Critical Legal Studies (CLS hereinafter) activists have concentrated on how law led to unjust social hierarchies, resulting in the dominance of majority/elite over minority/marginalised. They contend that seemingly neutral language and institutions managed through the legal system conceal power and control ties. CLS’s defence goes further. The social values, on which there may possibly be consensus, are not useful in some universal or abstract sense, according to CLS. They are values because our society is set up to instil just a specific set of values in its members.
Although many CLS scholars have opposed or rejected attempts to systematise their work.Scholars like Duncan Kennedy and Mark Tushnet use their methodologies to articulate assertions of textual ambiguity and historical contingency. This is to ascertain the acknowledgement of social issues that would else not be visible if not given special treatment. However, CLS does not propose a solution to the problem they accept that the goal of the ideas is to continue the critique of current society and not to have these specific proposals enacted in the short term.
This paper seeks to critique the above aspect of CLS by looking at the context of the Indian legal system. To begin, we have Articles 15, and 17, and measures such as Affirmative Action, among others, which CLS would advocate. Following this, we note that, despite these laws and judgements, there are very frequent incidents of this not being obeyed, implying that CLS is feeble for the very purpose it seeks to achieve. I expand this idea by arguing that, at the other end of the spectrum, what we need is for CLS to look along with Ambedkarite jurisprudence to suggest a solution/framework that CLS leaves in the middle.
CLS in Indian Legal System
Mark Tushnet claims that legal and political elements in society cannot be separated for the functioning of the government branches, and in the case of India, a series of judgements provide the same conclusion. If looked chronologically, in the case of AK Gopalan v State of Madras,courts adopted a positive stance when they narrowed the meaning of Article 21 of the Indian Constitution to include only freedom of the physical body and nothing else. At that time, it could be argued that India was a young democracy that was blossoming, and its citizens had great faith in the political wing of the government because it was mostly made up of freedom warriors. As a result, the court also gave the words of the constitution and the legislation of the parliament due respect. Later, The political environment had shifted by the time Keshvanand Bharti v. State of Kerala was decided. The court appeared to be split. The basic structural doctrine was advanced, but with a slender majority of just one judge. When Indira Nehru Gandhi v. Raj Narian was decided, India’s political landscape significantly shifted, and the court unanimously affirmed the basic structure theory. Finally, a natural law approach to the construction of the Indian Constitution was preferred by the court in Maneka Gandhi v. Union of India, which boosted its judicial review authority.
It is clear that the court’s positions changed as the political landscape of the nation changed, and the court had to decide how the Indian Constitution fit into the evolving political landscape. Here it must be noted that different individuals may hold different opinions regarding the need for justice, what constitutes justice in a given situation, what the court’s obligations are, and what the standard that the court should set. The court makes a political decision when it accepts one interpretation of the law and the norm. The CLS movement has made a substantial contribution to bringing attention to these facts. Therefore, when CLS scholars claim that the laws are biased in the sense that they are illegitimately hierarchical makes a clear way to understand a few aspects of the Indian legal system.
The Divergence From the Expected Norm
The aforementioned logic also shows that when a law is passed that is not supported politically and socially, it eventually loses its legitimacy and the situation is reversed as if the legislation or decision had never been passed. For instance, in the English case of Brown v. Board of Education, the Supreme Court declared school segregation unlawful in 1954, but the deep South so commonly disregarded this ruling that by 1964, very few of the schools there had undergone desegregation. In this regard, the case was a short-term triumph and a long-term irrelevance (the short period being the days after the Court’s ruling) (and the long term being the ensuing decade). This long-term irrelevance is the part where CLS falls short of its purpose of social inclusion in a practical sense.
The relationship between legal successes and political outcomes is examined in the critique of rights by CLS scholars. It is divided into three categories ranging from weak to strong, in its most flimsy form, the critique of rights claims that there is no necessary connection between winning legal battles and furthering political goals; in a slightly more forceful form, it claims that, more often than most lawyers believe, winning legal battles either fail to further political goals or even work against them. The strongest interpretation of the critique of rights contends that achieving legal success nearly never furthers political objectives.
Robert Gordon contends that despite notable legal triumphs for women, labour, the poor, and minorities, the social power structure has not been fundamentally changed. The labour movement obtained the vitally important legal right to organise and strike at the expense of adhering to a system of legal regulation that upheld the validity of management making the majority of the significant decisions regarding the conditions of work.[1] Cases like this fall into category II of the critique of rights. Similarly, the point regarding caste and the enactment of legislation that prohibits caste discrimination being enacted at a time when the Indian society was not ready, poses the issue regarding the potential of the enactments and their real impact.
Thus to conclude this section, the issue that is identified is about the non-compliance of the law, the CLS proposes that once the provisions were enacted it could have been said that the issue of the law being inherently biased and hierarchy illegitimate could be solved to some extent. Whence, this enactment becomes inefficient the solution that CLS would again propose would not be very different from the first one, thus invoking a vicious loop. In this next section of the paper, I would be arguing for a solution to this issue that CLS theory leaves in between by looking at it through the lens of Ambedkarite jurisprudence and provisions helping affirmative action.
Extending CLS Through Ambedkarite Jurisprudence
“Law guarantees the untouchables the right to fetch water in metal pots… Hindu society does not allow them to exercise these rights… In short, that which is permitted by society to be exercised can alone be called a right. The right which is grounded by law, but is opposed by society is of no use at all”
—Dr. Ambedkar[2]
When there is a strong majoritarian bias against the minority in question, Babasaheb wondered how the law can be used to advance the interests of a weak, geographically dispersed minority. According to his argument, the majority community’s institutionalised bias should be combated through the coercive authority of the law. It is clearly an extension after the enactment of necessary legislation that could be argued because of the CLS thinking.
The problem that CLS leaves behind and that Ambedkar fights is that rights and laws can be implemented when the offenders are a few people, when the number changes to the whole of society then there is not much that law could do. There is no method for punishing the multitude, law can never be used to counter a whole group of individuals who are adamant about resisting it. He points out that the sole defence for all rights, whether they are fundamental or not, is a social conscience.
To get this social conscience, Ambedkar promulgated that caste being the law was similar to Austin’s theory of command and due to these commands/laws, the space for the marginalized could never be created and therefore what should the call is counter majoritarianism and not positivist reasoning. This would fall in category iii of critique of rights where there is law but since it is not politically accepted its authority would subside eventually.
To get through this issue we would need to look at counter-majoritarianism through the lens of another tool that Ambedkar proposes, namely constitutionally morality. He vehemently proposes that a government that is both free and peaceful must be able to spread constitutional morality throughout the entire community, not just the majority, because even a strong and obstinate minority can make a free institution unable to operate without having the means to seize power for themselves. For this, he claims that this morality has to be cultivated because in India, the majority is not created or destroyed, rather it is assigned by the birth of the person so the chances of changes become very less as an actual result of the social movements.
We noted CLS claims that political and legal elements cannot be separated and political views are founded in society in a significant amount, so given that the majority, at least in India, is to remain the same what becomes necessary is to put constitutional morality above public morality. It is important to emphasise that the main objective of CLS is to find a path to a constitution that is fair and gives rights such as fundamental rights and articles 17, 15(2), etc. By combining Ambedkar’s constitutional morality with counter-majoritarianism, I am suggesting a course of action for enacting those provisions in a way that makes them useful.
For instance, CLS seen with Ambedkarite jurisprudence would work together to get a proper outcome was seen first in the case of Naz Foundation v Government of NCT of Delhiwhere the Delhi High Court struggled to write a decision that would protect the rights of the LGBTQ+ community in the face of religious leaders’ claims that homosexuality is against public morality and, thus, against their religious convictions. The Court decided to avoid the discussion of religion and sexuality by claiming that it was completely irrelevant. Public morality would be superseded by “constitutional morality” even if the majority of a given religion’s adherents were against homosexuality and, consequently, “public morality” was also against homosexuality.
Conclusion
In this essay, I’ve established a chronological flow that starts with the framework and understanding of CLS and ends with the conclusion that, despite being crucial for achieving objectives like social inclusion and representation, CLS falls short in terms of practicality. One of the reasons is that the political and social context does not support the rule; as a result, social rules take precedence, even though the legal rule may last only a short time. This is referred to as a “short-term triumph,” which later becomes obsolete and becomes long-term irrelevant. Further, Since CLS is a constant critique of law, it does not offer a solution but instead highlights additional inconsistencies that would create a vicious cycle where, in reality, little would change from the existing quo. CLS is important because it brings to the table the acknowledgement of the issue. Given the nation’s communal majority and constitutional morality, it follows that there must be counter-majoritarian laws in the Indian legal system. This would allow for the creation of a single coercive and representative method for social inclusion, completing the task that CLS would likely leave in between.
[1]Robert Gordon, “Some Critical Theories of law and Their Critics,” in The Politics of Law 647 (David Kairys ed., third edition, Basic Books: New York, 1998).
[2] Narendra Jadhav, ‘Ed., Ambedkar Speaks’ (Konark Publishers, New Delhi, 2013, Vol. I)’ 186.
Author: Ayush Mathur
Juris Centre 