Abstract: Concerns around aesthetics are not alien or separated from the lofty domain of law or legal practice. A largely textual discipline of the law is eventually transacted in spaces like court rooms, where the aesthetics of law itself (the presentation of law as neutral, superior and as authority signified through the arrangement of the court, the dress of lawyers and judges, the ways in which such bodies are presented) is reinforced and perhaps unraveled daily. Such an aesthetic also makes a demand on the ways in which people who encounter the law change their narratives and appearance, as described by Shrimoyee Nandini Ghosh in her paper on the erotics of helplessness and women who are presented in courts as victims.
This paper seeks to take that analysis further into the practice of other kinds of law, especially in the instance of juveniles in conflict with the law. Teenagers and juveniles whose performance of street-smartness and easy adoption of trends, has led to incidents in the courtroom where questions about caste, class, innocuous details like hairstyle have been raised by the judge. Simultaneously the lawyer has to present their body in a manner that is distanced (yet sympathetic) to the client and as an agent of the legal system, and here the performance of gender, class and occasionally caste too plays an important role. This paper seeks to explore these two dimensions from a critical perspective and open up questions around the relevance of aesthetics (performance studies, presentation of bodies, spatial and architectural arrangements etc.) to the nitty-gritty of the practice of law.
Panelist:Arnab Chatterjee, Lecturer in the Department of Social Work, Law College Durgapur and Researcher,Department of Philosophy, Jadavpur Unversity, Kolkata
Title: From Consent to Permission: Negotiating Post-Conventional Moral Consciousness and the Legal-Semiotics of Assaultive Intimacy
Abstract: If we adopt the taxonomy of a strand of contemporary German moral philosophy, then we must agree that postconventional or modern moral consciousness invokes moral autonomy for the individual - having lost touch (or inviting ‘others’ to loose touch) with the traditional support of customs and conventions and justifications that were external and not based on rational consensus. Apparently it is the subtext of the great modernizing project; ingrained in it is a certain notion of immorality too. The point is, how—when we are interrogating a universal moral signifier- for instance permission/permissibility -- in terms of historico-cognitive developmental stages of moral consciousness and communicative action, does consent appear: how does it stay at the stage of pre-conventional or conventional stages of moral reasoning and what transformations it has to undergo at the post-conventional stage. Why and what are those notions of immorality do we have now? The rules that make the moral grammar today —are they affected by this cognitive-historical faultline? Contemporaneously I examine whether it becomes necessary to localize and individualize consent through permission to theorize moral freedom at the level of the individual by which I ambitiously and anxiously try to render a very problematic rejoinder to the liberal / communitarian praxis. In this view, adulterous sex, sex among minors, sex with a nun, war crimes are matters of permission rather than consent; so is incest based on a mutual ‘yes’. Permission is a matter of universal or global speech act based on which --civilizational and civic, communitarian and cultural consensual validity claims are raised and tested. Permission may restore consent at the level of the atomic individual or may violate it. The second and the third part of my presentation studies cases of immorality and sexual assault to concretize these arguments – inverting in the process -- the traditional logistics of love and rape, spontaneity and seduction, character and conviction or the bureaucratized life world of harassment norms. Also, recent court judgments in Kolkata and elsewhere in West Bengal on the status of sexual intercourse subsequent to a betrayed promise of a marriage as being equivalent to rape are – in this wake -differently considered. What I’m trying to seek – however - is how to theorize actions that are morally indefensible or amoral ones —not on the grounds of simple atomic violation but on their own grounds – if there are any - which they can claim for themselves and also what it means to return to morality today which I strongly suggest.
7.4 Title: Gender/Governmentality/Violence
Chair: Tejaswini Niranjana
Panelist: Vibhuti Ramachandran, New York University, Department of Anthropology
Title: Rank, Reputation and Risk in Global Governance:The Politics of the US State Department’s Trafficking in Persons Reportin India
Abstract: Based on ethnographic research, this paper explores the production and use of the U.S. State Department’s annual Trafficking in Persons (TIP) report. Informed by interviews with government officials, NGO representatives and embassy officials in New Delhi in 2009-10, the author attempts to uncover how the information on human trafficking used for the production of this ‘indicator’ is collected and ‘inscribed’ (Latour 1987) into a specific form of presentation for global circulation, participating in what Ulrich Beck (2008) calls the ‘staging’ of risk as a mechanism of global governance.
The U.S. State Department is mandated by law (The Trafficking Victims Protection Act of 2000) to report to Congress on foreign governments’ efforts to combat human trafficking. This information is presented in the TIP report through a three-tier ranking of foreign governments according to the ‘extent of action to combat trafficking’. This numerical representation of the performance of foreign governments in combating human trafficking reflects an attempt to collate and simplify complex data into a standardizable form – an ‘indicator’ of human trafficking and global responses to it. As an instance of the turn to numerical indicators in global governance, already witnessed in the monitoring of transnational human rights compliance (Merry 2009), the TIP report corrals information on a particular government’s responses to human trafficking into a single rank.
The basis of the ranking is that government’s compliance with the ‘minimum standards’ specified under the US’ TVPA Act. The TIP exercise is, therefore, not solely an information collection effort culminating in the production of a numerical rank, but also part of a prescriptive project of global governance used to ‘responsibilize’ countries to comply with the measures of performance as set out in the indicator and to highlight failure to comply with the standards imposed. India has been placed in the ‘Tier 2 Watch List’ since 2002 as a country with a ‘significant number’ of victims of trafficking which has failed to provide ‘evidence’ of increasing efforts to combat trafficking in persons.
The interviews explored how the information on human trafficking mandated by the TVPA Act is collected, contested and circulated in India. Theoretically, the paper works to complicate the logics of accumulation and inscription integral to what Latour terms ‘centers of calculation’ through the messy politics of this process. It details he construction and denial of a perceived reputational risk to the Indian government as a result of its placement in this report. Further, it analyzes how the logic of ranking in the TIP legislation is predicated on the staging of human trafficking as a moral risk. This is achieved through legislative discourse heavily reliant on affectively imbued testimony from NGOs, sought as ‘partners’ in rhetorical attempts to fulfill a moral global obligation.
The author’s research reveals how the expertise of anti-trafficking NGOs becomes integral to what Rose and Miller (1992) have termed ‘government at a distance’. The paper draws on Foucault’s recognition (1991) of the role of ‘indirect’, non-state mechanisms of power in neoliberal governmentality. The labelling of certain crimes as human trafficking and the shaming of particular actors attendant upon this definition can be seen to emerge through the work of NGOs lobbying the Indian government to ‘galvanize’ its anti-trafficking interventions to address both a reputational and a moral risk. As part of a network of anti-trafficking actors ‘governing at a distance’, the author’s NGO informants were found to have used a range of ‘advocacy tools’ to ‘translate’ the norms and standards of the TVPA Act and indicator in terms of their own priorities.
Panelist: Dina M. Siddiqi, Visiting Professor, Center for Gender, Sexuality and HIV/AIDS, BRAC University
Title: Consenting to Coercion? Narrating Sexual and Other Entanglements
Abstract: Recently, the international network Women Living Under Muslim Laws (WLUML) carried a story on its website of a fatwa forcing a Bangladeshi woman to marry her ‘rapist.’ The case drew global and national outrage, seemingly yet another instance of Islamist disciplining of women’s bodies. Activists investigating the ‘illegal’ fatwa subsequently discovered that the woman had been in a consensual sexual relationship – with an implicit promise of marriage -- that soured after she became pregnant. Faced with an intransigent lover, she turned to community elders for redress for rape; the latter ruled that the couple must marry.
Undoubtedly, in the current geopolitical context, the rape/fatwa/forced marriage narrative sits comfortably with hegemonic understandings of gender relations in Muslim societies. Recourse to Islam as an explanatory framework works as an analytical blind spot, one that flattens context and complexity, and displaces more discomfiting questions around female sexuality.
Yet it appears that female desire – usually to marry at all costs – cannot be contained by legal or conventional feminist rationality. In this paper, I examine, from an anthropological perspective, cases of alleged rape and forced marriage, including the one above, that complicate any easy reading of either consent or coercion. For on the one hand, it is not uncommon for consensual sexual relations that lead to pregnancy to be glossed as rape. The rape narrative gives individual women and their families a claim to social respectability and community protection not afforded those who openly admit to exercising consent/sexual agency. On the other, local understandings of consent/rape are complicated by a legal provision (drawn from colonial law) that effectively allows women to charge lovers with rape – if they renege on a promise to marry. Moreover, it appears that some women use the threat of lodging a false rape case to convince wayward lovers to keep their promise of marriage. It is this “messy world of affect and emotion” as mediated by formal and informal law that the paper addresses.
Panelist: Rebecca John, Doctoral Candidate, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
Abstract: The criminal laws in the IPC invoked when a woman is sexually harassed do not name the offence as sexual harassment. Instead, they frame sexual harassment as offences that either amount to obscenity in public spaces or act seen to violate the modesty of women (under Section 294, 354 and 509 of the IPC respectively). The characterization of the violence faced by women in public spaces as ‘eve teasing’ normalizes the experience of sexual harassment. Hence it becomes imperative to interrogate how the state uses these laws in practice as sites of subversion and a technique of governmentality to control and regulate female sexuality and mobility in public places. Further, the discourses on sexual harassment is often localized – a reason why it does not get much attention – and in Kerala it is localized through the category of the sex scandal. The advent of the term sex scandal into the day to day discourses in Kerala has now given a new focus to the role played by various institutions of the state. According to Nicholas Dirks (2007) scandal itself is a peculiar historical form that only reveals its real meaning long after the public outcry and formal investigations have ceased. It also needs to be seen as an extension of the legal subversion, used in practice now by the state to govern individuals. Instead of offering us some oppositional, inverted view of social order, scandals, make women abject. They appropriate the language of the dominant and use it to draw the dominant into the despised realm of the dominated. In this context, this paper aims to look at how a scandal, is used to regulate and control the mobility and accessibility of the population in public spaces through the use of law as a technique of governmentality.
Panelist: Prashant Iyengar, Rural Development Institute, Hyderabad
Title: Re-narrativising Abortion in India
Abstract: Narratives of abortion in India have observed a remarkably stable template since colonial times. Typically these narratives activate some combination of the following five themes: firstly, the modern technology of abortion – contraception, pre-natal diagnostic kits, abortion pills, standards of clinical services and hygiene etc,
secondly, the “culture” of sex-selective abortion in India, thirdly, what I call Malthusian panic/apathy – the fear engendered, through haunting statistics of declining sex-ratios, of the extinction of the species, fourthly, to a limited extent, “psychological harm” and lastly, but importantly, consent. In this paper I examine the
assertions of each of these five themes, that envelop the “abortion debate”. I contend that this 'templatization' of abortion narratives has promoted an understanding of the phenomenon of female infanticide/foeticide exclusively in terms of a cultural or moral
deficiency. This masks the role that other factors - historical, political, institutional and economic - have played in producing, sustaining and intensifying this modern culture of female infanticide.This limited "cultural" understanding has in turn constrained the horizon of remedial measures that the government is willing to pursue. In this paper, I critically examine abortion accounts in India and the kinds of largely ineffectual remedies they has directed emphasis towards.
7.5 Title: Sight Me If You Can: The Law in the Everyday Panel Coordinator: Anusha Hariharan
Chair/ Discussant: tbc
Panel Abstract: While discourses around constitutionalism in the West have been pegged on the idea of universalism, the same trajectory cannot be expected in post-colonial nations, especially in South Asia. A subaltern perspective on contemporary constitutional theory has revealed to us that the concept of nationhood and hence, the conception of the citizen as she who encompasses a set of “rights” has altered the way in which constitutional theory, and consequentially constitutional law itself has been understood.
Theories of exclusion then become fairly central in understanding the concepts of the nation-state and the citizen in this context; the caveat that one must offer in the offset itself is that theories of exclusion be default assume the constitution as an ‘inclusive’ document. Further, the constitution also gets interpreted as a sacrosanct body of text, which can be amended, yes, but not re-envisioned. We know from the experience of Nepal that this notion has been contested.
This panel attempts to approach constitutional law differently. Through our papers, we wish to understand notions inherent in constitutional law – nationhood, states of exception, justice etc. – through Wittgenstein’s idea of the everyday. How can we understand these ideas, not as grand theories proclaimed at epochal moments, but as those that are intrinsic to everyday lives of people? At the same time, we wish to approach this, as Wittgenstein does, with a note of skepticism. How do we know that the law is present in these forms in the everyday? How can we question received categories about our experience of the law in these ways?