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Book Review: Changing Patterns Of Justice

By Mahtab Alam

12 November, 2012
Countercurrents.org

Book: WRITINGS ON HUMAN RIGHTS, LAW AND SOCIETY IN INDIA:

A Combat Law Anthology, Edited by Harsh Dobhal

Human Rights Law Network (HRLN), New Delhi,

December 2011, pp. 688, price not stated.

It may sound ironical but the fact is that the production of literature on human rights as well as human rights violations is moving at the same pace. There is hardly any dearth of Human Rights literature in India. However, the available literature can broadly be divided into two categories, academic and non-academic, the latter mostly comprising journalistic works, reports by rights groups and bodies. Academic works, despite being rigorous and well articulated, hardly prove useful in making a comprehensive understanding of the issues pertaining to human rights in India, due to the use of technical terminologies and jargon. Similarly, the non-academic literature fails to impress jurists, legal practitioners and policy making bodies, regardless of being grounded and full of first hand information. The biggest lacuna of this kind of literature is ‘oversimplification or generalization’ of the facts. In between lies the semi-academic and quasi-legal work as both the above categories of the literature have their own limitations.

The Combat Law, a Human Rights Bimonthly Magazine was started in 2002, initially under the joint editorship of two senior human rights lawyers, Colin Gonsalves and Mihir Desai, and later under the editorship of long time journalist, Harsh Dobhal. It has to its credit the merit of gaining enormous popularity in a very short period of time. The publication has sought to bridge the gap between academic and non-academic style of writings, and is read amongst legal practitioners, academicians, students and activists alike. It serves as the reference material for a wide range of people working on issues related to human rights, not only in India but in various other countries of South Asia as well. Notably, over the years, as rightly claimed by the editor, the publication, ‘apart from publishing established experts, gave immense space to a number of individuals, otherwise shunned by the mainstream media, to write, question, rebel, experiment and express’. The book under discussion is an anthology of selected writings published in the Combat Law between 2002 and 2010. The subjects covered in the anthology are mainly socio-legal, political and economic in nature, encompassing the entire gamut of human rights issues. It ranges from the issues of Criminal Justice, State Repression, and Trafficking to Communalism, Patent, WTO, Special Economic Zone, Right to Information, Education, Food, Housing, Work and other issues of contemporary as well historical relevance.

Commenting upon the prevailing situation of the Criminal Justice System in India, the editor writes, ‘In an age when the market has deposed politics and technocrats, who peddle the theory and practice of growth rule the roost, the poor stand little chance of securing any justice, as even judiciary falls prey of reformist and restructuring zeal…In the process, criminal justice has become more lopsided than it ever was in the past. Criminal Justice is for all practical purposes dead… The higher judiciary seems to have overturned its own protective rulings of the past diluting the guarantees provided under the Constitution’ (p. viii). On a similar note, Professor Upendra Baxi, renowned academician and legal scholar, in his article ‘Access to Justice in Globalised Economy’, observes, ‘Law reform, especially the efficiency of the administration of justice, becomes more visibly the instrument of the new economic policy’ (p. 75). Dealing with the issue of Criminal Jurisprudence, Dhairyasheel Patil, former chairperson of the Bar Council of India opines, ‘The constitutional law protection for accused persons was undermined in case after case in a hasty rush to change the common man’s perceived view of the judiciary. Nobody bothered to introspect and ask the question as to whether the view perceived was a general one or one relating to the upper middle classes. The vast majority of the poor in any case see the criminal justice system as a great engine of oppression where torture is wide spread and condoned by the judiciary and innocent people are roped in while the rich get away scot-free’ (p. 107) . Justice (retd.) Hosbet Suresh, a former judge of the Mumbai High Court in his article, ‘Right not to be treated as Untouchables’, while referring to Article 17 of the Indian Constitution states, ‘Unfortunately, Article 17 only provides for treating untouchability as an offence, and leaves the rest with the police’ (pp. 140-41). He further argues, ‘Untouchability cannot be eliminated by the police alone. It cannot be removed by just making it an offence without taking positive steps to end all social discrimination and promote equality. It is time to redraft Article 17 in the form of a right—Right not to be treated “Untouchable”. The State will then have an obligation to prevent violation of this right, and also fulfill its duty’ (p. 141). In an earlier chapter, former bureaucrat and chairman of People’s

Commission against Atrocities on Dalits, P.A. Krishanan presents a detailed empirical study on the implementation of the Prevention of Atrocities Act, titled, ‘Atrocities Against Dalits: Retrospect and Prospect’. He also presents a possible plan of action to end atrocities against dalits and the roles that the different governmental as well as non-governmental organizations can play in this regard.

The section on environment starts with an article by the founder of HRLN and senior lawyer of the Supreme Court, Colin Gonsalves, on the biggest chemical disaster of India, the Bhopal Gas Tragedy. Presenting a detailed and broader analysis of the case, Gonsalves in his essay, ‘The Bhopal Catastrophe: Politics, Conspiracy and Betrayal’, comments, ‘(A)fter Bhopal, the separation between what judges pretend to say and what they actually said grew. Grand judgments were not uncommon but they had little effect because the operative parts of the orders were like little pipsqueaks as compared to the lion’s roar of the quotation and lofty ideals. These techniques of the judiciary caused the public to believe that the judiciary was receptive whereas quite to the contrary, judicial decision making was characterized through this period by timidity and domination by industry’ (p,168).

The eighth section of the anthology is on the less talked about issue of human rights: Labour. As with the previous chapters of the anthology, in this too, there is a lot of discussion on the role of judiciary in the protection of workers’ rights. Sanjay Singhvi, a practising labour lawyer at the Mumbai High Court, citing various judgments of the Supreme Court, comments that, ‘the courts were for long considered to be the last bastion of hope for people and, the Supreme Court as the last friend of poor workers, particularly, from the unorganized sector. Not anymore’ (p. 285). Another veteran labour lawyer, Gayatri Singh, in her article, ‘Judiciary jettisons working class’, concludes, ‘The judiciary has abandoned the working class. Globalization has caused a sea change in the thinking of judges. The impressionist view that globalization offers a panacea for everything will soon be proved wrong as the crises in the present international financial situation demonstrates. Millions of the middle class people have been rendered destitute by the melt down in the markets.

Workers’ Provident Fund amounts were also directed to be invested in share markets, by no less a person than the Prime Minister of India. Globalization no longer glitters but the damage caused by the decisions of the last ten years to labour rights is irreversible. Contract and casual workers fell into destitution. Labour and industrial courts became virtually defunct. The working class lost faith in the judiciary because it failed to maintain a balance between capital and labour’ (p 310). In the section on Right to Education, noted educationist Anil Sadgopal, presents a detailed and comprehensive analysis of the issue of right to education vis-á-vis the issue of the Right to Education Bill. Shanta Sinha, the present chairperson of the National Commission for Protection of

Child Rights (NCPCR), while sharing her field experiences of her visit to the State of Bihar, Chhattisgarh, Madhya Pradesh and Uttar Pradesh, states, ‘Education being a public good must nurture and enhance the principle of inclusion, non discrimination, equity and justice. It must be an entitlement and a right that is guaranteed by the State. In a context when it is becoming an acceptable discourse to run down the State giving

it a cause to abdicate its responsibilities, there is a need to constantly bring to the forefront, the right based perspective that resonates with the values of democracy, justice and equity as enshrined in the Constitution of India’ (p. 360).

The section on women deals with important issues like domestic violence, sexual harassment, rape, female foeticide, gender and sexuality, at length. Urvashi Butalia, noted writer on women’s issues and co-founder of Kali for Women, talking about gender in the construction of the nation argues, ‘For women, citizen of the nation is (then) mediated through the family, so that they are never autonomous subjects, and therefore cannot be full citizens. For those then who fall outside this frame of the heterosexual family, the nation has little to offer, let alone citizenship, and rights’ (pp. 599-600). She further opines, ‘Today, when nations are being made and remade in all sorts of different ways, and when the voice of the State blurs into the voices of the self-appointed nationalists, then all those who resist and oppose these voices are under threat. Understanding this is the first step to resisting this’ (p. 600).

The anthology has a special section on South Asia, with special focus on issues of Nepal and Sri Lanka, and also some articles on the Tibet liberation movement. Like the diversity of issues and topics covered, the writers in this anthology belong to very diverse backgrounds. They are legal luminaries, jurists, practising lawyers, professors, researchers, students, journalists and activists. Of the 21 sections, the sections on Criminal Justice, Environment, Communalism, State Repression, South Asia, Right to Education and Labour are the most comprehensive. The only thing for which the anthology can be found wanting is that most of its articles were written over a period of time, and in a particular context. Nevertheless, the anthology as a whole successfully reveals the changing pattern of judiciary and other democratic institutions with regard to the protection and advancement of fundamental rights guaranteed by the Constitution of India. And this is what distinguishes the anthology from most of the available literature on human rights in India.

Mahtab Alam is a Delhi based Civil Rights activist and journalist. He is associated with the Coalition for Protection of Human Rights Defenders [CPHRD]. This review was originally published in the Book Review Monthly, October, 2012. Email:[email protected]

 




 

 


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