Democracy in form and fact

India is living through a starker period of anti-constitutionalism, where the threat to institutions goes beyond ‘authoritarian’ features that marked the Emergency, argues a new book

March 19, 2022 04:56 pm | Updated 04:56 pm IST

In November 1949, as the Constituent Assembly stood on the verge of adopting the draft Constitution, its chairperson B.R. Ambedkar offered a few words of caution. For India to maintain democracy not only in form but also in fact, we must, he said, abandon the grammar of anarchy, shun hero-worship, and remember that social democracy — a value which recognises “liberty, equality and fraternity as the principles of life” — must always underpin political democracy. It was with these aims, among others, in mind that the Constitution had been drafted as a way of untethering the state from its dictatorial past.

Throughout India’s independent history, though, the challenges posed by Ambedkar have proven foundational. Some periods of time have been more testing than others. The Indira Gandhi-imposed Emergency is generally regarded as representing the country’s nadir. But we are, says Arvind Narrain in his excellent new book, India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance, living through a similar, if even starker, period of anti-constitutionalism, where the threat to our democracy goes “beyond the ‘authoritarian’ or ‘sultanist’ features” that marked the Emergency.

A new state

According to Narrain, six distinct features prevalent in India today have helped inaugurate a new state. First, a unifying ideological commitment to Hindutva, which is quite distinct from the rather flimsier connection that bound the Emergency-era government to a socialist revolution. Second, the aid provided to the state’s project not merely by governmental machinery but also by civil society, in this case, the vast network of the Rashtriya Swayamsevak Sangh. Third, the genuine popularity of the ruling regime. Narrain points to images of scores of people lining up without complaint outside ATMs in the back of Prime Minister Narendra Modi’s decision to instantly demonetise currency in November 2016. Four, the power of a new and rampant mob, which has enabled hate to transform itself into physical violence, where news of lynching without consequence has become commonplace. Five, the enactment of laws that strike at the idea of a secular, equal state: notable amongst them, the Citizenship (Amendment) Act and the slew of anti-conversion laws enacted by State governments across the country. And six, a widening chasm in wealth, aided and abetted by a series of pro-corporate laws.

The present era, marked by these six factors, Narrain says, has clear antecedents in the government-declared Emergency that was in force between 1975 and 1977, but it is also abetted by a somewhat counter-intuitive culture of constitutional continuity. Pointing to provisions in the Constitution that explicitly permit preventive detention, and to the Supreme Court’s judgment in A.K. Gopalan’s case (May 1950), Narrain shows us that the court has engaged in what one of its own judges Justice Vivian Bose described in a famous dissenting opinion as a “pettifogging of the law.” Or, as the civil rights lawyer, K.G. Kannabiran, put it, “For the magistrate and the public prosecutor, nothing appeared incongruous. They were not able to see any break. Governance for them was a continuous process and the principles of governance set up by the British in India were seen as appropriate and relevant for free India. The advent of independence was just an event which did not disturb continuity.”

‘Long shadow of Emergency’

Narrain argues that this culture has been compounded in the contemporary age. We see today, he writes, “the long shadow of the Emergency years,” in the failure of the system — the media, civil society, and the judiciary — to check government power and to protect the right to dissent. This is a period marked by a state that is “unafraid to use repressive laws”, “unchecked by any constitutional and institutional restraints.” Nothing exemplifies this feature more than the many abuses of the Unlawful Activities (Prevention) Act, 1967 (which was expanded through amendments in 2019) — the law, Narrain shows us, is by its very architecture inimical to the values of personal liberty and free trial. The deleterious effect of its use is only deepened by the selection of the National Investigation Agency as the government’s chosen agent of enforcement.

Narrain expertly analyses the use by the NIA of the UAPA. He shows us that whether it’s the protests around the Citizenship (Amendment) Act, the revocation of Article 370 in Jammu and Kashmir — where a permanent state of exception prevails — or the farm laws, it is the NIA with the UAPA in hand, that has allowed the state to quell any and every form of dissent.

Through all of this both the media and the judiciary have been largely unable to check governmental excesses, he says. The Supreme Court, for example, as the book demonstrates, has neither heard nor decided a series of important constitutional challenges: markedly among them, the challenges made to the abrogation of Article 370, to the use of electoral bonds, and to the validity of the amendments to the citizenship law.

This inaction has only led to a cementing of the prerogative state. But Undeclared Emergency goes beyond telling us what the state of the nation is. Narrain also offers a series of prescriptions on what is to be done, to allow democracy, in Ambedkar’s words, to thrive both in form and in fact. For this reason, more than anything else, the book makes essential reading.

India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance; Arvind Narrain, Context/ Westland Books, ₹699.

The reviewer is an advocate practising at the Madras High Court.

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