A German scholar has been waiting since 2001 for the Calcutta High Court to decide a contempt case against him. Until then, his book on the role of PILs in urban India cannot be distributed.
The ongoing contempt of court case against Arundhati Roy for writing a magazine article is a reminder of the chilling effect that a particular form of judicial intervention can have on public debate, journalism and scholarship in India.
Fifteen years ago, Oxford University Press published my book Taking the State to Court – Public Interest Litigation in Metropolitan India. It obviously dealt with matters of public interest, but did not get much public attention because the Calcutta high court started a contempt case against myself and several other parties a few weeks later. Because of the court matter, OUP discontinued the distribution of the book. The case is still pending – and the Indian public has thus been deprived of an in-depth analysis of serious urban problems. I believe this is a great loss for India since issues such as government dysfunction, corruption and public mismanagement continue to haunt its policy process.
I do not believe that I have committed contempt of court in any way and that I certainly never intended to do so. I have argued my case before at length in academic essays, including one co-authored with my PhD supervisor Prof. Dr. Rüdiger Korff of Passau University in the Socio-Legal Review.
To my knowledge, I was the first sociologist to study empirical cases of public interest litigation (PIL). I focused on environmental cases in the Kolkata urban agglomeration and started my research in the mid-1990s. By that time, many legal scholars had written essays on the merits of various PIL judgements. Their debate revolved around the question of whether what the courts were doing in PIL cases was correct or not. My approach was quite different.
As a sociologist, I wanted to understand
- how non-governmental groups defined public grievances,
- which parties held stakes in the matters and how they expressed their interests,
- what urban planning for those areas concerned had achieved and not achieved,
- what the dynamics within the government sector were in relation to the cases
- what difference the judiciary made.
The book’s argument
To cut a long story short, what I found was this: the government of West Bengal had decided in the 1960s that town planning for the agglomeration had to improve and set up the Calcutta Metropolitan Development Authority (CMDA). The CMDA failed to make the difference desired, so the state government passed a town planning act in the 1970s. By the 1990s, the CMDA had produced various documents and plans in which it stated repeatedly that the urban environment could not improve unless town planning was strictly enforced. Very briefly put, the CMDA itself declared that it was unable to do its job properly.
In the 1980s, PIL gained momentum in India. The first cases dealt with breaches of human rights, but by the 1990s, environmental litigation had taken off as well. In Kolkata, NGOs took the state government to court because they disagreed with the course of the agglomeration’s development and the state of its environment. Major cases concerned the future of the East Calcutta Wetlands and civic amenities in Howrah. Moreover, there was a case going on before the Supreme Court of India concerning tanneries. It had been filed by a Delhi-based lawyer and initially concerned tanneries in Kanpur, but it had been extended to tackle tannery-related environmental hazards along the Ganga.
At closer inspection, it turned out that all of the grievances were related to a lack of town planning as well as the lack of enforcement of whatever town planning had been done. It also turned out that some people within the state agencies and even the state cabinet were in favour of the NGOs, and that many of them had even – more or less secretly – been supporting and briefing them. There was a rift within the government with one side trying to enforce government authority to implement policy and the other side manipulating rules with an eye to staying in power. The conflicts were not fundamentally one of civil society versus the state.
Basically, state agencies were allowing some private parties some individual gains to the detriment of Calcutta’s environment. In some cases, private interests were not apparent, but government agencies were plainly dysfunctional while pretending to fulfil their duties.
The role of judges
The judges dealt with the cases in what I called an impressionistic way. They did not tackle the underlying issue of town planning. There was a good reason for doing so; courts are equipped to hold trials, they are not equipped to plan megacities. Any judicial institution that tried to do town planning would fast prove dramatically overburdened. The judges tried to solve individual grievances as best they could, but shied away from assuming duties they knew they were unable to perform.
Many judgments made sense, and what is more, some made a difference on the ground. When I was doing my work, the practice of public morgues allowing dead bodies to rot for months under the open sky was discontinued in Howrah. That court order set an example for all of West Bengal. In the wetlands, the waste recycling region was protected by court order and the state government respected that decision in the ongoing development of East Kolkata. Howrah Maidan was opened to the public again. At the end of the 1990s, the tanneries had not been relocated yet, but it was clear that the Supreme Court judgment demanding their relocation would be enforced.
The judges heard conflicting parties in court, thus establishing a kind of public sphere that subordinated hierarchical power to reasoned arguments. This kind of public sphere had previously not existed. In the court setting, what mattered was not the formal ranking of a party, but the logic and coherence of its thinking and the quality of the evidence submitted. The judges decided on the basis of such debate, and many of their orders were well argued accordingly. Moreover, the judges promised to monitor implementation, thus putting pressure on the state agencies to fulfil their duties.
The judges’ approach turned the high court and the Supreme Court into public forums in which citizens could confront state agencies with reasonable demands with the hope of those demands being thoroughly assessed and achieving decisions that would change matters on the ground level. Accordingly, my book’s conclusion argued that they were deepening democracy and fostering meaningful public participation in public affairs.
The charge of contempt
At this point, you will probably wonder why such a favourable assessment might have irritated the high court to the point of starting contempt proceedings. The problem was that my book included sections that dealt with the public reputation of the judiciary and the Calcutta high court in particular. These sections were necessary. It is impossible to assess the socio-political relevance of an institution without considering its public image.
In the 1990s, the higher judiciary’s reputation was good in the sense of being better that that of most other institutions of the Indian state, but it was nonetheless tarnished. The truth is that most Indians did not trust state institutions, and that included judicial ones.
I never intended to scandalise or irritate the court in any way. To this day, I am convinced that my book is fair and balanced. My duty as a social scientist was to offer a comprehensive assessment of the socio-political role of the courts in PIL cases. To put it very crudely, even gossip, if it spreads widely enough, has a bearing on an institution’s reputation and is therefore relevant in sociological terms.
The contempt petition was filed against myself and several other parties, including most prominently OUP. The petition was based almost entirely on sections of one single chapter that concern the public image of the court. To a considerable extent, this chapter is based on references to the Indian media’s coverage of court affairs. At the time, it was quite obvious that the courts did not enjoy unquestioning public trust.
Friends and colleagues tell me I have become the victim of a human rights abuse, as my freedom of expression and my freedom to pursue academic work have been limited by the high court without a final judgment. They also tell me that human rights violations in India are normally more traumatic in terms of broken limbs and unending detention or even lost lives, whereas I was able to pursue a journalistic career quite successfully in Germany thanks to my academic work. They have a point.
Public interest needs academic freedom
However, I believe the Indian public is the real victim. They have been denied insights into the merits as well as the limits of PILs – not in the context of legal principles but in the context of empirical social life. India’s metropolitan centres are suffering environmental crises. They are globally known for severe air pollution, for example. Moreover, the nation suffers various forms of state dysfunction. Frustration with corruption has bred a mass movement and brought to power a new party in Delhi.
As a distant German observer, however, I still feel that these grievances are expressed in an impressionistic way and that the underlying problems are not tackled. The quality of the urban environment is a metaphor for the entire republic. It is impossible to achieve a healthy urban environment without appropriate town planning. In the same way, it is impossible to improve the institutional order in a lasting way without substantially redesigning it.
Freedom of speech, freedom of the press and academic freedom serve a socio-political function. They are not primarily about allowing individuals to do whatever they please, they are about facilitating meaningful public discourse. The fate of my book proves that such discourse cannot be taken for granted in contemporary India. The case has been kept pending for 15 years – and I have not even been notified by the high court. This state of affairs sends a dire warning to any Indian scholar who is interested in the kind of studies I have done. Though studying the empirical reality of PILs would be a service to the nation, it may easily ruin an aspiring Indian sociologist’s career – especially, if the research results are interesting.
The conclusion of my book was that the courts were fostering reasoned discourse in India in the 1990s. Its fate, unfortunately, proves that the conclusion may have been too optimistic.
Hans Dembowski is the editor of the Frankfurt-based magazine Development and Cooperation.