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Arvind Narrain's new book dissects authoritarianism

India’s Undeclared Emergency by Arvind Narrain analyses the present in light of the Emergency, India’s only brush with political authoritarianism

Indira Gandhi after her release from Tihar Jail in December 1978 (Hindustan Times)

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Arvind Narrain’s India’s Undeclared Emergency: Constitutionalism And The Politics Of Resistance is equal parts historical memoir and analysis of the present, and prescription for the future. Its basic thesis is that we are living, at present, in an authoritarian moment.

As the title suggests, any analysis of this moment must be done in the shadow of the previous occasion in independent India’s history that involved political authoritarianism: Indira Gandhi’s declaration of the Emergency (1975-77). The use of the word “undeclared” in the title suggests, however, that while in some ways the two authoritarian moments overlap, in other ways there exist important differences. And the second part of the book’s title indicates its forward-looking focus: a clear-headed analysis of what, precisely, is this “undeclared Emergency” is important in order to fashion a politics of resistance to it—a politics that, in Narrain’s view, must be articulated in the language of constitutionalism.

Narrain’s own engagement with constitutional law and politics in India over the last two decades makes him particularly well-placed to write a book of this kind. As one of the founders of the Bengaluru-based Alternative Law Forum—which combines legal research and advocacy focused on civil rights, labour rights and the rights of sexual minorities—his work on the core themes of this book has been both long-standing and wide-ranging. Narrain himself was involved in the decades-long—and ultimately successful— legal push to decriminalise same-sex relations in India, through a judicial reading down of Section 377 of the Indian Penal Code. It is this wealth of experience—both in and outside courts—that is deployed to good use in the composition and writing of India’s Undeclared Emergency.

The starting point of any discussion on political authoritarianism in India must necessarily be the one declared “internal Emergency” in our history, the one imposed by Indira Gandhi. Narrain’s first two chapters focus on that, and what made it possible. He takes us through the formal declaration of Emergency, the deployment of laws such as the Maintenance of Internal Security Act (Misa) to suspend civil rights and impose a regime of censorship and impunity, widespread state coercion involving forced sterilisation and demolition of homes, and the failure of the Supreme Court to provide a meaningful check on any of this.

Narrain points out, however, that the roots of the Emergency—at least in legal and constitutional terms—go much deeper, and are more enduring. In particular, one cannot think about the Emergency without also considering the “original sin” of the Indian Constitution: the specific authorisation of “preventive detention” through Article 22 (a provision that was fiercely but unsuccessfully opposed in the Constituent Assembly)— and its subsequent interpretation, in the early years of the republic, by the Supreme Court. The constitutional text—and the court’s narrow interpretation of it—is the terrain upon which emergencies—both declared and undeclared—can be constructed.

Here, Narrain’s arguments are in conversation with those of criminal legal scholars who have long argued that the regime of preventive detention is responsible for blurring the lines between the “normal” and the “state of exception” in Indian law, and turning the “exception” into the norm.

India’s Undeclared Emergency: By Arvind Narrain, Context/Westland, 340 pages,  <span class='webrupee'>₹</span>699.
India’s Undeclared Emergency: By Arvind Narrain, Context/Westland, 340 pages, 699.

If the present situation bears some similarities with the declared Emergency, Narrain also develops an argument that it is different in certain salient ways. One is that while in 1975 state repression required the declaration of an Emergency and the formal suspension of rights to accomplish it, much of that is now being accomplished through “ordinary” laws such as the Unlawful Activities (Prevention) Act, or Uapa.

Uapa’s stringent bail conditions and long trial periods allow the state to stifle political dissent by keeping those whom it deems inconvenient, incarcerated for years without trial (Narrain discusses at some length the plight of the activists imprisoned in the Bhima Koregaon case, the arrests made after the 2020 Delhi riots and after the abrogation, effectively, of Article 370 in Kashmir in 2019).

The deployment of Uapa is compounded by the activities of the National Investigation Agency (NIA), which acts at the behest of the Union government, and has very little legal oversight to ensure its independence.

As a lawyer, Narrain pays particular attention to the courts. By examining, in particular, the judiciary’s refusal to hear habeas corpus cases after the move on Article 370, its failure to take meaningful action on the months-long internet shut-down in Jammu and Kashmir, and continued problems around the Chief Justice’s untrammelled discretion in listing cases and deciding the composition of benches, Narrain argues that the Supreme Court has been found wanting in the performance of its “checking function” when it comes to executive impunity.

He draws parallels to legal analyses of the role of judiciaries in historical authoritarian regimes, noting the existence of a “dual State”—where, in one set of cases, courts continue to follow normal rules of procedure and evidence, while in other (primarily political) cases, they abandon those fundamentals altogether.

Narrain notes, however, that one particularly important distinction from Indira Gandhi’s Emergency lies in the fact that while there was no perceivable political driver of her authoritarian project (other than entrenching herself in power), the ideological basis of the present moment does lie in a very specific political conception of Hinduism (Hindutva).

This key distinction informs the book’s final chapter, where Narrain indicates a broad range of terrains and sites of resistance that must of necessity go beyond the electoral domain and the domain of law and litigation: a constitutionalism beyond Parliament and the courts. Sprinkling the chapter with comparative examples, Narrain ends on a note of optimism, acknowledging both the challenges that the present authoritarian moment presents us with as citizens as well as the possibilities for overcoming them.

India’s Undeclared Emergency, thus, is a timely and useful work for those seeking to understand our present situation, as well as those seeking a blueprint for how to respond to it.

Gautam Bhatia is a Delhi-based advocate and legal scholar

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