This lecture was delivered as part of the 6th annual History for Peace conference titled 'The Idea of Democracy' which was hosted in Kolkata through August 4, 5, and 6, 2022.
Hello everybody. The topic I am trying to look at is the Bhima Koregaon 16 (BK-16) and their arrest, and what that means as far as Indian democracy is concerned. We need to go back a little and ask the question: Under what law were the BK-16 arrested? Then we get to the question of why they were arrested, and can finally address: What do their arrests really mean for all of us sitting in this hall? The arrests of the BK-16 are, in some ways, for me, part of a larger story. They are symbolic of something larger that is going on. And the larger question really relates to the use of the law called the Unlawful Activities Prevention Act (UAPA).
The UAPA was enacted in 1967; it was amended in 2004, 2008, 2013, and finally 2019. In the course of its various amendments, it moved from a law that criminalized what it called unlawful activity and unlawful association to criminalize terrorism, and the series of acts associated with terrorism, to becoming what it was not meant to be—which is a de facto preventive detention law. Again, if you look at the various transmutations in the 1967 law, a lot of the changes actually happened during the rule of the Congress. Mr. Chidambaram is responsible for some of the most egregious features of the law.
To go back a little bit in terms of the 1967 law, the first big change which happened in this law was in 2004. It was the enactment of the incorporation of terrorist offences within the framework of the UAPA. The context in which it happened is: The Congress had just come to power and they promised, in their manifesto, the repeal of the POTA (The Prevention of Terrorism Act, 2002), which they did. But what they also did alongside was they put many of the provisions of the POTA into the UAPA. At one level, you can say it’s a mere matter of moving the provisions of one law into another, but in reality, it has very serious and dangerous consequences.
I’ll make two points on this. When the first terrorism law in India was enacted, which was the Terrorism and Disruptive Activities Act (TADA) of 1984, an important part of the law was that it had in place what is called a ‘sunset clause’. In other words, every three years you had to defend it before the parliament. If you wanted to renew it, it would have to be by a vote of the parliament. Why was this so? This was because the legislators recognized that TADA was enacted with many fundamental departures from the principles of criminal law, and those fundamental departures needed to be subject to regular debate. A campaign was mounted against the renewal of TADA (because every three years it would come up for renewal), as a result of which TADA was finally allowed to lapse. The next law which came in was POTA which too had a similar sunset clause. And very similarly, there was a campaign against POTA—because thousands of people around the country were arrested under these laws. The conviction rates under TADA as well as POTA were as low as 2.5 percent which implies that a large number of people who were picked up under these laws were innocent people. Thus, the law enhanced the power of the state to arrest innocent people, who had no way of getting out on bail, and were stuck in jail for long periods of time. The periods for which people were in jail under POTA and TADA were greater than five years and sometimes even up to ten years. These were the dangers of these particular laws. However, what allowed us a kind of inroad into these laws was the fact that they had to be renewed every three years.
What this shift from TADA and POTA to the UAPA basically meant was that the question of the sunset clause was now over. It became a permanent part of the Indian legal system. UAPA is not subject to regular debate and discussion and there is no possibility of a campaign every three years saying don’t renew, et cetera. The other central feature of the UAPA, which we are all very concerned about, is the lack of a bail provision that has made bail all but impossible. Unless the magistrate is reasonably convinced that the offence has not happened, he or she is not entitled to release the accused on bail. Therefore, in effect, bail is made almost impossible. That’s the other very important feature.
This aligns with the idea of an undeclared emergency. During the Emergency, you had the Maintenance of Internal Security Act, 1971. The key feature of that act is that you could arrest people on the suspicion that they might commit an offence that compromises India’s national sovereignty, security, et cetera, in the future. It is a preventive detention law: You’ve done nothing, the government thinks there is a possibility you may do something; so you get picked up. But interestingly enough, even as bad as the law was, the maximum period of detention under this law was one year. At the end of one year, of course, the government had a range of things they could do. For instance, they could renew the detention order, et cetera. But on the face of it, that’s what the law says. However, the UAPA is not a preventive detention law in a de jure sense. Our argument is that in a de facto sense, the most dangerous part of the UAPA is that it is a preventive detention law. If you look at the arrests under the UAPA, there is one particularly moving story of this young man called Bashir Ahmed Bawa who was a Kashmiri student of medicine. He comes all the way to Gujarat when he is 33 years old. He gets picked up on an offence of sending people to Pakistan for terrorism training. Eleven years later, the special court acquitted him saying that there was no basis to that particular charge. Eleven years of his life had been lost on a completely false charge.
If you ask whether this is an exception or the rule, I’d argue that this is the rule and not the exception. The evidence for this draws from what Justice Alam points out during a public talk; he says that the argument is that the conviction rate under the UAPA is around 20 percent. However, he shows why that is the wrong way of reading evidence. What you are saying is that in a particular year if there are 20 cases that are booked and there are acquittals in 6 other cases, then you can use these figures to arrive at a seemingly consistent conviction rate. In reality, this ignores the fact that UAPA cases are continuing over a long period of time, whereas only that one particular year is being taken into concern. So actually, if one is to look at the number of UAPA cases that are currently ongoing and the range of convictions, and see acquittals as a percentage of that, the conviction rate comes to no more than 2 percent. Therefore, the essential character of the UAPA is that it functions as a preventive detention law without saying that it is a preventive detention law. And that’s I think a very important point for us to recognize. We see cases all around us. Siddique Kappan, a journalist who went to cover the Hathras rape incident, is still in jail; the BK-16 are still in jail. They are not out on bail, and the trial isn’t beginning. So that’s the conundrum they are stuck in.
One more point I need to refer to in this context is the statute of the NIA (National Investigation Agency), which along with ED (Enforcement Directorate), are institutions we all need to understand. The question is: How do we engage history, sociology and political science professors with this reality of the NIA, ED and UAPA? This is a very significant task. I’ll make this point with respect to one of the law professors from the National Law School. He did a study of the cases investigated by the NIA and came to an important conclusion. Going back a little bit, for a moment, I talked about the conviction rate of the UAPA, which they claim is 20 percent within a one-year framework. It might be as low as 2.5 percent if you look at it over a long period of time. The NIA claims their conviction rate is 90 percent plus. How is that even possible? And the answer you get from that is two-fold. One, of course, is you do the same analysis by looking at it over a one-year period. But when you do the same analysis over a longer period, you get the sense that it’s not actually 90 percent. It comes down to 25 or 26 percent. That is still a very high percentage. How is NIA succeeding in getting a 26 percent conviction rate for offences under laws like the UAPA? There needs to be a study on this. What we are getting from the ground level are stories such as this: If you spend five years in jail, the NIA will come up to you and say that you can spend another five years in jail or we’ll let you go if you plead guilty. At that point, (lawyers) tell their clients to make this decision because we can’t help them make this decision. A lawyer cannot guarantee release to their clients because the law doesn’t permit that. The lawyer doesn’t say, ‘trust the NIA’ because how can I advise anybody to trust the NIA? So, people are literally on their own. And this form of practice the NIA engages in allows for its higher-than-usual conviction rates. We, therefore, need to understand the UAPA and the NIA as two statutory institutions through which the state targets a range of opposition—a range of dissent as it were.
Getting to the question of the BK-16, I wanted to suggest one question: If we analyse the BK-16 and the range of people who have been arrested under this particular law—Father Stan Swamy died in prison, Varavara Rao is 80 plus, Gautam Navlakha is 60 plus. They are all people who are, in large part, in the evening of their lives. Why is the state interested in arresting these people?
I’ll group it a little bit in terms of the forms of activism that are embodied in the work of the BK-16.
The first form is the entire question of what we call Dalit activism. Look at the work of Sudhir Dhawale, the work of the three activists from the Kabir Kala Manch (KKM), as well as Prof. Anand Teltumbde whose work is centered around Dalit activism but is also broader than that. What they embody is a form of Dalit activism that cannot easily be appropriated by the state. We have seen that for a range of very important Dalit activists—their intellectual work has been appropriated by the state. But these figures show that you can’t appropriate their work at all. Why can’t you appropriate them? Look at the work of Anand Teltumbde or Sudhir Dhawale. They are very clear that a comprehensive critique of Hindutva is central to the imagination of Dalit activism. KKM began after the Gujarat riots of 2002—so there’s no ambiguity in their larger ideological framework or their ways of thinking. So, there’s a way in which they are embedded in the identity framework but they are not limited by their identity framework. If you link it to Ambedkar’s work: Ambedkar in the ‘Case for Pakistan’, makes the point that if Hindu Raj ever comes to this country it will be the greatest calamity we have ever faced. These writers, activists as well as poets embody a form of Dalit activism that cannot be easily appropriated by the state, and so can be opposed by Hindutva politics. If you think of it in the contemporary sense through Rohit Vemula’s work: What was Rohith Vemula’s work? He stood for that larger imagination that goes beyond the identity framework and empathizes with a range of causes that he sees as central to his imagination of Dalit activism itself.
The second form of activism with the BK-16 is Adivasi rights activism. Again, we know the work of Father Stan Swamy, Mahesh Routh and Sudha Bharadwaj. What is the form of Adivasi rights activism in which Father Stan Swamy was engaged? His work focuses on the Pathalgarhi movement and the idea of how to take the Constitution and fundamental rights to the people. That’s the central imaginary framework within which their work for Adivasi rights activism happened. If you read Father Stan Swamy’s work—the series of writings which have been put together after his death— you get a glimpse of what he saw in Jharkhand—a range of young Adivasi men who were in jail. He filed a case in the Jharkhand High Court challenging these arrests on the grounds that they were illegal, arguing therefore that they should not have been arrested at all. His work fundamentally opposes the acquisition of Adivasi land to advance state and corporate interests. That is common also to Mahesh Raut and Sudha Bharadwaj. That’s the other kind of imagination of work that the state seems to find very troubling.
The third form I want to refer to is what you can call legal activism. There again you look at the work of Surendra Gadling, Vernon Gonsalves, Arun Ferreira and Sudha Bharadwaj. What is the kind of work that they engaged in? It’s the idea of how we use the normative state, the principles of the Constitution, and the framework called the rule of law, that exists currently, to challenge the power of the state or its illegal activities. If you look at Sudha Bharadwaj’s work, a lot of it is around challenging the question of fake encounters, acquisition of Adivasi land, and rape by security forces. Surendra Gadling’s work is also very similar. It deals with challenging the excesses of the state and saying that the state should be bound by the imagination of the Constitution in the way it deals with opposition or dissent. These arrests are a step forward—you find that lawyers who are defending the rights of activists are also ending up in jail. So, it is a very important signal that the state is giving you in terms of what forms of work it finds difficult to tolerate or accept.
The fourth form of work I want to address is the question of civil liberties activism. Here, we look at Gautam Navlakha and Rona Wilson’s work. Their work challenges what is called the secret state, or the state within a state, or the state to which many of us don’t pay any attention. This implies the kind of human rights violations that are enacted upon the people of India by the security forces, the law-and-order forces, and their intelligence agencies. They are focusing on areas that are usually neglected—be it in Chattisgarh, Kashmir, or the Northeast, and the kinds of violations that are committed by security forces and state forces there. This, therefore, also shows the absolute centrality of civil liberties’ work in making the state accountable for its actions.
The final form of activism which I will refer to is activism in academia. This refers to the work of Prof. Hany Babu, Prof. Soma Sen and Varavara Rao. Varavara Rao’s book, Captive Imagination: Letters from Prison, has a beautiful introduction by the Kenyan writer Ngugi wa Thiong’o. Ngugi says in the introduction that writers and intellectuals are feared by the state because of their imagination and the ideas they try to put forward, which is why the state seeks to imprison them. Of course, Ngugi’s point is that the state can never fully imprison these ideas—the ideas will flow out from behind the prison walls as it were. These are, in a sense, the forms of activism we have to look at.
We have to make one more point in the contemporary context. If we look at the two recent judgements by the Supreme Court—in the Himanshu Kumar case as well as the Teesta Setalvad issue, we see that attack on activism has taken a renewed form and that the judiciary is complicit in a sense, on these attacks on activism. The point I want to make here is: What is the judiciary really saying in Zakia Jaffri’s case because of which an FIR was filed and Teesta Setalvad was arrested? The judiciary is saying that there are victims and there are activists, and the two should be in separate domains. If the victim chooses to come to court, that is fine; if victims are assisted by activists, there is something suspicious about the whole thing, something collusive about the whole process. You ask the question why. You go back a little to understand what activism is. We all know there’s a certain way in which Teesta Setalvad and Himanshu Kumar’s work gives people the strength, courage and ability to negotiate these various systems and to try and take forward the cause of justice, as it were. It is very difficult for victims themselves to stand up and access or move through the judicial system because of its various complications. It is here that we have the judiciary coming down on activists who approach the court in coordination with victims. So that’s another form of attack that we are seeing in the contemporary period on activism itself. I think I’ll end with that.
Q and A
Suchitra Vijayan: Arvind, thank you for that. I have two questions. You spoke about the UAPA as a system of laws that entrenches impunity within the current society. But, it’s not just the law, is it? You also have the judicial system. So, my first question is: Assuming that the judiciary acted as the judiciary ought to have acted, was there ever a possibility for the current judiciary to have resisted the legislative totalitarianism that was imposed on society through these very laws?
The second question is: How would you define the constitutional culture of India today? I am not just talking about the conversations that happen in spaces like these or the English-speaking conversations mostly on questions of democracy and secularism. I am talking about the constitutional culture at the lowest courts all the way up to the apex courts.
A.N.: Thank you Suchitra for the two questions. One way to address your question on these forms of assault and how they can be resisted within the framework of the judiciary itself is to go back in terms of the historical context. Here, we refer to the idea of 1975 – 77, as well as look at the contemporary moment. In 1975–77, all institutions collapsed or caved in to the executive but there’s one shining example of dissent—the opinion of Justice Kannan in the ADM Jabalpur v. Shivkant Shukla judgement. Again, what was the ADM Jabalpur judgement? The question of arrests and detentions under the Maintenance of Internal Security Act came up before the Supreme Court. The Supreme Court overturned what 9 high courts had decided—that the arrests and detentions under MISA were illegal and the arrested should be released. The Supreme Court basically said you don't have the right to life and you cannot access that right during the Emergency. Again, if you go back a little bit, it links back to Suchitra’s question. What did the high courts do? They didn’t do anything radical. They basically said that the maintenance of internal security sets in place a legal framework under which arrests and detentions can happen. The basic framework there was—if there’s a detention order, it should be signed by the authorities who are authorized to sign the detention order, and it can’t be unsigned. What the 9 high courts argued was that even within the framework of MISA (which we all agree is a draconian piece of legislation), the state didn’t conform to the basics of the rule of law. Therefore, they struck MISA down. This was then overruled by the Supreme Court. What is interesting to me, is that even in that atmosphere of fear and intimidation, Justice Khanna stood by his understanding of the Constitution. He made a very important point, saying that the Supreme Court or the executive cannot do away with the right to life by executive fiat. The right to life is something that we all have. Even if the Constitution is not there, there is a right to life. He said dissent in a court of last appeal is an appeal to the intelligence of a future day. We have to go back to the dissenting imaginations within the judiciary, go back to brave opinions such as this and try bringing them to the surface and say: that is the future of the Indian Constitution. It’s a difficult task but I think that’s the task one has to take forward in the critique of these various laws, such as the UAPA. The fact that the MISA has been critiqued in the past through the judgement of Justice Kannan tells you that there are ways in which this critique can happen.
Again, the dissenting judge Fazl Ali in the AK Gopalan v. State of Madras is of importance here. What does he say? The case upholds the validity of the preventive detention act, and the dissenting judge, Fazl Ali makes the point—going back to the language of the statute—which basically says no person can be deprived of life except by a procedure established by law. The majority holds that the preventive detention act is a law which is enacted by the parliament, therefore you have no recourse. Fazl Ali’s dissent is in his understanding of the law—that when you say law, it does not mean any enacted law but rather a law that is linked to justice and fairness. That’s the understanding that he puts forward. So how do you resuscitate that imagination of law? The judiciary has resuscitated that imagination of the law in the case of Maneka Gandhi v. Union of India as well as the R.C. Cooper v. Union of India where the judges have come up with the idea that the law is not just any enacted piece of legislation, but rather, the law has to be linked with justice, fairness, et cetera. Of course, the point that limits this imagination is that this idea has never been applied to overrule preventive detention laws such as POTA, TADA, MISA, and the UAPA— the current challenge with which we are dealing.
Therefore, the challenge still remains. How do we take these ideas forward in the critique of these laws? One of the ways in which lawyers think about it is within the framework of today but also see what comparative examples you have. How do you build that case—is there a way you can build the case as a challenge to these laws, based on the decisions of courts in other parts of the world? We’ve had an easier task in doing this in cases such as Section 377 where we find a range of judgements around the world which support your cause. As far as challenges to security laws are concerned, it is a far more difficult challenge in terms of the resources within the framework of comparative jurisdictions, as well as taking this critique or idea forward. Within international law, there is a lot more ground to take this critique forward—the idea of the defense of a rule of law and the premise of unconstitutionality of preventive detention law. If you look at the PMLA judgement (Vijay Madanlal Choudhary v. Union of India, a case that debated the constitutionality of the Prevention of Money Laundering Act), the SC is very happy to cite international precedents when it comes to such questions (such as money laundering), whereas, in this current moment, they don’t seem as happy to cite international precedents when it comes to the question of fundamental human rights. So that’s the challenge we have before us.
Your second question on constitutional culture and how to define it. I was talking to T.M. Krishna a little while ago. This entire question of going back to Ambedkar’s thought is a very powerful one. He (Krishna) says constitutional morality is not a natural sentiment and people are yet to get it—it is something that has to be cultivated. He goes on to say, “Democracy in India is a top dressing on a soil which is essentially undemocratic”. This takes you back to a range of conversations we’ve had. Part of the challenges within the legal framework is: How do you build a constitutional culture which is built on the fundamental ideas of dignity, equality, liberty and fraternity? That’s the challenge before all of us. The way I think about that question is how do we get in a constitutional imagination within the framework of the courts?
Apoorvanand: You talked about the UAPA but can you please educate us further on it, because we think that if a crime has been committed in the eyes of the police or the executive, it is well within their rights to arrest me. So, what is this whole thing about arresting a man? And how does it deprive the person of his liberty and what are the international practices? For instance what is it about the case of Mohammad Zubair for example. I’ve read what Shahrukh Alam and others have written about his arrest and the general norm of keeping people in detention for perpetuity till an investigation is conducted and how investigations will go on endlessly and the person will remain under arrest all the while. Why are arrests the first resort?
Second, this whole idea of our courts turning into executive courts—what is the relationship between executive and judiciary? Why does Gautam Bhatia say, for instance, that now our courts have decided they will act as executive courts?
Sudipta Sen: I have a question on this idea of the security of the state or the security of people being violated by any form of thought or action. So, when you are arguing in a court of law in India, either at the apex court or the high courts in India, is there any attempt on the part of the state to at least try to articulate or define even nominally what security means? Whose definition of security, whose definition of public peace?
I work on colonial law and the history of colonial law. Back in the days before the crown rule and the Supreme Court, being under the judicature of East India Company, even the king had no obligation to explain why the law, even to people who violated the law and were held accountable under it. There was no concern about whether people actually understood the law. Non excusat was the Latin phrase they used in colonial records. Ignorentia legis is the actual Latin phrase. Ignorance of the law is no excuse for an illegal act. So, I guess I am adding a slightly bigger question to the first one: Indian law is not sui generis, it’s actually based on colonial law. If you take this back, I wonder if even—and this is a terrible thing to think about—maybe colonial courts allowed for more latitude in the interpretation of evidence than what we are seeing today in cases of sedition.
A.N.: I’ll start with the last question. Security of the state, in terms of the understanding of the law, can be quite specific. In Ram Manohar Lohia v State of Bihar, the court analyzed things in terms of three concentric circles. The court held that there’s something called law and order which is the larger circle. Within that, is a small circle called a public order. Within that, a still smaller circle called the security of the state. Apoorvanand and me fighting on the streets is a law and order issue whereas two religious communities clashing would be a public order issue. But the security of the state travels much further than that, wherein fundamentally you find that the state itself is being threatened. This is what the Supreme Court laid down in the case. We know what the security of the state is; not everything is security of the state. Unfortunately, the interpretation of the judiciary has not taken this point very seriously into consideration in their bail orders. The one important exception has been the Delhi cases, where in the Asif Iqbal Tanha v State of NCT of Delhi case, or the Natasha Narwal v State of NCT of Delhi case as well as the Devangana Kalita v State of NCT of Delhi case, that was the point they made. They made the point consistently which is very important. Often we say you can look at both sides, the idea of a terrorist act is too broad, too vague. This is one line of thinking. The line of argument that the Delhi High Court took was: it’s not that vague. It's quite clear that when you are protesting on the street, at most it is a law and order issue. If there is a question of communities clashing, it may become a public order issue. But, how does a chakka jam or a protest become a threat to the security of the state? They, therefore, applied that legal logic to assert that protest is not a question of the security of the state. That’s the interpretation we need more courts to think in terms of because the law is there—you just need to apply that particular interpretation, as it were.
Apoorvanand’s question in terms of why should arrest be a matter of the last resort: It will go back to the constitution and the fact that Article 21, recognizes your right to life and personal liberty. This is the constitutional starting point. But the point is, it only begins to make sense if that particular constitutional imagination finds its expression in the criminal procedure court. That is present, to some extent, in section 41-A of the CrPC which mandates that notice can be given to an accused to appear before the police rather than immediate arrest. Here you have the idea that arrest is not a first option. The fact that a notice should be issued to the person and that they should be allowed to answer to that particular notice before the question of the arrest comes in is some kind of recognition of the idea that arrest is a matter of the last resort. Of course, there is enough and more Supreme Court jurisprudence that makes that point. But again, the gap between what the supreme court has laid down and how it’s being used is quite stark, gray and really quite large. Apoorvanand’s second question on why Gautam Bhatia makes the point that courts have turned into executive courts goes back to the question of constitutional design and how we see the role of the courts. When you say Article 32 and Article 226, the idea is in some ways that the courts play their role wherein they are able to challenge the state or basically ensure that the state functions within the normative framework of the Constitution. And when the courts refuse/fail to do so, then the executive has a free run. The point is very simple—while the state is powerful the individual is isolated and lacks power. Thus, it’s very important that the judiciary comes in and ensures it protects the rights and liberty of the citizens. When it fails to do that, then what does one say but that the courts are turning into the arm of the executive by legitimizing and rubberstamping whatever the executive does? That being said, what is the court? Are there many Supreme Courts, or is there one? These are all very important questions for the simple reason that each bench ends up deciding very differently, as it were. It’s either a three-judge bench or a five-judge bench, and different benches decide in different ways. The tenor of the decisions is going in one particular direction but I think we need to keep stressing the question of the constitutional framework and hoping the Supreme Court conforms to that constitutional framework.
Audience member 1: We are speaking about all of this within the context of democracy. I was wondering whether you had any thoughts about how the judicial system is perhaps developing a mechanism to deal with media/ social media trials, and how does the system feel about it?
A.N.: That’s an important question regarding the role of the media in terms of how justice finally plays out. Can the judiciary be immune to the pressure created by the media? Can the judiciary decide on matters of law and constitution without taking into account the impact of the media? That’s the question before us, and it’s a tough one to answer. There are not many cases in which that happens. Maybe just one example to the contrary where the judiciary was completely immune to the pressures of the media would be the 2013 decision by the Supreme Court in terms of recriminalizing same-sex relationships. The media was very clear, as was public opinion that this can’t be an offence. But Justice Singhvi, decided to uphold Section 377 in spite of a compelling media narrative to the contrary. There are judges who could be immune to that kind of pressure but I don’t know what more to say about that.
Audience member 2: Thank you for listing out the motivations behind the crackdown by the current regime on a number of activists. I was wondering if one of those motivations is to champion neoliberal economics—where the cornering of national resources by preferred business houses should become an unchallenged idea, and therefore anybody who could pose a threat, for instance, Stan Swamy, who would perhaps fit in that framework, would be stifled. So how do you look at the current regime’s commitment to neoliberal economics and within that, their unprecedented effort and serious commitment to reallocating national resources to a few business houses? Could you also talk a little bit about the role of Pegasus in implicating or planting evidence to the personal computers and digital devices of some of these activists? I feel that if there was no UAPA, they might have enacted a more draconian law just to implicate this set of activists who challenge all their projects. That could be a version of creating the nation in the image of their own ideology— through the frame of neoliberal economics.
A.N.: I think the issue of the neoliberal economic framework is obviously quite central to the imagination of the current administration and the current government. The UAPA has been invoked against people who challenge that particular model. The laws have been amended in line with that particular imagination. If you look at the four labour codes which basically dilute labour law protection or the dilution of the range of environmental safeguards—those are examples of a neoliberal economic model as far as the current administration/government is concerned. I think it’s an important point also because when there’s so much focus on the religious and the religious identity question, there’s a lot more which is happening under the surface as it were. And one part of that, of course, is the accelerating process as far as the entire question of inequality is concerned. If we look at Piketty’s work, Capital and Ideology, he makes the point that India is among one of the most unequal societies in the world today and that’s a fundamental part of continuity from the past but also something that has been accelerated in contemporary times. Piketty states that from the time we had income tax records—from 1789 onwards—the most unequal the world has ever been was the period right after the French Revolution leading up to the First and Second World Wars. He makes the case that we are approaching similar levels of inequality today. So, there is a crisis in terms of inequality and the crisis is linked, in a sense, obviously to the provenance of the neoliberal model. I agree with you on that particular point.
On the question of Pegasus—that has taken matters to a different level where the state is complicit in the implantation of evidence and manufacturing a case against the BK-16 in this particular case. So that’s a different level of criminality in which the state is engaged. The response of the Supreme Court was to constitute a committee to look into the allegations without passing any strictures against the government. Again, if you go back to the current chief justice and the range of decisions that he has given, the constitution of committees seems to be his preferred mode of operation—be it in the case of Anuradha Bhasin v. Union of India or in the case of the Foundation for Media Professionals v Union Territory of Jammu and Kashmir & Anr. with respect to the suspension of internet services in Kashmir. Again, you outsource your constitutional responsibility to a committee and the committee comes up with a diluted finding. It is disappointing as it’s very important that the court continues to play its role rather than outsource its responsibility to the executive when the executive is the violator. That’s a question one has with respect to the Anuradha Bhasin judgements but the Pegasus case is different because it’s headed by a retired Supreme Court judge. So we’ll have to see what finding the committee comes up with.
Krishna Kumar: Over the years, I’ve been curious to know from a lawyer or a judge how the word ‘activism’ is to be understood. My curiosity has some history. Several years ago, I was looking for a word that could be used to translate this word (activism) into Hindi and despite seeking much advice or applying my own mind, I couldn’t find a suitable word in Hindi that will convey the various meanings in which this word was being used since the 1980s at least, which is the decade in which popular use of ‘activism’ was born. Since then it has been expanding in terms of its popularity in various fields. In your lecture, you talked about four spheres within which activism takes place. It’s a very peculiar word because when you add ‘ism’ or ‘ist’ to an existing term that is quite strong to begin with—active, what is it that the activist adds to being active? At what point does normal professional activity get into the domain where the normal professional (whether he is a lawyer, a doctor, a teacher, a writer or anyone) can now be defined as an activist?
A.N.: I am trying to think of this more from the point of view of the law and the Constitution. If you think of the entire emergence of public interest litigation, an activist is someone who goes out of their own professional domain and activates another grouping or helps or associates with another group to bring about change. How do you activate a certain grouping and bring an issue before the court? Professor Upendra Baxi’s terminology for this is ‘social action litigation’, not public interest litigation. By social action litigation, he means a form of organizing that happens which allows that community to raise its issue with professional help, support, or advocacy, and place it before the courts. Within the courts, that would be the understanding of activism. It’s an important point because, in the PIL heyday, activists were celebrated by the Supreme Court. Activists were seen as people who responded to the social concerns of the day and in a sense, associated with the court to try and address the social concerns through the intervention of high courts or the Supreme Court. But I think after the judgement in the Zakia Ahsan Jafri v. State of Gujarat & Anr case as well as in Himanshu Kumar v. State of Chattisgarh case, we are seeing the exact counter-imagination of who activists are. Activists, as far as the current moment is concerned, are not seen as people who help bring issues before the court but as those who are colluding to defame the state. That seems to be the imagination of ‘activists’. While an activist, at one point in time, would be understood as someone who addressed social justice concerns, today, an activist is perceived as someone engaged in defaming the state and colluding with victims to raise false concerns.
K.K.: Can a political leader also be an activist according to you? A politician by profession can also be defined as an activist, that’s what several people seem to be writing these days. Some people are now saying in historical terms that Gandhi was an activist. So today, in the current environment, if we go by your definition, which sort of confines activism to bringing the attention of courts to social justice phenomena, how do we interpret that view (the view that political figures like Gandhi were activists)? That’s where this question arises in my mind.
A.N.: I would have no disagreement with that. I was just trying to think of that in a very narrow frame in terms of what would be an activist in the imagination of the court—that’s the only point I was making. Can a politician be an activist, can an academic be an activist, can an artist such as T.M. Krishna be an activist, can a lawyer be an activist? Of course. Everybody can be an activist. I think the simple point I would make is that when you are able to go outside the framework of your professional concerns and limitations to take on something and place it in the public domain, you end up becoming an activist. So yes, a politician can become an activist. Of course, you can’t think of Gandhi without thinking of activism, you can’t think of Ambedkar without thinking of activism—so all of them would come within the framework of who is an activist because they go beyond the realm of the professional borders or boundaries within which they are supposed to function.
K.K.: It’s very difficult to agree with this view because Gandhi always insisted that he was a political leader. Sorry to insist on this point. But this retrospective use of ‘activism’ is a bit problematic to me because at least these leaders that we are describing, perceived themselves as proper political leaders. They were politicians fighting colonial rule or organizing a party, expanding the party, and so on and so forth. In a standard definition of what it is to engage in politics, Gandhi’s entire career whether in South Africa or in India, could be described as the career of a political leader who was driven by a political urge, driven by a certain degree of his ethical concern. Now, to anachronistically treat them as activists requires the training of one’s imagination, mind, and ideas, to this day.
S.S.: I just wanted to add something that I am picking up in this discussion, which is actually quite chilling. It’s not so much what you are saying but the terms in which we are having this conversation. The way we are using the phrase ‘the state’ and the way we are using the concept of people protesting injustice sets up an amazing duality which is that somehow the people who are citizens of a state are not part in many ways of the entire legislative and executive processes that constitute the state, which is willed into reality by their very existence as political individuals. If we can see this point, and I am sure I am trying to exaggerate it specifically here but that is the basis of totalitarianism where we are getting used to the idea that the state exists, has its interests, and a deliberate lack of transparency in the way decisions are made. The more we get used to this idea, the more we are sliding towards a completely opaque state which really does not pay anything beyond lip service to its obligations either under the constitution or the way the law is framed and the legislative processes and executive actions. I hope I am wrong.
A.N.: I think the point you are making is an important one. When you have a state, which is authoritarian, exercising its will against individuals arbitrarily—almost whimsically—and people are sitting by and doing nothing, that’s a very troubling moment. The idea that your preambular promise—liberty of thought, expression, belief, faith, and worship—is being violated begins to affect more and more people. How do people begin to see that this is not acceptable? It’s not just me being in my own professional domain of law; it matters to all of us. It’s also about our collective life, our larger political life. It’s something for which we need to be able to step outside our framework and say this matters to us. I think that’s where the question of activism comes in. We can’t afford to all be in our own professional domains alone. While that is important, it’s important to also come out, if necessary, as far as protests are concerned and a range of ways in which we understand our larger political life—our larger collective life is at stake. Going back to the question of activism, I would say that the point of activism is when we recognize the fact that there is something that can affect my existence that is not linked to my professional domain alone; there is something that I need to respond to because it’s about our entire collective life and part of that is, of course, the entire question of the authoritarianism of the state which we have to take seriously because if you’re not affected today, you are likely to be affected tomorrow. Take a simple case of a Hindu man falling in love with a Muslim woman in the state I come from—Karnataka. Outside the framework of politics, it just happens that they are in love with each other. But today, the possibility is that the Muslim man can be charged under the freedom of religion ordinance. What does the ordinance say? The ordinance basically says that what is an offense is conversion by fraud, conversion by allurement, conversion by inducement, and conversion by marriage. Therefore, both of them are implicated in that. So, it goes outside a narrow professional framework and we all need to be able to get to see the dimensions of that. I think I’ll give one more example in terms of the freedom of religion ordinance in Karnataka. It also criminalizes what it calls allurement. What does allurement mean? In the way the statute defines it, allurement is defined as a conversion offering scholarships, medical support, and education. In effect, any charitable impulse people have ends up coming under criminal law as it were. So, there are a range of ways in which what is being enacted by the state affects the principles which are very central to who we are—be it fraternity, liberty or equality. I, therefore, think it’s very important that we think as activists and not just as professionals.
Audience member 3: I’m just going to take a step back from the semantics and the technical aspects we’ve all been speaking about. This question came to me when I was thinking about the title of your last book (India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance) and I was thinking that only a lawyer in today’s times would dare to have a title like that because you are empowered in ways that most common people are not because we are talking about laws that implicate the state, which the state uses to oppress. The question is about legal literacy. Studying law is one thing—it comes much later in life and it’s not a choice many people can make. We have spent three days trying to formulate how we can teach the idea of democracy. When we get down to it, we are a convention of teachers here. As far as I know, the common person is afraid of the judicial system and terrified of being dragged into a legal case. So, when we are talking about educating and creating empowered citizens for tomorrow, who value the idea of democracy, we are failing to equip them with any tools. Especially the legal route seems completely inaccessible and out of reach for most people. So, is there a way we could educate our children and equip them with at least the basic tools? I know the study of law is a difficult, long and complex process but how do we at least start familiarizing students by making them unafraid of law as a system or tools they could resort to? Do you know of tools or resources schools could use that at least start acquainting our children with the legal system? I really think it’s important to get rid of the fear of law and legal resources.
A.N.: Thank you. Here, perhaps, one distinction to make is between the law and the Constitution. And perhaps the point to make is there is an imperative for a wider constitutional literacy or the building of a constitutional culture. Constitutional culture in this case would necessitate going back to Prof. Baxi’s point about the Constitution being a footnote to the Preamble. So you go back to the Preamble. How do we internalize the values and ideas of the Preamble? That would be an important question for me. Here, I think the way of demystifying the Constitution and even the Preamble is understanding both through the lens of history. How does history contribute to understanding each of these provisions, as it were? I’ll give one example here:
If you go back to the Preamble, the argument that Akash Singh Rathore makes in his book, Ambedkar’s Preamble: A Secret History of the Constitution of India, is that two concepts are there in the Preamble but not there in the Objectives Resolution moved by Prime Minister Jawaharlal Nehru—dignity and fraternity. He argues that dignity and fraternity are there in the Constitution because Ambedkar wanted them there and he provides some textual evidence for that. The textual evidence is much stronger for fraternity, less strong for dignity but nonetheless, it’s there. Going back to the point: Why did he want dignity in the Constitution? If you try and read that in terms of Ambedkar’s work, during the Mahad Satyagraha, he makes the point: Why we are asserting our right to drink the water in this particular tank is not because the water is of exceptional quality; we are asserting our right to equality as every other person. Then he makes the point that what they want is not bread but dignity. The word dignity is very important to him and again, perhaps if you read it going back to Ambedkar’s early work which is his autobiographical writing, Waiting for a Visa, links up to school education. What does he say about school? He says that when he went to school, he had to carry a gunny sack with him. He was made to sit on the sack, and then come back home. He says, if he wanted to drink water, he had to wait for another person who had to open the tap because he was not allowed to touch the tap. If that person felt in the mood, he would open the tap, otherwise, he would go without water. In an experiential sense, therefore, you get why dignity was important for him. His experience was humiliation, so dignity was an important counter to the idea of humiliation. So maybe to centrally get out these ideas: What does dignity mean, what does fraternity mean? Perhaps one way of reading the question of fraternity would be to go back to Ambedkar’s Annihilation of Caste, and the idea that one way of annihilating caste is when blood begins to mix with blood. He is, therefore, pointing towards the entire idea of inter-caste relationships. Is that what we think of when we say fraternity? There’s a lecture by Professor Krishna Iyer on Shankar Guha Niyogi in which he made a very beautiful point. He said that what Niyogi did is he breathed life into the Constitution for the Adivasi population of Chattisgarh. In a similar sense, how do we breathe life into the Constitution? So, we have to communicate to students a life sense of what these concepts—dignity, fraternity, equality and freedom mean.
Audience member 4: Delays in habeas corpus hearings are sometimes exacerbated and excused by the courts being understaffed. The last time I saw the numbers, there were 380 odd vacancies in the high courts and that’s about 40 percent of the high courts lying empty. Has it ever been this bad and is there any movement within the legal community to get rid of the executive assent so that at least the 1,100 odd positions that are supposed to be filled in the 25 high courts are indeed so? I think the caseload right now is 8,000 cases per judge and even when it is fully staffed, it will be 5,000 cases per judge. Is there anything being done about that in the legal community?
A.N.: Important question. The conceit within the judicial fraternity for all these years is that in India, judges have the determining say in who is appointed as a judge of the higher courts. That was the first and the second judge's case. The executive seemed to go along with it until this executive came along, of course. Now the executive has made it very clear that the appointment of the judges is subject to the consent of the political executive. If you don’t have the consent, then your appointments get held up or get delayed. It’s a difficult question because at the end of the day, what power does the judiciary have? It doesn’t have the power of the purse or the sword underlying it. So how does it ensure that its decisions get respected by the executive? That is the challenging place the judiciary finds itself in. The executive can’t pick and choose which judge it chooses to appoint, which is what the executive is doing today. Justice Nariman stood up for the principle that the executive cannot pick and choose, but then that resulted in a huge backlog, vacancies et cetera, which the executive is totally unconcerned about. So, it’s a very challenging place to be in.
Audience member 5: I am bad with article numbers and section numbers (of the Indian Constitution) but one of the articles that the Supreme Court used to justify the collegium system was 142—the article that gives the court discretionary power to make extraordinary decisions. Can that same article be used in some sense to nullify the effect of the executive assent or to put an expiry date on it? In the sense that if let’s say, a recommendation was sent to the President, they have to reply within six months or it will be a default yes? Are there any interpretations of that article to justify such a claim?
A.N.: We have to get into the politics of the judiciary here. When is the judiciary most powerful? The judiciary seems to be most powerful when the executive is at its weakest. We are not in that place now, where the judiciary is going to assert itself in the way you are suggesting that it asserts itself. In the heyday of PIL, possibly, they could have gone down laying down the law, saying: ‘This is the law’, which is sort of what they did. They basically said, what does concurrence of the Chief Justice mean? It means consent. They said you can’t appoint a judge without the consent of the Chief Justice. That’s the line they took in the first and second judges’ cases. They’ve not been able to stand with what they decided in those two judgements and ensure that the executive’s approval is a matter of formality. Thus, the power is not what it should be.
Arvind Narrain has been involved with research, writing and practice related to law and social concerns and visiting Faculty at the National Law School and Azim Premji University. He is also the President of the Peoples Union of Civil Liberties Karnataka. He is the author of India's Undeclared Emergency, co-editor of Law Like Love: Queer Perspectives on Law as well as co-author of Breathing Life into the Constitution. He was also a part of the team of lawyers challenging Section 377 of the IPC right from the High Court in 2009 to the Supreme Court in 2018.