Mitra Sharafi

Mitra Sharafi is a legal historian whose work focuses on colonial India. After completing a history degree in Canada (BA McGill, 1996) and studying law in the UK (BA Cambridge, 1998; BCL Oxford, 1999), Sharafi did a doctorate in history (PhD Princeton, 2006). She is currently working on a book project based upon her dissertation, "Bella's Case: Parsi Identity and the Law in Colonial Rangoon, Bombay and London, 1887-1925," which received the Canada-based South Asia Council’s 2007 Dissertation Award. Sharafi joined the UW Law School and Legal Studies program in July 2007, following a two-year research fellowship at Sidney Sussex College, Cambridge University, and a short visiting fellowship at the Socio-Legal Research Center of Griffith University, Australia. She teaches courses on law and colonialism, legal pluralism, and contracts.

ALF JUDICIAL 90s Workshop

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

Oishik Sircar

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

Sensuous Similarity

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

Lawrence Liang


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

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

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

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

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

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

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

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

Vasuki Nesiah

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

Anitha Abraham

Anitha Abraham is a lawyer based in Delhi

Ponni Arasu

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

Mohammed Ridwanul Hoque

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

PUBLICATIONS

Articles

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

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

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

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

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

Book Reviews

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

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

Gauri Nanayakkara

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

Panelists sought for LASSNET conference

Seeking panelists for the LASSNET conference who would want to contribute a paper for a panel on either 1) aspects of governance of contemporary Family Law in India or 2) laws relating to sexual violence or domestic violence, and their adjudication. Since there is still some time before the conference submission deadline, I've left these topics deliberately broad and vague so that we may define our common focus together.

Srimati Basu

New Member Introduction: Srimati Basu

I am presently working on Family Courts, Women's Grievance Cells and Mediation Counseling, based on data in Kolkata. I am an Associate Professor of Gender & Women's Studies (and affiliated with Anthropology) at the University of Kentucky, Lexington, in the US.
Srimati Basu

BHOPAL SURVIVORS PROTEST MARCH TO DELHI, International Campaign for Justice in Bhopal

Date: Fri, 28 Mar 2008

Press Statement : Bhopal Survivors Arrive on Foot to Remind PM of Unkept Promises
28 MARCH, 2008. NEW DELHI – Marking two years since their last padayatra from Bhopal to Delhi, 50 people, including survivors of the 1984 gas tragedy, their children, people exposed to contaminated drinking water and their supporters, today concluded their second 800 km march by walking from Nizamuddin park to Jantar Mantar. "We were forced to undertake this grueling walk because the PM failed to keep his word. This time, we are not going back until we get a public declaration from him that he will deliver on his promise," said Hazra Bee, a survivor and one of the padayatris.

The PMO has rejected a request for an appointment with the PM, and two further requests have not elicited a reply. However, international support for the survivors is pouring in. More than 1300 faxes from 18 countries have already reached the PMO, prompting officials there to threaten survivors with legal action. Yesterday, members of the Scottish parliament marched to the Indian High Commission in Edinburgh, even as other Bhopal supporters in London went to the High Commission there to submit a memorandum urging the Prime Minister to meet the Bhopalis' demands.

On April 16, 2006, the Prime Minister ended a 21day strike, including a 6-day hunger strike by the Bhopalis, by promising to meet the demands of the survivors. The survivors had demanded an empowered Commission to implement social, medical and economic rehabilitation schemes for survivors and their children, in addition to cleaning up Union Carbide's toxic wastes, providing clean water to water-affected communities, and taking legal action against Dow Chemical and Union Carbide. However, the PM suggested a Coordinating Committee to oversee implementation of rehabilitation schemes and environmental remediation.

Over the last two years, the Coordination Committee has had three meetings and accomplished nothing. More than 25,000 people continue to consume poison-tainted groundwater in the absence of reliable and good quality water supply. More than 5000 tons of toxic wastes remain buried and spread in and around the factory site, and no efforts have been taken to contain them or export them to the US for final disposal. No rehabilitation schemes have been implemented.

Government inaction on rehabilitation and environmental remediation has placed Bhopalis at the receiving end of two disasters – the 1984 gas leak and the ongoing water contamination -- both with pronounced effects on children and future generations. Despite a 1991 Supreme Court order directing the Government to extend insurance benefits to 100,000 gas-affected children, not one child has been covered, leading to a spurt in destitution among families with sick children. In contamination-affected communities, congenital deformities among newborns is a rising trend.

The future generations are in danger. That, say Bhopal survivors, is why any Commission that is set up has to execute its schemes over at least 30 years. The Bhopalis estimate that the Government needs to invest in a corpus of Rs. 2000 crore to provide an annual budget of Rs. 100 crores for the Commission throughout its term.

In contrast to the inaction on Bhopal, the Government has, in the last two years, openly advanced the cause of Dow Chemical and Union Carbide. Information unearthed from the PMO through RTI indicates that ambassador Ronen Sen, Montek Singh Ahluwalia, Ratan Tata, P. Chidambaram and Kamalnath have all written letters supporting Dow Chemical. In response, the Cabinet Secretary has suggested exonerating Dow Chemical keeping in mind the scope of investments by Dow and other US companies in India.

In less than a decade, Dow Chemical has chalked up an impressive list of violations of law and due process. In February 2007, Dow caught for paying more than Rs. 80 lakhs in bribes to Indian agriculture ministry officials to register three toxic pesticides. In 2005, Indian Oil revoked a technology deal with Dow after it found out that Dow was trying to sell Union Carbide's technology by lying that it was its own. Recently, Dow has managed to convince Government of India to approve the sale of Union Carbide's technology to Reliance Industries despite the fact that a 1992 court order directs the Government to confiscate all Union Carbide's assets in India.

"This is a repeat of the betrayal of 1989 where the Government colluded with Union Carbide to shortchange the people of Bhopal on the compensation settlement," said Satinath Sarangi, another padayatri and a long-time Bhopal activist from Bhopal Group for Information and Action. "23,000 people have died, and the collusion still continues. We're determined to break this corporate-Government nexus that plays havoc with people's lives."

For more information, contact:
Nityanand Jayaraman. 9717516003.
International Campaign for Justice in Bhopal
B5/136, Sadurjung Enclave, New Delhi-29
For the PMO files (Right to Information), visit: www.bhopal.net/pmo.html
For PMO files in Hindi, visit: http://www.bhopal.net/Hindi%20PDF.pdf

Saheli organises protest againt Judicial and Govermental Apathy to Rape Survivors

from Saheli Women: saheliwomen@gmail.com
Dear friends,
Please see the statement below that we have issued to the press.We are also planning to do a protest in Central Park (Connaught Place, NewDelhi) on Wednesday 2nd April, 6 pm onwards. Do join us so we can raise our voices together against these incidents of violence and moralistic reactions of the society, the media and the state. The statement below will be distributed in the form of a leaflet. If you would like to endorse it, please let us know latest by 1st April.

Women's group condemns moralism by the Judiciary, State and Media in cases of rape. In case after case of sexual violence against women we are witnessing troubling trends within the judiciary, state machinery and the media which raise serious concerns for women's safety and hope for justice. In a Sessions Court in Delhi, Additional Sessions Judge, A.K Mendiratta passed a judgment on 18 February 2008, regarding the rape and subsequent forced marriage of a young girl. A student of Class 9, the victim was lured by her friend's brother to his house and raped. When she threatened to file a case, he confined her until his parents returned, whereupon shewas forcibly married to her rapist. Then the judgment states, "under pressure, her father left her at the house of the accused wherein she was subsequently sexually assaulted by the accused Vikas". Finally, the victim was abandoned while she was pregnant. It was only then that criminal proceedings began. 2 years later, the victim took back her testimony and the accused was acquitted.Despite being aware of the horrific facts of the case, in his judgment ASJ Mendiratta fails to recognise what the victim must have suffered, choosinginstead to describe her now as, "married… and blessed with a child". Healso fails to deal with the crimes by accused or his parents, and instead shockingly issues a "warning" to parents, advising they "monitor" theirdaughters to avoid such a "slip in teenage" in our "opening society".We strongly object to the language and tenor of this judgement that seeks to police women instead of prevent or punish crimes against them. This is particularly ironic, given that the Union Home Minister, Shivraj Patil told the Lok Sabha last week that about 75% of rapes happen within the family.Such moralism has been equally evident in the case of the rape and murderof British tourist, 15 year old Scarlette Eden Keeling, in Goa. Stateofficials and the police have victimised the family with constantspeculations on the 'character' of Scarlette and her mother, FionaMackeown. On one hand, have been threats to never allow the family to re-enter India, and on the other hand, bland reassurances regarding the 'safety of all tourists' in Goa. Clearly, the real concern is to protect the tourism industry at the cost of justice. It is only after immense pressure that the Chief Minister, Digamber Kamat has finally agreed toallow a CBI enquiry into the matter. Also of great concern has been some of the regressive media coverage around the incident (especially on TV), marked by voyeuristic speculationsabout the mental state, habits, sexual life, etc. of the victim...building up towards a moral response that the victim 'deserved it'. Media reports and state officials have also systematically targeted Fiona as anirresponsible mother and hence tried to shift the onus off the perpetrators of the crime. Under such circumstances, the possibility of justice gets severely compromised. It is essential that the Government of Goa ensure a fair trial and punishment for those responsible for the rapeand murder of Scarlette.Both these cases are an urgent reminder that we need to examine the waycrimes against women are dealt with by the state, judiciary, media andsociety as a whole. We stand in solidarity with the struggles of victims,as well as those like Fiona Mackeown, fighting for justice under suchhostile circumstances.

Samia Bano

Dr. Samia Bano is a lecturer in Family Law at the University of Reading. She obtained her PhD at the University of Warwick, Department of Law where her doctoral research explored the relationship between ‘Muslim Family Law and South Asian Muslim Women in Britain’ (Sept 2005). Her research interests include, gender, migration, human rights and the law. She has worked on a number of research and policy initiatives in the area of gender, migration, multiculturalism and the law, most recently contributing to the CIMEL/INTERIGHTS project to develop legal strategies to combat ‘crimes of honour.’ Her current work explores the relationship between informal religious legal systems, state law and gender relations within South Asian Muslim communities in the UK and is due to be published as a book in Spring 2009 (Palgrave MacMillan).

Aisha Gill

Dr Gill (B.A., M.A., PhD (University of Essex)) PGCHE) is a Senior Lecturer in Criminology at the University of Roehampton. Her main areas of interest and research are health and criminal justice responses to violence against Black and Minority Ethnic (BME) women in the United Kingdom. She has been involved in addressing the problem of violence against women for the past decade. She is currently the Chair of Newham Asian Women’s Project, London, a management committee member of Imkaan (a second-tier national VAW charity) and a member of Liberty’s Project Advisory Group and their ‘End Violence Against Women’ group (EVAW). Dr. Gill has also served on numerous government committees dealing with so-called ‘honour’ killings and forced marriages, and has challenged politicians to be more inclusive of BME women's voices in policy-making on issues of gender-based violence and human rights. Her current research interests focus on rights and marriage, familial homicide and femicide, trafficking, missing women and violence. She has also published widely in refereed journals.