Gold Medal

Vol.
11(1)
Socio-Legal Review
ISSN 0973-5216
A PUBLICATION OF THE LAW AND SOCIETY COMMITTEE
Vol. 11(1)
2015
ARTICLES
Wizards at Making a Virtue of Necessity: Abhayraj Naik

Street Vendors in India
SOCIO - LEGAL REVIEW
The Politics of Financial Regulation
Sanaa Ahmed
Gram Panchayats to Gram Nyayalays:

The Indian State and Rural Justice
Shishir Bail
Judicial Restraint in an Era of Terrorism: Shylashri Shankar

Prevention of Terrorism Cases and
Minorities in India
NOTES FROM THE FIELD

Finding Subaltern Voices: A Case for
Kriti Sharma
Preservation of Colonial Legal Proceedings
BOOK REVIEW
2015
Critical International Law: Postrealism,

Postcolonialism and Transnationalism
Ashwita Ambast
SOCIO-LEGAL REVIEW
Vol. 11(1)
2015
BOARD OF ADVISORS
HILARY CHARLESWORTH
SANKARAN KRISHNA
DIPESH CHAKRABORTHY
NIVEDITA MENON
H. RAJAN SHARMA
SITARAM KAKARALA
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TEJASWINI NIRANJANA
SUDHIR KRISHNASWAMY
FIONA A. KUMARI CHAMPBELL
UPENDRA BAXI
FACULTY ADVISOR
DR. SARASU E. THOMAS
BOARD OF EDITORS
JAHNAVI SINDHU
ANISH MOHANTY
MANNAT SABHIKHI
GAGANJYOT SINGH
NAYANTARA RAVICHANDRAN
PRAGGYA SURANA
SHIVA SANTOSH YELAMANCHILI

LINE EDITORS
VANSH GUPTA
ANAND
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TECHNICAL MEMBER
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N ATIONAL L AW SCHOOL OF INDIA U NIVERSITY, BANGALORE.
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Mode of Citation: 11(1) SOCIO-LEGAL REV. <PAGE NO.> (2015)
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ABOUT THE JOURNAL

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The Socio-Legal Review (SLR) is a student-edited, peer-reviewed interdisciplinary
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iii
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SOCIO-LEGAL REVIEW
A biannual journal published by the Law and Society Committee, National
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EDITORIAL NOTE
On an academic level, the realm of socio-legal is cast wide open. Accordingly,
The Editorial Board of the Socio-Legal Review accepts exemplary scholarship
that demonstrates a perceivable link between law and society. Unfortunately, over
time in India due to limited scholarship in the field, the concept has come to be
encumbered within traditional confines and notions. Thus, several areas of law
and issues are omitted from useful and telling inquiries under the socio-legal lens.
The endeavour of the Socio-Legal review this year has been to explore the
unconventional manifestations of the socio-legal amidst issues, which, in India,
have long been considered far removed from this realm. The growing recognition
that even simple private transactions between parties can have deep socio-legal
implications and roots can be attributed to the inextricable manner in which
transactions, issues and instance have come to be linked with one another, thus
adding another dimension to the socio-economic milieu, which the law must
accordingly cater and respond to. These issues prompt inquiries that are dynamic
enough to factor in issues at both a micro and macro policy level.
To best demonstrate this point through this issue, Mr. Abhayraj Naik, In
Wizards At Making A Virtue Of Necessity: Street Vendors In India, employs the
issue of regulation of street vendors in India to prompt us to slow down and
examine how the use of public spaces in India has been reoriented owing to
urbanism, consumerism and commodification.
In a similar vein, Sanaa Ahmed in The Politics of Financial Regulation, analyses
the regulatory measures that have followed the Economic Recession of 2008 from
a political lens. She argues that beneath the copious technical jargon, these measures
are rooted in exerting a certain amount of political control over the global economy
and discusses the possible implications of such control to raise pertinent questions
of accountability and legitimacy and the way forward.
Ms. Shylashri Shankar in Judicial Restraint in an Era of Terrorism: Prevention
of Terrorism Cases and Minorities in India, evaluates how the Apex Court in India
has fared in preserving traditional notions of rule of law, due process and individual
liberty in the face of exigencies of the modern state. In particular, she analyses the
vii
judicial treatment of minorities in cases involving the interpretation and application

of the Prevention of Terrorism Act. Indeed, this piece touches upon rather topical
issues in the immediate Indian scenario given the revival of the debate of due
process following Yakub Memons execution. At the same time, this piece also
lends an insight into the importance of empirical analysis in understanding sociolegal issues.
Mr. Shishir Bail in Gram Panchayats to Gram Nyayalays: The Indian State
and Rural Justice, takes us to the grassroots to explore the recent avenue for access
to justice to provided in Indian villages by way of Gram Nyayalayas through the
Gram Nyalayas Act, 2009. In this paper, he evaluates whether this new forum of
adjudication for rural litigants, in line with other decentralized forums, mirrors
indigenous forms of dispute resolution or have devised ways to incorporate modern
forms of adjudication to render rural justice.
Ms. Kriti Sharma in Finding Subaltern Voices: A Case for preservation of
Colonial Legal Proceedings, a practical account in our Notes from the Field Section
analyses the state of documentation of legal proceedings from the colonial times
across the Bombay, Calcutta and Madras High Courts. In an attempt to reconstruct
the narrative of colonized subalterns, she critiques the current state of legal
documentation in the country and suggests changes accordingly.
Finally, Ms. Ashwita Ambast reviews the recent book released by Oxford
University Press on International Law titled Critical International Law: Postrealism, Post-colonialism And Transnationalism (Prabhakar Singh & Benot Mayer
eds., 2014), that as the name suggests analyses the seldom explored aspects of
International law which, in the course of their inquiry occasion a socio-legal
inquiry.
We hope that this issue can critically answer the questions we have posed
through it. The publication of this issue has been rendered smooth owing to
numerous people. We would like to thank our remarkable peer reviewers who
have gone above and beyond what was required of them on very tight deadlines.
We are immensely grateful for the time they devote to the reviews, fully aware
that they have multiple work and other commitments. Special thanks must also
be given to the line editors of this issue- Vansh Gupta and Subhankar Pasalapudiwho painstakingly line edited every word in this issue to even garner the praise of
viii
every author who has contributed to this journal. Additionally, we would also
extend our heartfelt gratitude to the members of the Editorial Board of previous
years, in particular years 2010-13, for guiding us throughout and answering every
query, big or small at any time of the year. And lastly, to the institutional support
we get from law school- Professor Sarasu Thomas, our faculty advisor, for her
support and patience. We must also place on record our thanks for enthusiasm of
our Vice Chancellor, Dr. Venkata Rao in taking the issues from strength to strength
as well as the staff at his office, in particular Ms. D.S. Usha, for helping out with
the logistical aspects of publishing.
We look forward to our readers comments on the issue that can be taken
forward by the succeeding and promising Editorial Board of the year 2015-16.
Jahnavi Sindhu & Mannat Sabhikhi,

Editor-in-Chief and Deputy Editor-in-Chief,
Socio-Legal Review,
Bangalore,
July 2015.
ix
SOCIO-LEGAL REVIEW
Vol 11(1)
2015
CONTENTS
ARTICLES
Wizards At Making A Virtue Of Necessity: Street Vendors In India
Abhayraj Naik ...................................................................................................... 1
Sanaa Ahmed ..................................................................................................... 61
Gram Panchayats to Gram Nyayalays: The Indian State and Rural Justice
Shishir Bail ......................................................................................................... 83
Judicial Restraint in an Era of Terrorism: Prevention of Terrorism Cases
and Minorities in India
Shylashri Shankar ............................................................................................ 103
NOTES FROM THE FIELD

Finding Subaltern Voices: A Case for Preservation of Colonial Legal Proceedings
Kriti Sharma .................................................................................................... 125
BOOK REVIEW
Critical International Law: Postrealism, Postcolonialism And Transnationalism
Ashwita Ambast .............................................................................................. 133
ix
x
Vol. 11(1)
Socio-Legal Review
2015
WIZARDS AT MAKING A VIRTUE OF NECESSITY:

STREET VENDORS IN INDIA
Abhayraj Naik*
Street vending is ambivalent in Indias imagination of law, space, and
self. This essay attempts to excavate street vending in India as an
interstice: an enquiry directed towards how street vending is entangled
with specific theoretical and ideological positions concerning culture,
citizenship, commodification, consumption, globalization, legality,
modernity, neoliberalism, poverty, politics, public space, and social
movements. The focus of my excavation of interstitial street vending in
India is twofold. First, a methodological front-staging of the
interconnections between law, space and time in India. Second, an
acknowledgment of the importance of revisionist accounts of Indian
modernity; accounts that note emergent politics of urban space and the
city while avoiding seductive binary reductionisms of public/private,
inside/outside, formal/informal, legal/illegal, planned/unplanned,
liberal/socialist, colonial/post-colonial, and modern/obsolete. While this
essay focuses on an admittedly eclectic range of themes and categories of
analysis, the hope is that the reader is nonetheless left with a sense of
what is at stake and what must be considered in ongoing discussions on
market reforms, public space, urbanism, informality and urban street
vending in India.
*
Azim Premji University, Bengaluru, and Environment Support Group, Bengaluru. Earlier
versions of this essay were presented at Azim Premji University (Bengaluru) and the International
Society of Public Law (ICON-S) 2014 conference on Rethinking the Boundaries of Public Law
and Public Space in Florence, Italy. An early stage essay, which this full-length essay updates and
builds upon, was published on the National Association of Street Vendors of India (NASVI)
website, on the Law, Governance and Development Initiative (LGDI) blog in 2013, and was
included in part in a 2012 report on street food vending and competition law prepared by the
Institute of Social Studies Trust, New Delhi. In particular, I am grateful to Ganesh Trichur, Luigi
Russi, Atreyee Majumdar, Uday Khare, Ratna M. Sudarshan, Renana Jhabvala, Bhargavi S. Rao,
Leo Saldanha, Anil Sethi, Navdeep Mathur, Sudhir Krishnaswamy, Mukta Naik, Mathew Idiculla,
Sonal Sharma, Vishnupad, Sharath Chandra Ram, Rachel Chenchiah, an anonymous reviewer
of this journal, and the students of the Human Rights Clinic at Azim Premji University for
comments on earlier versions of this essay and for many discussions on this topic. The editors of
the Socio-Legal Review displayed truly heroic patience and genuine understanding at all levels of
this writing enterprise. I retain responsibility for the views contained here and for any errors
that might have inadvertently crept in.
Wizards at Making a Virtue of Necessity: Street Vendors in India
INTRODUCTION
Street vending is ambivalent in Indias imagination of law, space, and self. The
Tamil epic poem Cilappatikram (estimates of when this was written date back at
least 1500 years) includes a detailed description of the vibrant presence of street
vendors in Pukr (the Khaberis of Ptolemy), the then capital of the Chola empire,
during the Festival of Indira.1 More recently, Satyagraha (literally translated as
truth-force), the non-violent civil resistance perfected by Mohandas Karamchand
(Mahatma) Gandhi, had amongst its earliest practitioners, hundreds of satyagrahi
street vendors who peacefully courted arrest in South Africa in response to the
discriminatory provisions of the (Transvaal) Asiatic Registration Act, 1907.2 In
1937, the District Magistrate was advising City Magistrates of Kanpur to adopt
ruthless measures to prosecute, fine, displace and dispossess offending hawkers,
vendors, transport pliers and carters, artisanal workmen who worked at the
roadside.3 In independent India, the phenomenon of street vending has been the
subject of several decisions of the Supreme Court and of numerous state High
Courts, apart from also featuring in a number of national policies, state-level and
city-level laws, and municipal regulations. Recently, the Street Vendors (Protection
of Livelihood and Regulation of Vending) Act, 2014 a national law
unambiguously recognised urban street trade as a legitimate but regulated activity
across India.
This essay attempts to excavate street vending in India as an interstice: an enquiry
directed towards how street vending is entangled with specific theoretical
and ideological positions concerning culture, citizenship, commodification,
consumption, globalization, legality, modernity, neoliberalism, poverty, politics,
public space, and social movements. Levesque, in a useful synoptic overview
of the relevant conceptual literature, points out that depending on the point of
view,
interstices can be associated, on the one hand, to absence, interruption
and interpolation (Gallet 2002), breaks, dislocations and disjunctions
1
2
3
Canto 5 of R. Parthasarathys lovely translation mentions hawkers of paints, scented powders,

cool sandalwood paste, flowers, incense, and fragrant perfumes who go round the city streets;
pedlars of pastry and appam; women hawking wine; fishermen offering fish; vendors of
white salt; sellers of betel and so on. See THE CILAPPATIKRAM: THE TALE OF AN ANKLET
(R. Parthasarathy trans., 1993).
MOHANDAS KARAMCHAND GANDHI, SATYAGRAHA IN SOUTH AFRICA Ch. 20 (1928).
NANDINI GOOPTU, THE POLITICS OF THE URBAN POOR IN EARLY TWENTIETH-CENTURY INDIA 105108 (2001).
Vol. 11(1)
Socio-Legal Review
2015
(Foucault 1966; Deleuze 1986; Bhabha 1994), gaps (Lefebvre 1974),

leaks and escapes (Handke 1987; Massumi 1992; Tonnelat 1999),
ruptures and cuts (Deleuze 1985; Tafuri 1987) or, on the other hand,
to tissues drawing on the connective notion of the anatomical
interstitial tissues links and relations (Bourriaud 1998), interactions
(Miller 1939), connections and, by extension, hybridity and the
meeting of differences (Remy 1986; Bhabha 1994).4
My deployment of the term interstice in the context of street vending in India
relies primarily on a space-time of under-determined, unknown, and evolving
normative-material possibilities. The focus of my excavation of interstitial street
vending in India is twofold. First, a methodological front-staging of the
interconnections between law, space and time in India.5 This helps in relating
4
Luc Levesque, Trajectories of Interstitial Landscapeness: A Conceptual Framework for Territorial

Imagination and Action, in URBAN INTERSTICES 24 (Andrea Mubi Brighenti ed., 2013); the
references made are: BASTIEN GALLET, LE BOUCHER DU PRINCE WEN-HOUEI (2002); MICHEL FOUCAULT,
LES MOTS ET LES CHOSES (1966); GILLES DELEUZE, FOUCAULT (1986); HOMI K. BHABHA, THE LOCATION
OF CULTURE (1994); HENRI LEFEBVRE, LA PRODUCTION DE LESPACE (1974); Peter Handke, Interview
with Herbert Gamper in ESPACES INTERMDIAIRES (1992); BRIAN MASSUMI, A USERS GUIDE TO
CAPITALISM AND SCHIZOPHRENIA: DEVIATIONS FROM DELEUZE AND GUATTARI (1992); STPHANE
TONNELAT, Times Square, Superposition, in 85 LES ANNALES DE LA RECHERCHE URBAINE 43 (1999);
GILLES DELEUZE, CINMA 2: LIMAGE-TEMPS (1985); MANFREDO TAFURI, THE SPHERE AND THE LABYRINTH:
AVANT-GARDES AND ARCHITECTURE FROM THE PIRANESI TO THE 70S (1987); NICOLAS BOURRIAUD, ESTHTIQUE
RELATIONNELLE (1998); HENRY MILLER, TROPIC OF C APRICORN (1939); JEAN REMY, La limite et linterstice:
la structuration spatiale comme ressource sociale, in L A T HORIE DE LE SPACE HUMAIN:
TRANSFORMATIONS GLOBALES ET STRUCTURES LOCALES (Pierre Pellegrino ed., 1986). Further,
Brighenti identifies two general points of view on interstices the structuralist one and the
event-oriented or evental view. While the former regards the interstice as a leftover space, what
remains after a single, central planning process, or between two heterogeneous and discontinuous
plans, the second perspective adds, to a realistic and therefore necessary consideration of
power relations, a genealogical point of view that attends all the minute accidents that eventually
constitute the specific atmosphere understood as both ambience and pressure - of a given place.
Adding movement to our understanding of the interstice is what shifts us from the first to the
second perspective. See Andrea Mubi Brighenti, Introduction to URBAN INTERSTICES, at xviii
(Andrea Mubi Brighenti ed., 2013). See also, Desmond Manderson, Interstices: New work on
legal spaces, 9 Law Text Culture 1 (2005).
See generally, IRUS BRAVERMAN ET AL., THE EXPANDING SPACES OF LAW: A TIMELY LEGAL GEOGRAPHY
(2014); NICHOLAS BLOMLEY, PROPERTY, LAW AND SPACE (2014); Manderson, supra note 4; HENRI
LEFEBVRE, THE PRODUCTION OF SPACE (Donald Nicholson-Smith trans., 1991). Braverman, Blomley,
Delaney and Kedar, in their introduction to Expanding Spaces of Law point out that [l]egal
geography is a stream of scholarship that takes interconnections between law and spatiality, and
especially their reciprocal construction, as core objects of inquiry Legal geographers note that
nearly every aspect of law is located, takes place, is in motion, or has some spatial frame of reference.

social processes in the city to the spatial form which the city assumes.6
Second, an acknowledgment of the importance of revisionist accounts of Indian
modernity;7 accounts that note emergent politics of urban space and the city while
avoiding seductive binary reductionisms of public/private, inside/outside,
formal/informal, legal/illegal, planned/unplanned, liberal/socialist, colonial/postcolonial, and modern/obsolete.8 In this essay, I briefly focus on the law relating
to street vending in Indian cities to identify what the right to the city
discourse, 9 and related notions of spatial justice, 10 might tell us about the
unfolding of modernity in contemporary neoliberal India.
6
10
See DAVID HARVEY, SOCIAL JUSTICE AND THE CITY, 23 (2009). Harveys seminal work explores this
central, overwhelming, and unchanging concern with social process and spatial form through an
exploratory analysis of four fundamental interlocking themes: the nature of theory, the nature of
space, the nature of social justice, and the nature of urbanism.
For example, Gyan Prakash points out that the urban turn offers an opportunity to revise the
history of Indian modernity, to bring into view spaces of power and difference suppressed by the
historicist discourse of the nation. See Gyan Prakash, The Urban Turn, in SARAI READER 2002:
THE CITIES OF EVERYDAY LIFE 6 (2002).
Scholars such as Chatterjee, Kaviraj, Nandy and Chakrabarty, amongst others, have persuasively
argued for the importance of carefully studying the shapes, forms, and practices of postcolonial
urban politics in India while avoiding the pitfalls of a Western, reductionist, singular, and
universalized conceptualization of modernity and its associated political norms for urban sociality.
See for example, PARTHA CHATTERJEE, LINEAGES OF POLITICAL SOCIETY: STUDIES IN POSTCOLONIAL
DEMOCRACY (2009); Sudipta Kaviraj, Filth and the Public Sphere: Concepts and Practices about
Space in Calcutta, 10(1) PUBLIC CULTURE 83-113 (1997); Ashis Nandy, Introduction: Indian
Popular Cinema as the Slums Eye View of Politics, in THE SECRET POLITICS OF OUR DESIRES:
INNOCENCE, CULPABILITY AND INDIAN POPULAR CINEMA (1998); DIPESH CHAKRABARTY, RETHINKING
WORKING-CLASS HISTORY: BENGAL 1890-1940 (1989).
See Henri Lefebvre, The Right to the City, in WRITINGS ON CITIES, 147-159 (Eleonore Kofman &
Elizabeth Lebas trans. and eds.,1996); DAVID HARVEY, REBEL CITIES FROM THE RIGHT TO THE CITY
TO THE URBAN REVOLUTION (2012); Marianne Morange & Amandine Spire, A Right to the City in
the Global South?, METROPOLITICS (April 17, 2015), http://www.metropolitiques.eu/A-Right-tothe-City-in-the-Global.html ; LOCATING RIGHT TO THE CITY IN THE GLOBAL SOUTH (Tony Roshan
Samara et al eds., 2013); UNESCO, URBAN POLICIES AND THE RIGHT TO THE CITY IN INDIA RIGHTS,
RESPONSIBILITIES AND CITIZENSHIP (MarieHlne Zrah et al eds., 2011).
For conceptual explorations of spatial justice, see HARVEY, supra note 6; ANDREAS PHILIPPOPOULOSMIHALOPOULOS, SPATIAL JUSTICE: BODY, LAWSCAPE, ATMOSPHERE (2014); and the collection of articles
in the volumes (2009 2015) of justice spatiale | spatial justice, available at http://www.jssj.org.
Edward Soja, for example, reminds us that critical spatial thinking today hinges around three
principles: a) the ontological spatiality of being (we are all spatial as well as social and temporal
beings); b) the social production of spatiality (space is socially produced and can therefore be
socially changed) and; c) the socio-spatial dialectic (the spatial shapes the social as much as the
social shapes the spatial). See Edward W. Soja, THE CITY AND SPATIAL JUSTICE (Sophie Didier and
Frdric Dufaux trans., September 2009), SPATIAL JUSTICE, http://www.jssj.org.
Vol. 11(1)
Socio-Legal Review
2015
While this essay focuses on an admittedly eclectic range of themes and categories
of analysis, the hope is that the reader is nonetheless left with a sense of what is at
stake and what must be considered in ongoing discussions on market reforms,
public space, urbanism, informality and urban street vending in India. I do not
attempt to provide explicit answers; the endeavour is focused more on raising
questions, reviewing and selectively juxtaposing the relevant literature, and on
promoting critical thinking on a set of interlinked discursive arenas.
OCCUPYING URBAN PUBLIC SPACE
In a rare break from conservatism in urban political expression, the Edinburgh
City Council on 24th November, 2011 formally voted to recognise the occupation
of St. Andrew Square, in the citys historic financial quarter, in a motion put
forward by Green candidate Maggie Chapman. The city council recognised the
aims of the Occupy movements throughout the world and [did] understand that
they are an attempt to redirect economic decisions to be more orientated toward
the poor and disenfranchised which is a sentiment the Council endorses.11
Recent spontaneous peoples protest movements in Athens, Bangkok, Barcelona,
Berkeley, Cairo, Hong Kong, Istanbul, Madrid, New Delhi, New York, Rio de
Janeiro, Wisconsin etc. (and the Arab Spring protests across Tunisia, Egypt,
Libya, Yemen, Bahrain, Syria, Algeria, Iraq, Jordan, Kuwait, etc.) often began
with, or transformed into, protests on, and occupation of, public squares in cities
(some reports suggest that the Arab Spring in Tunisia was sparked by the selfimmolation of a street-vendor protesting harassment by governmental officials).12
The European economic crisis, which over the past few years has seen public
protests in streets, parks, universities and parliaments across major European cities,
has recently resulted in the partial victory of Spains indignados in municipal and
regional elections.13 Amongst the unfortunate victims of the 7th September 2011
11
12
13
EDINBURGH CITY COUNCIL RECOGNISES OCCUPY EDINBURGH, EDINBURGH GUIDE,

http://www.edinburghguide.com/news/edinburghcitycouncil/9562edinburghcitycouncil
recognisesoccupyedinburgh.
See generally, Preface to HARVEY, supra note 9; Craig Calhoun, Occupy Wall Street in Perspective,
64(1), THE BRITISH JOURNAL OF SOCIOLOGY, 26-38 (2013).
Spains Indignados Could Rule Barcelona and Madrid after Local Election Success, THE GUARDIAN,
http://www.theguardian.com/world/2015/may/25/spains-indignados-ada-colau-electionsmayor- Barcelona.

Delhi High Court bomb blast were street vendors demanding judicial protection
of their livelihood rights on the streets. Anna Hazares anti-corruption crusade in
India captured the worlds imagination through public protests in public spaces
across Indias cities all beamed 24x7 to television sets across India and the world.
This anti-corruption movement sparked off a series of events culminating in the
recent surprise electoral (repeat) victory of the Aam Aadmi Party (AAP) in the
New Delhi regional elections in February 2015; the AAP promises participatory
budgeting, localised participatory governance, and permanent spaces for street
vendors amongst other things.14 These seemingly disconnected events, on closer
examination, reveal themselves to be the anticipatable consequences of a mode of
thinking that the eminent economist E.F. Schumacher has described as one of the
most fateful errors of our age the belief that the problem of production has
been solved.15 Though then largely unnoticed by Western economists, the Indian
visionary Mohandas Karamchand Gandhi had stated much the same proposition
by pointing out that the question of how much should a person consume? could
be correctly answered only by appreciating that the world had enough for
everybodys needs but not for anybodys greed.16
The centrality of mode of production in humanistic Marxist thought highlights
a particularly useful ontological and epistemological framework through which
revolutionary and counter-revolutionary urbanisms may be usefully analysed,
and possibilities of interstitial spatial justice may be glimpsed.17 In this broad Marxist
14
15
16
17
The issues of governance and public service delivery in Delhi are complex. We believe they can
be addressed only through the idea of Swaraj, which means self-governance, not merely good
governance. In real terms it means that people would, and must, have a significant say in policies
that affect their lives and not limit themselves to casting their votes once every five years. See,
AAP ManifestoDelhi Assembly Elections 2015, A AM A ADMI P ARTY , http://
www.aamaadmiparty.org/AAP-Manifesto-2015.pdf.
E. F. SCHUMACHER, SMALL IS BEAUTIFUL: A STUDY OF ECONOMICS AS IF PEOPLE MATTERED 4 (1973).
For Gandhi, [t]he distinguishing characteristic of modern civilization is an indefinite multiplicity
of wants, whereas ancient civilizations were marked by an imperative restriction upon and a
strict regulating of those wants. See, Choice Before Us, YOUNG INDIA (2 June 1927), in 38 THE
COLLECTED WORKS OF MAHATMA GANDHI (ELECTRONIC BOOK) 483 (1999).
"The totality of these relationships of production constitutes the economic structure of society,
the real foundation, on which arises a legal and political superstructure and to which correspond
definite forms of social consciousness. The mode of production of material life conditions the
general process of social, political and intellectual life. It is not the consciousness of men that
determines existence, but their social existence that determines their consciousness Changes in
the economic foundation sooner or later lead to the transformation of the whole immense
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tradition, the path-breaking work on urbanism and spatial justice initiated by

Henri Lefebvre and David Harvey usefully contextualises the politics of urban
space in todays contemporary moment.18 While an elaborate articulation of the
intellectual corpus of Lefebvre and Harvey is not possible here, I use below a few
brief extracts to convey some of their important views on the nature of the
relationship between space, urbanism and capitalist production.
Butler points out that for Lefebvre, the dialectical unity of the three dimensions
of space the mental, the physical, and the lived is crucial to any explanation of
spaces production and social use, and that Lefebvre essentially reworks Marxs
chronology of historical stages of social development as a history of modes of
production of space.19 For example, Lefebvre, in the Social Production of Space
reminds us that
18
19
superstructure. In studying such transformations it is always necessary to distinguish between the

material transformation of the economic conditions of production, which can be determined
with the precision of natural science, and the legal, political, religious, artistic or philosophical
in short, ideological forms in which men become conscious of conflict [in the economic basis] and
fight it out. KARL MARX, A CONTRIBUTION TO THE CRITIQUE OF POLITICAL ECONOMY (1970), cited
from HARVEY, supra note 6, at 197. Marx and Engels explicitly address the relationship between
production, urbanism, and justice when they state: The antagonism between town and country
begins with the transition from barbarism to civilization, from tribe to State, from locality to
nation, and runs through the whole history of civilization to the present day The existence of
the town implies, at the same time, the necessity of administration, police, taxes, etc.; in short, of
the municipality, and thus of politics in general. Here first becomes manifest the division of the
population into two great classes, which is directly based on the division of labour and on the
instruments of production. KARL MARX AND FRIEDRICH ENGELS, THE GERMAN IDEOLOGY (1970),
cited from HARVEY, supra note 6, at 204. For a fantastic detailed exposition of Marxist conceptual
frameworks to urbanism and the city (from where these excerpts have been borrowed), see David
Harvey, Urbanism and the City An Interpretive Essay, in HARVEY, supra note 6. In Socialism:
Utopian and Scientific, Engels sums up the Marxist critique of utopianism in the following
manner: The final causes of all social changes and political revolutions are to be sought, not in
mens brains, not in mans better insight into eternal truth and justice, but in changes in the
modes of production and exchange. FRIEDRICH ENGELS, SOCIALISM: UTOPIAN AND SCIENTIFIC,
(1935) cited from THE POLITICAL THEORY READER 115 (Paul Schumaker ed., 2010).
The third name in the trilogy of Marxist urban studies is that of the Spanish sociologist Manuel
Castells. While Castells views are not included explicitly in the analysis of this essay, the interested
reader is directed towards MANUEL CASTELLS, THE CITY AND THE GRASSROOTS: A CROSS-CULTURAL
THEORY OF URBAN SOCIAL MOVEMENTS (1983). Also, for more on Lefebvre, Harvey and Castells in
relation to the urban, see generally, IRA KATZNELSON, MARXISM AND THE CITY (1993).
Chris Butler, Reading the production of suburbia in post-war Australia, 9 LAW TEXT CULTURE
(2005). See also, CHRIS BUTLER, HENRI LEFEBVRE SPATIAL POLITICS, EVERYDAY LIFE AND THE RIGHT TO
THE CITY (2012); ANDY MERRIFIELD , HENRI L EFEBVRE A CRITICAL INTRODUCTION (2006).

[t]he progression of what might be called a revolution of space
(subsuming the urban revolution) cannot be conceived of other than
by analogy with the great peasant (agrarian) and industrial revolutions:
sudden uprisings followed by a hiatus, by a slow building of pressure,
and finally by a renewed revolutionary outburst at a higher level of
consciousness and action an outburst accompanied, too, by great
inventiveness and creativity ... The transformation of society
presupposes a collective ownership and management of space founded
on the permanent participation of the interested parties, with their
multiple, varied and even contradictory interests. It thus also
presupposes confrontation The creation (or production) of a planetwide space as the social foundation of a transformed everyday life
open to myriad possibilities such is the dawn now beginning to
break on the far horizon We are concerned with what might be
called a sense: an organ that perceives, a direction that may be
conceived, and a directly lived movement progressing toward the
horizon.20
For Lefebvre, the inter-relationships between space, urban consciousness, and
capitalist production can be glimpsed clearly by tracking the deliberately induced
transition from notions of to inhabit (in the Heideggerian sense) to the concept
of the habitat in the context of the city. Commenting on the developments in
France in the late 19th century, Lefebvre points out that:
[t]he Third Republic will insure its fortune, that is, its realization on
the ground. It will conceive the notion of habitat. Until then, to
inhabit meant to take part in social life, a community, village or city.
Urban life had, among other qualities, this attribute. It gave the right
to inhabit, it allowed townsmen-citizens to inhabit.21
However, with the transition to the concept of habitat:
[s]ociety orients itself ideologically and practically towards other
problems than that of production. Little by little social consciousness
ceased to refer to production and to focus on everyday life and
20
21
LEFEBVRE, supra note 5, at 419-423.

See LEFEBVRE, Industrialization and Urbanization, in WRITINGS
ON
CITIES, supra note 9, at 76.
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consumption. With suburbanization a process is set into motion

which decentres the city. Isolated from the city, the proletariat will
end its sense of the oeuvre. Isolated from places of production, available
from a sector of habitation for scattered firms, the proletariat will
allow its creative capacity to diminish in its conscience. Urban
consciousness will vanish.22
In Urbanism and the City An Interpretive Essay, Harvey, drawing on some of
Polanyis conceptual framework, proposes that:
[c]ities are built forms created out of the mobilization, extraction and
geographic concentration of significant quantities of the socially
designated surplus product Urbanism is a patterning of individual
activity which, when aggregated, forms a mode of economic and social
integration capable of mobilizing, extracting and concentrating
significant quantities of the socially designated surplus product A
distinction must be made between an alienated surplus fashioned out
of alienated labour and the unalienated form which the surplus can
assume in certain societies Wherever urbanism is manifest, the only
legitimate explanation of it lies in an analysis of the processes which
create, mobilize, concentrate and manipulate that social surplus
product.23
In a classic article published in 1989, Harvey points out that urban governance in
advanced capitalistic countries has reoriented and transformed from a managerial
approach typical of the 1960s (that primarily focused on the local provision of
services, facilities and benefits to urban populations) to an entrepreneurial
approach starting in the 1970s (that typically rests on a public-private partnership
focussing on investment and economic development).24 Noting that [u]rban
entrepreneurialism consequently contributes to increasing disparities in wealth
22
23
24
LEFEBVRE, Industrialization and Urbanization, in WRITINGS ON CITIES, supra note 9, at 77.

HARVEY, Urbanism and the City An Interpretive Essay, in SOCIAL JUSTICE AND THE CITY, supra
note 6, at 238-240. See generally, Karl POLANYI, PRIMITIVE, ARCHAIC AND MODERN ECONOMIES:
ESSAYS OF KARL POLANYI (G. Dalton ed., 1968).
D AVID HARVEY, From Managerialism to Entrepreneurialism: The Transformation in Urban
Governance in Late Capitalism, 71(1) GEOGRAFISKA ANNALER, SERIES B, HUMAN GEOGRAPHY 3-17
(1989).
and income as well as to the increase in urban impoverishment, Harvey concludes

by reiterating that:
a critical perspective on urban entrepreneurialism indicates not only
its negative impacts but its potentiality for transformation into a
progressive urban corporatism, armed with a keen geopolitical sense
of how to build alliances and linkages across space in such a way as to
mitigate if not challenge the hegemonic dynamic of capitalist
accumulation to dominate the historical geography of social life.25
More recently, in Rebel Cities, Harvey, paying homage to Lefebvre, reminds us
that the question of what kind of city we want cannot be divorced from the
question of what kind of people we want to be, what kinds of social relations we
seek, what relations to nature we cherish, what style of life we desire, what aesthetic
values we hold and that the right to the city is
... far more than a right of individual or group access to the resources
that the city embodies: it is a right to change and reinvent the city
more after our hearts desire The freedom to make and remake
ourselves and our cities is one of the most precious yet most neglected
of our human rights.26
Finally, and most recently, in Seventeen Contradictions and the End of Capitalism,
Harvey, drawing on Franz Fanons revolutionary humanism, reminds us that
what Marx makes so clear in Capital is the daily violence constituted in the
domination of capital over labour in the marketplace and in the act of production
as well as on the terrain of daily life and
... the violent and unpredictable eruptions that are occurring all around
the world on an episodic basis (from Turkey and Egypt to Brazil and
25
26
Id., at 12, 16.

HARVEY, supra note 9, at 4. Harveys words evoke urban sociologist Robert Parks description of
a city as mans most imposing creation, the most prodigious of human artifacts as the
workshops of civilized man. See, R.E. PARK ET AL, THE CITY 133 (1925).
10
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Sweden in 2013 alone) look more and more like the prior tremors for
a coming earthquake that will make the post-colonial revolutionary
struggles of the 1960s look like childs play. If there is an end to
capital, then this is surely from where it will come and its immediate
consequences are unlikely to prove happy for anyone.27
It is evident that our cities have become strategically crucial arenas in which
neoliberal forms of creative destruction have been unfolding and where myriad,
often interstitial counter-responses have been recently surfacing. A careful analysis
of the urbanisation of neoliberalism and of the link between neoliberalisation,
urban policy and injustice in the [Indian] city is urgently required.28 As Peck,
Theodore, and Brenner perceptively point out, the
...institutional landscape of neoliberal urbanism is consequently a
churning, dynamic one, the continued turbulence of which is reflective
of neoliberalisms contradictory creativity its capacity to repeatedly
respond to endemic failures of policy design and implementation
through a range of crisis-displacing strategies, fast-policy adjustments,
and experimental reforms One of the keys to the transcendence of
neoliberalism is, therefore, the construction of new forms of urban
solidarism, between as well as within cities.29
Identifying a systematic transformation in the pattern of land ownership in cities
which has serious implications for equity, democracy and rights, Saskia Sassen
points out that the
27
28
29
DAVID HARVEY, SEVENTEEN CONTRADICTIONS AND THE END OF CAPITALISM 166-167 (2014).
See, Marianne Morange and Sylvie Fol, City, Neoliberalisation and Justice, SPATIAL JUSTICE, (June
6, 2014), http://www.jssj.org and sources cited therein. See also, Neil Brenner and Nick Theodore,
Cities and the Geographies of Actually Existing Neoliberalism, 34(3), ANTIPODE 349-379 (2002);
SPACES OF NEOLIBERALISM URBAN RESTRUCTURING IN NORTH AMERICA AND WESTERN EUROPE
(Neil Brenner and Nick Theodore eds., 2002); CONTESTING NEOLIBERALISM: URBAN FRONTIERS
(Helga Leitner et al eds., 2007). See also, Janaki Nair, Is there an Indian Urbanism, in ECOLOGIES
OF URBANISM IN INDIA: METROPOLITAN CIVILITY AND SUSTAINABILITY (Anne M. Rademacher and K.
Sivaramakrishnan eds., 2013); WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING
GLOBAL (Ananya Roy and Aihwa Ong eds., 2011); INSIDE THE TRANSFORMING URBAN ASIA:
PROCESSES, POLICIES AND PUBLIC ACTIONS (Darshini Mahadevia ed., 2008); THE URBAN POOR IN
GLOBALISING INDIA: DISPOSSESSION AND MARGINALISATION (Lalit Batra ed., 2007).
Jamie Peck et al, Neoliberal Urbanism: Models, Moments, Mutations, 29 SAIS REVIEW 49, 64-65
(2009).
11

... trend is to move from small properties embedded in city areas,
crisscrossed by streets and small public squares, to projects that absorb
much of this tissue of public space These cities, whether in the
global North or South, have become a strategic frontier zone for
global corporate capital This emergent frontier-space at the heart
of major global cities arises in a context of increasingly hardwired
borderings inside cities and across cities.30
For Sasken, under these interstitial conditions, the work of making the public
and the political in urban space becomes even more critical These are new
hybrid bases from which to act, spaces where the powerless can make history
even when they are not empowered.31 Occupying urban public space goes to the
heart of spatial justice insofar as it raises the cry and the demand of the right to
the city and a transformed and renewed right to urban life.32
Ashis Nandy reminds us that the predicament of the imagined city in postcolonial
South Asia is direr:
[t]his dream of the city usually comes with a cultivated forgetfulness
about the violent record of the last hundred years, a record which
shows the complicity of the secular city of citizenship, civility, and
civic virtues with a particularly ruthless form of self-indulgent,
unrestrained, asocial individualism The imagined city in South Asia
symbolizes the belated attempts of defeated civilizations to break into
the hard realism of the world of winners where, to stretch the
metaphor of Ivan Illich, specialist skills in hydrology and water
30
31
32
Saskia Sassen, Who Owns the City, in GOVERNING URBAN FUTURES 6 8 (Ricky Burdett et al. eds.,
2014). For a detailed analysis of a similar thrust in land ownership in Bangalore, India with and
through state-promoted digitization of land records, see Solomon Benjamin, Inclusive or Contested:
Conceptualising a Globalised Bangalore, in INSIDE THE TRANSFORMING URBAN ASIA: PROCESSES,
POLICIES AND PUBLIC ACTIONS, supra note 28, at 170-193.
Sassen, supra note 30, at 8.
Lefebvre, Right to the City, in WRITINGS ON CITIES, supra note 9, at 158. See also, Tayyab
Mahmud, Surplus Humanity and the Margins of Legality: Slums, Slumdogs, and Accumulation
by Dispossession, 14 CHAP. L. REV. 1-73 (2010-2011); ANDY MERRIFIELD, THE POLITICS OF THE
ENCOUNTER URBAN THEORY AND PROTEST UNDER PLANETARY URBANIZATION (2013).
12
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management transform the waters of dream into a scarce commodity

called H2O.33
Similarly, Sudipta Kavirajs analysis of the four stages of evolution of public/
pablik parks in Calcutta from colonial to present times (focusing on Deshapriya
Park in south Calcutta) demonstrates how the life of parks, squares, streets, etc.
in postcolonial cities of India has much more to tell us than the simple binaries of
public/private, inside/outside or planned/unplanned would indicate as
forthcoming.34 The late Charles Correas reminder that we must improve
fundamentally the governance of our cities for in the final analysis, they will
decide the future of this nation is worth paying heed to.35
Writing somewhat optimistically for this very journal ten years ago, Shail Mayaram
notes the possibilities of interstitial spatial justice for the subaltern/marginal slum
dweller, migrant worker, street vendor, rickshaw puller etc. in the Indian megacity
when she points out that:
[m]egapolises are universes of a certain Dostoyevskian darkness in
which alcoholism is rampant, as also domestic violence. But there are
also flashes of joyfulness, of life A subaltern cosmopolitanism
emerges then if only in occasional flashes and in unnoticed and
surreptitious creativities if this century is going to be an Asian
century it is going to be built with the hands and the labour of this
33
34
35
ASHIS NANDY, AN AMBIGUOUS JOURNEY TO THE CITY THE VILLAGE AND OTHER ODD RUINS OF SELF
IN THE INDIAN IMAGINATION (2001). For attempts to map the urban postcolonial consciousness of
cities in India, see THE OXFORD ANTHOLOGY OF THE MODERN INDIAN CITY (Vinay Lal ed., 2013);
SARAI READER 2002: THE CITIES OF EVERYDAY LIFE, supra note 7; ECOLOGIES OF URBANISM IN INDIA:
METROPOLITAN CIVILITY AND SUSTAINABILITY, supra note 28; RASHMI VARMA, THE POSTCOLONIAL
CITY AND ITS SUBJECTS: LONDON, NAIROBI, BOMBAY (2012); WORLDING CITIES: ASIAN EXPERIMENTS
AND THE ART OF BEING GLOBAl, supra note 28. See generally, DIPESH CHAKRABARTY, PROVINCIALIZING
EUROPE: POSTCOLONIAL THOUGHT AND HISTORICAL DIFFERENCE (2000); GAYATRI CHAKRABORTY
SPIVAK, A CRITIQUE OF POSTCOLONIAL REASON: TOWARD A HISTORY OF THE VANISHING PRESENT (1999).
Kaviraj, supra note 8.
See, Charles Correa, Accountability and Governance, in GOVERNING URBAN FUTURES 41 (Ricky
Burdett et al eds., 2014). See also, Arvind Panagariya, Spaces, Services and the State 39-40; Isher
Judge Ahluwalia, Building Capacity 40-41; D. Asher Ghertner, Uncertain State(s) 46-47, all in
GOVERNING URBAN FUTURES (Ricky Burdett et al eds., 2014).See also, Darshini Mahadevia, Urban
Poverty in India and Post-MDG Framework, in OXFAM INDIA WORKING PAPER SERIES (2013). See
generally, Urbanization, CENTRE FOR POLICY RESEARCH, http://www.cprindia.org/urban.
13

presence that cities regard as unaesthetic and prefer to relegate to
their margins, this unauthorized migration that veers on the border
of legality and illegality But this is, in fact, the vital city. A city
that is vital to the life of the city; burdened by despair and hopelessness
but despite this the sites also of veer and vitality.36
Ananya Roy concludes her theorization of postcolonial urbanization with a
similarly optimistic acknowledgment of the interstitial, of the current moment
of interruption that makes possible an imagining of multiple Asian futures.37
Partha Chatterjee is somewhat less optimistic, worrying about the capacity of
unselfconscious local practice to beat back the formidable challenges posed by the
material as well as the imaginative forces of the new regime of globality. In Are
Indian Cities becoming Bourgeois at Last? he captures the conundrum with
characteristic clarity: If democracy has indeed taken root in Indias cities, will
political society provide the instruments for negotiating a controlled transition
to a new urban regime, or will it explode into anarchic resistance?38 Lalit Batras
careful evaluation of urban policy and urban reforms in neoliberal India suggests
that David Harveys accumulation by dispossession privatization of public
assets, enclosure and privatization of urban commons including land, monetization
of not yet formally monetized realms of existence is the order of the day for
India and its cities.39
Postcolonial geographies, as Jane Jacobs reminds us, have replaced the security
of the maps of the past with the uncertainty of touring the unsettled spatialities of
power and identity in the present.40 As Marshall Berman and Mike Davis
36
37
38
39
40
Shail Mayaram, Of Marginality: Poverty, Migration and Memory in the Megacity, 1 SOCIO-LEGAL
REV. 1, 9-10 (2005).
Ananya Roy, Conclusion to WORLDING CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL,
supra note 28, at 332.
Partha Chatterjee, Are Indian Cities Becoming Bourgeois At Last?, in THE POLITICS OF THE
GOVERNED 145 (2004). See generally, ANDY MERRIFIELD, THE NEW URBAN QUESTION (2014); Solly
Benjamin, Occupancy Urbanism: Radicalizing Politics and Economy beyond Policy and Programs,
32(3) INTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 719-729 (2008).
Lalit Batra, A Review of Urbanisation and Urban Policy in Post-Independent India, CENTRE FOR
THE STUDY OF LAW AND GOVERNANCE, WORKING PAPER NO. CSLG/WP/12 (2009). On this point,
see also Mahmud, supra note 32; Usha Ramanathan, Illegality and the Urban Poor, 41 ECONOMIC
& POLITICAL WEEKLY 3193-3197 (2006).
JANE M. JACOBS, EDGE OF EMPIRE POSTCOLONIALISM AND THE CITY 163 (2002).
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persuasively remind us, the politicisation of the streets has been and will be a key
component of our experience of modernity and for excavating the future.41
Street vending a phenomenon as ancient as urban settlement itself represents
in many ways the modest (and less belligerently confrontational, less irruptive)
forerunner to the occupy movements that grip our cities today: [v]ending can
be seen as a private taking of public space.42 As India ushers in an era of foreign
investment in retail trade, a critical examination of the context of street vending
in India enables an appreciation of other theoretical issues concerning culture,
citizenship, commodification, consumption, public space, social movements, and
constitutional fairness.43
THE STREET
Streets, markets, highways, parks, lakes, public libraries, and other urban common
property resources are highly contested spaces for various end uses within particular
time-frames. A citys urban plan, built form, collective and individual moral
outlook, laws, and norms effectively prioritise some claims while de-legitimating
others through complex clusters of adjudication mechanisms and legal iteration/
regulation. Streets affect culture and are affected by cultures. They constitute
modernities and are constituted by modernities. Richard Sennetts work
persuasively describes how the changing design of our cities (from heterogeneous
and disorderly to homogeneous and ordered; from public, democratic and
generative spaces to privatised, orchestrated and dead spaces) affects our public
41
42
43
See, MARSHALL BERMAN, ALL THAT IS SOLID MELTS INTO AIR: THE EXPERIENCE OF MODERNITY (1988);
MIKE DAVIS, CITY OF QUARTZ: EXCAVATING THE FUTURE IN LOS ANGELES (1990).
See, Call for Papers Contesting the Streets II: Vending and Public Spaces in Global Cities,
UNIVERSITY OF SOUTHERN CALIFORNIA, (October 2-3, 2015), http://slab.today/2015/02/call-forpapers-symposium-october-2-3-2015.
[S]treet vending as a lens through which to explore several theoretical issues: 1) the ways in
which culture-power-difference are mutually shaped and reconfigured in the public sphere; 2)
how shifting from political-economy analyses to cultural politics analysis within the context of
governance yields insights into activism and emerging conceptualizations of public space and
citizenship; 3) the questioning of commodified cultural identities that go beyond simple touristic
consumption practices; and 4) a clearer understanding how street vendors participate in social
movements that are part of larger transnational political and economic forces. See, Street
Economies, Politics, and Social Movements in the Urban Global South, ADVANCED SEMINAR,
(March 1317, 2011), http://sarweb.org/?advanced_seminar_street_economies.
15

culture and collective urban life.44 Levy points out that while topography sets
the stage, dictates of law and cultural influences work together in creating the
form of a city The experience of a place is dictated by the design of both streets
and buildings.45 Spiro Kostos points out that [a]ccording to Fascist theory, straight
and wide avenues were indispensable. You could not reconcile tortuous, narrow
streets with active traffic and sufficient light and air The state responded to a
principle of public morality of which the state was the interpreter.46 Anne Vernez
Mouldon asserts that streets record and determine the history of city form more
than any other element of urban infrastructure, and it is evident that streets and
their particular social, political, cultural and economic settings can tell us a lot
about the dominant ideas, practices, and life-worlds at a particular time and place.47
Arjun Appadurai concurs, when he highlights the culture of streets in India: With
the possible exception of the railroad, streets capture more about India than any
other setting. On its streets, India eats, works, sleeps, moves, celebrates and
worships. The street is a stage that rarely sleeps.48
44
45
46
47
48
See, RICHARD SENNETT, FLESH AND STONE: THE BODY AND THE CITY IN WESTERN CIVILIZATION
(1994); RICHARD SENNETT, THE CONSCIENCE OF THE EYE: THE DESIGN AND SOCIAL LIFE OF CITIES
(1991); RICHARD SENNETT, THE FALL OF PUBLIC MAN (1977); RICHARD SENNETT, THE USES OF
DISORDER: PERSONAL IDENTITY AND CITY LIFE (1970).
See, Richard M. Levy, The Visualisation of the Street Computer Modelling and Urban Design,
in IMAGES OF THE STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, 58, 59 (Nicholas
Fyfe ed., 1998). See also, KEVIN LYNCH, GOOD CITY FORM (1984).
Spiro Kostof, THE THIRD ROME: 1870-1950: TRAFFIC AND GLORY (1973), as cited in David Atkinson,
Totalitarianism and the Street in Fascist Rome, in IMAGES OF THE STREET PLANNING, IDENTITY
AND CONTROL IN P UBLIC SPACE, supra note 45, at 12, 20.
See, PUBLIC STREETS FOR PUBLIC USE, 13 (Anne Vernez Moudon ed., 1987). On streets and cities,
see generally, KEVIN LYNCH, THE IMAGE OF THE CITY (1960); JANE JACOBS, THE DEATH AND LIFE OF
GREAT AMERICAN CITIES (1961); BERNARD RUDOFSKY, STREETS FOR PEOPLE: A PRIMER FOR AMERICANS
(1969); ON STREETS (Stanford Anderson ed., 1978); DONALD APPLEYARD, LIVABLE STREETS (1981);
PETER JUKES, A SHOUT IN THE STREET AN EXCURSION INTO THE MODERN CITY (1990); STREETS:
CRITICAL PERSPECTIVES ON PUBLIC SPACE (Zeynep elik, Diane Favro, & Richard Ingersoll eds.,
1994); IMAGES OF THE STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACEsupra note 45;
MITCHELL DUNEIER, SIDEWALK (1999); MICHAEL SOUTHWORTH & ERAN BEN-JOSEPH, STREETS AND
THE SHAPING OF TOWNS AND CITIES (2003); ANASTASIA LOUKAITOU-SIDERIS & RENIA EHRENFEUCHT,
SIDEWALKS CONFLICT AND NEGOTIATION OVER PUBLIC SPACE (2010); VIKAS MEHTA, THE STREET: A
QUINTESSENTIAL SOCIAL PUBLIC SPACE (2013); SHARON ZUKIN, PHILIP KASINITZ & XIANGMING CHEN,
GLOBAL CITIES, LOCAL STREETS: EVERYDAY DIVERSITY FROM NEW YORK TO SHANGHAI (2015).
Arjun Appadurai, Street Culture, 8(1) THE INDIA MAGAZINE 12, 12 (1987).
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While Roland Barthes reminds us of the eroticism of the city insofar as it is the
place of our meeting with the other,49 David Crouch elaborates that:
streets are themselves sites of cultural practice, and part of our
knowledge of the city because they link sites of activity, of cultural
practice, make escape possible and are a step to somewhere else, and
someone else. They connect all sorts of sites of everyday cultural life,
both spectacular and humble. People meet in the street, and they can
avoid engagement in the street.50
The linkages between social processes and the spatial form of the street have been
explored with exceptional brilliance in the writings of Jane Jacobs,51 Michel de
Certeau,52 Le Corbusier,53 and Walter Benjamin.54 A short but insightful essay by
the late Heinz Paetzold usefully indicates how Jacobs (through reclaiming the
sidewalks along the streets for urban culture and through urging for mixed uses
of urban areas), de Certeau (through a conceptualisation of walking in the city as
a post-functionalist signification of the streets), and Benjamin (whose flnerie,
similar to de Certeaus walking/strolling, destabilizes the functionalist and
structuralist discourse of the street and the city) each in their own unique
way, provide critiques of the functionalist urban design championed by Le
Corbusier, which amongst other things, conceived of streets primarily as machines
for traffic and openly applauded the Haussmannisation of everywhere. 55
Joesph D. Lewandowski argues that Benjamins dialectical urbanism is unique
given that it illuminates how the modern city can be both an administratively
49
50
51
52
53
54
55
Roland Barthes, Semiology and the Urban, in RETHINKING ARCHITECTURE: A READER IN CULTURAL
THEORY 166-172 (Neil Leach ed., 1997).
David Crouch, The Street in the Making of Popular Geographical Knowledge, in IMAGES OF THE
STREET PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 158.
See, JACOBS, supra note 47.
See, MICHEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans. 1984).
Le Corbusier, New York is Not a Completed City, reprinted in METROPOLIS: CENTRE AND SYMBOL
OF OUR TIMES 98-110 (Philip Kasinitz ed., 1995); LE CORBUSIER, THE RADIANT C ITY (Pamela
Knight, Eleanor Levieux, & Derek Coltman trans., 1967); LE CORBUSIER, THE ATHENS CHARTER
(Anthony Eardley trans., 1973).
See, Walter Benjamin, Paris: Capital of the Nineteenth Century,reprinted in METROPOLIS: CENTRE
AND SYMBOL OF OUR TIMES 46-57 (Philip Kasinitz ed., 1995); WALTER BENJAMIN, T HE A RCADES
PROJECT, (Howard Eileen and Kevin McLaughlin trans., 1999).
Heinz Paetzold, The Aesthetics of City Strolling, 11 CONTEMPORARY AESTHETICS (2013), http://
www.contempaesthetics.org/newvolume/pages/article.php?articleID=666. See also, JAMES
HOLSTON, THE MODERNIST CITY: AN ANTHROPOLOGICAL CRITIQUE OF BRASILIA (1989).
17

structured objective site or force-field of planned relations and a reflexively
structured subjective space of collective dwelling, improvising, appropriating,
dreaming, innovating, struggling and transforming.56 Benjamin, for example,
quotes Adolf Stahr and points out the Parisians technique of inhabiting their
streets:
Returning by the Rue Saint-Honore, we met with an eloquent
example of that Parisian street industry which can make use of
anything. Men were at work repairing the pavement and laying
pipeline, and, as a result in the middle of the street there was an area
which was blocked off but which was embanked and covered with
stones. On this spot street vendors had immediately installed
themselves, and five or six were selling writing implements and
notebooks, cutlery, lampshades, garters, embroidered collars, and all
sorts of trinkets. Even a dealer in second-hand goods had opened a
branch office here and was displaying on the stones his bric-a-brac of
old cups, plates, glasses, and so forth, so that business was profiting,
instead of suffering, from the brief disturbance. They are simply
wizards at making a virtue of necessity. Seventy years later, I had
the same experience at the corner of the Boulevard Saint-Germain
and the Boulevard Raspail. Parisians make the street an interior.57
56
57
Lewandowski points out that insofar as Benjamins dialectical urbanism suggests that the modern
city is also the site of the emergence of new and innovative forms of social/city life that have the
potential to transform their own structural context, it differs from the dominant quasifunctionalist German sociological discussions of urbanism and urbanisation (for example, the
work of Friedrich Engels and Georg Simmels explain urbanism as the liquidation of collective
ways of life under the imperatives of industrial capitalism) and the more recent analytic conceptions
of the agent as a free-floating, empirically disembedded actor whose rational discourse transcends
the location in which it is situated (for example, the work of Jurgen Habermas stresses on
context-transcendent norms of validity claims). See, Joseph D. Lewandowski, Street culture the
dialectic of urbanism in Walter Benjamins Passagen-werk, 31(3) PHILOSOPHY AND SOCIAL CRITICISM
293-308 (2005).
WALTER BENJAMIN, THE ARCADES PROJECT, 421 (Howard Eileen and Kevin McLaughlin trans.,
1999). The original source referenced by Benjamin is Adolf Stahr, 1 NACH FNF JAHREN: PARISER
STUDIEN AUS DEM JAHRE 1855 (1857). The quoted extract highlights how entrepreneurial vision,
confidence in improvisational abilities, and the mobile nature of some street vendors created a
profitable economic opportunity that the city administrators of Paris had probably not anticipated
in their cadastral mapping of the city and their planning of its boulevards, public parks, shopping
areas, etc. It also suggests that despite careful spatial planning, context-specific enterprise and
necessity will often determine what happens at a particular time in a particular street within a
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(emphasis supplied)
Ravi Kalia has pointed out how Corbusiers vision directly propelled an ambitious
Indian socio-urban experiment that included, along with an innovative master
plan, modernist buildings, new landuse patterns, provisions for education,
recreation, medical and social services, the careful and deliberate inclusion of ideas
that had their origin in a culture far removed from her own.58 While this ambitious
experiment continues today in every major Indian city, urban interstices on streets
in India offer alternative imaginaries. The collection of essays published in Seminar
magazine in August 2012 as Streetscapes: a Symposium on the Future of the
Street brings to light numerous developmental contexts (transport, infrastructure
development, street vending, waste management, eviction, urban public art, etc.),
and contested urban meanings (city beautification, urban improvement, master
planning, good street design, street culture, etc.) that any serious discussion of the
street in India must be attentive to. Posing the problem of the future of the street,
Curt Gambetta and Ritajyoti Bandyopadhyay note that current popular and
critical imagination is coloured by a sense of the impending obsolescence of the
street as a conduit of social life. The visible effects of recent (neoliberal) urban
transformation seem to confirm this, where
[i]nfrastructure bends to accept an exploding population of single
occupancy vehicles: flyovers and thoroughfares provide ground for
unceasing circulation, insulating the movement of vehicles from the
discontinuous ebb and flow of street congestion. Retail and leisure
are drawn in from the street and subject to new forms of ownership,
58
modern city. Finally, the above extract suggests that some urban practices are recurrent despite
technological, administrative and culture changes. The complex relationship between structure
and agency in a modern city - between the arcades (passages) and the dreams/dispositions/
embedded practices of agents who interiorize the arcades of Paris is prominently highlighted
throughout Benjamins The Arcades Project. The dialectic of spatial domination (through
administrative planning) and collaborative improvisational interiorization of urban spaces
(through practices such as dwelling, suffering, improvising, etc.) is what, in Benjamins account,
results in the emergence of a situated, empirico-structurally embedded, collective street life. These
evocative elements of street vending are explicated in greater detail further on in this essay.
See, Nehru, Le Corbusier and the Mapping of Modern (or Urban) India, (6th August 2014), http:/
/www.nehrumemorial.nic.in/en/news/320-nehru-le-corbusier-and-the-mapping-of-modern-orurban-india-6th-august-2014.html. See also, RAVI KALIA, CHANDIGARH: THE MAKING OF AN INDIAN
CITY (1999).
19

locating the social life of economic transaction inside closed interior
shops and malls, while street hawkers are organized into highly
regulated vending zones.GIS, CCTV and other technologies of
mapping and surveillance significantly reshape how the space of the
street is inhabited, regulated and contested.59
Arguing that street life is anything but a vestige of the past, Gambetta and
Bandyopadhyay propose
a debate about how the physical and social landscape of the street has
been transformed in response to new forms of urban management
and control allowing us to speculate on the present and future of
public space in India We propose a particular attention to everyday
enactments and translations of policies and governance within the
space of the street, as well as an appraisal of different ways in which
the social and cultural life of the street is transforming.60
In an essay titled Is there a culture of the Indian street?, Jonathan Shapiro Anjaria
reviews and categorises the writing on the Indian street into three discrete
categories:
[t]he first sees the street as a space of difference. These are writings by
non-Indians and Indians alike that whether as emblematic of the
exotic Orient (Kidambi 2007: 35), premature (Bose 1965), or
underdeveloped see streets seething with miscellaneous humanity
(Low 1907: 23), as deviations from modern ideals. The second group
sees streets and urban space as manifestations of power, arenas on
which forces of global capital and ideologies of neo-liberalism unfold
(Rajagopal 2001, Whitehead and More 2007 and Arabindoo 2010).
And finally the third perspective, what might be called a culturalist
59
Curt Gambetta & Ritajyoti Bandyopadhyay, The Problem, in STREETSCAPES: A SYMPOSIUM ON

(August 2012), http://www.india-seminar.com/2012/
636/636_the_problem.htm.
Id.
THE FUTURE OF THE STREET, 636 SEMINAR
60
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approach, frames Indian streetscapes in terms of their unique rhythms

and logic of practice (Appadurai 1987, Ahuja 1997, Edensor 1998 and
Mehta 2009).61
While concluding with how fantasies of other cities haunt everyday life in the
streets of Mumbai or New Delhi, Anjarias answer to the question posed in the
title of his essay suggests (following Kavirajs position on public space in India)
that the culture of the Indian street lies in its relationship to the project of
modernity, a contested terrain that consists of conflicts over how streets can be
used , efforts to discipline the public and infrastructural interventions (such
as skywalks and pedestrian fences) that ebb and flow, that remake streets as much
as streets remake them.62 Anjarias inspiration for the title Tim Edensors
fascinating essay The Culture of the Indian Street suggests that on the Indian
street the imaginative, improvisational predilections of the pedestrian are
stimulated into unexpected flights of fancy, and the passage through the street is
rhizomic rather than linear, which supports his general argument that the
heterotopic, flnerie-accommodating, and sensual-tactical Indian street can dissolve
hegemonic preconceptions and disrupt notions of smooth passage, unhindered
gazing, detached self-containment, convenience and antiseptic sterility so
entrenched in Western regimes of urban spatialisation.63 The manner in which
61
Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON
supra note 59, http://www.india-seminar.com/2012/636/
636_jonathan_s_anjaria.htm. The original sources referenced include PRASHANT KIDAMBI, THE
MAKING OF AN INDIAN METROPOLIS: COLONIAL GOVERNANCE AND PUBLIC CULTURE IN BOMBAY
1890-1920 (2007); Nirmal Kumar Bose, Calcutta: A Premature Metropolis, 213(3) SCIENTIFIC
AMERICAN 90-102 (1965); SIDNEY LOW, A VISION OF INDIA (1907); Arvind Rajagopal, The Violence
of Commodity Aesthetics: Hawkers, Demolition Raids, and a New Regime of Consumption,
19(3) SOCIAL TEXT 91-113 (2001); Judy Whitehead & Nitin More, Revanchism in Mumbai?
Political Economy of Rent Gaps and Urban Restructuring in a Global City, 42 ECONOMIC AND
POLITICAL WEEKLY 2428-2434 (23-29 June 2007); Pushpa Arabindoo, City of Sand: Stately ReImagination of Marina Beach in Chennai, 35(2) INTERNATIONAL JOURNAL OF URBAN AND REGIONAL
RESEARCH 379-401 (2010); Appadurai, supra note 48; SARAYU AHUJA, WHERE THE STREETS LEAD
(1997); Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET PLANNING,
IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 47, at 201-216; KAIWAN MEHTA, ALICE IN
BHULESHWAR: NAVIGATING A MUMBAI NEIGHBOURHOOD (2009).
Jonathan Shapiro Anjaria, Is there a culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON
THE F UTURE OF THE S TREET , supra note 59, http://www.india-seminar.com/2012/636/
636_jonathan_s_anjaria.htm.
Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET PLANNING, IDENTITY AND
CONTROL IN PUBLIC SPACE, supra note 45, at 208, 215.
THE FUTURE OF THE STREET ,
62
63
21

urban planning norms and law countenance and relate to this spatial, interstitial,
rhizomic and disruptive promise of the street in India undoubtedly deserves careful
attention.
The probabilistic demand paths of persons on city streets, and the highly variable
modes of private free enterprise and welfare state systems in responding to the
spatio-temporal variety of such demand, results in a significant amount of planning,
mapping and monitoring complexity.64 This also creates difficulty in iterating
and interpreting regulations (including legislations, rules, guidelines, directives,
notifications, departmental orders, etc.) and contracts, and introduces a certain
amount of uncertainty into adjudication of rival contentions as regards the
proposed or actual use of the common property in question.65 As Massey eloquently
puts it:
All attempts to institute horizons, to establish boundaries, to secure
the identity of places, can in this sense therefore be seen to be attempts
to stabilize the meaning of particular envelopes of space-time.66
Resisting such easy stabilization, the informal economy of street trade presents a
compelling challenge to standard assumptions implicit in economic decisionmaking, governmental policy and legal iteration. At the core of the uncertainty is
an ambiguous moral decision that involves recognising, as legitimate, the
satisfaction of certain rights arising from informal legal relations of street trade,
including, amongst others, the right to livelihood, the right to use of public
commons, the right to affordable essential goods, the right to safety, the right to
64
65
66
67
For a useful attempt to theorize this issue from a distribution perspective, see, David Harvey,
Social Processes and Spatial Form: The Redistribution of Real Income in an Urban System, in
SOCIAL JUSTICE AND THE CITY, supra note 6, at 50-95.
See, Nicole Stelle Garnett, Managing the Urban Commons, 160 U. PA. L. REV. 1995-2027 (201112) for a recent review of the literature on commons-space management in the context of urban
public spaces.
DOREEN MASSEY, SPACE, PLACE AND GENDER 5 (2001). See also, DOREEN MASSEY, FOR SPACE
(2005).
See generally, Ananya Roy, Urban Informality Toward an Epistemology of Planning, 71(2)
JOURNAL OF THE AMERICAN PLANNING ASSOCIATION 147-158 (2005).
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trade, and the right to dignity.67

The moral ambiguity usually arises due to competing claims of macro-level
economic efficiency and fairness, health, safety, security, aesthetic preference, city
planning, etc. that usually boil down to the question of whose city? and related
notions of spatial justice.68 The uncertainty often results from a sceptical
philosophical perspective or an intellectual laziness that posits the impossibility
of any city effectively planning for all possible private acts that might manifest on
common city resources. Ananya Roy identifies informality as a key feature of the
idiom of urban planning in India, which proceeds through systems of deregulation,
unmapping and exceptionalism, and therefore concludes that India cannot plan
its cities.69
Another major source of this uncertainty is deliberate, a consequence of the state
and city planners vision of legibility and simplification that directly affects any
attempt at simple text/map-based regulation, adjudication or resolution of nontext/map flesh and blood transactions on city commons. Marco Polos words
from Calvinos Invisible Cities express one facet of this social fact particularly
well: No one, wise Kublai, knows better than you that the city must never be
confused with the words that describe it.70 Once again, Masseys assertion that
space is a part of an ever-shifting social geometry of power and signification
helps clarify what is at play when we critically evaluate the categorisation or legal/
illegal or legitimate/illegitimate in the city and on its streets.71
Private acts that are socially valuable by direct intention such as philanthropic
initiatives for needy persons or the community as a whole seldom pose a major
moral, utilitarian, regulatory, or adjudicatory complexity. The question of whether
68
69
70
71
Susan S. Fainstein usefully explicates potentially conflicting values (equality, diversity, democracy)
and approaches (communicative model, new urbanism model, the just city model) that animate
debates in city planning. See, Susan S. Fainstein, Can We Make the Cities We Want,inTHE URBAN
MOMENT 249-272 (Sophie Body-Gendrot & Robert Beauregard eds., 1999); Susan S. Fainstein,
New Directions in Planning Theory, 35(4) URBAN AFFAIRS REVIEW 451-478 (2000). See also, Leo
Saldanha, Whose Streets, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note
59, http://www.india-seminar.com/2012/636/636_leo_f_saldanha.htm.
Ananya Roy, Why India Cannot Plan its Cities: Informality, Insurgence and the Idiom of
Urbanization, 8(1) PLANNING THEORY 76, 86 (2009).
ITALO CALVINO, INVISIBLE CITIES 611 (1974).
MASSEY, SPACE, PLACE AND GENDER, supra note 66, at 3.
23

and to what extent the public commons may be used for commercial or purely
private transactions is more nuanced and clarity on this aspect becomes critical
to creating and interpreting city laws, in shaping the normative attitudes of officials
and individual legal subjects, and in conditioning the use of discretion in balancing
competing interests for the greater good of the community. One of the primary
insights to be gained from Ellicksons erudite albeit problematic 1996 article
Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and
Public-Space Zoning is that the management of public spaces in cities is never a
simplistic issue of just supporting or opposing the interests of the poor.72 While
espousing a normative approach that a citys codes of conduct should be allowed
to vary spatially from street to street, from park to park, from sidewalk to
sidewalk and that destitute street users have not only rights, but also responsibilities
to behave themselves, Ellickson points out that most of the legal scholars who
have written on street misconduct have approached the topic from one of three
(overly narrow) angles: hyper-egalitarianism,73 free-speech libertarianism,74 and
criminal defence.75 Ellickson himself approaches the issue of street order as a problem
of land management (and not, predominantly, one of livelihood rights or free
speech or crime), argues for a system of zoning (informal or formal as appropriate
to the context) for public lands, and concludes with a lament about the excessive
federal constitutionalization of street law, which has inhibited US cities from
devising localized solutions to the management of downtown spaces.76 Ellicksons
account is problematic not least because it simply pays insufficient attention to
72
73
74
75
76
77
Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid

Rows, and Public-Space Zoning, 105 YALE L. J. 1165-1248 (1996).
Id., at 1171, 1172. On hyper-egalitarianism, for example, Ellickson refers to Allan C. Hutchison,
Les Misrables Redux: Law and the Poor, 2 S. CAL. INTERDISCIPLINARY L.J. 199-244 (1993).
Here, for example, Ellickson points out the analytical weaknesses of Helen Hershkoff and Adam
S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 HARV. L. REV. 896916 (1991).
Ellickson cites, amongst others, Caleb Foote, Vagrancy-Type Law and Its Administration, 104
U. PA. L. REV. 603-650 (1956); William O. Douglas, Vagrancy and Arrest on Suspicion, 70 YALE
L.J. 1-14 (1960).
A constitutional doctrine that compels a monolithic law of public spaces is as silly as one that
would compel a monolithic speed limit for all streets. See, Robert C. Ellickson, supra note 75, at
1247.
For a trenchant and persuasive critique of Ellicksons arguments, see, DON MITCHELL, RIGHT TO
THE CITY: SOCIAL JUSTICE AND THE FIGHT FOR PUBLIC SPACE (2003).
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the underlying causes of street destitution and the attendant problems of distributive
and spatial justice that these raise.77
The street is where the state that seeks legibility of all its citizens and each of their
transactions meets persistent resistance and insurmountable practical challenges in
realising its vision. James Scotts classic Seeing Like a State: How Certain Schemes
to Improve the Human Condition Have Failed analyses diverse failures in highmodern, authoritarian state planning collectivisation in Russia, the building of
Brasilia (in accordance with Le Corbusiers vision), compulsory ujamaa villages in
Tanzania, Lenins Russia, etc. and concludes that [c]ollectivized command
economies virtually everywhere have limped along thanks to the often desperate
improvisation of an informal economy wholly outside its schemata.78
In all modern cities, the nonconforming informal practice is an indispensable
condition for formal order. In all modern nation states, the economy is a subsystem
of a finite and nongrowing eco-system, whose carrying capacity and interactions
it must respect as a condition of its own persistence.79 This fragile, often invisibilised,
relationship between the street economy and the street (and city) eco-system suffers
when state activities and state officials insist on treating people on the streets
according to inadequately nuanced, high-modernism influenced schemata. The
economic plan, city plan, development plan, city map, survey map, zonal map,
record of ownership, kiosk license, market vending license, fixed cart license,
zone management plan, classification of religion or caste or ethnicity, arrest record,
map of political boundaries, etc. constitute the synoptic data that the state uses
for its miniaturised legibility and simplification schemata of the city streets. In
accord with Scotts critique of the governmental modernist gaze, Mayaram
concludes that [r]egimes of urban planning in India have been influenced, more
often than not, by the Le Corbusier approach.80 Relatedly, Prasad Shettys
78
79
80
JAMES SCOTT, SEEING LIKE A STATE: HOW CERTAIN SCHEMES TO IMPROVE THE HUMAN CONDITION
HAVE FAILED 351 (1998).
Herman E Daly, Policies for Sustainable Development, PAPER PRESENTED AT THE PROGRAM IN
AGRARIAN STUDIES, YALE UNIVERSITY, NEW HAVEN 4 (February 9, 1996), as cited in SCOTT, id.
Mayaram, supra note 36, at 8. See also, Le Corbusier, Towards a New Architecture, excerpted
in FROM MODERNISM TO POSTMODERNISM: AN ANTHOLOGY 200-211 (Lawrence E. Cahoone ed.,
1996).
25

delightful essay points out how even as cartographic and orthogonal logics shape
the official validation of urban form in Mumbai, the citys actual enterprise,
property relationships and urban life nonetheless resiliently get worked out in
blurry claims of multiple tenancies, sub-tenancy, squatting, customary rights,
temporary vending, and flnerie.81
While it does seem that urban planning in many Indian cities has been gripped by
a modernist seeing like the state mania,82 and this undoubtedly does raise some
serious concerns for spatial justice, socio-legal scholar Mariana Valverdes
exemplary work on the history of urban governance cautions us to three interrelated possibilities that might apply depending on the particular context under
analysis: 1) technologies of governance say, zoning ordinances are not married
to specific rationalities of governance or default politics, and therefore, legal
inventions such as zoning remain malleable rather than being hard-wired to social
exclusion agendas; 2) seeing like a city rather than Scotts seeing like a state
may be the more appropriate label to describe a pragmatic urban governance that
is capable of flexibly using a variety of legal and regulatory tools of quite
contradictory provenances and logics (for example, modern zoning-based
regulation and pre-modern nuisance-based regulation), and; 3) in some contexts,
community-level decision making, rather than centralized planning, will lead to
further inequality within an urban space.83 Valverdes cautionary and sometime
counter-intuitive notes should be kept in mind when analysing urban governance
in any particular spatial context within India.
The Indian street is part of a spatial complex that includes the bazaar and the
81
82
83
84
Prasad Shetty, Of Blurry Claims and Forms, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE
STREET, supra note 62, http://www.india-seminar.com/2012/636/636_prasad_shetty.htm.
See, Michael Goldman, Speculating on the Next World City, at 229-258;Ananya Roy, The Blockade
of the World-Class City: Dialectical Images of Indian Urbanism, at 259-278; and D. Asher
Ghertner, Rule by Aesthetics: World-Class City Making in Delhi, at 279-306, all in,WORLDING
CITIES: ASIAN EXPERIMENTS AND THE ART OF BEING GLOBAL, supra note 28. See also, Shruti
Ravindran, Is Indias 100 smart cities project a recipe for social apartheid, THE GUARDIAN, http:/
/www.theguardian.com/cities/2015/may/07/india-100-smart-cities-project-social-apartheid.
Mariana Valverde, Seeing like a City: The Dialectic of Modern and Premodern Ways of Seeing in
Urban Governance, 45 LAW & SOCIETY REVIEW 277-312, (2011); MARIANA VALVERDE, EVERYDAY
LAW ON THE STREET: CITY GOVERNANCE IN AN AGE OF DIVERSITY (2012).
Dipesh Chakrabarty, Open space/public space: garbage, modernity and India, 16 SOUTH ASIA
63-73 (1991), cited from Tim Edensor, The Culture of the Indian Street, in IMAGES OF THE STREET
PLANNING, IDENTITY AND CONTROL IN PUBLIC SPACE, supra note 45, at 201, 208.
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fair, which together constitute an unenclosed realm that provides a meeting point
of several communities in recent times, however, the thrills of the bazaar are
traded in for the conveniences of the sterile supermarket.84 The street in India is
where a marriage procession spontaneously celebrates a union. The street is where
the unlicensed street food vendor meets extreme police brutality as she returns
home after a long days work. The street is where public demonstrations, traffic
breakdowns, cycling critical mass demonstrations, carnivals, dinner-time shopping,
snack urges, traffic offences, festival celebrations,crimes, prostitution, religious
celebrations, tree-killing, public nationalisms, gang-rapes, and a whole host of
other infinitely varying activities create the component parts of the city street
ethos. Lamenting Bangalore citys plan to widen Avenue Road, Lata Mani points
out that:
[s]treets are life worlds. People in action, cultures in play. The street
is a theatre of contiguity, chance, conflict and conviviality. A delicate,
imprecise equilibrium Cold anonymity has not been a feature of
our urbanism It is people who have dynamised our streets Social
hierarchy and spatial proximity have accordingly been intrinsic features
of urban life Any conception of the global city that is at odds
with the prevailing nature of Indian urbanism is equally at odds with
its cultural substructure surely equivalent to destabilising the ground
beneath our feet.85
Sartres assertion that ideas cannot digest reality seems particularly true of the
city planners simplification of the street in most cities. This disjunction between
ideas and reality asserts its salient mischief through the violence that is enacted on
bodies, livelihoods and lives connected to the informal street economy or
ecosystem. Kropotkins conviction that we cannot legislate for the future
notwithstanding, it is possible to make a convincing case that planning for our
streets in our cities should espouse institutions that are powerfully shaped by
practical spatial knowledge and local customs, what James Scott describes as metis.
Such metis friendly institutions would be multi-functional, plastic, diverse, and
adaptable these institutions would embrace rather than ignore or fear the urban
interstice. Second, planning for our streets in our cities should recognise the
85
Lata Mani, Urban triptych, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra
note 59, http://www.india-seminar.com/2012/636/636_lata_mani.htm.
27

vocabulary, the grammar, the idiom, the logic, and the formulation of spatial
justice and the right to the city. Third, planning for our streets in our cities
should unabashedly celebrate the singular uniqueness of our postcolonial moment
and its attendant political forms, practices, and norms. Masseys concluding
comments from For Space remind us of the infinite possibilities of the interstitial
here-and-now:
Space is as much a challenge as is time. Neither space nor place can
provide a haven from the world. If time presents us with the
opportunities of change and (as some would see it) the terror of death,
then space presents us with the social in the widest sense: the challenge
of our constitutive interrelatedness and thus our collective
implication in the outcomes of that interrelatedness; the radical
contemporaneity of an ongoing multiplicity of others, human and
non-human; and the ongoing and ever-specific project of the practices
through which that sociability is to be configured.86
STREET VENDING
Street vendors and the mode of production and consumption that their livelihood
constitutes and represents - are ubiquitous in every city across the world today
precisely because the problem of production has not truly been solved. In
Mesoamerica, street commerce played a central role in the Aztec civilization and
Tenochtitlans central markets depended on complex networks that extended
throughout Mesoamerica.87 The celebrated French historian Fernand Braudel
was one of the first scholars to explicitly focus on the history of street vendors. In
his seminal work Civilization and Capitalism, 15th-18th Century, Braudel points
out that the sheer number of peddlers and the areas they covered meant that they
stimulated and maintained trade, and spread it over a distance in early modern
Europe.88 While pointing out that peddlers had a crucial influence on the
distribution of certain goods (for example, Bohemian glassware, almanacs and
86
87
88
89
MASSEY, FOR SPACE, supra note 66, at 105.

Veronica Crossa, Resisting the Entrepreneurial City: Street Vendors Struggle in Mexico Citys
Historic Center, 33(1) INTERNATIONAL JOURNAL OF URBAN AND REGIONAL RESEARCH 43, 51 (2009).
FERNAND BRAUDEL, 2 WHEELS OF COMMERCE: CIVILIZATION AND CAPITALISM, 15TH-18TH CENTURY
76 (2002).
Id., at 78-79.
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popular literature) to rural areas, Braudel highlights that many peddlers were
seasonal migrants.89 As correctly identified by Danielle van den Heuvel, Braudel
also highlights that early modern itinerant traders occupied a marginal position
in society, expressed both in their income levels and in their activities, which were
often on the fringes of legality.90 Heuvels scholarly chapter also points out that
it was the work of Olwen Hufton and Laurence Fontaine that first seriously
questioned the supposedly marginal position of itinerant traders,91 and additionally,
Fontaine had made the point that those sources that contain most information
about peddlers, such as legal and police records, only revealed the exceptional and
marginal and therefore thorough and imaginative methods were required to
reveal the true character of ambulant trading.92
While a proper history of street vending in ancient, early modern, and colonial
India is yet to be written, considerable scholarly references to early street vending
in India do exist. Amalendu Guha in the Cambridge Economic History of India,
for example, points out that there was only a small daily bazaar on a narrow
street in the Ahom capital of Garhgaon in the 1660s; and the only sellers who sat
therewere betel-leaf sellerswomen vendors, amongst others, brought headloads of various provisions for sale to Nazirahat, located outside the city gates.93
A fascinating chapter by Dirk H.A. Kolff on the market for mobile labour in
early modern North India concludes that mobile labour was characterised, above
all, by its many fluidities: occupational or vocational fluidities, fluidities of
90
91
92
Danielle van den Heuvel, Selling in the Shadows: Peddlers and Hawkers in Early Modern Europe,
in WORKING ON LABOR ESSAYS IN HONOR OF JAN LUCASSEN 125, 129 (Marcel van der Linden and
Leo Lucassen eds., 2012). Heuvel also identifies book history, migration history, and womens
history as three strands of history that did devote substantial attention to peddlers and other
itinerant traders in early modern Europe. Works cited include MARGARET SPUFFORD, SMALL
BOOKS AND PLEASANT HISTORIES: POPULAR FICTION AND ITS READERSHIP IN SEVENTEENTH-CENTURY
ENGLAND (1981); MARGARET SPUFFORD, THE GREAT RECLOTHING OF RURAL ENGLAND: PETTY
CHAPMEN AND THEIR WARES IN THE SEVENTEENTH CENTURY (1984); Leo Lucassen, A Blind Spot:
Migratory and Travelling Groups in Western European Historiography, 38 INTERNATIONAL REVIEW
OF SOCIAL HISTORY 209-235 (1993); ALICE CLARK, WORKING LIFE OF WOMEN IN THE SEVENTEENTH
CENTURY (1919); Merry Wiesner Wood, Paltry Peddlers or Essential Merchants? Women in the
Distributive Trades in Early Modern Germany, 12 SIXTEENTH CENTURY JOURNAL, 3-14 (1981).
OLWEN HUFTON, THE POOR OF EIGHTEENTH-CENTURY FRANCE (1974); LAURENCE FONTAINE, HISTORY
OF P EDLARS IN EUROPE (1996).
Heuvel, supra note 90, at 129, 130.
29

negotiated or renegotiated employment relationships, fluid multiple identities and
disguises, fluidities of state formation and of the agencies of brokers on the (military)
labour markets. To what extent these fluidities were preserved and perhaps
transformed when modernity and globalisation, both colonial and post-colonial,
turned Indias circulatory energies into external diasporas, is an intriguing
question.94
Focusing on more recent times (1850-1925), Patricia Acerbis excellent dissertation
thesis describes and analyses the transition from enslaved vendors to free vendors,
from ganhadores to ambulantes, in Rio de Janeiro, Brazil and concludes: the
process of Brazilian democratization always ongoing and never a finished product
must incorporate the logic of informality and understand the dialogic conditions
that create formality and informality, since it is how the majority of urban
Brazilians have come to understand justice and citizenship.95 In a more recent
piece, invoking both Lefebvre and Michel de Certeau, Acerbi states that [b]y
walking the city, street vendors adapted to new conditions and provided urban
inhabitants with basic needs, facilitating the circulation of goods in a city where
most people did not have easy access to stores, markets, and public transportation,
and concludes that in Rio de Janeiro today, street commerce continues to occupy
a contested liminal space between convenient necessity, inadequacy, and nuisance.96
93
94
95
96
97
Amalendu Guha, Appendix: The Medieval Economy of Assam, in CAMBRIDGE ECONOMIC HISTORY
OF INDIA, VOLUME 1, C.1200 C.1750, at 478, 489 (Tapan Raychaudhuri & Irfan Habib eds., 2004
reprint edition).
Dirk H.A. Kolff, The Market for Labour in Early Modern North India, in ROUTLEDGE HANDBOOK
OF THE SOUTH A SIAN DIASPORA 23, 30 (Joya Chatterji and David Washbrook eds., 2013).
Patricia Acerbi, Slave Legacies, Ambivalent Modernity: Street Commerce and the Transition
to Free Labor in Rio de Janeiro, 1850-1925, at 306-307 (2010) (unpublished dissertation,
University of Maryland), http://drum.lib.umd.edu/bitstream/1903/10899/1/Acerbi_umd_0117E_
11557.pdf.
Patricia Acerbi, A Long Poem of Walking : Flneurs, Vendors, and Chronicles of Post-abolition
Rio de Janeiro, 40(1) JOURNAL OF URBAN HISTORY 97, 111 (2014).
Keith Hart, Informal Income Opportunities and Urban Employment in Ghana, 11(1) JOURNAL
OF M ODERN A FRICAN STUDIES 61-89 (1973), which was initially presented at the Urban
Unemployment in Africa conference held at the Institute of Development Studies of the
University of Sussex in September 1971.
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In contrast to historical studies, street vending in contemporary contexts has been

widely studied ever since the presentation and publication of Keith Harts muchcited study on informal employment opportunities in Ghana.97 Street vending is
currently most prevalent in sub-Saharan Africa, where in several cities, street
vending ranges between 12 per cent and 24 per cent of the total urban informal
98
99
ILO-WIEGO, WOMEN AND MEN IN THE INFORMAL ECONOMY 2013: A S TATISTICAL PICTURE (2013),
cited from SALLY ROEVER, INFORMAL ECONOMY MONITORING STUDY SECTOR REPORT: STREET VENDORS
5 (2014).
While a detailed overview of the literature on the informal economy/sector/worker is not
possible here, the interested reader is guided to THE INFORMAL ECONOMY: STUDIES IN ADVANCED
AND L ESS D EVELOPED C OUNTRIES (Alejandro Portes, Manuel Castells, & Lauren Benton eds.,
1989); HERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE REVOLUTION IN THE THIRD WORLD
(1989); PHILIP HARDING AND RICHARD JENKINS, THE MYTH OF THE HIDDEN ECONOMY: TOWARDS A
NEW UNDERSTANDING OF INFORMAL ECONOMIC ACTIVITY (1989); JAN BREMAN, FOOTLOOSE LABOUR:
WORKING IN INDIAS INFORMAL ECONOMY (1996); THE UNORGANISED SECTOR: WORK SECURITY AND
SOCIAL PROTECTION (Renana Jhabvala & RKA Subrahmanya eds., 2001); ILO, WOMEN AND MEN
IN THE INFORMAL ECONOMY: A STATISTICAL PICTURE (2002); ILO, DECENT WORK AND THE INFORMAL
ECONOMY (2002); INFORMAL ECONOMY CENTRESTAGE: NEW STRUCTURES FOR EMPLOYMENT (Renana
Jhabvala, Ratna M. Sudarshan, & Jeemol Unni eds., 2003); RETHINKING INFORMALIZATION:
POVERTY, PRECARIOUS JOBS AND SOCIAL PROTECTION (Neema Kudva & Lourdes Beneria eds.,
2005); LINKING THE FORMAL AND INFORMAL ECONOMY CONCEPTS AND PRACTICES (Basudeb GuhaKhasnobis, Ravi Kanbur and Elinor Ostrom eds., 2006); NATIONAL COMMISSION FOR ENTERPRISES
IN THE UNORGANISED SECTOR, REPORT ON CONDITIONS OF WORK AND PROMOTION OF LIVELIHOODS
IN THE UNORGANISED SECTOR (2007); TRADE LIBERALIZATION AND INDIAS INFORMAL ECONOMY
(Barbara Harriss-White and Anushree Sinha eds., 2007); ureo De Paula & Jos J. Scheinkman,
The Informal Sector, NBER WORKING PAPER (2007); NATIONAL COMMISSION FOR ENTERPRISES IN
THE UNORGANISED SECTOR, REPORT ON DEFINITIONAL AND STATISTICAL ISSUES RELATING TO INFORMAL
ECONOMY (2008); Rafael La Porta and Andrei Shleifer, The Unofficial Economy and Economic
Development, BROOKINGS PAPERS ON ECONOMIC ACTIVITY (2008); MARC BACCHETTA, EKKEHARD
ERNST & JUANA P BUSTAMANTE, GLOBALIZATION AND INFORMAL JOBS IN DEVELOPING COUNTRIES
(2009); NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANISED SECTOR, THE CHALLENGE OF
EMPLOYMENT IN INDIA AN INFORMAL ECONOMY PERSPECTIVE (2009); IS INFORMAL NORMAL? TOWARDS
MORE AND BETTER JOBS IN DEVELOPING COUNTRIES (Johannes P. Jutting & Juan R. de Laiglesia eds.,
2009); SUGATA MARJIT & SAIBAL KAR, THE OUTSIDERS: ECONOMIC REFORMS AND INFORMAL LABOUR
IN A DEVELOPING E CONOMY (2011); Martha Alter Chen, The Informal Economy: Definitions,
Theories and Policies, WIEGO WORKING PAPER NO. 1 (August 2012); Jacques Charmes, The
Informal Economy Worldwide: Trends and Characteristics, 6(2) THE JOURNAL OF APPLIED
ECONOMIC RESEARCH 103-132 (2012); Ejaz Ghani, William R. Kerr, & Stephen D. OConnell,
The Exceptional Persistence of Indias Unorganized Sector, WORLD BANK POLICY RESEARCH WORKING
PAPER NO. 6454 (2013); Ravi Kanbur, Informality: Causes, Consequences and Policy Responses,
PAPER PREPARED FOR RESERVE BANK OF INDIA (2014). For recent work on the (successful) politics of
informal workers, see RINA AGARWALA, INFORMAL LABOR, FORMAL POLITICS, AND DIGNIFIED
DISCONTENT IN INDIA (2013).
31

employment.98 While the literature on the informal economy offers no ready
answers with regard to realising interstitial spatial justice or with regard to
fashioning urban modernity,99 a newer interdisciplinary literature, which Ryan
Thomas Devlin amongst others labels as informal urbanism, does approach these
spatial issues in a more direct and useful fashion.100 A survey of three edited
collections - the forthcoming Street Vending in the Neoliberal City: A
Global Perspective on the Practices and Policies of a Marginalized Economy (2015),
Street Vendors in the Global Urban Economy (2009) and Street Entrepreneurs:
People, place and politics in local and global perspective (2007) makes it
100 See, for example, JANICE PERLMAN, THE MYTH OF MARGINALITY: URBAN POVERTY AND POLITICS IN
RIO DE JANEIRO (1976); MICHEL LAGUERRE, THE INFORMAL CITY (1994); ASEF BAYAT, STREET POLITICS:
POOR PEOPLES MOVEMENTS IN IRAN (1997); CITIES AND CITIZENSHIP (James Holston ed., 1999);
Asef Bayat, From Dangerous Classes to Quiet Rebels: Politics of the Urban Subaltern in the Global
South, 15(3) INTERNATIONAL SOCIOLOGY 533-557 (2000); URBAN INFORMALITY TRANSNATIONAL
PERSPECTIVES FROM THE MIDDLE EAST, LATIN AMERICA, AND SOUTH ASIA (Ananya Roy & Nezar Al
Sayyad eds., 2003); Ananya Roy, Urban Informality Toward an Epistemology of Planning,
supra note 67; Judith E. Innes, Sarah Connick & David Booher, Informality as Planning Strategy:
Collaborative Water Management in the CALFED Bay-Delta Program, 73(2) JOURNAL OF THE
AMERICAN PLANNING ASSOCIATION 195-210 (2007), all of which have been cited from Ryan Thomas
Devlin, Informal Urbanism: Legal Ambiguity, Uncertainty, and the Management of Street
Vending in New York City (2010) (unpublished Ph.D. dissertation, University of California,
Berkeley). For more recent writing from this approach, see Ash Amin, Telescopic Urbanism,
17(4) CITY 476-492 (2013), and the collection of papers in Informal Urbanism, 37(1) B UILT
ENVIRONMENT (2014).
101 See STREET VENDING IN THE NEOLIBERAL CITY: A GLOBAL PERSPECTIVE ON THE PRACTICES AND
POLICIES OF A MARGINALIZED ECONOMY (Kristina Graaf & Noa Ha eds., forthcoming Sept. 2015);
STREET VENDORS IN THE GLOBAL URBAN ECONOMY (Sharit Bhowmik ed., 2009); STREET
ENTREPRENEURS: PEOPLE, PLACE AND POLITICS IN LOCAL AND GLOBAL PERSPECTIVE (John Cross and
Alfonso Morales eds., 2007).
102 Over the centuries and across the world, street vending has been practiced in many different
ways. Most vendors sell goods, but some sell services, and some sell a mixture of the two. Some
vendors are fixed in one location, using a kiosk or a heavy stall which remains in the same
location for months or even years and is locked up and left under the supervision of a watchman
when not in use. Others use heavy mobile stalls which are pushed from a storehouse into the
sales position at the beginning of the working day, and pushed back at the end. Still others are
fixed in location, but simply lay their merchandise out on the ground or on a sheet of cloth or
plastic. Truly mobile vendors may push stalls on wheels, carry their merchandise on their
persons, or operate a stall off a cart, a tricycle, or a motor vehicle. Some mobile vendors sell to
passers-by, some do door-to-door delivery, and still others hawk from building to building.
Street vending may be practiced full-time, part-time, seasonally or occasionally. It can be fixed,
occasionally mobile, or almost continuously mobile, and it can go on at any or all times of the day
and night. The firms involved can range from one-person micro-enterprises, through numerous
forms of partnership and family business, up to franchisees, pieceworkers and wageworkers of
larger off-street businesses. Some street vendors are branch operations of off-street stores,
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evident that urban street vending is a highly contested global phenomenon with
no easy one-size-fits-all answers.101 Street vending varies greatly in scale, timing,
location, remuneration; it varies in terms of workforce, and types of goods and
services.102
The historian Danielle van den Heuvel usefully surveys the relevant literature (on
contemporary street vending) and highlights central propositions on the
characteristics of street vending, its origins and determinant causes, and finally, its
effects on participants and the economy.103 On street vending and the actors
involved in the contemporary contexts of developing economies: 1) most scholars
identify street vendors as relatively poor urban dwellers who are often, but not
always, new to the cities they live in, and in many cases the majority of the street
traders are women (though for most Indian cities, male vendors far outnumber
women vendors);104 2) the enterprises of street vendors are often small familybased operations and;105 3) most street vendors operate in the shadows of the
official economy, are unlicensed and pay no, or very little, taxes.106 Further, Heuvel
points out that the rise and persistence of informal street selling have been explained
by social scientists on the basis of a number of different factors including rapid
103
104
105
106
sometimes right outside the store, at other times some distance away. Other street vendors
create their own branch operations, dividing their merchandise and sending some of it with a
relative, partner or employee to sell at another location Most street operations are much
smaller in scale than fixed stores or supermarkets in off-street locations, but a few are quite
substantial, ranging from truck-borne mobile stores, to big fixed stalls and kiosks in strategic
high-demand locations. The income distribution of street vendors is highly skewed, with a few
making quite high incomes, comparable to those of successful storekeepers and career professionals,
and most making relatively low incomes, comparable to those of unskilled manual laborers. See
Ray Bromley, Street Vending and Public Policy: A Global Review, 20 (1/2) INTERNATIONAL
JOURNAL OF SOCIOLOGY AND SOCIAL POLICY 1, 2-3 (2000).
Heuvel, supra note 90, at 134-137.
Sources cited include TERENCE GARY MCGEE & YUE-MAN YEUNG, HAWKERS IN SOUTHEAST ASIAN
CITIES: PLANNING FOR THE BAZAAR ECONOMY (1977); NARUMOL NIRATHRON, FIGHTING POVERTY
FROM THE STREET A S URVEY OF STREET FOOD VENDORS IN BANGKOK (2006); Sally Christine
Roever, Negotiating Formality: Informal Sector, Market and State in Peru (2005) (unpublished
Ph.D. dissertation, University of California at Berkeley); Jacques Charmes, GENDER AND INFORMAL
SECTOR IN THE WORLDS WOMEN 2000: TRENDS AND STATISTICS (1999).
Sources cited include TERENCE GARY MCGEE & YUE-MAN YEUNG, id. and Sally Christine Roever,
id.
Sources cited include DE SOTO, supra note 99; Martha Alter Chen, Rethinking the Informal
Economy: Linkages with the Formal Economy and the Formal Regulatory Environment, in
LINKING THE FORMAL AND INFORMAL ECONOMY CONCEPTS AND PRACTICES, supra note 99, at 75-92;
Bromley, supra note 102.
33

urbanization, large waves of internal migration, processes of modernization,
industrialization and bureaucratization, the role of micro-economic factors such
as increased demand for prepared food to be readily available on the streets or the
attraction of the flexibilities of street vending as an occupation, particularly for
female vendors, etc.107 Finally, Heuvel points out that the question what effect
informal street vending has on the people involved and on the wider economy
has proved even more difficult to answer than why street selling is such an
important feature in the cities of many developing economies, and views on the
issue range from very positive (regarding it as a way for marginal groups to make
a living and eventually to enter the formal sector) to very negative (seeing it as a
dead end, jobs with no protection, very little income and opportunities).108 Sally
Roever synoptically surveys the literature documenting this ambivalence to street
vending and states:
displacements have been documented from Mexico City to Delhi,
Harare to Istanbul, Maseru to Hanoi (Crossa 2009; Dupont 2011;
Skinner 2010; z and Eder 2012; Setsabi 2006; Turner and
Schoenberger 2011)..alternative models that consider vendors in
natural markets as an essential component of local economies and
107 Sources referenced here include DE SOTO, supra note 99; Lourdes Beneria & Maria Floro,
Distribution, Gender, and Labour Market Informalization: A Conceptual Framework with a
Focus on Homeworkers, in RETHINKING INFORMALIZATION: POVERTY, PRECARIOUS JOBS AND SOCIAL
PROTECTION, supra note 99, at 9-27; Chen, id.; John C. Cross, Street Vendors, Modernity and
Postmodernity: Conflict and Compromise in the Global Economy, 20(1/2) INTERNATIONAL JOURNAL
OF S OCIOLOGY AND S OCIAL POLICY , supra note 102, at 29-51; Leo Lucassen, To Move or Not to
Move - A Global Review of Migration to the City Since the 18th Century, unpublished paper;
Timothy Thim-Fook, Food for the City: The Role of the Informal Sector, 4 GEOJOURNAL, 49-59
(1982); NARUMOL NIRATHRON, supra note 104; Zoe Elena Horn, No Cushion to Fall Back On
the Global Economic Crisis and Informal Workers, INCLUSIVE CITIES STUDY (August 2009);
MONIQUE COHEN, WOMEN STREET VENDORS: THE ROAD TO RECOGNITION (2000).
108 Heuvel, supra note 90, at 136-137.
109 Roever, supra note 98, at 5-6. The original sources referenced include Crossa, supra note 87;
Vronique D.N. Dupont, The Dream of Delhi as a Global City, 35(3) INTERNATIONAL JOURNAL OF
URBAN AND REGIONAL RESEARCH 533-554 (May 2011); Caroline Skinner, Street Trading Trends
in Africa: A Critical Review, in STREET VENDORS IN THE GLOBAL URBAN ECONOMY, supra note
101; zlem z & Mine Eder, Rendering Istanbuls Periodic Bazaars Invisible: Reflections on
Urban Transformation and Contested Space, 36(2) INTERNATIONAL JOURNAL OF URBAN AND
REGIONAL RESEARCH 297-314 (March 2012); Setabi Setabi, Contest and Conflict: Governance
and Street Livelihoods in Maseru, Lesotho, in CONTESTED SPACE: STREET TRADING, PUBLIC SPACE,
AND L IVELIHOODS IN DEVELOPING C ITIES (Alison Brown, ed. 2006); Sarah Turner & Laura
Schoenberger, Street Vendor Livelihoods and Everyday Politics in Hanoi, Vietnam: The Seeds of
a Diverse Economy?, 49(5) URBAN STUDIES 1027-1044 (April 2011); Alison Brown, Michal Lyons
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legitimate participants in urban policy processes (Brown et al. 2010;

elik 2009; Crossa 2009; Dobson and Skinner 2009; Lindell 2010;
Kumar 2012).109
Bromleys global review of street vending provides a useful summary of the major
arguments that are frequently used to justify and to oppose the continuation and
proliferation of street vending, and are worth reiterating here in brief. The eleven
major arguments in support of street vending include: 1) Street vendors contribute
directly to the overall level of economic activity, and to the provision of goods
and services; 2) Citizens have constitutional rights to choose their occupations and
to engage in entrepreneurial activities; 3) Street vending is an actual or potential
source of government tax revenues; 4) Street vending serves as a social safety-net;
5) Street vending is a laboratory for entrepreneurship, family business and social
interaction; 6) Street vending provides entrepreneurial opportunities to people
who cannot afford to buy or rent fixed premises; 7) Street vendors greatly expand
the range of places and times where goods and services can be provided, and
sometimes they also offer goods and services which are not available in off-street
locations; 8) Street vendors bring life to dull streets; 9) Because of its low capital
requirements and its potential mobility, street vending is a very effective way to
cater for seasonal, sporadic and special demands; 10) Street vending offers its workers
considerable flexibility in hours and levels of activity and; 11) Street vending is a
remarkable example of self-help and grass-roots initiative.110
Bromley articulates the sixteen major arguments commonly used against street
vending as: 1) Street vendors are not evenly spread across the city. They concentrate
very heavily in a few locations, and those locations are typically the points with
the highest levels of pedestrian and vehicular congestion; 2) By contributing to
vehicular and pedestrian congestion, street vendors may cause traffic accidents,
increase the levels of vehicle-generated air pollution, and impede the flow of police,
& Ibrahima Dankoco, Street Traders and the Emerging Spaces for Urban Voice and Citizenship
in African Cities, 47(3) URBAN STUDIES 666-683 (January 2010); ERCMENT ELIK, STREET TRADERS:
A BRIDGE BETWEEN TRADE UNIONS AND SOCIAL MOVEMENTS IN CONTEMPORARY SOUTH AFRICA
(2009); RICHARD DOBSON & CAROLINE SKINNER WITH JILLIAN NICHOLSON, WORKING IN WARWICK:
INCLUDING STREET TRADERS IN URBAN PLANS (2009); AFRICAS INFORMAL WORKERS: COLLECTIVE
AGENCY, ALLIANCES AND TRANSNATIONAL ORGANIZING IN URBAN AFRICA (Ilda Lindell ed., 2010);
Randhir Kumar, The Regularization of Street Vending in Bhubaneswar, India: A Policy Model,
WIEGO POLICY BRIEF (URBAN POLICIES) NO. 7 (2012).
110 Bromley, supra note 102, at 5-6.
35

fire, ambulance and other emergency vehicles; 3) Street vending reduces the number
of routes available to motor vehicles, it impedes door-to-door deliveries and
collections, and it may create access problems for emergency vehicles; 4) Street
vendors may block the routes of egress from crowded buildings like theatres,
stadiums and department stores, increasing the scale of the tragedy in the event of
a major fire, explosion, toxic gas escape or mass hysteria; 5) Street vendors can and
often do forestall off-street businesses, attracting potential purchasers as they
walk into a concentration of on- and off-street business activity; 6) Street vendors
often fail to give receipts and keep accounts, to pay taxes on their earnings, and to
charge sales or value added taxes to their customers; 7) Because they can leave or
relocate their businesses more easily, street vendors have greater opportunity to
swindle their customers and avoid official regulation than vendors in fixed retail
establishments; 8) Street vendors of food and drink pose major public health
problems; 9) Street vendors may be less professional, committed, and responsible
than off-street vendors; 10) Street vendors often include substantial numbers of
minors; 11) A small minority of street vendors engage in such highly disreputable
and often illegal trades as ticket-touting, pimping, prostitution, and the retailing
of narcotics; 12) Street vendors contribute to the underground economy of
undocumented cash transactions, not only through their sales, but also through
the bribes they are often required to pay to police and municipal inspectors;
13) Through the activity and congestion that they generate, street vendors provide
opportunities for pick-pocketing, snatch thefts and armed assaults; 14) Some
pedestrians and many motorists are disturbed, irritated and even frightened by
street vendors solicitations; 15) Street vendors are often considered unsightly,
they may generate a lot of noise with their announcements, and they and their
customers often leave garbage on the streets; 16) In orthodox Marxist visions,
street vendors are viewed as the epitome of surplus labour and underemployment,
inserting additional middlemen into marketing chains, promoting superfluous
consumption, and supporting a petty capitalist, competitive ethic.111 The
significance of the different arguments varies considerably from country to
country, from city to city, and in accordance with the specific characteristics of
the vendor, merchandise and the neighbourhood under analysis. Significantly,
the most heated debates on street vending concern conflict-zones of agglomeration
or hyper-agglomeration (usually less than five percent of the urban area and
including the central business district, various neighbourhood and suburban
commercial centres, the major sports and entertainment centres, tourist attractions,
religious sites, monuments, etc.).112 Consequently, each argument (whether for or
against street vending) deserves careful empirical study within the context of its
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applicability.
While a detailed global overview of urban street vending is beyond the scope of
this speculative review essay, Roevers Informal Economy Monitoring Study (IEMS)
Sector Report on Street Vendors demonstrates the possibility and value of multicity research on street vending and usefully details some clear patterns that emerge
(across the five cities studied) with regard to status in employment, enterprise
structure, gender, and working conditions.113 The IEMS study focuses on the way
in which three sets of driving forces macroeconomic, city/government, and
value chain play out among different segments of the street vending sector across
113 Street vending is not a temporary occupation for most vendors in the sample: on average,
women have been working as street vendors for 14.2 years and men for 12.8 yearsFor
vendors without a fixed post those who walk along streets, sidewalks, and transport routes,
selling only what they can carry the profit margin depends on their ability to sell in areas with
a large enough customer base and small enough number of competitors.. Data from the focus
groups indicate a strong reliance among vendors on having a regular workplace where returning
customers can easily find them; in the survey, 90 per cent reported that they work at the same
place every day.. Among the few who do not work at the same place every day, 40 per cent are
mobile hawkers who carry their goods and sell on foot, and 60 per cent have some sort of cart,
stand, table, or ground cover More than two thirds of vendors live in households for which
street vending provides the main source of household income. In no city does formal wage
employment provide more than 9 per cent of households with their primary source of income..
Among street vendors in the five cities, men have significantly higher levels of education than
women.. Overall, women are nearly twice as likely as men to sell produce, and men are nearly
twice as likely as women to sell durables. The latter includes, most commonly, garments, electronics,
and DVDs vendors in the IEMS sample described unstable patterns of earnings and
expenditures and unpredictable work environments.They tend to face frequent disruptions in
earnings and savings not only from being unable to work when they are ill, but also from costs
imposed through systemic factors that undermine their ability to save over time. . Recovering
from these disruptions while keeping up with household expenses was a common challenge,
particularly for the most vulnerable vendors. See Roever, supra note 98, at 8-13.
114 In the section Key Findings, the study states: Overall, the one most consistently and highly
ranked driver in every city was abuse of authority, including police harassment, demands for
bribes, arbitrary confiscations of merchandise, and physical abuse. Street vendors also ranked the
lack of a fixed and secure workplace and evictions from (or demolitions of) existing workplaces
among the most significant negative drivers. Regulatory restrictions and government practices
relating to licensing and fees were also significant. Notably, where vendors did have a secure
workplace or an effective license to work, they ranked it among the most positive forcesUrban
infrastructure and services were also identified as significant drivers in all five cities. Vendors
identified lack of shelter, inadequate storage facilities, and insufficient supply of water, electricity,
toilets, and waste removal services as systemic factors that undermine productivity and limit their
ability to accumulate over time Again, where access to or quality of urban infrastructure was
good, vendors identified it as a significant positive driver. See Roever, supra note 98, at 59.
37

five cities (Accra, Ghana; Ahmedabad, India; Durban, South Africa; Lima, Peru;
and Nakuru, Kenya), and finds that drivers related to the city/government are
the most significant for street vendors.114 Roever points out that the IEMS data
contributes to our understanding on three theoretical issues of importance:
1) certain components of the external environment (these include include abuse
of authority on the part of local governments; restrictive and non-transparent
regulations; poor quality of infrastructure and services for which vendors pay;
and unfair value chain practices) constrain street vending and informal enterprise
as they are linked to a lack of effective legal rights and bargaining power; 2) street
vendors and informal economic actors engage or are forced to engage with the
state regulatory system in unique and distinctly disadvantaged ways rather than
operating outside of regulatory systems, and; 3) some street vending organisations
position themselves as worker organizations and/or affiliated with the trade union
movement, while others position themselves as business or entrepreneurs
organizations, and the relative merits of both positions requires further empirical
research.115
115 See Roever, supra note 98, at 59-61.

116 See, for example, Appadurai, supra note 49; ARJUN APPADURAI, MODERNITY AT LARGE: CULTURAL
DIMENSIONS OF GLOBALIZATION (1996); Arjun Appadurai, Spectral Housing and Urban Cleansing:
Notes on Millenial Mumbai, 12(3) PUBLIC CULTURE 627-651 (2000); Arjun Appadurai, Deep
Democracy: Urban Governmentality and the Horizon of Politics, 13(2) ENVIRONMENT AND
URBANISM 23-44 (2001).
117 See, for example, PARTHA CHATTERJEE, supra note 38; PARTHA CHATTERJEE, supra note 8.
118 See, for example, Madhu Purnima Kishwar, The Making and Unmaking of a Model Market for
Street Vendors, Part I and Part II, http://www.manushi.in/articles.php?articleId=
1586&ptype=campaigns#.VbJIRfmFHBw; Madhu Purnima Kishwar, Urban Informal Sector:
The Need for a Bottom-up Agenda of Economic Reforms Case Studies of Cycle Rickshaws and
Street Vendors in Delhi, in MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, INDIA:
URBAN POVERTY REPORT (2009), MADHU PURNIMA KISHWAR, DEEPENING DEMOCRACY CHALLENGES
OF GOVERNANCE AND GLOBALIZATION IN INDIA (2005), and relevant articles in the Manushi journal.
119 See, for example, SHARIT K. BHOWMIK & DEBDULAL SAHA, STREET VENDING IN TEN CITIES IN INDIA
(June 2012); Debdulal Saha, Street Vendors in Mumbai: An Exploration within the Framework
of Decent Work, (2012) (unpublished Ph.D. dissertation, Tata Institute of Social Sciences, Mumbai);
SHARIT K. BHOWMIK & DEBDULAL SAHA, FINANCIAL ACCESSIBILITY OF THE STREET VENDORS IN INDIA:
CASES OF INCLUSION AND EXCLUSION (2011); STREET VENDORS IN THE GLOBAL URBAN ECONOMY,
supra note 101; Sharit K Bhowmik, Street Vendors in Asia: A Review, 40 ECONOMIC & POLITICAL
WEEKLY 2256-2264 (May-June 2005).
120 See, for example, ANANYA ROY, CITY REQUIEM, CALCUTTA: GENDER AND THE POLITICS OF POVERTY
(2003); Roy, supra note 67.
121 See, for example, Rityajyoti Bandyopadhyay, The Street Vendors Act and Pedestrianism in India:
A Reading of the Archival Politics of the Calcutta Hawker Sangram Committee, in, STREET
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The context of street vending in Indian cities has been seriously explored
in the work(s) of only a handful of scholars, most notably, Arjun Appadurai,116
Partha Chatterjee,117 Madhu Purnima Kishwar,118 Sharit K. Bhowmik and
Debdulal Saha,119 Ananya Roy,120 Ritajyoti Bandyopadhyay,121 Jonathan Shapiro
Anjaria,122 and Amlanjyoti Goswami.123 Despite a couple of multi-city surveys
over the past few decades,124 reliable national level empirical data on street vending
in India has not been easily accessible in the academic and policy literature. Most
estimates (including the 2013 parliamentary Standing Committee Report on the
Street Vending Bill of 2012) refer back to a National Commission for Enterprises
122
123
124
125
VENDING IN THE NEOLIBERAL CITY: A GLOBAL PERSPECTIVE ON THE PRACTICES AND POLICIES OF A
MARGINALIZED ECONOMY, supra note 101; Rityajyoti Bandyopadhyay, The Hawkers Question in
Postcolonial Calcutta: Histories and Possibilities (2014) (unpublished manuscript); Ritajyoti
Bandyopadhyay, TV Prathamesh & Puja Guha, Zoning crossroads: a critique, in STREETSCAPES: A
SYMPOSIUM ON THE FUTURE OF THE STREET, supra note 62, http://www.india-seminar.com/2012/
636/636_ritajyoti_et_all.htm; Ritajyoti Bandyopadhyay, Politics of archiving: hawkers and
pavement dwellers in Calcutta, 35(3) DIALECTICAL ANTHROPOLOGY 295-316 (September 2011);
Ritajyoti Bandyopadhyay, Hawkers Movement in Kolkata, 1975-2007, 44 ECONOMIC & POLITICAL
WEEKLY 116-119 (April 25, 2009).
See, for example, Jonathan Shapiro Anjaria, How we define the street, INDIAN EXPRESS, 10 March,
2014; Jonathan Shapiro Anjaria & Alka Anjaria, The fractured spaces of entrepreneurialism in
post-liberalization India, in ENTERPRISE CULTURE IN NEOLIBERAL INDIA: STUDIES IN YOUTH, CLASS,
WORK AND MEDIA 190-205 (Nandini Gooptu ed., 2013); Jonathan Shapiro Anjaria, Is there a
culture of the Indian Street, in STREETSCAPES: A SYMPOSIUM ON THE FUTURE OF THE STREET, supra note
59, http://www.india-seminar.com/2012/636/636_jonathan_s_anjaria.htm; U RBAN
NAVIGATIONS: POLITICS, SPACE AND THE CITY IN SOUTH ASIA (Jonathan Shapiro Anjaria & Colin
McFarlane eds., 2011); Jonathan Shapiro Anjaria, Guardians of the Bourgeois City: Citizenship,
Public Space, and Middle-Class Activism in Mumbai, 8(4) CITY & COMMUNITY 391-406 (2009);
Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL
WEEKLY 2140-2146 (May 27, 2006).
See Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality
of Vending, in THE CITY IN URBAN POVERTY 183-204 (Charlotte Lemanski and Colin Marx eds.,
2015).
See, for example, BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119;
SHARIT K. BHOWMIK, HAWKERS IN THE URBAN INFORMAL SECTOR: A STUDY OF STREET VENDING IN
SEVEN CITIES OF INDIA (2000). A useful repository of survey resources, articles and papers on street
vending in India can be accessed at the Strengthen and Harmonize Research and Action on
Migration (SHRAM) website, http://www.shram.org/SearchPage.php?search_field=street+
vendor&x=0&y=0.
NATIONAL COMMISSION FOR ENTERPRISES IN THE UNORGANIZED SECTOR, NATIONAL POLICY ON URBAN
STREET VENDORS: REPORT AND RECOMMENDATIONS 2 (May 2006); See also LOK SABHA SECRETARIATSTANDING COMMITTEE ON URBAN DEVELOPMENT (2012-13), TWENTY THIRD REPORT ON THE STREET
VENDORS (PROTECTION OF LIVELIHOOD AND REGULATION OF STREET VENDING) BILL, 2012 (MARCH
2013).
39

in the Unorganised Sector (NCEUS) 2006 Report according to which the total
number of street vendors (1999-2000) would range from 30 to 43 lakh both in
rural and urban areas. For urban areas alone, it would range between 17 to 25
lakh.125
While methodologies for statistical estimates of the informal sector are far from
universally agreed upon,126 the relevant findings of two recent studies (analysing
statistical data on informality in India) bear mentioning. Martha Chen and G.
Raveendran point out that in 2011-12 street vending in India represented 4 per
cent of the total urban employment and 5 per cent of the informal urban
employment with the percentage of men who were street vendors (5%) being 1.7
times higher than that of the women (3%).127 Further, Chen and Raveendran point
out that while there was an increase in domestic work, home-based work, and
waste picking among all male and female workers (both total urban and informal
urban) from 1999-2000 to 2011-12, there was a decrease in street vending among
all categories during the same period (for example, the total share of street vendors
as a percentage of the total urban workers declined from 6 per cent in 1999-2000
to 4 per cent in 2011-12).128 Analysing unit level data from the National Sample
Survey Office (NSSO) 66th round on employment and unemployment (2009-10),
Sobin George, lists the total number of street vendors and related workers in
India as 10747755 (1.05% of the total population, 0.69% of the rural population,
and 2.01% of the urban population) and points out that 53 per cent of these
vendors are in urban areas.129 Further, looking at worker population ratios (by
religion and by caste/ethnicity social groups) in selected major cities, Sobin
concludes that [i]n most of the major cities, except Chennai, Kolkata and Ludhiana,
it is Muslims who are mostly engaged in street vending activities.Social group
composition of street vendors in major Indian cities shows that it is mostly SCs
and OBCs who are engaged in such occupations.130 The inferences (about street
126 See generally, Joann Vanek et al, Statistics on the Informal Economy: Definitions, Regional
Estimates and Challenges, WIEGO WORKING PAPER (STATISTICS) NO. 2 (April 2014).
127 See Martha Alter Chen and G. Raveendran, Urban Employment in India: Recent Trends and
Patterns, WIEGO WORKING PAPER NO. 7, at 11 (November 2011, updated 2014).
128 Id., at 11-12.
129 Sobin George, New Forms of Retail Trade and the Trajectories of Urban Exclusion in India: A
Review, Working PAPER 313, INSTITUTE FOR SOCIAL AND ECONOMIC CHANGE 13, 15 (2014).
130 Id.
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vending, spatial justice, urban modernity, etc. in India and in cities in India) that
may be drawn from these numbers certainly deserve careful future attention.
While every city, and in fact every street, in India, has its own spatiality, its own
temporality, its own possibilities of interstitial justice, it is worthwhile here to
briefly (and impressionistically) attempt to sketch the world of urban street vending
and the urban street vendor in India. Goswami, for example, points out that the
every vendor possesses a keen awareness of the various uses and users of the
street. The vendor depends on the bus traveller, the pedestrian, the office goer,
the lounger.131 As regards the built form of the street, Geetam Tiwari has pointed
out that the road environment design and nature of road traffic in Indian cities
(including pedestrians, bicycles, animal-driven carts, non-motorised rickshaws,
etc.) imply both that street vendors are inevitable and that such street trade serves
a very real and otherwise largely un-fulfilled demand.132 The survey (coordinated
by Sharit K. Bhowmik and Debdulal Saha) conducted in ten cities across India
(Bhubaneswar, Bengaluru, Delhi, Hyderabad, Imphal, Indore, Jaipur, Lucknow,
Mumbai and Patna) provides some useful details about the working and living
conditions of street vendors, the views of consumers, and the spatio-temporality
of urban street vending in India.133 Summarizing their findings across the 10 cities,
Bhowmik and Saha point out that: street vendors are overwhelmingly male with
131 Amlanjyoti Goswami, Where the Street Has No Name: Reflections on the Legality and Spatiality
of Vending, supra note 123.
132 Geetam Tiwari, Encroachers or service providers?, in STREET VENDORS: A SYMPOSIUM ON RECONCILING
PEOPLES LIVELIHOOD AND URBAN GOVERNANCE, 491 SEMINAR (July 2000), http://www.indiaseminar.com/2000/491/491%20geetam%20tiwari.htm.
133 See BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119. See also, Jonathan
Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL WEEKLY
2140-2146 (May 27, 2006); Rityajyoti Bandyopadhyay, The Hawkers Question in Postcolonial
Calcutta: Histories and Possibilities (2014) (unpublished manuscript); ENVIRONMENT SUPPORT
GROUP, A BRIEF STUDY OF STREET VENDORS IN THE CITY OF BENGALURU (October 2010); C.N. Ray
& Assem Mishra, Vendors and Informal Sector A Case-Study of Street Vendors of Surat City,
(November 2011); DARSHINI MAHADEVIA, SUCHITA VYAS & ASEEM MISHRA, INFORMAL ECONOMY
M ONITORING STUDY: STREET VENDORS IN AHMEDABAD, INDIA (2014); Saha, supra note 119;
Joseph Kweku Assan & Thomas Chambers, Indias street vendors and the struggle to sustain
their livelihoods and informal enterprises: Unionization, political action and sustainable
development, 3(11) INTERNATIONAL JOURNAL OF DEVELOPMENT AND SUSTAINABILITY 2140-2161 (2014);
Strengthen and Harmonize Research and Action on Migration (SHRAM) website, supra note 127.
For earlier surveys, see BHOWMIK, supra note 124; SNDT WOMENS UNIVERSITY AND ILO,
STUDY OF STREET VENDORS IN MUMBAI (1999); RN SHARMA ET AL, CENSUS OF HAWKERS ON BMC
LANDS (1998).
41

the sole exception of Imphal where an overwhelming majority (88.5%) of street
vendors are female; a majority of street vendors are married; the bulk of the street
vendors in all the ten cities were in the productive age group of 25-55 years; a
large number of vendors (especially in cities such as Delhi, Patna, Hyderabad and
Imphal) are illiterate; Other Backward Classes (OBCs) are the single largest castelinked group though some cities such as Jaipur, Indore and Hyderabad have a
high proportion of Scheduled Caste (SC) vendors; an overwhelming majority of
vendors (over 80%) belong to the Hindu religion; while stationary vendors who
occupy a patch on the pavement may have lower sales than mobile vendors with
push carts, they are better off than mobile women vendors who carry their wares
on baskets on their heads; in most cities (Jaipur being an exception), stationary
vendors outnumber the mobile vendors; non-perishable items sold by vendors
include clothes, metal utensils, plastic goods, leather goods, electronics, etc. whereas
the perishable goods sold include vegetables, fruits, flowers, fish, and cooked
food; many vendors prefer selling perishable food items because the prices of
these items are less compared to non-perishable items such as household and
electronic goods; some cities (for example, Bangalore, Delhi, Imphal, Indore) have
more vendors selling perishable items whereas other cities (Bhubaneshwar,
Hyderabad, Jaipur, Lucknow, Mumbai, and Patna) have a greater proportion of
non-perishable items; vegetables are largely sold by female vendors and female
vendors in general have lower capital for investing in their trade; fruit vendors are
in a better position than vegetable vendors due to the cost and profit-margins
involved with fruits; a majority of vendors stay within five kilometres of their
workplace; while most vendors walk to their place of work in most cities, in
Bhubaneshwar a majority of vendors (48%) bicycle to their place of work and in
Imphal a majority of (women) vendors take a bus (42%) or auto-rickshaw (32%)
to their place of work; storage facilities are a major problem in most cities, and
unsold or new goods are stored at home, at the workplace, or at a shop/godown
where rent is paid, with Bhubaneshwar being the only exception where 93.5% of
the vendors store their goods at the workplace; a majority of vendors dip into
their own savings to finance their business; rates charged by money lenders in all
the cities varied between 300% to 1000% per annum and in most cases the money
lender expected to be repaid every month; most vendors work between eight to
twelve hours a day; a large section of vendors live in one room tenements and in
134 See BHOWMIK & SAHA, STREET VENDING IN TEN CITIES IN INDIA, supra note 119, at 12-24.
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several cities (Bengaluru, Delhi, Hyderabad, Jaipur, Lucknow, and Patna) a

majority of vendors live in temporary structures (usually slums/shanties built on
public land); a majority of vendors in all the cities paid bribes to the authorities
on a regular basis, and bribes usually ranged from Rs. 2 to Rs. 100 per day.134 In
general, street vendors earn very meagre wages (some earlier estimates relying on
the NCEUS street vending report of 2006 were as low as Rs. 40 to Rs. 80 per day)
therefore, it would be accurate to generalise that most street vendors are
desperately poor relative to their counterparts in the formal segment of the
economy.135 Estimates suggest that women constitute 30% of the total population
of vendors in India and that they earn significantly lower incomes than their male
counterparts.136 Most studies indicate that a majority of street vendors in Indian
cities are unlicensed and therefore officially treated as illegal.137 Correspondingly,
most studies note that a significant proportion of street vendor earnings (estimates
suggest between 20% - 30%) are taken as bribes by the authorities. While nationallevel data is not available, one recent report suggests that the extortion racket
must be worth at least Rs. 1,000 crore in Mumbai and Rs. 600 crore in Delhi.138
Despite some positive efforts in cities like Bhubaneshwar and Imphal, street
vendors continue to face often insurmountable difficulties in procuring a license
from corrupt, defunct or insensitive state authorities. Street vendors also face a
constant threat of over-enthusiastically enforced, outdated regulations that threaten
their livelihood, dignity, profitability, etc. or position them away from the natural
markets where they would otherwise tend to be positioned.139
135 See LOK SABHA SECRETARIAT, supra note 125, at 1-2.
136 Bhowmik, supra note 101, at 27; LOK SABHA SECRETARIAT, supra note 125, at 1, 2.
137 In Mumbai, the municipality had not issued a new street vending license from 1978 to 2000, as
a result of which nearly all of the then 200,000 to 300,000 street vendors in Mumbai were illegal.
See Sharit K Bhowmik, A Raw Deal?, in STREET VENDORS: A SYMPOSIUM ON RECONCILING PEOPLES
LIVELIHOOD AND URBAN GOVERNANCE, supra note 132, http://www.india-seminar.com/2000/
491/491%20s.k.%20bhowmik.htm.
138 See G. Sampath, Living on the Citys sidelines, T HE HINDU , (June 18, 2015), http://
www.thehindu.com/opinion/op-ed/living-on-the-citys-sidelines/article7326413.ece. Reporting
the findings of fieldwork in different parts of Ahmedabad in 2011-2012, one study by Mahadevia
et al. found that most vendors in Ahmedabad were losing a significant amount of their earnings
in bribes. See Darshini Mahadevia et al, Street Vendors in Ahmedabad: Status, Contributions and
Challenges, WORKING PAPER NO. 20, CENTER FOR URBAN EQUITY, CEPT UNIVERSITY 35, 36
(2013).
139 See AS Abhigna, Different Ideas for Licensing Street Vendors Especially in Old Indian Cities,
CCS WORKING PAPER NO. 235, (2010); Shalini Sinha & Sally Roever, Indias National Policy on
Urban Street Vendors, Urban POLICIES BRIEFING NOTE. 4, WIEGO (April 2011).
43

Bolstered by the sobering reality of such survey data, G. Sampath (the Social
Affairs editor of the Hindu newspaper) recently forcefully argued for a recognition
of the enormous contribution that street vendors make to the economy while
pushing for inclusive vendor-friendly cities in India:
On the one hand, they subsidise the urban poor, who cannot afford
to shop from malls or supermarkets for their necessities. On the other,
they are a cheap distribution network for small and micro-enterprises
in the informal sector that make toys, clothes, utensils, and other
household goods from moulded plastic at a low cost. These small
industries cannot afford to sell their goods via conventional retail
outlets. But they employ a large number of workers. If we take the
number of people employed in these micro-industries, and add them
to the total number of street vendors, it becomes clear that hawking
sustains a great deal of employment Do we want a city of incomebased ghettos where the lower income groups carry on their economic
activity out of sight of the higher income groups? Or do we want
our neighbourhoods to be spaces for social and communal life, where
people from different socio-economic classes get to interact, transact,
form social bonds, and together create a rich tapestry of urban living?140
A rich tapestry of urban living in Indias contested, complicated and rhizomic
urban centres is easier said than done however just as one ought to carefully
avoid being a guardian of the bourgeois city who undermines the radically
heterogeneous forms of democratic political participation the city offers, one also
ought to carefully avoid being hyper-egalitarian or overly romantic about street
life and the background possibilities of urban street order in India.141 A sensible
approach to street order and to street vending will require the considered spatialized
articulation of the right to the city (for all concerned) in each and every street
under consideration. A more realistic appraisal of the background possibilities of
urban street order in India will require a careful appreciation of the fuller context
140 Sampath, supra note 138.
141 See Jonathan Shapiro Anjaria, Guardians of the Bourgeois City: Citizenship, Public Space, and
Middle-Class Activism in Mumbai, 8(4) CITY & COMMUNITY 391-406 (2009), and Robert C.
Ellickson, supra note 72.
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of spatial justice implicated within the regulation of urban street vending. For
example, Arjun Appadurai and Partha Chatterjee, in two classic texts that look at
distinct discursive spaces, give us an inkling of what is at stake in imagining a
genuine street order that can generate the sufficient and necessary conditions for
a rich tapestry of urban living in modern India.142
Can we hope that promoting street vending in Indian cities will resolve the problems
of a homeless beggar child who begs automobile travellers to buy stickers or ballpoint pens or cheap toys at the many traffic signals across Indias cities? Can we
hope that promoting street vending in India will ameliorate or liberate the
transgendered beggar/entertainer/sex-vendor on Indian streets? Will the promotion
of street vending increase or decrease slums and other illegal and/or informal
urban settlements in India? Will the promotion of urban street vending promote
unmanageable migration to cities by former farmingcommunities? Will the
promotion of street vending truly empower poor urban entrepreneurs or will it
serve the interests of well-organised urban mafias that exploit street vendors and
beggars in India? Will street vending make our cities more plural and more liveable
or will it result in a large number of people withdrawing from public spaces to
private gated communities? Is a particular street vendor a member of a marginalized
community desperately in need of protection or is she a calculating entrepreneur
unfairly cashing in on state largesse or is she a criminal body and encroacher on a
spatio-normativised street? Does justice with regard to street vending involve the
politics of recognition or redistribution or redemption or some combination
thereof? These questions do not have easy answers, and I will not belabour the
point here, except to say that urban street vending in India can be fully encouraged
and be legitimately entrepreneurial only when issues of beggary, of homelessness,
or rural dispossession, of urban criminality, of induced and involuntary migration,
of social exclusion, of gender and sexuality inequality, of neoliberal
reterritorialization, and of fetishized consumption, are also embraced within the
same frame of analysis.143
142 See Partha Chatterjee, Democracy and Economic Transformation in India, 43 ECONOMIC &
POLITICAL WEEKLY 53-62 (April 19, 2008); Appadurai, Spectral Housing and Urban Cleansing:
Notes on Millenial Mumbai, supra note 116.
143 For one study that attempts to see the urban issue in a multi-dimensional perspective, see
Mahmud, supra note 32. See also, Usha Ramanathan, supra note 39; Usha Ramanathan,
Ostensible Poverty, Beggary and the Law, 43 ECONOMIC & POLITICAL WEEKLY 33-44 (November
1, 2008).
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Appadurais description of street life in spectral millennial Mumbai disabuses us
of any easy or immediate solution to the issue of urban street vending in modern
India:
Much could be said about Indian street life and the life of Bombays
streets in respect to housingSome actually live on pavements, and
others sleep in the gray spaces between buildings and streets. Yet
others live on roofs and on parapets, above garages, and in a variety
of interstitial spaces that are not fully controlled by either landlords
or the state.. At the same time, small commercial enterprises sprout
on every possible spot in every possible street, attached to buildings,
to telephone poles, to electricity switching houses, or to anything
else that does not move. These petty enterprises are by nature shelters,
so many commercial stalls are, de facto, homes on the street for one
or more people. The same is true of the kitchens of restaurants, parts
of office buildingsindeed, any structure where a poor person has
the smallest legitimate right to stay in or near a habitable structure,
especially one that has water or a roof. Electricity and heat are rare
luxuries, of course. From the point of view of street life,
consumption is fuelled by the explosive growth in small-scale
hucksters, vendors, and retailers that have flooded Mumbais
pavements, rendering them almost impassable. Many of these vendor
dominated streets peddle items having to do with the fantasy of a
global, middleclass consumer, with the truly smuggled, the imitated
pirates, and the homegrown simulacrum all joyously mixed with each
other: bras and juicers, lamps and window shades, underwear and
cutting knives, sandwich makers and clothespins, decorative kitsch
and T-shirts, womens dressing gowns and mens Levis. There seems
to be no real annoyance with these vendors, despite the fact that they
put pedestrians in the awkward position of either walking on the
road (nudged by cars that could kill them), falling into the sewage
grates just next to the curb (which are sometimes open), or picking
their way through carpets of T-shirts, sneakers, and drinking
glasses. These public dramas of consumption revolving around
the accoutrements of domesticity constitute an investment in the
equipping of houses that may be small and overcrowded, where
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individual space and rights may be highly restricted, and where much
in the way of modern amenities may be limited or absent. These
humble objects of domestic life are thus proleptic tools of a domesticity
without houses, houseless domesticity. In the purchase and assemblage
of these objects, which imply a domestic plenitude that is surely
exaggerated, Bombays working poor and nonprofessional service
classes produce their own spectral domesticity, which in its sensuous,
cash-based, pleasurable social reality recognizes the shrinking horizon
of the actual houses in which these objects might have a predictable
life. Of course, all modern shopping (in Mumbai and beyond) has
the anticipatory, the imagined, the auratic, and the possessive about
its ethos. But street shopping in Mumbai, like public sleeping, is a
form of claim to housing that no one can contest or subvert in the
city of cash. This is where the specters of eviction meet the agencies
of consumption.144
In the concluding part of this essay, I offer a brief account of the context and
sources of street vending law in India while noting its possibilities for interstitial
spatial justice in the context of Indias unique modernity. Conceptualising street
vending in India [for development planning, public law, and regulatory
enforcement] is a truly formidable challenge. For starters, the foundational
parameters implicated in Indian law and governance getting it right include a
messy federal constitutional order, a post-colonial society not fully clear on how
to interpret its own historical narrative and place in modernity, fuzzy property
law regimes, a history of notoriously corrupt and inefficient state functionaries,
and a political consciousness that resists easy identification with rights-centric
liberal European vocabularies. Second, street trade involves deeply contested and
highly contextual considerations of health, novelty value, variety of goods, aesthetic
impact, economic impact, affordability, convenience, locational value, religious
strictures, caste norms, traditional appropriateness, positive and negative
externalities including impact on public order, street congestion and crime, impact
on migration and population, transport complementarity, impact on tourism,
enterprise capacity, employment generation, relevant spatial preferences and
144 Appadurai, Spectral Housing and Urban Cleansing: Notes on Millenial Mumbai, supra note 116,
at 636-643.
47

limitations, heritage conservation, sustainability, etc. Third, while reliable statistics
are particularly hard to come by as indicated earlier in this essay, street vendors
are estimated at around 2% to 2.5% of the population of several major Indian
cities; estimates suggest a staggeringly large 10 million or more street vendors in
India. Policy prescriptions and laws (in the context of their application in urban
India) need to effectively respond to the reality of a large urban street vending
sector, in rapidly-expanding, high-population, economically heterogeneous, urban
centres with site-specific spatial organisation, transport networks and cultural/
aesthetic geographies, and where street vending has been long prevalent and is
only likely to increase in frequency, distribution and scale of operation. Fourth,
any nuanced outlook also needs to take note of the rural, local, national and
international assemblages that city street trades in India are implicated within.
In the limited writing available on street vending law in India, Amlanjyoti
Goswamis recent book-chapter Where the Street Has No Name: Reflections on
the Legality and Spatiality of Vending is a rare exception that focuses on a spatial
and thoroughly interstitial analysis. Invoking Deleuze and Guattari, Goswami
analyses street vending in Dakshinapuri, New Delhi and street vending law in
India, and nicely draws out the linkages between street vending law, space, and
time:
Street vending may be a smooth space, mobile, itinerant, irregular. It
may be easier for the state to striate that space, if vendors represent a
marginalised political constituency, only eventually reliant on a distant
Judiciary. Boundary marking is the tool law uses to regulate space. If
street vending is perceived as smooth space, tactile and haptic, the
state striates the space with its rules. At the same time, transformation
of that smooth space into striated space is never complete. The state
uses legality to regulate vending through various instruments (judicial
rulings, laws, licensing, police and municipal demarcations of
territory), while vending, being nomadic in orientation, would
continue to negotiate around space in between. These spaces would
be grey areas in the laws; between vending and non-vending zones;
interpretations regarding natural markets; periods before and
145 Amlanjyoti Goswami, supra note 123.
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between licenses; spaces where a temporal restriction is fulfilled if not a

spatial one; changing, visible and invisible boundaries; the mobile vendor
weaving in and out of zones and meanings around similar navigations.145
Street vending law represents an archive, a register, a frontier, and an unfinished
manuscript for spatial justice in India. The history of the evolution of street vending
law in India and the larger political histories that animated this evolution require
sustained study. The final form that urban street vending law takes will alert us to
the revolutionary possibilities or lack thereof of the right to the city discourse.
The story of street vending law in India tells us about the stories of the urban
subaltern in Indian cities - the story of the rural migrant, the laid-off mill hand,
the homeless and the illiterate and the abandoned, the entrepreneurial, the organized
street gangs, the flneurs, the ramblers, the street walkers, and so on. It also tells
us about the significance of spatial justice in Indias constitutional post-colonial
order how fundamental rights, development plans, municipal land use regulations,
and government schemes (could) come together to promote or suppress the
flourishing of the good life for all. In the following paragraphs I offer a brief
overview of the sources and development of street vending law in India before
concluding with a synoptic characterisation of the interstice and the new 2014
national street vending law.
The Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Bill, 2014 was passed by the Rajya Sabha on 19th February 2014, received presidential
assent on 4th March 2014, and came into force as the Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Act, 2014 on 1st May, 2014. The
first version of a model Street Vendors (Protection of Livelihood and Regulation
of Street Vending) Bill was prepared by the Government of India and approved
by the Union Cabinet on 23rd February, 2009 and was circulated to all the State
Governments.146 Prior to the national law enacted in 2014, the applicable law
relating to street vending in India had to be cobbled together from a disparate
array of sources: some state-level laws and policies directly dealing with street
vending; the national urban street vending policy of 2009 and the older national
street vending policy of 2004; a large number of municipal regulations, state-level
laws, and national-level laws that limited or indirectly regulated street vending;
146 LOK SABHA SECRETARIAT, supra note 125, at 2.
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relevant international obligations that promoted the practice of street vending or
supported the rights of street vendors; and a long list of decisions on street vending
from Indias Supreme Court and from various High Courts. National schemes
including the Jawaharlal Nehru National Urban Renewal Mission (JNNURM),
the Rajiv Awas Yojana (RAY), the Rajiv Rinn Yojana (RRN), the National Urban
Livelihoods Mission (NULM), and the recently launched Housing for All (Urban)
Mission, all have a bearing on how urban governance addresses street vending.
The NULM Mission Document, for example, explicitly focuses on urban street
vending as a measure of urban poverty alleviation.147 Each State in India also has
a wide array of State-level schemes, which along with a few city-level schemes,
adds to the bewildering interlegality and jurisdictional overlaps that characterize
the governmentalization of street vending in India.
With regard to state-level laws and policies, as of March 2013, five states
Jharkhand, Arunachal Pradesh, Mizoram, Madhya Pradesh and Rajasthan - had
already enacted State level legislation on street vending whereas one other state
Chhattisgarh had street vending specific Bye-laws under the relevant municipal
Act.148 As of June 2013, at least one other state (Orissa) had a specific urban street
vendors policy document, and at least one other state (Andhra Pradesh) had a
publicly available draft bill on street vending.149 With regard to national policies,
147 Street vendors constitute an important segment of the urban population at the bottom of the
pyramid. Street vending provides a source of self-employment, and thus acts as a measure of
urban poverty alleviation without major Government intervention. They have a prominent
place in the urban supply chain and are an integral part of the economic growth process within
urban areas. NULM would aim at facilitating access to suitable spaces, institutional credit, social
security and skills to the urban street vendors for accessing emerging market opportunities.This
component aims at skilling of street vendors, support micro-enterprise development, credit
enablement and pro-vending urban planning along with supporting social security options for
vulnerable groups such as women, SCs/STs and minorities. Up to 5 percent of the total NULM
budget will be spent on this component. See GOVERNMENT OF INDIA: MINISTRY OF HOUSING AND
URBAN POVERTY ALLEVIATION, NATIONAL URBAN LIVELIHOODS MISSION: MISSION DOCUMENT 7, 820 (2013).
148 LOK SABHA SECRETARIAT, supra note 125, at 3.
149 Legislative Brief The Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Bill, 2012, PRS LEGISLATIVE RESEARCH, 6 (2013), which provides summary details (in appendix)
about the Odisha Urban Street Vendors Policy 2012 and the Draft Andhra Pradesh Street
Vendors (Protection of Livelihood and Regulation of Street Vending) Bill 2011.
150 See MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, NATIONAL POLICY ON URBAN STREET
VENDORS 2009 (2009); MINISTRY OF HOUSING AND URBAN POVERTY ALLEVIATION, NATIONAL POLICY
ON URBAN STREET VENDORS 2004 (2004).
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the National Policy on Urban Street Vendors, 2009 revised and updated the older
2004 National Policy on Urban Street Vendors.150 While both policy documents
recognised the importance of natural markets, and explicitly stated that street
vending provided meaningful employment and valuable products and services to
a wide range of persons, the 2009 policy documents marked several advancements
over the older 2004 policy. While the 2004 policy considered spatial planning
norms strictly in terms of vending zones and non-vending zones, the 2009 policy
advocated free-vending zones, restricted-vending zones, and no-vending zones.
Second, the 2009 policy clarified the three different types of street vendors
(stationary, peripatetic, and mobile), and provided detail and clarity as regards
policy imperatives pertaining to peripatetic and mobile vendors. Third, the 2009
policy introduced clarity on the principles for determining quantitative norms
for street vendors through the introduction of holding capacity terminology.
Fourth, while the 2004 policy was unclear on licensing and its relation to vendor
registration, the 2009 policy clarified that licensing pertains to site/space allotment
for stationary vendors whereas registration applies to all kinds of vendors. Fifth,
the 2009 policy clarified the provisions in the 2004 policy as regards the
composition, duties and functions of the Town Vending Committees. Finally,
the 2009 policy clarified the uncertainty relating to planning authority terminology
in the 2004 policy through the use of the defined term local authorities. Apart
from these changes, the 2009 policy improved upon the 2004 policy on a number
of related other areas: provision of civic facilities, registration procedures,
registration fees, collection of revenue, eviction, relocation, confiscation,
organisation of vendors, participative processes, public health and hygiene, selfregulation, credit and insurance, rehabilitation of child vendors, education and
skill development, housing, social security, monitoring and review, dispute
settlement, and capacity building. Despite these detailed provisions, the policy
pertaining to urban street vending was rarely followed in spirit and many
governmental authorities remained unaware of their basic obligations as required
by these policy prescriptions.151
Legal restrictions on the right to street vending are to be found in a wide variety
151 For useful overviews, see Sinha & Roever, supra note 139; Cheryl Deutsch, Implementing the
National Policy on Urban Street Vendors: A State-by-State Status Report, YUVA (May 2009);
Final Report of the National Workshop on Debating the National Policy on Urban Street Vendors:
A Trans-City Interrogation, URBAN RESEARCH AND POLICY PROGRAMME, NATIONAL INSTITUTE OF
ADVANCED STUDIES, BANGALORE, (August 13, 2012).
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of municipal, state and national laws and schemes (including police laws, health
laws, food safety laws, public order laws, town planning laws, traffic laws, etc.)
the legal positions varies from municipality to municipality, city to city, and state
to state.152 Anjaria, for example, points out how sections 312, 313, and 314, in
particular, of the Mumbai Municipal Corporation Act, 1888 were relied upon by
Mumbais municipal corporation in response to public interest litigations
challenging the eviction of hawkers and pavement dwellers in Mumbai in the
early 1980s.153 Section 312 of the Mumbai Municipal Corporation Act, 1888
prohibits structures or fixtures which cause obstruction in the streets, Section 313
prohibits (except with written permission of the municipal Commissioner) the
placing or depositing on any street of any stall, chair, bench, box, ladder, bale or
other thing so as to form an obstruction thereto or an encroachment thereon,
and Section 313A and Section 313B prohibit the sale of any article or service in
any public place or in any public street without a license granted by the
Commissioner. Further Section 314 of the Act enables the Commissioner to remove
without notice anything erected, deposited, or hawked in contravention of Sections
312 and 313, and Section 471 enables the Commissioner to fine anyone who
contravenes these sections. Many states and cities across India have laws that are
similar to the Mumbai municipal legislation see, for example, Sections 287, 288A,
288B, 288C, and 288D of the Karnataka Municipal Corporation Act, 1976.
Further, police laws in most cities and states (see for example, Sections 102 and
117 of the Bombay Police Act, 1951 or Section 92 of the Karnataka Police Act,
1963) empower the police to fine unlicensed street vendors. Finally, Section 283
of the national-level Indian Penal Code, 1860 criminalizes danger, obstruction or
injury to any person in any public way or public line of navigation and Section
201 of the national-level Motor Vehicles Act, 1988 provides for a penalty for
anyone who keeps a disabled vehicle on any public place, in such a manner, so as
to cause impediment to the free flow of traffic. While many of these laws continue
152 For an overview of some of the municipal, city and state level laws applicable to street vending,
see NASVI, STREET VENDORS: HANDBOOK ON LAW, POLICY AND JUDGMENTS (2012); Darshini
Mahadevia, Suchita Vyas, Alison Brown & Michal Lyons, Law, Rights and Regulation for Street
Vending in Globalising Ahmedabad, WORKING PAPER 1: LAW, RIGHTS AND REGULATION IN THE
INFORMAL ECONOMY ESRC-DFID RESEARCH PROJECT (July 2012); BHOWMIK, supra note 124;
See also, Sinha & Roever, supra note 139.
153 Jonathan Shapiro Anjaria, Street Hawkers and Public Space in Mumbai, 41 ECONOMIC & POLITICAL
WEEKLY 2140-2146 (May 27, 2006), at 2140.
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to exist even after the passage of the national street vending legislation in 2014, the
exact scope of their continued operation remains unclear and therefore requires
careful analysis and elaboration.
It should also be noted that India is a party to several international agreements
relevant to the regulation of street vending including the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), the
Convention on the Rights of the Child (CRC), the International Convention on
Civil and Political Rights (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR), and over forty two International Labour
Organisation (ILO) Conventions that (should) influence executive and judicial
interpretation and have an enforceable effect when there is a lacuna in the domestic
law on the point.154
The enactment of the national legislation in 2014 followed a long series of judicial
pronouncements. The heightened momentum behind a national street vendor
legislation in recent times traces back to October 2010 when a Division bench of
the Supreme Court of India (Justice G.S. Singhvi and Justice A.K. Ganguly) in
Gainda Ram v. MCD reiterated that the right to street vending was a fundamental
right protected under Article 19(1)(g) of the Constitution of India.155 Significantly,
the Supreme Court in Gainda Ram v. MCD also held that this right could be
reasonably restricted only through a law (and not through governmental/municipal
schemes), and therefore mandated that legislation be enacted by the appropriate
Government by 30th June, 2011.156 While a legislation was not enacted by 30th
June, 2011, a Division Bench of the Supreme Court (Justice G.S. Singhvi and
154 For greater detail on international human rights norms relevant to protection of street vendors
in India, see Working Paper Developing National Street Vendor Legislation in India: A
Comparative Study of Street Vending Regulation, TRANSNATIONAL DEVELOPMENT CLINIC JEROME
N. FRANK LEGAL SERVICES ORGANIZATION -YALE LAW SCHOOL, 11, 12 (January 2011).
155 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraph 77. The fundamental right of street
vendors to carry on business on public streets under Article 19(1)(g) of the Constitution of India
had been articulated by the Supreme Court in earlier decisions including Saudan Singh v. NDMC,
(1992) 2 SCC 458; Sodan Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155;
Bombay Hawkers Union v. Bombay Municipal Corporation, (1985) 3 SCC 545; Olga Tellis v.
Bombay Municipal Corporation, (1985) 3 SCC 545.
156 Gainda Ram v. MCD, (2010) 10 SCC 175, at paragraphs 77, 78.
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Justice V. Gopala Gowda) in 2013 once again considered the matter of street
vending in India in Maharashtra Ekta Hawkers Union v. Municipal Corporation,
Greater Mumbai, and directed that the National Policy on Urban Street Vendors,
2009 should be implemented throughout the country. This 2013 judgment excerpts
the salient provisions from the 2009 policy, issues a series of remarkable directions
for the time-bound implementation of the policy (including a request to the Chief
Justices of the High Courts to nominate a Bench to deal with the cases filed for
implementation of the 2009 Policy and disputes arising out of its implementation),
and clarifies that the 2009 policy and the directions contained in the judgment
shall apply to all the municipal areas in the country and shall remain operative till
an appropriate legislation is enacted by Parliament or any other competent
legislature and is brought into force.157 In so doing, the Supreme Court also
vacated the somewhat oppressive 15 conditions and restrictions on stationary street
vendors in Mumbai that had been articulated in the 2003 Maharashtra Ekta
Hawkers Union judgment (many of these conditions trace back to Mumbai
Municipal Corporations scheme for the licensing of hawkers initially proposed
on 6 May, 1983).158 These 15 conditions and restrictions that had been reiterated
by the Supreme Court in 2003 included: 1) spatial restrictions on foothpath vending
(non-obstruction of an area of at least 1metre x 1metre on all foothpaths where
hawking exists, hawking permitted only on one side of the road); 2) prohibition
on stalls, tables, stands, handcarts, and any other such things and structures;
3) prohibition on hawking within 100 metres from any place of worship, holy
shrine, educational institutions and hospitals, or within 150 metres from any
municipal or other markets or from any railway station, or on footbridges and
overbridges; 4) prohibition on hawkers creating any noise or playing any
instrument or music for attracting the public or the customers; 5) prohibition on
the cooking of food; 6) limitation of hawking to between 7.00 a.m. and 10.00
p.m.; 7) reiteration that hawking was to be on the basis of a fixed fee to be prescribed
157 Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, (2014) 1 SCC
490, at paragraphs 16, 17.
158 This scheme was initially drafted during the pendency of the hawkers first unsuccessful challenge
to the constitutionality of the provisions of 313, 313-A, 314(3) and 497 of the Mumbai
Municipal Corporation Act, 1888. See Bombay Hawkers Union v. Bombay Municipal
Corporation, (1985) 3 SCC 545.
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by the municipal corporation; 8) requirement that hawkers would extend full

cooperation to the municipal conservancy staff for cleaning the streets and footpaths
and also to the other municipal staff for carrying on any municipal work;
9) prohibition of hawking on streets less than 8 metres in width; 10) requirement
that the municipal corporation would grant photo-licenses which are to be displayed
by hawkers at all times; 11) stipulation that no more than 1 person in a family
would be given a license to hawk; 12) prohibition on the vending of costly items
(example, electrical appliances, video and audio tapes and cassettes, cameras, phones
etc.) and the added stipulation that any hawker found selling such items must
have her/his license cancelled; 13) stipulation that hawking licenses would be issued
for 1 year and the requirement that the discretion to not grant a license in the
hawking zone would be exercised reasonably and in public interest; 14) the
requirement of placing any proposed alterations in the scheme regulating hawking
before a court-constituted Committee who would decide taking into consideration
the views of all concerned including the hawkers, the Commissioner of Police
and members of the public or an association representing the public, and; 15) the
expectation that citizens and shopkeepers would assist ward officers and the police
in keeping non-hawking zones/areas free from hawkers.159 The court further
clarified that even mobile hawkers shall require to obtain a licence on payment
of prescribed fees and display that licence on their shirt/coat at all times. Such
hawkers will be allowed even in residential areas and areas where there are no
shopping lines. They shall not sell costly items and will only vend articles of
immediate requirement i.e. articles of convenience shopping. They shall not hawk
within 100 meters of any place of worship, holy shrine, educational institutions
or hospital or within 150 meters of any municipal or other markets or from any
railway station.160 Following the 2013 decision of the Supreme Court in
Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, all
of these conditions were replaced by the more nuanced provisions of the 2009
policy on urban street vending.
159 Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, AIR 2004 SC
416, at paragraph 14.
160 Id., at paragraph 18.
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The 2013 decision of the Supreme Court was the latest major development in a
long series of judicial pronouncements spanning over five decades where the
Supreme Court had considered the legal status of street vending and the precise
contours of the rights implicated in the phenomenon of street vending and its
governmental regulation.161 As long back as 1954, the Supreme Court of India had
held that though all public streets and roads in India vest with the State, the State
holds them as trustees on behalf of the public.162 The decision of the Madras High
Court in M. A. Pal Mohammed v. R. K. Sadarangani represents a singularly
sophisticated judicial treatment of the rights of street vendors in cities when
balanced with the rights of other citizens and users of public streets.163 Curiously
enough, in this case, the former Union Minister for Finance, P. Chidambaram
(then a rising lawyer at the Madras High Court) represented the shop-keepers of
161 See Pyare Lal v. New Delhi Municipal Committee, AIR 1968 SC 133; Olga Tellis v. Bombay
Municipal Corporation, (1985) 3 SCC 545; Bombay Hawkers Union v. Bombay Municipal
Corporation, (1985) 3 SCC 545; MCD v. Gurnam Kaur, (1989) 1 SCC 101; Sodan Singh v.
New Delhi Municipal Committee, (1989) 4 SCC 155; Saudan Singh v. NDMC, (1992) 2 SCC
458; Ahmedabad Municipal Corporation v. Nawab Khan, (1996) 11 SCC 123; Gainda Ram v.
MCD, (1998) 1 SCC 188; Romesh Chander v. Imtiaz Khan, (1998) 4 SCC 760; Sarojini Nagar
Market Shopkeepers Association v. NDMC, (2000) 10 SCC 341; Navi Mumbai Municipal
Corporation v. Navi Mumbai Hawkers and Workers Union, (2002) 10 SCC 369; Maharashtra
Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai, AIR 2004 SC 416; Sudhir
Madan v. MCD, (2007) 7 SCR 1; Patri Vyapar Mandal Delhi v. MCD Town Hall, (2009) 12
SCC 475; Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater Mumbai,
(2009) 17 SCC 151; Maharashtra Ekta Hawkers Union v. Municipal Corporation, Greater
Mumbai, (2009) 17 SCC 231; Gainda Ram v. MCD, (2010) 10 SCC 175. Apart from these
leading decisions, several other Supreme Court decisions and a large number of High Court
judgments have also considered the normativity, legality, history, aesthetic impact, and desirability
of street vending in specific contexts in urban India this essay has not been attempted to trace
all these decisions and their cumulative impact, and hopefully, this will be carried out in future
work on this topic.
162 Saghir Ahmad v. State of UP, AIR 1954 SC 728, which referred to and approved the law on this
point as contained in an earlier decision of the Madras High Court in G. S. S. Motor Service v.
State of Madras, 19521 2 M. L. J. 894. The law on this point as recognized in Saghir Ahmad v.
State of UP was subsequently relied upon by Justice Sharma of the Supreme Court in Sodan
Singh v. New Delhi Municipal Committee, (1989) 4 SCC 155.
163 AIR 1984 Mad. 32. Paragraph 30 of Justice Sathidevs judgment states: It is claimed by shopowners that this trade is a public nuisance. Hawker trade, so long as it is regulated in a proper
manner by concerned public authorities, could never be a public nuisance. Rather, general public
by and large, are not only attracted by this type of trade, but look forward to it for more than one
reason. Shorn of mounting overheads which assume alarming proportions when goods are sold
in sophisticated shops, the same type of goods are sold for reasonable prices with less percentage
of profit. Even traders and manufacturers look to hawker trade to dispose of their accumulated
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Netaji Subhash Chandra Bose Road and Rattan Bazaar in Chennai in their
(eventually unsuccessful) case against the street vendors. The constitutional position
in India, briefly summarised, seems to be that street vending is an enforceable
fundamental right under Article 19(1)(g); this right is however subject to existing
or new laws that impose in the interests of the general public, reasonable restrictions
on the exercise of the right in accordance with Article 19(6) of the Constitution of
India.164 The major difference in the thrust of the 2010 Gainda Ram judgment
and the 2013 Maharashtra Ekta Hawkers Union judgment on the one hand and
stocks, which they cannot sell, because either the design is not in vogue or the demand for such
type of goods no longer exists, or due to rejection of goods by foreign buyers they could not be
exported but still of good quality etc. Furthermore, when vegetables, fruits, flowers are required,
general public invariably look forward to a hawker rather than go in for such stuff in shops,
which are unreasonably expensive. The economic condition of people is such that they look
forward to hawkers, who alone could sell for lesser price, the type of goods carrying a quality
which would suffice their needs and aspirations. Quite often the shop owner, before whose shop
the hawker is trading, depends on him for clearance of his accumulated stock, for a small margin
he may earn. Even a shop owner who complains about the existence of hawkers, as he returns
home buys his other household requirements from these hawkers. In many leading cities in the
world on certain days in a week, the vehicular traffic in the earmarked street is prohibited, and
hawkers congregate, and public in large numbers gather to buy their requirements. Hence it is
not as if this type of trade is found only in India. It could never be characterised as an illegal or
unethical trade. Mainly because public authorities have failed to regulate their locations, it has
resulted in a grievance being made by shop-owners, as if it is a trade that should be excluded. If
regulatory measures are introduced, bearing in mind the requirements of the public of free access,
public hygiene, public safety and the like, they can also prosper and the general public thereby be
benefited. If specific plots are allotted and they are confined to those portions, there could be no
conceivable objection for such a lawful trade to be carried out, particularly when it would provide
an honest livelihood for those who have meagre capital but have a keen desire to carry on a trade.
Once regulatory measures are introduced, it could never be a public nuisance. This insightful
decision has been referred to in the Sodan Singh case where V.M. Tarkunde (amongst others)
argued for the petitioners and Justice Sharmas judgment states that if properly regulated according
to the exigency of the circumstances, the small traders on the side-walks can considerably add to
the comfort and convenience of the general public, by making available ordinary articles of
everyday use for a comparatively lesser price. An ordinary person, not very affluent, while
hurrying towards his home after a days work can pick up these articles without going out of his
way to find a regular market. The right to carry on trade or business mentioned in Article 19(1)g
of the Constitution, on street pavements, if properly regulated cannot be denied on the ground
that the streets are meant exclusively for passing or re-passing and no other use. See Sodan Singh
v. New Delhi Municipal Committee, (1989) 4 SCC 155, at paragraph 16.
164 While a detailed analysis is not possible here, further constitutional guidance relevant to informality,
street vending, urban governance and the operation of the economic system may be sourced in
provisions including the Preamble, Articles 14, 19, 21, 38, 39, 39-A, 41, 42, 43, 43-A, 47, 48-A,
243-P to 243-ZG (read with the 12th Schedule), 265, 276, 301, 302; entries 1,2, 5, 6, 8, 26, 27, 28,
49, 52, 56, 60 of List-II (State List); and entries 2, 3, 15, 18, 20, 21, 22, 23, 24, 26, 33, 33-A, 34, and
43 of List-III (Concurrent List) of the Constitution of India.
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earlier decisions on street vending in India on the other seems to be with regard to
how these reasonable restrictions on the right to street vending are to be
interpreted. In the language of the 2010 and the 2013 judgments, we see, for the
first time, a recognition of the exclusionary tendencies of the neoliberal city, an
acknowledgment of the interstitial nature of street vending, and a genuine effort
towards the transformative possibilities of a realisable street vendors right to the
city. Unstated in the texts of the judgments and in the national laws, but critical
for any understanding of the imminent street vendors rights revolution in India,
is the story of how civil society organisations and sympathetic individuals provided
an unrelenting national and local support structure for legal mobilization and
legislative lobbying. It remains to be seen how the national legislation of 2014 will
be interpreted, and how, when implemented, it will contribute to or take away
from the possibilities of spatial justice in the context of urban India.165
One of the major challenges that the new national legislation on street vending
will face is in ensuring that fundamental rights are adequately and equally protected
across the country even as context-specific, citizen-driven and democratic urban
functionality proliferates in shaping our cities. In this context, Jane Jacobs now
classic 1961 work urges us to understand streets and sidewalks by how they actually
function rather than for their intended use.166 Her identification of street vendors
(amongst others) as the eyes on the street - who due to their long and continuous
presence on the streets are capable of preventing harm, detecting wrongs, and
providing immediate help when needed has most recently found support in the
JS Verma committees recommendations relating to how the Indian state should
165 For a recent overview of some of the problems in implementing the new legislation, see Sampath,
supra note 138. For critiques of the 2012 Bill and 2013 Bill, see Ayani Srivastava et al, Formalising
the Informal Streets: A Legislative Review of the Street Vendors (Protection of Livelihood and
Regulation of Street Vending Bill, 2012, 4 JOURNAL OF INDIAN LAW AND SOCIETY 247-274 (2014);
Rohan J. Alva, The Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Bill, 2013: Is the Cure Worse than the Disease, 35(2) STATUTE LAW REVIEW 181-202 (2014).
166 JACOBS, supra note 47.
167 Recommendation 17 states: Street vending should be encouraged to make the bus stops and
footpaths safe for communities and pedestrians, in addition to providing street food for the
common man. See GOVERNMENT OF INDIA, REPORT OF THE COMMITTEE ON AMENDMENTS TO
CRIMINAL LAW 421 (2013), http://www.prsindia.org/uploads/media/Justice%20verma%
20committee/js%20verma%20committe%20report.pdf.
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counter the menace of rape.167 Another major challenge for the national street
vending legislation will be to ensure that formalising street vending does not simply
result in greater surveillance, greater harassment, and increased bribe-seeking all
of which would simply encourage street vendors to transgress, evade and undermine
the applicable (legal and spatial) regulatory frameworks.168 Other challenges will
involve the fair rationing and allocation of limited high-value space, appropriately
incentivising street vendors to genuinely formalise their livelihood practices, the
norms for identification and de facto maintenance of no-vending and restrictedvending zones, the competence and integrity of decentralised administrative
mechanisms for implementation, and finally, the difficult task or harmonising
street vending laws with other laws (relating to crime, public order, transport,
city planning, etc.).169 Sufficient municipality level information on the ongoing
implementation of the new street vending law is simply not yet available to enable
a prediction on whether the law will effectively promote or suppress spatial justice;
the devil, so to speak, lies in the details of the plans, schemes, rules, orders, circulars,
guidelines etc. formulated by urban officials (and possibly, city dwellers) in response
to the requirements of the new law and the demands of potential beneficiaries and
other interested political participants.
Five discrete areas within the 2014 Act that immediately require greater clarity
are: 1) Conceptual clarity on the importance of scheme, rules, plan and
bye-laws within the Act and the relationship between these legal terms with
168 On this point, see PAUL STOLLER, MONEY HAS NO SMELL: THE AFRICANIZATION OF NEW YORK CITY
(2002); Arvind Rajagopal, The Violence of Commodity Aesthetics: Hawkers, Demolition Raids,
and a New Regime of Consumption, 19(3) SOCIAL TEXT, 91-113 (2001); Jonathan Shapiro Anjaria,
The Politics of Illegality: Mumbai Hawkers, Public Space and the Everyday Life of the Law, inSTREET
VENDORS IN THE GLOBAL URBAN ECONOMY, supra note 101, at 69-86.
169 See also Amlanjyoti Goswami, supra note 123, for a useful critique of the current street vending
law. For a useful comparative survey and a clear identification of areas of tensions and complexity
within street vending law in India, see Working Paper Developing National Street Vendor
Legislation in India: A Comparative Study of Street Vending Regulation, supra note 154.
170 See in particular 21, 36, 37, 38, and the First Schedule and the Second Schedule of the 2014
Act.
171 29(1) states: Nothing contained in this Act shall be construed as conferring upon a street
vendor any temporary, permanent or perpetual right of carrying out vending activities in the
vending zones allotted to him or in respect of any place on which he carries on such vending
activity.
59

regard to realising spatial justice and the right to the city in particular contexts;170
b) the potential conflict between Sections 12 17 (chapter titled rights and
obligations of street vendors) on the one hand and Section 29 on the other;171
c) the impact of Section 27 and Section 33 on other municipal laws, police laws
and crime laws in terms of the right to street vending;172 d) the interpretation of
public purpose in Section 18(1) of the Act;173 and e) the different roles of the
State Government, the Planning Authority, the Local Authority, the Town
Vending Committee, the Dispute Redressal Committee, and the relationship
between these entities in terms of regulating street vending activities and realising
spatial justice.
The 2014 legislation marks an important interstitial moment for urban street
vending in India insofar as hitherto fixed meanings and regimes are once again in
flux and the right to the city finds space for its iteration, manifestation, contestation,
and multiple realisations. A sensitive notion of urbanism, a heightened sense of
spatial justice, a democratic engagement with urban governance, and an institutional
adoption of the right to the city, might well lead us to Lefebvres revolution of
space on the horizon. Critical engagement with state and non-state efforts to creatively
and meaningfully translate the national law into municipal-level implementation
will be key to realising spatial justice and a transformative Indian modernity.
172 27 states: Notwithstanding anything contained in any other law for the time being in force,
no street vendor who carries on the street vending activities in accordance with the terms and
conditions of his certificate of vending shall be prevented from exercising such rights by any
person or police or any other authority exercising powers under any other law for the time being
in force and Section 33 states: The provisions of this Act shall have effect notwithstanding
anything inconsistent therein contained in any other law for the time being in force or in any
instrument having effect by virtue of any law other than this Act.
173 18(1) states: The local authority may, on the recommendations of the Town Vending
Committee, declare a zone or part of it to be a no-vending zone for any public purpose and
relocate the street vendors vending in that area, in such manner as may be specified in the scheme.
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THE POLITICS OF FINANCIAL REGULATION

Sanaa Ahmed*
In a world where the dominant dynamic of economic regulation is one
of deregulation, 1 financial-sector standards such as prudential
regulations, accounting standards, as well as the regulation of corruption,
securities, and money laundering have been ratcheted up and most
countries have complied meekly. Why?
The answer to this question lies in the how. This paper argues that the
increasing currency of global standards and regulations are an indication
of the pervasive nature of control exercised by the regulators. By setting
up a protective, technicality-centred discourse around financial
regulation, the regulators characterise it as an essentially technical and
apolitical matter, and use the characterisation to infer legitimacy for
themselves as disinterested and skilled technicians. It is argued that the
nature of regulation the structuring of a regulatory web, the
governance structures of regulatory institutions, as well as the
enforcement mechanisms deployed preclude any meaningful
*
1
Sanaa Ahmed is a journalist who writes on legal and political issues. She holds an LLM from the
University of Warwick and an LLB from the University of Karachi.
I rely on Braithwaite & Drahos understanding of regulation as an umbrella term for rules,
norms, standards and guidelines. Financial regulation, as Braithwaite & Drahos see it, pertains
primarily to the regulation of banks and non-bank financial institutions, money laundering,
companies and securities firms, insurance, and taxation. They do recognise, however, that the
procedural application of such regulation also brings standards related to accounting, auditing,
corporate governance, and payments systems into the ambit of financial regulation. Comparatively,
the joint IMF-World Bank Financial Sector Assessment programme also adds data dissemination,
fiscal transparency, insolvency and creditor rights, monetary, and financial policy transparency
to this list as standards and codes that must be monitored for effective regulation of financial
systems. Braithwaite & Drahos use of the term deregulation contrasts with that of other
authors such as Hardt and Negri who argue that free markets do not feature less political control
and intervention but merely those of a different kind. The process would then qualify as reregulation. See JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION (2000); MICHAEL
HARDT & ANTONIO NEGRI, MULTITUDE 168 (2004).
61
accountability. This paper submits that this control is symptomatic of a

new kind of political control and contends that its aims must be
interrogated.
INTRODUCTION
The most remarkable feature of global financial regulation2 is the difficulty in
holding any one institution or regulator responsible for it. There is a vast and
rich body of literature interrogating the normative commitments, the underlying
ideology, and the politics informing the governance of the global political
economy.3 Contemporary scholarship has problematised various aspects of global
economic governance, its components international trade and investment,
development, and debt as well as its implications for the subaltern: who is
regulating whom, on whose behalf, why and how, and to what effect. In each
instance, the implementing institutions and the authors of regulation, such as the
World Trade Organisation (WTO), International Financial Institutions (IFIs) or
transnational corporations, as well as the interests they represent, are easily
identifiable. There is a distinct body of rules with clearly defined consequences
for non-compliance. There is a fierce debate on and contestation of the regulatory
power wielded by these organisations, as well as their enforcement capabilities.
Finally, the debilitating economic, social, and political consequences of these
decisions are widely recognised. Animating these debates are concerns regarding
the accountability, legitimacy, and transparency of these institutions and their
decision-making processes, as well as the consequent impact on national sovereignty
and democracy in the developing South.
Braithwaite & Drahos define the globalisation of financial regulation as the spread of some set
of regulatory norms. See BRAITHWAITE & DRAHOS, supra note 1, at 8. As they see it, globalisation
operates at the level of specific rules and at the level of general principles. Distinguishing principles
and standards are the facts that standards are used as measures of conduct and can have a high
level of specificity. See BRAITHWAITE & DRAHOS, supra note 1, at 19. The scope of this article,
however, precludes such a distinction.
See generally Saskia Sassen, Sundhya Pahuja, Sol Picciotto, Stephen Gill, David Schneiderman,
and James Thuo Gathhi. Global political economy here is understood as the interaction of the
market and actors such as states, multinational corporations and international organisations. See
ROBERT GILPIN, GLOBAL POLITICAL ECONOMY: UNDERSTANDING THE INTERNATIONAL ECONOMIC
ORDER (2001).
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Despite being a crucial component of international trade, global financial regulation

has thus far escaped similar, significant, and sustained problematisation.4This is
partly due to its nature it is hard to identify a single author and locate specific
interests within multiple global regulatory bodies, harder to contest voluntary
standards, and meaningless to resist where there is neither overt enforcement nor
penalty.
However, the most significant impediment to meaningful debate about financial
regulation stems primarily from the protective discourse surrounding it. This
discourse characterises financial regulation as an essentially technical and apolitical
matter. Consequently, global regulators and standard-setting bodies emerge as
disinterested and skilled technicians, not established political actors with wellentrenched interests who assert power to achieve their own objectives.
This discourse then persuades the few critics of financial regulation, as well as the
regulated, to side with the regulatory agencies. Most seem convinced that regulation
is good, more regulation is better, and the drafting of necessary technical
procedures to prevent financial contagion5 or systemic risk6 is best left to the
global experts. Dissent is mostly limited to the form transparency, accountability,
4
5
For useful discussions on financial regulation, see generally, Julia Black, Chris Brummer, Emily
Lee, Rolf Weber and Antonio Segura-Serrano.
Contagion occurs when cross-border capital flows transmit economic shocks. Contagion may be
divided into two forms: economic contagion, which occurs through trade and investment flows,
and pure contagion, which arises from changing risk appetite among investors and can lead to
reverse capital flows from emerging markets. See KERN ALEXANDER ET AL., GLOBAL GOVERNANCE
OF FINANCIAL SYSTEMS: THE LEGAL AND ECONOMIC REGULATION OF SYSTEMIC RISK (2005).
Precise definitions of systemic risk are hard to come by, although, as the phrase suggests, the
phenomenon has to do with the risk posed to the functioning of the financial system. Wilmarth,
for example, defines it as the risk that the failure of a major financial institution will severely
disrupt the financial system and will have adverse spill over effects on the general economy. See
Arthur E. Wilmarth, Controlling systemic risk in an era of financial consolidation, (2002),
http://www.imf.org/external/np/leg/sem/2002/cdmfl/eng/wilmar.pdf; comparatively,
Alexander et al. define systemic risk as arising from the mispricing of risk in financial markets,
which often means that risk is under-priced in relation to its costs and that the under pricing of
risk results in too much of it being created in financial markets can arise from problems with
payment and settlement systems or from some type of financial failure that induces a
macroeconomic crisis. See ALEXANDER ET AL., supra note 5, at 23. Systemic risk inherent to
international banking includes global systemic risk (the risk that the failure of one significant
bank will cause the collapse of the entire banking system); safety and solvency risks that arise
63
et al7 rather than the substance of regulation; to the procedural difficulties in

operation rather than governance itself.8
This paper argues that this two-fold convergence between various national
regulatory regimes, as well as the alignment of the proponents and criticsis
symptomatic of a carefully concealed and insidious power. To quote Hardt and
Negri in a different context, [not] less political control but merely a different
kind of political control.9
The study of global financial regulation as a technique of power is fascinating,
precisely because the regulators, regulations, and the processes of decision-making
are as flawed as those of international trade, or multilateral lending. But, a
prudential regulation10 proposed by the Basel Committee on Banking Supervision
(Basel Committee) still lacks the emotive resonance or the proclivity towards being
contested of a WTO-endorsed TRIPs regime or an IMF-sponsored conditionality.
The illegitimacy of the incumbent regime has not impeded, let alone prevented,
increasing convergence of minimum regulatory standards.
However, the increasing currency of financial-sector standards, such as prudential
regulations, accounting standards, as well as the regulation of corruption, securities,
and money laundering are not a testament to their inherent salubriousness but to
7
8
9
10
from imprudent lending and trading activity, and the risks to depositors through the lack of
adequate bank insurance. Systemic risk matters because high levels can lead to bank failures,
which can, in turn, pose a threat to the financial system and the broader economy. This is because
banks play an important role in payments and clearing systems; bank failures have an underlying
potential for a bank run; and the threat of contagion due to the interconnected nature of banks.
Ex ante measures to manage systemic risk include capital adequacy requirements, large exposure
limits and limitations on lending while ex post measures include deposit insurance and the lender
of last resort function.
See, for example, Michele Frantianni & John Pattison, International Financial Architecture and
International Financial Standards, 579 ANNALS AM. ACAD. POL. & SOC. SCI. 183 (2002).
For a lucid account of the procedural problems with global financial governance, see Jonathan
Ward, The New Basel Accord and Developing Countries: Problems and Alternatives, CAMBRIDGE
UNIVERSITY (2002), http://www.cerf.cam.ac.uk/publications/files/Ward04.pdf, and ALEXANDER
ET AL., supra note 5.
HARDT & NEGRI, supra note 1, at 168.
The purpose of prudential regulations is to help banks and other non-bank financial intermediaries
manage various types of risk such as credit, concentration, market, settlement, liquidity and
operational risk. ALEXANDER ET AL., supra note 5, at 24.
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the pervasive nature of control exercised. This discipline is both external (as enforced
by the official sector11 and the market) and internal (the self-disciplining involved
in complying with international best practices12). Compliance is secured through
the use of sophisticated disciplinary techniques such as watch listing, 13
conditionality, 14 and intrusive surveillance, 15 not unwieldy and obvious
enforcement mechanisms such as trade sanctions, or withheld loans.
This paper is structured into three sections. Part 1 advances the normative argument
of why financial regulation qualifies as a political, and not a technical issue, while
Part 2 offers a historical overview of the evolution of global financial markets and
regulation. Part 3 then moves into a discussion of the specific features of
contemporary regulation that enable regulators to exercise stringent control and
effect the global harmonisation of rules, regulations and standards.It is argued
that the unproven utility of financial regulation, the democratic deficit in the
devising of regulation, coupled with the pervasive nature exercised by regulators
make it necessary to examine whether global financial regulation is really as
worthwhile a project as it is made out to be.
I. FINANCIAL REGULATION: POLITICAL OR TECHNICAL?

Financial regulation matters. Regulatory rules for financial intermediaries define
the relationship between the stock of financial assets and overall liquidity. This,
in turn, affects aggregate demand, output, employment, and the spending ability
of individuals, firms, and governments.16 A bank forced to adhere to higher capital
adequacy requirements17 lends less to individuals, businesses, and the government
for ploughing into the productive economy. Fewer goods are produced, fewer
jobs are created, and fewer roads are built. A bourse with overly stringent criteria
for listing limits the ability of firms to raise capital, thereby constraining the
11
12
13
14
15
The phrase refers to the IMF and World Bank as distinguished from the private sector.
Antony Anghie, Time present and Time Past: Globalisation, International Financial Institutions
and the Third World, 32 N.Y.U. J. INTL L. & POL. 243, 286 (2000).
BRAITHWAITE & DRAHOS, supra note 1, at 28.
Sundhya Pahuja, Technologies of Empire: IMF Conditionality and the Reincription of the North/
South Divide, 13 LEIDEN JOURNAL OF INTERNATIONAL LAW 749 (2000).
ALEXANDER ET AL., supra note 5, at 36.
65
amount they consume and produce, the number of people they employ, and so
on. A country featured on the Financial Action Task Force (FATF) blacklist
finds it difficult to make payments to its trading partners,18 which limits the amount
of capital goods it can import. Financial factors are thus at the core of overall
economic performance. 19 Consequently, as Picciotto argues, they have
(re)distributional consequences or implications20 far beyond what is envisaged
by a technicist view of social management.21
Contemporary global financial regulation is problematic on both the conceptual
and the operational level. On the conceptual level, as Picciotto reasons, regulations
which impact livelihoods, health and living standards are necessarily political in
character. As such, assigning their formulationto an unelected technical body
runs counter to democratic practices.22 Secondly, despite deep official sector inroads
on state sovereignty in many developing countries, economic policy formation
and finance ministries are still essentially political. Why should financial policies
and central banks then be segregated from politics, especially when regulation
affects the prospects of democracy as well?23
16
17
18
19
20
21
22
23

A capital adequacy ratio is the amount of capital that financial institutions are required to
maintain against their outstanding loans. This is not to be confused with reserve requirements,
which are the amount of money a financial institution must hold against the deposits made by
its customers. The former is a provision against risk while the latter is a provisioning for
expected losses (for example, bad loans). CARs are prescribed by the Basel Committee, while
the reserve requirements are usually specified by central banks.
This is because dollar payments around the world are cleared through New York and banks
there are discouraged from doing business with FATF-categorised Non Cooperative
Countries and Territories (NCCTs) or otherwise undesirable countries. For example, a
Citibanker confessed that his bank was actively discouraging its people from opening
correspondent accounts from Pakistan even though Pakistan is not an NCCT. Interview
with an employee of Citibank, in London, (January, 2005).
Sol Picciotto, Liberalisation and Democratisation: the Forum and the Hearth in the Era of
Cosmopolitan Post-Industrial Capitalism, 63 LAW & CONTEMP. PROBS. 157, 177 (2000).
Id., at 160.
These include the principles of transparency, accountability and legitimacy etc.
Robert P. Delonis, International Financial Standards and Codes: Mandatory Regulation
Without Representation, 36 N.Y.U. J. INTL L. & POL 563, 623 (2004). She is referring
particularly to the water riots in Cochabamba.
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II. THE EVOLUTION OF GLOBAL FINANCIAL MARKETS

The justification for the depoliticised nature of financial regulation can be located
in the process of its historical evolution. The rapid globalisation of banks and
financial markets during the 1960s and 1970s were not accompanied by a
corresponding harmonisation of regulatory standards24 until the German bank,
Bankhaus Herstatt folded in 1974.
The demise of the Bretton Woods system in the early 1970s was significant for
the banking sector in that it resulted in the privatisation of foreign exchange
risk.25 The private sector, in turn, pressured governments for greater liberalisation
and fewer capital controls. But Herstatt demonstrated the downside of this greater
interconnectedness.26 The bankwas overexposed in the foreign currency market
and speculative activities regarding the movement of the dollar rate created crippling
losses. Had the German regulators not decided to honour Herstatts obligations,
five banks in the US would have folded as a result.27 At the same time, the BritishIsrael Bank in London was closed for insolvency problems and the Franklin
National Bank in the US followed suit soon after.28 Like the German authorities,
the US Federal Reserve also had to step in to guarantee the banks failed shortterm forex commitments in order to prevent the crisis from spreading.29 Systemic
risk and contagion had been born.
The bank failures were widely attributed to the lack of an adequate regulatory
structure which could protect against financial risk.30 The cross-border lending
24
25
26
27
28
29
30

In the absence of a fixed exchange rate system, banks with a high degree of concentration in the
area of foreign trade payments were vulnerable to the vagaries of the foreign exchange (forex)
markets. Bank failures in mature economies, BANK FOR INTERNATIONAL SETTLEMENTS, BASEL, http:/
/www.bis.org/publ/bcbs_wp13.pdf. To minimise potential losses from forex dealings, banks
plumped for hedging strategies involving the diversification of assets into multiple currencies and
the creation of portfolios held in foreign and offshore jurisdictions. ALEXANDERETAL., supra note
5, at 22.
Fraitianni & Pattison, supra note 7, at 184.
For the period 1980-95, Fratianni & Pattison estimate an average rate of banking crises at 1.44
a year. Fraitianni & Pattison, supra note 7, at 184.
67
and borrowing activities of multinational banks had created a two fold problem.
First, since no single regulator had jurisdiction over the entire international banking
system,31 they found it difficult to manage systemic risk on their own.32 Secondly,
regulators usually had poor quality information regarding the international
operations of domestic banks.33
To address the collective action and information problems described above, the
G-10 regulators and central bankers met at Basel in 1975 to form the Basel
Committee for Banking Supervision. This was the first global standard-setting
body. The self-confessed initial aim was to close gaps in the supervisory net34
through international cooperation but the wider objective was to improve
supervisory understanding and the quality of banking supervision.35 These goals
were to be met by exchanging information on national supervisory arrangements;
improving the effectiveness of techniques for supervising international banking
business; and setting minimum supervisory standards in desirable areas.36 The
resulting Basel Concordat was a set of voluntary, legally non-binding, international
standards and rules of prudential supervision for the regulation of financial
institutions, payment systems and foreign exchange markets designed to apply
to just the G-10 countries.37
III. THE PRESENT FACE OF REGULATION: THINK LOCAL, ACT GLOBAL

Three aspects of contemporary global financial regulation require particular
explication: the politics informing their devise; the prevalent means of effecting
31
32
33
34
33
36
37

This is because of high transaction costs and undefined property rights. ALEXANDER ET AL., supra
note 5, at 34.
This was based on two basic principles: to ensure that no banking establishment escaped
supervision, and that this supervision is adequate. Apart from the decidedly criminal connotations
of the use of the word escape, it also needs to be remembered that first, Basel didnt apply to apply
all banks then and second, adequate was also decided by the G-10. A Brief History of the Basel
Committee, BANK FOR INTERNATIONAL SETTLEMENTS, http://www.bis.org/bcbs/history.pdf.
Id. (emphasis added).
Supra note 34.
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regulatory convergence; and the consequent impact on accountability. Each aspect

is discussed in greater detail in the sub-sections that follow.
First, the phrase think local, act global is employed in two senses here. First, it
refers to the politicisation of global regulation the transfiguration of a domestic
political agenda into a global one. In its second sense, it refers to the assumption
of global regulatory control by region-specific regulators and describes how that
control is exercised and propagated. Put another way, the devise of global
regulation is not a linear process and the assumption of worldwide standard setting
responsibilities by region-specific regulatory agenciesis just one part of that process.
Secondly, a significant method of effecting regulatory convergence has multiple
agencies simultaneously issuing similar, overlapping regulations that are more often
than not, replicas of each other. Enabling these processes are the governance
structures of these agencies, which show a preponderance of powerful members
from the global North. Also relevant here is a discussion of the multiple
enforcement mechanisms employed to give effect to the standards. It is the complex
interplay of all these factors simultaneously that makes global regulation possible.
The final sub-section elaborates on the fact thatthe combined operation of the
above also makes it impossible to enforce accountability in global financial
regulation and carries important consequences for global governance.
The Politicisation of Regulation
The USA and the Basel Committee are good examples of how domestic policy
imperatives can be brought to bear on global standards.The modus operandi for
the committee was to evolve an informal consensus on a best practice a
commitment the committee still honours and allow members the freedom to
implement it according to the peculiarities of their national systems.38 Although
the term best practice carries connotations of neutrality and technical superiority,
the standards and guidelines issued by the committee were as deeply politicised as
any other. The first illustration of how a best practice could be moulded according
to domestic political imperatives came in 1988.
The 1980s were a bad time for the banking industry in the USA. The Federal
Deposit Insurance Corporation had to resolve some 1,650 federally insured banks
and the Savings and Loans crisis of the early 1980s saw the failure of 1,320 financial
69
institutions.39 Widespread public agitation in the wake of these crises prompted

the US Congress to pass a law in 1983 requiring banking agencies to ensure that
all banks were adequately capitalised.40 The Savings and Loans crisis data suggested
that adequate was eight per cent of the outstanding loan amount and that was
the number the Congress endorsed.
The move allayed the fears of the electorate but made the banking constituency
extremely unhappy. American bankers argued that the mandatory capital adequacy
requirements placed them at a distinct disadvantage to foreign banks.41 The US
obligingly carried these concerns to the 1988 Basel Committee meeting and, despite
strong opposition from other countries, succeeded in foisting the higher standards
onto all members by a revision of the Concordat.42
The move was subsequently justified primarily in technical terms. Higher capital
adequacy requirements, the committee reasoned, would strengthen stability since
capital in international banks was being eroded at a time crises were increasing.43
Since the directive was worded in the language of neoliberalism the move was
projected to eliminate competitive inequality arising from differences in national
capital requirements44 even the secondary motive of maintaining the
competitiveness of US banks became more palatable.
This victory was important because it introduced finance trends that were to
characterise regulatory initiatives in subsequent years. First, it showed that global
39
40
41
42
43
44
The latter alone cost the government some 151 billion dollars in bailout packages. Supra note 25.
Accordingly, the Office of the Comptroller of the Currency and the Federal Reserve set minimum
capital requirements for the multinational banks. Id.
GILPIN, supra note 3, at2 75. This is because banks subject to higher capital adequacy requirements
have less money to lend than those with lower CARs. This, of course, means that the better
capitalised banks make less profit than the others.
GILPIN, supra note 3.
Interestingly, the implementation of the higher capitalisation requirements subverted the touted
objective of stability. The prescribed capital adequacy ratio for short-term loans was a significantly
lower two per cent of outstanding loans. As a corollary to this directive, most banks started
focusing on short-term lending which, apart from the economic detriment (economic growth
usually accompanies long-term, productive investments) also introduced more volatility into the
banking system through an increase in speculative activities and time mismatches between assets
and liabilities of borrowers (that is, loans would typically mature before the investments). Supra
note 34.
Supra note 34.
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regulation could be tailored to address localised concerns. Secondly, a proposal

for raising the bar regardless of the motivation behind it or its demonstrated
efficacy could always be presented as inherently beneficial and impartial advice.
Thirdly, the opposition could always be disarmed by citing safety-related issues.
Best practice was no normative ideal and financial regulation was rapidly evolving
into a technique of power that was cloaked in seeming neutrality.
These trends were revisited during the development of anti-money laundering
regulation. According to Braithwaite and Drahos, money laundering occupies
the top priority in the US scheme of globalised financial regulation.45 The authors
attribute this enthusiasm to the domestic priority of tackling the drug trade and
the political attractions of blaming foreigners.46 Further, they suggest that money
laundering has historically served as a convenient if coincidental catchall for
national security objectives as well as foreign policy imperatives.47 But during
the 1980s, most countries did not seem overly excited about devising anti-money
laundering measures,48 certainly not enough to initiate regulation. The USA pushed
the topic onto the Basel Committee as a subject worthy of regulation and eventually
drafted the Basel Statement of Principles on Money Laundering (approved by the
committee in 1988).49
45
46
47
48
49
BRAITHWAITE & DRAHOS, supra note 1, at 105. Money laundering outranks uniform accountancy
standards, harmonising tax, macroeconomic policy coordination and even capital adequacy for
banks, something the authors find somewhat shocking. BRAITHWAITE & DRAHOS, supra note 1,
at 142. Compliance with money laundering standards is more strictly monitored than other
financial standards. BRAITHWAITE & DRAHOS, supra note 1, at 106. Interestingly, however,
Delaware, Nevada and Montana in the US are still the biggest money laundering havens in the
world. JEFFREY ROBINSON, THE SINK 328 (2003).
The realist edge is that the US state gets domestic political kudos by painting the drug problem
as a foreign conspiracy to corrupt the US that must be fought as a war. BRAITHWAITE & DRAHOS,
supra note 1, at 105, 391.
The war on drugs was a convenient weapon against General Noriega and his ilk while the CIA
has an interest in being a major launderer of dirty money itself, while making it harder for the
competition to do so. BRAITHWAITE & DRAHOS, supra note 1, at 105. According to the authors,
a consequence of the militarization of the war on drugs under Nixon, Reagan and Bush was that
drug interdiction was subordinate to the foreign policy goal to the defeat of communism.
BRAITHWAITE & DRAHOS, supra note 1, at 390. Post 9/11, the comparable foreign policy objective
would probably be the defeat of terrorism.
Braithwaite & Drahos cite FATF figures stating that up until 1990, only six countries had chosen
to model the US practice of declaring money laundering a specific criminal offence. BRAITHWAITE
& DRAHOS, supra note 1, at 105.
BRAITHWAITE & DRAHOS, supra note 1, at 106. Significantly, the Basel principles predate the UN
Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
71
The Oyster of the Global Regulator50

The Regulatory Web
At the global level, responsibility for the creation of rules and standards is assigned
to several different organisations. The Basel Committee handles banking
supervision; the International Organisation of Securities Commissioners (IOSCO)
looks at securities and companies regulation; and the OECD-based Financial Action
Task Force (FATF) deals with money laundering. Even so, the lines of responsibility
are not as clear as in multilateral lending or international trade as these agencies
are not discrete legislative units.
The Basel Committee may have the banking portfolio but the WTOs General
Agreement on Trade in Services plays a growing role in financial sector issues as
do regional treaty arrangements such as the European Union.51 The Basel
Committee is actively involved in both derivatives and money laundering regulation
but a logical banking sub-field, the regulation of systemically important payments,
lies with the Committee on Payments and Market Infrastructures (CPMI), earlier
known as the Committee on Payments and Settlements System (CPSS).52 IOSCO
is responsible for securities and companies and regulates securities settlements
systems with the CPMI, but the corporate governance rules are drafted by the
OECD.53 The IMF and the World Bank, meanwhile, look on approvingly.Global
financial regulation is thus a dense web of influences54 with multiple regulators
for most areas.
50
51
52
53
54
With apologies to Shakespeare for the liberty taken with his Merry Wives of Windsor.
Although the WTO plays no role in setting domestic financial regulatory standards, the freetrade principles of the GATS may influence how other international organisations and standardsetting bodies devise international standards of financial regulation. Meanwhile, the EU regulatory
system has also come up with minimum harmonised standards for prospectuses for initial public
offerings, market abuse, and insider trading, as well as money laundering. ALEXANDER ET AL.,
supra note 5, at 9-10.
Committee on Payments and Market Infrastructures, BANK FOR INTERNATIONAL SETTLEMENTS,
http://www.bis.org/cpmi. The bifurcation is interesting because till 2009, the CPSS comprised
the same set of members as the Basel Committee the G10 central bankers. Delonis, supra note
23, at 590. In 2009, the list of members was expanded to 25, including, notably, Brazil, Russia,
India and South Africa.
List of Standards, Codes, and Principles, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/standards/scnew.htm
I owe the phrase to BRAITHWAITE & DRAHOS, supra note 1, at 13.
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This is problematic because the institutional overlap makes it impossible to hold

a single agency responsible for any piece of regulation. Further, while the
multiplicity of regulatory institutions implies a many voices approach to
regulation an indication of diversity and inherent salubriousness the practice
on ground sharply contradicts such notions. The global regulatory convergence
project was conceived in response to the demand of global capital for harmonisation
across jurisdictions and markets. As such, the replicatory efforts need to be seen
for the mutually legitimising exercises that they are.
Governance Structures
The epistemic community that steers financial regulation is a community of the
North.55 Nowhere is this clearer than in the institutional structures of the
regulatory agencies, and the Basel Committee is again a good example. As the
USA unilaterally commandeered the agenda at Basel, the committee too assumed
the mantle of global regulator/supervisor/standard-setter. In 1990, the Basel
Committee issued a supplement to the 1983 Concordat to improve the flow of
prudential information between supervisors globally56 not just between the
G-10. In 1992, certain principles of the Concordat were reformulated as Minimum
Standards, which other supervisors were subsequently invited to endorse.57 In
1998, the Basel Committee amended the Concordat to make it applicable to all
countries where banks conducted cross-border operations.58
Also worth remembering is that till 2009, the committee comprised the G10+359
central bank governors and national bank regulators. It can thus be seen as nonrepresentative and unaccountable on two counts. First, it excluded participation
by other countries; to date, membership can only be acquired via invitation, and
potential members are judged based on how important their national system is to
55
56
57
58
59

Supra note 34.
Supra note 34.
Supra note 34.
Present membership comprises 28 jurisdictions: Argentina, Australia, Belgium, Brazil, Canada,
China, EU, France, Germany, Hong Kong, India, Indonesia, Italy, Japan, Korea, Luxembourg,
Mexico, the Netherlands, Russia, Saudi Arabia, Singapore, South Africa, Spain, Sweden,
Switzerland, Turkey, UK and the USA. Membership, BANK FOR INTERNATIONAL SETTLEMENTS,
http://www.bis.org/bcbs/membership.htm.
73
international financial stability.60 Secondly, given the emphasis on the need for
independent central banks, the members are unaccountable to even those within
their domestic jurisdictions.
Although the committee has tried to involve non-member countries in various
aspects of the standard setting process,61 this involvement has remained limited to
consultation and the actual decision making remains controlled by the G10
countries.62 The coterie is renowned for their secretive decision-making and
over-reliance on personal contacts.63 Given its exclusivity as well as the lack of a
mandate from other countries, the committee, strictly speaking, has no business
devising rules for the world. But the committee located a mandate for itself in a
communiqu issued by the G7 Heads of State in 1997 that encourage[d] emerging
economies to adopt strong prudential standards and effective supervisory
structures. The Committee interpreted the G7 communiqu as authority for
it to devise global capital standards and other core principles of prudential
regulation for all economies where international banks operate[d].64 Even so, this
is unsatisfactory and insufficient authority for an agency that affects the lives of
the non-G10 countries as well. First, the regulatory initiative came from the G7,
not the emerging markets that were supposed to implement the same. Secondly,
the G7 effectively delegated an authority they did not possess.65
The securities markets are also beset with similar issues. The International
Organisation of Securities Commissioners (IOSCO) began in 1974 as an interAmerican regional association.66 The decision to go global was taken by the 11
North and South American members in 1983. The new organisation was intended
as a forum for the worlds regulators to meet, discuss and agree on policies and
60
61
62
63
64
65
66
Charter, BANK FOR INTERNATIONAL SETTLEMENTS, http://www.bis.org/bcbs/charter.htm.

This has been through the establishment of a Core Principles Liaison Group comprising 13 nonG10 countries (including India, Brazil, Russia and China) as well as by establishing close relations
with regional bank supervisory groupings such as the Offshore Group of Banking Supervisors.
Supra note 34.
ALEXANDER ET AL., supra note 5, at 42
That the separation between initiating and creating regulation further dilutes accountability is
another matter altogether.
History, INTERNATIONAL ORGANISATION OF SECURITIES COMMISSION, http://www.iosco.org/about/
?subsection=about_iosco.
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best practices. While IOSCO ranks higher than the Basel Committee on the
democratic scale it boasts 200 members from more than 110 countries67 it too
is still learning democratic decision-making. Up until 2012, for example, the task
of determining regulatory priorities and devising standards fell to the lot of the
IOSCO Technical Committee, which featured only 15 regulators from the worlds
most developed securities markets including the G10.68 While all members were
provided with the opportunity to voice their concern on all proposals, most of
the practical bargaining and shaping of issues took place in closed-door Technical
Committee meetings.69 Significantly, the meetings are off-limits for even other
IOSCO members. While all members were entitled to vote on proposals, in
practice, the decision of the Technical Committee was final. This was not only
because of the expertise of its members but also because of the fact that the issues
raised concerned the worlds leading financial markets.70
In 2012, the standard-setting functions of the Technical Committee were taken
over by the IOSCO Board, which features regulators from 34 jurisdictions
including several from the global South. But there is little to show whether and
to what extent decision-making is responding to the changes in governance
structures.
The FATF is similarly cliquish. It was established by the leaders of the G7 and the
president of the European Commission in 1989. Boasting a total of 16 members
drawn from the G7, the EC and eight other countries, FATF was to combat the
perceived threat posed by money laundering to financial stability.71Although the
number of members has since increased to 36, the global South is underrepresented
while the OECD contingent dominates.72 This is significant primarily because the
67
68
69
70
71
72
IOSCOs current membership list includes 200 ordinary, affiliate, and associate members.
Membership, INTERNATIONAL ORGANISATION OF SECURITIES COMMISSION, http://www.iosco.org/
about/pdf/IOSCO-Fact-Sheet.pdf.
ALEXANDER ET AL., supra note 5, at 58. For an exhaustive treatment of IOSCOs institutional
structure, see ALEXANDER ET AL., supra note 5.
Regulations, F INANCIAL ACTION TASK F ORCE, http://www.fatf-gafi.org/pages/aboutus/
historyofthefatf.
Interestingly, one of the criteria for membership listed on the FATF website is that the country
be of strategic importance. There is no explication as to what constitutes strategic importance,
Members and Observers, http://www.fatf-gafi.org/pages/aboutus/membersandobservers.
75
agency claims the regulatory ambit to safeguarding the global financial system
from money laundering and terrorist financing but has neitherthe representation
nor a mandate to match.73
Enforcement
The issue of enforcement should technically not arise. Global finance is governed
primarily by international soft law. As legally non-binding standards, principles
and rules that influence and shape state behaviour but do not fit into the traditional
categories of public international law and bi- or multilateral treaties,74 soft law
unlike hard law does not imply obligation.75 By definition then, soft law
precludes both enforcement and penalties for breach.76
Consequently, all the agencies referred to stress the voluntary nature of their
recommendations, guidelines or principles. The Basel Committee, for
example, insists that it does not have any formal supranational supervisory
authority and that itformulates its recommendations in the expectation that
individual national authorities will implement them.77
However, as Lichtenstein argues, the characterisation of a particular norm
embedded in a regulatory regime as either hard or soft does not matter. What
matters instead is the process of obtaining effectiveness , the methodology of
better international dealings and cooperation.78 And this seems to be the approach
taken by the regulators.
On the face of it, the Basel Committees emphasis on the role of individual
authorities and decentralised implementation of standards one echoed by both
IOSCO and FATF79 suggests that the process for obtaining effectiveness or
73
74
75
76
77
78
79
The mandate for 2012-2020 was endorsed only by its members. Final Mandate, FINANCIAL
ACTION TASK FORCE, http://www.fatfgafi.org/topics/fatfgeneral/documents ministersrenewthe
mandateofthefinancialactiontaskforceuntil2020.html.
Quote attributed to Sir Joseph Gold in Cynthia Crawford Lichtenstein, Hard Law v. Soft Law:
Unnecessary Dichotomy?, 36 INTL LAW.1433 (2001).
Id.
Supra note 34 (emphasis added).
Supra note 75, at 1440.
Objectives and Principles for Securities Regulation, INTERNATIONAL ORGANISATION OF SECURITIES
COMMISSIONS, http://www.iosco.org/library/pubdocs/pdf/IOSCOPD154.pdf.
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regulatory convergence depends on national regulators. Since there are ostensibly

no penalties for non-compliance and domestic implementation is necessary to give
force to the standards, the decision whether or not to implement the global
standards seems to rest squarely on the shoulders of national regulators.
Contradicting this assumption, however, are the vigorous mainstreaming80 exercises
conducted by these agencies. The Basel Committee, for example, engages in extensive
monitoring of member compliance81 and confesses to constantly exploring the
mechanics of enforcing [its] standards.82 By their own admission, IOSCO and
FATF are also similarly occupied.
This mainstreaming is further enhanced by the official sector. Since the demise of
the Bretton Woods system, the IMF has slowly but consistently been mapping
new areas of operations for itself. At present, the Fund describes its core activities
as lending, surveillance, providing technical assistance, economic research and
statistics,83 and development of standards and codes.84 However, of the standards
and codes deployed in 12 key areas, the IMF authors just three.85 In the other
areas, the IMF simply endorses the standards developed by other private
sector agencies such as the Basel Committee, IOSCO, FATF, CPMI, OECD,
International Accounting Standards Board, IAIS and International Federation of
80
81
82
83
84
85
The term here refers to a subtle form of coercive enforcement conducted by popularising the use
of the prescribed standards and codes.
Supra note 34.
What the IMF Does, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/work.htm.
The 12 key areas of operations are anti-money laundering and the combating of terrorism,
accounting, auditing, banking supervision, corporate governance, data dissemination, fiscal
transparency, insolvency and creditor rights, insurance supervision, monetary and financial
policy transparency, payments systems, and securities regulation. Reports on the Observance of
Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/rosc/
rosc.asp.
These include data dissemination; fiscal policy transparency and monetary and fiscal policy
transparency. Interestingly, even the Code of Good Practices on Transparency in Monetary and
Financial Policies was developed in conjunction with the Basel Committee, the Center for Latin
American Monetary Studies (CEMLA), CPSS, European Central Bank, International Association
of Insurance Supervisors (IAIS), International Finance Corporation, IOSCO, OECD and the
World Bank. Code of Good Practices on Transparency in Monetary and Financial Policies,
INTERNATIONAL MONETARY FUND, http://www.imf.org/external/np/mae/mft.
77
Accountants.86 With the IMF as principal enforcement agent87 then, the standards
and codes authored by these agencies work their way into the fabric of all
international economic transactions and relationships.88 This technique of
enforcement operates within the official sector as well as at the level of the market.89
Within the IMF, these standards and codes are a crucial component of four of its
five functions. First, the IMF usually works in almost all of its officially supported
standards and codes into its loan agreements with states.90 The Basel standards, for
example, are routinely part of loan packages and compliance was a condition on
at least seven of the loan arrangements made to East Asian countries after the 1997
crisis.91 The IOSCO standards were similarly prescribed for at least one country92.
Further, in some cases, compliance with standards such as those of the Basel
Committee is a prequalification for IMF loans.93 In others, compliance is a
guarantee of better terms on the next loan.94
Secondly, and perhaps most importantly in the context of the relation between
standard-setting states and standard-receiving ones, the standards and codes are at
the heart of IMF surveillance operations. In 1977, surveillance of the general
economic situation and policy strategy of each member country95 became a key
86
87
88
89
90
91
92
93
94
95
List of Standards, Codes and Principles Useful for Bank and Operational Work and for which
Reports on the Observance of Standards and Codes are Produced, INTERNATIONAL MONETARY
FUND, http://www.imf.org/external/standards/scnew.htm. For an interesting discussion of
the origins of the standards, see Delonis, supra note 23. The fact that these standards come from
sources other than the IMF could theoretically pose a problem because the Fund generally
prohibits cross-conditionality with the objectives of other organizations; however, as IMF General
Counsel Francois Gianviti has stated, If the Fund concludes . . . that certain reforms need to be
made to give effect to its own purposes, the fact that these actions will give effect to other treaties
. . . cannot bar the Fund from making them a condition of its financial assistance. Delonis,
Delonis, supra note 23, at 595.
Delonis, supra note 23, at 623-4.
Delonis, supra note 23, at 598-601, 603.
IMF Surveillance Fact Sheet, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/
np/exr/facts/surv.htm.
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part of IMF operations. In 1995, the IMF began its data dissemination work.96
But the most significant was the Financial Sector Assessment Programme (FSAP),
which was launched in 1999 in conjunction with the World Bank. With the
soundness of financial systems as its aim, the FSAP seeks to determine the strength
of a countrys financial system, the quality of its regulatory and supervisory
framework as well as its ability to manage and resolve financial crises and
accordingly dispense country-specific macro and micro prudential
recommendations.97 The programme hinges on detailed assessments of the extent
of a countrys compliance with financial sector standards and codes.98 Not only
are these assessments published as Reports on Observance of Standards and Codes
(ROSCs), the FSAP also provides the groundwork for the Financial Sector
Stability Assessments in which IMF staff address issues such as the stability of the
financial sector and its potential contribution to growth.99
This has two significant implications. First, since the Basel Committee/IOSCO/
FATF agencies with even less political legitimacy than the IMF itself conceive
these standards in the first place, in effect, it is they who decide whether a financial
system is sound or otherwise. Secondly, one sees the meticulous construction of
a multi-layered edifice, where each subsequent layer is validated by the one
preceding it and all rest on the base of standards and regulations.
Thirdly, the standards also have a bearing on the technical assistance function.
Requests for technical assistance by some developing countries are a corollary to
96
97
98
99
This comprises the General Data Dissemination System (approved by the IMF Board of
Directors in 1997), which is aimed at all members and provides recommendations of good
practice for the production and dissemination of macroeconomic and financial data (including
the real, fiscal, financial and external sectors) as well as socio-demographic data (population,
health, education, poverty). The Special Data Dissemination System (approved in 1996), on the
other hand, targets those countries having or seeking access to international capital and prescribes
specific macroeconomic and financial standards that must be adhered to. Other tools include
Special Data Dissemination Plus and Data Quality Reference Site. General Data Dissemination
System, INTERNATIONAL MONETARY FUND, http://dsbb.imf.org/Applications/web/gdds/
gddswhatgdds.
Financial Sector Assessment Program, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/fsap/fssa.aspx.
Supporting Documents Country FSPs, INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/fsap/fsap.asp.
Fact Sheet- The Financial Sector Assessment Program, INTERNATIONAL MONETARY FUND, http://
www.imf.org/external/np/exr/facts/fsap.htm.
79
the surveillance process.100 Through the means of short-term staff missions, longer
term expert placement, training courses, workshops and additional staff reports
among others,101 technical assistance helps countries cope with the specific problem
of non-compliance102 as identified by the FSAPs. This point is critical because it
speaks of convergence as an end in itself, not as a possible cure for other
consequences that may flow from non-compliance.
In November 2002, for example, the IMF added the FATF recommendations to
its list of standards and codes. Along with the World Bank, the IMF then
substantially increased technical assistance available to those countries looking
to strengthen financial, regulatory, and supervisory frameworks for anti-money
laundering and the combating of terrorism.103 As such, the IMF and the World
Bank can be seen as the prime instruments of regulatory convergence.104
That said, the importance of the market cannot be underestimated. A study of
enforcement practices at the level of the market not only indicates the depth of
mainstreaming, it also shows how the market functions as an IMF amplifier. While
some commercial banks insist on IMF conditionality as a precondition to lending
to states, the debt clubs usually insist on an IMF clause in their agreements
with countries.105 Many private financial institutions and investors base investment
decisions on IMF surveillance data.106 As a result, the publication of compliance
data brings to bear an inordinate amount of pressure on a non-compliant state107
looking to the international financial markets for funds. Studies show that states
100 Delonis, supra note 23, at 571.
101 Technical Assistance and Training INTERNATIONAL MONETARY FUND, http://www.imf.org/
external/np/exr/facts/tech.htm
102 This is substantiated by Braithwaite & Drahos assertion that capacity building by the IFIs tends
to focus on the transplant of regulatory models from one state to another and does not address
the more pertinent issue of building the capacity to manage those systems. BRAITHWAITE &
DRAHOS, supra note 1, at 138.
103 The IMF and the Fight Against Money Laundering and the Financing of Terrorism, INTERNATIONAL
MONETARY FUND, http://www.imf.org/external/np/exr/facts/aml.htm.
104 BRAITHWAITE & DRAHOS, supra note 1, at 115; ALEXANDER ET AL., supra note 5, at 36.
105 Pahuja, supra note 14, at 765, 749.
106 Delonis, supra note 23, at 609. Delonis cites the specific examples of Price waterhouse Coopers
and the California Public Employees Retirement System.
107 Delonis, supra note 23, at 595-6. In a similar vein, Braithwaite & Drahos recount the example of
how the US and UK coerced countries into complying with capital adequacy standards in 1987
by linking compliance with entry to their markets and threatening inefficient financial regulatory
systems with the spectre of loss of business. BRAITHWAITE & DRAHOS, supra note 1, at 132.
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with better compliance have lower debt risk premiums and that the publication
of ROSCs has a significant bearing on sovereign credit ratings.108 Given the
widespread interest in IMF data, even states use compliance as a signalling device
to potential trading partners and international investors in order to attract trade
and investment.109
Accountability For None?
The combined operation of the regulatory web, the institutional structures of the
agencies and the enforcement mechanisms makes assigning responsibility and
the locating of specific interests within this diverse set a Herculean task. There
is, of course, the issue of multiplicity. Take the example of the Know Your
Customer (KYC) regulation. The regulation has long been an integral part of the
Basel Core Principles for Effective Banking Supervision110 and the FATF guidelines
elaborate on the same in great detail.111 Meanwhile, both the Basel principles and
the FATF guidelines are used in the IMFs ROSCs.112 Today, KYC procedures
are a key requirement of most central banks and are accordingly woven into the
domestic legislative or regulatory fabric. But no single regulatory body can be
held accountable, or even responsible, for the regulation.113
Equally interesting are the issues of agency, both between the global and the
local and within the global web. On the one hand, the emphasis on the voluntary
nature of the standards not only sets up a false dichotomy between the global and
the local,114 it further imputes to the state/domestic regulators a degree of autonomy
108 Delonis, supra note 23, at 610-1
109 Delonis, supra note 23, at 611.
110 The explanatory notes to the 25 principles justify the regulation by claiming that even inadvertent
association with drug traders and other criminals can undermine public confidence in banks
and damage the banks reputation. The notes also recommend reference to FATF guidelines for
a more thorough treatment of how to implement KYC procedures: Core Principles for Banking
Supervision, BASEL COMMITTEE ON BANKING SUPERVISION, http://www.bis.org/publ/bcbs30a.pdf.
111 Regulations, FINANCIAL A CTION TASK F ORCE, http://www.fatf-gafi.org/document/27/
0,2340,en_32250379_32236920_33965659_1_1_1_1,00.html
112 Standards and Codes, INTERNATIONAL MONETARY FUND, http://www.imf.org/external/standards/
index.htmaccessed.
113 This statement is supported by Braithwaite & Drahos assertion that histories of globalisation
are complex and cannot be understood in terms of the agency of single actors using single
mechanisms. BRAITHWAITE & DRAHOS, supra note 1, at 31.
114 On the convergence of the national and global, see generally Sassen and Picciotto. Sassen refers
to the process as the blurring of duality between the national and global, state and non-state,
81
which is not evidenced by the workings of the global political economy. State
power is constituted by and helps constitute webs of regulatory influences
comprising many actors wielding many mechanisms to achieve globalisation.115
To paraphrase Santos, the world system, operating at the supra-state level, develops
its own systemic law. This is superimposed on the national law of the individual
states across the world system.116 Perceiving financial regulation as essentially
domestic is thus untenable. On the other hand, the global web of regulation and
the various interests it represents preclude the possibility of identifying a single
omnipotent agency or state. A community of the North is as close as one can
get to isolating a specific interest.
CONCLUSION
The subprime crisis of 2007 showed that even the most stringent regulation is not
enough to protect the global economy from the impact of financial crises in
interconnected financial markets. Since the crisis arose in the most developed
jurisdictions with arguably the best-regulated markets the calls for increasing
regulation are now being met with a healthy dose of scepticism. The less developed
markets that stand to acquire a hefty regulatory burden are now arguing that its
not their mess and they shouldnt have to clean it up, that too at such a high cost
to themselves.
Against this backdrop, the democratic deficit in the devise and spread of global
financial regulation underscores the need to interrogate both the substance as well
as the aims of global financial regulation. The norms of transparency and
accountability essential to good governance are severely lacking in the global
financial regulation project. Recent scholarship has stripped economic regulation
of its apolitical, technical pretensions and discovered a disturbing proclivity towards
colonial domination through economic means.117 How different is financial regulation?
private and public in ministries of finance, central banks and specialised technical regulatory
agencies while Picciotto speaks of the fragmentation of the public sphere as giving rise to
systems of layered governance based on regulation. See Saskia Sassen, The Participation of
States and Citizens in Global Governance, 10 IND. J. GLOBAL LEGAL STUD. 5 (2003); Picciotto,
supra note 20.
115 BRAITHWAITE & DRAHOS, supra note 1, at 31.
116 BOAVENTURA DE SOUSA SANTOS, TOWARDS A NEW LEGAL COMMON SENSE 67 (2002).
117 For accounts of the debilitating impact of neo-colonialism on the South, see generally Appadurai,
Anghie, Pahuja and Picciotto.
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FROM NYAYA PANCHAYATS TO GRAM NYAYALAYAS:

THE INDIAN STATE AND RURAL JUSTICE
Shishir Bail*
Legal reform attempts in India have frequently grappled with the
problem of providing access to justice to rural litigants. In the early
years of the Indian republic, the now infamous Nyaya Panchayats were
tasked with this responsibility. These institutions were motivated by a
desire to recreate an indigenous, panchayat based model of dispute
resolution, but had more or less died out by the late 1970s. In 2008, the
Parliament of India made a renewed attempt to address this problem
through the passage of the Gram Nyayalaya Act, intended to result in
the setting up of over 5,000 Gram Nyayalayas across the country. This
article compares these two institutions to see whether Gram Nyayalayas
make the same mistakes as their ill-fated forebears, or whether they do
in fact represent a new approach to the problem of access to justice for
rural litigants in India. This analysis reveals that Gram Nyayalayas
differ substantially from Nyaya Panchayats, and in fact share far more
similarities with the formal court system than to any poorly specified
ideas of indigenous dispute resolution.
INTRODUCTION
In the roughly sixty-seven years since Indian independence, the Indian legal system
has gone through numerous ups and downs and the results have been mixed.1 In
*
Shishir Bail is a Research Associate at the School of Policy and Governance, Azim Premji
University and holds a B.A. LLB (Hons.) degree from the West Bengal National University of
Juridical Sciences.
In addition to a general crisis of acceptance, the formal Indian court system has also suffered
observable problems of case delay, backlog and quality. For discussions of the problems with
respect to the Higher Judiciary see R. DHAVAN, LITIGATION EXPLOSION IN INDIA (1986) and N.
Robinson, A Quantitative Analysis of the Indian Supreme Courts Workload, 10(3) Journal of
Empirical Legal Studies 570 (2013).
83
From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice
this time, various diagnoses of both the problems as well as solutions have been
offered. Some views pose the problem as primarily one of case backlog and delay;
one which can only be remedied by an increase in judicial capacity.2 Other views
have criticised the substantive outcomes produced by the system and have cast
doubt on its ability to deliver access to justice and the rule of law for the
poor.3Alongside these, there is a third kind of critique that has been heard almost
since the inception of the Indian legal system. This critique is based on the idea
that the Indian legal system is alien, having been introduced by the British colonial
administration. This critique further argues that rather than the reform of this
legal system, what is needed is a return to indigenous processes of dispute
resolution.4
Though the formal court system has remained much the same since independence,
these ideas of indigeneity have at different times inflected debates on legal system
reform in India. The fact that many reform attempts have invoked, in one form
or another, visions of traditional, indigenous dispute resolution is proof of
their continuing currency among Indias legal policy establishment.5 Though there
are various examples of this, possibly the most notable of such forums were Nyaya
Panchayats. These forums, in sum and substance, attempted to bring ideas of
traditional, panchayat-based dispute resolution into the formal legal system. They
were also meant to provide a decentralised, accessible, somewhat particularistic
mode of dispute resolution for persons living in rural areas. Though introduced
For some of the problems with the lower judiciary see R. Moog, Delays in the Indian Courts: Why
the Judges Dont Take Control, 16(1) JUSTICE SYSTEM JOURNAL 19 (1992) and LAW COMMISSION OF
INDIA, 77TH REPORT: DELAYS AND ARREARS IN TRIAL COURTS (1978).
A useful overview of the numerous Government reports emphasising supply-side solutions to the
problem of backlog is provided by K. Hazra & M. Micevska, The Problems of Court Congestion:
Evidence from Indian lower courts, in A. K. HAZRA AND B. DEBROY, JUDICIAL REFORM IN INDIA:
ISSUES AND ASPECTS 137, 141-2 (2007).
See for instance P. Baxi, Access to Justice and the Rule of [Good] Law: The Cunning of Judicial
Reform in India (Institute of Human Development New Delhi on behalf of the UN Commission
on the Legal Empowerment of the Poor, Working Paper, 2007) and S. MURALIDHAR, LAW,
POVERTY AND LEGAL AID: ACCESS TO CRIMINAL JUSTICE (2004).
See Marc Galanter, The Aborted Restoration of Indigenous Law in India, 14 COMPARATIVE
STUDIES IN SOCIETY & HISTORY 53 (1972) for an examination of these kinds of critique both before
and immediately after independence. The continuing salience of these ideas is evident in the
legislative debate surrounding the Gram Nyayalaya Act as we show subsequently.
Some earlier instances of these are Nyaya Panchayats, discussed in more detail subsequently, and
Lok Adalats.
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around the time of Indian independence, by the late 1970s these forums had all
but vanished in most of the states in which they had operated.
After their extinction, the District and Taluka courts were the only state forums
for dispute resolution available to rural litigants for many years. This situation
continued until 2008, when the Parliament of India passed the Gram Nyayalayas
Act. This Act sought once more to create a system of decentralised and accessible
judicial institutions for rural litigants at the village level. At the time of the passage
of the Act, over 5,000 of these institutions were sought to be established, one for
each Taluka in the country.
Like Nyaya Panchayats, Gram Nyayalayas are intended to occupy the lowest tier
of the judicial hierarchy. Further, after Nyaya Panchayats, Gram Nyayalayas are
the next attempt by the Indian State to provide rural litigants access to village
level judicial institutions. For these reasons, the creation of these institutions gives
rise to a series of questions: do Gram Nyayalayas, like Nyaya Panchayats, also
attempt to recreate indigenous or traditional forms of dispute resolution? How
do these institutions differ from Nyaya Panchayats? These are the questions that
this paper engages with.
To answer these questions, this paper proceeds in the following manner. First, it
provides some context to demands for a return to indigenous dispute resolution
in the Indian legal system. This is done by looking specifically at the category of
the village panchayat. At various points in the history of legal reform in India
the village panchayat has been put forward as the ideal, traditional form of dispute
resolution that must be returned to. Nyaya Panchayats are in many ways a concrete
manifestation of the village panchayat idea of dispute resolution. The paper argues
that the failure of these institutions represents the unviability of this idea in designing
institutions for rural justice reform.
From there, the paper moves on to study the recently established Gram
Nyayalayas. First, the paper examines the structure of these institutions by looking
at the 114th Law Commission Report, which first recommended the creation of
these institutions, and the Gram Nyayalayas Act of 2008. Thereafter, the paper
discusses the results of field-work conducted on three Gram Nyayalayas in the
months of June and July 2013. The paper argues that in structure as well as
functioning, Gram Nyayalayas represent a move away from the village panchayat
85
ideal of dispute resolution. For the most part, they are best seen as an expansion
of the formal court system to geographically remote areas.
I. THE CONTEXT OF RURAL JUSTICE REFORM IN INDIA

It is widely known that at the time of Indian independence, the Constituent
Assembly charged with drafting the new Constitution was divided on the question
of whether or not to sanction the continuation of the British Indian Legal System,
consisting in the main of the multi-level system of courts. Within the Constituent
assembly, there were a number of voices, led notably by M.K Gandhi, who
advocated the discarding of this system in favour of a de-centralised, informal
system constructed on indigenous lines. As things transpired, the latter option
was rejected conclusively by the Constituent Assembly in favour of the maintenance
of the system of Courts; the Constitution of India mandates the establishment of
a detailed hierarchy of Courts starting from the district judiciary at the bottom
and rising all the way up to the Supreme Court of India.6
While the Constituent Assembly decided to go ahead and carry on with the system
of formal courts, voices in favour of a return to indigenous dispute resolution
processes as a possible solution have never really died down. Following on from
Gandhi, there have been those who have continually asserted that the British
inspired legal system, with its emphasis on adversarial litigation is unsuited to the
sensibilities and historical tendencies of the Indian people towards simple,
conciliatory processes.7 Frequently, the village panchayat is invoked as the ideal
form of indigenous dispute resolution suitable to Indian society.
Nyaya Panchayats are projected as a concrete manifestation of this ideal. It is
important therefore to understand both the content of the village panchayat ideal,
as well as its operationalization through Nyaya Panchayats.
The Village Panchayat
The Law Commission of India in its 14th Report provides us with a succinct
statement of a widely held view of the role of the village panchayat in Indian
history:
6
For a careful account of this process see Marc Galanter, The Displacement of Traditional Law in
Modern India, 24 JOURNAL OF SOCIAL ISSUES 65 (1968).
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References to village panchayats abound in ancient literature and later

historical accounts. In the structure of society as it existed in those
days, the panchayat was the creation of the villagers themselves and
was composed of persons who were generally respected and to whose
decisions the villagers were accustomed to give unqualified obedience.
It does not appear that these panchayats were brought into existence
by the authority of the ruler. Except in matters of general importance,
the ruler seems to have left the villagers to govern themselves and,
among other things, the villagers assumed the responsibility for the
settlement of disputes among themselves. It has, however, to be
remembered that the disputes which these panchayats were called upon
to determine were simple disputes between one villager and another;
disputes that would otherwise have tended to disrupt the rural
harmony. The village in those days was more or less self-contained
and self-sufficient, the villagers being in a considerable measure
dependent on themselves. In such a condition of affairs, it was not
unnatural that the panchayats should have exercised a great measure
of authority and commanded the willing allegiance of the people.8
This description of the function of the village panchayat seems to follow from
earlier bureaucratic accounts of their existence and functioning. The Civil Justice
Committee of 1924-25 (The Rankin Committee) discusses in some detail the
existence of village panchayats and makes careful recommendations about
conferring them jurisdiction in civil and criminal disputes.9
The view of the Law Commission of India is based upon an idea of the Panchayat
as constituted territorially at the village level. These panchayats are ostensibly
created by villagers themselves and are made up of persons who are generally
respected. This view suggests that village communities consist of individuals who
all have an equal say in the constitution of panchayats. On the face of it, this is a
perfect picture of small, liberal democracies, which are taken to be self-evident
parts of traditional Indian culture. This is a view long held in debates on panchayats
7
8
9
For an excellent discussion of these voices from the time of Indian independence onwards, see
M. Galanter, supra note 4.
LAW COMMISSION OF INDIA, 14TH REPORT: REFORM OF THE JUDICIAL ADMINISTRATION, 874 (1958).
CIVIL JUSTICE COMMITTEE, 1924-25 R EPORT, 105 (Government of India Central Publication
Branch, 1925).
87
as instruments of justice in India; Cohn traces this back to Thomas Metcalfs

description of village communities as little Republics in 1830.10
What is striking about this view is the absence of any mention whatsoever of the
constitutive importance of group status, hierarchy and caste in the constitution
of these panchayats. This idea of the village panchayat has been powerfully
critiqued, among others, by Louis Dumont. He argues that at the time of the
British invasion, there were no village panchayats distinct from caste panchayats.11
Further, he shows that all matters of general importance in a village were first and
foremost matters for the dominant caste.12 The pre-eminence of the dominant
caste panchayat in deciding matters of general importance is confirmed by other
anthropological studies of disputes in rural India.13 Hierarchy and group identity
are well established to be important parts of the panchayat process, and to have a
direct bearing on the adjudication of different disputes.14
In contrast, the village panchayat view takes rural society to be made up of
inherently peaceful, equal individuals only interested in the amicable settlement
of disputes. In short, this view emphasises the inexpensive, decentralised and
particularistic nature of panchayat dispute resolution, without acknowledging
the vastly different normative bases on which these institutions rest. At best, the
village panchayat dispute resolution ideal is an inaccurate representation of the
true nature of panchayat dispute resolution. Even so, this view has remained
influential in debates on Indian legal reform. Nyaya Panchayats are the best example
of this.
Nyaya Panchayats An Introduction
The Royal Commission on Decentralisation in 1907 was the first to highlight the
constitution and development of village panchayats with administrative powers
and jurisdiction in petty civil and criminal cases.15 The first state to introduce
10
11
12
13
14
15
B. S. Cohn, Anthropological Notes on Disputes and Law in India, 67(6) AMERICAN ANTHROPOLOGIST
82, 96 (1965).
L. DUMONT, HOMO HIERARCHICUS: THE CASTE SYSTEM AND ITS IMPLICATIONS, 172 (1980).
Id, at 171.
Robert M. Hayden, A Note on Caste Panchayats and Government Courts in India: Different
Kinds of Stages for Different Kinds of Performances, 22 JOURNAL OF LEGAL PLURALISM 43 (1984).
Cohn, supra note 10, at 96.
Law Commission of India (1958), supra note 8, at 874.
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these panchayats through legislation was Madras through the Village Courts Act
of 1888. This was followed up by most of the other states in the country at that
time.16 Each state enactment contained minor differences in terms of constitution
and jurisdiction, however to a large extent the jurisdiction of these tribunals in
civil cases was restricted to (1) suits for money due on contract; (2) suits for recovery
of movable property; (3) suits for compensation for wrongfully taking movable
property and (4) suits for compensation for damage caused by cattle trespass.
Suits relating to immovable property were taken out of the jurisdiction of Nyaya
Panchayats completely; in many States the pecuniary value of suits triable by
these forums was kept as low as Rs. 25 or Rs. 40.17 These panchayats were given
jurisdiction over a large number of criminal offences under the Indian Penal Code.
Generally, Nyaya Panchayats did not have the power to order periods of
incarceration, and could only impose a fine at worst.18 Members of the Nyaya
Panchayats in most states were appointed through the process of election. These
elections were either direct, or involved variations of indirect election and
nomination.19 Each Nyaya Panchayat was generally set up for a group of villages
(usually 7-10 villages).20 Nyaya Panchayats were generally exempted from strictly
observing the procedures contained in the Codes of Civil and Criminal Procedure,
as well as the Indian Evidence Act. Lawyers were completely barred from appearing
before Nyaya Panchayats in most states.21
Nyaya Panchayats therefore contained many of the hallmarks of the village
panchayat ideal. They were exempted from strict procedural rules, employed
popularly elected adjudicators and were located geographically close to parties, at
the village level. The non-application of procedural rules would allow the use of
customary processes of hearing disputes. The presence of popularly elected leaders
would ensure that they were generally respected by the population, and therefore
16
17
18
19
20
21
The Law Commission of India in its 14th Report provides a useful list of the individual states and
enactments. Law Commission of India (1958), supra note 8, at 878.
These equate to roughly Rs. 1,250 or Rs. 2,000 in 2013 money. Law Commission of India (1958),
See U. Baxi & M. Galanter, Panchayat justice: an Indian experiment in legal access, 3 ACCESS TO
JUSTICE: EMERGING ISSUES AND PERSPECTIVES 343 (1979) for a discussion of the various methods.
Id.
89
that their decisions were valued and adhered to. If the village panchayat ideal is to
be believed, these institutions captured the essential features of indigenous dispute
resolution in India. Why then, did they fail so miserably?
Baxi and Galanter argued that many of the problems with Nyaya Panchayats
stemmed from the ambiguity around their exact nature and their role in the judicial
and political systems.22 They point out that already by 1970, the workload of
Nyaya Panchayats in some states had fallen considerably.23 In Uttar Pradesh total
filings had dropped from 91,107 in 1961 to 35,865 in 1970. In the same time,
filings in the formal civil and criminal courts had risen consistently; the situation
was similar in Bihar. While national level studies by the Law Commission (1958)
and the Study Team on Nyaya Panchayats24 (1962) saw great promise in these
institutions, results reported by studies in individual states were much less sanguine.
Reports in Maharashtra and Rajasthan recommended the abolition of these
institutions altogether, both for different reasons.25
By the time of Meschievitz and Galanters 1982 study, actual sightings of Nyaya
Panchayats were already infrequent in the state of Uttar Pradesh.26 They described
some of the difficulties and absurdities caused by the structure of the Nyaya
Panchayat system. Aside from problems with funding and overlapping jurisdiction,
some problems were a product solely of the unique Nyaya Panchayat structure.
Chief among these was that Nyaya Panchas (the adjudicators) were required to
stick as far as possible to the letter of the substantive law, when in fact most were
22
23
24
25
26
Baxi & Galanter supra note 19, at Part III.

Baxi & Galanter supra note 19, at Part II E.
REPORT OF THE STUDY TEAM OF NYAYA PANCHAYATS (Ministry of Law, Govt of India, 1962) as
cited in Baxi & Galanter, supra note 19.
The report of the Rajasthan Committee attributed the failure of Nyaya Panchayats in that State
to the separation of the judiciary and the executive at the grassroots level. It accordingly
recommended that the jurisdiction to hear disputes be granted to the ordinary Gram Panchayat.
On the other hand, the Maharashtra Committee was concerned that these institutions were not
gaining much support and were hence moribund, but more damagingly, argued that their
presence was in fact harming already existing modes of informal, non-state dispute resolution.
On these grounds, it recommended their abolition as soon as possible. Both states finally abolished
Nyaya Panchayats in 1975. See REPORT OF THE HIGH POWERED COMMITTEE ON PANCHAYATI RAJ
(Government of Rajasthan 1973) and REPORT OF THE EVALUATION COMMITTEE ON PANCHAYATI
RAJ (Government of Maharashtra 1971) as cited in Baxi & Galanter, supra note 19, at Part II F.
C. S. Meschievitz & M. Galanter, In Search of Nyaya Panchayats: The Politics of a Moribund
Institution, 2 THE POLITICS OF INFORMAL JUSTICE 47, 61 (1982).
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not highly literate; the only requirement to be recruited as a Nyaya Pancha being
a minimum age of 30 years and the ability to read and write in Hindi. As a result,
most Nyaya Panchas failed to sufficiently understand the legal provisions they
were to apply. Further, Nyaya Panchas were expected to fulfil an incredibly
complex role; treading a delicate balance between textual law and local custom,
remaining honest, upright and impartial, sensitive to the needs of parties, fair in
reaching suitable compromises, forceful in levying and collecting fines, all without
compensation or the necessary means to do so.27
For these reasons, Meschievitz and Galanter were strongly pessimistic of the
continued existence of Nyaya Panchayats and described them as institutionally
weak and moribund.28 They attributed this state of affairs to the indiscriminate
use by Indian policy makers of the panchayat ideology, which was deployed in
an effort to avoid serious engagement with the nature of disputes and law in rural
India.29 They describe the panchayat ideology in the following terms:
More recently, Galanter and Krishnan have suggested that Nyaya
Panchayats failed because they represented an unappetising
combination of the formality of official law with the political
malleability of village tribunals.30
The Nyaya Panchayat experience holds valuable lessons for the design of rural
justice reform in India. These were an attempt to recreate an idealised traditional
institution, the village panchayat, and at the same time imbue them with an
adherence to the enacted substantive law of the country. As we have seen earlier,
the village panchayat ideal itself was based on a dubious vision of the nature of
law and disputes in rural India. The failure of Nyaya Panchayats shows that at
least in this form, demands for a return to indigenous processes of dispute resolution
are unlikely to be fruitful.
28
29
30
Meschievitz & Galanter, supra note 26, at 70.

They describe the panchayat ideology in the following terms:
This ideology is one component of the politics of rural justice in India. It offers a set of formulas
by which to portray social reality; it enables politicians and legal policymakers to appeal for public
support without promising action. The panchayat ideology is one that politicians and legal
policymakers can safely support without having to implement an effective Nyaya Panchayat
system (much less committing them to use such a system themselves) Meschievitz & Galanter,
supra note 26 at 57.
M. Galanter & J. K. Krishnan, Bread for the Poor: Access to Justice and the Rights of the Needy in
India, 55 HASTINGS LAW JOURNAL 789, 793 (2004).
91
II. GRAM NYAYALAYAS

The previous part of this paper showed that Nyaya Panchayats, relying on the
village panchayat ideology, represented an unviable approach to rural justice
reform. Do Gram Nyayalayas commit the same folly? If not, how do they depart
from the earlier model? These are the questions with which this part engages.
Gram Nyayalayas A short history
The creation of Gram Nyayalayas was first suggested by the Law Commission of
India in 1986 in its 114th Report. A quick perusal of the Law Commission of
Indias 1986 report on Gram Nyayalayas alerts one to their stated desire to move
away from the Nyaya Panchayat model.31 The first major thrust of the report
was towards the idea of participatory justice. The Law Commission identified the
alien nature of the Indian legal system as one of its biggest drawbacks.32 Following
from this, the Law Commission stresses the need for persons adjudicating disputes
to be knowledgeable of local conditions and culture. In order to achieve this, the
Commission settled on a model of a rural court manned by a three member panel.
This panel was to be headed by a judicially trained officer, accompanied by two
lay-judges.33 While the judicial officer would be selected from the cadre of judges
maintained by each State, the lay-judges were to be appointed through the process
of selection by a panel consisting of the District Magistrate and the District and
Sessions Judge. Unlike Nyaya Panchayats therefore, there was no component of
democratic election to the Gram Nyayalaya.34 Still, the Law Commission appeared
to be convinced of the benefits of lay-adjudication.
The Law Commission declined to specify a pecuniary limit for the proposed
Gram Nyayalayas. Instead, in civil cases they simply specified a list of types of
subject matter that Gram Nyayalayas would have jurisdiction over. Generally
speaking, this was more expansive than the jurisdiction awarded to Nyaya
31
32
33
34
This was even though strengthening in rural areas the institutions of Nyaya Panchayats was
one of their terms of reference. LAW COMMISSION OF INDIA, 114TH REPORT: GRAM NYAYALAYA,
1(1986).
It has till today remained an alien system which has no living contact with the masses and is not
meaningful to them. Id., at 7.
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Panchayats.35 The Law Commission was also in favour of granting Gram Nyayalayas
wider jurisdiction in criminal matters than had earlier been the case with Nyaya
Panchayats, due to the presence of the proposed judicial member on the panel of
judges in the Gram Nyayalaya.36 Further, the Law Commission proposed a
simplified procedure in civil cases, through the exclusion of the Civil Procedure
Code and the Indian Evidence Act. In criminal cases the Criminal Procedure Code
would still be applicable.37 Lawyers were not to be barred. Notably, Gram
Nyayalayas would be mobile, in the sense that they were to travel to the sites of
individual disputes. This was intended as a solution to the problems of collecting
evidence.38
On the whole, the Law Commission intended to create a forum which combined
some of the important features of both the formal courts, as well as institutions
such as Nyaya Panchayats.
The Gram Nyayalayas Act of 2008
The Gram Nyayalaya Act of 2008 incorporates some of the features suggested by
the Law Commission Report. As an example, Gram Nyayalayas are to remain
mobile and conduct periodic visits to the villages within their jurisdiction. Some
of the Law Commission recommendations are however ignored completely.
Absent is the idea of participatory justice that formed an important part of the
Law Commissions model. In sum and substance, the Act of 2008 contains many
significant departures from the Nyaya Panchayat model, as well as from the Law
Commission Report of 1986. Some of these are as follows:
Lay-adjudication: Nyaya Panchayats as well the Law Commission Report of 1986
laid a lot of stress on the need for lay-adjudicators in rural disputes. This was
because these persons were thought to be more knowledgeable about local custom
and practices. In sharp contrast, the Act of 2008 establishes that each Gram
Nyayalaya will be headed by a single Nyayadhikari, who must possess the
35
36
37
38
For instance, Gram Nyayalayas were to hear disputes pertaining to immovable property. These
were excluded from the jurisdiction of Nyaya Panchayats altogether. Law Commission of India
(1986), supra note 31, at 27-28.
Law Commission of India (1986), supra note 31, at 28-29.
Law Commission of India (1986), supra note 31, at 31-34.
93
qualifications of a Judicial Magistrate of the First Class.39 This means that at the
very least, a Nyayadhikari must possess a law degree. This appears to be a rejection
of the promise of lay-adjudication, in favour of adjudication by professional judges.
Procedure to be followed: Nyaya Panchayats were generally completely exempted
from applying the procedural law. The Law Commission prescribed simplified
procedures for Gram Nyayalayas in civil cases, and the reduced application of
criminal procedure in criminal cases. By contrast, the Gram Nyayalayas Act of
2008 retains the applicability of the Code of Criminal Procedure 1973, to all
criminal cases before it. This is subject to the caveat that all cases will first be heard
through the summary trial procedure. If the Nyayadhikari deems it necessary,
they may be re-heard through the regular trial procedure.40 In civil cases, the Act
prescribes a procedure that departs in some substantial respects from the Code of
Civil Procedure, 1908. For instance, Section 24(6) of the Act declares that for any
incidental matter arising during a civil trial, the Gram Nyayalaya may adopt such
procedure as it deems just and reasonable in the interest of justice. In both civil
and criminal cases, Gram Nyayalayas are not bound by the provisions of the
Indian Evidence Act. Section 30 of the Act allows the Gram Nyayalaya to receive
as evidence any report, statement, document, information or matter that may, in
its opinion assist it to deal effectually with a dispute, whether or not the same
would be relevant or admissible under the Indian Evidence Act, 1872. In sum,
while the procedure in Gram Nyayalayas departs in some important respects
from the main procedural codes, there are also substantial similarities, especially
in criminal trials. It is also worth noting that in civil cases the Act gives substantial
latitude to the State Government and High Court to decide the form and manner
of pleadings.41
Legal Representation: Most Nyaya Panchayat legislations expressly barred the
presence of lawyers, who were seen as fomenting litigation and encouraging
vexatious claims. In stark contrast, the Gram Nyayalayas Act makes no attempt
to bar the presence of legal representation. Adversarial adjudication is very much
a part of the Gram Nyayalayas mandate; this is clear also from the 1986 Law
39
40
41
Sections 5 and 6, Gram Nyayalayas Act, 2008.

See Sections 18 and 19.
See Section 24.
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Commission Report. Coupled with the rejection of the idea of lay adjudication,
it appears clear that Gram Nyayalayas embrace a professional model of justice
delivery and dispute resolution.
The Act makes it mandatory for the Gram Nyayalaya to first attempt to resolve
civil disputes through conciliation.42 The procedure for conciliation is determined
by the High Court, and each Gram Nyayalaya is required to maintain a panel of
conciliators for this purpose.43 Though the Act does not specify this, it is reasonable
to assume that disputes that cannot be resolved through conciliation will still be
adjudicated upon.
In the structure established by the Act therefore, there is minimal homage paid to
the many elements of the panchayat ideology. The Gram Nyayalayas Act adopts
a model of adversarial adjudication by professional judges, with parties represented
by legal professionals. Aside from this, Gram Nyayalayas have a wider jurisdiction
in both civil and criminal cases than was enjoyed by most Nyaya Panchayats.
Though civil cases are meant to be conciliated first, the provisions of the Act
retain a bedrock of adversarial proceedings. This is a significant departure from
the village panchayat ideal of consensual, and amicable dispute resolution.
This being the case, the legislative debates on the Gram Nyayalayas Bill of 2008
are instructive of the continuing appeal of the village panchayat ideal. Many
members of the Rajya Sabha, most notably Kalraj Mishra, strongly advocated a
rejection of the Gram Nyayalaya Bill in favour of a return to traditional
processes.44 A popular proposal was the conferring of jurisdiction to hear disputes
on the elected Gram Panchayat.45 Significantly, these efforts were unsuccessful.
Even at the time of its inception then, there was an understanding in the legislature
that Gram Nyayalayas signified a move away from traditional processes, rather
than an attempt to recreate them.
42
43
44
45
See Section 26.

See Section 27.
RAJYA SABHA PARLIAMENTARY DEBATES, SESSION NUMBER 214, p. 243 (December 17, 2008).
For instance, see the intervention made by Shantaram Laxman Naik (INC). Id., at 234.
95
Gram Nyayalayas in Action

Notwithstanding the legal structure of these institutions as discussed above, a
more textured understanding of their character can only be obtained through an
account of their actual functioning. Significant questions remain, such as the
following:
-
How do the provisions mandating professional representation,

adjudication and increased procedural requirements in Gram Nyayalayas
operate? Do they protect against a return to the model of dispute
resolution seen in Nyaya Panchayats?
What role do the conciliation provisions in the Gram Nyayalayas Act

play in this process?
What kinds of cases do Gram Nyayalayas hear?
To answer these questions, this section describes the results of field research
undertaken on three Gram Nyayalayas in the months of May and June 2013.
The three Gram Nyayalayas chosen for this study were in the Indian states of
Rajasthan, Maharashtra and Madhya Pradesh. Specifically, in Rajasthan the Gram
Nyayalaya studied was located in Bassi Taluka, part of Jaipur District. In
Maharashtra the Gram Nyayalaya was in Haveli Taluka, part of Pune District.
The last Gram Nyayalaya studied, in Madhya Pradesh, was in Gwalior Taluka,
part of Gwalior District. The number of Gram Nyayalayas operationalised across
the Country is far short of the intended figure; the three states chosen for this
study were the three states that had operationalised the most Gram Nyayalayas in
the Country.46 On the basis of preliminary research, these appeared to be the
only States to approach the creation of Gram Nyayalayas with any seriousness.47
Madhya Pradesh in particular is the only State in the Country that has made a
sizeable investment in Gram Nyayalayas.
46
47
Madhya Pradesh leads all others by a long way in this respect, with 89 Gram Nyayalayas
operationalized in that state alone as on September 2012. Rajasthan had the second highest
number, with 45. Maharashtra reported the third highest number, with 9. RAJYA SABHA WRITTEN
ANSWERS TO UNSTARRED QUESTIONS, SESSION NUMBER 225, p. 145 (March 19, 2012)
Though other states, such as Kerala, have sanctioned the creation of further Gram Nyayalayas
subsequently, none of these have yet become operational.
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Each Gram Nyayalaya was observed through the course of one day of hearing.48
In addition, interviews were conducted with the presiding Nyayadhikaris as well
as lawyers appearing for the parties. The parties themselves were not spoken to
directly. The following paragraphs describe the results of these observations.
Judges, Lawyers and Procedures: an Emphasis on Professional Justice
Delivery
As discussed earlier, the Gram Nyayalayas Act departs significantly from the
Nyaya Panchayat model in its prescription of professionally qualified judges, and
the presence of legal representation. Section 6 of the Act mandates that a
Nyayadhikari must have the same qualifications as a Judicial Magistrate of the
First Class. Conceivably, this could be interpreted to include persons outside the
formal judicial structure but possessing the necessary qualifications: eg., practising
lawyers, retired judges and so on.
However, all the three Gram Nyayalayas we observed were manned by sitting
members of the judiciary in their respective States. Further, these Gram
Nyayalayas were in fact already existing courts of the Judicial Magistrate First
Class, which had been additionally named as Gram Nyayalayas. So, on most days
of the week or month, these were ordinary court rooms at the District or Taluka
court complex. On certain designated days, they would travel out and make village
visits. This was how their Gram Nyayalaya function was fulfilled. Second, at
least two of the three Gram Nyayalayas shared their docket of cases with the
Magistrates Court. What this means is that the Nyayadhikaris heard the same
cases in the Gram Nyayalaya as in their parallel capacity as Judicial Magistrates
First Class. In all three cases, their dockets were made up predominantly of criminal
rather than civil cases. We discuss this in more detail presently. On these grounds
at least, the title of Gram Nyayalaya appeared to be more a nominal category
than the mark of a truly novel institution.
All three Gram Nyayalayas were attended, to lesser or greater degree, by lawyers.
The Gram Nyayalaya at Bassi was located within the same complex as the other
Taluka courts, and was therefore easily accessible to the lawyers who worked in
the area. The situation was slightly different in Haveli and Gwalior, where the
Gram Nyayalaya was convened at the Gram Panchayat office of the village it was
48
The Gram Nyayalaya at Bassi was observed only for half a day.
97
visiting. This made it somewhat difficult for lawyers to attend these proceedings.
The few lawyers who did attend were thoroughly disparaging of the fact that
they had to travel long distances to do so. In Haveli, out of the 11 cases that were
heard on the day we attended, only one defendant was represented by a lawyer.
In Gwalior, the same lawyer appeared for the defendants in 3 out of the 7 cases
that were heard on the day. In all these cases, an adjournment was sought and
received.
How did the presence of sitting judges and qualified lawyers affect the manner of
proceedings in Gram Nyayalayas? In 10 out of the 11 cases we observed in Haveli,
the defendants were not represented by lawyers. These cases were all decided
summarily, with the accused pleading guilty to the charges against them. Generally,
these were minor public order offences involving a maximum punishment of a
fine or a small period of imprisonment. In these cases, after pleading guilty the
defendants were ordered to pay a fine. They duly deposited this fine with a Court
Official entrusted with this task and left. The 11th case involved a slightly more
serious offence with a maximum punishment of imprisonment for 3 years. Here,
the accused was represented by a lawyer. In this case, the public prosecutor present
there examined his main witness, the police constable who registered the case.
Thereafter, the witness was cross-examined by the defence lawyer. After a short
deliberation and final arguments on both sides, the case was decided and the
defendant was acquitted.
The 10 cases in which the accused pleaded guilty were petty offences under the
Criminal Procedure Code, 1973. These are offences punishable only by a fine, up
to a maximum of Rs. 1000. Petty offences may also be tried summarily, under
Chapter XXI of the Criminal Procedure Code. In these cases it did not appear
that the judge was unduly influencing or coercing the defendants into pleading
guilty; most cases lasted a maximum of 3-4 minutes. It appeared quite clear that in
these cases the defendants had arrived with the intention of pleading guilty, paying
the fines, and having their cases finally closed. Assuming that those who pleaded
guilty actually believed themselves to be so, the process in the Gram Nyayalaya
appeared to adhere reasonably to the applicable procedural law. In the other case,
the trial was conducted in largely the same manner as in any other Magistrates
Court. The lawyer for the defendant was allowed to fully present their claims,
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and eventually they were acquitted for a lack of evidence. The procedure in both
these kinds of cases then followed quite closely the procedure to be followed in
the formal courts.
More interestingly, the judge and lawyers were dressed in full court dress. The
judge was dressed in his gown, as were the lawyers. For all external observers then
this was an ordinary court, albeit in an extraordinary location.
The story was only marginally different in Gwalior. On the day we attended the
hearings, only seven cases were called and heard. In a number of other cases,
parties names were called out but none appeared. We were told that this was an
extraordinarily low figure. In four out of these seven cases, the defendants appeared
themselves. The three remaining cases were all handled by one lawyer, who sought
adjournments in all three. Though we were not able to observe any cases being
heard and decided, it was telling that in the cases that we saw adjournments were
easily sought for and given. If anything, this was more emblematic of one of the
frequently invoked pathologies of the formal court system than anything else.
Further, all the seven cases called that day were criminal cases stemming from
motor accidents.
We were not able to observe any cases being heard in Bassi. Still, some aspects of
the Gram Nyayalaya there were indicative of the likely nature of functioning.
The Gram Nyayalaya itself was constructed as an additional court-room in the
Taluka court complex, replete with a bench for the judge, witness stands, and
galleries for parties and their families. Aside from the sign at the entrance, there
was not much to distinguish this court room from the others in the court complex.
Conversations with the Nyayadhikari further confirmed this impression. He
indicated that while the Gram Nyayalaya used to make village visits earlier, that
practice had more or less stopped. Cases were now heard exclusively in the
designated court-room, and proceedings were much the same as any of the other
courts in the court complex.
None of the three Gram Nyayalayas we visited either maintained a panel of
conciliators, or regularly referred cases to conciliation. Both of these are mandated
by the Act in civil cases; this seemed to be a generally ignored feature of the
structure prescribed by the Act. All cases in these Gram Nyayalayas were heard
and decided by the Nyayadhikari.
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Caseloads
The absence of conciliation proceedings in Gram Nyayalayas becomes more easily
explicable when looking at the caseloads of these institutions. From the disparate
sources of data available, it is quite clear that these institutions hear overwhelmingly
more criminal cases than civil cases.
For instance, there were a total of 1,603 cases pending before the Gram Nyayalaya
at Bassi on the 21st of May 2013. Of these, 1,376 were criminal cases while 233
were civil cases. The Gram Nyayalaya in Haveli on the other hand heard exclusively
criminal cases. We could not find a single civil case among the cases heard or
disposed by this Gram Nyayalaya for the months of March, April or May 2013.
The absence of civil cases in this Gram Nyayalaya was confirmed in conversations
with the Nyayadhikari as well as the Registrar of the Pune District Court.
The most extensive data set received was from the state of Madhya Pradesh for
the year 2013. Again, this shows the minuscule number of civil cases heard and
disposed in the Gram Nyayalayas in that State as opposed to criminal cases. On
the 1st of January 2013 there were 120 civil cases pending before all eighty eight
Gram Nyayalayas in Madhya Pradesh. By contrast, the similar figure for criminal
cases was 12,447. Similarly, a total of 142 civil cases were filed before all Gram
Nyayalayas in Madhya Pradesh during the year; the corresponding figure for
criminal cases was 6,244. Finally, and rather damningly, all 88 Gram Nyayalayas
in Madhya Pradesh disposed of a paltry 98 civil cases in 2013. That is little more
than one case per Gram Nyayalaya. By contrast, these same institutions disposed
of 6,446 criminal cases during the year.
While it is true that there are generally more civil than criminal cases pending
before Indias lower courts, Gram Nyayalayas still appear to hear a
disproportionately higher number of criminal cases than civil. Returning to our
earlier discussion, it is not surprising that none of the Gram Nyayalayas we visited
had taken steps to facilitate conciliation proceedings by maintaining a panel of
conciliators. The Act prescribes conciliation only in civil cases, while all three
generally heard only criminal cases.
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Analysis
Through the above discussion, it becomes fairly clear that Gram Nyayalayas are a
substantial departure from the village panchayat model embodied by Nyaya
Panchayats. For all intents and purposes, they are decentralised courts, manned
by sitting members of the judiciary, and deciding cases on the bases of the
substantive and procedural laws of the land. This appears to especially true of
criminal cases, which are heard in much the same manner as in the formal court
system.
On the other hand, we could not witness the manner in which these forums
disposed of civil cases. It is possible that these cases are decided in a substantially
different, village panchayat manner. The presence of professional judges and
lawyers in Gram Nyayalayas however militate against this possibility. The presence
of the latter especially is likely to ensure that even civil cases in Gram Nyayalayas
are heard in an adversarial manner, using the somewhat truncated procedure
prescribed in the Act. At any rate, it must be remembered that Gram Nyayalayas
hear a minuscule number of civil cases at the best of times.
CONCLUSION
Over 60 years after independence, the search for acceptable and accessible legal
institutions for those living in rural India is still on-going. At many times, this
search has been punctuated by calls to return to traditional or indigenous forms
and mechanisms for dispute resolution.The village panchayat ideal and its
interpretation through Nyaya Panchayats are the most notable attempts by the
Indian state to operationalise this return.The failure of those institutions was
evidence of both the inaccuracy of the village panchayat idea, as well as its unviability
as a guide for meaningful reform.
Gram Nyayalayas are the next major chapter in this story. Like Nyaya Panchayats,
they are intended to provide persons in rural areas village level access to judicial
institutions. They are however, strikingly different in both their structure and
functioning. At no point do they claim to offer a particularistic, localised form of
dispute resolution. For the most part, they embrace a professionalised model of
justice delivery founded on the idea of adversarial adjudication. In this respect,
101
they are much closer to the formal courts in the country than to any indigenous
or traditional institutions, real or idealised. In the broad story of the Indian legal
system, the move from Nyaya Panchayats to Gram Nyayalayas likely signifies
the conclusive end of State attempts to return to traditional models of dispute
resolution, and the move towards a model based on the slow and steady expansion
of the formal court system.
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JUDICIAL RESTRAINT IN AN ERA OF TERRORISM:

PREVENTION OF TERRORISM CASES AND
MINORITIES IN INDIA
Shylashri Shankar*
The article assesses and compares the behaviour of Indias higher judiciary
on Prevention of Terrorism Act (POTA) cases with the pattern of rulings
on previous preventive detention and anti-terror laws in India. It tests
the hypothesis in Scaling Justice: Indias Supreme Court, Anti-Terror
Laws and Social Rights, that POTA cases would see more pro-state
rulings, particularly after incidents of terrorism, but that Muslim
minorities would not be unduly targeted by the judges. The findings
from the 103 POTA cases affirm the hypothesis that the judgments of
the high court and the supreme court do not exhibit a pattern of
disfavouring Muslim accused. However, a more disquieting element
with worrisome consequences for civil liberties is apparent in the framing
of the anti-terror cases. The court is more likely to rule in favour of the
state when a case is framed as Islamic terrorism. The impreciseness of
this and other terms such as urgency and security threat have expanded
the scope of the application of anti-terror laws, diluted the due process
protections, and reduced the ability of judges to make a distinction
between the political aspirations and the religious affiliation of the
accused. This has diluted the procedural and substantive protection for
civil liberties of citizens and vulnerable minorities in India.
INTRODUCTION
Terrorism is one of the biggest tests of a democracys ability to abide by its precommitment to fundamental rights. It induces higher levels of insecurity and greater
willingness on the part of citizens to allow legislatures to enact laws that may
allow secret trials, detention without trial, surveillance, and even torture. Antiterror laws are particularly insidious because they bypass constitutional and
*
Shylashri Shankar is Senior Fellow at the Centre for Policy Research, New Delhi.
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Judicial Restraint in An Era of Terrorism: Prevention of Terrorism Cases and Minorities in India
procedural safeguards, thus instituting a dual or parallel system of justice.1

Unlike the punitive nature of criminal law, detention and anti-terror laws are
preventive, that is, an individuals autonomy can be curtailed by tapping phones,
by reading e-mails, and by imprisonment - merely on the suspicion that he/she
may commit an act that might infringe the security of the state.
Anti-terror legislation is usually enacted against secessionist or global jihadi groups,
but, as studies show, the brunt of the enforcement (and the attendant mistakes) is
borne by religious, ethnic, and political minorities.2 About 140 countries have
passed counter-terror laws since Al-Qaedas attack on September 11 in America;3
with little debate or reflection on the implications of increasing the draconian
powers of the state. Indias Prevention of Terrorism Act (POTA), which expanded
the discretionary power of the state to limit liberties in the name of terrorist and
seditious activities, was passed by the Parliament on 28 March 2002 after barely
ten hours of debate.4
The democratic failure school5 argues that minorities are most at risk during a
terrorist threat because there is a tendency on the part of the state to barter their
rights to pay for enhanced security of the majority. In such times, the majority
1
2
3
4
UJJWAL KUMAR SINGH, THE STATE, DEMOCRACY AND ANTI-TERROR LAWS 70 (2007); Upendra
Baxi, The Rule of Law in India, 4 Sur-Revista Internacional de Direitos Humanos 6, (2007).
The USs PATRIOT Act has been implemented in a way detrimental to the civil liberties of
minorities, while Turkeys Law to Fight Terrorism has been used against the Kurdish minority.
See Yevgenia S. Kleiner, Racial Profiling in the Name of National Security: Protecting Minority
Travelers Civil Liberties in the Age of Terrorism, 30 B.C. THIRD WORLD L.J., 103 (2010); Edel
Hughes, Political Violence and Law Reform in Turkey: Securing the Human Rights of the Kurds?,
JOURNAL OF CONFLICT STUDIES, http://journals.hil.unb.ca/index.php/JCS/article/view/4513/
5324.
Global: 140 Countries Pass Counterterrors Law since 9/11, HUMAN RIGHTS WATCH, http://
www.hrw.org/news/2012/06/29/global-140-countries-pass-counterterror-laws-911.
India is one of the few countries that provides for preventive detention as an ordinary legislative
power in times of peace. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 50 (N.M. Tripathy ed., 3d
ed. 1983). Explanations for this can be attributed to the view held by powerful members of the
Constituent Assembly that (i) fundamental rights were seen as gifts of the state which could be
curtailed, (ii) the state was seen as a benevolent entity, and therefore (iii) there was no need for
courts to oversee the content or requirement of preventive detention. See Suhas Chakma, Do
Ends Justify Means?, http://www.india-seminar.com/2002/512/512%20suhas%20chakma.htm,
for a comprehensive list of preventive detention acts.
Bruce Ackerman, Terrorism and the Constitutional Order, 75 FORDHAM L. REV.,(2006); Jeremy
Waldron, Security and Liberty: the Image of Balance, 11 JOURNAL OF POLITICAL PHILOSOPHY, 191203 (2003); David Cole, Judging the Next Emergency: Judicial Review and Individual Rights in
Times of Crisis, 101 MICH. L. REV., 2565-95, (2003).
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opinion veers towards jettisoning rights and upholding the Roman adage, salus
populi primus lex the safety of the people is the ultimate law. The risk increases
if these minorities belong to the same religious or ethnic group as those challenging
the territorial integrity of a country.6
The judiciary, as the interpreter of anti-terror laws, is at the forefront of balancing
the demands of security with the obligation of democracy to protect fundamental
liberties. Do courts in democracies protect the rights of minorities accused under
anti-terror laws? Those who answer in the affirmative see courts as providing a
constitutional check on executive power and ensuring democratic accountability.7
Their reasoning is that judges are insulated from political preferences and therefore,
from majoritarian prejudices, allowing them to act without fear or favour, and
protect minorities. But empirical evidence supporting such a view is limited.
A contrary view is held by scholars such as Robert Dahl8 who was the first to
rebut the hypothesis that a court stands in some special way as a protector of
minorities against the tyranny of the majority. Rather, judges are more likely to
be jurispathic agents of state coercion9 and the principles of deference align the
interpretive acts of judges with the acts and interests of those who controlled the
means of violence. Other empirical work supports this view that more often than
not, courts defer to the executive during a crisis because of constitutional,
institutional, and patriotic reasons.10 This position has been referred to as national
security maximalism or executive unilateralism. Citing evidence from the USA,
Asia, and Europe, scholars argue that democracies are no better than authoritarian
systems at protecting civil liberties during a crisis11 and that they may even curtail
6
7
8
9
10
11
For arguments justifying democratically authorised abridgments of liberties of some in order to

preserve the liberties of all, see M. Ignatieff, Human Rights, the Laws of War, and Terrorism, 69
SOCIAL RESEARCH 1137 (2002).
CLINTON ROSSITER, CONSTITUTIONAL DICTATORSHIP, (2002).
Robert Dahl, Decision making in a Democracy: The Supreme Court as a National Policy-Maker,
6 JOURNAL OF PUBLIC LAW, 279 (1957).
Robert Cover, The Supreme Court, 1982 TermForeword: Nomos and Narrative, 97 HARV. L.
REV. 4, (1983).
Floyd Abrams, The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST L. 1
(2002); Philip B. Heynman, Dealing with Terrorism: An Overview, 26 INTERNATIONAL SECURITY,
24-38 (2001).
Tania Cruz, Civil Liberties Post September 11, Judicial Scrutiny of National Security: Excessive
Restrictions of Civil Liberties When Fears and Prejudices are Aroused, 2 SEATTLE JOURNAL FOR
SOCIAL JUSTICE 129 (2004); Eugene Rostow, The Japanese American Cases- A Disaster, FACULTY
SCHOLARSHIP SERIES, http://digitalcommons.law.yale.edu/fss_papers/2155.
105
liberties. Crisis situations are defined as those where the security of the country is
compromised by violent secessionist movements and/or threats from terrorist
groups.12 For instance, after the September 11 attack, when the United States
Congress passed the PATRIOT Act giving authorities wide latitude to detain and
convict citizens without customary burdens of proof, most of the detenus were
Muslims.13
Cole14 highlights the four main reasons why traditional explanations would argue
that courts are likely to fare poorly on matters of national security during a crisis.
First, judges, notwithstanding their independence, are members of state institutions
and are likely to identify with other institutions such as the Parliament and the
Army when the security of the country is at stake. This, coupled with a rally
around the flag effect makes judges less likely to stand above the crisis. Secondly,
crisis situations inherently push the judges to defer to the Executive since the
court lacks complete information to assess the validity of the threat. As Cole and
others point out,15 the US Supreme Courts decision in Korematsu,16 where it
deferred to military claims of necessity as sufficient reason for interning JapaneseUS citizens, was later shown to be based on an inaccurate record. Thirdly, if the
court rules against the executive on a matter of national security, they may face
and most likely lose a challenge to their credibility and legitimacy. Finally, judges
might worry that their decision might be followed at some subsequent cost to
national security.
The reasons proffered by both approaches for a particular type of judicial
behaviour could cut either way. Sunstein17 rightly points out that institutionally,
judicial independence (structural and operational) does not guarantee impartiality
12
13
14
15
16
17
Lee Epstein, Daniel E. Ho, Gary King, and Jeffrey A. Segal, The Supreme Court During CrisisHow War Affects Only Non-War Cases, 1 N.Y.U. L. REV. 80 (2005).
The Council of American Islamic Relations received 1522 reports of abuse under the Act, but
unreported cases are higher, says the BBC. See Jenny Cuffe, US Muslims alienated from Patriot
Act, BBC NEWS, http://news.bbc.co.uk/2/hi/programmes/file_on_4/5145970.stm.
Cole, supra note 5. He argues that a less pessimistic evaluation of judicial performance on matters
of national security is warranted if we ask what role have judicial decisions played over time in
framing the options available to the Executive. He argues that courts have restricted the options
for the Executive in the next Emergency.
Supra note 5.
Korematsu v. United States, 323 U.S. 214, 246 (1944).
R.Sunstein, Minimalism at War (Preliminary Draft 12/3/04), SOCIAL SCIENCE RESEARCH NETWORK,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=629285.
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or neutrality of judges or an inherent tendency towards the protection of the

content of rights. For instance, judges cannnot always know whether they are
right, even about the meaning of the constitution.18 Even constitutional doctrine
could be interpreted in various ways - the presence of the emergency powers
doctrine in the constitution could facilitate deference to the executive, while a
basic structure doctrine could allow judges to subject laws to strict scrutiny.19 It
would, therefore, be more useful to assess the conditions under which a judge
might protect or imperil the civil liberties of citizens, including minorities.
I. SCALING JUSTICE AND ANTI-TERROR LAWS

In Scaling Justice: Indias Supreme Court, Anti-Terror Laws and Social Rights,20 I
argued that judges, who want their judgements to be perceived as legitimate (i.e.
principled, objective, and just), have to carve out legitimacy within the scope and
opportunities offered by four elements: the presence and content of laws;
institutional experience and norms; political configurations; and public concerns.
The quest for legitimacy on the part of the judiciary, I argued, increased after a
bout of political authoritarianism. I tested the argument through an econometric
analysis of cases dealing with civil liberties and social rights (the rights to health
and education), outlined the conditions and processes by which one element trumps
the others in influencing a judgment, and assessed the implication for the content
of the rights. The empirical evidence confirmed that the process of judging involved
constant negotiation with multiple identities of a judgeas a member of a state
institution that is subject to the influences of the political wings; as a member of
a judicial structure with its own norms; and as a citizen-member of society.21 An
econometric analysis of 185 cases (from 1950-2006) - 65 pertaining to preventive
detention, and 120 to anti-terror legislation, the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (TADA)- demonstrated that in the last six decades, successive
Supreme Court judges crafted rulings that would be non-confrontational vis-a-vis
18
19
20
21
Id.
Epstein, Ho, King and Segal, supra note 12.
SHYLASHRI SHANKAR, SCALING JUSTICE: INDIAS SUPREME COURT, ANTI-TERROR LAWS AND SOCIAL
RIGHTS, (2009).
A Supreme Court judge in India tends to be middle class, Hindu, from a professional family,
predominantly male, armed with an LLB and some experience as a lawyer for a state government
before joining the judiciary.
107
the state, while simultaneously supporting the rights of vulnerable groups. A

Supreme Court judge typically upheld the petitions of Muslim minorities and
other citizens who did not advocate secessionism, supported the state against those
espousing Kashmiri separatist ambitions, and in framing a judgment, was more
likely to focus on the facts of the case rather than decide on the basis of prior
ideological or personal biases.22 The book concluded that it was apt to call an
Indian Supreme Court judge an embedded negotiator who had a complex and
nuanced relationship with the law, institutional rules, politics, and public concerns.
The analysis in Scaling Justice highlighted nuances in judicial behaviour on civil
liberties that corroborated and challenged several aspects of existing theories. First,
the deference of the court to the other wings of the state is determined less by
institutional or constitutional dictates, and more by the nature of the crisis, adding
texture to the executive unilateralism position. I compared judgments issued in
the years that India was embroiled in a war with those delivered in non-war years,
but did not find a significantly different treatment of the accused during wars.23
The behaviour of Indias Supreme Court (henceforth, SC) during wars does not
follow the conventional view that judges would be pro-state during a crisis. A
judge seemed to distinguish between two types of threats. Terrorist attacks (rather
than wars) evoked more deference to the other wings of the state, but not necessarily
at the cost of incursions into the civil liberties of minority groups. A Supreme
Court judge was more likely to rule in favour of the state after a terrorist attack
than during a war. Why that is so is harder to answer. I had speculated that this
was because terrorisms targets were both citizens and soldiers, which brought
concerns of public safety and a citizens security to the fore. In contrast, a war is
22
23
116 judges served on different benches to hear 194 anti-terror cases. Of these, 86 judges heard
more than 1 case, and I created a new variable that pertained to this group, and had four subcategories. About 40% of the judges were pro-state 50 to 75% of the time, 19% were pro-state 75
to 99% of the time, 10% were always pro-state, 7% were always anti-state, and 20% were antistate less than 50% of the time. A probit analysis on the characteristics of these judges, like years
served, religion, home state, and party configurations during their appointments to the higher
judiciary, among others was conducted. The only significant finding was that judges who decided
larger number of anti-terror cases were more likely to change their mind as compared to judges
who decided fewer cases. Neither a probit nor a chi-square test produced any other significant
results. Perhaps the statistical results could not pick up variations because these 86 judges may
have had too many characteristics in common.
These cases involved civilians and pertained to grain hoarding, possession of explosives, and
threats to state security, among others.
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usually fought only by soldiers. The courts view in PUCL v. Union of India24
seems to endorse my speculation. The petitioners, who were civil rights activists,
challenged the constitutional validity of POTA. Pointing out that the fight against
terrorism was not a regular criminal justice endeavour, but rather a defence of the
nation and citizens, the court said that terrorism was a new challenge for law
enforcement. It said, To face terrorism we need new approaches, techniques,
weapons, expertise and of course new laws (such as POTA).
Secondly, the analysis revealed that even if the court is deferential to the executive
during a crisis, it can protect the rights of minorities under certain conditions,
such as in the immediate aftermath of political authoritarianism. The Supreme
Court of India, which had failed to safeguard civil liberties during the Emergency
from 1975-77, balanced two imperatives its need for legitimacy in the eyes of
citizens, and its desire to avoid overt conflict with the political elite. Questioning
the validity of detentions under anti-terror laws would have pitted the judiciary
against the other wings of government, and could even have tarred the institution
with an anti-national and anti-citizen imagea charge the apex court was trying
to reverse in the post- emergency period.25 Therefore, on the one hand, judges
followed the proclivity of the Indian Constitution towards giving the state immense
power to discipline and punish recalcitrant individuals. Despite earning the tag
of judicial activism in the arena of socio-economic rights, there was a noticeable
absence of such activism on the rights of detainees under anti-terror laws, and this
was consistent with the hawkish position of successive governments that national
security trumped civil liberties. On the other hand, they made a distinction between
the religious and political affiliations of minorities, and protected those who did
not have separatist political goals. Judgments were significantly less likely to favour
the state against a Muslim litigant without separatist ambitions, but more likely
to support the state when Kashmiri separatists were in the dock. Thus, overall,
while the court supported the states coercive position (confirming Covers analysis
of its jurispathic nature), the judges also found ways to oppose the violence of
other state organs by scrutinizing cases registered against religious minorities. I
assessed the Supreme Courts attitude towards Muslims charged under preventive
24
25
PUCL v Union of India, (2003) 4 SCC 399.

S.P. SATHE, JUDICIAL ACTIVISM IN INDIA (2002).
109
detention, TADA and POTA during those years when India was involved in a
war. Judgments were 23% less likely to favour the state when a Muslim accused
was involved in a case decided in a war-year, leading one to the conclusion that in
a war- related crisis, vulnerable minorities are not more at risk in the legal arena.
What of a crisis induced by terrorism? I tested judicial behaviour towards Muslim
plaintiffs/defendants after 2001(this year saw the September 11 attack on the World
Trade Centre in New York and the December 13 attack on the Indian Parliament),
but the small size of the dataset did not allow me to reach a definitive conclusion.
Thirdly, the econometric models demonstrated that judicial independence was
less of an explanatory variable in the way judges behave on civil liberties.26 The
crisis of legitimacy and the nature of the national crisis were more influential
explanations for the courts judgments. Once such scrutiny was established, judges
continued the practice because of institutional (collaboration with colleagues) and
legal norms (precedents).
In the concluding discussion in Scaling Justice, I had hypothesised that POTA
cases would see more pro-state rulings, particularly after incidents of terrorism,
but that Muslim minorities would not be unduly targeted. Is my hypothesis
supported by the empirical evidence? How has POTA been used, and what are
the implications for civil liberties in general and for the civil liberties of muslim
minorities in particular? Does the protection for Muslim minorites continue in
POTA cases particularly when there is no clear political (separatist) ambition? I
will address these questions in the following sections.
The Scope of Anti-Terror Laws
India, the worlds most populous parliamentary democracy with the most
powerful court in the world27 following the common law system, has a large
Muslim minority with a complicated history of strife with the Hindu majority.
26
27
I took the Second Judges case (Supreme court Advocates-on-Record Association and Anr. vs.
Union of India, 1993 Supp (2) SCR 659) in 1993 (when the court decreed that the concurrence
of the Chief Justice was required in judicial appointments thus minimizing the de jure dependence
on the political wings) as the cut-off point and examined the probability of a pro-state ruling
before and after 1993. There was very weak corroboration (at the 10% significance level) that
post-1993 verdicts were more likely to be anti-state than pre-1993 rulings.
George Gadbois, Indian Supreme Court Judgesa Portrait, 3 LAW & SOCY REV. 31736 (1968).
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It has experienced secessionist movements in Kashmir, the North East, and Punjab.
Polarization of Hindus and Muslims has increased in recent decades with a
resurgence of Hindu nationalism and its ascendance to power in the national and
regional arenas. The Indian state has designed a vast panoply of anti-terror and
preventive detention laws since independence (see Appendix).
POTA included as crimes activities performed with an intent to threaten national
integrity, and allowed for admissibility of confessions extracted in police custody.
The Appendix demonstrates that the definition of actions included in the scope
of these laws has grown broader, and that the burden of proof has shifted from
the prosecution to the accused, thus impacting negatively on civil liberties of all
citizens. More recently, after repealing POTA (which was enacted by the BJP-led
National Democratic Alliance coalition), the Congress-led United Progressive
Alliance (UPA) government amended the Unlawful Activities Prevention Act
(UAPA) of 1967 in 2004 and again in 2008. UAPA 2008 draconised some elements
(the definition of intent included likely to threaten), reduced the stringency of
other elements (detention without bail was reduced from six months in POTA to
three months in UAPA 2008, and confessions made during police custody were
not to be admissible as evidence), and retained some provisions (e.g. the accused
can be in police custody for 30 days). The features retained by UAPA 2008 (drawn
from POTA) that civil liberties activists have found troubling included: (i) a vague
definition of terrorist act, and abetment (Section 15); (ii) absence of statutory
procedures on including organizations in the terrorist list, with the result that
the onus of establishing innocence, without knowing the reason for their inclusion,
rests with the proscribed organization; (iii) assignment of official immunity to
state officials involved in counter-terrorism, which has the effect of impeding the
prosecution of officials acting in bad faith (Chapter VII, Section 49), and; (iv)
allowing the death penalty for those whose terrorist act shall, if such act has
resulted in the death of any person (Chapter IV, Section 16a). In the next section,
we will assess the impact of the judiciarys interpretations of POTA cases on civil
liberties including the liberties of minority groups.
Comparison of POTA, TADA and Preventive Detention cases
First, a descriptive analysis of the POTA cases would be useful. Of the 103 POTA
cases in the higher judiciary from 2001 to 2011, about 20% were appealed in the
apex court. The High Courts of Gujarat and Tamil Nadu accounted for about
20% (each) of the cases, followed by Maharashtra/Bombay (13%) and Delhi (12%).
111
In 92% of the cases, the petitioners were non-state, which means that the judgments
in the lower courts (trial/special courts) have been overwhelmingly pro-state. Over
80% of the cases dealt with bail, custody, challenge of interlocutory orders and
writs, and clarifying the legal position vis--vis POTA. Over 70% of the cases
were framed by the state as a terror case pertaining to actual and imminent attacks
(48%), recovery of arms and funding of terror (23%). Of these, about 37% involved
Islamic terror, 19% were Naxal-related, 8% pertained to the LTTE, and about
10% involved communal riots.
Table 1: Issues in POTA Cases
Table 2: Judgments in POTA
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A comparison of judgments in preventive detention, TADA and POTA cases

reveals the following:28 First, there is a shift away from pro-state rulings after the
Emergency i.e. in TADA cases (as compared to preventive detention cases) but a
return to pro-state judgments in the POTA cases. The state obtained a favourable
ruling in less than half the TADA cases, as compared to over 65% of preventive
detention cases and 60% of POTA cases. In Scaling Justice, I argued that after a
crisis regime like the Emergency rule of 1975-77 in India, the judiciary recovers
public legitimacy by casting itself as a protector of vulnerable groups.29A judge
was 48% more likely to give a pro-accused ruling in a TADA case as compared to
preventive detention case, indicating a shift by post-Emergency judges. So what
explains the switch to pro-state rulings in POTA? We shall explore some of the
reasons for this behaviour shortly.
Secondly, in all three sets of cases, Supreme Court judges upheld the right of
Parliament to make draconian laws, confirming that the judiciary follows the
constitutional emphasis of privileging security over the rights of detenus.30 Judges
interpreted the laws in line with what they saw as the intent of the Constituent
Assembly - fundamental rights were hedged in by restrictions imposed on grounds
of National Emergency to be determined by the Parliament, and legal rights were
suspended in cases dealing with state security. In PUCL v Union of India31 where
the validity of POTA was challenged, the Supreme Court said that the need for
the Act is a matter of policy and the court cannot go into the same, once legislation
is passed, the government has an obligation to exercise all available options to
28
29
30
31
Please note that while the TADA and preventive detention cases pertain to the Supreme Court
of India, the POTA cases include the judgments of the High Courts and the Supreme Court.
The CJIs opinion in the Habeas Corpus (ADM Jabalpur V. Shivkant Shukla AIR 1976 SC 1207)
case (which challenged an emergency law, the Maintenance of Internal Security Act, 1971) in
1976 that the judiciary should abandon all scrutiny of governmental control of individual activities
once an emergency was proclaimed, was vilified in the public domain particularly since the
Executive had egregiously misused such powers. One of the concurring justices, Chandrachud,
who had agreed with the majority view even apologized to the public much later saying that he
wished he had had the courage to resign during the trial. See Speech to FICCI on 22 April 1978,
Hindustan Times, 23 April, 1978.
While special courts or the High Court functioned as trial courts for anti-terror cases, the
Supreme Court had the final word on appeals and constitutional challenges to the anti-terror
laws. In TADA cases, which were tried by special designated courts, appeals had to be lodged
within 30 days in the Supreme Court.
PUCL v Union of India, (2003) 4 SCC 399.
113
prevent terrorism within the bounds of the constitution. Mere possibility of abuse
cannot be a ground for denying the vesting of powers or for declaring a statute
unconstitutionally.
Thirdly, the scope of issues to which anti-terror laws have been applied has
expanded over the decades. In Ram Manohar Lohia v. State of Bihar,32 the Court
explained the difference between three concepts: law and order, public order,
and the security of the state by referring to three concentric circles. The largest
circle represented law and order, the next represented public order, and the smallest
represented security of the state.33 The courts view was that every infraction of
law must necessarily affect order, but an act affecting law and order may not
necessarily also affect the public order. Likewise, an act may affect the public
order, but not necessarily the security of the state. Anti-terror laws were applicable
only to those actions that affected the security of the state.
Let us use the courts yardstick to classify the cases. Using the description in the
judgment, we slotted the cases into seven categories.34 These were village feuds,
criminal cases, security of the state, arms and possession of country-made guns
without a license, grain hoarding, and possession of explosives unrelated to security
threats. The spirit of the law and the apex courts delineation of the concentric
circles argument demands the use of a security law only if the persons actions
threatened the security of the state. About 53% of preventive detention cases
and 65% of POTA cases pertained to security of the state, compared to only 35%
32
33
34
Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.

The Court agreed with Lohia that the magistrate wrongly used public order and law and order
synonymously. A threat to law and order, mentioned in detention order, was not the same as
public order; hence the order was invalid.
I used the description of the case given by the judge, thus minimizing the effect of my own biases
in the classification. If the judgment said that the case involved a dispute between villagers that
did not threaten the security of the state, it was coded as village feud. These cases include
instances such as confirmation by an eye witnesses that the accused shot a man with an AK-47
gun to take his tractor, or when a man in a village shot his neighbour with a gun for which he
did not have a license. Criminal cases were those where the issue was criminal (for example, gang
warfare) and the police used anti-terror laws to detain criminals. Cases where the judgment said
involved a threat to the security of the state were coded as security. Cases involving grain
hoarding (usually during a war) were present only in the preventive detention dataset. There
were two more categoriespossession of arms without a license, and possession of explosives
unrelated to security threats (for example, an accidental explosion of firecrackers). Anti-terror
laws were supposed to be used for cases in the security of the state category.
114
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2015
of TADA cases. The judge made a distinction (particularly in the TADA cases)
between those that dealt with criminal acts in over 60% of such cases he rejected
the use of anti-terror lawsand those that affected the security of the state. In
POTA cases on the other hand, the trend seems to have reversed since the judgments
of the higher judiciary classified about 60% of the cases as relating to a threat to
the security of the state. Other evidence indicates that there is over-use of POTA
laws.35 What is also striking is that about a fifth of the POTA cases did not relate
to terrorism.
It could be pointed out that we live in a more dangerous world and therefore
POTA is being used more frequently. I tested to see if the perception that security
threats have increased actually reflects reality. As a proxy, the sufficiency of the
evidence in cases classified by the court as security threat to the state was assessed.
Of the forty POTA cases framed by the prosecution as pertaining to the state
security, the judiciary found sufficient evidence in only half the cases. This implies
three things. First, that the tendency of the prosecution to frame the case as a
threat to security of the state has risen since over 50% of POTA cases had that
rationale attached to them. In Scaling Justice, I had predicted that if the state
prosecution structures the case as involving terrorists or terrorism, the state is
more likely to be the winner. Though the dataset on POTA is very small the
higher success rate of POTA cases implies a worrying trend for civil liberties,
particularly if the shift occurred because the cases were framed as involving
terrorist threats to the state.36 The prediction has been borne out by the larger
dataset. Secondly, the court has not blindly adopted the prosecutions rationale
since in 10 cases (one-fourth) it found insufficient evidence for such a claim. Thirdly,
the perception of a threat seems to be exaggerated.
What does the comparison tell us about the effect of POTA on the civil liberties
of citizens? First, it highlights the fact that in POTA cases, judges have not reduced
the scope of over-use of security laws by the police and other authorities. The
second implication is that in a security-conscious environment, judges interpret
35
36
The over-use of anti-terror laws is evident in the gap between the numbers arrested and the ones
actually tried and then convicted. The findings of three POTA Review Committees revealed
that of the 1529 POTA accused, no prima facie evidences was found against 1006, that is, POTA
was not applicable to two-thirds of the accused, most of whom were charged in the states of
Gujarat and Jharkhand. See SINGH, supra note 1, for an analysis of POTA and TADA and the
negative implications for democracy.
SHANKAR, supra note 20, at 103.
115
the laws in a manner that supports the state in the face of security threats, however
broadly defined. In the TADA and preventive detention cases, there was a 19%
increase in the probability of a pro-state outcome when the case pertained to
security concerns, while in POTA cases this probability has doubled. This backs
the arguments of a conservative37 thrust of the court in its response to challenges
to the territorial integrity of the state, and echoes the behaviour of judges elsewhere
in the world. The third implication is that the civil rights activists are right to
charge the police and other authorities with over use of anti-terror laws to
imprison criminals and others unrelated to terrorism. Such over-use debunks the
emphasis by many (such as the Malimath Committee) on the need for strong antiterror laws. It also provides a strong rebuttal to those who argue that the magnitude
of possible destruction by terrorists necessitates firm and preventive response from
the state through intrusive anti-terror legislation.38 Instead, our findings support
the view that such legislation could increase the propensity of state agencies to use
these laws to arrest those unconnected with crimes against the state. Several studies
and reports by civil rights activists and scholars show the vast slippages between
arrests and convictions, the disproportionate arrests of Muslims, and the insidious
normalization of these laws by their incorporation into ordinary criminal law.39
Let us now turn to the effect of judicial interpretations of POTA cases on the
civil liberties of minorities, particularly Indian Muslims.
II. IMPLICATIONS FOR CIVIL LIBERTIES OF MINORITIES
In preventive detention and TADA cases examined in Scaling Justice, neither
Muslims nor Sikhs were targeted by the judges.40 Indias Supreme Court judges
made a distinction between the religious and political affiliations of the minority
37
38
39
40
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY- VOLUME 1 (4th ed.1991);
M.P. JAIN, CONSTITUTIONAL LAW: VOLUME 1 AND 2 (2003); Baxi, supra note 1.
For arguments that war on terror requires surrendering some civil liberties, see Floyd Abrams,
The First Amendment and the War Against Terrorism, 5 U. PA. J. CONST. L. 1, 5, 1011 (2002);
Philip B. Heymann, Civil Liberties and Human Rights in the Aftermath of September 11, 25
HARV. J.L. & PUB. POLY 441, 4412 (2002).
Anil Kalhan, Colonial Continuities: Human Rights, Terrorism, and Security Laws in India, 20
COLUM. J. ASIAN L. 93 (2006); T HE TERROR OF POTA AND OTHER SECURITY LEGISLATION A
REPORT ON THE PEOPLES TRIBUNAL ON THE PREVENTION OF TERRORISM ACT AND OTHER SECURITY
LEGISLATION (Preethi Verma ed., 2004); SINGH, supra note 1.
In Gujarat, the percentage of Muslims in the state was 9%, but they made up over a quarter of all
jail inmates. Of the 75 instances of poor circumstantial evidence and due process not followed,
only a quarter had Muslim litigants. This implies that cases with Muslim accused were not more
likely to be dismissed for flimsy evidence.
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2015
litigants, and supported Muslim minorities without separatist ambitions, were

anti- Kashmiri separatists, and pro-state after a terrorist crisis (without targeting
minorities). More experienced judges were more likely to give the benefit of doubt
to Muslim litigants.41 Judges, particularly Hindu judges, shunned majoritarianism
and made a distinction between religion, separatism and security of the state, and
between Sikh and Kashmiri separatism.42 A judge was more likely to be anti-state
when the litigant had no political affiliation. A judge was 21 per cent less likely to
favour the state when a Muslim was the plaintiff or defendant. In cases where the
accused was a Muslim (not a Sikh or a Hindu), decisions by a Hindu judge (who
comprised 87% per cent of all Supreme Court judges in our database) were 34%
less likely to favour the state. TADA cases involving Muslim litigants were 38%
lesslikely to be decided in favour of the state, as compared to preventive detention
and POTA cases.
The models did not display significantly different treatment for Khalistanis. I had
suggested that the harsh attitude towards Kashmiri militants could be because
unlike Khalistani separatism, which was treated more as a law and order issue and
tackled primarily by the police, the historical indeterminacy of Kashmirs status,
the tussle with Pakistan, and the deployment of the Indian army contributed to
the perception of Kashmiriyat as a threat to the integrity of the Indian state. In
contrast, despite the utilization of the Indian army in Punjab on several occasions
including Operations Bluestar and Black Thunder, Khalistani separatism was seen
as an indigenous movement. Textual analysis of some judgments after 2000 shows
that judges gave the benefit of doubt and weaker sentences to Khalistanis citing
the pacification of militancy in the Punjab. Judges reverted to their old attitude
of giving the benefit of doubt and weaker sentences to Khalistanis. For instance,
the judgment in one case said:
41
42
We ran a similar regression with preventive detention cases, but found no significant results
which means that judges deciding the pre-emergency preventive detention cases were neither
more nor less likely to rule for the state when a Muslim accused (as compared to Hindus or Sikhs)
was involved.
Note: Unless otherwise specified, the statistical significance of all the results discussed in the
paper have p-values that range between .001 to .05.
We examined the judgment and if the judge linked the litigant to Kashmiri, Khalistani, extremism
(Naxalite and other forms), then the litigant was coded as having a political affiliation. Otherwise,
the case was coded as no affiliation. This allows us to judge the judges on the basis of their
statements without including ones own opinions. We had information on political affiliation
drawn from the judgments for 104 (about 50% of our cases). Of these, 23% had affiliation with
Khalistan (Sikh homeland), 24% with Kashmiriyat (Kashmiri homeland).
117
Nonetheless, we are inclined to show some leniency in the matter of

sentence despite the largeness of the explosive substances involved.
This is because the situation in Punjab has now admittedly improved
very much and peace has come back to that region. Therefore, it is
not necessary in this case to award a sentence beyond the minimum
fixed by the statute. We, therefore, reduce the sentence of
imprisonment to five years as for each of the appellants.43
In TADA and preventive detention cases, the higher likelihood of pro-state rulings
during single-party majorities did not correlate with an anti-minority attitude of
Supreme Court judges.44 This indicates that a sense of crisis rather than the
dominant coalition partners ideology influenced the pro-state nature of the
judgments. The judges did not target religious minorities even when the political
party in power had an ideological anti-minority preference. The BJP-led rule
from 19982004 coincided with heightened security concerns induced by a low
intensity war with Pakistan in Kargil in 1999, nuclear detonations by India and
Pakistan in a bid for nuclear power status, and increased terrorist threats from
global jihadis and separatist groups. Of the seventy one judgments issued during
the NDA rule, 64% were anti-state during 19982000, while 70% of judgments
were pro-state after 2001. Even in an atmosphere of increased concerns about
terrorism by Islamist jihadi groups led by the Al-Qaeda and others after 2001, the
Supreme Court of India did not target Muslims.45 Does this pattern hold for
POTA cases? What is POTAs impact on minorities?
43
44
45
Jeet Singh and Anr v State of Punjab, (2000) 9 SCC 588.

Judges were strongly likely to be anti-state during a coalition/minority government as compared
to single-party majority rule (Table 4.1, Model 5, Scaling Justice). In 53% of the judgments, the
Congress party led the Central Government (either as a single-party majority or as the head of
a minority or coalition set up), while the BJP lead a coalition for 44% of the judgments, and other
parties for the remaining 3%. A judge was 17% more likely to favour the state when the BJP was
in power heading a multiparty coalition at the centre (Model 1, Scaling Justice). This is a
puzzling result since judges were more likely to rule against the state during coalition governments.
Our results support the view held by scholars that courts will be more willing to scrutinize
rights- based cases during coalition rule because of the partisanship and immobilism besetting the
elected institutions. See MARTIN EDELMAN, COURTS, POLITICS, AND CULTURE IN ISRAEL (1995).
In Scaling Justice, I tested the behaviour of judges towards Muslim litigants after 2001, but found
no significantly different treatment of these litigants.
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First, the Muslim minorities who are only 13.4% (2001 Census) of the population,
comprise almost 40% of the accused in POTA cases. In about 65% of the cases
with Muslim accused, the prosecution framed it as a terror case, and over 80% of
these cases were classified as Islamic terror. The state emerged the victor in about
66% of these cases where a Muslim was among the accused, while the corresponding
percentage for Hindu accused was 49%. I ran a probit on the characteristics that
increased the marginal probability of a pro-state ruling. Cases in the Gujarat HC
are more likely to be pro-state than cases in other high courts, while the cases in
the Supreme Court are neither more nor less likely to favour the state. However,
the religion of the judge and of the accused did not show significance, implying
that an anti-Muslim bias is not apparent on the part of the judge, thus continuing
the pattern from the earlier TADA and PD cases.
Secondly, the state has increasingly framed POTA cases as involving terrorists or
terrorism, and the court has agreed with such a framing in about 70% of the
POTA cases. This is a departure from the pattern in TADA cases. While judges
tend to rule for the state in cases dealing with security threats, the more problematic
aspect is the question of what constitutes a security threat since the parliament did
not include definitions of terrorism and terrorist act in the content of TADA
and POTA. In TADA cases, the judges used the scope offered by ambiguities in
the definitions to dismiss cases but less so in the case of POTA. This could be
because of the larger scope offered by the definition of an act that is a threat to the
security of the state intent to threaten in POTA, and intent that is likely to
threaten in UAPA 2008 (see Appendix). The large ambit of the definition could
be a reason why a majority of the POTA and post-POTA cases are classified by
the prosecution and by the court as terror-related cases, as compared to 42% of
TADA and preventive detention cases. A more worrying phenomenon in POTA
cases (albeit a few), particularly for the Muslim minorities, is that in some instances
where the court saw a threat to the security of the state, it was liable to ignore lapses
in the procedures and the paucity of evidence and rule in favour of the state. It
sends worrying signals for the due process aspects of the law in anti-terror cases.
Thirdly, we saw in preventive detention and TADA cases that the Court made a
distinction between the religious faith of the litigant and political goals of separatism
and punished only those espousing separatist goals. Judgments were significantly
less likely to favour the state against a Muslim litigant without separatist ambitions,
but more likely to support the state when Kashmiri separatists were in the dock.
119
The problem in POTA is in the way the cases are framed (as Islamic terrorism)
and the greater leeway given by the court to the state for some types of framing.
Cases framed as Islamic terrorism were more likely to receive a pro-state verdict
than cases framed as Naxal, LTTE, communal riot and other cases. But the term
Islamic terrorism is vague and does not carry with it a separatist intent as Khalistan
and Kashmiriyat do. As a result, judges seem less able to make a distinction between
the religious and political aspirations of the litigants in POTA cases.
CONCLUSION
The profile of POTA cases affirms the claim of civil rights activists that the tendency
of the police and the prosecution to classify criminal and other non-security of
the state related crimes as terrorism, has shrunk the civil liberties of citizens and
of vulnerable minorities. The judiciarys interpretations, which show an increasing
propensity to allow more cases under such laws while also diluting the protection
of civil liberties, have worsened matters. For instance, the court allows for noncompliance with the requirement for judicial custody at times of urgency, but
the notion of urgency is ambiguous.
In Scaling Justice, a cross tabulation suggested that over 60% of the judgments
favoured the state when there was a single-party majority government, as compared
to only 46% during coalition rule. The econometric results affirmed it; judges
were strongly (27%) likely to be anti-state during a coalition/minority government
as compared to single-party majority rule. If courts, who make a distinction
between a terrorist strike and war, are also more likely to be pro-state after a
terrorist attack, the possibility of more pro-state rulings in anti-terror cases is
much higher in a political scenario where terrorism occurs during a majority
government. The emergence of a majority government led by a party that espouses
a Hindutva ideology in a situation of domestic and international attacks by groups
claiming to be Islamic, creates a situation of majority party government and a
crisis situation. The saving grace is that judges in Indias higher judiciary do not
demonstrate an anti-Muslim bias, thus contradicting the general applicability of a
theory that judges will be biased towards their own ethnic or religious groups
after a terrorist attack. Shayo and Zussman for instance, have found an in-group
bias (by Arab and Jewish judges towards their own groups) that is strongly
associated with the intensity of terrorism in the vicinity of the court in the year
120
Vol. 11(1)
Socio-Legal Review
2015
preceding the ruling.46 However, the disproportionate numbers of Muslims charged

with terrorism and imprisoned (while awaiting trial), the growing scope of antiterror laws and the propensity on the part of the court to ally with the other
arms of the state after a terrorist strike do not bode well for civil liberties. While
the political ideology of the party in power seemed to be less of a factor in
influencing the courts judgments - the tenor of judgments became more pro-state
after 2001, and not after 1998 when the BJP led a coalition government at the
centre we do not have adequate data (cases) to test whether the ideology of the
party in power will indeed matter, particularly for the Muslim minority, in a
situation when that party runs a majority government and there is an ongoing
perception of a national security crisis. The creation of a new National Judicial
Appointments Commission in 2015, with representation from the executive, which
will be able to play a greater role in appointing the two other non-judicial members,
may reduce the ability of the judiciary to withstand political pressure.47 In the
past, the judiciary as an institution was able to stymie such pressure (at least at the
entry point) by seizing the power to appoint judges. But it is unlikely to be able
to do so anymore. Other factors such as the urge on the part of some judges to
garner post-retirement appointments to tribunals and other bodies will continue
to complicate the judiciarys capacity to create a zone of autonomy and impartiality
from the political arm of the state. These developments do not bode well for civil
liberties in general, and for vulnerable minorities in particular.
46
47
Shayo and Zussman, Bias in the Shadow of Terrorism, THE QUARTERLY JOURNAL OF ECONOMICS
(2011), doi: 10.1093/qje/qjr022.
The Commission will comprise the CJI and two senior judges in the Supreme Court, the Union
Law Minister, and two eminent personalities appointed by a selection committee with the CJI,
the Prime Minister and the Leader of the Opposition. The veto power rests with any two
members who disagree with the appointment or transfer of a High Court or Supreme Court judge.
121
Appendix
Issue
Definition of
acts
that
pertain
to this
law
Preventive
Detention
Act, 1950
Armed
Terrorist Prevention Unlawful
Unlawful
Forces
and
of
Activities Activities
Special Disruptive Terrorism Prevention Prevention
Powers
Activities
Act,
(Amend(AmendAct, 1958 (Prevention) 2002
ment) Act, ment) Act,
Act, 1987
2004
2008
With a
view to
prevent
him
from
acting in
any
manner
prejudicial
to (a) the
defence
of India,
relations
of India
with
foreign
powers
or the
security
of India;
or (b)
the
security
of a state
or the
maintenance of
public
order.
Can fire
upon
(after due
warning),
search
premises
and arrest
without a
warrant
for the
maintenance of
public
order, to
prevent
cognizable
offence in
areas that
it declares
disturbed
areas.
Intent to
overawe
the
Government as
by law
established
or to
strike
terror or
alienate
any
section of
the people
or to
adversely
affect the
harmony
amongst
different
sections of
the
people.
122
Intent to Same as
threaten POTA.
integrity,
security
or
sovereignty of
India or
to strike
terror in
the
people.
Intent
that is
likely to
threaten.
Widens
the scope
and
includes
offences
related to
radioactive or
nuclear
substances
and
attempts
overawe
state or
public
functionaries
(similar to
TADA).
Vol. 11(1)
Issue
2015
Socio-Legal Review
Preventive
Detention
Act, 1950
Armed
Unlawful
Forces
and
of
Powers Activities
Act,
Act, 1987
2004
2008
Bail
30 days to
1 year (on
hearing
prosecution)
Any
person
arrested
and taken
into
custody
and given
to officer
in charge
of the
nearest
police
station
with the
least
possible
delay,
together
with a
report of
the
circumstance
occasioning
the arrest.
180 days
extendable
to a year
on public
prosecutors
information.
180 days;
police
custody
upto 30
days;
charge
sheet to
be filed
in 180
days; no
bail for
nonIndians
who have
entered
the
country
illegally.
Burden
of
proof
On
prosecution.
N/A
On the
accused.
Adverse
inference
drawn if
arms,
ammuni-
Court to On the
draw
prosecuadverse
tion.
inference
if arms
recovered
from the
123
Detention
without
bail for
upto 90
days;
police
custody
upto 15
days. No
blanket
denial of
bail.
Detention
upto 90
days;
upto 30
day police
custody;
chargesheet
within
180 days;
blanket
denial of
bail to
nonIndians.
On the
accused.
Issue
Preventive
Detention
Act, 1950
Armed
Unlawful
Forces
and
of
Powers Activities
Act,
Act, 1987
2004
2008
tion found
on person
or property and
fingerprints of
accused on
them or at
site of
crime or if
financial
assistance
granted.
Confes- Not
sions in admispolice
sible
custody
Special
courts
Separate
advisory
board
Not
Admisadmissible sible
Not
Yes
under
this Act
but the
Disturbed
Areas
(Special
Courts)
Act,
1976.
accused
or his
fingerprints
are
found at
the site
of the
incident
Admissible as
evidence
May be
constituted
124
No special Not
provision admissible
No.
No.
Vol. 11(1)
Socio-Legal Review
2015
FINDING SUBALTERN VOICES: A CASE FOR

PRESERVATION OF COLONIAL LEGAL PROCEEDINGS
Kriti Sharma*
Colonial courts are seen as places of action for the two-facedness of
colonial lawwherein the British sought to introduce universalist
principles of adjudication, such as the Rule of Law, yet also appeased
the native legal conservatives and traditionalists who formed the
dominant class. It is realized that in this process the narratives of colonized
subalterns- of adivasis, dalits, gender and religious minorities are often
found to be lost. In a quest to find their voices and to register their
claims, revisiting our legal history is necessary; but has been made
impossible due to an inexcusable neglect of legal proceedings
documentation. The author provides a detailed firsthand account of the
disheartening condition of archival sections in the Bombay, Calcutta
and Madras High Courts, which have been witnesses to the legal process
in the sub-continent for over a century and a half. A case is then made
out for digitization of colonial court records to ensure their longer
sustainability for the future and ensuring possibilities for further research.
There is a certain virtue in history.1 Of course you can quote (or rather misquote)
Hegel2 and believe that people and governments have never learned anything from
the past. Alas, even by Hegels own admission we know this only from the
accumulated experience of mankind! The short point being that history should
*
1
2
Legal Researcher, Council for Social Development, Hyderabad. Email:

kritisharma.nalsar@gmail.com. I extend my gratitude to Justice K. Chandru, Prof. Nandini
Chatterjee, Prof. Kalpana Kannabiran, Amit George and Prabhat Kumar for their valuable
comments on drafts of this piece. The experiences are carved out of research work undertaken
between 2012 and 2014 for Prof. David Schorr and Dean Ron Harris, Tel Aviv University, The
Buchmann Faculty of Law. I extend a special thanks to Gaganjyot Singh at NLSIU, Bangalore
for research assistance provided at the Delhi High Court. The mistakes are all mine.
See Jim Phillips, Why Legal History Matters?, 41 VICTORIA UNIVERSITY OF WELLINGTON LAW
REVIEW 293 (2010).
"What experience and history teaches us is that people and governments have never learned
anything from history, or acted on principles deduced from it. George Wilhem Friedrich Hegel.
125
not be ignored, particularly when it has a direct bearing on our legal system and
consequently on the State and its people. Our access to the past is greatly dependent
on written and oral works,3 preserved either meticulously or inadvertently, and
the only way to ensure our continued learning is by safekeeping our archives. As
legal historians, the colonial era is of particular interest due to the continuing
impact it has on our legal thought process4 and the fillip given by subaltern studies,5
not discounting that these records were tediously preserved by the British.6
LEGAL DEVELOPMENTS- THE BRITISH AND BEYOND
The common law system that forms the backdrop of Indias existing legal system
made its way on to the Indian soil with the advent of the British Empire; to put it
more precisely - with the grant of a charter to the East India Company by King
George I in 1726.7 A plethora of legal experiments started soon thereafter and the
Indian subcontinent became a tropical factory of law8 as the colonizers went
about substantially altering rules, and the lives, of those they had colonized.
Today, moving beyond the trajectory of formal law making, there is growing
scholarly work on colonial legal developments which attempts to account for the
6
7
The archival arenas are greatly expanded by combining vernacular and oral accounts, memories
and myths, material realities and rhetorical representations which were often not taken into
account in earlier historical research. (See further Charu Gupta, Introduction, in GENDERING
COLONIAL INDIA: REFORMS, PRINT, CASTE AND COMMUNALISM 2 (Charu Gupta ed., 2012).
Upendra Baxi, Colonial Nature of the Indian Legal System, in SOCIOLOGY OF LAW (Indra Deva
ed., 2005). Various colonial legislations and conventions are applicable today in original or
modified forms.
The Bottom Up Approach has led to re-looking the histories of the marginalized- women,
dalits, tribals and religious minorities- hitherto unheard and unaccounted for in the dominant
view of history. See for instance, Madhav Gadgil & Ramachandra Guha, Ecological Conflicts and
the Environmental Movement in India, 25(1) DEVELOPMENT AND CHANGE 101, 105 (1994) on
resistance from belowin context of Indian forest law.
In 1771 itself the East India Company appointed a Keeper specially to preserve records. The
British colonial rule thereafter became one of the most documented administrations of the time.
It is with this charter that in India common law principles were first formallyintroduced and
Mayors Courts were established in Madras, Bombay and Calcutta. Though, by this time the
British colonies had a functioning and intermeshed executive and judiciary and cases were going
on appeal to Privy Council.
Nandini Chatterjee, Religious Diagnosis: Skinner v. Orde and a Curious Problem of Legal
Governance in British Empire, 2 (May 22, 2011) (Working Paper Series) (on file with author).
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colonized and their interaction with the law and its processes.9 Some of these
interesting works challenge our limited archival records; for instance, judgments
are not readily accepted as verifiable knowledge on face value.10 There is increasing
literature to suggest that many were in fact modified projections that suited the
British politics of that time and place.11 Rummaging through these and other
records gives us an insight into the judicial discourse in the courts of colonial
India.
We soon discover that such discourse often led to rigid and dogmatic
categorization of otherwise more fluid concepts of caste, class, religion, cultural
and gender identities that were socially visible.12 These decisions then served as
judicial precedents for future cases in the same jurisdiction on the basis of the
stare decisis principle characteristic of the common law system.13 In this process,
several colonial legal misconceptions, for instance criminalization of
9
10
11
12
13
For an example of a subject network that studies the history of the Judicial Committee of the
Privy Council, see Nandini Chatterjee, Subjects of Law: Rightful Selves and the Legal Process in
Imperial Britain and the British Empire http://translatingcultures.org.uk/awards/researchnetworking-awards/subjects-of-law-rightful-selves-and-the-legal-process-in-imperial-britain-andthe-british-empire/ (last accessed May 5, 2015).
There was a notion of fairness which was somewhat prevalent in colonial times perhaps due to
lack of affiliation of English judges with village communities and, therefore, assumption of nonbias on caste and class factors. The agendas with which British executive/judicial officers worked
with, however, have to be seen. Take the obvious instances such as when lawyers who participated
in the freedom struggle were punished and had their names removed from the bar roll. The cases
of detenues appeals during World War II were dealt with by British judges in a secret
manner and records relating to appeals under the Public Safety Act are yet to be explored by
historians. Justice K. Chandru, The High Court of Judicature at Madras at 150, THE HINDU,
August 15, 2011.
Well illustrated in PREM CHOWDHRY, Fluctuating Fortunes of Wives: Creeping Rigidity in InterCaste Marriages in the Colonial Period, in GENDERING COLONIAL INDIA: REFORMS, PRINT, CASTE
AND COMMUNALISM 2 (Charu Gupta ed., 2012).
For example: One such key process for colonial India was the creation, or at least formalization, of
extra-local, horizontally conceived, and homogeneously imagined religious
communitiesHowever, in spite of their impoverished view of reality, colonial categorization
projects did not fail, not only because of their endorsement by overwhelming state power, but
also because they were actively embraced as indisputable representations of truth by people.
Nandini Chatterjee, Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial
Court, 117 AMERICAN HISTORICAL REVIEW 1101, 1104-05 (2012).
For the historical origins of the stare decisis principle in common law and its criticism, see
commentary provided in THE AMERICAN LAW REGISTER, 746-756 (1st. edn., 1886), also available
at http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article= 4147&context=penn_ law_review.
127
homosexuality14 or non-recognition of marital rape15 became deeply entrenched

in the judicial mindset in this way. Justice A.P. Shah, in NAZ Foundation v.
Government of NCT of Delhi16 traces how legal tests for attracting penal provisions
under Section 377 of the Indian Penal Code (which criminalizes homosexuality)
have changed from the non-procreative to imitative to sexual perversityover
time. The religious and ethical standards introduced by Macaulays Indian Penal
Code, whether on homosexuality or marital rape which were exempted in the
draft clause by simple sexual intercourse by a man with his wife is in no case
rape,17 have been further entrenched in the system through policies, cases and
practices18 which do not allow for difference and dissent from the normative.
Today, it is indeed necessary to deconstruct case laws and unearth social history
to overturn such misconstrued legal positions. The new narratives by scholars
therefore seek to give voice to the subaltern litigants of colonial India.
DECONSTRUCTING LEGAL HISTORY
Today, scholars look beyond merely what was palatable to the Courts, and further
into the intriguing references in plaints, witnesses statements, court deeds and
other surviving legal and non-legal evidence.19 The first reference stop is naturally
the record of proceedings submitted to the court by litigants legal counsels, which
14
15
16
17
18
19
See ALOK GUPTA & SCOTT LONG, THIS ALIEN LEGACY: THE ORIGINS OF SODOMYLAWS IN BRITISH
COLONIALISM (2008) http://www.hrw.org/sites/default/files/reports/lgbt1208_web.pdf, and
Jeremy Seabrook, Its Not Natural: The Developing Worlds Homophobia is a Legacy of Colonial
Rule, THE GUARDIAN, July 3, 2004.
See MRINALINI SINHA, COLONIAL MASCULINITY: THE MANLY ENGLISHMAN AND THE EFFEMINATE
BENGALI IN LATE NINETEENTH CENTURY, 163-165 (1st edn., 1995), Varsha Chitnis & Danaya
Wright, The Legacy of Colonialism: Law and Womens Rights in India, 64 WASHINGTON & LEE
LAW REVIEW 1315 (2007), Kalpana Kannabiran, Sexual Assault and the Law, in CHALLENGING
THE RULE(S) OF LAW 80, 81 (Kalpana Kannabiran and Ranbir Singh eds., 2008).
NAZ Foundation v. Government of NCT of Delhi, 2009 (160) DLT 277, para 4.
Act No. 45 of 1860.
The Eunuchs Act, for example, was implemented in various jurisdictions at the turn of 20th
century to control the eunuchs through police crackdowns. Such laws cause more damage on
the ground, forcing communities to go underground and be denied basic right to life, liberty,
dignity and privacy.
In India, due to poor archival conditions, much reliance is placed on the description of case
scenarios given by deciding judges in written judgments reported in law journals, starting from
the 1st Indian law journal the Madras High Court Reporter (1861), and newspaper reporting
preserved by newspaper archival sections available in libraries and museums. See Justice Kannan,
Of Law Reports, Authors and Legislations, JUSTICE KANNAN, BEING NON-JUDGMENTAL (March 17,
2008), http://mnkkannan.blogspot.in/2008/03/of-law-reports-authors-and-legislations.html- for
a brief history of legal reporting in India.
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contain all depositions, exhibits and other legal evidence. For this purpose, the
archive of the Judicial Committee of the Privy Council in London has full
proceedings up to the final appeals starting from the appeal in the case of Manuel
De Lima (Madras, 1679).20
However, Privy Council appeals account for only a fraction of the litigation cases
fought in the subcontinent during the colonial period. An appeal to Privy Council
was neither easy nor cheap; hence it was not a viable option for most Indians.
Most of the records lie in the then lower courts of Indian subcontinent, accessing
which is a deceptively simple task, given the deplorable condition of our court
depositories and the resultant logistical difficulties explained below.
Let us take the case of the Calcutta and Bombay High Courts which were
designated Supreme Courts in 1774 and 1823 respectively till 186121, and then
functioned as the highest courts till the creation of a Federal Court via the
Government of India Act of 1935. The Calcutta High Court has a Research and
Preservation Centre in its Centenary building since 1977, which can be accurately
described as a dingy room with broken window panes, serving as an open invitation
for pigeon guano over rotting papers piled up in cramped stacks. This privilege is
reserved only for case files and judicial records that were admitted during the
period when the Calcutta High Court was the Supreme Court (1774-1861); for
the time period between 1862- 1950 however, many appellate case records are
simply untraceable.22 The Bombay High Court on the other hand chooses to
dump record proceedings of the colonial era in the backrooms of the Small Causes
Court situated at Lokmanya Tilak Road in South Bombay (now Mumbai). Though
this repositoryclaims to have electronically operated racks systems, some of these
have not been fully repaired since they last went out of order, making any research
impossible.23 Similar is the case with the Madras High Court which Justice K.
Chandru described as:
This High Court started functioning from 1862 and we do not have
a proper index as to the availability of records from that date. Rumours
go around to the effect that even the original charter establishing the
20
21
22
23
For Privy Council Appeals Data, see Mitch Frass, Privy Council Appeals Data: The First Fifty
Appeals from East India Company to the Privy Council 1679-1774, available at http://
angloindianlaw.blogspot.co.uk/p/privy-council-cases-from-india-before.html#data.
The Indian High Courts Act, 1861 merged these Supreme Courts along with Sadar Adalats and
the three High Courts at Bombay, Calcutta and Madras were established.
Authors notes from the field, p.4 (September 18- September 27, 2013).
Authors notes from the field, p.2 (June 5- June 14, 2013).
129
court itself is not traceable. Manually kept records have become motheaten and the papers have become brittle. Further the typed documents
are slowly fading away and worse is the computerized printing. We
have no qualified persons to look after the records. Even while
destroying the records which are of 10 years old, what is preserved is
only the original petition and the judgment copy, the other papers
annexed to the cases are removed and destroyed.24
Thus most lamentably, since our courts have been following an indiscriminate
policy of destroying a large part of the proceedings, there is little chance of finding
complete case records unless someone has kept a private copy. If such is the current
state of the High Courts, supposedly courts of record, one can only imagine the
pitiable position of district level archives.25
Then there are rare private archives maintained by private individuals and
institutions, chancing upon which can be a true blue-moon events for scholars.
There is of course no accreditation system in place for effective service and
sustainability of such private records.26 To conclude, overall decades of neglect,
underfunding and bad preservation techniques have wrought considerable damage
to these records.27Any excitement at having chanced upon a rare document subsides
soon after when the paper crumbles in your hands.
24
25
26
27
Private interview pg.4, on file with author.

The ultimate responsibility of original and appellate cases is consigned to their respective Registrars
or tossed to the Right to Information Cell, in case a query is made. In day-to-day functioning
however, it is simply relegated to junior officers of various administrative departments and clerk
staff without effective directions. In each of the high courts, a senior judge is responsible for
administrative works, of which record preservation is one of the tasks. However, the judges
were found to be acutely unaware of the present situation, let alone pro-actively engaging and
directing staff on the issue.
See Archive Service Accreditation established in United Kingdom for independent evaluation of
private and public sector archives.
Dinyar Patel, Repairing the Damage at Indias National Archives & Indias Archives: How Did
Things Get This Bad, NEW YORK TIMES, March 21, 2012. A similar situation exists in the archives
including the National and State Archives and Central Secretariat Library (previously known as
Imperial Secretariat Library) which house legislative histories- original laws passed by Governors,
draft bills, comments and official notes, reports of commissions and committees, surveys and
reports, etc. These archives housed in imperial buildings are extremely underfunded but overstaffed,
though very few officers actually understand the legal and historical significance of the documents
they are employed to take care of. However, there have been some good intentioned initiatives
by scholars like Mushirul Hasan, Director General of National Archives.
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OUR COMMON FUTURE

To comprehend the present and move towards the future requires an
understanding of the past: an understanding that is sensitive, analytical and
open to critical enquiry.- Romila Thapar, noted Historian28
The fact that the colonial British government meticulously recorded and preserved
vast and valuable legal documents should have made research in court repositories
easier for scholars. However, due to the present brittle conditions of the case
documents, apart from the apathetic and bureaucratic attitude of most officials,
legal scholars are dissuaded from conducting research in India. Even present court
records are treated in a similar fashion. As of now, only few high courts have
made serious efforts in the last two years to digitize recent case records.29 The
courts still do not allow for transcripts and voice recordings of oral proceedings,
citing policy issues.30
The root cause of the problem is that legal history is simply undervalued in the
general legal and administrative circles. Very little funding trickles down to the
archives department because of general lack of understanding or appreciation for
these vital documents. There is then a great reluctance to show records to outsiders
including researchers. It seems the Indian universities too (including law schools)
are neither active in the preservation of archives nor do they extensively use these
archives for their own research.
28
29
30
Romila Thapar, In Defence of History, Seminar 2003, (from lecture delivered at Thiruvananthapuram
on March 2, 2002) http://www.india-seminar.com/2003/521/521%20romila%20thapar.htm.
As part of establishing six model (high) courts in India (A Law Ministry initiative under the
Twelfth Plan), at least Delhi and Bombay High Courts have started digitization drive for the
present cases, starting last year. It is to be kept in mind that while colonial judgments were
written in ink or pencil, the printed typeset used in modern era have shorter life. High Courts
are courts of record under Article 215 of the Constitution, yet there is no strict compliance to
preservation rules (ironically called rules for destruction of records) which mention preservation
of significant case laws avoiding tears (Private interview with Justice K. Chandru, p.3, on file
with author).
Various Supreme Courts in USA, Australia, UK and Canada provide live feed or audio recording.
See DANIEL STEPNIAK, AUDIO-VISUAL COVERAGE OF THE COURTS: A COMPARATIVE ANALYSIS, (1st
edn., 2012). In India, in Deepak Khosala v. Union of India, 182 (2011) DLT 208, the Delhi High
Court cited lack of legislative policy to deny recording of oral proceedings. Two subsequent PILs
in the Supreme Court for recording proceedings have been rejected despite a similar
recommendation by the Advisory Council of the National Committee for Justice Delivery and
Legal Reforms in February 2014. However, on July 15, 2015 the Calcutta High Court allowed
audio-video recording of a court room proceeding for assistance of the judges.
131
There is a growing interest in digital preservation of historical legal documents in

jurisdictions such as the United Kingdom and the United States of America.31 In
India, at the forefront of digitization initiatives is the Delhi High Court which
provides digital copies of disposed of cases, appellate or writ, without exception,
in its inspection and copy branch. The full legal proceedings, except official notes
for cases disposed of since the inception of the court in 1966 till 1997 can be
accessed and printed by researchers and litigants alike. To make this possible the
digitization process is often outsourced to private corporations32 and buttressed
with a support staff of around 20-25 members. Mr. Girish Sharma, Registrar,
who has been involved with the digitization process since its beginning in 2006
informs us that the initiative is a result of the efforts of the Delhi High Courts
Computer Committee, which was then under the Chairmanship of Justice Madan
Lokur. Having so far digitalized around 7 terabytes of data (7-9 crore page files),
the Committees ultimate aim is to succeed in complete digital functioning of the
courtrooms. Though, the digitization drive was initiated for the purpose of
facilitating those connected with the legal process i.e. judges, lawyers and litigants;
the Court accommodates independent researchers with their requests for access.
The High Court however does not co-ordinate with other archives or high courts
for archiving and exhibition purposes.
Similar efforts for digitization of colonial records in India and international
collaborations would be especially beneficial for Indian researchers and students
who cannot easily travel to London or to other repositories in UK and USA.
Therefore, at this juncture, a collaborated effort by the Supreme Court, High Courts
and the universities to digitize case records of the colonial era is a requisite. Converting
the information into a digital format, and ensuring multiple record copies with
easy access to them would be a step towards enhancing a better understanding of
our developing legal system. It would do us well to not be stuck as the man for
whom history is bunk and who, as per the outspoken Texan folklorist James F.
Dobie, is invariably as obtuse to the future as he is blind to the past.
31
32
See cataloguing of 9,368 cases decided between 1792-1998 by Appeals to the Judicial Committee
of the Privy Council at http://privycouncilpapers.exeter.ac.uk as a pioneering effort in this area.
Also see the AHRC research network project referred to in Nandini Chatterjee, supra note 9
and Centre for Imperial and Global History, University of Exeter, http://
humanities.exeter.ac.uk/history/research/centres/imperialandglobal/research/subjectsoflaw/
At present, Ricoh India Limited has been given the responsibility to digitalize cases from 1977
onwards. There are currently 11 e-court rooms at the Delhi High Court premises. With the
ultimate aim to convert all courtrooms to e-courts, the digitization section also strives to provide
digital copies of new cause lists and pending cases, to the extent possible.
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BOOK REVIEW
CRITICAL INTERNATIONAL LAW: POSTREALISM,
POSTCOLONIALISM AND TRANSNATIONALISM1
(Prabhakar Singh & Benot Mayer eds., 2014)
Ashwita Ambast*
The lack of concerted methodological critique is a significant failing of international
law scholarship. Critical international lawyers (the Crits) aim to question and
destabilize the inaccurate assumptions behind international law, which have slowly
become deeply entrenched as truths.2 The Crits believe in the absence of a central
international legal order as an impartial point to which state actors can refer and
in a mature anarchy in international relations (and) the recognition of states as
independent centres of legal culture and significance3
In Critical International Law, Prabhakar Singh and Benot Mayer bring together
different scholars of this post modern tradition who carefully re-envision
international law as it stands today. The scholars address three areas that have
been systematically neglected in mainstream international law discourse and
writing, and thus remain unexplored; post-realism, post-colonialism, and
transnationalism.
This review will begin with an overview of the articles in the Critical International
Law. Subsequently, this review will raise three points of analysis: internal
differences in opinions in the book, the role of international law scholars, and the
scope of the premise of the book.
1
*
2
CRITICAL INTERNATIONAL LAW: POSTREALISM, POSTCOLONIALISM AND TRANSNATIONALISM

(Prabhakar Singh & Benot Mayer eds., 2014) [hereinafter CRITICAL INTERNATIONAL LAW].
Ashwita Ambast is a Graduate of National Law School of India University, Bangalore and Yale
Law School.
For an interesting overview and explanation of what is critical about critical international law,
the Afterword to the book is a valuable read: Sbastien Jodoin and Katharine Lofts, Whats
Critical about Critical International Law?, in CRITICAL INTERNATIONAL LAW, supra note 1, at
326.
Anthony Carty, Critical International Law: Recent Trends in the Theory of International Law,
EUROPEAN JOURNAL OF INTERNATIONAL LAW, http://www.ejil.org/pdfs/2/1/2026.pdf.
133
Critical International Law: Post-realism, Post-colonialism And Transnationalism.
POST-REALISM
Post-realism explores the relationship between international law and international
politics.4 The contributions recognise that the international legal order is no longer
state-centric; rather, international law is a process of authoritative decision making
that need not necessarily stem from the state, and that must, hence, accounts for
rules, policies as well as individual state context.5 Thus, Rossana Deplano criticises
the welfarist approach,6 which argues that states are the primary actors of
international law and bear the responsibility to enter global, welfare maximizing
agreements with other states on behalf of their population.7
However, despite states taking a backseat, the international order remains governed
by prevailing power relations in interesting, new ways. John Morss argues that
international law has failed to properly address time and power.8 For instance, at
its inception, Israel did not strictly conform to the Montevideo requirements of
statehood but in an interesting interplay of power and time, overwhelming
recognition from other states (supplemented by military, economic and political
support) became self fulfilling.9 Similarly, it is argued that the recognition received
by Kosovo from other nations after its unilateral declaration of independence
gave the Kosovar state otherwise absent legitimacy in the eyes of international
law.10 Further, lopsided power relations even impact secondary sources of
international law. The powers of modern international tribunals extend far beyond
the mere settlement of disputes.11 However, not all states readily internalise
international law, given that the decisions of international courts and tribunals
are self referential, often not pro-public, and tend to discriminate between states
4
5
6
7
8
9
10
11
Prabhakar Singh & Benot Mayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 1, 5.
Rossana Deplano, The Welfarist Approach to International Law, in CRITICAL INTERNATIONAL
LAW, supra note 1, at 74, 87.
This approach is championed by Eric Posner: Eric Posner, International Law: A Welfarist
Approach , 73 U. CHIC. L. REV. 487 (2006).
Rossana Deplano, CRITICAL INTERNATIONAL LAW, supra note 1, at 75-77.
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53-55.
Morss says that historical change is articulated by international law in paradoxical ways.
Id.
Daniel Fierstein, Kosovos Declaration of Independence: An Incident Analysis of Legality, Policy
and Future Implications, 26 B.U. INTL L.J., 417 (2009).
Prabhakar Singh, Revisiting the Role of International Courts and Tribunals, in C RITICAL
INTERNATIONAL LAW, supra note 1, at 98, 100.
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based on region.12 Even the work of highly influential publicists is mired in

competition for persuasiveness, with Western nations retaining stronghold over
the manufacturing of international law.13
The resonating lesson of the first segment is to re-imagine the international order
while taking into account power relations. The New Haven Schools policy
oriented approach to international law14 is one such approach that views
international law as being rule by diplomacy. Although it is believed that the
New Haven School tends to fetishize the role of realpolitik, it is true that the
analysis of power within international law, from an international law perspective
rather than the perspective of another discipline, be it ethics, political science, or
international relations is overdue.15
POST-COLONIALISM
In the Postcolonialism segment, it is argued that international law is complicit in
concealing and legitimizing imperialism.16 The creation of equal states is at the
heart of international law; yet, non-European colonized states were not considered
equal at all.17 These states were denied sovereignty by Western powers and on
gaining political independence, remain marginalized. The failure of the New
International Economic Order,18 and the coercive influence of Western dominated
international institutions like the International Monetary Fund are signs of neoeconomic imperialism. Anghie calls for an alternate analytic framework, a dynamic
of difference, directed at studying how international law relates to colonialism,19
12
13
14
15
16
17
18
19
INTERNATIONAL LAW, supra note 1, at 113-114, 117. Singh takes the example of international
investment law decisions that are overwhelmingly pro-private and discriminatory.
Singh, supra note 15, at 118.
For more details on the collaboration between Profs. Lasswell and McDougal, see, O. Hathaway,
The Continuing Influence of the New Haven School, FACULTY SCHOLARSHIP SERIES, PAPER 834,
(2007), http://digitalcommons.law.yale.edu/fss_papers/834.
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 65.
Antony Anghie, Towards a Postcolonial International Law, in CRITICAL INTERNATIONAL LAW,
By which developing countries sought to assert control over their natural resources.
135
and which approaches international law as a problem of order between different

cultures.20
Human rights historiography is symptomatic of Anghies observations. The
existing human rights historiography is Eurocentric,21 fallaciously placing the crisis
of modernity at the Holocaust22 when the crisis of modernity in reality began at
its birth. Rationalism, modernism and the accumulation of wealth have consistently
bred a dark side of slavery, genocide and dispossession.23 Evidence of the crisis of
modernity that do not find a place in modern historiography include the conquest
of America,24 the genocides in Cambodia, Rwanda and Bosnia that challenge the
consequence of the UDHR and the wide exploitation and violence perpetrated in
colonies.25 To attain universal appeal, human rights need to be located in a wider
historical and geopolitical context, and be recontexualised to include five centuries
of colonial genocide.26 Upendra Baxi27 has proposed an alternative historiography:
Human rights are not a gift from the West. Baxi proposes a history from below
where the original authors of history are people in struggles.28 Baxi thus aims to
close the yawning gap between theory and activism.29 Toufayan believes that
20
21
22
23
24
25
26
27
28
29

Jos-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW, supra
note 1, at 143.
note 1, at 143, 147.
note 1, at 143, 156, 163.
note 1, at 143, 154. Barreto substantiated this with Marxs example of the primitive accumulation
of capital. Jos-Manuel Barreto, A Universal History of Infamy, in CRITICAL INTERNATIONAL LAW,
supra note 1, at 143,163.
note 1, at 143, 149-151.
note 1, at 143, 166.
Mark Toufayan, Suffering the Paradox of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 167, 175.
at 167, 174.
at 167, 169-170.
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Baxis work falls short methodologically, specifically in explaining how to make

human suffering legible in discussions about international human rights.30
The lopsided narrative has limited access to human rights to a select few by the
installation of personal and geographical limitations.31 Big states have disclaimed
responsibility for external actions by using strategies such as offshoring human
rights violations, as in the case of Guantanamo Bay,32 using the lack of citizenship
to limit the rights available to victims as in Hamdi,33 and by exploiting the need
for establishing effective control as required by Bankovic.34 To be sure, the Magic
Circle of rights is expanding. The enforceability of international human rights
law against a state has moved from being predicated on nationality and allegiance
or territory and jurisdiction, to the more modern power and authority test.35
Milanovic has proposed a more extensive test, whereby states are required to
ensure negative rights to all individuals and positive rights to those within their
effective control.36 However, Mayer makes the case for the absence of any
conditionalities on the applicability of human rights.37
30
31
32
33
34
35
36
37
at 167, 183. Not only is Baxi equivocal about the politics of the historians use of past human
suffering for the future of human rights, he is also unable to justify whether the grassroots voice
is relevant to human rights decisionmaking. Moreover, left unaddressed are the methodological
dangers of a history from below which can include issues of agency, representation and the
creeping in of unwarranted assumptions and omissions. Mark Toufayan, Suffering the Paradox
of Rights?, in CRITICAL INTERNATIONAL LAW, supra note 1, at 167, 184.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note
1, at 198, 199.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note 1,
at 198, 206.
Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004); Benot Mayer, The Magic Circle of Rights Holders,
in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 203.
Bankovic v. Belgium 2001-XII Eur. Ct. H.R. 890; Benot Mayer, The Magic Circle of Rights
Holders, in CRITICAL INTERNATIONAL LAW, supra note 1, at 198, 210.
Benot Mayer, The Magic Circle of Rights Holders, in CRITICAL INTERNATIONAL LAW, supra note
1, at 198, 202, 207: The power and authority test includes cases where a state has de facto and de
jure control over an event.
at 198, 215.
at 198, 216.
137
TRANSNATIONAL LAW
Judge Philip Jessup characterised transnational law being as all law which regulates
actions or events that transcend national frontiers[including] [b]oth public and
private international law[plus] other rules which do not wholly fit into standard
categories.38
The growth of a self-sufficient system of adjudication of international investment
law is a product of transnationalism. Uruena explains that although arbitral awards
do not bind later tribunals, precedent is widely used in international investment
law.39 To explain the legitimacy of this system, Uruena likens it to a model of
global governance where collective expertise is introduced to remedy the failure
of municipal laws to protect the interests of investors.40 Prior investment awards
are the only reliable source of remedying this failing.41 Thus, the legitimacy of the
system derives not from state sovereignty, but from principles of global governance.
Similarly, while conventionally, human rights obligations derive from state consent,
a transnational framework also allows for the creation of new entitlements by
placing reliance on novel sources. The human right to water does not constitute a
positive international law, as custom is silent and conventions only call for
progressive realization.42 Owen McIntyre states that the rights and obligations of
actors such as individuals, corporations, vulnerable communities, investors, and
state agencies can be garnered from transnational regulations using the Global
Administrative Law framework, akin to administrative law questions.43 Closer
study reveals that the principles relating to universal access to water as articulated
38
39
40
41
42
43
Harold Koh, Why Transnational Law Matters, 24 PENN STATE INTL L. REV. 745 (2006). To
borrow Prof. Harold Kohs definition: [t]ransnational law represents a hybrid of domestic and
international law that has assumed increasing significance in our lives.
Rene Uruena, Of Precedents and Ideology, in CRITICAL INTERNATIONAL LAW, supra note 1, at 276,
280.
293-301.
301.
Owen McIntyre, The Human Right to Water as a Creature of Global Administrative Law, in
CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 259.
Owen McIntyre, The Human Right to Water as a Creature of Global Administrative, in
138
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by a variety of non-state actors and institutions reflect accountability, participation,

predictability, and transparency.44
Other non-conventional governance institutions are constantly posing challenges
to international law.45 How should modern international law be visualised? Should
a plural approach that appreciates non-state actors functioning as norm setting
agencies be taken, or should a state-centric constitutional approach be adopted?
As of now, there are no clear answers. The European Court of Human Rights in
Behrami46 took a constitutional approach by upholding the member states
obligations under the United Nations resolution over European Union
obligations. On the other hand, in Kadi,47 a plural approach was taken, as the
European Court of Justice by providing judicial review over a Security Council
Resolution. Singh and Kubler conclude that both constitutionalism as well as
pluralism are necessary to maintain the delicate transnational fabric: the former
to ensure the legitimacy of the international legal order in the face of
fragmentation and the latter to curtail the hegemonic intent that international
laws makersmight have.48
The tussle between the power of the state and that of new fangled international
institutions is also apparent in the development of the international man. An
international civil service comprising of individuals who owed allegiance only the
international order was first visualised when the League of Nations was established.49
However, the international man failed to materialise. Not only was the field far
from representative (positions were overwhelmingly filled by elite Anglo-Saxon
men)50, the vision of cultivating the fine balance between a strong international
44
45
46
47
48
49
50
Owen McIntyre, The Human Right to Water as a Creature of Global Administrative, in

CRITICAL INTERNATIONAL LAW, supra note 1, at 249, 257, 275.
Prabhakar Singh and Benot Mayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note
1, at 1, 5.
Behrami and Behrami v. France and Saramati v. France, Germany and Norway Joined App
Nos. 71412/01 & 78166/01.
CFI Kadi Case T-315/01.
Prabhakar Singh and Sonja Kubler, Constitutionalism and Pluralism, in CRITICAL INTERNATIONAL
LAW, supra note 1, at 304, 304.
Frdric Megret, The Rise and Fall of International Man, in CRITICAL INTERNATIONAL LAW, supra
note 1, at 223
note 1, at 223, 233.
139
orientation with national foundations (a rooted rootlessness51) was hard to achieve.
SOME POINTS OF ANALYSIS

The contributions in Critical International Law are divided on a number of
subjects. Non-state actors are treated by McIntyre as being legitimate members of
global governance mechanisms with the capacity to create administrative norms.
Uruena paints a vivid picture of international investment arbitrations as being
legitimate, self referential systems created by non-state, ad hoc arbitral tribunals.
Singh, on the other hand, is more sceptical about self referring international courts
and tribunals and even authoritative publicists becoming agents of legitimacy as
he believes that there may not be enough political will among statesto
transnationalize.52 On occasion, these might even turn into opportunities for the
unwarranted exercise of private power,53 or for errant behaviour such as the
invention of international law particularly by dominant Western sovereigns.54
Thus, while one group of scholars sees legal pluralism and the growth of nonstate actors as a reality with benefits, others believe that when power imbalances
permeate to these non-state actors, there is cause for concern. Constitutionalism,
too, is a contested notion. The overwhelming approach of the authors is to question
the established system of international norms. Anghies postcolonial critique strikes
at the core of the system of international law itself, attacking its biased constitution.
However, Singh and Kublers contribution looks at the benefits of
constitutionalism as maintaining framework for the international legal order. By
and large, all contributions see value in the existence of an international legal
order. This emerges as a central challenge: reshaping the foundation of international
law while retaining its functionality.
51
52
53
54
note 1, at 223, 232.
140
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Socio-Legal Review
2015
Interestingly, Critical International Law indicates a dynamic role for scholars as

bearing the ultimate burden of reforming the international order. Saberi
acknowledges the professional image of the international law as being a distinctive
contribution of the New Haven School.55 The international scholar is envisaged
as an activist lawyer at the service of human dignity56 who participates in different
phases of the legal process57 and influences perspectives by communicating
ideologies.58 Similarly, in an attempt to break Western hegemony in the realm of
highly acclaimed publications as a source of international law, Singh calls for all
nations to invest in their international law intelligentsia who may then create
scholarship from their national perspective that can influence the direction taken
by international law.59 Toufayans piece describes the historiographical turn that
encompasses a growing need on the part of international lawyers to review (even
to confirm) the history of international law and to establish links with the past
and present.60 Thus, critical international law is raising the bar for international
law scholars by introducing new ethical dimensions to scholarly research. In
assessing whether international scholars are capable of performing this role, Saberi
cautions against the dangers of unconditional faith in a class of persons,61 and
alerts readers to the fact that questions of what kind of political behaviour can be
considered acceptable are subject to much political and historical debate that
international scholars may be unable to agree upon or to resolve.62 Perhaps the
potential of scholarship from different parts of the world to influence and correct
the prevailing vision of international law is for time to tell.
55
56
57
58
59
60
Hengameh Saberi, Descendents of Realism, in CRITICAL INTERNATIONAL LAW, supra note 1, at

29, 52.
Hengameh Saberi, Descendents of Realism, in CRITICAL INTERNATIONAL LAW, supra note 1, at 29,
31.
Hengameh Saberi, Descendents of Realism, in CRITICAL INTERNATIONAL LAW, supra note 1, at 29,
42 including: intelligence, recommendation, prescription, invocation, application, termination,
and appraisal.
Hengameh Saberi, Descendents of Realism in CRITICAL INTERNATIONAL LAW, supra note 1, at 29,
43.
at 167, 170.
141
A prime criticism levied against the Crits has been that their critique is chiefly
deconstructive.63 Critical International Law aims to reflect the many ways in
which critical scholars think about international law.64 Is the premise of this
book too limited and should the book address the implementation of the paradigms
proposed by the Crits as well? While Anghie makes a strong point regarding the
manner in which imperialism has shaped and continues to shape international
law,65 he is silent on how this realisation can be utilized to impact current
international lawmaking. Can raising caution regarding the colonial overtones of
international law alter and inform international negotiations, decision-making or
the drafting of treaties? Can revealing the imperial proclivities of jurists66 adversely
affect the authority of their word on international law? What is the consequence
of Western powers acknowledging the historically lopsided nature of international
law and what amends can they make? On similar lines, while Barretos call for a
recontexualization of human rights is pressing and convincing, it is not
supplemented by the parameters of the recontextualization. Accounting for the
vast experience of colonialism is no small task, and is fraught with complex
methodological concerns. Further thought on who is responsible for
recontexualizing the history of international law, and how, would be welcome.
The Afterword also notes that the Crits have been accused of remain[ing] at
arms length from the more practical concerns of their discipline.67 While Morss
has a convincing critique of the paradoxical ways in which power is understood
61
62
63
64
65
66
67

29, 46.
29, 48.
The Afterword to Critical International Law notes that [o]f particular concern is the failure of
many critical international scholars to effectively, explicitly reflect on what comes after their
structural critiques. SbastienJodoin and Katharine Lofts, Whats Critical about Critical
International Law, in CRITICAL INTERNATIONAL LAW, supra note 1, at 326, 334.
Prabhakar Singh and BenotMayer, Introduction, in CRITICAL INTERNATIONAL LAW, supra note
1, at 1, 5.
Antony Anghie, Towards a Postcolonial International Law in CRITICAL INTERNATIONAL LAW,
Sbastien Jodoin and Katharine Lofts, Whats Critical about Critical International Law, in
142
Vol. 11(1)
Socio-Legal Review
2015
in international law, the solution proposed is to take apart statehood and selfdetermination and create a new account that will make legal sense of legitimacy.68
The effectuation of this solution is obscure. Can the genesis of states that were
contested at their inception be questioned today on theoretical grounds? If so,
what are the consequences of a historical case of self-determination being illegitimate
under the new paradigm of analysis?
As it stands, united by the loose common thread of thinking critically, and
approaching international law from three powerful vantage points, the novelty
and richness of perspectives presented in the compilation make Critical
International Law a compelling read.
68
John R. Morss, The Riddle of the Sands, in CRITICAL INTERNATIONAL LAW, supra note 1, at 53, 72.
143
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judicial treatment of minorities in cases involving the interpretation and application

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NOTES FROM THE FIELD

WIZARDS AT MAKING A VIRTUE OF NECESSITY:

Wizards at Making a Virtue of Necessity: Street Vendors in India

Canto 5 of R. Parthasarathys lovely translation mentions hawkers of paints, scented powders,

(Foucault 1966; Deleuze 1986; Bhabha 1994), gaps (Lefebvre 1974),

Luc Levesque, Trajectories of Interstitial Landscapeness: A Conceptual Framework for Territorial

Wizards at Making a Virtue of Necessity: Street Vendors in India

EDINBURGH CITY COUNCIL RECOGNISES OCCUPY EDINBURGH, EDINBURGH GUIDE,

Wizards at Making a Virtue of Necessity: Street Vendors in India

tradition, the path-breaking work on urbanism and spatial justice initiated by

superstructure. In studying such transformations it is always necessary to distinguish between the

Wizards at Making a Virtue of Necessity: Street Vendors in India

LEFEBVRE, supra note 5, at 419-423.

CITIES, supra note 9, at 76.

consumption. With suburbanization a process is set into motion

LEFEBVRE, Industrialization and Urbanization, in WRITINGS ON CITIES, supra note 9, at 77.

Wizards at Making a Virtue of Necessity: Street Vendors in India

and income as well as to the increase in urban impoverishment, Harvey concludes

Id., at 12, 16.

Wizards at Making a Virtue of Necessity: Street Vendors in India

management transform the waters of dream into a scarce commodity

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

Curt Gambetta & Ritajyoti Bandyopadhyay, The Problem, in STREETSCAPES: A SYMPOSIUM ON

approach, frames Indian streetscapes in terms of their unique rhythms

Wizards at Making a Virtue of Necessity: Street Vendors in India

trade, and the right to dignity.67

Wizards at Making a Virtue of Necessity: Street Vendors in India

Robert C. Ellickson, Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

MASSEY, FOR SPACE, supra note 66, at 105.

Wizards at Making a Virtue of Necessity: Street Vendors in India

In contrast to historical studies, street vending in contemporary contexts has been

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

legitimate participants in urban policy processes (Brown et al. 2010;

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

115 See Roever, supra note 98, at 59-61.

Wizards at Making a Virtue of Necessity: Street Vendors in India

Wizards at Making a Virtue of Necessity: Street Vendors in India

several cities (Bengaluru, Delhi, Hyderabad, Jaipur, Lucknow, and Patna) a

Wizards at Making a Virtue of Necessity: Street Vendors in India