ANR Programme 2009-2013
image of courtroom
A Joint Programme on Justice and Governance in India and South Asia
(Hosted by Centre for Himalayan Studies)

Yale, 2011: Law and Social Exclusion

Law and Social Exclusion in India

Organized by the South Asian Studies Council, Yale University, and Just-India, held on May 13th-14th, 2011 at the MacMillan Centre, Yale University



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.



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.

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.

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

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