For social movements, the justice system is but one avenue in a constant battle shaping human rights

This is a lightly edited excerpt from the first Professor MN Karna Memorial Lecture that was delivered in Patna on April 7, 2024. Late Prof MN Karna (1942-2023) was a sociologist who closely worked with various social movements on the issues of land, democratic rights and secularism.

Civil society groups have either emerged from or have been principal supporters to social movements, as we saw during the anti-Citizenship Amendment Act protests and the protests by farmers against the proposed farm laws a couple of years ago. They have been involved in mobilising, organising and educating various interest groups to articulate their concerns in the public domain, helping them to engage with institutions and those in power.

Whether it is a gathering of the Narmada dam oustees spearheaded by the Narmada Bachao Andolan, or the groups of Bhopal gas victims, they have been a force to reckon with politically. These mass movements have perhaps contributed in no small measure to law and policy making in both the international and national spheres.

In the last four decades, there has been a persistent groundswell of mass movements and civil society campaigns around recognition, protection and enforcement of a range of economic, social and cultural rights.

This has contributed in large measure to the legislature in India according statutory recognition of the minimum core elements of economic and social rights by enacting a series of legislations like the rural employment guarantee legislation that fixes the daily wage and the number of days of work to afford a decent standard of living to rural households, the National Food Security legislation that mandates states to provide minimum nutritional levels and within the larger group identify the more vulnerable ones, like children, lactating mothers, the elderly and those living below the poverty line, as being entitled to these basic minimum nutritional food.

In his article “Constitutional change, Courts and social movements”, legal scholar Douglas neJaime points out how the labour, civil rights and women’s movement shaped constitutional norms and in turn have been shaped by those norms.

He argues that in courts:

“Constitutional meanings can be asserted and defended. Courts therefore offer opportunities for extrajudicial actors to articulate and hone a variety of constitutional visions. Courts eventually validate meanings that have become reasonable through the course of continued debate and persuasion. New constitutional meaning becomes authoritative not because the court decided so independently but because social movements have persuaded political forces, opinion leaders, the public and the judges that the new position is reasonable and in fact correct. In this way constitutional change is a bottom-up process in which courts are not leading but instead responding to external changes.”

Claims once thought unthinkable become reasonable not because of the new-found wisdom of judges but because of the ways in which social movement activism shapes popular and elite understandings of the meaning of constitutional values.

Even a decade ago, one could not have imagined that there would be open public debate on the rights of the LGBT community. Judicial intervention in these areas has undoubtedly opened up the spaces for dialogue There is a churning. The NALSA judgement [that granted rights to the transgender community] is another example of the Court playing a major role in not only highlighting the plight of a special interest group but ushering social change through law.

And yet, court intervention is but one many strategies that interest groups have to advance the cause of the repressed. It has to be combined with constant engagement, dialogue, advocacy and sometimes contestation with other actors, state and non-state.

Social legal scholars engaged in legal mobilisation and cause lawyering often remind us that social movement advocates neither put all their hopes in courts nor look to courts to single-handedly produce change. Instead, these advocates view litigation as a significant but partial tactic – one that works in conjunction with other tactics and deeds rather than displaces other forms of mobilisation. They come to the courts in the expectation that it might provide them the democratic space in which to articulate and test the persuasive strength of the group’s claims.

Numerical and other minorities present their concerns and, importantly, seek and obtain information concerning themselves, which might otherwise be routinely denied to them by an opaque, and inaccessible state. They can compel the state and other opposing interest groups to acknowledge their presence, their issues. Courts might also facilitate such marginalised groups convert their constitutional claims into enforceable legal entitlements.

Professor Roberto Gargarella of Argentina too sees courts as being the proper spaces for experimentation in deliberative democratic practices. Courts, he believes, can while adjudicating social rights foster dialogue between the state and the people. He states:

“Judicial decisions in the area of social rights should contribute to integrate groups that were improperly marginalised by the political system; or by forcing political authorities to justify their decisions in a more solid way.”

He has spoken of popular and dialogic constitutionalism as a preferred approach. He is sceptical of the checks and balances approach which he sees as being institution centric, limiting and not facilitating meaningful dialogue.

Recently, however, Professor Gargarella has expressed doubts whether dialogic processes, without equality (where all participants in the dialogue are on a equal footing) deliberation (which he describes as exchange of ideas) and inclusion (where no affected set of people are left out), can achieve the desired result.

He is not sanguine about the judiciary’s attempts at ordering public hearings in structural cases. There is, he says, too much dependence on the goodwill and discretion of sensitised judges. He believes that the “top down” attitude of the judges persists. For him, simply having provisions in the Constitution that facilitate social justice is not enough. The “engine room” of the Constitution has to undergo changes, he says.

There are other jurists who require to be heeded. Legal scholar Professor Karl Klare talks of “transformative constitutionalism” as being the guiding principle for ushering a more equal and equitable society. This, he says, involves “a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”.

After studying a decade’s work of the South African Constitutional Court, Klare has this to say to the judges: “future generations will not judge the Constitutional Court by how closely it followed traditional strategies of analysis, but rather by the extent to which it contributed to the many issues of social and political transformation – equality, social justice, democracy, multiracialism and dignity.”

The task of social movements going ahead

One can safely estimate that for every “success” in court there may have been several prior and later failures. And some of the successes could be “qualified” successes.

We should recall here the critiques around the decisions of Brown vs Board of Education of the US Supreme Court [which held that racial segregation in public schools violated the Constitution], Grootboom of the South African Constitutional Court [on the eviction of an informal settlement] and Olga Tellis of the Indian Supreme Court [on the rights of pavement dwellers]. There is a justified misgiving that in these decisions the Courts only went that far and no further.

Civil society groups in India, as perhaps elsewhere in the world, are aware that having a law enacted, or having a judgement in their favour, that recognises, protects and provides a mechanism for enforcement of economic, social and cultural rights, is but the first step in a long struggle for realising the emancipatory function of these instruments of social change.

There has to be a continuous engagement with the organs of the state – be it the government of the day, the legislature or the judiciary – to make the law work for the people.

Civil society groups are neither complacent because of their momentary victories or despondent because of failed attempts at persuading courts and legislatures. They know that this is a work in progress. That coming generations will and should pick up the baton from where they leave it.

Fact gathering, public hearings, demanding accountability, transparency, going back to the Court for enforcement of its decisions are all part of a bouquet of strategies that require to be deployed over a period of time for realising the full potential of the laws that have come about as a result of long years of sustained campaign. Nothing can and should be taken for granted. And there is a teaching that has to be imparted for later generations to keep the democratic traditions alive.

It is in this context that the moves to curb the activities of civil society groups, especially those working in the area of poverty alleviation, by cutting off their sources of funds and subjecting them to intense scrutiny by law enforcement agencies must come in for critical comment.

History teaches us that since civil society groups do practice a form of left-leaning alternative politics, not unsurprisingly they have met with countervailing moves from state and corporate interest groups to have their own civil society groups or co-opt those already in the fray.

And then there are religious and caste formations jostling for space in this so-called non-political space. India has its share of social movements morphing into political formations with the demasking facilitated by a conducive combination of circumstances. All of this in a vibrant democracy is par for the course.

Where social movements eschew the temptation to share power with political formations, subject themselves to strict scrutiny for democratic and transparent practices, be prepared to share information of their sources of funding and their expenditure in the public domain, they will garner the trust and confidence of the constituents they are working for.

We still have in our midst organisations and individuals remaining steadfast in their adoption of Gandhian ideals. Of course, Father Stan Swamy’s example is a grim reminder that this by itself is not a guarantee against arbitrary state action.

The democratic spaces in our country are undoubtedly “noisy” but it is important that amidst the churning and the chaos we are able to forge forward with a clarity of vision. While a democratic form of government is no doubt an essential prerequisite for the realisation of human rights, unless people constantly work the Constitution, keep asserting their rights and freedoms and demand the recognition, protection and enforcement of economic, social and cultural rights, the realisation of human rights would remain aspirational and not emancipatory.

It is then an imperative for social movements and definitely the civil society groups to comprise those who are prepared to internalise the constitutional values enshrined in the Preamble to our Constitution at a personal level and be constantly reminded of the expectation and promise of the practice of “constitutional morality”.

Justice S Murlidhar is former Chief Justice of Orissa High Court and Judge of the Punjab and Haryana High Court and Delhi High Court.

This is a lightly edited text of the first Professor MN Karna Memorial Lecture that was delivered in Patna on April 7. Prof Karna (1942-2023) was a sociologist who closely worked with several social movements on the issues of land, democratic rights and secularism.