Chair: Uma Chakravarti Panelist: Anuradha Bhasin
Title: Impunity and Sexual Violence in Kashmir
Abstract: The double rapes and murders case of Shopian (May 29-30, 2009) is not a case in isolation. It is a leaf out of history of human rights abuse and absolute impunity that men in uniform enjoy. The security forces including the state police have been accused in thousands of cases for torture, humiliation, encounters, disappearances, molestations, sexual assaults and other forms of harassment. Jammu and Kashmir has a long list of rape victims, none of whom has received justice. The graph of rapes in Kashmir compared to other rights abuses is very low, but it is so because most of these are not reported. The victims do not come forward in most of the cases because of the social stigma. Besides, most of the 'rapes' occur in remote areas which have little access to media or the human rights groups.
There is a complete denial mode of the same in the official circles and according to Jammu and Kashmir police, statistics show only ten cases of rape. A UN publication, however puts the number of rapes by security forces at 882 in 1992 alone. A Human Rights Watch report in 1994, stating that there was high incidence of rapes in Kashmir, documents the use of rape as a means of targeting women whom the security forces accuse of being militant sympathisers. The report also gives a detailed account of how in raping them, the forces attempt to punish and humiliate an entire community.
The Kunanposhpora rape controversy in 1991 is one of the most infamous cases in Kashmir, not only in terms of the numbers of women gang raped, but also in terms of both the stigma attached to the entire village. On the night of February 22-23, 1991, over 30 women and children were gang-raped by soldiers of the 5th Rajputana rifles. The experiences of Konanposhpora's women have been repeated over and over. Women are molested routinely by the para-military forces during searches. The only investigation panel in this case by the Press Council of India, a one man show by journalist B.G. Verghese, gave a clean chit to the accused troopers and accused the women of fabricating the story. When the incident happened, the village men complained to the officials but no action was taken. According to the Asia Watch Report, officials claimed that no formal complaint was lodged. A local magistrate was called for investigation but authorities in Delhi vehemently denied the incident without even verifying with local officials. A police investigation never commenced. Then, three months after the incident, an Army official requested the Press Council of India to probe the allegations only after the forces were pressurised by media criticism. The one man Commission, that spent only a few hours in the village, found the charges ‘baseless’ based on gaps in statements and medical examination of 32 women that was conducted three weeks later. The then Divisional Commissioner Wajahat Habibullah questioned the manner in which allegations had been dismissed even before the investigations had been carried: “While the veracity of the complaint is highly doubtful, it still needs to be determined why such a complaint was made at all…” he pointed out while calling for a thorough inquiry in the incident which never happened.
In May 1990, Mubina Gani, a bride being taken along with her bridegroom and baratis after the marriage was solemnised, was raped in south Kashmir by BSF. Her aunt accompanying the marriage party was raped too. One man was killed and several wounded. A government inquiry held the BSF men guilty but the latter were never prosecuted. However, a BSF Staff court of inquiry that held the men guilty, “suspended seven men.” Normally, a person convicted for rape could get upto ten years in prison if the normal Indian legal procedures are followed.
In November 2004, when a mother-daughter duo were allegedly raped by an army Major in Handwara-BadarPayein, the case ended in simply an internal army enquiry which held the Major “guilty of misconduct”. While these words were misleading, the post mortem reports in the case were never really made public. The government inquiries are either not made public or never followed up with the security forces. The courts of inquiry by the security agencies, even if they hold their own men guilty, never punish them adequately. The maximum punishment given is suspension, or simply the remark of ‘severe displeasure’ gets recorded.
Shopian rapes and murders fit into this tapestry of brutality by security forces and use of sexual violence, while enjoying full impunity through extra-draconian laws or absolute official and political patronage. A year after the Shopian case was hushed up through investigations by police and CBI, the four cops indicted of tampering evidence have been not just let off, they have also been reinstated on the basis of the CBI’s clean chit to them. It was the J&K high court that had intervened in the case and ordered the arrest of the four cops following their indictment by the Jan Commission of Inquiry. The court had observed that either the cops know who has committed the crime or they have committed it themselves. After the case was handed over to the CBI, the cops were bailed out without even a proper investigation. CBI’s lengthy volumes of the report after a fresh post mortem of exhumed bodies, three months after the two victims died, has ruled out rape or murder and insisted that the two women drowned. However, the report fails to give any evidence. Many of those who campaigned for justice have been maligned and chargesheeted by the CBI.
The last two decades in Kashmir and other militarised areas of J&K are marked by not just brutalities by security forces but also the unlimited protection these personnel get. Despite massive allegations, with serious evidence pointing out to the same in many of the cases against the security forces, very few cases were ever investigated. In a negligible number of cases, prosecution takes place. In none of them justice has been delivered. In some cases where government has ordered inquiries mostly under judicial magistrates, or where security forces order their own court of inquiries, the findings and punishments are not made public, leaving victims to believe that such abuse is committed with impunity. The security forces are just not held accountable, and in many instances cases are not even registered against them. Even when cases are registered, the legal sanction required, as per provisions of laws like Armed Forces Special Powers Act, is never accorded. In the case of police, the laws are easily abused to give them that extra protection. In the last 20 years, it is only in a very miniscule number of cases that such sanction was accorded. However, till date no culprits in uniform have been convicted or punished. The culprits get full protection overtly or covertly and all-out efforts are made to hide facts, and even tamper with evidence.
Title: On Gujarat 2002
Abstract:tba Panelist: Navsharan Singh
Title: Sexual Violence against Women in the Punjab
Building on the collective silence in response to the large scale sexual violence against Punjabi women of Sikh, Muslim and Hindu religious communities that accompanied the blood-drenched Partition of 1947, this paper looks at sexual violence in contemporary Punjab. In contemporary Punjab, while Dalit women are often the victim of such crimes, the ‘punishment’ of rape is also common for the ‘crime’ of exercising free will or transgressing the familial code of ‘honour’. The paper argues that silence as the collective response for violence against women during Partition contributed to creating a lasting culture of impunity for sexual violence. The state did not recognise these crimes at Partition, had no framework of addressing it and consequently it failed to provide justice. The civil society also failed to seek accountability from the state. The result is that today impunity is not limited to legal inaction. The exemption from accountability for the perpetrators extends in family and community practices. The community exempts the perpetrators of social accountability for illegal acts; such men are keenly offered brides, and often hailed as heroes for punishing the ‘crime’ of free will and protecting the ‘honour’ of the family and community. The lesson for women’s movement is to lay bare the layers of protection which the family and community enjoy while the state makes itself absent, allowing them to perpetrate violence on their members.
Panelist: Warisha Farasat, Lawyer, Delhi
Title: Challenges in Ensuring Accountability for Mass Crimes
It is evident that impunity remains an urgent issue in South Asia. Impunity is usually defined as the failure to bring perpetrators of human rights violations to justice. However, this is a restrictive interpretation of the term. It conveys not only the lack of legal remedies available to individual victims but also the failure of democratic institutions to respond to egregious crimes. While India is perceived as a rising power, an economic success story, it is also marked by several intractable conflicts and intense political violence within its borders. The conflict in Kashmir and the Northeast has left a generation scarred by violence, and created deep social and political divisions. Similarly, the intensification of counter insurgency operations in the Naxal affected areas, and granting of unbridled powers to the security forces (paramilitary and state police) has resulted in severe human rights violations, including rape and other forms of sexual violence.
The government justifies the action of the security forces on the premise that these violations are isolated incidents. However, on a closer scrutiny of the pattern of human rights violations in these regions it becomes evident that these are not merely isolated incidents but rather systemic in nature. A victim’ s right to an effective remedy obligates India to take necessary investigative, judicial and reparatory steps to redress violations and address the victims right to knowledge, justice and reparations. The updated UN Principles on combating impunity elaborate this right as the Right to truth, justice and reparation. This paper addresses the challenges in ensuring accountability for mass crimes, particularly in cases of sexual violence, which are often the most difficult to document and prosecute. What are the relevant national and international frameworks that would provide guidance? Can India learn from comparative experiences? And, finally, what are some concrete measures that would ensure a sense of justice?
8.2 Title: Law, Resistance and Change
Chair: Mihir Desai
Panelist: Dr. Kamal Nayan Choubey, Assistant Professor, Department of Political Science, Dyal Singh College, Delhi University
Title: Tale of Two ‘Progressive’ Laws: State, People’s Movement and Resistance
Abstract: In this paper it would be attempted to present a comparative study of the experiences involved in the making and implementation of two laws, which came through long struggles of the marginalized sections. These two laws are Panchayat Extension to Scheduled Areas Act (PESA) 1996 and Forest Rights Act (FRA) 2006. The PESA was enacted to implement the Panchayati Raj system in Schedule V areas. Large-scale mass movements in Schedule V areas organized by Bharat Jan Andolan and other people’s organizations preceded enactment of this law. The FRA on the other hand proposes to give the adivasis rights on forestland and its resources. It gives them both private property rights and common property rights. Campaign for Survival and Dignity – a collective front of adivasi organizations of different states – led the movement for this law. People’s movements and debates within them played an important role in making both these laws more ‘progressive.’
However, several questions arise about these laws. For example, how far can we accept that these laws are the creations of the movements, i.e., to what extent did these laws took the form or shape as demanded by the movements? Is it just that the state has found a new way to control the tribal society and communities through these laws? Further, the way the state has defined the criteria of determining deserving communities or individuals for the benefits of these laws is exclusionary, and leaves out various deserving communities and individuals from its reach. So the question arises – has the state just created a new weapon for determining illegality, or, through these laws has the state invented a ‘new weapon for formal violence?’
I attempt to analyze these questions, and beyond that, want also to focus on the strategies of the peoples’ movements and mass organizations, who fought for these laws/the implementation of these laws, following their enactment. Do activists of peoples movement feel happy with the implementation of these ‘progressive laws’? Do they think that these laws have succeeded in bringing substantive positive changes to the condition/situation of adivasis? After the experience of these laws, do they still have the faith in struggling for ‘progressive laws’ like PESA and FRA, or do they now give priority to other means of resistance and struggle?
Through my paper I want to analyze and present a comparative study of the debates during the making of PESA and FRA, and show how there were gaps between the laws made by state and the ‘ideal laws’ demanded by the peoples’ movements. Apart from these aspects, I also want to focus on the critique advanced by the peoples’ movements of these ‘progressive laws’ and ‘the nature of Indian State’ as seen through the experience of the implementation of these laws. Further, through this paper, I would also attempt to comprehend the changes in the strategy of struggle and resistance of these movements after the enactment of both these laws, particularly focusing on the organizations that were active in the movement for these laws.
Panelist: Jawahar Raja, Lawyer, Delhi
Title: On the Unlawful Activities Prevention Act (UAPA)
Panelist: Suneetha Achyuta, Fellow and Coordinator, Anveshi Research Centre for Women's Studies
Title: Mobilizing Support for ‘Terror-Suspects’: The Case of Civil Liberties Monitoring Committee, Hyderabad
Abstract: Mobilizing support to make the law work for activists accused of anti-state activities has been one of the major foci of civil/human rights movements in Andhra Pradesh. Along with petitioning the court for producing illegally detained activists and ‘sympathizers’ or seeking investigations of such detentions and killings of people in staged encounters, the movements also engaged in a conversation/dialogue on the politics of the movements that these activists belonged to. The scope for such a conversation has been limited when the detained were accused of ordinary crimes, petty and serious. The agitation against death penalty in the case of two Dalit men convicted of burning down 27 bus passengers was one instance when the limits of such attempt became apparent. Located in this context, this paper analyzes the efforts of Civil Liberties Monitoring Committee (CLMC) to mobilize support for the illegally detained Muslim youth accused of ‘terrorist’ offences such as bomb blasts in Hyderabad. Nearly 300-400 Muslim young men were detained for days after a series of bomb blasts in 2007. Among these, approximately forty five were named in different conspiracy cases and spent two to eighteen months in prison. Documenting the efforts of CLMC the paper addresses itself to the following questions: How did it initiate a conversation around the due process of law for people who got designated as non-beings? What resources were drawn upon to mobilize support for them? Did the status of a minority community help in this process? And asks - what do civil liberties mean in such a context?
8.3 Title: Affective Life of Law and Justice
Chair: Jonathan Goldberg-Hiller
Panelist: Eleanor Newbigin, Lecturer in modern South Asian History, SOAS, London
Title: For Love or Money? Income Tax and the Making of ‘Modern’ Hindu Family Law
Abstract: One way to examine the relationship between law and affect is to look at historic moments when the boundary line between the two shifts. This paper looks at how changes in the political-economy of the late colonial state necessitated a re-codification of domestic space and family relations, in which the idea of love and affect played a central role.
One of the key ways in which the colonial administration funded political devolution and state expansion after World War I was through the introduction of progressive income taxation, in which the amount of tax paid increases according to the amount of income earned. This provided the Government of India with an incentive to uphold the Hindu undivided family (HUF) as the principle property-holding structure in Hindu society, taxing it as a single, high earning unit, rather than as a collection of individuals. This policy provoked considerable opposition amongst wealthy Hindus who argued that it gave preference to a view of the family based on religious scripture and did not take account of everyday relations of love and affect. Over the course of the 1920s and 1930s, Hindu legislators, judges and lawyers put forward alternative visions of the family, based around the conjugal unit, rather than the multi-generational collective of the HUF, which they argued was a more accurate portrayal of Hindu domestic life.
This paper explores these debates, looking particularly at the way in which Hindu representatives conflated ideas of love and modernity. It shows how this conflict gave rise to a new legal framework of the Hindu family that reflected the interests of Hindu representatives while also satisfying the needs of an expanding and increasingly interventionist Indian state – seeming to create a new Indian polity based on a law of love rather than colonial exploitation.
Title: Spinning Affect: Neoliberalism and the Science of Cricket
Abstract: Cricket is the only popular sport that has laws, not rules. Umpires do not enforce rules on the field of play, instead they adjudicate disputes between players according to the laws of cricket. India has become the financial centre of international cricket following liberalisation in the early 1990's. The ongoing rapid commercialisation of the game has compressed how cricket is played and heightened the pressures on players to win matches. One consequence has been substantial changes in the laws of the game and an elaboration of framing documents on the 'spirit of the law' and the 'principles of natural justice' taken to govern the game. I argue that an examination of how those changes came about forms an excellent case study in how law and society are articulated with one another.
Neoliberalism has been conceptualised as a process that drives subjects toward a responsibility to develop one's own 'human capital'. I argue that the turn to affect in critical theory and anthropology is best read as an attempt to trace that change and the effects it has had on contemporary governmentality. I suggest that affect is the mechanism that articulates law with society and examine in this paper how cricket players train bodily affect through, in part, the use of the science of biomechanics. This science – the study of life and the forces that act upon it – has played a crucial role in dealing with an important and controversial question in contemporary cricket: how does an umpire know whether a bowler has thrown the ball, thereby gaining an 'unfair' advantage? An examination of the debates on this question and the changes in the laws of cricket driven through laboratory findings on the biomechanics of bowling illuminates, I argue, the entanglement of neoliberalism, law and affect on the playing field.
Panelist: Alecia Simmonds, Visiting Scholar, Birbeck College, PhD candidate Sydney University
Title: Pork, Perfidy and the Death of Public Passions
Abstract: At the turn of the eighteenth century, friendship was called to stand trial. Its days spent negotiating encounters with natives, trumpeting the virtues of empire, legally justifying imperial violence, resolving the moral ambiguities of commerce and peopling the corridors of British government had come to an ignominious end. The very claims of moral corruption which friendship had been ushered in to deflect were now levied against it. Friendship was caught in the wrong place at the wrong time. In the realm of British domestic politics it faced charges of harbouring corruption, nepotism, bribery, and unjust enrichment. It was the swelling ranks of the middle classes who brought these claims. When seen swanning in the realm of the public, friendship became associated with patronage, sinecures and private benefit at public expense. Love became associated with scandal and petticoat influence.
Blinking in the dawn of the nineteenth century, friendship was found guilty of perfidy, duplicity, treason, corruption, unjust enrichment and conceptual promiscuity. It was to be banished to the private realm of family, neighbours and kin. When appearing in public, it was to be accompanied by an army of adjectives: the aristocracy exalted in their ‘private friendships’ and the middle classes boasted of their ‘disinterested ’, ‘generous’ or ‘genuine’ friendships. Friendship rarely appeared alone. In the global community, it no longer spoke of individual duties owed by strangers to natives, but of diplomatic agreements between civilized states. And when patriotic discourse propelled friendship out of the close-knit community, it halted most decidedly and definitely at the limits of the nation state.
This paper will explore the decline in the language of friendship in legal, governmental and popular commercial discourses through the lens of a somewhat neglected pocket of British-Pacific history: the salt-pork trade between Australia and Tahiti. I seek to ground the published and unpublished diaries, letters, log-books, poetry and voyaging narratives of traders and their families in the wider context of British domestic, imperial and cultural politics between the period 1780-1830. The suspicion which friendship aroused amongst these traders can only make sense in the context of the raucous denunciations it received in Britain and many of its colonies or trading outposts at precisely the same moment. The reasons, I argue, can broadly be ascribed to the rise of commercial instrumentalist reason, the increasing self-awareness of the ‘middling sort’, the critique of ‘Old Corruption’ and imperial corruption, the shift from natural to positive law and a hardening of racial divisions structured around ideas of civilization – now defined more by commerce than sensibility.
The effects were nothing less than a radical rearrangement of bodies, spaces, subjectivities and the pre-existing sensory order. There was a reduction in the threshold of affective tolerance in domestic public space as much as on the edges of empire. The cross-cultural curiosity, and at times eccentricities harboured under the rubric of friendship proved uncomfortable and cumbersome within an instrumentalist grammar suited to commercial transactions. Justice replaced beneficence, contract replaced friendship, letters replaced bodies, words replaced mime, and intimacy – configured as both amity and amour – was channelled into the feminine private sphere.
Panelist: Sruti Chaganti, Associate Fellow, Centre for the Study of Culture and Society
Title: Law, Death and the Sovereignty of Self
Abstract: In the last chapter of History of Sexuality Volume One, Michel Foucault locates suicide as a puzzle and a challenge for modern power: “This determination to die, strange and yet so persistent and constant in its manifestations, and consequently so difficult to explain as being due to particular circumstances or individual accidents, was one of the first astonishments of a society in which political power had assigned itself the task of administering life.” The suicide as a political event has particularly resisted analysis or explication; even as a phenomenon, it resists classification – not (quite) violent, not (quite) non-violent. The Tibetan activist who invites death as an integral part of a non-violent struggle, the Telengana activist who takes her own life as a mode of (instead of) persisting at the barricades, the farmer who kills herself in the face of the grief and immiserisation that dominates her experience of the world, throb in the collective psyche as an open, pulsing wound, and yet their utter passivity is confounding. In the empirical response, what is offered up for examination is the chain of events – political, social and economic – that lead up to the moment when a person actually succeeds in taking her life, almost as if imminent causality, in laying out the anatomy of a political moment, enables its resolution through legislative action or an exemplary exercise of political will. The moral response is equally puzzling – the shock engendered by the suicide is accompanied by its twin, horror, verging on distaste at the seemingly wanton act of a person who refuses to be riveted to her body in the face of political calamity, as if exiting this world holds less horror, is less honorable than political resistance. This paper is interested in exploring a third vein – that of a politics located not on the terrain of social action but on that of the self. In the face of the law’s desire to extend its influence over all life, “death is power's limit, the moment that escapes it; death becomes the most secret aspect of existence, the most "private””. But what does the pursuit of freedom in death really mean, how does the effacement of life affirm life itself?
8.4 Title: Water Law and Water Policy: Relationship in the Context of Water Law Reforms
Panel Coordinator: Philippe Cullet