Law’s violence

Oishik Sircar, Violent Modernities: Cultural Lives of Law in the New India (New Delhi: Oxford University Press, 2021). 370pp., £40.99 hb., 978 0 19012 792 3

This is a book that resists easy categorisation and, as a result, also resists the typical review process. 1 I could, for example, note that the book consists of seven essays written as standalone pieces, which address a wide range of topics. Sircar deals with questions as diverse as the authorial style of the famed critical legal theorist Upendra Baxi (Chapter 6), representations of law in cinematic retellings of the Gujarat anti-Muslim pogrom of 2002 (Chapter 3), the inability of rights-claims under the Indian Constitution to deliver justice and emancipation for subaltern actors (Chapter 1), and the complications of being a male feminist (Chapter 7). I could also flag that Chapter 2, dealing with the children of sex workers and the politics of pity and suffering, is co-authored with Debolina Dutta, a choice that puts pressure on the very form of the sole-authored monograph and invites us to think creatively about how to interact with our comrades and co-conspirators through our scholarly work.

The uniqueness of this volume leads Sircar to warn his readers early on that the book can be read both in a fragmented way (depending on one’s interest in different topics covered by the essays) or in a traditional cover-to-cover way. If one does the latter (as I did), then this book becomes a – still fragmented – meditation on the relationship between liberal legality, on the one hand, and the joint rise of neoliberalism and Hindutva, on the other. Where both liberals and the far-right understand the relationship between the two ideologies and political systems as fundamentally antagonistic, Sircar suggests that there are important continuities between the two. More specifically, he documents meticulously that law was a central terrain where the promises of liberalism either remained unrealised or were, in fact, realised only to reveal that they entailed more violence and exclusion than its exponents assumed. Even though the book shies away from a strong, unified claim, the implication is that the failures and successes of liberal legalism alike paved the way for the rise of the Hindu far-right. This happened due to the law’s tendency to equate secularism with Hinduism, authorise or tolerate violence in the name of ‘national security’, make the poor and other subaltern actors the object of private pity and public management, and by elevating the nation-state into the ultimate arbitrator and referent of human diversity. In this telling, the three pillars of the postcolonial state, namely the rule of law, secularism and developmentalism, contained the seeds of the ascendance of the Hindu far-right. Sircar shows in detail how events and actors nominally antagonistic to Hindutva, such as India’s LGBT+ movement or cinematic representations of the Gujarat pogroms, continuously centre the (Hindu) nation-state and demand deference to the state and its imperatives in exchange for recognition and minimal protection by the law.

Written from a left-critical perspective, then, the book is of interest both to those working on India and its law and to those thinking about the relationship between law and the global resurgence of the far right. In the intersection of the two, Sircar offers glimpses of the rise and fall of post-colonial constitutionalism and how its shortcomings transformed India from an epoch-making experiment in community co-existence and state-led socialist transformation domestically as well as a leader of Non-Alignment internationally into a far-right, neoliberal state with open and celebrated ties with the settler state of Israel over their shared and increasingly militant Islamophobia. For Sircar, acts like the occupation of Kashmir, the proclamation of the infamous state of emergency under Indira Gandhi, and the embrace of state-led authoritarian developmentalism had poisoned the well of post-colonial statehood and its laws long before Modi’s BJP came to power in 2014. Hindutva, then, emerges not as the negation of the liberal rule of law but as its monstrous outgrowth. Perhaps more precisely, Sincar emphasises the profound entanglement between the Hindu far-right and neoliberalism, an entanglement encapsulated in Modi’s emphasis on the ‘Ease of Doing Business’ and other indexes as the yardsticks of governmental legitimacy and success. In this respect, the date that haunts this book is not the 15th of August 1947, when India became independent, but rather 1991, when the process of neoliberal reforms began in earnest in India, decisively leaving behind the post-independence political aspiration for and post-1976 constitutional commitment to a mixed economy.

This dance between 1947 and 1991 constitutes a tension that runs through Sircar’s thinking: on the one hand, the neoliberal turn of the 1990s is repeatedly identified as a pivotal moment in Indian history. Hindutva is rarely mentioned without its political economic twin, neoliberalism. On the other hand, Sircar casts a much broader net both thematically and temporally. His analysis shows profound distrust towards developmentalism in general, even when it was directed by the state. In his view, the authoritarianism that he sees as inherent in Indian developmentalism was one of the core state ideologies and practices that paved the way for the rise of the Hindu far-right. In this respect, Sircar’s account can be situated in long-standing left-wing critiques of Indian developmentalism that emphasised the role of the state as enabler of private capital accumulation and India’s version of socialism as an experiment in top-down management, rather than dispersion of control over the economy to direct producers, workers and farmers.

At the same time, his scepticism about rights claims and adjudication goes back to the promulgation of India’s Constitution and the early years of the Supreme Court, long before the latter adopted a pro-market, pro-upper middle class and anti-poor interpretation of constitutionally-protected rights. After all, as the very title of the book implies, Sircar’s main focus is not successive ideologies or political economic models (liberalism/neoliberalism, state-led developmentalism/neoliberalism) but modernity writ large. Early in the book, Sircar outlines his own understanding of modernity as both a justification for colonialism and a tool in the hands of the colonised as they craft and legitimise their own versions of it. Indeed, very few places represent the latter move more starkly than India, where the colonised – or at least their elite, self-proclaimed representatives – successfully mobilised the imperatives of modernity against Britain. It is then no surprise that the demise of India’s experiment in democracy, pluralism and economic transformation would trigger profound scepticism towards the project as a whole. This scepticism is also present in the book’s main theoretical anchors: despite Sircar’s recurring engagements with Marx and Marxism, his main interlocutors within legal theory (Goodrich, Kapur, McVeigh) have – despite their palpable differences – focused their energies on modernity, and in particular on its transmutations in colonial contexts.

The problem with this emphasis on modernity as the thread that binds together Indian (legal) history is that the modernist credentials of neoliberalism as an ideology, as system of governance and a model of capitalist accumulation are less than stellar. Hayek’s and other neoliberals’ attacks against state planning – both in the Global North and the Global South – relied on the fundamentally anti-modernist premise of the unknowability of the economy and its participants. This is more than an abstract theoretical point: from the argument that financial markets are too complex and volatile to be regulated effectively by states to fatalistic approaches to the management of infectious diseases, such as COVID-19, from the elevation of ‘risk’ and ‘uncertainty’ into central pillars of modern law and governance to the modalities of algorithmic decision-making that cannot be predicted or even reconstructed after the fact, invocations of ignorance and lack of control are not antagonistic to neoliberal states and markets, but rather the very mode through which they operate.

This is, undeniably, not the only modality of law and power today. Legal fields such as constitutional law, international law or human rights remain at least partially committed to their liberal-modernist assumptions. However, to over-emphasise the role of these fields in the rise of neoliberalism or the far-right in India and beyond is to show faith in the omnipotence of liberal legalism commonly exhibited exclusively by liberal legalists. Even though the continuities between liberalism and authoritarianism are very real, overstating their relationship runs the risk of both missing the uniqueness of authoritarian capitalism and of entertaining liberal delusions about its ability to tame the most destructive aspects of the capitalist mode of production.

The above does not translate automatically into a programme of tactical alliance with liberalism in law and beyond. It does, however, translate into a programme for both critical inquiry and radical action that is not determined by the divisions of the past. Analytically, it is important to acknowledge that the postcolonial developmental state (of the liberal, non-liberal and anti-liberal varieties) contained the seeds for the contemporary emergence of far-right forces, but it also contained the seeds for many other futures, both better and worse. (Third World scholars, including Baxi himself, have questioned singular histories of development and emphasised the existence of radical variations.) I am very sympathetic to Sircar’s commitment to thinking through and about underlying currents and broader structures that go beyond the contingencies of each separate historical moment (a testament to our shared sympathy toward Marxism). That said, his suspicion that legal practices, arguments and institutions common to liberal democracies carry the potential for immense violence and destruction needs to be constantly balanced against the reminder that fierce battles were fought within, beyond and against the law and that our current predicament is the result of concrete defeats as much as it is the culmination of immanent tendencies.


  1. I want to thank Adil Hasan Khan for his insightful comments and criticisms. All errors remain my own. ^