As is customary for anthropologists, let me set the scene with an ethnographic vignette—a courtroom drama.
On 29 July 2020, the Supreme Court of India was hearing the habeas corpus appeal of Mian Qayoom, a 73-year-old lawyer and president of the Jammu and Kashmir High Court Bar Association. Qayoom was among hundreds of political dissidents and activists held in preventive custody under the Jammu and Kashmir Public Safety Act (PSA) after being picked up at midnight raids in the week preceding the constitutional amendment of Article 370. While many political-detention cases in Kashmir are never finally heard or adjudicated, Qayoom’s habeas corpus challenge had travelled from the Jammu and Kashmir High Court, where it had been rejected, to the Supreme Court. Speaking for the bench, when Qayoom’s habeas corpus petition was being heard, Supreme Court Justice Sanjay Kishan Kaul stated, ‘It is time for all the wounds to be healed and to look to the future of Kashmir within the domain of our country. Hope is something which creates the future, and for which we are all hopeful.’[1]
The Government of Jammu and Kashmir wouldn’t contest the challenge, and intended to unilaterally suspend the detention order and release Qayoom. The court applauded the state’s benevolence in allowing Qayoom to be released early so he could spend the festival of Eid with his family, advising him to also adopt a more ‘constructive approach’ in the future and telling the government to consider how to bring about ‘complete normalcy’ in Kashmir at the earliest. The three-judge bench then ordered Qayoom’s conditional release on the basis of an affidavit that he would not travel to Srinagar until 7 August, i.e. after the anniversary of the abrogation and would not issue any public statement. Since Qayoom was being set free, the court found it unnecessary to rule on the central legal question of the state’s violation of Qayoom’s fundamental right to life and liberty through his illegal detention. The Supreme Court’s failure to rule on the illegality of Qayoom’s detention and overturn the Jammu and Kashmir High Court judgement, even as it ordered Qayoom’s conditional release, meant that the lower court’s decision still continues to serve as precedent and shapes the law relating to PSA decisions in Kashmir.
Viewing the court’s failure to consider the liberty question makes this case yet another act of ‘judicial evasion’ in a tranche of similar instances involving illegal detentions of Kashmiri political prisoners. In discussing Kashmir after the 2019 abrogation, though Indian constitutional scholars made comparisons to the mass detentions of the suspension of habeas corpus during the Indian Emergency of 1975–77, they made no real reference to the fact that habeas corpus—the right to know where and why you are detained, to have the state produce your body—had been constitutionally suspended in Kashmir by a provision written into the Indian Constitution. We all know about Article 35A, which gave Kashmiris the right to ownership of land, but very little is said about Article 35C, part of the same basic order that included 35A in the Indian Constitution and which said that no laws relating to preventive detention would be subject to any constitutional or judicial review. This was part of the Indian Constitution between 1954 and 1978, yet has been written out of our constitutional history. The reference is always made to the Indian Emergency rather than the 25-year period of constitutional suspension of habeas corpus in Kashmir.
At the time of the abrogation, India had pre-emptively curtailed massive popular protest and dissent by imposing a severely repressive siege, including troop deployments, communication blockades, undeclared curfews, widespread detentions and other human rights violations. It justified the state of siege as a necessary step to impose a special and temporary legal order during a particular crisis. But this legal order, including the suspension of habeas corpus, is neither special nor temporary. It is a persistent and pervasive feature of the emergency legal order, a constitutive, continuing feature of the Indian law in Kashmir. The Wire recently had a piece about the habeas corpus litigations pending in the Jammu and Kashmir High Court; habeas corpus cases are not being heard for 18, sometimes 24 months. In jurisprudence, habeas corpus cases are considered urgent matter.[2]
In constructing Kashmir as a base of beauty, hope and healing within the domain of our country, the Supreme Court did not simply evade questions of liberty and the rule of law in the specific instance of this particular case before it, or in the region more generally. I contend that it staged the rule by Indian law over Kashmir rather than the rule of law. It erased the indefinite and complete suspension of rights and liberties in the region while legitimizing the use of law as an instrument of counterinsurgency lawfare—of coercive and constitutionalized pacification, of militarized welfare and goodwill.
Unlike in the original abstract, the title of my piece is now called ‘No Justice, No Peace: Talking about the Law in a State of War.’ The rallying cry, ‘No Justice, No Peace’, comes from the Civil Rights Movement in America and saw a resurgence during the Black Lives Matter protests. It can have two meanings. One, a consequentialist meaning—a meaning born of rage, of righteous indignation. We will continue to agitate, we will continue to protest, we will continue to not have peace. We will resist, we will disobey if, as long as, oppression continues, there will be no peace, there will be war. ‘Everywhere, there will be war,’ as Bob Marley says, until you recognize that we have been wronged and until we have justice. Or two, a conjunctive meaning: peace and justice go together and are irredeemably entangled. There can be no peace in the absence of justice, and there can be no justice without conditions of peace.
As Professor Spivak reminded us yesterday, the law is not justice, though it is just that we have laws. We often say in our jurisprudence classes that law is Janus-faced—one side faces law and order and quells disorder, and the other side faces justice. This is the promise of law and the limit of law. The turn of law to order is the turn to preserve itself, to always maintain the status quo by any means necessary. As I speak, the five-bench constitutional court is hearing questions of the constitutionality of the suspension or the abrogation of Article 370. At the same time, as I was watching the hearings two days ago and Kapil Sibal was holding forth on the importance to our Constitution of this matter, raids were going on in Kashmir on human rights organizations. Seven human rights organizations were raided. This is the Janus-faced nature of the law.
What happens to questions of justice when there is a state of war, in the fog of war? In legal terms, during war or external aggression, internal rebellion or insurrection, where the life of the nation is itself threatened, its law obviously is threatened too. It begets a state when law is suspended and executive authority is supreme—what we call an emergency. But what if the state of conflict, the permanent emergency as is the case with Kashmir, is itself unrecognized and unnamed? What if we deploy hundreds of thousands of soldiers on active military duty on counterinsurgency operations directed at civilians? There is a Supreme Court case (State of J&K vs Lakhwinder Singh) involving an off-duty BSF soldier who shot a child on his way back from a game of cricket. The court upheld a notification which pronounced that soldiers deployed in Kashmir are on permanent active duty for 24 hours a day. This means that when they are out of uniform, as in this case, they are still considered to be on ‘active’ service. So impunity laws like the AFSPA, the Army Act, BSF Act would apply to those crimes. They would not be subject to the usual criminal procedures like I would be if I went out and killed somebody.
By definition, the deployment of AFSPA to quell an internal uprising or disturbances is a form of war that is targeted against the civilian population, a war which aims at winning their hearts and minds. This is counterinsurgency doctrine. The Supreme Court described this state of affairs in relation to the conflict in Manipur in the EEVFAM (Extrajudicial Execution Victim Families Association Manipur) case, as ‘Not Peace, Not War’. If counterinsurgency is indeed a state of ‘not peace, not war’, then what happens to the law in that state? Neither is the law suspended, as it is in the case of martial law during war time, nor is it firmly in place. It is, rather, splintered. These are the questions I will attempt to grapple with.
I am inspired by the blurb of another conference I attended, the Law and Society Conference in 2022, the blurb for which was ‘Rage, Reckoning, Remedy’. So the three parts of my talk today about justice in Kashmir are tethered to these three notions. I will explore the relationship of law and justice to each of these senses. Rage: that accompanies the recognition of being wronged, the righteous naming of injustice and the translation of it into law, classifying it, interpolating it, calling it by its rightful name—a felony or a misdemeanour, a war crime, a genocide, a holocaust, an apartheid. Reckoning: a calling to account, a coming to terms, a sense of accountability, who did what to whom, why, a forensic determination of truth, inquiry, investigation and evidence. This is what a trial is, right? And finally, Remedy: a sense of closure, redressal, reparations, reconciliation—not revenge—of moving forward. When we think about the law, we tend to only think about the third, the punishment part. But my talk is going to grapple mostly with the first two and leave an aporia at the end in terms of the remedy.
‘Rage’ involves recognizing that an injustice has occurred or is occurring, sometimes in our name, and calling it out indignantly as an injustice. In my opinion, this is a very important part of the function of law. The translation of the Latin term ‘jurisdiction’ is ‘jus’ and ‘diction’—to speak the law, to exercise authority and speak in the name of the state. The law is a means of representing the wrong. French philosopher Jean-Francois Lyotard coined the term ‘differend’, and made a distinction between ‘differend’ and ‘plaintiff’. A ‘differend’ is a form of injustice or suffering that cannot be represented in language, as opposed to a ‘plaintiff’, somebody who can translate their suffering into a legal claim which enables them to come before the court with a case, with a complaint. When the law speaks, it calls something by its lawful name. When you exert jurisdiction, you name a form of suffering as a thing that has happened within the domain and language of law. In the fog of war, especially in the counterinsurgency state of not peace, not war, where the state of war itself can’t be named as such, there is an inability to speak the rightful name, of ‘naming’ injustice. We know defence journalists and analysts who will speak of the ‘K’ word or the ‘K’ problem. They won’t spell out ‘Kashmir.’ Just like there are maps we can’t draw for fear of confiscation, criminal action or censorship, so too there are words we cannot utter about the nature of law in Kashmir.
I have argued elsewhere alongside Kashmiri scholars that the law in Kashmir is a form of counterinsurgency ‘lawfare’. We draw from two ideas. One: lawfare as a combination of ‘law’; and ‘warfare’, where the law, the courts, become a site for contestation and domination, drawing from a colonial context (citing the Comaroffs here). And two: counterinsurgency law, which is a form of warfare where the enemy is within the legal jurisdiction of the nation, where the rebellion is within, and where the target is winning over the hearts and minds of the civilian population. So in the Indian counterinsurgency doctrine, this part is called ‘heart as a weapon’.
There are two parts to it: you either win them through persuasion, through welfare schemes and benevolence; or you punish them, intimidate them, for their own good or their own protection. Several years ago, an Indian Army camp had a billboard declaring: ‘Get them by their balls and their hearts and minds will follow’. The idea? ‘Be polite, be professional, be prepared to kill.’
I want you to think back to the courtroom drama I discussed at the beginning. What is the work being done by that judge’s speech about peace, hope, normalcy and reconciliation, in a court where a person has been taken from their home in the middle of the night, not accorded any reasons, transported 400 kilometres away, held without any contact with his family and suffering a grave illness in custody. All this happened to Mian Qayoom. We already know some aspects of the counterinsurgency jurisdiction. It involves special powers accorded to the army, the suspension of habeas corpus, the legitimization of draconian laws pertaining to press regulations, mobility, impress and egress, i.e. infiltration and enemy agent ordinance which still allows for the death penalty without much review. In the everyday, it is operationalized through very old, colonial military techniques of collective punishment, perfected in the South East during the nineteenth-century colonial counterinsurgency wars. Techniques of ‘force saturation’, ‘area domination’, ‘CASO’ (Cordon and Search Operation) which cordoned off entire villages, doing door-to-door searches, getting everybody out, SADO (Search and Destroy Operations) which helped destroy houses on suspicious of a combatant or arms being inside, Stop and Frisk, barricading . . . all this is how it manifests in the everyday.
Scholars of emergency have moved away from the black-and-white idea of the Emergency even though the lawyers still continue to use it. At least, the political scientists and the anthropologists have moved away from the idea of the Emergency as an On/Off switch to the idea of a much more continuous and calibrated relationship between the Emergency and the ordinary. I would like to think of counterinsurgency lawfare and emergency powers as a complicated electric circuit board, fluctuating in its powers. At different points of the circuit, you can manage the population or contain them—you can put up a barricade, you can declare Criminal Procedure Code Section 144 restrictions, you can book somebody under PSA, then you escalate it to the UAPA. I think we have experienced this in some way during the pandemic which was a public-health emergency. The law was not suspended because there was an emergency. In fact, the law was everywhere. It was pervasive and invisible, anybody could ask you for a pass, anybody could restrict your mobility or demand your identity.
To summarize: the Indian legal regime, the Constitution, the criminal justice system, the exceptional laws, the Supreme Court effectuating a jurisdiction of multiple, layered and complex counterinsurgency and permanent emergency in Jammu and Kashmir. The emergency regime is characterized by the use of a repertoire of laws, including special laws, terror laws, administrative laws. PSA is actually an administrative law, so it is not subject to the restrictions that a criminal detention would be. The legal regime in Kashmir operates as a mode of political containment in this counterinsurgency jurisdiction, classifying any political threat as a security threat. Any kind of political contestation through speech, public gatherings, Facebook posts, wearing a Pakistan cricket team T-shirt is a security threat. The regime has historically produced Kashmir as an exceptional jurisdiction, a zone of military counterinsurgency and counterterror with no effective judicial or constitutional oversight, over-expansive military and executive powers including the use of military and police force up to and including lethal force, violations of due process, and deprivations of fundamental rights and liberties. It has been characterized by the normalization and legalization of impunity for state crimes including disappearances, torture and sexual violence. Indian constitutionalism, such as what is going on right now in the Supreme Court regarding the hearings in the Article 370 abrogation case, reduces or domesticates it to the constitutionality or lack thereof, of special laws or provisions. For instance, the necessity and proportionality of the internet shutdown, obscuring the prevalence of an armed conflict. This becomes a jurisdiction question, because if there is an armed conflict, then you can invoke an international law—India’s Geneva Convention obligations, legal questions of status determination of the territory, conduct of military operations, the use of force, proportionality, the rights of civilians and non-state actors in an armed conflict.
This is not about internationalizing the conflict to simply say international law is better. It’s a different normative order, sure. But these rights are recognized in our Constitution. The Geneva Convention is a part of the Indian Constitution. What are the consequences of this misnaming? What I’ve been arguing is that we have misrecognized and misnamed the conflict. Part of the justice question is to call things not just by their lawful names or not just the names that we are allowed to call them in the law, but to also call them by their rightful names.
Now, we move onto ‘Reckoning’. The work that lawyers, human-rights activists and historians do is similar. They all see a relationship between truth and historical justice or legal justice. They produce an alternative archive, different from the official archive, and then gather evidence and create a record. For historians, that record may be for eternity; for lawyers, it may be in court. Sometimes, your day in court may never come. In Kashmir, there are many cases from the 1990s about disappearances and extrajudicial killings which are still pending. But you continue to do it in order to be a ‘plaintiff’ and not a ‘victim’, to translate the forms of your suffering into a record that the language of law can appreciate and understand.
I did two kinds of work when I was in Kashmir. One was as a human rights activist and researcher, fact-finding and gathering testimonies of victims, producing ‘factual’ accounts of different things that have happened and demanding legal accountability or reckoning. This work was perhaps addressed to a different normative order, a human right, constitutional, rule-of-law order where the moral compass is differently aligned than the counterinsurgency law. It is a counter-narrative to the state’s account of normalcy.
The other kind of work was as an anthropologist and ethnographer of the court, particularly of habeas corpus petitions. So I attended habeas corpus hearings, PSA hearings, observed what went on in court and produced knowledge about its workings. This was scary, because knowledge that you produce in situations of conflict can be put to all kinds of uses. We know that a big part of the counterinsurgency doctrine in America, for instance, is embedding anthropologists with the military in order to understand the culture of the place in order to manage it. My collaborator, Haley Duschinski, and I have always chosen to focus on documents and paperwork as a site for the micro-practices of emergency—to see the circulation of bodies through the circulation of files without compromising the people involved, people already under threat. The legal representation allows us that one level of difference. This is about doing justice, about coming to terms in another sense, in an ethnographic sense. When we talk about paperwork in this context as a micro-practice of the emergency, it functions as a technique of lawfare.
This [slide] is an example of an IR Report where a body has been reduced to a series of signs and significations. He has a mole on his left cheek. An index of probabilities. Is he likely to be a security threat? Can we classify him as an OGW (overground worker)? ANE (anti-national element)? ASE (anti-social element)? In situations of buried and disappearing evidence and complete impunity, how do we conduct a reckoning? How do we create archives of remembrance and record? Let me give you an example of what I mean by the paperwork allowing us to see, to translate and represent what even the body doesn’t. The PSA dossier often has marks of injuries to identify the suspect, and one of the most common forms of identification is pellet injuries. If you were present at a protest, even accidentally or as a bystander and the protest got shot at with pellets (12-gauge shot gun, used as a means of crowd control), then you would have those injury marks on your body. As a result, many boys who got pellet injuries would not go to hospitals, or doctors would not write their names on their medical documentation. Because plainclothes policemen, present in large numbers at hospital wards after protests, might identify them. So the maiming or disfiguring of the body makes that person a criminal, not any legal facts or witnesses. In downtown areas, at check-posts, adolescent boys are asked to lift their T-shirts, so the police can check if they have pellet marks on their backs. And detain them on that basis. Ethnographic accounts can allow us to unmask the spectacular, horrific violence of the law in a way that the legal file’s account of ‘marks of identification’ cannot.
The other example is from the work that I did with an organization I worked with. Some of you may remember the book by Essar Batool, Do You Remember Kunan Poshpora (2016)?[3] Its story stems from a sense of injustice that young Kashmiri college-going women felt during the Nirbhaya protests. One woman was raped in the middle of the night in Delhi, so the whole subcontinent was up in flames? But what about sexual assaults in Kashmir? This kind of intergenerational injustice where they themselves had not been told about the rapes. Because militarization produces an anxious ‘our women, their women’ narrative, where you will over-protect your own, especially young girls. There is a fantastic story in this book by a woman called Muneza where she recounts an incident from when she was seven years old. She was going back home from school in a bus when it was suddenly stopped outside her neighbourhood—because a cordon was going on. All the children had to get off and walk home. At first, she was quite relaxed about it: ‘The bus-uncle was taking them home’. But then she saw her grandmother on the street who became hysterical at the sight of her being escorted by the ‘bus uncle’. It was much later, Muneza recalls, after she hit puberty, that she understood why her grandmother had been screaming that day, the panic at the thought of letting the soldiers escort the little girls back home. That is when she learnt about Kunan Poshpora.
To take you back to the history of the case: it was a mass sexual assault that happened in 1991. The preliminary investigations were fairly good and thorough. A policeman from the village happened to be escorting the army company around when the cordon was going on, and it produced a huge amount of documentation. But then the case was buried. After the women filed a petition in the High Court asking for the case to be re-opened, the state came to court and said that investigations were pending, over 20 years later, even before their PIL could be heard. The High Court reopened the case and all the files become public. Suddenly, the old case file, from the early investigations, is made public. So we have maps, testimonies, witness accounts, numbers, records—enough material for a book. Police testimony being what it is, we decided to interview the women to have a proper record of what happened, what they remember now, to fill in the gaps in the legal documentation.
So, we went in a group to do a sort of fact-finding enquiry. One of the women, who was very chatty throughout, suddenly said she was feeling dizzy and she couldn’t remember anything. In that moment of the interview, the body forgets and refuses to be reduced to writing. Reducing you to your marks of identification, to the bare body of the forgotten case file is also a form of injustice. Rohith Vemula writes about this too. This is also the contestation, the lawfare from below, going on against that. To take account of unnamed suffering, is to do a reckoning.
Finally, we come to ‘Remedy’. So, what do we do now? This [slide] is a quote from Carl Sagan: ‘The absence of evidence is not the evidence of absence.’ How we do as historians and lawyers provide an account of an event when the means of accounting are disappearing as we speak? In the 1990s, people burnt whole libraries, photo albums, every artefact that revealed any connection to politics, family, trade, kinship, marriages on the other side. Institutions burnt their libraries of human rights records and documentation for fear of state reprisals.
And it’s happening again. It’s happening in intimate ways and personal ways, and in state-sanctioned ways, publicly. The law has a phrase which is sometimes useful: ‘chilling effect’. You target one person and it ripples out into freezing all kinds of expression and all kinds of talk. It may be a public secret. A public secret is what Michael Taussig calls something that everybody knows, but everybody knows not to say aloud. And when you reveal a public secret, very angry, sovereign gods come out of hiding. What does it mean to do justice under conditions of erasure and invisibilization?
I think last year, Arvind Narrain was here and he spoke about the Bhima Koregaon–16 case, UAPA cases. But they were targeted as individuals, not as members of a terrorist association. There was no systematic targeting of the organizations that these people represented. But now there is a terrorist conspiracy case against human rights groups doing the kind of work I’ve talked about, that is: asking for accountability for state crimes. When it’s a conspiracy case, it’s guilt by association, as you all know. Anybody who’s worked with them, victims who have given them testimony, journalists, scholars, political activists, everybody can be treated as suspect. The allegation? —the human rights documentation they’re producing is anti-national propaganda. What it does to society is that it turns it into a police state, an Orwellian dystopia where one can be interrogated about friends, colleagues and lovers, where one can be asked to betray secrets. This leads to the absolute destruction of any form of conversations, friendship and solidarity. What kind of justice is possible when friendship itself becomes impossible? People cannot come back home. PhD students haven’t come home in four or five years, journalists are being asked to surrender their passports. The compulsion is to disengage, not talk to remain silent, because the threat is so palpable and real and terrifying when the law becomes weaponized as a means of public terror.
I’ll leave you with a couple of ideas about what the possibilities are for historians, lawyers, academics and for everybody, for citizens. One is to try and call things by their rightful name, to rescue them from the law’s gravitational force field that always draws things to their lawful names, and to recognize that there’s a difference between the lawful name for something and a rightful name for something, and to pay attention to that. To always remember that slavery was legal, colonialism was legal, apartheid was legal. Just because a legal regime is in place does not mean that it is necessarily just, or that it is the final word for recognizing it as what it is. The second is to recognize justice as a kind of reckoning other than revenge. It is a means to restore, to record, the process of rescuing things from oblivion. If you read an article of Kashmir, put in on WayBack Machine. To pay attention to accounts that are local and indigenous, to take the task of record keeping as serious and political, and to ask questions of who is producing the archive because the archive produces narratives: so how do we know what we know?
I would like to share a bit from a piece I was writing, from when I had gone to Kashmir immediately after the abrogation. I thought I had gone to look at the PSA detentions underway in the High Court. But we had left our dog in Kashmir and she was really sick, and I spent all my time tending to the dog. It was a very personal emergency as well as a state of public emergency. I had to travel 30 km to meet a journalist friend in order to get the name of a medicine. That friend had been to the media centre in the evening, lined up for three hours, had internet access for 15 minutes and used that time trying to Google the name of that medicine for me.
The abrogation of Article 370 has been accompanied by many colossal warpers about its politics and history and deliberate disinformation about the consequences for legal and constitutional status of Kashmiris. In Delhi, I was outraged. Yet in Kashmir, as I struggled to write in the hotel room and as Sheroo tried to get back on her legs, much of it didn’t seem to matter, it felt all of a piece with India’s long history of lawlessness in the name of law. In the face of overwhelming ontological insecurity and terrifying state brutality, this was still when the siege was firmly in place, no one, not even the lawyer community who were not busy filing habeas corpus or bail petitions or were hiding from arrest could be bothered to pore over the niceties of how the deed was accomplished.
When I went to Jammu and Kashmir in the beginning of October, most lawyers had not even seen the notifications about the cases currently being argued in the Supreme Court. Nobody had internet. With no internet access, many lawyers I spoke to had not been able to read the full text of the two constitutional orders that altered their fate. What, after all, is a legal sleight of hand or an elaborately constructed constitutional lie when you have not spoken to your beloved daughter in over two months? Who cares if who cares if Arun Jaitley misrepresents the nature of the property rights that their daughter enjoyed under your one-time, so-called, semi-autonomous legal system? Many had not even heard that it was a thing. When I informed them, they shrugged. Yes, they said, they lie. In such circumstances, engaging with legality, especially with deep dives into the technicalities of the amendments and contestations, the suspensions and entrenchments of law run the risk of being read as an amplification and authorization of law’s awful force. Essays or writings such as these, detailing the intricate falsehoods that underlie India’s claims, legal and constitutional claims, make little sense to Kashmiris and will make no difference to their lives.
In the final reckoning, these are legitimizing narratives told at home and abroad for the gratification of those who stand or wish to be seen as standing by the laws’ promise—its ability to act as a force of enfranchisement, emancipation, equality and justice. These narratives are not for people whose government is an emergency administrative authority under military command and who must only and always suffer the traumas of law’s blunt force. In writing about law in Kashmir, I must confront my debilitating doubts about reinforcing a big, fat foundational lie that justice for Kashmiris is possible in Indian law and constitutionalism once it is stripped of its falsehoods and injustices perpetrated in its name. Nonetheless, I have persisted in the writing of these essays because I felt it vital for those of us who have the luck to be outside the direct line of fire, who can escape the permanent emergency to bear witness to the lies and lawlessness that remain the terrifying heart, animating the body of the law.
The third thing we can do, apart from keeping records and calling things by their rightful name, is to be an attached witness. Such witnessing is critical to understanding how claims about the law, democracy and constitutionalism are machines that drive normalcy in Kashmir. The normalization of a state of perpetual violence and permanent war. This is why claims about the constitutional rights of women and differential jurisdiction can be made with no reference to the martial and extraordinary laws that we would view as an act that occur in the ordinary line of duty. We would know AFSPA does not have an exception to sexual assault. It is understandable that it may have been an exception for homicide within the frame of a war, like you may kill somebody accidentally or may be responsible for a combatant’s death in an encounter, in a military engagement. But how do you explain rape being exempt, like, you accidentally raped somebody during a cordon and search? How does that happen? The extraordinary laws that view war rapes as an act that occurs in the ordinary line of duty—and those soldiers must be protected from being prosecuted for.
This is why the Indian forces didn’t only employ overwhelming military force while integrating Kashmir on 5 August 2019—it has, after all, been in effective military control of this territory for decades—it also staged a parliamentary theatre of spectacular constitutional dismemberment. Legal scholar Nasser Hussain reminds us that the writ of habeas corpus, the ultimate judicial prerogative in the aid of human levity was indispensable to the British Indian colonial regime, a regime of conquest and collective punishment. It is, he tells us, from such everyday performances and invocations of the rule of law and of democracy, from the buses filled with tourists, that sovereign authority draws its living power to enact and suspend the law. [4] In doing so it remakes and unmakes the lives of its subjects.
Question and Answer Session
Shreeja: I work in DAG museums, in their education department.We’ve created some modules for schools, in the course of which the students use artworks and images to come up with critical and creative projects. Recently, a group of students decided they want to do their project on the Kashmir issue.And what we realized through our conversations with them is that they see the activities of the armed forces as a necessary reaction to what is being propagated as ‘a security threat’. How do we have a conversation about the complex or circuit-board nature of the law or lawlessness in Kashmir? Most students have a sense that the law is righ- teous, that upholding the rule of law is supreme, no matter what that means or entails. Is there some way by which we can chip away that conviction?
Rajosmita: Hi. I am a PhD student at SOAS. Listening to you talk about emergency as a part of a continuous process, I was thinking about Charles Tilly and his equating the government to racketeers, the difference lying only in the legitimacy of their use of violence in the name of security.How would you navigate this linear trajectory between law, governance and war?
Audience Member 1: Mine is not so much a comment as it is an anecdote. I had the unique privilege of being in a hall with Bipin Rawat when he came to our university. Somehow, he agreed to entertain questions from the Law School at Jindal. He was asked about Kunan Poshpora. His answer shook everybody: he claimed that Kunan Poshpora had never happened, it was a myth and a serious conspiracy by the militants. His logic was that accusing an entire battalion of people for the crime would bring them into the court-martial arena.They would be taken away from their posts and those areas, as a result, would become free ground for militants to conduct their activities.This might be completely off- topic but that is what the Chief of Defence proclaimed in public.To this day he stands by that statement, even though there are investigations going on in court. He has even said that his men were too busy firing guns and protecting the country to be able to commit such horrific acts.
Audience Member 2: I have a question and a caveat. I will begin with the caveat.There is a fallacy between the study of law and the exercise of law. And, in a certain sense, in order for the exercise of law to be just and fair, the law sometimes does not need to be aware of the consequences of its exercise. But if we think about the parable that Kafka talks about?—we know the law knows.What I was picking up during this talk is this question of a state of exception.The state of exemption is always legally constructed and legally sustained. I was wondering if you would be willing to comment on the specific ways in which the state of exception is judicially created?
Audience Member 3: I am curious to know how you think Kashmir should be taught to children in schools when they’re between 9 to 12, when their minds are not made up?
Shrimoyee Ghosh: The state of war exists within the law, and the law contemplates its own suspension. How do we then trace this relationship between the violence that is enacted in the name of law and the normative, justice element of law? The legitimizing role of law is the state holding a monopoly over legitimate violence. That Weber quote is often construed as the state having monopoly over violence [5]. That’s not what it says. It says the state has a monopoly over legitimate violence. It’s in that legitimacy question that I think much of this contestation takes place. Is it necessary and proportional for 700,000 troops to be stationed somewhere? When you say that the armed conflict only involves, say, 200 or 300— I don’t know what the latest numbers are— armed combatants supported by an external aggressor, sure.Yes, of course the law has power and that power should secure the lives of its citizens, as well as assure certain human securities like food and shelter and so on. But when it exercises its force, does it exercise rule of law or rule by law?
The Kunan Poshpora comment has a longer history. That narrative did not come out of nowhere. Immediately after the incident, B. G. Verghese, respected and renowned liberal journalist, led a Press Commis- sion enquiry which had access to these secret files and evidence which no one else had access to until 2014. He looked at that documentation and discredited it, interviewed those women, did a proper fact-finding enquiry. It's true, it was located very close to the Line of Control and there was a hidden cache of ammuni- tion found in that village. It was on a militant route, it may have been an insurgent village, a rebellious neighbourhood. But none of that should matter. It's like the AFSPA exception for rape. What's the connection? This goes back to the first set of questions. When I say call it by its rightful name, acknowledge that there is an armed conflict. Don't simply say, 'The map is the territory. The border doesn't exist. There are infiltrators but there's no border. Yes, it is complicated, but our job as educators and teachers is also to not make something simple complicated and vice versa. It is complicated, but that's not an excuse not to engage. There's a lot of resources, there's the Kashmir Syllabus online, knowl- edge production from a Kashmir-centric point of view, there's some great fiction now, Farah Bashir's Girlhood in Kashmir is great, for older kids, Madhuri Vijay's Far Field is excellent. There are even older books like Munnu. These are the possible places to start the con- versation to understand what is everyday life like in a jurisdiction of exception. Covid is an excellent starting point to talk about emergency.
On the state of exception question, I'll refer you to a piece I wrote called 'Crisis Constitutionalism'. It's in Third World Approaches to International Law Review. It's a hyper-legal jurisdiction, right? The law is neither firmly in place nor suspended, but fragmented. It's like special classifications, special courts, special laws, special regulations, permits, passes, micro-passes, undeclared curfews, declared curfews, moving barricades. How is all that produced and sustained, as you're saying, where the exception is not outside of the law? I think that piece may give you some ideas about why I argue that it's a perpetual war and a permanent emergency in legal terms. What are the laws in place? Why is a repeal of AFSPA not a sufficient demand for justice? The soldiers are not there because of AFSPA. They have special powers because of AFSPA, but they're not deployed because of AFSPA. They exercise powers far beyond the special powers. So yes, that's what I would say.
Notes
A PDF of the entire order is available at https://bityl.co/Qf7Y (last accessed on 22 June 2024).
Shakir Mir, 'J&K: Endless Wait for Hearings in Public Safety Act Cases Agonises Detainees, Kin'. The Wire, 29 July 2023. Available online at: https://bityl.co/Qf7h (last accessed on 22 June 2024).
Essar Batool, Ifrah Butt, Munaza Rashid et. al., Do You Remember Kunan Poshpora? (New Delhi: Zubaan Books, 2016).
See Nasser Hussain, The Jurisprudence of Emergency. Colonialism and the Rule of Law (Ann Arbor, MI: University of Michigan Press, 2003).
"Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force ithin a given territory.' Max Weber, 'Politics as a Vocation' in H. H. Gerth and C. Wright Mills (eds.), From Max Weber: Essays in Sociology, translated by H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), pp. 77-128; here p. 78.
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