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

Session #2: Tuesday, 28 December, 11.15 am - 1.00 pm (Chanakya 1)

Panel coordinator(s): Jinee Lokaneeta

Chair/discussant: Manoranjan Mohanty/Arvind Narrain

Panel description

Panelists, paper titles, and abstracts

  1. Ajay Gudavarthy , Human Rights Movements in India: State, Civil Society and Beyond
  2. Sitharamam Kakarala, Critiquing the Critique: Balagopal and the Reframing of the Idea of Human Rights in India
  3. Anuj Bhuwania, The Procedural is Political: Public Interest Litigation and its Discontents
  4. Jinee Lokaneeta, Paradoxical State Killings: Encounters and the Death Penalty

Panel description

This panel is dedicated to a critical engagement with the writings of K. Balagopal, a foremost theoretician, human rights activist and people’s lawyer, whose death in October 2009 was a stunning blow to left and progressive communities in India and elsewhere. In addition to his formative influence on both Andhra Pradesh Civil Liberties Committee (APCLC) and Human Rights Forum (HRF), Balagopal was well known for his incisive analysis, prolific writing, and, in particular, his provocative and direct style of engagement posing uncomfortable questions for theoreticians and practitioners alike. In that spirit, each of the Panelists will present on a theme that has been greatly impacted by Balagopal’s work. While constantly challenging state repression, Balagopal was careful to analyse the changing nature of state power and law’s violence. Similarly, despite being at the forefront of protests against state brutality, Balagopal raised questions of morality and ethics for radical left political movements, and questions of autonomy for the human rights movements. Balagopal questioned a consequentialist approach to procedural norms in the context of criminal trials that also poses challenges for current debates on Public Interest Litigation. In all, this panel represents a continued conversation with Balagopal and some of the themes that emerged under his affective leadership.

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Human Rights Movements in India: State, Civil Society and Beyond

Ajay Gudavarthy, Centre for Political Studies, JNU (*)

This paper is an attempt to trace the various phases of the human rights movement (HRM) and the assumptions underlying each of them in terms of the inter-relationships between the state, civil society and democracy. The 1970s witnessed the first phase of the HRM— the ‘civil liberties phase’—working within the framework of state-civil society complementarity. HRM along with emphasising the autonomy of institutions also struggled to recover a ‘rights based civil society’, where all citizens could have access to fundamental rights. The 1980s were marked by a shift to the second phase — the ‘democratic rights phase’—with a new state versus civil society framework. During this phase, the HRM made efforts to construct civil society as a pure ‘realm of freedom’ that stood squarely outside the state and consisted of various militant and radical social movements. Towards the end of the 1990s, the third phase — the ‘human rights phase’—reconstituted itself on a new civil society versus political society framework. The new political society stressed the importance of locating and condemning human rights violations at the civil societal level, including those committed by radical social movements. Finally, the contemporary moment is ironically striving to move beyond the political by basing itself on an abstract moral dimension.

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Critiquing the Critique: Balagopal and the Re-framing of the Idea of Human Rights in India

Sitharamam Kakarala, Senior Fellow, Centre for the Study of Culture and Society (*)

This paper will address certain concerns about conceptualising the idea of ‘rights’ in the making of human rights movement in India and the role of Balagopal in re framing the terms of the debate that lead to a ‘paradigm shift’ in human rights praxis, especially, though not exclusively, in Andhra Pradesh.

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The Procedural is Political: Public Interest Litigation and its Discontents

Anuj Bhuwania, Department of Anthropology, Columbia University (*)

K. Balagopal’s critical interventions in the civil liberties movement in India have led to vigorous debates on the political status of procedural norms in criminal trials, in particular questioning the tendency to view these norms in a ‘consequentialist’ manner. However, court procedure more generally (as opposed to that of criminal trials of serious offences alone) continues to be commonly understood in instrumental terms and seen as being of limited political importance. Even the Indian Supreme Court has adopted the rhetoric of viewing legal procedure itself as an impediment to justice: constitutional provisions like the Supreme Court’s power to do ‘complete justice’ under Article 142 have been interpreted in ways that enable the Court to go beyond statutory law and overcome all procedural norms, most notoriously in the Bhopal judgement of 1991. Clichéd rants against “procedural technicalities” using phrases like “Procedure is a handmaiden of justice and not its mistress” are repeated ad nauseam in appellate court judgments and courtroom speech. This impatience with procedure, I will argue, has taken particularly extreme forms in the context of Public Interest Litigation (PIL). The remarkable extent of malleability of procedure under PIL and the widespread celebration of the procedural departures introduced by PIL reveal the kind of political disrepute that legal procedural norms enjoy in contemporary India. In this paper, I will take the example of PIL to argue against such lack of political concern for court procedure. The politics of courts, I will argue, is also located in its material forms and closer attention to these procedural norms is key to any political understanding of law.

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Paradoxical State Killings: Encounters and the Death Penalty

Jinee Lokaneeta, Department of Political Science, Drew University, New Jersey (*)

In this paper, using Balagopal’s seminal piece on death penalty and systematic work on encounter killings as a framework, I explore the paradoxical nature of state killing in India. The paradox is represented by the fact that on one hand the number of encounter deaths (denied by the state) remains extremely high while on the other hand, death penalty (authorized by the state) has declined in recent years. The recent killing of Azad, a leader of the Maoists who was allegedly picked up by the Andhra police and shot dead, alongside the ongoing CBI enquiry into the encounter of Sohrabuddin (implicating high officials of the Narendra Modi government) is a stark reminder of how encounter deaths are a large part of the reality of the functioning of the Indian state. Apart from a long history of encounter deaths in the context of radical left movements in Andhra Pradesh, the Indian state has often used encounter deaths in situations such as challenging the Mafia in Mumbai, and the targeting of minorities in many different states of India. In contrast, another form of legalized state killing namely death penalty has declined over the years thereby becoming rare both jurisprudentially (authorized in the rarest of rare cases) and in practice (number of executions). The paradox, I suggest, has significant implications for debates on the nature of state violence in India.

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