25 Social Movements, Governance and Government

Contents

1. Objective

2. Introduction

3. Learning Outcome

4. Legal Pluralism

5. Decentralization

6. Rights Based Approaches

7. In Brief

    Notes

1.  Objective

This module discerns the relationship between governmentality and social movements by exploring the concepts of legal pluralism, forum shopping, decentralization and rights based approach. Each of these concepts is explained with examples to understand their implications on the linkages between governmentality and social movements.

2.  Introduction

The relationship between governmentality and social movements is complex and both have serious implications on each other. In the broadest sense social movements are essentially movements around issues and causes that require action of the state apparatus or simply, government agencies. All social movements revolve around issues that require policy or legislative action and this happens only at the level of government. The purpose of any social movement is to create enough pressure on the government to bring about the desired change. Therefore, the inevitable connection between social movements and governmentality is well established from the very outset. In this module, we will discuss four aspects of governmentality, namely legal pluralism, decentralization, rights based approaches and forum shopping that have serious implications as well as act as determinants on social movements in many ways. Each of the sections below discusses the meaning of these terms and concepts in relation to social movements. The last section summarises the discussion and presents the concluding remarks. 

Legal pluralism as the name suggests addresses the plural or varied nature in which law operates. While recent literature in the field of legal pluralism has focused on the implications of globalization for the transnationalization of law, authority and governance (Randeria 2001, and Benda-Beckmann 2000 in Parthasarathy 2005) and its implications on the reduced sovereignties for states, and increased power in the hands of transnational bodies in influencing state level law making in a globalizing world; in the context of India the practice of law and governance is plural in many other senses. The secular and democratic fabric of India allows for the practice of several forms of personal and customary laws of different religious and ethnic communities existing in different parts of the country. Another form of legal pluralism is through the practice of what we may term as “informality”. The simultaneous existence and practice of formal law and governance along with the informal is a common feature of everyday lives in India.

In the context of globalization, the development model that is circulated by multilateral institutions like the World Bank (WB) and International Monetary Fund (IMF) promote good governance, decentralization, rights based approaches in a big way. Much of this global discourse on development revolves around creating a model of good governance that involves collaboration between the state and market interests. National policies and programmes of development often resonate these global values. Development aid from financial institutions and donor agencies also make the transnationalization of law mandatory even at the cost of the laws of the sovereign state. The proliferation of non-state actors (non government organizations (NGOs), community based organization (CBOs), citizen groups and associations, policy think tanks and private consultants) in various sectors of governance have further complicated the scenario with each having its own set of interests, agendas and beneficiaries. Though often touted as the forerunners of social movements, the presence of multiple players has significant implications on the questions of transparency, accountability and inclusivity. Besides, the sovereign laws of the land and the electoral process are often compromised in the overzealous attempts of various organizations for better governance and policy change.

3.   Learning Outcome

This module would acquaint you with the complex relationship between governmentality and social movements. Specifically you will learn about four aspects of governmentality, namely legal pluralism, forum shopping, decentralization, and rights based approaches that have serious implications as well as act as determinants on social movements in many ways.

4.   Legal Pluralism

In this section on legal pluralism three aspects of legal pluralism, namely transnationalization of law, the practice of customary and personal laws and the practice of informality are discussed to show how legal pluralism actually operates. The transnationalization of law has significant implications on how social movements and governmentality are connected. Big international NGOs like Amnesty International, Oxfam, DFID, many of the United Nations agencies like the UNDP, UNESCO and UNICEF working on several development issues in India and development projects funded by international agencies such as the World Bank and Asian Development Bank (ADB) have their own set of legal rules and norms that are universal across the countries they function in. This set of norms and rules may sometimes have no connection with the laws of the sovereign state. This is an example of how transnationalization of law operates in local contexts. In the post 1990s, governance has significantly altered with non-state actors like NGOs, CBOs and private developers taking over many of the functions of service provision, policy advocacy and development projects that were hitherto the exclusive domain of the government; the transnationalization of law has significant impact on the relevance of government agencies and laws of the sovereign state. For instance, international agencies such as the World Bank and Asian Development Bank (ADB) (funding important projects in many cities of India like the Mumbai Urban Transport Project or MUTP in Mumbai), “which were earlier working exclusively through national governments, now prefer to work through NGOs in implementing some of their projects” (Baud and De Wit 2008: 8). The Structural adjustment programmes financed by multilateral financial institutions and global trade supported by institutions like the World Trade Organization (WTO) have brought about changes in law and long term policy reforms in different countries including India. In developing countries, therefore, these institutions and their policies have faced with a lot of opposition and protest from anti-globalization and privatization forces like NGOs, activists and social movements. These protests have generally critiqued the role of these multinational corporations and multilateral financial institutions for various things like “increased dependencies and loss of autonomy, increased levels of unemployment, human rights violations, reduced state provided welfare measures, increase in prices of and consequent loss of access to public services etc” (Baxi 2001 in Parthasarathy 2005: 27).

In his study on the implications of forum shopping by rights groups, NGOs, and people’s movements against development policies and projects, Parthasarathy (2005) cites the example of the Narmada Bachao Andolan fighting against the massive Sardar Sarovar Project to explain that “ While on the one hand these agencies have been the target of attack by anti-globalization and privatization forces, NGOs, activists and social movements in countries like India have often appealed to these very agencies in seeking justice, especially in cases where they have been unable to persuade or obtain redressal of their grievances from the state and/or judiciary and legal system” (ibid: 28).

The transnationalization of law has a lot to do with the globalization and development model that the Bretton Woods institutions, namely the IMF and the WB promote. Much of their discourse on development for developing economies revolves around creating a model of good governance that involves collaboration between the state and market interests. NGOs that are the forerunners of social movements have become important institutions in this context. This is well established in literature. For instance, Appadurai (2001) observes that “non-governmental actors are here to stay and somehow need to be made part of new models of global governance and local democracy” (ibid: 24). Least governance is seen as the sign of good governance. Pinto (2008) explains that in the globalised scenario, the state is transforming itself and can legitimately transfer power or sanction new powers both above it through agreements between states to establish and abide by the norms of international government, and below it through the constitutional ordering within its own territory in respect of the relationship of power and authority between different levels of government and civil society1.The term “glocalisation2” (Amin 1994:282)   captures this double movement of globalisation on one hand and devolution, decentralisation and localisation on the other. Another challenge to the sovereign laws of the country comes from the practice of myriad customary and personal laws followed by numerous indigenous, ethnic and religious communities residing throughout the territory of India. The idea of one nation is relatively new in India and it was ushered in by the Constitution of India which describes India as Union of states. For centuries before that, territories were essentially based on their regional cultural identities and were governed by the rules and norms particular to that region. The practice of civil laws was sanctioned by religions. Though Article 44 of the Constitution of India talks about having a Uniform Civil Code as a cherished goal as desired by the framers of the Constitution and the leaders of modern India, we are far from it. This difficult terrain of the practice of personal and customary laws often contest with the sovereign laws of the country and sometimes proves detrimental to the idea of nation building. This however is a point of debate and different experts and groups may have contesting opinions. Therefore, it can also be argued that social groups and communities must not be forced to dilute their cultural identities for the sake of uniformity of law. Also for indigenous groups like various tribal communities spread across the length and breadth of India, this could also mean getting dispossessed of their commonly held assets and resources like forests and their produce once these resources come under formal official governance as these resources have been collectively owned by the members of that community and are governed by customary and unwritten laws for centuries.

Another dimension of legal pluralism is manifested through the practice of informality. Informality is a complex subject and has been explained differently in different contexts. Here we are trying to understand the informal practice of law and governance in order to show how legal pluralism operates. Let us understand how informal law operates with this example. In a study on operative legal practices, Eckert (2002) cites the example of Shiv Sena courts formed as a response to the disillusionment with the judiciary to offer fast and less expensive justice, especially to the poor, in the city of Mumbai on – family matters, conflicts over property and contracts, questions of land ownership, labour issues and disputes relating to everyday living in the city, quarrels about the rights to a specific location of a hawkers stall, disputes over garbage dumps or noisiness, petty crime and cheating, to litigations over loans and property and to real estate disputes (ibid: 7). As a response to the disillusionment with the administration to deliver services, Shiv Sena Shakhas (local offices) emerged as dominant centres of local governance in every part of Mumbai as well as in most towns and villages of Maharashtra that offered local services, organised infrastructural measures, such as water connections, garbage collection, public toilets or roads; initiated employment schemes, youth activities, crèches and tutoring; put up festivals, helped in obtaining admission to schooling, and thus addressed a wide variety of every day issues of urban life (ibid: 8). Through alternative forums of justice and providing various services, the Shiv Sena engaged with citizens, not as a formal political party, but more informally as an actor in civil society. These informal practices of unnamed law and local governance also have official sanction from the local administration and police. In a sense, it tunes with the―decentralisation programmes introduced by the state itself as well as international organisations, and good governance concepts of by-passing the state as the Shiv Sena, too, by-passes the state and organises the new world not only in an ideological manner ofrights to participation, but also in a practical manner, according to the study.

5. Decentralization

As already discussed in the section on legal pluralism, the transnationalization of law has a lot to do with the globalization and development model that the Bretton Woods institutions, namely the IMF and the WB promote with a focus on good governance that involves collaboration between the state and market interests.

In the globalised scenario, the state is transforming itself and can legitimately transfer power or sanction new powers both above it through agreements between states to establish and abide by the norms of international government, and below it through the constitutional ordering within its own territory in respect of the relationship of power and authority between different levels of government and civil society, best described as “glocalisation”. In the model of good governance decentralisation and devolution of administrative and financial power and functions are central themes. Turner and Hulme (1997) consider delegation of tasks to non-state actors like NGOs as a form of decentralisation whereas Swyngedouw (2005) considers decentralisation as essentially a process taking place within the state with either administrative or political overtones and involvement of other organizations could come under the banner of public-private partnerships. Decentralization is often seen as a virtue and advocated by many. Chandhoke (1993), for instance, offers the pluralization of the state theory. She explains that pluralisation replaces the bureaucratic, hierarchical and overloaded structures of decision-making with a multiplicity of agencies that can respond immediately and efficiently to problems. The decline of the state is accompanied by increasing attention towards civil society institutions by which organised interests seek to influence and engage with state institutions. Good governance facilitates the free play of market forces and enables decentralised institutions of participatory management to be formed.

Decentralisation in India was officially sanctioned through the 73rd and 74th Constitutional Amendment Act (CAA), 1992 pertaining to rural and urban contexts respectively. For this discussion we can focus on urban decentralization and then discuss some examples of civil society organizations and government initiatives to understand how decentralization actually unfolds. The 74th CAA conferred constitutional status on urban local bodies, such as municipalities, which were provided with elected councils, and constituted the third tier of government, the other two being the central government and the government of each state of the Union. This Act also allowed for participation of women and weaker sections of society through reservation of seats—one-third for women, and for the scheduled castes and tribes in proportion to their demographic weight in the population of the corresponding constituency; and transferred, to the urban local bodies, the responsibility for urban development—in particular, of providing urban infrastructure and services, and mobilising the required financial resources through taxes, levying of users’ costs and the attracting of private national and foreign investments. As per the 12th Schedule of the 74th CAA, 18 new tasks were added to the functional domain of urban local bodies, many of which—for instance, urban planning—still remain within the domain of state governments and have not passed on to the urban local bodies (see Pathak and Patel 2005).

Though decentralization in India is provided within the constitutional framework, there are varied ways in which decentralization actually operates. Citizen activism, community based partnerships, citizens’ participatory initiatives are varied ways in which decentralized attempts of service provision and development goals are carried forward. Many of these initiatives could qualify social movements because they advocate efficiency and good governance and influence policy changes through such decentralised efforts. NGOs, CBOs and Resident welfare associations (RWAs) are forerunners in such efforts and decentralization is a valorised and cherished goal. This vision of decentralized, people centric governance resonates with those that have happened globally as corroborated in several studies (Kearns and Paddison 2000; Pierre 1999; Rhodes 1997; Jessop 1999). Elander (2002) specifically locates the emergence of the concept of decentralized urban governance in the 1990s following the1992 Earth Summit in Rio and the 1996 Habitat II Conference in Istanbul, when actors representing central governments, local governments and NGOs were brought together for concerted action directed towards environmentally and socially sustainable development. This was the time when “local government faced a movement towards fragmentation and more differentiated forms of governance: local government became urban governance” (ibid.:191). As noted by Elander (2002), the impetus for such changes came from financial restrictions on lower levels of government, especially in European countries. Local governments in turn responded by contracting outservices to private producers, devolving responsibilities to the voluntary sector and developing bases of internal competition directed more towards the efficient use of restricted financial resources.

Globally, the UK, New Zealand and Australia are forerunners in adopting newforms of decentralized local urban governance. CSOs are regarded as important participants in these emerging forms of urban governance such as via partnerships (Goetz and Gaventa 2001; Cornwall 2002; Crook and Sverrisson 2001; Houtzager et al. 2003). The importance of CSOs in governance processes is captured in this sentence where the World Bank has argued that in most societies, democratic or not, citizens seek representation of their interests beyond the ballot as taxpayers, as users of public services, and increasingly as clients or members of NGOs and voluntary associations. Against a backdrop of competing social demands, rising expectations and variable government performance, these expressions of voice and participation are on the rise (World Bank 1997: 113).

In contemporary India, there are many examples of such decentralised, participatory experiments that claim to have brought the citizen and government closer and more responsive. Examples include the Bhagidari initiative in Delhi, PROOF in Bangalore, Advanced Locality Management (ALM) groups in Mumbai. In the zeal towards bringing efficiency in governance the goals of electoral representation have often been compromised. Elite citizens groups like the Bangalore Action Task Force (BATF) in Bangalore and Citizens Roundtable in Mumbai also have implications on the questions of inclusion and accountability (for details see Singh and Parthasarathy 2010). These points are explained with the help of the example of the Bhagidari partnership.

The Government of Delhi initiated the Bhagidari (meaning citizen-government partnership) in 2000 between government agencies in the National Capital Territory (NCT) like the Jal (water) Board and the Vidyut (electricity) Board and neighbourhood associations (RWAs, senior citizens associations, market traders associations) for the management of local affairs to develop some kind of citizen-government interface. It was envisaged that by consulting these organisations on specific schemes, by promoting their interaction with municipal officials concerning the maintenance of civic infrastructure, and by entitling them to a role of supervision of local public works the local government would become more responsive to the needs and views of the people. The Bhagidari scheme ensured its own visibility through regular announcements in the press. Harriss (2005) argues that Bhagidari Scheme is intended to develop joint ownership by citizens and the government involving partnerships between Residents’ Welfare Associations and Market Traders Associations and the Delhi Government whereby Residents’ Welfare Associations have gained prominence (found, however, mainly in planned colonies and other higher income areas, and not in slum clusters and other poor parts of the city) and are involved in such tasks as securing payment and collection of water bills, electricity meter reading, house tax collection, the supervision of sanitation services, and the maintenance of community parks and community halls. He however suspects whether ―the scheme really does represent partnership or whether it rather involves the off-loading of tasks by city government onto local associations (ibid: 1043).

In an assessment of the partnership, Lama Rewal (2007) pointed out that the Bhagidari played a significant role for RWAs to gain more visibility. Through this initiative, RWAs popularised issues like rainwater harvesting, problems of civic administration like SWM, pollution, house tax disputes, and redressal. A system of awards was also instituted for RWAs for achievements in the above. However, the Bhagidari could not ―cover the slum areas of Delhi and it also failed to get the active participation of municipal councillors (ibid: 36-37). Sivaramakrishnan (2006) notes that the Bhagidari initiative was a product of a political necessity of the Chief Minister of the NCT of Delhi to maintain a balance with a host of legislators like members of Parliament and Legislative Assembly and municipal councillors, the need to reach out to the public and also establish an independent base.

In the processes of forming partnerships with the executive wing of the municipal authority, ALMs in Mumbai have bypassed elected representatives who have not seemed to work for their interests, and emerged as informal parallel structures of decentralised governance. Their work and attendant discourses have implications for the goals of decentralisation as envisaged in the 74th CAA. ALMs have claimed that the municipal councillors are apathetic to citizens’ needs. ALMs have hardly interacted with elected representatives and, instead, they have relied heavily on their interactions with the ward officers of the municipal authority. In the process of partnering with the executive wing, these organisations have bypassed elected representatives and undermined their legitimacy. Administrative efficiency preceding electoral accountability defeats the goals of strengthening local self-governance as envisaged in the 74th CAA, as one of the goals of the amendment as clearly been to vest more power with the elected representatives/municipal councillors, who represent the people of the locality.

6. Rights Based Approaches

Rights based approaches (RBA) have been deployed by various groups often reflecting conflicts and contestations in a given context, say to stake claim over space or resources. RBA has been articulated from the vantage point of groups and associations fighting for the rights of certain sections of the people. Elite NGOs and associations often interpret rights as those of individuals within the strict definitions of ownership. From this understanding naturally a very exclusive articulation of the rights based approach would follow. Similarly, terms like “residents”, “citizens”, “law-abiding taxpaying citizen”, “encroachers”, “illegal habitants”, and “nuisance” are frequently used in the narrative of RWAs and citizens’ associations. The discourse on rights is articulated in a particularised manner and is informed by class situations. Thus, while elite and middle class associations fight and advocate for cleanliness and beautification of their neighbourhoods, the rights of the slum dwellers living in adjacent slums for a clean environment, are out rightly ignored in this discourse.

In some recent judgments, the judiciary has also interpreted rights in favour of RWAs rather than slum communities. In his study on Delhi, Asher Ghertner (2008) tracked the emergence of the “nuisance discourse” in the early 2000s and how it has recalibrated the factors used to determine a settlement’s legality and re-problematised slums as nuisance. Whereas the decision to raze a slum was previously the almost exclusive domain of Delhi’s various land owing agencies – in particular the Delhi Development Authority – these have little say in determining the legal and political status of such settlements. Instead, the primary avenue by which slums are demolished today begins when a RWA files a writ petition for the removal of a neighbouring slum, proceeds through the court’s granting of the RWA’s writ, and ends when the land owing agency abides by the court’s direction. Asher, in particular, refers to the Pitampura judgement issued by the High Court of Delhi in September 2002. It dealt with improving environment in a neighbourhood based on petitions filed by city based RWAs. The judgment made no reference to Section 133 Code of Criminal Procedure, 1973, the key statute dealing with public nuisance and cleanliness. There is no mention (implicit or explicit) of any of the statutes governing displacement: not the Public Premises Act 1971 or the Land Acquisition Act 1894. Laws dealing with cleanliness of urban space that are distinct from those for displacing a population were merged, the judgment also divided the pubic into normal residents of formal colonies owning private property and slum dwellers occupying public land and the regulatory arrangements that supported them were at odds. The author added that it was preposterous to say that any settlement was illegal because it was not clean enough. Therefore, the judgment stated that because the former category owned their property, came first and suffered from the “nuisance” of the latter’s presence, their Right to life under Article 21 of the Constitution should triumph the latter’s. This decision reversed the previous interpretation of Article 21 regarding slum dwellers, established 20 years ago in the Olga Tellis and the Bombay Municipal Corporation that established the right of the working poor to occupy public land to fulfil their livelihood.

In contrast to this narrow interpretation of RBA by middle class and elite associations, a simultaneous broader interpretation of RBA is also employed to advocate policy changes and include those insurgent citizens in the government’s plans and programmes who may not have ownership rights but do possess user rights to the county’s resources. Associations of this variety include several grassroots organizations and community groups working for varied issues and rights of marginalised groups like fishermen, slum and pavement dwellers, street children, contract labourers, street vendors, women rag pickers and the like. The RBA as articulated by these groups and organizations focus more on group rights like right to development, right to the city rather than on individual rights like right to property and legal ownership. After long years of struggle and increasing advocacy by NGOs like the Self Employed Women’s Association (SEWA), NASVI, and Manushi, activists and civil society actors who were involved in the long struggle for rights of street vendors the international declaration of hawker rights in the Bellagio declaration, the government of India came up with the National Policy on Street Vendors in 2004 which presents street vending as a traditional Indian occupation that is beneficial and essential to society. It should protect street vending as a major poverty alleviation initiative.

7. In Brief

In this module, we have discussed the complex relationship between social movements and governmentality. In the broadest sense, social movements are essentially movements around issues and causes that require action of the state apparatus or simply, government agencies. All social movements revolve around issues that require policy or legislative action and this happens only at the level of government. The purpose of any social movement is to create enough pressure on the government to bring about the desired change. Government policies and programmes have in turn become sensitive to the notions of rights and inclusivity as responses to global discourses and social movements at the national and local level. Many of the laws that have been recently legislated in India like Right to Information, Right to Food, Right to Education, and the Land Acquisition Rehabilitation and Resettlement Act, are actually the results of the successes of many social movements.

However, the relationship between the four aspects of governmentality, namely legal pluralism, decentralization, rights based approaches and forum shopping are far from straightforward. Legal pluralism operates through transnationalization of law and the practice of customary, personal laws and informal systems of law and governance. These often conflict or render the sovereign laws and the democratic institutions of the country null and void. Decentralization is a cherished goal of global institutions, national governments and forerunners of social movements. Yet the way decentralization is actually played out varies a lot and may a times defeat the constitutional goals of strengthening local democratic institutions and empowering elected representatives. So is the case with RBA that is always under debate and conflict depending on the vantage point from where the RBA is addressed. Thus, groups advocating individual rights will always confront those who advocate group rights while both simultaneously claiming to support the idea of RBA. Forum shopping shows the complexities created by activists and CSOs that approach global institutions to intervene and redress domestic grievances when the legal frameworks of the sovereign state does not seem to work to solve them. This also has its own set of perils and leaves social movements at the mercy of those very institutions that they have opposed from the beginning.

Notes:

1. Discussions concerned with contemporary civil society increasingly define it in normative terms as “a set ofinstitutions that perform the functions of inculcating morals and values that facilitate social cohesion (Etzioni 1995, 1996) or that enable individuals to act as “good” or “active‟ citizens aware of their civic duties. Almond and Verba (1965), de Tocqueville (1835), Hirst (1994), Keane (1998), Putnam (2001) and Putnam et al. (1993) argue, to varying degrees, that voluntary association within civil society is the seedbed for the civic virtue sonecessary for a healthy democratic society” (Hodgson 2004: 141).
2. The term ‘glocalisation’ first appeared in a late 1980s publication of the Harvard Business review. Sociologist Roland Robertsonlater popularized the term.