1. Introduction
The transformation of the socio-legal order of India, marked by new authoritarian forms of legality, has raised urgent questions about the majoritarian turn in law and society. On the eve of its Constitution’s 75th anniversary (Muralidhar, Reference Muralidhar2025), the citizenship law was restructured by the Citizenship Amendment Act, 2019 (hereafter, CAA), Article 370 that provided special autonomous status to the State of Jammu and Kashmir was abrogated in 2019, and the penal code replaced by the Bharatiya Nyaya Sanhita, 2023 (hereafter, BNS) expanded the use of repressive power against dissent. While the changes in the penal code were celebrated as “de-colonising” the legal order, these re-colonise law and society by expanding the field of state impunity, aligning with what has been called “autocratic legalism” elsewhere.
When discussing the global advance of what has been termed illiberal democracy, authoritarian populism, or neo-fascism and the new legal forms that institutionalise these orders, much attention has been given to such top-down legislative and executive changes. “Autocratic legalism,” the term that Kim Lane Scheppele (Reference Scheppele2018) proposed, drew attention to the decisions and legislative acts of political authorities around the world instituting “illiberal” regimes in which constitutional norms were altered through executive verdicts, the division of powers were skewed towards the executive, and civil rights were reduced (see, e.g., Wolf, Reference Wolf2024).
In India, too, the consolidation of the idea of the Hindu Rashtra (literally, Hindu nation-state) has been accompanied by what scholars have identified as autocratic legalism, in the form of legislative fiats, as well as in the use of the courts to normalise majoritarian nationalist briefs and the use of procedure to destroy institutions (see Lazzaretti and Jacobsen, Reference Lazzaretti and Jacobsen2024).Footnote 1 The increasing consolidation of majoritarian legality, even as it is challenged by prolific litigation in courts,Footnote 2 has been characterised by Tarunabh Khaitan as “killing a constitution by a thousand cuts” (Khaitan, Reference Khaitan2020). Such “jurispathic” modes of mal-governance (Cover, Reference Cover1986) that hollow out law and constitutional secularism has increased the importance of courts in defining communities, identities, and the very question of citizenship.Footnote 3 While legislative changes have been prepared by more subtle but long-standing transformations of political relations, the courts have become important sites for contesting the transformation of the socio-legal order of India (see Bhat, Reference Bhat, Chan, Khosla, Liebman and Tushnet2025; Bhatia, Reference Bhatia2025; Jayal, Reference Jayal2022; Chatterji, Hansen and Jaffrelot, Reference Chatterji, Hansen and Jaffrelot2019).
In this Special Issue (hereafter, SI), we argue that in order to grasp better the processes at work in establishing and securing the legal orders emerging in many polities around the world, we must attend to the co-production of these forms of legality. Speaking of “autocratic acts” suggests a top-down process of already constituted authority that conceals the social preparation of such legislative change. To speak simply of “authoritarian” orders equally obscures the selectivity of restrictions of rights, since many of these orders are in many fields and for many of their citizens still liberal. We therefore speak of the making of majoritarian legality.
This raises the question of continuity and change. In India, arguments for both—the current moment constituting a radical rupture, as well as it representing incremental continuities—are often put forth. On the one hand, scholars argue that the continuous partisan employment of laws on behalf of ruling parties and dominant elites has a long history leading as far back as to the colonial origins of many of India’s laws, a historical legacy that actually has made legal reform unnecessary for current purposes (Bhuwania, Reference Bhuwania2024; John, Reference John2024; Srivastava, Reference Srivastava2023; Duschinski and Ghosh, Reference Duschinski and Ghosh2017; Balachandran, Pant and Raman, Reference Balachandran, Pant and Raman2018; De, Reference De2018; Singh, Reference Singh2003).Footnote 4 On the other hand, we hear the proposition that we are observing a fundamental break with the constitutional values and secular traditions, a novel normative, legal, and political rupture that, irrespective of the problems that previous orders held, brings about a qualitatively new order (Narrain, Reference Narrain2021). Niraja Gopal Jayal, for instance, argues that this project of “re-forming” the nation “implied a radical break,” and “anchored in a fundamental re-visioning of India in social, cultural and moral terms” (Jayal, Reference Jayal2019, p. xii; also see Sircar, Reference Sircar2024). For some scholars, the making of the Constitution was already marked by early Hindutva, while for other analysts, this political project is deeply contested and far from complete (see John, Reference John2024; Tella, Reference Tella2025).
Both propositions are right in their own way: The currently emerging order has its base, its possibility, and its precedents in long-standing legal and political culture, both in colonial laws, and in postcolonial adoption thereof.Footnote 5 At the same time, however, its current emanation is not always simply continuing authoritarian aspects of former employments of India’s laws, but inaugurates a new legitimating ideology, practices of impunity, and meaning-making in law. We argue that this produces a new raison d’état, of which the partisan use of laws, the authoritarian oppression of dissent through existing laws, and the inauguration of differential citizenship regimes are integral elements. Thereby, a dual law situation is elevated from the level of misuse and abuse of means to the actual purpose of the state, the raison d’état being the establishment of a Hindu majoritarian nation-state.
2. Majoritarian legality
To understand the very possibility of such socio-legal changes, as well as their concrete operation, we need to probe into the diverse complicities that make possible, produce, and preserve the foundational violence of the majoritarian turn in law and society. The label “autocratic” then appears to distract from the democratic—albeit majoritarian—base that these transformations are born by, as well as the collaborations that they are grounded in.Footnote 6 It creates the illusion of a binary between the autocratic and the democratic, rather than unpacking the co-production of the majoritarian socio-legal order. Nor is the mass democratic dimension of right and far right orders exhaustively analysed when labelled “populist.” To understand the global right-wing turn and the broad consensus emerging around it, a closer look at forms of production and reproduction of majoritarian socio-legal norms is warranted (see also Ghildiyal, Reference Ghildiyal2024).
What characterises the emerging orders is the dual law situation that they establish, privileging a presumed “majority” ethnically and politically defined (see Bhat, Reference Bhat, Chan, Khosla, Liebman and Tushnet2025; Ali, Reference Ali2024), and excluding all who are deemed either not to belong or to threaten by dissent. The dual law situation consists precisely in the persistence of liberal norms and civic rights for howsoever defined majorities, and their abandonment for all those defined as not being members of that majority—potentially anyone, of course, since majoritarianisms easily expand their definitions of “the threatening other” to include anyone dissenting. They are furthermore characterised by their multifarious and quotidian co-production, that is, their prefiguration, their interpretation, and their reproduction in the acts of differently positioned actors. Importantly, thus, majoritarianism is compatible with and often present in lively democracies, now qualified as backsliding or declining. Nonetheless, the affinities of majoritarian legality with authoritarianism result from the ever-present expansion of definitions of threat to the “majority” represented within an idea of a national community.
Hence, while attention to changes in law or of law’s employment is central to the understanding of majoritarian legal orders, any analysis must understand more closely their possibility and preparation in the interaction between legal and socio-political processes. This calls for a perspective that does not assume that the current order emerges as a rupture with the previous, or as an “exception.” Rather, to understand the establishment of majoritarian orders around the globe, and the radical right now occupying the centre of political institutions, we might be better served by a perspective that analyses its possibility as arising in what is evidently not entirely its other, namely liberal democracy. Thereby, we move beyond a binary between the authoritarian and democratic to attend to their relation. It is important to understand the very making of majoritarian socio-legal orders, the collaborations, complicities, and collusions, as well as their differences to the liberal order from whence they arise. This is what this SI endeavours to do.
Precisely for such a perspective on majoritarian legalism and its normative order, we focus here on the socio-legal co-production of majoritarian legality in the prefigurative practices and experiments of those “working with law.” We thus move away from a notion of “autocracy” as imposed by some already constituted power, to an attention to plural forms of complicity of diversely situated actors in the mechanisms of establishing a new socio-legal order. The contributions to this SI therefore explore not the shifts in doctrine in recent legislation, nor the processes of securitisation and criminalisation that underlie the establishment of dual law structures in India, but the incremental transformations towards a new legal order in the employment and interpretation of existing law and procedure by state and non-state actors working with law. The contributions focus on the ways in which the legislative innovations are “prefigured” and (re-)produced in the orientations of police, lawyers, judges, prisons, court bureaucracies, intermediaries, and others, tasked with the administration or implementation of the law. They explore various socio-legal practices that contribute to the co-production of majoritarian legality.
Co-production is true for all law (P. Baxi, Reference Baxi2019). Co-production through work, through affective commitment, underlies all institutions (Mazzarella, Reference Mazzarella2010). Majoritarian legality, we argue, builds on the embedding of suspicion, hate, care, anticipation, and silencing as mandates in everyday forms of law. These practices of co-production are at times reflected in precise and deliberate shifts, through executive orders, documentary practices, or policy that are imposed to test if there is resistance, and at times, certain shifts may be rolled back or modified, depending on the nature of pushback and changing electoral calculations. These modes of socio-legal co-production make for the minutiae of transformation of interpretations, the production of new standards, the majoritarian distribution of impunity, and the definition of consensus in the making of the social life of majoritarian legality.
We might think of these incremental shifts as “experiments” on crucial questions of life and liberty in rather mundane and routinised ways that precede or co-exist with more monumental projects of law reform. Grounded in ethnographic studies of what we call “engagements with law” in India, the contributions to this issue provide plural, granular, and differing pictures of what we call the making of majoritarian legality, and trace how the contemporary politics of “majoritarianism” and “minoritisation” is absorbed in legal discourse at different registers, sites, intensities, and temporalities (also see Chatterjee, Reference Chatterjee2023).
In this SI, Devangana Kalita speaks to authoritarian legalism as lived experience in women’s prison in Delhi during the COVID-19 pandemic. Natasha Narwal traces the life of authoritarianism in prisons, through the ambiguity in law about women’s carceral labour as punishment and reform. Radhika Govindrajan focuses on the role played by patwaris and kanungos as the custodians of revenue records of land ownership and cultivation in rural Uttarakhand in regulating so-called “love-jihad,” as a critical site for the making of nationalist patriarchy. Bhat and Gupta in courts and tribunals in Assam produce durable mechanisms of legally sanctioned authoritarianism. Sandhya Fuchs’ essay, located in fieldwork in Delhi and Rajasthan, shows us how majoritarian hermeneutics accomplishes the reversal of who is victim and who is perpetrator in the deployment of anti-atrocity laws, and how thereby the caste patriarchal order is further entrenched by majoritarian legality. Siddharth Narrain traces how the virality of hate speech is constitutive of the legal life of majoritarianism. Mayur Suresh, Fariya Yesmin, and Lubhyathi Rangarajan analyse lawyers’ experiences of litigating terror and money laundering cases in Delhi, to illustrate how lawyerly assumptions about the very idea of law now find re-framing by majoritarian normativity as a form of a “normlessness.” Nidah Kaiser focuses on techniques of majoritarian policing in Uttar Pradesh by detailing how records of custodial killings of Muslim men during the anti-CAA protests are erased.
3. Continuity and change
There are continuities in law, particularly in the culture of ruling and state violence (Hansen, Reference Hansen2021); that is, the imaginations of how the state is to relate to different parts of its population and its citizens, as well as in executive and administrative practice (see Baxi, Reference Baxi1990). Legal continuities that reach far back into the colonial legacy of preventive detention laws, as well as the Indian criminal law and police codes, have found keen analyses (Heath and Lokaneeta, Reference Heath and Lokaneeta2025; Duschinski and Ghosh, Reference Duschinski and Ghosh2017; Singh, Reference Singh2007; Baxi, Reference Baxi1982; Baxi, Reference Baxi2012). Most clearly, these continuities are reflected in the carceral culture of India, addressed in Devangana Kalita’s autoethnographic account of imprisonment. The authoritarian and arbitrary view of law, from the location of the prison, is seen as a historical form of continuous emergency, intensified and defined explicitly in terms of public enemies by majoritarian legalisms. Natasha Narwal, too, in her examination of carceral labour, points to the long-standing continuities of the carceral regime hardly touched by discourses of reform, and that fit perfectly into the new as into the old. Her account of the exploitation of women’s labour in prisons dwells on legal ambiguities, which oscillate between thinking of carceral labour regimes as reform and punishment. These two articles describe the authoritarian legalism as the legitimisation of women’s sharp descent into bare life, as the condition that makes it possible for the legal life of majoritarianism to traffic in women’s life, labour, and liberty, outside the prison.
Carcerality could be said to be the ever-present kernel of “majoritarianism” in liberal orders, inasmuch as they exclude, by separating through confinement, those who are defined as un-includable (see also Arnold, Reference Arnold2018; Hussain, Reference Hussain2003; Hussain, Reference Hussain2007). It is no surprise that continuities between authoritarian legalities on the inside and the outside are so evident, particularly in the carceral regime. Separating out through confinement accomplishes an “othering” that takes its specific contextual hues, but that is at the core of any majoritarianism. To pay attention to these continuities is important for understanding the way majoritarian legality operates with the instruments provided by liberal orders. It shows, thus, how the majoritarian turn is not an “exception” or aberration but is built on the possibilities awarded by its liberal predecessors. The continuities in law, in cultures of rule, and in narratives of social justice make it evident how such fascist formations are always a potentiality.
Last but not least, attention to the continuities makes evident to what degree “rupture” and the proclamation of new beginnings are performative: Continuities are re-packaged as break, as long-awaited liberation, as innovative rupture in right-wing discourse all around the world, and so they are by the Hindu nationalist discourse. As in many majoritarian discourses, in Hindu nationalism, it is the alleged return to the “ancient” that is propagated as the new, in that this alleged return breaks away from liberal constitutionalism and therefore completes “decolonisation” to create a Hindu nation-state. Precisely such performative claims of rupture run through Hindu nationalist discourse, announcing a new era through the return to a propagated mythical past, now enabled through high- and low-tech capitalism. Thus, we see the combination of incremental transformation and performative rupture as characteristic of the establishment of majoritarian orders, and as strategic mode of authoritarian forces (as spectacularly seen, to take a most recent example, in the second reign of Trump).
In all these dimensions, that is, in laws, the culture of rule, and in administrative practice, beyond the deep continuities, there are thus aspects of qualitative change and transformation.Footnote 7 Majoritarian socio-legal orders are not the same as the normative context from which and within which they arose. Legal invention is most easily identified: In India, the “routinisation” of security laws in including the provisions of the erstwhile POTA into UAPA and its amendments was possibly the first step (Kalhan, Reference Kalhan2007; Singh, Reference Singh2007; Sethi, Reference Sethi2014) that made both for the increasing or increasingly easy criminalisation of dissent, and for the creation of a dual law situation for marginalised groups. Systematic legal measures have been introduced in recent years to “legalise” a dual law situation (Eckert, Reference Eckert2012; Narrain, Reference Narrain2021) that limits access to law for specific population groups, particularly Muslims, lower caste, and tribal communities.
This system of dual law was dramatically expanded beyond the regulation of protest and unrest when, in December 2019, the Parliament enacted the Citizenship Amendment Act, 2019, and simultaneously updated the National Register of Citizens (hereafter NRC) (see, e.g., Jayal, Reference Jayal2022; Roy, Reference Roy2022).Footnote 8 Detention centres have been built and continue to be built in several states to hold those denounced as “illegal” residents before deportation, above all in Assam, where 1.9 million people are threatened to be stripped of their citizenship (see Express News Service, 2025). As Mohsin Bhat and Arushi Gupta show in their contribution to this SI, proof of residence and the right to citizenship fail in ways, spurned by a circulation of suspicion within the judiciary.
These developments that establish a dual law system not only in criminal justice but also in citizenship laws are further complemented by laws of several Indian states, which Mayur Suresh has termed “social segregation laws” (Suresh, Reference Suresh2021). These include the “disturbed areas act” (Zuberi and Susewind, Reference Zuberi and Susewind2024) as well as the laws of several Indian states, such as Uttar Pradesh, Madhya Pradesh, Gujarat, Arunachal Pradesh, Odisha, among others, which have expanded sexual impunity by introducing stringent anti-conversion laws under the sign of so-called “love jihad,” criminalising inter-faith marriages between Hindus and Muslims, particularly those between Hindu women and Muslim men (Selvaraj, Reference Selvaraj2024). Cow slaughter bans,Footnote 9 another example of the criminalisation of the life ways of specific groups, embody both continuity and the perverse new meaning they gain when they serve to provide impunity for lynching (Vasudeva and Barkdull, Reference Vasudeva and Barkdull2020; also see Govindrajan, Reference Govindrajan2021; Adcock and Govindrajan, Reference Adcock and Govindrajan2019; De, Reference De2018).Footnote 10 The dual law system deploys “bulldozers” to raze houses and other properties of those accused of penal offences now assailed by the Supreme Court of India (Patnaik, Reference Patnaik2024; Liang, Reference Liang2023). The bulldozer becomes the hypermasculine symbol of majoritarian legality central to the penal policy of the state, which creates new regimes of criminal impoverishment of the families of the accused by such coercive unhousing of women, elders, and children (see Pati, Reference Pati2025, also see Kaiser on claims tribunals in this SI).Footnote 11
In 2024, the amendment of the Indian Penal Code (IPC), now called the Bharatiya Nyaya Sanhita, and the accompanying codes on procedure and evidence (Bharatiya Nagrik Suraksha Sanhita and the Bharatiya Sakshya Sanhita) were celebrated as acts of de-colonisation in the making of the new nation-state. The symbolic shift in the title of the three codes, signalled by the use of a new majoritarian vernacular, found juristic critique. This model of law reform announced overhaul, codification, and re-forming of law. It awed and shocked simultaneously. It pronounced its objective to erase “signs of slavery” by inscribing Vedic nationalist political temporality, “Amrit Kaal,” into the codes of criminal law. Mohan Gopal, for instance, argued that “this change of nomenclature reveals the intent and essence of the criminal law reform. It is a modest start of the process of shifting the foundation of our legal system from constitutional to theocratic, the shilanyas of the construction of a Hindu legal system in India” (Gopal, Reference Gopal2023). In the BNS understanding of decolonisation, at stake is the establishment of a new socio-legal order (see Sekhri, Reference Sekhri2024).
What is characteristic of these legal changes is that the veneer of normalcy that characterises much authoritarian legality here is abandoned; instead, a new “normal” is unabashedly established. Rather than pretending to honour an old normalcy, and cover the changes, a practice that Scheppele (Reference Scheppele2018) found characteristic of autocratic legalism, here the former legality and constitutionality is characterised as the “abnormal,” as alien, and illegitimate. Then the dual law that is established is branded as a (re-)turn to the proper and legitimate, now re-presented as that which was left uncompleted, or even thwarted after Independence (Bhat, Reference Bhat2024).
While modes of ruling locally and regionally continue long-standing forms, the raison d’état, that is, the legitimising narrative of state control, has transformed (also see Jamil, Reference Jamil2023). The goals and projects attributed to “the state” at a certain historical moment by bureaucrats, citizens, and subjects alike, relate to a notion of a public and its commonwealth. Such purposes narrate theories of a just social order (Bear and Mathur, Reference Bear and Mathur2015, p. 18; see also Du Gay, Reference Du Gay2000; Osborne, Reference Osborne1994, p. 302). That narrative in India is now Hindutva, explicitly, and is embraced by all who have come to feel that now is the time to lay claim to one’s property, the nation-state. The legitimacy of narratives of entitlement and justice has thus fundamentally transformed (see Saria, Reference Saria2019). This reason of state attributes a new legitimacy to the production of impunities and new spheres of bare life. As elsewhere (Massumi, Reference Massumi2025), in India, the current moment is one when reason of state trumps law. This, too, is characteristic of the authoritarian: It is defining of authoritarianism that the reason of state, which is always an un-democratic, even anti-democratic extra-legal imposition of state authority, overrides the norms that are meant to regulate everyday cohabitation, and turns such norms and rules into mere instruments of its raison d’état. Law is mimicry.
Thus, instead of positing continuity and change as alternatives to each other, we hold that in all processes of orders turning majoritarian, or, as some would claim, fascist, we see the incremental at the level of the community, the individual and the institutional, and at the same time we see the monumental, the terrifying, and the shocking at a mass scale. They belong together and feed on each other: The incremental produces what the shocking announces; the shocking defines what the incremental suggests; the shocking performs the unquestionability, the authority, or, more precisely, the decreed nature of what has been produced incrementally. The incremental normalises, the shocking sets as law and “naturalises.”
We see law being monumentalised in the very moment that its significance is mere mimicry (see also Zuberi and Susewind, Reference Zuberi and Susewind2024, p. 750). We see the law becoming the decree, spectacularly announced. The “nature of law” is a new one then: Not only does a liberal “rule of law” idea recede, but rather we move from the fiction or pretense of law being authoritative, to a system in which the meaning, the validity, and the significance of legal norms are overtly negotiable.
4. The new raison d’état of the state and society: co-production of majoritarian legality
The interpretative foil of the reason of state affects the meaning-making of those engaging and labouring with law, that is: the meaning they give to specific laws, and more: the understanding of professional mandates and professionalism as such. Bureaucratic rationality turns from legal rationality into a form of substantive rationality committed to a presumed higher goal, the new raison d’état, beyond the legal and constitutional order of the polity. This shapes the expectations, strategies, fears, estimations of the possible and the necessary, and, centrally, the very purpose of bureaucratic labour. These changes, incrementally produced and spectacularly set, are incorporated into the legal order, into legal practice, and into the justice system by executive, judicial, and administrative practices that the contributions of this SI focus on. For it is possible for one part of the legal process to remain concealed from other aspects of law. Citing Veena Das who makes the important argument that “legal fictions are not simply devices in the hands of judges and lawyers but have different lives in a network of interconnected spaces and times…. these small tools of knowledge (e.g., police memos, police diaries, spot reports) reveal how one part of the functioning of the law can remain opaque to other parts of the juridical process” (Das, Reference Das2022, p. 32). Such “small tools of knowledge” deployed by legal experts reveal how their suspicion, their caring, their anticipatory obedience, their silences, and omissions fold majoritarian politics into legal discourse.
The communal construction of threat as arising from Indian Muslims sits along with growing intolerance of dissenting voices in an embattled polity that has gained dominance, suspicion to be a central professional disposition. This goes beyond showing how law constructs communities of suspects (Eckert, Reference Eckert2012; Singh, Reference Singh2007). Suspicion is now more than before cobbled to a preventive logic that arises from the understanding of professional mandates to be first and foremost about the protection of the nation from those deemed a threat to it. Suspicion is thus not a supplement to or instrument of the judicious conduct of the work of law but has turned into the mandate itself. Suspicion informs professional practice not in terms of the attention to the proper employment of state norms and procedures, but concerns the entire identity of subjects, as well as their intentions, or even potential intentions.
Mohsin Bhat and Arushi Gupta, in their contribution to this SI, show how the suspicion rests on the onus of anticipating danger, and thereby affects the understanding of one’s professional duty being first and foremost “protection.” When “juridical labour” codifies and naturalises suspicion, law becomes a medium. They demonstrate how the circulation of suspicion turns into a legal meme that works differently from the idea of a precedent inasmuch as it does not engage with the substantive issues of the case but is mere “iterative circulation.” Unlike the precedent, there is no felicity to constitutional or even statutory coherence, and this is the condition on which the legal meme survives or spreads. By thinking of the legal meme, and how it is “portable, adaptable, and endlessly reproducible across adjudicative contexts,” Bhat and Gupta show how majoritarian legality reduces law to a medium of doing politics and produces graded citizenship.
Professional suspicion and the preventive logic that informs suspicion are related to professional understandings of care. Care is always imbued with the desire or obligation to protect: to protect from dangers, from wants, and from injuries. Claims to “care” thus have their own preventative logic. Or the other way around: Desires to control are easily couched in terms of care, of protection, and care is often hard to disentangle from control and violence (Morris, Reference Morris1997; Fine, Reference Fine2007; also see Mulla, Reference Mulla2014).
The ethnographic account of the production of majoritarian “feelings” centres on how emotion shapes law by debilitating and pathologising minorities, under the sign of protection and authoritarian ideas of care. Radhika Govindrajan looks at how majoritarian patriarchal feelings are embedded in the law, stoked by the visual, digital, and mediatised narratives of Hindus as victims of the intersecting and prolific forms of anti-Muslim discourse, that is coded in the term “love-jihad.” In right-wing discourse, jihad, emptied out of its theological meaning, circulates as an empty signifier, affixed to different aspects of everyday life, such as love (love jihad), property (land jihad), contagion (spit jihad), education and employment (UPSC jihad), and brand/commodity (sharbat jihad). This insidious form of hate speech that is widely distributed through electronic and social media (Nizaruddin, Reference Nizaruddin2022) has been challenged in courts by Muslim petitioners as an everyday form of pathologisation and victimisation of the community. However, identifying their duty towards citizens as one of care, administrators at once control those whom they seek to protect, and banish those they deem a threat to the former. “Care” is turned authoritarian; citizens turn into wardens.
The contributions on prison life also draw our attention to the affective and emotional investment that state officials bring to their work. Prison authorities deploy familial ideologies to govern inmates, normalising authoritarian care as abuse. Natasha Narwal foregrounds the material and reputational reproduction of the prison through the exploitation of women’s labour to argue that minimum wages for women in prisons are not guaranteed since “prison labour and its involuntariness emerge as another oppositional category to free labour and contract of work” (Narwal in this SI). The neoliberal rationality and carceral logics, which intensify “arbitrary and discretionary power of the prison authorities over women prisoners’ bodies and labour,” demonstrate how “the logic of national security and majoritarian shifts in the current political order seep into the everyday life of carceral architecture” (Narwal in this SI).
In their caring, and what they deem their “object of care,” and the issues where they are called to be “care-full,” state agents, whether local administrators or prison, actualise the raison d’état (“custodial deaths in prisons”). They concretise the threat (“Muslim men”), they evoke “experience” to ground knowledge about the ways that these threats operate (“love jihad”); they identify those in need of caring and protection; they theorise about “prevention” and “punishment” (“punitive demolition”). In the affective labour of care, the relationship between state representatives and citizens turns from one of administrative service into one of identity: State representatives are then not representatives of the state apparatus towards its citizenry, but representatives of and identical to “the people.”
Ideas of “care” also enter governance: Siddharth Narrain takes us inside the world of Facebook to look at how hate speech is regulated for the protection of targets of online hate, but in the process of definition, it creates impunity for the acts that are to be regulated. Narrain proffers a detailed case study of how the legal life of majoritarianism is embedded in the changing definitions of community standards of hate speech in 2021, and the failures of such standards to contain the “real-world” harm of the virality of hate speech. In a detailed account of the internal debates within Facebook, Narrain examines the role of virality of hate produced online and offline in the riot that devastated Delhi in 2020, and the subsequent move to make Meta accountable, although Meta’s evasive response in the proceedings of the Delhi Peace and Harmony Committee had the effect of co-producing impunity. The embedding of impunity, at an unprecedented scale, in viral and virulent forms, shows that hate does not stand outside the law, but rather circulates through law and governance inflected by the algorithmic destruction of the word and the world.
The turning of interpretations of what constitutes hate speech in the courts equally produces impunities that Sandhya Fuchs addresses in her contribution, wherein “hate speech” law becomes a political tool that systematically drives a narrative of upper-caste Hindu victimhood. The disturbing equivalence, Sandhya Fuchs argues, between hate speech, on the one hand and anti-majoritarian critique, be this a critique of Hindutva politics or criticism of state policies, is absorbed in practices of policing. Such shifts in majoritarian policing that interpret hate speech as anti-Hindu or as anti-government are made possible by “majoritarian hermeneutics” produced by virality and the accompanying hollowing out of judicial procedure, which is constitutive of how speech is framed as unlawful acts of incitement by police and judges (Fuchs in this SI).
Anticipation is central to professional practices of protection and prevention. Anticipation is geared towards specific ideas of threat and danger. Incarceration during the COVID-19 lockdown illustrates this rather painfully. Devangana Kalita’s chilling account of the “demon jail” inside the women’s jail describes how the prison is the primary site for carceral experiments that anticipate and prefigure shifts in penal codes.Footnote 12
But anticipation also plays a role in the accomplishment of majoritarian socio-legal orders in a different manner: Mayur Suresh, Fariya Yesmin, and Lubhyathi Rangarajan explore how defence lawyers gear their practices and strategies according to their anticipation of the increasingly illegible and uncertain behaviour of their professional counterparts. In what they experience as increasing normlessness, a situation in which they are at a loss as to what norms still mean, whether and when they can be invoked, or whether there are any rules to the game, uncertainty grows. Uncertainty finds liberal lawyers who do not know how to act with the shocking disappearance of the agreement to play by the rules of the game, in terror, riots, or money-laundering cases. They cannot entirely read the signals due to the gaslightingFootnote 13 by their counterparts. Their “guesswork” aims to benefit their clients, but results in an anticipatory obedience, or rather, in a prefiguration of the situation that they assume to be the case. The interpretative work that occurs in this uncertain anticipation shapes and narrows not only alternative paths of action but also concretises—prefiguratively—those very goals. Their estimations of the narrow possibilities, of what strategies are most likely successful in certain constellations, anticipate an authoritarian situation, and thereby contribute to its production.Footnote 14
Bhat and Gupta’s contribution, too, powerfully demonstrates the everyday impact of legal gaslighting on Muslims, who are made to doubt their reality as citizens. In their case, however, it is also silence or strategic inaction that produces the majoritarian normative order. Silence and inaction have powerfully been demonstrated as a major tool of turning towards authoritarian legality (Sundar, Reference Sundar2023). Judicial silence, judicial inaction, and judicial delay constitute an effective denial of the issues at stake as of significance, or the citizens concerned as worthy of attention.Footnote 15 The omissions that produce such denial are intricately interwoven with the prefigurative anticipation within courts, who, in order to remain functional, evade ruling on issues that they anticipate to arouse detrimental sanctions, such as the non-acceptance, or retaliatory dragging out of approving lists of appointments by the government (Prakash, Reference Prakash2024). Such denial, sometimes possibly mere omission, is an instrument of producing impunity and a dual law situation, in which some issues are heard, and others are silenced within the judicial system of India, and where the rule of law does not apply to its minorities (Bhat, Reference Bhat2024), if it survives at all.
5. Impunity: towards a conclusion
What emerges is precisely a situation of dual law. This is characterised not only by members of minorities and dissenters having lesser rights towards the state, but also by the creation of impunities for members of what is regarded as “the majority” in their relations to minorities (see also Chatterjee, Reference Chatterjee2023, pp. 7ff). A specific distribution of impunity characterises all normative and legal orders. We can distinguish between different patterns of the distribution of impunity. Much attention has been given to how broad government and state impunity are characteristic of authoritarian orders, with access to remedy against state violence being severely limited. The literature on dual state orders (Fraenkel, Reference Fraenkel2001 [1941]; Eckert, Reference Eckert2012; Narrain, Reference Narrain2021; Bhat, Reference Bhat2024) has similarly focused on state norms and procedures. The systematic creation or expansion of impunity for non-state actors in relation to their marginalised co-citizens has not been explored for the current transformations of legal orders. This, however, appears as central to the (production of) majoritarian orders: It enables (and relies on) active collaboration of individual and collective non-state actors (see also Ghildiyal, Reference Ghildiyal2024); such collaboration, even prefiguration, by what is called “civil society” actors is freed from legal constraints, and thereby produces the very order that is then institutionalised in new legislation.
The creation of impunity is accomplished in the practices of state actors, such as the non-registration of FIRs by the police against members of minority groups. Nidah Kaiser’s analysis of cases of police violence during the 2019 anti-CAA-NRC protests in Uttar Pradesh details how impunity is manufactured in Kafkaesque ways by erasing a fact of a gunshot injury, now or, modifying the place of location, then.Footnote 16 The chilling picture of majoritarian policing in Kaiser’s contribution shows how police violence is a public calculation of impunity. Impunity is flung in the faces of the victims, who are collectively seen as deserving of state violence. The techniques of policing that annihilate the legal status of a victim to the slain Muslim men describe the devastating and chilling effect of the dual law system.
It is with regard to this new expanse of “civic impunities” why we argue that the label “autocratic” or “authoritarian” legalism does not capture the quality of the contemporary moment. For one, the legal orders that we observe are not established top down, but co-produced. Second, the new orders restrict some, but with attention to the new degrees of impunity, they also claim to “liberate.” It is striking how contemporary fascist formations around the world operate centrally with a notion of liberation: liberating majorities from the fetters of minority rights; liberating national economies from the burdens of redistribution to the allegedly “non-deserving”; liberating speech from the fetters of so-called “woke” culture; liberating knowledge from the fetters of scientific research. Underlying this speech of freedom is often an ultra-libertarian concept of liberty. Not a republican notion of a freedom that shares in a commonweal, but an entirely negative freedom, that promises freedom from any constraint, for some. This carries within it a promise of unrestrained power (Eckert, Reference Eckert2001), or individual sovereignty.Footnote 17 Thomas Blom Hansen and Finn Stepputat defined “sovereignty” as a state of impunity, as “the ability to kill, punish, and discipline with impunity” (Hansen and Stepputat, Reference Hansen and Stepputat2005, p. 13). The blurring of state and civic sovereignty is particularly evident in the mutual push that both give to each other in the moves against the various so-called “jihads,” like the police violence that Nidah Kaiser examines, or the controlling care against “love jihad” amongst the state officials, which Radhika Govindrajan describes. The collusion of police and majoritarian rioters, the turning of protest against hate into incitement, and the securitisation of sexual intimacy all produce new impunities and a clear division between those who are protected by law and those who are not.
The dual law situation is thus not only one of a dual state (Fraenkel, Reference Fraenkel2001 [1941]) but of a dual polity, in which the creation of permanent communal majorities through violence and then their fortification in majoritarian legality is a complex and continuous process (Ambedkar, Reference Ambedkar2024; Mamdani, Reference Mamdani2020). Permanent majorities are not only legally privileged but also enjoy degrees of impunity towards those classified as permanent minorities. This is why we prefer to speak of majoritarian legality rather than autocratic or authoritarian legality: it is not top down, but throughout; it relies on a confluence, or merger of the state and the civic.
Acknowledgements
We would like to thank the reviewers for their thoughtful and engaged comments. We are grateful to Niraja Gopal Jayal, Tobias Kelly, and Thomas Hansen, as also to Surya Ghildiyal, Jyothy Karat, Pearl Pandya, Paul Pastré, Kiri Santer, and the contributors of this volume for their comments on an earlier version of this text. We are deeply grateful to Dr. Yaokun Qiu for helping us at every stage to put together this Special Issue.
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