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Religion and Constitutionalism in India

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7.1 Religion and Constitutionalism in India

Chair: Arvind Narrain

Panelist: Abhik Majumdar, Assistant Professor, National Law University, Orissa (NLUO)

Title: Privileging Communal Identities and Marginalising the “Other”: Constitutionalism in India and Cow Slaughter 

Abstract: This paper explores an unexpected by-product of constitutionalism, where constitutional norms are interpreted to subvert the very ethos of the parent constitution. One example is the manner in the overtly secular Indian constitution has been harnessed to justify banning cow slaughter, a long-standing demand of the majoritarian Hindu community. 

From the socio-political perspective, the issue bears multiple layers. In the medieval era, caste Hindus harnessed the ‘sacred cow’ concept to both characterise and demonise the ‘other’. Even today, allegations of cow slaughter constitute a popular incitement to religious riots. Some read into this phenomenon another kind of violence, which involves denying to  the socially and economically marginalised (even Hindus at the lowest rungs of the caste hierarchy) an inexpensive and accessible source of nutrition. It is against this backdrop that the legal aspects of the issue need to be examined. 

During the drafting of the Indian Constitution, conservative Hindu representatives’ demands for incorporating a constitutional ban on cow slaughter was sought to be balanced with the overtly secular nature of the document. Ultimately, a provision of sorts was incorporated in Article 48 and justified on the basis of protecting agricultural interests. Not only was this provision was non-enforceable in character, but so was its ambit was tightly restricted to certain kinds of cattle only, such as milch and draught animals. 

Early litigation on the issue was marked by a certain judicial restraint. When legislatures sought to increase the ambit of such bans, our courts restricted them in accordance with constitutional provisions. However, in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005), the Supreme Court upheld a law of the Gujarat legislature that prohibited the slaughter of all forms cattle, a ban extending well beyond the limits of Article 48. Subsequently, several states including Madhya Pradesh, Chhattisgarh and recently Karnataka, have enacted similarly comprehensive legislation. 

The proposed paper addresses the processes through which ‘the law’ has served to curtail the ‘space’ given to minorities qua minorities. Given that cow slaughter continues to be an extremely volatile issue, this denial of ‘space’ inevitably bestows a measure of legitimacy to the pretexts behind religious riots. Moreover, it also provides a justification for denying the marginalised their nutrition rights.

Panelist: Prof. Gilles Tarabout, CNRS senior research fellow in social anthropology, Paris, Director of the Research Centre in Ethnology and Comparative Sociology, CNRS-University Paris West, Codirector of the ANR programme “Justice and Governance in Contemporary India and South Asia”

Title: Religion and the Courts: The Secular Management of Gods’ Affairs in Some Kerala Cases

Abstract: While a KHC full bench underlined in 1978 that secularism “eliminates God from the matters of the State”, the Courts actually have to arbitrate much religious litigation. This arises partly as a specific legacy from the colonial period, when on one hand Gods were endowed with a juristic personality, and on the other hand Government departments were constituted for the direct supervision and management of major temples in a State. It is also the consequence of the general need to decide about inheritance or land claims, etc., even when they concern religious institutions and entail ritual stakes. The presentation will take up a few cases concerning Kerala temples that came before the KHC and the SC, in order to show to what degree of ritual details the courts may feel compelled to go. Even though some judges may dwell at length on theological and ritual interpretations, the very fact that the debate shifts to the legal sphere may arguably be taken as a step - if paradoxical- in the evolution towards the secular goal. 

Third Panelist: tba

7.2 Title: Speaking Evidence, Making Secrets
Panel Coordinator: Pratiksha Baxi
Chair: Ujjwal Kumar Singh
Panel Abstract:

This panel highlights the construction of evidence at different sites of law and life. How is evidence constructed? How do evidentiary categories circulate? How does evidence constitute the public secrets of law? How may one read evidence ethnographically? What kinds of potentialities are conserved in the law of evidence as it is constructed by policemen, lawyers, judges or scientists? In other words, the panel collates how evidence is produced, circulated and marshalled to produce a specific notion of testimony.

Panelist: Mayur Suresh, practicing lawyer and independent researcher in Delhi

Title: Organising Terror: Banning of the Students Islamic Movement of India 

Abstract: The Government of India has recently banned the Indian Mujahideen (IM) an organisation which the Indian state accuses of planting bombs across the country. However, the IM did not appear exist in the state's eye prior to the accusations against it. This circularity leads us to ask the question as to whether an association like the IM is produced solely in order to be banned.

My paper will, however, examine the banning of the Students' Islamic Movement of India (SIMI).  I hope to look at how the state produces and mobilizes knowledge for creating the category of the unlawful association and will open out questions of how and in what manner this category of the terrorist, unlawful association comes to be produced. For example, what kind of evidence is mobilised against SIMI? What are the processes by which an organisation comes to be determined as an 'unlawful association'? In doing so, I hope to raise crucial questions regarding the relationship between the everyday practices of criminal investigation and the judicial determination what constitutes an unlawful association. 

Panelist: Ruchi Chaturvedi, political and legal anthropologist, Hunter College, City University of New York

Title: “Not Even a Faint Legal Idea about What Transpired”: Political Agency, Violence and the Criminal Courts  

Abstract: The title of this paper echoes the frustrated words of a trial court judge in Kannur district, Kerala called upon to adjudicate a murder case in 1994. As his statement indicates, the judge was unable to fix responsibility for the said murder; furthermore, the witnesses’ testimonies left him confused and perplexed about how it transpired. The murder case was one of approximately five hundred cases of political violence that have been tried in Kannur district courts since the late 1970s. Here members of various political parties have been charged for crimes ranging from criminal intimidation, arson, attempt to murder and murder. Most protagonists of these cases have been members of the Communist Party of India (Marxist) and the RSS-BJP combine. And nearly 80 percent of these accused have been acquitted, if only at the end of trials that lasted for three to four years.  

In this paper I describe how the contest between the Marxist Left and the Hindu Right in Kerala has been fought not only on the streets through violence, but also in the courts via supporters and sympathizers who appear as witnesses. The testimonies of such witnesses have become a mode of asserting their political agency deployed to facilitate convictions of opponents and acquittals for one’s own. However, these testimonies have rarely survived judicial scrutiny. In case after case, they have produced confusion about the violent event in question, and acquittals for the accused. What does such ambiguity and the resulting acquittals tell us about the nature of politics and violence that members of the Marxist Left and Hindu Right have enacted for more than three decades? And, in turn, how have the shifting identities of the workers of the two groups – as accused but innocent, apparently criminal but not, fearful [about the outcome of trials] but also intrepid – conditioned their politics and their political agency. These are the questions central to this paper.  

Panelist: Devika Bordia, Post-doctoral fellow with the Programme on Governance and Justice in India at CNRS, Paris

Title: The Spirit of Legal Procedure: Documents, Court Practices and the Production of Truths about Tribal Life in Rajasthan 

Abstract: In the Bhil and Girassia tribal regions of Rajasthan, practices of creating and interpreting evidence contained in documents of a case file like the doctor’s report and maps of crime scenes are mediated by histories of how tribals have been racially and civilizationally categorized as different from non-tribals. These documents construct truths about socialitiy, dispositions, mental abilities and bodies of tribals and these truths form a “spirit” of tribal life. This spirit also informs and motivates practices at the police station and district courts, and attitudes through which crime among tribals and criminal cases are addressed. According to police officers, lawyers and magistrates, tribal life is incommensurable with the ideals of state law and Bhils are more effectively governed by panchayat justice or custom. Legal officers explain that tribals are incapable of understanding a particular notion of proper legal procedure. Therefore they claim that irregular procedures at the court such as negotiations with tribal leaders, bribes, underhand deals and procuring false witnesses must be the norm. In this paper, I juxtapose assumptions about tribal life that are contained in evidence produced in a criminal case file, explanations and interpretations of legal procedure by police officers, lawyers and magistrates, and everyday practices at district courts. The paper draws on a conception of legal pluralism that examines how the articulation and mobilization of state law or non-state law in everyday legal practice is based on hierarchies that are contained in different conceptions of people and place and relationships of power between different actors.

Panelist: Pratiksha Baxi, Assistant Professor at the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi

 Title: Pyar Kiya to Darna Kya: Notes on Law, Love and Violence 

Abstract: The reference here is to a popular Hindi song from a classic Hindi film “Mughale Azam” wherein a defiant Anarkali in a performance in the princely court sings and dances to a song (composed by Naushad) to the lyrics, ‘pyar kiya to darna kya, pyar kiya hai chori to nahi ki, chup chup ke ahe bharna kya’ (why live in fear when one has loved, one has loved not stolen, why should one sigh in secret)? This song dramatises love as resistance to the sovereign. Love is without guilt. It is posed in radical opposition to crime. Love is not theft. Love is not illicit. It is love that is all that law cannot be (see Raes 1998). The story of custodial violence narrated in this paper based on a case study of a rape trial in a district court in Ahmedabad (1996-98), is a revelation of the incommensurality between the legal subject’s experience and the way she is named in law as a victim, witness and accused in the crime of and for planning to kidnap, abduct, and rape her own body. The police interpret the law to suggest that women can be constructed as abetting and committing rape on their bodies, a legal fiction which does not exist in women’s experience. This is a stunning illustration of what Lyotard has called “differend”. I argue that as the worst form of transgression in caste sociality, the minor upper caste woman’s body enters the law as “a scene of crime” where love can only be named as rape. Here, the social imagination of a dalit man’s love for an upper caste woman can only be exist in a mimetic relationship with upper caste imagination to substitute love by rape. For Goodrich, then, it is the ‘negation of eros and of love to a space outside of serious social speech or law’ which concerns social justice today. 

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