Abstract
How do undertrial prisoners in anti-terrorism cases in jurisdictions of the global South navigate themselves, shape their existence, and make sense of their experiences with the law? What sort of knowledge do they acquire and how? What sorts of relationships do they form? What stories do they tell and believe? Terror Trials attempts to offer some thoughtful responses to these questions. In doing so, author Mayur Suresh makes an important contribution to sociolegal scholarship, while also providing an excellent addition to contemporary anthropological, sociological, and criminological research exploring aspects of crime and criminal justice in the global South.
Perhaps Suresh's most novel contribution is that, empirically, Terror Trials provides intimate, everyday insights into how the Law and laws (in this case, anti-terrorism laws and trials – and the institutions involved in implementing them) are not just producers of physical and epistemic violence, but also that these laws and legal procedures create possibilities for participation and negotiation in the trial process, especially for the accused. They do so through various techniques, technicalities, ordinary and mundane processes and paperwork that lie at the centre of these trials. In so doing, these legal technicalities give agency to those under trial; it gives them voice, power, access, flexibility, opportunity, and knowledge (gyaan) – both legal as well as experiential.
Suresh takes us through the everyday experiences of under-trial prisoners, those who are charged under anti-terrorism laws in Delhi, India, and those who must navigate unknown, unfamiliar, and uncomfortable terrains. He does this through 18 cases, and the layered relations of individuals involved in these cases, their routine experiences, trials, humour, and humiliations. These are stories that Suresh gathers over 14 months of rich ethnographic fieldwork conducted inside Delhi's Tis Hazari courts, allegedly Asia's largest court complex where terrorism trials are held in ordinary criminal courts, unlike special courts that we might find in other jurisdictions and contexts in South Asia. In Delhi, these trials are open to the public, hence Suresh is able to observe what he defines as ‘the subtle, fluctuating, and contested ways in which legal power works in courtrooms’ (p. 10). These ‘terror trials’ are not exceptional in the way Agamben defines the exceptional, but they are distinct from criminal trials.
To show this, Terror Trials focuses on the key idea of ‘legal technicalities’. Suresh argues that legal technicalities are the ‘ways in which participants in the trial make their way through courtroom processes’, sometimes collaboratively (with police officers, lawyers, etc.), and sometimes with flexibility, innovation, and creativity. Legal technicalities are all the ‘materials that can be ‘worked with’ (p. 207); they can be used to influence both convictions and acquittals, they serve as legal tools during the trial processes, and they may allow the terror-accused to sometimes inhabit the courtroom ‘in order to escape it’ (p. 16). Legal technicalities thus pave the way for gyaan, possibilities, and opportunities, serving instrumental and purposeful value for the terror-accused.
Working with these legal technicalities creates agency (giving power, knowledge, access to the accused), affect (generating feelings of home, desire, intimacy), and artefacts (paperwork, petitions, files, other documents that produce legal knowledge and meaning). In this way, legal technicalities shape the everyday experiences, the ordinary pains, and even the small pleasures of those under trial, the accused, but also others who are simultaneously navigating the court complex.
These complex legal and relational dynamics are demonstrated through the many emotive and illuminating cases that Suresh introduces us to. There is Yaseen bhai, a former member of the Student Islamic Movement of India, who is accused of putting up an ‘anti-national’ propaganda poster. While following his case, Yaseen bhai himself leads Suresh through the maze of the court complex, even authoritatively reprimanding a security guard on the premises for asking Suresh to turn in his cell phone prior to entering the courtroom, and then later shows camaraderie with the very police officers who were responsible for his arrest. There is the case of Nadeem and Faheem, which tells us about illegal detentions of the terror-accused in India (and indeed, across South Asia), and how the accused can get entangled in inter-institutional conflict and competition (in this case, between two competing police departments).
There is the case of Shahid which depicts a complex custodial intimacy at work between an accused and a police officer. The officer is a witness against Shahid, but Shahid bows down to touch the officer's feet after the latter's deposition, and seeks his blessings. Prior to the deposition, the officer and Shahid appear to have an intimate conversation, where the policeman tells Shahid that the case against him is weak, but then proceeds to give a false testimony in the courtroom during case proceedings. Shahid also offers the police officer his condolences for the officers’ son's death. It is a relationship of not just enmity but also, as Suresh suggests, ‘what could almost be described as friendship’ – a dynamics that Suresh frames as ‘custodial intimacy’. The idea of ‘custodial intimacy’ seeks to capture a relational dynamic between the police and the accused that ‘tends towards’ friendship, given the time these officers and accused spend together, but cannot adequately and completely be described as pure ‘friendship’ either (pp. 37–38).
Terror Trials suggests that custodial intimacy allows for the creation of an intimate knowledge of the law and legal technicalities. It is enabled by prolonged periods of interactions between officers in charge of a case, and also through rumours about the police, and the accused. Such intimacy creates the possibility of learning and grasping legal language and knowledge. In understanding this legal language and how the accused and undertrial make sense of it, Suresh introduces the reader to another concept of ‘recycled legalities’ through the case of Qayyum and his co-accused. These co-accused are arrested for the intention of carrying out a terrorist attack in Delhi. It is an apparently false and concocted case, with the Delhi police allegedly manufacturing and fabricating evidence. The accused are eventually acquitted. But what is interesting is how Qayyum his co-accused try to read and learn the law, inclusive of its legally dense language and complicated procedures, even translating the materials themselves, to defend their cases. In so doing, the accused are able to expose the irregularities in the prosecution's case.
This process, as Suresh suggests, shows ‘recycled legalities’ at work. The accused do not become legal experts per se, but there is a degree of learning-on-the-job through information that these accused gather through the Right to Information process. Recycled legality allows them to participate in the course of their own trial, and strive to influence its outcome. The process allows the accused to exercise their agency and foster hope. Recycled legality is a creative concept which depicts the creativity at work within legal worlds, especially when the accused need to deploy innovative skills, tools, and techniques. Their attempts to learn and deploy legal technicalities almost acts as a counter-technique, a form of resistance that can create alternative realities and expose the ‘states vulnerability to the law’, which is yet another conceptual contribution by Suresh.
On this note, the case of Bharucha and Kumar demonstrates this idea of the ‘state's vulnerability to the law’. While the terror accused are trapped by the law, by producing legal language and technicalities, the accused can also bind and trap the state to the law and fight for ways to protect themselves (for instance, by highlighting the defect's in a prosecution's case). Relatedly, there's the case of Masooda Parveen, set against the backdrop of the Kashmiri struggle for independence. Parveen alleges that the Indian army and state police had killed her husband. In building her case against the state, Parveen fails to produce relevant legal documents (the files), the mundane technical documents that the army and police are indeed able to produce in their own favour. These texts – that the state could produce and Parveen could not – served as what Suresh calls ‘hyper-texts’: documents that can fabricate, alter, and destroy realities.
Each of these cases offer new ways of thinking about law enforcement, procedure, and application in the global South. ‘Custodial intimacy’ complicates our understanding of the relationship between the police and the accused; ‘recycled legality’ shows that the accused are not just victims of problematic state laws and judicial violence, but also humans with the capacity to learn, resist, and survive; and thinking about the state as being ‘vulnerable to the law’ also somewhat exposes the state's weaknesses and gives hope to both the accused and the reader that, perhaps, the law can also foster pathways to justice and, and as Suresh writes, ‘find hope in the midst of despair’ (p. 34).
This ‘relative autonomy’ of legal technicalities as discussed in this book suggests that the state and its authoritarian politics does not always have complete monopoly over how such legal technicalities and tools will be instrumentalised. For example, states cannot control how legal technicalities and laws will shape and control the creation of certain narratives around the ‘terror suspect’, but can indeed enable the generation of ‘multiple versions of [legal] realities’ (p. 123) and ‘production of legal truths’ (p. 139) through which these accused can find their voice.
This book is distinct from prior scholarship on legal and anthropological literature on two fronts. First, pre-existing scholarship has focused on how legal institutions, procedures, and processes are penetrated by social relations and political power dynamics beyond these institutions. Second, prior work has explored how social relations and social categories and hierarchies are constructed and deployed during trials and within courtrooms. In both sets of scholarship, we forget that legal knowledge is produced in more complex ways; working with legal technicalities is a collaborative and affective processes that not only produces legal knowledge but also ‘temporary communities’ (p. 30), or certain intimacies between the various actors and institutions involved.
While Suresh's book makes novel contributions and raises some important questions, it leaves the reader wanting more in terms of critical, decolonial, and abolitionist reflections upon the intimacies apparently developed between minority undertrial prisoners and officers in contexts such as India, where minorities have been on the receiving end of state violence, especially over the past few years. Furthermore, Muslim prisoners – Suresh's primary subjects – and other minorities (including Dalits), are disproportionately overrepresented in the Indian criminal justice system and its prisons, and bear the brunt of India's anti-terror laws, a fact that Suresh himself acknowledges (p. 27). Does the development of ‘custodial intimacy’ then manifest simply itself as a survival strategy on the part of these prisoners, as they navigate a discriminatory state institution and problematic power structures? This question remains with the reader as the book closes, and to an extent is one Suresh appears to grapple with throughout. Nevertheless, Terror Trials is an impressive piece of scholarship, grounded in an empathetic approach that frequently lacks in sociolegal and criminological scholarship. Suresh centres the human agency, its frailty, and vulnerability. In so doing, Terror Trials takes you on a personal journey, one that gives a ‘human voice to the law’ (p. 208), and the reader becomes witness to the various facets of intimacies and technicalities at work within Delhi's criminal justice system.
