Panelist: Bhargavi Raman and Badrinarayanan Seetharaman, Students, National Law School of India University, Bangalore
Title: Subsumption of Critique? Understanding Interpretative Processes of Judicial Decision Making
Abstract: In understanding the interpretive process involved in judicial decision making, in this paper we examine the possibility of arriving at a framework that can form the basis on which a valid interpretation of law can be told apart from an arbitrary one. In doing so, we analyse the role of law’s underpinnings in precedent interpretations of social mores, the Constitution and guiding concepts like “public good” that invariably influence interpretations in, and the discourse of law.
Taking into account Weisberg’s notion that literature can form a source of knowledge concerning ethical questions which are important in law, we argue that, while this is certainly true, interpretation in law is bound by certain constraints that literature is not. Following upon Robin West’s thesis that any theory, including a legal theory, is a narrative, we contend that the legal discourse/narrative is forced to take on one kind of interpretation, thus bringing in teleology to legal hermeneutics and jurisprudence.
We question the validity of adopting the standard (narrative) adopted by the courts while undertaking such interpretation by focussing upon contempt of court proceedings on one hand, and censorship laws on the other. Keeping in view the diversity in society and hence the scope for multitudinous interpretations of the law, we uncover the current Supreme Court jurisprudence on the freedom of expression and critique in India. We do this by analysing a set of judicial decisions with the purpose of discovering a guiding philosophy of interpretation adopted by the Courts, that indicates, or claims to be influenced by a said narrative. We conclude by questioning if such narrative was inevitable, whether this perpetrates or detracts from the dominant discourse of law itself, and if this is desirable, given the various interest groups and stakeholders in the country.
Panelist: Nicholas Robinson, Visiting Fellow, Centre for Policy Research
Title: Summing up the Supreme Court: Statistics and the Face of the Court
Abstract: The Indian Supreme Court is ascribed many faces. Some argue it is, or at least was, a populist institution fighting on the frontline for the rights of the poor and disenfranchised. Others claim it is a middle class court promoting the values and interests of the class from which most of its justices belong. Some assert it has been captured by lawyers, and their vested financial interests to keep litigation complex and lengthy, creating a Court that is ideologically adrift in a backlog of largely mundane cases. Proponents of these views, and others, can find anecdotes to support their claims in the numerous cases heard and decided by the Court each year and the narratives surrounding them.
Yet, what story does the Court’s docket actually tell? This paper examines statistics about the Supreme Court’s case load. It makes the claim that given the thousands of cases the Court decides each year it is not possible to paint a full description of the Court without rigorous statistical analysis of its docket and decisions. However, currently the statistics the Court records (which the paper surveys), although telling, are also deficient, and their routine collection and analysis need to be expanded and improved. Further, there are clear limits to the role statistical analysis can have in describing the Court or proposing courses of action for it. These need to be better delineated. Indeed, an obsession with numbers, such as some judges’ fixation on clearing as many cases as possible in the shortest period of time, can have unhealthy consequences for the judiciary.
Title: Judge-Speak: An Analysis of the Judicial Discourse on Citizens, Rights and Demands of the New Economy
Abstract: The period of the 1990s in India represents an important watershed in the history of the sub-continent. The ushering in of economic liberalization and the attendant tensions that have arisen with the new model of development threatening the survival and collective rights of tribals, workers, women, children and other marginalized sections of society, has been well-documented.
In this scenario, the judiciary is being increasingly called upon to address issues of equity and of infringement of collective rights by both the legislature and the executive arms of the state. For instance, the current struggle of tribal communities in Orissa against the multinational POSCO suggests that the battle to protect the rights of civil society against both the state and corporate forces will continue.
The onslaught of the neo-liberal model of development with the active encouragement of the State has resulted in a situation in which both the individual and the collective conscience of the judiciary is being continually tested. It is difficult at this juncture to actually discern the voices of sanity and reason that are speaking from within the judiciary, upholding the rights of those whose voices are drowned in the din. The judiciary for its part, has not remained monolithic in its response. It is possible to discern patterns of genuine conflict and struggle in that response - whether to embrace the obvious and tangible fruits of the new economic model for the common “good” or to question areas of legislative and executive overreach by the state which clearly threaten the livelihood and development rights of citizens, particularly the marginalized. In this, the patterns of the struggle and the reasoning are instructive; instances of the rare assertion of the judicial conscience do hold out hope to all those who speak to protect the rights of those threatened by these new forms of development.
Through this paper, we hope to explore how individual judges in the judiciary have understood and interpreted rights of citizens vis-a-vis the needs of the new model of development. We will use the judgments of Justice Ramaswamy who served as judge in the Supreme Court from 1989-1997 as the backdrop to examine the manner in which his identity and other elements of his life and background have influenced his thinking and reasoning as judge to speak for the disenfranchised We will also study the language and the discourse used by the judge in his interpretation to challenge the dominant economic model of globalization. Does this contrast with other judgments by other judges on the discourse around rights, citizens and development during the same period? These and some other questions will constitute our area of enquiry.
Panelist: Rakesh Shukla, Centre for Psychoanalytic Studies, University of Delhi
Title: Judicial Decision Making: Role of Affect
Abstract: Implicit in the judicial role is functioning on the basis of rationality and logic. This impossible overwhelming requirement of the judicial function leads to individuals occupying such positions to believe that the act of sitting on the judicial chair magically frees them from all personal biases, prejudices and stereotypes. The present exploration looks at the impact of judges' biases, prejudices and stereotypes - with roots in the unconscious or pre-conscious level of the psyche - on the lives of individuals as well as on vital social issues. It attempts to unravel the emotions engendered but denied and suppressed in the judge by the images evoked in the psyche of ‘criminal’, ‘drug addict’, ‘loose woman’, ‘terrorist’, ‘Muslim, ‘naxalite’ as well as the images of ‘respectable’, ‘judge’, ‘good woman’, ‘victim’, ‘celebrity’, ‘manager’. In a similar vein to examine the feelings or ‘affect’ evoked by images and notions of say ‘motherland’, ‘patriotism’, ‘secession’ and their impact while adjudicating constitutionality of anti-terrorism legislation like Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act (POTA) or extra-ordinary laws like the Armed Forces (Special Powers) Act. Looking through the prism of processes like splitting, projection, idealization and projective identification it is an attempt to evolving mechanisms to take on board unconscious biases, prejudices and stereotypes, bring them into the conscious and make them accessible to processing in order to work towards reducing their impact on judicial decision making.
4.4 Title: Law and Social Exclusion
Chair: Chandan Gowda
Panelist: Hezzy Smith, Extern, Harvard Law School Project on Disability
Title: Rights-Based Rhetoric and Legislative Limitations: A Critical Look at the Domestic Disability Law Reform Process in Bangladesh
Abstract: International scholars have noted the impact of the expressive value of the UN Convention on the Rights of Persons with Disabilities. Indeed, the Convention has helped to transform the discourse of national disability movements by bringing disability issues into the mainstream human rights discourse. Disability advocates are able to make claims for accessibility, reasonable accommodation, etc., appealing to the rights-based language in the Convention. At the same time, the Convention has catalyzed domestic legal reforms in many states. One common trait among new pieces of domestic legislation that have followed in the wake of the Convention is rights-based language. New pieces of legislation declare that persons with disabilities have expansive rights to services and facilities previously available (if at all) for motivations not having to do with human rights.
However, may disabilities advocates’ emphasis on rights-based language potentially limit the impact of these pieces of legislation to the realm of expressive value? Using Bangladesh’s ongoing domestic disability legislation development process as an example, the author will argue that an over-emphasis on enshrining the paradigm shift from welfare- to rights-based language in legislative measures may limit the efficacy of such measures. Rather than the development of effective legislative measures to realize the rights declared in the Convention, the Bangladesh process has merely reiterated these rights. Because of a preoccupation with the legislative embodiment of this paradigm shift visible in the Bangladesh process, the impact of eventual new domestic disability legislation may ultimately be limited to the realm of expression.
Panelist: Parthasarathi Muthukkaruppan, The English and Foreign Languages University, Hyderabad; Doctoral Fellow at CSDS, Delhi.
Abstract: The social science scholarship has disclosed the synonymity of the Law and colonial modernity in the recent past. There has been attempts to theorise the violence of Law (Guha 1987 and Menon 2004) and violence of colonial modernity by historians, political and cultural theorists ( Chakraborty, 2006 and Nandy, 1983). Also attempts have been made to look at the modernity of caste and consequent manifestations of caste by the historical anthropologists (Dirks 1992, Bernard S.Cohn 1987). Though the above mentioned literature comes from various disciplines with a varied concerns what is implicit in the discussion on caste, Law and Colonial Modernity is a critique. This particular critique is the critique of modern institutions that are the result of the colonial rule in India. Critique also magnifies the supposed civilizational past (Nandy, 1983) precolonial/prelegal Community relations ( Guha) uninstitutionalised hierarchical structures of inequality (Chakraboty, 2006, Cohn 1987 and Dirks, 1992) and so on. In a way the critique of Law and Critique of Colonial Modernity are overlapping.
While writing about the relation between Dalits and Modernity, eminent political theorist Gopal Guru has argued the ambivalent relation that was built in the Dalit identity in relation to Modernity. Political theorists have also argued the impossibility of placing the Dalit epistemology in the binaries such as tradition and modernity to communalism and secularism etc. (Nigam, 2000). This ambivalent position on Modernity also translates itself in relation to Law in India. Unlike both Nivedita Menon(2004) who argues for emancipation is not possible within the law and other few feminist scholars who see the emancipation of women within the Legal domain, My paper suggests that the emancipation of any oppressed groups lies in retaining their ambivalent position to Law. The central argument this paper attempts to make. The paper would also explore the nature of the position whether it is a political choice of Dalits or is it the only choice left to Dalits. My argument would be made in the context of violence on Dalits, state law making and implementing laws against atrocities. Opposition to the existence of these laws for eg. Two major parities of OBC political base, PMK in south India and SP in north India demanded the withdrawal of the Prevention of Atrocities Act -1989 and few other related issues.
Panelist: Ratna Appnender, Student, National Law School of India University, Bangalore.
Title: Feminist Politics/Sexuality Politics and the Law
Abstract: Through this paper I intend to look at the Women's Movements engagement with the law as compared to the sexuality movements engagement with the law, in India and the influences each has had/ continue to have on the other.
I want to look at the issues that characterize the nature of the women's movements engagement with the law, which make it comparable to the manner in which the sexuality rights movement has engaged with the law, and at the same time making the ways in which the two movements interact with the law significantly different from the way in which other identity based social struggles interact with the law. In this context I would like to look at the role played by the personal and political notions of the “body” and of the “private domain” in shaping both movements.
The Women's Movement began engaging with the law primarily within the framework of violence, which may also be said for the sexuality rights movement. I would like to trace the shift within both the movements from campaigning against violence against women, or violence against sexuality minorities to demanding progressive and broader law reform. I will look at this in order to analyze the ways in which two movements, which are rights based and share a number of other fundamental similarities, borrow from each other. The ways in which the Women's movement (which preceded the Sexuality Rights movement by a couple of decades at least) created a space and process which in many ways enabled the latter's engagement with the law, as well as the ways in which the Sexuality Rights movement (which can be said to have begun in the 1990's) influenced the second wave of the Feminist Movement in India, and in some sense eased the Women's Movements journey from Violence to Desire.
My paper will study the Women's movement spanning from pre independence nationalist movements around sati, and child marriage to the present, and the Sexuality rights movement beginning in the 1990's and maybe even a little before, focusing on the repeal of S.377 of the IPC, as also campaigns dealing with violence against sexuality minorities like Hijra's and Queer Women which do not necessarily fall within the ambit of S.377.
Panelists: Madhu Mehra and Gayatri Sharma, Partners for Law in Development (PLD)
Title: Re-visiting Gender Justice and the Family
Abstract: The paper/ presentation will problematise the acceptance of the legal framework on conjugality and marriage in rights activism and community action, and emphasise the need to transcend that framework to make justice accessible to women at the margins. The legal framework secures the rights of women who conform to heteronormative values, while excluding other women who deviate from the dominant norms on which this framework rests. Even as women’s rights activism has advocated for greater gender justice within the family, it has not challenged the framework that includes women who conform to dominant norms, and delegitimize/ exclude many other women. For example, the legal wife or first wife is considered to be a legitimate victim of her husband’s infidelity, while the second wife or ‘other woman’, the live in companion, are marginal to the rights work, and often, tainted with stigma flowing from a dominant norms relating to conjugality. Likewise, the rights in respect of same sex relationships have yet to go beyond sexual choice, within the dominant discussions on gender equality in the family.
The presentation will bring out the concerns of women on the margins through the four non normative intimacies explored in PLD’s field work, namely, maitri karar (a bigamous union formalised through a written contract) in Gujarat, nata (customary form of union akin to marriage practiced amongst lower caste communities in Rajasthan), bigamy in Himachal Pradesh and same-sex relationships in Kerala. It will share the findings of the field study, highlighting that exclusion of women in non normative relationships from entitlements and obligations that secure equality in intimate relationships and family life serves to exacerbate their vulnerability. Women in non normative intimate relationships are either not recognised by law, or their relationship is invalid, and therefore they cannot make claims to rights that flow from marriage. In addition, attitudes of activists and community workers can reinforce the stigmatisation of women in non normative relationships.
Even as a small study, the resource book on Rights in Intimate Relationships serves to de-centre legal marriage as the only normative practice in India, and by doing so shows the extent to which our rights advocacy and community interventions are partisan, partial and exclusivist. The presentation seeks to re-invigorate debates on norms underpinning the law and feminist advocacy, to explore transformatory frameworks of rights that seek to secure minimum rights and protections in diverse family forms, regardless of marital status, sexuality, caste or economic deprivation.
4.5 Title: Eroticism and Violence – Continuities and Some Difficult Questions
Panel Coordinators: Akshay Khanna, Institute of Development Studies at the University of Sussex & Paul Boyce, Institute of Education, University of London
Chair: Nivedita Menon
Panel Abstract: Bataille (1962) offers us a formulation of 'Eroticism' as 'assenting to life to the point of death', arguing that death, and violence, cannot be cut away from the erotic. The domain of eroticism, he argues, is the domain of violence, of violation. Yet, within anthropology, law, politics and activism alike, these two domains have, for the large part, been treated as ontologically incommensurable and as having contradictory conceptual implications for the Subject. One is evoked as evidence of agency of the subject, and the other as an instance of its absolute negation.
One context, though not the only one, where these two intersect discursively is that of sexual violence. Here, desire is ascribed to the aggressor, and the 'victim' is constituted as bereft of sexual agency or desire, except insofar as it is negated in the transaction. Sexual violence is thus sequestered into a discreet category of experience, and the possibilities of examining the continuities between this form of experience and other sexual experiences – normative or queer – are obliterated. As a result, we disavow the possibilities of examining what these continuities may tell us about the relationship between power, sexuality and sex.
'Homophobic' and 'Domestic' violence are two instances of objects that have recently been constituted as legal and cultural idioms, with immense rhetorical, political and legal implications. There exist radical disjunctures, however, between the complexity of these experiences and their discursive articulations as juridical and cultural objects. Their very ability to articulate as objects capable of circulating in juridical and moral registers, it seems, is predicated on the stripping away of their messy and erotic dimensions. It is near impossible, for instance, to speak of the erotic aspects of violent relationships, or of the increasing recognition that one aspect of the decision by folk to stay in violent relationships is because those very relationships of 'intimate violence' are often the core source of sexual pleasure. In another vein is the difficulty in pinning down the ontological status of 'homophobic hate crimes' – this being the only juridically mobile idiom for all violence visited upon queer bodies. But much of this violence has erotic dynamics at its core, and these erotics are not the monopoly of the 'aggressor'. If we are to take seriously the postulate that disgust is an articulation of desire that must be disavowed, we must then open up the possibilities of exploring more earnestly the relationship between, if not the unity of, eroticism and violence.
This panel is inspired by a range of recent ethnographic and activist meditations on the conditions of violence, and the lack of a language for speaking about the place of eroticism in these. The panel, envisaged as the beginning of a larger project of fearless speech on the question, shall bring together anthropological, activist and theoretical engagements with the continuities between eroticism and violence. We shall examine this continuity in the context of:
the construction of 'Homophobic Hate Crimes', while examining the discursive moves produced in the process of this construction as far as understandings of sexuality, sexualness and personhood are concerned,
the activist and interventionist problematic of acknowledging sexual desire in intimate relationships that are marked by violence, in the context of the idiom of 'domestic violence'
broader questions of the erotic dimensions of state-subject relationships/interactions,
eroticism in contexts discursively monopolised by the idiom of 'conflict', and
the questions raised by the emerging BDSM community in India, which invokes and brings into question the frame of the 'consent' of the liberal subject in exploring the enmeshed nature of erotic desire, pain and power dynamics.
The conversation between these disparate contexts, we hope, will enable us to inaugurate a language where eroticism and violence are more precisely understood in relation to each other.
Panelist: Rituparna Borah, Nirantar, New Delhi
Title: Domestic Violence and Sexuality
Abstract: Thus far the primary understanding of the linkages between gender based violence and sexuality has been in terms of sexual violence (sexuality plus violence equals sexual violence). This paper will look at other linkages between gender based violence, domestic violence in particular, and sexuality that have emerged during the course of work undertaken by Nirantar (a Centre for Gender and Education based in Delhi). The piece of work entailed a series of workshops on sexuality with staff members of community based NGOs/programmes and members of rural women’s collectives. Broadly the paper would argue that the lens of sexuality is critical in order to understand ‘why’ survivors of domestic violence might return to abusive partners, ‘what’ is perceived as violence and ‘who’ is recognized as a survivor of violence worthy of being helped by organizations working on gender based violence. For example an important reason for the survivor returning to her partner that emerged was her own sexual needs. Leaving her husband would also entail giving up her sexual life with him. Also, naming or experiencing something as violence emerged as being clearly linked to perceptions related to what was acceptable sexually. In many cases the man wanted anal sex (to penetrate), oral sex (receive) or for the woman to remove her blouse during sex (not the norm in the areas where the organizations worked). These were often perceived by the women as being violent acts in and of themselves, whether the partner sought to build their consent around them or not. The paper will reflect on such ground level realities. It will also look at why we as feminists have not thus far been able to engage with these issues and how constructions of the ‘good feminist’ might have hampered us. Levels of comfort with, and understandings of, the erotic perhaps impact us as ‘survivors’ as well as dispensers of justice.