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Mainstream, VOL LIX No 28, New Delhi, June 26, 2021

Transformation of the Indian State: Recent Trends and Impact on the Civil Rights | Mondal & Jana

Friday 25 June 2021

by Mohiuddin Mondal and Abhijit Jana *

Introduction

India emerged from the ashes of partition and prolong exploitation as a pulverized nation with much uncertainly but with a brilliant inclusive vision in sync with its pluralist culture . That was the social capital which Independent India epitomised .However more we have moved on since 1950s, we encountered more difficulties coming on our way and introspection reveals that more than external challenge, we ought to have been more inword-looking for our society lacked equality and faternity to create a composite whole, and the state instead of making a bridge-building tried to politicse the faultlines of society that sometimes transpired in the form of continued caste injustice or the Frankenstein of communal riot. The language policy was either to favour the traditional elites or to sharpen the cultural lag. Our federal dynamics was either to ensconce the centre over the state on such lame excuses what we disgustingly witness in late 1950s in dismissing the Namboodiripad government or to arbitrarily to empower the governor to topple the elected state government. The stories are a long train of which the recent trajectory is but another attempt to sabotage and mute the power of the vocal civil society or to coopt it although activists like Nayantara Sehgal refused to accept and returned honour previously bestowed by the state. As such the trend is alarming on which we would like to reflect with theoretical means drawn from western philosophical thought of liberal democratic genre. We believe that it is Rousseau’s premise of General Will that serves the basis of modern states legitimate authority.

Part I

However, the state did not take this responsibility voluntarily, rather the people of increasingly expanded civil society have shown obligation to the value that the rights of the people should be protected which engendered a new development discourse and democratic practices. At the heart of it lies the talk of inclusion which the politics of modern state may not pay heed to. The state in the West was always absolutist and that is the precursor of the modern state. However, the liberal theory of the state that developed alongside has always stressed the individual, his/her freedom, and their ‘consent’ in laying the foundation of the modern state. Although we can refer to Tocqueville, Paine, and others, yet basically the credit goes to famous English philosopher John Locke who offers the most convincing and insightful explanation of political obligation in his 1689 “Two Treatises of Government” that there are three main reasons why people were guided by the need for a state as a well-organized institution rather than a natural system. These are:

1) there was no clear principle or unity in the natural law that men would follow in the natural state.

2) Men realised that if there was any kind of conflict between them, there was a need for an agency to resolve it.

3) Lack of appropriate authority to distribute and protect human rights in various fields.
Originally for these reasons Locke realised the necessity of state creation that presupposed the agreement with the people leaving aside the three treaties to themselves. They are:

1 ) Right to life.

2) The right to freedom of speech and expression.

3 ) Property rights.

Thus, Lockean ground almost conflates the theory of compulsion and theory of voluntary contract which keeps alive one very critical issue that although the people have handed over all their power to the state yet one thing they have left to themselves; that is their right to resist the state which makes political obligation “both conditional and again unconditional” (Studies in Political Obligation, S. K. Mukherjee, p58). It thus creates a contradiction. On one hand, the state is to be obeyed and its stability is to be maintained by the people with their consent. But what would happen if there is a conflict between the obligation to the state and its activities that evoke injustice. It is a difficult but very pertinent question because the state in the form of a super coercive political minority can always abuse its power derived from society.

The need for such an explanation lies in the fact that in the present democratic system, the greatest consideration is the consent of the people. The existence of the state and its stability are contingent on consent. The people are still steadfast to their responsibilities as a condition of the agreement. But it is also important to review as to how diligent or capable is the state in fulfilling the terms of its promise or agreement? It is precisely because the people have the weapon of consent in their hands that they repeatedly exercise to resist the state in cases of gross deviations albeit as a check and balance. That means in practice, the people have never withdrawn their consent, hence the state also cannot deny the basic premise and understanding of such agreement.

Part II

Recently, several Indian citizens were arrested by the Central government agencies for questioning the corona vaccine. It is important to remember that asking questions is an integral part of a person’s so-called consent. The practice of different types of rights and their proliferation occur in course of the evolution of society, in response to new demands and also through judicial intervention and social movements. Today the right to health is a very important fundamental right like the right to minimum nutrition, the right to education etc. All these are part and parcel of the basic human right to development and human dignity. It may be noted that the apex court of India in its landmark judgment in Paschim Banga Khet Mazdoor Samity & others in 1996 held that in a welfare state the primary duty of the Government is to secure the welfare of the people and moreover it is the obligation of the government to provide adequate medical facilities for its people. The right to life was one of the hallmarks of the people’s acceptance of the social contract doctrine advocated by John Locke. Needless to say that this right to life implies and includes the right to health. If the state cannot protect that right, the people have the right to resist because laws emanate from consent, not an arbitrary operation of the state or its denial of basic rights.

It is a Federalist state structure in the analysis of the nature of the Indian state, which was acknowledged at the beginning of the descriptive presentation of the Indian Constitution. However, Morris-Jones did not consider the Indian state structure as a “semi-federalist” state. However, with the democratic decentralization of the Indian state character, the backbone of the liberal system was partially inspired by the ideology of Nehruvian socialism. That is to say, the state structure of good brotherhood is of a mixed character. In this respect, the main duty of the state is to protect civil rights.

In 1842-43, Karl Heinrich Marx wrote in the famous newspaper the Neue Rheinische Zeitung that "true human liberation reveals the legitimacy of the state, therefore signifies the greatest progress of society in the existence of the state." In the same year, he wrote, "Legal, moral, and political freedom develop through the great instrument of the state, and by obeying state law, the citizens of the state actually obey their own natural law and the rational law of man." So it is clear from Marx’s thought that the state fails to make any decision without the citizen, and if the state remains steadfast in its duty, then the state does not recognize civil rights at all. The present characteristic of the Indian state is certainly rich in liberal ideology. In the last decade of the twentieth century, Prime Minister Narashima Rao’s government pursued the path of keeping pace with the world economy, though not as liberally as in the West. In fact, when the state makes this decision, the individual is included in the system as part of the state structure. Therefore, just as the benefits of that system claim the credit of the state, so the evil rests on the state. The people elect representatives to form and run the state, but their views are ignored in the formulation of public policy. That is why all the decisions to protect the rights of the individual are mortgaged to the state. This is not done by the individual, the state has cleverly kept it in its hands to maintain its authority. So the question is what is the identity of individual citizens in this mixed state system?

Rousseau’s theoretical form of "general will" in his social contract doctrine now seems to have become the "state will". The power of this "State Will" means that the state is adamant in its decision to serve its own interests against the will of the people, and its compensation is always to be paid to the people within the state structure. In this case, the state has to decide exactly how completely socialist is its character? Or is it completely liberal? Or is the state completely for the welfare of the people? The state can never go its own way with human rights. The state must run according to the will of the citizens. J. S. Mill in his famous book "On Liberty" said that state control over individual liberty is not worthy of support. The individual is independent and sovereign over his own body and mind. At the same time, Mill refers to human behavior as "self regarding" and "other-regarding", while acknowledging state control over other matters. If the proponent of liberal thought like Mill is the character of the current state, then my right to health is later in my "Self regarding" which does not deserve state intervention. The "other-regarding" power is that the state should, as soon as possible, protect the “self-regarding” by providing the necessary life-saving medicines and vaccines to the citizens under its control at the appropriate time. It would have protected the rights of the individual as it would not have seen so many deaths, On the other hand, there is no question about the moral duty of the state. Remember, one of the structures of state formation is its citizens.

In the present context, the great decline of our democracy is in the question of its civil protection. For this reason, the tendency to impose ultra-nationalism on the state-directed people is intensifying. David Held, in his book Model of Democracy (1987) through Participatory Democracy, shows that greater citizen participation and the growth of the private-public sphere are prerequisites for the success of liberal democracy. But the Indian state is now determined to embrace the love of nationalism at any cost. This nationalism is the division of “us-yours”. The state wants to put democracy at the forefront and spread the long-running horse of Hindu nationalism behind it all over India. The state can easily identify his enemy. If anyone stops this horse, he must go to jail, or else follow in his footsteps without a word. Adolf Hitler said, “Break the enemy’s morale with terror, sabotage and amazement.” The intense reluctance of the state to allow a person to say or criticize something against the state. That is why the state creates restrictions within the state structure that are detrimental to civil society but which lack any justification for civil protection. The people do not have the power to challenge these prohibitions because before controlling the public order, the state has created the weapon of control of the people by the parliament (by the members elected by the citizens) and sent it to the judiciary. Amendments to the controversial 1967 The Unlawful Activities Act (Prevention) UAPA, law have been passed on July 7, 2019, to make the CAA law easier to implement and to keep them in check despite the criticism. Those who opposed the CAA Act were arrested without trial under this act. We are ashamed that 11 critics like Meeran Haider, Safoora Zargar, Devangana Kalita, Natasha Narwal, Khalid Saifi, Dr. Kafeel Khan, Sharjeel Imam and Akhil Gogoi have been nominated by UN special rapporteurs and five members of UN working group on Arbitrary on June 26, 2020, detention instructed to release from state arrest.

However, not only those, three controversial agriculture bills were passed in the parliament in 2020. Farmers’ organizations protested against the bill by blocking National Highway No. 44 in Delhi and continued their agitation against the government. Since the movement was not liked by the government, the focus of the government was on Twitter to prevent the movement from spreading on social media. The government issued a notice to Twitter on January 1, 2020, ordering it to shut down the Twitter account that provided inflammatory speeches that stimulated inspired the movement. The government also warned Twitter that if it did not comply, it would file a case under Section 69A of the Information Technology Act. Following the government’s order, Twitter authorities were forced to close 250 accounts.

On February 25, 2021, the central government issued the "New Information Technology (Intermediary Guideline and Digital Media Ethics Code) rules. The law stipulates that if there are more than 5 million subscribers, digital platforms will be required by the government to disclose the primary source of any message. If the government desires, wants, according to the law, the digital platform would be bound to disclose the content of any message. It goes without saying that this law of the government has the intention to restrict the freedom of people and their voice to criticise government policies. In the case of retired Justice K S Puuttaswamy vs Union of India (on 24 August 2017), the Constitutional Bench of 9 Justices of the Supreme Court (Justice J. S Khehar, J. Chelameswar, S.A.Bobde, R.K. Agarwal, R .F. Nariman, A. M. Sapra, Dr. D.Y. Chandrachud, S.K.Kaul, S.A.Nazeer) have ruled to associate the right to privacy with the right to life and personal property of the person as referred to in Article 21 of the Fundamental Rights. Regarding the right to privacy, Justice J Chandrachud said: “Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognized. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination”. Naturally, the question arises as to why the government has repeatedly sought to curb criticism of the government by exposing citizens’ freedom of speech? After recalling Jeremy Bentham’s concept of “Panopticon” here, he said in his theory that “there is a central tower surrounded by cell. In the central tower is the watchman. In the cells are prisoners or workers or children, depending on the use of the building. The tower shines bright light so that the watchman is able to see everyone in the cells.” Similarly, Michel Foucault expanded the idea of the panopticon into a symbol of social control that extends into everyday life for all citizens. Here the state is the watchman and the citizens are the disobedient prisoners.

However, the current class character of the state is not complementary to the civic interest. The assault of the big capital in the age of neoliberal globalization has not only aggravated the crisis. The state attitude to consider people’s rational grievances is a matter of new deeper concern. On one hand, the state is rolling back. On the other hand, the state is trying to coercively superimpose its paternalistic control over society, thus creating a new chock-point to discipline people that is damaging pluralist voice, the autonomy of individual, and identity.

References:

1. Locke John. (1689 )Two Treatises of Government.
2 Rousseau Jean Jacques (1762) The Social Contract.
3. Marx Karl. (1848-1849) The Neue Rheinische Zeitung: Organ der Democracy.
4. Held David. (1987). Models of Democracy. Cambridge, Polity press.
5. Bentham Jeremy. (1792). Panopticon, or The Inspection House.
6. Foucault Michel. (1975) Discipline & Punish The Birth of the Prisons.
7. The Unlawful Activities (Prevention) Amendment Act, (2019). www.mhr.govt.in
8. Justice K. S. Puttaswam Retd vs Union of India in 2017. write petition civil no 494 of 2012.
9. The Information Technology (Intermediary Guideline and Digital Media Ethics Code) Rules, February 25, 2021 www.meity.gov.in

* (Authors: Mohiuddin Mondal, State Aided College Teacher at Prasanta Chandra Mahalanobis Mahavidyalaya, (Kolkata) Head of the Department, Faculty of Political Science and Abhijit Jana, Guest Teacher at Sonarpur Mahavidyalaya,(Kolkata) Faculty of Political Science)

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