In 2022, one has to be exceptionally out of touch not to have taken note of the dramatic democratic backsliding that has taken place in India under the eight-year long rule of Narendra Modi and the right-wing Hindu nationalist Bharatiya Janata Party (BJP). This is reflected in India’s downgrading on several international democracy indexes in recent years, as a result of how the Modi regime has restricted basic civil and political rights, such as free speech and civil society activism. Moreover, minority rights – more specifically, the rights of India’s Muslim minority – have been eroded by the murderous violence of Hindu nationalist vigilante groups. And, crucially, since Modi was won a second term in power in 2019, Hindu nationalism – an ideology grounded in the foundational claim that India should be a Hindu nation – has come to be enshrined in law, effectively relegating Indian Muslims to second-class citizenship. This perilous conjuncture surely compels a critical rethinking of the political economy of India’s political order.
In a recent article in Comparative Studies of South Asia, Africa and the Middle East, Kenneth Bo Nielsen, Anand Vaidya and I do precisely this by theorising the relationship among law, social movements, and state formation in the longue durée of Indian democracy. Conceiving of Indian democracy as a political order that has emerged out of and been shaped by an ongoing passive revolution, we focus on the making and unmaking of compromise equilibriums between dominant and subaltern social forces in state-society relations in and through law and legal formations across three conjunctures in modern Indian history: firstly, the struggle for and transition to independence, from 1920 to 1950: secondly, the long unravelling of the Nehruvian state, from the late 1960s through to the 1980s; thirdly, the period from the early 1990s to the present, animated by the rise of Dalit and lower-caste parties, of India’s economy, and the rise of Hindu nationalism as a hegemonic force in Indian politics and society. Situating these conjunctures within a century-long period, we argue that social movements and the state have constituted each other across this longue durée, and that this co-constitution has been both mediated by and inscribed in law.
We begin our analysis by developing a Gramscian perspective on the workings of the law in relation to social movements and state formation in modern India. Gramsci, of course, did not write very much about the law per se, but it is nevertheless possible to gain some critical insights about law as a terrain on which movements interact with state-making project from his texts. Above all, perhaps, Gramsci was keenly aware that law had not only coercive but also ideological effects on the organisation of civil society. It follows from this that law and lawmaking should be approached as integral dimensions of the formation, supersession, and transformation of the unstable equilibriums of compromise between social groups that undergird and sustain hegemony.
In our article, we survey how this dynamic has played out in the Indian context, where social movements from below have shaped the meanings of law and law, in turn, has codified power relations between dominant and subaltern groups. The law, we argue, has simultaneously made concessions to and contained the collective action of subaltern movements. For example, legal activism proliferated in India after the Emergency – a period from 1975 to 1977, during which Indira Gandhi of the Congress Party suspended civil liberties and cancelled elections in response to social unrest. Social movements actively used Public Interest Litigation (PIL) to carve out and expand new domains of mobilisation, structured around the language and imaginaries of law. Similarly, Dalit and lower-caste political parties have championed laws around affirmative action, but this has failed to substantially redistribute opportunities and resources in Indian society.
In a nutshell, law establishes a hegemonic equilibrium by defining the legal boundaries of relations between dominant and subaltern groups and the limits of what is politically permissible. However, this equilibrium is unstable precisely because the interpretation of laws and the boundary of these relations are subject to contestation from below.