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The International Journal
of Not-for-Profit Law

Volume 7, Issue 2, February 2005

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Latin America

The Promise and Peril of Democracy (Full Text of Speech)
Jimmy Carter

The Promise and Peril of Democracy (Summary)
Joseph Proietti

Threat Resurges for Venezuelan NGOs [Spanish Translation]
Antonio L. Itriago and Miguel Ángel Itriago

Transparency Versus Government Supervision in Peru [Spanish Translation]
Beatriz Parodi Luna

Federal Law for the Promotion of Civil Society Organizations in Mexico
Consuelo Castro

Active Without Recognition: Obstacles to Development of the Colombian Third Sector
Adriana Ruiz-Restrepo

The Role of the Media in the Consolidation of Democracy in Latin America
The Latin American Program of the Woodrow Wilson Center for International Scholars

Articles

Philanthropy and Law in South Asia: Key Themes and Key Choices
Mark Sidel and Iftekhar Zaman

The Role of a National Donor Association: A U.S. Perspective
Robert Buchanan

California’s Nonprofit Integrity Act of 2004
Thomas Silk and Rosemary Fei

Progress on Civil Society Legislation in Turkey
Filiz Bikmen

Taxation of Grants in Russia
Yulia Checkmaryova

Reviews

Civil Society
By Michael Edwards
Reviewed by Stephan Klingelhofer

The Law of Charities
By Peter Luxton
Reviewed by Richard Fries

Does Civil Society Matter?: Governance in Contemporary India
Edited by Rajesh Tandon & Ranjita Mohanty
Reviewed by Bindu Sharma

Governing Nonprofit Organizations: Federal and State Law and Regulation
By Marion R. Fremont-Smith
Reviewed by Michael Bisesi

Balkan Identities: Nation and Memory
Edited by Maria Todorova
Reviewed by Gerald M. Easter

Something to Believe In: Politics, Professionalism and Cause Lawyering
By Stuart A. Scheingold and Austin Sarat
Reviewed by Patricia Lyons

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Does Civil Society Matter?: Governance in Contemporary India

Edited by Rajesh Tandon & Ranjita Mohanty
Reviewed by Bindu Sharma*

[E]ven in modern times, communities existed before governments were here to take care of public needs. There were many groups of people with a common sense of purpose and a feeling of duty to one another before there were political institutions forcing them to perform their duties.

– Daniel Boorstin, The Decline of Radicalism (1969) 

Clearly, civil society does matter. The free association of citizens in India (and much of the world) has a long and rich tradition that goes back to pre-colonial communal societies. An individual’s responsibility to the community was well-defined within the confines of the extended family, tribe, community, or village social structure. In much of the South, modernization and colonialism undermined indigenous social relations, whereas the Soviet state did the same in the countries of Eastern Europe and Central Asia. Historically, particularly after World War II, governments increasingly assumed a wider range of responsibility in governing nation-states. However, in the last two decades, the growing disenchantment of ordinary people with the institutions of the state has resulted in the resurgence of civil society.

Rajesh Tandon and Ranjita Mohanty have summarized the current discussion on the resurgence of civil society and the myriad definitions of the term currently in use in development literature. The book is an excellent compendium of essays, with theoretical debate relating to the interface of civil society and governance mixed well with case studies that study the current actions of civil society in making its voice heard.

The essays in the book, collectively, provide perspective on the development of civil society in India from colonial to post-colonial and then to current times. The reader discerns certain features of the vast array of civil society activity from a vantage point above the fog of celebratory rhetoric that commonly obscures such activity in landscapes such as India. We see a wide variety of civil society activity, yet such activity appears not to lead to empowerment for those who need it the most. For the least empowered, a lack of education, wealth, land, and other factors continues to hinder the access to power through civil society structures.

Populism, such as “people’s power” movements and the like, frequently serve to draw attention to inequity and distortions in the power structure, and then merely empower an ancillary class of civil-society activists and their self-generated agendas acting in opposition to state structures and other traditional authority. Thus, while at first glance, civil society activity has grown greatly, and encouragingly so, in recent decades in India, and it has involved a mass of the populace, the collective message of the book’s essays is that such mass participation in itself is not proof of mass empowerment.

In the first essay, “A Critique of the Notion of Civil Society as the ‘Third Sphere,’” Neera Chandhoke explores the myriad definitions of the concept of civil society in recent theory, making the point that civil society is part of a larger canvas and therefore needs to be looked at in context of the complex interrelationships. She cautions that overuse of the concept of civil society can lead to a loss of analytical rigor and conceptual clarity in contemporary theorization: “when concepts lack these attributes, both the value and validity as politically relevant and worthy categories for action diminish considerably.”

Time and time again, the ability of civil society to coalesce against the tyrannical – whether it be the state, the elites, or the powers that be – sends an important message about the power and desirability of civil society. Despite that, we must be careful in whose hands civil society ends up, as Chandoke points out – “Eastern Europeans had exchanged the tyrannies of socialism and party apparatuses for the tyrannies of capitalism, political elites, corporate bureaucracies and ethnic majorities determined to stamp out any kind if plural life.” She rightly notes that “civil society is only ambiguously the source of democratic activism.” In her conclusion, Chandoke writes, “Civil society is not an institution; it is rather, a process whereby the inhabitants of the sphere constantly monitor both the state and the monopoly of the power within itself.”

Rajesh Tandon, in his essay on “The Civil Society-Governance Interface – An Indian Perspective,” gives a brief on the emergence of the concept of civil society in contemporary development literature. Defining civil society as “a collection of individual and collective initiatives for the ‘common public good,’” Tandon provides a simple and extremely usable definition. He also makes a much-needed differentiation between government and governance. Governance does not merely denote "government"; rather, it is a process of looking after public resources for the common public good. In that light, India has a perfectly legitimate, democratically elected government, but its governance of the country’s economic and social resources leaves much to be desired.

Tandon puts forth a very concise framework of civil society’s interface with governance:

Different forms of civil society contribute to different aspects of the governance agenda. Thus, as a space, civil society provides an opportunity for voicing issues related to the priorities and practices of governance, while as a movement it typically creates collective pressure for government reform. And civil society organizations contribute to the practical tasks associated with self-governance.

The different forms of civil society are consistent with Chandoke’s assertion that civil society is a part of a larger canvas.

In the “The Crisis of Governance,” Jayaprakash Narayan provides a brief on the social stagnation of Indian society over the centuries, asserting that “the insularity of society from the state ensured that vertical fragmentation of society continued and institutions remained static and frozen,” and that “Indian society even at the height of its glory did not allow the fresh breeze of new ideas and institutions to blow in.” After independence in 1947, social and economic reform planning was ambitious and broad in scope, but despite the ambitious plans, the state focused most of its energy on the economic sphere, making only weak attempts to challenge the prevailing social hierarchies and failing miserably at social reform. What we have today are pockets of immense economic progress, together with economic depredation of the masses and social exploitation along age-old feudal hierarchies, as well as crumbling public order and corruption on an unprecedented scale and beyond the imagination of any at the time of the freedom struggle. Narayan believes that the misuse and disuse of the tools of government (financial, human, legislative) have resulted in a grave crisis, to the extent that the state has increasingly become an obstacle in people’s march towards progress and at times even threatens people’s sovereignty.

T.K. Oommen’s essay moves the civil society-governance debate from the realm of confrontation and explores the cooperative interrelationship in which all three sectors – state, market, and civil society – can engage. He asserts:

First, the autonomy of the three sectors does not invest them with autarky. Second, autonomy does not necessarily erode reciprocity. Third, the boundary demarcation between these spheres does not mean that they do not overlap. Fourth, there is a division of labor between these spheres. And finally, it is a balance between the three spheres that makes for a “good society.”

Harsh Mander’s essay looks at the phenomenon of corruption in India by public authorities, its dynamics, impact, and causes, and the methods and dilemmas associated with its possible control. In “Corruption and the Right to Information,” the focus of Mander’s analysis is the poor and marginalized. In the second half of his essay, he asserts that “it is only through an enforceable [emphasis mine] right to information that the ordinary citizen can ensure that government actions and decisions promote public welfare and accountability.” Mander cites the example of the Masdoor Kisan Shakti Sangathan (MKSS) and its struggle for the right to information in the northwestern State of Rajasthan, observing that vigilance and assertion by even the most disadvantaged can bring to book the powers that be.

The second half of Does Civil Society Matter? analyzes five case studies of public resistance to inappropriate government action or public policy (“Save the Chilka Movement,” by Ranjita Mohanty); inaction by the government in the face of non-implementation of public policy and social reforms (“Democratic Governance, Civil Society, and Dalit Protest,” by Sudha Pai and Ram Narayan, and “Land Distribution for Kol Tribals in Uttar Pradesh,” by B.K. Joshi); and attempt by people seldom if ever considered worthy of recognition as citizens of India to become part of the entitlement network of the state and other public institutions (“When the Voiceless Speak: A Case Study of the Chhattisgarh Mukti Morcha,” by Neera Chandoke, and “A View from the Subalterns: The Pavement Dwellers of Mumbai,” by Bishnu N. Mohapatra).

Ranjita Mohanty, in “Save the Chilika Movement: Interrogating the State and the Market,” talks of the Chikla Bachao Andolan, a movement by people, mostly fishermen, who in the early 1990s successfully resisted the Integrated Shrimp Farm Project (ISFP) – a joint venture between the Tata Iron and Steel Company (TISCO, a private sector firm) and the state Government of Orrisa for prawn cultivation and export. The project threatened the livelihood of the fishing communities living around the lake, people who for generations had farmed the lake with age-old knowledge of ecology and resource sustainability. Mohanty focuses on the collective resistance put up by otherwise-competing groups, disparate voices within the rural communities and student groups and other community organizations from the provincial and state capital. The movement raised important questions about government policy formulation, historical resource use and control, and issues of equity and access of the marginalized versus the local power elites.

In “When the Voiceless Speak: A Case Study of the Chhattisgarh Mukti Morcha,” by Neera Chandhoke, the title itself is telling, as the essay describes the struggle of unorganized labor comprising the informal sector against extremely exploitative policies of the formal sector, in this case the Bhilai Steel Plant. Chandhoke illustrates the oppression of the local population of Chhattisgarh by the dominant groups in cahoots with the state. The essay is a classic example of the absence of governance and a deeply divided, hierarchical civil society that has denied the underprivileged and the marginalized their very rights as citizens of independent India.

In “Democratic Governance, Civil Society, and Dalit Protest,” Sudha Pai and Ram Narayan examine the reluctance of the Indian state to protect the life and dignity of the poor, the oppressed, the marginalized sections of civil society, in this case the Dalits in India, historically referred to as the untouchables or harijans. After independence, the state – through the constitutionally guaranteed right to equality, abolition of untouchability, and affirmative action – sought to right the wrongs heaped on this group over centuries. However, the powerful elitist civil society fought to keep the status quo. Only since the 1980s, with the rise of the lower-caste political parties, have the Dalits mustered the strength to have their voice heard. The struggle still goes on, and this essay on the Dalit assertion in western Uttar Pradesh, especially Meerut, examines the violence and injustices heaped on this previously voiceless group and the subsequent hesitant justice meted by a highly politicized state government.

Bishnu Mohapatra, in “A View from the Subalterns: The Pavement Dwellers of Mumbai,” asks the quintessentially important question: Are all groups in civil society equally capable of forming associations to ensure that their interests are regarded as legitimate? He explores the lives of the pavement dwellers of Mumbai, whom the state views as encroachers of public space and refuses to even recognize their identity as citizens. In the early 1980s, following a large-scale demolition of slums undertaken by the government of Maharashtra, social activists and concerned citizens took up their cause. The study details the context, the issues, and the modes of intervention used over the years by the community groups and organizations working with the pavement dwellers to get the state to respond compassionately to their rights and needs. The battle between the pavement dweller and the state is an unequal one, and the struggle will go on for the foreseeable future.

In “Land Distribution for the Kol Tribals in Uttar Pradesh,” B.K. Joshi illustrates the non-implementation of social reform legislation enacted soon after independence. In 1950, with the abolition of the zamindari system, the government sought to distribute to the Kol tribals titles to the very land of which they had been dispossessed by the upper- castes over the centuries. Despite such attempts at social transformation, exploitation of the Kols by the upper castes and local administration officials continues, with emancipatory policies remaining merely on paper. Only after the founding of the All India Community Help Group (Akhil Bharatiya Samaj Sewa Sansthan, or ABSSS) in 1978, and after a long hard struggle, by the end of 1997 poor Kol families started to get possession of the land that had been allotted to them in the 1960s and ’70s.

As the empirical examples stand testament, it may be more appropriate in the Indian context to ask: Is civil society civil? Decades after independence, and despite the development agenda of the State, a majority of citizens have been untouched by the economic progress and social reforms boasted by State institutions. Moreover, civil society is still mired in the hierarchical feudal relationships that define the stagnation of the social arena. Modernization has been restricted to the economic arena, with socio-cultural and political reform absent. The State today is all-powerful, and civil society looks to it for guidance. Post -independence, the state appropriated many functions of civil society and it is now loath to let go for fear of diminishing its stature. Having lost its creative and associational edge, civil society must work hard to rebuild it. As Tandon puts it in his introduction:

The state is not a neutral actor that can be taken to task and brought back to play its role more efficiently without any reference to the social setting in which it operates.… Civil society is not inherently virtuous; it is also fractured from within.… Good governance thus does not only mean reforming the state; the reformation of society also needs to be simultaneously undertaken.

Notes

* Bindu Sharma is an independent development consultant based in Singapore and a member of the board of the International Center for Not-for-Profit Law.

 

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