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Law, Legality and Power: A Reader

Alternative Law Forum Reader, 2004

ALF is a group of legal practitioners and researchers with diverse interests who have been critically engaging with a range of socio legal issues. What ties us together despite our wide range of interests is a commitment to intervene in spaces for greater democratic possibilities. We also firmly believe that the greatest strength for us as a group has been the ability to pull together diverse interests and strengths. This is often more difficult to do than it initially seems, and the ability to engage with each others work is something that we have had to carefully cultivate. We have in the past been asked to identify our core work, and there is clearly no straight forward answer to this question. It can be answered in a convenient administrative manner, for instance as the provision of legal services or research etc but that would only a partial picture. The point, we have realized is not the identification of a single stream of what ALF does but really coming together of these multiple streams. In some quarters for instance ALF is known primarily as the group that provides legal services, while in others it is known as the group that runs alternative dispute resolution cells, and in others, for the research and academic work that we do. The answer though touches upon a core belief of ALF, in that though the engagements may operate in various realms, the common thread is that of law, legality and power. The idea of such a reader can be seen as an evolution of representing our work within such a concept. We perceive ourselves simultaneously as a space that provides qualitative legal services to marginalized groups, as an autonomous research institution with a strong interdisciplinary approach working with practitioners from other fields, as a public legal resource using conventional and unconventional forms of creating access to information, as a centre for generating quality resources that will make interventions in legal education and training, and as finally a platform to enable collaborative and creative models of knowledge production. Just a small caveat, this Reader only contains a sampling of some of our work. This task of preparing the Reader is rather tough since it must be acknowledged that the Reader in its present form does have limited representational characteristics in terms of the cross-

section of work we do and issues we engage with. Simply put, not all our engagements / interventions find representation in the print form for various reasons. The Reader has been compiled into the following sections: I. The Court as a Theatre of Struggle Since ALF is active in the various Courts it is needless to say that there is a range of experience, learnings, frustration and at points pure rage that is had from these engagements. The first section contains articles that try to capture these and are about engagements with the law as mediated through the Courts. The Court as a Theatre Of Struggle is an analysis into the daily workings of the Courts and provides an account of the maze that the Court is. It also tries to conceptualise ALFs work in the Courts while providing insights into courtroom and outside strategies. bolti band! examines the form of judiciary and its inaccessibility or rather the shutting out of people from accessing it. 11th May is a detailed account of the efforts to get Sayad Sadik Ali, a 17 year old boy falsely implicated in some cases, out of jail. II. Cities: Legal and Otherwise The next section contains articles that revolve around the city and urban planning and the manner in which people are marginalised and, further, how this marginalia create spaces for themselves. Of Master Plans, Laws and Illegalities an Era of Transition is an extract of the report that we prepared towards the revision of Bangalores Comprehensive Development Plan and provides a critique of modernist planning. Decentralization Illusions is an article that was born out of our interactions with a local Panchayat on the outskirts of Bangalore, in which the government is acquiring agricultural lands for establishing an IT Corridor. This provides an account of the violations of the participation rights of this Panchayat as provided by the 73rd and 74th Constitutional Amendments in developmental projects. Silicon Myths is an article written with the State election results as the background and tries to critique the city-centric vision of the previous Government. Porous Legalities and Avenues of Participation is an attempt at locating some of the contemporary conflicts around intangible properties such as media commodities within a larger historical understanding of legality III. Bodies of the Law The next section is one that focuses on sexuality and an attempt is made to highlight the limitations of law in the context of sodomy law reform in India in an effort to locate law

reform as a part of a process of social and political change in There are no short cuts to queer utopia: Sodomy, law and social change. Meetings across the Rainbow a news report is a report on the The 2nd International Conference on Sexualities, Masculinities and Cultures in S. Asia, held in Bangalore from 9-12 June. IV. Sacred Sites The growing communalism in India is a matter of grave concern and ALF has been part of several initiatives that seek to check this. The Bababudangiri Dispute provides a soc-legal analysis of the disputes that have emerged in the past years regarding Bababudangiri, which is one of the most important sufi shrines in Karnataka. A Fact finding visit to Chickabettahalli on October 3, 2004 is the report of the fact finding team consisting of students and activists from various organisations to look into the causes of the communal violence around Chickbettahalli a village north of Yehalanka near Bangalore recently. Religious freedom, secularism and - some problems and Pluralism working questions are brief research notes from ongoing research on law and communalism. V. Contested Cultures/ Contested Knowledge One of our interests has been the intersection of law with cultural practises and practises of knowledge production. Cinematic Citizenship and the Illegal City attempts to redefine the idea of law and cinema, moving away form the usual textual analysis and linking it to spatial histories, histories of carriage forms as well as conflicts around media as property. Films for Freedom narrates the experience of organizing Vikalp (The festival against censorship) in Bangalore which saw disruptions by the VHP, action by the censor board and the police. Shoot, share and create: Looking beyond copyright makes sense in film is a short argument about why documentary film makers should consider moving into a copyleft model of production and distribution. Truly yours but exclusively mine: Bio-rush in the patent era, examines the politics of converting bio medical knowledge into private property and 'IPR and Media: Emerging Paradigms' summarises the proceedings of a workshop which attempted to map the various debates that exist in the world of IP at the moment. -----------------------------------------------------------------------------

Alternative Law Forum

21.11.2004 4

1. The Court as a Theatre Of Struggle...............................................................7 2. bolti band! ...................................................................................................25 3. 11th May ..........................................................................................................36 4. Of Master Plans, Laws and Illegalities an Era of Transition ....................40 5. Decentralization Illusions ..............................................................................57 6. Silicon Myths ..................................................................................................72 7. Porous Legalities and Avenues of Participation .........................................82 8. There are no short cuts to queer utopia: Sodomy, law and social change 97 9. Meetings across the Rainbow......................................................................106 10. The Bababudangiri Dispute ........................................................................111 11. A Fact finding visit to Chickabettahalli on October 3, 2004 ....................123 12. Religious freedom, secularism and - some problems ...........................126 13. Pluralism working questions....................................................................128 14. Cinematic Citizenship and the Illegal City ................................................130 15. Films for Freedom........................................................................................157 16. Shoot, share and create: Looking beyond copyright makes sense in film ........................................................................................................................170 17. Truly yours but exclusively mine: Bio-rush in the patent era .................177 18. IPR and Media: Emerging Paradigms.......................................................191

The Court as a Theatre Of Struggle

- arvind narrain The power and majesty of the law manifests itself in its most concentrated form in the Court. Everything about the Court right from the robed judges to the black coated lawyers is about conveying authority, authority which is meant to intimidate, coerce and finally to silence. In the presence of the law, even the most vocal are rendered silent. In such a context one can well imagine the plight of those who not only are rendered silent by the mystical authority of the court, but are also not able to afford legal representation. The court room gives a false sense of formality with behaviour constrained within well established procedures. The lawyers in their black coats would speak a language which was quite incomprehensible to the people they were representing. The clients would hang on every word that is exchanged between the judge and their lawyer. Some of them are genuinely submissive and afraid of the court while others pretentiously bow their heads, faking submission and respect for the court. Clients are completely at sea as to what exactly is happening in the court as the judge bends over and scribbles furiously on the files. The moment of clarity is arrived only when the judge flings their file to the bench clerk- then they would know it is over for the day. This over dramatic sequence of events ensures that the courts are not the space where the voices of those at the bottom of the socio-economic strata are usually heard. It remains a forum where the sex worker or the slum dweller in seen but not heard. He or she is, often brought in after a night in custody, after some by now routine harassment by the police and his or her fate is decided by whether there is a competent lawyer to represent him or her. Even if there is a lawyer to represent him or her, if the bail requires sureties which the person is not able to furnish, then the person is doomed to a long period of detention in the other horrific institution in modern India the prison. The venality of the court is a hoary Indian tradition. If you are practicing in any court in India, you will be told the price of different things right from getting hold of certified copies, to getting your case posted on the next date to amounts which one

might need to pay to Public Prosecutors. The feeling of sleaze and dirt around the court is so palpable that not many would choose to venture in these territories in the quest of justice without simultaneously having the ability and the willingness to grease the wheels of justice. It is precisely this arena that we decided to intervene is as practicing advocates. If we wanted to in any sense make a difference to marginalized communities, intervening in the court processes would have to be a significant part of our work. Our litigation work started with the arrest of Farida (Accused Cr. No. 58/2002) on charges of soliciting and moved on to encompass a range of cases involving child labour children accused of committing offences , women who were victims of domestic violence and women wanting to get out of unhappy marriages. Throughout this period the number of sex workers wanting to contest only increased with Mary, Shoba, Ratna, Jayamma and several other women deciding that they too had enough of arbitrary police harassments and deciding that they too wanted to contest. What was apparent, particularly in the case of women arrested on charges of soliciting is that they moved from a position of being objects of the law to slowly articulating their conviction that they had done no wrong, in response to the judge asking them to enter their plea. The sense of sex workers being treated as cattle within the court does enormous violence to the constitutional philosophy underlying Art 14 namely the idea of equality. There is no equality before the law. Even in the ranks of the oppressed, comprising murderers, thieves, drug dealers, the lowest of the low positions is occupied by sex workers. Right from when they are produced in court (at the end of the day after all proceedings are finished) to the way they are treated in the court reaffirms their marginal and stigmatized role in society. In fact the cattle metaphor is applicable from the very moment of arrest. Nothing exemplified this better than, the incident when over twenty women who were all arrested on charges of soliciting were produced in court. All looking enormously weary, after a night in custody they were in court waiting their turn before the Magistrate. Just as they appear before the Magistrate, before the court closes in the evening, they are ordered to cover their heads and look down. The judge murmurs 8

something which the women cannot comprehend. It seems like it is below the dignity of the judge to look at them straight and speak to them. The bench clerk then asks the women collectively do you all plead guilty. And all the women unanimously say yes. Their only concern is to get out of the court and join their children who have no clue as to where their mothers have disappeared for the night. Every body right from the sex workers to the police the bench clerks, the pending branch and the judge are in a hurry to finish the matter and retire for the day. However Ratna had other ideas. In the cacophony of voices all saying Forgive us, we have done wrong We admit we did wrong , there was one voice struggling to get heard in asserting her basic right to assert that she had not committed any offence. Everybody right from the police to the women who were arrested with her was annoyed that she wanted to contest her arrest. She was under tremendous pressure and to stand up to the pressure was indeed remarkable. She wanted to make a statement before the Magistrate on violence inflicted on her by the police and we managed to record her statement in the cacophony of voices. To provide the black comedy, suddenly the judge noted that he might have to remand all the women back to judicial custody as the typist had left and there was no one to type the release order. Once again the cacophony of voice moaning about children and old parents and how it was impossible to be in jail for another day arose. Of course our client Ratna was seen to be the cause of the problem as in that Babel of voices in different languages the other women thought that it was her decision to contest that , would result in the rest of them spending another night in jail. However, somehow another typewriter was procured, the women were released and Ratna volunteered to go back to the jail so that she could be sent for medical examination. Ratna was clear that regardless of the inconvenience of another night in the jail, she wanted the police who had beaten and stripped her to be held responsible. Ratna asserted her dignity that day and her need for justice. The above in some sense communicates the atmosphere of the court. So then how does one intervene in the system of the court? We tried looking at our experience and trying to understand what does it mean to do alternative law in the court rooms? We came up with the following broad understandings:

1) Using the power of the law Even while we have used the phrase alternative lawyering it remains clear that our practice did not disavow the power of the law. What we sought to do was demystify the power of the law for our clients while at the same time we were clear that we were using the power of the law on behalf of our clients. We did go to courts wearing the uniform which gave us power i.e. the black coats. The coats were what in some sense immunized our clients from harassment in the courts. The coats were what opened doors in the court and enabled you to access basic information. The coats were what were responsible for the police man even letting you know under what provision your client was arrested. The fetishistic powers which resided in the black coat were what we were trying to channelize towards empowering the marginalized. It worked to the extent that you were part of the process of trying to fulfill a constitutional promise- everybody has the right to legal representation. What was clear is that some sections of the Indian population were (non) citizens when it came to accessing basic rights. Our work in its own miniscule way was really about filling this gap between what was laid down and what was actually there. Of course being conscious of the nature of Indias problems one is fully aware that we will never fill this gap through our limited practice. The solution has to lie in a braver re-imagination of possibilities, so that the broad ideal of justice can encompass a wider range of the dispossessed people of India. Thus even while we use the power of the law one needs to be conscious of the way the power works on your client and on yourself bringing about subtle changes in behavior and personality. The fetishistic powers which reside in the Black Coat in particular, can have an impact on clients, silencing and intimidating them. We have been very conscious of this power and have tried to demystify and minimize it. Of course where there is power, money cannot be far behind and one should not have the impression that the power of law is necessarily linked to the ideal of justice. In its day to day workings out in the lives of the poor, the Black Coat signifies a group of people who will use their influence to extort money and other favours from the poor. In the traditional practice of law the less the client knows the more the lawyer earns. 10

Even though the filing of bail applications in bailable cases is very standard and the formats are available in the court premises for Rs. 5/- the lawyers may charge anywhere between Rs. 1,000/- to Rs.10,000/- depending on the reputation of the lawyer and what the client can afford. This is a regular feature in the court when desperate arrested persons are produced before the magistrate. Not only does the advocate solicit clients in the corridors but sometimes he takes an advance promising to get them released on bail. When they are produced before the court they find themselves without a lawyer. The lawyer who was supposed to bail them out disappears with the money. The poor are then remanded into judicial custody. To take another common example, lawyers mystify and make profitable the very process of filing an exemption application on behalf of clients who are unable to appear. While it is the discretion of the Magistrate to accept or not accept the application, the practice in the courts is that exemption is in the nature of a standard form application which is invariably accepted without question. Lawyers often make it seem that exemptions are extremely difficult to procure and use the power of the law to extort as much as possible form the client. We tried to demystify simple court processes like filing exemptions and are in the process of encouraging our clients to file their own bail applications as well. By helping them to understand simple things like case number, the next date of hearing, the client is empowered to handle her own case to the best of her ability. Further the power of the law inherently resides in the distance between the client and the lawyer. The distance is maintained by ensuring that even if you are going to the same court, the lawyer comes by his or her car and the client takes an auto. There is no question of sharing food with the client. When it comes to sex workers the distance is amplified by several degrees. Lawyers never see the sex worker beyond the limited time of the hearing in court. We sensed this distance of which we were a part of and tried to respond to the dynamic of being a lawyer and hence automatically being a part of the social process which creates the distance.


Ratna, Farida and the others always saw us as both lawyers and ordinary people with both identities playing off each other. In the meetings for sex workers which were initiated by the women themselves we played a secondary role compared to the role we played in the courts. Further, whenever we were invited for tea or lunch after the court hearings, we always went firstly because we were tired and wanted the tea and also because it was an important act of affirmation that there was a social solidarity which went beyond the lawyer client relationship. This act of social solidarity also conveys a strong message to the police that even the sex workers, hijras (transgender), juveniles from the slums or Muslims have some form of access to justice. Using the power of the law has remained an inherently contradictory enterprise with the law having the capacity to function as a bulwark against oppression as well as being the very source of the oppression. 2) Changing the culture of the court The courts are spaces for public performances. It has been identified as an arena which in many ways mirrors the existing societal prejudices, in some ways amplifies prejudice and yet in other ways constructs prejudices of its own. But the courts are also spaces where there is a contestatory politics which plays out. This is because while there is power, the power is not absolute and allows for some amount of critique and hence changes in the very culture of the courts. It has been our limited experience that changing the culture of the courts requires a sustained effort by a team of lawyers who are constantly present in the courts, making interventions and through their efforts bringing about a change in the court room culture. One of the descriptions which come to mind is that of the work of the feminist lawyer, Flavia Agnes. She notes in an interview that through her work in the family courts in Mumbai with a team of committed women lawyers, there has been a remarkable shift in the gender sensitivity of the judges in Mumbai.1 Similarly the veteran civil liberties lawyer Mr K. G. Kananbiran in a conference organized by the Alternative Law Forum noted the need for a practice of law which he called insurgent

Tarunabh Khaitan, From Activist to Alternative Lawyering in India, on file with ALF


jurisprudence.2 By this we gathered he meant that the courts are spaces in which it is possible and in fact necessary to question dominant values. Maybe one of the predominant values which we were successful in questioning was the ubiquitous nature of the bribe which had to be paid to every lower court functionary. The first instruction we got from a senior lawyer is that if we wanted to learn the ropes of litigation then we better be part of the system. Being part of the system primarily meant that we had to learn to bribe people. Even as he instructed and his junior whole heartedly agreeing with the look that you have to grow up and face the realities of the court life if one aspired to be a good lawyer. These lawyers were proud that they were experts in the art of bribing. There is a certain maleness associated with the very act of bribing. Although we heard this from many lawyers, we did not start with the premise that we had to bribe everybody to get our work done. If we did not pay then the clerks would ask money for coffee which meant a bribe. Initially we had some difficulties as they would make us wait or be extremely rude. Some of the clerks and lawyers could not understand as to why we would waste our education and legal knowledge on such petty cases. They would in fact suggest that we take up other cases like murder which is more lucrative than petty cases of police violence. We never started with the presumption that it was necessary to pay money to get our work done. When we represented sex workers in the courts, that very act of representation seemed to have appealed to a core of idealism in most of the court staff. While reactions ranged form yes there are poor women someone needs to help them to they are criminals you should not be helping them, a larger majority of the court staff including the judges were empathetic to the work we were doing. Gradually they understood the kind of work we did and with the informal discussions about the kind of constituency we represented and the subsidised legal fees we charged our clients. In most of the court halls where we regularly practice the pending clerks are familiar with work and almost never ask for a bribe.

Conference Report: Alternative Lawyering in India, http://elj.warwick.ac.uk/global/issue/20012/alf.html


One of the judges in fact commended the very fact of representing sex workers and asked us to work at the policy level to change the law. He further noted that in his day he too was a part of the social revolution. While one cannot claim that this is a significant change, it points to possibilities of bringing about a more overwhelming change in court culture of everyday bribes if we do indeed have a significant number of people practicing in the same courts. The other issue which had troubled us is whether it is indeed possible to bring about a shift in the way we present cases. Representing the marginalized meant that we use a language in which we were not very comfortable with. Indeed, in a legal argument, facts
can be emphasized or omitted, made to appear relevant when they are not, and skewed to make one point or another. The goals are the same--to tell a story by using words as tools to produce a desired reaction.

For example, when we present the cases of women who are arrested on grounds of soliciting very often, the image of the woman is as a victim. She is presented as a poor woman with three kids who would be subject to enormous hardship if she was not released on bail. The question is whether it is indeed possible to change the way we present the image of the woman, moving beyond the rhetoric of victimization. While what we submit as applications are often not read, what we say gets heard. So changing the very perception of the woman has to be a public court process. In some ways that perception has changed largely due to the very self presentation of the women. They have moved from being victims who look down and mumble saying that yes we have done wrong to vociferously articulating that they have done no wrong. The image of Laxmi who was falsely arrested by the police standing up in court with her arms folded and asserting with great dignity that she had done no wrong , will always remain permanently stamped on our memory as an assertion of an identity which moved beyond the rhetoric of the victim. We have used the narrative of the sex worker to tell the story of HIV/AIDs. Due to the National Aids Control Society (NACO) definition, sex workers are seen as high risk group and interventions with the sex worker community are a priority for HIV/AIDs interventions. However the contradictory nature of the Indian state is such


that , while there is a policy supporting such intervention, the constant violence against and arrest of sex workers renders difficult the very possibility of such intervention. We have sought to constantly make the point that many of those arrested were HIV/AIDs workers and by arresting them the police were hampering the very work of HIV /AIDs prevention. The women were in fact doing a service to society and they should be allowed to continue working unimpeded. The Court should in fact be used as a space where significant social issues such as HIV/AIDs are discussed and the court process should be used to further such education. Strangely the very perception of sex workers and those considered even lower in the social hierarchy, i.e. the hijra community changes based on the fact that they have access to legal representation. The fact that there is a group of advocates willing to intervene on their behalf means that the court system has to be sensitive to the fact that, that the routine violation of their rights and dignity will become matters of justice. There will be interventions to safeguard their rights and hence one the justice delivery system cannot be complicit in the routine violation of their rights. This very recognition brings about a change in the very the court system can afford to treat them. 3) Subsidized legal services To state that the law is an unequal institution is perhaps to state the obvious. The more critical question is whether it is very possible to right the balance so that those at the bottom too have a broader access to justice. The role that money plays in ensuring that the poor, never have access to justice is critical. To just take one example, in our interventions with the sex worker community, we have never charged conventional lawyers fees, instead leaving it to client to pay what they are willing and able to. IF we had charged conventional lawyers fees the legal component of the sex worker initiative would have been impossible. To just estimate the minimum legal fees for the over seventeen women we represented would have been in the range of Rs. 51,000/- at a conservative estimate. The group which has just started a bank account has a grand total of Rs 2000. Justice would have just been priced out of reach of the entire community if the group had sought to access justice through a conventional lawyer. 15

The fact that one can provide competent legal services at highly subsidized rates means that even the poor can have a shot at justice. Sometimes one feels that in critiques of the role of law, one should never erase the importance of an intervention which might not even do much beyond just ensuring that the inequality of money is minimized in accessing justice. 4) Performance as politics Perhaps nothing the courts as political theatre as much as the cross-examination. The cross examination can excite fears and anxieties among all the participants including the police, lawyers and victims. It is a mode of exercise of power and a way in which the powerful can be made accountable for their deeds and misdeeds. It can also function in a way which can completely disempower the already brutalized by further exposing them to the gaze of a prurient public. In our work we witness both these contradictory possibilities of the cross examination. To take up the first instance, the very fact of sex workers contesting cases means that at some point in time (the time getting prolonged by constant police inaction) the police have to present themselves in the witness box. The techniques and stratagems adopted by the police to avoid this possibility are many. Invariably every date of hearing, when the police witnesses are supposed to present themselves, they would be absent. In some cases where the Magistrate happened to be conscious of the need to bring the case to a closure, the magistrate may issue a non bailable arrest warrant. If in one case involving Mary for example, though the Constables and the Women Police Constable presented themselves in court and underwent the cross examination, the Inspector refused to come for the cross examination. The logic being that as an Inspector it was completely beneath his dignity to be cross examined in the case of a sex worker who was soliciting. However the Inspector in the case of Farida, after the Court exercised its authority over him and issued a non bailable warrant finally attended. Since we were able to expose the Inspectors story as being false and show that he had not been at the scene of the crime, it did send a signal to the police that women could not be dealt with in a totally highhanded and arbitrary fashion. The inspector who had gained notoriety for 16

giving electric shocks, throwing chilli powder in the vagina of a woman and beating sex workers with the police baton was examined in the witness stand. It was very emotional for the sex workers who saw it as some fort of vindication that the inspector was being questioned in the open court. The impact of these cross examinations is that the sex workers see this as a forum where the police have to justify their actions and in most cases they fail to do so. This further inspires the women to contest arbitrary arrests. Further the very fact of the Inspector being in the witness box and being cross examined in front of Farida sent out a powerful message to her that their was some sort of public pressure (albeit in the limited context of the court room) which the Inspector had to face for his actions and that he was accountable for his actions. However this publicness of the Court room can function in precisely opposite direction as well by further victimizing the already brutalized. During the cross examination of a woman complainant in a case of outraging the modesty of a woman (section 354 IPC) the courtroom was spilling out of its space with male lawyers. The woman testifying was a smart English professor. She was repeatedly harassed by a male colleague (the Accused). She had complained several times to the management but to no avail as the accused had a lot of support in the college. After one such altercation the Accused followed her and in a busy market area pulled her saree and verbally abused her. She registered a police complaint and a criminal case was registered. After three years the case was posted for cross examination of the complainant. In preparation for hearing some salacious details all the male colleagues of the lecturer had come to observe the women being forced to reveal all the details of the incident. Word had spread through the court room that this matter was coming up and the hall was filled with lawyer, curious onlookers as well as the men who were her former colleagues. The atmosphere in which the cross examination was to be conducted was thus extremely hostile to the woman. In fact the presence of so many male lawyers we later learnt was a defence tactic to embarrass and intimidate the English Professor. Every question the defence lawyer asked his accomplices would snigger at the complainant. The woman was forced to reveal intimate details of how 17

he had stopped her in the middle of the road, tried to strip her and abused her in the filthiest language. When she asked he judge whether she should say everything the accused had said, the judge responded by saying that if she wanted to see justice done she should. She responded by saying in choking soft terms, He called me a whore your Honour. The Honour in question, who was not familiar with the word whore said ore what ore? To which the Public Prosecutor responded by saying she means prostitute your Honour. This point the said Honour duly recorded. Of course this entire exchange was accompanied by more audible whispers, sniggers and jeering looks. It was free entertainment for the all gathered in the court hall. This incident which we witnessed was so shameful in the way the public culture functions to reinforce the notion of women as sexual objects who could be degraded anytime by the male gaze. Our sense was that there was a strong need for a more political approach, which was conscious of the power dynamic inherent in the maleness of the court room and consciously tried to reverse it. What clearly needed to be done was to connect the woman with some feminist groups and ensure that at least the atmosphere of the Courts was changed with a strong group of women attending the court hearing and challenging the very maleness of the space and making it more strongly empathetic to the case of women victims of patriarchal attitudes. 5) Legal strategies Of course everything we have said till now forms a part of a legal strategy. But what we have felt very strongly is that legal strategies should be a part of a wider sociopolitical strategy. Sometimes litigation might be the solution, yet at other times litigation might need to be supplemented by a non court process. Sometimes before even starting the process of client counseling, one might need to be more clued into the very context of the client. To take an example, what we have realized about domestic violence cases, is that women go through phrases. At points they are very keen on filing a case of divorce against the husband, in a couple of months, they decide that they dont want a divorce 18

but want to get back to the man. A few months later violence is inflicted again and the woman wants a divorce. This context of the impact of domestic violence needs to be understood before any strategy can be planned. In cases of clients who have been battered we first send them for counseling so that they are strong enough emotionally to sustain through the litigation process. The fact that women will express different opinions at different points in time needs to be taken into account in planning strategy. In fact studies of domestic violence have referred to what they call honeymoon period to refer to the complete inability of women to leave the men who are beating and abusing them. So even if a woman who initiates a divorce case wants to withdraw it, it makes good legal strategy to not immediately comply, as the situation in a few months could be totally different. Further in complex situations such as this one might need to go beyond the role of the lawyer, to even playing the role of a counselor. This could mean referring a particular client to a counselor, a shelter or giving them contacts of support groups before we file a case. Perhaps the key example which we have worked with is how to take forward the issue of sex workers struggle against police violence in a manner in which the community better learns to question violence and hold the police accountable. We have learnt that it makes sense particularly in the context of a community to initiate a community based process as well. In a spontaneous sense because the women felt the need they started meeting every week to discuss strategies in the context of violence. This process of weekly meetings gave them a sense of courage that there was a group of women behind them who shared their feelings of outrage and humiliation with respect to police conduct and also encouraged them to contest cases as they had legal support. If there was any reason at all that women were willing to contest cases, it had to flow out of the regular meeting process where they were able to interact both with other women who had already contested cases. Thus what was important was to supplement the legal process as a mode of ensuring that women could feel that they could hold the police accountable. The strength of this approach becomes apparent when we see the fact that, in the past in Bangalore 19

there were never women who contested cases. This was because of there was no social process as well as because there was no legal process. Unless both were there it was impossible for a legal intervention to succeed by itself. The notion of legal strategies has to be based on a clear understanding of the intricate way in which the legal system works. Understanding the interface between the civil process and criminal process is crucial in any attempt to secure justice. For example, in a civil case involving Muniratnamma, a child labourer working in the silk industry in Magadi. She suffered burn injuries in the course of her employment in the silk unit. The employer who is member of the powerful silk employers association denied that he had ever employed her. Fearing legal consequences of the accident the powerful silk lobby tried to hush the entire incident by cheating Muniratnammas illiterate mother into signing an agreement that the accident did not take place in the silk unit. Proving her employment which was one of the requirements for the compensation was difficult as he was employing them without giving them any written acknowledgement of payment. Further, the doctor who was certifying the burn injuries was bribed by the employer. The entire case was prolonged for over three years as the doctor and the employer were stalling the entire court proceedings. When we approached him he was very annoyed with us and told us it is not as if somebody is murdered that you take this matter up so seriously, it is after all a child labourer.(triviality of the matter) We then contacted the labour commissioner who them put immense pressure on the health department which brought the doctor to the court.(making the sys work) Further, upon inquiry it transpired that there was a criminal case which was filed against the employer and further investigation at the court revealed that the employer had actually pleaded guilty to criminal negligence in the wiring of his factory and being responsible for her burns. Thus, the criminal records were submitted as evidence in the civil case which was enough to prove that Muniratnamma was burnt in the course of employment. Legal strategies also have to be contextualized to suit the case of the individual client. Sometimes there could be a conflict between the need to hold the state accountable and the need to ensure the best for the individual client. For example in the case of the arrest of a Nepali watchman at 5 am in the morning, and the illegal detention for three days, it was imperative that to ensure police accountability we needed to file a case of 20

habeas corpus to ensure that the case of illegal detention came to light. However if in response the police filed a false case of theft against the Bahadhur Gurka, then he was stuck, only because getting out on bail would mean that he would be required to produce sureties. Considering that his family was from Nepal he would not be in any position to produce sureties and hence invariably condemned to a long period of detention. So in this case, we just kept the pressure on the police and ensured that he was not ill treated by constantly calling the police and going to the police station. However we ended up condoning the illegal detention for two days, only because it was a better alternative than a possible long spell in jail. Sharadamma was a devastated mother when she walked into our office. Her seventeen year old daughter Sheila was kidnapped by twenty seven year old Ravi. She was inconsolable and desperate to get her daughter back. She was afraid that Ravi would sexually abuse her minor daughter. The jurisdictional police had registered a criminal complaint but were not pursuing the case. Sharadamma promised to pay any amount we wanted as long as we could get her daughter back. There was enormous pressure on us to file a habeas corpus immediately. While drafting the petition the more we inquired into the matter and analyzed the letters which Sheila had written the more contradictory and dubious was Sharadammas story of the kidnapping. We stalled filing the habeas corpus and it came to light that Sharadamma is an orthodox Brahmin. She strongly opposed Sheilas relationship with Ravi who is from a lower caste. She had arranged for Sheila to marry a person who was also Brahmin. Sheila then eloped with Ravi. We refused to file the petition. So in a sense legal strategies bring to the fore the dilemmas between law and politics, individual people and broader social causes. Choices one makes can have an irrevocable effect on the life of the client, so they need to be well thought through before any form of action is taken. 6) The client as an active subject of the law While it is true that once one enters within the framework of the law, one is invariably defined by the law, there exist ways in which this power of the law can be understood by even poor people and used to defend their interests.


It is important in our practice of the law that the client is empowered through the process rather than the process making them more isolated or weak. This means taking time to explain the court procedure and processes to the client. Often especially in civil cases the clients are quite frustrated in the long delays and adjournments. With numerous interim applications being filed by either party they are confused as to what relief they would be getting and when and for how long. In our practice of law we explain to the client the court process by drawing diagrams and charts to explain the various stages of the case. Not that this leaves them any less frustrated but at least they can plan their life in accordance to the different stages of the litigation. For example, even though the woman would be filing a case of maintenance we ensure that she looks for other employment or give her contacts of organizations that would help her look after her and support her children. Through this her energies are not always concentrated on the case but to also look for other means to support herself and her children. We always insist that our clients actively engage in the litigation process be it getting the next hearing date or preparing themselves for the accused statement before the Magistrate or getting medical certificate from the government doctors to produce as evidence the injuries they have sustained. When the clients come to us they are quite desperate either because they have gone to other lawyers who have cheated them or they no support system whatsoever or have suffered continuous abuse that they are quite resigned to the fact that there is no other way out. Ratnamma a sex worker who is also HIV positive was beaten and arrested while she was having lunch by a WPC (woman police constable) She contested the arrest. In the beginning she was very overwhelmed by the arrest and its implications on her work. She was threatened by the police and the women who stood on the streets with her. Initially we sent Ratnamma to get dates of her next hearing and constantly sent her to the courts along with another sex worker to find out when the matter would come up for hearing. During this process she was forced to interact with clerks at the pending branch, the police and other court officials. Soon everybody in that court hall was quite acquainted with Ratnammas case. When the matter was posted for the Accused statement (S.313 of the CrPC) she courageously stated before the Magistrate the circumstances of her arrest. The magistrate listened to Ratnammas story which was 22

related devoid of any great legal argument or jargon. Ratnamma was acquitted and this entire process has been positive in helping her to articulate her story to the court and to be confident in accessing the court the police station and other state agencies. Similarly, Shilpa, Farida are no longer afraid of the judicial system. They have each contested three to four arbitrary arrests and to a large extent have conducted their own cases. Although, there have been mix ups with the dates which then results in the court issuing a non bailable arrest warrant (NBW) and this would require an extra effort from us to recall the NBW. Despite this, we have thought it made sense to insist that the women take responsibility for their cases. However this confidence that the client acquires can itself be a double edged sword. A single good experience can make one look to the court for justice where the court may be quite unable to do so. In the case of Ratnamma, for example, she was so emboldened by her experience with the court system that when she was being harassed by a client on the street she went to the police station to file a complaint. The police outraged by her audacity promptly booked a case of soliciting against her. 7) The court as socialization The court also functions as a mechanism through which a different social reality is constructed. What in many ways exemplified this was the case of Antony. Antony was a student of the 10 std doing his SSLC exam. Antony aged 15 years is from a slum in Bangalore. His mother a domestic worker and his brothers who are construction workers have put all their resources to ensure that Antony completes his board exams. To them he symbolized the aspiration to a world which was different from the world in which they existed. During his exams Antony panicked and ran out of the hall with his answer sheets. The next day he went to the invigilator to give in his papers of the previous exam. The teachers and the head master also panicked as they immediately felt that they would be suspended for dereliction of duty. Instead of making further inquiries with Antony they immediately notified the police. The police arrested Antony. He was detained in the police station and beaten. He was not produced before the magistrate. We telephoned the police several times asking when they would be producing Antony. The police panicked as 23

they did not want the lawyers to be involved. They misled us deliberately with regard to the time of production and released Antony. By the time we traced Antony to the court, the boy was traumatized. He was threatened and beaten by the police not to make any statement to the Magistrate. Once Antony was out on bail our task was to see that he does not get debarred by the examination board and that he works as an apprentice to keep himself occupied until he can write the supplementary exams. In this case apart from representing Antony in the court we were very much involved in ensuring that Antony does not get debarred and is admitted in a training institute. The clerk in the Magistrates chambers did not allow Antonys mother to enter the chamber with her sandals on. The Magistrate was perfunctory in recording the details and releasing Antony. The entire episode can be seen as really the first step in jerking a young person out of the context of the school and thrusting him into the face of the law. The experience is most definitely not pleasant and by treating Antony as a criminal, produces him as a criminal. If he becomes familiar with criminality, the courts would in no small measure be responsible for the same. It was no surprise to see that Antonys brother came back to us another day, because Antony had been arrested in another case.

bolti band!
- clifton d rozario contexts Luharia Shankaria is probably one of the most articulate and even well informed people I have met in the Narmada valley. Living in a village called Jalsindhi3 in the forests of the Vindhyas right on the banks of the river Narmada, he can articulate the struggle and rights of adivasis, provide a grounded critique of large dams, reel of names of herbs, where it can be found, and what ailment its portion would cure and how, besides, with the same ease, sing the gayana4, the song of creation and evolution that has been passed down orally from generation to generation of Bhilalas. However, like thousands of other adivasis in the Narmada Valley, Luharia has been in the midst of a serious crisis for some time now. He is a pronounced PAP i.e. project affected person. Since 1994 his fields were submerged every year during the monsoon by the rising waters of the Sardar Sarovar reservoir5. Post 2000 the increasing level of the reservoir every year has permanently inundated his house and most of his fertile flat land. Though this project has been hailed for its model rehabilitation policy by policy makers and the Supreme Court of India, Luharia still awaits rehabilitation in his village Jalsindhi. But this is not the full story of Luharia. From the early 1980s, like other adivasis in that region, he was part of organizations that have tried to articulate the rights of adivasis Initially it was the Khedat Mazdoor Chetna Sangath that organized adivasis to demand access to forest resources denied to them, protest against and prevent exploitation of adivasis by the Forest Department. Thereafter the Sardar Sarovar project emerged from the dusty papers of developmental projects and suddenly there
Note: This is a work in progress. 3 Jalsindhi and other adivasi villages are in the forests on the banks of the Narmada. These are isolated in the sense that there are no roads leading to them (to reach Jalsindhi one has to walk for several hours through forests and mountains). 4 The gayana is a narrative of the creation of the world and its living beings and is sung by the village baduvas during the Indaldev pooja. 5 The Sardar Sarovar dam is slated to submerge 245 villages, half of which are entirely populated by adivasis.


was another adversary. Adivasis like him and other farmers from the plains upstream organized themselves under the banner of the Narmada Bachao Andolan (NBA) to raise fundamental questions about the efficacy of large dams, rights of project affected people, rehabilitation policy of the State, etc. What were also raised were the natural rights of adivasis to their ancestral lands and the cultural loss that the dam induced displacement would cause. After years of dharnas, deliberations with the State, satyagrahas, the NBA, in a move to augment its other strategies decided to approach, the Supreme Court the ultimate, officially atleast, arbitrator of justice in the country. To this end NBA approached the Court with the Writ Petition No. 319 of 1994 filed in May 1994. The Court stayed the construction of the dam for almost 5 years. The matter was finally disposed off on 18th October, 2000, with the construction of the dam being permitted subject to fulfillment rehabilitation pre-conditions, among others. Despite this, or, in the minds of people like Luharia, due to the judgment, he still awaits rehabilitation. Still hoping for the Supreme Court to provide justice, NBA filed another petition in 2002, Writ Petition No. 328 of 2002 in which the court passed an order stating that every individual oustee was free to approach the court with their grievance after they had exhausted the other official avenues. Still Luharia awaits rehabilitation. This article does not seek to make a critique of the efficacy of the Sardar Sarovar dam nor is it in any way an attempt to valorize the NBA. There has been so much written on these fronts that, at this point in time, one would seriously have little to contribute.6 In fact, this article does not even aim to critique the Court for what it did not do for people like Luharia despite a seething rage at the antics of this so-called Court of Justice. Indeed much has been written on this front as well.7 Instead, this article seeks to focus on the fact that the court in particular and the legal discourse in general did not think it necessary to hear him out, or rather let him speak. And yet found itself capable to talk about him.

Please visit www.narmada.org for more information on this. Also read Muddy Waters authored by Rahul Ram for a critique of the costs and benefits of Sardar Sarovar Project. 7 There is booklet titled People Vs Verdict brought out by ???


humru othro e kohnu se8!!! Difficult task that it already is, in addition to running the real risk of reducing the grave import of more than two decades of organized resistance, let me try and provide an account of what an articulation of rights and entitlements by Luharia. More often than not this inevitability would begin with them being the original inhabitants of forests and the nature of relationship shared between adivasis, land, forest and water from time immemorial, the struggles against the British for control of the forests, stories of Khajya, Chitu, Bhima Naik and others that are historically recorded and a case of local legendary lore. Further, the fact that Independence has not meant much to them since the troubles they face are the same, the only presence of the State being in the repressive and exploitative form of the forest department, lack of any development (no schools, roads, health service, public distribution system or any such social welfare scheme), then moving on to the need felt for organizing themselves, dharnas, sathyagrahas, attempts to get themselves rehabilitated, attempts to stop the dam construction, increased apathy of the state, arrests, lathi charges, unfulfilled promises of rehabilitation, police firings, continued mobilization and the ongoing struggle. Such articulations (and their songs) provide a fascinating account on the invocation of their history even in understanding their concept of rights in the present context. There appears to be a curious mix of both the traditional and the modern in the sense that the understanding of entitlements stems from both, customary rights, and citizenry rights synonymous with the modern Indian State. The entry of the dam on the scene brought with it another source of legal rights in the form on entitlements flowing from the rehabilitation policy. However, the centrality of the traditional rights around which the rights from the others accrue is clearly maintained. In this context, the gayana can be seen to be the epitome of these traditional rights, passing from generation to generation reminding them constantly of their history and in a way defining their future simultaneously. all rise

This is all we have to say


There is a definite method of approaching the Courts. There is the intermediate in the form of the lawyer and the arbitrator in the form of the judge. In the case of NBA, it was decided that public interest litigation would be filed before the supreme court hence the location was the supreme court and since one of your lordships on the bench was the chief justice court no.1 it was. What is to be said to the court must be respectfully showeth only in a particular format in English substantiating these submissions before your lordships by referring to the Constitution, various parliamentary laws, rehabilitation policy, international covenants and precedent judgments. The relief that are respectfully sought from this Honble Court are in the form of prayers which the court may be pleased to sanction. There are also dress codes not only for the active participants in this floor show, but apparently, there is one even for those attending court proceedings (more about that later). For the advocates black gowns with different forms of capes to distinguish the senior counsels from the junior advocates are a must. This is a far cry from the systems of dispute resolution that have evolved in these communities. These systems and processes are geared to deal with disputes revolving around various issues, which to use common legal parlance are civil, criminal and torts. The panch or group of dais (wise old men), closest parallel being the jury, sits to arbitrate over these matters and resolve them. However, disputes were settled through a complex web of negotiation and argumentation and the sitting on a single dispute went on till some form of a resolution was reached. There is a general consensus about the maintenance of decorum in these proceedings and the inevitability of acceptance of the decision of the panch. However, the practice of approaching the police station to file complainants is also present though people are vary of this still since the police use this as an opportunity to extract money from both sides. There has been no shift away from the prescribed form and content in the writ petitions filed by the NBA. There was a definite attempt to produce a document that best captures the spirit and ideology of the movement within the restrictive framework of constitutional law. Needless to add it was in English and top notch senior advocates of the supreme court fought the case on behalf of NBA. It is my belief that this is not a comment on NBA rather it is more so on the rigidity of the legal discourse and legal 28

institutions it chose to approach. It is also a comment on the fact that in a democratic set-up the belief in the judiciary to deliver justice when all other avenues fail is pervasive. The process that was followed could be summed up as follows. Senior activists of the NBA with the necessary knowledge of English, writing skills and ability to interpret the law produced the writ petition. This was after intense discussions on what should go into the petition were held in which activists and village representatives participated. This was then approved by the advocates for NBA following which it was filed. The respondents, in this case the Union of India, State governments of Maharashtra, Madhya Pradesh, Gujarat and Rajastan and the authorities placed with the responsibility of completing the project and rehabilitating the project affected people, then filed their responses to the writ. The Petitioners i.e. NBA then responded to these through affidavits and counter affidavits. Thus the cycle of affidavits, counter affidavits and written submissions was set in motion. During hearings the advocates chose what parts of the legal documents need to be read out to the lordships deciding that these need to be emphasized and assuming that the lordships read the rest. Within this process, the appropriation of the voice has easily operated at multiple levels to ensure the effective silencing of the person, from Luharia to the person who represented the case in the letter of the court documents to what the advocates accepted as valid arguments and then, finally, to what the judges chose to listen to. So the activists wrote the legal documents, more often than not, raising crucial issues about the efficacy of the dam, environmental impacts and rehabilitation, but also responding to the respondents legal documents. So the lordships of the supreme court heard the arguments of the senior advocates appearing on behalf of people like Luharia and read writ petitions, affidavits and written submission written by the NBA activists. The silencing is made effective not just from the method but also from the language and form that was used. This was not the panch that he was used to where he could argue his own case in his own language while articulating his rights using a framework familiar to him. These are but few of the critical modes through which law 29

constitutes its own authority in the most indiscriminate fashion. The linkage between language and power emerges as one of these with language operating on behalf of power. The use or the denial of use of a particular language has resulted in the effective silencing of people like Luharia reinforcing hierarchy and subjecting him to the sidelines as a mere spectator. There are so many other stories that were needed to be told and needed to be heard by the court for it to begin to understand why the adivasis did not want to leave their lands. One such is that the word Jalsindhi actually means a well of water and that the Narmada on its journey to the Arabian Sea from Amarkant9 had night halts at villages where she listened to what its people had to say. However to enable herself to stay stagnant she flowed into the earth creating a well and that Jalsindhi was one such village, which is why the relationship with his village and the Narmada are sacred and central to his existence. Another of course relating to sacred spots in that particular region that are central to the spiritual beliefs of the adivasis and whose relevance lies precisely in their location. For instance, the mountain of Rani Kajal is the most important goddess of the Bhilalas.10 There is a sacredness of the immediate geography that interweaves their past with the present and the future, their spirituality and everyday life with their politics. And this is best communicated by the adivasi song of resistance that goes: Rani Kajala suroo amu inu kaha beeje humu juwanya / e to hamari paala kootri inu kaha beeje humu juwanya / baaji kaye mota hoya inu kaha beeje humu juwanya. (We are the children of Rani Kajal, why must we fear these people (police, governments, etc.) / they are the dogs that we look after why must we fear these people / we have eaten our vegetables why must we fear these people. The last line basically means that we live of our own efforts so why must we fear these people.) It was these and more that were denied entry into the official legal discourse. The denial was at the level of representation on the official documents i.e. petition, written submissions and affidavits and at the level of oral representation before the judges. It


This is the place where the Narmada originates For more read In the belly of the river, Amita Baviskar


is in this way that people like Luharia, apparently not good enough to be heard, have been denied opportunity to speak. However, the denial was not just of voice but of presence too. The sheer physical distance between the adivasis areas and the insurmountable economic implications of the journey and stay at Delhi were one of the factors that regulated the presence of adivasis at the hearings of their petition. The adivasis in question here are not generally known to be big travelers. In fact prior NBA and its dharnas in political centres like Bhopal, Bombay and Delhi, people like Luharia found no reason to travel to these places. However, the censorship of presence did not just operate at this level. In one instance certain adivasis were told to take off their pagadis and then enter the court hall since it would be disrespectful to the lordships. Apparently the only head wear allowed into the supreme court rooms are Gandhi topis and Sikh turbans. After much heated discussion the adivasis were led off to the room of the Security Head who finally relented to them wearing their turbans in court after he was convinced by the argument of the adivasis that their pagadi was as integral to them as a Gandhi topi would be to a gandhian and a turban would be to a sikh. The hurdles did not end there. Once inside the silencing of the person was most evident. Immediately the people are transformed into vague spectators without the necessary capabilities to comprehend what was going on. To NBAs credit, it ensured that in all hearings there were people like Luharia present with the activists or supporters constantly translating the proceedings of the court into a more understandable language. However, this was all it was. A drama unfolding before him, the repercussions of which he is aware of, yet not having much of a part in it. Ranya dai, one of the senior adivasi activists from a village called Mukhadi in Maharashtra, once remarked on this and was appalled that the lordships chose to listen to men in black coats instead of himself considering that he could narrate his woes best. courtspeak Though your lordships did not care to listen to people like Luharia that did not stop them from providing a description of who adivasis are and then deciding on whats best for them!


To quote from the judgment: The majority of the project affected families are involved in rain-fed agricultural activities for their own sustenance. There is partial employment in forestry sector. Since the area is hilly with difficult terrain, they are wholly dependent on vagaries of monsoon and normally only a single crop is raised by them Contrast this with one of the verses of the gayana: "Now God had a garden with all kinds of plants in it. Part of his garden was for us humans this was the garden of jowar. Then god gave breasts to the Jowar. Men fed from the breasts and blood flowed into their veins. That is why if we do not eat jowar our blood dries up. For livestock there was a garden of jinjvi grass and God gave it breasts livestock also came to have blood." Clearly the relationship shared with land, food produce, livestock and fodder is more than just a functional one and can be located within the realm of spirituality. The spiritual beliefs of the adivasis are such that there are gods and goddesses for trees, grass, mountains, tigers, etc that in a concrete sense provides for an opportunity to understand the relationship shared with nature and to understand their relationship to land one would first have to comprehend this. It is important at this point to factor in the societal changes that have taken place in these adivasi communities affecting the once-may-have-been symbiotic relationship that has taken on a different avatar today with some remnants of the philosophy of the gayana. The courts however were not interested in this and this is symptomatic of the inability of legal discourse to accommodate any other world view than what it held, yet the skewed power relations at work enable it to dismiss these conceptualizations. As a friend pointed out, this ability to comprehend world view is possible only when there is an admission of the existence of possible interlocutors, or that there are concepts which are common to the two world views. However, in this instance the judges articulation smacks of an arrogance of belief in one world view that refuses to allow for any possibility of legitimacy to the other world view. The court goes on to add that, hence, their displacement was actually to the benefit of these illiterate adivasis since they would be rehabilitated to new locations where they would most definitely be better off than what they were since at these new locations they will have more and better amenities than which they enjoyed in their tribal hamlets considering that the tribals who are affected are in indigent circumstances 32

and who have been deprived of modern fruits of development such as tap water, education, road, electricity, convenient medical facilities, etc.. This, the court believes would lead to their gradual assimilation in the mainstream of the society and will lead to (their) betterment and progress The court did however note that displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions but added that this becomes necessary for the greater common good. The court most emphatically states that a nature river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or near by. Further, realizing the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for take over for dam or any other developmental activity, the project implementing authorities have to implement R&R programmes. Compare this with the concept of culture and custom articulated above and what clearly emerges are the obvious differences in perceptions of ownership, use, property, spirituality and rootedness, indicating the different worlds that the two habitate. The most audacious part of the judgment however is this. To quote: It is not fair that tribals and the people in un-developed villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life style. Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it. What people like Luharia want is development but not by displacement. In fact the struggles that he has embarked on from the beginning were for, among other issues such as control over forests, etc, schools, roads, health services and other such fruits of development that was denied to him. Probably the lordships should have heard him first before taking a call on whats best for him. kancloseion The audacity and arrogance of the courts and the legal discourse in general gives one the impression that this is not a way of keeping people out which would appear brutal,


but rather a way of deciding who has something worthwhile to offer and who is qualified enough to speak, a rather sophisticated exclusionary process. It is my belief that one can clearly understand the legal discourse as moderated by the supreme court as such, to be one that does not provide for a site for the selfarticulation of their natural rights by the Narmada adivasis, using their language and understanding of entitlements and justice. Further, this legal discourse is not just marked by denial of a cultural knowledge but also by pompous bias and discrimination of the adivasis stemming from the power that the major players in this discourse have. As pointed earlier the silencing of the subject operates at multiple levels. From the physical, social and ideological impenetrability of the deep-set structure of the legal system and its functioning to the regulation of who are privileged to negotiate within this maze. From the vulgarly skewed power structures associated with the legal system, to its pompous claim of knowing-whats-best-for-all. Further, from regulating the approved attire to the rigidity of which the language is to be used. Underling all this is the basic premise of law and the legal discourse as it stands today. The unshakeable belief that it is logical and rational to the extent of accommodating all individuals and the lack of any self-doubt regarding its capacities smacks of such arrogance as can only be attached to the narrative of legal reason. Talking about what he refers to as legal deafness, Peter Goodrich11 writes that it exemplifies an habitual logic of law, one which throughout its history has systematically obliterated difference in all its manifestationsthe logic of the common law has been one of a comparable lack of alternatives, of a refusal to recognize that vast host of the other: the outsider, the stranger, the vagrant, the marginalWhat is their place in the law, what is their voice, whose language do they use? bolti band? Yet this does not go unchallenged and those who forefronts of this challenge are precisely people like Luharia. Post the judgment of the court, thousands

Language of Law, Peter Goodrich


of adivasis and farmers from the Narmada valley descended on the supreme court to condemn its judgment. For a full day they blockaded the gates of the court all the while shouting slogans against its judgment and giving fiery speeches critiquing the fallacy of legal reasoning. It is said that never before in the history of the supreme court has such a picketing taken place.


11th May
- jagadeesh .b.n

A few people from L.R.Nagar in Bangalore came to us to discuss the issue of one Mr. Sayad Sadik Ali and Allabakash who were picked up by the L.R.Nagar Police Station on 5th evening at Hosur Road bus stop near Koramangala while they were coming back to their house from the place where they work as a mechanic in Hosur road. They were asked to go to the L.R. Nagar Police Station with out giving the reason why. As soon as they reached the police station they have been booked for an offence, which took place on 25th March evening at L.R. Nagar12. Sayad Sadik Ali was just 17years when he was picked up by the said police. Even though he protested saying, I am not involved in the alleged incident and I am just 17 years, the police have booked him in the old un-known pending case as he is also one among them and in the remand application police also mentioned that, he as been identified and brought from the locality on 6th at 12.30 noon. By the time these people reached us Mr Sayada Sadik Ali has spent one day in the police station and 6 days in the Prison. Since he is below 18 years we decided to transfer his case from the regular court to the J.J.Board13. The day he was produced in the court some other advocate had filed a Vakalathnama to represent him. Since some one is already representing him in this court we can not represent him unless we get a No Objection Certificate. Finally their relatives got the NOC on 12th and on the same day we left for the prison to take the signature from Sayad Sadik Ali.

Prison and the police:


25th Evening because of an old small fight two groups have come together and started fighting each other which ended in throwing stones and also putting fire to the local residents houses?. In this regard 70 un-known people have been accused by the time of arresting Sayad Sadik Ali police have arrested 18 others. 13 This Board has been constituted under the J.J.(care and Protection) Act 2000. All the offences from the children should be tried under this act. The children until they get the bail they should be kept in remand home.

Since Prison rules regulate visiting hours we could not meet the person in the morning, so there was no option for us except to wait until evening. We did try to speak to the Jailer saying that, under age people are not supposed to stay in the prison. Due to police misrepresentation of this boys age he has been sent to prison, so it will not violate the rules if the authority makes arrangement for us to meet the boy by which we could take the signature, which will help us to transfer the case to the J. J. Board, and the child will be sent to the remand home. Our plea was not accepted and we were asked us to come in the evening. With out having any other option we waited until 4 pm and then we met him and took some information about his arrest, his present condition and also took his signature and told him that we will transfer the case from this court to another court and he also will be transferred mean while. Seeing his happy face and with some hope we left the prison.

In prison:
This is a new exercise for us; going to the prison and taking a signature, we have been to this prison many times to meet the people over there but this is the first time we are taking a signature from this prison. We have taken the signature for another case from different prison; since case which we were going to represent was a high profile, one so no one has the guts to ask for money, and we could do our work more easily. This prison concerns few other people whom we know who are serving as undertrials, so it was not that difficulty for us to locate these boys but still it was not that easy in terms of prison administration and the things which work in side the prison. For an example, as soon as we took the signature the inspector who was in-charge of that visiting room asked for money. We did not know how much to give and as a policy we will not give any money to any one as bribe. It was more in terms of a shock for us to see some one asking for money in side the prison. Its also because the kind of the case and the people whom we were going to represent was a poor Muslim boy. As a policy we will not give a bribe any where or for any one, its also because the kind of people we represent in the court are mainly poor and marginalized people. Since they do not have the capacity to pay, where is the question of paying bribes? It was shock to see, at the same time some other advocate was giving Rs.100/- to the same fellow and in addition to this some more money to the people who were in-


charge14 of calling their clients from cells. We tried to tell them that we are not interested in making money out of litigation. In addition to this we are doing free litigation for many people, and we charge very minimum fee, so you should not ask any money from us.

(Theory and Practices)
Finally we moved the application for transfer on 13th and the magistrate had posted for filing the public prosecutor objection on 14th where he filed no objection on the same that day and the matter was posted for order on 15th May, 2004. On 15th the learned magistrate passed an order directing the police to produce the child before the J. J. Board immediately and that the child should be transferred from the prison to the remand home immediately. Since the 15th was a Saturday and the file had reached the pending branch at around 4.30 PM nothing much happened (it is also we did not pay any thing to them).But they promised us that they will do it on Monday. On Monday as usual we prepared the bail application to present before the J.J.Board, with the assumption that police will be bringing our boy to be produced before the J.J.Board. Once we reached the court we came to know that the process is not simple. In the pending branch they had not prepared the release warrant for the prison. On the other hand the J.J.Board was no ready to accept our application unless they get the boy before them! So what to do? We were having the informal discussion with the J.J.Board Bench clerk, where he said, the transfer is simple but to bring them before the J.J.Board is not simple. Many boys have been ordered to be produced before the J.J.Board but the police will not do so until and unless you pay them and ensure that they will bring them from the jail, and also they have to produce the case record before the J.J.Board. And unless they produce the record before the J.J.Board we will not hear the matter!


They are the convicted prisoners who were serving there sentences and doing this as there part of work which is allotted to them in day today basis.


What do we do? As a policy we are not supposed to bribe, unless we bribe the boy will not come out from the prison. We tried to meet the police and explained to him that we are not working for money we will not , but his answer is very clear, I am not ready to do charity work you dont take but ask the accuseds family to pay for me Charity work? Is government not paying the police? Bad question I believe, he might have answered many time, his answer was very clear, I will do it, I am not telling that I will not, see I have many thing to do (he shows the case diary). I told the pending branch to prepare the memo, I can not prepare that, once they prepare it, I will take it and give in the police station thats my work I will do all these because govt pays me. Is that so simple? No, since he is in the court he has the fear I might complaint to the magistrate against him. The main question is, whom shall I complain to if a policeman does a mistake when he is in a police station? He is in the police station which is his Kingdom? We have wasted 3 days! Now we thought that we will send the relative of the boy to the station along with the court police15. We asked them to go with the police and take care of his travelling expenses and get him some tea! Finally he sat in the police station serving the police need16 until 10 PM and was again asked to come to police station next day morning to accompany them to the prison. Luckily the boy has been produced before the board on Tuesday evening and he has been remanded to the remand home. The board has problem in releasing the boy to his parents because they needed surety from some one so they just rejected the plea of father as surety. The next day we produced some other relative which was been rejected because they needed some land or some employment proof as surety. Finally on Saturday we produced another one of his relatives who was working as a KSRTC mechanic and the boy is finally out on bail.


Every police station has one person as court police who will be keeping the track of the cases which there police station filed. He will be having the responses to take in charge of serving the summons and bring the witness etc. 16 Tea cigarette etc


Of Master Plans, Laws and Illegalities an Era of Transition17

- alternative law forum It is the ultimate aim of every Bangalorean to own a house. It is virtually impossible for a person who does not own a site in Bangalore to approach an authority, agency, developer or dealer and purchase a site across the counter by paying its price.the lower middle class or weaker sections part with their hard earned money in the hope of owning a piece of landThe numbers of public who have resorted to such illegal purchases and unauthorised constructions and the sheer number of public involved in such acts has virtually converted what will be a law and order situation into a human social problem.18

Introduction One of the key contributions of urban studies has been to complicate any simple narrative account of modernist planning. The project of planning has always unfolded itself within the larger fabric of models of development, mirroring transitions in social and economic relations. In the era of globalization and rapid urbanization, it is not the nation but the city which is seen as the circuit through which flows of capital and service occur. There is little doubt that in the past ten years, Bangalore has attained almost a mythical status as the silicon valley of India and emerged as one of the important nodes for the global flow of services, serving as the back end of many corporations across the world. Over the past ten years we have seen a significant transformation of Bangalore with the emergence of the dominant narrative of Bangalore as the silicon valley of India, a symbol of the emergence of India as an IT superpower, and as a global city working in virtual time with the US in terms of the provision of IT enabled services. If dams were the most important symbols of post colonial Indias entry into the modern, the IT industry has emerged as the most important symbol of Indias entry into the global or into the new modernity marked

Introduction to the report prepared by ALF in November 2003 and commissioned by the SCE towards the revision of Bangalores Comprehensive Development Plan. The full report is available at www.altlawforum.org 18 K.C.Raju Reddy v. Commissioner BDA, Karnataka Law Journal 1995 (4)

by the pre-eminent position given to knowledge based services. The Bangalore Summit in 2000 represented a new stage in the public life of the city, bringing the private sector to the foreground in a city which has long been envisaged and promoted as the public sector city par excellence. Shedding its more timid presence in a city, where the state has long been the prime mover, the new corporate culture attributes the citys problems to inefficient management while envisaging realizable plans that made a Singapore possible. This is a fresh attempt at moving to center stage the economic and technological aspects of planning which may be at odds with social, community and ecological uses of city land. Co-existing parallel with this vision of Bangalore as Singapore and the trajectory towards this vision is a city mirroring the silent but steady growth of local economies lacking the infrastructural provisions and state backing unlike the IT companies. This city weaves in its core the unorganized and unplanned growth of the city, both economically and spatially. It is here that the urban poor comprising a quarter of the city reside and carry out trade in conditions that make a decent living standard unattainable. It is in this larger context of globalization and the changing self representation of Bangalore that we have to contextualize the present proposal of rewriting the Comprehensive Development Plan ("CDP"). 19 A further point to note, in the context of the CDP rewriting, would be the present emphasis and great stress by the State government to promote Bangalore as the desired destination for IT companies. One of the biggest carrots being dangled is the availability of land, subsidies and guaranteed infrastructural services. This necessarily impinges on the CDP process since we witness land-use change of great scale and pace especially in the light of the proposed IT Corridor. As reported in a prominent newspaper, At a recent meeting on IT Corridor, convened by Chief Minister S M Krishna, the need for incorporating IT Corridor Master Plan

Nair, The reluctant metropolis ( Forthcoming)


into the City's CDP was felt as it would ensure a systematic growth. The land-use pattern will be determined by the CDP for business, residential, commercial, educational institutions, recreation and transport and infrastructure. It will drastically reduce the scope for violation of land use20 While this only symbolizes the seriousness of the thrust being given to the IT industry it has serious implications for zoning and regulations. A large portion of the planning area for the IT Corridor falls within the green belt area. To quote from the report, Out of 138.6 sq km, a large part of the land falls outside the CDP boundary for Year 2011 on land zoned as Green Belt zone. No development is allowed unless the CDP boundary can be reviewed and amended. This issue should be addresses at the next CDP review.21 This represents one end of the spectrum that impinges on the process of rewriting the CDP and lays the context for some of the key concerns of this report, which are to examine what these wide ranging global changes mean for our idea of planning and to what extent do they reflect the diverse interests that lie in the city. This space of the new global city (unlike the rest of India) however has to jostle, economically, culturally and legally with the older networks of interests and claims upon the city. We should therefore have no doubts in our minds that any attempt at formalizing the new vision of Bangalore will have to contend with the various contestations and contradictions that competing models of development and interests raise. One of the critical flaws of the modernist project of planning has been to imagine itself as mega project of social cohesion, creating economic and social efficiency through the orderly and planned development of society. It unfortunately assumes for itself a set of stable references such as 'order', 'development', 'efficiency', 'legality' etc. without realizing that these are the very terms of contestation and conflict. James Holstrom writes for instance that "modernist planning does not admit or develop productively the paradoxes of its imagined futures. Instead it attempts to be a plan without contradictions or conflict. It assumes a rational domination of the future in which its total and totalizing plan dissolves any conflict between the imagined and existing society in the enforced coherence of its order. This assumption is false and arrogant as
20 21

Deccan Herald, Wednesday, December 18, 2002 ibid


it fails to include as its constituent element, the conflict, ambiguity and indeterminacy characteristic of actual social life" It is of course widely acknowledged that activities and institutions of planning really account for a marginal percentage of land and housing in most Indian cities and it is now widely acknowledged that Master Planned areas actually service only a small part of the city, with the rest being given over to unauthorized (middle to lower class) constructions, revenue layouts, Gramthana sites and slums. There is little agreement about the exact proportion of planned to unplanned city. But it clear that there almost exist parallel cities within most Indian cities, the city of planned development is marked by official markers of development and legality, while the other unplanned city is often represented in terms of un-orderly development, illegality and chaos. This gap between the intention of the state and the ground reality is usually explained in terms of the failure of planning, an inability of the technocratic planning apparatuses to manage or cope with bewildering demographic growth. There is however a larger question that needs to be addressed here, which is to examine critically the correlation between planning and illegality. It is far too easy to look at them as distinct processes and, from such perspective acts of illegalities would be seen to be those which do not conform to the planned growth of the city. There is however another manner in which it can be examined and this would require us to look at the production of illegalities as a result of the planning process. Clearly any simplistic account of the widespread illegality in terms of failure of planning, corruption, etc. would only perform an epistemic violence which does little to aid our understanding of urban experience and the ways in which people create avenues of participation and make claims to the city. One of the tasks of this report is to examine the various registers through which the experience of the city is mediated. There are at least four competing registers which find their way into this report: First, there is the official history of the city as narrated through the prism of property laws, planning laws and the institutional forms envisaged for Bangalore's urban growth and development. It is within this account that the 43

task of rewriting a CDP would fit. These annals of official history, document the institutional restructuring that is required to accommodate the changes in Bangalore's vision. They also document the various legally recognized land tenure forms through which people may acquire land, housing urban amenities. They also deal with modes through which people may alienate property. The resurgent and modified activities of the para-statal bodies such as the Bangalore Development Authority (BDA) and the Karnataka Industrial Areas Development Board (KIADB) in the context of these changing development trajectories and under the influence of and in coordination with the newer forms of governance such as the BATF and other corporate private interventions. The housing projects of the BDA, which slumped for most part of the 1990s, witnessed resurgence along with the branching of BDA activities into the sphere of urban infrastructure development such as flyovers, ring roads, grade separators, etc. The monopoly over the housing sector has been unabashedly flaunted as the BDA comes crashing down on revenue layouts. The KIADB has also emerged as a major player in shaping urban land-use by means of its role in the completed projects like the Electronic city, ITPL, etc and proposed projects such as the Devanahalli International Airport, IT Corridor, etc. The implications of the Right to Information Act, and decentralization of powers (as per the 73rd and 74th Constitutional Amendments) in contrast with ongoing corporate government collaborations at the realm of policy, for Bangalores planning process make up the third register. In the early nineties, the government incorporated the 73rd and 74th amendment to the constitution which sought to decentralize and devolve power to local bodies including the Panchayats and municipal corporations. A key issue that is raised in this study is an assessment of the impact of the 73rd and 74th amendment and to what extent they have been realized, or unrealized as a result of the converging forces of globalization and the change in models of development. One can see for instance the clear conflict between the goal of decentralizing power on the one hand, and the strengthening of institutions of planning such as the BDA, 44

the KIADB. All this, while the role of the corporates in governance is being strengthened. Intrinsic to the very idea of centralized planning, is a top down approach which has no place for the participation of local bodies or elected representatives at the local level. This conflict emulates earlier modes of disenfranchising which set up local bodies as the enemies of development, rather than looking at them as legitimate participants within a process of development that clearly affects local communities and interests. Finally, and perhaps in our opinion, most importantly an account of the social life of land and the various networks of relationships and practices that determine land claims/ land tenure in Bangalore. This is a world marked by ad hoc practices, porous legalities and its stubborn refusal to be subdued by the dominant narratives of unplanned development, illegality and unproductive transgression. It is our argument that these instances of unplanned development and illegal practices tend to pose a narrative problem for the official annals described above as well as for the new institutions of governance. One of the tasks, then of this study is to outline a few entry points, beyond the looming tale of legality/ illegality, through which we can make sense of these economies of participation.

Cities, Citizens, Comprehensive Plans and Contested Claims The three petitioners in the group of Writ Petitions 4610-4612 of 1981 are a journalist and two pavement dwellers. One of these two pavement dwellers, P. Angamuthu, migrated from Salem, Tamil Nadu, to Bombay in the year 1961 in search of employment. He was a landless labourer in his home town but he was rendered jobless because of drought. He found a job in a Chemical company at Dahisar, Bombay, on a daily wage of Rs. 23 per day. A slum-lord extorted a sum of Rs. 2500 from him in exchange of a shelter of plastic sheets and canvas on a pavement on the Western Express Highway, Bombay. He lives in it with his wife and three daughters who are 16, 13 and 5 years of age.


The second of the two pavement dwellers came to Bombay in 1969 from Sangamner, District Ahmednagar, Maharashtra. He was a cobbler earning 7 to 8 rupees a day, but his so-called house in the village fell down. He got employment in Bombay as a badli kamgar22 for Rs. 350 per month. He was lucky in being able to obtain a "dwelling house" on a pavement at Tulsiwadi by paying Rs. 300 to a goonda23 of the locality. The bamboos and the plastic sheets cost him Rs. 700. - Extract from Olga Tellis v. State of Maharashtra We have begun this section with an extract from the narration of the facts from the landmark case of Olga Tellis v. State of Maharashtra. This case is popularly represented in standard constitutional law textbooks as the case which expanded Article 21 of the constitution to include the rights of pavement dwellers. However, a close reading of the case reveals that the final order only allowed the pavement dwellers not to be removed until the monsoon was over to minimize the hardship involved. So despite the recognition of the immense hardships which the pavement dwellers in Bombay face as a result of the inability of the state to provide housing to majority of the urban poor, the court subscribes to the larger logic of planned development and in this vision that it shares with the city planners, clearly there is little space for the pavement dwellers. This account of the interaction of law, violence and a section of the urban population is more or less the grim reality of a particular experience of the older city. The new global city certainly does not do away with the conflicts of the older. Instead it tends to sharpen the polarities between those with privileged access to the city, and those who do not have similar access. In this report we have attempted to provide an account of the various marginalia of the city and how they lay claim to the city and access rights in the city. There are specifically two lines of arguments that we draw: Understanding illegalities The first line is to argue that the gaze of the law has
22 23

shift worker local goon


always been upon activities of those in the lower classes, and from this gaze it is inevitable that almost every act of securing a right in the city (slum dwellers, hawkers, squatters, petty shop owners, landless laborers etc) will emerge as an illegal one. However if one were to reverse this gaze of legality and include within its ambit, those with relative privilege in the city (house and shop owners who encroach upon the footpath, construction companies which secure the right to construct buildings beyond the permissible limits, companies which use the eminent domain principle with the help of the state to acquire cheap land, large companies / apartments that privatize pavements) and look at the intricate network of propertied interests and power, the illegal acts of the urban poor appear relatively trifle though the consequences they face are far more severe. Claiming the city: Claiming Citizenship We believe that one interesting manner in which we can begin to understand these practices is by pushing our liberal ideas of republican citizenship to practices which are not usually considered within traditional political analysis. Our argument is that rights of citizenship and democracy in terms of access to economic and social opportunities, democratic institutions and representation etc are often mythical rights which are constitutionally guaranteed, but have a precarious shelf life when it comes to actually being realized. Instead the confluence of new forms of property and the alliance between the state and huge corporate interests create everyday illegalities, reminiscent of the 18th century transition from the commons to privately legislated property rights.

Understanding illegalities: The understanding of the dominant legal framework defining the legality or illegality of the above tenure forms is rather simplistic necessitating a scrutiny of the ambit of illegalities. Illegality clearly permeates all sorts of social relations in urban areas with respect to civil, commercial or criminal law.24 The focus in the present endeavour has been on the illegal aspects of social processes providing access to land and housing. As


Fernandes and Varley, 1998


pointed above illegalities prevail in the actions of all classes of people from the upper to the middle class to the urban poor. Illegality is commonly perceived to be one that is associated exclusively with the poor. However, this is not exclusively the case. Illegal forms of production of urban land and housing are being observed more and more frequently in the more privileged parts of third world countries. They involve, for instance, closed condominium developments in which gates creating private enclosures may prevent the public from gaining access to the road system as well as cordoned off or walled-in beaches, the occupation of environmentally protected areas25, etc. This understanding stands true also for Bangalore. One is witness to the flurry of upper-class enclosed housing enclaves in villages on the fringe areas where access is denied even to the residents of the villages. Within the city we also see the fact that public spaces such as parks, etc are being maintained by corporate houses and access to parks denied to certain sections of society. It is common practice for vehicle owners to encroach on and park their cars / motorcycles on the roads through the night and day. There are other forms of illegalities including the violation of building bye-laws and zonal land-use regulations especially in the upper and middle class localities like Koramangala and Indiranagar. It is a known fact that large real estate transactions involve the movement of black money that goes unaccounted for. Another major land settlement process that is termed as illegal is the formation of revenue layouts. Similarly the urban poor are party to a wide range of illegalities such as pavement dwellings, slums, hawking, illegal water, sewage and electricity connections, etc. The ad hoc treatment meted to the various illegalities by the legal authorities forces one to assume that some illegalities are more illegal than others. More often than not the illegalities of the urban poor are dealt with much more strictly than those associated with the middle or upper classes. To illustrate this with an example; while pavement dwellers are denied any tenure security or access to basic services since



they are encroachers, the encroachments on roads for parking of cars/motorcycles in middle/upper class areas day and night, or the conversion of pavements into private gardens and parking lots is generally ignored. It must be noted that though illegalities permeate all classes of the social strata the ones that are hit most are the urban poor. This is seen in land settlements such as slums and pavements which are cracked down upon since they violate ownership as well as rules and regulations while other housing settlements that blatantly violate building bye-laws and planning norms are let off or are regularized more easily. Further the State plays a very important role within the formation of these illegalities and in many instances is the perpetrator of illegalities itself. Regularization vs. Change in Law! Over the past two decades a number of illegal revenue layouts have been regularized by the government from time to time. Most of these layouts catered to the lower to middle class and managed to get regularization after much difficulty. Prior to this, they were subject to severe difficulties and managed access to basic services by using various tactics ranging from bribes to loopholes in the law to political patronage. However, presently there is a stringent drive initiated by the BDA to de-legitimize several revenue layouts that are coming up on the fringes of Bangalore. While the BDA claims that they are illegal, the developers (both big and small) of the revenue layouts claim to have clearances from the local authorities (City Municipal Councils). However, the differential treatment is best exemplified when contrasted with the case law surrounding the Bhaktavar Trust v MD Narayan that also reflects the double standards adopted by the Authorities in enacting and enforcing planning laws. In 1980 certain builders were granted permission to construct eight-storied building, 80 feet in height, in Rajmahal Vilas Extension by the Corporation though this was in contravention of the Outline Development Plan and the Zonal Regulations, which only allowed for construction up to 55 feet. The permission was challenged by the adjoining property in the High Court and in June 1982, after hearing arguments, the High Court struck down the permission accorded to the builders to build up to the height of 80 feet. This decision was unsuccessfully challenged by the builders before the Supreme Court.


The Commissioner thereafter passed an order that 3 floors (6th, 7th and the 8th floors) of the building constructed by the builders be demolished. Upon the failure of the builder to demolish the three floors as per the orders of the Commissioner, a contempt petition was filed in the High Court for non-compliance. While the matter was pending, the Bangalore City Planning Area Zonal Regulations (Amendment and Validation) Act, 1996, (Amending and Validating Act) was passed by the Karnataka Legislature, modifying the maximum height of the new building up to above 165 feet and validating the new construction raised in violation of Outline Development Plan and the Zonal Regulations. After this Act came into effect, a fresh round of litigation commenced. The

constitutional validity of the validating Act was challenged before the High Court. The State of Karnataka and the builders defended the validity of the Act. The Karnataka High Court struck down the Act holding it to be constitutionally invalid. The decision of the High Court was challenged before the Supreme Court, which set aside the judgment of the Karnataka High Court and upheld the validity of the Act, on the grounds that the Parliament and State Legislatures have powers to make retrospective legislation. The Supreme Court also held that the intention of the legislature in passing of a particular statute is beyond the pale of judicial review. Another example would be the hundreds of IT firms who are tenants of residential buildings. A survey by the BDA in 2001 of an important zone in the IT corridor, Koramangala, found that IT companies accounted for 70 of 132 violations, in which neither the owner nor the tenant had applied for change in land use all of which violated the rules governing the CDP. In at least one case, Indya.com had usurped BDA property which amounts to encroaching Government land.26 In Subbanna v. State of Karnataka, representatives of Doddabommasandra Jalahalli in Bangalore North sought the courts intervention in striking down the amalgamation of the area as it placed restrictions on the uses to which the land could be put.27 The court


The companies included such leading corporates as Microland, Eindiabiz.com, Future Techno Design, Tata Infotech, Oracle Solutions, Pentasoft, Samsung, Planetasia, Bharti Telesoft, Indya.com and Aztec, all of whom occupied unauthorized structures. Deccan Herald, March 12, 2001. 27 Subbanna v State of Karnataka 1996 (5) Karnataka Law Journal 190 (DB)


however upheld the authority of the revised Development plan, saying that the CDP is an integrated [plan] and either it must exist as a whole or fall through as a whole. It cannot be sub-divided or truncated as it would amount to redrafting of the CDP. The court did admit however, that the state had permitted several BDA schemes (amounting to 7419 acres) housing societies (200 acres) and new industrial uses (610 acres) within the Green belt area, but believed that these developments served a public purpose.28

Degrees of legality: As demonstrated above the illegalities of the urban poor are subject to much more scrutiny and punishment than of others. This leads one to believe that there are varying "'degrees of illegality': as described by Fernandes (1998), and that some forms of illegality tend to be more accepted and/or tolerated than others, by both the state and public opinion. Therefore, we can infer that land tenures could be located along a spectrum of illegality, and, depending on this location, are treated differently. There are several trends that suggest that there is a differential application of law resulting in this degrees of illegality and that the urban poor are inevitably the most vulnerable of the lot. What is also obvious is that this differential application of law has resulted in the urban poor being rendered vulnerable with limited or no tenure security and denied access to basic services like drinking water, electricity, roads, sewage systems, schools, street lights, health services etc. There are 778 slums in Bangalore providing housing to more than 18.5 lakhs of people. Just about half of these slums have been recognized by the Karnataka Slum Clearance Board while the rest, according to the KSCB, do not exist. The provision of even basic services like drinking water, latrines, roads, schools, public health facilities, etc is desperately lacking resulting in sub-standard living conditions of varying degrees in most slums. According to STEM, a research organization, who conducted a survey of 985 slums


Nair, The Reluctant Metropolis ( Forthcoming)


across Karnataka: 30% of the slums do not have access to drinking water 66.3% of the slums do not have latrine facilities 37.3% of the slums do not have drainage facilities 54.5% of the slums do not have proper roads 63.6% of the slums have insufficient street lighting 70.5% of the slums do not have proper garbage disposal facilities 75.4% of the slums have no PHC (public health centers) facilities 34.2% of the slums do not have anganwadis (crches)

There are several reasons for the varying degrees of illegalities including the visibility factor. The tenures of the urban poor are more visual and (and made visible) and hence easily illegitimised; however, most other tenures are couched in secrecy and high-end transactions and hence difficult to illegitimise in the public gaze. This is important to analyze since this necessarily impinges on the status of the tenure security and by implication, for the urban poor, access to basic services. It is our understanding that the crucial factor determining the degree of legality/illegality is the complex web of relationships between the claimants and various institutional (police constables, BESCOM officials and line workers, BWSSB officials and line workers, KSCB officials, BDA, BMP, etc) and other relevant players (real estate agents, developers, NGOs, Panchayats, Municipal Councils, political bigwigs, local goons, etc). These relationships revolve around money exchanges, vote banks, livelihood issues, power equations, influence and connections, etc. Therefore, while for slums, hawkers, lower-end revenue layouts, etc this network of relationships results in howsoever unreliable yet at least sporadic access to basic services and probable desired regularization at some later point in time, for the middle end revenue layout it may mean regularization and legal recognition of the layout. It is at the high-end that the illegalities get ignored or are incorporated into the definition of law itself, as evident in the Jaymahal case.


Legal contradictions: When one accepts that though at the theoretical realm there is only the legal and the illegal, in practice there actually exist varying degrees of illegality/legality. Therefore, even though illegal, the citizens have legal access to access to water, electricity, roads, etc, are registered voters, have managed to get cards, have various individual-based tenure forms like BDA / BMP / KSCB identification cards, etc. This represents a movement towards further tenure security and legal recognition. This also blurs the line between legal and illegal since one witnesses tenure forms that are located somewhere in between. This sets up the context of the land settlement systems as being the arena where notions of legality and illegality are contested while claims of citizenship administered. On the other hand, this also establishes a clear conflict between the rights of citizens as guaranteed by the Constitution and International declarations, covenants and regulations, and the denial on the grounds of the citizen illegal status. Again this conflict is almost exclusively devoted to the life-standards of the urban poor since the contest is in their terrain. The other illegalities more often than not, by virtue of revolving around issues other than livelihoods such as profit, accumulation, encroachments, etc do not necessarily provide ground for such a face off between conflicting guarantees and rights.

Claiming the City: Claiming Citizenship Moving beyond the comfortable world of liberal legality, we then need to chart out avenues or entry points through which we can understand this phenomenon of the illegal city. Our argument is that we need to move beyond the abstract spaces of democracy, and move to an understanding of the real ways in which rights are claimed. For instance within the normative world of liberal democracies, there is no doubt for instance that the language of equality and citizenship has great appeal in an abstract manner. In fact the precise power of such abstractions is its ability to conceal the nature of conflicting claims nuanced by complications of class, caste, gender and, in the context of Bangalore, linguistic groups. Once we move beyond the assumption


that the liberal state acting as the guardian of the interests of the citizens (as enshrined in the preamble to the constitution of India: " and to secure to all its citizens: Justice: economic, social and political) to a realistic assessment of the ways in which, in the failure of the state to fulfill its constitutional mandate, people secure for themselves these various citizenship rights. These claims by the urban poor have also found their way into the dominant interpretations of the law by the courts in India. For instance the Supreme court has been forced to respond on a number of occasions to this apparent 'lack' in the developmental and welfare state, when it comes to the question of the provision of the basic citizenship rights for marginalized groups, and this has resulted in a gradual expansion of the scope of Article 21 of the constitution (right to life and personal liberty), where it has read into Article 21 a number of rights recognized in international human rights documents related for instance to the right to housing, health, water etc. There still remains however the gap between the judicial authorship of human rights, and their translation in the context of the urban everyday. These claims have also found their way into international declarations and covenants recognizing their claims to the city and their rights to particular standards of living. For us , it is not at the constitutional level alone that conflicts of citizenship are resolved, and we need to read the city as the predominant site for the claiming and contestation of citizenship rights, which have in recent times, served as an important metaphor through which we can attempt to understand the illegal city. Appadurai writes for instance that "the great turmoil of citizenship in cities derives in large measure from new concentrated of wealth and misery among nationals related to industrialization. Where the shanties of migrants sprout next to the mansions, factories and sky scrapers of industrial state capitalism, new kinds of citizens engage in strugglers over the nature belonging in national society. Such struggles are particularly evident in the fight of the urban poor for rights to the city. They are especially associated with the emergence of democracy because they empower poor citizens to mobilize around the redistributive right claims of citizenship. These movements are new not only because they force the state to respond to new social conditions of the working poor- in which sense they are, indeed, one of the significant consequences of massive urban poverty for citizenship. They are also unprecedented in many cases because they create new kinds of rights outside of the normative and institutional definitions of the state and its legal codes. These rights generally address 54

the new and collective spaces of the modern metropolis, especially its impoverished residential neighborhoods. They affirm access to housing, sanitation, health, property, education, child care and so forth on the basis of citizenship. In this assertion they expand the scope and understanding of entitlement. In this sense the growth of the economy itself fuels the growth of citizenship as new areas of social and economic life itself are brought under the calculus of rights" This sharp polarity between the legal and the illegal city, the planned and the unplanned portions of the city are clearly symptomatic of the larger class conflicts that exists in many post colonial societies, rapidly moving towards a globalized world. The era of globalization inaugurates a new dynamic of inequality that challenges the basis of the earlier common allegiances. The two cities with its respective citizens and denizens, creating their own entry points into the global tends to its own promotion, "delegitimizing if not criminalizing the other". This rapid acceleration into the global, seen in a city like Bangalore, also has its antecedent problems of legal restructuring, which adds another dimension into the already divided city. To be 'investment friendly' there are a number of laws which need to be amended to suit the requirements of flexible production and accumulation. The fact that you are competing with other cities within the country such as Chennai, Delhi and Hyderabad does not help in any manner. In a city like Bangalore this has been best seen in terms of the various incentives and benefits provided to the IT sector, by ways of tax breaks, cheap land, infrastructure development etc and at the same time there is a parallel move towards ensuring that this image of the clean and green Bangalore is not affected by rag pickers, squatters, hawkers etc. Thus even as the translocation of the city generates new legal regimes, it also propagates new and diverse forms of illegality. This "unstable mixture of the legal and the illegal, and of various forms of each, turns the city into a honeycomb of jurisdictions in which there are in effect as many kinds of citizens as there are kinds of law. Such multiplicity delegitimizes the national justice system and its framework of uniform law, both hallmarks of citizenship. Although we have seen this urban multiplicity can spawn new and more democratic forms of citizenship, it also suggests the emergence of an almost medieval body of overlapping, heterogeneous, non-uniform, and increasingly private memberships". 55

If we were given the difficult task of posing a central question in the current study, it would be about the often unquestioned normative assumptions of the planning process itself. The idea that through the planning process, one can attain the common good for all the people is clearly a myth that fails to take cognizance of the varied political, economic and social interest that inform the ideology of planning. This process of assuming the common good necessarily involves policy choices that create a fragmented idea of public interest, split on the lines of the deserving citizen and the not quite citizens. Our task in a sense has been to pose the question of what happens to people who fall off official maps, and how do they find their ways in the increasingly complex landscape of the global, the national and the local.


Decentralization Illusions
- clifton d rozario

Background: Cities grow. There is a sense of inevitability about this in all minds. Those who have lived in Bangalore for sometime would affirm that, in the recent past, its spatial growth has rapidly brought in its fold areas that were considered beyond its boundaries as commonly perceived. This has been the case with areas such as Peenya, Nelamangala, Yelahanka, Nagarbavi, Kengeri, Dasarahalli, Whitefield, Bommanahalli, Hebbal, Marathalli, etc. This physical expansion of Bangalore is obviously one of the most tangible offsets of its rapid pace of growth. With the States concentrated emphasis on Bangalores development and promotion as an ideal city (being known as the garden city, pensioners paradise, etc), came of the influx of professionals along with migration of cheap labour all in search of work. This could not be accommodated within its existing boundaries resulting in the outward movement of its elastic boundary. During the past many decades, spatial planning of Bangalore has been a very top down process with the Bangalore Development Authority (BDA) being the monopoly in the preparation of comprehensive development plans for Bangalore. The spatial growth and the zonal regulations have all been decided without involving the local bodies which will be directly affected in the event of such planned growth. However, now, it is constitutionally mandatory that such a process be amended suitably to factor in the role of the local self governance authorities not just as spectators but as active participants having powers to affect the planning process. The 90s; the period which witnessed the period of most rapid spatial growth of Bangalore, also saw the crucial 73rd and 74th amendments to the Constitution according constitutional status to the Panchayats and the Municipals Corporations. The spirits of these amendments were to enforce decentralization and development planning through local governance. However, despite the implementation of these amendments through consequent state legislations, in the context of Bangalores rapid

urbanization, what we are witness to is the further concentration of development planning and de-facto governance (of areas coming under the Panchayat and Municipal Council jurisdiction) with the Urban bodies such as the BDA and parastatal bodies like the Karnataka Industrial Areas Development Board (KIADB). This raises questions regarding the right of the local bodies to be party in the planning of development in the areas under their jurisdiction. What is also brought to fore is the lack of participation of the local bodies and their mandate in development planning in their areas. What is evident is the undermining of the decision-making and participatory powers of the local bodies by the high-level government authorities. More recently we have witnessed the promotion of Bangalore as the Information Technology (IT) capital of India, Indias Singapore, etc. This has resulted in further influx and greater pressure on the existing city to yet again expand and provide all necessary services to the IT companies. To this extent we have seen the setting up of the construction of new roads, ring roads, flyovers, Electronic city, ITPL, etc. The State has also envisaged projects on the peripheral areas such as the Devanahalli International Airport, Arkavathy Layout (BDA), Hi-tech city and link road between Hosur and Sarjapur (BDA), Bangalore Mysore Infrastructure Corridor (BMIC) and the IT Corridor among others. Obviously the physical expansion of the city is inevitable and indeed on the fast track now. It is obvious that the growth of the city, at all points, has meant the erasure of rural spaces and the associated impacts social, cultural and economic on the village communities. More often than not, the result has been devastating on the communities especially the landless laborers, small entrepreneurs and local artisans. It is a matter of fact that the physical expansion of the city neither whether caused by the State nor by private developers interested in quick profits from housing ventures, resorts, etc is detached from any concern for the needs and rights of the affected rural communities nor is there any participatory process initiated in either planning or implementation. While this process obviously gives rise to critical questions regarding citizenship and democracy, it also brings to fore the abject neglect of these communities and their fundamental rights.


Therefore, there is a definite need to engage with the above emerging issues and engage with procedures and processes of urban planning and the role of the Bangalore Development Authority, Bangalore Mahanagara Palike (BMP), Karnataka Industrial Areas Development Board, Panchayats, Municipalities, Bangalore Agenda Task Force, Bangalore Metropolitan Region Development Act (BMRDA), and other relevant authorities.

Constitutional and Legal Framework: Constitutional Framework The 73rd and 74th Constitutional Amendments Acts were introduced in the early 1990's in a bid to achieve democratic decentralization and provide constitutional endorsement of local self governance authorities. These amendments confer authority on legislatures of States to endow respectively Panchayats and Municipalities with such powers and functions as may be necessary to enable them to act as institutions of self government. For the purpose, the Panchayats and Municipalities have been charged with the responsibility of preparing and implementing plans for economic development and social justice including those in relation to matters listed in the Eleventh and Twelfth Schedules of the Constitution. The central objective of these amendments is the decentralization of planning and decision making procedures. It also has the implicit intention of removing centralized notions of control and monopoly over development of resources.

Panchayats Article 243G provides that, subject to the provisions of the Constitution, the legislature of any State may, by law, endow the Panchayats, with such powers and authority as may be necessary to enable them to function as institutions of selfgovernment and such law may contain provisions for the devolution of powers and responsibilities upon Panchayat at the appropriate level.

Municipalities Articles 243W provides that, subject to the provisions of the Constitution, the legislature of any State may, by law, endow the Municipalities, with such powers and


authority as may be necessary to enable them to function as institutions of selfgovernment and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities respectively at the appropriate level.

Powers and Functions The Panchayats have been entrusted with the implementation of schemes for economic development and social justice including those in relation to the matters listed in the Eleventh schedule. The Municipalities have been entrusted with the implementation of schemes for economic development and social justice including those in relation to the matters listed in the Twelfth schedule. These being, among others, Urban Planning and town planning Regulation of land-use and construction of buildings Planning for social and economic development Slum improvement and up gradation Provision of urban amenities and facilities such as parks, gardens, playgrounds Public amenities including street lighting, parking lots, bus stops and public conveniences. Article 243ZD provides for the creation of a district level planning committee for the preparation of the District Development Plan. The District Planning Committee has been placed with the powers to prepare a draft district development plan to consolidate the plans prepared by the panchayats and municipalities, having regard to matters of common interest including spatial planning, sharing of water and other natural and physical resources, the integrated development of infrastructure and environmental considerations. Further, the district development plans should be prepared to consolidate the plans prepared by the panchayat and municipalities. Article 243ZE provides that for metropolitan areas, a metropolitan Planning Committee shall be elected by and from amongst the elected members of the municipalities and chairpersons of the panchayats within the metropolitan area in proportion to the ratio between the population of the municipalities and panchayats in the metropolitan areas having the same mandate as mentioned above for the district planning committee.


Article 243N and Article 243ZF provides that, any provision of any law relating to Panchayats and Municipalities respectively, in force at the time of the of the amendments, which are inconsistent with the provisions of this amendment, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until one year from such commencement, whichever is earlier.

Legal Framework: Local Government Karnataka Panchayati Raj Act, 1993 Section 58 (1) of the Act offers that the Gram Panchayat shall perform the various functions, including, Preparation annual plans for the development of the Panchayat area Preparation of annual budget Promotion and development of agriculture and horticulture Development and maintenance of grazing lands and preventing their unauthorized alienation and use Promotion of rural and cottage industries Distribution of house sites within Gramthana limits

According to Section 309 of the Karnataka Panchayati Raj Act, 1993, the Gram panchayat, Taluk panchayat and Zilla panchayat are empowered to prepare yearly development plans. The Zilla panchayat would forward the development plan for the district to the District Planning Committee. Section 310 provides for the constitution of the District Planning Committee.

Karnataka Municipal Corporations Act, 1976 Post the 74th amendment the government of Karnataka introduced amendments to the above mentioned Act inserting Section 503A and 503B. While Section 503B provides for the constitution of Metropolitan Planning Committee for metropolitan areas, Section 503A provides for the preparation of the development plan every year by


every corporation and forwarding of the same to the Metropolitan Planning Committee or the District Planning Committee as the case may be. Karnataka Municipalities Act, 1964 Through similar amendments to the Karnataka Municipalities Act, 1964 Section 302A has been inserted in the Act that provides for the preparation of yearly development plans by every Municipal Council to be submitted to the Metropolitan Planning Committee or the District Planning Committee as the case may be. The municipalities have been entrusted with the powers and responsibilities in most matters relating to entries 2 to 18 in the Twelfth schedule except in relation to the first entry urban planning including town planning.

Planning Karnataka Town and Country Planning Act, 1961 Urban planning in Bangalore is largely governed by the Karnataka Town and Country Planning Act, 1961. The Karnataka Town and Country Planning Act aims to provide for the regulation of land use development and for the making and execution of town planning schemes in the State of Karnataka. In order to insure that town-planning schemes are made in a proper manner and their execution is made effective, the Act provides for declaration of local planning areas and a local authority to prepare a development plan for the entire local planning area falling within its jurisdiction. The Bangalore Development Authority is the Planning Authority for the local planning area comprising the city of Bangalore. Every Planning Authority is a body corporate having perpetual succession on a common seal having power to acquire hold and dispose property, enter into contracts and sue and be sued in its own name. The extent of the Local Planning Area of Bangalore comprises the Bangalore city and the surrounding Towns and Villages as listed in Notification No. HDP 496 TTP 83(1) dated 06-04-1984. The Karnataka Town and Country Planning Act mandates every Planning Authority to prepare an Outline Development Plan and a Comprehensive Development Plan for the area falling under its jurisdiction. The Outline Development Plan generally 62

indicates the manner in which the Development and Improvement of the entire Planning Area is to be carried out and regulated. Every land use and change in land in the development of the Planning Area is to thereafter conform to the Outline Development Plan. Any change in the local use can be made only with written premises of the Planning Authority. With in a period of three years from the date of the Publication of Outline Development Plan, the Planning Authority prepares a Comprehensive Development Plan. The Comprehensive Development Plan consists of a series of Maps and Documents which indicate the manner in which the Development and Improvement of the entire Planning Area is to be carried out and regulated. Once the Comprehensive Development Plan and the report are finally approved, they are published by the Planning Authority. On publication, the Comprehensive Development Plan supersedes the Outline Development Plan. The Comprehensive Development Plan is to be revised at least once in ten years after coming in to force. The Karnataka Government under GO No. HUD 139 MNJ 94 dated 5thJanuary, 1995 has passed the zoning of land use and regulations.

Statutory Authorities / Corporations Bangalore Development Authority Act, 1976 The Bangalore Development Authority (which is the Planning Authority for the Bangalore Metropolitan Area) is a body corporate having perpetual succession on a common seal with power to acquire hold and dispose property, enter into contracts and sue and be sued in its own name. The objects of the Bangalore Development Authority are to promote and secure the Development of the Bangalore Metropolitan Area comprising the city of Bangalore and other areas adjacent to it as the Government may notify. For the purpose of development of the Bangalore Metropolitan Area, the BDA has the power to acquire, hold, manage and dispose of movable and immovable property, to carryout building, engineering and other operations and generally to do all things necessary or expedient for the purpose of Development. The Bangalore Development Authority has the authority to draw up detailed development schemes. The Bangalore Development Authority is also


empowered to levy a tax on lands or buildings or both situated within its jurisdiction at the same rate at which the Corporation levies taxes within its jurisdiction. The Bangalore Development Authority came into existence in 1976 as a successor to the erstwhile City Improvement Trust Board (CITB). In the 1960s and 1970s, the erstwhile City Improvement Trust Board (CITB) created several new planned layouts including the Jayanagar layout, etc. The CITB distributed about 64,656 sites between 1945 and 1976, and the BDA distributed about 63,062 sites between 1976 and 1988,29 and a total of 71, 483 by 1991. According to official sources, the BDA, since its inception, it has allotted about 107389 sites. The year-wise break-up is: Year 1976-77 1977-78 1978-79 1979-80 1981-82 1982-83 1983-84 1984-85 1985-86 1986-87 1987-88 1988-89 1989-90 Sites allotted 12,270 10,764 4,050 450 703 2,000 1,403 5,836 1,834 2,612 1,6485 4,655 Year 1990-91 1991-92 1992-93 1993-94 1994-95 1995-96 1996-97 1997-98 1998-99 1999-2000 2000-01 2001-02 2002-03 Sites allotted 625 625 625 1,521 1,581 1,350 8,000 15,000 15,000

The delivery on the part of the BDA kept on waning until the late 1980s coming to a near standstill between 1991 and 1999. In fact about 40,000 plots have been developed by the BDA since 1991; however 80% of the plots have been produced in the last 3 years. Though there is no official data on the number of allotted plots that lie vacant a conservative estimate would be about 15% including quite a large percentage of the plots that have been allotted in the past year or so lie vacant as well.

Comprehensive Development Plan (Revised) Bangalore Report, Vol. I and II, (Bangalore, 1995)


Presently the BDA has just completed development of the Anjanapura layout and the Visheswaraiah layout and is in the process of acquiring 3300 acres of land in 16 villages in Byatarayanpura Municipal Corporation for the formation of the Arkavathy layout. It has further notified the acquisition of 1522 acres for the formation of HiTech City and road between Sarjapur Road and Hosur Road. The notified lands fall under the jurisdiction of about 12 villages30. The Karnataka Housing Board built 5506 houses in Yelahanka, and 15,000 on the outskirts.31 The KHB has 4000 vacant houses and apartments across the State, mostly in Kengeri and Yelahanka. Presently, the KHB is tying up with HUDCO as a joint partner for a mssive housing and sites project on 275 acres at Iglur Banahalli on the periphery of Bangalore.32 The Karnataka Slum Clearance Board built a mere 2125 houses until 1989.33 Overall in Karnataka, the KSCB, between 1975 and March 2002, has constructed 28496 houses in Karnataka.34

Karnataka Industrial Areas Development Act, 1966 The Karnataka Industrial Areas development Board (KIADB) was set up under the Karnataka Industrial Areas Development Act (KIAD ACT ) of 1966 for the speedy development of Industry in Karnataka by acquiring land and forming industrial areas complete with all infrastructure facilities like roads, water, power, communication etc. KIADB acquires land and forms Industrial Areas with all infrastructure facilities including roads, water and power. The Board also acquires land in favor of Single Unit Complexes and public sector organizations. Since its inception, the KIADB has acquired nearly 57,000 acres of land all over Karnataka. It has developed 93 industrial areas over approximately 27,500 acres, while the remaining land has been given to single unit complexes. Details of Industrial Areas 31.01.2003:35

30 31

Real Estate Reporter, September 2003 edition. Nair, The Reluctant Metropolis (forthcoming) 32 Hindu, Bangalore edition dated 2nd December 2003 33 Nair, The Reluctant Metropolis (forthcoming) 34 KSCB Annual Report for the year 2001-2002 35 According to data from the KIADB office and its 2002 booklet titled Preparing the ground for Karnatakas growth.


Area Acquired 29112.76

Area Developed 27547.25

Allotted Area 16062.18 Units 9444

Vacant area 6826.49

In Bangalore the KIADB has acquired about 8493 acres of which it has developed about 8314 acres for the formation of 19 industrial areas. Of this about 6016 acres has been allotted to 2684 industrial units. Presently the KIADB is involved in the formation of Electronic City Phase III (113 acres), Export Oriented Industrial Zone (EOIZ)/EPIP I and II Phase (540 acres), Devanahalli International Airport (about 4276 acres) and IT Corridor (overall 18,290 acres36 though till now about 700 acres have been notified). There is also information that the KIADB is proposing a self-contained residential township near Electronic City over 750 acres of land. Bangalore Metropolitan Region Development Act As the State Government felt that there is no proper coordination among the local bodies likes the Bangalore Development Authority, the Bangalore Water Supply and Sewerage Board, the Karnataka Electricity Board, and the Corporation etc. within the Bangalore Metropolitan Area. It decided to set up the Bangalore Metropolitan Region Development Authority under a separate legislation. The Bangalore Metropolitan Region Development Authority is set up for the purpose of Planning, coordinating and supervising the proper and orderly development of the area falling within the Bangalore Metropolitan Region. Consequent of the setting up of the Bangalore Metropolitan Region Development Authority all development within the Bangalore Metropolitan Region is to be carried out only with the expresses permission of the Bangalore Metropolitan Region Development Authority. Further, even the local authorities empowered to grand permission for any development within the Bangalore Metropolitan Region can do so only after the Bangalore Metropolitan Region Development Authority grants permission for such developments. The Bangalore Metropolitan Region Development

According to the report titled IT Corridor Bangalore Structure Plan Final Report prepared for and submitted to the Government of Karnataka in January 2003 by Jurong Consultants (Singapore).


Authority is also empowered to carry out Development plans and schemes formulated by it and further, is also empowered to issue directions to the Bangalore City Corporation, the Bangalore Development Authority, the Bangalore Water Supply and Sewerage Board, the Karnataka Electricity Board and the other bodies connected with the development activities within the Bangalore Metropolitan Region.

Land Law Land Acquisition Act, 1894 The LAA was primarily used by the state to acquire land for large development projects such as dams, mills etc. The ability of the state to acquire land for such projects arose from the doctrine of Eminent Domain. The only restriction placed upon the acquisition process was that the project for which the land was being acquired should have been for some public purpose. Karnataka Land Revenue Act, 1964 The main purpose of the Act is to create a comprehensive/ consolidated law on land and land revenue administration in Karnataka. Provisions under the Act cover the following areas broadly the powers and functions of revenue officers- divisional commissioners, deputy commissioners, tahsildars etc., the procedures to be followed by revenue officers- in enquiring into cases (quasi judicial authority), functioning of the Revenue Appellate Tribunal, use of land for public purposes, conversion of land from agricultural land to use for other purposes, collection of land revenue, revenue survey, grants of land, Etc More specific provisions of the Act deal with the notifications regarding the creation of the Green Belt avoid the haphazard growth of village limits and the conversion of agricultural land for purposes other than agriculture. However, section 95 (3B) clearly states that no permission for conversion of agricultural lands lying the Green Belt Area should be given for any other purpose.


Core Problem: The conflict that appears to emerge is between the bodies of local self governance and the statutory authorities, and it revolves around the core issue relating to control over land and its planning. The Constitution has clearly laid down the norms and procedures for facilitating the decentralization of policy and decision making and the shift to local self governance bodies on various levels. These are in regard to the powers, functions and responsibilities that need to be devolved to increase the capacity of the bodies of selfgovernance. Within this lies the process of bolstering of capacities of the local self bodies to plan the annual development of their regions. At another level it was imperative that the State analyzed the existing laws and legislations and brought in the necessary amendments to make these laws in consonance with the constitutional amendments. One would imagine that such clear directives in the Constitution provide an unambiguous account on the intentions, procedure and scope of devolution of powers to the local governance bodies. However, despite this the State governments have played truant in the application of these decentralization processes on the most important fronts. The incomplete devolution of powers has resulted in a rather murky situation where there is much ambiguity regarding the mandate of the constitutionally endorsed panchayats, municipalities and district / metropolitan planning committees. Resultantly, on the planning front it is seen that the State is still pursuing the policy of envisaging and implementing projects in a centralized manner with no participation of the local bodies of self-governance. These projects include the International Airport, Arkavathy Layout (BDA), Bangalore Mysore Infrastructure Corridor (BMIC), IT Corridor, etc. All this, while the local bodies are even denied the power to sanction simple housing projects or introduce any other developmental projects. This is a direct result of the apparent failure on the part of the government of withholding devolution the control over revenue land and its usage.


Further, the introduction of the 73rd and 74th amendments bestowed certain powers on the local governance bodies that were hitherto held by other para-statal authorities. This sets the context for the conflicts arising out of overlapping provisions in different Acts and their statutory agencies, with specific regard to revenue land control, regulation, usage, management and collection of revenue. i.e. at the level of the authorities, a direct conflict between the Panchayats / Municipalities and various authorities such as the BDA, KIADB, BMRDA, Revenue Department, etc, and at another level, the conflicts and contradictions in overlapping provisions of the Constitution and various Acts such as the Karnataka Panchayati Raj Act, Karnataka Municipal Corporations Act, Karnataka Municipalities Act, Land Acquisition Act, Karnataka Industrial Areas Development Act, Karnataka Land Revenue Act, Bangalore Metropolitan Regional Development Authority Act, BDA Act, Karnataka Town and Country Planning Act, etc. As seen from above there is a direct conflict over the authority placed with the necessary legal sanction to plan for areas that fall in the jurisdiction of the Panchayats and Municipalities. There are various situations of conflict that emerge ranging from the conflict between authorities placed with similar mandates such as the BDA and the City Municipal Councils, to conflicts between the authorities such as the KIADB and the Panchayats / City Municipal Councils regarding their mandate itself. This throws up several rather critical issues pertaining to the mandate, powers and functions of these committees besides the crucial question as to who should prepare the development plan of a Metropolitan area like Bangalore. Do the panchayats and the municipalities have the powers to evolve development plans affecting revenue land-use change in their jurisdiction or not? Should the Metropolitan Planning Committee have its own planning department or should the Town Planning directorate help the Metropolitan Planning Committee? What should be the relationship between the various statutory organizations such as the Karnataka Industrial Areas Development Board,


Bangalore Development Authority, etc and the Metropolitan Planning Committee? Are the development plans initiated by the BDA / KIADB in the areas coming under the jurisdiction of the Panchayats / Municipalities unconstitutional and infringing on the jurisdiction rights of these local selfgovernance bodies? What are the powers of these organizations in areas that fall within the jurisdiction of the Metropolitan Planning Committee, that is, the panchayats and the municipal councils? Has the existence of the Bangalore Metropolitan Regional Development Authority (BMRDA) that was constituted for preparation of Regional Development Plans become unnecessary after the constitution of the Metropolitan Planning Committee? Same goes for the Bangalore Development Authority and other such authorities. These issues have to be resolved immediately conscious of the constitutional necessity to maintain the autonomy of the local bodies and their powers in decision making. Therefore, the conceptual issues that emerge for being resolved are: 1. Constitutional status of local government. 2. Relationship between local / state / central government. 3. Local government as a democratic institution of self government. These issues have been raised from time to time and the state government is very evident of the same. To quote from the report of the Committee on Urban Management of Bangalore City37; The Constitutional Amendment envisages that the municipalities may be endowed with such powers and authority as may be necessary to enable them to function as institutions of self-Government and such law may contain provision for devolution of powers and responsibilities upon Municipalities. The Constitution has empowered the State Legislature to determine the functions, resources and structure of the municipal bodies. It must be pointed out that the

The Committee was set up under the chairmanship of Shri Ravindra, the then Commissioner of Bangalore City Corporation, as per order no. UDD 35 BMR 97, dated 11th April 1997. The report was submitted to the state government in November 1997.


conforming legislation in Karnataka, as elsewhere, has remained largely incompleteAs a result the objective of decentralization envisaged in the Constitutional Amendment are yet to be fulfilled.


Silicon Myths
- clifton d rozario Any election result is necessarily a product of various immediately local and broadly regional factors with the possibility of neither having any national significance whatsoever. This being so, there have also been instances where a nation voted almost en bloc expressing its opinion on a particular issue such as the post emergency elections. However, the emergence of regional political outfits on caste, ethnicity and religious lines have been instrumental in institutionalizing a particular local-national political dynamics that posits locally relevant issues, as relevant as national level issues. This is the background against which one can understand the loss of the Congress in Karnataka. Election analysts have stated that the main reasons for the Congress loss in Karnataka were the neglect of backwards, minorities, adivasis and dalits, poor drought management and the indecisive and callous approach to the consequent farmer suicides (more than 1000). Another important reason put forth for the Congress debacle is the disproportionate emphasis on IT and Bangalore, in contrast to the abject disregard of issues pertaining to rural and urban poor.However one needs to get beyond just merely asserting that the Congress lost because of disproportionate empshasis on IT and look into the reasons why IT became the proverbial jewel in Karnatakas crown. This paper seeks to embark on a preliminary engagement with this aspect. the mythical vision of information technology 38 Policies have always been unfolding within the larger fabric of models of development, mirroring transitions in social, cultural and economic relations. And in the era of globalization and rapid urbanization, an obviously believer the Krishna

Most of the 1.85 lakh people employed in in IT services and outsourcing in Karnataka are in Bangalore, the city where largest number of jobs were lost in the industrial sector (more than 3 lakhs). While the average earnings are pretty high, compare this with the earnings of pourakarmikas, those who keep the city clean, earn between 1000 and 1500 per month, or the lakhs of migrants streaming into cities and working for anything between Rs. 20 to Rs 80 / day. The low value ITES (call centres, medical transcription, BPOs) are growing at twice the speed of software exports.

government, saw that it is not the nation (read State) but the city which is to be seen as the circuit through which flows of capital and service occur. There can be little doubt in such an assertion considering that in the past few years, Bangalore, while becoming the focal point, has attained almost a mythical status as the silicon valley, besides emerging as one of the important nodes for the global flow of services, serving as the back end service provider of many corporations across the world. In fact, during this time, one has seen a significant transformation of Bangalore, with it becoming a global city working in virtual time providing IT enabled services with the active participation of the State government. To the globalizing elite, developments in Bangalore, erase the image of India as a land of poverty, and reconstruct India as an IT superpower. IT then becomes the carrier of multiple social and developmental visions with promises of large-scale employment generation besides contributing to GDP. However, even beyond this the vision was of IT as the apparent instrument of intervention in governance and administration, to propel larger ideals of social equality and eradication of poverty and unemployment. If dams were the most important symbols of post colonial Indias entry into the modern, the IT industry has emerged as the most important symbol of Indias entry into the global or into the new modernity marked by the pre-eminent position given to knowledge based services. however Co-existing parallel with this vision of Bangalore as Singapore and the trajectory to this vision, is a city mirroring the silent but steady growth of local economies and ignored rural agrarain economcies, lacking the infrastructural provisions and state backing which IT enjoys. This city has at its core the unorganized and unplanned growth of the city, both economically and spatially. It is here that the urban poor comprising a quarter of the city reside and carry out trade in conditions that make a decent living standard unattainable. Further away from the centrality of Bangalore are the smaller towns and villages of Karnataka which just slipped out of focus as the Government embarked on its IT Bangalore centric policies and practices. It is in this larger context of globalization that one needs to evaluate the results of the recent elections. A further point to note would be the present emphasis and great 73

stress by the State government to promote Bangalore as the desired destination for IT companies. One of the biggest carrots being dangled is the availability of land, subsidies and guaranteed infrastructural services. divided city On assuming office, one of the initial decisions made by the Krishna government was to make the development of Bangalore a priority issue. With this in mind the Bangalore Agenda task Force (BATF)39 was set up. Its formation is seen as one of the most symbolic gestures of the government indicating that IT was the way forward and moreover, that the IT corporate houses would have more than a passive influence on policy decisions by actively participating as policy formulators. Again when located in the era of globalization, this private public partnership that was nurtured represented a shift away from direct societal interventions (the welfare state with social obligations) to notions of governance (administrative state with market compulsions). In fact the proposal of the IT Corridor in Bangalore only symbolizes the seriousness of the thrust being given to the IT industry and the role it played. Stretching from Electronic city in the south to Old Madras road to the ITPL in the North east, covering a curvilinear stretch of 25 km in length and 7.5 km in width and covering an area of about 138.6 sq. km, the IT Corridor is envisaged to become "selfcontained" with work, living, shopping, civic amenities, educational institutions, healthcare and leisure. To quote from the report: The vision for the IT Corridor is to provide a showcase environment for IT professionals to live, work, play and strike business deals.40 However, this vision of the new global city (situated unlike the rest of Karnataka) has to jostle, economically, culturally, legally and most importantly electorally, with the older networks of interests and claims upon the city and the State. Therefore, without doubt, any attempt at formalizing the new vision of Bangalore necessarily had to contend with the various contestations and contradictions that competing models of development and interests raise.

The author wishes to state that the existence of the BATF has no constitutional basis whatsoever. In fact one serious issue is its power, thanks to S.M. Krishna, to ride roughshod over the elected bodies such as the Municipal Corporation. 40 According to the report titled IT Corridor Bangalore Structure Plan Final Report prepared for and submitted to the Government of Karnataka in January 2003 by Jurong Consultants (Singapore).


BATF and clean bangalore campaign The Bangalore Summit in 2000 represented a new stage in the public life of the city, bringing the private sector to the foreground in a city which has long been envisaged and promoted as the public sector city par excellence. Shedding its more timid presence in a city, where the state has long been the prime mover, the new corporate culture attributes the citys problems to inefficient management while envisaging realizable plans that made a Singapore possible. This is a fresh attempt at moving to center stage the economic and technological aspects of planning which may be at odds with social, community and ecological uses of city land. In its words, BATF was formed in 2000 with the desire to showcase Bangalore as the gate way to class one cities of the country and strengthen its position as an engine for Karnataka's robust growth. Without doubt it was S M Krishna who was the visionary behind the formation of the BATF as he believed that corporates did have a responsibility and a larger role to play in urban governance through a more proactive approach, through intellectual sharing and a best practices and efficient, transparent management approach, bringing in shared accountability. Thus, with Nandan Nilenkani (Managing Director and CEO of Infosys) as Chairman, BATF was formed.41The Bangalore Agenda is meant to be a partnership between the citizens, corporates and the administrative agencies the Bangalore Mahanagara Palike (city corporation), Bangalore Development Authority (urban development), Bangalore Metropolitan Transport Corporation (transport), Bangalore Water Supply & Sewerage Board (water and sewerage), Bangalore Electric Ssupply Company (power), Bangalore Sanchar Nigam Limited (telecommunications), and Police. BATF has tried to bring together the key players comprising a "Private Public Partnership" (PPP) to enable synergy of effort and visibility of result.


The other members of BATF are, Naresh Malhotra (Senior Partner at KPMG's Bangalore office), Samuel Paul (Public Affairs Centre), Raja Ramanna (one of India's foremost scientists and Chairman of the Governing Council of the Indian Institute of Science), H. Narasimhaiah (President National College Hostel), Naresh Venkataraman (Partner and Design Principal in Venkataraman Associates), Ashok Dalwai (IAS officer), V. Ravichandar (Feedback Marketing Services), M. K. Ramachandra (President, The Greater Mysore Chamber of Industry), Ramesh Ramanathan (Ramanathan Capital and Janaagraha), Bijoy Kumar Das (IAS), I. Zachariah ( Principal Architect Zachariah Consultants) and Kalpana Kar (former Tata Administrative Services executive).


Though the claim of the BATF was to cater to the needs of all classes of society, its work has proven otherwise. The gap between the lip-service paid to the upholding interests of urban poor and its projects are way too wide to bridge. For the sake of the article we choose to focus on one such project called Swachha Bangalore (Clean Bangalore), an initiative in the area of Solid Waste Management (SWM). While the BATF concerned itself with municipal solid waste collection, its transportation, disposal and processing it did not bother itself with the concerns of the pourakarmikas (contract street sweepers). There are about 10,000 pourakarmikas sweeping the streets and cleaning the garbage dumps in Bangalore receving a meager pay of between Rs 1000 and 1500. They are not assured any guaranteed wages though the minimum wage is fixed at Rs. 1800, no job security and horrible working conditions. In a recent survey carried out by the Bangalore Municipal Corporation and Jayadeva Institute of Cardiology, more than 80% pourakarmikas have been diagnosed with some ailment or the other primarily diabetes, high blood pressure and heart related illnesses. According to reports their unhygienic working conditions is the root cause of their deteriorating health. However, the BATF is only interested in a Clean Bangalore notwithstanding the adverse poverty and deteriorating health conditions of the pourakarmikas. The role of the BATF in ensuring ITs hegemony in Bangalore is also exemplified by the IT Corridor. Even though the project in its entirety is yet to be implemented the Karnataka Industrial Areas Development Board (KIADB)42 placed with the responsibility of acquiring land for the project formed a Think Tank of which BATF member Ravichander is a part. Not surprisingly not a single elected member finds place in these decision making bodies. More importantly, the villages whose agricultural lands are acquired for the IT Corridor have no say whatsover in this process and their stiff opposition to the arbitrary acquisitions have been ignored by all concerned authorities. IT and slums

The Karnataka Industrial Areas development Board (KIADB) was set up under the Karnataka Industrial Areas Development Act (KIAD ACT ) of 1966 for the speedy development of Industry in Karnataka by acquiring land and forming industrial areas complete with all infrastructure facilities like roads, water, power, communication etc.


The emphasis that the government bestowed on the IT sector almost blinded it to the other compelling crisis of urban poverty. In fact while the government concentrated on IT a major part of the city was ignored despite their repeated demands for tenure security and access to basic amenities and services. There are 778 slums in Bangalore providing housing to more than 18.5 lakhs of people. Just about half of these slums have been recognized by the Karnataka Slum Clearance Board (KSCB) while the rest, according to the KSCB, do not exist. The provision of even basic services like drinking water, latrines, roads, schools, public health facilities, etc is desperately lacking resulting in sub-standard living conditions of varying degrees in most slums. According to STEM, a research organization, who conducted a survey of 985 slums across Karnataka43: 30% of the slums do not have access to drinking water 66.3% of the slums do not have latrine facilities 37.3% of the slums do not have drainage facilities 54.5% of the slums do not have proper roads 63.6% of the slums have insufficient street lighting 70.5% of the slums do not have proper garbage disposal facilities 75.4% of the slums have no PHC (public health centers) facilities 34.2% of the slums do not have anganwadis (crches)

Contrast this with the response of the Krishna government to the acrimonious remarks made by Azim Premji about the conditions of roads leading up to Wipro and the sorry state of power infrastructure. Initially reacting strongly to Premjis remarks, SM Krishna is report to have stated that "It is not only the IT sector that has a 24/7/365 schedule, however, after three days Krishna formed a task force chief secretary B S Patil to improve infrastructure on Bangalore-Sarjapur road where the company is located to initiate remedial measures to improve the infrastructure, including easy flow of traffic and supply of regular power in the area! beyond bangalore


It is said that there are more than 4500 slums in Karnataka.


One of the chief objectives of the Millennium IT Policy of 2002 is to utilize the power of Information Technology in the overall goal of the Government of Karnataka in eradicating poverty and empowering women. In rural areas a concern with land reforms has given way to visions of a vague idea of social empowerment facilitated through technological revolution. One such project of the government geared towards showcasing this noble intention is the Bhoomi project. Through this project the government has completed computerizing 20 million records of land ownership of 6.7 million farmers in the state. The apparent reason for this project was to overcome the delays and harassment faced by farmers from the Village Accountants to get a copy of the Record of Rights, Tenancy and Crops (RTC). Today, for a fee of Rs.15, a printed copy of the RTC can be obtained online at computerized land record kiosks (Bhoomi centers) in taluk offices. There are several contentitious issues that emerge in the context of Bhoomi pertaining to the rationale behind its formulation, appropriateness and sustainability. However, that is not the focus of this article so we will let it rest. The point to be noted is the influence and role of IT in facilitating the ideological shift in the name of governance and transparency. While the earlier policies of the State around land focused on land reforms and attempts at land redistribution and rural reconstruction as a means of ensuring social justice, the focus over the past few years, paralleling the movement of Karnataka to the forefront of the IT, has been on technological transformations and governance. This is a manifestation of a deep ideological shift from the social relevance of land reforms to the more administrative technological revolution of land records. That the land reforms process faced stiff opposition from the landed classes and castes for obvious reasons is a known fact but the government saw no need to pursue this policy instead opted to substitute it. . Another important issue that did not receive the adequate necessary intervention from the State was drought management, despite there being a drought for three long years. This along with falling prices in agricultural commodities owing to imports, lifting of agricultural and power subsidies, withdrawal of public distribution system, procurement support, and crop compensation schemes only compounded the agrarian 78

crisis. These shifts in policy need to be located within the realm of globalisation, where on the one hand the agriculture sector is being subject to minimal State support, while on the other numerous sops and tax cuts offered to the IT industry besides the easy availability of infrastructure. So while the government was busy pandering to the whims and fancies of the IT sector, more than 1000 farmers across all regions of Karnataka (except the coastal parts) the economically backward, drought-prone regions to the relatively advanced agricultural regions spurred by agrarian distress of one kind or the other, committed suicide this year, just like other farmers since 1998. These suicides can be understood as symptomatic of widespread agrarian distress and indicate towards the sorry realities of larger agrarian communities living in constant state of insecurity and poverty. Sadly, these suicides were not enough to force the government to take serious note and implement policies to prevent its recurrence. As has been the past practice, except for the formation of committees (like the Veeresh Committee formed this year to look into the reasons behind farmer suicides. Incidentally its report has come in for severe critism from farmer organisations including Karnataka Rajya Raitha Sangha (KRRS)), and by writing-off the outstanding loans, the government has noit done much to address this issue. people/speak One of the critical flaws of this modernist Project IT was its imagination as being a mega project of social engineering and cohesion, creating economic and social equality and administrative efficiency. It unfortunately assumes for itself a set of stable references such as 'development', equality, 'efficiency', etc. without realizing that these are the very terms of contestation and conflict. The associated ideological shift from a welfare state to an administrative one catering to only to small sections of the population resulted in deeper schisms in society. While the government promised clean Bangalore and an 100% slum free city, majority were asking for tenure security and access to basic amenities. While the government went into villages with Bhoomi and kiosks to tackle the village accountant the communities were asking for land reforms towards reorganizing agrarian relations besides ensuring water, electricity, seeds, crop insurance and social nets such as PDS. The obvious dissonance


between the expectations of the people and what was being forced down their throats was obviously hard to swallow. The question around the impacts of this dissonace on election is an extremely crucial one to ask. It would be useful to compare the situation in Andhra Pradesh with that of Karnataka here due to the striking similarities in the policies of the States, urban-ITcentric. The trashing of Chandrababu Naidu44, the best-known patron of the World Bank in the implementation of its reform agenda and an icon in the world of Information Technology, demonstrates the devastating impacts of the dissonance besides other factors. Coming back to Karnataka, various local and regional factors affected these elections. For instance the growth of the BJP (44 seats in 1999 to 79) has been largely confined to the coastal belt where sustained campaigns of the Sangh Parivar appear to have paid off dividends and in regions where the JD (U) still has considerable base. However, the resurgence of the JD (S) (10 seats in 1999 to 58) is an indicator of the rejection of the urban-based, IT-centric and globalization influenced policies of the State government. Although not as emphatic as the debacle of Chandrababu Naidu, the election results in Karnataka can be seen as a rejection of the pro-urban IT-centric image and World Bank-driven economic reforms agenda of the Congress government. All said and done, these results only prove that, You can fool some people some times, but you cannot fool all the people all the time! Note: Though this article does not offer a critique the IT industry in Bangalore it must be noted that the industry has come under fire for its low-value status. According to G V Dasarathi, director of a software products development company, Bangalore is not Silicon Valley but actually 'Coolie Valley'. According to him most of Bangalore's software development companies (including TCS, Wipro, Infosys, etc.) provide endto-end solutions for e-commerce, banking, telecom, etc i.e. software coding. These companies provide development services and do not develop any technologies or products. Their chief resource is the huge mass of low-cost labour force of engineers specializing in programming languages rather than in technologies. He goes on to state that the basic difference between Silicon Valley and Bangalore being that Silicon Valley companies are based on 'know what.' i.e. they know the market, they know the

Assembly: Of a total 294 seats, Congress and its allies won 226 seats while TDP and its allies won 47 (compared to 191 seats won in 1999). Lok Sabha: Of a total of 42 seats, TDP and its allies won 5 (compared to 36 seats won in 1999), rest going to Congress and its allies.


technology and they know what products to make to earn money. Bangalore companies are based on 'know how.', doing software coding for other companies that have the 'know what.'


Porous Legalities and Avenues of Participation45

- lawrence liang Introduction More often than not, the story of copyright piracy narrates itself through the language of statistics and figures and the narrative strategy of excess, designed to induce a 'shock and awe' response at the alarming rate of piracy and illegality' that exists, especially in non western countries. As with any story that seeks an international audience, the choice of narrative strategy is the key and for the story to be understood and have appeal it will have to transcend the cultural speceficity under which certain stories come to be appreciated. This is especially true when one is attempting one's hand in the genre of horror stories and in the present case the horror story of piracy just does not work in terms of inducing a sense of anxiety and fear in countries like India. One must however provide reasons for why these stories don't work in some context and for that we will have to travel to distant cities like Delhi and Sao Paulo and perhaps even walk through the more unfamiliar bylines of familiar cities like New York. After urban studies, the idea of an illegal city is familiar to us. One reads for instance that an average of 40 per cent and in some cases 70 per cent of the population of major cities live in illegal conditions. Furthermore, 70 to 95 % of all new housing is built illegally. (Durand -Lasserve and Clerc, 1996). The primary reason for this state of illegality arises from the nature of land tenure forms in cities, where the twin tropes of ownership and title are clearly unable to account for the myriad ways through which people assert a claim on land and to the city more generally. The people who live in this perpetual state of illegality also engage in other networks of illegality, such as stealing electricity, water, bribing their way through the Kafkaeque bureaucratic structures to access civic amenities that the legal city takes for granted. A first glance at the official responses to this older illegal city reveals the familiar face of anonymous statistics and 'shock and awe' figures. Thus when we cut back the piracy story and we are told that over 70% of the software used in India is illegal; we encounter this figure with a sense of familiarity and not anxiety.

First circulated for SSRC workshop, and now forthcoming in an anthology edited by Nalini Rajan on Media Politics

Clearly any simplistic account of the widespread illegality in terms of efficiency, morality, disorder or corruption etc. would only perform an epistemic violence which does little to aid our understanding of urban experience and the ways in which people create avenues of participation and make claims to the city. The contribution of urban studies has been to provide a more nuanced sense of the phenomenon of the illegal city. In a city like Bangalore for instance the urban planning authority, the Bangalore Development Authority provides for approximately 15-20% of the housing requirements, while another 12-15 % are met by private developers. The rest of the city emerges outside of planned development and is hence outside the law. Most urban citizens have no choice but to build, buy or rent illegal dwellings since they cannot afford the cheapest legal accommodation or there is not enough supply to meet the demands of a growing city, marked by high migration as a result of the new information technology dreams that also spurs the imagination of the city's official residents. A liberal understanding of land tenure forms is limited because of its understanding of interest in land relies too heavily on how ownership and legitimate claims are narrated through the title deed and other legal documents. Any attempt to understand the complexities of the ways in which people make a claim to land in the city would have to take into account the multiple and complex forms that it takes in terms of networks of relationships that constitute a land tenure claim ( the hawker who has a designated place even though he is not entitled to the place in any formal manner, the squatter who pays a rent to the local policeman, the illegal slum that begs borrows and steals electricity and water from the rest of the productive city, the unauthorized revenue layout that gets regularized or legalized near election time on the basis of their strength as a vote bank). Writing about the modernist project of planning, James Holstrom writes that " modernist planning does not admit or develop productively the paradoxes of its imagined futures. Instead it attempts to be a plan without contradictions or conflict. It assumes a rational domination of the future in which its total and totalizing plan 83

dissolves any conflict between the imagined and existing society in the enforced coherence of its order. This assumption is false and arrogant as it fails to include as its constituent element, the conflict, ambiguity and indeterminacy characteristic of actual social life". While the older illegal city has been in existence for a while, in the past ten years there has been another layer that has been integrated into the experience and narration of this illegal city. The proliferation of non legal media practices ranging from pirated VCD's, DVD, MP3's to grey market mobile phones informs the practices and imagination of the illegal city. This paper attempts to understand this new layer of illegality and the manner in which it integrates into the older city. The task will be to pose the question of how the older form and the newer form integrate, intertwine to collectively interrogate our liberal assumptions of legality and highlights the limitations of any study based on a strictly legal understanding of contemporary urban practices. I will do this examining the cassette revolution that took place in India in the eighties, and the sphere of illegality in which it emerged. Building on some significant attempts to provide entry points into understanding this aspect of the city, I would also like to posit the idea that porous legalities are often the only modes through which people can access and create avenues of participation in the new economy The information era props up a master plan, similar to that of modernist planning. The institutional imagination of the era relies on the WTO as chief architect and planner, copyright lawyers as the executive managers of this new plan and the only people who retain their jobs from the old city are the executors of the old plan, the police force and the demolition squad. Just as one cannot understand land tenure through the prism of liberal legality alone, any attempt to understand the complex networks of economic and social relations that underlie the phenomenon of piracy will have to engage with the conflict over control over the means of technological and cultural production in the contemporary moment of globalization. The ways in which the illegal media city emerges and co exists alongside the vibrant, innovative and productive debris of the older city, the schizoid relationship between legality and illegality in postcolonial cities suggest that the crisis may not lie in these relations, and we may need to turn the gaze of the law from the usual suspects of legality to 84

legality itself and the relations that underlie its existence. Derrida has said very poignantly that the admiring fascination of the rebel can be understood not merely as the fascination for someone who commits a particular crime but that someone, in defying the law bares the violence of the legal system or the juridical order. Cassette Culture and the creation of the new media city Before we begin to point out to the different entry points through which we can understand this new illegal city, it would be useful for us to take a trip to the 80's to understand the developments that preceded the formation of this new city in India. I believe that it is critical for us to understand this period to get a sense of why non state, non elite electronic cultures have always had a problematic relationship with law and legality. Peter Manuel provides us with an excellent history of the emergence of new media in India tracing out the cassette revolution that took place from the mid eighties. This revolution, he claims created a new aesthetic of media production and consumption that escapes the totalizing imagination of old media in the form of national television, radio and cinema. According to him, new media challenges the one way, monopolistic, homogenizing tendencies of old media as it tends to be decentralized in ownership, control and consumption patterns and hence offer greater potential for consumer input and interaction. I shall briefly summarize Manuels account of the emergence of cassette culture in India. In 1908 the British owned GCI had established its factory in Calcutta and through exclusive distribution agreements, it came to dominate the market in an absolute manner. The monopoly had profound cultural impacts in terms of the local genres and languages which it either appropriated, ignored or reduced into a dialect. The necessity of an all India market to ensure great profits ensured the emergence of an all India aesthetic form in film music. The dominance of the Hindi film music and the monopoly of GCI continued till well past the postcolonial period. The development model adopted by the Nehruvian state emphasized state investment in large scale infrastructure projects like dams, mines, factories while discouraging luxury consumption through high import tariffs. These policies of over taxation, 85

cumbersome licensing inhibited the consumer electronics industry and related industries. Manuel reports that by the late seventies however, large number of immigrant workers to the gulf countries had begun to bring back cassette players into India (These were Japanese two-in ones) and the ubiquitous cassette player soon became a symbol of affluence and object of modern desire. This is also the period that saw the emergence of a nascent market for pirate cassettes of film music, feeding off the growth of cassette players and also contributing to the expansion of the gray market where such luxury' items could be purchased by the relatively well off. The liberalization policy of the state in the late 70's designed to stimulate growth, demand, exports and product quality saw a liberalization of many import restrictions. The bourgeoning middle class stimulated the electronic industry and while a few were willing to pay the high import duties on foreign electronic goods, a larger number were content tot buy them off the gray market. Certain significant developments in this period helped to create a mature market for consumer electronics industry: Reduction of duties enabled Indian manufacturers to import selected components New policies encouraged foreign collaborations in the field of consumer Tape coating became big in India and from the period of 1982 to 1985, record

for local manufacture of cassette players. electronics including magnetic tape production. dealers switched to cassettes and by the mid 80's cassettes came to account for 95% of the market. Sales of cassettes went from $1.2 million in 1980 to $12 million in 1986 and $21 million in 1990. Export of Indian made records jumped from 1.65 million rupees in 1983 to 99.75 million in 1987. By the end of the 80's Indian consumers were buying around 2.5 million cassette players. This is also the period that saw the swift decline of GCI- HMV as the dominant/ sole player in the industry and the emergence of a handful of large players and over 500 small music producing companies. In a period of a few years, India had become the world's second largest manufacturers of cassettes


marketing 217 million cassettes. This period also saw the decline of the film music as the dominant aesthetic form and its marker dropped from 90% to 40% and a whole new range of forms from devotional music, to local language songs and other kinds of markets began to emerge. This period of tremendous growth is however marked clearly by its troubled relationship of with and legality, with various practices that often straddled both the worlds sometimes making it difficult to distinguish one from the other. In its initial boom period, most of the music companies were a part of the informal but well networked sector. They often worked with illegally obtained components to ensure cost effectiveness of their product. These ranged from smuggled goods to indigenously manufactured but unlicensed products, components and magnetic tapes. It in this context that we can evaluate the story of one such maverick entrepreneur who with a combination of dynamic business skills, ruthless tactics and a elastic idea of legality came to shaper the music industry. In 1979 two brother Gulshan and Gopal Arora who ran a fruit juice shop in Delhi, and were also electronic buffs began a small studio where they recorded Gharwali, Punjabi and Bhopjpuri songs. After borrowing money they visited Japan, Hong Kong and Korea to study cassette technology and the industry. They returned to set up a factory in India to produce magnetic tapes, and also started producing cassettes and silicon paper and finally built a complete manufacturing plant where they offer duplication services to the smaller regional cassette producers. By the late 80's T Series emerged as the clear market leader and currently they have a set up with worth over $ 120 million and have diversified into manufacturing video tapes, television, VCD players, MP3 players, washing machines and even detergents. The elastic legality of Gulshan Kumar's world translated itself in the following manner: Using a provision in the fair use clause of the Indian Copyright Act which allows for version recording, T Series issued thousands of cover versions of GCI's classic film songs, particularly those which HMV itself found to be unfeasible to release. T Series also changed the rues of distribution by moving into neighborhoods shops,


grocery shops, paan waalahs, and tea shops to literally convert the cassette into a bazaar product. T Series was also involved in straight forward copyright infringement in the form Illegally obtaining film scores even before the release of the film to ensure that Inserting huge amounts of inferior tape into the established brands to discredit the of pirate releases of popular hits relying on the loose enforcement of copyright laws. their recordings were the first to hit the market well established names. While one could easily dismiss these practices as unscrupulous, unethical or clearly illegal activities, we also need to keep in mind the overall impact that T Series had on the music industry in India and cassette culture itself. T Series created as new cassette consuming public by focusing on various genres and languages, which were completely ignored by HMV. HMV had promoted Hindi at the cost of many other languages, which it deemed to be unfeasible in economic terms given the scale of their operations. T Series by changing the rules of the game and introducing for the first time the idea of networked production, where it would offer its duplication services to a number of the small players revived smaller traditions of music. Finally the reduction of the price of the cassette by T Series created a mass commodity. Clearly no straightforward account of legality and business ethics can capture the dynamics and the network of interests that fueled the cassette revolution. For instance in an interview with Peter Manuel, one of the employees of T Series stated that " What the people say about our activities in the early years- its is mostly true. But I tell you that back then, the big Ghazal singers would come to us and ask us to market pirate versions of their own cassettes, for their own publicity, since HMV wasn't really able to keep up with the demand". Similarly even major players like HMV in the past dealt with the pirates. For instance when HMV found that it could not met the demands for one of their biggest hits, Maine Pyar Kiya, they are reported to have entered into an agreement with the pirates whereby the pirates would raise their price from Rs. 11 to Rs. 13 and pay HMV half a rupee for every unit that they sold on the condition that HMV did not sue them or raid their businesses. Other producers are also known to have colluded with pirates in production and marketing so that they can minimize their cost, the taxes payable and royalties by hiding the extent of their sales.


The role played by piracy in the creation of a market, in the process of creating a lock in period and also in the reduction of price and has been clearly in software industry and film industry. (Similarly the price of VCD's has come down to Rs. 99, even lesser than what the pirated copy used to be Rs. 100). Similarly the free school street phenomenon of Calcutta created a sub cultural consumption of large amounts of sixties rock before these tapes were available in the Indian markets. Without such a niche elite public, it is highly debatable as to whether Magnasound could have emerged in the early nineties as the most important player in the English music industry in India. I would like to conclude this segment with two ironical stories that can then lead us to the contemporary. The first is that after its rather chequered history with copyright law, T Series is now one of the most aggressive enforcers of their copyright in India. The have a battery of professionals, generally retired police officials who monitor copyright and trademark infringement cases. The second story is an extract from Peter Manuels conclusion to the history of cassette cultures in India. After providing us with a fascinating look at the ad hoc world of innovation based on very porous ideas of legality, Manuel speculates on the possible developments in the future where he says " In India a pre recorded CD costs as much as Rs. 250 or twelve times the price of a tape. CD players themselves anywhere between 5000 upwards, which would constitute a fortune for most Indians/. As a result, CD's naturally remain confined to the upper class. For the music producer, the growth of the CD market is seen as a possible weapon against piracy, as the CD's cannot be duplicated (onto other CD's). Entering the new city We can now return to the contemporary urban landscape where the prevailing model of piracy is precisely through the form that was intended to guard against piracy. With the absolute collapse of the costs of CD writers and CD's, every computer owner is a potential producer and redistributor. The logical transition of the older inhabitants of the world of pirated cassette cultures, video library owners etc. into the world of CD's then almost appears as a natural progression. I have outlined the two central histories that we need to narrate to understand the present moment. The first attempt was to problematize and contextualize the idea of illegality vis a vis claiming a space in the 89

city, and the manner in which these claims challenge the liberal premise of law, citizenship, access to institutions of democracy. The second move was to provide a brief history to eh emergence of cassette cultures, and why it emerged in a context of illegality, the central role that it plays in the creation of a public that is not based on print medium imagined sense of the public sphere. It also narrates a world of innovation and discovery which treat any monopolistic claims, be it legality or economic participation, with a sense of irreverence. I would now like to examine some of the ways in which a critical dialogue around IP may take place. At the moment there exists a rich body of the work in the US that seeks to challenge some of the developments in IP law. These are generally posited within literary theory inspired critiques of the assumption of authorship, or they argue that copyright endangers the free flow of information within the public domain. Implicit within this critique however is an assumption of a vibrant public sphere, where constitutionally guaranteed rights such as freedom of speech and expression should dictate IP policy. The challenge of having an inter continental dialogue is really to push the limits of thinking through the problem of understanding the publics which lie outside the assumptions of the liberal public sphere; to understand the complex spatial logic of globalization and the unfolding of highly unequal division of labour within the sphere of cultural production ( a bootleg Nike t shirt surely has a very different tale to tell as it circulates as a fake or a copy in Los Angeles compared to the circulation in Thailand, one of the largest hosts of the various sweatshops of the world. To understand the difference between the cultural politics of content and appropriation, and the world where content may fit into the larger politics of cultural hegemony of Hollywood, while at the same time enabling diverse entry points into the global modern for a range of people, ordinarily left out of the imagination of the nationalist project of modernity. The social of the remix in India may have little to do with the romantic assumptions of cultural appropriation and resignification as expressed in Campbell v. Acuff Rose, and more to do with the impact of the structural transformation of industry practices and monopolies as articulated in a Sega v. Accolade. The avenues I have suggested below offer an entry point into understanding the challenges posed by different media practices to an IP regime that insists on the creation of a global regime of ownership 90

and control on which there is an assumed social cohesion and a containment of all social conflict and that there will be no dispute over the forms of property that emerge and expand. a. The first and most simplistic account of the phenomenon of piracy is that of unequal access between the developing countries and the developed countries. The argument is that the price differential forces people in developing countries to buy pirated goods since they would not be able to buy the original goods. While there s a truth in this proposition of the price factor, the inherent problem of such an entry point is that it relies on a model of piety ( the poor third world figure) and is fundamentally dependent on the 'development', catching up with the west' account of global relations. The global contemporary is far more complex and one would have to provide an account of the complex logic of cultural production in the era of globalization. The pirate in developing countries is not a figure of piety and this account divests him of any agential role as s/he navigates through the mediascapes of globalization that frames his experience. b. The second entry point emerges from writers like Jeremy Rifkin who would argue that there is a fundamental shift in our understanding of the logic of production, distribution and consumption. Rifkin argues that we live in an age of access and the culture of the internet for instance is predicated on a culture of networked distribution and circulation. In this new era, there is a transition fro the idea of the market in the older senses of the term to the idea of networks. His account of the nature of the networked economy would render futile for instance any account of piety, as his account is not configured on differential access or privilege alone. He sees the culture of the networked economy as fundamentally shaping the way people think about production, distribution and collaboration. The older form of regulation and structuring of economic transactions will then just not work within this framework. According to Rifkin, "The young people of the new 'protean' generation are far more comfortable conducting business and engaging in social activity in the worlds of electronic commerce and cyberspace, and they adapt easily to the many stimulated worlds that make up the cultural economy. Theirs is a world that is more theatrical than ideological and oriented more to a play ethos, than to a work ethos. For them, access is already a way of life, and while property is important, being connected is 91

even more important. The people of the twenty first century are likely to see themselves as nodes in embedded networks of shared interests as they are to perceive themselves as autonomous agents in a Darwinian world of competitive survival. For them, personal freedom has less to do with the right of possession and the ability to exclude others and more to do so with the right to be included in webs of mutual relationships. They t are the first generation of the Age of Access". In such an account, copyright would emerge as a slightly archaic mode of regulation that is culturally embedded in the technology pf paper. This is also a world which transforms the older worlds of legal imaginaries, using the language of exclusive rights to generate a world of access. The GNU GPL is a classic instance of such a use. c. Our third entry point is through an examination of the intertwined histories of postcolonial nationalist aspirations of modernity and a particular relationship tot he public sphere. Ravi Sundaram in a Series of articles has been theorizing the phenomenon of piracy and illegal media cultures in the new media city. According to Ravi Sundaram, this world of non legal medias in a number of south Asian cities, marked by its rather ad hoc innovativeness and its various strategies of survival, is the world of recycled modernity. It exists in the quotidian spaces of the everyday and cannot be understood within the terms of the earlier publics (the nationalist public and the elite public sphere). Fueled by aspirations of upward mobility, it is an account of the claims to modernity made by a class of people, otherwise unaccounted for by the meta narrative f the nationalist project of modernity. These cultures of recycling do not however exhibit any of the characteristic valor or romance of counter publics. Beginning with the audio cassette revolution that we examined and moving rapidly into the worlds of computers and digital entertainment, this world has been based on a dispersed logic of production and consumption, and marked by is preponderant illegality. This rearticulated entry point into the modern is also contemporaneous with the emergence of the global moment and this arrival of the global via media, new forms of labour like call centers, the software industry in India etc replace the earlier configuration of national/ modern with the global modern. While understanding the issue of entry points that one makes into the modern it now becomes critically important for us to recognize that the shifts in registers of imagination that the global brings upon the national/ modern configuration.


d. Our fourth entry point into understanding these practices comes from a metaphorically rich account of the role of networks and seepages provided by Raqs media collective. Looking at five figures of transgressions in the contemporary context ( the migrant, the hacker, the pirate, the alien and the squatter), Raqs argues that the modes through which these transgressors of law emerge as residues in the gigantic movement of capital. Capital transforms older forms of labour and ways of life into those that are either useful for it at present, or those that have no function and so must be made redundant. Thus you have the paradox of a new factory, which instead of creating new jobs often renders the people who live around unemployable; A new dam, that instead of providing irrigation, renders a million displaced, a new highway that destroys common paths, making movement more, not less difficult for the people and the communities it cuts through, and the question posed by Raqs is how does one begin to understand what happens to these people who fall off from official maps, official plans and official histories. The argument is that these people travel with the histories of the networks that they were a part of and are able at any point to deploy the insistent, ubiquitous insider knowledge of todays networked world. They then introduce the powerful metaphor of seepage and how it may help us to think through these acts of transgressions. How does this network act, and how does it make itself known in our consciousness? We like to think about this in terms of Seepage. By seepage, we mean the action of many currents of fluid material leaching on to a stable structure, entering and spreading through it by way of pores. Until, it becomes a part of the structure, both in terms of its surface, and at the same time continues to act on its core, to gradually disaggregate its solidity. To crumble it over time with moisture. In a wider sense, seepage can be conceived as those acts that ooze through the pores of the outer surfaces of structures into available pores within the structure, and result in a weakening of the structure itself. Initially the process is invisible, and then it slowly starts causing mould and settles into a disfiguration and this produces an anxiety about the strength and durability of the structure. By itself seepage is not an alternative form; it even needs the structure to become what it is but it creates new conditions in which structures become fragile and are rendered difficult to sustain. It enables the play of an alternative imagination, and so 93

we begin seeing faces and patterns on the wall that change as the seepage ebbs and flows. In a networked world, there are many acts of seepage, some of which we have already described. They destabilize the structure, without making any claims. So the encroacher redefines the city, even as she needs the city to survive. The trespasser alters the border by crossing it, rendering it meaningless and yet making it present everywhere even in the heart of the capital city so that every citizen becomes a suspect alien and the compact of citizenship that sustains the state is quietly eroded. The pirate renders impossible the difference between the authorized and the unauthorized copy, spreading information and culture, and devaluing intellectual property at the same time. Seepage complicates the norm by inducing invisible structural changes that accumulate over time. It is crucial to the concept of seepage that individual acts of insubordination not be uprooted from the original experience. They have to remain embedded in the wider context to make any sense. And this wider context is a networked context, a context in which incessant movement between nodes is critical. Porous Legalities and avenues of Participation Finally I would like to weave another entry point building on those which I have outlined thus far. What seems to weave the stories of the inhabitants of the older city with the denizens of the new city is the umbilical cord of illegality that defines the ways through which they create for themselves avenues of participation. Building on the seepage metaphor of Raqs I would like to add another trope which allows us to understand what allows these seepages to take place, viz. the idea of porous legalities. Porous legalities are created through different forms and materials, but primarily through a profound distrust of the self narrated life of law and law enforcers. The slum dweller with a desperate instinct for survival has little choice but to ignore the law in order to carry on with the rather difficult task of surviving a hostile city, challenging the idea that it is the natural role of law to ensure the public good. At other times, you follow the pores created to benefit the elite few who know how to enter into the legal machinery in their favour, and entering these pores use the same routes to secure yourself. In this avenue, the idea of corruption, bribery , especially 94

within the police force for instance, act like a self fulfilling prophecy which works at different levels/ hierarchies for different kinds of claims. The music company paying the police to conduct raids also has to deal with the policeman who will pass the information of the raid to the pirates. A few pores exist as a part of the structure and design of the legal order itself. Thus the ability to produce cover versions available in the Copyright Act becomes the basis of the creation of a new set of media practices that in turn create an anxiety of regulation all over again. One could understand these porous legalities as inevitable reproductions of social relations of power, but social struggles, whether they constellate around power, law or knowledge, also have an internal logic of their own where they tend to be performative, as they actively produce (rather than merely reproducing) the forms of power, law or knowledge that best suit their horizons of expectations. The tragedy would be to examine a practice of illegality, especially around media within its own horizons of expectations. We need instead to uncover the various constellations of fantasy, mobility, innovations that mark the realities of these social worlds. Santos states for instance that Though for different reasons, maps, poems and laws distort social realities, traditions or territories, and all according to certain rules. Maps distort reality in order to establish orientations; poems distort reality to establish originality and laws distort reality to establish exclusivity. The figures of illegality poses fundamental questions to our neat categories of the liberal public sphere were citizens interact through constitutionally guaranteed rights, as the exclusive mode of understanding the world of law and legality. The status of these transgressors as the not quite and yet not quiet citizens creating their own avenues of participation in the multiple worlds of media, modernity and globalization demands that we ask fundamentally different questions of the relationship between law, legality property (tangible and intangible) and that which we call the public domain. Bibliography 1. Alain Durand- Lasserve and Lauren Royston, Holding their ground, (London: Earthscan, 2002)


2. Arthur J. Jacobso, The informal economy: the other path of the law, 103 Yale L.J. 2213 3. 4. 5. 6. Boaventura De Sousa Santos, Towards a new common sense, ( New York : Carlos Osorio, A contribution to the understanding of the llegal copying of Christain Zlolniski, The Informal Economy in an Advanced Industrialized Diane Singerman, Avenues of participation: Family politics and networks in Routledge, 1995). software, Working Paper, MIT Program on Internet and Telecoms Convergence. Society: Mexican Immigrant Labor in Silicon Valley, 103 Yale L.J. 2305 urban quarters in Cairo, (Princeton: Princeton Univ. press, 1997) 7. Jeremy Rifkin, The Age of Access, The New Culture Of Hypercapitalism, Where All Of Life Is A Paid-For Experience, (New York: Penguin 2001) 8. Jeorge Hardoy & David Braithwaite, Squatter Citizen, (London: earthscan, 1989). 9. Mitchell Duneieir, Sidewalk, (New York: Farrar, Straus and Giroux, 1999) 10. Peter Manuel, Cassette Culture: Popular Music and technology in North India, (New Delhi: Oxford Univ. press, 2001). 11. Ravi Sundaram, Recycling modernity: Pirate electronic cultures in India, Sarai Reader 01: The Public Domain 12. Ravi Sundaram, Beyond the Nationalist Panopticon: the Experience of Cyberpublics in India, available at http://amsterdam.nettime.org/ListsArchives/nettime-l-9611/msg00018.html 13. Ravi Sundaram, Electronic Marginality Or, Alternative Cyberfutures in the Third World, http://www.ljudmila.org/nettime/zkp4/08.htm 14. Raqs Media Collective, X notes on Practice: Stubborn Structures and Insistent Seepage in a Networked World (To be published)


There are no short cuts to queer utopia: Sodomy, law and social change
- arvind narrain

Law stands linked to justice in our very imagination of social change. Perhaps nothing illustrates this process better than the persistent championing of legal reform as the end point of emancipatory change by many social movements. There has been an over juridification of social struggle, converting what is a wider social project into a narrow legal project. This process of envisaging law reform as the end point of social struggle has its hazards particularly due to the undemocratic and secretive way in which the legal process works. The point of this article is to draw attention to the limitations of law in the particular context of sodomy law reform in India so that we are better able to locate law reform as a part of a wider and more meaningful process of social and political change. To do this article will strive to understand what is the meaning of Sec 377 of the Indian Penal Code for Indias sexual minorities and critically examine the way law reform has worked in bringing about social change and address what could be the role that law reform (a la sec 377) could play in a newly emerging political movement centering around sexuality. Sec 377 as violent social exclusion Ever since the emergence of the queer articulation in the Indian context a lot of effort has gone into focusing on Sec 377 as the locus of oppression of the diverse groups which make up Indias sexuality minorities. Sec 377 which was drafted in 1860 by Lord Macaulay as a part of the colonial project of regulating and controlling the Indian subject reads,
Unnatural sexual offences: - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment..which may extend to ten years, and shall also be liable to fine.

Explanation. - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The study of the use of Sec 377 reveals that it has hardly been used to prosecute cases consensual adult male sexual relationships. Rather the main use of Sec 377 has been to prosecute cases of child sexual abuse.46 However it needs to be noted that use cannot be seen purely in terms of reported decisions. There are possibly many trial court decisions in which Sec 377 has been used. Even leaving that aside, documentation in India, through reports such as the PUCL Report on Human Rights Violations Against sexuality minorities demonstrates that Sec 377 becomes the basis for routine and continuous violence against sexual minorities at the level of the street and the police station by the police. The report in fact goes on to note that the police engage in practices of illegal detention, sexual abuse and harassment, extortion and outing of queer people to their families, which are all forms of violence practiced against sexuality minorities.47 While these are indeed important effects of Sec 377, one needs to understand the constitutive role that Sec 377 plays in making possible the above mentioned forms of violence. What one needs to do when analyzing the role Sec 377 plays is to go beyond the idea of enforcement of law and look more closely at what is the socially constitutive role that law plays. The questions one needs to address are whether the law constitutes a form of social reality, whether it legitimizes violence against sexual minorities or does the law go one step further and permeate social discourse and condition the very minds of common people? 48 The impact of Sec 377 is far beyond the so called enforcement principle. Foucault used the analogy of the panoptic to put forward the idea that the law is not external to you, but rather internal to you. You behave in a certain way because you have internalized the prohibition of the law. The real danger of Sec 377 lies in the fact that

Alok Gupta, The History and Trends in the Application of the Anti Sodomy Law in the Indian Courts, The Lawyers Collective, Vol 16, No.7, p.9. 47 http://www.pucl.org/Topics/Gender/2003/sexual-minorities.htm 48 For a powerful analysis of the constitutive role that law plays in producing a regime in which gays and lesbians are ultimately encouraged to police themselves and the way in which sodomy laws function as symbolic statements and as threats of criminal punishment and disempower lesbians and gays in a range of contexts. See Ryan Goodman, Beyond the Enforcment Principle, California Law Review Vol 89:643 2003. 643


it permeates different social settings including the medical establishment, media, family, and the state. Thus it becomes a part of ordinary conversations and ultimately a part of the very social fabric in workplaces, families, hospitals and the popular press. To take three examples, ! This emerges strongly in an interview with the Chairman of the National Human Rights Comission, (NHRC). On being asked why the NHRC refused to admit the case of a person who was treated for his homosexuality with the objective of converting him to heterosexuality, the response of the Chairman was to note that, To talk of homosexual rights is okay in other countries but there was little you could do when the law in India, Sec 377 was against it. You advised that one should strive to get rid of the law but nothing could be done till it was repealed. This opinion seems to be buttressed by other reported opinions within the NHRC. As one source within the NHRC put it, homosexuality is an offence under IPC, isnt it? So, do you want us to take cognizance of something that is an offence?49 ! Similarly in an interview with a Police Officer conducted by the PUCL Team it was noted that as regards the nature of homosexuality, Mr Hegde was quite clear that it was an animal like behaviour.50 ! In another interview with a doctor who practices aversion therapy to convert homosexuals to heterosexuals noted, Sodomy is illegal in India. (Dr. S)51 Thus what is clear is the existence of Sec 377 legitimises the doctors willingness to treat homosexuals for being homosexual. The very existence of Sec 377 goes beyond the question of the enforcement of the law and crystallizes the deep societal repugnance towards homosexuality by considering it perverted, animal like behavior. If we have people in law enforcement, medical practice and the judiciary treating homosexuals as people without rights, the power of the societal mindset comes from the law. Thus Sec 377 functions as a condemnation of Indias sexual minorities be it gays, lesbians, kothis and hijras. It is not anymore a narrow technical legal issue of the gender neutral prohibition of sodomy (it applies

Arvind Narrain , Queer: Dispised sexuality, law and social change, Books for Change, Bangalore , 2003. p. 120. 50 http://www.pucl.org/Topics/Gender/2003/sexual-minorities.htm 51 Vinay Chandran et. al, Its not my job to tell you that its okay to be gay , ( on file with the author)


equally to heterosexuals and homosexuals) but instead embodies and enacts a wider societal condemnation of sexual minorities. Sec 377 is thus not just a law, but a worldview which remains entrenched in legal structures, medical discourses, family discourses and media discourses and perhaps most strongly in the common sense understanding of people. It is in this light that the challenge to Sec 377 must be framed.

Law Reform as backroom politics: Some experiences

Once we are clear that Sec 377 does indeed form a key part of a discriminatory worldview against sexual minorities, the next question is as to how one tackles the problem posed by Sec 377. As noted earlier, many social movements see the reform of the law as an end point of their social struggles with all activism being geared towards bringing about a change in the law. In this context the experience of law reform by the feminist movement in India as well as the experience of anti sodomy law reform in the USA and Sri Lanka will be examined to see what light they can shed on anti sodomy law reform in India.

Law reform in India The feminist engagement

The feminist movement in India has had an sustained engagement with the question of law reform with many of the demands of the womens movement being posited in terms of reform of the law. Flavia Agnes in her study of the womens movements engagement with law reform notes that in the context of the womens movement, demands for law reform have often resulted in laws which end up further marginalizing the women and making prosecution that much more difficult. She gives the example of rape law reform and concludes that, the campaign against rape is a classic example of the impact of public pressure on the judiciary. More favourable judgements were delivered before the amendment, during the peak period of the campaign, than during the post-amendment


period when they have been consistently regressive. Perhaps public pressure is a better safeguard to ensure justice than ineffective enactments.52 What is being articulated is a notion wherein law reform by itself is not the solution. The movement underlying legal demand remains crucial to bringing about the desired social change. In fact the over reliance on law as an end point of social activism might need to be seriously questioned. As Flavia puts it, This view is only strengthened by the experiences of the womens movement in India, which at least at its inception granted the State the role of a benign patriarch which will deliver goods. Two decades down the line, there is a growing realisation within the womens movement that the plethora of legal interventions has not really changed the ground reality in very substantial terms.53 Though Flavias articulated this concern is the last decade, even today it remains a crucial question for the feminist movement to take on board. The recent experience with the attempt at law reform around the issue of domestic violence is telling. While there was an excellent draft prepared by the Lawyers Collective on domestic violence, when the bill went to the state, the state came out with its own draft which in effect was a legitimisation of domestic violence by the man provided the violence was in defence of his private property. Regardless of the final outcome of this process, the signs are clear, one must be wary about approaching the state to change the law , because what you get might be the very opposite of what you asked for, as the example of anti sodomy law reform from Sri Lanka illustrates.

Sodomy law reform as politics: From Sri Lanka to the USA

Two countries illustrate well the dangers and opportunities presented by sodomy law reform. The Sri Lankan case is illustrative of the dangers of trying to force change from above, while the USA example illustrates the social context in which law reform succeeds.

Flavia Agnes, Protecting Women against Violence?: Review of a Decade of Legislation, 19801989, in State and Politics in India (Partha Chatterjee, ed.), Oxford University Press, New Delhi, 1997,p.523. 53 Ibid. ,p. 522.


a) Sri Lanka
Sri Lanka has a similar provision to Sec 377 in its Penal Code. The changes to the Penal Code were recommended in the context of the need for amendments to the law to protect the victims of incest, marital rape, sexual harassment and the exploitation of children. Though gay rights groups and human rights activists such as the late Neelan Thiruchelvam clearly opposed the continued operation of Sec 365A of the Penal Code arguing that the provsion was archaic, the amendment broadened the ambit of acts considered criminal under the law. The term man was changed to person and carnal intercourse against the order of nature became act of gross indecency with any person. Thus, a provision which did not apply to lesbians in its colonial avatar was actually expanded to include lesbians in the wake of this reform rather than ceasing to apply to gay men. What the Sri Lankan story tells us very clearly are about the hazards of law reform in a context where there is no movement. Nandita Haksar could very well have been speaking about the Sri Lankan case when she noted, [A]n alternative to a movement cannot be a petition. I strongly feel we should resort to the law only when the movement is strong enough to carry the law reform forward. In almost all such cases a legal battle should only supplement the political battle outside the courts. If the legal battle is allowed to take precedence over the political one the law is easily used by the state to subvert the political battles objectives.54

b) USA
The US Supreme Court in a 1986 decision, Bowers vs Hardwick55 decided that the anti sodomy law of the state of Georgia does not violate the constitutionally protected right to privacy. In 2003 the same US Supreme Court in Lawrence vs Texas,56 struck down the anti sodomy law on the same ground that it does indeed violate the constitutionally protected right to privacy. The question to be answered is what


Nandita Haksar, Human Rights Lawyering: A Feminist Perspective in Engendering Law (Anita Dhanda et al., eds.), Eastern Book Company, Lucknow, 1999, p.87.
55 56

478 U.S. 186(1986) 123 S. Ct. 2472 (2003)


enabled a conservative US Supreme Court to strike down the anti sodomy law in 2003, expressly overruling its 1986 decision? Cass Sunstien notes that the the decision was possible only because of the ludicrously poor fit between the sodomy prohibition and the society in which the justices live. And if I am correct, Lawrence will have broad implications only if and to the extent that those broad implications receive general public support. For example, the Supreme Court may or may not read Lawrence to require state to recognize gay and lesbian marriages. But if it does so, it will be following public opinion and not leading it. Political and social change was a precondition for Lawrence, whose future reach will depend on the nature and extent of that change.57 Sunstiens argument is that the answer lies in the dramatic change in public opinion since the days of Bowers. It is difficult to find public sympathy with an archaic statute which criminalizes sodomy. It is not to say that public opinion is uniformly sympathetic to gays and lesbians in the USA, but merely to note that while gay marriage , and gays in the military might be issues on which US society is split, the anti sodomy law has lost its public force. Of course this remarkable shift in public opinion has been the result of the sustained advocacy of the gay and lesbian movement in the USA. Perhaps a fascinating vignette which captures the nature of change is the fact that in the Bowers court none of the judges knew anyone who was gay or lesbian where as in the Lawrence court, even the most conservative judge knew someone who was gay or lesbian. This would have naturally had its impact on the decision which was delivered. Further the point about law reform which emerges through Sunstiens analysis is that in the context of sexuality, law fails to deliver justice until and unless there has been preceding work in building a movement. It is only the impact of the movement which results in a momentous decision such as Lawrence vs Texas. Sunstien speculates, that if the US Supreme Court had held in 1980, that the due process clause requires states to recognize same sex marriage, it would (in my view) have been responding to the

Cass Sunstien, What did Lawrence hold ? Of Autonomy, Desuetude, Sexuality, and Marriage, http://www.law.uchicago.edu/Lawecon/index.html,p.5.


right conception of liberty. But it would undoubtedly have produced a large scale social backlash, and very likely a constitutional amendment, that would have made same sex marriage impossible.58

Sec 377 : Whither now?

The question to be answered is in the context of the above discussion is, how then can we approach the question of the reform of sec 377 in the Indian context. The feminist experience with law reform in India along with the analysis of the experience in Sri Lanka and the USA with respect to anti-sodomy law reform leads us to the conclusion that law by itself is not an answer. It is clear that any petition can only be supplementary to the movement. The petition should be a part of a wider socio political struggle.59 This conclusion is further buttressed when we consider that in its response to the Sec 377 petition filed by Naz Foundation, the Government Affidavit literally buried any notion that the state might respond to the carefully calibrated submission. (reading down not repeal, decriminalize private consensual sexual activity between adults ) in a sane and reasonable manner. It seriously questions the notion that if the queer rights movement makes reasonable, sane demands the Government would see the sense of it and acquiesce to the reading down of Sec 377. In fact what the Governments response indicates is a virulent homophobia which is willing to give no quarter to the emerging queer rights movement. The Government response indicates that it sees itself as articulating and reflecting public morality, protecting women and children and keeping closed the flood gates of delinquent behaviour. The protection and defence of Sec 377 emerges as a key Governmental concern and the Government significantly enhances its public role as the guardian of societal morality. Perhaps one should read this response as being a part and parcel of the Hindu rights ideology which is based on demonising and stigmatising difference, be it religious or sexual in nature. The Affidavit signals the
58 59

Ibid. p22. There is a petition filed in the Delhi High Court by Naz Foundation making the case that Sec 377 violates the constitutionally guaranteed protection of equality, privacy and freedom of expression and asking the court to read down Sec 377 so as to exclude consensual adult sex in private from the framework of Sec 377. The dilemmas which are inherent in a legal strategy which is not simultaneously a political strategy emerge strongly as police violence is about the public space where as the legal remedy specifically asks for decriminalizing same sex acts in private.


Hindu Rights deep and unremitting hostility to queer people who have always been defined as aliens and threats to Indian culture and values. As the Affidavit notes, objectively speaking there is no such tolerance to practice of homosexuality/lesbianism in the Indian society. The Governments response outlines the fact that change from above is not an option in sensitive issues such as sexuality. Lobbying for change is not only not going to work, but more importantly it might be a totally misplaced strategy. The question to be answered is that if one sees that there is no necessary link between law and justice and if experiences documented above with the process of legal change demonstrate that it is important be sceptical of the laws ability to deliver justice then what is the way forward? Does one take the line that the legal space needs to be vacated and one needs to concentrate on building the political struggle? Or are there ways of working with the existing petition making it an instrument of socio-political change? It is contended that the law remains an important site of struggle, but one needs to locate legal change as a necessary part of a wider socio-political change. The premise of change with respect to sexuality is as much a change in societal mores as it is about legal change. If that is indeed the case, then there should be a campaign to repeal Sec 377 with the petition forming one part of the proposed change. If this analysis holds the only way forward is to mobilize and convert the petition from a narrow legal struggle to a wider political struggle which takes on board the concerns of the queer community. The petition should be the peg on which on hangs a campaign whose objective is to question the homophobic resilience of Sec 377 in the structures of media, medical establishment and in public opinion. . The legal outcome should not be the focus of the campaign but rather the process of questioning itself. This of course flows from the understanding that since Sec 377 is not purely a legal issue, the way we tackle it cannot be through the court room alone. One cannot expect judges to decide on Sec 377, positively if we have not started a process of public education about queer rights. If we want the courts to give us a decision like Lawrence vs Texas, then there is no way out of the difficult process of building a campaign based on queer visibility. 105

Meetings across the Rainbow

- by anuja mirchandaney From the outside it appeared a conference like any other, held at the Urban Health and Research Training Institute, with the usual seminar halls, panels of speakers, delegate passes, meal coupons and other paraphernalia. Yet The 2nd International Conference on Sexualities, Masculinities and Cultures in S. Asia, held in Bangalore from 9-12 June, brought to the forefront a largely hidden concern in India; the taboo topic of minority sexualities in the context of the dominant paradigm of heterosexism and patriarchy. Sexuality is not a private matter if diverse expressions of it result in violations. Indeed sexuality contrary to modern societal norms, should be celebrated instead of suppressed, was the message that emerged. When asked whether Bangalore was ready for a conference on sexuality, Vinay Chandran co organiser said, My question is, if Bangalore is not ready now, then when will it be ready? Further, he added that Bangalore was more liberal than a lot of other cities, and although organised on a smaller scale, meetings, film festivals dealing with this subject had happened in the past. He said that it was the first time a space was being created where 200 delegates (Researchers; NGOs; Outreach workers; Activists; Policy makers; Educators; Students)- from different parts of south Asia, could come together and speak to each other on sexuality issues. Organisers Vinay Chandran, Executive director, Swabhava and Chandrashekhar Balachandran, Chairman, Dharani Trust, were clear that the conference - a sequel to the first one held at the Deacon University, Melbourne in 1999 would be different. While the one at Melbourne was largely academic, the conference at Bangalore aimed to have different types of discourses, modes of presentation - including performancebased presentations, documentaries and exhibitions, and speakers/delegates from different backgrounds. The organizers plan to institutionalize outcomes of the conference to promote research, visibility and advocacy on key concerns and to celebrate resistances. One of the objectives of the conference was to address the gap between theoretical work and grass root activism in the area of sexualities. And to do that activists as well

as academicians were asked to make presentations on the same themes with the hope that inputs would feed into each others work. Peace is for the women and the weak said Agamemnon, antagonist in Troy, a Hollywood movie based on the epic Iliad that was showing in Bangalore recently. This age-old conceptualization of masculinity that links it implicitly to violence seems to resound in present day India. L. Ramakrishnan, specialist in quantitative methods working with SAATHI, Chennai, speaker at the plenary session on day # 2 on Masculinities and violence gave his explanation. He said that very often men find the need to live up to the hegemonic concept of masculinity. While men come from different socio-economic strata and so the concept would vary, yet many studies have found that the markers of masculinities across various strata are the same. Men are universally expected to be the protector, provider and procreator, and there are other markers such as physical strength, attire and demeanor etc. Studies indicate that those who subscribe to the idea of masculinity where, to be a man means being autonomous, not dependent or answerable to anyone, are the ones who are more prone to violence. He linked the various phobias (homophobia, lesbophobia, transphobia) which took forms ranging from fear, hatred to homicide, to hetrosexism and patriarchy. Violence is seen as a method to control and dominate and women are subjected to violence when they step out of the box that is set for them, and similarly is shown towards homosexuals as they do not conform to the dominant notion of masculinity. He spoke about the need to reconceptualise masculinites without violence. With this background analysis, Ramakrishna proposed that varied activists agendas relating to domestic violence and sexual abuse etc, could be linked with movements for sexual autonomy for people expressing different sexual desires or gender expressions. Think of hijras and the image that immediately comes to mind is masculine persons dressed in saris that accost you on a train journey or at a traffic signal. The fear bred from ignorance is put at ease when one hears of personal narratives, and of people who are trying to survive with dignity in a hostile society. Born as biological males, but with a female psyche, hijras most often under go castration and join a community 107

out of choice. A very small percentage is born hermaphrodite or intersex. The rare few, who can afford it, go in for a sex reassignment surgery. NGOs in general, have entered a new era and the days of top - down charity are fast ceasing. Marginalised groups are themselves taking an active part - if not the central role in working towards improving their conditions. In the south there are vocal transgendered activists who are asserting their human rights. Hijras are denied most rights that citizens take for granted. They cant vote; they are not given treatment in government hospitals. Two issues that one of the speakers at the conference, Priya, a transgendered activist from Tamil nadu has taken up, with some difficulty, in writ petitions before the Chennai High Court. HIV/ AIDS, which reportedly threatens to assume pandemic proportions, has brought in a lot of foreign funds for research and efforts to curtail the spread of this disease in India. The side benefit of such research was that a largely urban audience at the conference became aware of the cultural and social conditions of women in one part of rural Karnataka. Suneeta Krishnan, from University of California, working with Samraksha, Bangalore spoke on "Gender, Sexuality and adolescent health in Karnataka. Their research was conducted in urban low-income communities in Bangalore and rural communities in Koppal district, in North Karnataka where onefifth of the population is in the age group 11-18. In Koppal nearly 2% of the pregnant women between the ages 15-20 years are HIV positive. In their research they found that female sexuality in these areas is protected and controlled by social sanctions etc, particularly after the onset of puberty. Premarital sexual experience is associated with personal and family honour (mariyadi). Parental fears about their daughter's having premarital sex result in the curtailment of the daughter's education and also contribute towards getting them married off early. The average age for marriage in these districts for girls is 17 years. More than 73% of married girls in the age group of 15-20 years have one or more children. In the survey conducted on reproductive knowledge prevailing, revealed that knowledge of menstruation is quite high whereas knowledge relating to diseases related to sexual activity was much lower. If one panel discussed the sexual violence faced by slum women in Mumbai, a street play performance by the same NGO, CORO, brought alive, up close and personal, the adolescent rites of passage of slum youth that condition their thinking as adults. 108

Developed as a way of addressing the sexual anxieties of the youth, the street play gave a birds eye view of the masti (which in this case meant gambling, eve easing, watching blue films etc) and the kinds of information that the youth had access to, that moulded their ideas on sex, sexuality, and women. Exemplifying the democracy and the spirit of mutual sharing at the conference, at the Q & A session that followed the performance, so called Kothis in the audience, while appreciating the excellent performance and good messages the group tried to convey, asked the performers, in doing so was it necessary to denigrate a section of society (referring to themselves)? Kothi is a term used for effeminate homosexuals. It is not only a sexual/ gender identity but also a socio cultural one specific to the South Asian Region. The conference was primarily for people already engaging with some aspect of sexuality in their research/activism etc. But true to Chandrans word, nobody knows everything about sexuality. Clearly this was the case in the talk on Ayurveda and Sexuality by Dr. Sanjay Sharma and Vikas Satyananda. That Ayurveda considers homosexuality a sin, is a myth they said. Ayurveda is a life science dealing with the management and cure of diseases. Ancient texts, the Samhitas acknowledge LGBTs (Lesbian , Gay, Bisexual, and Transgender), and homosexuality is considered as one from many diverse acts of pleasure. In view of this, the wide spread notion that homosexuality is an import from the west in incorrect, Sharma averred. What, however appears to have been imported from the west wholesale is western medicine post-Freud that pathologises homosexuality, said the following speaker, Arvind Narrain, advocate and gay rights activist. His talk was based on a study conducted on the attitudes of medical professionals in Bangalore towards homosexuality. The majority of psychiatrists in India treat homosexuality as an ailment to be cured he said. Narrain, questioned the objectivity and nuetrality of the scientific discourse. He said the job of queer groups today, is to try and depathologize homosexuality and shift it from a medical to a social discourse. In other words, to recognize that it is all about discrimination and not about disease. Speaking after the conference, Chandran elucidated upon the core issue, sexuality rights are a part of the matrix of development. An aspect of sexual violence is that it could result in a complete loss of self esteem, he said (referring in particular to 109

violence faced by homosexuals), and this will have repercussions on other developmental rights, be it the right to education, health, or employment. He asked, How can you expect such a person to be a productive member of society? Which is why celebratory-ness is important. A public register provides that space for celebration; an acknowledgement that sex and sexuality is part of the matrix of development, he said. Discussing the notion of 'Celebrating Sexuality' at the final plenary session of the same name, noted psychiatrist, Shekhar Sheshadhri from NIMHAANS, posed the question, is 'sexuality (of what ever shade) tabled for the public in a celebratory light? Further he asked, in sex and health education how do you table for the child that sexuality is a very positive aspect of the human experience?' He said if we want to retain "celebratory- ness" in sexuality, adult response to children's sexuality is very important. Even in the case of child sexual abuse, if the abuse is not too severe, it is possible to re- conceptualise it, he said, and doing this could have immense therapeutic value for the patient. On the theme 'Celebrating female sexuality', Sandhya Rao, Hengasara Hakina Sangha, said that although the silences in female sexuality have been broken, it has been most often in the context of sexual violation. She rued that there was no 'public register of celebration'. She said that apart from romance in Bollywood terms, which is very public, we are constantly being battered with images of violence, particularly in NGO circles. She declared, 'We need to engage more with the celebratory aspect of sexuality, and unless we do that our debates and discourses on sexuality will be skewed.' Citing an example, she said, 'Art' could be one form of celebration.


The Bababudangiri Dispute

- geetanjali srikantan

History The shrine of Baba Budangiri in Chickmagalur District is an unusual representation of syncrethic culture. Both Hindus and Muslims offer prayers at this shrine which is one of the oldest Sufi shrines in South India. Dada Hayath Meer Khalandar or Baba Budan is also known as Shaikh Abdul Aziz Makki and he is rumoured to have been born in the town of Taif in Saudi Arabia. He is said to have been a companion and contemporary of the Prophet Muhammad and to have joined the Ahl-e-Suffa a group of some four hundred of the Prophets special disciples regarded as the precursors of the Sufis. He is said to have arrived in the seventh century B.C. from west Asia to preach Sufism in India. The cave in which the shrine is located was selected by him for his meditation. The place Dada selected was also believed to be the seat of Dattathreya Swamy, who is said to be the last avatar of Vishnu; he is believed to have vanished from one of the caves to Kashi to be reincarnated in future. Another belief was that Dada Khalandar and Dattathreya Swamy are the same person. There is a story that after clearing the area, Dada decided to settle down for meditation. He needed water to perform his prayers and started digging the ground in front of the place he had selected as his seat of meditation. On finding a perennial spring he thanked god and spent the night in prayers and meditation. Early in the next morning a brahmin and a jangama entered the cave, as per their custom, for worship. Seeing Dada absorbed in meditation they thought that he was the incarnation of Sri Dattthreya Swamy60. Muslims continue to believe that Dada had disappeared from one of the caves to Mecca and Madina, and will in due course appear before the disciples. The shrine dedicated to him is inside this cave and consists of the masnads or seats of Baba Budhan and four of his disciples, Jan Pak Shahid, Malik Tijar Faruqi, Malik Wazir

(Sajjade Nishin, Hazrat Dada Hayat Meer Khalandar, 1979:10) please see Asadi, Muzaffar Karnataka: Threats to Syncrethic Culture The Economic and Political Weekly, March 27-April 2, 1999

Ispahani and Abu Turab Shirazi whom the Hindus regard as the four disciples of Dattatreya. There is a Paduka (slippers) and Nanda Deepa ( lamp) which is also placed in the cave and is also worshipped by the Mujavar. The hagiography of Dada Hayat is extremely hazy, there being conflicting accounts of whether he and Baba Budan are the same person. According to one account Baba Budan and he are the same person. 61 According to another account Baba Budan was one of his closest disciples and introduced coffee to this hilly region, brought from Mocha in west Asia. Baba Budan, whose history is usually traced to Bagdhad, reached Chickmagalur via Malabar and Mangalore. Baba Budan was killed in an ambush near the present cave and is buried along with two other Sufis inside the cave. Interestingly, he is also called Hazrath Syed Meran Baba and also Jan-e-Pak Shaheed. A large number of stories have been constructed around the dargah.62 These stories pertain to the spiritual and healing powers including the power to bestow children, relief to physical disorders, property disputes, etc. This is one of the reasons why the site has become famous. There are stories about how Dada protected a princess who later on came to be known as Sathi Samyukta by Hindus and Mama Jigni by the Muslims. Most important is the story about how the princely state of Mysore was bestowed with an heir to the throne by Dada, and how the maharaja would be able to break the stone laid before the cave. Support to temples, mosques or the shrines were not uncommon in Karnataka. Karnataka had the tradition of a tolerant state system both under princely rule and under the Muslim rulers like Tippu Sultan and Hyder Ali. The syncrethic culture of Bababudangiri63 although unusual is not surprising. The early Dattathreya tradition seems beyond doubt to have been an anti-Brahmanical one, part of the Avadhut tradition that upholds a formless god and condemns caste and Brahmanical rituals. There are many similarities between the figure of Dattathreya and the Sufis in the Deccan. Dattathreya is revered by some Muslims in north Karnataka and southern Maharashtra as Shah Faqir who is also referred to as Shah
61 62

Please see Sikand, Yoginder Hindu- Muslim Syncrethic Shrines in Karnataka , 2001 pgs 5-8 Asadi, Muzaffar Karnataka: Threats to Syncrethic Culture The Economic and Political Weekly, March 27-April 2, 1999 63 Please see Sikand, Yoginder Hindu- Muslim Syncrethic Shrines in Karnataka , 2001 pg 6


Datta Alam Prabhu. The eighteenth century Deccani Sufi Shah Muni whose actual name was Shah Baba was a classic example of the confluence of the Dattathreya and the Muslim Sufi traditions. Although he was a Muslim, his guru was Hindu, one Munindra Swamy a follower of Dattathreya. Recent Confrontations Baba Budan Giri is now a highly contested sacred space with Hindu Right wing groups seeking to From the mid 1980s onwards, militant Hindu groups encouraged by the mass movement launched to destroy the Babri Masjid grew increasingly active throughout Karnataka. In the late 1980s, the Vishwa Hindu Parishad (VHP) and the RSS launched a campaign to liberate the temple of Dattathreya from Muslim control. Datta Jayanthi has been reportedly celebrated since 1984.64 In 1989 amidst tight security and in the face of strong Muslim protest, for the first time a Brahmanical puja was conducted outside the shrine of Baba Budhan by a group of Brahmins affiliated to the VHP.65 After the destruction of the mosque in 1992 the VHP began celebrating an annual three day festival dedicated to Dattathreya at the dargah. In 1998 the campaign by the Hindu Right reached a momentum with rath yatras66 organized to create communal passion. Towards this end, they resorted to the strategy of taking out rath yatras, paralleling Advanis strategy during the Ayodhya issue, from five different places, converging in Chickmagalur one day prior to the Datta Jayanti on December 3. The first rath yatra was flagged off on November 20 from Chickmagalur covering all the mandal panchayats; the second began from Narasobanwadi in Raibagh taluk of Belgaum on November 25 covering Belgaum, Uttar Kannada, Mangalore and Shimoga. The third rath yatra started from Gangapura in Gulbarga district on November 27 and passed through the districts of Gulbarga, Bijapur, Bagalkot, Dharwad, Hubli, Davanagere and Shimoga; the fourth began from Huragadde in Raichur covering Bellary and the last was flagged off from Melkote on December 1 passing through Hassan and Mandya. In addition, the Bajrang Dal being the most vocal, threatened to send suicide squads.

64 65

PUCL-Karnataka Bababudangiri and communal situation in Chickmagalur town, 2000 Sikand, Yoginder Shared Hindu-Muslim Shrines in Karantaka : Challenges to Liminality pgs 166-186 in Ahmed, Imtiaz, Reifield, Helmut Lived Islam in South Asia: Adaptation, Accommodation and Conflict Social Science Press, new Delhi, 2004 66 Asadi, Muzaffar Karnataka: Threats to Syncrethic Culture The Economic and Political Weekly, March 27-April 2, 1999


A massive crowd of Hindutva activists gathered at the dargah in early December 1998. They tore down the green flags decorated with Islamic motifs and replaced them with saffron flags. A three headed idol purporting to be that of Dattathreya was forcibly taken inside the shrine and worshipped. After the puja, a rally was held wherein Hindu leaders demanded that the shrine be handed over to Hindus, that the Muslim custodian be replaced by a Hindu priest, that Hindu style puja be conducted at the shrine and that the Sufi Urs festival be stopped with immediate effect. These efforts by Hindutva activists have succeeded in causing communal tension in Chickmagalur. Between January 6-10 of the year 2000 there were communal disturbances in Chikamagalur and other surrounding areas. The communal disturbances started off on the issue of garlanding the idols of Rama, Seeta, Laxmana and Hanumantha with chappals, on the night of January 4 in the temple of Lord Hanuman in the Vijayapura Extension of Chikamagalur. The temple incident was used as a pretext to attack the Muslims living elsewhere in the town. In Basavanhalli, the temporary make-shift mosque was destroyed and the Quran torn by the police and lumpen elements. The police then arrested 23 people, mainly poor Muslims and Hindus from the Basavanhalli slum area, none of whom had any criminal records. It is interesting to note that the police had arrested more than 50 people of whom the majority were Muslims; however not a single member of the Sangh Parivar was arrested. Even though some of the leaders are openly and defiantly moving around, the police has shown no interest to arrest nor to file chargesheets against them Many of them were arrested indiscriminately and the houses were raided in the absence of men folk. Women were beaten up and their mangalsutras were taken away. In one particular instance, a girl child's face was wounded with a police rifle bayonet causing a permanent facial disfigurement. The police did not spare small children and even a diabetic patient who suffered from chronic cellulitis. The police deprived the arrested Muslims the right to celebrate Ramzan, which showed their communal bias. The efforts of the Hindutva activists have not stopped. The festival of Datta Jayanthi is celebrated every year at the Dargah and the Muslim custodian of the shrine is barred entry into the dargah on those days. 114

Legal Aspects The Waqf Board Cases The origins of this controversy have its roots in the legal dispute around the shrine. There was an attempt to take over the shrine by the Karnataka Waqf Board. The cause of action for the litigation that arose around the shrine was the order issued by the Karnataka Government numbered SL 26CWF67 dated 6/4/1973. This order stated that the administration of the Muslim Muzrai Waqfs be transferred to the control and management of the Board of Waqfs (the Peeta was not mentioned in the order). The Dattathreyaswamy Peeta and properties attached to it were also published in the Gazette dated 14/10/64 as per the notification M&B 19/10/64 dated 3/10/64 as one of the Waqf properties wherein one Ghouse Mohideen was styled as Muthavalli of the said Waqf by the Waqf Board. Subsequently the Commissioner issued orders to the Tahsildar that the control and management of the Peeta be handed over to the Karnataka Waqf Board. The Waqf Board then seized the Paduka and Nanda Deepa in the Peeta around March 1976, which were kept for worship thereby preventing Hindu devotees from offering or performing the pooja. On representation of the Hindus and Muslims and a meeting was held by the Deputy Commissioner of Chickmagalur District and the leaders of Chickmagalur town. the Tahsildar verified the same and the Paduka and nandadeepa were restored to the original position. On learning about the Gazette Notification making the peeta a waaf property, BC Nagaraja Rao and C Chandrasekhar who were Hindu devotees filed a suit against the Government of Karnataka, The Karnataka State Board of Waqfs, The Commissioner of Religious and Charitable Endowments, Sajjada Nashin Guru of Sree Dattatreya Swami Peetha on It was contended by them that the Guru Dattathreyaswamy Peetha is not a Muslim Waqf as it is not dedicated by any person professing Islamic faith for pious and religious purpose the institution being worshipped by both Hindus and Muslims alike and being a major Muzrai institution which was under the control and management of the Government and having been recognized as a Holy Place of both Hindus and Muslims by the Government from time immemorial and detailed by 115

Notifications G.O 1235-47 dated 24/8/1906, G.O 2027.30 and Muz 33-10 dated 21/12/1907 and G.O 2481-7, Muz 189-12-19 dated 15/4/1916 as found in the Muzrai Manual neither the disciples nor devotees of a particular religion can claim exclusive right in or to or worship at the said institution. The institution is not a Waqf Property and could not be legally included in the list of Waqfs. It was also contended that the Sajjada Nashin is the sole guru of the Peeta and that there was no proper enquiry conducted by the Waqf Board. The relief that was asked for was that there should be no interference with the rights of worship of the Hindus. The court ruled as follows: It was held by the court that Sri Guru Dattathreyaswamy Peeta is an unique institution where both Hindus and Mohammedans offer their prayers to a common deity, but in different names, that the Hindus worship the Peeta as Guru Dattathreya Swamy and the Mohammedans as the Dargah of Dada Hayath Khalandar and the same is also recognized by the State government as Guru Dattathreyaswamy Bababudanswamys Dargah a major Muzrai Institution receiving grants from the Government and the same was under the control and management of the third defendant as per the Mysore Religious Charitable Institutions Act, 1927 The court also went into details of the rituals which were syncrethic in nature such as the performance of pooja to the paduka and deepa by offering flowers and coconuts and burning holy camphor. The annual Urs held at the Peeta was not according to the Mohammedan calendar but will be held three days after Holi according to the Hindu calendar. In this festival, the Gandha or the sandalwood paste is taken in procession from Athigundi to the Peeta accompanied by Hindu musical instruments such as kombu kahale and Tamate. The court went into the relevant portion of the Muzrai Manual on the status of the institution which stated that Guru Dattathreya Bababudanswamys Dargah on the Bababudan Hills ,in Chickmagalur taluk is an ancient and important institution held in high esteem by Hindus and Mohammedans alike and is visited by a large number of pilgrims from all parts of India etc.


Some of the questions raised was whether the Peeta was a religious institution belonging to both the Hindus and Muslims? Is the Peeta in the list of Waqf properties? Does the court have jurisdiction and is the suit barred by limitation? The court then went into the question as to whether the Peeta was in the list of waqf properties. An order had been issued by the Karnataka Government which was SL 26CWF67 dated 6/4/1973 that the administration of the Muslim Muzrai Waqfs be transferred to the control and management of the Board of Waqfs. It was clear that the order did not mention the Peeta. Despite this the Commissioner issued orders to the Tahsildar that the control and management of the Peeta be handed over to the Karnataka Waqf Board. The Commissioner for Endowments had also shown that during the survey of waqf of Chickmagalur District that the property has been shown as waqf property and that it has been published in the Gazette of October, 1964 and under Section 5(2) of the Muslim Waqf Act. There was no doubt that the peeta has been included in the list of waqfs as a waqf property. The court relied on Haji Mohammad Ali Khan v The Board of Waqfs67 which showed that both Hindus and Muslims have a right to worship and that the period of limitation provided under Section 6 (2) of the Waqf Act is not applicable as it will not bind a stranger who is in possession of the property because he happens to be a person affected by the publication of the list of waqfs. A case of jurisdiction is confined to matters of administration of waqfs and not adjudication of questions of title. The Act did not invest the Board of Waqfs with the power to decide whether a property belonged to a waqf or not and more so when a property belonged to a waqf or not. The court finally declared the following: (i) (ii) that the institution is a religious institution being a holy place of worship belonging to and being worshipped by both Hindus and Muslims, and that it cannot constitute a waqf property and the Waqf Board has no right of control and management over the said institution. It is not a waqf property and the inclusion of the property in the list of waqfs is improper and illegal and such inclusion will not affect the rights of the Hindus and

AIR 1979 SC 289


that the Waqf Board has no right of control and management over the said institution. (iii) The Waqf board is restrained through a permanent injunction not to interfere with the Hindus rights The matter did not end there and there was an appeal filed by the Karnataka Waqf Board on this judgment on issues such as whether the suit was barred by time and whether notice had been properly served. The court reiterated the observations with respect to a stranger who is a non Muslim and in possession of the property cannot be bound by the publication of the list of waqfs. The courts observations on secularism vis--vis pluralism is relevant in this context: We cannot part with this judgment without placing on record our happiness and appreciation of the spirit of brotherhood among the Muslims and Hindus who offer prayer at this darga or peeta. The drab slogan we hear else where in this country day in and day out that Ram and Rahim or Ishwar and Allah is one without practicing the faith in its true spirit ; finds its true translation into concrete action and practice in this holy shrine. What is more heartening is the attitude of the ..Sajjada Nashin who is said to be a Muslim not to challenge the averments of his Hindu brethren the plaintiffs that this shrine belongs to both Hindus and Muslims. Equally heartening is the spirit of Hindu plaintiffs in not claiming the shrine as exclusively belonging to the Hindus for the reason that there are Paduke and Nanda deepa maintained and protected since ancient times and it is known also known as Guru Dattathreya Peeta. It is only the Waqf Board that wants to lay claim on it taking advantage of its own unilateral acts in 1964 without the Muslim community people offering prayer since hundreds of years making any claim on its as its exclusive shrine. The suit institution the guru Dattathreya Bababudanswamy stands aloft as a shining example of true secularism in this world divided so sharply on narrow caste , communal or religious considerations. Further developments


The developments that took place above needs to be read in parallel with other suits that were filed which show the growing communalization of the ethos around the shrine. These were orders dated August 29, 1983, January 10, 1984 passed by the Commissioner of religious and charitable Endowments, and the Assistant Commissioner. These orders directed that that the ground rent should be collected at a certain rate in respect of several shops put up during the course of Urs of Sri Guru Dattatreya Peetha and the amount be deposited in the joint name of the Tahsildar and the head of the Muzrai institution in question. A suit was then filed by the Syed Peer Shakadri who is the religious head of the institution who argued that these orders interfere with the right of management of the institution in question. It was contended that these orders were in the interest of the institution in question and do not in any way interfere with the right of the management of the Sajjada Nashin as no property is being taken away from him. The court referred to the earlier judgment stating that the institution belonged to both the Hindus and Muslims. The State Government has directed that on more than one occasion that the institution should be restored to the Sajjada Nashin and that it should be administered as per the practice that was prevailing prior to June 1975. The court also said that the orders cannot be sustained without determining the practice that was prevailing prior to June 1975. The court then directed the Commissioner of Religious and Charitable Endowments, to make an enquiry e about the matter through the Muzrai officer regarding the practice that was prevailing prior to June 1975 in respect of the management of its affairs. On such decision it shall be open to the Shakadri to challenge the same. Decision by the Court of the Commissioner of Religious and Charitable Endowments in Karnataka, Bangalore The court went into what was the cause of action i.e. the order No DVS.CR 153/82-8 dated 22/3/1983 by the Assistant commissioner who after containing instructions of the Deputy Commissioner issued in his No. A5DVS .CR 19/82-83 dated 14/3/1983. In this order with a view to avoid discontentment and dispute with regard to the putting up of shops to maintain sufficient facilities, and to maintain proper sanitation rates of rent were fixed in respect of the shops at the time of the annual festival at the


annual Urs. It also referred to the earlier decree and the writ petition being filed by the Sajjada and the directive given by the court. The court then went into the report of the Deputy Commissioner who was also the District Muzrai officer. The officer had conducted enquiry and inspected the institution and sent a report also providing details of the various rituals that have been performed. (1) The shrine was described as having two caves on either side of the main Peetha /Darga in the shrine. The main Peetha is known as Hazrath Dada Hayath Meer Khalandar Darga/Sree guru Dattatreya Peetha. (2) The description of the shrine included dome Deepas in the right side corner of the main Peeta. On the left side of the wall there are a pair of Padukas and a Nanda Deepa. The Shakadri and members of both communities accept that it is the Paduke of Dattatreya. (3) With respect to the rituals daily pooja is performed by the Muzhavar who puts flowers to the Paduke, lights the Nanda Deepa and gives the Chasma or Tabaru or Teertham to the devotees of both communities. (4) The gurus of the different mutts are taken inside the cave gate (5) The Muzhawar takes Lobhana and performs religious rituals between 7.00 p.m. and 9.00 p.m. Certain practices such as offering of flowers, lighting the Nanda deepa, giving theertha, breaking of coconuts etc form part of these rituals. Regarding the construction of shops at the time of the jatra, the Deputy Commissioner had reported that the Sajjada was said to be managing these affairs prior to 1975.The Deputy commissioner in one more report dated 7/1/1988 has stated that there was no dispute regarding the management of the institution by the Shakadri till 1975(when there was an attempt to take over the institution by the Waqf Board. The order of the Assistant Commissioner was set aside and the position before 1975 required to be 120

restored. The arrangements made by the local Muzrai officers may continue and the Sajjada may be associated with all further functions including Urs. Litigation pursuant to the activities of the Hindu Right As mentioned earlier the Hindu Right has not been slow in taking advantage of the dispute around the shrine. The communalization of the area had led to the formation of a Guru Dattathreya Peeta Devasthana Samvardhana Samiti. An examination of the trust deed of this organisation interestingly showed the author of the trust to be in Bangalore suggesting that this initiative was not local in its origin. The objects of the trust included safeguarding and protecting the Peeta, performance of poojas and bhajans, the establishment of suitable maths, temples etc. A writ petition was filed by this organization around March 2001,68 claiming that the dargah is a cave temple is an ancient one in which Guru Dattathreyaswamy a Hindu saint who is believed to be an incarnation of Lord Vishnu performed penance and resided, practicing and preaching vedantha philosophies During the regime of Hyder Ali, an Ismail Shah Qadri who was the fakir at Srirangapatna was appointed as an manager and the institution passed on to Islamic hands. The petition also referred to the earlier dispute and the decree passed by the district court against the Waqf Board trying to show that Hindu devotees were not allowed to enter into the shrine. The petition also alleged that many alterations were made to the cave temple and that there was misappropriation of the wealth of the shrine by the Sajjada Nashin and its mismanagement. The petition also referred to the various reports that were sent to the Deputy Commission referring to the irregularities in management .The petition finally asked for certain reliefs which was to allow them to take over the management of the Devasthana and allow them to perform poojas and bhajans and other festivals and rituals. The courts response to this was that both Muslims and Hindus are allowed to enter into the dargah and they are permitted to perform pooja and that there is a civil courts decree in that respect and that in the event of irregularities in the management of the institution the concerned authority needs to take action.


High court Order dated March 15, 2001


Efforts were made to contest the Sangh Parivars actions legally. 69A writ petition was filed by a group of Muslims requesting declaration that the Sajjada Nashin was the head of the institution and had the right to manage the institution in a manner beneficial to its devotees and that Hindu devotees had a right to worship and participate in the rituals of the organization. The court dismissed the petition on the ground that it cannot go into the facts or decide the rights of either party and that it could only issue directions if there is a gross violation of fundamental rights. It has been surprising that despite the decision of the high court stating that the institution should be administered as per the practices before 1975, the state government has allowed the celebration of Datta Jayanthi for the past eight years. The district administration has acted in connivance with the Sangh Parivar, participating

in the Datta Homa. Last year in December 2003, despite widespread protests by

activists Datta Jayanthi was celebrated amidst much security.71 This was also despite efforts made legally to stop the celebrations by a writ petition in the Karnataka high court filed by the Shakadri and seeking directions that the practices prior to 1975 should be maintained. The High Court dismissed the application observing that All the parties irrespective of religious faiths and groups to which they belong will cooperate in celebrating the Datta Jayanthi celebrations and they will cooperate with the authorities of the State in maintaining peace and harmony.72 Some main issues: Right to religious worship how to contest this the RSS can use the fundamental right to worship to install the idol. Key questions 1. What is the status of the dargah under the Karnataka Religious and Charitable Endowments Act, 1997 2. What happened pursuant to the letters written about mismanagement by the Shakadri? What did the committee find if there was one ? 3. What is the status of the Shakadri is he recognized by the government?

69 70

High Court order dated June 10 , 2002 Please see Saffron Splash on Amity, Deccan Herald, December 5, 2003 and 71 Please see Tight Security ensures peaceful Datta Jayanthi Deccan Herald, December 8, 2003 72 Please see Interim Plea on Datta Jayanthi dismissed


A Fact finding visit to Chickabettahalli on October 3, 2004

- geetanjali srikantan

A fact finding was organised by the Social Action Committee. The team consisted of students from Samvada, Prasad from the Dalit Christian Federation, Lakshman from the Jan Vinashana Sanghatana, Qasim and James from the Social Action Committee and myself from ALF to look into the causes of the communal violence around Chickbettahalli a village north of Yehalanka near Bangalore. The findings in this report are based on previous findings by Samvada in the meeting held on the same day and interviews with some of the affected people.

Chickbettahalli is a tiny village consisting of around 4000 people with around 2500 houses , 90% of them are Muslims the remaining are Dalits and a few Kurubas. There has been a slow communalisation of the area since 1992 when Hindu right wing parties began to organize the Ganesh processions in order to attempt to arouse communal feelings among the people. Pramod Mutalik the BJP leader was instrumental in organsing these processions. Since 1997 onwards the processions stopped due to some trouble, however they began again in 2001 due to the initiatives of the RSS and the Bajrang Dal who had shakhas around the area. There has been some history of trouble in the area particularly in the Attur Layout and Yehalanka. According to Samvada who has done some work in this issue there have been many economic reasons behind this issue. The Muslims control most of the quarry near the village which has made many upper caste Gowdas upset making them look for ways on making the Muslims economically weak. The incident took place on September 26, 2004, around 6 p.m. The Ganesh procession was organized by the RSS/BD who were very active in the neighbouring villages i.e Doddabettahalli, Vidyaranyapura, Attur Layout, Lakshmipuram, Muddanahalli , Adityanagar etc. ( around 18-20 villages) The procession began in these villages with many prominent figures such as Pramod Mutalik and a vokkaliga swami who were present and made inciteful speeches. The procession passed Chickbettahalli for

immersion at the Veer Sagar a water body nearby. While the last batch of idols were being immersed violence broke out, slippers being flung into a nearby mosque. The procession took three routes with approximately 6000 people being involved. There were trained RSS/BD activists present. When the violence broke out the police also made arrests there were some youths arrested, it was suspected that one of them had participated in the Gujarat riots.

Interviews and impressions

We reached Chickbettahalli around 3 p.m. We had to pass Doddabetthalli on the way which appeared to be tense as well. Shops did not appear to be open and there were saffron flags flying all about. There were a few police vans and some policemen. We later learnt that the area had been placed under curfew. The interviews with the affected persons took place in the house of a woman called Gulnath. We first spoke to Maqbool Ahmed who was present in the mosque when the incident happened. His narrative is as follows:

Maqbool Ahmed, 51
I was present in the mosque. Certain people came inside the mosque and began hurling slippers and stones. I ran outside the mosque where the police began a lathi charge. I was injured in the fray being beaten by both the Police and the arsonists. I sustained injuries i.e bleeding on my head, and on my arms There were 4 or 5 people who were also there at the mosque. They were Syed Anwar and Hasan who sustained injuries. The others were Allah Baksh and Shaikh Babu. The incident lasted ten minutes. The DIG came to visit the spot. The Commissioner also visited the spot at night and also the next day We then spoke to Gulnath and some other women who were present. It emerged that a number of women and youth had fled. Apparently iIt was said to the women and children that what has happened in Gujarat will happen in Chickbettahalli. All the women had subsequently fled into hiding. There were 6 youths who had been missing for 10 days. There were two of them who had just returned i.e Shabir and Chotta whom we spoke to. There were also attacks on 124

20 Muslim homes near the quarry. The women and children were mainly at home and they were threatened by the attackers. The attackers burnt lorries, a scooter and tried to stone and set fire to the houses. From Chottas narrative it emerged that there were also attacks by 50 100 RSS youth on 50 Muslim homes near the Panchayat office and the bus stand. There was no action by the police. Around 10 lorries were broken and also the autos. The attackers specifically targeted the Muslim homes and property and left the others intact. Shabirs narrative was that he came to take away the women and children and was beaten by the attackers. He had fled into hiding and had just come back today. We also met a representative from the Janatha Dal party who had tried to use political influence to stop the violence. On hearing about the incident he took immediate action by calling the police. He also spoke to the Deputy Commissioner of Police as well as the Commisioner of Police Mariswamy who visited the spot. He informed local Muslim leaders such as Jaffer Sharief and CM Ibhrahim and also had a letter written to Sangliana who did not bother to reply.

It appeared that the poor Muslim homes had been the targets in this violence. It also appeared that the causes of such violence had familiar ingredients such as usage of sacred symbols, police inaction and collusion and the targeting of certain classes who were disempowered. It was interesting to note that earlier both Muslims and Dalits would take out their own Ganesh Procession but now such symbolism was being used differently. One of the activists working in the area seemed to have a sense of fear that there would be fresh attacks and they would be targets of the police. The mission was therefore aborted partially, we were unable to go to the scene of the violence.


Religious freedom, secularism and - some problems

- geetanjali srikantan Situation 1 Three children belonging to the Jehovahs Witnesses sect were expelled from school because they failed to salute the national flag on Independence Day. They had refused to salute the flag on the ground that it would violate the tenets of their religion. People who belong to the Jehovah Witnesses Sect believe that saluting the flag would amount to. Do you think the decision of the headmaster of the school is correct in the context of protecting religious freedom ? Situation 2 During the Gujarat riots a number of people visited Gujarat to document the riots and provide relief to survivors. Some of them were film makers who managed to get actual footage of the riots and interviews with survivors. On returning from Gujarat they decided to hold public screenings of their films in order to create awareness. The Government decided to stop the screenings on the ground that this would incite violence. What do you think of the Governments decision? Situation 3 In its educational policy review the Government makes a decision to completely revamp the syllabus in all schools. Some of the chief features of the syllabus are 1) teachings of the Vedas and the Upanishads as a compulsory subject 2) compulsory teaching of Sanskrit 3) the introduction of Vedic mathemathics as a compulsory subject The history text books were also changed to include some of the following passages Lakhs of foreigners came during these thousands of years but they all suffered humiliating defeat. There were some whom we digested. When we were disunited, we failed to recognise who were our own and who were foreigners, then we were not able to digest them. We were not able even to digest those who for some compulsion had separated from us. Mughals, Pathans and Christians are today some of these people

Islam spread in India solely by way of the sword. The Muslims came to India with the sword in one hand and the Quran in the other. Numberless Hindus were forcibly converted to Islam on the point of the sword. This struggle for freedom became a religious war, Numerous sacrifices were made in the name of religion. We went on winning one battle after another. We did not let the foreign rulers settle down to rule, but we were not able to reconvert the separated brothers to Hinduism These textbooks were challenged as being violative of the principle of secularism by several organizations. What do you think? Situation 4 Three girls were expelled from their school for wearing headscarves. The headmaster expelled them on the ground that no religious symbols could be permitted in a school run by the Government. The girls believed that they had the right to wear the headscarf as practice of their religion. Do you think that the decision of the headmaster is correct in the context of protecting religious freedom?


Pluralism working questions

- geetanjali srikantan

What is pluralism? It means diversity, difference ..religious, linguistic tribal, caste.. Diversity of tradition, rituals, customs, Syncrethic culture How does one preserve pluralism / By cultivating attitudes of tolerance towards other cultures Does the State have an obligation to preserve pluralism? Pluralism through secularism. What is secularism? Secularism means respecting all religions and protecting religious freedom and cultural difference. [Is secularism anti religion?] How is India a secular state? Secularism was the guiding principle of the anti colonial struggle. Leaders of the Freedom struggle did not favour one religion over the other. It was recognized as an essential element of the platform for the multireligious, polyethnic, multicultural nature of the Indian subcontinent. The Preamble of the Constitution states that secularism is a fundamental principle. This means that the state has no particular religion of its own. The State cannot discriminate between one religion and the other or between the followers of each religion. This means that the State is neutral Does secularism result in loss of identity? Secularism respects the faith and identity of the people. It does not mean a state where religion is discouraged. It means freedom of religion and conscience including freedom of those who may have no religion. It means free play of all religions subject to it not interfering with the basis conceptions of the state.

What are the other principles safeguarding pluralism? There are various provisions in the Constitution of India providing various kinds of rights to preserve pluralism? The right to practice religion Example the right to go to a church, the right to carry out special rituals/ceremonies at home or outside, The right to profess religion The right to call one self a member of a particular religion The right to propagate religion The right to religious conversion, the right to spread the beliefs of ones particular religion Are these restricted in any way? These are subject to public order, morality and health. They do not affect or destroy the state in any way possible. In order to preserve this all religious denominations have the right to open and maintain institutions for religious and charitable purpose Does secularism result in favouring minorities? One needs to distinguish between policies of the government and what is laid down in the Constitution.


Cinematic Citizenship and the Illegal City

Lawrence Liang Alternative Law Forum Bangalore India

======== Draft for Discussion Images Of Justice: Cinema, Law And The State In Comparative Perspective Obermann Center for Advanced Studies Summer 2004 Research Seminar

(This paper engages with ongoing conversations with friends at Sarai, New Delhi and CSCS, Bangalore and all usual disclaimers apply)

Introduction Even within the bourgeoning filed of law and culture, law and cinema has been a relatively marginal field of enquiry. Beginning its career as an enquiry into the depiction of law and the legal process in popular culture, the area has thus far been dominated by discussions on American popular culture in general and Hollywood in particular. Focusing on a limited question of the impact of popular culture on legal imagination, the scholarship in this area has been tied itself down to a narrow domain of film studies, namely textual and narrative analysis.73 Admittedly the question of how popular cinema shapes popular legal consciousness is by itself an important one, but it will be the argument of this paper that it is certainly not the only question nor even the most important one to ask of the relationship between law and cinema. In fact it would be an anachronistic tragedy if we were restrict ourselves, while defining the area, to the particular cinematic experience of how films area read. The reason I term this an anachronistic tragedy is that the very object of film studies has changed dramatically over the past few years, to the extent that there may not exist any stable definition of cinema any longer. Bhrigupati Singh for instance provocatively argues that the object which till recently could be referred to as cinema may not quite exist any longer. It has changed completely in its shape, form and mode of dispersal. Taking the case of Kabhi Khushi Kabhi Gam K3G (Sometimes happiness, sometimes sadness), a Bollywood blockbuster of 2002, Singh says that the star of the film Sharukh Khan flows uninterrupted and simultaneous into to a Pepsi ad on Star Plus, a rerun of Baazigar (Gambler) on Sony TV into an Ericsson ad in The Times of India, only to reappear on the upper left corner of the MSN Hotmail India screensaver. Amitabh Bachan plays an ageing corporate scion and benevolently distributes money and a few minutes of fame to the Indian middle class on Kaun Banega Crorepati, the Indian version of Who wants to be a millionaire?. K3G the film, itself appears in only a fraction of the cinema halls in any of the big Indian cities on the day of its release, simultaneously screened with a shaky and uncertain print on TV by various cablewallahs, flooding various electronic bazaars soon after as an easily copied VCD. 74 It is however not the mere dramatic change in the media commodity called cinema that has promoted the movement in film studies away from a purely speculative analysis of the texts and the readings that it offers. The radical transformation of the media commodity perhaps marks the latest crisis of film studies in constructing the object of its enquiry. Over the past few years, there has emerged a shift in the register of film studies, moving away from the idea of cinema as a purely textual object to being a socially embedded set of practices.75 This shift cannot be contained by the older fiction of cinema as a formal text and the move is now more towards its fictive quality where the object resides alongside a history of spaces, technologies,
73 See generally, Paul Bergman & Michael Asimov. Reel Justice: The courtroom goes to the movies, (Kansas:Universal press, 1996)., John Denvir, Legal Reelism: Movies as legal texts, (Texas: Univ. of Illinois Press, 1996)., as theoretical attempts at defining the filed, and Carolyn Patty Blum, . Images of lawyering and political activism in In the name of the father, 30 USFL.Rev. 1065, Richard Sherwin, Cape Fear : Laws inversion of cathartic Justice, 30 USFL. Rev 1023, as examples of the use of the Representation of law in cinema approach 74 Bhrigupati Singh, The Problem, Seminar, No. 525, May, 2003: Unsettling Cinema 75 Ibid.


languages, labour and property. This move, arguable does not negate the literal / aesthetics practices of reading a film but the practices of film criticism or the theoretical textual analysis of the film appears as one among several other historically and socially located forms of commentary, so the movement necessarily entails a movement from a set of formal questions asked of the properties of film, spectatorship etc to reformulating a set of questions and concerns arising form various disciplines from politics, anthropology, history, law etc on the experience and object called cinema. While it would be beyond the scope of this paper to map out the various ways in which film studies has moved beyond the question of textual analysis, I will for the purposes of this paper examine one significant shift in the allegorical register of film studies, namely the movement towards a more serious engagement with the place of cinema in the experience of the urban or the movement of cinema from the screen to the street, both in terms of a spatial move as well as a technological one, where cinema finds itself circulating in the form of the cheap, easily reproduced illegal media commodity. This move opens up the domain in a manner which was not possible earlier, as it enables and creates varied entry points for other disciplinary enquiries into the nature of film. Till the time that the question of film studies was interested in the formal properties of film76 the ability to create multiple entry points into the experience of cinema was a limited one, and one would have had to restrict oneself to addressing questions framed largely upon the question of representation. By shifting the focus from representation for instance, to the experience of cinema in the context of the urban, the object of enquiry has no choice but to contend with the over lapping, layered and deeply conflicting histories of the city, in which legality emerges as a critical component. The aim of this paper will therefore be to make a critical intervention in the law and cinema debate to push the terrains of the debate beyond the question of content analysis and examine what it would mean to provide an account of the complex relationship between law and cinema as it traverses the inter connected trajectories of space/ carriage and content. By looking at histories of the spatial regulation of cinema and linking it to a broader history of cinema and the experience of the public sphere in India, I will argue that cinema has always had an edgy relationship with law, and try and locate how this edgy illegality may actually have a lot to say about the larger questions of citizenship, democracy and understanding the complex world of participative illegality in India. I will then link this to the cultural representation of this form of participative illegality in cinematic terms and finally look at what this then means for an understanding in the contemporary changes in the circulation of the illegal media commodity. Admittedly, this paper in the nature of charting out in a speculative manner some of the ways in which we can push the terms of the law and cinema debate to a slightly more unstable place.


Note that I use the term formal properties not to restrict myself to formalism within film studies. Even the movements that have moved away from formalism in film studies address a question which would still be one intrinsically related to cinema, whereas a discipline like anthropology or philosophy could have a very different kind of question which it arrives to film as an answer for.


Spatial Dimension of cinema

The first significant move in film studies away from what was happening on the screen takes place in the study of the conditions under which film came to be viewed in the particular space of the cinema hall, the social histories behind practices of spectatorship and the politics of exhibition. Christine Geraghty for instance argues that Studying cinema is not just a question of studying films, nor indeed the institutions, which produce the films and the economic structures, which sustain them. Studying how we watch films - in multiplexes, on video, in theme parks, on television - is an important part of understanding what films mean within a culture and how they fit into the broader range of entertainment activities which might be on offer to audiences. Studies of cinema architecture, of patterns of film distribution and screening, of audience responses can help us build a picture which is richer than the cinema studies model which tends to centre on the isolated spectator gazing at the screen. 77 While this is a significant shift in itself, it could also be argued that the shift still takes place within the narrow confines of what may be primarily termed as cinematic spaces. But the very idea of a cinematic space is itself rendered meaningless if we take into account the diversity of media spaces that exist (the neighborhood video library, the cable guy, illegal media markets). As Ravi Vasudevan argues let us consider the cinema as a more matter of fact everyday space: composed of the hall, its internal organization of foyer, auditorium, seating and the projected film, and its public presence, as in its facade, advertisements, marquees, hoardings. And let us see this space in relation to a broader space, in the market, near factories, schools, office blocks, in a mall, in residential areas; and how it is located in the depth of this space or on its margins, near main arterial thoroughfares, linking one space to another through transportation.78 Thus while the experience inside the hall may be a distinctive one, it is also a continuous one with the spaces mentioned. There can therefore be no distinct account of cinema or cinematic spaces, which is not at the same time an account of the history of the city, of the experiences of modernity and of conflictual practices that define the occupation of these spaces. Furthermore this spatial and technological history of cinema cannot be seen only in terms of an attempt to supplement the discipline of film studies but forces us to reexamine the traditional assumptions and questions. Stephen Hughes, speaking on the history of exhibition says It is not that exhibition is just a missing piece in the history of cinema in India that can be added on to provide balance to conventional accounts. Rather, once exhibition is taken as a necessary part of film history, we must rethink how we construct Indian cinema as an object of study79 The movement from an examination of cinematic spaces to a larger idea of cinematic practices may entail a shift in the focus of cinema as a discreet spatial practice to engaging with a larger spatial history, which foregrounds the importance of the space in relation to the larger histories of the state and the public sphere. A history of spectatorship for instance does not merely provide us with a way of engaging with

Christine Geraghty, Cinema as a social space: understanding cinema-going in Britain, 1947-63, available at http://www.sarai.net/mediacity/filmcity/essays/cinema_as_socialspace.htm
78 79

Ravi Vasudevan, Cinema in urban space, Seminar, No. 525, May, 2003: Unsettling Cinema Stephen Hughes, Pride of Place, Seminar, No. 525, May, 2003: Unsettling Cinema


what people see, and how people see but also with stories of crowds, their interaction with each other, with the space that the film was screened in and how this has a bearing on their interaction with the screen. It also involves a history of urban regulation and tactical maneuver, the reinvention of technological formats and social selves80. There is no stability to the practice of film watching as it is tied to the larger history of social space, and ongoing histories of theaters in New Delhi for instance narrate a complex biographies of theaters that are closely related to the larger histories of the state, of the economy and of shifting aspirations and desires.81 Ravi Vasudevan argues that The spatial coordinates of the cinema move through a series of registers. The cinema is defined by local spaces, with their own logic of social distinction; it has more fluid linkages to audience congregation as the city, its transport networks and forms of mobility undergo change; and it develops in an interactive relationship to market and consumer practices, ranging from the bazaar through to the mall. Finally, and most complexly, the film is defined by networks, of distribution and exhibition, and those arising from the contemporary deployment of technological formats for copying, distribution and delivery. An engagement with the space of the cinema does not resolve the problems we had started out with: how to reconcile a social history with a history of film interpretation and cinema experience. Nevertheless, it provides a significant entry point for researching the question of experience, posing as it does the linkages between the cinema, the rhythms of everyday life and the experience of space. There are indications here that the particular dispositions of energy, attention and distraction, the key features of tactility and of perception, may be crucially organized in the relations between the sequestered spaces of the cinema and those outside. 82 My starting point in developing an argument about how spatial practices around cinema influences the relationship between law and cinema is curiously a story about censorship, which would traditionally be seen as a content problem. And as with any other legal story, after the initial excavation one finds what one least expects. Any discussion on censorship is generally seen as a discussion of content, and justifiably so. However I would like to use the history of the Cinematograph Act in India to demonstrate through it, the hidden spatial history of censorship. The Cinematograph Act enacted in 1918 provides for the establishment of the censor board, and no film can be released in India without the grant of a censor certificate by this board. The allencompassing power of the censor board range form a determination of public order, sexual morality and national interest. In many ways the censor board always leaves its imprints on the final commodity that we call a film, hovering around scenes that are missing because they have been cut, interrupted acts of passion, dialogues that become a beep, kisses that are replaced by the conjugal meeting of flowers and birds. 83 If Frank Capra made his mark in the history of film trivia by being the name before the title, the censor certificate that is screened before you see any film narrates the hidden history of Indian cinema. And yet this space, marked by its over investment in
80 81

Supra n.6 Sarai, PPHP Broadhseet 01: Film in the city, available at http://www.sarai.net/aboutus/projects/old&new.htm, See also, Bhrigupati Singh, Ek adamkhor hasina (A man eating beauty) and the anthropology of a moment: , paper presented at City One Conference, audio available at www.sarai.net/events/cityone 82 Supra n.6 83 See in particular Madhav Prasads excellent account of the history of the kiss (The absolutist gaze) in Indian cinema in Madhava Prasad, Ideology of the Hindi film : A historical reconstruction, (New Delhi : Oxford Uni. Press, 1998)


narrative (after all nudity is allowed only if it is central to the story), has its origins not in any anxiety about the narrative of the film, but in the anxieties round the new space that cinema enabled. In a fascinating history of the Cinematograph Act, Stephen Hughes traces the history of film censorship to the early twentieth century, a period when the anti colonial nationalist public was coming of age. The initial history of the regulation of cinema spaces in India was informed by a discourse of the health and safety threats posed by this new technology, since it used highly inflammable film. Cinema arrived in India via the metropolitan centers of cities like Madras, where it served primarily as entertainment for the British officials and soldiers. But when cinema started catering to the native population moved into the other parts of the city, primarily the working class areas, the anxiety around the cinematic space took a new turn and was a cause of immense concern for the colonial government. The anxiety was of governance and the ability to control a growing nationalist public, they were worried for instance about the daily collecting of crowds in the streets outside the theater at regular intervals before a show, and then after being emotionally galvanized through the collective experience of film watching, exiting together onto the streets again made the police authorities particularly concerned84. The colonial authorities carried with them unpleasant memories of Indian crowds, especially after religious processions and at dramatic performances, as a potentially uncontrollable threat to the political and social order. The very notion of collective gatherings, even at places of public entertainment, carried assumed connotations of riotous mobs and revolutionary masses which could be mobilized against colonial authority.85 This is the period that sees the consolidation of the censorship machinery to regulate the new technological medium and the potentially dangerous space that it enabled. It marries the discourse of health and safety to a discourse of moral dangers, within a single authority, the censor board. The transition from the language of health and safety, to one of moral hazard is completed in a seamless manner by the mid wife of censorship in India, Greenwood. Greenwood, who was the chief electrical engineer of Madras was appointed as the inspector of all theaters to see whether they complied with various safety guidelines, especially to avert fire. Greenwood, like the true Colonial officer took his call of duty rather seriously to include within his powers, inflammatory materials of all kinds and started making suggestions about the regulation of cinema in general beyond the health and safety angle, and in a report advised the government that films dealing with inflammatory matters such as Gandhi doctrines, religious feelings of the Mohammedans and the universally condemned scenes of inchastity or immorality were particularly dangerous in the current scenario.86 Thus the birth of an Indian cinematic public emerged within a highly regulated and highly suspicious environment, where the entire enterprise of cinema was constantly under the threat of law, and subject at every point to the gaze of the law. It is of course ironic that studies of spectatorship, the relation ship between the gaze and the screen have been largely silent about the first collective gaze upon the completed film,

Stephen Hughes, Policing silent film exhibition in colonial south India, in Ravi Vasudevan (Ed.), Making meaning in Indian cinema, (New Delhi: OUP, 1999), pp. 39-64 85 Ibid. 86 Ibid.


which is that of the law, and it this gaze which also determines the out domain of what a film can or cannot be.87 If on the one hand cinematic space was coded as an always already legal space, the cinematic space also created a new space in which existing social relations and conflict, primarily class-caste be enacted and transgressed at the same time. Sivathamby notes for instance The Cinema Hall was the first performance centre in which all Tamils sat under the same roof. The basis of the seating is not on the hierarchic position of the patron but essentially on his purchasing power. If he cannot afford paying the higher rate, he has either to keep away from the performance or be with 'all and sundry88. Thus cinema emerged as the modern space that was unlike any previous experience of public space and at the same time it had to contend with the ghosts of public spaces past, in the form of caste, which would transform the cinematic space and the occupation of this space into a perpetual site of conflict. It is in understanding cinematic space as it struggles between legal control on the one hand, and capture by existing power relations on the other, that we can piece together a story of law and the spatial dimension of cinema. Despite the colonial governments attempts to discipline the space of cinema, cinematic practices displayed a rather stubborn refusal to be subordinated to the panoptic gaze of the state. As the cinematic apparatus traveled from the urban centers into the smaller towns and villages, the cinema hall merged with older forms of traveling theaters to become tent houses that became mobile cinema halls. The place of cinema that was sought to be regulated became dispersed spaces in which cinema unfolded, and the mobile vision challenged the states apparatus, which could just not respond in any adequate manner. The history of cinema in India is thus marked by a history of extreme regulation and extreme tactility, the evolution of a new public arena of participation which was also marked at the same time by older histories of exclusion, all in all a highly charged space of conflict, anxiety and ambivalence.

Chiranjeevi Fans and their Public sphere89

I will now focus on a distinct set of practices that provides us with an important way of conceptualizing cinemas relationship to the public sphere, viz fan activity. S V Srinivas begins his important study of the fan phenomenon by posing a fundamental question: what is the nature of the public sphere constituted by cinema? Given the pervasive publicness of cinema, Srinivas posits that it is curious that classical

Ramesh Sippy for instance had to change the ending of Sholay, one of indias biggest blockbusters because the censor board did not like the idea of showing an ex police officer taking the law in his own hands, especially sine ti was during the emergency n the seventies, and it was imperative that the public respected the rule of law. Sippy, after a brief struggle subsequently changed the ending to show the police arrive just in time to restore the rule of law, thereby changing the very narrative resolution of the film. 88 Karthigesu Sivathamby, Tamil Film as a Medium of Political Communication, (Madras: New Century Book House, 1981). 89 I am relying on S V Srinivass unpublished dissertation on the fan phenomenon in Andhra Pradesh. He has also published various segments of this dissertation but my primary source is the dissertation itself. See also, S V Srinivas, Devotion and Defiance in Fan Activity, in Ravi Vasudevan (Ed.), Making meaning in Indian cinema, (New Delhi: OUP, 1999), pp. 297-317, S V Srinivas, Is there a public in the cinema hall?, http://www.frameworkonline.com/42svs.htm,


accounts of the public sphere are not in a position to address cinema. Referring specifically to Habermass idea of the bourgeoisie public sphere, Srinivas argues that for Habermas the idea of mass culture and the public sphere are contradictory, which means that the audience of cinema always remain a non public. Srinivas then turns to critics like Nancy Fraser who has taken Habermas to task for focusing on a particular public, namely the Bourgeoisie public sphere, and falling to take into account other non liberal, non bourgeoisie competing public spheres. Fraser argues that Habermas ends up idealizing the bourgeoisie public sphere precisely because he fails to examine how a host of competing counter publics including the nationalist public, working class publics, popular peasant publics and even elite womens publics emerged at the same time, and always had a conflictual relationship with the bourgeoisie public sphere, over the definition of the public itself. Srinivas suggests that an account of Indian cinema has to be framed in terms of the experience of a collective rather than the idealized individual spectator, the focus of most western theorists like Laura Mulvey and Christian Metz. And it is the nature of this collective that Srinivas attempts to theorize as a collective that attempts to become a public. In particular Srinivas provides us with an account of the emergence of the Chiranjeevi fan clubs in Andhra Pradesh, linking it to a wider political history of the emergence of various subaltern groups such as dalits and landless laborers. The conceptual link than enables Srinivas to make the theoretical shifty from Frasers idea of the subaltern counter public to the Indian scenario is by mediating the debate through an examination of the question of citizenship. 90 The turn to the question of citizenship as negotiated in and by Indian cinema has been influenced to a large extent by a landmark essay written by Partha Chatterjee where Chatterjee argues that postcolonial society in India may be characterized as consisting of a domain of civil society and a domain of political society. 91 Civil society which is generally used as the catch all phrase to indicate the domain outside of the state is however in the Indian context, a very small arena of people whose social location can be easily identified with a fair degree of clarity, and these are generally the elites who have access to the formal liberal structure (best exemplified in terms of the constitution and the legal process). Theoretically the formal liberal structure construes all of society as belonging to the domain of civil society, and every person is a citizen with equal rights. (Chatterjee calls this move the movement of enumeration, where everyone is counted as a citizen). How however argues that the domain of civil society as marked by the characteristics of modern associational life originating in western societies that are based on equality, autonomy, freedom of entry and exit, contract, deliberate procedures of decision-making, recognized rights and duties of


There have been a significant interventions in the debate on citizenship and cinema in India. See for instance, Ashish Rajadhyaksha, Viewership and democracy in the cinema, Ravi Vasudevan (Ed.), Making meaning in Indian cinema, (New Delhi: OUP, 1999), pp.267-296, Ravi Vasudevan, An Imperfect Public: Cinema and citizenship in the 'third world' Sarai reader 01: The Public Domain, 57

Chatterjee clarifies that he uses the term civil society in the older Hegel-Marx sense of signifying bourgeiose society


members are restricted to a very small section of citizens.92 Most inhabitants of India are only tenuously, and even then ambiguously and contextually, rights bearing citizens in the sense imagined by the constitution.93 Most citizens are therefore unable to occupy the space of the normative citizen subject or collectively, the space of civil society. To conceptualize the vast majority of society that lies beyond the domain of civil society, Chatterjee proposes the notion of political society. Political society for him is the domain of the population, not citizens and includes parties, movements, nonpolitical formations and the institutional form of this political society will always remain uncertain. However it is not as though this class is beyond out outside of the reach of the state or even excluded from the domain of politics. As a population within the territorial jurisdiction of the state, they have to be both looked after and controlled by various government agencies. The postcolonial developmentalist state seeks to relate to different sections of population through the governmental function of welfare and democracy becomes the major form of mobilization through which political society channels and orders popular demands upon he developmental state. Using an example of illegal settlements in Calcutta, Chatterjee argues that this body consists of a group whose very livelihood and habitation involves a violation of the law and yet the state cannot ignore them, and have to deal with squatter associations, negotiating with them not really as a body of citizens but as a convenient instrument of administration of welfare to a marginal and underprivileged population group. And yet, these groups constantly assert citizenship rights and make a claim for a political status and public participation beyond the patronising language of welfare. We shall return to this theme of the relationship between citizenship and illegality but for the moment it is time to connect back to our cinematic publics. Drawing from Chatterjee, Srinivas argues that there is a crucial distinction between the all-encompassing category of the audience and that of a public. The audience as a category of analysis is similar to Chatterjees idea of the enumerated citizen, the idea of an audience masks the conflictual nature of competing publics. One the one hand there is the elite public of cinema and for Srinivas, this elite public is a public of citizens and on the other, are the non elite audience belonging to diverse groups but distinguished by their different reading practises of a film, and here emerges the figure of the excessive fan. Srinivas says that: What cannot be ignored is that the cinema's elite public is a public of citizens. Although there are internal differences within this public, which is not exclusively male, upper-caste or middle-class, its members enter the public domain as citizens. On the other hand, fans--whom I have identified as constituents of the mass-audience and non-elite public--are non-citizens. While their activity needs to be seen in the light of ongoing struggles for citizenship and rights, I argue that it is a manifestation of these struggles in spaces, which are not in any obvious manner `political'. It is important to note that fans' associations drastically expanded the scope of the discourse of rights, by inserting this discourse which was hitherto the prerogative of `citizens' into

Partha Chatterjee, "Beyond the Nation? Or Within?" Economic and Political Weekly 32:1/2 (January 1997). pp. 30-34, See also, Democracy and the violence of the state: A political negotiation of death: Inter Asia Cultural Studies, Vol. 2 No. 1, 2001. 93 Partha Chatterjee, DemocracyIbid.


a public sphere that was constituted by predominantly poor, often lower caste, young men. As a consequence, the star--nominated by fans as the presiding deity, in a manner of speaking, of this public sphere--acquired enormous political significance. Not because the star had the ability to order this public sphere at will but, as we shall see in the next chapter, because fans assumed a political role by becoming claimants for rights. The questions the above proposition raises are when, under what conditions, how, and in what forms, does the articulation of rights manifest itself in fan activity? How do we understand this historical moment when cinema was itself coming to terms with the struggles for citizenship by political society and offering new frames of intelligibility to its audiences? The responses of publics to cinema and each other are responses to a historical moment, which is often produced as a crisis.94

The Publicness Of Fan Associations

There are approximately 3000 fan associations in Andhra Pradesh devoted to film star Chiranjeevi. While fan associations have always existed in South India, fan associations became an important unit of political mobilization when the biggest start of telegu cinema N T Ramarao won the elections and became the chief Minister of the state within six months of deciding to stand for elections. His primary support came in the form of his fan associations who did most of the ground work of establishing a mass base for his political party. Politics and cinema in Andhra Pradhesh has primarily been dominated by members of the kamma caste. Chiranjeevi became the first non-kamma star to make it big in cinema, and hence became the basis of mobilization for the non-kamma publics. Most of the members of the Chiranjeevi fan associations are people who do not hold a white-collar job, often unemployed youth, students, and workers from the unorganized sector including mechanics, shop assistants, hotel workers and errand boys. The fans are marked by their excessive behaviour, hyperbole, obsession with the star, his films and his life, a propensity to crime and in short bearing all the characteristics that mark them as being significantly different from the ideal citizen of civil society. Srinivas argues that the most significant aspect of the fans lies in the publicness of their activities. On most evenings fans meet in public places like teashops, street corner pan shops, and often in the vicinity of a cinema hall. Public places become the office of fan associations, which often bear strange addresses such as All India Chiranjeevi Friends Unit, Urvasi Theater, Gandhinagar, or Akhilandhra Chiranjeevi Yuvata, Opposite Sandhya 70 MM, Hyderabad. The fan associations are particularly active during special occasions such as the starts birthday, the release of a new film, the celebration of fifty days of a film etc and they decorate the streets with gigantic cut outs of the star, distribute flyers, posters, sweets and generally celebrate on the streets leading upto the theater. During the film, they also engage in certain protocols of collective activity, cheering and throwing money at the first appearance of the star, dancing to his songs and


S V Srinivas, Unpublished Dissertation


willing to pick a fight with anyone who does not have anything nice to say about the star. Srinivas argues that what really matters is not so much the spectacle on screen but what happens off-screen where the viewer/ fan is also a performer. This off screen spectacle (like a number of other fan activities which need not be spectacular) is addressed to the absent star, as much as it is to the fans themselves and to the others present in the audience.95 It is a celebration of the presence of the fans (at the theatre) who by their presence make the film happen and the star appear (and not the other way around). While the mode of address to the star is that of devotion/ admiration and commitment, the language that the fans use is a language of rights. Fans therefore collectively demand that the filmatic narrative progress in a certain manner and may even react violently if the star does not adhere to the expectation of the fans96 Elsewhere Ashish Rajadhyaksha has characterized the relationship between the of expectation and performance as a narrative contract (a conceptual category introduced by Sudpita Kaviraj to characterize Indian nationalism) between the star and the spectator.97 We now need to connect these excessive, performative acts of fans to the older history of cinematic space. The history of cinematic space as noted earlier, is also a history of unequal access created by caste. If the legal regulation that arose with the Cinematograph Act defined the spatial arrangement of cinema in terms of the different seats, entries etc, this translated into a spatial segregation of the cinema hall to mirror existing hierarchies. Thus for instance Dalits entered cinema halls in the lowest classes where people sat on the floors, the next class had benches and only the highest class had chairs. The seating arrangements in the hall reinforced not just the income inequality but also the caste inequality. Srinivas notes that even in the post independence era, while there was no official segregation on the basis on caste, and while there existed no entry barriers for dalits to enter the hall, the entry of dalits into upper class stalls were prevented by the management who preferred not to sell the high class stall tickets to lower caste men. Srinivas cites an interview of a seventyyear-old man who narrated how in his youth, dalits boys from his village would go the city to watch a movie and then would proudly claim upon returning to the village, that they had watched the film sitting in the chairs. The history of early postcolonial cinematic space is also marked by sharp social conflict and anxiety. Debates in a film journal called Roopvani for instance was marked by the anger of the middle class towards what was happening cinema halls. The general complaint was that it was populated by people who did not know how to behave like a proper public, littering the place, screaming and hooting for their stars, teasing women, making loud noises, jumping and dancing on the seats and in general making the place highly uncomfortable for respectable people. In 1951, after publishing a spate of letters on cinema halls, the influential Telugu film journal

Ashish Rajadhyaksha says for instance a large number of people converged upon a single screen, to collectively gaze upon the projected image.... In place of a series of mass produced frames that went out to a number of individual buyers/viewers, many people came to collectively view a single frame, and rendered it mobile 96 Chiranjeevi has for instance had to deal with letters from fans threatening to commit suicide after they did not like a particular film, as well as death threats from fans who did not like a particular role that he played. 97 Ashish Rajadhyaksha, Viewership and democracy in the cinema, Ravi Vasudevan (Ed.), Making meaning in Indian cinema, (New Delhi: OUP, 1999), pp.267-296


Roopavani introduced a regular feature called Andhra Pradeshlo Cinema Theatrelu (Cinema Theatres in Andhra Pradesh) in which readers wrote about the conditions in local theatres (Roopavani, July 1951). The broad thrust of this middle class intervention was a lament for and decrying of the cinema theatre's failure to become a public space. Readers complained that theatres were uncomfortable and unhygienic: presence of dogs, bugs and mosquitoes were frequently mentioned. Further, cinema halls were badly managed: management staff allegedly indulged in physical and verbal abuse of viewers, screenings did not start on time, tickets were black marketed by the management, noisy vendors roamed the halls throughout the duration of the film show and theatres were packed well beyond capacity. Norms of decency, hygiene and order were violated at the cinema hall and readers/authors of critical letters/articles often held the audience itself responsible for this state of affairs, although the government and the management were frequently apportioned part of the blame. One writer pointed out that viewers had some rights: comfort, sanitation and adherence of screenings to a scheduled timing. He called for a boycott of theatres which did not honour these rights (Roopavani, February 1947: 26). Another writers argued that theatre managements did not honour viewers' rights due to a) the ignorance/ indifference of viewers b) 'nuisance' committed by viewers themselves: they spat, smoked , littered theatre premises, refused to remain silent during the screening and destroyed seats (Roopavani, January 1947: 14-18). Some other writers complained that film viewers' associations ('prekshakula sanghalu') did not pay attention to the plight of the audience (Roopavani, April 1951: 39).98 For Srinivas, it is this public space marked by its histories of exclusions that fans seek to occupy. For him there is no way of reading the conflict around this space without contexualising the dispute within the larger struggle over public places in India. A significant history of the Dalit movement has been around securing rights of equal access to a number of public spaces such as temples, village wells, streets etc. His account of fan activities makes a critical contribution in expanding the liberal account of citizenship, democracy, rights and the very idea of the political , including within it practices which do not fall within classical account of political representation and participation.

The Illegal Citizen

Taking a cue from Srinivas account of the background of most of the members of the fan associations, we can now return to the debate on citizenship to introduce the idea of the illegal citizen. The creation of the citizen subject category in India demanded a move away from the over signified body of the individual marked by religion, gender, caste etc into an unmarked subject position, THE CITIZEN, a category based on equality and access and guaranteed rights within the constitutional framework. In the Indian context the history of the citizen is clearly tied to the project of the nation, "the largest imagined space which claimed the nomenclature of the new, or at least with the Utopian projection of the ideal community, freed from colonial domination, and free to create a world untainted by inequalities of caste-class, community or gender. It was a community, however, only of those who were eligible to be citizens, and the

Extracted from S V Srinivas, Unpublished dissertation


question of how citizenship was conferred is in many ways the same question as how the nation was imagined. Nationalism was a marker of the readiness to enter the 'modern' age, and the modern person produced as "Indian" was the free, agentive, romantic subject of liberal humanism.99 The markers of traditional identities, affiliations and allegiances did not fit within the project of Nehruvian modernity, and becoming a modern citizen was about disavowing older selves in favour of the liberal secular self. This exnominated modern citizen is however invariably marked invisibly as a middle class, upper caste Hindu male. The logic of incorporation into the subject position of citizenship was then always marked by a willingness to disincorporate the subjects positivity or excess, precisely because the subject positivity did not have any bearing in his/ her participation in the public sphere. However the project of disincorporation almost immediately runs into a stubborn body: the illegal citizen who refuses or just cannot be disincorporated. 100 As demonstrated clearly not everyone could participate equally in the logic of disincorporation because the empowering produced by disincorporation has included in India, the deployment of discursive and institutional strategies that have distributed the privilege of disincorporation in a highly uneven and unequal way; in such a way indeed that some bodies like the rowdy or the lumpen will not be disincorporated, so tied are the shame of their positivity to their bodies. Thus while citizenship and modernity are normatively constructed as highly desirable, and the grand project wills everyone into a state of modernity, there arises from the start a clear lack or inability for the bulk of the population to occupy this space. So what happens when people fall off these official maps and plans? How do they find their way back into official memory and create for themselves avenues of participation. I would suggest that lies a great deal of work to be done on engaging with how people create vibrant spaces outside of official plans through which they participate, and more often than not these spaces are marked by their high degree of illegality. As noted earlier, this category of the illegal citizens includes such a vast number of people that the state has no choice but to negotiate with it, sometimes with brutality and at other by giving into these claims, and the story of democracy in India is in parts the story of these negotiations. The collective experience of the category of the illegal citizen is perhaps best demonstrated in urban studies where the idea of the illegal city is a familiar one now. One reads for instance that an average of 40 % and in some cases 70% of the population of major cities live in illegal conditions. Furthermore, 70 to 95 % of all new housing is built illegally.101 The primary reason for this state of illegality arises from the nature of land tenure forms in cities, where the twin tropes of ownership and title are clearly unable to account for the myriad ways through which people assert a claim on land and to the city more generally. The people who live in

Tejaswini Niranjana, Introduction to careers of modernity, Journal of Arts and Ideas 25/26 (December). pp. 115-126. 100 See, Vivek Dhareshwar and R. Srivatsan. "`Rowdy-Sheeters': An Essay on Subalternity and Politics. In Shahid Amin and Dipesh Chakrabarty eds. Subaltern Studies IX. pp. 201-231. (New Delhi: Oxford University Press: 1996). 101 Alain Durand- Lasserve and Lauren Royston, Holding their ground, (London: Earthscan, 2002), See also, Alternative Law Forum, Of master plans and illegalties in an era of transition, available at www.altlawforum.org/resources/master


this perpetual state of illegality also engage in other networks of illegality, such as stealing electricity, water, bribing their way through the Kafkaesque bureaucratic structures to access civic amenities that the legal city takes for granted. In a city like Bangalore for instance the urban planning authority, the Bangalore Development Authority provides for approximately 15-20% of the housing requirements, while another 12-15 % are met by private developers. The rest of the city emerges outside of planned development and is hence outside the law. Most urban citizens have no choice but to build, buy or rent illegal dwellings since they cannot afford the cheapest legal accommodation or there is not enough supply to meet the demands of a growing city, marked by high migration as a result of the new information technology dreams that also spurs the imagination of the city's official residents.102 A liberal understanding of land tenure forms is limited because of its understanding of interest in land relies too heavily on how ownership and legitimate claims are narrated through the title deed and other legal documents. Any attempt to understand the complexities of the ways in which people make a claim to land in the city would have to take into account the multiple and complex forms that it takes in terms of networks of relationships that constitute a land tenure claim ( the hawker who has a designated place even though he is not entitled to the place in any formal manner, the squatter who pays a rent to the local policeman, the illegal slum that begs borrows and steals electricity and water from the rest of the productive city, the unauthorized revenue layout that gets regularized or legalized near election time on the basis of their strength as a vote bank). Solly Benjamin, in the course of his detailed engagement with informal economies in India has consistently argued for a greater understanding of what he calls democracy/ politics by stealth. Since access to the institutions of democracy are unequally distributed, most of the urban poor make their way into these stubborn structures through the lower rung bureaucracy, often using bribery as a route through which they access basic services. The middle class response is of course the simplistic one that bribery is the bane of all evil in India. Walter Benjamin has characterized the porous nature of the city by saying that Porosity is the inexhaustible law of the life of this city, reappearing everywherebuilding and action inter-penetrate in the courtyards, arcades and stairwaysto become a theatre of new, unforeseen constellations. The stamp of the definitive is avoided.103 Another metaphor closely related to the idea of porosity is that of seepage. The Raqs media collective for instance, looking at five figures of contemporary transgression, namely the hacker, the migrant, the pirate, the alien and the squatter argue that these are the people who fall off official maps, official plans and official histories but yet they travel with the histories of the networks that they were a part of and are able at any point to deploy the insistent, ubiquitous insider knowledge of todays networked world. They then introduce the powerful metaphor of seepage and how it may help us to think through these acts of transgressions. How does this network act, and how

See Alternative Law Forum, Of Master Plans and illegalities in an era of transition, available at www.altlawforum.org/resources 103 Walter Benjamin cited in Amin, Ash and Nigel Thrift (2002): Cities: Reimagining the Urban, Polity, London.


does it make itself known in our consciousness? We like to think about this in terms of Seepage. By seepage, we mean the action of many currents of fluid material leaching on to a stable structure, entering and spreading through it by way of pores. Until, it becomes a part of the structure, both in terms of its surface, and at the same time continues to act on its core, to gradually disaggregate its solidity. To crumble it over time with moisture. In a wider sense, seepage can be conceived as those acts that ooze through the pores of the outer surfaces of structures into available pores within the structure, and result in a weakening of the structure itself. By itself seepage is not an alternative form; it even needs the structure to become what it is but it creates new conditions in which structures become fragile and are rendered difficult to sustain. It enables the play of an alternative imagination, and so we begin seeing faces and patterns on the wall that change as the seepage ebbs and flows. In a networked world, there are many acts of seepage, some of which we have already described. They destabilize the structure, without making any claims. So the encroacher redefines the city, even as she needs the city to survive. The trespasser alters the border by crossing it, rendering it meaningless and yet making it present everywhere even in the heart of the capital city so that every citizen becomes a suspect alien and the compact of citizenship that sustains the state is quietly eroded. The pirate renders impossible the difference between the authorized and the unauthorized copy, spreading information and culture, and devaluing intellectual property at the same time. Seepage complicates the norm by inducing invisible structural changes that accumulate over time. It is into this ambivalent state of the legal/ illegal that I reinsert Srinivass account of fan activities, a number of them involved in peripheral economic activities, struggling to occupy the subject position of being a citizen. Chatterjees account of the relationship between political society and the state is a narrative that seems a little lopsided, attempting as he does to resolve the tension via the route of welfare and democracy. While clearly an important component, it fails to provide an account of the richly complex ways in which this political society creates their own avenues of participation. The dependence on the language of developmentalism and poverty alleviation do not do any justice to the creative instincts of survival. Instead it enables the coming into play of a language of piety which can be used to pay lip service to the plight of the urban poor, while retaining the structures of exclusion. In a landmark case Olga Tellis v. Union of India 104 the Supreme Court was called upon to decide whether pavement dwellers had a right to stay on pavements, and whether forcible evictions amounted to a violation of their fundamental right to life and personal liberty. The decision of the Supreme court begins with a typical account of the urban poor structured to induce a mixed reaction of shock and sympathy. It states These writ petitions portray the plight of lakhs of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and basti or slum dwellers. Those who have made pavements their homes exist in the midst of fifth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they case, for no conveniences are available to them. Their daughters, come of age, bathe under the

AIR 1986 SC 180


nosy gaze of passers-by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each other's hair. The boys beg. Men folk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say : "Who doesn't commit crimes in this city ?"105. It goes on to add that Numerous hazards of health and safety arise if action is not taken to remove such encroachments. Since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. Apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching illicit distillation of liquor and prostitution. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon. This decision illustrates the encounter between the law abiding citizen of civil society and his subterranean other, the illegal citizen and the encounter is marked simultaneously by a repulsive voyeuristic fascination and horror, the narrative barely able to disguise its contempt for the animal like existence of the pavement dwellers. It of courses speaks in a language where the pavement dwellers adversely affect the public interest, clearly defining the pavement dwellers residing somewhere beyond the idea of the public. It is of course a different matter that most of the services and labour for the city emerges from the very filth and squalor of pavements and slums. In another decision of the Supreme Court, the chief justice of India stated that giving land to squatters was like giving money back to pickpockets. From The Angry Young Man To The Tapori I will now attempt to return to cinematic practices, but shifting the register this time, to move onto a more speculative plane to look at how cinema has negotiated with this history of public space, urban experience, modernity and the world of porous legality. The tension between the legality, marked by its dystopic sense of the urban poor and illegality, the primary means of surviving the city, has informed much of cinematic imagination. It has for instance been argued that cinema constitutes a slum eye view of politics, 106 and the obsession with the figure of the violent outsider to the law that has marked much of Indian cinema maps onto the collective fantasies of a large section of the urban poor. In terms of film theory, this has translated into a lot of work that has attempted to understand the transition that took place in the seventies in India, which saw the emergence of one of Indias most important cultural icons, Amitabh Bachan, and the myth of the angry young man.107
Most of Bachans films in the seventies to the eighties saw him play the violent outsider to the law, delivering the directive principles of state policy and guarding fundamental rights in an alternative legal universe. Bachan emerged as one who could give justice to his class. He protects them from the law (there are a number of scenes in his films where he arrives just in time to stop the slums from being

105 106

AIR 1986 SC 180, Para 1 Ashish Nandy, Indian Popular Cinema as slum eye view of poltics, from Ashish Nandy (Ed). The secret politics of our desires :innocence , culpability and Indian Cinema, (New Delhi: Oxford Univ. press, 1998). 107 Fareedudin Kazmi, How angry is the angry young man ? Rebellion in conventional Hindi films, from Ashish Nandy, Ibid.


demolished). Thereby performing the task of dispensing instant justice which the official legal system fails to do.108

The Bachan phenomenon is also closely analysed with respect to the collapse of the social cohesion guaranteed by the postcolonial state, and the erosion of the compact of citizenship. Post the emergency in India, there emerged a drastic change in film narratives, and the social cohesion that was sustained till then in the form of the feudal romance in cinema, erupted to create the Bachan phenomenon. The new expectations arising out of the political upheavals also changed the nature of the traditional forms of narrative and opened spaces for new forms of narrative and characterization. The disruption of the citizen subject brought forth various categories of social conflict which till then social cohesion had contained. Just as the popular romance contained the contradictions of an emerging capitalist entity, the films of the 70s allowed an outburst of the contradictions to be represented in films.

This reading of Bachan as the lumpen body which refuses to be disincorporated is largely an accurate one, and the best example of this is Deewar which dramatizes the relation between a contractual law abiding society, with its subterranean, criminal obverse. While the Bachan phenomenon and its outright rejection of the law speaks to a crisis of the state and legitimacy, it somehow fails to capture or provide a glimpse into the tactile creative world of illegality that most people engage in to work their way around the law. The metaphor of Bachan as the angry young man works well within an almost avant gardist critique of the state, and undoubtedly every once in a while you have the emergence of certain Robin Hood like personalities in Indian social life, who capture the imagination of the people and media (Haji mastan, Veerapan, Vardarajan Mudalair). These (predominantly) gangsters or outlaws invoke

Ibid. at p.139.


an image of absolute crisis, and the response can only be in the extreme body of Bachan. But even then, the narrativization of these collective fantasies can only place within the pathologised body of the star (So Amitabh Bachans resistance to the law, rather than seen as a specific class response, for instance is reduced to the bad childhood that he had , his parents were killed, he was tattooed etc)

This is a story that is pretty familiar in Indian film studies, and in a lot ways also the most obvious entry point into a discussion of law and legality in Indian popular cinema. I will however attempt to move away from this dominant narrative and focus instead on another strand altogether to illustrate the idea of the porous legality and everyday space. My attempts is to try and move the focus of looking at the dramatic negotiations of law and the legal to look at the quotidian experience of law and legality as negotiated in cinema. The primary reason for this, is that the account of legality that I have been trying to outline thus far is not necessarily based on a thought out, self conscious opposition to the law, the system etc which Bachans angry young man persona seems to represent. Instead I am more interested in the practices that resist being captured by the totalizing narrative of legality, but do not necessarily pose any alternative Utopias, they exist at the level of livelihood, tactical strategies and embody a certain irreverent playfulness in their negotiation of categories such as citizenship, modernity and the political. There is undoubtedly a struggle, often a very difficult one, to occupy the space of the normative citizen or at least to access the benefits accruing to the citizen subject, but this is not necessarily a space of despair as most studies of urban poverty or legal decision paint them out to be. This is also a space of creativity and dignity, in which people on the margins find innovative ways of dealing with the state of their exclusion. An important shift in film studies that tries to engage with this space, the common place of law, the street and the urban experience is Ranjani Mazumdars work on the figure of the tapori in Bollywood. Arguing that cinema constitutes the hidden archive of the Indian modern, Ranjani attempts to distinguish the cinematic experience of modernity in India from the experience that scholars like Benjamin and Simmel have provided. If the Benjaminesque experience of the city was marked by a trope of spectral figures like the flaneur, the collector and the cinematic experience of the city was in the form of terror (film noir), anxiety (science fiction), in India, the city and particularly the street becomes a simultaneous site of community and crime, dance and violence, madness and freedom, death and renewal. The street which could be the footpath in Bombay cinema is a part of village community, part of cosmopolitan city street, a symbolic organizer of a set of contradictory impulses that generate an intense performance.109


Ranjani Mazumdar, Figure of the Tapori: Language, gesture and the cinematic city, Economic and political weekly, December 29, 20001, pp. 4972-4880.


Various characteristics of some of the urbanites that we have encountered thus far, the fan, the trickster, the slum dweller, merge in the figure of the tapori. The tapori for Ranjani is a particular Mumbai figure, a male persona who is part time street hood and part time social conscience of the neighborhood. A stylized figure representing the streets of Mumbai, the tapori has primarily been a cinematic invention. He stands at the intersection of morality and evil, between the legal and the illegal, between the world of work and those without work. His strength lies in his ability to organize the various tensions produced by the urban experience in India. Sometimes dabbling in petty crime, the taporis personality is invested with an integrity from which he emerges as the protector of a certain moral code.110 While not directly about the illegal world of the tapori, Ranjani provides us with an important entry point in thinking about the space of everyday legality, where there is an over determination of life by the law and yet there exists a number of stubborn practices that constantly enables seepages which refuse to be plugged by the legal system. This is also a performative space where the ordinary language of the political discourse such as citizenship, public sphere and rights are rendered inadequate. For Ranjani, Performance and performative gestures are crucial to the taporis agency. This performance deploys sharp street humour and an everyday street language, in addition to a deep skepticism towards power and wealth. In performing and depicting marginal figures whose narrative predicaments seem to mirror their psychological states of marginality, we see a verbal and social alienation expressed in the acting/performance of the tapori. He uses style and gesture to both shock and play with the signs of everyday culture circulating in the city.111 If the grand project of the welfare state had been to speak to the urban poor in the language of piety, and the project of law has been to speak to the tapori in the language of power, it is the ability of the tapori to reject piety and speak back to power which disrupts the traditional accounts of the developmentalist state. This ability to speak back causes a great deal of anxiety to the law which cannot comprehend the chutzpah of the tapori, as evidenced by Chandrachud Justice statement in the opening paragraph of Olga Tellis v. Union of India112, where he states with a certain incredulity and when caught, if at all, they say who doesnt commit crime in this city? 113 This is the response of the admonishing parens patrae who has just realized that the errant child does not feel too much guilt or remorse and in fact has the nerve to answer back, rendering the symbolic fiction that sustains the law of the father, vacuous. Cinematic space is perhaps the only space which has understood the world of the tapori in terms of labour, dignity and survival. For instance taking the experience of homeslessness and living on the streets, Ranjani mazumdra says that Homelessness evokes a certain morality and power. Homelessness has the ability to capture a contemporary imagination by situating the city as the site of ruin from within which a range of discourses can emerge. Homelessness has always had a powerful appeal in Indias literary and cinematic traditions for it magnifies the experience of loss,
110 111

Ibid. at p.4872 Ibid. at p.4875 112 AIR 1986 SC 180 113 Ibid.


deprivation and anger. The footpath in the city is the imagined space of homelessness where millions without a home sleep. It is the imaginary reference point of many narratives where the experience of childhood on the streets provides the moral justification for the protagonists actions (Awara. 1951, Deewar 1975, Muqqaddar Ka Sikandar1978). In the angry man films of the 1970s, homelessness connected to memory became the vehicle for the articulation of anger and revenge.

A similar tale is narrated in the Olga Tellis decision, where narrating the background of the petitioners, the court states that The three petitioners in the group of Writ Petitions 4610-4612 of 1981 are a journalist and two pavement dwellers. One of these two pavement dwellers, P. Angamuthu, migrated from Salem, Tamil Nadu, to Bombay in the year 1961 in search of employment. He was a landless labourer in his home town but he was rendered jobless because of drought. He found a job in a Chemical company at Dahisar, Bombay, on a daily wage of Rs. 23 per day. A slumlord extorted a sum of Rs. 2500 from him in exchange of a shelter of plastic sheets and canvas on a pavement on the Western Express Highway, Bombay. He lives in it with his wife and three daughters who are 16, 13 and 5 years of age. The second of the two pavement dwellers came to Bombay in 1969 from Sangamner, District Ahmednagar, Maharashtra. He was a cobbler earning 7 to 8 rupees a day, but his socalled house in the village fell down. He got employment in Bombay as a badli kamgar for Rs. 350 per month. He was lucky in being able to obtain a "dwelling house" on a pavement at Tulsiwadi by paying Rs. 300 to a goonda of the locality. The bamboos and the plastic sheets cost him Rs. 700.115

What is amazing however is the ability of the court to narrate this story of loss and displacement with a straight face, since the final decision given by the Supreme Court was an extremely violent one, adding a layer of legal displacement, wherein they held that the municipal authorities had the right to evict the pavement dwellers from the

114 115

Ranjani mazumdar at p.4875 AIR 19886 SC 180


streets, but that they should do so after monsoon, as it would otherwise cause the pavement dweller a lot of hardship116. The street in the world of the tapori becomes the area of conflict between the Tapori and authority of law, but unlike the Bachan figure who has to take on the role of the vigilante to transcend the experience of the street and the memory of homelessness, the tapori engages with the law on the street and gets the better of the law through trickery or a logic of cunning. This is an image of homelessness and of the street of an alternative imagination, one that is marked by a spirited performance of accommodation and resistance.117 I will quote Ranjanis account of a scene in Rangeela at some length here, descriving the encounter between the tapori and the law. In Rangeela, certain encounters are planned within the narrative that will enable such a performance. These encounters serve to create a conflictual space within the street where the most ordinary and routine aspects of life sometimes turn into a political performance, like a street theatre where the actor enters into a dialogue with his/her audience. These encounters produce bitingly sharp, sarcastic dialogues that are meant to convey both the taporis agency as well as his live relationship to the public in the street. Writing on the modernism of writers like Baudelaire and Dostoevsky, Marshal Berman has suggested that both writers created a form where everyday encounters in the city street assume an intensity to express fundamental possibilities and pitfalls, allures and impasses of modern life (1988:229). While such encounters are common in Hindi films, the taporis everyday encounters are presented like a theatrical event, where the taporis relationship to the crowd or the public is usually fore grounded through his performance. Munna is first introduced in Rangeela as a black marketeer of film tickets at a sold out show. The sequence begins with a low angle shot of a film poster starring a well known actor. Munna enters theframe wearing a hat, smoking a cigarette in an exaggeratedly relaxed style. He pause in front of the poster for a second and then moves away as the shot changes to reveal the crowd of people waiting outside the movie theatre. Munnas first entry in the film using a film hoarding as a backdrop again draws attention to the specifically cinematic iconicity of the tapori. In the next shot we see Munna softly mutteringDus Ka Tees (Rs 30 for a Rs 10 ticket) as he swaggers through the crowd. Munna is trying to sell tickets. Munna also has a friend (Pakhiya) who does the same thing. The dialogue, mise en scene and the performativity within this sequence requires some detailed analysis for it introduces the idea of the casual encounter acquiring a larger than life, sometimes political dimension. Munna saunters through the crowd with a marked swagger, cigarette in hand and a confident persona. His ticket sale to a man is laced with one liners, cocky comments and underlying humour. Next Munna turns to face a policeman. Munna tries to retreat, but the policeman calls him back. The policeman

Ironically the decision has been subsequently narrated in heigiographic accounts as an instance of how the Supreme Court has consistently increased the ambit of Art. 21 (the right to life and personal liberty) reading into it the right to live on pvements 117 Ranjani Mazumdar at p.4875


questions Munna about his illegal ticket sales but Munna denies everything. The cop starts searching Munna who removes the tickets from his rolled shirt sleeve and tucks it into the fold of the cops cap. Throughout the search Munna performs loudly for the public. The dialogues are significant here: arey yeh dekho bhaiyo, Bombay mein danga phased karanewaale ko chor dete hain, share bazaar meing karoro ka dafla huva, kisi ko pakda kya, nahiu pakda, par apun, seeda saada aadmi picture delhne ko aaya, apoon ko pakarta hain, pakdo, tumhara raj hai, kuch mila kya, nahin na, phokot to public ke saamne apna izzat ka phulta banaya na Hey brothers look! The perpetrators of the Mumbai riots were never convicted. The share bazaar scam saw the embezzlement of millions of rupees. But did they arrest anybody? And me, a simple man who comes to see a film, is harassed! Its your rule anywaywhat will happen to this country yaar! (Laughs) This encounter reveals the centrality of performance in the sequence. Munnas loud loafer-like clothes are contrasted with the police constables uniform. The appeal to the public is made through references to well known incidents like the Mumbai riots of 1992-93 and the share market conspiracy of 1991-92. By contrasting Munnas petty crime with the larger world of intrigue violence and corruption invoked in the dialogue with the public, a certain character development is made. Munnas style, performance and posture are presented as a critical strategy, while at the same time introducing his charm to the audience.118 This performative space of the tapori marked by a certain fragile bravado is what enables the tapori to maintain a sense of dignity in what would otherwise be a highly unequal exchange. This account of performance and resistance teases out a world of everyday legality, marked not by any extreme acts of resistance or appropriation but extracting an edgy, almost nervous humour of the brutal. It is an edgy world because there line between bravado and violence is a thin one, but in terms of cultural representation perhaps the closest world to that of the excessive fan, and the survival instincts of the urban poor. If the logic of disincorporation refuses to acknowledge the excessive gestures of the tapori, the excesses of the tapori also refused to be contained within the regime o codes, laws and propriety. The Tapori In The Common Place Of Law How then do these account of excess, of the tactical and the everyday speak to legal theory. While clearly there is very little in classical legal theory that can speak to the question of the legal experience of the tapori, some developments in law and ethnography may perhaps be of help in bringing these fields together. I am thinking in particular of Susan Silbey and Patricia Ewick's work , The common place of law 119.
118 119

Ranjani Mazumdar at p.4877 Susan Silbey and Patricia Ewick. The common place of the law: Stories from everyday life, (Chicago: Univ. of Chicago Press, 1998)


In their study on legal consciousness, Silbey and Ewick pose the question of how do people experience and interact with the law in the context of their daily lives? How do commonplace transactions and relationships come to assume or not assume a legal character? And in what ways is legality constituted by these popular understandings, interpretations and enactment of law120 The answer in brief is that in order to discover the presence and consequences of law in social relations, we must understand how legality is experienced and understood by ordinary people, as they engage, avoid, or resist the law and legal meaning and this is the study of legal consciousness. Towards that end, the authors after three years of interviews with people from different backgrounds n which they collected a vast amount of information about the quotidian experience/ consciousness of legality posit a model under which there are three different ways in which people encounter the law. These are a. Before the law: This is more or less the story of grandeur that the law narrates for itself. Where the law is an objective but impersonal and distinct system of dispute adjudication. Here legality is envisioned and enacted as if it were a separate sphere from ordinary social life: discontinuous and distinctive, yet authoritative and predictable. The law is described as a formally ordered, rational and hierarchical system of known rules and procedure b. With the law: This account of law represents legality as a terrain for tactical encounters through which people marshal a variety of resources to achieve strategic goals. The is not seen to be distinct from everyday life, rather it is seen to be coterminous with everyday life and the boundaries that separate everyday life/ law are seen to be relatively porous and flexible and it is an arena of competitive technical maneuvering where the pursuit of self interest is expected and the skillful and resourceful can make strategic gains121 c. Against the law: In this form of legal consciousness, legality offers no alternatives except submission or subservience. People exploit the interstices of conventional social practices to forge moments of respite form the power of the law. Foot dragging, omission, ploys , small deceits, humour and making scenes are typical forms of resistance for those up against the law The idea behind gesturing towards Ewick and Silbeys work is not to try and forge some neat link cinematic experience / representation and the world of porous legality, with legal theory in any neat manner. Certainly not the case that we would try and map this experience upon one of the models offered by Ewick and Silbey. Instead it is to open up an area of discussion around the place of the tactical in our understanding of porous legality. Naomi Mezey, in a useful review of Ewick and Silbeys work traces the intellectual history of the work and identifies Foucaults idea of power and de Certeaus ideas of the tactical as the two main sources of reference122. The starting point is Foucaults idea of power as dispersed, and emerging from a set of discursive practices as well as in institutional histories. However the argument that Foucault makes is that every act of power is also at the same time produces a coeval act of resistance. There are no relations of power without resistance, the latter are the
120 121

Ibid. at p.33 p. 48 122 Naomi Mezey, REVIEW SECTION SYMPOSIUM: The Common Place of Law Out of the Ordinary: Law, Power, Culture, and the Commonplace, 26 Law & Soc. Inquiry 145.


more real and effective because they are framed at the point where relations of power are exercised; resistance to power does not have to come from elsewhere to be real.123 Following from Foucaults idea of resistance is the contribution that deCerteau had made to the understanding of the everyday as the site of creative and tactical resistance, with the focus on bringing together the clandestine forms by which the dispersed, tactical and makeshift creativity of groups or individuals already caught in a net of discipline. Building on Foucault and deCerteau, Ewick and Silbey argue that legality cannot be seen only in terms of legal relationships and legality is a product of, and premised upon the interaction of various schemas including cultural codes, vocabularies of notice, hierarchies of value and conventions that operate ton define and pattern a social life. Legal consciousness is defined by them as participation in the process of constructing legality and hence it is as much a cultural practice as a legal practice. Kay Levine supplements this Ewick and Silbeys in her work on women in the street level drug economy. While broadly concurring with Silbey and Ewick, she argues that they fall into a trap of having a law first approach. Given the nature of empirical data that Ewick and Silbey have relied on, it is easy to slot them into one of the categories defined as before, with or against the law. However if you supplement the work for instance with very different kind of empirical data, then it would be difficult to come up with the same conclusions. Her argument is that Ewick and Silbey rely too heavily on the idea of legal consciousness itself, and even if they do make an argument of different kinds of legal consciousness, it is still premised on an idea of legal consciousness. But what happens if such a consciousness does not in reality exist? In Ewick and Silbeys model , experiences with legal or quasi legal actors and institutions inform legal consciousness; or people make sense of their experiences in describing them to others thereby invest in the law, with meeting and participating in the process of constructing legality. This view is premised on the belief that individuals will see the law and legality as relevant to shaping their behaviour and to determining the choices that they make. Levine posits instead that another model may also be thought, and by looking at women in the street level drug economy, she argues that in Silbey and Ewicks model there is a danger in over determining the role of law or legal consciousness in this everyday economy. While it is indeed true that the lives of these women may be over determined by the law, the fact remains that they do not constantly or consciously structure their lives so as to avoid future conflicts. So a more significant question to be asked would be how does the law matter? By blurring the distinctions between when the law is implicated and when it is merely a background presence, and by subsuming all of these other institutions under the rule of legality, the concept of legal consciousness articulated in the common place of law privileges the role of law above all other social structures in accounting for everyday life. Often in Silbey and Ewicks work, when both legal and non legal aspects are present, in an interaction or relation, the non legal aspects are present as residue or supplements to legality. 124
The supplemental question posed by Kay Levine makes Ewick and Silbeys project more significant to our understanding of cinematic publics, the illegal city and the imagination of the Taporis negotiation of the illegal city. The terms resistance, tactical,

123 124

Silbey and Ewick at p.45 See, Kay Levine, Strategizing the street: How law matters in the lives of women in the street-level drug economy, 26 Law & Soc. Inquiry 169.


strategic etc are certainly attractive when we want to speak against the power of the law, but there is a danger of over romanticizing quotidian sites of struggles (and much of cultural studies is proof of this). It conjures up a well thought out process of resistance which may not often be the case, when we examine practices that people deploy to engage in or participate in the public sphere, or their encounters with legality. In our work with sex workers for instance, we have seen that while a number of the women may attempt to joke about their encounter with the police in group meetings, the encounter with the police on the streets themselves offer very little space for any tactical resistance.

To ask the question of motive in this case with respect to the law may not necessarily be the most appropriate question to ask, instead we need to see them in terms of the larger structures of exclusion that mark the world of legality and the liberal discourse of rights within a constitutional context. The fact that they often emerge in a playful performative space does not render the effects of these acts any less useful in theorizing the complex world of legality, and our entry point does not have to confine itself to a thought out process of being against the law. Silbey and Ewicks model of being against the law invest very heavily in the normative progressive account of resistance. It is really the porous space between an instrumental and a constitutive account of legality that we need to theorize, while at the same time making enough room for actions that may not fall within the realm of legal consciousness at all. My attempt has been to locate the debate of cinematic publics has been to foreground the larger structural experience of citizenship, modernity and the urban experience as the main sites through which these varying legalities may be experienced, rather than to see it as an account that attempts to provide a legal theory. The metaphor of porosity is therefore not restricted to the idea of porosity between various forms of legal consciousness alone but more significantly within the larger social account of when and how legality matters.

Tactile Cities, Pirate Moderns And Porous Legality

Given the nature of this porosity, I would finally like to return to the question of how we maintain a similar porosity when we speak of the relationship between law and cinema, and look at it not merely in terms of ways of watching films, but to take seriously the idea of the spatial histories that cinema falls into, the legal histories of these spaces, and their relationship to the larger experience of the city. Finally I would like to tie the content/ spatial account into the contemporary transitions that are taking place, with cheap forms of reproduction to pose the question of how the question of carriage, or the technological form through which cinema is delivered is also a part of this larger story of porosity, and it is a question which a project like law and cinema will have to take seriously.

We have already seen the older illegal city in this paper, and the creative energies that this city may contain. The illegal city also serves as testimony to the failure of any absolutist project of planning in a country like India with very sharp inequalities. Writing about the modernist project of planning, James Holstrom writes that "modernist planning does not admit or develop productively the paradoxes of its imagined futures. Instead it attempts to be a plan without contradictions or conflict. It assumes a rational domination of the future in which its total and totalizing plan dissolves any conflict between the imagined and existing society in the enforced coherence of its order. This assumption is false and arrogant as it fails to include as its constituent element, the conflict, ambiguity and indeterminacy characteristic of actual social life".125 Over the past ten years we have seen significant transformations of the image of India, with cities like Bangalore and Hyderabad claiming their share of global attention as the IT hubs of the world, the heart of the BPO industry, and triumphant global elite claiming that India had finally arrived., via the BJP governments feel good campaign of India Shining. So on the one hand you have the creation of the global city working in virtual time with the US in terms of the provision of IT enabled services, and on other hand you have the barely hidden city of over 700 slums co existing in a bizarre temporal disjuncture. If dams were the most important symbols of post colonial Indias entry into the modern, the IT industry has emerged as the most important symbol of Indias entry into the global or into the new modernity marked by the pre-eminent position given to knowledge based services. Co-existing parallel with this vision of Bangalore as Singapore and the trajectory towards this vision is a

James Holstom, Insurgent Citizenship, from James Holston and Arjun Appadurai, Cities and Citizenship, (Durhan and London: Duke University Press: 1999)


city mirroring the silent but steady growth of local economies lacking the infrastructural provisions and state backing unlike the IT companies. This city weaves in its core the unorganized and unplanned growth of the city, both economically and spatially. It is here that the urban poor comprising a quarter of the city reside and carry out trade in conditions that make a decent living standard unattainable. While the older illegal city has been in existence for a while, in the past ten years there has been another layer that has been integrated into the experience and narration of this illegal city. The proliferation of non legal media practices ranging from pirated VCD's, DVD, MP3's to grey market mobile phones informs the practices and imagination of the illegal city. Ravi Sundaram in a Series of articles126 has been theorizing the phenomenon of piracy and illegal media cultures in the new media city. According to Sundaram, this world of non legal medias in a number of south Asian cities, marked by its rather ad hoc innovativeness and its various strategies of survival, is the world of recycled modernity. It exists in the quotidian spaces of the everyday and cannot be understood within the terms of the earlier publics (the nationalist public and the elite public sphere). Fueled by aspirations of upward mobility, it is an account of the claims to modernity made by a class of people, otherwise unaccounted for by the meta narrative of the nationalist project of modernity. These cultures of recycling do not however exhibit any of the characteristic valor or romance of counter publics. Beginning with the audio cassette revolution that we examined and moving rapidly into the worlds of computers and digital entertainment, this world has been based on a dispersed logic of production and consumption, and marked by is preponderant illegality. This rearticulated entry point into the modern is also contemporaneous with the emergence of the global moment and this arrival of the global via media, new forms of labour like call centers, the software industry in India etc replace the earlier configuration of national/ modern with the global modern. While understanding the issue of entry points that one makes into the modern it now becomes critically important for us to recognize that the shifts in registers of imagination that the global brings upon the national/ modern configuration. Thus at the level of the everyday, the old prohibition and regulation on the social life of commodities have proved ineffective, urban residents are now assaulted with a deluge of cultural products, cassettes, CDs, MP3s, VCDs, cable television, grey market computers, cheap Chinese audio and video players, thousands of cheap print flyers, and signage everywhere. What is remarkable here is that the preponderance of these products comes from the grey or informal sector, outside the effective regulation of the state or large capital. India today has the worlds second largest music market, a large film industry with global dreams, a majority grey computer market, hundreds of thousands of tiny phone and word processing shops and cybercafes. And as if from the ruins of urban planning new media bazaars, which supply these networks, have emerged existing in the cusp of legality and non-legality. Everyday a guerrilla war is

See generally, Ravi Sundaram, Recycling modernity: Pirate electronic cultures in India, Sarai Reader 01: The Public Domain, 12, Ravi Sundaram, Beyond the Nationalist Panopticon: the Experience of Cyberpublics in India, available at http://amsterdam.nettime.org/Lists-Archives/nettime-l-9611/msg00018.html and Uncanny Networks: Pirate, Urban and new Globalization, Economic and Political Weekly, January 3, 2004. (to obtain exact citation) 155

raging, between new intellectual property raiders, the police and unceasing neighbourhood demand for grey ware. At the heart of this extension of the visible has been the production of media commodities outside the legal property regimes of globalisation. Copy culture and non-legal distribution networks have been central to the spread of the media, in a way that distinctions between the technological and cultural seem blurred in daily life. A significant section of the urban population derive their media from these networks. Using the tactics of the fragmentary city, the pirate networks have frustrated every effort of the proprietary enforcement regime to control them.127 If cinema marked the arrival of a new modern experience with its ability to create a dazzled experience of the contemporary, the world of information and media brought about up globalization also conjures up a similar experience of wonder and awe. And if the cinema hall that space of modernity and conflict enabled the play of an alternative imagination in construing the experience of the public sphere for fans, not otherwise invited to the offical public sphres, then you have a similar space that has opened up in the past decade, a space that links the spatial world of the fan with the street of the tapori to the world of the illegal DVD film. The ongoing research, Publics and Practises in the history of the present (PPHP) at Sarai, has done some very significant remarkable work in linking these two cities, the older illegal city that emerges against the wishes of the master plan, and this new mediatized city of pirate practices, and the remarkable linkages that binds the older transgressor of modernity with the new transgressor of globalization. In a lot of ways, the information era props up a master plan, similar to that of modernist planning. The institutional imagination of the era relies on the WTO as chief architect and planner, copyright lawyers as the executive managers of this new plan and the only people who retain their jobs from the old city are the executors of the old plan, the police force and the demolition squad. Just as one cannot understand land tenure through the prism of liberal legality alone, any attempt to understand the complex networks of economic and social relations that underlie the phenomenon of piracy will have to engage with the conflict over control over the means of technological and cultural production in the contemporary moment of globalization. The ways in which the illegal media city emerges and co exists alongside the vibrant, innovative and productive debris of the older city, the schizoid relationship between legality and illegality in postcolonial cities suggest that the crisis may not lie in these relations, and we may need to turn the gaze of the law from the usual suspects of legality to legality itself and the relations that underlie its existence. Derrida has said very poignantly that the admiring fascination of the rebel can be understood not merely as the fascination for someone who commits a particular crime but that someone, in defying the law bares the violence of the legal system or the juridical order. 128

127 128

Ravi Sundaram, Uncanny Networks (to obtain exact citation) Jacques Derrida, The mystical foundation of authority from Druscilla Cornell et al (Eds), Deconstruction and the possibility of justice, (New York : Routledeg, 1992)


Films for Freedom

- namita malhotra and lawrence liang In April, Films for Freedom, Bangalore process was initiated when Surabhi Sharma invited together a wide variety of people to participate in bringing Vikalp to Bangalore. This included Collective Chaos (film society), Pedestrian Pictures (media activist group), Alternative Law Forum, Ayisha Abraham, Shabnam Virmani (artists and teachers from Srishti School of Design), Vasanth from Suchitra film society and film-makers such as Sushma, Challam, Deepa Dhanraj. Many people joined this group later including Jenny Pinto, Clifton D Rozario and others. At that meeting we realized that the work of taking the Vikalp package to the people in Bangalore was already being done by the efforts of both Collective Chaos and Pedestrian Pictures. CC was already holding screenings of films such as Hawa Mahal, and Pedepics regularly used issue based films in their work of mobilization and for general screenings as well. Each group has a large membership already that is interested in films and comes for their regular screenings. Thus the purpose of the coming together for the Vikalp package would necessarily involve a larger imagination of taking the documentary films collectively to the public and not be restricted to pockets of members, or what can be called the audience of the converted. So though the idea first suggested at the meeting was to have 5 or 6 venues for the festival, it was felt by the group that that model is not very different from what was already taking place. And that something larger and with the ambience and excitement of a big film festival had to be done. This would then necessarily involve discussions on censorship of film and also of other forms of expression, access to public spaces for different communities, and also discussions on politics of form of documentary film, representation of violence in film and re-imagining distribution networks and mechanisms for the documentary film. The brochure too would contain articles on politics of form of film and different experiences of organizations that screen films. Film-makers would be invited to initiate discussions on their films and audience interaction would be part of the festival. An installation was also part of the plan that would be a video loop of days

on which people around the world had fearlessly spoken on a wide variety of issues, taken up public space and stood up for public expression. It was also felt that many people would not necessarily be able to make it for the main festival and hence subsequent and before the festival curated packages of films should be taken from the entire package to circulate in spaces such as colleges, largish organizations and also outside Bangalore. Thus it was a two pronged approach where there would be multiple small screenings, but also one big film festival. The group decided that two issues needed to be addressed in the process and through the festival that a larger documentary audience is possible and should be reached and involved somehow, and that the issue of censorship should be raised. Students and newer groups should be involved, keeping in mind the successes of ventures of CC and Pedepics. Regarding venue the group felt that for a film festival ambience and excitement, an auditorium with the capacity of 500 people would be ideal, that could also then be a space for panel discussions on a wide variety of issues and for audience interactions. At this point the Centre for Gandhian Studies which is part of Bangalore University was excited about collaborating with us on bringing the festival to Bangalore. The venue would then be a large auditorium with a much larger capacity than anticipated of 800 people but it would be in the centre of town and would also draw in a large audience from within Bangalore University. The venue was offered free of cost and the interactions with the people at the Centre for Gandhian Studies led us to believe that they were politically committed as we were to raising similar issues and thus interested in showcasing the Vikalp package. The larger figure of 800 people to attract to the film festival was considered a challenge and also not that impossible because of the centrality and access to the venue. This meant that the group shifted to higher gear for publicity which would include packaging the festival and going for press publicity, postcards, posters, banners and billboards across town and email campaign. The group felt that we were already in a legal grey area regarding the exhibition of films that were without censor certificates or banned, but that seeing the number of festivals of foreign films and documentary films that are regularly held without exemption in Bangalore, it wasnt 158

felt necessary to seek exemption for the festival. The group felt that to make the festival a success, there was need for publicity and hence it had to be done. The aim of the group, though not crystal clear from the start, was definitely to do more than merely hold film screenings but to generate a wider debate on censorship. This, it was felt especially as the days for the festival grew closer, would be achieved through a large event, rather than through only film screenings. The films screenings were not an end in themselves but were part of a festival where many facets such as discussion, performance and especially the very publicness of it would be the method of discussing censorship. As time went by and some of the later events unfolded we also realized that the legal niceties of public and private screening were not much of a protection, and there was a fine line between them. In May there was a lull in the group because many of the people were out of station, but discussions with CGS of Bangalore University continued, but frustratingly only at an informal level. Inspite of reassurances from them about their control over the use of the auditorium, there was no formal written agreement about the use of the venue for FFF. In early June, the scheduling of films was carried out especially in the light of lesser number of days for screening films, and hence a selection had to be made unfortunately from the larger Vikalp package for the main screening. There was no ambiguity about going public and hyping the festival. The question that remained was whether Final Solution would be slated as the opening or closing film. It was felt however that the most common understanding of a documentary is that of an investigative film that reveals what is beyond the knowledge of a common person. The film Final Solution is thus the obvious choice to initiate a discussion on documentary film, while the rest of the festival layers the audiences understanding of documentary films by showing what a wide variety actually falls under this category. It is also the obvious choice for any discussion on censorship of documentary film. That the film was stuck at the Censor Board was not considered important, as many films without censor certificates had been screened in Bangalore. An attack from the right wing was also not really anticipated because it is generally a tolerant environment where many films such as War and Peace have been screened to large audiences. 159

By end June however it was obvious that Centre for Gandhian Studies inspite of firm verbal reassurances was not able to give us a firm written commitment concerning the Gnanya Jyoti Auditorium. When the group pushed CGS for a meeting with the Registrar of Bangalore University to get a formal permission, the Registrar was abrasive and dismissive. He stated that the students would have no interest in documentaries. Thus an alternative venue had to be found one month before the event and in a hurry. The group tried to book several large auditoriums but these had already been booked and not many were available at this point of time for July. Again the discussion arose as to whether we should go for small multiple screenings or go for a large auditorium nonetheless. At the same time a lot of money had to be raised to cover the costs of hiring an auditorium, and thus it was more necessary to draw in a large public through publicity. T-shirts, posters, postcards, membership were to become ways of earning money for the festival. Inspite of clarity in the group over going for a large auditorium post discussion, the only such auditorium available was JSS Auditorium in Jayanagar. There was anxiety about the ability to attract a large audience to Jayanagar and also as to the political leanings of the auditorium management. JSS had held a large screening of War and Peace, two years ago for a ticketed audience. Though it seemed they had a progressive agenda, it was more or less a business venture for them. However with no choice for other auditoriums we had to go ahead with JSS. On 15th July, a press conference was held which was very well attended. The agenda to showcase documentaries and the issue of censorship was put forward. At this stage the publicity material was ready and there was some nervousness regarding how openly we were addressing the issue of censorship openly and pushing the agenda of the festival in an overt manner to the public. Thus post the press conference the group convened again for the legal aspects involved, and for exploring the formal and informal avenues to allow the festival to take place. The group was aware and had been that screening films without a censor certificate was an offence, and in our discussions the possibility of arrest was raised and what we should do was discussed. The anxiety became more serious, when Rakesh Sharma received a show-cause notice and it became clear that there was anxiety about his film Final Solution being screened to the public amongst the concerned officials. 160

It was decided that we should first try to get informal clearance for the festival via contacts in the police and political contacts. It was also decided to mobilize a larger number of groups amongst NGOs and movements to be part of the campaign against censorship. There was a review of the publicity that we had done, passes circulated through the usual outlets in the city. It still however in the light of numerous previous events, seemed unlikely that we would run into serious trouble. It was also felt that it was too late to change the design of the festival, and that we should just go ahead with more publicity to attract enough attention incase something were to go wrong. Meanwhile because of negotiations in Delhi between the film-makers and Jaipal Reddy, a preview of Rakeshs film was slotted for the 26th. It is now obvious that wheels were turning between the various people in the censor board, officials and ministers in Delhi, and it was on that same afternoon that the regional office of the CBFC (Central Board of Film Certification) received complaints regarding Films for Freedom and the screening of Rakeshs film, from Mumbai and New Delhi. What also added to the general perception by now that FFF was screening uncensored films was the mistake by a report in Times of India that stated films being screened are those rejected by the Censor Board, instead of rejected by Mumbai International Film Festival. This was what was relied on by the regional office in their telephone conversation with Surabhi Sharma, as the source from which they had got their information. On 24th the Regional office of CBFC contacts the commissioner of police and files criminal complaint along with this clipping from Times of India. The Commissioner of Police, Mariswamy, tells the R.O. to talk to the group involved first and that there was no reason for complaint. He said that these people are not street thugs. On 24th, Surabhi receives a call from the Regional office of CBFC and a meeting is set up for the 26th, between the Regional Officer of CBFC Chandrashekhar and the group behind FFF. Within a minute, a call is received from another group that identifies itself as a group that is also the RSS publishing wing. This conversation was about the festival and whether it is open to everybody, and it was told to them it was an invited audience only. 161

On 25th the group met once again to decide what to do in the light of these phone calls. It was decided that the group would go ahead and meet Chandrashekhar to size him up. It was by now obvious that there might be trouble with right-wing groups, but the assumption was that they would be disruptive at the venue of the film festival. The decision was to try and rustle up support for ourselves so as to protect the venue and on the same day, we met with the Campaign Against Communalism, who reassured that they would be there for the screening of Final Solution. They also stated that it was unlikely that there would be an attack on the venue of the festival by the right wing or Hindutva leaning groups, because that would lead to negative publicity for them. In retrospect it is obvious that we considered the legal attack and the attack by the right wing as two different things, not considering that the right-wing would use the law, specifically the Cinematograph Act and Rules, to try and stop the festival. On 26th morning, the group went to meet the Regional Commissioner of the CBFC Chandrashekhar. On 26th afternoon, inspite of mixed messages from Chandrashekar, there was a threat made to the management of JSS Auditorium Rajshekhar. At the same time, the Bangalore group was made aware that the Delhi group of film-makers was in negotiation with the minister Jaipal Reddy to ask for exemption for the Traveling Vikalp package as a whole. If that came through, then the festival could go ahead legally. On the next day 27th, the FFF group received a verbal assurance from the CBFC Regional office that we could go ahead with the festival, and that they had no problem with it. The FFF group also met the Commissioner of Police Mariswamy, who stated that he did not see the festival as a possible law and order problem. But at the same time, 3 members of the advisory panel of the CBFC met with the auditorium management and basically threatened him and also filed a police complaint at the Jayanagar police station about the festival. The threat was that 100-150 people of right wing would land up at the auditorium to prevent the screening from taking place. On 28th a clarification was published in the Times of India, about the fact that the films were rejected by MIFF, and not the CBFC. That morning, members of the FFF 162

group also filed a police complaint at the Jayanagar police station and requested for protection, when the group became aware that a police complaint had already been filed by the CBFC at this police station. Subsequently members of FFF reassured the auditorium, stating that we had police protection now from the Commissioner and a go-ahead from both Chandrashekhar and Jaipal Reddy. That there was thus no official way atleast of the festival being stopped. At the same time, the CBFC advisory panel members went ahead and complained to the Police Commissioner, Mariswamy, about the festival. However we again met with the Commissioner, who again stated that there would be police protection, and that there is no law and order problem. He stated that what is being done is illegal but he is willing to look away. On 29th morning, many volunteers and organizers gathered at JSS Auditorium from 9 in the morning, but the JSS Auditorium refused to open. The request on their part was that we should not ask him to open the auditorium on the basis of informal clearances, but to give him a written permission. JSS Auditorium management Rajshekhar, then got calls from both Chandrashekhar and the Commissioner stating that there would be no trouble, and that the festival could go on. The FFF group felt that there should be a press conference either outside or inside the venue, to protest against the arbitrary actions being taken. Inspite of producing censor certificates for films which had them the JSS Auditorium was adamant on written permission to state that the festival could go on. After a call from the Ministry, the JSS management said that we could go ahead with films with a censor certificate. The stand of the police on this matter too was that they would provide protection for the festival as long as it was legal i.e. films with censor certificates were being shown.

Police at JSS Auditourium


The group hurriedly met and our decision was that we would enter the auditorium, hold a press conference about the events preceding the festival and upto that day, and do a screening of Words on Water by Sanjay Kak. Then we were going to declare the festival closed and even wrote a press release to that effect. It was felt that dividing the festival into films with censor certificates, and those without and those banned, would be detrimental and that there was no doubt in our minds that we wanted to show the whole package or not at all. This we could do at an alternative venue at a later date. But meanwhile the auditorium was opened to us and the organizers and volunteers hurriedly moved in to set up the venue, projector. On the outside as it became apparent that the auditorium was opened and the screenings were going to proceed, two individuals appeared, and they said they were members of the advisory panel of the CBFC. They said that under Rule 37 of the Cinematograph Rules, they had power of entry into the auditorium, and also to stop the screenings and seize the films. This was incorrect and it was pointed out to them that they had no such authority, and that the only authority to stop screenings and seize films is the police. As per the Act, the CBFC Regional Commissioner has to communicate to the police, that has the authority to stop and seize films, and to do this only in accordance to rules of criminal procedure. The two individuals misrepresented their authority, using Rule 37 of the Cinematograph Rules, which gives them the power of entry to any auditorium and to get the best seat in the house. Nowhere is the power to stop and seize films given to members of the advisory panel of the CBFC. A huge argument was taking place adjacent to the auditorium, most of which is also recorded on tape. In the argument, the press also started asking questions of the advisory panel members, and an altercation took place, where they attempted to assault a member of the press. At this point the police intervened, and took the two advisory panel members across the road and told them that they clearly had no authority to intervene with the screenings. They were then asked to leave.


Dramatically showing the identity card

Arguing the law

Subsequent to this, the press conference was held inside the auditorium, and the message that went out was that because of all this trouble we are only able to show films with censor certificates and since that was not our intention, we have cancelled the festival, and shall do the screenings at an alternative venue.

Press conference for the Audience (L to R, Surabhi Sharma, Anand Patwardhan, Rakesh Sharma) FFF group was now joined by several film-makers visiting from audience (Rakesh Sharma who had been there now for many days since the first call from the CBFC Regional Office, Amar Kanwar, Anand Patwardhan, Hansa Thapliyal, Rahul Roy and Saba Dewan, Hassath who were to join the next day). The press conference was held and also included the audience that had come for the festival, and the response of the audience to the troubles faced by the FFF group and film-makers was heartwarming support and of disappointment at the cancellation of the festival, atleast for now.


Audience at JSS Auditourium After the press conference, the screening of Words on Water took place, and during the screening there was a disruption outside by some people (about 15) allegedly from the Bajrang Dal accompanied by the same members of the advisory panel of the CBFC. They were stopped from entering the venue, but they proceeded to take photographs of the place and the people there. Some photographs were also taken of them. A car belonging to one of the audience was damaged, and the windshield broken.

First showing of festival signature film After that a meeting took place amongst the FFF group members again to decide on a future course of action. An individual from Doordarshan stated that he was there as a representative of Chief Minister of Karnataka, and that he would speak to the management and the chairman of JSS Auditorium to ensure that the complete festival could continue at the venue, and if that were not to work out then he would arrange for an alternative government venue. Inspite of many reservations within the group, we relunctantly agreed to announce a schedule of films for the next day at JSS Auditorium to the audience. These films were those with censor certificates that would atleast fill up the whole of next day, giving time to find an alternative venue. The response of the audience was once again very supportive and pleased to know that the festival would continue. We also felt that relying on our own resources we could find a safer venue for atleast 150 people within a day as well. The commitment on our part was clear, that if we continued to show films at this venue for one more


day then we had to somehow find a way to show the films without censor certificates as well. Though the cancellation was the preference of the group, it was felt that if there is a continuation of the festival at JSS Auditorium with only films with censor certificates, then this would be an empty gesture. Thus if we continue, the commitment on our part has to be to find an alternative venue and to continue the screenings of films that were being excluded once again. Within a few hours, the representative of the CM called back to say that the management of JSS Auditorium would not be giving permission to show films without censor certificates under any circumstance. On the 30th, Pedepics sprang into action to find an alternative venue and to arrange it for the next 2 days. The films with censor certificates were being screened. There was a panel discussion slated for the same day on censorship of documentary film with speakers Anand Patwardhan, Amar Kanwar, RAhul Roy, Rakesh Sharma, Saba Dewan. This panel discussion opened up many issues for the audience to participate in, especially the history of the larger process of MIFF and Vikalp, the processes of actually filing for a censor certificate and litigating freedom of speech and expression, the control exercised by the CBFC not only over content but also form. Different strands of thinking were visible and available now for the audience too to participate in a discussion on censorship. Meanwhile the crime branch that had been notified because of the complaint at the Jayanagar police station regarding the screenings of films without censor certificates had to investigate the complaint. Inspector Shami uh Rahman was doing the criminal enquiry. Since the films shown so far were with censor certificates, we were able to conclusively tell him that nothing that we were doing was illegal. He was also generally sympathetic, but took 4-5 hours of long conversations with members of the FFF group to clarify various issues.


Inspector Shami uh Rahman objecting to the camera On that evening we took the decision to shift venue to the hall of the All India Trade Union Congress. It was essential that it not seem that FFF was continuing at another venue, so we took the help of Karnataka Som Hardiye Vedike (Coalition against Communalism) who agreed to speak to the audience and invite them to a workshop on documentary film. As members of the audience left JSS at the end of the day, they were given slips of paper with the address of AITUC Hall on it. Some members of the group proceeded to AITUC to set it up, and others were to join them subsequently. But as soon as the FFF group reached AITUC there was already police from the Seshadaripuram police station at the venue, speaking to the management of the AITUC Hall. They told us that we couldnt proceed with screenings of films without censor certificates. Meanwhile we were giving assurances once again from some backdoor negotiations, that the police might appear at the venue and threaten, and that when they were coming they would inform us and we should stop the screening to make it seem like a workshop. The group reconvened then to figure out the various options that lay before us, whether to go ahead with the festival and get arrested, or to cancel and do a protest at the venue, along with either a hunger relay strike to show the festival and get exemption, or to have a festival of multiple performances by artists and groups in solidarity with the cause against censorship. The decision was taken to go ahead, more or less, for pragmatic reasons such as we would not be able to mobilize a large enough protest by different movements, groups and celebrities in Bangalore within a day. This was also not a call that only FFF could make anymore, since the invitation had gone out from the Coalition against Communalism, and thus they were also an important parties to the decision of whether to go ahead with the festival in the event of possibility of arrest.


Finally Final Solutions screened at AITUC


Shoot, share and create: Looking beyond copyright makes sense in film129
- lawrence liang Why documentary and alternative filmmakers in India should start licensing their works under an 'open content' license When I was in law school, I had great aspirations of wanting to be a filmmaker, and an FTII-type (Film and TV Institute of India, a prominent school for film-making) friend told me the best place to start was to watch a lot of foreign films and documentaries. So I did that rather dutifully and spent many hours when I should have been reading corporate law, watching documentaries. My fondest memory of my placement in Mumbai with a law firm was when we took off to the Tata Institute of Social Sciences (TISS) and watched Anjali Monteiro and K P Jayashankar's film on the Yerawada prison in Pune. I gave up on the idea of becoming a filmmaker after we finally did do a documentary on law school. But by then the bug had bitten and I had fallen in love with cinema and the documentary form as well. I think watching documentaries has also made me a better lawyer than I would have been if I read Ramiaya on the Indian Companies Act. So if I have written this rather longish argument about why documentary filmmakers should start thinking about open content licenses, it is with a sense of repaying a debt. But firstly a few clarifications: what does an open content / creative commons license actually mean? Open content licenses have basically been inspired by the Free Software movement, where they try to reverse the principles of copyright to build a more vibrant public domain of materials which can be used by people.


Letter sent to documentary film makers on the Vikalp mailing list


Copyright grants the author of a work an exclusive right to copy, distribute, and create adaptations etc of his or her work. Any person using any material without the permission of the author, or without paying royalty, is presumed to be infringing the exclusive copyright of the author of the work. While copyright was initially supposed to be a means of balancing between providing incentives for authors and ensuring that works circulate in the public domain, over the past few decades this balance has been completely tilted in favour of the owners of copyright. Increasingly, one sees the use of copyright to supplement restrictions on freedom of speech and expression. A quick example: Alice Randall, an African American author, wrote a rewriting of Gone with the Wind from the perspective of Scarlett OHara's mulatto half-sister. The publishers claimed that this was an infringement of copyright and obtained an injunction against the publication of the book. Thankfully, in this case, the court of appeal overturned the injunction. Similarly, copyright licensing makes the acquisition or use of a pre-existing work very very expensive, and let's hope that we don't go down the US route where you have to take a hundred copyright permissions before you use any music, clip etc while making your own film. Think about your own experiences. If you had to pay every time you wanted to use a clip or a song, how much would that add to your overheads? A cautionary take: In 1990, Jon Else, an American documentary filmmaker, was working on a documentary about Wagner's Ring Cycle. The focus was stage-hands at the San Francisco Opera. Stage-hands are a particularly funny and colourful element of an opera. During a show, they hang out below the stage in the grips' lounge and in the lighting loft. They make a perfect contrast to the art on the stage. During one of the performances, Else was shooting some stage-hands playing checkers. In one corner of the room was a television set. Playing on the television set, while the stage-hands played checkers and the opera company played Wagner, was The Simpsons. Else thought this shot would be great to use and he went ahead and shot it; he then decided to obtain permission from the owners of the copyright in The 171

Simpsons to use the four-second clip. While Matt Groening, the creator, did not have a problem, he did not own the copyright. Gracie Films, the owner, demanded that he pay them $10,000 for the use of the four seconds. Else obviously could not afford to pay them. He could have gone ahead and used the clip, and it would have fallen under his 'fair use' right to do so. But this was too risky given that the average costs of defending a law suit in the US is $250,000. The situation in the US is pretty bleak now, and any documentary filmmaker submitting a film to a broadcast organisation has to get copyright clearances for all materials used, otherwise they refuse to broadcast the film. This sounds almost like the Indian scenario of obtaining the censor certificate for films before broadcast. From software to the other world Anyway, as a response to the stifling copyright regime, the Free Software movement began. What it did was to create something called the GNU General Public License. This license, instead of denying people access or restricting their rights over a work, made software available for all with the freedom to copy, modify, redistribute etc. It is, of course, important to remember that the word Free here refers to freedom, and not to price. The only condition was that if someone created something new out of a Free Software, then that work would also have to be licensed on the same terms and conditions, namely that it could not be taken outside the public domain. The movement has now spread to other domains of cultural production and the creative commons is the best example of how this idea is being used with respect to movies, music, documentaries, literature etc. So why should documentary filmmakers start taking the Free Software movement seriously and think about similar licensing models for their works, as well as the very idea of collaborative production for the future? Here are some sound reasons: Distribution, a major headache now: One of the biggest problems faced by documentary filmmakers in India has been the question of circulation and distribution. 172

This is an issue which has been discussed in a number of meetings as well as on electronic mailing-lists in cyberspace. If the work were available freely (again note this does not mean that you cannot charge for the documentary, but means that a person who has bought a copy may make a copy and distribute it to others), there would be far greater circulation of documentaries amongst other filmmakers, students, activists, scholars and general public. It is a fact that, currently, if you want to access documentaries, you either have to approach the filmmaker or approach an NGO (non-governmental organisation) which keeps documentaries. Greater availability will ensure greater distribution and subsequently promote documentary-film watching. If you have no problem, say so: I am sure that most documentary filmmakers do not have a hassle if people circulate their work, but it is important to remember that unless you state explicitly that people have a right to do so, to use your work etc, it is presumed that they do not have a right to do so. In that sense, copyright by default applies to your work. Which is why it is important to start thinking in terms of a pro-active licensing policy that allows people to use your work. This doesnt mean waiving all your rights: There may be one or two immediate concerns that arise. If I make my work available, isn't there a danger that someone will use my materials and pass it off as their own work? By licensing under an 'open content' license, you do not waive all your rights as the author of the work. It is really up to you to determine the nature of the usage involved. For instance, you could have a license that allows the work only to be copied for nonprofit purposes, so I can't make a hundred copies of your work and then start selling the work for profit. Similarly, by licensing under an open content license, you do not lose your other rights, such as the right to be identified as the author of the work, and 173

so on. You may allow or not allow someone to modify the work or use significant portions. Filmmakers dont live off royalty: More important is the fact that most documentary filmmakers do not live off royalty in any case. Their films are either commissioned or they earn some money from various prizes, invitations and the like. So, the fear of the loss of revenue cannot be a very serious one. But apart from the fear of loss of revenue on the filmmaker's part is the more important issue. When a filmmaker is commissioned to make a film, it is important to ask the question as to where that money comes from, and if the money comes from public funding, there should be no reason why the film that is made from public money should then become the private property of an individual filmmaker. Let's assume that the money that is provided for the film is not that great and cannot be measured in terms of the efforts that the filmmaker has put in. It is important to acknowledge that the filmmaker still benefits in terms of experience, credits, recognition, future assignments etc. Then theres the collaborative nature of filmmaking: Copyright's myth of the individual creator genius is perhaps more violently expressed in filmmaking. Filmmaking, as we all know, is perhaps one of the most collaborative of the arts, and the amount of diverse labour that goes into it is incredible. Yet, for the purposes of copyright, the author of the film is considered to be a single individual, namely the producer of the film. To its credit, the system of credits in filmmaking, especially in feature film, still recognises this process of joint authorship. Another issue, of course, is to recognise the hundreds and thousands of influences and inspirations that have gone into our own films. We need to work beyond the assumed myths of copyright law, and develop alternative practices that recognise the multiplicity that goes into the making of a film.


When we extend this principle to the making of films, we can start thinking in terms of the great benefit that making film-footage available has on filmmaking itself. I think at this point we really need to laud the efforts of a few documentary filmmakers post-Gujarat, in the form of the shared footage project. Given that we (documentary filmmakers in India) are a small community, it is important to start thinking in terms of the benefits of collaboration, prime among which will obviously be vast amounts of footage available to be used. Copyright increasingly threatening creativity: If copyright is increasingly threatening creativity, then one of the means of protecting this creativity is ensuring that we take pro-active steps that build towards an ethic of the public domain in our own practices as well. One thing is sure: the digital revolution has arrived. You have more and more people from a non-filmmaking background who want to experiment with films, use it in the course of their work etc. In that sense the media and the medium is no longer external to any of our practices. At some level, we all have to, whether we are academics or lawyers or activists, start thinking of ourselves as media professionals as well. And the great thing that digital media has done is that it has enabled almost any person to become a low-cost production studio. You have a decent computer, and you can mix and match and edit your own stuff. Tinkering cultures are a critical part of the way we are learning the grammar of new media, for instance at the Alternative Law Forum, we have been working to bring out a CD on queering Bollywood which brings together clips of subversive queer readings of Bollywood. Three years ago we would not have imagined ourselves doing it. Two students at the law school -- Warisha and Vinay -- have made their own films, one on Kashmir and one on Pakistan. I think we are living in very interesting times as far as democratic media is concerned, and we cant allow the freedom provided by technology to get curbed through a content barrier that arose in the 18th century as Copyright. 175

Its a question of politics, above all: Finally most documentary filmmakers would identify themselves as being against the neo-liberal global order. It's therefore important to start realising that intellectual property is one of the key pillars upon which this neo-liberal order is built, and important to incorporate the subjects of our film into our own practices as well. It does sound a little ironic to make a film on protests against the hegemonic order of the WTO, and then claim strong protection for your own film!


Truly yours but exclusively mine: Bio-rush in the patent era

- vishwas devaiah "Everything under the sun, made by man, is patentable provided it meets the basic requirements of novelty, inventiveness and utility." - US Supreme Court "The new genetic commerce raises more troubling issues than any other economic revolution in history." - Jeremy Rifkin The wheel is one of the great inventions of humankind; both the original invention and its spin-offs have greatly benefited human beings for generations. It is difficult to imagine the consequences if human society had conceived of the patent system at the time the wheel was invented. Imagine the situation if the inventor of the wheel insisted on sole monopoly over the invention, claiming royalty for it and controlling all future developments involving the innovation. Such an idea would surely be unacceptable to the present generation. From time immemorial the wheels of innovation have been set in motion by necessity, creativity and/or the natural human desire for achievement. Recognition by peers and society served as both motivation and reward. Yet today, the patent system, ostensibly set up to protect the rights of the inventor over the invention, is sought to be justified on the grounds that this is the way to reward the originator of the innovation. It appears that neither the joy of discovery nor service to society nor, indeed, public recognition are considered sufficient rewards in the modern age. The rich biological resources of the global South have created a rush amongst the different research houses of the North,[1] which are in a hurry to be the first to obtain patents over them. The fact that the patent systems of industrially developed countries generally do not take community knowledge into account is the basic cause of much of the conflict between the North and the South [2] over patents. This so-called divide between North and South has been exacerbated by the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). In an effort to bring the patent laws

of different countries under the umbrella of the World Trade Organization (WTO), TRIPS has completely ignored the diversity characterising various patent systems that existed prior to its arrival on the scene. The patent laws of different countries vary in principle, ideology and priorities. The paper submitted by India to the Council for Trade-Related Aspects of Intellectual Rights makes this quite clear. According to the document, International IPR regimes recognise formal systems of knowledge only. Informal systems -- e.g. the shrutis and smritis in the Indian tradition, and grandmothers potions the world over get scant recognition. To create systems that fail to address this issue can have severe adverse consequences on mankind, some say even leading to our extinction.[3] The use of intellectual property as a tool of so-called free trade has drawn flak from developing countries because the attempt introduces the concept of property rights over knowledge shared by entire communities. To the industrially developing and least developed countries of the South, it is anathema to commercialize traditional knowledge, which has evolved over centuries and which has traditionally been shared freely from generation to generation within communities. Further they deplore the modus operandi of large multinational corporations (MNCs), which first obtain information about the utility of various products of nature from local communities and then claim intellectual property rights over this knowledge by registering patents for products and/or processes ostensibly created in their laboratories even though they have merely made extractions, harvested tissues or isolated genes from the natural product. The real question is whether or not such a product or process is indeed innovative, novel and non-obvious enough to warrant a patent. In fact, can it be called an invention at all? Developed countries contend that the isolation of a chemical component from the original plant and its use as bio-pesticide, medicine or new variety of plant should rank as an invention because it is different from what exists in the natural state. This argument has enraged the South, which objects to patent protection for certain extractions of plants[4] and genes on the grounds that such patents lack novelty in view of their prior existence in nature. They argue that so-called discoveries are being 178

patented under the pretext that mere extraction and isolation from the whole (whether plant or animal) constitutes something new. Meanwhile, the North continues to profit from this arrangement. Is TRIPS then promoting knowledge piracy from the South and has it, in a way, opened the door to the patenting of plants and animals? Some sections of the South certainly believe so. For instance, the African Group within the WTO has demanded that patents on life forms be prohibited under the TRIPS agreement as they are contrary to the moral and cultural norms of their societies. [5] If the TRIPS agreement does not take into account the existence of indigenous knowledge, the North does not consider any knowledge system which is not properly documented according to their own definitions and norms or well-known within their society and culture. For example, the United States of America does not recognise the undocumented prior knowledge that exists in other countries, and readily grants patents to innovations based on knowledge prevalent in other countries. Article 27.3 (b) of TRIPS provides that member countries may exclude certain subject matters -- mainly animals, plants and biological processes -- from the patent regime. But it makes a distinction between animals and plants, on the one hand, and microorganisms on the other, allowing patent protection for the latter. This exception has been exploited by the North, which chooses to view the micro-organisms that constitute parts of plants and animals as separate from the whole. By effectively providing broader patent protection through this exception, the whole -- i.e. plants and animals -- have been brought under the patent regime through the back door. One of the objectives of TRIPS was the transfer of technology, presumably to benefit all. However, the South contends that the TRIPS regime has led to the misappropriation of its biological resources, with products and processes based on knowledge from the South patented in the North without any benefit to the former. In fact, they argue, only the North has gained from TRIPS. This article attempts to look at the role of various aspects of the issue such as the distinction between invention and discovery, the question of patents over genes, and 179

the non-recognition of indigenous knowledge about the use of medicinal plants that has led to pillaging of bio-resources from the South. Part A of the article looks at the question of whether or not the patent protection provided to micro-organisms has broadened the scope of patents to such an extent that even discoveries that do not qualify as inventions have been patented. Part B evaluates the efficacy of TRIPS as an instrument that can be used to provide protection to the traditional knowledge base of the South. A. Columbus and the great voyage in the era of patents Under normal circumstances, things that are already in existence are not patented; only inventions are supposed to be patented. However, patent laws framed in accordance with the TRIPS agreement and the national patent laws of many WTO member countries do not explicitly define or distinguish between inventions and discoveries. For example, the UK Patent Act of 1977 excludes discoveries, scientific theories and mathematical methods from the patent regime.[6] However, Article 27(1) of TRIPS provides that patents shall be made available for any inventions -- product or process - in all fields of technology provided that they are new, involve an inventive step and are capable of industrial application. The agreement fails to define terms like new, inventive step and industrial application, leaving the door open for interpretations that suit the interests of the more dominant member states. The principal question in this context is: what can be patented -- i.e., what is the legitimate subject matter of patents? According to Article 27.3(b), "M embers may exclude from patentability plants and animals other than micro-organisms, and essential biological processes for the production of plants or animals other than nonbiological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof." Clearly, according to TRIPS, micro-organisms must be provided patent protection. But the Article fails to provide an exhaustive list of subject matters that cannot be patented. This has led to a broad reading of the provision by some of the developed countries, especially the US.


The 1952 US Patent Act imposes only four requirements for patentability -- ie, the claimed subject matter must (i) have some practical utility, (ii) be either a process or a physical embodiment of the invention, (iii) not be disclosed, with limited exceptions, in prior art, and (iv) not be obvious based on prior art.[7] According to Linda J Demaine and Aaron Xavier Fellmeth, in their article Reinventing the Double Helix, this has led courts to conclude that a patent applicant need not invent the subject matter claimed (eg, he/she may merely have discovered a pre-existing DNA sequence or protein), as long as the precise subject matter was unknown before the applicant discovered it.[8] US patent laws do not clarify whether discoveries are patentable. It is important to draw a distinction between discovery of things already in existence and discovery of things that were not in existence prior to the discovery.[9] In other words, the discoverer might have found a thing already in existence but unknown to the world, but this does not qualify for the novelty requirement. On the other hand, an invention is, by definition, a new creation, consciously sought and successfully reduced to practice by the inventor.[10] For example, if I consciously seek to obtain purified tungsten out of naturally occurring tungsten oxide, then the purified tungsten that I create could be regarded as patentable under this definition. Interestingly, US courts had denied a patent for the above product about half a century ago, viewing it as a mere discovery.[11] But since the 1980s there has been considerable change in the approach of US courts, which now seem to extend patent protection to discoveries, blurring the distinction between invention and discoveries that they used to make earlier. A discovery (ie, unearthing what is already in existence but was unknown until the act of discovery) would not satisfy the inventive step or non-obviousness criteria which are necessary for a subject matter to be eligible for patenting. Article 27.3(b) does not precisely outline the subject matter that can be patented. This allows scope for interpreting discoveries as patentable if they fulfil the utility criterion. If the agreement had explicitly excluded discoveries from being patented, developed countries could not have extended patent protection to noninventions, especially in the area of biotechnology. Res Nullius and the Indians of the patent law: 181

US courts have tried to apply certain tests to arrive at a conclusion about whether or not a product or process is patentable. For instance, they have on occasion followed the purification doctrine to determine patents. According to this doctrine, Naturally occurring phenomena are not patentable subject matter, both for reasons of policy and because such discoveries fail to fulfil the essential requirement of creative or ingenious mental step up. If the identification of a natural substance could not give rise to a patent on the substance, making minor alterations to that substance would not create patentability.[12] In other words, the mere purification and isolation of a DNA molecule or a protein does not amount to an invention because nothing new is created, since the claimed biochemical previously existed in nature, albeit in a different form.[13] Despite this doctrine, however, the United States has granted a number of patents to products which constitute a mere purification or isolation of a gene or a DNA. In the instance of the neem patent, for example, the big question that follows from the above is: how can an extract from the neem tree be patented? W R Grace, the company that owns the patent, does so only on the basis of the identification and extraction of the specific chemical in the neem tree (azadirachtin) which gives the tree its pesticidal properties. Thus a mere extraction was patented even though it existed in a different form in nature and despite the fact that the isolation and purification of the chemical did not lead it to perform a new or different function. Usually a change in the physical form of a product (eg, granules to powder, solid to liquid) or a minor chemical conversion (eg, conversion to salt, base, acid, hydrate, ester, or addition or removal of a protection group) would not amount to any material change in the subject matter.[14] The respective characters of the natural substance and the claimed product have to be assessed with the aim of determining whether or not they are substantially different. If the characters are not substantially different, the claimed product is unpatentable because it already exists as a natural substance and there is nothing new in the claimed product.[15] Who owns your DNA? A recombinant DNA is actually an imitation of the naturally transcribed gene. A product that is an imitation of the original cannot be patented.[16] According to Ned 182

Hettinger, the isolation of a gene is not the same as the invention of a gene. Placing a gene or several genes into an embryo and allowing the organism to develop is an alteration, not a creation,[17] since no substantial transformation is involved. Accordingly, a recombinant DNA should technically not be patented. Yet a cell line from a woman was patented in the United States : "In 1993, a patent claim was on the cell line of a 26-year-old Guayami woman from Panama. Her cell line is of interest because some Guayami people carried a unique virus which was useful in AIDS and leukaemia research. Protest by international groups and the Guayami General Congress led to the withdrawal of the patent claim in November 1993."[18] Although the patent was withdrawn, it is important to deal with some of the questions raised by the case: How is a cell line extracted, isolated and purified from a woman different from the cell line that exists within her? What is new about the extracted cell line that it can be patented? Does it perform any function different from those of the naturally occurring cell line? Prior to the 1980s the US Supreme Court had clearly stated that the invention requirement demands that the applicant who modifies a product of nature create a new product, the function of which is not the same as the natural product from which the invention derives. [19]However, from 1980 onwards US courts have relaxed the requirements, thereby enabling the grant of patents over genes, cell lines, etc. Each DNA sequence has only one biological function -- ie, translation into proteins. Each gene codes a protein. Thus, the single biological function of each DNA sequence is inherent in the sequence. The discovery that a particular DNA sequence produces a particular protein and the isolation of such a sequence is not by any standards a substantial transformation since the purified DNA sequence performs the same function as the natural DNA even if it is inserted into the genome of a new species. Thus, there is nothing new to be patented in a recombinant DNA. It is, in effect, no different from extracting vitamin C from lemon juice or getting purified tungsten by burning out oxygen from the naturally occurring tungsten, neither of which have been granted patents because no invention is involved in such claims.[20] It can, therefore, be said that isolated and purified, but naturally occurring, bio183

chemicals are unpatentable on the ground that no invention is involved in view of the fact that the purified version does not depart significantly and/or functionally from what occurs in nature.[21] However, the United States Patent and Trademark Office (USPTO) recently established guidelines for issuing patents which emphasise the utility criterion and encourage MNCs to patent even the slightest modification. It has completely ignored comments from different groups and developing countries that had urged it not to issue patents for genes on the grounds that genes are not inventions.[22] In fact, the document states that when Congress enacted the patent statutes, it specifically authorised issuing a patent to a person who invents or discovers a new and useful composition of matter, among other things Thus, an inventors discovery of a gene can be the basis for a patent on the genetic composition isolated from its natural state[23] In the process, the new guidelines suggest that discoveries may also be patentable. This has made it possible for discoveries (as opposed to inventions) to be patented since even slight alterations of naturally existing materials can be seen as meeting the utility criterion. The problem with discoveries being patented is that, to begin with, there is just a thin line between invention and discovery and, then, in the instance of life forms, the line is even more blurred. The failure of TRIPS and individual countries to clearly distinguish between invention and discovery has worked to the advantage of MNCs, with the resulting ambiguity leading to the grant of patents to a variety of so-called discoveries. B. Ludicrous legitimacy and sanctimonious right Prior to the TRIPS agreement, there was no uniformity in the patent laws of various member countries; in fact, some countries did not have any patent legislation in place. Indias patent regime excluded from patentability discoveries and subject matters relating to agriculture, pharmaceuticals etc, which were considered public goods placed above private rights.[24] Life forms were also excluded from the Indian patent system. The glaring differences between the TRIPS agreement and the existing patent legislation of countries like India were largely responsible for the friction between developed and developing countries over IPR. Developing countries of the South 184

allege that, by allowing discoveries to be patented, TRIPS has permitted the misappropriation of traditional knowledge, which has resulted in Northern MNCs profiting from the biological resources of the South. In the landmark Chakrabarthy[25]case, in which a patent was granted for the first time over a life form, the US Supreme Court ruled that the creation of an oil-eating microbe is patentable. This precedent triggered a spate of broader patents. For example, a patent has been issued over an animal (eg, the Harvard Onco mouse -- so named because the scientists had genetically modified a mouse to be susceptible to cancer, which is useful in cancer research)[26]. Patents have also been granted over plants, like the Mexican Enola bean, basmati rice and extracts from neem. This means that other signatories to the TRIPS agreement may have to provide protection to these patents as the agreement extends patent protection to micro-organisms and nonbiological processes. Patent protection over a genetically modified organism would cover patents over plants and animals. For example, a patent granted by the USPTO in 1994 to Agracetus, a biotechnology company, effectively covers all transgenic soya beans. Moreover, species patents such as this one are so broad that they can be effectively used to block competition and further improvement in the same species.[27] Cashing in Multinational companies of the North have obtained information from indigenous people in the South regarding the use of plants with medicinal value, and have then gone on to simply identify the exact chemical components responsible for the medicinal value in their labs and to then acquire patent over them. For example, the US timber importer, Robert Larson, observed the use of the neem as a bio-pesticide in India and began importing neem seeds to his company headquarters in Wisconsin.[28] Over the next decade, he conducted tests on extracts from neem and finally received a patent for extracting azadirachtin (a chemically active substance) from neem, which he later sold to the MNC, WR Grace.[29] The indigenous knowledge developed over centuries, passed on from one generation to another, is recognized by some developed countries like the United States as prior art only if it has been recorded in writing. This has enabled research institutes to 185

obtain information from indigenous people and patent their knowledge by merely identifying and isolating particular chemicals or giving scientific names to age-old practices. Moreover, TRIPS does not protect indigenous knowledge, thus enabling MNCs to earn huge profits without paying even a penny to the people who are the sources of the original information. Indigenous and local communities lack the means to obtain intellectual property protection over their innovations. Although the significant amounts of biological resources used and maintained by indigenous people are useful to industry and to the world community, there is no effort to provide protection to this knowledge.[30] Moreover, the North disregards such knowledge as unscientific and, consequently, their laws do not permit the patenting of such knowledge.[31] Patents should not be provided when such knowledge is merely transformed and presented in a scientific manner. For example, Lord Hoffman had said, It was not necessary for an active substance to be identifiable or reproducible for it to have been made available to the public.[32] He gave the example of Amazonian Indians who had known for centuries that the cinchona bark can be used to treat malarial and other fevers. It was only in 1820 that quinine was isolated and extracted from the bark. According to him, the Amazonian Indians who believed that the effect of cinchona was due to the spirit of the bark could know about quinine even though they did not know the chemical by name, nor its chemical structure. If one were to take a cue from this, it would follow that plant and animal products, including herbal preparations, lack novelty even if there is no prior public knowledge of the presence of a particular active substance that produces the desired results.[33] Thus it can be said that most indigenous people know about the utility of the biological resources in their region and use them for various purposes. It would be unfair to award patents over products based on such indigenous knowledge without due credit being given to the original holders of such knowledge. It is totally unjust to allow multinational companies to exploit such knowledge in order to reap rich rewards for themselves without enabling any benefit to flow back to the indigenous people who possessed the knowledge in the first place.


Developing countries are, therefore, justified in demanding a review of Article 27.3(b) and asking for indigenous knowledge to be protected under the TRIPS agreement. The African Group, in its joint communication to the WTO, has urged that the following modifications be made to the agreement: Inclusion of provisions to prevent bio-piracy as well as to protect traditional knowledge;[34] Recognition of the right of traditional communities or traditional practitioners to decide whether or not to commercialise their knowledge; [35] Inclusion of a provision mandating prior informed consent from indigenous people for the use of their knowledge and preventing third parties from using, offering for sale, selling, exporting or importing their knowledge without such consent;[36] Inclusion of a provision guaranteeing full remuneration to indigenous communities for their traditional knowledge.[37] The views expressed by Latin American countries and India are more or less on similar lines.[38] An uneasy silence Prior art is one of the means available to ascertain the novelty of a patentable invention. According to this, if the claim asserted in the patent specification already existed in the public domain, whether in written form or oral, then that is taken as prior art and the supposed invention fails to satisfy the novelty criterion. However, some countries do not recognise oral forms of prior art that are prevalent in territories other than their own. For instance, the medicinal plant called Phillanthus niruri has been well-known and widely used to treat jaundice throughout southern India since time immemorial. However, the US patent office granted a patent to the extract of the plant on the grounds that it serves the utility requirement through its efficacy in treating Hepatitis B.[39]


In the case of neem extractions, many complex processes have been developed over a long period in India to make various products for specific uses, even if the ingredients were not given scientific names. Moreover, common knowledge about and use of neem was one of the primary reasons given by the Indian Central Insecticide Board for not registering neem products under the Insecticide Act, 1968. Dr R P Singh of the Indian Agricultural Research Institute asserts that the patented extract (the patent held by WRGrace for extraction of a stable solution of azadirachtin) is an ethanolic extract of the neem seed kernel, which they had extracted a number of years earlier but had not sought a patent for.[40] Thus, the process described by W R Grace, which leads to stable formulations, was well known in India at the time it was patented in USA. This fact was completely disregarded by the US Patent Act, which recognises the prior art of foreign countries only in a recorded (written) form. The TRIPS agreement is silent about prior art, although it does require that patents be granted only to non-obvious inventions. Herein lies the problem. Since there is no uniformity in the patent laws of various countries, this omission has resulted in patents being granted by developed countries, especially the United States, over undocumented knowledge existing in other parts of the world. This anomaly has certainly led to the misappropriation of indigenous knowledge Conclusion The failure of the TRIPS agreement to distinguish between invention and discovery has encouraged developed countries to patent discoveries, and the absence of protection for traditional knowledge has allowed multinational companies to appropriate traditional knowledge, with little or no acknowledgement of the source of such knowledge. The patenting (owning) of life forms is anathema to the values of indigenous people. Multinational companies have capitalised on the situation by patenting such knowledge without much opposition from indigenous people, who have neither objected to the grant of such patents nor made an effort to demonstrate that the products or processes were well-known and widely practiced in their communities possibly because, in most cases, they are not in a position to keep track of such developments all over the world. 188

Moreover, the failure of the TRIPS agreement to recognise community knowledge as a form of property right has compounded the problem. Indigenous knowledge is not well situated to stake a claim against the modern patent system, mainly because it is hardly ever documented. The non-recognition of such undocumented knowledge as prior art means that the patents granted in recent years prevail over centuries-old traditional indigenous knowledge. Developing countries are, therefore, justified in demanding protection for indigenous knowledge under the agreement in order to prevent further misappropriation of indigenous knowledge.
Endnotes: [1]The term North is used here to refer to industrially developed countries in the global North, which are not as rich in biodiversity as the industrially developing countries of the global South. The terms North and South have been commonly used by academicians and activists writing on issues relating to TRIPS and indigenous knowledge eg, Vandana Shiva, the Third World Network, GRAIN, RAFI, etc. North has also been interchangeably used with West, western system, etc. North refers not only to industries and transnational corporations based in the so-called developed countries but also the governments of these countries -- e.g., The National Institute of Health in the USA has been in joint research with private corporations. [2] South refers to developing countries as well as industrially underdeveloped countries. The TRIPS agreement classifies WTO member countries as developing and least developed countries. While using the same classification here, the term South is also being used to refer to the governments, indigenous communities, NGOs and activists of the countries of the South who have supported the cause of the South. [3]Communication from India (1999), Review of the Provisions of Article 27.3(b), (IP/C/W/161). http://docsonline.wto.org/GEN_ viewerwindow. asp?D:DDFDOCUMENTS/T/IP/ C/W161.D [4]E.g., extractions from the Neem plant [5]Joint Communication from African Group (2003), Taking forward the review of Article 27.3.(b of the TRIPS Agreement, (IP/C/W/404) http://www.ige.ch/E/jurinfo/pdf/IP-C-W404.pdf, (accessed on 10-08-2003) [6].Cornish, W.R (2001), Intellectual Property, Patents, Copyright, Trade Marks and Allied Rights, First Indian Reprint, Universal Publications, Delhi, pg 177. [7]Demaine,L.J & Fellmeth, A.X. (2002), Reinventing the Double Helix: A Novel and Nonobvious Reconceptualisation of the Biotechnology Patent, 55 Stanford Law Review 303-462, pg 310 [8]ibid , pg 310 [9]ibid, pg 370 [10]ibid, pg 370 [11]General Electric Co. v De Forest Radio Co, cited in Demaine,L.J. & Fellmeth, A.X. (2002), Reinventing the Double Helix: A Novel and Non obvious Reconceptualisation of the Biotechnology patent, 55 Stanford Law Review 303-462, pg 340 [12]Demaine,L.J & Fellmeth, A.X. (2002), Reinventing the Double Helix: A Novel and Non obvious Reconceptualisation of the Biotechnology patent, 55 Stanford Law Review 303-462. [13]ibid [14] ibid , pg 405-406.


[15].Demaine, L. J & Fellmeth, A. X, Natural Substances and Patentable Inventions, http://www.science mag.org/ cgi/content/ full/300/ 5624/1375?ijkey=E37.td4LbRZJ.&keytype= (accessed on 25/08/2003) [16] ibid [17]Hettinger, N (1995), Patenting life: Biotechnology, intellectual property and environmental ethics, Boston College of Environmental Affairs Law Review, 289. [18]Debra Harry (1995) Patenting Of Life and Its Implications For Indigenous Peoples, http://www. rz.uni-frankfurt.de/~ecstein/gen/iatp/ipr-info7.html [19] Funk Brothers Seed Corporation v Kalo Inoculant Co. (333 U.S. 127 (1948).; American Wood Paper Co. V Fiber Disintegrating Co [90 U.S. (23 Wall.) 566 (1874)] cited in Demaine,L.J & Fellmeth, A.X. (2002), Reinventing the Double Helix: A Novel and Non obvious Reconceptualisation of the Biotechnology patent, 55 Stanford Law Review 303-462, pg 409. [20]Demaine,L.J & Fellmeth, A.X. (2002), Reinventing the Double Helix: A Novel and Non obvious Reconceptualisation of the Biotechnology patent, 55 Stanford Law Review 303-462 [21]Demaine,L.J & Fellmeth, A.X.,(2002) Reinventing the Double Helix: A Novel and Nonobvious Reconceptualization of the Biotechnology Patent, Stanford Law Review 303-462 [22]Federal Register/Vol. 66, No.4 , www.uspto.gov/web/offices/com/ sol/notices/utilexmguide.pdf [23] ibid [24] Section 3 of the Indian Patent Act 1970 [25] (1980) 110 S.Ct 2204 [26] [1990] E.P.O.R 501 [27] GRAIN (2000) Of patents and Pirates: Patents on Life: the final assault on the commons, www.grain.org/publications/pirates-en.cfm, (accessed on 10/8/03). [28] Shiva , V.,(1996) Protecting our Biological and intellectual Heritage in the age of Bio piracy [29] ibid, [30] Brush, S. & Stabinsky, D. (eds) (1996), Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, Island Press, Washington DC [31] Koon, O.C., Intellectual Property Protection of Traditional Medicine and treatments in Malaysia in Micheal, Blackeney, (eds) (1999), Perspectives on Intellectual Property Rights, Intellectual Property and Ethno biology, Vol 6, Sweet and Maxwell, London, pg 162-163. [32] ibid, pg 166 [33] Koon, O.C., Intellectual Property Protection of Traditional Medicine and treatments in Malaysia, see Micheal, Blackeney, (eds) (1999), Perspectives on Intellectual Property Rights, Intellectual Property and Ethno biology,Vol 6, Sweet and Maxwell, London, pg 166 [34] Joint Communication from African Group (2003), Taking forward the review of Article 27.3.(b) of the TRIPS Agreement, (IP/C/W/404) http://www.ige.ch/E/jurinfo/pdf/IP-C-W404.pdf. [35] Joint Communication from African Group (2003), Taking forward the review of Article 27.3.(b of the TRIPS Agreement, (IP/C/W/404) http://www.ige.ch/E/jurinfo/pdf/IP-C-W404.pdf. [36] ibid [37] ibid [38] Submission by Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, India, Peru, Thailand Venezuala (2003), The relationship between the TRIPS Agreement and the Convention on Biological Diversity and the Protection of the Traditional Knowledge, (IP/C/W/403). [39]Shiva , V(1996) Protecting our Biological and intellectual Heritage in the age of Bio piracy [40] ibid


IPR and Media: Emerging Paradigms

- anuja mirchandaney

The current intellectual property rights (IPR) regime is an instrument, through which access to new technology is obstructed for some people and at the same time an instrument through which traditional knowledge (TK) can be exploited by others. This is the message that came through in the conference held on 5-7 April 2004 on 'IPR and Media: Emerging Paradigms'. Organised by Voices, Madhyam, WACC and ALF, it covered a gamut of intellectual property issues ranging from contemporary media practices to traditional art and folklore to medicinal plants and its associated TK. The conference saw ex- High Court judges, legal practitioners, researchers, and academicians presenting papers. Some of the speakers, were of the view that the law relating to IP could accommodate the demands thrown up by holders of traditional knowledge. Others, that the unique nature of the commodity- be it software or traditional knowledge pertaining to folk art or medicinal plants- meant that there was an incongruity between them and intellectual property law which rests on certain basic premises of tangible goods, 'ownership', and 'authorship'. One of the first speakers, Lawrence Liang of the Alternative law forum, in his presentation on ----'Contemporary media practices and conflicts around property,' mapped out interesting linkages between every day media practices and its links with the formal law on copyright. He pointed out that each person in the audience would be guilty of one form or the other of copyright infringement, be it burning CD's which we had no 'right' to 'copy' (hence the origin of the word 'copyright'), xeroxing copyrighted texts, or buying pirated novels. In a talk where IP law intermingled with politics and sociological issues, Liang spoke about the development of an 'Indian modernity'. He spoke about the failure of Nehru's 'monumental imagination of modernity,' which left out large sections of the Indian population. Yet some form of modernity has been achieved by the left out, which he termed "jugaad modernity", and 191

this is necessarily through illegal, grey market practices. 'Jugaad' is a colloquial Haryanvi expression meaning 'make do', getting a desired result through short cut and 'devious' means. He spoke about the development of Indian media, focusing on the music industry, which in the last two decades has grown phenomenally precisely because of the use of grey market practices including copyright infringements. These kind of illegal practices also gave rise to interesting results; he said, it allowed for diverse forms of media and a diverse aesthetics. Music producer, T Series, a new entrant in the 80's that clawed its way up to the position it is in today had in his words, an 'elastic idea of legality'. One of their strategies was to exploit the little known provision of the copyright act which allows 'versions' of the original without requiring permission from copyright holders. They would the get lesser-known Anuradha Paudwal to sing covers of popular songs by Lata Mangeshkar. The name of the song would be splashed in bold letters on the cassette cover, and in fine print 'sung by Anuradha Paudwal'. Using an unprecedented distribution strategy, their cassettes would be stocked with the local 'paan' or beedi/cigarette vendor. They focused on genres, which established companies like HMV did not touch, like local Bhojpuri, haryanvi etc. Liang pointed out, the current outcry against piracy is silent about the ghazal singer who sells his copyright to a record company and then goes to a grey market seller to release pirated versions of his song so that he can get widespread audience. Or the big record companies who having been unsuccessful in battling piracy now approach the grey market to sell music over which they have copyright with the condition that they get a cut of the profits! From the discussion on contemporary media the focus shifted to the traditional: Folklore and Art. Sponsored by Madhyam, Dev khan a member of 'Ghazi khan and troupe,' an indigenous performing group from Rajasthan, spoke in Hindi about the impact of commercialization on them. He belonged to the Manganiyar community, traditionally a community that earned its lively hood through music - an integral part of their lives. He spoke about a Bollywood music director taking their folk songs and adapting it to make huge profits without paying the community any royalties. A process of plagiarisation that had not stopped with the popular


song Nimbuda' from the hit Hindi film, 'Hum Dil De Chuke Sanam'. He said that not only were they not paid royalties, it meant that their own version of the song would no longer be in demand. A similar sorry state of affairs was narrated by Narayan Swamy, a folk artist from Shimoga: he said they had managed with the help of NGO's to market their products (largely gift items) which bore their traditional hand painted designs. They were now facing a crisis, with local manufacturers copying their designs and printing them on similar products produced on a large scale, and therefore at much cheaper rates.

These narratives highlight the challenges facing intellectual property law today from the point of view of traditional knowledge. IP law defines and regulates ownership and control over 'intellectual property' i.e. scientific inventions and original works of Art (including literature and the performing arts). This it does through a system of granting 'patents' and 'copyrights'. As mentioned, at the base of IP law is concepts such as 'owner' and 'author'. In the case of traditional knowledge, which has passed down from generation to generation and often practiced by a group of people, who is the creator and who is the owner of that knowledge? Does Dev Khan get the copyright for his song? Or does his community? And if his community should own the copyright, how should their folklore be managed for the larger good? Further, to be protected the law demands that the knowledge must be in a tangible form (called ' fixation requirement'), and has been created at a fixed point in time. Another aspect of traditional knowledge is that it's not preserved in black and white but handed down from generation to generation in oral and not a tangible form, and is constantly evolving and mutating. While acknowledging the inadequacies of existing IPR regime in protecting traditional folklore, Manisha Gupta, researcher proposed a sui generic system of protection (i.e. a system moving away from the existing form of legislation). She was of the firm view that traditional knowledge needs to get commercial value through a process of improvisation. But to exploit traditional designs there is first a need to develop a benefit sharing mechanism, such as sharing royalties which will benefit the community from which it came. She averred, sharing with the community can be a means of creating sustainable livelihoods.


Vishwas Devaiah, researcher with the Alternative Law Forum, was however critical of the existing IPR regime or even a sui generis system's ability to protect the interests of community holders of traditional knowledge. He pointed out the failure of benefit sharing in the case of the Kani tribe in Kerala and the commercial exploitation of a medicinal plant 'arogya pachchi' cultivated by them. Benefits have not yet reached all the tribals and the group itself is split up the making the disbursement to the various beneficiaries difficult. He endorsed instead the approach of the open source movement, which is that of not treating any form of knowledge-traditional or otherwise - as private property. He believed that under existing laws of contract, and by creation of trusts, the community in question's interest could be well protected, at the same time allowing outsiders to have access. Thus, under existing laws the ownership vests with the community, but it would be open to any person having an interest in it, to duplicate, or modify the knowledge in question, with the rider that he/she leaves their value-added knowledge in the public domain. Secondly as in the case of folk art/ songs, not do anything that would offend the sentiments of the ownercommunity. Such conditions can be incorporated in an open-source document, he said. Speaking about another kind of traditional knowledge, Dr. NS Gopalkrishnan, from the Cochin University of Science and Technology, a well-known and respected authority in this country on IP law, gave an analysis of legal debate on IPR and biodiversity. He laid out the context of the emerging concerns, the issues, and the international as well as the domestic legal response. He spoke about the upsurge of interest in the West in India's genetic resourcesa development due to the prominence of biotechnology as a fast growing sector of the global economy. Pharmaceutical giants see a tremendous potential for wealth generation through the use of new technology on genetic resources. India's medicinal plants and the associated traditional knowledge is thus 'a commodity for International trade'. Traditional knowledge of plants act as a lead for the research and development of new products and this has implications in IP law: Gopalakrishnan averred that IP law is being used to convert traditional knowledge into private property. There are a large number of patents in the US based on Indian medicinal plants( entities). some owned by private Indian


The demand for traditional knowledge and genetic plant resources includes the demand for disclosure, i.e. access to documented and oral information. This has led to initiatives to create databases to document information that was hitherto preserved through oral traditions. Tongue in cheek, he said the western legal system is structured to protect knowledge only if it is in black and white! The emergence of intermediaries, including owners of databases and gene banks is a 'worrying factor' because it was leading to a decline in traditional practices and traditional agricultural and health care systems. He presented a detailed legal analysis of the laws covering exploitation of medicinal plants and associated traditional knowledge such as the Trade Related Intellectual Property (TRIPS) Agreement, the Convention On Biodiversity, the Indian Biodiversity Act as well as the Indian Patent Act, 1970. He said that although the Indian Patent Act prevents patents on all traditional knowledge, it is silent on derived, isolated forms of medicinal plants. For example, it would prevent the patenting of turmeric, but if one were to isolate one property of turmeric which can reduce dark spots in the skin and combine it with other elements to create a new product then the Patent Act does not bar this. He concluded by suggesting new norms needed to protect traditional knowledge where a community's customary right over traditional knowledge is legally recognized, and it is administered through a decentralized administration. The myriad views, all seemed to indicate that present IP law was but an instrument of the free market, and used to confer monopolies on what was for eons, knowledge in the public domain. Questioning ideas of 'author' and 'originality' and more than anything else, the notion of illegality and what was 'right ' and what was 'wrong' when the operation of a law worked against the interests of the larger good.