ANR    CNRS
ANR Programme 2009-2012
(ANR-08-GOUV-064)
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JUST-INDIA
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

Law and Social Exclusion in India, 13-14 May 2011, Yale

Starting April 17, 2011 - Ending April 17, 2020

Workshop organized by the South Asian Studies Council at Yale in collaboration with the Just-India project.It will discuss the relationship of law to social exclusion in India in the last century, through an inter-disciplinary dialogue among anthropologists, legal scholars and practitioners, and historians.

Law and Social Exclusion in India

May 13th-14th, 2011, Luce Hall, 34 Hillhouse Avenue, New Haven (Connecticut)

 

After independence India developed social and democratic constitutions that came to inform law making and the evolution of rights. A number of historically practiced forms of social exclusion based in economic, caste, and gender discrimination were identified and legally invalidated. Along with this aspect, and perhaps more recently, social movements inspired by rights-based conceptions of citizenship in India and associated social awareness across the region have rapidly increased.

However, the reformist agenda of the Government or of citizen's movements, and more generally the actual implementation of the law, have to co-exist with the realities of everyday relations of power. This is all the more important as some of the commitments that India has made both at national and international level may either create tension, conflicts or misunderstandings, whenever state commitment goes against local forms of relationships or local economic or political interests; or they can create reciprocal adjustments and adaptations whenever the state or society tries to seek alternative solutions or negotiations. The study of the process leading to a Judge's decision, and of the negotiations and interactions that take place inside and outside the Court, is crucial for understanding how law is informed by, and confronts, actual relations of power, and to which extent its entanglement in the conflicts of social transformation gives effective room for dealing with social exclusion.

 

Provisional Program:

Friday, May 13, 2011

Welcome & Opening Remarks
K. Sivaramakrishnan & Daniela Berti

Session 1 – PERSONAL LAW
Moderator & Discussant: Mrinal Satish

  • Srimati Basu: "We thought all this was a Hindu problem": Religion and Personal Law in the Family Court
    While “Personal Laws” are located in parallel tracks within Indian legal codes, they are commonly worked out in practice in Indian Family Courts (and other venues of Family Law adjudication) through judges (and counselors) hearing all cases regardless of their own religion, or that of the litigants. Through an ethnographic examination of legal processes in Family Court, this article presents quotidian adjudications of Personal Law, particularly the ways in which religion is evoked in the context of distribution of assets and constraints of dissolving marriage. It provides a portrait of the politically interested spaces within which “Personal” law works, indicating the osmosis between ‘religious,’ cultural and legal realms. While marking some of the modes through which cultural alterities are constituted, it argues that structural vulnerabilities at the intersections of class, religion and gender are ultimately the most salient points of difference in the seeming equivalences of “Personal” law.
     
  • Jeff Redding: The Administration of Islamic Law in Contemporary India: Between State and Society
    Personal law is a term that is widely used but rarely defined. In this paper, I will explore the inchoate frontiers of 'personal law' - both old and new - through a detailed examination of the many points of contact between a non-state Muslim system of family law adjudication and the state's system of courts. As I will discuss, many familiar tropes about personal law in India (and elsewhere) simply do not hold up to rigorous examination when one examines the various ways non-state and state systems of law interact in practice. This being the case, I will also explore how some of the familiar cliches about 'personal law' and the ostensible threat it poses to liberal values like equality and secularism also do not stand up under rigorous examination.
     
  • Narendra Subramanian: Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship
    The recognition of difference in religious personal law is in tension with aims to reduce inequalities, promote individual liberties, limit and change the public roles of religion, and treat various religious groups similarly. Discourses salient among ruling elites (specifically, nationalist discourses, understandings of religious and other cultural traditions, and visions of the forms of modernity appropriate for a society) and features of state-society relations (the social bases that governing elites have and aim to build) influence how states address these tensions. The inclination of the majority of India’s political elites to build broad social coalitions, and to modernize society in ways that accommodated the important roles of religion, ethnicity and the joint-family, led them to introduce gradual reforms in the various personal laws based on the relevant group’s traditions and initiatives.
    Policy-makers focused their visions of the modern Indian family on Hindu law alone as they equated the Hindu, the Indian, and the secular-modern. Visions of indigenous modernity shaped the changes in Hindu law, which had mixed implications for gender relations. The equation of the Muslim, minority difference and resistance to modernity led them not to change the minority laws until the 1970s, and to thereafter introduce more limited changes in these laws than group opinion and tradition enabled. The imagination of the nation, its constituent groups and cultures, and its deepest inequalities through asymmetric engagement with the various religious groups shaped other aspects of Indian multiculturalism as well, and weakened efforts to build inter-religious understanding and reduce durable inequalities.

Session 2 – LAW AND INEQUALITY
Moderator & Discussant: Muneer I. Ahmad

  • Chandan Gowda: Adjudicating Atrocity
    This paper has two parts. Based on data from twelve Special Courts from six different Indian states, I examine how these courts, which were established under the Prevention of Atrocities (SCs/STs) Act, 1989, undermine the institutional effectiveness of the POA Act. Second, I critically examine an episode of atrocity that occurred in 2000 in Kambalapalli, a village in Karnataka, where seven Dalits were burnt alive by members of the locally dominant caste, to reconstruct the multi-layered socio-politico-judicial process that subverted the POA Act, which strives to secure Dalits and tribals against systemic social vulnerability.
     
  • Devika Bordia: The Spirit of Legal Procedure: Documents, Court Practices and the Production of Tribal Life in Western India
    In the Bhil and Girassia tribal regions of Rajasthan, practices of creating and interpreting evidence contained in documents of a case file like the doctor’s report and maps of crime scenes are mediated by histories of how tribals have been racially and civilizationally categorized as different from non-tribals. These documents reproduce truths about sociality, dispositions, mental abilities and bodies of tribals and these truths form a “spirit” of tribal life. This spirit also informs and motivates practices at the police station and district courts as police officers, lawyers and magistrates believe that Bhils are more effectively governed by non-state law and incapable of comprehending state law. Therefore they claim that irregular procedures at the court such as negotiations with tribal leaders, bribes, underhand deals and procuring false witnesses must be the norm. In this paper, I juxtapose assumptions about tribal life that are contained in evidence produced in a criminal case file, explanations and interpretations of legal procedure by police officers, lawyers and magistrates, and everyday practices at district courts. The paper draws on a conception of legal pluralism that examines how the articulation and mobilization of state law or non-state law in everyday legal practice is based on hierarchies that are contained in different conceptions of people and place and relationships of power between different actors.
     
  • Nicolas Jaoul: A contingent law: the uses of the Scheduled Castes (Prevention of Atrocities) Act in Uttar Pradesh.

Session 3 – LAW AND ENVIRONMENT
Moderator & Discussant: K. Sivaramakrishnan

  • Shalini Randeria: The Lion’s Share: Juridification of Nature, Production of Rightlessness and the Cunning State
    The new language and practices of globalized environmental governance have a complex colonial genealogy in which processes of nature-making and state-building are inextricably intertwined. Based on material from the Gir forest, the case study analyses continuities and shifts in regulatory and enforcement practices of biodiversity conservation and wildlife protection in Gujarat, western India. These arbitrary practices of post-colonial rule involve a complex interplay of state laws, World Bank credit conditionalities and oppposing sets of international norms advocated by conservationist NGOs and community-based human rights advocates. If my ethnography points to a fragmentation of sovereignty and citizenship rights, on the one hand, it also delineates divergent trajectories of the transnationalization of law, on the other. It explores the simultaneous processes of juridification (or what Habermas has termed „Verrechtlichung“) of ever more areas of social life and the production of what Hannah Arendt called „rightlessness“ (Entrechtung). Finally, the paper addresses the use of social action litigation (Baxi) to claim social rights and environmental justice while seeking to render the state responsible.

  • Sanjay Upadhyay: Missing the Tribal for the Trees! (the tiger and tribal debate in India)
Saturday, May 14, 2011

Session 4 – LAW AND GOVERNANCE
Moderator & Discussant: Gilles Tarabout

  • Daniela Berti: Relations of Power, Judicial Constraints and Government Practices in Shimla
    Since Independence, the Indian State has shown a voluntarist policy which has led to the promulgation of a set of legal acts aimed at criminalizing relationships of exploitation, harassment or discrimination centered on caste, gender or religion. Though this voluntarist policy does not prevent relationships of dominance from subsisting at local level, it contributes to disseminating a legal culture even among the underprivileged classes of the population. Ethnographic data from Himachal Pradesh shows how a Scheduled Caste activist acts as mediator between the victims of caste abuse and different State institutions involved in the implementation of the Prevention for Atrocity Acts. The analysis of a court case filed by this activist about the rape of a Scheduled Caste child illustrates how social relations of power and economic pressure end up disrupting the evidence proceedings, thereby preventing the prosecutor from proving the case. The paper also focuses on the course of the case (and of similar cases) after the trial, when the evidence on record is reassessed by various legal officers who are called to argument or to adjudge the appeal. Informal interviews carried out with various representatives of the justice administration both at government and judiciary level illustrate how, for the State, the appeal process is both a way of compensating for the legal impossibility of proving a case and the outcome of routinised practices of governance.
     
  • Anuj Bhuwania: The Court and the city: ‘Public Interest Litigation’ in Delhi
    If the Indian city is becoming bourgeois at last, as Partha Chatterjee has put it, one key mode of this transformation has been the appellate courts, especially the role they have assumed under the jurisdiction of ‘Public Interest Litigation’ (PIL). Nowhere in India has this phenomenon been as spectacular as Delhi. Right from the inception of PIL in the early 80s, but especially with its massive intensification in the last decade, the two appellate courts in Delhi have made their presence felt in the everyday life of the city. Spectacular, court-inspired moves include the closure of ‘hazardous industries,’ the forced move to CNG for public transport, the demolition of scores of basties to the sealing of properties under newly invoked land use laws, each of which affected lakhs of people. The PIL emerged as a media event par excellence with provocative pronouncements from the Bench invoking the image of urban collapse and projecting itself as the only agent that could ignore ‘populist pressures’. The paper will foreground the changing material practices of adjudication introduced by PIL that became the juridical conditions of possibility for the city’s media and the ‘Residents Welfare Associations’(RWAs) to emerge as its ideal typical public.
     
  • Vinay Gidwani: Urban Need Economies and the Force of Law: The Changing Topography of Delhi’s Non-Formal Waste Sector
    There is increasing recognition of the importance of non-formal or “need” economies to urban livelihoods and urban living. Yet there is scant analysis of how non-formal economies and livelihoods depend on the ability to use urban space, and how the workings of law enable or constrain this. Indeed, law and other common forms of sovereign power (such as municipal ordinances) actively produce urban space and its conditions of access. Since most non-formal production hinges on being able to, both, circulate and sequester materials at different stages of the production cycle – and since production cycles themselves exhibit diverse spatio-temporalities based on the nature of what is being produced – varying capacities to tap into and navigate urban spaces can have enormous bearing on the economic viability of an activity. Using the case of urban solid waste, I examine how judgments handed down in two landmark PILs – B.L. Wadhera Vs the Union of India and Others (1996) and Almitra Patel Vs. the Union of India and Others (1996) – have impacted municipal solid waste management practices in Tier I Indian cities such as Delhi, altered their legal topographies, and undercut the already precarious livelihoods of those who work in non-formal waste economies. The predicament of non-formal waste economies is illustrative of the growing vulnerability of many other realms of non-formal production as the force of law, interleaving with other processes, transforms urban spaces in India, creating new forms of social exclusion.

Concluding Session
Moderators: K. Sivaramakrishnan & Gilles Tarabout

 

 

Anuj Bhuwania is a doctoral candidate in the department of Anthropology at Columbia University. He studied law in Bangalore and London, and was a Visiting Fellow at the Centre for the Study of Law and Governance,Jawaharlal Nehru University, New Delhi.

Chandan Gowda is presently Professor of Sociology at Azim Premji University, Bangalore. After completing his dissertation on the politics of development in Old Mysore state at the Dept of Sociology, University of Michigan, Ann Arbor in 2007, he was a faculty member at the Centre for the Study of Social Exclusion, National Law School of India, Bangalore. Besides academic writings, he has written for newspapers and published translations of Kannada fiction and non-fiction in English. His interests include social theory, ethnography of law, caste, Indian normative traditions, Kannada literature and the media, especially Kannada cinema.

Devika Bordia is a postdoctoral fellow with the ANR/CNRS Just-India Programme. She received a PhD in Anthropology from Yale University in 2009. Her research and teaching interests include: governance and development in post-independence India, the intersections of state law and non-state law in colonial and post-colonial India, and social movements and indigenous politics. She is currently working on a book manuscript tentatively titled The Spirit of Legal Procedure: Law, Custom and Tribal Politics in Western India.

Daniela Berti is a social anthropologist working on Northern India. She is a research fellow ("Chargée de recherche")at the French National Centre for Scientific Research (CNRS, Paris) and is attached to the Centre for Himalayan Studies. She was a visiting scholar at the Mc Millan Center at Yale University during the fall of 2007 and 2008. Her earlier works deal with ritual linguistic interactions and with the persistence in today’s political institutions of politico-ritual roles and practices formerly associated with kingship. She is currently working on a project on the anthropology of judiciary cases in Indian District Courts. This is part of a larger four-year programme she coordinates with Gilles Tarabout funded by the French National Agency and entitled Governance and Justice in Contemporary India. She is the author of La Parole des dieux. Rituels de possession en Himalaya indien, Paris, CNRS, 2001; (with Gilles Tarabout) of the edited volume Territory, Soil and Society in South Asia,Delhi, Manohar, 2009; and (with N. Jaoul and P. Kanungo) of the edited volume Cultural Entrenchment of Hindutva: Local Mediations and Forms of Convergence, Delhi, Routledge, 2011.

Gilles Tarabout is a social anthropologist who has specialized in the study of society of Kerala. He is a Senior Research fellow (Directeur de recherche) at the CNRS. Until 2009, he was attached to the Centre for Indian and South Asian Studies, Paris, before joining and taking the direction of the Research Centre in Comparative Anthropology at University Paris West - Nanterre. For the past twenty years he has taught courses on Indian society and on the anthropology of religion in various French Universities and Institutes, as well as at the Department of Anthropology and the Department of Religious Studies at Yale University (2007; 2008).

Professor Jeff A. Redding teaches civil procedure and comparative law at Saint Louis University School of Law. Prior to joining the SLU LAW faculty, Professor Redding was an Oscar M. Ruebhausen Fellow in Law at Yale Law School. Prior to his time at Yale, he held research positions at Harvard Law School (Islamic Legal Studies Program) and Columbia Law School (Center for the Study of Law and Culture). He has also worked with various law-related organizations in Pakistan, India, and Egypt. Professor Redding earned his J.D. from the University of Chicago Law School.
Professor Redding's research interests are in the areas of comparative law and religion, comparative secularism, legal pluralism, and family law, and he is a participant in the transnational “JUST - India” research consortium concerning justice and governance in India and South Asia.

K. Sivaramakrishnan is Professor of Anthropology and Forestry and Environmental Studies at Yale University. He also serves as Chair of the South Asian Studies Council in the Macmillan Center for International and Area Studies at Yale University. His areas of research expertise include: environmental history, political anthropology, cultural geography, development studies, and science studies, with a particular focus on the colonial and contemporary history and anthropology of forests and wildlife conservation in eastern India. His recent books include: The State in India after Liberalization: Interdisciplinary Perspectives (edited with Akhil Gupta, Routledge 2010); Ecological Nationalisms: Nature, Livelihoods, and Identities in South Asia (edited with Gunnel Cederlof, University of Washington Press, 2006); Regional Modernities: The Cultural Politics of Development in India (edited with Arun Agrawal, Stanford University Press, 2003) and Modern Forests: Statemaking and Environmental Change in Colonial Eastern India (Stanford University Press, 1999.

Mrinal Satish works and teaches in the area of criminal law. He holds B.A., LL.B (Hons.) and LL.M degrees from the National Law School of India University, Bangalore and a LL.M degree from Yale Law School. He has been a member of the faculty at the National Law School, Bangalore and the National Judicial Academy, Bhopal. Mrinal is currently a resident J.S.D. candidate at Yale Law School. His doctoral research focuses on sentencing in sexual offences in India.

Muneer Ahmad is a Clinical Professor of Law at Yale Law School, where he co-teaches in the Transnational Development Clinic and the Worker and Immigrant Rights Advocacy Clinic (WIRAC). In WIRAC, he and his students represent individuals, groups and organizations in both litigation and non-litigation matters related to immigration, immigrants’ rights, and labor, and intersections among them. He has represented immigrants in a range of labor, immigration, and trafficking cases, and for three years represented a prisoner at Guantanamo Bay, and has written on these and related topics In the Transnational Development Clinic, Professor Ahmad and his students work on projects designed to identify productive sites for intervention for U.S.-based lawyers in global poverty work. This has included work regarding the rights of street vendors in India, the barriers faced my immigrant communities in sending remittances to their home countries, and advocacy on behalf of workers displaced by changes in trade policy. Previously he was Professor of Law at American University Washington College of Law. Prior to joining the faculty at American in 2001, he was a Skadden Fellow and staff attorney at the Asian Pacific American Legal Center in Los Angeles.

Narendra Subramanian studies the politics of nationalism, religion, ethnicity, gender and race, primarily in India. His work explores the role of identity politics in political mobilization, electoral competition, public culture, and public policy; the functioning of democracies amidst social inequalities with long histories; and different ways in which policy-makers and citizens attempt to resolve the tensions between official secularism and the significant presence of religion in public life. He is Associate Professor of Political Science at McGill University. His book, Ethnicity and Populist Mobilization: Political Parties, Citizens and Democracy in South India (Oxford University Press, 1999), explored how mobilization behind language and caste banners strengthened democracy in parts of India. He is completing a book manuscript titled Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India, which examines the personal laws specific to religious group, as sites in which official nationalism, multiculturalism, secularism, and citizenship were formed. A new project of his compares the effects of enfranchisement on the socio-economic status of India’s lower castes and African-Americans, focusing on two regions of particularly high ascriptive inequalities – the Kaveri delta in southern India and the Mississippi delta in the southern United States. Subramanian received his B.A. from Princeton University, and his M.A. and Ph.D. from the Massachusetts Institute of Technology.

Nicolas Jaoul is a researcher in Anthropology at the CNRS, attached to the Institut de Recherches Interdisciplinaires sur les Enjeux Sociaux (IRIS, EHESS, Paris) and affiliated to the centre d'Etudes de l'Asie du Sud. In continuity with his doctoral thesis (EHESS, 2004) on the Ambedkarite movement in Uttar Pradesh, he further specialized on the ethnography of the underprivileged’s relationship to Indian democracy.

Sanjay Upadhyay, Founder and Managing Partner of the India’s first environmental law firm, has been practicing environmental law since 1993. An India Visiting Fellow at the Boalt Hall School of Law, University of California, Berkeley (Fall 1996) and a legal intern to the Earth Justice Legal Defense Fund, San Francisco, he started his professional career at the World Wide Fund for Nature– India at the Centre for Environmental Law. Sanjay has served as an environmental and development law expert to most well known International, Multilateral, national and state Institutions. He advises and holds key policy positions in national as well as state governments within India. The recent appointments include being the drafting Committee Member for two key legislations of Government of India; the Wildlife Protection Act and the much talked about Forest Rights Act as well the Rules. Most recently Sanjay has been commissioned to draft the Renewable Energy Law for India. Sanjay has also been a Member, with a rank of Minister of State for the Commission on Environment and Social Policies and Programs appointed by the Government of Sikkim. He is currently the member of the State Environment Impact Assessment Authority of the state of Arunachal Pradesh in the North East India. Sanjay has also been instrumental in drafting the first Forest Sector Policy of the hill state of Himachal Pradesh.
His areas of expertise is environment and development law and more specifically the legal and policy dimensions of natural resource management, energy especially renewable energy, climate policy, environment impact assessment, integrated water resource management, decentralisation and tribal self rule , biodiversity, forestry, joint forest management, eco development, wildlife conservation, national parks and sanctuaries, marine and coastal ecosystems and environmentally sustainable residential/commercial housing in urban areas and financial sustainability of tiger reserves among others.

Shalini Randeriahas been Full Professor of Social and Cultural Anthropology at the University of Zurich since 2003. She is also a member of the scientific board of the University Priority Research Programme "Asia and Europe". She studied Sociology and Social Anthropology at the Universities of Delhi and Heidelberg and completed her PhD and habilitation at the Free University of Berlin. She was a Rhodes scholar at the University of Oxford, a Fellow of the Institute of Advanced Studies Berlin, Max Weber Professor for Sociology at the University of Munich and Full Professor and Chair of the Department of Sociology and Social Anthropology of the Central European University Budapest. In 2007 she was elected President of the European Association of Social Anthropologists (EASA) and Member of the International Sociological Association (ISA) Board of the Research Committee (RC 09) on Transformation and Sociology of Development. She is a member of the steering committees and scientific advisory boards of a number of European research networks and institutions both within and outside universities.

Srimati Basu is Associate Professor of Gender and Women’s Studies and Anthropology at the University of Kentucky. Her research on women and inheritance has been published in She Comes to Take Her Rights: Indian Women, Property and Propriety (SUNY Press, 1999). She is also the editor of the Dowry and Inheritance volume in the in the Issues in Indian Feminism series (2005), and has written on property, law, kinship, and violence. She is presently completing a manuscript entitled "Marital Repair: Family Law and Feminist Interventions in Contemporary India" based on fieldwork in family courts, police stations and mediation organizations.

Vinay Gidwani works on capitalist transformations of agriculture and agroecologies, and their inter-connections with cities through labor and capital flows. He is presently working on urban and regional circuits of waste, and the labor processes that emerged around these, in the growth of metropolitan Delhi post-1930. This study is part of a longer research project on the spatial histories, political uses, and contemporary global political economy of waste. Gidwani is the author, most recently, of Capital, Interrupted: Agrarian Development and the Politics of Work in India (Minnesota, 2008). He is Associate Professor of Geography and Global Studies at the University of Minnesota and Adjunct Associate Professor of Geography at The Graduate Center, City University of New York.