The islands of the backwaters of Kerala sink by inches each year.  To slow the sinking, mud from the riverbed is piled up on shore.  Men, hanging off the side of a canoe, take turns to dive down and scoop up great lumps of the stuff – an extraordinary sight from the shore.

One, if prone like me to over-intellectualise, might ponder the mystery of mud: that a thing which defiles if flung with malice can, if used purposefully, protect what might be lost.  And so it is with criticism of public institutions (indulge me for a moment). Criticism motivated by personal animosity does little but soil both target and perpetrator.  But almost all criticism, however ill-conceived, however intemperately expressed, plays a part in keeping a liberal democracy above water, if only by serving as a reminder that every public institution is accountable to those it serves.  There are of course special considerations when it comes to the judiciary – juries must not be prejudiced, for one thing – but the general point holds: what looks like the flinging of mud might, in fact, keep us all from drowning.

It is with this thought in mind that I revisit my vexation with comments by Justice Jain in the course of a hearing on the Godhra riots.  Justice Jain complained about letters sent by  Teesta Setalvad’s NGO to the U. N. High Commissioner for Human Rights.  We don’t know what the letters say, except that they have to do with witness protection.  His Honour said that the letters were a “reflection on us” and that “outside agency” cannot be allowed.

Now, if the content of the letters were ever to come to light I might be forced to swallow my words, but my problem with his Honour’s outburst is it betrays an intolerance of criticism – a misunderstanding of mud, if you like.  In a post-colonial polity there are, naturally, sensitivities about criticism from outsiders.  But, most of us would accept, international human rights bodies can play a valuable rights-protective role in monitoring and commenting on domestic legal proceedings.  (Think, for instance, of Amnesty International’s criticisms of the conviction and sentence of Binayak Sen).  Given the ongoing struggle to hold accountable those responsible for the violence in Gujarat, almost a decade after the fact, it is perfectly reasonable for domestic NGOs to be in communication with the U. N. system.  It is simply no business of the Supreme Court’s.  It undermines the dignity of the Bench to suggest otherwise.  There is no place for carping about “outside agency”.

And on that note, my own carping on the subject should draw to a close.  Best wishes to all for a very happy new year.

The Hindu last week carried a report on a rather fascinating comment by a Supreme Court judge in the course of a hearing on the Godhra riots case. Justice D. K. Jain apparently took issue with letters that the Centre for Justice and Peace, Teesta Setalvad’s NGO, had written to the U. N. High Commissioner for Human Rights. We aren’t told about the content of these letters, unfortunately, except that they have to do with ‘witness protection’. Justice Jain complained:

It [the case] is our matter. Do you mean to say that from Switzerland they will provide witness protection? What you have to do with the international body? Are you justifying that? Then we have to consider it in a different perspective. It is a reflection on us.

You [the CJP] may have association with hundreds of bodies around the globe, but why is this letter sent to the international body? What is the business of the international body? Don’t we have the capability to provide protection to witnesses? We can’t allow an international body to interfere with what is happening in our courts. This cannot be allowed. We cannot permit outside agency.

I have much to say about these comments, but I’m worried that if I say what I think in my current state of high agitation I might get into trouble. (The entirely rational reason for that reticence, given the current state of contempt law, is a topic for another day).

So I’d like instead to start a conversation. Accepting, of course, the handicaps of having neither a copy of the letters, or a verbatim transcript of Justice Jain’s comments, or the context of the exchange between bench and bar, what should we make of what his Honour said? Write below and, once I’ve calmed down, I’ll join in.

Please help,

Not a Martyr

The statements, published in Woolas’s campaign literature and circulated prior to the election, were that Watkins had attempted to woo the vote of Muslim extremists, that he had refused to condemn extremists who had advocated violence against Woolas, and that he had reneged on his promise to live in the constituency.  Having found Woolas guilty of an illegal practice, the court was bound under the 1983 statute to void the election as well as impose a three-year ban on election to public office.  Woolas announced immediately that he would seek to have the judgment judicially reviewed.  He has, though, been suspended from the Labour party, the deputy leader saying that it was ‘no part of Labour’s politics to try and win elections by telling lies’.

The judgment raises many questions of interest for students of law and politics alike.  Did the court strike the correct balance between the competing rights and interests, such as the protection of personal reputation, the public interest in free and fair elections, and the right to freedom of expression?  Woolas’s lawyer has argued that the judgment will have a chilling effect on political speech.  An argument of that kind is now the prevailing wisdom in the context of English libel law, which is widely considered to provide too little protection to freedom of expression; a major review of the law, currently taking place, is likely to recommend its overhaul.  From a more systemic perspective, does the role of the court under the 1983 Act strain the separation of powers?  It is not without significance, perhaps, that in the very first paragraph of the judgment the exact margin of Woolas’s victory is mentioned: 103 votes.

These matters of high principle may well overshadow a smaller but no less interesting issue: the line drawn in the judgment between the personal and the political.  Section 106 of the 1983 Act requires that the statements of fact at issue are ‘in relation to the candidate’s personal character or conduct’.  This was found with respect to each of the three statements mentioned above.  Take, for instance, the statement that Watkins had attempted to woo the vote of Muslim extremists.  The judges held that the statement attacked Watkins’s character because it ‘suggests that he is willing to condone threats of violence in pursuit of personal advantage’ (para. 82)  Similarly, it was held that the statement that Watkins had reneged on his promise to live in the constituency was relevant to his trustworthiness (para. 109).

The problem with this approach is that many, perhaps most, derogatory statements of fact about a rival’s political conduct can be interpreted, without too much violence to language or commonsense, as derogatory statements about personal character or conduct.  Consider three commonplace statements that might be made in the course of an election campaign:

1. ‘He has promised to do x but does not really intend to carry it out if elected’.
2. ‘She has only adopted policy y in order to placate her party’s favourite special interest’.
3. ‘His plans were costed carelessly and will be far more expensive to implement than he claims’.

Statement (1) is relevant to honesty and (2) to integrity.  Statement (3) seems like a statement relating only to political conduct, but the failure to take due care could be argued to be a defect of character.  The court’s approach means that the political threatens always to collapses into the personal, which undermines the distinction drawn in the 1983 Act.  The judgment, though carefully reasoned in other respects, is vulnerable on this point, and the cases on which the court relies should be reconsidered.  That said, the distinction itself is problematic.  It is difficult to think of any legal test that could neatly separate the political and the personal.  The political tends to implicate the personal and – given that these days nothing in a politician’s private life is off-limits to media scrutiny – the personal is always political.

The court said that “the scales of justice must tilt towards the right to development of the millions who will be benefited from the road… as against the human rights of 35 petitioners herein.”  This does not mean, of course, that a concrete “right to development” now exists.  But that it has been framed in these terms by the country’s highest court is nevertheless an important step – and one that places a focus on development firmly in the mainsteam of how India’s judiciary has tackled its responsibility towards issues of governance in this country.  (The initial few words are themselves memorable , oddly reminiscent of the famous Martin Luther King quote, Barack Obama’s favourite, that “the arc of the moral universe is long, but it bends towards justice.”)

Heady stuff.  Pity, for one thing, that it praised the wrong court.  The ‘scales of justice’ quote is part of a section in which the Supreme Court summarised rather than necessarily endorsed the judgment in the High Court.

The Supreme Court’s own observations on whether the Yamuna acquisition is for a ‘public purpose’ are rather more prosaic (and not at all reminiscent of Dr King):

The Expressway is a work of immense public importance.  The State gains advantages from the construction of an Expressway and so does the general public.  Creation of a corridor for fast moving traffic resulting into curtailing the travelling time, as also the transport of the goods, would be some factors that speak in favour of the Project being for the public purpose.

Hardly a landmark, the Supreme Court decision is a standard example of the courts’ approach in cases of land acquisition for companies.  In these cases, the question of ‘public purpose’ is a simple cost-benefit calculation stacked almost inevitably against landowners.  For decades now, with very few exceptions, courts have green-lighted land acquisitions for companies because of benefits to the public that are claimed will arise, such as industrialisation, job-creation, and technology transfer.  The courts do not ask for these benefits to be measured, guaranteed, or assessed in proportion to the hardships imposed on landowners, nor indeed do they question the developmental model in which, say, industrialisation is necessarily a benefit to the public.  Reasonable people will disagree on the soundness and fairness of this approach, but let it be seen for what is rather than as tarted up in the language of justice and rights.

****

In any event, in this case and in others in recent years – notably in Singur – the legal battle is something of a side-show to the real theatre of conflict.  A few days before the release of the Yamuna decision, in response to protests at Aligarh and elsewhere the Mayawati government announced a ban on the forcible acquisition of agricultural land.  The ban expressly extends to the acquisitions for the townships adjoining the Yamuna expressway which the subject of the Supreme Court challenge.  The government also announced a substantial hike in compensation for land given up consensually for development projects, including the introduction of a thirty-three year annuity of Rs. 20,000 per acre per annum.  This annuity, it should be noted, will be paid over and above compensation for the land itself.

The generosity of these promises reflect the electoral liability that land acquisition has become in recent years.  The ramping up of compensation may help to quell some or most of the opposition to land acquisition, but what is to be done when, as in the Niyamgiri Hills episode, landowners refuse to be bought off?  Manmohan Singh has promised that the proposed reforms to the Land Acquisition Act, which would limit acquisitions for companies to 30% of the land required for a project, will be tabled in the winter session of Parliament.  But with Mamata Banerjee reportedly still opposed to the 70:30 rule, or indeed any role for government in acquiring land for companies, the Bill’s chances of passing seem slight – at least, perhaps, until after the 2011 Bengal state assembly elections.

Of the many things to be learned from this work perhaps the most important, for the present reviewer, has been the realization that even a foreigner can know the truth about a people by participating in their struggle against the violence of the state, and that conversely, no one, not even a native equipped with the most advanced research techniques and open access to information, can grasp this truth if he remains outside this struggle.  May this book blast the ivory towers.

Historians and social scientists will recognise this as one position in the long and ongoing debate about the meaning, possibility, and value of ‘objective’ scholarship.  Unfortunately, the same cannot be said for legal scholars, who tend generally to be indifferent – if not actively hostile – to questions of methodology.

The debate has particular resonance for legal scholarship in India.  The importance of such scholarship can hardly be exaggerated: as virtually any page of any newspaper on any day will reinforce, law and legal institutions are – for good or for ill – central to Indian public life.  So what do we want of Indian legal scholarship?  ‘Objective’, dispassionate commentary on Bills, statutes, judgments?  Or scholarship that candidly expresses solidarity with those oppressed by the workings of the law, that – as it were – participates in the struggle?  Things being as they are, can we understand Indian law – or, at any rate, those tracts of the law which elicit controversy – but from the perspective of those it ill-serves?  Perhaps we need both kinds of scholarship, equally or more of one than the other, or some synthesis of the two – or, indeed, something else entirely.

In a stocktake in 1987 of Indian legal scholarship, Rajeev Dhavan asked:[2]

… what is the task of legal research? To follow the practitioner’s market? To explore doctrine as an end in itself? Or to try to make· sense of the socio-political state of affairs and understand the diverse meanings of law with which it operates?

Now, more than two decades on, and with – if anything – a growth in the law’s power and reach, serious thinking on these questions is needed more than ever.  There will be some minor and tentative contributions here in the coming weeks and months.  As always, your contributions are more than welcome.

[2] R Dhavan, ‘Means, Motives and Opportunities: Reflecting on Legal Research in India’ (1987) 50 Modern Law Review 725, 735.

The claim is that the full, informed consent of the Gram Sabhas of any affected tribal peoples is required under the Forest Rights Act, 2006 for any proposal to divert forest land for mining.  The claim, made repeatedly and without qualification (see p. 44–56), is surely dispositive of the whole controversy: given that such consent is obviously not forthcoming, the Vendanta proposal cannot go ahead.  The problem is that it is by no means clear that the FRA requires such consent and so the report gives the unfortunate impression of playing a little fast and loose with the law.

According to the Forest (Conservation) Act, 1980, the diversion of land for non-forest purposes is prohibited except with the prior approval of the Central Government.  The report claims that because of the Forest Rights Act, 2006, which confers certain rights and duties on tribal peoples like the Dongria Kondh, any proposed diversion requires the consent of their Gram Sabhas.

At one point (p. 52), the report claims that section 4(5) of the FRA expressly requires ‘community consent’:

According to section 4(5) of FRA, there can be no removal or eviction from forest land unless the tribal rights under FRA have been recognized and the verification procedure is complete; and the community consent after following due procedures is obtained in writing.

This is misleading.  Section 4(5), quoted below, says nothing about consent:

(5) Save as otherwise provided, no member of a forest dwelling Scheduled Tribe or other traditional forest dweller shall be evicted or removed from forest land under his occupation till the recognition and verification procedure is complete.

At another point (p. 44), the report claims that the Act confers a general right of refusal against development projects:

… the Act clearly recognized that free, informed, prior consent of the communities is essential in governing these eco-systems and therefore laid out clear and transparent administrative procedures for obtaining this consent. In framing the issue of consent, the Act clearly indicates that the community had the rights of refusal, if the proposed development project was injurious to their well-being.

This, again, is misleading, though less so.  Section 3(2) of the FRA expressly requires the consent of Gram Sabhas for small-scale development projects for the benefit of villages themselves, but is silent on other kinds of projects:

3(2) Notwithstanding anything contained in the Forest (Conservation) Act, 1980, the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:-

(a) schools;

(b) dispensary or hospital;

(c) anganwadis; …

Provided that such diversion of forest land shall be allowed only if,-

(i) the forest land to be diverted for the purposes mentioned in this sub-section is less than one hectare in each case; and

(ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha.

At another point, the report claims that the requirement of consent is implied from the responsibilities bestowed by the FRA on Gram Sabhas:

Section 5 of the FRA empowers the right holders to protect the wildlife, forest and biodiversity of Niyamgiri hill top and surrounding areas by constitution of committees for the protection of wildlife, forest and biodiversity in the villages through Gram Sabhas as required by Rule 4 (e). This also places a duty on the State to seek their informed consent before permitting any diversion of the forest land under Forest Conservation Act (FCA) (as also already required by [Ministry of Environment and Forests’] August 3, 2009 order).

Put aside the reference to the Ministerial order for a moment.  It is not self-evident that the statutory empowerment of Gram Sabhas to protect wildlife and so forth means that their informed consent is required for diversions of forest land – why, for instance, do Gram Sabhas enjoy more than a duty to be consulted?  The same gap in reasoning is demonstrated elsewhere in the report (at p. 56) where the requirement of consent is ‘automatically’ implied from the rights conferred by the FRA:

Rights such as the right to habitat, and the right to conserve, protect and manage community forest resources, automatically imply that the consent of the community is required prior to authorizing any damage or destruction of their habitat or community forest resource. Without this, such rights would obviously have no meaning.

The Ministerial order of August 3, 2009 referred to above is equivocal on the point.  The order (annexed to this document) says that proposals for diversions under the 1980 Act must be accompanied by, among other things:

… (c) A letter from each of the concerned Gram Sabhas, indicating that all formalities/processes under the FRA have been carried out, and that they have given their consent to the proposed diversion and the compensatory and ameliorative measures if any, having understood the purposes and details of proposed diversion.

… (f) Obtain the written consent or rejection of the Gram Sabha to the proposal.

Clause (c) seems to support the report’s claim; clause (f) points in the other direction.

This is not to say that an argument cannot be made that the FRA implies the requirement of Gram Sabha consent.  Section 4(2) provides that rights under the FRA may be modified or resettled in order to create inviolate areas for wildlife conservation, but only on the condition (among others) that:

(e) the free informed consent of the Gram Sabhas in the areas concerned to the proposed resettlement and to the [resettlement or alternatives] package has been obtained in writing.

If such consent is required for diversions of forest land for such a compelling societal interest as wildlife conservation, it could be argued that consent must also be required for diversions in the interest of economic development.

The point of all of this is not that the decision by the Minister was necessarily wrong; the report makes plenty of other allegations of illegality that have not been examined here.  The point, simply, is that a report commissioned by the GoI on a subject of this sensitivity must engage more seriously with the law on its own terms if a Minister’s decision is to be ‘purely on a legal approach’.

Some aspects of the film will resonate here, such as the paltry compensation offered and the use of goondas to pressure the family to shut up, take the money, and move out.  Other aspects will need a lot of tweaking: for example, there are no violent agitations in ‘The Castle’, only remarkably expeditious hearings in various courts.  And of course the Aussie humour will need translating (‘Compulsorily acquired?  You know what this means don’t you: they’re acquiring it compulsorily!’).  The real challenge will be to find the Indian Eric Bana, who in his feature-film debut plays a sweet-hearted amateur kickboxing fanatic.  Suggestions are welcome.

Now, to keep things simple and punchy the film should probably end in late 2008 when Tata was booted out of Singur.  That’s because, at least from a narrative point of view, nothing much of note has happened since.  Though agitations against land acquisition continue, their intensity and frequency appear to have dimmed (or at least are less frequently reported).  One reason why is that land acquisition for companies in West Bengal is, for now at least, politically impossible.  Another reason may be the nation-wide ban on land acquisition for SEZs imposed in January 2007, which still stands (at least on paper).

The Bills introduced at the end of the 2007 to amend the Land Acquisition Act and to create minimum legal entitlements to rehabilitation and resettlement benefits have lapsed.  They are unlikely to be re-introduced, at least in their current form: Mamata Banerjee has reportedly refused to countenance the acquisition of land for companies in any circumstances.  The proposed amendment to the Land Acquisition Act would limit governments’ role to acquiring 30% of the land required for a company’s project if, and only if, the company had already acquired at least 70% of the land.

The merits or otherwise of the 70:30 rule is a difficult question which will be the subject of future posts.  More generally, future posts will try to bring to the forefront the competing moral and economic arguments on the propriety and efficiency of land acquisition for companies.

What seems all but certain, however, is that the phenomenon is here to stay, given the immense pressure on land, the prevailing model of development, and – needless to say – the money at stake.  Give it a few years, and there’ll be plenty of material for Land Acquisition: the sequel.