Judicial Complicity with Communal Violence in India

Northwestern Journal of International Law & Business Volume 17 Issue 1 Winter Fall 1996 Judicial Complicity with Communal Violence in India Sara Ahmad Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njilb Part of the International Law Commons Recommended Citation Sara Ahmad, Judicial Complicity with Communal Violence in India, 17 Nw. J. Int'l L. & Bus. 320 (1996-1997) This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons. Judicial Complicity with Communal Violence in India Sara Ahmad INTRODUCTION Communal violence - or violence between groups which define themselves by their differences from each other' - is one of the foremost human rights problems today.2 But the violence of the past 20 years differs from that of previous decades. Responsibility for current sectarian violence lies not with specific extremist groups but with governments which leverage inter-group hatred to gain power.3 Such systemic sources of communal violence threaten basic principles of democratic government and non-discrimination.4 5 Present-day communal violence originates in identity politics. Identity politics stress the group nature of rights, experience and identity, whether based on race, sex, caste, class, language, religion or national or regional origin. 6 In many cases, the political-cultural I HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND HUMAN RIGHTS vii(1995). 2 i. 3 Id. at vii-viii. 4 See id. 5 Id. at x. 6 See Valentine M. Moghadam, Preface to IDErrY PoLmcs & WOMEN: CULTURAL REASSERTIONS AND FEMINISMS IN INTERNATIONAL PERSPECrrVE ix, ix (Valentine M. Moghadam ed., 1994) ("identity politics" refers to discourses and movements organized around questions of religious, ethnic, and national identity); see also Vincent Cable, The DiminishedNation-State:A Study in the Loss of Economic Power. What Futurefor the State?, DAEDALUS, Spring, 1995, at 23, 44-45; Leonard Stem, Cultural Collision:Why the Jewish-Black Alliance Has Come Apart at the Seams, THE OTTAWA CrrIzEN, Jan. 22, 1995, at B1. Stem characterizes the operative assumption of identity politics as the assumption that a specific trait has some essentialist value. Id. Judicial Complicity with Communal Violence 17:320 (1996) movements which engage in identity politics seek fundamental juridical changes, political power and, sometimes, cultural hegemony.7 Minority and women's rights advocates embrace identity politics because it has increased awareness of the legitimacy and unique experience of different groups such as women or Asian-Americans. 8 In contrast, however, the sectarian strife that has repeatedly torn India, Ireland, Sri Lanka and Pakistan illustrates its potential dangers. The experience of these countries demonstrates that identity politics not only fragments groups but also may render them "autistic." 9 The rhetoric of identity politics allows groups to enclose themselves in their own myths of self-righteous victimhood so that they cannot hear or learn from anyone other than themselves. 10 By over-valuing their own identity, group members distort the identity of non-group members" and lose recognition of the common public interest which they share with those non-group members. 12 This perceived lack of common ground undermines civic values, frustrates dialogue and facilitates inter-group hostility. Such hostility manifests itself in communal 3 violence.' Governments engage in identity politics when they (1) claim the existence of a national monolithic identity; (2) use that identity as a rationale for judicial decisions against persons who do not share that identity; (3) excuse harassment of targeted communities; (4) fail to prosecute perpetrators of communal crimes; or (5) promote or direct violence against non-majority or non-member communities.' 4 These actions incite communal thinking and sectarian violence. In India, government officials and political parties have engaged in identity politics, with disastrous consequences for majority and mi7 Moghadam, supra note 6, at ix. Moghadam distinguishes such movements from the movements of identity politics that are more expressive than political, and which represent the abandonment of the secular for the spiritual. For a more detailed discussion, see id. 8 See generally Bill Ong Hing, Beyond The Rhetoric ofAssimilation and CulturalPluralism: Addressing the Tension of Separatism and Conflict in an Immigration-DrivenMultiracialSociety, 81 CALrF. L. REv. 863, 900 (1993); see also Catherine A. MacKinnon, From Practice to Theory, Or What Is a White Woman Anyway?, 4 YALE J.L. & FEMInSM 13, 20-22 (1991). 9 See Michael Ignatieff, Nationalismand the Narcissism of Minor Differences,Ti OITAWA CrrzEN, July 2, 1995, at C1. 10 See id. 11 See id. 12 Cf.Vincent Cable, Insidersand Outsiders;PoliticiansMust Learn to Satisfy Our Searchfor Belonging, says Vincent Cable, TmE INDEPENDENT (London), Jan. 23, 1994, at 19; Stem, supra note 6. 13 See HumAN RIGHTS WATcH, supra note 1, at vii. 14 See id. at xv-xvi. Northwestern Journal of International Law & Business 17:320 (1996) nority communities alike.' 5 These groups have used identity politics to promote separatist and exclusionary agendas which condone violence against non-group members. 16 This form of communalism has made it extremely difficult for Indians today to relate to each other as Indians.' 7 Despite the active role the Indian judiciary has played in the struggle to end communal violence and related crimes,' s several recent court decisions evince the influence of identity politics on judicial thinking. These decisions undermine both the judiciary's independence and its commitment to the civil liberties of majority and minority communities. The communal thinking in these decisions has taken several forms. First, courts have fueled communal sentiment by holding certain religious practices of minorities "un-Indian," and thus unconstitutional. 19 These courts define the Indian identity in monolithic terms or in terms of the culture of the Hindu majority,20 and, therefore, implicitly grant less than full rights and recognition to persons of "unIndian" (i.e., non-Hindu) communities. 2 ' In addition, they reinforce stereotypical notions of membership in majority and minority communities and destroy awareness of the multiple identities Indians have as political, social and religious actors. Second, some courts have adjudicated claims implicating the relationship between secular law and religious law in favor of secular law, not out of concern for minorities 22 under their religious law but in the interest of national integration. The perceived threat that national integration represents to the way of 15 See generally id. at 18- (...truncated)