Bhima Koregaon—Before the Law

In “Before the Law,” Franz Kafka portrays a countryman who can only be forever “before the law,” but never entering. “It is possible” to gain entry, says the doorkeeper, “but not at the moment.” The man gets old and is about to die—and only now does he understand that the gate was meant for him! “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

Kafka takes us to the interplay of surplus investment and lack in our relationship with the law, which propels a spiral of activity approximating a goal that perpetually recedes into the future. At the very least, Kafka suggests that the law into which the protagonist is seeking entry might not be what he thinks it is. Law is a self-referential bubble without concrete determinations of any kind. Jacques Derrida was right when he pointed out Kafka’s message: “To be invested with its categorical authority, the law must be without history, genesis or any possible derivation.”¹

This can remind us, as Evgeny Pashukanis shows, how Karl Marx held that under conditions of commodity exchange, social relations tend to take the form of juridical relations. The principle of equivalence in the “commodity form” is inseparable from the equivalence underlying “equality of all” before law in a democracy. Juridical relations are not really an abstraction from social relations, but the form of appearance of the social relations.²

Law’s categorical authority, combined with its abstraction, generates a lack-driven over-investment in the imagined future and freedom—futuristic freedom—homologous to the futuristic movements of capitalist accelerationism.³ Progressive-left politics is ensnared by this futurism, which is bent on the erasure of the past, which is considered to be by definition regressive. Let us not forget that futurism, as it first came through the pen of Filippo Tommaso Marinetti in Italy in the 1910s, subsequently influenced fascism, and not least the communist avant garde of the time. Against this futurism-fascism nexus, we can find the works of those like Walter Benjamin and Pier Paolo Pasolini.⁴

Bhima Koregaon is that rare sequence in Indian politics today that can challenge this much-vaunted futurism and reveal the true powers of being able to retroactively “change the past” in order to liberate the future, much in the manner of Marx’s historical materialism. Caste oppression as inseparable from the question of the past is imbricated in the modern spiral of surplus and lack enunciated by the law, sovereign violence, and the logic of capital. Bhima Koregaon is, in terms of its empirics, so loaded with historical memory and the legacy of caste oppression that the so-called progressive left would rather take cover in the past-erasing, rarefied realms of the futuristic non-world of the constitution and the rights and innate liberties it supposedly guarantees to all citizens. Before the law, any day!⁵

Look at the manner in which the Bhima Koregaon case is playing out between the state and activists. The prosecution is touting the conspiracy angle: that activists, in coordination with Maoists, were conspiring to overthrow the Indian state. The defense is in turn seeking to challenge this by invoking the constitutional rights and liberties (Articles 19 and 20) of the accused. The main line of defense is that there is no evidence to suggest that the activists were in any way involved in such a conspiracy. Those mounting the defense include activists, lawyers, and civil society dissenters, some of whom can be said to share strong affinities with those Catherine Liu, in a very potent expression, calls “virtue hoarders.”⁶

Sovereign violence and extra-judicial means—as, say, with the draconian Unlawful Activities Prevention Act—were mobilized for the Bhima Koregaon arrests.⁷ On the other “opposing” side, we have those who stand before the law, seeking justice for those arrested on the grounds of individual liberties. One uses straightforward state repression and extra-judicial violence; the other seeks redress through recourse to the liberties guaranteed by law.

Both positions mutually imbue law with that ahistorical and self-referential “categorical authority.” What we are confronted with is law which, in the words of Giorgio Agamben in his discussion of Kafka, “is in force without significance.” Agamben is discussing the contours of the “messianic task” today. He states: “He (the Messiah) must confront not simply a law that commands and forbids but a law that, like the original Torah, is in force without significance. But this is also the task with which we, who live in the state of exception that has become the rule, must reckon.”⁸

The defense challenges the sovereign “law that commands and forbids,” but does so through recourse to a law that “is in force without significance.”

Divine Violence

Justice Dhananjaya Chandrachud, in his September 2018 dissenting opinion at the Indian Supreme Court, summons this categorical legal authority (in terms of constitutional rights and liberties) to strengthen his defense of the activists against the repressive state.⁹ Clearly, it comes at the cost of dispensing with “history, genesis, or any possible derivation”—in this case, with the social relations and unfolding political struggle and resistance in Gadchiroli and central India. The honorable Justice forgets that, for colonialism—as well as the recent attempts at so-called primitive accumulation that displace and do violence against Indigenous inhabitants, or Adivasis—“an ounce of jurisdiction is worth more than a pound of gold.”¹⁰

It might be relevant to recall B. R. Ambedkar, India’s foremost man of law. Some kind of inner wisdom about the law must have moved Ambedkar to shift from the legal-constitutional register to that of the symbolic, even religious, when he would later in life convert to the New Way of Buddhism (Navayana) and show the path for the liberation of the Dalits from caste domination.¹¹ And yet how much more easily one tends to remember Ambedkar solely as the man holding the law book in a professional attire, rather than the socially embedded revolutionary monk in robes. Such are the effects of the fetishistic powers of the law and its grip on popular culture and social movements.

I am, of course, not suggesting that the law and liberties are a mere fiction; some kind of an illusory veil or imaginary chimera—far from it. Social or economic relations cannot be accessed directly, but are always refracted by the law. Slavoj Žižek puts it concisely: “The ultimate secret of [Kafka’s] Law is that it does not exist.… This nonexistence, of course, does not simply reduce the Law to an empty imaginary chimera; rather, it makes it into an impossible Real, a void which nonetheless functions, exerts influence, causes effects, curves the symbolic space.”¹²

This point is well taken. My own, however, is that at some point the resistance and the transformed social relations in Gadchiroli—and indeed, in central India as a whole—could become a rising tide that lifts all boats. That is, the struggle for constitutional liberties derives strength and power from the advances made by the political resistance. Here is, if you like, an “impossible Real” (what in Lacanian psychoanalysis we would call the “eruption of the Real”), which “exerts influence, causes effects, curves the symbolic space”; but this time, it is against the constituted power of the law.

With this resistance movement, we have a scenario where the non-law that founds the law—what Benjamin would call “mythic violence”—can be counterposed to divine (revolutionary) violence. Benjamin’s divine violence neither posits nor preserves the law: “If the existence of violence outside the law, as pure immediate violence, is assured, this furnishes the proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible and by what means.” Such revolutionary violence will open the world to new forms, marking the beginning of a new epoch: “Once again all the eternal forms are open to pure divine violence, which myth [had] bastardised with law.”¹³

Without the “unalloyed violence” of the Maoist movement, the Adivasis (original inhabitants) would have been by now wiped out or depopulated from large parts of central India. Nowhere is this acknowledged, as the Maoist movement is treated as fictional, grossly illegal, or too extreme—a bogey of the repressive state.¹⁴ And yet it silently labors to lift the boat for everyone, including liberals and the democratic rights movement. Here was a way for Justice Chandrachud to strengthen the legal defense of the Bhima Koregaon Sixteen.

Indeed, the first batch of arrests in June 2018 was most directly connected to the struggle for resistance against iron-ore mining in Gadchiroli. The forces of state and capital sought to protect the supply chains of the mining companies. Later rounds of arrests, however, are at some remove from this resistance. Lawyer Susan Abraham rightly opined that the second round of arrests took place as a response to activists organizing a press conference in Delhi and speaking out openly against the first round of arrests.¹⁵

Subsequently, later batches of arrests and raids would increasingly play out as part of the suppression of a generic “right to dissent” by a right-wing authoritarian government. Now, it suited precisely this government to present the arrests in this manner, rather than as the suppression of resistance challenging the violent accumulation of capital in Adivasi areas. The reality of anti-mining resistance by Adivasis got retroactively shoved from view, as the focus is now on “the right to dissent” of supposedly elite left activists. Most unfortunate was the petulant and short-sighted petition in the Supreme Court by Romila Thapar and others in August 2018, which repeated the most hackneyed left-liberal talking points on “anti-authoritarianism.”

This smothered the possibility of any real mass support or mobilization, even among the Dalit masses, in support of those arrested. If not the other defendants, anti-caste activists like Anand Teltumbde or Hany Babu, at least may have gotten mass Dalit support, and indeed mass militant action for their release. No wonder, then, that if you look at the release campaign for Babu, you will find an attempt to maintain a distance from the typical left-liberal framework.

Lower Courts

We must also revisit the understanding among defense and activist lawyers that leads them to pin their hopes on higher courts like the Supreme Court, which directly take up the constitutional liberties of individuals based on the eternal principles of natural justice. The so-called lower courts, sessions courts, are assumed to be under the thumb of repressive police officers, local mafia, and capitalist henchmen—but this is precisely the zone where the social determinations, the non-law which produces the law, the actual supply chains of capital accumulation, are fully operational.

Justice is in better supply not in the suburbs and small towns or close to the mining forests of Gadchiroli, but in the rarefied metropolitan areas and the capital city where the Constitution’s ideas of law and morality seem to work relatively well. But does this justice really change things on the ground?

We saw the Supreme Court’s very progressive and enlightened judgment in 2011, which described the areas of anti-capitalist resistance in central India as similar to Joseph Conrad’s “heart of darkness” during the Nandini Sundar versus the State of Chhattisgarh case. Were those areas finally illuminated by the court’s directives, and justice delivered? Or did the darkness eventually engulf the Supreme Court itself?

Sundar tells us that powerful “local” authorities happily ignored the Supreme Court’s directives. “The ease with which the Chhattisgarh government has ignored the Supreme Court’s orders on banning the use of SPOs is a glaring example,” she writes. SPO is the acronym for the Special Police Officers, state-sponsored vigilantes comprising mostly local Adivasi men, but always controlled by non-Adivasis. There are, of course, some brave souls among lawyers (Surendra Gadling, for one, who is now in jail), who fought it out in the wilderness of the local police-mafia networks and local courts.¹⁶

I am reminded of a passage from Fredric Jameson’s review of Raymond Chandler’s novel, The Big Sleep:

the action of Chandler’s books takes place inside the microcosm, in the darkness of a local world without the benefit of the federal Constitution, as in a world without God.… It is only because we are used to thinking of the nation as a whole in terms of justice that we are struck by these images of people caught in the power of a local county authority as absolutely as though they were in a foreign country. The local power apparatus is beyond appeal, in this other face of federalism; the rule of naked force and money is complete and undisguised by any embellishments of theory.¹⁷

Jameson gently chides those in “the habit of thinking of the nation as a whole in terms of justice,” who are then shocked to discover that “the local power apparatus is beyond appeal.”

What happened in the Bhima Koregaon case is something more. For what if the darkness moves beyond localized areas and into the charmed metropolitan centers? Indeed, now the local power apparatus finally finds its way to the top such that, even at the level of the Supreme Court or the national government, things have changed. Local police officers accused of serious crimes are now in key positions in central agencies like the National Intelligence Agency. Ankit Garg, accused of horrendous sexual violence against Soni Sori, occupied a top position within the National Intelligence Agency. The same is true of the police officers who arrested and intimated G. N. Saibaba. Some of the activists arrested in the Bhima Koregaon case are those whom these “local” officers have been targeting since at least 2009, if not before.

The Bhima Koregaon arrests can therefore also be understood in terms of an extension of a localized class struggle that extends beyond localities, where the mafioso police state is now officially protected and defended by those at the highest levels of the government—and not just by the government of the day, but by the political class as a whole, as this was true before Narendra Modi’s government came to power in 2014. What was earlier only a security operation arresting and targeting activists is now, under the Modi government, the official ideological stance of the ruling party, to be carried out as a public spectacle. Much of the state’s extra-judicial violence will now be openly proclaimed as an achievement of the government and a step towards a putative “Hindu nation” by decimating the “enemies within.”

Bobby Seale and Stan Swamy

In contrast to the jaded left-progressive responses, a shining light emerged in the person of Father Stan Swamy, who seemed to open up a new register. Father Stan stood out among his arrested comrades—and not only because his death in prison shook the nation.

With ease and great composure, he sought to take us beyond the categorical authority of the law, but without really exiting the domain of law. He challenged the “law that commands and forbids,” but without recoiling into the law that “is in force without significance,” thus challenging the moral authority of sovereign violence while inaugurating a register outside of the law and constitutional liberties. Kafka’s countryman has evolved!

Swamy reminds one of Black Panther Party leader Bobby Seale during his 1969 trial in the United States, as featured in the movie, The Trial of the Chicago 7 (2020). Without a lawyer—unlike the others facing trial—Seale stood out. Bound and gagged in the courtroom, his very presence corporeally exposed the extralegal dimension and the “legal violence” of the court system as a whole. In being an exception, the extralegal dimension of law was rendered visible. In this way, Seale could truly reveal the state of exception that has become unexceptional, normal. These operations outside of the law, this resistance, did not weaken the legal case of those on trial who were standing before the law, but strengthened it immensely. The extra-judicial resistance, the exception, is crucial to change the terms on which the legal battle is fought.

Father Stan chose not to send news about inhuman living conditions inside the jail, or how the repressive jail authorities violated his dignity as an individual. He preferred to say something else. In a letter from November 2020, he reports that “despite all odds, humanity is bubbling in Taloja [jail].”

Here is one of his poems, written from Taloja jail in December 2020:

Prison life, a great leveler

Inside the daunting prison gates
All belongings taken away
But for the bare essentials

“You” comes first
“I” comes after
“We” is the air one breathes

Nothing is mine
Nothing is yours
Everything is ours

No leftover food thrown away
All shared with the birds of the air
They fly in, have their fill and happily fly out

Sorry to see so many young faces
Asked them: “Why are you here?”
They told it all, not mincing words

From each as per capacity
To each as per need
Is what socialism all about

Lo, this commonality is wrought by compulsion
If only all humans would embrace it freely and willingly
All would truly become children of Mother Earth.¹⁸

We know so much prison poetry that speaks (sometimes in a clichéd manner) of freedom, often invoking the stars in the night sky. Swamy is different. His focus is not the star in the sky nor the bird flying high in gay abandon, but something as mundane as leftover food thrown away. The “birds of the air” are not flying high in the sky. They are already down here, sharing in the “leftover food thrown away,” in the life lived in prison. And when he asks “the many young faces” in jail, “Why are you here?,” they are already lifted up, as they then “told it all, not mincing words.”

Swamy invokes the spirit of commonality in the prosaic life of the incarcerated, even though it “is wrought by compulsion.” Far from focusing on his personal pain or the horrors of being imprisoned under a draconian law or denouncing the authoritarianism of the ruling party, he addresses “all humans [who] would embrace [this commonality] freely and willingly.” No flights of freedom, but prison life lived in commonality, in the here and now. Not freedom, but an actual life, lived and shared, a form of life.

Swamy was not shrill about his sense of hurt or injury. He did not throw himself down upon the law, looking to ameliorate his condition using the given framework, but opened up another register, another dimension, as though the fetters of draconian laws were powerless and redundant. In spite of the massive state repression they were unleashing, the powers that be instantly looked puny and small in front of Swamy, as though they did not really matter in the larger scheme of things. His death had an astonishing impact, with High Court judges publicly praising him.

We find echoes here of a similar register traversed by those arrested in the Parvatipuram Naxalite conspiracy case of the 1970s in India. In the court hearings, the accused defended themselves without lawyers, turning the court hearing into a platform to proclaim their political objectives loud and clear, imagining alternative possibilities. In June 1973, K. Satyamurthy recited his poem, “The ‘Conspirator’ Testifies,” in court, turning around the very meaning of conspiracy. “Can the Sun be called the conspirator of life on earth?” Satyamurthy asked in his poem addressed to “Your Lordships.” Kalpana Kannabiran writes that Satyamurthy “challeng[ed] the legal definition of the crime of conspiracy itself, recasting it to speak to the conspiracies of those in power.”¹⁹

The specific political subjectivity of Swamy and Seale forces us to think beyond the limits imposed by constituted power and positive law. But what about the political subjectivity of the Maoist/Naxalite leaders involved in the political resistance in India? Their subjectivity is marked by their revolutionary self-destitution, a separation (not alienation) from all constituted power in such a way that they have nothing upon which to rest, actively refusing to mobilize any element of constituted power or constitutional rights, producing the space within which resistance and a new political revolutionary power might emerge. Elsewhere, I have dwelled on the theme of revolutionary self-destitution with regard to the political subjectivity of Charu Majumdar and Saroj Dutta.²⁰

Unpacking “Progressive Politics”

First and foremost, the yearly congregation at Koregaon by the Bhima River is the commemoration of the 1818 Battle of Koregaon, when lower castes won a victory against Brahmin rulers, thus making it a symbol of Dalit resistance against the Brahminical order.

Bhima Koregaon forces us to revisit the question of caste-based historical oppression from within the present. It beckons us to reject the capitalist accelerationist-futurist “progressive politics” of much of the left, and takes us closer to the class struggle of Marx. As Benjamin reminds us in his “Theses on the Philosophy of History,” the social democrats treated the working class as “the redeemer of future generations” and in that process, weakened it, “cutting the sinews of its greatest strength.” Hence, the class struggle should be “nourished by the image of enslaved ancestors rather than that of liberated grandchildren.”²¹

Bhima Koregaon opens up all of the possibilities, registers, and instances that imply a rejection of left-progressive politics today just as Benjamin criticized the social democracy of his time, which got carried away in the fascist-futurist wave of the 1930s in Germany. In reverse, therefore, the Bhima Koregaon moment in Indian politics is an extremely fertile moment, clarifying Benjamin’s “messianic task” today.

With Bhima Koregaon, the left has serendipitously struck gold, but they are magnificently squandering it. The supine habit of self-righteous compromise and the dilution of convictions out of derived—not even firsthand—guilt have made the left seek refuge in law, rather than confront the density of the social and the historical.

This is not the occasion to narrow down the political contest to the defense of the legalistic and futuristic documents of law and the constitution, often repeated in the hackneyed call to defend the “democratic idea of India.”²² So-called anti-authoritarian attempts to impeach a Donald Trump or a Modi after their electoral victories through legal or constitutional provisions need not be ruled out forever, but cannot be substituted for the political task of social transformation; such attempts then appear as nothing but a turf war of one group of dislodged elites against another newly ascendant one of, say, Wall Street capitalism against oligarchic capitalism, or of “pseudo-secularists” against “Hindutva fascists.”

In India, this anti-authoritarianism has taken the form of opposing the suppression of free speech and the right to dissent. It frames the Bhima Koregaon case in such a way that in the name of anti-authoritarianism, liberty, and freedom, the resistance movement by Adivasis against capitalism will be sacrificed and diluted.

The “progressive” in “progressive politics” needs serious unpacking. If progressivism is nothing but the default futuristic mode of capital, where capitalist accelerationism and the imperialism of Joe Biden are packaged as anti-authoritarian, then you can be assured that progressive left politics is moving in circles. Virtue-signaling outrage, even in the garb of anti-fascism, changes nothing. Think of Jeff Bezos supposedly supporting Black Lives Matter, or Silicon Valley CEOs claiming to oppose Trump’s authoritarianism, and you cannot help but cringe!

Meanwhile, the yearly congregation in Koregaon continues to take place, regardless of authoritarian repression and away from the glare of big media and radical activists. The nonchalant steadiness and expansive confidence of the community congregation functioning over a longer time scale—straddling the past, present, and future—might prove impervious to the “futuristic” initiatives that flow on the surface, in historical time. Bhima Koregaon, in encompassing different temporal and spatial registers of resistance, is as much of a challenge as an opportunity for revolutionary forces today. It is not just the standard promise of the liberatory potential of the future, but the emancipatory energies of “changing the past.”

Notes

1. ↩ Jacques Derrida, “Before the Law,” in Acts of Literature (New York: Routledge, 1992), 191.
2. ↩ Pashukanis contributed immensely to this question of Marxism and law. For further discussion, see Saroj Giri, “The Bhima Koregaon Arrests and the Resistance in India,” Monthly Review 73, no. 11 (April 2022): 38–55.
3. ↩ The latest in this futurism seems to be the “effective altruism” of tech billionaires, whose new poster boy is William MacAskill, a pet of Bill Gates and Elon Musk. See his latest book, What We Owe the Future (New York: Basic, 2022).
4. ↩ Pasolini’s film Teorema (1968), for example, shows how the de-structuring of society and challenges to traditional order—supposedly toward a new future society—leads to breakdown and crisis within individuals, which allows capital to expand its colonization of all modes of life.
5. ↩ See Giri, “The Bhima Koregaon Arrests and the Resistance in India” for the details of the case, as well as Saroj Giri, “Bhima Koregaon and the ‘Powers of the Other Shore,’ ” Monthly Review 73, no. 5 (October 2021): 18–28.
6. ↩ Catherine Liu, Virtue Hoarders: The Case Against the Professional Managerial Class (Minneapolis: University of Minnesota Press, 2020).
7. ↩ This refers to the sixteen activists arrested between 2018 and 2020 on charges of conspiracy and plotting against the nation-state.
8. ↩ Giorgio Agamben, Potentialities: Collected Essays in Philosophy (Stanford: Stanford University Press, 1999), 171.
9. ↩ Justice Chandrachud’s dissenting opinion (September 2018).
10. ↩ This was the motto of a fifteenth-century jurist from Visé, a town at the crossroads of Flanders and Wallonia, as quoted in Maïa Pal, Jurisdictional Accumulation (Cambridge: Cambridge University Press, 2020).
11. ↩ R. Ambedkar and Ajay Verna, The Buddha and his Dhamma (Delhi: Gyan, 2017).
12. ↩ Slavoj Žižek, The Parallax View, (Cambridge, MA: MIT Press, 2006), 39.
13. ↩ Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writings, ed. Peter Demetz (New York: Schoken, 1986), 300.
14. ↩ On the state of the democratic left movement, see Saroj Giri, “The Maoist ‘Problem’ and the Democratic Left in India,” Journal of Contemporary Asia 39, no. 3 (2009).
15. ↩ In a video interview with the Leaflet, Abraham said that “whoever challenged [the first round of arrests] have found their names in the next round of arrests.” (September 12, 2018, available at com/watch?v=VzIKKKQWn_Y).
16. ↩ Nandini Sundar, “Hostages to Democracy,” Verso blog, May 30, 2018.
17. ↩ Fredric Jameson, Raymond Chandler: The Detections of Totality (London: Verso, 2016), 10.
18. ↩ Father Stan Swamy, “Prison Life, a great leveler,” quoted in Irudhaya Jothi, “Prison Life, a great leveler: Stan Swamy’s Poem,” Matters India, December 22, 2020.
19. ↩ Kalpana Kannabiran, “The Struggle Is Its Own Reward,” India Seminar 721 (2019).
20. ↩ See Saroj Giri, “From the October Revolution to the Naxalbari Movement: Understanding Political Subjectivity,” in K. Murali (Ajith), Of Concepts and Methods: ‘On Postisms’ and Other Essays (Paris: Foreign Language Press, 2020).
21. ↩ Walter Benjamin, “Theses on the Philosophy of History” in Illuminations, trans. Harry Zohn (New York: Schoken, 1968).
22. ↩ See Saroj Giri, “The Idea of a Democratic Idea,” Economic and Political Weekly 48, no. 29 (2013): 37–40.