Modernisation as a Value

The case for treating it as a value

Because the alternative has a cost that is not neutral either. Leaving arrangements as they are is a choice, and its cost falls on the people the arrangements disadvantage. Untouchability, child marriage and the exclusion of women from inheritance were traditional, and a State that declined to interfere would have been making a value judgment in favour of those who benefited.

Because the Constitution is a modernising document by design. The Constituent Assembly debates on untouchability, on the Hindu Code and on adult franchise are debates about whether to accept an existing order, and the answer given was no.

Because the values chosen are defensible on their own terms. Equality, liberty and dignity do not need the modernisation thesis to support them; they are defended by argument, and the thesis is at most a description of societies that have adopted them.

And because the beneficiaries say so. The clearest evidence in this paper is that the demand for statutory change on caste, on dowry, on succession and on harassment came from the people the traditional arrangement disadvantaged, not from a theory.

The case against

That it is westernisation under another name. The markers, individualism, contract, specialisation and secular authority, are drawn from the history of Western Europe, so a society is measured against somebody else's past. The reply is in [Modernisation and the Law]: the markers can be stated as organising principles rather than as practices, and Japan is the standing counter-example. The rejoinder is that in practice they are not so stated.

That it treats tradition as an obstacle. A tradition is also a store of knowledge, of dispute settlement, of insurance against misfortune and of meaning, and dissolving it destroys those along with the injustice. The panchayat that decided disputes in a day is dissolved and the court that replaces it takes eight years, which is exactly the argument in [Alternative Approaches to Law].

That it is measured by institutions and not by outcomes. A country can have every modern institution on paper, a court, a commission, a registrar, an inspectorate, and deliver nothing, which is the finding in [How Far POCSO Has Worked] and in [The Courts and the Enforcement against Child Labour].

That it has justified displacement. The Planning Commission's Expert Group of 2008 said that the development paradigm was IMPOSED on communities and reduced them to a sub-human existence, and the Supreme Court adopted that in Nandini Sundar. Progress has been the reason given for the dispossession described in [The Causes: Land, Dispossession and the Failure of Law].

And that it is selective. Somebody decides which practice is a harmful tradition to be abolished and which is a cultural identity to be protected, and the decision is political. Compare the reform of Hindu personal law by statute with the position of the other personal laws, worked in [The Uniform Civil Code].

The Indian resolution

Not a choice between the two, but a set of tests. Indian law has not adopted the modernisation thesis wholesale and has not rejected it. What it has done is to identify the grounds on which a traditional arrangement may be displaced.

Ground one, an express constitutional prohibition. Article 17 and article 15(2) displace a practice whatever its antiquity, and no inquiry into tradition is permitted.

Ground two, social welfare and reform. Article 25(2)(b) permits a law for social welfare and reform notwithstanding the freedom of religion, which is how temple entry and the Hindu Code were justified. That is [Religious Freedom against Social Reform].

Ground three, the essential practices test. A practice not essential to a religion may be regulated, which is [The Essential Religious Practices Doctrine], and which is the most criticised of the three because it asks a secular court to decide a religious question.

Ground four, protection of a practice. Articles 25, 26, 29 and 30 and the Fifth and Sixth Schedules preserve arrangements rather than dissolving them, and articles 371A and 371G protect the customary law and social practices of Nagaland and Mizoram expressly.

So the Indian answer. Modernisation is a value, adopted in the Preamble and in article 51A(h); it is NOT a warrant, because a particular displacement must be justified on one of the grounds above; and where the Constitution protects a practice, the value yields.

And the reform of the justice delivery system

Why MU joins them. Because the courts are the institution in which the value is most obviously proclaimed and least obviously delivered. A modern legal order promises that a dispute will be decided by a rule, by a specialised body, within a knowable time; and the delivery fails on the third.

The measure. Arrears, the length of a trial, the cost of reaching a court, and the distance to one. Those are [Reform of Court Processes and of the Justice Delivery System].

The consequence for the value. Where the modern forum cannot deliver, the pre-modern forum survives, which is [Legal Pluralism, and the Forums the State Did Not Create]; and the State's own answer is to create alternatives that borrow the pre-modern forum's speed and informality, which is the whole of the second half of this module.

Say that in an answer joining the two. The reform of the justice delivery system is not a separate topic bolted on; it is the test of whether modernisation as a value has been delivered where it matters most.

A worked example

MU sets: "Examine the modernization as a value and reform of justice delivery system." Fifteen marks.

Open by separating the two claims. Modernisation as a DESCRIPTION and modernisation as a PREFERENCE, and say that Indian law adopts the second.

Give the textual evidence. The Preamble; article 17; article 25(2)(b); article 44; and article 51A(h)'s duty to develop the SCIENTIFIC TEMPER, humanism and the spirit of inquiry and reform.

Give the case for. That the alternative is not neutral; that the Constitution is a modernising document by design; that the values are defensible on their own terms; and that the demand came from the disadvantaged.

Give the case against. Westernisation under another name; tradition as a store as well as an obstacle; institutions rather than outcomes; displacement justified as progress, with the Expert Group and Nandini Sundar; and selectivity.

Give the Indian resolution. The four grounds: express prohibition, social welfare and reform, the essential practices test, and the provisions that PROTECT a practice, including articles 371A and 371G.

Then turn to the justice delivery system. The modern promise of a rule, a specialised body and a knowable time; the failure on the third; arrears, cost and distance; and the two consequences, that the pre-modern forum survives and that the State builds alternatives that imitate it.

And close. That modernisation is a value the Constitution has adopted; that its delivery is measured in the courts; and that the second half of this module exists because the measurement has gone badly.

What this does NOT mean

It does not mean tradition is worthless. The criticism that tradition is a resource as well as an obstacle is a serious one and is accepted in this book.

It does not mean the Constitution abolishes custom. Article 13(3)(a) includes custom and usage in the definition of law, so a custom inconsistent with a fundamental right is void, and one that is not, is law. That is [Custom as a Source of Law].

It does not mean every displacement is justified. The four grounds are the test, and a displacement outside them is not authorised by the value.

And it does not mean the argument is settled. It is the argument in [The Uniform Civil Code], in [Temple Entry] and in [Who Counts as a Woman], and none of those is settled.

Quick revision

Description against preference: the thesis describes a direction; calling it a VALUE asserts that the direction is better. Indian law asserts it: the Preamble's four values; article 17; article 25(2)(b), social welfare and reform notwithstanding freedom of religion; article 44; and article 51A(h), the duty to develop the SCIENTIFIC TEMPER, humanism and the spirit of inquiry and reform, the only place the Constitution makes a habit of mind a duty.

For: the alternative is not neutral and its cost falls on the disadvantaged; the Constitution is modernising by design; the values are defensible independently; and the demand came from the people the arrangement disadvantaged. Against: westernisation under another name; tradition as a store of dispute settlement, insurance and meaning; measurement by institutions rather than outcomes; displacement justified as progress, per the Expert Group 2008 and Nandini Sundar; and selectivity in choosing what counts as a harmful tradition.

The Indian resolution, four grounds for displacing a practice: an express prohibition, articles 17 and 15(2); social welfare and reform, article 25(2)(b); the essential practices test; and the provisions that PROTECT a practice, articles 25, 26, 29, 30, the Fifth and Sixth Schedules, and articles 371A and 371G. And the link MU makes: the justice delivery system is where the value is proclaimed and least delivered, so its reform is the test of the value.

Test yourself

1. Distinguish modernisation as a description from modernisation as a value. As a description it states that societies have moved from status to contract, from custom to rule and from the local to the national, which can be tested against evidence. As a value it asserts that this direction is better and ought to be pursued, which is a judgment about what is good and cannot be tested against evidence.

2. Give the textual evidence that Indian law treats it as a value. The Preamble's resolve to secure justice, liberty, equality and fraternity; article 17's abolition of untouchability without inquiry into its antiquity; article 25(2)(b)'s permission to legislate for social welfare and reform notwithstanding the freedom of religion; article 44's direction on a uniform civil code; and article 51A(h)'s duty to develop the scientific temper, humanism and the spirit of inquiry and reform.

3. State the four criticisms of treating modernisation as a value. That it is westernisation under another name, measuring every society against one civilisation's past; that it treats tradition as an obstacle when it is also a store of dispute settlement, insurance and meaning; that it is measured by the existence of institutions rather than by outcomes; and that it has been used to justify displacement in the name of progress, as the Planning Commission's Expert Group of 2008 and Nandini Sundar record. A fifth is that it is selective in deciding what counts as a harmful tradition.

4. On what grounds may Indian law displace a traditional practice? On an express constitutional prohibition, as in articles 17 and 15(2); under article 25(2)(b), by a law for social welfare and reform notwithstanding the freedom of religion; where the practice is not essential to a religion, on the essential practices test; and never where the Constitution protects the practice, as articles 25, 26, 29, 30, the Fifth and Sixth Schedules and articles 371A and 371G do.

5. Why does MU join modernisation as a value to the reform of the justice delivery system? Because the courts are where the modern promise, that a dispute will be settled by a rule, by a specialised body, within a knowable time, is most clearly proclaimed and least clearly delivered. Where the modern forum cannot deliver, the pre-modern forum survives and the State builds alternatives that imitate its speed and informality, which is the subject of the rest of this module.