MUHAMMAD HAIDER IMTIAZ*
‘Whatever the achievements of Western bourgeois civilization, these are now exhausted. We are on the threshold of reconstructing a new civilization, a more universal, a more humane, civilization. And that cannot be done without defeating and destroying imperialism on all fronts. On the legal front, we have to re-think law and its future rather than simply talk in terms of re-making it. I do not know how, but I do know how not. We cannot continue to accept the value-system underlying the Anglo-American law as unproblematic. The very premises of law need to be interrogated. We cannot continue accepting the Western civilization’s claim to universality. Its universalization owes much to the argument of force rather than the force of argument. We have to rediscover other civilizations and weave together a new tapestry borrowing from different cultures and peoples.’
- Issa G. Shivji, “Law's Empire and Empire's Lawlessness: Beyond the Anglo-American Law”, (2003)
I. INTRODUCTION
‘Colonialism is a practice of domination, which involves the subjugation of one people to another.’ (Kohn) The process of colonization involves subjugation, domination and exploitation of a people, which radically alters the materialities as well as the idealities of its victims.
Colonial domination has been actively imposed upon its victims by its sponsors through violence and coercion over the centuries. Thus, the sponsors, the oppressors, are the active agents of this process, while the victims, the oppressed, are its passive objects. Oppression is masked under the grand narrative of necessity and inevitability; a facade that prevents the victim from recognizing the ultimate ‘truth’ of his precariously imposed relationship with the oppressor. It is only when the oppressed, the passive object, recognizes this ‘truth’, rejects the oppressor’s grand narratives of the necessity and the inevitability of oppression, shrugs off his passivity and lays claim to agency which had hitherto been the exclusive right of the oppressor, that he places himself in opposition and resistance to the process of colonization. Such a ‘break’ in the process has the potential to eventually lead to an opposite process: that of ‘decolonization’; a process by which the oppressed liberates himself from domination and subjugation. It is this break, the beginning of an opposite process of resistance and opposition to oppression, which this paper will attempt to explore.
In ‘The Wretched of the Earth’, Frantz Fanon made the following observation about the expansive and all-encompassing nature of colonialism’s operations: ‘colonialism is not simply content to impose its rule upon the present and the future of a dominated country. Colonialism is not satisfied merely with holding a people in its grip and emptying the native’s brain of all form and content. By a kind of perverse logic, it turns to the past of the oppressed people, and distorts it, disfigures and destroys it.’ (Fanon) The essence of Fanon’s argument is this: colonialism does not restrict its operations to any specific set of material and non material aspects of the natives’ lives. Rather it intrudes into each and every sphere and aspect of the natives’ individual and collective existence, including their culture, politics, economics, history, religion, law and ethics, subjugating, dominating and distorting it by imposing the oppressor’s version in all these spheres. Through this process, the oppressor appropriates control over the very existence of the oppressed, creating a relationship of dependency between the oppressed and the oppressor.
The process involves, firstly, the silencing of the natives’ voices in each sphere through coercion and violent manipulation by the colonizer, and secondly, the appropriation of the exclusive right of ‘authorship’ in each sphere by the colonizer, usually justified on the basis of a claim to a superior civilization. It was in this way that the European colonizers were able to impose upon the vast majority of the peoples around the world the great narratives of modernity; narratives which were irrelevant to the experiences of those on whom they were imposed. In the process, local narratives of culture, politics, economics, history, religion, law and ethics were silenced, and in their place emerged certain dominant theoretical frameworks in almost every sphere of human existence, which continue to persist to date. Although the twentieth century saw the end of European colonizers’ physical occupation of the natives’ lands, the dominant theoretical frameworks were inherited and adopted by the local elites. Thus, the effects of colonialism are visible in almost every sphere of human existence today.
Subsequently, any meaningful attempt towards ‘decolonization’ must endeavor to counter the effects of colonialism in each and every sphere of human existence. Each and every sphere must be turned into a battle field not only of ideas, but of praxis. The task of decolonization, thus, is indeed a daunting one. While significant progress in terms of both theory and praxis has been made over the past one century, there are areas where the efforts are still at a theoretical level; foremost among such areas is the area of law. The purpose of this paper is to explore the possibilities of the decolonization of law in a concrete, practical context. In doing so, an attempt will be made to explore the extent to which the dominant statist rational-bureaucratic formal legality, imposed by European colonialism and perpetuated by the local elites, is irrelevant to the experiences of those on whom it has been imposed, and will look at the possibility of challenging/contesting it, or certain of its aspects, by focusing on the other/alternative experiences, perspectives and imaginations of law and justice emerging from the peoples’ movements led by the communities of the suffering and resisting masses, which are involved in emancipatory struggles against modern states. The Naxalite movement currently raging across India’s Eastern and Central states of West Bengal, Bihar, Jharkhand, Orissa, Chhattisgarh and Andhra Pradesh will serve as a case study.
II. DECOLONIZATION OF LAW: A THEORETICAL EXAMINATION OF THE CONCEPT
Jayan Nayar, in ‘Peoples’ Law: Decolonizing Legal Imagination’, has carried out a sharp critique of the dominant legal theory which has elevated the Weberian statist rational-bureaucratic formal legality to the position of a universal ideal. He contends that the current universal ideal of ‘Law’ , is actually an imposition, and contrary to the mainstream rhetoric, is exclusive, for it does not cater for the experiences of the vast majority of the world’s population. ‘The universal Law, Law as an idea, that Law that is the proclaimed universal of human social relations, this Law has not been one for the social majorities.’(Nayar) The universal Law is a deception, which in its rhetoric attempts to mask the material differences which exist between people living at different levels of the world order by claiming itself to be the ‘universal of human social relations’. In its operation, the universal Law does differentiate between people on the basis of their ‘material differences’ (Nayar).
A clear manifestation of the ‘material differences’ between the people of the world is the nature of the ‘world order’ that persists today. At the top of the world order is the ‘First World’ which, for Nayar, is ‘the virtual world of ‘anywhere people’. (Nayar) It consists of the rich and the resourceful, ‘models’ of humanity, the very epitomization of ‘success’ within our contemporary ‘civilisational’ adventure.’ Below the First World is the ‘Second World’ which is ‘the located world of ‘somewhere people’. (Nayar) Its landscape is one of labor and service. At the bottom of this order is the ‘Third World’ ‘the world of ‘nowhere people’. (Nayar) It lies in the underground of ‘civilized society’, its inhabitants the disposables of the ordering of civilization. ‘The inhabitants of the Third World are nowhere welcome; they serve best by disappearance, by silence. The Third World is the world of the unworthy, the unfit, the failed, the faceless, nameless, voiceless wretches of the ‘human family’.’ (Nayar)
‘The three Worlds, so described, conform not to any convenient, conventional ‘herding’ of populations into national territorial spaces. Instead, the three Worlds of the ‘global order’ are transnational realities. As such, their constituents fall together not according to national criteria, but according to the materialities of livelihoods and, thereby, the imaginations of futures.’ (Nayar) Although the Law fails to recognize these differences in its rhetoric of universality, in actual operation, it ‘plays essentially different roles with respect to the different constituencies of world order’. (Nayar) With regards to the First World, the Law ‘facilitates and enables the ‘globalizing elites’, with regards to the Second World, it ‘regulates and disciplines the ‘servants’ of the transnational projects’, and with regards to the Third World, it ‘excludes and imposes upon the dispossessed’. (Nayar) Herein lies the ultimate deception of Law, which Nayar calls ‘the underlying untruth of Law’: that it speaks ‘the language of abstractions, within a false location’ and therefore ‘enables the disguised construction of a colonizing regime of administration - the State system.’ (Nayar) Therefore, within the modern State system, the three different world orders continue to exist, albeit in different spheres, under a false notion of ‘co-existence’ which is created on the basis of some overarching illusionary identity such as religion, nationhood etc. Within the territorial boundaries of every modern State, the First World continues to make and benefit from the Law, which is imposed on the Second and the Third Worlds which continue to suffer. The First World continues to oppress, and the Second and the Third Worlds continues to be the oppressed. The Law, the law of the state, serves as the primary tool for the perpetuation of this oppression.
Decolonization starts the moment when the oppressed re-claims for themselves their right of agency, breaks their silence and begins to articulate their own visions of their future based on their own real experience. Any move towards a ‘decolonization of law’ will thus, in the words of Nayar, first ‘seek to reclaim the right of peoples to speak the words and act the actions of law from a position of opposition to the violence’ of the universal Law. (Nayar) A peoples’ perspective on law, in other words, would recognize the reality of conflict in visions of ‘world order’ and would position itself in opposition to the laws of and for oppression. ‘From this the claim to decolonization follows: If it is the desire of the ‘power(ful)’ to take for itself the ‘idea’ of law as it is conventionally understood, if it is the theft of ‘power(ful)’ to appropriate authorship of law for its own sake and negate the right of authorship inherent in the people, if it is the confidence of ‘power’ to do so in ways which blatantly disregards the existence of the people as primary subjects of that law and not merely inconvenient objects to be subjugated, then a ‘peoples’ law perspective would say ‘enough – for this is not our law’.’ (Nayar) It is at this moment that we will be able to mark ‘the end of the abstracted universalisms of Law’ and to open up ‘real possibilities for alternative imaginings of law.’ (Nayar) It is from here that the oppressed people will carve out the space for their own peoples’ law in opposition to the domination of the Law of the modern state.
Nayar lays down the following principles as describing the foundations of a decolonized peoples’ law:
• Judgment: the right/power of peoples to judge the ‘realities’ that are inflicted upon them and to name as ‘violation’ that which is otherwise proclaimed as ‘normalcy’ by the dominant power.
• Authorship: the right/power of peoples to author/create ‘law’ and to define the structures and nature of social relationship conducive to their security and welfare.
• Control: the right/power of peoples to control (and not merely ‘participate’ in) the processes of decision-making and judgment in relation to the matters which affect the daily life-conditions of their communities.
• Action: the right/power of peoples to effect the ‘implementation’ of their alternative visions of social relationships in ways which reinforce and celebrate the diversity of humanity.
Viewed differently, these may also be regarded as the articulation of a re-conceptualized ‘decolonized sovereignty’ on which will rest the structure of peoples’ law (Nayar). An important feature of this sovereignty would be the fact that it would derive its legitimacy ‘internally’, and not on the basis of some external considerations or approvals. As Nayar puts it, the legitimacy of peoples’ law, and the decolonized sovereignty which lies at its foundations, would be ‘bound, not by some abstract construction of a priori truths about social organizational forms and processes.’ Rather, it would be based on ‘the substantive claims of (the relevant) democratization movement which derives solidarities on the basis of the relevance its politics has to its constituencies.’ (Nayar)
Nayar has focused primarily on practical aspects of the decolonization project, as is evident from his emphasis on ‘judgment’, ‘authorship’, ‘control’ and ‘action’. Authors like Walter D. Mignolo and Arturo Escobar have highlighted the need for a prior (or at least a simultaneous) effort towards decolonization at the ‘epistemological’ level. ‘Decolonization of knowledge’ is necessary if the dream of liberation is ever to be realized. ‘The practice of liberation and de-colonization is initiated with the recognition, in first place, of the colonization of knowledge… (and) of the use of imperial knowledge to repress colonized subjectivities’ (Mignolo, and Escobar).
Mignolo and Escobar have identified the role of the ‘politics of knowledge’ which governs the process of knowledge generation. Such a politics determines which source of knowledge will attain the dominating status over all other forms of knowledge. Western European knowledge has been a product of theo-politics and ego-politics, theo-politics representing the authority of the Church over the production and dissemination of knowledge, while ego-politics representing the knowledge produced by the secular thinkers after the dawn of modernity. According to Mignolo and Escobar, over the past few centuries Western European theo-politics and ego-politics has dominated the process of knowledge production and dissemination around the world by silencing all other sources. ‘A specific group of individuals, the majority of whom were, as we know, white, Christian, European men, put into place the basic principles of knowledge, which were complicit with the variegated concept of totality’ (Mignolo, and Escobar). The dominance of the modern Weberian statist rational-bureaucratic formal legality provides an ample example of how a particular type of legal narrative was imposed on peoples across the world and all alternative imaginings of legality were barred from turning into viable realities. To contribute to a world in which different legalities can co-exist, law ‘must be decolonized and refashioned through the ‘geo’ and ‘bio-politics’ of knowledge’ (Mignolo, and Escobar). The need is to move towards a ‘pluri-versality’, a universal project in which peoples will derive their knowledge from their own “spaces of experience” (which they call ‘geo-politics’) and the “horizons of expectations” (body-politics) (Mignolo, and Escobar). ‘The creative work on knowledge and subjectivity comes from the … institutionally and economically disenfranchised (that is to say, intellectual work not at the service of the corporation or the state but geared toward the empowerment of the disenfranchised, the des-inherited)’ (Mignolo, and Escobar); therefore, ‘the grammar of de-coloniality … has to work from bottom up’ (Mignolo, and Escobar). It is important to note that Mignolo and Escobar are cautious enough to point out the dangers of misunderstanding their approach as the creation of just another universalism for ‘to make such a move would be to use the same logic and pretend that a different universalism will be better than the one that is today hegemonic and dominant’ (Mignolo and Escobar).
III. DECOLONIZATION OF LAW IN A CONCRETE CONTEXT: THE CASE OF THE NAXALITE MOVEMENT IN INDIA
In May 1967, a minor clash between a police force and a group of armed peasants took place in Naxalbari, in an obscure corner of West Bengal, India. It unleashed a force of events which escalated over the years into a political movement that derived its name from that area, and brought about far-reaching changes in India's socio-cultural scene. ‘Naxalbari was a water-shed in the recent history of India… For the first time in post-independence India, a movement asserted the demands of the poor and the landless … Today, it continues to arouse them to protest and take up arms against their oppressors, and even take on the Indian state whenever it sends its police to protect these interests, whether in the villages of Bihar, or the tribal hamlets of Andhra Pradesh… By asserting the need of armed retaliation and offensive against the state, … by challenging the state's monopoly of violence, and asserting the right of its opponents to resort to the same violence, the Naxalite movement set the tone for political discourse between the Indian state and the discontented segments of its population in large parts of the country during the next decades…’ (Banerjee).
‘Today … one cannot deny that even after three decades of its tortuous and self-divisive (and often self-destructive) odyssey, the movement that began in Naxalbari (known today as the 'Naxalite' movement) still remains a force to reckon with. The police and bureaucrats of at least seven states (comprising a large chunk of the Indian land mass, and accounting for nearly half of the population) meet at regular intervals to devise ways and means to check what they describe as the 'Naxalite-menace' in areas which are contiguous with the borders of their respective states’(Banerjee). The Prime Minister of India has labeled the movement as India’s ‘gravest internal security threat’ (The Indian Express).
Over the period, ‘the old rural bases of the 1960-70 period have eroded… New bases have developed recently among the tribal poor … where the People’s War Group (PWG) and Maoist Communist Centre (MCC) are active. The spread of PWG activities in Orissa, Chhattisgarh and Maharashtra is also of recent origins - during the last 10 or 15 years - and is significantly confined to the poor tribal people’ (Banerjee). In different areas where the Naxalites operate, they have created ‘liberated zones’ where any interference from the state is violently resisted (Dasgupta). The Naxalite movement’s activities have historically included occupation of state forest lands (the traditional habitats of indigenous tribes which had been appropriated by the state under forestry laws), increase in wages for farm laborers, retaliations in response to feudal atrocities, the forcible occupation of the surplus and benami land of landlords, and establishment of peoples’ courts. Lately, they have been involved in disrupting state attempts to execute contracts/MoUs with prominent mining corporations like Vedanta under which large tracts of traditional habitats of indigenous tribes have been allocated to these corporations for mining purposes. The primary focus has been on disrupting the activities of these powerful mining corporations which have emerged as a threat to the very existence of tribal communities spread across Eastern and Central India. Naxalite resistance to corporate exploitation has invited bitter retaliation from the state, which has recently launched the ‘Operation Green Hunt’, an ongoing campaign involving thousands of paramilitary and police soldiers. ‘Over the past five years or so, the governments of Chhattisgarh, Jharkhand, Orissa and West Bengal have signed hundreds of MoUs with corporate houses, worth several billion dollars, all of them secret, for steel plants, sponge-iron factories, power plants, aluminium refineries, dams and mines. In order for the MoUs to translate into real money, tribal people must be moved. Therefore, this war’ (Roy). Police and paramilitary camps have been set up and the poor have been detained, tortured, jailed on false charges, their houses and fields are being destroyed. There have been hundreds of arrests of the tribal ‘terrorists’ under the ‘TADA’ . Many who have fled into the forests and have taken up arms to defend their traditional lands are being hunted down and killed under the pretext of ‘curbing Naxal terror’ and maintenance of ‘law and order’.
From the perspective of the framework of decolonization presented by Nayar, the struggle between the Naxalites and the Indian state represents the clash of the First World’s interests with those of the Third World which has materialized into a situation where elements of Third World have revolted against the domination and oppression of the First World. In the process, the landless peasants and tribals of India have recognized the deceptive nature of the state law which has served as a convenient tool for oppression against them. Historically, they have seen that while the state has provided effective protection to the landlords’ title over the land tilled by the landless peasants, land reform legislations aimed at empowering the poor have continuously suffered from poor implementation. Forestry laws have excluded the tribals from their traditional habitats and granted control over these forests to corrupt state officials The recent MoUs throw ample light on how the ‘authorship’ of law’ has been appropriated by the rich and the powerful in active connivance with the state. The state is actively pursuing the implementation of these MoUs in utter disregard of the disadvantages to the poor tribals. When they look at the way the state law has readily reacted against the pro-poor organized movements by criminalizing them and cracking down on them (mass arrests, torture, imprisonment, killing of the rebel peasants on the pretext of the maintenance of ‘law and order’), the deceptive and discriminatory character of the state law becomes evident even to the most undiscerning of the eyes. Today, all illusions as to the so called benevolent nature of the ‘Law’ have been de-mystified, and the poor, the victim of oppression, has been forced to declare, in Nayar’s words: ‘enough – for this is not our law’. The Naxalite movement, thus, is doing exactly what it needs to be doing in order to secure the interest of the poor: challenging the ‘rule of Law’. The movement represents ‘the end of the abstracted universalisms of Law’ in large parts of Eastern and Central India today. By taking up arms against the State, by challenging the State’s traditional monopoly over the use of violence, the normally silent victims of domination and oppression have broken their silence and have attempted to re-claim for themselves their right of agency and authorship, for the protection of their own interests. Thus there is a clear ‘break’, signs of a movement towards decolonization.
In order to gauge the extent to which the Naxalites have been able to move towards a ‘decolonized’ law, I shall apply Nayar’s criteria of ‘judgment’, ‘authorship’, ‘control’ and ‘action’ to the three important aspects of the Naxalite movement today: challenge to the concept of state sovereignty through the creation of ‘liberated zones’, redistribution of property rights, and the establishment of Peoples’ Courts.
A. CREATION OF THE LIBERATED ZONES
The Naxalites’ claim to the right to employ violence against the Indian state in order to create, defend and maintain ‘liberated zones’ poses an important challenge to the sovereignty of the Indian state. ‘For the past two centuries or so, the territorially consolidated, centralized, sovereign state has been the dominant paradigm in western political thought and western mainstream political science. It constitutes the ideal of the well-ordered, modern political community. It is considered to be the model which any political community that strives toward modernity is expected to embrace’ (Axtmann). British colonial expansion in India was followed by the establishment of the colonial state of British India which imported with it all the basic characteristics of the modern European state of the time. India’s inhabitants had never witnessed the rule of such an over arching central authority before. A central feature of the modern state was its ‘sovereignty’, which primarily entailed that the state had the monopoly over the process of legislation and the use of violence for the ‘enforcement’ of its law within its territorial limits. All other forms of violence were criminalized, and penalties were imposed upon those who indulged in non-state violence, or challenged the aforementioned legal monopoly of the state. ‘State sovereignty’ also entailed that the state had the right over the natural resources within its territorial limits, especially those which lie beneath the surface of the earth. Although the right to private property was recognized, the state by exercising its ‘eminent domain’, could usurp private property under the pretext of ‘public benefit’. A further feature of ‘state sovereignty’ was the right of the state to impose taxes and collect revenues within its territorial limits. When India gained its so called ‘independence’ from the British, the aforementioned basic features of the colonial state remained intact, with a few substantive modifications
By creating the ‘liberated zones’, and by resisting state and corporate intervention, the Naxalites have disrupted the ability of the Indian state to maintain its sovereignty over such areas which had been originally imposed upon the people of these areas by the British. In doing so, they have attempted to create a parallel ‘decolonized sovereignty’ which derives its legitimacy from its suitability to the needs of the local people for whom the Indian state has historically played no role other than aggravating their sufferings and miseries. ‘British colonialism, through its land revenue policy and elaborate exploitative bureaucratic structure made land alienable on a large scale, especially in tribal areas. The upper caste elites who were dominating each sphere of British administration consolidated their landowning position through the state machinery, ‘de-peasantising’ the tribals and lower caste peasants. The tribals who were cultivating land, cleaning forest within their customary norms and practices without any experience of landlessness, were compelled to work as laborers in their own land and subjected to various kinds of oppression and exploitation, including denial of access to their traditional forest lands’ (Mohanty). The legacy of exploitation and deprivation was further continued by the Indian state. ‘The Indian Constitution, the moral underpinning of Indian democracy, was adopted by Parliament in 1950. It was a tragic day for tribal people. The Constitution ratified colonial policy and made the state the ‘custodian’ of tribal homelands. Overnight, it turned the entire tribal population into squatters on their own land. It denied them their traditional rights to forest produce… in exchange for the right to vote, it snatched away their right to livelihood and dignity’ (Roy). Recently, by exercising its ‘sovereignty’ over tribal lands, the state has granted large tracts of the tribals’ habitats to the mining corporations, utterly disregarding the destructive implications for the local inhabitants and the threat posed to their traditional ways of life. The overthrow of state sovereignty by the Naxalites in the ‘liberated zones’, therefore, is a step necessitated by such circumstances, and represents the ‘authorship’ of a new legality based on a ‘judgment’ of their reality by the tribal communities, and entails an explicit rejection of the dominant statist legality’s rhetoric in which it portrays the modern sovereign state as the ultimate model for the organization of a political society.
B. REDEFINITION AND REDISTRIBUTION OF PROPERTY RIGHTS
Modern property rights, as they had emerged in Europe, entailed an exclusive right of the individual to enjoy his/her property. Such a concept of property was originally alien to the majority of the inhabitants of India before the arrival of the British. For example, in Punjab, ‘exclusive individual proprietary rights in land did not exist in pre- British [era]. Sources of livelihood in the rural areas were not owned individually but by definite lineage groups; consequently the important economic relations were between groups and not individuals’ (Nazir). ‘There were joint estates, where all the shareholders had a common right and interest in the whole of the estate, without any separate title to the lands forming part of the estate’ (Nazir). The introduction of modern property rights in India by the British was based on the need for revenue extraction. The British were content with granting exclusive property rights to the local elites over vast portions of land so that they could be cultivated and revenue be generated from those lands (Mukherji). During the revenue ‘settlements’, rural estates were divided into territorial units (such as ‘mauzas’), and titles to land were formally recorded in the ‘records of rights’. ‘The status of cultivators everywhere was clearly defined in terms of the categories of ‘owner’ and ‘tenant’ and liability for the payment of land tax distinguished from the liability for the payment of rent… proprietary rights were vested clearly and unequivocally in individuals’ (Nazir). Landownership was thus reverted from the lineage and community groups to individuals.
For the native tribals and peasants in the rural areas of Central and Eastern India, the property rights which the new revenue system secured were clearly an imposition, for such rights were not a recognized and practiced phenomenon. A large number of tribal and rural peasants were thus alienated from the lands which they had cultivated for centuries. Historically, rural estates in India had been jointly owned by various multiple lineage and community groups. In many cases, the dominant lineage in a village employed ‘sub-ordinate’ lineages to cultivate their land, the produce of which was jointly shared. However, during the process of revenue settlement under the British, ‘if land had been held for a long time by one lineage group, it was usually treated as a mark of proprietorship. Such lineage group was recorded as ‘proprietors’ and all others as ‘tenants’ (Nazir). Thus, with a single stroke of the settlement officers’ pen, the ‘subordinate’ lineage groups which usually owed their ‘subordinate’ social status to their lower castes, were reduced to the position of ‘tenants’ on the land which they had earlier jointly owned with the ‘proprietors’ as part of a joint estate.
The alienation of a vast majority of tribal and rural peasants from their lands, accompanied by the concentration of exclusive proprietary rights in a few hands, led to huge disparities in landownership in many parts of India. Today, even ‘though the members of scheduled castes and tribes mostly reside in the countryside and derive their livelihood by working on land, they are the most disadvantaged in respect to land. The incidence of landlessness is more pronounced among these groups, the bulk of whom are agricultural laborers having minuscule holdings or are sharecroppers or other types of insecure tenants. A majority of scheduled castes (77 per cent) and scheduled tribes (90 per cent) are landless, without any productive assets and sustainable employment opportunities’ (Mohanty).
The fact that, after its ‘independence,’ the Indian state continued with the existing land distribution shows that the colonial logic of extraction has continued to persist. Although land reforms were initiated in many states to undo historic injustices, the non implementation of land reform legislations, and the state’s readiness, on the other hand, to provide protection to the ‘legal’ rights of the landowners in the wake of numerous peasant movements and rebellions calling for a redistribution of property rights over land, has led to massive disillusionment among the rural and tribal peasants in many parts of India. ‘As pointed out by a number of studies, the inherent loopholes and ambiguities in the legislative measures, slow proceedings at all levels of bureaucracy, lack of updated land records, the ignorance and illiteracy of the scheduled population and the escaping attitude of the large landowners are the major reasons that hinder fair distribution of land by allowing the bulk of landowners to avoid expropriation. Even a slow process of passing of the land to the scheduled castes and tribes … becomes intolerable and non-acceptable to the dominant groups. They resist the allotment of land by committing atrocities on members of scheduled castes and tribes through well organized groups, like the Ranvir Sena, Brahmarsi Sena, Bhumi Sena and Lorik Sena. Even after the land is allotted to the poor, ensuring physical possession of it becomes a major problem, for the landlords often thwart the efforts of the poor by involving them in litigation or used threats or other coercive methods in preventing them from cultivating the land allotted to them. Sometimes small and unorganized groups, with the tacit approbation of the powerful upper-caste landowners forcibly grab the allotted land or throw the members of scheduled castes and tribes out of their encroached waste-land or evict them from the leased lands through atrocities ranging from setting fire to their huts to brutal murders, mostly in league with the police and the administration’ (Mohanty).
The Naxalites’ campaign to appropriate and re-distribute among the poor the surplus and benami lands of the upper caste landlords represents a radical attempt to undo the historic injustices of the colonial era. The Naxalites, who mostly consist of low caste rural peasants and tribals, have not only refused to acknowledge the existing property rights of the upper caste landowners, but also embarked upon the task of ‘authoring’ their alternate ‘laws’ under which new ceiling limits have been set, allowing for the appropriation of surplus landholding (i.e. landholdings above and beyond the ceiling limits) for redistribution among the landless peasants and tribals (Balagopal). The ‘implementation’ of these new laws in the liberated zones not only serves the interests of the social majorities of the area, but also rejects the colonial logic of extraction as the basis of property rights, thus representing a genuine endeavor towards a democratized and decolonized property law based on the experience and ‘judgment’ of the local communities.
C. ESTABLISHMENT OF PEOPLES’ COURTS
A major achievement of the Naxalites is the establishment of the Peoples’ Courts. ‘Any political movement working in villages is forced to decide upon a variety of much less clear and much more subtle problems. For the masses at large, an efficient and just adjudicative mechanism is a necessity, and what they have had till now is a variety of informal local courts-landlords' panchayats, caste panchayats, adjudication by new-found political leaders, and of course the police and courts introduced by the British. None of them is particularly efficient or just, and hence the constant search for a satisfactory alternative’ (Balagopal).
The rejection of the local panchayats and the colonial era state court, and establishment of the Peoples’ Courts in their place, is the most important example of the situation where the poor have claimed and appropriated their right of ‘judgment’, ‘authorship’, ‘control’ and ‘action’. The impact of the Peoples’ Courts is phenomenal in terms of the way they have empowered the poor by allowing them to adjudicate upon their lives without interference of the corrupt state officials or the local landlord. As a consequence, ‘there have been a large number of cases where disputes have been resolved and justice rendered in a fair and humane way’ (Balagopal). The Peoples’ Courts have undermined the traditional political authority of the landlords and state officials over the landless peasants. ‘The arbitration of rural problems by dalit youth with a working class political outlook … is a threat to property and power … [it] deprives political bosses of an important source of power and influence. Most political leaders at the local level maintain their hold on the villages by appropriating to themselves the sole authority of arbitration, and the loss of this authority is a loss of political power … for the policemen the activity of the People's Courts means that no disputes come to them, and that deprives them too of power, influence, and opportunity for graft … it constitutes an appropriation of the substance and form of landlords' power, and its notion of right and wrong is the reverse of the landlords' notion, at least as far as property and caste are concerned…’ (Balagopal).
‘The very fact that a large number of people do bring their problems to the Naxalites' People's Court is proof of the efficacy and integrity of the arbitrators, or at least the people's faith in them… the problems that are brought before People's Courts range all the way from family disputes to property disputes between kinsmen; from problems of caste and kinship to criminal offences such as theft, assault and murder…’ (Balagopal). Instances have been cited where member of the Naxalite cadre have refused to defend themselves or to be defended by state lawyers in front of the state courts and to participate in the court proceedings, demanding that their cases be presented before the Peoples’ Courts (M.R.).
D. EPISTEMOLOGICAL DECOLONIZATION OF THE LAW
At the epistemological level, the Naxalites have made significant breakthroughs. They have refused to accept the rhetoric of the dominant statist legality and introduced an alternate legality which is derived from the experience of the local communities and stands in opposition to the legality which has been imposed upon these communities by the modern state in a top-down fashion over the past few centuries. However, drawing on the argument of Mignolo and Escobar, it is my contention that at a more fundamental level, their attempts towards a decolonized law have been marred by the fact that the epistemology of their theory and praxis is not purely based on the ‘body-politic’ and ‘geo-politic’ of the spaces in which they are operating. The Naxalite Movement is a left wing movement which draws its inspiration from Maoism. By adopting a particular ideology, the Naxalites have replaced the universalism of the Weberianism by another type of universalism i.e. Maoism. Maoism was the product of very specific experiences of a certain people who had arrived at it through their own body and geo politics. To impose this product of an alien experience goes against the very idea of ‘pluri-versality’ which for Mignolo and Escobar is essential for any genuine effort towards a decolonized epistemology. Any further possibility of a de-colonial law-doing in the future is dependent upon whether the Naxalites modify their theory and re-formulate on the basis of the geo-politics and the body-politics of their locality or not, otherwise they will end up creating just another universalism.
Paulo Friere’s famous advice to those who want to liberate a certain people from the oppression of the powerful was this: The liberator must establish a dialogicity with those he wants to liberate, a horizontal relationship in which both are at the same level and the same plane and it is through their mutual dialogue that they will collectively discover their reality thus liberating themselves of the reality which has been imposed upon them. Any anti-dialogical, top down approach will only result in the imposition of another false reality (Freire).
IV. CONCLUSION
Regardless of the deficiencies at the epistemological level, the Naxalites have made progress in challenging the dominant legal theory. The form and content of their system do not conform to the dominant Weberian rational-bureaucratic formal conception of legality, which is an achievement, for they have not allowed themselves to be trapped in the domain of the dominant universalism. The system derives its legitimacy from the people who are part of it. However there is a need for an ‘epistemic liberation’, the sooner that happens, the better.
BIBLIOGRAPHY
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‘Whatever the achievements of Western bourgeois civilization, these are now exhausted. We are on the threshold of reconstructing a new civilization, a more universal, a more humane, civilization. And that cannot be done without defeating and destroying imperialism on all fronts. On the legal front, we have to re-think law and its future rather than simply talk in terms of re-making it. I do not know how, but I do know how not. We cannot continue to accept the value-system underlying the Anglo-American law as unproblematic. The very premises of law need to be interrogated. We cannot continue accepting the Western civilization’s claim to universality. Its universalization owes much to the argument of force rather than the force of argument. We have to rediscover other civilizations and weave together a new tapestry borrowing from different cultures and peoples.’
- Issa G. Shivji, “Law's Empire and Empire's Lawlessness: Beyond the Anglo-American Law”, (2003)
I. INTRODUCTION
‘Colonialism is a practice of domination, which involves the subjugation of one people to another.’ (Kohn) The process of colonization involves subjugation, domination and exploitation of a people, which radically alters the materialities as well as the idealities of its victims.
Colonial domination has been actively imposed upon its victims by its sponsors through violence and coercion over the centuries. Thus, the sponsors, the oppressors, are the active agents of this process, while the victims, the oppressed, are its passive objects. Oppression is masked under the grand narrative of necessity and inevitability; a facade that prevents the victim from recognizing the ultimate ‘truth’ of his precariously imposed relationship with the oppressor. It is only when the oppressed, the passive object, recognizes this ‘truth’, rejects the oppressor’s grand narratives of the necessity and the inevitability of oppression, shrugs off his passivity and lays claim to agency which had hitherto been the exclusive right of the oppressor, that he places himself in opposition and resistance to the process of colonization. Such a ‘break’ in the process has the potential to eventually lead to an opposite process: that of ‘decolonization’; a process by which the oppressed liberates himself from domination and subjugation. It is this break, the beginning of an opposite process of resistance and opposition to oppression, which this paper will attempt to explore.
In ‘The Wretched of the Earth’, Frantz Fanon made the following observation about the expansive and all-encompassing nature of colonialism’s operations: ‘colonialism is not simply content to impose its rule upon the present and the future of a dominated country. Colonialism is not satisfied merely with holding a people in its grip and emptying the native’s brain of all form and content. By a kind of perverse logic, it turns to the past of the oppressed people, and distorts it, disfigures and destroys it.’ (Fanon) The essence of Fanon’s argument is this: colonialism does not restrict its operations to any specific set of material and non material aspects of the natives’ lives. Rather it intrudes into each and every sphere and aspect of the natives’ individual and collective existence, including their culture, politics, economics, history, religion, law and ethics, subjugating, dominating and distorting it by imposing the oppressor’s version in all these spheres. Through this process, the oppressor appropriates control over the very existence of the oppressed, creating a relationship of dependency between the oppressed and the oppressor.
The process involves, firstly, the silencing of the natives’ voices in each sphere through coercion and violent manipulation by the colonizer, and secondly, the appropriation of the exclusive right of ‘authorship’ in each sphere by the colonizer, usually justified on the basis of a claim to a superior civilization. It was in this way that the European colonizers were able to impose upon the vast majority of the peoples around the world the great narratives of modernity; narratives which were irrelevant to the experiences of those on whom they were imposed. In the process, local narratives of culture, politics, economics, history, religion, law and ethics were silenced, and in their place emerged certain dominant theoretical frameworks in almost every sphere of human existence, which continue to persist to date. Although the twentieth century saw the end of European colonizers’ physical occupation of the natives’ lands, the dominant theoretical frameworks were inherited and adopted by the local elites. Thus, the effects of colonialism are visible in almost every sphere of human existence today.
Subsequently, any meaningful attempt towards ‘decolonization’ must endeavor to counter the effects of colonialism in each and every sphere of human existence. Each and every sphere must be turned into a battle field not only of ideas, but of praxis. The task of decolonization, thus, is indeed a daunting one. While significant progress in terms of both theory and praxis has been made over the past one century, there are areas where the efforts are still at a theoretical level; foremost among such areas is the area of law. The purpose of this paper is to explore the possibilities of the decolonization of law in a concrete, practical context. In doing so, an attempt will be made to explore the extent to which the dominant statist rational-bureaucratic formal legality, imposed by European colonialism and perpetuated by the local elites, is irrelevant to the experiences of those on whom it has been imposed, and will look at the possibility of challenging/contesting it, or certain of its aspects, by focusing on the other/alternative experiences, perspectives and imaginations of law and justice emerging from the peoples’ movements led by the communities of the suffering and resisting masses, which are involved in emancipatory struggles against modern states. The Naxalite movement currently raging across India’s Eastern and Central states of West Bengal, Bihar, Jharkhand, Orissa, Chhattisgarh and Andhra Pradesh will serve as a case study.
II. DECOLONIZATION OF LAW: A THEORETICAL EXAMINATION OF THE CONCEPT
Jayan Nayar, in ‘Peoples’ Law: Decolonizing Legal Imagination’, has carried out a sharp critique of the dominant legal theory which has elevated the Weberian statist rational-bureaucratic formal legality to the position of a universal ideal. He contends that the current universal ideal of ‘Law’ , is actually an imposition, and contrary to the mainstream rhetoric, is exclusive, for it does not cater for the experiences of the vast majority of the world’s population. ‘The universal Law, Law as an idea, that Law that is the proclaimed universal of human social relations, this Law has not been one for the social majorities.’(Nayar) The universal Law is a deception, which in its rhetoric attempts to mask the material differences which exist between people living at different levels of the world order by claiming itself to be the ‘universal of human social relations’. In its operation, the universal Law does differentiate between people on the basis of their ‘material differences’ (Nayar).
A clear manifestation of the ‘material differences’ between the people of the world is the nature of the ‘world order’ that persists today. At the top of the world order is the ‘First World’ which, for Nayar, is ‘the virtual world of ‘anywhere people’. (Nayar) It consists of the rich and the resourceful, ‘models’ of humanity, the very epitomization of ‘success’ within our contemporary ‘civilisational’ adventure.’ Below the First World is the ‘Second World’ which is ‘the located world of ‘somewhere people’. (Nayar) Its landscape is one of labor and service. At the bottom of this order is the ‘Third World’ ‘the world of ‘nowhere people’. (Nayar) It lies in the underground of ‘civilized society’, its inhabitants the disposables of the ordering of civilization. ‘The inhabitants of the Third World are nowhere welcome; they serve best by disappearance, by silence. The Third World is the world of the unworthy, the unfit, the failed, the faceless, nameless, voiceless wretches of the ‘human family’.’ (Nayar)
‘The three Worlds, so described, conform not to any convenient, conventional ‘herding’ of populations into national territorial spaces. Instead, the three Worlds of the ‘global order’ are transnational realities. As such, their constituents fall together not according to national criteria, but according to the materialities of livelihoods and, thereby, the imaginations of futures.’ (Nayar) Although the Law fails to recognize these differences in its rhetoric of universality, in actual operation, it ‘plays essentially different roles with respect to the different constituencies of world order’. (Nayar) With regards to the First World, the Law ‘facilitates and enables the ‘globalizing elites’, with regards to the Second World, it ‘regulates and disciplines the ‘servants’ of the transnational projects’, and with regards to the Third World, it ‘excludes and imposes upon the dispossessed’. (Nayar) Herein lies the ultimate deception of Law, which Nayar calls ‘the underlying untruth of Law’: that it speaks ‘the language of abstractions, within a false location’ and therefore ‘enables the disguised construction of a colonizing regime of administration - the State system.’ (Nayar) Therefore, within the modern State system, the three different world orders continue to exist, albeit in different spheres, under a false notion of ‘co-existence’ which is created on the basis of some overarching illusionary identity such as religion, nationhood etc. Within the territorial boundaries of every modern State, the First World continues to make and benefit from the Law, which is imposed on the Second and the Third Worlds which continue to suffer. The First World continues to oppress, and the Second and the Third Worlds continues to be the oppressed. The Law, the law of the state, serves as the primary tool for the perpetuation of this oppression.
Decolonization starts the moment when the oppressed re-claims for themselves their right of agency, breaks their silence and begins to articulate their own visions of their future based on their own real experience. Any move towards a ‘decolonization of law’ will thus, in the words of Nayar, first ‘seek to reclaim the right of peoples to speak the words and act the actions of law from a position of opposition to the violence’ of the universal Law. (Nayar) A peoples’ perspective on law, in other words, would recognize the reality of conflict in visions of ‘world order’ and would position itself in opposition to the laws of and for oppression. ‘From this the claim to decolonization follows: If it is the desire of the ‘power(ful)’ to take for itself the ‘idea’ of law as it is conventionally understood, if it is the theft of ‘power(ful)’ to appropriate authorship of law for its own sake and negate the right of authorship inherent in the people, if it is the confidence of ‘power’ to do so in ways which blatantly disregards the existence of the people as primary subjects of that law and not merely inconvenient objects to be subjugated, then a ‘peoples’ law perspective would say ‘enough – for this is not our law’.’ (Nayar) It is at this moment that we will be able to mark ‘the end of the abstracted universalisms of Law’ and to open up ‘real possibilities for alternative imaginings of law.’ (Nayar) It is from here that the oppressed people will carve out the space for their own peoples’ law in opposition to the domination of the Law of the modern state.
Nayar lays down the following principles as describing the foundations of a decolonized peoples’ law:
• Judgment: the right/power of peoples to judge the ‘realities’ that are inflicted upon them and to name as ‘violation’ that which is otherwise proclaimed as ‘normalcy’ by the dominant power.
• Authorship: the right/power of peoples to author/create ‘law’ and to define the structures and nature of social relationship conducive to their security and welfare.
• Control: the right/power of peoples to control (and not merely ‘participate’ in) the processes of decision-making and judgment in relation to the matters which affect the daily life-conditions of their communities.
• Action: the right/power of peoples to effect the ‘implementation’ of their alternative visions of social relationships in ways which reinforce and celebrate the diversity of humanity.
Viewed differently, these may also be regarded as the articulation of a re-conceptualized ‘decolonized sovereignty’ on which will rest the structure of peoples’ law (Nayar). An important feature of this sovereignty would be the fact that it would derive its legitimacy ‘internally’, and not on the basis of some external considerations or approvals. As Nayar puts it, the legitimacy of peoples’ law, and the decolonized sovereignty which lies at its foundations, would be ‘bound, not by some abstract construction of a priori truths about social organizational forms and processes.’ Rather, it would be based on ‘the substantive claims of (the relevant) democratization movement which derives solidarities on the basis of the relevance its politics has to its constituencies.’ (Nayar)
Nayar has focused primarily on practical aspects of the decolonization project, as is evident from his emphasis on ‘judgment’, ‘authorship’, ‘control’ and ‘action’. Authors like Walter D. Mignolo and Arturo Escobar have highlighted the need for a prior (or at least a simultaneous) effort towards decolonization at the ‘epistemological’ level. ‘Decolonization of knowledge’ is necessary if the dream of liberation is ever to be realized. ‘The practice of liberation and de-colonization is initiated with the recognition, in first place, of the colonization of knowledge… (and) of the use of imperial knowledge to repress colonized subjectivities’ (Mignolo, and Escobar).
Mignolo and Escobar have identified the role of the ‘politics of knowledge’ which governs the process of knowledge generation. Such a politics determines which source of knowledge will attain the dominating status over all other forms of knowledge. Western European knowledge has been a product of theo-politics and ego-politics, theo-politics representing the authority of the Church over the production and dissemination of knowledge, while ego-politics representing the knowledge produced by the secular thinkers after the dawn of modernity. According to Mignolo and Escobar, over the past few centuries Western European theo-politics and ego-politics has dominated the process of knowledge production and dissemination around the world by silencing all other sources. ‘A specific group of individuals, the majority of whom were, as we know, white, Christian, European men, put into place the basic principles of knowledge, which were complicit with the variegated concept of totality’ (Mignolo, and Escobar). The dominance of the modern Weberian statist rational-bureaucratic formal legality provides an ample example of how a particular type of legal narrative was imposed on peoples across the world and all alternative imaginings of legality were barred from turning into viable realities. To contribute to a world in which different legalities can co-exist, law ‘must be decolonized and refashioned through the ‘geo’ and ‘bio-politics’ of knowledge’ (Mignolo, and Escobar). The need is to move towards a ‘pluri-versality’, a universal project in which peoples will derive their knowledge from their own “spaces of experience” (which they call ‘geo-politics’) and the “horizons of expectations” (body-politics) (Mignolo, and Escobar). ‘The creative work on knowledge and subjectivity comes from the … institutionally and economically disenfranchised (that is to say, intellectual work not at the service of the corporation or the state but geared toward the empowerment of the disenfranchised, the des-inherited)’ (Mignolo, and Escobar); therefore, ‘the grammar of de-coloniality … has to work from bottom up’ (Mignolo, and Escobar). It is important to note that Mignolo and Escobar are cautious enough to point out the dangers of misunderstanding their approach as the creation of just another universalism for ‘to make such a move would be to use the same logic and pretend that a different universalism will be better than the one that is today hegemonic and dominant’ (Mignolo and Escobar).
III. DECOLONIZATION OF LAW IN A CONCRETE CONTEXT: THE CASE OF THE NAXALITE MOVEMENT IN INDIA
In May 1967, a minor clash between a police force and a group of armed peasants took place in Naxalbari, in an obscure corner of West Bengal, India. It unleashed a force of events which escalated over the years into a political movement that derived its name from that area, and brought about far-reaching changes in India's socio-cultural scene. ‘Naxalbari was a water-shed in the recent history of India… For the first time in post-independence India, a movement asserted the demands of the poor and the landless … Today, it continues to arouse them to protest and take up arms against their oppressors, and even take on the Indian state whenever it sends its police to protect these interests, whether in the villages of Bihar, or the tribal hamlets of Andhra Pradesh… By asserting the need of armed retaliation and offensive against the state, … by challenging the state's monopoly of violence, and asserting the right of its opponents to resort to the same violence, the Naxalite movement set the tone for political discourse between the Indian state and the discontented segments of its population in large parts of the country during the next decades…’ (Banerjee).
‘Today … one cannot deny that even after three decades of its tortuous and self-divisive (and often self-destructive) odyssey, the movement that began in Naxalbari (known today as the 'Naxalite' movement) still remains a force to reckon with. The police and bureaucrats of at least seven states (comprising a large chunk of the Indian land mass, and accounting for nearly half of the population) meet at regular intervals to devise ways and means to check what they describe as the 'Naxalite-menace' in areas which are contiguous with the borders of their respective states’(Banerjee). The Prime Minister of India has labeled the movement as India’s ‘gravest internal security threat’ (The Indian Express).
Over the period, ‘the old rural bases of the 1960-70 period have eroded… New bases have developed recently among the tribal poor … where the People’s War Group (PWG) and Maoist Communist Centre (MCC) are active. The spread of PWG activities in Orissa, Chhattisgarh and Maharashtra is also of recent origins - during the last 10 or 15 years - and is significantly confined to the poor tribal people’ (Banerjee). In different areas where the Naxalites operate, they have created ‘liberated zones’ where any interference from the state is violently resisted (Dasgupta). The Naxalite movement’s activities have historically included occupation of state forest lands (the traditional habitats of indigenous tribes which had been appropriated by the state under forestry laws), increase in wages for farm laborers, retaliations in response to feudal atrocities, the forcible occupation of the surplus and benami land of landlords, and establishment of peoples’ courts. Lately, they have been involved in disrupting state attempts to execute contracts/MoUs with prominent mining corporations like Vedanta under which large tracts of traditional habitats of indigenous tribes have been allocated to these corporations for mining purposes. The primary focus has been on disrupting the activities of these powerful mining corporations which have emerged as a threat to the very existence of tribal communities spread across Eastern and Central India. Naxalite resistance to corporate exploitation has invited bitter retaliation from the state, which has recently launched the ‘Operation Green Hunt’, an ongoing campaign involving thousands of paramilitary and police soldiers. ‘Over the past five years or so, the governments of Chhattisgarh, Jharkhand, Orissa and West Bengal have signed hundreds of MoUs with corporate houses, worth several billion dollars, all of them secret, for steel plants, sponge-iron factories, power plants, aluminium refineries, dams and mines. In order for the MoUs to translate into real money, tribal people must be moved. Therefore, this war’ (Roy). Police and paramilitary camps have been set up and the poor have been detained, tortured, jailed on false charges, their houses and fields are being destroyed. There have been hundreds of arrests of the tribal ‘terrorists’ under the ‘TADA’ . Many who have fled into the forests and have taken up arms to defend their traditional lands are being hunted down and killed under the pretext of ‘curbing Naxal terror’ and maintenance of ‘law and order’.
From the perspective of the framework of decolonization presented by Nayar, the struggle between the Naxalites and the Indian state represents the clash of the First World’s interests with those of the Third World which has materialized into a situation where elements of Third World have revolted against the domination and oppression of the First World. In the process, the landless peasants and tribals of India have recognized the deceptive nature of the state law which has served as a convenient tool for oppression against them. Historically, they have seen that while the state has provided effective protection to the landlords’ title over the land tilled by the landless peasants, land reform legislations aimed at empowering the poor have continuously suffered from poor implementation. Forestry laws have excluded the tribals from their traditional habitats and granted control over these forests to corrupt state officials The recent MoUs throw ample light on how the ‘authorship’ of law’ has been appropriated by the rich and the powerful in active connivance with the state. The state is actively pursuing the implementation of these MoUs in utter disregard of the disadvantages to the poor tribals. When they look at the way the state law has readily reacted against the pro-poor organized movements by criminalizing them and cracking down on them (mass arrests, torture, imprisonment, killing of the rebel peasants on the pretext of the maintenance of ‘law and order’), the deceptive and discriminatory character of the state law becomes evident even to the most undiscerning of the eyes. Today, all illusions as to the so called benevolent nature of the ‘Law’ have been de-mystified, and the poor, the victim of oppression, has been forced to declare, in Nayar’s words: ‘enough – for this is not our law’. The Naxalite movement, thus, is doing exactly what it needs to be doing in order to secure the interest of the poor: challenging the ‘rule of Law’. The movement represents ‘the end of the abstracted universalisms of Law’ in large parts of Eastern and Central India today. By taking up arms against the State, by challenging the State’s traditional monopoly over the use of violence, the normally silent victims of domination and oppression have broken their silence and have attempted to re-claim for themselves their right of agency and authorship, for the protection of their own interests. Thus there is a clear ‘break’, signs of a movement towards decolonization.
In order to gauge the extent to which the Naxalites have been able to move towards a ‘decolonized’ law, I shall apply Nayar’s criteria of ‘judgment’, ‘authorship’, ‘control’ and ‘action’ to the three important aspects of the Naxalite movement today: challenge to the concept of state sovereignty through the creation of ‘liberated zones’, redistribution of property rights, and the establishment of Peoples’ Courts.
A. CREATION OF THE LIBERATED ZONES
The Naxalites’ claim to the right to employ violence against the Indian state in order to create, defend and maintain ‘liberated zones’ poses an important challenge to the sovereignty of the Indian state. ‘For the past two centuries or so, the territorially consolidated, centralized, sovereign state has been the dominant paradigm in western political thought and western mainstream political science. It constitutes the ideal of the well-ordered, modern political community. It is considered to be the model which any political community that strives toward modernity is expected to embrace’ (Axtmann). British colonial expansion in India was followed by the establishment of the colonial state of British India which imported with it all the basic characteristics of the modern European state of the time. India’s inhabitants had never witnessed the rule of such an over arching central authority before. A central feature of the modern state was its ‘sovereignty’, which primarily entailed that the state had the monopoly over the process of legislation and the use of violence for the ‘enforcement’ of its law within its territorial limits. All other forms of violence were criminalized, and penalties were imposed upon those who indulged in non-state violence, or challenged the aforementioned legal monopoly of the state. ‘State sovereignty’ also entailed that the state had the right over the natural resources within its territorial limits, especially those which lie beneath the surface of the earth. Although the right to private property was recognized, the state by exercising its ‘eminent domain’, could usurp private property under the pretext of ‘public benefit’. A further feature of ‘state sovereignty’ was the right of the state to impose taxes and collect revenues within its territorial limits. When India gained its so called ‘independence’ from the British, the aforementioned basic features of the colonial state remained intact, with a few substantive modifications
By creating the ‘liberated zones’, and by resisting state and corporate intervention, the Naxalites have disrupted the ability of the Indian state to maintain its sovereignty over such areas which had been originally imposed upon the people of these areas by the British. In doing so, they have attempted to create a parallel ‘decolonized sovereignty’ which derives its legitimacy from its suitability to the needs of the local people for whom the Indian state has historically played no role other than aggravating their sufferings and miseries. ‘British colonialism, through its land revenue policy and elaborate exploitative bureaucratic structure made land alienable on a large scale, especially in tribal areas. The upper caste elites who were dominating each sphere of British administration consolidated their landowning position through the state machinery, ‘de-peasantising’ the tribals and lower caste peasants. The tribals who were cultivating land, cleaning forest within their customary norms and practices without any experience of landlessness, were compelled to work as laborers in their own land and subjected to various kinds of oppression and exploitation, including denial of access to their traditional forest lands’ (Mohanty). The legacy of exploitation and deprivation was further continued by the Indian state. ‘The Indian Constitution, the moral underpinning of Indian democracy, was adopted by Parliament in 1950. It was a tragic day for tribal people. The Constitution ratified colonial policy and made the state the ‘custodian’ of tribal homelands. Overnight, it turned the entire tribal population into squatters on their own land. It denied them their traditional rights to forest produce… in exchange for the right to vote, it snatched away their right to livelihood and dignity’ (Roy). Recently, by exercising its ‘sovereignty’ over tribal lands, the state has granted large tracts of the tribals’ habitats to the mining corporations, utterly disregarding the destructive implications for the local inhabitants and the threat posed to their traditional ways of life. The overthrow of state sovereignty by the Naxalites in the ‘liberated zones’, therefore, is a step necessitated by such circumstances, and represents the ‘authorship’ of a new legality based on a ‘judgment’ of their reality by the tribal communities, and entails an explicit rejection of the dominant statist legality’s rhetoric in which it portrays the modern sovereign state as the ultimate model for the organization of a political society.
B. REDEFINITION AND REDISTRIBUTION OF PROPERTY RIGHTS
Modern property rights, as they had emerged in Europe, entailed an exclusive right of the individual to enjoy his/her property. Such a concept of property was originally alien to the majority of the inhabitants of India before the arrival of the British. For example, in Punjab, ‘exclusive individual proprietary rights in land did not exist in pre- British [era]. Sources of livelihood in the rural areas were not owned individually but by definite lineage groups; consequently the important economic relations were between groups and not individuals’ (Nazir). ‘There were joint estates, where all the shareholders had a common right and interest in the whole of the estate, without any separate title to the lands forming part of the estate’ (Nazir). The introduction of modern property rights in India by the British was based on the need for revenue extraction. The British were content with granting exclusive property rights to the local elites over vast portions of land so that they could be cultivated and revenue be generated from those lands (Mukherji). During the revenue ‘settlements’, rural estates were divided into territorial units (such as ‘mauzas’), and titles to land were formally recorded in the ‘records of rights’. ‘The status of cultivators everywhere was clearly defined in terms of the categories of ‘owner’ and ‘tenant’ and liability for the payment of land tax distinguished from the liability for the payment of rent… proprietary rights were vested clearly and unequivocally in individuals’ (Nazir). Landownership was thus reverted from the lineage and community groups to individuals.
For the native tribals and peasants in the rural areas of Central and Eastern India, the property rights which the new revenue system secured were clearly an imposition, for such rights were not a recognized and practiced phenomenon. A large number of tribal and rural peasants were thus alienated from the lands which they had cultivated for centuries. Historically, rural estates in India had been jointly owned by various multiple lineage and community groups. In many cases, the dominant lineage in a village employed ‘sub-ordinate’ lineages to cultivate their land, the produce of which was jointly shared. However, during the process of revenue settlement under the British, ‘if land had been held for a long time by one lineage group, it was usually treated as a mark of proprietorship. Such lineage group was recorded as ‘proprietors’ and all others as ‘tenants’ (Nazir). Thus, with a single stroke of the settlement officers’ pen, the ‘subordinate’ lineage groups which usually owed their ‘subordinate’ social status to their lower castes, were reduced to the position of ‘tenants’ on the land which they had earlier jointly owned with the ‘proprietors’ as part of a joint estate.
The alienation of a vast majority of tribal and rural peasants from their lands, accompanied by the concentration of exclusive proprietary rights in a few hands, led to huge disparities in landownership in many parts of India. Today, even ‘though the members of scheduled castes and tribes mostly reside in the countryside and derive their livelihood by working on land, they are the most disadvantaged in respect to land. The incidence of landlessness is more pronounced among these groups, the bulk of whom are agricultural laborers having minuscule holdings or are sharecroppers or other types of insecure tenants. A majority of scheduled castes (77 per cent) and scheduled tribes (90 per cent) are landless, without any productive assets and sustainable employment opportunities’ (Mohanty).
The fact that, after its ‘independence,’ the Indian state continued with the existing land distribution shows that the colonial logic of extraction has continued to persist. Although land reforms were initiated in many states to undo historic injustices, the non implementation of land reform legislations, and the state’s readiness, on the other hand, to provide protection to the ‘legal’ rights of the landowners in the wake of numerous peasant movements and rebellions calling for a redistribution of property rights over land, has led to massive disillusionment among the rural and tribal peasants in many parts of India. ‘As pointed out by a number of studies, the inherent loopholes and ambiguities in the legislative measures, slow proceedings at all levels of bureaucracy, lack of updated land records, the ignorance and illiteracy of the scheduled population and the escaping attitude of the large landowners are the major reasons that hinder fair distribution of land by allowing the bulk of landowners to avoid expropriation. Even a slow process of passing of the land to the scheduled castes and tribes … becomes intolerable and non-acceptable to the dominant groups. They resist the allotment of land by committing atrocities on members of scheduled castes and tribes through well organized groups, like the Ranvir Sena, Brahmarsi Sena, Bhumi Sena and Lorik Sena. Even after the land is allotted to the poor, ensuring physical possession of it becomes a major problem, for the landlords often thwart the efforts of the poor by involving them in litigation or used threats or other coercive methods in preventing them from cultivating the land allotted to them. Sometimes small and unorganized groups, with the tacit approbation of the powerful upper-caste landowners forcibly grab the allotted land or throw the members of scheduled castes and tribes out of their encroached waste-land or evict them from the leased lands through atrocities ranging from setting fire to their huts to brutal murders, mostly in league with the police and the administration’ (Mohanty).
The Naxalites’ campaign to appropriate and re-distribute among the poor the surplus and benami lands of the upper caste landlords represents a radical attempt to undo the historic injustices of the colonial era. The Naxalites, who mostly consist of low caste rural peasants and tribals, have not only refused to acknowledge the existing property rights of the upper caste landowners, but also embarked upon the task of ‘authoring’ their alternate ‘laws’ under which new ceiling limits have been set, allowing for the appropriation of surplus landholding (i.e. landholdings above and beyond the ceiling limits) for redistribution among the landless peasants and tribals (Balagopal). The ‘implementation’ of these new laws in the liberated zones not only serves the interests of the social majorities of the area, but also rejects the colonial logic of extraction as the basis of property rights, thus representing a genuine endeavor towards a democratized and decolonized property law based on the experience and ‘judgment’ of the local communities.
C. ESTABLISHMENT OF PEOPLES’ COURTS
A major achievement of the Naxalites is the establishment of the Peoples’ Courts. ‘Any political movement working in villages is forced to decide upon a variety of much less clear and much more subtle problems. For the masses at large, an efficient and just adjudicative mechanism is a necessity, and what they have had till now is a variety of informal local courts-landlords' panchayats, caste panchayats, adjudication by new-found political leaders, and of course the police and courts introduced by the British. None of them is particularly efficient or just, and hence the constant search for a satisfactory alternative’ (Balagopal).
The rejection of the local panchayats and the colonial era state court, and establishment of the Peoples’ Courts in their place, is the most important example of the situation where the poor have claimed and appropriated their right of ‘judgment’, ‘authorship’, ‘control’ and ‘action’. The impact of the Peoples’ Courts is phenomenal in terms of the way they have empowered the poor by allowing them to adjudicate upon their lives without interference of the corrupt state officials or the local landlord. As a consequence, ‘there have been a large number of cases where disputes have been resolved and justice rendered in a fair and humane way’ (Balagopal). The Peoples’ Courts have undermined the traditional political authority of the landlords and state officials over the landless peasants. ‘The arbitration of rural problems by dalit youth with a working class political outlook … is a threat to property and power … [it] deprives political bosses of an important source of power and influence. Most political leaders at the local level maintain their hold on the villages by appropriating to themselves the sole authority of arbitration, and the loss of this authority is a loss of political power … for the policemen the activity of the People's Courts means that no disputes come to them, and that deprives them too of power, influence, and opportunity for graft … it constitutes an appropriation of the substance and form of landlords' power, and its notion of right and wrong is the reverse of the landlords' notion, at least as far as property and caste are concerned…’ (Balagopal).
‘The very fact that a large number of people do bring their problems to the Naxalites' People's Court is proof of the efficacy and integrity of the arbitrators, or at least the people's faith in them… the problems that are brought before People's Courts range all the way from family disputes to property disputes between kinsmen; from problems of caste and kinship to criminal offences such as theft, assault and murder…’ (Balagopal). Instances have been cited where member of the Naxalite cadre have refused to defend themselves or to be defended by state lawyers in front of the state courts and to participate in the court proceedings, demanding that their cases be presented before the Peoples’ Courts (M.R.).
D. EPISTEMOLOGICAL DECOLONIZATION OF THE LAW
At the epistemological level, the Naxalites have made significant breakthroughs. They have refused to accept the rhetoric of the dominant statist legality and introduced an alternate legality which is derived from the experience of the local communities and stands in opposition to the legality which has been imposed upon these communities by the modern state in a top-down fashion over the past few centuries. However, drawing on the argument of Mignolo and Escobar, it is my contention that at a more fundamental level, their attempts towards a decolonized law have been marred by the fact that the epistemology of their theory and praxis is not purely based on the ‘body-politic’ and ‘geo-politic’ of the spaces in which they are operating. The Naxalite Movement is a left wing movement which draws its inspiration from Maoism. By adopting a particular ideology, the Naxalites have replaced the universalism of the Weberianism by another type of universalism i.e. Maoism. Maoism was the product of very specific experiences of a certain people who had arrived at it through their own body and geo politics. To impose this product of an alien experience goes against the very idea of ‘pluri-versality’ which for Mignolo and Escobar is essential for any genuine effort towards a decolonized epistemology. Any further possibility of a de-colonial law-doing in the future is dependent upon whether the Naxalites modify their theory and re-formulate on the basis of the geo-politics and the body-politics of their locality or not, otherwise they will end up creating just another universalism.
Paulo Friere’s famous advice to those who want to liberate a certain people from the oppression of the powerful was this: The liberator must establish a dialogicity with those he wants to liberate, a horizontal relationship in which both are at the same level and the same plane and it is through their mutual dialogue that they will collectively discover their reality thus liberating themselves of the reality which has been imposed upon them. Any anti-dialogical, top down approach will only result in the imposition of another false reality (Freire).
IV. CONCLUSION
Regardless of the deficiencies at the epistemological level, the Naxalites have made progress in challenging the dominant legal theory. The form and content of their system do not conform to the dominant Weberian rational-bureaucratic formal conception of legality, which is an achievement, for they have not allowed themselves to be trapped in the domain of the dominant universalism. The system derives its legitimacy from the people who are part of it. However there is a need for an ‘epistemic liberation’, the sooner that happens, the better.
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