Routledge Readings on Law and Social Justice

Dispossessions, Marginalities, Rights

Kalpana Kannabiran, Kalpana Kannabiran

• Publisher: Routledge India
• Year: 2022
• ISBN:
  9781000606294
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Routledge Readings on Law and Social Justice: Dispossessions, Marginalities, Rights presents some of the finest essays on social justice, rights and public policy. With a lucid new Introduction, it covers a vast range of issues and offers a compelling guide to understanding law and socio- legal studies in South Asia. The book covers critical themes such as the jurisprudence of rights, justice, dignity, with a focus on the regimes of patriarchy, labour and dispossession. The fourteen chapters in the volume, divided into three sections, examine contested sites of the constitution, courts, prisons, land and complex processes of migration, trafficking, digital technology regimes, geographical indications and their entanglements. This multidisciplinary volume foregrounds the politics and plural lives of/ in law by including perspectives from major authors who have contributed to the academic and/ or policy discourse of the subject.

This book will be useful to students, scholars, policymakers and practitioners interested in a nuanced understanding of law, especially those studying law, marginality and violence. It will serve as essential reading for those in law, socio- legal studies, legal history, South Asian studies, human rights, jurisprudence and constitutional studies, gender studies, history, politics, conflict and peace studies, sociology and social anthropology. It will also appeal to legal historians and practitioners of law, and those in public administration, development studies, environmental studies, migration studies, cultural studies, labour studies and economics.

PART I Colonialism, Insurgency, Exodus, and the Constitution

1 Law and Terror in the Age of Constitution-Making

Ranabir Samaddar

DOI: 10.4324/9781003299554-1

‘Law and Terror in the Age of Constitution-Making’ by Ranabir Samaddar (Gilles Tarabout and Ranabir Samaddar, eds, Conflict, Power, and the Landscape of Constitutionalism, Copyright © 2008, Routledge, Chapter 3). Reproduced by permission of Taylor & Francis Group.

In this exploration into the intimate relation between terror and law, I attempt, first to show that the relation between terror and law is not a simple question that merely relates violence to law, but is connected to the very process of constitution-making.

Second, I want to show this by arguing that the laws, which relate to terror, may or may not find a formal place in the constitution. However, this relation is essential to the working of the basic law, of the rule of law, and the working of the constitution.

Third, I want to show the key place that intelligence-gathering occupies in this relation, and this activity, which has almost no mention in any constitution the world over, is the fulcrum on which reasons of State stand.

Fourth, intelligence-gathering is principally based on the close monitoring of human movement—of the body and of various physical activities (such as when one is meeting somebody, writing, talking, seeing, reading, sleeping somewhere, etc). In this peculiarly physical form of politics, we witness the convergence of ‘body’ and ‘reasoning’, terror and constitution, violence and law.

Finally, what appears in the following description is specifically an account of the Indian experience, yet it may have larger significance in terms of retrieving the history of constitution-making. I have tried to capture this significance by means of the term—‘colonial constitutionalism’.

These themes may not be very clearly delineated in this exploration. In view of the current reality, these themes may even require a separate book that sheds light on their inter-relatedness. This essay is thus to be viewed as an exploratory attempt only.

Uncertain deaths are terrifying matters for the State, because above all they bring unsanctioned and unwarranted deaths. In this sense, while the form of the State has undergone change since the time it made its appearance in the world, the State in all its forms has experienced terror at the prospect of uncertain deaths; that is to say, deaths that bring or symbolise uncertainty. Extraordinary measures are taken, juridical serenity breaks down, and schizophrenia takes possession on such occasions. Most of the time we know this prospect as ‘terror’.

Terror implies uncertainty that has the capacity to scare, ‘terrorise’ (since it is an exception to law). It is evocative of violence, symbolic violence, extraordinary methods, unaccountability, uncertain prospects, different rules (if you understand them) of engagement and murder, and different methods. The act and the response, both are locked in death acts. Since terror denotes uncertainty, the State wants to make sure that the world of terror becomes law-bound, its grammar is subjected to cognition, so that terror is stripped of uncertainty; it is made certain in terms of definition, knowledge, action and retribution. This is how ‘the uncertain’ is legally defined, becomes subject to State’s reasons, to the world of knowledge, therefore to calculated decisions. Yet (surprisingly), the process of attempting to subject the essential uncertainty to the most extreme certainty—law—is coupled with a recognition of the limits of this enterprise; and therefore this process is accompanied with a frenzied invocation of the great arbitrary method of governing since time immemorial, namely, intelligence-gathering, that forms the bedrock of the trinity—State, terror, and law. Governing must be preceded by collection and analysis of information; law must protect not only ways of governing, it must also be backed by information. Indeed, the effectiveness of collecting information will determine how law can help the State to face, employ, and counter terror.

In speaking of the trinity of law, terror and the State, I am aware of the momentarily embarrassing irony of the question that this exploration should inevitably raise—how can law be so close to terror that one can never think of terror without its legal definition, without the legal mechanisms to cope with it—indeed, without terror becoming one of the most significant moments, or at least the next moment, in the development of law? The entwined and entangled story of law and terror presents to us the appearance and disappearance at will of what we can call the ‘the will to legislate’. In a situation where the State at one moment goes beyond law to combat or inflict terror, and then shrinks back at the next moment to the confines of law to take stock and legislate in order to forge an appropriate tool of terror and counter-terror, the will to legislate becomes contingent on elaborate phantom-building exercises. Defining terror, so that at some level terror becomes acceptable or normal in politics, becomes a juridical task of high priority—where normalisation refers both to bringing the phenomenon back to a ‘normal’ level, and the ‘normalising’ of the level achieved. The story of constitution-making in colonial times in India in the background of the twin development of terror and law is significant. It demonstrates the material conduct of the state in an age when terror appears as one of the most essential ingredients of politics, and physical control therefore becomes, once again, one of the chief instruments of ruling.

I

The colonial state in India was an extraordinarily war-like state. In some way, it had continued the record of the pre-colonial state in making war, conquest and large-scale murders the basis of state foundation, expansion and consolidation. But the colonial state raised the level of violence to an unprecedented level. Throughout the 19th century, the truly colonial century in India’s history—wars, plunders, conquests, battles of attrition, destruction, mutinies, revolts, massacres, famines, pestilence, a high death toll, and widespread depopulation marked the country’s state of affairs.

In this war-torn century, empire-making meant terror at every level and every step. It meant employing warriors and guns, the raising of mercenary armies, creating of anarchic modes and consequences of taxation, seizing land, forcibly colonising tracts with huge loss of lives, and imposing trade rules with devastating effect. A war-struck century meant a terror-struck century. It also meant that a huge land mass dotted with points of intense violence needed to be aggressively ruled by guns and regulation-making at a ferocious pace. The pacification that started with Regulation III of 1818 did not quite achieve the success that it claimed. With the onset of the new century, violence struck the political horizon of the country again. The early terrorists had learnt the lesson that a violent colonial state understands only the language of terror, or at least mass movements must be laced with appropriate measures of terror and violence. The size and the spread of violence and terror in all forms throughout the century—assassination, internment, deportation, exile, physical torture, random death penalty, increasing monopolisation of the means of violence by the colonial state, and murder (by which, murder by an individual became an occasion for the state to decide who was guilty and confer the death sentence), incarceration, artillery development, punitive taxation, collective punishment (as in the suppression of the Mutiny), race violence, forced labour employed by the army, and starving unto death of massive groups of people—meant that violence had a deep impact on the political forms of action in the society. In this uniquely ubiquitous violent society, terror was the birthmark of politics.

The sheer physical dimension of the only possible form of anticolonial political activity ensured that with the accumulation of martial strength and various means of terrorising, modern politics and terror would make simultaneous appearance in the colonial land. It also ensured the centrality of the body in such politics; in other words, the central significance of the sheer physicality of terrorist opposition to colonial rule. The early terrorists (the militant nationalists) were nurtured and brought up through innumerable organisations devoted to the inculcation of physical discipline—indeed, the two most well known militant anti-colonial organisations, ‘Anushilan’ and ‘Jugantar’, grew out of such efforts. The famous garden of Maniktola, one of the early terrorist organisers Upendranath Bandopadhyay tells us in his memoir, housed one such centre, where study of anti-colonial politics, culture of the body, meditation, physical discipline, abstinence from all temptations, cooking and cleaning oneself, all formed a sort of curriculum for militant nationalist pedagogy.¹ The name Maniktola bagan associated with the fame of the Maniktola Conspiracy Case became soon a household name in nationalist Bengal and a model for several such efforts though the centre was disbanded after a police raid in 1908. Such organisations called samities and akhras were founded in many districts; and ironically the more the leaders of the terrorist organisations claimed that ‘the people must be trained up spiritually to face dangers’² the more they stressed on the perfection of the body as the tool for anti-colonial resistance. To live a physical life of a soldier—to train the body to attack, to destroy the bodies of the occupiers, and then to die to accomplish the mission—was the journey of a rebel. Another terrorist leader, Bina Das, confessed years later that on hearing the massacre of the prisoners in Hijli prison she was seized with frenzy; she became insane; she knew that only death could relieve her from madness and give her peace: ‘I felt I would go mad if I could not find relief in death... My object was to die nobly fighting against the despotic system of government’.³ In the colonial wars, violence, and terror were a physical reality—bodies were being tormented, killed, forcefully put to labour, starved to death, dumped, or confined and controlled in torturous ways, and the physicality of the milieu marked the articulation of politics. Indeed, as we shall see, terror had no other purpose, than to make a political declaration; and politics had no other purpose, at least at the outset, than to strike terror in the enemy camp.

The literature on the Great Game has made us familiar with the colonial wars of conquest, annexation and suppression on the western side of India. What we immediately did not see was the connection between the Wahabi threat to colonial rule and the imperial policy of guarding the frontier. It became clear much later when Lord Mayo, the Viceroy, was assassinated in the Andaman Islands by the Wahabi prisoner Shere Ali in 1872. Indeed, the British punitive and pacification policy created something new in Indian reality: the modern jail system. As one historian describes, the colonial society became a penal society, where the social, political, and physical order was sought to conform to the normative order of colonialism.⁴ Jails became the breeding grounds of the early terrorists. State surveillance only increased hatred. The colonised was not just a subject, but a convict-subject bound by rules of segregation, punishment, impressive spectacles of power and benevolence, and obedience to personalised authority. Colonial penal policy grew directly out of the needs of conquest and pacification, and thus from the beginning, penalising had little to do with reform but with control. The procedural forms of punishment were elaborately laid out with formalisation with the Penal Code, Criminal Code, Evidence Act, and the jail system. All these were reinforced with a bizarre paradox, and which generated only hatred, namely that while justice theoretically might be individuated, punishment was to be, whenever required, collective. Where guilt was collective, the punishment to the individual was to be severe and ‘equal’, thus denoting the collective reality behind the crime and the punishment. This was as if the colonial rule, law, justice, order and magistracy, by the acts of hanging, lynching, caning, exiling, interning, torching, confiscating, impounding, were addressing not the subject of law, but the collective society behind that individual subject. Thus, no wonder, shame and hatred spread rapidly. Law was born out of conquest, and war ensured that only hatred could be the site of politics. Revenge, punishment and pacification were uppermost in the colonial conduct in the wake of the South Indian wars of conquest as well. After the defeats elsewhere in the later period of...