Upendra Baxi's Frame: Dissent, Development and Violence

The qualification, and an answer must give it. A legal order has to keep public order, and the fact that a claim is just does not entitle those making it to obstruct a highway. The proposition is not that public order law is illegitimate. It is that where public order law is the only response, the claim remains, and the next episode is produced by the same cause.

Proposition two: development as a producer of violence

The second word in the title, and the least expected in a criminal law paper.

The claim. A development project distributes its benefits and its costs to different people. The reservoir supplies a city and drowns a valley. The mine supplies an industry and takes a forest. Those who lose are characteristically those with the weakest title: tribal occupants without records of right, tenants at will, and the landless who have no title at all and therefore no claim to compensation.

Why that is violence on this paper's definition. Return to the chapter on what violence means. The harm is avoidable, it is produced by an arrangement rather than by an actor, and it falls on a group selected by a characteristic. It is structural violence with a public purpose.

Where it appears in this book. The displacement chapter in Module II, the Fifth Schedule and PESA, and the litigation about tribal land which reached the courts as a question of alienation and mining leases.

Proposition three: the legal order participates

The third and the sharpest.

The claim. The legal order is not a neutral machinery which sometimes fails. It is one of the instruments by which the violence is done, and it does this in four ways that this book documents.

By defining. What counts as an offence is decided by law, and for most of the period Module II covers the eviction was lawful and the resistance was not.

By procedure. Section 6 of the Armed Forces (Special Powers) Act 1958 and section 151 of the Suraksha Sanhita make the prosecution of official violence depend on a sanction from the officer's own employer. Section 197 of the old Code did the same for public servants generally. The result is not that official violence is lawful; it is that it is not tried.

By delay. A remedy that arrives fifteen years later is a different remedy. The acquittals in the agrarian massacres of Module II and the communal episodes of Module IV are very largely the product of time.

By the gap between the right and the remedy. Article 17 abolished untouchability in 1950. Appa Balu Ingale recorded that the first case under the Act made to enforce it reached the Supreme Court forty-two years later, and that more than seventy-five per cent of cases under it ended in acquittal at all levels.

Worked example: reading one episode through the frame

A public sector project requires land in a Scheduled Area. Tribal families occupying land without records of right are displaced. Some refuse to move. A protest is organised. A prohibitory order is issued. The protest continues, the police disperse it, and there are injuries. Two organisers are detained under the National Security Act. Eleven years later the compensation litigation is still pending and the project is complete.

• Development. The costs fell on people with the weakest title and the benefit went elsewhere. Structural violence with a public purpose.
• Dissent. The claim was never answered. What was answered was the assembly, by an order under section 163, and then the persons, by detention on the ground of public order.
• Violence. Direct, in the dispersal. Structural, in the displacement. And institutionalised, in the eleven years.
• The legal order's part. It defined the occupation as without title, supplied the prohibitory order, supplied the detention, and supplied a remedy too slow to be one.

Nothing in that account requires anybody to have acted in bad faith, and that is the point of the frame. Every officer in it may have done his duty.

What it does NOT mean

It is not a claim that law is worthless. The same book's author was among those who used public interest litigation to obtain the very remedies this paper relies on, and Module II's bonded labour cases are examples of the legal order working.

It is not authority. It is an argument, and an answer should use it to organise a discussion rather than to prove a proposition.

And it does not excuse the violence of those who dissent. Explaining the genesis of violence is not justifying it, which is exactly the distinction the Supreme Court drew in Nandini Sundar when it accepted the social genesis of extremism and struck down both the extremists' methods and the State's imitation of them.

Quick revision

• MU's printed Group V reference list names U. Baxi, Dissent, Development and Violence. It is the only work on violence MU names for this group.
• Dissent: claims are met administratively rather than substantively, by prohibitory orders, detention and public order offences, and the claim survives the response.
• Development: benefits and costs go to different people, and the costs fall on those with the weakest title, which is structural violence with a public purpose.
• The legal order participates, in four ways: by defining what is an offence, by procedure requiring sanction to prosecute officials, by delay, and by the gap between right and remedy.
• Use it to organise an answer, not as authority.
• Explaining is not excusing, and Nandini Sundar shows a court doing both at once.

Test yourself

1. Which work does MU name in its Group V reference list, and why does it matter for this paper? U. Baxi, Dissent, Development and Violence. It matters because it is the only work on violence the University names for this group, and its three terms correspond to the three things Modules II, III and IV are about.

2. State the proposition about dissent, and the qualification an answer must add. That the legal order treats dissent as a law and order problem, answering the assembly rather than the claim, through prohibitory orders, preventive detention and public order offences. The qualification is that a legal order must keep public order, and that the objection is not to the existence of those powers but to their being the only response, since the unanswered claim produces the next episode.

3. Why is development displacement violence on this paper's definition? Because the harm is avoidable, is produced by an arrangement rather than by an identifiable actor, and falls on a group selected by a characteristic, namely those with the weakest title to the land. That is structural violence, and its public purpose does not alter its structure.

4. Name the four ways in which the legal order is said to participate, with an example of each from this book. By defining what is an offence, as where eviction was lawful and resistance was not; by procedure, as in section 6 of the Armed Forces (Special Powers) Act and section 151 of the Suraksha Sanhita, which require sanction to prosecute; by delay, as in the acquittals that follow fifteen-year trials; and by the gap between right and remedy, as in Appa Balu Ingale, where the first case under the Protection of Civil Rights Act reached the Supreme Court forty-two years after article 17 came into force.