Violence and the Quest for Justice in South Asia
Publication Year: 2018
A first of its kind, this timely volume provides a series of case studies from South Asia that detail the quest for justice, the links that can be drawn from different countries in the region and the points of contact and divergences in the enunciation and practice of law. A second theme that runs through the book discusses the corrosive and affective power of violence in its ability to forge new solidary groups and communities. This is the first serious attempt by activists and scholars to think of South Asia as a region bound together through war and collective violence. It will be an invaluable read for postgraduate students and scholars of law and society, political philosophy, sociology and anthropology of violence, history and memory ...
- Front Matter
- Back Matter
- Section 1: : War, Justice and Remembrance
- Chapter 1: War Crimes, Justice and the Politics of Memory
- Chapter 2: The Limits of ‘Doing’ Justice: Compensation as Reparation in Post-War Sri Lanka
- Chapter 3: Justice After the Event: Sri Lanka's Civil Wars, Memory, Life and Reconciliation
- Section 2: : Damage, Compensation and Redress
- Chapter 4: The Right to Life and Compensation in Pakistan's Tribal Areas
- Chapter 5: Seeking Justice and Keeping the Memory Alive
- Section 3: : Endemic Conflict and the War Within
- Chapter 6: Stand up and Be Counted: Elections, Democracy and the Pursuit of Justice in Jammu and Kashmir
- Chapter 7: The Adivasi Undertrial, a Prisoner of War: A Study of Undertrial Detainees in South Chhattisgarh
- Chapter 8: The Ayodhya Dispute: Law's Imagination and the Functions of the Status Quo
- Chapter 9: Constitutional Nationalism and Structural Violence: A Study of the Muluki Ain and the Constitutions of Nepal
First published in 2018 by
SAGE Publications India Pvt Ltd
B1/I-1 Mohan Cooperative Industrial Area
Mathura Road, New Delhi 110 044, India
SAGE Publications Inc
2455 Teller Road
Thousand Oaks, California 91320, USA
SAGE Publications Ltd
1 Oliver's Yard, 55 City Road
London EC1Y 1SP, United Kingdom
SAGE Publications Asia-Pacific Pte Ltd
3 Church Street
#10-04 Samsung Hub
79 Gulmohar Enclave
New Delhi 110049
Copyright © Deepak Mehta and Rahul Roy, 2018
All rights reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system, without permission in writing from the publisher.
Library of Congress Cataloging-in-Publication Data Available
ISBN: 978-93-528-0653-9 (HB)
SAGE Yoda Team: Payal Dhar, Arpita Das, Sandhya Gola and Ishita Gupta
Published by Vivek Mehra for SAGE Publications India Pvt Ltd, typeset in 10/12 pt Book Antiqua by Zaza Eunice, Hosur, Tamil Nadu, India and printed at Sai Print-o-Pack, New Delhi.
SAGE was founded in 1965 by Sara Miller McCune to support the dissemination of usable knowledge by publishing innovative and high-quality research and teaching content. Today, we publish over 900 journals, including those of more than 400 learned societies, more than 800 new books per year, and a growing range of library products including archives, data, case studies, reports, and video. SAGE remains majority-owned by our founder, and after Sara's lifetime will become owned by a charitable trust that secures our continued independence.
Los Angeles | London | New Delhi | Singapore | Washington DC | Melbourne
Preface[Page ii]Bulk Sales
SAGE India offers special discounts for purchase of books in bulk.
We also make available special imprints and excerpts from our books on demand.
For orders and enquiries, write to us at
SAGE Publications India Pvt Ltd
B1/I-1, Mohan Cooperative Industrial Area
Mathura Road, Post Bag 7
New Delhi 110044, India
E-mail us at firstname.lastname@example.org
Get to know more about SAGE
Be invited to SAGE events, get on our mailing list. Write today to email@example.com
This book is also available as an e-book.
Disputes over the place of marginal groups and minorities in constitutional systems have and continue to shape the history and experience of democracy in the South Asian region. Over the last four decades questions concerned with the ability of nation-states to provide justice for their marginal and dispossessed populations has emerged as a major stress point for planners and policy-makers to offer the gains of development. Equally, researchers, NGOs and various groups in civil society have specified empirical details that document the corrosive effects of exploitation and corruption of the body-politic of the South Asian region. In all these elements we find a common demand across the region that deals with the theme of justice and the possibility of restitution. While livelihood, health, ecology, agriculture and the promises of urban infrastructure are some of the registers in which justice can be interrogated and its domains extended, violent conflict is the express paradigm that overwrites and underscores all these registers. At the heart of the struggles it appears that constitutional law is complicit with various power structures in furthering the privileges of the few. In other words, the quest for justice in the South Asian context is marked by a peculiar lacuna: social groups and collective practices emerge from the operations of law, even as they set themselves against the ‘unjustness’ of law.
In 2012 a group of filmmakers, civil rights activists and academics came together to document civil violence and warfare across the region. The project produced 14 research papers and five films in Bangladesh, Nepal, Pakistan, Sri Lanka and India that highlighted the most pressing concerns on justice in the [Page viii]respective countries. Furthermore, our attempt was to imagine South Asia as a zone of enquiry for creating points of debate over practices concerned with violence, redress and resistance. The research underscored the idea that a regional and comparative study in the area of justice would make possible a more nuanced understanding of state formation and practices in the region because of a shared past and present. It also allowed us to explore the inextricable ways in which the quest for justice is linked to the future of the region and the continuing importance that contests will hold for this future.
From the war for Jaffna and civil violence in Colombo, to the war in FATA, to civil violence and combat in Kashmir, and the pervasive exercise of force against minorities and tribal groups in India and the practices of law and constitution-making in Nepal (underwritten and informed by the Maoist uprising), the project mobilized a variety of research methods and archives to trace a long history and geography of violence in South Asia. The limits imposed on civil rights activism as well as ethnographic participation in arenas of physical conflict forced the group to think about the potential of state law to deliver on its promises of justice and prudence. Accordingly, the initial stories detailing the demands of justice in South Asia were tracked through legal documents and enquiry committee reports, literary stories and anecdotal narratives, sample surveys and where possible, ethnographic modes of knowing. Rather than discuss each individual chapter in the volume we will de-limit the most important themes that run across the different accounts.
The demarcation of the project followed a more or less convenient distinction between military warfare and civil violence and disorder. The organization of chapters is based on this distinction. We are, however, aware that this distinction between warfare and civil violence is difficult, if not impossible to sustain. For one, the view that war (generally understood as between nation-states) is a legal state—something that happens between the announcement of hostilities and the signing of the armistice— seems to be a description of warfare in the early 20th century, where a fundamental division is assumed between combatants [Page ix]and non-combatants. Second, the province of war is controlled by a ‘theatre of operation’ and manned by the armed forces of the nation-states. Third, as a legal state, the war suspends normal everyday life through the operations of law. There are of course many other characteristics of war that make it distinctive, even singular. We signal the above three to show that these conditions have not existed in South Asia at least since the 1980s.
In terms of the legal announcement of a state of war, we find that the deployment of armed forces to control civil ‘disturbances’ within the nation-state has been justified through a range of exceptions in law. While the exceptions argument is well known from the works of Agamben (2005) and others, the implications of legal exceptions as they operate in the sinews of the social have not been adequately documented. The remarkable accounts from Sri Lanka and Pakistan, as well as undertrials in parts of India in this volume show that officials and citizens acting under the dispensation of the state achieve federations of violence, often authorized and condoned by state institutions. While such violence occurs with all the normality of bureaucratic abstraction, seen in the chilling detailing of statistics from FATA, the struggle in that province shows us also what Agamben calls ‘zones of indistinction'—between life and death, combatant and non-combatant, civil and military violence.
If zones of indistinction mark contemporary civil violence in South Asia how may we re-think our practices of legal aid and the possibilities of restitution? It is important to recognize that the court of law becomes the prime area where the distinction between life and death is played out. As a hybrid of metaphor and fact, the court materializes the force of law. Can it be that in this materialization, law is able to establish anew its lethal will? Sarat and Kearns (1993) argue that violence as both literality and symbol is integral to the constitution of modern law, a point echoed by a number of philosophers (Derrida, Taylor, Narveson). We find that if law cannot exist apart from the exercise of force then laws necessarily desire transgression. In Derrida's formulation every successful overturn of the law (a revolutionary moment) at the same time invents or institutes a new law that retrospectively [Page x]legitimates the violence with which a pre-existing order was overcome. How does this work in the essays in this volume? Whether it is the war for Jaffna, or the anti-Sikh pogrom of 1984 in Delhi or the destruction of the Babri mosque in 1992, we find that law arrogates for itself a singular space of legitimacy. Here law's violence appears to be rational, controlled and purposive through the legal articulation of values, norms and procedures, in contrast to the sectarian savagery beyond law's boundaries. In this volume, law's violence and the savagery that it sets itself against is brought out most sharply in the collaborationist role of the Jama'at-e-Islami and Bangladesh Nationalist Party in Bangladesh's war of liberation. The essay shows that the violence of the collaborationists can only be addressed by a higher form of violence, one that is in the service of the nation. So, if law proposes to establish equivalence between loss and damage, between dispossession and rehabilitation, between property and worship, we also learn that legal violence is violence nonetheless; it crushes with steadfastness equal to a violence unharnessed by legitimacy.
A second set of refrains in the volume complicate the agency of state personnel and citizens. Electoral politics in Kashmir, and state-sanctioned militia in Sri Lanka, Pakistan and India erase the dividing line between state functionaries and citizens. It may be that the state gets into trouble when the violence it exercises cannot be distinguished from criminal violence, but something more fundamental is at stake here. Whether it is the so-called Maoist insurgency in central India, the plight of refugees fleeing to safe havens across the region, or the ritual of the electoral process, we find that state sovereignty sees itself as being under siege. It is almost as if when the subject transgresses the law the sovereign replies with lethal force, putting the offender to death or forcing her into a state of limbo—neither citizen, nor subject, but an undertrial, a refugee or an ‘antinational’. Added to this classic view of the sovereign is a form of bio-power that emphasizes its negative axis, ‘to make live and let die’. If bio-power is in the business of letting die then who is it whose life is expendable? And how might we think of their demands for justice? All the essays in the volume explore the tension between sovereignty [Page xi]and legality that arises in times of state-declared emergency, but they also show how emergency is normalized through the constitution of sections of the populations as ‘life unworthy of life’. A significant trope within which processes of normalization are addressed is that of impunity. In her analysis of the undertrials in Chhattisgarh, Grover shows that impunity works in various ways in combating the ‘Maoist menace'—through the militarization of physical infrastructure, the power to name someone as Naxal, and indeed the Chhattisgarh Special Public Security Act, 2005.
A third theme that runs through the chapters of this volume addresses the force of remembrance as it comes to negotiate with violence. In a nuanced essay that juxtaposes two events of violence, Jeganathan attempts to recover the possibility of how one might bear witness to violation and the mode in which it may be remembered. In his account we see the possibilities of how the judicial and aesthetic may be read together. In the process, the representation of violence is placed between two orientations. While the aesthetic register emphasizes the metaphoric, the juridical register describes other sites on the memory map. Taken together these two become transit stations on the way to en-tonguing violence. A similar process appears in Thungon's chapter on the 1984 pogrom in Delhi and Bina D'Costa's chapter on war crimes and the politics of memory in Bangladesh. Through the force of memory we find that the distinction between violence as an event that happened in the past and its recall in the present is troubled. In her luminous and powerful novel Beloved, Toni Morrison deals with the ghosts of African-American pasts and complicates our understanding of the difference between the labour of mourning and the resignation to the destruction wrought by violence. Part of this resignation severs the bonds of memory and part rests on the impossibility of closure in courts of law.
What then is the figure of the subject that is available from these accounts? In all the chapters of the volume we find that the subject of violence is a kind of process that is repeatedly eliminated or abandoned anew. And yet the victims of violence in South Asia as elsewhere also pose a threat to the power of the nation-state and to the order of things. These chapters attempt [Page xii]a re-description of this threat by showing that the map of South Asia, re-drawn internally and externally, imagines the recovery of a spectral landscape. The repressed memories that are embedded in this ghostly land may perhaps also find voice as they demand a place to be heard.
A final chapter, in a sense an appropriate coda to the volume, shows us how law and a national constitution may be made anew. One of the most important points that emerges from Uprety's description of the various debates in formulating a new constitution for Nepal is how the figure of the enemy, itself mobile and changeable, continues to structure the imagination of a future. Feldman (2015) reminds us that the structuring enemy both supports and de-centres the political, but when this figure becomes unstable then law is unable to adequately account for a violence that cannot be named. Contests over constitution-making in Nepal point us to this troubling possibility and open a window onto the other chapters. Perhaps in South Asia we are in the presence of a violence that has not been fully named as yet. The challenge is to en-tongue it in a way that allows for practices of hope and restitution.
About the Editors and Contributors[Page 361]Editors
Deepak Mehta is the co-editor of the reputed journal Contributions to Indian Sociology. His research interests centre around the study of material culture, the sociology of Muslim groups in India and law and the sociology of violence. He is the author of Work, Ritual, Biography: A Muslim Community in North India (1996). He has authored (with Roma Chatterji) Living with Violence: An Anthropology of Events and Everyday Life (2007) and edited (with Roma Chatterji) Riot Discourses (2007). He is currently Professor of Sociology at Shiv Nadar University, India.
Rahul Roy is an independent documentary filmmaker whose work has focused on communalism, labour and masculinities. His films—The City Beautiful, Where Four Friends Meet, Majma and The Factory have been widely screened internationally and won several awards. He is the author of the bestselling A Little Book on Men (YODA PRESS, 2007).Contributors
Bina D'Costa works on the nexus between development, human rights and security in South Asia. She was previously the Convener of the Bachelor's Programme in Security Analysis with the Australian National University and taught on the Politics and IR Programme of the School of Culture, History and Languages there. She serves on the editorial board of the International Journal[Page 362]for Transitional Justice and is an associate editor for the International Journal of Feminist Politics.
Vrinda Grover is a human rights lawyer based in Delhi. She was previously the Executive Director of MARG, New Delhi. She has done seminal work on anti-Sikh riot cases and is handling a range of cases related to human rights issues across the country. She practices in the Supreme Court of India.
Pradeep Jeganathan is Professor of Sociology at Shiv Nadar University. Previously, he held faculty appointments at the University of Minnesota at Minneapolis, the New School for Social Research in New York, the International Center for Ethnic Studies and the Post Graduate Institute of Archaeological Research, at the University of Kelaniya in Colombo, Sri Lanka. His published books, authored or edited, include Living with Death (2007), At the Water's Edge (2004), Unmaking the Nation (1995|2009) and Subaltern Studies XI (2001).
Sanjay Kak is an independent documentary filmmaker. His films Red Ant Dream (2015); Jashn-e-Azadi (How we celebrate freedom, 2007, about the idea of freedom in Kashmir); Words on Water, 2002, about the struggle against the Narmada dams in central India (winner of Best Long Film prize at the Internacional Festival of Environmental Film & Video, Brazil); and In the forest hangs a bridge (1999, about the making of a 1000 ft bridge of cane and bamboo in north east India and winner of the Golden Lotus Best Documentary Film at the National Film Awards and the Asian Gaze Award at the Pusan Short Film Festival, Korea) reflect his interests in ecology, alternatives and resistance politics.
Saba Gul Khattak was previously a member of the Planning Commission of Pakistan. She was also Executive Director at the Sustainable Development Policy Institute (SDPI) for several years. She received her PhD in Political Science from the University of Hawaii in 1991, following which she worked as a research fellow at the East-West Center, Honolulu, Hawaii, and [Page 363]also taught International Relations at the University of Peshawar and Political Science at the University of Hawaii. She is associated with several organizations, being a member of the Women's Action Forum (WAF), governing bodies of several NGOs, editorial board of Theoretical Perspectives and Curriculum Committees of two women's studies centres.
Chulani Kodikara is a Research Associate at the International Center for Ethnic Studies, Colombo, Sri Lanka. She is the author of Muslim Family Law in Sri Lanka: Theory, Practice and Issues of Concern to Women and Women and Governance in Sri Lanka (with Kishali Pinto Jayawardena).
Neloufer de Mel is the Director of Studies for the Faculty of Arts, a Professor of English, and a Lecturer for the Postgraduate Diploma and MA in Women's Studies programmes at the University of Colombo in Sri Lanka. Her recent publications include Militarizing Sri Lanka: Popular Culture, Memory and Narrative in the Sri Lankan Armed Conflict (2007), ‘Between the War and the Sea: Critical Events, Contiguities and Feminist Domains,’ Intervention: International Journal of Postcolonial Studies (2007), Gendering the Tsunami: Women's Experiences from Sri Lanka with Kanchana Ruwanpura (2006), Bearing Witness: Women's Experiences of Armed Conflict in Sri Lanka (2005), and ‘Sri Lanka: Mother Politics and Women's Politics,’ in Gender Mainstreaming in Conflict Transformation (2005). She has co-edited At the Cutting Edge: Essays in honor of Kumari Jayawardena (2007) and Writing an Inheritance: Women's Writing in Sri Lanka 1860-1948 (2002).
Bal Bahadur Thapa teaches at the Central Department of English, Tribhuvan University, Kirtipur, Kathmandu. His research articles have been published in journals like Media Adhyayan and Cross-Currents.
Leki Thungon teaches at Ambedkar University, Delhi. Her MPhil thesis was on the urban and legal aspects of the 1984 anti-Sikh pogrom.[Page 364]
Sanjeev Uprety taught at the Central Department of English, Tribhuvan University for more than two decades. He holds a PhD from Brown University, Providence, Rhode Island, with a focus on masculinity studies. He has done post-doctoral research on South Asian masculinities at Harvard and UC-Berkeley universities. He is also the writer of the bestselling Nepali novel Ghanchakkar. Sanjeev also coordinated the construction of Interactive Mapping and Archival Project (IMAP)—a digital archive consisting of art-and theatre-related materials of Nepal. His recent book Siddhanta Ka Kura has interpreted contemporary western theories in relation to Nepali literary texts and the socio-political contexts of Nepal.