A 15-year-old saga of contempt in the Calcutta High Court: Interviewing Hans Dembowski

For German scholar and journalist Hans Dembowski, this February was an anniversary of sorts. It marked 15 years since a contempt case was filed against him in the Calcutta High Court, a case that has never come up for hearing..After his book titled Taking the State to Court – Public Interest Litigation in Metropolitan India was published in India in 2001, it was forced to be taken off the shelves after a group of lawyers filed a contempt petition in the High Court. To make matters worse for Hans Dembowski, said petition was endorsed by the then Advocate General of West Bengal..Though his work has not been too kindly received in India, his academic research in the field of environmental litigation in India earned him a PhD from Bielefeld University, Germany. And Hans Dembowski genuinely believes that there is nothing in his book that brings the Indian judiciary to disrepute..In this interview with Bar & Bench’s Aditya AK, Hans Dembowski, currently the Editor in Chief of Frankfurt-based magazine Development and Cooperation, talks about his interest in the concept of PILs in India, the issues addressed in his book, and more..Aditya AK: What inspired you to write a book on Public Interest Litigation in India?.Hans Dembowski: Well, I somewhat stumbled over the topic. I visited Kolkata – still called Calcutta back then – as a journalist and learned about huge PIL cases concerning the wetlands and the tanneries in 1993. Environmental litigation was something I was familiar with in Germany, but it wasn’t something that was supposed to be happening in a developing country, according to my sociology professors. They argued that the judiciary tends to be weak in developing countries, basically toeing the line of the government and serving the elites..But that was obviously different in the megacity I was visiting, so I became curious. And researching the matter for a PhD thesis was the best way to satisfy that curiosity. By the time the thesis was finalized, I knew that this was uncharted territory in academic terms. Legal scholars had assessed PIL, but there had been no major sociological study of PIL. Accordingly, Oxford University Press was quite keen to publish the book..Aditya AK: What issues did you address in the book?.Hans Dembowski: What I did was basically to put PIL judgments into the socio-political context of urban development. I read all judgments, court orders, writ petitions and other legal documents I could get hold of. I also read all planning documents I could get hold of. I interviewed the non-governmental activists who took the state to court and the lawyers. I relied on the press coverage of the court cases. I visited the locations. All this information served to get a thorough idea of how citizens were interacting with the government and what difference the courts made..They actually made quite a difference by making some state agencies give a public account on their action – and their failure to act. Basically, they were establishing a public sphere in which citizens and government officers engaged in rational rather than hierarchical discourse. And the results were relevant too. In many relevant aspects, court orders forced state agencies to fulfill duties they had been neglecting..Aditya AK: Could you give some examples?.Hans Dembowski: There are many, so I’ll just focus on particularly important ones..The High Court prohibited urban development in the Waste Recycling Region of the East Calcutta Wetlands. By and large, this order has now been obeyed for more than 30 years. The metropolis has grown fast along the borders of the protected area, but the area itself is still composed of vegetable fields, fish ponds and land used for other agricultural purposes – as it was before civil-society organizations appealed to the High Court. This is a huge area, and its border is quite close to the city center, so urbanisation pressure was, and is great..The new leather-processing centre to which the tanneries were located due to a Supreme Court judgment is outside the protected Wetland area. At the old locations, there was no space for effluent treatment, and the contaminated waste water was channeled into the sewage-fed fish ponds. So long as water is merely polluted with organic chemicals, there is no real danger in terms of food security. But persistent chemicals are a problem, so something had to be done. For a long time, CSO activists believed that the new leather complex is inside the protected wetlands area, and when I wrote the book, no maps were available to check things accurately. But to judge by Google Earth today, the leather complex is certainly not inside the protected area..There was considerable progress concerning civic amenities in Howrah. A new building for the wholesale fish market was finally made use of thanks to HC orders, and a down-town road was cleared and opened to traffic again. This road had become an informal garbage dump for temporary fish stalls that had become semi-permanent. Similarly, large parts of Howrah Maidan were made open to the public again, which matters because Kolkata’s twin city is very densely populated and has far too few public parks. Moreover, the HC ordered the authorities to handle hospital waste more responsibly. Hospital waste is a health hazard and must not be collected with household waste, as had earlier been the case..Perhaps the most spectacular progress in Howrah concerned the police morgue, where human corpses had been decomposing under the open sky. The HC ordered that bodies had to be stored in refrigerated rooms and burned regularly. That order set a precedent for the entire State of West Bengal where many public morgues were not being managed in a responsible manner..Aditya AK: On what grounds was the contempt petition filed?.Hans Dembowski: The contempt petition almost exclusively refers to a single chapter in the book. This chapter deals with the life world of the court. It does not accuse the court of any wrong doing, but it spells out that there are rumours of corruption and that the judiciary sometimes looks overburdened and ineffective. It was my duty as a scholar to take note of these matters since it would be impossible to assess the judiciary’s role in governance without doing so..It does not accuse the court of any wrong doing, but its spells out there are rumours of corruption and that the judiciary sometimes looks overburdened and ineffective. It was my duty as a scholar to take note of these matters since it would be impossible to assess the judiciary’s role in governance without doing so..Aditya AK: How would you argue that the content was not contemptuous?.Hans Dembowski: First of all, I’d like to emphasize that my book praises the judiciary for its independence, its role in deepening democracy and its ability to alleviate serious grievances..Second, as I have just indicated, I had to deal with the judiciary’s public image because the reputation of an institution matters if one wants to understand its socio-political relevance. Moreover, I clearly spelled out that gossip is not relevant in the sense of proven facts, but matters nonetheless in sociological terms. Very many Indian citizens told me, the German researcher, that they didn’t expect the courts to do much because they believed the courts were corrupt. They didn’t offer evidence for that claim, they just “knew”..If, however, many people share the same unproven view, that tells a researcher something relevant about an institution’s reputation. As I clearly explained these matters in the book, I don’t think I am guilty of making people believe unsubstantiated gossip. Instead, I made it very clear why gossip matters in spite of not being factually proven..Third, the controversial chapter of my book quotes Indian media. These quotes show that my personal account of the judiciary’s public image is a reflection of what is published in Indian newspapers and not just of what I was personally told. Actually, the strongest corruption claims made in the book are directly taken from Indian newspapers which were not accused of contempt of court for their statements. I don’t think quoting newspapers accurately amounts to contempt of court..Fourth, Bielefeld University gave me a PhD for the academic work I did, and Oxford University Press, a global leader in its field, decided to publish the book after the usual peer review. Academic books, by definition, are meant to contribute to discovering the truth, which is why academic freedom is a fundamental right. Academic work is not geared to maximizing sales by inciting emotions. The genre of scholarly books is expected to be balanced, rather than polarizing..Finally, I don’t believe any impartial reader would come to the conclusion that my book is meant to scandalise the courts in any way – and I certainly never intended to do so. I wrote an essay in sociology of governance and did my very best to convey a comprehensive idea of what PIL means in India in this context. I think that this intention should be quite obvious to anyone who considers the book as a whole rather than only focusing on one section of a single chapter..Finally, I don’t believe any impartial reader would come to the conclusion that my book is meant to scandalise the courts in any way – and I certainly never intended to do so..Aditya AK: Would you say that the contempt of court laws in India are far too strict? If so, what are the consequences of this?.Hans Dembowski: I cannot comment on the quality of contempt laws, especially as I have never been found guilty of contempt. What I find strange is that the contempt case has been kept pending for 15 years now. Lawyers tell me that contempt cases must be concluded fast because they have a bearing on public discourse and even the freedom of speech. Keeping a contempt case pending results in stifling public debate. Had the High Court ruled against me, I would immediately have turned to the Supreme Court. Public attention would have been guaranteed..I think the Indian public deserves to be fully informed on all issues of public interest – and that, by definition, includes the first thorough sociological study of environmental litigation in one of its big agglomerations. At very least, the High Court should have notified and heard me. My whereabouts in Frankfurt are not kept secret at any time; and India even has a consulate general in my hometown, so it would have been possible to get in touch with me..Aditya AK: What is the way forward?.Hans Dembowski: It’s obvious that OUP will not get involved in this issue again. But I’d personally be quite interested in cooperating with any serious Indian publisher who wants to bring the book back onto the shelves. It is publicly available in an e-book format, but to really matter in academic debate, it also needs to be found in university libraries and reviewed by the pertinent journals. I’ll happily forsake any income from books sold in India; the point is to make the book available to as many readers as possible. Of course, legal obstacles would have to be removed, but that should be feasible. It would take some time, but a good lawyer should be able to handle the matter..The e-book version of Hans Dembowski’s Taking the State to Court is available at this link.