April 17, 2002
(Contribution to Seminar, May 2002)
NOTES ON HOLOCAUSTIAN POLITICS
Upendra Baxi
1. OUR VERY OWN EVIL
ëEvery people has had its particular way of going bankrupt; and certainly it does make a difference that for Germans it meant Hitler and Auschwitz, for Spanish it meant a civil war, for the French it meant VichyÖ in the end, what is crucial for us is only the new task that such a failure has bequeathed us. Perhaps, it is no longer even accurate to describe it, because there is no longer a people to undertake it. í
Giorgio Agamben, defining politics as means without end, may well be addressing for us the catastrophic carnage in Gujarat that marks our ëparticular way of being bankrupt.í It, too, must define our future tasks, without a ëpeopleí to undertake these.
Gujarat does not symbolize Nazi Germany, though Swami Agnivesh is a recent Star TV discussion was not too far wrong to suggest that it now emerges as a laboratory for theSangh Parivar governance experiments with human, and human rights violation, of minority communities. Nor does it quite mark the beginning or the middle of a civil war. And unlike Vichy, where French judges exuberantly justified deportation of Jewish infants to German camps , we have in place the Supreme Court of India and the National Human Rights Commission (NHRC) that somehow seek to arrest governmental and citizen lawlessness in the title of protection and promotion of human rights.
Yet the unfolding violence in Gujarat, resounding in other States, constitutes our own mode of production of radical evil. We many not fight this effectively unless we have some understanding of the practices of Indian politics as ëmeans without end.í
11. WAYS OF COMMUNAL GOVERNANCE
Gujarat brings home to us with poignant intensity the consummation of the practices of communalisation of governance. These manifold practices reach, at the end of the day, the same end: minority communities may exercise and enjoy only those basic human rights that the ideology of Hindutva may justify. Pre- Godhra, this signified relatively non-violent ways of subordinating minority rights; post- Godhra politics justifies governance as legitimate only when it facilitates organized majority vendetta against minorities. The Gujarat carnage sculpts an ominous principle of governance: the democratically elected government owes concrete duties to the dominant majorities to device ways and means that facilitate communal revenge.
The government then must for a while be immobilized. An undeclared emergency must suspend all basic rights of affected citizens. In the process, all emergency security services must be suspended. The fire fighting and ambulance services should only arrive at the scene of crime after houses are fully burnt and bodies fully charred. The police should remain passive bystander witnesses of bloody violent enactments. No hindrance may be posed in the way of proactive Hindutva citizens in incitement to violence.
This informal suspension of the rule of law constructs state - free political time and space for sustained violence but only for a while. For that suspension has a purpose: the production of minority communities as permanently endangered ones. The public pedagogy of communalised governance consists of three elements.
First, the inscription of the ëprincipleí of collective guilt and responsibility. The entire minority community must be made to ëpayí when some of its actors have, or are held out to have, perpetrated organized violence. Second, the affirmation of the right to retaliation by the members of the majority community. This ërightí is a kind of right to anticipatory communal self- defence; sufficient violence administered by the dominant community publics constitutes both forms of collective revenge and a massive message for future deterrence. Third, these twin principles fashion further ëprinciplesí that now mandate perfection of technologies of governance. Governance itself stands ëreformedí/ ëpurifiedí of any notion of constitutional secularism and invested with an activist role in the arousal of political passion, with all its manifest and standardless resultant use of force against a collectively personified ëenemy.í
This dense web of ëprinciplesí stands personified in the figure of the incumbent Gujarat Chief Minister and his ardent supporters. They obviously believe that this is the right way to perform politics. They say, loud and with a brutal clarity that the politics of ëminorityí protection must switch codes; there exists, according to them, inexorable duties to the dominant communities who feel endangered by the subservient ones. Governments ought to mete out raw political justice as and when the subjective opinion of those who rule so requires. The ethical essence of this Hindutva rule of law consists in the reworking of the majoritarian principle into a right to perform the purushartha of ëpopular justice.í (I apologize, for invoking this patriarchal expression, to so many Gujarati Bahens/ Sisters in Ahemdabad, who laboured assiduously to produce the desi equivalent of Molotov cocktails.) The ethical essence of the newfound virtues of federalism lies in the claim to regional autonomy for political practices of Hindutva, so long as such governance is validated by plebiscitary democracy.
I do not relish at all the burdens of reflection that these assorted principles and practices thus impose on me. Nor do I relish the narrative risks that I here perforce undertake (the risks of being totally misunderstood on all sides of the present discursive divide!) Yet, I believe these tasks to be inevitable because no one can combat a new political logic that is now developing without a serious understanding of it.
111. GOVERNANCE AS ëDAMAGEí LIMITATION
We ought to read in the same spirit the scripts of governance as offering ëjustificationsí for practices and principles of the Hindutva politics. This entails several distinct, though related, after the event performative acts of governance. These acts are performative because they constitute various ways of constructing the political truth of what happened in Gujarat. After the orchestration of a Holocaustian political catastrophe must ensue serious ëdamageí limitation exercises. Note that ëdamageí here does not at all signify hurt and harm, mayhem and mischief, caused to people whose life-projects stand completely and violently destroyed in the space of a few moments. Rather, that term refers to harm that may be caused to the perfection of practices of communalisation of governance.
Accordingly, vigilant care should be taken to transfer police officials and civil servants that obstruct the pogrom. A tender solicitude for the career advancement of this personnel offers the public justification. The Gujarat Home Minister now says that the transfers were routine because several vacancies, marking prospects for promotion for concerned officials, had to be administratively catered to. Similarly, restoration of law and order requires the police to ëcontrolí communities of social and human rights activists, and activist mass mediapersons, protesting at the Sabaramti Ashram. Gujarat sub-nationalism must be spiritedly revived against the ëold Enemiesí like Medha Patkar, and her associates, always portrayed by the Party and the Government as architects of the ruin of the State.
Given the intense national and international focus, state/ governmental legitimacy now needs to re-fabricated. The old ways of doing these are now already in place. Momentarily distressed Indian regimes have a perfect mechanism at hand, with a history of proven success, to time wrap political violence. This is the device of judicial commissions of enquiry that produce the appearance of the short term rule of law oriented state action that in the long haul divests victims of any semblance of effective redress. Indeed outside this device, the practices of communalisation of governance will stand deprived of an important ëdemocraticí resource.
The spectacular emergence of the National Human Rights Commission in the Gujarat situation, however, causes unforeseen difficulties for Chief Minister Narendra Modi. These are partly overcome by the politics of denial. The State must contest its preliminary findings. And it must refute its call for national CBI enquiry into the Godhra incident. Who can tell what CBI may find? The probability that it may develop an alternate account of what happened there is seen to pose an incipient challenge to the practice of nationalization of truth, Narendra Modi- style.
It is indeed unfair to thus single out the Gujarat Chief Minister. That figure is a composite one. It is constructed by the recent RSS conclave that proclaims now that minorities exist only by sufferance; they must depend on the practices of ëmajorityí communityís tolerance. It is also constructed by the ëYugpurushí (the rath yatra icon of well beloved Lal Krishna Advaniji), now the incumbent Union Home Minister. The collective persona also stands composed by the narcissistic ambivalence of an incumbent Prime Minister who one day urges in Ahemdabad the virtues of constitutional rajdharma and the next day recycles, at the BJP Goa ëreunioní the same notion as legitimating communal governance by the invocation of a plebiscitary majoritarian democracy. Emperor Nero fiddled when Rome burnt; the incumbent Indian Prime Minister seems determined, through his gifted practice of fence sitting and equivocation, to ensure that the Indian nation must remain hostage to recurrent Partition ótype violent orgies that reincarnate the pure, unsullied, scary bit still sacred, essence of Hindutva.
The script unfolds further still. The rajdharma, constructed along the axis of the excesses of Hindutva spoils, stands constituted by hybrid appeals to the virtues of Indian constitutionalism. Prime among these virtues is a scrupulous regard for the federal detail and design. Former Prime Minister Narasimha Rao practised this virtue to a degree of cruel perfection in events that led to the demolition of the Babri Masjid and the ensuing carnage, still in quest of a most minimal human rights redress and rehabilitation. But the virtue of respect for ëfederalismí acquires a specific coalitional Practical Postcolonial Reason. Doing politics is the art of the possible, no matter how that which constitutes the ëpossibleí results in state sponsored management of physical and social death for Indian citizens.
How may we articulate this newfound virtue? The repertoire of practices of communalisation of governance has a series of clear and cruel answers. First, administration of law and order remains a constitutionally designated State subject. The Centre has (outside, of course, the enthusiasm marking the convening of a Joint Session of Indian Parliament to rush through the terrorist anti-terrorist legislation: The Prevention of Terrorism Act) only minimalist range of constitutional obligations.
These obligations, of course, get marked differentially, according to the exigencies of NDA coalitional survival. When Chief Minister Jayalalithaa ëtormentsí an ex-Chief Minister of Tamil Nadu, and an incumbent Union Minister of Commerce, the NDA coalitional governance needs of course to fashion an appropriate constitutional response. When thousands of minority communitiesí people stand raped, mahymed, brutalized, and killed, federalism entails scrupulous constitutional quiescence!
Hard to believe, but still violently true, the very same political formations (that now rule the Nation) that made possible the prose of the Sarkaria Commission Report on Centre- State Relations, and thrived politically on thee activist discourse in the Bommai Case, now urge federalism as a principle for abstention when thousands of Indian citizens stand deprived of their minimal constitutional rights to life and livelihood.
1V. A NEW BEGINNING? OR MORE OF THE SAME?
This is the crucial question. The description so far suggests that what we have marks distinct new beginnings for communalisation of governance. Chief Minister Narendra Modi, and his normative cohorts, ask us to believe otherwise; they say to us that they are doing nothing new. What they have now done is the only way there is of doing Indian politics. The Congress Party performed similar principles and politics to a high degree in the Sikh genocide in 1984; in 1992 post-Ayodhya carnage Narasimha Rao idly stood by as if nothing of moment had happened. Governments of all political hues have ëmanagedí various ëcommunal riotsí the same way as the Modi government now seeks to manage Gujarat happenings. Its critics operate vote banks in no different ways than the Parivar now does. Despite the noble routine denunciation of politician/ criminal nexus or the police /goonda Raj (to the point of inconsequential rhetorical incorporation in Presidentís Republic Day addresses to the Nation) in real life terms, even as late as the last 2002 round of state elections, parties nominated, and people voted into power, notorious rowdies and history-sheeters. In the impending Gujarat elections, would the ruling party be morally wrong in impeccably repeating this sort of political feat?
I do not relish, and for some good reasons, at all this way of posing questions. But I must accept that this is how the questions now stand posed. The only way there is lies in our capacity to suggest that there are marked, radical discontinuities between Gujarat 2002 and all preceding human, and human rights, violation as ways of governance. That capacity stands, of course, enfeebled within the exigency of activist politics that must now find warming the thundering denunciation of the newly elected Rajjya Sabha member Laloo Prasad Yadav. His calls for a platform of solidarity of all voices of secularism remains seductive, until we recall that it does not quite help the Dalits of Bihar constantly butchered by various regime tolerated upper caste Hindu militia outfits.
I believe that our activist ways of reading Gujarat, as a new departure in the ways of doing politics must acknowledge some commonalities. We need to fully understand the fact that the rule of law in India also at the same time marks the constitution of the reign of terror. There exists an operational multi-party consensus in India that regards use of force and fraud in doing of politics as legitimate. Organized political violence against individuals or groups has become a way of doing politics.
We need new political vocabularies that describe this complex reality. We need, for example, to expunge the phrase ëcommunal violenceí from activist discourse. Asgar Ali Engineer had indefatigably reminded us all along that what stands described thus masks the fact that such violence, or ëriots,í is politically caused/-triggered events. Taking a leaf from him political scientist Paul Brass describes the Indian State as an ëinstitutionalized riot system. í Atul Kohli also archives the ways in which the formative practices of local microfacism present to political managers the difficulty of ëmanagingí the dadas/ goons who bring them to power, who then claim ëjustí rewards of autonomous flourishing after they install governments . All this points to a simple fact: ëcommunal violenceí remains a political production.
To discover the distinctive point of departure we need to understand the elements of the operational consensus concerning the legitimacy of organized violence as a means of doing politics. Briefly put, this entails the following propositions.
[1] Political Power Must Always Retain Monopoly Over Constructution of Truth
Political power is legitimate only when it perfects means and modes of regime truth-saying monopoly. Management of organized political violence requires multifarious use of the ëlawí as a sustained device of cover-up strategies and operations. What actually happened ought never to be allowed to achieve juridical verification. Judicial commissions of enquiry must be so constituted as to serve as weapons of political warfare; if at all these establish prima facie facts of political violence, they must do so in ways that make rights redress and rehabilitation almost impossible. Investigative agencies should not have autonomous status that allows them to establish the truth of what happened. If appellate courts, especially the Supreme Court, were to investigate matters in ways profoundly subversive of the operative violent multi-party consensus, all efforts must be made to render futile these occasional adjudicative leadership feats. Politically patronized leaders of the Bar, including Advocate Generals, Solicitor General, and even the Attorney General of India, should be effectively mobilized to subserve truth- monopolization.
[2] Civil Society and Human Rights Movements Ought to be Marginalized
No matter how conscientious concerned public citizen movements may marshal their fact ófinding, they ought to be denied the function of truth saying. The 1974 Amnesty Report concerning lawless violence against Naxalities, the painstaking PUCL naming of the guilty in 1984 Sikh massacre, the Citizen Commission on the communal carnage that investigated (with two eminent retired Supreme Court Justices) the 1992 Ayodhya óinduced frenzied violence were, for example, thus fully overcome. The lamented Professor Akshay Kumar Desai has archived in two heart- rending volumes the precedents of lawless ways in which the Indian state ever so successfully marginalized civil society and human rights movements.
Overall, the message is loud and clear: social activism remains legitimate only in so far as it helps perfect regime/ state managerial resources. It must be vigorously combated when it seeks on its own enclaves of autonomy in truth saying.
[3] The Mass Media Ought to be Always Socially Responsible
Since there exist no ways to silence mass media, protected by constitutional rights of freedom of speech and expression (a freedom that as much serves regime purposes as it occasionally contradicts these) , all forms of investigative journalism ought to be tormented at the bar of journalistic ethic. This stratagem worked rather successfully in the period of print journalism. It begins to disrupt operative multiparty consensus through the electronic medium. The Tehelka.com provided the first inaugural moment of political fear and trembling; the STAR TV led coverage of Gujarat happenings now provides the second. Both invited, from the very practitioners of political corruption and violence, high-minded rhetoric concerning professional media social responsibilities. The first form is already a subject matter of protracted state commission of enquiry; the second form will too eventually invite related potential for retaliation. Social responsibility here signifies a form of self ó regulation that does not vitally jeopardize the operative political consensus. Mediapersons serve the ënational interestí well, in sum, when they also serve the regime interests.
In what ways then does the Gujarat political management constitute a radical break? I think it does so primarily through the deployment of federalism as a Shield and Sword.
That enormously learned Prime Minister, Narasimha Rao, as already noted, suddenly discovered the value of Indian federalism as the cornerstone justifying the doings of organized political violence. He went so far as to plead a very fine federal sensibility that disarmed the Centre from any duties of preventing the demolition of the Babri Masjid and the cruel carnage that followed. Federalism as a shield safeguarding practices of regime abetted, at times even sponsored violence, and now serves the incumbent Prime Minister equally well. The benefits of the recent Tamil Nadu performances by the Union Government remain unavailable to the Gujarat violated. They remain ëoutsidersí to these regime oriented proactive uses of the federal principle and detail! Not being ëinsidersí that maintain the current violent political consensus, their suffering stands less privileged than that of the ex- Chief Minister and the Union Commerce Minister!
The current ëscrupulous ë regard for federalism, in the Gujarat experience, signifies an unconstitutional departure. Its main message is that victims of organized political violence within state regimes do not form any concern of the Union government. It is now being openly said that law and order is a state subject; the Centre has no human rights responsibilities whatsoever for egregious regime human, and human rights, violation. The then Opposition that deposed otherwise before the Sarkaria Commission, and gloated over the Supreme Court discourse in the Bommai Case, now ruthlessly (at least from the standpoint of the Gujarat violated) asserts a fine regard for federalism!
The Gujarat happenings also mark a transformation of the regimes of impunity. As now constructed by the BJP Goa Conference, appeals to majoritarian democracy emerges as the best solvent of all indictments of state complicity in organized political violence. The message here caricatures all notions of political sovereignty and of minority rights. Buoyant Hindu majorities, in the wake of Gujarat violence, now stand invested with the power to retrospectively justify large-scale political mayhem, rape, looting, and murder. Anticipated / engineered plebisctary verdicts stand touted as democratic versions that expurgate the Gujarat ótype modes of ethnic cleansing! I am somewhat at a loss for historical analogues of such brazen ëdemocratic justifications, for such productions of Radical Evil.
V. TASKS FOR ACTIVISM
The failure of the constitutional state in India, which Gujarat yet again so cruelly epitomises, remains to be accounted for as a conjoint and combined failure. On the one side, the absolute degeneration of politics: on the other side, despite proud exuberance, the absolute inefficacy of modes of doing peopleís politics. Too much of our liberal activism is an after the event activism, not before the event activism; and too much of revolutionary activism remains rendered bereft of any democratic legitimacy.
What then occupies the public space are after the event activist performances. These typically consist in participatory modes of information and evidence gathering, concrete tasks of providing relief and rehabilitation, and keeping the issue alive through social action litigation and other related means of public opinion campaigns. All this helps tormented and tortured peoples in wake of political catastrophes in many a precious way.
At the same time, we are unable, or rendered disabled, from addressing governance structures and conduct that so systemically destroy people life projects, without any semblance of rights, redress, restitution, and rehabilitation.
We know this, of course. The task then is to invent steadfast communities of concern and commitment determined to prevent future Gujarat genocidal happenings.
In what ways do we address this psyche, so millennially removed from the languages and logics of human rights and constitutionalism? How may social and human rights activism then, here- and- now, and for the future, combat this wildfire emergence of political psyche, which regards accession to constitutional office as a result of good karmic performances in the past lives and a passport to worthwhile future cosmic existence? The Indian Constitution then for the Parivar provides ample space for Dharmic purushartha.
For the rulers and the ruled, they now say to us, Rajdharma is both varna-dharma and apad dharma. The dharmasankat, the ethical dilemma, stands signified by constitutional secularism that ëdisproportionately,í in their view, favours the Alpashankays against the Bahujans, the brihad samaj. That constitutes the apad, the very normative emergency codified by a ësecularí Constitution. Rajdharma, according to the Parivar, ought to promote a ëHinduí renaissance because only in this lies the prospect of ëpeaceful coexistenceí between the ëmajorityí and ëminority.í
We must find ways of somehow speaking to this ëdiscourseí because of the fact that languages of constitutionalism and human rights are now profoundly at stake. They do not make sense any more to those who perpetrated mass violence in Gujarat and their votaries.
The task is historic because our successful performances here and now can arrest the current practices that irreversibly negate Indian constitutionalism. Given the bankruptcy of the representative institutions, we need to nurture judicial self óconfidence to enforce a minimal constitutional discipline on vagabond, buccaneer forms of Hindutva politics. But it is not given even luminous activist judges to transform political histories; at best, they can aid this mission. Good enough, perhaps, to provide succour to the Gujarat violated, the Supreme Court cannot provide answers that only vigilant peopleís movements may do. What is needed then is the reshaping of peopleís politics that frontally assails the existing operative consensus legitimating violence as a way of doing politics. Difficult through this mission of reinventing politics is, it is not impossible.
The term ëreinvention of politicsí must not remain grand academic term. Rather, it marks a quest for ways of assaulting the culture of impunity and the practices of the communalisation of governance. This will require very substantial before the event activism, just as now we must do all we can to bring a measure of just restoration to the Gujarat violated.
A whole charter of practical demands should mark our ceaseless social action quest for reinvention of politics. I here articulate at least three sorts of demands for expeditious and effective relief and rehabilitation, for mechanisms for quick and objective fact-finding, and for effective punishment of the guilty.
Towards a Mandatory Regime of Immediate Relief and Long Term Rehabilitation
This program will aim at providing instant cash flow, as well as relief in kind, to each and every victim to get on with her/his life in the wake of any incident of politically organized violence. It will also provide for sustained rehabilitation of the violated peoples. We should demand the creation of a statutory National Social Defence Fund. Deriving at least a part of its revenue from the consolidated fund, the NSDF will stand mandated to provide short term relief as well long term rehabilitation. The Indian Finance Commission (in cooperation with victims, and their next of kin, as well as social and human rights communities) should also stand mandated to device means for allocation of revenues for politically organized violence.
The NSDF will conduct its operations in each affected area/ region in active consultation with non ógovernmental organizations and under the oversight of judicial institutions.
Mechanisms for Fact -Finding
Statutory bodies like the National Human Rights Commission, the Minority Commission, and the Womenís Commission, at national and state levels, must be required by legislative amendment of their mandates, to report to Parliament and through mass media to the Indian public as a whole, proposal and progress redressing every occurrence of mass violence and human violation. The National Human Rights Commission should be invested with the power of expeditious and effective investigation of all situations of politically organized violence, defined specifically in terms of acts of governance omission and commission.
Parliamentary procedure and custom should be innovated to provide for a permanent a Select Committee, with a mandate to investigate any unfolding episode of organized political violence.
Simultaneously, the Chief Justice of India ought to convene a special meeting of the Chief Justices of High Courts with a view to evolve procedures for taking suo motu cognisance of large scale violence and for passing appropriate judicial orders. The Chief Justices should also consider the role of statutory legal services bodies within their jurisdiction.
Effective Prosecution and Punishment
One way to ambush the culture of impunity is to revive the fear of law among those who wield public power. This can be achieved in many ways. For example, the Chief Justices Conference may consider installing a procedure requiring the Advocate General to furnish adequate information concerning the initiation, and the progress, of law enforcement action against those public officials who abdicate the performance of their public duties in situations of organized political violence. They should also assume duties of monitoring the process of criminal law enforcement from the stage of filing the FIR to day-to-day trial and require District and Sessions Judges to file periodic returns on the state of affairs. Where necessary, the Chief Justices may direct the creation of special courts and tribunals.
Several valuable suggestions have emerged for the reform of law and procedure. The National Human Rights Commission has for example proposed that the police should visit the relief camps in order to facilitate the filing of FIRs. Dr. V.S.Mani, writing in The Hindu recently, has called for a specific legislation enacting the crime of genocide. One may add to this programschrift many more suggestions. In the Gujarat type violence, the granting of bail should be an exception, rather than a norm, except in situations where it can be readily established that the prosecutorial discretion has been abused. Further, on the analogy of the Rapid Action Force, all states must be required by law to establish fast track procedures for investigation, and prosecution of communal offenders. The Rapid Action Legal Task Force should be autonomous of the executive. Any interference with its work should be punishable with heavy fines and substantial incarceration. In particular, such Force should give priority to instances of sexual violence and gender based aggression. People found guilty should be debarred, as a part of punishment, from holding any public position, including positions as political party officials and agents. Any person charged with acts of commission and omission in the performance of public duties should be disabled during the pendency of judicial proceedings from contesting elections or otherwise occupying any public office. The Penal Code provisions concerning incitement to religious enmity and hatred and creation of public mischief should be further expansively developed. The burden of proof should be reversed in specific situations now cruelly represented by the Gujarat carnage
Incidentally, activists should recourse to prosecutions for sedition by incumbent Ministers. That offence is rather peculiar in that it penalizes acts causing ëdisaffectioní towards lawful governments. Now is not the time for any posturing of liberal discomfiture at this duty requiring of citizens that they entertain ëaffectioní for their rulers, a tribute they have at any rate done nothing to deserve. Rather, now is the time when political actors should be imaginatively prosecuted for their conduct, which has the result of producing such disaffection. We ought to use the colonial legality against our still colonial masters!
The tasks so far outlined (and indeed many more can be envisaged) may merely amount to the renovation, rather than reinvention, of governance. Indeed, to use a devastating cliché all we nay end up doing is to rearrange deck chairs on the Titanic. Even so, these gestures of engagement remain urgent because time for Indian constitutionalism is running out.
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