Law and Social Sciences Research Network: 7/3/09

7/3/09

LASSnet celebrates a historic judgment

The law benders
Vinay Sitapati

Posted online: Friday , Jul 03, 2009 at 0324 hrs, http://www.indianexpress.com/news/the-law-benders/484408/
New Delhi : You seem to have gathered much evidence that homosexuality is not a disease,” Chief Justice A P Shah told the petitioners arguing against Section 377 in court, “unlike the (other side’s) lawyers, who have argued that ‘homosexuality is a matter of fun’.” The asymmetry in legal arsenal is no coincidence. The petitioners, Naz Foundation along with ‘Voices against 377’, had an army of young lawyers to wade through India’s Byzantine case law history, refer to parallels across the world and produce affidavit after affidavit. And they all did it for free. The lead lawyer for ‘Voices against 377’ was Shyam Divan. Helping him were a host of lawyers armed with impressive degrees. Shrimoyee Ghosh, Jawahar Raja, Arvind Narain, Mayur Suresh and Vasuman Khandelwal are all young lawyers from National Law School, Bangalore.
Naz Foundation, the petitioner, was represented by Anand Grover from law firm Lawyer’s Collective. His arguments focused on linking health concerns of homosexuals to their ‘right to privacy’, in turn linked to their right to dignity. Assisting him were Trideep Pais, and Tripti Tandon — involved with the case since the beginning. Shivangi Rai and Mehak Sethi, both from India’s top law schools, rejected the lure of high paying corporate jobs to fight the case. “We are not just activists,” Rai says. “So we use our legal skills to make a persuasive case in court, not just shrill rhetoric.”
Why did they fight for free? For Mayur, it was his own gay identity, while for others like Vasuman it was the need to accord dignity to homosexuals.

On freedom’s avenue

Gautam Bhan
Posted online: Friday , Jul 03, 2009 at 0427 hrs
http://www.indianexpress.com/news/on-freedoms-avenue/484509/
The historic judgment reading down Section 377 in the Delhi high court on Thursday chose its words very carefully. It turned for help to an older moment, a moment of origin. Citing the constitutional debates of 1946, it reminded us of another India. An India that was being imagined just as it was coming to freedom. Nehru urged, in those debates, that we see the Constitution in its spirit rather than in any narrow legal wording. On Thursday, Judges Shah and Muralidhar sought to unearth that spirit. “If there is one constitutional tenet,” they argued, “that can be said to be the underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations.” A few lines later, they argued further: “Indian constitutional law does not permit criminal law to be held captive by popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is the antitheses of equality and that it is the recognition of equality which will foster the dignity of every individual.”
Court one, item one on the Delhi high court’s cause list. Ten thirty in the morning on the 2nd of July. A high court pass secured by a few dozen activists each of whom was remembering moments from the last decade of fighting Sec 377. It is these simple words and an electronic pass receipt that a movement lasting decades and a legal battle lasting eight years came down to. In the end, it was enough. When the judgment was read, you could feel the emotion in the room. Our tears flowed not just because we had “won”. They came for the judgment that had set us free. This judgment is a judgment about dignity. It is about an India that Nehru imagined — an India that would open its arms and embrace all who lived within it. It is about the words equality, dignity and rights finding roots in the lives of millions of queer Indians who today can feel their feet on the ground of their own country.
This judgment is a return to Ambedkar. The judges reminded us of the Ambedkar who so passionately fought for the constitution of his imagination. In Ambedkar’s India, he wrote fervently that the courts of law of our land must be ruled by a “constitutional morality” and not a public morality. State interest, he argued, cannot be governed by public morality but by the spirit of the Constitution. In the days to come, as morality debates will no doubt flood our media and public spaces, we must keep this other morality equally in mind. A morality that we share as citizens, not just as individuals.
This judgment is about equality. Citing Article 15 of our Constitution, the judges ruled that “sex” as commonly used in non-discrimination statutes must also include “sexual orientation”. Non-discrimination legislation based on gender/ sex now can be read to include sexual orientation. Reading Article 15 into the judgment, the judges have reminded us decriminalising queer people also means simultaneously treating them with equal respect in jobs, in hospitals, in our homes and in our public places.
Yet how do we read this judgment not just as queer people but also as Indians no matter our sexuality, gender, religion, caste, language or region? Movements across this country have and continue to struggle for their rights. Frustrations with the government and the “system” are commonplace. Many have argued that change is not possible in India and even less in the new India, which in its shine has separated from the Bharat that so many inhabit. This judgment is a renewal of faith in the system so many of us — this writer included — find so easy to almost lose faith in. It is a reminder that the Constitution is still alive, and that movements and fights sometimes end in days of victory. All Indians must celebrate that — it is not just queer rights that were protected today, but all the rights of all Indians.
We will remember tomorrow to be more cautious. The queer movement has long said that the fight for the dignity of queer people will not be won just in the courtroom. Our fights are in the spaces where homophobia impacts people’s lives: families, clinics, police stations, offices and the streets of our cities. The law will not change these spaces overnight. Our fights are far from over. This judgment, however, has untied our hands. Our debates now to change public opinion will be played on level playing fields amongst citizens as equals. We have the words of this judgment and the chance to make them come alive outside the courtroom.
The biggest change, however, will be within the hearts and minds of queer people. The process of accepting ourselves, of not being ashamed, of believing in our right to have rights is a long and lonely one. The process of thinking of ourselves as equal citizens takes even longer. This judgment will change what a young queer woman sees when she’s in the mirror. There are no words to explain what that means or how valuable it is.
For the government of India and its ministers, who recently have spoken about Section 377, they should read this judgment closely as they come to their “consensus”. They should ask themselves which of the tenets of this judgment they wish to consider and reconsider. They should remember that Ambedkar and Nehru imagined statesmen and women in their assemblies. The day has come for them to return, along with the rest of us, to that imagined assembly.
Inclusiveness, values, tolerance, constitutional morality, equality. In the older imagination of India, these words would not be just about queer people or homosexuality. Today, these have taken the first step to become Indian words again. The judges have reminded us that these are the ingrained values of Indian culture that so many are trying to “defend”. This judgment should be seen by all of us, gay or straight, no matter what we think of sexuality and homosexuality, as a victory for a secular, democratic, constitutional and free India. We should all be proud. Today, queer people are finally, proudly, happily also just everyday Indians — free, equal, and breathing deeply the air of a day that feels like no other.
Today, queer people are fellow citizens. Today, queer people will finally feel the ground below their feet.
The writer works on urban policy express@expressindia.com

Find the judgment at:
http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf

THE IDEA OF LASSnet

The Centre for the Study of Law and Governance at Jawaharlal Nehru University, New Delhi initiated the establishment of the "Law and Social Sciences Research Network" in order to bring together scholars, lawyers and doctoral researchers engaged in research and teaching of issues of law across social sciences in contemporary South Asian contexts. We believed that the critical work that has emerged from different institutional locations and theoretical frameworks has yet to find a common forum which can act as a medium for exchange of ideas, work, materials, pedagogies and aspirations for the way law, regulation and society as objects of research as well as sites of praxis have been envisaged variously. The attempt of this network is to create a forum for academics, researchers, and lawyers to interact with each other to find productive conversations and enhance these into future directions that law and social sciences scholarship in India might mature into.

LASSnet seeks to organise a network conference every 2-3 years to collaborate on specific themes with institutions in South Asia. So far we have organised 4 network conferences in Delhi and Pune in India and one conference in Sri Lanka. Here at LASSnet, we hope to take the idea of publishing a series of volumes on these themes seriously as well as initiating reading groups/work in progress meetings. We also wish to disseminate teaching materials, design syllabi and share pedagogic experiences.

Since 2021, LASSnet anchored at CSLG, JNU, in collaboration with the Centre for Asian Legal Studies (CALS) SOAS, and Centre for Law and Humanities, JGLS has been organizing a regular webinar series involving book discussions, panel discussions and guest lectures. We hope to continue our interactions and engagements as we work to bring together ideas and activities for the future.

We would be delighted if you were to send us names and emails of those you think might want to join this network. We hope that people will also share their work, ideas or relevant announcements, if any, on the network. If you would like to be part of LASSnet, please send your contact details and short bio to lassnet@gmail.com

Watch this space for more!

LAW AND SOCIAL SCIENCES IN SOUTH ASIA

Inaugural Conference

was held on

January 9-11, 2009

at

Centre for the Study of Law and Governance,

Jawaharlal Nehru University

New Delhi, India

We began by noting that law is conventionally taught and practiced, in South Asia (though not only there) by treating it as an autonomous and self-sufficient phenomenon. The doctrinal researchers regard law as autonomous and believe it is capable of giving an account of itself. The law also tends to be narrowly conceived as what judges, legislators, or the police ‘do’ – ignoring the diffuse structures of power and governance, and practices of regulation, normalisation, and biopolitics that penetrate bodies and condition behaviour.

The notion that law is autonomous (legal formalism or legal positivism) has been subjected to sustained challenge over many decades by scholars who draw on social science methodologies, as well as by the law and literature movement, and by activists who constantly challenge the positivist image of law. Broadly conceived, these scholars seek to explain law as a social, anthropological, historical, and economic artefact which should be understood and studied as such. This implies also that we trace the genealogies of categories which inform law, and the images and imaginings of law in contemporary social science theory. All this suggests that the law is not confined to state law or the appellate judiciary. Not only it remains a fact that state law remains inherently plural; it interacts with plural regimes of customariness. We wish to understand how forms of state and non-state law mutually constitute each other and how they relate to different structures of power and techniques of violence.

Methods and techniques drawn from the social sciences are central to understanding the market, legal structures, regulation and statecraft in the era of globalisation. In mapping the field of law and social sciences, we interrogate the place of law and economics in the larger context of the scripting of the transformation of legal and regulatory regimes. We recognise that while regulation has emerged as a field in conversation with the discipline of economics, there is very little work which details the intersection of regulation with law. Moreover, the conversations between regulators and lawyers do not seem to be informed by social science frameworks and methodologies. The Law and Social Sciences Network (LASS) reflects the interests of those scholars who wish to engage with interdisciplinary research on the transformation of legal and regulatory regimes from varying empirical and theoretical viewpoints.

LASS recognises that much scholarship informed by the social sciences in South Asia has been engaged with social movements and forms of activism which have challenged law’s power to deny, censor, hurt, humiliate and kill. The engagement with this politics of hurt has led to many passionate debates about the place of law in our work and in our politics. Yet in South Asia, the research, teaching and practice of law that draws on the social sciences has been relegated to the margins, and radical activist engagement with law devalued by official discourses of judicial reform. LASS invites reflexive engagements from scholars and activists about the relationship between law and social movements.

The Law and Social Sciences Network (LASS) was constituted to map the field of Law and Social Sciences in South Asia. Its objective is to bring together academics, lawyers and researchers engaged in innovative legal research in South Asia which employs social science methodologies. Building on existing conversations, LASS hopes to stimulate the development of further research into the links between knowledge production, techniques of government, and the ever transforming interdependencies of power, law, and resistance. LASS promotes an examination of how law and/or regulation is constituted as an object of study, and an interrogation of the conditions of its truth claims.

LASS may or may not necessarily inhabit the intellectual and political zones of comfort or of distress created by the habitus of postmodern jurisprudence. We invite critical engagement with the global travels of mainstream networks of Law and Economics, Law and Society or Critical Legal Studies, by providing a sustained critique of the fascination of progressive Eurocentric scholarship for South Asian law, economy and society studies.

LASS may equally turn its attention to the precious and precocious critiques of the “dark side of [European] modernity” which rarely attend to the histories of colonization and the Cold War as these have affected South Asia

We remain sensitive to the fact that the very expression ‘South Asia’ embodies forms of epistemic geopolitical imperialism. LASS remains particularly anxious concerning this essentialization of identity and by the same token resists its translation into an “area studies”. Further, it needs saying that some new geopolitics is now in the making. LASS thus calls for an appreciation of the histories of diversity and plurality, within which inescapably new traditions of law/society/humanities tradition of discourse may be further re-imagined. What purchase this may constitute for the tradition of the distinctive European post-Enlightenment critical legal studies tradition is an important thematic inviting further dialogical/discursive fellowships of juristic learning.

These methodological challenges are suggested with a view to inviting their further elaboration. Contributors should be mindful of these methodological concerns as they address issues in the following more specific settings. In particular, papers, panels, and presentations were invited on:

1. CONSTITUTIONALISM, REFORM AND RESISTANCE

· Constitutionalism, rights and regulation. Has the discourse on constitutionalism met new challenges in relation to changing statecraft, international law, or human rights in South Asia? How does regulation intersect with rights discourses? How do pictures of the written and unwritten scripts of constitutional law circulate in different sites of law and life?

· Languages of Power and of Resistance. What literary and visual representations of the law and resistance to law exist in the South Asian region? In what ways, the 'poetics' tend to subvert politics? Herein we signal the problematic of the multiplicity of the official languages and the politics of translation. How does the politics of resistance constitute the fields of law, creativity and collective action? What are the trajectories that turn the public domain inside out and force new sensibilities and new paradigms that foreground a different understanding of “justice”?

· The politics of law and judicial reform. What is the politics of law and judicial reform? How are histories of such reform to be archived and evaluated? How do different forms of representations [such as the media or those emanating from social movements] engage with projects of law reform? Do contemporary engagements with reform and resistance benefit with tracing the genealogy of categories, and discursive shifts which create new forms of subjection and subjectivities?

· Colonial and Postcolonial Imaginations of the Law: The challenges by legal historians and postcolonial theorists in thinking through law and social forms have led to a rich body of literature on law and society in South Asian contexts. We invite contributions interrogating colonial as well as neo-imperial formations of law, governance, and regulation. This panel retains an interest in the contestations on law’s past as these relate to the constitution of the nation-state, and reflections on the impact of history in the reconstitution of law as an object of study.

2. THE BODY, TECHNIQUES OF GOVERNANCE AND REGULATORY POWER

· The practices of governance in relation to environment, health and sexuality. What are the processes of govermentality which sanitise, medicalise or pathologise some forms of life? What form of regulatory power inhabits the constitution of waste and how does it participate in the formation of public aesthetics? How is the body encountered in public or administrative law? Is gender/sexual orientation/disability a site of recognition that allows us to critique the manifold elisions in the body of the law?

· Technology, Life and the Law. The relationship between science, technology, the body and resources are mediated by the state-corporation alliances in a globalised era. What are the ways in which we may interrogate the deployment of technology to control bodies and life forms, and the regulation of both life and technology through law?

· Technosciences, Environment, Risk and Regulation: How have human rights and social movement discourses pursued this relationship? What images of a ‘risk society’ remain constitutionally legitimate? Are these ideas revisited in the context of the environmental contemporary discourses, such as the global discourse on climate change?

3. PROPERTY, LABOUR, DISPLACEMENT

· Property in different domains of law and life. What are the new challenges faced today in thinking through property rights and discourses? What are some new forms of property emerging through new phases of economic reform? What futures one may envisage for agrarian reforms? What kinds if new property stand invested, particularly in relation to the changing regimes of intellectual property rights in South Asia?

· Labour rights, livelihoods and mass displacement of peoples in contemporary contexts of globalisation. What is the relationship between law and regimes of impoverishment in South Asia? In particular, how may globalization affect constitutionally mandated visions of development as most benefiting the worst-off peoples? As concerns worker’s rights, what legacies may we derive from the histories and narratives of working class movements in South Asia? How may we ‘read’ these alongside with the globalization–induced programs aimed at creation of ‘flexible labour markets’?

4. VIOLENCE AND SUFFERING

· Social suffering and political violence. This has multiple dimensions not fully exhausted by the figure of the detainee, torture and disappearance; forms of collective violence and atrocities in everyday and collective contexts; and the modalities of capital punishment and custodial violence have elicited critical research. How is the everyday conceptualised in these contexts? Beyond, and related to this, remains the question of the reproduction of foundational violence of the law. This emerges of course in the context of India-Pakistan partition; yet it also emerges equally fiercely, for example, in Afghanistan, the erstwhile Tibet, and Burma. This conference invites full attention to the postcolonial ‘nacropolitics’ (to deploy here the phrase-regime of Mbembe).

· Terror, Law and Biopolitics: What is the relation between terror, law and bio-politics? Or what would constitute the jurisprudence of emergency or exception in South Asia today? Put another way, we need to explore fully the law-society relationship between the pre and post 9/11 forms of wars of, and wars against ‘terror.’ How may have the South Asian studies tradition, at all, addressed ‘terror?’

· Movements of autonomy and secession: The South Asian experience remains marked by constitutional and ‘extra’-constitutional insurgencies. How has the construction of the political been conceptualized and narrated in law and society studies tradition in the ‘region?’ How does militarization of protest and of governance proceed to reproduce new forms of ‘bare life?’

Instructions for Submission of Papers

The Steering Group particularly welcomed the submission of pre-formed panel proposals. Individual proposals were welcome, as were proposals for full panels. Papers were also considered on any related theme.

500 word abstracts weresubmitted no later than 15th June, 2008. 500 word abstracts were submitted to Pratiksha Baxi at lassnet@gmail.com; abstracts were in Word, WordPerfect, or RTF formats, following this order: author(s), affiliation, email address, title of abstract, body of abstract. We got back to you within 8 weeks. If an abstract was accepted for the conference, a full draft paper was submitted to the conference secretariat and distributed to the discussant and fellow panel members no later than 01 December 2008.

The maximum duration of individual presentations within each panel was 20 minutes. The abstracts are hosted at http://www.lassnet.org/