On Law, Violence, and Jouissance in India
From the Series: Reading Achille Mbembe in Indian Majoritarian Politics
From the Series: Reading Achille Mbembe in Indian Majoritarian Politics
In his brief essay, Vishnupad invites us to reflect on the relationship between law, subjectivity, and political authority in India through Achille Mbembe’s distinction between three modalities of political authority: (1) institutionalized transaction, including electoral processes, (2) ethno-majoritarian dominance, and (3) pure violent domination, or necropolitics. Vishnupad suggests that India is gradually sliding toward the second configuration, especially since the Bharatiya Janata Party’s (BJP) rise to political dominance in 2014. He suggests that the underlying cause of this shift is the paradoxical position of the law and the state in India: at one and the same time omnipresent and weak, constantly subverted, evaded, and challenged and yet constantly called upon to intervene, regulate, and punish. Pace Lacan, Vishnupad calls this combination a “generalized perversion.”
Reformulating this position slightly, I would argue that the colonial condition Ranajit Guha (1997) described as “domination without hegemony” has given way to a hegemony without domination: seven decades after independence, the fact of the Indian nation-state and the legitimacy of electoral democracy are hegemonic frames in the political imagination of most Indians. Yet this frame is not an effective regulator of state practices, nor of those of ordinary Indians. Most critiques and protests in India revolve around the inability of the actual state (sarkar) to deliver on the promise of inclusion within a larger hegemonic idea of a sovereign national polity (raj or rasht; see Hansen, forthcoming a). Two of the main reasons for this state of affairs are that the rule of law was never central to this hegemonic formation, and that legal institutions never enjoyed substantial autonomy.
Let me respond to Vishnupad’s intervention by making three claims:
Firstly, the rule of law in India was never a liberal regime but was always circumscribed and structured by a hierarchical and violent social order.
It is not clear that the Indian state and judiciary embodies a liberal regime. Colonial legislation had multiple rationales: securing the colonial state, maintaining an often tenuous public order, creating and protecting private property, and reforming and codifying social practices, to mention the most prominent. Some of those legal forms had liberal elements and intentions, just as prominent public figures in the nineteenth and early twentieth centuries espoused a liberal agenda (Bayly 2011). In practice, however, the force of law was always applied in a deeply unequal manner and the poorer and lower-caste majority of the population were generally exposed to the despotic and harsher dimensions of governance (Singha 1998). Contemporary critiques of corruption and the decay of the rule of law in India often tacitly assume that the early years of the independent republic saw a genuine respect for the rule of law, before the generalized perversion set in. However, this was the era of elite democracy, in which democratic institutions and liberal principles of lawfulness were mediated by the paternalist power and authority of those with property, status, and land. It is quite clear that outside the middle class and elite milieus, the principles of liberal-democratic rule of law were only adhered to insofar as they served to consolidate the power of the higher-caste propertied classes. The chief currency of this vote-bank democracy was the strength of electoral numbers, and it was eventually demolished by that very same logic.
By the 1970s the Indian National Congress had all but abandoned its commitment to liberal principles in favor of an authoritarian, populist reform agenda that reconfigured the political landscape. Its main elements were the rhetorical embrace of vaguely socialist Third Worldism, a deep commitment to state sovereignty, harassment of opponents, violent suppression of insurgencies, and the systematic building of a large security state. Out of this antiliberal and paranoid atmosphere of confrontational politics arose two new major sociopolitical forces, neither of them committed to the rule of law: (1) movements of the middle- and lower-caste communities, whose rejoinder to upper-caste domination was a muscular assertion of sheer numbers and demands for addressing historical injustices by increased numerical representation in public institutions; and (2) Hindu nationalism, which sought to mobilize Hindus as a permanent majority and Hindu culture as the historically transcendent truth and bedrock of Indian society. Both of these forces expressed the almost Nietzschean political hyperrealism that has now become common sense in India: there is no truth outside of our power; all facts are partial; the common good is a fantasy; all law serves someone’s interest. In this climate, circumventing the rule of law or using connections to evade justice and taxation are but benign versions of a much larger set of illiberal practices.
Apart from the activist community that includes feminists and LGBTQ groups, the only broad communities in India today that consistently appeal to the constitution and the rule of law and actively criticize policing and legal practices for their violent and discriminatory character are the recognizable minorities: Dalits, tribals, Muslims, the northeasterners. These are today the representatives of an Indian version of what Habermas once called “constitutional patriotism.”
Secondly, there is no single politico-legal order. The Indian state has always worked through several parallel regulatory regimes.
Decades of scholarly work have documented how liberal political orders in the Western Hemisphere were enabled by simultaneous despotic rule in the colonies. Likewise, colonial India was governed through several parallel regimes and configurations of sovereignty. Gradual incorporation of elite segments into representative institutions went hand in hand with violent police practices in popular neighborhoods (Chandavarkar 1998), indirect rule of princely states (Beverley 2015), and paternalistic inclusion of tribal groups in special zones (Baruah 2007). The formal construction of a unitary Indian nation-state changed none of this substantively. As electoral democracy deepened and brought new social groups into play across the country, the security state has waged violent wars and put large populations under permanent emergency laws in the northeast, in central India, and in Kashmir. Most of the political forces in the country, including the mainstream left, continue to support this policy of large-scale human rights violation in the name of national sovereignty. Similarly, despite the Indian police and security forces having some of the worst records of systematic brutality, deaths of suspect in custody, disappearances, and routine violence, there is no major debate about police reform or the daily human-rights violations taking place across the country. The hand wringing about the endangered independence of the judiciary rarely, if ever, addresses the alarming state of the lower courts or of public prosecution across the country.
Thirdly, to sum up the two points above, the mightiest sociopolitical force in India today is neither the state nor the law, but deeply embedded vernacular ideas of popular sovereignty and democracy.
Let us not be blind to the fact that collective violence is not an illegitimate form of politics in India’s increasingly nonliberal democracy. Performing anger, destroying public property, ransacking offices of opponents and media outlets, beating up opponents: these are all standard techniques of doing popular politics in India, which are unlawful but rarely prosecuted or even treated as crimes. It was Bal Thackeray and his Shiv Sena supporters that pioneered this by turning mob violence and threats of violence into an effective language of daily politics in Mumbai. The police stood by, careful not to interfere with the majority community while routinely countering both Muslim and dalit protesters with lethal force. Today, that is a common pattern in many parts of India and not confined to majoritarian forces (Hansen, forthcoming b). The ferocity of the threats and the size of the crowd have today become indices of the depth and authenticity of a grievance or felt offense. Only a spontaneously angry crowd gets taken seriously, especially if it is Hindu. Muslim crowds in Kashmir and elsewhere are routinely dismissed as staged or instigated, presumably by dark, hidden forces. The management and staging of spontaneous popular anger is one of the key political techniques in contemporary India and no other political force has mastered this better than the BJP and its allies. Constantly refreshing the historical archive of anti-Muslim and caste-based stereotypes, the BJP has weaponized civil society by making a faceless Hindu anger an ever present threat and possibility. In a perverse dialectical loop of history, the spontaneous anger and violence that colonial officers so feared and loathed as a deep form of Oriental irrationality is now back, carefully staged as a deep emotional truth and instrumentalized as the most legitimate expression of a Hindu majoritarian nation.
The tacit endorsement of violence may be the most disturbing effect of decades of friend/enemy politics in India. It is also the primary site of deep and enduring jouissance and political perversion. As I have alluded to in my previous work, ordinary politics in India is fueled by outrage and scandal—the corruption, the transgression, the bending of power, the cynicism—all things that outrage voters and motivate them to vote differently. But the shamelessness and routine violence of electoral politics is also a distorted mirror of people’s selves, a source of perverse entertainment and, indeed, furtive enjoyment. The surreptitious excitement during times of riots, the feeling that murderous mobs are exacting a form of magical justice beyond procedure and law, the middle-class voters’ fascination with the eros of naked power and audacity of political operatives: these are all richly and disturbingly documented by ethnographers of violence (see Ghassem-Fachandi 2012 for a particularly fine and disturbing study).
Perhaps another perversion can be found in the longstanding disconnect between critics of the ideological obfuscations of a general liberal and global order and the realities of Indian politics—from left to right—that, for decades, have undermined and delegitimized every liberal principle in the Indian polity. Are these critiques of a (neo)liberal order that never really existed preventing us from acknowledging that the creeping authoritarianism of the BJP reaps what was sowed and has been germinating for decades?
Baruah, Sanjib. 2007. Durable Disorder. Understanding the Politics of Northeast India. New York: Oxford University Press.
Bayly, C.J. 2011. Recovering Liberties: Indian Thought in the Age of Liberalism and Empire. New York: Cambridge University Press.
Beverley, Eric. 2015. Hyderabad, British India, and the World: Muslim Networks and Minor Sovereignty, c. 1850–1950. New York: Cambridge University Press.
Chandavarkar, R. 1998. Imperial Power and Popular Politics: Class, Resistance, and the State in India, 1850–1950. New York: Cambridge University Press.
Ghassem-Fachandi, Parvis. 2012. Pogrom in Gujarat. Hindu Nationalism and Anti-Muslim Violence in India. Princeton, N.J.: Princeton University Press.
Guha, Ranajit. 1997. Dominance without Hegemony: History and Power in Colonial India. Cambridge, Mass.: Harvard University Press.
Hansen, Thomas Blom. Forthcoming a. ”The State as an Ethnographic Object.” Contributions to Indian Sociology, special fiftieth anniversary issue.
_____. Forthcoming b. “Whose Public, Whose Authority? Reflections on the Moral Force of Violence.” Modern Asian Studies.
Singha, Radhika. 1998. A Despotism of Law: Crime and Justice in Early Colonial India. New York: Oxford University Press.