Michel Foucault (2003) inverted Clausewitz’s famous formulation of war and politics, pointing out that politics is war by other means. This inversion undermines the liberal imaginary that war and violence, on the one side, and politics and peace, on the other, are separate and distinct domains. Foucault’s wager is that war infects procedural politics, with the specter of overt violence haunting political processes. In recognizing and engaging with the inextricable agonism of the political, and in not nursing an amnesiac relation to it, Foucault suggests that an ethical practice proper (and adequate) to politics can be formulated.

Achille Mbembe (2006), drawing inspiration from this inversion, describes three cultural configurations that frame politics in the postcolonies. These configurations, while analytically distinct, also overlap and blur into each other; while one dominates at a certain point in time, the other two lead subterranean lives and have the potential to surface and undermine the dominant one. The first of these appears where politics and political processes manage to domesticate and sublimate violence through the institutionalization of processes of social, political, and economic exchange, as the continual iteration of political language games, symbols, and practices of brokerage and distribution. The chief language game is that of elections, which partake of magic and religion insofar as they allow for the expression of grievances and reasonably peaceful regime shifts—thereby consecrating the polity and its rule of law, however it is subsumed, translated, or vernacularized. This polity is not devoid of express violence, but has managed to marginalize it through the creation and sustenance of a pluralist public culture with all of its cleavages, alliances, and contestations.

Mbembe’s second politico-cultural configuration entails the dominance of a particular language, ideology, or cultural form and the consequent dissipation of pluralism. When one group or community is dominant, the task for minorities and marginalized is no longer to contest or solicit dialogue over the foundations of the polity, as was the case in the earlier configuration. Ensconsed in political insecurity, their labor amounts to lingering in silence, not saying things that will jeopardize their lives. Securing their lives physically, economically, and politically becomes the be-all and end-all of living. The state, notwithstanding its claims of neutrality, backs the majoritarian imagination.

In the third of these forms, the Other—not only minorities and the marginalized, but any community without the capacity to defend itself—become dispensable. If Clausewitz thought that war is politics by other means and Foucault wagered the converse, in this form politics is warring, or war the only politics. Massacres, genocides, rapes, and riots are the idioms of this configuration, which Mbembe appropriately calls the necropolitical.

The universalization of the necropolitical in many African states inaugurates what might be seen as psychotic conditions, in which the subject is submitted entirely to the impossible, whimsical jouissance of the Other. If the work of law is to defend subjects against the jouissance of the Other, it fails here. The Other claustrophobically hovers, at once too menacingly and at too intimate a distance. Law, instead of being the envelope that secures the subject, becomes the plaything of the jouissance of the Other.

Conditions in India have, I argue, largely conformed to the first of Mbembe’s three configurations, despite the overlapping presence of the other two formations. Nehruvian constitutionalism, electoral governmentality, and welfare practices have managed social relations, disbursed resources and pleasures, and instituted a thriving and agonistic public culture. Yet the rule of law and statist sovereignty was always structured by tensions between their claims of transcendent presence and their often uneven social articulations (Hansen 2001; Hansen and Stepputat 2006).

Ranajit Guha (1997) called the colonial state a regime of dominance without hegemony. Sovereignty in the colonial state rested on coercion and violence more than the social acceptance of its political idioms and practices; a mutual opacity thus constituted the relations between the colonizer and the colonized. As vexed as that Manichean formulation might be, what is irrefutable is the radical mutation of state–society relations during the intervening period. Over the course of the six decades following independence, statist language, rituals, and procedures have pervasively penetrated the Indian social, so much so that Sudipta Kaviraj (2010) deems their social presence enchanted and even ghostly (see also Chatterjee 2004). Still, this omnipresence has not guaranteed a social fidelity to the rule of law.

In other words, I am suggesting that the rule of law regulates sociality not through the extraction of compliance. The sheer fact of its circulation, however, compels a response from a citizenry that is by now intimately versed in its languages. This response is transactional in nature, involving negotiations and the like. One of the paramount modes of navigation of the rule of law and statist governmentality is that of proceduralist mimicry. Thus Matthew Hull (2003), in a remarkable study of Pakistani bureaucracy, recalls the ingenious circumvention of formal procedures by Asif Zardari, the infamous spouse of Benazir Bhutto: his files traversed the breadth of the bureaucratic apparatus with a sticky note attached, containing detailed instructions for relevant officials. This note was removed before final submission, erasing the trace of the authorial signature that kept these files in motion. Instances like this can be easily multiplied, and what they point to are the everyday modes of navigating quotidian relations with the state. Arguably, then, the practices and languages of the rule of law have become pervasive and efficacious, but not in the manner they ostensibly intend to. Strict compliance constitutes only one possible response; others consist in transgression, hustling, camouflage, counterfeit, fakery, waiting, ambushing, ignorance, irony, humor, and so on (see Vishnupad, forthcoming).

Furthermore, infractions against the rule of law trigger and reinvigorate a plethora of countermeasures that, in turn, seek to reinvest collective faith in it; the rule of law, as Jean Comaroff and John Comaroff (2006) write, is resurrected and fetishized yet again. This inexorable cycle of law’s circumvention and its fetishistic resurrection, to the point of an almost cathectic restoration, indexes a repetition compulsion that directs our attention to an irresolvable impasse undergirding law, sociality, and politics in India. But what is the nature of this impasse? What is the economy of this intimate circulation of law as it constitutes sociality?

Sigmund Freud (1989), among others, argued that sociality requires both the sacrifice of enjoyment (or jouissance) and violence as its essential conditions. In this light, the rule of law determines the modalities by which the regime of sacrifice is instituted. Notably, this sacrifice is never absolute, and is paradoxically routed through law itself. The subjective position of the pervert in relation to this regime of law and sacrifice is significant, consists in what Lacanian scholars have termed disavowal (see Miller 1996; Dor 2001). The pervert both strives to institute the law and yet continually circumvents it with a sense of enjoyment. In fact, the pervert requires a continual resurrection of law so as to enjoy. Law, here, becomes an instrument (and an essential one) for the pervert to organize his regime of enjoyment. Stated differently, the pervert does not sacrifice enjoyment; he annuls the regime of sacrifice through his instrumental use of law. Lacanian scholars have called the generalization of this condition through the social body a case of generalized perversion (Boucher 2006; Zizek 2006, 2008). The relations of society to law in India, I suggest, exhibit all the signs of this form of generalized perversion.

To return, then, to Mbembe’s three politico-cultural configurations. In the Indian republic’s first two decades, the Nehruvian polity inherited structures from colonial times, notwithstanding all of the alterations that came with political independence. From the late 1960s to the early 1990s, these structures were reworked even as electoral democracy deepened and the state apparatus was vernacularized. Constitutional frameworks and lived practices, while never fully coincident, allowed conflicts to be registered, elaborated, and sorted out. But the Hindutva movement during the 1990s and, subsequently, the return of one-party rule under the Bharatiya Janata Party has inaugurated a shift to Mbembe’s second form. Vigilantes organized around cow protection, as well as attacks on Muslims, dalits, and Christians as part of anticonversion campaigns, all point to this change in the polity. What one says or hauls in one’s lorries or eats at home becomes the condition of one’s survival. The discourse of majoritarian nationalism thus promises to continue the silencing of internal Others (and wars with external Others; read Muslim Pakistan). Under these conditions, however, statist sovereignty and the rule of law remain subject to the operations of generalized perversion.