The crisis of civil liberties today, and the need for a quest based on human dignity.

At the very outset let me submit that it is a great honour that has been bestowed on me to speak about the damage being wreaked on the civil liberties of human beings all over the World, and about the need for organizations that fight for protection of civil liberties. To me, questions of law have always been about engagement with the more sublime of human emotions, thoughts and aspirations, notwithstanding the fact that as practitioners we have to necessarily wade through the muck of human social orders and social affairs. In as much as we address issues that touch upon the aspirations of our better selves, both as individuals and as members of the society, “talk” about law necessarily has to be viewed as constituting one of the more important enterprises of human action. Consequently, and necessarily, humility is also implicated.

The history of movement for protection of civil liberties in India is rather well known[1]. It is trite knowledge that Jawaharlal Nehru was the visionary who first formed the Indian Civil Liberties Union in 1936. However, this organization by and large became defunct prior to August 15, 1947. And it may also be reasonably be argued that to some degree, at least on paper, the project of civil liberties became subsumed under the project of Constitution making. In the period of 1946-mid fifties, incipient demands for Civil Liberties resurfaced, with both the Communists and proponents of Hindutva often being on the same platform, as the political party that tended to view all manner of state action as legitimate was Congress! There were some short lived civil society groups that were formed in this period, such as the Bengal Civil Liberties group, the Madras Civil Rights Union and the Bombay Civil Liberties Union. Servants of India Society, that had been founded by Gopal Krishna Gokhale, attempted to organize the movement on an all India basis, by conducting civil liberties conferences for short periods of time, under the aegis of All India Civil Liberties Council.  However, these did not last long, and it is widely acknowledged that this was because there was a belief that electoral democracy would result in a substantial improvement in the relationship between the State and the people, especially the poor. One persistent voice, all too eloquent and all too endowed with immense moral strength was the near lone furrow drawn by Ram Manohar Lohia.

The situation in respect of belief that the State would remain out of the clutches of the few and respond to the calling of the Constitutional democracy began to shake towards the end of 1960s. As the project of state led instantiation of widespread social justice (in all walks of life and as primordial core in all institutions of national life, as mandated by the Directive Principles of State Policy) began to stumble, or rather the hope of a rapid evolution of a more just society began to dim in the 1960s, the intensity of peoples struggles began to escalate. It was again in the late 1960’s and 1970s that civil society promoted organizations to protect civil liberties re-emerged. Many of them have rendered yeomen service over the last 5 decades or so. The celebrated names of course are Association for Protection of Democratic Rights (in 1972), followed by Andhra Pradesh Civil and Democratic Rights Association (in 1973) and Citizens for Democracy launched by Jay Prakash Narayan in 1974. The split of APCDRA led to the emergence of Andhra Pradesh Civil Liberties Committee (APCLC) in 1974 and Organisation for Protection of Democratic Rights (OPDR) in 1975. There were others too, that formed a few years later, a smorgasbord of alphabet conjugations, the prominent ones being of course PUCLDR of J.P Nayak, CPDR in Maharashtra, and in 1980 the PUCLDR split into PUCL and PUDR.

I often refer to people like Shri. K. Balagopal and Shri. K.G. Kannabiran with wistfulness in my voice, as people of such calibre and devotion to the project of civil liberties have become even rarer today. But as I said before, I am particularly alarmed by the turn towards authoritarianism all over the World. As neo-liberalism swept across the Globe, in the past 4 decades or so, it began to undermine the foundations of the belief that individuals have to be concerned with those who have been left behind, through historically perpetrated injustices and through the operation of the social and economic forces in the present iterations of beliefs that markets ought to be the sole determinants of what will constitute social progress. The consequences, and the ominous portents of far worse to come, seem to be obvious for those who are cognizant of history of evolution of rights of individuals and groups against the depredations of State power captured by and for the benefit of the few.

Well celebrated thinkers have been complaining about the trends in judiciary in stepping back from its obligations to fully protect the civil liberties of the citizens. The release of a wheel chair bound academic from prison just a few days ago, after being twice acquitted by the High Court of Bombay, and serving eleven long years in prison is, I am sure all too fresh, in our minds. Lest we forget, the role of judiciary at all levels in not seeing fit to grant bail to that academic for so many years only underscores how badly mangled the jurisprudence of civil liberties has become. Let us also not forget that even when the 90% disabled professor was afflicted by Covid our legal system deemed it fit to ensure that he was not released on what has come to be called a “medical bail”. How did we get here? What went wrong? How or why has the judiciary become all too reluctant, all over again, to fully bear its burden of being a check on the inherent tendency of the executive to over-reach and go beyond the limits of the law?

The root cause again lies in the economic philosophy that has come to dominate the mainstream discourse about what is right in terms of value goals for the individual, and hence for the society. Where greed is the primordial virtue, and the tenets of “I, me, and mine” are extolled as pinnacles of objectivist thought, it was inevitable that the role of law in pursuit of socio-economic justice would be attacked and undermined. Law, and hence the State, are to function as the “night watchman” maintaining law and order to protect private property, especially (if not solely) of the mighty and the vulgarly wealthy. The suffering of human beings left behind, in the capitalist race, were and are to be of no consequence. This has eliminated the very soul of political discourse and has had a chilling effect on the importance of legislatures as bodies of public deliberation, and indeed of public welfare and of common good. With the re-emergence of the imperial executive, policy becomes the exclusive prerogative of the dealings between the executive and the elites (the ones who succeed in cornering increasingly larger swaths of national wealth, and material resources). The structure of economic incentives, working themselves through the cold logic of transaction costs, implies that the elites seek to enthrone the imperial executive, and undermine the importance of the legislature as a check on the executive. Instead, the entire political discourse, or rather how it is structured and sieved through a media that is owned by the elites, is turned towards extolling the virtues of the imperial executive serving the interests of the few – and indeed deeming that the interests of the few is of primordial national interest.

As I have said before, on other platforms, the twinning of the fates of legislatures to their efficacy of serving as chambers for extolling the alleged virtues of the imperial executive, manufactured by a fawning media – financed and controlled by the big business – also implies that legislators are less lawmakers and more akin to cheerleaders, one tip of the leading edge of stormtroopers to attack any attempt at critiquing of law and policy instantiated at the behest of the elite. The main collective body for debate about collective interests – the legislatures – thereby ceases to be an effective check on how the executive exercises its discretionary power in wielding the vast collective powers vested by the people in the State.

What is also extremely disturbing is that even in social discourse, extremely violent and patently unlawful action by the police in eliminating those who are not even suspects, are being normalized and justified. We hear, from political and social leaders and talking heads in the media, a constant demand for instantaneous justice, and extreme impatience with the process of rendering of justice, the time required to do so, and the necessary constraints that one needs to put on the process to prevent the punishment of the innocent. The consequences are immediate: from the reliance on encounters to bulldozer justice, from use of various investigative agencies as tools of persuasion in the political theatre to raining of “fire” from the skies – we are beginning to witness them.

What is being lost is the understanding as to why law – and particularly constitutional principles – needs to restrain arbitrary action by the executive wing of government, and declare laws that violate civil liberties, within the ambit of fundamental rights, as unlawful. For once we grant sanction – in social and political discourses – to arbitrary action by the executive, and enactment of draconian laws by the legislature, we would also then make it inevitable that the executive wings of government will render their duties in a manner that does not take into account the rule of law, and extraneous factors such as convenience of the political class and/or the benefits of an oligarchic class become the actuators. Misuse of the collective force of the people vested in agents and agencies of the State necessarily follows.

It would of course be all too easy to give in to cynicism about prospects of democracy and promote or practice violence as a means to achieve some semblance of egalitarian order. History teaches us many lessons and one of the principal ones is that democracy as a means of political ordering increasingly entrenched itself on the back of demands of those left behind for more equitable share of the social product and also a concrete say in how the polity is governed. Walter Scheidel points out:

“For thousands of years, civilization did not lend itself to peaceful equalization. Across a wide range of societies and different levels of development…. Violent shocks were of paramount importance in disrupting the established order, in compressing the distribution of income and wealth, in narrowing the gap between the rich and the poor….. Four different kinds of violent ruptures have flattened inequality: mass mobilization warfare, transformative revolution, state failure and lethal pandemics….. sometimes acting individually and sometimes in concert with one another….. hundreds of millions perished in their wake….” [2]

An implied argument is often made, that maybe Marx was right and that only a violent upheaval by the masses could have been the answer for the kind of socio-economic inequality that India was confronted by at the time of independence. We of course have two sets of problems – about both the lack of theoretical completeness in the Marxist argument with regard to both the potential for revolution and also with regard to what follows, and whether the ensuing political order would be stable. Add to that was the extreme reluctance by Marxists to acknowledge the problem of caste. Theoretical lacunae were not the only reasons we rejected the path of violence implicit in Marxist-Leninist thought. It was also a moral stance, based on what history has taught us. History also teaches that violent struggles, when they emerge, do not provide a time line as to how long they will last. Nor do they specify who will emerge as the real winners and losers. Instead as Ted Honderich argues in “Violence for Equality”, such upheavals often lead to enthronement of at best a new class of elites, who may or may not be rapacious to begin with, but sooner or later turn predatory. And as Paulso Freire says, the cycle of dehumanization continues.

As we emerged from the rubble of two hundred years of plunder by our colonial masters – with active collaboration, and even underwriting by the native elites – the founding fathers visualized a democratic order that was to, not only build a platform of free and robust public discourse but also a just social order in which most, if not all, citizens are provided opportunities to self actualize and capacities to repulse and organize themselves against “epistemic injustices” in the context of policy formulation, enactment of laws and their implementation.  Further, it was also recognized that if we are to forestall violent upheavals caused by inequality, then the State – as a forum for collective action – was to be informed by certain principles that were fundamental to state action: prevention of maldistribution of resources in a manner that is inimical to the welfare of all and prevent forces that limit the capacities of citizens to be fully empowered participants in public deliberation.

India chose a model that it hoped would lead to evolutionary, rather than revolutionary, socio-economic transformation. Babasaheb of course refused to have any truck with a naïve belief in elites being trustees for and on behalf of the socio-economically deprived, nor did he, as a champion of the rights of the most downtrodden in this society, believe in the “trickle down” theories of laissez faire free market proponents. Consequently, the Directive Principles of State Policy – though not justiciable – were to be the mandatory foundations of policy making and State action to instantiate social justice in all walks of life. This was a compact drawn up to avoid the bloodshed of revolutions and also be a constant reminder as to the true goals of the nation. This compact, most people would agree, is substantially in tatters well prior to reaching the substantive goals of social justice that we set for ourselves. That we have again begun to glorify the wealth of the few – as any one who has been bombarded by certain wedding festivities would attest – is also evidenced by how strident the critique is of anyone who dares to question the extreme form of concentration of wealth in the country. And along with such concentrated wealth, come the retinues of political torchbearers, law makers and law keepers.

In the Constituent Assembly debates, Babasaheb at one point addressed the question of whether India could ever be a genune social democracy. To this his reply was that India’s heritage of philosophical insight also included two core approaches of the mind towards each other from the Upanishads: “Aham Brahmasmi” and “Tatvam Assi”. Whether one takes this in the spiritual sense or in a larger secular philosophical sense, that ancient thought encapsulates a significant aspect of modern human rights discourse: the essential and indefeasible dignity of every human being. While much of the discussion regarding the concept of human dignity as foundation of human rights revolves around the implications for the State, not enough attention is paid to another aspect: that protection of this indefeasible core of dignity of every human being is also the responsibility of individuals. Consequently, defense of human rights was not to be predicated merely on a utilitarian calculus that non protection of others human rights might ultimately lead to loss of ones own rights, but the loss of rights of others themselves constitute a loss of our rights to co-exist as human being endowed with an indefeasible core of dignity.

It is here we have to restart our campaign to re-establish civil liberties and human rights as of primordial concern for all citizens. The campaign has to start with the inculcation of proper values, that ones existence is not to be defined in terms of what one grabs to consume but in terms of co-lived reality and of shared co-sentience. One of the first discourses in the extant text available of the ancient Indian philosophy – Samkhya – is about the message of Lord Vishnu regarding the purpose of a sentient being: of eradicating three sources of suffering amongst fellow sentient beings – suffering that arises from denial of minimal material resources to grow and develop, the suffering that arises from ignorance and finally suffering that arises from ignorance of the spiritual dimension in which we recognize the essential unity of all. Babasaheb, by quoting from the Upanishads, sought to remind the makers of the Constitution of those great quests.

The organisers of this meeting have asked me to speak about issues of civil liberties that emerge in the context of various draconian laws enacted by the Indian Parliament from time to time. I have on this occasion avoided speaking directly on those specific aspects. The first reason is that I have previously spoken on similar themes previously. The second reason is that there are other eminent speakers here who would also shed light on the same matters and also add their valuable perspectives on the said topics. Furthermore, I wanted to explore more foundational pathologies of the political economy – and the draconian laws and the manner in which they are implemented in violation of Articles 14, 19 and 21 of our Constitution I submit are manifestations of the deeper pathologies. Moreover, I also wanted to point out that the struggles for civil liberties cannot be confined to the institutional context but has to be engaged in the social contexts and the context of ideas and mind space. With regard to the draconian laws, without going into the debate about whether they are per se unconstitutional or not, I would specify that I have my own doubts as to their compatibility, especially in light of the extent of abuse we have witnessed, with the value matrix of the Constitution.

With these few words I take leave, and again thank you all for providing me with this opportunity to engage in “law talk” with all of you.
Jai Hind

[1] For a comprehensive article, see Bhattacharya, Snigdhendu “Fifty Years of APDR: How the Civil Liberties Movement Took Shape in India”, in “The Wire” 06/July/2021. https://thewire.in/rights/fifty-years-of-apdr-how-the-civil-liberties-movement-took-shape-in-india

[2] Scheidel, Walter – “Violence and the History of Inequality from the Stone Age to the Twenty First Century”.