Second Law and Social Sciences Research Network (LASSnet) Conference: SITING LAW
DECEMBER 27-30, 2010 at FLAME, PUNE
LIST OF ABSTRACTS
1.1 Title: Law and its Publics: S. P. Sathe Memorial Panel
Chair: Amita Dhanda
Panelist: Deepa Das Acevedo, Department of Anthropology, University of Chicago
Title: Law in the Public’s Interest?
Abstract: Although the short history of public interest litigation (PIL) in India has been replete with questions about efficacy and scope, a lack of information and jurisprudential theory has meant that decisive critiques of PILs have remained rare. This paper offers such a critique via an examination of how PILs transform the relationship between the law and both citizens and the state. PIL claimants are not required to specify a personal harm; rather they identify perceived harms to society which may or may not affect them directly. Although the ability to do so seemingly empowers the public, in fact it broadens the scope of the law to an extent that is detrimental to citizens’ interests. There are at least two reasons why PILs weaken citizens vis a vis the state. First, PILs extend the scope of the law so that non-legal methods of critique or resistance become increasingly obsolete. Second, PILs concentrate power in limited and non-elected officials (judges and lawyers) by redirecting disputes over governance to those who are not intended to govern. This paper will use case studies as well as recent social science scholarship to argue that despite the Supreme Court’s reputation as a vanguard of liberal democracy in India, the augmentation of judicial powers that is an inevitable effect of public interest litigation is anything but liberal or democratic.
Panelist: Jayna Kothari, Advocate, Karnataka High Court and Researcher, Centre for Law and Policy Research
Title: Disability Rights and the Failure of Public Interest Litigation
Abstract: Public interest litigation (“PIL”) began to be recognized in the High Courts and Supreme Court since the late seventies and early eighties and provided for various unorthodox remedies, such as continuing mandamus orders by the courts, and the courts’ supervisory powers on enforcing interim orders. These remedies and enforcement measures were improved to some extent during the nineties. In the last decade however, the life of public interest petitions in the courts have taken a new avatar, with fewer instances of the courts’ supervisory orders to ensure enforcement.
In the case of disability rights, these concerns assume greater importance. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act 2005 (“PWD Act”) mainly addressed the rights to equal opportunities in employment and education to persons with disabilities. Along with the rights to equality and non-discrimination, the PWD Act also provides for several socio-economic rights such as provision of reasonable accommodation in education and employment, access to transport and the roads and provision of aids & appliances. While in individual instances of discrimination faced by persons with disabilities, the courts have been very progressive in enforcing the PWD Act, the experience of disability rights groups in public interest petitions has been very different. PILs filed by disability rights groups concerning implementation of the PWD Act with respect to access to transport and public buildings, access to employment by proper identification of jobs with reasonable accommodation and equal access to education for children with disabilities have not been very successful. In these petitions, the courts have failed to use the inventive remedies such as supervisory powers and continuing mandamus orders, to ensure effective implementation.
My paper analyses some of these cases in depth, and argues that there are several reasons for the failure of PILs in the field of disability rights. Disability rights such as provision of reasonable accommodation and access often make budgetary demands and call for state action. The issue of resources coupled with the larger issue that disability rights are still not taken seriously by the courts may be a reason for the failure of PIL for disability rights. My paper would look into these issues and attempt to suggest the way forward.
Panelists: Dipika Jain, Jindal Global Law School, New Delhi, India Dinesha Samararatne, Faculty of Law, University of Colombo, Sri Lanka
Title: Mapping the Construction of the “Public” in Public Interest Litigation and the Public Trust Doctrine in Indian and Sri Lankan Public Law
Abstract: Public Interest Litigation (PIL) and the Public Trust Doctrine are prominent legal concepts used in contemporary Indian and Sri Lankan public law. While the concept of PIL in South Asia was developed largely in India, neighbouring Nations like Sri Lanka localised it through purposive interpretation of the Sri Lankan Constitution. This article seeks to review selected cases received as PIL by the Supreme Court in Sri Lanka and India and decisions where the Public Trust Doctrine has been invoked, in an attempt to understand the political, economic, cultural etc. factors, if any, which shaped the construction of the idea of the “public” in this area of public law and also to explore the differences, if any, of the idea of the “public” in these two jurisdictions.
The main argument would be that the construction of the “public” is derived from the agendas of Non-governmental organizations and the political philosophy of select Supreme Court justices. If this argument is accepted, will it result in the idea of “public” being misleading? On the other hand, if “public interest” and “public trust” have been upheld and promoted through these concepts, how can the ‘positive impact’ be identified and measured?
The main objective of this paper is to demonstrate that even though PIL and the Public Trust Doctrine have been presented as tools for resisting power, these concepts are also a product of power and that it has acted as a medium for resistance by the judiciary, NGOs, lawyers etc. vis-a-vis particular executive actions/decisions. Does this mean that protecting the “public” through the law can only be a myth? Does it mean that whenever there is a direct/indirect benefit to the community at large that such result is only of secondary value? Relevant legal theory will be used as a reference point in looking for answers to these questions. The methodology adopted in this paper will be empirical in nature.
Panelist: Kalyani Ramnath, Visiting Faculty, National Law School of India University
Title: Terror / Tranquillity: Romesh Thapar and its Precedents Speak on the Subject of ‘Public Safety’
Abstract: This paper aims to explore the origins of a language of rights in the context of a newly inaugurated Constitution in India. Case law in the first years of the Constitution, exhibit a preoccupation with ‘public safety’ and ‘maintenance of public order’ at the same time that they talk of the freedom of speech and movement that the newly made citizens of the republic are to enjoy. Several terms enter the constitutional schema here – “public order”, “public safety” and “public tranquillity” – and are placed in a definite hierarchy as judges attempt to resolve challenges on grounds of violations of Fundamental Rights. This paper is an attempt to provide a context to this method of scaling violence that is employed by the court.
A lively discussion on what level of violence undermines the security of the state is evident in Romesh Thapar, a case filed by a newspaper involving a challenge to the Madras Maintenance of Public Order Act, 1949 on grounds of violation of Article 19 (i) (a) and decided by the Supreme Court in May 1950. The precedents that it refers to are an interesting illumination of legal-social developments in late colonial and early independent India – including the Government of India Act, 1935, the institution of the Federal Court, the Public Safety Acts in the context of Partition and consequent communal riots in 1947- 1949 and finally, the coming into force of the Constitution – and attempts to evolve, within a judicial decision, “citizen” from subject and separate “criminal” from cause lawyers. In what ways did the transition from colonial to popular government affect the understanding of rights in the judicial imagination, given that a majority of precedents in Romesh Thapar were pre-constitutional? Do legal precedents speak louder than the call to right historical wrongs? In what ways, to parody Foucault, might society be defended from the dangers of public disorder?
1.2 Title: Werner Grephart Panel Details to be received
1.3 Title: Contemporary Agrarian Radicalism and Speaking Subjects of Indian Democracy
Panel Coordinator: Atreyee Majumder
Chair: Devika Bordia Panel Abstract: Radical agrarian politics in South Asia, whether everyday forms of peasant resistance or violent outbursts of rebellion, date back at least to colonial state-making processes and landscape-regulatory regimes of the nineteenth century. Residues of such radical opposition to the colonization of nature and populations seeped into early post-colonial moments such as the Tehbhaga and Telengana movements, as well as later agrarian movements such as Naxalism and its extreme-left variants. Agrarian landscapes thus rendered multiple sites of battles for justice in contemporary Indian post-colonial era.
The contemporary agrarian theatre of justice comprises the developmental state, corporate capital, international developmental aid agencies, civil and political society. These actors navigate this terrain in order to produce competing ideologies of development, distributive justice, and control over landscapes. Varying conflicts over people and places envelope the agrarian landscape in ways that cut across historical categories of lord and peasant, elite and subaltern. From both above and below, actors operating with divergent notions of justice and morality in the countryside seek to circumvent and occasionally subvert existing structures of democratic state politics. New kinds of alliances and networks thus emerge to connect left-wing intellectuals and activists with their counterparts in political society. At the same time, middle-class moralities betray anxieties and ambivalences over the emergent theatres of agrarian conflict. This panel offers explorations into the question: how does agrarian radicalism shape an ethos of democratic justice in the contemporary moment in India?
Title: Unmaking or Remaking Leviathan? Rulers, Civilizers, and Rebels in Contemporary Jharkhand
Abstract: As state, media, activist, and academic discourses speak in one voice over "Maoists," I want to ask in this paper who is a Maoist, what it means to rebel against the state, and what it tells us about state-society relations in the heart of India. Based on ethnographic fieldwork and archival research on Jharkhand, I argue that anti-state rebellion today, as before, is produced as a by-product of structural interactions between the state, civilizers such as missionaries and NGOs, and rebels, that is, at the interface between civil and political society in terms of Partha Chatterjee's well-known dichotomy. These interactions produce particular kinds of consciousness and agency that are radical in their politics yet revisionist rather than revolutionary. By arguing thus, I hope to refute both the statist myth that there is an organized All-India Maoist party masterminding rebel violence everywhere as well as the romantic notion of subaltern resistance arising from a purely negative, autonomous consciousness. It is better, I conclude, to understand the present rebels as engaged in local and regional contests over land, forest and water resources (jal, jangal, jameen), and hence, as exercising a Lockean right to rebel to negotiate sovereign power within the centralized structures of the Indian state.
Panelist: Vikramaditya Thakur - Ph.D. student, Department of Anthropology, Yale University
Title: ‘Learning’ to Lead: Forced Displacement, Relocation and the Subaltern Leadership
Abstract: What changes are wrought within a socially marginalized community in the wake of forced displacement due to development projects and forced relocation to new colonies by the state? What is the nature of social and cultural capital (Bourdieu 1972, 1991) facilitating the rise of subaltern leadership among the displaced population? What transformation does this organic leadership (Gramsci 1971) undergo over time while negotiating with the state? Scheduled Tribe groups have been at the receiving end of the nationalist development agenda. They are being displaced by dams and forestry schemes, their resource base being eroded, and more importantly, being appropriated by the post-colonial state. Their response has been in the form of collective mobilization and protest action, often initiated by external political activists, for protecting their interests. The Bhils and other hill communities of western India, have been at the centre of a long campaign, from 1987-2009, against the Sardar Sarovar dam over river Narmada that is displacing over 200,000 people. After their movement failed to stall the dam, they accepted the state’s offer to move to relocation colonies even as their mobilization got revived for demanding better amenities in the new location. Based on ethnographic study, I explore the nature of subaltern leadership and its role in negotiation for greater resources from the state. I show that subaltern leadership matures over time along with the growth of a social movement to subsequent chart their own independent course. They make transient alliances with various groups including external social activists and political parties to further their own agenda.
Panelist: Atreyee Majumder, Department of Anthropology, Yale University
Title: Of Kneejerks and Fresh Starts: Leftover Dilemmas of West Bengal
Abstract: Contemporary West Bengal is an urgent theatre of dilemmas of the post-colonial left. The violent clashes between the Left Front communist government and agrarian citizenry (coupled with opposition parties, especially the Trinamool Congress) over state-sponsored land grab, threw open many rhetorical battles featuring state-socialism, liberal democratic egalitarianism, middle class anxieties and intellectual assessments of the political left. This was evident in the sharp contrast in the rhetoric dominating public spaces of urban and rural West Bengal in the past year. The paradox lay in the fact that political factions on opposing sides spoke similar languages of ‘progress’ and ‘knee-jerk reactions’ to their middle class audiences, while eulogizing symbols of the ‘agrarian’ in the hinterland. The categories -‘progress’ and ‘peasant’ - are competing and urgent containers of political currency at this time in West Bengal.
Having lost heavily in various rounds of eliciting of electoral opinion in the past two years (the parliamentary elections, the municipal and panchayat elections), the Left Front is precariously balanced between the concerns of not losing the agrarian support base formed over thirty years of reign, not losing hold over its identity as further on the left end of the political spectrum than social democrat parties like the Congress, yet warming somewhat to the forces that bring about aggressive economic growth. This politics is played out in the public domain in West Bengal where the ‘left’ is constantly affirmed and condemned. These rhetorical battles involving the middle-class, the left intelligentsia, political spokespersons, media are being enacted in Bengali and English newspapers, in political pamphlets, graffiti, speeches given in the public domain in West Bengal. In this paper, I bring up instances from field research in West Bengal in 2009-2010, to analyse the public cacophony around the ‘left’ on the Indian democratic platform.
1.4 Title: Restitution of Conjugal Rights in Indian Matrimonial Law: What is its History, How is it Used, How Does it Impact Women’s Rights and How is it Viewed from the Bench? Panel Coordinator:Sylvia Vatuk
Chair: Veena Gowda Panel Abstract: This panel will explore from a variety of different angles the issue of restitution of conjugal rights in the various codes of personal law in India. Since the early 19th century the right of a person of either sex to ask a civil court to order his or her estranged spouse to return to the marital home and resume conjugal relations and responsibilities has been recognized in India, having been adopted from British matrimonial law. The earliest Indian case law in this regard arose in connection with Parsi, Muslim and Christian marital disputes, but later the provision was incorporated into Hindu personal law as well. The proposed panel brings together an inter-disciplinary group of scholars, each of whom will approach the law of restitution from a different, though related, perspective. Historian Faisal Chaudhry will introduce the topic with a discussion of the significance of one of the earliest Indian restitution cases for a change in the way Indian marriage was conceptualized, as it moved from being viewed as a status-based relationship to being regarded it as a type of contract. Anthropologist Srimati Basu will draw upon her experience observing the proceedings and interviewing litigants and judges in the Kolkata Family Court, in order to show how the law of restitution is used in practice as a negotiating strategy between spouses, around affective issues related to such matters as economic resources, kinship relations and domestic violence. Lawyer and legal scholar Flavia Agnes will address restitution of conjugal rights within the context of a discussion of the broader issue of whether a concept of “irretrievable breakdown” of a marriage can or ought to be recognized in Indian matrimonial law, given the absence of any settled right of a woman to a fair share of matrimonial property. Finally, anthropologist Sylvia Vatuk will analyse the discourse of some recent judicial decisions in restitution cases, revealing the extent to which judges’ reasoning is influenced by their sharing widely accepted cultural assumptions about the true meaning of marriage and proper gender roles within it. Consequently they repeatedly insist on the importance of retaining this provision of the law as a means of preserving the institution of marriage, notwithstanding much evidence that it actually does no such thing.
Panelist: Faisal Chaudhry, Harvard University
Title: Conjugal Restitution Doctrine and the Notion of Marriage as a Contract
Abstract: The late-nineteenth century view of law, according to the legal scholar Duncan Kennedy, was characterized by an elaboration of the distinction between private and public law, ‘individualism,’ and a commitment to legal interpretive formalism. Classical legal thought divided relations amongst private actors from those between private actors and the public person of the state. It further divided the former into relations taking place in the family and those taking place in the market. This division turned on the distinction between relations of ‘status’—whose content is legitimately determined by the will of the state —and those of ‘contract’— on terms determined only by the will of the parties themselves. Against this backdrop a question emerged over whether marriage constituted a contract or a status. I will discuss how this difficulty over the nature of marriage manifested itself in India in relation to the doctrine of restitution of conjugal rights. Starting with the landmark 1856 Perozeboye case — involving a suit for restitution by a Parsi wife against her husband — there began to emerge in India a ‘contractual’ view of marriage. Because this ran contrary to the predominant view of marriage as a status relation, the globalization of this bit of classical legal thought into the subcontinent proved somewhat unique. Ongoing ideological battles over whether Indian communities really ‘had’ law or how autonomously legal their norms were, turned such seemingly technical questions of personal law into sites of symbolic contest. The doctrinal idea that marriage was more like a ‘contract’ than a ‘status’ took on something of a life of its own in the wake of Perozeboye. Not only did Muslim reformists and revivalists embrace the idea, but — not notwithstanding public sphere claims that Hindu marriage was a ‘sacrament’— it found exponents among Hindus as well.
Panelist: Srimati Basu, University of Kentucky, U.S.A
Title: Making Whole (Again): Restitution and Reconciliation in the Kolkata Family Courts
Abstract: This paper considers the affective life of law through tracing discourses of restitution and reconciliation from judges, litigants and case adjudication in the Family Courts of Kolkata. Indian divorce law straddles these concepts with profound ambivalence: while its very existence is predicated on undoing marriage, it insistently and explicitly seeks to defer such separation, depicting it as innately harmful. Section 9 of the Family Courts Act (1984) and the Parliamentary introduction of the Family Courts Bill both refer to the stated aims of the Act including “conciliation in marriage,” and the latter frames it in terms of “preserv[ing] the institution of marriage and promot[ing] the welfare of children” (1984, 192). Section 9 of the Hindu Marriage Act (1955) provides for “restitution of conjugal rights” in cases where a spouse has “without reasonable excuse, withdrawn from the society of the other.” Based principally on participant observation of Family Court cases, this paper traces some of the ways in which these legal provisions serve as strategies to negotiate resources, kinship, authority and violence within marriage, and particularly the deployment of affect around questions of marital wholeness in these contexts. In demonstrating the drastically gendered consequences of these seemingly neutral, benevolent provisions, it considers equity claims of “conjugal rights.”
Panelist: Flavia Agnes, Majlis, Bombay
Title: Notions of ‘Retrievable’ and ‘Irretrievable Marriages’ in the Context of Women’s Rights
Abstract: When is a marriage deemed to be savable and when is it deemed to be broken down beyond repair? What are the implications of these concepts for women in litigation processes? The paper starts off with a preliminary hypothesis that in the context of the gendered notions of marriage, and the unequal power balance that prevails within matrimonial relationships, the neutrality of these provisions within marriage laws only serves to deprive women of their rights. While the notion of ‘saving’ a marriage against the wishes of the wife violates women’s right to fundamental freedoms under Article 21, upholding the plea of the husband that a marriage has broken down beyond repair, deprives women of their crucial right to matrimonial property and the right to shelter. Against the background the paper will analyse recent judicial trends as well as recommendations of Law Commissions and their implications upon women’s lives, regarding the theory of ‘irretrievable breakdown of marriage’ in the Indian context. The concern of the paper is whether such a concept can be introduced within marriage laws in the absence of a corresponding notion of ‘division of property upon divorce’. Since women’s economic rights within marriage are confined to archaic notions of ‘maintenance’, in most cases where women are working, they are deemed to be not entitled to maintenance. Even in cases where they are awarded ‘lump sum maintenance’ the amounts awarded are meagre On the other hand, property accrued during marriage is divided on the basis of title which is an archaic notion of English law. Against this background the paper will examine the notions of restitution of conjugal rights, irretrievable breakdown of marriage and division of matrimonial property as they get played out in the context of contemporary matrimonial litigation.
Panelist: Sylvia Vatuk, University of Illinois at Chicago, U.S.A.
Title: ‘To Restore the Comforts and Bliss of Married Life’: Judicial Reasoning in Some Recent Restitution Cases
Abstract: A high proportion of all matrimonial suits filed in Indian Family Courts or other civil venues involve pleas for "restitution of conjugal rights" (RCR). Although women of most religions can and do file such suits, the typical petitioner is a man whose wife has filed suit against him for divorce or for maintenance and who asks the court to order her return to the marital home, to "restore [to him] the comforts and bliss of married life." The British law upon which the right of RCR in India was originally based was repealed in 1970 and in India there have been numerous challenges to the provision in various personal laws, some of them successful. But its validity under the Hindu Marriage Act was upheld in a 1984 Supreme Court decision, primarily for contributing to an important social purpose, namely: the preservation of the institution of marriage. I will review some of the reported case law on this subject, focusing not so much on the outcomes of the cases, per se, but rather on the reasoning employed by judges to explain a decision to grant or refuse to issue an order for RCR. An analysis of judicial reasoning in such cases is most revealing of the ambivalence that surrounds the issue of divorce in Indian society and of the extent to which judges are influenced by cultural/ideological notions concerning the purposes of marriage, ideal gender roles and proper husband-wife relations and duties. It also highlights an extreme disjuncture between the way this legal provision is actually employed by litigants in the lower courts and the contention of courts at various levels of the system that it is vital to retain it as a bulwark against widespread marital breakdown within society.
1.5 Title: Rethinking the State, Development and the National Question in Sri Lanka
Panel Coordinator: Thushara Hewage, Ph.D. Candidate, Anthropology, Columbia University
Chair: Aditya Nigam
Panel Abstract: In the aftermath of the military defeat of the LTTE and the consolidation of the Rajapakse government, the nature of the Sri Lankan state has become the subject of renewed attention, from liberal diagnoses of its multiple crises of governance, to more optimistic assessments of the opportunities war’s end offers for the resolution of the national question through neoliberal development. This panel will critically assess such understandings of the present conjuncture and ask how we should approach and rethink the linked questions of the state, development and the national question in its light. Informed by older, now marginalized, leftist traditions of Sri Lankan scholarship that always sought to situate constitutional struggles in the context of an emancipatory politics pitted against the development of neoliberalism in the island, this panel will in particular seek to interrogate the prevailing understanding that an appeal for a return to a state governed by the “rule of law” and constitutional first principles substantively comprises a politics in itself. Panelists will attempt to conceptually and historically situate contemporary discourses of development, minoritization and emergency rule in Sri Lanka by attending to their neglected genealogies and their constitutive relationships to the politics of nationalism and post-colonial state building. Individual papers will respectively examine the discursive production of minority identities by state led development projects in the north and east; the formation of critical elements of the contemporary development paradigm during the period of late colonialism/ decolonization; and the disavowed centrality of emergency to the liberal identity of the Sri Lankan state. Through such reassessments, this panel will attempt to interrogate the political adequacy of the categories and concepts that underpin current understandings of the Sri Lankan state, and suggest different lines of inquiry that might enable us to gain a better uptake on the contemporary conjuncture.
Panelist: Sumith Leelarathne, Research Associate, International Centre for Ethnic Studies, Colombo
Title: Uthuru Wasanthaya and Negenahira Navodaya: Development as a Hegemonic Discourse
Abstract: This paper aims to explore the state-led development projects initiated in Northern and Eastern provinces during the last phase of the ethnic civil war, namely “Uthuru Wasanthaya” (Northern spring) and “Negenahira Navodaya” (Eastern revival) as discourses of power and control. It questions how the population in this area has been targeted, objectified and governed by hegemonic apparatuses of state-led development so that new social identities and meanings were produced. The political strategy behind these two development projects was not concealed from the outset, given that the government authorities have interpreted them as a part of their larger project of integrating ethnic minorities into the state and development. This study examines whether the above mentioned strategy has been successful in the sense of safeguarding equality among different ethnic communities or whether it has deployed new strategies of social exclusion, marginalization, and control by subjecting ethnic minorities to the state and the dominant nationalist ideology of the state. The research is theoretically framed by the concept of development as a discourse in which meanings are produced and certain mechanisms of power are deployed, as it was explained by anthropologist Arturo Escobar.
Panelist: Ahilan Kadirgamar, Ph.D. Candidate, Anthropology, City University of New York
Title: Development Discourse and the Decades of Decolonization
Abstract: The twenty five year long civil war in Sri Lanka ended last year with the military victory of the Sri Lankan State over the separatist Liberation Tigers of Tamil Eelam. Throughout the decades of war there was a vibrant “devolution debate” on the need for state reform.
However, after the recent military victory, the government of President Rajapaksa now claims that the political problems facing Sri Lanka can only be addressed through an accelerated process of “development”. Throughout Sri Lanka’s post-colonial history competing conceptions of “development”, shaped both by local and international discourses have dominated political and policy debates in Sri Lanka. Furthermore, “development” as a priority particularly for the state has time and again displaced the issue of state reform and devolution, directly aggravating ethnic, class, caste, and gender relations in the process. This paper will engage a range of works on how the process of decolonization has shaped the discourse of “development”. What is the relationship of the concept of “development” during the decades of decolonization to other concepts such as welfare, class, caste, minorities, land, peasantry, devolution and more generally the national question? This paper will explore such a genealogy of “development” by examining works focused on political changes and economic problems during the decades of decolonization. Can the current discourse of “development” be traced to both historical forces at play during the process of decolonization as well as the character of historical writing during the last many decades looking back on that period? The paper also seeks to understand the relationship of the discourse of “development” to the formation of the post-colonial state constrained by imperial power. Particular attention is paid to political economy of reforms propelled by the Donoughmore Commission and the Soulbury Commission.
Panelist: Thushara Hewage, Ph.D. Candidate, Anthropology, Columbia University
Title: Emergency, Legality and the Postcolonial State: Reading Counterinsurgency through its Archives
Abstract: Sri Lanka’s post-colonial history has been characterized by protracted periods of emergency rule and one of the most pressing questions of the contemporary post LTTE conjuncture concerns when the current state of emergency will cease. In the context of its most recent discussion within Sri Lankan liberal constitutionalism, my paper observes how the question of intractable emergency is increasingly problematized within a conceptually impoverished political sociology of ethnicity. This turn to ethnicity not only renders earlier arguments about constitutional norms somewhat nugatory, but also identifies the entrenchment of emergency as a symptom of the “illiberal” character of Sri Lankan polity and “state failure”, serving to shield liberal commitments from undue scrutiny. Through a discussion of an earlier protracted period of emergency, the aftermath of the 1971 insurrection, my paper attempts to reconsider the relationship between emergency and the liberal identity of the Sri Lankan state. I focus on the judicial apparatus of the Criminal Justice Commission, instituted to try and punish insurgent leaders and ascertain the causes of the insurrection. I examine how the Commission was deemed crucial to Sri Lanka’s continuing viability as a model Asian democracy, through its re-establishment of due legal process and its authoritative interpretation of the violence of counter-insurgency as a temporary expedient of emergency. I try to understand what the Commission’s arguments about its violent conditions of possibility tell us not only about the characteristically disavowed centrality of violence to liberal regimes, but also the distinctiveness of Sri Lankan post-colonial political modernity.
1.6 Title: Rights Discourses
Chair: Sitharamam Kakarala
Panelist: Anu Varghese, Centre for the Study of Culture and Society
Title: Human Rights as a Conceptual and Remedial Framework: An Enquiry
Abstract: Human rights is a framework that is undeniably pivotal in articulations regarding and interventions in a dizzying range of issues like custodial violence, displacement, sexual harassment, extra-judicial killings, death penalty, prostitution, child lobar, domestic violence etc. While human rights activists are able to intervene in several of these issues in order to highlight violations and to seek various kinds of remedial action, the framework is also faced with several challenges in its ground level activities. I would like to look at some of the issues that human rights activity in India has been involved with, and examine the effectiveness of the interventions made. What is the nature of the intervention that the rights framework is capable of making, and does it have any limitations? For example, does understanding the Naxalite and State violence as a human rights issue allow us to usefully analyse and engage with the phenomena? What are the conceptual limits that the human rights framework comes up against in its engagement with various issues within India? I will also examine in the paper if there are any specific characteristics to the manner in which the human rights discourse channelises articulations on the nature of violation and demands remedial actions. How will such an understanding enrich the task of analysing social and political events and devising more effective methods of dealing with them? What is the charge, purchase and effect of this concept at the various levels of its deployment? How far and how well has the framework carried us in both thinking through and acting on the various exigencies that make up our everyday realities?
Panelist: Sarada Balagopalan, CSDS
Title: In The Mean Time: Schooling, Childhoods and the State
Abstract: Complex circuits of ‘concern’ around poor children, that traverse both state and civil society, underlie the recent Right to Education Act. Although legal discourse usually traces this to the Unnikrishnan case and its expansion of Article 21, it is not ideas of injustice but rather an economic-managerial logic that underlies specific aspects of the RTE. Within this it is the ‘technical’ provisions in the Act that become cause for disagreements between state and civil society, disagreements that ironically produce, circulate and naturalize a particular imagination of schooling in the lives of the poor children. This growing faith in law to re-order these lives symbolizes an historical moment in which the figure of the poor child is being made available for wider consumption. The hubris of believing that one’s actions can make a difference in someone else’s life has become commonplace in the middle class imagination of the poor child, particularly in recent campaigns around teaching these children and sponsoring their education. This constellation of various communities of concern do not necessarily see their role as aiding the state in implementing the law (particularly the 25% reservation for the poor in private schools!) but view their work as urgent precisely because this emergent apparatus of the legal puts into circulation certain ethical certitudes of what constitutes an ideal childhood with education forming its greatest truth. The proposed paper invokes what this legislation sets in place as a series of affects that have produced a new language around poor children and communities, care, rights, ethics, responsibility etc. The naturalization of the sensibilities contained in this terminology is schooling’s assumed role as the self-styled bearer of modernity. This role, largely overdetermined within legal and policy discourse, remains provocatively unsettled in poor children and their communities everyday negotiations with school, and it is this that the paper attempts to discuss.
Panelist: Ipshita Sengupta, UNHCR, New Delhi
Title: Beyond Human Rights: Understanding the ‘Ethic of Responsibility’
Abstract: This paper shall critique the failure of contemporary human rights to alleviate global poverty in the face of economic globalisation and how such failure necessitates a discussion on identifying and investigating alternative strategies for addressing the human rights deficit in addressing global injustices. This is where the emerging discourse on responsibility can inform poverty reduction policies and programmes, both at the national and international level.
The author shall also argue, that an ethic of responsibility finds limited expression through an obligation of international cooperation and assistance in international human rights law based on an understanding of ‘shared responsibility’ and signals the practical way forward in addressing global poverty and suffering.
The dominant language, dynamics and politics of human rights, often overshadow the need to specify who bears the responsibility to deliver on those rights. In a world of extreme poverty, deprivation and suffering, it becomes necessary to identify those particular agents who are able, obliged and willing to relieve such suffering. The philosophy of assisting the distant stranger may be explained through cosmopolitan theories of justice. The works of Nancy Fraser, David Miller and Iris Marion Young further shapes this approach which moves away from a purely statist view of justice by generating obligations on political, social and economic multilateral institutions.
An ethic of responsibility shifts the focus towards challenging the unfair power structures that abuse the universal human rights regime to perpetuate poverty and injustice worldwide and offers practicable remedies or solutions to the problems at hand. . The moral distance between human rights and multilateral institutions like the IMF/World Bank results from a denial of their institutional role in the perpetuation of global poverty. It is such ‘diffusion of responsibility’ that the ethic of responsibility seeks to redress through the duty to assist that emerges from ideas of global justice and not mere charity.
Panelists: Sharanjeet Parmar, Human Rights Program, Harvard Law School Namita Wahi, SJD Candidate, Harvard Law School
Title: From Promise to Progress: Citizens, Courts and the Right to Health in India
Abstract: Past decades have seen increased litigation on socio-economic rights in many countries. India has been a pioneer in this field, including litigation on the right to health. As health rights litigation grows in other countries, an examination of the Indian experience is warranted to ascertain and evaluate the factors behind such litigation as well as its impact on the formation of health policy and the delivery of health services.
Such an evaluation is particularly important since India’s performance on basic health indicators remains low when compared to similarly-situated developing countries. Ranked the fourth lowest in the world in terms of public spending on health as a percentage of GDP, the situation appears incongruent in light of India’s high rates of economic growth, and broader social justice commitments made by the government, including toward realization of the UN Millennium Development Goals.
This paper seeks to identify the major contributions of health rights litigation towards the realization of the right to health in India. In so doing, it examines health rights litigation from the perspective of claims formation, adjudication, implementation and corresponding social outcomes to health rights litigation. Following this analysis, it appears that India’s health rights litigation has made important contributions to norm formation, ensuring access to justice for marginalised groups and creating/sustaining channels of communication and negotiation between affected groups and state actors to reach remedies that appear workable to all parties.
Indian courts have played a significant role in health rights litigation by recognizing basic goods and services as legally enforceable entitlements. Whether and how these developments result in measurable social outcomes will have to be considered more extensively over time as broad-based needs begin to be more systematically addressed by this litigation. However, court-imposed remedies remain insufficient to bring about systemic changes in health and economic policies needed at the macro level to deliver a basic standard of health services throughout the country.
2.1 Title: Affective Leadership: Balagopal and the Reimagining of Judicial Activism, Human Rights, and the State
Panel Coordinator: Jinee Lokaneeta
Chair: Manoranjan Mohanty
Discussant: Arvind Narrain
Panel Abstract: This panel is dedicated to a critical engagement with the writings of K. Balagopal, a foremost theoretician, human rights activist and people’s lawyer, whose death in October 2009 was a stunning blow to left and progressive communities in India and elsewhere. In addition to his formative influence on both Andhra Pradesh Civil Liberties Committee (APCLC) and Human Rights Forum (HRF), Balagopal was well known for his incisive analysis, prolific writing, and, in particular, his provocative and direct style of engagement posing uncomfortable questions for theoreticians and practitioners alike. In that spirit, each of the Panelists will present on a theme that has been greatly impacted by Balagopal’s work. While constantly challenging state repression, Balagopal was careful to analyse the changing nature of state power and law’s violence. Similarly, despite being at the forefront of protests against state brutality, Balagopal raised questions of morality and ethics for radical left political movements, and questions of autonomy for the human rights movements. Balagopal questioned a consequentialist approach to procedural norms in the context of criminal trials that also poses challenges for current debates on Public Interest Litigation. In all, this panel represents a continued conversation with Balagopal and some of the themes that emerged under his affective leadership.
Panelist: Ajay Gudavarthy, Centre for Political Studies, JNU
Title: Human Rights Movements in India: State, Civil Society and Beyond
Abstract: This paper is an attempt to trace the various phases of the human rights movement (HRM) and the assumptions underlying each of them in terms of the inter-relationships between the state, civil society and democracy. The 1970s witnessed the first phase of the HRM— the ‘civil liberties phase’—working within the framework of state-civil society complementarity. HRM along with emphasising the autonomy of institutions also struggled to recover a ‘rights based civil society’, where all citizens could have access to fundamental rights. The 1980s were marked by a shift to the second phase — the ‘democratic rights phase’—with a new state versus civil society framework. During this phase, the HRM made efforts to construct civil society as a pure ‘realm of freedom’ that stood squarely outside the state and consisted of various militant and radical social movements. Towards the end of the 1990s, the third phase — the ‘human rights phase’—reconstituted itself on a new civil society versus political society framework. The new political society stressed the importance of locating and condemning human rights violations at the civil societal level, including those committed by radical social movements. Finally, the contemporary moment is ironically striving to move beyond the political by basing itself on an abstract moral dimension.
Panelist: Sitharamam Kakarala, Senior Fellow, Centre for the Study of Culture and Society
Title: Critiquing the Critique: Balagopal and the Re-framing of the Idea of Human Rights in India
Abstract: This paper will address certain concerns about conceptualising the idea of
‘rights’ in the making of human rights movement in India and the role of
Balagopal in re framing the terms of the debate that lead to a ‘paradigm
shift’ in human rights praxis, especially, though not exclusively, in Andhra
Panelist: Anuj Bhuwania, Department of Anthropology, Columbia University
Title: The Procedural is Political: Public Interest Litigation and its Discontents
Abstract: K. Balagopal’s critical interventions in the civil liberties movement in India have led to vigorous debates on the political status of procedural norms in criminal trials, in particular questioning the tendency to view these norms in a ‘consequentialist’ manner. However, court procedure more generally (as opposed to that of criminal trials of serious offences alone) continues to be commonly understood in instrumental terms and seen as being of limited political importance. Even the Indian Supreme Court has adopted the rhetoric of viewing legal procedure itself as an impediment to justice: constitutional provisions like the Supreme Court’s power to do ‘complete justice’ under Article 142 have been interpreted in ways that enable the Court to go beyond statutory law and overcome all procedural norms, most notoriously in the Bhopal judgement of 1991. Clichéd rants against “procedural technicalities” using phrases like “Procedure is a handmaiden of justice and not its mistress” are repeated ad nauseam in appellate court judgments and courtroom speech. This impatience with procedure, I will argue, has taken particularly extreme forms in the context of Public Interest Litigation (PIL). The remarkable extent of malleability of procedure under PIL and the widespread celebration of the procedural departures introduced by PIL reveal the kind of political disrepute that legal procedural norms enjoy in contemporary India. In this paper, I will take the example of PIL to argue against such lack of political concern for court procedure. The politics of courts, I will argue, is also located in its material forms and closer attention to these procedural norms is key to any political understanding of law.
Panelist: Jinee Lokaneeta, Department of Political Science, Drew University, New Jersey
Title: Paradoxical State Killings: Encounters and the Death Penalty
Abstract: In this paper, using Balagopal’s seminal piece on death penalty and systematic work on encounter killings as a framework, I explore the paradoxical nature of state killing in India. The paradox is represented by the fact that on one hand the number of encounter deaths (denied by the state) remains extremely high while on the other hand, death penalty (authorized by the state) has declined in recent years. The recent killing of Azad, a leader of the Maoists who was allegedly picked up by the Andhra police and shot dead, alongside the ongoing CBI enquiry into the encounter of Sohrabuddin (implicating high officials of the Narendra Modi government) is a stark reminder of how encounter deaths are a large part of the reality of the functioning of the Indian state. Apart from a long history of encounter deaths in the context of radical left movements in Andhra Pradesh, the Indian state has often used encounter deaths in situations such as challenging the Mafia in Mumbai, and the targeting of minorities in many different states of India. In contrast, another form of legalized state killing namely death penalty has declined over the years thereby becoming rare both jurisprudentially (authorized in the rarest of rare cases) and in practice (number of executions). The paradox, I suggest, has significant implications for debates on the nature of state violence in India.
2.2 Title: Comparative Law in South Asia
Chair: Sudhir Krishnaswamy
Panelist: Menaka Guruswamy
Title: Crafting Constitutional Convergence in Nepal
Title: Exploration Towards Human Rights Mechanism in Asia
Abstract: After the birth of the United Nations (UN)- in 1948- concepts, structures and practices regarding human rights progressed and instruments like Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) came into existence in next twenty years. Ensuring their implementations at the regional-national level were expected but not encouraged properly.
In 1977, the UN General Assembly (UNGA) for the first time initiated establishment of regional settings for effective promotion and protection of human rights. For the first time UN formally promoted UN Charter suggesting for regional mechanisms which later reiterated in Vienna . Nevertheless the first regional effort was already been realized in 1950 when Europe took the lead and set European regional human rights system - followed by America by 1969 Africa in 1981 and Arab in 1994 .
The Asia-pacific region never was too keen for any such arrangements except South East and in some cases Central Asia. It is evident that being the largest and most populated part of the world Asia is full of diversities and unlikely any one like other regional system would be successful to promote, protect and establish human rights.
This paper will aim to explore diversities of human rights norms. It will try to inquire different regional mechanism and try to reveal why Asia- still remains aloof of regional human rights systems? Why there are none such strong responses to initiatives like other regions/ sub-regions? And how to precede forming human rights mechanism promoting, protecting and ensuring human rights in the region?
2.3 Title: Law, Labour and Neoliberalism
Chair: Ashwini Sukthankar
Panelist: Rupal Oza, Director, The Women and Gender Studies Program, Hunter College, CUNY, New York
Title: Securing Economic Enclaves in neoliberal India
Abstract: The movement of people from place to place, either voluntary or compelled, has in recent years been further complicated by an elaborate security apparatus. Sanctioned by the state and operationalized by private contractors, security has moved far beyond its conventional parameters to penetrated everyday life in a manner that is quite unprecedented. My focus in this paper is to explore one such dimension, by examining the manner in which the security apparatus has become enmeshed with economic development. Drawing on the proliferation of Special Economic Zones across India, I explore the juridical manoeuvrings deployed by the state to secure these zones for private capital investment. Through an elaborate set of laws and rules governing lobar, tariff, and compensation, these industrial and residential enclaves eject its residents forcing them to relocate. This paper is part of my larger project, which aims to map the altered geography generated through enclave economics in neoliberal India. I am concerned with who is displaced; to where, and in what ways does geographical relocation further remove people from their means of livelihood funnelling them into becoming surplus lobar I demonstrate that neoliberalism generates a fractured geography whereby distant places are brought proximate by capital flows, while simultaneously disconnecting lands that lie adjacent to each other. I suggest that attempts to realize this uneven geography has generated a discourse of security at different scales from gated communities to industrial boundary fences to international security walls.
Panelist: Maitreyi Krishnan, Alternative Law Forum, Bangalore
Title: Disorganised Labour and the City
Abstract: Any understanding of the growth of our cities – our idea of it in the present, our imagination of it in the future and the actual reality – is incomplete if we do not take into account the effects this has on the invisible and invisibilised parts of our society. It appears that implicit in such imagination is this invisibilisation that permits the maintenance of inequality in opportunity and status.
The idea of minimum wages, basic social security and minimum food intake as benchmarks of a developing society has inherent in it the breaking down of the constitutional guarantees of equality of status. Instead the understanding of State Obligations is reduced to a minimal standard of living for some of its citizens in order to ensure maximum living to the rest.
The Commonwealth Games and the impact it has had on marginalized sections in Delhi clearly shows how our ideation of the city permits the violations of fundamental rights of a certain class of citizens in order to ensure the ‘beautification’ and ‘transformation’ of a city to fit a set world-view.
The story is no different elsewhere. In this context, I will look specifically at three groups of workers in the city of Bangalore. The obligations of the State towards these workers, whose contribution to the city are imperative for its growth, is set at a minimum and in most cases even these standards are not met. I will look at the shaping of the City by construction workers, municipal workers and domestic workers, and the manner in which they are kept out of the imagination of the very cities that they build.
Panelist: William F. Stafford, Jr., Independent Researcher
Title: Forced Labour and the Limits of Imagination
Abstract: In this paper, I would like to look at the articulations of the category 'labour' in the jurisprudential conversation between Indian law and labour standards embodied in the instruments of the International Labour Organisation regarding forced labour. The importance of this seemingly routine exercise is to concretely explore how the figure of law informs the social category of labour within law beyond the construction of definitions, either within or prior to law.
In its historic ruling in People's Union for Democratic Rights v. Union of India, the Supreme Court of India found that working for wages less than those legally stipulated as minimum constitutes forced labour. This ruling is persistently challenged by the International Labour Organisation on the grounds that a distinction must be maintained between application of 'force' and 'exploitation' – where the former consists of working involuntarily or under threat of penalty, and where the latter would include any wage payment related practices. In making this argument, the ILO frames the Supreme Court ruling as explicating and relying on a notion of 'economic force'. However, fundamental to the argument of the Court is the relationship of a worker to legal entitlements (and law) as constitutive of the freedom of their will, where the Court argues that as it is impossible to conceive that one would work for less than their legal entitlement, application of force must be present to make them do so, and where payment of a wage at or above the legal minimum rate indicates absence of forced labour. Alongside this, the paper would explore the arguments of the ILO concerning: 1) the nature of 'voluntary' labour as developed in the context of determining when prison labour in privately run prisons may be allowed, and the appropriate indicators of the same, and 2) arguments concerning determinations of child labour as forced labour, where the same figure of “inconceivability” of certain work situations being voluntary is found.
Panelist: Aakrati Gupta, Student, FLAME School of Liberal and Management Education