Panel Coordinator:Rebecca Grapevine
Chair: Bhavani Raman Panel Abstract: On the 14th of August, 1947, Nehru gave his very first speech to newly independent India “A moment comes”, he famously said, “which comes but rarely in history, when we step out from the old to the new…” Yet he said these words just after being administered the oath of office by the last Viceroy inside the Viceregal palace. The shadows of the colonial past were not merely symbolic. The laws of independent India were largely colonial legacies; even the Constitution was modelled on the Government of India Act, 1935. The structures of the bureaucracy, the judiciary and the army remain close to their colonial forms.
This predicament is not unique to India. The question of continuity has emerged in moments of creation of a new political regime. Most theorization of this question is based on the experience of regime change in modern Europe, where there have been two dominant understandings of continuity. One has claimed continuity as tradition, as an expression of the ancient and immutable laws and practices of the land. The other claims that any argument for continuity is a counter-revolutionary or conservative project. Both these positions situate break and continuity as absolute antagonists and categorical distinctions.
In this context, how are we to understand Nehru’s claim of “stepping out from the old to the new”? Are we to understand these movements as mere liberation struggles, which replaced an old ruling class of unrepresentative foreigners with new representative rulers? Or is it possible to theorize these transformations in a way that would be closer to the spirit of Nehru’s speech – as “new beginnings” or “founding of freedom”? If so, how can we understand a “new” beginning so deeply situated within juridical and political practices that were continuous from the old regime?
Rohit De and Rebecca Grapevine examine these issues from the perspective of legal history, concentrating on the use of law in the 1950s, while Arudra Burra and Sandipto Dasgupta attempt to understand them from the perspective of political theory.
Panelist: Rohit De, Princeton University
Title: “A Constitution for the Butcher, the Baker and the Candlestick Maker”: The Everyday Life of Constitutional Law in the Indian Republic (1950-1962)
Abstract: This paper investigates the impact the adoption of a written republican constitution had on the lives of average Indians. How did Indians come to understand the constitution that had been adopted in their name? More significantly, how did they come to use it?
The existing scholarship on the Nehruvian state suggests that with independence many of the older structure and practices of government were retained, the constitution itself borrowing heavily from the colonial Government of India Act, 1935. Republican innovations however included the provision of a Bill of Rights, and more critically the inclusions of Arts 32, 226 and 227 allowing citizens to take the state to court. This created a situation where in there was a massive expansion of the state both in terms of its ambitions and capacities to order the everyday lives of its citizens, while simultaneously, the citizen was given the right to challenge any law, administrative fiat or bureaucratic decision in the court of law. Together this led to a significant increase in litigation against the state.
This paper focuses on two groups of writ petitions; one filed by three hundred Muslim butchers challenging the ban on cow slaughter, and the second by vegetable sellers challenging municipal regulations. Moving away from the “high politics” or legal doctrinaire approaches that have dominated the study of constitutional history, this paper attempts to understand the rationale and the processes that led ordinary citizens of modest means to take the state to court. By emphasizing how litigation begins, rather than how judges resolve it, the paper seeks to uncover how citizens saw the constitution, the courts and the relationship to the state and challenges the neat categorization of litigation simply as “liberal constitutional politics” or a part of “civil society”. Finally, the paper highlights the role played by legal professional networks in fostering this body of constitutional litigation.
Panelist: Rebecca Grapevine-University of Michigan
Title: The Persistence of Coverture in Post-Colonial India
Abstract: The Indian Constituent Assembly adopted a new, gender-neutral law of citizenship along with many progressive fundamental rights in 1950. Despite these important changes, many aspects of women’s legal identities continued to be governed by the long-standing common law doctrine of coverture. Coverture held that a woman’s legal identity merged with her husband’s upon marriage; it prevented women from owning property, from entering into contracts, and from obtaining redress against marital rape, among many other legal disabilities. In the United Kingdom and the United States, piecemeal statutory reforms, from the late nineteenth-century onwards, mitigated some of coverture’s effects on women’s independent legal status. Yet, coverture, many argue, has had a deep-seated effect on the law’s treatment of women and family relationships that is difficult to fully erase, whether in the United States, the United Kingdom or other common law countries like India.
This paper examines the role of the common law doctrine of coverture in two bodies of Indian law in the period between 1950 and 1960: citizenship law and personal law. Both these bodies of law underwent substantial changes during this period in light of the new political structure and progressive ethics of the post-colonial state. How did legislators and judges deal with this long-standing, patriarchal doctrine with its roots in England in the political order of independent India? What implications did such ‘steel frames’ of the common law have for the nature of the state, especially in regard to women and gender? The paper argues that the ‘hidden’ doctrine of coverture, transmitted through legal definitions, treatises, legal education and judges’ decisions, continued to bind women to patriarchal family structures even after the departure of the British. It also highlights the importance of analysing not just legislative changes but also court judgements and legal culture in understanding post-colonial legal changes.
Panelist: Sandipto Dasgupta, Columbia University
Title: Understanding Colonial Continuity Within the Paradigm of State-Society Relationship: The Gandhi-Nehru Debate on the Constitution
Abstract: This paper seeks to address the paradox of colonial continuity in independent India from the point of state-society relations. It can be argued that one of the most significant contributions of colonialism was the notion of a society that can be ordered by the state. In other words, unlike in the imaginary of the classical bourgeoisie or Marxist revolutionaries, the Indian freedom fighters were faced with a social that could not claim autonomy from the sphere of the state. The question then becomes how can one formulate a revolutionary project so steeped within a discourse that is a legacy of the regime one is fighting against. The paper would argue that there were two main formulations of the revolutionary project in India. One formulation was of Gandhi’s, which tried to reclaim an “authentic” social from India’s ancient past, and found a new community on that basis (the idea of village republics), which would be autonomous from the political. The other formulation, most prominently articulated by Nehru (as well as, in a slightly different way by Ambedkar) realized that the authentic, autonomous social was lost forever, and an attempt to re-establish it would be tantamount to denying history. The constitutional project then became one of renegotiating the state society relationship inherited from colonialism, and reformulating the role of the state as a social actor. Thus, while there was a great degree of continuity, in law, institutions, as well as the structure of the state itself, there was a fundamental break as to the relationship between state and society – from universal suffrage to provisions in the Constitution that obliged the state to intervene in certain fundamental ways to answer the social question.
3.6 Title: Resolving Disputes and Dispensing Justice Beyond the Courts
Panel Coordinator: James Jaffe
Chair: Shalini Randeria
Panelists: Marc Galanter, University of Wisconsin-Madison Niketa Kulkarni,Bankable Frontier Associates, Somerville, Massachusetts
Title: India's Mid-Twentieth Century Litigation Implosion
Abstract: We trace the rate and kind of litigation in the ordinary trial level courts of British India from the late 19th century to Independence and compare these figures with available data on litigation in the post-Independence Indian courts. We consider possible explanations of the precipitous fall in the amount of non-land litigation during the Great Depression and the continuing low per capita use of the lower courts in contemporary India.
Panelist: Menaka Guruswamy & Aditya Singh
Title: “Injustice for Most”: The Impact of Poverty, Illiteracy and Naxal Violence on Access to Indian Courts
Abstract: The Gram Nyayalayas Act, 2008 (or Village Courts Act) perpetuates the phenomenon of two Indias. That of the relatively better resourced urban citizen who can afford and has access to the courts, and that of the poorer, more disconnected rural citizen, whose claims are to decided in village courts- around 5000 of which have been established. The Government has introduced village courts to reduce pendency within the system.
This paper has two primary aims. First, to show that the Indian legal system is in fact least used by the people the statute seeks to keep out of the legal process. This is done, by the presentation and analysis of data that deals with initiation of cases - civil and criminal, in district and High Courts and is segregated state-wise. This in turn is co-related to data that pertains to income levels, literacy rates, and states that have the highest rates of incidents of naxal-related violence (law and order problem or the inability of the state to maintain public tranquillity or order). Further, we show that the it is the Government which is the biggest litigant by far.
Second, this paper highlights the inadequacies of the Gram Nyayalayas Act, 2008. It is argued that it will lead to the unjust exclusion of the impoverished from just legal processes under the garb of ‘speedy’ and ‘efficient’ administration of justice. Building on this analysis, we suggest that not only does the Government with this legislation, takes away rights that accrue to all citizens under any legal system: the right to appeal, right against self-incrimination. But it also creates two formal universes of due process and justice - one for the poor, and the other for those who can afford the existing legal hierarchies of courts. This we argue violates the promises of our Constitution, and impedes access to justice for the disadvantaged.
Panelist: James Jaffe, Professor, Department of History, University of Wisconsin-Whitewater
Title: Panchayats and Panchayat Justice under British Administration in Western India
Abstract: This paper presents the results of a statistical analysis of over 200,000 civil cases lodged in the civil courts of the Bengal Presidency between 1819-1827. The paper reviews the complex judicial structure of the Presidency, analyses the types of cases brought before the courts, discusses the trends in litigation over time, and makes preliminary observations as to litigation rates during this period. Greater attention, however, is directed to the role and functioning of panchayats under the East India Company. Data for this analysis survives for approximately 3500 cases. Once again, the data is analysed to reveal the types of cases most frequently referred to panchayats, the character of panchayat decisions and the decision-making process, and the types of appeals from these tribunals. In all, this data is historically unique and presents special opportunities to discuss the nature of panchayat justice under British administration during the early nineteenth century.
Panelist: Surabhi Ranganathan, Faculty of Law, University of Cambridge
Title: Do too many Fora Spoil the Debate? Two accounts of the India – U.S. Nuclear Deal
Abstract: My paper proceeds from premise that the international sphere provides an ideal testing-ground to understand the prospects, dark and bright, of legal pluralism and “multiple scenes of the law”, for it is particularly in this sphere that the “formal judicial process appears as one of the many competing actors in the theatres of justice.” Its focus is the many strategic shifts of forum and elisions of debate that characterized the process of conclusion of the India – US nuclear deal from July 2005 – October 2008.
It offers two narratives of this process. The first is a bright account that dwells on the benefits of deformalization, soft law, multiple fora for law-making and application, and the trend towards legitimacy (not legality) as the authentic standard. These developments rescue international law from simplistic accounts of obligation and breach, and hinge its relevance on facilitating principled accommodations between conflicting interests. The nuclear deal is a story of accommodation, between the goals of non-proliferation and disarmament that animate the Non-Proliferation Treaty and interests in trade, energy, and recognition of India’s emergent-power status that underpin the nuclear deal.
The second narrative flips to the dark side of the same developments, showing that they result in truncated debates at strategically chosen fora, and deny the complex interests involved in an alteration of the status quo. I build upon Martii Koskeniemmi’s insight that while international law is substantively indeterminate, its use driven by politics; the choice to invoke the language of ‘law’ is a progressive choice. That law and politics are intertwined enhances their legitimacy. Koskenniemi assumes however that all legal fora afford opportunity for equal discussion of all views or, at worst, are only substantively biased towards particular politics. I argue that the very format of argument followed by a forum may highlight certain issues and obfuscate others, and crowd out the language of law/politics in favour of that of technology or economics.
Finally, I explore whether these two accounts are inextricably connected. Are the conditions that allow truncation of debate also those that enable accommodation of conflicting interests? What does that imply for values of accountability, legitimacy and, above all, democracy?
4.1 Title: Neelan Tiruchelvam and the Imagination of Southasian constitutionalism Panel Coordinators: Arvind Narrain & Siddharth Narrain
Chair: tba Panel Abstract:
Ten years have passed since the tragic assassination of Dr. Neelan Tiruchelvam by a LTTE suicide bomber in July of 1999. Dr. Tiruchelvam exemplified the best traditions of activist scholarship combining a political career as a member of parliament along with deep engagements with fields such as ethnic studies and constitutional law. Thus Dr. Tiruchelvam's engagement with Constitutionalism was forged in the crucible of the struggle for a Sri Lanka which was committed to an ethic which respected plural identities and plural ways of living.
This particular struggle of finding the right constitutional architecture which reflected the nobler aspirations of a society and working to get warring ethnic groups to accept such a framework was Dr Thiruchelvam's life's mission and tragically the very cause of his assassination.
This particular struggle for a just Constitutional order remains of deep salience in South Asian society. As a way of remembering and taking forward Dr Tiruchlevam's vision, this panel is dedicated to his luminous memory.
In this panel we engage closely with the promise, tragedy and lived history of Constitutionalisms in South Asia. Nepal in some ways exemplifies the perilous promise of a Constitutional future, Sri Lanka sadly shows the continuing tragedy of a state which refuses to accept a pluriverse sanctioned by the Constitution and India exemplifies the lived history of a certain form of Constitutionalism.
Exploring these three contexts of constitutionalism in South Asia will be the best tribute we can pay to an eminent South Asian thinker who ceaselessly strove to build a better world through his exemplary life of thought in action.
Panelist: Ramaswamy Sudarshan
Title: Constitutions as the Conscience of Nation-States
Panelist: Kanak Mani Dixit
Title: tba Panelist: Sudhir Krishnaswamy
4.2 Title: Who's AADHAAR is it Anyway? Reflections on the UID Debate Panel Coordinators: Reetika Khera, Right to Food Campaign Subasri Krishnan, Indian Institute for Human Settlements, Delhi
Chair: Ravi Sundaram, Sarai/CSDS
The formation of the Unique Identification Authority of India (UIDAI) ( Aadhaar in Hindi) has provided an opportunity to debate a number of issues related to the nature of the Indian State. Whereas, the newly elected conservative government in the United Kingdom has set up its http://yourfreedom.hmg.gov.uk/ to solicit views of its people on a diverse range of topics, in the world's largest democracy seems to be shying away from some important fundamental debates about citizenship, privacy and political rights.
The debate around UIDAI throws up broader questions on the relationship of the State to technology, citizenship and political rights. On the one hand are people who believe that the UIDAI will help “clean up the system”, and help foster efficient governance – where the delivery of services reaches every citizen, especially the poor. This has been one of the fundamental rationales for the creation of the UID. On the other hand those opposed to the UIDAI fear that the creation of a “technologized State will not only create greater inequality to the access of State’s services, but has legal and ethical dimensions to it that has not be thought through – questions like what does it mean to imagine a “database society”; who is responsible for this data, and how will it be used; the privacy of those in the data given that India doesn’t really have privacy laws and such like things. Also, the one of the rationales for implementing the UID is the welfare benefits its supposed to set-off. But in so far as the welfare benefits are concerned, the documents put out by the UIDAI betrays a lack of understanding of the main sources of inefficiency in the system.
Panelist: Nishant Shah, Centre for Internet and Society, Bangalore
Title: Citizens in the Time of Database Governance: Identity, Technology and the Indian State
Abstract: This paper will explore the UIDAI as symptomatic of a changing relationship between the State and its Citizens mediated by ICT technologies and stakeholders, and will look at the ways in which new citizenships are being forged in emerging information societies like India.
Abstract: India’s unique identification number project has been sold on the promise that it will make every citizen, the poor in particular, visible to the State. But the UID project raises crucial issues relating to profiling, tracking and surveillance, and it may well facilitate a dramatic change in the relationship between the State and the people. The Unique Identification Authority of India has not acknowledged these concerns so far. And now, nowhere in the proposed draft bill that it has prepared have these issues been addressed nor have clauses been drafted to prevent abuse of information that will be collected by the agency. With so many questions on the project – regarding biometrics, security and privacy – yet to be answered, it is far from time for parliamentary approval. As has been observed, the Constitution is expected to provide the citizen with dignity and privacy; but these are missing in the UID project.
Panelist: R. Ramakumar, Associate Professor, School of Social Sciences, Tata Institute of Social Sciences
Title: The Unique ID Project in India: A Skeptical Note
Abstract: In this note, I discuss certain social and ethical aspects of new national project to supply unique ID (UID) numbers to Indian residents. The UID project is presented as a “technology-based solution” that would change the face of governance in India. I argue in this note that the UID project would actually lead to the violation of a large number of freedoms of Indian people. No amount of assertion vis-à-vis improved service delivery can justify the violation of citizen’s freedoms and liberties. Next, I argue that there is a misplaced emphasis on the benefits of technology in this project, when the robustness of that technology to handle large populations remains largely unproven. Further, I argue that no detailed cost-benefit analysis of the project has been carried out yet. Finally, I try to show, with an illustration, that the roots of inefficiency in public welfare schemes in India do not lie in the absence of identity proofs.
Title: The Unique Identity Number Project: Should Non-Citizen Residents be Concerned?
Abstract: This essay attempts to comprehend the potential implications of the Unique Identification project (UID) or “Aadhaar” on non-citizen residents in India, specifically, refugees, asylum seekers, stateless persons and other “illegal” migrants. The Aadhaar project poses a number of questions, involving the constitutional right to privacy and issues of surveillance, on identity and others. It gives an impression that only welfarist objectives animate the project but given the scale, costs and what it seeks to achieve in reality, it would be naïve to assume that such a system would leave non-citizens untouched especially in the context of the high degree of anxiety over issues of both internal and external national insecurity.
The unique identification number debate, it is argued needs to consider the possible impact it would have on non-citizen residents. They make up a small yet significant cross section of the resident population in India and find themselves in a society and polity that displays unique features in terms of how it regulates the presence and exit of foreigners in its territory. Further, the incoherence of the legal and administrative mechanism regulating asylum seekers, refugees and stateless persons in India has the potential to translate the lack of or precarious legal identities in social life of these individuals in ways that may negatively impact them. At the same time, it would be worth thinking aloud whether, on the contrary, the UID project would benefit refugees in the Indian context given that their limited rights are not translated in reality in the existing social, economic and political institutional set up. Questions of identity, surveillance and the citizenship of refugees/stateless/asylum seekers are all the more relevant given the anxieties displayed by the Indian state in relation to them. It is in this specific context of resident non-citizens that this paper intends to comprehend the complexities of this project.