By Mr. Utkarsh Jain*
In Part I of this article, I initiated the reader into the (a) non-consultative and non-representative decisions of the Indian nation state with respect to permitting untold destruction of the ecology of India, at sites recognized by UNESCO no less, and (b) an individualistic and overtly litigious response by lawyers in response to these decisions, which in fact mirror the state, in terms of a lack of consultation with those communities most impacted by ecological destruction.
The connection between the principle of fraternity and community lawyering, within the paradigm of environmental scholarship is not straightforward, at least to my understanding. There are many questions to be asked to begin the inquiry into a connection. What has a vague principle mentioned in the preamble to the Constitution of India have to do with the practice of law? What is the role of a lawyer in a functioning democracy? Is the judiciary truly the only option at the hand of lawyers, in order to stop the rapid pace of destruction of the ecology? Is community lawyering an ethically questionable venture[i] at best and an undoing of the majesty of the profession at its worst? Is a litigious response nothing but deadwood, a colonial remnant that lawyers still wish to cling on to? Is there a thread of subordination and hierarchy that runs through Indian courtrooms and the site of a public consultation that takes place between the bureaucracy and the community? Why is it that lawyers are initiated into the profession through chambers of seniors and not on the field, where actual issues unfold?
It is quite impossible to answer all these questions in a manner that is both illustrative and theoretically expansive, within the length of this article. However, an insight into regnant lawyering, as shown by Professor Emeritus, UCLA, Gerald P. López, in his magnum opus, ‘Rebellious Lawyering’[ii] would be imminently helpful, in this context, before moving to Dewey and Ambedkar.
In the introduction to his book, Lopez, a Chicano[iii], who grew up in East Los Angeles, an area characterized then by its Chicano culture, talks about the entry of public interest lawyers who made an effort to help their community with cases of police brutality, which was then unfettered in L.A. He talks of a certain distance that many of the lawyers had with the cultural revolution of 60’s L.A and the communities and organizations working in neighborhoods where the police regularly ‘abducted’ young Chicanos from the streets and threw them into a long drawn process of incarceration, many times, due to no fault of their own, but because of racial profiling, eventually creating more delinquency and community decay than healing. For many lawyers then, though well intentioned and ‘hip’ enough to fit the bill, the natural response to problems of the community was resorting to litigation, having ‘meetings’ with legislators, ‘counseling’ ‘clients’ and generally deferring faith to the judicial administrative system. Moving upwards to Harvard Law only reinforced his belief that it is early on in students’ careers in law school, a strategy of ‘regnant lawyering’ is deeply instilled, with shocking resiliency, throughout careers spanning decades.
So, what is regnant lawyering? According to Lopez, regnant lawyering is characterized by ‘(a) formal representation of ‘others’, (b) largely litigious, (c) identifying lawyers as having the role of a preeminent problem solver in most situations they are trying to alter, (d) only loose connections with community organizations, which come into the picture at the time of formal representation, (e) a hesitation to inquire as to whether formal changes into the law penetrate into the lives of subordinated people, (f) a modest understanding at best, of the systemic and structural paradigms that lead to individual client grievances[iv]’, and perhaps most importantly:
‘Lawyers understand their profession as an honorable calling and see themselves as aesthetic if not political heroes, working largely alone to make statements through their (more than their clients) cases about society’s injustices.’[v]
It is not that lawyers do not genuinely intend to support communities, as even I do, but that many of us lawyers (including myself) have evolved under academic and professional circles that are so ‘formalistic’ and ‘individualistic’ so as to compromise in true dialogue with other professions and communities, beyond the language of the formal black letter of the law. And it is definitely that Prof. Lopez was the only one to have this realization, or that it is limited geographically or temporally to 60’s L.A[vi].
It is in response to this ‘separation’ of lawyers from the broader societal fabric and structural impediments to true emancipation of communities, new theories of lawyering emerged in the latter half of the previous century, at the initiative of various thinkers such as Lopez, cited in the parts to this article. Of course, to justify a new breed of lawyering would require immense work, which fortunately has been going on through practice as well as in theory, using various justifications. These justifications range from the purely philosophical post-modernist thought which aims to view the ‘individual self’ as rendered through structures which have a monopoly over knowledge in society[vii] more applied and ‘applicable’ justifications which hinge on an understanding of democracy, as a system wherein the role of the citizenry is not merely limited to voting ones rulers every few years, but being actively engaged in daily public life. As Prof. Piomelli puts it, lawyers that are advocating for a more engaged form of democracy:
‘To these lawyers and their partners, democracy means enhancing the power of low-income and working-class people and people of color to participate meaningfully in self-rule or self-government broadly construed. The aim is to enhance citizens’ participation in public deliberation and public action-not simply voters’ selection of representatives to engage on their behalf in that deliberation and action’ [viii]
This new wave of lawyers ask: What is the role of a lawyer in a deliberative and participative democracy? How can a lawyer meaningfully partake in on going movements of social change? What is the role of participation in a democracy and why is it so crucial to the functioning of a healthy one? Is there an inherent need to dignify participative modes of democratic living[ix]? It is surprising in the least, to me, that the thoughts of Lopez, Bellow and many others find such vibrant reverberance in the work of John Dewey and B.R Ambedkar, as is briefly laid out below
The Indian Constitution is the Fundamental Justification for Community Lawyering: The Forgotten Legacy of Babasaheb Ambedkar, John Dewey and the Concept of ‘Fraternity’ Enshrined in the Constitution
Perhaps the tallest thinker of modern democratic theory was American pragmatist John Dewey, professor at Columbia University, and mentor of B.R Ambedkar (hereinafter ‘Babasaheb’ as he is affectionately called by millions of Indians), who had a major role in the framing of the Indian Constitution, also known as the ‘Father of the Indian Constitution’. In the final section of his book ‘Annihilation of Caste’, Babasaheb quotes Dewey to establish that the ‘Hindus’ ‘would have to let go of their heritage if they were to suitably govern themselves.[x] It was Dewey’s thought on ‘fraternity’ that established the basis of Ambedkarite thought and indeed the cornerstone of the Indian constitution.
Dewey was a hard critic of a representative, protective form of democracy[xi], where the citizenry is reduced to merely tokenistic participation in public life and decision making, as is the case with most democracies around the world, including in India. For him, comparing democracy to a system of government would be akin to describing a home as merely an arrangement of brick and mortar[xii]. Democracy, to him, was a way of life, where citizens are united by the concerns that they face. Even though that unity might not be immediately apparent, the more citizens engage with one another, based on their inherent intelligence, irrespective of formal or informal education, the more this shared space of concern expands[xiii]. The progressive expansion of this shared space, leads necessarily to collective action in society, where everyone is aware and receptive to the thoughts of the others, and engage in constant, day to day communication[xiv]. This is to say that for Dewey, a collective vision of citizenry within a democracy, or a community centric approach was a pre-requisite for the achievement of a healthy democracy, as a ‘way of life’. In fact, in Deweyan thought, the only way for individual self-realization is through a healthy and engaged community life and that there is no creation of the individual without the creation of the community first. In the ideal Deweyan democracy, no individual is left behind, and everyone has the inherent capacity and skill to contribute positively towards social progress. In many ways, Dewey considered such an ‘associated’ way of life as an antidote to subordination and protectionism. Another phrase to put Deweyan thought with respect to associated living would be ‘social endosmosis’[xv] or the constant exchange, reception, testing and evolving of ideas.
These thoughts of Dewey also echoed in his understanding of the concept of ‘fraternity’, that first emerged after the French revolution, in response to increasing aristocracy and fiefdoms[xvi] in erstwhile authoritarian France. Though fraternity is also understood widely in terms of the gendered term ‘brotherhood’, its translation to Hindi ‘bandhuta’ is bereft on any gendering. Even the form in which it is understood in the English language implied a lack of hierarchy amongst citizens, a willingness to stand together with one another as a form of solidarity, not merely working together but have the will[xvii] to work together, not merely tolerating, but cooperating with one another, not looking at knowledge as an individualistic pursuit, but imagining the community as a shared repository[xviii] of knowledge, not choosing to be collaborative, but necessarily being born[xix] into a collaborative relationship with others. Dewey’s idea of fraternity was in direct opposition to the coalescing of a group of people into an elite, individualistic class of their own, those who treated intelligence as a strictly ‘personal’ commodity. In Dewey’s words, the:
‘Notion that intelligence is a personal endowment or personal attainment,… the great conceit of the intellectual class, as that of the commercial class is that wealth is something which they personally have wrought and possess.’[xx]
To a lawyer who claims to secure a judicial order on behalf of the community, even free of cost, or as an act of benevolence, but without ever engaging meaningfully with those impacted the most, Dewey would come down harshly and call it not an act of goodwill but merely a remnant of aristocratic thought. To the lawyer who argues in a petition that an ‘expert’ such as one in the National Board for Wildlife, failed to duly consider the impacts of a railway line on the pristine Western Ghats, Dewey would reject any deference to experts in the first place, unless there is meaningful engagement of the experts with community members:
‘the practical consequence of giving the few wise and good power is that they cease to remain wise and good. They become ignorant of the needs and requirements of the many; they leave the many outside the pale with no real share in the commonwealth.’[xxi]
Babasaheb and His View:
Babasaheb is regarded as the father of the Indian Constitution and the one responsible for introducing the idea of ‘fraternity’ into the preamble to the Indian constitution[xxii], which has also been held to be indicative of the basic structure of the constitution[xxiii]. However, he is also recognized by his glaring and perhaps intended exclusion of any academic discourse in India for most of independent Indian history. As elucidated by Prof. UpendraBaxi:
‘I should begin this oration by a testimonial to a lack, an absence. The Indian social science landscape has disarticulated BabasahebAmbedkar by studious theoretical silence. Even on the eve of his birth centenary, we do not have a complete corpus of his writings. Comparisons are odious, but we have organized corpus of texts of Mahatma, Nehru, Rajendra Prasad, and Patel (to mention a few examples). But Ambedkar’s corpus has just begun to emerge and that too, on the initiative of the Government of Maharashtra. If the market for knowledge is also operated on the laws of supply and demand, we have to ruefully conclude that Ambedkar’s construction of the Hindu society, nationalist movement, and resurgent postcolonial India, are cognitive commodities for which there is no organized demand either from epistemic entrepreneurs or by cognitive consumers in India.’[xxiv]
A large portion of Babasaheb’s thought, on fraternity, was directly influenced by Dewey, who was his professor at Columbia University, while he was pursuing his studies in economics, sociology and anthropology in the early 1900s[xxv]. In the first half of the 20th century, when the Indian independence movement was at its peak, it was Babasaheb who steered a truly ‘anti-heirarchal’ and ‘anti-brahminical/hindu’ movement, and historically led a gathering of dalitpeople to the Mahadsatyagraha[xxvi], where he burned the ‘Manusmriti’ widely regarded as the holiest book to the ‘brahmin’ caste within the Hindu people, referring to it as dead wood from the past, used in the present to create subordination and inequality, by a the Brahmins.
Although the writings of Babasaheb were specifically targeted at eliminating the draconian caste based division in Indian society, a lot of his work is applicable to how any individual shall view their role in a healthy democracy. The concepts of social endosmosis and associated living were central to Babasaheb’s dream for Indian democracy, as was also reflected in Deweyan writings. For Babasaheb, as long as there is a privileged class in society, which claims exclusive ownership over knowledge and separates itself from community life, there can be no free flow and exchange of ideas in society, and therefore, no achievement of true democracy.
His thoughts on the law and education[xxvii] were of similar ilk. To him, any law passed, which guaranteed civil liberties to speech, gather and express, were merely hollow, if in real life, subordinated people are not allowed to participate in the decision making of their own fate and where fear and hatred dominate the societal landscape.[xxviii]
The various thoughts of Dewey and Babasaheb briefly sketched out above, form the core essence of the principle of fraternity as it finds itself in the preamble to the Indian constitution. And yet, hardly has the judiciary ever used this principle in its decisions, mentioning the same in the ‘obiter’ and never the ‘ration decidendi’[xxix]. Perhaps never has this principle been used to justify the right of communities impacted by large scale, state sponsored destruction of the ecology and livelihoods dependent thereon, by the judiciary. It was in the NandiniSundar case[xxx] that the judiciary dealt with the principle with the greatest precision, rendering a concrete form of what many, including H.M Seervai[xxxi], have called a vague principle having no direct bearing on the constitution. According to the court, the principle of fraternity is a check on unfettered use of power by the state inconsistent with the idea of a welfare state, mandated constitutionally to ensure individual dignity. Any such use of power would violate the principle of fraternity and render the fundamental rights to equality and life otiose. The Court went in to state that as long as the state continue to indulge in a predatory form of capitalism that rouses the disaffection of the citizens, the principle of fraternity can never be realized[xxxii].
Although not much has been written[xxxiii] on the connection between Deweyan pragmatism, Babasaheb’s thoughts on fraternity and environmentalism, these thoughts have a direct implication on how a lawyer aiming to contribute positively towards social change and annihilating subordination may frame their thoughts while engaging with destruction of the ecology using unfettered and opaque state power. To build a stronger theoretical foundation between the various paradigms of thought mentioned in this article, which talk about similar experiences of subordination across starkly different contexts, geographies and timelines, would be an extremely fruitful undertaking for anyone. Environmental lawyering is about social subordination, as is clear from most cases which are brought before the courts, where entire communities of people have been rendered voiceless in the process leading up to big ticket environmental clearances, for a capitalist exploitative and perhaps malignant form of the Indian nation state, a far cry from what Babasaheb envisioned. Prof. Jayanth Krishnan, on the lines of what others such as Lopez have written on cause lawyering, has observed that though cause lawyering has made a foray into India, its has largely been practiced by a select few individual lawyers coming from an elitist demographic[xxxiv], and who, though not in those precise words, still exercise a form of regnant lawyering. As long as lawyers refuse to free themselves from the chains of the ‘majesty of the profession’ and actually begin engaging with those who, irrespective of formal education, possess the greatest extent of knowledge of the process by which the nation state has rendered them voiceless, there cannot be an alignment between lawyering and Babasaheb’s vision for Indian democracy. In the final analysis, Babasaheb would have rained down on any lawyer and judge that refuses to reflect and unshackle themselves from the vice of hierarchal, exclusive and egotistic versions of lawyering and judging, mere dead wood from the colonial past having absolutely no place in the modern world.
About the Author
*Mr. Utkarsh Jain is an environmental lawyer from Delhi. He previously worked with Legal Initiative for Forest and Environment as an Associate Litigator. He recently graduated with a Master of Laws from Cornell Law School. His research agenda lies at the interface of environmental education, adult learning and access to justice. He completed his undergraduate education in law from Jindal Law School in 2016.
[i] Susan D. Carle & Scott L. Cummings, A Reflection on the Ethics of Movement Lawyering, 31 Geo. J. Legal Ethics 447 (2018).
[ii]SeeGerald P. Lopez, Rebellious Lawyering: One Chicano’s Vision Of Progressive Law Practice (1992).
[iii] A chosen identity for people of Mexican descent, born in the United States of America.
[iv]Supra at endnote ii. at 24.
[vi]See for eg, Lucie White. See Lucie E. White, Collaborative Lawyering in the Field? On Mapping Paths from Rhetoric to Practice, I CLINICAL L. REV. 157 (1994), Luke W. Cole & Sheila R. Foster, From The Ground Up: Environmental Racism And The Rise Of The Environmental Justice Movement (2001), Supriya Routh, Experimental Learning through Community Lawyering: A Proposal for Indian Legal Education. See generally, endnotes xxvi to xxxiii of Part i of this article.
[vii] See Peter C. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Analysis, 65 S. CAL L. REV. 2505, 2508-09 (1992); Scott L. Cummings, Community Economic Development as Progressive Politics: Toward a Grassroots Movement for Economic Justice, 54 STAN. L. REV. 399, 429-37 (2001).
[viii]AscanioPiomelli, The Challenge of Democratic Lawyering, 77 Fordham L. Rev. 1383 (2009).
[ix] Angela M. Gius, Dignifying Participation, 42 N.Y.U. Rev. L. & Soc. Change 45 (2018).
[xi] For a short introduction to the protective form of democracy, see AscanioPiomelli, The Challenge of Democratic Lawyering, 77 Fordham L. Rev. 1383 (2009) at 1388.
[xii] See John Dewey, The Ethics of Democracy (1888), in 1 EARLY WORKS OF JOHN DEWEY 228, reprinted in JOHN DEWEY, THE POLITICAL WRITINGS 59 (Debra Morris & Ian Shapiro eds., 1993), in AscanioPiomelli, The Democratic Roots of Collaborative Lawyering, 12 Clinical L. Rev. 541 (2006) at 567.
[xiii]John Dewey, Democracy And Education: An Introduction To The Philosophy Of Education 87 (The Free Press 1997) (1916).
[xiv] John Dewey, Creative Democracy – The Task Before Us, in John Dewey And The Promise Of America (1939), reprinted in DEWEY, POLITICAL WRITINGS.
[xv]Supra at endnote xiii.
[xvi] For a brief introduction to the origins of ‘fraternity’ in the French revolution, refer to Smaran Shetty &TanayaSanyal, Fraternity and the Constitution: A Promising Beginning in NandiniSundar v. State of Chattisgarh, 4 NUJS L. Rev. 439 (2011) at 441 – 446.
[xvii] Dewey, Basic Values of Democracy.
[xviii] See AscanioPiomelli, The Democratic Roots of Collaborative Lawyering, 12 Clinical L. Rev. 541 (2006) at 575.
[xix] Peter Sack, Legal Technology And Quest For Fraternity : Reflections on Preamble of indian Constitution, Journal of the Indian Law Institute, Vol. 32, No. 3 (July-September 1990), pp. 294-308.
[xx]Dewey, Public And Its Problems.
[xxi]Dewey, Ethics Of Democracy.
[xxii]B.R.Ambedkar’s Letter to the Draft Constitution, February 21, 1948 as cited in K.C.Markandan, The Preamble, Key To The Mind Of The Makers Of The Indian Constitution, 10 (1984), in Smaran Shetty &TanayaSanyal, Fraternity and the Constitution: A Promising Beginning in NandiniSundar v. State of Chattisgarh, 4 NUJS L. Rev. 439 (2011) at 448.
[xxiii]S.R. Bormmaiv. Union of India, (1994) 3 SCC 1.
[xxiv]UpendraBaxi, “Emancipation as Justice: Legacy and Vision of DrAmbedkar,” Periphery to Centre Stage: Ambedkar, Ambedkarism and Dalit Future, ed. K. C. Yadav (New Manohar, 2000.
[xxv] Refer to blog titled ‘Dr. Ambedkar and Columbia: A legacy to celebrate’, available at https://blogs.cul.columbia.edu/global-studies/2019/04/15/speaking-truth-to-power-dr-ambedkar-and-columbia-university/.
[xxvi]Swapna H. Samel, MahadChawadar Tank Satyagraha Of 1927: Beginning Of Dalit Liberation Under B.R. Ambedkar. Proceedings of the Indian History Congress, 60, 722-728.
[xxvii]Supra at endnote x. at p 362.
[xxviii]Ambedkar, “Submission to the Indian Statutory Commission” , in Dr. BabasahebAmbedkar’s Writings and Speeches, compiled by Vasant Moon, 2:445 – 46.
[xxix]Supra at endnote xvi at 458.
[xxx]NandiniSundar v. State of Chhattisgarh, (2011) 7 SCC 547.
[xxxi]H.M. Seervai, Constitutional Law Of India Volume I 281 – 282 (1996).
[xxxii]Supra at endnote xvi at 459.
[xxxiii]See for instance, Mukul Sharma, Casteand Nature: Dalits and Indian Environmental Politics (Oxford Scholarship Online, 2018),DOI:10.1093/oso/9780199477562.001.0001; Green Democracy: Relevance Of Ambedkar’s Ideas For Indian Environmentalism at http://www.ticijournals.org/green-democracy-relevance-of-ambedkars-ideas-for-indian-environmentalism/., V.M Ravi Kumar, History of Indian Environmental Movement: A Study of Dr B.R. Ambedkar from the Perspective of Access to Water, Contemporary Voice of Dalit, 8(2), 239–245.
[xxxiv]See Jayanth K. Krishnan, Transgressive Cause Lawyering in the Developing World: The Case of India, in The Worlds Cause Lawyers Make: Structure And Agency In Legal Practice 349 (Austin Sarat& Stuart Scheingold eds., 2005).