Violence in the name of law

The government is increasingly devolving its authority over force, legitimising mob violence by non-state actors

India has let go of the cardinal principle of modern governments by allowing — some would say encouraging — mob violence. Max Weber defined the State as a human community that successfully claims the monopoly of the legitimate use of physical force within a given territory. Only the State, meaning the government, was authorised to use violence and it would punish the use of violence by citizens. This is why murder, rape and assault are crimes against the State.

In allowing organised groups to take over this authority from the State, the Indian State has devolved its monopoly over force. Examples of this abound and are all around us today.

In Gurugram, migrant workers with no access to local mosques are harassed when praying in designated areas. The State, after the harassment, cancels the permissions to pray. In Gujarat, a crowd can intimidate hotel owners because they are Muslim. The Gujarat Bharatiya Janata Party (BJP) chief said his party had nothing to do with the “ban” on those vending eggs and meat on the street, but the carts were confiscated nonetheless. In court, the municipal corporation said the confiscations were unrelated to the issue of what Indians call “non-veg” food.

Christians, having lost their right to propagate long ago — the right to propagate is both a criminal offence and a fundamental right in India — now face attacks across India seeking to prevent their right to worship.

The United Christian Forum said 2021 was the “most violent year” faced by Christians in India. A People’s Union for Civil Liberties report (which I helped write) released last month recorded 39 emblematic attacks on Christians in Karnataka and noted that in almost all the cases the perpetrators were Hindutva groups with whom the police colluded. The number of recorded attacks on Christians and their places of worship went up from 127 in 2014 to 142 in 2015, 226 in 2016, 248 in 2017, 292 in 2018, 328 in 2019, 279 in 2020 and 486 in 2021. The Union Christian Association lamented the “failure of the police to investigate and prosecute mobs”.

Illustration: Binay Sinha

It should be noted that though anti-conversion laws exist since 1967, not a single person has ever been convicted of “forced conversion” in India. And yet six BJP states (Karnataka being the latest and the first in the South) have legislated laws against this fiction of “forced conversion” since 2018. But the laws are quite deliberate and meant to catalyse strife in the public space while the State stands aside.

Last year, Karnataka became the 10th state to legislate a cow slaughter law that empowers vigilante violence. The law says that vigilantes who act in “good faith” are protected. After the law was passed, the BJP government said that criminal cases against vigilantes from the past would also be withdrawn.

The State’s encouragement of the devolution of its authority and legitimacy can be seen elsewhere. When the Delhi High Court instructed the police to file FIRs against two leaders (one a Union minister) accused of instigating the violence of the Delhi riots of 2020, the judge was transferred out the same night. The FIRs remain unfiled. An attack on students of Jawaharlal Nehru University that year also went without arrests, though the perpetrators and their leader stood identified. The events of recent days, when Muslim women have been targeted for online sexual abuse with little or no action from the Union government is of a piece with this trend. This is meant to encourage and has encouraged individuals and groups who want to attack India’s minorities.

This change and devolution have not been noted internally because our political debate is primitive. However, the external world has recorded the transformation. Eight indices have downgraded India on the criterion of weakening rule of law and empowerment of groups associated with the governing political party.

These include conservative organisations such as the Cato Institute that downgraded India’s ranking on its Human Freedom Index from 75 in 2015 to 111 in 2020 and then 119 in 2021. The rankings come with a two-year lag and India will likely be further punished for the events of 2020 and 2021. The World Justice Project’s Rule of Law Index downgraded India from 66th place in 2014 to 79th in 2021. On “order and security” India was ranked 121st out of 139 nations surveyed.

On the Bertelsmann Stiftung Transformation Index, India fell from 26th rank in 2015 to 34th in 2020 (again the data comes with a lag). The institute noted that “the most problematic development is the growing influence of hardline Hindu-nationalist groups”. On the Fund for Peace Fragile States Index (formerly known as the Failed States Index), India has fallen 15 places since 2014, moving away from the Nordic states and towards failed states like Yemen and Somalia.

Pew’s Religious Restrictions survey found that India was in the top 10 countries with “high levels of religious violence by organised groups” and in the top 10 countries with “high levels of individual and social group harassment”. The reports downgrading India from the Economist Intelligence Unit, Freedom House and the V-Dem institute have already been discussed in our media (and dismissed by the government).

It could be argued that what we are discussing here has always been the case in India and that those who encouraged and participated in the pulling down of a mosque went on to hold high office and were never punished. However, it appears to be the case also that the deliberate direction taken by the State under this prime minister is novel.

A functional justice system might mitigate against a State that is intent on devolving its authority but this is difficult in India. Most recently, our Supreme Court has had to plead with the government to come clean on the charge of spying on the opposition and survivors of sexual harassment directly linked to the court. The government ignored the plea and a committee has been set up, which has referred the issue back to the victims rather than the State.

The rule of law is not fragmented and can either exist or not. Either the State seeks to enforce it or it does not. Seeking to enforce it in part does not work and is not working in India.

The writer is chair of Amnesty International India