ALF JUDICIAL 90s Workshop

The Alternative Law Forum and Christ College of Law, Bangalore
Invite you to a Workshop on*The Judicial Nineties*May 10th & 11th, 2008 at the Christ College of Law, Christ CollegeCampus, Hosur Road, Bangalore 560029There has been a sense that the judiciary has increasingly narrowed thefield on issues of socio economic rights and distributive justice.Often, this is referred to as the Court's 'conservative turn', but thereis little that is said beyond this, except to imply its direct linkageto the post-liberalization period in Indian history. One of theimportant tasks of the contemporary is to provide an account of thisshift within a larger political economy narrative that seeks to locatethe precise manners in which these changes are taking place via theemergence of a judicial sovereignty that does not merely adjudicate anylonger but actively produces the context and conditions for afree-market friendly environment. Ranging from questions ofrehabilitation to the violent reordering of urban space, the judiciaryhas played an active role in redefining ideas of access and entitlement.While the eighties were marked by the emergence of 'social actionlitigation' that sought to radically redefine ideas of entitlement andequality, by the mid-nineties, most social movements who relied on usingthe courts as spaces of social justice were repeatedly disappointed bythe complicity of the courts with the neo liberal project.All the extremely violent developments and transitions that are takingplace in this period are unfolding very much within the law, backed bynew regimes of property, and often in the name of the law. Thus theviolent reordering of cities in India has seen encroachers removed torestore the land to the legal owners, and water privatized after lawfulagreements are entered into between the government and private parties.
The Court has proactively determined socio-economic policy and in doingso has re-written the idea of the social.In older formulations like Partha Chatterjee's idea of the politicalthere was an acknowledgement of the porous spaces between thelegal/illegal that allowed people to participate in democratic politics.This is effectively being destroyed by the judiciary and along with itthe compact of political society. There is a newfound romance of theidea of the legal and with it, new forms of illegality andsubjectivities that are being produced by the Court. In this space thereis very little room for the kind of negotiations that characterized theways in which large sections of the population accessed basic services.Perhaps talking of the complicity of the courts with the neo liberalproject is too generous a reading, and instead we should say that thelaw and judiciary are the neo liberal project. If this is so then isthere a need to re-evaluate the relationship between social movementsand the judicial process – do we now abandon the site of legal intervention?Registration: If you are interested in attending the Workshop, please send an email to Aarti Mundkur at aarti@altlawforum.

Oishik Sircar

Oishik Sircar is a human rights lawyer and independent researcher from India and presently Graduate Scholar in Women's Rights at the Faculty of Law, University of Toronto. He has worked as a campaigner with Amnesty International and has taught at the Women's Studies Centre, University of Pune and Research Centre for Women's Studies, SNDT Women's University, Mumbai. He was awarded the 2004 WISCOMP Scholar of Peace Fellowship and is a co-recipient of the 2008 CRY National Child Rights Fellowship. He works and writes in the areas of postcolonial feminist legal theory, sexual rights, migration studies and cultures of human rights.

Sensuous Similarity

Copyright v. Right to Copy
Indian Express, 16th April 2008

Lawrence Liang


It may be difficult not to be enthusiastic about the recent Rs 2 crore
settlement between the Roshans and composer Ram Sampath, who alleged
that they had violated his copyright by using his song in their film
Krazzy 4. It has all the trappings of a fairy tale suit in which the
small creator wins against the might of the entertainment giants. It
perhaps even reflects the original intent of copyright, which has
otherwise served mainly the interests of large media corporations
against small artists and creators. A number of commentators have
hailed the suit and the settlement as a "landmark decision" that
serves as an important precedent for future cases. Ram Sampath has
himself gone on record saying that everyone in the creative field
should get their hands on the 1957 Indian Copyright Act.

Encouraged by Ram Sampath's success, we can therefore expect many more
copyright claims in the field of music and creativity. While Ram
Sampath's case may have been a clear case of unfair use, I would argue
that we should be a little cautious in celebrating it as a landmark
decision or as a positive step as far as creativity is concerned. The
language of the case and the reportage around it rely very heavily on
the language of theft, property and damages for infringement of
copyright and plagiarism in music. This rather hasty leap of faith to
stricter enforcement of music copyright does not seem to find too much
support in the history of music itself. While there was surely a
violation of propriety in the Ram Sampath case, the important question
that emerges is the impact of thinking of creativity only in terms of
property. The history of copying, appropriation and plagiarism is in
fact central to the history of various forms of cultural production,
including music. We should therefore be a little cautious when we
celebrate this case for the quick remedy it provided to an act of
copying.

The act of copying has been central to the ways in which culture has
flowed through various parts of the world, transcending the
limitations set by space and time. Thus a Polish folk song, "Szla
dzieweczka do gajeczka", becomes a part of Indian popular
consciousness through its adaptation as Salil Chaudhury's "Dil Tadap
Tadap Ke" from Madhumati. Secondly, the creation of music has always
relied on adaptations, influences and inspirations, whether conscious
or unconscious. It would be unfortunate if as a result of aggressive
copyright suits, we reach a situation like the United States where
even subconscious copying is held to be infringement. In a case
brought by a band, The Chiffons, against former Beatle George
Harrison, the court held that Harrison's "My Sweet Lord" was in
infringement of The Chiffons' "He's so fine", even though the judge
believed that Harrison did not intentionally copy the song and had
only been inspired by it subconsciously.

The history of creativity has been marked with a certain generosity in
drawing the line between inspiration and mala fide copying, a line
better guarded by the ethics of aesthetic practices than by strict
penal laws of property. Music scholars have argued, for instance, that
hip-hop, which relies on sampling existing tunes, has become less
exciting as a result of the chilling effect that copyright has had on
the ability to sample. Music has always posed a challenge to
traditional ideas of copyright, and while it is well known that
copyright merely protects ideas and not expressions, music complicates
the idea-expression distinction further. Noted copyright scholar Siva
Vaidyanathan asks: Is the six-string note of "Happy Birthday To You"
an idea or an expression? Would playing the same note at different
tempos constitute a new expression of the same idea? Would playing it
differently on a different key constitute a new expression of the same
idea?

We need to recognise that different forms of cultural creations have a
different relation to the act of copying. Rajesh Mehar in his history
of Indian rock music has shown us that the act of copying was central
to the way people learnt music, and it may be a better idea to rethink
the one-size-fits-all approach that informs copyright law.

At different points in her life, Helen Keller was accused of
plagiarism. What people ignored is that the way Helen Keller learnt
language and read was very different from an ordinary reader's, and
she learnt not from sound and sight but from touch.

In her defence she said, "Sometimes I think I ought to stop writing
altogether, since I cannot tell surely which of my ideas are borrowed
feathers, except for those which I gather from books in raised print."

In our enthusiasm to protect the creator and ensure that he gets his
just rewards, lets not forget that the sense of touch is not limited to
the hand, but extends to our eyes and ears. It is only natural that when
we create something, it will be influenced by things we have read, heard
or seen, that have touched us, even if they are not our property. Walter
Benjamin describes this form of mimicry as a form of learning as a
‘sensuous similarity’, a right to copy, which should be as jealously
guarded as copyright.

Vasuki Nesiah

Vasuki Nesiah is Director of International Affairs and Lecturer in International Relations at Brown University. Prior to joining Brown, Nesiah was Senior Associate and Head of the Gender Program at the International Center for Transitional Justice, an international organization engaged with human rights law and policy. Nesiah has also been Adjunct Associate Professor at the School of International and Public Affairs (SIPA) at Columbia University for the last three years where she has been teaching on issues related to identity, rights and conflict. Nesiah completed her doctorate in public international law at Harvard Law School. She has published and lectured in international and comparative law, feminist theory, law and development, postcolonial studies, constitutionalism, and governance in plural societies. She is currently working on a manuscript re. the post-conflict industry.

Anitha Abraham

Anitha Abraham is a lawyer based in Delhi

Ponni Arasu

Ponni Arasu has a masters in History from Jawaharlal Nehru University. She is involved in research and activism around issues of gender and sexuality and more recently the law. She is currently pursuing her LLB in bangalore and works with the Alternative Law Forum, Bangalore

Mohammed Ridwanul Hoque

Mohammed Ridwanul Hoque, is Associate Professor, Department of Law, University of Chittagong, Bangladesh. Dr Hoque's doctoral research [2007] at theUniversity of London (School of Oriental and African Studies) was entitled "Judicial activism as a golden mean: A critical study ofevolving activist jurisprudence with particular reference toBangladesh"; and current research interests include Public law;comparative constitutional theory, Islamic family law, corporate lawand corporate governance. A list of publications is provided below.

PUBLICATIONS

Articles

2007a. “Criminal law and the Constitution: The relationship revisited”, Special Issue
(Nov 2007), Bangladesh Journal of Law, pp. 45-78.

2007b. “Judicial activism and Islamic family law: A socio-legal evaluation of recent trends in Bangladesh”, Vol. 14 (2), Islamic Law and Society, pp. 204-39. (Co-authored).2006a. “Taking justice seriously: Judicial public interest and constitutional activism in Bangladesh”, Vol. 15 (4) Contemporary South Asia, pp. 399-422.

2006b. “The judicial invocation of international human rights law in Bangladesh:
Questing a better approach”, Vol. 46 (2) Indian Journal of International Law,
pp. 151-84. (Co-authored).
2003. “Suo motu jurisdiction as a tool of activist judging: A survey of relevant issues
and constructing a sensible defence”, Vol. VIII Chittagong University Journal
of Law, pp. 1-31.
2000. “Corporate governance: Mapping the territory for Bangladesh’s visit”, Vol. V
Chittagong University Journal of Law, pp. 35-71.
1999a. “Jurisdictional problems of the International Court of Justice: Towards an
alternative framework”, Vol. 3 (1) [June 1999], Bangladesh Journal of
Law, pp. 49-89.
1999b. “Right to post-divorce maintenance in Muslim law: The Shamsun Nahar
revisited”, Vol. IV Chittagong University Journal of Law, pp. 1-32. (Co-authored).
1998. “Province of the law of contempt of court undetermined”, Vol. III Chittagong
University Journal of Law, pp. 181-203.

Shorter Articles (selected)
2007 “Problems of judicial affairs in Bangladesh”, followed by “Bangladesh
strengthens independent judiciary”, Vols. 11 (Nov. 2007); 12 (Dec. 2007), D + C Development and Cooperation, respectively at p. 426, and p. 447.
2006 “Judicial stance against polygamy: Some reflections on the case of Dilruba
Aktar 55 DLR 568”, (2006) 58 Dhaka Law Report, Journal section, pp. 51-54.
2005 “Recent decisions of the International Court: Saving International Law from its demise?”, Issue 9, [2004-5] Law Vision, pp. 14-19, Chittagong University Faculty of Law.
2005 “On coup d' etat, constitutionalism, and the need to break the subtle bondage with alien legal thought: A reply to Omar and Hossain”, Law & Our Rights, The Daily Star, Dhaka, 29 October 2005 available at: http://www.thedailystar.net/law/2005/10/05/alter.htm
2004 “On freedom of religion and the plight of Ahmadiyas”, Law & Our Rights, The Daily Star, Dhaka, 21 March 2004, available at: http://www.thedailystar.net/law/2004/03/03/index.htm
2002 “State liability for judicial mistakes: A new avenue for judicial accountability or a mere dream?”, Issue 8 [December 2002] Law Vision, Chittagong University Faculty of Law, 8-13.
2000 “Court declares unauthorised fatwa illegal”, Issue 6 [December 2000] Law Vision, Chittagong University Faculty of Law, 12-13.

Translation (English to Bengali)
“Torture in Bangladesh: 1971-2004”, a report by REDRESS, London.

Book Reviews

2008 Review of Hans Dembowski, Taking the State to Court: Public Interest
Litigation and the Public Sphere in Metropolitan India. www.asienhaus.de/taking-state-to-court. Online edition of a controversial book originally published by OUP in 2001, D+C Development and Cooperation, forthcoming.
2008 Review of Joseph M. Jacob, Civil justice in the age of human rights (Aldershot: Ashgate, 2007), Journal of Immigration, Asylum and Nationality Law, vol. 22 (1): 91-92.
2007 Review of Usha Jumani, Empowering Society: An analysis of business, government and social development approaches to empowerment (New Delhi: Foundations, 2006), Journal of South Asian Development, forthcoming.
2006 Review of Marc Hertogh and Simon Halliday (eds.), Judicial review and
bureaucratic Impact: International and interdisciplinary perspectives (Cambridge: Cambridge University Press, 2004), and of Simon Halliday, Judicial review and compliance with administrative law (Cambridge: Cambridge University Press, 2004), Cambridge Law Journal, Vol. 65 (1): 231-34.
2005a Review of Salman M A Salman and Kishor Uperty, Conflict and cooperation on South Asia’s international rivers: A legal perspective (London et al: Kluwer Law International, 2002), South Asia Research, Vol. 25 (2): 230-32.

2005 Review of Jona Razzaque, Public interest environmental litigation in India, Pakistan and Bangladesh (The Hague et al: Kluwer Law International, 2004), South Asia Research, Vol. 25 (1): 114-15.

Gauri Nanayakkara

Gauri Nanayakkara, State Counsel, Attorney General's Department, Sri Lanka is a doctoral researcher at the University of Kent, UK. She is researching in the area of Copyright Law focusing on the Performers' Rights in South Asia for her doctorate.