Countering the totalitarian state
ARVIND NARRAIN, a Bengaluru-based lawyer and writer, is the author of India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance. He is visiting faculty at the School of Policy and Governance, Azim Premji University. He has co-edited Law Like Love: Queer Perspectives on Law (2011) and co-authored Breathing Life into the Constitution: Human Rights Lawyering in India (2016) and The Preamble: A Brief Introduction (2020). He is currently pursuing a PHD at the National Law School of India University, Bengaluru, the topic for which is the legal and political thought of B.R. Ambedkar. He was part of a team of lawyers that challenged Section 377 (criminalising homosexuality) of the Indian Penal Code right from the Delhi High Court in 2009 up to the Supreme Court in 2018.
In his latest book, Narrain argues that India is in the midst of an ‘undeclared Emergency’, which has incrementally been implemented since Narendra Modi became the Prime Minister in 2014. Narrain looks at a wide variety of historical and contemporary sources to establish his argument. In a wide-ranging interview with Frontline, Narrain discusses several issues that emerge from his book. Excerpts:
In your book you make the forceful point that what India has been witnessing since 2014 is an ‘undeclared Emergency’. You say Narendra Modi’s regime has “inaugurated a new kind of state”. What distinguishes this ‘undeclared Emergency’ from the Emergency between 1975 and 1977 declared by Indira Gandhi?
The declaration of Emergency on June 25, 1975, resulted in the suspension of fundamental rights, including the right to freedom of speech and expression and the right to move courts for the enforcement of fundamental rights. 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.
While rights violations continued even post the Emergency, they never approached the scale, gravity and systematic nature of the kind during the Emergency, that is, until Narendra Modi’s ascendancy.
The PUCL [People’s Union for Civil Liberties] said in a press statement in 2018 that Modi’s regime had led to a completely new order of rights violation, which it called an ‘undeclared emergency’ where the rights of citizens were ‘being snatched away under the guise of “Patriotism and cultural nationality”’. Today freedom of speech and expression is under assault, with critics of the government facing the sombre reality of long years in prison.
During the Emergency, while the law of choice to curtail dissent was the Maintenance of Internal Security Act [MISA], today it is the UAPA [Unlawful Activities (Prevention) Act]. Emblematic of the use of the UAPA is the arrest of the BK-16 [16 human rights activists arrested in the Bhima Koregaon case] and thousands of others around the country for what are at best ‘speech offences’, i.e., speech which should be constitutionally protected but which the government decides to prosecute using the criminal law.
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 one’s 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 Modi’s rule, although the police continue to be an instrument of the regime, the National Investigation Agency [NIA], which
Interview with Arvind Narrain, writer and lawyer.
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.
What tips rights violations into an ‘undeclared emergency’ is the abysmal failure of all institutions of accountability, be it the media, civil society and judiciary to ensure that the government functions within the four corners of the Constitution. Of especial concern is the fact that the judiciary stands mute in the face of constitutional violations. The court has failed to hear and decide matters of undeniable constitutional importance. It has so far failed to decide on pressing issues such as the abrogation of Article 370, the constitutionality of the CAA [Citizenship Amendment Act] and the case on electoral bonds.
‘TOTALITARIAN AMBITIONS’
You write: “It is undoubtedly true that the Modi regime has all the hallmarks of an authoritarian regime founded on the absolute power of the leader around whom a personality cult has been manufactured. However, Modi’s reign goes beyond these and is a regime with clear totalitarian ambitions.” Why do you characterise the BJP under Modi as a regime with “totalitarian ambitions”?
The totalitarian ambition goes beyond power for its own sake, to a desire to control the lives of people, including the God they choose to worship, who they choose to love and what they choose to eat. If we see the range of new laws introduced in BJP States around conversion, ‘love jehad’, cattle slaughter, you get a sense of the totalitarian ambitions.
I also draw from the political scientist Juan J. Linz’s description of totalitarianism as a ‘regime form for completely organising political life and society’. In Linz’s analysis, the ambitions of a totalitarian government are far wider and its abilities far deeper than those of an authoritarian one.
A totalitarian rule goes beyond retaining total control over the state to trying to ‘politicise the masses’ and shaping individuals in accordance with its ideology. It draws its strength and support not just from its control over the levers of the state but also from organisational fronts which work at the societal level, aiming to transform society in terms of its ideology.
With the rise of Hindutva, India today seems to fit Linz’s description. The rule of Modi is buttressed by vigilante forces rooted in Hindutva ideology. The mob is a serious actor on the Indian political stage and the common sense of the people is sought to be altered in line with Hindutva thinking. Another important dimension of totalitarian rule is its ‘popularity’ with the installation of the ‘people’ as a collective tyrant spread across the length and breadth of the land.
We have to understand the totalitarian ambition of the current regime as that is what marks it as different from all previous regimes.
You have continuously relied on Hannah Arendt whose work provides a perceptive framework for understanding the
German Nazi regime of Adolf Hitler. Why is the work of this political philosopher crucial in understanding the changes that India is undergoing since 2014?
Hannah Arendt, a German Jewish philosopher, narrowly escaped the Nazi persecution of Jews in Germany and was exiled to the United States. Her work philosophises on what she was to call ‘radical evil’ or ‘totalitarianism’. I have gone to her book Eichmann in Jerusalem: A Report on the Banality of Evil (1963) as well as Men in Dark Times (1970) for her insights on the Nazi regime and resistance to the same. However, her book of greatest import and which bears repeated reading in today’s [Indian] context is The Origins of Totalitarianism (1951), which, as critics have pointed out, has more insights in its footnotes than entire volumes on the Nazi regime. I have gone to Arendt for her insights on the role of the mob in politics, the nature of totalitarianism as well as ways in which human beings resist the impulse of totalitarianism.
In the world we live in today, where politics is based on majoritarianism and often speaks the genocidal language of elimination of minorities, undoubtedly her work is absolutely critical to understanding the contemporary moment.
ROLE OF THE JUDCIARY
In a constitutional democracy, the power of the political executive is kept in check partially by an independent judiciary (along with the political opposition, the media and civil society), but you provide several examples of how the Supreme Court has failed to safeguard the Constitution. This is a rather serious criticism of the apex court and, as you point out, there is an
“easy complicity between the executive and the judiciary”. How has the judiciary, which is deemed to be an independent component of a constitutionally democratic state, succumbed to the political executive and legislature?
For understanding the role of the judiciary in the contemporary context, I
have cited consummate insiders, namely retired judges who have given voice to the increasing sense of disquiet felt by legal scholars, lawyers and ordinary citizens. The Supreme Court has abdicated its constitutional responsibility by failing to hear and decide key matters such as the abrogation of Article 370 and the constitutionality of CAA.
After detailing the list of failures which Justice Gopal Gowda scathingly referred to as a ‘supreme failure’, I look to how the spirit of constitutionalism can be nurtured. The role of some of the High Courts during the pandemic was exemplary. We also need to draw sustenance from our constitutional tradition, with the courageous dissent by Justice H.R. Khanna in ADM Jabalpur embodying the best of our constitutional tradition.
I also go to the work of a German Jewish labour lawyer, Ernst Frankel, who argues that Nazi Germany was a dual state composed of what he calls the ‘normative state’ which is bounded by rule of law and the ‘prerogative state’ which is nothing but ‘institutionalised lawlessness’. In his analysis, Nazi Germany until the end functioned as a ‘dual state’. If India too is a ‘dual state’, then our challenge is how to expand the reach of the ‘normative state’ and limit the power of the ‘prerogative state’. It is in this context that we should go back to our founding constitutional values and work to expand the acceptance of the same in this difficult moment.
While the Hindutva project’s ambition of refashioning India’s society and culture in line with its majoritarian vision is clear, you also discuss the less obvious linkages between capitalism and Hindutva’s Far Right ideology. Can you explain this connection?
I go to Thomas Piketty’s masterly work Capital and Ideology (2019) where he convincingly demonstrates that inequality which results from the framework of capitalism had deleterious consequences for the social fabric. Taking a long view of history, he shows that between 1880 and 1914, the world underwent an ‘inegalitarian turn’, with the period post the French Revolution producing ‘excessive concentration of wealth’ which in turn ‘exacerbated social and nationalist tensions’. These tensions were in turn exploited by the fascists, who went on to capture power in both Italy and Germany. In Piketty’s analysis, the world is facing a similar crisis brought upon us by the unsustainable levels of inequality. The rise of right-wing parties and the appeal of right-wing ideologies owe much to the grave levels of economic inequality wrought by capitalism. Any attempt at addressing the appeal of Hindutva will also have to address the question of social and economic inequality.
Your book brings together a range of evidence to convincingly demonstrate how India is being fundamentally transformed. There is a sense of despair among a wide variety of Indians that the foundational constitutional vision and imagination of the country are being trampled upon perniciously. What then, is to be done, to challenge this incremental assault?
I end the book by asking the question ‘what is to be done?’ and then go on to highlight some of the ways in which this authoritarian regime is being resisted. My point is to bring together dissenting traditions from across the country to indicate that dissent is very much alive today. Be it humour as dissent, dissent in the bureaucracy, the combatting of inequality, the defence of constitutional values; there are alternative viewpoints in contemporary India.
The challenge, of course, is how do all those who will eventually be targets of the Hindutva state—be it the political opposition, human rights activists, Ambedkarites, humourists, workers, farmers, Dalits, women, and others—come together. How can a united front against totalitarianism be created? These are some of the questions I grapple with at the end of the book.
Often people feel powerless to change the status quo. I specifically draw from Arendt’s analysis where she demonstrates how totalitarian states thrive to create this feeling of helplessness and work to ensure that people remain isolated, alienated and alone so that they don’t act together. As she puts it, ‘…power always comes from men acting together, isolated men are powerless by definition’.
THE COST OF DISSENT
I remember the inspirational civil liberties activist K. Balagopal, who made the point that the arrest of Binayak Sen under the sedition law was fundamentally about sending a message that dissent has costs. The psychological objective of Sen’s arrest, in Balagopal’s analysis, was to make people afraid that if they were ever to dissent, like Binayak Sen, they could be arrested. This sense of fear and isolation needs to be combatted.
Activities ranging from attending discussions to participating in protests are important as ways of breaking the sense of isolation. Once people begin to meet each other, the possibility of acting together opens up. When people begin to act together, the process of change is set in motion. Human solidarity creates an environment in which it is possible to actualise the World Social Forum slogan that ‘another world is possible’.
‘The Emergency era is invoked because the subtle mood which envelops the nation now... is one of fear of expressing one’s opinion and of arrest as a consequence.’