Panelist:Priya Thangarajah, Graduate of the National Law School of India University, Bangalore
Title: The Everyday and the Exception
Abstract: This paper attempts to look at certain areas where 'ordinary' constitutional rule has been suspended - a 'state of exception' - in order to understand the relationship between the law and the lived experiences of people. While it is important to understand what the state of exception entails to constitutional law in theory, it is equally important to know how the everyday experiences of people in these regions are affected by it. For one, our understanding of the ‘state of exception’ does not allow us to differentiate between the varied experiences of people who live under these conditions. Moreover, an understanding of lived realities under the ‘state of exception’ using the juridical framework is further disempowering for those living in these realities.
Instead, in this paper, I propose an understanding of the law through everyday experiences. From 1972, regions of the North East in India have been under the Armed Forces Special Powers Act, 1958. This law allows the armed forces to use any force - even lethal force - for the maintenance of public order. How do people who are beaten up and harassed by state authorities relate to the state of exception? How do we understand allied ideas of nationhood and citizenship through these experiences? To be sure, any understanding we get from such an exercise will not satisfy law’s aim to be ‘stable‘ or ‘uniform’.
I argue that these underlying notions, which allow the law to reject everyday experiences contribute further towards the disempowerment of people in states of exception. Neither allowed to exercise their right to self-determination, nor granted full citizenship, how do they relate to the law itself? How can we move towards an understanding of law that emerges from the lived experience of people? This paper will use my interviews with people in parts of the North-East in India and Sri Lanka, who are in/have been in states of exception in order to answer these questions
Panelist:Vivek Shivakumar, Graduate of the National Law School of India University, Bangalore
Title: The Everyday, Justice and the Indian Constitution
Abstract: Justice appears in the Indian constitution in various avatars. It appears as a goal at the edge of the text (the Preamble), as the mighty power of the Supreme Court to do ‘complete justice’ (Art. 142), as a spectral presence in the fundamental rights chapter, as an exhortation (Art. 39A), in memorializing certain injustices (Art. 17) and perhaps as an illocutionary force when judges are referred to as ‘Justices’. Justice is also evoked in various ways in court judgments and other constitutional practices, both just and unjust. In face of these multiple forms, how do we begin telling the story of justice in the Indian constitution? Surely, the tale of justice as an abstract political principle is at best one-dimensional and at worst, dangerously misleading. We are immediately confronted, then, by the question of narrative. How and from what perspective do we tell this story?
The story also requires us to reflect critically about the nature of the relationship between law and justice, even in their ‘traditional’ sense. Do principles of justice apply directly to rights (conceived as a relation between people and objects - H.L.A. Hart, “Definition and Theory in Jurisprudence”) as they do to objects? In what other ways is our understanding of the transmission of principles of justice into law faulty?
But what does it mean for principles of justice to be faulty? Are they imperfect because they do not respond fully to everyday life (understood through the work of Wittgenstein and Stanley Cavell)? How do we understand law and justice, not just in principle, but also as being responsive to conditions of the everyday? In my paper, primarily through analysis of case law, I attempt to move towards a different understanding of justice and the Indian constitution.
Panelist: Anusha Hariharan, Masters Student, Political Studies, Jawaharlal Nehru University, New Delhi
Title: Locating “Exception” in Constitutional Discourse: the Case of Jammu and Kashmir, India
Abstract: Jammu and Kashmir is a vastly heterogeneous region, like any other, in terms of ethnicity, culture, socio-political and geographic context as well as faith practiced. Claims over citizenship differ vastly for a Ladakhi-Tibetan Buddhist in Leh, as opposed to a Muslim from Srinagar or a Muslim in Kargil District. Needless to add, caste, class and gender would further problematize these identities as well as the trajectories that these citizenship claims and movements have taken.
Over the last six decades, Jammu and Kashmir has witnessed repetitive suspension of constitutional norms resulting in a perpetual “state of exception”. The enactment of Article 370 in 1953, and the imposition of the Armed Forces Special Powers Act (AFSPA) in 1990 in certain parts of Jammu and Kashmir could be cited as “constitutional grounds” which has precipitated this “exception”. The AFSPA enables the elimination of institutional checks on the army and invests it with unfettered power over the citizen population, thus dissolving mechanisms by which it can be held accountable for human rights violations.
Due to the enactment of these statutes, the region has also undergone severe militarization. Militarization also does not restrict itself to only those regions that its corresponding statutes specify. It necessarily spills-over, geographically, to other parts of the state, which live with the everyday realities of the effects produced. This in turn creates an ambiguous network between the civil and the military, which in turn generates a specific kind of political reality (ies). If we were to do a reading of Giorgio Agamben’s “state of exception as a paradigm of government (2005)” in this context, we would discover that this “exception” has exited the scope of the juridical, by virtue of violating basic constitutional rights that should ideally be inalienable from any citizen.
One of the questions this paper seeks to explore would be: What does this mean for the “state of exception” described above? How does it read these varied claims of citizenship? The claim made by the Ladakhi-Tibetan Buddhist and the Muslim from Kargil District are structured on different premises given the trajectory of these movements. What are the caveats we would offer when trying to understand these myriad claims within a politico-juridical framework?
Secondly, is it possible to find a language of translating everyday, political realities of those living in “exception” within the juridical? For the discourse around constitutionalism to change, these experiences of the post-colonial ‘south’ necessarily need to be incorporated, diffusing a euro-centric universalization of constitutionalism. Experiential reality becomes crucial in this endeavor, thus creating the need to find a language for this within the law (Baxi, 2000). However, this theory has itself been critiqued and generated much debate over the years. The paper would look at an understanding through these critiques as well.
The paper would try and understand these realities based on interviews with different political groups – civilians, as well as human-rights defenders and researchers who are engaged in activism and research on this issue. The discourse as it has evolved in journalistic writing will also be looked at, apart from looking at case law and academic writing.
Panelist: Dr. R Rajesh Babu, Public Policy and Management Group, Indian Institute of Management, Calcutta
Title: The Indian Constitution and the Changing Dimensions of Property Rights
Abstract: The legal history of the rise and fall of property rights in India is well documented. The Parliament and the Supreme Court of India after decades long tussle over the power of eminent domain, ended in diluting the fundamental right to property. The 44th Constitutional amendment, in other words, expanded the power of the Indian State to expropriate private property. The then Indian social and political context justified such arbitrary expropriation. Since the early 1990’s India embarked on the path of liberalization and globalization. As part of its effort to promoted trade and foreign investments, India committed itself to strengthen its legal environment. Large scale efforts were made in particular to strengthen domestic legal regime pertaining to the protection of foreign investment and intellectual property. India’s obligation under the TRIPS Agreement and BITs guaranteed safety and protection for alien private property in India. In other words, since the 1990’s India assumed obligations which afforded higher protection of alien property. The policy shift presents a serious anomaly. India seems to progressively and selectively modify its legal regime on property rights in favour of alien property rights as against the property rights enjoyed by the Indian citizens under the Constitution. To the extent that international expropriation rules provide foreign investors and IPR holders with greater rights than the Constitution of India, they are also likely to provide them with greater property rights. In other words, the scenario beseeches the question whether Indian laws and international obligations provide foreign investors and IPRs with greater property rights than those available for the Indian citizens. The question assumes great relevance in the context of the Governments approach towards land acquisition for ‘developmental’ purpose.
In this context, this paper is an attempt to revisit the debate on private property rights in India in the changing global context. The paper examines the changing law and the role of State in the context of the post liberalization effect of additional protection for alien private property. It also examines the evolving trend and growing concern about the manner in which the State is exercising the power of eminent domain. The paper argues for revisiting the constitutional status of private property rights, particularly from individual private owners whose identity and livelihood are attached to the property.
Panelist: Namita Wahi, SJD Candidate, Harvard Law School
Title: The Paradoxical Debate on Constitutional Property in India
Abstract: The constitutional property clause was perhaps one of the most extensively debated provisions in the Constitution and following its enactment, the most contentious. The decades after independence saw significant clashes between the legislature and the judiciary in constitutional takings cases with the Supreme Court striking down acquisition laws on constitutional grounds and the legislature responding with amendments to the Constitution which redefined property rights. These include the 4th amendment (1955) which ousted judicial review of the adequacy of compensation, the 17th amendment (1964) which amended the definition of “estate” in Article 31A to include ryotwari settlements, the 25th amendment (1972) which replaced the word “compensation” in Article 31(2) with the word “amount” and finally the 44th amendment (1977) which ultimately abolished the constitutional right to property. Despite this contentious history, there has been no systematic study of the Court’s property rights jurisprudence over the period since India’s independence.
In this paper, I analyse the historical and political circumstances within which the constitutional property clauses were drafted to refute the popular notion that (a) the constitutional rights provisions were transformative and (b) that the subsequent clashes between the legislature and the judiciary in constitutional takings cases during the period 1950-1980, stemmed from ideological differences between a progressive legislature and a conservative judiciary.
Using evidence from the Constituent Assembly debates and Supreme Court judgments in constitutional takings cases, I argue instead that the lens used by both the drafters of the Constitution/subsequent legislators and the Court to view this issue were conditioned by the facts of modernity, i.e. modern forms of property, like industrial property were considered desirable even as traditional forms of property like zamindari property were sought to be eliminated. Moreover, the Court’s disagreement with the legislature stemmed more from considerations of securing judicial autonomy and expanding judicial power than from disagreement about the underlying substantive issues. I also argue that the court’s decisions during this period were determined less as a reaction to historico political events and more by factors like the common law culture, education and training of lawyers and judges and the reception of comparative jurisprudence.
Panelist: Eesvan Krishnan, Candidate for a DPhil in Law, University of Oxford; Visiting Fellow, Centre for Policy Research
Title: Private Speculations and the Public Interest: N.C. Kelkar’s Land Acquisition Bill
Abstract: Since 1863, Indian law has permitted local government to compulsorily acquire land on behalf of a privately-owned company if the acquisition is regarded by government as being for a ‘public purpose’. The use of coercive public power on behalf of private entities seems always to have been the subject of some controversy. In a nod to qualms about acquisitions for companies, the mover of what became the Land Acquisition Act 1894 made an assurance that ‘the Act will not be use in furtherance of private speculations ... in which the public have no direct interest’. This assurance, whatever its precise meaning, may or may not have been kept: little is known about the practice of acquisitions for companies in the ensuing years. There were, indeed, several instances in which the legal status quo was challenged in the fledgling Legislative Assembly. The most notable of these occurred in 1927 when N.C. Kelkar, a protégé of Tilak and a figure of some importance in the Home Rule movement in Bombay, introduced a private members Bill which would have substantially overhauled the 1894 Act in favour of landowners. The Bill makes for remarkable reading; among other proposals, it would have permitted land to be acquired only for Indian companies; that is, companies that held rupee (as opposed to sterling) capital and had a majority of Indian directors or shareholders. It is no surprise that the reaction of officials to the Kelkar Bill was extremely negative. Kelkar was accused, among other things, of being motivated by ‘racial feeling’ and of being willing to risk India’s economic development for political gain; the Bill was, predictably, never enacted. The story of the Kelkar Bill is worth telling for its own sake, as a forgotten chapter in the history of land acquisition and the history of the Home Rule movement. It is also worth telling for insights into attitudes of the era about the contribution of private enterprise to the public good and, more broadly, about the ‘public’ in ‘public purpose’. The question naturally arises: what has persisted, what has changed?
Panelist: Nandini Nayak, Doctoral Candidate, Department of Development Studies, School of Oriental and African Studies (SOAS)
Title: Claiming the Landscape: Assertions for Land and Livelihood in South West Madhya Pradesh
Abstract: In my paper, I look at how, a people’s collective, or sangathan engages with the state in asserting claims to land and livelihood. Importantly for this conference, I explore how these assertions are critically centred on legality within an often fraught landscape of contestation. I draw on work such as that of Alan Hunt (1992) where he states, “…law constitutes or participates in the constitution of a ...field within which social relations are generated, reproduced, disputed and struggled over, the most important implication being that within such a field, … legal discourses in play both place limits of possibility on social action and impose specific forms of discursive possibility...”
The incidents/events discussed in the paper are centred on a proposed mining site in a village. A mining lease is granted for a plot of land without the knowhow of the land owner but with the support of the ‘local state’. The landowners opposition to this draws on membership of a ‘people’s collective’. This opposition and challenge to the authority of the ‘local state’ is met with hostility, and assertions, by the local state, of illegitimacy of ‘the collective’ itself. The activities of the collective are labelled ‘Maoist’, and a sit-in in opposition to mining results in arrests and legal cases filed against some members of the collective. Drawing on textuality and legal frames emerge as critical tools for the collective to assert its own legitimacy. Legality and legal frames further, emerge as critical to assert claims to land and livelihood, and to challenge a ‘preordained script’ where the state dominates.
Through the medium of these incidents, events, and moments, I look at the manner in which the idea of citizenship is encountered by a predominantly adivasi community in south west Madhya Pradesh.
Events described in this paper took place in Badwani district, in Madhya Pradesh, central India between 2002 and 2006. This paper draws largely on archival material and secondary sources of information. One specific case forms the empirical basis of this paper, and claims to generalisation are not being made. However, on the basis of this case, some comments can be made related to the varied forms that the state takes. This in turn has an impact on the manner in which the idea of citizenship is encountered.