How change happens in India – via the Supreme Court and ‘judicial activism’

With the US going to the polls today, and memories of hanging chads and lawyers swarming like flies round voting stations, it seems like a good time to talk about India’s version of judicial activism, based on my recent visit

At a national level, when it comes to rights and poverty, India seems to combine a sclerotic legislature, a fitfully interested government,right to food campaign and a hyperactive judiciary, which produces a rather unique brand of politics. Social activism in India often seems to involve getting the Supreme Court to rule that the government has to do X, then mobilizing around implementation of the ruling. Whether it’s on the Right to Food (right) or the Right to Education, the Court has been involved in some of the best known progressive legislation in India.

And that culture filters down to the grassroots. Activist talk is dotted with references to PILs – public interest litigation. Women in slums told me they were bringing claims under India’s Right to Information Act to find out what their children’s schools should be providing, or to get community toilets functioning again (cutting through the bureaucratic fog – who is actually in charge of these toilets, which have been shut for the last 7 years?).

In contrast, activism towards the other arms of government – legislature and executive – seems rather neglected at national level, although at state level (at least in Uttar Pradesh, where I visited) things look more familiar, with litigation seen only as a last option when lobbying the state government or parliament has failed.

Back in Delhi, one example of judicial activism is homelessness, where the Supreme Court last year decreed that there should be one homeless shelter for every 100,000 residents. Next to Nigambodh Ghat, the main crematorium in Central Delhi, on the banks of the polluted river Yamuna, I visit a homeless shelter built on land shunned by other residents, due to the clouds of smoke from burning bodies rising from the open air pyres next door, whose flames light up the night. A hundred men of all ages are sitting cross legged on their sleeping mats, talking to charismatic activist Harsh Mander (who is also the Commissioner to the Supreme Court on the right to food) about depression and drug rehab (they all seem to be drunk or high, which makes the meeting slightly nerve wracking). Harsh then ropes me in to hand out passbooks – tomorrow, clutching their proof of address (even if it does say ‘homeless shelter’) they will all go down to the bank to open their bank accounts. In a month’s time they will get their biometric UID cards, digital gateways to rations, cash transfers and an official identity. Old India and new are constantly colliding in this way.

According to Harsh ‘the Supreme Court is the most effective arm of government on social policy. I’d been talking to government for years on homelessness without result. I wrote a letter to the Supreme Court saying people were dying in the Delhi winter, and this is the result.’

Shailaja Chandra, ex chief secretary of Delhi says “if the Supreme Court doesn’t react and pull up the government, who can? But they can only hammer the government, they can’t do anything themselves. It’s like a dog, baring its teeth. But it’s well informed and does shame ministers into action, both centrally and at state level. PIL is effective; litigants do their homework, and come up with solutions to implement.”

150px-Emblem_of_the_Supreme_Court_of_India.svgFine, but not all activists are as well connected as Harsh, and not all PILs are progressive – plenty of industry lobbyists use the tactic, leading to an overall environment that is volatile, characterized by abrupt and unpredictable changes in policy direction.

There is also the risk that ‘lazy campaigns rush to the courts’, instead of building a solid base in civil society. And litigants don’t always win – eg on the Narmada Dam campaign, where the Supreme Court jailed novelist and activist Arundhati Roy for contempt.

And judicial activism is an incredibly slow and clunky way to make policy. In his new book ‘India Grows By Night’, Gurcharan Das cites a Ministry of Finance study in the 1990s that revealed a backlog in India’s courts of 25 million cases that take up to 20 years to settle. That backlog would need 324 years to dispose of at the current disposal rate. I doubt things have got much better since then.

But until the other arms of India’s government become more responsive, judicial activism is likely to remain an important weapon in the progressive movement’s armoury.

(Also see my previous book review on judicial activism)

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