Law

Springing the Nation’s Memory from the Prison of Partition

In the nationalist movement, Gandhi alone posed the idea of justice on the Hindu-Muslim question, outside the language of law

Partition

In this classic photograph of Partition refugees by Margaret Bourke-White, a young boy contemplates the calamity that has befallen him and his family against the backdrop of tents erected to house displaced persons on the grounds of the Purana Qila in Delhi.

“Law is not justice.” – Jacques Derrida

Eminent people from various walks of life signed the mercy petition for Yakub Memon, since they weren’t convinced of his direct involvement in the 1993 Bombay blasts. There were also larger issues at stake, beginning with the need to abolish capital punishment. Bombay 1993 was preceded by the riots in the city in 1992, followed by the Gujarat pogrom in 2002. Justice for the victims of ‘93 could not be privileged over justice awaited by people who had suffered equally horrible crimes. People who had not just abetted communal violence in the other two events, but also wilfully taken part in them, have so far escaped the law.

The proliferation of anti-terror laws has both broadened and complicated legal distinctions regarding such crimes. Under subjective interpretations made by a judge or the political regime of the day, the distinction between ‘terror’ and ‘(communal) violence’ has allowed some perpetrators to enjoy more leniency than others. Legal experts and human rights activists have picked apart these laws for their extra-judicial biases and infringements upon people’s rights. More critically, there have been allegations of perpetrators getting a good or a bad deal based on their religious or caste identities. No wonder India has steadily gained the reputation for being a pro-majoritarian democracy.

Justice has to demonstrate a measure of equivalence. It will need a sincere amount of fairness in imparting justice to minorities. The state has to infuse trust in them. Justice also has the responsibility to heal, besides declaring punishments. The French philosopher, Jacques Derrida, spoke of the “responsibility of memory” in relation to justice. The nation’s memory still languishes in paranoia and suspicion since Partition. That memory itself needs healing.

The demolition of the Babri Masjid in December 1992 radicalised sections of Muslim youth who were to become foot soldiers of violent agendas. And then, the Bombay riots, masterminded by Hindu groups in the triumphant aftermath of the demolition, were followed by a Pakistan-backed, Muslim mafia-financed series of bombings in Bombay in the spring of 1993, and finally the most devastating anti-Muslim pogrom in Gujarat ten years later led to a fresh communalisation of relations, predominantly in urban areas.

It was first argued by Asghar Ali Engineer and Ashis Nandy among others that Hindu communalism is an urban phenomenon, connected to rapid industrialisation. The socio-economic competition for prosperity and supremacy in urban areas led to riots and Muslims faced the most terrible reverses. But beneath the socio-political phenomenon backed by a ruthless economic logic lies the older historical animosity leading back to Partition. The communal stories of Partition are, however, one-sided, manipulative narratives, aimed at provoking and reaffirming communal sentiments.

A Partition story

It will be instructive to recall in this regard the second Partition of Bengal. The maverick historian, Nirad C. Chaudhuri, in Thy Hand, Great Anarch! laid bare the technical detail of how Hindu legislators of the Bengal Legislative Assembly vote in favour of Bengal’s Partition in 1947:

“In the first joint voting, partition was rejected. But, by the second, the members from the Hindu majority areas accepted it. The number of legislators who decided the matter was farcical. Only seventy-nine members voted, and of them, fifty-eight voted for and twenty-one voted against partition. Thus the majority which brought it about was thirty-seven. All the Muslim members voted solidly against. I might repeat my lament that never was so much evil owing to so few… But as soon as the Bengalis realised the mistakes they had made, they completely repudiated their responsibility and begun to blame the British, the Congress, Gandhi and Nehru for their misfortunes.”

The story goes that Bengali Hindus, backed by both Congress and Hindu Mahasabha, led by eminent leaders including Dr. Shyama Prasad Mukherjee and Dr. Prafulla Chandra Roy, were in favour of dividing Bengal, prompted by the atmosphere of fear instigated by the Noakhali riots. The movement against the prospect of Bengal going over to Pakistan gained credence owing to the Muslim League’s dubious role in the riots. They felt it necessary to oppose the League’s campaign to secure the entire Bengal province. Communalisation led to fear-centric camps in the beleaguered community and allowed a free reign to the politics of fear and hatred. The option of Partition as a “solution” against people’s fears drove them to legitimise this fear and create a permanent breach in history. The utter failure of this move kept the Hindus from owning up responsibility later and led them to create fabrications that Chaudhuri castigates them for. The warning from this tragic story is how “solving” a breach of relations owing to engineered riots through a legally sanctioned communal-minded division renders the problem unsolvable for good.

This is the reason why looking for legally ordained “solutions” doesn’t seem to prepare any ground for a future reconcilement of relations. The idea of a “solution” is a euphemism for scientific fascism. In a twist of historical irony, Israel has come to realise regarding their aggressive paranoia against Palestinians, there can be no “solution” to fear. The solution of fear in history has often bred further and more fear, creating a new history of fear. If fear is the prime mover behind finding a solution, it is perhaps better to quell the fear before trying to find a solution for it, thus rendering a solution unnecessary.

Justice as hollow excess

Now to ask one of the central questions that concern us today: Has the law been able to meet the challenges posed by communal violence in the country since Partition? What if more punishments ensure a heightened inclination towards violence from a minority increasingly becoming pushed into the ghettoes of urban life? Will this legal noose of reason offer any respite to their woes and involve them more productively into the nation-state’s proclaimed chart of progress? Or is such a chart of progress not interested in the fate and better livelihood of the minorities in the first place?

Law seems to be the least useful of options for the Indian state in taming this violence. To return to Derrida’s point, he says law is not justice because law is calculable whereas justice is not – justice is incalculable. He however does not say law is unjust. Law is just and yet fails to render justice. The crucial difference between what may be just and yet not justice is the application of a rule – a ‘rule of law’ – that turns questions of justice into rules. The problem with rules and statutes is that it fixes a problem that cannot be fixed (by law). It is our political and ethical task to look for justice beyond the limited justness of law. The problem about dealing with historical enmities is that enemies aren’t natural. Enemies are political and politically constructed. Capital punishment, which works within the rhetoric of retributive justice, ends up being viewed by many as retributive violence by the state. The idea of justice remains a hollow excess, lying unrecognized inside the rejected papers containing pleas and petitions for clemency. Justice remains haunted by (the appeal to) mercy.

In the nationalist movement, Gandhi alone posed the idea of justice on the Hindu-Muslim question, outside the language of law. On January 27, 1940, Gandhi wrote in The Harijan: “But unity cannot be reached without justice between communities. Muslim or any other friendship cannot be bought with bribery. Bribery would itself mean cowardice, and therefore violence … I can disarm suspicion only by being generous.”

Taking risks to build trust

The politics of friendship demands generosity, something that is incalculable, and hence we enter the realm of a suspension of law, a time of endless deferral, a postponement of the question of power, till trust wins over the other. Gandhi showed in his role during the riots in Noakhali, trust can only be risked. He stepped into the middle of a highly charged, mistrustful atmosphere, facing oppositions and human excreta on his way, to calm people, hear their stories of woe and make the impossible demand of nonviolence. It is an exceptional circumstance in historical time where politics met ethics. Gandhi’s eventual failure in Noakhali that led to Bengal’s Partition, however, offers us a sober and possible alternative to communal politics.

The state cannot be expected to take risks because it thrives in the paranoia of law and order. But the state can at least be fair to its minorities. Isn’t it an ironic contradiction when the majority blames the atmosphere of instability and fear they themselves insurrect? The cost of fear, like that of justice, is incalculable. India needs a rectification of memory vis-à-vis Partition. For now, suspicion has replaced generosity the way it was during Partition. If there is no hope for justice in people’s lives, violence is within a hair’s breath. The silent crowd in Yakub Memon’s funeral might carry a shattering grievance in their hearts. Grievances become as justifiable or unjustifiable as decisions to punish through law. Such decisions of law cannot foster ties or mend its torn threads. Law, we know, will always fall short of justice. If law cannot give us justice, maybe efforts towards justice instead can offer us a law, divinely constituted through non-violence. Walter Benjamin had defined it as involving a sacrifice untainted by any form of guilt, one that abolishes law/power and restores justice. Gandhi had perhaps dreamt of something similar.