The brutalization of the repressive apparatus of the state and the criminalization of politics and the adoption of Reichstag fire tactics to eliminate the left in West Bengal were evident much before the formal declaration of Emergency, whose immediate provocation, among other matters, was an Allahabad High Court judgment that declared Mrs. Gandhi’s election to Parliament in 1971 null and void because of certain electoral malpractices in her campaign. As mentioned, practically all the fundamental rights enshrined in the Constitution were suspended, including habeas corpus, with an “operational moratorium on the autonomy of the country’s democratic institutions.” Preventive detention, which was hitherto liberally used against the radical left, was now applied to imprison all of Mrs. Gandhi’s political opponents, indeed, even some of her prominent intellectual critics.47 There were now no judicial curbs on executive power and, de facto, the status of Parliament was reduced to that of a rubber stamp.
What really distinguished the Emergency from the period immediately preceding it was that during the Emergency, Indira Gandhi and the regime she headed broke the establishment “rule” under which it was permissible to violate the CL&DR, including the fundamental rights, of the Naxalites and the wretched of the Indian earth whom they had organized, but not those of the politicians and intellectuals of the establishment. If there were some 40,000 political prisoners in jail or in police custody in 1973, come the Emergency, that number touched 140,000, what with the ban now extending to twenty-six parties, beyond the usual Marxist-Leninist ones. The Shah Commission’s findings on the “excesses” committed during the Emergency and the Bhargava Commission set up to investigate “encounter” deaths in Andhra Pradesh—seventy-seven of which had been reported to have taken place—exposed the rot that had set in, but those indicted or accused of criminal conduct went on to make successful careers. Indeed, beyond the investigations, the then chief minister of Andhra Pradesh, had, on more than one occasion, claimed that he had “wiped out” the Naxalites.
“Police encounter”—a term used by the Indian police, paramilitary, military, and other security forces to explain the death of an individual whom they have cold-bloodedly killed—is, in reality, a planned extra-judicial killing not authorized by the law or by a court of law, in most cases, staged by planting weapons alongside the dead body to indicate the reason why the person was killed. A first information report is lodged against the dead person reiterating the police version of events. Truly, independent India did not make a break from its colonial past. Just as the British colonialists had put in place a repressive legal structure to deal with the militant section of the nationalist struggle for independence and called it “terrorist,” maintaining all kinds of repressive sections on the statute book to repress it, the post-Independence Indian state continued in the same vein as far as the Naxalite movement was concerned, and also with respect to the nationalist movements in Kashmir and the northeast.
While the Bhargava Commission was prevented from completing its assigned task, one recalls with horror the encounter killings in Andhra Pradesh, a few of which were investigated in detail by a committee (set up by Jayaprakash Narayan, as president of the Citizens for Democracy) headed by V. M. Tarkunde, and published as a report entitled Encounters Are Murders, due mainly to the painstaking work done by the eminent human rights lawyer and activist, K. G. Kannabiran, as member-secretary, and a group of committed civil liberties activists. But the accused, allegedly responsible for the killing of young Naxalites/Maoists in cold blood, claiming falsely that the latter were killed in encounters (that had never taken place), were never tried and punished for murder. The principle of ministerial and collective responsibility of the cabinet was never respected. Consequently, the old adage that “impunity breeds contempt for the law” began to apply; the wielders of repressive political power had nothing but scorn for the legal code. What resulted was an ambience of “cultivated ignorance” in the sphere of “governance” that brushed off extra-judicial killings as mere aberrations.
Kannabiran hits the nail on the head when he pins all this down to failure to restructure the old institutions of the state in terms of the new Constitution of independent India. The colonial value system continued to prevail “despite an avowedly democratic Constitution” put in place on January 26, 1950. The establishment view was that crime could not be investigated nor security preserved if the law were followed; indeed, crime could only be investigated and security safeguarded by breaking or circumventing the law! Kannabiran cites case law to show that the Supreme Court drew support and inspiration from what a colonial court had decreed in a case wherein the accused was a revolutionary of the Anushilan Samiti, a political outfit that advocated revolutionary violence as a means for ending British colonial rule in India. This was to the effect that “illegality [i.e. torture] in procuring evidence does not vitiate the trial,” thus persisting with colonial jurisprudence.48
Indeed, in true colonial form, the “conspiracy” provisions of the Indian Penal Code, mainly Sections 121 and 121A, promulgated by the colonial state in Act 45 of 1860, were used to strangle the CPI(ML) by holding the leaders of the Naxalite movement on a tight leash, in the Parvathipuram Conspiracy Case related to the Srikakulam armed struggle.49 Many of the accused were killed in so-called encounters after the charge-sheet had been filed. Such viciousness reminds one of the first Lahore Conspiracy Case, initiated in 1915, under the Defence of India Act, against members of the Ghadar Party, a most merciless lawsuit by the colonial state, in which out of those of the “conspirators” tried in a special tribunal convened in Lahore (such tribunals were also convened in Benares, Mandalay and Singapore), forty-six were executed and 194 given life sentences.50 Then there was the Cawnpore (now spelt Kanpur) Bolshevik Conspiracy Case of 1924 in which communist leaders M. N. Roy, Muzaffar Ahmed, Shaukat Usmani, Singaravelu Chettiar, S. A. Dange, Nalini Gupta, and others were charged with conspiring to “deprive the King Emperor of his sovereignty of British India … by a violent revolution,” this just a year before the formal launch of the hitherto émigré CPI in India in 1925. Also, following the Sixth Congress of the Communist International in July-August 1928 and publication of its “Theses on the Revolutionary Movement in the Colonies and Semi-Colonies”51 in December of that year, the Meerut Conspiracy Case was initiated in March 1929. What brought on this case was colonial fear of the spread of communist ideas in India.
In a truly colonial manner, so was the Secunderabad Conspiracy Case, filed in August 1974, in which writers and poets of the Revolutionary Writers Association (RWA; Viplava Rachayitala Sangham in Telugu, known as Virasam)—T. Madhusudan Rao, K. V. Ramana Reddy, Varavara Rao, Cherabanda Raju, M. T. Khan, and M. V. Ranganatham—were charged, alongside Maoist revolutionaries K. G. Sathyamurthy and Kondapalli Seetharamiah, among others. Here were writers and poets accused of sedition and “waging war against the state,” the sedition charges under 124A of the Indian Penal Code, inserted by Act 27 of 1870. The spectacular growth of RWA after its formation in 1970 into a literary-political movement had obviously unnerved the Andhra Pradesh government, for the trial went on for fourteen and a half years, and with some of the alleged offenses deemed non-bailable, one of India’s finest radical-left poets, Cherabanda Raju, died in jail, his contemporary, Varavara Rao suffering several years of incarceration.52 The “continuation of British Indian traditions was responsible for the characteristically very colonial response” of the state in independent India in not only subjecting radical politics to conspiracy charges, but also in the Supreme Court’s approach to the Emergency and MISA.53
UNABATED COLONIAL POLICY
Even the successors of the elite nationalist leadership of the anti-colonial movement were least concerned about dismantling and replacing certain colonial political structures and institutions. Moreover, India’s defeat in its China war of 1962 had precipitated a huge crisis of confidence. Indian “patriots” of all hues felt deeply humiliated. The Nehru government had been aiding Tibetan separatism, claiming