Judicial Discourse and Caste Violence

 

Aditya

Reading Bathani Tola and Laxmanpur Bathe Judgment* 

aditya 1“Everyone strives to attain the law...how does it come about, then, that in all these years no one has come seeking admittance but me?....The doorkeeper replies.......

No one but you could gain admittance through this door, since this door was intended only for you. I am now going to shut it.”[1]

The situation in which people of Bathani Tola and Laxmanpur Bathe are is much like the situation of the man who received this reply from the doorkeeper. Acquittal of all the accused and rejection of every witnesses account led to massive critique from the academic, activist, victims and survivor’s side of the judgment. The following paper is an attempt to sift through this situation of legal justice that was named as normalising injustice in legal way by many. The paper is an attempt to understand the judgment to reflect on judicial discourse emerging from the judgments in Bathani Tola and Laxmanpur Bathe. The discourse is set out in relation with citizenship and constitutionalism, with special emphasis on working of courts. The paper is divided in three sections. The first section shall attempt to unravel and make clear the relation between citizenship, marginalised communities (Dalits and Muslims), constitution and courts. This will be followed by brief explanation of judicial discourse and the discourse which appears in the judgments on Bathani Tola and Laxmanpur bathe. The final section shall attempt to explore the judgment and develop a critique based on caste with a brief input from constitutionalism. This shall strive to understand essences of caste, and its manifestation in instances of Narsamhar and Judgment. 

 Unintended Making Base for the Intended: Clarifying the Course of Action

This paper does not intend to provide a critique of state. It is more about engaging with the state in Bihar that is contextualized[2] in case of caste violence in central region of Bihar. It is further narrowed down to two judgments on cases of caste violence, that is, Bathani Tola and Laxmanpur (Lakshmanpur) Bathe[3]. The question then emerges is; can we not by engaging in this manner are capable of providing a critique of the State.

Second, it is not aimed at providing an adamant critique of the judgment as unjust[4]. It is an attempt to understand Judicial Discourse in general and in particular via these two judgments. It is about understanding how judiciary makes sense of violence. Why does it has such an understanding and what is left out in this understanding? It is more about asking why judgment came in this particular form, not in the form that we all had expected. The question that perhaps emerges is that can we not in this manner provide a critique of the judgment?

Third, the paper does not attempt to argue that judges and judiciary is caste biased[5], or has a dual character. The question then emerges that, can we not develop a critique of judiciary from vantage point of caste. If caste critique ought not to be based on the category to which judges belong, then from where can we extract it? It is more of a hermeneutic exercise to understand and come out with a criticism based on caste by reading the judgment. This is an attempt to respond in a manner Baxi proposes[6], but through using Guha’s ideas who argued that “criticism must therefore not start from naming a bias but by examining the components of the discourse, vehicle of all ideology, for the manner in which these might have combined to describe any particular figure of speech.” The paper attempts to understand and unravel in what form caste operates in the judgment, and forms, produces the judicial discourse as “it is necessitated by the fact that most statements about the dominated are produced within well defined fields of power.”[7] This might help in widening our understanding of both caste and judicial discourse.

And lastly, the paper from methodological point of view is based on reading judgment as literature. Reading judgment as literature in simple terms implies that these can be read as public documents by non legal scholars, activist, people, as Baxi would call them, “non authoritative interpretive communities.” The major aspect of reading judgment as literature for our purpose is to critique the judgment as any other text, identifying the usage of words, metaphors, rhetoric and narrative. The judgment is read to reflect upon the relation between citizen and the state, and does or does not these judgments are able to do justice to the ideals of human security and dignity; values that are part of essence of ethical vision of citizenship in India[8]. In addition to this, the fragment of these two judgments are brought out of their existential particularity of belonging to state in Bihar, to the, new chain of judgments by courts on caste violence. This elevation into new temporal and horizontal domain brings particular and universal together[9]. Caste has not been taken as a system or structure; rather, it is understood as a complex mode of interaction and consciousness. This de-materialization (structure and system) of caste and elevation at the level of consciousness is important to sift through the judgment. Caste is understood using an archaeological framework to understand the judgment and the judicial discourse[10]. And lastly the overarching framework is of citizenship. 

Citizenship and Courts: Ought to Disrupt the Moral Law

In India, the onset of constitutional democracy was a moment of multiple experiences, hopes and aspirations. The experiences were of violence and peace, disruption and restoration, enhancement and restriction at the same moment. The idea of citizenship that emerged from this context was not limited to legal status, but included ethical vision of a new social order based on equality, liberty, dignity and fraternity[11]. Thereby, Constitutionalism and the practice of constitutionalism[12] by political and legal institutions ought to reflect these visions in the processes. Therefore, in Indian context, citizenship in this form and courts has unique relation that needs to get imbibed in the practice of constitutionalism of the land. This ethical vision gets showed clearly in the often quoted words of Ambedkar who said in constituent assembly:

‘On 26 January 1950, we are going to enter a life of contradictions. In politics we will have equality and in social and economic life we will have inequality... We must remove this contradiction at the earliest moment, or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has laboriously built up.’[13]

Therefore, the entire gamut referred to as state in India, even though based on colonial model, operating in a post colonial setting was very different from mere mimetic working because of the ethical responsibility it had. Institutions thereby have normative obligation to fulfil these promises of citizenship. This matrix makes constitutionalism and the working of institutions normative in the manner that legal and ethical get combined.

But does this ethical conception gets toned down at the level of society smoothly. Few questions are relevant for our purpose here. Is citizenship an empty slot or counter which anyone can occupy? Does citizenship takes all under its purview or it is like a higher plateau for which many have to struggle to claim for citizenship? This question is a result of the repercussions of the moral law which often comes in conflict with the constitutional law when oppressed and wretched brethren organize, mobilize and struggle to exercise their citizenship rights[14]. The moral law, its governing becomes ample clear from Ambedkar’s relevant words,

‘So rigorous is the enforcement of the Social Code against the Depressed Classes that any attempt on the part of the Depressed Classes to exercise the elementary rights of citizenship only ends in provoking the majority, to practice the worst form of social tyranny known to history. It will be admitted that when society itself is a tyrant, its means of tyrannizing are not restricted to the acts which it made do by the hands of its functionaries and it leaves fewer means of escape penetrating much more deeply into the details of life, and enslaving the sole itself[15]

A social order of this form puts extra responsibility on the constitution to pierce deep into the society and change it so that citizenship could get realized in its full potential. This was put on courts in case of India, as Guru argues; ‘the constitution has given privilege to legal rights over moral rights. But, the constitution is aimed at a firm commitment to moral rights by enforcing legal rights through institutional mechanism. The court and other state apparatuses have the ethical responsibility of extracting moral rights out of unjust social order to make legal rights more meaningful, and to deal with millennium long cultural injustice in its various custom forms.’ The courts and citizenship thereby have an intrinsic relation that is based on piercing the unjust orders of society, extracting and supplanting liberty and equality throughout the social blanket made of unjust threads. This could be done by interpretation of constitution, and law formations. In cases of caste violence, this could be done explicitly by the judgments. The judgments that form the main component of judicial discourse of judges need to be understood and explained in this light.

Judicial Discourse and The horrendous Judgments[16]: Setting the agenda

“मुकदमेमेंजय - पराजयकानूनीबातोंपरइतनीनिर्भरनहीहोती , जितनीहाकिमकेदृष्टिकोणऔरव्यक्तिगतरूचिपरनिर्भरहोतीहै।“[17]

“In order not to write like a judge one must try to find out how the judge wrote.”[18]

What is a judgment and how does it forms the judicial discourse? What is the nature, the impact and consequences of a judicial discourse? In simple terms, judgment is the official pronouncement of the event. It is re-presentation of what ‘really’ happened. It is the discourse of the judge. Not to make a mockery, but judgment appears as a theatre in which abstract actors namely the prime witnesses, prosecution, defendant, accused, judges, law, and court’s language of etiquette produce an entirely different reality that might be new for many who are part of the theatric act, primarily the prime witnesses. Judgment of judge could be considered as the primary and most powerful among the judicial discourses not only because of the importance of judge, but also, as Ramnath argues, ‘judgments unlike a literary or philosophical text, records the taking away of someone’s life and liberty. It has the power to alter the material realities of people, to the extent of suspending their life and liberty, and, vice versa.’

Judicial discourse, in brief, refers to the way judiciary makes sense of ‘case’, or social-political reality that confronts it. Since it is a discourse, it seeks to provide meaning and coherent explanation (chained, linking every fragment) of the confronting reality. The discourse has a specific functional (not functionalism) task and it uses multiple tactics to perform that task. The primary functional task or method is to elevate the social-political into the “abstract domain of legality, of law and order”, trapping it into specificity of “narrowly defined legalities”, into the web of extraction through which judiciary can further penetrate. The additional functions performed and tactic used is that “plurality of utterances” in form of statements from mother, father, brother, friend, neighbor, for our case, labourer, oppressed, wretched, Dalit are erased and only one relation of them being judicial evidence is set. As a discourse, judiciary provides a meta-narrative, this, then this, then that, sequential narrative of an event in conformity “with the logic of legal intervention”. It reproduces reality admitting and claiming its narrative as the only mode which explains how thing had happened and ought to happen. This is done through ‘establishing and not establishing culpability, by fixing responsibilities, establishing legality and illegality of an action, making a chained a connectivity of events leading up to and ending of the occurrence’[19].

The question that emerges is what kind of judicial discourse emerges from the judgment on Bathani Tola and Laxmanpur Bathe. In what ways the narrative was constructed? Which events were described as episodic or configurational[20]? The judicial discourse of Bathani Tola and Laxmanpur Bathe sews the events in a legally beautiful and intellectually artistic manner in such a way that every event; refusal of witness account, acquitting the accused appears as legally just and thoughtful application of criminal justice. The narrative that gets build in both the judgment could be summarized in following words.

In Bathani Tola, “on 11 may 1996, in the afternoon at about 2 pm, carnage took place in which, a group of armed people killed 18 persons on the spot who were all ladies and children in broad daylight, two more died subsequently”. The culprits got away because of the unscientific nature of investigation and unreliability of witnesses who tried to entrap as many people as they can. It is regretful and a misfortune “that such a carnage and ghastly incident took place, where persons were brutally massacred but what actually happened has not been truthfully and correctly recorded”. The witnesses account and defense’s counter argumentation suggests that “there has been a deliberate attempt to conceal the truth in its material particulars.” The criminality could not be imposed on the accused who were “arrested as sitting ducks.” There is no doubt that “carnage stands established,” but the delay in writing of Fardbayan, concealment of first information report, and, witnesses contradictory accounts reveal that there was “enough time to the people to meet, discuss and plan out the story.” It is unfortunate that because of “unexplained delay” by the police, lower courts “insensitivity”, and faulty investigation by “the investigating agency the true culprits have escaped gauntlet” and innocents had to “spend long time in prison.” 

In contrast to the witnesses who have been contradictory and shifting in their positions, all “the accused are consistent that they have been falsely prosecuted by their neighbours.” The investigation has to be “free of all infirmities, which may lead to grievance on part of the accused that it was not fair or carried out with an ulterior motive”. Tragic trauma of ghastly inhuman behavior, “sentiments howsoever strong are neither relevant not have any place in a court of law”. “Heinousness of crime or cruelty in its execution however abhorrent and hateful cannot reflect in deciding the guilt.” Rule is one, ‘whether the witness, who claim to have seen the incident in this case, withstand this test of being honest or true or not.’

“Acquittal or conviction depends on the criminological chain” that stands as not established in this case by the prosecution. There are yawning gaps in the story of prosecution. “Shadows there are dark enough to eclipse the truth”. “These are enough to nail the coffin for the prosecution.” Thanks to the misguided investigation and prosecution, “who actually perpetuated the crime got away with it.” All “appeals are allowed as the prosecution failed to prove the involvement of the appellants in the crime”.

In Laxmanpur Bathe, a sequential narrative is as follows, that on 1-12-1997, around 10.00 pm hundreds of unknown persons, came and indiscriminately killed 58 persons including 27 women and 16 children. The lower court based the judgment on precedents set by the honorable Supreme Court and courts in other state. It has been argued by the prosecution that in cases of violence where “accused and the victim are known to each other living in the same village or adjoining village”, identification is possible with a “three cell torch”, “gesture,” “walking.” The “recognition of miscreants is fully possible as they saw the members of their family… killed in front of them.” Even if eye witness has concealed themselves; the “accused can be identified even in the darkness with the help of the torchlight.” The accused were known to witness thereby “identification in faint darkness was possible.” The rejection of prosecution case could not be made solely on basis of delay in receipt of FIR to reach court, if the witness does not give contradictory statements. And the idea, of accused feeling that the investigation has been unfair can’t be the sole basis of refusing the case. It has to take into account the claims of victims as well. The court considers these precedents but it is pointed that the “delay of FIR” becomes a serious matter if there has been delay by “the investigating officer to take statements” when witness were available at the incident. It further develops doubt “if there are concomitant circumstances to suggest that the investigator was deliberately making time with a view to decide about the shape to be given to the case and the eye witness to be introduced.” It is serious that the case diary statements of some witnesses were not produced. But more importantly, the witness did not give any name to the investigating officer on the date of occurrence. “If witnesses had any clue about them, they would have disclosed the names to the first investigating officer.” The prime eye witnesses “were not examined on the 2-12-1997.” They did not give any statements on the 2-12-1997, since they “had no clue about the occurrence which they were required to give to the police.” Omissions, “confusion,” infirmities and “unreliable” account of witness cannot hold for the arguments of “trauma,” tragedy or “mental tension.” It is “the duty of the court to separate grain from the chaff.” Therefore, it is noted that the “witnesses are not reliable; appellants deserve benefit of doubt, which is, accordingly granted.” Also “there being no dispute about factum of death, injury, having been caused to 58” people, the state is obliged to compensate.

What comes out from both judgments is a meta-narrative of what happened and is happening during trials. The court with legal arm establishes that the killing happened with usage of specific words by unknown persons, but, also, that there is another politics of framing the accused. The witnesses are unreliable, and those who survived the killing, the eye witnesses are unreliable because of shifting and confusing stands[21]. The pre history of event, that is, struggle for wages, Ranvir (Ranveer, Ranbir) Sena’s fight for dominance, far left ideological mobilization are rejected by the court and only one explanation remains.

The “episodic moment” is able to show the tenderness of “moments of risk,” and prosecutions chain gets broken by the defense. The episodic moments in these judgments are unexplained factum of dispatch on time yet delay in receiving of receipt by the magistrate, the non examination of major witnesses (in court’s view) by the prosecution that is chauwkidars, police personnel who had generated a written information. In addition to these, episodic moments also include the situation of statements not taken on the occurrence day, the shifting stands of witnesses, and, the coming of political persons. The primary episodic element is delay added with these concomitant circumstances that lead to configuration of witnesses meeting, building stories and prosecution framing the case so as to move in a direction where accused could be blamed and punished.

This account by the judiciary and the rejection of prosecution’s case shows that defense was able to particularize the prosecution’s case, and, a new master narrative was able to get built by the judiciary. What happens in this is that in both the possibilities the master narrative of judicial discourse gets the prominence. It claims its victory over all other narratives and explanations. But does the master narrative was framed solely by legality. Or there was an element of power which acted secretly to the extent of framing the legal discourse? The next section deals with the questions of loopholes, or, blindness of judiciary, injustice and marriage of caste and judicial discourse.

Judicial Discourse as Practice: Caste, Constitutionalism and Injustice

The following section shall attempt to pierce through the abstract legality of judgments to unravel the rules that guide the judicial discourse. These rules are not limited to abstract legality as being sovereign in itself. But, these are molded by practices of caste, which are manifestations of essence of caste. These practices not just lead to various loopholes in the discourse of judiciary to establish crime, but, also reflect the way the judgments are framed. What appears as natural and legal becomes political in a different way. It would be better to start with how claims have been made to be critical of institutions like judiciary. To use Foucault,

“The real political task in a society such as ours is to criticize the workings of the institutions that appear to be both neutral and independent, to criticize and attack them in such a manner that the political violence that has always exercised itself obscurely through them will be unmasked, so that one can fight against them.”[22]

Does the court’s functioning in cases of caste violence in Bihar was able to keep up with the practice of constitutionalism in India? The constitution of India envisages an insurgent idea of constitutionalism which could be in dire opposition to constitutional moralism, but, in peace with constitutional morality. As Kannabiran argues, “It gives voice to the counter hegemonic imagination of justice, rooted in the resistance movements and argumentative traditions that have blossomed in the region. For historically oppressed classes, constitutionalism continues to hold promise for change.” In the same module Baxi argues that constitutionalism ought to accommodate views  coming from the “cultural software around constitutions.” In case of these judgments, as Kandasamy and other Human Right Activist groups hold, that judiciary did not take into account the struggle by wretched for both economic issue of wages and land right, and tangible issues of izzat or dignity[23], issues which form the core component of ethical vision of citizenship in India. The question then emerges is why the judgment is silent on these background conditions? Does or does not caste plays a major factor in formulation of judgment? If it plays an important role, then in what manner?

For our purpose, a lot needs to be added so that the suffering faced because of temporal hiatus, denial of practice of constitutionalism, rejection of the rural mobilization of and by oppressed, could get more substantive base. The dominant methodology of understanding caste as a structure or system cannot help much, since; the warped sheet of judicial discourse is not reflective of these. Instead of these an archaeological approach can help in building a theoretical understanding and critique of the discourse.

Guru in his seminal work on Untouchability has tried to explain archaeology and its importance by drawing on Foucault’s idea[24]. Caste in this module does not ‘remain an ordered or open design. It plays out quite secretly and subtly.’ It remains as an essence around which many layers have developed and surrounded in such a manner that although caste governs those layers, yet, it remains opaque. The layers could be of legality, humour, pedagogical training, and sequences, the listing of qualifiers, universal modern identities, and modern sheets of social relation etcetera. These layering and multiple levels of layering make caste hidden and anonymous. Archaeology becomes useful in these hidden and opaque contexts where layers make the “pure self” hide behind the “universal identities”. For our purpose, judgments are such a site of layers of complexity and anonymity[25]. It might surprise that entire judgment hardly focuses on Dalits, caste, except in naming the acts which were used to explain the category of the victims. The rejection of witnesses neither uses caste basis, nor contains derogatory caste remarks. Instead it is an exceptional example of pure legal proceedings. The judgment is so opaque, dense, dark that making allegorical comparison with laws of Manu[26] or claim of judges being Casteist[27] cannot hold for long, rather it further narrows down the horizon of understanding and is insufficient to make one understand dynamics of caste in modern institutions in India.

Are we trying to decipher the manifested practices of Untouchability in the judgment? Apparently not, this paper is more concerned with idea of revealing and coming out with manifested practices of public morality that include consciousness, norms and idea of punishment, that form the essence of caste[28]. There is no doubt that the practices of Untouchability are manifestations of essence of caste, but, it is not the sole of essence. To be brief, caste as an essence includes the moral rules that ought to be followed in public and private sphere, the moral consciousness that emerges from these rules and training in these rules via conducting the behaviour, mythologies, cultural imbibing of these and, the tactic of punishment by Samaj[29]. The judicial discourse is full of instances where these under and beneath the veil of opacity could be shown. To be brief the judgment consists of statements like

“People, who were intent to liquidate everybody, naturally would have seen that there were no male members, they would have searched for male members who were all hiding in very close proximity to the village itself.”

“......surprisingly, the witnesses....from time to time, unconcerned of their safety which is quite unnatural”.....tried to look......

“It is unlikely that the informant would leave the place where he has concealed himself to the risk of being seen by the assailants....”

In addition to these, the judgment further contains instances where again the judiciary is passing comments that the

“Killers would not be exposing their identities in broad daylight.”

They would not be roaming as showing their face to the people who knew them. Not to mention that the importance of these words, that is, likely, unlikely, probable, natural, unnatural needs to be dissected from the notions of criminality and judicial truth. In cases of judgment on caste violence, these words have been used under the guise of establishing the truth of crime, but, framed by the mind of caste. It could be argued following Kandasamy “that to kill everyone is natural, because the feudal, caste Hindu brain of judiciary cannot accept anything else as the norm…..because this is what Brahmin Parasuram did to annihilate the race of all kshatriyas. What is unnatural is that Dalits managed to survive, to hide, to live and tell their tales.”[30] This argumentation could be extended to claim that the proximity of hiding faces comes from the idea of Avatar (incarnation) of God. A caste mindset cannot imagine an avatar (conducting act of Hindu justice) in its true form. It has to be hideous, covered, masked. Instead of arguing that the accused were arrested as sitting ducks, counter could be made that they were resting like noble warriors who have done their part of justice. Perhaps this is what Brahmeshwar Mukhiya intended to say in his interview,

“Hanuman in his fight against Ravana set on the fire the whole of Lanka. It is fair if the fight against demons involves destroying the womb.”

In addition to the usage of these words in sentences, certain other words reflect the same discreet nature of caste. The judgment keeps on using the words like misfortune, tragedy, carnage, factum of death, ghastly, but, never the word injustice[31] is used. Denial of caste element in the judgment to explain social reality is a very astute example of caste as guiding the judicial discourse. Since a caste mind cannot consider injustice by caste consciousness as unjust. It would be at last a tragedy only; it can’t be unjust, since for this consciousness, caste is inherently just. The only justice which an Untouchable (Dalit) can get is that which is granted by the Touchable. “Nothing is due to him except what the Touchable are prepared to grant[32].” This psyche of granting by the Touchable is manifestation of morality of caste. It gets clear in another opaque manifestation in the court’s order to compensate the kith and kin of relatives of those who were killed by caste morality.

“No dispute about the factum of death…..the state is obliged to pay compensation to the next of kin……”

Does this amount to a relative and particularistic argument? Or does this argumentation holds universal validity? Why shall we accept this form of argumentation if it is built on two judgments? Is it not a possibility that judicial discourse and caste have no relation at all? Is it not possible that this an exaggeration?

Ours is a case of an untamed fragment in a particular context[33]. The case of judicial discourse in Bathani Tola and Laxmanpur Bathe is similar to the problematique of untamed fragment which is part of a series that need to be de-contextualized and situated in a different series. This needs de-contextualization from its particularity and situating it in the larger judicial discourse as developing out of judgments on instances of caste violence of mass level as happened in Bathani Tola or Bathe, Khairlanji, Tsundur, Kilvenmani or particular cases of Bhanwari Devi, Snehlata etcetera. All these judgments and legal proceedings, the multiple levels of judicial discourses are full of phrases, words that show the rule of caste in giving shape to the judicial discourse. The judgments in cases mentioned above have presence of these Casteist remarks, like,

“It was unnatural for upper caste men… to defile themselves from rape of a Dalit woman”… in Bhanwari Devi judgment,

“Why they did not burn all the streets….” in Kilvenmani massacre judgment

“Witnesses, who are not able to furnish the name of their companions, were made to spell out not only the names of hundreds of accused, but also their fathers…” in Tsundur judgment

This demands fragment’s re-contextualization to get better hold of the discourse. Caste’s dominance could be seen from the elision of the idea of collective conspiracy of dominant caste in conducting the crime. It appears as quite disheartening and shocking that the judicial discourse is not able to take into account, as Kannabiran argued, “the expression of conspiracy which is open and part of public morality.” To be brief, these acts of violence are not sudden, impulsive, indiscriminate acts of violence. They have strong force of past behind them, with justification in the public morality based in caste ethos that guides the conduct of individual. If seen through archeological lens, then it no more remains shocking. Morality and moralizing morality of public develops simultaneously with vulgar forms of punishment[34] that are aimed at teaching a lesson[35] to those who do not abide by norms and codes of Samaj, in this case, codes of caste. These are done with proper tendency to teach lessons and have moral justification in the culture of the ‘pure self’. Perhaps this is what Brahmeshwar Mukhiya meant when he said in his interview with Dan Morrison that

“Violence for restoration of peace and harmony is not a sin”[36]

What appear through this contextualization is that caste in its most discreet and subtle forms, is able to guide and forms the rules in which judicial discourse is set out. The individuals convicted, accused or acquitted are never able to bring the complex interaction and role that caste had in it. It appears that behind the warped sheet of judicial discourse and its representation of reality, caste smiles as the meta-figure that was never touched, neither brought under scrutiny. This paper attempted to understand the way caste molds and produces judicial discourse and interaction between legal and the political. To quote Ambedkar,

“The police are drawn from the ranks of caste-Hindus. The Magistracy is drawn from the ranks of the caste-Hindus. The police and the Magistracy are the kith and kin of the caste-Hindus. They share the sentiments and the prejudices of the caste-Hindus against the Untouchables. As every untouchable will be able to testify, if an Untouchable goes to a police officer with a complaint against the caste-Hindu instead of receiving any protection he will receive plenty of abuse. Either he will be driven away without his complaint being recorded or, if it is recorded, it would be recorded quite falsely to provide a way of escape to the Touchable aggressors. If he prosecutes his offenders before a Magistrate the fate of his proceedings could be foretold. The Untouchable will never be able to get Hindus as witness because of the conspiracy of villagers not to support the case of the Untouchables, however just it may be. If he brings witness from the Untouchables, the Magistrate will not accept their testimony because he can easily say that they are interested and not independent witness, or if they are independent witness, the Magistrate has an easy way of acquitting the accused simply by saying that the Untouchable’s complaint did not strike as a truthful witness. He can do this fearlessly, knowing full well that the higher tribunal will not reverse his finding……”[37]

As it appears from the discussion that caste as an essence and its manifestation in form of enforcing codes and behavioral conducts does not remains confined to private spaces. Instead it creeps in and becomes the modality around which power relations gets centrifuging, in a manner, that it bases the platform on which edifice of judicial discourse is constructed. We don’t need to deny the fact that the reciprocal tendencies do exist which maintain this cozy comfortable coexistence of these distinct forms of organizing that govern the individuals in society.

Conclusion 

The paper attempted to understand judicial discourse, role of courts, citizenship and caste in India. The primary emphasis was on understanding what kind of vision does constitution of India envisages in conceptualizing citizenship and role of courts for realization of that ideal. The major literature used for understanding this was judgments on caste violence, since these acts of violence reflect the most brutal assault on vision and idea of citizenship for the marginalized. The judgment though legally just in character is not devoid of injustice. The paper in addition to this, attempted to understand the caste based existing critique of the judgment and moving ahead of same. The purpose was not just to develop an alternative understanding, but, also to develop a more comprehensive understanding of how caste operates in most modern practices of state. It could be concluded that in cases of judgments on caste violence that are perhaps most important sites to disrupt and shatter the moral law, courts have performed miserably. The blame for this ought not to be imposed on functioning of judiciary or the caste category of judges. Rather it needs to be understood by posing foundational question of why the judgment came in this form and not the form which we many of us had expected. This would not only help in moving beyond the black and white explanation of functioning of modern institutions, but, also reflect how layered and enmeshed is the working of pre-modern beliefs, prejudices in administrative apparatus of modern state. They work in such a manner that not only it gets shaped by the latter, but, it guides, forms the rules and governs the latter in ways, that these enforcing cultural codes, the techniques of punishment, remain out of focus. Caste as came out in our analysis forms and guides the judicial discourse in manner of not just passage of judgment but also the entire corpus of investigation or enquiry that is not equipped enough to take into account the opaque working of public morality, that is a manifestation of essence of caste.

 

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*I would like to acknowledge the Nehru Memorial Museum and Library for being a place of learning these days, for making available the important reading material. Special thanks to Harish Wankhede and Saroj Giri for clearing my thoughts on Methodology, Archaeology and Punishment. I would like to acknowledge the effort of my close friends to constant deliberate and refute my claims which helped me in writing down this paper. The paper has taken some arguments from the paper submitted in the course Approaches, Concepts and Methods of Political Analysis, to Amir Ali, CPS, JNU in MPhil First Semester (2015) course. The name of paper is Theorising Custom Based Torture.   

Notes

[1] This is taken from Kafka’s parable. For more refer to Kafka, Franz. “Before the Law.” Nahum, Glatzer. Franz Kafka: The Complete Stories and Parables. New York: Quality Paperback Book Club. 1971. 3-4.

[2] Contextualizing is important not just because of methodological imperatives, but also to develop a coherent structured argument that is close to reality. There are many judgments by the honourable Supreme Court and other courts that are in favour of social justice. In addition, the trial courts in many states have convicted the accused (by law, proofs, or by public pressure). For reasons mentioned above, the state has been contextualized in these two judgments and localized in Bihar. 

[3]Bathani Tola and Laxmanpur Bathe are names of villages where the Narsamhar took place in which around 79 people were brutally tortured and killed. Narsamhar was initiated and completed successfully on 11-7-1996 afternoon (2 pm) in Bathani Tola. While the night of 1-12-1997 is witness to the spectacle of dancing death in Laxmanpur Bathe. These villages fall under Bhojpur district and Jehanabad district of Bihar respectively.

[4] There is a respectable amount of literature that cites these judgments as unjust because criminality and responsibility of crime has not been established on accused. The literature is less about questioning why an enquiry commission was not made to further investigate if there was lack of scientific investigation. These are more about condemning and criticizing the judgments. For more refer to Teltumbde, Anand. Of caste Massacres and Judicial Impunity: Bloodstains in Bathani Tola and Laxmanpur Bathe. 5 March 2014. 18 April 2016. <http://www.countercurrents.org/teltumbde050314.htm>. 

[5] These judgments have been in news and a part of debates, discussions for not only being unjust, but also to question the caste category to which judges belong. This assertive argument of judges being upper caste, thereby having a natural affiliation for their caste brethren was put forward by reputed journalists. Extending the former, arguments were made and are still made to comment that caste biasness have come out in full glory in these judgments. 

[6] Baxi in his seminal piece on the exploring the idea of Judiciary as a resource for Indian Democracy comments that judging the judges has become a kind of favourite pastime in India today. This is critique but no real critique. Baxi claims that real critique could emerge through reading the entire judgment. Criticism of judges is an important democratic virtue, but easy minded criticism of judges cannot replenish the Indian democratic future or future of Human Rights in India. For more refer to Baxi, Upendra. “The Judiciary as a Resource for Indian Democracy.” Seminar (2010): 1-13.  

[7] For more refer to Amin, Shahid. “Approver's Testimony, Judicial Discourse: The Case of Chauri Chaura .” Edited by Ranajit Guha. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. 166- 202.

[8] A large part of this methodological argument is taken from Kalyani Ramnath’s article on reading judgment as literature. For more refer to Ramnath, Kalyani. “The Runaway Judgment: Law as Literature, Courtcraft and Constitutional Visions.” Journal of Indian Law and Society. 1-28.

[9]The de-particularization and re-contextualization of these judgments in the new chain, that is, horizontally and temporally in the stream of other judgments (Kilvenmani, Tsundur, Shankaribagha, Khairlanji, Nagri Bazar etcetera) on caste violence can help in making a universal argument and theoretical critique of state.

[10] The archaeological understanding of caste is extracted from seminal piece by Guru on Untouchability where he uses this framework to understand the different ways in which Untouchability is practiced. For more refer to Guru, Gopal. “Archaeology of Untouchability.” Gopal Guru, Sundar Sarrukai. The Cracked Mirror: An Indian Debate on Experience and Theory. New Delhi: Oxford University Press, 2012. 200-222.  

[11] The onset of constitutional democracy had these ethical normative obligation enshrined in the vision of citizenship that constitution notifies in different sections. It was not just about legal status, but an ethical status which meant challenging and doing away with ascriptive unjust hierarchies, ”new social order different from colonial order, and order before colonial rule”, non discrimination etcetera. For more refer to Kannabiran, Kalpana. “Introduction: Liberty and Non-Discrimination-The Scope of Intersectional Jurisprudence.” Kannabiran, Kalpana. Tools of Justice: Non Discrimination and the Indian Constitution. New Delhi: Routledge, 2012. 1-45.

The legal status of citizen, idea of citizenship has been explained at length and in minute details by Rodrigues. Author briefly explains the details and makes way for developing the normative ethical vision of citizenship in India. The ethical normative vision could be extracted from works of Rodrigues, Guru and Leaders like Ambedkar etcetera. For more refer to Rodrigues, Valerian. “Citizenship and The Indian Constitution.” Bhargava, Edited by Rajeev. Politics and Ethics of Indian Constitution. New Delhi: Oxford University Press, 2010. 

[12] This usage of words is based on work on Baxi on constitutionalism in India. For more refer to Baxi, Upendra. “Outline of a 'Theory of Practice’ of Indian Constitutionalism.” Bhargava, Edited by Rajeev. Politics and Ethics of Indian Constitution. New Delhi: Oxford University, Press, 2010. 92-118.

[13] See Dhananjay Keer,Dr. Babasaheb Ambedkar. Popular Prakashan, Mumbai, 2009, p. 415.

[14] Rights, as a concept are to some extent instrumentally normative in nature. Unlike liberty and equality which have intrinsic normative value, rights have an instrumental worth to make claim for liberty and equality. This argument was developed in the class of Professor Ashok Acharya. The name of the paper is Debates in Political Theory, Masters in Political Science, First semester, University of Delhi (2013-2015).

[15] For more refer to Kannabiran, Kalpana. “Contextualizing Jurisprudence on Caste.” Kannabiran, Kalpana. Tools of Justice: Non Discrimination and the Indian Constitution. New Delhi: Routledge, 2012. 124-161.

[16] I have taken this term from conversation that I had with Professor Gopal Guru on the matter concerned. Gopal Guru teaches at Centre for Political Studies, Jawaharlal Nehru University. He uses the term horrendous judgment for multiple judgments that have come out on different instances of caste violence in different states in India. The nature of Judgment, callous attitude, injustice, horrible and shocking natural explanations, usage of words and metaphors are few characteristics that comprise the term horrendous.

[17] For more refer to Rai, N K. “Kanun Nahi Jaj ko Padho.” Rai, N K. Adalat Kay Jharokhey Say. New Delhi: Prabhat Prakashan, 1984.

[18] See Amin, Shahid. “Approver's Testimony, Judicial Discourse: The Case of Chauri Chaura .” Guha, Edited by Ranajit. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. 166-202.

[19] This explanation is based on explanation of Judicial Discourse by Shahid Amin and Ranajit Guha. For specific details See, Amin, Shahid. “Approver's Testimony, Judicial Discourse: The Case of Chauri Chaura .” Guha, Edited by Ranajit. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. p 190.

And, Guha, Ranajit. “Chandra’s Death.” Guha, Edited by Ranajit. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. p 141-142.

[20] Episodic and configurational elements are used by Amin, following Barthes, in his explanation of judicial discourse. In short these refer to the way certain questions are posed to make a chained sequence of event and brought together under a configuration to make sense and meaning. For more refer to Amin, Shahid. “Approver's Testimony, Judicial Discourse: The Case of Chauri Chaura .” Guha, Edited by Ranajit. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. P 180, 186.

[21] The judgments is full of account of witnesses and their cross examinations. The defense witnesses and arguments made by defense had led to layer by layer refusal of prosecution’s witnesses accounts. The criminality and motive of crime could not be established on the accused. To name a few, questions such as how can the witness see the face of killers face when she was hiding under bed from where only leg could be visible. The presence of witness could not be established because where did she was shot, mark, and fracture of finger has not been established. How could witness see faces of killers from roof of the house when he claims that they were retreating at that point of time? It is not reliable to believe in the witness since he claims that he was present in the room where killing happened while he showed the other room to the investigators. The prosecution has not examined the person with whom witness spend the night, it is more of a story etcetera. There are many other instances where witnesses are put against one another to counter and refute claims of all of them. This includes that witness A did not mention that he saw Witness B; while B mentions that she was in the house of witness A (names are not written in paper, since it is a pattern in both judgments). These arguments are used to claim that witnesses are unreliable. There legality and justness could be explained by legal experts. For our purpose, it is important to focus on some words used in the judgments that reveal a different essence as has been explained in next section.        

[22] For further insights refer to, Noam Chomsky, Michel Foucault. “Human Nature: Justice Vs Power.” 1971. Chomsky.info. 18 April 2016 <https://chomsky.info/1971xxxx/>.

[23] For more refer to, People’s Union for Democratic Rights. Bitter Harvest: The Roots of Massacres in Central Bihar. Delhi: Secretary: PUDR, 1992.

[24] Archaeology for Foucault as Guru argues, tries to define ‘not the thoughts, representation, images, themes, preoccupations that are concealed or revealed in a discourse, but those discourses themselves, those discourses as practices obeying certain rules. It does not treat discourse as a document, as a sign of something else, as an element that ought to be transparent, but where unfortunate opacity must often be pierced if one is to reach at least the depth of the essential in the place in which it is held in reverse, it is connected with discourses in its own volume as a monument. It is not interpretive discipline, it does not seek another, better hidden discourse, it refuses to be allegorical.’   

[25] This explanation is developed on the arguments made by Guru in his work on Untouchability. For more refer to Guru, Gopal. “Archaeology of Untouchability.” Gopal Guru, Sundar Sarrukai. The Cracked Mirror: An Indian Debate on Experience and Theory. New Delhi: Oxford University Press, 2012. 200-222.

[26] This straight comparison has been done by Teltumbde and others in their seminal works on caste violence, especially on Bihar and Khairlanji. In addition to methodological problems, this kind of straight comparison is not able to grasp the changing realities with time, especially the coming of modern way of governing.

[27] Kuldeep Nayar, as quoted in Teltumbde’s article on counter currents. For more refer to Teltumbde, Anand. Of caste Massacres and Judicial Impunity: Bloodstains in Bathani Tola and Laxmanpur Bathe. 5 March 2014. 18 April 2016. <http://www.countercurrents.org/teltumbde050314.htm>.

[28] I am grateful to Harish Wankehede, who teaches at Centre for Political Studies, Jawaharlal Nehru University for clearing my thoughts on essence of caste. 

[29] Guha uses Samaj as a term to “reflect the institutional aspects of society in which moral and political attributes are happily collapsed”. It could be extended to argue that Samaj with the conflation of both shastric and custom based interpretation of same controlled and still controls the behaviour, conduct, sexuality of women, and, caste groups in India.

[30] Kandasamy, Meena. “No One Killed the Dalits.” 22 November 2015. Towards a New Dawn. 4 March 2016 <http://toanewdawn.blogspot.in/2015/11/no-one-killed-dalits-part-i-by-meena_21.html>.

[31] Explicit account of injustice from theoretical point of view has been provided by Judith Shklar. She considers injustice as a social phenomenon and differentiates it from the misfortune. Injustice is a socio-political phenomenon which includes acts of law, state, social modes of control, custom etcetera. The silence on issues of injustice by the courts, middle class is very similar to relation between a passive unjust citizen and injustice. Shklar makes argument that injustice also happens because of passively unjust man who remains indifferent to what goes on around him, especially when he sees fraud or violence, in cases of crime he just looks away, remains a busybody. For more refer to Shklar, Judith N. The Faces of Injustice. New Haven: Yale University Press, 1990.

[32] To have a thorough, lucid and comprehensive explanation of Ambedkar’s critique of Hindu idea of justice and his ideas of Social Justice, refer to, Guru, Gopal. “Ambedkar's Idea of Social Justice.” Shah, Edited by Ghanshyam. Dalits and The State. New Delhi: Concept Publishing Company, 1987 40-50. 

[33] Guha tried to problematizes the issue of untamed fragment and condition of contextuality. It is important to neutralize the effects of decontextualization by situating the fragment in a series. The specimen of untamed fragment shall be situated in a series. As Guha argues “For the principles according to which a series is constructed and the character of the constructing authority, are all relevant to one’s understanding of what is serialized.” For more refer to Guha, Ranajit. “Chandra’s Death.” Guha, Edited by Ranajit. Subaltern Studies V: Writings on South Asian History and Society. New Delhi: Oxford University Press, 1987. p 139.   

[34] For more comprehensive understanding on relation between morality, norms, responsibility and punishment, refer to, Nietzsche, Friedrich. “Guilt, Bad Conscience.” Edited by Keith Ansell. On The Genealogy of Morality. Cambridge: Cambridge University Press, 2007. 52-55.

[35] Teaching a lesson was the argument developed in the paper Theorising Custom based Torture. It came out from the reports of caste violence, atrocities, conducted by People’s Union for Democratic Rights, and the works which had content of sensitive reportage that these acts were conducted to teach a lesson to the people for not following the caste norms. For more refer to Alosyius Irudayam, Jayshree P Mangubhai, and Joel G Lee. Dalit Women Speak Out: Caste, Class and Gender Violence in India. New Delhi: Zubaan, 2011. 

[36] The full interview is available by following name, Mukhia, Brahmeshwar. A Final Interview with Brahmeshwar nath Singh Dan Morrison. Monday June 2012.

[37] These prophetic words are taken from seminal work of Ambedkar on Untouchables and Untouchability. For more refer to, Ambedkar, B R. “Essays on Untouchables and Untouchability.” Education Department, Government of Maharashtra (Edited): Writings and Speeches, Volume 5. 1989.

~~~

 

 Aditya is pursuing MPhil in Political Studies from Centre for Political Studies, School of Social Science, Jawaharlal Nehru University. He is working on the theme of Understanding Land Question with special reference to Bihar. He earned his Post Graduation in Political Science from University of Delhi. 

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