Power, Law and Brutality: The Link between Colonial and Post-Colonial India

Noor Ejaz Chaudhry

Say yes to freedom, peace, dignity and respect for all. Say no to terror and repression against all living beings. In the beginning was freedom.

Jolly Kanjappu, The Berlin Wall 1990

This quote sets the tone for K.G. Kannabiran’s acclaimed book, The Wages of Impunity, as he revisits human rights violations occurring as a result of the postcolonial Indian state’s struggles to retain power and suppress people’s resistance in realising their fundamental rights. He offers a personal account entwined with an analysis of how the legal system, in conjunction with the judiciary, executive and military, has validated atrocities committed with impunity. He insists that this link between power, law and brutality is a colonial framework perpetually embedded in India’s legal system. Essentially, India continues to utilise the same system even after its independence from British Raj, ensuring continuity between the colonial and postcolonial state through an internalisation of colonial politics of law and violence.

Defining the ‘state’ to be institutions forming it, i.e. the police, judiciary, legislature and executive, Kannabiran’s key argument is that the postcolonial nation has played a central role in enforcing brutality against its people. In this context, he considers the interrelation between state institutions and how each validates the other in justifying collective state power. Even the watershed achievement of the development of the Indian Constitution, 1950, promising transition of individuals from being subjects to citizens, could not help realise the dream of freedom.

This is precisely because the state machinery not only validated existing repressive colonial laws but has also enacted modern legislation leading to the suspension of individual liberty. The idea of suspension of rights, for instance, enumerated in Chapter III of the Indian Constitution through states of emergencies, has been used as an instrument to undertake citizens’ brutalisation. This, however, is a grave violation of the Constitution which is essentially a hard-earned document of people for their struggle for independence. Thus, it cannot take away fundamental rights on the pretext of maintaining public order. Kannabiran, however, also recognises that the Constitution itself validates the derogation of human rights via Articles 22, 352 and 353, enacted for maintenance of security and order, eventually creating a paradox.

Kannabiran uses preventive detention legislation, encounter killings, anti-terrorism legislation and emergency powers to exhibit how the Indian state has committed atrocities against its people, and how the judiciary has validated this through jurisprudence. He argues that courts have frequently necessitated this brutality on grounds of national security and public order, stating that these are broad and generic terms validating carnage by the state. However, he concludes in each of his chapters that this form of brutality has found it utility only only in repressing political opposition and political movements. In Chapters 1, 3 and 4, he links this phenomenon to the colonial exercise of state power, giving examples of the Rowlatt Acts, 1919 and the Meerut conspiracy case where emergency powers were used to suppress political dissent.

For anyone aspiring to become a human rights advocate in a South Asian legal system that has adopted repressive colonial laws, Kannabiran’s book serves as an account that one can empathise with and a code that one draws inspiration from. He asserts the need to break from colonialism’s shackles and expresses the desire for an aspirational Constitution, serving civilians’ individual liberties. Throughout the volume, while criticising the judiciary for validating actions that have curtailed human rights in India, he aptly discusses how this is, in fact, caused by the adoption of a colonial structure in the post-colonial state.

We, however, cannot ignore that Kannabiran wrote his bookin 2004, in the fresh aftermath of 9/11, when the leftist movement in South Asia faced the paradox of recognising the existing structurally biased system or perceiving it as an opportunity for a liberated human rights framework. The recognition of an oppressive legal system was omnipresent, but reliance on it was important for lawyers representing those aggrieved by legislation imposed in a state of emergency.

Although Kannabiran has not drawn from the concept, one can critique that his bookis both a rejection and acceptance of Fanon’s ideas of decolonisation and national culture. While he argues that India’s current culture is a creation of the people’s resistance against their colonisers, he also agrees with the need for armed resistance, against the state, seeking total decolonisation and the departure of Indian state from the colonial continuity haunting it. However, he digresses with Fanon’s idea of resistance by returning to ‘the barbaric culture’ pre-colonial nations ascribed to. In fact, Kannabiran tries to convince readers to imbibe democratic values as opposed to despotism for the achievement of people’s rights in India.

It is important to note that Kannabiran places the Indian Constitution at the epicentre of his book. Therefore, every argument made against the state hinges on the document, making it a summary of the will of the people. Yet, Kannabiran’s reliance on the Constitution for human rights implementation is almost too idealistic. He relies on it as the guiding frameworks for human rights and civilian freedoms in India but ignores provisos such as the circumstances constituting derogations from rights in exceptional circumstances. Therefore, the argument that these freedoms must be implemented fully in their matter is an idealistic expectation to be kept from an oppressive state. The shift from human rights in a time of crisis is a universally recognised phenomenon borrowed from colonial legacies. It is perhaps the fact that this expectation comes from a communist advocate, who simultaneously recognises the problematic structure of formal law, is what confuses the reader.

Furthermore, Kannabiran places too much emphasis on the concept of individual liberties and the will of the people. He states that the oppressive state can only be questioned through public opposition, and its accountability can only be undertaken by the people. He recognises the supremacy of civilian will and states that ‘modern’ India is constructed by the people’s desires. This argument, however, can be critiqued in terms of Michel Foucault’s governmentality. Governmentality supposes that the state in modern times imposes a form of governance that informs people’s behaviour, how they govern themselves and how they are meant to be governed. Kannabiran’s book seems to be an implied rejection of this idea, arguing that free will continues to exist, that people recognise that violence imposed through the law is a curtailment of their freedoms and that civilians have upheld resistance against all such forms of government.

The argument, however, may seem incomplete in light of governmentality as states, through the imposition of violent power, are still able to instil a sense of fear in the population against retributive justice, thus enabling self-governance. Simultaneously, the state is able to inculcate trust within the same population on the touchstone of state necessity. In idealising free will and individual liberty, Kannabiran ignores that advocates of state necessity continue to exist outside the formal structure and many validate executive brutality against dissidents for their protection. Therefore, while his argument for civil power and supremacy in light of resistance may be true, it is simply incomplete to assume this as the only realm of civilian governance.

In conclusion, despite its limitations Kannabiran’s book provides a much-needed perspective by a lawyer regarding the impact of colonial laws legitimising state power and human rights violations. His assessment of specific legislative provisions, used by the postcolonial nation to suppress civilian dissent, provides a nuanced analysis of how colonialism has left India in turmoil. This struggle lies between balancing sovereignty and breaking the colonial chain, but also using the same legacies to curtail dissent reared against the nation. Kannabiran not only poses as an advocate of the law but also as its critic, reminding readers that while law may be oppressive and colonial in some forms, the fundamental freedoms embedded in it allow civilians to find recourse for the brutality the state arbitrarily uses against them. As a lawyer who has used the same legislation which posits arbitrary punishment against clients for their very protection, I am able to understand Kannabiran’s position. It may be unfair to rely on a liberal human rights framework, but it is perhaps the only aspiration lawyers in a postcolonial era can trust for the implementation of the rights of individuals who are oppressed for dissenting against the state.

The Wages of Impunity: Power, Justice and Human Rights

K.G. Kannabiran
Orient Longman, Limited, 2004
ISBN: 812502638X

Noor Ejaz Chaudhry is a lawyer and a teacher of human rights. She has completed her LLM from SOAS, University of London, as a Chevening Scholar in 2018.


A Socialist Feminist Manifesto for Our Times

Reviewed by Shmyla Khan

[Sheryl] Sandberg and her ilk see feminism as a handmaiden of capitalism. They want a world where the task of managing exploitation in the workplace and oppression in the social whole is shared equally by ruling-class men and women.

Cinzia Arruzza, Tithi Bhattacharya and Nancy Fraser, in “Feminism for the 99% – A Manifesto”, deliver scathing criticism of mainstream feminism, which they term as “equal opportunity feminism”. They see contemporary feminism at a crossroads, a clear choice between popular feminism and a socialist feminism that rejects patriarchy along with oppressive, racist, patriarchal structures. While many feminists have mounted a critique of the “lean-in” brand of feminism, what makes Feminism for the 99% important is that it expounds on political alternatives. The book is a call to arms as it offers valuable lessons for feminists, both young and old, to realign their politics with the larger fights against late-capitalism.

The book is in conversation with the biggest crises of our times: the economic crisis in which the contradictions of capitalism have manifested in unprecedented income inequalities around the world; an ecological crisis in which climate change poses an existential threat to the planet that we inhabit; the rise of white supremacy and fascism; and the crises around the imagination of feminism. The authors seek to advance a political project that encompasses these problems, not in the language of intersectionality that populates modern progressive movements, but through a critique of the structures that underpin these crises.

While the target of the book is the wider public, it seems to speak directly to feminists and diagnoses the limitations of mainstream feminist interventions. The “gender question” has long been de-politicised and confined to gender studies departments and neoliberal development projects. Feminist politics is often an appendage to most political manifestos, never the foundation. Most interventions seeking to “protect women” through law and policy have benefited only a few women, while working within structures, or, to paraphrase Audre Lorde, use the master’s tools, rather than dismantling the master’s house.

The book seeks to expand the horizons of feminist politics beyond the narrow focus on gender-based violence and harassment (in fact it spends remarkably little time on the subject), to all types of structural violence: from the exploitation of garment workers in the global South to low-paid immigrant women working in homes as care workers. Furthermore, the authors do not shy away from critiquing the hollow calls for sisterhood and feminist solidarity that prevails in feminist discourse, arguing that sisterhood should be a consequence of feminist struggle, but cannot be a starting point. Sisterhood often assumes the narrative of the dominant, which has historically been white, upper-class women, and obscures the different forms of oppression that women of colour face. The manifesto calls for a universal struggle where issues of class, racism and gender are connected. However, the authors are wary of conventional forms of universality in which internal differences are ignored. Taking into account critiques on both sides, the politics espoused in the book manages to strike a balance between traditional exclusionary politics and the divisiveness of pure identity politics.

The language of the book is accessible, direct and incisive. Though grounded in larger academic debate and theory, it does presume some prior knowledge of these subjects. Spanning less than 100 pages, the book has a broad audience in mind, but sometimes slips into in-speak when addressing particular forms of politics. 

The first section of the book addresses current modes of politics in eleven theses, critiquing contemporary politics and status quo structures. The second half lays out an explicit agenda in the form of a manifesto, presenting an expansive view of the crisis of capitalism from the lens of multiple contradictions: ecological, political and reproductive. The authors point out that the exploitation of capitalism needs to be understood both in terms of the surplus value extracted from labour through profit-making, as well as from the exploitation of labour that is not valued, which the authors term as “people-making”, i.e. the unpaid care work and domestic work disproportionately performed by women. The authors reframe the crisis of care work as a structural problem, connecting the women’s struggle with the larger struggle against economic exploitation.

The book starts and concludes with scenes of the feminist strikes on 8th March, calling on the readers to repoliticise International Women’s Day. “Brushing aside tacky baubles of depoliticisation–brunches, mimosas, and Hallmark cards–the strikers revived the day’s all but forgotten historical roots in working-class and socialist feminism” that was espoused in the vision of German socialist-feminists Luise Zietz and Clara Zetkin in 1911. 

The manifesto rings true in our context, and speaks directly to young feminists organising Aurat Marches across the country. The book presents a political project that eschews both neoliberalism and progressive politics dominating our mainstream. The latter holds a progressive veneer, but is still grounded in the politics of individuality and market capitalism. This is particularly true of the dominant discourse around LGBTQ rights, which, while accepting various sexual identities, tends to be framed within the narrow confines of struggles such as marriage equality. This discourse is critiqued for commodifying queer identity, and failing to question the structure of economic inequality. The book can be an uncomfortable read, as it so directly rejects so much of the language and touchstones of progressive feminism today.

Image source: Folio Books

The tone of Feminism for the 99% is urgent. The political undertaking is ambitious. For the authors, their predecessor is “The Communist Manifesto” penned by Marx and Engels. The authors’ project is to address the spectres haunting the entire planet, not just Europe, but from the hacia la huelga (‘feminist strikes’) in Spain to the feminist struggles in Chile. In 2018 in Spain, more than 5 million workers staged two-hour walkouts on International Women’s Day to demonstrate the collective power of women’s labour by paralysing tasks and activities that women do, both visible and invisible. Similarly, feminists in Chile have been an integral part of protests against state brutality, occupying universities and colleges to protest what they term as “femicide”. They also holding General Feminist Strikes on 8th March. For the book’s authors, the “spectre” is not the same as the one that concerned Marx in 1848. Rather, they are addressing the world at the time of publication in 2018.

The book is a fitting call to arms for our times, a manifesto that stands on the shoulders of socialist-feminist theory and written by women embedded in internationalist feminist struggles. In its final analysis, Feminism for the 99% offers a biting critique of the political binaries we are often confronted with, between conservative values and “progressive” liberalism, but it is also a book about hope. The hope that comes from feminists organising from below to imagine a politics that demands both “bread and roses”.

Feminism for the 99%: A Manifesto
Cinzia Arruzza, Nancy Fraser and Tithi Bhattacharya
Folio Books, Lahore
ISBN: 978-9697834105

Shmyla Khan is a feminist activist and works as a researcher on digital rights and gender.