Chair: Radhika Subramaniam, Independent Scholar

The papers in this panel interrogate the culture of law. They are interdisciplinary in their approach, addressing debates in the anthropology of violence, colonial and post-colonial history, and political theory. They seek to unravel the implications of looking to juridical discourse as a significant node in the constitution of communitarian, minoritarian, and gender identity in South Asia.

The constitution of Muslims and untouchables as minorities as well as protectionist legal provisions for women raises historical and political questions: what are the processes whereby minorities constituted themselves as entitled to state protection; how do state discourses consistently betray the demands for full citizenship by minorities constituted as both within yet without national formations; what are the implications of the gendering of law and its practice on notions of universal citizenship? These papers assert the significance of the juridical apparatus yet expose its limits, interrogating law’s symbolic power and the fragility of its commitments to social justice.

Minority identity depends on discourses of the body and its violation, on the centrality of affective states of trauma and injury in marking zones of political vulnerability. Yet, as this panel illustrates, law is meant to translate a language of pain into categories such as "civic disability," "protection," or "historic discrimination" before it can compensate minorities for their exclusion from full political personhood. In the context of post-Partition India, Pakistan, and Bangladesh, the status of religious, socially and ritually stigmatized Others is an important site for recovering the history of secularism. In focusing on law as a performative—constantly underdetermined in its practice yet over-determined in its articulations—these papers point to the gap between law and justice that animates the contradictions of secular democracies today.

Dina Siddiqi, Bryn Mawr College

This paper examines legal discourses on female identity by drawing on recent debates on judicial custody and Section 54 of the Criminal Procedure Code in Bangladesh. Originally enacted in British India to limit "vagrancy," Section 54 allows the police to apprehend any person exhibiting "suspicious" behavior. In independent Bangladesh, poor women have become the primary targets of this law. Moreover, judges routinely assign women victims of violence as well as those picked up under Section 54 into the custody of the police for the duration of any investigation, on the grounds that they require protection. The legal basis for such custody is solely at the discretionary power of the judge. High profile custodial deaths have come to be a source of acute moral embarrassment for the newly democratized state. Nevertheless, most judges continue to accept police applications for custody.

This paper considers the consequences of "protection" by focusing on the case of a young factory worker’s rape and death in custody in 1997. Through a close examination of the judicial inquiry report following the death, it charts the conditions and limits of entitlement to state protection for women as female citizens, as well as the complicities between judiciary and police in re-inscribing ideologies of protection.

Tayyab Mahmud, Cleveland State College

This paper will examine the practice of the superior judiciary of Pakistan as it relates to the freedom of religion and religious minorities. Over the last fifty years, this practice has gone through three distinct phases in tune with changes in the broader political and cultural contexts. The first phase was remarkable for its unequivocal protection of freedom of religion and religious minorities. The second phase witnessed a contraction of this protection through undue deference to the formal textually prescribed constitutional amendment process. The last, and current phase is one in which the judiciary has capitulated before the ascendant forces of religious reaction and completely abdicated judicial protection of religious minorities. This paper will examine the nature and determinants of this judicial practice in all three phases. The paper aims to locate this judicial practice in the broader context of structural distortions of this particular postcolonial social formation. Judicial discourse in Pakistan will be explored as an attempt to negotiate between overdeveloped state apparatuses and a fledgling civil society. Placing judicial pronouncements at the intersection of law, culture, and politics, the paper will trace how religious minorities were constituted as the "Other," prompted by desires and anxieties of the postcolonial state, and enabled by the ensemble of conflicting vocabularies and discourses available for appropriation in the culture at large.

Radhika Subramaniam, Independent Scholar

This paper examines the constellation of legal inquiry, testimony, and the assigning of responsibility in the aftermath of violence and focuses particularly on its implication for healing. A Judicial Commission of Inquiry, appointed immediately after the violence to investigate the Bombay Riots of 1992–1993, submitted its report in 1998. Called the Srikrishna Commission after the presiding judge, its mandate, although undoubtedly to determine responsibility, was actually in large part concerned with the evaluation of the law and order apparatus—whether police firing was justified, riot control measures adequate—and the recommendation both of reforms in police functioning and of punitive action against specific policemen. Other non-officially constituted but no less legally bound commissions such as the Human Rights Commission Report presided over by judges had previously published reports clearly assigning culpability. Embedded in all these reports is the requirement to provide a narrative of the events culled from hours of testimony. This paper aims to examine these narrative constructions and to understand the practice of witnessing as a political performative. The questions that animate this paper are: What is the relationship of the official record to previously available popular information and opinion? How does the seeming narrative closure established by the judicial process take into account the trajectories of healing? What are the limits of the language of prevention and control to the understanding of traumatic violence and recovery?

Anupama Rao, New York University

This paper seeks to locate conversations about the abolition of untouchability in post-Independence India, both historically and regionally. It focuses on the means whereby the practice of untouchability came to constitute both a problem of governance and a moral embarrassment for the Indian state.

The Indian Constitution’s abolition of untouchability under Article 17 was complemented by the elaboration of a series of laws (beginning in 1955) that sought to criminalize the practice of untouchability. This paper argues that shifts in the legislation concerning untouchability involved a revaluation of the untouchable body, its resignification as a hurt or injured body that came within the ambit of the state’s protection. How were these discourses of protection constituted? How effective were the processes of secularization that constituted untouchability as a civic disability; does the religio-ritual status of untouchability continue to haunt governmental discourses?