The 'Third World' and Socio-Legal Studies: Neo-Liberalism and Lessons from India's Legal Innovations
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| DOI | 10.1177/0964663905057592 |
| Author | Radha D'Souza |
| Subject Matter | Articles |
THE ‘THIRD WORLD’ AND
SOCIO-LEGAL STUDIES:
NEO-LIBERALISM AND LESSONS
FROM INDIA’SLEGAL
INNOVATIONS
RADHA D’SOUZA
University of Waikato, New Zealand
ABSTRACT
A terse, brief order of the Supreme Court of India in the Networking of Rivers case
in September 2002 impugns the role of public interest litigation in the wake of neo-
liberal reforms. At a poignant moment in India’s ‘tryst with destiny’, socio-legal
studies in India stand disarmed and disempowered without adequate conceptual and
theoretical tools to analyse and interpret the event in emancipatory ways. The case
inaugurates a new phase in judicial activism and Public Interest Litigation in India, a
subject that has been written about extensively both in India and elsewhere. In this
article the Networking of Rivers case is used as a vehicle to explore the trajectories of
developments in socio-legal studies in India and the ways in which it may have
contributed to the present theoretical and conceptual impasse. The article argues for
a more geo-historically differentiated understanding of the theoretical underpinnings
of socio-legal studies in India and the ‘Third World’ generally.
KEY WORDS
law in development; Networking of Rivers case; public interest litigation; river basin
development; ‘Third World’ context
SOCIAL &LEGAL STUDIES Copyright © 2005 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 14(4), 487–513
DOI: 10.1177/0964663905057592
INTRODUCTION
ATERSE, BRIEF order of the Supreme Court of India in the Networking
of Rivers case impugns the role of Public Interest Litigation (PIL) in
the wake of neo-liberal reforms.1 The case inaugurates a new phase
in judicial activism and PIL in India, a subject discussed extensively in India
and elsewhere.2
Typically, PIL cases involved disputes between citizens and state and/or
disputes between corporations and individuals/groups mediated through
state agencies and statutes. Inspired by the more conventional judicial
activism of the period 1969 to 1973 (Baxi, 1997: 134), jolted by the declara-
tion of Emergency between 1975 and 1977 (Divan, 2000), PIL evolved as a
distinct jurisdiction created through judicial innovation. The first phase of
PIL between 1977 and 1987 emphasized human rights and facilitated access
to justice for marginalized classes and groups. During the second phase
between 1988 and 1998 the emphasis shifted to governance issues (Sathe,
2003: 18). From 1998 onwards the Supreme Court’s responses to economic
legislation in the wake of neo-liberal reforms, which include privatization,
liberalization, withdrawal of the state from critical areas of decision making,
and increased federal intervention in the states among other things, has raised
concerns about the ramifications of PIL in the era of globalization (Baxi,
1997; Dhavan, 1997; Manor, 1998; Sathe, 2000; Ganesh, 2001; Bhushan,
2004). In the Networking of Rivers case the Supreme Court has intervened
for the first time in inter-state and federal–state relations through the mech-
anism of PIL.3This is a significant development. In retrospect, the more
recent developments in PIL in the context of neo-liberalism make it difficult
to sustain the theoretical and conceptual premises in socio-legal studies that
informed the evolution of PIL in India.
In this article the Networking of Rivers case is used as a vehicle to explore
the theoretical and conceptual tools of analysis in socio-legal studies and the
present impasse in PIL. The article argues for a differentiated and more geo-
historically grounded understanding of the theoretical underpinnings of
socio-legal studies relating to the ‘Third World’ in ways that integrate, theo-
retically, the internal (national) and external (international), the diachronic
and synchronic dimensions of law in societies with colonial histories.4The
second part of this article identifies the historical, geographical and concep-
tual disjunctures in socio-legal studies, in particular, law-in-development
studies in the ‘Third World’. The third part summarizes the Networking of
Rivers case and the questions posed by the case for law-in-development. In
the final part of this article I shall analyse the socio-historical and constitu-
tional context for interlinking rivers of the Indian subcontinent and the
law–state–society relations in neo/post-colonial societies, the rationalization
for PIL, and its structural implications in the context of neo-liberal reforms.
488 SOCIAL & LEGAL STUDIES 14(4)
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