[Link] The Rule of Law

I critique the rule of law with reference to violence and its own history, pointing out that it has often been 'the voice of the immensely privileged codified in statute and subordinate legislation' in a piece that was published by Smashboard and later by Firstpost.

Extracts

"...the rule of law is not an egalitarian concept and its history demonstrates that it not underlain by gender neutrality. It may be possible to force it into another, less discriminatory mould more mindful of equality and individual rights but that would require recognising our current understanding of the rule of law for what it often is: an idea perpetuated by white men living in sexist societies themselves and forming the theoretical basis for the racial hierarchies which plague all of us today, often with their ideas being used to support economic drain and worse of countries primarily populated by non-white peoples.

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The Constitution of India promises individuals equality and dignity. However, that promise may well be betrayed by the rule of law if it is not structured to avert violence induced by such facets of one’s identity as gender, sex, and sexual orientation.

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Violence is unlikely to be eradicated in our own time but it can be contained, and it is legitimate to ask that the rule of law be structured to protect the most vulnerable amongst us. The most vulnerable are not just those who are poor but anyone who lacks the privilege of power which is, of course, most of us and women, upper class or not, in particular. After all, privilege is always relative, and persons who are abused invariably have less privilege than their abusers. If the rule of law is not structured to address the concerns of those with comparatively less privilege, its adoption would too often merely result in access to law and not in access to justice."

[Links] State Policy, Citizenship, and Patriarchy

In a two-part series, I explore the human rights implications of processes like the formation of the NRC with reference to my own story, the problems of patriarchy, and the burdens of history. 

Excerpts below:

PART 1: Concentration camps, citizenship and the burden of erasure in India

Issues of citizenship and belonging have always been fraught in India. We are a plural society that was irrevocably torn apart in 1947. As a legal construct, the Indian republic is a federation of states. As a social reality, we know affiliations to various sub-nationalisms, subsumed within a greater pan-Indian nationalism, to be a source of individual pride.

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We are not, however, a society that has consistently seen communal harmony. In recent history, British colonizers used a divide-and-rule policy to help cement their control over vast swaths of the Indian subcontinent.

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American photojournalist Margaret Bourke-White saw vast areas of Calcutta “dark with ruins and black with the wings of vultures that hovered impartially over the Hindu and Muslim dead” in 1946. The image of death approaching under the waiting, watchful eye of vultures was not new to Bengal, which had, at the time, barely recovered from a devastating famine, exacerbated by British policies, that took about 4 million lives. This was the same famine that prompted Leo Amery, then secretary of state for India and Burma, to compare Winston Churchill’sattitudes to those of Hitler.

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Photographs taken in the 1940s in the fenced hunger-cum-labor camps of Europe and in the fence-less hunger-cum-labor geography of Bengal are not always easy to tell apart. Ravaged bodies with ashen skin, regardless of their color, can look much the same in black and white.

We may only now be beginning to call the famine genocide, and recognize the lingering effects of Partition, but we know what to expect of concentration camps. And we know that their effects can be achieved simply with incendiary rhetoric and administrative action. They do not need fences or a fenced-off vocabulary.

PART 2: Nationalities and rights held hostage to documentation

Evading the past not only allows us to evade our shared histories but also the memory of the traumas we have all suffered in the process of the fragmentation of our identities and our lands. It erases tales of migration and assimilation, and it enables the development of constructs that alienate and perhaps even corral in forced-labor camps, if only in imagination, those whom we now consider “outsiders” who do not belong within our borders.

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In our own time, borders are often closed by documenting the people within them and recognizing them as citizens. The smallest unit of documentation is often not the individual but the household, particularly in relation to rations and fuel, which may keep women in the control of men who are listed as being the heads of households. Instances of women subverting the system to establish their own independent identities are the exception.

As a result, closed borders tend to reinforce often-violent patriarchy and disadvantage those not ensconced in privileged, socially approved familial structures.

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Leaving aside concerns about the “them vs us” narrative, experience has taught us that we have difficulty recognizing our own because of documentation issues, shared histories, close cultural ties, and common vocabularies.

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Given that the identification of those who qualify as citizens is no easy matter, there exists a constitutional imperative to ensure that laws deriving legitimacy from it do not flout the implicit guarantees it accords to individuals. That requires the development of legal processes that ensure that the most vulnerable among us are not sidelined. People cannot legitimately have their citizenship called into question simply because they find themselves without familial support. The cost of not submitting to violent patriarchy cannot legitimately be statelessness.

On Partition and Remembrance

So many of us have grown up hearing of crimson harvests resulting from the forced poppy cultivation which destroyed both China and vast tracts of India, and of the millions who died, often begging for rice starch, in the Bengal Famine. This is, of course, the famine which prompted Leo Amery, once Secretary of State for India and Burma, to compare Churchill to Hitler given that it was, in no small measure, the result of British policies that were implemented in India while he was Prime Minister. Bhaator maar, the Assamese called starch water. Kani khai bohi ase: he's sitting around having eaten opium.

The abiding image of the famine, to so many, is one of children dying under the watchful, waiting eye of vultures. That image didn't fade by the time of Partition. In her autobiography, Margaret Bourke White, the American photojournalist, wrote:

"For years, Hindus and Muslims had struggled side by side for independence from the British Raj. With freedom finally on the horizon, Jinnah masterminded the game so adroitly that within months he was to win his Pakistan. Jinnah announced what he called Direct Action Day: a We will have," he insisted, "either a divided India or a destroyed India."
On the heels of this announcement, violence broke out in Calcutta. I flew there from Bombay and found a scene that looked like Buchenwald. The streets were literally strewn with dead bodies, an officially estimated six thousand, but I myself saw many more. Scattered between bodies of men were the bodies of their animals. Countless cows, swollen with the heat, were as dead as their masters. In Calcutta, a city larger than Detroit, vast areas were dark with ruins and black with the wings of vultures that hovered impartially over the Hindu and Muslim dead. Like Germany's concentration camps, this was the ultimate result of racial and religious prejudice.
I did my job of recording the horror and brought the pictures out for Life, but the task was hard to bear. The terror in Calcutta set off a chain reaction which spread through the country and was equally devastating to both religious groups. Months of violence sharpened the division, highlighted Jinnah's arguments. On August 15, 1947, one year after the riots in Calcutta, a bleeding Pakistan was carved out of the body of a bleeding India."

The friction between Hindus and Muslims had been nurtured by the British through the divide-and-rule policy which they instituted for their own benefit. Unsurprisingly, it contributed to the August 1947 Partition which saw the country literally being divided along lines drawn on a map by an English lawyer, Cyril Radcliffe, who had stepped on to Indian shores a month earlier and appeared to know nothing worth mentioning about the country.

The comparisons between concentration camps and Indian traumas are well worn. Unlike Germany though, we do not deal in remembrance half a much as we should. We have no Erinnerungskultur, a Culture of Remembrance, to our own disadvantage. Those who do not remember the past are always at risk of allowing it to be repeated, after all.

The Partition of India still affects our national and nationalist ethos. It marks those whom we now consider foreigners. Forgetting the trauma of Partition also allows us to forget that we were once one people. It allows us to dehumanise those whom we now consider outsiders. It allows us to create constructs which facilitate separation.

We now live in a world where some spend their time looking for the least offensive ways to describe children in cages. Where almost every migration ‘crisis’ is invariably caused by an uninviting government supported by a xenophobic people. Ecuador, for the time being, seems to be an exception to the rule: it recently declared an emergency due to mass migration from Venezuela. Its crisis, however, wasn't declared to keep migrants out but to help them as they come in.

Inhumane xenophobia doesn't have to be anyone's default state of being. There are other options which we could follow especially given that our own history, in living memory, tells us that xenophobia and communalism can be catastrophic for everyone in their vicinity. The Partition is proof of that.

Where the Mind is Without Fear

On Independence Day, thinking of my mother's father who had been jailed during the Independence struggle and later became a civil servant. He died before I was born though he seems to have enjoyed poetry, and the first poem my mum ever paraphrased with me was one which her father had worked on with her: Where the Mind is Without Fear, by the Bengali Nobel laureate Rabindranath Tagore, still as relevant today as ever it was.

Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up into fragments;
By narrow domestic walls;
Where words come out from the depth of truth;
Where tireless striving stretches its arms towards perfection;
Where the clear stream of reason has not lost its way;
Into the dreary desert sand of dead habit;
Where the mind is led forward by thee;
Into ever-widening thought and action;
Into that heaven of freedom, My Father, let my country awake.

Tagore, of course, had returned his knighthood after the massacre at Jallianwala Bagh. He died just as the British were beginning to implement policies in the Bengal that would, by the end of WWII, contribute to the deaths of millions of Indians even as, in Europe, they did what in later decades they would come to ceaselessly advertise as a demonstration of their commitment to human rights and  justice which, it has to be said, many Indians saw no evidence of either then or earlier.

“In the case O’Dwyer vs Nair 1924 before the King’s Bench Division in London, the jury decided by a majority of 11 to 1 that General Dyer had not committed an atrocity at Amritsar’s Jallianwala Bagh, and Sankaran Nair, the defendant, was accordingly held guilty of libel,” Nandini Nair wrote in a profile of the man who had resigned from the Viceroy’s Executive Council after the Jallianwala Bagh massacre. “The sole dissenting juryman was none other than Harold Laski, the well-known political economist. Since the verdict of the jury was not unanimous, it was open to Nair not to accept it and seek a fresh trial. He chose not to do so, saying, “Who knows what another 12 English shopkeepers would think.” O’Dwyer offered to forgo the damages of £7,000 if Nair tendered an apology. He refused point-blank, even though it was a large sum.”

The Quit India movement began Around the time of Tagore’s death too; Naresh Fernandes describes how it was named in his book on Bombay: “In August 1942, as the Japanese seemed poised to invade India, Gandhi arrived in Bombay to address a meeting of the All India Congress Committee in Gowalia Maidan. The day before, he and his colleagues held a meeting to decide on an appropriate slogan to express their opposition to British rule. ‘Get out’, one suggested. Gandhi thought that too impolite. Another suggested ‘Retreat’ or ‘Withdraw’ but those didn’t find approval either. Finally, Yusuf Meherally turned to Gandhi with a bow and said, ‘Quit India’. Said Gandhi, ‘Amen’.”

Anti-trafficking Initiatives and Resurrecting Indentured Labour

(Note: This post is primarily about the intersect between the raid/rescue model & NRPFesque policies in the context of DV and the shape which laws governing the field could be made to assume in the future.)

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Indian trafficking law is a complex mix of constitutional law guaranteeing the impermissibility of the practice of human trafficking, criminal law, and labour law. It is consolidated nowhere but finds mention piecemeal across a number of statutes.

Criminal laws in the field have tended to try to protect trafficked persons (questionably, sometimes from themselves by refusing to acknowledge their ability to consent to acts in relation to themselves) while labour laws have generally tended to attempt to realise the hope of being able to engineer a more equitable society through the instrumentality of the law (with varying degrees of success, to put it mildly).

In consequence, Indian law has not thus far single-mindedly pursued a strategy of removal and rescue. That strategy is largely the brainchild of Western neo-abolitionism developed in consonance with philanthro-capitalism, and it can easily manifest as indentured labour redux with state complicity.

In its earlier avatar, the horrors of supposedly-legal indentured labour practised by colonial powers were experienced by colonised peoples particularly after the nominal abolition of slavery. In contemporary times, the model in vogue doesn't promote forced, unremunerated labour quite as blatantly. Instead, trafficked persons may be removed from the environs they find themselves in, ostensibly in support of their human rights, following raids possibly conducted by law enforcement. However, despite such removal, the country in which trafficked persons are rescued may not force traffickers to pay them adequate reparations or afford them adequate rehabilitation opportunities itself.  

Even if traffickers are jailed, at the micro level, retribution devoid of reparation does not immediately help trafficked persons to rebuild their world. And, at a macro level, non-payment means that, if the trafficked persons have crossed international borders and are subsequently deported (of course, at state behest), the money which they should have been paid likely remains in the country in which those who trafficked them have benefited from their unpaid labour, the country in which they were ostensibly rescued. Due to this, the “fight against modern slavery” could this easily resurrect one of the least appealing facets of what was once the coalition of colonialism and capitalism: forced, virtually unremunerated labour extracted from the world's least privileged people.

The problems which the raid and "rescue" model can potentially cause become exceptionally clear if persons are trafficked across international borders by those with whom they share a domestic relationship. This is simply because, should such trafficked persons report abuse and not have the necessary paperwork to remain where they are being abused without their traffickers’ aid, far from receiving support, they could well find themselves being deported perhaps to another abusive situation. And, so, the model could well disincentivise abused persons from reporting abuse and force them to endure in horrific conditions. In effect, the model has the potential to result in states setting up Rape and Assault Facilitation Services in the name of anti-trafficking operations or in lieu of immigration and border forces whether or not that is their intention.

Even where domestic violence isn't part of the equation, a person forced to work in a factory, for example, may be far better served by strong labour laws and, if required, sympathetic immigration laws which ensure humane conditions and fair pay for work should they want to continue working instead of being “rescued” and bring deprived of a job and, possibly, what little safety they have in the process. This chance that there could be alternatives to being “rescued” that trafficked persons may prefer is one which the largely-Western crusade against “modern slavery” has almost consistently failed to recognise much less facilitate.

Together, neo-abolitionism and philanthrocapitalism tend to exhibit enthusiasm to uni-dimensionally measure the success of anti-trafficking measures by counting "rescues" in the field of the messy, uncountable complexities of human life. What they display a distinct lack of enthusiasm for is the prospect of engaging with individuals, valuing their lives, listening to individual aspirations, and attempting to accord respect to the desires humans beings at the individual level so as to facilitate the best possible outcomes for them, outcomes which may not involve what could well be ham-handed rescues.

Unfortunately, the lines of thought which support the raid and “rescue” model have not been entirely contained within the West. India's proposed law on trafficking appears to pay homage to it. One can only hope that better sense prevails and that Indian strategies to address trafficking do not sink to the level of merely counting supposed rescues.