Negated Agency, Silenced Voice, and the Continued Negotiations in the Spaces Within

Childhood is believed to be a stage that requires protection, both in national and international policymaking realms. This essay looks at a few such intersections where lives of certain ‘categories’ of children have been gravely affected by laws meant for their protection and rehabilitation. Through detailed exploration of the making of the anti-child labour law and the category of railway children, this essay argues that repeatedly rehashed state plans of action to address child labour or children in railways situation are dysfunctional because they have abysmally failed to address it with the depth, diversity, and comprehensiveness required. This essay, touching upon case studies of child labour rescue raids conducted by the state in collaboration with NGOs and ethnographic accounts of children who have been rescued, and children who have defined their life and work in their own ways, attempts to explore how ‘childhood’ and ‘child agency’ have become a contested site between children, the existing state and NGO/legal activist/child rights groups discourses on child protection.

Violence, Desire, and Death Penalty

The essay investigates the often less explored relationship between desire and death penalty. It argues that no critique of the regimes of violence can be effective unless there is a re-moulding of our psychic imaginations and psychic investments within structures of violence. The question is whether we recognize these outpourings and outrages of violence in ourselves as well? In this context the effort of the essay is to demonstrate that how the institution of punishment and death penalty at its acme reflects as well as institutes violence leading to the formation of modern subjectivity. The essay borrows from the work of Friedrich Nietzsche and Jacques Derrida in order to fully grasp the meaning of abolition of death penalty. By mapping the traces of violent supplements in the institutions of law it argues that ‘abolition’ cannot just mean abolition of death penalty from statute books. The struggle for abolition must extend itself to abolition of the psychic traces of violence which are hidden in the veil of legality and unconscious of human subjectivity.

Hegemony without Dominance

This essay in reversing historian Ranajit Guha’s classic colonialist formulation ‘Dominance without Hegemony’ contrarily suggests that the postcolonial state in India has hegemony without dominance. Over six decades of statist presence, it argues, the Indian social has acquired intimate literacy over the language and idioms of rule of law and statist practices. This pervasive circulation and currency—or hegemonic presence—of the statist idioms however has implied neither its uninhibited dominance, nor an unreserved compliance to it. Rather, the chapter argues, the engagement with rule of law is transactional or instrumental, and takes the form of routine circumvention and erosion, inventive negotiations, leading ultimately to recurrent resurrections and fetishization of law. This transactional and non-transcending articulation of law ultimately indexes a symptomatology of repetition compulsion that pointedly gestures towards irresolvable aporia of sovereignty of the modern Indian state; this paper strives to capture this predicament of the Indian polity through the lacanian category of ‘generalised perversion’

The Real of Law

The essay takes a narrow angle view of the relationship between law and psychoanalysis, through the concept of the Real in Lacanian psychoanalysis; the Real as distinguished from ‘reality’; where (everyday) reality is a ‘phantasy construction’ (as against realist readings of reality) and Real is that which is either marking (i) the inassimilable or (ii) the foreclosed (Verwerfung); in this chapter, the inassimilable or the foreclosed of Law. Building on Freud’s reply (dated September 1932) to Einstein on ‘war’, the essay argues that while we have hitherto pitted ‘right’ against ‘might’, law against force and have assumed that it is the discourse of right(s) that counters the discourse of might, and it is law that counters the perpetration of force, Freud shows how the discourse of right(s) and Law is also premised on the foreclosure of a ‘fundamental signifier’: ‘community might’ and how subsequent transitions (that is, humanizations), in the discourse of right(s) and law keeps the signifier ‘community might’ crypted. Freud thus questions the assumed transformation from might to right; he shows it to be a transition from one kind of might (individual might) to another kind of might (community might). Partha Chatterjee’s The Prince and the Sannyasi (2011) helps us instantiate the question of the Real of Law: Real as inassimilable and as foreclosed; including the Discourse of Law as the (im)possible neurotic suture of eros and the Discourse of Law as a delusional veil over the secret support of the praxis of law: community might. The chapter shows how perhaps it was community might that had operated as ground, affect, and drive for an ‘unusual trial’ in Bengal in the 1930s and a judgment which looked to be a discourse of (not-so-sound) evidence, and (not-so-sound) interpretation around questions of identity and a ‘crucial event whose reconstruction formed the core of the [identity] dispute in court’.

Law, Violence, and Sexual Consent

This essay approaches the question of law and violence through the category of sexual consent, as it is articulated, interpreted and theorized in rape law in India. While the incorporation of an explicit definition of sexual consent has been seen as a feminist move in the criminal law in India, I argue that consent, being grounded in the liberal models of abstract individualism, is premised on an under-theorized conception of sexuality as well as ‘desire’. It is my claim that if law seeks to perform an ‘educative role’ and feminist legal scholarship and pedagogy is an attempt at an ‘uncoercive re-arrangement of desires’,i then we need to produce more nuanced accounts of the sexual and desiring subjects. The dominant frames of sex-negative and sex-positive feminisms may not offer us any insights into this and may inadvertently become complicit with legal violence in its foundational as well as interpretive moments. In this backdrop, I will argue that we need to push towards a more complex understanding of consent based on a more grounded theory of the subject at the centre of law and feminism which takes into account the complexities, contradictions, complicities, and violence that form human subjectivity, sexuality, and desire. The essay critically examines the definition of consent introduced in 2013 criminal law amendments and argues for a reading of sexual consent within a relational psychoanalytic framework that takes desire seriously.

Law at the Heart of Violence

This essay seeks to draw upon the updates of the Jagdalpur Legal Aid Group (JagLAG), a group of women lawyers working in the conflict-torn region of South Chhattisgarh representing adivasis of Bastar at various sites of law and documenting law in conflict. Using the JagLAG updates as archives of the life of law in Bastar, the chapter draws upon the life of law in a terrain of violence, wherein the Rule of Law collapses under the weight of the gun and the subject of law is dehumanized; reduced to a development project of the state requiring uplifting and is denied all human rights. Divided into three parts, the chapter maps out the capacity of law to fashion itself to suit the needs of the state apparatus which grows increasingly offensive and brazenly disregards human rights, silencing any form of dissent as it storms through the forests of Bastar, destroying countless lives in its stead. Notwithstanding the bourgeoisie nature of law which by design seeks to alienate and oppress, the chapter leaves behind questions worth pondering over. Are there possibilities in the law of articulating, ascertaining and asserting the voices of the marginalized, of those who are perceived as enemies of the state, mere casualties in the State’s endeavour of combating a law and order situation or is vesting any energy and hope in such a possibility of law a useless exercise?

Reflections on the Future of Violence

The essay traces a sequential history of violence of the Indian nation state, marking the Partition and the Bengal famine as its repressed inaugural events, its ‘creation myths’. Outlining the vision of the nascent Indian state which internalized and fetishized development, planning and related economic rationality, he argues how we need ‘iconographic meditation’ and ‘conceptual reflection’ to understand the genocidal violence of these categories. Further, reflecting on the paradigmatic moments of violence in the post-independent India—Emergency, Narmada, Naxalbari, Bhopal, and Gujarat—the essay unravels hidden layers of statist and developmental violence. As the state marvelled in the ‘new possibilities of evil’ in its systematic apathy to the phenomenology of suffering, there was routinization of disasters and normalization of riots. The essay concludes with an articulation of an urgent need for a new language, a new discourse to understand the routinization of violence and fragility of citizenship that are built into the value system of the current political regime.

Violence Against the Law

The essay looks at the legal struggles fought on behalf of what has been characterized as a progressive ‘LGBTQ movement’ for the rights of sexual minorities and argues that these struggles have been ill-thought and amount to a violation of the law and an inversion of law’s role in social life. While law and changes in the law emerge from social struggle, these legal battles have sought to short-circuit that struggle and effect social change through the juridical. This amounts to violence upon the law and upon communities of sexual minorities, like the hijras, whom these legal struggles claim to represent. Closely examining the Naz judgement of the Delhi High Court, the Koushal judgement of the Supreme Court and the NALSA judgement on ‘transgenders’, the essay argues that we need to re-think our negotiation and languages of the law and rely on deep sociological engagement rather than abstract ‘progressive’ lingo to change the law and the world.

Violent Beasts and Legal Animals

What kind of animal politics, what kind of human politics, makes possible in India a negative anthropology of the animal that is accurate and ethical? The essay suggests that the correct approach should include an uncompromising and fully non-deterministic conception of law’s role in human relations with the animal. The essay is a [re]examination of law, violence, and animals/ animality. It draws upon sources from philosophy, history, law, culture, art, and society to shift the focus of the discussion away from ‘being’ and towards ‘becomings’, that is, towards potential possibilities and the ground for individuation. The musings on crows, on woundedness and the difficulty of reality, on violence and order in the postcolony, on the rule of law for nature in India, and on the problems and perils of utilitarian reason and a narrow protectionist approach for animals—suggest that while an uncompromising and completely non-deterministic aesthetic-politico-legal approach to violence and animals may be immensely challenging and incredibly difficult, it is this, this continuous and constant striving for the unsettled proper of man and animal, which ultimately allows us to practice our humanness without being ashamed of our continuity with all life.

‘Human Rights’, ‘Rule of Law’, and ‘Violence’

The principles and practices of ‘human rights’ have been dismissed as the discursive architecture of social domination from imperial to postcolonial regimes. Yet, criticisms of ‘human rights’ as colonial, minimalist, racist, bourgeois and otherwise subservient to capitalist or state interests have prompted ‘human rights’ advocates merely to improve its global ‘regime.’ ‘Human rights’ thus remains the hegemonic if anxiously defensive framework of justice activism, a kind of normative synonym for social engagement haunted by inadequate ethical justification. Given its internal desire for moral validation the ‘human rights’ project seeks to legitimize humanitarian organizations and campaigns by adopting the dualistic reason modelled on the rule-of-law/laws dialectic. But the progressive tension between the ‘rule of law’ (or lawfulness) and specific laws (or legislation) stages the discovery and refinement of particular societies’ commitments. The rule-of-law/laws dyad cannot be universalized to subsidize an ethically cogent ‘human rights regime’. The humanity:rights::rule/laws analogy fails by eliding the value-laden desires and justice claims discrete legal traditions mediate. The dis-analogy between universal rights and particular laws – rights express abstract ‘human’ traits but laws express concrete ‘cultural’ demands – suggests the violence of dualistic rationality more generally, manifest in the ‘humanitarian’ incapacity to endorse militant or non-secular resistance to occupation.