India's Search for Progressive Law

Sandipto Dasgupta, Columbia PhD of political science, gave a thought-provoking and lively talk on the Indian Constitution at my department this month. It was part of his long-term book project Legalizing the Revolution. He uses the important concept that critiques how legalism imposes linguistic constraints on the outcome, and thus makes law always backward-looking: precedence necessitates future decisions. Yet he argues that the Indian Constitution has a potential to become a more revolutionary document than other existing ones. It embodies transformative constitutionalism, termed by K. Klare in a 1998 essay, characterized as legally-driven empowerment and change. In South Africa, for example, readings of the Constitution focuses on issues such as "multiculturalism, close attention to gender and sexual identity, emphasis on participation and governmental transparency, environmentalism and the extension of democratic credentials into the ‘private sphere’."They are in contrast with contractual constitutionalism like the American and French Constitution, which has checks and balances as well as judicial review that prevents it from later turmoil. 

Land reform is one of the most important example regarding the Indian constitution's progressive status and interpretation. Dasgupta argues that this precedent made the later judicial activism through public interest litigation regarding environmental issues in the 1980s possible. Land reform was accepted as an important process to be implemented by the Congress Party when they come to power: on the one hand for the purpose of creative an equitable society in response to peasant movements, and on the other hand, for removing less productive feudal structures as part of the Modernization project.

Congress leaders also agreed that it should be compensative land reform, in which landowners would be compensated. Lawyers faced the problem of how to use it to implement the compensation: How much should the law compensate for land reform? The process is complex and one cannot tie it to one term because contexts vary. There was a consensus among the legal writers that there should be no qualifiers for “compensation” and that the local judiciary representatives should decide. There should have some coherent principle followed throughout the process, but it does not have to be good or just.

One example Dasgupta provided was the Bela Banerjee case. Her land was taken to resettle Partition refugees in Bengal in 1950. Yet Mrs. Banerjee only got compensation from the 1946 price, which has increased since. The Supreme Court declared that this act was unconstitutional because the word “compensation” implies just equivalence and should correspond with market value. I could not help but notice how this process was so much more calculated and technical than the impromptu tribunals in China's land reform that not only took away landowners land, but also in some cases executed them.

Dasgupta notes that this reform was not based on the notion that everyone has natural rights to property. My issue with this framework is the lack of foundation. If rights, such as right to land, are not absolute, the interpretation of them can go in many directions. The interpretive law can fall back on "Hindu" or "Islamic" custom like the British rulers, or it could be used for a progressive goal like land reform. This is the classic problem regarding constitutionalism in the U.S.: Interpretation v. Original Intent. I am not familiar with common law and the British probably have a different understanding based on their law; for example, while the U.S. Supreme Court may legalize gay marriage under the 14th amendment, the British law could have the same outcome with different legal reasoning. Yet I still think that one should have to have a clearer idea of what the ideology is when arguing for a progressive Indian constitution. 

Jawaharlal Nehru thought that writing better text could could help the political mandate of post-independence social justice and bypass conservative roadblocks, yet both Nehru and Dasgupta notes that the class status of lawyers was another issue new legal language could not bypass. Dasgupta quotes Nehru, the Indian constitution "has been purloined by lawyers." The parliament wanted to use legalistic language to mediate the process, but the parliament also has to cede the interpretation powers to lawyers or expert committees. Dasgupta is acutely aware of the question of interpretation under constitutionalism, and I look forward to reading analyses of central themes in Indian legal interpretation, perhaps with more case studies.


Race and Gender in Music

What is the boundary of a tradition or genre? Music grants creative license, and market forces are increasingly determining the success of musicians rather than politics expressed in the music. This creates problems such as cultural appropriation, and the clear solution is not yet to be found. Jazz started as a music genre that expressed black suffering and the African American experience. Nowadays it is often associated with upper-class taste and elevator music. Yet one also finds it hard to call for a purge in all elements that are inauthentic.
The politics of culture remains an important issue for the Indian diaspora in the Caribbeans, as Tejaswani Niranjana shows in her book Mobilizing India: Women, Music, and Migration between India and Trinidad. The diaspora faces the anxiety of trying to prove they are also adherents of “Indian culture,” which dangers on feeding into Orientalist interpretations of hierarchies of authenticity. Some migrants from India have treated caste as a personal ascription and adopted the styles of conduct to appear as a twice-born. Due to the disproportionate ratio of male to female migrants, caste endogamy to the extent of “back home” was almost impossible. This trend has led to people like controversial writer V.S. Naipaul to think of the diaspora in the Caribbean as “mimic men” and have not “produced anything.” Some of them have thus tried to show their continuance of (Hindu) tradition at home and racial similarity and create exclusionist cultural projects. The left in Trinidad thus faces problems of race, where colonialists and racial purists on both sides tried to maintain an antagonist position toward each other’s interests, despite working class similarities.

Derek Walcott responded in a momentous Nobel Prize speech that the Caribbean has always been looked in a way that it is "illegitimate, rootless, mongrelized." It stems from an expansionist idea that the Caribbeans across the ocean “is new, this is the frontier, the boundary of endeavor, and henceforth everything can only be mimicry.”[Women, Music, and Migration between India and Trinidad. 37.] Yet there is undue appreciation to the innovative uses of the mix in chutney-soca, with Trinidadian English as well as Bhojpuri Hindi being featured in explicit songs. In ways chutney-soca songs are more authentic, organic, and egalitarian than some other "traditional" Indian songs. As Walcott eloquently asked, why are these practices "not 'celebrations of a real presence'? Why should India be 'lost' when none of these villagers ever really knew it, and why not 'continuing'?"

Soca music events allows for many working class women to participate in festive cultural expression, even while incurring wrath from conservative commentators. There are many suggestive lyrics, such as those sung by the famous Drupatee, which have suffered the ignominy of vulgar or obscene. Others stated that "no Indian woman has any right to sing calypso."[Ibid. 112-3.] Racial purity, like caste purity, relies heavily on the circumscription of actions of a community’s women. Hindu opinions in Trinidad has are parallels with Confucian projects in China, such as the House of Female Virtue (女德馆) in which claims to tradition and cultural authenticity threaten female self-respect, freedom, and mobility. The question of gender is under-explored in the quest for authenticity. Trinidad provides a great ground for research since it carries many intersectional questions. Tejaswani Niranjana’s book is a great analysis for the politics of class, race and culture.

Fore more: see documentary on Calypso-Soca music, Jahaji Music


Inequality in the Business of Surrogacy

Carvings of men and women on Jagdish Temple, Udaipur. Photo credits: Adrian
Last month, Dr. Sheela Saravanan gave an excellent colloquium talk based on her research of commercial surrogacy in Gujarat. She highlighted the economic and legal inequality in these transactions. For example, Indian surrogates are not even given the copy of the contract and have little knowledge of the legal guidelines, while US surrogates have a choice over closed or open contract and choose the closeness of the ongoing relationship between her and the intended parents. The participants of the colloquium asked great questions, such as the role of doctors. Doctors have a lot of power to conduct this business and there seemed to be minimal regulation; there is still no authoritative data on the number of surrogate births in India. A Mumbai doctor in the business once even replied to Saravanan’s persistent questioning, “We are doing a favor for the mothers.” Another question asked the caste background of the surrogate mothers. One of the clinics Saravanan researched had a book of surrogate profiles for the intended parents to browse. In that book, most of the intended parents ask about religion and usually wanted mothers to be of the same religion. Furthermore, if the surrogate mother was a Brahmin, then she could receive more money. If one is better looking then one would also have higher chances of being chosen from the book. Yet this process does not occur in the reverse: the surrogate would not choose the parents or sometimes not even the number of fetuses inserted in her body.

Inequality between the global north and south pervades medical tourism. Indian film Ship of Theseus poses bioethics questions in one of the segment where an illegal organ trader poached a poor Indian man one of his kidneys. The organ trader provided it to man who needed a new kidney in Europe who knew nothing about the source. Later two Indian good Samaritans traced down the European man and questioned him about this problem. The European man coughs up more money for the man who lost a kidney, yet one of the Indians saw this act as an easy way for the European man to buy out of his guilt. The segment ends with the good Samaritans bringing the Indian man the money but still feeling ambivalent regarding the nature of the trade. Surrogates who sign up for money in the global south also are susceptible to deceit. The 10-minute documentary Mothers Anonymous shows that surrogates who give birth to twins or triplets may not always receive the promised compensation and have few legal channels of dispute. Saravanan noted in her paper on surrogacy that “Asymmetries of individual capacity (knowledge, contacts and financial capability) lead to trust amongst actors. This trusting process results in experiences that can either be positive or potentially exploitative.”

But the starkest aspect related to surrogacy among the many forms of medical tourism is the gender aspect. Many kinds of medical tourism arguably can become more transparent and legally regulated for both parties, but the gender issue of surrogacy will still remain a stickler: the social contract has been conveniently neutralizing patriarchy in legalese, and the same may happen to surrogacy. Sarvanan writes,

In her book, The Social Contract, Carole Pateman critiques the social contract theory and asserts that patriarchal control prevails in the marriage contract, the prostitution contract, and the contract for surrogate motherhood. She claims surrogacy contracts are the means by which women’s reproductive capacities are dominated and patriarchy is upheld. In Feminist Morality, Virginia Held regards the social contract theory as inadequate in representing children and women and in capturing the meaningful moral relationship between people.

Surrogates may read, understand and sign a surrogacy contract, but the contract would not signify the same amount of shame and guilt as for a person to read, understand and sign a contract for trading in his or her kidney. Cultural baggage is attached to surrogacy in the South Asian context. While some think that being a surrogate mother is fine for money in an otherwise a conservative society, with patriarchy in mind, I still found it hard to believe that women can ever pursue this chance in the open: understandably many work in collaboration with their husbands and immediate family to keep this as a secret. Another gender question: how does surrogacy threaten the social understanding and definition of motherhood? The surrogate mothers in the documentary feel emotion attachment to the babies, even though they are not genetically related. (In contrast, the popular trope regarding men is that they expect their offspring to be genetically “theirs.”) Women around the world face critiques that they are selling their wombs, which should somehow be regarded as a sanctified zone. Motherhood seems to mean legal ownership of the child, but in the case of surrogacy without the same amount of effort, which is so often labeled as “sacrifice.” The intended parent also may not experience the typical birth defining motherhood but still expects to enjoy all the experiences with “her” child thereafter.

Many surrogates rationalize their decision by citing their economic needs and contribution to family income, as seen in the documentary. This attitude poses is a stark contrast with another group of women who also earn money for their family in Pakistan. Zehran Yasmin Zaidi’s Chaddors and Pink Collars in Pakistan: Gender, Work, and the Global Economy shows in one chapter that oftentimes women can

participate in non-traditional employment outside of home, but requires women to observe cultural norms in non-work related matters. The dynamics of this process can be understood by examining how class and gender operate in Pakistan. Many women workers who were interviewed by the author came from working-class backgrounds, yet made contradictory claims about working out of choice rather than economic necessity.
But in both cases, women earn approval through bringing financial gains to the family despite the acts are against previous convention.

Unfortunately there was not a lot of anthropological data on the gender questions: who makes the decision to become surrogates in the family and what are the different opinions of the informed participants (e.g. Fathers, mothers, in-laws)? How does gender relations impact the surrogates’ economic “rationality?” The intentions are very elusive, compounded with layers of ethics and gender politics. I speculate that it is possible that both sides who are participating in this transaction would not even approve of this kind of deal when asked in a polling exercise.