Archives: Journal Articles

K C Sivaramakrishnan, who passed away recently, was the rare bureaucrat who brought his field-level experiences to bear on his understanding of the defi cits of the country’s democratic system. A tenacious crusader for decentralisation, Sivaramakrishnan’s eye for detail and unwavering commitment to rigour made him stride through university and ministry corridors with equal ease.

The article assesses and compares the behaviour of India’s higher judiciary on Prevention of Terrorism Act (POTA) cases with the pattern of rulings on previous preventive detention and anti-terror laws in India. It tests the hypothesis in Scaling Justice: India’s Supreme Court, Anti-Terror Laws and Social Rights, that POTA cases would see more pro-state rulings, particularly after incidents of terrorism, but that Muslim minorities would not be unduly targeted by the judges. The findings from the 103 POTA cases affirm the hypothesis that the judgments of the high court and the supreme court do not exhibit a pattern of disfavouring Muslim accused. However, a more disquieting element with worrisome consequences for civil liberties is apparent in the framing of the anti-terror cases. The court is more likely to rule in favour of the state when a case is framed as ‘Islamic terrorism’. The impreciseness of this and other terms such as ‘urgency’ and ‘security threat’ have expanded the scope of the application of anti-terror laws, diluted the ‘due process’ protections, and reduced the ability of judges to make a distinction between the political aspirations and the religious affiliation of the accused. This has diluted the procedural and substantive protection for civil liberties of citizens and vulnerable minorities in India.

Suggested Citation: Ghosh, Shibani. ‘Judicial Activism and the Environment in India’. South Asian Journal, (2010). pp. 44-56.

Water law and policy are in principle clearly distinct at the national and international levels. The former is binding while the latter is not. Yet, over the past two decades, the respective space of water law and water policy has evolved to the point where the distinction between the two is sometimes sidelined.

At the international level, the increasing pre-eminence of water policy is due in part to the absence of binding legal frameworks in various key areas of the water sector. This has led international water governance to be significantly different from other sectors. At the national level, reforms in the water sector over the past twenty years have often been heavily influenced by the non-binding international water policy instruments.

This article explores the trajectory of water law and water policy at the international level and in India over the past two decades. It highlights the specificities of the water sector in this regard and some of the problems that arise when policy ends up either replacing law or as a framework superseding law, thereby throwing out of gear most of the basic principles around which democratic legal orders are based.

India’s long -standing official position in global climate negotiations has been that any discussion on agriculture must be held in the realm of adaptation, not mitigation. The government considers the sector a clear out-of-bounds sector with respect to emissions reduction as agriculture is a sensitive issue and pursing mitigation may produce negative impacts on peoples’ livelihoods. Is this apprehension sound? Is there any trade-off between agricultural development, adaptation and mitigation?

One stated agenda of the new government is a commitment to addressing business concerns by smoothening the path to environmental clearances for projects and lowering transaction costs. The Supreme Court had earlier directed the central government to set up an environmental regulator at the state and at the centre. But do national and state regulators provide an effective alternative to the current institutional structure?

Although “rule of law” is often regarded as a solution for religious conflict, this article analyzes the role of legal processes and institutions in hardening boundaries and sharpening antagonisms among religious communities. Using case studies from Sri Lanka, India, Malaysia, and Pakistan, we highlight four specific mechanisms through which legal procedures, structures, and instruments can further polarize already existing religious conflicts. These mechanisms include the procedural requirements and choreography of litigation (Sri Lanka), the strategic use of legal language and court judgments by political and socioreligious groups (India), the activities of partisan activists who mobilize around litigation (Malaysia), and the exploitation of “public order” laws in contexts framed by antagonism targeting religious minorities (Pakistan).

Recent debates by former officials and analysts on India’s nuclear doctrine highlight certain credibility problems. Two inter-related pillars of the doctrine—the pledge of ‘No-First Use’ (NFU) and the assurance of a ‘massive retaliation’ response to a nuclear strike—have been scrutinised. The backdrop shaping the debate is the pressing need to discover options to produce a de-escalation or deter an escalation in Pakistan’s sub-conventional war. This is the context for the ongoing contestations around India’s nuclear doctrine. Is the doctrine lagging the security challenges confronted by India today? Is there is a credibility problem with the doctrine?

A nuclear doctrine typically emerges from perceptions of the geopolitical environment and envisaged threats, and, the composition of the military balance of power confronted by a state. India’s strategic planners have made certain conscious choices—based on both Cold War lessons from the US-Soviet nuclear dynamic, and domestic and regional conditions—that have defined and contextualised the role of nuclear weaponry. Because of a combination of three factors—a dominant strategic culture that is uncomfortable with active defence, a civil-military culture that fears a potential militarisation of the state’s national security apparatus, and a geopolitical environment where non-nuclear capabilities have been deemed adequate for core defense requirements (that is, safeguarding territorial integrity, and, state and national survival)—an assured retaliatory posture, and, its expression in the nuclear doctrine as an unqualified NFU has been deemed as a stable and appropriate response to the nuclearisation of the region.

WITH Home Minister Amit Shah sitting in front of him, corporate magnate Rahul Bajaj bravely stated, ‘You are doing good work, but if we want to openly criticize you, there is no confidence you will appreciate that.’ While Shah himself deflected the response, government ministers and those supportive of the government were quick to attack Bajaj for his question.

There is a perception that this sort of stifling and intimidation of voices critical of the government has become increasingly commonplace in India. When one juxtaposes this reticence to criticize the government with the extraordinary ability of the BJP machinery and Narendra Modi to present their narrative, a public space that is often lacking in diversity of opinion or debate becomes apparent. Furthermore, the ruling BJP’s hold over media and sources of political funding raise serious questions about whether political opposition is given enough opportunity to express itself.

Whether it be effectively locking down of Kashmir for months on end or promulgating a citizen registration system (the National Register of Citizens or NRC) and a naturalization process (the Citizen Amendment Bill or CAB) that would render many members of India’s Muslim community stateless, this government has shown a willingness to use the might of the state to deprive certain citizens of basic civil rights for its own political purposes.

But documented civil and human rights violations, as such, are insufficient to make claims about democracy. Civil and human rights standards have changed over the years, and many early democracies do not have great records on this count. And just because the BJP’s narrative is most prominent does not mean that democracy has been subverted. Its positions may just be overwhelmingly popular and its political skill as a party may just be greater.

How should we assess whether we are seeing an erosion of democratic practice – what political scientists call ‘democratic backsliding’ – in India? If one is to argue that India’s democracy is under threat, a minimal case needs to be established – one which shows the central government has infringed upon the core principles of democracy.

Let me put my argument up front. Every plausible definition of democracy implies a basic set of principles that structures political competition – what we may think of as rules of engagement in a democratic system. These rules are breached when the state’s institutions, which should be impartial across democratic political actors, can be used in service of the ruling party. The use of state institutions to weaken or stifle opposition is in direct contravention to these principles – constituting a fundamental threat to democracy. Under the guise of Hindu nationalism, India has seen a rapid increase in anti-democratic preferences among its population. This confluence of mass opinion and a governing party willing to use state institutions for its own ends has raised the specter of serious democratic backsliding in India.

The pervasive mistrust with which the Copenhagen Conference ended does not augur well for post-Copenhagen negotiations. This commentary explores existing fault lines and proposes creative ways of moving forward. The Copenhagen impasse, which is likely to continue, involved attempts by developed countries to overturn the template of historical responsibility and replace it with a reciprocity-based regime that was met with resistance from developing countries. Thus, realistically, Cancún can only serve as an opportunity to rebuild trust and seek areas of convergence, rather than being the occasion for a possible deal. Focusing attention on some limited areas of consensus may create a more congenial environment for future negotiations. Possible ways forward include promoting technological collaboration through a network of innovation centres, supporting the Least Developed Countries (LDCs), Small Island Developing States (SIDS) and Africa, encouraging extensive bilateral cooperation and cooperation under the auspices of the UN on climate change action and renewable energy, forging a commitment not to resort to trade protection, and making a firm commitment to the UN process.