Totalitarian Law and Communal Ghettoisation: An Arendtian Perspective
| Published date | 01 October 2024 |
| DOI | http://doi.org/10.1177/09646639241266756 |
| Author | Fahad Zuberi,Raphael Susewind |
| 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 |
Totalitarian Law and
Communal Ghettoisation:
An Arendtian Perspective
Fahad Zuberi
University of Oxford, UK
Raphael Susewind
London School of Economics & Political Science,
London, UK
Abstract
How are legal institutions and frameworks exploited to create ghettoised communities
in contemporary India? Across three case studies –the Disturbed Areas Act in Gujarat,
the ‘bulldozer justice’phenomenon of 2022, and the BJP’selectoral‘land jihad’rhetoric –
we argue that law, far from being a liberal bulwark against majoritarianism, increasingly
comes to encapsulate raw power, unencumbered by either morality or fact. We theorise
this phenomenon through Hannah Arendt’s argument that the seeds of totalitarianism
lie in the hollowing-out, depoliticising effect of ‘juridification’, paving the way for totali-
tarianism to fill the affective void. But what happens to law once the threshold to totali-
tarianism is crossed? In contemporary India, we argue, the depoliticising, technocrati c
kind of law that Arendt described is not the only legal pathology; we also witness the
emergence of a novel kind of hyper-politicised, performative, signalling, ultimate mean-
ingless law that she didn’t quite anticipate. It is the dialectic between these two legal
pathologies –juridification as bureaucratisation and hyper-politicised signalling –that
cements Muslim Indians’increasingly precarious ghettoisation.
Keywords
India, ghettoisation, totalitarianism, Hannah Arendt
Corresponding author:
Fahad Zuberi, Oxford School of Global Area Studies, University of Oxford, 13 Bevington Rd, Oxford OX2
6LH, UK.
Email: fahad.zuberi@some.ox.ac.uk
Article
Social & Legal Studies
2024, Vol. 33(5) 748–766
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639241266756
journals.sagepub.com/home/sls
How are legal institutions and frameworks exploited to create ghettoised communities in
contemporary India? Across three case studies –the Disturbed Areas Act in Gujarat, the
‘bulldozer justice’phenomenon of 2022, and the BJP’selectoral‘land jihad’rhetoric –we
argue that law, far from being a liberal bulwark against majoritarianism, increasingly
comes to encapsulate raw power, unencumbered by either morality or fact. We theorise
this phenomenon through Hannah Arendt’s writing about the centrality of law for totali-
tarian projects, and specifically her argument that the seeds of totalitarianism lie in the
hollowing-out, depoliticising effect of ‘juridification’. While juridification first describes
a necessary and liberally hopeful process –the emergence of autonomous, professional
law as a check on executive power –Arendt warns us that such juridification inevitably
also engenders ‘politische Erfahrungslosigkeit’(lack of political experience), as citizens
unlearn how to act together towards public purpose, delegating instead to the courts.
Juridification, Arendt points out, is thus precisely what paves the way for populist/
authoritarian (or, in her terminology, totalitarian) politics: once social relations become
depoliticised and juridified to the extent she describes, totalitarianism easily fills the
affective void. However, what happens to law once the threshold of totalitarianism is
crossed? In contemporary India, we argue that the depoliticising, technocratic kind of
law that Arendt described is not the only legal pathology; we also witness the emergence
of a novel kind of hyper-politicised, performative, signalling, and ultimate meaningless
law that she did not anticipate. This kind of law doesn’t actually result in court cases, liti-
gation or other juridifiying attempts to regulate conflict, but directly appeals to populist
affect and at best lends a mantle of legitimacy to vigilante ‘justice’or violent state
action. It is the dialectic between these two legal pathologies –juridification as bureau-
cratisation and hyper-politicised signalling –that cements Muslim Indians’increasingly
precarious ghettoisation.
To address this argument, we develop three case studies. In the Indian state of Gujarat,
an arguably unconstitutional and authoritarian piece of legislation –The Disturbed Areas
Act (DAA), 1991 –has long restricted inter-communal exchange of immovable property
and created stark communal segregation in cities acr oss the state (Tejani, 2022). In our first
case study, we demonstrate how this law emerged in a period of neoliberal urban govern-
ance as an almost ideal-typical example of what Arendt had in mind when talking about
juridification –i.e., the technocratic depoliticisation of social conflict –but is increasingly
used in novel ways quite contrary to original policy intent: in areas more recently declared
as ‘disturbed’we see the new middleclasses, apolitical and ‘politisch erfahrungslos’, obedi-
ent to authorityand broadly aligned with the Hindunationalist project, utilising the DAA to
ensure maximumdistance from various ‘others’.Thelawhasflipped from a tool for defus-
ing conflict into an instrument to structurally cement Muslim ghettoisation.
Recently, in a situation that the popular press referred to as ‘bulldozer justice’, the
Indian state has started to demolish the homes of activists in connection with political pro-
tests as well as in an increasingly indiscriminate manner, the homes of Muslims living in
the vicinity of violence affected areas, often rendering them double victims of first vigi-
lante mobs and subsequently state terror and collective punishment. This is our second
case study. ‘Bulldozer justice’demolitions are typically carried out with no consideration
for due process, and by selectively enforcing arcane municipal bye-laws and building
codes that are otherwise routinely ignored. In Jahangirpuri, New Delhi, for instance,
Zuberi and Susewind 749
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