Session #3: Saturday, 10 January, 9.30 - 11.15 (CSLG)
Panel coordinator(s): Alex Fischer, Law, SOAS (alexfischer@soas.ac.uk)
Chair/discussant: Justice Dr. S. Muralidhar, Delhi High Court (EditRegion34)
Panelists, paper titles, and abstracts
This paper focuses on India’s compensatory discrimination policies designed to redress social marginalization, political exclusion, and distributive injustice. We propose to study how discursive practices of law and judicial institutions are giving distinctive shape and substance to compensatory discrimination policies in light of rapid social, economic and political change; in particular, the 1980’s and 1990’s revealed the full magnitude of religious, regional and caste-based political mobilization as the electoral victories of the lower castes and the assertiveness of hitherto marginalized social groups pressed ahead with India’s “silent revolution” (Jaffrelot). India’s new ‘quota politics’ thus transformed democratic empowerment into legal entitlements, and extended preferential treatment policies on a massive scale as the implementation of the Mandal Report became the distinctive landmark of compensatory discrimination and set the judiciary on a collision course with the other branches of government. The paper analyses the judicial response to the systemic transformation of compensatory discrimination toward demand politics and the new policy imperatives of voter sovereignty, interest group pluralism and co-optation of discontent. In a fundamental sense, therefore, the affirmation, persistence and ever-proliferating expansion of compensatory discrimination are determined by the complexity of Indian law and the preferences of Indian judges that accompany political volition and executive fiat. It is for this reason that we propose focus on analysing and explaining the juridification and judicialisation of compensatory discrimination policies in post-Mandal India.
The now prolonging state of emergency in Bangladesh (since 11 January 2007) has put its judiciary under certain challenges, with a far-reaching bearing on judicial statesmanship. It has re-surfacing the old but difficult question of the proper role of the judge during Emergency. The present Emergency regime initiated an array of reform works in areas of politics, law and judiciary, but at the same time clipped the rights of the people as well as the protective role of the courts. In such a context, the proper role of the judiciary should be to make the ‘law’ “speak the same language” as it should speak in a democracy. However, as recent Bangladeshi judicial decisions show, while the High Court Division of the Supreme Court seems to be asserting self-confidence vis-à-vis the somewhat overweening government, the Appellate Division of the Supreme Court has been arguably paying undue deference to the executive. For example, the Appellate Division has controversially endorsed the retrospective operation of Emergency Rules concerning criminal offences. Basing on some recent cases, this article will examine the new politics of the senior judiciary in Bangladesh, with an aim to figure out the reasons behind this sort of judicial passivity. Starting off from the premise that law is a site of political contestation in a given society and that the judiciary is a political institution constantly shaping the law and politics, this article will examine whether the current judiciary in Bangladesh has been employing its statesmanship and craftsmanship. I will argue that the current judiciary is suffering from a severe crisis of public confidence which will negatively impact its constitutional agency and recently introduced judicial reforms. It is also argues that the Bangladeshi judiciary needs to be more justice-conscious and pro-active in upholding principles of justice and constitutionalism. While contextualizing the need for judicial activism during Emergency, the article will question the efficacy of dominant legal-constitutional theories about the judicial role.
The inclusion of disability as a subject matter of law and policy is a relatively recent development in India. The 1990s witnessed the enactment of certain key legislations which have addressed issues central to the lives of people with disabilities such as barrier-free access, integrated education, accommodation in employment, etc. Social justice and human rights paradigms, embedded in notions of equality and non-discrimination, have been ideologically marshalled to initiate positive policy changes. In addition to the Persons with Disability Act (PWD) 1995, which promises ‘protection of rights’, ‘equality of opportunity’ and ‘full participation’ to people with disabilities, other institutional arrangements of grievance redressal outside the formal juridical sphere have also been created to facilitate access to justice. These fora include the Office of the Chief Commissioner of Persons with Disabilities, the State Commissioners of Disabilities and the National Human Rights Commission. These legal and institutional arrangements are significant because they not only aim at speedy justice delivery at the individual level but also open up new avenues for the inclusion of persons with disabilities into the realm of mainstream policy and development.
In this paper, we undertake an in-depth analysis of the judgments delivered by the appellate courts (Delhi High Court and the Supreme Court of India) on matters related to disability between 1996 (notification of the Persons with Disabilities Act) and 2007. Delhi is chosen as a spatial site because a large number of cases involving disability have been filed here. Due to a variety of reasons, Delhi has emerged in some ways as the epicentre of the disability movement in India. Along with this, we consider the limited available material on the interventions by the Office of the Chief Commissioner of Disabilities and the National Human Rights Commission in order to place the different institutions in a comparative assessment. Indeed, in a number of cases there is contestation between these different agencies in individual judgements. Through this exercise, we not only hope to provide a profile of the violations faced by persons with disabilities and the nature of litigation coming under the laws related to disability but also, highlight the changing understandings of the notions of disability and personhood in society.
Disability is a multi-dimensional phenomena imbued with social and cultural notions of difference, defect, capability and productivity. Even in the legal-juridical arena, such notions underwrite concepts like rights, personhood and citizenship of persons with disabilities. Cultural stereotypes, the medical and social models of disability influence the trajectory of grievances that come up for redressal in the judiciary. Through our analysis of the judgments, we hope to show how the law and legal machinery seek to negotiate these at times overlapping and at times contesting notions of disability that emerge in concrete cases. Finally, we hope to address the question as to whether law is indeed an effective instrument for mobilising social change for persons with disabilities in society.
This paper proposes to examine the impact of Musharraf’s reign from 1999 to 2008 on Pakistan’s legal system. In particular, the paper aims to explore the role of the courts in legitimising, but also in challenging, Musharraf’s rule. Two themes invite particular attention. The first is concerned with the constitutional processes used to legitimise what are prima facie illegal acts of usurpation of power. With Pakistan’s constitutional history littered with coup d’etats and ‘constitutional deviations’, this paper will argue that there has emerged in its legal system a set of processes which have become recognised as the constitutionally acceptable manner to stage a coup d’etat, and also to end it. Particular attention will be paid to a frequently overlooked aspect of coup d’etats, namely the difficulty in ending them. As was aptly observed by a Pakistani Supreme Court judge in 1977 “The persons who want to stage a revolution or coups d’etat do not have any regard for the judgements or the Constitutional processes. They go forward despite these and rule if they succeed or are executed if they fail.” It will be argued that Musharraf’s lengthy and convoluted abdication was to a large extent informed by the necessity to insulate him from legal challenges, even arrest and trial for treason or offences committed during his presidency, following his loss of immunity after his resignation from official positions. The legal fictions created to invest his coup d’etat with a cloak of legality had to survive the coup itself, if the country was to be returned to a more democratic order. Popular unrest and an increasingly hostile legal community, however, had dramatically reduced Musharraf’s ability to negotiate an exit which would guarantee that the legal fiction of legitimacy of his rule would be a lasting one, capable of protecting him from law suits and arrest. Central to an investigation of this theme is the role of the judiciary. Only by controlling it completely can the legal fiction be created and also maintained. Once control was lost, Musharraf’s day were numbered. Thus, perhaps perversely, the Pakistan scenario suggests that the stronger the courts, the more tempting it becomes to reduce their independence.
The second theme concerns the fate of Pakistan’s Islamisation project, which once started in the late 1970s continued to dominate Pakistan’s legal discourse throughout the 1980s and 90s. This domination was to a large extent the result of judicial interventions, brought about by the power of the Federal Shariat Court to review laws on the basis of Islamic law. Musharraf’s coup d’etat in 1999 brought with it a radical change of this project, ushering in a period of judicial restraint and, as will be argued, secularisation. The primary movers behind the Islamisation project, namely the courts and the Council of Islamic Ideology, were not abolished but usurped in order to inculcate into Pakistan’s legal system a modernist vision of Islam. The paper will chart the development of this process, assess its impact on the legal system, and query its chances of survival post-Musharraf.
Whilst the paper will be firmly focussed on Pakistan, it will also attempt to draw out more general conclusions concerning the role of judiciaries in contemporary Islamic countries. The experience of Pakistan is of obvious relevance to the more recent attempts in building states and constitutional orders in Iraq and Afghanistan, whilst its experiments with legitimising constitutional breakdowns and emergencies are of interest to India and Pakistan, which share many of its legal traditions and cultures