Earlier than we perceive the function of civil society in current day India, we should perceive India at its founding motion. The submit Impartial State in India has been the creation of the extended battle towards colonial rule. Its basis was within the ideas of liberal democracy with an agenda of social change. The Indian Structure is as a lot a end result of the concepts of the liberty motion towards colonial powers as it’s of the achievement of a social revolution via legislation. Our Structure, which was impressed by the Common Declaration of Human Rights, thus, not solely supplied for political freedom from overseas rule and established a democratic republic, however it additionally supplied a highway map to undo the deeply entrenched hierarchies, inequalities, and social exclusions in our society and subsequently for a social transformation. A lot of the civil society interventions of the final seven many years have been to work for redeeming the promise of the structure inside and outdoors courts.
The Wrestle “on the opposite aspect of independence”
India’s Structure is exclusive as no different Structure on this planet tried this magnitude of social change via constitutional means. It was a direct reply to the calls for of girls, minorities, Dalits and Adivasis, and different marginalized teams to their calls for for equality earlier than the legislation and equal safety of the legal guidelines. Reservations in public employment for Scheduled Castes (SCs) and Scheduled Tribes (STs) turned a Basic Proper on the fundamental premise that marginalized communities have been required to be represented in establishments of state energy. It was additionally a constitutional mechanism to finish the oligarchy of Brahminism and its hierarchical philosophy in all organs of state. Drafted because it was on the time of a bloody partition of the nation into two nations, Pakistan and India, India selected to stay a secular nation and refused pleasure to be theocratic. It’s the Structure which has been our biggest power of remaining collectively as a united nation with so many various linguistic and non secular communities residing in concord.
All of India’s authorized activism by civil society, together with its judicial activism, has been a battle to implement our social and financial rights. It’s on this “different aspect of independence” that a lot of civil societies’ struggles have been positioned during the last 70 years. The rights got by the Structure; the battle has been to get them carried out.
Although the Structure of India is little question the result of a political battle, it’s primarily a authorized doc which suggests it enforces accountability via legislation of all organs of State. This meant that the facility of judicial assessment may very well be successfully used within the service of the individuals.
Our political historical past does point out that the legitimacy of protest by civil society, which itself was the legacy of non-violent battle and civil disobedience inherited from the independence motion, was dropped at a brutal and abrupt finish when the Emergency was declared in June 1975. It made us understand the signification of our civil and political rights. Nonetheless, our rights have been restored when, via an electoral course of, Mrs. Indira Gandhi, the incumbent PM who declared the Emergency, was voted out of energy. Neither the protesters, nor the ruling celebration questioned the sanctity of liberal democracy because the governing norm of the nation. The battle towards the Emergency was to restore our civil and political rights. After the Emergency was withdrawn, the Structure was amended to make sure that the fitting to life, which was assured by the Structure, couldn’t be taken away even throughout an Emergency. Each Mrs. Indira Gandhi, who was instrumental in imposing the Emergency, and Jayprakash Narayan, who led the battle to revoke the Emergency, accused one another of being “dictators” and “fascists”—that means thereby they noticed the opposite deviating from the trail of liberal democratic ideas on which the Structure and Indian polity was based. Each of them claimed allegiance to it. Talking of the occasions which led to the imposition of the Emergency, particularly the protests led by Jayprakash Narayan and the scholars’ actions, Bipan Chandra factors out in his ebook “Within the Identify of Democracy”:
“The protection of Indian democracy appears to have been the principle justification for each the JP Motion and the Emergency Regime.”
From Liberalism to Cultural Nationalism
It’s this that has modified in 2014. The political philosophy of liberalism has been changed by that of “cultural nationalism”, tradition being seen as emanating from the faith of the Hindus, who type the vast majority of the inhabitants of the nation. In his ebook Modi’s India, political scientist Christophe Jaffrelot writes,
“The promotion of Hindu nationalism on the expense of secularism took the type of assaults towards liberals (together with NGOs, intellectuals, and universities like JNU) and the Saffronization of schooling. On the identical time, minorities have been subjected to each bodily and symbolic violence by Hindu vigilante teams, which exerted a brand new type of cultural policing. These teams, often underneath the umbrella of the Sangh Parivar, began to type a parallel state—with the tacit approval of the official state—as they launched one marketing campaign after one other, comparable to their struggle towards love jihad and land jihad, their makes an attempt at reconverting these whose forefathers had embraced Islam or Christianity, and their assaults towards individuals accused of slaughtering cows—a really emotional problem that was the foundation reason behind a sequence of lynchings. Vigilantes have been energetic not solely on the street but additionally on-line, as evident from the psychological violence exerted by trolls—once more with the blessings of the nation’s rulers.”
India is offered as a nation engaged in an anticolonial motion, which started in 2014. This ahistorical view is being propounded by a Hindu Nationalist celebration which got here to energy in 2014 with the purpose of creating a Hindu Nation. Liberalism as a political philosophy is being rejected. Secularism, as we all know it, is sought to get replaced by a theocracy. All this has grave implications for these of us who imagine that democracy, secularism and federalism are fundamental options of the Structure as held by the Supreme Courtroom in numerous judgments, together with S.R. Bomai v. Union of India, Keshavananda Bharti v. State of Kerala and others.
The proof of the rejection of the liberal secular ideas of the Structure is to be discovered within the public apply of the heads of State. In 2023, when a brand new constructing was inaugurated for our Parliament, a Sengol (image of kingship) was put in by Hindu clergymen within the presence of the Prime Minister. Extra just lately, on 22nd January 2024, a Hindu temple devoted to Lord Ram was consecrated by the Prime Minister in full view of the residents of the nation, establishing firmly, the transformation of a constitutional democracy right into a theocracy, underneath the garb of revitalizing a supposed civilizational glory. Legal guidelines have been launched in 2019 which allow the grant of fast-track citizenship to Hindu unlawful immigrants whereas denying it to Muslims. Consuming beef has been criminalized by banning the slaughter of cows. Interfaith marriages are policed to be able to forestall Hindu girls from marrying Muslim males. Hindu Vigilantism stalks the streets to implement a mobocracy.
What has this meant for civil society activism? A majoritarian society can not tolerate any type of dissent, it wants obedience to take care of its authority. Therefore, the primary assaults have been on civil society and on organized teams such because the farmers who peacefully protest with their calls for. As a toddler of the liberty motion, all via the Seventies until the regime change of 2014, I took my civil and political rights as a right. I assumed they might by no means be taken away from us. We had a Structure which assured these rights to us and as a lawyer, I believed my primary process was to battle for social and financial rights of the marginalized as we have been nonetheless a rustic outlined by poverty and undeserved need. The Structure promised to the marginalized a lifetime of equality. The work was thrilling, and the Structure proved very helpful for our fights towards bonded labor, wage staff, pavement dwellers and hawkers. It was a lot later in life, within the post-2014 state, when a Hindu right-wing political celebration got here to energy that I noticed that our political and civil rights are a precondition to the conclusion of our social and financial rights. The rights are actually endangered.
Criminalizing advocacy
Following a sequence of circumstances argued in a courtroom of legislation, which we had argued towards leaders of the political celebration in energy, in 2019, I discovered myself, a sufferer of the prison justice system with a case registered towards the group we had based, the Attorneys Collective. We have been persecuted for ostensible violations of the International Contributions Regulation Act 1986, a statute that was enacted by a Congress regime to forestall the interference of the “overseas hand” in India’s political system. The group itself had labored on problems with home violence and prevention of discrimination towards individuals residing with HIV, for which we had funding from worldwide funding companies. We have been accused of not preserving accounts. We have been advised that problems with home violence and HIV had nothing to do with the objects of our group, no matter the truth that its objects included the protection of the Structure of India. Advocacy in any type for rights was criminalized. This has occurred to many organizations in India, together with Amnesty India, the Middle for Coverage Analysis, a suppose tank, and the Middle for Fairness Research based by Activist Harsh Mander and others. It was then that I as soon as once more realized the facility of the legislation of which all ruling events are afraid.
However there’s a contradiction right here. Each legislation can be utilized as meant to guard human rights and each legislation will be weaponized with mala fide intent in its implementation since implementation is within the arms of the politician in energy with no checks and balances or independently fact-checked to determine whether or not or not a prosecutable case is made out. Therefore, what we’re seeing in India right this moment is the prosecution and incarceration of anybody who speaks up towards the established. The appropriate to freedom of speech and expression, the fitting to life and private liberty have been decreased to a rope of sand for any one who spoke up towards the ruling institution. There have been circumstances on lecturers and Dalit activists within the Bhima Koreagon circumstances, journalists like Siddique Kappan, and pupil activists like Umar Khalid and Shrajeel Immam.
Civil society was seen because the precise political opposition exterior parliament. However a time got here when not simply civil society however political leaders have been accused of “cash laundering” and put behind bars, all this to make sure that someday we have now a single-party state by the elimination of the most important political celebration in opposition, the Indian Nationwide Congress.
Civil Societies’ primary contribution has been to insist on the enforcement of rights conferred by the Structure. It’s social activists who’ve stored the values of the Structure—Liberty Equality, Fraternity, and Dignity—alive and refused to succumb to the calls for of a Hindu fundamentalist state. It has been an indicator of their activism that they protest with a replica of the Structure of India of their arms, as if to guard it from majoritarian assault.
In retaliation the Indian state has labeled all protest actions as “anti-national” and conspiracies to destabilize the Indian State. Because of this, the draconian Illegal Actions (Prevention) Act, 1967, which is an anti-terror statute, has been used to place residents behind bars to silence their voices.
“Tradition” vs Constitutionalism
There may be, in truth, basically, a breach of the Rule of Legislation and it has fallen on the shoulders of civil society to battle for the return of the Rule of Legislation. Hindutva is the political manifestation of Hinduism the place Hinduism is justified as a “lifestyle”, not a faith. These are calls for for cultural nationalism to the exclusion of Constitutionalism as we all know it.
A mixture of those developments has resulted in a scenario wherein allegiance to “tradition” overrides allegiance to the Structure, i.e., the touchstone by which the validity of State motion is judged. Our courts have paid homage to this type of cultural nationalism denying us the one avenue of recourse towards majoritarian rule that the Structure gives, together with judgements which have upheld a ban on hijab, taking away the Particular Standing of Kashmir and so forth. Article 13 of the Structure explicitly says that each one legal guidelines inconsistent with basic rights will likely be void. Articles 226 and 32 present direct entry to the Excessive Courtroom and the Supreme Courtroom and but we discover that our courts have chosen to just about surrender on their energy of judicial assessment and endorse each choice of the federal government. Since 2014, there have been solely two main circumstances the place the Courtroom has determined towards the Authorities: the judgement on the Nationwide Judicial Appointments Fee, which in impact preserved the facility of the Supreme Courtroom to nominate judges, and the Electoral Bonds case, which got here too late after cash had been collected and spent for electoral functions. It appears virtually as if the Courts have repudiated the Structure of India and in synergy with the present State coverage arrange a cultural norm above the Structure because the governing norm of society, within the Marriage Equality case. We’re at risk to shedding a Rule of Legislation society, with which we began our journey over 75 years in the past.
Defending the structure
It’s in these circumstances that it has fallen on the shoulders of civil society to defend the Structure via protest actions. In a number of protest actions, civil society has gone again to its Gandhian custom of nonviolent protest and civil disobedience. What we see in India is the dramatic function reversal. Whereas it’s the constitutional responsibility of elected representatives to bear true religion and allegiance to the Structure of India, they ignore the Structure. As an alternative, civil society steps in to defend the Structure.
It’s value recalling what Mahatma Gandhi had stated if the rulers are doing fallacious. He stated:
“If our rulers are doing, what, in your opinion, is fallacious, and if we really feel it our responsibility to allow them to hear our voice although it might be thought of seditious, I urge upon you to talk sedition—however at your peril. You have to be ready to undergo the implications.”
We ask the query as to what the function of protests in a democratic society is. Our pre-independence historical past reveals that it was nonviolent protest and civil disobedience that finally led to the tip of colonialism and to independence.
Whereas no legislation can forestall protests towards insurance policies of the federal government, we are actually advised that to protest towards unjust legal guidelines is to assault the sovereignty and integrity of the nation. The tragedy of India is, that the state has equated official protest with being a “terrorist”. If Mahatma Gandhi was alive right this moment, he would have joined the protest, for it was he who stated in Younger India, on 29 January 1925
“Actual Swaraj [self-governance] will come not by acquisition of authority by few, however by the acquisition of the capability by all to withstand authority when it’s abused. In different phrases, Swaraj is to be obtained by educating the plenty to a way of their capability to control and management authority.”
