In India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance, Arvind Narrain presents a thorough examination of the Emergency declared in India by the Indira Gandhi government in 1975 — a systematic attack on the rule of law that hits at the foundation of a democracy, its Constitution. The legal analysis of its implications also documents an ongoing history of constitutional subversion, one that predates the Narendra Modi-led NDA government — a lineage of curtailed freedoms, censorship, preventive detention laws and diluted executive accountability.
The book shows that the Modi government, unlike the Congress government of 1975, draws on popular support and this raises the dangerous possibility that today’s authoritarian regime could become tomorrow’s totalitarian state.
The following are excerpts from the book.
Targeting Civil Society: The BK-16 and Beyond
Justice Chandrachud’s dissent is a field guide to unpacking the Bhima Koregoan case. As he observed, ‘… the Court has to be vigilant in the exercise of its jurisdiction under Article 32 to ensure that liberty is not sacrificed at the altar of conjectures. Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes.’
He was alluding to the falsity of the cases against those imprisoned, their status as dissenters and the importance of dissenters in a democracy. The use of the UAPA in the Bhima Koregoan case has made bail a remote possibility, and the trial is yet to commence as of October 2021.[1]
The other critical method employed in the BK-16 case was the use of malware to implicate them. When the Caravan magazine did a ‘cyber-forensic examination of the contents of Wilson’s hard disk’, it found that ‘the disk contained malware that can be used to remotely access the computer and plant files’.[2] More recently, Arsenal Consulting, a global expert in digital forensics, analysed Wilson’s hard disk and found that ‘Rona Wilson’s computer was compromised for just over 22 months’ and the primary goals of the attacker were ‘surveillance and incriminating document delivery’. Arsenal found that there was ‘no evidence which would suggest that the top ten most important documents used in the prosecution against Mr. Wilson were ever interacted with in any legitimate way on Mr. Wilson’s computer. More particularly, there is no evidence which would suggest any of the top ten documents, or the hidden folder they were contained in, were ever opened’. It also found that ‘the incriminating documents were delivered to a hidden folder on Mr. Wilson’s computer by NetWire and not by other means’.[3]
A similar analysis of Surendra Gadling’s computer revealed that the fourteen documents deemed by the defence to be vital to the case against him were ‘delivered to a hidden folder (named “Material”) on the tertiary volume of Mr. Gadling’s computer by NetWire and not by other means’. Further, Arsenal concluded that on one particular day, ‘July 22, 2017 … the attacker was deploying documents to a hidden folder on Mr. Gadling’s co-defendant Rona Wilson’s computer approximately fifteen minutes prior to deploying documents to a hidden folder on Mr. Gadling’s computer. In addition to the attacker’s deployment methodology being identical between the two deliveries, one of the deployed documents … was identical’.[4]
Based on the analysis of Gadling and Wilson’s computer, Arsenal concluded that ‘this is one of the most serious cases involving evidence tampering that Arsenal has ever encountered, based on various metrics which include the vast timespan between the delivery of the first and last incriminating documents on multiple defendants’ computers’.[5] Mihir Desai argues that what makes this regime particularly dangerous is this move beyond surveillance and charging persons on weak evidence to actually fabricating evidence and manufacturing a larger conspiracy.[6] This level of manipulation and fabrication of evidence is, according to Desai, unprecedented in the use of anti-terror laws.
The invocation of the UAPA by the police and the NIA and the painstaking effort to implicate the BK-16 through electronic surveillance and implanting of evidence seems out of proportion to the threat that this disparate bunch of activists, many of them in the evening of their lives, could actually pose to the State. The only way one can make sense of it is by bringing together some of the thematics embodied in the lives of those arrested. All of them are activists engaged in making the State accountable, and they speak on issues that the Central government finds particularly troubling.
The first strand of activism embodied in the work of the BK-16 that the regime finds threatening is the re-imagination of Dalit activism. What unites Dhawale, Teltumbde and the Kabir Kala Manch trio of Gaichor, Gorkhe and Jagtap is that, for them, Dalit activism is about taking on the Hindutva State. Teltumbde in his writings, Dhawale in his activism and Gaichor, Gorkhe and Jagtap in their songs embody Ambedkar’s vision that ‘Hindu Raj’ would be ‘the greatest calamity for this country’.[7]
[…]
Cultivating Constitutional Values
Since the challenges of the contemporary era include both the authoritarianism of the State and an intolerant society, it is important that society be equally the focal point of activism. The constitutional values embedded in the Preamble, of liberty, equality, dignity and fraternity, need to take deeper roots in society. Undoubtedly, all four values that underlie the Constitution are under threat today.
These values are articulated not only in the text of the Constitution but also in the Constituent Assembly Debates, the history of the freedom struggle as well as in literature and dissenting Indian traditions. Kabir and Basavanna, the poets from the north and south of India respectively, are only two examples of thinkers who articulated fraternity centuries before the French Revolution. More recently, writers such as Mahasweta Devi from Bengal and Girish Karnad from Karnataka have given expression to humanist values which find an echo in the Constitution. These values can be communicated through a wide range of mediums, be it literature, myth, history or popular culture.
When it comes to liberty, especially the freedom of speech, expression and association, an exemplary defender was Gandhi. He was the strongest critic of the sedition law and vociferously defended the right to dissent. When he was being tried for sedition by the colonial government for his anti-government writing, he famously defended his right to be seditious, arguing that the government could not compel him to have affection for it:
Section 124-A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite violence. … I have no personal ill will against any single administrator; much less can I have any disaffection towards the King’s person. But I hold it to be a virtue to be disaffected towards a Government which in its totality had done more harm to India than any previous system.[8]
The exercise of the freedom of speech is important, as silent complicity provides the foundation for an authoritarian State. A sense of pervasive fear prevents citizens from exercising this right. As Ravish Kumar writes, ‘If you can’t speak up before friends, how will you ever stand before the government to criticize it? You will have to start practicing speaking up somewhere. Things aren’t so bad yet that no one can speak out.’[9] The cultivation of liberty demands that you overcome the culture of fear and express your opinions even if they go against a prevailing societal and political consensus.
Cultivating constitutional values is also about challenging inequalities embedded in society, with relation to caste, gender, sexual orientation or gender identity. This is sometimes more difficult than standing up to the State, for challenging the norms of the society in which one lives can mean facing criticism, alienation and ostracisation. Ambedkar understood this:
Most people do not realize that society can practise tyranny and oppression against an individual in a far greater degree than a Government can. The means and scope that are open to society for oppression are more extensive than those that are open to Government, also they are far more effective. What punishment in the penal code is comparable in its magnitude and its severity to excommunication?[10]
Challenging these social orthodoxies, all of which constrain human freedoms, is a key aspect of a transformative constitution. To defend the transformative constitution is not to defend the status quo, but is instead a dynamic call to challenge the inequalities embedded in society. The defence of constitutional values is, at its heart, about the non-negotiability of the dignity of the individual. It is a difficult concept to define, but Ambedkar hinted at its essence by contrasting it with economic want:
If I may say so, the servile classes do not care for social amelioration. The want and poverty which has been their lot is nothing to them as compared to the insult and indignity which they have to bear as a result of the vicious social order. Not bread but honour is what they want.[11]
Notes:
1. As noted above, see Section 43 D(5) of the UAPA.
2.\ Martand Kaushik and Anjaneya Sivan, ‘Bhima Koregaon case: Prison-rights activist Rona Wilson’s hard disk contained malware that allowed remote access’, The Caravan, 12 March 2020, https://caravanmagazine.in/politics/bhima-koregaon-case-rona-wilsonhard-disk-malware-remote-access.
3. Arsenal Consulting, In the Court of Special Judge NIA, Mumbai Special Case No. 414/2020 National Investigating Agency v Sudhir Pralhad Dhawale & others, Report I, 8 February 2021, https://arsenalexperts.com/.
4. Ibid., Report III, 21 June 2021.
5. Ibid.
6. Mihir Desai’s public lecture, ‘Terror laws under a Proto-fascist regime’.
7. B.R. Ambedkar, Babasaheb Ambedkar: Writings and Speeches, Vol. 8 (Govt of Maharashtra, Mumbai: 2014), p. 358.
8. M.K. Gandhi, The Law and the Lawyers (S.B. Kher, ed.) (Navjivan Trust, Ahmedabad: 2001), p. 119.
9. Ravish Kumar, The Free Voice (Speaking Tiger, New Delhi: 2018), p. 30.
10. B.R. Ambedkar, Ranade, Gandhi and Jinnah (Thacker and Co, Bombay: 1943), columbia.edu/itc/mealac/pritchett/00ambedkar/txt_ambedkar_ranade.html#01.
11. B.R. Ambedkar, What Congress and Gandhi Have Done to the Untouchables (Kalpaz, New Delhi: 2017), p. 244.
