I’m at a workshop on South Asian legal studies at the University of Wisconsin at Madison. One of the speakers here cited this article, “Scandal in the Palace” in Outlook by Arundhati Roy on the Sabharwal controversy. I had not noticed it before, and I thought I should highlight it. What I found most interesting is that Roy offers a sweeping denunciation of judicial activism and public interest litigation, two sacred cows of modern constitutional life in India:
Ironically, judicial activism first rode in on a tide of popular discontent with politicians and their venal ways. Around 1980, the courts opened their doors to ordinary citizens and people’s movements seeking justice for underprivileged and marginalised people. This was the beginning of the era of Public Interest Litigation, a brief window of hope and real expectation. While Public Interest Litigation gave people access to courts, it also did the opposite. It gave courts access to people and to issues that had been outside the judiciary’s sphere of influence so far. So it could be argued that it was Public Interest Litigation that made the courts as powerful as they are. Over the last 15 years or so, through a series of significant judgements, the judiciary has dramatically enhanced the scope of its own authority.
I find some elements of the piece rambling, unnecessarily acerbic, and flatly inaccurate. It is unclear whether Roy is adequately aware of the history of PIL and the citizen movements it engendered. I, for one, believe that the enshrining of a fundamental right to education is a direct consequence of PIL developments. And I’m puzzled by Roy’s attack on the rule of law, which is a basic feature of the Constitution. She offers this homily on jurisprudence without a basic understanding Indian legal catechism:
Today, as neo-liberalism sinks its teeth deeper into our lives and imagination, as millions of people are being pauperised and dispossessed in order to keep India’s Tryst with Destiny (the unHindu 10% rate of growth), the State has to resort to elaborate methods to contain growing unrest. One of its techniques is to invoke what the middle and upper classes fondly call the Rule of Law. The Rule of Law is a precept that is distinct and can often be far removed from the principle of justice. The Rule of Law is a phrase that derives its meaning from the context in which it operates. It depends on what the laws are and who they’re designed to protect. For instance, from the early ’90s, we have seen the systematic dismantling of laws that protect workers’ rights and the fundamental rights of ordinary people (the right to shelter/health/education/water).
But Roy does have the right to offer this critique. And like her other articles on the Court, I believe she makes an important contribution to public discourse about the law and legal system in India. I welcome thoughts from our contributors and readers.