Shifting Fields of Legitimacy: Globalization and Resistance in a Historical Perspective

D.Parthasarathy

IIT Bombay

first draft of an article published in Christoph Eberhard & Nidhi Gupta (eds) , Legal Pluralism in India, Special Issue of the Indian Socio-Legal Journal,

Vol. XXXI, 148 p (121-130)

Introduction

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). The emphasis has been on reduced sovereignties for states, and increased power in the hands of transnational bodies in influencing state level law making, in a globalizing world (Randeria). This paper proposes to study the obverse side of this process by focusing on the implications of forum shopping by rights groups, NGOS, and people’s movements against development policies and projects. These implications refer to issues of legitimacy for state level democratic institutions, and ethical / political consequences of bypassing democratic institutions for non-democratic external agents. These are compared with important debates that took place during nationalist resistance movements against colonialism where nationalist leaders questioned the legitimacy of the colonial state to govern and enact laws for social change.

The increasing presence and role of multinational corporations and multilateral financial institutions in the economies of developing countries have led to a diverse range of protests about their perceived consequences in terms of 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). 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. Frequently the appeal to World bank and other multilateral agencies have taken the form of an appeal which asks such agencies to accept responsibilities as funding agencies despite the fact that the initiators for funding and the implementing agencies are ultimately government and public corporations, who have the actual responsibility of ensuring justice and adherence to guidelines[1].

From a legal perspective, such actions seem to reduce the legitimacy of and public support for state and judicial institutions. However it is not clear whether activists and NGOs have given a thought to the long term consequences for the polity, emerging out of reduced legitimacy of democratically elected and constitutionally sanctioned bodies, and the success gained by appealing to multinational and multilateral agencies for justice, when these are also accused of infringing upon the sovereignty of nations and of bringing about undesirable social economic consequences through reforms such as the structural adjustment programmes and privatization. What is interesting to note is that historically, while the refusal to accept ‘imperial’ or ‘colonial’ intervention in the case of ‘desirable’ social reform was a significant trend during the national movement, there have also been periods when groups have sought colonial intervention, perceiving colonial rule and legal-juridical systems as less arbitrary than systems deriving from the indigenous social order[2]. Based on case studies from India since the late eighteenth century upto the present, this paper seeks to generate a debate on the actual and potential conflicts and contradictions arising from external interventions in the legal and judicial sphere of a nation / nation-state.

What kind of epistemological and ontological lens do we use to evaluate and assess indigenous responses to external (foreign, transnational) interventions in the legal and judicial sphere? Do we perceive rejection of local authority systems and appeals and recourse to legal-juridical systems established by “outsiders” as pragmatic decisions for achieving group objectives? Are these simply an extension of forum shopping observed in social fields with plural legal systems and laws? What are the role of values and ideologies including nationalist ideologies in determining the position towards external intervention in the field of law? What kind of contradictions emerge when globalization of social movements propelled by a particular kind of modernist thinking clashes with economic globalization? What are the implications of support for economic globalization given by those with a belief in the positive aspects of modernization that accompanies this process? Under what conditions does national sovereignty get valorized over the desire for ‘progressive’ social change and vice versa”? This paper seeks to provide some answers and outlines the approach to be taken in answering such questions.

Colonial India: Nationalism, social reform, and law

The burgeoning literature on law in colonial India focuses mainly on nineteenth and twentieth century and with notable exceptions, ignores the period under the direct rule of the English East India Company. In both periods, studies have mainly dealt with property (land) rights, agrarian relations and personal laws, but have rarely studied issues relating to commercial and economic activities and disputes. Under the East India Company emerging relations between British commercial agents and primary producers in India with and without intermediaries produced a set of social and economic relations and new forms of disputes and conflicts which did not fall under the jurisdiction of existing, indigenous authorities and bodies. The relations and the disputes themselves were such as to elide dispute settlement through existing channels and mechanisms. In this context, new legal and juridical principles and institutions were introduced by the colonial rulers, and studies indicate that across the world, colonial populations were quick to adapt to and use them (Lex Heerma van Voss, 2001). In an interesting and important study of handloom weavers attempting to maintain their economic status in the face of the rise to dominance of the English East India Company, Swarnaltha (2001) traces the increasing use of petitions as a method of grievance redressal by the weavers. Recognizing perhaps the advantages of “collective action for grievance redressal rooted in legal and judicial principles, rather than being subjected to the whims of feudal patrons”, weavers in eighteenth and early nineteenth century Andhra in South India mastered the art of petitioning. Both the “structural weakness” of the weavers in the face of political and economic domination by the Company, as well as the new markets and economic opportunities opened by Company trade perhaps contributed to the adoption of legal procedures for dispute settlement rather than other violent and non-violent methods including desertion and flight which had been tried earlier and found wanting in producing desired results.

What is interesting is that grievances resulted not only from the behaviour of Company officials but also native intermediaries whose strong networks, ability to bribe and influence officials, and possession of physical assets and muscle power led to economic exploitation of the weavers. Therefore the recourse to the new legal system cannot be simply seen in terms of ‘proto-nationalism’ but more in terms of ‘forum shopping’ under conditions of exploitation and oppression by local elites and the opening up of new legal / judicial avenues. More significantly perhaps, the new legal system and judicial principles introduced also generated new thinking and ways of articulation among the weavers regarding conceptions of justice and rights. A perusal of the petitions of the weavers to various appellate bodies of the Company indicate an awareness of what we now call ‘human rights’ issues such as “the right to subsistence, freedom from physical abuse, and the right to be heard” (Swarnalatha, 2001), all of which were as much important aspects of the grievances sought to be redressed as were more common economic complaints.

In an age when globalization of different kind was affecting the economic conditions and activities in a ‘peripheral’ region, it is interesting to note echoes of some of the current debates surrounding the implications of globalization for marginalized groups in contemporary India. Dalit groups in India and Gail Omvedt as a spokesperson for them have emphasized the emancipatory potential of the modernization process accompanying globalization and economic liberalization (Omvedt, 2003, and Jogdand, 2000). Anti-globalization activists and scholars have tended to put the stress on relations of dependency, increased economic exploitation, and job losses among other reasons for their position. Earlier debates on the Orientalist view of despotic and arbitrary rulership stated to be common in British India centred around the justifications provided by British colonialism to bring in a rule of law as one of its civilizing missions. Without going into the merits of these debates, the above case reveals that the more pragmatic approach reflected in the weavers’ case and in the position of the Dalit movement in India deserves greater scrutiny rather than being dismissed as an ideological position.

By the mid nineteenth century when political control of the Indian territories had shifted into the hands of the British government, an intellectual middle class had emerged in parts of India which began to involve itself increasingly in social reform movements around issues such as sati, women’s education, ‘western’ education for Indian, child marriage and widow remarriage. Raja Rammohun Roy in Bengal and others began to petition the British government to bring about legal and institutional changes to reform mainly Hindu (but also Muslim) society. While certain ambivalences towards the alien rulers can be found in the work of some of these reformers, by and large a picture emerges of their perception and understanding of a ‘progressive’ role for colonial rulers (Nair, 2000). This was naturally at odds and contradicted with more nationalist positions of leaders like Tilak who rejected a progressive or reformist role for the British state and whose legitimacy to rule India and create laws for its people were questioned. This contradiction can in a way be conceived as a clash of values and the relative valorization of freedom and sovereignty vis a vis the imperative of social reform. Such tensions were to rise again later in the nationalist movement most notably in the work of Gandhi who attempted an ingenious if idealistic fusion of the two contradictory tendencies and pressures in the nationalist movement. In many ways this debate in the second half of the nineteenth century which spilled over into the twentieth century prefigures and introduces in a serious way the question of the legitimacy of movements for change, equity and justice. However it is a matter of no little surprise that similar concerns seem to be totally lacking in current debates over globalization and its impacts wherein the very forces of globalization and privatization are often petitioned for grievance redressal, bypassing elected and constitutional bodies including the judiciary.

Another way in which the above contradiction can be conceived of is to deemphasize the values associated with particular positions and instead look upon such positions as pragmatic ways of using a plural legal system to protect entrenched and emerging parochial interests especially the interests of the upper castes and of patriarchy. While Tilak and other nationalists of his ilk rejected colonial interventionism in social reform through legal means they at the same took recourse to colonial law in resisting and restraining rebellious and reformist tendencies reflected most famously in their position on conjugal rights in the Rakmabai case (Nair, op.cit.). Perceiving a serious threat to entrenched patriarchal interests in this case, nationalists wished to invoke criminal law to punish and ensure compliance with traditional laws regarding restitution of conjugal rights for the husband of Rakmabai. It would be a mistake however to look upon Tilak’s position merely as a pragmatic use of law to protect entrenched interests, especially in view of subsequent mobilization of the depressed classes led by Dr.B.R.Ambedkar who overturned Tilak’s position in differing substantially with the Indian National Congress and pressing for important concessions and legal and political reforms from the British rulers in India. With the spread of education and the rise of a middle class, as well as the emergence of women’s and dalit movements from the late nineteenth century, the question of social reform through legal means could no longer be put off. On the other hand, as Partha Chatterjee has shown British imperatives for ‘civilizing’ India led to greater revivalism with particular implications for women’s emancipation. Women became the symbol of and the site where India’s glory and heritage were to be maintained, and so were relegated to the private sphere of the household and the family (Chatterjee, 1989). Legal changes reflected this during the colonial period and later. With the national movement becoming a mass movement in the early decades of the twentieth century both freedom and social reform became important values to be fought for and hence despite the pragmatic positions of several political leaders pre- and post-independence, the role of values and ideologies in determining the position of movements, NGOs, and activists towards external intervention in the field of law and social change must be recognized and acknowledged. This is particularly essential in post-colonial societies becoming globally integrated because under processes of neo-imperialism, there is no direct political control, and hence direct interventions for socio-political change are harder to observe. It also means that many NGOs and activists often do not perceive value and ideological questions as a problem to be tackled. They are not even aware of the nature of the problem, and therefore adopt a contradictory stance of rejecting globalization, even as they seek the support of global forces in their struggles for justice and equity.

Development, globalization and issues of legitimacy in contemporary India

The transnationalization of law resulting from globalization has become a subject of serious study, and despite several extremely interesting studies coming out in the last few years, the exact contours of this process, and the details are yet to be worked out completely. Development aid from multilateral agencies has brought in ‘project law’ in a major way in many developing countries and economies in transition. By introducing a new set of laws, these have supplemented or contradicted with existing legal regimes in selected areas, and even initiated new legal mechanisms where they were not present in areas such as resettlement and rehabilitation. Structural adjustment programmes financed by multilateral financial institutions have supported legal reforms and changes in laws with positive and adverse consequences for the people affected. Global trade and its supporting institutions such as the WTO and IPR treaties have generated disputes between entities from different countries. Randeria reflects on the important implications of the process of trasnationalization of law with specific reference to disputes around biopiracy, patent disputes, and struggles to secure rights by those displaced by large infrastructure projects financed by the World Bank (Randeria, 2001).

In India over the last couple of decades a large number of infrastructure projects have been initiated with loans from multilateral financial institutions such as the World Bank and Asian Development Bank. Project affected people and activists speaking on their behalf have struggled to secure rights for these groups through various methods include legal means. However the intransigence of state institutions in ensuring adequate rehabilitation and resettlement has meant that such groups have often approached courts for justice. Treating such issues as technical matters, and using a logic of the “greater common good”[3] courts have done little to alleviate the suffering of the displaced populations. The last resort of these groups such as the Narmada Bachao Andolan have therefore been Project Law and appeals to the funding agencies. Thus the NBA has successfully ensured the exit of the World Bank from the Sardar Sarovar Project. However this has meant greater powers and responsibility in the hands of various state governments in India, and hence, unable to ensure compliance of these governments to norms regarding resettlement and rehabilitation, the NBA has launched frequent appeals to the World Bank to put pressure on the concerned state governments in India to met their obligations to the affected people and ensure compliance with the laws regarding environment and resettlement of project displaced people. Despite the fact that the World Bank has withdrawn from the project, activists and NGOs have urged the Bank to “suspend all further disbursements or approvals of new loans” to the concerned states until they meet their obligations[4]. Clearly then notwithstanding the legitimacy of their complaints, appeals to external agencies to intervene and put pressure on democratically and constitutionally sanctioned bodies constitutes a transgression of sovereignty. Such actions question and make lifeless the legitimacy of sovereign state institutions. To what extent is this acceptable in a democratic society and what are its consequences in terms of diminishing the legitimacy and power of state bodies? Do such actions become more acceptable in a clear case of abuse of human rights where the state is seen as a supporter of such abuses? When state action does not affect people or does not affect sovereign citizens outside its boundaries, is action by an external agent justified? Will such actions be counterproductive in terms of enabling a state to mobilize support for its unjust actions citing infringement of sovereignty as an issue? Especially in a democratic society, what other options are available to put pressure on democratically elected and constitutionally approved bodies to render justice? Part of the problem seems to emerge from the nature of the new social movements which are by definition apolitical, and are therefore unable to mobilize public support for their positions, unable to politicize issues of rehabilitation, displacement, uneven benefits from economic reforms and other such issues.

It is not very clear that the NBA and other organizations appealing to the World Bank are aware of or have addressed these questions. In fact the NBA actions have now become a model for other movements. The Chotanagpur Adivasi Sewa Samiti supported by a large number of individuals and NGOs from around the world has appealed to the World Bank “to face up to its moral and legal responsibilities to the people affected by Bank-backed intervention” in Coal India’s expansion projects relating to open cast mines in the Chotanagpur area in Central India[5]. Like in the case of the Sardar Sarovar Project, here too grievances pertain to environmental and social consequences of the mining projects. The petitioners in this case have even asked for Bank support and monitoring of an alternate people’s plan to deal with the problems induced by the project, with “support” and “intervention” by the Government of India. The subordinate role assigned to government agencies based on past experience of their role is perhaps understandable but their long term consequences, and the outcome of depending on an external agency rather a democratically elected one is not thought of by the NGOs concerned.

If the above represent cases where activists and NGOs are still at the stage of appealing to external agencies for support, there is at least one recent case where, the intervention of the World Bank and its Project Laws have made a judgement of the Bombay High Court infructuous. The High Court had held that squatters near railway tracks to be displaced under the Mumbai Urban Transportation Project – II, were not eligible for resettlement and rehabilitation (R & R), and therefore the railways could proceed to evict them and proceed with the project. However since the World Bank had refused to release the funds unless R & R plans were effectively implemented, the judgement couldn’t be implemented. (This is a case where community based organizations worked out R & R plans and successfully resettled the squatters and hence represents an alternative to judicial and legal settlement of disputes. However the World Bank’s stand afforded the time necessary to carry out an effective R & R). Thus in all the above cases, very clearly Project Laws and external agencies increase options for forum shopping and expand the choice of appellate authorities for dispute resolution, by providing alternate criteria for justice and the power to implement decisions to non-state actors.

This is not however to paint a picture of the positive role of external agencies such as the World Bank. Anti-globalization protesters have frequently targeted the World Bank for its lending programs and structural adjustment programs and its consequences for the poor developing countries. However few have challenged these in a court of law. Nor have there been challenges to the legal reforms and changes brought about under the overall aegis of the economic liberalization process. An exception is reflected in the number of petitions filed to challenge power sector reforms in the state of Andhra Pradesh effected through the Andhra Pradesh Electricity Reforms Act. In this case the High Court of Andhra Pradesh rather than question external interference in the law making process accepted it, perhaps guided and influenced by the current discourse in favour of privatization and economic liberalization[6]. The petitioners specifically sought to nullify the Act by citing the pressure that the World Bank sought to impose on the State government to reform various public sector undertakings in the state through legal reforms, in lieu of loans advanced by the Bank to the state. Specifically a contention of the petitioners was that the “Act is a piece of colourable legislation enacted by the Andhra Pradesh State Legislature at the dictation of and in accordance with the terms imposed by the World Bank which is an extra-territorial body, and thus the Andhra Pradesh State Legislature has surrendered its legislative sovereignty in favour of the World Bank and, therefore, the Reform Act is invalid and unconstitutional”. The issue of sovereignty was thus a central issue in this case. The Honourable Judge who delivered the judgement, while citing lack of evidence to support the contention of the World Bank influencing a legislation, also went to state that even if the World Bank were to put pressure, it would be well within its rights. The Court stated “If the World Bank while advancing huge sums of money to the A.P.State Government prescribes certain terms and conditions for advancing such loans, no reasonable man (sic) can find any sinister design in the prescription of such terms and conditions”. Thus the principle of external influence on sovereign matters is firmly accepted by the court if it was tied to benefits given (in the form of loans).

In several states in India over the last decade, labour laws have been considerably ‘reformed’ often to the extent of denying fundamental rights and ignoring principles of justice. This has been particularly so in export oriented sectors and the logic of global competitiveness, economic efficiency, and economic growth have been used to justify such legal changes (Parthasarathy, 2003).

The surprising consensus for pragmatic reasons among the judiciary and NGOs / activists over external intervention seems to discount values and ideologies in accepting such influences on the law making and justice seeking processes. However while the judicial discourse seems to be keeping pace with economic changes, the position and almost complete lack of disquietude among social movements and NGOS over appeals to external institutions to intervene and even enforce decisions on sovereign, democratic bodies, while at the same time critiquing globalization and privatization as undemocratic processes, needs explanation. As indicated earlier, perhaps the nature of the new social movements and NGOs, related to their apolitical stances, and a willingness to try out new methods for getting their complaints addressed and problems solved might provide a partial explanation. Located firmly within a postmodern discourse, notions of nation-state might seem a bit outdated to them, and therefore place greater faith in notions of global citizenship. This needs further research, but a partial confirmation for this hypothesis emerges from recent controversies surrounding the World Social Forum which was denounced by many organizations on the left of the political spectrum for not bringing imperialism to the centre stage, and who therefore organized a parallel meeting as an alternative to the World Social Forum[7]. It is interesting to note that the petitioners against the Andhra Pradesh Electricity Reform Act included people and groups known for a more political and left of centre position on various issues which perhaps explains their main contention in court of challenging a law which was ‘coloured’ by World Bank pressures. It may be mentioned that the state of Andhra Pradesh witnessed large scale protests by political parties seeking to derail the reform process in the power sector.

The nature of political processes, social mobilization, and the agents who represent the problems of the people seem therefore to influence notions of legitimacy in relating to and dealing with plural legal systems emerging from colonial and post-colonial neo-imperial interactions. But is reduced legitimacy for democratic institutions arising from externally imposed laws and legal changes really a problem? Is it even legitimate to label emerging legal systems as a part of economic liberalization and globalization as legal pluralism? These questions are addressed in the concluding section of this paper.

Some conclusions

The field of law as a semi-autonomous social field has been continuously transformed by colonial and neo-colonial pressures in India over the last three centuries. From the East India Company to British Colonial Government and International Treaties and Multilateral Institutions, the legal sphere in India has been subject to influences sometimes modernizing legal systems, at other times propping up existing systems supportive of entrenched patriarchal or elite upper caste interests. Different groups have adopted different approaches to external influences in resisting or using these influences for themselves and their publics. In some cases ‘modernization’ of law in certain spheres in the colonial period resulted in fundamental epistemological and philosophical differences between one sphere and others rooted in patriarchal or religious foundations. But they were all part of a new code of law and legal system administered and adjudicated through the same courts. In other cases, for instance the handloom weavers under the East India Company, Company law opened up new avenues, and a new discourse which was part of a new set of opportunities and economic relations (which were also relations of dominance). In the post-colonial period, neo-colonial pressures led to changes being incorporated in existing laws as part of structural adjustment programmes, but in the case of projects funded with development aid, Project Laws emerged as a parallel and alternative system of laws and adjudication. Pragmatism and self interest played a crucial role in influencing responses to these changes, but ideologies of nationalism and resistance to globalization were clearly important as well.

Law as a social field during this period expanded to include new groups, it entered new areas of social relations even as older areas were recast in the light of changes occurring under colonial rule, new institutions were set up, new juridical principles were established and took root, and some sub-fields of the legal system got modernized. External influences resulted in legal pluralism on some occasions and on others were subsumed under existing laws and legal systems. Sometimes such influences reinforced traditional structures such as patriarchy or provided support for old and / or invented laws and ‘traditions’ which reinforced the dominant social order. All these led to continuous shifts in the field of legitimacy – which laws are acceptable, for what reasons, who or which institutions would administer laws, who has the right to frame laws, and who are to be approached for grievance redressal. Shifts in legitimacy indicate shifts in power relations and shape responses of different groups to laws and legal systems. In this process ideologies, values, shared interests, social relations – all are grist for the mill.

In the contemporary period, while issues of reduced legitimacy for democratic institutions and the issue of sovereignty are yet marginal in public debates, it is important to note that an influential discourse is emerging led by dalit activists and scholars and their spokespersons who perceive emancipatory potential in processes of globalization and economic liberalization for dalits, women, and other socially marginalized groups. For them issues of sovereignty and the legitimacy of external groups to impose legal and institutional changes is not an issue at least in the short run. While this would be largely true also of the Ambedkarite movement in the pre-and post independence period, it may not be appropriate to assume that Dr.Ambedkar himself was unconcerned with issues of freedom and sovereignty. It is evident from his writings that while he was aware of the potential of constitutional and legal changes in preparing the ground for dalit and women’s emancipation, political action was equally crucial for the process to take off. The danger of pragmatic and non-political approaches lies precisely in more power devolving to institutions and actors who do not have the democratic authority to make laws and implement them. “Good Governance” approaches advocated as part of economic liberalization packages fall into the trap or deliberately undermine genuinely democratic structures and instead opt for participative approaches and institutional strategies which bypass elected democratic bodies (Parthasarathy, 2002). Given unequal access to and ability to use and manipulate new institutional structures and judicial agencies, political structures play an important role in ensuring greater participation through techniques which do not exclude.

At the same time, the dalit movement perceives external institutions and forces of globalization as being influenced by forces of rationality, science, and the market, and therefore offer an alternative to value and tradition based society and economy (Omvedt, op.cit., and Nanda, 1999). They believe in the inherent power of a liberal, market economy in breaking down semi-feudal social structures, and are suspicious of participatory initiatives which can concentrate more power in the hands of local elites. However the support for and the positive role attributed to external intervention in political, economic and legal matters might have all the disadvantages of desertion, flight, and other “weapons of the weak”. Support for externally enforced measures of change will leave the internal structures intact, and in the hands of entrenched powerful interests. Lack of interest in using indigenous legal systems may delegitimize one’s movement, and will leave a vacuum in political and legal debates which may be filled by interest groups which may be unable or unwilling to represent the interests of the marginalized. The judiciary itself may get marginalized or become cynical of its role owing to lack of effective power in having its decisions implemented. People may lose faith in democratic processes and instead opt for extra-legal methods in getting their problems resolved. Incidences of violence and small and large scale conflicts across the country in recent years are already pointing to the consequences of people losing faith in democratic processes and the ability of the ‘system’ to get their grievances redressed. In addition alternate systems of governance are emerging put together by lumpen political elements, the mafia, and even NGOs, in which people put greater faith in the hope of effective and efficient justice (Eckert, 2003). Meanwhile institutions and mechanisms of governance including laws have shifted from being methods of social regulation and control, to tools for profit making and economic efficiency.

This shift can be seen perhaps most clearly in the current trend toward the commodification of law and ethics in developing countries such as India. The term commodification is used to refer to the fact that laws and ethics have emerged as objects of exchange and trade. Increasingly, laws and ethical norms are being judged on the basis of their potential to generate profits. Like all commodities, “good governance” and its baggage of mechanisms - including legal rules, ethical standards, and enforcement agencies - are now being “fetishized”, in a Marxian sense, to appear that they have intrinsic value while actually concealing the power relationships involved in their production and distribution. Thus despite the ‘modernization’ aspects of legal and institutional changes brought about by economic liberalization and globalization, by being tied to very pragmatic objectives such as profits, cheap labour, efficiency and so on, external interventions in the legal sphere, while offering increased choice for forum shopping and making the legal system less arbitrary, at the same time downplay values and ideologies which are significant in politicizing issues of equity and justice.

The consensus on the acceptability and non-problematic nature of external influences on law making and grievance redressal is an amazing one. For the judiciary and law makers in India who have internalized the discourse of economic liberalization, transnational and multilateral influences play a functional role in law making in improving the efficiency of economic activities. Social movements and NGOs opposed to globalization perceive Project Law and multilateral agencies in instrumental terms for winning battles against their own intransigent governments. And finally marginalized groups such as the dalits see ‘western’ capitalist influences in positive terms as modernizing factors, as being ‘scientific’, as liberal forces, and therefore welcome such influences in the law making process since they can be used as alternate sources of power and justice. However a historical perspective presented in this paper reveals that forces of globalization and capitalism can also use law as instruments in their own attempts to achieve dominance, and that in the absence of a political movement, no tangible result is achieved for subaltern groups from an instrumental and pragmatic view of legal pluralism resulting from transnationalization of law.

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[1] This was the case for instance of the Narmda Bachao Andolan fighting against the massive Sardar Sarovar Project.

[2] The movements of dalits (ex-untouchables or depressed classes as they were called under British rule) while by no means opposed to freedom from colonial rule, believed that legal reforms instituted under British colonialism would play a significant role in changing their status.

[3] A term made famous by the Writer and activist Arundhati Roy.

[4] Appeal to the World Bank through a letter date Novmber 10 2000.

[5] Letter sent by Madhu Kohli, an activist on behalf of the affected people in the region to the World Bank on April 25 1997.

[6] Judgment of the High Court of Judicature, Andhra Pradesh, Hyderabad on the Tariff Order 2000-2001.

[7] The alternative met under the title of “Mumbai Resistance”.