Tuesday, September 1, 2015

A Consummate Hanging Bares Gaping Holes in Nation State’s Democratic Facade

- Sanjay Kumar

At 7 AM on 30 July, 2015, the Republic of India hanged a man named Yakub Memon. By all means, though without anyone’s planning, the hanging turned out to be the endpoint of a consummate exercise. Three judges of the highest court of the land sat through the night, right up to two hours before the execution to decide on the last petition of the condemned convict. The highest law official of the central government came to put forth arguments against the petition at two thirty in the morning, while some of the most respected and best legal minds of the country argued for it. Even before this post mid night hearing, the case of Mr Memon had been through more than one round of curative and review petitions in the Supreme Court, and mercy petitions with the President of the Republic. Much earlier, in fact more than twenty years ago, the Mumbai police had carried out perhaps the most painstaking, and detailed investigation of independent India into the 12 March, 1993 blasts; cracking the case within two days and filing a 10,000 page charge sheet within eight months. The trial involving 123 accused, 684 witnesses and voluminous material evidence ran for ten years. After Mr Memon’s guilt and conviction were established by the trial court, his appeals had gone on in the Supreme Court for nearly a decade. Two years ago the then Government of India had hanged Afzal Guru, a Kashmiri convicted in the Parliament attack case, without informing his family, and refused to hand his dead body to them. Nothing of that shameful behaviour was repeated this time. What more could the criminal justice system of the country have done in the case of Mr Memon! Yet, his execution has left behind more questions on the institutional biases, and ideological underpinnings of the Indian state, than perhaps any other execution.

The crime and punishment of March 1993 Mumbai blasts invariably rake up the fact and consequences of the communal violence the city had suffered two months earlier. Even the government appointed Justice B.N. Srikrishna commission had noted a feeling of revenge among a section of Mumbai Muslims after their community was targeted in the riots. However, the main reason riots and blasts get associated even two decades later is the stark contrast in state response to the two crimes. The December 1992 and Jan 1993 killings had claimed 900 lives. The Srikrishna Commission had squarely held Shiv Sena, the main political party of the city, responsible for the mayhem. However, the criminal justice institutions of the country have managed to convict only three persons with one year imprisonment.

Independent India was born in the frenzy of Partition violence, which consumed up to 500,000 lives and led to forced migration of 15 million, the largest ever seen in human history. The violence was all criminal, little of it could be justified in self-defence, and it was committed by non-state actors. The crime of terror too visited India soon after. Both, the 20 January, 1948 bombing of Gandhi’s prayer meeting, and his murder ten days later were the work of Hindu fundamentalists. Indians have suffered communal and terror violence ever since. Many more have suffered communal than terrorist violence. Yet, Indian state has treated the two sets of crimes very differently.

Communal and terrorist violences share a number of features. Both involve criminal conspiracy and organisation, have political goals and target innocent citizens. They are different in other aspects. Preparations of communal violence are often public. Many commissions appointed after incidences of communal violence have noted aggressive political mobilisations before actual mayhem. Actually, it is not difficult to predict communal violence and its perpetrators are well known in advance. In contrast, terrorists remain hidden till they attack. Communal violence rarely targets state. Terrorist violence is often a direct challenge to state’s authority and its functionaries. There is also a macabre class element. The affluent sections of the so called majority community are rarely likely to be victims of communal violence. Terrorist violence, even when random and not directed at high state functionaries, is ‘universal’ in the sense that anybody can be its victim.

State functionaries in India continue to view communal violence through the colonial lens, as a ‘natural’ aspect of Indian social life. It is treated as a riot between two groups. The best state response is seen as keeping itself at a distance, appear even-handed, and to not let things go too far. This is pure state ideology; learnt, argued and justified by its functionaries, which is far removed from the actual reality. As Nellie (1983), Delhi (1984), Bhagalpur (1989), Babri Mosque demolition and accompanying killings (1992), Mumbai (1992-3), Gujarat (2002), and Muzaffarnagar (2014) show, the communal violence in India is actually a planned violence against a beleaguered minority, with a well defined political goal. This should be evident to anyone with a modicum of objectivity. Why do Indian state functionaries refuse to see this reality? This is because of the majoritarian bias at the very heart of the Indian state, which makes it blind to crimes committed in the name of the so called majority. The majoritarianism of Indian state and politics may not be as deep and as manifest as some other countries of South Asia, but that is hardly a solace to its victims, or others wishing to build a democratic society.

In contrast to communal violence, the state in India has been quick to respond to terrorist violence. It has enacted special laws dealing only with terror, trained special forces, and has shown little hesitation in violating some of its own declared principles related to due judicial process. Since politically, the terrorist violence is a direct challenge to state authority, all states respond strongly and definitively to terror. A democratic state, however, has much more on its palette. Its sovereignty is derived from its people. It has to treat politically motivated violence against its citizens even more seriously than a violent challenge to its legitimacy, since the latter itself is based on public security it provides to its citizens. The majoritarian bias of Indian state is an important element of its non-democratic content. Actually, it has also coloured its response to terror, whether real or imagined. It is routine for Indian police forces to randomly pick young Muslim youth after every terror attack. Even in those cases where their community is the target, and latter investigations have shown the so called Hindutva terror groups to be responsible, these youth end up spending years in prison.

The majoritarianism of Indian state has taken another serious turn recently. At one time Indian investigating agencies were investigating 16 cases of terrorist violence against Muslims perpetrated by extremist groups claiming to work for ‘Hindu interests’. Newspapers on June 25 reported that the the special public prosecutor in Malegaon blast case of 2008, Ms Rohini Salian has publicly stated that she has been asked by officials of the National Investigating Agency to ‘go soft on the accused’. The blasts had claimed four lives during Ramzan. In any self-respecting criminal justice system, a public statement of this nature would have led to a political and judicial crisis. What is the point of trying an accused whom the investigators want to protect? It reduces the entire judicial process to a charade. In India however, nothing but a perfunctory denial by the NIA has come out in response.

The majoritarian bias of the Indian state is not a consequence of this, or that government, or political party; even though the character of the political party in power does make a difference as evident in the case of claims made by Ms Salian. After all, out of more than two decades since Mumbai communal killings and blasts, the usual suspects of majoritarian politics, namely the BJP and the Shiv Sena, were in power in Maharashtra for only five years. Framers of constitution gave Indian state a broadly modern and liberal democratic framework. Democratic aspirations are also manifest in a number of popular agitations that challenge the powerful, and demand rights and accountability. Important sections of the propertied have begun to value some of the key personal freedoms of liberal democracy. And, it can not be denied that barring a few exceptions, the republic of India has been ruled by popularly elected governments. Yet, all of the democratic prescriptions, procedures, aspirations, stirrings and struggles have failed to dislodge the anti-democratic ideological and cultural roots of the Indian state that thrive in Indian society.

The Undemocratic Indian Social Soil

All societies trying to be democratic grapple with anti-democratic social institutions and ideologies that provide overt and covert ballast to the new and old privileges. The most commonly recognised anti-democratic practice in India is the individual corruption of state functionaries. Even the privileged strata at times have mobilised against it. Some of the more systemic, less individuated, and hence more pervasive anti-democratic practices too have received attention. State and its ideology, which favour reasons and conveniences of the state over citizens’ rights, have been opposed in discourses and movements for rights and empowerment. Left political forces have long emphasised the key role of class in favouring the rich and dis-empowering the overwhelming working majority. However, there is another even more deeply ingrained anti-democratic force that has received only a perfunctory, and that too a defensive mis-recognition. It may appear surprising, but Mr Memon’s hanging also provides an evidence of the continuing significance of caste and Brahminism for Indian state.

It is well known that the chief author of Indian constitution, Dr B. R. Ambedkar had little respect for Brahminical dharma shastras. He had publicly burnt Manusmriti on 25th Dec 1929. It is commonly believed that once un-touchability was outlawed, and caste based reservations implemented, the problems of caste and Brahmanism were taken care of. This is especially true of the thinking of upper caste elites who continue to enjoy near monopoly over positions of economic, bureaucratic, and ideological power. Dr Ambedkar’s understanding however went much deeper. In the Annihilation of Caste, a text addressed to caste Hindus, he emphasized another feature of caste; that it does not allow apublic to emerge. Like all ideologies enjoying hegemonic claims, Brahminism does provide a place for every one, from the most exclusive Brahmin sub-castes with bizarre obsessions about purity of food, touch and social interaction, to the out-castes beyond margins of Hindu society. Yet, upper caste Brahminism is a fragmented social consciousness, because it lacks an ideological framework to help expand social imaginings beyond the context of the caste. Caste and brahmanism segregate and essentialise humans into inferiors and superiors; and justify any kind of violence and immoral behaviour to the former and obsequious servility to the latter. Its (im)morality is an anti-thesis of any public morality.

The self ideology of Indian nation state was carefully crafted to avoid overt references to Brahminism. The secular section of the Indian national movement managed to get symbols of the non-Hindu Ashok’s imperial state selected as primary state symbols, and his edicts inspired by Buddhism as its proclaimed morality. Brahminism though was not displaced. If the idea of India gave it ample space through the twin tropes of ‘India as a great civilisation’ and ‘Sanskrit as the epitome of Indian culture’, its most enduring legacy exists in distinct modes of thinking and feeling that are deeply entrenched.

Last year, after two Konkani Gaur Saraswat Brahmins were made cabinet ministers, a prominent English language TV journalist went to town expressing his GSB pride. It appeared embarrassing to some of his upper-caste cohorts, only because it spilled a well experienced secret, that their caste continues to be an important element of their self recognition. Caste also colours their recognition of others; in the academic and bureaucratic domains as reservations vale (those who have come through reservations), and in the non-recognition of the prevalence of caste. Upper caste students of IITs have demonstrated against caste based reservations with brooms in public. While using broom as a symbol of social shame, they should have also known that all sanitation workers in India at present are the erstwhile out-caste dalits. The brute force of caste comes out in atrocities against dalits, and the lack of any legal deterrence to the perpetrators of these crimes. Here is a partial list: Kilevenmani (1968) (dalits killed 44, convictions: Zero), Laxmanpur Bathe (1997) (58 killed, convictions: Zero), Miyapur (2000) (34 killed, convictions: Zero), Bathani Tola (1996) (21 killed, convictions: Zero) (from G. Sampath, The Hindu, 23.8.2015). What is the legal loophole through which murderers of dalits escape? According to Saurav Datta, a criminal justice reform activist quoted by Sampath, ‘ ..because our courts have steadfastly refused to see caste prejudice or caste hatred as a key component of .. criminal intention’. But then, what can be at the root of the refusal to countenance an obvious fact of life in India? According to the Supreme Court, the conscience of the nation demanded that somebody like Afzal Guru be hanged. Why does the same conscience not get rattled when murderers of gruesome caste killings go scotfree? Oh! Were it theManusmriti that prescribed death if a Brahman is harmed, but no punishment even when an out-caste is killed?

Despite its symbolic displacement, brahminism survives in the hard punitive core of the Indian state; not as an overt demand of caste privileges, but as a distinct mode of justification. Hence, it was not an anachronism that while rejecting the review petition of Mr Yakub Memon two days before his hanging, a judge of the Supreme court referred to a shloka from dharma shastras, while exhorting the lawyers arguing for Mr Memon to keep in mind whom they were trying to help (Indian Express, 29 July, 2015). The message of the shloka that the king must punish, lest the sin of the crime passes on to him, has no place in the criminal justice system of a democracy. Democracies do not survive on the fear of punishment, and their legitimacy does not lie in their punitive powers; instead their strength emerges from the promise of inclusion and public trust. The universality of democratic principles is realised in consistency of practice. The latter however, appears to be missing even from matters of life and death decided by the Indian criminal justice system. It has been cogently argued that the commutation of death penalty in India has become a lottery. Even in terror related cases, the out come has been very different for those accused in Rajiv Gandhi assassination, killing Mr Beant Singh and Mumbai blasts. The sensible response would be to keep all hangings on hold till legal matters related to mercy petitions are untangled. Yet the Indian state showed an unseemly haste in sending Mr Memon to gallows.

It can be argued that pride in one’s community, indifference to injustice to the most deprived, or legal infirmities are common world over. If they are also present in India, why hang them on to caste and brahmanism? Ideologies of all ruling groups share a number of features, it does not mean these have the same character. Ruling class ideologies evolve in definite social histories and contexts. Caste and brahmanism in the twenty first century India needs to be placed in its current context. If, as shown by Dirks, the British rule provided a fertile ground of a particular kind for the reformulation of the caste, the latter has further changed after independence. Electoral politics of liberal democracy, affirmative action, and struggles against caste have all played a role. Most of the massacres of Dalits in post-independence India are handiwork of the Other Backward groups from the erstwhile Shudra varna, who have emerged as the dominant castes of the rural India after land reforms and urban migration of dvija castes. Caste can not be the organising priniciple of a society whose economy is dominated by capitalism and form of the state is liberal. Also, caste is no longer a singular marker. There is little manifestly common between a GSB like Mr Rajdeep Sardesai, and a brahmin from mofussil UP working as a security guard in Delhi, who got the job through his caste network. Yet, they both carry their caste marker with a sense of arrogance. Caste and brhaminism are parts of a much wider matrix of power and privilege in India. They play a dominant role in the notions of the self, and evaluative judgments. Caste continues to be an important determinant of intimate personal affairs like marriage, (so that even the mother of a gay young man in a newspaper ad invites proposals only from men of the right caste), or friendship. The moral world in India, dominated by religion, karma , superstition and apathy, survives on the historical baggage of brahmanism. As long as caste is not jettisoned explicitly, the social inertia of this baggage from the long past of Hindu society means that brahminism will continue to remain a privileged ideology. Its biggest role today is the encrusted resistance it offers to the spread to the ideas of universal democracy.

By all accounts, Mr Memon died a man with dignity. A similar message was given by the silent mourning of thousands during his burial. Notions of universal humanity expect us to recognise and respect human virtues even in those whom the legal system may have declared to be a terrorist. Compare this with the morality of the brahman acharya Dron, who had no compunction in asking that the thumb of adolescent out-caste Eklavya be cut, so that the dharma based monopoly of kshatriyas over arms is maintained. Dron’s may be a myth, but the government of India has named the award for best sports coaches after him. Until the legacy of Dron (and Manu) is rooted out, democracy in India will remain facile. That is what Dr Ambedkar meant by his call for the ‘Annihilation of Caste’.

Sanjay Kumar teaches Physics at St Stephen’s College, Delhi, and is associated with New Socialist Initiative (NSI) and People’s Alliance for Democracy and Secularism (PADS).


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