5.2 Title: Employment, Discrimination, and the Law
Chair: Gayatri Singh
Panelist: Roopa K.L., Research Scholar, Centre of Social Medicine and Community Health, JNU, New Delhi
Title: Limited Right to Work: A Study of Women Involved Labour Cases in Various Courts of India
Abstract: Women workers are generally not aware of their legal rights and even if they do approach the legal machinery, social and economic factors like class situation, fear of loss of job, act as restraints on them in voicing their rights and demands. Legislations are interpreted according to the whims of the employers and violations are rampant. Sometimes legal institutions are also seen as acting against the interests of the women workers.
Many employers try to avoid paying maternity benefits by claiming that worker is a temporary employee hence not entitled to benefits. One such case is Municipal Corporation of Delhi v. Female Workers (Muster roll) and another. In this case, the question raised is whether the daily wage employees working on muster roll is entitled to maternity benefit as their services were not regularized. In Pramila Rawat v. District Judge Lucknow,the male dominated view of the court is clearly visible. The court views the maternity benefit as a privilege or concession to women worker not as her right. Likewise in Air India v. Meerza, the court upheld a regulation requiring air-hostess in Air India to retire if they got married within four years of being employed – a condition that was not imposed on their counter parts, assistant flight pursers. By this decision, the right to equality and prohibition of discrimination on the basis of sex lost its real meaning.
This paper intends to present an exploration of court cases where women approach the various courts in India for their labour rights and analyses the discriminatory nature of court verdicts.
Panelist: Maithreyi Mulupuru, Centre for Study of Culture and Society, Bangalore
Title: Income Tax and Women’s Labour
Abstract: In this paper I will seek to explore Indian Income Tax Law's attitude towards women's labour. Traditionally, there is no bar on the taxation of imputed income in India – legal fictions have always been used to impute an income from the ownership of house property or to impute income arising from a transferred asset to the transferor instead of the transferee. However, the law shies at imputing income where it considers the source-work 'undeserving' of income – as in the case of household labour. I seek to explore the construction of labour, particularly women's labour, as deserving or undeserving of income, by the law of income tax in India.
In order to do so, I will be examining the traditional law texts – statute and case law – but also proposals and discussions around them. I will use these texts to show how the income tax law constructs women's labour as unworthy of an income. I will also attempt to analyse the assumptions underlying and effects of, this construction.
Panelist: Paul H. Merry, Law Offices of Paul H. Merry, Esq. 50 Congress Street Boston, Massachusetts, USA
Title: Recognition of Unconscious Bias as Actionable Signals Change in Enforcement of Discrimination Statutes in the USA
Abstract: Most state and federal statutes in the USA aimed at prohibiting discrimination in employment require proof that the alleged discrimination was intentional. Yet some of the most insidious forms of discrimination are unconscious: employers act against employees or potential employees on the basis of unstated, unconscious assumptions about them based on their age, gender, race, disability, religion or other protected characteristics.
However, both state and federal courts in the U.S. have become increasingly receptive to arguments that adverse actions based on unconscious bias are equally actionable as overtly biased actions. In particular, recent decisions have condemned adverse employment actions based on stereotypic thinking about employees or potential employees that precludes individualized consideration of an employee’s capacities. Decisions have held that actions based on stereotypes of mothers of young children as being too absorbed with their families to deserve promotion violate the law. Stereotypic thinking has also been condemned in the race context; and the likelihood exists that unconscious bias will be recognized as actionable in broader areas as well.
The willingness of courts to find unconscious bias actionable represents an advancement for the rights of minorities and other protected classes in the form of a broadening of the concept of the intent that must be shown to succeed in proving that employment discrimination occurred.
Panelist: Tarunabh Khaitan, Fellow in Law, Christ Church, University of Oxford
Title: Fundamental Issues in Antidiscrimination Law and the Equal Opportunities Commission Bill
Abstract: Substantive aspects of antidiscrimination laws concern themselves with four fundamental questions: (i) who ought not to discriminate, (ii) who ought to be protected from discrimination, (iii) in which contexts ought discrimination to be prohibited and (iv) what ought to be the scope of the protection of these laws. As India discusses a comprehensive antidiscrimination law in the form of the draft Equal Opportunity Commission Bill proposed by the Menon Committee, it is important to assess the provisions of this Bill. In this paper, I will focus on the substantive aspects of the Bill, although the regulatory mechanism proposed therein also demands close scrutiny.
The Menon Bill borrows comparative terminology (such as 'direct' and 'indirect' discrimination) that has been developed in jurisdictions which have enforced antidiscrimination laws for decades. In this paper, I will show that the Bill fundamentally misunderstands the manner in which these concepts are applied in those jurisdictions. I will further argue that any coherent response to the fundamental questions in antidiscrimination law is possible only in light of the normative values that we believe should underpin them. I will then propose a positive-autonomy-based normative framework within which a sound antidiscrimination law regime can be contemplated.
5.3 Title: Adivasis in the Interstices of Law in Jharkhand
Panel Coordinators: Roger Begrich & Kaushik Ghosh
Panel Abstract: The recent turn of events in the Adivasi regions of India have brought up the question of the exact relationship of the Law with Adivasi communities. While the extent and scope of the current armed intervention against Maoist groups in Adivasi regions is distinctive, the emergence of the Adivasi body as the limit and possibility of Law (and order) requires a broader mapping of the entanglement of the Law and the Adivasi subject.
Against the backdrop of the complex form of Adivasi modernity, this panel will investigate some of the conundrums of recognition posed by legal mechanisms in postcolonial India. Based on extensive ethnographic research and legal practice in Jharkhand, the three contributions to this panel aim to address the politics of contemporary Adivasi belonging through analyses of the ways in which formulations of the law, as well as the discretion of the judiciary and the executive circumscribe the conditions of possibility for Adivasi subjectivities. Law will thus not only appear as a cultural process, but through mappings of its entanglement with indexical tropes of Adivasi modernity – land, liquor, and questions of religion - the panel aims to interrogate the ways in which relations between collectives and sovereignty are territorialized in the postcolonial state. The contributions will thus ask what kind of tribal subject the law envisions, or what kind of legal subject the Adivasi constitutes? And what struggles Adivasis in Jharkhand face in their efforts to draw their landscapes of belonging onto maps of postcolonial legality?
Panelist: Roger Begrich, Doctoral Candidate, Department of Anthropology, Johns Hopkins University
Title: Difference and Drunkenness: Adivasi, Alcohol and the Law in Jharkhand
Abstract: The customary rice beer of Adivasis in the Indian state of Jharkhand marks an important paradox: It is the only form of alcohol which is dealt with in the state's liquor laws not only in terms of either prohibition, or licensing and taxation, but also in terms of permission. However, the permission to prepare and consume rice beer is limited to members of Scheduled Tribes, that is, to Adivasis. As my ethnographic research indicates, this legal norm (of a community-specific exception to the rule of prohibition) cannot be implemented. There is thus a specific legal provision, applicable to a particular population, that exists notwithstanding the impossibility of its implementation. I will argue in my paper, that this paradox is an expression of the ways in which the governance of alcohol in Jharkhand reifies the inherent difference of the tribal subject in India and marks Adivasi as a distinct population, and a population worthy of reform. Following Derrida, who has argued that the existence of the law per se requires sober, rational subjects, I will discuss Adivasi insobriety as an allegory for subjecthood.
Panelist: Ranaker Bhengra, Advocate, High Court Ranchi, Jharkhand
Title: Tribal Religion and the Law in Jharkhand
Abstract: With a discussion of two court cases involving tribal religion in Jharkhand, this paper will both investigate the nature of secularism in India, and explore the relationships between the state and Adivasi communities as they are impacted by law. The first case to be discussed challenged the omission of tribal spirituality (most frequently referred to as Sarna) as a possible religious category on census forms. By forcing or manipulating non-Christian Adivasis to identify as Hindu (or “other”), the state became complicit in what many Adivasi perceived to be an annihilation of their histories, and supportive of the attempt of the Hindu right to cause a division between Christian and non-Christian Adivasis. The second case discussed in this paper involved the Munda religion itself. I had taken the case before the High Court, subsequently, the Supreme Court in order to prevent the construction of a certain small dam and the subsequent submersion of Adivasi habitats, arguing that the burial sites represent sites of worship. If the court would have recognized the burial sites as religious sites, and prevented the dam, then the sacrifice of Adivasi lands and their spiritualities could have been prevented. Furthermore, it could have supported the Sarna religion for legal recognition as an Indian religion. On the basis of these two cases primarily - while alluding to other examples as well - I will argue that the failure of courts to recognize Adivasi religiosity amounts to a failure of the promise of Indian secularism, and is indicative of the reification of Adivasi communities as pre-modern and marginal.
Panelist: Kaushik Ghosh, Assistant Professor, Departments of Anthropology and Asian Studies, The University of Texas at Austin
Title: From the Law of the Landscape to the Landscape of Law: Burial Stones and the Possibilities of Living in Adivasi Modernity
Abstract: Taking the entanglement of Mundas with colonial and postcolonual legal regimes as its backdrop, this paper attempts to trace the travel of “sasandiris” – burial stone – through the long duree of adivasi modernity. Sasandiris lived as complex indexical signs in a dense premodern world of lithic cultures. They assembled collectives – the households of the original “killi” or septs that settled a given village – around themselves by indexing their belonging to a particular land, while also marking the land as belonging to such collectivities. The post-“Permanent Settlement” world – the colonial theatre for the formation of what we today will call political economy and the biopolitical – could be read as the violent interruption of this law of the landscape and the remapping of land and populations. Law, that supracodification in modernity of all relations between humans and humans and non-humans (and between non-humans too), could only rekindle the landscape of sasandiris as evidentiary objects at best. At worst, sasandiris became mere stone-relics of a primitive form of human life. The struggle for introducing sasandiris as evidentiary objects is a crucial one and Law still has little space for that. (Ratnaker Bhengra’s paper will elaborate on that story). I, however, want to work with an ethnographic vignette to try to tease out how the Landscape of Law produces certain adivasi ontologies and affects today around the object called sasandiri. How does the sasandiri appear as a force within everyday Munda worlds? What does it enable today after the event of the Law? How does the messy politics of postcolonial adivasi belonging crystallize around the spectral form of the sasandiri?
5.4 Title: Narratives of Law
Panelist: Sivamohan Sumathy, Department of English, University of Peradeniya, Peradeniya, Sri Lanka
Title: Legal Manoeuvres and the Literary Endeavour
Abstract: In this paper I attempt to look at the law as a fictional narrative, narrating the hegemonic story of nations, territories, boundaries and exclusion. In claiming that it is a hegemonic story, I wish to say that it is a story not of domination but of contest and context. The paper looks at two separate narratives regarding the boat people of Sri Lanka, people who for some reason jump into boats, traverse the high seas in order to enter another country ‘illegally’ and claim citizenship or seek asylum. In a countervailing attempt, the Australian government presents its case of retaliation by deciding to not process the applications for asylum from Sri Lankan nationals. This tussle between the terrible agency of the people who struggle to escape the ‘fate’ of being a Sri Lankan and the authority of those denying those persons entry into Australia, is captured in an advertisement that the Australian government runs on the Sri Lankan national Television only in Tamil. The advert, which concludes with the Australian government’s decision to not process the applications, features a story of misery and suffering that the asylum seeker undergoes in the process of fleeing ‘illegally’. In my analysis I hope to look at this advertisement in tandem with /in opposition to the recently released novel by Channa Wickremasekera, an Australian of Sri Lankan origin, In The Same Boat, which narrates an allegory of flight, loss, deprivation and drama in the high seas. By holding the two together, I wish to look at the narrative strategies deployed by both the Australian government and by Wickremesekera, in order to tease out some of the theoretical underpinnings of the legal endeavour of sovereignty, which I see as a ‘fictional’ and narrative enterprise, contested in turn by the marginalized.
Panelist: Rukmini Sen, Junior Fellow, Centre for Women’s Development Studies, New Delhi
Title: (Re)Construction of the Nation through Women: Legal Texts as Sites of Culture and Rights
Abstract: Sites of law have been spaces of claiming demands, reforming existing structures and also sites of resistances and questioning. There are certain foundational texts on the women’s question in India, which make them sites of law. This paper will read three of those texts analyzing the corporeality in legal documents, sighting the law as a cultural process as well as a rights claiming process. The first document Women’s Role in Planned Economy, 1947 is important because it is the nation’s imagination of the citizen woman. The ideology of the document stresses not to grant rights for the ‘exclusive benefit’ of the individual but ‘in the interests of the whole nation’. The second document Report of the Committee of the Status of Women in India, TowardsEquality, 1974 comes 27 years after an independent nation’s performance, the title clearly suggestive of what has evaded the women of the nation: equality. This document becomes one of the bases for the women’s movement in India from the late 1970s. Though women do not numerically constitute a minority, they are beginning to acquire the features of a minority community by the three recognized dimensions of inequality: inequality of class (economic situation), status (social position) and political power. The third document is the report of the National Commission on the Status of Self Employed Women, ShramShakti, 1988 which stated that 89% of the women workers are in the unorganized sector. While these reports were being written and reshaping the policy makers understanding of women’s question in India, at the international platform, there was the International Year for women in 1975 and then the Decade from 1976-1985, with the objectives of Equality, Development and Peace while the 1995 Platform for Action, Beijing focused on women’s empowerment.
The issues that will be looked into as a part of analyzing these documents are the following:
Image of the woman as (re)created by the text, does that change depending upon the constituent members’ working on the report?
What is the nation’s construction or the critique of that vis-a-vis women’s work and family in these texts?
Is there a paradigm shift from welfare to development to empowerment in addressing the women’s question in the three foundational texts?
Is there any similarity between the language and ideology of the international documents and that of the Indian ones?
Panelist: Sarim Naved, Alternative Law Forum, Bangalore
Title: ‘Roadside Romeos’ to Lalit Kala Awardees: Denunciations in the Name of the Obscene
Abstract: Obscenity is a unique offence in criminal law, bereft of a definition and judged only by its effect. It is also an offence that unites acclaimed artists and authors like M.F. Husain, Khushwant Singh and one Mr. Zafar Ahmed Khan, all of whom have been accused of producing obscenity. While M.F. Husain and Khushwant Singh were protected by their stature, poor Mr. Khan, a lovelorn sixteen year old from Lucknow, had to spend three months in jail for causing annoyance to two girls and three witnesses. The tolerance for high art and dismissal of low expression is emblematic of the predominant normative element in judging obscenity.
The paper would seek to trace the development in the law regarding obscenity in India from the colonial era to the present day. While the general trend of the Courts has been to protect acclaimed authors and artists from obscenity charges, small town newspapers and publishers have not been as lucky. In effect, this affords judicial recognition to two different offences of obscenity, one for the English speaking elite who are hard to corrupt, and another for the masses who have been deemed to not have the judgment to react in a non-criminal way to obscene literature.
In recent times, the issue of obscenity has also become increasingly politicised with specific films, songs and even promotional materials being physically attacked by specific political and ideological groups. The paper also seeks to trace the legal response to such 'moral policing', and how the judiciary has reacted to different forms of material that is considered as sexually explicit.
While studying legal responses to the issue of obscenity, it would be inappropriate to deny or ignore the temporal and spatial aspect of the judgment of allegedly obscene materials. Attitudes have changed over time and they may also differ over areas. The paper, thus, eventually would seek to study whether there is a unifying thread in the State response to this nebulous offence, or whether the only hope for a person accused of obscenity is to land before a judge who agrees with his social and political opinions, or in Mr. Zafar Ahmed Khan's case, a judge who enjoys inviting women for a rickshaw-ride with him.
Panelist: Carmel Christy K.J., Asst. Professor, Dept. of Journalism, Kamala Nehru College, University of Delhi
Title: Mediating/Constituting Sexualities; An Analysis of Media Culture and Legal Discourse
Abstract: The paper attempts to work out the link between media, legal discourse and social categories such as caste and gender in the spatio-temporal context of Kerala. It seeks to explore the critical role played by of media discourse in mediating/constituting/reconstituting our notions about sexualities that are imagined as historically constituted vis-à-vis with other social categories. An attempt is also made to explore how the legal discourse marks a gendered citizen-subject whose caste identity is ambivalent.
This is done by analyzing the Suryanelli case, a sexual harassment case which became the centre of debates in public space of Kerala in the latter part of the 1990s. By looking at the media reports, a film based on the incident and the High Court judgment on the case, the paper discusses how the social/cultural context narrates/recreates an incident in the public space. The peculiarities of the regional space of Kerala are also discussed in order to understand and contextualize historically the specifities of the incident in analysis.
My concerns in doing this exercise are the following.
I select this particular case as it is one among the first sexual harassment cases which was widely reported in the media and the case became so infamous that the political parties used it as part of political campaigning in the next two elections in the state. I feel it is important to explore this emerging culture of sexualizing of public spaces and discourse of media, how it becomes a part of the legal discourse and the notions around sexuality and gender that gets rearticulated in these different spheres.
The paper will be divided into three major sections. First part is a summary of the case and the socio-political milieu in which the incident happens. The second part will be an analysis of the media discourse around the incident. The third part will critically look at the High Court judgment in the case which acquitted all accused except one.
5.5 Title: Law and Life in Contemporary Gujarat
Panelist: Mona Mehta, Assistant Professor, Scripps College, Claremont, USA
Title: Fog of Facts: Democracy and Accountability in Gujarat
Abstract: This paper highlights the circumstances under which procedural and substantive aspects of democracy come to be at odds with each other and offers insights about the practice and vulnerability of democracy more generally. I do so by examining the workings of the Gujarat government appointed Nanavati-Shah inquiry commission (2002) and the Tehelka magazine sting operation (20007)—both of which sought to reveal the truth about the anti-Muslim violence in Gujarat in 2002. I consider why the divergent facts brought out by the commission and the sting resulted in the same outcome, namely, the evasion of political accountability. The first part of the paper ethnographically analyzes the proceedings of the Nanavati-Shah commission to demonstrate that its transparently phony proceedings served different purposes for its many audiences and could not possibly have been established to secure accountability. The second part examines the public responses to the Tehelka sting operation to illuminate a particularly disturbing predicament of whether efforts to make the “truth” visible can ever produce accountability when exclusion is the dominant register of politics. I conclude with drawing broader observations about the relationship among procedural and substantive democracy and a popular consensus for exclusionary politics.
Panelist: Farhana Ibrahim, Assistant Professor, Department of Humanities & Social Sciences, I.I.T Delhi
Title: Match Made in Law: Organ Transplants, the State and Social ‘Integration’ in Gujarat
Abstract: This paper explores the social construction of kinship networks in Gujarat through organ donation. The Gujarati community is known for its mercantile and entrepreneurial success both at home and overseas and philanthropy is a well-documented trait amongst them. The paper argues that this so-called philanthropic spirit also extends to the human body. In a country like India where transacting in human organs is prohibited by law (it is illegal to sell or to ‘voluntarily’ donate an organ to someone unless they are close kin), cadaveric organ donations become key to enable non-related persons to receive organs from a brain-dead patient. Within the country as a whole, Gujarat is one of four states that have successfully initiated such transplants. This paper seeks to ask not only why there should be this connection between successful cadaveric donation among Gujaratis (factoring in religion, spirituality, and notions of the body and gift giving specific to them), but also to look at the new kinds of social connections that are forged between the families of organ donors and recipients, cutting across caste, class and religious lines. How does this give new meaning to social integration, especially in the present socio-political context of inter-communal strife and mistrust? The state provides the framework for organizing such cadaveric organ exchanges, for it is only within the strict parameters of the law that this becomes the necessary form of organ donation. The paper argues that the state thus emerges as the matchmaker par excellence, determining the modalities of exchange in body parts among communities who might otherwise be unwilling to indulge in any form of social contract with one another.
Panelist: Surabhi Chopra & Prita Jha, Nyayagrah; Centre for Equity Studies, Delhi
Title: Interrogating Judicial Discourses: The Struggle to Define the “anti-national”
Abstract: In this paper, we aim to look at three judgments in cases involving violent crimes during religious massacres against women victims. We will look at how courts at different levels – the trial court, the high court and the Supreme Court – have discussed gender and religion in the course of their deliberations. We will look also at how judicial acknowledgement or analysis of gender and religion interacts with judicial discussion of secularism and national security. Do courts at different levels discuss gender in similar ways? For example, does the trial court rely upon existing jurisprudence that challenges misogynist conceptions of women as unreliable witnesses? Do the higher courts discuss religious identity in any detail, or do they discuss it only euphemistically? Particularly in cases involving sexual crimes, how do courts grapple with the problem of “double intention” – the intention to commit the crime, and the intention to target the victim because of her religious identity? In cases involving violence that starkly challenges grand nationalist fictions about secularism and equality, how have judges engaged with these nationalist fictions, and how is this engagement mediated by local politics, individual and institutional capacities? Does the judiciary speak with one voice, when it comes to defining the “anti-national”, do they share a common language of secularism, law, order and justice.
5.6 Title: The Paper Trail: Documentary Forms and Practices
Panel abstract: This panel attempts to understand ‘official’ documents as material objects that circulate across various epistemic, and social registers. Documents have been seen as bureaucratic record exemplifying the documentary micro practices of the governmental state, as artifacts of modern knowledge that are imbricated in specific technologies of writing, truth and authencity and as talismanic objects capable of carrying, containing, or inciting affective energies which are experienced as real, in specific webs of sociality. As commodity forms, official pieces of paper from identity cards to divorce decrees, both disembody and rematerialize social, sovereign and economic relations. What is the place of documents in the bureaucratic universe - how do we make sense of their proliferation as legal objects, counterfeits, official and popular imitations and apparitions of the legal? What are the archival logics underlying documents and the technologies of identification and certification that produce the document as acceptable truth? What are the forms of legibility and
illegibility engendered through these everyday bureaucratic practices and protocols?
Through this conversation, we hope to explore how particular legal documentary forms and writing practices, function as nodes of sovereignty and governmentality as well as counter-sovereignties, contestation and resistance.
Panelist: Bhavani Raman, History Department, Princeton University
Title: Forgery, Perjury, and Attestation in Early Colonial Madras
Abstract: This paper discusses the importance of attestation protocols and evidentiary practices to the exercise of colonial authority in early colonial Madras. Document writing under colonialism has remained subsumed in arguments about codification in which writing is contrasted to the fluidity of customary practice and oral guarantees.
In contrast, this paper attends to the tense conditions under which the norms of generating credible information were determined, and degree to which monopolizing the protocols of attestation was central to Company juridical authority. Using official correspondence on forgery and perjury as a lens onto documentary procedure, this paper traces how the early colonial state’s discretionary authority was consolidated through documents in the popular imagination of Madras inhabitants.\
Panelist: Taringini Sriramanan, PhD (Delhi University), also registered as doctoral student at Centre for the Study of Developing Societies (CSDS)
Title: In the Image of the Document: the Ration Card and the ID Documents Regime in India
Abstract: Identification documents are centrepieces of the paradoxical life of modern states, animated by sovereign discourses of legitimacy, legality, legibility but also those of everyday life, informality and illegality. They are products of rational authority and modern state functions of setting norms, enumerating and recording populations and evolving administrative categories. Yet they are an indispensable part
of discursive processes of fashioning into existence and producing the modern state and enacting its persisting rationality. If documents are useful in the hands of modern states to reinforce bureaucratic, legal-rational authority, they also help constitute the very discursive material of which modern states have been moulded. If the
functions of a document which entitle a holder to exercise vote, pay taxes, cross borders are all reiterative of state sovereignty, identification documents through their various ceremonial tokens of seals, stamps, signatures and the inscription of sovereign presence help set up this legal authority.
This paper seeks to foray into the discursive life of the identification document contained in the legal, cultural and social norms that it signifies and understand the various conceptual categories that constitute identity – name, residence, family,
employment, gender and sexual status. An identification document, though it was the property of the state, was shaped by private actors like doctors, employers and firms. I make out the history of official construction of these categories to be far from being an inclusive, just and transparent process or one that strengthened the agency of
legal subjects. Official mistrust of subjects, protocols of representation through which identities were filtered, bureaucratic conventions of objectifying identity through written testimonies and the fear of illegality ensured the distance of the document from the documented. While a comprehensive study of identification documents
falls outside the scope of this paper, I wish to navigate through a wealth of rationing documents that were some of the earliest identification documents in post-independent India. A historical study of these documents straddling colonial and post-independence India (1940 to 1970 roughly) will help me piece together the identification documents regime which constantly precluded the self-definition and
agency of subject-citizens in India.
Panelist: Shrimoyee Nandini Ghosh, Centre for the Study of Law and Governance, JNU
Title: The Many Lives of Stamp Paper: The Telgi Stamp Paper Scam
Abstract: Given its status in everyday life in India as an instantly recognizable, and immensely popular legal form, and its' uniqueness in combining a revenue and evidentiary function within a single legal instrumentality the marginality of 'stamp paper' and 'stamp duty' as objects worthy of analysis within the regime of doctrinal law is somewhat surprising. They have received little attention from the point of view jurisprudential scholarship, and the few legal books on the subject, are in the nature of manuals for the use of the practitioner. My paper attempts to map the many lives of stamp paper, as it circulates across various social, legal and epistemic worlds.
It is to in light of this background that I will then analyse the notorious Telgi Stamp paper scandal. In 2001, Abdul Karim Telgi was arrested for having defrauded the state of of Rs 100 crore (US $ 20 million) by infiltrating the state’s stamp paper distribution bureaucracy. The Telgi fraud case received unrelenting media coverage, until Telgi's conviction, and eventual death in custody. A scandal can serve as a “critical event" that reveals otherwise obscured socially embedded structural factors, working to contain 'contradictory, and possibly even violent social impulses’. In this
paper I wish to use the moral spectacle of the Telgi scam to understand the (under)worlds of Indian legality, and something of the complicated relationships between power, paper, money and truth.
6.1 Book Discussion-Subalternity and Religion: The Prehistory of Dalit Empowerment in South Asia by Milind Wakankar
Chair: Anupama Rao Discussants: Pratap Bhanu Mehta, Deepak Mehta & Bhrigupati Singh
6.2 Title: Authorising Culture: The Challenges of (and to) Property
Panel Coordinator: Dwijen Rangnekar
Chair: Prashant Iyengar
Panel Abstract: Cultural heritage is a seemingly vast resource. While apparently ‘plastic’ and malleable, it is also restrained by norms and customs. And it is in this restraining that certain tensions between the overlapping, permeable and fuzzy borders of ‘culture’ and ‘property’ are located. For instance, even while an explosion of the commodity form is archetypical of capital, there is a cultural reaction that seeks ‘singularisation’ to differentiate and mark things. Societies maintain a symbolic – though temporal – inventory of things that are precluded from the commodity form. No doubt, it is the intermeshing of these cognitively distinct spheres that heralds various paradoxes: the more a thing is marked as priceless it is equally of tremendous market value. For that matter, the drive to differentiate and classify things has an in-built motive force towards commodity form.
Accompanying these and other tensions concerning culture-property are the discourses that animate (intellectual) property. It is no merely – or only – about rents and capital accumulation but also include concerns about equity in global trade, identity politics, demands for justice and recognition. In recent times, the public discourse on intellectual property has been transformed by the range of new objects being propertised and the emergence of new claimants for these rights.
The papers in this panel address these and related concerns. Engaging from their respective origins, the papers also bring to bear differing materials on the permeable and fuzzy borders between culture and property. Kapila, studying items selected to represent India at the Great Exhibition in Britain and Paris in the mid-19th century, draws attention to the tensions as the items travelled in terms of how value was authorised and the conflicts between ownership and dispositional control. Fish, studying the contemporary exposure of yoga to intellectual property claims, interrogates the notion of ‘origin community’ to explore and explain uses of intellectual property as a way to maintain the social obligations of circulating knowledge through a guru-disciple relationship. Coombe and Aylwin concern themselves about the increasing proliferation of ‘marks indicating conditions of origin’ where they witness an array of values being invested from the identity politics and desires for justice in trade to hope for future markets. Rangnekar, using a mix of ethnographic material and multilateral trade negotiations, interrogates the increasing investment of public hope in Geographical Indications but drawing attention to a ‘seduction of plenty’ and a rhetoric of fear constituted by a ‘threat of misappropriation.
Panelist: Kriti Kapila, Wolfson College, University of Cambridge
Title: Made in India: Commerce, Heritage and Other Properties of Culture in 19th Century British India
Abstract: This paper outlines the fuzzy boundary between commercial and cultural value in things selected to represent India at the Great Exhibitions in Britain and Paris in the mid-19th century. Whilst some objects were included to represent universal industrial potential, others were selected to showcase their distinctive cultural value. But such a differentiation was neither clearly articulated nor maintained either at the moment of selection nor indeed in their final display. The original owners and manufacturers of these goods were neither clear nor at times in agreement with the mode of transfer of these objects and goods. Disputes around ownership and dispositional control emerged between colonial officials and the original owners as to whether these objects were a loan or gift to the colonial state, or a consignment for international trade. Further, many objects posed particular classificatory challenges (eg. stoles and shawls) not just because they were selected for their commercial potential but ended up being valued for the cultural qualities of embroidery, weaving, etc. but because they also defied prevailing conventions of the category they were originally submitted under (i.e. unstitched material could not be considered an object of clothing). In following some of their contested journeys the paper argues that the differing final destinations (museums, private collections, trade catalogues) of these objects not only adjudicated on their value but also laid the early foundations for the emergence of a more rigid regulation of traffic between the world of commerce and that of culture.
Panelist: Allison Fish, Anthropology Department, University of California, Irvine
Title: “It’s Gurus All the Way Back”: The Inalienable Nature of Yogic Knowledge Transference
Abstract:Issues surrounding the management of intangible cultural heritage are subject to increasing debate stimulating new frameworks that will have wide ranging impacts. Many cultural rights proponents argue that such valuable resources should be administered by the appropriate “origin communities”, often through the use of proprietary claims. However, “origin communities” are rarely self-evident and their legal identification is a conflicted, political process of inclusion and exclusion that preferences biological kinship networks and geographical proximity as metrics of relatedness.
This paper explores the management of yogic knowledge in light of the practice’s increasing exposure to intellectual property claims. The discussion considers how expert practitioners, as a potentially legitimate “origin community”, understand and attempt to manage the circulation of yogic knowledge. In doing so, I draw from ethnographic fieldwork among three lineages of practice that rely upon two distinct and seemingly incompatible management techniques, yogic theories of knowledge transference and intellectual property rights. In terms of the former, I examine practitioners’ understanding of knowledge transference in the guru-disciple relationship as a primary logic around which these communities form. Through this relationship knowledge exchange can be understood as a powerful relationship of enduring social and ethical dimensions. The analysis then shifts to explore how yoga practitioners make this understanding commensurate with their use of intellectual property, a domain where information is theorized as an alienable object whose exchange produces only the momentary market relations required by capitalist logics. Significantly, it is through this process that law can be conceptualized, not as a dominant paradigm, but as an effective technology deployed by yogic practitioners for the purpose of meeting the social obligations inherent in the guru-disciple relationship. Through this analysis the paper hopes to blend socio-legal theory with science and technology studies specifically in order to interrogate the relationship between paradigm and technology in the law.
Panelist: Rosemary J. Coombe and Nicole Aylwin, York University, Canada
Title: Bordering Diversity and Desire: Marking Conditions of Origin in Global Commerce
Abstract: Marks indicating conditions of origin (MICOs), particularly geographical indications, appellations and denominations of origin, as well as collective and certification marks are legal vehicles that are increasingly common in global commerce. Subjects of international trade politics, they figure in neoliberal regimes of governance, the projection of community identities, spaces of hope and desires for justice and recognition.
These marks paradoxically enable a new form of ‘sociospatial fix’ while travelling between sites of production and consumption. They create new borders around newly valuable forms of cultural difference while linking producers and consumers in new relationships. We argue that the practice of using these marks challenges conventional approaches to studies of production and consumption, social identity and identification, cultural difference and diversity. Their study also introduces new expressions of desire into commodity circuits, positioning affective labor as a force in both consumption and production.
Panelist: Dwijen Rangnekar, University of Warwick, UK
Title:Investments of Hope and Fear: Reading the Global Trade Negotiations in Geographical Indications
Abstract: Geographical indications (GIs) are a relatively new instrument of intellectual property, having been introduced by the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994. However, they speak to a long tradition of custom and norms in trade and commerce of the use of indicators of geographical origin to suggest and capitalise on associated quality and reputation. Among the many remarkable features of GIs is the constellation of global south members at the World Trade Organisation that canvas for stronger intellectual property – quite in contrast to the ‘usual’ North-South divide. For those canvassing for stronger rights, GIs are seen to offer the hope of protection for long established cultural repertoires; thus, potentially relevant for sectors like handicrafts, agriculture, and petty commodity production. Place-name protection, the argument goes, would enable differentiation in globally-trade commodities like rice, tea, coffee, and grains; thus, restoring equity in global supply chains. For that matter, GIs filter into wider development-speak, as they find favour as a policy instrument to promote objectives as related and diverse as biodiversity conservation, protection of traditional knowledge, rural development, ethical consumption and identity politics. Theoretical ideas such as ‘culture-economy’, ‘endogenous development’, ‘localism’ and ‘repeasantisation’ present a cognitive framing of GIs that legitimate the wider mobilisation around GIs by development and donor agency projects. The paper seeks to interrogate this investment of hope in GIs.
Public discourse in intellectual property is animated by hope, whether in terms of capital accumulation and markets or even a hope that is contained within the residual flexibility of TRIPS (e.g. access to medicine). GIs are no exception – and the paper, using ethnographic material from a case study of Feni in Goa, frames hope in terms of a ‘seduction of plenty’: the future markets and exports to be acquired with the GI. This localised hope is found to filter across different spaces and places; thus, found to animate the debate for stronger GIs at the WTO and at other multilateral forums (e.g. the Food and Agriculture Organisation). Public hope is embellished by public fear that is constituted by a ‘threat of misappropriation’ and biopiracy (e.g. Basmati). The paper demonstrates from local ethnographic material and a critical reading of multilateral trade negotiations how this public fear remains a constant companion of public hope. Thus, in a pincer movement, the (local) mobilisation for a GI is equally urgent and quietly (and quickly) closed and contained.
6.3 Title: International Law and Global Justice
Chair: Amit Prakash
Panelist: Radha D’Souza, Reader in Law, School of Law, University of Westminster
Title: Imperial Agendas, Global Solidarities and Socio-legal scholarship on the “Third World”: Methodological Reflections
Abstract: This paper draws attention to the theoretical poverty of socio-legal scholarship on the “Third World”. Socio-legal scholarship on the “Third World” is driven by two contending impulses. The first is the “development” agenda spearheaded by Western governments and International Organisations. The second is the global solidarities critical of the inequities and human degradation following from the “development” agenda. In the first type of scholarship social and legal histories are treated as unproblematic. The second type of scholarship is critical of positive law and sensitive to social and legal histories of the “Third World” but the theoretical lens through which they view socio-legal issues in the “Third World” do not provide the conceptual resources to bridge the analytical gap between imperialism of the past and the present. Both types of scholarship rely on liberal theory, positive law and constitutionalism. Consequently imperial agendas and global solidarities share common theoretical grounds and appear as mirror images. For socio-legal studies to be relevant to societies with colonial histories the shared conceptual grounds between the two contending forces need to be interrogated.
Section two of the paper does this by tracing the trajectory of socio-legal studies about the third world, the reasons for the resilience of colonial themes and patterns and the disjunctures between past and present in socio-legal studies in the Third World. It discusses the theoretical lenses through which law and society relations are viewed. In the third section the paper argues for developing methodological resources for putting socio-legal studies about the Third World on a sound philosophical foundation consistent with the geo-histories of Third World societies. This includes revisiting Eurocentric theories of relations between law, state and society, and engaging questions of social ontology. At stake is the very concept of “society” in social and legal theory.
Panelist: Jagjit Plahe, Director, Diplomacy and Trade Program, Monash University
Title: Implications of the “Global Europe” Strategy for South Asia: A Political Economy Perspective
Abstract: Using a political economy approach, the overarching objective of this research paper is to analyse the trading relationship between South Asian economies and the European Union (EU) in light of the “Global Europe” strategy. The project also aims to explore the economic and social implications of the “Global Europe” strategy for regional trade integration between the South Asian countries. After independence, former colonies enjoyed special non-reciprocal trade preferences into the European market such as the Generalised System of Preferences (GSP) and Everything but Arms Initiative (EBA). In a marked changed to its trading relationship with developing countries, in 2006 the European Commission issued a Communication titled “Global Europe: Competing in the World - A Contribution to the EU's Growth and Jobs Strategy”. The “Global Europe” strategy marks a clear departure from the EU’s non-reciprocal trade preferences for developing countries. It is a strategy which is aimed at keeping “the EU at the forefront of international competitiveness’” both through the WTO as well as actively pursuing market access opportunities through free trade agreements known as Economic Partnership Agreements (EPAs). In the current EPA negotiations, developing countries are expected to make trade commitments over and above their WTO commitments, which are known as WTO-plus. EPA covers “new” areas such as investment, government procurement, competition policy, environment, labour and stronger rules for intellectual property. Such WTO-plus provisions have profound and complex socio-economic implications. This study will add to a small but growing literature on the implications of EPAs for the third world. While some studies have focussed on the EU’s trading relationship with the African, Caribbean and Pacific countries, few studies have covered the EU’s post-2000 trade relationship with South Asia. A South Asian study would be particularly insightful since the various countries are at different levels of development and have different levels of negotiating capacity in trade negotiations.
Panelist: Sundhya Pahuja, Associate Professor, Melbourne Law School, Director, Law and Development Research Programme, Institute for International Law and the Humanities, University of Melbourne
Title: Rethinking the Development Promise
Abstract: Sixty or so years since its modern invention, development as an idea(l) is still reiterated as a space of hope. This is despite the mountain of evidence of the dislocation and emmiseration brought in its name. The resilience of development is testament to its ‘religious’ quality; it is posited as both process and horizon; it exits in the realm of faith, but its markers claim to be scientific. Such a position leaves it immune from attack. Developmental failures are attributed to the insufficiency of the transformation of the ‘developing’ society rather than casting any doubt on the prescription. Because it is posited as both process and horizon, development seems to be the only way to address global material inequalities. Too often in international law, it stands in as a proxy for ‘justice’, precluding the more open approach to justice which international law permits.
This paper will challenge the assumption that development is the appropriate way to speak of global inequalities. It will take stock of the international law of development since the inception of the contemporary legal order, and argue that we need to find new imaginative possibilities for sharing the earth.
These possibilities could be based in a concept of ‘the commons’, drawn from juristic rather than economic traditions. Arguably, a juristic approach could assist in the elaboration of a space that is neither utopian, nor utilitarian through a focus on the proper role of the international lawyer based in an ethics of the Global Commons.
Panelist: Abdul Paliwala, Professor, School of Law, University of Warwick
Title: Justice Indicatorology: A New Theatre for Justice?
Abstract: This paper interrogates the images of justice produced by justice indicators. These images then become truths about the nature of justice and injustice in jurisdictions, but what are these indicators constructing?
In 2008, a workshop of experts, academics, and practitioners on development work on justice noted that “the world today is swimming in indicators of justice, safety, and the rule of law.” The same workshop however noted disappointment that available indicators focused “so much on rules and activities and not on people and experiences.”1
Stephen Morse suggests that we may have a new science of indicatorology: “Indicators can be powerful and useful tools. They summarise complexity, not by accident, but by design, and speak with a quantitative and apparently objective authority which commands respect. But such power works both ways and can be used to support recommended action from all sorts of perspectives.
Much depends on who selects…, the ways in which they are ‘measured’ and presented. The power held by those wielding indicators is rarely acknowledged, and instead the processes of creation and use are presented in benign, technical and, of course, objective language.”
Thus underlying the construction of indicators and indicatorology may be forms of discipline and power implicated in what Mitchell considers terms ‘rule by experts’.2
The task of this paper will therefore be to analyse the sea of indicators of justice, and consider ways in which they construct these new forms of discipline and power. It will then suggest that more qualitative approaches to measuring justice which have been recently favoured by the World Bank and UNDP among others may not necessarily provide a solution as they ignore the wider realities of global injustice. That it is necessary to consider the interrogate the internal dynamics of indicatorology with the wider alternative frameworks of global (in)justice as indicated in the work of Pogge, Baxi, Santos and Sen.
6.4 Title: Courting the City: Law and the (Un)Making of Millennial Delhi
Panel Coordinator: Gautam Bhan
Chair: Dahlia Wahdan
Panel Abstract: From residents of the New Delhi to researchers on New Delhi, no matter where they start looking at the city, have inevitably found themselves, at one point or another willingly or unwillingly, at the doorstep of the city’s courthouses. In the past two decades, the Courts have emerged as a part not just of structural and urban change in the city, but of its everyday life, governance, politics and imagination. These four papers are located in this juridical emergence. Each taking on a different aspect of the court’s attempted (un)making of the city, they look at Public Interest Litigations and the court’s dramatic interventions in the cityscape on issues of unauthorized construction, at the deliberations over the fate of Delhi’s river Yamuna, at processes of urban planning as well associational life and movements of resistance to the court’s directives by city residents. Together, they represent an examination of millennial Delhi and its urban formations looking particularly at the arguably central role of law and the juridical. They do so in order both to raise a larger question of the role of law in the Indian city while remaining rooted in the particularities of the contexts and mechanisms of a legal urbanism as it has played out in the Capital.
Panelist: Diya Mehra, Research Fellow, Centre de Sciences Humaines, New Delhi and Doctoral Candidate, Department of Anthropology, University of Texas-Austin
Title: Campaigning Against its Eviction: Local Trade in New ‘World-Class’ Delhi
Abstract: In 2006, the Supreme Court of India ruled that between 50,000 to 500,000 small, medium and large retail businesses in Delhi would have to shut shop because they were illegally operating from their premises. They were in violation of ‘permitted land-use’; a technical term denoting that Delhi is legally zoned into separate and distinct commercial, industrial and residential zones. This, despite a lived geography wherein land-use’ is distinctly mixed, and where since economic liberalization, local retail businesses have flourished. They have morphed and expanded onto main streets, basements, upper floors and lower floors of neighborhoods – into spaces made available by energized local real estate markets seeking to gain from the ever increasing demand for more shopping and services in boomtown Delhi.
In the 13 months that followed the Supreme Court ruling, there was a massive campaign against the order involving tens of thousands of people to, and in, various degrees, organized under the banner of Delhi’s ‘trading’ community, comprising shopkeepers who found themselves potentially legally evicted from their establishments. The traders’, as they came to be called, insisted that they would not deal with the Court, making this tenet a central part of their campaign, seeking restitution instead from their elected representatives who they argued must put forth the will of the people. In this paper, I examine how different actors – the Court, the government, political parties and the traders’ – perceived and managed this standoff between justice and the law, both inside and outside the courtroom, in the realm of ‘public’ opinion and in the media. The paper is particularly concerned with how a compromise was eventually achieved through such negotiations, what this suggests about the efficacy of the sealing campaign and its impact on the PIL-RWA-media system of governance that had emerged in the city in the previous decade, and the shadowy role of the state and Central government in eventuating crises and compromise.
Panelist: Anuj Bhuwania Doctoral Candidate, Department of Anthropology, Columbia University
Title: Yeh Court Is Sheher Par Raj Karti Thi: ‘Public Interest Litigation’ in Delhi
Abstract: If the Indian city is becoming bourgeois at last, as Partha Chatterjee has put it, one key agent of this transformation has been the appellate court, especially the role it has assumed under the jurisdiction of ‘Public Interest Litigation’ (PIL). Nowhere in India has this phenomenon been as spectacular as Delhi. Right from the inception of PIL in the early 1980s, but especially with its massive intensification in the last decade, the two appellate courts in Delhi have made their presence felt in the everyday life of the city. Dramatic PIL-based interventions have included the closure of ‘hazardous industries’, the forced move to CNG for public transport, the demolition of scores of bastis and the sealing of commercial properties under newly invoked land use laws, each of which affected lakhs of people. PIL emerged as a media event par excellence with provocative pronouncements from the Bench invoking the image of urban collapse and projecting itself as the only agent that could ignore ‘populist pressures’. This paper will foreground the changing material practices of adjudication introduced by PIL, that enabled the city’s media and the ‘Residents Welfare Associations’(RWAs) to emerge as its ideal typical public.
To this end, the paper will concentrate on a mammoth PIL case, Kalyan Sanstha vs Union of India, which, for about two years between 2006 and 2008, subsumed all other cases against encroachment on public land and unauthorized colonies in Delhi. Literally hundreds of miscellaneous applications were attached to this case in the Delhi High Court. Large-scale slum demolitions resulted and the whole city became a site for the court's corrective intervention. This was a radically new kind of PIL, one no longer restricted to a single part of the city based on specific allegations by the petitioner. Rather, here the court practically took over the reins of urban governance, instituting its own appointees to oversee – and indeed dictate to – the municipal authorities. I will use the case of Kalyan Sanstha to discuss how PIL enables the courts, the media and civil society organizations to cross-mediate and transform the city.
Panelist: Awadhendra Sharan,Sarai-CSDS, New Delhi
Title: Delhi’s Yamuna
Abstract: This paper focuses on the multiple dimensions of the relationship between the city of Delhi and the river Yamuna, as mediated by the Supreme Court and Delhi High Court.
Delhi’s Yamuna is seriously polluted through organic and inorganic matter that are beyond its assimilative capacity - the ability of natural waters to absorb, dilute and disperse wastes – a concept first developed at the end of the 19thc as part of an ensemble of strategies about calculating risk. Indeed, it may even be classified as dead in the 22 km. that it traverses through the city, measured through standards of BOD levels etc. Its ‘state’, has implications for communities and livelihood practices both in the city and beyond it. And the imaginations of its future ‘states’ have implications for just what may be built/ occupied alongside it.
Pollution and death, and regeneration, not surprisingly, have invited different modes of thinking about the river and the city, marked by the intersection of two different conceptual fields, the science of pollution and theories of urban planning. At its most obvious, the Courts have addressed the issue of Yamuna’s pollution through the practice of relocation of slums, grounded in urban planning conceptions that began in the early years of 20thc. with the idea of separation of incompatible practices but which increasingly seek to banish ‘illegality’. On the other hand, Courts have intervened to regulate its pollution through the principle of ‘precaution’ and through engagement with ‘standards’. The first of these moves, we suggest, have invited considerable critical commentary; the latter, however, still needs far more elaboration. Even more, the intersection of these two modalities of reasoning, invite us to reflect on law and the city through a more complex set of arguments than those on offer in the literature either on ‘bourgeois environmentalism’ (Amita Baviskar) or on ‘public interest litigation’ (S. P. Sathe, 2002) or on the ‘appropriate domains’ of law and judiciary in dealing with urban and environmental issues (Subhankar Dam and Vivek Tewary, 2005). My paper is an attempt at developing one such argument.
Panelist: Gautam Bhan, Indian Institute for Human Settlements, New Delhi, and Doctoral Candidate, Department of City and Regional Planning, University of California-Berkeley
Title: Residual Publics and Improper Citizens: Reflections on Urban Planning in the Juridical City
Abstract: Indian cities have never looked at like their Master Plans. Yet often, discussions of urban informality and the “Unintended City,” to use Jai Sen’s evocative term, have remained at that: the inevitability of the “failure” of planning and its undoing by the informal/illegal. Informality has been seen as the limit of planning, and never as an inevitable part of it. This paper argues that it is not just that cities escape their plans, but how they do so in order to accommodate certain kinds of deviations from the plan at the expense of others that must the focus of sustained investigation within planning theory. Only then can we ask the next question: why are particular deviations from the plan permitted or even encouraged at moment one but condemned at moment two? In other words: if planning is not technical but a political process, how do prevailing urban politics influence both urban planning as well as the urbanization and the formation of our cities themselves? What does that imply for planning in the Indian city, and, arguably, in cities with entrenched spatial and economic inequality in general?
In early 2004, an estimated 35,000 households – colloquially called ‘Pushta’— on the banks of Delhi’s river Yamuna were destroyed in what was the first in a series of evictions. Between 2003-2007, an estimated 45,000 households were evicted in the city of Delhi, with less than 25% receiving any resettlement or compensation. These evictions were not initiated by the city’s planning agency, its municipal bodies or by either the city or central government. Each was the result of a verdict in an innovative judicial mechanism created, ironically, to protect the poor: the Public Interest Litigation (PIL). How has the eviction of nearly half a million urban residents and national citizens been recast, justified and legally endorsed in the name of “public interest”? How has this translation been made possible juridically and politically? What do repeated evictions tell us contemporary urban politics and the citizenship of the poor in particular? This paper seeks to answer these questions by looking at original writ petitions filed by a range of actors in the Delhi High Court and the Supreme Court of India that led to the eviction of poor informal settlements. It analyses the dictum and texts to see the logics by which the judges translated and interpreted “public interest” to accommodate the eviction of the city’s poor. It also looks closely at the Court’s vision, interpretation and use of the “Plan” and “Planning.” It offers initial hypotheses as to how these decisions and evictions both inform and are deeply influenced by contemporary political, economic and aesthetic transformations in Delhi. It then suggests that locating the processes of urban planning within these transformations is a necessary first step for any engagement between the governance and formation of Indian cities.
6.5 Title: Theatres of Justice
Chair: Vibodh Parathasarthy
Panelist: Deva Prasad, LLM candidate, National Law School of India University, Bangalore
Title: Media Induced Notion of Justice Delivery System in India: Tracing the Effect of “Trial by Media” on Public Opinion and Judicial Outcome
Abstract: Opiniated and biased coverage of accused and/or victims of sub-judice cases by the Indian media have increased in significant proportion, leading to a trend referred to as trial by media. Basic characteristic aspect of trial by media is one sided sensationalized coverage of a high-profile (normally criminal) cases; at times even passing opinion as to whether the accused is guilty or not. Though this trend is of recent origin in India, it has already influenced a large section of society by way of social constructionism. This paper tries to look at the impact trial by media has caused on Indian society and how it has contributed in the formulation of public opinion on the notion of justice delivery system. Further, an attempt is made in enquiring into the effect of trial by media on judges and judicial outcome.
Initially the paper probes into the legal framework and the socio-economic environment in which media works in India. Analysis of the law commission’s report on trial by media and the critiques of tablodization of law form a part of this paper. Kind of cases zeroed upon and stereotypes created by media also contributes to the formulation of public opinion, rather towards public outcry. The media scrutiny triggers the debate of freedom of press and right to fair trial, which points us to effect of this entire trend of media trial on judicial outcome.
Instances of media trials in recent past, such as Jessica Lal case, Priyadarshani Matto case, Aarushi case, Kasab case etc. are analysed and the effect of these cases on the notion of justice in the mind of the public and their response are noted. Tracing the impact of media’s views on the judicial outcome of these cases and whether it contributes to better justice delivery system is also attempted.
Panelist: Debasis Poddar, Assistant Professor of Law, MATS University, Raipur
Title: Mass Media and (Global) Theatre of Climate Justice: A Critical Appreciation of International Jurisprudence
Abstract: Climate change is a classic illustration of confluence among media, science and politics all over the world. In particular, the way media preaches contrarian news and views over catastrophic climate change and its immediacy evokes global public opinion driven by hyperbolic apprehension out of pseudo scientific journalism so often than not which provides cynic observation over pace of climate change and which is in contravention of the version of Intergovernmental Panel on Climate Change working on behalf of United Nations Framework Convention on Climate Change.
While international law strives to attain an equitable jurisprudence toward global climate justice, worldwide media coverage over such contentious matter spreads hue and cry so much so that all words of climate wisdom finds their place under the carpet to suffer stampede by such a semi-informed public opinion. International civil society movement has added the spark to fuel of apprehension that during the Conference of Parties 15 at Copenhagen, an expression was spread by media that final bell for duration of human habitat on the Earth was heard by all but the statespersons.
The author belongs to neither side but explores role of mass media toward construction of international jurisprudence and thereby put its own mark in processing supranational law and governmentality- whether and how far climate change being thereby slowed down is a point apart. The author also explores (f)utility of such a media-raj in the absence of hitherto introduced international judicial process to this end and thereby addresses role of media trial in general and in the particular context of climate change regime.