Turning the moral order on its head

Arvind Narrain’s wellresearched comparisons with reprehensible events in the past remind us of what went wrong and how to avoid repeating those mistakes

The book has a contentious title. Depending on how much you love or hate the ruling dispensation, “Undeclared Emergency” is certain to evoke contrary emotions. The “Politics of Resistance” in the strapline makes it clear that the book is also about citizens’ struggles against authoritarianism. But never mind the provocative title, the book presents an interesting legal perspective on what ails Indian democracy today and what is worth saving for future generations.

It is never easy to theorise the contemporary without being unduly alarmist or dismissive about what we stand to witness. But the author avoids such traps by using empirical evidence about the state’s dealings with dissent. The focus of the book is the rule of law and the violations of the rights and liberties of the individual, mainly by the state. His well-researched comparisons with reprehensible events in the past remind us what went wrong and how to avoid repeating those mistakes.

The author’s main reference point for India’s democratic backslide is Indira Gandhi’s ignominious internal emergency (1975-77). The rule of law was then undermined through constitutional amendments, questionable legislation and high-handed executive actions threatening the lives and liberties of citizens. The author belongs to the post-Emergency generation but he was part of the legal team that challenged Section 377 of the IPC quite recently and secured a favourable judgment.

The main thrust of his analyses of the Emergency is the misuse of the state power and the points of resistance coming from citizens, activists and institutions. It covers the history of preventive arrests and the UAPA (the Unlawful Activities Prevention Act), the state’s preferred tools with which to deal with dissent. The UAPA, to him, is the symbol of repression in today’s India.

The foregrounding of the Internal Emergency shows how the lack of accountability creates a climate of fear and how easily critics and political rivals could be branded “anti-nationals”.

The spectre of authoritarianism combines fear with suppression of dissent while media and law enforcement look the other way. The author has noted citizens’ resistance to the Emergency, albeit fleetingly, including that of trade unionist George Fernandes and the dissenting judgment of Justice HR Khanna in the famous habeas corpus case. The dissent cost Justice Khanna the post of Chief Justice of India but his assertion that the executive can never go against the provisions of the Constitution is now part of India’s legal history.

The book reiterates that the Emergency had it all, from arbitrary arrests to dubious demolitions and from questionable appointments to the denial of constitutional remedies such as the habeas corpus. This has its obvious chilling effect on all manner of free thinking, the author maintains. In the subsequent chapters, he goes on to explore if Mrs Gandhi’s playbook is being re-enacted in today’s India. He cites the examples of several young people who have been arrested for sedition or for promoting enmity between different groups for merely raising slogans.

The author cites numerous cases in today’s India where intellectuals, students, IPS officers, and those protesting the enactment of arbitrary laws have been arrested under stringent national security Acts. The judiciary, in most of these cases, seemed in no particular hurry to come to the aid of the citizen. The end result is that the process becomes punishment for the dissenters.

Narrain also documents the case histories of the BK-16, or those arrested under the Bhima Koregaon “conspiracy”, to show how the state can conjure a false narrative with the help of “complicit media” to turn victims into perpetrators.

The author builds his case by reminding readers of the horrors of the Emergency. The arrests of political opposition and student leaders, demolitions, press censorship and forcible sterilisations, among many other things, cost Mrs Gandhi her democratic legitimacy, which rightly resulted in a resounding electoral defeat. He tells the story of a 21-year-old engineering student named Rajan Varier who “disappeared” after being rounded up and tortu- red by the police in Calicut and whose father, TV Eachara Varier, fought a tortuous legal battle.

He also cites cases of arbitrary arrests in today’s India by the state, and of coldblooded killings by vigilantes while elements of the state machinery look the other way. But the most alarming things to Narrain, he says, are the creation of a communal consensus against minorities and the intensification of mob lynching for arbitrary and unproven charges. He describes the nonchalance of it all rather succinctly:

“What is troubling about these lynchings is the combination of brutal violence, the indifference of the police and the turning of the moral order on its head with the perpetrators feeling neither shame nor guilt but rather pride in their deed, often taking pictures of the lynchings and putting them on social media.”

The book begins with hardcore legal analysis and ends with a touch of polemics and romanticism. Perhaps it is not the purpose of the book to understand the origins of majoritarianism or hypernationalism. There is no major clue cited of when India’s democratic backslide began. Nevertheless, the book is a spirited defence of Constitutional morality and inclusive nationalism. It calls upon thinking citizens, particularly activists and lawyers, to come together to fight attempts to corrupt human solidarity.

The book, above all, is a brave attempt to question the rulers of our times and their politics of polarisation from a legal and Constitutional perspective.

India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance

Arvind Narrain

314pp, ~699, Westland

Vipul Mudgal heads Common Cause, known for its work on police reforms and high-impact PILs in Constitutional matters