That democratic protests can succeed in an illiberal democracy is a fond myth, a chimera, a mirage. In India, the legal powers vested in the state are so immense that any democratic protest can be made to fizzle out by a clever abuse of the laws.
The writing on the wall is clear.
Zack Beauchamp, global policy expert at Vox, has described the Hungarian Prime Minister Viktor Orbán as a strongman who has proved that a ruthless party could indeed take durable control of political institutions while still successfully maintaining a democratic veneer.
Roger Cohen, columnist for the New York Times, has pointed out that Orbán has established a template, “Neutralise an independent judiciary. Subjugate much of the media. Demonise migrants. Create loyal new elites through crony capitalism. Energise a national narrative of victimhood and heroism through the manipulation of historical memory. Claim the ‘people’s will’ overrides constitutional checks and balances.”
I do not wish to draw any comparisons by taking names but look around you, reflect upon the situation and you can decide for yourself.
Jason Stanley, in his How Fascism Works: The Politics of Us and Them, gives the label ‘fascism’ to ultra-nationalism of some variety (ethnic, religious, cultural, etc.), with the nation represented in the person of an authoritarian leader who speaks on its behalf. Their other strategies include propaganda for perception management; divisive politics of ‘us versus them’; dehumanising of certain segments of the population; anti-intellectualism (that is, attacking every intellectual activity that challenges their ideas); and law and order, with ‘them’ projected as lawless and ‘us’ as lawful.
On an emotional plane, they promote appeal to the great mythic past; ‘victimhood’ of the majority; sexual anxiety regarding protection of ‘our’ women from ‘them’; and a state of unreality, in which conspiracy theories and fake news replace reasoned debate.
Appears all too familiar, does it not? You do not really require genocide and ethnic cleansing for fascism to creep in and take hold.
The roots of the state garnering excessive powers
During the Constituent Assembly debates, Somnath Lahiri, the only communist member in the Constituent Assembly had famously stated, “There are certain rights, which we have been denied in the past by an alien and autocratic government. We want to incorporate every one of those rights which our people want to get…I am constrained to say that these are fundamental rights from a police constable’s point of view and not from the point of view of a free and fighting nation. Here, whatever right is given is taken away by a proviso.”
The right to democratic protest under Articles 19(1)(a) and (b) of the constitution has been enshrined in the eloquent words of several judicial pronouncements, starting from the case of Romesh Thappar vs The State of Madras (1950) until the recent Amit Sahni vs Commissioner of Police (2020), but its exercise is riddled with insurmountable difficulties.
The next Article 19(2) itself empowers the state to impose ‘reasonable restrictions’ on the exercise of this right. A dispute about whether the restrictions imposed are reasonable or not can be settled only by the courts and that, by itself, makes it impracticable.
How illiberal democracy can crush people’s movements
India has a battery of laws for preventive detention. In this unique example of ‘constitutional tyranny’, one could be arrested on the mere apprehension that he could commit some act prejudicial to the state. The British, of course, relished it. They started with the Bengal State Prisoners Regulation, III of 1818 and sailed through the Defence of India Act 1915 and 1939.
Not to be left behind, independent India started with the Preventive Detention Act, 1950. Almost immediately thereafter, a political leader of the stature of A. K. Gopalan was arrested under this and quite amusingly, the Supreme Court upheld its constitutional validity in the case of A. K. Gopalan vs The State of Madras (1950)!
Emboldened by it, various governments went on to enact the Maintenance of Internal Security Act (MISA), 1971; Foreign Exchange Conservation and Prevention of Smuggling Activities (COFEPOSA), 1974; National Security Act (NSA), 1980; Terrorist and Disruptive Activities (Prevention) Act (TADA), 1985; and Prevention of Terrorist Activities Act (POTA), 2002 besides numerous states’ Goonda Acts, and so on.
These days when people lament that getting bail under the Unlawful Activities (Prevention) Act, 1967 is so very difficult, they forget that its most draconian section 43D(5), was introduced by an amendment in 2008 by the then UPA government—albeit in a knee-jerk reaction to the 26/11 attack in Mumbai. Thus, no one can claim to be holier than thou.
Then, it is the prerogative of the police under the Police Act, 1861 and various judgments of the Supreme Court to ‘regulate a procession’, decide the place of protest and the manner in which a dharna may be held. The police could very well ask the protest to be held at a place where its very purpose is defeated. Sometimes others would do for police what it could not do by itself, as it happened in the case of protests at Jantar Mantar.
If the protests are held anyway (or disrupted using agents provocateur in some False Flag Operation), the protesters are likely to be prosecuted under a veritable battery of charges for rioting, disturbing communal harmony and damage to public property, etc. It could easily haunt them for years and spoil their careers and businesses – a frightening prospect for anyone who has not given up all aspirations in life.
When nothing works, the state has legal powers to use lethal force on the people under Section 129 of the Criminal Procedure Code, killing as many people as it would deem necessary.
Even for the Jallianwala Bagh massacre, the Hunter Committee, which had three eminent Indian members also in it, held Reginald Dyer guilty of grave error of judgment alone and he could not be prosecuted for a crime. All that he suffered was that he was made to resign!
Continuing the same obnoxious tradition, there is hardly any instance in independent India when a police officer was prosecuted for excessive or wrongful use of lethal force.
The German scholar Goethe had summed up the course of all institutions in one immortal line in his tragic play Faust, “To nonsense reason turns, and benefit to worry.” French diplomat and litterateur Chateaubriand expressed the same sentiments, “Every institution goes through three stages: utility, privilege, and abuse.”
This is exactly what happened to India. We gave ourselves a Constitution and institutions that, in theory, served the ends of utility by raising this nation to a high moral pedestal with its lofty ideals. However, the way we manipulated and practiced electoral democracy, granted immense powers to the state and thus to the ruling dispensations; and converted them to a privilege. With time, abuse of almost all institutions became the new normal.
There is no reason to believe that those who gave us one of the most elaborate and complicated constitutions in the world, could not have rewritten the colonial era criminal major Acts to make them more responsive to the aspirations of an independent nation. Since it was not done, it means that they actually wanted the unlimited powers of the state to continue.
The gradual death of democracy
Democracies do not die necessarily by guns of coups d’état or in bloody street riots; they die when the institutions of democracy are quietly subverted by elected leaders.
As Steven Levitsky and Daniel Ziblatt note in their How Democracies Die, this may be less dramatic but equally destructive; it erodes democracies slowly, in barely visible steps so that generally, no alarms go off in the collective consciousness.
Democracies die when rivals are treated as enemies; when the media is intimidated or bought; when the state assumes greater and greater legal powers; and when the legal powers are abused with abandon.
As Levitsky et al say, the electoral road to breakdown is dangerously deceptive, “Elected autocrats maintain a veneer of democracy while eviscerating its substance.” Any failure of the regime can be wrapped in the flag and it becomes inviolable.
Those who denounce government abuse or criticise its failures are dismissed as exaggerating or crying wolf. In India, the entire troll army of bhakts pounces upon the librandus (as they like to call the liberals) with rape and death threats.
Repression is the real ‘Deep State’ of India
We are now in a situation where constitutional values are being violated in the name of upholding the law. By using law as a weapon, this nation is now shooting from the cloak of law to murder justice.
As Mohan Gopal notes, “One of the oldest, most pernicious and widespread forms of abuse of state power in India involves the police and enforcement agencies selectively targeting political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison them.”
The state has become like the Komodo dragon. It bites the prey and waits patiently for the wound to be poisoned. Then, it eats the prey. Anyone who annoys the state becomes a prey. Malicious prosecution is the bite of the dragon, and conviction is the prey’s death.
Since malicious prosecution is yet to be recognised as a substantive offence and the process of getting justice is so costly and cumbersome, justice is effectively placed beyond the reach of all but the rich. Gautam Bhatia has drawn our attention to the reality of the state of liberty for many in the country.
About the rampant abuse of laws about ‘hurting of sentiments’, Arghya Sengupta points out, “These laws do not exist in a vacuum; they take their cue from the Constitution…Even our founding fathers, having faced the full force of British repression, chose to create a state that privileged public order over fundamental freedoms. Contrary to what we would like to believe, repression is India’s ‘deep state’.”
Noted journalist and civil rights warrior Arfa Khanum Sherwani had tweeted in anguish, “They control the narrative. They have the machinery. They know how to crush people’s movements.”
Yes, unfortunately, illiberal democracies happen to be the past masters of the art of crushing movements. Anybody, who ever dreamt that democratic protests have any future, is guilty of naiveté. Disheartening though it may be, clever rulers will always win and the naive public will always lose.
Intolerance aside, dissent is treated with disdain
Besides being a democratic right, dissent signifies that one has not surrendered meekly to those who happen to be in position of power. In India, every protest is treated with utmost disdain, as if it were some odious disease. Protests are also hated because they question the authority, the supposedly infinite wisdom of some Supreme Leader, raised to the status of a demigod in the eyes of his Bhakts.
It is this inherent intolerance that makes them isolate and stigmatise all protests as anti-national, anti-people (by causing inconvenience to them), being instigated by a small section of privileged people with vested interests (such as rich farmers), or confined to a limited region or people.
Then they also fear a ‘Domino Effect’ in relenting to any demand. If they are seen to yield on say, the matter of the farm laws, they know it well that the Citizenship Amendment Act would be the next.
Our future is frightening
The Hollywood film The Post (2017) is about the disclosure of the Pentagon Papers by The Washington Post. Their attorney says, “If the government wins, The Washington Post will cease to exist.” The editor Ben Bradlee replies, “If we live in a world where the government can tell us what we can and cannot print, then The Washington Post has already ceased to exist…What will happen if we don’t publish? We will lose! The country will lose!”
We are staring into a similar abyss.
In the game of dice in the Mahabharata, Yudhishthir could have never won against Shakuni in a game of his choice, as per the rules devised by him, and played with the ‘charmed’ dices made by none other than him. So is the fate of democratic protests in an illiberal democracy.
Dr. N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. Views are personal. He tweets @NcAsthana.