Law and Social Sciences Research Network

LASSnet videos: Pune 2010

2011-12-24T13:23:00.001+05:30

Dear All

We're happy to announce that the video recordings of the Law and Social Sciences Research Network Conference held in Pune in December 2010 are now available publicly. We've recorded a selection from the Plenary Sessions, the Memorial Panels and some of the other panels held at the conference to give people a sense of the diversity of discussions that happened over four days. The links are available on the Pad.ma website, and have been listed below at the end of this email.

Thanks to Maya, Dalia, and the students and faculty at FLAME who organised for many of the sessions to be recorded. Thanks also to Sebastian and Shubha for helping with the recordings. And of course, thanks to Pratiksha for pushing us to ensure that there is a record of this massive organisational effort that serves both as an archive and an inspiration to take this effort forward.

A little note on Pad.ma: Pad.ma is an open, autonomous video archive that allows for dense textual annotation on videos. To see LASSnet videos, you can click here and see the list of various videos, or you can click on individual links provided below. This link leads to the info page about the videos. Clicking on the video thumbnail or changing view option to editor, leads to the entire video timeline. The video player on the left has a play button at the bottom, and the video should load easily on a decent broadband internet connection. By pressing 0 you can go to the next section or clip within the same video, by pressing 9 you can go backward. You can press H for help and other commands.

Pad.ma allows for multiple levels of interaction with the video. On the info page, you can download the entire video via torrent, and on the timeline/editor page you can select in and out point and download a smaller section as a media file. This option is available in dropdown menu under Actions. You can also add comments, keywords, description and transcript to the text on the right side, by clicking on the + (plus) sign. Pad.ma allows for layering of comments, but not editing contributions made by others. For any help on doing any of this or other comments, please write to namita@altlawforum.org or to Zinnia at z@pad.ma

It has not been possible to transcribe all the LASSnet videos though they have been annotated by keywords. Any volunteers who would like to transcribe one or many videos should contact us.

Hope you enjoy these videos!

- Siddharth, Sruti, Namita, Raghu and the entire pad.ma team

List of videos available:

LASSnet 2010: Affective Leadership: Balagopal and the Reimagining of Judicial Activism, Human Rights and the State

http://pad.ma/Vtkadgir/info
Jinee Lokaneeta, Arvind Narrain, Ajay Gudavarthy, Sitharamam Kakarala, Anuj Bhuwania

LASSnet 2010: Book Discussion: Subalternity and Religion: The Prehistory of Dalit Empowerment in South Asia by Milind Wakankar
http://pad.ma/Vsnpb6du/info
Milind Wakankar, Deepak Mehta, Bhrigupati Singh, Anupama Rao

LASSnet 2010: Closing Keynote - Indicators as a Technology of Global Governancee
http://pad.ma/Vsb0pszb/info
Sally Engle Merry, Shalini Randeria

LASSnet 2010: Courting the City: Law and the (Un)Making of Millennial Delhi

http://pad.ma/Vsn9jo1c/info
Gautam Bhan, Dalia Wahdan, Anuj Bhuwani, Awadhendra Sharan (presentation not in entirety)

LASSnet 2010: Doing Legal Philosophy in India: Reflections on the Legacy of Chhatrapati Singh
http://pad.ma/Vssc8y85/info
Arudra Burra, Upendra Baxi, Sanil V., Navjyoti Singh, Rajeev Bhargava

LASSnet 2010: Employment, Discrimination and the Law

http://pad.ma/Vfx9qch4/info
Gayatri Singh, Maithreyi Mulupuru, Paul H. Merry, Tarunabh Khaitan

LASSnet 2010: Fear, Secrets and Lies: The Uncanny World of Law after Media

http://pad.ma/Vsn7g4o4/info
Ravi Vasudevan, Ravi Sundaram (in absentia), Ranjani Mazumdar, Lawrence Liang

LASSnet 2010: Law and its Publics: S. P. Sathe Memorial Panel

http://pad.ma/Vg9e4ert/info
Kalyani Ramnath, Deepa Das Acevedo, Dipika Jain,

LASSnet 2010: Neelan Tiruchelvam and the Imagination of Southasian Constitutionalism
http://pad.ma/Vfba3r89/info
Veena Das, Arvind Narrain, Siddharth Narrain, R. Sudarshan, Kanak Mani Dixit

LASSnet 2010: Opening Session (Part 1): Inagural Key Note- Varieties of Variance: Fractures and Fissures in the Great Pyramid
http://pad.ma/Vi2ccrit/info
Marc Galanter, Niraja Gopal Jayal

LASSnet 2010: Opening Session (Part 2): Plenary 1: Law, Violence and Exception
http://pad.ma/Vtjmfqcf/info
Milind Wakankar, Deepak Mehta, Anupama Rao, Naveeda Khan

LASSnet 2010: Plenary 2 -Rule of Law: Insurgent Reason and Public Reason
http://pad.ma/Vu0hwg1k/info
Upendra Baxi, Kanak Mani Dixit, G. Haragopal

LASSnet 2010: Plenary 3 - Broken Attachments: Envy, Hatred and Vengeance in Law
http://pad.ma/Vs6q42gy/info
Veena Das, Jonathan Goldberg-Hiller, Nivedita Menon, Lawrence Liang

LASSnet 2010: Religion and Constitutionalism in India
http://pad.ma/Veukf5kj/info
Sitharamam Kakarala, Arvind Narrain, Rohit De, Gilles Tarabout, Abhik Majumdar,

LASSnet 2010: The Paper Trail: Documentary Forms and Practices
http://pad.ma/Vdxzo0n5/info
Radhika Singha, T aringini Sriraman, Shrimoyee Nandini Ghosh, Bhavani Raman

LASSnet 2010: Who’s AADHAAR is it anyway? Reflections on the UID debate

http://pad.ma/Vgdh6hzm/info
Usha Ramanathan, R. Ramakumar, Sahana Basavapatna, Subasri Krishnan

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2010-08-01T02:17:00.001+05:30

CENTRE FOR THE STUDY OF LAW AND GOVERNANCE
JAWAHARLAL NEHRU UNIVERSITY

invites you to the
SPECIAL DISTINGUISHED LECTURE

by

SALLY E. MERRY
Professor of Anthropology, and
Formerly, Director of the Law and Society Program
New York University

on

Measuring the World
Indicators, Human Rights, and Global Governance

with

Prof. T.C.A. Anant
Chief Statistician of India
in the chair

At

SSS-I AUDITORIUM, JNU
On

13 AUGUST 2010, TIME: 5.30 p.m.

Please join us for tea after the Lecture.

2010-07-14T19:09:00.000+05:30

LAW AND SOCIAL SCIENCES RESEARCH NETWORK, DELHI CHAPTER
FOURTH SYMPOSIUM

Legal Subjection – conversations on law, power and govermentality
JULY 22, 2010, Thursday
Conference Room, Top Floor, Centre for Policy Research, Dharam Marg, Chanakyapuri, New Delhi – 110021, Tel: 91-11-26115273-76 (4 Lines)
Instructions for Speakers: Each Presentation will not be longer than 20 minutes, and discussant’s comments will not be longer than 10 minutes. Please circulate papers in advance.

RSVP: president_cpr@vsnl.com
Session 1: Postcolonial Legalities/Illegalities
10 -10:15 a.m. Tea
10.15 a.m. – 12:15 a.m.
Chair/Discussant: Upendra Baxi
 Nandini Sundar, The Rule of Law and Citizenship in Central India: post-colonial dilemmas
 Ruchi Chaturvedi, Justice for None: Political Violence and Criminal Courts in North Kerala
 Usha Ramanathan, Surveillance, Tracking, Profiling: In the Name of Welfare
 Jinee Lokaneeta, Being Civilized Keeps us at the Mercy of the Beast: Torture in Liberal
Democracies

12:15-12:30: Tea
12:30 – 1:30 p.m.
Session 2: Law, Governance and Identity
Chair/Discussant: Amit Prakash
 Roger Begrich, Thirsty for Sobriety: Governing the adivasi subject in Jharkhand
 Aysel Madra , Secularism and Religious Politics in Turkey and India: A Comparative Analysis with a Focus on Court Decisions

Lunch: 1.30 p.m. - 2.30 p.m.
2:30 – 4:30 p.m.
Session 3: Sociality, Legality and Affect
Chair/Discussant: Shalini Randeria
 Rupal Oza, Security, Border enforcement, and policing at the boundaries of neo- liberalism
 Srila Roy, Feminist politics in neoliberal india
 Ajay Gudavarthy, Beyond Global human rights
 Oishik Sircar, Two Histories of Desire: Who Speaks for 'Indian' Sexualities?

2010-07-01T14:16:00.001+05:30

The deadline for submissions of abstracts for papers and panels for the Second Law and Social Sciences Research Network (LASSnet) Conference to be held in Pune from December 27th - 30th, 2010 has been extended to July 31st, 2010. Please send in your abstracts to Siddharth or Sruti at lassnet2010@gmail.com.
There wont be further extensions. Please help us bring a closure to this process by sending in your abstracts in time.

LASSnet Conference 2010, CfP

2010-04-14T01:01:00.002+05:30

CALL FOR PAPERS
LASSnet 2010: Siting Law
Second Conference of the Law and Social Sciences Research Network (LASSnet)
DECEMBER 27-30, 2010
Venue: Foundation for Liberal and Management Education (FLAME), Pune

The Law and Social Science Research Network (LASSnet) was established in 2007 to bring together scholars, lawyers and doctoral researchers engaged in the research and teaching of issues connected with the law in different social sciences in contemporary South Asian contexts. The idea was to create a common forum for the exchange of ideas, work, materials, pedagogies and aspirations from a range of different institutional locations and theoretical frameworks. Given how much of our understanding of the law in South Asia has been shaped by the experience of social movements, we also hoped to provide a space in which activists, legal practitioners, and academics of all stripes could get together to share experiences and reflections. The creative tensions that emerged from such conversations, we felt, might lead to new agendas for both research and practice in the future.
The inaugural LASS conference was held at the Centre for the Study of Law and Governance, Jawarharlal Nehru University, New Delhi, in January 2009. In the inaugural conference of LASSnet, we saw a number of conversations across disciplines among legal scholars, practitioners, activists, anthropologists, historians, philosophers, social theorists, political scientists, economists and science and technology scholars. For the second edition of the LASSnet conference we have chosen to continue with such inter-disciplinary excavations, and to venture further afield.
By focussing on the multiple sites of law we seek to open out ways of thinking about the social life of law and legality and its relation to questions of violence and injustice in South Asia. We recognize that the project of modern law emerged through the universalizing of a particular form of rationality and established itself in a large part of the world through the violent history of colonialism. The project of law and the project of modernity often became synonymous, and legal scholarship also tended to reproduce this relationship.
We are therefore interested in enquiries that critique monolithic forms of legal rationality. If the project of critiquing is to have any relevance, it is in its ability to conjure possibilities and alternatives that have remained unimagined. Thus another way of thinking about the relationship between law and the social sciences would be through the metaphor of ‘sighting law’, which invites us to look at a range of social practices which have either been marginalized as custom or dismissed as affect and hence deemed irrelevant to legal theory.
To be attentive to the multiple sites of law is also to be attentive to the role played by the social sciences - particularly anthropology and history- in opening out the way we think of law as a cultural and not merely as a legal process. LASSnet seeks to extend the ways in which the law can be ‘cited’ in other disciplines, and we hope that the sub themes of this edition of the conference allows us to collectively explore the diversity of forms that may exist, both within the formal legal structure as well as outside it.
The routes which social scientists and legal scholars took to the sites of law, and the methodologies that they developed have traditionally been accounted for in terms of their differences. We wish to see this difference as being precisely the common ground on which we stand, and as the basis on which we can cite scholarship about legal experience differently.

CONFERENCE SUB-THEMES
While the Steering Committee will make its selection from as wide a basis as possible, we would particularly welcome presentations that address the following themes, which we see as especially interesting to consider in the contemporary South Asian context. Please note that the sub-themes are merely illustrative of the goals of the conference and are not exhaustive.

1. Law’s Publics: Counter legalities and Counter Publics
The law often claims to have an unmediated access to the public, for instance in Public Interest Litigation or in the determination of what counts as legitimate public purpose. Struggles for the recognition of socio-economic rights and dignity have often been premised on the claimants being recognized as legitimate public actors. What role is played by the law in the constitution of a public, and what role is played by the notion of a public in thinking about the legitimacy of the law? Conversely, what role is played by the law in the constitution of the hybrid realm of public-private entities which facilitate the flows of a globalised capital? Is the valorized language of illegality the only means of expressing resistance to law, or can political struggles, marked by their inability to be properly constituted in the sphere of liberal legality, resurface as counter publics who nevertheless stake a claim to legitimacy? In a time of ever more inventive forms of neo-liberal violence, how can counter-publics avoid capture by a legal apparatus intent on re-territorialising the terrain of the political?
2. Law like Love: Law and Affect
The ‘affective turn’ in the social sciences is beginning to speak to legal debates. How do we begin to undertake a genealogy of the affective life of law in which reason and unreason intermingle? To explore the affective life of law is to understand the ‘body of law’ not merely as an archive of legal judgments, but to engage seriously with ideas of corporeality in law, and to acknowledge that the power of law emanates as much from its affective force as its symbolic power. How does the law deal with this messy world of affect and emotion, and what are the ways through which inter disciplinary scholarship can redress the historic disavowal of affect in legal scholarship?

3. The Careers of Constitutionalism in South Asia
Constitutions as a genre have deep roots within the histories of European universalism. The emergence and experience of postcolonial transformative constitutions, marked by a different relation to questions of justice, time and memory, have significantly altered this universal narrative. How do we account for the various histories of this transformative, and even insurgent constitutionalism? At the same time there seems to be a tension between the constitution as a text of governance and text of rights. How do we critically uncover other histories and sites through which we can understand the careers of constitutionalism in South Asia? Finally, how does contemporary constitutional theory respond to the challenges posed by the emergence of the new global economic constitutionalism?
4. Theatres of Justice
Living as we do in an age saturated by hyper-science and hyper-media, we have a plurality of places in which legal norms are produced. The blurring of the lines between media, science and culture makes it imperative for us to explore the new and emerging sites of legal meaning. There is sometimes even a blurring of these spaces, as evidenced in various reality TV shows that mimic the structure of the courts. How for instance do ideas of expertise move from the laboratory to the court and back? How do images of legality produced in a studio serve as the basis of a new legal imagination? How are we to understand these multiple scenes of the law, in which the formal judicial process appears as one of the many competing actors in the theatres of justice?

INSTRUCTIONS FOR SUBMISSION
In keeping with the eclectic spirit of LASSnet, we welcome submissions that address concerns of the LASSnet broadly, including papers, panels, and presentations on the four sub-themes detailed above. We welcome proposals for panels as well as for individual paper presentations.
Panel proposals: Panel coordinators should submit a panel description of 300 words as well as a proposed list of panelists (ideally no more than four per panel). The panel description should be accompanied by individual paper proposals for each panelist, following the instructions below. Coordinators may also choose to propose a chair or discussant for the panel as a whole.
Individual papers: Paper abstracts (300 words) should be submitted to Siddharth Narrain and Sruti Chaganti at lassnet2010@gmail.com. Abstracts may be in Word, WordPerfect, or RTF formats, following this order: author(s), affiliation, email address, title of abstract, body of abstract. Abstracts should be submitted no later than July 1, 2010.
We will get back to you within eight weeks of receiving an abstract. If an abstract is accepted for the conference, a full draft paper should be submitted to the conference secretariat by November 15, 2010 and distributed to the discussant and fellow panel members no later than December 01, 2010. In the case of pre-formed panels, this will be the responsibility of the Panel Coordinator.
The maximum duration of individual presentations within each panel will be 20 minutes.
Further announcements about registration, funding and venue related details will be made available at www.lassnet.blogspot.com and (in due course) www.lassnet.org. Please contact Siddharth Narrain or Sruti Chaganti (lassnet2010@gmail.com) for additional information.

STEERING COMMITTEE FOR LASSnet 2010:
Lawrence Liang (lawrence@altlawforum.org), Alternative Law Forum (ALF) (www.altlawforum.org)
Siddharth Narrain (siddharth.narrain@gmail.com), ALF
Sitharamam Kakarala (ram@cscs.res.in), Centre for the Study of Culture and Society (CSCS) (www.cscsarchive.org)
Sruti Chaganti (sruti@cscs.res.in), CSCS
Maya Dodd (mayadodd@gmail.com), Foundation for Liberal and Management Education (FLAME), Pune (www.flame.edu.in)
Pratiksha Baxi [LASSnet anchor] (Pratiksha.Baxi@gmail.com), Centre for the Study of Law and Governance (CSLG), Jawaharlal Nehru University (JNU)
Shrimoyee Ghosh (shrimoyee@gmail.com), CSLG, JNU
Stewart Motha (S.Motha@kent.ac.uk), Kent Law School, UK
Arudra Burra (arudraburra@yahoo.co.in), Princeton University, US
Brenna Bhandar (brenna.bhandar@gmail.com), Kent Law School, UK
Anuj Bhuwania (anujbhuwania@gmail.com), Columbia University, US

Eesvan Krishnan's bio

2010-03-22T09:47:00.003+05:30

I am a graduate student in law studying land acquisition in India and I'd be very interested in being in touch with other researchers of whatever discipline who are working on the same or similar issues, or more generally on Indian legal history.

My specific subject is the history of the law governing land acquisition for companies in India, from 1857 to 2007. This study is for a doctorate in law at the University of Oxford. For the calendar year 2010, I am based at the Centre for Policy Research, New Delhi, as a visiting fellow.

Prior to this year, I read for a BCL and an MPhil in law at Oxford. Prior to that, I completed a conjoint law and commerce degree at the University of Auckland, New Zealand, and clerked at the Supreme Court of New Zealand.

My email address is eesvan.krishnan@merton.ox.ac.uk

Supreme Court's Loss - How it can be remedied?

2010-02-19T10:36:00.003+05:30

Cross-posted from Law and Other Things.

I draw readers' attention to Salil Tripathi's interesting piece on Justice A.P.Shah's non-elevation to the Supreme Court in Livemint. I especially liked his view that Justice Shah contributed to nyaya rather than niti.

I am sure our political class wants such a Judge in the Supreme Court. But is the President helpless in the context of Proviso to Article 124 which mandates that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted? Here are my tips on how the President can get around this problem, if she is really keen that Justice Shah must be appointed as a Supreme Court Judge.

1. There is a grey area in both the Second and Third Judges Cases as far as how the President must consult the CJI. If you read Article 124 and the judgments in these two cases carefully, you would notice that the Supreme Court did not set aside Article 124 (2)which says that the President shall consult with such of the Judges of the Supreme Court and of the High Courts in the States as she may deem necessary for the purpose. It is surprising that the President never exercised this responsibility at all since 1993 when the Second Judges Case was decided. Even prior to 1993, the President (that is, in aid and advice of the Council of Ministers) appears to have consulted only the CJI, and not other Judges.

No doubt, the judgments in the Second and Third Judges Cases explain how the consultation with the CJI must be held, that is, through the Collegium, and that consultation must be effective (not concurrence) But it could not have been the intention of the Supreme Court that the Proviso to Article 124 would leave the Article itself redundant. Therefore, having consulted the CJI through the Collegium, to satisfy the Proviso, the President could still appoint Justice Shah on the basis of her consultation with other Judges of the Supreme Court or the High Court, who might have favoured his appointment.

In the Third Judges Case, the Supreme Court confuses Article 124(2) with how the CJI ought to form his view in consultation with other senior Judges. Article 124(2) refers to President's privilege to consult any Judge whom she deems fit. This privilege cannot be compromised with that of the duty of the CJI to consult his colleagues to form his view.

2. The above interpretation is valid because the judgment in the Third Judges Case throws light on when a Collegium's recommendation may not be binding on the President, that is, in the area of non-appointment of a Judge for cogent reasons.
As the media reports reveal, Justice Shah's name was not favoured by only one member of the Collegium. All the remaining members including the CJI favoured him. Therefore, even if the President appoints Justice Shah, it will be in conformity with the view of the CJI, thus satisfying the requirement of the judgment in Third Judges Case.

There is nothing in the Third Judges Case judgment which says that the CJI can recommend an appointee only if there is a consensus within the collegium. The Court saw consensus as an ideal, but clearly said a recommendation could be sent, if there is majority support including that of CJI within the Collegium. That is, it does not envisage a veto by any member of the Collegium except by the CJI, who has primacy. Therefore, if the Collegium had not sent the recommendation on Justice Shah because of the opposition of one member, then it is certainly not in conformity with the judgment in the Third Judges Case, and therefore, not binding on the President.

3.In fact, Collegium's views on every eligible Judge in terms of seniority must be sent to the President with a recommendation to appoint or not appoint. That is why the Third Judges Case judgment says if the CJI's view is opposed by other senior Judges of the Collegium, then the President is not bound to appoint. Here, the inference is that in that situation, the CJI would have been in minority within the Collegium. But Justice Shah's case is different. The CJI and all members of the Collegium except one favoured him. Since the dissenter was in a minority in the Collegium, there was every reason for the President to appoint Justice Shah.

4. It appears that the President requested the Collegium to reconsider its non-recommendation of Justice Shah, and still the recommendation to appoint Justice Shah was not forthcoming. Here, the question of Collegium reiterating its non-recommendation in order to make it binding on the President does not arise. Reiteration is binding on the Government only in the context of recommendation to appoint, not recommendation to not appoint or failure to recommend an eligible appointee. Here is the December 2008 CNN-IBN report on the Collegium's refusal to reconsider its non-recommendation of Justice Shah.

5.The Third Judges judgment only says the Collegium need not give strong and cogent reasons for not recommending a person. But the Government can certainly ask for the Collegium's views if it considered and discussed a possible appointee. The Government, then can well decide on the basis of the minutes of the meeting- in the absence of a recommendation from the Collegium - whether the non-recommendation was in conformity with the Third Judges judgment, and whether a Judge other than the CJI illegally vetoed a possible recommendation to appoint.

6. The system of appointing Judges on the basis of recommendations from the Collegium, no doubt, was laid down in the Second and Third Judges judgments. But these judgments do not abrogate Article 124(2) and the President's privilege to consult the CJI and other Judges independently of the Collegium's recommendation, to consider appointments of eligible persons, whom the Collegium may have overlooked.

LASSnet Auhor: UC JHA Book Announcement

2010-02-18T22:37:00.000+05:30

Wg Cdr (Dr) U C Jha (Retd)

1. The Military Justice System in India: An Analysis, Published by LexisNexis, 2009.

2. The Armed Forces Trbunal, Published by Manas Publications, New Delhi, 2010.

Post from Manjira Datta

2010-02-18T22:35:00.002+05:30

Pls look up http://www.magiclanternfoundation.org/Events/pr2010/pr10_schedule.html

My films are being screened on 25th Feb at 11:45 am in Audi 1 and Audi
2 and also 5 films of mine are being screened in RETROSPECTIVE
section.
On 26th at 5 pm or thereabouts-LIFE OF THE LAW is being screened . A
film on Village Dispute Resolution.Hope LASSNET will post this on their
site or pass this message to others.
Hope to see u.
Warm wishes
Manjira Datta

The Case of Sexual Abuse

2010-01-26T18:18:00.002+05:30

The Ruchika case led to much discussion in the media and expression of disgust with the system. However, I sometimes felt that too many issues were collapsed together and there was insufficient attention paid to the question of how one might name this kind of abuse.
It seemed to me that the most important issue here was systematic abuse of authority to terrorize the girl and her family. The main issue is not simply that of molestation - I am not condoning molestation but I imagine that if this had been, say, a young boy of of 16 or 17 years of age, living in the neighborhood who had molested a girl of fourteen - there could be many ways in which she could have imagined protecting herself from him, including reporting to his parents or taking neighborhood action. It is the fact of a man who is so much older and in a position of authority that might have signaled to her that he could call her to his office when he wished, that no one could stand up to him and that every effort to protect herself would unleash further violence. this is what is at stake - it has to be named and punished by broadening the terms of the inquiry against Rathore and everyone who collaborated with him. I feel we need to distinguish between acts of molestation that are done by those in authority such as workplace superiors, teachers, representatives of the state such as policemen or administrative officers, as well as those within the family or kinship group who not only molest a girl but also use their superior authority to create a continuous regime of intimidation and fear. Further, since Ruchika was only fourteen years old, she should have come under some kind of law relating to child protective services. It seems to me that distinguishing the types of crime here would be very useful for purposes of criminal proceedings. Legislating that punishment for molestation should be equal to the punishment for rape does not seem to be the right direction - instead of child abuse should be named as such and made punishable reflecting the severity of what abuse of authority can do to a child.
Second, the media's attention and the intensity it generated was useful to the extent that it provided support to the family and her friend whose courage is to be admired in pursing the case . However, intensity of emotions will wax and wane - what is needed now is surely some watchdog body from the media and civil society representatives that the case will be pursued expeditiously and fairly. The law cannot produce punishment independent of evidence and surely the pressure should be on the investigating agencies to produce meticulous evidence. Unfortunately, forensic procedures are routinely compromised, evidence collection in which time is of the essence is allowed to lapse, and thus as some of us pointed out in a Lancet article last year - violence against women goes routinely unpunished because the grounds for prosecution are not assembled carefully. Yet, appeals to how rotten the system is should not be allowed to come in the way of justice for this case. A cool, dispassionate oversight on the case to see that investigating authorities do not get away with complete incompetence or worse, is required. I wonder if any such support groups have been, in fact been formed. and if LASSNET can set up a web site and on the ground support.

LASSnet DELHI CHAPTER, FORTHCOMING WORKSHOP

2010-01-23T19:47:00.002+05:30

LAW AND SOCIAL SCIENCES RESEARCH NETWORK, DELHI CHAPTER
Ethnographies of Law
SECOND SYMPOSIUM

19TH FEBRUARY 2010
Conference Room, Top Floor, Centre for Policy Research, Dharam Marg, Chanakyapuri, New Delhi – 110021, Tel: 91-11-26115273-76 (4 Lines)
RSVP: president_cpr@vsnl.com

Session 1: 10.00 -11.30 noon

Chair/Discussant: Pratap Bhanu Mehta

Shalini Randeria, the (un)making of rights: urban development, forced displacement and the cunning state

Mathew John, Why does Ethnography have to be Wary of Norms?

11:30-12:00 – TEA

Session 2: 12:00-2:00 pm

Chair/Discussant: Uma Chakravarti

Shrimoyee Nandini Ghosh, Magic Bits of Paper

Mayur Suresh, Law Like Love

Pratiksha Baxi, Rape as “Atrocity”

2:00-3:00 Lunch

Session 3: 3:00-5:00 p.m.

Chair/Discussant: Kamala Sankaran

Shomi Brian, A Brief Ethnographic Account of the Tangkhul Naga Customary Court: TNL Kalangshim

Chubatila Ozukum, The Normalization of Wartime Vocabulary in the Everyday Legal Discourse: Cases of Indefinite Detention, Torture and Custodial Deaths in Nagaland

Anu Sharma, Doing Ethnography of Judicial Reform in India: Special Courts in Tihar Jail

Organised by LASSnet anchored at the Centre for the Study of Law and Governance, JNU and Centre for Policy Research, New Delhi

JUSTICE ANTOINE GARAPON IN DELHI

2010-01-23T19:41:00.004+05:30

JUSTICE ANTOINE GARAPON, COMPARING LEGAL CULTURES THROUGH FILMING TRIALS, AT A JOINT EVENT ORGANISED BY ISIL AND LASSNET

11 Jan. 2010

Constituent Assembly debates

2009-12-04T15:37:00.002+05:30

Maybe some of you already know about this search engine. It's super useful for electronic access to Constituent Assembly debates in India. It generates full text links from

http://parliamentofindia.nic.in/ls/debates

CFP

2009-07-10T09:15:00.001+05:30

Request for Papers
Rajasthan Policy Academy is planning to bring out a biannual journal. The major focus of the journal will be to sensitize and inform the readers to new developments and debates in the area like internal security, police science, police training, police reforms, peace, terrorism, insurgency, intelligence, criminology, forensic science, law and order, law enforcement, cyber crime, organized crime, white collar crime, violence against women, juvenile justice and delinquency, prison, human rights etc.
Your article/ paper on the above mentioned areas is welcome on the following address:Centre for Research and PublicationRajasthan Policy Academy,Nehru Nagar, Jaipur – 302 016.Webiste: www.rpa.rajasthan.gov.inEmail: policeresearchrpa@yahoo.in

Vikram Raghavan on Naz Foundation - Part 1

2009-07-10T09:09:00.000+05:30

There have been few, if any, cases whose proceedings have been closely followed and judgment keenly awaited as Naz Foundation. The verdict was eagerly anticipated, not just by lawyers and court watchers, but also by activists and a broad cross-section of ordinary people. Acutely aware of their role in contemporary history, the judges on the Naz Foundation bench did not disappoint. Their conclusion that Section 377 is unconstitutional vis-à-vis consensual adult sex is set in the elegant tapestry of a carefully spun decision embroidered with copious citations. The judges display great courage and craftsmanship in fashioning a historic decision heard loud and clear, not only in India, but across the world.I, for one, first got word about the decision from a friend in Dhaka who e-mailed her South Asian friends about the breaking news. It helped that the Delhi High Court immediately made the decision available on its website, and the BBC promptly posted a link spurring downloads across the globe. A friend called me from New York to say that he could not retrieve the judgment because the high court’s server was clearly overloaded. Over the weekend, the New York Times’ story on Naz Foundation was among the top ten most popular stories on the newspaper's website. Naz Foundation is likely to rival the mango this summer as India’s top export! I don't know of any other Indian case that has enjoyed this much fame.The beauty of Naz Foundation is that it skillfully mixes originalism (rarely used by Indian judges anymore) with pragmatism in constitutional interpretation. It is a product of considerable strategizing, deep thinking, and extensive research. At the same time, the judges display great humanism, sensitivity, and empathy -- qualities rarely displayed in most Blackstonian judicial monasteries. The decision's artful prose, which sounds almost poetic in several places, is tempered by humility and modesty. Its cadences have the unmistakable stamp of Chinnappa Reddy's compassion and Bhagwati’s forensic reasoning without the distraction of Krishna Iyer's bombast.Symbolically as well as substantively, Naz Foundation marks a radical change in our Republic’s constitutional and jurisprudence. It fundamentally alters the relationship between a large disenfranchised, yet largely silent, minority and the hegemonic Indian state. For that reason, I believe it genuinely qualifies for that often gratuitously misused epithet of legal writing: "a landmark judgment." Yet, like all landmark judgments, Naz Foundation has its strengths, weaknesses, and penchant for controversy. To crudely adopt local imagery, the decision has the grandeur of the Red Fort's majestic ramparts as well as the confusion of Old Delhi's maze of bazaars, crowded streets, and alleys. In assessing this bewildering landscape, I’ll celebrate today the judgment's impressive monuments that display great judicial architecture and craftsmanship. In tomorrow’s post, I will deal with Naz Foundation’s not-so glamorous dimensions.1. At its core, Naz Foundation is an emphatic reiteration of the vision of our Republic’s Founders to establish a just, inclusive, and tolerant India. Mindful of the bitter and shameful legacies of our history, our Founders were especially unwilling to countenance any form of social exclusion. This is evident in, among other things, Article 17’s unprecedented constitutional prohibition on “untouchability” -- a term deliberately left undefined in the Constitution. Naz Foundation extends the command of Article 17 to abolish new avatars of disability based on sexual identity or orientation. The decision is also a reminder (not so much to India, but other less-enthusiastic jurisdictions) that a constitution is a living document, and its protections must be dynamically interpreted to apply to new situations and challenges.2. In affirming privacy as a fundamental right under Article 21 (the Constitution’s guarantee of life and personal liberty) and invoking it to partially invalidate Section 377, Naz Foundation constitutes a bold revival of substantive due process reasoning that has been rarely used by Indian courts. Perhaps, in this respect, Naz is the Son or Daughter of Menaka because the former is an unmistakable progeny of the latter. (A better child than Varun Gandhi at any rate). For it was in Menaka Gandhi that the Supreme Court, fighting the real and imagined ghosts of Gopalan, endorsed the use of substantive due process to embellish the Constitution’s fundamental rights and freedoms.In the thirty-two years since Menaka Gandhi was handed down, the Supreme Court has expanded the scope of Article 21 to discover a whole host of new rights, such as education, health, and shelter, in cases such as Unnikrishnan. However, most of those “new” rights are socio-economic in nature and are recognized in the Constitution’s Directive Principles. Moreover, the underlying cases (with the exception of Unnikrishnan) in which these rights were “discovered” did not require the courts to set aside or invalidate any central or state statutes.If Naz Foundation remains undisturbed or is affirmed by the Supreme Court, it will be only third time -- by my reckoning -- that an Indian court has used substantive due process to discover a new civil and political right (privacy) and invalidate a statute for transgressing that right. The only other decisions to use substantive due process in this manner are Mithu, where the Supreme Court struck down Section 303 of the Penal Code, which prescribed a mandatory death sentence for a life convict who commits murder and Canara Bank, where the Court invalidated an Andhra Pradesh revenue state that compromised confidential banking information. Rathinam, in which the Court invalidated criminal sanctions under Section 309 of the Penal Code for suicide attempts, also used substantive due process reasoning. But, as we all know, Rathinam was subsequently overruled by a constitution bench in Gian Kaur.3. Naz Foundation abandons the Supreme Court's reticence about privacy in Kharak Singh, Gobind, and Rajagopal and forcefully asserts that there is such a right in Article 21's guarantee of life and liberty. While that itself is a noteworthy constitutional milestone, the Delhi High Court has gone even further by arguing that privacy concerns focus on “persons” rather than places. In so doing, the High Court articulates a unique non-spatial and portable understanding of privacy. This understanding seeks to liberate privacy from its traditional focus on protecting the sanctity of the home, bedroom, (or, perhaps, in this case, the closet). This subtle, but skillfully reasoned, aspect of Naz Foundation is its most attractive constitutional feature. I suspect that it is this feature that will ensure the case is cited for many years to come in courts and classrooms. I should say, however, that tomorrow I will quarrel with the high court’s reasoning and actual conclusion on this issue. So, this is only qualified praise.4. I am especially struck by Naz Foundation's insistence on a strictly secular approach in adjudicating constitutional claims. It wisely avoids any reference to religious or moral dimensions, even though petitioners explicitly touched upon them in oral and written submissions (they argued that Section 377 was based on "Judeo-Christian" values). In this respect, Naz Foundation is strikingly different from other substantive due-process cases, such as Rathinam, its closest relative in some respects. In his rambling opinion in Rathinam, Justice Hansaria quoted extensively from religious and spiritual sources to support his thesis that the Constitution protects a right to die. By contrast, Naz Foundation is content with citing only the secular icons of our past, Nehru and Ambedkar. Their personal views on homosexuality remain publicly unknown, but their political philosophy would appear to tolerate it.5. Unlike any other decision before it, Naz Foundation has the unique potential to diminish popular, but irrational, moral condemnation of stigmatized groups. Witness the headlines in the Indian press reporting the decision “It is ok to be Gay,” “Sexual Equality,” “Gay and Finally Legal,” and “Sexual revolution in India.” It is for this reason, perhaps, that my good friend, Lawrence Liang argues that Naz Foundation is India’s Roe moment. Indeed, the mass publicity and fanfare heralding the decision presents a rare opportunity for activists to reshape public opinion and influence a wider social debate about gay rights. This is especially important, as in the long run, gays and other disaffected groups cannot only rely on courts to advance their civil rights agenda. They must build new political coalitions and engage the legislative process.6. Naz Foundation gives new meaning to identity politics in India. Dominant political and legal conceptions of identity focus on groups traditionally knitted together by religious, caste, or linguistic ties. By acknowledging the distinct status of persons, whose only common bond is sexual orientation, and addressing them as a collective (actually using the phrase "LGBT"), Naz Foundation recognizes the emergence of new social identities while carefully sidestepping lingering concerns about their elite roots and urban biases.7. Finally, the decision bolsters the Delhi High Court's reputation for being India's most important constitutional court apart from the Supreme Court. In recent years, the High Court has produced some innovative decisions that push the boundaries of our constitutional jurisprudence. Two notable gems are Maqbool Fida Hussain v Raj Kumar Pandey, 2008 (6) Del. 533 (decrying misuse of obcenity prosecutions) Justice and Parents Forum for Meaningful Education v. Union of India, A.I.R. 2001 Del. 212 (affirming constitutional rights of children and outlawing corporal punishment in Delhi schools). Naz Foundation is the latest milestone in the Delhi High Court's impressive track record, and a demonstration that one does not always need to depend on the Supreme Court for constitutional salvation.(This post, written entirely in my personal capacity, will be continued tomorrow). http://http://lawandotherthings.blogspot.com/2009/07/navigating-noteworthy-and-nebulous-in.html

Vikram Raghavan on Naz Foundation - Part 2

2009-07-10T09:07:00.001+05:30

Wednesday, July 08, 2009
http://lawandotherthings.blogspot.com/2009/07/navigating-noteworthy-and-nebulous-in_08.html
Navigating the Noteworthy and Nebulous in Naz Foundation -- Part II
Having celebrated Naz Foundation’s glorious ramparts yesterday, I turn now to critically appraise the decision’s side streets and alleys. I thought I would be able to complete that task in a single post today. However, after further meditating on Naz Foundation’s meaning, I think I need another post to do full justice to the case (and to save you from the exhaustion of reading). There are several disparate elements of the judgment that I discuss in today’s post. But I'm especially interested in the court's privacy analysis and consequential holding. In tomorrow’s post, I will focus on Naz Foundation’s discussion of the “compelling state interest” standard as well as its handling of the equality and equality protection issue.Before I resume my analysis of the judgment, I want to pay special tribute to petitioners’ counsel (and their many advisers) for their superb litigation strategy in this case. They did an exceptionally good job of marshaling and submitting a complex mélange of arguments backed by solid and first-class research. The written pleadings and oral arguments reflect considerable hard work, much internal discussion and organization, and careful planning. I’m especially impressed by petitioners’ decision not to ask the high court to strike down Section 377. It was a potentially risky decision. But it was a responsible one that helped ensure a successful outcome. Now back to Naz Foundation.1. Format and Style. Let me start with some structural quibbles. First, many readers complain that the judgment is 105 pages. I suspect that, after it is edited for publication in the law reports, the page count will go down considerably. I am disappointed, however, that the bench chose to adopt the tedious, standard template for Indian judgments. That template requires a detailed, and mostly superfluous, summary of arguments before a discussion of the issues. Consequently, pages 6 to 25 of Naz Foundation are a rambling regurgitation of the arguments presented by both sides. If this section had been considerably reduced or even eliminated, the judgment could have been considerably abbreviated.Second, although the text is divided into convenient headings to facilitate easy reading, each of the headings has the same font with no numbering scheme or outline to indicate how they relate to each other. This makes it difficult to identify the boundaries between major parts of the decisions. Third, text is so evenly formatted that it is difficult to determine, in many instances, whether a certain sentence is the bench’s observation or a verbatim quote from one of the many authorities cited in the judgment.2. Legal and Legislative History. The judgment has a very brief section on the legal history of Section 377. This section appears largely to rely on the account presented in Naz Foundation’s original writ petition. However, that reliance is incomplete for the judgment omits a critical paragraph in the writ petition, which explains how the introduction of Section 377 “was contrary to then existing Indian traditions, which did not treat sodomy as a crime.” It is unclear why the judges chose to ignore this paragraph borrowed from an important collection of essays on same-sex attraction. Perhaps, they felt that this issue would take them down the slippery road of interpreting religious and spiritual sources -- a journey fraught with potential for controversy, as Chief Justice Chandrachud discovered after his Shah Bano decision. It would have also required the judges to accept, deny, or at least comment on the petitioners’ loaded submission that Section 377 was based on “traditional Judeo-Christian moral and ethical standards.” Accepting such a submission, even if substantiated by historical evidence, could have made the judgment appear unnecessarily divisive.Laconically observing that the “Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India,” the judgment fails to mention anything about the statute’s colourful legislative history (“travaux preparatoires”). For instance, it could have referred to Macaulay’s decision to refrain from appending any guidance notes or illustrations to Section 377 (contrary to the practice for other parts of the Penal Code) motivated by his puritanical belief that the provision involved “an odious class of offences [about which] as little as possible should be said.” It could have mentioned, if the bench was so inclined, other historical nuggets, such as the fact that early offenders under this section could receive a whipping, in lieu of imprisonment, under the Whipping Act of 1864. In this respect, Naz Foundation is a bit of a disappointment, as I had fully expected it to discuss the statute’s Victorian background and why it had been enacted in order to understand why it is no longer relevant. In this respect, Naz Foundation is in stark contrast to the extensive discussion of legal history in the case it cites so extensively, Lawrence v. Texas.3. Review of Section 377 Caselaw. I find Naz Foundation’s discussion on Section 377’s case-law incomplete. Although the judgment refers to several leading cases (many from obscure and hard-to-find law reports), it does not tell us whether all or any of these cases involved same-sex conduct. Instead, after discussing the underlying holdings in each case, Naz Foundation argues that the “tests” for attracting Section 377 have changed from “the non procreative to imitative to sexual perversity.” If the judges intended to use “tests” as a moniker for “standards,” I’m afraid that the cases they cite offer them very little support. Those cases appear to have been discussing the object or intent of Section 377 (which varied from case to case) instead of the ingredients of the offence or the standards for sustaining a conviction under it.4. What Should We Call "Them?" The decision suffers from some taxonomical confusion about what to call those with same sex attraction given the diverse nature of groups involved. Discussing the petitioners’ standing in paragraph 6, the judgment refers to Naz Foundation’s work with the “gay community or individuals described as “‘men who have sex with men.’” It then states that, “for sake of convenient reference, they would hereinafter be referred to as ‘homosexuals’ or ‘gay persons’ or gay community.” Now, it does not seem particularly convenient to use three terms as a substitute for two. And where do these definitions leave lesbians, bisexuals, and transgendered persons? Are they subsumed within “homosexuals” or “gay persons”? What about those men who aren’t conventionally bisexual or homosexual but aren’t straight either because they have sex with men? Are they also homosexuals or gay persons under paragraph 6?The confusion over nomenclature is further compounded in subsequent paragraphs of the judgment because either the judges forget about the definition in paragraph 6 or simply decided against using it. Paragraph 50 refers to the “MSM and [the] gay community” (emphasis mine). But paragraph 52 mentions “MSM,” “lesbians,” and “transgenders.” And paragraph 61 reverts to the phrase “MSM and [the] gay community.”5. Government's Legal Representation. In paragraph 11, the bench notes that a “rather peculiar feature” of the case involved the Home Ministry and Health Ministry filing separate and contradictory affidavits about Section 377. Yet, the judgment goes on to accept the Home Ministry’s affidavit and arguments as the Union of India’s position without providing any explanation. The choice may have been obvious to the court, but it is not for a bystander like me.As a related matter, it is worth mentioning that, at various points in the judgment, the bench justifiably rejects the bizarre and absurd submissions made by the Additional Solicitor General (who appeared on the Union of India’s behalf) and castigates him for making them (see especially paragraphs 70-72). It even offers him a little civics primer when he questions the court's competence to exercise judicial review. It is amazing that the government’s position was presented so poorly and crudely in such an important case.Among the Additional Solicitor General’s arguments, which the bench rebuked, was his contention that Section 377 is not “prone to misuse as it is not enforced against homosexuals.” Now, besides the high court’s cogent reasons for rejecting this unsubstantiated statement, there was an additional justification for not accepting it. Under our federal scheme of governance, it is the state governments who control police and law-enforcement agencies. The Central Government has very little direct role in determining whether or not to prosecute a case under Section 377. Thus, it would have not been appropriate for the high court to have relied on the Additional Solicitor General’s statement on Section 377 prosecutions because he was not representing any of the states (they were not even parties to the proceedings).6. The Christmas Tree Effect. Reflecting the growing cosmopolitanism of the Indian judiciary, the case cites a large number of international and comparative constitutional sources. But unlike other contemporary decisions, the foreign citations in Naz Foundation are not mere ornaments or serial lights to make the decision sparkle. The case is among a handful of decisions in which judges rely on foreign precedents to actually shape an imaginative domestic outcome. References to Hong Kong, Fiji, and Nepal decisions in Naz Foundation are particularly important because they remind the reader that gay rights aren’t some luxurious western construct. The dates of many citations reveal that the bench continued to research the case long after it had been reserved for judgment.Yet, precisely because it includes so much material, Naz Foundation is like an over-decked Christmas tree with decorations obscuring virtually every bit of green. In some parts, the decision seems like the work of magpies: no shred of information seems to be too obscure for inclusion in its great kitchen sink of ideas. It is surely the Indian first case to actually cite a webcast!Furthermore, Naz Foundation is among the first cases that I’m aware of in which statements of the prime minister, health minister, and solicitor general are used as “unilateral declarations” (in the sense of the International Court of Justice’s 1974 Nuclear Tests Case) of the government’s position on Section 377 and attitudes towards men having sex with men. I suppose the court intended to formulate something like an estoppel doctrine using statements of high constitutional functionaries.Naz Foundation also relies on several international “soft-law” sources, such as the “Yogyakarta Principles,” and the “London Declaration of Principles on Equality” to argue that there is an emerging norm of international law on sexual orientation. As appealing as these principles might be, they hardly qualify as authentic sources of international law for they have been adopted by very few states. They are not general principles of international law, much less customary international law.7. Dignity Dimension. I liked the bench’s discussion of “dignity,” in paragraph 26. But I felt that the judgment could have elaborated a bit more on the reference to the “dignity of the individual” in our Constitution’s preamble (borrowed word-for-word from the Irish Constitution). Moreover, it is very surprising that Naz Foundation did not cite Kharak Singh here. In paragraph 16 of Kharak Singh, Justice Ayyangar makes a direct link between privacy and individual dignity enshrined in the preamble. This paragraph was subsequently reproduced as a block quote in Gobind. Why Naz Foundation did not use the quote is a mystery to me especially since it was attempting to telescope privacy with dignity – a maneuver first undertaken in Kharak Singh, a six-judge-bench decision of the Supreme Court.8. Privacy and Indian Constitutional Law. In yesterday’s post, I hailed Naz Foundation for expanding the doctrinal understanding of privacy. However, I believe that the bench’s analysis of privacy under our Constitution is far from adequate. Let us start with paragraph 35, which is located immediately below the caption “development of law of privacy in India.” This paragraph is devoted to a discussion of Kharak Singh (the largest Supreme Court bench to discuss privacy in any meaningful sense). In Kharak Singh, Justice Ayyangar, speaking for the majority, explicitly held that “the right to privacy is not a guaranteed right under our constitution.” However, he found that a state regulation, which permitted domiciliary visits by the police, was unconstitutional because it violated a “common law right to privacy.” He located this common-law right under the expression “personal liberty” under Article 21.In a separate and concurring opinion, Justice Subba Rao went much further than Justice Ayyangar and affirmed that the Constitution protects a fundamental right to privacy. In discussing Kharak Singh, Naz Foundation notes that the majority “did not go into the question” whether the police domiciliary visits “violated the right to privacy.” Yet, after referring to Subba Rao’s concurring opinion, Naz Foundation blithely concludes: “in effect, all seven learned judges held that ‘right to privacy’ was part of the ‘right to life’ in Article 21.” The High Court does not explain the basis for this sweeping sentence. It appears to have simply lifted it -- without proper attribution -- from the Supreme Court’s opinion in Canara Bank. Canara Bank is an embarrassingly bad opinion for a number of reasons, including its completely unnecessary digression into American constitutional theory, Just read it and you’ll see what I’m talking about!After Kharak Singh, Naz Foundation mentions Gobind (a somewhat maverick decision of Justice Mathew, which has been criticized for glossing over the majority holding in Kharak Singh) and Rajagopal (where Justice Jeevan Reddy largely followed Gobind on the privacy issue). In both decisions, the Supreme Court cautioned that privacy was not an absolute fundamental right and it would “necessarily have to go through a process of case-by-case development.” Yet, that admonition was conveniently forgotten by the Supreme Court in Canara Bank. As Naz Foundation accurately reports, Canara Bank concluded that the right to privacy has been accepted as “implicit in our Constitution.”While I acknowledge that Canara Bank is binding precedent on the Delhi High Court, I believe that Naz Foundation could have undertaken a more rigorous privacy analysis without simply cutting and pasting from Canara Bank. This is not unreasonable to demand from a bench, which demonstrated great skill in cherry-picking among conflicting Supreme Court decisions on application of the strict scrutiny test.Upon holding that there is a right to privacy under the Indian Constitution, Naz Foundation proceeds to articulate an untethered and delocalized understanding of privacy. Relying on that broad notion of privacy, paragraph 47 contains the poignant declaration that “[a] person cannot leave behind his sense of gender or sexual orientation at home.” It is unclear, however, whether this sentence is the high court’s own words or simply a quote from another source. Then, we stumble upon following statement (also in paragraph 47): “privacy allows persons to develop human relations without interference from the outside community or from the State (emphasis mine).” I’m tempted to stop and reflect further on the practical meaning of this remarkable observation, but I need to move on. So, I’ll defer to your comments about its wisdom.9. Privacy and the Vires of Section 377. Naz Foundation’s substantive commentary on privacy ends with the observation that Section 377 denies a gay person a right to full-personhood, which is implicit under Article 21 of the Constitution. Presumably, this is because Section 377 violates the unarticulated fundamental right to privacy. Yet, the thickness of this important conclusion is substantially undercut by the decision’s actual findings on the merits in paragraph 132. That operative paragraph of the judgment states that Section 377 is unconstitutional “insofar as it criminalises consensual sexual acts of adults in private” (emphasis mine).Based on the wording of paragraph 132, one cynical, but plausible, way to interpret Naz Foundation is that the new constitutional bar on Section 377 prosecutions applies only to sexual acts in a private dwelling or establishment. Under this interpretation, the section may still be freely applied to prosecute “non-private” conduct in a public place. Such a result would be particularly unfortunate because many documented instances of 377 harrassment have involved conduct in parks and other public places. They are quite unlike the police raid on John Lawrence’s bedroom, which was later declared a zone of privacy in the US decision, upon which Naz Foundation appears to have strongly relied.In some sense, the substantial disconnect between Naz Foundation’s soaring rhetoric on the concept of privacy and its parsimonious finding regarding the applicability of Section 377 illustrates the limitations of using privacy as a legal theory to challenge morality-based legislation. At first blush, privacy is a convenient and tempting shield to prevent the government from intruding into gays’ bedrooms. But it does not protect them when they leave their homes and affirm their bonds (even in the most benign manner) in public. It can be especially problematic in the Indian context because the “private” of many Indian gays is usually in the long shadows or dark corners of public places, like parks or beaches. For them, paragraph 132 does not seem to be a particularly liberating and emancipating holding.(This post, written entirely in my personal capacity, will be concluded tomorrow).

2009-07-10T09:02:00.002+05:30

Thursday, July 09, 2009

Navigating the Noteworthy and the Nebulous in Naz Foundation -- Part III
This third, and final, post builds on posts of yesterday and the day before on the Naz Foundation Case. In today’s post, I discuss, among other things, the Delhi High Court’s use of “compelling state interest” as a standard for assessing fundamental rights infringements as well as its handling of the equality and equal protection issue.
1. Compelling State Interest and Morality. Paragraph 75 of Naz Foundation appears under the caption “morality as a ground of a restriction to fundamental rights.” This paragraph discusses restrictions on the conjoined fundamental right to privacy-dignity as well as the fundamental right to health. The bench begins by stating that a law infringing a fundamental privacy right must satisfy a “compelling state interest.” It correctly attributes this standard to Justice Mathew’s Gobind opinion. It then travels beyond Gobind to hold that the enforcement of public morality is not a compelling state interest to “justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private.” To paraphrase Justice Mathew’s own words in Keshavananda, “I have tried, like Jacob of the Old Testament, to wrestle all night with the angel,” namely, the use of the “compelling state interest” standard in Indian constitutional adjudication.
I certainly have no quarrel with the general proposition that enforcement of morality is not a compelling state interest, much less an important or even a marginal interest. However, I believe that Naz Foundation’s use of the “compelling state interest” standard here is completely out of line with prevailing Indian precedents. It is true that Justice Mathew proposed and used the “compelling state interest” standard in Gobind to determine whether the regulations at issue in that case past constitutional muster. I believe he was so greatly enamored with recent American decisions on contraception and abortion that he readily imported their teachings to India without adequate due diligence. It is one thing to refer to foreign precedents to expand the meaning of the fundamental rights, it is quite another to import constitutional standards to assess restrictions on those rights from a jurisdiction with a different analytical framework for constitutional questions.
It should be pointed out that the “compelling state interest” standard, which Justice Mathew enthusiastically adopted in Gobind, is part of the U.S. Supreme Court’s strict-scrutiny test to screen restrictions on fundamental rights. That test was judicially developed largely because the American Constitution provides little textual guidance on what restrictions can be imposed on fundamental rights. In India, the situation is rather different because our Constitution has “in-house” rules with specific grounds on which “reasonable” restrictions can be imposed on most fundamental rights (see, e.g., Article 19 (2)).
In fairness to the Naz Foundation bench, I should point out that Justice Mathew was a fairly consistent advocate for varying applicable of judicial review depending on the subject involved. For instance, in Ambica Mills, he argued that laws regulating economic activity should “be viewed differently” from laws which concern freedom of speech and religion, voting, procreation, or criminal procedure. He would defer to legislative wisdom on economic laws and exercise greater vigilance in other areas (of course, his deference to economic laws was in the context of India’s flirtation with socialism during the 1970s!).
Aside from Gobind, I am hard pressed to find any major decision that either affirms or applies the “compelling state interest” standard. Rather, as Naz Foundation, itself, says in paragraph 25, after Menaka, any interference with life or personal liberty “must be right and just and fair and not arbitrary, fanciful, or oppressive.” This “just, fair, and reasonable” standard has been the generally applicable benchmark to assess governmental action for past three decades now. One way to reconcile the apparent contradiction between paragraphs 25 and 75 in Naz Foundation would be to apply both standards together. In others words, every governmental action that violates a fundamental right must henceforth satisfy Menaka’s test of “just, fair, and reasonable” as well as Gobind’s requirement of furthering a “compelling state interest.” If this interpretation of Naz Foundation is correct, I’m afraid it is a rather radical restatement of the law.
Another way to resolve this conundrum would be to only apply the Gobind + Menaka formula to questions about penumbral or uncodified rights like privacy and health. Questions concerning codified rights would only have to meet the Menaka standard. But this solution would imply a higher constitutional bar for actions affecting penumbral rights than those actions affecting textual rights. This outcome would be irrational since penumbral rights are, in fact, derivatives of textual rights.
2. Substitution of Morality Standards. Let me turn now to the impressive manner in which Naz Foundation redefined the morality argument and turned it on its head. Rebutting the notion that public disapproval of homosexual conduct is an accurate barometer of morality, Naz Foundation brilliantly argues that it is “constitutional morality” rather than popular morality that ought to be the applicable yardstick. This aspect of Naz Foundation is, perhaps, what I like most about the case and underscores why I believe it is a landmark decision. The idea of a controlling “constitutional morality” is in, some sense, a continuation of the bench’s insistence on a secular approach in the judicial process case without risking a footfall into religious or sectarian ditches.
At the same time, I do not believe that Naz Foundation’s substitution of constitutional morality for popular morality is a silver bullet. Just consider the spaghetti bowl of inconsistent Supreme Court decisions on whether there is a constitutional right to trade in liquor or if it is res extra commercium. Some of our most enlightened justices have tied themselves up in knots over this issue because of their concern about its underlying moral implications. I should also point out that Naz Foundation does not imply that any morality-based legislation or governmental action is no longer permitted. Rather, it argues that that public disapproval is not an adequate reason to restrict a fundamental rights.
3. Implied Desuetude of Section 377. I want to end my discussion of morality in Naz Foundation by focusing on a most intriguiging sentence in paragraph 86, which reads:
In fact, the admitted case of the Union of India that Section 377 IPC has generally been used in cases of sexual abuse or child abuse, and conversely that it has hardly ever been used in cases of consenting adults, shows that criminalization of adult same-sex conduct does not serve any public interest.
In this passage, the court was referring to the Additional Solicitor General’s argument that Section 377 should be saved because it was not being enforced against homosexuals. The high court initially rejected this contention in paragraph 74 as contrary to evidence and testimony proffered by the petitioners. Yet, interestingly, the bench returns to this argument in paragraph 86, but only to turn tables on the government. It reasons that, if Section 377 has not been used to prosecute adult same-sex conduct, one can legitimately question whether such conduct should at all be criminally proscribed. In other words, if a statutory provision has fallen into disuse, why bother maintaining it?
Although Naz Foundation does not refer to it, there is, in fact, an old common-law doctrine called “desuetude” that supports this line of reasoning. This doctrine has, in fact, been recognized by the Indian Supreme Court in Municipal Corporation v. Bharat Forge, (1995) 3 S.C.C. 434, and it is a pity that it was not considered in this case. Perhaps, it was because petitioners were not confident that they could satisfy all the elements of the doctrine. For desuetude to set in, the statute in question must have been in disuse for a substantial period of time and some form of contrary practice must have evolved during this period.
4. The Equality Detour. As a threshold matter, I wonder why the bench even bothered addressing the equality argument. It had already resolved that Section 377 violated the penumbral fundamental right of equality-dignity, which was sufficient ammunition for its conclusion that Section 377 was unconstitutional. In fact, it is for this reason that the bench felt it was unnecessary to deal with the argument based on the fundamental freedoms in Article 19. Could not the same approach have been taken with respect to equality?
In my view, the equality section is Naz Foundation’s Achilles' heel. The discussion on equality begins with the bench conceding in paragraph 94 that Section 377 is facially neutral. Yet, the bench points out that the “sexual acts, which are criminalized are associated more closely with one class of persons, namely the homosexuals as a class” (emphasis mine). I’m afraid this part of the judgment is not completely watertight and may not convince an appellate court. As a textual matter, the section proscribes sexual acts involving carnal intercourse that are considered “unnatural” irrespective of whether they involve same-sex or opposite sex partners. Case law under the section shows that it has been used in prosecutions involving oral sex and anal sex. There is ample evidence to suggest that anal sex is not an exclusive homosexual preserve; many heterosexual couples routinely engage in it. And oral sex is commonly practiced by both same-sex and opposite sex partners. Therefore, this aspect of Naz Foundation could be particularly vulnerable on appeal.
To bolster its reasoning that Section 377 is hostile to gays, the bench cites Justice O’Connor’s opinion in Lawrence in which she held that the underlying statute in question targets homosexuals as a class. But what it fails to mention is that the Lawrence statute only targeted homosexual conduct; it was even called the “Texas Homosexual Conduct Statute.” This made it convenient for Justice O’Connor to find it violated the U.S. Constitution's equal protection clause. It is for this reason, that Justice O'Connor was able to file a concurring opinion in Lawrence (Justice Kennedy's majority opinion in that case was completely silent about equal protection). In fact, O'Connor remained unrepentant for her previous opinion in the Bowers Case, where the underlying statute, like Section 377, applied to both same-sex and opposite-sex conduct.
I entirely agree with Naz Foundation that, in implementation, Section 377 “does end up unfairly targeting a particular community.” However, I'm skeptical about whether the Supreme Court will accept this argument. There do not appear to be many cases in which a facially neutral law has been successfully challenged on the ground that it is enforced in a discriminatory manner. Perhaps, I'm influenced by what happened in Rathinam with respect to Section 309 of the Penal Code, which criminalizes an attempt to commit a suicide. Initially, the Bombay High Court struck down Section 309 on the ground of equal protection. It found that the provision did not provide adequate guidance and was susceptible to arbitrary application. However, the Andhra Pradesh High Court took a contrary view. The Supreme Court agreed with the Andhra Pradesh High Court, both in Rathinam as well as in Gian Kaur (which overruled Rathinam). Justices in both cases rejected the challenge to Section 309 on equal protection grounds. Don’t get me wrong; I strongly believe that Section 377 has a disparate and invidious impact on gays. I just don't think that this argument could be a winning one under prevailing Indian jurisprudence. I'll be very happy to be proved wrong.
5. The Dynamite of Non-Discrimination. I am still trying to unravel the true meaning of the high court’s holding on Article 15 (1). However, I must applaud the bench's precedent-setting conclusion that sexual orientation is a valid anti-discrimination marker under Article 15 (1). In fact, this aspect of Naz Foundation is sheer dynamite! If this holding is sustained on appeal by the Supreme Court, it has the potential to fundamentally reorder the Indian legal system. Just think about it. Article 15 (1) makes it illegal for the State to discriminate on various grounds, such as sex, place of birth, race, caste, or religion. If sexual orientation is now included as one of these prohibited grounds, several existing laws, including those that define marriage as being between a man and woman, are in constitutional jeopardy. Regretably, on this issue, the homophobic appellants before the Supreme Court do have a point.
6. Obiter on Horizontal Discrimination. In my view, the bench went on a “frolic of its own” by declaring in paragraph 104 that Article 15 (2), the Constitution's public-access provision, proscribes “horizontal discrimination” on the ground of sexual orientation. This was a completely unnecessary observation that had nothing to do with the underlying case. The writ petition did not contain any allegation about private discrimination against gays, and there does not appear to have been any substantial discussion of this issue during oral arguments. Therefore, I can only conclude that the bench misdirected itself to address this non-issue. Accordingly, I believe that the bench’s observations regarding Article 15 (2) are only in the nature of obiter.
7. Strict Scrutiny. Just as I take issue with Naz Foundation’s use of the “compelling state interest” standard under Article 21, I have serious reservations about its wisdom in needlessly importing the American doctrine of strict scrutiny to invalidate Section 377. As the bench admits in paragraph 110, the use of strict scrutiny has been decisively rejected by the Supreme Court in Ashok Kumar Thakur. Yet, Naz Foundation insisted that it could still use strict scrutiny based on the Supreme Court’s decision in Anuj Garg. The bench reasoned that, upon a “harmonious construction” of the two Supreme Court judgments, strict scrutiny would not apply to affirmative action, while it would to apply to disadvantaging measures targeting a vulnerable group based on personal characteristics.
I’m afraid I find the high court’s reasoning on this issue to be rather disingenuous for several reasons. First, Anuj Garg was a decision of a two-judge bench while Ashok Kumar Thakur was a constitution bench decision. Second, Ashok Kumar Thakur was the later decision, handed down several months after Anuj Garg; and ordinarily the subsequent larger bench decision should carry more weight than an earlier decision from a smaller bench. Third, there is nothing in Ashok Kumar Thakur to indicate that its refusal to apply strict scrutiny was only confined to affirmative action. Fourth, how do we reconcile the high court’s cute reasoning with the Supreme Court’s 2003 decision in John Vallamattom. The case involved the constitutionality of Section 118 of the Indian Succession Act (affecting the right of Indian Christians to make so-called death-bed charitable dispositions. It was not an affirmative action decision by any stretch. Yet, in it, Justice Khare said he was skeptical about the application of strict scrutiny in India.
I have the same concerns about using strict scrutiny to evaluate equality and equal protection claims under our Constitution as I do about using the “compelling state interest” standard to assessing fundamental rights violations under Article 21. The two American doctrines are, in a sense, two sides of the same coin. Strict scrutiny was invented to scrutinize classifications because the U.S. Constitution does not contain anti-discrimination provisions, such Articles 15 and 16, of our Constitution, and it requires a showing of a compelling state interest in order for a suspect classification to be upheld.
In India, our Supreme Court has generally applied rational-basis review to evaluate most classifications. From a tactical perspective, the bench could have applied this long-standing test and concluded, based on the evidence, that Section 377 flunked it. This would have been a better strategy, in my view, than subjecting Section 377 to a more stringent test, whose application is likely to be challenged before the Supreme Court.
8. Concluding Observations. Naz Foundation’s use of the severability-in-application doctrine is certainly a creative extension of the Supreme Court’s decision in Chamarbaugwala (ironically, that case advocated caution in the use of American precedents). However, I should note that the Supreme Court’s observations on severability, which Naz Foundation relied upon, were made in the context of a legislature’s competence to enact a statute based on the division of powers in the Seventh Schedule. They did not involve a statute that was found unconstitutional for violating fundamental rights. Be that as it may, Naz Foundation effectively used Chamarbaugwala to retain Section 377 on the statute book even though it was found to be unconstitutional on several grounds. I have some concerns about this Solomonic solution, but I respect the high court’s pragmatic decision under the circumstances.
Finally, my friend and classmate, Ramaswamy, offers an interesting alternative road that the high court could have taken in resolving this matter. According to him, the case could have been presented as a matter of statutory interpretation rather than constitutional law focusing on the phrase “carnal intercourse against the order of nature” in Section 377. The high court could have ruled that sex between consenting same-sex adults was not “carnal intercourse against the order of nature.” I leave it to you, our readers, to tell us what you think of this idea.

Is the Naz Foundation decision the Roe v. Wade of India?

2009-07-10T08:59:00.001+05:30

Is the Naz Foundation decision the Roe v. Wade of India?
There are surprisingly few constitutional cases in India which have had the same symbolic power that cases like Roe v. Wade (affirming the right of abortion) or Brown v. Board of Education (dissolving racial segregation in schools) have had in the political history of the United States. For sure, there are a number of important constitutional cases which have contributed significantly to the democratic history of India. Kesavananda Bharati’s espousal of the basic structure doctrine, Maneka Gandhi’s introduction of due process in Art.21, but these cases seem to have an appeal largely within the legal fraternity. They are also cases where the relief sought by the petitioners have had little to do with the final outcome of the case, and it is highly doubtful whether his Holiness Kesavananda Bharati had any investment in the long term impact of the basic structure doctrine (not to mention that Kesavananda Bharati just doesn’t roll of the tongue as easily- in terms of recall value). Is it possible then that Naz Foundation v. Government of Delhi is the first equivalent of a case whose name conjures up the history of particular struggle, celebrates the victory of a particular moment and inaugurates new hopes for the future.
Before we argue about why Naz has the potential to become a Roe v. Wade, it would perhaps be useful to establish what Roe v. Wade and Brown v. Board of education did for the history of struggles for rights in the US. R v. Wade stands as the dividing line between the Liberals and the Conservatives in the US and in the third presidential debate between Obama and McCain, a significant portion of time was spent discussing judicial nominations, particularly to revisit Rv. Wade. Every Republican president since 1980 has asked for an overturning of Roe v. Wade.
R v. Wade emerged at a time when many feminists and women’s rights activists were encouraging State legislatures is to liberalise their abortion laws. Given the rather haphazard success in the arena of legal reform, another strategy was to shift the battle to the courts and success in cases like R v. Wade made it irrelevant whether or not there was a success in policy reform. There have been a fair number of critics of this strategy too, with people arguing that political reform is generally more desirable and longer lasting than judicial reform. Ruth Ginsberg for instance has argued that Roe v. Wade actually halted a political process that has been moving in a reform direction.So the first characteristic of cases like Wade is the use of the judiciary and innovative interpretations of the Constitution to settle a controversial area and establish rights for unpopular minorities or to establish a ruling against public morality as defined by the majority. But if this were the only criteria then there would be many more cases with the same appeal and power as Wade and Brown. Both Wade and Brown represent moments in the history of struggle that finally culminated in a judicial victory. These victories have been higher significant because they generally exist in the realm of what we could call the radical politics of impossibility. What would have been impossible to imagine is suddenly made possible through an innovation that does not merely change the conditions of the group whose rights and demands are in question, but changes the horizon of possibility for the law and for constitutional interpretation itself.
Thus Roe v. Wade did as much for the expansion of the idea of privacy as it did in establishing the right of women to terminate their pregnancy. These cases are also marked by the fact that they often open a Pandora’s box and are in that sense not the culmination of struggle, but the beginning of one. But even these two reasons would not be enough to establish what is special and enduring about Brown and Wade. These are after all matters of public reason, and public reason rarely the accounts for why things have a special place in our hearts. It therefore might be appropriate then to turn to reasons of the heart to see why something becomes a Roe v. Wade.When Obama was a senator, he voted against the confirmation of John Roberts, the current chief justice of the United States, and a well known conservative. In his speech in the Senate, Obama said Justice isn’t about some abstract legal theory or a footnote in a casebook. It is about how our laws affect the daily reality of people’s lives – whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. Obama added that while he would agree with 95% of the decisions arrived at by Roberts, ‘ in those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decision about whether affirmative action is an appropriate response to the history of discrimination or whether the general right of privacy encompasses a more specific right for women to control their reproductive decisions, the critical ingredient is supplied by what is in the judge’s heart.
The real success of Wade, Brown and Naz foundation can then be measured not only by their contribution to democratic ethos or the Jurisprudence that they inaugurate but by the tears that they provoke. The spontaneous outburst of emotion on the pronouncement of the Delhi High Court, the tears of joy that people had while listening to the judgment in Court hall No. 1 of the Delhi High court, or from people following it on the news, the telephone calls with people wishing each other happy Independence Day after the judgement – these are the things that legendary cases like Wade and Brown are made of. And these are all the ingredients that seemed to be present in the Naz foundation decision. When was the last time you remember crying about a constitutional decision? Naz foundation decision has also enabled the rekindling of our romance with a text whose recent career has left one a little brokenhearted – the constitution. Justice Pathak in Kesavananda Bharati says that “the constitution is not an arena of quibbling by lawyers with long persons. It is a Heritage or possession and it should be the object of your love”.The Naz foundation judgement once again makes the constitution worthy of our love and affection. It is of course too early to say whether this romance with Naz will stand the test of time, and like all relationships there will be disenchantment, disgruntlement and perhaps even cynicism that will creep in, but for now let us enjoy the slightly trippy lightheadedness that only a new love is capable of providing and toast the much delayed but very welcome arrival of the Roe v. Wade of India.
http://kafila.org/2009/07/06/is-the-naz-foundation-decision-the-roe-v-wade-of-india/

Kalpana Kannabiran on the DHC Judgment

2009-07-10T08:55:00.001+05:30

Date:06/07/2009 URL: http://www.thehindu.com/2009/07/06/stories/2009070655810800.htm
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Opinion - Leader Page Articles From ‘perversion’ to right to life with dignity
Kalpana Kannabiran
The Delhi High Court judgment makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.
“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.” — B.R. Ambedkar quoted in para 79 of the Naz Foundation judgment.
The recent judgment of the Delhi High Court in the Naz Foundation versus Government of NCT of Delhi and Others is a milestone in the jurisprudence on diversity and pluralism in India. Importantly, it also inaugurates intersectional jurisprudence that examines questions of constitutionalism in relational terms that underscore inclusiveness. By this token then, it is not merely a judgment that bears significance for the rights of lesbian, gay, bisexual and transgender peoples (LGBT). It makes the articulation of LGBT rights a torchbearer for a more general understanding of discrimination, oppression, social exclusion and the denial of liberty, on the one hand, and the meaning of freedom and dignity, on the other.
The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity launched on March 26, 2007 were drafted by experts from 25 countries representative of all regions of the world. These principles delineate in painstaking detail the obligation of states to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. On December 18, 2008, the United Nations General Assembly was presented with a statement endorsed by 66 states from around the world reaffirming in substance the Yogyakarta principles. It is these international efforts along with the movement for LGBT rights within India that provided the context and arguments for the decriminalisation of homosexuality.
Drawing on Dr. Ambedkar, the court rejected the argument that homosexuality was contrary to public and popular morality in India, upholding constitutional morality instead, the diffusion of which was contingent on Dr. Ambedkar’s ideas of notional change, as evident in the lines quoted above. To quote from the judgment: “The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality” (para 80). Linked to this is the observation of the Court on the question of the horizontal application of rights, with specific reference to Article 15(2), a barely remembered but critical part of Article 15: No citizen shall obstruct another from access to public places on grounds of caste, sex and other specified grounds (para 104). This purposive and intersectional reading of Article 15(2), hitherto restricted largely to practices of untouchability vis-À-vis Dalits, opens out an important strategy in constitutional interpretation.
Applying the U.N. Human Rights framework to an understanding of sexual orientation and gender identity, the judgment sets out three categories: (a) non-discrimination; (b) protection of private rights; and (c) the ensuring of special general human rights protection to all, regardless of sexual orientation or gender identity.
Perhaps the most important issue the judgment addresses is the meaning of “sex” in Article 15(1) of the Constitution of India: “The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Does the term “sex” in this context refer to attribute or performance? Is sex to be applied in a restricted fashion to gender or can the multiple resonances of its common usage be taken into account, so that sex is both gender (attribute) and sexual orientation (performance)? This is particularly significant because, as the judgment demonstrates through an extensive review of case law and principles from different parts of the world, gender and sexual orientation are an intrinsic and inalienable part of every human being; they are constituents of a person’s identity. In the words of Justice Sachs of South Africa, the constitution “acknowledges that people live in their bodies, their communities, their cultures, their places and their times” (Sachs J. in The National Coalition for Gay and Lesbian Equality v. The Minister of Justice). It is this composite identity of every person that is affirmed through a nuanced reading of “sex” in Article 15(1): “We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15 (Para 104).”
Justice P.N. Bhagwati’s delineation of the right to dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, that “the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life, … expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings,” provides the starting point for the discussion on the importance of self-respect, self-worth and privacy to human social life, recognised nationally and internationally. And privacy is particularly important in the area of sexual relationship where the thumb rule is simply that “[i]f, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy (Paris Adult Theatre I v. Slaton, (413 US 49 (1973), page 63).”
The criminalisation of homosexuality, the judgment says, by condemning in perpetuity an entire class of people, forcing them to “live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery” denies them “moral full citizenship (para 52).” Because Section 377 is aimed at criminalising private conduct of consenting adults, the court held that it comes within the meaning of discrimination, which “severely affects the rights and interests of homosexuals and deeply impairs their dignity(para 93).” It is “unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India (para 98).”
The right to public health is another aspect of human rights that is seriously undermined through the criminalisation of same sex behaviour. There are two parts to this right, both of which lead back to the fundamental right to life under Article 21. The first is the right to be healthy. In this context, the concerns of the National AIDS Control Organisation (NACO) are pertinent. Fear of the law-enforcement agencies obstructs disclosure, which in turn impedes HIV/AIDS prevention programmes and increases the risk of infection in high-risk groups.
The second part of the right to health is more expansive and includes the right to control one’s health and body, the right to sexual and reproductive freedom, the right against forced medical treatment and the right to a system of health that offers equality of opportunity in attaining the highest standard of health. While several documented testimonies of LGBT persons speak of the treatment of their sexual orientation as a psychiatric/mental disorder, the judgment importantly affirms the findings worldwide that sexual orientation is an expression of human sexuality — whether homosexual, heterosexual or bisexual. “Compelling state interest,” instead of focussing on public morality, the judgment says, “demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon (para 86).”
Asserting that there is no presumption of constitutionality where a colonial legislation is concerned, the judgment holds that Section 377 fails the test of “strict scrutiny” which would require proportionality between the means used and the aim pursued. And when it is a question of “matters of ‘high constitutional importance’” like the rights of LGBT persons, the courts are obliged to discharge their sovereign jurisdiction, in this case, reading Section 377 down to apply only to child sexual abuse.
It is pertinent to point out here that the Andhra Pradesh (Telangana Areas) Eunuchs Act specifically targets Eunuchs and Hijras in far more direct ways than Section 377 does. We hope that the momentum of the movement for LGBT rights will turn its full force on obsolete legislation like this as well, so that transgender communities in areas where such laws are in force begin to enjoy the fullest freedoms and life with dignity.
(Kalpana Kannabiran is a sociologist based in Secunderabad.)
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LASSnet celebrates a historic judgment

2009-07-03T14:20:00.002+05:30

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

2009-07-03T13:58:00.002+05:30

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

Open Letter on the Equal Opportunity Commission Bill

2009-06-24T14:23:00.001+05:30

To sign this letter, please click here, or email the Centre for the Study of Social Exclusion. Additional resources (including comparative legislations) are available here.
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22nd June 2009

The Minister for Minority Affairs,
Government of India
Paryavaran Bhavan, CGO Complex, Lodhi Road,
New Delhi 110 003

Respected Sir,
[Re: Equal Opportunity and Diversity]

In her address to Parliament on 4 June 2009, the Hon’ble President promised the constitution of an Equal Opportunity Commission to combat discrimination. We welcome this announcement, and write to you to further the public debate on equality of opportunities.

As you are aware, the Rajinder Sachar Committee’s ‘Report on Social, Economic and Educational Status of the Muslim Community of India’ (2006) recommended the constitution of an Equal Opportunity Commission to look into the grievances of deprived groups, and that the idea of providing incentives for diversity should be explored. Two expert committees under Dr. Madhav Menon and Dr. Amitabh Kundu were constituted to consider these recommendations respectively. The Menon Committee Report (2008) proposed an Equal Opportunity Commission Bill to prohibit discrimination against ‘deprived groups’ defined on certain grounds such as sex, disability, religion, caste, language etc. The Kundu Committee Report (2008) recommended the constitution of a Diversity Commission to oversee the incentivisation of diversity in education institutions, employment establishments and housing societies. The proposed ‘diversity index’ is sensitive to religion, caste and sex.

These recommendations represent a paradigmatic shift in India’s approach to equality. Moving beyond an exclusive focus on reservations, they explore a combination of antidiscrimination and diversity promotion measures to pursue social justice. They also recognise that discrimination takes place on multiple grounds, and that compartmentalising suffering through group-specific measures may spawn politics of resentment and competition. Finally, they transcend the divide between public and private actors and apply equally to all. Yet, the obligations they seek to impose on private actors are no more onerous than those imposed on their counterparts in many liberal democracies.

For these reasons, we laud the recommendations and support the proposed measures for equal opportunities and diversity. However, the draft proposals leave too many unresolved issues for the Commission to sort out in the future. We think that this is a recipe for much litigation. Rights and obligations, insofar as it is possible, should be clearly laid down in the legislation itself. We make the following suggestions towards broadening the public debate on these proposals:

A. Interlinking equal opportunity and diversity:
(i) Antidiscrimination and diversity promotion are related ideals. They should form part of a single ‘Equality Bill’ with a single regulatory and enforcement commission. Distinct bodies for monitoring the prohibition on discrimination and promotion of diversity is not only wasteful, but may result in counterproductive turf-wars.
(ii) The connection between the ideas is not merely institutional but also conceptual: the ‘diversity gap’ in any establishment should be relevant to (but not determinative of) the adjudication of complaints of discrimination against that establishment.

B. A general duty to reduce inequality:

(iii) The objective of reducing socio-economic deprivation should be taken into account by all public bodies (widely defined to include not only bodies established by the Constitution or any law, but also any other bodies performing public functions) while framing policy in their respective fields of activity.

C. Scope of protection against discrimination:

(iv) The list of grounds on which discrimination is prohibited in the Menon Committee Report includes ‘sex, caste, language, religion, disability, descent, place of birth, residence, race or any other...’ ground. While we welcome an open-ended list in order to accommodate legitimate demands in the future, other autonomy-infringing grounds like ‘pregnancy, sexual orientation, gender identity, occupation, skin-colour, political opinion, age, membership of trade unions or other associations, number of children, tribe, marital status’ should also be included.
(v) The ‘deprivation index’ should include political, social, cultural and material deprivation, evidenced by inadequate representation of the group in public institutions, violence and hostility faced by its members, prejudice and negative stereotypes prevalent against the group, and its economic, social and educational backwardness.
(vi) The legislation should have a clear statement prohibiting ‘direct discrimination’ or ‘indirect discrimination’ against, and ‘harassment’ or ‘victimisation’ of, any member of a deprived group defined by any of the protected grounds. These terms should be clearly defined. Discrimination based on ‘food preference’, when it has a disproportionate impact on a deprived group, should be expressly provided as an instance of indirect discrimination.
(vii) The legislation should clearly provide that the claimant does not have the onus of proving discriminatory intent.
(viii) Direct discrimination, as a general rule, should not be justifiable. Any exceptions (for example, medium of instruction in schools vis-a-vis language discrimination, or age of majority vis-a-vis age discrimination) should be specifically provided in the statute. Indirect discrimination may be justified only if the impugned measure is a proportionate means of achieving a legitimate objective—mere reasonableness of the measure should not be sufficient. Harassment and victimisation should not be justifiable under any circumstance.
(ix) The sectors in which discrimination is prohibited should not be restricted to employment and education. We agree that a phased introduction of prohibition, as recommended by the Menon Committee Report, may be desirable for reasons of feasibility. However, given the prevalence of discrimination in the housing sector, its exclusion from the immediate scope of the legislation is not warranted.
(x) All public bodies (widely defined to include private bodies performing public functions) and political parties should be required to refrain from discriminating in all their activities.

D. Scope of diversity promotion:

(xi) The ‘diversity index’ proposed in the Kundu Committee Report is sensitive to sex, religion and caste. We suggest that tribe and language should also be valid grounds for formulating a diversity index.
(xii) A clear statutory obligation to reduce diversity gap should be imposed on all public bodies (widely defined to include private bodies performing public functions) and other establishments that contract with governments.
(xiii) Diversity promotion should be a precondition for all government subsidies, grants, contracts etc, not only at the central level, but also at the state and local level. Establishments with narrower diversity gaps should get preferential access to governmental grants etc.
(xiv) Bodies and establishments covered by the two preceding clauses should publish their diversity gaps and their plans to promote diversity. Citizens should also have an enforceable right to this information.
(xv) In case of establishments not covered above, the right to information regarding their diversity gap should nonetheless be available to their employees/ residents/ applicants/ students etc.

E. Enforcement Mechanism:

(xvi) The single Equality Commission should be independent of political interference, but subject to political scrutiny and judicial review, while formulating the deprivation and diversity indices. Bipartisan appointment, involvement of civil society and transparency obligations on the lines of recently constituted bodies such as the Central Information Commission should be considered.
(xvii) Draft deprivation and diversity indices should be published on the Commission’s website and elsewhere for public debate before finalisation. Reasons and evidence for the identification/non-identification of any group as ‘deprived’ should also be publicly available.
(xviii) Relationship with the SC/ST Commission, Backward Classes Commission, Minorities Commission, National Commission for Women, and the National Human Rights Commission should be clearly specified. Emphasis should be on co-ordination and data sharing. The Equality Commission is not based on any single identity and its proposed mandate is distinct from these pre-existing commissions. Yet, it can learn from their experiences—legislation should facilitate this institutional learning.
(xix) The proposed Equality Commission in the Menon Committee Bill has extensive powers for investigation, data gathering, auditing, advocacy and advisory functions. However, the recommendatory nature of the orders and ‘codes of practice’ limits the effectiveness of the Commission. Further, while reliance on voluntary compliance and emphasis on mediated settlements is entirely commendable, it fails to elevate the ‘equal opportunities’ to the status of ‘rights’. The lack of effective enforcement machinery thus, dilutes the larger mandate of the Commission and needs to be remedied at the very outset.
(xx) The scope of membership of Facilitation Centres (provided for in the Menon Committee Bill) should be widened, and its powers and functions should be clarified and strengthened.
(xxi) Section 39 (b) in the Menon Committee Bill elevates the ‘Equal Opportunity Practices Code’ to the level of a “Standing Orders” under the Industrial Disputes Act, thus making it binding and enforceable. However, the single Equality Bill should clarify that the scope of establishments covered by it is wider than that under the Industrial Disputes Act, and should also provide for a mechanism for enforcement of these Codes in establishments that do not fall within the scope of the Industrial Disputes Act.
(xxii) Likewise, the powers to investigate and audit in Sections 23-25 and Section 27, should culminate in effective action in the event of widespread discriminatory practices, or victimisation.
(xxiii) The Menon Committee Report envisages a group-driven complaints model rather than an individual-driven one. We suggest that in addition to group rights, individual victims of discrimination should be given a right to mandatory orders, injunctions, declaratory orders, compensation, reasonable accommodation, protection orders against harassment and against victimisation for making a complaint, and the right to information about the diversity gap in their establishment.
(xxiv) In case of direct discrimination, harassment or victimisation by public bodies, part of the compensation amount should be recovered from the salary of the person(s) responsible for such discrimination, harassment or victimisation.

These measures are too important to be passed in haste and without wider public debate. We hope you will give these suggestions as well as the experience of jurisdictions with comparable legislations (such as South Africa, Canada, the United Kingdom, the European Union and the United States) due consideration and circulate the draft of a single ‘Equality Bill’ for further public debate.
In anticipation,

Yours Sincerely,

CC: The Prime Minister
Government of India

CC: The Minister for Law and Justice
Government of India

(Text drafted by Tarunabh Khaitan for CSSE, NLSIU, with inputs from Roopa Madhav, Kamala Sankaran and Usha Ramanathan)

2009-06-13T00:28:00.001+05:30

Law Text Culture
CALL FOR PAPERS
Volume 14, 2010

Law’s Theatrical Presence frame, rhetoric, image, body, appearance

Guest editors: Marett Leiboff and Sophie Nield

This issue of Law Text Culture seeks to explore law through the lens of theatrical and performance theory and to read theatre through the paradigm of law. The ‘theatrical’ of which we speak is not that of words or playtexts, drama or literature, nor is it solely the ‘performative’ as a universal referent to any form of enacted public practice. The field of performance studies has certainly expanded in past decades into social and political analysis, but at the expense of the potentially useful theatrical frame. The revitalised field of theatricality, rather than pivoting around acting, costumes, props and stages, allows us to foreground ideas of frame, the body, appearance, rhetoric, and image as key intersections for understanding the work of the law in producing, shaping and staging justice.

The line between reality (truth, perhaps) and its representation is an energised question in theatre and performance studies currently, and one of the key theoretical perspectives being drawn on is Agamben’s modelling of jurisprudence in relation to the current legal states of exception, public resistance and terror. The relationship of the law and the theatre as twin sites of appearance and representation is, we hope, provocative: the ‘frame’ of the theatre and the ‘being framed’ of the law may speak to each other in useful ways.

Law and theatre more infamously intersect where law is used to regulate and repress. Here, it is law that frames actions, bodies, images and events, through the regulation of events, especially those involved in resistance. How law then responds to these actions is a prime site of contention, in particular where these events are filmed and recorded. A personal decision to frame, film, record and display lives online provides a challenge to law, where the boundary between action as real and action as constructed becomes blurred and confused in the online world. Can delineating actions as ‘theatre’ perhaps be a manoeuvre through which to render some sites as ‘real’ rather than commercial, if issues of copyright infringement or privacy needed to be addressed? Theatre as a practice and as a concept may, we hope, be useful here to the law in providing a means by which boundaries can be set where everyone and everything is engaged in performance.

The places in which courts and tribunals sit are ‘theatrical’: spaces to watch and be watched, where ritual and rhetoric may be used to impress judge and jury; where probable and improbable narratives of events are constructed out of speech acts and stylised dialogue. Theatre theory may, we propose, here be used to uncover the limitations of these narratives. We invite contributions exploring how the work of theatre theory - Brecht and Meyerhold, Grotowski and Artaud, Piscator and Schechner, theatre anthropology and Dario Fo, to name a few - might be drawn upon as a ‘theatrical jurisprudence’.

There are also several real-world contexts in which law and theatrical practice are already working in tandem: the recent spate of ‘tribunal’ plays in the UK which often temporally overlap the already theatricalised legal processes which they seek to reproduce; the involvement of performance scholars in the management of restorative justice; the controversial use of verbatim ‘testimony’ of displaced persons, refugees and victims of war in theatre productions.

In order to explore these, and other, questions, we seek scholarly articles, artworks, reviews, and creative writing from legal and theatre studies scholars and practitioners on topics including, but not limited to:

Performance and restorative justice in indigenous contexts
'Tribunal theatre' and the restaging of public inquiries and war crimes tribunals
Theatricality and politics
Theatrical/legal appearance and representation
Legal orators and rhetoricians
Indigenous law and practice, performance and story telling
Theatre theory as jurisprudence
Melodrama
Theatrical licensing and censorship
Histories of theatrical court cases
The use of theatre in teaching law
Theatre techniques in dispute resolution
All scholarly articles will be subject to independent peer review, while all other submissions (artworks, reviews and creative writing) will be considered by the guest editors in consultation with the Managing Editor of Law Text Culture.

Abstracts/expressions of interest: 30 June 2009

Workshops:
London October 2009
Wollongong December 2009

Deadline for draft articles February 2010
Publication December 2010

For information please contact guest editors:

Marett Leiboff Sophie Nield
marett@uow.edu.au sophie.nield@rhul.ac.uk
Faculty of Law, University of Wollongong
Northfields Avenue
WOLLONGONG NSW 2522 Department of Drama and Theatre
Royal Holloway
University of London

LASSnet Authors: Kamala Sankaran

2009-06-09T14:23:00.001+05:30

Announcing Kamala Sankaran's new book
Freedom of Association in India and International Labour Standards
http://www.lexisnexis.in/freedom-of-association-in-india-and-international-labour-standards.htm

LASSNET Authors: Aisha Gill's co-authored volume, forthcoming

2009-06-08T20:42:00.000+05:30

Violence Against Women in South Asian Communities
Issues for Policy and Practice
Edited by Ravi K Thiara and Aisha K GillForeword by Professor Liz Kelly CBE
Paperback, ISBN: 978-1-84310-670-8, 234mm x 156mm / 9.25in x 6in, 256pp, October 2009, £25.00, $44.95

http://www.jkp.com/catalogue/book.php/isbn/9781843106708

CFP: Socio-Legal Review

2009-04-26T10:08:00.001+05:30

Creating Student-Centric Space for Socio-Legal Writing

The ‘Socio-Legal Review’ is an initiative of the Law and Society Committee that hopes to inspire socio-legal writing among members of the legal and social science community. It aims at exploring themes relating to the interface of law and society and providing a platform for students and young scholars. The Committee is keen to give ‘law and society’ an expansive interpretation, thereby keeping its basic criteria for contributions simply that of high academic merit, as long as there is a perceivable link.

This would include not just writing about the role played by law in social change, or the role played by social dynamics in the formulation and implementation of law, but also writing that simply takes cognizance of legal institutions/ institutions of governance/administration, power structures in social commentary and so on. Through this effort, the journal also hopes to fill the lacunae relating to academic debate on socio-legal matters among law students.

This year’s Editorial Board has decided to continue with the policy of not imposing a theme. A contribution is eligible as long as fits in with the general mandate of the journal. The manuscript should be on any theme exploring the interface between law and the society. Each volume of the Socio-Legal Review consists of Articles, Comments and Laws’ Translations. Law’s Translations consists of shorter pieces designed to provide a glimpse into a new legal strategy, political initiative or advocacy technique applied in the field, a current problem or obstacle faced in legal reform or development work, or a new issue that has not yet received much attention and needs to be brought to light. This section is designed for the student researchers, legal practitioners, field staffers, and activists who often have the most significant insights to contribute, but the least time to write longer, scholarly articles.

The first issue of the ‘Socio-Legal Review’, published in 2005, carried the theme ‘Law and Marginalisation’. The first issue included contributions from Shail Mayaram (Senior Fellow, Centre for Study of Developing Societies, Delhi), Sivamohan Sumathy (University of Peradeniya, Sri Lanka), apart from contributions from within the National Law School. Themes ranged from ‘Poverty, Migration and Memory in the Mega-City’, ‘Migration and ‘Displacement of Sri Lankan Tamil Women’, ‘Globalisation and the City-zen’ to ‘Reservation Policy of India and Rawls’ Theory of Justice’ and ‘Contours of the Dalit Movement’.

The second volume, published in 2006, has articles by W. T. Murphy (London School of Economics) and Rajeev Dhavan (Advocate, Supreme Court). As a theme was not imposed on contribution, writing ranged from subjects as varied as the pharmaceutical industry and patents to the impact of genetics on theories of crime and punishment. The third volume of the journal, released in August 2007, includes contributions by Dr. Fiona Kumari Campbell (Griffith University) and Dr. Narnia Bohler-Muller (Nelson Mandela Metropolitan University, Port Elizabeth), besides contributions from law students. The fourth volume released in August 2008 contains contributions by Roger Cotterell and Ofer Raban as well as student articles. This volume introduces a new section titled ‘Conversations’ in which Roger Cotterrell and Ofer Raban respond to Brian Tamanaha’s thesis on the instrumentality of law. Prof. Ron Harris contributes with a piece on political parties in Israel. We are happy that we have been able to attract student writing on South Asia as this volume has articles by students at Yale Law School, Harvard Law School and the National Law School of India University.

In May 2008, the Socio-Legal Review, in conjunction with the Law and Society Committee at the National Law School, conducted a workshop on ‘Encouraging Socio-Legal Writing on University Campuses’. Attended by members of our Advisory Board such as Upendra Baxi and Nivedita Menon and young academics and students, the enthusiastic discussion at the workshop bodes well for the future of socio-legal writing in the region.

Since 2007, Socio-Legal Review has been fortunate to have been funded through a generous three year grant from the Modern Law Review. This year, based on an assessment of the journal, the editorial board of Modern Law Review has renewed the funding for the next three years. This grant has been instrumental is providing us financial security and permitting us to concentrate our efforts on improving the journal and indeed, working on our mandate of creating a student-centric space for socio-legal writing in South Asia.

Write to:

Nirupama Pillai

for the Editorial Board, Socio-Legal Review

slr@nls.ac.in

Prashant Bhushan: Class Bias of the Judiciary

2009-04-12T15:16:00.000+05:30

Misplaced Priorities and Class Bias of the Judiciary Prashant Bhushan
It is clear from the recent record of the higher judiciary that the imperative of upholding civil liberties, socio-economic rights, and environmental protection has been subordinated to agendas such as the “war on terror”, “development” and satisfying corporate interests. Far from remaining faithful to the motives that resulted in the institution of public interest litigation, the Supreme Court has tended to act against the interests of the socio-economically backward.

http://epw.in/epw/user/viewAbstract.jsp

Post From Yogendra Yadav

2009-04-11T14:35:00.002+05:30

Applications Invited: Summer Workshop on Quantitative Methods in Political Science

Lokniti - Programme for Comparative Democracy, Centre for the Study of Developing Societies (CSDS), Delhi, in collaboration with Indian Institute of Advanced Study (IIAS), Shimla invites candidates to apply for a two week Summer Workshop on Research Methodology: Analyzing Quantitative Data on Indian Politics to be held at Shimla from Monday, 15th June 2009 to Saturday, 27th June 2009. Research training in Political Science remains one of the weakest aspects of learning for any student in India. Keeping this in view we plan to bring together a group of young political scientists with the aim of providing them an opportunity to improve their skills in quantitative analysis. While some of our mid-career colleagues would be invited to attend the summer school, we will select candidates from across the country for the limited seats that are available through a process of competitive selection. In this Summer School there will be a special emphasis on making sense of quantitative data of both aggregate nature and survey data for analysis of Indian politics. The selected participants will be given a set of readings before they come to attend the workshop and will be expected to attend lectures and practical data analysis sessions. This is the Third Summer School being organized by CSDS and IIAS beginning in 2007. Some of the leading scholars working on empirical methods in Political Science have been involved in designing this summer school and will act as resource persons. These include Pradeep Chhibber (University of California at Berkeley), Peter deSouza (IIAS, Shimla), Irfan Nooruddin (Ohio State University), Yogendra Yadav (CSDS), Suhas Palshikar (University of Pune) and Sandeep Shastri (IACT). We invite the following categories of candidates to apply for this workshop: a. Teachers of Political Science in colleges and Universities who are working on empirical subjects and would benefit from further training.b. Research students of Political Science who are working on empirical themes for their M. Phil. or Ph. D. dissertations and can benefit from further training.c. Any other person (including those from outside Political Science and outside academia) who are interested in making sense of politics by analyzing quantitative data. We would give preference to young scholars. We have only about 16 seats to be filled through selection and we expect a tough competition. Please send your detailed CV with a statement of research interest (those already registered for M. Phil. or Ph.D. should clearly mention the topic of dissertation along with a brief summary of the objectives and methodologies used) in about 500 words. Applicants should also visit our website http://www.lokniti.org/index.htm; access the questionnaire used for National Election Study 2004 and write a 500 word Note on a research question based on this questionnaire that interests them. Selection for the workshop will be made on the basis of the two write-ups submitted by candidates as mentioned above. The last date for receiving the nomination/application is 23rd March 2009. We will not entertain any nominations/applications received after the above-mentioned date. The Summer School is sponsored by the IIAS and the Institute will meet the travel expenses (Train AC II or its equivalent) of the participant from his/her place of residence to Shimla both to and fro. IIAS will also provide free accommodation and food during the Summer School. Please note that this is a full time residential training course and candidates admitted to the workshop are expected to stay at the Institute and engage in full time work on all days during this period. Please send your nominations/applications by email to banasmita@gmail.com or by snail mail to: The Co-directorLokniti: Programme for Comparative Democracy Centre for the Study of Developing Societies (CSDS) 29 Rajpur Road, Delhi 110 054. India

Post From Kalpana Kannabiran

2009-04-11T14:33:00.001+05:30

--------------------------

Tribute to Aman Kachroo
Kalpana Kannabiran

The murder of nineteen-year-old medical student Aman Kachroo is deeply saddening. Ragging has been rampant in the country, especially in colleges of professional education for at least four decades now. As a child, I remember my teenaged uncle discontinuing engineering in Bhopal in the mid 1970s unable to bear the humiliation of ragging. We have no count of the number of young students, mostly young men, who have lost their lives, taken their lives or made a choice between a professional education and staying alive and sane. It is certainly not a recent phenomenon. While we have a law in place now, it is hardly surprising that the law only comes into operation when there is a serious violation – like this one -- where the gravity of the offence puts it within the purview of criminal law.
The term “ragging” itself is problematic because it masks the fact that the acts it refers to are harassment and battery aimed at diminishing the dignity of those who enter the institution at a time when they are powerless and vulnerable. Fresh out of school, several moving out of the secure confines of home for the first time, groping to find their feet in the world after gaining entry into institutions that will transport them to their dreams, these youngsters are rudely awakened to the fact that violation of dignity and person is a defining trait of the world of their dreams.
The “sporting” way of dealing with it, we are told, is to grin and bear it. There are several that do. But does that mean they do not experience humiliation? How does that experience condition their behaviour and personality in their lives ahead? It is impossible that targeted violence will not leave scars. How many have actually been able to tell their stories? When they have, how many of us have heard them carefully and acted diligently – as parents, teachers and peers?
There are others, like Aman Kachroo, who refuse to submit themselves to such humiliation. And they, the human rights defenders in institutions of higher learning, face the hostility of a negligent, callous and thereby complicit administration on the one side, an indifferent faculty on the other and a murderous mob closing in on them. This mob, of course, needs no reason to be murderous. It is not violence that needs any justification or rationalization. While all freshers are vulnerable, those who come from vulnerable social backgrounds are doubly targeted. In Aman’s case, he came in through a quota, and yet he dared to stand up and speak. A little understood dimension of campus violence is that it reproduces the exclusions and silencing outside. And because campuses are closed spaces, insulated from the world outside, the normal protections that may be claimed and that might operate outside, are rejected in favour of non transparent conciliatory processes within that are simply incapable of tackling the gravity of these situations.
The use of the term “ragging” to describe these attacks that range from verbal to physical abuse and murder, aggravates the problem by detracting attention from its seriousness – teachers, parents, friends, in general all those in touch with victims, generally share the view that this is a rite of passage which will pass. The question we need to ask ourselves, however, is, even if it is a rite of passage, even if we are certain it will pass, why must we tolerate or condone intentional humiliation and battery?
This is scarcely the time for us to distance ourselves from the problem by saying it does not happen in our institutions. We need now to take responsibility for a systemic failure that has had tragic consequences, for which we are, as teachers especially, collectively responsible. I have personally heard the head of an institution tell freshers that while ragging is prohibited, before they lodge a formal complaint, they must also remember that it is the seniors who will eventually guide them through their academic work. It is not true either that it is only the “lumpen” elements among students who indulge in this behaviour. The brightest, most high performing students figure as kingpins in the lynch mob, providing intellectual grist to the “ragging” mill.
There are those that participate actively, and others who buy their peace and inclusion by being passive participant-spectators in these orgies. The participation in violence dehumanizes both equally. Can it be argued that having participated in an orgy of this kind, these students will be able to just move on and get their star grades, make it in life, be good teachers, friends and parents, and make peace with themselves? It is not my intention here to essentialise negative character traits or behavioural patterns as never changing and evil. Rather, what I do wish to suggest is that participation in willful violence against a group perceived as powerless, has a far-reaching impact on the perpetrators. We have not even begun to grapple with this because we have defined murderous violence down to flippant “teasing” that does not penetrate the surface of consciousness. Perhaps we need to think of how this bearing of witness as violators will influence their response to similar violence against those in their care a generation later?
If it is possible for students in an academic environment, to use the fact of belonging to the institution to inflict harm and suffering on an unimaginable scale on younger colleagues, it is time for us to reflect critically on the kind of education we impart and the students we are turning out. What does it tell us about the character of the institutions we have built?
Most urgent of all, it is time for students who are troubled by this violence to come together and form a national coalition against campus violence, making it known and clear to all parties on campuses across the country that there will henceforth be zero tolerance for any infringement of the right to dignity and education in an environment of freedom. It is only this exercise of associational freedom that will call into account all parties responsible for providing and safeguarding fundamental rights of students in vulnerable situations in educational institutions.
[Professor, NALSAR University of Law, Hyderabad]

Post From Olivia Killias

2009-04-11T14:32:00.001+05:30

Commission on Legal Pluralism
Call for Papers
for our Conference in Zurich, August 31 – September 3, 2009

The abstracts have to be submitted until May 15
For any further information, please contact the executive secretariat,
Dr. Markus Weilenmann, Alpenstreet 25
CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch.

Commission on Legal Pluralism
Theme for our Conference in Zurich
Legal Pluralist Perspectives on
Development and Cultural Diversity

In dealing with the impact of globalisation and transnational forms of law, the attention of a growing number of state institutions, policy makers, scholars and international organizations has focused on how law operates in a variety of settings. For current social, economic and political changes across the globe are manifested in vastly increased flows of commodities, people, capital, technologies, images and knowledge across local, regional and national frontiers. Attempts to monitor and regulate these changes make it necessary to reappraise the ways in which legal pluralism works and the forms that it adopts. In its conference the Commission will explore this issue from the perspective of studies of non-state and state laws and of the relationships which are possible between different laws in circumstances of legal pluralism. It will also focus on the many different ways in which laws operate and are utilised by social actors in these new circumstances. It will address the different ways in which discourses about rights and obligations are adopted by different constituencies and how local concerns shape the ways in which universal legal categories of rights are being implemented, resisted and transformed as well as reformulated in these processes. In examining these issues the Commission’s Session will highlight 1) the operation and effects of legal pluralism at a variety of levels; 2) the ways in which states regulate and respond to pluralism and its impact on communities and social actors; and 3) how other normative orders are invoked in response to processes of globalisation by various bodies such as indigenous people, minorities, non-governmental organisations and individuals. Topics for discussion may comprise, but need not be limited to, the role of international law, (including human rights) as well as the management of natural resources, gender issues, law, governance and legal pluralism, law, theory and justice, and the legal regulation of biogenetics.

Opening Session

Prof. Dr. Anne Griffiths, President of the Commission on Legal Pluralism,
School of Law, University of Edinburgh

Introductory Plenary Session

Responsible Prof. Dr. Shalini Randeria
Ethnologisches Seminar, University of Zurich

List of Panels

1 The challenges and prospects of intercultural
approaches to governance and globalization

Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Bruxelles

Much is being published and many conferences and seminars are held on Law, Governance and Sustainable Development. But the paradigmatic transition that these concepts reflect and contribute to shape is not sufficiently explored; neither are the stakes and the emerging challenges of a redefinition of the modalities of our living together where “state”, “government”, “development / growth” as central analytical tools start to be challenged. Especially what “globalization”, “governance” and “development” may mean from different cultural perspectives, how this “global concepts” are translated into “local settings”, what their hegemonic language and dynamics hide and suppress on the local planes are questions which remain not sufficiently explored.

Nevertheless the contemporary discourses on “globalization”, “governance” and “sustainable development” do permit to renew the ways we think about our living together.

“Globalisation” stresses the awareness that we are all sharing the same planet and are thus bound to all participate in our “collective voyage” on “spaceship earth”. “Governance” emancipates the shaping of our living together from the State monopoly and from the legal paradigm in its strict sense. Through its accent on responsibilization and participation of the actors in the elaboration and application of collective action, it points to a broadened, pluralist perspective of Law, which in an anthropological understanding can be seen as that which puts forms and puts into forms the reproduction of humanity and the resolution of conflicts in our societies. If the notion invites us to unveil its traps, especially under its form of “good governance”, it is also an invitation to explore the potentialities which are inherent in the emerging forms of “living together”. What are the contemporary stakes in rethinking the modalities of our “living together” and how to integrate realities which are largely ignored by mainstream modern legal, political and economic thought?

A purely Western approach, starting from the existing analytical tools, cannot suffice. If “governance” and “sustainable development” are “globalised realities” and may thus appear as new universals in the continuity of the “rule of law”, “democracy”, “human rights”, “development”, one should be aware that the institutional transfer of Western models to its former colonies has not ceased to be problematic. What do these concepts mean in very different cultural, economic, social and political contexts? Beyond their legality, are they legitimate and efficient? What are the stakes of their translation into idioms and world visions that do not share the Western cultural matrix? What are equivalents to these concepts in non-Western cultural settings? How are the questions put and approached? Could these other approaches not also be an enrichment to the “global”, very “Western”, way of putting questions and answers? What are the conditions and the stakes of genuine intercultural dialogue on the shaping of our living together? The requirement of intercultural dialogue is inevitable in order to complete the analysis of the current situation and in order to map out new horizons for action. This panel is an invitation to take up the challenge of this requirement.

Contact
Prof. Dr. Christoph Eberhard
Facultés universitaires Saint Louis, Boulevard du Jardin Botanique, 43
B-1000 Bruxelles, Tel : 00 32 2 211 78 33
E-mail : c.eberhard@free.fr
Website : http://www.dhdi.org/

2 Negotiating Gender and Legal Pluralism:
Local, National and Transnational Perspectives on Law

Prof. Dr. Anne Griffiths, University of Edinburgh
Prof. Dr. Anne Hellum, University of Oslo

In recent years the mobility of persons and law both within and beyond nation-states has been such that is necessary to reformulate the relationship between local, national and transnational domains. This requires a reappraisal of the role of the state and its relationship with law for given the intersection of development, transnational capital, civil society, non governmental actors, and states it is clear that nation-states can no longer be treated as discrete legal entities that can be studied in isolation either internally or externally. These factors that are driving social and economic change highlight a need to reassess the relationship between law, culture and rights, in an age where law and legal institutions now cross local, regional and national boundaries and in which the ‘local’ is embedded in and shaped by regional, national, and international networks of power and information. This is especially pertinent given the emergence of and prominence accorded to international human rights in the struggles over claims to non-discrimination and equality, land and resources, rights to cultural property and recognition and protection of minority and/or group identity.
However, in reappraising legal pluralism little attention has been paid to the gendered dimensions of law, despite the impact that this has on women’s and men’s access to resources, including legal institutions. This panel will explore the importance of gender and its impact on law at multiple levels. It will investigate how gender as a construct is socially and legally constructed and the consequences that this has for people’s access to property and resources and the strategies that they employ in their pursuit of the latter. It will consider the extent to which international instruments and conventions, such as the Convention on the Elimination of All Forms of Discrimination Against Women or the African Charter on Human and People’s Rights, may be used to empower women, as well as the extent to which such international instruments and conventions (that set up cross cultural expectations and agendas with regard to women’s rights) may be applied or tailored to tackle the local, everyday domains in which men and women operate.
In tackling these issues the panel seeks to highlight women and men’s experiences of legal pluralism, with a particular emphasis on the advantages and disadvantages that plural legal systems pose for women. Such issues raise questions about the potential, as well as the limits to, a rights centred discourse in this context. This in turn raises questions about who has the power and authority to define, interpret and implement law at the many levels at which it operates, and the implications that this has for women’s access to, and use of, law.

Contact
Professor Anne Griffiths, University of Edinburgh, Anne.Griffiths@ed.ac.uk and Professor Anne Hellum, University of Oslo, anne.hellum@jus.uio.no

3 Transnational Legal Pluralism:
Constructing the Legal Bondage of International Migrant Labour

Heinzpeter Znoj, Prof. Dr.
Institute for Social Anthropology,
University of Bern, Switzerland

Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland

Bonded labour arrangements, although long expected to gradually disappear with economic growth, societal development and legal reforms, remain a common phenomenon throughout the world. Examples of contemporary labour migration resulting in situations of dependency and exploitation have caused practices of slavery to become again - more than one hundred years after its abolition by law in most parts of the world - a widely discussed issue. This is reflected in the keen current interest in phenomena called ‘trafficking’, ‘modern forms of slavery’ and ‘forced labour’, concepts that remain, however, often undefined and are used metaphorically to denote various kinds and degrees of exploitation, violence and coercion.
In an attempt to bring some theoretical rigour into discussions on bonded labour and related concepts, we propose to take a closer look at how underlying legal frameworks help to create, sustain and legitimate bonded forms of labour. Legal frameworks are not only important for understanding the statutory position of slaves or debt bondsmen in former times, but also for analysing bondage in contemporary labour migration. In fact, according to Steinfeld and Engermann, what needs explaining in both past and present studies on (migrant) labour is “the legal rules that give employers rights to certain coercive devices, permit them to use others but prohibit still other forms of coercion.”
In the context of the increased mobility of migrant workers within and across borders, both labour sending and receiving states attempt to monitor and regulate international labour flows by implementing laws on labour migration. Furthermore, non-governmental organisations adopt and utilise international human rights instruments in order to promote the protection of migrant workers’ rights on the local level. Accordingly, the labour arrangements involving migrant workers can be socially and legally constructed in a range of different ways, depending on whom has the power to legally and socially define their situation at a certain moment in time – an immigration official, an employer, a profit-oriented recruitment agency, or an NGO activist?

The concept of legal pluralism, so far mainly applied to national contexts in which state, religious and traditional laws coexist and interact, can be fruitfully applied to a transnational context, were actors refer to the legal frameworks of their home and destination countries as well as to globally applicable legal norms. In some cases the legal complexity involved in the regulation of international labour flows can create a space for dependency, exploitation and even violence. In launching this panel at the next conference on legal pluralism in Zurich, we hope to bring together researchers interested in the ways legal pluralism works in the context of transnationalism, and how it contributes to create – or, on the contrary, reduce - bondage in contemporary transnational labour arrangements.

Some of the core questions that the panel aims to discuss are:

Under which circumstances do constellations of legal pluralism contribute to the creation and maintaining of ‘bonded’ labour relations? What does the emergence and prevalence of these dependencies tell us about new and old inequalities and about the changing social fabric within and between societies?

How does legal pluralism work in the transnational context of labour migration? To what extent do different actors participating in the field of labour migration rely on legal instruments to defend their interests and positions, and what are the consequences of these different uses of law for the migrant workers themselves? What role do ideologies of labour and gender play in the legal practices on labour migration?

Contact
Olivia Killias, PhD candidate
Institute for Social Anthropology,
University of Bern, Switzerland
Länggassstrasse 49a
CH-3000 Bern 9
Olivia.killias@anthro.unibe.ch

4 Plural socio-legal spaces, power and resistances

Dr. Fauzia Shariff,
London School of Economics and Political Sciences, UK

Contemporary challenges posed by the global and national juxtapositioning of diverse cultures and faiths has led to increasing interest in enquiries into the nature of parallel normative social fields or legal orders, referred to as legal pluralism. Overlapping normative social fields may range from legal systems such as state law, customary laws and religious laws, to socio-legal spaces such as the community, family, or other groups defined through ideology or group identity. These legal orders are spaces in which individuals are constituted and socialised and which encompass rules and the means of inducing or coercing compliance.
For socio-legal scholars, sociologists, anthropologists and policy-makers interested in issues of social justice, unpicking the dynamics of these co-existing normative social fields is a valuable prerequisite to resolving and theorising problems facing modern law and society. These challenges demand a better understanding not only of the legal orders themselves but also of how individuals and sub-groups inhabit and navigate through them.

This session will consider examples of how individuals move between legal orders to avoid or challenge inequalities and disadvantage or in search of benefits. Papers may consider:
1. Examples of individuals navigating through a number of legal orders to challenge perceived inequalities or injustices;
2. Factors that affect when and why individuals take recourse to a particular legal order as an act of resistance, and factors that might prevent them from doing so;
3. How power and power relations in one legal order are affected by this navigation of legal pluralism.

Examples may consider legal pluralism through legal implants (migrant communities acting in accordance with law that is not incorporated into state law), or other parts of the world where legal transplants (imposition or reception of foreign laws into state law) differ from indigenous legal orders. Papers are particularly encouraged to consider other spaces where individuals are constituted such as the family, community or other group where they face inequality and the possibility of using alternative legal orders as a means of resistance.

Contact
Dr. Fauzia Shariff, (fauz.knight@yahoo.co.uk)
London School of Economics and Political Sciences,
Department of Law, Houghton Street,
London WC2A, 2AE, UK
5 Resignifications: Law, Justice, Moralities

Prof. Dr. Susanne Brandtstädter, University of Oslo

This panel suggests readdressing the problem of law and culture by exploring ethnographically new constellations of law, justice and morality and their different principles for social action: accountability, responsibility, and sensibility. Though separate from justice as a social aesthetic and morality as an emotional compass, the workings of ‘the rule of law’ depend on its promise to deliver fairness and sustain ‘the good’ by means of due process or constitutional rights. The globalization of the rights discourse today demonstrates the cross-cultural attractiveness of this promise. It also demonstrates, however, frustrations that the reality of global law often falls far short of it: access to law might remain a privilege of elites, decisions that emphasis individual accountability can offend moral sensibilities, or responsibility stands in conflict with the principle of equality before the law. Increasingly complex political, cultural and social settings seem here to result both in ‘law’s fetishization’ (Comaroff and Comaroff 2006) and\or the exodus to alternative arenas and means to make ‘right’. This panel looks at ‘ethnographic moments’ where the contradictions between accountability, responsibility, and sensibility become manifest, and which inform political processes of resignifying the ‘right’, the ‘just’, and the ‘good’.

Contact: Susanne Brandtstädter, University of Oslo
Email: susanne.brandtstadter@sai.uio.no

6 Pluralism within Pluralism in Small Island Nations
of the South Pacific

Prof. Dr. Anthony Angelo
and
Associate Prof. Dr. Jennifer Corrin
TC Beirne School of Law, University of Queensland, Australia

In countries of the South Pacific, societies are often discussed in terms of the dichotomy between ‘traditional’ and ‘modern’. Similarly, legal systems are often described by reference to the dichotomy between ‘traditional law’ or ‘informal justice’ and ‘state law’ or ‘formal justice’. In fact, these divisions are becoming a thing of the past, gradually blurred by changes in the pattern of society caused by greater mobility and the impact of Western ideas. Further, the approach usually taken to the accommodation of customary law, which has been to formally ‘recognise’ it in constitutions has, at least in theory, put an end to its independent operation. In the search for a more effective approach to legal pluralism, the existing dichotomy may often obscure a more complex interplay within the spheres of ‘traditional law’ and ‘state law’. In each of these spheres there are uncertainties, including questions of definition and scope, which constitute a potentially destabilising factor and have significant rule of law implications. This panel seeks to stimulate discussion on these uncertainties and on the tensions between different sources and types of law within the ‘traditional’ and ‘state’ law spheres in the South Pacific region. Within this theme, sub-themes of human rights (including but not restricted to gender issues), natural resources, and other issues of perennial concern will be used as a focus for discussion.

Contact
Dr. Jennifer Corrin, TC Beirne School of Law
Asia Pacific Law Centre for Public, International and Comparative Law
University of Queensland, St Lucia, Qld 4072, j.corrin@law.uq.edu.au

7 Communitarian Law and Decision Making Process:
Regulations for Adaptive Governance and Recognition of Collective Rights in Watershed Management

Ingo Gentes, PhD
Centre for Research and Education in Tropical Agricultural (CATIE)
COSTA RICA

Contact
Ingo Gentes
Centre for Research and Education in Tropical Agricultural (CATIE)
Cartago, Turrialba 30501
COSTA RICA
igentes@catie.ac.cr, ingo.gentes@gmail.com
http://www.catie.ac.cr/

8 Legal pluralism in the management of watersheds
and the equitable distribution of benefits among
stakeholders

Sharon B. Singzon, D. Tech. Sc.
Eastern Samar State University, Philippines

Yonariza Guchiano, PhD
Andalas University, Padang - Indonesia

Watersheds play a very important role in the life of communities that are within its coverage. Attention to watershed development and management has recently been done as a result of the realization of the critical status of many watersheds particularly in Asia. Watersheds in the past were seen as source of rich natural resources and livelihood. It is the provider of water for various human purposes, source of timber and forest products, wild flora and fauna, as well as ecological integrity. Global warming and climate change are global phenomena that significantly affect the benefits derived from the watershed in terms of ecological and environmental sustainability.
Exploitation of the benefits from this natural resource has led to degradation of many watershed. Various stakeholders may have different understanding in terms of utilization, management and development of this resource. The watershed is often considered as a common property resource of the community where it belongs, others see it as a government-owned property, or as a resource available to those who have the finances to extract its products. Because of this, development and management of the watershed is sometimes hindered as nobody seems to take ownership for its management and development. This panel will therefore seek to learn from various watershed project cases and answer questions such as: Who are the beneficiaries or stakeholders of watershed resources that are involved in its development and management? Who takes the lead and what are the legal bases for their involvement? How does co-management in watershed take place? What are the conflicts or obstacles to watershed development and management? In how far are these difficulties linked to questions of legal pluralism? What kinds of advantages or disadvantages result from the relationship between legal pluralism and watershed management?
We invite theoretical papers, case studies, or conceptual papers that seek to answer the above-mentioned panel questions...

Contact

Sharon B. Singzon, D. Tech. Sc.
College of Agriculture and Natural Sciences, Eastern Samar State University,
Borongan, Eastern Samar, Philippines
drsingzon@yahoo.com

Yonariza Guchiano, PhD
Kampus Universitas Andalas Limau Manis, Padang 25161, Indonesia
yonariza@gmail.com

9 Defining boundaries of recognized indigenous land

By Prof. René Kuppe, Vienna University, Austria &
Prof. Pablo Gutiérrez Vega, University of Seville, Spain
rené.kuppe@univie.ac.at

As a scholar of indigenous peoples’ rights has recently stated, “One of the cornerstones of indigenous peoples‘ rights is their right to use and/or own their traditional territories“ (Jérémie Gilbert). This right is based on international instruments, possibly on international customary law, and has been recognized, at least in principle, by most national legal systems of those states where indigenous peoples live. Nevertheless, most legal sources do not answer the question clearly enough how to define the geographical boundaries of indigenous lands. Basic provisions, like Art. 14 of ILO Convention 169, require states to recognize the ownership and possession of indigenous peoples of the land they traditionally occupy; but the term “traditionally occupy“ is a complex concept which in turn requires interpretation. Furthermore, recently adopted international instruments such as the UN Declaration refer to lands and territories not only ‘traditionally owned’ but also ‘otherwise occupied and used’, thus enlarging the nature and scope of lands likely to be eligible for indigenous claims.

State practice and legal analysis have not developed uniform criteria to define lands that can be legitimately claimed by indigenous peoples. Even though a lot of scholarly writing has been produced on indigenous land rights, a remarkable emptiness prevails concerning the issue of the criteria that should define the limits of these rights. Besides, one of the most outbreaking endorsements of the already cited UN Declaration on the Rights of Indigenous peoples, is that Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (…) Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

The workshop wants to overcome this situation. On the one hand, it shall bring together critical case studies about the experiences of indigenous groups with the identification of their lands and territories by state agencies. Did the State recognize indigenous criteria (customs, traditions and land tenure systems) when granting protection to indigenous lands? Did the State limit the reach of indigenous land by recognizing rights over (indigenous) lands claimed by third parties? Missing cultural sensitiveness and third parties’ claims are some of the main reasons for reducing the size of recognised indigenous land rights, and both topics have to do with the missing intercultural dialogue and understanding. Event though it may be perceived as a simple bureaucratic readjustment, the reduction of the size and nature of claimed ancestral territories, far from being negligible, seriously jeopardize the spiritual and material survival of indigenous communities throughout the world.

In second place, the workshop shall contribute to a better methodology of how key rules about the determination of the extent of demarcated indigenous land rights shall be interpreted. Legal rules on land rights (both international and national) must be inspired by the perspective of legal pluralism, and the content of terms like “traditionally occupied lands“ should be filled up by a process giving sufficient weight to indigenous values, criteria and rules of how the boundaries of their lands should be identified.

10 Pluralistic approaches to land tenure regulation

Janine Ubink, PhD
Leiden University, The Netherlands

Throughout the 20th century, both practice and research concerning land law in developing countries were marked by strong differences of opinion about the kind of law that would fit these societies. The main divide was between those convinced of the need to design and introduce law as a state-led program – the ‘centralists’ – and those who would rather leave matters of law to local groups and communities – the ‘localists’.
From the 1960s onwards, centralist approaches dominated the field in the name of development, emphasizing codification of land rights, land registration, and land reform. This centralist paradigm was broadly supported by the economic discipline as well as by other disciplines as diverse as law and land surveying. From the 1ate 1970s ‘localists’ again raised serious questions concerning the feasibility of the centralist approach. They called attention to continuing local practices and arrangements of ‘indigenous law’ or ‘local law’, and to the failures of state-led registration projects.
Recently, both paradigms seem to be faltering. The centralist promise of a rule of law was damaged by implementation failures, while the localist promise of a community-based law often remained unfulfilled as discriminatory practices and unpredictability prevailed. There is an ongoing quest for a new paradigm in land tenure regulation based on pluralism, reconciling state perspectives of a programmatic, national and legal nature with people’s perspectives on local land law and land use.
In this panel we want to analyze concrete cases of governmental tenure reform programs that have evolved in selected countries since 1990, particularly “third way approaches” to incorporate ‘local’ rights to land – such as customary rights or urban squatters’ rights – into the national legal system. We would like to invite papers that discuss the ensuing plural regimes of land rights and management, with specific emphasis on their rationale and goals; their implementation, and their effects on tenure security.

Contact
Janine Ubink
Van Vollenhoven Institute for Law, Governance and Development
Faculty of Law, Leiden University
The Netherlands
j.ubink@law.leidenuniv.nl

11 Developing Institutional Frameworks for Translating
Global Conventions on Natural Resources Management
into Local Actions in the Context of Decentralization:
Experiences and Reflections Related to Land, Water, and
Forestry Resources Management and Conservation in
Asia

Helmi
Andalas University, Padang, Indonesia.
Shyama Prasad Rout
Jawaharlal Nehru University, New Delhi, India

This panel embarking from three major factors related to natural resources management especially land, water and forestry: global conventions, decentralization, and empowerment of community for local actions. There are a number of global conventions related to land, water and forestry resources which already agreed upon as a response to the deterioration of the resources and their uses to fulfill human needs. Millenium Development Goals (MDGs) is the latest (which more comprehensive to cover poverty, natural resources, health, etc), the Dublin Declaration (which concern with water), Kyoto Protocols (which concern with carbon dioxide emission), Biodiversity Convention are among others. The principles and general guidelines contained in the convention provide a basis for improvement of natural resources management in general and land, water and forestry in particular.

Following the agreement on principles adopted, efforts have been made to translate the conventions into action at local levels. Various organizations including government agencies, civil society organizations, private sectors (national and international), and research institutes have involved in the processes. These efforts have to take into account the latest development on governance: decentralization and empowerment of local people to actively play roles in managing provision of public goods and services (including provision of environmental services). Institutional frameworks have been developed and implementations have taken place which trying to deal with pluralism of laws at different levels (from global to local). However, the results are mix, some are successful to some degree and some were not achieved the objective as expected. The deterioration of the land, water, and forest resources which continue to happen at alarming rate give indication that there is a need to review institutional framework used to facilitate action at local levels and the implementation experiences. The basic questions are: What are the characteristics of the institutional frameworks developed? What are the characteristics of strategies adopted and the dynamics of interactions in the implementation among the actors? How do they reflect the interest of national and local governments to conserve and increase revenues from natural resources management? How do the institutional frameworks and implementation strategies reflect the concern of local people on their culture, rights, obligations, and welfare? How the interests of the stakeholders were reconciled? How best (performance) is the land, water and forest managed within the institutional frameworks and implementation strategies? Answers to these questions would enable us to draw lessons and make reflections related to legal pluralism issues which can help to improve concerted action (from global to local) in land, water and forestry management and conservation.

Researchers and practitioners are invited to submit papers which could provide answer to some or all of these questions.

Contact
Helmi
Andalas University (Center for Irrigation, Land and Water Resources and development Studies), Padang, INDONESIA.
E-mail address: helmi59pdg@yahoo.com.
Phone/Fax: +62-0751-74389.
Shyama Prasad Rout
Centre for Political Studies, Jawaharlal Nehru University, New Delhi, India
E-Mail address: shyama2u@rediffmail.com Phone- +91-9437110826
12 Legal Pluralism and Environmental Justice
in a Rural Natural Resources Context of South Asia

Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
New Delhi, India

Legal Pluralism is a fact of life in multicultural societies, particularly such as those of Asia and Africa. Indigenous legal traditions of plural dimensions reflecting and evidencing such cultural plurality co-exist with monistic forms of governance and administration of justice through formal state-engendered legal frameworks. The latter in most cases, have been a product of the colonial experience. Despite the fact of a vast allegiance of the populations of Asian countries to their indigenous legal traditions through the frameworks of customary law, legal frameworks based on monistic and ethnocentric western jurisprudence predominate in many such nations. Customary laws, where they are recognized by constitutional or statutory legal frameworks, are frequently circumscribed by formal notions of justice, legality and authority, giving rise to normative and jurisdictional conflicts. Such conflicts may relate to concepts of law and justice that impact on notions and visions of development and progress. Complex processes of legal pluralism have evolved in this clash of and continuous interaction between differing worldviews and jurisprudential systems based on them. Added to this intra-national melting pot of legal cultures are the tremendous conflicting influences of transnational economic, political and social phenomena and the institutions and the legal frameworks that they bring in their wake. They are authored on the one hand by globalizing economic forces that seek to consolidate economic and political power, and on the other, by the aspirations of the international community for sustainable and equitable development articulated through formal and non-formal movements, institutions and processes.
One such initiative has been the environmental justice movement that emerged in the west as an illustration of the integration of environmental conservation and social justice principles and goals that were subsequently translated into government action initiatives for protection of the quality of life of minority and disadvantaged groups against the harmful effects of environmental pollution. While this concept has evolved rapidly over the past decade or so in Western countries, it is still in a nascent stage in other parts of the world, particularly developing countries. Western initiatives for environmental justice are located in legal frameworks founded on western systems of jurisprudence. In legal pluralistic and rural natural –resource dependent rural societies such as those of Asia, a departure needs to be made in defining and operationalising the concept, goals, objectives and processes of achieving environmental justice.
Rural livelihoods in Asian countries revolve substantially on the use of natural resources. These resources have historically been at the centre of the conflict between western and traditional systems of law in countries which have undergone the colonial experience, when legal frameworks were targeted at establishing colonial rule through access to land and natural resources. Property rights to natural resources and the legitimacy of public participation in their control and management have been at the heart of this conflict. In current global conditions of progressive environmental degradation through over-exploitation, misuse and climate change phenomena, how does a disempowered, poor, socially disadvantaged rural citizen in a developing country in the Asian context secure his or her rights to natural resources, and thereby a sustainable livelihood? Do conditions and situations of legal pluralism hinder or enhance such a citizen’s prospects of securing participation and justice?

This panel seeks to explore the contours and content of environmental justice in the Asian, rural natural resource context, in conditions of legal pluralism. The panel invites papers on topics including, but not limited to the following.
Influences of religious/ spiritual law on conceptions of man –nature relationship, law and justice.
Concepts and theory of environmental justice from pluralistic jurisprudential perspectives.
Property rights and management of natural resources from legal pluralistic perspectives.
Access to justice in Asian rural societies in conditions of legal pluralism.
Structures and processes of law making and implementation in the natural resources sector – role of legal pluralism
Role of transnational laws and influence of multi-lateral and bilateral agencies in resource rights and management and impact on customary legal frameworks.
Prospects and processes for harmonizing customary law with constitutional and statutory legal frameworks for addressing traditional practices that violate environmental justice principles.

Contact
Ms M.S.Vani and Mr Rohit Asthana
Development Centre for Alternative Policies,
5 Babar Road, New Delhi 110001 India
Phone: 91-11-23353774; 09412092349; 094129093395; 09868127328
Email: dcap@del3.vsnl.net.in; devcentre_ap@yahoo.com; devcentreap@gmail.com

13 Embedding International Environmental Law in Contexts
of Legal Pluralism (with a focus on Water and Africa)

Corinne Wacker, PhD, Institut für Umwelttechnik,
Fachhochschule beider Basel

Law has been designated by Giddens (1990) as a dimension of Globalization. Specialized fields of law, such as environmental law, create a trans-national legal culture, a system of expert knowledge which is ‘disembedded’ from the social context. We propose to share and discuss case studies and conceptual papers on the implementation of international environmental law in contexts of legal diversity. We propose to set a focus on the procedural conditions under which international environmental law can become meaningful in contexts of legal diversity and instrumental to local communities to claim entitlements over the natural resources of their environment (with a focus on water resources of water courses under international water treaty regimes).
To make the environmental dimension an internalized component of the decision making process and on the use and management of natural resources, International Environmental Law has adopted the principle of public participation. Through participation in the process of law making, law can become meaningful and instrumental to local actors and become part of their world (Cover 1983, Mellissaris 2004). In a dialogue between state and non-state actors, a “productive misreading” of the law (Teubner 1992) can facilitate an internal reconstruction process of the law in contexts of legal diversity. States can also voluntarily enter in agreements with extralegal institutions grounded in local knowledge, create linkage institutions and accept local autonomy on the management of natural resources (Guillet 1995). With these characteristics, linkage institutions between the state and non state actors have the potential to enable marginalized traditional communities to claim their rights on natural resources of their environment (Zerner 2000). What are the procedural and substantive conditions to make international environmental law meaningful in contexts of legal diversity?

Case Study: Environmental Law in the Making in a Context of Legal Diversity at Lake Victoria’s Wetland Shoreline in Uganda.
Formed by the bi-annual equatorial rise and fall of the lake level, the wetland bays and small islands along the northern shoreline of Lake Victoria were since thousands of years the privileged premises of a great aquatic civilization based on fishing, canoe trading along the waterways of the river Nile system and on flood recession gardening. Neglected by the colonial Nile Treaties which have allocated the rights to the Nile water to two countries having the right to grow irrigated crops and to eight others to whom this right has been denied, the wetlands of the Nile River and its Sub-Basin, Lake Victoria, have been bypassed as a specific ecosystem and habitat in the international water law of River Nile. By implanting additionally also modern land laws in the colonies, the wetland habitat of land and water has been dismembered into separate international and national legal units and has been marginalized. As part of public land, wetland habitats have become in Uganda, however, privileged premises for marginalized population segments who continue the traditional modes of swamp livelihood as illegal encroachers on public land and on a part of an international water body.
As country situated in the catchments of River Nile, Uganda has large areas of wetlands. Under President Museveni (since 1986) Uganda has set up a national environmental law endorsing the principle of participation in environmental law and the delegation of decision making on environmental matters at local level. Additionally the environmental law allows also the ‘traditional uses’ of wetland resources under the environmental law. This favourable legal context enabled a local community of wetland resource users, making a living illegally by using wetlands for fishing, gardening and craft making at the shoreline of Lake Victoria in Jinja town, to form a collective, to embark in a dialogue with government representatives and finally to become a “custodian” on the wetland, entitled to use the wetland resources for traditional uses and to monitor locally - as private sector collective under a co-management system with the local authorities - that the environmental wetland law of Uganda is enforced. This delegated co-management system enabled implementing environmental law in a context of legal pluralism. Uganda has inherited a dual legal system from its colonial period, but successive post-independence legal reforms have created diverging layers of laws on wetlands, which were, however, poorly enforced against the many poor who made a living from the urban and peri-urban wetlands of Jinja town, where the case study is situated. A “living law” (Tamanaha 1997, 2000) governed the transactions among the wetland user community, encompassing and keeping alive principles of customary African law which are distinct from the colonial customary law and the post-independent modern law of the country. With this case study based on six years of anthropological field research and on participatory legal drafting with the Wasoga and the fishing communities named “Bakenji” of Lake Victoria’s northern shoreline, we propose to discuss some principles of African land and water law and procedural aspects on how to implement environmental law in a context of legal diversity. As le Roy and Le Bris (1982) underlined, African law is not linked to a specific space but to social relations of the people who interact and use this space and it is the collective that enables and controls individual user rights on a habitat which are effective as long as the resource is effectively used and the relationship to the authority which has allocated this right is maintained. The local case study of a collective of wetland resource users from the shoreline of Lake Victoria in Uganda suggests that international environmental law can be embedded in legal systems which derogate in their principles form colonial or modern land property law.

Contact
Corinne Wacker, PhD
9, rue du Château
2000 Neuchâtel, corinne.wacker@bluewin.ch
14 Legal Pluralism and Human Rights

Yuksel Sezgin, PhD,
University of Washington

The panel will focus on the impact of non-state legal orders (customary, religious etc.) on rights and freedoms of individuals living under these systems. Existence of multiple jurisdictions often entails existence of multiple standards of rights and duties for individuals within the same politico-legal space. Yet, the lack of a common standard of rights and duties in a society can also lead to rise of differentiated or stratified categories of citizenry by grouping individuals into racial, ethnic, tribal, sectarian and gendered categories. In this respect, the first question that the panel will address is how universal human rights values can be instilled into a polycentric system where collective rights are held superior to individual rights or the principle of applying territorial, abstract and depersonalized norms to individuals without discrimination is either only weakly established or completely unknown. Moreover, the following questions will be also answered by the panel: Does legal pluralism help or prevent cultivation of international human rights standards? How much or what type of plurality can promote the so-called universal standards of human rights? Is legal pluralism an ill-intended tool for cultural relativists to deny international human rights to their constituents? Whose rights should prevail when there is a conflict between the rights of individuals and those of communities? In addition to purely legal and academic papers, the panel also welcomes papers from human rights or development practitioners who deal with public policy or immediate questions of how to reconcile differences between non-western norms/values and the so-called universal human rights principles, by particularly focusing on vulnerable populations (e.g., women, children, indigenous peoples etc.).

Contact
Yuksel Sezgin, PhD, University of Washington
Comparative Law and Society Studies Centre
Email: ysezgin@u.washington.edu

15 Contributes applied legal anthropology to an
improved governance of legal pluralism?

Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries,
Rüschlikon, Switzerland

In recent years, questions concerning applied legal and social anthropology have come more frequently to the fore, mainly in respect to the improvement of development politics. The German Technical Cooperation for instance requested legal anthropological advice for the designing of its good governance programmes from the mid 90s onwards. A leading question was whether such advice could develop practical recommendations which take the political, social and cultural living conditions of the recipient countries as starting point. And under the heading „cultural cooperation“, the Swiss Agency for Development Cooperation strived for a closer collaboration with social anthropologists. More recently, also the UN requested a large-scale study on informal justice. Typically however, in all cases the focus rests only on those cultural aspects which are located outside of development agencies and thus hamper or enable a social change in the recipient countries.

Yet culture is of course not only „something“ that is located outside of these agencies and thus only in the good hands where one discusses the existing links between culture, legal structure and „social development“. Culture is also a typical mark of these agencies themselves, which invent the corresponding rules in order to design and manage development projects. With the growing globalisation such aspects gain importance, the more so as (private and public) development bureaucracies exert a growing pressure on the social and economic relations of local communities in non-western contexts. This process is particularly accentuated by the (not so new) discourse order on topics like good governance, the rule of law, the recognition of the human rights or the promotion of justice and democracy - topics, which are explicitly declared as new fields of action of private and public development agencies.

However, if one turns the scope to the social anthropological debates on development cooperation, which actually are largely influenced by exponents of development anthropology, one gets an ambivalent impression. While such an initial point would require substantial social and legal anthropological research on the socio-cultural impact of development aid, many anthropologists still prefer emphasizing the so-called „anthropological scepticism“ and add that development aid is „of no use“. Herewith, the debate is steered towards a direction which is rather due to a value orientation than to the upcoming cultural conflicts. Vis-à-vis the development practitioners one insists on the one hand resolutely on the boosted consideration of social anthropological viewpoints during the planning and implementation phase of those projects which are located at the interface between national and local notions of law. And on the basis of de-constructive approaches one identifies the ethnocentricity of bureaucratic patterns of decision-making. Those anthropologists however, who are engaged in such disputed territories are on the other hand accused of being „traitors“ of the „common cause“, since they would „sell“ their local knowledge to bureaucrats and thus only help them to cover their own deficit of social legitimacy (see Escobar, 1991; Ferguson, 1994; Hobart, 1993: Mosse, 2003 and many others).
But when the discussion shifts to possible alternatives, the contributions are usually not very helpful. In most cases only commonplace points are stressed such as the postulation for more self-reflection, the promotion of actor-centred approaches or the „empowerment“ of discriminated minorities (Gardner and Lewis, 1997; Grillot, 1997; Mosse and Lewis, 2005).

The goal of this panel is thus a qualified exchange of ideas and experiences between legal anthropological practitioners and researchers, which goes beyond wishful thinking and professional cynicism. The question whether applied legal anthropology contributes to an improved governance of legal pluralism or not is thus not only a value related question (whether one believes “legal pluralism” or “governance” is “good” or “bad”) but a question, which also challenges our identities and our world views.

With this panel, I thus call
for papers that contribute to an improved understanding of the problems of “the other”;
for papers which analyse the social and political complexities, in which legal anthropological research or advice takes place;
for papers which consider cultural and legal conflicts at the interface between state bureaucracies and local notions of governance;
for papers which identify legal and political dynamics that could evoke distinct or controversial problem understandings, research agendas, operational strategies or management plans.

For further information, please contact:

Dr. Markus Weilenmann
Office for Conflict Research in Developing Countries
Alpenstr. 25, CH-8803 Rüschlikon, Switzerland
drmweilenmann@smile.ch or by fax ++41 44 724 39 40
http://www.conflictresearch.ch/

16 Religious, Corporate and Common Law:
Coexistence in One State

Yulia N. Sushkova,
Mordovian State University, Saransk, Russia

The problems of legal development and transformation in the post-soviet countries will be discussed in the context of globalization and sovereignty. The reports will discuss the regulation of the different aspects of family and marital relations, social connections on the bases of common, religious and corporate law. There will be discussed the influence of those sources on the legal being of people within national and international law.

1. Coexistence of the state law and religious law, ethical traditions, common law in the sphere of marital and family relations.
2. The usage of natural resources: interests of international and national corporations v. aboriginal peoples of the North. Common law in the modern mechanism of aboriginal peoples’ rights protection.
3. Corporate law: coexistence and conflict with the state legal system (on the example of corporations, defense and security structures, informal gatherings).
4. A human in the system of legal coordinates (family, community, region, state, international community).
5. Federalism: problems of regulation within the post-soviet states.
6. NGOs and international financial corporations in the process of human and peoples’ rights protection.
7. Traditional law of the Finno-Ugrian peoples: the problems of coexistence with the state law.

Religious, corporate and common law as a system presents a unique legal heritage, which reflects the diversity of culture, traditions, folklore. Coexistence of multiple sources of law shows how the principles of humanity, development and cultural diversity are functioning in the state. The participants are thus encouraged to present original materials, which demonstrate the history, present situation and future perspectives on the issues.

Contact
Yulia N. Sushkova, Prodean of the law department,
Mordovian State University, Saransk
yulenkam@mail.ru

17 Theoretical and Empirical Issues on Legal Pluralism

Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology

Participants are invited to present papers that deal with theoretical and methodological issues involving empirical research on legal pluralism under conditions of globalisation. Issues that might be addressed include: the selection of an appropriate site of research and choices between multi- and single sited research; local self-regulation and local responses to national and transnational regulation.

Contact
Prof. Dr. Keebet von Benda-Beckmann
Max Planck Institute for Social Anthropology
P.O.Box 11 03 51
06017 Halle/Saale
Germany
kbenda@eth.mpg.de

2009-04-11T14:27:00.001+05:30

NUJS Journal of Law & Society
Call for Papers

NUJS Journal of Law & Society is currently soliciting submissions for its inaugural issue due in September, 2009. The deadline for submissions for the 2009 issue is May 10, 2009. Please send in your submissions under the categories mentioned below. The submissions would go through a two-staged peer review process and edited by the student editorial board. For general queries relating to your submissions, see the ‘Note to Authors’ or kindly write to us at nujs.jls@gmail.com.

About the Journal

NUJS Journal of Law & Society is a new, peer-reviewed and student-edited journal of interdisciplinary studies on law and society. It is based at and published from The National University of Juridical Sciences, Kolkata. The journal seeks to present a dedicated forum of debate for work bearing upon the cultural, economic, political and social lives of law in India. Published annually in September, the journal solicits articles, notes and comments covering judicial decisions, legislative developments, empirical research on Indian legal system, public policy studies and theoretical analysis from related fields of inquiry. We welcome submissions from academics, practitioners, policymakers and students from within the legal community and have a strong preference for articles that are not descriptive but prescriptive and argumentatively focused. In addition to the above, we accept new ideas and perspectives under the ‘Essays’ category of the journal. Essays are reviewed for their potential contribution to existing scholarship but most significantly, to seek the possibility of a new approach to an old theme.

Submission Categories

. The submissions may be made under the following categories –

· Notes: 5000 - 7000 words
· Articles: 10000 - 12000 words
· Essays: 2000 - 3000 words
· Legislative Briefs and Case Comments: 3000 - 4000 words.

Note to Authors

The prescribed word limits are inclusive of footnotes and submissions are expected to strictly confirm to length policy and the guidelines listed below. Kindly go through them carefully before mailing your submissions. ‘Notes’ are short articles written by students and are expected to be well-sourced. They are generally characterized with an extensive use of footnotes. As a policy, NUJS Journal of Law & Society aims to publish no more than two student notes. Essays, case comments and legislative briefs can be submitted by anyone. We promptly acknowledge the receipt of submissions and a decision on publication takes around 8 weeks. The issue is out in print within 6 weeks of a decision to publish. Requests for expedited reviews can be forwarded to the Editorial Board when the submission is being considered for publication by other journals. Please mention the name of the journal for which your article is in consideration, one contact person in the Editorial Board of that journal and a date by which you expect our response.
Submission Guidelines
1. Contact Address: Electronic form of submissions should be mailed to nujs.jls@gmail.com.
2. Deadline: The Deadline for submissions is May 10, 2009.
3. Covering Letter: All submissions must be accompanied with a covering letter, containing the name of the author, institutional affiliation, title and category of the submission and a contact address of the author, including the e-mail address. Submissions should be sent as MS word (.doc format) attachments with the title of the article as the file name.
4. Identification Details: The body of the submission must contain no identification of any kind, including the name and institutional affiliation of the author, which must be provided in the covering letter. This is to ensure an impartial review and a fair assessment of your contribution.

Style Guidelines
1. Form of Submission: Submissions must be in electronic form. All submissions must be word-processed, double-spaced in Times New Roman. Main text should be in font size 12 and footnotes in font size 10. All submissions must contain an abstract of not more than 250 words.
2. Title: The Journal does not recommend any specific guidelines regarding the titles and sub-titles. However, the main titles must be centred, typed in small capitals and emphasised in bold. The titles must be uniform, concise and descriptive.
3. Quotations: Quotations should be clearly indicated and it is vital that they are accurate. Double quotation marks should be inserted at the beginning and end of every quotation and where the quotation will run to more than forty words it should be typed as a separate paragraph and left-indented.
4. Foreign words: Foreign words not currently absorbed into the English language should be italicised, e.g., “inter alia”, “bona fide” etc.
5. References and Citations: The Rules of Citation are generally derived from The Bluebook, A Uniform System of Citation (18th Ed.)

Note 1: Please feel free to write to us for any additional queries that you might have about the theme or the structure of your submissions. Write to us at nujs.jls@gmail.com
Note 2: NUJS Journal of Law & Society was formerly the Indian Juridical Review and beginning with our year in office, we have decided to initiate significant changes in the editorial process, thematic compass and publishing structure of the journal to make the scholarship more contemporary, focused and relevant.

LASSnet Announcements

2009-03-01T11:46:00.000+05:30

LASSnet Activities

A distinction should be made between LASSnet as the network and the LASSnet conference.

LASSNet continues to be anchored at the Centre for the Study of Law and Governance, JNU. For all matters concerning the network, you may contact the new anchor of the network at CSLG, Dr Jaivir Singh.

The next conference of LASSNet will be hosted by ALF and CSCS in Bangalore in 2011.

Smaller Workshops

It should also be recognized that this was just the inaugural conference and the idea behind the network is that we take up the issues that we were interested in and hence, separate workshops which can be much smaller could be organised in different institutions in South Asia or elsewhere.

1. We could think of a workshop just on the theme of interdisciplinary.
2. Different sets of people offer to organise smaller meetings between this one and the next major conference, even writing workshops that work towards publishing or towards thinking of themes for panels for the next conference.
3. One would be of ensuring that the proceedings from the workshops can be shared between people in the network is to record them and upload them and to use the website as a space which can announce different workshops in different cities.

Consolidating Documentations, Archives and Bibliographies

1. The creation of a WIKI, which allows for an annotated bibliography of legal material from South Asia and a SSRN paper exchange.
2. The establishment of a website like SSRN, which will act as a repository for working papers and articles that people may want to share, with key words and abstracts.
3. Strengthen existing initiatives such as Public Juris initiated by Aparna Balachandran and Rochelle Pinto at CSCS, Bangalore.

Conference Proceedings and Publications

1. The discussants and coordinators of each of the panels or in those panels where panel coordinators were unable to come, the chair or paper presenters, volunteer to write a brief 1-2 page report about what happened in their panel. This will enable those who could not attend to get a sense of what happened; and create an overall sense of the conference given the huge number of parallel sessions.

We request you to send a brief report of your session to Lawrence Liang and Pratiksha Baxi in the next 2 weeks.

2. Pursuant to the suggestions at the LASS closing we are now seeking papers presented at the LASSnet inaugural conference to upload on the LASSnet website.

Please send papers to Arudra Burra at webmaster@lassnet.org

3. It was suggested at the LASSnet inaugural that we initiate a LASSnet e-newsletter – Prashant [ALF] offered to run the e-newsletter – so that everyone could be in touch through a newsletter.

Please send announcements, book reviews, short articles and any other writing you may think is relevant to LASSnet to "Prashant Iyengar" .

4. In two years time we could start thinking about the idea of starting a LASSnet Journal.

Those interested in publication of the conference papers should get in touch with Lawrence Liang, and Pratiksha Baxi.

5. The LASSnet Delhi group lead by Mayur Suresh, Anuj Bhuwania, Shrimoyee Nandini Ghosh, Kamala Sankaran, Pratiksha Baxi and Jaivir Singh wish to put together a set of researchers working on courts to develop a research project on the everyday life of courts. If anyone is interested, please contact Mayur Suresh at mayur.suresh@gmail.com

We would also like to meet every three months to discuss ongoing work of anyone in the LASS community who wishes to share their work with the group.

2009-02-09T16:38:00.000+05:30

http://thepinkchaddicampaign.blogspot.com/

What is the Pink Chaddi Campaign?The Pink Chaddi Campaign kicked off on 5 February 2009 to oppose the Sri Ram Sena. The campaign is growing exponentially (1,300 at this point in the life of our Consortium of Pub-going, Loose and Forward Women) and that is not surprising. Most women in this country have enough curbs on their lives without a whole new franchise cashing in with their bully-boy tactics. Of course, a lot of men have joined the group as well.Here is we want to do with the Pink Chaddi Campaign. Join in. Be imaginative, have fun and fight back!What can you do?
Step 1: It does not matter that many of us have not thought about Valentine's Day since we were 13. If ever. This year let us send the Sri Ram Sena some love. Let us send them some PINK CHADDIS.
Look in your closet or buy them cheap. Dirt-cheap. Make sure they are PINK. Send them off to the Sena.The address to send the package is:The Pink Chaddi Campaign,C/O Alternate Law Forum,122/4 Infantry Road(opposite Infantry Wedding House)Bangalore 560001KarnatakaContact person: Nithin (9886081269)If you don't want to mail it yourself, you can drop it off at the Chaddi Collection Points. We will be collecting across the country through this week and sending the packages on February 12. More information about Chaddi Collectors in your city soon on our blog: http://thepinkchaddicampaign.blogspot.com/Step 2: Send the Pink Chaddi Campaign a photograph of the package.Tell us how many chaddis you are sending out and inspire other women in other cities. You can either mail the information to freelancehabba (at) gmail (dot) com or you can mail it at our facebook address. http://www.facebook.com/group.php?gid=49641698651&ref=mfStep 3: On Valentine's Day we do a Pub Bharo action. Go to a pub wherever you are. From Kabul to Chennai to Guwahati to Singapore to LA women have signed up. It does not matter if you are actually not a pub-goer or not even much of a drinker. Let us raise a toast (it can be juice) to Indian women. Take a photo or video. We will put it together (more on how later) and send this as well to the Sri Ram Sena.What happens after Valentine's Day?After Valentine's Day we should get some of our elected leaders to agree that beating up women is ummm... AGAINST INDIAN CULTURE.For right now, ask not what Dr VS Acharya, Home Minister of Karnataka can do for you. Ask what you can do for him. Here is his blog.http://drvsacharya.blogspot.com. Send him some love.Nisha SusanFor the Pink Chaddi Campaign

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