When laws meant to be emancipatory become weapons of the regime: Teesta Setalvad

Towards a New Dawn May Our Country Awake

Rabi Ray Memorial Lecture 2022

Teesta Setalvad

November 26, 2022

A stalwart of socialism and parliamentary democracy, Rabi Ray contributed to the deepening of Indian democratic institutions at a gentler time where politics and values did have some intrinsic links and men (and women) empowered institutions to deliver. Under the mentorship of Ram Manohar Lohia, the Socialist Party and the All India Samajwadi Yuvak Sabha matured in practice and principle. His entire tenure as Parliamentarian in the 4^th Lok Sabha when he was elected in 1967 from the Puri Constituency in Orissa and then later as MP and Speaker in the 9^th and 10^th Lok Sabhas were memorable. India was finding its feet as a functioning democracy, proud in its political international association as a flagbearer for the Non-Aligned Movement (NAM).

Whether within Indian Parliament or with the People – through the Lok Shakti Abhiyan and even the Citizens Initiative for Peace, debate, dialogue, accountability in government and transparency were and are key to principled politics for Rabi Ray.

Wonder then what he would have to say in the India and World of 2022, with the stranglehold on Indian democracy we witness; where a Rule by Police Raids or Executive Fiat; where Terror and Fear of targeted reprisal by the executive, the Concentration of Brute Power, Political with the State, Economic Resources with Corporates combined with the steady decline of the Federal structure of our Constitution has not just led to an erasure or erosion of democratic values but where we, India  once a leader of the developing world, a proud democracy is today being dubbed “partly free” (Freedom House, 2021) and a “partially free electoral autocracy” (Varieties of Democracy (V-Dem) Institute, 2021.

In 2021 –and the situation a year later is worse not better –indices of freedom and democracy by three renowned global research institutions contained one common observation − that India’s democracy is backsliding, leading to a rapid and alarming deterioration of political and civil liberties.

[[The three institutions, which came to similar conclusions on India’s freedom and democracy record in 2020, are the Sweden-based Varieties of Democracy (V-Dem) Institute, the United States-based non-profit organisation Freedom House and the Intelligence Unit of The Economist magazine. Specifically categorising the Indian situation, the V-Dem Institute study said India had be- come an “electoral autocracy”, while Freedom House downgraded India from a “free democracy” to a “partially free democracy”. The Democracy Index published by The Economist Intelligence Unit termed India as a “flawed democracy”. ]]

All three studies emphasised the role of the present central government led by the Bharatiya Janata Party (BJP) government in causing this backsliding of democracy. The studies have pointed out that this regime is characterised by widespread attacks on human rights groups, intimidation of journalists and activists, and rampant assaults on minority communities, especially Muslims.

A key strategy that has been central to the erosion of democratic space, has been the weaponizing of the criminal justice system by the State, to harass and punish those who dare to protest against the anti-people and anti-Constitutional policies and actions of the Government

Not that attempts on arresting democratic assertions had not happened earlier. The present speaker was between 15-16 years of age when autocratic tendencies grew in the 1970s, we saw the historic rail strike and then the clamping down on democratic freedoms that began with attempts –also near successful –when the appointment of the Chief Justice of India (CJI) was interfered with and then Emergency declared, media houses attacked and mass arrests affected. The legendary Rabi Ray’s prominent presence in the democratic elected government that emerged when that Emergency was lifted and elections held is remembered.

The difference between then and now is the very premise and worldview on which this government at the centre rests and stands’ it’s open and unashamed allegiance to a ‘Hindu rashtra’, a theocratic state, its commitment to overthrow the Indian Constitution and its republican ideals –that of parity and non-discrimination; basically equally of citizenship. It’s there for all to see on the website of the RSS in the ‘Bunch of Thoughts’ of Golwalkar; it is only echoed in the inciteful pronouncements of those who hold power, having sworn an oath to the Indian Constitution. Not just in theory, India’s practical experience of living under a majoritarian regime over eight years has seen overt displays of discriminatory governance: typified in the widespread condonation of, and impunity towards hate crimes that have spiralled due to unprosecuted hate speech.

More simply put, we have in place a majority government in power, an overwhelming section of whose representatives, in government and in parliament –and in the state assemblies—have no use for the finer points of equality and non-discrimination, and the inherent rights enshrined in the Indian Constitution. Though fascism may not have completely gripped us, our institutions of democracy—and most critically—that pulse of democracy, the Indian people—are being tested and tested sorely to feel the extent of the resistance.  Though fascism may not have overthrown the Indian democratic state, fascists today hold powerful positions of power.

We have seen since 2014, seen a powerful government ‘elected’ with a clear majority, overriding roughshod parliamentary practice, debates, overstepping required checks and balances on institutions, passing laws or amending them without adequate deliberation, debate. Leading to the oft-used phrase, ‘undeclared Emergency.’ In place is a majoritarian government that has effected a unique Stranglehold on institutions established to ensure democratic governance. Specifically, Parliament, Election Commission, Media and the Judiciary.

Laws(s) has today become a persecutor for ‘chosen’ sections, those individuals and organisations marked as enemies of the Regime. Courts as independent adjudicators of fundamental freedoms and justice are not dependable guarantors.

 A country of over 1.25 billion people has a per capita spending of a mere Rs. 0.75 per annum on access to justice/legal aid (India Justice Report 2019). While this clampdown on democratic functioning is rampant –the manner in which dates to elections in states are or not declared by the ECI one small example – what has made Indian public discourse raw and tottering on the edge of violence and conflict is the spiral in hate speech by those women and men who occupy powerful positions ins society or state/government.

If we examine the past three years alone, that is the second term of this government since 2019 –and I will not go into the abrogation of Article 370 in Kashmir and the manner Indian Parliament (and the Indian Constitution) was held to ransom by an elected regime — these years have been marked by a particularly crude unconcern for the basics of democratic functioning which at its core must have space and recognition of powers vested in the elected opposition, numerically however large or small. Instead we see ill-concealed attempts to denigrate state governments and opposition parties in whatever manner and fashion possible. To ensure a fearful and pliant public space, aggressive and violent use of ‘police raj’ or state agencies against those in opposition has also been rampant.

Even before that, the first term had seen India’s informal economy and small business decimated by a crazed firman of overnight demonetization (note-bandhi) that crippled India’s vast millions economically while propaganda that this was a move against ‘black/unaccounted’ money’ was belied by the RBI’s own figures that recorded over 90 % of currency coming back into state exchequers. Attacks on worker’s rights to negotiate a more egalitarian existence and Adivasis and small farmers to re-claim lands too had begun in the first term itself: when the Land Acquisition central law (amended after a century of people’s mobilization and protest) was sought to be made devoid of the social audit and people’s accountability principle (within months of May 2014) a strong Opposition protest arrested this move: over the next few years however BJP-ruled governments in at least six states had ensured that the anti-small land holder amendments become a reality, however.

Our students, their scholarships and our Universities were also targets of government repression, curtailment of scholarships and propaganda. Even as the first ever public lynching of Mohammad Akhlaq in Dadri, Uttar Pradesh (UP) led to a national and international outrage. Lynchings did not stop however but voices of protests were tired out and numbed; Una 2016 in Gujarat and the public flogging of Muslims in Kheda nearing Ahmedabad in Gujarat in October 2022 – and the overall ‘national silence’ around this need some serious self-examination. Protests happened then and are happening now; with each protest, the repression takes newer and starker forms.

The rallying cry of the protests was ‘azaadi’. This word had already been turned into an assertive chant by the students of Jawaharlal Nehru University. No oppression was outside of its ambit:

Hum ladke lenge azaadi / We will fight for freedom

Nafrat-hinsa se azaadi / Freedom from hate and violence

Jatiwad se azaadi / Freedom from casteism

Manuvad se azaadi / Freedom from the Manusmriti

Poonjivad se azaadi / Freedom from capitalism

Modiraj se azaadi / Freedom from Modi’s rule

More brute assaults began post 2019, however.

The end of 2019 and the months before the ill-conceived and unilaterally imposed ‘lockdown’ by the central government saw widespread, vibrant democratic protests around the partisan amendments to the Citizenship Act of 1955. The streets of Delhi outside Jamia Milia witnessed defiant and creative graffiti and pprotestors sang the verses of Habib Jalib (Dastoor) and Faiz Ahmed Faiz (Hum Dekhenge) in Urdu, a language that combines, perhaps better than any other, irreverence and rebellion with mellifluousness. The Indian Constitution, dismantled bit by bit from within parliament, was reclaimed on the streets by the people, and particularly by those on the margins, the minorities.

The anti CAA-NRC-NPR protests were vibrant and uplifting, secular in intrinsic character even as the leadership was proudly Indian and Muslim.

The issue agitating the Muslim community was—and still is— the existential threat posed by the Citizenship Amendment Act (CAA), the proposed National Population Register (NPR) and the National Register of Citizens (NRC).36 Introduced on December 9, 2019, CAA-2019 with its unconstitutional amendments, was passed at midnight without due deliberation and debate. The government, however, was taken aback by the determined resistance it faced countrywide. Mumbai, which is normally slower to respond, saw a historic silent protest by over 30,000 people at the iconic August Kranti Maidan on December 19. Warned by the happenings around the enumeration of the National Register of Citizens (NRC) in Assam, few bought the facile, inconsistent, and contradictory defence put up by the home minister and prime minister. CAA-NPR-NRC were seen as the trishul (trident) of this Right-wing regime.

Even before the tragedy of the lockdown for the 63 crore Indian migrant workers –and Orissa has hundreds of thousands of pravasi kamgars too—could shock and stun all Indians, the brute clampdown, in Delhi by the police answerable to the central government led to a potent and ever typical combination of governance applied and used by this dispensation: aggressive hate speeches in public by senior political functionaries; impunity and non-prosecution of this hate by police and agencies;  the relative silence of the political, elected opposition to this targeting and then the targeted incarceration of the leadership of movements! Even today as we speak, over a dozen of these political prisoners, and others in cases like the Bhima Koregaon case, remain behind bars. A permanently amended anti (counter) terrorism law (unlike TADA or POTA earlier that were laws were for specific and limited periods of time) –the UAPA Unlawful Activities (Prevention) Amendment Act was first passed through in 2004 (!!) and thereafter amended in 2008 (when only the Communist Parties opposed amendments in Parliament) and again in 2019! Even without application of the dreaded UAPA, Police Raj is reality be it in the capital or states run by a majoritarian BJP and several others.

Marginalised from ‘mainstream’ ‘visible’ public and political discourse is the economic exclusion and denial of economic social and cultural rights of vast sections of Indians.

The Oxfam India Discrimination Report is a harsh story of extreme inequality told in numbers. In a nutshell, “ What is particularly worrying in India’s case is that economic inequality is being added to a society that is already fractured along the lines of caste, religion, region and gender. “ (Professor Himanshu, JNU)

While India is one of the fastest growing economies in the world, it is also one of the most unequal countries.

Inequality has been rising sharply for the last three decades. The richest have cornered a huge part of the wealth created through crony capitalism and inheritance.

They are getting richer at a much faster pace while the poor are still struggling to earn a minimum wage and access quality education and healthcare services, which continue to suffer from chronic under-investment.

These widening gaps and rising inequalities affect women and children the most.

Let’s look at the numbers

(OXFAM Report)

It is these political social and economic conditions that have thrown the most significant challenge to us all, Indians. People’s movements, social and cultural activists. We cannot afford, at whatever level of civic action we are involved in to Mobilise against Hate and Targeted Violence. Let us not forget that the end of 2021 and beginning of 2022 began with the evil spread in the name of hate-letting and calls for a genocide (Dharm Sansads). Last year and the beginning of this one saw the degrading spectacle of articulate and representative Muslim women –their “auctions” on social media. While we develop an understanding and mobilise and organize in the new circumstances generated by an autocratic majoritarian state, let our mobilization never let us forget to be real Allies of the Most Marginalised and Targeted, India’s Minorities. It is in this courageous allyship that we will be able to re-build the structures sought to be dismembered and torn so bitterly and brutally. Now is the time to re-build and re-cement all our movements into a vibrant grassroots movement to defend the rights and freedoms of all Indians, and uphold the Constitution!

In our small and determined way this is what Citizens for Justice and Peace (cjp.org.in) has been doing, is doing despite being the targeted focus of concerted attack. Apart from the work related to the Survivors of 2002 in Gujarat, work that saw for the first time some elements of substantive justice being done with perpetrators being punished, our work before that was engaged with the discussion and disseminating of Constitutional values within the classroom: celebrating India’s diversity and ensuring that the classroom and school spaces looked at history, identity and dialogue as intrinsic to learning (https://cjp.org.in/khoj/). Now we are working with grass-root teams in Assam on the ticklish question of Citizenship, aiding through para legal work, counselling and legal interventions thousands of hapless Indians, arbitrarily told ‘they are not Indian.’ (https://cjp.org.in/assam/) In Purvanchal we work with youth, anganwadi workers and lawyers against hate and building an understanding of diversity and dialogue. In Mumbai we are trying to re-vitalise Mohalla committees and our vision is that we build teams of Peace Workers and Footsoldiers of the Constitution in districts and states all over India. In this collective endeavour, I urge that each one of you join.
Post colonial rule in India has been a contradictory reality. On the one hand there was the growth of Public Sector Units (PSUs) for economic and social development, investments and advancements in domains of science, technology and innovation, industry, arts and literature and communication, abolition of Zamindari Act, development options and forms of government etc. But on the other hand from the early years of nation building, the people of Damodar Valley (West Bengal-Jharkhand),   Hirakund (Odisha) and Bhakra Nangal (Punjab) and of many resources rich areas were asked to sacrifice the rights over livelihood and lands for “nation-building”. Economic theoreticians termed this as part of the collateral damage, for building a powerful country and a strong economy. Many other colonial laws like the forest laws and institutions like the forest department thrived and still exist today. The Indian Forest Act of 1927 was not repealed, the CRPC and IPC and Indian Police Act were not divested of their unbridled powers to arrest, use “permissible force” while detaining and arrest, use confessions and even torture.

This colonial legacy of capturing resources and creating an imbalance of power with the state and not the Indian people, continued in the resource rich states paying for the ‘development and nation building’. The result of this unequal mode of governance resulted in the internal displacement of millions of the Indian people from these states, who eventually became part of the informal labour force.  Before the nation state could completely shed its colonial yoke, it surrendered to a neo- liberal one in the 1990s.

 The privatisation regime that has become the order of the day has its roots in the LPG (Liberalisation, Privatisation and Globalisation) era that started with the 1990s. The paradigm signaled a new phase of colonialism, neo-colonialism, led by the Bretton Wood institutions, powered by the GATT and WTO, made sure that weak Indian governments of the day were misled at the cost of immense previous efforts to ensure India was on the path towards a welfare state. It was people’s movements alone, forest workers and Adivasi movements, movements of the displaced, movements of agriculturists and struggles against the British Raj, patriarchy, feudalism, caste and class exploitation, hunger, land & forest alienation, that compelled the new political elite to adhere to an inclusive social contract over the first decades of Independence. But let us not forget that the Right to Information Act, the MNREGA law –guaranteeing in whatever flawed form, some social security for the rural labour force, the Forest Rights Act, 2006, the Land Acquisition amendments (LARR), the National Food Security Act only could come to be enacted in the decade of 2004-2014. Since then there has been a violent push back by the State Institutions themselves that earlier enacted them.

In the same year, 2019, in February an outrageous order of the Supreme Court allowing evictions of millions of Adivasis and forest dwellers was stayed by the same apex court within ten days when countrywide protests erupted. Efforts to cripple the ‘recognition of land and livelihood rights’ to India’s Adivasis and Forest Dwellers continue however through parallel laws enacted (like amendments made in 2015 and 2020 to the colonial, Mines and Minerals (Development and Regulation Act), 1957, the Compensatory Afforestation Fund Act, 2016, the National Waterways Act, 2016, the Environmental Impact Assessment Act, 2006 (EIA 2020) and now the Forest Conservation (Act) Rules of 2022. All these parallel and devious attempts by the State have

seriously thwarted attempts to re-claim lands and livelihood. The single impediment to implement the Scheduled Tribes & Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (popularly known as FRA 2006) is the failure of Indian Parliament and States to repeal the Indian Forest Act of 1927 that has weaponized the Forest department.

In the name of ‘Reforms’ of the early 1990s, the progressive social contract ensured by socio- political movements across India were fast fast-eroding.  From the protection of agriculture, labour, environment, traditional livelihoods, to safeguarding of natural resources, the opening up of the economy to ‘reforms’, fatally compromised many of the principles embedded within the provisions the Indian constitution.

Today, the very communities who had to make those sacrifices for building a new India, are being brutally forced  to surrender everything they hold dear – for mining, dams, industrial corridors and projects, real estate, thermal power projects, nuclear projects, highways and road infrastructure, ports – all that which will apparently make India a ‘superpower’.

This un-accountable and unsustainable greed of one-sided ‘Development’ has also led to rising economic disparity, social unrest, unemployment and human suffering. Unlike the previous era, where the narrative was for ‘nation-building’ and ‘for the people’ today, the sacrifice is for the sake of private profit at the cost of the country and its people. It is a blatant surrender by the government to big corporations and crony capitalism that profiteers even during a pandemic.

 Three decades into the neo-liberal agenda, today what we see is a communal, authoritarian, Brahmanical and patriarchal state that has comfortably blended into the neo-liberal framework to decimate any pro people, democratic, progressive model of development.

Students, workers, civil liberty activists, social movements, have been under constant attack and arrests. Through silencing anyone who questions the government plans through to push through its expropriation based development agenda.

What we need today is to draw inspiration from the intrepid Farmers Movements and Protests that through their prolonged struggle from November (even June) –2020-December 2021—recognised or admitted to the inherent internal contradictions of the protest movement (small farmers, women farmers, Dalit agricultural labour, Adivasis as farmers) and sought to strengthen their concerted protests of the regime through this renewed understanding.

Today, therefore our struggle, needs to be a renewed anti-neo-colonial struggle that would not just be a struggle for protection of livelihood and ecology but a struggle for liberation against hate, injustice, targeted violence and prejudice. Hence the need for natural resources based communities to unitedly fight against the loot of ‘jal, jungle, zameen’ by asserting their inalienable traditional rights over resources. This combined initiative must also constructively push for an effective implementation of progressive legislations like the FRA 2006, the Panchayats (Extension to Scheduled Areas) Act, 1996, the Right to Information Act, 2005 and the Right to Fair Compensation & Transparency in Land Acquisition, rehabilitation and Resettlement (Amendment) Bill, 2015 (LARR). This will provide a significant political base for diverse movements of natural resources-based working peoples. Such a movement will re-ignite Indians collectively towards a struggle for the implementation of the intrinsic values contained within the Indian Constitution, all embedded there because of the struggles of the masses of the Indian people.

Friends, for many of us the past few years have been hard and for some of us we have been special and vilified targets. I have found however deep and abiding friendships and allies in the months of ordeal and incarceration, where post cards and letters penned from every village and district of Bharat made me feel loved and remembered. These messages written by hand on postcards flew through the cages of the Sabarmati Mahila Jail and broke down my despair and loneliness into hope. Kasturba Gandhi too had been in the same jail and her soul comforted me.

These words from a friend that I received on a post card, I will share with you:

“Khoob khayal rakhna apna! Mayus bas pal bar hona, jyada nahin! Ayenge woh din jis din ke liye tum wahan ho.. Ham sab, saath-saath aur alag, 2 tumko yaad karte hai. Tum ‘taakat’ ho hamaree. Aasmaan, chidiya, mitti, phool aur Dhwayee..tumko pyaar de…” This and so many others not just brought tears to my eyes — which was cleansing — and sustained me…

Recently a friend and ally wrote an article on Neo Fascism world over wherein he quoted historian Lawrence Britt who had studied the fascist regimes of Hitler (Germany), Mussolini (Italy), Franco (Spain), Suharto (Indonesia), and Pinochet (Chile) and found they had 14 elements in common. Britt had called for identifying characteristics of fascism[1] which are:

1.    Powerful and Continuing Nationalism
2.    Disdain for the Recognition of Human Rights.
3.    Identification of Enemies/Scapegoats as a Unifying Cause
4.    Supremacy of the Military
5.    Rampant Sexism.
6.    Controlled Mass Media
7.    Obsession with National Security
8.    Religion and Government are Intertwined
9.    Protection of Corporate Power
10.    Suppression of Labour Power 
11.    Disdain for Intellectuals and the Arts
12.    Obsession with Crime and Punishment
13.    Rampant Cronyism and Corruption
14.    Fraudulent Elections

Our movements of civic action and mass mobilisation need to recognise these neo-fascist trends within India and world over and build allies across inter-sectionalities, movements for social economic political and land rights, to counter them.

Maybe then we will come up with a version of democracy that is de-centralised, where the local is not just global and national but the most valued and where people and their aspirations –with diversity of language, culture and religion—are central?

Towards that end, then we must doggedly head…

Teesta Setalvad

Secretary, Citizens for Justice and Peace (cjp.org.in)

Footnote:

I thank the Rabi Ray Memorial Committee for inviting me and urge that we work together, towards this dream that comes with a heavy cost that we may all be required to pay.