Having just finished reading Anuj Bhuwania’s book and discussing it with him yesterday in a panel at Oxford (he joined in by skype), here are some thoughts on this influential contribution to Indian legal scholarship. I write as a sympathetic reader, who has previously endorsed Bhuwania’s central claim that there is a need for a less impact-orientated and more institutional analysis of the Indian Supreme Court. I also think this is a very significant book that substantially challenges the orthodoxy in a manner that was long overdue, and sets the agenda for future research. It is well-written (if a tad too polemical), easy and engaging to read, and full of many insights and interesting metaphors (like the equation of a PIL setting not with ‘panchayats‘ but with the ‘durbar’, p 52).
Retelling the Origins Story
I found the revisionist history of the origins of public interest litigation (PIL)–tainted by rather than redemptive of the original sin of the Emergency–the most compelling part of the book (ch 1, ‘Competing Populisms’). Bhuwania shows how Indira Gandhi set the agenda for the confrontation with the judiciary, its terms and its discourse. In the judicial embrace of a radical ‘indigenous’ legal informalism that spoke for an undifferentiated, essentialised, ‘people’ (what Upendra Baxi would celebrate as ‘demosprudence‘), Gandhi had the last laugh. If ADM Jabalpur was the hallmark of judicial embarrassment over its role in the Emergency, the Court’s second failure to stand up for Habeas Corpus in AK Roy in 1982 did not cause any blushes.
Under-argued Central Claim
Bhuwania’s call to eschew consequentialist/impact-driven analysis sits uncomfortably with the analysis in Chapters 2 and 3 of the book, which takes a close look at two long-lived PILs with very destructive impact. The impact of these PILs on livelihoods and housing needs of those affected underpins the narrative. To be fair, these chapters are replete with mentions of institutional and procedural deficiencies throughout the lives of these PILs: “At no point during these court proceedings were the slum dwellers of Nagla Machi given a chance to be heard in the case” (p 96), for example. But Bhuwania assumes that these procedural inadequacies are so obviously problematic that mentioning them will suffice.
This prevents him from developing a more sustained defence of (a measure of) institutional formalism. What the book assumes rather than offers is a clear and robust normative defence of proceduralism and formalism. There are hints of the argument Bhuwania wants to make, this emerges in his summary of recent scholarship sceptical of PILs for institutional reasons (in ch 4): “Once a frankly instrumental role is accepted for PIL courts, with its decisions moored only by concepts as capacious as ‘social justice’, whose meaning necessarily vary with the zeitgeist, it should be no surprise that the issue taken up by a new generation of PIL judges for their social activism are of a very different sort from the original votaries of PIL.” (p 116) Bhuwania seems to be suggesting that bad outcomes in PIL cases should not surprise us, that this eventuality is built into their anti-formalist design. The book stops short of, and thereby implicitly nudges future scholarship towards, developing a structural critique that argues for the need for formalism in adjudication with greater nuance and sophistication.
I believe that the main weakness of the book is its methodology. Bhuwania calls his approach ‘constitutional ethnography’, but does little to explain what this means, except for some cryptic quotations from Kim Lane Scheppele (p 10). We gather that he aims to demonstrate the ills of PILs through ‘vignettes’ (p 6), ‘illustrations’ (p 12), and ‘revealing cases’ (p 41). At no point, however, does the book explain or defend its case-selection. The reader is never convinced that these cases are, in some way, representative, or indicative of the ailments of the PIL system as a whole. This opens Bhuwania up to the criticism that his examples are cherry-picked, a criticism that seems particularly apt given the polemical style of the book.
It may be that Bhuwania finds the cases he talks about so troubling that they raise serious concerns about the entire system. Indeed, his analysis in ch 2 & 3 leaves the reader in no doubt that the current state of affairs is intolerable, even if they weren’t being replicated in any other case. However, one wonders if a more ambitious claim lurks underneath these cases–that rather than the fringe minority of PIL cases, they are in fact quite representative in some deeper sense. A more traditionally sociological–rather than his chosen anthopological–method might have been more suitable to answer the research questions Bhuwania sets for himself. A sociological method that took issues of case selection, choice of dependent and independent variables, and causation more seriously, might have better illuminated the nature and extent of the malaise, and consequently, whether it needs band-aid or surgery.
To reiterate, I make these critiques as a sympathetic reader. Even in its shortcomings, the book outlines the agenda for future scholarship on PILs. I would recommend it very highly.