Abstract
The defence of positive law in constitutional democracies has rested minimally in its procedural correctness. The law duly enacted through constitutionally laid down procedures by the legislating authority can deviate from the original statute only through a judicial interpretation. The contemporary moment in Indian democracy in the twenty-first century, however, is witnessing a specific use of the anti-sedition law where the majority of cases registered under this law do not conform to the definition of the offence contained either in the text of the statute or its judicial interpretation. This work focuses on the working of a law in the domain of executive orders where deviating usages are preeminent. The problematic of this work is centred on the law against sedition in India where the focus is on the language of law as a mode of communication through which meanings are transmitted. The transformation brought about in law in the process of its implementation which deviates from the original text or its judicial interpretation is ordinarily dismissed as either a misreading of law or its misuse in the hands of the law enforcing officials, that is, the police persons. In this work, an attempt is made to counter the framework of the misreading/misuse of law which is often advanced to encircle the deviating usages of law as aberrations to defend the text of the law and to deny the power of mutability that law attains in its quotidian life. Through a study of the law against sedition, this work will show that this encircling of deviations and their abandonment by the state is selective and certain deviating usages find validation in the executive discourse of the state.
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Notes
- 1.
For a detailed account of the various approaches to legal interpretation, see, Fallon (2015).
- 2.
Austin in his speech-act theory refers to utterances that go beyond the intended meaning of the author, as parasitic discourse. Derrida critiques Austin for using parasitic discourse as dysfunction of language. Austin’s student Searle responded to Derrida’s criticism saying Austin meant that parasitic discourse signifies a relation of logical dependence and not dysfunction of language, see, Searle (1997).
- 3.
Benjamin while writing about the relationship between law and violence (the German word Gewalt which signifies force, power, domination, authority and also violence) discusses two kinds of violence, that is, law-making and law-preserving. The former is the violence of power making, establishing new laws using violence as a means towards ‘natural ends’ while the latter is the violence embedded in state institutions where violence as a means is used towards ‘legal ends’ for the purpose of preservation of legally existing state. Benjamin, however, argues that the distinction between the two forms of violence gets suspended in the order of the modern state and police as the institution of modern state becomes the site where the two kinds of violence stand conflated.
- 4.
The speech-act theory developed by J. L. Austin is helpful in an analysis of the ambit of criminality of speech-related offences. It is premised upon the assertion that speech are also actions in narrow senses or wide, hence the distinction between speech and action is false. The speech crime jurisprudence rides on this supposition that speech is capable of producing harmful action hence should be proscribed. Austin explains speech acts as having two kinds of effects—illocutionary and perlocutionary. An illocutionary act is the performance of an act in saying something rather than performance of an act of saying something (Austin 1969, p. 99). A perlocutionary act is that which is produced as a consequence of saying something—the actual effect of the speech act whether intended or not by the utterer (Austin 1969: 101). The basic difference between the two is that in case of an illocutionary act the speech itself constitutes an action while in case of perlocutionary act, the act is the consequence of the speech, in other words, speech causes action.
- 5.
In Derrida’s own words, ‘Every sign, linguistic or nonlinguistic, spoken or written (in the usual sense of this opposition), as a small or large unity, can be cited, put between quotation marks; thereby it can break with every given context, and engender infinitely new contexts in an absolutely nonsaturable fashion. This does not suppose that the mark is valid outside its context, but on the contrary that there are only contexts without any center of absolute anchoring’, see Derrida (1991: 97).
- 6.
The notion of ‘Subaltern legality’ is adopted from the work of Santos and Rodriguez-Garavito who argue that there is a growing resistance to the hegemonic account of the top-down process of globalization in context of global legal transformations, by forms of alternate legal frameworks being created by populations harmed by globalization. They adopt what they call a ‘subaltern cosmopolitan legality’ approach to explain the plurality of resistance to global legal norms, emerging from the ground; an approach which reimagines legal institutions from below, see, Santos and Rodríguez-Garavito (2005).
- 7.
In one of the illustrations, she discusses a case brought before German Constitutional Court in 2003 in which a woman German school teacher of Afgani origin was disqualified from the public position she held because she requested to teach in class with her scarf worn around conducting her duties as a civil servant of a secular state. When the woman moved court, the court referred the case to the legislature, however, in doing so, the court made a rather pertinent political move. Before referring the case to the legislature, the court stated that the fundamental rights of citizens in Germany allowed equal access to public offices and freedom of conscience. On both accounts, the disqualification of the woman from the school does not seem justified. The court said, ‘…legislature is nevertheless free to create the legal basis by determining anew within the framework set by the constitution the extent of religious articles to be permitted in the schools… In this process, it must take into consideration the freedom of conscience of the teacher as well as of the students involved, and also the right to educate their children on the part of parents as well as the obligation of the state to retain neutrality in matters of worldview and religion’ (p. 199). Benhabib says that in doing this, the court may have failed to give a constitutional defence of pluralism but it did carve out a space to reinterpret the clash between citizenship rights and cultural identity of minorities. In a similar fashion, the mobilization to recognize the second and third generation children of immigrants had led to a new German citizenship law in January 2000. The urge of the court to the legislature to reflect upon the changing realities of the population has led to a change in the citizenship law, see, Benhabib (2004: 198–211).
- 8.
The juxtaposition of Anderson’s and Gelner’s work on nation helps enumerate the above argument. Anderson’s conception of nation as an imagined community of people where the members never meet or hear of each other yet ‘in the minds of each lives the image of their communion’ (Anderson 1983, p. 6), refers to how the process of ‘imagining’ creates a community of people with a feeling of belongingness. Ernest Gellner, writing before Anderson, differed on how the nation as a community was ‘created’. Challenging the common social science thinking which says that nations precede the creation of states he argued that nations were created through a uniform process of cultural production of individuals by preexisting modern states. States were not a result of the demands put forth by specific nations, in fact they created nations through a feeling of nationalism. Gellner wrote ‘nationalism… invents nations where they do not exist’ (Anderson 1983, p. 7).
- 9.
Details about these incidents were gathered through filed work in Haryana in the months of August and September 2014 through conversations with locals as well as interviews with some of the accused. The Dalit activists who have questioned the caste hierarchy and the supremacy of the Jat community have suffered legal repression under all political regimes. Each political party has ensured electoral victory with the support of the Jat community. It was only in 2014 that for the first time in nearly two decades that Haryana was given a non-Jat chief minister in the BJP ruled state government. Though the pressure mounted by the community on political authorities is still significant. For details on the case, see, Singh (2018: 236–242).
- 10.
It came through in the interaction with the villagers at the secretariat that the then Union minister Kumari Shailja, had met the District Commissioner after the incident and reprimanded him for making it a case of sedition.
- 11.
A group of villagers sitting on protest at the Secretariat had spoken to the author about the discriminatory use of law in the state, one among them had made the quote in Hindi. Conversations with villagers of Bhagana at Hisar Secretariat on 22 August 2014, at Hisar, Haryana, India.
- 12.
O. M. Fiss defines and critiques legal nihilism as emerging from the proposition that for any legal text including the constitution, there can be any number of possible meanings and interpretation is a selection of one of the many meanings, see, Fiss (1982).
- 13.
Goodrich says this to oppose the reductive idea of nihilism which O.M. Fiss defines and critiques. Goodrich’s idea of legal nihilism is that it ‘speaks to the possibility of a public language of legal modernity and of open debate as to the values contained in and resulting from the practice of the law’ see, Goodrich (1986).
- 14.
Ujjwal Kumar Singh has argued that state crimes (or political offences) construct an anachronism between the state and the rebel. The moment the rebel is successful, he/she escapes legal punishment as the state has already been subverted. This allows the state to justify stronger legal measures against political offences, see, Singh 2008. Singh’s framework can be used to understand how the usurpation of victimhood allows greater powers to state to act as an aggressor.
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Singh, A. (2020). Law and Constitutional Democracy: Meanings, Iterations and Consequences. In: Roy, A., Becker, M. (eds) Dimensions of Constitutional Democracy. Springer, Singapore. https://doi.org/10.1007/978-981-15-3899-5_8
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