LAW AND UNMET SOCIAL NEEDS

Upendra Baxi*

How does, and how should, social theory conceive of the basic
human needs (“BHN”) of the worst-off in society? How should
these conceptions be translated into the language of
constitutional law? The paper will investigate the analytical
concerns of BHN and address six key concerns. First, how should
social theory define 'needs'? Second, how should state officials
identify, map, and respond to these needs? Third, how may
transnational intergovernmental networks impinge on national
spheres of public policy in regarding to meeting BHN? Fourth,
on what basis may public power be distributed for meeting BHN?
Fifth, should the appellate judiciary concern itself with the tasks
of protection of rights rather than extend its powers to
identification and meeting BHN? Sixth, when BHN remain unmet
for long stretches of time, could violent social action represent
itself as a long term agency for rectification of public indifference
towards meeting unmet BHN?

I. THINKING THROUGH THE NOTION OF UNMET SOCIAL NEEDS

WITH MOHANDAS ................................................................................... 2
II. SOME BASIC ANALYTIC CONCERNS ...................................................... 4
III. THE CONCEPTION OF NEEDS ................................................................ 5
IV. MAPPING AND MEETING SOCIAL NEEDS .............................................. 8
V. JURISDICTIONAL SPHERES FOR MEETING SOCIAL NEEDS................... 10
VI. THE INFLUENCE AND POWER OF TRANSNATIONAL
INTERGOVERNMENTAL NETWORKS....................................................... 11
VII. ROLE OF THE INDIAN JUDICIARY IN MEETING BHN........................... 11
VIII.VIOLENCE AS A WAY TOWARDS ARTICULATING
FUNDAMENTAL HUMAN RIGHTS ............................................................12

* Emeritus Professor of Law, University of Warwick; Distinguished Professor, National Law

University, Delhi; Former Vice Chancellor, University of Delhi (1990-1994) and South
Gujarat (1982-1985); Visiting Professor, Global Law Program, New York University (1966-
1999). This article is a modified version of the speech delivered at the 10th Annual Bodh Raj
Sawhney Memorial Oration, at National Law University, Delhi on February 20, 2010.
2 Journal of National Law University, Delhi [Vol. 1

I. THINKING THROUGH THE NOTION OF UNMET SOCIAL

NEEDS WITH MOHANDAS

Let me start with an anecdote. Studying a long time ago in Dharmendra

Singhji College at Rajkot, we all had to read a textbook on something called
'economics' - I think by two authors named Jathar and Beri - which began
with the proposition that this so called 'dismal science' was still necessary
and desirable because whereas resources were limited (finite) human wants
were infinite (unlimited).1 Their paradigmatic example concerned middle-
class young parents who had to choose between having a baby or having a
car! In the vast joint family that I was born to and lived with for first decade
and half of my life at Rajkot, this was an unreal example simply because in
that period not many middle class families aspired to have a car (the
industry simply was not around!); so they, willy-nilly settled for having
babies! Had my own parents had any real choice, then I may not have been
born and you may in turn indeed have been spared of this oration!

A little later, I read Mohandas (Gandhi) who insisted in the early

decades of 20th century CE that the 'Western' economists had got their basic
theorem all wrong!2 The truth was the other way round: human 'needs' are
finite and resources are infinite! In his usual aphoristic style Mohandas
distinguished between 'need' and 'greed.' He obviously did not deny that
being and remaining human entails satisfaction of certain basic needs but
quested for a constitution of a just society (one way of understanding his
protean notion of Swaraj) which was not driven by market forces but by the
virtues of social cooperation based on the art and craft of aparigraha: non-
covetousness, abstinence and frugality in consumption, best expressed by
his aphorism of simple living and high thinking3 - a motto that
globalization-induced universal middle classes have now fully reversed
into ostentatious living and little thinking! Today, we know this truth in
some newly fangled languages of 'sustainable development' poignantly
placed as we remain as custodians of whatever may be left of 'Nature' in the
wake of our understanding of the destructive potential of global warming
and climate change!
1
G.B. JATHAR & S.G. BERI, INDIAN ECONOMICS (1942).
2
MOHANDAS GANDHI, GANDHI: HIND SWARAJ AND OTHER WRITINGS (Anthony Parel ed.,
1997).
3
Id.
2013] Law and Unmet Social Needs 3

The author of the Hind Swaraj fully inveighed against free market
capitalism in ways reminiscent of Karl Marx,4 who a long while ago insisted
that modern capitalism may not be simply understood as the multiplication
of goods and services by market and industry; rather, the magic of capitalist
production consists in the unending production of desires. Mohandas
unerringly grasped this in terms of the ceaseless production of ethical evils
in a market-driven economy, as not heralding human advancement and
progress. He, unlike Marx, did not share the bourgeois Enlightenment
notions of early industrial capitalism as heralding the idea of progress,
ending feudal ways of domination and marking the advent of class struggle
as a promise for emancipatory politics. This is a story for another day,
obviously!

What Mohandas realized, contra Marx, was the fact that all
human/social needs are not created by markets alone. The Mahatma
recognized this in his movement against untouchability. The ritual
distinctions and discriminations constituting untouchability, he recognized,
produce systemic justifications for the production of social indifference
towards the Unmet Social Needs (“USN”) of untouchable peoples. As we
all know, his response to this deprivation was via temple entry agitation,
which has now blossomed into some judicial decisions allowing access
even to the sanctum sanctorum or the Hindu temples.5

In contrast Bhim Rao Ambedkar - whom I fondly name the Aristotle of

the Atisudras, the Indian social and economic proletariat as he named them -
followed a different trajectory. In his classic work entitled What Congress
and Gandhi have done to the Untouchables, Dr. Ambedkar pointed out with
a profound insight that the USN of the Atisudras fully served the social
needs of the dominant castes.6 I have recalled elsewhere in my writings on
4
KARL MARX, DAS KAPITAL (Regnery Publishing, 2000).
5
This is not an appropriate occasion to offer any analysis of the decisions imposing
reasonable regulations on freedom of conscience and religion otherwise guaranteed by
Article 25 of the Constitution save noting with Marc Galanter's early prescient observation
that these decisions, alongside with others, constitute a charter of reform of 'Hinduism.' I
may add a further remark. Their Lordships even at the Supreme Court develop this
jurisprudence as if Mohandas and his jurisprudence never ever existed! Indian justices thus
form a part of the constitutional elite, united by a determined effort towards the constitutional
erasure of the Mahatma.
6
B.R. AMBEDKAR, WHAT CONGRESS AND GANDHI HAVE DONE TO THE UNTOUCHABLES
(1945).
4 Journal of National Law University, Delhi [Vol. 1

7
Ambedkar this striking difference. Bhim Rao Ambedkar's response to
Mohandas crystallized in the now not so well-known Mahad Satyagraha
directed against lethal violence practiced by high caste Hindus against
untouchables, involving preventing the latter from drawing water from a
single village well. Ambedkar thus demonstrated, in my view at least, that
USN are caused by the ends of caste domination going far beyond the Hindu
'spiritual' realm. He further demonstrated acutely the ways in which this
form of slavery and servitude benefitted primarily the dominant castes and
classes.

For Mohandas, the 'rights' languages remained ethically unviable; in

contrast, Ambedkar constantly strove to convert the USN of Atisudras in the
distinctive languages of Indian human rights. I believe that this contrasting
style of discourse and action remain pressingly pertinent even today in
some of our collectively mindless 'celebration' of the sixty years of the
Indian Republic

Allow me then, and thus, at the outset that Unmet Social Needs remain a
province and function of not just of economics (market-driven) but also
mark the realms of social, religious and cultural dominance. Allow me also
to add a further remark: the Indian constitutional architecture remains fully
complicit with the creation and sustenance of vast arenas of USN.

II. SOME BASIC ANALYTIC CONCERNS

The Ambedkar-Mohandas debate itself suggests a range of analytic

concerns that we ought to fully bear in mind while considering the problem
of Unmet Social Needs. Several questions underlie the analytic concerns.
First, what may we - here meaning social theory-makers - signify by the
expression 'needs'? Second, how may the elected representatives and state
officials proceed to identify, map, classify, and respond to these needs? In
this respect, third, how may transnational intergovernmental networks
impinge on national spheres of public policy and action? Fourth, on what
basis may 'jurisdictions' - spheres of public power - be distributed for
'meeting' social needs? Fifth, should the appellate judiciary concern itself

7
Upendra Baxi, Justice as Emancipation: The Legacy of Babasaheb Ambedkar, in CRISIS
AND CHANGE IN CONTEMPORARY INDIA (Upendra Baxi & Bhikhu Parekh eds., 1995).
2013] Law and Unmet Social Needs 5

with the tasks of protection of rights rather than extend its powers to the
identification and meeting social needs? Sixth, when social needs remain
wantonly unmet for long stretches of constitutional time, could violent
social action represent itself as a long term agency for rectification of public
indifference towards meeting USN? Each one of these questions is related
but also distinct and needs to be further nuanced. In this conversation, I will
briefly respond to some of these concerns.

III. THE CONCEPTION OF NEEDS

It is a well-known truth that human beings everywhere experience

needs, wants and desires, have aspirations and interests, and claim rights.
Yet, 'needs' differ from all these related categories. One may 'want' many
things that one may not actually need; one may desire things beyond one's
needs; one's aspirations may be higher than one's wants, needs and desires;
even so, not all wants and desires correspond to having needs or claiming
rights. We may want or desire to be billionaires, or be among the world's
first travelers to the moon; yet this may hardly be spoken of in terms of
needs, interests, or rights. The relationship between needs, rights, and
interests is rather complex, both in terms of sociological jurisprudence and
of human rights theory and movement.

As concerns 'needs' contrasted with desires and wants, Roscoe Pound

suggested (and here summarily put) the importance of the category of
'interests;' interests are social demands made by groups of peoples on the
law and state.8 The demands thus made may be based on needs, wants,
desires or even aspirations; what is decisive is not the subjective source of
demands but the objective status of their articulation.

Pound insisted that the fact that a demand is made constitutes an interest
and all demands thus made, no matter their ethical content, ought to be
regarded as valid just because these are articulated. Obviously, some
demands may be outside the existing law and may even be framed against it
(the very essence of legal transformation and law reform); other demands
may be made in terms that Hannah Arendt made famous via the expression
“the right to have rights”9 (the province and function of human rights
8
III ROSCOE POUND, JURISPRUDENCE 3-324 (1959).
9
HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM (1986).
6 Journal of National Law University, Delhi [Vol. 1

movement everywhere). Because demands are actually held interests that

individuals, collectivities, and even peoples make on the state and law, these
will not merely vary enormously but conflict inter se. The task of law - both
as legislation and as adjudication - is to provide arenas and mechanisms for
serial and ad hoc adjustment and settlement of conflicting interests.
'Adjustment' means that some demands will be recognized and met and
some others will be sacrificed for the time being. No legislative or
adjudicative adjustment of conflicting interests would be in any sense a
final settlement; Pound suggested that the difficult and delicate task of
justices (and I add legislators as well) is to pursue adjustment in ways that
avoid or minimize social “friction and loss.”10

If, however, some interests are disarticulated at the threshold, the law
itself becomes (as Harold Laski once put this) merely a “beatification of the
status quo.”11 In this event, the law becomes a near complete means of
domination or repression, leading at times to advocacy of violence as a just
program for social transformation.

Julius Stone in a critique of Pound further suggested that for the theory
of interests to work well, certain demands have to acquire the status of near-
absolutes.12 Put another way, freedom of speech and expression, movement
and association are interests that inhibit, and even prevent, disarticulation
of demands and no adjustment of conflicting demands may ever be
legitimate when these near-absolute demands stand compromised. Put still
another way, certain demands acquire the status of inviolable fundamental
13
human rights with their accompanying freedoms.

Specifically referring to the Nehruvian phase of Indian development,

Julius Stone suggested that the tasks of law, politics, and state in timespaces
10
Roscoe Pound, Law and Liberty, in LECTURES ON THE HARVARD CLASSICS 364-368
(William Allan Nelson ed., 2004).
11HAROLD J. LASKI, AUTHORITY IN THE MODERN STATE 283 (1919).
12
Julius Stone, A Critique of Pound's Theory of Justice, 20 IOWA L. REV. 531-50 (1935).
13
Incidentally, in my Julius Stone Memorial Lecture at Sydney Law School, I was able to
stress affinities between Pound-Stone legacy on the one hand and Martha Nussbaum and
Amartya Sen notions of capabilities and flourishing. Indeed the list of capabilities that
Nussbaum offers is of a piece with the Pound-Stone analytic of modern law. I mention this in
the hope that Indian lawpersons may find this genealogy of thought useful. Upendra Baxi,
Human Rights as Human Flourishings: From Julius Stone to Amartya Sen and Beyond,
Julius Stone Address at the Julius Stone Institute of Jurisprudence, Sydney Law School
(2001).
2013] Law and Unmet Social Needs 7

of the postcolony lie not just in responding to social demands (interest) but
rather in provoking articulation of these.14 I think that a major constitutional
process achievement of India thus remains insightfully articulated here.
Even so, we may surely ask both in the contexts of the planned economy of
the yesteryear, and the unplanned economy of Indian globalization,
whether this demand-formation triggered by state, politics and law has
ended up only creating and nurturing 'wants' and 'desires' of the middle
classes while failing fully to attend to the actually experienced basic needs
of the worst-off Indian impoverished humanity. I must leave today this
enormous question 'hanging in the air' as it were.

In contrast, human rights theory and movement more frontally address

the difficult relationship between human needs and human rights naming in
particular the problematic of democratic deliberation. Proponents of basic
minimum needs [“BMN”] rightly, in my view, suggest that contemporary
human rights discourse ignores overall the poignant urgency of meeting
BMN of the worst-off peoples or constitutional have-nots. In sum, they
identify BMN in terms of the survival needs of individuals and social
collectivities systematically denied roti, kapada and makan (food, clothing,
and shelter).15 Further, some BMN proponents include opportunities of
livelihood, access to public healthcare, literacy and access to elementary
and primary education, and basic gender equality. In this sense, they
encompass an entire range of BMN articulated in the human rights
instruments starting their itineraries from the Covenant on Social,
Economic, and Cultural Rights.16

Human rights movements across the world insist thus on converting

BMN into the languages of enforceable human rights. To be sure, this
process is made possible by a conjoint insistence on a set of basic
immaterial needs (BIN). The BIN are said to be 'immaterial' in the sense that
they set out the spacetime of rights and freedoms, even for those who may
not have access to BMN here and now. As Amartya Sen has always and
often with deep insight maintained, the BIN remain indispensable often for

14
JULIUS STONE, SOCIAL DIMENSIONS OF LAW AND JUSTICE (1971).
15
Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies, 13(3/4)
INDIA INT'L CENTER Q. 185-200 (1986).
16
International Covenant on Social, Economic and Cultural Rights, 993 U.N.T.S. 3 (Dec. 19,
1966).
8 Journal of National Law University, Delhi [Vol. 1

17
the articulation of the BMN. At any rate, no society may deny either the
BMN or the BIN and yet claim to be a morally decent society. This remark
remains especially pertinent to Indian constitutional device of Part III and
18
Part IV. I speak to this briefly a little later.

IV. MAPPING AND MEETING SOCIAL NEEDS

Identification and mapping of social needs is a continuing and complex

process. I say 'continuing' because addressing social needs remains an
intergenerational affair; I say 'complex' because mapping social needs
remains at once a political process and an epistemic affair - indirect
governance by 'experts.' Expert knowledge remains constrained by the
politics of resourcing basic needs that figures in their analysis as an
unavoidable constraint. As far as I know, no serious attempt has been made
to cost the project of comprehensive India-wide poverty alleviation; all we
have are fluctuating demarcations of the ways of the definitions of the
poverty line and the regime based programs of governmental largesse.
Please also examine the literature in publicly-owned banks and public
finance institutions whose lending policies to the impoverished rest on the
distinction between 'consumption' and 'production' needs: under this
rationality neither category extends to needs such as health, schooling and
education. The simple point I am making is this: we do not have as yet a full
mapping of social needs (including of course the legal needs) of the
constitutionally worst-off and therefore no sense of how much it may cost
the nation to meaningfully advance overall towards meeting identified
social needs. In this sense the ways in which the experts proceed with their
task often condition and even determine the modes of responding to these
needs. As Kishen Mahajan once put it, in this situation all that remains at
hand are the practices of “unconstitutional economics!”

The Indian Constitution itself creates methods of mapping and meeting

needs via its differentiation between 'rights' in Part III (fundamental rights)
and Part IV (Directive Principles of State Policy.) Part III assigns the
difficult custodianship of civil and political rights to the Indian appellate
judiciary; in contrast, the task of responding to social needs is consigned to
17
AMARTYA K. SEN, COMMODITIES AND CAPABILITIES (1985).
18
Part III of the Indian Constitution deals with 'Fundamental Rights.' Part IV deals with
'Directive Principles of State Policy.'
2013] Law and Unmet Social Needs 9

the leisurely and constitutionally insincere modes of legislative and

executive action via Part IV.19

There were many voices in the constituent assembly debates (“CAD”)

that insisted that basic human needs (“BHN”) should form a part of the
fundamental rights; after all, they said, the making of a new constitution of
India meant a certain end to systemic denial of the basic needs of the most
impoverished future citizens of India. For the most part, the Nehruvian
CAD chorus drowned these voices; Jawaharlal Nehru20 believed in
Parliamentary supremacy, if not sovereignty. Accordingly, experiments in
planned Indian development should be beyond any strict judicial scrutiny,
even in terms of monitoring steps that Part IV of the Constitution requires to
be taken as a paramount obligation of Indian constitutional governance.
Strict scrutiny of some agrarian reform legislation triggered Nehru, in the
First Amendment of the Constitution, to place judicial surveillance of
economic policies into the Ninth Schedule: the specified laws included
therein were sought to be protected from any kind of constitutional judicial
review. This is not an occasion to review constitutional developments that
followed save reminding ourselves of a withering remark of Justice
Gajendragadkar who said: “[o]urs in the only Constitution [in the world]
that needs protection against itself.”21 I shortly note some changing stances
of adjudicatory policy that seek a determined reversal of the practices of
'unconstitutional economics.'

For the moment, it needs noting that some activist CAD voices
registered some remarkable normative triumphs, notably via the Article 17
abolition of 'untouchability' and further especially via fundamental rights
against exploitation enshrined in Articles 23 and 24.

Note fully, please, the aspects of normative achievement. Never before

in the world constitution-making history, had a constitution proclaimed

19
To be sure, as I have been saying for some time this constitutional arrangement fully
anticipates the division of contemporary human rights into civil and political rights on the
one hand and on the other the rights compendiously named as economic and social human
right;. I wonder though whether we ought to remain the least bit proud of this inaugural
innovation!
20
Perhaps the truest embodiment of what Antonio Gramsci named as a 'Modern Prince'!.
21
GRANVILLE AUSTIN, WORKING A DEMOCRATIC CONSTITUTION: A HISTORY OF THE
INDIAN EXPERIENCE 85 (1999).
10 Journal of National Law University, Delhi [Vol. 1

fundamental rights as extending to human rights violation in civil society

and by non-state actors. Never before also had any constitution proceeded
to thus constitutionally criminalize social conduct as a constitutional
offence. Nor, as far as I know, has any modern or postmodern federation
(such as the EU) suspended the federal principle by investing the Indian
Parliament with the powers to override legislative competence otherwise
solely in the province of state legislature.22 I do not here reiterate the related
unique normative accomplishment of legislative reservations for SC/ST
communities in education, civil services and legislatures. With some
significant others, I have frequently critiqued the ways in which hegemonic
constitutional elites have fully betrayed this normative potential. Yet
stressing this sort of normative achievement is my way of celebrating the
sixty years of the Indian Republic!

V. JURISDICTIONAL SPHERES FOR

MEETING SOCIAL NEEDS

Further, we need to note that for the most part the principle and design
of Indian 'federalism' distributes and invests law-making and executive
competence on states within the Indian federation. No doubt, New Delhi
possesses enormous leverage in terms of framing national economic policy
planning; it distributes some enormous federal largesse via the Planning
Commission and the Finance Commission mandated distribution of public
revenues. Important as all this remains, as some recent debates concerning
23
the National Rural Employment Guarantee Act suggest, the existing
distribution of jurisdictional spheres remains, at least from the worm's eye,
a part of the problem rather than of any solution. One may only fondly hope
that the Panchayati Raj constitutional amendments may make an eventual
and decisive difference.24 I must apologize instantly for the brevity of these
remarks save highlighting that any distribution of jurisdictional spheres
remains constitutionally 'just' only in the proportion that it services the
needs of India's worst-off peoples. From this perspective, we need to
reinvent the design and detail of the Indian federalism.

22
See INDIA CONST. art. 35.
23
The Mahatma Gandhi National Rural Employment Guarantee Act, No. 42 of 2005.
24
INDIA CONST. amended by The Constitution (Seventy Third Amendment) Act, 1992 &
The Constitution (Seventy Fourth Amendment) Act, 1992.
2013] Law and Unmet Social Needs 11

VI. THE INFLUENCE AND POWER OF TRANSNATIONAL

INTERGOVERNMENTAL NETWORKS

Increasingly governance remains shot through by the enormous

proliferation of transnational intergovernmental networks. On the one side,
it includes the global international financial institutions (the World Bank
and the International Monetary Fund, and also their regional cohorts) and
on the other these include the EU and the United Nations System agencies
such as the UNDP, UNICEF, WHO, related UN Human Rights Treaty-
Bodies and yet further the UN industry named as the MDG - Millenium
Development Goals25 - here inclusive of a wide variety of state and NGO
actors/activists.) These networks make an important contribution indeed in
terms of identifying benchmarks and indicators for meeting BHN. The time
available for this presentation does not unfortunately allow any further
elaboration of how far these networks remain instruments of Northern
foreign policy and how far these constitute an authentic commitment
towards meeting BMN of the “wretched of the earth”26 with optimal respect
for their human rights.

VII. ROLE OF THE INDIAN JUDICIARY IN

MEETING BHN

There is no question that the Indian Supreme Court in particular has

begun the process of converting 'human needs' into the languages of 'human
rights.' In the main, this has been made possible by social action litigation
(SAL) still miscalled 'public interest litigation' (PIL).27 As one privileged to
help inaugurate SAL and nurture it for about two decades, I may insist,
shorn of any further elaboration, on saying that that overall the process of
this conversion has been human-rights friendly for the Indian constitutional
have-nots and the worst-off peoples. Indeed, the normative judicial
achievements are rather immense and I have celebrated these in my writing
in the companionship of many significant others.

25
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2 (Sept. 8, 2000) .
26
FRANTZ FANON, THE WRETCHED OF THE EARTH (Richard Philcox trans., rep. ed. 2005).
27
See Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme
Court of India, 4 THIRD WORLD LEGAL STUD. 107, 108-11 (1985).
12 Journal of National Law University, Delhi [Vol. 1

The question here is different and not at all constructively posed in

terms of judicial will to power. Rather, the concern here remains at least
threefold. First, because justices may neither command the power of the
purse or the sword, the question is how far the normative constitutional
leadership of activist justices may translate into willed and determinate
political response. Second, and despite this limitation, how far the worst-off
may still be said to have benefited by acts of symbolic judicial leadership?
These two issues require empirical analyses and I hope that National Law
University, Delhi will pursue these in a far more determined manner than its
sister institutions.

The third concern is indeed perplexing. While the Indian Supreme

Court has set wise limits on the plenary powers of Parliament to amend the
essential features or the Basic structure of the Constitution,28 the Court does
not conduct itself as bound by this discipline. Their Lordships may give
with one hand today what they may blithely take away tomorrow. I have for
example fully in view the determined reversal of labour rights
jurisprudence since the 1990s; fortunately as it happens. Justices G.S.
Singhvi and A.K. Ganguly have recently lamented this reversal in a 2010
judgment.29 Lest a larger Bench of the Court may be propelled to describe
this articulation as an act of judicial indiscipline, it must be fully recalled
that that the accelerated demolition of the constitutional protection of
labour rights has been thus far achieved by similar gestures of judicial
indiscipline: smaller benches have overruled otherwise binding decisions
concerning the rights of workers!

VIII. VIOLENCE AS A WAY TOWARDS ARTICULATING

BMN AND FUNDAMENTAL HUMAN RIGHTS

If the 24/7 mass media pundits have helped create a climate instantly
de-legitimating organized political violence that indiscriminately kills, or
hurts and harms innocent lives in the process, those inclined to portray such
violence as violence for equality remain constantly asked to condemn it in
the name of the nation and its democracy. This is a contested terrain which I
may today only briefly suggest as worthy of all your serious deliberation.
28
Keshvananda Bharti v. State of Kerala, (1973) 4 S.C.C. 225.
29
Harjinder Singh v. Punjab State Warehousing Corporation, (2010) 3 S.C.C. 192.
2013] Law and Unmet Social Needs 13

Most human rights and social activists, while condemning

indiscriminate violence, still insist that we understand it as a signal of the
multiple failure of the practices of the Indian plebiscitary democracy; most
holders of public power suggest that collectively organized states of social
peace is a superior way of meeting the demands of even thus far neglected
tasks of social justice. How may we begin to respond to these distress
signals and the newly formed political summons?

This indeed remains a sovereign question, entailing differentiation

between practices of organized collective political violence. There is, in my
view, no other response imaginable than saying that some of these practices
have been overall democracy-reinforcing. Take for example the practices of
political violence that generated the linguistic reorganization of the states
within the Indian federation, or those of worker's violence via strikes and
gheraos, or the Mandal-type violence that shook and reconfigured the
national agenda of doing politics. Further, an enormous amount of
politically organized symbolic violence remains fully well tolerated by the
managers and agents of the Indian state: destruction of public property in
the wake of politically organized protest violence remains the norm rather
than an exception. On another register, parliamentary debates over Gujarat
2002, Delhi 1984, and other critical events organized fully by state,
regimes, and party leaders and cadres suggest the growth and development
of the politics of immunity and impunity.

The question for mature democratic reflection thus stands posed

differently at least. I may do no better here than to invite your close attention
to Antonio Negri's classic work entitled Insurgencies, which traces for
Europe the itineraries of popular sovereignties pitted against some forms of
30
articulations of state sovereignty. Reading Negri educates us fully into
tasks of responsive and responsible (and with Jacques Derrida phrase-
31
regime ) the unending tasks of political 'response-ability.'

Even so, one may tentatively at least proceed to draw some bright lines
between constitutional insurgencies and peoples wars against the State
30
ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE
(Maurizia Boscagli trans., 1999).
31
JACQUES DERRIDA, MARGINS OF PHILOSOPHY 17 (Alan Bass trans., 1982). See also JEAN
14 Journal of National Law University, Delhi [Vol. 1

directed to its full overthrow. These bright lines do at least enable us to

distinguish the project of violence for equality from the revolutionary
project of establishing a new state-formation. The question concerns not
just the response-ability to those who kill, hurt, harm innocent lives and the
survivors future life-projects; the question also concerns how may we
develop an ethical (human rights based) policy in the wars of terror, Indian-
style. If peoples war groups remain unresponsive to violence directed
towards the hapless impoverished and worst-off impoverished peoples, is
the only possible alternative left to state managers to replicate and
reproduce this form of violence? If the answer may be in the affirmative,
this fully imperils, and often in a savage measure, the future of human rights
and constitutionalism in and for India. All I may say here, bereft necessarily
of any further refinement, is just this: the state managers and agents ought to
demonstrate a finer solicitude for constitutional values than those who
declare a 'war' against them; in sum, we need urgently to device ethical and
human rights-based 'counter-terror' policy regime.

FRANÇOIS LYOTARD, THE DIFFEREND: PHRASES IN DISPUTE (Georges Van Den Abbeele
trans., 1991).