Saturday, September 5, 2009

Splitting open the Goose that lays the Golden Eggs: Responding to the Thomas-Faleiro Arguments - I

Some weeks ago, Eduardo Faleiro roped in the former Justice K. T. Thomas to create the context for a demand for State law to supervise management of Church properties. This two part response to what I call the Thomas-Faleiro argument seeks to complicate the uni-dimensional vision of Justice Thomas, suggest the real reasons for their arguments and argue, invoking the idea of legal pluralism, that what we need is not more institutions and law, but an effective spread of grass-roots constitutionalism.

As with any mechanism, there are at least two ways to engage with the law. One is the method of the mechanic. She will be able to repair a machine, but may possibly be hard-pressed to introduce innovations, or contribute to a further evolution of the mechanism. The engineer on the other hand, is able to resolve this latter lack, intervening in the operation of the mechanism to introduce innovations and also predict the kind of impacts that such innovations would possibly have. In the case of the law, this distinction between the mechanic and the engineer is represented through the distinction between the lawyer and the sociologically-sensitive jurist. The argument of the former Justice K. T. Thomas on the need for a law regulating the assets of Christian Churches in India, represents that of the mechanic. It is the view of a mechanic of the law because it looks merely at the dry letter of the law, ill-illumined by an understanding of juristic notions of ‘Law’ as well as socio-legal realities. It is with this recognition that I would like to delve into a response to the Honourable Justice’s thoughts as well as those of the leader of the enterprise, Eduardo Faleiro. (And let us dispense with the fiction that this initiative was led by the AICU)

The thoughts of Justice K. T. Thomas as expressed in the text of his lecture represent both an opening and a closure. The opening that he presents is that for the Indian State. What Thomas and Faleiro seek to do is to extend the power, and the control of the Indian state over properties of the Church. This opening, I will argue, is potentially tyrannical, since it would lead to a closing of democratic spaces of dissent and control, as well as lead to an impoverishment of our notion of what Law, legality and legal spaces mean. In this sense, the closing that the Faleiro-Thomas maneuver represents is the closing of the multiple legal spaces that exist outside of the legal structures of the State, a closing of the democratic option.

Thanks to being educated largely by Statist theories, most of us are under the firm impression that law can be the product only of the State, and that the spaces of law are only those of the judiciary and the legislature. The fact is however, that our social condition is marked not by a legal monism, but by a legal pluralism. Law and legality abound in various social locations, and State law is just one among these legalities. The modern State has however, since its very inception, attempted to snuff out the life of these legal spaces and the legalities that they produce. Justice Thomas is not unaware of this when in discussing the case of the Church, he cites the Canon law that regulates the operation of the Church. There may be problems with this law, in that it tends to be hierarchical and outside of the realm of the common person, but this is not Justice Thomas’ main concern. This is not his concern since State law shares both these features. His intentions as already expressed above, are to get the operation of this law, and the Church, firmly placed under the law and sovereignty of the State.

To justify this extension of the powers of the State, Thomas suggests that no person or institution can be, or should be outside of the jurisdiction of the Constitution of the State. This is a valid point; constitutional values are the values that provide the bed-rock for governing public morality. Social values may choose to conflict with these constitutional values, but in the course of contestation, they must bow to constitutional values. And yet, Thomas, typically for a lawyer, fails to grasp a crucial distinction; that it is Constitutional values that must proliferate through the Republic of India, not necessarily the legal structures of the State. Such a (State) institution heavy approach, in fact subverts the Constitutional project, rather than enhances it.

Entrenched in his belief in State law Thomas suggests that judicial review is the best and only appropriate form of regulation of the use of Church property. This is, to be sure, a rather na├»ve suggestion, since it is common knowledge, both to social scientists who study the operation of the Indian judicial system, and the lay person, that the Indian judicial system is the in fact the forum of last resort for any party seeking to genuinely resolve a dispute. The Indian judicial system is in fact a forum utilized primarily by the ‘men with long pockets’; to maintain the status quo, to harass one’s opponent, and delay the eventual resolution of the dispute. In addition, we should recognize that disputes within the Church’s bodies, can already be taken up in a Court of law.

In support of his argument, Thomas refers to the Waqf Act where Muslim charitable properties are monitored by a Government appointed committee. A comparative anecdote in this regards would help us understand the situation a little more clearly. Some time last year, the Goan Muslim community was approached with the suggestion that they too adopt the Waqf (Islamic trust) model for properties held by their religious institutions. The suggestion was stiffly contested, and not only because the managers of these properties wanted to appropriate funds for themselves. On the contrary, there was once more the similar fear expressed of what would giving control to the Government mean for both the community and the institutions? This fear was, in my opinion, well placed. If the Government appoints persons to monitor the operation of Church or Waqf properties, what sort of people would it appoint? Experience suggests that they would appoint those members of the community who are willing to play ball with the political elites that control the Government. What these institutions do therefore, is to extend the power of political elites (like Faleiro and Thomas) over a ‘community’ and their properties. In the case of Goa, the implications of such a capture of power are more than obvious. Real-estate development has already become the primary economic resource for political elites in Goa. Where Church properties are being misappropriated today, the misappropriation in most cases is more diffused. Centralising control, as suggested by Thomas-Faleiro would allow for larger players to benefit, and cut out the small players who currently benefit, if at all. Are Thomas-Faleiro proposing a case of jumping ‘from the frying pan into the fire’?

More crucially though, to return to the idea with which I began this response, and to conclude this portion of the response, the suggestion to place Church properties under Governmental control represents not merely an opening up, but a prising open.. The Thomas-Faleiro argument is no well-intentioned selfless argument for the good of all concerned. It is the attempt of ‘secular’ elites firmly entwined with the State, attempting to break the control and power of the traditional elite within the Catholic Church and bring the Catholic community firmly under the imperial umbrella of the Indian State. Internal sovereignty has no other meaning other than this, the destruction of pluralism, in favour of the total control by the State. Further, it is not insignificant fact that both Faleiro and Thomas belong to this imperial national elite. In the following portion of this response, I will argue in what manner this prising-open for the State in fact represents an anti-democratic, totalitarian tendency, leading to the closure of pluralism in State and society.

(Published in the Herald, Opinionated, 3 Sep 2009)

Follow Part II of the essay on http://dervishnotes.blogspot.com/2009/09/closing-doors-to-democracy-opening-them.html

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