Prashant Bhushan’s talk in Oxford (and legal and political criticisms)

Update: Arvind Narrain’s LASSNET paper linked below (and here).

Prashant Bhushan (noted public interest lawyer) presented a carefully-researched paper titled Sacrificing Human Rights And Environmental Rights At The Altar Of “Development” in Oxford on the 14th of March 2009. The full-text of the paper can be accessed here. Citing several cases, the talk concluded as follows:

The trend of recent cases, therefore, suggests that (1) the Court has often subordinated civil liberties to the perceived imperative of state security, particularly in the context of the recent “war on terror”, (2) The Courts’ liberal and expansive pronouncements on socio-economic rights under article 21 have not been matched by a determination to implement those rights, (3) That since the liberalization of the Indian economy, even the courts’ rhetoric on socio-economic rights have been weakening, (4) That very often the Court has itself ordered the violation of those rights, violating in the process even the principles of natural justice, (5) That whenever socio-economic rights of the poor come into conflict with environmental protection, the Court has usually subordinated those rights to environmental protection, (6) That whenever environmental protection comes into conflict with what is perceived by the Court to be “development” or powerful commercial vested interests, environmental protection is usually subordinated at the altar of “development”, or such powerful interests. There are of course exceptional judgements which defy these trends, particularly from High Courts.

One strand of discussion that emerged after the talk (although not necessarily directed towards Bhushan’s paper and one with which he sympathised) related to the nature of academic criticism of judgments. The argument was that Indian legal scholarship has usually offered political criticism of judgments, but a ‘legal critique’ has not always been forthcoming. While the importance of the former cannot be denied, the latter may sometimes be useful (if only strategically, since legal language is one that judges understand better).

The discussion made me think about Arvind Narrain’s paper presented at the LASSNET conference where he made a similar point in the context of the queer rights movement. Except those adhering to legal realist schools of thought, few of us will consider the following claims to be legally plausible (whatever our position might be ideologically):

1. That by providing due process norms for determination of who is a foreigner, Parliament had in effect allowed unrestricted immigration, which amounts to external aggression under Article 355–therefore the IMDT Act was unconstitutional.

2. That the Chief Justice of India’s Office is not part of the Supreme Court, nor is it a ‘public authority’ under the RTI Act.

How then do our top lawyers get away by saying things any competent first year undergraduate will know to be nonsense? Don’t legal academics need to share some blame for allowing them to get away with such arguments? (Of course there have been exceptions, and the claim that most critique is only political is a huge generalisation. The claim is admittedly anecdotal, and perhaps only relative. Yet, I believe the broader argument stands.)

Legal and political critiquesSome readers have asked me to elaborate upon the distinction between legal and political critiques. Admittedly, the distinction is not always clear. But very broadly (and with many exceptions), I think the effect of an order in a judgment can be criticised on the basis of various political values, while how that result was achieved (i.e. the reasoning in the judgment) may be subject to legal criticism. In effect, the latter claim recognises that interpretation is not an unrestricted exercise–therefore, it believes that the (caricatured) legal realist claim that ‘law is what the judge had for breakfast’ is wrong. One may disagree on what makes an interpretation illegitimate. Examples include Hart’s famous ‘vehicle in the park’ problem, or Dworkin’s hypothetical judge Hercules who must adopt the best normative principles that fit within a given legal history. Whatever may be one’s approach to legal interpretation (except Legal Realism), at least some interpretative exercises will be illegitimate. This is an internal legal critique–when the Court says that delay by rule of law procedure for nationality determination encourages ‘external aggression’ and therefore such procedure is unconstitutional, that is not an interpretation most normative appraoches to law can sustain.This is only a general explanation. Sometimes law itself may deem certain results to be impermissible–criticising these results can thus be legal as well as political. I must reiterate that I think there is enormous value in political critiques. I just think that there is value in legal critiques as well (strategic as well as normative). In failing to make them, we in fact allow the law to be what the judge had for breakfast.

Written by
Tarunabh Khaitan
Join the discussion

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  • Prashanth Bhushan is not just a brilliant attorney, but a passionate one too. His relentless pursuit of social justice in his cases does not seem to end with securing a formal judgment from a Court. He writes extensively on judgments and has indeed secured the respect of a vast section of the public for his fearless style of writing and for taking upon the higher judiciary.

    Yes, we don’t have a formal or established setting in this country to criticize judgments of the Courts and to this extent, we must admit, we lack a mechanism to publicly discover individual errors in judicial reasoning.

    So, as the saying goes, the first step in overcoming a problem is to psychologically accept that a ‘problem exists’. We have fiercely rejected that problems plague our judicial branch of the Government. Like all public attitudes, this resistance too will give way to ‘acceptance’ some fine day. I look forward to that day and I sincerely wish strength and courage to those who already wage a war to reform the judiciary in our country.

    The Gita says, ‘success eventually follows those who pursue community goals with unswerving devotion’.

  • Dear Tarunabh,

    Thanks for the link to Prashant Bhushan’s paper – some of the themes that are on display here are present in his earlier work, but it is interesting to see his analysis of more recent decisions. Thank you for making this available in the public domain.

    My comments are about your substantive argument in the rest of the post. I was a bit confused when I read the first version of your post, and find that your expanded and revised version still did not help clear that confusion. I think the ideas you are exploring here may well be worthy of a full length paper – part of the reason why I am having trouble with your views may be because an exchange of this sort needs to be carried out at greater length, and may not suit this medium’s strengths. Your ideas may also serve as an excellent conversation-starter on the state of contemporary legal and academic literature in India.

    I have two points in response to your post, which are essentially seeking clarifications (and elaborations) of your expressed views:

    1)I think you need to clarify your understanding of legal realism, because you make several references to them in the post, most of which seem disparaging of their contributions. As it happens, I have recently been reading the original work of some of the better known realists (specifically Jerome Frank and Karl Llewellyn), and wish I had come across their rich work earlier. I think my own exposure to the realists was mostly through secondary literature which, more often than not, caricatures and misconstrues their claims. Your statements about the realists make me wonder if your experience has been similar to mine. So, as you acknowledge, none of the realists actually made the claim about judges’ breakfast (or meals generally) affecting their decisions. Only Frank came close to this in Law and the Modern Mind (1949), and if you read him in context, it is clear that he had a very well developed conception of ‘fact-sceptic realism’ and his comment makes sense when you consider the types of biases (or idiosyncrasies) he is analyzing. Llewellyn and other ‘rule sceptic’ realists were – far from the legal nihilists they are often projected to be – genuine idealists, who sought greater not lesser legal certainty. You seem to suggest that the realists only offered political critiques and somehow rejected legal critiques. Quite to the contrary, much of Llewellyn’s work focused on legal and judicial reasoning, and showed that while the law does (and should) constrain, traditional principles of construing statutes and precedents offer conflicting, but equally legitimate, paths for judges to go down in reaching their final results. By demonstrating the potential for indeterminacy in the law, Llewellyn, instead of endorsing the idea that judges should follow their fancy in making decisions, was emphasizing that conventional understandings of law do not in fact constrain judges and lawmakers. Llewellyn spent several years drafting the Uniform Commercial Code in the U.S. and is recognized as its principal drafter. He was also involved in several other codification projects – hardly what you would expect from someone who is perceived as lacking faith in the ability of law to constrain. My own view is that the realists have had a much more profound effect on law, legal education and legal practice than the work of more ‘analytically’ inclined philosophers who followed them. Returning specifically to your post, I think you need to explain why you believe that legal realists would not object to the reasoning on display in the episodes relating to the IMDT Act and the SC-RTI Act. It is my understanding that a realist analysis would not only deconstruct the legal shallowness of the arguments advanced (by dissecting the constitutional and statutory text as well as the applicable precedents and prudential reasons offered), but would also zero in on the extra-legal considerations which possibly account for the actual decisions reached in these two episodes, ending up with a strong normative denunciation of these episodes.

    2)My second point is related to the first, and is in relation to your distinction between legal and political critiques. First, I am not clear as to your claim regarding the tendency of recent Indian legal academic scholarship to focus exclusively upon political criticism of judgments. Are you referring to scholarship about constitutional/public law issues or more generally? I guess I would need to see examples and cites to specific articles/books to better understand what you mean by this distinction, and why you find it problematic. Secondly, I wonder if the divide between legal and political critique is as sharp as you suggest. Is it really possible to so clearly isolate the legal from the political?
    Beyond these two points, at least for me, a critique which completely ignores either the legal or the political dimension is quite often just a bad critique, and what it offers would probably not meet the standards of good legal or political critique. In my view, the best scholarship (whether by academic lawyers or lawyer academics) tries to provide a balance between legal, socio-political and pragmatic analysis. To me, a purely doctrinal approach to a legal issue is interesting, but what makes it stand out is when it is combined with a broader perspective, by, for instance, discussing the practical, political and strategic problems in remedying the problem identified, and then arguing for a solution which is both principled (meaning backed by hard law and legal reasoning) and pragmatic (meaning politically feasible and practically implementable). While that may be my preference, I am not sure I would insist on reprimanding those scholars who provide only legal or political analysis, provided they do so with care and competence. After all, some scholars may be limited by their resources, the avenues for research open to them, or simply by the constraints of time and energy which preclude a more holistic analysis.

    This has taken much longer than I anticipated – but if my purpose is to urge you to be clearer, I have to be reasonably clear in my comments as well. And, clarity can sometimes require greater length and space (hence my suggestion for a paper on the topic).

  • dear arun

    thanks very much for your very helpful comment which touches on so many important issues. my responses are, yet again, half-baked.

    on legal realism:
    my post does acknowledge that the view presented was a ‘caricatured’ one–I should have emphasised this more than in just a parenthetical caveat. my carelessness was perhaps influenced too much by having been a student (in a summer school a few years ago) of marti koskenniemi and his denormativising arguments from realism in the context of international law (at least in the classroom, he emphasised time and again that there is no good or bad legal argument, just a useful or useless one). he is, as you point out, unrepresentative, and your point is taken. i should have been more careful.

    on blogging and other more serious modes of discussion:
    more generally, it is an issue i am myself only beginning to think about, and my comments (like all my other comments on this blog) are tentative and exploratory. i agree with you that serious claims need to be made seriously, and i will perhaps not write in a journal (or even a newspaper) what i write on a blog. but a blog enables one to throw (provocative?) conversation-staters about which one’s own views are unformed. you are right that these ideas need more detailed treatment, but i have always found the blog’s ability to facilitate conversations about half-baked ideas very fruitful.

    legal-political distinction:
    my attempts to admit that the distinction i am trying to point out is not entirely clear have been obviously inadequate. i will put it to inadequacy of expression rather than actual disagreement with the fact that the distinction is fuzzy. same goes for any suggestion in the post that ‘political’ critiques are not useful.

    on ‘scholarship’:
    i agree no individual scholar can be faulted for offering either a completely political or a completely doctrinal critique (if these categories hold at all). but if either of them is paid less attention to by scholarship at large, there might be a problem.

    by scholarship, admittedly used very loosely, i include scholarly articles, nature of judicial reasoning, even legal op-eds and law as taught in our law schools. I also don’t mean to restrict it to public law scholarship. i have been lucky to have gone to NLS and receive an education which largely emphasised political criticisms as well as oxford which largely emphasised doctrinal ones (again, both are massive generalisations). but i wish each of them was more holistic.

    whether the claim that indian ‘scholarship’ is indeed guilty of largely ignoring doctrinal critiques is true or not will certainly demand the rigorous analysis that you say it will. i was trying to pass vague impressions and intuitions as facts, and the caveats notwithstanding, you are right to catch me on that.

  • Arun,

    Your first point is well taken, and far too deserving of a place on the main page than the comments section. I wish Venkatesan would consider it a good idea to put it there.

    While on the distinction between legal and political critiques, I believe examples are always useful, and in this case, a good one of a combination of the two is the book Vikram recommended to me – Prashant Bhushan’s own ‘The Case that Shook India’ – I read it over the last week, and must agree with him – its brilliantly detailed, well analyzed, wonderfully married to the politics of the day, and surprisingly objective.

  • Arun and Tarunabh, thank you for starting a conversation on a very important theme.

    I remember having a similar debate with Sudhir (Is this the Oxonian effect? ) over whether Indian legal scholarship was overtly preoccupied with finding political explanations. The debates in American constitutional law would show that internal legal critiques are not as value neutral as they would seem to be, and its an argument that can be deployed from both sides. The one thing I learnt in lawschool, is that there is are few positions that cannot be justified according to law.

    If you decide that certain legal interpretive exercises are illegitimate, then you are actually making a choice about values, which really is not that different from a political critique.

    So why is there this (in my opinion ) false dichotomy being created between legal and political critiques. The problem arises from how the body of scholarship of law in India is constituted. There is a considerable body of dry constitutional commentary (Seervai, DD Basu) which takes the constitution (or another statue) and does a clause by clause analysis, which is meant to guide lawyers. There is a considerably richer body of scholarship by social scientists (or lawyers drawing on social science methods) who use law and the constitution to engage a critique of the Indian state and politics (Dhawan, Brendra Crossman and Ratna Kapur, Zoya Hasan, Mehta). And then there is Granville Austin’s magisterial but journalistic account.

    The one scholarship that this literature does not answer is whether the law matters. To what extent is this field autonomous/semi autonomous? Does legal reasoning act as a constraint? Is there such a thing as a legally coherent correct answer? (interesting these questions have been asked by legal anthropologists working on India, but largely at a village or district level)

    It’s a question I’ve been struggling with while formulating my thesis (which is why this is so incoherent) I would love more discussion on this.

  • thanks for all the questions. i think my hunch regarding the difference, howsoever fuzzy, is correct. of course, i need to do a better job of presenting and defending it, and i hope to return to it in another post, or perhaps even an article. for now, i just hope to destabilise the assumption that there is no ‘legal critique’ that can be distinguished from, if not independent of, a political critique. of course, a legal critique is also normative–how else could be criticise anything without appeal to norms. i hope to come back some day with a more elaborate discussion of these different norms.

    just one final note on institutional affiliations. i have already admitted that recognising the distinction is an ‘oxonian’ thing, just as much as denying it is an ‘NLS thing’ – oxford takes philosophy as the natural companion to law, at NLS it is politics. but must one choose before exploring the possibility of having them both?

  • The difference between a legal and political critique is maintainable if we do not saddle the legal with more than what it is. A critique based primarily on (a) legal materials and (b) reasons which have been used by legal institutions and actors is a legal critique. This does not go to say that this critique has no political content. Reasons which are based on political positions, which are inevitably sought to be justified by moral arguments are always in the background. But unless used by institutions which are legal, they remain purely political and moral arguments. They are candidates for becoming legal arguments. Joseph Raz explains the relationship carefully in “Incorporation by law” (Legal Theory). John Gardner touches upon the same difference in “5 1/2 Myths about legal positivism” (American Journal of Jurisprudence) in the context of legal reasoning. Surprisingly the same idea resonates in Dworkin’s arguments on institutional autonomy (Taking Rights Seriously).
    Even the hardest of the exclusive legal positivists recognise the necessary connection between law, politics(my reading) and morality. What is interesting is that despite the connections, each of them remain distinct concepts sharing a complex relationship with the other. But is it useful to maintain this distinction? Does it perform a function of some value? It might be useful to maintain the distinction for purposes of (1) institutional accountability and professional responsibility of the Judiciary and (2) to preserve the primary virtues of the rule of law: that we know what the law is thus making it easier to guide ourselves, that lawyers and judges know what are the materials they are supposed to rely on while engaging in interpretive excercises, that there is certainty in finding out reasons for action.
    I think it is possible to say that Indian academics have mostly used arguments which have been used by disciplines other than law to evaluate judicial decisions, provided the empirical evidence exists. But the discussions on this post have included doubts about the possibility of making such an argument if the evidence existed. I think it is possible. This does not deny Arun’s view that both legal and political critiques are necessary and often complement and supplement each other. An undeniable virtue of interdisciplinary studies.
    It is just that the legal critique is more useful for lawyers in court. It also holds up the mirror for institutional actors and may thus further the cause of professional responsibility, institutional integrity and coherence. It would perform a distinctive function for actors in court. Its proximity to actions in court is greater than a critique based on reasons which are not legal; reasons which stem from materials which are not legal but which definitely contribute to our understanding of law.
    It seems that how the sharp the distinction is between the legal and the political depends on the nature of the norms which are called legal. These norms undoubtedly have a political and moral base. But being legal gives them a relative autonomy from the political and the moral which is useful for purposes of those who work with the law in courts. In legal and political philosophy the raging debate is still on- where is the dividing line. A helpful insight is the one Hart provides: for the actors it is important to know which rules to appeal to as a standard of criticism and a reason for action. This does not deny the undeniable relationship that the rules share with other disciplines. But for the actors the identification of rules is important because without them there is no separate purposeful activity in which they are actors. Similar ideas are found in John Rawls, ‘two conception of rules’. I feel that if stretched to its logical conclusion, there is no clear division between the legal and political where one completely excludes the other. But some identities exist despite their non-exclusiveness. The legal is one such identity which is dependent on every other discipline but serves a useful purpose for society. Like Finnis said, you would need law even in a city of angels.