Aims of This Book
This book is an achievement of the research project āinterdisciplinary study of dynamics of law and rights in contemporary Indiaā, consisting of cultural anthropologists, sociologists and political scientists. The essays in this book share two points as a common theoretical perspective: first, legal orderās āinstitutionalization from aboveā at the macro level and āinstitutionalization from belowā through peopleās everyday practices at the micro level meet in everyday life by being mediated with the concept of ārightsā; second, in everyday life there are contact zones of these two institutionalizations, a site where we witness social dynamics. This book provides descriptions of social dynamics in contemporary India by analyzing diverse cases with the viewpoint that it is the contact zone that āinstitutionalization from aboveā and āinstitutionalization from belowā, mediated by the concept of ārightsā, that reflect the ongoing democracy in contemporary India.
Since their independence in 1947, people in India have been consistently in a democratic regime, though they experienced a state of emergency declared by Indira Gandhi from 1975 to 1977, and they have struggled to deal with several problems throughout their history. In a country called āthe largest democratic country in the worldā democracy has been deepened through parliamentary democracy led by some elites, and participatory democracy through social movements, in order to add to the politics opinions and voices of those who cannot directly make claims in parliament. Since economic liberalization and economic development in the 1990s, peopleās participation in politics to seek dignity, fair redistribution and their places in Indian society have been increasing in an unprecedented way.
This book clarifies the relationship between legal order and democracy in India, with the focus on the concept of ārightsā and peopleās practices concerning the concept. The legal order here means a bundle of diverse laws represented by the Indian Constitution as the apex and the practices based on these laws, and āthe lived governanceā directing peopleās practices and cognitions. However, it is obvious that people have been raising their voices against suppressionājustified by such laws and administrationsāby the government, and such movements have resulted in an improvement in their conditions by forcing the government to constitute new laws while people often conform to the legal order through their everyday practices. In this sense, we need to understand the legal order as being inevitably renewed and revised by peopleās everyday practices. This book analyzes the dynamics of the legal order in contemporary India, and focuses on conflicts and negotiations between the legal orderās āinstitutionalization from aboveā, consisting of multi-layered rules constituted by the central government, state governments and other polity such as local assemblies, and legal orderās āinstitutionalization from belowā by peopleās everyday practices. Finally, this book aims to show how diverse actors activate Indian democracy on a daily basis by participating in politics in different ways.
The republic of India, where more than a billion people live, implements politics at two levels: first, the central government; second, the governments of twenty nine states and seven union territories. It has been struggling to include people in different categories into the nation-state. Each state and union territory government has legislative, administrative, judicial and financial functions according to the entitlement of the Indian Constitution, and each government constitutes different political situations because of this system. In addition, decentralization in India has been prompted. For instance, the 73rd amendment of the Indian Constitution in 1992 commanded the set up of self-governing, elected village councils called āpanchayatā and the 74th amendment declared the set up of elected municipalities, which is a similar system to panchayat, in urban areas (Singh 2015: 453; Sivaramakrishnan 2015: 560). These expansions of decentralization have enabled people to experience voting, and ensured accessibility to politics for the socially vulnerable with the help of the reservation system prescribed in the Indian Constitution. As a result, this direction has achieved a certain degree of success so far. Thus, the political context concerning contemporary India consists of a three-tiered structureācentral government, states and panchayatāand in each tier, the politics proclaimed by the people has brought about social dynamics. However, in order to understand Indian democracy, it is necessary to pay attention to, first, both national politics led by the central government and politics promoted by the state governments, and second, the hybridization of politics and rules between pre-modern laws and modern laws.
However, the central government still has an overwhelming influence on state governments from the viewpoint of law, though decentralization, which has supported people to participate in politics in different ways, shows a decrease of central governmentās influence on state governments. The source of its influence is, needless to say, the Indian Constitution, and it strongly influences the political direction of state governments. For instance, though each state is allowed to constitute state laws in state legislatures, these state laws must be under the Indian Constitution. And in the amendment to the Constitution in 1992, the position of local governments was enforced, but āwhile their elections, constitution, and composition are couched in imperative terms, their functional and financial powers remain limited and optionalā (Sivaramakrishnan 2015: 576). Thus, the Indian Constitution is the root of legal order in India and has been strongly influencing state-level politics.
While the huge influence of the Indian Constitution at the administrative level is apparent, we should carefully analyze how the Indian Constitution has been actually put into practice in order to see whether people have found meaningful provisions in the Constitution, such as the description about the reservation system. The adaptation of legal activism by the judiciary from 1978 to 1980 offers a referential point. The judiciary was attempting to establish a stable structure based on the support of Indian citizens in order to face a strong government, namely Indira Gandhiās regime, which declared a state of emergency and justified political interventions on judiciary personnel and amendments of the Constitution. In this situation, the judiciary utilized Public Interest Litigation (PIL). According to Divan, āFront and centre, PIL now occupies an unrivalled space in Indian constitutional law that bridges the citizen, the court, and the State. It arose in response to citizens seeking to curb widespread human rights violations or illegalities in government functioning that harmed public administration or the environmentā¦ PIL has become a vehicle of choice for those seeking redress of public grievancesā (Divan 2015: 663ā664). PIL in the Indian context gives citizens and organizations the right to file cases on behalf of victims and for public interest, and is well known for its flexible position in standing up for victims themselves. Consequently, PIL set by the judiciary has widened the role of the judiciary in political matters, and prompted the ājudicialization of politicsā. Similarly, it has been functioning as a source for many Indians seeking redress. It can be said that this situation, where the judiciary has urged the political participation of the people through the active use of provisions in the Constitution, has a strong linkage to the expansion of the political realm that people can participate in and the deepening of Indian democracy.
However, it does not mean that peopleās lives are affected only by implementations of the Indian Constitution by the central judiciary, the parliament as legislator and the administration as executor. As written above, not only the Indian Constitution and the state laws, but also the customary laws in villages, which influence arbitrations of conflicts and decision-making in everyday contexts and are sometimes incompatible with the provisions in the Constitution, direct peopleās practices in their everyday lives. In other words, the multi-layeredness of laws consisting of modern laws and customary laws constitutes the legal order in which people live. It is the legal order that prescribes forms of peopleās imagination and participation in politics. This book regards multi-layered rules as an indispensable facet of legal order. We cannot avoid paying attention to the legal order which sets up the Indian Constitution as its supreme rule, in order to clarify the contemporary form of Indian democracy which people in India actually experience. The main theme of this book is to analyze the legal order, and this book looks at practices of the central and state governments in India utilizing laws in a multi-layered way and realizing the legal order as āinstitutionalization from aboveā.
On the other hand, the law cannot be separated from peopleās daily activities. As detailed later, the legal order is realized through peopleās practices in concrete contexts. Everyday practices are sites for the visualization of the dynamics of law and democracy, whether people ratify the present legal order or seek a new one. This book regards issues concerning laws emerging from peopleās practices as an important component of the legal order. And it situates peopleās practices concerning rights, such as human rights, citizenship and the right to information at the moment of visualizing the dynamics of the legal order, and then attempts to clarify some aspects of contemporary India concerning laws and democracy. People in India have acquired the tools to express their predicament to the world through rights, and these ārightsā concepts have been drastically transforming their everyday lives and sometimes influencing legal systems in the central and state governments. This book regards loyalty for, and its use of, or decent (voice) against, the legal order through peopleās practices surrounding rights as āinstitutionalization from belowā.
The chapters in this book deal with multiple issues from the perspective of people having been driven by their rights and being directed by the legal order stemming from āinstitutionalization from aboveā and, at the same time, constructing the legal order through participating in politics in the form of āinstitutionalization from belowā. This book finally aims to show some parts of Indian democracy that people in India actually experience on a daily level. It is said that the everyday lives of people are a site for maintaining the status quo but sometimes objecting to it using the concept of ārightsā. ...