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 SIRCAR 2
‘Violent Modernities is an expression of love as a brawl with
law for space—the space to invoke, listen to, and perform law

VIOLENT MODERNITIES
differently—in a quest marked by grace and daring.’
– Vasuki Nesiah, professor, New York University, USA
(from the foreword)

Law and violence are thought to share an antithetical relationship

in postcolonial modernity. Violence is considered the other of
law, lawlessness is understood to produce violence, and law is
invoked and deployed to undo the violence of lawlessness. Violent
Modernities uses a critical legal perspective to show that law
and violence in the New India share a deep intimacy, where one
OISHIK SIRCAR
symbiotically feeds the other. Researched and written between
2008 and 2018, the chapters study the cultural sites of literature,
cinema, people’s movements, popular media, and the university to
illustrate how law’s promises of emancipation and performances
of violence live a life of entangled contradictions. The book
foregrounds reparative and ethical accounts where law does not
only inhabit courtrooms, legislations, and judgments, but also lives
in the quotidian and minor practices of disobediences, uncertainties,
vulnerabilities, double binds, and failures. When the lives of law are
reimagined as such, the book argues, the violence at the foundations
of modern law in the postcolony begins to unravel.

Oishik Sircar is associate professor, Jindal Global Law School,

Sonepat, India.

Cover photo: Oishik Sircar

Cover design: Siddhartha Dutta

ISBN 0-19-012792-9
9780190992149

1 eBook
available Cultural Lives of Law in the New India
9 780190 127923
www.oup.com
₹ 1595
Violent Modernities
 Violent Modernities
Cultural Lives of Law in the New India

Oishik Sircar

1
 1
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trademark of
Oxford University Press in the UK and in certain other countries.

Published in India by
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©Oxford University Press 2021

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First Edition published in 2021

All rights reserved. No part of this publication may be reproduced, stored in

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ISBN-13 (print edition): 978-0-19-012792-3

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Printed in India by Rakmo Press Pvt. Ltd.
 For D,
fierce and tender
That life is complicated is a fact of great analytic importance. Law too
often seeks to avoid this truth by making up its own breed of nar-
rower, simpler, but hypnotically powerful rhetorical truths.
—Patricia J. Williams, The Alchemy of Race and Rights:
Diary of a Law Professor (1992)

It has long been my belief that law is the most disabling or estranged
of professions. Such at least is its most radical danger: it inculcates a
fear which finds its most prominent expression in the closure of the
legal mind, in the lawyers’ belief in a norm or rule which speaks as
‘the law’.
—Peter Goodrich, Law in the Courts of Love: Literature and
Other Minor Jurisprudences (1996)

Go back to uni, study the law. Accept the law, even when it’s unjust.
—Kamila Shamsie, Home Fire (2017)
Contents

List of Figures ix
Foreword xi
Acknowledgements xvii
Preface xxiii
List of Abbreviations xli

PART 1: … the Theoretical…

1. Spectacles of Emancipation: Reading Rights
Differently 3
2. Beyond Compassion: Children of Sex Workers and
the Politics of Suffering (with Debolina Dutta) 53
3. Bollywood’s Law: Cinema, Justice, and Collective
Memory 98
4. New Queer Politics: Notes on Failure and Stuckness
in a Negative Moment 144

Part II: … is Personal…

5. The Silence of Gulberg: Refracted Memories,
Inadequate Images 189
viii Contents

6. Professor of Pathos: Upendra Baxi’s Minor

Jurisprudence 210
7. The Conduct of Critique: Jurisdictional Account
of a Feminist Journey 232

Consolidated Bibliography 254

Index 302
About the Author
Figures

5.1 The entrance to Gulberg Society 199

5.2 Police sampatty (property) 200
5.3 A posteriori scenes of violence 1 201
5.4 A posteriori scenes of violence 2 202
5.5 Silence and foliage 203
5.6 A map with no numbers 204
5.7 ‘There is no final photograph’ 205
Foreword

Hanif Kureishi’s short story, ‘My Son the Fanatic’, tells the story of a
Pakistani immigrant, Parvez, and his son, Ali. Parvez invests decades
in his work as a taxi driver to create a life sustained by ambitions and
hopes for his son’s modern British future—marked for him by the
twinned ethe of tolerance and assimilation. Imagine how unnerved
he is then when he finds that as he grows up, Ali pivots towards
orthodox Islam: Turning from his accountancy exam to mosque
devotions, rejecting his cricket bat for a prayer mat, dismissing his
father’s celebration of secular moral tolerance for an authoritative
ethical compass, turning from material rewards to religious discipline,
rejecting the promise of assimilation into ‘modernity’ for the promise
of spiritual fulfilment in the afterlife, deriding his father’s debts to
white Britain, to instead embrace visions of worlding beyond those
of the West. Parvez, the mild-mannered tolerant liberal, becomes
incensed at his son’s rejection of those very promises of modernity
that provided scaffolding for his immigrant dream. He beats up his
son till Ali is on the floor, kicked, punched, and virtually insensible.
Through bloodied lips, Ali has the final word: ‘So who is the fanatic
now?’
The imbrications of the discourses and institutions of modernity
and violence have been pivotal to colonial and post-colonial histories.
This imbrication is a central dimension of our current moment from
xii Foreword

the domestic and micro-political (such as in Kureishi’s short story),

to the global and macro-political (consider the war in Afghanistan).
Oishik Sircar’s remarkable book illuminates these tangles of moder-
nity and violence with sophistication, originality, and insight. Violent
Modernities is anchored in contemporary India and that historical
context is central to the political struggles Oishik is invested in, and
the analytical arguments he advances. Indeed, vigilant about the risks
of universalizing his critical interventions, he insists that the work is
not conceived as ‘atemporal and portable’. This work invites us into
grappling with the specific histories and geographies of contemporary
India and shines a light onto the braiding of the ‘rule of law’ and vio-
lence in this pivotal moment in Indian debates about modernity and
its futures. However, I began with a story of modern Britain and its
promises to underscore how the theoretical portals Oishik opens up
have a wider purchase. That grappling with debates grounded in the
specific histories and geographies of contemporary India have much
to teach us about how violence inhabits discourses and institutions
of modernity, including the ‘rule of law’, in other spaces and places.
Central to the entanglements of ‘violent modernity’ that are the
focus of this book, is the terrain of law, its institutionalization and its
imagination. The book speaks of how laws get constituted through
processes that have far-reaching local impacts, while emerging from
transnational processes of professionalization of legal knowledge.
‘Global Economic Constitutionalism’ and ‘New Legal Order’ are
examples of these travelling knowledge regimes that Oishik describes
(drawing on Jasbir K. Puar) as ‘history vanishing’ frameworks. They
build on long-standing investments in notions of the ‘rule of law’
that have emerged as distinctive features of how modernity has come
to be defined by dominant institutions and political cultures in
India. This work tells us how law and cultures of legality interpolate
modern citizenship through what Oishik identifies as ‘spectacles of
emancipation’ that seduce faith and compliance through the mirage
of law as a conduit for justice, or even as itself a metonym of justice.
The striking achievement of the ‘spectacles of emancipation’ that
this story lays bare is that liberal legality and majoritarian violence
have moved forward as co-travelers in shaping the contours of modern
citizenship from courtroom battles to cinematic dramas. Thus, while
the Special Investigation Team exonerated Narendra Modi for his
 Foreword xiii

role in the orchestration of the anti-Muslim pogrom in Gujarat,

giving him a ‘clean chit’ carrying the imprimatur of supreme legal-
ity, cinematic representations of the afterlives of Gujarat in cultural
memory represent and rationalize the constitution and ‘state-making’
practices that were the pre-histories of the pogrom. Through
analysis of the Best Bakery massacre and the Bollywood film Dev,
Oishik shows how a space is made for Islamophobic violence that is
represented in both law and cinema as ever present but with no one
responsible—indeed, it emerges as compatible with the ‘secularism,
legalism and developmentalism of the New Indian State’. Naturalized
and aestheticized as a necessary backdrop for the nation, the film
allows anti-Muslim violence to be remembered anew in ways that
re-inscribe national mythologies of heritage and heroes, reconcilia-
tion and redemption, tolerant Hindu majorities and ever outsider
Muslim minorities. Oishik describes a ‘jurisprudential–aesthetic’
narrative compact that carries subliminal cinematic cues (about
Hindi–English as the national–universal for instance) that work
alongside constitutional inheritances to shape conditions of legibility
for modern political subjectivity in ways that exclude and marginal-
ize minorities. The analysis powerfully portrays the mythic lives of
law—offering nuanced portrayals of the hyperbolically visible and
audible jurisprudential orientations of Bollywood on the big screen,
but also with an eye acutely alert to the nuances of affect in a film’s
reception, attentive to the work of ‘minor jurisprudence’ in the cin-
emagoer’s aesthetic consumption.
Critical legal theorists who speak of the social construction of
law have developed a body of work on the development of institu-
tions and traditions of judicial interpretation; equally, there has been
work on the relationship between social movements and legal devel-
opments. This book takes these conversations further into the realm
of cultural production and connects the dots between institutions
tasked with the administration of justice (including social services),
social movements making justice claims (for instance, around sex
work in one instance, and sexual rights in another) and the inter-
polation of the juridical in realms such as film (documentaries to
advertisements). For instance, in the case of children of sex workers,
the analysis (co-authored with Debolina Dutta) offers a compelling
critique of how dominant humanitarian tropes of ‘rescue’ deny
xiv Foreword

children’s agency and the complexity of their familial and social rela-
tions. It is an argument that deconstructs the affective structure of
compassion in this domain, and how it facilitates violence and abuse
against these same communities precisely by advancing narratives in
their name.
The complexity of the multiple lives of law and its disciplinary
technologies that Oishik describes is that these dynamics worked
differently for social movements seeking institutional legibility for
the sexually marginalized in struggles for the decriminalizing of
adult, consensual, and private sex. Here, the driving trope of liberal
modernity was not humanitarian compassion but the mythos of
equal rights, and how it has been invoked and deployed in ways
that domesticated the subversive thrust of queer politics. Oishik’s
argument in this discussion deconstructs the affective structure of
inclusion into neoliberal, market-friendly modernity, and how it
presses depoliticization and individualization onto queer communi-
ties precisely by advancing narratives in their name for the redemp-
tion of ‘New India’ and new markets. In both these cases, Oishik is
not just an observer but an activist and his reading of these domains
also situates his own creative interventions and solidarities in these
struggles (including, he says, in performing ‘stuckness’, following
Lauren Berlant). Thus, these are not arguments for abandoning
activism but for doing it differently by wrestling with intersecting
structures and identities to stay with the fraught political challenges
of thinking collaboratively with social movements about how to
advance justice claims but refuse ‘homonationalism’ and interrupt
neoliberal citizenship.
This a book of dazzling erudition—Oishik is in conversation
not only with other legal scholars in India and elsewhere, but also
with the theorizing of legal modernity in a range of other disci-
plines from literary theory to postcolonial studies to anthropology
to queer theory. Masterfully drawing attention to and analyzing
the assemblage of mnemohistories in the formation of a national
consciousness driven by the juridical unconscious, this work
offers a remarkable tour de force journey through battles over
the life of the law, showing the co-constitutive intimacy of con-
stitutional and cultural domains. Yet, what is most striking is the
 Foreword xv

insistent self-reflexive situating of these conversations in his own role

in academia and social movements with particular political invest-
ments. The discussion of his feminism and the vexed entanglements
of those commitments, from the personal to the professional to the
political, offers but one example of what is a running sub-narrative
that is a dialogic companion to every argument in the book.
In other words, the book’s erudition and multiple interdisciplin-
ary conversations are not channeled into the disinterested pursuit of
critique as enlightenment, but a constant questioning of the theorist as
activist, and the activist as theorist. In fact, one may situate the notion
of enlightenment here as akin to the notion of critique that Foucault
articulates in ‘What is Enlightenment?’ Foucault argues that Kant’s
essay should not be understood as a celebration of the knowledge
regimes associated with the historical moment of enlightenment but as
an interrogation of that moment—or indeed, a critical interrogation of
the moment one is in. Such an interrogation is a constant companion
to Oishik’s analysis—an alter ego, pushing at every analytical move,
grappling with hard questions about the relation of text and context
at each turn, relentlessly holding itself to account. In this sense, in this
book that gives expression to the responsibilities of critique alongside
the hope embedded in struggle, Oishik may be a worthy inheritor of
Upendra Baxi’s mantle and his simultaneously inspiring and discom-
forting presence in a wounded world.
In the Kureishi short story that I began with, Ali criticizes his
father’s investment in Britain’s promises, asking ‘Papa, how can you
love something that hates you?’ Parvez does not answer the question
but perhaps the story of Parvez’s love is that he had to fight against
the hate of injustice to create the space for his life; that fight engen-
dered the investment that Ali terms love. Oishik’s critique of the law
and the injustices it has wrought in the name of justice, also loves
wrestling the law for the space that justice struggles demand. This
comes through in the aesthetics and rhythms of this beautifully writ-
ten book that was such a pleasure to read. I lean on James Baldwin
here who speaks of love as ‘a battle; love is a war’—but love is also,
as he says in another passage, ‘a state of being, or a state of grace …
in the tough and universal sense of quest and daring and growth.’
Violent Modernities in chapter after chapter, can be seen to be just
xvi Foreword

that, an expression of love as a brawl with law for space—the space

to invoke, listen to and perform law differently in a quest marked by
grace and daring.

Vasuki Nesiah
Professor of Practice
Gallatin School of Individualized Study
New York University
Acknowledgements

A book is not an isolated being: it is a relationship, an axis of innu-

merable relationships.
— Jorge Luis Borges, Labyrinths(1962)

The essays collected in this book document my scholarly and activist

journeys through the labyrinths of the learnings and failings of my
politics over a period of a decade. I would like to thank those whose
influences have played a foundational role in both strengthening and
questioning the praxes of my proclivities and predilections over these
years.
Ravi Nair, for initiating me into the world of human rights activism
and research. Ranabir Samaddar, for making me realize that activism
is fortified through theorizing. Hutokshi Doctor, for training me to
never underestimate the intelligence of readers and for cautioning me
against my love for jargons. Sharmila Rege, for showing me the joys
of bringing together teaching and writing for social justice. Rustom
Bharucha, for demonstrating through his writing and thinking how
to read politics into aesthetics and vice versa. Ratna Kapur, for lend-
ing me a feminist language to work through my double-binds. Brenda
Cossman, for pushing me to think of the worth of critique as scholarly
practice. Shaun McVeigh, for provoking me to think of conduct as dif-
ferent from critique. Jasbir Puar, for enlivening theory as life practice.
xviii Acknowledgements

Sundhya Pahuja, for impressing on me the political worth of scholarly

conventions. Dianne Otto, for keeping alive the flame of activism in
scholarship. Peter Rush, for showing me why style matters for scholar-
ship. Joan Nestle, for insisting on the political necessity of pleasure and
poetry. Jennifer Nedelsky, for emphasizing how material conditions of
gendered work are intrinsic to the politics of scholarship and activism.
Janet Halley, for urging me to never flinch if I want to take a break.
Ritu Birla, for teaching me history as process, not event. Flavia Agnes,
for keeping alive a faith in law’s promises in dark times. Upendra Baxi,
for practicing a scholarly life that brings alive the struggles of keeping
faith in law’s promises and learning from law’s betrayals.
Friends, mentors, comrades, colleagues, and collaborators whose
lives, work, and generosity have materially, gastronomically, emotion-
ally, and intellectually sustained and nurtured me in ways that might
be completely unknown to them: Adil Hasan Khan, Trina Nileena
Banerjee, Sakyadeb Choudhury, Shayanti Sinha, Deepti Mohan,
Saptarshi Mandal, Rohini Sen, Rajshree Chandra, Claire Opperman,
Anirban Ghosh, Garga Chatterjee, Shilpi Bhattacharya, Dipika Jain,
Samia Khatun, Carolina Ruiz Austria, Alivia Dey, Ann Genovese,
Sara Dehm, Luis Eslava, Rose Parfitt, Vik Kanwar, Julia Dehm, James
Parker, Cait Storr, Dolly Kikon, Yasmin Tambiah, Sally Engle Merry,
Kalpana Kannabiran, Saumya Uma, Bina Fernandez, Jaya Sagade,
Maria Elander, Bikram Jeet Batra, Farrah Ahmed, Mohsin Alam Bhat,
Mohsin Raza Khan, Albeena Shakil, Rahul Rao, Nikita Dhawan,
Meenakshi Gopinath, Swati Bhatt, Agyatmitra Shantanu Mehra,
Ruchira Goswami, Arun Sagar, Arpita Gupta, Rajgopal Saikumar,
Priya Gupta, Sneha Gole, Anagha Tambe, Sannoy Das, Danish Sheikh,
Prabhakar Singh, Maddy Clarke, Sagar Sanyal, Aashita Dawer, Ankita
Gandhi, Sanskriti Sanghi, Max Steuer and Anish Vanaik.
My students at Jindal Global Law School who have humoured
and tolerated my ideas in the Jurisprudence, and Violence, Memory,
and Justice courses—some of which were built on the essays in this
book and some which contributed to the essays. Thanks to Shivangi
Sud, Uday Vir Garg, Amshuman Dasarathy, Rhea Malik, Aishwarya
Koralath, Medha Kolanu, Sanjana Hooda, and Rohan Talwar for your
research assistance. Pallavi Mal, Muskaan Ahuja, Ishani Mookherjee,
and Shubhalakshmi Bhattacharya, for your assistance with teaching.
Rishabh Bajoria, Siddharth Saxena, Ayushi Saraogi, Dikshit Sarma
Bhagabati, Malini Chidambaram, Neeta Maria Stephen, Katyayani
 Acknowledgements xix

Suhrud, and Amala Dasarathy for your provocations in the class-

room. I am immensely grateful to each one of you for your efforts,
engagement, and unremunerated labor. You have been my closest
readers and most thoughtful interlocutors. You are the motivation
behind bringing this book out. If I have an imagined ideal reader in
mind, it is a young student at an Indian law school like you. Thank
you for teaching me about how to make the politics of law relevant
and accessible for tomorrow’s critical lawyers.
A range of organizations and institutions supported the writ-
ing of the essays at various times for over a decade without whose
intellectual, financial, and infrastructural support I could have
possibly never written. Thanks to: Mahanirban Calcutta Research
Group, Krantijyoti Savitribai Phule Women’s Studies Centre at the
University of Pune, West Bengal National University of Juridical
Sciences, Child Rights and You, Centre for the Study of Developing
Societies, Public Service Broadcasting Trust, Centre for Studies
in Social Sciences Calcutta, Johannesburg Workshop on Theory
and Criticism at the University of Witwatersrand, Australia India
Institute at the University of Melbourne, Institute for Global Law
and Policy at Harvard Law School, Institute for International Law
and the Humanities at Melbourne Law School, and the Jindal Global
Law School (JGLS). Among these, I spent the most amount of time
in Melbourne and JGLS, Sonipat and I am especially thankful to
these institutions. I would like to particularly thank C. Raj Kumar,
my dean at JGLS for fostering a culture of critical interdisciplinary
legal research that has been most generative for me. JGLS has always
been a location of contradictions for me—one with which I have a
relationship of uneasy affinity. That is what has also made it one of
the most provocatively productive spaces to inhabit as a critical legal
academic in the New India.
I would like to acknowledge that the writing done at the Melbourne
Law School was carried out on the lands of the Wurundjeri People
of the Kulin Nation who have not ceded their sovereignty. I pay my
respects to their elders, past, present, and emerging. This acknowl-
edgement is necessary because even as a temporary migrant to the
settler colonial state of Australia, I was the beneficiary of colonialism’s
loots that allowed me to pursue my doctoral studies there.
Every expression of gratitude will fall short for Vasuki Nesiah’s
incisive and generous foreword to the book. Thank you for writing
xx Acknowledgements

it so beautifully. Vasuki has been a constant figure of encouragement

and support for several years. I continue to learn new lessons about
scholarly humility, collegiality, and care from her writings and teach-
ing. It is a very special feeling to have the essays prefaced by her words
(written under the very difficult circumstances of the COVID-19
lockdown in New York City).
I am so excited about this book featuring a cover image designed
by Siddhartha Dutta. I cannot thank him enough for lending an
unusual aesthetic intensity to an ordinary photograph that I had
taken many years back. I have for long admired his creative imagina-
tion as a visualizer and it is an honour to have his work on the cover.
Irrespective of their interest in what I research on and write about
as an academic, my family members have remained an uncondi-
tional source of love, overenthusiasm, and distraction. I’d especially
like to acknowledge the presence in my life of my parents, Anjan
and Anjana, my mother-in-law, Pratima, my aunts, Swapna, Roma,
Ratna, Manjula, uncles, Amal, Partha, Tapan, and Pradip, my sib-
lings, Ishika and Shayak, their partners, Sayak and Aashima respec-
tively, my little nephew Ricco, my cousins, Sreya, Kanishka, Tisha,
and Ayan, and the indelible memories of my grandparents, Bani,
Prafulla, Santosh, Dolly, Krishna Narayan, my uncles, Alok and
Ranjan, and my father-in-law, Ajit.
Since much before the ten-year period through which the essays in
this book were researched, written and published, I have been living
a life of immense joy, exhilarating frivolity, and deep reflection with
D. She has been my teacher in how to live an ethical life that takes the
quotidian and the relational seriously. She continues to exemplarily live
out both the possibilities and perils of ‘the personal is political’. Her
sarcasm keeps my academic vanity in check and her love provides a
lihaaf of comfort and care that I cannot live without. She is my fiercest
critic and my most intellectually stimulating collaborator. I am proud
to be able to feature one of our collaborative works in this book. To
D—on her fortieth birthday—I dedicate this book as a gift to celebrate
our life together as partners in politics, profanities, and vulnerabilities.

____

Special thanks to the former and current team at Oxford University

Press who helped with bringing the book to fruition: Manish Kumar,
 Acknowledgements xxi

Barun Sarkar, Moutushi Mukherjee, Mousumi Bera, Marianne Paul

and Paulami Sengupta. I also thank the two anonymous reviewers
whose very supportive feedback helped with sharpening some key
arguments.

____

I thank the editors of the journals and books where the essays were
first published for giving me writing space and to the publishers for
the permission to republish them as part of this book. Thanks are also
due to the peer reviewers who had commented on the articles and
chapters for their considered reading and feedback.
Chapter 1 was published as ‘Spectacles of Emancipation: Reading
Rights Differently in India’s Legal Discourse,’ Osgoode Hall Law
Journal 14: 3 (2012) 527–573. Chapter 2 (co-authored with Debolina
Dutta) was published in parts as ‘Beyond Compassion: Children of
Sex Workers in Kolkata’s Sonagachi’, Childhood: A Journal of Global
Child Research 18: 3 (2011), 333–349 and ‘Notes on Unlearning:
Our Feminisms, Their Childhoods’, in Rachel Rosen and Katherine
Twamley (eds) Feminism and the Politics of Childhood: Friends or
Foes?, London: UCL Press (2018) 75–81. Chapter 3 was published
as ‘Bollywood’s Law: Collective Memory and Cinematic Justice in
the New India’, No Foundations: An Interdisciplinary Journal of Law
and Justice 12 (2015) 94–135. Chapter 4 was published as ‘New
Queer Politics in the New India: Notes on Stuckness and Failure in
a Negative Moment’, Unbound: Harvard Journal of the Legal Left XI
(2017) 1–36. Chapter 5 was published in parts as ‘The Silence of
Gulbarg: Some Inadequate Images’, Human Rights Defender 25: 1
(2016) 24–28 and ‘Gujarat 2002: Refracted Memories, Inadequate
Images’, in Satvinder S. Juss (Ed.) Human Rights in India, London:
Routledge (2019) 125–151. Chapter 6 was published as ‘Professor
of Pathos: Upendra Baxi’s Minor Jurisprudence’, Jindal Global Law
Review 9: 1 (2018) 203–222. Chapter 7 was published in parts as
‘Doing and Undoing Feminism: A Jurisdictional Journey’, Economic
and Political Weekly L: 12 (2015) 44–47 and ‘Doing and Undoing
Feminism: A Jurisdictional Journey’, in Romit Chowdhury and Zaid
Al Baset (eds) Men and Feminism in India, New Delhi: Routledge
(2018) 73–100.
Preface
Negative Spaces

The relationship between law and violence is paradoxically struc-

tured: law is the opposite of violence, since legal forms of decision-
making disrupt the spell of violence generating more violence. At the
same time, law is itself a kind of violence; because it imposes a judg-
ment that determines its ‘subject’ like a curse.
— Christophe Menke, ‘Law and Violence’ (2010: 1)

[L]aw as a unified entity can only be reconciled with its contradictory

existences if we see it as myth.
— Peter Fitzpatrick, The Mythology of Modern Law (2002: 1)

That law and violence share an antithetical relationship in modernity

is a virtuous cliché.1 Violence—both exceptional and ordinary—is
commonsensically considered the other of law.2 It is axiomatic to
value lawfulness as progressive and lawlessness as primitive.3 A condi-
tion of lawlessness is understood to produce violence. A fetishistic
desire for the rule of law and human rights (Kerruish 1992: 99),
particularly in the postcolony (Comaroff & Comaroff 2006), is pur-
sued as a means of resisting and repairing the violence of lawlessness.
Unless, lawlessness is desired by law itself (couched in the language
xxiv Preface

of exceptionalism) to achieve the promise of a greater common good

(Hussain 2006; Agamben 2005; Roy 2019: 25–75).
In Violent Modernities: Cultural Lives of Law in the New India, I
locate law and violence in a negative space—‘the recessive areas that
we are unaccustomed to seeing but that are every bit as important for
the representation of the reality at hand’ (Daly 2003: 771)—where
they are not adversaries but allies. The seven essays4 that follow con-
stitute a bricolage5 that speaks to select ‘critical events’ (Das 1995) in
contemporary India to offer explorations of the paradoxical relation-
ships between law and violence. Each essay tells a story about the
relationship between law and violence not as one of animosity, but
of deep intimacy, where one symbiotically feeds off the other (Cover
1995: 203–8). Instead of casting law as the heroic Hercules that
slays the hydra-headed demon of violence (Flood & Grindon 2014:
7–9),6 the essays unsettle and blur this relationship—not to claim
that there are no differences between law and violence, or to favour
violence over law, but to interrogate the terms on which such differ-
ences are founded, sustained, and reified. I foreground the political
and ethical stakes involved for a critical legal praxis in considering
either law or violence as hermetically sealed, Manichean categories
of good and bad.
Modern law’s mythology—founded on the ideas of parliamentary
democracy, constitutionalism, state secularism, social development,
economic growth, techno-scientific advancements, and justice—is
what popularly makes postcolonial India a modern and liberal
nation-state. That law carries the potential to be violent or unjust is
not outside of the liberal imagination. Law in this imagination is a
public good that entitles citizens to rights, limits the state’s totalitar-
ian tendencies, and criminalizes those who threaten the polity and
the people through their speech or deeds. However, a liberal critique
of modern law is mostly concerned with the nation-state’s inability to
guarantee access to or strengthen justice-delivery mechanisms, with
the nation-state’s acts of overreach into the arena of individual rights
like privacy and property, and with the nation-state’s demonstration
of ‘softness’ towards thoughts and actions of those considered ‘anti-
national’. Such a critique is interested in expanding or limiting law
for the enhancement and flourishing of the lives of individual citi-
zens (Cole & Craiutu 2018). Of course, who qualifies as the citizen
 Preface xxv

deserving of protection from harm by the law has historical roots in

liberalism’s violent exclusions of those considered to be in their ‘non-
age’ (Mehta 1999; Kapur 2005). For ‘dealing with barbarians’, wrote
John Stuart Mill in On Liberty, ‘despotism is a legitimate mode of
government […] provided the end be their improvement’ (2002: 8).
The essays in this book question this commonsensical wisdom of
the liberal critique to understand law not as the slayer of violence,
but as its conduit. What would justice look and feel like if law, as the
path to it, is one that authorizes violence—spectacularly and stealth-
ily—in the name of justice? The book engages in a reading of law’s
relationship with violence to offer an insight into the cultural imagi-
naries of justice in the New India—one marked by the combined rise
of neoliberalism and Hindutva (Desai 2004; Gopalakrishnan 2006:
2,803–13; Nanda 2009; Teltumbde 2018), which, ‘far from being
antagonistic forces [are] actually lovers performing an elaborate ritual
of seduction and coquetry that could sometimes be misread as hostil-
ity’ (Roy 2019: xvii).7
Law, as matter and metaphor, has been at the heart of the contes-
tations over cultural politics in India today—be it in the struggles
for social justice, for holding the state accountable for mass crimes,
demanding sexual autonomy for queer people, calibrating experiences
of suffering, or the pedagogical practices of citizen-making in the
university. The essays step out of the regular venues of legal activity
to focus on reading a set of cultural sites—literary texts, Bollywood
cinema, documentary films, social media posts, photographs, adver-
tising, and the university—where the law’s promise of emancipation
and the performance of violence live a life of intimate paradoxes.
Researched and written between 2008 and 2018, the essays speak
to the time of their writing to provide an at once theoretical, activist,
and self-reflexive critique of select critical events that have animated
the cultural lives of law in the New India.8 I understand culture as
the terrain on which legal knowledge is produced that is not solely
attached to the sources of modern ‘positivist’ state law—courts,
judgements, or legislations. While I engage with these sources, the
essays are primarily interested in understanding what happens to the
meanings produced by these sources when they enter the negative
space of culture, or one of ‘shared meanings’ that are in flux and
fossilized at the same time (Hall 2009: 1).
xxvi Preface

If you read the essays in the order that they appear in the book, it
will become apparent as to how they are tied together by a political
and disciplinary commitment, that is, to engage in a reading of culture
from the vantage point of jurisprudence in order to understand the
relationship between law and violence. However, the essays can also be
read independently of each other, or in an order that the reader deems
fit; in either case, the commitment will still be evident. To make the
reading experience enabling for both the continuous and discontinu-
ous reader, each chapter mentions the year and place of writing with a
line offering the context in which the essay was written.
It is also for this reason that the keywords that make up the title
of the book—law, violence, modernity, culture, New India—are not
coherently theorized. For the sake of some preliminary and con-
tingent clarity, I will hazard an attempt at holding these to a bare
minimum of an expression over which each of the essays will add
layers of meaning. What I offer here in brief are not definitions, but
indications of the nature of their use in the essays to follow.
Law: When used with the capital ‘L’ is mostly state-sanctioned
modern law, understood in the nature of legislations and judge-
ments, authorized (enacted or passed) by parliaments and courts in
a secular democracy like India; or international law emanating from
the United Nations (UN). These ‘Laws’ are posited in documents like
the Constitution of India or international conventions/treaties, and
they command obedience through a combination of custom, civility,
routine, shame, deification, obligation, and fear.
law: When the ‘l’ is in lower case, the term refers to the polysemic
imaginations of law, emanating from sources like literature, film,
popular culture, rumour, that are not considered sources of legitimate
legal knowledge. The scriptural and visual languages that make up
this universe of imaginations comprises, among others, metaphors,
images, sounds, objects, and emotions. When used with the small ‘l’,
law also has an ethical dimension to it, where judgement and justice
are understood not as purely hermeneutic/cognitive activities, but
also as sensory and affective ones (Davies 2017).
I don’t indicatively use the upper- and lower-case versions through
the essays. These are just indicative of the two ways I use the word
‘law’, and on many occasions, both apply to the same situation where
I am undecided/indeterminate about holding the meaning to only
 Preface xxvii

one. I invite the reader to participate in this figuring-out process with

me.
Violence: These are deeds and words (even when unconscious and
unintended) that have the capacity to produce suffering and vulner-
ability (fear and risk) and whose impacts on life (both humans and
non-humans) can be corporeal, psychic, structural, intergenerational,
ritualistic, anaesthetic. The law, when it claims to resist or undo vio-
lence and its causes and consequences, must first categorize it as a
violation by naming a right. In effect, many forms of violence do not
qualify as such in the eyes of the law if they do not correspond with
the recognized and protected right in question. Often, in the name
of justice, law embalms violence and violent regimes to preserve a
higher order of institutions, structures, and humans. Memories of
violence don’t die—their traces live on through trauma. Trauma is
recorded on bodies, in documents, and in inherited minds that live
on after the bodies are no more. Experiences of violence do not have
any universal currency. Trauma and suffering are lived differently by
different peoples at different times and places. The law’s recognition
of what qualifies as violation results in a hierarchized calibration of
forms of suffering.
Modernity: This is a progression away from primitivity. It is an idea
that is both temporal and aesthetic. Enlightenment thought, or what
can be called liberalism, is the modern idea of modernity. It carries a
‘history vanishing’ (Puar 2007: xix) and eventocratic quality (Kalyan
2020) that gets applied to interpret the contemporary by marking
certain events as the epochal beginning of a time period or a thought
movement. Modernity promotes the values of liberty, secularity, ratio-
nality, individualism, and contractualism, among others, and uses
these to establish its temporal and aesthetic distance from its dichoto-
mous other, called tradition, and located mostly in the non-West, in
the spiritual, the magical, in and on non-white bodies. While the lib-
eral idea of modernity has been historically used to justify colonialism
(and its vicissitudes in capitalism and imperialism), it has also been
used by the colonized to authorize their own versions of modernity.
Thus, postcolonialism as a body of critical thought was born out of
modernity to unsettle the modernity–tradition dichotomy.
Modernity is also nativist, not only universalist. Proponents of the
Hindu caste system use its putative ancient foundations to declare it
xxviii Preface

to be timeless and pure, and thus modern. The caste hierarchy con-
siders those at the top of it to be modern compared to those below.
To try to move up the caste hierarchy by emulating the practices of
the upper castes is understood sometimes by those below (even if it
might be a myth) to be a move towards modernity. A similar argu-
ment is advanced by capitalism to justify its seductions. Similar to
caste, the other structure of hierarchy that does not offer any incen-
tives for becoming modern is patriarchy. However, feminism as a
modern counter to patriarchy sometimes embraces the promises of
liberalism to promote a move up the gender hierarchy where being
modern is equated with a training in the sartorial and labouring mas-
culinities in the public (never in lieu of femininities though). This
has historically advantaged only some women and queers, but carries
major popular currency in law-reform initiatives.
Modern law promotes the liberal values of democracy, freedoms,
due process, secularism, and rationality. It provided the opportunity
to split the state and religion and to ostensibly lend the state more
secular authority to make rules that would govern the lives of people.
It made the state the (almost) irreplaceable system of political orga-
nization. Modern violence, genealogically, was understood as a move
away from the phantasmagoric violence of religious sovereign power
on the treasonous human’s body. It produced an appreciation for the
humanization of violence where routine replaced torture (Foucault
2012). In the wake of Guantanamo Bay, Abu Ghraib, Manus Island,
Papa II, Khairlanji, Gujarat 2002, and the ongoing and unending
public lynching of Dalits and Muslims in India, such a move is com-
ing full circle. Modernity is multitudinous. It cures and it kills. It
cares by maiming (Puar 2017).
Culture: Raymond Williams, in his classic work Keywords: A
Vocabulary of Culture and Society, wrote: ‘Culture is one of the two
or three most complicated words in the English language’ (1988:
87). Understandably, I am ill-equipped to offer even a tentatively
adequate indication. So I borrow an extract from Williams himself.
This is what he calls the ‘social definition’ of culture: ‘in which cul-
ture is a description of a particular way of life which expresses certain
meanings and values not only in art and learning but also in insti-
tutions and ordinary behaviour. The analysis of culture from such
a definition is the clarification of the meanings and values implicit
 Preface xxix

and explicit in particular ways of life, a ‘particular culture’’ (Williams

2001: 57). In the case of both modern international and municipal
laws, culture is deployed in the context of relativism. Institutions
of modern law promote certain cultures and civilizations and work
towards abolishing, censoring, or criminalizing others. Most of this
work—which oftentimes takes violent forms—is carried out under
the liberal guise of reform, development, and progress.
New India: Shapeshifting. Promising and pathetic. Precarious and
perverse. It is a ‘war machine’ (remember Salwa Judum and Ikhwan,
for starters):

Polymorphous and diffuse organizations, war machines are character-

ized by their capacity for metamorphosis. Their relation to space is
mobile […] The state may, of its own doing, transform itself into a
war machine […] A war machine combines a plurality of functions. It
has the features of a political organization and a mercantile company.
It operates through capture and depredations (Mbembe 2003: 32).

This is the ‘infrastructure of impunity’ (Roy 2017). What’s new

about this India?
Here, then, is a sneak peek into the topics of the essays to pique
your interest. The seven chapters are arranged in two parts. In a spin
on a classic feminist slogan, Sara Ahmed has written ‘The Personal is
Theoretical’: ‘Theory itself is often assumed to be abstract: something
is more theoretical the more abstract it is, the more it is abstracted
from everyday life. To abstract is to drag away, detach, pull away, or
divert. We might then have to drag theory back, to bring theory back
to life’ (Ahmed 2017: 10).
I offer a reverse spin on Ahmed. Part I is called ‘… the Theoretical
…’ and Part II, in continuation, is called ‘… is Personal …’. This is
an acknowledgement of the direction of my journey (and that of the
sequence of the essays)—which begins with theory, and opens up
to the personal. In this, theory offers a frame to curate the personal,
but the personal spills over and spoils the frame, thus helping me to
encounter failure and see the finitude of theory. The personal, how-
ever, doesn’t trump theory or the other way around—their relation-
ship is both dialectical and dialogic. The ellipses indicate a ‘joyous
wandering’ between and across fractures, asymmetries, slowness,
entanglements, and repetitions (Derrida 1978: 294; Toner 2015).
xxx Preface

Chapter 1 (‘Spectacles of Emancipation: Reading Rights

Differently’ [2012]) is an essay that complicates the relationship
between rights and the idea of emancipation to offer an expansive
critique of liberal faith in constitutionalism. I demonstrate how
the promise of emancipation in the Constitution of India can be
a spectacle that blinds justice seekers from its violent dimensions.
Just in case you decide to begin at the beginning, this essay sets
up the political and methodological orientations for what is to fol-
low in the rest of the book. So, Chapter 2 (‘Beyond Compassion:
Children of Sex Workers and the Politics of Suffering’, co-authored
with Debolina Dutta [2011]) continues to use the metaphor of the
spectacle to look at how liberal human rights work contributes
to producing hierarchies of suffering and regimes of compassion
that depoliticize citizenship claims made by children of sex work-
ers in Kolkata’s Sonagachi red-light area. Chapter 3 (‘Bollywood’s
Law: Cinema, Justice, and Collective Memory’ [2015]) engages
the question of memory to understand the relationship between
law and violence by reading a filmic representation of the 2002
anti-Muslim pogrom in Gujarat. In doing so, I offer a critique
of how cinema reifies a narrative of memory in which secular law
triumphs over religious violence, and thus leaves unquestioned the
role of secular law in enabling the violence in the first place. The
triumphs and tribulations of the legal battle against Section 377 of
the Indian Penal Code (IPC) that criminalized the lives of India’s
queer people are the subject of Chapter 4 (‘New Queer Politics:
Notes of Failure and Stuckness in a Negative Moment’ [2017]). By
studying a range of popular cultural artefacts, this essay offers an
account of the troubling turns that the queer movement’s engage-
ment with law has taken in the wake of neoliberalism and Hindu
fundamentalism. Chapter 5 (‘The Silence of Gulberg: Refracted
Memories, Inadequate Images’ [2018]) is an autobiographical
account of an ethical crisis that I confronted as a researcher when I
returned to Ahmedabad 10 years after the 2002 pogrom to survey
the public remnants of violence. Combining text and images pro-
duced by me, the essay struggles with working through the inter-
pretive dilemmas of witnessing and memorializing mass violence
by ‘outsiders’ like me who were not the targets of the violence in
the first place.
 Preface xxxi

With the two concluding chapters, I enter the space of the

university that I inhabit on an everyday basis. These two chapters
are also an account of my personal negotiations in teaching leftist
law in a capitalist university, and a partial acknowledgement of my
feminist inheritances as a legal academic. In Chapter 6 (‘Professor of
Pathos: Upendra Baxi’s Minor Jurisprudence’ [2018]), I do a repara-
tive reading of law professor Baxi’s minor works to emphasize the
ethical responsibilities incumbent upon the critical legal scholar in
times that are marked by the perverse coexistence of acute precarity
and spectacular affluence. In closing, Chapter 7 (‘The Conduct of
Critique: Jurisdictional Account of a Feminist Journey’ [2018]) takes
another autobiographical turn where I think through the ethics of
what it means for me to be a male feminist legal scholar inside the
neoliberal university. This essay is a self-reflexive account that gestures
towards a practice of feminist jurisprudence that takes responsibil-
ity to acknowledge failure. My analysis invites a consideration of a
legal critique that embraces the idea of failure as a productive way of
thinking about its practice of responsibility.

Gestures and Tendencies

Since subject position is everything in my analysis of the law, you
deserve to know that it’s a bad morning. I am very depressed. It always
takes a while to sort out what’s wrong, but it usually starts with some
kind of perfectly irrational thought such as: I hate being a lawyer.
— Patricia J. Williams, The Alchemy of Race and Rights (1992: 3,
emphasis in original)

This was never meant to be a book. The essays were written without
any prior sense of them mutating into bound form with a material
beginning and an end. After writing and publishing them at differ-
ent times and places, I felt that I was able to hear some keynotes
resonating through the pieces. While this has allowed me to claim
authorship of a rhythm that ties the notes together, I have also had
misgivings about whether I was forcing captivity on them within a
neat composition. What you will encounter, thus, are essays that are
working through negotiations between the paradoxes of fragmen-
tation and cohesion, indeterminacy and coherence, glee and cau-
tion. These negotiations pertain not only to my own experience of
xxxii Preface

attempting to collate the essays into a chapterized sequence for the

book, but more significantly, to the thematic whole of the book itself
and its parts in the chapters.
The period of research and writing the essays is bookended by the
defeat of the erstwhile National Democratic Alliance (NDA) govern-
ment headed by the Hindu nationalist Bharatiya Janata Party (BJP) in
2004, and the return of the BJP in 2014 with a full majority marking
an unprecedented presence and spread of Hindutva consciousness
in both the private and public lives of India. The intervening years
through which the United Progressive Alliance (UPA) ruled, headed
by the Indian National Congress (INC), presented the possibility of
some secular social justice promises being fulfilled, only to be massa-
cred by a full-blown neoliberal assault (a state–corporation–military
complex) on the poor, and the fledgling emergence of neoliberalism’s
favourite minority in India’s urban queers. The current BJP govern-
ment has done well to capitalize on the meticulous anti-poor ground-
work done by the UPA, and has produced its own toxic concoction
that sophisticatedly and perversely fuses neoliberalism and Hindutva.
Through this decade-long period of researching and writing, I
have also been teaching and studying across three continents. I am
formally trained in Indian law, and have subsequently acquired jur-
isprudential training in Canada and Australia. Methodologically, I
write from the interstices of a disciplinary location that continues
to be challenged and enriched through these travels and learnings
both within and beyond the postcolony (Arif 2015: 53). My post-
colonial legal and aesthetic sensibilities keep me on alert regarding
both the possibilities and limitations of the theoretical bricolage that
I have put together. A part of this sensibility consists of the practice
of responsibility towards the place, the peoples, and the texts I am
writing about, as well as towards the multi-jurisdictional disciplinary
locations that I am writing from. The book, therefore, demonstrates
a mongrel heuristic that works through the oppositional and shared
epistemologies that I have inherited (Kapur 1999: 353; Genovese
2013: 41).
The analyses that each of the essays present are limited to events and
instances that are specific to their time of writing. I have purposefully
desisted from updating the essays with current developments because
I do not want to propose that my critique is atemporal and portable.
 Preface xxxiii

This is a methodological and political decision that wishes to avoid

the arrogance of suggesting that the theoretical frames and positions
of critique that I draw on and deploy carry universal explanatory
valence—they do not. However, I do think that the datedness of my
analyses offers a contemporary pre-history of the current forms of
modern violence and its relationship to law in the New India—par-
ticularly those that have transpired since the BJP’s return to power in
the 2019 general elections.9
Each essay offers two things simultaneously: a partial report
on how the political ambience of the time impacted the cultural
relationship between law and violence, focusing on ‘snapshots and
flashpoints’ (Puar 2017: xix); and a semi-autobiographical account
of my relationship with the discipline of law as a legal academic
and a lapsed human rights activist. Through the period of writing I
experienced a stepping away from full-time human rights work, to
stretches of unemployment and freelancing to becoming a full-time
academic in possibly India’s first neoliberal private research univer-
sity. These transitions were repeatedly punctuated by several personal
tragedies—especially of losing some of my most dearest people.
If the essays are read in their order of appearance, one will be able
to identify a shifting ethos in the tone of my writing: from coher-
ence to indeterminacy to undecidability; from reform to resistance to
responsibility. These shifts are elliptical. The proportions of the tonal
characteristics just mentioned are not consistent, but they move in
the aforementioned directions. In the first chapter, I offer a Marxist
critique of rights—and present such critique as a coherent political
position. The second essay instils doubt in the universal good attached
to the idea of compassion in human rights work—this marks the
turn towards indeterminacy that in a sense coincides with my own
ethical dilemmas as a scholar-activist at that time. The third essay
returns me to a less certain coherent politics—however, instead of
a completely structural analysis of the Gujarat pogrom, I merge the
structural with the sensory. This is what might be called a contingent
structuralism, rather than a paranoid one (Kennedy 2001: 1,173–7).
The fourth essay demonstrates a coming together of coherence,
indeterminacy, and undecidability in understanding the emerging
dynamics of a new queer politics, which demands decriminalization
of sodomy and embraces capitalism at the same time. This is also
xxxiv Preface

where I speak of failure—of legal activism and legal interpretation.

This offers the cue for the next section, in which the three essays
take on a semi-autobiographical mode of writing about these shifting
affects in thinking through my scholarly inheritances and what role
they play in shaping my research and pedagogy as a jurisprudent and
feminist legal scholar.
My authorial voice also shifts between being dispassionate and
intimate. There are a few occasions where my doctrinal training in
law gets the better of me, and there are those instances where my
critical legal sensibilities struggle with the way I use the ‘I’ narra-
tive—authoritatively or tentatively; clinically or experientially; ego-
tistically or with passivity. As a legal academic, my relation to law is
one that echoes Patricia Williams’s epigraph earlier. Irrationality is an
affect that I take seriously when thinking about the law (Bortolotti
2014)—the irrationalities of the law’s violence, the irrationalities of
lawless violence that the law tries to censor, my own hermeneutic
irrationalities that carry the potential of committing interpretive
violence and countering the law’s rationalization of its own violence.
To be depressed and hateful are passionate emotions that sit uneas-
ily with the decorum of modern law (Bandes 2012; Nussbaum 2013)
but are befitting for the period that I have inhabited and have written
about. Thus, the repeated resort to the polemical and the poetic in
the essays when the analytical frame becomes inadequate—which is
quite often. In a similar vein, experiences of hopelessness, slowness,
and failure recur. All of these are presented in varied filtered forms
through all the six essays. These shifts in tone and voice speak to
the mood of the period/issue/incident/event/experience I was writing
about. The abiding mood through the book is complicitous, forebod-
ing, and suspicious of both selves and others. If there is a place for
a normative hope, it is in the acknowledgement of failure and my,
and our, contradictory inheritances—wherever we wish to locate our
political and personal selves on the leftist, feminist, queer, anti-caste,
anti-race, decolonial, secular, crip spectrum. There are faint traces of
humour—but never pronounced. This, I regret.
The essays collectively demonstrate the workings of a philosophi-
cal–methodological tendency that combines description and critique
aimed at ‘mak[ing] visible precisely what is visible, that is to say,
to show that which is so close, which is so immediate, which is so
 Preface xxxv

intimately linked to us, that because of that we do not perceive it’

(Foucault 1994: 540; Orford 2012: 609). This tendency, thus, does
not claim to reveal anything new about the New India. Instead,
it draws the reader into slowly paying attention to the overlooked
ordinariness of negative spaces. My allusion to the newness of an
India is not a discovery, but the acknowledgement of a complicitous
continuum between law and violence.
The book is written in the form of a bricolage of descriptive refrac-
tions that have animated my practices of queerfeministmarxistpostco-
lonial critique and activism both inside and outside the legal academy
over the last decade, especially through a period where I have had
to negotiate and come to terms with the contradictions of my own
politics and the complicities that have contaminated any claim to
purity (Sircar 2013). They carry tinges of the experiential,10 but are
not written as such. Which explains my use of the expression ‘refrac-
tion’, instead of reflection. Reflection has the possibility of being a
self-contained engagement; on the other hand, refraction is a project
with the potential to destabilize and bend our disciplined contours of
thought. Refraction doesn’t necessarily suggest a ‘moving away’ from
issues at stake, but a critical engagement that confronts not one, but
competing truths that give rise to the affective paradoxes of failure
and stuckness (Jay 2003: 2; Sircar 2011: 182). I approach this refrac-
tive practice of queerfeministmarxistpostcolonial critique from what
Paul Cilliers would call a ‘modest position’—one that acknowledges
the ‘limitations of our understanding of this world’ (2005: 5). This
is not a position of relativism, but a ‘counter-position’ (Van Marle
2013: 109–22) to ‘arrogant self-assurance’ (Cilliers 2005: 260) that
engages with complexity without any predetermined technocratic
objective of problem-solving.
Drawing on the interdisciplinary insights of postmodern jurispru-
dence, feminist legal theory, cultural studies, memory studies, queer
theory, and postcolonial theory, Violent Modernities argues that legal
imagination in India does not only emanate from courtrooms, legis-
lations, and judgements, but is lived in the practices of ordinary dis-
obediences and everyday failures, in the cultural chronicles of life in
literature, cinema, art, and the practices of pedagogy. It is only when
law can be re-imagined as such that the violence at the foundations
of modern state law can be unsettled, even if momentarily. To engage
xxxvi Preface

in this project of re-imagination, thus, becomes the responsibility for

those who wish to think with and about law, with criticality and care.

Caveat lector: ‘… the preface harbors a lie’11

This preface was written after the writing of the rest of the chapters
in the book. It was ‘a retrospective exercise, an afterthought expressed
with the benefit of hindsight’ (Chaudhuri 2013: 62). Its position-
ing at the beginning of the book is a conceit for a promise of hope
that can only fail because the consequence of the promise has already
been exhausted. This preface is thus a statement of hopelessness and
failure.
To an often-asked question by many colleagues ‘what do you work
on?’ I would have a facile response: ‘my work is hopelessly theoreti-
cal’. This was originally constructed as a self-deprecating gesture, an
awkward way to avoid trying too hard to explain why what I do will
be of interest to them or of consequence to the world at large. Some
of this awkwardness came from my own suspicions about my queer-
feministmarxistpostcolonial orientation as mere posturing without a
commitment to progressive transformation. I used to be a human
rights activist, working in the trenches, as it were, and then took a
decision to become an academic and lodge myself inside the com-
fortable precints of the neoliberal academy where I could engage in
radicalspeak even as I lived a relatively secured and slow life of read-
ing, teaching (and occasionally writing) in the company of ideas and
my students. It was as if I was betraying Marx’s final call in ‘Theses
on Feuerbach’: ‘The philosophers have only interpreted the world, in
various ways; the point is to change it’ (Marx 1978: 145). Over time
I have come to appreciate how my unease with the response can itself
be a conceit. To be hopelessly theoretical might in fact be the practice
of an ethics of failure and finitude.
In these times in the New India—where the state ‘skilfully combines
both the rule of law and reign of terror into the hegemonic tasks and
apparatuses of governance’ (Baxi 1991: 185, emphasis in original)—I
have come to understand theory as a ‘dangerous aid… a [necessary]
prosthesis’ for being and living (Cixous 1997: 4). ‘[Theory] is danger-
ous,’ writes Margaret Davies ‘because it risks the calcification of its
objects, but it is an aid because without it we cannot understand
 Preface xxxvii

these objects’ (Davies 2002: 22–23). Like the preface lends shel-
ter to a lie, theory extends hospitality to hopelessness and failure.
Without theory our lives would be reduced to algorithms, metrics,
and anthropocentrisms (as if it already isn’t)—and hopelessness and
failure would be hindrances to human progress to be tamed or caged
like an animal, annihilated like a disease, or exploited or conquered
like nature (by law, neoliberalism, and technoscience) rather than
being conditions of fracture, decay, regeneration and vulnerability
that we live with, care for, and die in.
I do not mean this as resigning to fate or to valorize theory, but
as the task of accounting for hopelessness in my practices of reading,
teaching, and writing. These practices would appear to be insig-
nificant in comparison to revolutionary forms of mass mobilizations,
but as the chapters in what follow will demonstrate, I see these as a
commitment to an ‘ordinary ethics’ (Das 2012: 133) of reparative
critique (Sedgwick 2003: 123) that does not romanticize transfor-
mation as a normative aspiration of all politics. This commitment
allows me to acknowledge the limitations and violence in practices of
interpretation, while remaining acutely cognizant that the teleologi-
cal progression from interpretation to change need not be the only
point of philosophizing and theorizing.
What if the negative space that theory opens up can be a ‘heal-
ing place’ (hooks 1991: 2) for the shared failures and vulnerabilities
that an ethos of ‘associated living’ (Ambedkar 1979: 57) demands
of us? How might we live in theory—especially in the current phase
of death and devastation in the New India? By ‘grieving for the lives
lost… [to] not fade from the struggles of the present but re-channel
that grief into struggles worthy of those lost lives’ (Nesiah 2005).
Such scholarly conduct, as Vasuki Nesiah reminds us powerfully ‘is
not a passive or therapeutic grief about past tragedies, but an active,
discordant challenge to present crisis’ (ibid.). Violent Modernities
inadequately tries to keep the challenge alive.
A luta continua? Certainly. A vitória é certa? I doubt.

Notes
1. As borne out by the work of someone like Steven Pinker (2011, 2018).
For an Indian instantiation, see Mukherjee (2018).
xxxviii Preface

2. As Satish Deshpande writes: ‘Common sense is a vitally important

social institution because it supplies the cement that holds up the
social structure… Common sense is pre-judice in the strict sense—it
is “always already” in place and hard at work long before we make any
conscious judgments’ (2004: 2).
3. For a counter to this logocentric axiom, see Derrida (1992).
4. I have chosen to characterize the chapters as essays purposefully. As
Brian Dillon writes: ‘The essay is diverse and several—it teems. But of
course it also tries—and gives up […] But here arises a conflict inside
the essay as form: it aspires to express the quintessence or crux of its
matter, thus to a sort of polish and integrity and it wants at the same
time to insist that its purview is partial, that being incomplete is a value
in itself for it better reflects the brave and curious but faltering nature
of the writing mind’ (Dillon 2017: 17–18; emphasis in original).
5. ‘[I]f one calls bricolage the necessity of borrowing one’s concept from
the text of a heritage which is more or less coherent or ruined, it must
be said that every discourse is bricoleur’ (Derrida 1972: 255).
6. This Greek myth, via the legal theorist Ronald Dworkin, has become a
key metaphor for understanding the process of principle-based adjudi-
cation by the superhuman judge in the figure of Hercules, to arrive at
the ‘one right answer’ when confronted with hydra-headed ‘hard cases’.
The myth has been read as a representation of European masculinity
colonizing Oriental femininity. See Barnett (1998: 103–10).
7. In the field of Indian legal scholarship, Upendra Baxi’s The Future of
Human Rights (2002) and Ratna Kapur’s Erotic Justice: Law and the
New Politics of Postcolonialism (2005) can be considered to be this
book’s scholarly predecessors which have contributed to critical legal
theory in India from within the discipline of law. More recently,
Kalpana Kannabiran’s Tools of Justice: Non-discrimination and the Indian
Constitution (2012) has offered a sociological critique of law, focusing
particularly on questions of identity and rights within the constitu-
tional framework. The edited volumes Crime Through Time (Rao &
Dube 2013), Violence Studies (Kannabiran 2016) and Rethinking Law
and Violence (Vashist & Sood 2020) have engaged with the relation-
ship between law and violence in India, but mostly from disciplinary
perspectives outside of law.
8. Following Margaret Davies, I understand critique as ‘a detailed analy-
sis of the foundations of the way we understand the things we think
about, whatever they are. Critique is useful and necessary to all forms
of theory, because it exposes the assumptions we make as being not
natural or neutral but, rather, associated with our particular position in
 Preface xxxix

the world. Critique can therefore enable us to understand, at least, that

our own view is partial’ (Davies 2017: 207).
9. Consider, among others, the abrogation of Article 370 and 35A of the
Constitution of India legalising India’s military occupation of Kashmir;
the Citizenship Amendment Act (CAA) combined with the Supreme
Court’s judgment in the Babri Masjid case, that strengthen the govern-
ment’s commitment towards turning India into a Hindu Rashtra; the
amendment of the the already draconian Unlawful Activites Prevention
Act, 2004 (brought in by the Congress government) that now enables
individuals to be legally declared as ‘terrorists’—which in a sense follows
the media trials that declared them as ‘urban naxals’; the Transgender
Person’s (Protection of Rights) Act that denies trans people the right
to self-determination. Paralelly, we have seen the invocation of police
powers to unleash brutal violence against young students excercising
their right to protest against the CAA, the surveillance and arrests of
human rights lawyers and activists on the accusation of being ‘anti-
national’. The putative silverlinings in the Sabrimala judgment, the
abolition and criminalisation of Triple Talaq, the reading down of Sec.
377 to decriminalize sodomy, and the hanging of the accused in the
Jyoti Singh Pandey gang rape and murder, speak to perverse forms of
neoliberal Hindutva populism that use a sophisticated concoction of
rights and revenge to celebrate our democracy. The only rehabilitative
gesture that I can think of is the Delhi Hight Court’s judgment in the
Hashimpura massacre case, which was followed by Justice Muralidhar’s
reprimand of the Delhi Police for failing to file FIRs in the wake of the
North East Delhi riots—only leading to his summary transfer to the
Punjab and Haryana High Court in Chandigargh.
10. I do not privilege experience, or disavow it, and remain attentive to
the relationship between experience and practice of theorizing. See
Joan Scott (1991: 773–97); Guru and Sarukkai (2012); Oksala (2014:
388–403).
11. Spivak (1997: x).
List of Abbreviations

Preface

United Nations (UN)

Indian Penal Code (IPC)
National Democratic Alliance (NDA)
Bharatiya Janata Party (BJP)
United Progressive Alliance (UPA)
Indian National Congress (INC)

Chapter 1

Fundamental rights (FR)

Global economic constitutionalism (GEC)
Aligarh Muslim University (AMU)
Union Carbide Corporation (UCC)
Right to Education Act (RTE)
New Legal Order (NLO)
Armed Forces Special Powers Act (AFSPA)
Supreme Court (SC)
public interest litigations (PIL) social action litigations (SAL)
Teach India (TI)
Oxford University Press (OUP)
xlii List of Abbreviations

Special Police Officers (SPOs)

Chapter 2

Amra Padatik (AP)

Durbar Mahila Samanwaya Committee (DMSC)
Nanhi Kali (NK)
New York Times (NYT)
Immoral Traffic Prevention Act, 1956 (ITPA)
Restore International (RI)
Child Welfare Committee (CWC)
Probation officer (PO)
Indira Gandhi National Open University (IGNOU)

Chapter 3

Central Board of Film Certification (CBFC)

Kai Po Che (KPC)
first information reports (FIR)
chief minister (CM)

Chapter 4

National Legal Services Authority (NALSA)

Rashtriya Swayamsevak Sangh (RSS)
Christopher Street Day (CSD)
Queers Against Israeli Apartheid (QuAIA)
All-India Muslim Law Board (AIMLB)

Chapter 5

Vishwa Hindu Parishad (VHP)

Chapter 7

Krantijyoti Savitribai Phule Women’s Studies Centre (KSPWSC)

Jindal Global Law School (JGLS)
PART I
… THE THEORETICAL …
Another random document with
no related content on Scribd:
tugged at the collar strap. He would not look up from his work,
though he knew that Monty was eyeing him steadily over the sweaty
backs of the horses.
“I’d kill that damned cat if I was you,” Monty exploded with a
venom altogether foreign to his natural manner. “Waddy’d never let it
near the house. He never did and I never knowed why till the other
day.”
Gary had one expression which usually silenced all argument.
Patricia called it his stubborn smile. Dead men who have gone out
fighting sometimes wear that same little smile frozen immutably upon
their features. It was that smile which answered Monty Girard.
Monty looked at him again, puzzled and more than slightly
uneasy.
“Yuh better come along with me,” he said again, persuasively, as
one urges the sick to follow the doctor’s orders.
“No—I think I’ll just stick around for awhile.” Having removed the
collar, Gary gave the horse a slap on the shoulder that sent it off
seeking a soft spot on which to roll.
“Well, for God’s sake, kill that cat! By gosh, it’s enough to drive a
fellow crazy. It’s wrong in the head and—and yuh know it might have
hydrophoby.”
Gary laughed. “Why, I couldn’t keep house without the pinto cat!
That’s great business. Furnishes atmosphere and—er—
entertainment.”
It was perfectly apparent that Gary had some secret reason for
staying. Something which he would not tell Monty Girard, although
the two had become rather good friends. Monty’s face clouded; but
Gary slapped him reassuringly on the shoulder.
“Tell you what you do, old fellow. You draw me a map so I can find
my way over to your place later on. And if one of these horses is any
good under the saddle, I’ll keep him in the corral so I’ll have
something to ride. Now I’ve got hay, the beggar ought to make out all
right.”
Monty had to be content with that and rode away to his own camp
somewhat reluctantly, leaving Gary standing in the doorway of the
cabin, his hands braced against the frame on either side, smoking
and staring after him a bit wistfully.
 CHAPTER FOURTEEN
PATRICIA REGISTERS FURY
Patricia waited a week. One day at the office when she happened
to be alone for half an hour, she jerked the telephone hook off its
shelf and looked up Cohen’s studio number. Inwardly she was
furious. She would be a long time forgiving Gary for forcing her to
speak the first word. She could see no possible excuse for such
behavior, and her voice, when she spoke into the mouthpiece, was
coldly impersonal.
“Will you please tell me where I can get into touch with Mr. Mills’
company?” Patricia might have been calling up the freight office to
put a tracer on a lost shipment of ground barley.
“Mr. Mills’ company is out on location,” replied a voice which
Patricia mentally dubbed snippy.
“I asked you where I could get in touch with Mr. Mills’ company.
This is important.” Patricia spoke into a dead telephone. The snippy
one in Cohen’s office had hung up.
While Patricia was still furious, she wrote a note to Gary. And,
since her chin had squared itself and her head ached and she hated
her job and the laundry had lost the collar to her favorite vestee,
Patricia’s note read like this:
“Los Angeles, Calif.
“June 17, 1921.
“Gary Herbert Marshall,
“Cohen’s Studio,
“Hollywood, Calif.

“Dear Sir:
“Kindly return the papers which you carried off with you a week
ago last night.
 “Very truly,
“P. Connolly.”
Patricia mailed this letter along with a dozen invoices, fourteen
“please remits” and a letter to the main office in Kansas City. She felt
better after she had poked it into the mail box. She could even
contemplate buying a new vestee set without calling the laundry
names.
Patricia waited a week and then called Cohen’s studio again. She
was quite prepared for another snub, and perhaps that is the reason
why she got it. Mr. Mills’ company was on location; and Patricia
could believe that or not, just as she chose. Patricia did not believe
it. She barked a request for Mr. Gary Marshall.
“We do not deliver telephone messages to actors,” the snippy one
informed Patricia superciliously, and hung up before Patricia could
enunciate the scathing retort she had ready.
That night at seven o’clock Patricia called Gary’s apartment. Her
mood was such, when she dialed the number, that a repair man had
to come the next day and replace a broken spring in the instrument.
She held the receiver to her ear a full five minutes and listened to the
steady drone of the bell calling Gary. Had Gary been there to
answer, he would have had a broken engagement within five
minutes to hold him awake nights.
After awhile little Pat Connolly wiped the tears of rage from her
eyes and called the landlady of Gary’s apartment.
The landlady assured her that Mr. Marshall hadn’t been near the
place for two weeks. At least, she had not seen him. He might have
come in late and gone out early—a good many of her tenants did—
and in that case she wouldn’t be so apt to see him. But she hadn’t
noticed him around last Sunday, and most generally she did see him
Sundays because he slept late and if she didn’t see him she was
pretty sure to hear his voice in the hall speaking to some one. She
could always tell Mr. Marshall’s voice as far as she could hear it, it
was so pleasant——
“Oh, my good heavens!” gritted Patricia and followed the example
of the snippy office girl at Cohen’s. She hung up while the landlady
was still talking. Which was not polite of Patricia, but excusable.
 Well, perhaps Gary was out on location. But that seemed strange,
because even after quarrels Gary had never failed to call Patricia up
and let her know that he was leaving town. After quarrels his voice
would be very cool and dignified, it is true; but nevertheless he had
never before failed to let her know that he was leaving town.
Patricia spent another week in mentally reviewing that last
evening with Gary and in justifying herself for everything she had
said to him. Gary really did need to be told the plain truth, and she
had told him. If he wanted to go away and nurse his injured vanity
and sulk, that merely proved how much he had needed the plain
truth told him.
She waited until Friday morning. On Friday, because she had not
heard from Gary, and because she had lain awake Thursday night
telling herself that she was thankful she had found him out in time,
and that it didn’t make a particle of difference to her whether she
ever heard from him or not, Patricia manufactured an errand down
town for her employers. Because she was a conscientious young
woman she attended to the manufactured errand first. Immediately
thereafter she marched into the branch office of the Examiner.
In years Patricia’s chin had never looked so square. She was not
in the habit of wetting her pencil, but now she stood at the ad
counter, licked an indelible pencil defiantly, and wrote this, so
emphatically that the pad was marked with the imprint of the letters
seven pages deep:

WANTED: Man to take charge of small cattle ranch in

Nevada. Open range, living springs, imp. Completely furnished
on shares. Phone 11270 Sun.

Patricia read this over twice with her lips buttoned in tightly. Then
she licked the pencil again—indelibly marking her pink tongue for an
inch down the middle—and inserted just before the ’phone number,
the word “permanent” and drew two lines underneath for emphasis.
This was meant as a trenchant warning to Gary Marshall that he
need not trouble himself any further concerning Patricia’s investment
nor about Patricia herself, for that matter.
 Patricia paid the display ad rate and marched out, feeling as
irrevocably committed to cynical maidenhood as if she had taken the
veil. Men as such were weak, vain creatures who thought to hold the
heart of a woman in the curve of an eyelash. Meaning, needless to
say, Gary Marshall’s eyelash which should not longer hold the heart
of Patricia Connolly.
Patricia’s telephone began ringing at six o’clock on Sunday
morning and continued ringing spasmodically until ten minutes past
twelve, when Patricia dropped the receiver off the hook and let it
dangle, thereby giving the busy signal whenever 11270 was dialed.
For six hours and ten minutes Patricia had felt a definite sinking
sensation in her chest when a strange voice came to her over the
’phone. She would have wanted to murder any one who so much as
hinted that she hoped to hear Gary say expostulatingly, “For heck’s
sake, Pat, what’s the big idea of this ad? I can’t feature it!”
Had she heard that, Patricia would have gloried in telling him, with
the voice that went with the square chin, that she was sorry, but the
place was already taken. Then she would have hung up and waited
until he recovered from that wallop and called again. Then—well,
Patricia had not decided definitely just what she would do, except
that she was still firmly resolved upon being an old maid.
At seven o’clock in the morning the first man called to see her.
Patricia was ready for him, clothed in her office tailored suit and her
office manner. The man’s name was Hawkins, and he seemed much
surprised to find that a young woman owned the “small cattle ranch
in Nevada.”
Hawkins informed Patricia, in the very beginning of their
conversation, that he was a fair man who never yet had cheated any
one out of a nickel. He said that if anything he was too honest, and
that this was the reason why he hadn’t a ranch of his own and was
not independent. He said that he invariably let the other fellow have
the big end of a bargain, rather than have the load on his conscience
that he had possibly not been perfectly square. As to cheating a
woman, well, he hinted darkly that killing was too good for any man
who would take advantage of a woman in a business deal. Hawkins
was so homely that Patricia knew he must be honest as he said he
was. She believed practically everything he said, and by eight
o’clock on a calm Sunday morning, P. Connolly and James Blaine
Hawkins were partners in the ranch at Johnnywater.
James Blaine Hawkins was so anxious that Patricia should have
practically all the profits in the deal, that he dictated terms which he
facetiously urged her never to tell on him; they were so one-sided
(Patricia’s side). Hawkins, in his altruistic extravagance, had
volunteered to devote his time, labor and long experience in cattle
raising, to almost the sole benefit of Patricia. He was to receive
merely two thirds of the increase in stock, plus his living expenses.
For good measure he proposed to donate the use of his car,
charging Patricia only for the gas and oil.
Patricia typed the agreement on her machine, using all the
business phrases she had learned from taking dictation in the office.
The document when finished was a beautiful piece of work,
absolutely letter perfect and profusely decorated with whereases, be
it therefore agreeds and—of course—hereofs, party of the first parts
and party of the second parts. Any lawyer would have gasped over
the reading. But James Blaine Hawkins considered it a marvelous
piece of work and said so. And Patricia was mightily pleased with
herself and drew a sigh of relief when James Blaine Hawkins had
departed with a signed copy of the Patricia-made AGREEMENT OF
CONTRACT in his pocket. Patricia held the original; held it literally
for the next two hours. She read it over and over and couldn’t see
where one word could be changed for the betterment of the
document.
“And what’s the use of haggling and talking and whittling sticks
over a simple thing like this?” Patricia asked a critical world. “Mr.
Hawkins knew what he wanted to do, and I knew what I wanted to do
—and talking for a week wouldn’t have accomplished anything at all.
And anyway, that’s settled, and I’ve got Johnnywater off my mind for
the next five years, thank Heaven. Gary Marshall can go on smirking
the rest of his life if he wants to. I’m sure it’s absolutely immaterial to
me.”
Gary Marshall was so absolutely immaterial to Patricia that she
couldn’t sleep nights, but lay awake telling herself about his absolute
immateriality. She was so pleased over her agreement with James
Blaine Hawkins that her boss twice stopped his dictation to ask her if
she were sick or in trouble. On both occasions Patricia’s glance
turned him red in the face. And her “Certainly not” gave the poor
man a guilty feeling that he must have insulted her somehow.
Patricia formed a habit of walking very fast from the car line to
Rose Court and of having the key to her mail box in her fingers when
she turned in from the street. But she absolutely did not want or
expect to receive a letter from Gary Marshall.
Curiously, Cohen’s telephone number kept running through her
mind when her mind had every reason to be fully occupied with her
work. She even wrote “Hollywood 741” when she meant to write
“Hollister, Calif.” on a letter she was transcribing. The curious feature
of this freak of her memory is that Patricia could not remember firm
telephones that she used nearly every day, but was obliged to keep
a private list at her elbow for reference.
Patricia did not call Hollywood 741. She did, however, write a
second stern request for her papers which Gary had taken away.
On the heels of that, Patricia’s boss—a kindly man in gold-bowed
spectacles and close-cropped whiskers—gave Patricia a terrific
shock when she had taken the last letter of the morning’s
correspondence and was slipping the rubber band over her
notebook.
“Oh, by the way, Miss Connolly, day after to-morrow I leave for
Kansas City. I’m to have charge of the purchasing department there,
and I should like to have you with me if you care to make the
change. The salary will be twenty-five a month more—to start; if the
work justifies it, I think you could safely look forward to another
advance. And of course your traveling expenses will be met by the
firm.”
Patricia twisted her pencil in the rubber band. “My laundry won’t
be back till Friday,” she informed him primly. “But I suppose I can go
out there and pay for it and have it sent on by mail. What train are
you taking, Mr. Wilson?”
In this manner did the dauntless Patricia meet the shock of
opportunity’s door slamming open unexpectedly in her face. Patricia
did not know that she would like Kansas City. She had a vague
impression of heat and cyclones whenever she thought of the place.
But it seemed to her a Heaven-sent chance to show Gary Marshall
just how immaterial he was in her life.
She debated the wisdom of sending back Gary’s ring. But the
debate did not seem to get much of anywhere. She left for Kansas
City with the ring still on her finger and the hope in her heart that
Gary would be worried when he found she was gone, and would try
to find her, and would fail.
And Providence, she told herself confidently, had surely been
looking after her all along and had sent James Blaine Hawkins to
take that darned Johnnywater white elephant off her hands just
nicely in time for the boss to offer her this change. And she didn’t
care how much she hated Kansas City. She couldn’t hate it half as
much as she hated Los Angeles.
It merely illustrates Patricia’s firmness with herself that she did not
add her reason for hating Los Angeles. In May she had loved it
better than any other place on earth.
 CHAPTER FIFTEEN
“WHAT’S THE MATTER WITH THIS PLACE?”
With his beautifully typed AGREEMENT OF CONTRACT in his
inner coat pocket, and two hundred dollars of Patricia’s money in his
purse, James Blaine Hawkins set out from Los Angeles to drive
overland to Johnnywater, Nevada. He knew no more of Johnnywater
than Patricia had told him, but he had worked through three haying
seasons on a big cattle ranch in King County, California, and he felt
qualified to fulfill his share of the agreement, especially that clause
concerning two thirds of the increase of the stock and other profits
from the ranch.
James Blaine Hawkins belonged to that class of men which is
tired of working for wages. A certain percentage of that class is
apparently tired of working for anything; James Blaine Hawkins
formed a part of that percentage. His idea of raising range cattle was
the popular one of sitting in the shade and watching the cattle grow.
In all sincerity he agreed with Patricia that one simply cannot lose
money in cattle.
I am going to say right here that James Blaine Hawkins owned
many of the instincts for villainy. He actually sat in Patricia’s trustful
presence and wondered just how far the law protected an absent
owner of squatter’s rights on a piece of unsurveyed land. He thought
he would look it up. He believed that the man who lives on the place
is the real squatter, and that Waddell, in leaving Johnnywater, had
legally abandoned the place and had no right to sell his claim on it to
Patricia or any one else.
James Blaine Hawkins did not look Patricia in the eyes and
actually plan to rob her of Johnnywater, but he did sit there and
wonder who would have the best title to the place, if he went and
lived there for a year or two, and Patricia failed to live there at all. To
James Blaine Hawkins it seemed but common justice that the man
who lived on a ranch so isolated, and braved the hardships of the
wilderness, should acquire unqualified title to the land. He did not
discuss this point, however, with Patricia.
Patricia’s two hundred dollars had been easily obtained as an
advance for supplies, which, under the terms of the contract, Patricia
was to furnish. So James Blaine Hawkins was almost enthusiastic
over the proposition and couldn’t see why three or four years at the
most shouldn’t put him on Easy Street, which is rainbow’s end for all
men of his type.
He made the trip without mishap to Las Vegas, and was fortunate
enough to find there a man who could—and did—give him explicit
directions for reaching Johnnywater. And along about four o’clock on
the afternoon of the fourth day, Patricia’s new partner let down a new
wire gate in the mended fence across the cañon just above the water
hole, and gazed about him with an air of possession before he got
into the car and drove on to the cabin. He did not know, of course,
that the gate was very new indeed, or that the fence had been
mended less than a week before. He was therefore considerably
astonished when a young man with his sleeves rolled to his elbows
and the wind blowing through his hair came walking out of the grove
to meet him.
James Blaine Hawkins frowned. He felt so much the master of
Johnnywater that he resented the sight of a trespasser who looked
so much at home as did Gary Marshall. He grunted a gruff hello in
response to Gary’s greeting, drove on into the dooryard and killed
his engine.
Gary turned back and came close to the car. He was rather quick
at reading a man’s mood from little, indefinable signs which would
have been overlooked by another man. Something in the general
attitude of James Blaine Hawkins spelled insolence which Gary
instinctively challenged.
“Are you lost?” Gary asked rather noncommittally. “You’re pretty
well off the beaten track, you know. This trail ends right here.”
“Well, that suits me. Right here is where I headed for. Might I ask
what you’re doing here?”
“Why, I suppose you might.” Now that Gary had taken a good look
at James Blaine Hawkins, he did not like him at all.
 James Blaine Hawkins waited a reasonable time for Gary to say
what he was doing in Johnnywater Cañon. But Gary did not say. He
was rolling a cigarette with maddening precision and a nonchalant
manner that was in itself an affront; or so James Blaine Hawkins
chose to consider it.
“Well, damn it, what are you doing here?” he blurted arrogantly.
James Blaine Hawkins was of the physical type which is frequently
called beefy. His red face darkened and seemed to swell.
“I? Why, I’m stopping here,” drawled Gary. “What are you doing
here?”
James Blaine Hawkins leaned against the side of the car, folded
his arms and spat into the dust. Then he laughed.
“I’m here to stay!” he announced somewhat pompously. “I don’t
reckon it’s any of your business, but I’ve got a half interest in this
place—better ’n a half interest. I got what you might call a straight
two thirds interest in everything. Two thirds and found.” He laughed
again. “So, I guess mebby I got a right to know why you’re stopping
here.”
Not for nothing was Gary Marshall an actor. When he learned to
portray emotion before the camera, he also learned to conceal
emotion. Not even Patricia in her most suspicious mood could have
discovered how astonished, how utterly taken aback Gary was at
that moment.
He lighted his cigarette, blew out the match and flipped it from
him. He took three long, luxurious inhalations and studied James
Blaine Hawkins more carefully from under the deep-fringed
eyelashes that had helped to earn him a living. Patricia, he
perceived, had been attacked by another “wonderful” idea. Though it
seemed rather incredible that even the impulsive Patricia should
have failed to read aright a man so true to type as was James Blaine
Hawkins.
“Well, I’ve saved you a few tons of alfalfa hay,” Gary observed
carelessly. “Fellow I was with left me here while he went on to
another camp. I found Waddell gone, and my friend hasn’t come
after me yet. So I’m stuck here for the present, you see. And
Waddy’s hay needed cutting, so I cut it for him. Had to kill time
somehow till he gets back.” Gary blew a leisurely mouthful of smoke.
“Isn’t Waddell coming back?” he asked with exactly the right degree
of concern in voice and manner.
James Blaine Hawkins studied that question for a minute. But he
could see nothing to doubt or criticize in the elucidation, so he
decided to accept it at face value. He failed to see that Gary’s
explanation had been merely suggested.
“Waddell, as you call him, has sold out to a girl in Los Angeles,”
James Blaine Hawkins explained in a more friendly tone. “I got an
agreement here to run the place on shares. I don’t know nothing
about Waddell. He’s out of it.”
Gary’s eyebrows lifted slightly in what the camera would record as
his terribly worried expression.
“He isn’t—in the—er—asylum, is he? Was I too late to save poor
Waddy?”
James Blaine Hawkins looked blank.
“Save him from what? What yuh talkin’ about, anyway?”
Gary opened his lips to answer, then closed them and shook his
head. When he really did speak it was quite plain to James Blaine
Hawkins that he had reconsidered, and was not saying as much as
he had at first intended to say.
“If you’re here to stay, I hope you’ll be all right and don’t have the
same thing happen to you that happened to Waddy,” he said
cautiously. “I think, myself, that Waddell had too keen an
imagination. He was a nervous cuss, anyway; I really don’t think
you’ll be bothered.”
“Bothered with what?” James Blaine Hawkins demanded
impatiently. “I can’t see what you’re driving at.”
Gary gave him a little, secretive smile and the slight head-shake
that always went with it on the screen.
“Well, I sure hope you never do—see.” And with that he
deliberately changed the subject and refused artfully to be led back
toward it.
He went in and started the fire going, saying that he knew a man
couldn’t drive out from Las Vegas without being mighty hungry when
he arrived. He made fresh coffee, warmed over his pot of Mexican
beans cooked with chili peppers, and opened a can of blackberry
jam for the occasion. He apologized for his biscuits, which needed
no apology whatever. He went down to the creek and brought up the
butter, bewailing the fact that there was so little of it. But then, as he
took pains to explain again, he had not expected to stay so long
when he arrived.
James Blaine Hawkins warmed perceptibly under the good-
natured service he was getting. It was pleasant to have some one
cook his supper for him after that long drive across the desert and it
was satisfying to his vanity to be able to talk largely of his plans for
running Johnnywater ranch at a profit. By the time he had mopped
up his third helping of jam with his fourth hot biscuit, James Blaine
Hawkins felt at peace with the world and with Gary Marshall, who
was a fine young man and a good cook.
“Didn’t make such a bad deal with that girl,” he boasted, leaning
back against the dish cupboard and heaving a sigh of repletion.
“Kinda had a white elephant on her hands, I guess. Had this place
here and nobody to look after it. Yes, sir, time I’d talked with her
awhile, she was ready to agree to every damned thing I said. Got my
own terms, ab-so-lute-ly. Five years’ contract, and two thirds the
increase of stock—cattle and horses—two thirds of all the crops—
and found!”
“Get out!” exclaimed Gary, and grinned when he said it. “I suppose
there are such snaps in the world, but I never saw one. She agreed
to that? On paper?”
“On paper!” James Blaine Hawkins affirmed solemnly. He reached
into his coat pocket (exactly as Gary had meant that he should).
“Read it yourself,” he invited triumphantly. “Guess that spells Easy
Street in less than five years. Don’t it?”
“It’s a bird,” Gary assured him heartily. Then his face clouded. He
sat with his head slightly bowed, drumming with his fingers on the
table, in frowning meditation.
“What’s wrong?” James Blaine Hawkins looked at him anxiously.
“Anything wrong with that contract?”
Gary started and with a noticeable effort pulled himself out of his
mood. He laughed constrainedly.
 “The contract? Why, the contract’s all right—fine. I was just
wondering——” He shook his shoulders impatiently. “But you’ll be all
right, I guess. A man of your type——” He forced another laugh. “Of
course it’s all right!”
“You got something on your mind,” James Blaine Hawkins
challenged uneasily. “What is it? You needn’t be afraid to tell me.”
But Gary forced a laugh and declared that he had nothing at all on
his mind. And by his very manner and tone James Blaine Hawkins
knew that he was lying.
The mottled cat hopped upon the doorstep, hesitated when she
saw James Blaine Hawkins sitting there, then walked in demurely.
“Funny-looking cat,” James Blaine Hawkins commented
carelessly.
Gary looked up at him surprisedly; saw the direction of his glance,
and turned and looked that way with a blank expression of
astonishment.
“Cat? What cat?”
“That cat! Hell, can’t you see that cat?” James Blaine Hawkins
leaned forward excitedly.
Gary’s glance wandered over the cabin floor. Toward Faith, over
Faith and beyond Faith. He might have been a blind man for all the
expression there was in his eyes. He turned and eyed James Blaine
Hawkins curiously.
“You mean to say you—you see a cat?” he asked solicitously.
“Ain’t there a cat?” James Blaine Hawkins half rose from his seat
and pointed a shaking finger. “Mean to tell me that ain’t a cat walkin’
over there to the bunk?”
Gary looked toward the bunk, but it was perfectly apparent that he
saw nothing.
“Waddell used to see—a cat,” he murmured regretfully. “There
used to be a cat that belonged to a man named Steve Carson, that
built this cabin and used to live here. Steve disappeared very
mysteriously awhile back. Five years or so ago. Ever since then——”
He broke off suddenly. “Really, Mr. Hawkins, maybe I hadn’t better
be telling you this. I didn’t think a man of your type would be
bothered——”
 “What about it?” A sallow streak had appeared around the mouth
and nostrils of James Blaine Hawkins. “Yuh needn’t be afraid to go
on and tell me. If that ain’t a cat——”
“There was a cat, a few years back,” Gary corrected himself
gently. “There was the cat’s master, too. Now—they say there’s a
Voice—away up on the bluff, that calls and calls. Waddell—poor old
duffer! He used to see Steve Carson—and the cat. It was, as you
say, a funny-looking cat. White, I believe, with black spots and
yellowish-brown spots. And half of its face was said to be white, with
a blue eye in that side.”
Gary leaned forward, his arms folded on the table. His voice
dropped almost to a whisper.
“Is that the kind of a cat you see?” he asked.
James Blaine Hawkins got up from the bench as if some
extraneous force were pulling him up. His jaw sagged. His eyes had
in them a glassy look which Gary recognized at once as stark terror.
A cold feeling went crimpling up Gary’s spine to his scalp.
James Blaine Hawkins was staring, not at the cat lying curled up
on the bunk, but at something midway between the bunk and the
door.
Gary could see nothing. But he had a queer feeling that he knew
what it was that James Blaine Hawkins saw. The eyes of the man
followed something to the bunk. Gary saw the cat lift its head and
look, heard it mew lazily, saw it rise, stretch itself and hop lightly
down. He saw that terrified stare of James Blaine Hawkins follow
something to the open doorway. The cat trotted out into the dusky
warmth of the starlit night. It looked to Gary as if the cat were
following some one—or some thing.
James Blaine Hawkins relaxed, drew a deep breath and looked at
Gary.
“Did you see it?” he whispered, and licked his lips.
Gary shivered a little and shook his head. The three deep creases
stood between his eyebrows, and his lips were pressed together so
that the deep lines showed more distinctly beside his mouth.
“Didn’t yuh—honest?” James Blaine Hawkins whispered again.
 Again Gary shook his head. He got up and began clearing the
table, his hands not quite steady. He lifted the dented teakettle, saw
that it needed water and picked up the bucket. He hesitated for an
instant on the doorstep before he started to the creek. He heard a
scrape of feet behind him on the rough floor and looked back. James
Blaine Hawkins was following him like a frightened child.
They returned to the cabin, and Gary washed the dishes and
swept the floor. James Blaine Hawkins sat with his back against the
wall and smoked one cigarette after another, his eyes roving here
and there. They did not talk at all until Gary had finished his work
and seated himself on the bunk to roll a cigarette.
“What’s the matter with this damn place, anyway?” James Blaine
Hawkins demanded abruptly in that tone of resentment with which a
man tacitly acknowledges himself completely baffled.
Gary shrugged his shoulders expressively and lifted his eyebrows.
“What would you say was the matter with it?” he countered. “I
know that one man disappeared here very mysteriously. An Indian,
so they tell me, heard a Voice calling, up on the bluff. He died soon
afterwards. And I know Waddell was in a fair way to go crazy from
staying here alone. But as to what ails the place—one man’s guess
is as good as another man’s.” He lighted his cigarette. “I’ve quit
guessing,” he added grimly.
“You think the cabin’s haunted?” James Blaine Hawkins asked
him reluctantly.
Again Gary shrugged. “If the cabin’s haunted, the whole darn
cañon is in the same fix,” he stated evenly. “You can’t drag an Indian
in here with a rope.”
“It’s all damn nonsense!” James Blaine Hawkins asserted
blusteringly.
Gary made no reply, but smoked imperturbably, staring
abstractedly at the floor.
“Wherever there’s a spook there’s a man at the back of it,”
declared James Blaine Hawkins, gathering courage from the
continued calm. “That was a man I seen standin’ by the bunk. Felt
slippers, likely as not—so he wouldn’t make no noise walkin’. He
likely come in when I wasn’t looking. And yuh needn’t try to tell me,”
he added defiantly, “that wasn’t no cat!”
Gary turned his head slowly and looked at James Blaine Hawkins.
“If there was a cat,” he argued, “why the heck didn’t I see it?
There’s nothing wrong with my eyes.”
“I dunno why you never seen it,” James Blaine Hawkins retorted
pettishly. “I seen it, plain as I see you this minute. Funny you never
seen it. I s’pose you’ll say next yuh never seen that man standin’
there by the bunk! He went outside, and the cat follered him.”
Gary looked up quickly. “I didn’t see any man,” he said gravely.
“There wasn’t any man. I think you just imagined it. Waddell used to
imagine the same thing. And he used to see a cat. He particularly
hated the cat.” James Blaine Hawkins gave a gasp. Gary looked at
him sharply and saw that he was once more staring at the empty air
near the door. The cat had come in again and was gazing
questioningly about her as if trying to decide where she would curl
herself down for a nap. The eyes of James Blaine Hawkins pulled
themselves away from the terrifying vision near the door, and turned
toward Faith. He gave a sudden yell and rushed out of the cabin.
Faith ran and jumped upon the bunk, her tail the size of a bologna
sausage. Gary got up and followed James Blaine Hawkins as far as
the door.
“Look out you don’t hear the Voice, Mr. Hawkins,” he said
commiseratingly. “If I let my imagination get a fair running start, I
couldn’t stay in this cañon over night. I’d be a plain nut inside twenty-
four hours.”
James Blaine Hawkins was busy cranking his car. If he heard
Gary speak he paid no attention. He got a sputter from the engine,
rushed to the wheel and coaxed it with spark and gas-lever,
straddled in over the side and went careening away down the trail to
the open desert beyond.
Faith came inquisitively to the door, and Gary picked her up in his
hands and held her, purring, against his face while he stroked her
mottled back.
“I think you’ve saved little Pat Connolly a darned lot of trouble,” he
murmured into the cat’s ear. “Thrashing that bird wouldn’t have had
half the effect.”
 CHAPTER SIXTEEN
“THERE’S MYSTERY HERE——”
“Dear Pat:—
“In God’s name, what were you thinking of when you sent this
fellow Hawkins over here with a five years’ contract? Couldn’t you
see the man’s a crook? Are the lawyers in Los Angeles all dead, that
you couldn’t call one up on the ’phone and ask a question or two
about letting places on shares? Of course you’d want to write the
contract yourself. Perfect Patricia is the little lady that invented
brains! If she doesn’t know all there is to know in the world, she’ll go
as far as she does know and fake the rest.
“Permit me to congratulate you, Miss Connolly, upon the artistic
manner in which you handed over to James Blaine Hawkins the best
imitation of a legacy that I ever saw! Of course you’d have to invent a
new way of having your pocket picked. Two thirds and found! My
word!
“Any ordinary, peanut-headed man would have given the usual
one half of increase in stock, and the old stock made good at the end
of the term of contract. And not found, Pat! No one but you would
ever dream of doing a thing like that. And he says you agreed to buy
his gas and oil. Pat, if ever a girl needed some one to look after her,
you’re that small person. And he bragged about it—the dirty whelp.
Laughed at the way you met his terms and thought they were all
right!
“He never came nearer a licking in his life and missed it, Pat. But I
had another scheme, and I didn’t want to gum it up by letting on I
knew you. I had to sit pretty and let him brag, and register admiration
for the rotter. He’s gone now—it worked. But he’ll come back—to-
morrow, when the sun is shining and his blood thaws out again. I
may have to lick him yet. If he were a white man, with the
intelligence of a hen turkey, I could play the joker and make him lay