Challenging the Rule(s) of Law: Colonialism, Criminology and Human Rights in India
Publication Year: 2008
Over the past three decades human rights movements in India have persistently interrogated systems of criminal justice in the country. The concerns have ranged from addressing the problem of arbitrary detention during the emergency to constructing entire communities as criminal thereby justifying forced dispossession and/or mass violence. While overt violence by state actors and their complicity in violence by dominant private actors has been a major concern, there has also been the problem of the abdication by the state with respect to provision of the means for bare life to a majority of the people, the denial of the right to bare life compounding their vulnerability to a repressive rule of law. There is a widespread acceptance of the fact that the law is unequal ...
- Front Matter
- Back Matter
- Subject Index
- Section I: The Construction of Crime and Criminality
- Chapter 1: Laws of Metamorphosis: From Nomad to Offender
- Chapter 2: Victims and Villains: The Construction of Female Criminality in Colonial Calcutta
- Chapter 3: ‘That Despicable Specimen of Humanity’: Policing of Homosexuality in India
- Chapter 4: Sexual Assault and the Law
- Section II: Vulnerability, Governance and the Law
- Chapter 5: Social Exclusion and Criminal Law
- Chapter 6: Building a Subaltern Women's Perspective
- Chapter 7: Whose Life is it Anyway? Adivasi Communities and Entitlements to Life
- Chapter 8: Preserving Wellness and Personhood: A Psychosocial Approach to the Child
- Section III: Legislating the ‘Other’ and the ‘Extraordinaire’
- Chapter 9: Penal Strategies and Political Resistance in Colonial and Independent India
- Chapter 10: Communities, Gender and the Border: A Legal Narrative on India's North East
- Chapter 11: Parens Patriae: Exercising Patriarchal Prerogative in Post-Partition India
- Section IV: Social Ordering of the ‘Legal’
- Chapter 12: Law and Life in the State of Nature: Archiving Stories from Legal Literacy
- Chapter 13: Revisiting Impunity and Criminality: Of Corruption, Collusion, Consequences and Victims
- Chapter 14: Khap Panchayats in Haryana: Sites of Legal Pluralism
- Section V: Human Rights and Criminal Jurisprudence
- Chapter 15: Crimes, Passion and Detachment: Colonial Foundations of Rule of Law
- Chapter 16: Conspiracies of Association: Associational Offences, Associational Freedoms and the Rule of Law
- Chapter 17: Of Strong Medicine and Weak Stomachs: The Resort to Enhanced Punishment in Criminal Law in India
- Chapter 18: The Contexts of Criminology: A Brief Restatement
Copyright © Kalpana Kannabiran and Ranbir Singh, 2008
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Library of Congress Cataloging-in-Publication Data
Challenging the rule(s) of law: colonialism, crominology and human rights in India/edited by Kalpana Kannabiran and Ranbir Singh.
Includes bibliographical references and index.
1. Criminal justice, Administration of—India. 2. Rule of law—India—History. 3. Crime—India—History. 4. Criminology—India—History. 5. Criminal law—India. 6. Human rights—India. 7. India—History—British occupation, 1965–1947. I. Kannabiran, Kalapana. II. Singh, Ranbir. III. Title: Challenging the rule of law.
ISBN: 978-0-7619-3665-7 (HB)
The SAGE Team: Sugata Ghosh, Richa Raj, Amrita Saha, Trinankur Banerjee
Cover Conceptualised by Vishnu Mohan's Sutras
for Upendra Baxi in solidarity[Page vi]
This collection of essays has taken us three years to complete. It was conceived as part of the project, ‘Strengthening Criminal Justice and Human Rights in India’, supported by the Ford Foundation. We are grateful to Aubrey McCutcheon and Bishnu Mohapatra for their support.
The project housed in NALSAR University of Law, Hyderabad was successfully completed because of the unstinting support of our colleagues at NALSAR. We thank every member of the faculty for making this possible.
Our contributors have made it possible for us to carry this endeavour through, with their interest, enthusiasm and good cheer. This volume developed through conversations with them. We hope that this is only the beginning of a long and fruitful partnership with the entire group.
We thank Sugata Ghosh from SAGE Publications for his prompt and encouraging response and also the entire SAGE team for seeing the manuscript through the press.
Finally, our sincere thanks to our families for having cheerfully borne our absence and preoccupation. Needless to say this would not have been possible without them.
Human rights movements in India have persistently interrogated systems of criminal justice in the country over the past three decades. The concerns have ranged from addressing the problem of arbitrary detention during the Emergency of 1975–77 to constructing entire communities as criminal, thereby justifying forced dispossession and/or mass violence. While overt violence by state actors and their complicity in violence by dominant private actors has been a major concern, there has also been the problem of abdication by the state of the responsibility to secure the right to life to a majority of the people. Immediately after the Emergency, there was a widespread acknowledgement particularly in courts, of the fact that the law is unequal especially in terms of access to and delivery of justice. The acknowledgement that this inequality negated the fundamental guarantee of equality was the direct result of struggles by democratic rights groups in different states. As more and more groups flocked to the Supreme Court to seek ‘extraordinary remedies, transcending the received notions of separation of powers and the inherited distinctions between adjudication and legislation on the one hand and administration and adjudication on the other’, for unusual problems ‘arising from repression, government lawlessness and administrative deviance’,1 we witnessed the emergence of a ‘juridical democracy’—not without its shortcomings, but important nevertheless—with activists, lawyers and judges crafting intellectual resources hitherto unknown, in order to entrench democratic values firmly in the public domain.2
Through a painstaking mapping of the crisis in the legal system in India, and comparative analyses of constitutionalism and the rule of law, Upendra Baxi sets up several signposts, which would be productive to recall at the beginning of this volume. A cursory examination of Baxi's work points us to the different levels at which his work has been relevant to an understanding of human rights and criminology—in judicial decision making,3 advocacy, resistance politics and theory. The authorship of the essays contained here mirrors this diversity in his engagement with law. The first part of this brief introduction will sketch, in a somewhat arbitrary fashion, a small part of Baxi's writing on the concerns voiced in the chapters in this volume. The second part will outline the scheme of this collection.[Page xii]
Looking at the problem of construction of crime and criminality in the context of the recommendations of the Malimath Committee on Reforms of the Criminal Justice System, Baxi critiques the view of crime that targets ‘“habitual,” “violent” and “absconding” offenders’ rather than the ‘highly placed political suspects prima facie responsible for violence of the 1984 Sikh massacre, 6 December at Ayodhya, and the ensuing carnage [or] the perpetrators of awesome complicity in crimes against Indian people manifest in Gujarat, 2002 events.’4 Further, constructing ‘criminality as a human rights violation’, is completely contradictory to the constitutional reading of human rights5 and guarantees impunity to those who routinely perpetrate atrocities and ‘unthinkable violence’ on entire communities that have already been labelled ‘habitual’ offenders. What does a critical engagement with law mean in this context? ‘If the law is the crooked mirror of perverse social domination, its smashing, the “trashing” of the law, is at best an idle pastime. If, however, the law is also the constitutive condition of production/re-production [of rightlessness], it offers among the first sites of struggle against cultural and political domination.’6
There is the third situation where the law is neither a crooked mirror, nor the basis for denial of rights and dignity, it rather defines the constitutive basis of equality and non-discrimination. The Indian Constitution prohibits practices of untouchability, agrestic serfdom and trafficking in human beings. And yet, there is extensive documentation of the ways in which gross violations continue, finding their justification in civil society and culture. Anticipating the questions raised by human rights movements and anti-caste movements that drew international attention to the specific practices of caste discrimination within the framework of the UN Convention on the Elimination of All Forms of Racial Discrimination, Baxi asks, ‘if over a period of time the State policies do not become effective, even at a minimal level, should this amount, under the definitional formulation, to a violation of international law? If ameliorative measures require resources at desired levels and a State fails to raise or provide these, should this be considered among “encouraging” or “condoning” “practices”? …[S]hould in principle the failure of the State to cope with repressive cultures and social structures with expedition be considered a violation of international law? If so designated, what consequences may follow?’7
The question of state complicity through neglect takes us back to the conceptualisation of impoverishment and the problems therein. Critiquing the strong paternalism that imbues anti poverty programmes, Baxi uses the term impoverishment instead of poverty, as a way of reconceptualising economic relations, so that the impoverished emerge ‘as a series of diverse groups, and individuals within these…[who] have been impoverished, or maintained as such, by different causative factors and forces at different moments of domination.… The impoverished…quite often…display collective associational strength’ thereby inviting horrible repression. In the face of such repression, they ‘forge their own weapons of resistance and rationalization.’8 In a perennial spiral, the violence of developmental judgements/decisions is reinforced by the militarisation of governance and militarised state response is met by the assertion of insurgent groups that collective [Page xiii]political violence is the only road to justice for the people. And this in turn leads to an exponential growth of para-military forces on the one hand and increasing numbers of ‘rightless’ people on the other.9
At another level, the most expedient ways that governments have found to deal with agitational politics has been ‘preventive crisis management’ whereby direct action that poses the most serious threat to stability is dealt with urgently, while more passive, ‘lawful’ petitioning is met with endless deferral.10 The important question before us today is how does this crisis management criminalise associational freedoms exercised through agitational politics, especially the right to strike? What are the historical roots of this suppression of strike and protest?
What is the relationship between constitutionalism, colonialism and foundational violence. Mapping the ‘perfectability of modern notions of constitutionalism in the metropolitan societies’ and the simultaneous ‘denial of its tenets in the juristic and juridical terra nullius constituted by colonies’, Baxi traces the formation of ‘epistemic legal racism’ which establishes ‘the patterns of perfection for fractured growth of liberal rule of law notions in the metropolis with a reign of terror elsewhere.’11
Human rights resistance, in the ultimate analysis, is located in the context of radical evil. In confronting and interrogating violations, human rights paradigms open up further sites of resistance—by asserting the rights of all people to self-determination,—‘a right to a voice, a right to bear witness to violation, a right to immunity against disarticulation by concentrations of economic, social, and political formations.’12 This immediately foregrounds an ethic of power, which prevents the imposition of violence whether in the name of sovereignty, imperialism or patriarchy or, in our times, community. ‘[E]ngaged human rights discourse’, Baxi observes, ‘makes possible a deeper understanding of the politics of difference.… It insists that the Other is not dispensable. It sensitises us to the fact that the politics of Otherhood is not ethically sensible outside the urgency of the maxim: “Ask not for whom the bell tolls; it tolls for thee.” It insists with Rabbi Israeli Salanter that the ‘material needs of my neighbour are my spiritual needs.’13
Constitutionalism, then, is no longer the monopoly of the dominant to be used ‘to pronounce decisions concerning the state of exception’. Subaltern constitutionalism ‘crystallizes [a multitudinous register of diverse] citizen practices of reimaging democracy, politics, and the fullness of democratic citizenship.’14
This collection of essays re-examines the field of criminology through an interdisciplinary lens, speaking to Upendra Baxi's concerns and work in India, challenging in the process unproblematic assumptions of the rule of law and opening out avenues for a renewed, radical and situated restatement of the contexts of criminal law.15
Section I focusses on the construction of crime and criminality in the colonial period. The British instituted a piece of legislation, the Criminal Tribes Act (CTA) in 1871. The purpose of the Act was to suppress ‘hereditary criminal’ sections of Indian society. CTA was first applied in [Page xiv]North India and in 1911 a revised version was applied to the whole of British India. A total of about 200 communities were affected by this law. Meena Radhakrishna traces the history of this legislation and the discursive evolution of a nomad into a criminal, through a process of comparison and association. Even while the concept of crime was undergoing a change and pre-colonial practices were being increasingly designated as crime, socio-economic tensions in the new wave of urbanisation, Sumanta Banerjee argues, gave birth to new types of crimes that were driven both by poverty and rising ambition among sections of the urban middle class. Accounts of women criminals in colonial Calcutta that are available in police records and writings of contemporary observers are tinged with a misogynous bias that proceeded on a number of assumptions—from biological positivists to stereotypes of the sexual enchantress and views that held female law-breakers to be delinquents of a special type who were in essence non-women. Yet, Banerjee argues, if one reads between the lines of these highly misogynist accounts, one can discover occasionally the complex forms of social oppression and economic exploitation that led these women to break the law. If sexual behaviour has been a key determinant in the construction of women's criminality in the colonial period, how does this get further polarised with respect to sexual orientation? Sodomy as a crime has been implanted into Indian society in the form of Section 377 of the Indian Penal Code. What is the social role, Arvind Narrain asks, which is served by the constitution of carnal intercourse as an offence? Of course the reason for criminalisation can be read in the Judaeo-Christian framework of morality animating the colonial administrators of the day. In the changed context of an independent India, what role does it play in bringing about the ‘normality’ of everyday life and in keeping in place the structure of family and community? Is the idea of heterosexuality as normal really underpinned by the continued stigmatisation of the homosexual as abnormal? Within practices of heterosexuality, the issue of sexual assault has been one that has confounded Indian courts over the past three and a half decades. While the problem to begin with, was the way in which the offence of rape was constructed in the Penal Code, the more difficult and insurmountable problem had to do with the place of rape and more fundamentally, that of the woman's body in the social imaginary in India. Tracing the debates within courts and in communities on the issue of consent and sexual assault from the colonial to the contemporary period, Kalpana Kannabiran attempts to unravel the complexity of the problem of rape and the multiple locations of justice to survivors, in an environment that is at best hostile.
Section II examines questions of vulnerability, governance and law. Dalit and Adivasi communities, women and children have always been vulnerable to the perpetration of structural crime, a vulnerability that has been compounded by the complete lack of effective access to systems of justice. Although the Constitution assured the dignity of the individual human being in its Preamble, it was only four decades later that a statutory prohibition of manual scavenging was provided for through the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act which was passed in 1993. Similarly, the Bonded Labour System (Abolition) Act was enacted [Page xv]only in 1976, although Article 23 of the Constitution was already in place in 1950. S.R. Sankaran examines the network of Constitutional and penal provisions on the question of social exclusion and explores the implications of these realities for an understanding of criminology in India. The criminal justice system fails to take into account systemic discrimination embedded in the policies, procedures and culture of public and private institutions. Jayashree P. Mangubhai and Aloysius Irudayam S.J. argue that the focus of criminal law on maintaining law and order, often obscures the wider social problems that feed the cycle of crime. What exists today therefore is an atmosphere of impunity for gender crimes against Adivasi and Dalit women. Even though the Constitution of India guarantees equality and the right to life and livelihood to all its citizens, there is a large section of the population whose every day existence itself is illegal. The Adivasis live on and cultivate lands, which have been declared sanctuaries or national parks. One of the few options available to these citizens to protect their rights is to organise themselves and protest against state action, policy and law. The state has used brutal force to disperse these demonstrations to ensure that there is no further attempt to raise their voices again. By tracking adivasi protest movements on threat of eviction and loss of livelihood since 2000, Seema Misra examines the legislative and judicial responses to the questions of illegality of existence of the impoverished. Arguing on the need for an integration of mental health and law so as to ensure sensitive and ethical ways of dealing with children under the law, Shekhar P. Seshadri and Kaveri Haritas explore the status of children under Indian criminal law and address various aspects of the relationship between children and law: the conflict between the provisions of the Juvenile Justice Act and other rights of the child; questions relating to the credibility of child testimony, both in the case of child witness and the child victim; the lacuna in substantive law to specifically provide for child sexual abuse, and re-victimisation of children under the prevalent insensitive procedures; the treatment of child victims of trafficking and the need for substantive and procedural law to focus on healing mechanisms for the child victim of sexual abuse apart from the focus on penalising the abuser.
Section III looks at the ways in which borders and boundaries have been legislated over the past century. By exploring the discursive practices surrounding specific laws, trials, and the ideology of punishment in colonial and independent India, Ujjwal Kumar Singh attempts to demonstrate the ways in which the penal system delineated the exceptional and the extraordinary and built legal and penal practices commensurate with it. How do doctrines of necessity validate the suspension of ordinary laws and procedures, identifying in the process extraordinariness, which lies within rather than outside borders? More importantly, what implications does this process have for political resistance and assertions of popular sovereignty? Through an analysis of laws such as the Armed Forces Special Powers Act (AFSPA), The National Security Act and so on, Paula Banerjee maps the process through which groups were marked recalcitrant by evolving border laws and then treated as criminals. The evolving history of these Acts, especially the AFPSA, she argues, will demonstrate how a state by institutionalising violence securitises a certain area and how that leads [Page xvi]to the securitisation of the whole region. Women of these communities are portrayed not merely as deviant but their sexuality itself is considered as threatening and so the impact of these laws on women are even more violent. Rape against these women is justified as means of controlling them. It is therefore, not surprising, she observes, that the most vociferous protest against these laws have come from the women who are in the forefront of any such protest movement today, for instance the Meira Paibis. Approximately 14 million people crossed over from one country to the other in 1947, in the brief period following British India's division into India and Pakistan. With regard to abducted persons, the two governments arrived at an agreement in November 1948 that set out the terms for recovery in each dominion. This was followed, in India, by the promulgation of the Abducted Persons (Recovery and Restoration) Act of 1949, which was renewed every year till 1956, when it was allowed to lapse. Ritu Menon argues that in the exercise of providing protection, nurturance and compensation, the government actually withheld or abrogated certain fundamental rights of citizens, and that the language of the acts and ordinances reiterated the penal culture of bounded refugee camps or settlements. Among other things, she argues, the Abducted Persons Act suspended the right to residence of women citizens, as well as their right to choose where and with whom they wished to live. Further, the responsibility of being both mai and baap with regard to abducted women displayed all the classic characteristics of single parenthood—when to be authoritarian, when to nurture—on one hand, and on the other a profound disjunction between the ethics of caring and the exercise of power, as well as the contradictions inherent in the charity versus rights positions.
Section IV examines the specific ways in which the legal is socially ordered. Abha Joshi presents an analysis of experiential accounts and responses of persons drawn from various backgrounds all over the country, attempts to examine the ordinary and unsung ‘criminal’—which includes not only persons who have actually committed crimes, or formally been accused of crimes, but even those who, because of who they are, raise a presumption of being criminals. It will focus on the perception of ‘law’ amongst common citizens as a tool to be feared and avoided; a machine which is commanded by and therefore works best only for those who are affluent or otherwise powerful. The system as it operates, she argues, generates a constant and living ‘fear and insecurity’; it sets limitations on the movements, lives and actions of people where none should rationally or legally be; it engenders a hatred for the state and all its instruments and pushes a person back into the state of nature where men live in a ‘condition of war’. Impunity is considered amongst the most pervasive maladies of the ‘Indian Legal System’. As part of a concerted effort to inform, contribute and participate in, the struggle to transform personal, individual and collective action to secure for every person the most basic human right-justice, Vijay K. Nagaraj examines the social bases of impunity through the specific case of Bhopal and suggests a way forward, looking at the struggles of the Mazdoor Kisan Shakti Sanghatan. K.S. Sangwan looks at Khap Panchayats and the administration of criminal justice in rural Haryana, drawing on extensive fieldwork in the region. [Page xvii]He examines the intersections between the formal criminal justice system and community-based systems, underscoring the complex interplay of identity, power and criminal justice in traditional agrarian societies.
Section V examines the possibility of a human rights reconfiguration of criminal jurisprudence. If the sovereign authority had to thus produce a moral society through criminal legislation, Ranabir Samaddar observes, the issue was how to organise the entire process of legal and moral reproduction of a desired society? This required not only disciplinary interventions and correctional methods and institutions; but also a fascinating set of laws, which had to now posit the wisdom and science of rational intervention against the native intelligence of crime, communication of crime, and the circulation of crime. In short, the relation between society and crime had to be redefined. The period of hundred years spanning the time between the last quarter of the 18th century and that of the 19th century was spent in laying the foundations of an objective science of law and criminal legislation by which an enlightened responsible regime would rule the country. His essay explores what exactly is wrong with the gift of colonial enlightenment in the form of rule of law—the new agency in the perennial story of crime and punishment. Conspiracy as an offence was introduced to the Indian Penal Code in 1913 to deal with the rise of Indian Independence struggle and this provision was constantly used by the British Indian Government and subsequently as an effective weapon to discredit political dissent in independent India. K.G. Kannabiran examines the relationship between distributive justice, associational rights and the use of conspiracy in the law, underscoring the potential of this nexus to erode constitutional and accepted liberal democratic values in independent India. Notions of crime, the administration of justice and the nature and purpose of punishment provide valuable insight into the very nature of a State, reflecting its compulsions, challenges and concerns at the time, while pointing towards the particular interests that the State seeks to serve. In present day India, reform of the criminal justice system has been a long-standing demand of many, to effectively address the growing incidence of crime in Indian society. Unfortunately the call for reform has essentially meant the demand for ‘hardening’ of the system, which also includes increasing the severity of punishment. This is epitomised by the report of the Malimath Committee set up to suggest reform of the Criminal Justice System (CJS) in India. Bikram Jeet Batra reflects on the political economy of crime and punishment in the post-Malimath era. He examines changes in trends in the criminal justice system possibly brought about as a result of change in the character of the Indian state from a colony to a democratic republic. How was independent India's understanding of punishment and crime, he asks, different from that of the former colonial state? Was colonial emphasis on retribution and deterrence effectively done away with, in favour of a more reformative view of punishment? On the contrary he argues, one witnesses the ‘hardening’ of the criminal justice system and increased punishment, particularly with respect to the award and the use of death penalty. In the concluding essay, Kalpana Kannabiran explores [Page xviii]in very cursory fashion some constitutive problems in criminal law and also issues that have a continuing presence and relevance in an understanding of criminology from colonial times, although the contexts in which they are now located have changed radically. This collection is one step (certainly not the first), towards mapping the ways in which interdisciplinary research and human rights activism might inform legal praxis more effectively and holistically.
The contributors are a diverse group—widely respected activists, advocates, bureaucrats, scholars and practitioners—who share concerns on criminal justice systems and the need to entrench human rights in the Indian polity. This volume is the result of our conversations around these concerns. Together we offer this volume as a tribute to Professor Upendra Baxi, our comrade, fellow traveller and friend in the struggle for social justice.Notes & References
1. Baxi, Upendra. 1985. ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, 1985 Third World Legal Studies 107, at p. 108.
2. Baxi, Upendra. 1985. ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, 1985 Third World Legal Studies 107.
3. Some judgements [Supreme Court and High Courts] that make explicit reference to his work and draw legitimacy from his writing are: Avinder Singh vs State of Punjab and Another 1979, All India Reporter (Supreme Court), p. 321 [on the need to democratize legislative endeavours]. Bachan Singh vs State of Punjab, 1982 AIR(SC) 1325 [on arbitrariness of judicial imposition of capital punishment]; K.C. Vasanth Kumar and Another vs State of Karnataka, 1985 AIR(SC) 1495 [on reservations for Scheduled Castes, Scheduled Tribes and other Backward Classes]; Kumari Anjana Mishra and Another vs Principal (K.M. Rustogi, M.L.B. College), Gwalior and Others, 1990 AIR(MP) 120 [on the need for craftsmanship in legal education]; P.V. Kapoor and Another vs Union of India and Another, 1992 (98) Criminal Law Journal 128 [on social action litigation, state repression and death in police firing]. S.R. Bommai and Others vs Union of India and Others, 1994 AIR(SC) 1918 [on defining secularism]; Kapila Hingorani vs State of Bihar 2003 (116) SC 133 [on the impact of globalisation and developmentalism in the context of state irresponsibility, hunger and homelessness]. Apart from this, his interventions (collaborative for the most part) in courts especially on behalf of persons who were vulnerable to or had suffered from unthinkable violence have been critical for movements. For instance, the open letter on the Mathura judgement co-authored by him: An Open Letter to the Chief Justice of India (1979) 4 Supreme Court Cases 17–22, his petititon to the Supreme Court on the conditions in the Agra Protective Home, Dr Upendra Baxi vs State of Uttar Pradesh and Another, 1983 (2) SCC 308 and his appointment as commissioner to investigate the labour protections for persons engaged in skinning dead animals, Gulshan S/O Kallu and Others vs Zila Parishad, Etawah, Uttar Pradesh and Another 1981 AIR(SC) 1668.
4. Baxi, Upendra. 2003a. ‘An Honest Citizen's Guide to Criminal Justice System Reform: A Critique of the Malimath Report’, in The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights, New Delhi: Amnesty International India, 2003, p. 32. Also, his ‘Notes on Holocaustian Politics’, Seminar, May 2002, no. 513.
5. Ibid., p. 9.
6. Baxi, Upendra. 2003b. ‘Foreword’, Human Rights Violations Against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India, PUCL-Karnataka, p. 6.[Page xix]
7. Baxi, Upendra, ‘A Perspective from India’. Available online at http://www.uu.nl/uupublish/content/12-08.pdf, p. 76, accessed on 26 March 2008.
8. Baxi, Upendra. 1988. ‘Introduction’, in Upendra Baxi (ed.), Law and Poverty: Critical Essays, p. viii. Bombay: N.M. Tripathi Pvt. Ltd.
9. Baxi, Upendra. 2006. ‘Development as a Human Right or as Political Largesse? Does it make any difference?’ Founder's Day Lecture, 18 April 2006, Madras Institute of Development Studies, Chennai, (Revised and enlarged 22 May 2006.), pp. 22–23.
10. Baxi, Upendra. 1982. Crisis of the Indian Legal System, p. 8. Delhi: Vikas.
11. Baxi, Upendra. 1999–2000. ‘Constitutionalism as a Site of State Formative Practices’, Cardozo Law Review, 21: 1183–1210. See also, Baxi, Upendra. 2005. ‘The War on Terror and the “War of Terror”: Nomadic Multitudes, Aggressive Incumbents, and the “New International Law”’, Osgoode Hall Law Journal, 43(1&2): 7–43.
12. Baxi, Upendra. 2002. The Future of Human Rights, p. 31. New Delhi: Oxford University Press.
13. Ibid., p. 87.
14. Baxi, Upendra. 2007. ‘The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer's Combat with the Production of Rightlessness in India’, in C. Raj Kumar and K. Chockalingam, (eds), Human Rights, Justice, and Constitutional Empowerment, p. 20. New Delhi: Oxford University Press.
15. Thereby treading paths not worn down by ‘[t]he theoretic indigence of Indian legal education and research’ (Baxi 2007: 8), and striking a balance in the process between ‘the materiality of human violation’ and the conceptual and social histories of colonialism. Baxi, Upendra. 1998. ‘Voices of Suffering and Human Rights’, Transnational Law and Contemporary Problems, 8(Fall): 125–69.[Page xx]
About the Editors and Contributors[Page 477]The Editors
Kalpana Kannabiran is Professor of Sociology at NALSAR University of Law, Hyderabad, where she teaches Sociology and Law. A recipient of the VKRV Rao Award for Social Science Research in 2003 for her work in social aspects of law from ICSSR, she was Member of the Expert Group on the Equal Opportunity Commission, Government of India, 2007–08.
Ranbir Singh, Vice Chancellor of NALSAR University of Law from 1998 to 2008, is currently Vice Chancellor, National Law School, Delhi. He was Member of the DNA Profiling Advisory Committee constituted by the Department of Bio-technology, Government of India and member of the Committee appointed by the Ministry of Home Affairs, to draft a new Police Act. Before setting up NALSAR in 1998, Prof. Ranbir Singh taught Law at Kurukshetra University, Maharshi Dayanand University, Rohtak and the National Law School of India University, Bangalore.The Contributors
Paula Banerjee specialises in issues of conflict and peace in South Asia. She has published extensively on issues of forced displacement. She has recently co-edited a book on Internal Displacement in South Asia (Sage, 2005). She has been working on themes related to women, borders and democracy in South Asia and has published extensively on issues such as histories of borders and women in conflict situations. She is on the editorial board of a number of international journals such as Prachya and Forced Migration Review. Currently, she is teaching at the Department of South and Southeast Asian Studies, University of Calcutta and is Member of the Calcutta Research Group.
Sumanta Banerjee, a former journalist with The Statesman in Calcutta and New Delhi from 1962 to 1973. He is now based in Dehradun and is engaged in research on Social History and Popular [Page 478]Culture of 19th Century Calcutta. He is the author of several books, including The Parlour and the Streets: Elite and Popular Culture in Nineteenth Century Calcutta (Seagull Books, Calcutta. 1989); and Crime and Urbanization: Calcutta in the Nineteenth Century (Tulika Books, New Delhi. 2006)
Bikram Jeet Batra is a Delhi-based lawyer and researcher. He studied law at the universities of Pune and Warwick and is presently Visiting Fellow at the Centre for Study of Law and Governance, Jawaharlal Nehru University, Delhi. Previously, he was Legal Officer at Amnesty International India and Research Associate at the Institute of Advanced Legal Studies, Pune.
Kaveri I. Haritas is a lawyer from India, based in Geneva, working on human rights issues. Her experience broadly covers child rights, gender and women's rights, urban poverty and marginalisation and urban governance issues, combining human rights and development approaches. She is also closely attached to Amba, a Bangalore based non-governmental organisation.
Aloysius Irudayam S.J. is an experienced grassroots activist and a trainer on social issues. He also has authored several advocacy publications: Atrocities against Dalits in India—National Campaign on Dalit Human Rights, Chennai, 2000, Dalits in the World of Globalisation—National Campaign on Dalit Human Rights, New Delhi, 2004, Adivasis Speak Out: Atrocities against Adivasis in Tamil Nadu—Books for Change, Bangalore, 2004, Dalit Women Speak Out: Violence against Dalit Women in India—National Campaign on Dalit Human Rights (NCDHR), National Federation of Dalit Women (NFDW) and Institute of Development Education, Action and Studies (IDEAS), Madurai, 2006. He is presently Programme Director of the Research, Advocacy and Human Rights Education Department in the Institute for Development Education, Action and Studies, Madurai, Tamil Nadu.
Abha Singhal Joshi was admitted to the Bar in 1983. For the past 15 years she has worked at developing and using modules for the spread of legal awareness. Currently, she is Executive Director, Multiple Action Research Group [MARG], a Delhi-based organisation working on diverse legal issues.
K.G. Kannabiran is a Senior Advocate based in Hyderabad and the National President of the People's Union for Civil Liberties. He has written extensively on questions of human rights; in courts across the country, he has defended political activists and people whose human rights have been violated both by the state and private actors and has been a leader of the movement for civil liberties in India over three decades. He is the author of Wages of Impunity: Power, Justice and Human Rights, New Delhi: Orient Longman, 2003.[Page 479]
Kalpana Kannabiran is Professor of Sociology at NALSAR University of Law, Hyderabad, India and founder member of Asmita Resource Centre for Women where she coordinates research and legal outreach for women. She was Chair of RC32 (Women in Society) of the International Sociological Association from 2002–06 and General Secretary of the Indian Association for Women's Studies in 1998–2000. Her areas of specialisation are Sociology of Law, Jurisprudence and Gender Studies. Among her publications are De-Eroticizing Assault: Essays on Modesty, Honour and Power (Stree, Calcutta, 2002), and The Situated Politics of Belonging (London: Sage, 2006).
Jayshree P. Mangubhai is a lawyer activist working in the field of human rights research in India, particularly focusing on rights advocacy for Adivasi and Dalit communities and women. She has authored several advocacy publications: Atrocities against Dalits in India—National Campaign on Dalit Human Rights, Chennai, 2000, Dalits in the World of Globalisation—National Campaign on Dalit Human Rights, New Delhi, 2004, Adivasis Speak Out: Atrocities against Adivasis in Tamil Nadu—Books for Change, Bangalore, 2004, Dalit Women Speak Out: Violence against Dalit Women in India—National Campaign on Dalit Human Rights (NCDHR), National Federation of Dalit Women (NFDW) and Institute of Development Education, Action and Studies (IDEAS), Madurai, 2006, New Economic Reforms: Hope or Mirage for Dalit Livelihoods?—Sakshi Human Rights Watch—Andhra Pradesh, Hyderabad, 2004. She is currently a Research Associate in the Institute for Development Education, Action and Studies, Madurai, Tamil Nadu.
Ritu Menon is a publisher and writer. She is co-author of Borders and Boundaries: Women in India's Partition (Delhi: Kali for Women, 1998); Unequal Citizens: A Study of Muslim Women in India (2004) among others and has edited No woman's land: Women from Pakistan, India and Bangladesh Write on the Partition of India (2004) and several anthologies of stories by Indian women.
Seema Misra is a lawyer based in Delhi. She has been involved in legal literacy and human rights awareness since 1990. She has been working with organisations such as Multiple Action Research Group; Amnesty International, Commonwealth Human Rights Initiative, Satark Nagarik Sangathan and Habitat International Coalition-Housing and Land Rights Network.
Vijay K. Nagaraj currently teaches at the Tata Institute of Social Sciences (TISS) in Mumbai. He has worked as a political activist with the Mazdoor Kisan Shakti Sangathan in Rajasthan and with Amnesty International. His interests are social movements, human rights and socio-legal studies.
Arvind Narrain is a Founder Member of the Alternative Law Forum, based in Bangalore. ALF is a collective of lawyers who engage in a critical practice of law. Arvind works on issues pertaining to [Page 480]human rights and also with specific reference to the human rights of those who are discriminated against on the basis of gender identity and sexual orientation.
Meena Radhakrishna teaches at the Department of Sociology, Delhi School of Economics, University of Delhi. Apart from her other interests, she is engaged in research on laws affecting marginalised sections, especially denotified communities. She has been invited by the Ministry of Social Justice, Government of India to serve on deputation as Director of Research, National Commission on Denotified, Nomadic and Semi-Nomadic Tribes. Meena is the author of Dishonoured by History: ‘Criminal Tribes’ and British Colonial Policy, Orient Longman, 2001.
Ranabir Samaddar is the Director of the Calcutta Research Group, and has pioneered along with others peace studies programmes in South Asia. The recently published Politics of Dialogue (Ashgate, 2004) is the culmination of his work on justice, rights, and peace. He has authored a three volume study of Indian nationalism, of which the third is, A Biography of the Indian Nation, 1947–97 (Sage, 2001). These political writings which include other noted works such as Paradoxes of the Nationalist Time (University Press Limited, 2002) and The Marginal Nation (Sage, 1999) have challenged the prevailing cultural accounts of the birth of nationalism and the nation state, and have brought to fore a new turn in the inquiry into the current history of post-colonial politics in South Asia.
K.S. Sangwan is Professor of Sociology at Maharishi Dayanand University, Rohtak. He has worked extensively on community justice systems and community-based dispute resolution mechanisms with specific reference to Haryana.
S.R. Sankaran is a civil servant who worked in various assignments in the Central and State governments as a member of the Indian Administrative Service and retired as Secretary in the Ministry of Rural Development in the Government of India. His major area of work and concern has been the safeguarding of the rights and the development of the weaker sections of the society, specially the people belonging to the Scheduled Castes and the Scheduled Tribes.
Shekhar P. Seshadri is Professor, Psychiatry, (Child and Adolescent Psychiatry) National Institute for Mental Health and Neuro Sciences, Bangalore. He has much experience in child psychiatry and is one of the senior most child psychiatry experts in Asia. He is widely reputed for his work in the area of life skills training, child sexual abuse, masculinities, sexual minorities, women's mental health issues and related areas.[Page 481]
Ujjwal Kumar Singh is a Reader in the Department of Political Science, University of Delhi, Delhi. Earlier, he was a Fellow at the Centre for Contemporary Studies, Nehru Memorial Museum and Library, New Delhi. He is the author of two books Political Prisoners in India (Oxford University Press, 1998, paperback 2001) and The State, Democracy and Anti-Terror Laws in India (SAGE, 2007). He is currently editing a volume on Peace and Human Rights: Ideas, Institution and Movements to be published by SAGE.