Lawrence Liang joining in later) were what first set the ball rolling. All of these partners in crime remained valuable interlocutors throughout the project. Pratiksha Baxi’s intellectual camaraderie was crucial in renewing my interest in social scientific work on law, and in legal anthropology in particular. The Centre for the Study of Law and Governance at Jawaharlal Nehru University provided a congenial academic home in Delhi just when I was feeling snowed under by fieldwork and the enormity of my research agenda. Thanks in particular are due to Jaivir Singh and Niraja Gopal Jayal. This dissertation was finally completed while teaching at Jindal Global University (JGU) and I want to thank all my colleagues for their support, in particular C. Raj Kumar. I also want to thank my students who opted for the optional seminar on ‘Public Interest Litigation’ that I taught at JGU in Spring 2012. Discussions with Awadhendhra Sharan, Ravi Sundaram, Madhu Kishwar and Aditya Nigam at the Centre for the Study of Developing Societies were most helpful in locating my research project in the history of contemporary Delhi. The fieldwork for this dissertation was funded by a National Science Foundation Doctoral Dissertation Research Fellowship for Law and Social Sciences and a Junior Research Fellowship from the American Institute for Indian Studies. I want to thank all the people who agreed to be interviewed for this research, in particular Anita Shenoy, Prashant Bhushan, Gyanant Singh, Bhure Lal, Shiv Sagar Tiwari, Colin Gonsalves, Harish Nair, Sanjay Parikh, Aparna Bhat, Pushkar Sood, Rajeev Dhavan, Justice Vijender Jain and Justice J.S. Verma. Conversations with Upendra Baxi and Usha Ramanathan have greatly influenced my understanding of PIL, even if my views have diverged from theirs in recent times. Many friends have, sometimes unwittingly, been my informal interlocutors – Arudra Burra, Arkaja Singh, Mathew John, Shivam Vij, Rohini iii Mohan, Bikramjeet Batra, and J. Aniruddha have all been subjected to multiple exchanges, dialogues and diatribes on PIL. Life during grad school was lightened and enlivened considerably by the friendship and company of Adriana Garriga-Lopez, Adam Bund, Ruchi Chaturvedi, Sharmadip Basu, Ryan Chaney, Paul Kockelman, Varuni Bhatia, Siva Arumugam, Poornima Paidipaty, Sandipto Dasgupta, Saugato Datta, Lisa Uparesa, Prashant Iyengar, Chinnaiah Jangam, Sangay Mishra, Antonio Tomas and many others. Many versions of the chapters of this dissertation have been presented at various places. These panels forced me to conceptualize my ideas more clearly, and I am grateful to the organisers