Arvind Narrain - Indias Undeclared Emergency: Constitutionalism and the Politics of Resistance

First published by Context, an imprint of Westland Publications Private Limited, in 2021

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Copyright Arvind Narrain, 2022

ISBN: 9789390679119

The views and opinions expressed in this work are the authors own and the facts are as reported by him, and the publisher is in no way liable for the same.

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No part of this book may be reproduced, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without express written permission of the publisher.

This book is dedicated to the BK-16 who, at the time of the publishing of this book, are still unjustly incarcerated.

This book is also in remembrance of Father Stan Swamy (193721), whose inspirational life embodied the struggle to fulfil the promise of the Constitution.

Contents

THE NATIONAL DEMOCRATIC alliance (NDA) government led by Narendra Modis Bharatiya Janata Party (BJP), first elected in 2014 and brought back to power with a resounding mandate in 2019, poses the most serious challenge to the Indian Constitutional order after the Emergency of 197577.

A fundamental precept of democracy is the freedom to question or challenge the government, a legacy of the Independence movement. With the ascendance of this new regime, this freedom is under increasing threat as the government has overtly instrumentalised criminal law to deal with dissent. This campaign of the government against dissent has become symbolised by what is referred to in the media as the arrest of the Bhima Koregoan 16, or the BK-16, under the draconian Unlawful Activities Prevention Act (UAPA), 1967. Those arrested comprise human rights activists from around the country whose work combines the strands of Dalit activism critical of Hindutva; legal activists seeking to make the State accountable for encounter deaths, illegal land acquisition for corporate interests, and many other State excesses; those defending Adivasi rights, including the right to land and against torture and rape; those challenging State repression in regions such as Kashmir, the Northeast and Chhattisgarh; and those practising progressive politics in universities, bringing together activism and the academia.

The BK-16 arrest playbook has also been used to deal with those in Delhi who protested against the Citizenship (Amendment) Act (CAA), protesters against the Farm Bills, 2020, and many other dissenters who critiqued State action, all of whom were tarred as anti-national by the State, arrested and subjected to a vicious media campaign. There is a roll call of such arrests, be it that of twenty-one-year-old activist Disha Ravi who tweeted in support of the farmers protests, or twenty-three-year-old Dalit and labour activist Nodeep Kaur who was tortured and beaten up for daring to protest the Farm Bills, or twenty-eight-year-old comedian Munawar Faruqui who dared to make fun of the home minister. All of these arrests were designed to chill the right to dissent and produce a more conformist society aligned with the State.

While one can point to arbitrary arrests throughout the history of independent India, the systematisation of the arrests of those who express dissenting views and the creation of a climate of fear against freely expressing ones opinion, calls to mind one moment from Indian historythe Emergency of 197577 during Indira Gandhis prime ministership.

The declaration of Emergency on 25 June 1975 resulted in the suspension of fundamental rights, including the right to freedom of speech and expression and the right to move the courts for the enforcement of fundamental rights. This enabled the State to increase its power over its citizens to unprecedented levels. The horrors of the Emergency included 110,000 persons being locked up, 161,000 sterilised, many of them forcibly, and over seven lakh displaced in Delhi alone. Essentially, the rule of law was suspended and the judiciary in effect gave the State carte blanche for an executive rule unfettered by the Constitution.

The Emergency posed the most serious threat to the Indian democratic project. In fact, the Times of India mourned the death of democracy through an obituary notice on 28 June 1975: Docracy, D.E.M., beloved husband of T. Ruth, loving father of L.I. Bertie, brother of Faith, Hope, and Justicia, expired on 26 June.

However, democracy was not quite dead and the Emergency faced a growing resistance among people, and when the opportunity came, they overwhelmingly voted out the Indira Gandhi regime in the elections of 1977 to resuscitate democracy. Acts of resistance both small and large, ranging from protests to underground literature to judicial dissents to a father searching for justice for his disappeared son, fed into the narrative of the illegitimacy of the Emergency and eventually contributed to its withdrawal and the announcement of elections. The Shah Commission, which was established post the Emergency, exposed the torture, arbitrary arrests, illegal demolitions and mass sterilisations during the era and, by telling the truth of what had happened, embodied the hope that never again would India witness such horrors. The political class took action through the 44th Amendment enacted in 1978, which, among other things, and most crucially, limited the Union governments power to declare an emergency and to suspend all fundamental rights. Human rights groups, such as the Peoples Union for Civil Liberties (PUCL), which were formed during the Emergency, continued to work to protect the fundamental liberties of the citizen even after 1977.

Although the post-Emergency era witnessed a return to the forms of democracy to which India had grown accustomed, this did not mean the end of State violence, including torture, illegal detentions and other forms of violence. After 1977, in fact, the human rights situation deteriorated in Kashmir, the Northeast and Punjab, all of which suffered mini-emergencies and authoritarian rule.

However, these rights violations never approached the scale, gravity and systematic nature of the kind during the Emergency, that is, until Modis ascendency. PUCL said in a press statement in 2018 that Modis regime had given way to a completely new order of rights violation, which it called an undeclared emergency where the rights of the citizens were being snatched away under the guise of Patriotism and cultural nationality. It added that freedom of speech, writing and expression were banned everywhere. This systematic assault on free speech is what brings to the fore the collective memory of the Emergency.

The Emergency era is also invoked because the subtle mood which envelops the nation now, as it did then, is one of fear of expressing ones opinion and of arrest as a consequence. During the Emergency era, it was the local police in each state or the Central Bureau of Investigation (CBI) which often arrested persons after the proverbial midnight knock on the door. The police emerged as the symbol of the Emergency. Under Modis rule, although the police continue to be an instrument of the regime, the National Investigation Agency (NIA), which functions under the direct control of the home ministry, has emerged as the main instrument of the government to investigate UAPA offences. Many NIA accused never come out on bail and their trial is never conducted with a sense of urgency. Such long periods of unjust incarceration are enough to perpetuate a climate of fear.