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COMBAT LAW 

november-december 2007 

Editor 

Colin Gonsalves 

VOLUME 6 ISSUE 6 

Managing Editor 

Harsh Dobhal 

Senior Associate Editor 

Suresh Nautiyal 

Senior Editor 

Abid Shah 

Correspondents 

Prabhjot Kaur (Mumbai) 

Sheela Ramanathan (Bangalore) 

Geetha D (Chennai) 

Cover 

Shyam Jagota 

Illustrations 

Shyam Jagota 

Malik Sajad 

Layout 

Bhagat S Rawat 

Deputy Manager (Circulation) 

Hitendra Chauhan 

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Law and the author. In case of 

publication, please write to us at 

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opinions expressed in the articles 

are those of the authors. 

Despair in People's Court 

The Lok Adalats are the flagship of the Indian judiciary for 

dispensation of justice to the poor. Though much propaganda 

has been done by those involved in organising Lok 

Adalats, a social audit by an independent body is urgently 

needed. Are the Lok Adalats achieving their objectives as 

some would like us to believe? Are the poor satisfied by the 

'justice' meted out to them by this institution? 

There are mixed reactions from the field. In some states 

such as Jammu and Kashmir, the former Chief Justice B A 

Khan made excellent use of the Lok Adalats to bring relief to 

the victims of the recent earthquake. In some other states as 

well enterprising judges have infused the Lok Adalats with 

energy and purpose. 

In many parts of the country, however, there are distressing 

reports of poor performance by the Lok Adalats though 

much of this failure is covered up by laudatory reports that 

do not reflect the real situation. In matrimonial cases, 

lawyers representing women particularly have expressed 

their strong dissatisfaction with the attitude and functioning 

of the Lok Adalats. In criminal cases, accused persons are 

compelled to plead guilty on being told that their cases 

would take years to even begin and that they would languish 

in jail in the meanwhile. In matrimonial cases when the wife 

desperately wants out of the marriage, Lok Adalats coerce 

the women to go back to their oppressive and violent husbands. 

In many cases poor persons are forced to settle for 

very meagre amounts, the alternative being lengthy and 

expensive litigation in courts. In this situation, what Lok 

Adalats are meant for? 

This is why an impartial review by competent persons outside 

the judiciary is needed to assess the real impact of these 

institutions on the poor. Lok Adalats were accepted uncritically 

by the Indian Judiciary following a push by the World 

Bank and the Asian Development Bank who devised a nonformal 

legal situation for the poor. Though couched in clever 

language, the basic ideological thinking of the foreign institutions 

was that the formal legal system with highly skilled 

lawyers and judges should be reserved for the rich for commercial 

litigation, and that these institutions should not be 

cluttered up with the 'petty' issues of the poor. It is saddening 

to see now that the Law Ministry naively blundered in following 

the dictates of the Asian Development Bank with its 

well known anti-poor sentiments. 

The better approach is to recognise that India has one-fifth 

the number of judges and courts that it needs. Particularly 

now, when the financial situation is so positive, there is no 

reason why the legal system not be expanded drastically. The 

courts have intervened to improve judges' salaries and rightly 

so. But the judiciary seems reluctant to recognise that 

without a massive expansion of the formal legal system, no 

justice is possible. Without this, arrears will grow, the rich 

will always get priority in courts, and the poor will fall outside 

the justice system, as indeed they have, and a dangerous 

unstable situation will emerge with the working class evolving 

their own means of getting justice. 

For this we will have only ourselves to blame. 

Colin Gonsalves

C O N T E N T S 

LETTERS TO THE EDITOR 5 

INDEPENDENT PEOPLE'S TRIBUNAL 

World Bank unmasked 6 

An Independent People's Tribunal on the World Bank Group in 

India held in New Delhi gave the first ever opportunity to affected 

people, experts and academics from about 60 grassroot civil 

society groups to be heard by a jury of eminent and distinguished 

retired judges, social workers and public leaders. 

Excerpts from jury's preliminary findings 

TRAFFICKING 

Innocence on sale 9 

Poor Indian children are being freely traded across the globe 

Geetha Devarajan 

FARMERS' SUICIDE 

Driven to desperation 12 

Almost 500 farmers have committed suicide in Gujarat since 2003 but the 

state government remains apathetic to their plight 

Anjali Lal Gupta 

POLICY 

Irrigation policy in complete mess 14 

Big irrigation projects are bringing small results. Yet billions of rupees drained out in the name of expanding irrigated area 

Himanshu Thakkar 

LAW OF SECRECY 

The secret factor 21 

The official secrecy law brought in yore by the British has been preferred 

by powers-that-be until this day to deprive people of their right to know 

and selectively use it as and when it may suit the State 

Jai Singh 

BURNING NEIGHBOURHOOD 

New eyes for New Burma 23 

Democracy to Burmese is not a one dimensional, monochrome animal 

to be admired in a glorified zoo but a multi-coloured bird set to fly free 

for all to savour and see 

Satya Sagar 

2 

COMBAT LAW NOVEMBER-DECEMBER 2007


STREET THEATRE 

Propping up human rights old style 26 

Street play has always been the best way to take any issue to 

the people including the victims of a human rights violation 

as the grassroots level 

Archana Sarma and Subhradipta Sarkar 

LAND GRAB 

Bargaining Lives 32 

POSCO brings Orissa government to its knees as an MoU signed 

between the two is not only going to rob thousands of villagers of 

their tenuous preserves in far off hamlets but also ties state's hands 

from doing anything except to support the South Korean giant 

Saurabh Bhattacharya, Madhumita Dutta and Usha Ramanathan 

LOK ADALATS 

Access to justice and rights of needy 38 

Wheels of justice hardly chug along as per a fixed timetable despite the best 

intentions of courts and many among the crowd that throngs daily before them. 

And, thus, there has been talk of reforms that gave way for Lok Adalats or 

people's courts among other things. Empowered to bring conciliation and quick 

disposal of cases referred to them, Lok Adalats have turned out to be a forum 

meant to clear the dockets of regular courts where demands of justice are often 

not fully met as poor have to be content with the solutions offered 

Marc Galanter and Jayanth K Krishnan 

Crippling Lok Adalats 53 

As justice delivery system gets farther from people, a serious attempt like 

Lok Adalats to make justice accessible to large chunk of poor, needy and 

deserving too has been appropriated by powerful vested interests 

Girish Patel 

Access to justice in globalised economy 58 

In an age when politics is giving way to market, poor stand little chance as judiciary too 

undergoes restructuring. This is called for to suit the needs of market economy where billionaire's 

right to remain super rich and plight of the most impoverished to be super-poor 

are going to be accepted 

Upendra Baxi 

www.combatlaw.org 3


PIL and Indian courts 65 

Though the PIL was originally intended to give access to those who 

would otherwise have no voice, it is easily captured by articulate and 

well organised interest groups 

Sandra Fredman 

Is judiciary biased against the poor? 73 

The onset of globalisation and liberalisation are resetting not just terms 

of market and trade but priorities in the judicial arena too are 

undergoing significant changes. Hope ignited among poor and less 

privileged through the seventies by a series of epoch making rulings in 

their favour by Supreme Court in India has taken a beating 

Balakrishnan Rajagopal 

Lok Adalats cannot be a solution 79 

Faced with spiralling backlog of cases throughout the country, courts 

started looking for 'improvisations'. Lok Adalats are result of the 

experiments resorted by the stalwarts of the judicial system, 

says Rajiv Khosla in an interview to Abid Shah 

WORDS & IMAGES 

Book Review 82 

Calling a spade a spade 

A retired IPS officer describes India as a seemingly democratic state that is highly militarised: a review by Colin Gonsalves 

Why US is the only 'Superpower' 83 

In a controversial book, John Perkins narrates a real life tale. His personal journey from the member of international 

community of highly paid professionals who are employed to cheat poor countries around the globe to maintain US 

monopoly. Eventually he calls himself as a former economic hit man and deconstructs international intrigue and corruption, 

the sinister mechanics of imperial manipulations and control 

N Raghuram 

Printed and published by Colin Gonsalves for Socio Legal Information Centre having its office at 576, Masjid Road, Jangpura, 

New Delhi 110014 Printed at Shivam Sundaram, E9, Green Park Extension, New Delhi, 110016 

Editor: Colin Gonsalves, E-mail: editor@combatlaw.org, combatlaw.editor@gmail.com 

Website: www.combatlaw.org 

4 


L E T T E R S 

authors views that India's subdued 

stance on Tibet has harmed 

the Tibetan cause. In a recent 

development, when Dalai Lama 

was being felicitated in New 

Delhi, the government passed 

orders that ministers should 

abstain from the ceremony and 

try to avoid Dalai Lama. This is 

definetely a move to please the 

comrades of Communist China 

so that they dont claim any part 

of Arunachal and manitain cordial 

relations with the Chinese 

government. I would suggest 

that India should take a stand on 

Tibet and should try to mediate 

between the exiled Tibetans and 

Chinese to come to an understanding 

on autonomy at 

the earliest. 

Ena Sindwani, Mumbai 

Exiled Homeland 

Dear Editor, 

This is in reference to Aaliya 

Anjum's 'Wailing Woes' where 

she talks about issues that haunt 

the besutiful paradise called 

Kashmir. Human Rights violations 

in Kashmir are a daily 

norm and it seems people have 

started to live wih this grim 

reality. The Indian government 

seems oblivious about the woes 

of people, especially women, 

who are the worst sufferers of 

these violations. Though many 

human rights groups are working 

in the area but their voices 

are falling on deaf ears. 

The governemnt needs to 

change its policy towards the 

state and look for an amicable 

solution wherein people of 

Kashmir can live without any 

fear and feel as much as part of 

India as we are. 

Priyanka Malhotra, Ludhiana 

Dear Editor, 

This is in reference to article 

'Delhi's Tibetan Glitch' by 

Brahma Chellany. I agree with 

Dear Editor, 

This is in reference to your 

article, Exiled for life, 

September October 2007. The 

article is a wonderful insight 

into the history and lives of 

Tibetian refugees. The author 

has presented a detailed version 

of the sufferings of the 

Tibetan refugees in India. 

Adding to this, the article also 

highlights the apathy in which 

these refugees are treated by 

the Indian government. 

I would like to congratulate 

the author for such an insightful 

piece that deals not only 

with refugee issues but also 

deals with different laws pertaining 

to refugee rights. 

Priyadarshini, Madurai 

www.combatlaw.org 5


the twelve jury members, 

have listened to 

"We, 

four days of testimony 

and depositions from September 21 

to 24, 2007 by affected people, 

experts and academics from some 60 

grassroots, civil society groups and 

communities from all over India. The 

presentations covered 26 different 

sectors of economic and social development, 

ranging in scope from the 

macro-economic impact of wide 

ranging economic policies to testimonies 

from representatives of communities 

said to have been harmed 

and impoverished by specific World 

Bank financed projects. Our members 

include former justices of the 

Indian Supreme Court and High 

Courts, lawyers, writers, scientists, 

economists, religious leaders, and 

former Indian government officials. 

We note that the World Bank Delhi 

office received an invitation to attend 

the Tribunal two weeks in advance, 

but did not wish to participate in the 

proceedings. 

"First and foremost, the evidence 

and depositions we have witnessed 

presents a disturbing and shocking 

picture of increased and needless 

human suffering since 1991 among 

6 

World Bank 

unmasked 

An Independent People's Tribunal on the World Bank 

Group in India held in New Delhi gave the first ever 

opportunity to affected people, experts and academics from 

about 60 grassroots civil society groups to be heard by a 

jury of eminent and distinguished retired judges, social 

workers and public leaders. Excerpts from jury's 

preliminary findings 

hundreds of millions of India's poorest 

and most disadvantaged in rural 

areas and in the cities. It is clear to us 

that a significant number of Indian 

government policies and projects 

financed and influenced by the World 

Bank have contributed directly 

and/or indirectly to this increased 

impoverishment and suffering. All 

this has taken place while a minority 

of India's population that constitutes 

the middle class and rich has enjoyed 

the fruits of an economic boom. 

"The most disturbing leading 

indicator for this suffering is the 

alarming increase in farmer suicides 

since the 1990s. From 2001 to 2007 

alone, according to the Indian minister 

of agriculture, 1,37,000 poor 

farmers have killed themselves. 

These deaths are not random events; 

the evidence we heard points to 

increasing financial pressures on 

farmers all over India as a result of 



some or all of the following policies, 

such as: reduced subsidies from the 

centre and states, higher prices for 

poor farmers for irrigation water, 

electric power, and seeds; reduced 

subsidies for agricultural inputs, 

reduced access to low interest loans 

for the poor, and opening up of the 

Indian economy to an uneven playing 

field in international trade in 

agricultural commodities. India's 

farmers must now compete with 

imports from the heavily subsidised 

farms of the European Union and 

North America, at the same time 

when even the most meagre state 

assistance for the poorest farmers is 

reduced. India was once self-sufficient 

in food production; its food 

security is now dependent on 

imports. It is clear to us that major 

World Bank Economic 

Restructuring, 

Structural 

Adjustment, and Sector Loans have 

directly promoted and helped to 

finance these economic policy 

changes which are a disaster for 

much of India's more than 700 million 

rural inhabitants, and most disastrous 

of all for poor farmers. 

"Other World Bank loans have 

promoted the institution of user fees 

in the health and education sectors, 

as well as partial privatisation in 

these sectors. Whatever the justification 

for these policies, we heard how 

in practice, they have further disadvantaged 

the poor. The Bank is promoting 

legal and regulatory changes 

the main focus of which appears to 

lessen the social and environmental 

compliance burdens for industry and 

investors, rather than protect the vulnerable 

livelihoods and environments 

of India's poor majority. The 

net effect of many Bank prescribed 

policy "reforms" appears to be the 

reorientation of the Indian State priorities 

from striving to secure a safety 

net for the poor and vulnerable to 

providing a safety net for large 

domestic and international corporations 

and investors. 

"We heard witnesses from the 

poorest Dalit and Adivasi communities 

describe the deterioration for 

their communities from poverty to 

destitution because of forced displacement 

caused by World Bank 

financed projects. A number of these 

projects are notorious and communities 

have sought redress for years: 

Highlights of the IPT 

Vice Chairman of the Kerala State 

Planning Board Professor Prabhat 

Patnaik in his deposition cited the 

example of the Jawaharlal Nehru 

National Urban Renewal Mission 

(JNURM), which is a World Bank 

designed project. In the Kerala 

JNURM project, the state government, 

he said, was being forced to 

accept a conditionality to reduce 

stamp duties to 5 percent from the 

earlier 15-17 percent. To avail a 

loan of about Rs.1000 crores, 

Kerala would lose up to Rs.7000 

crores of government revenue. 

Vinay Baindur of the Bangalorebased 

Collaborative for the 

Advancement of Studies in 

Urbanism (CASUMM) showed evidence 

of how the Karnataka 

Economic Restructuring Loan 

(KERL) resulted in the conversion 

of a state government and its 

economy into a corporatised entity 

meant to generate funds for 

"private sector and enterprise 

development". 'The $250 million 

loan resulted in far reaching 

changes; the closure/privatisation 

of the public sector, nearly two 

lakh permanent employees were 

forced to take Voluntary 

Retirement Scheme (VRS) payments. 

The World Bank ordained 

restructuring process led to a steep 

rise in farmer suicides, many of 

those who committed suicide did 

so because they were unable to pay 

the arrears in power costs that were 

suddenly slapped on them on 

account of power tariff hikes. "The 

withdrawal of subsidies for agriculture 

led to a sharp rise in the costs 

of cultivation", argued Baindur in 

his deposition. 

Jury member and scientist Meher 

Engineer said that the World Bank 

forced inappropriate technology on 

India such as incinerators especially 

damning. "Given the well 

researched evidence that I have 

heard, it is hard to imagine any role 

for the World Bank in the environment 

sector, he said. "The Bank is 

pro-rich, pro-urban and anti-environment", 

he concluded. 

In the 1990s, 20-30 percent of 

World Bank loans in India went to 

the energy sector. Orissa had the 

dubious distinction of being the 

first state to receive World Bank 

loans for restructuring the sector. 

Sreekumar N, from the Punebased 

Prayas Energy Group 

argued that based on World Bank 

advice, Orissa spent upto Rs.306 

crores for foreign consultants, 

ignoring local expertise. The consultants 

recommended the privatisation 

of distribution and the 

American firm AES that took over 

distribution in the central zone 

and behaved in a high handed 

manner and ultimately left the 

state in 2001. 

Nityanand Jayaraman of the 

Chennai-based Corporate 

Accountability Desk in his desposition 

before the jury said, "The Bank 

is perpetrating toxic colonialism by 

funding discredited and polluting 

technology interventions". As evidence 

he presented cases where 

the Bank has promoted the setting 

up of more than 88 Common 

Effluent Treatment Plants, more 

than 90 percent of which were 

shown to have failed to meet environmental 

norms by the Central 

Pollution Control Board. 

Wilfred D' Costa, general secretary 

of the Indian Social Action Forum 

(INSAF) — one of the convening 

groups of the IPT — said, The tribunal 

has been useful since it has 

seen a convergence of social movements, 

unions, academicians, 

researchers and struggle groups 

from across the country. "Our next 

steps would be to use this platform 

to create a broad-based 

political struggle against neo-liberalism 

and work towards an India 

without institutions such as the 

World Bank and the Asian 

Development Bank." 

www.combatlaw.org 7


the Bank's massive loans for thermal 

power development in Singrauli in 

the 1980s displaced many tens of 

thousands of poor, who have sought 

economic rehabilitation and 

improvement of toxic environmental 

conditions, with no redress from the 

Bank or its Indian government borrower, 

NTPC. We heard of the plight 

of hundreds of families impoverished 

by displacement in the Bank 

financed Coal Sector Rehabilitation 

Project, despite the claims of a separate 

Bank Coal Sector Environmental 

and Social Mitigation Project. 

Although the Bank's own 

Independent Inspection Panel found 

in 2002 that Bank management violated 

its own environmental and 

resettlement policies on 37 counts, 

the Bank management has taken no 

effective measures to ameliorate the 

condition of these families. These 

examples are only a small sample of 

a massive pattern of forcible displacement 

of India's poorest and 

most vulnerable populations for 

large-scale natural resources extraction, 

infrastructure and urban projects, 

a number of which have been 

directly financed by the Bank. The 

Bank has announced its intention to 

increase its financing of large-scale 

8 

projects while at the same time there 

is disturbing evidence of its 

widespread failure to implement its 

environmental and social safeguards, 

as well as indications of 

intentions to even dilute the effective 

rigour of these safeguards. 

"One of the disturbing impressions 

we gathered from the presentations 

is that the bank seems to have 

developed the art of making policies 

whose safeguards are only on paper. 

It has developed a language game in 

which words like empowerment 

actually means disempowerment, 

sustainable means unsustainable, 

public-private partnesrship means 

using the public to promote the interests 

of the private. 

"It is impossible to do justice in 

our short preliminary statement to 

the volume, scope and intensity of 

the scores of depositions, expert presentations, 

and eye witness accounts 

we have heard over the past four 

days. The Tribunal will be publishing 

more detailed accounts, and we 

will submit a more detailed set of 

findings and recommendations in a 

few weeks' time. What emerges is a 

picture of an institution whose influence 

on the economic and social 

policies of the Indian government is 

Jury members listening to the civil society groups 

much greater than the amount of its 

lending might indicate. The Indian 

government, of course, shares at the 

very least equal responsibility for all 

of the abuses we have witnessed, 

indeed a significant number of officials 

in key ministries such as 

finance and planning have either 

worked at the Bank or IMF, or share 

their assumptions and biases. 

Together all bear considerable 

responsibility for wide reaching 

policies and specific investments 

which in the name of growth and 

development have had the cruelest 

impact on the most vulnerable 

groups in our society. 

"We hold the Indian government 

accountable and call for changes in 

these policies. India and the international 

community must join to hold 

the World Bank accountable for policies 

and projects that in practice 

directly contradict its mandate of 

alleviating poverty for the poorest." 

—The jury members included: 

Amit Bhaduri, Meher Engineer, 

Ramaswamy Iyer, Alejandro Nadal, 

Bruce Rich, Aruna Roy, 

Arundhati Roy, Justice PB Sawant, 

SP Shukla, Sulak Sivaraksa, 

Justice H Suresh and Justice Usha 


TRAFFICKING 

The recent judgment of the 

Madras High Court 

directing the CBI to investigate 

into the kidnapping 

of three children for intercountry 

adoptions (ICA) once again 

brings to light the breakdown of 

legal mechanism. This coupled with 

virtually no supervision of ICA by 

the government and its agencies 

leading to trafficking of children in 

the name of ICA. 

In May 2005, the Tamil Nadu 

police discovered a trafficking racket 

involving individuals and agencies 

at various levels. These traffickers 

target street children, or kids 

from poor families and those in 

maternity wards of government hospitals, 

kidnap them and sell them to 

so-called adoption agencies for 

amount ranging from Rs 5,000 to Rs 

25,000 per child. According to the 

newspaper reports, these trafficking 

mafia have allegedly sold 350 children 

to the Malaysian Social Service 

Society, an agency involved in adoption, 

for over seven years. 

Salya lost his four-year-old 

daughter — kidnapped by a gang 

that came by autorickshaw — while 

she was playing on the street. 

Kathirvelu lost his one-year-old son, 

who was kidnapped while they 

were sleeping on the pavement. 

Both the families registered complaints 

with the local police. An FIR 

under section "child missing" was 

registered in the year 1997. The 

stolen children were sold to 

Malyasian Social Service Society and 

Poor Indian children are 

being freely traded across 

the globe. A merciless 

adoption mafia's overdrive 

leaves authorities back 

home clueless even as 

Dutch Parliament initiates 

probe after a child from 

Tamil Nadu reaches 

Holland, writes human 

rights lawyer 

Geetha Devarajan from 

Chennai 

Innocence 

on 

SALE 

www.combatlaw.org 9

TRAFFICKING 

they placed these two children in 

adoption to parents living in 

Australia and Netherlands respectively. 

In both the cases the children 

were traded through fabricated documents, 

where another woman 

feigned as the mother and stated that 

she was relinquishing the children 

due to personal hardships. Through 

an order of the High Court the children 

were sent out of the country 

and separated from the biological 

parents. While the FIRs lodged by 

the parents remained pending with 

the police, the adoption agency got 

an order from the High Court to 

place the children in adoption and to 

issue passports. 

The parents who lost their children 

were not aware of the fact that 

their children were being given away 

in adoption even as they frantically 

searched for their child. The grim 

reality is that the adoption mafia 

could use the legal forums viz. the 

social welfare department, the voluntary 

coordinating agency and even 

the judiciary for their illegality. The 

responsibility of verifying the source 

of the child and checking whether 

the child was relinquished by the 

parents, or the child was stolen could 

not precisely be fixed upon any of the 

government or private players 

involved in the process of adoption. 

Today there is no legislation governing 

adoption, especially intercountry 

adoptions (ICA). The Hindu 

Adoptions and Maintenance Act 

deals with adoption between two 

Hindus. This Act also does not regulate 

the inter-country adoptions. The 

Juvenile Justice Amendment Act 

2006, defines adoption - "(a) "adoption" 

means the process through 

which the adopted child is permanently 

separated from his biological 

parents and become the legitimate 

child of his adoptive parents with all 

the rights, privileges and responsibilities 

that are attached to the relationship". 

The Supreme Court took 

notice of child trafficking in the name 

of adoption way back in 1982, when a 

letter written by Laxmikant Pandey 

complaining malpractices in inter 

country adoptions was treated as a 

Public Interest Litigation. A set of 

guidelines were formulated by the 

Supreme Court to regulate both incountry 

and inter-country adoptions. 

The guidelines dealt with 

destitute/abandoned children and 

children relinquished by the parents. 

In the guidelines, the Supreme Court 

made it clear that children should be 

placed for ICA only if Indian parents 

are not available and that every effort 

had to be made by the agencies to 

find placements for a child in an 

Indian family. 

The parents who lost 

their children were not 

aware of the fact that 

their children were 

being given away in 

adoption even as they 

frantically searched 

for their child. The 

grim reality is that the 

adoption mafia could 

use the legal forums 

viz. the social welfare 

department, the 

voluntary 

coordinating agency 

and even the judiciary 

for their illegality 

Neither the guidelines of the 

Supreme Court nor the subsequent 

guidelines of Central Adoption 

Resource Agency (CARA) dealt with 

the convergence of the police department 

and the social welfare department, 

to check if the child placed for 

adoption has been reported as "missing", 

before declaring children free 

for adoption. Again there is interface 

between final judicial stamping 

whereby children are placed under 

the custody of foreign parents under 

the Guardians and Wards Act, thereby 

enabling the mafia to take the children 

out of their birthplace or the 

country. What is illegal at source gets 

legalised finally by a judicial stamp. 

The convergence of these departments 

is the urgent need in the present 

day context. The Madras High 

Court directed the CBI to investigate 

into three cases of alleged trafficking 

and file a compliance report in three 

months. The CBI investigation may 

bring to light the mafia — local, 

regional and international — their 

relations, their modus operandi and 

probably a few persons may even 

face trial. But what happens to those 

parents who have lost their children? 

What about the children who are 

growing in an alien environment 

even while their biological parents 

are alive and looking for them? 

What can one do about the emotions 

of the children given in adoption outside 

the country for losing their society 

and culture? Don't all those 

involved in these processes owe an 

answer in the wake of ruining so 

many lives? 

The model followed by the 

Andhra Pradesh government after 

the adoption scandal came to light 

will be a good model to be replicated 

by other states and the central government. 

Further the placement of 

children in adoption is entirely 

through the state and private players 

do not have a role in adoption except 

to the extent of taking care of children 

abandoned or relinquished. The government 

of Andhra Pradesh successfully 

banned the inter-country adoption 

within the state. Today a 

prospective adoptive parent in 

Andhra Pradesh has to wait for two 

years to get a child in adoption as the 

adoptive parents today outnumber 

the children free for adoption in 

Andhra Pradesh. 

The urgent steps that need to be 

taken by all the agencies involved in 

determining the future of a child, to be 

placed in adoption, is to take certain 

precautionary steps to minimise the 

possibilities of trafficking in children 

in the name of adoption. They are: 

 

 

to maintain a central police 

information cell of all missing 

children by the state 

police department both at the 

district level and at the state 

level. 

information about all the chidren 

whether abandoned/ 

relinquished or surrendered 

10 


TRAFFICKING 

 

 

 

 

 

 

by their parents to be notified 

immediately to the nearest 

police station both by the 

child welfare agencies and by 

the child welfare committees. 

a certificate from the central 

police information cell that 

there are no complaints pending 

about the child placed for 

adoption should be part of the 

records along with the application 

before a court of law 

seeking orders for placing the 

child/children in adoption. 

all cases of surrender/relinquishment 

should be 

followed by DNA testing to 

check that the child is not 

stolen. 

the photographs of the relinquished 

parents should be 

part of the application, along 

with the photograph of the 

witnesses. 

a certificate from CARA that 

no parents are available in 

India to adopt the child and 

that the child is free for ICA. 

all applications for adoption 

both in-country and ICA 

should be received, processed 

by a state authority/agency 

and the child welfare 

agencies should look after 

the welfare of the children 

alone and should not directly 

receive applications, process 

them. 

payment of any processing 

fee should be to the state 

authority/agency and not 

directly to any child welfare 

agencies. 

The Parliament of Netherlands 

appointed a parliament committee 

after it came to know about the trafficking 

of Kathirvelu's child and is 

investigating the whole question of 

Neither the guidelines of the Supreme Court nor 

the subsequent guidelines of Central Adoption 

Resource Agency (CARA) dealt with the 

convergence of police department and the social 

welfare department, to check if the child placed 

for adoption has been reported as "missing", 

before declaring children free for adoption 

A grim future ahead 

adoption from India. 

Do our union and the state governments 

take stock of the disappearing 

child population? Are they 

accountable to the loss and trauma of 

parents like Salya and Kathirvelu 

and for the negligence and violations 

committed by various agencies viz., 

police department, recognised placement 

agency, child welfare committees, 

the voluntary coordinating 

agency, the scrutinising agency, 

CARA, and finally the judiciary 

which must consider the suggestions 

3 and 6 and make them part of their 

procedures to relieve itself from 

being dragged into the negligence of 

the administrative machinery. 

www.combatlaw.org 11


With successive crop failure, 

increasing debts and no aid 

from the government, farmers 

in Gujarat state are going the 

Vidarbha way. Nearly 500 farmers 

have committed suicide in the last 

four years. 

Ramesh Bhai Mangalpura, a 45- 

year-old farmer of Sarabgardad village 

in Rajkot district, killed himself 

in August last year. In 2004, floods 

destroyed his crops. In 2005, Ramesh 

lost his groundnuts crop due to lack 

of rain while in 2006, a fungal infection 

wiped out any hope of a good 

harvest. After an investment of over 

Rs 55,000 in fertilisers, pesticides and 

irrigation, Ramesh yielded nothing. 

"His heart sank when he saw 

black fungal infected flowers on Jeeru 

shrubs. He once said: 'All my hard 

work has gone down the drain, what 

I will do now, who will give me a 

fresh loan?' says Prabhaben, 40-yearold 

widow of Ramesh. 

"One night he refused to have his 

meal, the next morning he committed 

suicide," says Prabha. 

12 

Driven to 

desperation 

All is not well with the 'vibrant' Gujarat. Almost 500 

farmers have committed suicide in the state since 2003. 

More and more debt-ridden farmers are taking this 

extreme step as crops fail repeatedly and government 

remains apathetic to their plight, reports Anjali Lal Gupta 

Every year farmers have to repay 

bank debts in March, or they are 

denied new loans. Plus, rates of interest 

on previous loans go up. 

Ramesh had taken loans from his 

relatives, the local self-help group 

and a government bank. He had 

defaulted on his payments and 

needed money for his daughter's 

marriage. 

He owned a small plot of 2.5 acres 

and had rented another 4 acres for 



Vidarbha's 

dying woes 

Mumbai High Court's Nagpur 

bench informed Maharashtra 

government that the present relief 

package has failed to stop farm suicides 

in the debt-ridden Vidarbha. 

The Court asked the administration 

to make urgent changes in the 

methodologies so that the relief aid 

was directly given to the distressed 

farmers in order to slow down farm 

suicides. Instead of taking High 

Court order in a true sense of 

humanity and principles of civil 

governance, the Maharashtra government 

in its official publication 

Lokrajya carried that relief packages 

are 100 percent successful 

and properly implemented. But the 

office of the relief commissioner in 

Amaravati has very gloomy picture 

and figure of total farm suicides 

after relief package was announced 

in six districts of West Vidarbha as 

per official record is 1720. 

Moreover, in 2007 the official figure 

of farm suicides in six district of 

Vidarbha has reached 923. 

Vidarbha Janandolan Samiti 

(VJAS), urged the Maharashtra 

government to consult to cotton 

farmers for relief aid. After receiving 

drum-beating remark that present 

relief methodologies failed to 

stop farmers suicides in Vidharbha, 

chief secretary of Maharashtra 

asked local officers to suggest new 

methodologies in relief package. 

However, Kishor Tiwari, local farm 

activist said, "It is ridiculous to consult 

the same non-functional culprits 

for making new changes in 

relief package to stop farmer suicides. 

Infact, now farmers should 

be consulted on what their hardships 

are and they should be 

addressed to relieve distress and 

farmer suicides thereby stop." He 

urged the Maharashtra Chief 

Minister Vilasrao Deshmukh for 

restoration of the price of raw cotton 

at Rs. 2,700 per quintal and 

complete loan waiver other 

than providing food security, 

health care, free education 

and employment. 

Rs. 20,000 to try to meet the family's 

basic needs. But produce from all his 

land was almost zilch. Seeing no way 

out Ramesh Bhai Mangalpura consumed 

pesticide. 

Tough times 

Farmer suicides are a growing crisis 

in Gujarat. For three consecutive 

years, farmers say that they have 

been battling not only natural disasters 

but also state's apathy to 

their plight. 

"The authorities release excessive 

water from dams every year, and that 

leads to floods. Cost of seeds, fertilisers, 

irrigation and labour have gone 

up while subsidies are being cut. And 

we do not get due rates for our yield," 

says Partibhaben whose husband had 

also committed suicide in 2006. 

'The authorities 

release excessive 

water from dams every 

year, and that leads to 

floods. Cost of seeds, 

fertilisers, irrigation 

and labour have gone 

up while subsidies are 

being cut' 

Occupation of loss 

Farmers are finding it difficult to survive 

only on agriculture. Their woes 

are captured well in the local idiom 

that says, "kheti etley khotno dhandho 

(farming is an occupation of loss)." 

Reasons ranging from financial 

debts and failed crop to illness and 

jilted relationships have been cited 

as the reasons for this drastic step 

by the state director-general of 

police (DGP). 

News reports have quoted the 

police as saying that 6,055 farmers 

died 'accidentally' or for 'unexplained 

reasons'. 'Accidental' deaths 

include 'consuming pesticide by mistake 

to cure a headache' or 'dropping 

dead while spraying insecticide'. 

Local activist Bharatsinh Jhala has 

used the Right to Information (RTI) 

Act to get details from the state 

The official Vidarbha farm 

suicides table 

Months Farm Months Farm 

2006 suicides 2007 suicides 

July 109 January 99 

August 120 February 107 

September 156 March 113 

October 160 April 97 

November 125 May 102 

December 127 June 82 

July 75 

August 95 

September 106 

October 47 

Total 797 922 

police on farmers' suicides and 

deaths and also compensation from 

the state agriculture department. 

Jhala is part of an ActionAid fellowship 

scheme for emerging community 

leaders tackling poverty. 

"I am myself a farmer. Farmer suicides 

are an emotional issue for me. 

A suicide committed by a farmer in a 

neighbouring village touched me to 

the core," says Jhala. 

It was then he decided to invoke 

the RTI. He says, "I wanted to bring 

out the contrast between the state 

government's claims of a 'Vibrant 

Gujarat' and the actual situation of its 

farmers." 

Jhala says that according to the 

agriculture department, compensation 

has been given to 1,909 families. 

That means 4,146 families have not 

been compensated for their loss. 

Newspaper reports say that over half 

of the 6,055 claims for compensation 

have been rejected. 

According to Jhala, only 20 percent 

of the claims have been honoured. 

"The state government has 

been paying a premium for farmers' 

insurance, but one wonders why 

only a few claimants receive payouts,'' 

he adds. 

Rightfully ours 

"We are asking the government to 

provide compensation for losses over 

the last three years, which have driven 

families to desperation," adds 

Pratibhaben. 

Government also needs to support 

farmers in restoring land affected 

by floods. Farmers are also calling 

for government to immediately 

waiver outstanding loans. 

 


POLICY 

Irrigation policy in 

complete mess 

Big irrigation projects are bringing small results. Yet billions of rupees drained out 

in the name of expanding irrigated area, writes Himanshu Thakkar 

In twelve years from 1991-92 to 

2003-04 (the latest year for which 

figures are available), there has 

been absolutely no addition to net 

irrigated areas by canals as reported 

by union ministry of agriculture, 

based on actual field data from 

states. In the period from April 1991 

to March 2004, the country has spent 

Rs 99,610 crores on major and medium 

irrigation projects with the objective 

of increasing canal irrigated 

areas. What the official data show is 

that this whole expenditure has not 

led to addition of a single ha in the 

net irrigated area by canals in the 

country for the whole of this 12-year 

period. In fact, the areas irrigated by 

canals have reduced by a massive 

3.18 m ha during this period. This 

should be cause of some very serious 

concerns and the ministry of water 

resources (MWR), the states and the 

planning commission will have to 

answer some difficult questions. 

The then Prime Minister Rajiv 

Gandhi speaking on big irrigation 

projects to state irrigation ministers 

14 

in August 1986 had said, "Perhaps, 

we can safely say that almost no benefit 

has come to the people from 

these projects. For 16 years, we have 

poured out money. The people have 

got nothing back, no irrigation, no 

water, no increase in production, no 

help in their daily life." Only change 

that quote would require today is 

removal of the word Perhaps. 

In this period, the MWR has been 

claiming (e.g. in the working group 

report on water resources for the 

eleventh Plan) that they have created 

additional irrigation potential of 

8.454 million ha and utilisation of 

irrigation potential of additional 

Ha 

18000000 

17000000 

16000000 

15000000 

14000000 

Year 

1988-89 

1989-90 

1990-91 

All India Net Irrigated Area- Canal 

1991-92 

1992-93 

1993-94 

1994-95 

6.297 million ha, but the data from 

the ground raise questions about 

these claims. The MWR has been 

using such claims to push more allocations 

for investment in major and 

medium irrigation projects. The 

MWR has proposed, for example, 

that in the eleventh Plan, an allocation 

of Rs 1,65,900 crores should be 

done for the major and medium irrigation 

projects. The available facts 

show that this will be a total waste of 

public money. 

The net irrigated area by canals 

all over the country was 17.79 million 

ha in 1991-92. In all the years thereafter, 

till 2003-04, the latest year for 

1995-96 

1996-97 

COMBAT LAW NOVEMBER-DECEMBER 2007 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

2002-03 

2003-04

POLICY 

The detailed figures of net irrigated area by source for the period 1990-91 to 2003-04 is given in the table below. 

Net irrigated area by source, All India, 1990-2004 (Ha) 

Canals Tube Wells Other Wells Total GW Tanks Other Sources Total 

1990-91 17453000 14257000 10437000 24694000 2944000 2932000 48023000 

1991-92 17791000 15168000 10869000 26037000 2991000 3048000 49867000 

1992-93 17457000 15814000 10569000 26380300 2854000 3599000 50293000 

1993-94 17111000 16376000 11386000 27762000 3152000 3427000 51452000 

1994-95 17280000 17190000 11722000 28912000 3276000 3533000 53001000 

1995-96 17142000 17937000 11860000 29797000 3111000 3460000 53510000 

1996-97 17262000 18410000 12408000 30818000 3343000 3626000 55049000 

1997-98 17092000 18432000 12448000 30880000 3100000 3491000 54563000 

1998-99 17554697 20627894 13050073 33677967 2944266 3266846 57443776 

1999-00 17278592 20842969 13036710 33879679 2686183 2857897 56564414 

2000-01 14229380 21394279 10855953 32250232 2490856 2769566 51740034 

2001-02 16240609 25161523 9818183 34979706 2349073 2594310 56163698 

2002-03 14347064 18035551 8729653 33765204 2340000* 2532891 52985159 

2003-04 14605419 25676525 9513092 35189617 2440000* 2707024 54942060 

*: Assumptions based on trends. 

Source: 1. CWC's "Water and related statistics", various years. 2. Ministry of Agriculture, Agricultural statistics and land use statistics, various years 3. 

Website of Ministry of Agriculture, Government of India, http://agricoop.nic.in/Agristatistics.htm and http://dacnet.nic.in/lus/dt_lus.aspx 

It is clear from the above table that the Net Irrigated Area by all sources increased from 48.02 m ha in 1990-91 to 57.44 m 

ha by 1998-99 and remained below 57 m ha thereafter, see the graph below. 

which the data is available, the net 

irrigated area by canals has not only 

been lower than 17.79 m ha, but has 

been consistently falling, as can be 

seen from the graph above. 

So even though it is claimed that 

during the period 1991-2004 total of 

210 major and medium irrigation 

projects have been completed, there 

has been no addition to the net irrigated 

area. This is another revealing 

statistic that should worry all 

concerned. Incidentally, it should 

be noted that the projects add irrigated 

areas even in years before 

they are completed. What this 

means is that some projects that 

were completed after March 2004 

could also have added irrigated 

areas in the period we are discussing 

and some of the projects 

completed as listed above may have 

added some of their irrigated areas 

before the reporting period. 

Rs. 99,610 crores spent, no benefit 

during the period from April 1991 to 

March 2004, the government has 

spent the following amounts on 

major and medium irrigation projects. 

This is the total expenditure on 

these projects including that by the 

centre and the states. 

It is remarkable that the figures of 

net irrigation areas were available to 

the working group and to the ministry 

of water resources and they 

knew that the net irrigated areas by 

canals have been dropping for some 

years. And yet they took no note of 

that in the working group report and 

in fact made claims as stated above to 

push for the case for additional funding 

of Rs 1,65,900 crores for major 

and medium irrigation projects for 

eleventh Plan. 

It is true that this analysis would 

have benefited from similar figures 

of gross irrigated areas by canals at 

all India level during the same period. 

Unfortunately these figures are 

Years 

not available, though we are trying to 

get them. In the meantime we note 

that with so much investment, completion 

of so many projects (which 

are necessarily in new areas not benefiting 

from old irrigation projects) 

and the claims of achievement by the 

MWR, net irrigated areas by canals 

should be increasing, not decreasing. 

What we have achieved, instead is a 

reduction in net irrigated area by 

canals from 17.79 m ha in 1991-92 to 

14.61 m ha in 2003-04 (the latest year 

for which data is available). This is a 

reduction of massive 3.18 m ha, 

almost double the planned irrigation 

210 projects completed, no benefit In the period 1991-92 to 2003-04, 210 major 

and medium irrigation projects have been completed as per the 11th Plan working 

group report on water resources, as per the break up given below: 

Number of M&M irrigation projects 

completed during 1991-2004 

Irrigation Projects completed 

Major Medium Total 

1991-92 3 6 9 

1992-97 9 48 57 

1997-2002 30 66 96 

2002-04 18 30 48 

TOTAL 60 150 210 


POLICY 

58 

All India- Net Irrigated Area By All Sources 

Area (M ha) 

56 

54 

52 

50 

48 

1990-91 

1991-92 

1992-93 

1993-94 

1994-95 

1995-96 

1996-97 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

2002-03 

2003-04 

Similarly, gross irrigated area (if two irrigated crops are taken in year on 

a given area, that area is counted twice in estimation of gross irrigated area, 

but once in estimation of net irrigated area) across all sources has been 

increasing during the period and reaching peak value in 1999-2000 as seen 

in the graph. 

80 

All India- Gross Irrigated Area By All Sources 

Area (MHa) 

75 

70 

65 

Year 

1991-92 

1992-93 

1993-94 

1994-95 

1995-96 

1996-97 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

2002-03 

2003-04 

This increase in all India net and gross irrigated areas have been possible 

due to the increase in groundwater irrigated area from 24.69 m ha in 1990-91 

to 35.19 m ha in 2003-04 (see the graph). In fact the increase in groundwater 

irrigated area has helped the MWR suppress the reality of non performance of 

the big dams. 

Ha 

40000000 

35000000 

30000000 

25000000 

20000000 

Year 

1990-91 

1991-92 

1992-93 

from the controversial Sardar 

Sarovar Project, this is by way of 

illustration. 

In majority of the years during 

1991-2004, the rainfall has been normal 

or above normal as can be seen 

All India Net Irrigated Area- GW 

1993-94 

1994-95 

1995-96 

1996-97 

Figures of gross (& net) irrigated areas from canals for some six major states 

(Andhra Pradesh, Tamil Nadu, Karnataka, Rajasthan, Madhya Pradesh including 

Chhattisgarh and Jammu & Kashmir) for the period under discussion for which 

necessary data is available also indicate this trend as can be seen from the 

graphs. These graphs show that even gross irrigated area by canals has shown 

a consistent decreasing trend, even though we do not have nationwide figures 

for gross irrigated areas by canals for these years. 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

2002-03 

2003-04 

from the figures in the table. So it 

cannot be claimed that this trend is 

due to low rainfall. 

Attempt to underestimate 

groundwater irrigation figures, the 

working group report for water 

So even though it is 

claimed that during 

the period 1991- 

2004 total of 210 

major and medium 

irrigation projects 

have been completed, 

there has been no 

addition to the net 

irrigated area. This is 

another revealing 

statistic that should 

worry all concerned 

16 


POLICY 

And yet they took no 

note of this reduction 

in canal irrigated 

areas in the working 

group report and in 

fact made claims as 

stated above to push 

for the case for 

additional funding of 

Rs 1,65,900 crores 

for major and medium 

irrigation projects for 

11th Plan 

resources for the eleventh Plan has 

attempted to underestimate the contribution 

of groundwater irrigation. 

This can be seen from the following 

figures for the area added for potential 

created and utilised from 

groundwater for the period from 

1991-92 to 2003-04 in the report of the 

working group. 

As against the figures of potential 

creation of 7.169 m ha and potential 

utilisation achievement of 4.754 by 

groundwater during the 1991-2004 

period, the actual addition of net irrigated 

area during the period has 

been 9.15 m ha. If we estimate addition 

to the gross irrigated area during 

the period from groundwater, the 

figure comes to 12.54 m ha, almost 

three times the estimate of potential 

utilisation by the working group 

headed by secretary, union ministry 

of water resources. 

The union water resources ministry 

also seems to be indulging in 

exaggeration in potential utilisation 

of canal irrigated areas. For example, 

according to the working group 

report for the eleventh Plan, 

Maharashtra had irrigated potential 

utilised from major and medium projects 

to the extent of 2.147 m ha in 

2001-02 and 2.313 m ha in 2005-06. 

When we look at the benchmarking 

report for irrigation projects, 

Government of Maharashtra for 

2005-06, we see that according to the 

state government, Maharashtra had 

achieved utilisation of irrigation 

potential from major and medium 

project to the extent of 1.25 m ha in 

2001-02 and 1.617 m ha in 2005-06, 

both figures are way below the figures 

claimed by the eleventh Plan 

working group report. The question 

arises, why should the working 

group, chaired by secretary, union 

ministry of water resources, exaggerate 

the figures of potential utilised by 

M&M projects? 

Some of the reasons for this situation 

include: siltation of reservoirs 

and canals, lack of maintenance of 

the irrigation infrastructure, water 

intensive crops in the head reaches 

and non-building of the canals and 

over development (beyond the carrying 

capacity) of projects in a basin, 

water logging and salinisation, diversion 

of water for non-irrigation uses. 

Some other possible reasons could 

include: increased rainwater harvesting 

and groundwater use in the 

catchments of the major irrigation 

projects, increased groundwater use 

in the canal command areas. In some 

cases, the additional area added by 

new projects is not reflected in the 

figures as the area irrigated by older 

projects (due to above reasons) is 

reducing. Indeed the World Bank's 

2005 report India's Water Economy: 

Bracing for a Turbulent Future showed 

that annual financial requirement for 

maintenance of India's irrigation 

infrastructure (which is largest in the 

world) is Rs 17,000 crores, but less 

than 10 percent of that amount is 


POLICY 

A P- Net & Gross Irrigated Area- Canal 

2500000 

2300000 

Gross Canal 

Net - Canal 

2100000 

Ha 

1900000 

1700000 

1500000 

1300000 

1100000 

Year 

1991-92 

1992-93 

19 93 -94 

1994-95 

1995-96 

1 996 -97 

1 9 97- 98 

1998-99 

1 999 -00 

2 0 00- 01 

2 0 01- 02 

2002-03 

2003-04 

2 0 04- 05 

Karnataka - Net & Gross Irrigated Area- Canal 

Karnataka - Net & Gross Irrigated Area- Canal 

1240000 

Gross - Canal 

Net - Canal 

1140000 

Ha 

1040000 

940000 

840000 

740000 

Year 

1991-92 

1992-93 

1993-94 

1994-95 

1995-96 

1996-97 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

2002-03 

2003-04 

2004-05 

Ha 

TN - Net & G ro ss Irri gated Area- Can al 

1040000 

940000 

840000 

740000 

640000 

540000 

440000 

Year 

1991-92 

1992-93 

1993-94 

1994-95 

1995-96 

1996-97 

1997-98 

1998-99 

1999-00 

20 00-0 1 

2001-02 

Gross- Canal 

Net - Canal 

Expenditure on M&M irrigation projects during 

1991-2004 

Years Expenditure on Expenditure on Total 

Major & medium Command Area 

Irrigation projects 

Development 

1991-92 2729 318 3047 

1992-97 21072 2146 23218 

1997-'02 49289 1519 50808 

2002-04 22049 488 22537 

TOTAL 95139 4471 99610 

2002-03 

20 03-0 4 

2004-0 5 

(Rs Crores) 

available and most of it does not 

result in physical maintenance of the 

infrastructure. In some over developed 

basins, the new projects are like 

zero sum games, since they would be 

taking away water for some of the 

downstream areas. Optimistic 

hydrological projections, which is 

almost universal in big irrigation 

projects, would mean that projects in 

any case would not provide the projected 

benefits. 

A number of eminent experts in 

this area whom we consulted to 

check if this trend is indeed happening, 

said that yes, this is indeed true. 

Some such eminent experts include 

planning commission member BN 

Yugandher, Prof VS Vyas, former 

planning commission member L C 

Jain, former secretary union ministry 

of water resources, 

Ramaswamy Iyer, well known irrigation 

expert Dr Tushar Shah, former 

World Bank consultant Prof 

RPS Malik, among others. 

Some officials of the ministry of 

water resources justify big irrigation 

18 


POLICY 

MP +CG - Net & Gross Irrigated Area- Canal 

2000000 

1900000 

Gross - Canal 

Net - Canal 

1800000 

Ha 

1700000 

1600000 

1500000 

1400000 

Year 

1991-92 

1992-93 

19 93-9 4 

1994-9 5 

1995-96 

1996-97 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

20 02-0 3 

2003-04 

2004-05 

Rajasthan - Net & Gross Irrigated Area- Canal 

2500000 

Gross - Canal 

Net - Canal 

2300000 

2100000 

1900000 

Ha 

1700000 

1500000 

1300000 

1100000 

900000 

Year 

1991-92 

1992-93 

1993-94 

1994-95 

1995-96 

1996-97 

19 97-9 8 

1998-9 9 

19 99-0 0 

2000-01 

2001-0 2 

2002-03 

2003-04 

2004-05 

projects, arguing that increase in 

groundwater irrigation becomes possible 

because of recharge of groundwater 

by canal irrigation. This is 

strange proposition. If groundwater 

recharge is an objective then canal 

irrigation is not the best option to 

achieve that objective. 

Secondly, Dr Tushar Shah of 

International Water Management 

Institute says that hardly 12 percent 

of wells are in canal command 

areas. In a paper presented at a 

national workshop on interlinking 

of rivers in Delhi in October 2007, 

Dr Shah et al say, "a substantial part 

of the groundwater irrigated area 

growth in the last decade is in districts 

outside the command areas 

and show no significant spatial 

dependence with surface irrigated 

area growth." It is clear that big irrigation 

projects cannot be justified in 

the name of increasing groundwater 

recharge by canals. 

These findings have grave 

implications. Firstly, they very 

clearly imply that the thousands of 

Ha 

J&K - Net & Gro ss Irrig ated Area- Can al 

430000 

410000 

390000 

370000 

350000 

330000 

310000 

290000 

270000 

Year 

1991-92 

1992-93 

19 93-9 4 

1994-9 5 

1995-96 

1996-97 

crores the country is spending each 

year on big irrigation projects is not 

leading to any additional net irrigated 

area. Secondly, the real 

increase in irrigated area is all coming 

from groundwater irrigation 

and groundwater is the lifeline of 

irrigated agriculture. Thirdly, in 

fact these futile investments of Rs 

99,610 crores not adding any irrigation 

may be the reason behind the 

slackening of the agriculture 

growth rate India has experienced 

over the last decade. Forthly, Rs 

14,669 crores spent on the 

Accelerated Irrigation Benefits 

1997-98 

1998-99 

1999-00 

2000-01 

2001-02 

Gross - Canal 

Net - Canal 

20 02-0 3 

2003-04 

2004-05 

Programme (AIBP) between April 

1996 (when the programme started) 

to March 2004 (the period we are 

discussing) has not helped add any 

additional irrigation area, the 

claims of MWR that AIBP has 

added 2.66 m ha of additional irrigation 

potential not withstanding. 

AIBP clearly needs to be scrapped. 

Lastly, this raises many accountability 

issues and those responsible 

in MWR, planning commission and 

states will have to answer for a lot. 

The Bharat Nirman Yojana, that 

plans to add one crore ha irrigated 

area during 2005-09 also needs to 


POLICY 

The Working Group report for the 11th Plan claims that during the period, total 

addition to the irrigation potential created and irrigation potential utilisation from 

major and medium irrigation projects was as given in the table below. 

Achievement of irrigation potential creation and 

utilisation by M&M projects during 1991-2004 

Years Potential created Potential utilisation 

achieved 

1991-92 0.41 0.425 

1992-97 2.21 2.13 

1997-2002 4.10 2.57 

2002-04 1.734 1.172 

TOTAL 8.454 6.297 

Sr No Year Country wide SW monsoon (June-Sept) rainfall as % of 

Irrigation potential created and utilised from 

groundwater sources during 1991-2004 

(m ha) 

Years Potential created Potential utilisation achieved 

1991-92 1.635 1.55 

1992-97 1.91 1.45 

1997-2002 2.50 0.85 

2002-2004 1.124 0.904 

TOTAL 7.169 4.754 

Rainfall during 1991-2004 

normal rainfall 

1 1991 91 

2 1992 93 

3 1993 100 

4 1994 110 

5 1995 100 

6 1996 103 

7 1997 102 

8 1998 106 

9 1999 96 

10 2000 92 

11 2001 92 

12 2002 81 

13 2003 102 

(m ha) 

Source: Agricultural statistics at a glance, Union Ministry of Agriculture, 

August 2004 

be urgently reviewed, else, a lot of 

money and precious other 

resources will be wasted. 

This trend indicates that instead of 

spending money on new M&M irrigation 

projects, the country would benefit 

more (at lesser costs and impacts) if 

we spend money on proper repair and 

maintenance of the existing infrastructure, 

taking measures to reduce siltation 

of reservoirs and at the same time 

concentrating on rainfed areas. 

This trend indicates 

that instead of 

spending money on 

new major and 

medium (M&M) 

irrigation projects, the 

country would benefit 

more (at lesser costs 

and impacts) if we 

spend money on 

proper repair and 

maintenance of the 

existing infrastructure, 

taking measures to 

reduce siltation of 

reservoirs and at the 

same time 

concentrating on 

rainfed areas 

On groundwater front, we need 

to make preservation of existing 

groundwater recharge systems and 

augmentation of the same should be 

our top priority. Weeding out the 

unviable investments from the ongoing 

M&M irrigation systems needs to 

be done so that good money (not yet 

spent) is not thrown after bad money 

(spent on unviable projects). In case 

of some of the ongoing projects, it 

may be more profitable to review the 

projects to reduce further investments 

and impacts. 

Even as the planning commission 

finalises the eleventh Plan, this is a 

golden opportunity to make radical 

changes in our water resources development 

plans. If we miss this opportunity, 

the combined impacts of the 

wrong priorities we have pursued so 

far and the global warming will result 

in we having neither the water 

required for the people or the economy, 

nor the cash to maintain and sustain 

the existing benefits, as the 2005 

World Bank report also concludes. 

—The author works with the South 

Asia Network on Dams, 

Rivers & People 

20 



The secret factor 

The official secrecy law brought in yore by the British has been preferred by powers-thatbe 

until this day to deprive people of their right to know and selectively use it as and 

when it may suit the State despite fears of this coming in the way of people's right to 

information, writes Jai Singh 

History has taught us that it is 

often internal decadence and 

corruption and not external 

aggression that has resulted in the 

destruction of many nations. 

Decadence and corruption stem from 

opaque and draconian laws, dispossessing 

people of their rights. 

Societies that compromise the freedom 

to know, limit the choice of the 

people and cripple their right to 

decide. Transparency on the other 

hand opens the doors to progress 

and empowers people on a just basis. 

The need for transparency in government 

functioning is a basic tenet of 

democratic governance. Importantly, 

information belongs not to the State, 

the government of the day or civil 

servants, but to the public. 

One such opaque law is the 

Official Secrets Act, OSA for short. 

This Act is of colonial - 1923 -- vintage. 

It was introduced in England 

after the Marvin (1878) and 

Anderson (1889) affairs. It was 

observed that common law was 

insufficient when it came to prosecuting 

spies. The spies merely borrowed 

documents and there was no 

element of theft involved. Therefore, 

the Officials Secrets Act of England 

1889 was introduced. This law was 

replicated in India in 1923. In UK, the 

Officials Secrets Act of England 1889 

was used as a resistance to the freedom 

of information legislation thereby 

creating a climate of secrecy in 

civil services, which greatly hampered 

the efforts of those who 

wished to obtain and publish information 

about the working of the government. 

However although in 1989 

in England the law was changed, 

both in India and Pakistan the impe- 



The recent raids by 

the Central Bureau of 

Investigation on the 

house of a retired 

officer of the 

Research & Analyses 

Wing for alleged 

violations of the 

Official Secrets Act 

has ignited a public 

debate on the role of 

this act in preventing 

greater openness and 

transparency in 

government 

rial law of official secrecy continues. 

As stated above the law was initially 

designed by the British to protect 

the executive and to develop a 

strategy to ban dissemination of official 

information to the public. Only 

top government officials/civil servants 

had access to these classified 

documents. This same law was 

duplicated and enacted by the Indian 

legislature as purely a consolidation 

measure. However after the Indo- 

Pak war the ambit of this act was considerably 

widened simultaneously 

increasing the penalties and facilitating 

prosecution. 

The most surprising fact is that 

till date there are very few precedents 

relating to this act. In a judgment 

passed by the Delhi High Court 

it was held that even an information 

which may not be secret but which 

relates to a matter, the disclosure of 

which is likely to affect the 

sovereignty and integrity of the State 

or friendly relations with a foreign 

state or useful to an enemy is an 

offence under Section 3 of OSA. In 

Nand Lal More Vs. the State, budget 

leaks were held to fall within the 

ambit of Section 5 . In Sama Alana 

Abdulla Vs. State of Gujarat , the 

Supreme Court, affirming the view 

taken by the Calcutta High Court in 

Sunil Rajan Das Vs. State , held that 

the word 'secret' in clause (c.) of subsection 

(1) of Section 3 qualifies only 

the words "official code or password" 

and not "any sketch, plan, model, 

article, note, document or other 

information." Therefore, a sketch, 

plan, model, article, note or document 

need not even be secret in order 

to avail of the protection under the 

Act. Any sketch, plan, model, document, 

etc., as the government determines 

to be an 'Official Secret' will 

therefore avail of the protection 

under the OSA. This was further 

upheld in Govt. of NCT of Delhi Vs. 

Jaspal Singh . The provisions of section 

3(2) dealing with presumption 

or burden of proof are also onerous 

as they practically deny any defence 

to the accused . 

Taking into consideration what 

has been stated above a question 

arises as to whether such a law 

should at all be in existence when the 

citizens of the country are demanding 

transparency and accountability 

in the daily functioning of the governments. 

This has arisen due to the 

large-scale corruption, which is so 

rampant in India. Although India 

boasts of being the largest democracy 

in the world on paper, demands are 

being made for a participatory 

democracy so that people can actually 

participate in the democratic process. 

The Vohra Committee Report of 

2003 speaks of rampant corruption at 

all levels of governance from top to 

bottom. The judiciary has too joined 

this elite list. Nexus between politicians 

and criminals has been proved 

to exist, with the bureaucracy playing 

an active role. 

Similarly religious fundamentalism 

is once again on the rise in the 

country. Incidences of communal violence 

show that these forces have no 

regard for the basic constitutional 

commitments of the country. It is not 

just secularism but democracy that is 

at stake. The police and the local 

administration, rather than protecting 

the victims of the minority communities, 

get involved and help in the communal 

carnage. The executive, and 

even the judiciary, have tilted mostly 

in favour of permitting the uniformed 

forces to break the law of the land 

with impunity even to kill, especially 

in times of perceived threats to 

national integrity. The recent convictions 

of the police officials in Gujarat 

as well as Punjab lend credibility to 

the public belief that the police is supporting 

and abetting communal political 

parties and criminals in instigating 

riots and gruesomely and brutally 

killing innocent people. 

Therefore, is it justifiable for an 

Act such as the OSA to exist, when it 

is evident that these laws are regularly 

misused by corrupt highly placed 

officials to target minority groups for 

the purpose of exploitation. 

The second Administrative 

Reforms Commission has recommended 

that the Official Secrets Act, 

1923, be repealed, as it is incongruous 

with the regime of transparency 

in a democratic society. Chairman of 

the Commission, Veerappa Moily, 

opined that safeguards for State 

security should be incorporated in 

the National Security Act. The latest 

example of the misuse of the law is 

the case of Major General (retired) V 

K Singh who was charged under the 

Act for writing on corruption in the 

RAW. This case bought into limelight 

the direct conflict between the OSA 

and the Right to Information Act. 

The Chief Information 

Commissioner Wajahat Habibullah 

in his statement to the press said, 

"The OSA is a colonial law that protects 

the government from the public. 

In a democracy, the public is the government. 

Earlier, OSA was the guiding 

principle in terms of custody of 

information held by the government. 

Now custody of information held by 

the government has been given to the 

RTI Act." 

The recent raids by the Central 

Bureau of Investigation on the house 

of a retired officer of the research and 

analyses wing for alleged violations 

of the Official Secrets Act has ignited 

a public debate on the role of this Act 

in preventing greater openness and 

transparency in government. 

Although Mr. Wajahat Habibullah on 

being asked if the OSA was a bottleneck 

in RTI success, he has made it 

clear that the RTI will prevail if there 

is a direct conflict between RTI and 

OSA, the question as to whether OSA 

ought to be scrapped or not still 

remains open. 

—The writer is a lawyer with HRLN 

22 



If sheer sacrifice of body, mind 

and soul for a noble cause were 

convertible into hard currency 

Burma's legions of pro-democracy 

warriors would be among the richest 

citizens in the world. 

However, in reality Burmese happen 

to be among the poorest on the 

planet which is only a reflection of 

how money, historically, has always 

been a measure of dead, inanimate 

property and not of breathing people 

and the living processes they create. 

And yet, for all their great sacrifices 

the saga of the Burmese struggle 

for democracy seems to run like an 

old horror movie one that has been 

seen too many times before. A copybook, 

brutal dictatorship facing 

against classic people's uprisingproducing 

lots of pain and suffering 

but too few victories for the latter. 

Why aren't the Burmese people 

winning in their battle for democracy 

and managing to bring about 

regime change despite all their 

valiant efforts? What will it really 

take to achieve a transition to 

democracy in this seemingly hapless 

nation stuck for decades under one 

of the most brutal ruling classes in 

modern times? 

The record is so dismal that some 

Burma watchers have glibly predicted 

that it is difficult to think of the 

country's future without the military 

handling the levers of power in one 

way or the other. Even worse, they 

claim the country will fall apart if the 

military is not in the driver's seat or 

at least close enough to bark orders. 

I think they are completely off the 

mark with their grim prognosis, misled 

among other reasons, by their 

simplistic equation of democracy 

with parliamentary elections and a 

handful of its associated institutions. 

A better understanding of the 

Burmese experience really lies in 

going beyond short-term, mediadriven 

notions of success and failure 

of mass movements. 

In fact, the good news that is crying 

out to be recognised today is that 

Burma's brave activists—despite 

repeated setbacks—are forging 

through their struggles the foundations 

of a democratic society that 

may well go on to become Asia's 

finest. A more nuanced view of the 

history of democracy around the 

world shows that the long-term 

prospects of building a genuinely 

democratic Burma appear extremely 

promising for a variety of reasons. 

The first and foremost one is simply 

the participation of more and 

more ordinary Burmese in the fight 

for democratic rights even if the price 

means certain imprisonment, injury 

or even worse — brutal murder. 

The recent demonstrations in 

New eyes for new 

BURMA 

Democracy to Burmese is not a one 

dimensional, monochrome animal to be 

admired in a glorified zoo but a multicoloured 

bird set to fly free for all to 

savour and see. Satya Sagar explains 

how in Burma it's not just elections but 

also environment, gender, race, diversity 

and the big 'realpolitik' stuff 



Burma against the military regime, 

that saw several hundred thousand 

people hit the streets in towns and 

cities across the country, were carried 

out under some of the most politically 

repressive conditions in the world. 

While Buddhist monks were at the 

forefront the movement really 

derived its power from the support 

extended by citizens from all walks 

of life. 

In contrast, almost a century ago, 

the first stirrings of revolt against 

British colonial rule involved only a 

handful of Buddhist monks and student 

activists. Later in the thirties 

and forties while Burma's legendary 

'thirty comrades', led by Aung San 

Suu Kyi's father General Aung San, 

steered their nation to independence 

from both British and Japanese rule, 

all this was done with little participation 

from the bulk of the population. 

In 1948, when Burma became a 

free nation, the deeply authoritarian 

structures of both feudal, traditional 

society as well as the newly imported 

machinery of the nation-state 

remained unchallenged by both leadership 

and ordinary citizens alike. 

This combined with the weakness 

of the anti-colonial struggle and the 

resulting absence of a democratic 

political culture meant that despite 

adoption of multiparty elections 

Burmese democracy and the institutions 

it spawned were on shaky, slippery 

ground. 

By 1962, using the excuse of 'preserving 

national unity', following 

demands by Burma's ethnic minorities 

for greater autonomy, the 

Burmese military managed to take 

over the young nation. Since then it 

has tightly held on to power through 

a mix of high intrigue and naked 

force. 

The military dictatorship has not 

had an easy time all these years 

though. Apart from inheriting the 

armed insurgencies led by the 

Burmese Communist Party and various 

ethnic rebel groups in the hills 

and forests, the junta has faced wave 

after wave of protest from student 

activists in the urban areas. 

The biggest uprising till date was 

of course the one in 1988 that unfortunately 

for all its intensity failed to 

dislodge the regime from power. The 

dictatorship was however forced to 

hold national elections in 1990, 

which they lost by massive margins, 

underlining their complete lack of 

legitimacy forever. 

The recent 

demonstrations in 

Burma against the 

military regime, that 

saw several hundred 

thousand people hit 

the streets in towns 

and cities across the 

country, were carried 

out under some of the 

most politically 

repressive conditions 

in the world. While 

Buddhist monks were 

at the forefront, the 

movement really 

derived its power from 

the support extended 

by citizens from all 

walks of life 

It is true the military rulers managed 

to claw their way back and 

recoup some losses since then, 

thanks mostly to external support 

from the ASEAN group of nations, 

China and others interested in the 

loot of Burma's treasure trove of natural 

resources. The ceasefire agreements 

signed with various ethnic 

rebel armies following the break up 

of the Burmese Communist Party 

also brought some respite to the 

regime. 

But, all this while opponents of 

the Burmese junta were not sitting 

idle widdling their thumbs. While 

the latest round of demonstrations in 

Burma has been dubbed as being 

'spontaneous' by the media in reality 

preparations for the showdown have 

been on for months if not a few years. 

Under very difficult circumstances 

thousands of young and old 

activists have been carrying out propaganda 

and organisational work 

within the belly of the beast in myriad 

ways helping achieve — bit by bitwhat 

Aung San Suu Kyi famously 

called 'Freedom from Fear'. 

There has been of course the 

clever use of new technologies such 

as mobile phones and the internet 

but some of the methods used—like 

invocation of black magic curses or 

spreading of subversive jokes about 

the junta—are difficult to understand 

as 'political activity' by many outsiders. 

Within Burma though they 

find resonance among ordinary folk 

and manage to rattle the highly 

superstitious and image-conscious 

military rulers. 

24 



Last year in October, for example, 

the 88 Generation Students led by the 

legendary Min Ko Naing launched 

the 'White Expression' and called for 

'national reconciliation' and the freedom 

of all political prisoners. 

As part of the campaign, students 

urged the Burmese people to show 

their support by wearing white 

clothes, or, at least, white handkerchiefs, 

white triangular brooches or 

badges. 'Whiteness' represents purity, 

sincerity, honesty and altruism in 

Burmese culture. 

''Burmese students have been at 

the forefront of the democratic struggle 

generation after generation. We 

have been sincere, honest and altruistic 

in our struggle on behalf of all 

the ethnic peoples of Burma. With 

this 'whiteness' that we urge the people 

of Burma to work for national 

reconciliation,'' declared the group. 

As the blog site 'Burma Digest' 

noted, the adoption of the colour 

white was tactically significant since 

schoolboys and girls wear white 

shirts and blouses in Burma. The 

members of the junta's political 

party, the Union Solidarity and 

Development Party, also favours 

white. The laymen who dwell in 

Buddhist monasteries are clad in 

white robes. The campaign in that 

respect was nothing short of 'the reappropriation 

of whiteness' by the 

students for their good cause. 

The call for 'national reconciliation' 

showed the political astuteness 

of the former student activists who 

later were also at the forefront of the 

agitation against hikes in fuel prices 

that triggered off the massive 

protests in September this year. 

Outside Burma thousands of 

Burmese political exiles spread to 

different corners of the globe have 

also been working tirelessly towards 

the liberation of their country. Apart 

from contributing funds for the 

upkeep of their families back home 

many of them are instrumental in 

funnelling information, ideas and 

innovative means of dissent within 

the isolated Burmese population. 

Their activities and presence 

overseas has popularised the 

Burmese struggle for democracy 

among ordinary people everywhere 

and made it one of the globe's topmost 

causes today. The phenomenal 

goodwill they have earned and enjoy 

Under very difficult 

circumstances 

thousands of young 

and old activists have 

been carrying out 

propaganda and 

organisational work 

within the belly of the 

beast in myriad ways 

helping achieve — bit 

by bit—what Aung San 

Suu Kyi famously 

called 'Freedom from 

Fear' 

from people around the world is 

itself enough to see a future democratic 

Burma through to the 22nd 

century. (Not accounting for survival 

of our species due to global warming 

of course!) 

Those who claim there is a shortage 

of manpower to run Burma after 

the military regime is toppled 

should see for themselves how hundreds 

of young Burmese activists 

have been training over the years in 

disciplines ranging from medicine 

and engineering to journalism and 

fine arts. 

This is apart from the rich experience 

they have already gained by 

simply living in foreign lands 

amidst alien cultures, picking up 

new skills, absorbing the best and 

diversifying their vision of life, 

economy and politics. 

On another front, one more great 

achievement of the Burmese prodemocracy 

movement has probably 

been the coming together of mainstream 

ethnic Burman activists with 

those from ethnic minorities fighting 

against the centralised nation-state 

created after independence from 

colonialism. In countries like India, 

with an even larger ethnic and cultural 

diversity, some semblance of 

national unity was possible only 

because of the popular and 

widespread mass movements 

against British rule—a trend missing 

in pre-colonial Burma. 

Both in 1988, when ethnic rebel 

groups welcomed and sheltered 

Burmese student activists, and in the 

September 2007 uprising when they 

extended full support to the cause of 

Burmese protestors there has been a 

valuable strengthening of ties. While 

differences do remain in their visions 

of what a future Burma will exactly 

look like, the process of shared participation 

in struggle against the military 

regime is creating spaces for 

dialogue quite unimaginable a couple 

of decades ago. 

But of all the achievements of the 

Burmese struggle listed so far the 

most valuable one has been a deeper 

and richer understanding of the concept 

of democracy itself. 

Today when an average 

Burmese activist talks of democracy 

he or she does not simply refer to the 

replacement of an unelected regime 

by an elected one. They understand—from 

bitter experience—it is 

not so much about who wields state 

power but how and on whose behalf 

it is exercised. 

Democracy to them is not a one 

dimensional, monochrome animal to 

be admired in a glorified zoo but a 

multi-coloured bird set to fly free for 

all to savour and see. It is not just 

elections but also environment, also 

gender, also race, also diversity and 

not just about the big 'realpolitik' 

stuff but the little things in life that 

make it worth living. 

That is why there is no one overarching 

Burmese pro-democracy 

movement but thousands of them 

walking, talking, fighting, declaring 

little republics of freedom wherever, 

whenever the opportunity arises. 

And that is why those who are 

fixated with finding the climax of 

this long running saga should consider 

getting a new pair of eyes to 

witness the birth of Burmese 

democracy—cell by cell, nerve by 

nerve. We can already hear the baby 

crying, surely its smile cannot be 

too far away. 

—Satya Sagar is a writer, journalist 

and documentary film-maker based in 

Delhi. He can be reached at 

sagarnama@gmail.com 



Propping up human rights old style 

Street play has always been the best way to take any issue to the people including the 

victims of a human rights violation in the grassroot level. The medium creates a strong 

relation between the affected individual and the performers that is important for an 

individual to identify himself/ herself with the character leading to a better understanding 

of the issues, write Archana Sarma and Subhradipta Sarkar 

Art in the service of social 

change has always been a 

common trend in the history 

of human civilisation. Street play is 

one of such art forms recognised 

throughout the world. It is a form of 

theatrical performance and presentation 

in outdoor public spaces 

without a specific paying audience. 

As a form of communication, it is 

deeply rooted in the Indian tradition 

as well. It is used as a medium to 

propagate social and political messages 

and to create awareness 

amongst the common masses 

regarding critical issues prevailing 

in society. There is no denying the 

fact that street plays have always 

been an interesting and effective 

tool for community education, 

mobilisation and inclusion through 

hands on experience among a broad 

spectrum of social movements, civil 

society groups, human rights 

defenders and others. 

An interesting part of street plays 

is that they are performed in the 

most unexpected places—in the market 

place, at the bus stop or even on 

the street, where a group of people 

i.e. the performers acting out a short 

skit or play, for any one who might 

wish to stop and watch. For them this 

is a means of reaching people of all 

strata and creating an awareness of 

events around them, calling them to 

change what they believe as the 

social ailments. 

There has always been a constant 

effort on the part of the civil society 

organisations and the social activists 

to physically reach out to the underprivileged, 

excluded and 

marginalised communities who are 

not reached by conventional communication 

channels, and bring in 

awareness among them on their 

shared commitment to the values of 

human rights and spread public 

awareness regarding several social 

issues. In fact, street play has proved 

to be a successful means of attracting 

tremendous grassroot support which 

is very crucial in disseminating issues 

26 



of human rights involving them and 

also putting forth their demands 

before the concerned authorities. 

History of street play 

a. In the West 

The history of street play dates 

back to the 19th century when 

labourers and party workers performed 

plays during the 

Industrial Revolution in Europe. 

Many of the activities of the 

Suffrage Campaign of England 

could also be considered a form of 

street theatre as they were spectacles 

performed in public places to 

attract audiences. Enormous 

parades and demonstrations were 

organised by various suffrage 

organisations and included thousands 

of women, which meant to 

indicate to the public that thousands 

of women from all social 

classes supported right to vote for 

women. Robins, a well-known 

stage actress came up with her 

three act suffrage play, 'Votes for 

Women!' which was performed at 

the Court theatre in London. 

Similarly in the US, the lower strata 

also used the street theatre to 

facilitate their advancement in the 

society. Their performances articulated 

the power inherent in class 

solidarity and mocked at the pretensions 

of the better halves in the 

unequal society. 

Many productions came up 

during the Russian Revolution to 

reach illiterate people in remote 

areas. During World War II, street 

theatre played a role in whipping 

up an anti-war movement. Midcentury 

also saw plays in America 

and England addressing the 

issues related to student's movement, 

women's movement, racial 

discrimination and the Vietnam 

War. In France, the famous 

May'68 Revolution dynamited 

street theatres in the late 1960s. 

While theatres started in a haphazard 

way but soon it became a 

potent weapon for the oppressed 

class for their rights against the 

government. Countless performances 

were done by students, 

workers and peasants. 

In 1962 Peter Schumann, a 

German-born sculptor, dancer, 

and musician opened the doors to 

the Bread & Puppet Theatre in 

Vermont (in the United States of 

America), a low-budget, politically 

progressive theatre arts project 

featuring gigantic, stunningly 

emotive puppets used to personify 

the inhumanity of war, racism, 

poverty, and a range of other 

There has always been 

a constant effort on 

the part of the civil 

society organisations 

and the social 

activists to physically 

reach out to the 

underprivileged, 

excluded and 

marginalised 

communities who are 

not reached by 

conventional 

communication 

channels, and bring in 

awareness among 

them on their shared 

commitment to the 

values of human 

rights and spread 

public awareness 

regarding several 

social issues 

injustices. They were also performed 

in storefronts, churches, 

and on the streets and were different 

from the other people's 

political theatre. Initially known 

as 'guerrilla theatre', it was later 

changed to 'street theatre' as it 

evolved into the broader concept 

of incorporating a wide range of 

artistic disciplines. This guerrilla/street 

theatre continued to 

spread in urban neighbourhood 

community groups, in rural caravan-type 

AIDS awareness campaigns, 

as tools in teaching 

women how to escape domestic 

violence or showing workers how 

to organise and win. These grassroots, 

amateur street theatre productions 

have become a staple of 

community organising, education 

campaigns, and public health initiatives 

throughout the world. 

b. In India 

The history of Indian street theatre 

has its roots in the folk theatre. 

Historically, folk theatre 

emerged in the 15th or 16th century, 

however, it is only in the 

medieval period folk theatre 

gradually became an integral part 

of Indian drama. The tradition of 

folk theatre with revolutionary 

ideology started sometime after 

the first War of Independence 

when the message of patriotism 

and nationalism was spread and 

finally, during and after the independence 

of India, Indian street 

theatre drastically developed as 

an artistic expression in illustrating 

the colours of daily life. It 

became an effort of communicating 

the message of the mass as an 

attempt in illustrating the realities 

of daily life. 

The need of setting up an apex 

body in order to alter the concepts 

of Indian drama and theatre 

was always there; and this need 

was answered with the establishment 

of the Indian People's 

Theatre Association (IPTA) in 

1942 while changing the age old 

concepts of Indian theatre. It was 

the first organised body to channelise 

progressive ideas, give correct 

picture of the critical problems 

like imperialism and suggesting 

solutions and thus, synchronised 

and fortified all progressive 

dispositions which were 

very much a part of the applied 

art form in Indian theatre since 

ages. All India People's Theatre 

Conference was held in Mumbai 

in 1943 where the group presented 

its idea and objective of representing 

the crisis of the time 

through the medium of theatre 



and to help people understand 

their rights and duties. This conference 

led to the formation of 

committees of IPTA across India. 

IPTA became the pioneer of the 

people's theatre movement in 

India with its patriotic and 

socialist fervency. 

However, the history of street 

theatre in India is broken, sporadic, 

intermittent, coinciding 

with periods of political 

upheaval. Habib Tanvir and 

Utpal Dutt used street theatre as a 

political catalyst in the 1940s and 

50s. The common people and 

their sufferings, the struggle of 

humanity and existence, ideally 

found an articulate diction in 

Utpal Dutt's philosophy and ideology 

which were again so much 

a part of his plays. Contemporary 

street theatre was revived in the 

turbulent 1970s. Calcutta saw 

hundreds of street performances 

by radical groups. With the emergency, 

the semi-fascist terror 

against communists, and the 

Naxalbari upheaval, street theatre 

entered a new and potentially 

dangerous phase. Badal Sircar, a 

renowned playwright of West 

Bengal, rose to the prominence in 

1970's and was one of the leading 

figures in the revival of street theatre 

in Bengal. He made farce and 

comedy his weapon to illustrate 

the social scenario of independent 

India. Another milestone in the 

rich timeline of the Indian theatre 

was Shambhu Mitra whose work 

also contributed to the formation 

of Peoples Theatre Association. 

Safdar Hashmi, one of the most 

celebrated names amongst the 

personalities in Indian theatre in 

the post-independence era, was 

chiefly associated with street theatre 

in India. 

Pioneered by 'Jana Natya 

Manch' in north and 'Samudaya' 

in the south, the movement of 

street plays gradually spread all 

over the country. 'Om Swaha', 

'Aurat', 'Roshini' and 'Ahsaas', 

produced by Delhi-based women 

activists focused attention on 

social, economic and emotional 

dynamics of dowry, discrimination 

and maltreatment of women 

became very popular in the late 

Seventies. In 1980 the infamous 

Mathura rape case instigated a 

lot of shows on the need to make 

the rape laws more stringent. In 

fact, the effect of one such play by 

noted theatre personality, Faisal 

Alkazi created a nation wide sensation. 

With the passage of time 

themes of street plays have 

changed from national consciousness 

to capitalism, peasant 

and labour movement, environment, 

communalism, sexual 

harassment of women, issues 

related to child rights, HIV/AIDS, 

police atrocities etc. 

Aspects of street play 

Street play should be distinguished 

from other formal outdoor theatrical 

performances, where there is a discrete 

space set aside and an audience 

paying for the show unlike the street 

play. Street play is a situation where 

The common people 

and their sufferings, 

the struggle of 

humanity and 

existence, ideally 

found an articulate 

diction in Utpal Dutt's 

philosophy and 

ideology which were 

again so much a part 

of his plays. 

Contemporary street 

theatre was revived in 

the turbulent 1970s 

the audience does not come prepared 

to watch a play, and people may not 

have much time on hand. These limitations 

determine the parameters of 

the plays. They are short. The 

exchange is close, direct and intimate 

and, usually loud and larger than 

life. The script and direction is 

always significant. In order to draw 

crowds from all walks of life, the 

plays are humorous. Songs based on 

popular catchy tunes are included to 

add to its appeal. Street theatre aims 

sensitising masses to social issues, 

enrolling them in the process of 

social change and promoting peace 

and harmony. It does not necessarily 

provide answers to the issues raised, 

but tries to analyse the problems. 

Street play as a medium 

Street play has always been the best 

way to take any issue to the people 

including the victims of a human 

rights violation in the grass root 

level. The medium creates a strong 

relation between the affected individual 

and the performers that is 

important for an individual to identify 

himself/ herself with the character 

leading to a better understanding of 

the issues. Moreover, a play does not 

need much explanation as everything 

is communicated in the form of 

expression and emotion. The theme 

of a play is always based on incidents 

taking place in people's life due to 

which street plays are more appealing 

to the audience than any other 

medium. It makes the people think of 

the problems and come up with a 

solution as well. Not only that, it has 

many other advantages such as: 

It can be performed using 

minimum resources 

Emphasis is not at all given on 

the stage decoration; make up, 

dresses and other things 

The characters can be played 

by anyone irrespective of 

gender 

The liveliness that gets reflected 

through such plays can 

hardly be seen through other 

media 

Issues dealt 

In our day-to-day activities, we come 

across numerous issues related to 

human rights that vary from individual 

to individual. Most of the time 

people do a compromise with their 

problems and try to live with them. 

This happens mainly with women 

and other underprivileged groups in 

our country because they do not find 

a platform to raise their voice or 

share their feelings. Hence, during 

the Women's day celebration by 

People's Watch, the focus of the 

street plays was on certain sensitive 

issues such as, domestic violence and 

sexual harassment at workplace. On 

28 



several occasions, incident specific 

issues of the day become the themes 

of the street plays, e.g. corporal punishment 

in school (Dhanam case in 

Salem district in Tamil Nadu), communalism 

(Gujarat riot incident), discrimination 

against Dalits 

(Kandadevi temple issue where the 

Dalits were not allowed to participate 

or to pull the chariot etc.) 

Similarly, subsequent to the inhuman 

killings of children of Nithari village 

in Noida, Saksham, an NGO, in collaboration 

with an activist's theatre 

group, Pandies is being instrumental 

in staging street plays where children 

acted and voiced their opinions. 

Criteria for choosing a locality 

One of the most interesting points 

about modern street theatre is its 

unique sociopolitical place. The 

place or locality for performing street 

play is chosen keeping in mind various 

aspects. Firstly, it is performed 

where human rights violations are 

more or people are vulnerable to 

such violations. Secondly, the location 

is chosen in such areas where the 

perpetrators are accessible or message 

can be conveyed to them. 

Thirdly, there may be instances of a 

particular violation in a specific area. 

Such location may also be chosen for 

performing street plays addressing 

those violations per se. Fourthly, in a 

multi lingual society like India, the 

language of the locality often matter 

a lot. An Oriya play cannot succeed if 

staged in a Tamil dominated area. 

Finally, crowded places like markets, 

bus stands, railway station, et al are 

targeted for such play, because it captures 

a diverse section of the people 

to communicate serious messages in 

the larger interest. At times, the 

organisers visit the selected area 

before actual presentation show to 

conduct a survey to find out where 

most of the people gather during 

their free time in order to maximise 

audience. 

The target audience 

The audience is generally made up of 

anyone and everyone who wants to 

watch. However, the target audience 

is primarily the people in the grass 

root level which include victims, 

women, Dalits, minorities etc. 

Undoubtedly, this is a challenging 

task to reach out and mobilise such 

On several occasions, 

incident specific 

issues of the day 

become the themes 

of the street plays, 

e.g. corporal 

punishment in school 

(Dhanam case in 

Salem district in Tamil 

Nadu), communalism 

(Gujarat riot incident), 

discrimination 

against Dalits 

(Kandadevi temple 

issue where the Dalits 

were not allowed to 

participate or to pull 

the chariot etc.) 

Similarly, subsequent 

to the inhuman 

killings of children of 

Nithari village in 

Noida, Saksham, an 

NGO, in collaboration 

with an activist's 

theatre group, 

Pandies is being 

instrumental in 

staging street plays 

where children acted 

and voiced their 

opinions 

audience where majority is illiterate 

or lives under poverty. 

People's response 

Since such plays depict the real life 

stories of people, they create a strong 

impact on the mind of every individual. 

It helps the people to identify 

themselves with the characters. On 

many occasions, people come forward 

with full appreciation for the 

organisers and the performers for 

being able to expose such sensitive 

issues without fear or hesitation. 

They also express their concern 

about the safety of the performers. 

They are eager to have such performances 

in other places as well so that 

awareness can be created. A significant 

aspect is that women are 

responding on their own to the problems 

they encounter the most. As an 

immediate impact of such performances, 

people have started giving 

testimony of incidents taking place in 

and around their locality. 

A play motivates people more 

than a speech or the conventional 

medium of communication can do. It 

has been realised during most of the 

awareness programmes by various 

civil society groups that messages 

can be conveyed effectively to the 

illiterate people through such performances. 

Through the experiences in 

the field, it has been found that a significant 

aspect of street play is that it 

is placed before the audience in a 

very natural way. Small incident in 

colloquial language is an appropriate 

combination for bringing people 

close to the essence of the play. It 

does not require much explanation 

as things get communicated through 

expressions and emotions of the performers. 

Since the theme of the play 

is always drawn from the day-to-day 

life it is more appealing to the people 

and it encourages them to come up 

with a solution. 

Prominent initiatives 

There are numerous organisations in 

different parts of the country that 

have enriched the inherent tradition 

of street plays in India by taking the 

topical events and have spread the 

awareness of rights into people's 

places of work and residence. Some 

of those organisations have their own 

cultural team while others organise 

teams as and when needed, from the 



local youth clubs, cultural groups or 

so. Following are few instances of 

such initiatives. 

a. Jana Natya Manch 

Jana Natya Manch (popularly 

known as Janam) is a group of 

performers of street play based in 

Delhi popularising street play as 

a form of voicing anger and public 

opinion against injustice in the 

society. Inspired by the spirit of 

the Indian People's Theatre 

Association (IPTA), most of its 

plays are based on cotemporary 

issues such as communalism, economic 

policy, unemployment, 

trade union rights, globalisation, 

women's rights, right to education, 

etc. Its first street theatre 

'Machine' dealing with the 

exploitation of workers, and has 

been performed all over India in 

streets, marketplaces, in front of 

factories, at rallies, and for roughly 

1,60,000 people at the Boat 

Club in New Delhi. The response 

of one of its play Halla Bol targeted 

towards government's repression 

of workers' organs for economic 

struggle, was so overwhelming 

that it invited the ire 

then-ruling party. Consequently 

Safdar was chased during a performance 

and was later beaten up 

with lathis and rods. He succumbed 

to the injuries on the following 

day on January 1, 1989. 

The accused were eventually convicted 

of the crime, after a lengthy 

trial lasting 14 years. 

b. Gaddar 

Gaddar (originally named as 

Gummadi Vittal Rao) is a 

pseudonym of a revolutionary 

Telugu balladeer and vocal 

Naxalite activist from Andhra 

Pradesh. The name Gaddar was 

adopted as a tribute to the preindependence 

Gadar Party. His 

songs not only represent social 

aspirations of the marginalised 

suffering masses but also inform 

the direction to lead a meaningful 

life by joining hands with ongoing 

struggles of new democratic revolution. 

The cultural phenomenon 

of Gaddar is linked with the 

struggles of the people to fight 

oppressive social relationships. 

Mostly, Gaddar had a grip 

over his audiences through his 

powerful folk tunes. Gaddar 

believes that the usage of the folk 

tune gives the identification of the 

artist with people and has 

reached his audience of different 

languages of the nation with the 

help of such folk tunes. Thus, 

Gaddar stands as a culmination 

point of culture, literature, politics, 

life and struggles of 

oppressed people. 

c. People's Watch 

People's Watch (PW), a 

Madurai based Human Rights 

organization, has used street 

plays successfully in educating 

the public of their basic rights and 

contemporary issues. As a member 

of the Campaign against 

Torture in Tamil Nadu, it has 

used the 'Cultural Yatra' innovatively 

to spread awareness on torture 

throughout the state. Since 

the year 2000, 'Cultural Yatra' has 

been organised every year in 

observance of June 26 as the UN 

International Day in support of 

Victims of Torture. More than 

hundred of artistes performed 

street plays, skit, dramas, etc., on 

various forms of torture, including 

atrocities against Scheduled 

Castes and Scheduled Tribes, 

women, dowry harassment, corporal 

punishment in schools and 

custodial torture, thereby reaching 

out to lacks of people living in 

various parts of the state. People 

have come forward in large numbers 

to participate in the signature 

campaign against torture. 

30 



For instance, in 2006, the yatra 

that was held from June 2 - 22 

with 13 cultural teams, who travelled 

the whole of Tamil Nadu 

and Pondicherry, met 5,30,500 

people during the course of its 

journey. The total number of 

artists who were a part of this 

endeavour was 143. A total number 

of 519 street corner performances 

were staged in cities, villages 

and hamlets of Tamil Nadu 

during the Yatra. The 21-day cultural 

yatra culminated in a dusk 

to dawn cultural programme in 

Cuddalore where the artists participating 

in the yatra were felicitated. 

Social activists, theatre and 

film personalities and leaders of 

political parties addressed the 

gathering on issues of torture. 

Through the yatra, PW put forth 

its demands to the government 

that included India's ratification 

of the UN Convention against 

Torture, enactment of a national 

legislation declaring torture as a 

punishable offence. 

d. Nrityanjali academy 

Nrityanjali academy is a 

socio-cultural organisation from 

Andhra Pradesh chose street 

plays to reach out to the people. 

It has conducted several awareness 

programmes on various 

issues like AIDS, environment, 

freedom struggle, and tuberculosis 

through the forgotten folk and 

tribal traditions. It has presented 

150 shows of an AIDS—awareness 

street drama in the state. It 

has also done similar programmes 

with the help of 

Andhra Pradesh AIDS control 

society. With the help of environmental 

and forest department of 

Andhra Pradesh we have presented 

around 100 shows of a 

street drama called 'CITY DIARY' 

in the state. Similarly, with 

Deccan Developmental Society, it 

has presented 50 shows in 

Secunderabad and Hyderabad on 

garbage disposal. 

e. Chennai Arts Group 

Chennai Kalai Kuzhu is a 

Chennai-based amateur theatre 

group comprising individuals 

committed to the cause of a people's 

cultural movement. The 

group is headed by Pralayan, an 

enterprising playwright and 

poet. In the history of its performance 

of over 30 plays, the 

group has touched upon almost 

every socio-political issue that 

has come up in the last two 

decades. The idea of doing street 

theatre in Tamil first came to 

Pralayan when he saw a play by 

Samudaya from Karnataka. The 

power and honesty of the performance 

impressed him greatly 

and Pralayan began writing and 

directing plays on a number of 

social themes—children's rights, 

environmental preservation, 

civic problems and women's 

issues. 'Penn' (Compound), 

'Maanagar' (Corporation), 

'Valliyin Vazhkkai' (Life of Valli) 

and 'James Fund or James Bond' 

are among Pralayan's wellknown 

productions. 

Street play has been a primary 

medium for reaching the common 

masses to bring awareness 

about their rights, and it has 

proved to be an effective tool. In 

our modern trend, people are 

pre-occupied with their own 

business. Under such circumstances, 

it is challenging to make 

people realise about the issues 

that are going on around them. 

Moreover, with remarkable 

advancement of communication 

in the age of information technology, 

street play might have lost 

the mainstream focus; notwithstanding 

the fact, it is undoubtedly 

an effective means of promotion 

of human rights, especially 

in a society where poverty and 

illiteracy writ large. People get 

strengthened by such process of 

bringing issues to an open platform 

which they perhaps cannot 

even think of in an individual 

capacity. They find themselves in 

a position to approach the concerned 

authorities to claim the 

rights that they are deprived of. 

The people become aware of their 

rights and are able to recognise 

when there is a human rights violation. 

They find themselves 

strong enough to fight, because 

they no longer feel ignorant 

about the things taking place 

around them. They do not 

require external assistance all the 

time to prepare themselves to 

achieve what they have lost. They 

are strong enough to approach 

the suitable mechanism for getting 

remedies. Not only that, a 

message is also conveyed to the 

violators of human rights who 

would not dare to continue violation 

against the mass who are 

aware of their rights and are united 

to fight against them. Above 

all, such phenomenon creates a 

responsibility on the public 

to assure a society where 

human rights of every 

individual are respected under 

any circumstances. 

—The authors are law researchers 

at People's Watch, Madurai 


LAND GRAB 

Bargaining lives 

POSCO brings Orissa government to its knees as an MOU signed between the two is not 

only going to rob thousands of villagers of their tenuous preserves in far off hamlets but 

also ties state's hands from doing anything except to support, assist, protect and pave the 

way for investors' interests in all eventuality, write Saurabh Bhattacharya, 

Madhumita Dutta and Usha Ramanathan 

None other than Prime 

Minister Manmohan Singh 

announced in June this year 

that the work at the POSCO project 

site in Jagatsinghpur district of 

Orissa will begin on April 1, 2008. 

However, he failed to acknowledge 

the fact that there is intense opposition 

from people who stand to get 

affected by the project. Naveen 

Patnaik-led Orissa government has 

assured the company about the 

transfer of 4004 acres of land by April 

for the integrated steel plant. On its 

part, the company is arm-twisting 

the state and central government to 

expedite the process or else shift the 

project somewhere else. 

Given the mood of the people of 

Nuagaon, Dinkia, Kujang and other 

affected villages, none of the above 

propositions will be easy unless the 

state decides to use armed force. In 

the past, the Orissa government has 

not hesitated to unleash police and 

paramilitary forces against the people 

of Kashipur, Lanjhigarh, 

Kalinganagar, who had opposed 

similar industrial or mining projects. 

The state in its bid to attract private 

capital has abdicated its role as a 

regulator. In the face of stiff popular 

resistance, it has resorted to every 

means to subvert legal and constitutional 

safeguards. POSCO is no 

exception to this. A close scrutiny of 

the POSCO MoU reveals state's 

nefarious intentions. 

Insidious contract 

On 22 June 2005, a memorandum of 

understanding (MoU) was drawn up 

between the Governor of Orissa (representing 

the state) and POSCO, a 

South Korean steel major, for the 

establishment of a 12 million tonne 

per annum integrated steel plant at 

Paradip in Jagatsinghpur district of 

32 


LAND GRAB 

Orissa. The total investment in the 

project is estimated to be US $12 billion 

after completion, one of the 

largest foreign direct investments in 

the country. 

MoU also includes other components-mining 

facilities, road, rail and 

port infrastructure for the project, 

integrated township, water supply, 

and captive power plant. 

State as a realtor 

The Orissa government has 

promised the company expeditious 

transfer of all non-forest land and 

acquisition of private land. As per the 

MoU, the Company will need more 

than 6,000 acres of land in the following 

manner: 

20-25 acres in Bhubaneswar 

for their registered office and 

headquarters 

4,000 acres for the steel plant 

and associated facilities 

2,000 acres for township development 

Additional pockets for transport 

and water projects etc. 

The Orissa government has committed 

to acquire and transfer such 

large chunks of land free of encumbrances 

through the Orissa Industrial 

Infrastructure Development 

Corporation. The cost for the land 

will be determined under the Land 

Acquisition Act for private lands and 

for government land on the basis of 

the prevailing Industrial Policy 

Resolution on concessional rates. 

A question that deserves to be 

asked is when the land is to be 

acquired for a private company from 

private land owners, why must the 

state act as an agent and acquire land, 

more so under an archaic and colonial 

Land Acquisition Act (LAA). The 

LAA should not be used to dispossess 

people, but be a means of protecting 

people in their negotiations with 

industry. The state should not abdicate 

its role in protecting against the 

exploitation of the people from 

whom land is being taken over. The 

state should ensure that the people 

from whom land is being acquired 

have full information so that their 

agreement to sell is informed. They 

are not led into making decisions that 

would be to their detriment. 

As has often been the cases, the 

state identifies the land for location of 

A question that 

deserves to be asked 

is that when the land 

is to be acquired for a 

private company from 

private land owners, 

why must the state 

government act as an 

agent and acquire 

land 

industry. Then it lets the corporations 

negotiate or coerce people into selling 

their land. This is done to show that 

the state is leaving things to market. 

As we can see, this is not about leaving 

it to the terms of the market. In 

the matter of selling of land, industry 

should not be allowed to prey on the 

weaknesses whether arising out of 

lack of information or whatsoever 

other reasons from the point of view 

of the people from whom land is 

intended to be taken away. 

One critical issue that the MOU 

has not factored in is the impact of 

such large scale diversion of land 

against the interests of petty land 

holders, labourers and landless 

farmhands. The last of them would 

be completely dispossessed of their 

livelihood and would not be entitled 

to any compensation. The Land 

Acquisition Act does not include 

landless agricultural labourers within 

its definition of 'interested person'. 

The Orissa Resettlement and 

Rehabilitation Policy 2006 also fails 

to provide any protection to landless 

peasants and labourers. While the 

policy speaks of the need to 'address 

the specific needs of the women, vulnerable 

groups and indigenous communities', 

its provisions are vague 

and do not spell out the entitlement 

of the landless labourers. 

In Jagatsinghpur district, where 

POSCO steel plant is proposed to 

come up, almost 300 families are yet 

to be allotted legal titles. In the 

absence of pattas or titles, the villagers 

have virtually no bargaining 

power and will get displaced without 

adequate or any compensation. 

Rehabilitation in such cases is not 

even considered by the government. 

R & R packages 

The MOU notes that Resettlement 

and Rehabilitation (R&R) for POSCO 

oustees will be in accordance with 

the Orissa Resettlement and 

Rehabilitation Policy 2006, which 


LAND GRAB 

was drafted and approved by the 

cabinet in April 2006, in the aftermath 

of the Kalinganagar agitation. 

The provisions of this R & R 

Policy fall short of acceptable standards 

and are nothing more than an 

eyewash. It fails to ensure any 

employment guarantee to the displaced; 

it carries just a stipulation 

that the industries give job "preference" 

at least to one nominated member 

of each affected family. Further, it 

remains silent about the government's 

role in cases where people 

don't want to be displaced by the 

industrial projects. 

More critically, while mouthing 

an array of platitudes, it is noncommittal 

on ensuring land for land 

rehabilitation for the displaced families. 

This makes the entire R & R 

policy mere eyewash as no amount 

of cash can compensate for the loss 

of source of permanent livelihood. 

Cash compensation by itself does 

not enable generational farmers 

with lack of alternate technical 

skills to find other sources of livelihood. 

This aspect was recognised 

even by the Supreme Court before 

it sadly remained short of implementing 

its own verdict in the 

Narmada Bachao Andolan case. R 

government should do but does not 

set out specific commitments. 

Further, it places no onus on the state 

government to consult the displaced 

families while designing and 

34 

One of the most 

fundamental 

limitations of the R & 

R Policy is that it does 

not speak in terms of 

commitment from the 

State or entitlements 

for the affected 

persons. It just 

mouths homilies on 

what the state 

government should 

do but does not set 

out specific 

commitments 

For how long the crops will grow on this land? 

& R Policy ignores the fact that cash 

compensation amounts to neither 

rehabilitation nor resettlement. It is 

not and cannot ever be an adequate 

replacement for a source of livelihood 

coming down and secured 

through generations. 

One of the most fundamental limitations 

of the R & R Policy is that it 

does not speak in terms of commitment 

from the state or entitlements 

for the affected persons. It just 

mouths homilies on what the state 

implementing the rehabilitation and 

resettlement plan. 

Permission for mining 

The MoU envisages allotment of coal 

mine and iron mine blocks for captive 

mining for the project, either 

directly or through a PSU. In this 


LAND GRAB 

regard, the Orissa government has 

promised to recommend and 'to use 

its best efforts' to ensure that the central 

government grants its approval 

for prospecting licenses and captive 

mining leases. It is to be noted that 

the conditions governing the grant of 

such licenses are provided by the 

Mines and Minerals (Development 

and Regulation Act, 1957) and the 

Mines Act, 1952, together with the 

rules and regulations framed under 

them, which constitute the basic laws 

governing the mining sector in India. 

Further several regulatory powers 

have been vested in the state government. 

The state government has to 

exercise those regulatory powers 

independently and in accordance 

with statutory mandate and administrative 

law principles guiding exercise 

of discretion. 

The state government promises 

the company or POSCO its best 

efforts to ensure grant of all relevant 

licenses and lease, there is a patent 

conflict of interest between the 

responsibilities of the state government 

under the mining laws and its 

obligations under the instant MoU. 

The independence of the state government 

to act as a neutral regulator, 

according to the statutory principles 

and compelling public interest, is 

severely compromised by its assurances 

under the MoU. 

State govt's role in litigation 

Clause 6 (5) of the MoU states that the 

government shall recommend such 

areas as are free from litigation and 

encumbrances and that in case of any 

litigation 'at any stage', the government 

shall diligently defend its recommendation. 

Such a clause should 

ordinarily be unexceptionable. 

However, the scope of diligent 

defence should only extend to past 

encumbrances and litigation. But the 

instant clause provides that the state 

government will defend at 'any stage', 

its recommendations. This phrase, 'at 

any stage' takes this clause beyond the 

ordinary realm. This raises the question 

as to should the state government 

obligate itself to defend its recommendations 

in a litigation at a subsequent 

or distant time when the grounds for 

challenge to such recommendations 

may include any dereliction or misdeed 

of the company. 

Contract overrides statutes 

The MoU contains a series of promises 

from the state government in the 

nature of assuring its best efforts in 

facilitating all necessary consents 

and clearances for all the components 

of the proposed steel project 

and all ancillary ventures outlined in 

the MoU. For instance, it promises 

assisting the company in securing 

clearance under the Forest 

Conservation Act and Environment 

Protection Act, clearance for creation 

of water bodies and pipelines, using 

its best efforts to enable the company 

secure no objection certificate 

through the state Pollution Control 

Board, facilitating grant of Coastal 

Regulation Zone (CRZ) clearance. 

These tall promises by the state 

completely displaces the statutory 

mandate vested in the state government 

and bodies like the State 

Pollution Control Board by the whole 

gamut of environmental statutes and 

regulations. Indian environmental 


LAND GRAB 

Farmers' in a sullen mood 

laws, as enunciated by the Forest 

Conservation Act, Water Act, Air Act 

and the numerous rules framed 

under the Environment Protection 

Act, including the Environment 

Impact Assessment (EIA) 

Notification and the CRZ 

Notification vest a tremendous 

amount of regulatory powers on the 

state government. 

The MoU, by committing the 

state government to enabling grant 

of consent to the company, prejudices 

and predetermines the regulatory 

functions of the government. Thus, 

the MoU interferes with future exercise 

of statutory powers and, therefore, 

displaces the statutory mandates 

vested in the government. 

This contravenes the widely 

accepted rule of administrative law 

which states that a public authority 

cannot, by contract, restrict the 

future exercise of its statutory powers. 

This was acknowledged by the 

Supreme Court in Indian Aluminum 

Company v. Kerala State Electricity 

Board where the Court also referred 

to several English precedents. 

Unlawful object 

The undertakings made by the state 

The undertakings 

made by the state 

government 

prejudice the issues 

of grant of necessary 

license, consent 

orders and permits 

to the company. 

These decisions will 

be made on the 

basis of the 

contractual mandate 

of the MoU 

government prejudice the issues of 

grant of necessary license, consent 

orders and permits to the company. 

These decisions will be made on the 

basis of the contractual mandate of 

the MoU. In fact, the grant of such 

permits has been rendered a fait 

accompli by this MoU. As such, the 

MoU stands in contravention to the 

established principles of administrative 

law. More problematically, there 

is a real danger of the state government 

finding itself bound to the 

promises made in the MoU, particularly 

if the company acts upon the 

promises made therein. As such, the 

state government may be completely 

bound by the promises held out in 

the MoU and the contractual obligations 

will completely displace the 

statutory mandate vested in it. 

It must be noted in this context 

that one of the general principles of 

contract as postulated in Section 23 

of the Indian Contract Act says that 

the consideration or object of an 

agreement is unlawful if it is forbidden 

by law; or is of such nature that, 

if permitted it would defeat the provisions 

of any law. Every agreement 

of which the object or consideration 

is unlawful is void. Admittedly, a 

MoU is not strictly speaking a contract 

and nor are the promises made 

by the state governments in the 

nature consideration in true sense of 

the term. At the same time, an MoU 

is indeed an agreement that would 

36 


LAND GRAB 

shape the contours of the final contracts 

on each specific issue discussed 

in the MoU and consequently, 

the fundamental principles of contractual 

laws must still very much be 

applicable to it. 

Therefore, it may be argued that 

the current MoU contains clauses that 

contravene the legal principles guiding 

the exercise of administrative discretion 

and, thus, the objects of this 

agreement are unlawful. 

Consequently, such an agreement can 

be said to be a void agreement in so 

far as they fetter and displace administrative 

discretion vested by statutes 

by creating a conflict of interest. 

Judge in its own cause 

These clauses also create a scenario 

where the state government, being 

an interested party due to its part in 

the MoU, judges its own cause while 

granting necessary permits under the 

different environmental laws. This is 

a complete inversion of the fundamental 

principle of natural justice 

which affirms that no one shall be a 

judge in his or her own cause. 

It is an unexceptionable rule of 

law that justice must not only be 

done but also must be seen to have 

done. The MoU and the promises of 

the State Government made therein 

completely shatter the objectivity of 

the state government and create a 

very strong apprehension of bias. 

Clash of interest 

MoU also avers that the state government 

shall recommend to the central 

government setting up of SEZ as 

required by POSCO. Ideologically, 

setting up of SEZ and its appurtenant 

privileging of corporate interests over 

basic rights of the people, creation of 

anti-people and anti-labour enclaves 

that are bereft of any form of democratic 

control is unconscionable and 

must be resisted at all costs. 

But the specific clause in this 

MoU even falls foul of the limited 

norms of the SEZ Act. As already 

argued earlier, it is well established 

in law that the state government 

must apply its mind objectively and 

with reference to the objectives and 

provisions of the Act and make its 

recommendations. However, this 

MoU clearly fetters the state government's 

power to make independent 

recommendations and substitutes its 

discretion with contractual obligation 

towards POSCO and thus 

deprives the provision of state government's 

approval of its entire substance 

and meaning. 

Special treatment 

The MoU states that Orissa government 

will assist POSCO in establishing 

suitable contacts and interfaces 

with the Indian government for 

POSCO's requirement for 400 MT of 

iron for its steel plants in Korea. This 

being a market transaction, there is 

no reason why the state government 

must interfere in it by providing special 

assistance to POSCO when the 

company can purchase its requirements 

from the open market. 

Militarisation of the region 

Patience is running out 

Clause 17 of the MoU states that the 

state government shall be responsible 

for the security of the project and 

take all steps including setting up of 

new police stations. This insidious 

provision highlights the state-corporate 

nexus that has acquired a lethal 

shape in this neo-liberal era. The 

state is increasingly becoming just a 

sentinel guarding the penetration of 

the mineral rich regions of the country 

by the global capital and is abdicating 

its functions of honouring 

and protecting the fundamental, 

political and socio-economic rights 

of the indigenous people and other 

citizens. This is an acknowledgement 

of the role of the state in 

repressing popular movements and 

resistance against mega projects as 

being witnessed in Kashipur and 

in Kalinganagar. 

—Writers are members of Delhi 

Solidarity Group 


LOK ADALATS 

Access to justice and 

rights of needy 

Wheels of justice hardly chug along as per a fixed timetable despite the best 

intentions of courts and many among the crowd that throngs daily before them. 

And, thus, there has been talk of reforms that gave way for Lok Adalats or 

people's courts among other things. Empowered to bring conciliation 

and quick disposal of cases referred to them, Lok Adalats have 

turned out to be a forum meant to clear the dockets of regular 

courts where demands of justice are often not fully met as 

poor have to be content with the solutions offered. As the 

regular courts continue to remain backlog ridden, such 

a deal can well tilt the system in favour of rich, 

affluent, and well to do, warn Marc Galanter 

and Jayanth K Krishnan through an 

indepth study about accessibility of 

justice to the teeming millions. 

Excerpts 

India's courts suffer from enormous 

backlogs. To remedy this 

Indian politicians and judges have 

been promoting various reforms, 

including alternative forums that 

would dispose of cases more quickly. 

One forum in particular, the Lok 

Adalat, or people's court, has been 

promoted with special fervor for 

nearly two decades. The Lok Adalat 

has been widely trumpeted as a success 

by its proponents, but very little 

information is available on the workings 

of this institution. This study is a 

preliminary empirical assessment of 

several sorts of Lok Adalats. These 

Lok Adalats exhibit great variation in 

how they function. We find that their 

performance is highly problematic, 

both in terms of effectiveness in 

resolving cases and in the quality of 

justice received by the parties. 

These findings have serious implications 

for the millions of Indians 

currently being encouraged or 

required to submit their grievances 

to Lok Adalats and for the prospects 

for efficacious reforms of the Indian 

legal system. 

India is rightly acclaimed for 

achieving a flourishing constitutional 

order, presided over by an inventive 

and 

activist 

judiciary, aided 

by a proficient bar, 

supported by the state and 

cherished by the public. At the same 

time, the courts and tribunals where 

ordinary Indians might go for remedy 

and protection are beset with massive 

problems of delay, cost, and ineffectiveness. 

Potential users avoid the 

courts; in spite of a longstanding reputation 

for litigiousness, existing evidence 

suggests that Indians avail 

themselves of the courts at a low rate 

38 


LOK ADALATS 

and the rate seems to be falling. Still, 

the courts remain gridlocked. There 

is wide agreement that access to justice 

in India requires reforms that 

would enable ordinary people to 

invoke the remedies and protections 

of the law. In this study we focus on 

an innovative forum, introduced just 

20 years ago, which has enjoyed substantial 

governmental and judicial 

support and is endorsed and promoted, 

indeed given pride of place 

by influential elites, as a promising 

avenue of access to justice. This 

forum is the Lok Adalat, literally "people's 

court," and as the name suggests 

it is promoted as having a different 

source and character than the 

courts of the state. In fact, the Lok 

Adalat is a creature of the state, but 

because of the pretension that it is 

not this deserves examination under 

the rubric of an alternative, nonstate 

justice system…. 

I. Access to justice initiatives 

A. Nyaya Panchayats: A Failed 

Attempt to Reconstitute 

Justice along 'Indigenous' Lines 

The Lok Adalat movement is a 

recent arrival on the "Access to 

Justice" scene. A movement to restore 

an indigenous legal system flourished 

briefly in the years just after 

Indian Independence. Gandhians 

and socialists within the ruling 

Indian National Congress viewed the 

legal system inherited from the 

British as unsuitable to a reconstructed 

India, in which faction and conflict 

bred by colonial oppression 

would be replaced by harmony 

and conciliation. They proposed the 

displacement of modern courts by 

restored traditional panchayats - a 

proposal that met with the nearly 

unanimous disdain of lawyers and 

judges and the vitriolic scorn of Dr 

BR Ambedkar, chair of the 

Constitution's Drafting Committee, 

who sidetracked the push for panchayats 

into a non-justiciable 

Directive Principle. As part of the 

Panchayati Raj [local self-government] 

policy of the late 1950s, judicial, 

or nyaya panchayats were established 

with jurisdiction over specific 

categories of petty cases. 

Although these nyaya panchayats 

derived sentimental and symbolic 

support from appeal to the virtues of 

In this study we focus 

on an innovative 

forum, introduced just 

20 years ago, which 

has enjoyed 

substantial 

governmental and 

judicial support and is 

endorsed and 

promoted, indeed 

given pride of place by 

influential elites, as a 

promising avenue of 

access to justice 

the indigenous system, they were 

quite different than traditional panchayats. 

They applied statutory law 

rather than indigenous norms; they 

made decisions by majority rule 

rather than unanimity; their membership 

was chosen by popular election 

from territorial constituencies 

rather than consisting of the leading 

men of a caste. Indeed the focus on 

the "village" panchayat represented 

an attempt to recreate an idealised 

version of traditional society that 

emphasised democratic fellowship 

and ignored the caste basis of that 

society and its justice institutions. 

Like their traditional counterparts, 

these official nyaya panchayats 

encountered severe problems of 

establishing their independence of 

personal ties with the parties, 

enforcing their decrees, and acting 

expeditiously. They never attracted 

significant support from the villagers 

in whose name they were 

established. Their caseloads 

declined steadily while those of the 

courts continued to rise. In Uttar 

Pradesh, civil filings in the nyaya panchayats 

fell from 82,321 in 1960 to 

22,912 in 1970 - just over 4 cases per 

nyaya panchayat. During the same 

period, civil filings in the 

Subordinate Courts rose from 74,958 

to 86,749. One indicator of their 

demise is found in the experience of 

a researcher in Uttar Pradesh in the 

1970s, frustrated by the rarity of 

nyaya panchayat sessions, whose villager 

hosts graciously offered to convene 

one to facilitate her research. 

In little more than a decade, 

nyaya panchayats were moribund. 

It is not clear whether they withered 

away because they lacked the qualities 

of the traditional indigenous tribunals 

or because they displayed 

them all too well…. 

B. PIL: Access through the top 

….In the early 1980s a small number 

of judges and lawyers, seeking 

ways to actualise the Constitution's 

promises of justice - promises that 

were so starkly unrealised in practice 

- embarked on a series of unprecedented 

and electrifying initiatives. 

These included relaxation of requirements 

of standing, appointment of 

investigative commissions, appointment 

of lawyers as representatives of 

client groups, and a so-called "epistolary 

jurisdiction" in which judges 

took the initiative to respond proactively 

to grievances brought to their 

attention by third parties, letters, or 

newspaper accounts. Public interest 

litigation, or social action litigation, 

as these initiatives have been called, 

sought to use judicial power to prowww.combatlaw.org 

39

LOK ADALATS 

tect excluded and powerless groups 

(such as prisoners, migrant labourers, 

and the environmentally susceptible) 

and to secure entitlements that 

were going unredeemed. 

At the same time the government 

and the bar moved to implement the 

long-standing commitment to legal 

aid. A body was established, under 

the aegis of the Chief Justice of 

India, to coordinate the implementation 

of legal aid programmes. And, 

most strikingly, there appeared a 

number of innovative legal service 

schemes in which social action 

groups for the first time sought to 

use law systematically and continuously 

to promote the interests of 

various constituencies… 

These programs pointed beyond 

the prevailing "service" notion of 

legal aid as episodic ad hoc representation 

in court by generalist lawyers. 

Instead these new initiatives envisioned 

"strategic" operations of a 

scale, scope, and continuity that 

enabled lawyers to acquire specialised 

expertise, coordinate efforts 

on several fronts, select targets and 

manage the sequence and pace of litigation, 

monitor developments and 

deploy resources to maximise the 

long-term advantage of a client 

group. The notion was to relieve disadvantaged 

groups from dependence 

on extraordinary, spontaneous 

personal interventions and thus to 

enable legal work to be calculating 

and purposive rather than atomistic. 

Public interest litigation has promoted 

important social changes, 

raised public awareness of many 

issues, energised citizen action, 

The dominant themes 

of "reform" have 

become informality, 

conciliation and 

alternative institutions 

rather than 

vindication of rights 

through adversary 

processes in 

mainstream 

adjudicative 

institutions… 

ratcheted up governmental accountability, 

and enhanced the legitimacy 

of the judiciary. But judiciallyorchestrated 

public interest litigation 

has proved only to be a frail 

vessel for enlarging access to justice 

by empowering disadvantaged 

groups. Among its limitations are 

an inability to resolve disputed 

questions of fact; weakness in 

delivering concrete remedies and 

monitoring performance; reliance 

on generalist volunteers with no 

organisational staying power; and 

dissociation from the organisations 

and priorities of the disadvantaged. 

While affirming and dramatically 

broadcasting norms of human 

rights, the courts frequently were 

unable to secure systematic implementation 

of these norms. 

Apart from failures of implementation, 

judicially-supported, public 

interest litigation aroused considerable 

resistance both from those who 

opposed its program and from those 

who were discomfited by the re-casting 

of the judicial role. However, 

there were some judges that avidly 

promoted public interest law and, as 

we noted earlier, they too were 

entranced by the image of informal 

conciliatory justice brought to the 

masses by the charismatic or expert 

outsider. In his 1976 report, Justice 

Bhagwati, the foremost judicial proponent 

of public interest litigation, 

proposed one-day forums to settle 

pending cases. 

As we shall see, these forums, envisioned 

as pro-active legal aid, soon 

took on a very different character. 

II. The shift to informalism 

The proponents 

As the surge of public interest 

law activity leveled off, the reform 

energies that had fueled its growth 

found new channels. Where prominent 

judges had been patrons and 

instigators of public interest litigation, 

their successors have become 

promoters of Lok Adalats. The dominant 

themes of "reform" have 

become informality, conciliation and 

alternative institutions rather than 

vindication of rights through adversary 

processes in mainstream adjudicative 

institutions…. 

The 'character traits' 

The early Lok Adalats approximated 

a standard template, although 

as we shall see there are many new 

variations. Cases on the docket of a 

local court (or tribunal) were, with 

the consent of one or both of the parties, 

transferred to a Lok Adalat list. 

At an intermittent one-day "camp" 

typically on a weekend day, attended 

by judges and other officials and promoted 

with considerable hoopla, the 

cases are called before a mediator or 

panel of mediators. The mediators 

are typically retired judges or senior 

advocates. 

The first Lok Adalat was held in 

1982. As of March 1996, some 13,061 

Lok Adalats had been organised 

nationwide and some 5,738,000 

cases were resolved there (about 440 

40 


LOK ADALATS 

per Lok Adalat). Twenty-one 

months later the total has risen to 

some 17,633 Lok Adalats and 6, 

886,000 cases settled. That means 

than in the 21-month period, 4,572 

Lok Adalats were held - some 218 

per month or 2,600 per year and that 

approximately 1,148,000 cases were 

resolved (about 251 per Lok Adalat.) 

Unpublished data from the National 

Legal Services Authority shows that 

as of the end of 1999, 49,415 Lok 

Adalats were held with 9,720,289 

cases being settled (about 198 per 

Lok Adalat). By November 30, 2001 

there were 110,600 Lok Adalats that 

had settled 13,141,938 cases (about 

119 settled per Lok Adalat). It is 

unclear whether this seemingly continuous 

drop in the number settled 

per Lok Adalat is due to the increasing 

number of Lok Adalats, less success 

in achieving resolution, fewer 

cases, smaller numbers of mediators, 

or more difficult and complex 

cases. There appears to be considerable 

regional variation. In the state 

of Gujarat from March 1982 to the 

beginning of January 2000, 14,766 

Lok Adalats were held; nearly 90 

percent of all cases "dealt with" were 

settled. In contrast during the first 

quarter of 2001, 651 Lok Adalats 

were conducted in Kerala with only 

39 percent of the cases settled. 

Clearly there is much variability 

here and a larger empirical examination 

of these patterns is required 

before any final conclusions can be 

made. 

What sorts of cases come before 

Lok Adalats? One set of sophisticated 

commentators tells us that 

Lok Adalat cases are "limited to 

auto accidents and family matters". 

But the dockets are considerably 

more varied, including vast numbers 

of ordinance violations and 

minor criminal cases. While dockets 

vary from one place to another, 

generally they are shaped to capture 

cases involving the poor. Lok 

Adalats, says one proponent, "specially 

cater to the needs of weaker 

sections of society." They are for 

"poor people", especially for petty 

non-contested cases. Many proponents 

of Lok Adalats see them not 

as a species of court reform but as a 

species of legal aid, one particularly 

suited to the poor, oppressed, and 

female. Like judicially-inspired 

Lok Adalats are typically not able to attract cases with 

heavy financial stakes or important civil litigation. 

Private litigation [has] remained totally outside the 

ambit of Lok Adalats 

public interest law, the theme is 

bountiful caring for the weak, but 

the movement is centered not 

around eminent judges and prominent 

lawyers, but district judges, 

social workers and local advocates. 

Lok Adalats are typically not 

able "to attract cases with heavy 

financial stakes or important civil 

litigation. Private litigation [has] 

remained totally outside the ambit 

of Lok Adalats". The Lok Adalat 

device has occasionally been used 

for mass settlement: resolving two 

separate takings cases where residents 

of two different areas received 

approximately 1.5 billion and 186.8 

million rupees respectively; and 

more recently sugar cane growers 

and laborers were awarded 12 million 

rupees in a Lok Adalat brokered 

settlement…. 

Discovery and award-settlements 

….Generally, the largest cases in 

Lok Adalats are claims by accident 

victims under the Motor Vehicle Act. 

This is the only type of case counted 

separately and statistics are compiled 

of the amount of compensation 

awarded in these cases. Thus, the 

Ministry of Law stated at the end of 

1997 that some 349,710 motor vehicle 

accident claims had been resolved by 

Lok Adalats and some Rs 1160 crores 

awarded (this is an average award or 

Rs. 33,190). Our data from the 

National Legal Services Authority 

show that by the end of November 

2001, 825,255 of these cases had settled 

at an average award of 39,432. 

Lok Adalats therefore resolved over 

10,000 motor accident cases per 

month during the last four years 

(475,545 in 47 months from January 

1998 to the end of November 2001)- 

and at higher amounts….. 

Forums similar to Lok Adalats are 

conducted by voluntary groups as 

well as by the courts. For example, 

the principal activity of the People's 

Council for Social Justice (PCSJ) in 

Kerala, is conducting Neeti Melas (festivals 

of justice). Staffed largely by 

retired judges and court personnel, 

PCSJ urges people to avoid the courts 

and avail themselves of its services 

instead. Rather than a departure 

from the official norms, it proposes to 

give disputants' access to a purer, 

conciliatory, non-adversarial forum 

for the application of those norms. In 

15 years the PCSJ has conducted 227 

Neeti Melas and has settled over 8,000 

motor accident cases…. 

Pre-fieldwork data on Lok Adalats 

….Just five years after the judiciary 

began to sponsor Lok Adalats, 

Parliament enacted The Legal 

Services Authorities Act of 1987, 

which was amended in 1994 and then 

again in 2002. The Act visualises a 

regime of Lok Adalats with jurisdiction 

over "any matter" composed of 

judicial officers and other qualified 

members, authorised to proceed 

according to its own procedures, 

which need not be uniform and to be 

"guided by the principles of justice, 

equity, fair play and other legal principles." 

Rather than an award in 

accordance with the law, the Lok 

Adalat is instructed to "arrive at a 

compromise or settlement." The 1994 

amendments to the Act mandate that 

the compromise "shall be final and 

binding on all the parties to the dispute, 

and no appeal shall lie to any 

court against the award". (The 2002 

amendments reiterate this principle 

under section 22E.) 

Lok Adalats differ sharply from 

the earlier nyaya panchayats. The 

jurisdiction of Lok Adalats is not 

confined to specific categories of 

minor matters, but can extend to 

"any matter". Instead of the popularly 

elected panches, Lok Adalat officials 

are nominees of the state 

administration. Where the panches 

could issue decisions, the Lok Adalat 

panelists - at least until now - can 

only "determine and arrive at a compromise 

or settlement". Table 1 summarises 

some of the differences 


LOK ADALATS 

between Lok Adalats and various 

past and present forums for providing 

access to justice for everyday 

troubles and injuries. 

This campaign to institutionalise 

Lok Adalats comes in spite of (and 

perhaps because of) the fact that little 

is known about their performance. 

One serious issue that immediately 

comes to mind is whether 

this "informalism" disadvantages 

weaker parties. The few available 

accounts raise a host of serious questions. 

For example, how genuine is 

the "consent" by which the parties 

consign their cases to Lok Adalats. 

Robert Moog portrays pressures on 

officials to produce large numbers 

of cases for Lok Adalats, leading in 

some instances to the institution of 

criminal cases for the purpose of 

having them resolved there. Also, 

cases that have in effect been 

resolved in the courts are assigned 

to Lok Adalats to inflate the total of 

resolutions there. Clearly, there are 

career incentives for officials to produce 

the cases and settlements 

desired by their superiors…. 

The Lok Adalats' achievement, 

then, is to provide an official process 

for claimants to secure a portion 

of their entitlements without 

the aggravation, extortionate 

expense, inordinate delay and tormenting 

uncertainty of the court 

process. To secure this, they yield 

up discounts. Assume, for example, 

a motor accident claimant who 

would secure Rs 50,000 compensation 

[and accumulated interest from 

date of filing] after an expensive 

ten-year struggle in the courts. 

Table-1 

How genuine is the 

"consent" by which 

the parties consign 

their cases to Lok 

Adalats? Robert 

Moog portrays 

pressures on officials 

to produce large 

numbers of cases for 

Lok Adalats 

Salient Features of Forums for Everyday Justice in India 

Imagine that this same claimant 

might be able to get half that 

amount at a Lok Adalat in just a few 

months. This is clearly a preferable 

outcome for the claimant, given the 

legal costs avoided and given the 

appropriate discount for the futurity 

and uncertainty of the court 

recovery. Thus the establishment of 

the Lok Adalat arguably provides a 

significant benefit for a claimant in 

this situation. 

But, of course, this claimant is 

entitled not to the discounted future 

value of his claim, but to the full present 

value. What makes the delivery 

of the discounted amount a "benefit" 

is simply that the full entitlement 

can be vindicated only by 

recourse to a disastrously flawed 

judicial system that at best can 

deliver it in ten years. Thus the 

"benefit" conferred by the availability 

of the Lok Adalat is a benefit 

only by virtue of the enormous 

transaction costs imposed by the 

judicial system. And these transaction 

costs impact differentially on 

different kinds of parties. Those 

who are risk averse and unable to 

finance protracted litigation are the 

ones who have to give the discounts 

in order to escape these 

costs; those who occupy the strategic 

heights in the litigation battle 

are able to command steep discounts. 

Since the sums awarded by 

the courts fall far short of fully 

compensating the injured, the 

injured are triply under-compensated: 

first, by the inadequate level 

of compensation delivered by the 

courts; second, by the high transaction 

costs; and finally by the discounts 

they must yield to avoid the 

infliction of these costs. And, as the 

injured are under-compensated, 

injurers are under-assessed for the 

costs they impose on society for 

their risk-creating behavior and 

under-deterred from persisting in 

injurious conduct. 

The establishment of Lok 

Adalats represents the use of scarce 

reform energies to create alternatives 

that are "better" than the 

courts; but it is not necessary to be 

very good to be better than the ordinary 

judicial system. The flaws of 

the system serve not as a stimulus to 

reform it, but as a reason for setting 

up institutions to bypass it. 

Reformers take pride in delivering 

needed compensation more expeditiously 

to some of the victims. Lok 

Adalats are then an instance of a 

Traditional District Courts/ Arbitration Nyaya Hight Courts/ Lok Adalats 

Panchayat Subordinate Panchayat Supreme Court 

Courts 

Interest Litigation 

Flourished Before British Since Early Century 1940 1950-1975 1977 1982 

Personnel Communal Bureaucratically Selected by Elected by Local Appointed Judges Retired Juges 

Notables selected career Parties Electorate (legal Practitioners) Volunteers 

Norms Custom of Lex Loci (State Reflection of Statute Law State Law - with Not Known 

Applied Caste/Locality Law) Law innovative 

Sanctions Fines, Money Damages, Money Awards Fines Money Damages, Enforced by 

Imposed Excommunication Injunctive Relief Enforced by Injunctive Relief court 

Court 

Accountability Politics of Appeal within Enforcement by Appeal to No Appeal No Appeal 

and Review Reconsideration Judicial Hierachy Court Courts 

Representation Self, Factional Lawyers Lawyers Self Lawyers Self/Lawyers 

Spokesman 

42 


LOK ADALATS 

A Lok Adalats in 

progress 

debased informalism - debased 

because it is commended not by the 

virtues of the alternative process 

but by avoidance of the torments of 

the formal institutional process. 

III Visits to the field 

….B. Types of Cases Heard and 

the Process of Adjudication 

The Pension and Electricity Lok 

Adalats 

Although the Pension and 

Electricity Lok Adalats deal with 

matters distinct from one another 

similar patterns are present in how 

these two forums operate. The 

Pension Lok Adalat handles cases 

brought by retired civil servants who 

are disputing the pension amount 

allocated to them by the government 

department for which they worked. 

The Pension Lok Adalat also hears 

claims initiated by current civil service 

workers seeking a promotion or 

increased monetary compensation. A 

judicial panel consisting of a retired 

High Court judge, the General 

Secretary of the Retired Employees 

Association, and a practicing lawyer 

oversee these matters. The Pension 

Lok Adalat was statutorily created by 

our selected state in 2001, as a "permanent 

and continuous" body. 

According to the presiding judge, 

"500 cases have been settled in the 

last year and a half," in which each 

claimant received the requested 

amount from the governmental 

department. This statistic, however, 

is contrary to the information provided 

by the Pension Lok Adalat 

office. According to the official 

data, as of December 12, 2002, 605 

cases had been referred to the 

Pension Lok Adalat, with only 214 

reaching settlements. 376 cases were 

adjourned, three were returned to 

the regular courts, and 12 had yet to 

be heard. 

Irrespective of this disparity, the 

presiding judge of the Pension Lok 

Adalat repeatedly expressed hostility 

towards the presence of lawyers 

in these forums and noted that were 

it not for them, the number of settled 

cases would dramatically 

increase. "Lawyers are famous," the 

judge commented to Krishnan, "for 

dragging on cases." But of the twenty-three 

cases Krishnan observed 

only three claimants even came 

accompanied by lawyers. Moreover, 

in thirteen cases (none of which had 

lawyers involved), the party guilty 

of being unprepared and delaying 

matters was the government agency. 

In six consecutive cases, the state's 

education department representative 

asked the panel for postponement, 

prompting the presiding 

judge to shout, "why the hell aren't 

you people ready? Is this how you 

run things over there?" 

(Nevertheless, the motion for delay 

in each case was granted.) And in 

that morning session, just three cases 

were resolved, with the remaining 

postponed to another sitting. 

The government's lack of preparedness 

also could be found in the 

Electricity Lok Adalat. This forum 

was established in 2001 to settle disputes 

between consumers and the 

state electricity company. According 


LOK ADALATS 

to the presiding judge of the 

Electricity Lok Adalat, 90 percent of 

the cases involve billing disputes - 

mainly claimants accusing the electricity 

company of excess charges. 

The remaining matters deal with the 

company seeking compensation 

from individuals that the company 

contends have stolen electrical 

power. The day that Krishnan 

observed this Lok Adalat 25 cases 

were on the panel's docket. Thirteen 

resulted in a settlement while 10 

were postponed at the request of the 

company; two cases did not reach 

any resolution and the parties agreed 

to litigate these matters in the regular 

state court. 

Aside from the government not 

being prepared in nearly half of the 

cases in the Electricity Lok Adalat, 

there was another curious aspect to 

this proceeding. Of the 25 cases on 

the docket for that day, three 

involved the company making theft 

charges against individual consumers. 

Assisting the company in the 

presentation of its case to the twomember 

judicial panel was the police. 

Krishnan interviewed the police representative 

at the Lok Adalat who 

explained the reason for law enforcement's 

participation. This official 

stated that typically when the company 

lodges a theft complaint against 

a private individual, protocol 

requires that a formal report be filed 

with the police department. A special 

police division investigates the complaint 

and if the charges are substantiated, 

then these findings are 

released to the company. At that 

point the company may pursue a 

civil liability claim in the district 

court, but if it and the defendant 

agree, then they may bring the case 

to the Electricity Lok Adalat for a 

speedier resolution. (The police 

reserve the right to file criminal 

charges against the individual with 

the city prosecutor.) 

But the police's role does not end 

with the investigation of the theft 

matter. As Krishnan observed, in the 

Electricity Lok Adalat the police representative 

served as the lead advocate 

for the company. This official 

would explain the case to the judicial 

panel, question the defendant on the 

specifics of his actions, and make 

penalty recommendations. 

Meanwhile, none of the defendants/ 

44 

consumers Krishnan observed had 

legal representation, nor were they 

able to present adequate responses to 

the satisfaction of the judicial panel 

or to the police. As the police representative 

explained to Krishnan, 

"because we are familiar with these 

types of matters, it is quicker and better 

if we [rather than the company] 

deal with these cases." These criminal 

matters in the Electricity Lok 

Adalat, however, were not the only 

cases in which the police were 

involved. In at least a half dozen 

billing disputes the police representative 

argued on behalf of the company 

against the consumer. In the 

last case of the day, one that happened 

to be the most heated dispute 

of all those on the docket, the police 

official directly denounced the consumer 

for wasting the panel's time 

and urged him to pay the bill once 

and for all, which the consumer ultimately 

did. Even the presiding 

judge of the Electricity Lok Adalat 

conceded in an interview following 

the proceedings that claimants may, 

at times, "feel somewhat intimated" 

with the police being present. 

General Lok Adalats 

Two different General Lok 

Adalats in two different cities, where 

in each setting the respective chief 

judge served as head of the judicial 

panel, were observed during the 

course of the field research. The first 

General Lok Adalat observed was 

located in a district about 20 miles 

outside of the capital city. The morning 

set of cases involved several 

divorce matters. Before even going to 

the Lok Adalat room, couples would 

enter the presiding judge's private 

office, where their respective lawyers 

presented the reasons for the divorce 

application. In this "pre-Lok Adalat" 

hearing, the judge explained to the 

participants that his main goal was to 

see if the marriage could be salvaged. 

"Especially if there are children," he 

explained, "we want to try to do 

whatever we can to achieve reconciliation." 

The expectations of the parties, 

Scope for compromise 

In Manipur, Lok Adalat has become a regular feature for 

claims of motor accidents, hence, there is scope for 

settlement of other disputes as well 

Manipur implemented the free 

legal aid scheme in late 1980s. A 

board patronised by the government 

was constituted known as the Manipur 

Free Legal Aid and Advice Board. The 

scope and objectives of the free legal 

aid board are granting free legal aid to 

the needy litigants through a panel 

lawyer to represent them in the case, 

conciliation and settlement of disputes 

at pre-litigation stage and to educate 

the people on their legal rights by holding 

legal aid camps at village level. 

Subsequently, government enacted 

the Legal Services Authorities Act, 

1987. It came into force in 1995 that 

gave Lok Adalat legal status and its 

decision was made final and binding 

on all the parties. However, the disputes 

can be taken before the Lok 

Adalat only if both parties agree to submit 

to its jurisdiction. 

In Manipur, mode of settlement 

of disputes through Lok Adalat 

became a regular feature for claims 

filed before the Motor Accident 

Claims Tribunal, Manipur. 

However, since in Lok Adalat there 

is no inquiry or trial, the agent of 

the insurance company in collusion 

with the claimant, sometimes managed 

to get benefit out of it. Though 

the Lok Adalat lends itself to easy 

settlement of motor accident claims 

there is scope for settlement of other 

disputes as well. Partition suits, 

damages and matrimonial cases can 

be easily settled before Lok Adalat 

as the scope for compromise 

through an approach of give and 

take is high in these cases. Disposal 

of a case through a regular court of 

law not only involves higher expenditure 

but also delay. Generally the 


LOK ADALATS 

however, during these pre-Lok 

Adalat hearings were far different. In 

the observed cases, formal separation, 

not reconciliation, was the main 

priority of the parties. In one notable 

case, a middle-class couple came into 

the room accompanied by their two 

young children and almost immediately 

began screaming at one another 

as well as to the judge. The wife 

accused the husband of having an 

extra-marital affair and emotionally 

abusing her, while the husband 

sobbed that his wife had made a false 

criminal complaint against him, 

which had resulted in his arrest. 

Throughout this whole episode, 

which lasted nearly half-an-hour, the 

children sat quietly crying while the 

lawyers unsuccessfully attempted to 

calm their clients down. 

As this commotion was occurring, 

the presiding judge chatted 

with Krishnan intermittently about 

how he had seen this couple now for 

the third time, and how they had still 

refused to try to reconcile. At that 

point, the husband interrupted, 

litigants are anxious to settle the 

disputes as early as possible. If the 

parties to a dispute are apprised of 

the legal position they may agree to 

settle it amicably. 

Another dimension of Lok 

Adalat is that in getting the relief as 

sought for in the law court usually 

takes time and as such the aggrieved 

party prefers to get awards/relief 

from the Lok Adalat even though 

yelling at the judge, "Sir, please, reconciliation 

is not possible!" Yet, the 

judge continued to explain that this 

type of "venting session" was good 

for the couple's emotional health. He 

then called the children over to sit 

next to him and asked how they felt 

about their parents' fighting. Too nervous 

to speak, the eight-year-old boy 

shrugged, while his five-year-old sister 

held her brother's hand continuing 

to weep. In a firm tone, the judge 

then noted to the parents: "See - is 

this how you want your children to 

see you? Is this nonsense you are 

fighting about really good for them? 

A boy and a girl need both a mother 

and father - this fighting is not good 

at all." With that, the judge ordered 

the couple to attempt to work their 

problems out and to return next 

week if they could not resolve their 

differences…. 

….The disregarding attitude 

towards lawyers was particularly 

highlighted during the afternoon session 

where Krishnan observed a case 

involving 26 claimants who were 

the party has got lesser amount to the 

relief of the law courts. In short, the 

aggrieved party always becomes looser 

at the Lok Adalat as compared with the 

relief from the law courts. 

Khaidem Mani, President, All 

Manipur Bar Association, opines that 

the Lok Adalat is more useful in settling 

disputes relating to the motor accident 

claims but nothing has been seen in 

other cases. Under the Legal Services 

Authority Act, 1987 there is one state 

level committee known as Manipur 

State Legal Services Authority and in 

respect of the nine districts of Manipur 

the district level legal services authorities 

are functioning. Out of these nine 

district level committees, district level 

legal services authorities of Imphal East 

and Imphal West districts are effectively 

functioning in the state. And the rest 

have been found functioning only in the 

paper. However, there has not been a 

permanent Lok Adalat in Manipur that 

can be approached by any party for a 

dispute involving public utility services 

even though it has been specifically 

provided by the Act. 

—Meihoubam Rakesh 

seeking compensation from a stateowned 

bus company for injuries they 

sustained during a violent traffic 

accident. Assisting the district judge 

in the adjudication of this matter was 

a social worker and another judge of 

that same court. The victims were 

uneducated, rural villagers who, 

through their lawyer, accused the 

bus driver of gross negligence. On 

one side of a table separating the parties 

were several bus company officials 

and their lawyer; on the other 

side were the line of victims who all 

were represented by the same 

lawyer. The claimants' lawyer would 

present each victim who one-by-one 

told the three-judge panel of the 

injuries he/she incurred. The 

claimants' lawyer would then provide 

to the panel medical reports and 

in some cases x-rays of each victim's 

injuries. The panel would review the 

reports and then the chief district 

judge would hold each x-ray up to 

the light and attempt to decipher the 

seriousness of the injuries. When 

Krishnan asked if he had medical 

training to read the x-rays, the judge 

noted that since he had been 

involved in many of these types of 

cases in the past, he had developed a 

"knack" for this task. 

In terms of the settlements, the 

negotiations followed a definite pattern. 

The bus company would propose 

a figure, the claimants' lawyer 

would (half-heartedly) counter, the 

bus company would then state 

another figure, and in three-fourths 

of the cases observed, the district 

judge would actively support the 

company's proposed amount. (In 

those matters where the judge did 

not completely endorse the company's 

offer, he negotiated a settlement 

where the final figure still came close 

to the company's second proposal.) 

Three other observations merit mention. 

First, when the claimants' 

lawyer ultimately accepted the settlement, 

he would do so without 

even consulting the clients. Second, 

the bus company's lawyer rarely 

spoke during any part of the proceeding; 

the company officials 

engaged directly in the negotiations. 

And third, on average, each individual 

case took anywhere between 15 

seconds to two minutes to resolve. 

After the proceedings, Krishnan 

questioned the claimants' lawyer 


LOK ADALATS 

about the assembly-line manner in 

which he handled these cases. Before 

answering, the lawyer made it a 

point to note that professionally he 

struggles to attract clients and is further 

hindered by his lack of legal 

experience. One way he has sought 

to improve his contacts as well as his 

professional capital is by working in 

Lok Adalats. Because Lok Adalats 

are promoted by people who the 

lawyer perceives as having the 

power and the ability to help him 

professionally, he makes it a point to 

work in these forums. Eventually, 

however, he did confess that the 

powers-that-be, he felt, evaluated 

his productivity (and that of the Lok 

Adalat) on the number of cases disposed 

during a Saturday session…. 

…..After they left the courtroom, 

Krishnan spoke separately to the 

lawyers for both sides. The worker's 

lawyer expressed great frustration 

that the judge "did not even bother" 

to look at the receipts of all the medical 

expenses incurred by his client. 

He noted that even if his client 

reduced his financial demands by 

one-half, there still would be no way 

the worker could cover these costs on 

his own. "At least the other judges 

[i.e. those on the original Lok Adalat 

panel] were listening to my client's 

difficulties. We did not even get to 

make our case here." The employer's 

lawyer also was dismayed about 

what had just occurred. "How can he 

[the employer] settle or reach a compromise 

if he has no money to give? 

Why we even bother to come here [to 

the Lok Adalat], I just don't know." 

The resignation expressed by this 

second lawyer turned out to be a 

rather common sentiment. Several 

lawyers stated that while on occasion 

participating in Lok Adalats did 

bring about quicker settlements for 

their clients, in most cases judges 

refused to take the time to study 

what often were complex issues, 

examining, for example, important 

evidence in a very cursory manner or 

simply not at all. Indeed, frustrated 

by what they perceived as the heavyhandedness 

of the chief judge, four 

different lawyers interviewed said 

that they have begun to engage "quietly" 

in tactics that they hope will 

eventually undermine the Lok 

Adalat process. For instance, after 

being lectured by the chief judge for 

frustrated by what 

they perceived as the 

heavy-handedness of 

the chief judge, four 

different lawyers 

interviewed said that 

they have begun to 

engage "quietly" in 

tactics that they hope 

will eventually 

undermine the Lok 

Adalat process 

not having his client present in a 

property law dispute for now the 

third time, a reprimanded lawyer 

pulled Krishnan aside telling him 

that he purposely instructed his 

client not to show up at that day's 

Lok Adalat hearing. Since the Legal 

Services Authority Act, which governs 

Lok Adalats, requires that disputing 

parties sign onto all compromises 

reached, so long as this 

lawyer's client continued to refuse to 

make himself available no pact could 

be finalised. The ultimate goal, the 

lawyer indicated, was to put this case 

back into the regular courts, where 

he believed his client had the best 

chances of success. 

Another way that lawyers have 

exhibited this passive resistance is by 

not showing up themselves to a Lok 

Adalat hearing. The following week, 

for example, Krishnan returned to the 

City Civil court where he witnessed a 

divorce proceeding involving a 

Muslim couple…. 

….Following the adjournment of 

Table-2 

Year 

Number of Excise Cases 

Settled by High Court Lok 

Adalat 

this Muslim divorce case, Krishnan 

interviewed first the husband and 

then the wife. While the husband 

sidestepped the question of why his 

lawyer did not appear, the wife 

directly stated that her lawyer had 

purposely not attended for fear that 

the wife would not receive a fair 

hearing in this forum. According to 

the wife, her lawyer had little confidence 

that the judicial panel (particularly 

if the chief judge was present) 

would show the lawyer the 

deference he believed he deserved. 

The lawyer also apparently stated to 

the wife that it would be the judge's 

biased beliefs that would dictate the 

outcome rather than the principles of 

equity or law. Since the Lok Adalat 

lacked any enforcement power to 

make the lawyer attend, the plan was 

that eventually the case (after going 

through several postponements) 

would be re-directed to the regular 

state courts where the lawyer 

believed he would have a better shot 

at obtaining a more favorable outcome 

for his client. … 

The discord that is present 

between judges and lawyers within 

both the General Lok Adalats seems 

to reflect a deep tension that proponents 

of this institution to date have 

not fully acknowledged. In the next 

section we turn to examining another 

type of forum, the High Court 

Lok Adalat, where judge-lawyer 

animosity has similarly serious 

implications for the claimants seeking 

to access justice. 

The High Court Lok Adalat 

The High Court Lok Adalat is an 

interesting creature. Established in 

2000, it meets one weekday a month 

in a building located next to the 

High Court that houses the state 

Legal Services Authority 

Commission. This particular Lok 

Adalat seeks to dispose of the thousands 

of cases that continue to backlog 

the High Court. The matters that 

Total Amount of Money 

Awarded (Rupees) by 

High Court Lok Adalat 

2000 44,810 19,373,021 

2001 46,332 14,512,905 

2002 10,214 2,049,100 

2003 (Jan 1-May 31) 2914 540,635 

46 


LOK ADALATS 

typically come before the High 

Court Lok Adalat are petty criminal 

cases that the Indian penal code 

characterises as compromise-able, or 

"compoundable." In American 

terms, the institution serves to facilitate 

plea bargains between the state's 

public prosecutor and the petty 

criminal defendant. (Where the victim 

is an individual, the public prosecutor 

generally consults with the 

victim before striking any deal.) 

There is a three-judge panel that presides 

over the High Court Lok 

Adalat: a retired High Court judge, 

along with two advocates. As with 

the other Lok Adalats, at least one 

member of the panel must be a 

woman, but the statutory requirement 

that the panel includes a social 

worker was not strictly enforced. 

On the day that Krishnan traveled 

to the High Court Lok Adalat, 16 

cases were scheduled for hearing. Yet 

before the session began, the presiding 

judge informed Krishnan 

that he was very skeptical of reaching 

a settlement in any case. "These 

damn lawyers are just not showing 

up," he commented. "They are following 

the order of the [state] Bar 

Council not to come and work in the 

Lok Adalat." As it turned out, half of 

the defence lawyers did attend that 

day's session with their clients, but 

the proceedings were delayed 

because the public prosecutor 

arrived over 30 minutes late - much 

to the dismay of the presiding judge 

who quietly remarked to Krishnan, 

"these lawyers are all alike, regardless 

of who they work for. Delay is all 

they know." 

Eventually the session began; the 

separate defendants had their respective 

counsel present and the judicial 

panel called each individual up oneby-one. 

Six of the cases involved 

"excise" matters, or otherwise put, 

state charges against a defendant for 

selling alcohol without a licence. On 

this issue of excise, the Indian penal 

code is both complex and technical. 

Under some circumstances excise 

violations will be compoundable 

(e.g., when the amount of alcohol 

sold is under 10 litres), while others 

will not be. In five of the six cases, the 

violations were found to lie outside 

the High Court Lok Adalat's jurisdiction, 

much to the ire of the presiding 

judge who scolded the lawyers on 

both sides for not knowing this 

beforehand. Yet in every one of the 

cases that was dismissed, the judicial 

panel scrutinised the statutes to see if 

there was any way of fitting the 

respective cases into one of the compoundable 

categories. In his eagerness 

to find a way to resolve more 

than just one dispute, a judicial officer 

not on the bench but who happened 

to be visiting this session and 

serving as an active advisor to the 

panel stated in an exasperated voice, 

"I really think if we read the provision 

this way, we can make 

this work." 

If there was great frustration that 

almost all of the excise cases failed to 

meet the penal law's compoundability 

requirement, then consider how 

the panel reacted when a different 

type of case that could be settled, was 

not. The last case of the day involved 

two defendants who already had 

been convicted in criminal court of 

violating Section 354 of the Indian 

penal code. That provision states that 

it is a crime to: 

Assault or [use] criminal force to 

a woman with the intent to outrage 

her modesty - whoever assaults or 

Hurried affair 

I 

n West Bengal, Lok Adalats are held at both the High Court and at city and 

district levels mostly dealing with civil matters. I act as judge at the Lok 

Adalats at the district level. At the city/civil levels, Lok Adalats are held on 

the last Saturday of every month. The maximum number of cases which 

come up are regarding financial disputes involving banks and services 

providers such as mobile phone companies. I have asked the various lawyers 

involved in these cases about why such a large proportion of the cases are 

financial disputes, but they could not give me any convincing answer. 

Some matrimonial cases also come up. These cases are sent from the family 

court for final settlement with the consent of both the parties. But the 

problem is that Lok Adalats do not look into the matter in detail. They just 

endorse what the family court has already directed. For example, a family 

court in a matter of matrimonial dispute directed a husband with an income 

of Rs 5000 a month, to pay his wife a monthly sum of Rs 4000. The husband 

may have agreed to the amount before the family court in order to wriggle 

out of the case, but later on it becomes difficult for him to keep his word. The 

case lands up before the Lok Adalat in the wake of default on the part of the 

husband. Had the financial situation of the litigants been enquired properly, 

such a situation would not have risen. So when such cases come before the 

Lok Adalat, the Adalat needs to look into the cases in greater depth. 

In some of the districts like Hoogly, Howrah etc., Lok Adalats are held 

after court every day. The caseload largely consists of pending cases brought 

in by lawyers for early disposal. This may not serve the aim with which Lok 

Adalats are formed. 

—Sutapa Chakrabarty 

uses criminal force to any woman, 

intending to outrage or knowing it to 

be likely that he will thereby outrage 

her modesty, shall be punished with 

imprisonment of either description 

for a term which may extend to two 

years, or with fine or both. 

Both of the defendants had been 

sentenced to a prison term and 

ordered to compensate the victim 

financially, but they were appealing 

their case to the High Court. On 

appeal the High Court affirmed the 

lower court's prison sentence, however 

it recommended to the public prosecutor 

and the defence lawyers that 

they try to hammer out an agreement 

on the issue relating to compensation. 

Also present at this hearing was 

the assaulted teenage victim and her 

older, very feeble father. The judicial 

panel summoned the two, along with 

the public prosecutor and the defendants' 

lawyers to the bench. The 

judges urged the parties to come to 

some sort of financial settlement so 

the matter could be disposed. As the 

prosecutor and defence lawyers 

began to negotiate, the victim's 

father requested to speak. He asked: 

if the lower court's prison sentence 


LOK ADALATS 

was affirmed, why did its original, 

levied compensation award require 

any adjustment at all? He explained 

that his family was poor and struggled 

to eke out an existence. 

Lowering the award, even by just a 

few hundred rupees, would have a 

significant impact on him, his wife, 

and his children. The presiding 

judge tried to explain to the father 

the bigger picture of why it was 

important not to clog the High 

Court with matters that could be 

easily resolved here in the Lok 

Adalat. But the father, although 

timid in the way he spoke, 

remained resolute. He would not 

agree to any reduction in compensation 

and if the case needed to be 

sent back to the High Court for a 

final decision, then so be it. 

Angered that no compromise could 

be reached the presiding Lok Adalat 

judge adjourned the matter and 

ordered the parties to resolve their 

dispute in the regular state court. 

In spite of the low number of settlements 

that occurred during 

Krishnan's visit to the High Court 

Lok Adalat, state Legal Services 

Authority officials hastened to point 

out that this day was an anomaly. 

According to these officials, 2003 

has been a banner year; in particular, 

between January 1 and May 31 

nearly 3,000 cases have settled, with 

total awards reaching over half a 

million rupees. Moreover, the staff 

at the Legal Services office proudly 

displayed to Krishnan the year-byyear 

total of excise settlements dating 

back to 2000. Table 2 illustrates 

the results. 

Upon closer scrutiny the data 

prove to be quite perplexing. We see 

that in its first year, 2000, the High 

Court Lok Adalat settled nearly 

45,000 cases, and dispatched almost 

20,000,000 rupees in awards. Just 

two years later though, in 2002, the 

number of cases settled dropped to 

about 10,000 and the awards issued 

fell to slightly over 2,000,000 rupees. 

If the first five months of 2003 are 

indicative, the 2003-year will see the 

lowest number of cases settled by 

the High Court Lok Adalat and the 

lowest amount of money awarded. 

Of course because the data from the 

Legal Services office are incomplete 

in so many ways, we are left with 

more questions than answers. For 

example, what percentage of cases 

that come before this Lok Adalat are 

actually settled? Could it be that in 

2000, 95 percent of the cases were settled, 

whereas in 2002 settlements 

occurred only 10 percent of the time - 

or vice versa? Are fewer cases settled 

today because there are fewer disputes, 

fewer claimants willing to 

agree to a settlement, greater lawyerobstinacy 

to work within these 

forums, or something else? 

The incomplete nature of the data 

collection was not restricted to the 

High Court Lok Adalat. Consider 

In 2002 a Criminal 

Lok Adalat met 192 

times and settled 

1,090 criminal 

matters. But 

according to the 

presiding judge of this 

particular Lok Adalat, 

the forum regularly 

met up to three times 

a week where 

between 40 and 50 

cases were disposed 

of in each session 

how the records bureau located 

inside the capital city's Civil Court 

Complex functions. This office keeps 

statistics on the activities of other 

types of Lok Adalats in the capital 

district. The staff provided Krishnan 

with access to a variety of records 

from 2002. For example, according to 

their data, in 2002 a Criminal Lok 

Adalat met 192 times and settled 

1,090 criminal matters. But according 

to the presiding judge of this 

particular Lok Adalat, the forum 

regularly met up to three times a 

week where between 40 and 50 

cases were disposed of in each session. 

Moreover when asked how 

many petty criminal cases were 

referred to the Criminal Lok Adalat, 

no one could provide an answer. 

Krishnan then went to observe how 

the Criminal Lok Adalat operated 

and it became apparent why the 

records office had no data on casereferrals. 

For one thing, the 

Criminal Lok Adalat is a dispute 

settlement body in name only. In 

reality all this forum does is to sign 

off on pre-arranged settlements 

reached between the state and the 

charged defendant. 

The proceeding takes place in the 

criminal courthouse, located about 

three miles away from the capital 

city's Civil Complex, specifically 

within the office of a criminal court 

judge (known as the metropolitan 

magistrate). The judge is at his desk 

while a female advocate, who serves 

as the titular second member of this 

"judicial panel," sits on the other side. 

(There is no third member present.) 

One-by-one, a defendant enters the 

judge's office escorted by a police 

officer. A clerk presents the judge 

with the defendant's file that 

explains the plea agreement reached 

with the state. The judge signs off 

on the matter and the case is reported 

as "settled." This episode takes 

just seconds to complete; once the 

judge signs the necessary forms, the 

defendant exits (presumably to jail 

or to pay a fine) and the next defendant 

comes in and the same process 

is repeated. That the Legal Services 

office finds no reason to maintain 

statistics on the number of cases 

that are referred to the Criminal Lok 

Adalat is understandable in view of 

this forum's 100 percent "settlement" 

rate. 

As an institution, the Criminal 

Lok Adalat acts more as an administrative 

rubberstamp than as a dispute 

resolution forum. There are no 

lawyers or prosecutors present. 

There is no contestation of facts or 

negotiations regarding the terms of 

the settlement. Krishnan was 

informed that meetings between the 

defendant and the prosecutor occur 

prior to the Criminal Lok Adalat 

judge signing off on the plea agreement. 

And, furthermore, he was told 

that not all of the plea-bargaining 

meetings resulted in compromise. 

However, the Legal Services 

48 


LOK ADALATS 

Authority office does not keep statistics 

of what transpires within these 

plea-bargaining meetings. We do not 

know, for example, what percentage 

of compoundable cases is settled 

beforehand and what percentage is 

tried. The district Legal Services 

office only records (and highlights) 

the supposed success-rate of the 

cases "settled" within the Criminal 

Lok Adalat. 

It is unclear why records for the 

Criminal Lok Adalat are kept in this 

manner. In civil matters the record 

keeping tends to be a bit more 

detailed but it too remains incomplete. 

For example, the Legal Services 

office noted that last year within the 

capital district 132 out of 283 civil 

and family law cases settled in pre- 

Lok Adalat negotiation meetings. Yet 

there was no breakdown on the types 

of civil matters settled or whether 

any litigants bypassed the pre-Lok 

Adalat meeting and went directly to 

the Lok Adalat itself. Separately kept 

statistics for 2002, added more confusion: 

460 out of 510 divorce cases 

were settled in the Lok Adalat; 168 

out of 200 motor vehicle accident 

cases were settled in the Lok Adalat; 

and that 142 out of 200 "other civil 

matters" (mainly property disputes) 

were settled in the Lok Adalat. 

Furthermore, the Legal Services 

office had other rather puzzling data. 

In Bank Adalats - dispute resolution 

forums intended to bring about compromise 

between customers who 

have a grievance against the Banks of 

India - only 181 out of the 800 cases 

settled in 2002. In contrast, the district's 

Water Company Adalat, which 

hears cases from individuals with 

complaints against the city's Metro 

Water Supply and Sewage Board, 

received 152 cases in 2002 and settled 

123 of them. 

The office also noted that thousands 

of cases have been settled in 

Jail Adalats - forums that occur in the 

jail cell of inmates who have been 

accused of committing a petty criminal 

offense but who lack the 

resources to post bail and thus have 

languished in custody for, in some 

cases, years. And once every three 

months the district Legal Services 

office holds a "mega-Lok Adalat," 

which is a one day camp organised at 

the city's central sports stadium 

where anywhere from 8,000 to 10,000 

cases are brought. On average 

Krishnan was told that the settlement 

rate at these mega-Lok Adalats is 

about 50 percent. 

Yet how do we interpret any of 

this data? Along with the questions 

raised above, other issues come to 

mind. For example, how satisfied are 

the claimants that participate in Bank 

Adalats, Water Company Adalats, 

Jail Adalats, or mega-Lok Adalats - 

even when a settlement is reached? 

How effectively are the parties' 

claims being presented? Do lawyers 

act strategically vis-à-vis the judges 

The evidence we 

have gathered and 

the queries we raise 

place into question 

both the 

effectiveness and 

the ultimate fairness 

of Lok Adalats 

as we witnessed above? Are judges 

the dominant figures parsing out justice 

as they see fit? And perhaps most 

importantly, has the desire for 

increasing the number of cases settled 

so consumed those working 

within the process that they have 

lost focus on the substantive, concrete 

concerns of the average 

claimant? 

The evidence we have gathered 

and the queries we raise place into 

question both the effectiveness and 

the ultimate fairness of Lok 

Adalats. As we have found, the Lok 

Adalat is not a single institution, but 

a cluster of kindred institutions. Not 

only are new variants evolving, but 

within each, those who operate them 

are improvising and new patterns 

are emerging. In spite of the traditionalistic 

reference of the name, 

there is little drawing on indigenous 

practices; and in spite of the populist 

rhetoric, there is no evident community 

input or participative character 

to the proceedings. These institutions 

tend to operate in a top-down 

fashion - scheduling, location, personnel, 

and agendas are all decided 

by the authorities who occupy their 

positions by virtue of state connections. 

These forums are dominated 

by judges both as organisers and 

presiders. Correspondingly, the role 

of lawyers is notably diminished 

compared to the regular courts. With 

little lawyer input and no recourse to 

appeal, presiding officers enjoy far 

greater discretion than in regular 

state courts. On the basis of our 

admittedly limited observations, we 

note that judges are sometimes 

paternalistic, overbearing, or perfunctory 

and not necessarily more 

deliberative. 

Conclusion 

We appreciate that many in India 

share a desperate desire to improve 

the condition of the legal system. 

But we question our critics' 

unabashed acceptance that Lok 

Adalats - even with their flaws - are 

a net improvement for India's legal 

system. Lok Adalats consume 

scarce resources of money, personnel, 

attention, and energy. These 

resources might be better employed 

to address the fundamental problems 

facing the courts in India. To 

persist on the Lok Adalat track 

without critical examination of its 

costs and alternatives strikes us as 

manifesting an unwarranted pessimism 

about the possibilities for 

court reform that truly enhances 

access to justice. 

Moving target 

We anticipate that there will be further 

extensions and enlargements of 

the Lok Adalat cluster and perhaps 

refinements and cutbacks as well. 

Within the past year there have been 

additional statutory initiatives to bolster 

the Lok Adalat. In 2002 

Parliament enacted a new set of 

amendments to the Indian Civil 

Procedure Code. Among them, 

Section 89 enlarges the power of 

courts to refer cases to Lok Adalats. 

Section 89 reads: 

"Where it appears to the Court 

that there exist elements of a settlement 

which may be acceptable to the 

parties, the Court shall formulate the 

terms of the settlement and give 

them to the parties for their observations 

and after receiving the observations 

of the parties, the Court may 


LOK ADALATS 

reformulate the terms of a possible 

settlement and refer the same for - 

arbitration; conciliation; judicial settlement 

including settlement 

through Lok Adalat; or mediation. 

Where a dispute has been 

referred - for arbitration or conciliation, 

the provisions of the Arbitration 

and Conciliation Act, 1996 shall 

apply as if the proceedings for arbitration 

or conciliation were referred 

for settlement under the provisions 

of that Act; to Lok Adalat, the Court 

shall refer the same to the Lok Adalat 

in accordance with the provisions of 

sub-section (1) of Section 20 of the 

Legal Services Authority Act, 1987 

and all other provisions of that Act 

shall apply in respect of the dispute 

so referred to the Lok Adalat; for 

judicial settlement, the Court shall 

refer the same to a suitable institution 

or person and such institution or 

person shall be deemed to be a Lok 

Adalat and all the provisions of the 

Legal Services Authority Act, 1987 

(39 of 1987) shall apply as if the dispute 

were referred to a Lok Adalat 

under the provisions of the Act; for 

mediation, the Court shall effect a 

compromise between the parties and 

shall follow such procedure as may 

be prescribed." 

Under one plausible reading of 

Section 89 a court now has the 

power to steer cases into Lok 

Adalats, accompanied by the judge's 

formulation of a resolution, whenever 

the judge believes that a settlement 

between the disputing parties 

is possible, even if the parties do not 

share this opinion or consent to the 

transfer. Presumably if a settlement 

were not arranged in the Lok 

Adalat, the case would return to the 

docket of the court. But this understanding 

is rendered problematic 

by another new provision, this an 

amendment to the Legal Services 

Authority Act (LSAA) added by 

Parliament in 2002. Section 22D of 

the LSAA states: 

"The Permanent Lok Adalat 

shall, while conducting conciliation 

proceedings or deciding a dispute 

on merit under the Act, be guided 

by the principles of natural justice, 

objectivity, fair play, equity and 

other principles of justice, and shall 

not be bound by the Code of Civil 

Procedure, 1908 and the Indian 

Evidence Act, 1872." 

At least some Lok Adalats are 

thus authorised to go beyond arranging 

settlements to "decid[e]. . .a dispute 

on merit," and they are given 

broad discretion to do this according 

to their general notions of justice. 

Even without this extension of the 

mandate as mediators, Lok Adalat 

judges already possess power that 

seems overbearing and coercive to 

'The Permanent Lok 

Adalat shall, while 

conducting 

conciliation 

proceedings or 

deciding a dispute on 

merit under the Act, 

be guided by the 

principles of natural 

justice, objectivity, fair 

play, equity and other 

principles of justice, 

and shall not be 

bound by the Code of 

Civil Procedure, 1908 

and the Indian 

Evidence Act, 1872' 

the parties before them - especially 

poor and un-represented parties. 

The Indian Bar Council has been 

very critical of 22D particularly for 

allowing Lok Adalats to rule now 

on the merits of cases without the 

agreement of the parties. Further, 

many Indian lawyers worry that a 

claimant seeking justice in the regular 

state courts might end up having 

her case transferred without her 

consent to a Lok Adalat (via section 

89 of the Code of Civil Procedure). 

And once in the Lok Adalat, the 

claimant may then have a judgment 

"on merit" issued against her, which 

under section 22E of the Legal 

Services Authority Act would be 

"final and binding" with no appeal. 

In December 2002, lawyers across 

much of India went on strike to 

protest these amendments. In addition, 

the protestors filed a writ petition 

in the Supreme Court seeking to 

invalidate section 22D. In a short but 

confusing judgment the Court dismissed 

the petition and upheld the 

amendments as free of any constitutional 

infirmity. The Court went on 

to state that the amendments to the 

LSAA, including section 22D, would 

take effect once "Permanent Lok 

Adalats" were "set up at an early 

date." What "Permanent Lok Adalats" 

means is unclear. From reading both 

the 2002 amendments of the Legal 

Services Authority Act, as well as the 

Court's judgment, it appears as 

though no Permanent Lok Adalats 

have yet been established in India. 

Presumably such Permanent Lok 

Adalats would be confined to matters 

dealing with public utilities. But this 

turns out to be a potentially elastic category, 

including not only transport 

services, postal, telegraph and telephone 

services, electric and water services, 

sanitation, hospital, and insurance 

services, but also "any service 

which the central or state governments. 

. . may in the public interest . . . 

declare to be a public utility for purposes 

of this chapter." Recall that 

according to the statute that created 

our Pension Lok Adalats, these forums 

were to be a "permanent and continuous 

bod[ies]." So, is it possible now for 

Pension Lok Adalats to issue nonappealable 

judgments on the merits of 

a case? Might other Lok Adalats be 

assimilated to the "permanent" and 

"public utility" categories? Judges and 

lawyers with whom Krishnan spoke 

expressed differing views on the exact 

impact of the Court ruling and of the 

new amendments. Needless to say, 

more research (and clarification from 

judges and government officials) is 

required before knowing how these 

amendments and this judgment will 

affect those pursuing legal claims. 

These recent events underline the 

extent to which the scope and powers 

of Lok Adalats and their relation 

to other legal institutions remain 

fluid and unresolved. Such changes 

represent a series of improvisations 

by proponents trying to strengthen 

and extend what they perceive as a 

50 


LOK ADALATS 

promising institutional initiative. At 

a conference on access to justice in 

New Delhi in November 2002, 

Galanter spoke about Lok Adalats 

with a number of High Court and 

Supreme Court judges. Almost uniformly 

they regarded Lok Adalats as 

a signal success. As one judge put it, 

in a twist on Marie Antoinette, they 

are "bread for the poor. Later they 

can have cake". On the other hand, 

critics see in these moves portents of 

a dismantling of legality in favour of 

paternalistic, intuitive, "kadi justice" 

for the poor. The absence of appeals, 

the exclusion of lawyers, and the shift 

of decisional standards from "legal 

principles" to "principles of justice" 

At a conference on access to justice in New 

Delhi in November 2002, Galanter spoke 

about Lok Adalats with a number of High Court 

and Supreme Court judges. Almost uniformly 

they regarded Lok Adalats as a signal success. 

As one judge put it, in a twist on Marie 

Antoinette, they are "bread for the poor. Later 

they can have cake" 

suggest a major enlargement of the 

presiding judge's discretion and a 

robust faith that the poor have more 

to gain from benign paternalism than 

from juristic or popular legality. 

On each side the argument relies 

on assertions about the working of 

Lok Adalats that are based on supposition 

rather than investigation. We 

hope that research of the kind we 

propose will help to transform the 

debate, and the further development 

of the Lok Adalat institution, into an 

exchange in which aspirations for 

access to justice are tested by empirical 

observation and analysis. 

—Marc Galanter is Continental 

Professor of Law, London School of 

Economics and the John and Rylla 

Bosshard Professor of Law and South 

Asian Studies, University of 

Wisconsin-Madison 

— Jayanth K Krishnan is Research 

Professor of Law William Mitchell 

College of Law 

Bittersweet symphony 

The major objective of the Lok Adalats remains to provide speedy disposal and 

amicable settlement of disputes, consequently saving time and money of the parties 

and the court. But the success of Lok Adalat in the fulfillment of the stated objective 

remains disputed. Faisel spoke to members of the legal fraternity of Kashmir to find out 

the significance and effectiveness of Lok Adalats. A summary of opinions expressed: 

Mir Syed Latif (Member, Bar 

Association of Kashmir) 

The objective behind the establishment 

of Lok Adalat was to reduce 

time consumption and increase comfort 

and fast disposal of cases. But, 

there is lack of awareness about the 

Lok Adalats among the masses which 

is a hindrance in the achievement of 

its objective. Besides, the lawyers do 

not counsel their clients before taking 

the matter to the Lok Adalat due to 

which the disposal rate of the cases 

suffers a setback. Lawyers should 

help in motivating the parties for an 

amicable settlement and try to facilitate 

the disposal of the case. 

Lok Adalats were a success in 

the case of earthquake relief, but 

even in this sphere, some people are 

complaining that their claims have 

not been adequately fulfilled. As far 

as the budgetary allocations for the 

convening of Lok Adalats as granted 

by the ministry of law and justice 

is concerned, it needs to be seen if 

the cost of convening of Lok Adalats 

is actually more than what routine 

litigation would cost, if the financial 

aspect of the Lok Adalat is to be 

taken into consideration exclusively. 

Aijaz Bedar (Vice President, 

Bar Association of Kashmir) 

Parties to the dispute should be counseled 

properly before the matter is 

heard in the Lok Adalat. Generally, 

the highest rate of disposal in the Lok 

Adalats can be seen in motor accident 

claims, which is not actually required. 

Real success for the Lok Adalat system 

would have been the settlement 

of substantive litigation, which does 

not happen in reality. 

Shabir Ahmad Bhat (Joint 

Secretary, Bar Association of 

Kashmir) 

Lawyers don't have much to do in 

Lok Adalats as the parties themselves, 

with the help of the bench, arrive at a 

settlement. It is a cheap and speedy 

remedy available to the needy, but 

what is required is that senior lawyers 


LOK ADALATS 

should also assist in the settlement of 

disputes in the Lok Adalats. 

Mohd Ayub Shiekh (Activist) 

The Lok Adalats have proven to be 

a very successful attempt at 

speedy disposal of cases and dispensation 

of justice. The law needs 

to be amended to allow criminal 

cases to be included in the Lok 

Adalats, which will lead to pleabargaining, 

and speedier disposal, 

in criminal cases. 

Rahila (Law Officer, State 

Legal Services Authority) 

The State Legal Services Authority 

Act (SLSA) 1987, envisages taking 

up of the pre-litigative and post -litigative 

cases. But due to inadequate 

awareness among the public, mostly 

post-litigative cases are taken up in 

the Lok Adalats. The cases that are 

mostly settled, as far as Srinagar district 

is concerned, are motor accident 

claims, in which compensation 

worth crores of rupees has been distributed 

so far. Besides, petty criminal 

and labour matters also see higher 

rates of disposal in Lok Adalats. 

The Lok Adalats are a success as 

far as compromises, enhancement of 

maintenance, and settlement of custody 

and guardianship in matrimonial 

matters are concerned. They have 

brought respite to many women who 

were troubled by the lengthy process 

of litigation in order to attain their 

matrimonial rights. Lok Adalats have 

been a huge success in the distribution 

of relief in earthquake-hit areas 

where compensation was speedily 

distributed through Lok Adalats. 

However, in case of the recent floods 

in Kashmir, no Lok Adalat has been 

convened so far because there have 

been no claims. As a matter of routine, 

the SLSA convenes Lok Adalats 

twice a month. 

The role of lawyers in the settlement 

of disputes in Lok Adalats is 

evasive; if they can be a little bit 

more cooperative, the rate of settlement 

would be far higher. 

Puneet (Municipal 

Magistrate, Srinagar) 

The real success of Lok Adalats 

would have been in relieving the 

courts from the burden of substantial 

and serious litigations rather 

than settling of traffic matters that 

comprise a substantial part of the 

work being done by the Lok Adalats. 

As far as the settlement of matrimonial 

causes is concerned, the disposal 

rate is a meager 30 per cent or 

thereabouts. The lower effectiveness 

of the Lok Adalats in such matters 

can be attributed to the fact that 

before consigning a matter to the 

Lok Adalat, proper ground work 

with respect to the briefing of the 

parties and analysing the chances of 

settlement is not done. Besides, it 

would also be appropriate if the 

original judge can hear a case when 

it is convened to the Lok Adalat 

again, so that he or she can keep 

track of the progress in a case 

and the chances of settlement are 

maximised. 

52 


LOK ADALATS 

Crippling Lok Adalats 

As justice delivery system gets farther from people, a serious attempt like Lok Adalat to 

make justice accessible to large chunk of poor, needy and deserving too has been 

appropriated by powerful vested interests. The search for a reasonable and equitable 

justice delivery system has come to an end, writes Girsih Patel 

"We all want a Humane Legal System, but I think we sometimes forget that the largest part of humane is human. A humane legal 

system would look at the people it deals with as human beings, people with hearts and heads and lives and troubles. I think the 

biggest problem with our legal system is that often it sees the people it deals with as disembodied crimes or torts or bank accounts, 

and not as human beings. If we are ever to fix that, or set it right, we need lawyers not only with great minds, but also great heads. 

Justice and efficiency and legal craft are very good things. It is good and right and proper that you have spent three years learning 

about them. But they are incomplete. Justice need mercy, efficiency needs empathy, and legal craft needs love. And if words 

like empathy and love sound like they do not belong to the same page with a phrase like legal craft, I think that may be a sign that 

we have lost our bearings. If there is one thing I would ask you as you begin your professional lives, it is this: Do not lose your 

bearings. Use your minds and also use your hearts." 

—Prof. Bill Stuntz at Harvard Law School 

Iam in search of real Lok Adalats 

as they originated in Gujarat from 

the most sensitive heart of late 

Chief Justice of the Gujarat High 

Court, MP Thakkar, who also served 

the Supreme Court as its judge. Like 

him many of us expected Lok 

Adalats to grow and develop into 

temples of justice. Sadly, this is not 

seen anywhere in India as they are 

failing. Not that they are dead, but as 

it happens in India with other institu- 


LOK ADALATS 

tions, they have suffered total metamorphosis 

into something completely 

different, distorted and perverted. 

Unfortunately we missed a great 

opportunity to develop purely, 

indigenous people's courts of justice, 

based upon the ideals of our 

Constitution, namely democracy, liberty, 

equality, justice, fraternity and 

human dignity in furtherance of our 

Constitution's "commitment to socioeconomic 

revolution" (Granville 

Austin). The well-entrenched system 

of vested interests extending upto 

careerist legal professionals, mainly 

money minting lawyers and reactionary 

socio-economic forces, who 

co-opted emerging Lok Adalats to 

serve their narrow interests. As a 

result "We, the People of India", 

remained where we were - trapped, 

alienated, impersonal, remote, narrowly 

divided and dominated by a 

system of administration of justice in 

which justice-seeking people are the 

only "outsiders". 

Genesis of Lok Adalat 

The Lok Adalat really originated 

from the failure of the established 

legal and juridical system to provide 

effective, fast, and inexpensive justice 

with the litigant at the centre, particularly 

the huge arrears of cases 

which took extraordinarily long time 

for disposal. In most of the cases, 

common people were waiting for justice 

- many a times simply for the 

conclusion of the case not for justice. 

Again plethora of appeals, revisions, 

reviews, and the end product is 

either victory or defeat of one of the 

parties, but not satisfactory and just 

resolution of the dispute. Late Justice 

Thakkar could not bear the sight of 

waiting and begging workers, widows, 

landless labourers, Dalits or 

Adivasis cherishing hope for justice 

howsoever faint it could be. The first 

Lok Adalat was held in Junagadh 

with great preparation and remarkable 

simplicity. It was a great success 

and the idea picked up and led to 

number of Lok Adalats with the help 

of select and sensitised group of 

advocates and at different places. At 

many of them the atmosphere was 

surcharged with enthusiasm, and 

missionary zeal. In one Lok Adalat in 

north Gujarat, when the judges-cumlawyers 

asked an ordinary litigant, 

"What is your problem?" The man 

with fears in his eyes said, "For the 

first time in five years, somebody has 

asked me about my case." Many of us 

saw in this small incidence the potentiality 

of Lok Adalats to grow into 

genuine Justice-Courts of the people 

and for the people. The sole guiding 

principle of Justice Thakkar was to 

turn Lok Adalats to "less expensive, 

less speculative, less glamourised, 

more participatory, more resolutions 

oriented or dispute solving mechanisms 

that work to serve the purpose 

of justice with humanity in mind". 

A novel and exciting idea 

In one sense, we in India had some 

kind of village community or caste 

panchayats or Adalats where local 

disputes were sought to be resolved. 

The problem was that they were 

nyaya panchayats (caste/ community 

panchayats) or village panchayats 

operating within the rigid framework 

of unjust, inequitable, hierarchical 

caste-system, where justice 

among equals was possible, but not 

justice between unequal opponents. 

Equality before law was absent. On 

the other hand when the British 

established their own judicial system 

with independent courts and 

lawyers, its "equality before law" did 

please the lower castes and lower 

ranks. It had a revolutionary germ, 

namely, even a Dalit can file a case 

against Brahmin. But this was only a 

mirage. The social structure did 

affect the system and could not translate 

formal equality before law into 

substantial and real equality. The 

dominant sections and the lawyers 

hijacked the institution. Moreover, 

the system was so remote from the 

social reality and people's own world 

that it remained a totally alienated 

and impersonal system. It used to be 

said that a person who could not tell 

lies before his neighbours and relatives 

can shamelessly tell lies in a 

court of law even under oath. The 

English courts finally became the 

courts of the few and for the few 

where goddess of justice with blinded 

eyes had unequal scales. The system 

centered around professional 

judges and skilled lawyers where the 

litigants were only the passive consumers 

and recipients of whatever 

justice could trickle down. 

As against this, we could see in 

the Lok Adalats as they originally 

started working of the inner potentiality 

of overcoming the limitations 

of both traditional and British systems. 

They might bring back to the 

54 


LOK ADALATS 

centrestage the common people seeking 

justice. It can deliver justice to the 

satisfaction of both parties, given the 

help of sensitive judges and caring 

lawyers. At that time we did not consider 

Lok Adalats as only a way out 

of the arrears of cases, but much 

more than that i.e. as genuine people's 

tribunals - independent, impartial, 

participatory and more justiceoriented 

that aimed at resolving disputes 

as far as possible. 

Downtrend 

After a few successful Lok Adalats, 

the process of distortion started. The 

very same vested legal interests both 

among judges and the lawyers started 

smelling something threatening 

the very system they had created for 

themselves and their careers. They 

did not openly oppose them but 

toyed with the idea of using them to 

their advantages. Firstly, the Lok 

Adalats were found useful for reducing 

the burden of arrears of cases 

with great ease and without additional 

burden upon them. Secondly, 

to show good performance and success 

of Lok Adalats, pending cases 

which were likely to be settled or 

compromised were kept pending 

and assorted to be placed before the 

Lok Adalat. Thus, a game of numbers 

was set off. Thirdly, Lok Adalats 

came to be used by judges at all levels 

for self-image-boosting and 

career advancement by extravagant 

publicity and funfair. The simple 

puri-subji or khichdi-chhash gave 

way to multi-cuisine dishes. 

Fourthly, the lawyers who have 

already received their fees fully 

looked upon Lok Adalats as a 

method of disposing of cases no 

longer useful for them. Fifthly, the 

Lok Adalats that were meant to bring 

about resolution of dispute on the 

basis of equality, fairness, justice and 

give-and-take deteriorated in course 

of time into some kind of invisible, 

coercive agencies for brining undue 

public pressure, particularly pressure 

from the lawyers, judges, and 

the social workers present in the Lok 

Adalats for settlement despite its 

being unfair, unjust and calling for 

one sided sacrifice. Sixthly, the same 

unjust, unequal, authoritarian and 

hierarchical socio-economic structure 

of our society which was responsible 

for distorting the established 

justice delivery system engulfed the 

new system of Lok Adalats with the 

result that the poor, weak, needy and 

deserving side started losing their 

just fight to the advantage of rich, 

affluent, powerful and well off sections. 

Thus, the haves could have 

their way over have-nots. The former 

could purchase injustice at a low cost 

and with impunity. Thus, Lok 

Adalats also met the same fate as had 

happened to many other well-meaning 

institutions. Many a time, good 

institutions die before their actual 

arrival and others die on arrival as 

Many a time, good institutions die before their actual 

arrival and others die on arrival as they slowly undergo 

a decaying process or metamorphosis and grow into 

something totally different with different and 

opposite functions 

they slowly undergo a decaying process 

or metamorphosis and grow 

into something totally different with 

different and opposite functions. 

Vested interests' game 

Lok Adalats originated from nobler 

purposes and for serving the cause of 

justice and bringing it to the door of 

the people. But the concept was 

never fully examined and was 

allowed to grow haphazardly and on 

an ad hoc basis. Nobody tried seriously 

to put it in a larger and proper 

historical and socio-political context. 

How shall or should we look at the 

very concept of Lok Adalat -- merely 

as a byproduct of the failure of our 

judicial system, or as a simple device 

to dispose of the heaps of cases pending 

for years in our courts, or as an 

alternative justice-delivery system to 

be imposed from above? If this is so, 

it was bound to fail or falter sooner or 

later. It could not develop simply as 

an adjunct of the present system of 

administration of justice centering 

around passive judges and controlled 

by aggressively expensive 


LOK ADALATS 

Pubic hearing in 

environmental 

projects was accepted 

by law and now 

people's right to 

information has 

become a very 

important instrument 

for the people in the 

affairs of the nation 

lawyers. Except Justice Thakkar, and 

few other judges, and a few committed 

lawyers, others -- lawyers and 

judges - did not take Lok Adalats 

seriously. In fact, they looked down 

and ridiculed or laughed at them. 

Many reluctantly joined and soon 

they discovered as to how this could 

serve their professional purpose. The 

spirit of the institution disappeared, 

its idealism evaporated; only form 

remained along side its professional 

utility. The Lok Adalats, as conceived 

and perceived by late Justice Thakkar 

could not take deep roots in the soil. 

It did not become part of natural 

ethos, part of living law. It was never 

accepted by the judges and lawyers 

as essential part of their true functions 

as persons entrusted to take forward 

the cause of justice and fairplay 

in the society. 

How to look at Lok Adalats? 

The institution of Lok Adalat should 

be understood in the context of the 

evolution of our polity. As we have 

seen, we did have our own system of 

local and royal justice, with all its 

imperfections, injustices, and inadequacies. 

As brooding sense of injustice 

is omnipresent in every human 

being, every society does recognise 

forms of injustices and evolves its 

own methods of doing justice, 

always influenced and controlled by 

powerful interests. Still it had it roots 

in the society. The British system, 

even though based upon liberal concept 

of rule of law and equality 

before law, has merely remained an 

alien system for the vast majority of 

our people. It never became a part of 

their day-to-day life. The people by 

and large did have neither resources 

nor energy to use these courts and 

mostly were dragged into courts as 

victims or defendants. The courts 

and the law were for the people, not 

of the people. 

It was the freedom movement 

which gave new ideals of liberty, 

equality, justice, dignity, fraternity 

and democracy and which finally 

culminated into our Constitution in 

1950. Its preamble, its democratic 

institutions, its ideals, Fundamental 

Rights, Directive Principles constitute 

our "nation's conscience" and 

stood for our commitment to socioeconomic 

revolution. Our basic 

institution -- Parliament, Legislature 

and Executive - were moving 

towards people's participation 

through adult franchise and free 

elections. The 73rd and 74th 

Amendments adopted the 

Panchayati Raj institutions that were 

based upon principles of decentralisation 

of power and participatory 

democracy. The Supreme Court took 

one very important step forward by 

evolving relaxed locus standi and 

opened the gates of justice for the 

large section of invisible and inaudible 

people through Public Interest 

Litigation - a new participatory 

institution. New concept of preventive 

and remedial legal services 

came to be recognised and adopted. 

Pubic hearing in environmental projects 

was accepted by law and now 

people's right to information has 

become a very important instrument 

for the people in the affairs of the 

nation. Lok Adalats ought to have 

been understood, accepted and 

evolved in this direction - as participatory 

people's courts or centers of 

justice with best features of people's 

participation and people's perception 

and of independent, fair and 

equal justice. They could and should 

have become a part of the process of 

humanisation, emancipation and 

democratisation of law and justice. 

Of course this required clear vision, 

perception, insight and foresight, 

leadership, commitment, courage 

and strength of conviction and firm 

determination to fight against all 

odds and vested interests. This was 

not to be, and as it happened with 

most of our Constitutional institutions, 

it also overtook Lok Adalats. 

Is there no hope? 

We cannot afford to give up hope. 

The process of humanisation and 

democratisation is always slow and 

has to undergo ups and downs. The 

question is of rendering justice to the 

members of society and every society 

has to arrange for protecting 

rights, preventing or promoting 

wrongs and for settling or resolving 

disputes, both individual and collective. 

It is for one of these principal 

reasons for which state as a political 

institution came into being and if it 

ceases to discharge that function or 

fails in this, it ceases to be a state. Of 

course, justice through state courts is 

not the only way. In every society 

there are numbers of conflict -- 

resolving or dispute settling systems 

or modes for justice, and it is generally 

well recognised that resort to a 

court of law should be the last resort. 

Social resolution of disputes is generally 

preferable to official resolution 

because it is more socially 

acceptable and does not ordinarily 

leave behind bitterness. It can also be 

preventive. Lok Adalats must be 

considered as one of the agencies in 

this wide social context, not merely 

as an appendage to or corrective of 

the present system. 

Lok Adalats, if properly conceived 

and thoughtfully designed, 

have many advantages over the 

established courts. They combine 

both elements -- lawmen and 

lawyers. They are less formalised, 

less expensive, more purposive and 

directly committed to real long term 

justice. The litigating people have 

greater scope for in participation in 

the satisfactory resolution of their 

disputes. Lok Adalat can thus perform 

different functions depending 

upon different factors. They can preempt 

and remove the causes of the 

likely disputes with the assistance of 

auxiliary people's centers which can 

constantly be vigilant, and sense or 

detect possible areas of conflict or 

can encourage people to bring their 

possible or likely disputes before 

them. They can also act simultaneously 

as conciliators, mediators, arbitrators 

or adjudicators as per the 

requirements. One special advantage 

is that their decision will be made 

56 


LOK ADALATS 

easily acceptable and smoothly 

enforceable. These Lok Adalats will 

be and can be indigenous and people's 

court or tribunal originating or 

drawing inspiration from the people 

- not remote, alienated, impersonal, 

formalistic and legalistic. Like language, 

law and its courts must reflect 

the volkgeist - "spirit of the people", 

not because "spirit of the people" is 

always just and righteous, but 

because it is closer to the law of life. 

The absence of this was the bane of 

the English system in India, which 

remained largely an urban and elitist 

institution for the few, while the common 

people continued to live and 

resolve problems in their own ways. 

Lok Adalat can combine both traditionality 

of the modern and modernity 

of the tradition. 

The modern world of globalisation 

is in search of different alternative 

disputes-settlement methods for 

its trade, business and industries, and 

Indian lawyers and judges have 

become crazy and are in hurry as if 

they were evolving or creating original 

methods for the people. They do 

not know - or pretend not to know - 

that they are really trying to meet the 

rising and urgent demands and 

needs of a globalised capitalism. 

Nothing wrong in this, but search 

and zeal for effective and genuine 

people's tribunals or fora for people's 

problems must also go on simultaneously. 

Here there is an opportunity 

for a strong movement and campaign 

for Lok Adalats. Such Lok Adalats 

will have roots in the soil, easily 

accessible and acceptable to the people. 

They can perform different roles 

- preventive, negotiating, bargaining, 

compromising and resolving. They 

must retain and preserve the basic 

feature of impartial, just and fair system 

of justice, with popular participation, 

but not diverted or distorted by 

populism or guided or controlled by 

powerful vested interests of the society 

at the local level. 

What ought to be done? 

The task is not very easy. Its challenge 

has to be accepted. But we cannot 

afford to give up the idea. We 

should start at both the ends. One, 

the pending cases in different courts 

can be sorted out and these cases 

touching the essential needs of the 

people should be our focus. To 

resolve them, we should build up a 

good team of lawyers, judges and 

social workers who understand the 

social dynamics and who can withstand 

the pressure from the stronger 

elements of society. We must orient 

them towards seeking demystification 

of law. So that they start understanding 

that essence of law is substantively 

equal treatment and justice. 

At the other hand we should 

start at the grassroot level, build up 

an organised group of easily available 

law-men and others, who live 

and work in the midst of the people 

and who can provide preventive 

legal services to the needy, particularly 

the poor and the weak. The idea 

is to root out the initial causes of 

trouble and disputes and resolve 

them at the earliest. 

This requires a totally new 

approach. The 21st century is considered 

as the century for human 

rights and human developments. 

The basic principle is people's participation 

and people's control in all 

spheres. This must also include the 

sphere of law, lawyers and judges. 

Law cannot be allowed to be too 

much sophisticated, learned and 

intricate, or even scientific, otherwise 

it will be only a lifeless 

machine to be used and abused at 

will. Lawyers and judges cannot be 

mere black-letter men looking upon 

We should start at 

the grassroot level, 

build up an organised 

group of easily 

available lawmen and 

others, who live and 

work in the midst of 

the people and who 

can provide 

preventive legal 

services to the needy, 

particularly the poor 

and the weak 

law as only an exercise in logic and 

not in life. There is nothing new and 

surprising in this. What was after all 

the jury system in criminal cases 

and even in civil cases? The spirit 

underlying this must pervade and 

permeate the entire juridical system. 

It is definitely a long term project 

and there are no short cuts. We 

must start with our law colleges 

and with our legal education. We 

must aim at producing and training 

lawyers and judges for radical people-orientated 

transformation of 

our justice-delivery system. In 

course of time Lok Adalats as projected 

here will take deep roots in 

the soil and will be accepted as the 

foundation of our judicial system. 

Only then courts of law will become 

courts of the people - integral part 

of people's social life. 

This will be a very challenging 

task - to create people's institutions 

with the active cooperation and support 

of the people. We must also 

remember that this will be seriously 

resisted by the established profession, 

as it is rightly said "every profession 

is a conspiracy against lay 

people". We must be on constant 

guard to ensure that the new institutions 

are not hijacked by the judges 

and lawyers for their self interest. It 

is necessary that these institutions 

grow from the bottom and not from 

the top and for this a strong people's 

movement demanding the people 

and justice-centered system of 

administration of justice is necessary. 

We do require trained judges and 

trained lawyers, not as benefactors or 

commanders but as people's servants 

and equal participants with those 

seeking justice. These local and 

decentralised institutions working 

with and in the midst of the people 

and with openness, fairness and 

transparency are the only effective 

answers to the ideological hegemony 

of capitalism and globalisation controlled 

by giant national and multinational 

corporates. We must strive 

to make latter subordinate and subservient 

to the demands of dignified 

life of the common people in every 

nook and corner of the country. Are 

we prepared to accept this challenge? 

The writer is a human rights 

activist and senior advocate, 

Gujarat High Court 


LOK ADALATS 

Access to justice in 

globalised economy 

In an age when politics is giving way to market, poor stand 

little chance as judiciary too undergoes restructuring. This 

is called for to suit the needs of market economy where 

billionaire's right to remain super rich and plight of the 

most impoverished to be super-poor are going to be 

accepted. Thus, observed Professor Upendra Baxi at a 

discussion held to mark the golden jubilee of Indian law 

Institute, New Delhi. Excerpts from his speech 

me to make 

one general and 

…Allow 

extended preliminary 

remark concerning the overall 

theme of this conference: 'Equity and 

Equality in a Market Economy.' 

This is indeed a puzzling theme 

because central to the notion of the 

market itself are two institutions of 

law: the right to private property, in 

all its sacrosanctity, over the means of 

production and the right of freedom 

to contract. Both these notions put 

together signify the Rule by Capital, 

not any conception of the Rule of 

Law guided by equity and equality, 

conceived either constitutionally or 

in terms of basic human rights and 

fundamental freedoms. Once we 

accept the right to private property in 

the means of production, we also 

accept more or less the right of the 

billionaires to remain super-rich and 

the plight of the most impoverished 

to be super-poor. We further accept 

that both the freedom to own property 

and freedom of contract imply the 

right to inflict lawful harm on others. 

The elegant expression 'market 

economy' conceals more than it 

reveals. To understand it rather 

fully, we need to grasp the distinction 

between production and seduction. 

The French postmodernist thinker 

Jean Braudillard, in his small monograph 

The Mirror of Production, educated 

us in the meaning of this distinction: 

production makes invisible 

things visible; in contrast seduction 

makes the previously visible things 

invisible. We must surely ask what 

the Indian Constitution thus produced 

and the seduction now 

entailed in the current 'Age of 

Reforms.' 

For one thing, the labours of 

Indian constitution-makers made 

fully legible many contradictions 

between social, economic, and political 

life, about which Babasaheb 

Ambedkar spoke about so movingly 

at the moment of the adoption of the 

Constitution. His speech concerning 

the 'life of contradictions' frequently 

adorns the discourse of the Supreme 

Court of India. These contradictions 

were specifically highlighted by the 

proclamation of the values of equitable 

social development in a postcolonial 

India paired with a grudging 

insertion of Article 31 rights to 

private property. The history of judi- 

58 


LOK ADALATS 

cial interpretation and constitutional 

amendments –- from the First to the 

44th Amendment — archives fully 

the endeavour to regulate private 

property in the means of production 

in the name of equity and equality 

offered by state regulation. True, the 

44th Amendment finally abolished 

the right to property, or rather 

demoted it to a status of merely a 

constitutional right. But this came 

too late and constituted too little to 

serve the cause of equality and equity 

in constitutional development. I 

cannot pursue this enormous narrative 

today, save to remind us all that 

the Indian Supreme Court has now 

fully reverted to its adjudicatory policy 

stance in the first three decades of 

Indian constitutional interpretation 

which entrenched contract and property 

above all fundamental rights. 

Five out of the six stories that I present 

later fully illustrate this trend. 

The seduction occurs when the 

preambulatory values, the fundamental 

rights of the masses of Indian 

impoverished, and the Directive 

Principles of State Policy, and 

Fundamental Duties of all Citizens, 

are rendered relatively invisible by 

apex policy-makers and summit 

Justices alike. The Directives in particular 

represent a vision of constitutional 

development ill suited to the contemporary 

era of economic reforms. 

We have been asked variously, 

however, at the inaugural occasion 

yesterday the ways in which Indian 

legal education, research, and profession, 

even the judiciary, may service 

the needs of globalised market. The 

learned Prime Minister urged us to 

realise that the 'legal world has 

become a global village' and that 

globalisation signifies vast opportunities 

for us all to become world–class 

players in the global 'markets of law.' 

He urged us to improve 'the quality 

of public discourse' to serve the 

'needs of the country.' But overall 

these needs remained defined and 

described in terms of India as a global 

market player. In effect, the 

learned Prime Minister, and 

Honourable Law Minister asked law 

students, teachers, and professionals, 

not so much to become soldiers 

of justice but rather to act as the 

cohorts of global capitalism. 

At least, that is how I received their 

entirely understandable message! I 

suspect on a close listening of the 

speech of the learned Chief Justice that 

he may have had some partial caveats 

to offer but I remain unsure and 

request your cooperation in understanding 

his subtexts a little better. 

I sincerely hope that I am entirely 

wrong in receiving the overall 

message of the inaugural session 

that contained two rather contradictory 

messages: the rule of law 

should remain global capital friendly 

as well as human rights friendly. I 

simply do not know, nor can tell, 

how this may ever be accomplished. 

I will have to exit this thematic now, 

given the time-constraints, but I hope 

that what now follows may perhaps 

illustrate the oxymoronic nature of 

the principal theme of our discussion. 

Let me at the very outset say that 

the term 'access to justice' is as mystical 

as the expression 'globalised 

economy.' 

Careful readers of the recently 

disconcluded WTO Doha Round 

will surely share this perception. 

One of the key categories there 

involved was NAMA-- 'Non- 

Agricultural Market Access'-- aiming 

at worldwide elimination of tariff 

and non-tariff barriers on free 

trade. As we know, the US-based 

Zero Tariff Coalition chaired by an 

executive from Dow Chemical, 

demanded zero tariffs in a large 

number of crucial sectors including 

even sporting goods, toys, wood 

machinery, and wood products! As 

some critics explain this, NAMA 'is a 

dream vehicle for corporations seeking 

a global rollback of taxes and 

regulations.' As we also know, the 

G90 (a grouping of the WTO's 90 

percent poorest nations) expressed 

all kinds of fears concerning the risk 

that unbridled global competition 

may pose to their infant industries 

and small firms. They articulated 

apprehensions that zero tariff would 

escalate further the crisis of deindustrialisation, 

unemployment 

and poverty and result in a kind of 

'search and destroy mission' for natural 

resources inherent in NAMA as 

promoted by global capital. They 

proposed various measures calling 

for information labelling, export 

restrictions on natural resources, 

and sustainable producers being 

'dumped' on by cheap imports and 

in effect for articulation of 'popular 

sovereignty' over the right to regulate 

market access. 

The notion of 'globalised economy' 

then signifies new forms of predation 

by global capital. Globalisation 

here refers to a new form of colonisation 

without colonisers; put another 

way, a new form of what I describe 

elsewhere as 'conquest globalisation.' 

Its earlier forms consisted in directly 

visible and massive appropriation of 

territories, resources, and peoples; 

the current incarnation remains even 

more sinister because the similar 

planned appropriation is rendered 

almost invisible. 

The task of critique concerning 

so-called globalised economy consists 

in devising historically accurate 

ways that establish a common identity 

between the East India Company 

and its lethal lineal descendants, the 

contemporary personifications of 

multinational capital, via the MNCs 

and their normative cohorts, the 

International Financial Institutions. 

These now use the languages of 

access and claim that such access 

remains essential to achievement of 

global justice! The tasks of human 

rights and new social movements 

also thereby stand defined by the slogan: 

Justice consists in a resolute denial 

of such access. 

The massive difficulties confronting 

this task stands posed by 

what Professor Leslie Sklair names 

insightfully as the 'new universal 

globalising middle class,' a segment 

of which stands here assembled at 

this Conference. We all seem, almost 

without exception, to believe that the 

new form of conquest globalisation is 

a good thing, after all. We all use computers, 

cell phones, the internet, the 

I-Pod, the DVDs, and related devices. 

We all believe that that the digital 

and biotech revolution remain more 

emancipative than the 'socialist' revolutions 

of the yesteryear. We all have 

stories to tell about how access to 

cyberspace facilitates the formation 

of new human rights and social 

action/movement solidarities. And 

we believe that if contemporary technologies 

of globalisation create new 

problems, these at the same moment 

remain endowed with the future 

prowess of techofixes that will necessarily 

solve these. In this, we remain 

consciously or otherwise juristic/ 

juridical/judicial technophiles, in turn 


LOK ADALATS 

promoting forms of techno-politics as 

a crucial dimension of the so-called 

'good governance.' Through all these, 

and related moves, uncritically celebrating 

the 'globalised economy' in 

everyday action we remain complicit 

with conquest globalisation. 

We all are constantly fed with the 

propaganda that the 'network society' 

aided by the digital revolutions 

facilitates access to sources of information 

hitherto previously unimaginable 

and if there may exist any digital 

divides, processes are already 

under way to bridge or at least 

abridge it. Like all propaganda, this 

represents a kernel of truth. But also 

by the same token this also overstates 

the claims of equal access to knowledge 

and information in cyberspace. 

As the illuminating corpus of 

Professor Manuel Castells shows, the 

rise of the network society may not 

always favour access to justice; in 

fact, it may indeed promote forms of 

global violence and injustice. And 

Professor Peter Drahos alerts us, 

indwells in the infinite promise of 

democratisation of information also 

the peril of some new orders of ' informational 

feudalism.' 

Even when lacking the luxury of 

time on this occasion to elaborate in 

any detail the promise and the peril 

of the new informational capitalism 

now firmly in place, please allow me 

to make one remark: the dominant in 

civil society and the state in so many 

domains of the so-called 'globalised 

economy' simply, starkly, and with 

vast orders of politics of cruelty, 

trump the human rights claims of the 

dominated; vast masses of human 

beings remain condemned to a preoccupation 

merely with cheating their 

ways into daily survival. Put simply, 

they remain simply, and unconscionably, 

priced out of the constantly 

otherwise expansive globalised 

'access talk.' 

Contemporary globalisation 

assumes many forms, where legal 

and judicial globalisations play a 

major role. Legal globalisation consists 

of many 'things'. It signifies the 

modernisation of the metropolitan 

legal profession, lending it a competitive 

edge in the world markets for 

legal services. In the process, some 

vice chancellors of the elite national 

law schools serve important roles in 

advising on matters of constitutional 

Contemporary 

globalisation 

assumes many forms, 

where legal and 

judicial 

globalisations play a 

major role. Legal 

globalisation consists 

of many 'things'. It 

signifies the 

modernisation of the 

metropolitan legal 

profession, lending it 

a competitive edge in 

the world markets for 

legal services 

change, economic policy and law 

reform even as they prepare their 

students for absorption into corporate 

practice. Legal globalisation also 

refers to new law reform agenda 

shaping the course of the three 'Ds' of 

economic globalisation: de-nationalization, 

disinvestment, and deregulation. 

Prominent on this agenda 

remain the shaping of new regulatory 

institutions, processes, and cultures; 

increased emphasis on alternate 

dispute resolution; simplification 

of investment and commercial 

law; and tendency towards accelerated 

growth of 'flexible labour markets'. 

Law reform, especially the efficiency 

of the administration of justice, 

becomes more visibly the instrument 

of the new economic policy. A 

process curiously named as 'far globalisation' 

generates some important 

legal changes such as the employment 

guarantee scheme act, the more 

vigorous enforcement of child labour 

laws, regime of protection of consumer 

rights, and of the right to 

information. Legal globalisation, 

overall, serves and promotes the 

needs of the new globalising middle 

classes of India. 

I believe that we must raise a 

related question concerning the 

global social origins of all this newly 

fangled access to justice talk. 

Who/which are the forces, managers, 

and agents of the globalised access 

to justice talk? And how may we 

characterise their 'original intent'? To 

put the matter rather summarily, it 

seems to me crystal-clear that the 

manifold labours of the international 

and regional financial institutions, 

the triadic communities of states — 

the United States, the European 

Union and Japan -- and the now 

deeply fractured WTO -- signify by 

'access' simply the potential for penetration 

of third world markets of 

labour and capital in modes that 

make these safer for the community 

of multinational corporations and 

direct foreign investors. In this 

vision, postcolonial national constitutions 

and its laws, manifest themselves 

as obstacles to access to the 

flows of global capitalism. Thus, 

these now remain heavily subject (as 

Professors Stephen Gill and David 

Schneiderman painstakingly remind 

us) to the newly minted prowess of 

the newly emergent yet fully robust 

'new economic constitutionalism.' 

Allow me to bring home the 

tragedy of all our access talk in the 

context of judicial globalisation. In 

the sparse but important literature 

on the subject, judicial globalisation 

suggests a new order of comity and 

cooperation among the world's apex 

courts and justices. At the first sight, 

there is little objectionable with the 

idea that apex justices of different 

jurisdictions ought to meet with 

each other and learn from each 

other's achievements and dilemmas, 

or that they become a cooperative 

'community' pursuing the tasks of 

national and global justice. But 

often these simple-looking ideas 

carry some hidden agenda. Judicial 

comity is often tinged with hegemony, 

and at times simple domination. 

Thus, for example, Judge Keenan 

in the Bhopal Case deferred to the 

competence of the Indian courts to 

decide the complex situation of mass 

disaster caused by the Union Carbide 

Corporation; Keenan went so far as 

to register a desire that he wished the 

60 


LOK ADALATS 

Indian judiciary to stand tall in complex 

mass torts adjudication! The 

sting in the tail was this: any damage 

award remained subject to 'due process' 

requirement and it was left completely 

open to a New York equivalent 

of Indian Small Causes Court to 

decide finally whether the Indian 

Supreme Court was capable of any 

correct understanding of this 

requirement! Judicial globalisation, 

in sum, means subservience of the 

South apex courts by the hegemonic 

North judicial fora. I have in my 

Hague Academy Lecture (2000) more 

fully illustrated this dimension of 

judicial globalisation. 

Judicial globalisation further 

occurs in the name of 'good governance' 

which requires an intense 

reform of justicing under the auspices 

of governmental and intergovernmental 

aid and development 

agencies. Again in principle unobjectionable, 

such auspices often 

take over the agenda of law reform 

and reform of judicial administration, 

and shape them in accordance 

with their economic and strategic 

needs. In particular stands promoted 

the idea of judicial self-restraint in 

policy matters of trade liberalisation, 

direct foreign investment, the establishment 

of company towns, free 

trade economic zones, and flexible 

labour markets. 

Although 'structural adjustment' 

is a notion that primarily extends to 

International Financial Institutions 

induced conditionalities that swallow 

the hard-won independence of 

postcolonial nations [1], and this 

notion is not thus far covertly 

extended to apex adjudicatory 

power, prowess, and process. I here 

suggest that the World 

Bank/IMF/UNDP, and related, programs 

of 'good governance' understandably, 

if not justifiably, promote 

structural adjustment of judicial 

activism. These covertly address, 

as well as overall seek to entrench, 

market-friendly, trade-related forms 

of judicial interpretation and governance. 

Judicial self-restraint concerning 

macro-economic policy as the 

basis of adjudicatory policy stands 

proselytised by the already hyperglobalised 

Indian appellate Bar. 

Understandably, the processes of 

judicial appointment preclude any 

serious regard for the elevation of 

A protest against Bhopal gas leak 

noticeably outspoken judicial critics 

of Indian globalisation. No longer 

may the judicial collegium already in 

place dare nominate a potential 

Krishna Iyer, D.A. Desai, Chinnappa 

Reddy, or even a Bhagwati! 

Before I proceed with six stories, 

please allow me to say that I remain 

an unabashed votary of judicial 

activism, Indian-style, which it 

remained my privilege to foster and 

further via social action litigation. In 

word (in my writings) and in deed 

(in my interventions/appearances 

before the Supreme Court of India), I 

have celebrated the many avatars of 

Indian judicial activism variously. 

For example, I have described judicial 

activism as transforming the 

Supreme Court of India as the 

Supreme Court for the impoverished 

masses of Indian-citizens; I have celebrated 

judicial activism as an essential 

chemotherapy for the cancerous 

Indian body politic. I have described 

in vivid detail, and applauded, the 

ways in which activist Indian Justices 

have proceeded to invent a new jurisdiction 

(which I name as the 'epistolary' 

jurisdiction), established new 

forms of appellate fact-finding 


LOK ADALATS 

(notably via the device of socio-legal 

citizen commissions of enquiry), rescripted 

fundamental rights considered 

and rejected by constitutionmakers 

for inclusion in Part III (such 

as 'due process,' right to speedy trial 

and to bail)' and enunciated new 

galaxies of human rights (such as the 

right to privacy and dignity, livelihood, 

environmental integrity, information 

and participation). The 

many–splendoured distinctive 

achievements of social action litigation 

have already, and continue to, 

fully assist the processes of redemocratisation' 

of the Indian constitutional 

polity. 

I need to reiterate all this out of 

any naïve authorial vanity but as an 

act of resistance to the forms of legal 

and judicial globalisation, which 

now foster the art of organised public 

amnesia, even concerning the new 

styles and habits of the now-takenfor-granted 

ways of judicial governance 

of India. At the same moment, 

it also needs to be said that celebration 

differs from panegyric orgies, 

rituals that serve no worthwhile ends 

than those pandering narcissisms of 

the moment. 

I have been critical of some adjudicatory 

policies and outcomes. In 

this, I am not in any way singular. 

Activist scholarship everywhere, but 

more poignantly in the Indian conjuncture, 

serves its cause well by 

abstaining from performances of 

judicial sycophancy, in any case prohibited 

by Article 51-A of the 

Constitution that urges all Indian citizens 

to develop 'scientific temper', 

'spirit' of critical enquiry and social 

reform', and above all the virtue of 

'excellence' in all 'walks of life'. In 

sum, this virtue casts a responsibility 

on all Indian citizens to expose mediocrity 

in adjudicative policy and performance. 

The Constitution then 

requires of both apex judicial actors 

and their critics to shun mediocrity 

and pursue excellence; these remain 

in real life, I acknowledge, difficult 

virtues to practice. 

Allow me, in this milieu, to proceed 

with my six stories! The first 

story relates to the constitutionality 

of some globalisation induced 

trade/aid/grant conditionalities. The 

Supreme Court had indeed developed 

the doctrine of 'unconstitutional 

conditions' (notably by the exertions 

of Justice Mathew) and the later 

doctrines concerning unconstitutional 

disappointment of legitimate 

expectations and of prohibition of 

unjust enrichment. All these doctrines, 

in sum, dignified strict judicial 

scrutiny of macro and micro economic/development 

policies that adversely 

impacted on equality/equity or 

human rights and fundamental freedoms 

of the most vulnerable classes 

of Indian citizens. These doctrines 

now lie buried five fathoms deep. 

My first story concerns the 

activist challenge to India's accession 

to the WTO impugned on the 

ground that it violated not just Part 

III provisions but also the basic 

structure of the Constitution, an eminently 

well-crafted judicial doctrine 

[put in the Onida-TV advert as 

'owner's pride and neighbour's 

envy'.] The Bombay High Court 

rather blithely dismissed the contention! 

On one reading of its judgment, 

the Court, overall, asked the 

petitioners to return to its powers as 

and when any such deleterious 

impact became more manifest! 

Unlike the classic discourse concerning 

the certification of the interim constitution 

where the South African 

Constitutional Court subjected it to 

the test of basic principles, the Court 

62 


LOK ADALATS 

did not even seek to match the bloodgroup 

of the WTO agreements, especially 

the TRIPS, with Parts III and IV 

of the Constitution. It is no consolation, 

though in a different context, for 

us to know that the Philippines 

Supreme Court likewise abstained/ 

abdicated its role. May I suggest that 

we read this decisional stance as the 

first step towards the structural 

adjustment of judicial review power, 

process, and activism? To steal a 

famous phrase from Ronald Dworkin, 

the eminent Court acts here as a 

'deputy' to the legislators, let alone as 

'deputy legislator.' 

A second momentous development 

towards the structural adjustment 

of judicial role, and activism, 

occurs through the entirely unconscionable 

and unconstitutional judicial 

orders decreeing the infamous 

Bhopal settlement. Should you find 

these words too harsh, I invite your 

attention to the text of these orders. 

The Court there not merely reduces 

the compensable amount from the 

Indian government computed US 3 

billion dollar to 470 million dollar 

but also grants the Union Carbide 

full immunity from criminal proceedings 

and surrogates the Indian 

government as a fully-fledged fiduciary 

clone of that multinational, and 

all its world-wide affine, in regard to 

all civil action in India and at world 

at large! Our efforts at review petition 

saved the Court, at least partially, 

of the ignominy of a 'done deal' 

providing criminal immunity to 

Union Carbide. 

I have written rather extensively 

concerning this astonishingly 

anguishing adjudicatory performance 

but also been responsible for 

review petitions that ultimately, but 

effetely, quash some of these immunities/impunities. 

Twenty-one years 

since, and I cannot speak of this without 

a lump in my heart; the catastrophic 

victims remain staggeringly 

re-victimised. For the present occasion, 

this narrative suggests a judicially 

induced/managed transition 

room; the paradigm of the universal 

human rights of all suffering peoples 

to that of trade-related, marketfriendly 

human rights paradigm. 

A third story concerning structural 

adjustment of judicial activism 

stands presented in the determined 

reversal of the proud labour 

jurisprudence of the Supreme Court 

itself. The juristic and juridical 

labours of Krishna Iyer, D.A. Desai, 

Chinnappa Reddy M. P. Thakkar, 

and in earlier times of Subba Rao 

and Gajendragadkar, even a 

Hidyatullah, are now reversed by 

many a hurried stoke of insensitive 

judicial pen! A 2006 decision of the 

Supreme Court [2] even goes so far 

as to 'denude' all prior contrary decisions 

of their authoritative status! 

This sweeping dismissal of prior 

binding precedents signifies an 

entirely unaccountable and rather 

unprecedented judicial technique in 

the annals of the Indian as well as 

the Commonwealth judiciary! The 

learned Justice who writes the principal 

opinion even goes so far as to 

suggest that his predecessors 

laboured under a misimpression that 

ours was a socialist constitution! 

This eminent judge compelled a 

momentous jurisprudential anxiety 

for me in my Warwick location. I 

scourged the histories of recent 

amendments to ascertain whether 

some recent constitutional amendments 

had after all deleted this 42nd 

Amendment insertion to the 

Preamble to the Constitution! Allow 

me to bring to you the good news that 

this preambulatory recital has survived 

the ravages of contemporary 

Indian globalisation! The bad news is 

that this now for the Supreme Court 

of India makes not a tattle of difference! 

I am not saying at all the later 

Justices may not feel free to dissent 

from their predecessors. Nor am I 

saying that the predecessors may 

claim any prophetic wisdom over the 

future of constitutional development. 

However, I do wish to suggest 

with the fullest constitutional sincerity 

that in doing so they remain fully 

accountable at the bar of public reason. 

And in this respect they altogether 

seem now to collectively fail. 

A fourth narrative of structural 

adjustment of judicial power stands 

furnished by the Supreme Court's 

momentously meandering jurisprudence 

concerning the Narmada Dam 

construction. At one decisional 

moment, we are told that the height 

of the dam may not be raised without 

the most solicitous regard for the 

human rights, and human futures, of 

the ousted project affected citizenpeoples. 

At another decisional 

There is simply no 

way to 'conclude' 

this agonised 

presentation, save by 

saying that the 

access talk remains a 

part of the problem, 

not a part of any 

solution 

moment stands enacted the unconstitutional 

pari passu principle, under 

whose auspices submergence may 

actually occur with some indeterminate 

regard for relief, rehabilitation, 

and resettlement. At a third moment, 

the affected citizen-peoples stand 

somehow assured that the Court is 

not powerless to render justice to 

them even as submergence occurs. 

Who knows what a fourth moment 

may after all turn out to be? The present 

writing on the judicial wall fully 

suggests the possibility that the 

Court may terminally declare that 

the tasks of relief, resettlement, and 

rehabilitations stand almost fully and 

magically accomplished! 

A fifth story of the structurally 

adjusted judicial role and 'responsibility' 

stands now furnished by 

the judicially mandated/mediated/sanctioned 

urban demolition 

drives that cruelly impose themselves 

on the bloodied bodies of 

the urban impoverished. Some 

recent judicial performances go so 

far as to fully suggest a total reversal 

of human rights to dignity and 

livelihood, which the Court itself 

since the Eighties so painstaking 

evolved. Some court orders go so 

far as to mandate, under the pain of 

contumacious conduct, any human 

rights-oriented intervention 

against the enforced demolitions. 

The impoverished urban evacuees 

stand denied all rights of constitutional 

due process, including 

access to their erstwhile meagre 

belongings. The bulldozers remove 

the last sight of their existence as 

documented citizens; all evidence 


LOK ADALATS 

of title and occupation (including 

the only 'passport' they possess by 

way of pattas, their inchoate 'title' 

deeds, and prominently their 

ration cards) stand maliciously and 

wantonly destroyed. 

Not too long ago during the 1975- 

76 imposition of the internal 

Emergency, such happenings were 

poignantly described as emergency 

excesses. Today, these somehow constitute 

the badges of good governance! 

Surely, structural adjustment of judicial 

activism, or judicial globalisation 

Indian-style, thus with a singleminded 

consistency, now produces 

with some irreversible human rights 

destructive globalising intendment 

some new judicial productions of the 

estates of Indian human rightlessness. 

A sixth story concerns the harsh 

way in which the Indian Supreme 

Court dealt with the 'contempt' 

committed by Zahira Sheikh. She 

signifies a multiple-produced series 

of texts of victimage constituted severally: 

first, as an eye-witness to the 

destruction by arson of her own kin 

and affine by the Hindutva mobs; 

second, as news/views 'commodity' 

in hyperglobalising Indian mass 

media; third, as a resource appropriated 

by local politicians and by 

some activists alike and fourth as a 

commodity in the heavily mass 

media inflected markets of human 

rights and social movement 

activism. Overall here, a deeply 

traumatised victim of organised 

political catastrophe, or holocaust, 

stands compelled by the force of circumstance 

to make contradictory 

statements that finally decree her 

fate as a contumacious Indian citizen 

worthy only of the most severe 

punishment in the annals of contempt 

jurisprudence. 

The same Court, however, 

remained largely lenient in its 

regard for Chief Minister Kalyan 

Singh for an objectively presented 

far worse egregious contumacious 

conduct leading to the demolition of 

the Babri Masjid and the communal 

carnage that followed. It also 

remained lenient for Arundhati Roy, 

a historically belated NBA activist 

figuration, marshalling the full 

range of powers of International 

Union of Journalists, and Shiv 

Shankar, a former Union Law 

Minister, for a while marshalling the 

power of judicial elevation. Their 

egregious contumacious conduct 

was thought eligible for the otherwise 

rather relaxed standards of contempt 

punishment. Yet, the Supreme 

Court leaned heavily on Zahira. 

How may we understand this judicial 

asymmetry in our, or indeed in 

any access talk, save by the fact that 

that high political status was simply 

not available to Zahira? 

To depict the scenario thus is not 

to present any mean-mouthed mode 

of attributing any class differential in 

access to justice. Yet in discharging 

my citizen responsibility acting 

under Part IV-A fundamental duties 

of Indian citizens requires me to 

highlight the different strokes of the 

judicial exercise of contempt power, 

which also mark some enormous differentials 

of access to free speech 

under the Indian Constitution. 

How indeed may one fully grasp 

the forms of politico-judicial toleration 

of contumacious performances 

that in fact enact different standards 

for highly placed political figures as 

compared with ordinary and hapless 

citizens? Is it also the case as well that 

some new walls of difference thus 

erected between globalised and deglobalised 

Indian citizens? How may 

we at all grasp the enactment of different 

tolerance thresholds for public-spirited 

criticism of adjudicatory 

styles and performances that now so 

fully enact some contradictory, dual, 

even multiple, standards of differential 

access to justice, as an aspect of 

freedom of speech and expression, 

even amidst the most traumatically 

devastating moments? 

There is simply no way to 'conclude' 

this agonised presentation, 

save by saying that the access talk 

remains a part of the problem, not a 

part of any solution. To reiterate, 

any approach to solution must at 

least respond to the following 

types of questions: How may we 

de-globalise judicial access, that is, 

ensure that the overseas and 

national capital does not ride 

roughshod over the livelihood and 

dignity rights of the working classes? 

How may we ensure that in the 

making of new Indian global cities, 

and the enclaves/fortresses of special 

economic zones, the same 

range of lived human rights to the 

migrant and urban impoverished 

citizens? How may we pour democratic 

and constitutional content to 

the borrowed and imposed languages 

of 'good governance'? How 

long may the masses of impoverished 

Indian citizens be treated as 

mere objects of development policies 

that reproduce the lives of 

Indian citizens as receptacles of 

obscene political waste? How far 

ought the new economic policy 

remain effectively a human rightsneutral 

domain of national governance 

by elected officials as well 

the unelected ones (most notably 

the Justices)? How may we all 

endeavour together for the restoration 

of the glory of the Supreme 

Court of India which finally converted 

itself, in the halcyon days of 

democratisation of access, as the 

Supreme Court for all hapless 

Indian citizens? 

Perhaps, I may sound to you as 

calling for a Jurassic-park-type 

revival of Indian judicial activism of 

the seventies and eighties. You may 

well want to regard me as a jurisprudential 

dinosaur. So be it. For weal or 

woe, I am unable to make any coherent 

sense of our access talk otherwise. 

Perhaps not; I invite summarily 

the gesture of Jean Francois 

Lyotard in his Peregrination: Law, 

Form, and Event when he speaks to 

us thus: "How may we understand 

then the descent into the substrata 

of necessity, to seek out there the 

most the meaning of the most irrational 

of historic effects [that resists 

the [construction of] the incomprehensible 

and complete tableau of 

reality… [that listens]… to the 

obscure passions, the arrogance of 

leaders, the sadness of workers, 

the humiliation of peasants, and of 

the colonised the anger and the 

bewilderment of revolt; the bewilderment, 

too, of thought [that 

invites] again the thread of class in 

the imbroglio of events." 

Justice Goswami once spoke of 

the Indian Supreme Court as the 'last 

refuge for the bewildered and the 

oppressed'. Perhaps, a globalising 

Indian Supreme Court needs to 

recover this increasingly lost adjudicatory 

estate? 

—The writer is Professor of Law at 

University of Warwick and former Vice 

Chancellor of Delhi University 

64 


LOK ADALATS 

"Though the PIL was 

originally intended to give 

access to those who would 

otherwise have no voice, it 

is easily captured by 

articulate and well 

organised interest groups" 

writes Sandra Fredman, 

Professor of Law, Oxford 

University, in a 

forthcoming book 

Transforming Human 

Rights: Positive Rights and 

Positive Duties (OUP, 

2008). Excerpts 

the 'public'? 

...Who is 

The role of the 

Public Interest 

Litigant. The role of the Court has 

become particularly contentious now 

that access to the courts via the 

Public Interest Litigation (PIL) process 

has spread well beyond its original 

rationale. Far from only serving 

the poor and disadvantaged who 

would not otherwise have access to 

the court, PIL is now widely available 

to anyone claiming the public 

interest. The result is that procedural 

safeguards are circumvented even 

when the normal writ procedure 

would not render the court inaccessible. 

Cases contesting the treatment of 

wild monkeys in Delhi jostle with 

cases contesting the right of private 

schools to conduct admission interviews 

for very young children. It has 

been argued that this has increased 

the workload of High Courts and the 

Supreme Court, which in itself 

obstructs access to justice for the 

most disadvantaged and decreases 

the Court's ability to justice. But 

whether PIL cases make a significant 

contribution to the vast increase in 

the court's docket remains controversial. 

Certainly the statistical case is 

not made out. 

More fundamentally, widening 

access beyond the original constituency 

of poor and disadvantaged, 

has resulted in a crucial 

change in the perspective from 

which the case is presented to the 

Court. Those who initiate the case 

have the power to frame the issues 

for the Court. Widening access therefore 

runs the risk that those who 

already have political and economic 

power will drown or even scotch the 

voices of the poor and disadvantaged. 

In this context, as Professor 

Upendra Baxi puts it, the social conversation 

easily moves along 'an axis 

of discursive inequality'. Indeed, the 

partial reversal in the court's attitude 

to the poor and disadvantaged 

reflects, at least in part, the change 

in the character of the public interest 

litigant. The power of the initial 

litigant to shape the case is not, of 

course, absolute. The decision as to 

whether to litigate and how to present 

it may itself be the product of 

deliberative participation. Nor does 

the litigant have the last word on the 

perspective from which to view the 

PIL and 

Indian courts 

case. Framing the issue is only the 

beginning of the conversation. 

Regardless of who initiates the case, 

the interests of the poor or disadvantaged 

can be addressed by interveners. 

However, this is an empty 

promise for those who are insufficiently 

organised or who do not 

have the resources to keep in touch 

with court developments. More frequently 

they will be drawn into the 

litigation after the original orders 

have been passed, to redress the 

implications of judicial intervention 

to which they suddenly find themselves 

exposed. For example an 

interlocutory order was passed on 

April 5, 2006 ordering removal of 

slum dwellers from Nangla Machi 

slum in Delhi without hearing the 

people affected (SP © No. 

3419/1999). The affected people then 

brought special petition requesting 


LOK ADALATS 

66 

The agenda of PIL is shaped as a dialectic 

between social activists and courts. Although 

the PIL was originally intended to give access 

to those who would otherwise not have a voice, 

it is easily captured by articulate and wellorganised 

interest groups. How then can this 

dilemma be addressed? 

that they be heard. See Ram Ratan et 

al v. Commissioner of Police, Special 

Petition, 9/05/06. Alternatively, the 

Court itself could raise relevant 

issues, but this is no substitute for 

participation. Ultimately, a conversation 

between equal participants 

is premised on the ability of the 

poor and disadvantaged to make 

themselves heard. This is not 

always the case. 

This role of the litigant in framing 

the issue can be seen in the controversial 

forestry cases initiated by a 

petition to prevent illicit felling of 

timber in India's forests. In this case, 

the petitioner was by an ex-estate 

owner, whose vast tracts of forest in 

Kerala had been taken over by the 

forest department in the early 1990s, 

threatening trees his family had protected 

for generations. In response to 

the petition, the Court issued a series 

of interim directions requiring an 

immediate cessation of all on-going 

activity within any forest in any 

State throughout the country (unless 

it had the prior approval of the 

Central Government), including a 

ban on the felling of trees in the tropical 

forests. Total and immediate cessation 

of all saw mills and mining in 

forests was ordered, and a complete 

ban imposed on the movement of cut 

trees and timber from any of the 

seven North-Eastern States to any 

other State of the country. This ban, 

however, did not only capture large 

commercial enterprises. It also seriously 

affected tribals and other 

poor people living within and 

around forests, who depended on 

the forests for fuel, fodder, minor 

forest produce and construction 

timber. Their position was made 

even more difficult by a further 

order in 2002 order directing state 

governments to summarily evict all 

illegal encroachment of forestlands 

since 1980. Because the indigenous 

rights of many tribal forest 

dwellers were not established, this 

led to widespread eviction of 

indigenous peoples throughout the 

country, a result aggravated by the 

widening of the definition of 'forest' 

to include all areas conforming 

to the dictionary definition and not 

just those officially registered as 

such. One of the key problems was 

the paucity of proper participation 

by the indigenous people themselves, 

either in the initial litigation 

or in government decision-making. 

Although many interveners on 

behalf of tribals and forest dwellers 

appeared at subsequent hearings, 

this was only in response to the 

impact on these people of the court's 

original directions. 

The power of the litigants to 

frame the perspective can further be 

illustrated by contrasting cases initiated 

by slum-dwellers asserting 

rights to livelihood, with those initiated 

by environmentalists or middle-class 

property owners asserting 

rights to a cleaner city. Thus it was 

in response to petitions by pavement 

dwellers themselves that the Court 

in the seminal case of Olga Tellis 

articulated the rights of slumdwellers 

to livelihood and therefore 

to remain in the city. The role of the 

litigants is apparent from the opening 

paragraphs of the case, which 


LOK ADALATS 

clearly present the petitioners' perspective. 

The Court not only 

describes their plight with great 

sympathy, narrating the conditions 

of appalling squalor in which they, 

together with nearly half the population 

of Bombay, lived. It also stresses 

their 'respectability': they were in 

employment and had paid rent (to 

local slum lords) for their shelters. 'It 

is these men and women who have 

come to the Court to ask for a judge- 

Bangalore High Court 

ment that they cannot be evicted 

from their squalid shelters without 

being offered alternative accommodation.' 

By 1996, when cases were 

increasingly initiated by environmentalists 

and middle class property 

owners, slum dwellers were no 

longer characterised as rights-bearing 

citizens. Thus in the waste-disposal 

case of Almitra, initiated by a 

public interest litigant committed 

to the improvement of the urban 

environment, the Court characterised 

the provision of alternative 

accommodation as rewarding 

wrongdoers. According to the 

Court: 'The promise of free land, at 

the taxpayers cost, in place of a 

jhuggi, is a proposal which attracts 

more land grabbers. Rewarding an 

encroacher on public land with free 

alternate site is like giving a reward 

to a pickpocket.' 

From this it can be seen that the 

agenda of PIL is shaped as a dialectic 

between social activists and courts. 

Although the PIL was originally 

intended to give access to those who 

would otherwise not have a voice, it 

is easily captured by articulate and 

well-organised interest groups. 

How then can this dilemma be 

addressed? Underlying this question 

is a debate both as to what constitutes 

the public interest and who can 

legitimately represent it. So far as the 

public interest is concerned, there is 

clearly an area in which it is obvious 

that litigants are representing private 

trade or industrial interests. Early 

cases held that standing would not 

be granted to those pursuing private 

interests. It is open to state governments 

to contest the bonafides of PIL 

petitioners, and they regularly do so, 

sometimes successfully. Beyond that, 

however, as the range of litigated 

cases demonstrate, the definition of 

public interest is wide and inclusive. 

Perhaps this is inevitable, given the 

impossibility of a single public interest 

in a highly diverse and complex 

society such as India. This places the 

emphasis on who can be said to 'represent' 

the public interest. Baxi 

argues that the meaning of representation 

is itself contested. While representation 

usually entails 'speaking 

for others', deliberative democracy 

aims to 'speak with others'. Viewed 

in this light, for the court to impose 

criteria of representation might only 

detract from the ability of PIL to 

redefine representativity as a conversation 

between and among co-equal 

citizens. At the same time, it must be 

recognised that the conversation 

between co-equal citizens can only 

take place if the participants can in 

reality participate on equal terms. 

The aim of PIL was always to prevent 

the court from simply replicating the 

disparities in power and economic 

position in the wider society. To keep 


LOK ADALATS 

this ideal alive requires ongoing vigilance. 

The primary source of such 

vigilance must be social activism 

itself, rather than the top-down control 

of the court. A key issue is therefore 

the willingness and ability of 

social rights activists to bring social 

action petitions in the appropriate 

contexts, and to formulate the claim 

in such a way as to open up areas of 

conversation which the ordinary 

paths of 'legality' by-pass and negate. 

However, the court also has a role to 

play in ensuring that the voice of all 

is actually heard, not just in response 

to a question already framed but in 

the framing of the question itself. 

These dilemmas are well illustrated 

in the Narmada dam litigation, 

where the problems raised by allowing 

the Court to determine the representativity 

of the plaintiff are highlighted. 

In this case, an environmental 

group brought a PIL to ask the 

court to restrain the government from 

proceeding with the construction of 

the dam on the Narmada river, which 

would displace tens of thousands of 

people. Here the Court refused to 

accept the petitioner's credentials in 

representing the weaker sections of 

society. The petitioner was an organisation 

which had campaigned against 

the dam largely for environmental 

reasons, and although this included a 

concern for the interests of those ousted 

by the project, the Court did not 

regard the petitioner as an authentic 

representative of those interests. 

Instead, it accepted the government's 

view that affected tribals and people 

of weaker sections would in fact gain 

from resettlement, since many of 

them were living as labourers or 

marginal farmers and would be given 

a house and land of their own. 

Indeed, it was contended that opponents 

of the dam were simply 'playing 

the card of tribals and weaker sections' 

on behalf of the land-owning 

The Indian Supreme Court, faced with powerful 

demands for eviction and displacement, has 

taken refuge in a narrow concept of legality 

which relies on absence of proprietary rights to 

shut down any claims at the threshold 

class, who were opposing the project 

because it would deprive them of 

cheap labour. In coming to the conclusion 

that the oustees would in fact 

be better off as a result of the project, 

the Court gave no indication that it 

had made any attempt to find a 

means whereby these groups could 

articulate their own position. It was 

again only in subsequent hearings 

that these groups were able to articulate 

their concerns as interveners, and 

this was only after the Court had 

allowed construction to proceed pari 

passu with rehabilitation measures 

(see further below). 

One possibility is to attempt to 

confine PIL to those who would not 

otherwise have a voice, thus returning 

PIL to its original constituency 

of the poor and disadvantaged. It is 

arguable that where litigants do not 

speak for those whose poverty or 

other social disadvantage is a bar to 

access to justice, they should be 

bound by the rigours of normal civil 

procedure, including narrow rules 

of standing, rigorous fact-finding 

and limited remedial powers. For 

example, middle class environmental 

groups agitating for slum clearance 

would need to bring a claim in 

nuisance and follow the regular 

court procedure to do so. However, 

this may present practical problems 

in screening out the appropriate 

cases; and may in any event simply 

transpose the problem of identifying 

appropriate litigants to an earlier 

phase of the process. The power of 

the court to define who speaks 

would thereby be unnecessarily 

enhanced. An alternative might be an 

approach which gives greater 

emphasis to opening up the procedure 

to all concerned, from the very 

beginning of the litigation. Instead, 

the claim to represent the public 

interest in cases such as environmental 

litigation should be scrutinised, 

and avenues opened up from 

the very beginning of the litigation to 

ensure representation for diverse 

parts of the public. Thus as we have 

seen above, Michelman has argued 

that a Constitutional Court should 

'reach for the inclusion of hitherto 

excluded voices of emergently selfconscious 

social groups'. 

Appropriate role of the court 

PIL appears to be most successful 

when the court intervenes to require 

implementation of policies which 

have already achieved broad consensus 

but through apathy, disorganisation 

or failure to prioritise have not 

been put into action. The right to 

food case, as we have seen, turned 

existing policies into fundamental 

rights and elaborated on them. The 

court can also be effective in its intervention 

in cases where there is a conspicuous 

gap in policy-making in 

areas affecting the most fundamental 

rights, such as the right to dignity 

and equality of mentally disabled 

people. A particularly important area 

in which the court has been instru- 

68 


LOK ADALATS 

mental in filling a serious gap in legislation 

is that of sexual harassment. 

In response to a PIL, the Court held 

that sexual harassment constitutes a 

violation of women's constitutional 

right to dignity, and drafted quasilegislative 

guidelines, drawing on 

internationally recognised norms. 

Here, however, the institutional limitations 

of a court taking on a legislative 

role quickly became apparent. 

The process of drafting a statute in 

line with the Court's prescriptions 

have proved very difficult, because 

of the diversity of situations the law 

needs to address. This is exacerbated 

by the court's delineation of the issue 

as one for the public sector only . 

Where, however, the PIL challenges 

an existing policy backed 

by powerful political forces, and 

established in the name of economic 

development, the Court's 

grasp of its fundamental rights 

mission becomes more unsteady. 

This has been painfully clear in an 

era in which the forces of globalisation 

and the rhetoric of economic 

development have permeated 

Indian policy-making. In such 

cases, the public interest is easily 

transmuted to exclude the fundamental 

rights of the most disadvantaged, 

either through a utilitarian 

calculus or through equating 

the benefit to some parts of the 

population with the public interest 

as a whole. Using familiar legal 

formulae, such as separation of 

powers, legality and deference, 

courts have in several dramatic 

cases endorsed the position of the 

powerful and the privileged at the 

expense of the poor and marginal. 

Indeed, some would argue that the 

deference to globalisation and 

multi-national capital makes sense 

of the Court's simultaneous assault 

on pollution, corruption and 

labour rights. This can be seen in 

three broad areas: urban development, 

protection of the environment 

and dam development. 

Urban development 

Although India has had severe housing 

shortages and chaotic urban 

planning for many years, urban 

development comes into focus in a 

different way when the aim is to create 

cities which are attractive to 

inward investment and global capital. 

In this light, urban development 

requires orderly planning, effective 

services, anti-pollution measures 

and public spaces; all of which 

immediately undermine the claim to 

urban citizenship of the slum- and 

pavement-dwellers, the hawkers 

and the homeless, who now constitute 

nearly a quarter of the population 

in 26 big Indian cities. Instead of 

aiming for integration, through 

housing, services and schools, the 

focus is on removal. The Indian 

Supreme Court, faced with powerful 

demands for eviction and displacement, 

has taken refuge in a 

narrow concept of legality which 

relies on absence of proprietary 

rights to shut down any claims at 

the threshold. The result is to characterise 

all those without property 

rights as encroachers, trespassers 

and even petty criminals. Yet the 

guiding principle behind human 

rights is to challenge legality when 

it deprives people of their rights. 

By failing to regard slum dwellers 

as urban citizens with equal rights, 

the courts have strayed from their 

human rights role. 

This can be seen in the string of 

cases concerned with eviction of 

slum-dwellers. Constituting of well 

over 40 million people , slum 

dwellers have found themselves pitted 

against pedestrians, town-planners, 

middle class homeowners, 

environmentalists and local authorities 

in their struggle for minimum 

human rights. While lip service is 

often paid to the duty to rehabilitate, 

relocation is frequently to un-serviced 

sites inaccessible to schools or 

work, where displaced people are 

required to pay for a piece of land 

with little real utility to themselves. 

In such cases, the Court has neither 

imposed a duty of restraint (against 

eviction) nor used its extensive 

remedial powers to insist on implementation 

of positive duties to provide 

housing and infrastructure. The 

result is that evicted slum-dwellers 

are forced back into the illegal settlements 

as their only means of making 

a living. This can be dated back to 

Olga Tellis itself, which, although 

using the vocabulary of a right to 


LOK ADALATS 

livelihood, in fact imposed only a 

duty to consult those facing eviction. 

Particularly serious was the refusal to 

insist that alternative pitches with 

proper infrastructure be provided as 

a condition precedent to removals. 

In one sense, the court's reluctance to 

enforce such positive duties is difficult 

to explain since the Court could 

have followed its own example in the 

right to food case and insisted on the 

implementation of existing policy 

documents, thus turning a policy 

commitment into a fundamental right 

to livelihood and shelter. In particular, 

the Delhi Master Plan aims to deal 

systematically with Delhi's housing 

problems through integration of slum 

dwellers into housing with the necessary 

infra-structure and accessibility 

to sources of work. The plan, which 

includes a significant land allocation, 

has been consistently ignored. 

Environmental cases 

Overlapping with housing issues, 

and similarly caught between a fundamental 

rights approach and the 

utilitarianism of global capitalism, 

are environmental concerns, an arena 

in which the court has been a major 

player. Many of the environmental 

cases upheld by the Court have of 

course benefited the poor as well as 

the middle classes. The Court's intervention 

after public spirited individuals 

drew its attention to the dangerous 

leak of oleum gas from factory 

premises in Delhi and the discharge 

of toxic effluents into the soil in 

Udaipur are good examples. In the 

famous Vehicular Pollution cases , the 

Court was faced with government 

statistics showing that vehicles contributed 

70% of the air pollution in 

Delhi and other major cities. In 

response, it ordered strict measures 

to decrease such pollution, including 

the conversion of all public transport 

in Delhi to the use Compressed 

Natural Gas rather than petrol. The 

resulting drop in pollution clearly 

benefits all. Such cases are, however, 

consistent with a judicial approach 

which views cleaner cities as an 

essential way of attracting global capital. 

Other aspects of the environment 

raise more complex conflicts of interest. 

In one of its earliest decisions, 

concerned with illegal quarrying 

which was destroying the Musoorie 

hills near Delhi and interfering with 

the water system, the Supreme Court 

was able to take into account the 

effect of closing the mines on workers 

jobs. Thus as well as prohibiting the 

mining, the Court directed that task 

force be set up to engage workers in 

the task of aforestation and soil conservation 

of reclaimed land. 

However, in the clash between the 

drive for cleaner cities and the needs 

of the urban poor, the former has 

invariably triumphed. Although 

rehabilitation and resettlement is 

sometimes ordered, as has been seen 

above, their efficacy is seriously 

weakened by allowing resettlement 

to be postponed while environmental 

measures proceed. 

The Indian Supreme 

Court, faced with 

powerful demands for 

eviction and 

displacement, has 

taken refuge in a 

narrow concept of 

legality which relies 

on absence of 

proprietary rights to 

shut down any claims 

at the threshold 

A particularly ferocious instance 

of the Court privileging environmental 

issues over people was the action 

in May 1997 of the Bombay High 

Court in ordering the eviction of 

informal settlement dwellers adjacent 

to the Sanjay National Park. The 

Court was responding to a petition 

filed in 1995 by the Bombay 

Environmental Action Group 

(BEAG), asking the Court to 

'remove forthwith' the 'encroachers' 

in order to ensure protection of 'the 

environment and all its aspects'. Not 

only did the Bombay High Court 

direct the relevant authorities to evict 

persons from their homes. It also 

specifically ordered the demolition 

of shelters and the destruction of all 

belongings and construction materials. 

As many as half a million slumdwellers 

were potentially affected. 

A similar pattern can be seen in the 

decision to clear the one of the 

biggest and oldest slums in Delhi, 

home to 150,000 people and 40,000 

homes, which had existed for many 

years on the banks of the Yamuna 

river. The slum was demolished in 

2004 by order of the High Court of 

Delhi, in response to a petition 

brought by citizens concerned at the 

pollution and encroachment on the 

river. About a fifth of the residents 

were resettled on the outskirts of 

Delhi, without local services or 

transport into the city. The rest were 

left to their own devices. Although 

the High Court directed that proper 

basic amenities, including power, 

water, sewerage, schools, and transportation 

be provided in the rehabilitation 

colonies, it refused to stay the 

eviction until these has been complied 

with. By 2006, little had been 

done to implement these directions. 

While no-one is in any doubt that the 

Yamuna is seriously polluted, the 

extent to which the slums contribute 

is controversial. A study titled 

Yamuna Gently Weeps by RN Barucha 

puts the contribution of slums to 

such pollution at less than 1 percent. 

Development and dams 

A third area in which the PIL has 

required the Court to face up to powerful 

political and economic interests 

in the name of development concerns 

the much contested Narmada dam 

project. This concerned the construction 

of a dam on the Narmada river, 

which would displace many people 

and submerge natural forest land. The 

claimed benefits included providing 

irrigation to drought prone areas, 

drinking water facilities to thousands 

of villages and urban centres, as well 

as power generation. Proposals for the 

project, initiated in 1947, had been the 

subject of numerous reports and consultations, 

as well as a detailed award 

by a statutory tribunal. Financed by a 

loan from the World Bank, construction 

eventually began in 1987 and the 

first ten sluices were closed in 

February 1994. Almost immediately, a 

PIL was filed, asking the court to 

restrain the government from proceeding 

with the construction of the 

dam and to order the sluice gates to be 

70 


LOK ADALATS 

closed. The facts were heavily contested. 

The petitioners claimed that the 

environmental clearance given in 1987 

was based on incomplete evidence 

and the proper studies had not been 

undertaken. They also claimed that 

the right to life of those who were 

ousted by the dam had been breached, 

since it was impossible to fully substitute 

for their way of life through rehabilitation 

measures. In any event, they 

argued, there was insufficient public 

interest to justify the displacement, 

given that serious doubts had been 

raised about the benefits of the project, 

in particular, that it would only bring 

water to the margins of drought-prone 

areas and even then would have little 

real effect. For this they relied on the 

1992 report of an Independent Review 

set up by the World Bank, which concluded 

that decisions had been made 

on the basis of questionable or 

unfounded assumptions without a full 

understanding of the consequences, 

that the benefits were overstated and 

the environmental impact not adequately 

addressed. Most serious, it 

found rehabilitation of all those displaced 

was not possible. The government 

cited its own alternative assessment, 

which referred to the many benefits 

the scheme would bring, particularly 

since it was making use of water 

which otherwise would flow unused 

into the sea. Even the extent of the displacement 

was contested, with the 

government claiming that the project 

would affect 'only' 245 villages, of 

which 241 were only partially affected. 

Faced with such strongly opposing 

currents, the Court decided to 

defer to the political process. In its 

view, the decision as to whether to 

have an infrastructure project, and 

how it was to be executed, were part 

of the policy-making process, a field 

into which courts should not 

transgress. Its assessment of the 

development of PIL is illuminating: 

'PIL was an innovation essentially to 

safeguard and protect the human 

rights of those people who were 

unable to protect themselves. With 

the passage of time, PIL jurisdiction 

has been ballooning so as to encompass 

within its ambit subjects such as 

probity in public life, granting of 

largesse in the form of licences, protecting 

environment and the like. But 

the balloon should not be inflated so 

much that it bursts. Public interest 

litigation should not be allowed to 

degenerate to becoming publicity 

interest litigation or private inquisitiveness 

litigation.' The court reiterated 

its role in protecting the fundamental 

rights of the people. But, it 

continued, 'In exercise of its enormous 

power, the court should not be 

called upon to or undertake governmental 

duties or functions. The court 

cannot run the Government… In a 

democracy, welfare of the people at 

large and not merely of a small section 

of the society has to be the concern 

of a responsible government. … 

For any project which is approved 

after due deliberation the court 

should refrain from being asked to 

review the decision just because a 

petitioner in filing a PIL alleges that 

such a decision should not have been 

taken because an opposite view 

against the undertaking of the project, 

a view which may have been 

considered by the government, is 

possible. When two or more options 

or views are possible and after considering, 

the government makes a 

policy decision, it is then not the 

function of the court to go into the 

matter afresh and in a way sit in 

appeal over such a policy decision.' 

In particular, where there are conflicts 

of interest, such as the interest 

of the people of Gujurat in having 

access to drinking water, and the 

people whose houses and land 

would be submerged, it was for the 

government to resolve, and the Court 

should not sit in appeal. 

The majority of the Court 

achieved this outcome in two ways. 

First, it held that the petitioners were 

too late to challenge the construction 

of the dam itself. Although it accepted 

that complete data with regard to 

the environment were not available 

when the Government gave clearance 

in 1987, it was held that the petitioners 

should have acted immediately to 

challenge the project, rather than 

waiting until hundreds of billions of 

public money had been spent. 'It is 

against the national interest and contrary 

to established principles of law 

that decisions to undertake developmental 

projects are permitted to be 

challenged after a number of years 

during which period public money 

has been spent in the execution of the 

project.' It was therefore only its concern 

for the protection of the fundamental 

rights to life of the oustees in 

respect of the relief and rehabilitation 

measures that the Court was prepared 

to entertain the petition. 

Secondly, the Court used a very 

light touch standard of review, asking 

only whether decisions had been 

taken bona fide and with 'application 

of mind'. On the basis the very many 

discussions and documents received 

by the government, the Court held 

that it was not possible to conclude 

that the environmental clearance had 

been given without proper application 

of mind. However, there is a 

middle ground between substituting 

for the decision of the relevant 

authorities, and deference to authority 

decision-making. This can be seen 

in the dissenting judgement of 

Bharucha J. While he did not claim 

that the Court should make the decision, 

he did hold that where the 

impact on the environment could 

have disastrous consequence for 

many generations, the Court's constitutional 

responsibility under 

Article 21 (the right to life) required 

the Court to ensure that the project 

did not go ahead until those best fitted 

to do so have had the opportunity 

of gathering all necessary data 

and assessing it. Such data had not, 

in his view, been fully gathered. 

Environmental clearance was based 

on next to no data in regard to the 

environmental impact of the project, 

and therefore, in his view, could not 

be considered clearance at all. 

So far as the right to life of the oustees 

were concerned, the majority was 

content to accept the contention of the 

government that the planned resettlement 

and rehabilitation would leave 

oustees better off than before. Thus it 

was held not only that displacement of 

the tribals and other persons would 

not per se result in violation of their 

fundamental or other rights; but also 

that on their rehabilitation at new locations 

they would have more and better 

amenities than those they enjoyed in 

their hamlets; and their gradual assimilation 

in the mainstream of the society 

would lead to betterment and 

progress. The majority was in any 

event prepared to go along with a utilitarian 

calculus, which saw the cost 

born by those ousted by the dam as 

well compensated for by the benefits to 

others including fulfilling the right to 

water of people who suffer due to 


LOK ADALATS 

water shortage. Thus, the court refused 

to require the scheme to be put on 

hold, either to carry out further impact 

assessments, or to institute rehabilitation 

measures should be implemented 

pari passu with the raising of the 

height of the dam. This again contrasts 

with the dissenting judgement, 

which insisted that the rehabilitation 

projects be both designed and implemented 

before the reservoir was 

filled, rather than, as the majority 

held, simultaneously with the development 

of the dam. In practice, is 

clear that promises to rehabilitate 

have been reneged on and states have 

disputed the legitimacy of many 

claims on such grounds as that they 

are not permanently affected or are 

the sons of the original oustees. 

Nevertheless, in subsequent hearings, 

while insisting that rehabilitation be 

implemented, the court has refused to 

halt construction until such rehabilitation 

has been accomplished. 

Conclusion 

How then should the innovative PIL 

procedure be assessed in respect of 

the promotion of positive duties arising 

out of human rights? Baxi argues 

that 'the growth in constitutional 

faith overloads adjudicatory power 

with great expectations, which it 

does not quite efficiently manage 

and which it may not always fulfil.' 

The result has been that 'judicial 

activism is at once a peril and a 

promise, an assurance of solidarity 

for the depressed classes. as well as a 

site of betrayal.' Indeed, he concludes: 

'Courts are, at the end of the 

day, never an instrument of total 

societal revolution: they are best… 

instruments of piecemeal social engineering… 

never a substitute for 

direct political action.' 

This suggests that the PIL jurisdiction 

should not be judged by 

expectations it cannot fulfil, but 

instead be tailored to achieve what it 

was intended for. A central aspect of 

this mission is to step in when government 

fails to act to achieve positive 

freedom and fulfil human 

rights. At the same time, there is no 

reason to believe that courts will 

always succeed where government 

has failed. Even under the PIL procedure, 

courts have limited fact-finding 

facilities, and appointed committees 

do not in themselves have the 

resources to ensure that court 

decrees are fulfilled. In that sense, 

courts cannot substitute for recalcitrant 

governments. Nor can they 

replace political activity. What courts 

can do, however, is to act as a catalyst 

for the democratic pressures 

which ultimately make recalcitrant 

governments act. At its most basic, 

the PIL procedure enables ordinary 

people to require governments to be 

accountable, that is, to come to court 

and explain and justify their actions 

or inactivity. Beyond that, the PIL 

procedure, with its open doors to all 

interested parties, facilitates genuine 

conversation, requiring governments 

to listen and interact with civil 

society, and groups within civil society 

to listen and interact with each 

other. Most importantly, it permits 

the conversation to take place on 

equal terms. The judicial forum 

makes it possible to restore what 

Baxi calls the republican virtue of 

civility, that is that everyone is treated 

as an equal citizen. To maintain 

this, courts should take care that to 

avoid capture by those who already 

have political power in society, 

remaining true to its original mission 

of ensuring that the poor and 

disadvantaged are given an equal 

voice within judicial proceedings. 

Courts should also remain clearly 

focussed on their human rights 

role, both in respect of positive 

duties and duties of restraint. This 

entails avoiding both the temptation 

to range too far from fundamental 

human rights (as in whether small 

children should be interviewed for 

private schools) and the temptation 

to retreat into a narrow concept of 

legality or deference to authority. 

But should the court involvement 

end with the conversation? Or 

should it go much further, as the 

Indian court has done, to set the 

direction for change and then police 

its implementation? Judicial decisions 

must be taken; thus it is 

inevitable that there should be 

moments of closure in the conversation. 

However, as Habermas shows, 

such moments are only pauses in the 

discourse. Moreover, as Baxi puts it, 

there are 'civil' and 'uncivil' means of 

applying closure. The way in which 

closure is effected can open up new 

beginnings, but can also constitute a 

point of no return. The ideal would 

be for the court to energise the political 

process, rather than paralysing it 

by taking over its functions. Positive 

duties, as the directive principles 

envisage, should be primarily fulfilled 

by the initiative of the democratic 

process itself, with the courts 

acting as facilitators rather than substitutes. 

Moreover, in order to 

achieve a just closure, the court 

should not see its role as not a freewheeling 

political one, but one 

which is structured by the human 

rights values from which it gains its 

legitimacy. The danger of the PIL 

procedure is that its openness to 

many voices might lure courts into 

reaching closure in terms of interest 

bargaining rather than through a 

deliberative mechanism whereby 

equal parties to a conversation flesh 

out and apply human rights values. 

Notions of the public interest as a 

pluralist's bazaar, in which interest 

groups bargain according to their 

economic and political strength, are 

not appropriate in the judicial 

forum. But its openness to many perspectives 

is also its strength, provided 

that in transcending the limitations 

of the bipolar adversarial process, 

PIL is used to facilitate deliberation 

in place of interest bargaining. 

The court's continuing role in 

supervising the implementation of 

positive duties carries similar risks 

and strengths. By allowing litigants 

and interveners to return repeatedly 

to the court, PIL ensures that closure 

is dynamic and flexible, a continuation 

of the social conversation in 

order to find the most effective way 

of achieving its human rights mission. 

On the other hand, if it takes 

over too many executive functions, 

the ongoing supervisory jurisdiction 

of the court, whether through commissions 

or otherwise, can itself 

become rigid and inaccessible, particularly 

if it means a Supreme Court 

hearing every few months. 

Energising the political process 

requires the creation of structures 

which can themselves manage implementation, 

which are responsive to 

the range of interests, and which can 

deal with polycentric implications, 

with judicial supervision acting as a 

facilitator rather than a substitute. 

This is of course a delicate tightrope 

to walk, but is nevertheless a goal to 

be aspired to. 

 

72 


LOK ADALATS 

Is judiciary biased 

against the poor? 

The onset of globalisation and liberalisation are resetting not just terms of market and 

trade but priorities in the judicial arena too are undergoing significant changes. Hope 

ignited among poor and less privileged through the seventies by a series of epoch making 

rulings in their favour by Supreme Court in India has started fading as court has of late 

been takding quite different view of issues involved, writes Balakrishnan Rajagopal in his 

critical evaluation of the highest Indian court. Excerpts from his appraisal 

Judicial activism is a contested 

phenomenon, with the liberals 

and even the conservatives 

championing it while denouncing its 

particular manifestations. 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 bsometimes 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 

realisation 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. 

To explain why this is happening, 

the article introduces two ideas: first, 

the emergence of the judiciary as an 

organ of governance and its attendant 

problems, and second, the internally 

biased nature of the rights discourse 

which tends to reproduce 

binary arguments for either increasing 

state capacity or for increasing 

choice of goods in the marketplace. 

The article concludes by exploring 

lessons from the jurisprudence of 

other countries and international law 


LOK ADALATS 

In the area of human 

rights, studies show 

that the Court's 

seminal rulings are 

often not translated 

into reality for a range 

of reasons. In 

addition, the Court's 

activism, especially 

under the umbrella of 

SAL, has itself come 

under criticism for its 

undemocratic nature 

and urges the Indian Supreme Court 

to reinvent a jurisprudence informed 

more by the social movements of the 

poor. 

Social movements in India have 

depended heavily upon the Indian 

Supreme Court since it began its 

activist phase in the late 1970s. 

Human rights groups and concerned 

citizens have approached the 

Court for remedy, and the Court has 

responded impressively. It has 

sneaked "due process" into Indian 

jurisprudence to curb detention 

without trial, expanded the meaning 

of right to life under Article 21 

to include livelihood and environment, 

defended the freedom of the 

media, guarded the rights of 

employees, read some Directive 

Principles in Part IV such as basic 

education into fundamental rights, 

taken measures to advance gender 

justice through a progressive incorporation 

of international law into 

domestic law, and innovated procedural 

measures such as an expansive 

concept of standing, continuing 

mandamus, and court-appointed 

commissions of inquiry. Indeed, it 

will not be an exaggeration to say 

that most social movements in India 

since the 1970s have actively used 

the courts - especially the Supreme 

Court - as part of their struggle, 

whether it be the women's movement, 

the labor movement, the 

human rights movement, or the 

environmental movement. Despite 

this activism, it is now increasingly 

recognised that the impact of the 

Court on ground reality has not 

been consistent. 

In the area of human rights for 

instance, studies show that the 

Court's seminal rulings are often not 

translated into reality for a range of 

reasons. In addition, the Court's 

activism, especially under the 

umbrella of social action litigation 

(SAL), has itself come under criticism 

for its undemocratic nature, lack of 

effectiveness and judicial grandstanding, 

and its alleged violation of 

separation of powers. As one distinguished 

observer of judicial activism 

puts it, "judicial activism is at once a 

peril and a promise, an assurance of 

solidarity for the depressed classes of 

Indian society as well as a site of 

betrayal." 

In this essay, I join this critique 

and call attention to the limitations of 

judicial activism, as it has been practiced 

more recently, for a progressive 

social movement politics. Rather 

than criticizing judicial activism for 

its counter-majoritarian character or 

its lack of effectiveness on the 

ground, I focus attention on the ideological 

character of the Court's particular 

approach to human rights. In 

particular, I suggest that the Court's 

activism increasingly manifests several 

biases - in favour of the state 

and development, in favour of the 

rich and against workers, in favour 

of the urban middle-class and 

against rural farmers, and in favour 

of a globalitarian class and against 

the distributive ethos of the Indian 

Constitution - that, when taken 

together, result in an ideological 

interpretation of human rights. This 

ideological interpretation is the 

result, I suggest, of at least two 

dynamics: the first one is internal to 

the Court itself and grows out of the 

particular history of the evolution of 

the Court since 1970s, as an organ of 

state governance thereby leading to 

the emergence of what I call "judicial 

governance". 

The second, a dynamic that is 

external to the Court and is the result 

of the human rights discourse itself, 

especially as it has been constructed 

at the international level and reproduced 

at the domestic level. The first 

dynamic neutralises the transformative 

potential of the Court, whereas 

the second dynamic shows the 

inherently elitist and anti-poor 

nature of international human 

rights. These dynamics produce a 

constrained, court-centered 

approach to human rights, despite 

the occasionally inspiring judgments 

that emanate from the Court. I argue 

that this constrained approach by the 

Court to human rights is primarily 

because of its concern that its decisions 

are compatible with an overall 

"logic of the state" in which the higher 

judiciary plays its appointed role 

as an instrument of governance 

74 


LOK ADALATS 

much more often than its traditional 

role as an institution of justice. This 

notion of "judicial governance" 

imposes inherent limitations on the 

extent to which the Court can be 

expected to be an active part of social 

movement struggles for the realisation 

of human rights, particularly 

those rights that are sought to be 

exercised in conflict with statist and 

developmentalist ideologies. 

"The Supreme Court and Human 

Rights: A Mixed Record" provides a 

brief survey of the Indian Supreme 

Court's mixed record in protecting 

human rights, including the incorporation 

of international legal norms. In 

"Explaining the Mixed Judicial 

Record: Judicial Governance and the 

Ideology of Judging," I explain that 

this mixed record in protecting 

human rights is the complex product 

of several factors including the evolution 

of the Indian Supreme Court 

as an organ of governance, its historical 

tensions with the legislature, its 

expansion of the human rights agenda 

because of its prominence as a site 

of movement politics, and the political 

and class alignment of individual 

judges. "The Ideology of Human 

Rights Discourse and the Limits of 

the Court's Value to Social 

Movements" discusses the ideological 

biases that are inherent in the discourse 

of human rights itself, including 

the biases against economic, 

social, and cultural rights, which 

operate to render the Court as 

marginal to social movement struggles, 

even when it tries to incorporate 

international norms into domestic 

law. In particular, I focus on the way 

the realisation of economic and social 

rights under international law is seen 

to be dependent upon either state 

capacity or greater free market-led 

consumption and argue that this conceptualisation 

is part of the reason 

why the Court has been biased. In 

"Judicial Activism on Socioeconomic 

Rights and Social Movements: 

Lessons from Abroad," I discuss 

some recent dissident strands of 

comparative and international 

jurisprudence on human rights, 

which have had a much more active 

relationship with social movement 

politics, and ask whether the Indian 

Supreme Court can learn any lessons 

from this experience. In 

"Conclusion," I conclude by arguing 

that the Court must abandon its ideological 

approach to human rights 

and refashion its jurisprudence in 

ways that strengthen social movement 

struggles of the poor. 

SC and HR : A mixed record 

The human rights record of the 

Indian Supreme Court is, by and 

large, a product of the post- 

Emergency period in Indian politics. 

Partly because of its desire to 

atone for its mistake in deciding the 

infamous habeas corpus case, and 

thereby to recover the moral ground 

that it had lost among the public, 

the Supreme Court began an activist 

phase, interpreting constitutional 

rights liberally to expand the 

domain of freedom. Its focus on 

The Ideology of 

Human Rights 

Discourse and the 

Limits of the Court's 

Value to Social 

Movements 

discusses the 

ideological biases 

that are inherent in 

the discourse of 

human rights itself 

human rights was also politically 

acceptable given that the Janata government 

in power between 1977 and 

1979 could only favourably look 

upon a Court which was trying to 

address some of the worst legacies of 

the Emergency such as the abuses in 

prisons. Thus, in a series of cases the 

Court expanded the legal rights of 

detainees and under-trials, 

addressed custodial deaths and 

extra-judicial killings, awarded compensation 

for violation of fundamental 

rights, and expanded the substantive 

meaning of equality through 

affirmative action. The Court has also 

expanded the rights of women 

including rape victims and the rights 

of children. Its commitment to 

human rights continues to inspire 

public admiration, as the public reaction 

to the recent Best Bakery Case 

shows. In many of these cases, the 

Court has liberally interpreted the 

constitutional provisions, reading 

international law into domestic law. 

Many of these human rights rulings 

were made possible through a procedural 

revolution that is a unique 

Indian contribution to the world, 

through the democratisation of 

standing to sue and through such 

innovative devices as a continued 

mandamus and judicial commissions 

of inquiry. The Court has converted 

an ordinary list of fundamental 

rights into a veritable weapon of the 

weak through creative judicial interpretation. 

In this, the Court was 

doubtless riding a human rights 

wave, driven by a range of social 

movements that were sprouting all 

over India in the aftermath of the 

Emergency, and were seeking refuge 

in the Court after finding that 

bureaucratic and traditional political 

avenues of action were proving to be 

more intractable. 

Despite this laudable activism in 

human rights, the Court's record is 

characterised by a serious measure of 

substantive adhocism. In particular, 

the Court's record on economic, 

social, and cultural rights remains 

deeply unsatisfactory. With some 

notable exceptions, such as a judgment 

dealing with the right to education, 

the record of the Indian 

Supreme Court in enforcing internationally 

recognised economic, social, 

and cultural rights is patchy and is 

getting worse, especially when compared 

to the heyday of its activism 

when Justices such as Krishna Iyer 

and Chinnappa Reddy were on the 

bench. In the area of labour rights, 

despite the impression that the 

Indian Courts remain sympathetic to 

labour because of India's pro-labour 

laws, the record of the Court shows 

an inconsistent approach without 

affording protection to crucial rights 

such as the right to strike, although it 

has passed several important judgments 

relating to the abolition of 

forced, bonded, and child labour. 

Although many of these latter judgments 

remain current law, they were 

all issued in the early 1980s and not 

after the economic liberalization 


LOK ADALATS 

began in earnest in 1991. Indeed, a 

judgment that refects the current 

judicial trend is the Court's decision 

in the T.K. Rangarajan case, declaring 

that the Tamil Nadu government 

employees had no legal, 

moral, or equitable right to strike. 

While individual judges in the past 

have shown a great deal of sympathy 

to labour, including Justices Desai 

and Krishna Iyer, the more recent 

crop of judges appears to display less 

sympathy. This change in the attitude 

of the judges towards labour 

rights cannot be divorced from the 

broader socioeconomic context of 

liberalisation, privatisation, and 

World Bank and International 

Monetary Fund (IMF) demands for 

the reform of labor laws since 1991. 

Even in the case of land rights as a 

distinct category of human rights, the 

Court's record is far from satisfactory. 

The record of the Court during the 

first two decades of its existence could 

only be described as a grudging and 

resigned support, as it struggled to 

constrain the political branches from 

carrying out the agrarian/land reform 

that was seen to be necessary to 

realise the vision of the Constitution. 

Thus, the Court frequently held that 

such land reforms violated aspects of 

the constitutional right to property, 

especially the requirement to pay 

compensation , even as it upheld the 

protection of land reform laws from 

judicial scrutiny. The attitude of the 

Court began to change in the early 

1970s as more pro-poor judges such 

Krishna Iyer, and Bhagwati joined the 

Court began to uphold agrarian 

reform, especially under the new 

Constitutional amendments that has 

been adopted to shield land reform 

laws from judicial scrutiny. 

…This nuanced understanding 

of the importance of agrarian 

reform and land rights was, however, 

limited to some justices and temporally 

limited between the early 

1970s and the early 1980s. On the 

whole, the record of the Court has 

been more in favour of property 

rights, narrowly construed, and 

not land rights. The agonised and 

complex balance that the Court 

struck in Kesavananda Bhararti 

between the amendment power and 

the structural integrity of the 

Constitution could also be seen, 

from one angle, as a balance 

between property rights and human 

rights. Indeed, with the repeal of 

the property rights clause in the 

Constitution through the 44th 

Amendment in 1978, it could be 

said that the role of the Court in 

securing land rights (as opposed to 

property rights) has been almost 

negligible. This was so even during 

the 1970s, when the political focus 

was on the issue of land, as compared 

to the more activist role of the 

...in the case of land 

rights as a distinct 

category of human 

rights, the Court's 

record is far from 

satisfactory. The 

record of the Court 

during the first two 

decades of its 

existence could only 

be described as a 

grudging and resigned 

support... 

political branches at the federal and 

state levels. Since the mid-1980s, 

and especially since economic liberalization 

began in 1991, land 

issues have not been at the top of 

the political or judicial agenda. 

In cases relating to housing 

rights or the right to health, the 

Court has rarely shown the kind of 

aggressive public policy interventionism 

that it exhibits in other areas 

such as the environment. Even in 

landmark rulings such as Olga 

Tallis, the Court has never ruled that 

the slum dwellers actually had a 

right to housing but only that an 

eviction without notice and a hearing 

would amount to an arbitrary 

violation of their right to livelihood 

which is part of the right to life 

under Article 21. What is affirmed is 

thus a right to a process and not a 

remedy for the structural violation 

itself. The removal of the right to 

property as a fundamental right by 

the 44th Amendment to the 

Constitution in 1978 has also made it 

more difficult to advance a claim of 

right to housing understood substantively 

as a spatial assertion by any 

individual, despite the presence of 

Articles 31A and 300A which provide 

for some elementary property rights 

protections. Although the Court has 

not hesitated from using even soft 

law sources such as resolutions of the 

United Nations (UN) or even the 

International Law Commission to 

reinterpret Indian constitutional provisions 

relating to environment, sustainable 

development, or workplace 

gender discrimination, it does not 

show the same kind of adventurism 

while dealing with socioeconomic 

rights such as housing. This is surely 

not because of lack of legal sources. 

For example, in the infamous case of 

Narmada Bachao Andolan in 2000, 

the Court put its seal of approval on 

the largest Court-sanctioned forced 

eviction in the world, although 

abundant international legal materials 

existed to show that the raising 

of the height of the Sardar Sarover 

dam was contrary to current legal 

standards. Although counsel in that 

case argued that the forced eviction of 

tribal people was a violation of right 

to life under Article 21 read with 

International Labour Organisation 

(ILO) Convention 108, to which India 

is a party, the Court rejected the argument. 

But it is remarkable that counsel 

did not argue that several economic, 

social, and cultural rights of 

the tribal people were violated under 

the International Covenant on 

Economic, Social and Cultural Rights 

(hereinafter ICESCR), to which India 

is a party, showing perhaps how 

much salience the language of socioeconomic 

rights has before the Court. 

Nor did counsel argue that the 

Narmada tribal peoples had a constitutional 

right to carry on a trade or 

business according to Article 19(1) (g) 

of the Constitution or that the tribal 

peoples had a property right under 

Articles 300A and 31A. In effect, this 

has meant that constitutional rights - 

to trade, do business, or to property - 

are recognised by the Court only for 

the rich and not for the poor who are 

often outside the formal legal system 

76 


LOK ADALATS 

and, therefore, lack any formal entitlements 

under state law. 

Subsequent case law on the 

Narmada dispute only reconfirms 

the inability or unwillingness of the 

Supreme Court to ensure even a 

minimal adherence to the rule of 

law and due process in the construction 

of India's largest dam project 

and, indeed, makes the 2000 judgment 

appear benign by comparison. 

After dragging the case through the 

Court for another 5 years, followed 

by an apparently favorable ruling in 

2005 for the displaced people on 

procedural grounds, the Court has 

once again struck a grievous blow 

against the rights of the displaced 

people in the Narmada valley by 

allowing the further raising of the 

height of the main dam in the project, 

although most of the displaced 

people have not been resettled 

according to the Court's own previous 

orders. This troubling failure of 

justice has occurred despite a finding 

of utter noncompliance by the 

authorities to fulfill the terms of 

resettlement, according to a confidential 

report prepared by a Group 

of Ministers appointed by the Prime 

Minister, and which was followed 

by an unprecedented 20-day fast by 

the leaders of the affected community 

in New Delhi. 

This could be contrasted to other 

recent cases wherein the Court has 

recently displayed remarkable 

activism in upholding the rights of 

urban landlords under Article 

19(1)(g) and struck down the 

Bombay Rent Control Act. Only 

fierce agitation by the tenants in the 

aftermath of the judgment prevented 

the government from revising 

the rents upwards. On top of this, 

the Court ordered the government 

of Maharashtra to change the law 

forthwith, intruding into the legislative 

domain through activism 

that learned observers see as a violation 

of separation of powers. 

In addition, the Court's decisions 

are increasingly characterised 

by an urban and elitist bias against 

the poor and the countryside. In a 

range of cases involving conflicts 

between protection of the environment 

and workers' rights/tribal 

rights/ housing rights, the Court has 

chosen the former, without bothering 

much to balance the two objectives. 

When the Court orders polluting 

industries to be closed, the 

workers and their families who are 

directly affected are rarely heard 

before orders are issued. The 

Court's remarks often display much 

attention to the environmental 

issues that are of importance to 

urban dwellers, such as pollution, 

while showing relatively less attention 

to rural livelihoods, which are 

often intricately tied to the land and 

forests. In the Narmada case, for 

instance, the Court showed complete 

callousness regarding the 

plight of the rural and tribal people 

targeted for displacement and 

declared that "the displacement of 

the tribals and other persons would 

not per se result in the violations of 

their fundamental or other rights. 

The effect is to see that, on their 

rehabilitation at new locations, they 

are better off than what they were. 

At the rehabilitation sites, they will 

have more and better amenities 

than which they enjoyed in their 

tribal hamlets. The gradual assimilation 

in the mainstream of the society 

will lead to betterment and 

progress." Implicit in this is the 

notion that rural and tribal livelihoods 

are inferior and bound to be 

displaced through urbanisation and 

modernisation. Likewise, the 

Court's activism in the environment 

area is also characterised by a readiness 

to protect the environment and 

health of the rich while ignoring the 

structural poverty and governmental 

failure that causes these health 

problems in the first place. 

… A fourth new issue that must 

be noted is the rising concern 

about the increasing incompatibility 

between fundamental norms of 

international law relating to 

human rights and other aspects of 

international law that promote 

economic globalisation. In particular, 

conflicts are emerging between 

the international trade regime on 

the one hand and norms protecting 

human rights and environment on 

the other. Similarly, conflicts have 

emerged between the policies of the 

Bretton Woods institutions and 

norms of international law in the 

area of human rights and environment. 

The Court cannot remain 

oblivious to these developments. As 

India enforces its obligations under 

the World Trade Organisation 

(WTO) regime of treaties through 

the enactment of statutes, the Court 

is likely to see legal challenges to 

these statutes on the ground, inter 

alia, that they violate international 

human rights law, and the Court 

must decide on conflicts between 

trade law and human rights law. In 

other words, the Court cannot simply 

call for the incorporation of 

international law into domestic law 


LOK ADALATS 

in cases involving human rights, 

when there are several unresolved 

issues concerning the incorporation 

of other branches of international 

law into domestic law and the relationship 

between different branches 

of international law once they are 

incorporated into domestic law. The 

Supreme Court has not begun paying 

attention to these issues nor has 

the Bar begun engaging with them. 

In addition, questions are increasingly 

arising about the legal 

responsibilities of international 

institutions such as the WTO, 

World Bank, and the IMF, which 

remain oblivious to the broad obligations 

of all actors under international 

law to respect human rights. 

These organisations are not subject 

to the jurisdiction of the Court. 

Because of their diplomatic immunity, 

they cannot be sued in national 

courts even when they violate 

human rights norms through their 

policies and projects. To address 

this partially, the World Bank established 

the Complaints Panel in 1993 

but that body is not a judicial one. It 

does not apply international law; 

rather, it simply checks if the projects 

complained of have violated 

the World Bank's own internal policies 

known as "operational directives." 

The IMF's Ombudsman is 

even weaker and does not allow 

complaints from individuals to be 

entertained. The WTO has no mechanism 

for complaints by individuals 

or groups from states that lose in its 

proceedings. The impartiality and 

independence of WTO panels and 

its Appellate Body leave a lot to be 

desired and poor countries - let 

alone vulnerable groups within 

these countries - have very little, if 

any, say in how the WTO is run. 

Yet, these organisations have a profound 

impact on the human rights 

of poor people, farmers, women, 

minorities and indigenous groups, 

fishermen/women, and other vulnerable 

groups. These impacts are 

mostly on the livelihoods and cultural 

identity of these groups and 

individuals. The last refuge of these 

groups and individuals is often the 

Supreme Court, and the Court must 

begin to fashion a jurisprudence of 

remedies for wrongs that are 

attributable to overseas entities. 

Indeed, it is not inconceivable that 

the decisions of international bodies 

- whether the Security Council or 

the WTO - may end up being 

reviewed by domestic constitutional 

courts such as the Indian 

Supreme Court in the future, 

involving difficult questions of balancing 

different aspects of international 

law in domestic enforcement. 

In many of the new areas of challenge, 

adjudication is some way off, 

and even if begun, it may not immediately 

and by itself change the profound 

inequities of the international 

system with its misdistribution of 

resources, gender and race oppression, 

and assaults on cultural identities. 

On the other hand, an activist 

judiciary may make an important 

difference to the politics of reform 

in many social and economic areas 

by compelling national states and 

international agencies to acknowledge 

that there are limits to what 

they can do even in the name of 

"progress" or "development." 

Judicialising socioeconomic rights 

may also serve to recover human 

rights from their self-imposed limitations, 

by aiding the political and 

social demands of social movements, 

but only so long as socioeconomic 

rights are reconceptualised, 

The Court must also 

begin to pay more 

attention to emerging 

dimensions of 

socioeconomic rights, 

including the 

responsibilities of 

transnational 

corporations and 

agencies and the 

relationship between 

different branches of 

international law in 

domestic law 

as I have argued… 

Conclusion 

I have argued in this article that the 

Indian Supreme Court's record in 

protecting human rights shows a bias 

against socioeconomic rights of the 

poor and the dispossessed and that 

this bias may be explained by two 

sets of factors: a first set of factors, 

internal to the Indian system, that 

have positioned the Court as an 

organ of governance, thereby sharing 

the biases of many of the goals and 

methods of governance itself; and a 

second set of factors that derive from 

the biased nature of the human rights 

discourse itself. I have also argued 

that recent international and comparative 

judicial experience has much to 

offer the Indian Supreme Court to 

transform its jurisprudence into a 

more people-friendly one. 

Socioeconomic rights do not have to 

remain second-class rights, to which 

courts pay lip service and even then 

only so long as theyfit into a developmentalist 

world view. 

However, to do so, these rights 

must themselves be reconceptualised 

to move away from market fundamentalism, 

state fetishism, and the 

culture-ideology of consumerism. 

They must, instead, be refashioned as 

counter-hegemonic mobilising strategies 

in which the Court and social 

movements partner to achieve social 

justice. The Court must also begin to 

pay more attention to emerging 

dimensions of socioeconomic rights, 

including the responsibilities of 

transnational corporations and agencies 

and the relationship between different 

branches of international law in 

domestic law. There are creative 

opportunities for expanding the 

jurisprudence of the Court. There are 

a number of substantive and procedural 

areas where the frontiers of law 

can be pushed to make it more legitimate. 

The Court's legitimacy will 

depend to a large extent on its ability 

to offer support to social movement 

struggles which are primarily focused 

on the realisation of economic and 

social rights at a time of economic liberalisation 

and globalisation. 

—The writer is Ford Associate 

Professor of Law & Development as well 

Director, Programme on Human Rights 

& Justice MIT, Cambridge, MA 

78 


LOK ADALATS 

'Lok Adalats cannot be a solution' 

Faced with spiralling backlog of cases throughout the country, courts started looking for 

'improvisations'. Lok Adalats are results of the experiments resorted by the stalwarts of 

the judicial system, says Rajiv Khosla, former president of Delhi Bar Association. This, 

according to him, was a tacit acceptance of judicial system's inability to cope with their 

main task of hearing and deciding cases brought before them either by citizens, or state 

functionaries who draw their authority from the people of the country like the judges for 

Constitution vests authority mainly among people alone. Khosla spoke to Combat Law 

about Lok Adalats and other similar 'improvised tribunals' that are being served upon as 

'analgesics to bring comfort to a fatigued' justice delivery system. Excerpts from an 

exclusive interview to Abid Shah 

You were instrumental in passing 

a resolution by the Delhi Bar Council 

that, among other things, registered 

its opposition to Lok Adalats (LA). 

Why are you dissatisfied with the 

judicial system generally and LA 

mainly? 

Justice delivery system is not in 

control of its assigned task. It is not 

working as per the suppositions of a 

judiciary under a democracy, nor it 

has been able to come up to people's 

expectations that are as simple as 

doing justice. This is how not only 

LA but also processes like mediation 

and conciliation have been introduced. 

They are at best experiments! 

Yet they have been sold as replacements 

to regular hearings and disposition 

of cases by regular courts. 

Litigants facing delays, procrastination 

and little sign of getting their 

cases decided accept hearing of their 

cases by LA, or involvement of a 

mediator or conciliator. So these are 

at best alternative dispute resolution 

mechanisms for which the mandate 

comes through only because of the 

delay in deciding the cases and 

mounting backlog of cases in courts 

and thereby these are meant to help 

courts more than the litigants or people 

seeking justice. 


LOK ADALATS 

The government should refrain from 

switching over to tribunals and 

should strengthen the present judicial 

system, by increasing the 

strength of the judges and bringing 

such changes, as required with 

proper discussion with the representatives 

of the Bar for speedy disposal 

of cases. 

 

The government as well as the 

Hon'ble Supreme Court and High 

Court should refrain from resorting 

to Alternate Dispute Resolution 

(ADR) or any other such method, 

which includes Lok Adalats, 

Conciliation Centers, Arbitration, 

before first discussing the overall 

results and implications of such 

ADR's on the judicial system of India. 

The SC should be approached and 

the government should be called to 

initiate discussion with the Bar representatives 

on such law or laws, 

necessary for the speedy disposal 

and settlement of cases at an earlier 

stage through negotiation process, 

to find out the lasting solution as to 

which of the methods that is Lok 

Adalats, conciliation, arbitration, 

mediation or any other, is suitable to 

the requirement and need of the litigating 

public of India for settlement 

of the cases. 

 

 

 

Unanimous decisions 

The Coordination Committee of Delhi Bar Council and Bar Associations after 

deliberations on issues like Lok Adalat, unanimously passed a resolution. Highlights: 

The Hon'ble Supreme Court and 

Hon'ble High Court be requested to 

immediately discuss the matter pertaining 

to the mediation before the 

same is launched. 

The government should be called 

upon and the Hon'ble Supreme Court 

and Hon'ble High Court be 

approached to discuss ways and 

means and the alternatives, required 

for speedy settlement/disposal of 

cases. 

The government should be called 

upon not to involve foreign advocates, 

foreign machinery and foreign 

funds for initiating any mode of settlement 

of cases under the guise of 

improvement of the court complexes, 

or making alleged congenial 

atmosphere in the court or for deciding 

the future judicial setup of the 

country for disposal of the cases 

expeditiously. It is further resolved 

that in case of the mutual agreement, 

which is in the public interest, 

the same should start with the help 

and participation of advocates of the 

country with our own funds. 

The Hon'ble Chief Justice and the 

Hon'ble District Judge be 

approached to provide all necessary 

information in their offices and on 

websites regarding the name, 

standing, and amount of commissions 

given to such advocates for 

their appointment as local commissioners, 

receivers and arbitrators 

and further resolved, that Hon'ble 

Chief Justice and Hon'ble District 

Judge be requested to provide such 

information on daily basis from their 

respective offices. 

The Union government, Delhi government, 

Legal Services, DDA, 

NDMC, MCD be approached for 

direction to their respective 

departments for providing information 

regarding name, standing 

and amount paid to the panel 

advocates alongwith the number 

of cases entrusted. It is further 

resolved that these departments be 

approached for providing necessary 

information on website about 

their panel lawyers alongwith their 

bio-datas, which includes their 

relationship with the members of 

judiciary or the officers of the 

office concerned. 

The government should be 

approached for directions to the 

competent authority for allowing 

only advocates to practice in tax 

Courts/tribunals/authorities. 

The law ministry and the ministry of 

commerce and be approached to 

apprise the sentiments of the legal 

fraternity of the country against the 

entry of foreign lawyers in India and 

to further apprise that the committee 

constituted by the ministry of commerce 

in this regard do not constitute 

the representatives of the Bar and the 

Bar has no faith in such a committee. 

The Hon'ble Supreme Court and 

Hon'ble High Court can be approached 

to bring an effective mechanism to 

stop corruption in the judicial system 

and also to stop misbehaviour of the 

judges with the advocates. 

An effective selection process for 

appointment of judges be brought 

to minimise the allegations of 

favouritism, nepotism to the near 

and dear ones of the members of 

the judiciary and it is further 

resolved that, to enhance the image 

of judicial system in the eyes of 

public, the selection process should 

be more effective and transparent. 

The vigilance committee should be 

formed to keep check on the activities 

of members, who misconduct 

themselves and resort to extorting 

money in the name of judiciary. It is 

further resolved that stringent 

action should be taken against such 

members of the Bar. 

A strict vigilance should be maintained 

on the law firms appointing 

the kiths and kins of the judiciary 

and the senior bureaucrats, on hefty 

payments for their vested interests 

and the licences of partners of such 

firms should be cancelled. 

The advocates should be directed to 

mention their enrollment number as 

well as the year of enrollment on 

'Vakalatnama, so that the persons 

engaging them should be aware of 

their standing. 

Strict action be taken against all law 

firms and individuals, who are soliciting 

work through advertisements 

in newspapers and on websites, in 

India and abroad, so that public at 

large may not be misguided by such 

illusive advertisements. 

No Bar association shall participate in 

any function related to mediation, 

conciliation, Lok Adalats and permanent 

Lok Adalats etc. till the government, 

Hon'ble Supreme Court and 

Hon'ble High Court finally resolve the 

matter, after discussions with the 

representatives of all Bar Association 

of Delhi and the Bar Council. 

The Government as well as Hon'ble 

Supreme Court and Hon'ble High 

Court be approached for formulating 

scheme for the judicial set up of 

Delhi to avoid hardships to the litigants 

due to establishment of tribunals 

and quasi-judicial bodies scattered 

at different places in Delhi. 

80 


LOK ADALATS 

Why are our courts croweded 

with cases? What are the reasons? 

Lack of clear demarcation, 

administrative deficiencies and 

inability to set priorities right have 

led to this kind of state. All sorts of 

cases are put before the same court. 

There is no demarcation, no categorisation 

according to importance of 

cases. Petty cases as well as serious 

ones pile up and are treated alike. 

Matters that are not intricate should 

not be allowed to linger in courts. 

There should be fair distribution of 

work among judges. There should be 

mechanism to do away with unnecessary 

routine production of witnesses. 

In criminal cases doctors, 

policemen, FIR writers are ritually 

called by the court often just for verifying 

what they had already said or 

wrote. The justice system does not 

inspire to bring out truth and reels 

amid suspicion whereby time is 

wasted in authenticating every little 

thing howsoever insignificant. 

There is an impression and this is 

quite a creditable one that delays are 

mainly caused by lawyers who keep 

on pressing for adjournments on one 

pretext or the other. Is this not true? 

It is not because no adjournment 

can be passed without the approval 

of court. Court has to concur, pass 

adjournment and fix a date for proceedings. 

So there is no question that 

lawyers alone are responsible for 

this. Often cases are adjourned 

because witnesses, even those who 

are government servants, fail to turn 

up in the court. Often bailable warrants 

have to be issued to bring witnesses 

to the court. 

Lawyers may not be lone cause 

for adjournments and delay. But 

don't they have a role in this? 

Depends, certain lawyers may 

have a role. In the judicial process 

clients too know that certain courts 

may be well disposed towards certain 

lawyers. So for expeditious disposal 

certain lawyers may suit the 

client more. In such cases the counsel 

for the other party may well press for 

adjournment. 

You mean courts may have their 

preference? 

When sons and daughters of 

senior and prominent judges are taking 

to practice in the same city and 

pleading cases before brother judges 

of their parents, how can you say 

that select lawyers do not get preferential 

treatment from courts? 

Is this a recent trend? What has 

been the usual practice earlier? 

As a matter of practice earlier no 

kith or kin whether son or daughter, 

or brother or sister of a Supreme 

Court or High Court Judge took to 

legal practice in courts that fell under 

their (higher court's) jurisdiction or 

control. 

How come this has gone unnoticed 

and no concerted effort were 

made to set this right? 

It has not gone unnoticed. The 

Delhi Bar Council passed a resolution 

two years ago pointing out this 

and I do reiterate this with ardent 

hope that their lordships, the executive 

and the legislature would take a 

note of this in order to put fool proof 

safeguards in place to ward this off. 

You earlier said that poor administration 

leads to the backlog of 

cases. Do you mean that judicial 

administration is lax? 

I am not against LA as such. All 

I mean is that LA cannot be a solution 

as has been the case for past 

two decades. LA were introduced 

and they were not able to make a 

dent on the heap of cases that are 

pending in various courts. This 

besides other things points to the 

fact that the regular system has to 

be strengthened. High Courts have 

administrative control over subordinate 

judiciary of the state. And 

their lordships have this additional 

work as to decide about and look 

after the functioning of the district 

courts. Often the High Court 

judges are dependent on registrars 

for this whereas better administration 

could be provided by involving 

state Bar Councils, Bar 

Associations, former judges of 

High Courts and district courts, 

representative of state and central 

governments, former bureaucrats 

and police officials as also retired 

public prosecutors. 

And what should this assortment 

of people do? 

They should put their heads 

together and find ways and means to 

address the problem. 

But how can this be done? Do you 

have any specific suggestion? 

Action is required at many levels. 

Yet, I would say that the best 

guarantee for improving the system 

is to appoint more and efficient 

judges. Efficiency on the judges' 

part is very important for it not only 

reduces pendency of cases but also 

revisions and appeals. And above 

all this can reinforce faith of the people 

in an otherwise fast deteriorating 

judicial process. 

 



Militarised democracy 

A retired IPS officer, who stood out as a consientious cop throughout his career, calls 

India as a seemingly democratic State that is highly militarised, using exceptional 

brutality against its own people while still picking up leaves from old colonial hand book. 

This and more figure in his new book at whose release Colin Gonsalves spoke about 

It gives me much pleasure to 

introduce the book Political 

Violence and the Police In India by 

KS Subramanian. 

It is not often that one finds a 

senior police officer (albeit retired) 

writing about the army, police and 

paramilitary forces while, at the same 

time, calling a spade a spade. For this 

reason, KS Subramanian's book 

makes a remarkable reading. In 250 

pages, he covers a wide spectrum of 

issues on political violence. It is not 

possible to refer to all the aspects covered 

in the book in such short time in 

which I have to speak. It is, therefore, 

better that I focus on fewer issues that 

he has covered so well and which are 

dear to my heart as well. 

Without taking too many liberties 

with the writings of the author, the 

picture painted by the author is one 

of a seemingly democratic state that 

is highly militarised and not averse 

to putting down struggles for human 

rights with "exceptional brutality". 

The growth of the armed police after 

Independence took precedence over 

civilian police for beat patrolling and 

investigation of cases. This police 

force was not inclined "to safeguard 

democracy and freedom". This three 

million strong police force is possibly 

the largest in the world. 

A considerable amount of space 

is devoted, and correctly so, to the 

Central Police Forces now standing 

at one million personnel and whose 

budget is one-third that of the ministry 

of home affairs, which is Rs 210 

billion. This is an astonishing figure 

for a country where half the population 

is malnourished and the central 

government and all state governments 

would loathe increasing the 

budget for the midday meal for children 

from Re 1 to Rs 2 per day! 

The author also covers at considerable 

length the functioning of the 

Intelligence Bureau (IB). Once used 

by the British against the national 

movement, it still functions in the 

the book and policing in India. Excepts from speech 

same way oblivious of the requirements 

of a democratic state. BN 

Mallik and MK Dhar, former 

Directors of the IB, wrote extensively 

on how the IB continues to act on 

behalf of the party in power doing 

all kinds of dirty tricks including 

bugging of prominent persons 

including, once at least, the president 

of India. Its faulty understanding 

led to the intrusion of the Indian 

army into Nagaland. "The seeds of 

hatred sown during that period have 

borne the fruits of bitterness," 

the author writes. 

Ironically, while the British 

used only one battalion to 

maintain law and order in 

Nagaland, India at present 

has 30 battalions stationed in 

the state. Despite the recommendations 

of the Shah 

Commission that the IB ought 

not to be allowed to be used as 

an agency of politicians, and 

despite LP Singh's lament that the 

"catch all definition of 'national security' 

was used as a cloak to hide a 

multitude of abuses" the IB continues 

to remain a servant of the party 

in power. 

The author has devoted considerable 

attention to the naxalite 

movement in the country. He is 

right when he points out to the 

social causes of unrest. He is also 

right when he criticises the reaction 

of successive home ministers in setting 

in motion foolhardy ventures 

such as the Salwa Judum in 

Chhattisgarh. The Central 

Government has allocated 2,500 

crore for 55 Naxal inflicted districts 

in the country. However, if this 

money was used for providing free 

food, education and health care to 

the poor in those districts, there 

would hardly be any cause for discontent 

that, as the author points 

out, is the root cause of militancy. 

Sadly, instead of using available 

resources prudently and in the public 

interest, the expansion of the 

police force, the purchase of 

weaponry and related expenses 

have become norm. This caused the 

Public Accounts Commission to 

express its concern over the large 

scale and continued increase in 

these "unproductive" expenses. 

I cannot help but feel that the 

section on communalism has been 

inspired by the author's personal 

experiences when he participated 

in the Concerned Citizen's Tribunal 

on Gujarat that documented 

the massacre of Muslims by a 

fanatical majoritarian group. 

His vivid description of what 

he experienced and his conclusion 

that the police force 

was communal and participated 

in this communal 

crime lead him to the conclusion 

that when the 

police force stands firm no 

riot can happen. 

The author has some other ideas 

but I think that will need another 

book. He correctly suggests that the 

paramilitary colonial repressive 

structure of the police should be 

removed and laments that the eight 

volumes of the National Police 

Commission have not looked at this 

at all. While condemning the new 

Police Act as "too little too late" it 

will be necessary for the author to 

take up the arduous challenge of 

coming out with a sequel to this 

book, to develop specific and 

detailed suggestions for reform. He 

would need to look at the Civilian 

Oversight Committee in the UK and 

the community policing techniques 

being developed in other countries. 

He would need to squarely address 

the central issue as to how genuine 

civilian control over the police force 

could possibly eradicate violence by 

the police and corruption, and make 

the police the servants of the people. 

Despite his best intentions there 

is no sign of reform anywhere. 

82 



Why US is the only 'Superpower' 

In a controversial book, John Perkins narrates a real life tale. His personal journey from 

the member of international community of highly paid professionals who are employed 

to cheat poor countries around the globe to maintain US monopoly. Eventually he calls 

himself as a former economic hit man and deconstructs international intrigue and 

corruption, the sinister mechanics of imperial manipulations and control 

N Raghuram 

This book certainly stands up to 

the expectations raised by its 

title. It also confirms commonly 

held suspicions of the critics 

regarding globalisation 

and US imperialism 

through the 

politics of aid and debt. In a gripping 

narrative of his own story as an economic 

hitman (EHM), interlaced 

with the world affairs of his time, 

John Perkins beautifully describes 

how an elite group of men and 

women like him helped build a global 

empire of the US during the years 

he covered (1970s to 2004). In his 

own words, they "utilise international 

financial organisations to foment 

conditions that make other nations 

subservient to the corporatocracy" of 

the US. They are highly paid professionals 

who funnel money from the 

World Bank, the US Agency for 

International Development (USAID) 

and other international funding 

agencies, into the coffers of US corporations. 

The modus operandi is 

simple. The invisible arm of corporatocracy 

cultivates some smart professionals 

and plants them in influential 

positions as consultants, experts, etc., 

to push international funding agencies 

into providing aid/loans for lofty 

'development projects' to be executed 

by US corporations in recipient countries. 

"In essence, money never leaves 

the US; it is simply transferred from 

banking offices in Washington to the 

engineering offices in New York, 

Houston or San Francisco." Yet, the 

recipient country must pay it all 

back, with interest. The defaulting 

countries lose their bargaining edge 

and become subservient to the US 

foreign policy and its corporatocracy. 

EHM is not a designation but a 

nickname for managers, engineers, 

economists etc., in private corporations 

who serve as the agents of US 

corporatocracy. Perkins assures us 

that people who play similar roles 

are more abundant now, have more 

euphemistic titles, and walk the corridors 

of every major corporation in 

the world. 

Unlike the 

author, not all 

of them are recruited as a part of an 

organised conspiracy, nor are all of 

them clearly aware of their role. This 

is what makes the global economic 

exploitation system a lot more subtle, 

robust, widespread and dangerous, 

as the individuals and corporations 

BOOK REVIEW 

Confessions of an Economic HIT- 

MAN: The shocking inside story of 

how America REALLY took over the 

world. By John Perkins, 

Plume Books, 2006 

Price: $15.00 (Paperback) 

This book is an 

essential reading for 

anyone interested in 

knowing about the US 

influence in their 

country or the world at 

large, not only in 

terms of economics 

and politics, but much 

more. It is a must for 

everyone who believes 

in the "free market" 

ideology 

who stand to benefit from it get 

hooked to the ideology. If they fail, 

then there are the more dangerous 

'jackals', who use violent underworld 

methods to achieve their goals. If 

they too fail, then the time-tested 

military methods come in handy to 

the war-happy American government, 

and the military industry is 

always too happy with the growth 

opportunities opened up by conflicts 

and wars. 

The author describes his own baptisation 

into an EHM 

during one of his 

first jobs as an 

economist at 

MAIN (Chas T. 

Main Inc.), a lowprofile 

but hugely 

successful Bostonbased 

International 

consultancy company 

that was involved 

with World Bank's 

infrastructure projects 

in Ecuador. With only a bachelors 

degree from Boston University 

"which did not seem to warrant a 

position as an economist with such a 

lofty consulting company" he visualised 

himself as a "dashing secret 

agent heading off to exotic lands, 

lounging beside hotel swimming 

pools, surrounded by gorgeous bikini-clad 

women, martini in hand". 

Through his descriptions of his many 

subsequent assignments, he convinces 

us that there is a lot of truth in 

this imagination. 

In Indonesia of the 1970s, Perkins 

describes how the EHMs were used 

to make exaggerated projections to 

serve the US foreign policy and corporatocracy 

- to seduce Indonesia 

away from communism, coupled 

with the insatiable American thirst 

for oil resources. His bosses made it 

all very explicit to him, suggesting 

that it is "better to err on the higher 



side than to underestimate", and he 

obliged. Interestingly, he continued 

to do such things against his conscience 

for over three decades, fully 

aware of what he was doing, before 

he quit and decided to write it all as 

his confessions in this book. Though 

his meteoric career growth explains 

why he drifted along this path, three 

decades is too long a time to suppress 

such strong contradictions, and 

equally difficult to evoke them again 

after such a long period of suppression. 

Nevertheless, for the purpose 

of enjoying the book and benefiting 

from its revelations, it is "better late 

than never". 

The main chapters of the book 

range from controlling Indonesian 

infrastructure and oil to controlling 

Panama Canal, the Saudi Arabian 

money laundering affair, the financing 

of Osama Bin Laden, the Shah of 

Shahs and the great Iranian flopshow, 

the Columbian gateway to 

Latin America, Ecuador's oil, the 

alleged CIA assassinations of the 

Presidents of Ecuador and Panama, 

the 'wild West of energy' era, the US 

invasion of Panama, the EHM failure 

in Iraq followed by the Iraq war, 

the Venezuelan triumph . Through 

these chapters, John Perkins deconstructs 

the official American view of 

the world with his own personal 

anecdotes and revelations of events 

and conversations to which he 

was privy. 

In many ways, this book explains 

how USA, a country that doesn't 

have gold to back its currency, has an 

annual trade deficit of over 800 billion 

dollar presently, has debts of 

over five trillion dollar from the 

world, recklessly spends more than it 

earns and makes the world economy 

dependent on American consumption, 

manages to rule the world. India 

itself keeps its foreign currency assets 

of over 100 billion dollar in US securities. 

China has sunk over 600 billion 

dollar in US securities. Japan's stakes 

in US securities is in trillions. The US 

has invested in China less than half of 

what China has invested in US. The 

same is the case with India . We have 

invested in US over 100 billion dollar 

while the US has invested less than 

20 billion dollar in India. As calculated 

by some economists, today, to 

keep the US consumption-centric 

economy going, other countries have 

to remit 180 billion dollar every quarter, 

which is two billion dollar a day, 

to the US! 

This book is an essential reading 

for anyone interested in knowing 

about the US influence in their country 

or the world at large, not only in 

terms of economics and politics, but 

much more. It is a must for everyone 

who believes in the "free market" ideology, 

and that US epitomises it. Also 

a must for both who strongly support 

or oppose liberalisation, privatisation 

and globalisation. 

—The writer is Reader, School of 

Biotechnology, GGS Indraprastha 

University, Delhi 

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