When “the state of exception… becomes the rule, then the juridico-political system transforms itself into a killing machine.”
– Giorgio Agamben, State of Exception
There are certain times in a nation’s history when certain events and acts define its character and shape its further existence. The Dreyfus Affair, which rocked France from 1894 to 1906 centring around the guilt or innocence of the army captain Alfred Dreyfus, a French Jew convicted for treason (falsely as it was found later) was one such extraordinary event. It was one in which writers like Émile Zola took on the hallowed army of the nation in what in India of the present would be considered as an “anti-national” act.
The response to the brutal devastation of the life of the eight-year-old girl in Kathua is one which should leave a lasting imprint on India as a nation. And the early signs are terrifying. It is not that the land of the million mutinies has not seen violence. In fact, it is no stranger to it, from state-sponsored communal pogroms and riots to quotidian acts of oppression, especially perpetrated on Dalits and Adivasis, to recent lynchings of Muslims. It is, also, needless to say, not a stranger to rapes, even of young children.
But what marks the case of Kathua out is the brazen and public display of support for the perpetrators of the crime by the ruling party, and its appropriation as a nationalist act through an open mobilisation of the Hindu majority. Add to this the deafening silence of the highest echelons of the Modi government for a long time.
All states have their structural imperatives. Yet there are qualitative differences between different governments. The Nirbhaya rape case of 2012, another landmark in India’s history, sounded the death knell of the Congress government by exposing its silences. There the silence was borne out of incompetence and failures. Here the silence of Modi and his government, as always, was strategic and clinical. It is borne out of Hindu nationalism’s raison d’etre of marking out bodies as Hindu and Muslim and dispensing justice accordingly. The eight-year-old, unfortunately, turned out to be “Muslim.” While all the lynchings and killings of Muslim men were met with stony silence, the fact that the victim was a girl child finally coerced some platitudes from the government.
The eight-year-old girl was reduced to what the philosopher Giorgio Agamben has called the state of “bare life” – her “entire existence… stripped of every right by virtue of the fact that anyone can kill [her] without committing homicide.” She is not a citizen but a mere biological body belonging to the female sex that can be violated at will. Yet, paradoxically, as Agamben shows, the production of bare life and the stripping of rights itself happens through a legal process where law itself decides that it will not operate in certain places. This is “the paradox of sovereignty,” namely “the fact that the sovereign is, at the same time, outside and inside the juridical order”.
After all, the little girl belongs to Jammu and Kashmir, the most militarised zone in the world, where normal laws and protections do not apply. It is where the Armed Forces Special Powers Act is in place which has ensured that no army or paramilitary personnel have been brought before a civilian court in three decades of militancy. Kashmiris are paradoxically excluded, yet included. Such states of emergencies are called “state of exception” by Agamben.
Is it then surprising that some of the main actors in Kathua rape and murder are policemen belonging to a force called Special Police Officers, specifically constituted to fight militancy and which is ill-trained and paid less than the normal police force?
The little girl was thus not just the object of brutal gender and sexual violence, but also of the violence of the nation-state, of rape as a political tool. Thus, violence against girls and women becomes a nationalist act par excellence. The impunity of the security forces does not derive just from a pathological masculinity but also from the nation-state’s states of exception. The calls to protect children with further stringent laws or capital punishment for the rapists who rape children do not address this fundamental fact. Paradoxically, many who want justice for the little girl would be witting or unwitting supporters of AFSPA.
The eight-year old’s fate was sealed as she belonged to the nomadic Bakarwal community, officially Muslim. And the community had to be driven out to maintain the demographic integrity of the region. The act against her was reportedly planned for months; it was not just a criminal act but tied to the larger project of state-making. All those well-intentioned people who have come out in support to reclaim her as “India’s daughter” should not be oblivious to this reality. Because some responses even talked about how patriotic the Bakarwal community was in the past as if the little girl’s life mattered only if it was seen through the prism of the nation-state.
When Prime Minister Modi finally spoke without naming the incident specifically, reduced the act to a crime, as an “evil within our society” and as a “challenge to social justice.” The act was also conflated as a generic act with the other brutal rape in Unnao. It has nothing to do with his party’s project of majoritarian nationalism or a masculine nation-state.
But the little girl’s tragedy is even more heartrending for she was subject to multiple oppressions and competing claims over her body. The community that she belonged to existed on the margins of Kashmiri society, both in economic and social status, akin to Dalits elsewhere in India. As a report put it, they were merely tribal for the Kashmiri Muslim and merely Muslim for the Hindu community. She is also a symbol of the colossal dispossession faced by the tribals in India. Then, she had to contend with the patriarchy and misogyny of her own community. A bare life indeed.
India’s Dreyfus moment is here. But a way out of this horrendous morass cannot emerge without an understanding of the structural nature of the violence that is bedevilling us, much of it unseen and appearing as natural and legitimate. Gender and sexual violence and the violence of the nation-state can reinforce each other as well as diverge. After all, along with Kathua, we are also seeing the horrific events of the Unnao rape unfold in which the survivor and the alleged perpetrator belong to the Hindu community. Therefore, the Kathua and Unnao rapes cannot be collapsed together as is happening in many responses.
Yet, this much is clear. Even an attempt to establish justice cannot emerge out of the present regime and the particular ghastly public conscience that it has mobilised. Every nation-state has its states of exception. But what makes the state of exception under the Modi regime distinct is that it is naked, open and propelled by a never-before-seen orgy of nationalism. Unlike in other regimes, it is not achieved by stealth and subterfuge.
That is why Farooq Dar, a Kashmiri Muslim, was tied to the front of an army jeep and paraded. That is why Pehlu Khan’s killers roam free, and supporters of Afrazul’s killer fly a saffron flag atop a district court. And that is why the national flag was draped over the killer of Akhlaq. Therefore, the lawyers of the Bar Association preventing filing of the chargesheet in the Kathua case is a natural and heinous culmination of this state of exception.
The response to the eight-year-old girl’s rape and death should leave no doubts about the fact that the present regime led by Narendra Modi has lost the moral right to govern. But the state of exception is such that it does not allow us to talk of morality and ethics.
Nissim Mannathukkaren is Chair, Department of International Development Studies, Dalhousie University, Canada. He tweets @nmannathukkaren.
A version of this article first appeared on The Polis Project.