Explicating what the law is has always been the monopoly of lawyers, who have seemingly been granted the ‘exclusive’ power to decipher the mysteries of the law and interpret them for the wider world. The hegemony of this group over the wide realm of law is perhaps best illustrated by the fact that, even in meetings of activists, the final word on legal strategy is generally left to the lawyer.
For their part, lawyers take this reverence for their station as their natural due; this deference has, in fact, resulted in keeping out many alternative interpretations of the law. In any library or bookshop, a mountain of volumes that specialise in law can be found, all of which will prove to be learned discussions on various incomprehensible acts. What is common to these erudite tomes is the way that they doggedly plod from provision to provision, detailing exactly how the courts have interpreted various laws. Any lay person who happens to peruse such books would happily decide to leave these stolid and boring versions of the law to the lawyers. Doing so, however, only reinforces the monopoly that the profession has on the interpretation of law.
This is indeed a tragedy. Many other disciplines have both fresh and useful interpretations of the myriad issues surrounding law. The Sarai Reader V: Bare Acts is a unique attempt at wresting the monopoly over law from the lawyers and jurists. The Bare Act, as the editors note, is “an expression used to specify the content of the law, bereft of any interpretative gloss. In a legal library in India and many parts of the English-speaking world, a Bare Act is a document that simply codifies a law without annotation or commentary. The ‘Bare Act’ is legality pared down to its textual essence. It expresses only what the law does and what it can do.”
The book’s variety of contributors include activists, media persons, anthropologists, cultural theorists, teachers, journalists as well as lawyers, whose perspectives seek to locate the ‘bare act’ within the understanding of these separate disciplines. The diversity of the issues covered is striking: armed rebellion, terrorism, police violence, piracy, religious intolerance, cyber cultures, media surveillance, sex work and sexual nonconformity all share space here, vividly communicating the range of concerns that make up the role of the legal realm in the contemporary era.
Pervading many of these essays is the view that the law is often not a source of justice, but rather of ‘totalising violence’- that is, violence which is so absolute in its impact that dissent is not ever a possibility. Alexander Karschnia, a theatre person, writes how, since 9/11, “the enforcement of law has become the dominant ideology and legitimised every military/police action since then.” Bimol Akoijam, a researcher at the Centre for the Study of Developing Societies, in discussing the Armed Forces Special Powers Act (a draconian legislation in force in Northeast India), makes a similar point about the totality of state power and violence as enforced through law.
In anthropologist Naveeda Khan’s analysis of the situation of the two-million strong Ahmediya community in Pakistan, both global capital and religious intolerance come together in a situation analogous to the “infringement of a trademark.” The Ahmediyas are, according to the court, trying to ‘pass off’ as Muslims by citing the Quran and worshipping in mosques. Therefore, they are to be restrained by the law from exercising their basic rights – including the right to call the azan, build mosques, and cite the Quran and hadiths.
In a piece about the sensational trial of Kawas Maneckshaw Nanavati, Commander in the Indian Navy, Aarti Sethi superbly illustrates patriarchal ideology as another ‘site’ of violence. On being told by his wife that she was sleeping with another man, Nanavati listened calmly and then went ahead to shoot the lover. The belief that it is honourable for a reasonable man to be provoked in this way ran through the case’s judicial pronouncements, media presentations as well as the final executive decision to pardon Nanavati.
These accounts of the violence of law remain crucial, for it is important to understand the everyday impact of law on significant sections of the society. The fact that army brutality is an everyday reality in the Northeast of India or that law has effortlessly deprived an entire community of its rights put into question the liberal understanding of law as being intrinsically linked to justice. The questions naturally arise: What
do we do? How do we continue the struggle against power and for a less hierarchical and more just world?
Politics of stealth
One response the Reader offers to the totalising account of law is that power structures can never be all-pervading: they are all porous, in a way that can be creatively used by those who end up on the law’s ‘receiving end’. Lawrence Liang, a lawyer, follows up on this idea, suggesting that the only way that many poor people are able to eke out a living is by making the most of this flexibility, to ‘illegally’ access resources. Solly Benjamin, an independent researcher, makes a similar argument, detailing how a ‘quiet politics of stealth’, that pays little heed to the above ground world of Law with a capital L, is largely responsible for ensuring that the poor are able to survive from day to day. This involves a complex system of negotiation with a system of (il)legal power through which the poor regularise their claims on land and, thereby, begin to get elementary facilities, right from drainage to
While viewing law as porous can open our eyes to what is happening at the margins, the question remains: How can law be linked to justice? An earlier generation may well have ideally and resolutely looked to the law to solve the problems of the contemporary world. The slew of legislation brought about in response to powerful modern social movements makes it clear that a great deal was invested in the law’s ability to deliver social change. A distinction has arisen, however, between policy and implementation, between law and justice. After two decades of legislation pertaining to women in India, for example, there has been a saddening decline of faith in the law’s ability to convey real justice.
Bare Acts includes an important essay that simultaneously traces the function of law as a tool of oppression, while maintaining faith in its ability to deliver justice. In detailing the experience of the Right to Information campaign in Rajasthan, activists Preeti Sampath and Nikhil Dey maintain that law can be used to expand democratic space if the struggle for the law is part of a larger movement. The campaign for the Right to Information, which began in villages, has today led to a major, nationwide legislation in India. Law, in this case, does recover its links with justice.
The Reader’s rich array of essays embodies a complex tension between varying perspectives on law. While some contributors stress on the violence of law, others search specifically for what exists in law that can aid resistance. Some refuse to acknowledge any link between law and justice, while others have devoted their lives’ works to painstakingly constructing that link. The Sarai Reader succeeds because it allows these diverse voices to coexist in the volume’s search for an expanded vision of law.
~ Arvind Narrain, keenly interested in law and exclusion, is a practicing advocate with Alternative Law Forum, Bangalore.