‘The Irregular’ and the Unmaking of Minority Citizenship: The Rules of Law in Majoritarian India
| Published date | 01 October 2024 |
| DOI | http://doi.org/10.1177/09646639241238427 |
| Author | M Mohsin Alam Bhat |
| Date | 01 October 2024 |
| Subject Matter | Special Issue: The Rule(s) of Law under HindutvaEdited by M. Sudhir Selvaraj, University of Bradford, UK and Raphael Susewind, London School of Economics, UKArticles |
‘The Irregular’and the
Unmaking of Minority
Citizenship: The Rules of
Law in Majoritarian India
M Mohsin Alam Bhat
Queen Mary University of London, UK
Abstract
This article focuses on the important aspect of India’s democratic decline, the ascen-
dance of the Hindu majoritarian state, and its relationship with the law. It argues that
the law is central to the Hindu majoritarian project but often in obscurely informal
ways. India’s majoritarian state seeks to radically reconfigure the law in Indian social
life by making the rule of law inapplicable to its minorities. Through a series of examples
drawn from the everyday socio-legal life in contemporary India, the article shows how
arbitrary and extralegal state violence is endorsed, affirmed, and acquiesced on grounds
of serving ethnonationalist values and interests. It theoretically develops the novel inter-
pretive framework of ‘the irregular’to capture the practices of the ethnicization of the
law, ethnonationalist legitimisation of extra-legality through intense political mobilisation,
and the production of subordinated minority citizenship without the formal incorpor-
ation of graded citizenship.
Keywords
India, minorities, autocratic legalism, democratic decline, autocratization, rule of law,
subordination, Muslims, Hindu Nationalism, Modi
Corresponding author:
M Mohsin Alam Bhat, School of Law, Queen Mary University of London, Mile End Road, London,
United Kingdom.
Email: m.bhat@qmul.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(5) 690–721
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639241238427
journals.sagepub.com/home/sls
Introduction
We are today witnessing a global pattern of democratic “decline”and “recession”
(Diamond, 2015; Lührmann and Rooney, 2021). Countries that until recently were con-
sidered relatively established and well-functioning democracies are sliding on several
parameters of democratic rule. These include the drastic weakening of democratic
accountability, the rule of law, free and fair elections, and liberal rights. The rise of popu-
list and autocratic leaders has been one of the key drivers of this phenomenon.
Authoritarian leaders and parties have emerged and entrenched themselves not through
the traditional routes of displacing elections, but through slow but definite erosion
(Levitsky and Ziblatt, 2018) of democratic constitutional mechanisms that “aggrandize”
the executive (Bermeo, 2016). Countries undergoing this phenomenon now sit rather
uneasily in the category of ‘democracies’and are arguably better classified as hybrid pol-
ities that combine elements of electoral and autocratic rule.
India has increasingly become one of the central case studies of this trend. The election
of Prime Minister Narendra Modi and the Bhartiya Janata Party (BJP) in 2014 and the
return with a more robust mandate in 2019 has established them as the principal political
force in India. India is now in a “dominant party system”(Chhibber and Verma, 2019)
where the BJP commands an unparalleled influence over the national political discourse
and policy agenda, and other parties have a considerably diminished opportunity of dis-
placing Modi. The BJP’s electoral consolidation is associated with several undesirable
patterns in India’s political and social life, most significantly the further weakening of
accountability institutions, the undermining of independent civil society and media, the
surging sectarian tensions and visibly rising anti-minority violence, and an overall
sliding in democratic parameters. Reputed democracy indexes and surveys have started
classifying India not as a “democracy”but as a “flawed democracy”and an “electoral
autocracy”(EIU, 2024; V-Dem, 2023).
The law is important in these processes of democratic decline globally and in India.
Like other instances of autocratic regimes abusing the law to politically entrench them-
selves (Scheppele, 2018; Landau, 2013), the Modi regime has undermined democratic
rule through incremental, systematic, and subtle legal measures.
This article contributes to this conversation about the character of India’sdemocratic
decline and its relationship with the law. It focuses onone important facet of the country’s
democratic crisis: the consolidation of Hindu nationalism to “establish a majoritarian state
in India”(Chatterji et al., 2021). The rise of authoritarian forms of rule in India is funda-
mentally linked with the longer historic Hindu nationalist ideological project of constitut-
ing a Hindu majoritarianstate. The BJP is the electoral face of a large ecosystem of Hindu
supremacist organisations, principally the Rashtriya Swayamsevak Sangh (RSS), commit-
ted to the Hindutva ideology that seeks socio-political domination of Hindu ethnonation-
alist interests and values. For this ideology, the minorities especially India’s Muslims are
considered outsidersat best and enemies at worst. The politicaldominance of Modi and the
BJP thus marks the ascendance of India’s majoritarian state. AsI subsequently describe in
detail, this has led many scholars to increasingly describe India as an ethnic state.
What is the relationship between this ascendant majoritarian state and the law? In the
incipient conversation on this question, some have suggested that the majoritarian project
Bhat 691
only seeks to reinterpret and rework existing constitutional norms in service of its polit-
ical aims of deepening minority social and political marginalisation (Singh, 2019). This
gives the impression that the law is marginal to the Hindu majoritarian project. This also
suggests that there is no fundamental—or to the very least, irreconcilable—tension
between the project and India’s constitutional norms (Ahmed, 2021). Others have
argued that India today is primarily a de facto ethnic democracy, but the enactment of
certain discriminatory laws has started paving the way for a de jure ethnic democracy
(Jaffrelot, 2021b, 155; Adeney, 2021). Formally legislated policies and their partisan
legal enforcement indicate the incorporation of graded citizenship.
This article diverts from these approaches to understand the relationship between
India’s ascendant majoritarian state and the law. It proposes that the law is central to
the majoritarian project in India today –and not always in recognisably formal ways.
Majoritarian political strategies do not merely rework or instrumentalise the law, or
rely only on formal legality. Rather, they seek to radically reconfigure the rule of law
in India’s socio-legal life. I argue that “Hindutva statecraft”(Hansen and Roy, 2022) pro-
foundly relies on insidious practices of arbitrary violence against minorities that make
democratic constitutional discourse of justification and accountability irrelevant to
them. There is a growing pattern of the state exercising everyday violence against minor-
ities, ostensibly under the cover of law, in arbitrary and authoritarian fashion. This arbi-
trary violence is legitimised through intense Hindutva politicisation, and affirmed and
endorsed by state institutions—often including the courts—on grounds of preserving eth-
nonationalist interests and values. These practices of majoritarian violence and their eth-
nonationalist endorsement institutionalise autocratic and arbitrary power in relation to the
minorities. Minority subordination produced by these strategies may often be obscure for
many observers because it does not entail the formal incorporation of graded citizenship
and is intricately entangled in legalese. Nevertheless, the experience of subordination is
profound for minorities since it involves being perennially under the threat of arbitrary
violence without any meaningful recourse to legal institutions.
This article offers a new theoretical perspective to understand how the law is impli-
cated in the Hindu majoritarian project in this manner. It develops the interpretive frame-
work of ‘the irregular’. As I elaborate further, the irregular captures how the state’s
exercise of extralegal violence against minorities comes to be affirmed, endorsed, and
acquiesced through the practices of ethnicization and ethnonationalist legitimisation.
The irregular shows that India’s majoritarian project not only uses and abuses the law.
It seeks to fundamentally delimit the rule of law.
The article starts with situating the argument within the contemporary debates on
India’s democracy. It presents a pluralistic perspective to understand the different dimen-
sions of India’s democratic crisis, and how the electoral ascendance of the BJP is threa-
tening fundamental values and norms of India’s institutional, political, and social life.
The next section introduces the framework of the irregular using the example of citizen-
ship dispossession in the Indian state of Assam. The article proceeds to delineate the the-
oretical antecedents and promise of this framework. The article then provides two further
illustrations of the irregular drawing from the recent controversies involving zonal regu-
lations and control over religious monuments. Being outside the legal fields of terrorism
and national security law that are often associated with state excesses, these illustrations
692 Social & Legal Studies 33(5)
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