Needed: Strong constitutional concept of social service for civil society and state managers

kanuniBy Upendra Baxi*

On 26 January 2017, we proudly celebrated the 68th Republic Day; two days later we assembled again to salute the long and difficult constitutional journey of equal rights for all Indians.

May I salute Shri Gagan Sethi, Ms. Nupur and all the colleagues working with, and at, the Centre for Social Justice and the Janvikas Trust for attempting the impossible?

That impossible comprises: training paralegals as an alternate legal profession who will dare speak to power, humanize the state by making it progressively ethical, and governance increasingly and insistently more just. All human rights and social movement actors and institutions seek to do this impossible. But what distinguishes the Social Justice Trust and the Centre is an attempt to create a cadre of people’s lawyers combatting the creation and maintenance of the disenfranchised, depressed, and disadvantaged citizens of a proud India.

The concept of paralegals has been somewhat discussed in law reform and legal education studies. In the good law schools, the main emphasis is on the ‘clinical’ component of legal education is rightly emphasized—that is, how to enhance the skills, crafts, and role of future lawyers in society. Aside from the fact that the number of good (socially progressive) law schools is very limited, this education is aimed primarily at would-be professionals. Similarly, law reform measures while aimed at reform of State-Law rationality or incremental amelioration of the plight of the law, structures the conceptions of paralegals as merely adjuncts, rather than full-blooded members of legal republic.

In contrast, the Centre, and the Trust, pursues a wider, and constitutionally mandated, conception social justice: paralegals as soldiers of constitutional justice that promises social inclusion of all.1 The nerve-centre of the Social Justice Centre and Trust lies in this constitutionally radical conception.

The idea that lawyers are shoulders for state sovereignty has always been accepted; the conception of education for law and lawyers as soldiers of constitutionally inclusive social justice is, in comparison, new. I believe that the Centre for Social Justice, and the Trust, remain among the very few social/human rights groups to continuously pioneer this conception.

The methods adopted for the pursuit of the objective are both sublime and mundane. The Trust has always recognized that mundane, the routine, does a lot of work of the world. What is more, the sublime often stands accomplished by the mundane. The Charter of Demands Derived at the National Convention of Paralegals (held on 7-8 April 2006 at Delhi) for example shows this fully well.2 On the face of it, the document is just a charter of demands on various agencies of the State but its implications are far-reaching, even revolutionary. In part, it demands that the state implement whatever stands recommended by its own agencies. This sort of reiteration is, of course, continuously needed. But the Charter also goes much beyond to secure a place for paralegals in the worlds of law.

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Gagan Sethi

For example, the concept of paralegals as friends of the police (demand 3) who will assist in the police work is a game changer.3 Police everywhere are un-befriended by civil society as well as the state. The just causes of the policing system are always lost when they are conceived of as agents of state repression, which they often are. How far, if at all, the association of paralegals will humanize police and security forces is a difficult question, given the fact that India lacks the rudiments of attempts where civil society will befriend these forces and turn them in the direction of observing human rights of the marginalized.

What is at issue is the maintenance of security that is compatible with core human rights and a growing conviction among security forces that there is no necessary antagonism between respecting human rights of all and providing security for all. This is what has been said repeatedly by commissions on police reform; the state and the federal commission have all urged a ‘people’s police’ or a ‘democratic police’ in attempt to bid adieu to the colonial police raj.4

The idea of recognizing the dignity and worth of paralegals as service providers emerges severally in the Charter of Demands. It also articulates, when closely read, the transformation of the notion of public service and of law as an instrumentality not merely of governance but as a set of ideals of social justice. What is needed is a strong constitutional conception of social service both for the civil society and state managers and apparatuses.

I feel that the images of paralegals and paraprofessionals should serve as a bridging concept, which ought to be further pursued in all its dynamic of inter-relationships. The conception of kanuni sahayak (in the Charter of Demands) more aptly became the image of a nyaya sahayak (in the presentations by Gagan Sethi and Nupur to the Gram Panchayat Committee of the Government of India, which I was privileged to Chair) is decisively important as a means of attaining social justice. Of course, despite support from all central and state ministries, the veto of the then Law Minister proved fatal for the proposed Bill. But the struggles continue for Gram Nyaya Panchayats that repose adjudicatory process and power in the people as an integral aspect of the Panchyati Raj constitutional amendments.

I can say a lot more about this magnificent enterprise of social justice but I must conclude with some observations concerning NGOs said to emerge as ‘new sovereigns’. This is often said in a tone derogatory of the NGOs. Undoubtedly, NGOs are broadly an aspect of political life, and as such a democratic state is occasionally justified in limiting the scope of their influence. International human rights NGOs, and much the same extends to domestic NGOs, exercise several kinds of politics among which may be identified at least:

‘…(1) information politics, or the ability to quickly and credibly generate politically usable information and move it to where it will have the most impact; (2) symbolic politics, or the ability to call upon symbols, actions, or stories that make sense of a situation for an audience that is frequently far away; (3) leverage politics, or the ability to call upon powerful actors to affect a situation where weaker members of an network are unlikely to have influence; and (4) accountability politics, or the effort to hold powerful actors to their previously stated policies or principles’.5

However, the problem lies with the concept of ‘sovereignty’ itself: it is a split conception, referring to sovereignty of a state in a community of states to be governed by standards of rule of law and the state as domestic entity relating to its own territory, resources, and the people in various groups and communities as they are subjected to patterns of political authority to rule.

One way –and that is the way of repression—is to say that multiple sovereigns may not exist, that sovereignty must be singular and special capacity to rule. This view becomes a democratic peril when said to be espoused by large majority of voters, as supermajorities in legislatures everywhere in the world tend to show. The other way is to affirm multiple sovereignties—the way of respecting the Other as having the power to rule and to be ruled (as Aristotle said of being a citizen a long time ago and as three recent Ms– Mohandas (Gandhi), Mandela, and Martin (Martin Luther King Jr.) recently reminded us. This view accentuates not just governance but just governance, not just rule-of- law but the rule of good law.6

Are these two views necessarily conflicted? My lifelong study of the constitutionally desired and ordained Indian social order suggests that the State exists because of the Constitution and not despite it. It proclaims an ethical state which is a concert of several sovereignties. It suggests a peaceful coexistence of state and popular sovereignty; in a deeper sense, it dispenses with the idea of sovereignty and instead speaks of supremacy within the ordained sphere.

The Constitution of India affirms multiple sovereignties which do not necessarily ambush, embattle or besiege the state as a centre of sovereign power; rather, it but allows assertion of presences, identities, voices, and participation by other centres of power in society. Those who are denied presence, voice, identities, and participation may clamour for these by exercising the rights they have and claiming (in Hannah Arendt’s immortal phrase) the ‘right to have rights’.7

We have been too often reminded that constitutional democratic governance, the experience of living together under a constitutional order, does not consist in repression considered necessary by masters but rather in popular celebration of these republican virtues. Multiple ‘sovereignties’ pose a democratic risk only when these collude to establish and maintain a well-ordered society elevating uniformity over diversity and with a single and singular centre of governance and authority. And avoidance of this risk— by finding an order within multitudes and multitudes within order- – should everywhere remain high on the agendum of governance and resistance.

Footnotes:

    1. Chatrapati Singh—whom we continue to miss as a legal philosopher and an activist—was the first introduce the phrase ‘soldiers of justice’ in the UGC Curricular Centre debates which eventually the Curricular Development Centre in Law happily adopted in its final report in early eighties.
    2. The Charter is worth quoting in full: ‘1. The legal aid centres for women run under the Ministry of Women and Child Development through the State Women and Child Development Commissionarates must appoint well trained accredited paralegals. 2.The recommendation of the National Commission for Women in its report on review of laws and procedures regarding appointment of paralegals as judges and counsellors in Family Courts must be implemented. 3.Paralegals must be appointed as police mitras in carrying out investigations, delivering summons and carrying out other work in partnership with police. 4.Paralegals working with nari adalats, nari suraksha samitis and other non-formal alternate dispute resolution mechanisms must be recognized as service providers under the Domestic Violence Act and as Police Mitras. 5.Counseling Centers must be set up within the police stations and should be run by a paralegal to counsel victims of their rights. 6.Every district prison must have a post of a kanuni sahayak to help under trials with their bail, parole, and other related issues. These could be trained life convicts. 7. A paralegal must be appointed for smooth and effective functioning of the gram sabhas under the 73rd amendment who should play the role of the secretary to the gram sabha. 8. A paralegal must be appointed in the Vigilance Committee constituted under the SC/ST [Prevention of Atrocity] Act. 9.Paralegals must be appointed under the Legal Services Authority at different levels to play various roles like conciliation, counselling, legal awareness etc. 10.The role of a paralegal must be recognized in the proposed gram nyayalaya as nyayadhikaris or liaison officers. 11. Paraleglas must be allowed to represent in land matters in the Revenue Court’.
    3. I tried to establish and maintain a Friends of the Police movement at Delhi Law faculty in the late seventies. Many colleagues scoffed at the idea based on what they thought were common intuitive ‘liberal’ convictions but a few welcomed it at least as social experiment.
    4. Upendra Baxi, The Crisis of the Indian Legal System (Delhi, Vikas, 1982)
    5. See Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics 9-10 (Cornell 1998). See also, Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, (ed.), The Power of Human Rights: International Norms and Domestic Change (Cambridge 1999); Daniel C Thomas, ‘International NGOs, State Sovereignty, and Democratic Values,” Chicago Journal of International Law, 2: 2,389-395 (2001).; Koen de Feyter, Human Right Social justice In the Age of The Markets, Chapters 6 and7 (London, Zed Books, 2005); but see also, John McSweeney, ‘The Absence of Class: Critical Development, NGOs and The Misuse Of Gramsci’s Concept of Counter-Hegemony’, Progress in Development Studies 14, 3, 275–285 (2014).
    6. John Finnis, Natural Law and Natural Rights, Oxford: Clarendon Press,1980).
    7. See Arendt, The Origins of Totalitarianism, at ix (New York, Harcourt Bruce, 1973.) See also, Peg Birmingham, Hannah Arendt, and Human Rights: The Predicament of Common Responsibility, (Indiana, Bloomington, Indiana University Press, 2006); Jeffry C. Isaac, ‘A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights,’ American Political Science Review, 90:1, 61-73 (1996). On a related but distinctive perspective see, Jacques Rancière, ‘Who is the Subject of Human Rights,’ South Atlantic Quarterly, 103: 2-3, .307 (a text that requires reiterated reading) and Slavoj Žižek, ‘Against Human Rights,’ New Left Review 34:115-131 (2005). Andrew Schaap recently argues that ‘Ranciere provides a more adequate basis for understanding the politics of human rights (such as that of the sans papiers) than is afforded by Arendt’s conception of the political’: see his ‘Enacting the Right to Have Rights: Jacques Ranciere’s Critique of Hannah Arendt’, European Journal of Political Theory, 10:1, 22–45 (2011)

————
baxi* Emeritus Professor of Law, University of Warwick, England, and University of Delhi. These are Prof Upendra Baxi’s “random remarks” on the occasion of the 30th anniversary of Janvikas, which were celebrated in Ahmedabad  on 28 January 2017

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