It is easy to point out how we are not just in abetter situation than the Libyas and Sudans of the world, not to mention our beleagured neighbours in South Asia, but also hold something over the US,Israel, China and the whole of the EU taken as a unit. From the legacy ofMahatma Gandhi to the most recent defeat of fundamentalist forces in the 2004general election, Indian commentators on the state of their own state are toohappy to find reasons to assume a moral high ground with respect to othernations, those lacking, poor things, their own tryst with destiny.

But it is precisely freedom beset from all sides by unfreedom that has to bewatched over with the greatest care. It is exactly those values and practices ofIndian politics and statecraft we cherish the most -- to the point of gloatingabout them -- that call for our most incessant attention. We do not have,arguably, our own Palestine, our Chechnya, our Tibet, or our Iraq. Even in theNortheast and Kashmir, in Gujarat and in the Narmada Valley, where the state ofexception prevails and the Indian state wears its least humane, leastlaw-abiding, least liberal face, the logic of the nation-state has not beenstretched to breaking point -- not yet.

But the fact that thus far the Kashmirisand the Nagas are not alienated to the point of secession, or communitiesravaged on account of communal violence, say, or detrimental developmentprojects, have not taken up arms against India: these are not reasons tocelebrate. What we need to work towards, rather, is a state that does not turnagainst its own people, reducing Indians to internally displaced persons, hivingoff entire sections of the population, like the Pandits, into camps andcamp-like spaces, and treating as less-than-citizens either individuals orgroups that lack robust mechanisms of self-preservation and self-representationfor a variety of historical, cultural or economic reasons.

It is because theIndian state is by and large and in principle not an offender against basicrights and dignities, that its few crimes and misdemeanours merit the sharpestcriticism. The predicament of S.A.R. Geelani is condemnable in all events. Whatmakes it egregious is that it unfolds in a context where we all like to thinkthat such things cannot -- and do not -- happen.

Geelani did indeed have an articulate section of civil society rally aroundhim when he was first sentenced to death in the Parliament attack case. Lawyers,academics, film-makers, writers and all sorts of concerned citizens dideverything in their power to get the Dhingra indictment reversed in the HighCourt, and they were successful in their campaign to have an innocent man walkfree.

But again, the question is: Why did there need to be an All India DefenceCommittee in order for Geelani to get justice? Had the law taken its propercourse, the police not jumped into the fray with unconscionable zeal, andsectors of the media not contributed to the baseless hysteria against Geelani,this kind of special pressure-group need not have been formed. What is therelationship of the AIDC to the everyday functioning of the institutions thatare supposed to maintain law and order, and to the criminal-justice system? Whyshould there be a suggestion about the need for a CBI inquiry into the February8th shooting incident, when the police is there to do its job?

If the stateis going to resort to exceptional instruments like POTA and TADA, civil societytoo, is going to have to come up with tactics that do not have reference to thelaw in its normal description. For effectively, the message sent out the momentPOTA or one of its variants kicks in, is that the law as we ordinarilyunderstand it is in under suspension: in the given circumstances, deemedexceptional, the police is endowed with extra powers, a citizen’s rights arecurbed, and no questions or criticisms are entertained because the veryexistence of the state, not to mention its integrity and its authority, areperceived to be under threat. When the law retreats into the state of exception,what happens to the armour of citizenship? It must be repeated: it falls away.We are left exposed to the excesses of the enforcement agencies, and this isprecisely the fate that befell Geelani on December 13, 2001.

And Geelani is only an index -- in the sense of being a pointer -- to whathappens to citizens every time that there is a suspension of the rule of law, tobe replaced by any kind of "special" regime, howsoever short-lived: a stateof emergency, the diktat of the armed forces, or the paramountcy of the police.Time and again, in India and in the world at large, this much is evident --policing and humanitarianism, state atrocity and civil society vigilantism, aretwo sides of the same coin, namely, the state of exception to the rule of law.

Aperpetrator of exceptionalism, like Narendra Modi, a victim of it, like S.A.R.Geelani, and a crusader against it, like Nandita Haksar, are all, equally, thesymptoms of a systemic breakdown, signs that the state is abdicating its stakein and its commitment to the law as the default preserver and guarantor of ourrights. True, Tihar Jail is not Abu Ghraib. True, the suspension of the law doesn’thappen everyday and it doesn’t happen everywhere in the vast and complicatedpolitical landscape of India, but wherever and whenever it does, some of usconsider it our responsibility to point it out.

I would refer the reader oncemore to Agamben, this time on the state of exception, but apparently the use ofpolitical theory in political analysis breaches an unwritten rule of engagementin English-speaking sections of the Indian public sphere (or so thetheoretically-challenged would have us believe). Thankfully the vernacular pressnever desists from looking for, and deploying, all the theoretical tools itneeds to make sense of the political phenomena in which we are continuouslyimmersed. Public culture in small towns and cities all across this country isnot averse to intellectual practice; nor can I think of a single vibrantsub-culture of debate, from Poona to Kolkata, from Chennai to Mysore, fromVaranasi to Srinagar, where "erudition" would be levelled as though it weresome sort of an allegation against an ideological opponent!

The premise of the accusations against Geelani, as now of the attacks,ranging from the comical to the misguided, against those who set out to decipherthe meaning of a Geelani in the language of national politics, is neitherpolitical fact nor political theory, but, unfortunately for the state of debatein the English-language media, identity. Identity discourse makes it impossibleto talk about positions, because we are too busy talking about the persons whoimplicitly embody or explicitly espouse them.

As a colleague of mine said to me,"Identity is the mud that muddies the water". So, a man who is Kashmiri ismore likely to be a terrorist. A woman who writes in his defense is more likelyto be a Marxist. The state from which Geelani, as protagonist, hails, theuniversity at which I, as commentator, work: these incidentals assume anexaggerated and misplaced importance, and the issues -- Why was Geelani presumedguilty in the original case? Who is trying to kill him now? Why has his lifebeen rendered so precarious? Does the analogy of the homo sacerilluminate Geelani’s predicament? Do we need to remain alert about thecondition of our rights and liberties? Is our state a source of succour or ofpersecution? -- be damned.

Geelani’s ethnicity is a sure-shot predictor of hislack of patriotism; my institutional affiliation is code for what surely must bemy ideology. An article about Geelani ought not remain focused on Geelani; itought, in fact, to explain everything from Partition to Godhra, from Azharuddinto the Shankaracharya, because let’s face it, all politics on the subcontinentboils down to the irreconcilable conflict of Hindus and Muslims. From the leftand from the right, from the majority community and from the minorities, fromthe government and from the people, so many seem to think that who they arestands in for a coherent argument, who speaks is more significant than what getssaid, and that serious political analysis should or will deteriorate into amud-slinging match, to return to my colleague’s apt metaphor.

Indeed, in thisvicious context, the reference to the Nazi state and to the denizens ofconcentration camps is far from random or irrelevant: the Holocaust wasprecisely the end-point of identity politics.

The figure of the homo sacer, as a species of political beinglabouring under a ban -- in the dual sense, banishment and abandonment -- comes outof the history of ideas in ancient Rome. Does that make it a priori lesstheoretically useful than, say, a symbol of persecution in the Mahabharata?(Take your pick: would you like to be colonized by the West, or a Hindurevivalist? Actually, in the interest of getting a job in the American academy,I’d like to be a Christian fanatic: let’s talk about the crucified Jesus asthe Man of Sorrows. Or, better yet, in the service of political correctness, let’slook at Primo Levi’s most oppressed Jew in Auschwitz, called, in camp jargon,with deadly irony, the Muselmann -- the Muslim). Oppression knows nocivilizational boundaries; neither, necessarily, can dissent. If analogies willnot come from our diverse cultures, our multiple histories, and from an array ofinter-twined traditions, how will we construct a hermeneutics for the present?

It is laudable that all kinds of expected and unexpected interlocutors haveregistered their reaction to Prem Shankar Jha’s and my own analysis of thefigure of Geelani on the web-pages of this magazine. Some of them, especiallythose from the Hindutva right, seem to prefer an idiom of vituperation thatoften falls over the edge of severe criticism into abuse and obscenity. At thispoint they do themselves out of a hearing. Why anyone would be so vindictive asto be debarred from engaging in the conversation altogether is hard to fathom,since the idea, presumably, is to say one’s thing and have it reach the widestpossible audience. Abusive language is self-defeating: it is not just, as inthis case, a vehicle of questionable to condemnable political views, it is alsoa tactical mistake. Other voices maintain a veneer of civility, but either chasered herrings, or substitute identity for rationality, or remain innocent ofrigour, or all of the above.

Geelani could be read as supportive of Kashmiriindependence. Maybe so, but should this get him a death-penalty? Geelani calledhis co-accused on his cell-phone. Does this prove he wanted to blow up ourParliament House? I offer up political commentary on the state of the law andthe limits of state power. Does this make me a spokesperson for the man whosepredicament occasions my analysis? I believe that the state in a democraticnation is at every moment answerable to the citizens for its actions as for itsomissions. Does this make me a left fundamentalist? The judicial arm of ourtriadic state appears to stick closer to the letter of the law than theexecutive arm. Does the competence of the one compensate for the errors of theother?

What kind of ridiculous charges are these, and why do we expend our nationalenergies in the trade of insult and the commerce of injury instead ofmaintaining our grip on the issues? I guess Geelani and by extension, those whospeak about him, must needs be tried by fictional lawyers, because real lawyerswould know right away: there is no case here, milord.

I fear that in place ofkeeping a close watch on what threatens to become a widening gap between ourentitlements as citizens and the dangers to our citizenship from the escalatingexceptionalism of our state, the anti-intellectual intellectuals of this countryare wasting their time, and ours, making statements that smack of poor politics,poor scholarship, and poor taste.

The author is with the Centre for the Study of Law and Governance, JawaharlalNehru University.