It was a pleasure reading Oishik Sircar’s “Violent Modernities”, which is an excellent and essential read for anyone interested in a broader understanding of constitution, law, rights, citizenship and the postcolonial state. Although the focus of the book is on India, many of the critique offered in this book may equally apply to other postcolonial countries in the region. Presented below is a commentary of sorts about thoughts provoked by the book. Two points need to be foregrounded at the outset, and I will return to both in the course of the discussion below. First, this book is a trenchant critique, and a powerful indictment of the social contract promised by the Indian Constitution. Though it may not be for the faint of heart who seek solace in or have been conditioned by nationalist myths of a golden past or a glorious future of a homogenous nation; this book ought to be an essential read for everyone—particularly for its ability to hold up a mirror to conventional narratives about the promises of liberalism. Second, for those afflicted by methodological nationalism, this book will be counter-intuitive and perhaps even unorthodox relative to traditional approaches to method. The book is interdisciplinary, critical and consistent in its self-reflexivity about the author’s agency and subjectivity. The chapters in the book are a collection of essays penned by Sircar at various points in time. They are not organized chronologically, yet if one were to read them in order of chronology—Sircar’s journey from a student to scholar is easily discernible, not least because of the erudition and prose offered in the pages of the book. Sircar is invested in scholarly ethics and responsibility throughout the book—and displays remarkable fidelity to the project’s complexity through scholarly and critical prowess, and vulnerability—few scholars will brave the latter, for which Sircar is worthy of praise.       

I will focus on three crosscutting and recurring themes of the book namely, emancipation, rights and history; representation and agency; and scholarly ethic of responsibility, activism and alternative futures. 

1. Emancipation, Rights and History

The first theme is initially framed in the first chapter and developed throughout the book. This chapter is appropriately titled Spectacles of Emancipation- reading rights differently. Considering the timeline of this chapter (a decade between 2000 and 2010), the scholarly ruminations read almost as a prequel to the present. There has been a palpable shift in the lexicon of global politics from the language of human rights to national security to apparently genocide and fascism these days. Those trained in or aligned with the liberal left are often left wondering—”how on earth did we get here?” Sircar partially answers this question—in the Indian context—by offering some introspection on our collective complacency and complicity. This first chapter examines the themes of promise and performance of law as an emancipatory tool on the one hand, and the law as a tool of domination on the other. This is not an uncommon theme in studies of South Asian law or history among several other disciplines. However, Sircar not only ventures into concrete illustrations of this tension; but also complicates it by showing how the law creates spectacles of emancipation and justice that assist in preserving the rightless citizens’ continuous faith in it. In other words, the  state and the market rely on and draw legitimacy from this faith in the law, despite largely failing to uphold the constitution’s promises of emancipation.

Sircar chalks out two types of Emancipation. The first kind, Emancipation 1 relies on this framework of spectacle to ostensibly reinforce the emancipation-domination dichotomy. Many of the other chapters continue to carry this theme to unearth and illustrate the insidious and totalizing ways Emancipation 1 operates.  The second, Emancipation 2 relies on solidarity and politics of the quotidian, which I shall return to towards the end of my commentary.

The origin point of Emancipation 1 begins with the constitutional framework which promises concrete fundamental rights; and other indirect rights entrusted to the state for progressive realization in the form of the Directive Principles. This framework creates the initial social contract between citizens and the “paternal” state. Subsequently, the liberalization of the Indian economy in 1991, and the encasement of the Indian constitution within the emergent paradigm of global economic constitutionalism transformed and privatized the sociopolitical practices of statecraft and citizenship. Now in addition to the state, the market—through neoliberalism, becomes a contender for regulating and determining the realm of rights to the citizens. Thus, governmental power, which had been traditionally limited by the law and the constitution appeared to also be limited by the market.

These developments had an attendant effect on the meaning of emancipation. Sircar argues that the new paradigm of rights in the neoliberal era has resulted in transfer of a substantial part of state-accountability to the market. This “transformed” state embraced international obligations to facilitate the flows of global capital, trade and investment. These objectives have been prioritized over constitutional obligations owed to Indian citizens and people. This again, is a familiar story in other contexts. Neoliberal and structural adjustments agendas have been peddled in the Global South with great success for the “peddlers”.[1] Across regions as diverse as Latin America, Asia and Africa, the development discourse has never stopped searching for an optimal arrangement of institutions for transmission of global capital.[2] Sircar deems this narrative as a singular movement towards some future Promised Land. In the Indian context, Sircar argues that the agenda of global economic restructuring has resulted in largely uncritical acceptance of the confluence of state and market forces. This narrative is scripted by the liberal rights discourse of the Indian constitution through its web of laws, rights and courts sets out to remedy inequality, subordination and exclusion.

This narrative of Sircar’s Emancipation 1 causes what he identifies as a history vanishing moment. India’s post-liberalization legal and judicial discourse erases the histories of the contested and insurgent origins of the Indian Constitution, and complex subaltern struggles. Thus, the idea of modernity is constructed through a singular, celebratory and linear narrative of the subaltern’s journey from repression to emancipation. To be sure, modernity also reproduces itself in popular imagination and public memory.  Having established the modus operandi of Emancipation 1, Sircar offers concrete examples of law’s relationship with the subaltern. He briefly elaborates on the state’s ambivalent and ambiguous approach to rights surrounding homosexuality, incarceration of human rights defenders, urban evictions, and land acquisition (among others). These rights generated just enough spectacle without conceding too much of the state (the private interests it protects). The outlook, thus, seems bleak for the subaltern in (and beyond) India.

I may dare to double down on Sircar’s cynicism by pointing out that other South Asian countries including Pakistan and Bangladesh suffer from similar malaise of unbridled conflation of state and private power. Post-independence constitutions were ushered in to these countries in radically different political contexts. Yet, these Constitutions did not operate as tabula rasa. The process of economic restructuring began long before decolonization and the neoliberal moment. Eighteenth century changes to property relations in British India allowed the colonial state to consolidate economic and political power. The colonial legal system stood on the edifice of these property relations.[3] Its objectives included the facilitation of the flow of capital (read economic extraction) and the sanctity of private property. A plethora of laws and codes accompanying the development of the legal system had an attendant effect on private laws including family and personal laws—which were inevitably tied to identities of caste, gender etc.[4] E.P Thompson famously offered the law as power versus emancipation dichotomy (in the British context), for which he had suffered, in no small measure, the scorn of his comrades on the Left.[5] In the Indian context, this tension played out even within anticolonial movements, which was not only split along elite-subaltern lines but also within these groups.[6]

Taken together, a legal system erected over unequal relations of property, coupled with unequal and unresolved politics were transferred onto the postcolonial framework, hoping that the constitution—if packed with enough rights and rhetoric may eventually resolve these foundational contradictions. The remaining chapters of “Violent Modernities” speak to this paradox in the context of the rights of sexual and religious minorities. Taken together, these incongruities provide a sobering account of the majoritarian social contract upon which the postcolonial state stands in India and elsewhere.     

• Representation and Agency

Having thus arrived at the postcolonial moment, it is time to move on to the second theme in Sircar’s book i.e. representation and agency. Sircar penned a chapter on “Bollywood’s law” that unpacks how the miscegenation between the state and the market produces an image of Emancipation 1. The public devours this image, sustaining popular belief in the state’s spectacles of law and justice. Sircar illustrates this mutually co-constitutive process through the depiction of the Gujarat Riots in several films, including Kai Po Che and Dev. At the heart of these discussions, Sircar argues, is cinematic insistence on sanitization of history. Such depiction, among other things, fails to engage with the question of religious minorities. According to Sircar, this failure ultimately demonstrates the state’s inability—and unwillingness—to protect them. Though Sircar limits himself to this discussion, his arguments might productively interrogate the general state of the film industry in its facilitation of projecting the spectacular image of the State and Emancipation 1 for public consumption. I will briefly explore the extension of Sircar’s observations—which I largely agree with. I must, however, begin with a necessary disclaimer at this juncture that I claim to possess no expertise that allows me to hold myself out to be a film critique. Therefore, I mostly rely on my personal opinion as a consumer of cinema, and opinions of scholars from the literary field whose critique resonated with mine.

Bollywood seems to have gone through significant transformations. Public-private collusion, and majoritarian inclinations are evident in the kind of movies that are made to push hyper-nationalist agendas and historical revisionism and contestation. Debates over censorship and historical accounts in movies like the Kashmir Files or Padmavat are cases in point. History is risky business in India these days as battle lines of contemporary identity politics are drawn across temporalities. For historians of South Asia, however, the present relevance of their work in terms of real world impact is perhaps unprecedented. A historical epic on the Ayodhya may likely be under way if the Bollywood star studded inauguration if the temple is anything to go by. Where the film Bombay had evoked controversy, its impending sequel may be a celebration of Bollywood refashioning itself in the image of a majoritarian state. 

Beyond historical epics, there are no dearth of mainstream Hindi movies whether in the avatar of a Singham, Simmba or Raees that normalize the abuse of police power (including extrajudicial killings) and repression. To return to Sircar’s original framing, these themes reinforce the postcolonial state’s heady responsibilities under Emancipation 1 that often masquerades power as justice. Citizen’s rights seem to have disappeared from this narrative—atleast for mainstream public consumption. Gone are the 1950s, when Raj Kapoor in the image of a Chaplinesque tramp and charming swindler sang and danced his way from the countryside to the city of Bombay in Shree 420”.[7] Rochona Majumdar’s reflections on this film provide an important prelude to Sircar’s take on the 2000’s era of Hindi cinema. Kapoor represented the ordinary citizen i.e. “the people” in the Indian Constitution in the throes of the impending sociopolitical transformation of independent India. Bombay’s streets became Kapoor’s humble abode. The structural exclusion that ordinary citizens like Kapoor must surmount for social mobility is represented by the squalor and overcrowding in Bombay, juxtaposed against the cityscape of petty crimes. The numbers 420 in the title of the movie refers to section 420 of the Indian Penal Code 1860. It criminalizes theft, cheating and deception. Perils and criminality notwithstanding, the subaltern nevertheless stakes his claim on the national space. Kapoor’s character—despite the poverty he endured—celebrated the national project and its possibilities as he broke into a song and dance to the now-iconic tune of “my shoes are Japanese, these trousers are English, my red hat is Russian, but still my heart is Indian”.

Broader changes to structures of governance had significantly reshaped the Indian state. This shift concomitantly demanded or rather constructed an image of a different India on the silver screen through an iterative process. While we are on the subject of the production of images, Sircar complicates the discourse about imagery by showing the centrality of agency. The second chapter of the book titled “Beyond Compassion: Children of Sex Workers and the Politics of Suffering” coauthored by Sircar and Debolina Dutt painstakingly shines a light on the struggles of children of Sex Workers. They critique the conventional depiction of the lives of these children in documentaries for the voyeurism they represent. Instead, Sircar and De offer a counter-narrative of these children’s collective mobilization to claim rights and agency that might allow them to live their life with dignity. The attention to agency in the book is refreshing. In many ways, it is a sobering account of the “development” or aid industry founded upon the consumption of images of poverty of Global South nations. After all, the First World or North has now for a long time taken upon itself the responsibility and “civilizing” mission to save the Third World or the South. This responsibility largely stems from the obligations and liabilities of the South whose land, labour and resources have been at the service of the North’s prosperity. In research, these global asymmetries result in the erasure of agency. This issue of agency is inadequately recognized in the market that produces and publishes research. Local researchers are seldom blind to this reality but are either ill-equipped with critical research tools, lack the necessary power to dictate research agendas set in the North, or simply cater to Northern consumption i.e. selling what sells. In most cases, such researchers operate as local informants.  

• Scholarly Ethic of Responsibility, Activism and Alternative Futures

The above discussion of agency presents an apt opportunity to visit the third and final theme of this commentary i.e., scholarly ethic of responsibility, activism and alternative futures. Sircar over-delivers on ethics of responsibility. The chapters that focus on children and Gulberg are especially worthy of mention where he not only identifies agency as a problem in popular depictions of history and memory, but also provides agency to the protagonists of his narrative. On this score, he also succeeds in his activism by not speaking for but speaking through the subjects of his research. Moreover, he has taken great care to underscore his positionality and privilege throughout the book. Taken together, these aspects of agency, activism and positionality offer fresh insights on how we might think of method in research, particularly those pertaining to the Global South.    

Sircar succeeds in presenting a scathing critique of rights and the constitution. His argument largely rests on the assumption that rights emerged as a means to limit sovereign power. Once constitutionalized, however,  the Sovereign determines how these rights were interpreted, implemented and desecrated. The structure of the Constitution itself, particularly in the way that Directive Principles are interpreted to be within the realm of perpetual “progressive realization” also absolves the state from accountability and implementation of rights—this is true of other South Asian Constitutions too. Sircar goes a step further and argues that the articulation of these rights is conditioned by vocabulary that is manufactured by the state. Therefore, political and civil society claims are now limited to the language of law and rights. Sircar makes a case for hyper-legality that manifests itself in myriads of statutes that carry strict punitive sanctions including life; and judgements by courts that may dole out such punishments to continue the spectacle of justice. The spectacle of Emancipation 1 has enabled politics to migrate to courts—or in other words substituted other forms of radical or counter politics. Despite the spectacular history of judicial activism through public interest litigation or social action litigation, Sircar points out that the Indian Supreme Court has upheld the constitutionality of a plethora of draconian national security laws including for example the Terrorist Activities and Disruptive Activities (Prevention) Act, 1987, the Prevention of Terrorism Act, 2002, and the AFSPA, 1958.

Sircar’s views on possibilities of counter-politics against the sovereign structure are bleak.  He succeeds in showing his readers that courts tend to avoid the issue of structural exclusion. Even landmark judgements that enhance rights have not succeeded in transforming structural injustice. Sircar attributes the lack of economic and political power among those who stand to benefit from these judgments. Access to justice tends to come easy to the “Haves” relative to the “Have Nots” on account of costs and delays associated with litigation.[8]

I agree with Sircar on many of his observations, particularly that the state should not be regarded as the end of all emancipation. However, our views diverge in outlook—though I am hopeful these differences may be mitigated. It is on account of this divergence that I may venture with some critical comments on the book. First, Sircar leaves his readers with an effective and well-executed critique. However, he hints at—without fully delivering on—what lies beyond that critique. Are alternative futures possible beyond Emancipation 1? Moreover, was (or is an alternative future still)  possible within the framework of Emancipation 1? Afterall, the liberal constitutional project had been considered radical for its time, particularly for the rights it offered to former colonial subjects—and the law can aid in perforating the hegemony of the state. E.P Thompson had considered this very aspect of the rule of law to be “an unqualified good”. Sircar’s reading seems to be far more critical, in that the rule of law seems to be a chimera of sorts—promising but not delivering. Instead, Sircar pins his hopes on Emancipation 2, which he eloquently claims may lie in “non-movements” taking place “in the contested cultures of the quotidian, the cacophonous politics of the street, and the mundane negotiations of the everyday and the ordinary” (p 46). This description fits with an apt account of the Global South. It also avoids fetishizing the South and Third World actors from the narrative of being in a constant state of “resistance”.

For arguments sake, even if we assume Southern subalterns to have a higher tolerance and threshold for disparity; it appears that inequalities have been normalized across the world. Politics and mobilization have become uncertain. We are no longer sure what it might take for people to take to the streets. We know people are not moved to action despite evidence showing government’s legal maneuvering to conceal immovable assets owned by a Monarchy, while ordinary people struggle with housing let alone ownership—as in the case of the United Kingdom. We also know people do not take to the streets when an impending presidential candidate gets elected despite open racism and misogyny (and who may possibly get elected again) as in the case of the United States. However, we also know that farmers’ protests around the world is either feared by the state to warrant punitive action as evidenced in India and France; or being appropriated by Right Wing parties. Thus, knowing what does and does not precipitate action is just as important for understanding Emancipation 2.

In various chapters, Sircar shows varieties of politics that he finds concerning including for example, by the Left’s turn to legalism and courts, and strange bedfellows made out of intimacies between queer politics, Hindu rightwing nationalism, and neoliberalism. Rightwing and majoritarian politics are better-resourced and organized with the capacity to envelope and appropriate emancipatory politics and symbols representative of Emancipation 2. In recent years, we have witnessed that even B.R. Ambedkar and the revolutionary poet Kazi Nazrul Islam have not been spared from this onslaught. Nevertheless, being privy to this knowledge and having the capacity to identify these convergences and appropriation are likely to aid in the construction of Emancipation 2. Sircar’s path to Emancipation suggests that all rights seekers must continuously interrogate the law and its promises of emancipation without being blind to the promise of liberal rights. The state and market must be questioned, and we must understand how they are co-constitutive to wrest rights from the captivity of rule of law discourses. Sircar recommends Emancipation 2 as a way to engage in politics but does not expand on it enough. Although he acknowledges constraints of space in his introduction to the book, the reader is left wanting more of Emancipation 2—which demonstrates Sircar’s success in laying out the earlier critique of Emancipation 1.

My second, rather minor critique is on the structure and writing of some of the chapters. Sircar’s admiration, judging by some of his mentors and inspirations, for pathos is evident—and he succeeds in moving the reader. However, in some parts of the book, Sircar’s erudition and high prose appear to be both a blessing and a curse. In certain sections, the arguments seemed to meander and lose critical bite. This is less of a critique and more of an invitation to the author to embark on the construction of Emancipation 2 with a greater degree of precision in his next project.   

Conclusion

This book is a well-rounded and timely critique of the post-colonial state and liberal constitutionalism. However, there is more to this book than its title might suggest. By “cultural lives” of law, the book appears to allude to catering to readers of law and humanities. However, it offers so much more to a wider audience especially within public law. Constitutional law scholarship has conventionally either adhered to doctrinal approaches rooted in Euro-American designs or celebratory narratives. This book is a timely intervention for introspection, critique and assessment of how the Constitution has performed, and what the future it holds for “the people” to whom its powers purportedly belong. The book is also an invitation for pedagogical reflections on how constitutional law is taught in the classroom. South Asia has been ready for quite some time for a shift from black letter approaches to Socratic ways of thinking about the law. This book is most certainly fit for supporting such shifts in pedagogical and critical thinking.        

[1] Contreras, Ricardo. “Competing theories of economic development.” Transnat’l L. & Contemp. Probs. 9 (1999): 93.

[2] Faundez, Julio. (2012) “Law and Development: Critical Concepts in Law.” Routledge

[3] Farid, Cynthia. “Perceiving law without colonialism: Revisiting courts and constitutionalism in South Asia.” International Journal of Law in Context (2023): 1-18.

[4] KOLSKY, ELIZABETH. “Introduction.” Law and History Review 28, no. 4 (2010): 973–78.

[5] Thompson, Edward, and E.P. Thompson. “THE RULE OF LAW IN ENGLISH HISTORY.” Bulletin (Haldane Society of Socialist Lawyers), no. 10 (1979): 7–10; Merritt, Adrian. “The Nature and Function of Law: A Criticism of EP Thompson’s” Whigs and Hunters”.” British Journal of Law and Society 7, no. 2 (1980): 194-214.

[6] Farid, Cynthia. “Imperial structures and insurgent agents: Historical reflections on lawyers and social movements in South Asia.” In Research Handbook on Law, Movements and Social Change, pp. 87-101. Edward Elgar Publishing, 2023.

[7] Majumdar, Rochona. “Song Time, the Time of Narratives, and the Changing Idea of Nation in Postindependence Cinema.” Boundary 2 49.1 (2022): 105–135. Web.

[8] Galanter, Marc. Why the Haves Come Out Ahead: The Classic Essay and New Observations. Vol. 23. Quid Pro Books, 2014.

Cynthia Farid, is a Global Academic Fellow in the Faculty of Law at the University of Hong Kong.