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Session #5: Saturday, 10 January, 14.15 - 16.00 (CSLG)
Panel coordinator(s): Shrimoyee Nandini Ghosh and Namita A. Malhotra (shrimoyee@gmail.com/namita@altlawforum.org)
Chair/discussant: Mary John, Director, CWDS (maryejohn1@gmail.com)
Panel description
Panelists, paper titles, and abstracts
While the body is constantly discursively constructed by the law, the subjected body constantly eludes and exceeds the law's categorizations. The panel hopes to explore some of the means by which the body is discursively and materially constructed and contested in legality's multiple sites, and relationships within and outside the bodies of law. The panel presentations will explore different analogies and metaphors that the law employs at different moments to call the human body into being. To instantiate: the body as (mal) functioning machine, as an animal repository of instincts and urges, as an infantile or vulnerable matter in need to protection of the state, as alienable property, as disparate body parts whose value can be calculated and compensated in the law (damages under labour and accident laws, or in the laws regulating organ trade), as territory that have searchable orifices or as non-material and traitorous minds whose secrets can be revealed by torture.
Through these explorations, some of the questions that the panel would like to raise are
- How are bodies configured in the law, and which bodies or bodily experiences fall outside of this construction? How do bodies both constantly form the material basis of the law's existence, and by their very resistance to legal norms, expose the precarious nature of legal regulation?
- What experiences are incomprehensible and cannot be accommodated in the law? For instance, two women having sex as a bodily experience/encounter or a sexual or romantic relationship between two women is rendered invisible in Indian law and even legal courtroom processes. Though this makes it fall into a grey zone of legality, unlike sodomy or sex between two men, the question that can be raised is what can be made of experiences that live in such legal aporias?
- The law's implicit separation of the legal body from something else – the mind, spirit or soul. How both – the body and this soul/mind/spirit, are then used by the law, like the vulnerability of this undefinable supplement (spirit/soul/ thoughts/brain) to the enthralling illusions and visions that form part of cinema's propensity for engendering evil in the 'ordinary person', or the unknowable 'mens rea' that must be rendered knowable to the law's gaze, using 'scientific' means such as 'Brain Mapping'.
- The body in the law is often seen in relation to other bodies or in a community with them. The law's efforts are often to determine the organization of bodies in society (rehabilitation and displacement measures of the State, housing laws, slum evictions etc.) and often constructs the body as dehumanized numbers and statistics, as bodies not worthy of their legitimate rights, or in the case of a riot as a dangerous crowd, the social order on the verge of breakdown.
- The law also constructs the body as individuated and/or belonging to the person 'inside' it, like in the Medical Termination of Pregnancy Act, 1971 the woman's autonomy over her body is recognized to the extent of allowing her to terminate her pregnancy below three months.
Despite law's sustaining fictions (of citizenship, human rights and other legal discourses), the legal subject is not unmarked and disembodied. She is particular - she has a body, a sex, caste, a race, a sexual orientation, a history, pain, memories. If the moment of being written into the word of the Law – both inaugurates the legal subject, and produces the conditions for her maintenance and survival, we are interested in the question of who is the subject called to the law, and produced and contested in legality's multiple sites? What does she look like? What kind of body does she have? In what ways and in what languages does she speak? What taxonomy of human-ness, sexual difference and citizenship does the Court construct? And who is rendered abject and unliveable by the law's word?
The panel will follow from a seminar course undertaken in National Law School of India University on the same theme of Bodies in Law. This interdisciplinary course will attempt to explore the ways in which the body is constructed in the law, including at a basic level to examine the range of metaphors and modes in which the body is talked about. The attempt will also be to intersect with the construction of body and bodily experience in other discourses. Many of the topics mentioned above and others will be covered in detail in the course. The students are expected to submit a seminar paper at the end of course, and we hope to be able to select from these at least two presentations or case studies to be included on the panel.
What makes us 'men' or 'women'? What distinguishes women from men? Is it the way one walks or the length of one's hair? Or the pitch of one's voice? Does the presence of testicles mean that the body is that of a male, and not that of a female? Categories of male and female are so banal and everyday, that they are fundamental to the ways in which we are able to read the world. Bodies and persons that do not quite fit the binary of male and female or masculine and feminine, immediately undermine and threaten the ways in which we make the world intelligible. Intersex individuals pose a fundamental problem to the way we look at bodies, and challenge the binary of male and female since their sex is ambiguous and their sexual or reproductive anatomy does not correspond to what the medic-legal establishment deems as a "normal" sexual anatomy.
The bodies of intersexed persons do not conform to the social expectation that all human beings belong to one of two clearly marked sex categories, male or female, and are hence culturally unintelligible. In order to render these bodies readable, these bodies must be changed in some way, they must be made normal. Thus, when confronted with such disorderly bodies, the medical establishment treats these bodies as pathologised or suffering or as a body that needs to be normalized to prevent future embarrassment, and hence in need of immediate medical attention; very often this means surgery while the individual is still an infant. The surgery is performed in order to materialize notions of the perfect male or female body. Maleness and femaleness is, quite literally, constructed. In this paper I argue that intersexuality, while it may be statistically uncommon is not a disease or disorder that needs medical attention, and that intersex infants present a socio-cultural emergency, but not a medical one. Following this, I argue that medical intervention on intersex infants should be deferred till a point at which the individuals can decide for themselves if they want surgery and what gender they want to live as, and that any surgery that is to be performed on infants should be medically necessary and not for cosmetic purposes, or that fix the infants biological sex. I further argue that doing such surgery that fixes the biological sex of the infant violates certain human rights principles.
‘The regime is looking at you, it is saying, “Look at them enjoying”.’
Jacques Lacan
The body is constructed in different discursive regimes of which the legal is only one. To recover a body with memories, thoughts, stories, feelings from the law, or to recover a sense of bodily experience, would be a fraught exercise if we weren’t also acknowledging the ways in which the body is constructed in several discourses ranging from cinema to medicine. There also must be a constant effort to ensure that we don’t fall into a false binary that sets up the law as a disembodied system from which corporeal bodies in their wholeness (their thoughts, memories, narratives or particularities of who they are, race, caste, gender) can be ‘rescued’. Some scholarship points to how there has been infact a disappearance or effacement of bodily experience from perception as such (The Absent Body, Drew Leader; Bodies of Law, Alan Hyde). An example of this would be how cinema is constructed as a visual experience, rather than a bodily experience, and legal discourse plays an important role in this construction. Even in initial judgments that dealt with cinema, it was likened to sorcery and magic (Mutual v. Ohio) and comparisons were made to optical illusions that trick the eye and could confuse and befuddle people. The metaphors used in the law talk about censorship and prohibition of cinema are always in terms of the gaze, thus narrowing it down to a much simpler object that can then be controlled, censored, chopped up and shown to the public.
However, work by Richard Dyer and other scholars of media studies explore cinema as not only a purely visual experience, but as a bodily experience. Certain ‘body genres’ such as melodramas, horrors, comedies and pornography that are associated with specific bodily reactions (tears, scream, laughter, orgasm), have also within culture studies not merited enough attention. Recent work especially on the phenomenological experience of cinema show how the relation of the ‘viewer’ to the film, is about a bodily experience, where the body of the film relates and touches the body of the person.
In this confusing terrain of the anathema of legal studies to venture into the bodily and the distaste in media studies to do the same, this paper tries to introduce pornography. Most explorations of pornography and obscenity, discuss it in liberal terms in the context of free speech, obscenity jurisprudence but mostly to point out the slipperiness of such a category where the State is the arbiter. Renowned works of art, literature, radical feminist critiques etc. have all been described as pornography. This entails a discreet turning away from pornography itself. In a strange parallel to the State’s reaction to pornography, where covert and illicit (mass) consumption is acceptable, but as soon as it becomes ridiculously public and flagrant (DPS MMS clip) the State has to take notice and clamp down on pornography, academic scholarship too seems to shy away from the study of pornography, even while interrogating questions related to obscenity, censorship, disgust, public morality.
This paper also steers away from an exercise that exhaustively examines Indian porn or erotica as a taxonomical exercise of categorization. Such an interest in the array of available Indian pornography (from Savita Bhabhi to the paucity of gay Indian porn) might be better served by actively engaging in the making of exciting pornography that address different needs and desires. The interest of the paper lies in what the State’s reaction to pornography (that it does not name in the law as anything separate that cannot be subsumed into the category of the obscene) reveals about the anxieties of the State around sexual practices, illegal subjectivities and duplicitous citizen-bodies. Rajyadhyaksha points out in his study of Pramod Nawalkar’s cultural policing efforts in Mumbai, that “…in a clear shift of subject matter, what we are now seeing is an explicitly politicized moral censor looking at all this—looking not so much at the sex industry as at society-in-general, at society itself now theatricalised into a morbid stage of sleaze.” It is thus possible that pornography (as such) is not where the anxiety of the State lies, which is more concerned with a production of a moral superior position from which to view the decadence of the contemporary. What the digital age, with its ease of circulation and spread, does is to produce anxiety about new and old spaces, sexual practices and the subjectivities that are produced or engage in this. Who is watching porn? How are they watching it? Are children in schools watching and producing pornography? Are women at homes watching pornography? Are married men using the internet to meet and have affairs with other married women or hook up with men for sex? The paper attempts to explore these anxieties, through an interdisciplinary enquiry that looks at embodied law that encounters disembodied cyborgs, at the erotic relations of the State to its traitorous citizens that are implied in the policing of pornography.
It is by now a well-known argument that though censorship is treated as prohibitive or repressive at the level of political action (we protest/petition against bans, argue for the pirated distribution of material, argue against the harassment of authors, artists, filmmakers, and against the kind of socio-political morality that condemns the viewing of certain kinds of images, texts); that though in the realm of political activism the distinction between the prohibited and the allowed is still a line that we engage with on its own terms, we must necessarily see censorship as productive, as speech act, as engendering cultural and political change, and discourse on that element that is censorable (be it obscenity or violence or promiscuity).
The paper would like to link this set of debates with another set of concepts that is often-used in the arena of sexuality politics, to a similarly structured argument – that in the domain of politics, though there is an effort to address the legitimacy and the public acceptability of certain kinds of bodies and practices, and this is done through the opposition posed between what is visible (visibility here gaining some synonymity with legitimacy) and what is invisible (this being a condition forced on a practice or a person and therefore synonymous with illegitimacy); though this effort to render visible is something that contemporary sexuality politics especially is inextricably tied to (to the production of acceptable and non-stereotypical films/texts on non-heterosexuality, to rendering acceptable and expected speech and action related to these ‘other’ practices, to the spread of information about safety, medical health, to undoing myths about these practices, whether their cause, their result, or their nature), we must necessarily interrogate the distinction between visible and invisible, for this is linked to the first argument – If one were to theorise visibility as a concept in relation to sexuality or obscenity, how does one understand the functioning and authority of the law in terms of what it produces as visible? If one were to move away from reading visibility and invisibility as static conditions (to be achieved or changed) and instead read them as symptoms of the ways in which the law functions in cohorts with/juxtaposed to other representational systems, one would arrive at a framework within which presence or absence would have to be read differently in the current context.
One thing that complicates this set of distinctions and existing commonsensical understandings of them, is the body – is the body most censored when it is there or when it is not there? Is the body most acceptable when it is visible or not invisible? Consequently, does the visible body necessarily always represent the legitimate or unproblematic body? This enables us to move one more step in asking – do censorship/prohibition, and visibility/invisibility always address themselves to a ‘real’ body? To take health as a metaphor (and this is not new), it is when there is a symptom, which is a visible and manifested sign of a latent or hidden illness, that we know that something is happening, that there is a process in place – when there is no symptom, we assume good health and no disturbance of the assumed equilibrium of forces within the body. Through an examination of the ways in which the body traverses the law or encounters or vice versa (through cases in the 90s, including the debates around these cases), the paper will try and address the above distinctions and build a framework within which to rethink them.
In Althusser’s essay “Ideology and Ideological State Apparatus” the subordination of the subject takes through language, as the effect of the authoritative voice that hails the individual. The moment of the “turn” to face power, to come before power , is the simultaneous moment of both subject formation, and subjection. This subjection is not just a subordination , but a putting into place and maintaining a subjectivity. That which is called into the realm of law is human, that which is not is abject- a radical erasure that are refused the possibility of cultural or legal articulation.
Where the woman enters the law she enters it as a “body” in particular ways. The raped, the widowed, the married and battered, the domesticated- tied to the libidinal economy of male desire/ familial/ national economy in some way – either as object of lust/violation, or impregnation, or maternity. The language of the law has no word for woman - she only ever exists in pain, in violation, in rape and in widowhood, battered wifehood, maternity and other sorts of violent or victimised or in case she chooses to transgress the limits of the social order as dangerous/diseased/irrational savage bodies. But despite law’s repressive power women do continue to say, “Yes” within the constraints of dominant moralities and outside of it. This figure of the virtuous virgin/docile daughter/dutiful wife/ideal mother is structured around the relationship that woman bears to man within the libidinal economy of the home and the domestic-the family and the nation To desire sex wantonly, to perform their sexiness in public/to sell it in the market/ to share it in their homes with other women/ to not share it despite being married to it. It is in the dissonances and frictions of this oppositional binary of feminine embodiment that law’s secret anxieties and desires of order/ disorder, licit/ illicit, inside/ outside, sacred/ profane, public/ private, tradition/modernity play out.
As a lawyer I constantly constructed stories of client’s "chastity", "motherhood" , “violation” and "destitution"1 to allow women to make a most unvictimlike claims- that of being entitled to rights against violence , rights in property , and rights against the family. My work thus dealt with difficult and recalcitrant victims – “bad” mothers, “adulterous” wives, or quite simply women who looked “too happy to be a battered wife”(as one judge put it) and their transformation from the wayward and the unruly, into the domestic and docile legally “viable” citizen subject who comes to claim her rights. This paper foregrounds one such court case - the litigation involving the ban on dance bars in Bombay. The myth of an inclusionary modern citizenship and an invented pure, non-sexual “tradition”2 are the implicit utopias that underpin the discursive trajectories that the Bargirls case took in the courtroom. The paper attempts to unravel these diverse and entangled trajectories.