Modes of Inclusion (Democratic): Elections as States of Exception

This is the final post thinking about an important recent lecture given by the former Chief Election Commissioner of India, S. Y. Qureshi, at the Center for South Asia Studies at the University of California, Berkeley. A first post focused on what I termed narratives and practices of heroic inclusion; a second on the experimental transformation of the EPIC voter identification system into a biometric database, and the resulting conflicts between government agencies over their own administrative data preserves. The general point is to think about the range of sites where specific registers of “inclusion” operates as a dominant mode of governance, about the sites of conflict between modes of inclusion, and about the forms of lives and worlds and politics that come into being around these particular modes.

The Chief Election Commissioner talked at some length about the Model Code of Conduct, and so I want to follow his lead and think carefully about this “model code” in relation to law.

Not law but model

What is a model code of conduct? The term raises legal questions I will defer for now but will want to return to. Here I look at sections of the 2007 Model Code of the Electoral Commission.

At the outset, I want to think about several points made in the lecture:

(1) the Model Code is not statutory: it is not, that is, a body of law. It lacks the force of law. And, presumably, it lacks the checks and balances put in place in and with the law. Or put conversely, it has the power of a body of law-like codes, norms, and practices that are effective precisely in the exceptional condition of being outside the law.

I think here of the work of many scholars, including Laura Nader on mediation in the US and Katherine Lemons on a range of law-like forms of marital and religious judgment and counseling in India that stand outside the formal apparatus of Personal Law. I think also of the UIDAI itself: the debate over it, particularly when administrative preserves of data and control over these are at stake, is of course that it, too, lacks statutory authority: that Universal ID as a form of governance is not grounded in law, or only barely, depending on who and what one reads.

So my interest, in part, lies in the formal congruities (and their limits) between the EC and UID as exceptional apparatuses of inclusion through identification and information capture.

(2) The model code is powerful in its promotion of order: Dr. Qureshi offered multiple examples of how the EC and it’s code were able to trump the usual “nexus” of politicians, parties, police, and what in India are often termed “vested interests.” He spoke again and again of the importance of “order” in providing fair and accessible democracy. He referred to a critic of the model code’s many rules forbidding posters, loudspeakers, and other advertisements for a candidate near a polling station, who he said complained that the EC had taken “the carnival” out of democracy.  He responded, he told the audience, that he would be happy to bring the carnival over to her home and to see how she then felt.

The form here is reminiscent, again, of debates over privacy and UID. UID is charged with violated privacy rights: its defenders and architects suggest that such concerns are elitist and that the aam aadmi, the ordinary person, cares about food, shelter, and clothing. The elite critic who presumably lives in a sheltered environment can easily call for the carnivalesque: the stakes for those who strive for non-existent order are otherwise. The point, again, is not to accede to this claim but to attend to the ubiquity of the form.

The idea of a firm order outside of law that guarantees the law is suggestive of a series of debates in political theory about sovereignty leading from Carl Schmidt to Hannah Arendt to Giorgio Agamben. If sovereign is he [sic] who wields the exception, if the sovereign can kill without that death being either a crime (negative value) or a sacrifice (positive value), then the conception of a sovereign entails a form of life that can be ended as if it carried none of the distinguishing qualities of human life within a legal, ethical, and civil frame, as if it were just “bare life.” For Agamben, in a formulation that would later be carefully qualified, a classical conception of the sovereign demanded a distinctive “zone of indistinction” in which the difference between civil life (that cannot be killed without it being a sacrifice or crime) and bare life (that can be killed without what I am terming a shift in value) could not be maintained. Famously, Agamben would reread Foucault’s concept of biopolitics as a radical enlargement of the zone of indistinction between civil and bare life in the figure of the statistically established population.

This last paragraph is a quick rehash: the point is to open up thinking about what kind of exception the model code might entail, and to what extent if any it addresses “life” in ways relevant to this line of thinking. What is intriguing about the EC is its own standing in some kind of legal exception. The model code of conduct emerges as more powerful, in the time of elections, than the nexus of interests itself, the latter ever threatening to deform civil society: it emerges as the sole bulwark against the nexus. And yet the model code, guaranteeing law (and, as the Chief Election Commissioner repeatedly noted, “order,” stands in arguable exception to the rule of law, lacking as he noted firm statutory authority. As I noted above, the form of the exception is repeated, perhaps, in the often debated status of UIDAI as lacking statutory authority. But whereas the EC is celebrated as the bulwark of democratic norms set agains the ever present threat of the nexus, and the forces of disorder that this ubiquitous figure invokes, the UID troubles and affirms in equal measure, depending on the interlocutor.

The Idea of a Model

What may be important is the general form of a “model” code, in and around law and specifically in and around the law of India. Caught in the moment of ignorance (the general modus operandi of this blog as it lurches from topic to topic), let me reflect for now on the temporal register, in general, of a model as coming after a pre-existing form (as in a scale model of something, say a ship or the Taj Mahal) or before, anticipating and preparing for a possibility (as in the modeling that plans for structures and events). The dominant register of the model code is the latter: the code serves as the model for a democratic practice it anticipates and (re)forms. But it may, in a particularly (and familiar) post-colonial idiom, evoke an imagined order of colonial liberal governance as a rationalized system of order ever keeping the nexus at bay.

Models also, as the figure of the ‘scale model’ above illustrates, play with the scale of the gigantic and miniature. I am not sure how to think with this feature of modeling, save that the lecture that this blog draws from kept moving from enormity (India itself, and the realized demand for the inclusion of its “mass” population) to minuteness (the single voter in a far-off jungle reserve, or the tiny outpost in the Himalayan vastness).

The Model Code Itself

Let me close with a few sections of the code, with brief notes.

A Party is that which agrees to Norms

The primary actor here is the Party and then the Candidate. What is at stake here is a grammar of the nexus.

Impersonation and intimidation: two logics of nexus power

Impersonation is a particular form of duplication; intimidation acts on the original. If the EC sees its exceptional powers as operating on both registers, UIDAI arguably focuses on the former, as technically remediable, and evades the latter.

The biopolitical double

I conclude with this Question and Answer within the FAQ section that is far longer than the formal Model Code itself.  Can an administration, ruled by a particular Party running for office during an election, hold an event designed to save or preserve mass life? Here the question is in regards to tuberculosis. These sorts of questions appear regularly during election seasons, and the reportage holds open a tension between a political system that is thanatopolitical–that is, that does nothing effective to address the mass morbidity of a governed population for most of the non-electoral season–and an EC that is overstepping its commitment to its Code–that is, that would prevent a life-saving event in the name of abstract norms that do not take into account the precarious life of most citizens.

“So When Should We Set Up Our Camps?”: The UID – NPR Entente Has Trouble

This is the final post for now engaging the January 2012 agreement between promoters of the parallel and competing biometric programs in India, the Security focused NPR and the Financial Liberalization focused UID.

The other biometrics: National Population Register Camp

A recent article posted August 7, 2012, by Sahil Makkar on the website livemint.com [prominently featuring the Wall Street Journal on its masthead], argues that NPR is not doing well and suggests that the terms of the agreement are in question.

If you have been following the career of UID, the news is quite extraordinary. I give the article in full and follow with my usual 3 comments.

NPR likely to be delayed
Decision runs counter to the compromise reached in January that Aadhaar and the NPR weren’t in conflict with each other

New Delhi: The National Population Register (NPR), an identity database being put together by the home ministry, will likely be delayed by at least a year beyond its June 2013 deadline after facing another reversal in its running conflict with the Aadhaar project of the Unique Identification Authority of India (UIDAI), officials familiar with the development said.

The cabinet headed by Prime Minister Manmohan Singh has directed the home secretary to take steps to avoid duplication of work with UIDAI and to set up NPR camps in states only after the former completes most of its work of collecting biometric data on an additional 400 million people.

The decision effectively runs counter to the compromise reached on 27 January that Aadhaar and the NPR weren’t in conflict with each other and both projects would run simultaneously.

Minutes of the 7 June cabinet meeting, which were released last month, have been reviewed by Mint.

“With this decision, NPR work has been delayed indefinitely,” said a home ministry official who asked not to be identified given the sensitive nature of the issue. “We had earlier targeted to complete NPR by June 2013 but it will be at least delayed by a year or more.”

The cabinet decision could revive the fight between the two identity projects. The core dispute is over which one of the two will collect biometric data. The home ministry’s position before the January compromise was that UIDAI data could not be trusted for security purposes.

Under the truce reached in January, each project was to use the biometric data collected by the other. In case of discrepancies between UIDAI and NPR data, NPR was to prevail. On 7 June, the cabinet directed Nandan Nilekani to accept NPR data, but asked the home ministry to set up NPR camps in states only after UIDAI finishes a majority of its work.

Home ministry officials said that there was no clarity on the word “majority”. UIDAI’s mandate has already been increased from enrolling 200 million people to 600 million, against the wishes of the home ministry and other departments in the Union government, they noted.

UIDAI and the Planning Commission had sought an extension of the former’s mandate after it enrolled 200 million people, its initial target. That resulted in a turf war between NPR and UIDAI.

“The cabinet decision means we cannot set up NPR camps in the states till the time UIDAI completes majority of the work. So when should we set up our camps—when they complete 51% or 60% or 80% of their biometric enrolment work? There is no clarity. State registrars are writing (to) us for directions,” said a second home ministry official who too asked not to be identified.

The 12-digit Aadhaar number was conceived as a unique identity that would be accepted nationally by banks, telcos, oil companies and other government agencies to serve as a tool to better target social spending by making sure that benefits such as subsidies reach the poor for whom they are meant. NPR’s prime mandate is to satisfy security concerns.

Friction between proponents of the two projects persisted despite the January compromise. Then home minister and current finance minister P. Chidambaram wrote in a 1 June letter to Prime Minister Manmohan Singh that UIDAI was not honouring the truce.

“Despite these directions from the government of India, UIDAI is objecting to the conduct of the NPR camps in certain states and is also refusing to accept the biometric data of NPR for de-duplication and generation of (the) Aadhaar numbers,” Chidambaram said in his letter, which has been reviewed by Mint.

Chidambaram said in the letter that the NPR project was almost at a standstill because of the stance taken by UIDAI.

NPR creation is a statutory requirement and it is backed by legislation. We have to reach every resident in the country as per law even if they have already been covered by the UIDAI. The only difference is that we will not collect the biometrics of the people who have already given the same to UIDAI, but we have to record their other information. People are mandated to visit NPR camps,” the second home ministry official said.

The 27 January compromise hasn’t prevented duplication of biometric data collection, which the government had hoped to avoid. The government will have to spend an additional Rs. 6,000 crore if both NPR and UIDAI insist on collecting biometric data. The second home ministry official admitted it was all but impossible to avoid duplication costs.

The 27 January cabinet decision said the Registrar General of India (RGI), which runs NPR would be free to collect data “as per a schedule of its convenience” in the Andaman and Nicobar Islands, Andhra Pradesh, Chandigarh, Daman and Diu, Goa, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Delhi, Puducherry, Punjab, Rajasthan, Sikkim and Tripura.

“Now we are only setting up NPR camps in those states like Delhi where UIDAI has almost completed its work. As per the new decision, we are not entering in the state where they are yet to take up work or collecting biometric data,” the first home ministry official said.

The home ministry officials say they are now dependent on state governments for their permission to set up camps because the latter will need to decide whether UIDAI has completed a majority of its work.

A UIDAI spokesperson refused to comment on the issue. “Both UIDAI and RGI are working in accordance with the decision of the government taken from time to time. We are not aware of any difficulty in this regard. We, therefore, have no comments to offer,” R.S. Sharma, UIDAI director general, said in an email response.

UIDAI says it has partnered with state-level registrars for conducting enrolments in the states and that it hopes to enrol another 400 million people in the next 18 months.

Incidentally, the Expenditure Finance Committee (EFC) is yet to clear the UIDAI’s request for an additional sum of Rs. 5,000 crore for enrolment of the additional 400 million people.

“The proposal is expected to be considered by the EFC shortly,” Sharma said.

UIDAI’s second round of enrolment started on 4 August.

UIDAI claims to have enrolled 200 million people and issued 180 million Aadhaar numbers. It has dispatched 175 million Aadhaar letters. NPR has collected data on 710.25 million and recorded the biometrics of 30.95 million.

3 Points:

1) Duplicates upon duplicates! The painstaking effort of Nandan Nilekani and his team to avoid duplication, their liberal dream of de-duplication, is here explicitly threatened by NPR as a duplicate in multiple senses: two parallel databases, two modes of data collection, two parallel staffs, two norms of contract (see last post) etc. The presumption of Nilekani’s UIDAI is that heretofore the State has failed to realize India’s historical potential (cf. Hegel‘s lectures on the philosophy of history): the social contract has failed, as the condition of livability that the sovereign is to ensure for the citizen-subject is inevitably diverted to an inauthentic “duplicate.” The lessons of rationalized, non-familial corporate governance [i.e., bureaucracy proper to its and the nation’s historical potential] and the power of biometrics and big data are brought together to create a database with the power once and for all to de-duplicate the nation.

Bringing India to the end of history: Nilekani as dialectician

But the NPR, from the perspective of the promise of UID, is most likely government as usual, riven with localized “vested interests” forming a nexus with the state and its information-gathering. To allow NPR data to be commensurate with UID data is to ensure the failure of de-duplication, for the NPR data again from this perspective is thought to be always already duplicated: that is, to be formed in the crucible of [corrupt] everyday interest politics.

In this sense, Nilekani and others’ diagnosis of the state as always already corrupt and requiring an uncontaminated intervention is similar to that of the Gandhians and of Nehru, according to Thomas Hansen in his important argument in The Saffron Wave.

[Against the usual opposition of Gandhian work on the body/self/relation [satyagraha] and Nehruvian statist expertise, Hansen as I read him (brutally abstracting a complex argument) suggests their continuity in terms of a form of anti-politics in which everyday political process is inevitably contaminated by the scrum of vested interests. What is needed to rise above the near-Hobbsean state of nature produced by the play of interests is some sublime form of necessarily anti-democratic governance, and both Gandhi and Nehru if in quite distinctive ways turn to Indian civilization as its reason and justification.]

Big data and biometrics and corporate governance, if one draws on Hansen’s language, are the conditions of the contemporary sublime.

Biometrics in particular seem to matter. The sticking point according to the article in the earlier entente between UID and NPR was whether NPR would include biometric data or be more of a conventional census.

2) The irrelevance of cabinet position, the impotence of law: Chidambaram by all accounts is a powerful and canny politician and administrator. And yet his own lament at the deferral and exclusion of NPR and presumptively of India’s security interests [cf. “so when should we set up our camps,” a statement extraordinary in so many ways] suggests he is no match for the Congress government’s commitment to Nilekani and the UIDAI, whether we are to read that commitment as the financial liberalization and technocratic bias of the Prime Minister or as the populism of the Nehru-Gandhi family and their sense that the rationalized entitlement UIDAI/Aadhaar promises is the effective update on the Garibi Hatao [Eliminate Poverty] tradition of their party.

Chidambaram was recently moved from Home to Finance: from the official home that is of NPR to the home of UID. But if that move was in part to force him to back down from his commitment to the security database it has failed. Here he to speak as if he was more responsible for the Home Ministry’s NPR than his current post’s baby.

Once a Home Minister, always a Home Minister

And note his point that NPR is mandated under law. Implicitly he is pointing out, like many critics of UIDAI across the political spectrum, that the latter’s grounding in law is shaky at best. At stake in one sense is arguably a shifting terrain of the formal and legal. Here at least the NPR/UID distinction marks a differential claim on law, a differential logic of law. In part, UID like some other forms of sublime governance operates through the logic of emergency or exception: Nilekani has a cabinet-level rank without the formal limits and protocols of a ministry. UIDAI may be a section of a section of a section of the Finance Ministry, but it is in many situations treated as all but independent. Or so its critics allege.

To bring in the logic of exception, a concept with a familial relation to Hansen’s use of the sublime, may invoke for some the work of Giorgio Agamben and in particular Partha Chatterjee’s use of an Agamben-ish distinction between “civil society” [“bios,” life under law] and “political society” [“zoe,” bare life under exception]. Here the Security apparatus, in the post-millennial United States the sine qua non of the zone of exception as opposed to formal law, becomes on the contrary the embodiment of statute and law and territory. The financial liberalization apparatus is set apart as the troubling extra-legal state of exception.

3) Scale and speed, the mastery of time and the Masses: NPR’s lament is not being able to start. But if UIDAI is responsible for freezing the time of its rival, in doing so it secures the familiar neoliberal claim that the state is inefficient and corrupts time itself. UID here appears phenomenal in capturing millions and millions of persons for their de-duplication, despite reports of old people being illegible to biometric recording and entire states (the Northeast) being zoned for NPR alone. It masters time, or if you like it masters India as the Masses through its use of time. NPR is denied time: or is its lament just the familiar plaint of the development state justifying its failures by blaming others? Such are the stakes of debate produced in this moment.