Articles

Dance Bar Ban: Doing a Feminist Legal Ethnography

-Sameena Dalwai

This paper explores the methodological journey of undertaking a study of the legal ban on bar dancing in Mumbai and Maharashtra. A Legal Ethnography allows an understanding of the multiple layers involved in the creation of the dance bar ban and a feminist perspective focuses on those most affected by the law i.e. the bar dancers. Through interviews, group discussions and field observations, the study tries to comprehend the women who work in the dance bars and the world they weave for their customers. Yet the study moves beyond the bargirls towards the political actors to ask the question, why the ban? and dwells on not only the legislative process of passing a legislation to ban dancing but also the politics of banning erotic labour in Mumbai. This study coins new terms such as ‘Caste Capital’ to donate the cultural practices, knowledge and behaviour that allows some communities to excel in some modern occupations such as the women from traditional dancing communities within the dance bar industry and ‘Caste Governance’ to explain the actions of the government in curtailing the new found power, status and money of the bargirls.

 Changing Rights to Family Life: Biolegalities in the Globalization of Reproduction

This article focuses on Australian court practices that concern the legalization of parenthood for children born out of overseas surrogacy arrangements. Analysing arguments and decisions from federal and local cases, it demonstrates how a “human rights approach” promoted by judges that act in the “best interest of the child” destabilizes the enforcement of local Australian law regarding commercial surrogacy. Ultimately, the article examines how the law interacts with biotechnological changes and how legal justifications engage with biological and social knowledge that are creating a changing landscape of rights and ethics around surrogacy. Using the concept of “biolegality”, it conceptualizes rights as emerging at the intersection of law and biology in the context of global inequality and migration. It examines the question of which rights-claims are based on genetic truth, and which ones on legal truth. Contrary to conventional understandings that in the pursuit of justice “law lags behind technology,” the article demonstrates how legal knowledge interacts with the life sciences and technologies to build the concept of rights. Moreover, the interaction of information, facts and knowledges includes strong references to “adoption discourse” suggesting a reframing of surrogacy issues through the framework of legal adoption.

This paper explores the complex relationship between Indian feminism and the law and legal systems, as reflected in the recent (2015) Bombay High Court judgment on domestic violence. It is divided into two sections. The first section looks at feminist interventions in marital disputes and domestic violence through grassroots efforts, and outlines the multidimensional and hybrid feminist understandings of domestic violence, discusses change strategies and ethical principles that underpinned their action, and addresses the enactment of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) as one such strategy against domestic violence. This section also focuses on feminist dilemmas and foregrounds the issue of women’s autonomy in situations of domestic violence. The mainstreaming of feminist legal interventions through the PWDVA has brought new challenges for feminists and the second section discusses this issue by focusing on judicial intervention in deciding the boundary of counselling and mediation practices by protection officers under the PWDVA. We suggest that as seen in the 2015 judgement, while the judiciary has upheld some aspects of feminist practice and disallowed reconciliation in situations of serious physical domestic violence, its over-emphasis on equating physical violence with domestic violence and its protectionist stance has limited women’s autonomy and gone against feminist counselling principles and politics undergirding feminist interventions in situations of domestic violence. We suggest that this judgment can be read as a dialogue within a section of feminist groups in India who endorse feminist political ideals of liberty, individual rights, and equality and seek to institutionalize these within the law. This paper is an analytical and interpretive piece and not an empirical inquiry into legal practice or a survey of case law developments of the PWDVA. It focuses on normative questions of theoretical and policy relevance arising from feminist engagements with law.

The 262nd Law Commission of India (“commission”) report on death penalty has recommended the abolition of death penalty for all offences except those related to terrorism. Three members of the commission dissent from this majority view, taking a retentionist stand. The argument this essay makes is not whether or not terrorism ought to be the exception, but that within the commission’s framework of the argument for abolition, ‘terrorism’ appears as an arbitrary exception. The report carves this exception by the sleight of a hand, in shifting the register of its argument. That is, from making ‘Constitutionalism Arguments’ for abolition to suddenly slipping into a ‘Democracy Argument’ for the exception. It comfortably slips through the cracks of what Habermas calls the “paradoxical union of contradictory principles,” namely, constitutionalism and democracy. In closely reading the report, this essay explores two crucial strands of the arguments that the abolitionists and the retentionists deploy: (a) the implications of indeterminacy in judicial decision-making on death penalty cases; and (b) a legislative supremacy argument which suggests that it is ultimately the legislature representing the ‘will of the people’ that has to decide on the issue of abolition. Finally, in aiding the commission’s argument for abolition, I read the landmark Santosh Kumar Bariyar v. State of Maharashtra (2009), via Jacques Derrdia’s Force of Law, to unearth the indeterminacies in legal decision-making that strengthen the justifications for abolition of the capital punishment.

-Rajgopal Saikumar

Aadhar, touted by its supporters as the ultimate tech solution to India’s development problems, failed to bring the UPA back to power. Despite having trashed it from the Opposition benches, the BJP government is now rolling it out at an accelerated pace despite strong opposition from civil society groups and continuing concern about the technology and its social and ethical implications. This paper examines the official justifications for Aadhar from the perspective of those whose interests it claims to serve. 
 

Experience on the ground suggests that the real attraction of Aadhar for this government lies in its potential as a tool for the promotion of the interlinked agendas of neoliberal globalisation and militarised nationalism. Disguised as “development”, Aadhar is facilitating India’s transition into a society where critics and dissenters are seen as enemies rather than as essential actors in democracy.

Interview

-Oishik Sircar interviews Ratna Kapur and Brenda Cossman

Contents of Volume 12(1)

2016

-Gopika Solanki and Geetanjali Gangoli

-Sonja van Wichelen

-Archit Guha