From Activist to Alternative Lawyering

 

FROM ACTIVIST TO ALTERNATIVE LAWYERING IN INDIA

 

 

 

 

 

 

Tarunabh Khaitan  

 

 

 

 

National Law School of India University

Bangalore
TABLE OF CONTENTS

 

 

1. What is activist lawyering?                                                                            3

 

2. History of activist lawyering in India                                                               7

 

3. Practice of activist lawyering in India – case studies                                       10

 

4. Dilemmas of an alternative lawyer: to use, abuse or not use the law                19

 

5. Radicalizing the practice: court as theatre                                                                   24

 

6. Bibliography                                                                                                 31

1. What is activist lawyering?

 

Even beginning to map the content of what are variously referred to as alternative, activist, legal-aid, human rights, community, pro-bono, radical, public-interest, cause or rebellious lawyering is a daunting task. There is no agreement on what each of them means, and more importantly what it does not mean. The problem becomes even more acute when one considers the lawyers who profess these kinds of lawyering – some might be doing pro bono work for a cause, while others may be providing free legal services to a particular constituency or community. It is difficult to neatly classify them or their work in any single category.

 

To borrow a very rough definition, what may seem to bind most of the above is that they all represent a moral activism, an alternative to the value-neutral, “hired-gun” imagery of the legal profession.[1] With this basic premise at least ostensibly characterizing all of the above, the term ‘activist lawyering’[2] has been used in this paper to include all kinds of self-consciously political interventions using or within the law and legal processes; and to distinguish it from value-neutral mainstream lawyering.

 

Activist lawyers share with their clients an interest in the ends they seek to achieve; an end which, at least in their opinion, furthers a vision of a ‘good society’. These lawyers usually see their work as impacting more than the individual client – they see it as promoting a ‘public’ good or interest.

 

And still, there is enormous diversity in the modes being employed by activist lawyers and any generalization has to have a number of footnotes. Traditional pro-bono or legal-aid lawyers only aim at providing legal representation to those who cannot afford it. It is the status of the client that is material, not the nature of the problem or the relief sought. Usually, they do not aim at grand changes in society, and are usually value-neutral as far as the goals of litigation are concerned, except insofar as making legal services to some populations accessible is concerned.[3] They therefore do not quite neatly fit into the above categorization.

 

Again, the public interest lawyers in India might even represent an absentee client. So, this can be characterized as a mode of cause lawyering where even the mediation of the client is not required. And yet, marking the boundary, for example, between cause lawyering and legal-aid lawyering is difficult. If redressing unmet legal needs does not in itself qualify as lawyering for a cause, what are we to make of postmodern approaches that identify the personal as political and that thus would see the empowerment of individual clients as a crucial form of struggle against the status quo? Again, how is cause lawyering different from say human rights lawyering, feminist lawyering, radical lawyering etc.?[4]

 

Drawing the boundary between public interest or cause lawyering and mainstream lawyering is again extremely difficult. Usually, cause lawyers are also wedded to the system of rule of law, individual human rights, technical and strategic expertise etc. which are not very different from the beliefs and mode of functioning of mainstream lawyers.[5] What further complicates the problem is that a number of lawyers providing pro bono legal services also have very mainstream practices to subsidize their voluntary work. While engaging in both kinds of work, maintaining a different style of approaching problems might prove to be extremely difficult. Added to this, the very extensive use of the PIL process, even for private and business interests, has made it an occupation of very mainstream lawyers as well.

 

At the end of the spectrum stand the alternative, radical and/or community lawyers[6] (and again, there are points of differences and similarities among these categories). They seek to decommodify, politicize and socialize legal practice. Though they might use established rights sometimes, usually this use is only strategic and not because of a commitment to the idea of rights. Their primary loyalty is to the vision of a good society and to political allies who share this vision. They also try to incorporate into their practice these broader social value, trying to decommodify their practice, close the gap between the law and lawyers on the one hand and clients, staff, communities and organisations on the other.[7] This includes the use of no-more-complicated-than-necessary language and ceremonies in legal culture.[8]

 

Community lawyering involves engaging with the local community, sharing experiences and developing know-how, anticipating problems, collaboration with other professional and lay allies and building coalitions. It includes educating the lay people about law and professional lawyering and learning the traditions and experiences of life at the margins. It necessarily means that the work of the lawyer then needs to be grounded in the community it seeks to work with. The importance of story telling and problem sharing helps build solidarity as well as develop strategies.[9]

 

Therefore, it becomes crucial to acknowledge that all these terms, including ‘activist’ lawyering are contested concepts, their contents inexact and unascertained. It is easier to see them as a continuum rather than as binaries, with overlapping and even conflicting meanings. The nature and content of activist lawyering is also extremely context-specific, varying greatly from liberal to authoritarian regimes, from first world to third world democracies, from common law to civil law systems, and within all these cultural contexts; and therefore broad generalizations may be unwarranted.[10]. Even within India, as this paper seeks to understand, lawyers are using a complex combination of these and more styles, so much so that it is impossible to characterize any of them under one specific head.

 

This diversity in practice can be attributed largely to the near absence of any theorized programmatic ideology which can guide activist lawyers. This lack of theorization has therefore enabled a lot of experimentation and innovation.

 

This paper is largely descriptive inasmuch as it attempts to map the practice of activist lawyering in the Indian context. First, a brief history of activist lawyering traditions in independent India is attempted, after which the paper looks at the work of some lawyers and organizations. The methodology includes interviews with activist lawyers, observations of the researcher while interning with some of them, as well as their speeches at the conference on ‘Alternative Lawyering’ organized by the ALF in Bangalore. Towards the end, this paper also analyzes some of the concerns raised over political lawyering and the potential of the law itself to deliver. Though these academic debates are largely situated in the West, particularly those of the Critical Legal Studies movement, some of the concerns raised are valid even in the Indian context.

 

2. History of activist lawyering in India

 

History of socio-political movements in India, at least in part, is also a history of lawyers and lawyering. Right from the struggle for independence which was led by lawyers, lawyers have always played a crucial role in shaping our polity. In independent India,

 

The history of activist lawyering in India is rooted in the very fundamental changes that post-independence Indian polity underwent in the 1970s. By ‘70s, society was in turmoil, the promises of independence had been shattered. The JP movement was causing socio-political upheavals. The social question that was postponed at the time of independence burst on the national scene. The intervention by the Emergency during this period of turmoil only catalyzed the democratic consciousness that was beginning to take shape. The Emergency provided the ideological stimulus to engage more seriously with the State and law to keep them in check, while the arrest of a number of left-wing activists during the Emergency provided with the immediate reason to engage with legal processes.[11]

 

So, the civil liberties movement in India was a product of this democratic consciousness that burst onto the national scene after the Emergency. In the late ‘70s, a number of small but committed civil liberties groups heavily influenced by the left sprang up. These included the Andhra Pradesh Civil Liberties Committee (APCLC), Committee for the Protection of Democratic Rights (CPDR) etc. Their immediate concern at this time was to secure the release of political prisoners from the jails, who mostly were comrades of the people who founded these organizations. However, their wider concern was with the exploited sections of people rather than with individual civil liberties. There was a romanticism with illegality and the ‘real struggle’ was carried out by the armed revolutionaries in the jungles.[12] It seems therefore that for these organizations, use of legal processes was probably limited to securing the release of their comrades from jails. Law did not find a place in the idea of securing social justice, and was largely identified only as the oppressor.

 

In contrast to this trend was the emergence of the Peoples Union of Civil Liberties (PUCL), focusing on protection of individual civil liberties. The PUCL has been more comfortable with the legal processes and has made extensive use of the PIL system as well as intervened in individual cases to secure rights.[13]

 

For the first ten years, the left-inspired civil liberties groups broadly raised four issues[14]:

-         Rights of prisoners, including undertrials, illegal detentions and prison conditions.

-         Violence by State through the police, including torture, extra-judicial killings etc.

-         Draconian security laws, like TADA, preventive detention laws etc.

-         State oppression of various unorganized sections of society, like bonded labourers, tribals, slum dwellers, landless labourers and religious minorities.

 

The methodology used was largely investigative reporting and documentation, locating individual incidents in larger socio-political contexts. Law as a possible remedy was hardly explored by these civil liberties organizations, with the exception of the PUCL.

 

However, left-liberal individuals in the legal profession kept the parallel redressal mechanism alive by the extensive use of the PILs for the same issues that were being highlighted by these organizations. The dialogue between the organizations highlighting violations through political activism and socio-legal research and individual lawyers filing petitions in courts to secure rights remained minimal. But the invention of Public Interest Litigation around this time strengthened the belief that law can be a potent tool for achieving social justice. All one needed to do, after all, was file a petition highlighting the cases of injustices, and an activist Supreme Court took it upon itself to redress the harm by whatever means available. Such were the hopes with Public Interest Litigation that Professor Baxi called it Social Action Litigation, designed to be used only as an instrument of social change genuinely on behalf of the victimized and oppressed classes.[15] Names like Hussainara Khatoon are now well entrenched in PIL jurisprudence as legal precedents. Judicially ordered compensation to victims of statal violence came to be entrenched after a number of judgments. Even apart from the PIL process, a number of left leaning advocates started practicing labour law with a view to secure labour rights. For a long time, labour law practice alone came to define human rights litigation, besides protecting civil liberties from state violation. Though the initial concerns were civil liberties, by the ‘80s, socio-economic rights began asserting themselves. The polity was beginning to polarize sharply on the caste question, while the women’s movement had begun to take form.

 

The Emergency also brought with it a collective consciousness on the question of gender, giving birth to the Indian women’s movement. The Mathura Rape Case catalyzed the movement for reform of rape laws.[16] Even the legal academia was mobilized against this judgment, starting a movement which finally changed the rape laws. The women’s movement however did not really resort to filing PILs on a large-scale. Instead, it chose to lobby for law reform with the State through the ‘80s and ‘90s. .

 

This increased national legal activism coincided with an increasing global concern and engagement with human rights. This is not to say that the national movement was linked to the global one, or even that it drew major inspiration or strength from the latter. Even as late as in 1991, Nandita Haksar is lamenting the absolutely insular civil liberties movement in India which is therefore deprived of the global source of strength and inspiration.[17] The process of linking up with the global discourses really began with economic globalization and liberalization, and is still on. It has also enabled activist lawyers to lobby at the international level. The issue of arrest of MSM outreach volunteers in Lucknow raised by Aditya Bandhopadhyaya before the UN Human Rights Committee is a case in point.  

 

3. Practice of activist lawyering in India – case studies

 

3.1 Gender based lawyering: Flavia Agnes[18]

 

Majlis is a culturo-legal initiative for women’s rights in Mumbai. Headed by Flavia Agnes on the legal side, it basically deals with matrimonial cases on behalf of women in the Family Court in Bombay. This focus on an extremely defined area helps increase efficiency.

 

Flavia sees law as a very important tool for social change. Though her idea of law itself has not changed over the years as a lawyer, she insists that now she realizes that making an effective intervention is a very complex issue. It necessarily involves a campaign and changing attitudes, merely changing the written word may not make any difference. Much of this cautionary approach is owed probably to her experience with law reform as yielding few fruits at the grassroots.

 

Probably the biggest contribution of Majlis has been that through sustained engagement over the years with the Family Courts, it has been able to bring about a perceptible change in the gender sensitivity of the judges at least in Bombay. The Bombay Family Court is credited to come up with very progressive judgments, a lot of which is owed to the work done by Majlis. I personally saw the Family Courts in Maharashtra closely when while interning with Majlis in 2002, I interviewed judges of the Family Courts of Bombay, Pune and Nagpur on issues of gender sensitivity. The interviews were part of a research being conducted by Majlis and the purpose was largely to inquire into the personal moralities of judges and evaluate its impact on their gender sensitivity. While the research did explode the myth of judicial objectivity with extremely diverse responses, what stood out clearly was that the judges in the Bombay Court and those in Pune and Nagpur who have served in Bombay in the past were much more exposed to and believed in progressive ideas in comparison to the other judges.  

 

Flavia insists that cause lawyers are not very different from other mainstream lawyers in terms of strategizing and efficacy – nor is any such difference desirable. In fact, one major problem with cause lawyers is inefficiency, including faulty demands and ineffective follow ups. She cites the example of in camera trial as a demand raised and achieved by feminist lawyers. In her opinion, it leads to the opposite effect in terms of intimidation of the woman, resulting in compromises. Trial in the open court has a historical context and was born out of the need for accountability and protection of human rights, which was ignored by this demand. Dignity of the woman can be maintained in the open court as well. Therefore, before a demand is made, understanding the legal system is crucial.

 

She agrees that filing a case cannot be the solution to every problem. She carefully strategizes on a case, and litigation is only one of the options. Her success rate in litigation is about 95%, most of which is owed to pre-litigation planning and filing the case only when fully prepared.

 

As far as lawyer client relationship is concerned, she considers her own personal experience as a battered wife seeking divorce through the court process before becoming a lawyer as crucial in empathizing with and understanding the client. Also her personal experience builds up the trust of the client in the lawyer, and she knows that a solution is possible.

 

The client handles the case herself as far as is possible. Flavia considers the litigation process itself, irrespective of the outcome of the case, an educational enterprise. This is probably the first time in a number of cases where the woman is coming into contact with the formal public sphere involving the State and the law. Before this, she is likely to have been confined largely to the four walls of the home, because it is usually men who interact with institutions like the bank, post-office, police-station, court-room etc. So, the litigation process itself, with the knowledge that she is handling the procedure herself in large measures, is a confidence-booster. So, the client is told that it is her case, which she has to fight herself. The lawyers are merely facilitators who will help her in her struggle. This attempt to bring the law closer to the people results in the client being asked to draft the first draft of the petition herself, and be closely associated in the finalization of the draft; pursuing the technicalities of the court process herself, e.g. filing of the petition, getting dates etc.; and whatever else is possible given a particular client’s abilities. The language of the petition is kept as simple as possible, and the informality attached to the Family Court allows certain latitude in this regard, which may not be entirely possible in a traditional court. Flavia believes that law and rights should be taught compulsorily in schools. Law as a profession is too mystified and awesome for a lay person – it needs to be taken closer to the people. Majlis organizes yearly clients’ meet for the purposes of sharing experiences, networking, exposing the clients to broader issues beyond their own personal case etc.

 

Flavia considers herself a feminist as well, apart from being a lawyer. Therefore she goes beyond legal remedies. She tries to develop a personal relationship with the client, helping the client put her life together, looking after her health, building a life independent of her husband, etc. This kind of counseling comes only because of her feminism and not because of her lawyering.

 

Given the intricacies of matrimonial disputes, sometimes in the middle of the case itself, the client wants to go back to her husband, and in even does so in a number of cases. She deals with it by respecting the agency of the client, and hopes that the process has empowered her enough to be able to go back with a better negotiating power. Hence, even if the legal remedy does not work out, the process itself is empowering. Even after the client has gone back to her husband, she expects her to keep in touch with Majlis, though this rarely happens. Even though she has her own ideological viewpoint, it is acknowledged that it is the client’s case and not that of the cause.

 

Flavia sees herself as an alternative lawyer only to the extent that she takes up only women’s cases. But she insists that the practice is as mainstream as it can get. The court system is very mainstream itself, and to get anything out of it, one cannot but be mainstream. She agrees, however, that litigation is not the only solution. What is important is to create an ambience of rights. Therefore Majlis engages in research, writing and publications, law reform, training of judges etc.

 

3.2 Community lawyering for people living with HIV/AIDS: Anand Grover[19]

 

Anand Grover heads the Mumbai unit of Lawyers’ Collective. It provides pro bono legal services to people living with HIV/AIDS. Unlike Flavia, who takes up only women’s cases, he depends on very mainstream litigation for his livelihood. HIV/AIDS lawyering is done along with it.

 

Grover sees cause lawyering as the only mode of practicing activist lawyering. He says that its characteristic features are firstly, that you decide to take up the case not only because of its individual dimension but because it has a wider impact on legal processes and society. Secondly, it is usually done pro bono. Because what drives the practice is ideology and not fees, the case is taken more seriously. Something personal is at stake for the lawyer as well, not just the client.

 

He sees himself more as a community lawyer (for the HIV/AIDS community) rather than a PIL lawyer. He prefers to take individual problems of positive people to court instead of filing a PIL. Grover is very critical of PIL lawyering in India and sees it as being misused by a number of lawyers for personal enhancement, and has become entirely mainstream. Also, Grover says that there is little use of merely declaratory judgments obtained through PILs since enforceability is a major issue.

 

However, the Lawyers’ Collective does resort to PILs sometimes. They are usually calculated, always in the High Court, asking for small achievable reliefs. Instead of going for the kill in the first instant, PIL is used to augment the discourse built up by the individual clients’ cases to yield cumulatively big results.

 

Grover explains that having established a reputation as a bona fide group doing pro bono work, the response from judges is usually positive. The sensitization of individual judges notwithstanding, Grover concedes it cannot be said that pro bono work influences the character of the judiciary in any substantial manner. And yet, the power of precedents from a High Court is useful in changing the attitudes of lower courts and labour courts, adds Vivek Divan.  

 

Given the very sensitive nature of HIV/AIDS, the lawyer-client relationship that comes to develop is extremely personal and not clinical. Divan adds that impending death becomes a reality and is the most difficult to deal with. The Lawyers’ Collective refers the clients to counselors, and its staff sometimes resorts to counseling itself since the client finds in them people sensitive to their problems. Therefore, the case becomes much more than a legal case, and human emotions influence the lawyer-client relationship greatly. Because the services provided are more than legal, the relationship usually continues even after the case is over. This is also because the office becomes the point to meet other people going through the same problems. The clients meet regularly to exchange HIV/AIDS information, build solidarity and seek a community. These regular meetings have become a victim support group.

 

The legal strategies used are varied and go beyond litigation. Lawyers’ Collective conducts advocacy and sensitization programmes for stakeholders like hospitals, judges, lawyers, police, NGOs, health care workers etc. It also becomes an information cell for its clients who are informed about these sensitized service providers for HIV positive people. It also brings out regular publications to disseminate legal and other information affecting the HIV/AIDS community. Lawyers’ Collective is also planning to set up a hotline for positive people.

 

Like Flavia, therefore, the constituency or community it serves is well-defined. However, given the special needs associated with HIV/AIDS and their non-availability in society generally, the LC ends up providing non-legal services to its clients as well. And yet, these services remain on the periphery of the main legal case and come as a bonus rather than an integrated community-support initiative.

 

3.3 Lawyering for queer people – Moving beyond the court-room: Arvind Narrain[20]

 

Arvind visualizes a number of sites apart from the court-room which can become important for a queer-rights lawyer. Firstly, as far as the court-room based lawyering is concerned, in the special context of queer people, very few people are willing to come to courts. People who are forced to go the courts are hijra and kothi sex-workers, who go usually as accused, on the wrong side of the law. So, court-room based lawyering for this community can only be to defend them. The judicial response is very much rooted in social morality. So, Arvind sees an alternative human rights discourse reaching society, and therefore the judges, as also important for a favourable judicial response. Judges are, after all, a part of the society itself. He cites the case of Lucknow arrests where the response of judges for the bail petition was extremely moralistic.

 

As far as law reform is concerned, particularly the repeal of s. 377 of the IPC, Arvind is extremely critical of the judicial route through a PIL. According to him, a legal reform unaccompanied with socio-political movement can only be counter-productive.

 

Beyond the court-room, particularly in the context of this community, interventions at the level of the police become imperative. This is because the police are the biggest violator and the cases rarely go to the courts. Police is central to experiences of queer people. Rape and assault by the police become part of daily life, and do not register as a violation even for the victim. Every arrest or detention takes him to the police station. Mere presence of the advocate in the police station is sometimes enough to ensure that they will not be beaten up in custody.

 

But along with intervention at the police station, a legal education of the community has also been undertaken, largely to remove the fear of the police. Once the victims know what the police can do and what it cannot under the law itself, there is empowerment through the realization of rights.

 

Another task that Arvind very seriously engages in is building up of a history of violations through documentation. As experiences with formal legal spheres like the court and the police reveal that social biases play an important role in legal outcomes as well, it is important to intervene at the level of society as well. Given the fact that silence around the violations is the biggest problem on the queer issue, the need for such documentation cannot be over-emphasized. Arvind uses the parameters of the rule of law itself and tests their observance or otherwise in the context of queer people – analyzing violence from the State, family, medical establishment etc.

 

Thus, lawyering is understood in terms much beyond representation in a court and uses a number of non-traditional tools. Working closely with Sangama, Arvind’s work is very much rooted in the queer community.

 

The ALF is also the only place where alternative mode of lawyering is a consciously stated and serious concern. Breaking away from traditional mode of practice to engage more fruitfully and effectively with law contextualized in the socio-political system is a constant endeavor.

 

3.4 Legal-aid for undertrial and death-row prisoners: Yug Chaudhry & Nitya Ramakrishnan[21]

 

Yug Chaudhry is a legal-aid lawyer in Bombay who mainly represents indigent undertrial prisoners, slum-dwellers and juvenile delinquents. Yug believes that it is very difficult to bring about large scale changes using the law, particularly in respect to people who fall on the wrong side of the law, like most of his clients. However, the importance of his work lies in the fact that 15 minutes is usually the time he takes to make a detenu a free person or stop a slum demolition. Ironically, therefore, the value of law and legal representation to these victims of law itself cannot be overstated. Therefore, while is sees law as quite useless as far as structural changes are concerned, he has great faith in engagement with the law at the micro-level to bring about a difference in lives of individuals.

 

Yug is extremely critical of the PIL process, particularly because of the issue of implementation. He was one of the lawyers’ in the right to food petition filed by the PUCL. Even after the Supreme Court issued continuing mandamus and passed a number of very specific orders, their implementation remains questionable.

 

According to Yug, human rights lawyers are as mainstream as other lawyers since they need the same skills. Except the question of the fees charged from the client, he does not see any difference. He uses the same legal skills, language and strategy as is used by very mainstream lawyers. Like Flavia and Grover, he insists that human-rights lawyers need to be adequately equipped with traditional legal tools as well.

 

Besides court-room based lawyering, the only other form of his engagement with the law is law reform with which he engages substantially. He has recently published a critique of the Juvenile Justice Act and proposed an alternative.

 

Nitya Ramakrishnan is an ardent death-penalty abolitionist. Apart from her very mainstream legal practice, she takes up cases of death-row prisoners who cannot afford a defence. Again, like Yug, her practice is no different from any mainstream lawyer. The only issue with respect to the lawyer-client relationship is that, like the work of LC, death is a very real issue which takes its emotional toll on her work at a personal level. Apart from that, her work is restricted to defending the prisoners and building a death-penalty information database.  

 

3.5 Public Interest Lawyering: Rajeev Dhavan[22]

 

Rajeev Dhavan is a typical public interest lawyer, who also engages in mainstream writ litigation to subsidize his voluntary work. As a lawyer in a number of cases involving minority rights, secularism, contempt of court etc., he has sought to use the PIL system to achieve political goals. A typical intervention for him is the recent case of the crimes perpetrated in Gujarat, where he is one of the lawyers demanding accountability and rehabilitation. Again, in terms of legal strategy and practice, his mode of functioning has nothing alternative about it. As a senior counsel, he rarely meets the actual victims he intends to help. Usually the ‘cause’ is brought to him by other activists, and he intervenes in the court through a PIL.

 

However, apart from his legal practice, Dhavan extensively engages in legal research and writing in issues concerning human rights. As a regular columnist in The Hindu, he also sees his role as an educator of the public on these issues. Thus, he strives towards creating an awareness of rights and politico-legal issues through the media.

 

4. Dilemmas of an alternative lawyer: to use, abuse or not use the law?

 

The last chapter demonstrated that most activist lawyers in India, while they might be critical of the law, also have an abiding faith in the system’s ability to deliver. Their very choice to use law for the expansion of rights optimistically assumes that law, at least in liberal democracies, is an arena of struggle – a complex, contradictory, and open-textured setting that provides opportunities to challenge the status quo. This is partly based on the assumption that legally enforceable, well-entrenched constitutional rights provide an important bulwark for protection against arbitrary practices.[23] Except the ALF, there is no serious rethinking on the role of law and lawyers in securing social justice either. A true alternative lawyering tradition is still to take roots in legal practice in India, or at least such is my impression of the few activist lawyers I have looked at or worked with.

 

A number of human rights lawyers still use the PIL process extensively. Similar practice in the West has given rise to severe academic critiques from various schools of thought. Though rooted in the West, a number of the concerns raised by these critical legal theorists are relevant to the Indian context. This chapter highlights these concerns over the use of and engagement with law, which necessitate a response in a changed idea of legal practice – something that has been attempted by radical or alternative lawyering. Part of the dilemma is also a result of the actual experiences of activist lawyers in India. Wizened by theory and practice, one can no longer take for granted the efficacy of law reform, the benevolence of judicial activism, or even the usefulness of alternative lawyering in securing its avowed goals.

 

The question of the choice of the mode of lawyering, or even the choice of lawyering itself as a tool to secure justice, is intricately linked to the nature of law itself. The earlier phase of activist lawyering identified the problem as one of the gap between ‘law in action’ and ‘law in the books’, and therefore the obvious solution was to bridge this gap. This idea assumes an abiding faith that law if properly designed will further social justice, and therefore lacks a critical political outlook towards law and the State.[24] This practice is exemplified by the work done by organizations like the PUCL who used the rule of law standards against the state to hold it accountable. This view has been called into serious questioning by schools of thought linked to neo-Marxism, critical legal studies, postmodernism, feminist and critical race writings etc., which look at law as ideology instead of a neutral arbiter.[25]

 

The rights discourse has been the most important weapon wielded by activist lawyers in India and abroad. Its appeal to universality and inalienability has a certain charm that makes most social movements articulate their demands in the rights language. Of course, this over-emphasis on the rights language has not been without its benefits. Over the last half century, this universalist discourse has spread and seeped into areas inconceivable at an earlier time, and has given voices of legitimacy to movements of unpopular minorities, e.g. the queer movement. However, even this seeming success of the rights-discourse has come under serious challenge particularly from the Critical Legal Studies movement.  The inadequacy of the rights discourse lies in its failure to contribute to building of a sustained political movement. Instead of addressing alienation and powerlessness, ‘the appeal to rights inherently affirms that the source of social power resides in the State rather than in the people themselves’.[26]

 

As an alternative lawyer, one finds herself in a world where the law stands seriously questioned and the legal system discredited. If not the complete erosion of the efficacy of the rights discourse, rights-weariness has certainly set in. A major challenge is “how to set an agenda about justice in the 1990s post-Foucauldian, post-Marxian world of discursive power and subjectivities in which no group is authorized to construct for others a vision of a socially just world”.[27] 

 

The traditional model of progressive lawyering involves the manoeuvring of the existing legal system to expand rights and social welfare, and minimize discrimination. Some radical lawyers have questioned this notion saying that fundamental change cannot come about by this method which abandons the revolution for reform.[28]

 

This academic suspicion of the law has been supplemented with an activist disillusionment with its ability to deliver. Most alternative lawyers, at least in the Indian context, have until now worked towards the liberal-legalistic goal of expansion of rights. Gradually, a realization is setting in that even success in expansion of rights has limited impact on the real lives of people.

 

After two decades of focus on law reform to change society, the women’s movement in India has been forced to rethink the choice of the State as its site of struggle.[29] An activist Supreme Court invoking its public interest jurisdiction to expound a number of declaratory rights has also failed to usher in a social revolution. To give one example, even after the Supreme Court declared the right to primary education a fundamental right as part of the right to life,[30] a decade later access to primary education remains as illusory as ever for a large part of the population. Again, Public Interest Litigation, which was received with much fanfare by the civil society, has come to be appropriated for corporate, political and personal gains.[31] This articulation of the rights language by corporations, sometimes in opposition to movements by communities of people, has been referred to as ‘market-friendly human rights’ by Baxi.[32]

 

To add to the cynicism over the worthlessness of declaratory rights and the abuse of the process of Public Interest Litigation, some of the recent decisions of the Supreme Court in matters fundamental to the nature of the polity have raised serious misgivings about the judicial route to justice. Whether it was the decision to allow the drowning of hundreds of tribal villages for construction of a big dam,[33] allowing a right-wing government to rewrite school text-book history to further its fundamentalist political objectives,[34] or upholding the constitutional validity of a draconian legislation which impinges on civil liberties in the name of combating terrorism,[35] approaching the court has turned out to be bad legal strategy. Not only did it fail to provide any relief itself, the Supreme Court has also lent its legitimating voice to these changes and foreclosed the option of a socio-political mobilization on these issues. Increasingly, it is being realized within the alternative lawyering community in India that ‘an alternative to a movement cannot be a petition’.[36]

 

In civil law countries where courts are less independent and very reluctant to expand rights, the boundary between law and politics is clearly delineated. However, in the face of docile courts, frustrated lawyers often take up direct political strategies.[37] This may suggest that human-rights lawyering in common law countries may actually be doing the job of a safety valve, containing political mobilization through mainstreaming grievance redressal.

 

Again, in a context when one encounters an increasingly fascist State, any legal recourse seems ineffective. One of the recent examples was the pogrom committed in Gujarat in 2002. A number of reports from the civil society organizations[38] as well as State institutions like the National Human Rights Commission[39], National Commission for Women[40] and the Election Commission of India[41] clearly indicted the government of the State of Gujarat in allowing the killings and rapes to happen, and detailed the active role played by the police in this regard. This notwithstanding, when the same State government was voted into power with a huge majority, the alternative lawyers found themselves impotent and helpless. Though the case filed by the National Human Rights Commission before the Supreme Court has raised hopes of achieving a semblance of justice, no one expects anything radical from the Court.

 

In a context where the very existence of the democratic secular polity is under threat, even the liberal assumption of the legitimacy of rights is not guaranteed. Under the circumstances, alternative lawyers are a beleaguered people. Faced with the declaration of the inefficacy and illegitimacy of their profession by both theory and practice, alternative lawyers need to seriously rethink the meaning, form and goals of alternative lawyering. The lawyers have