The other day me and my friend Pallu were on a motorcycle heading for Pallu’s house in Indra Vihar in north Delhi.  As we were about to make the turn into his neighborhood, we saw a large SUV stopped in the middle of the main road a hundred yards ahead, and a group of people were assembled.  Pallu, instead of turning right into Indra Vihar, kept going straight towards the crowd.  When we got there, we saw a young man pinned underneath his over-turned ice cream rickshaw.  Just next to him was a scooter driver sitting on the curb, nursing a cut on his leg.  His scooter was tipped over on its side and lying in the middle of the road a few feet from him.  Behind both the ice cream wallah and the scooter driver was the stopped SUV, which had apparently come to a halt right in front of the accident.

After parking the bike on the side of the road, Pallu immediately came to the ice cream wallah’s aid and helped him get up from under the rickshaw.  Me and several others got to work attempting to stand the heavy rickshaw with its large attached refrigerator back up on its wheels.  The ice cream wallah’s mouth was bright red with fresh blood, and he had a bad gash on his right wrist, which he was holding tightly with his left hand.  Pallu was asking him if he was alright, and the ice cream wallah, clearly dazed, had to take a seat on the sidewalk to regain his orientation.  Later on Pallu told me that he smelled alcohol on the young man’s breath.

Meanwhile, the scooter driver had stood up by now and was explaining to the crowd what had happened.  He was just driving straight on the main road and he saw the ice cream wallah in front swerving uncontrollably in front of him.  As the scooter was attempting to pass on the right, the ice cream rickshaw swerved dangerously close to the scooter, at which time the wallah tried to drastically change direction, causing the whole vehicle to tilt and collapse on its side.  The scooter driver, in order to avert the ice cream rickshaw, found himself running into the curb on his right, causing him and the scooter to slip and topple over.  The driver of the SUV had seen the whole accident unfold, and he confirmed the scooter driver’s version of the story, adding that the ice cream wallah had been swerving for quite some time before and clearly was not in control of his vehicle. 

Pallu, taking the side of the ice cream wallah in the face of a gathering crowd, tried to deflect attention away from the ensuing blame game, saying, “Hey, leave this guy alone, he’s hurt.  Just let him get up and get some help.” 

After regaining his senses, the ice cream wallah must have realized that the fault was his, and following Pallu’s advise, took his ice cream rickshaw, and immediately began pulling it away from the scene.  He wanted to get away before any police came.

The scooter driver didn’t want to let the ice cream wallah off the hook.  “Where is he going? Don’t let him leave! It was all his fault.  He could have gotten me killed with his driving.  Let the police talk to him.”

By the time the police came in their jeep a few minutes later, three or four pot-bellied men in dark uniforms and thick mustaches came and assessed the scene.  After gathering the details of the accident one of them asked where the ice cream wallah was now.  At which point Pallu said quite directly: “Why don’t you just let him go.  He’s a poor man and I think he just wants to get to his home.”

To my astonishment, the police man agreed, saying: “Okay, the poor bastard probably learned his lesson.”  The scooter driver, too, had given up his demand to apprehend the ice cream wallah, and took his scooter home.  The police left, the crowd dissolved, and we went on our way to Pallu’s house.

At Pallu’s house, we discussed the ambiguous space of the law in Indian society.  The law is rarely black and white, in any society.  And yet in certain places it is more flexible and negotiated in everyday life.  The relationship this flexibility has to the state and the state’s legitimacy in India is precisely what was demonstrated through this accident between the ice cream wallah and the scooter driver.

Imagine something like this happening in the US.  The first thing that would have happened is a surly police officer would come to the scene and command the parties involved: “License and registration.”  Regardless of one’s answer, the question already puts the cop in an unambiguous position of absolute authority.  If you do not have a license or registration, there is no further conversation, you are quickly apprehended or fined accordingly.  The police are like robots equipped with guns and the law is part of a larger machine that is made up of different gears that function like clockwork (the police, the lawyers, and the judge).  Once caught in this legal machine, you are crammed through the component gears relentlessly until you are spit out of the machine’s butt end.  This is the American justice system.  It is also the reason why the US has the highest incarceration rate in the world.

At the level of everyday life, that is, at the level of small conflicts and confrontations that happen between people on the streets, there is much more room for negotiation in India.  This of course, has both positive and negative side effects.  Corruption in India is commonplace, particularly among the police, who regularly take bribes and choose to ignore the law.  This is a direct result of the loose space of (il)legality that exists in everyday life.

But this loose space also allows a guy like the ice cream wallah, who was clearly in the wrong, to get out of this situation without having his life ruined by a drunk driving charge (as would have almost certainly happened had the incident occurred in a place like the US).  Nor is it likely that the ice cream wallah would have had a proper license or registration for his vehicle.  Perhaps he wouldn’t have even had a legitimate form of identification.  As Pallu informed me later, the young man’s accent revealed that he was from the impoverished state of Bihar, which sends tens of thousands of young men to cities like Delhi and Bombay because of little economic opportunity at home.  Once in Delhi, they perform those necessary but unrewarding hyphenated tasks like rag-picking, street-sweeping and rickshaw-pulling.  They live in slums or on the streets.  They ask for little from the state, and the state gives them little in return. They are at the margins not only of urban society, but also with respect to the law.  The police easily could have chased the young man down, arrested him and put him in jail, where he would have rotted until his case was called in front of court.  Probably no one would have even noticed his disappearance, save for some friends or relatives, who would be equally powerless to do anything for him.

What is interesting is how the scooter driver at first attempted to summon the law: “Don’t let him go! Let the police speak with him.”  But no one really took this demand seriously, including the scooter driver himself.  Upon arrival, the police themselves didn’t take their own presence seriously.  Light-heartedly they said, if no one got seriously hurt, “just let the poor bastard go home to his slum or hole in the ground…”

Why is such (il)legality allowed to exist in India?  Is it the result of underdevelopment?  Poor governance?  A failed or semi-failing state?  I would argue precisely the opposite, that without such a negotiated and “loose” space for (il)legality, in which quite possibly the majority of the country exists in an ambiguous position with respect to the law, the Indian state could not secure the legitimacy it requires.  Paradoxically, by allowing illegality to exist just under its breath, the state’s legal existence is reaffirmed.  Such is the “loose” and ambiguous “social contract” of Indian society, and it perhaps goes against everything enlightenment thinkers like Locke and Rousseau would have imagined for a constitutional democracy.

Democracy in India is characterized precisely by this negotiated space of (il)legality in everyday life.  Shiela Dixit, chief minister of Delhi, is currently on a crusade to “regularize” illegal slums across the city, recognizing their existence as “legitimate,” supplying them with infrastructure and services, in spite of recent Supreme Court rulings that have declared all such slums “illegal” (since they “encroach on public and private lands”).  Even someone as powerful and central in the government as Dixit uses the flexibility of the law to provide slum dwellers ad hoc legitimacy.  Why does she do this?  Because of the substantial voting power of the slums, no doubt. In an election year, her Congress party can tell itself and anyone who cares to listen that it worked earnestly for the urban poor by “regularizing” their “encroachments,” or slums, and promising to provide “regular” services like water and electricity.  But whether such promises are fulfilled is another matter altogether.

Or maybe not.

Indeed, part of democracy in India is also the designed failure to deliver on such promises.  Politicians like Shiela Dixit often have no intention to deliver on them in the first place.  But this failure is itself a part of politics in India: the willful neglect of slum communities even as they continue to exist in the liminal space of (il)legality.  And, as we know all too well, such willful neglect is not always benign.  Not only are empty promises continually made and cynically re-made, but the very next day bulldozers could show up and demolish the very shanty homes and slums that were supposed to become “regularized.”  And how might Shiela Dixit defend such an about-face in policy?  Simple: the slums are constitutionally “illegal.”  The same ambiguity that provides a necessary space of survival for the urban poor, a flexibility with respect to the law that also reproduces the state’s power, also places the poor at the very limits of state protection and existential legitimacy, so that their lives can be manipulated easily by the power elite.