ARTICLES

1. Crisis, justice, and managing the appetite for risk

Francine Rochford
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The phrase ‘never let a good crisis go to waste’ is often (mis)attributed to Winston Churchill. It expresses the common perception that the sentiments evoked by crisis can be used to manipulate power relations and strategically reposition influence. Although crises can arise from tangible, objectively catastrophic external events, governmental responses to crises are accompanied by processes of framing—construction, interpretation, and communication to the community subject to governance. The framing and management of crises can contribute to the expansion of regulatory scope. Moreover, the process of scaffolding regulatory legitimacy during times of crisis involves deployment and amplification of techniques of governance such as the use of data and expert knowledge, risk management, responsibilisation, and dispersal (or non-dispersal) of funds. In political systems that have adopted neoliberalist forms, these techniques of governance cascade from state-administered functions, such as policing, health, armed forces, and emergency services, to local communities, employers, and consumers. In this way we find responsibility devolved and detached from political decision-making and, more importantly, from democratic legitimacy. Dispersed governing mechanisms steer individual practices towards certain ends so that, rather than suffering the removal of the capacity for decision-making, individuals willingly abandon it. This article explores the intersection between regulation and justice and the methods of framing crises to legitimise governance actions where those actions constrain human rights and justice claims. Analysing Australian state and federal governmental and non-governmental actions during the COVID pandemic, it will use a case study method to assert that performative compliance activity is amongst the suite of sophisticated techniques to legitimise decisions made in circumstances of crisis, even when those decisions cross traditional normative boundaries, implicitly diminishing claims to legitimacy based on democratic discourse. This article will focus on two events: the decision to ‘lock down’ community housing towers, and the decision to arrest and charge with incitement a pregnant woman for starting a Facebook post to encourage breach of lockdown restrictions. Both decisions prompted expressions of concern by civil rights groups and lawyers that human rights had been breached.

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2. COVID, crisis, and unordinary order: A critical analysis of Australia’s JobKeeper wage subsidy scheme as an exceptional measure

Vincent Goding
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Carl Schmitt’s famous articulation of the relation between sovereignty and the exception emphasises not simply the basis for a suspension of the law in a state of emergency, but the role of the sovereign in deciding upon the existence of the ‘normal situation’, the ‘everyday frame of life’ which the law requires to function. Our pandemic times have included extreme biopolitical measures deployed to manage the health crisis, but also unprecedented political responses to regularise or stabilise the economic order. One example is Australia’s historic JobKeeper wage subsidy scheme. As law, it was given life by an executive power predicated on nationhood and enlivened by crisis. As policy, it was intended to help businesses retain workers through targeted, proportionate support. In reality, it also provided significant protections and even windfalls to corporations and their investors, leading to critiques of the scheme as corporate welfare. However, rather than highlighting deficiencies of the JobKeeper programme, these outcomes underscore its ultimate function. This article analyses the relationship between norm, exception, and order in the context of Australia’s flagship economic-policy response to the pandemic. First, by analysing the mutually constitutive relationship between norm and exception, employing the theories of Carl Schmitt and Giorgio Agamben. Second, by critically examining the legislative basis for JobKeeper, its political narrative and practical outcomes. Third, by demonstrating that the scheme, though an extraordinary departure from policy, can be understood as fundamentally a different and exceptional method to secure and reproduce our neoliberal corporate order in a state of exception.

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3. Judicial authority through the experiences of crisis

Aiste Janusiene
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This article is concerned with law’s experiences and making sense of crisis. When we talk about law’s response to crisis, we refer to law not as an abstract set of rules but as an embodied and animated assemblage of relations and practices. This way, law needs to make sense of any crisis to respond to it. The article draws on cultural legal studies to explore the constitution of judicial authority in the context of a democracy in flux. The article relies on fieldwork data collected in the interviews conducted by the author with Lithuanian judges in 2019. Highest in more than two decades, public trust in the judiciary in 2018 indicated a remarkable achievement for Lithuania, a country whose judicial system had been in a state of flux since the end of the Soviet era. However, after an unprecedented and highly mediated judicial corruption scandal in 2019, the rates of public trust plummeted, uncovering complex dynamics between the image of courts, mass media, and the public. Against this backdrop, the article explores how judges make sense of crisis that develops on the intersections of provocative reality judging and formal judicial institutions. It shows how judicial authority is constituted in the conditions of crisis on the tension between law and culture. Emerging from a crisis of authority is the changing face of judging. A post-colonial vantage point and theatrical jurisprudence are used to respond to a development of a desire of power under a mask of rationality, objectivity, and universality. The article concludes by contemplating how this authority shapes our lifeworlds.

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4. Gender, disasters and climate: Case of internal displacement in Assam, India

Sneha Krishnan
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Social vulnerabilities are exacerbated as a result of human mobilities in the face of climate-related disasters. Framing these mobilities as a response to disasters masks the underlying systemic issues but helps to explore and understand the connections between climate change, disasters, and displacement, and particularly helps to identify which internal displacement patterns emerge as either adaptive or maladaptive strategies.
Using a case study approach, this article juxtaposes Assam’s history with floods, erosion, and extreme rainfall since 2012–2013 with people’s mobility as an emerging form of adaptive capacity. It contextualises key concepts of gender justice, using them to understand gendered recovery processes following disasters. This article advances the concepts of justice and migration by looking at the role and impact various patterns of mobilities have on vulnerable groups, particularly women.
While there is an increasing body of research examining the climate change–migration nexus, what is needed is a focus on understanding internal displacement using an environmental and gender justice lens. This approach must include debate and further research on internal displacement, and strengthening policy approaches to make them both climate resilient and migrant inclusive.

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5. Revisiting Kartar Singh v State of Punjab: Procedural exceptions and fair trial in anti-terror laws

Radhika Chitkara
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India’s lineage of anti-terror laws—TADA, POTA, and UAPA—create wide exceptions to cardinal principles of fair trial recognised under common law, statute, and the Constitution. These were enacted as exceptional legislations to deal with national security concerns, thus justifying enhanced legal powers of coercion over investigation and prosecution. The source of these extraordinary powers is not the Emergency Provisions under Part XVIII of the Constitution, or preventive detention under Article 22, but reasonable restrictions under Articles 19(2) and (4). Without constitutional and legislative safeguards, UAPA permanently entrenches coercive State power. Unless expressly repealed by Parliament or struck down by judicial review, non-derogable Article 21 guarantees and democratic opposition remain at present the best defence of liberty. As established constitutional and statutory principles of fair trial stand abrogated in anti-terror laws, how may judges protect due process under special procedures? How may the accused effectively defend their liberty? And as members of the democratic republic, how may we evaluate whether the criminal justice system is fairly administering justice in practice? To answer these questions, this article turns to Kartar Singh v State of Punjab, one of the first Supreme Court decisions to consider the constitutionality of procedural exceptions under TADA. The article proposes an alternative orientation of the principles of fair trial, towards a theory that is rooted in separation of powers and frameworks of checks and balances within procedural law. The first section describes the right to fair trial, its relationship with ordinary procedures, and derogation under special procedures. The second section identifies a theory of fair trial through an analysis of Ramaswamy J’s dissent under Kartar Singh. The final section follows the ramifications of this theory for contemporary bail jurisprudence under UAPA.

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6. Autocratic legalism in India: A roundtable

Deepa Das Acevedo

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At a moment when democracy seems to be experiencing an unprecedented level of crisis worldwide, this roundtable focuses on one country, India, to ask what we can learn from its ongoing challenges. The participants take as their starting point Scheppele’s idea of ‘autocratic legalism’, in which constitutional democracies are ‘hijacked by … legally clever autocrats’ who turn democratic institutions and values against themselves. Does autocratic legalism capture developments in India, particularly since 2014? Does the concept help identify weaknesses or untapped potential in Indian democracy? Or does the crisis of India’s democracy reflect different patterns from the autocratic legalism emerging in other parts of the world? Participants consider these and other questions during a conversation that bridges disciplines, geography, and the academy–legal profession divide.

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7. The art of law (and the law of art) is perpetual crisis

Gavin Keeney, Ishita Jain & Harsh Bhavsar
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In this performance-based work, which essentially concerns the fable of ‘Khi + Ordo’, we obliquely—through visual-textual storytelling—focus on what we call ‘the agency of the artist-scholar’, deconstructing, inter alia, many of the rules and regulations associated with the art-academic industrial complex—i.e., the institutional dictates to produce commodifiable works, the enforced metrics associated with authorised forms of research and publication, and the often-inelegant and mostly unnecessary dance that the artist-scholar performs with ‘all of that’. The photo-essay is developed from the archive of the Out of India Collective (OOI), but in association with the Metropolitan Transmedia Authority (MTA), its successor collective. It draws upon documents associated with OOI experiments in transmedia undertaken across multiple submissions for residencies, exhibitions, and publications in both academia and the art world in the years 2017–2019, even as it focuses upon the fable of ‘Khi + Ordo’. ‘Ordo’ is a synonym (or metaphor) for totalitarian states and regimes—‘regimes’ being, in this case, those that rule art + law. ‘Law’ here infers, through its negation, the appearance of a higher law, one that is entered upon when one resists assimilation to the rules and regulations associated with police states—incipient or otherwise. We call that other law ‘works-based agency’, and the artist-scholar is beholden to it once s/he departs company with all such quotidian systems of abject hegemony. One crisis leads to another, so to speak, on multiple levels and all at once.

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8. Queer love and litigation in India: Sreeja S. v The Commissioner of Police, Thiruvananthapuram and Others, Writ Petition (Criminal) 372 of 2018, Kerala HC

Ajita Banerjie
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India, the illegality and alleged criminality of queer relationships is often operationalised through a stabilised legal strategy adopted by the natal family to orchestrate the return of their daughter who has eloped from her natal home with her partner. Since queer desire is seen as an attack on the heteropatriarchal foundation of Indian society, one that can destabilise the family unit, it is met with the strictest punishment, often in the form of criminal sanctions. The conflict emanates from the contradiction between constitutionally guaranteed rights and certain penal clauses routinely used by the police, at the family’s behest, to regain control of the ‘errant’ daughters who have jeopardised the family’s izzat (honour) by transgressing the boundaries of gender, sexuality, caste, or religion. In this case comment, I will analyse how the Kerala High Court, upon hearing a habeas corpus petition, upheld the rights of a queer woman who was being illegally confined by her natal family. I will analyse the ways in which the criminal justice system in India is (mis)used and manipulated by natal families of queer women, in confluence with the police, to enforce and maintain heteropatriarchy and gender role conformity. Further, I will examine the techniques by which politics of honour, morality, and heteropatriarchy are folded into legal processes. Lastly, I will reflect on the ways in which queer individuals have been able to find autonomy, dignity, and love within the law, despite criminal law’s historical role in the unjust regulation of queer lives.[/expand]

9. Amitav Ghosh: The Nutmeg’s Curse: Parables for a Planet in Crisis
Surabhi Singh
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10. Jacqueline Rose:  Mothers: An Essay on Love and Cruelty

Kamya Vishwanath

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11. ‘Mutual aid is present in every crisis’: An Interview with Dean Spade

Oishik Sircar
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