In reading Oishik Sircar’s Violent Modernities I found something akin to a fortune cookie: wrapped in the wafer is a gift in the form of an implicit message. The medium of this message is Oishik’s style, citational practice, acknowledgments, footnotes of gratitude; his careful use of the first-person narrative that is persistently soul-searching and self-reflexive. The gift is his creation of a bibliography, a genealogy of critical legal scholarship in India, couched in a sort of oral history; Oishik’s private history of postcolonial legal studies in India. In the “Dumbledoresque” Upendra Baxi – Professor of Pathos –  S. P. Sathe, Flavia Agnes, Kalpana Kannabiran, Ratna Kapur, Sharmila Rege, these are not just names of scholars widely cited in journals, but are activists, pedagogues, jurists engaging in critical praxis. The ties that the critical legal scholar has with them are affective and emotionally laden. The best way to approach these figures is not just through scholarly symposiums but to trace their intellectual biographies which, like the Midnight’s Children, unfold alongside the story of postcolonial India as told by the marginal, the subaltern, and the outsider. 

Oishik’s genealogy is not the kind that ‘demystifies’ history by unearthing the dark origins of contemporary ideas (think Nietzsche and Foucault) but a genealogy that opens possibilities of different ways of being and thinking, offering directions for change. Angela Davis, Gina Dent, Erica Meiners, and Beth Richie call this “critical genealogy”, “…one that emphasizes how important it is to trace political lineages. We offer a set of ideas and descriptions of unfinished practices rather than promoting rigid definitions…”[1] In Violent Modernities, this more quiet and reparative section in the second half of the book is something I read as nourishing our praxis by giving us a sense of rootedness, a much-needed confidence in dark times. Here then is a question I have for Oishik: is there a need to write a systematic history of this genealogy as a way of consolidating critical legal studies in India? What might it look like? What are its risks and possibilities? I will return to why I think this is necessary towards the end of this comment.

Progressive leftist lawyers and legal scholars in India are flailing. The reason is obvious. The judicial pact we entered into as lawyers is now breaking. By the judicial pact I mean the approach to the law we are trained in law schools; the way we diagnose the problem and try to solve it; a style of ‘legal thought’ which includes modes of reasoning, argumentative techniques, interrogating doctrinal consistency, the stuff of procedure, facts, deference to constitutional principles, etc. This is the dimension of the law generally understood as ‘autonomous’; it is a point of view that is internal to the field called the ‘law’. The autonomous functioning of law can be so sustained only when it is in sync with the wider social context. Until recently there was always a tacit agreement to keep this harmony such that lawyers and legal scholars could continue to be a ‘profession,’ maintaining their exclusivity and expertise, thinking independently and from within their parameters. I sense that this judicial pact is now broken. This means that certain modes of ‘legal thought’ and reasoning fall on deaf ears, laughably out of touch with reality. Whereas Oishik’s longer overview of postcolonial Indian law criticizes the ‘spectacle of constitutionalism’ with its false promises and endlessly proliferating rights discourse, now the higher judiciary has spectacularly abdicated even this farce. Courts are openly retributive and vengeful, going after the government’s enemies. Teesta Setalvad and Bilkis Bano’s cases are only the most recent examples. This leads me to think that: (1) the reason for doing critical legal studies in India today is not just that it is urgent and necessary, but it is the only way of doing it. It is only via approaches to the law that are political, queer, feminist, subaltern, poetic, aesthetic, and anthropological, can we grasp its functioning. And (2) the role of critical legal scholarship is to recalibrate the conjunction of the autonomous function of law with its social context. If most of the essays in the book were written as a response to a phase of Indian political history that stretches from the New Economic Policy and Babri demolition (the 1990s) to the BJP’s full majority in the Indian parliament (2014-18), is there now, since 2019, a qualitative shift from that earlier phase of socio-legal India, you study? If the book describes a post-1991 phase of Indian history, are we now entering a new paradigm requiring us to substantially rethink the terms of critique that the book offers, say, in “Spectacles of Emancipation”? Is there an irony in the title of the book, because, perhaps there is a new ‘New India’? Is the critique of the liberal discourse of rights, constitutional fetishism, the human rights discourse, etc. not just inadequate but counterproductive if we are in fact in a new phase of Indian history? Or am I exaggerating the change, and that what we are seeing today is an intensification of the transformations that you observe in the 1991-2014 phase?

This leads me to my final point. The first half of the book is squarely a work in critical theory. Its critique of rights is located in the venerable tradition of Karl Marx’s On the Jewish Question, Nietzsche, Foucault, Wendy Brown, Duncan Kennedy, and others. Contextualizing this critique of rights in postcolonial India, Oishik launches a persuasive and formidable challenge to those who show too much faith in the law, fetishize constitutionalism, legalisms, the proliferation of rights, setting up more courts, tribunals, and committees in operation. In contrast to the “privatizing” of Emancipation, Oishik gestures more hopefully to political society, “the contested cultures of the quotidian, the cacophonous politics of the street, and the mundane negotiations of the everyday and the ordinary…”[2] This line of argument lends itself to the risk of sentimentalism that involves transferring one’s disciplinary desires by projecting the solutions into other avenues (‘collective’, ‘political society,’ ‘people,’ ‘rooted democracy’ etc.)[3] But the main question I have is how to think about the relation between ‘critique of rights’ and ‘critical praxis’ more clearly. How to put Marx’s On the Jewish Question in dialogue with his eleventh thesis on Feuerbach? Bernard Harcourt’s Critique and Praxis is a recent attempt at answering this question.[4] Critique without praxis can become overly technical, philosophical, and abstract, not leaving any room “for constructive engagement with practice,” unable to converse with mundane legal struggles.[5] In the North Atlantic academy, critique has become overly textual, cut-off, self-referential, disengaged, and super-specialized. On the other hand, legal struggles without critique tend to produce an empty and hollow view of rights – as Oishik brilliantly shows. Without critique, Harcourt says, “liberal rights become purely rhetorical tools or strategic weapons that can be deployed in court in any manner to achieve a desired political objective…rights become pure tactics. What this calls for, then, is just legal expertise – skilled trial or appellate lawyers – who need not even engage in critical theory.”[6] 

We cannot not lay claim to rights – for bail, habeas corpus, free movement, marrying a person of one’s choice. How then can critique aid and augment, let’s say, litigation and vice versa? I think there is an answer to this conundrum, and this is the hidden message in the fortune cookie. The answer takes me back to what I began with: it is in the genealogy of critical legal studies that Oishik provides us with. This work needs to be done but the hypothesis is that these are figures (Sathe, Agnes, Baxi, Kannabiran, etc.) who engage in a “critique” that is not entirely in the tradition of On The Jewish Question, Nietzsche, Foucault, Wendy Brown, and US-Critical Legal Studies movement. I think they have successfully avoided some of the pitfalls of critical theory in the continental and North-Atlantic tradition not getting calcified by the demands of the publishing industry. I think they have more successfully found ways of keeping critique in dialogue with praxis. At least such is the hypothesis and I might be proved wrong. But as I see it, this is a direction of study and an overarching agenda that Violent Modernities sets for Critical Legal Studies in this yet another new India. 

[1]  Davis, Angela, Gina Dent, Erica Meiners, Beth E. Richie, “Preface”, Abolition. Feminism. Now. (Chicago: Haymarket Books, 2022.) 17 (e-book)

[2] Oishik Sircar, Violent Modernities: Cultural Lives of Law in the New India (New Delhi: Oxford University Press, 2021) 46

[3] Julia Stone Peters, “Law, Literature and the Vanishing Real: The Future of an Interdisciplinary Illusion,” PMLA, Vol. 120, Issue 2, 2005 442-453. As Peters suggests, there is a tendency for lawyers to project onto other fields like literature, aesthetics, politics etc. their own humanist desires, and this is the sort of risk that I am suggesting above.

[4]  Bernard Harcourt, Critique and Praxis (NY: Columbia University Press, 2020)

[5] Bernard Harcourt, “The Critique and Praxis of Rights,” University of Colorado Law Review, (Vol. 92, Issue. 4, 2021) 

[6] Ibid

Rajgopal Saikumar is a postdoctoral fellow at New York University in the College of Arts and Science.