Of law, resurrection and a future


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THE complex and difficult debates around law have burst to the surface yet again in India with a cluster of very troubling issues – some old debates that persist in sliding back each time in Sisyphean fashion; some new troubles with a new law; some interpretations of law that border on absurdity, fore-grounding the fragility of constitutional morality within constitutional courts – all pointing to the precarity of dignity and survival in a society with graded inequalities and deeply entrenched patriarchies that remain rooted despite decades of struggles against caste and religious fundamentalism, movements for civil liberties, law reform and feminist engagements.

The context for the current debates, we must never forget, is set by the rule(s) of ‘law’ in a larger environment of a total constitutional breakdown and counterfactual assertions as the bedrock for the interpretation of ‘law’ and ‘justice’ in the everyday – from the ‘counterfeit grief’ of the Supreme Leader (to borrow from Apoorvanand)1 to the canonization of mobs on the rampage (the tricolour adorning the body of the prime accused in the murder of Mohammed Akhlaq in Dadri) to the celebration of the courage of police officers who kill disarmed prisoners in custody (the chilling murder of SIMI undertrials in Madhya Pradesh) and the criminalization of an entire people (Kashmir). Muslims are at the centre of this entire routinization of dispossession, loss of life, dignity and security as never before. And finally, the absurd interpretation in a constitutional era, of the duties of a Hindu son to his parents, where the Hon’ble Supreme Court held that a suicide bid by a wife is cruelty on the husband since he will be entangled with the law for life, and that asking for the husband to set up a matrimonial home apart from his parents is cruelty since it obstructs the Hindu son from his pious obligation to his parents.2

Precipitation of conflict through food cultures around beef, the circumambulations around the cow, the rise in practices and technologies of stigmatization and the spiralling collective, targetted, aggravated violence deployed through a convergence of state and private actors, fold the Dalit and Muslim questions together even as they remain separate and distinct in all other respects.

It is against this larger context that I will attempt briefly to flag my concerns around gender, law, civil liberties and society, yet again.

The periodic reporting under the UN Convention on the Elimination of All Forms of Discrimination Against Women (hereafter CEDAW) has opened out possibilities for debate, discussion and negotiations around law and policy for women’s rights among women’s groups across the country. While the process might have its limitations, what is evident from the deliberations is the energy women’s groups put into providing the Committee on the Elimination of All Forms of Discrimination Against Women (hereafter Committee) with the evidence, data and testimonies to counter government claims of full compliance to all articles of CEDAW. The 2014 Concluding Comments of the Committee,3 a fairly accurate statement of the problem, serve as a useful point of departure to revisit current debates on a range of questions.


While placing on record the positive measures taken by the Government of India towards eliminating gender based discrimination, the committee expressed concern ‘at the absence of a comprehensive anti-discrimination law addressing all aspects of direct and indirect discrimination against women, and all the forms of intersectional discrimination’ (Concluding Comments: para 8; hereafter CC: 8). That the situation in India presents a bleak picture of security for women is, for the committee, evident in the rise in violent crimes against women; the retention of the exception of marital rape in the new legislation protecting women from sexual assault after the deliberations of the Justice Verma Committee; the escalation of caste based crimes, especially sexual assault against women and girls; the poor implementation of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act even in cases that involved gruesome violence against women; the persistence of ‘honour crimes’ by family members of women and girls; the rise in dowry related deaths since 2008; the increasing number of acid attacks against women and girls since 2002; and the criminalizing of same sex relationships by the Supreme Court of India when it overturned the decision of the Delhi High Court (CC:10) in the Naz Foundation case. We need not multiply examples to assert that every one of these forms of violence against women is rising in alarming proportions across the country.


Ten months after she lost her son Rohith Vemula to caste discrimination and dehumanizing exclusion in one of the most acclaimed university campuses of the country, Radhika Vemula is battling a judicial system, government and university administration, asserting her claim that her son’s death be treated as a caste atrocity. Interestingly, neither the university administration (the serving vice chancellor, in this case a direct party) nor the government has denied that Rohith was forcibly evicted from the hostel and other public spaces in the university. Nor is there a denial that his occupation of an open space in the university campus, which he called the velivada,4 was unambiguous in calling out caste discrimination and deep-rooted practices of untouchability on campus – for what other name can we give the conduct of those that reign in a ‘republic of the touchables’?

However, when a case of atrocity was sought to be registered under the SC/ST (Prevention of Atrocities) Act, 1989, with the vice chancellor named as accused, the contestation was not that the vice chancellor was not complicit, but that Rohith was not dalit. The insidious circulation of the dominant narrative that this ‘dalit’ was not in fact one – he masqueraded as one, and his mother is perpetuating this myth, sought to undermine the credibility of anti-caste collective action, and through that means reinstate the vice chancellor to a position of dignity, authority and power. But this is a mother who has lost her son, a woman who has refused monetary compensation, and who demanded that the vice chancellor meet her in full public view on his own campus, not in secrecy in a furtive visit to her home (a demand that has not to date been met). Most importantly, this is a woman who had the courage to stand up and demand that the vice chancellor be tried for an atrocity that led to the death of her son.


It cannot be forgotten that her tenacity was pitted against an unprecedented attack from the highest quarter: Union ministers, members of parliament, legislators, police, the entire university administration and regrettably a sizeable proportion of the teaching community in the university used disproportionate power to delegitimize the single claim Radhika Vemula had made: as a dalit woman of Mala caste, a survivor of domestic violence and desertion, possibly also of bonded domestic labour, who was a single parent, she had raised her children as dalits in the environment that she belonged to by birth. The woman who ‘adopted’ her did not deny this fact, and the discovery of her caste by birth was the reason for desertion by a violent husband, leaving her to fend for herself and her three children with no resources, assets or education. Therefore, while she may have been married to a man of Vaddera caste, which is not a scheduled caste, her early separation, and her sole responsibility in the upbringing of her children, supported her claim that her children bear her caste and not their father’s.

As I have pointed out earlier, what we need to determine is whether Rohith’s suicide raises the question of abetment by a non-dalit. Rather than address this, the entire legal discourse around Rohith’s death has circulated around whether he was dalit at all. The matter that has been left unaddressed, and still stands in confrontation with the vice chancellor’s position, is that abetment to suicide is in any case a crime under the Indian Penal Code. It is a targeted crime – an atrocity – if a non-dalit (especially one in a position of power to take decisions that have a direct bearing on the survival and dignity of a dalit person) discriminates against a dalit and is thereby complicit in his suicide.


Be that as it may, the question of matrilineality is at the core of the justice claims in the case of Rohith Vemula. In a caste order, and in sociological/ anthropological literature in India, matrilineal kinship is addressed in a manner that seals off related caste groups through the insular parcelling off of claims to inheritance along several axes. Therefore, while restricted and rigidly controlled social (and sexual) intercourse across castes is socially sanctioned, inheritance (of name, property, identity, privileges, dispossessions) is insulated within caste, negating the possibility of cross-caste inheritance claims. This is not only the case with known ‘matrilineal’ cultures, as in Kerala for instance.

In patrilineal caste society where hypergamy is the norm, the access to privileges, and identity for the children of dalit and adivasi women who marry/cohabit with men of dominant castes, is only at the pleasure of the men and the dominant community. Crying foul and generating hysteria around misrepresentation and false claims is part of this same politics of dominance – as we witnessed with the incessant under-mining of the credibility of Radhika and Rohith Vemula by alleging that their certificates are ‘false’ because the father is not a dalit. The fact of the vulnerability of dalit women to violence and exploitation by dominant men on the basis of caste forms part of the framing of atrocity itself. What then is the false claim? That a son ended his life unable to bear the humiliation, depredations and dehumanization of caste (annihilation by caste)? That any sense of restoration or healing or justice for the mother is possible only by naming the humiliation and the attendant violence and seeking accountability and responsibility? Can we even begin to understand the politics of the ‘false case’ accusation?


Justices Aftab Alam and Ranjana Prakash Desai in Rameshbhai Dabhai Naika vs State of Gujarat and Ors,5 addressed the issue: ‘What would be the status of a person, one of whose parents belongs to the scheduled castes/scheduled tribes and the other comes from the upper castes’ (para 1). The question the judges posed to themselves in addressing this was whether the petitioner’s father’s non-dalit status gave him an ‘advantageous start in life’ or did he suffer ‘the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged?’

Additionally, was he treated like a member of the community to which his mother belonged, not only by that community but by people outside the community as well? Because, conclude the judges, ‘[i]n an inter-caste marriage [i.e., a marriage between an SC/ST person and a non SC/ST person] the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. It is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe’ (para 43). This is the law as it stands for now. And yet the case of Rohith Vemula has made no progress. Radhika Vemula stands firm but to no avail. And life goes on, unhampered by the utterly avoidable death and the inexcusable violence on students and faculty sanctioned by the university administration.


We have news now that charges of murder and criminal conspiracy have been filed against Nandini Sundar, Archana Prasad, Vineet Tiwari, Sanjay Parate, Mangalram Karma and Manju Kawasi in Chhattisgarh for the killing of Shamnath Baghel, an adivasi man. There is no basis whatsoever for this charge, except that these are people who have over the years been tirelessly documenting human rights abuses in this state and petitioning courts for relief on behalf of adivasis who have been irreparably affected by the conflict. We have already witnessed the burning of effigies of these and other concerned citizens by Inspector General Kalluri. Close by, in Madhya Pradesh, we saw with horror the gunning down of eight unarmed undertrial prisoners. In Kashmir, over months, we have seen the murder and grievous hurt inflicted on civilians – men, women and children. And, of course, these are only the most recent in a long list, over the past two years especially, that have opened up the festering sores of hatred and raw violence that knows no limit. There is no attempt to answer questions any more, much less fix accountability. State responsibility is a matter of chest thumping, arrogant self-declaration, with no fear of prosecution. After all, the killing fields spawn ‘national heroes’.

Conflict is never episodic, isolated or discrete. There is a cumulative deployment of technologies of violence and the perfection of impunity. I had written in the context of events that unfolded in the University of Hyderabad that Salwa Judum and the creation of velivadas were the new methods of rule. We see a proliferation to other locales in the formal extension of the guarantee of impunity to private actors: whether these are ABVP foot soldiers on campuses or law-violating lawyers or hate-speaking TV anchors or mobs on the prowl searching for people, bodies, condoms, writing… just about anything that can loop into the next spiral of hate crime.


We have laws and procedures established by law. However, when state action takes a sharp turn towards vesting formal power in the mob to kill, maim, humiliate, and when the ‘speech of the nation’ folds into the violence of the mob, which is indistinguishable from official declamations, we witness a new turn in the history of impunity. This vesting of formal power by representatives of government and agencies of state in private actors (whether the RSS, or the ABVP, or the VHP, or any other) takes us over the edge of the precipice. The guarantee of impunity to private actors puts the state beyond impunity. State actors – especially the police and armed forces – can then burn effigies, shoot down unarmed prisoners, shoot to kill unarmed protestors and mourners, register false FIRs implicating human rights defenders in murder and criminal conspiracy charges and write directly to university administrations (that are already heavily compromised on questions of autonomy) notifying them of ‘enquiries’ on human rights work of faculty.

With a Supreme Court ruling setting out the legitimacy of this very work of these very people,6 a full bench decision of a constitutional court on ‘encounters’ (which although indefinitely stayed by the Supreme Court, sets out the reasoning for making the police accountable for their actions),7 a Constitution that guarantees fundamental freedoms, including importantly, the right to dissent and criticize government – it is still possible now to offer no explanation at all about threats to arrest, actually arrest, and murder persons in custody. It is possible today, despite the Geneva Convention, to boast about the mutilation of the bodies of dead enemy soldiers, with no fear of condemnation, forget prosecution for war crimes.8 Hard won gains of protracted battles for civil liberties are consigned to distant memories, caricatured in the strident public discourse driven entirely by the state.

And while the fields of impunity proliferate, conversations around law in and around courts are twisted into tunnels without light or destination: the debates around triple talaq and carceral feminism especially speak to the complex terrains of hostile environments in times of conflict, where narrow prescriptions of identity are forced to determine speech, especially on women’s claims to justice (unsurprisingly the sexual/conjugal behaviour of women, as the case may be, is the focus yet again, of delegitimation) – irrespective of the specific and situated claims women make.


Yet, this arbitrariness is not anarchic. There is a plan and a pattern that pushes towards constitutional breakdown, in our case, similar to the constitutional exception that US film maker Ava DuVernay speaks about. The 13th Amendment to the Constitution of the United States of America declared that, ‘Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction’ (emphasis added). In a brilliant documentary on how modern practices of incarceration and the prison labour system in the US is in fact an extension of slavery, Ava DuVernay opens out to stunning view, the exception clause in the 13th Amendment (‘13th’, Netflix Documentary).9 The lesson for us is in the unimaginable interconnections between law and lives and intersectional histories of oppression/subjugation/prejudice and the fraught and dangerous politics of carcerality in sharply divided social orders. The lesson too is in speaking to and about these intersectional histories and their bearing on the present.


This past year we have also witnessed a churning in the university system – and connected to this in society: Rohit Vemula and Jignesh Mevani epitomize a stunning new collective articulation of communitarian life and sociality – that builds on the core of anti-caste sensibilities of the politics of the possible.

We have a Constitution – in fact that is our only possession now, even in times of breakdown that gives us a slim hope of resurrection. And resurrection itself is always on the horizon, not as far away as we imagine it to be. But the road of ‘ethical insurgency’ (to echo Upendra Baxi) is rough and un-navigable. Do we have a choice?

The figure of Iqbal Bano in her black sari in 1985 singing Faiz – Hum Dekhenge – spins into memory, as if showing us the way.



1. Apoorvanand, ‘The Chief of Counterfeit Grief’, The Wire, 2 November 2016. http://thewire.in/77325/chief-counterfeit-grief/ Accessed on 9 November 2016.

2. Narendra vs. K. Meena, Civil Appeal No. 3253 of 2008, Supreme Court of India. Judgement delivered by Justice Anil Dave.

3. Committee on the Elimination of Discrimination Against Women, Concluding observations on the combined fourth and fifth periodic reports of India, CEDAW/C/IND/CO/4-5, 18 July 2014.

4. ‘Untouchable’ hamlet located outside the main village. See also poem by Dalit poet Madduri Nagesh Babu, Velivada, Sreeja Publications, Narasaropet, 1995.

5. Rameshbhai Dabhai Naika v. State of Gujarat, (2012) 3 Supreme Court Cases 400.

6. Nandini Sundar and Ors vs. State of Chhattisgarh, (2011) 7 Supreme Court Cases 547.

7. Andhra Pradesh Civil Liberties Committee vs. State of Andhra Pradesh, 2007 (5) Andhra Law Times 639.

8. Arun Mohan Sukumar, ‘Beheading Dead Soldiers is a War Crime, Bragging About it Does No One Any Credit,’ The Wire, 10 October 2016. http://thewire.in/72211/ beheading-dead-soldiers-war-crime-bragging-no-one- credit/ Accessed on 9 November 2016.

9. I am grateful to Deepa Dhanraj for insisting I put aside all other preoccupations to see this film. Her sense of urgency gripped me within seconds of viewing the film.