(This essay originally appeared in the November 2004 issue of American Lawyer.)
Passage To India
For a developing country, India has an advanced legal system and a surging economy. On a practical level, it still must deal with rampant corruption, a creaking judiciary, and astonishing diversity.
By Peter H. Schuck, Simeon E. Baldwin Professor of Law
In recent years, China has been the leading new market for legal services in a rapidly globalizing world ["China's Legal Tea Leaves," November 2002]. Soon, however, that distinction may go to India. It is already the world's largest democracy and, with a population of 1.1 billion, projected eventually to be the world's largest country. China enjoyed a big head start; foreign direct investment there dwarfs that in India, and China conducts more trade with us. But this could quickly change as Indian entrepreneurship, already greater than that in China, starts attracting more foreign capital and as India's advantages, including English and the rule of law, loom larger.
India now bars foreign lawyers from opening offices there, but the gates may open as the World Trade Organization and other nations pressure India to relax its trade barriers for professional services. Once the gold rush to India starts, American firms planning offices there will need to know something about the exotic society that awaits them -- and the advanced, if imperfect, legal system.
Actually, many societies await them there. India is a nation of contrasts and incongruities. The flat desert vastness of Rajasthan and the soaring cathedral-like spires of the snowcapped Himalayas. The arid plains of the Deccan and the Iowa-like fertility of the Punjab. The axle-to-axle, cacophonous, frenetic congestion of Old Delhi's lanes and the verdant serenity of New Delhi's embassy row. The Stone Age workshops in Calcutta's slums and the high-tech campuses of Bangalore. The tropical, spacious backwaters of Kerala in the south and the grim, teeming urban jungles of Uttar Pradesh and Bihar in the north. The intense spirituality of pilgrim destinations like Dharamsala, Rishikesh, and Varanasi, and the equally fervent materialism of Mumbai business and Bollywood. Indeed, many streets look like a history of urban transport compressed into a single bursting diorama: Human-drawn sledges, ox-drawn carts, rickshaws powered by human legs or small engines, buses, trucks, and cars, and of course the endless parade of animals--cows, pigs, goats, dogs, and sometimes monkeys, camels, and elephants--all move at their own pace through the wholly unregulated traffic. Only inches away (there are few sidewalks), countless people are sleeping, eating, conversing, doing business, and performing ablutions. The words "bedlam" and "chaos" do not quite capture the sheer energy, vitality, and congestion of this ubiquitous scene. Yet somehow the traffic actually moves. While there are frequent accidents and near misses, road rage seems far less common than on the comparatively empty and well-regulated American roads.
India is probably the most culturally diverse country on earth. India's constitution of 1950 identifies 15 official languages (additional tongues may soon be added), and hundreds of local and regional tongues are spoken daily. English, the language of government and higher education, is taught at Indian schools, but many students do not stay there long enough to master it. Even fluent English speakers are often unintelligible to the American ear, as frustrated callers to Ban galore-based help lines know. George Bernard Shaw's quip about America and England--"two countries separated by the same language"--applies even more to India.
Linguistic diversity intersects with--and reinforces--diversities of religion, region, and caste to create a bewilderingly complex, fragmented political system driven by scores of disciplined parties. (It is illegal for Indian legislators to defect from their party leaders.) India has the world's largest Hindu, Sikh, and Jain populations, and the secondlargest Muslim population, after Indonesia. It also has large Buddhist, Parsi, and Christian communities. Even the 85 percent Hindu majority is divided by deity-of-choice (Shiva and Vishnu predominate) and by other fissures. Profound regional divisions exist. In the north, Aryan culture and languages, centuries-long domination by Muslim invaders, and caste-based parties and ideologies have bred massive poverty and corruption. The south speaks Dravidian languages, receives large foreign remittances and cultural ideas from its millions of migrants working abroad, boasts high-tech areas, inhabits a tropical, seacoast environment, and in some areas has matrilineal family and property arrangements. And although the law long ago abolished the despised status of "untouchability," caste remains highly salient. Indians can identify thousands of subcastes through surname, occupation, and reputation. This is particularly true in the rural areas, where 70 percent of Indians live. Caste-based parties demand higher constitutionally required quotas in legislatures, colleges, and the civil service and would extend these quotas to private firms with at least ten employees.
India's Moghul and British conquerors, while often tolerating these diversities, also cynically exploited them for imperial ends. Their well-honed divide-and-rule tactics culminated in the 1947 partition that carved Pakistan out of the British Raj and unleashed intercommunal violence--savage even by Rwandan and Balkan standards--that still haunts India today. This bitter diversitydriven legacy presents an extraordinary challenge to India's cohesion. Its survival, not to mention its robust democracy and recent economic growth, is a political achievement that evokes wonder and respect.
India's hard-won national unity remains fragile, still threatened by strong centrifugal forces and endemic corruption. Its 28 states implement a single body of national law, but within and among states parochial ethnopolitical identities, historical passions, and separatist pressures continually swirl. To relieve these pressures, the national government has had to carve three new states out of old ones. It also allows Muslim, Christian, Hindu, and Parsi communities to apply their own domestic relations, religious, and personal laws. This privilege, granted by the secular Congress party that created modern India, is under challenge by the BJP, a Hindu nationalist party with long-standing extremist elements. Until the May 2004 elections reversed its steady electoral progress, ending six years of national rule, the BJP pressed for a single, uniform civil code based on Hindu practice, and advocated other policies offensive to religious minorities, especially Muslims.
The outcome of these elections, perhaps the biggest political upset in Indian history, is a Congress-led coalition relying on a resurgent Communist party, other leftist groups, and some corrupt state and local machines. Most pundits see this as a victory for secularism, a spasm of deep anti-incumbent sentiment, and a rejection of economic liberalization policies that benefit the educated minority. The policies, critics say, have bypassed the vast drought-ridden agricultural sector where most Indians still live in utter destitution--a huge population that the BJP's much derided "India Shining" campaign theme seemed to ignore.
THE COST OF CORRUPTION
Most analysts believe that corruption is even more corrosive, perhaps, than minority disaffection and separatism. There is no reason to think the situation has improved since the 1980s, when Rajiv Gandhi estimated that almost 85 percent of money spent on public antipoverty programs was lost to corruption. Young lawyers and students are especially demoralized; they bemoan the absence of any role models in politics. This sentiment was reinforced by the devastating defeat in the recent elections of Chandrababu Naidu, the top elected official of Andhra Pradesh, whose capital city, Hyderabad, is nicknamed "Cyberabad" because it is a world symbol of technological prowess and progress. Before his defeat, Naidu was India's icon of modernization and one of the few internationally recognized politicians in India.
In a parody of scrupulosity, government officials do essentially nothing for the 40 days before an election lest they be accused of using their powers to aid the incumbents. Candidates for office routinely violate the unrealistically low limits on campaign receipts and expenditures. They view the mass of poor voters as reliable "vote banks" whose support can be bought with alcohol or small favors in ways reminiscent of the urban political machines of premodern America. This disgusts many welleducated citizens who then decline to vote. Whistle-blowing is uncommon. Until very recently, investigation of officials' wrongdoing required approval by their superiors. Freedom of information is not yet a well-developed right. Most newspapers are highly partisan. Party leaders enforce discipline with the rigor of a maximum-security prison warden. Politicians exert great influence over prosecutors.
The Supreme Court of India is widely admired (perhaps excessively so, as discussed below), but lower-level judges are often reputed to be on the take. Baksheesh, or bribery, is as common a topic of conversation as biryani. Dynastic succession in political office is the rule, not the exception.
PROSPERITY AND POVERTY
Even against this dismal backdrop, India's economic future should be bright. It boasts a large and growing middle class, many highly trained workers (over 2 million college graduates a year), widespread English language fluency, low labor costs, and generous remittances from prosperous nonresident Indians throughout the world. According to respected journalist Gautam Adhikari, Indians or Indian Americans launched 40 percent of Silicon Valley start-ups, and almost 10 percent of America's millionaires come from this group. Economic growth has been robust since the early 1980s, although still well below that of China and many other developing countries. The poverty rate has declined significantly, but, as discussed below, it remains above 25 percent, by India's very low standards. The much ballyhooed IT industry, centered in the southern cities of Hyderabad and Bangalore, was the subject early this year of a series of admiring columns by Thomas Friedman, the influential New York Times columnist. Exports of software and technology services have more than quadrupled since 2000, reaching $15 billion this year. Many U.S. jobs could be susceptible to outsourcing in India, a threat denounced by John Kerry in the presidential election.
Beyond the IT industry, however, the economic picture is more sobering. India still bears the scars of the misguided statist and protectionist policies of founding father Jawaharlal Nehru and Indira Gandhi, his daughter. By 1990, India's share of world trade had contracted to 0.4 percent, one-sixth its share at Independence. India's recent growth spurt, then, is very heartening. It is usually traced to liberalization policies adopted by the Narasimha Rao government in 1991 and carried forward by Rajiv Gandhi, Indira's son, or, alternatively, to new pro-business attitudes in the early 1980s. In any event, bureaucratic controls continue to limit productivity in many areas today, making it hard to get things done efficiently--one reason why corruption thrives. Power failures occur with a disturbing regularity. Air-India Limited, the national airline is a poor, much subsidized imitation of its dynamic private competitors. Market-oriented reforms are much discussed but slow to take root. The state controls seven of India's ten largest companies; state-owned banks control 90 percent of deposits, and the national railroad is the largest commercial employer in the world.
The political drag created by vested interests is of course one reason for this inertia. Another is India's huge, meddlesome civil service. According to a survey, business managers spend 16 percent of their time dealing with government officials. Career bureaucrats staff government agencies to just below the ministerial level, giving the relatively few political appointees less leeway to introduce and implement new liberalization policies. Rather than struggle against these status quo forces, some of India's best physicians, engineers, and entrepreneurs go abroad to find more dynamic and rewarding outlets for their talents.
The results of the recent elections have created enormous market uncertainty driven by concerns that the new leftist government will undo privatization, discourage foreign investment, and take costly populist measures. The Indian stock market rendered its verdict-- by plummeting as soon as the results were announced--although it later recovered somewhat with the naming of the new prime minister, an admired economist who designed the earlier liberalization.
Other impediments to more rapid growth exist: the lingering effects of a harsh feudal caste system; gender inequality; primitive transportation, electricity, sanitation, and other infrastructure; a public-sector budget deficit (largely in the states) approaching 10 percent of GDP; a backward agricultural sector that remains dependent on monsoons for irrigation; restrictions on foreign ownership of property; and the failure of many states to invest heavily in primary and secondary education. Such conditions leave 35 percent of adult Indians illiterate and even more at destitution levels that westerners can scarcely imagine. A recent survey in The Economist finds that an estimated 300 million Indians survive on less than $1 a day, 160 million lack clean water, and a tragically wasteful system for distributing India's ample food stocks leaves almost half of small children underweight. If it is any consolation, they live in family and spiritual communities that are thought to be less demoralizing and isolating than the American underclass experiences, with far better material conditions.
India's labor force of 400 million is tragically underemployed. Knots of able-bodied men stand (or squat) on most urban streets doing either obvious make-work or nothing at all. AIDS contagion, already alarming in some states, could break out to reach South African levels.
On a more hopeful note, a few states like Kerala and Mizoram (a tribal area bordering Burma) have managed to achieve almost universal literacy, low fertility and infant mortality rates, and almost equal female and male births, despite widespread poverty. Even these states, however, do not generate enough jobs to sustain their growing populations, forcing many of their best and brightest to migrate abroad. One stunning measure of the brain drain: The almost 2 million Indians living in the United States make up this country's wealthiest ethnic minority; nearly 30 percent of these families earn over $100,000 a year.
A BRITISH LEGAL LEGACY
India's proudest inheritance from the British was its legal system and the professional civil and military service that would implement it. Most of the founding generation's political and legal leaders, like Nehru, Mahatma Gandhi, B.R. Ambedkar, and Vallabhbhai Patel, were educated in England, where they creatively combined their antiimperialist fervor with an Anglophilic respect for British legal culture. Today, 57 years after Independence, even the most nationalistic Indians revere this colonial legacy. Few colonized peoples have done as well as India in gaining the political-ideological maturity to cast off a despised imperial rule while appropriating some of the empire's best traditions.
Indian legal education, as in Britain, has traditionally been a three-year highly specialized course of study at the undergraduate level. Several programs, including elite national law schools that now operate with central government funding in Calcutta, Bangalore, Hyderabad, Bhopal, and Jodhpur, have begun to move to five-year programs, which will include some nonlaw courses. Even today, however, the law schools tend to have large lecture classes, sporadic interactions with students, little interdisciplinary analysis, few clinical programs, limited training in legal research and writing, and an emphasis on rote learning. The vast majority of professors lack training in nonlaw fields and conduct little original research.
Most Indian lawyers practice alone with tiny offices on or near the street. At the high end, lawyers spend almost all their time as advocates before the Supreme Court of India in New Delhi, or before the state high courts. Unlike in the U.S., almost all Indian law is national, making all high court judgments appealable to the Supreme Court of India. The legal profession generally enjoys less social prestige than engineering, medicine, or high- tech work, and some of India's most talented young people (law graduates included) aspire to highly competitive positions in the relatively well-paid and secure Indian Administrative Service, rather than in private-sector jobs. This may change, however, as privatization initiatives take hold.
India's vision of a judicial system carefully meting out justice through judges who are as independent as those in Britain and the U.S. remains largely unfulfilled. American researchers Marc Galanter and Jay Krishnan find that "Indians avail themselves of the courts at a low rate, and the rate seems to be falling." Even so, the courts stagger under mind-boggling caseloads and delays. Criminal defendants can spend years in jail before reaching trial. The civil court backlog of 24 million cases proceeds at the pace of Jarndyce v. Jarndyce; great heaps of litigation documents spill over from clerks' desks onto floors and into hallways. Relatively few cases settle. A 20-yearold reform, lok adalats ("people's courts"), follows a number of earlier efforts to improve ordinary citizens' access to justice. They are usually modeled on informal, indigenous, village-based courts. But a new study by Galanter and Krishnan concludes that lok adalats generally operate in a peremptory, top-down manner that provides little of the speedy, fair, deliberative, grassroots justice that was promised.
Even more demoralizing than its slow pace and inefficiency, the judicial system is also seen as corrupt. Lawyers believe that many lower court judges (and even some on the high courts) take bribes, favor certain litigants, and do not really know or apply the law. The judges' ethical standards are thought to be little better than those of politicians. An outsider, of course, cannot readily assess the accuracy of this view. The Supreme Court of India rotates high court judges among the various states and requires that the chief judges of these courts come from other states--a mandate largely designed to reduce corruption opportunities.
Many good-government advocates who are desperate for change and do not know where else to turn have cast their lot with the Supreme Court of India, making it a primary focus of their reformist hopes. It is easy to see why. The 26-member court is perhaps the most prestigious organ of government in India, and is certainly among the most powerful and autonomous. The constitution confers remarkably broad authority on the court, which has energetically extended this authority to (if not beyond) its outer limits. For example, it has even invalidated duly enacted constitutional amendments, ruling that they violate the spirit and intention of the constitution's framers.
Much of the court's constitutional and statutory review occurs in highly controversial disputes. In April, for example, it ordered the retrial of 21 Hindus acquitted on charges of burning 14 Muslims alive in a bakery during religious riots that many believe BJP members instigated. It did so under constitutional powers ensuring judicial fairness. In many cases, the court has mandated specific and complex public policies that politicians and bureaucrats have either rejected or failed to adopt. For example, it has banned older vehicles from the streets of New Delhi, late-evening noise, and polluting industries within miles of the Taj Mahal. It has also ordered the cleansing of the holy Ganges River.
The court has remarkable procedural authority to engage in such policy making through "public interest litigation" under Article 32 of the constitution. The court also creatively interprets regulatory statutes, the constitution's broad "directive principles," and its open-ended substantive provisions. The court has, for example, transmuted the "right to life" into a right to a dignified and safe life.
Under Article 32, the court has eliminated virtually all standing requirements, allowing any concerned citizen to apply to it or to a state high court to redress any legal wrong--political, environmental, dignitary, social, or otherwise--suffered by any person or group of people who by reason of poverty, disability, or disadvantage cannot sue on their own behalf. These cases also receive priority on the judicial docket. Not surprisingly, lawyers have filed a very large number of them. Indeed, an angry Supreme Court panel ruled in March that most of these cases have nothing to do with the public interest or purposes of Article 32. This ruling followed an earlier case in which it had felt obliged to issue guidelines designed to prevent frivolous and abusive claims, apparently with little effect.
The high court's power extends well beyond substantive decisions in particular cases. In a remarkable 1993 decision, the court interpreted the constitution to empower the chief justice of India and his most senior colleagues to determine, in effect, who is appointed to fill vacancies both on the court itself and on the high courts of the states. Another court interpretation allows the chief justice to transfer high court judges from one state to another. In a far-flung country like India, where the quality of life can vary enormously from state to state, this gives him immense power to reward and punish other judges. The court does not brook vigorous criticism of itself or its rulings. In a 2002 case involving Arundhati Roy, the celebrated Indian writer and social activist, the court held that her sharp attack on one of its environmental decisions scandalized the court, tarnished its dignity, and thus constituted contempt of court--although the court, citing its own "magnanimity," reduced her sentence to one day in jail. In these and other ways, the justices seem to have succeeded in intimidating journalists, the bar, and the legal academy from engaging in the kind of feisty assessment of their decisions that in America are routine. The court claims to welcome constructive criticism short of contempt, but the potentially severe penalties for crossing this uncertain line inevitably chill debate over its performance. This in turn could threaten the court's integrity, the quality of its work, and perhaps the rule of law itself.
No one can deny India's extraordinary achievements and future promise. Out of the wreckage of the British Raj and a congeries of ancient cultures and feudal principalities, it built a dynamic nation-state with uncommon respect for and tolerance of the astonishing diversity of its people--and relatively little violence, outside of Kashmir. Its economy is finally on the right track, powered by a large, growing middle class, immense internal and regional markets, and first-rate technical training. Its civil society esteems strong families, communal solidarity, higher education, and a generative mix of spirituality and materialism. Its democracy (like most, including ours) is not pretty to watch but remains remarkably robust and secure. Its legal institutions--the courts, bar, legal education, bureaucracy, and constitutionalist ethos--are probably stronger and more mature than those in any other developing country. This last is not faint praise; instead, it recognizes what is a kind of historical-cultural miracle. When American lawyers finally arrive in India, they will find much there to dismay them but even more that is promising, intriguing, admirable, and even inspiring.
Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School. He lectured throughout India earlier this year as a Fulbright Senior Scholar. E-mail: peter.schuck@yale.edu.