Commentaries/Opinion Pieces
Law, Love and Liberty: Dissecting Uttarakhand’s New Law on Live-in Relationships
Law, Love and Liberty: Dissecting Uttarakhand’s New Law on Live-in Relationships
By Bhavneet Kour and Aditya Thakur
On February 7, 2024, amidst loud chants of Jai Shree Ram and Bharat Mata Ki Jai, the Uttarakhand Legislative Assembly passed a Uniform Civil Code (UCC) without holding substantial debate or deliberation warranted by a legislation of such significance (Sharma 2023). The UCC seeks to govern and regulate laws concerning marriage and divorce, succession, and live-in relationships and is applicable to all residents irrespective of religion. However, members of Scheduled Tribes have been exempted from its purview due to constitutional protections to the community as well as political fear of encroachment in customary practices of tribals (Kumar 2024). While the government is celebrating the new law as a watershed development in advancing the cause of gender equality (Uma 2024), several women’s groups have rejected the legislation and have labelled it unconstitutional (Nigam 2024). In spite of these objections and the possibility of extraterritorial application (Ghose 2024), the UCC has received assent from the President under Article 254 and is set to be implemented across the state. More notably, states such as Rajasthan and Uttar Pradesh have valiantly claimed that they will follow Uttarakhand’s example, and the legislation is possibly a template for a nationwide UCC (Pal 2024; Matthew 2023).
While the Code has many contentious features, one of the most problematic aspects is its provisions concerning live-in relationships contained in Part III of the UCC. Section 387 of the UCC mandates the registration of all live-in relationships before a Registrar within a month, failing which punishment extending to three months imprisonment or a fine up to ten thousand rupees or both is prescribed. Not only are these provisions devoid of any rational objective or legitimate state interest, they give rise to a host of legal and constitutional issues and leave women more vulnerable than before. Rather than being a guarantor of personal and sexual autonomy, the new law is a parochial, paternalistic and patriarchal attempt at endorsing the institution of marriage, while simultaneously decrying other forms of intimate associations. By criminalising non-registration of live-ins and allowing excessive state and societal say in personal matters, the Code encourages vigilantism and essentially views live-in relationships as a public order concern. In this vein, the Code is part of a series of legislations which exemplify the law’s conflicted relationship with sexuality.
This commentary is an attempt to critically evaluate and analyse the provisions of UCC which govern live-in relationships. Firstly, the rationale behind the enactment of Part III of UCC is analysed, followed by an examination of the ambiguous definition and unclear scope of the legislation, with special reference to the issue of domestic violence. Secondly, various empirical ramifications of the code are discussed in terms of- increasing vulnerability towards honour crimes and harassment, infringement of the right to privacy under Article 21 and, a growing culture of over-criminalisation and executive encroachment in the personal realm. Finally, and most notably, the commentary seeks to establish how the Uttarakhand UCC essentially prioritises marital institution over sexual autonomy and reaffirms heteronormativity.
Evaluating the Rationale behind the Enactment of Part III of UCC
The Uttarakhand UCC is based on the report of an Expert Committee for Uniform Civil Code, which was constituted by the Uttarakhand government under the chairpersonship of Justice Ranjana Prakash Desai in order to make recommendations on personal civil law and to prepare a draft of the UCC. While this Committee recommended an entire part devoted to the regulation of live-in relationships in the Draft UCC, it is astonishing that the report barely contains any discussion on the provisions relating to live-in relationships. The Report of the Expert Committee (2013) devotes only one page to live-in relationships. The report mentions that “since there is no legal recognition according to their union, the partners in a live-in relationship go unnoticed even when they violate the law”. The report (2023, 153) then mentions that there are rising incidences of crime as a consequence of live-in relationships, and thus it has been found necessary to “keep a record of individuals involved in live-in relationships”. Such justification reveals several underlying issues.
First, while the report mentions violations of law by partners in live-in relationships, it is silent on what exactly these violations are. It should be noted that the Supreme Court, in cases such as S. Khushboo v. Kanniammal (2010), has clarified that staying in live-in relationships does not violate the law and does not amount to an offence. Second, the justification provided for compulsory registration of live-in relationships reveals that the state essentially views such relationships as a concern of public order, and the UCC is not an ameliorative legislation designed to safeguard the interests of women. Third, the overall tone in which the Report talks about live-in relationships suggests a contemptuous attitude against such relationships. This is indicated by the connections drawn between live-in relationships and crime and by using terms such as ‘keep records’ and ‘individuals involved in live-in relationships’, terms with mostly negative connotations. Lastly, while the report claims to have extensively relied on public consultations to frame its recommendations, several everal of the suggestions received regarding live-in relationships, were of regressive nature. For instance, it was suggested that live-in relationships should only be permitted for a limited time period, after which marriage should be mandatory. Although not all of these suggestions were accepted by the Expert Committee, the heavy influence of these public suggestions on the Committee’s report raises questions about the predominance of ‘public morality’ over ‘constitutional morality.’ Also, while the Expert Committee undertook specific consultations with conservative elements of society, such as religious heads and community elders, it is unclear whether youth and people who are actually in live-in relationships were also consulted before preparing a draft of the UCC.
Ambiguities in Definition and Scope
Women in live-in relationships face unique issues, such as financial dependency on their partners without commensurate maintenance obligation and lack of legal protection against domestic violence (Narayan 2021). Further, such relationships frequently generate controversy and are heavily stigmatised (Titzmann 2017). However, rather than addressing these issues, the Code does little to alleviate women’s position. The ambiguous definition of a live-in relationship under the Code makes it both overinclusive and underinclusive. Section 3(4)(b) of the UCC defines a ‘live-in relationship’ as “a relationship between a man and a woman, who cohabit in a shared household through a relationship in the nature of marriage”. While the term ‘shared household’ has been defined by the code, the phrase ‘relationship in the nature of marriage’ has not been defined. Previously, the meaning of ‘relationships in nature of marriage’ was discussed by the Supreme Court in D Veluswamy v. D Patchaimamal (2010) and Indra Sarma v. V.K.V. Sarma (2013), in the context of the Domestic Violence Act, 2005, wherein such relationships have been recognised as ‘domestic relationships’. In these judgments, the court held that only a limited number of live-in relationships which fulfilled a set criteria would be considered to be ‘relationships in nature of marriage’. This set criteria included that the couple must hold themselves out to society as being akin to spouses, they must have voluntarily cohabited for a significant period of time, and there should be a pooling of resources and adequate financial and domestic arrangements, all indicating the existence of a ‘long-standing relationship’. Consequently, it may be contended that only those cohabitations or relationships which fulfil these requirements should then fall within the ambit of the live-in relationships under the Code.
Although, the use of the phrase ‘relationship in nature of marriage’ inherently implies a long-term association, simultaneously making registration of live-in relationships mandatory within a month creates confusion about the true meaning of such relationships and about the scope of their regulation. Thus, it is possible that couples living together voluntarily, but not interested in long-term association or marriage, or ones intending to stay in a relationship without holding themselves out to society as being akin to spouses will also be covered under the ambit of the Code, with obligations of registration and maintenance, which the couple did not envisage. This leads to a situation where women who might not wish to be included under the ambit of the law will have their personal and sexual autonomy policed through provisions like compulsory registration.
On the other hand, several women in need of protection would be left out, since now maintenance rights will be hinged on mandatory registration in Uttarakhand. These include women who have cohabited with a married man for a long time and are totally dependent on their partner. Such women have already been excluded by the courts from the category of ‘relationships in nature of marriage’ and face significant disadvantages, possibly to protect the interests of the first wife (Gupta 2017). In the Indian legal system, such women are often labelled ‘adulterous’ by the courts (Indra Sarma 2013, para 63) and are denied protection on account of not falling within the contours of ‘good women’ (Ramanathan 1999). The UCC has further entrenched this position by excluding such relationships from the ambit of registration under the code as per Section 380.
The Code is also silent on the issue of domestic violence within live-in relationships. While there are no specific data regarding domestic violence faced by women in live-in relationships, data from the National Family Health Survey (NFHS-5) reveal that 30 per cent of women between ages 18-49 in India have faced physical violence, up to 6 per cent of such women have faced sexual violence, and that such violence is far more common in intimate relationships (Prasad 2023). This makes it imperative to provide for legal safeguards against domestic violence to women in live-in relationships. However, the existing position of law under the Domestic Violence Act 2005 (DV Act) is patchy; and as the judgments in Veluswamy (2010)and Indra Sarma (2013)indicate, only limited categories of relationships in the nature of marriage are given protection under the domestic violence law. The Uttarakhand legislature also has not considered this aspect in the code, and the UCC offers no clarity on whether live-in relationships which have been registered under the Code would also be considered as ‘domestic relationships’ under the DV Act (2005). In fact, Section 382 of the Code states that the registration regarding live-in relationships shall be only for the purposes of record. This indicates that the Code seeks to make little to no improvement in the position of women in registered live-in relationships.
Although in a positive development, Section 388 of the Code creates a provision which entitles the woman to claim maintenance from her live-in partner in case she is deserted by her partner, the latitude and breadth of this provision is uncertain. Section 25 of the UCC defines desertion only in reference to married couples, wherein it means abandonment or facing unique issues such as financial dependency on their partners without commensurate maintenance obligation and lack of legal protection against domestic violence, neglect without reasonable cause and without consent. Since live-in relationships can be unilaterally terminated by either partner by giving a statement of termination to the Registrar and providing a copy of the statement to the other party, the concept of desertion seems inapplicable and alien, rendering the benefits of the maintenance provision inconclusive. Concurrently, the position of women in unregistered live-in relationships may become even more precarious because they would not be entitled to maintenance under Section 388. This goes against the spirit of gender equality, professed as the guiding principle of the law. Thus, the Code is more of a lip service to the cause of women’s rights rather than an actual advancement.
Increased Vulnerability to Harassment and Honour crimes
Section 381 ofthe UCC makes it obligatory for partners in a live-in relationship within the state to submit a statement of their relationship to a concerned Registrar, who then exercises extensive powers to conduct a summary enquiry, resulting in either an issuance of a ‘relationship certificate’ or a rejection. Moreover, under Section 386, in cases where the partners fail to submit the statement of their relationship, the Registrar can require the partners to submit it within thirty days. In such cases, the Registrar can act either on his own volition or on receipt of a complaint or information. It is noteworthy here that these complaints or information can come from unconnected persons or vigilante groups who have no real interest in the existence or continuance of the live-in relationship, a more plausible reality in cases of socially despised inter-religious and inter-caste couples. This can be evidenced by numerous instances of harassment of couples around Valentine’s Day when moral policing by vigilante groups threatens free expressions of love and sexuality (Rath 2018).
The UCC emboldens almost anyone to interfere in an individual’s personal space by allowing them to complain to the registrar regarding unregistered relationships and also, by allowing them to pursue criminal cases against such couples. Even if two people of opposite genders share a joint roof, without having a romantic or sexual relationship, the authorities might intervene and call upon them to explain the exact nature of their relationship to the world at large. Whether the two people were actually in a live-in relationship would emerge later from the facts, but the individuals can still be subjected to an intrusive process where the state encroaches in their private spaces, often acting under the influence of society’s arbiters of morality.
The Uttarakhand Code’s scheme regarding live-in relationships goes against the letter and spirit of the Supreme Court’s orders in Lata Singh v. State of UP (2006) and Shakti Vahini v Union of India (2018), wherein the court recognised the right of adult individuals to consensually choose their partners as being implicit in Articles 19 and 21. The Court in Shakti Vahini also issued directions and guidelines to protect couples from honour killings and diktats of extra-legal social institutions such as khap panchayats. The Allahabad High Court, in a recent case, extended protection to live-in relationships maintaining that no person, including parents, shall be permitted to interfere in a peaceful live-in relationship (Razia v. State of Uttar Pradesh, 2023). However, the Code has the tendency to make couples more vulnerable to harassment and honour crimes. For instance, Section 385, which mandates the registrar to inform parents about the relationship in case one of the partners is less than twenty-one years old, conflicts with both the legal age of majority and age of consent, which is eighteen years at present, as per the Indian Majority Act, 1875 and the Indian Penal Code, 1860. Thus in a way, adults between the ages of 18 to 21 years become citizens with circumscribed fundamental rights, and while already fearing persecution from family and society, the state now helps to trace these non-conforming adults and bring them before the judgement of society.
The Code also increases the likelihood of harassment of inter-religious couples, which can be inferred if one examines the provision of pre-registration of live-in relationships in the context of the spate of anti-conversion and ‘love-jihad’ legislations enacted by several states, including Uttarakhand (Singh 2022). Section 380 of the UCC lists certain conditions in which live-in relationships are not to be registered. This includes relationships where the consent of either partner was defective by reason of being obtained by force, coercion, undue influence, misrepresentation or fraud of factors including identity. The registrar has been given extensive powers to verify that the relationship is not a prohibited one and in case the relationship is found impermissible or suspicious, he has to inform the local police for ‘appropriate action’. On the face of it, these provisions appear to be not only innocuous but also necessary to preserve mutual consent between the partners. However, the power of enquiring whether the relationship is permissible, coupled with space for state-legitimised vigilantism, may also be abused by further scrutiny of inter-religious couples under anti-conversion laws, making such relationships more vulnerable than ever.
Right to Privacy and Proportionality Analysis
This issue of mandatory registration raises the obvious question of encroachment into the right to privacy, which is protected by Article 21 of the Constitution. The Supreme Court in KS Puttaswamy v. Union of India (2017)held that the right to privacy is a fundamental right and that any intrusion into this right by the state must be just, fair and reasonable. Any state action which encroaches into the right to privacy would be unconstitutional, if it does not satisfy the four-fold test of proportionality. According to this test- first, the state action must be sanctioned by law; second, the proposed action must be in furtherance of a legitimate aim, and there should be no palpable or manifest arbitrariness in the aims of the law; third, the extent of interference must be proportionate to the need for such interference; and fourth, there must be procedural guarantees against abuse of such interference (Aditya AK 2018).
The Uttarakhand UCC does not satisfy this four-fold test of proportionality. First, there appears to be no clear justification for the state to invade the personal space of couples, which falls within the ‘intimate zone of privacy’ (Supriyo v. Union of India, 2022, p 165). While the Expert Committee report mentions that the law has been recommended because of the rise in crimes emanating out of live-in relationships, as “highlighted in media reports” (2024, 153), this alone cannot be a legitimate justification for this encroachment because the link between live-in relationships and crime is mostly anecdotal and shaky in evidence, and there’s no rational nexus as to how registration would stop such crimes. Second, to assess proportionality, the state should also assess possible alternatives to the measure it employs and choose the least intrusive measure. In the case of UCC, alternative measures such as increasing the capacity of the police force and ensuring a gender-just legal system would be a better alternative to control crime. Third, prescribing a hefty punishment for non-registration is an unduly harsh and disproportionate response to any possible state interest necessitating the registration. Lastly, there is a marked absence of any safeguards to protect the privacy of affected individuals. For instance, there is no stated requirement to protect the personal data of people in live-in relationships or prohibition against disclosure of such data to third parties. Thus, the Code fails to pass muster of the test of proportionality and violates fundamental rights of the couples.
Over-criminalisation and Executive encroachment in the personal sphere
The provision which makes failure to register the live-in relationships a criminal offence is reflective of the problem of over-criminalisation, wherein the State utilises the criminal law too often to address social problems that can be best combatted in other ways. According to Sara Sun Beale (2004), over-criminalisation can result in excessive unchecked discretion in enforcement authorities, potential for abuse, and misdirection of scarce resources. In the context of live-in relationships, even if there is some legitimate state interest in regulating these relationships, the use of criminal law to further regulation is unwarranted. The creation of a new social offence without prior Judicial Impact Assessment to consider the likely costs and its impact on an already overburdened judicial system is also concerning.
The involvement of police authorities in the registration process raises alarm. It appears that the state views ‘live-in relationships’ as a possible threat to social and public order. This is exemplified by the fact that the same Code makes no analogous provisions regarding the criminalisation of non-registration or mandatory information to police while dealing with marriage registrations. In a society wherein live-in relationships already face significant social stigma and partners in such relationships often face difficulty in accessing basic services such as rented accommodation (Menon 2012), the discriminatory attitude against live-ins, which underlies the Uttarakhand law, cannot be neglected.
Furthermore, extensive powers, including quasi-judicial powers, have been given to the registrar, who is an executive functionary. Notably, this seems to be part of a larger legislative trend wherein the executive is being given more powers in the realm of personal laws. For instance, a number of new laws by different states related to religious conversion and inter-religious marriages give powers to District Magistrates to enquire into such conversions and marriages, and in many cases, their approval is necessary for the marriage to be solemnised. All these developments indicate a thoughtless enlargement of powers of the executive branch to the extent that it encroaches into the personal and intimate space of the individual.
Prioritising Marital Institution over Sexual Autonomy
Feminist movements in the 1960s and 1970s contested the dominant ‘public-private’ dichotomy and declared that ‘the personal is political’ (Hanisch 2006). This meant the liberation of sexual matters from the sphere of ‘the personal’ and a repudiation of the existing notions of bourgeois sexual morality. In other words, women were to exercise choice in making decisions related to sexual matters and would contest all those structures and patriarchal practices that suppressed their sexual freedom. In a broader realm, sexual autonomy entails “the guarantee of freedom from sexual violence, coercion and discrimination, as well as control over one’s own body and over the involvement in sexual interactions with others.” (Valentiner 2021, 703)
In this context, the Uttarakhand code is an evident manifestation of limiting sexual autonomy through the legislative endorsement of ‘marital supremacy’, or the notion that marriage is the only acceptable way of leading a family life (Mayeri 2015). This raises two primary concerns. First, many scholars have offered a deconstructionist perspective on marriage which views marriage as a “meta-narrative”, which itself is a gendered idea, historically used as a means to ensure the dependency of the wife on the husband (Yadav 2016, 91). Second, this marginalises certain choices regarding family life while valuing and preferring some choices over others, and stymies the proliferation of alternative family structures (Murray 2012, 462). Such marginalisation impairs personal choices and disproportionately impacts certain people, such as the LGBTQ community.
While the UCC remains novel in giving legal recognition to live-in relationships and affirming the legitimacy of children born out of such unions, the legal status accorded to live-in relationships is far inferior. This is evident from the differential treatment of live-in relationships vis-à-vis marriage. For instance, while anyone can initiate legal action against an unregistered live-in relationship, this may be contrasted with the position in the case of offences against marriage, such as bigamy and cruelty by husband, wherein Section 219 and 220 of the Bhartiya Nagrik Suraksha Samhita, 2023 prescribe that the courts can only take cognisance of the offence on a complaint made by the aggrieved party or a person closely related to the victim. It is quite paradoxical that by not allowing third persons to intervene in these cases, the state is committed to protecting the privacy of persons in marriage, which by nature is a social institution, but does not accord similar protection to live-in relationships, which by nature were meant to be private.
This legislative approach is consistent with several other laws, such as restitution of conjugal rights, non-criminalisation of marital rape, and the recent Section 69 of the Bhartiya Nyaya Sanhita, 2023, which punishes sexual intercourse under false promises of marriage. The underlying assumption here is that ‘good women’ must perform sex within marriage and, if voluntarily, only for the purpose of marriage. These provisions, in their content and application, thus prioritise the institution of marriage over the dignity and sexual autonomy of women (Vishwanath 2023). In a similar vein, we often find judgments in which the Court is willing to acquit the accused, who, by way of a compromise, agrees to marry his victim (Gupta 2020). In such cases, what drives the court is the patriarchal notion that ‘marriage condones rape’. The social opposition to the criminalisation of marital rape and the law’s acceptance of such rape also enforces the same notion. Similarly, saying that not marrying someone makes the otherwise consensual act an offence is a backwards extension of the above notion; because the social construction behind both the arguments is the notion that ‘marriage is the only justification for sex’ or marriage legitimises sex.
Further, the Code affirms heteronormativity by limiting legal recognition to heterosexual couples and excluding LGBTQ couples. This is another setback in the road for LGBTQ rights and marriage equality. Furthermore, by only mentioning relationships between a man and a woman, the Code goes against the directions of the Supreme Court in NALSA v. Union of India (2014) and Supriyo v. Union of India (2022), wherein equal rights for transgender people were affirmed, including the right to marriage (Rajagopal 2023). While excluding same-sex and LGBTQ couples from the requirement of compulsory registration can be a blessing in disguise because they are exempted from the harsh requirements that the law imposes on heterosexual couples, there are downsides to it too. First, although the legal system is based on the principle of ‘what is not forbidden is permitted’, India’s state machinery and vigilante groups do not always take this adage seriously. Thus exclusion of such couples can also be interpreted by some to mean that the law does not permit these couples, leading to their further harassment and marginalisation. Second, the exclusion of LGBTQ does not seem to be done out of grace or as a result of oversight but appears to be a result of the state’s wilful blindness towards acknowledging the existence of the LGBTQ community.
By enforcing heteronormativity and prioritising marital supremacy over sexual autonomy, the Uttarakhand UCC offers a perfect testimony of how the law regulates sex and sexuality. Madhavi Menon, in The Law of Desire (2021), writes that “law promises official recognition if desire can be reduced from multiplicity to a specific category of identity…for instance, you are rewarded for being heterosexual and for marrying within your caste, religion, and community. If you do not abide by the constraints of hetero-sexual, binary gender, and caste and religious endogamy, then you are punished with administrative burdens…Being legally recognised also means being legally policed”. While the law has started to recognise live-in relationships, it has been heavily policed. This results in what Foucault would call the ‘production of docile bodies’ through the normalisation and legitimisation of surveillance (Bayraktar 2021, 27).
Conclusion
The new law does not seem to be driven by any legitimate state interest and is an arbitrary and unwarranted incursion in individual privacy, purely motivated by notions of popular morality. It results in the disciplining of love and is inspired by questionable state objectives. If the law intends to protect the safety and sexual rights of women, then does the question of these rights automatically dissolve as she enters the institution of marriage? If it seeks to protect the rights of children born out of wedlock, then can the registration not wait until, and in cases where the womanactually gets pregnant? If the new law posits itself as a progressive force in normalising live-in relationships, then does the associated penalisation not run the risk of state (and also society)convincingly entering the bedrooms? Therefore, the new code requires reconsideration.
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Is there such a thing as Islamic feminism? If so, does that make the Karnataka Hijab case an example of such a movement in India?
Is there such a thing as Islamic feminism? If so, does that make the Karnataka Hijab case an example of such a movement in India?
This paper examines the possibility of an ideological amalgamation of Islam and feminism. Consequently it will envision what such convergence would look like and how it differs from its occidental alternatives. Furthermore, it will use this phenomenon as a critical lens to analyze the 2022 Hijab ban judgment of the Karnataka High Court. The foundational claim of this paper is that a movement for gender equality within a repressive religious edifice is possible. This paper advances the opinion that within that religiosity, it is feasible to imagine a struggle for sexual equality through hermeneutical inquiry. The paper will begin by giving succinct definitions of what the terms refer to. It will then move on to explore the origins of such a movement. It will subsequently use this background to probe the hijab ban case. It will conclude by envisaging a way forward for such endeavors in India.
The apparent dissonance between Islamic and feminism is largely attributed to two things, prejudicial verses in the Quran and a eurocentric notion of feminism. While both are not entirely untrue, there are several other pieces of the puzzle that make it difficult for Islamic feminism as an ideological system to triumph beyond its local peripheries. Notably, commonly cited sexist verses include “Men are managers of the affairs of women because Allah has made the one superior to the other” (Sura Quran 4:34). This verse implies a clear objectification of women and in imaginingthem as creatures that need to be ‘managed’, there are underlying notions of passivity and a lack of agency. There are several other verses that liken women to slaves, sexual property and as worthy of receiving lower inheritance than their male counterparts (Sura Quran 4:34). Therefore, at the very least it can be argued that the Quran creates a binary between men and women where their roles are differentiated. Despite allusions to a sexual division of labor, it begs the question whether merely signaling a differentiation necessarily means one sex is inferior vis a vis the other. To put it simply, does allocating different duties organically lead to a system of patriarchal repression?
Before this paper begins its inquiry, it is essential to explicate the various terms that will be repeatedly mentioned in the analysis. Islam or Islamic in this paper alludes to the relationship between practicing Muslims and the religious texts that they interpret and use as a guiding force in their quotidian lives. Subsequently, feminism in this context refers to a gender equality movement that strives to secure equal rights for women. Patriarchy originally refers to “father rule/rights” (Barlas 2001)but broadly is taken to mean a system of oppression where men dominate women. These terms necessitate more detailed explanations and perhaps separate research projects in themselves but to remain within the confines of this paper, it will limit itself to the aforementioned descriptions.
Any epistemological inquiry into a polysemic text like the Quran necessitates an acknowledgement of the multitude of interpretations that inform the relevant discourse around Islam. A bulk of this exegesis is done by conservative thinkers who have decontextualized Quranic verses and the teachings of the Ahadith corpus from its time and social milieu. Eminent scholar Asma Barlas claims that
“modern patriarchy rests on the confusion of sex (biology) with its social constructions (gender) and thus also of sexual differences with gender hierarchies and inequalities. This definition can also be applied to interpret the Qur’an because (Muslim) patriarchies have reconstituted themselves and because Muslims tend to read both sets of confusions (sex with gender and difference with inequality) into the Quran’s teachings as well” (Barlas 2001, 22).
Barlas argues that traditionally, patriarchy in Christianity was seen to be advocating for God as a father figure. This gendered conception of religion has been wrongly attributed by Orientalist writers to Islam as well. This is erroneous because God in the Islamic conception is not explicitly male or female. Moreover, the problems of deracination of verses from their socio-cultural setting have rendered it to have several conflicting meanings. A worthy example is in the phrase aforementioned in this paper which pronounces men as “managers” of women. Various writers and fundamentalist thinkers like Maulana Maududi have argued that this verse confirms the superiority of the male race over the female one (Mir 1990).
However, Barlas contends that this verse refers to men as financial managers and not necessarily a manifestation of the sexual superiority of men. While it may seem like a pedantic enterprise, the point here is that the Quran was revealed at a time when women were neither encouraged to be financially independent nor were there multiple avenues for their economic prosperity. At a time like that it was incumbent upon the male member to provide for the family. A verse like this only cements that responsibility into an ecclesiastical duty so as to ensure that women were not deserted by men. Additionally, the project of arguing against a misogynistic reading of the Quran becomes tenuous when there are multiple verses that mention violence against. Yet, this brings up the familiar question about whether including a practice that exists necessarily implies a vote in its favor?
As mentioned previously, the prevailing metanarrative of Islam as being inherently misogynistic is as much a result of incorrect interpretations as it is of viewing it as a religion in the way that Christianity is seen as a religion. Unlike other Abrahamic faiths where there is an assumption of a certain degree of fixity and reliance on unanimously agreed texts, Talal Asad states that “Islam is neither a distinctive social structure nor a heterogeneous collection of beliefs, artifacts, customs, and morals. It is a tradition” (Asad 2009). It is thus inappropriate to undertake an exegesis that does not account for its inherent specificities. Asad’s conception of Islam as a discourse between the past and the present implies a need to continually engage with texts that may be ancient in origin but can perhaps be still relevant in their essence. He posits that this is what differentiates Islam from Christianity in particular. There is a constant reimagination of the past that informs the present. This is why using Christianity as a sieve to filter out oddities in Islam defeats the goal of understanding its complexities.
Moreover, since Christianity is often taken as the norm for western scholars, it is worth pointing out that at the time of its creation, Christianity and Islam treated women disparately (Asad 2009). Whereas in Christianity the burden of the ‘Original Sin’ is placed on the woman and she is supposed to have a detrimental effect on the man, Islam believes a unified Self was responsible for the creation of the world. At the outset, there is no power imbalance between men and women. Additionally, there are several biblical references advocating for women as homemakers while men should be the earning members. This conception of the ideal family is not only still prevalent but often valorised and glorified by conservative political parties. By contrast sexual differences in the Quran are seen to be implicitly patriarchal. The point here is not that one is proper while the other is not but rather to understand the role of media narratives and occidental writings in promoting a particular vision vis a vis another. Coupled with the popularization of fundamentalist clerics, such often erroneous interpretations form the dominant discourse.
Writers like Barlas and Wadud also trace this androcentric understanding of Islam to the Ahadith corpus (Asad 2009). They argue that since a bulk of these hadiths were disputed and dependent on other scholars and clerics, there was widespread misinformation about the intended learnings of the Prophet. These narratives gradually immersed themselves into the collective conscience of Muslims thereby perpetuating this rhetoric of masculine superiority. Wadud asserts, “No method of Qur’anic exegesis is fully objective. Each exegete makes some subjective choices. Some details of their interpretations reflect their subjective choices and not necessarily the intent of the text”(Jawad 2003, 125). Wadud draws from Fazlur Rahman’s method of studying the Quran as a work in progress that was revealed periodically and therefore demands a staggered approach to its interpretation.
Now that the paper has provided a background of what it means to locate gender inequality in Islam it will now move on to assess the nuances of a distinctly ‘Islamic’ feminism. To categorize a distinctly Islamic feminism, it is essential to clarify what it must be distinct from. Much of the discourse around feminism refers to a eurocentric western version of feminism where the goal of gender equality is devoid of any intersectionality (Seedat 2013). This brand of feminism does not consider the complexities posed by identity which are as much a barrier to gender equality as they are to social mobility. The hegemonic nature of eurocentric feminism is in many ways akin to the white man’s savior complex. Both want to save the third-world woman without knowing who she is. There is a universalizing attempt to create a monolithic identity of the post-colonial woman without including any of the social cleavages such as caste, class, religion and ethnicity which are active contributors to their oppression (Mohanty 2003). Although the Third Wave of Feminism tried to erase the homogenizing efforts of liberal feminists, they were still unable to offer an inclusive struggle that did not champion a singular lived experience.
Fatima Seedat attributes this to the difficulty in cultural translation (Mohanty 2003). She claims that much like Gayatri Spivak had theorized in her seminal work on subaltern studies, European intellectual tradition is simply incapable of translating or communicating oriental lived experiences into their own. To put it simply, by traversing geographies, it should ideally become easier to tell the stories of women to other women, but the dominance of eurocentric ideas of history and culture render it impossible to fit these struggles into an identifiable mold. Seedat states that, “the danger of associating modernity with European ways of being is the consequent devaluing of other, non-European ways of being. In other words, non-European ways of being are required to align with European ones and European intellectual traditions are posited as necessary points of reference for viable ways of being modern” (Seedat 2013, 29). As a result of this, the post-colonial subject finds themselves trying to fit themselves into a narrative that was not meant for them in the first place. Much like the protagonist of Fanon’s Black Skin White Masks who after years of subjugation tries to act like his oppressor as a result of cultural alienation (Fanon 1952) women in the Third World have consistently tried to tell their stories in the language of their oppressors which have ultimately been detrimental to their cause. This is where Islamic feminism becomes relevant.
Islamic feminism is thus not a movement in the way that white liberal feminism is. It is buttressed on religious texts and practices. Its aim is to constitute a struggle that draws its strength from religious texts and fights against their immediate repressors. In her work on women reclaiming Islam, Miriam Cooke writes,“to call oneself an Islamic feminist is not to describe a fixed identity but to create a new, contingent subject position” (Cooke 2000, 93). The basic premise of this unique positionality is that Islam is as patriarchal as any other historical belief system. But within these oppressive structures, women need to carve out their own spaces that give them agency. A significant chunk of this movement is a feminist reading of the Quran. Started by Aishah ‘Abd al-Rahman in Morocco in the mid 1900s and continued by prominent contemporary Islamic academics like Amina Wadud, Zaynab al-Ghazali and Heba Ezzat, a feminist reading of the Quran that takes a historical approach is the key to universalizing Muslim women’s struggles (Jawad 2003). This critical assessment of religious texts also involves questioning the relevance of traditional practices. A culturally contentious one being the hijab or purdah.
Seen as a symbol of oppression in western societies, the purdah means different things to different Muslim women. In her book Politics of Piety, Saba Mahmood asserts that what is seen as the face of resistance against religious oppression in the west, the veil symbolizes a form of virtue for Egyptian women (Mahmood 2005). Mahmood argues that the veil or hijab is a bearer of modesty. To wear it is to attain the virtue of true modesty. In this case, if modesty is seen as a value then wearing the veil is its corporal form. It is an active exercise of agency to wear it. In much of the western world, conversations around gender equality and secularization have xenophobic undertones where wearing a veil is seen as being especially backward or regressive. But as Mahmood shows through her ethnographic study, wearing the veil is not necessarily performative for the Egyptian woman. In Judith Butler’s theorization, it is not that the female subject feels pressured to perform in a certain socially acceptable way to sustain her femininity (Mahmood 2005). But rather, wearing the veil is very much a personal decision linked to the formation of her own identity. It is not a socially constructed barrier but an internally cultivated practice. In a similar vein, the struggle for individual freedom of expression linked to a seemingly regressive religious practice is at the forefront of the Karnataka hijab case (2022). This paper will examine the Hijab ban case (Aishat Shifa vs The State Of Karnataka 2022) in Karnataka in light of the background provided in earlier sections of this paper. In December 2021, a few Muslim girls in Udupi were denied entry into a classroom because they were wearing a hijab. As the dissent against the restriction grew to other educational institutions, the state of Karnataka passed an order that allowed educational institutions to enforce a discretionary dress code that does not threaten unity, equality and public order. This arbitrary ban was challenged before the Karnataka High Court on grounds of violating freedom of religion, freedom of speech and expression, freedom from discrimination and the right to life1.The three judge bench of the Karnataka High Court upheld the ban by claiming that wearing the hijab was not an “Essential Religious Practice” and fundamental rights were subject to reasonable restrictions such as public order and morality. This judgment was problematic for several reasons. The paper delves into why the reasoning adopted in this judgment is not only dangerous for a secular country but detrimental to the ideas of justice and fairness enshrined in the law.
To begin with, the Essential Practices Test referenced in this judgment refers to a discretionary test devised in the Shirur Mutt case in 1954 where the Court claimed that “what constitutes the essential parts of a religion is primarily to be ascertained with references to the doctrines of that religion itself”.2This test was a legal mechanism by which courts were empowered to decide what fell within the ambit of an ‘essential’ part of religion. Moreover, by defining essentiality as being dependent upon doctrines, the Court had used a Protestant Christianity as the reference point. This is because Hinduism is not a doctrinal religion while Islam and Christianity are (Smith 1990). Therefore, to conceive of a religion as a rigid set of practices and rules is to deny that religion its inherent multiplicity. Even in the aforementioned judgment of the Shirur Mutt case (1954), a Vedantic form of Hinduism which saw true religion as being purely metaphysical and devoid of outward displays was taken to be the norm and therefore rituals and public practices were considered to be inessential. Furthermore, by creating this arbitrary test where a bench was allowed to decide what practice is significant to a faith, it had left the individual out. The individual member of a religious group had no space to reasonably argue what a particular practice could mean to them if there was no doctrinal evidence for it. Like in Saba Mahmood’s research on Egyptian women (2011) who wore the veil as a symbol of modesty, practices may signify different things for different people but subjecting it to a test of recorded history not only devalues the practice but denies the individual a right to their inner conscience.
In the Hijab ban case, the Karnataka High Court argued that the classroom is a qualified public space and therefore it can be subject to reasonable restrictions. The judges also cited Asha Renjan and others v/s State of Bihar and others3 to argue that when there is a conflict between individual rights and public interest, the former must acquiesce to the latter.4 This sets a dangerous precedent for various reasons. Primarily, to subjugate individual rights in the interest of the larger public must necessarily show that there are justifiable grounds to do so. Moreover, applying the precedent in this case would mean that Muslim girls who also constitute a “public” are subservient to the other public i.e. the state. This naturally brings up concerns about the Article 25 rights of the petitioners which confers upon them the right to :
Freedom of conscience and free profession, practice and propagation of religion Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus (Article 25 of the Indian Constitution).
As per this, unless the state is able to show that there is significant damage to public order, health or morality by the use of a hijab, there is no sufficient cause to impose a ban on it. However, this is where the issue gets complicated. In the Karnataka High Court judgment, the court claims, “provisions show that the mandate of the statute is to renounce sectional diversities, to develop humanism and to cultivate scientific and secular outlook. The sectarian approach that certain students will carry their religious beliefs to secular schools run by the State would be antithesis of the mandate of the statute” (Article 25 of the Indian Constitution). The court is effectively trying to argue that an outward display of religiosity is a case against secularism. This would seem well-intentioned if the locus of the conflict was not in India. By that I mean, Indian secularism is different from the strict separation of church and state model that is followed by countries such as the United States and France. Indian secularism is interventionist by nature. The Constitution itself allows the state to intervene in religious affairs. It follows what has been termed as a “principled distance”by Rajeev Bhargava (2013, 79-92). The Indian model of secularism accommodates the public performance of religion. Therefore, the court’s iteration of a possible damage to secularism by an outward display of religion seems out of place in society where schools indulge in lamp-making for Diwali and nativity plays for Christmas. Moreover this judgment goes against the doctrine of proportionality enshrined in the law whereby the punishment has to be proportional to the alleged crime. There must be other ways to cultivate a sectarian outlook that do not involve the violation of an individual’s fundamental rights. Furthermore by renouncing the hijab as not being an essential religious practice, the court has deprived the petitioners of their agency and freedom of choice.
This judgment was further appealed in the Supreme Court which delivered a split verdict on the issue. Justice Hemant Gupta in agreement with the Karnataka High Court argued that by virtue of a classroom being a qualified public space, there was a need to ensure uniformity and discipline. His views on the matter highlight a cavalier reluctance to accept the petitioner’s freedom of conscience. It is however the dissenting judgment of Justice Dhulia that offers a novel way forward. Side-stepping the Essential Religious Practice issue and instead making this a Right to Education (RTE) problem, Justice Dhulia stated that by banning these women from entering the classroom, the state was effectively denying them education. To disallow a student to enter a class was tantamount to the violation of the RTE Act. Moreover, it is a violation of the freedom of conscience as upheld in the Bijoe Emmanuel case (1986).
Both the judgments offer interesting ways to analyze this case. Primarily, a woman’s desire to wear a hijab against a state that considers it derogatory is in itself the operationalisation of Islamic feminism. To argue this case in court is a step forward in that direction. Furthermore, as much as this case is about religious freedom and personal choice it is also about reasonable accommodation. The principle of reasonable accommodation demands that the state has to find the least violative mechanism possible to enforce a particular law or rule. If the goal is to achieve uniformity, there must be alternatives that uphold constitutionally guaranteed rights. Additionally, this paper believes that by framing the question as one of religious freedom, the petitioners made themselves vulnerable to the ERP test which ultimately went against them.
Several daily rituals have gained prominence as cultural practices through oral history, shared traditions etc. such as pouring water in the praise of the sun god. Not all of them can be defended on the grounds of essentiality. It is perhaps wiser to argue the case as one of a violation of privacy and dignity, both of which have been read into Article 21 by the Supreme Court on various occasions and are harder to refute on arbitrary grounds.
This paper began by introducing the idea of Islamic feminism. Subsequently it analyzed the Karnataka Hijab case. While there is no resolution to the issue since the Supreme Court delivered a split verdict, it still offers many lessons. One of which is the need to make the law a facilitator of agency and not the roadblock in its exercise. Wearing a hijab can be repressive for some and empowering for others. But real empowerment lies in restoring the ability to make a choice. By using repressive government orders and arbitrary jurisprudential tests, the state has failed women. There are no rights for the community if the rights of individuals within those communities are not upheld. The Indian socio-political imaginary intrinsically views religion as a public performance. It does not yield to the Protestant Christian idea of a schism between belief and practice. To create an ERP test is to strip religion off of its essence. As this paper has discussed previously, religion signifies different things to others. Even within that oppression, there are groups such as women who are re-imagining their relationship with their faith to achieve gender equality. They do not need another oppressive structure i.e. the state to stand in the way of that fight.
References:
Asad, T. “The Idea of an Anthropology of Islam” Qui Parle 17, No. 2 (2009): 1-30 https://doi.org/10.5250/quiparle.17.2.1
Barlas, A. “The Qur’an and Hermeneutics: Reading the Qur’an’s Opposition to Patriarchy”, Journal of Qur’anic Studies 3, No. 2(2001):15-38 https://doi.org/10.3366/jqs.2001.3.2.15
Fanón, Frantz. Black Skin, White Masks. Translated from French by Richard Philcox. Grove Press, 2008.
Mahmood, Saba. Politics of Piety: The Islamic Revival and the Feminist Subject. Revised Edition. Princeton University Press, 2011.
Mir, Mustansir. Review of Towards Understanding the Qur’an Translation of Mawdudi’s Tafhim Al-Qur’an, by Zafar Ishaq Ansari. American Journal of Islam and Society 7, No. 2 (1990): 257-258. https://doi.org/10.35632/ajis.v7i2.2794
Mohanty, Chandra Talpade. “‘Under Western Eyes’ Revisited: Feminist Solidarity through Anticapitalist Struggles.” Journal of Women in Culture and Society 28, No. 2(2003): https://doi.org/10.1086/342914
Jawad, Haifaa. “Muslim Feminism: A Case Study of Amina Wadud’s ‘Qur’an and Woman.’” Islamic Studies 42, No. 1(2003): 107-125.
Seedat F, “Islam, Feminism, and Islamic Feminism: Between Inadequacy and Inevitability.” Journal of Feminist Studies in Religion 29, No. 2(2013): 25-45. https://doi.org/10.2979/jfemistudreli.29.2.25
Cooke, Miriam. Women Claim Islam: Creating Islamic Feminism through Literature. Routledge, 2000.
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A Qualitative Analysis of Torture: The Crude Case of Khairlanji Murders
A Qualitative Analysis of Torture: The Crude Case of Khairlanji Murders
By Bilal Khan
Introduction
The debate about human rights and torture forced diplomats around the world in 1984 to combine their expertise in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In the Convention, the House invoked articles 5 and 7 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), respectively, to concretise a linkage of violation of human rights to the case of torture (United Nations 1984). Given that both of these articles dealt with inalienable human rights and dignity, the question of torture, thereby is tied to the state criminalising it. Despite the convention, there is experiential and empirical data to back the torture and inhumane cruelty faced by a large number of people (Amnesty International 2003; Einolf 2007; Asian Human Rights Commission).
Providing a modular mechanism, the United Nations General Assembly un/intentionally initiated a discourse that was so transparent and so stringent that it could not possibly provide the world with the apt rationalisation of events of mass torture like the case of Abu Ghraib and the Guantanamo Bay. The commentary attempts to analyse the concept of torture in two ways. First, it would provide a philosophical overview of torture: what amounts to torture and what makes it a particularly heinous crime usually perpetuated by the state? Through a combination of statistical data available to the public, alongside a case study of the Khairlanji Murders, the essay aims to form a deeper understanding of torture which is a well-documented lacuna in the legal episteme of both international and Indian law, where the latter has no legislation whatsoever to account for torture. The commentary is thereby an attempt to fill this gap by looking at the increasing violence against the Dalits even after the inclusion of the Prevention of Atrocities (PoA) Act 1989.
Philosophical Underpinnings
The standard definition given by the United Nations Convention against Torture of 1984 stands as:
The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In Understanding Torture (2010), Wisnewski has looked at the idea of torture and the various ethical debates around the practice of torture. For Wisnewski, torture can be categorised into six overlapping kinds. These kinds are namely, judicial, punitive, interrogational, dehumanising, terroristic/deterrent and sadistic. Through such categorisations, he seeks to analyse torture on historical and psychological grounds giving a way to understand the effects torture has on its victims (Wisnewski 2010, 7-8).
Due to this dual analysis, Wisnewski stands firmly against strict distinctions like ‘psychological’ and ‘physiological’ torture. Such distinction, according to him, usually renders one or the other to be ‘more’ horrifying. However he also argues that torture cannot be restricted to either psychological or physical forms. It is a ‘combination’ of both of them. Hence, the author notes the importance of looking at torture as a “product of particular interests” (Wisnewski 2010, 11).
Moving on from these semantic and legal distinctions, one needs to ponder upon the unique severity of torture. For this, Wisnewski discusses how it is an axiom almost to condemn torture, yet it happens in the cases of exceptions. These ‘exceptions’ are basically loopholes found within the definitions of torture granted by international bodies like the UN.
As mentioned earlier the UN defines an act as torture only when it is committed by any public official. But, as Wisnewski (2010) and Christopher J. Einolf (2007) rightly point out, the definition is reductionist as it leaves out important discussions on torture. Wisnewski views the definition and other legal definitions of torture as inadequate both on historical and philosophical grounds. On historical grounds, the “divergent” contexts in which torture has been deployed does not fall under a set definition. One example can be the case under study- The Khairlanji Murders in 2006. The event relate to the lynching of four members of a Dalit family in Maharashtra at a small Indian village of Khairlanji (Kherlanji), located in the Bhandara district of the state of Maharashtra. The events of Khairlanji unfolded in a manner which was aided by public authorities and then committed by individuals of the dominating caste. The police first arrested the twelve accused members of the Atilkar household only to be bailed out and released later (Teltumbde 2010, 99). The atrocity that later took place was through direct negligence of the state, but was finally committed by the caste Hindus of the village. Here, a definition that standardises torture stands inadequate.
Einolf also argues that the standard definition of torture is impinged upon Western and modern laws of morality, and motives cannot account for a valuable historical study. Apart from historical grounds, on philosophical grounds too, this definition could become too inclusive . For instance, an agent of the state can be a school teacher who is punishing a child, thereby inflicting intentional pain on them which is not lawfully sanctioned. Even though this could have dire consequences, for Wisnewski, these examples are a far cry from torture committed by the police or the military. It can be argued that Wisnewski’s understanding of torture is too stringent and exclusionary but that is precisely his point. He wants to understand the severity of torture and its ontological uniqueness in the human world. For him, a focus on the ‘wrong-making’ features of the torture should be revised. Something makes torture wrong; it is the nature of the act that is usually misinterpreted according to him.
In analysing ‘torture’, the first argument Wisnewski presents is against the idea of ‘pain’ as the central point of torture. Through the act of torture, pain is inflicted on the body in multiple ways. The body goes through multiple levels of pain for different reasons. The act of piercing can be a painful experience. But the difference between this pain and the pain experienced by a tortured victim is the lack of consent. Wisnewski explains how masochism and religion are activities where pain is literally ‘sought out’ to constitute a sacrificial act. But as he rightly points out, the act itself remains immoral (at least to societal standards). Shiite Muslims performing matam or lamentation during Muharram is one such sacrificial act. The pain in this act of mourning is sought-out yet it does not make the act itself justifiable in other contexts. It is the logic of lamenting the martyrdom of Husayn ibn Ali that makes it consensual, but the very act remains that of self-harm.
The consent given by the masochist to the torturer in these acts does not change the very nature of the acts themselves, it must remain a taboo. This makes a complex situation of different kinds of pain based on how one perceives that pain. In the examples cited by Wisnewski, pain becomes an event of interpretation which leads him to use the word ‘suffering’ instead of pain. Suffering gives the connotation of ‘un-wilfulness’ of the activity making it a more appropriate candidate for being the central point for torture. Wisnewski’s movement from pain to suffering reflects his ontological displacement from the phenomenological one. In other words, when Sara Ahmed (2004) discusses pain, there is a critical phenomenological focus on it. For her, pain must be understood in its ‘affectiveness’ and not in its effect. The affect of pain is connected to the formation of the Freudian ego where the very understanding of the self is achieved through negative impressions from outside the body. Arguably, pain then becomes a necessary sensation of one’s life which is always experienced in relation to something else; it can be wilful or un-wilful. This necessity of pain in one’s life is also pronounced by Wisnewski, and it is for this reason he found it inadequate for torture to be defined through pain.
After debunking the arguments for pain, Wisnewski problematises the argument of autonomy which has already been discussed to some extent in the arena of pain. He pushes the argument that considering torture’s wrong-making core to be a violation of autonomy is inadequate as the autonomy of a human within the state is always hindered at different levels. He gives the example of imprisonment and questions the reader if they can conflate torture and imprisonment. Here, the author is not situating that imprisonment cannot entail torture, but the act of torture does not necessarily entail imprisonment or a disregard for an individual’s autonomy. Also, imprisonment is not as vehemently opposed to torture in the international legal discourse.
If pain and autonomy both fall short of constituting the wrongness of torture, then what stands at the centre of the experience? For Wisnewski, it is the violation of agency that makes torture, torture. Now, the difference between agency and autonomy is that agency is formed by sociocultural elements while autonomy is an individualistic paradigm. The word “dismantle” is being used by Wisnewski (Wisnewski 2010, 64). The pain that is inflicted for the very ‘intention’ to utterly annihilate someone’s agency lies at the core of torture. Pain takes over the subject. Such pain is etched onto the body and the psyche of the victim through taking away things that make someone human, i.e., culture. The same “artifacts of culture” that make the victim a subject in their surroundings, are used to destroy the imagined world of the victim. The process is marked by the absolute destruction of language comprehension as well. These kinds of effects render the victim languageless and traumatised even after they have survived the process. Their context is taken away from them by the torturer. Only through a repetitive, “over-representation” of this event can the victim then re-imagine their world (Ahmed 2004, 22).
This sums up the focal point of torture for Wisnewski. Beyond this ontological approach, torture can also be understood from the perspective of the persistence of abhorrent crimes in civilised society; for example, Hilary Neroni’s account of torture that places the conversation in rather unconventional yet important waters. Her book, The Subject of Torture (2014), attempts to present a rationale for the obsessive representations of torture in movies and television in the case of America. Neroni’s discussion of torture also starts with Abu Ghraib but takes an interesting turn when she points out the overtly sexual nature of the torture inflicted upon the victims.
The argument is rather worrying but not shocking. The sexual enjoyment that is the main feature of disgust in the Abu Ghraib photographs brings into question the legitimacy of torture even for the torturer. Joanna Bourke (2004) was one of the first scholars who pointed out the pornographic nature of these photographs and theorised that the photos have a ‘carnivalesque’ essence to them. This brings back the question of the legal definition of torture given by the UN or even the Red Cross–the more individualistic definition in comparison to the earlier cited UN variation. Both of these definitions mention no instance of sexual pleasure or even enjoyment involved in the act of torture. Neroni further notes how Wisnewski started the conversation by pointing out that torture defined by the likes of Marques de Sade could never be included in the legal definition of torture.
The point being made is that pleasure in inflicting pain renders torture ineffectual. The efficiency of torture depends upon a hidden truth that can be brought out in the open through inflicting pain on the body. This undermines the mind of the victim completely, as the truth lies in the body alone. Neroni states that the emergence and exaggeration of the body over the mind argument arose as a reaction to Cartesian dualism and German Idealism. For her, this is a particular failure brought out by theories of biopolitics that privilege the body above the mind (Neroni 2014, 11) and that is why she deems psychoanalysis to be a better and more adept theory to deal with it.
Through psychoanalysis, the reason to abandon torture takes a more utilitarian stance than a moralistic one. The rationale to justify torture sediments at the belief that after extreme pain is delivered to the tortured victim now reduced to a body, they will reveal priori unknown truth. But the tortured subject is not a vessel of truth trying to survive, but a desiring subject that will not keep their survival as a priority. Therefore, the logic collapses and the information procured from this subject cannot be trusted. The very rationale for dehumanising the subject is a fantasy at best, that is always rendered impossible.
Psychoanalysis is a form of collision between the mind and the body. Neither of them is lesser. The desired subject is irreducible to mind or body Most of the media representations (mainly of military torture in cinema) of torture depict how it leads to the ultimate solution to a crisis, but on the other hand, psychoanalysis suggests that in reality torture is highly inefficient. If the information, truth and violence equation is not the conclusive goal of torture then what is? Neroni argues that all torture became was a tool of deterrence, a symbol of power.
Taking into consideration arguments given by Wisnewski and Neroni, it has to be stated that torture has to be understood and ontologised very differently than what the current legal language allows. From being connected to Sade’s work to an increase in torture porn cinema in Hollywood from the early 2000s to 2010s where Eli Roth’s Hostel (2005) and James Wan’s Saw (2004) emerged as important names, torture has an inherent sexual angle to it. The voyeuristic photographs of Abu Ghraib confirm this conclusion.
Contextualising Torture as an ‘Atrocity’
Background and Data
In the case of international law, public authorities are the focus of concern when it comes to torture. In a context of a country, a country-specific approach is needed to understand the stance of the said country on torture. In the case of India, there exists no law within the jurisdiction that supports legislation uniquely designed to deal with torture. Be it the pending Prevention of Torture Bill 2017 or India’s reluctance to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the stance has been that of ambiguity and a consistent lack of substance (Nair 2022). However, an absence in the legislative body does not rule out the existence of torture in India. In fact, in 1855 the British government compiled a report of custodial torture being deployed by the East India Company native officers. The colonial report was called the Torture Commission Report of 1855, commissioned by the Madras government. But the problem is that it is the last of its kind. Upendra Baxi looking at the report given by Amnesty International in 1973 commented that “custodial violence or torture is an integral part of police operations in India” (Bhuwania 2009, 8).
However, the scholarship surrounding torture in India encapsulates the same lacuna the UN definition also presented: it only focused itself on public authorities and state agents. The socio-cultural paradigm of India suffers from another larger systemic evil which is the caste system. Parthasarathi Muthukkaruppan (2017) argued that the relationship of caste is constantly reproduced by three kinds of violence: (a) large-scale visible violence, (b) structural violence, and (c) symbolic violence. Any understanding of caste, according to him, is inadequate without theorising violence, as caste and violence both share the structural model of relationship . Therefore, in the Indian context, the case of atrocities against the Dalits and Scheduled Tribes is, by and large, one of the most important issues to be discussed to understand socially sanctioned torture. The umbrella term ‘atrocity’ usually encapsulates quite a lot of heinous crimes including rape, arson, mass murder and gang rape. The concept of ‘torture’ in its legally defined understanding cannot be found in the laws against atrocities. It is also noticeable that the word ‘atrocity’ has to be included directly in the law itself to understand and take into account the range of extremely violent crimes committed against the Scheduled Castes and Scheduled Tribes.
In 1955, the Indian Government amended the Untouchability (Offences) Act, later renamed Protection of Civil Rights (PCR) Act in 1976 ;While renaming made the Act (1976) more inclusive of encompassing the citizens, a hike in atrocities against SCs and STs was observed . To understand the severity of this flaring up, Krishnan mentions a total of 30 incidents that happened from 1968 to 2006 (Krishanan 2009, 12-14). All of these incidents are atrocities and involve groups of victims and perpetrators instead of any one individual. From this sudden increase in the number of atrocities, one can assume it had something to do with the PCR Act (1976). An argument can be made that through PCR and land reforms, Dalits and STs considered themselves as equal citizens of India. The ‘re-humanisation’ of a class of people who were severely ‘dehumanised’ for centuries and the existence of thinkers like Dr B.R. Ambedkar was met with India-wide resistance from the upper castes. Hence, the hike in strategic atrocities being committed against the Dalit community led to the formation of the Prevention of Atrocity (PoA) Act in 1989 which was finally implemented in 1995.
The act was particularly devised to monitor caste violence on SCs and STs but after three decades of implementation, the statistics are rather saddening. G. C. Pal (2020) notes that from 1995 to 2015 annual average of crimes noted against SCs and STs was 31,939 out of which the annual average for atrocities was 12,928. So, 40% of total crimes that have been committed against SCs and STs can be deemed as atrocities under the PoA Act (1989). Another worrying factor is the growth rate of PoA identifiable crimes, which is 5.2% . With such huge numbers, the implementation of PoA Act (1989) remains a flawed cog in the wheel. A whopping 80% of cases remain pending in trial courts, and the special courts under the PoA do very little to improve these numbers. Krishnan, back in 2009, also noted that of total cases that have been successfully reported, only 1-2% result in actual acquittal. There is an obscene difference between the cases that are registered and the ones that are convicted. This difference creates another problem for PoAAct (1989), where most of the cases are not seen through the lens of discrimination or incompetence by police personnel but through the casteist lens of ‘misusing’ the law. Although this argument does not stand as an official FIR under the PoA Act (1989), this leads to social consequences of which Khairlanji is a potent example.
These numbers also get highly gendered as well. Given the crucial nature of sexualised violence in the case of Dalit women, it is indeed dire to disaggregate the data on gender lines. Pal inquired about the facts provided by All India Dalit Mahila Adhikar Manch (AIDMAM) -NCDHR in 2018 where he found that ‘composite violence’ is inflicted on Dalit women. The recent fact sheet published by the organisation shows worrying details. Out of the 50,879 cases registered under PoA Act (1989) in 2021, 15,855 are alone on women and minor girls (AIDMAM-NCDHR 2022). A very noticeable hike of 11.5% is observed from 2020 in atrocities specifically against Dalit women. Another growth rate observed is in rape charges which is 14.7% since 2020. The data itself shows the gendered nature of the atrocities. The rate of acquittal also remains the same from 2020-2021. Out of 17,322, only 592 cases ended up in acquittal. A shocking 94.5% remains pending.
In all of these accounts what is visibly lacking is the quantified account of human life. Any and every case of atrocity is not the same. The individual differences and the degrees of brutality these cases have, can never be understood merely through a quantitative account. It is maybe this particular reason that Krishnan mislabels Khairlanji as a case of atrocity occurring in the wake of land disputes and not Dalits asserting their presence. A qualitative analysis can show otherwise.
The Khairlanji Murders: A Case Study
As has been established, torture is not criminalised in law as a separate or special offence in Indian laws. Within the PoA Act (1989), atrocities cover a range of crimes committed against the Scheduled Castes but the word ‘torture’ appears nowhere. The Khairlanji incident of 2006 saw different heinous atrocities, but none of them could be named torture as it is not recognised by the state. This makes the Khairlaji incident partly a state-sponsored crime, for not recognising torture, even though the real perpetrators were the Atilkars. The acts of violence at Khairlanji were atrocious in their appearance, yet they were torturous in their function. One can argue that this absence is not accidental but rather a repressed reality. If the Bharatiya Nyaya Sanhita criminalises torture (be it state-sponsored or non-state-sponsored), it runs the risk of coming under scrutiny on an international level. Not all atrocities can be deemed as torturous, but the ones that are outrightly sadistic, and are specially drawn out to make a statement, should be legalised as torture. Albeit this is necessary, a complete dependence on international legal definitions of torture could only lead to problems already discussed in the essay. Therefore, at this juncture, a qualitative analysis of the Khairlanji Murders could provide an initial step towards a ‘glocal’ understanding of caste-based torture.
Anand Teltumbde’s seminal work, The Persistence of Caste: The Khairlanji Murders and India’s Hidden Apartheid (2010) discusses the horrifying atrocity that took place in Khairlanji in 2006. Given the year in which it took place, Teltumbde was almost forced to theorise or enquire about the persistence of caste in Indian society. Unlike earlier accounts of atrocities, Teltumbde also discussed the gradual decline of Dalit movements during the 1970s-80s. For him, this was a crucial reason for the atrocities to rise. But a significant detail that Teltumbde identifies is that crimes which were the norm before acts like PoA (1989) were now criminalised. A part of the upper castes’ culture was taken away from them, and a ‘loss’ of an essential fundamental right was observed. Indeed, only after Dalits resisted in rural areas which was by and large an assertion of equality, the reason to commit atrocities changed altogether—vengeance became central. Here, the line between torture and atrocities is again blurred as an assertion of symbolic power through violence becomes the centre point of the crime. Teltumbde himself asserts multiple times that torture was deployed as a means of sending a message to the Bhotmange family, whose members were murdered.
The event of Khairlanji is also unique because it was the Shudras or the OBCs who committed the atrocity. Due to the land reforms that were established after Independence, the peasant classes who belonged to the Shudra fold became overwhelmingly the landowning class (Krishnan 2009, 8; Teltumbde 2010, 46). As superficial as it is, for Teltumbde and Krishnan this is a shift from the religious and traditional system of the varna folds. This structural change in class formations gave the governmentally classified Backward Classes social mobilisation. As already stated, the post-1960s is the marker of the rise in Dalit atrocities, but this also marks the rise of Backward Classes and their direct involvement in committing caste atrocities. A village with 787 inhabitants out of which 720 were from the OBC community. Merely three Dalit families existed in the village out of which Bhotmange was one. The importance of these figures explains an uneasy absence of Brahmins or Kshatriyas who are perceived as the main propagators of casteist violence. Teltumbde questions this perception as that which sees Brahminism confined to the Brahmin. Here, the grasp of the Brahmanical instead of the Brahmin is visible.
Structural violence is a structural condition by which everything appears normal and peaceful. But the condition is such that crimination, exclusion, unwanted inclusion, degradation and humiliation are possibilities written into the very structure of the condition. The way violence works in the structure is subtle and is like an invisible grid. The symbolic violence that works and makes the structure appear normal and legitimate through the language, representation and discourses constitute the symbol field (Muthukkaruppan 2017).
Arguably then, the act of the Atilkar households is being justified by the very structure of the caste system. Structural violence normalises discrimination in the caste relationship. In India, no outright justification is needed to create legally ostracised individuals or communities on whom torture is justified, as Dalits within the caste system already hold the place of ‘outcastes’. The unholy truth of Indian society (be it judiciary or socio-cultural) is that it is unable to detach itself from the caste system and its pride due to this systemic structure functioning through symbolic prowess. Traditionally, no matter how low shudras are in the varna fold, they are still superior to Dalits. Politically, the newly acquired social class of landowners would still benefit from the peasant classes which now consisted mainly of Dalits and sometimes forcibly of STs. It was indeed this superiority that led to the increase of disputes between the Bhotmange and the Atilkar households.
The Bhotmanges themselves were a well-off family in the sense that they were not starving daily. Bhaiyalal and Surekha Bhotmange had three children between them. Surekha was an “archetypal Ambedkarite woman”, a woman who would not back down against the OBCs and replied to them with equivalent anger. Apart from this family, Surekha’s cousins Siddharth Gajbhiye and Rajendra Gajbhiye also bore reasons of hatred towards them. The resistance Surekha showed, the support Bhaiyalal and the Gajbhiye brothers lent her and the Sisyphean quest to educate their children, presents a different story than just ‘land dispute’. If one goes with the categories Krishnan marked, this was a case of Dalits asserting their presence. As suggested by Teltumbde, with the temporal mark of 1977, it can be argued that almost every case of atrocity was that of vengeance against the rising assertion of the Dalit identity.
But the problem with the situation is that the atrocity itself bore some peculiar markers that fall under the paradigm of torture. Even before the heinous acts of torture, the constant berating of the Bhotmanges and the assault on Siddharth Gajbhiye can be read as moments of psychological torture on the family. But as Wisnewski has written, such distinctions are only for those who want to justify torture. As mentioned above, the triggering event according to Teltumbde was the arrest of 12 out of the 15 accused for the attack on Siddharth orchestrated by the OBCs of the village. This arrest itself was a ‘farce’ due to its charges that did not include PoA, 1989 but also because of the position the accused enjoyed in the village.
The tone of the sadism in the Khairlanji starts from the very beginning. Teltumbde writes how the perpetrators arrived on the land of the Bhotmanges with tractors and a big crowd, “drunk” and in a “celebratory mood”. Bourke’s claim of the carnivalesque essence of torture is visible here. A meeting also ensued before the attack itself; it was carefully strategised. If one goes with Neroni and Wisnewski’s understanding of torture, the point of hidden truth in the body becomes crucial. It is established earlier that the extreme violence that PoA, 1989 legally defines as an atrocity saw a rise only after particular laws were implemented and symbols of emancipation like Ambedkar and reservation in the public sector appeared. The “dialectic relationship” of caste depends upon the positioning of the untouchable as the subject that is inherently and systemically bound to exist outside the society. This dialectical relationship is disturbed by the implementation of laws that inculcate the untouchable into the boundaries of civilised society. Thus, what is visible is the breaking of this relationship and inevitably undermining the Truth of the varna. A Truth undermined is a Truth belied. The Bhotmanges did not hide any truth but they did defy the truth of the Brahmin. Thus, the horrors of the event itself can be interpreted as justifying a truth, forcefully retelling the truth of the society.
This excursion of truth is also met with a new level of sadistic and sexualised format. Women belonging to the OBCs community were active members in the crime where they stripped Surekha, the 51 year matriarch and the 17 year old daughter Priyanka. After that Priyanka was taken in the shed nearby to be raped. It is important to note how the actual act of punishment takes place in the shed, an area hidden from the major mob. Apart from the raping of the women, what stands specifically horrifying detail is incest invocation. Sudhir and Roshan were “ordered” to rape their mother and sister. The heights of scopophilia and incest voyeurism cross paths with absolute evil. When the teenage boys refused, their genitals were mutilated. The crime revolved around the pleasure of the torturer while the spectators became active participants through voyeurism. Wisnewski’s postulation that the destruction of agency lies at the centre of torture stands true as well. The Bhotmanges were attacked for their agency itself. The place of torture also becomes important in this case. It happened in the same land they were fighting for against the Atilkars. The space of a home plays an important role in being a subject. A complete annihilation is visible during the crime. The relationships of kinship between Surekha, Priyanka, Sudhir and Roshan were also destroyed by the act of rape and then the order to commit incest. What makes a mother, a mother as such was mutilated. In other words, the shift from a woman to a mother entails complex relational shifts to certain cultural phenomena. The ideological paradigms and belief systems with this shift also change. Hence, a mother is ideologically positioned as a mother. This pragmatic and cultural context was destroyed through the logic of torture. Her children were beaten, thrashed, and raped in front of her. She was forcibly made a witness to the torture. Another person whose agency was annihilated was Bhaiyalal, who perceived and saw the attack but could not help his family. Given that he is the conventional patriarchal head of his family, he had to bear a form of emasculation through this act.
Khairlanji stands as the ugly epitome of torture and the sexual pleasure of the torturer. Reports even showed acts of necrophilia after the crime was committed signifying an effort to perpetuate torture even after they died. As Wisnewski writes, “Death is certainly a great harm, but it is not a harm that continues to be suffered by the person who dies” (2010, 66).
Conclusion
The problem with torture is double-edged. It makes the human consciousness disgusted and simultaneously excited. This problem starts to manifest itself in the legal language where authorities perpetually want to shun the central agency-destroying core and the sexual pleasure intertwined within the act of torture, thereby the disgust which is legally repressed makes a violent and overt presence. Even in Khairlanji through multiple postmortems, the authorities did not file Section 376, the penal code for rape. The very nature of society that justifies and promotes such heinous crimes ends up being denied. A qualitative take on torture is needed to understand the ideology that guides it. The dehumanisation of the subject before, during and after the act of torture unfolds through ugly fronts that human rights organisations have to face. Thus, the definitions of crime, sin and justice are in need to be deconstructed through a discourse that understands torture for what it is—a sanctioned destruction of agency.
References
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AIDMAM-NCDHR. The Crime Against Dalit Women and Minor Girls in India: An Analysis of the National Crime Records Bureau Data 2021, All India Dalit Women Right Forum, 2022. http://aidmam-ncdhr.org/dalit-woman-rise-report.
Amnesty International. Stories of Torture in the 21st Century, 26 June 2003. www.amnesty.org/ar/wp-content/uploads/2021/06/pol300052003en.pdf.
Bhuwania, Anuj. “‘Very Wicked Children’: ‘Indian Torture’ and the Madras Torture Commission Report of 1855”, SUR-International Journal of Human Rights, no. 10 (June 2009): 6-27. www.sur.conectas.org/en/very-wicked-children/.
Bourke, Joanna. “Torture as Pornography”, Guardian. May 7, 2004. www.theguardian.com/world/2004/may/07/gender.uk.
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Krishnan, P.S. “Atrocities Against Dalits: Retrospect and Prospect”, Combat Law 8, No. 5&6 (2009): 6-19.
Muthukkaruppan, Parthasarathi. “Critique of Caste Violence: Explorations in Theory.” Social Scientist 45, no. 1/2, (2017): 49–71. www.jstor.org/stable/26380329.
Nair, Ravi. “India’s Continued Refusal to Ratify U.N. Convention Against Torture Lacks Substance”, The Leaflet, November 21, 2022. www.theleaflet.in/indias-continued-refusal-to-ratify-u-n-convention-against-torture-lacks-substance/.
Neroni, Hilary. The Subject of Torture: Psychoanalysis and Biopolitics in Television and Film. Columbia University Press, 2015.
Pal, G.C. “Caste and Consequences: Looking through the Lens of Violence”, Caste: A Global Journal of Social Exclusion 1, no. 1, (February 2020): 95-100. www.jstor.org/stable/10.2307/48644566.
Teltumbde, Anand. The Persistence of Caste: The Khairlanji Murders and India’s Hidden Apartheid. Zed Books, 2010.
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Nomads in the Pursuit of Justice: A Case of Colonial Legacies and Contemporary Challenges
Nomads in the Pursuit of Justice: A Case of Colonial Legacies and Contemporary Challenges
Indian society is distributed into castes and tribal communities; there are about 1500 major and minor castes, and about 600 tribal communities. It fundamentally operates on a hierarchical, discriminatory caste system. This rigid structure inhibits upward mobility within its ranks, ensuring that higher castes consistently enjoy greater social, cultural, and political privileges compared to lower castes. This system remains deeply entrenched in India. Some castes live in villages, while others do not have a place within the village structure and live outside of it. Nomadic tribes are communities that move from place to place rather than settling permanently in one location. These communities live outside the village without settling in it. Originally, they were not part of the caste system, though contemporary times have forced them to adopt a place within it. There is considerable diversity among nomadic tribes, with each tribe having its own language and rituals, highlighting the variety within the nomadic community. Traditionally, these communities had been hunter-gatherers, nomad-traders, shepherd-pastoralists, and people who showcased their traditional skills and displayed folk customs as they travelled from village to village to earn an income. The life of nomadic tribes was never self-sustaining. Scheduled tribe communities can live independently in the forests, and scheduled caste communities have been at least partially integrated into the village system of mutual interdependence. However, nomadic and semi-nomadic tribes cannot live independently of the village system. Despite their reliance on the village system, nomadic tribes could not become part of the village, nor were they ever permanently accepted by it.
These communities have been in continuous conflict with the state, system and society for centuries to preserve their way of life and a distinct value system. For example, in the colonial period, the wandering mercenary soldiers were mostly from nomadic communities and would have become a threat to the stability that the company rule sought, and thus something had to be done about it. As David Arnold points out, “To the colonial regime crime and politics were almost inseparable: serious crime was an implicit defiance of state authority and a possible prelude to rebellion; political resistance was either a “crime” or the likely occasion for it.” (Dandekar 2021, 119). The colonisers always had a fear of nomadic people, a fear that they acquired from their experience with vagabonds back in Britain. There, the vagrants and vagabonds had posed a serious threat to established order and property during the sixteenth and seventeenth centuries (Bhukya 2010, 74). Some tribes having trading occupations historically, posed a threat to colonial monopoly over the trade of some essential commodities. For example, “The Banjara community of Deccan and central India held significant control over the salt and grain trade in the central province, while the Koracha community also dominated grain and salt trade in Madras province. This resulted in revenue loss for the East India Company, which faced trade limitations as a direct consequence.” (Radhakrishna 2001, 28). Consequently, all nomadic communities were viewed with suspicion by the colonial British rulers.
Also, for any governing body, it’s difficult to manage and regulate wanderers rather than the settled. Therefore, nomadic communities such as the Lambadas of Deccan and western India were compelled to settle down, contrary to their traditional way of life. This state initiative severely hampered their cattle raising and agricultural activities, which was further worsened by a series of severe famines and other external factors. In desperation, several nomadic tribes from subaltern communities turned to theft and dacoity.
The colonial state interpreted dacoity through the lens of the caste system, which they believed to be the essence of Indian society and inherently hereditary. Colonial administrators and ethnographers equated caste with occupation and vice versa. Hindu texts broadly classified jatis (castes) as pure or impure, attributing honesty or dishonesty accordingly. The colonial state adopted this perspective and linked it to their prejudiced notions of vagrants, gypsies, and nomads as being born criminals. Consequently, the authorities implemented various methods to control, regulate, and ostensibly reform these so-called “Criminal Tribes,” thereby socially stigmatising them.
In 1871, the Criminal Tribes Act was enacted to address such thefts and similar crimes, as they threatened English state authority. Under this act, almost two hundred nomadic tribes across the country were labelled as criminals, associating crimes, whether committed or not, with their identity. In essence, the 1871 Act gave the police considerable power over a large number of people. Under this sweeping piece of legislation, individuals from communities declared criminals were to register themselves and their families with the police. Any member of a Criminal Tribe community found absent from the village without a license a second time was to be punished with rigorous imprisonment for up to three years (Radhakrishna 2001, 29). This act mandated that those designated as criminal tribes be registered with local police stations, confined to specific villages, fined and punished, and placed in reformatories. Groups subjected to these measures found it difficult to earn an honest livelihood, increasing their likelihood of committing dacoity. Itinerant communities, which were particularly affected by these restrictions, suffered greatly (Bhukya 2010, 118).
One important aspect of this Act was that the offenders were arrested not because of their actions, but because of their classification. Local officials were instructed to closely watch and control the activities of the Pardhis, Dhangars and Banjara communities for proper surveillance and regulation of these groups. In this way, the creation of a surveillance society served colonial ends. The theoretical concept of anthropology of the state, which focuses on how states manifest themselves in practice and their interactions with local communities, can be applied to the legal developments in law, order and regulation during the British colonial period and their impact on nomadic communities as mentioned by Ferguson and Gupta in 2002, “Verticality refers to the central and pervasive idea of the state as an institution somehow “above” the community. The state itself, meanwhile, can be imagined as reaching down into communities, intervening, in a “top-down” manner, to manipulate or plan society.” (Ferguson & Gupta 2002, 982)
Prominent initiative in this respect was the relocation of entire ‘criminal’ communities to settlements where they could be kept under close observation and, ideally, reformed. As Foucault says, the disciplinary state sought to create ‘docile bodies’ which involved the confinement of individuals within enclosed spaces (Foucault 1995). Criminal Tribes Act 1871 aimed to regulate and control specific communities deemed “criminal” based on colonial perceptions of their supposed criminal tendencies. Under this Act, these communities were subjected to strict surveillance, restrictions on movement, and forced settlement in designated areas (Radhakrishna 2001, 72). Elderly, women, and small children of the nomadic tribe were forcibly kept in the open spaces of this ‘settlement’. Men and women were made vethbigars (forced labourers) and joined the unpaid work of modern railway tracks and other colonial projects. Although some of these settlements were closed and some were open, they were a kind of prison. The rules of these prisons were oppressive. Even a baby born here in the prison was bound by those rules. Attending the settlement every morning and evening, again, night after night, the police came to the hut, pulled the bedclothes and looked at the people. Every morning, they were accounted for, after which they left for railway or mill work. If they wanted to go to other places, it was mandatory to get permission from management and the authorities.
Furthermore, the Act can be seen as a manifestation of the ‘infrastructure of fear’ (Sur 2021, 123). The Act served to institutionalise the exploitation and oppression of certain communities while benefiting from the labour availability and economic interests. Connecting this to infrastructural oppression and exploitation by the government, the Act contributed to the systematic marginalisation and discrimination against these communities. Additionally, by labelling certain tribes as “criminal,” the government justified its oppressive measures, which often included the confiscation of land and resources from these communities. Moreover, forced settlement mandated by the Act disrupted the traditional ways of life and livelihoods of these communities, further worsening their socio-economic position. In this case, the government allocated separate places for nomadic tribes within the state, saying that these arrangements were made to reform the tribes. However, these designated settlements were not created to reform, empower or uplift the nomadic communities but to segregate and marginalise them from the rest of society. By confining the nomads to specific areas, the government aimed to exert control over their movements and limit their interactions with the broader population. They were denied access to resources and opportunities available to others in the state. “The practice of dealing with criminals separately in reformatory barracks was informed by a discourse of criminality in nineteenth-century Europe that stated that a criminal steals not because he is poor- for not all poor people steal-but because there is something wrong with his character, his psyche, his upbringing, his consciousness, and his desires.” (Bhukya 2010, 151)
In “Shamshera,” a mainstream commercial Hindi film, the narrative unfolds against the backdrop of the British colonial era, particularly focusing on the introduction of the Criminal Tribes Act. The film begins in 1871, the year British colonists passed the Criminal Tribes Act that notified entire communities as potential troublemakers. This legislation led to the confinement of nomadic and semi-nomadic tribes into limited mobility settlements, akin to ghettos, where they faced oppressive colonial practices such as forced labour and alienation from their traditional migration and cultural customs. The movie portrays the state-enforced violence inflicted upon these marginalised communities by the colonial regime. The people oppressed by the state in the form of a uniformed policeman. The protagonist, who is born and raised within one of these settlements, becomes the focal point of resistance against the oppressive colonial forces. His story revolves around the struggles faced by nomadic tribes subjected to state-sponsored violence and exploitation, highlighting themes of resilience, identity, and rebellion against oppressive systems. In the movie, we see how the main character’s story reflects the tough times nomadic tribes went through during colonial rule. It shows how they faced violence and unfair treatment from the government. Despite this, the movie also highlights how these communities stayed strong and fought back against oppression. This example is a powerful way to talk about the effects of colonial policies on nomadic tribes and how people resist when faced with unfair treatment by those in power.
India gained independence in 1947, and the subsequent partition had a considerable impact on Indian society, particularly on communities residing in the borderlands. Among these, communities on the socioeconomic periphery were especially affected. The partition significantly impacted many nomadic tribes in these border regions, yet this dimension remains largely understudied. To address this gap, it is essential to examine the adverse effects of partition on these communities within the broader framework of justice, as explored through partition studies.
Even after India gained independence, these communities were required to remain in their settlements for an additional five years and fifteen days. During the constitution-making process, nomadic tribes were effectively confined to their settlements and had no representation in the formation of welfare policies for independent India. After the independence of the country, the first Lok Sabha election was held in 1951. A total of 54 political parties in the country participated in that election. 1874 candidates stood for election across the country. Voting for the Lok Sabha elections began on 25 October 1951, but the last phase of voting ended on 21 February 1952. The first general election was conducted in as many as 68 phases. At all stages of this election, Nomadic tribes were kept inside the wired settlements. They watched the country’s first-ever democracy celebration from the barricaded windows of more than 52 jails (Bhosale 2022, 71). Consequently, these communities were excluded from the benefits of social and economic programs due to the policymakers’ lack of consideration for their unique needs and circumstances. Although the Nomads Act of 1952 granted freedom to nomadic tribes, societal stigma persisted, labelling them as “criminals” and excluding them from mainstream society, thereby criminalising their way of life.
Many of the new policies of modern India, instead of providing protections to the Denotified Tribes similar to those extended to Scheduled Castes and Scheduled Tribes, have deprived them of their traditional employment. Even after India’s independence, some communities previously labelled as ‘criminal’ under colonial laws continue to face the stigma. The Habitual Offenders Act continued to frame these communities as criminals despite their official denotification in 1952, perpetuating their marginalisation. The name of the Act was changed, but till 1992 communities like Kaikadi, Ramoshi, Pardhi, Kanjarbhat, Bhamta were being held under this Act. In India, the Wild Life Protection Act came, communities that initially used bears, snakes and monkeys for hunting were labelled as criminals when their activities became problematic, leading to severe consequences. The Magic and Drugs Act stopped the traditional business of medicine makers (vaidu) who made a living by selling herbs. The ‘Prevention of Beggary Act’ was enacted to starve Vasudeva, Bahurupi, Kadakalakshmi, Joshi, Gandhari, Gosavi and others who begged for alms in the name of god.
Coming to the related aspect of being a citizen of a nation-state, in the case of nomads, the idea of the name of a region or country is not necessarily a priori. In the case of a nomadic society, the definition of ‘people with the same language or same culture or same race’ does not seem to be applicable because of the plurality they display (Bhosale 2022, 86). Whatever castes and tribes of nomads are roaming in the Indian territory, they have neither the same territory, nor the same language, nor the same culture, nor the race. The area where they practice their rituals or wandering business or even practice their specific language is called ‘Our Province’ (aapla ilakha) and ‘Foreign’ (pardes) to other provinces. So what will the idea of a modern nation be like in terms of nomadism? According to the Balkrishna Renke Commission Report (2008), 98 percent of people from nomadic and semi-nomadic communities are homeless; they neither have their own land, nor they have necessary documents. Overall, 54 percent of people don’t have any valid official documents to prove that they belong to this country. Most of the people don’t have any birth certificates and accurate dates of their important life events. While some government schemes are designed to assist nomadic tribes, these programs need to be decentralised to effectively reach the communities that require them. The primary reason for the lack of access to government schemes is the absence of necessary documents required for daily official purposes. This issue is fundamentally rooted in factors such as large-scale illiteracy and insufficient administrative awareness, among others. Technically one can say, on paper, they are not even citizens of India. The situation for women among nomadic tribes is particularly grave, with significant challenges in gynecological health. Additionally, the carrying of criminal stigma and migration to unfamiliar regions for labour contribute to their physical, emotional, and financial exploitation by men from dominant castes and classes. Despite being illegal, the system of Jaat Panchayat continues to exercise considerable authority as a quasi-judicial body within these communities, disproportionately affecting nomadic women. Popularly, the idea of modernity in sociology consists of the nation-state, a stable economic system and a non-partisan judicial system along with other factors. But, if this part of the society has not been considered citizens, therefore, we can say modernity has been such a reverse in the case of nomads.
Coming back to the criminal stigma, in the infamous Dhule lynching case in Maharashtra, a mob murdered a group of nomads suspected of child lifting. The incident occurred when a group of Nathpanthi Davari Gosavi (a nomadic tribe) was passing through the region and was attacked by a mob over unfounded suspicions. Tragically, the attack resulted in the death of five individuals. The verdict highlights the grave consequences of misinformation and mob violence, particularly targeting vulnerable communities like nomads. The incident occurred on July 1, 2018. Also, the same incident happened in Sambhajinagar (erstwhile Aurangabad) district of Maharashtra in 2019. This incident of the Dhule lynching, along with other similar occurrences in recent times, underscores the persistent criminal stigma attached to the nomadic communities in India. This stigma stems from historical state-enacted colonial policies, particularly targeting nomadic tribes. Despite the abolition of such laws after 1952, the legacy of suspicion and discrimination against nomadic tribes persists in modern India. This ongoing marginalisation denies them the full rights and dignity of citizenship. Addressing grassroots issues requires enhanced access to quality education, efficient healthcare services and employment opportunities. These measures are essential for integrating these communities into mainstream society. Additionally, sustained efforts by the state and social organizations to eliminate the criminal stigma from societal perceptions are crucial for fostering long-term integration and acceptance. This issue extends, in a way, beyond mere political citizenship to encompass social citizenship, wherein marginalised communities are denied the rights and recognition necessary for meaningful participation in society. But unfortunately, even after the persistent advocacy by scholars and activists from the communities, government and administrative responses remain insufficiently effective in addressing the needs of these populations.
Despite being labelled as vimukta or liberated after being denotified in 1952, the reality is far from freedom for the nomads. The question persists: are they truly liberated from this criminal stigma?
Bibliography
Bhosale, Narayan. Bhatkya Vimuktanchya Itihasachi Sadhane (The Historical of Nomadic and Marginalised Communities). Maitri Prakashan, 2022.
Bhukya, Bhangya. Subjugated Nomads: The Lambadas under the Rule of the Nizams. Orient BlackSwan, 2010.
Dandekar, Ajay. “Silent Voices, Distant Dreams: India’s Denotified Tribes.” In Being Adivasi: Existence, Entitlements, Exclusion, edited by Abhay Flavian Xaxa and G.N. Devy, Penguin Books, 2021.
Devy, G. N. A Nomad Called Thief: Reflections on Adivasi Silence. Orient Longman, 2006.
Ferguson, James, and Akhil Gupta. “Spatializing States: Toward an Ethnography of Neoliberal Governmentality.” American Ethnologist 29, no. 4 (2002): 981-1002.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1995.
Radhakrishna, Meena. Dishonoured by History: ‘Criminal Tribes’ and British Colonial Policy. Orient BlackSwan, 2001.
Renke Report. National Commission for Denotified, Nomadic and Semi-Nomadic Tribes. 2008.
Sur, Malini. Jungle Passports: Fences, Mobility, and Citizenship at the Northeast India-Bangladesh Border. Philadelphia: University of Pennsylvania Press, 2021.
Justice after Death: Manifesting Hell as a Space of Crime and Justice
Justice after Death: Manifesting Hell as a Space of Crime and Justice
It is very interesting that the conception of the afterlife is a space where the actions of the temporal life are judged and adjudicated. ‘Wrong’ actions– sins and crimes– land you in Hell, or worse while a life led doing good gets you heaven. As ye sow, so shall ye reap. In this way, the idea of an afterlife, and especially Hell, worked as a disciplinary ideology in society. The idea behind this essay is to conceptualise “Hell” as a complex of two ideas: crime and justice. I propose that beyond a disciplining ideology, Hell was also imagined as a space where justice undelivered on earth was delivered. Victims of injustice often vent their frustration or console themselves by thinking that the perpetrator will definitely be judged and punished in the afterlife (Hell).
This work analyses descriptions of Hell in Garuda Purana and Dante’s Inferno. Through understanding the differences in nature of both works, Garuda Purana as a religious text and Inferno as a literary one, this essay endeavours to present the imagination of justice after death in different cultures. By adopting a hermeneutical approach, I suggest that the perception of physical pain attributed to the horror of Hell is of a later origin as earlier philosophy and literature in both the East and the West- like the Bhagavad Gita and the Odyssey- mention the difference in attributes of body and soul.
First, it is important to understand what crime is. Perhaps a violation! Every community or state sets and constructs certain rules and regulations supposed to facilitate the functioning and sustaining of the community in a harmonious way. Violation of these rules and norms is purported to be inimical. Due to the relative nature of crime, its definition changes with time and space. Crime in one society could be normal in another, or it is also possible that the notions of crime in the same society change over time.
Secondly, we need to deliberate on the identification of crime. Who defines crime? Or what is its definition? Thinking of crime in this way puts it outside the limitations of a superficial distinction between what is right and wrong, and the construction of right into the domain of control and power. Another thing to consider is whether crime constitutes madness- antithetical to civilisation and operating as a shock to the rational functioning of the human mind. Lastly, with regard to the conceptualisation of Hell as an extra-terrestrial/imaginary space for exacting justice, it is also important to reflect upon the nature of this justice. Justice in Hell is exacted through punishments, and intrinsic to these punishments are the feelings of suffering, pain and horror.
This essay hints at how descriptions of Hell served the dual purpose of acting as a disciplinary force and an imagined space for executing justice but also how it was the powerful sections of the society which decided what was perceived as a crime. Additionally, I also try to explain feelings of horror and physical pain after death act as both deterrent and punishment.
Before discussing Hell as a space, we need a brief introduction to the idea of justice too. Justice marks the base for the imagination of such a space, which provides validity to the crime and punishment discourse. The idea of justice revolves around the notion of fairness. The supposed purpose of merit and worth of human actions could be the first glimpse of such a godly idea of justice. The idea of getting rewarded for good actions and punished for bad ones on the scale of merit and equality with fairness may mark the idea of justice in the public sphere. This understanding of crime is also found in Rawls’ conceptualisation of justice as a “complex of three ideas: liberty, equality, and reward for services contributing to the common good” (Rawls 1958).
Preoccupations with the idea of a space where justice was served or crime punished persisted in the imagination of both the East and the West. However, the perpetuation of the idea of Hell as a space where any transgression, irrespective of being cognised or not, will be punished is a key element in later normative scriptures. This gained ideological repute amongst the ruling elites to control the actions of individuals and ensure the harmonious and disciplined functioning of society.
The idea of narak as a space can be gleaned from descriptions in the Mahabharata and Dharamsastras like the Manusmriti and Puranas (like The Bhagavat Purana and the Garuda Purana). But in earlier compositions like the Mahabharata and the Manusmriti, there is no systematic description of either Hell or the punishments meted out there. Hell is described for the first time in the Puranas. The description of this narak in Garuda Purana is embedded within a Socratic dialogue in which Garuda, the king of birds in Hindu mythology, is curiously asking about the nature and existence of Hell (narak) from supreme lord Narayana. The supreme lord answers that there are many Hells, so many that it is not possible to describe them in a crisp manner. Therefore, Narayan only talks about the prime Hells, amongst these, raurav is the main one, reserved for liars of all kinds, two thousand yojan (traditional Indian measurement of Yojan goes by 1000 Yojan = 12874 kilometre) in length with burning fire and fiery ground which burns the feet of the convicts, and they have to cover this distance with the pain of burnt feet with blood and pus (ibid). Then there is maharaurav of five thousand yojan, with a copper-like shining ground with burning heat under it, where convicts roll with tied hands, all the while getting constantly attacked by dangerous animals like wolves, crows, mosquitos, scorpions (bicchu) and owls for thousands of years till they get liberated. Next in the series is atisheet which literally translates into too cold. Then comes nikrintan with a rolling wheel. It is followed by asipatravan, with seven suns in a full blaze, burning ground, with one corner covering forest with a hoard of leaves and fruits where mighty meat-eating dogs which look like tigers wander with fierce heads and teeth to tear down the victims and feed on them. Then there is tapta kumbha, with boiling oil, for sinners who tried to make relations with their teacher’s wives or own sisters or somebody who had murdered a Brahmana (Garuda Purana 1998, 456-459). All of these naraks are under the control of Yama, the ruler of narak. The idea of Hell as a space where crime could be punished didn’t limit itself to the crimes like Brahman killing, murder of kshatriya and vaishya, womb killing or cow killing, but at many points, the punishment for crimes against the state was also mentioned, like selling banned products. Selling alcohol could get oneself to taptalauhnarak. Perhaps this provides a glimpse of the idea of state patronisation of such works and the concept of infusing statecraft with religion to regulate the precarious functioning of the state.
From the above discussion, two significant observations can be drawn. First, in the discourse on narakor Hell, all the punishments are manifested around the pain and horror of physical punishments. The projection of suffering is extracted from the imagination of pain experienced in earthly life. It is through this narrativisation of physical pain that the idea of fear permeates into society and acts as a deterrent against any deviation from the accepted structure or committing of crimes. This underscores the significance of physical pain and corporal punishment. Explaining the significance of the human body, Jones Darryl argues, “Bodies can be viewed as symbolic systems, sites of meaning, power, threat, and anxiety. Viewed in this way, our skin functions as a boundary, a vulnerable, malleable, porous, leaky border between inside and outside, self and others, a site of abjection and of pain” (Jones 2021, 81) However, the interesting facet of the equation is the fear of physical punishment, which is cognitively perceived. In the Bhagavad Purana, a text older than the Garuda Purana, while discussing the nature of existence, Lord Krishna explains (Chapter 2, Verse 23)5:
“नैनं छिन्दन्ति शस्त्राणि नैनं दहति पावकः ।
न चैनं क्लेदयन्त्यापो न शोषयति मारुतः” ॥23॥
Krishna’s words convey that the human body isn’t the prime entity, but it is the soul which is indestructible- it can not be cut, drenched, burnt or dried. Lord Krishna’s words convey different ideas about the properties of the soul- it is intangible, beyond the perception of human senses and also incomparable with living attributes of the body. The Bhagavad Gita also presents the discourse which further clarifies this distinction between soul and body. In chapter 2, verse 17,6 Krishna speaks
अविनाशि तु तद्विद्धि येन सर्वमिदं ततम् |
विनाशमव्ययस्यास्य न कश्चित्कर्तुमर्हति || 17||
Which in English would translate to: that imperishable soul that exists within you is indestructible and nothing or no one can cause its destruction. Going by this more antiquated philosophical discourse of the soul, the idea in Garuda Purana about the suffering of the soul, much like the body, on a physical level seems completely contradictory. Further, Krishna clarifies this in verse 18 of chapter 27
अन्तवन्त इमे देहा नित्यस्योक्ता: शरीरिण: |
अनाशिनोऽप्रमेयस्य तस्माद्युध्यस्व भारत || 18||
The English translation of this would be that it is only the body which perishes or is destroyed. The embedded soul within is completely indestructible and eternal. This comparative assessment of soul and body in ancient discourse clearly contradicts the later imagination of punishment and justice exacted on the soul with the physical attributes of the body. Both Garuda Purana and the Bhagavad Gita are part of the Hindu sacred literary compendium, so what explains the contradictory ideas? Unlike the Bhagavad Gita, which engages with matters of philosophy, the Garuda Purana, composed in the 9th century CE, was, I advance, a dogmatic literature which tried to generate the fear of Hell to control and manipulate the functioning of actions in communities by standing on the shoulder of the demon, that is, by the projection of the human body as a site of pain.
Hermeneutical observations of the Garuda Purana reveal the presence of Brahmanical ideology in play to lay out the norms and boundaries in society. As can be evidenced from the description of Hell provided above, the Purana says that liberation from most sins and even actions deemed criminal by the state is to be achieved either by providing for the welfare of the Brahman community on earth or by suffering through the horrors of narak. A quick glance at the nature of sins or crimes that land one in Hell also shows that most of the actions represent contemporary Brahmanic anxieties: control of sexual deviance, adultery, murder of Brahmans, and cow killing. The Brahmans’ primary objective was the maintenance of the varna hierarchy in the society and anything that was a threat to this status quo was a digression suitably punished in narak. Further, what is also apparent from the description is the collusion of the state and the Brahmans. Actions that were crimes in the eyes of the state- stealing, fraud, selling contraband, trade in intoxicants – also earned a place in Hell. State-religion association for legitimacy and patronage is a well-established fact in history. The Garuda Purana provides an interesting example where the state uses religious dogma as a deterrent to criminal activities in society.
The idea of Hell was also manifested in 13th-century Europe in Dante’s imagination. Dante’s masterpiece, the Divine Comedy, narrates the journey of the protagonist, the poet himself, through the “three realms of the mediaeval Catholic Otherworld: inferno, purgatory, and paradise” (Durling 1996, 3). Different from the literary imagination of the Garuda Purana, instead of the existence of multiple Hells of prime and subprime nature, Dante’s inferno is a uni-structure with different levels or sections based on the nature of crimes. Despite that, the similarity lies in the perception of Hell as one realm among three- Heaven, Hell and Earth; in the imagination of both cultures.
(ed. Durling, 1996, xvi)
Dante’s Hell is made up of nine circles containing souls who committed different sins of lust, violence, treachery and fraud. Like narak, fear is the prime glimpse of Dante’s Hell too. In the beginning itself, Dante expresses the idea of fear as the main rasa of perceiving Hell, “but when I had reached the foot of a hill, where the valley ended that had pierced my heart with fear; and then again, “she put on me so much heaviness with the fear that came from the sight of her, that I lost hope of reaching the heights” (Durling 1996, 27-29).
However, much like the case with the Hindu philosophical thought, as shown through the example of Garuda Purana, the idea of the deliverance of justice after death is of a later construction in Christianity as well. The Old Testament also differentiates between the attributes of the soul and the body. In the ancient literary imagination of the West8, like in Homer’s Odyssey also, the description of the soul is like a shadow that signifies death after death. Dr Ehrman, in a lecture given on the 9th of January 2021, explains that when in Odyssey book 11, a Greek hero like Achilles died, some part of his body, that is, his soul, left for Hades, and it was like a shadow- immaterial; it did not feel anything. This is illustrative of the idea of not existing after death, i.e., “death after death”. So, this idea of justice in the form of corporal punishment develops later.
The idea of Dante’s Hell relies on souls’ existence in Hell, but the narration of suffering stays limited to the perception of the body as a site of pain, as discussed above. In Canto 3, Dante’s soul glimpses the suffering of other souls. At the entrance to the Hell, he is greeted by the following lines:
“JUSTICE MOVED MY HIGH MAKER; DIVINE
POWER MADE ME, HIGHEST WISDOM, AND
PRIMAL LOVE.
BEFORE ME WERE NO THINGS CREATED
EXCEPT ETERNAL ONES, AND I ENDURE ETERNAL.
ABANDON EVERY HOPE, YOU WHO ENTER”9
In Dante’s work also, it is reflected that justice is the virtue of the almighty. The Lord’s justice is inevitable and is either carried out in the earthly life or the next. In accordance, Hell was the space where suffering and punishments were inflicted for crimes unpunished. Dante’s Hell contains souls who have lost the good of the intellect. He narrates that he witnessed the suffering of souls caused due to pain that can only be inflicted on the bodily level. Because even here, the character of the soul and the body was undifferentiated for the masses, any notion of punishment and pain was naturally perceived as how a living body suffers. Dante quotes, “these wretches, who never were alive, were naked and much tormented by large flies and wasps that were there. These streaked their faces with blood which, mixed with tears, at their feet was gathered up by disgusting worms”. The idea of pain from stinging by wasps and large flies denotes the limitations of fear to the suffering on the tangible physical level. The blood, pus and tears that came out of these souls were the signs of the suffering caused by the corporal punishments.
Garuda Purana might have acted as a deterrent for crime in its time so that it might remain limited to the projection of fear on the body as a site of pain. Perhaps Dante had tried to do something similar within the bounds of his understanding and imagination. It is also possible that Inferno was the product of the whims and fancies of Dante’s times or was written to fascinate the audience with tales of a fantastic and astonishing journey. Further, Dante has elaborated on all the nine circles of Hell, marking befitting punishments like twisting of heads or being dumped in a lake of boiling water. Or in a pitch full of reptiles. It would take a lot of ink to interpret and narrate each punishment, but what this work is arguing is that all of it, the punishment and its imagination of horror, remains limited to a tangible perception of pain in the body.
The limitation of the horror of Hell is the body as the site of pain, both in the discourse of Garuda Purana and Dante’s Inferno, due to a lack of philosophical engagement and understanding of the difference between soul and body. The projection of Hell’s suffering was a controlling mechanism to ensure that rules are followed in society and that violation of these norms has painful consequences. Though the purpose of crafting Garuda Purana and Inferno is widely different, the similarity of manifesting fear as a prime component of Hell and its limitations show resemblance. The idea of Hell as a space where crimes of those who escaped the justice system of the temporal realm could be punished is not discussed in any of the texts though both of them represent Hell as a space of suffering and punishments. Dante’s contrapasso demonstrates that every crime merits fitting punishment, a poetic justice.
References
Alighieri, Dante. The divine comedy. Edited by Roberty M Durling. New York: Oxford University Press, 1996.
Dr. Bart. D. Ehrman. lecture on “The History of Heaven and Hell”. St. Luke’s Episcopal Church. New York. 9th of January 2021.
Foucault, Michel. “Discipline and punish.” In Social Theory Rewired edited by Wesley Longhofer and Daniel Winchester, 319-329. Routledge, 2016.
Foucault, Michel. Madness and Civilization. Routledge, 2003.
Garuda Purana. Gita Press Gorakhpur, 1998.
Jones, Darryl. Horror: A very short Introduction. Oxford University Press, 2021.
Jacobsen, Knut A. “Three Functions of Hell in the Hindu Traditions.” Numen 56, no. 2/3 (2009): 385–400. http://www.jstor.org/stable/27793797.
Lamond, Grant. “What is a Crime?” Oxford Journal of Legal Studies 27, no. 4 (2007): 609-632.
Rawls, John. “Justice as Fairness.” The Philosophical Review 67, no. 2 (1958): 164–94. https://doi.org/10.2307/2182612.
Review Essay
Justice as a ‘Moral Vision’: Discussing Murdoch’s Alternative to the Politico-Legal Language of ‘Liberal Justice’
Justice as a ‘Moral Vision’: Discussing Murdoch’s Alternative to the Politico-Legal Language of ‘Liberal Justice’
By Ratika Gaur
Abstract: The radical ‘inwardness’ of the modern self creates a two-fold problem for ‘liberal justice’. One, in the absence of all moral notions of an external (impersonal) ‘Good’, it operates using the dry politico-legal language of rather incompatible ‘rights’. Two, it struggles to justify an atomised individual’s moral obligation towards others. In this regard, Iris Murdoch’s The Sovereignty of Good (1970) presents an alternative picture of justice as a ‘moral vision’ that enables individuals to see outside (not inwards) their egos and engage with the world as is out of a pure non-possessive love.
1. Introduction
It may be that things would be wonderfully harmonious in the perfectly engineered society, but why should I work for its distant realisation today, even at the cost of my life and well-being?
-Charles Taylor (2001, 336)
Dominant Western liberal discourses10 on the idea of justice are usually premised upon a bipartite inquiry: (i) the inherent incommensurability between the competing pulls of absolute freedom and substantive equality within heterogeneous liberal-democratic societies; (ii) the subsequent challenge of delineating the foundations of political obligation amongst autonomous modern individuals. In response, scholars have developed a politico-legal language of justice that attempts to harmonise the contradictions of liberty and equality by developing what may be called a ‘civility toolkit’ that fixes situations and conflicts through the ideational nuts and bolts of ‘autonomous will’, ‘rationality’ and ‘tolerance’. But a dive into the historical and philosophical genealogy of these quick fixes reveals that it is the very perpetuation of these ideas (of free will, rationality and tolerance) that exaggerates, rather than resolves, the inherently liberal problem of incommensurability between freedom and equality.
In this regard, the first section of this paper postulates that the underlying rationale of this ‘civility toolkit’ is premised upon a theologically rooted anthropocentric tendency of liberal justice to celebrate the nature of the ‘modern individual’ as a radically inward Lockean ‘punctual’11 self. The identity of this modern self is comprised of two important features: one,that its ‘will’ is the ultimate moral source of action/obligation, to the exclusion of (what Charles Taylor calls) any external background or ‘constitutive good’; two, in the absence of an external higher Good, the modern self has become inherently contradictory in the sense that it is at once rationally disengaged from, as well as deeply immersed into, its subjective experiences. This duality of the modern self creates, in turn, a serious weakness in the operations of justice within contemporary societies wherein an individual’s particularistic demands for acknowledging unique embodied experiences (substantive differentiation) are dealt within liberal institutions through procedural demands for disengaged objective impartiality (universal proceduralism). In simpler words, the problem of liberal-democratic justice is that it attempts to resolve conflicts by evaluating unique/subjective embodied claims of individuals through impartial/rational formal procedures. Owing to this ill-fitted response, conflict resolution within liberal-democracies tends to suffer from an inherent crisis of political obligation, which, in turn, is addressed by liberal institutions through an equally problematic discourse that offers “tolerance” (i.e. a bare minimum balance of power arrangement) as a concealed version of condescending discipline akin to Foucault’s model of governmentality.
The next section, then, presents a resolution to this problem of liberal justice by contending for a shift in perspective towards the arguments of Iris Murdoch (1970), forwarded in her excellent work The Sovereignty of Good. Murdoch’s work begins with a critique of the utilitarian-existentialist conception of an atomistic, self-centred modern self who is heavily reliant within, i.e. upon one’s radically inwardness and ‘disenchanted’ will for deriving notions of moral good and political obligation. She contrasts this with her singular assertion that justice entails a moral goodness which operates best when it is independent of one’s self-interest. Her alternative version of justice accordingly involves a ‘moral vision’ wherein individuals see the world more clearly or attentively. This attentive vision entails a conscious process of ‘unselfing’ so as to allow for a loving, just, and detailed contemplation of reality through which an individual apprehends the moral good as is, irrespective of one’s personal goals. Her arguments therefore borrow from the Platonic idea of the Good as an objective reality which operates as a transcendent, unifying principle that guides just moral understanding and political obligation. Therefore, through the alternative arguments of Iris Murdoch, this article advocates for an active re-evaluation of the role of justice within moral philosophy beyond a mere politico-legal rule-following or consequentialist calculations of ‘tolerance’, towards a more holistic and ethical understanding of ‘moral vision’.
2. Tracing the Genealogical Rise of the Individual, Will & Autonomy Within Western Liberalism
[…] every human being (as being self-directed/autonomous by the law of reason) is an end in herself/himself and deserves to be singled out from the non-human universe to receive the respect befitting such an end. This respect/treatment involves the selective recognition of the human being as the bearer of rights rather than an owning of kinship with the non-human other.
Bindu Puri (2022, 37)
That the western liberal ideas of liberty, equality, rationality and tolerance derive from a particularly theological nature of the ‘will’, shaped through the precepts of the New Testament, is well-accepted (Sidentop 2014). As the story goes, the Pauline interpretation of the incarnation of ‘The Christ’ challenged the hierarchical order of antiquity by creating a brand new and equal social role – the ‘individual’. Within this worldview, each individual was equal in social status because within each person lay an innate capacity to exercise one’s God-ordained agency or ‘autonomous will’. In other words, it was the possession of a ‘free will’ – or (what was called) ‘Christian Liberty’ – that granted all individuals a universal claim to equality. It is this early theological belief – that liberty is what guarantees equality – which has subconsciously shaped the natural inclination of the liberal discourse to accord a first-order priority to an individual’s liberty over equality. For it is assumed that individuals are equal because they are absolutely autonomous, such that in the absence of liberty there could be no claim to equality. Furthermore, by claiming that the ‘Kingdom of God is within you’, Paul interpreted the source of this liberty to be essentially ‘inward’. He accordingly inaugurated a movement towards the inner depths of the self where each individual would find a personal connection with the divine in the form of one’s “free will”. But the problem of this ‘will’ was that it was inherently hedonistic or ‘weak’.
This implied that contrary to what was hitherto believed, antiquity’s impersonal Reason could no longer out of its own resources decipher the ancient notion of the ‘Good’ and command the moral authority to motivate an individual’s free will to act virtuously. This humbled the ancient notion of Reason which could no longer command reality by subduing sensory experiences in the pursuit of abstract transcendental ‘forms’. The usefulness of reason, rather, was democratised and internalised. For it was asserted that each individual was endowed with a rationalising ability – the power of deliberation – that could identify the ‘right reason’ amongst alternating desires to allow the will a choice to be virtuous. On the one hand, this shifted the position of ‘motivation’ – that unique bridge between intention (deliberation) and consequence (action) – within an individual’s will which was hedonistically weak. On the other hand, Reason was transformed into ‘rationality’ – an inner deliberative agency endowed equally among moral agents to aid the operations of their free will.
This implied that the ancient Platonic conception of justice, that believed in the rule of Reason over appetite, could no longer justify determining the degree of punishment for an act through an exclusive focus on the consequence of that act. The new-found Christian belief in an individual’s free moral agency or ‘inner conviction’ (along with the limited role of rationality to grasp the entire truth) created a new room for focusing on human intention, by identifying the difference between ‘internal’ reasons for acting and the physical causes of ‘external’ events. Hence, individuals were not to be judged as per the consequences of their faulty actions since there were many external causal events outside of one’s control. Rather, true justice entailed focusing upon an individual’s upright intention. For each individual working upon the authority of one’s inner convictions or will was a self-responsible agent. Free will accordingly became a new self-sustained source of moral authority which did not require external control or mediation. This was because moral perfectionism (mediated through the church, law or state) for a hedonistic will was unattainable. Instead, understanding the complexities of the ‘will’ required delving into one’s conscience with humility.
But a recognition of this need for individuals to go as deeply inwards as possible to find salvation, called upon a new spirit of disengagement with the outer world. Legally, it implied subordinating all external demands to the commands of one’s inner conscience and creating a formal protection for the latter against the onslaughts of the former. This gave rise to a discourse on natural rights which legalised the definition of an individual as a person born with an inner conscience – a will – characteristically hedonistic and self-dependent in its motivation. Only the dictate of Justice could moralise the exercise of this will through ‘right reason’. But the meaning of the right reason was itself personalised to each individual’s inner conviction. This emphasis on the ‘innerness’ of justice would eventually pave the way for the birth of liberal secularism12 in the political sphere: “[…] a sphere resting on the ‘rightful’ claims of individual conscience and choice, a sphere of individual freedom protected by law” (Siedentop 2014, 292).
2.1. The Growing Supremacy of ‘Inner’ Over The ‘Outer’: Rise of The Modern Liberal Self
This happened by the fifteenth and sixteenth century, when Christianity’s hitherto anthropocentric move towards innerness (to derive certainty and conviction from one’s will) and disengagement came to be significantly radicalised. For the secularising arguments of Descartes’ Cartesianism, Lockean Deism, Enlightenment naturalism, Kant’s humanism and Romantic expressivism took the innerness and hedonism underlying these theological moral intuitions to its atomistic and subjective extremes as they steadily transformed the external reality into an observer-specific sensory knowledge constructed through a disengaged method of empirical observations.
This was because a preference for an inner moral conviction as against the ancient logic of an external cosmic order dictating the supreme ‘Good’, nudged these secular traditions into discovering a self-contained and inward source of morality which allowed individuals to stipulate their subjective ‘good’ through the exercise of their natural rights. For it had been increasingly claimed throughout previous centuries that it is only through the language of rights that individuals could exercise their divinely-endowed human agency and appreciate, in the bargain, God’s ultimate sovereign will. This ‘will’, decisively revealed through the incarnation, had equally ordained each person as one’s own moral source, independent in discovering their moral ‘good’ through the exercise of their rationality and free will. In this regard, rights became indispensable for upholding this will through the recognition and protection of an individual’s God-ordained equal and autonomous agency. This implied that the very definition, and dignity, of an individual became rights-dependent, for the basic objective of the latter was to protect the two fundamental criteria (i.e. liberty and equality) which had helped invent the individual in the first place.
But if the epistemology of liberalism is evidently founded upon this Christian moral claim of equal moral agency, what explains the contemporary liberal conflict between an individual’s rightful claim to absolute freedom as against another’s claim to equal dignity, particularly when the negation of even one of these rights can disintegrate liberalism’s (Christian) moral claim to universality? Reading through the intellectual trajectory of these ideational developments stipulates a few causal explanations. Most significantly, Paul’s conviction had envisioned each individual with a moral freedom to act as per the judicious commandments of love, reciprocity and equality: ‘Love thy neighbour’. Only a human agency premised on the right intentions of love and reciprocity could have produced a truly compatible version of substantive human equality as encompassed in the idea of ‘care of souls’. But Augustine’s subsequent naturalisation and centralization of the imperfect hedonistic nature of human agency led to the conception of a will which was essentially premised on self-love. This eliminated the possibility for creating anything more than a mere abstract or formal equality amongst hedonistic free wills.
With the result, Augustine’s call for disengagement or an ‘otherworldly attitude’ dominoed over centuries to raise questions regarding the grounds for an individual’s moral obligation. This crisis was exaggerated further through the fourteenth and fifteenth century nominalist arguments of Henry of Ghent and Dun Scotus who, following Augustine, made the requirement of just intentions (entailing reciprocity and equality through love) merely optional in articulating their defence of an individual’s absolute autonomy. The ultimate objective of justice [termed as the natural law] was now re-oriented towards protecting each individual’s absolute right to make conscientious mistakes in search of one’s inner convictions. Correcting one’s mistaken beliefs and actions was a matter of self-discipline and could not have been externally enforced ‘from above’ on the basis of any commonly applicable notion of the ultimate moral Good. This assertion was rooted within the nominalist claim that inner convictions arise as individuals rationalise their subjective experiences of the world gained through the exercise of their absolute agency. Beliefs and experiential reality of individuals were therefore rendered as mental constructs, while ideas of justice and equal moral obligations were internalised within an individual’s rationalising ability. As a result, the possibility for devising a collectively applicable vision of an ultimate Good which could substantially tie absolute human autonomy with claims for equal moral obligation began disappearing. Moral good was no longer dependent upon the experiences of the outer world. Its nature was contingent, hypothetical and subject to revision through more empirical evidence.
But, while this explains the contradiction between the competing claims of liberty and equality, the cause of their incommensurability within modern liberal democratic society stems from the fact that despite originating from the same theological intuition towards innerness, the plurality of secularised moral sources – ranging from dignity of disengaged rationality, providential order, nature, sentiments etc. – that have subsequently developed with the two dominant streams of Enlightenment’s rationalism and Romantic humanism have come to epistemically contradict and negate each other. For, in their need to eliminate any external source of motivation (like antiquity’s Reason or the role of grace), these secular intellectual traditions came to treat each individual’s inner moral depth as a source awesome enough to motivate action.
2.2. Situating the Problem of ‘Liberal Justice’ in Contradictions of the Rational-Expressivist Modern Self
Thus, on the one hand, the radical inwardness inaugurated by Descartes created a self-sufficient, detached, and atomistic notion of a responsible self who drew its source for moral action from within its capability of a disengaged rational self-control. This inwardness later developed into an extreme version of hedonistic atomism with the subsequent rise of social contract theories, utilitarianism and naturalism post the Enlightenment period, collectively calling for a disengaged procedural control of one’s innate hedonistic constitution in order to shape moral action. On the other hand, however, this mechanistic view of an individual came to be contradicted by the opposing demands emanating from the Montaignian trend towards subjective radical inwardness which celebrated the unique particularities of individual experiences. This version called for an opposite quest towards self-discovery and articulation through an immersion into one’s embodied feelings and sentiments. As Charles Taylor (2001, 184) notes in Sources of the Modern Self – The Making of the Modern Identity, “From the seventeenth century onwards there bursts on to paper a torrent of words about intimate thoughts and feelings set down by large numbers of quite ordinary English men and women . . .” in the form of confessional autobiographies. For, given that sentiments triggered one’s will to act, they provided the most authentic peek into the good one sought as per one’s unique constitution: “It is a search now for what I am, what I want and what I will to be for myself” (Puri 2022, 73). The resultant ‘three-sided individualism’ (as Taylor calls it) emerging during this early modern period not only demanded an ability to express and articulate the depth of one’s inner self, but also mandated a sphere of positive rights to be able to protect and conserve this unique nature independent of external moral sources. But, in the absence of any common background framework or ‘constitutive good’ to situate these assumptions, claims legitimising the rights of individuals on the basis of these radically inward moral sources were at best tautological and unstable. With the result, in modern societies “people are often at a loss to say what underpins their sense of the respect owed to people’s rights” (Taylor 2001, 93).
Theorists have accordingly felt a pressing need to consistently articulate and defend how their preferred moral source can substantiate an individual’s moral obligation to uphold the liberty and equality rights of another independent of one’s personal desires/needs. Furthermore, since secular modern trend towards internalisation and subjectivisation of moral sources has completely negated the existence of any one ultimate moral Good, heterogeneous liberal-democratic societies have been compelled to maintain an equi-distance (touted as ‘freedom’) from all moral sources that compete for allegiance within the public space. This has created a moral vacuum within liberal-democratic societies wherein articulating the notion of ‘good’ becomes very difficult and problematic. Consequently, continuous attempts have been made to fill in this moral vacuum with the competing, rather incommensurate, epistemic claims of divergent moral sources that cancel out each other at their core.13 This has produced a contradiction amongst modern individuals regarding the rational limits of their moral obligation in tolerating the expressive-particularistic claims of others. This, in fact, has been a central argument of Charles Taylor’s work, wherein he states that there is an “[…] inner conflict in the modern subject – one between the tendency to radically individual (essentially disengaged) rational control and the power of expressive self-articulation involving lived experience – which both ‘complicates and enriches the modern moral predicament’” (Taylor 2001, 390). With the result that claims for justice within contemporary societies have constantly pendulated between procedural demands for disengaged objective impartiality (universal proceduralism) and particularistic demands for acknowledging unique embodied experiences (substantive differentiation). In fact, the liberal habit of premising this version of justice on an appeal for tolerance is also deeply problematic, for it is rooted in a condescending sense of discipline that exemplifies Foucault’s model of governmentality.14 Hence, the liberal solution of defining justice using the politico-legal language of free will, rationality and tolerance in order to mitigate the problem of incommensurability between the competing demands of liberty and equality appears to be merely superficial, contingent and brittle. For, at a deeper level, this promise of justice is symptomatic of an atomistic self which is extremely self-centred (i.e., deeply immersed in one’s own subjective experience – either rationally or phenomenologically) and incapable of viewing an impersonal reality.
The next section, accordingly, attempts to present an alternative definition of justice through a review of Iris Murdoch’s seminal philosophical work, Sovereignty of Good. Herein she claims that the prevailing trend within contemporary moral philosophy – notably behaviouralism, utilitarianism, existentialism and analytic philosophy – places an excessive emphasis upon the autonomy of an individual’s will and rational choice that has decisively negated the potential of individuals to conceive of an external moral reality outside of their egoistic (wilful) sense of self. Her alternative, in contrast, is to return to the role of ‘moral vision’ or ‘attentive perception’ of an external (independent) Good in shaping an individual’s sense of justice.
3. Justice as a ‘Moral Vision’: “‘Good’: ‘Real’: Love’”
It is significant that the idea of goodness (and of virtue) has been largely superseded in Western moral philosophy by the idea of rightness . . . This is to some extent a natural outcome of the disappearance of a permanent background to human activity: a permanent background, whether provided by God, by Reason . . . or by the Self.
– Iris Murdoch (1970,52)
A central assumption of Sovereignty of Good is that (contrary to the nominalist claim) “morality, goodness, is a form of realism” (Murdoch 1970, 57), and its role is to help individuals answer a simple question, “How can we make ourselves better?” Murdoch 1970, 76). In other words, to make sense of Murdoch’s moral philosophy, one must accept ‘reality’ as an end in itself and the pursuit of betterment/morality/‘Good’ is to be understood as a continuous quest for attentively perceiving this reality as it is. For an individual’s pursuit of seeing reality in its most ‘real’ form translates into a conscious attempt at freeing oneself from one’s personal fantasies or self-aggrandising distortions of the egoistic free will. Why this serves as a moral goal that helps individuals strive for betterment is because Murdoch concedes that the nature of reality is acutely complex and unfathomable, which makes the idea of Good an ‘indefinable’ teleological end of an individual’s moral striving: “Good is indefinable … because of the infinite difficulty of the task of apprehending a magnetic but inexhaustible reality.” (Murdoch 1970, 41) Hence, Murdoch’s understanding of the Good/morality as the ultimate moral source that ‘lies always beyond’ (p. 61), endows it with the attributes of necessary existence and perfection.
3.1. The ‘pointlessness’ of Good
Murdoch’s (2014) assertion that the Good is a “necessary existence” comes from her belief that, akin to the Platonic vision, it is an objective, eternal reality that exists as an independent and immutable truth because it transcends the construct of the human mind, social conventions, and contingent circumstances; it is independent of the human recognition and approval. Therefore, as inherent in the very fabric of reality, it is a fixed point of moral reference that provides an ultimate standard against which everything else exists contingently. This attribute of Good eliminates doubt and relativism for, “[. . .] the realism (ability to perceive reality) required for goodness is a kind of intellectual ability to perceive what is true, which is automatically at the same time a suppression of self” (Murdoch 1970, 64). In other words, it is only with a conscious suppression of one’s sense of self (uniqueness) that one can hope to attain an increasing awareness of ‘Good’ ,i.e., an increasing awareness of an underlying unity and interdependence of the moral world. For it allows individuals to overcome their inherent biases to be able to perceive the interconnectedness of all beings in their unanimous vulnerabilities (arising from the every-present possibility of death and chance). This fosters amongst individuals a deeper sense of empathy and moral responsibility as they come to perceive the intrinsic value of others, independent of their own goals and desires (given that one realises that every being is simply trying to survive their vulnerabilities). Murdoch (2014, 64) accordingly states that the more one realises “[. . .] that another man has needs and wishes as demanding as one’s own, the harder it becomes to treat a person as a thing”.
Hence, in her contention a “moral vision” of the Good ,i.e., an attentive vision of reality humbles one’s sense of self, and invokes a morality premised upon love and empathy for the other15. The code of conduct derived from this “morality as empathetic love” is always aimed at perfection and betterment, because (as already mentioned) suppression of the self in pursuit of reality as is remains an unending pursuit. With the result, two outcomes follow: one, this quest for Good as ‘moral perfection’ inspires a form of love that produces an increasing sense of direction for moral action, such that the love of moral perfection becomes “a natural producer of order” in human societies. Two, moral actions premised upon this love for perfecting one’s attentive vision of reality becomes characteristically non-possessive. As Murdoch (2014, 64) explains using the analogy of art:
[…] great art teaches us how real things can be looked at and loved without being seized and used, without being appropriated into the greedy organism of the self.
Hence, Murdoch surprisingly claims that a moral action inspired by the idea of Good “[. . .] has nothing to do with purpose, indeed it excludes the idea of purpose. [This is because] The only genuine way to be good is to be good ‘for nothing’ in the midst of a scene where every ‘natural’ thing, including one’s own mind, is subject to chance, that is, to necessity” (Murdoch 1970, 69). In other words, Murdoch (2014) argues that true goodness is “pointless”; it is detached from personal motives or pursuits of rewards, such that, to be good “for nothing” is to detach the logic of one’s moral actions from the rational calculations of personal gains, recognition, or from the egoistic self-pat of fulfilling one’s duty. Interestingly, this form of goodness ‘for its own sake’ is possible only when one fully recognises the contingency of human existence, given the vicissitudes of the natural world. For only when one chooses to act despite the nihilistic implications of the temporality of existence for one’s sense of self, can an individual actually claim to have acted truly from the love of goodness and moral perfection. She therefore states that the possibility for being morally good arises only through the aspiration for an exactness of vision ,i.e., an attentive pursuit of reality through the humbling of one’s sense of self. In other words, to be good is to love reality in its most real form: “‘Good’: ‘Real’: ‘Love’” (Murdoch 1970, 41).
3.2. Freedom, Equality & Justice: An Alternative Worldview
Now, what is the implication of this moral framework of Good as love for the real for an individual’s quest for equality, freedom and justice? How can it resolve the incommensurability between absolute freedom and substantive equality within liberal-democratic societies without reducing the meaning of justice to mere ‘tolerance’? To understand this, it is imperative to begin with a distinction that Murdoch draws between two versions of freedom:
Freedom is, I think, a mixed concept. The true half of it is simply a name of an aspect of virtue concerned especially with the clarification of vision and the domination of selfish impulse. The false and more popular half is a name for the self-assertive movements of deluded selfish will which because of our ignorance we take to be something autonomous (Murdoch 1970, 97).
Having identified these two halves of ‘freedom’ – one true and the other false – Murdoch’s moral framework re-situates the meaning of freedom from the contingent choices of one’s free will to a conscious quest for exactness or attentiveness in the perception of reality and the subsequent harbouring of a moral love which is ‘purposeless’ in the sense that it remains independent of one’s personal fantasy. “The freedom which is a proper human goal is the freedom from fantasy, that is the realism of compassion” (Murdoch 1970, 65). She accordingly defines freedom of action as the liberation of one’s motives from the fantasies of one’s will. For, once liberated from the will, such actions are rather motivated by an independent ‘moral vision’ of reality of individuals which comprises attention, love and humility. Furthermore, this selfless perception of reality reveals an underlying substantive equality amongst all individuals (owing to peoples’ collective vulnerability in the face of death and chance), the “[. . .] idea of a patient, loving regard, directed upon a person, a thing, a situation, [which this perception inspires], presents the will not as unimpeded movement but as something very much more like ‘obedience’” (Murdoch 1970, 39). Murdoch therefore reiterates the French philosopher and mystic, Simone Weil’s argument that ‘will is obedience not resolution’ (Murdoch 1970, 39, emphasis added).
Hence, within Murdoch’s framework, against an incommensurability between the striving for freedom and equality, it is the very pursuit of absolute freedom from one’s egoistic perception of reality, that produces a strong vision of substantive equality of all, such that actions of one’s free will arise out of an obedience to this ultimate Good, as an exercise of love. This is because Murdoch contends that an individual is not a product of one’s free will, but “[. . .] is a unified being who sees, and who desires in accordance with what he sees . . .” (Murdoch 1970, 39). Therefore, “By the time the moment of choice has arrived the quality of attention [what one sees] has probably determined the nature of the act” (Murdoch 1970, 65). Murdoch asserts that, “What should be aimed at is goodness, and not freedom or right action, although right action, and freedom in the sense of humility, are the natural products of attention to the Good” (Murdoch 1970, 69).This, then, is Murdoch’s alternative moral approach to liberalism’s politico-legal justice. Its nature, contrary to the liberal notion of rational discernment, is ‘pointless’. For it is equivalent to a quest for perfection towards an impersonal Good that determines the moral worth of individuals through the development of the right moral vision comprising of attention, love and humility. This conception of justice – which ‘connects goodness with attention to individuals’ (Murdoch 1970, 36) – does not evaluate the utility or dignity of ‘the other’ through a disenchantment or disengagement of the observing egoistic self from the world. Rather, by attentively indulging in an intimate affair with the unpredictability of reality from a humble, selfless standpoint, individuals come to premise their principles of justice upon an underlying sense of sameness stemming from their unanimous vulnerability: “We are all mortal and equally at the mercy of necessity and chance. These are the true aspects in which all men are brothers” (Murdoch 1970, 72). Her approach is accordingly a defense against a philosophical reduction of justice to a matter of balancing harms and benefits or exacting punishment proportional to the offense. Murdoch’s moral vision rather entails developing social institutions and practices that promote an environment where individuals are encouraged to see outside (not inwards) of their egos and engage with the world as it is out of a pure non-possessive love. She therefore equates the quality of an individual’s moral life or justice, with the quality of one’s attention.16
4. Conclusion
This paper argues that the crisis of ‘liberal justice’ stems from the perpetual incommensurability between the rights of disengaged rational-expressive modern selves who consistently question the legitimate grounds of their political obligation as liberal institutions tend to poorly address their subjective demands through rational procedures. To mitigate this problem, an alternative is proposed through Murdoch’s moral framework of restorative justice which addresses the importance of developing an approach to conflict resolution that integrates structural and institutional change with an individual’s moral and spiritual growth. This is because Murdoch’s justice stems from an alternative version of freedom and equality which pursues a liberation from one’s personal biases to see individuals as innately the same in their desire to survive their many vulnerabilities. Since this requires cultivation of empathy, attention, and a deep recognition of the humanity of others, it encourages individuals towards the virtue of ‘unselfing’ (Murdoch 1970, 82), i.e., towards developing a moral quality that focuses on reality without the distortions of self-interest, such that the “attentive perception” that is eventually attained helps individuals form a loving regard for the inherent worth of others. This view of justice then, not only arises from, but also aims to inspire love in the highest part of the soul; a love for personal perfection that invites a non-possessive contemplation of the Good by resisting absorption into the selfish dreams of the consciousness. Murdoch’s just individual is, therefore, a humble individual who ‘sees himself as nothing, [hence] can see other things as they are’ (Murdoch 1970, 101).
References
Brown, Wendy. Regulating Aversion – Tolerance in the Age of Identity and Empire. Princeton and Oxford: Princeton University Press, 2008.
Murdoch, Iris. Sovereignty of Good. London & New York: Routledge Great Minds, 1970.
Puri, Bindu. The Ambedkar-Gandhi Debate: On Identity, Community & Justice.Singapore: Springer, 2022.
Siedentop, Larry. Inventing the Individual: The Origins of Western Liberalism. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2014.
Taylor, Charles. Sources of the Self – The Making of the Modern Identity. Cambridge, Massachusetts: Harvard University Press, 2001.
Book Reviews
Criminology Goes to the Movies: Crime Theory and Popular Culture
Book: Criminology Goes to the Movies: Crime Theory and Popular Culture by Nicole Rafter and Michelle Brown, New York University Press, 2011, 236 pages, ISBN: 978-0814776520, Rs. 2589
A layperson’s most customary induction to the meaning, consequences, and perception of complex crimes is often through popular media. Though these tinselling representations of crime often become a matter of interest for cultural studies and media scholars, seldom do academics in criminology find these cultural productions worthy of scholarship. The relevance of cultural criminology as a field of study comes from its keenness to explore this often overlooked “convergence of cultural and criminal processes in contemporary social life” (Ferrell 1999, 395). Nicole Rafter, a Feminist Criminology professor at Northeastern University, was one of the first proponents of the subject matter to survey the intersection of crime and cinema through her 2007 study titled Crime, film, and criminology: Recent sex crime movies. In the same year, through her book Criminology Goes to the Movies: Crime Theory and Popular Culture, co-authored with Michelle Brown, she went on to question the imperious apprehensions and puritanical prejudices of mainstream criminologists. Through the work, the authors present a subversive spin to the discipline where popular culture meets criminological theories- popular criminology. Rafter defines this branch of discipline she began as a discourse parallel to academic criminology, and of equal significance.
The book has twelve chapters, each of which deals with important streams of thought in criminology, such as rational choice, biological, psychological, social disorganisation, strain, social learning, labeling, conflict, feminist, and life course theories. These conceptually dense theories are explained in relation to some of the most well-noted Hollywood crime movies of all time in order to make them look more alluring to the readers. Thus, the authors highlight and celebrate the “dynamic, fluid, plural, and accessible” (Rafter and Brown 2011, 1) nature of crime theory, which is inherently connected to the daily lives of ordinary people. For example, in chapter six, Rafter and Brown illustrate various strain theories developed over time through the movie Traffic (2000). As a researcher who has no academic background in criminology, strain theory has always intrigued me with its immensity. The pedagogical approach adopted by the authors proved very functional while reading the book as a humanities student who has little to no acquaintance with criminological concepts such as Merton’s Modes of Adaptation. By using a movie such as Traffic, which features a huge number of characters from various walks of life, all five possible modes of adaptations, as well as their relationship with cultural goals and institutionalised means, are elucidated elegantly.
Being one of the seminal works in the nascent area of popular criminology, the book is setting the ground for aspiring researchers by laying out a framework for applying the academic theories of crime in popular cultural sites, especially cinema. The relevance of the work comes from the inseparable nature of society from the media, as well as the mutually symbiotic relationship between real-life crimes and their representations. In this mediated age of twenty-four-by-seven news channels that pry upon the market value of a sensational crime story and life-like depictions of violence on screen, it is often strenuous to differentiate whether the media is mirroring reality or vice versa. While many of the crimes that receive media attention (especially murders) inspire many cultural productions, including true crime podcasts, documentaries, and movies, there also have been instances of real-life criminals getting influenced by the modus operandi portrayed in a crime movie or series. Apart from this confusing terrain of the hyperreal existence where reel and real are intertwined, Rafter and Brown also stress how cinema becomes an important tool of study for criminologists because of its unique ability to project the cultural anxiety surrounding a particular crime. In Chapter 8 of the book, they refer to the 1980s moral panic over recurring cases of child sexual abuse in the United States of America while speaking about the true crime documentary Capturing the Friedmans and the labeling theory. Echoing the opinions shared by the thinkers such as Stan Cohen and Stuart Hall, the authors also try to analyse the nature of the shifting media environment that redirected the investigation against the Friedmans. While acknowledging the success of the chapter in explaining various aspects of the labeling theory, one has to address its failure in indicating the difference in impacts made by a crime movie and a true crime documentary on the audience. As the only true crime documentary analysed in the book, Rafter and Brown could have referred to the features of the genre.
At the same time, it is also to be noted that the book’s focus on the theories of crime does not come at the cost of absolute denial of the technical language and the “cinematic nature of the medium of the film” (Young 2017, 87). Especially during the analysis of movies considered classics such as Psycho, City of God, Taxi Driver, and Thelma & Louise, the authors have made some conscious attempts to keep this promise they have made in the introduction not to overlook “[the] cinematic nature of the medium of the film” (as quoted in Rafter and Brown 2011, 9). Thus, the book becomes an interesting read for students of criminology, especially the researchers who work at the intersection of crime and cinema.
Reading Criminology Goes to the Movies as a South-Asian scholar who specialises in the popular representation of crime within the geographical landscapes of India often left me to wonder about the South Asian scholarship in criminology. How do some of these Western theories function for a post-colonial nation that houses a population that had been systematically oppressed and criminalised for centuries by foreign invaders? Both the criminal behaviours of the post-colonial Indian subject and its cultural representations are deeply enmeshed in a complex network of class, caste, gender, and region. A classical example is Phoolan Devi, the Indian dacoit, whose criminality is rooted in the strains and stress of manifold marginalisations she faced throughout her life. When it comes to cultural productions, Delhi Crime (both seasons 1 and 2), Darlings, Karnan, etc., are some examples of films that look at crime through an intersectional lens. Another complication that has often been featured in many of the Indian television crime shows like Sansani, Vardaat, etc., and which several of the Indian crime movies do not hesitate to delineate, is the nature of Indian crime as a melodramatic event with moral corruption at its heart (Ibrahim 2015, 344). Nicole Rafter and Michelle Brown’s book, thus, unintentionally points toward the lack of a South-Asian, especially Indian, perspective in the intersection of popular culture and academic criminology. This apparent sightlessness maintained by the Western academia of criminology is definitely a possibility for further study for Indian scholars of not only criminology but also popular culture.
Visual is the standard routine of a hypermediated world where the boundary between facts and fiction is blurry and indistinct. Written and visual accounts that are centred around violence or crime have been relegated to the margins as meaningless pulp narratives since time immemorial. But what makes these much-loved narratives of blood and gore non-negligible is the multiplicity of meanings they carry within themselves to disseminate over time and place. This fluid as well as subjective spirit carried by cultural productions, including movies, places them in direct contrast with the concrete and objective nuclei of academic criminology. Combined together, this is one of the most overlooked academic crossover brimming with scholarly possibilities. Thus, the book Criminology Goes to Movies: Crime Theory and Popular Culture is not only imposing the theories upon movies for pedagogical advantages; rather, it has inspired a streak of academic research that explores the convergence of popular culture and academic criminology. So, instead of addressing it as a dubious pedagogical experiment in mainstream criminology, I would approach it as a promising sign board that can lead researchers towards novel possibilities in cultural criminology.
References
Ferrell, J. “Cultural Criminology”. Annual Review of Sociology, 25, no.1 (1999): 395-418. https://doi.org/10.1146/annurev.soc.25.1.395.
Ibrahim, Amrita. “The Not-so-happy Ever After: Crime as Moral Corruption in the Family in Hindi Television News.” Contributions to Indian Sociology 49, no. 3 (2015): 344-368. https://doi.org/10.1177/0069966715593825.
Young, Alison. “The scene of the crime: Is there such a thing as ‘just looking’?.” In Cultural Criminology: Theories of Crime, edited by Jeff Ferrell and Keith Hayward, 249-264. London: Routledge, 2017.
Stalled Wheels of Justice
Book: Stalled Wheels of Justice by Shishir Tripathi, Noida, BlueOne Ink Pvt. Ltd., 2024, Rs. 499, 161 pages, ISBN: 978-81-967375-3-5, Paperback
The notion of justice in itself connotes fairness and justness for all, but this idea becomes meaningless when justice becomes inaccessible for victims in a society. Shishir Tripathi’s Stalled Wheels of Justice is an account of the various ways and reasons that obstruct the justice system in India. Major reasons behind the obstruction can be, inter alia, the interminable list of pending cases, misuse of the law to forge cases, the poor state of judicial infrastructure, and the cost of access that prohibits an ordinary man’s route to the court. The author has meticulously referred to real-life cases and judicial hearings, from India and abroad, that fall within the jurisprudence of the civil and criminal laws, to show how justice is “expensive, evasive and elusive” for an ordinary citizen (3). The notion of justice is examined both as a political philosophy and as a virtue of a social institution (like a court) through the writings of Plato, Amartya Sen, Norman Barry, John Rawls, Mahatma Gandhi and Michael Sandel. The book does not present any unfamiliar information about the causes of delay for someone acquainted with the basic system of Indian law. Yet it is interesting for a reader, because it embeds extremely relevant factual information about the justice system into the debates that surround its inaccessibility. Tripathi ponders upon the inaccessibility of justice in all its forms – “social, economic, and political”, as enshrined in the Constitution (135). This compels a reader to understand justice beyond a mere philosophical concept and the nature of roadblocks faced by an ordinary citizen when seeking justice in practice.
Tripathi sets off the book with the famous axiom, “Let the law take its course”, debating whether the current circumstances in the country allow justice to truly prevail or not (1). This is to recognise the fact that the prevailing trajectory is awfully slow for a common man and to reiterate that “justice delayed is justice denied” (92). The author views it as a violation of the citizen’s fundamental rights and democratic values, which were inspired by the vision of our freedom fighters. For example, Gandhi’s notion of Ramarajya envisioned that even “the meanest citizen could be sure of swift justice without an elaborate and costly procedure” (134). The book is divided into seven chapters, with the first four chapters extensively illustrating the challenges that stall the wheels of justice in India, while the last three focus on the remedies that could possibly help in making amends, if not entirely rectifying the issues. The core problem identified by Tripathi is the long pendency and backlog of cases as he quotes sources like former Judge VV Rao from 2010 and the 2018 published NITI Aayog strategy paper that amounts the current backlog to be cleared in about 320-324 years (125). It is distressing to realise the majority of the litigants in the said cases would not even be alive to witness if justice was delivered. The author strives to discuss the obstructions that further add to this backlog every single day.
The most pressing issue connected with the backlog is the delay in the process of justice resulting from tedious paperwork, erratic court hearings, lack of implementation of relevant procedures of law, etc. The first chapter, “Justice Delayed, Denied”, presents these issues of delay citing case studies that took almost 30 years to deliver final judgements. While the course of time is an evident concern, its implications on the lives of the accused in terms of their social reputation (at times, even costing their own lives) are inadmissible. For instance, Tripathi discusses the case of Umakant Mishra, a postman accused of stealing 57 rupees and 60 paise from a money order in 1985 (15-16). Although Mishra was acquitted in 2013 after a long battle of 29 years, he spent his entire life labelled as a thief among his community members. The repercussion is the heavy cost of justice that the author discusses in the second chapter of the book. Ceiling-high fees of the advocates are often unaffordable for a common man, and “the economic barrier does play a significant impediment to access to justice” (48). The consequence of these two factors, namely the heavy cost of justice and the delay in the process, often erodes the faith of the public in the justice system itself. While big corporate houses or celebrities can afford reputed lawyers charging crores for a single hearing, justice becomes inaccessible for ordinary people who constitute the majority of the litigants. Tripathi cites the example of the case of the famous actress Kangana Ranaut, whose house was illegitimately demolished by the Brihanmumbai Municipal Corporation (BMC) in 2021. In order to defend itself, the BMC paid a total of Rupees 82.5 lakhs to its attorney, even though the case was decided in favour of Ms Ranaut (57). As a reader, it makes me wonder about the resources that allow government departments like the BMC to afford these high costs. Although guidelines recommending capping of fees have been pushed through on several occasions, they have rarely met with any success.
The access to justice is further compromised when laws are misused by certain parties towards their own benefit. In the third chapter, “Misuse of Law, Travesty of Justice”, the author references the two commonly misused laws of Section 498A and 376 of the Indian Penal Code (IPC) that concern the matters of dowry and rape, respectively. It is emphasised that while these provisions were made to protect vulnerable women, they have often been misused to punish or tarnish innocent people. The author observes that the misuse of law often replaces the presumption of innocence with the presumption of guilt for the accused, and the principle of delivering justice to one innocent person, even at the cost of ten guilty persons, becomes a challenge for a fair trial (78). Such instances not only add to the rising number of cases, but also cause a waste of the judiciary’s valuable time. The value of time becomes more pertinent when access to justice is hindered owing to poor judicial infrastructure. Chapter 4, “Infrastructural Woes”, highlights that the problems of limited budget, lack of adequate physical space and facilities in judicial complexes, along with insufficient human resources supplement the delay in justice. Tripathi records the Law Minister informing the Rajya Sabha in 2021, that about 26 percent of the courts in the country did not have a separate toilet for women (90). As a reader, one is urged to wonder more about the social barriers faced by women inside the court and if the physical infrastructure already inhibits their access. Although there exist government schemes that target better judicial infrastructure, the lack of accountability prohibits proper implementation of such schemes. Addressing this concern, Tripathi suggests that, “In the age of machine learning, the judiciary need not be a Remington typewriter; it needs to be sophisticated, tech-savvy, and driven by the zeitgeist of high productivity” (100).
The last three chapters focus on remedies such as the right to free legal aid, the subject of Public Interest Litigation (PIL) and alternate dispute redressal mechanisms like Lok Adalats, which ease the burden of delay on the judiciary and prevent the heavy cost of justice for the poor people. For example, the Legal Services Authorities Act provides for free legal aid for targeted sections of society to improve their access to justice. Similarly, the provision of PIL has led to several landmark judgements that addressed issues of workplace sexual harassment or decriminalising homosexuality. However, this is not to say that these remedies have resolved all the problems associated with the Indian justice system or that they haven’t been misused in many instances. Nevertheless, they can be considered smaller steps in the direction of tackling the bigger problem of pendency and delay of justice.
Tripathi, in the book Stalled Wheels of Justice, recognises that these wheels are moving, but “they move at their own pace”, given the discussed issues (1). As a court reporter covering legal issues for prominent newspapers, Tripathi’s strength lies in uncovering these vital issues in the book through his simplistic style of writing, and yet substantiating his arguments with relevant cases and statistics from recent national surveys, press articles, original court hearings and valued opinions of sitting advocates and judges of the Supreme Court and High Courts across the country. It is a well-researched critique that has inculcated the various ideas of justice from Rawls, Sandel, Gandhi and Sen, but at times, the lengthy quotes from judgements or the cited laws and terms can be complex for a novice. Moreover, the academic nature of the book can make it feel very repetitive in terms of the angles of injustice explored in the book. Personally, I found the book immersive for the range of historical to recent contexts that draw attention to the grave inadequacies that smudge the Indian justice system and require urgent policy and practical interventions. But, I am left wondering if the recent introduction of the three new laws, Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam, that have replaced the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act respectively, will serve the purpose of improving access to justice.
The Mothers of Manipur: Twelve Women Who Made History
Book: The Mothers of Manipur: Twelve Women Who Made History, Teresa Rehman, Zubaan Publishers Pvt. Limited, 2017, 196 pages, ISBN – 9384757764, 9789384757762, Rs. 495
Since the 1980s in Manipur, numerous crimes and injustices have been carried out under the Armed Forces Special Powers Act (AFSPA)(1958). The AFSPA, a counter-insurgency act, grants authority to the armed forces in ‘disturbed areas’ to use force against anyone who violates the law or conducts arrests and searches without a warrant. Other than the alleged 1528 extra-judicial killings, one gruesome injustice was the case of rape and murder of Thangjam Manorama Devi. It was followed by the infamous nude protest by the twelve Ima (mother) before the holy Kangla Gate on 15th July 2004. It was a spectacle that sent shock waves worldwide.
AFSPA is a parliamentary act, that is, a state-sponsored privilege and simultaneously violates numerous international human rights laws, including the right to life, protection against arbitrary arrest and detention, and freedom from torture and cruel, inhumane, or degrading treatment. It also denies the victims the right to seek justice and compensation for the harm they have suffered. There were non-violent protests against the Act, in the form of bandhs, blockades and strikes, but they proved to be futile (Bhattacharyya 2016). The people of Manipur suffered many brutalities- unlawful arrests, killings, kidnappings, custodial torture, and sexual acts of violence, at the hands of the armed forces in the name of maintaining public order. Thangjam Manorama Devi’s murder was the breaking point for the people of Manipur. The heinous way Manorama was murdered drove the women to demonstrate through a naked protest. Manorama was one among the thousands who fell victim to the AFSPA. Manorama was accused of being a PLA (People’s Liberation Army of Manipur) activist and was picked by a group of 17th Assam Rifles cadres from her home at Bamon Kampu on 11th July 2004. The next day, her dead body was found, and she was shot 16 times in her vagina after being raped. The perpetrators evaded any responsibility or accountability on the pretext that she was a ‘suspected militant’.
Teresa Rehman’s book, The Mothers of Manipur: Twelve Women Who Made History, traces the stories of the twelve women who demonstrated against the paramilitary’s crime on that fateful day. Rehman is an award-winning journalist based in the Northeastern region of India. In her book, she narrates through interviews with the twelve women, how they came together to perform the naked protest and what happened to their lives in the aftermath of the protest. The book begins with a narration of the events that led up to the protest. The narration of Ima’s stories takes place through twelve chapters, each dedicated to one of them. Rehman highlights intricate details about all the accounts where she went to meet the twelve women, from the market to their homes, spending hours with them. As she visits each of them, she also brings out the opinions of the family members and dives into the narratives of their activism.
The pivot of the naked protest was motherhood. In protesting against state-sponsored crimes against civilian life and property, motherhood became one of the avenues to enter the political space. The protest sent a message that they were Manorama’s mother and, through the naked body of the mother, carried both the message of shame and forced the state to recognise the vulnerability of women in armed conflict. They challenged the full impunity that AFSPA granted to the armed forces despite their crimes. While capturing the emotions felt by the mothers in staging the protest, some of the Ima felt that disrobing was necessary to stage such a protest and felt no shame; others did so afterwards. However, none regretted staging the protest; they all viewed it as imperative for their concern for the future generation. Ima Ibemhal (Chapter 01) expressed how much enaphi (shawl-like, an upper garment)and phanek (sarong-like, a lower garment) mean to a Meitei woman. All these Ima and the Meitei women find modesty in adorning themselves with enaphi and phanek. The core notion of the protest was to shame the perpetrators back by taking authority over their bodies, bodies that reside in a place where they have no liberty.
Further, Rehman notes that violence had plagued the lives of the mothers, with a few of them growing up during World War II, like Ima Ramini (Chapter 02) and Ima Mema (Chapter 04). However, the violence caused by AFSPA is the most brutal in all its senses because their own country has allowed these brutalities. What do people do when the system put in place to protect them ends up attacking them? This Act has either directly affected their lives or has forced them to witness people who are victims of it. Ima Mema (Chapter 04) strongly opines that “The act is the cause of all our other problems, including social evils like drug and alcoholism, which is destroying our youths” (44).
The book achieves much in bringing to light the circumstances of a civil protest in the face of state brutalities. It should also be commended for bringing out the complex nature of the political movement itself. Rehman notes how the Meira Paibi (a women’s social movement against society’s injustices) were selective about their activism, highlighting their cause’s drawbacks. There are hardly any cases where Meira Paibi has protested against the underground groups for any gendered crime. This sense of solidarity only in specific situations undermines the claim that they are for all the women in Manipur (24). The book also highlights Ima Keithel (women’s market), which is the meeting place with Ima Ibemhal(1),and a place for mobilising. It can be arguably referred to as a public sphere exclusively for women. It is a space where women are exposed to all kinds of information, from political to the trivial. Whenever there is a protest in the state on any socio-political and cultural issues, women at Ima Keithel are known to be at the forefront of it. Ima Keithel is seen as a symbol of women’s empowerment. However, a considerable number of women who run the market are subjected to domestic violence at home. As observed by the local newspaper editor, Rajesh Hijam, “… If they are late, they are beaten up by their husband and often accused of having an affair. They also have to be home in time to cook dinner for the family. Often, their husbands snatch away their day’s earnings!” (3). This implies the deeply patriarchal structure of Manipur. It is interesting to observe how an image of women empowerment is being painted in the name of Ima Keithel, Nupi Lan (women-led war)and Meira Paibi, but the subjugation and oppression done in the confinement of the four walls of the home is hardly addressed.
Although the book is undoubtedly a biographical narrative and biographies are bound by the narrator’s perception, the narrator must be sensitive to the context of the culture that they write of. For instance, she writes, “…my mind goes back to Mahabharata, and the angry Draupadi..” (142), randomly linking the struggle of Irom Sharmila with Hindu mythologies. The Vaishnavite faith certainly influences Meitei society, but significant elements of it remain within the cosmology of the indigenous religion, which the author completely ignores. This was shown in how Rehman constantly describes the Vaishnavite practices and rituals performed by the mothers, but no mention of everyday practices relating to the indigenous faith was found. Total exclusion of the Indigenous faith’s practices does not capture the reality of a Meitei household – the ones to which the ema belongs.
In conclusion, Rehman has done an impeccable job of narrating the biographical accounts of the twelve mothers. This book is the first one of its kind where the focus is solely on the personal lives of the twelve mothers. Literature which exists around the protest has not taken into account in viewing them personally; they have clubbed these women as one whole. Rehman gets into the personal narratives and backgrounds of the twelve mothers and brings up what drove them to demonstrate such protest. The spirit of resilience and defiance shown on 15th July 2004 is reflected in the book. Her book has done a remarkable job of making the broader audience aware of the brutalities committed in Manipur by the draconian AFSPA.
References
Bhattacharyya, Rituparna. “Living with Armed Forces Special Powers Act (AFSPA) as Everyday Life.” GeoJournal 83, no. 1 (2018): 31–48. http://www.jstor.org/stable/45117478.
Translating Homosexuality as Crime: Reading Ugra’s Chocolate
Book: Chocolate and Other Writings on Male Homoeroticism by Pandey Bechan Sharma, translated by Ruth Vanita, Duke University Press, 2009, 152 pages, ISBN: 978-0822343820, Paperback, Rs 2015.
One should not expect literature to be an exact mirror or have a one-to-one relationship with objective reality—the mimetic fallacy— but the historian or critic can find it extraordinarily useful. It is a response to reality, whether by reflection or reaction.
-Allan Pasco
It is often said that love knows no boundaries. However, love has frequently been one of the most contested topics. Love is not a rather simple idea or entirely a matter of personal choice. Instead, it brings with it society’s entrenched notions of caste, class, gender, and other boundaries, which are crucial for maintaining dominant hierarchies and structures. With the arrival of colonial powers in the subcontinent, the dynamics surrounding same-sex relationships in India underwent significant changes. The imposition of Victorian values and British laws criminalising homosexuality had a lasting impact on Indian society, contributing to the stigmatisation and marginalisation of same-sex relationships (xxxi). In 1860, Thomas Babington Macaulay, the first Law Minister of British India, criminalised “unnatural sexual behaviour” under Section 377 of the Indian Penal Code, making it punishable by life imprisonment, a term of up to ten years, or even death, along with a possible fine. (Mondal 2021, 3)
British colonial discourse redefined the fluidity of sexual expression in pre-colonial India by framing Indian homosexuality according to Western ideas of inherent degeneracy, portraying it as a sign of native perversion and inferiority. (Ruhnke 2016, 25-26) These efforts were also intertwined with British gendered perceptions of India as a feminine chaos in need of rescue by the chivalrous West (Banerjee 2003, 170). Consequently, Indian men became increasingly conscious of and concerned about the redefined notions of masculinity imposed by colonialism. These historical processes had a significant impact on society, leaving a lasting imprint on the literature of the period when the struggles against colonialism were brewing.
When examining homosexuality in Hindi literature, Bechan Sharma Ugra’s “Chocolate” is a work that cannot be ignored. Chocolate is a collection of eight short stories, first published in the magazine Matvala in 1924; it waslater expanded to include three additional stories and published as a book in 1927. Including the titular story “Chocolate,” other stories such as ‘Kept Boy’, ‘Discussing Chocolate’, ‘We are in love with Lucknow’, ‘Waist Curved Like a She-Cobra’ and ‘In Prison’ explore themes of male homoeroticism. Ugra describes his work as “undiluted quinine” in contrast to “sugar-coated medicine”, claiming to engage in a crusade against homosexuality to expose and eradicate it (18). He argues, “If society preaches against and openly debates other sins, why should this sin not be preached against and criticised?” However, his critics felt these stories were poisonous. Banarasidas Chaturvedi, a famous author and editor of the literary monthly Vishal Bharat, categorised Chocolate as ghaslet (kerosene oil) literature due to its use of obscenity to appeal to specific audiences (xx).
Ruth Vanita’s translation of Chocolate is an important contribution as it preserves the text’s historical significance while making it accessible to a wider audience. In the introduction, she situates Ugra’s work at the intersections of literature, society, and politics of that period, highlighting how when Ugra was writing, the new Puritanism brought about by colonialism and homophobia was deeply entrenched across all sections of the national movement—from the Gandhian to the Hindu, the Muslim to the Communist—and thus among the urban, educated middle classes (32-33). Chocolate addresses many aspects of homoeroticism, but these are consistently framed within notions of unnaturalness, sin, deviance and crime. In many of Ugra’s stories in Chocolate, homosexuality is translated as a crime, with the legal system being depicted as responsible for eradicating it. For conflict theorists, crime often aligns with the attempts of the dominant culture to legalise itself and label any deviations as illegal. Accordingly, ‘the most powerful in society create definitions of normalcy and deviance that are favourable to and serve to protect their interests’ (Black 2014, 2). Thus homosexuality, being deviant from cis-heteronormativity, is labelled as a crime and stigmatised to maintain the status quo and reinforce the power of dominant cultural norms.
While Ugra’s work reflects puritanical homophobia, the effect of his writings cannot be interpreted in such a simplistic manner. During the first phase of nationalism, when British standards increasingly influenced Indian society, there was a concerted effort to reform society according to Western norms. Many of the stories in Chocolate reflect these sentiments, highlighting the attempts to save young boys from the perceived dangers of homosexuality. But despite his harsh stance, Ugra’s work provided a rare space for the discussion of male-male eroticism, offering a glimpse into a taboo subject in a repressive era. In a way, the silencing of non-heteronormative expressions due to colonial impositions and criminalisation is countered by Ugra’s active engagement with the subject. Homosexuals are not silent but have a voice in Ugra’s writings. This is evident from Vanitha’s observation that many male homosexuals received his work with delight. (18).
However, reading Ugra’s Chocolate from the twenty-first century can indeed be disturbing, as it challenges contemporary progressive politics. Ugra astutely warns us, “It is hard to find a speaker of or a listener to unpleasant truths.” The titular story, “Chocolate,” sets the tone for the rest of the collection by firmly establishing the author’s position to expose the perceived evils of homosexuality that society fears to confront. The story centres on Dinkar Babu, who is deeply in love with a boy named Ramesh, referred to as ‘chocolate’—a term used for “innocent, tender, and beautiful boys of the country, whom society’s demons push into the mouth of destruction to quench their own desires.” The author argues, “This chocolate disease is spreading in our country faster than plague or cholera. Society sees it all but pretends to be blind. People oppose prostitution and are angered by widow remarriage, but will not even mention this. Why?” (13)
Paul Boyce had identified that although prosecutions for sodomy were rare, “criminalisation nevertheless establishes a moral climate of sorts, with concomitant effects for same-sex sexual practice of that time” (Boyce 2006, 89). Ugra’s other stories, in turn, present even more brutal portrayals of homosexuality within this framework of legality and crime. In ‘Waist Curved Like a She-Cobra’, the protagonist calls the police during a party hosted by his homosexual friends to “straighten them out” (43). The notion of the police and legal system as guardians of morality—though often portrayed as ineffective—can be seen throughout Ugra’s stories. The protagonist, unable to find a solution on his own, ultimately relies on the police to intervene. Ugra’s focus shifts to a prison setting in his story “In Prison,” where he suggests that the legal system seems powerless to control or eradicate homosexuality, as he depicts criminals engaging in homosexual acts within jails. The author argues that when the system—whether it be the police or the judiciary—is itself helpless against this, the solution lies in religious and humanistic education.
In “Dissolute Love,” Ugra tells the story of Kalyanchandra, who is in a homosexual relationship with a boy. When the boy is caught by the police, he accuses Kalyanchandra of introducing him to the “sinful act.” Overcome with guilt, Kalyanchandra commits suicide, confessing that he had sown the seeds of “hell in his heaven” (66). In “We Are in Love with Lucknow,” we encounter a teacher who coerces his students into engaging in homosexual acts in exchange for passing them in their examinations (30). The story suggests that such sins warrant capital punishment rather than mere imprisonment In Ugra’s stories, the victims are often younger boys who fall into traps set by older men, whose lives become entangled with the legal system or are marginalised from the society. Criminalisation further intensifies this stigma, deepening their marginalisation. These portrayals, deliberately crafted to argue against homosexuality, complicate the reader’s ability to sympathise—whether with the immediate victims or those affected by broader societal stigmatisation.
It is interesting to note that stories beginning with expressions of same-sex love often culminate in the revelation that such love is neither natural nor accepted, and is portrayed as a crime within legal contexts. Those who profess this love are frequently depicted as exploiters leading society into morally questionable acts, and thus deserving of marginalisation. What remains evident in these stories is the persistent theme of love. Despite its often negligent or twisted portrayal, the concept of love itself endures. However, this idea of love soon fades as the author shifts focus to homosexuality as a crime deserving punishment.The Stories of Chocolate are not a feel-good, light read for leisure. Rather, they serve as a historical artefact, preserving and reflecting upon its era. The book is not entertaining; most of the stories lack development or character arcs and often read more like preaching, propaganda, or extended advertisements. It is also quite disturbing that none of the stories portray female homosexuality. One must ask why this is the case: Is Ugra himself avoiding a discussion on female homosexuality, thus contradicting his aim to address the “crime” openly? Or is it because talking about female homosexuality is taboo since society is often reluctant to acknowledge female sexuality as a matter of public discourse? Nevertheless, The Stories of Chocolate remains important as it preserves social mentalities across generations.
Bibliography
Banerjee, Sikata. “Gender and Nationalism: The Masculinization of Hinduism and Female Political Participation in India.” Women’s Studies International Forum. 26.2. (2003): 167-179.
Black, Pamela. “Conflict Theories of Crime” in The Encyclopaedia of Criminology and Criminal Justice edited by J.S. Albanes, 1-5. Wiley Blackwell: 2014.
Boyce, Paul. “Moral ambivalence and irregular practices: Contextualizing male-to-male sexualities in Calcutta/India.” Feminist Review. 83.1. (2006). 79-98.
Mondal, Abir. “Section 377: A legal and political outlook of India” Runas Journal of Education and Culture. 2. 1. (2021): 1-14.
Ruhnke, Lauren. “Constructing Native Homosexuality in British India.” Maneto Undergraduate Research Journal. 1. 1. (2018): 88-101.
Reading Pothichoru: Hunger, Crime, and Justice
Book: Pothichoru by Karoor Neelakanda Pillai, DC Books, 2016, 213 Pages.
By Mileena Saju
IPC Section 378: Theft.
Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
IPC Section 379: Punishment For Theft
Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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Karoor Neelakanta Pillai’s Pothichoru (Packed Rice/Tiffin) offers nothing less than life. This Malayalam short story leaves a lasting impression on the reader with its subtle engagement with reality and its nuanced portrayal of human experiences. The catharsis that it offers survives the ravages of “forgettings.” I had not thought of Pothichoru for years and cannot recall when I first read it—perhaps a decade ago. However, memory has its own ways of finding significance. I believe that there might be a reason why I still remember Pothichoru after all these years or why it endured the process of growing up, where new memories replace old ones. I would like to believe that the reason lies in its resonance with one of the most cruel aspects of the human condition: hunger.
Karoor Neelakanda Pillai was a phenomenal writer and a significant voice in Malayalam literature. He was part of the new wave in Malayalam literature of the 1940s modelled after the works of French realists like Maupassant and Flaubert (Pillai, 2019). Through his short stories, Karoor Neelakanda Pillai frequently raised his voice against a system that oppresses the masses and privileges the interests of a few over those of the majority. Pothichoru opens with a complaint from a student to the headmaster that someone has stolen his tiffin. Troubled by the theft, the headmaster personally interrogates each student, but no one admits to the crime. He emphasises the seriousness of stealing, stating:
“Stealing is a bad habit. If someone did this without realising, come forward, confess, and apologise. I will forgive you, and God will forgive you. If you hide your mistake, you may repeat it, becoming a bad child and eventually a culprit. Haven’t you seen the police catching culprits?” (152)
Despite his earnest plea, no one confesses.
That evening, the school manager receives a letter from the headmaster detailing the incident. The headmaster reflects on whether one of the students could have committed the theft but concludes that it couldn’t have been them. Later the letter reveals, “I did it. I, the headmaster, am guilty.” The headmaster is prepared to answer any questions and accept any punishment but asks, “What else could I have done?”(155)
The story ends with this question, leaving readers with a profound sense of sorrow. The headmaster, consumed by regret and guilt, points to his helplessness within the system. With a meagre salary of twelve rupees a month and eight mouths to feed, he often goes hungry. On that day, he hadn’t had food since the previous day. Famished, he took a student’s tiffin. Was it stealing? Was it a crime? Perhaps!
The story’s unexpected twist delivers a powerful shock in just a few pages, it is highly improbable that anyone would have anticipated the headmaster to have stolen a student’s tiffin. Yet, in the harshest phases of life, survival can result in one taking such desperate actions. From ancient times, stealing has often been termed a crime. In Hammurabi’s Code, the Ten Commandments, Jain and Buddhist principles, and other religious texts and moral codes, stealing is consistently condemned and regarded as a serious moral and legal transgression (IPC 378, 379). But, at the same time in popular culture, there also are those celebrated heroes like Robinhood, who steal from the rich and distribute it to the poor.
In Pothichoru, a troubling question arises: did the headmaster commit a crime by stealing? And if yes, what kind of justice should the student receive? It is evident that the real culprit here is not the headmaster but the systemic failure that led to such desperate actions. The core issue lies in the breakdown of the system that failed to provide adequate support, making the headmaster’s theft a symptom of broader socio-economic problems rather than an isolated moral failing. The headmaster is the real victim here. Karoor himself was a teacher who experienced poverty firsthand, and his stories reflect the challenges faced by teachers struggling to make ends meet. These stories are set in a time when teaching did not offer significant monetary benefits, well before the communist government introduced its revolutionary yet controversial education bill in 1957, which led to the Liberation struggle in Kerala.
Reading Pothichoru prompts us to confront profound questions similar to those explored by Jeyamohan in his powerful Malayalam novel Noorusimhasanangal: what truly defines justice? Is it merely a matter of adhering to laws and customs? ( Jeyamohan, 2022). Legally and religiously, the headmaster’s act of stealing constitutes a crime, and he should face the corresponding consequences. However, justice is far more complex than a set of codified rules or practices that can be handed down through generations. It encompasses a deeper understanding of fairness, context, and systemic failures, challenging us to consider not just the letter of the law but the broader ethical and social dimensions of justice.
The story also subtly carries elements of class consciousness. It hints at the distinction that exists between the haves and the have-nots. While there are no extensive paragraphs dedicated to class disparity, the narrative, through its subtext, clearly conveys that resources are unevenly distributed. The school manager is said to have received the letter after his dinner while enjoying his time listening to the radio —a detail that underscores his comfort and detachment from the economic struggles faced by others. A deeper reading of this moment reveals that the true issue at hand is not merely the headmaster’s theft but the broader problem of economic inequality.
The headmaster, though guilty of theft, is acutely aware of the constructed nature of his helplessness. His voice carries a blend of helplessness and dissent. His awareness of the unfairness of his situation and his courage to voice these concerns, despite knowing the repercussions, reflects a poignant critique of economic disparity. It is important to note that great revolutions begin from such realisations. What I admired most about this story is how Karoor did not portray the poor as mere victims of the system, suffering without complaints, but rather as individuals who are conscious of their conditions, who make choices that defy the system.
Pothichoru is an intense read, but it is at the same time simple too. That is the magic that Karoors’ writings often behold. The language he uses is simple yet striking. The story is free from embellishments or literary devices generally used to enhance the aesthetic appeal. It avoids unnecessary elaboration, focusing instead on what truly matters. But the voice is crystal clear. It is powerful enough to bring in revolutions.I would call Pothichoru a contemporary text. Even though this storyis set in a context that is far beyond our contemporary times, its significance remains undiminished. It was just a few years ago, more than half a century after Karoor wrote Pothichoru, a tribal youth named Madhu was lynched and murdered by a crowd in Kerala for stealing some provisions from a shop. This tragic incident highlights how, in the face of hunger, the margins of crime often become blurred. Hunger remains a pressing reality today (and will be tomorrow), and the system frequently turns a blind eye to such harsh truths. But narratives of hunger cannot be silenced. They will persist and eventually disrupt the entire system.
BIBLIOGRAPHY
Pillai, S. Devadas. Sociology Through Literature: A Study of Kaaroor’s Stories. London: Routledge India, 2019.
Jeyamohan. Noorusimhasanangal. Trivandrum: Sayahna, 2022.
NOTES
- Aishat Shifa vs The State Of Karnataka 2021 AIR SC 842 ↩︎
- The Commissioner, Hindu Religious vs Sri Lakshmindra Thirtha Swamiar 1954 AIR 282. ↩︎
- Asha Renjan and others v/s State of Bihar and others [(2017) 4 SCC 397] ↩︎
- Aishat Shifa vs The State Of Karnataka 2021 AIR SC 842. ↩︎
- Prabhupada, AC Bhaktivedanta Swami, and Bhaktivedanta Swami. Bhagavad-Gita as it is. (Los Angeles: Bhaktivedanta Book Trust, 1972) ↩︎
- Ibid ↩︎
- Ibid ↩︎
- The use of the term ‘West’ was found most representative only because Homer’s Odyssey formed part of the moral cultural literary milieu of medieval Europe. ↩︎
- Dante Alighieri,The divine comedy, edited by Robert M durling, New York:Oxford University Press, 1996, 55 ↩︎
- This paper will particularly focus upon the classical liberal, liberal-democratic, utilitarian, perfectionist, behaviourist and existential arguments. ↩︎
- A rational agent whose identity is based on continuous consciousness and personal experiences, rejecting innate ideas in favour of knowledge acquired through sensory experience and reflection. ↩︎
- This paper highlights ‘liberal secularism’ as a distinct version of secularism given that the former is mostly focused upon structural separation, such that it may or may not emphasise upon individual rights to the same extent, whereas the latter categorically justifies this separation by harping upon the primacy of protecting individual rights, personal freedom, and autonomy. ↩︎
- However, presently, the most acceptable approach seems to emphasise upon each individual’s unmediated, uninfluenced ‘personal commitment’ to form socio-political associations. Interestingly, the origin of this philosophical belief is also closely tied to the successive Protestant movements (especially Calvinist and Puritans) that varyingly recognised only that social order to be most stable which was brought about through a disciplined personal commitment of regenerated souls premised upon notions of responsibility and self-control. The ultimate moral objective of this social order was believed to be instrumental, i.e. to serve God’s purpose of preserving human happiness. Much as God deployed one’s self-love (the hedonistic instinct of the Fallen soul) to regenerate individuals, so can regenerated responsible souls establish a social order by instrumentalizing their self-love to strengthen personal commitment towards others. As is well known, Locke played a crucial role in secularising this theological claim and making the hedonistic human instinct for self-love and self-preservation as the basis for a universal socio-political order based on personal commitment.
Today, more normative variants of this approach are found in the formulations of Kant, Rawls and even Nussbaum, among others, such that in their own conceptual frameworks, each of these thinkers emphasis upon the personal commitment of rational humans as sufficient enough to sustain a socio-political order through logics of benevolence and compassion. For, these emotional/rational responses originate from their self-responsible autonomous reason which, in turn, is instrumentalized to perverse the larger order of things. The previously held role of grace in sustaining this social order has therefore been replaced with the instrumental reason of humans. ↩︎ - For an exploration of this argument, see Wendy Brown, Regulating Aversion – Tolerance in the Age of Identity and Empire.Princeton and Oxford: Princeton University Press, 2008 ↩︎
- I would like to draw substantive distinctions here between Murdoch’s approach and another seemingly similar framework of Martha Nussbaum (2001, 2013). While the latter also alleviates the role of emotions within her normative framework, Nussbaum remains entrapped within the aforementioned rational-expressivist tussle even as she attempts to somehow bridge this distinction. With the result, despite the centrality she accords to love and empathy, Nussbaum continues to view them instrumentally, as one possible moral source of personal good (as against the ultimate ‘Good’) to guide human actions. Hence, Nussbaum’s heavy reliance upon the rational potential of emotions remains arguably subjective and morally self-centered. This contrasts with Murdoch’s belief that true moral development requires a constant striving for ‘unselfing’, i.e. moving beyond personal feelings and desires to a more objective vision of an external Good. ↩︎
- Interestingly, Murdoch’s emphasis on perceiving reality as it truly is—independent of personal biases—to recognize the permanent existence of a transcendent Good that inspires purely unselfish love, ontologically parallels foundational assertions in classical Indian philosophy. In these traditions, primarily of Vedanta and Sankhya, attentiveness or ‘mindfulness’ to reality (prakriti) reveals its impermanence, contrasting with a more fundamental source of existence (Brahman, Paramataman, Siva, etc.). Consequently, individuals seek liberation by overcoming their erroneous sense of self, choosing instead to drive political/moral action out of love and duty detached from selfish ends. Furthermore, both philosophies tend to reject any public-private dichotomy when demanding morally disciplined action from individuals. For, Murdoch’s vision of moral improvement through selfless love of the Good influences all aspects of life, just as in Indian philosophy, the realization of higher truth and the practice of selfless duty (dharma) integrate seamlessly into both personal and public spheres. Hence, despite their underlying metaphysical differences, both perspectives converge to view morally disciplined actions as universal, permeating every facet of human interaction without being confined to either private or public domains. In fact, a comparative analysis of these frameworks to draw out alternative notions of justice serves as a rich arena for scholarly research. ↩︎
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