India's Auto-Immune Disorder: The Gap Between Law and Rule of Law

Nurtured by the majoritarian ethic, for every internal enemy located there are thousands of vigilantes willing to combat and, for every enemy subjugated, there are millions of spectators willing to cheer or look the other way.

India today is like a person diagnosed with auto-immune disorder. In such a condition, the immune system mistakenly regards parts of its own body as “foreign” and proceeds to attack the part so identified. The auto-immune disorder of the Indian body politic has had a similar response to parts of India imagined and marked as foreign or enemy.

The condition has another pathology. One disorder usually leads to another – from the joints to the glands to the skin; more parts are marked “foreign” and, quite predictably, more become stricken with afflictions that have no clear nomenclature and no clear prognosis. We may call these disorders authoritarian-democracy, majoritarian-fascism, fasco-liberaism and so on. But even the most astute political theorist knows that two terms stitched together by hyphens are yesteryear oxymoronic foes, conceptually insufficient to grasp the nature of the disorder.

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But easier to identify are the so-regarded “foreign” body parts, simply because of the intensity of their pain and the force of contempt that inflicts this pain. These could be, as Mukul Kesavan identified in a searing piece, “the disloyal Kashmiri ingrate, the insidious Bengali infiltrator, the beef-eating cattle thief, the preying Romeo, the ghettos crowded with burqas and beards,” or they could be the traitorous ‘urban naxal’, the liberal anti-national or the westernised secularist.

Each of these ‘foreign-bodies”, separately and together, are identified as enemies of a nation, to be subjugated, sacrificed and made socially disposable.

Crime and punishment

What then could be some of the ways in which these ‘foreign bodies’ are to be disciplined and punished? These technologies of control (the antibodies) can be classified under three heads – legal-constitutional, legal-exceptional, and extra-legal. Their efficacious deployment rests on a multiple user-base and concurrent deployment. Nurtured by the majoritarian ethic, for every internal enemy located there are thousands of vigilantes willing to combat and, for every enemy subjugated, there are millions of spectators willing to cheer or look the other way.

Let’s start with the last. Extra-legal modes are those that operate in the obscure space between legality and illegality. Not expressly sanctioned by law or its agencies, the shadowy arm of law insidiously backs and assists. Exonerating Pehlu Khan’s killers, sending the meat, not dead Akhlaq’s body for forensic analysis, not registering FIRs, charge-sheeting victims of lynchings are some ways in which law forsakes its unfavoured citizens. 

As cow-vigilante mobs, ghar wapsi gangs, anti-Romeo squads, the many rakshaks, the senas, the vahinis, and sangathans set out to eliminate foreign parts of our civilisational body, sometimes through omission, at times through commission, law shapes itself into a pliable majoritarian tool of selective deployment.

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Political power is an implacable monster. It cannot leave the body of law itself impervious to political exigencies and therefore legislates the second mode, the legal-exceptional. It creates, as Giorgio Agamben terms, “states of exceptions”, which enables law to  “legally” strip a person of legal protections that are available to other citizens of the nation.

Exceptional anti-terror laws like the UAPA (Unlawful Activities Prevention Act), Public Safety Act (PSA), National Security Act (NSA), AFSPA, are increasingly used as instruments of state-terror to incarcerate political leaders, journalists, civil rights activists and human rights lawyers and so on.

With the recent amendment to the UAPA, the assurance that law is an instrument that protects becomes even more fragile. You as an individual have to prove that you are not a terrorist. Consider this for a moment. You have to prove that which you are not. Quite apart from its ability to punish, this amendment arms the state with a chillingly efficient tool of discipline, obedience and obeisance.

War and peace

It has been more than a year since nine human rights activists have been arrested under the very repressive UAPA with no recourse to chargesheet, no recourse to commonly available remedies like bail, basically with no recourse to law itself. Those who defended the constitutional rights of the most marginalised and most impoverished have themselves been stripped of their rights and protection under law.

What could be a more potent demonstration of power and hostility towards those designated internal enemies? If the beef-eating cattle thief was subjugated to the power of death, these educated lawyers and civil rights activists face, what Orlando Patterson terms, the power of social death, where their social existence is represented in the image of an internal enemy, a life form that is a threat to the larger body in which it resides.

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The third category of “foreign body-part” – the political opposition, the Bangladeshi infiltrator or even the whole of Kashmir – requires a more robust sanction of law through its penal and constitutional codes. While the first two modes (the extra-legal and the legal-exceptional) had a dodgy relationship with either the text or spirit of law, this foreign-body requires the most legitimate and legitimising modus operandi.

The instrument of choice could be the vigilance of statutory or constitutional bodies like CBI, ED, Income Tax Department or the CAG.  It could be religious profiling and purging of migrants through the National Register for Citizens (NRC), or their selective induction through the Citizenship amendment Bill, 2019. Or it could be the supremely cunning constitutional amendments that disabled Article 370 and turned Jammu and Kashmir into a union territory.

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For every enemy imagined, identified and located – the poor cattle trader, the defenders of tribal lands and Dalit rights, the migrant, the refugee, the political opposition, the Kashmiri – there is a “legal” recourse that ranges from deployment, to manipulation to exceptionalism of law. But despite the ubiquity of law in each of these recourses, what is sacrificed, ironically, is the rule of law itself – the very immune system that is meant to strengthen and protect us.

This severance of rule of law from the conduct of politics is perhaps one of the greatest sacrifices our democracy has wilfully made. What began as an auto-immune disorder that afflicted the extremities once upon a time has come to torment its core.

Don’t let the optics of bodily integrity for a moment detract from what is being depleted inside. You may not be able to see it. But that doesn’t mean that you ignore the signs.

Rajshree Chandra is associate professor, Janki Devi Memorial College, University of Delhi.