101

102
103
104
105
WEEK - 4 & 5

106
107
108
109
110
111
112
113
114

THE LAW AS A TOOL :
THE TYRANNY OF A METAPHOR
A . BEYON D VULGA R INSTRUMENTALIS M
Tw o majo r approaches to the understanding of the Jaw, at least in the
class-divided societies, stand out in Marx' s slender, but historic, corpus cm
law. Th e first grounds the nature of the law in the overall feature s of a
mod e of production, or the idea that the legal structure and process is
"determined " (even if in the last instance) by the economic structure. Th e
second rests the notion that the law is a tool of the ruling classes, used so
as to repress the working classes. Th e first approach is generally described
as the materialist and the second as the instrumentalist theory about th e law.
Both Namboodripad and Hidayatullah seem to have in mind an instru-
mentalist approach to the law. The majo r difference between them is one
of emphasis. Namboodripad singles out justices and the judiciary as the
repressive arm of the bourgeois state; Hidayatullah emphasizes that the
1 degree of permanence to the ruling classes in the human history and endows
repressive, class character of the law emanates fro m the legislation, and sub-
115
jective aspirations and motivations of the lawmakers.
While the Namboodripad - Hidayatullah discourse has the merit of
identifying 'legislation' and 'adjudication ' as distinct realms of the law, it
remains enclosed within what must be called vulgar instrumentalism. This
characterization is attracted because neither of them attends to the plentitude
of the phenonmenon which may be designated as the "law" , no r specifies
what it is precisely to say that whatever is called the "law " is necessarily
an instrument of the ruling classes.
As to the last, whatever one may wish to mean by the law being a
"tool " of the ruling classes, many aspects of everyday working of the law
would seem to contest this naive characterization. Fo r example, in the Indian
law, how is one to explain developments in the company law, labour law,
the monopolies and restrictive trade practices law, the provisions of preven-
tive detention fo r smugglers, hoarders and blackmarketeers, th e industrial
development and regulation, the essential commodities law etc. on the basis
of a crude class instrumentalist approach to the law? And, at a mor e
basic level, how is one, on this sort of approach, likely to be able to explain
T H E LA W A S A TOOL: T H E TYRANN Y O F A METAPHO R 17
the debat e over, and deletion of. the right to property under the Indian
Constitution? Or, the special provisions fo r the scheduled castes and tribes
and othe r backward classes? Or , the incorporation of the key concept of
"socialism " by the Forty-Second Amendment , modifying the very Preamble
to the Indian Constitution? Or th e current concern with gender justice? How
is on e to explain the rise of legal aid movements supported by th e State
an d th e meteoric rise and growth of the social action litigation in the Su-
prem e Court and the High Court s of India V
Ther e has not been, fo r example, any notable change in the class
origins of Indian Supreme Cour t an d High Court justices in the last four
decades: and yet approaches an d interpretations of labour legislation have
3
undergone distinct changes in each decade, both in relation to th e organized
and unorganized labour. Muc h the same may be said about the changing
judicial approaches of other sections of the historically disadvantaged people.
It is open to doubt whether sustained research in the Indian judicial behavi-
ou r will support an enduring and global generalization that judiciary is
heavily weighted against th e working class.
On e may, as we notice later in this Chapter, imagine ways in which
every single instance of law's use immediately in the advantage of the
dominate d classes may be construed as being in the long run in th e interests of
th e ruling classes. But, as we see a little later, such an approach ascribes a
them not just with a lack of hetorgeneity but with, as it were, a collective
unconscious unerringly and omnisciently pursuing its own interests. This
is a wholly unilluminating manne r of reading legal history.
On the question of the law as such, the Namboodripad - Hidayatullah
discourse offers us images, as it were, only of nine blind persons and the
Elephant ! (An d it does not mak e much difference to the fabl e if nine
blind elephants were to describe one human being!) . One says the law is
legislation; the other that th e law is adjudication. A whole ensemble of
seven figures is missing ! In orde r to complete the fable, we have at least
to supply other images. These ma y be: the law as the policeman with the
club, the jailor, the hangman, th e amorphou s custom of the impoverished
(against the for m of state legislation and adjudication), the cherished behavi-
ou r or value of a mass of citizens or a tradition embedded in history which
sustains the authority to ennunciate whatever is, for the time being, the law
fo r the community. Clearly, the law is all this and perhaps more.
Vulgar instrumentalism would, however, insist that this variety of per-
ceptions does not diminish the reality of the law as a tool. It only invites
us to describe with greater precision how each realm of th e law has been,
and on principle can be. used as a tool.
Vulga r instrumentalism. of course, makes use of the oft-quoted state-
ment in th e Communist Manifesto which says that the executive of the
moder n state is but a committee fo r managing the common affairs of the
whole bourgeoisie. And the law clearly is among the authoritative voices of
M-2
 18 MARX, LAW AN D J U S T I C E
this committee. But it overlooks, usually, the full force of this statement.
Th e statement, closely read, refers to the state in its character as the execu-
tive power; but the state power is not exhausted anywhere by its "executive"
form, the adjudicatory power being the other notable instance, and not the
only one. Vulgar instrumentalism also overlooks the fact that the managing
committee is intended to manage the common affairs of the whole bourge-
oisie, not the sectarian affairs of factories of the bourgeoisie. And the obser-
vation does not by referring to the "common affairs of the whole bourgeoisie"
provide any elucidation as to what shall count as such common affairs. No r
does it impart any historic unity, at any given point of time, to an entity
here described as the "whole bourgeoisie." We will shortly consider some
of these matters. But it should suffice here to not e that any serious, as
distinct from the vulgar, instrumentalism will have to take account of these
complexities in sustaining its thesis that the law is a tool of the ruling
classes.
Similarly, vulgar instrumentalism may be content to use metaphor "tool "
to achieve certain obvious rhetorical and polemical discursive impacts. But
these cannot obscure the serious underlying questions concerning the type
of 'tool' that the law as a whole may be, the ways in which it is forged,
replenished and refurbished, the nature of its trajectories and targets and
its ability to withstand resistance, and to boomerang on its deployer.
116
B. A SERIOUS INSTRUMENTALIS T VIEW
All this does not negate the claim that those in power use the law (both
in intention and impact) against the powerless. This is quite often and
preponderently case. Instrumentalism, however, seeks to understand and
explain this persistence, not just to redescribe it fo r us from time to time.
In this sense (which is the only sense in which it may hold any serious
attention) that instrumentalism has to have at its core the idea that certis
parbius, the law is pre-eminently and predominently liable to be perceived
and used by the ruling classes not just to promote their interest but also to
repress those interests which contradict or delegitimize their interests.
A number of advances over vulgar instrumentalism are here registered.
First, the core proposition is a proposition about tendency, not about an
invariant social law. It does not commit us to saying that the law can never
be used any other way. Second, the core proposition of serious instrumen-
talism refers to the probability, very strong indeed, of how the ruling classes
will on the whole perceive the law. They are more likely than not to perceive
the law as a pliant tool. This leaves open two very basic issues: the domi-
nated classes may or may not perceive the law the same way and no matter
how the ruling classes perceive it, the life of the law (or what Marx so
often called it "the experience of the law" ) is not exhausted by this percep-
tion. Third, the collective (class) perception is animated by a collective
(class) intention; the law as a tool is to be used in this and that way to
T H E LAW AS A TOOL: T H E TYRANN Y OF A METAPHO R 19
ensure and enhance ends of dominance. But achievement of intention is not
postulated in this formulation; it is left open to th e play of history. Thi s
means at least even if a tool, the law is not a milli-microsecond precision
missile. Indeed, it is a rather wide-ranging tool, deployment of which is
fraught with consequences not always planned or predictable. Fourth, in
leaving the question of the impact of uses of the law somewhat open, serious
instrumentalist position keeps open spaces fo r the ongoing reconceptualizations
of whatever may seem to constitute fo r the ruling classes themselves their
own interests and intentions.
Even so, this serious instrumentalist position needs to articulate the
idea of the law, in its most generalized form , as a class-appropriable dis-
cursive totality. Perhaps, serious instrumentalist may seize upon at least
two characteristic aspects of the law : its endless normativity and its bureau-
cratic organization of coercion.
C . TH E NORMATIV E LA W A S A N "INSTRUMENT "
Th e modern legal system can be perceived to be an instrumentality
primarily because it claims for the State the legitimate monopoly of
force. Th e legal system draws the crucial distinction between prescribed
and proscribed threat or uses of force. Apart fro m reasonable use of force
in self-defence by subjects of the legal order, the legal system, always and
everywhere, seeks to delegitimise and criminalize violence by actors other
than those authorised to use violence (normally, the agents of the State —
the police, the para-military forces and the armed forces) and provides a
normative language which camouflages the core coercion underlying the law.
This is a facto r of enormous significance. Th e normative language of
the law carries its own justification, as it were, and conceals the behavioural
reality of repressive violence. For example, the statement that the accused
X was denied bail or a jail escapee was prevented do not readily bring to
our minds the elements of sustained coercion and overt violence involved
at the behavioural levels. The behavioural translation of these statements
would go somewhat like this: (i) the magistrate has ordered that X be
physically prevented fro m moving beyond confinement and the police or
jailor is entitled to use all necessary force (including handcuffing, cellular
confinement, custodial discipline etc.) to keep X in custody and (ii) the
correctional staff in the escape situation have used all available coercion
(shooting as to debilitate, shooting to kill the escapees, disciplinary coercion
on the frustrated escapees etc.) permitted to them by the law. Th e behavi-
oural reality of structured coercion, applied by specialized bureaucracies,
trained and maintained for the purpose, is almost always concealed by the
law (except in rar e cases e.g. X is awarded capital punishment; even here
the immediacy of feeling is blunted.). In contrast, non-state violent actors
do not have authoritative language with which to camouflage their behavi-
our; their violence is fo r all to see an d feel.
Those who resort to violence have, therefore, to use ideologies to legiti-
 20 MARX, LA W AN D J U S T I C E
mize their exercises. An d they hav e to do so without the benefit of a share d
authoritative system of communication , like th e normative language of law.
Unless the ideology is powerfully articulate d an d disseminated, legal repres-
sion stands swiftly legitimised. Ther e is thu s fro m th e beginning an asymmetr y
in powe r relations notably introduce d by th e legal system an d culture.
Police do not so much have to justif y strategies and method s of 'riot ' con -
trol ; the rioters resort to violence; not th e agents of the State. 5 "Terrorism "
by private groups instantly becomes doubtfu l of justification; "stat e terro -
rism" still requires an enormous theoretica l labou r even fo r its presentatio n
as a problem.
Th e self-justification fo r coercion thu s stands structured by th e very
language of th e law or in a mor e extended contemporary sense by the
semiotics of th e law. A highly generalized, self-legitimating system of norms ,
semiotic discursive objects, and specialized languages ar e thus available fo r
class-appropriabl e uses.
And the legitimation of th e law extends beyond justification of coercion
to the very idea of the law itself. By definition, as it were, th e law seeks
to pursu e th e 'public' and not the private interest. Ther e may be conflict of
views an d positions on whether a particula r law does or does no t foste r
th e publi c interest or what the public interest is, or may be, in a given
situation. But these antinomies do not undermin e the basic postulate of
legal normativity ; namely that the law is a mediu m fo r the pursuit of th e
117
public interest.
Thi s make s the normativity of law an inestimable ally of th e ruling
formations . On e has just to read th e young Marx' s impassioned critiques
of th e law on th e theft of wood or on Prussian censorship decrees to appre -
ciate th e enormou s difficulties entailed in questioning the public interest
characte r of th e law. Th e problemati c of the "lawless laws" or of the "unjus t
laws " - on th e issue, for example, whether such 'laws' should be denied th e
very title of being laws — provides yet anothe r domain of difficulties in con-
testing th e basic idea that the law represents, fo r weal or woe, "th e public
interest. "
So overlaid is the social consciousness with the idea of the law as a
mediu m fo r th e pursuit of the public interest that the reiteration of th e
instrumentalist thesis in each generation itself becomes a radical act ! Indeed ,
th e thesis that th e law is a tool of th e ruling classes tends to boomeran g on
those wh o propoun d it ! For, isn't it the n apt to be used as such by revolu-
tionary ruling classes for their own ends? A good instrumentalist canno t say
tha t afte r th e 'revolution' the law will not function as a medium fo r the pursuit
of th e public interest fo r that thesis reduces all law to an instrumentality
of the ruling classes. Th e fact tha t on e approve s wholeheartedly of th e new
ruling classes doe s not make th e law an y the less its instrument.
D . TH E APPROPRIATIO N O F TH E APPARATUSE S O F TH E LA W
But the law is not just a discursive organization of power. Its institu-
T H E LA W A S A TOOL : T H E TYRANN Y O F A METAPHO R 21
tional materiality is embodied in state apparatuses. Th e distinctive characteri-
stic of the law (as distinguished fro m convention, custom and usage) as a
"coercive apparatus " was enunciated, memorably by Max Weber. Th e law,
fo r him, was distinctive in its sociological structure of coercion; that is by
th e fact of a "staff of people holding themselves specially ready " fo r the
purpos e of enforcing conformity or avenging violation of the law. Th e
apparatuses of th e law, then, ar e all those instrumentalities inclined (ready,
willing and able) and obliged to deploy state coercion mostly within, but
where necessary also outside, th e bound s of legality.
Serious instrumentalists would emphasize the fact that huma n history
records not carelessly but in a pattern, and often in tragic detail, ways in
which the coercive apparatuses of th e law stand almost wholly appropriated
by the relevant ruling classes.
Indeed, the pre-capitalist mode s of production, and particularly the
feudal mode, entail such appropriation . So much so that today among the
key characteristics of the feuda l mod e of production ar e listed "juridicial
serfdom, " and "military protection of peasantry by a social class of nobles,
enjoying individual property and authorit y and property, and exercising an
exclusive monopoly of law and private right of justice...." 7 Th e uses of
law in th e emerging capitalist mod e have been vividly documented by, and
since, Mar x and Engels. Th e makin g of th e colonial law provides yet
8
anothe r script of appropriation of th e law.
In the exceptional (fascist) state formatio n the notion of legality itself
is reappropriated : as has been said, what is "typical of the exceptional state
is not so muc h that it violates its rules, as that it does not even lay down
th e rules fo r its functioning." In other words, the coercive apparatuses
10
become the whole of the law. But while there are no limits to state power
set by law it is also true that that this reappropriation consists in leaving
"intact that aspect of the law which regulates the economic basis of the
capitalist system."11
And in th e revolutionary situations, the apparatus of law is redirected
in its full fur y against its erstwhile managers and beneficiaries who now
become the "enemies of the people. " Jurisprudence of purge and liquida-
tion of class enemies testifies, routinely in revolutionary situations, to the
instrumentalist appropriation of th e law.
E . PERSISTEN T DIFFICULTIE S WIT H INSTRUMENTALIS M
Serious instrumentalism's core claim now begins to appea r weighty
and persuasive. It certainly helps interrogate more acutely the consensualist
view of the law which asserts tha t the law of any society is based on some
sort of societal consensus on the basic ideals. It also persuasively interro-
gatcs any unnaturalist understanding of the law as an embodiment of
huma n or divine will or reason. It furthe r directs attention to th e law as
12
 22 MARX, LA W AN D J U S T I C E
a central figure in the concrete history of domination. These ar e no small
gains.
Even so, persistent difficulties characterize understanding of the instru-
mentalist thesis, especially in relation to the collective agency designated
as the "ruling classes." We mention below at least five majo r difficulties.
First, instrumentalism will have us believe that the "ruling class" con-
sciously behaves or tends to behave in such a manner as to promote and
protect its "best material interests." Or , in other words, it so always con-
13
ducts itself as to safeguard and enhance its position of dominance in the
mode of production. This amounts to a doctrine of infallibility through
necessity, ~ doctrine which refutes itself in the very act of articulation.
With all its cunning and capital, the "ruling class" may be falliable. It may
make mistakes, both from short term and long term perspectives, in identi-
fying its "best material interests" through law, administration or policy.
It may even fail to identify its interests accurately through shortfalls in
information, poo r analysis or political sagacity.
Second, the expression "ruling class" is an abstract category. Classes,
for Marx, are delineated by the places people occupy in the mod e of pro-
duction. Marx himself identified not just the three classes (landlords, capi-
talists. wage-labourers) but also petty bourgeois, the "ideological professions"
and the lumpenproletariat. Among the capitalists he identified varieties of
capital (monopoly capital, competitive capital, domestic and international
118
capital, etc.). Th e "best material interests" of classes constituting the "ruling
class", therefore, differ. Where these differ, the law (its forms, contents,
processes) cannot be said to express the will of the "ruling class" as such but
only the will of a dominant faction of capital, interlocked and intertwined
with other factions.
Indeed, Marx and Engels argued not that the executive of the state is
the managing committee of the bourgeois but that the "state serves the
common interest of the whole bourgeoisie." Issac Balbus brings to our
14
notice that the state cannot serve the commo n interest of the whole bour-
geoisie by simply responding to the "bidding of individual capitalists, or
even of a given fraction of capitalist class." If the state did so "it would
simply be unable to do what has to be don e to reproduce the mod e of
production as a whole and would thus be unable to serve the interests of
the capital as a class." Logically, the converse also follows: the state can
only accomplish this if it were "not a mere tool of capitalist subjects " and
indeed if it possessed "a form or structure that renders it autonomous in
important measure from their preferences." This, ipso facto, applies to
15
the law as well, since the law is a coercive apparatus.
Third, the instrumentalist does not help us at all in grasping why ruling
classes adopt or evolve different types of legal systems. The debate, if it
can be so called, in India whether we should retain the present Parliamen-
tary form of government or switch over to th e Presidential form of govern-
ment does not lend itself to an analysis in terms of the law as the will of
T H E LAW AS A TOOL: TH E TYRANN Y OF A METAPHO R 23
the ruling class or as its tool; the point is that, on the general premise, both
th e form s work as a tool of domination. No r need, fro m this standpoint,
there be in India so much excitement on the issue of whether Parliament
should have the last say on the amendment of the Constitution or the
Supreme Court also retain its co-ordinate constituent power to pass on the
validity of the amendment. Legal evolution is also not illuminated by th e
instrumentalist thesis.16 Even when the law is imposed, as during th e period
of colonization, it does not accord in all respects with "the will of the ruling
class of the colonizer." Thus, the instrumentalist fails to tell us why th e
instruments are different !
Fourth, if the law is the expression of th e will of "th e ruling class", how
does an instrumentalist fully explain not changes of the law as well changes
in the law? No one, especially a lawperson, reading the Capital can miss here
the significance of Chapter Ten of Volum e One , offering an outstanding
micro-analysis which, in turn, provides a model for the descriptive sociology
of law. It conclusively shows that th e "creation of normal working-day is . . .
the product of a protracted civil war, more or less dissembled, between the
capitalist class and the working class. Th e war is inherent in relations bet-
17
ween capital and labour. Th e capitalist purchases labour power fro m the
labourer; and insists on her rights to "mak e the working day as long as
possible and to make, wherever possible, two working days out of one. " Th e
labourer on the other hand as a seller of labour power wishes to "reduc e
the working day too of definite normal duration." Marx posits this as an
18
inherent antinomy. Since both the purchaser and the seller of labour power
conduct the transaction "bearing the seal of the , law of exchanges," the
conflict over the working day is one of "right and right." Marx says "Between
equal rights force decides." But force does not arise naturally only for the
19
sellers of labour power who are atomized by the forces of market. Th e
labourers to o have to organize their own might. Marx finds a message in the
struggle for th e definition of the working-day:
For 'protection' against the 'serpent of their agonies', the labourers
must put their heads together, and, as a class compel the passing of a
law, an all-powerful social barrier that shall prevent the very workers
fro m selling by voluntary contract with capital, themselves and their
families into slavery and death. In place of the pompous catalogue of
the 'inalienable rights of man ' comes the modest Magna Chart a of a
legally limited working day which shall mak e clear 'when the time which
the worker sells is ended and when his own begins.' Quantum mutatus
ab illo!20
Fifth (and without being exhaustive) we must pause here to note the
multiple ambiguities of the metaphor "tool, " or "instrument. " The metaphor
misleads in several ways. If the law is a tool, it is forged through history
and culture, by many minds and hands, and not just of the bourgeoisie and
 24 MARX , LA W AN D JU S T I C E
the ruling classes. Th e 'tool' of law is not shaped by th e intentionality of the
dominan t maker or user of it; th e target or th e victim also shapes, resists and
recasts it. Indeed, in certain situations th e 'tool ' of law makes its first user th
e real target : witness Orian a Fallaci's The Man or Mahaswet a Devi's
21
Draupadi.22The metapho r overlooks that the law is not on e voice but a
plurality of voices, save in situations typified in Thir d Reich or Gula g or
Sharpvilie. Judges, lawyers, administrator s and enforcer s of th e law, con-
cerned citizens groups, and mass media, also provide a chorus, an d ofte n a
cacophony, of voices. An d implicit in all these points, th e notion of law as
'tool ' proceeds on an impoverished notion of 'power ' as zero-sum game,
which it rarely is.
F . TH E COMPLEXIT Y O F TH E LA W A S A STAT E APPARATU S
Even when th e law as a whole is to be viewed as an aspect of th e coercive
apparatu s of the state, th e law presents a very complex picture of distribu-
tion of official agents and their mutually complementar y as well as contradic-
tor y roles. Thi s complexity appear s glossed over not just in th e vulgar but
serious instrumentalism.
Fo r example, given the claim or th e pretence tha t the law mediate s
general, public interest, legislation has to of necessity remain general, appli-
119
cable to all persons. But the task of application of legislation to individuals
ha s to be assigned to some legal/stat e apparatus , which is typically th e
judiciary. As the young Mar x acutely said:
Th e law is universal. Th e case which ha s to be decided settled in accord-
anc e with the law is a particular case. To include the particula r in the
universal involves a judgment . Th e judgment is problematic. Th e law
requires also a judge. If laws applied themselves, courts would be
superfluous. 23
It is typical of moder n societies tha t the task of judging is considered specia-
lized an d distinct fro m that of legislation an d administration . Even the serious
instrumentalist will have, on first principles, no way of explaining this split-
ting of tasks. If the law is a tool of the ruling classes, it is rathe r inefficient
to go on distributing th e tasks of law interpretatio n an d enforcemen t in such
fine detail within th e centralized state power and within and amon g judges;
th e infinite decentralization of adjudicator y power doe s present a proble m
fo r th e instrumentalist thesis.
But letting this pass, it is importan t that certain structural conditions
also attac h to the office of a judge which do not attach the sam e way to the
office of a non-judicial administrator . Mar x himself celebrated th e difference
in th e figure of a censor and a judge strikingly well. Th e passage is worth
quotin g i n full :
T H E LA W A S A TOOL : T H E TYRANN Y O F A METAPHO R 25
What difference there is between a judge and a censor!
Th e censor has no law but his superiors. The judge has no superiors but
the law. Th e judge, however, has the duty of interpreting the law, as he
understands it after conscientious examination, in order to apply it in a
particular case. The censor's duty is to understand the law as officially
interpreted for him in a particular case. The independent judge belongs
neither to me nor to the government. The dependent censor is himself a
government organ. In the case of the judge, there is involved at most the
unreliability of an individual character. The judge has a definite press
unreliability of an individual intellect, in the case of the censor the
unreliability of an individual character. The judge has a definite press
offence put before him; confronting the censor is the spirit of the press.
Th e judge judges my act according to a definite law; the censor not
only punishes the crime, he makes it. If I am brought before the court,
I am accused of disobeying an existing law, and for a law to be violated
it must indeed exist. Where there is no press law there is no law which
can be violated by the press. The censorship does not accuse me of
violating an existing law. It condemns my opinion because it is not the
opinion of the censor and his superiors. My openly performed act, which
is willing to submit itself to the world and its judgment, to the state and
its law, has sentence passed on it by a hidden, purely negative power,
which cannot give itself the form of law, which 24shuns the light of day,
and which is not bound by any general principles.
Closely read, Marx is saying here that even if a judge be considered an
ineluctable aspect of dominance, the office of a judge is marked by a degree
of autonomy that the office of a censor simply does not possess. Judicial
power, no matter how sought, or deployed, as a tool of dominance, does not
"shun the light of the day " and is "bound by certain general principles."
And the judge is independent, who belongs "neither to me nor to the govern-
ment, " even if the instrumentalist thesis will have it that the judiciary is
eminently at the disposal, overall, of the dominant interests.
Th e serious instrumentalist thesis cannot gainsay this internal complexity
(of differentiation of agencies and roles, of which we have considered only
one major example here) within the law. Nor can it gainsay the important
consequence of the relative autonomy of adjudication within the realm of
the law. But to posit such autonomy is, of course, to interrogate the very
instrumentalist notion that the law is. in some or the other sense, a 'tool.'
Tools, even when most sophisticated, cannot remain tools and develop
relative autonomy from the blueprint and design which form their matrix.
Tools cannot develop their own purposes, their own, even 'immanent', logic
of development. When I say they 'cannot,' I of course do not refer to any
law of nature or necessity. The conception or tool is itself a discursive tool.
It can be enlarged and enriched. Certainly, one may forge a discursive notion
of a fool, which is relatively autonomous But such serious violence to
 26 MARX, LAW AN D JUSTI C E
language, and such testing or imagination, would require its own special
justification. I am afraid that my own imaginative construction of the case
for serious instrumentalism does not contain possibilities which would justify
this endeavour.
G . CONCLUSION : TOWARD S TH E RELATIV E AUTONOM Y O F
ADJUDICATIO N
For all these reasons, the Namboodripad 'thesis' is false and misleading.
So is the Hidayatullah 'thesis'. Neither recognizes the relative autonomy
of the law; and within it. the relative autonomy of the various institutional
domains of the law. And both, in their own inimitable ways, even if with
profound inadvertence, caricature Marx and Engels.
If Namboodripad errs in reducing all law (legislation, adjudication,
administration) into a mere tool of the "ruling classes," Hidayatullah errs
in reducing all adjudication to being "an evil adjunct of class legislation."
In doing so, he (like Namboodripad) commits grave cognizable offences
against clear thinking, let alone against clear Marxian thinking.
Chief Justice Hidayatullah does not decode the meaning of "class
legislation." And whatever meaning we may place on it, it is inot always
necessary that its administration by the judiciary makes it an "evil adjunct "
to the legislature.
Indeed, the term "class legislation" verges on meaninglcssness (as a
120
category of concealed multiple reference). Marx himself acknowledges,
25
notably in Eighteenth Bruamaire, the complexities and indeterminacies of
the notion of class. An d the crucial distinctions between "class-in-itself" and
"class-for-itself," as well as "classes" and "factions" underscore at least
26
the need to use the notion with greatest of care and caution, as a "tool "
of analysis.
At an elementary level, all this would become strikingly clear if one asks
whether the Hindu Cod e Bill, the Equal Remuneration Act, the Dowry
Prohibition Act are instances of 'class' legislation? Or do legislations protec-
tive of the children, the disabled, and the aged fall within 'class' legislation?
Do women, aged, children and the disabled constitute a 'class' in Marxist,
Marxian or any other sense? And seeking to vigorously implement these
laws, can we appropriately say that adjudication becomes an "evil adjunct "
to "class legislation?"
Similarly, as Marx' s own analysis of the working day legislation suggests,
legislation may register the triumph of the working class as well. Fo r example.
Indian justices need not perceive themselves as "evil adjuncts " to legislature
(unless they are totally and irredeemably reactionary) in vigorously enforcing
laws like the Bonded Labou r System Abolition Act, 1976; Th e Minimum
Wages Act. 1950: the Contract Labour Abolition and Regulation Act, 1971.
Th e "evil adjunct " metaphor is really an alibi fo r the judiciary. Th e
legislative text of the Industrial Disputes Act, in terms did not require, fo r
example. Justice Hidayatullah to rule that the Delhi Gymkhana Club should
TH E LAW AS A TOOL: TH E TYRANN Y OF A METAPHO R 27
not be treate d as industry, depriving thereby its workers of th e minimal
protection of du e process rights in employment. Th e Act did not explicitly
27
require profit motive as a sine qua non of its definition of industry. The
requirement was read into th e Act by Justice Hidayatulla h just as it was read
out of it, abou t a decade an d half later, by Justic e Krishna Iyer.
28
This shows strikingly th e relative autonom y of adjudication , whether as
a mean s of dominatio n or of liberation, in relation to legislation. Justic e
Hidayatullah' s cosmopolitan way of life led him to conferrin g immunity
to clubs fro m industrial disputes regulation. Similarly, Justic e Krishna Iyer' s
quest fo r 'spirituality' constrained him to exclude spiritual agencies fro m
that definition. If Justice Hidayatulla h is to be faulte d fo r his bourgeois
approac h to adjudication . Justic e Krishna Iyer is also exposed to th e same
reproach, despite his evocative espousal of socialistic values an d virtues (fo r
Marx had no scientific or praxiological use fo r religion an d spirituality).
But not all adjudication , and all th e whims an d vagaries of th e judicial
process, can be reduced to th e operation of a 'class' bias of a specific kind,
just as all legislation cannot be so reduced. Th e 'ruling class' is as noted,
not homogeneous; th e antinomie s and contradictions within 'power-blocs,'
and 'factions ' equally affect th e process of legislation, adjudication , and
administration. So do th e countervailing ideologies and power of th e working
'class', with all th e antinomies and factions within th e working 'class' itself.
You might wish to say that all this comes quit e close to liberal - plura-
listic approach . In what wa y does th e relative autonom y of law — as legisla-
tion, adjudication , administration — differ? Does not all this new-fangled
terminology of th e relative autonom y of the law merely rework the dictum
of Morri s Cohen : all legislation is, all said and done, a treat y of peace
among warring interests?
To comba t such misunderstanding, we require a close reconstruction of
Marxian an d Marxist theory of state and law. It will suffice fo r ou r purposes
to say that the relative autonom y of state and law signifies something quite
different in a Marxia n approach : th e state and law ar e not neutral instrumen-
talities, or centres of pluralist concensus-making, or arena s of redefinition
and transvaluatio n of values. In th e capitalist state th e "autonomy " of the
political can allow the satisfaction of the economic interests of certain
dominated classes, even to th e extent of limiting, at times, their domination.
These limits must , however, not adversely affect their overall political power.
As Gramsci said:
Th e life of th e state is concerned of as a continuou s process of forma -
tion an d superseding of unstable equilibria (o n a juridical plane) bet-
ween th e interest of th e fundamenta l grou p an d those of th e subordinate
grou p — equilibria in which the interests of th e dominan t grou p prevail,
but only upt o a 29certain point, to a stopping short of narrowl y corporat e
economic interest.
 28 MARX , LA W AN D JU S T I C E
It is at some such level of distinctively Marxian analysis that the entire
social action litigation before the Indian Supreme Court in the eighties
becomes decipherable, both at the surfac e and deep structure levels of
30
analysis. Neither the liberal, nor the instrumentalist analysis — of the
Namboodripa d or the Hidayatullah variety — promise such an understanding.
Th e history of law as adjudication in the bourgeois legal systems is a
history of paths of development of a relatively autonomous judicial role,
both at the levels of fact-finding and law-finding. Th e confused and confusing
ideologically noisy debates concerning th e problematic of judicial review
(whether justices ought to "make " law or follow the "will of the legislature"
whether justices are "deputy " legislators or deputy to legislators etc.) bears
31
an eloquent testimony to this fact.
Perhaps, Chief Justice Hidayatullah was making a political point. If so,
he made it poorly. He was telling off the former Chief Minister of a State,
and through him, all leading politicians: "Look , what can we the Justices
do if you don't enact 'progressive' laws? What can we do but implement
reactionary and regressive laws if you keep enacting these? "
Th e underlying point is different. Ther e are historical conditions when
the relative autonomy of adjudication is eclipsed or eliminated altogether,
where it is impossible fo r judges to act as judges. Such are, fo r example,
situations of fascism or absolutism. In such situations, the judiciary does
become "a n evil adjunct " of the absolute power claimed by an el supremo,
where the legislature is also a facade. Even in such context individual justices
121
as huma n beings have a choice of heroically struggling from the seat of justice
to ameliorate the rigours of tyranny and to delegitimize the regime. And in
so doing expose themselves to gallows or gas chambers. But justices as a
strata, as a group, may, in such conditions, be nothing more than "evil "
adjuncts. History does not disallow judicial martyrdom; but history also
records few such martyrs.
Adjudicatory occasions where justices of the Supreme Court have to
read Marx and Engels occur but rarely in the liberal capitalist democracies.
Even as we salute Chief Justice Hidayatullah for his interpretive courage,
we have to acknowledge that no serious reading is possible when we read
as we run. Krishna Menon, Namboodripa d and Hidayatullah conducted an
authoritative dialogue on what they imagined to be "Marxism. " A polite
dialogue, reminiscent (if we substitute Marx for Michaelangelo) of T. S.
Eliot's (even if sexist) refrain :
Where women come and go /
Talking of Michealangelo.
REFERENCE S
1. Sec fo r the full text note 2, Chapter 1, supra.
2. See U. Baxi, "Taking Suffering Seriously: Social Action Litigation Before the
Supreme Court of India," in Law and Poverty: Critical Essays 387 (1988;
TH E LAW AS A TOOL: TH E TYRANN Y OF A METAPHO R 29
U. Baxi ed.; despite the same title this article represents an expanded version of
the original published in 8-9 Delhi L Rev. 91, 1979-80 and elsewhere); Id. The
Indian Supreme Court and Politics (1980); Id.. Courage, Craft and Contention:
The Indian Supreme Court in Mid-Eighties (1985).
3. See eg.. George H. Gadboi s Jr., "Supreme Court Decision making," 10 Banaras
L. J. 1 (1974); Id. "Indian Supreme Cour t Judges: A Portrait" III Law & Society
Review 317 (1968-1969).
4. K. Marx and F. Engels, "Manifest o of the Communist Party" in K. Marx and
F. Engels, 1 Selected Works 110-111 (1969).
5. On the modes of legal and extra-legal repression, see U. Baxi, "Violence, Dissent
and Development." in Law and Social Change: Indo-American Reflections 72
(1988; R. Meagher ed.).
6. See Max Weber on Law in Economy and Society 5, 13 (1967: E. S. Shils & E.
Rheinstein eds.).
7. P. Anderson, Lineages of the Absolutist State 407 (1979).
8. See Chapter V infra and the materials there cited.
9. See Y. Ghai et. al, The Political Economy of the Law: A Reader in Third World
Jurisprudence (1988).
10. N. Poulantzas, Fascism and Dictatorship 322 (1974)
11. Id. at 323-324.
12. Cf. H. Collins, Marxism and Law 87-93 (1982).
13. See Balbus, Marxism and Domination 87-93 (1982). Balbus quotes the Communist
Manifesto inaccurately when he excerpts the statement that "th e modern state
is but a committee for managing common affairs of the whole bourgeoisie". The
crucial prefatory words are : The executive of the modern state.... etc.", (see
text accompanying note 4 supra). Th e omission of the 'executive' is crucial; it is
doubtful, to say the least, that Marx or Engels identified the State with the
executive only.
14. Id. at 90-91.
15. Ibid.
16. See e.g.; G. Erosi, Law Groups. The Roads to Legal Development (1970; O.
Bihari, The Constitutional Models of Socialist Organizations (1979).
17. I Capital 283 (Progress Publishers, Moscow)
18. Id. at 225.
19. Ibid.
20. I Capital at 285-286.
21. (1979; W. Weaver trs.) Th e heroic travails of Alexander Ponagoulis show how
the practice of torture — a tool — can boomerang on tormenters.
22. See, fo r text and critical evaluation, Gayatri Chakravorty Spivak, In Other World;
Essays in Cultural Politics 179-196 (1987).
23. K. Marx and F. Eigels. I Collected Works: 1835-1843 at 165-166 (1975).
24. Id. at 166.
25. See for this notion. J. Stone. Legal Systems and Lawyers Resonnings 246-48 (1964).
26. See N. Poultantzas, Political Power and Social Classes 597-98 (1968); A. Giddens,
The Class Structure of Advanced Societies. (1973); E. O. Wright. Classes (1985).
27. Madras Gymkhana Club Employees Union v. Gymkhana Club (1967) II Lab.
L.J. 720. 728-29 SC . (per Hidayatullah J.)
28. Bangalore Water Supply & Sewerage Board v. Rajappa (1978) S.C.C. 248.
29. A. Gramsci Selections from the Prison Notebooks 181 (1971; Q. Hoare & G.
Nowell Smith ed.).
30. See supra note 2.
31. See e.g. R. W. Dworkin, Taking Rights Seriously 79-139 (1977); Id. A Matter
of Principle 119-145 (1985); The Law's Empire (1986); John H. Ely, Democracy
MARX.
and Distrust (1980). See also LAW
U. Baxi
AI\DCourage.
JLSTLCilCraft and Contention: The Indian
Supreme Cour£ in lite o·igluies (1985; and U. Baxi , "On How "lot to Judge the
Judges: '<otes Towards the Evaluation of the Judicial Role" 25 .J.I.L.I. 211
( 1983); ld. "On the Problematic Distinction between 'Legislation' and 'Adjudi-
cation': A Forgotten Aspect of Dominance" 12 Delhi L. Rev. 1-15 ( 1990).
 Chapter 3
THE MATERIALIST THEORY OF LAW: LAW AS
SUPERSTRUCTURE AND THE LAW AT THE BASE
A . TH E TOPOLOGICA L METAPHO R
Th e tyranny of metaphors does not end with the notion that the law is a
'tool' of the ruling classes. It persists, even more remarkably, with the more
pervasive topological metaphor of the "base " and ' superstructure." What
might be called the materialist theory of law, shorn of all rhetorical comple-
xity, consists in view that the law is 'determined' by the economic structure.
This is the strong version of the materialist theory of the law, often called
the 'determinist' theory. A weak version suggests that the 'law' is not so
much 'determined ' as 'conditioned' by the economic structure. In both these
versions, the economic structure provides the 'base' and the law gets repre-
sented as 'superstructure.' Both the versions of the materialist theory approach
to the law (alongside with politics, culture, ethics and related 'non-productive'
realms) find their powerful expression in the following oft-quoted passage
in the Preface to a Contribution of Political Economy:
122
Th e general result at which I arrived and which, once won, served as a
guiding thread of my studies can be briefly formulated as follows: In
the social production of their life, men enter into definite relations that
are indispensable and independent of their will, relations of production
which correspond to a definite stage of development of their material
productive forces. Th e sum total of these relations of production consti-
tutes the economic structure of the society, the real foundation, on
which rises a legal and political superstructure and to which correspond
definite forms of social consciousness. Th e mode of production of
material life conditions the social, political and intellectual life process
in general. It is not the consciousness of men that determines their
being, but on the contrary, their social being that determines their
consciousness. At a certain stage of their development, the material
productive forces come in conflict with the existing relations of produc-
tion or — what is but a legal expression for the same thing — with the
property relations within which they have been at work hitherto. From
MARX, LAW AND JUSTI C E
forms of development of the productive forces these relations turn into
their fetters. Then begins an epoch of a social revolution. With the
change of the economic foundation the entire immense superstructure
is more or less rapidly transformed. In considering such transformations
a distinction should always be made between the material transfor-
mation of the economic conditions of production, which can be deter-
mined with the precision of natural science and the legal, political,
religious, aesthetic or philosophic — in short, ideological forms in which
men become conscious of this conflict and fight it out. 1
A rapid reading, and indefatigable reiteration, of this seminal passage
by th e leading First World authors (especially of treatises on jurisprudence)
has deprived generations of students from any worthwhile access to Marx's .
Marxian and Marxist thought on law and society. Did not Mar x clearly
2
say in this passage that the law is a part of the superstructure? An d that
the base conditions, and often determines, th e superstructure? Wa s not the
dependency of the law here affirmed and celebrated? If so, the law cannot
be of much relevance in understanding and promotion of social change
since it is not an autonomous social force. 3
But the deeply problematic nature of either version of the materialist
theory of law is manifest in the colonized societies. Th e Indian legal experi-
ence, like that of many ex-colonial societies, is, suggestive of deep, extra-
ordinary inversions. The legal system introduced by the British imported
bourgeois relations of property; but it was not "accompanied by th e deve-
lopment of capitalistic relations of production in agriculture." Indeed, the
4
"legal system and property relations actually hindered the development of
capitalist relations in agriculture, given the context of colonialism." Th e
5
base neither 'determined', nor 'conditioned,' the superstructure of colo-
nial law in India. (But if it did, it was the 'metropolitan* base of
the English society !) Marx who wrote extensively concerning th e British
Rule in India was deeply aware of this inversion. No matter how it is
explained, the colonial experience is suggestive of the possibility that a rapid
reading of Marx, rather than anything Marx and Engels themselves said,
enhances the seductive simplicity of th e topological metaphor.
Carefully read, what Marx is, in the above quoted celebrated passage
saying, is as follows:
(i) men enter into definite relations of production;
( ii ) these relations of production correspond to a definite stage of deve-
lopment of the material productive forces;
(iii) the economic structure of society is constituted by these relations of
production;
(iv) individual human beings "enter " these relations which are "indis-
pensable" and which exist independently of their individual wills;
(v ) the economic structure provides the foundation;
 T H E M A T E R I A L I S T THEOR Y O F LA W 33
(vi) it is on this foundation that certain superstructures arise;
(VII) the superstructure — legal and political — represents forms of con-
sciousness which correspond to the economic structure;
(VIII) this (vii) must happen because human consciousness is determined
by economic structure ("social beings" come into being as conse-
quences of "economic structure") ;
(ix) at a certain stage of development, the material forces of production
come into conflict with the relations of production;
(x) the relations of production are the same thing as property relations,
that is they are juristically articulated as such, as if they were the
same;
(xi) when the productive forces reach a certain level, the production
relations appear as fettering these forces;
(xii) this last causes a "social revolution;" that is a transformation of the
economic foundation;
(xiii) when this (xii) happens, the entire superstructure also gets trans-
formed;
(xiv) in studying such social transformation, distinction ought to be mad e
between material transformation of the economic means of produc-
tion and the changes in the superstructure: the former can be analy-
zed with precision of natural science methods, the latter cannot be
so studied.
123
What constitutes the "base, " the "infrastructure? " Th e answer must be:
it is the totality of the social relations of production which constitute the
economic structure [propositions (iii) and (v).]. The material forces of pro-
duction do not constitute the base; this is simply because these forces are in
no sense relations, because if they were a part of the economic structure it
would not make sense to say, as Mar x clearly does, that they "correspond "
and because finally, production relations are economic in character whereas
the same may not be said about productive forces (these latter may be
6
appropriately called technological). Marx acknowledges this clearly when
he observes: "Machinery is no more an economic category than a bullock
7
that drags the plough. Machinery is merely a productive force."
This takes us to the question: what does Marx mean by "superstructure? "
Proposition (vii) is one possible answer: that is, superstructures are forms
of social consciousness and organization which arise out of infrastructures
and are determined by these. In some senses, then, looking at examples Marx
uses (politics, law, religion, philosophy), one can say that the superstructures
8 15
are non-economic institutions?
This, in turn, requires us to understand what is "economic." It appears
9
that the economic for Marx has to do with production. There cannot be any
production without means and instruments of production namely, capital and
labour. There cannot be any consumption, exchange or distribution without
production. Production means production at a definite stage of development
34 MARX, LAW AN D JU ST IC E
10
and it always means production by social individuals. Clearly, then, anything
which does not directly or indirectly bear on production, in the general and
particular sense, is "non-economic". "Non-economic " does not mean "non-
important " for Marx : it simply means that the non-economic is a structure
of activity, agencies, institutions outside the realm of production.
What are relations of production? Ar e they the same as property rela-
tions? If there is no difference between the two, how can the law said to be
superstructural? Or, in other words, "if the economic structure is constituted of
property (or ownership) relations, how can it be distinct from the legal
11
superstructure that it is supposed to explain?" This is the first set of ques-
tions which looms large in any grasp of "base/superstructure " imagery.
It is only when the two types of relations can be distinguished that the
question of relation between the two arises. What is the nature of relationship
between the "base " and the "superstructure?" What may one mean when
it is said that the base "determines" the superstructure, or "conditions" it?
Three approaches to this puzzle have been proposed in the recent years.
One approach insists that Marx clearly identified relations of production
with property relations; hence, the law is at the base as well and cannot be
12
regarded as superstructural. Another approach finds a way of reading Marx
in a rechtsfrei manner ensuring that the distinction between the economic
structure and the law is so maintained that the character of the law is explain-
13
ed by the character of the economic structure. A third approach does not
read Marx in a rechtsfrei manner but posits a series of dislocations between
14
the social relations of production and their legal expression. Each of these
three approaches, distinctively, enables us to grasp Marx's and Marxian
understanding of the law.
B. TH E EQUIVALENC E THESI S
Logically, one may distinguish between relations of production and
relations of property. But the distinction must not be a distinction without
difference. If it is, both relations ar e identical; and the materialist view
of the law either in its strict or relaxed version becomes insensible. For,
if the relations of production and relations of property are equivalent, it
becomes nonsensical to say that the one 'determines' or 'conditions' the
other simply because the one is the same as the other, no matter how
differently expressed.
John Plamentaz acknowledges the analytical possibility of two kinds
of relations: "relations actually involved in the production " and "relations
for which the need arises because there is production." Th e first (e.g. co-
operation in production) are properly called relations of production. But
why, he asks, do Marx and Engels describe the second kind of relations as
being the legal expressions of the relations of production? He points out
that except where "they are defining them, Marx and Engels speak of relations
of production as if they were the same as relations of property." "Why not
 TH E MATERIALIS T THEOR Y O F LAW 35
just call them property relations", he asks donnishly, "an d have done with
18
it?" He suspects that Marx and Engels are up to some mean definitional
trick: they maintain this distinction because they want to exclude the law
from the totality of relations of production which, fo r them, constitutes th e
17
economic structure of society.
Plamentaz not merely finds this irritating and untidy. More important,
he feels that the whole idea of the economic structure determining the law
is mischievous and misleading. This is so because the system of property,
18
he says, "ofte n has great influence on the form of production." Indeed,
Plamentaz maintains that Marx's account of the rise of capital in the first
volume of the Capital shows him "admittin g readily enough that property
19
relations have powerful influence on productive methods." From this, he
arrives at the conclusion that the "determinist " thesis really should stop
to consider "wha t it is about the type of production which makes it specifically
capitalist except in terms of the relations of property which we say ar e
20
determined by it."
In other words, Plamentaz turns Marx upside down on the issue of base
and superstructure. What is really being said is that it is the relations of
property as expressed by the law which determine the economic structure,
21
not the other way round. Th e implicit suggestion, breath-taking though it is,
is that Marx is just plain muddled; poor chap, he caused us all this confusion
by talking about relations of production when he meant, or should have
124
meant, to talk merely about legal relations of property ! (Of course, while
saying that he is muddled, Plamentaz also keeps saying in the same breath
that Marx simply could not have been so muddled!)
Even an acute mind like John Plamentaz is unable to see that Marx
could not be guilty of such childish confusion. It is true that Mar x uses
legal language in describing modes of production. He does so because it is
convenient, not because he is muddled. Can Plamentaz (o r any one of us)
formulate even hypothctically a description of any mode of production
which would avoid conceptions like "property, " "ownership, " "possession,"
"contract, " "crime " etc.? Th e use of notions prevalent in the realm of th e
law is simply indispensable if one is to talk of production. Marx makes
this clear in Grudrisse: "All production is an appropriation of nature on
the part of an individual within and through a specific form of society." In
this sense it is a tautology to say that that property (appropriation) is a
22
"precondition of production." Again: " . . . there can be no production and
hence no society where some form of property does not exist is a tautology.
An appropriation which does not make something into property is a
23
contradictio in subjecto."
Similarly, Marx recognizes quite explicitly that protection of property
(appropriation ) is essential to any form of production: "every form of
production creates its own legal relations, form of government etc." He adds :
In bringing things which are organically related into an accidental
36 MARX, LAW AN D JU S T I C E
relation, into a merely reflective connection, they [bourgeois thinkers]
display their crudity and lack of conceptual understanding. All the
bourgeois economists are aware of is that production can be carried
on better under the modern police than e.g. on the principle of might
makes right. They forget only that this principle is also a legal relation,
and that the right of the stronger prevails in their "constitutional
24
republics' as well, only in another form.
The "organic relation," which is converted by bad bourgeois thinkers
into an "accidental relation" is precisely the relation between relations of
production and relations of property. Th e latter organically grow out of
the former. The relationship may be now explained thus : 'n o society without
production; no production without appropriation, no appropriation without
property; and no property without adequate protection fo r it.' It is then
out of the nature of production flows the nature of appropriation; and out
of the nature of appropriation flow legal relations which promote and
protect it.
Plamentaz is right to stress that property relations are "relations which
arise because production has need for them. " That is, indeed, the very
meaning of an "organic relation." He is right to o when he stresses that :
"except when they are defining them, Marx and Engels nearly always
speak of relations of production as if they were the same as relations of
25
property." As if they were the same; not that were th e same — this indeed
is the distinction.
Bases do 'need' certain types of superstructures. So they orga-
26
nically create these. Or these simply organically arise. Legal systems do
not create economic structures; legal systems arise from economic structures.
Marx made this point eloquently in his address to the jury at the trial of
Rhenish Democrats:
Society is not founded upon the law; this is a legal fiction. On the
contrary the law must be founded on society, it must express the
common interests and needs of the society — as distinct from the
caprice of the individuals — which arise from the material mode of
production prevailing at the given time. This Cod e Napolean, which
I am holding in my hand, has not created the modern bourgeois society.
On the contrary, the bourgeois society, which emerged in the eighteenth
century and developed furthe r in the ninteenth, merely finds its legal
expression in this Code. As soon as it ceases to fit the social conditions,
it becomes simply a bundle of paper. You cannot mak e the old laws
the foundation of the new social development, any more than these
27
old laws created the old social conditions.
C. RECHTSFREI APPROACHE S
Th e second approach seeks to disengage the relations of property from
 TH E MATERIALIS T THEOR Y O F LAW 37
a description of the relations of production. G. A. Cohen has endeavoured
to do precisely this by formulating "non-legal interpretation of legal terms "
and by representing property relations "a s distinct from, and explained by,
production relations." Cohen successfully shows that it is possible to
28
describe production relations as "relations of effective power over persons
and productive forces " without reference to legal rights and duties. He
simply uses the concept of effective power, defined as an ability in a
person to influence and control the behaviour of another person. For example,
a slave and a wage labourer can be differentiated in terms of the fact that
the latter is the owner of the labour-power whereas the former is not. To
avoid legal connotations of ownership, Cohen would translate the distinction
as follows in terms of power : "th e proletarian has the power to withhold
his labour power, the slave does not." Th e slave does not have this
29
power because if she withheld from work, she will be killed; whereas the
proletarian may ' withhold his labour power fro m a given capitalist, includ-
ing his current employer, without fear of death." Cohen thinks that in this
30
manner one can altogether excise "legal terms from the description of
production relations."
31
He also points out that production relations may often be founded
without any legal basis or sanction as when "a conquering army might
subject a defeated peasantry to new production relations, by enforcing a
set of decisions which have no legislative or other legal backing." Support
32
of the law may be acquired once "th e relations have endured fo r certain
125
period." In this situation clearly production relations precede and also
33
determine legal relations. This feature is peculiar to the transitional modes
of production. But Marx himself suggests that element of power — the
"right of the stronger" also prevails in "constitutional republics" in another
form."34
In other words, the reference to "property, " "ownership " and "right "
in Marx's description of relations of production can be shown to have no
relation whatever to legal or juridical relations of property as such. Relations
of property when used in the context of the relations of production are
different from juridical relations. Put another way with Goran Therborn
the most significant aspect of 'capitalist' relations of production is not
private property (even in a non-juridical sense) but the rule of capital,
the 'determinant production relation' of the capitalist mode of pro-
duction. "
D . DISLOCATEDNES S O F TH E JURIDICA L RELATION S O F
PROPERT Y
Etienne Balibar has disentangled relations of production from relations
of property without the rather wearisome analytical exercises of making
Marx's texts rechtsfrei. This is achieved by a method of "looking fo r the
38 MARX, LAW AN D JUSTIC E
relations of production behind the legal forms, or better: behind the second-
ary unity of production and law which has to be disentangled." This task,
36
as noted before, is forbiddingly complex because the concepts articulating
relations of production ar e "precisely concepts in which the economic and
legal are indistinct." The concept of property is one such cardinal concept.
37
But, Balibar highlights, the concept of property, in the relatively autonom-
ous sphere of production is quite different from the law of property. 38
There are at least four distinct, though related, features of property
compared with the law of property.
First, capitalist legal systems are distinctive in their "abstract univer-
salistic character" which "distributes the concerete beings which can sup-
port its functions" between the category of human beings and of things. 39
In law, there is no diversity between persons "wh o are all or can all be
owners and contractors." Nor is in the law a diversity between things since
all things are or can be property, whether "they ar e the means of labour
or means of consumption and whatever the use to which this property is
put."40
In contrast, the capitalist social relations of production are not based
on "th e indifference to things .. . but on an appreciation of their differences,"
what is "significant, from the standpoint of capitalistic production relations,
is the ownership of the means of production." A determinate (structural)
41
specificity of the production relations is here in contrast with the univer-
salistic and abstract character of the law.
Second, and related to the first, the legal property (the right to
property) is "a right of consumption of any kind"; the economic "ownership
of the means of production" is "th e power to consume them produc-
tively . . . " In other words, the legal property, in general, is a set of entitle-
ments to use, enjoy, alienate, and even squander, economic property has
42
(depending on (a) its "material nature " and ( b ) its "adaptatio n to the
conditions of the labour process) to serve as a "mean s of appropriating
surplus labour."43
Third, the capitalist relations of property (between 'persons' and
'things') typically articulated themselves as the law of property (relations
between 'persons' and 'things') and the law of contract (relations between
persons). Th e law of labour, thus, is essentially the law of contract. This,
however, is not the case from the standpoint of the economic structure,
where the "ownership of the means of production and productive wage
labour define a single connexion, a single relation of production." 44
Fourth, and fundamentally, the relations of property are relations
between individual persons (or the subjects of legal order) ; the relations
of production are inherently class relations. The relations of production
determine the distribution of means of production; they "institute .. . a
necessary relation between each individual of one class and the whole of
the opposing class." The relations of property define rights of individuals;
45
the relations of production define power over the means of production
 TH E MATERIALIS T THEOR Y O F LAW 39
(and reproduction) for social classes. The relations of production appear,
46
accordingly, as the relations between "thre e functionally defined terms:
owner class/means of production/class of exploited producers." 47
At each of these four levels then there is dislocation or non-corres-
pondence between the relations of production and the relations of property.
This is the reason why the law must be 'distinct, and second in order of
analysis to the relations of production." 48
Balibar's analysis not merely elaborates critical distinctions between
the relations of production and of property but also underscores the
class/collective nature of the former. This is more than an exercise, a la
Cohen, in a rechtsfrei translation of "rights " into "power " statements;
it illuminates the nature of this power. Further, Balibar's analysis stressing
dislocation between the law and the economic structure enables ways of
articulating a relative autonomy of the law as well of the economic structure
from the superstructures. Even when the law is "second in order of analysis
to the relations of production " it is "distinct," and carries the potential of
affecting the relations of production. In this respect, Balibar's analysis
keeps us closer to what Marx really thought about the nature of the law
as an instance (level or region) of the superstructure.
D . TH E MATERIALIS T "CONDITIONING " O F TH E LA W
126
Since it is analytically possible to disengage the relations of production
from the relations of property, the question of the impact of the one over
the other arises. On e way to read the passage from Marx quoted at the
beginning of this Chapter is to take literally the idea that Marx suggested
that the noneconomic superstructures are determined by the economic struc-
tures. It has been suggested that the German word bedirgden means both
'determine' and 'condition' and the meaning we pick makes all the difference.
49
Both in terms of exegesis of this seminal passage and in terms of a sensitive
grasp of Marx' s own corpus, it would be cavalier to persist in attribution of
any crude deterministic bias to Marx.
50
At many key points in their writings Marx and Engels themselves raise
doubts concerning the so-called 'determinist thesis.' In volume III of the
Capital, discussing the genesis of capitalist ground rent, Marx writes:
It is .... clear that . . . it is in the interests of the ruling section of the
society to sanction the existing order as law and to legally establish its
limits given through usage and tradition. Apart from all else, this, by
the way, comes about of itself as soon as the constant reproduction of
the basis of the existing order and its fundamental relations assumes a
regulated and orderly form in the course of time. And such regulation
and order are themselves indispensable elements of any mode of produc-
tion, if it is to assume social stability and independence from mere
arbitrariness change and ... 51
40 MARX, LA W AN D JUSTI C E
An d in the Grundrisse, Marx is clear about these "indispensable elements"
fo r all modes of production :
Property, then, originally means — in its Asiatic, Slavonic, ancient classi-
cal, Germanic form — the relation of the working (producing or self-re-
producing) subject to the conditions of his production or reproduction as
his own. It will therefore have different forms depending on the condi-
tions of this production. Production itself aims at the reproduction of the
producer within and together with these, his objective conditions of
existence.52
Both these passages suggest, as it were, a dilaectical relation between
the law as superstructure and the economic system. Th e latter needs to be
reproduced as a going concern across time. Even when initially the base may
(a s noted earlier) generate the needed superstructures of the law, the latter
themselves assume the function of critical determinants of the reproduction
of the economic structure over time. What may be isolated in the moment
of production (at a given point of time) as a superstructure functional to the
base, and determined by it, begins to exert in the moment of the reproduction
of the "objective conditions of existence" a determinating role. Th e law
becomes in this moment of reproduction an "indispensable" element to the
mod e of production. At different moments, then, the law presents the profile
of a determined instance as well as of a determining instance. We revist this
theme towards the end of this section.
Once we reject crude determinism, two alternative approaches arise for
analyzing the nature of relationship between the 'base' and the 'superstruc-
ture.' One may simply say that the law (as an aspect of the superstructure)
is conditioned by the economic structure. Th e other is to say that the base
still "determines " the superstructure, not in a casual, linear way but in the
last instance.
On the first aspect, no matter what Marxists may say, Mar x himself
was clear that superstructures may be relatively autonomous inter se and in
relation to the base. In the Grundrisse, Marx explicitly raises the problem
of the relative autonomy of arts; arts blossom, often out of "all proportion
to the general development of society" and its "material foundation." 53
Mar x is quick to point out that the material foundation affects arts. Th e
foundation of Greek art was the Greek mythology ("natur e and social forms
already reworked in an unconsciously artistic way by the popular imagina-
tion"); but "social development" may exclude all mythological relations
54
to nature. This may, in turn, demand of an artist "a n imagination not depen-
dent on mythology." Technology too may affect the arts and artists. Marx
55
asks acutely:
[i]s Achilles possible with powder and lead? Or the Iliad with the printing
press... ? Do not the song and the saga and the muse necessarily come
 TH E MATERIALIS T THEORY O F LAW
to an end with the printer' s bar, hence do not the necessary conditions
of epic poetry vanish? 50
So, the base conditions the superstructure. But not in ways which erode the
relative autonomy of the superstructure. Marx describes this as a "difficulty."
It is not difficult to see that the Greek arts and epic are "boun d up with
certain forms of development." What is 'difficult' is to understand why
"they still afford us artistic pleasure and that in a certain respect they count as
norm and as an unattainable model." This is difficulty in accounting for the
57
proposition that base conditions superstructures, and in delineating the nature
of the relative autonomy of the superstructures.
Marx pointed out a similar difficulty in relation to the law, which like
arts, poses a problem of "uneven development of material production" relative
to the superstructure. In a highly condensed remark he says:
But the really difficult point to discuss here is how relations of production
develop unevenly as legal relations. Thus, e.g., the relation of Roman
private law (this is less the case with criminal and public law) to
modern production.
58
Unlike the historical school of law — a school, Marx witheringly remarks,
to which "history only shows its posterior as the God of Israel did to his
127
servant Moses" — Marx does not conceive this problem in terms of the
59
"reception " of the Roman law. Th e problem is formulated as one concerning
the relative autonomy of superstructures.
Th e candid acknowledgement of "difficulty" of understanding "ho w
relations of production develop unevenly as legal relation" testifies to the
difficulty in satisfactorily articulating the relative autonomy of the law as
superstructure. Engels is reduced to saying in the face of this difficulty that
Roman law "th e consummate law of simple .. . pre-capitalist commodity
production .. . however included most of the legal relations of the capitalist
period." However! Th e task is to develop an an explanation of how if the
60
base conditions the superstructure, the Roman private law came to so vitally
prefigure the principles/relations of property law of supreme relcavance and
use to early capitalistic society.
Th e Marx of Capital has an answer to the difficulty of the Marx of the
Grundrisse. Th e social relations of production are encapsulated within the
act of exchange and the 'laws' of exchange. "So long as the laws of exchange
are observed in every single act of exchange the mode of appropriation,"
observes Marx, can be "completely revolutionized without in any way affect-
ing the property rights which correspond to commodity production." In 61
other words, the abstract universalistic character of the law as superstructure
is conditioned by the social relations of exchange: both the Roman private
law and the law of the rising capitalism are based on exchange relations.
But the actual, real, life the operation of exchange relations is cataclysmically
41
42 MARX, LAW AND JUSTI C E
transformed in the era of capitalist expropriation. This transformation is
vividly highlighted by Karl Renner (once we ignore in the passage quoted
below the reference to the neutrality of law) :
Th e kind of subject matter which is the object of the property norms
is irrelevant to the legal definition of property. One object is as good
as the other. Th e norms which make up the institution of property are
neutral like an algebraic formula, for instance the formula of acceleration.
But if one factor in this formula of acceleration is the avalanche, every-
body is crushed, and if one factor in the property norm which makes a
person the owner of a thing, is the machine, generations are devoured.
The development of machinery abolished the technical foundation for
the division of labour which manufacture had brought about. 62
Th e dynamic of capitalistic appropriation conditions the dynamic of
legal development as well. Production is a "continuous process," "connected
whole," 'flowing on with incessant renewal.' Every "social process of
63
production is, at the same time a process of reproduction". And "condi-
64
tions of production are also those of reproduction;" if "production be capi-
talistic in form, so, too, will be reproduction." Capitalistic process of
65
reproduction produces "no t only commodities, not only surplus value, but
also produces and reproduces the capitalist relation; on the one side the
capitalist, one the other the wage labourer." A French text puts the
66
matter even more sharply when it adds that the capitalist reproduction "also
produces and eternalizes the social relation between the capitalist and the
wage-earner." As we noted earlier, Marx writes in the Grundrisse that
67
it is the aim of production to reproduce "the producer, and .. . his objective
conditions of existence." 68
Th e same laws of exchange apply in reproduction. Th e act of exchange
is an exchange of equivalents. Th e law of exchange "requires equality only
between exchange values given in exchange for one another." But when
69
wage-labour becomes the basis of commodity production, the process, even
of simple reproduction, unfolds its "hidden potentialities." An analysis
70
of reproduction discloses that the exchange involved is not an exchange of
equivalents; rather, it is "apparent exchange," a "mer e semblance pertaining
to the process of circulation," a "mer e form foreign to the real nature of
the transaction, and only mystifying it." What really happens under the
71
semblance of exchange is recurring appropriation "without equivalent, a
portion of the previously materialized labour of others " and its exchange for
"a greater quantity of living labour." The right of property, once thought
72
to be based on a man's labour, now turns out to be the "right, on the part of
the capitalist, to appropriate the unpaid labour of others or its product
and to be the impossibility, on the part of the labourer, of appropriating
his own product." It is thus that the "separation of labour has become the
73
necessary consequence of a law that apparently originate in their identity." 74
 TH E MATERIALIS T THEOR Y O F LAW 43
"I n reality," Mar x concludes, "th e labourer belongs to capital before he has
sold himself to capital." 75
Th e process of reproduction cannot leave the law behind. Th e law too
has to be reproduced, if the reproduction of the producer with "hi s objective
conditions of existence" has to be achieved. Th e reproduction of law
would appear to be essential to the reproduction of capitalism. In a sense,
reproduction entails "th e permanence of non-economic conditions of the
production process, notably the legal conditions . . . " If reproduction
76
destroys the appearance of exchange relations, based on just equivalence
and free contract, reproduction of the law requires improvisation in its forms
and ideologies justifying and enforcing domination. Th e need fo r "main-
tenance and reproduction of the working class" generates distinctive law
and stale interventions.
77
Marx himself in his analysis of Ten Hours Law notes that the "unnatural
extension of the working day " shortens "th e life of the individual labourer
and therefore the duration of his labour-power;" the rapid consumption of
labour-power requires equally rapid replacement and higher costs for "th e
reproduction of labour-power." It is this "werewolf's hunger for surplus
78
power" which caused "capital at last to be bound by chains of legal regula-
tions." Th e interest of capital itself entails a limitation of the working day."
79
(Of course, this analysis marches with a rival one stressing that the creation
of the normal working-day is the "produc t of a protracted civil war " between
the capitalist class and the working-class).
128
81
Similarly while describing the factory legislation as a "first and meagre
concession wrung from capital" and demonstrating the "hesitation, the
82
repugnance and the bad faith " in implementation. Marx still hails the
83
legislation as
first conscious and methodical reaction of society against the spontane-
ously developed form of the process of production, is, . . . , just as much
a necessary product of modern industry as cotton-yarn, self-actors and
the electric telegraph, 84
In other words, Capital offers us striking illustrations of how forces and
relations of production 'condition' the law. Many contemporary analyses
of legal history also reiterate this conclusion. Indeed, a generalization seems
85
possible as G. Eorsi has massively demonstrated. "Each mode of production,
each economic structure has its corresponding law-type." 86
E . TH E IMPAC T O F SUPERSTRUCTUR E O N TH E BASE?
If the base 'conditions' superstructure thus, does the law — a super-
structural instance—i n turn affect the economic structure at all? Marx was
aware of the possibility. In acknowledging that in certain historical situations,
production may be 'determined' by distribution, he says:
44 MARX, LAW AN D JUST I C E
A conquering people divides the land among the conquerors, thus
imposes a certain distribution and form of property inland, and thus
determines production. Or it enslaves the conquered and so makes slave
labour the foundation of production. Or as a people rises in revolution
and smashes the great landed estates into small parcels, and hence by
this new distribution, gives production a new character. Or a system of
laws assigns property in land in certain families in perpetuity, or distri-
butes labour [as] a hereditary privilege and thus confines it within
certain castes. In all these cases, and they ar e all historical, it seems
that distribution is not structured and determined by production, but
rather the opposite, production by distribution.87
The three exceptional situations mentioned above are conquest, revolu-
tion and tradition. Each of these may contribute to the law conditioning the
economic structure by influencing the distribution of the means of production.
Marx is also aware that the law may affect production:
Laws may perpetuate an instrument of production, e.g. land, in certain
families. These laws achieve economic significance only when large
80
scale landed property is in harmony with the society's production . . .
But can laws perpetuate the small-scale allotment? Despite these laws,
the ownership is again becoming concentrated. The influence of laws in
stablizing relations of distribution and hence their effect on production,
requires to be determined in each specific instance. 88
Marx is not wholly sure, in the foregoing quotation which way he should
conclude. In general, he acknowledges the preservative role of the law as
perpetuating certain instruments of ownership. While the law can protect
and promote large-scale property, Marx has clear doubts as to whether it
can perpetuate small-scale allotment in a capitalistic society. But he has no
general answer: the effect of law on distribution of means of production has
to be determined in each specific instance. Th e law may be constitutive of the
character of distribution in one case; it may be a consequence of social rela-
tions of production in other cases. There is in the recent times an impressive
corpus of historical analysis which shows that the law often, though in part,
shapes relations of production." 89
This is even more strikingly true with respect to transitional modes of
production. The transition from one mode of production to another requires,
as Balibar rightly says, a "differential analysis of the interventions of the
State, law and political power in the constituted mod e of production, and in
the phase of transition." In such phases "th e form s of law and state policy"
90
are not "adapted " to the economic structure but "dislocated " in relation to
it. Dislocation means non-correspondence between the economic structure
and the law as a domain of the superstucture. 91
For the Indian lawpersons, social scientists and philosophers, the non-
 TH E MATERIALIS T THEOR Y O F LAW
correspondence of the law with the economic structure cannot at all appear
as a new problematic. It is clear, for example, that of juridicial forms and
property relations the British law — its notions of rights in private property,
and enforceable contracts, — were externally imposed. These did not, in
92
any sense of the word, emerge "organically" out of the pre-colonial economic
structure. Nevertheless, the bourgeois property relations interacted with the
precapitalist mode to create a mixed mode of production, often described
(though not without contention) as a "colonial mode of production." The 93
question as to how the superstructure of property relations preceded changes
in the economic structure, finds its answer in the aphorism: Force is an
economic agent. In other words, it was colonialism which brought a drastic
94
reversal between the "organic relations" of the base and the superstructure.
No attempt at explaining the introduction of bourgeois legal relations within
Marx's base-superstructure analysis can provide a more compelling answer
than colonialism as a historic factor which generated dislocation and non-
correspondence between the economic structure and the superstructure of the
law. An d the fact has to be acknowledged that the law as a relatively auto-
95
nomous superstructure in societies with transitional and dual modes of pro-
duction has a fa r greater role in shaping production relations. 96
F . TH E "CONVERGENCE " THESI S
129
The thesis that the economic structure 'conditions' law as superstructure
encounters turbulence when we compare the law and jurispdudence of
societies in the First and Second Worlds at a roughly identical stage of deve-
lopment. Comparabl e societies in the First and Second Worlds are of course,
97
based on wholly opposed ideologies. If we assume bases of comparability of
economic structures, can we expect to find a convergence of the law in such
societies? Does an "identical level of production forces " involve "analogous
solutions in the bourgeois and socialist types of legal systems? Would, fo r
98
example, the law relating commodity production converge? 99
Gyala Eorsi insightfully argues that there exists a convergence between
the law of such comparable societies. But this convergence is not generated
by the identical nature of productive forces alone. Tw o other factors also
contribute to it. Th e fact that a socialist society is a transitional one, "in
transition from capitalism to communism," creates forces or tendencies
10 0
which, amon g other things, lead to juristic convergence. Similarly, the class
struggles in the advanced capitalist societies also tend to promote conver-
gence. Eorsi identifies five tendencies towards convergence in law generated
10 1
by the advanced socialist and capitalist societies:
(i) the divorce between ownership and management of large-scale enter-
prises;
(ii) growing state regulation and management of enterprise;
45
46 MARX, LAW AND JUSTI C E
(HI) new forms of associational/entreprenurial activities with the corres-
ponding legal institutions;
(iv) new forms of restitutory (compensatory) damage remedies and their
increased frequency, given the levels of industrialization generating
legal processes for distribution of risks in society;
(v ) the trend towards the recognition of equal rights of women.
102
Likewise, the transitional nature of socialist societies signifies that "commodity
production is maintained in present socialism." This leads to convergence,
10 3
at least at the level of forms, processes and techniques of legal intervention. 104
Indeed, even "socio-economic similarities" arise. "Ma n as a consumer has
not yet merged with man as worker and as citizen;" therefore, "th e difference
between personal ownership in socialist countries and private ownership of
consumer goods in western societies is hardly appreciable." Personal 105
"material interests" have also "evoked certain affinities between" the laws
of the two systems." Eorsi, however, maintains that this convergence of
10 6
laws should be appreciated in the context of bourgeois societies adopting
themselves to "production forces aspiring at socialism," and the context of
the "socialist society which has " not yet created productive forces of
communism." 107
Finally, class struggles also produce certain "phenomena in conver-
gence." The contribution of class struggles in capitalist societies is simply
108
that the "bourgeoisis tries to keep abreast of social conquest of socialism," 10 9
by a constant process of adoption of solutions "familiar to the environment
of social ownership hut not belonging to the essence of the latter." 110
Actually existing socialism is also not free of 'class struggles,' as the
recent events in Poland continue to demonstrate. Th e stratification is, of
course, not on the basis of ownership of the means of production. It is rather,
between "people and functionaries." The 'functionaries' manage state pro-
11 1
perty "not for profit on state's part" : what is at stake in such societies is
not, and has never been, "primarily surplus-value, but simply surplus
product." State property "as the domain of this politics . . . bureaucratic
112
and administrative power of disposal represents a relation of production
sui generis." It is in relation to the "concentrated property of the state"
113
that workers stand in a "proletarian " position. It may seem quite unusual
11 4
but, Bahro maintains, exploitation in the countries with actually existing
socialism, "is a political phenomenon, a phenomenon of distribution of
power." Th e political instance of course includes the legal. On e would
115
expect convergence in the methods of repression among the advanced capi-
talist societies and leading countries of actually existing socialism, just as one
would assume that 'class' struggles within the latter societies may lead even-
tually to adaption of First World legal ideas, processes and form s (e.g.
greater autonomy fo r workers' associations) without, of course, affecting
the sui generis relation of production.
Convergence, overall, does not signify a process of fusion of the two
 TH E MATERIALIS T THEORY O F LAW 47 48 MARX, LAW AN D J U S TI C E

systems. It does not lead to a dissolution of the "har d core " of capitalism
11 6
or socialism. Fo r the present purposes, it is sufficient to note that conver-
gence tends to reinforce the notion that while the material base conditions
law as superstructure, the law to o influences the base. Cross-cultural legal
borrowings/transplants are the order of the day. Th e adoption of Roman
law at the rise of capitalism was then not a unique instance. The limits to
convergence, the barrier of the "har d core " are clearly not limits arising out
of the development of productive forces but fro m ideology which is itself,
as we explore it later, "a n ensemble of material practices." 117
REFERENCES
1. K. Marx & F. Engels. V Collected Works 59 (1976: Progress Publishers: emphasis
added).
2. Even the more sophisticated works present totally misleading accounts, e.g. Stone,
Social Dimensions of Law and Justice 475-479; 400-495 (1966).
3. "If we suppose that law is no more than a mysitifying and pompous way in which
class power is registered and executed, then we need not waste our labour in
studying its history and forms. One Act would be much the some as another,
and all, from the standpoint of the ruled, would be Black" E. P. Thompson,
Whigs and Hunters: The Origins of the Black Act 267-268 (1975).
4. See U. Patnaik "Capitalist Development in Indian Agriculture: A Note'' 6 Eco.
& Pol. Weekly A-123 (1971); Id. "O n the Mode of Production in Indian Agricul-
20. Id. at 282.
21. Plamentaz urges that unless there are "already some rules supported by sanctions"
and especially "rules of property" it is simply impossible to explain "how society
comes to be divided into classes" Id. at 288.
22. K. Marx, Grundrisse 87 (1873; emphasis added).
23. Id. at 88.
24. Ibid.
25. J. Plamentaz, supra note 12 at 280.
26. G. A. Cohen, Karl Marx's Theory of History : A Defence 231 (1978). (This work
will be hereafter referred to by the author.)
27. K. Marx, "The Trial of the Rhonish District Committee of Democrats" in K. Marx
and F. Engels Articles From Neue Rheinische Zeitung: 1848-49, 235-236 (1977:
Progress Publishers.)
28. Cohen, at 219.
29. Id. at 222.
30. Id. at 223.
31. Id. at 222.
32. Id. at 224.
33. Id. at 224-225.
34. See text accompanying note 24 supra; and Cohen at 225.
35. G. Therbom , Science Class and Society 379-80 (1976).
36. L. Althusser & D. E. Balibar, Reading Capital 229 (1970). Hereafter cited as RC.
37. RC at 230. "It is difficult, firstly, to distinguish clearly between the relations of
production and their 'legal expression'; this very concept of expression is difficult,
too, once if no longer means duplication but rather articulation of two hetrogenous
instances; finally, so is the possible dislocation between the economic relations

130
ture: A Reply" 7 Eco. & Pol. Weekly A-145 (1972) P. Chattopadhyaya, "On and the legal forms." RC at 229.
the Question of the Mode of Production in Indian Agriculture" 7 Eco. & Pol. 38. RC at 230.
Weekly A-39 (1972). 39. Ibid.
5. See, U. Patnaik, 1971 article cited supra note, 4, at A-124 (emphasis deleted). 40. RC at 231.
6. G. A. Cohen, Karl Marx's Theory of History: A Defence at 28-31 1978). For 41. RC at 232 (emphasis added) .
further complexities in Marx's position see J. Elster, Making Sense of Marx 4a. RC at 232.
243-253 (1985). 43. RC at 233.
7. K. Marx, Poverty of Philosophy 149 (1847). 44. Ibid.
8. Sec supra note 6. 45. Ibid.
9. Sec K. Marx, Grundrisse at 85-88 (1973). 46. RC at 228.
10. K. Marx, Grundrisse 81-100 1973). 47. B. Oilman, Alienation: Marx's Conception of Man in Capitalist Society 7 (1971);
11. See G. A. Cohen, supra note 6 at 217. see also R. Williams, Marxism and Literature 83-90 (1977).
12. J. Plamentaz, 2 Man and Society 274-283 (1963). 48. RC at 229.
13. See G. A. Cohen, supra note 6, at 217-230. 49. See Oilman, supra note 48 at 259 n. 253.
14. L. Alithusscr & E. Balibar. Reading Capital 225-253 (1968). 50. See 1. Balbus, Marxism and Domination 21-36 (1982); M. Rader, Marx's Con-
15. J. Plamentaz, supra note 12, at 279. ception of History (1979).
16. Id. at 280. 51. III Capital at 793 (emphasis added).
17. Id. at 281. 52. Grundrisse at 495 (emphasis added).
18. Id. at 282. 53. Id. at 110.
19. Indeed, he goes as far as to suggest that: 54. Ibid.
There is no question . . . of the methods peculiar to capitalism being born in 55. Ibid.
the womb of feudal society and then gradually transforming it into a capitalist 56. Grundrisse at 111.
society as feudal relations of property, now become fetters on these methods, 57. Ibid.
give way to other relations in harmony with them. As Marx describes the 58. Grundrisse at 109.
transformation, capitalist methods of production could emerge only because 59. K. Marx and F. Engels III Collected Works at 177 (1975: Progress Publishers).
feudal relations of property were already giving way to others. There were no 60. Letter fro m Engels to Kautsky (26 June 1884) cited in RC at 229.
limbs to break the fetters until the fetters were broken. Id. at 281. 61. 1 Capital 550 (emphasis added) .
 THE MATERIALIS T THEOR Y O F LA W 49 48 MARX, LAW AN D JUST I C E

62. Karl Renner, The Institutions of Private Law and their Social Functions 112 20. Id. at 282.
(1949). 21. Plamentaz urges that unless there are "already some rules supported by sanctions"
63. 1 Capital 531. and especially "rules of property" it is simply impossible to explain "how society
64. Ibid. comes to be divided into classes" Id. at 288.
65. Ibid. 22. K. Marx, Grundrisse 87 (1873; emphasis added).
66. 1 Capital 542. 23. Id. at 88.
67. RC at 269. 24. Ibid.
68. Grundrisse at 495. 25. J. Plamentaz, supra note 12 at 280.
69. 1 Capital at 548. 26. G. A. Cohen, Karl Marx's Theory of History : A Defence 231 (1978). (This work
70. Id. at 551. will be hereafter referred to by the author.)
71. Id. at 547. 27. K. Marx, "The Trial of the Rhonish District Committee of Democrats" in K. Marx
72. Ibid. and F. Engels Articles From Neue Rheinische Zeitung: 1848-49, 235-236 (1977:
73. Ibid. Progress Publishers.)
74. Ibid. 28. Cohen, at 219.
75. 1 Capital at 542. 29. Id. at 222.
76. RC at 258. 30. Id. at 223.
77. RC 269-272. One for m of state and law intervention is the maintenance of patri- 31. Id. at 222.
archy - subordination and oppression of women—through the law and legal admi- 32. Id. at 224.
nistration. On this aspect. Marxian silences are deeply embarassing. Sec Allison 33. Id. at 224-225.
M. Jager. Feminism and Human Nature 51-83, 207-248 (1983). 34. See text accompanying note 24 supra; and Cohen at 225.
78. 1 Capital at 253. 35. G. Therborn, Science Class and Society 379-80 (1976).
79. Id. at 253. 36. L. Althusser & D. E. Balibar, Reading Capital 229 (1970). Hereafte r cited as RC.
80. Id. at 253; see also p. 267, where Marx points to the evidence of how manufac- 37. RC at 230. "It is difficult, firstly, to distinguish clearly between the relations of
turers themselves supported the Ten Hours Bill. production and their 'legal expression'; this very concept of expression is difficult,
81. Id. at 283, and see also, fo r further analysis, Chapter 4, 67-73 infra. too, once if no longer means duplication but rather articulation of two hetrogenous
82. Id. at 458. instances; finally, so is the possible dislocation between the economic relations
83. Id. at 464. and the legal forms." RC at 229.

131
84. Id. at 451 (emphasis adeed) . 38. RC at 230.
83. E.g. M. Horowitz, The Transformation of the American Law: 1780-1860 (1977); 39. Ibid.
D. Sugarman, "Theory and Practice in the Law of History: A Prologue to the 40. RC at 231.
Study of the Relationship between Law and Economy From a Socio-Historical 41. RC at 232 (emphasis added).
Perspective" in Law, State and Society 70 (1981: B. Fryer et. al. eds.). 42. RC at 232.
86. See G. Eorsi, infra note 97 at 48. 43. RC at 233.
87. Grundrise 96 (emphasis added). 44. Ibid.
88. Id. at 98 (emphasis added). 45. Ibid.
89. See, e.g., E. P. Thompson Whigs and Hunters: (1976); M. Tunshet, "The American 46. RC at 228.
Law of Slavery 1810-1860: A Study in the Persistence of Legal Autonomy Law 47. B. Oilman, Alienation: Marx's Conception of Man in Capitalist Society 7 (1971);
& Society Rev. 119-84, 177-180 (1975). see also R. Williams, Marxism and Literature 83-90 (1977).
90. RC at 306. 48. RC at 229.
91. RC at 306-308. 49. See Oilman, supra note 48 at 259 n. 253.
92. See e.g., E. Whitcombe, Agrarian Conditions in Northern India in the Late 50. See 1. Balbus, Marxism and Domination 21-36 (1982); M. Rader, Marx's Con-
Nineteenth Century (1972); and the literature analyzed in U. Baxi, Towards A ception of History (1979).
Sociology of Law in India (1986). 51. Il l Capital at 793 (emphasis added).
93. See e.g. H. Alavi, "India and the Colonial Mode of Production" Eco. & Pol 52. Grundrisse at 495 (emphasis added).
Weekly 1235 (Special Number, August, 1975).
94. I Capital at 225. 53. Id. at 110.
95. See articles referred to supra note 4-5 and 43. 54. Ibid.
96. The contemporary Indian Constitution and the law also manifest dislocations and 55. Ibid.
non-correspondence between the economic structure. The normative law, as seen 56. Grundrisse at 111.
in Chapter I, combines the elements of the consolidation of the bourgeois legal 57. Ibid.
and social order with powerful elements for restructuration of society into a 58. Grundrisse at 109.
socialist society. This is by no means a case, familiar to Marx and Engels, of a 59. K. Marx and F. Engels III Collected Works at 177 (1975: Progress Publishers).
transitional mode of production where the superstructure may be said to lag 60. Letter from Engels to Kautsky (26 June 1884) cited in RC at 229.
behind transformations in the economic structure. The avowedly socialistic elements 61. 1 Capital 550 (emphasis added).
M-4
 50 MARX , LA W AN D J U S T I C E
62. Karl Rentier, The Institutions of Private Law and their Social Functions 112 in th e text an d context of th e India n law in books and India n law in action
(1949). suggest tha t in th e peculiar Indian configuratio n or totality (combinin g elements
63. 1 Capital 531. of precapitalis t an d capitalist modes ) th e superstructur e of th e law does not
64. Ibid. merel y correspon d with the mixe d mode s of productio n but continue s to provid e
65. Ibid.
66. 1 Capital 542. operativ e basis fo r transcendenc e toward s a n altogethe r new mode . Co-existence
67. RC at 269. of differen t mode s of productio n doe s lead to the proces s of domination. Indeed,
68. Grundrisse at 495. it ha s been recentl y persuasively suggested tha t contemporar y Indi a ha s a "dua l
69. 1 Capital at 548. mod e o f production" : tha t is :
70. Id. at 551. the tw o primar y mode s (pre-capitalis t an d capitalist ) interpenetrat e and inte-
71. Id. at 547. grat e their relations, generating no t tw o independen t modes, bu t effectively a
72. Ibid. single mod e with dual character , having, at once, bot h accommodatin g and
73. Ibid. conflicting interna l dynamics.
74. Ibid. S. G. Lin, "Theor y of a Dua l Mod e of Productio n in Post Colonia l India "Eco.
75. 1 Capital at 542. & Pol. Weekly 516-28; 565-73 (1980) .
76. RC at 258.
77. RC 269-272. One form of state and law intervention is the maintenance of patri- Thi s i s no t a n occasion whe n th e "interna l dynamic s o f th e dua l mod e can b e
archy - subordination and oppression of women—through the law and legal admi- pursued . I hav e argue d elsewhere tha t this dua l mod e generates a distinct
nistration. On this aspect. Marxian silences are deeply embarassing. See AlIison patter n of collective political violence as well as distinct mode s of legal and
M. Jager, Feminism and Human Nature 51-83, 207-248 (1983). extra-legal repression. [See U. Baxi, "Violence , Dissent, Development " in Law
78. 1 Capital at 253. and Social Change: Indo-American Reflections 72 (1988) ; R. Meaghe r ed.)]. Th e
79. Id. at 253. point remain s tha t if th e mod e of productio n is itself to be characterize d as a dua l
80. Id. at 253; see also p. 267, where Marx points to the evidence of how manufac - mode , bot h th e notio n of "correspondence " an d "dislocation " as well as th e
turers themselves supported the Ten Hours Bill. entir e problematiqu e of "reproduction " of class relation s need a fres h analysis.
81. Id. at 283, and sec also, fo r further analysis, Chapter 4, 67-73 infra. Fo r ou r purposes , i t i s sufficient t o not e tha t th e law as a superstructur e contain s
82. Id. at 458. fa r mor e possibilities i n a dua l mod e o f productio n t o influence economi c structure s

132
83. Id. at 464. tha n a strict understandin g of th e bas e an d superstructur e metapho r will allow.
84. Id. at 451 (emphasis adeed) . 97 . G. E6rsi , Comparative Civil (Private) Law. Law Types, Law Groups, The Roads
83. E.g. M. Horowitz, The Transformation of the American Law: 1780-1860 (1977);
D. Sugarman, "Theory and Practice in the Law of History: A Prologue to the to Legal Development 399-409 (1979) .
Study of the Relationship between Law and Economy From a Socio-Historical 98 . Id. 399.
Perspective" in Law, State and Society 70 (1981: B. Fryer et. al. eds.). 99 . See Id. 398.
86. See G. Eorsi, infra note 97 at 48. 100. Ibid.
87. Grundrise 96 (emphasis added) . 101. Eorsi, supra not e 97 at 402.
88. Id. at 98 (emphasis added) . 102. Id. at 400-402.
89. See, e.g., E. P. Thompson Whigs and Hunters: (1976); M. Tunshet, "The American 103. Id. at 401.
Law of Slavery 1810-1860: A Study in the Persistence of Legal Autonomy Law 104. Id. at 401-402.
& Society Rev. 119-84. 177-180 (1975). 105. Id. at 402.
90. RC at 306. 106. Ibid.
91. RC at 306-308. 107. Ibid.
92. See e.g., E. Whitcombe, Agrarian Conditions in Northern India in the Late
Nineteenth Century (1972); and the literature analyzed in U. Baxi, Towards A 108. Ibid.
Sociology of Law in India (1986). 109. Eorsi, supra not e 97, at 408.
93. See e.g. H. Alavi, "India and the Colonial Mode of Production" Eco. Pol. 110. Ibid, (emphasi s added) .
Weekly 1235 (Special Number, August, 1975). 111. R. Bahro, The Alternative in Eastern Europe 241 (1978).
94. I Capital at 225. 112. Id. a t 96.
95. See articles referred to supra note 4-5 and 43. 113. Id. a t 241.
96. The contemporary Indian Constitution and the law also manifest dislocations and 114. Ibid.
non-correspondence between the economic structure. Th e normative law, as seen 115. Bahro , supra not e 111, at 97.
in Chapter I, combines the elements of the consolidation of the bourgeois |egal 116. G. Eorsi, supra not e 97, at 409.
and social order with powerful elements fo r restructuration of society into a 117. N. Poulantzas, Classes in Contemporary Capitalism, 17 (1978); and Chapters
socialist society. This is by no means a case, familiar to Marx and Engels, of a 6 and 7 infra.
transitional mode of production where the superstructure may be said to lag
behind transformations in the economic structure. Th e avowedly socialistic elements
\
M-4
WEEK - 6

133
134
135
136
137
138
139
140
141
142
143
WEEK - 7 & 8

144
SPECIAL ARTICLE
Ostensible Poverty, Beggary and the Law
Usha Ramanathan
Beggary laws persist in Indian jurisprudence despite
evidence of abuse and presumption of criminality
among the “ostensibly poor”. A quartet of encounters
with the law, in Mumbai and in Delhi, provides a context
to exploring the relationship between poverty and
criminality, and the extensive loss of rights that emerge
as a consequence.
Beggary laws have begun to demonstrate how the law
may be made, continued, expanded and practised when
the constituency affected by the laws are powerless – so
rendered by the illegality that the law visits on them, the
prejudice that poverty provokes, the distance between
privilege and poverty, and the vanishing obligations of
the state.
The Bombay (Prevention of Begging) Act 1959, in
particular, has led to the callous treatment of those who
are “ostensibly poor” and in the denial of rights to them,
thereby rendering itself unconstitutional. It is therefore
necessary to repeal the law.
Usha Ramanathan (uramanathan@ielrc.org) is with the International
Environmental Law Research Centre, New Delhi.
Economic & Political Weekly EPW november 1, 2008
145
T
he crackdown on the urban poor in Delhi has been on for
some time. Aspirations to create a global city, the Common-
wealth Games 2010, the desire of the city’s more prosper-
ous denizens to banish the poor and their poverty to locations in
which they have no interest has each acted as provocation. In this
midst is the complicity of the law and judicial dicta which foists
illegality on the poor, and allows an easy presumption of potential
criminality. A stunning instance of an area of law that has accumu-
lated a baggage of crime and wrongdoing by the law enforcers is
found in the law relating to ostensible poverty. In the law’s render-
ing, though, it is ostensible poverty, in and of itself, that could be the
crime. Ostensible poverty may require no specific, or even general,
act or conduct to acquire the attributes of criminality; dire poverty
that is visible, and witnessed in public spaces, could attract the
exercise of the authority of law. The class of persons who may be
the intended subjects of a law that deals with this phenomenon of
ostensible poverty have been identified as “status offenders”;1 that is,
they offend by being who they are, and not by doing what they do.
Laws dealing with the context of beggary are vivid, and obvi-
ous, illustrations of this phenomenon. The Bombay (Prevention
of Begging) Act 1959 (BPBA), which was extended to Delhi in
1960, has acquired a wealth of experience over the years, provi-
ding stark proof of the inherent injustice of this law and laws of
similar ilk. A quartet of encounters with the law, in Mumbai and
in Delhi, provides a context to exploring the relationship between
poverty and criminality, and the extensive loss of rights that
emerge as a consequence. It reflects on the depleting obligation
of the state where poverty persists, and the onus cast on the per-
son in poverty to procure gainful employment or, at the least, to
make poverty invisible. Interestingly, this is a law without a
“good faith” clause2 – the element that is routinely introduced
into legislations to protect persons acting under the law from be-
ing prosecuted by a presumption of “good faith”. Yet, documented
excesses in the guise of enforcing the BPBA 1959 have not led to
the prosecution and punishment of those abusing their power;
nor has it resulted in changes in the law to prevent, or at least
discourage, the exploiting of the already vulnerable. This mar-
ginalisation, and exiling from constitutional treatment, of the
ostensibly poor stands demonstrated. This can reasonably lead to
only one conclusion: that the law relating to begging and ostensi-
ble poverty is insupportable as well as unconstitutional, and must
be either repealed, or struck down by a court which possesses the
power to test a legislation for its constitutionality.
These remarks anticipate the narrative. To start at the begin-
ning, first, the law.
The Law to Prevent Beggary: There are three ways in which a
person may fall within the net of the BPBA 1959: by definition,3 by
33

being dependent on a person who is convicted of and beggary,4
by “employing or causing persons to beg or using them for
purposes of begging”.5
Ostensible Poverty: The direct, and most practised, way is by
definition. “Soliciting or receiving alms in a public place, whether
or not under any pretence of singing, dancing, fortune-telling,
performing or offering any article for sale”6 could constitute
“begging”. So too could “entering on any private premises for the
purpose of soliciting or receiving alms”,7 or exposing or exhibit-
ing wounds, injuries or deformities to “extort” alms, or allowing
oneself to be used an exhibit.8 And, in an effort to extend the
exercise of authority to all of ostensible poverty, “begging”
includes “having no visible means of subsistence and, wandering
about or remaining in a public place in such condition or manner,
as makes it likely that the person doing so exists by soliciting or
receiving alms”.9
The effect of this overbroad generalisation has been docu-
mented over the years. In a student investigation into the admini-
stration of the beggary law in Delhi conducted between 1976 and
1979, they found Chottan Choudhary, a man in frail health who
had lost his right arm below the elbow and which “natural dis-
ability exposed him to a very high degree of risk of arrest”.10
He had been arrested several times, although the students
were able to track his livelihood to a small grocery store that
he ran.11
In 1990, when Manjula Sen, a journalist, filed a public interest
litigation (PIL) in the Bombay High Court challenging the consti-
tutionality of the BPBA 1959 and the tyranny under the law that
had become standard practice, she cited the case of Rajguru, 16
years of age, a bootblack who was “caught outside Churchgate
station while he was sleeping during the day on November 15,
1989. He protested…“(that) he was not a beggar but a shoe-pol-
isher but to no effect. Although he was a child [under the Juvenile
Justice Act 1986], his age was deliberately entered as 19…
The interesting thing is that Rajguru is handicapped. He has
only one hand. Because of this, he was presumed to be a beggar
and arrested”.12
In an assessment of two beggars’ homes in Delhi done by a
senior civil servant of the Delhi government following reports of
inhuman conditions in the institutions, Gyanendra Dhar Badgai-
yan wrote, in March 2001:
Wrong people are being arrested by the anti-beggary squad. One
reason for this possibly is that the squads are venal. This was estab-
lished beyond doubt by an internal inquiry [conducted by Mr A K
Sinha, District Officer, Social Welfare Department]. It confirmed that
in the case of one Mr Gyan Chand Gupta, a retired clerk, the squad
released him after snatching Rs 9,000 of the pension money that he
was carrying. His only crime was that he was dressed shabbily. That
this may not have been an isolated case was pointed out by the inquiry
itself, which suggested that the squad regularly indulged in such
malpractices. During interviews…, inmate after inmate complained
that they were hauled up only because they could not pay the hundred
rupees bribe demanded of them. Some of them at least, like the retired
clerk referred to above, may not be beggars but may have just looked
like one at the time of their arrest”.13
Significantly, a committee appointed by the Bombay High
Court on the basis of Manjula Sen’s petition, having accompanied
Economic & Political Weekly EPW november 1, 2008
146
SPECIAL ARTICLE
the “police squad” and followed through on the working of the
BPBA 1959 on the street and in the court, concluded:14
(1) The arrest is made of the people who are found on the street in
dirty clothes and wandering. They are not actually found begging
....
(4) Large number of wrong arrests are made which is inhumane and
unjust.
...
(7) There is no criteria to decide as to who is a beggar, who is sick,
physically handicapped or in need of economic help.
`Raids’ and `Rounding Up’
Relying on perceptions of the feckless poor has allowed for
conducting raids, and rounding up “beggars”. The students of
Delhi University reported meeting “beggars” “who had been
picked up from all over town in the recent raid”.15 The high court
appointed committee in Bombay observed in court that “when
the members (of the committee) left the police vehicle there were
only six beggars and when they were produced in the court, there
were 21 which is a large number. The feeling that one gathers is
that the procedure they adopted to arrest the beggars was differ-
ent when the committee members were present, whereas the
arrest later on perhaps was different”.16
The breadth of identity by definition, and the idea of presumed
criminality of the ostensibly poor, has clearly settled comfortably
into the reading and rendition of the law. The perception of the
proximate poor as fearful and threatening has proved to be easy
to accommodate within this expanded relationship between
poverty and crime. The invocation of the BPBA 1959 to put away a
community of persons who the law projects as offenders and,
therefore, as persons whose criminal propensity need not be
doubted, is a striking statement about the remarkable power of
the definition.
Fear, Poverty and Presumed Criminality
In July 2006, a criminal complaint was lodged in the court of the
additional metropolitan magistrate in New Delhi. This was sent
on to the high court, where it is presently pending. The immedi-
ate provocation was the “harassment by the lepers at Ashram
Crossing near Maharani Bagh, New Delhi”.17
It was
submitted that on February 13, 2006, the leper in a blue lungi who
used to harass and threaten our member at the Ashram Crossing again
threatened (her) with dire consequences in case (she) reported the
matter to the police in order to stop him from begging at the Ashram
Crossing. The leper in blue lungi told our member to give him money,
otherwise (she) would be kidnapped and taken to the basti of lepers
where (she) would be touched by the lepers so that (she) would get
affected by the disease of leprosy.18
Complaints to the police resulting in a mere suspension, and
return, of the beggars at Ashram Crossing, “our member again
saw the same leper who had threatened (her)...Our member was
scared and mentally disturbed that the leper might try to take
revenge and may harm as he had earlier threatened our member”
(emphasis added). A further reappearance of the beggars, after a
temporary cessation of their activities following sustained
pressure on the police to act, had “our member…again threatened
35
SPECIAL ARTICLE
and (she) apprehends danger to life as (she) has been threatened
that (she) can even be murdered in case (she) reports the matter
to the police”.19
There were references in the letter of referral to the high court
by the ACMM20
– to some, unspecified, members of the New Delhi Bar Associa-
tion being accosted and threatened by beggars;
– to reports in “some news channels including Channel 7 and
CNN-IBN” on July 29, 2006 and July 30, 2006 “regarding the
involvement of some doctors in a racket of cutting healthy limbs
of human beings for the purposes of begging”;21
– the “illegal activities” of “anti-social elements and goondas”
increasing “at the Ashram Crossing and in the nearby localities as
is evident from the murder of two lady advocates” of the Delhi
High Court.22
What followed, however, has little, if any, relevance to these
last two incidents, although, surely, they must have been
perceived to be somehow related. In the event, the department of
social welfare, National Capital Territory of Delhi “recently
conducted a special drive to apprehend beggars from Septem-
ber 2, 2006 to September 8, 2006 and apprehended 53 beggars.
Besides this, the department conducted 31 raids during the
period from May 3, 2006 to October 5, 2006 in various locali-
ties in south Delhi, namely, Maharani Bagh, Ashram, Moolchand
crossing, South Extension and Lodhi Road and apprehended
133 beggars”.23
Between April and October 9, 2006, 619 persons had been
apprehended as beggars by the department of social welfare, and
40 persons had been pulled in by the police.24 In a display of insti-
tutional competitiveness while reporting to the high court, the
“status report” of the department of social welfare “submitted
that the respondent-department has already apprehended more
number of beggars than the police authorities within the limited
resources and personnel available”25 despite “apprehending
beggars” being a responsibility “primarily cast on the police”.26
In a status report February 2, 2007, the DCP (south) claimed to
have detained 63 beggars between August 1, 2006 and Novem-
ber 25, 2006, even as the department of social welfare had
“intensified their drive of detaining the beggars from public
places”.27 In the status report of the department of social welfare
filed pursuant to directions of the high court dated January 9,
2007, it was
further submitted that the respondent-department has started
conducting regular raids with the assistance of police, districtwise.
During the month of January 2007, 294 beggars were apprehended,
which includes 263 male, 25 female and six children.
In view of the aforesaid averments and reports annexed [of the number
of persons apprehended as beggars, released, acquitted and commit-
ted in 2005 and 2006] it is submitted that the respondent-department
is taking steps to apprehend more number of beggars within the
resources and personnel available.28
This exercise in clearing the streets had begun as “a criminal
complaint…regarding harassment and threat extended by beg-
gars/lepers to one of the lady members of the complainant asso-
ciation [the New Delhi Bar Association] at Ashram Chowk”.29 More
specifically, it was an exchange that the lawyer had with a “leper in a
blue lungi” that constituted the provocation. While hundreds of
36
147
persons were being apprehended and detained as beggars, the
department of social welfare reports having requested the lawyer
to identify the offender and to provide all other evidences/witnesses
in this regard so that the investigation in this case may be completed
expeditiously. In view of detention of large number of beggars by
police and social welfare department, Ms S was requested to try to
identify the offenders from the detainees but she has declined the
request saying that the accused leper is not there at Ashram Chowk
now and that if she is shown the photographs of all the detainees, she
can identify the offender’s photograph. Accordingly, Ms S has been
provided with the photographs of all the beggars detained in beggar’s
house during last one and a half year (approximately 1,100). She could
not identify any person from the photographs.30
In the meantime, so as “to keep the identity of some of its
members secret…since (they) were apprehending danger and
threat to their lives”,31 the president of the New Delhi Bar Associ-
ation (NDBA), and not the lawyer, was directed to be registered as
the complainant. Significantly, in the case, the case was variously
listed in the name of New Delhi Bar Association vs Commissioner
of Police or Court on Its Own Motion vs In Re Begging in Public, or
Court on Its Own Motion vs Commissioner of Police, both advert-
ing to the same case indicating the consanguinity of interest of
the court and the complainant. The “vs In re Begging in Public” is
a statement on the intolerance of ostensible poverty. By February
2, 2007, the “informant, Ms S, advocate was contacted but she
refused to divulge any information saying that she is not a
complainant in this matter and showed her helplessness in
providing any further assistance”.32
The non-cooperation of the complainant on whose fears and
apprehensions hundreds of persons were rounded up as beggars,
and her “refus(al) to divulge any information” because she was
no longer, formally, the complainant is tolerated by the law. It, in
fact, reaches beyond tolerance. For, on July 30, 2007, the court
records the lawyer-complainant’s protest when the amicus
curiae33 suggested that, since 95 per cent of the inmates that he
had met were from states outside Delhi and were willing to be
sent back to their states of origin, they may be released under the
law.34 The court records that the lawyer “apprehends mayhem on
the streets of Delhi like rape, murder and loot, making the life of
citizens totally unsafe if the beggars who, according to her, are in
fact criminals are allowed to be set free.”35
Paucity of Debate
The equation of a state of poverty with criminality, and the
extreme inequality of power in activating the law, and in being
heard, is self-evident. What is striking is the paucity of debate on
how such prejudice, and such imbalances in power, continue to
be entrenched in law. How is it that a law can lay claim to consti-
tutionality even when its very existence can be the basis for mass
action against the ostensibly poor, set off by fears and percep-
tions of threat, while the persons under attack get objectified and
become completely “right-less?”
There is no evidence that these preventive arrests have
captured any space in the public arena of dispute, contention and
challenge beyond the case initiated in the court. The connection
between the crackdown on ostensible poverty and the invisibilis-
ing of the violations practised on those who are publicly poor
november 1, 2008 EPW Economic & Political Weekly

could explain this in part. That invisibilising the role of law and
authority in the lives of those in ostensible poverty has persisted,
despite the abuse of power and the extremes of right-less-ness
exploding anecdotally on the scene, points to a complicity
among those with the capacity to make, or influence, law, policy
and practice. Implicit in this invisibilising, and complicity, is a
hierarchy of constitutional citizenship, where the “right to life”
of a class of persons includes a range of rights and freedoms
including freedom from insecurity and fear, and the right not to
be accosted by that which is a nuisance or which is aesthetically
disturbing. What may be displaced in the process may well be
life, liberty, freedom of expression, the right against torture,
the right to live with one’s family, freedom from fear and every-
day threat and the disappearance of state obligation in relation
to another class of persons. It is difficult to conceive of such a
legal order as being constitutional or just.
In the court, the case is currently being processed, and some
responses will eventually emerge. Reflecting on the law need
not, however, bide the verdict. In part, there is the assistance that
another recent pronouncement of the Delhi High Court provides
in unravelling the import of the definition and, more generally,
of the law.
Ram Lakhan vs State36 was a challenge to a conviction under
the BPBA 1959 based on a finding that the person before the court
was a “beggar”. The metropolitan magistrate had imposed a
sentence of one year, which had been reduced to six months by
the additional sessions judge while setting aside the conviction
since the only witnesses were the two police officers who had
picked him up when they were on an “anti-begging raid”, and
even they had not testified to being witness to anyone giving
money to the petitioner. While deciding the case, and acquitting
the person charged of beggary, the judge considered the act of
begging, and its promptings, to understand what the law could
possibly mean. Imbedded in this analysis was an exploration of
what could constitute motive and intention that could constitute
offending conduct. After all, as the judge explained, it is not all
solicitation of alms that is illegal; a person may be given a
“permit” to solicit alms and that would make the otherwise
illegal act legal.37 As a court in New York had remarked in The
People of the State of New York vs Eric Shrader,38 surely “no
rational distinction can be made”, when considering the
freedom of expression aspect of begging, “between the message
involved, whether the person standing in the corner says ‘help
me, I’m homeless’, or ‘help the homeless’”39 – and it is the latter
that the law may support while the definition that makes a
crime of begging “is essentially targeted at solicitation of alms
by individuals”. 40
Reasons behind Begging
“Why does a person beg?”,41 the judge asked, as a prelude to
applying his judgment to who may have the heavy hand of the
law laid on them. The act of solicitation may be similar, but the
impulse may vary; and the law’s logic ought to be able to sustain
the treatment meted out under its aegis. Or such is the reasoning
which underlies this decision. So, a person may beg because
“he is downright lazy and doesn’t want to work”. 42 Or, “he may
Economic & Political Weekly EPW november 1, 2008
148
SPECIAL ARTICLE
be an alcoholic or a drug addict in the hunt for financing his
next drink or dose”. 43 Or, “he may be at the exploitative mercy
of a ring leader of a beggary ‘gang’”. 44 Or, “there is also the
probability that he may be starving, homeless and helpless”. 45
Even as the BPBA 1959 does not, apparently, draw distinctions
among these “four different kinds of ‘beggars’”, 46 there is scope
enough in the law “to treat them differently as, indeed, they
should be”. 47 Maybe professional beggars “who find it easier to
beg than to work”48 could appropriately be dealt with by deten-
tion in a certified institution. But, “begging” is not the problem
when it is addiction, or exploitation, that drives the person to
the act of begging; de-addiction, or release from the exploita-
tive clutches may hold the solution. 49 As for those “driven to beg
for alms and food as they are starving or their families are in
hunger...[t]hey beg to survive; to remain alive”.50 “For any
civilised society”, the judge observed, “to have persons belong-
ing to this category is a disgrace and a failure of the state. To
subject them to further ignominy and deprivation by ordering
their detention in a certified institution is nothing short of
dehumanising them. ...Prevention of begging is the object of
the said Act. But, one must realise that embedded in this object
are the twin goals – Nobody should beg and nobody should
need to beg”.51
In 1959, Gore and his colleagues at the Delhi School of Social
Work had said of the law:
[I]t may be noted that in the face of a general economic maladjust-
ment, little good can be done to beggars by merely passing deterrent
and punitive legislation. …Thus …All the legislative and other
attempts have been directed to solving the problem at a stage when a
person has actually taken to begging, but little has been done to meet
the economic and other needs on their first appearance.52
Since 1950, the Directive Principles of State Policy in the
Constitution had adverted specifically to providing social security
to meet all cases of “undeserved want” – an aspect which, unfor-
tunately, has had hardly any jurisprudence developing around it.
Given the context, the judge adopted the “doctrine of
necessity”.53 The factors that the BPBA 1959 required the court to
consider included “helplessness, poverty and duress”.54 There is,
too, the aspect of soliciting alms being, in effect and in its
practice, an exercise of “freedom of speech and expression”.
What, as the judge asked, does the beggar do? “After all, begging
involves the beggar displaying his miserable plight by words or
actions and requesting for alms by words (spoken or written) or
actions. Does the starving man not have a fundamental right to
inform a more fortunate soul that he is starving and request for
food?”55 And would the consequence of being detained and
denied his liberty not run “counter to the fundamental right to
speech and expression?”56
The judge specifically clarified that this delineation of the
contours of the law was not meant to conclude that begging
cannot be prohibited.57 What it meant was that the prohibition,
and its penal consequences, would have to be within the “reason-
able restrictions” enunciated in the Constitution.58 And, where
“no legitimate alternative to begging” was evident, pre-fixing a
“condition that he is not likely to beg again and suffix(ing)…the
requirement of furnishing a bond for abstaining from begging”
37
SPECIAL ARTICLE
and for “good behaviour” “would be wholly inappropriate where
a person begs out of sheer necessity or compulsion”.59
The prejudices within the judicial process which the judge
notices are telling:
– The metropolitan magistrate had recorded that “the accused was
found begging by raising his front paws from the passers by”.60 It
moved the irate judge to exclaim: “Beggars are not beasts with claws!
They are human beings and they should be treated as such.61
– The Social Investigation Report had found him to be a ‘habitual
beggar’. The court has acted on this finding. At no point had the person
to be detained on the count of being a habitual beggar been allowed to
explain, controvert or contest the report. There was no legal obliga-
tion recognised to hear what he had to say.
– There was a further “ugly twist”.62 He had been detained in a certi-
fied institution set up under the BPBA 1959. Yet, he was sent to Tihar
jail, contrary to the law, and there he remained for close to a month,
till the court summoned him to its presence.63
On one side, then, is choicelessness, necessity and, often,
undeserved want. On another, the Constitution, the law and
institutions that could be legitimately expected to protect the
rights and interests of those less equal than others. On still
another, are prejudice, presumption, practice and a priority of
interests that determines the constituency of the law.
The BPBA 1959 had not been challenged in the case before the
high court in Ram Lakhan; it was action taken under the law that
had been brought into question. The judge was inhibited by the
way the case was posed to limit himself to “an examination of
(the) aspects touching upon the constitutional validity”64 of the
BPBA 1959 as applied to Delhi. The Bombay High Court was not so
constrained when dealing with Manjula Sen vs Superintendent,
Beggars’ Home.65 In an “oral judgment” delivered in court on
July 16, 1990, a single judge set up a committee of five persons to
investigate a range of issues emerging from the law and practice
of the BPBA 1959, charging them, specifically, with suggesting a
“method of implementation” of the BPBA 1959 or “amendments to
the Act and Rules for achieving the objective of the Act”.66 There
was especial emphasis on the circumstances in which “rounding
up” of beggars may be done; and an invitation to make recom-
mendations on “whether any legal aid is to be given to those who
are rounded up under the provisions of the Beggars Act”.67
The committee adopted a method of inquiry that included
visiting the homes housing those picked up under the BPBA 1959,
collecting data on the capacity of homes and the occupancy, diet
and medical facilities, and the meaning given to “rehabilitation”
within the institutions. It sought, and obtained, the opinion of
experts on the law. Legislation in other countries including Hong
Kong and Singapore were consulted. The members of the commit-
tee witnessed raids, and the process in the court. They explored
the significance of various agencies of state in relation to the BPBA
1959, including the police, the probation officers, the lawyers, the
staff of custodial institutions and the social welfare department.
When the exercise was completed, the unanimous and unhesitat-
ing recommendation was that the BPBA 1959 is “totally outdated
and cannot achieve the stated objectives …. and therefore needs
to be abolished without any delay”.68 In setting out this conclu-
sion, the committee found support in the opinion of Satyaranjan
Sathe, a highly regarded teacher and expert in constitutional,
38
149
administrative and public interest law. In his note to the commit-
tee, his scathing remarks on the law included these: “This whole
law is an attempt to treat street poverty as a law and order
problem”.69 “This is actually a preventive detention under the
garb of punitive detention”.70 “Those who are forced to beg by
circumstances ought not to be treated as offenders of the law.
They need a healing touch of the protective law, not the deter-
rence of a criminal sanction”.71
Heeding this advice which was bolstered by what they had
witnessed, the committee recommended the introduction of “a
new law which will be in tune with modern thought”.72
Such a law, it said, must –
– Redefine begging, narrowing it down, and drawing a distinc-
tion between destitution and beggary,73 and placing only profes-
sional beggars within a regime of restraint and punishment.
– Decriminalise begging, and establish welfare homes which
persons in situations of helplessness may access, voluntarily, and
where they may “seek shelter, training and rehabilitation”.74
– Discontinue the institution of beggars’ courts. “It is reported”,
the committee said, “that about 100 cases are disposed in less
than 15 minutes”.75 On the day that the committee had witnessed
proceedings in the court, there had been 33 cases on remand and
21 new cases. “When the names of the new cases beggars were
called”, the committee recorded in its report to the high court, “the
judge had just glanced at them and remanded them to custody in
the beggars home. Out of the 33 remand cases, most of them (31)
were released and only two were detained. The whole proceeding
was over in 8 minutes”.76 “Looking at a face and deciding the fate
of a person”, the committee had said, “was shocking to the members
witnessing the proceedings”.77 “Therefore”, the committee found
it impelled to recommend, “these so-called beggars’ courts be
discontinued as they will not be needed under the new Act”.78
– Strengthen supervision of the workings of the BPBA 1959, for
“regular inspection, field counselling and management control
seems to be tragically absent”.79
– Establish cost effectiveness. The institutionalising of control
over the poor, rather than concern with the needs of those in
poverty is evidenced in the committee’s statement that: “It should
be considered whether it is worthwhile to maintain a beggar’s
home for 400 beggars spending Rs 30 lakh per year. It would be
far better to introduce some social security system (public assist-
ance with supervision). This would enable to cover (sic) far more
people and with better facilities and programmes.”80
– Re-establish committees, enhance people’s participation. In the
Male Beggars’ Home, it seemed that there had been no visiting
committee in over 15 years.81 In the Female Beggars’ Home, no
visiting committee had held any meeting since 1969.82 This
neglect, it was suggested, had resulted in the decline in this area
of the working of the law.
– Include participation of voluntary organisations.
– Train staff.
– Remodel vocational training.
– Provide for public assistance which, in any event, is also more
“economical than institutionalisation”.
– Start sponsorship programmes.
– Promote organised charity.
november 1, 2008 EPW Economic & Political Weekly

– Reorganise medical work, for, “case workers, doctors and quasi-
medical doctors in beggars’ homes appear to suffer the blight of
ignorance, apathy and incompetence, more so in case of the
female beggars who suffer from mental disorder and male
beggars who suffer from leprosy”.83
Even as these were intended to be indicative of where the
committee believed a new act should be headed, it was “unani-
mous on this Report and feels very strongly about the need for a
new Act and establishment of welfare homes”.84
This categorical denunciation of the BPBA 1959 after an elabo-
rate exercise undertaken at the behest of a high court has, plainly,
not had any effect on the letter of the law, or in its practice.85 The
BPBA 1959 remains unchanged. Raids continue. Institutions are
horrific and have not the faintest connection with humane, or
even formal constitutionally justifiable, conditions. Destitution
and undeserved want are still crimes despite judicial engagement
that challenges the irrationality and injustice of such treatment.
And the extreme inequality of power that is aggravated by the
law persists resulting, as witnessed in 2007 in Delhi, in the osten-
sible poor, as a class, becoming vulnerable to being punished for
being publicly poor.
Excesses in the Law
Episodically, evidence has accumulated about the impunity that
has developed through apathy and the casual disregard of law in
dealing with ostensible poverty. The law, too, bears bold signa-
tures of unconstitutionality which, if it had affected classes more
proximate to power, would assuredly have faced severe tests in
courts, legislatures and on the streets of democratic protest. A
read through the law would produce, for instance –
 The power invested in a police officer or anyone else that the
government may authorise to “arrest without warrant any person
who is found begging”.86
 Once produced in court, they would be subjected to a “summary
trial” preceded by a “summary inquiry”.87
 If “the court is satisfied that such person was found begging”,88
the sentence could be an admonishing and release on a bond
“requiring the beggar to abstain from begging and to be of good
behaviour”,89 or be ordered “to be detained in a certified institu-
tion for a period of not less than one year, but not more than
three years”.90 There is a third possibility, of requiring the person
to report to the commissioner of police or district magistrate,91
but the point of this possibility is unstated and obscure.
 A person previously detained in a certified institution found
begging again shall be detained for two to three years.92 And,
when convicted for the second or subsequent time, the court
“shall order him to be detained for a period of 10 years”, and may
even convert up to two years of that detention into a “sentence of
imprisonment”,93 revealing a nexus that the law sees between
poverty and common criminality.
 When such detention occurs, and after the court has made
“such inquiry as it thinks fit”, it may “order any other person
who is wholly dependent on such person to be detained in a
certified institution for a like period”,94 with the concession to
due process that such person shall be given an opportunity to be
heard on why such an order of detention should not be made.95
Economic & Political Weekly EPW november 1, 2008
150
SPECIAL ARTICLE
This is guilt by association and, along with destitution, makes a
crime of dependency.
 Every person detained in a certified institution “shall at any
time allow his fingerprints to be taken” by the police or magis-
tracy.96 This would include all those who have been “rounded up”
and brought in “raids”. Were they to refuse to allow their finger-
prints to be taken, they shall be liable, on conviction, to have
their period of detention “not exceeding three months converted
to a term of imprisonment extending to a like period”.97 The
invasion of privacy of persons who stand accused has, in recent
times, been sought to be justified as being necessary to meet the
extraordinary situation created by terrorism. This has generated
much debate and dissent, but, even there, there is no talk (at
least, not yet) of punishment for refusing to allow the violation
of privacy.
The Delhi High Court has spoken of “its wish to give certain
directions with regard to biometric identification of beggars as
also the creation of a Personal Data Bank” which, the court
suggests, “will help the authorities to keep a tab on the beggars
who are repeat offenders as also whether rehabilitation is
working or not”.98 The “existing system at Tihar jail” which
houses undertrials and convicts provided the inspiration.99 By
early December 2007, the amicus appointed by the court reported
that the Delhi administration had taken its cue from the court to
begin to set the process in place for introducing biometric identi-
fication of those roped into the system as beggars.100 There are
questions of constitutionality of this procedure which may
never get asked or answered unless constitutional advocacy
triumphs over administrative procedure-making. There are
also questions that arise about the purpose of this exercise. In a
system where people in conditions of poverty are numerous;
the state system offers no social security or opportunity for
overcoming economic redundancy, nor does it desist from
implementing policies that render many unemployable; where
rehabilitation and training have never been pursued; where the
state’s willingness and capacity to aid the ostensibly poor stands
seriously depleted – what would a roster of the ostensibly poor
do? There are no consequences to the state or any of its officers
or agencies if they do not improve the possibilities of those
dragged into the net of this law. What, then, is the point of the
introduction of this invasive technique of surveillance surely
deserves some explanation?
The Fig Leaf
The law, as it stands, places the onus on those in destitution not
to continue to be ostensibly poor when it equates “good
behaviour” with taking themselves off the streets. It lets the
notion of state obligation vanish almost without a trace, but for
references to rehabilitation and training. The failure to deliver
on rehabilitation, it would appear, has done nothing to deflect
the control and authority of the state; it has consequences only
for those in destitution.
In 1959, Gore had noticed that the laws governing beggary
were not meticulous in their treatment of rehabilitation. Yet, their
study had found there has been attempts by those running certi-
fied institutions to send the inmates to factories where they could
39