Session #1: Friday, 9 January, 13.30 - 15.15 (CSLG)
Panel coordinator(s): Balakrishnan Rajagopal, Ford International Associate Professor of Law and Development, Director, MIT Program on Human Rights & Justice, Massachusetts Institute of Technology (braj@mit.edu)
Chair/discussant: Balakrishnan Rajagopal, Ford International Associate Professor of Law and Development, Director, MIT Program on Human Rights & Justice, Massachusetts Institute of Technology (braj@mit.edu)
Panel description
Panelists, paper titles, and abstracts
Law has been central in the struggle of Dalits towards equality and freedom. From the role played by Dr. Ambedkar in the making of the Indian Constitution to the rise of international law as a central element in dalit mobilization, law has played an influential role in the rise of dalit consciousness and struggle, at many scales, from the local, informal to the national, and global. This panel attempts to take stock of the achievements of law-based strategies for dalit empowerment and liberation, since India's independence and map out future challenges. In particular, this panel is interested in the constitution of a dalit identity and its relationship to law, the relationship between dalit and women's struggles for equality, the record of major local, national and international institutions in the dalit struggle, the relationship between the Indian State, democracy and dalit movements, and the impact of development and globalization on the dalit encounter with law.
This paper will analyze the Dalit movement as a global justice movement, and explore the relationship between international law, domestic law, actors at multiple scales including NGOs, the Indian State, and international organizations, and the Dalit movement. Locating the analysis within a theoretical framework of 'global legal pluralism', a notion previously articulated by me (among others), the paper will argue that the Dalit movement is a pre-eminent example of a 'law-based movement' which has resulted in notable successes while also deradicalizing itself. The paper will look at four key areas of Dalit mobilization to substantiate its argument; the argument that caste is race and therefore discrimination on the basis of caste is also subject to global opprobrium; the mobilization around the category of 'land rights' and the ambiguous consequences of this strategy; the mobilization on regulating 'decent work', especially its campaign on the elimination of manual scavenging; and finally, the mobilization around the issue of reservation in the private sector.
This paper will attempt to plot the relationship between sociology of caste, anti caste movements and jurisprudence. Ambedkar will serve as my point of departure. The themes in his early essay anticipate contemporary debates on the anthropology of law and human rights: asserting that caste is a product of social relations, and does not have divine origins; looking at the comparative contexts of “ideas of pollution”; situating the analysis of caste endogamy-exogamy within larger anthropological discourses on marriage practices; integrating the concerns of social reform into the anthropological project; addressing the relationship between social practice and the rise of philosophies around those practices (“At all times, it is the movement that is the most important; and the philosophies grow around it long afterwards to justify it and give it a moral support”); examining the place of the individual as distinct from classes in Indian society; interrogating the bases of western scholarship on caste and situating the theoretical analysis of caste within a constitutional framework after independence. What is the relevance of this framing of issues to sociological discourse on caste on the one hand and judicial discourse on caste on the other?
This paper will examine the new forms of legal personhood imagined by the Constitution as a major watershed in the the (re)constitution of caste subjectivity, particularly the imagination of the Dalit as political subject and as minority. By examining the manner in which the relationship between caste and democracy are reimagined--legislated, in fact--at the moment of postcolonial transition, and by paying particular attention to the manner in which caste comes to be embedded within conceptions of the Indian secular and of social equality, this paper seeks to provide a framework for understanding the centrality of caste for a genealogy of 'Indian' democracy.
With all our love for development and growth, which historically have been linked to welfare of all and bringing about equality and equal opportunity for all, we seem to ignore the history which time and again has taught us that without changing the conscience and the our belief system both growth and development will enhance inequality. Is it fair to leave the responsibility of human rights on law and the legal system which itself is a part of the system that we constantly seek to change? Have good and progressive legislations in the absence of ensured structure and system of implementation been a good face to our passion for human rights? What are the political programs that we have to address deep division of population by caste, religion, regionalism, ethnicity, and gender the least? We need to look beyond the law.
In the tradition of political philosophy, the realm of Law has enjoyed a mixed reputation. In the idealist phase of it and the classical liberal phase Law enjoys a lot of respect. So is not the case with the tradition of anarchist who treats the intervention of law as highly undesirable. These perspectives differ in terms of their emphasis on a particular social context. For example, the idealist put every thing into the basket of the ethical state and philosopher king. The liberal positions with varying degree of emphasis would put every thing in favour of Market and civil society. This involvement of law would involve the state response ranging from the minimum intervention of law and the state to ‘effective’ intervention. For liberals the market rationalist would insure the stability of the system. The anarchists who are on the other side of the spectrum would put every thing in favour of the society. They would invoke the language of heart rather than mind for ensuring the stability and harmony in the society. This obviously eliminates the role of law in governing the social relationship. The liberal universe within which social science operates, is governed by the minimalist view of the state. This intervention of law invokes the foucauldian response which would put law under scanner. In all, the presence of law in the public domain, is caught up between Foucaultian discipline and punish on the one hand and impracticability of Kantian categorical imperative on the other. Is there a fourth position possible?
I would like to argue in the paper, that there could be a fourth position that would blend the normative and the rational into an effective combination. To put differently, it could go close to Buddha’s Madhyam Marg. Madhyam marga would avoid the two extreme possibilities. As a part of this, I would like to provide the critique of the failure of the constitutional/legal morality in the context of the growing judicial activism, which involves the provision for more and stricter punitive legal injunction to discipline the recalcitrant society. I would also try and argue that while the Foucaultian position is attractive but paradoxically it does not win the support form those who are facing this govermentalization. In fact hypothetically they choose to walk into the technology of the state including law. I would like to pursue this line of inquiry by providing certain evidence form India.