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Shanthan: Hello all, welcome to the LAOT podcast series. I’m your host Shanthan, I hope you and your family members are doing well and keeping safe. Through this podcast series we intend to bring to our listeners conversations with some great people on a wide range of topics covering law, politics, sociology and many more. For our first episode, we have with us Mr. Arvind Narrain. Mr. Narrain has been involved with research, writing and practice related to law and social concerns. He has done his LLB from NLSIU, followed by a masters from University of Warwick as a Chevening scholar. He is currently in the process of doing his PhD on the topic of “Mapping Ambedkarite Jurisprudence” at the NLSIU. Today we will discuss his latest book “India’s undeclared emergency: Constitutionalism and politics of resistance”. In this conversation we talk about authoritarian and totalitarian states, methods of resistance in modern India, India’s declared emergency in 1975 and other related issues. So without further ado, lets dive into it.
Shanthan: Welcome Mr. Narayan. Thank you for taking out this time to have this conversation with us.
Arvind: My pleasure
Shanthan: To begin the conversation light, writing a book is a humongous task. It takes up a lot of time. Usually there is some huge motivating factor behind it. What was that factor for you? More specifically, was there any specific event that triggered the thought to write this book?
Arvind: I mentioned in the acknowledgements that the idea began when I was asked to make a presentation on the 45th anniversary of the emergency in 2022. The All India People’s Forum was organising an event to mark it, and to think of the undeclared emergency by marking the declared emergency. They asked me to make a presentation which I did, after which people were interested in that presentation and asked me to share a draft of it and that’s where the idea of the book was really born. I got in touch with Archita from Western publishers. I shared a draft with her, and she said this has the potential to be made into a book why don’t you publish it – and she really pushed it. That’s how the idea emerged – that’s point one of the story. The other part of it is that the book is really a response to two questions – one is, if you believe that there is a fundamental threat to the constitution today, and if you believe there is something we need to do something about it – put differently, there is something wrong with the way the political situation is today, and the threat it poses to our constitutional values and how we need to do something about it. Those were the two underlying motivations for writing this book.
Shanthan: That’s very fascinating. Now going into the book, you’ve referred to the current regime as an undeclared emergency – on the other hand we have had the official emergency in 1975, and you catered a significant portion of the early part of this book to explain and lay down what happened during that time (official emergency). Could you take me through your intention in doing the same and also make it explicit on what is the connection between the 1975 emergency and the current emergency?
A: There’s a little bit of academic work on this. If you look at Tarunabh Khaitan’s article “Killing the constitution with a thousand cuts” – he makes a point about the two points of greatest democratic decline that this country has witnessed since independence – one is the 1975 emergency, and the other is the present Modi era. So that’s one parallel analogy between the two periods based on what Tarunabh identifies as indices of democratic decline in both periods. I take a slightly complimentary line – I shed a closer light on one particular phenomena on this idea of the emergency. When you think of the emergency, it’s really a time of fear which spreads across the populace itself. I narrate this through a very powerful narrative of a person called Bhim Sen Sachar – who in my reading was the Stan Swamy of the emergency in the sense that they were of a similar age group – and similar sets of courage. Bhim Sen Sachar was a recognised freedom fighter, and you might be too young to know this, but his son Rajendra Sachar was the CJ of Delhi High Court and was head of the PUCL for some years. Bhim Sen Sachar was also former CM of Punjab and Governor of Andra Pradesh, and a recognised freedom fighter. Bhim Sen Sachar was 82 at the time when Indira Gandhi declared the emergency. He was a part of the freedom struggle, and felt this was too much and decided to write an open letter to Indira Gandhi saying that the emergency you have declared is creating a sense of fear akin to many communist dictatorships, such that people in coffee houses are scared to communicate their thoughts out of fear they might be arrested. He felt that this was not the legacy of the freedom struggle and he says that the imposition of the emergency was wrong. Of course I’m paraphrasing it, but you’ll get the letter in my book.
Post this, in the aftermath of the emergency, the Shah Commission goes into the excesses of emergency and looks into the detention of Bhim Sen Sachar post this open letter at the age of 80+. For what? For calling out Indira Gandhi’s regime and their dictatorial tendencies. Sense of fear that Sachar called out was linked to the unrestrained use of the preventive detention (PD) laws – to round up the political opposition, actors of civil society, trade unionists and student activists. They’re all put into prison under this law. That is the lens I take about the 1975 declared emergency. Sense of fear, unrestrained use of PD law and added to it, most fundamentally a complete failure of the institutions of accountability – media, civil society and most importantly the judiciary. I spent some time looking particularly at the judgement in ADM Jabalpur. I don’t know how you do it today in constitutional law, in my time we spent no time looking at this judgement at all. It’s a shame because it’s one of the most important judgements of all time – you and your colleagues at the blog should read it. There’s a fantastic book by Seervai on the emergency – habeas corpus and emergency. He looks at great detail into the ADM Jabalpur judgement – both the majority and minority. Before that (the SC’s judgement in ADM Jabalpur), 9 HC’s said that a person has a right to challenge his detention on the basis of the violation of the MISA act. This is an important point – they’re not saying constitutionality. You all agree that it’s a draconian law. But, draconian as it may be – it’s still a law with some procedure. Under the MISA act, when you detain a person you have to satisfy the condition that person is prejudicial to national security – the detention order has to indicate that. Secondly, you can be detained only by the detaining authority – only they can detain – if that’s not there then the detention order is invalid. So HC’s said that they were going to apply this minimal level of scrutiny and if the order is in conformity with this procedure, it’s valid. If it is is not, then we have the right to strike down the detention order.
The SC in its majority judgement by Justice Bhagwati said that the law of public safety is the highest law of the land. Which means that this minimal scrutiny the 9 HC’s upheld, the SC throws out, saying that you have no right. If you are detained under MISA during the period of emergency, then you have no human rights at all. That is the judgement of the SC and that’s the emergency. The failure of the emergency is that all forms of accountability disappeared. On the media, there is the great line by LK Advani, ‘you were asked to bend, and you crawled’. That was the way the media responded. The Judiciary caved in, especially the SC. The HC’s were doing a good job. The SC partially resisted in the form of the minority judgement of Justice HR Khanna. He knew he was against the government and majority. His line of reasoning was simple – he says every country has a certain rule of law framework, and the rule of law cannot be extinguished by the emergency. If we go by the line that the executive can extinguish the rule of law, then we’re in a Nazi like situation. Then you can do anything you want by law. He quotes Ambedkar and says that the executive of the day has to govern by the powers given in the constitution and it cannot do whatever it wants. Rule of law is an integral part of constitutional structure, you cannot take it away. There are certain parts of the constitutional structure that cannot be taken away by any regime. Rights are not conferred by the SC, it just confirms them. You already have those rights. The executive cannot take away your basic right to fair procedure of law. That’s the dissent in ADM Jabalpur. The point I get to is there is the oppression of declared emergency, and there’s the resistance. It’s important to acknowledge both. When you go back to Seervai’s book – it’s a most poetic book where in the beginning he talks about this engineering student called P Rajan, 22 years old studying in the regional engineering college, Calicut. He was revolutionary in terms of his thinking. Picked up by the police from his hostel in college, and then there’s no sign of him. His father follows him to heaven and earth, trying to find out what happened to him. Only after the emergency is revoked do we get to know that he was picked up, tortured and killed by the police. Again as law students, we read law texts but we should also read his father’s beautiful memoir to his son. He says when my son disappeared, I went everywhere to find him but people did not want to associate with me because they were scared to help me in any way. There was a stigma that your son is somewhere anti-national or anti-state. I go a little bit into the autobiography into Rajan’s father. It is a beautiful story of a father’s search for his son. After he finds out about his son’s death, he wants to memorialise his son by naming a ward in a hospital after him. I was teaching a course to public policy students, and we talked of the Rajan case – and I asked them about REC Calicut, and they have a cultural festival called ‘Rajam’ after Rajan- it’s a way they’ve kept the memory alive. Seervai has also kept his memory alive. Seervai was particularly scathing of Justice Beg’s and Justice Chandrachud’s comments – Justice Beg basically said that the state has bestowed maternal solicitude upon those who were detained. And Justice Chandrachud said that he has a diamond heart hope that what the petitioners allege may never come to pass. So Seervai was particularly scathing of those comments. He says how many more Rajan’s may have died while these judges – sitting in their ivory towers (I am saying it, not Seervai) of the Supreme Court are unable to see the reality of what’s happening in the country.
Now coming to Justice Khanna. Today we all know that Justice Khanna was one of the most important judges in the SC. He was passed over for chief justiceship by the government for his powerful dissent in ADM Jabalpur. Nani Palkhivala pays a very beautiful tribute to Justice Khanna when he was passed over and subsequently resigned by saying that to the stature of a man such as Justice Khanna, Chief justice-ship would have added nothing. If you read invocations of brave judges, I went to one where Justice Yatinder Singh, addressing a range of magistrates. He said may you all go on to become judges like Justice Khanna. The point of invoking that story in such great detail is that sometimes in the contemporary, we’re blind to the possibilities of history. We’re blind to how history will remember us. Today you are scared -the government is breathing down my neck, I might as well comply with what they did. This is probably what our former chief justice did, went with the regime through and through. I don’t need to say this, it’s already been said by many people including former judges of the SC.
But when he resigned, he saw the way history judged him. History at that point of time. But history will be even harsher to our former chief justice – be it Chief Justice Gogoi or Chief Justice Bobde. But my point in invoking HR Khanna again is to implore our judges to not be limited by this day and time. You want to be remembered like Justice Khanna. Not the judge who cave to power, but the one who stood up to power. That’s your constitutional responsibility. So that’s again the point of going back to the emergency era – both to invoke the horror and the hope.
Shanthan: Thanks for your response. I have a follow-up question – what is more dangerous? The undeclared emergency or the declared emergency of 1975. If you say the undeclared emergency is more dangerous, why? Isn’t a declared emergency, constitutionally invoked to serve personal ends – a more direct and clear attack on the constitution?
Arvind: One point which should be noted that even in my particular metric of arrests – the emergency had over 100,000 arrests. The UAPA and NIA act arrests today are not that many. That question in terms of numbers and the fact that the political opposition was by and large in jail, is not true now. But look at the media, back then the media was completely shut down – but that’s not true now. Now, the media can still somewhat raise their voices. The civil society we still have, unlike under declared emergency. The comparison is not in terms of which is worse or better, but rather the general direction in which we are travelling. In terms of sheer numbers the declared emergency is much worse. But the point of declaration is that it brings into spotlight the nation, and secondly it submits you to the rule of law framework under which emergency is declared. Today we don’t have a declared emergency, so we don’t have any preventive detention law directly being used at that same scale. But what we have is the UAPA or the NIA Act. The UAPA is not a de jure preventive detention law, but a de facto preventive detention law, and is far more dangerous today than the MISA. If you look into the constitutional history, and drafting history and how Article 22 comes into place – what the debate indicates was that preventive detention was seen as an anomaly – it was an exception which had to construed narrowly and controlled and confined in as narrow a fashion as possible. Nonetheless, preventive detention is not valid for more than a year under the statute – of course it can be extended. Under UAPA, we have cases of people detained for 10-11 years, and then they’re acquitted. This is not an anomaly, you get these cases from around the country. In today’s age, under the UAPA, under the guise of criminalising terrorism – what you have is a far more dangerous preventive detention law purportedly to punish terrorism.
About the undeclared emergency, the point to note is the unconstrained use of the UAPA and NIA act. Unconstrained either by the media or the judiciary. That’s the parallel between what happened during the emergency and what is happening today. How is the judiciary remaining silent if people are held for 10+ years and there’s no underlying case – how are they silent? What does it say about the role of the judiciary, that’s what I’m asking. The point I want to make again, look at the UAPA and its statistics and figures. What’s the problem? It’s not that people are convicted or acquitted, but rather that the majority of people are neither convicted nor acquitted. They’re in a state of limbo for as long as 10 years. What does it say about a country which tries to pride itself as one with rule of law? You argue that these guys are guilty of terrorist offences, then try them in a speedy manner, let the judicial process operate. What is this infinite detention which is neither linked to acquittal or conviction.
Shanthan: So to summarise, you are saying that the undeclared emergency is more dangerous because it doesn’t have the same kind of spotlight that the declared emergency of 1975 had. Because other nations are not seeing it as an emergency, and so people at home and abroad are not criticising it as such or realising its effects.
Arvind: That’s a fair summary, but I would also caveat it by saying that to make the point of the declared emergency is certainly much more dangerous in terms of consequences – number of people arrested, political prisoners, complete media shutdown. In that objective criteria, the declared emergency is certainly worse. But the undeclared emergency is worse because of the fact we’ll get by under the guise of being the world’s largest democracy. We need to see that this is not okay for the world’s largest democracy. If you’re a democracy, then you can’t do all this to your own people – that’s the point of being a democracy.
Shanthan: Thank you, I think that aptly summarises what we were discussing. But going deeper into the book, in the chapter slouching towards totalitarianism, and the chapters thereafter as well. You are drawing parallels between the current regime and other totalitarian regimes. Like you draw parallels with Nazi Germany and the current regime in Myanmar to show how the route for implementing a very separatist ideology is through citizenship laws. But the supporters of Sangh say that you are exaggerating quite a bit through such examples. So how do you defend this? Perhaps I’m pre-empting with this question. But a regular attack on academics is that you exaggerate a lot for no reason. How would you defend this charge? Maybe your answer could explain the use of such examples.
Arvind: That’s a good question. People have been troubled a lot by how do you understand the current regime. If you go to constitutional law scholarship- someone like Kim Scheppele, their argument is that there exists a form of regime known as ‘electoral autocracy’ like in Hungary or Poland, where you have regular elections, but the government is authoritarian and autocratic which is unconstrained in use of criminal laws. So shouldn’t an electoral autocracy be a sufficient framework to understand this current regime? Rather than getting into grandiloquent terminology of totalitarianism. There are many ways of understanding totalitarianism. One of course is Hannah Arendt, who I quote extensively. She says there are only two examples of true totalitarianism – Nazi Germany and Stalinist Russia. This is one understanding of totalitarianism – form of total control she is gesturing towards. But I go to the framework utilised by Juan Linz– who distinguishes between what he calls totalitarianism and authoritarianism. That’s what this chapter slouching towards totalitarianism is based on. His argument is that an authoritarian regime at the end of the day is based on unrestrained power of the executive. It is a form of what they called Sultanism – where the ruler is all powerful and can do whatever they want. That’s in a sense what the idea of an electoral or non-electoral autocracy is – where you can do whatever you want. But in my reading, power for its own sake – the executive or the ruler is all powerful and can pursue his discretion in any form he/she wants. Examples of that of course would be if you read the Christophe Jaffrelot and Pratinav Anil’s excellent book on emergency called ‘India’s first Dictatorship’. What both of them have argued is that Sanjay Gandhi in particular was an example of Sultanism, where the kind of arbitrariness of discretion manifested itself through implementation of the 20 point programme which in Sanjay Gandhi’s mind was only two points – slum demolition and sterilization. Sultanism came from particularly this ruler who had ‘Mohammed Bin Tughluq’ kind of ideas: “This is my idea, I don’t care what anybody else thinks”. That’s Sultanism. It’s something the current regime also has – look at demonetisation, the harsh and hasty lockdown, you get the sense of a highly individualised authoritarian regime. Why I go to totalitarianism, because I feel it’s not adequate to understand the present regime. Again, I’m not saying it’s a totalitarian regime, but one slouching towards totalitarianism. When I say examples of Nazi Germany and Present Day Myanmar, that’s about the direction I feel we’re going in. Unlike an authoritarian regime, a totalitarian regime is firmly grounded in an ideology. In our case the ideology is Hindutva. The ideology has a totalising ambition, to totalise control – total control. The idea wants to remake India with a differential order of citizenship which is the CAA, where the Hindu has a superior right to a Muslim or Christian. If you want to get a sense of how this is rooted in ideology, go to Golwalkar’s book, Bunch of thoughts where he looks at what he calls 3 internal threats – Muslims, Christians and communists. Today you will look at communists broadly as including urban naxals, liberals, socialists every kind of dissident can get within the framework of communists. It is totalising, in that it wants to control all aspects of life -how do you say this? Look at the citizenship law which is in a way differential citizenship. I also look at the UP anti-conversion law, Karnataka Anti-conversion law etc. It is controlling your right to love, and the right to faith. In effect, you are saying if you are a Hindu, you cannot marry a Muslim and vice versa. Technically it only bans conversions, but in how it operates it punishes interfaith couples for trying to get married. The Karnataka law is a reversal of burden of proof – the police comes to arrest you, and you say you wanted to convert on your own free will – they will say prove it in court. They want to control what you eat through the cattle slaughter laws being made harsher- the current UP law and Karnataka law which are very harsh statutes. It is also about destroying livelihood of Muslim persons who are by and large in this profession. It is about controlling the right to food of the most marginalised communities in our country – the Dalits and Muslims. If this is not totalitarianism, then what is? You want to control who I love, what I want to eat, where I want to live – that’s the totalitarian ambition as far as this regime is concerned.
One more point about ideology – why is this ideology totalitarian? Biku Parekh has a very beautiful book on Hannah Arendt’s philosophy, in which he says a totalitarian ideology is one with an inability to tolerate any difference. From the student asking a question in class, to workers asking higher wages to the artists who makes problematic art, to a comedian who makes fun of you. None of them can be tolerated because they go against your idea of a uniform Hindu nation. This is the ambition of this regime, to do away with difference. What is the highest ambition to do away with difference? That’s the Nazi analogy. When you look at it, what is genocide? It’s a crime against human status, it is an attack on human diversity. So strong that it’ll eliminate an entire strand of diverse human beings. You can’t stand diversity. This elimination may take many forms – it may take the form of second class citizenship, it may take the form of depriving them of certain rights, it may take the form of making their life miserable and finally it may take the form of eliminating them. The Nazis had the ambition of eliminating at all points of time, maybe not? This came at a much later point of time, when they said lets go to the elimination stage. So totalitarian regime can evolve to the stage of elimination. A totalitarian regime may not always end up eliminating but it can always go onto that stage.
The other point of totalitarianism, it’s based as much in activating civil society, as it is based on operating the coercive mechanism of state, and we see that today. If we see the RSS and their network, it’s not just related to state – it has tentacles all over the civil society. That is the ambition of remaking society itself, seeding a certain prejudice as far as people are concerned, and building a unified Hindu society founded on fundamental hierarchy. Added to this is the part of the mob, what is a mob if it’s not an actor in contemporary Indian society. Where do you see the mob operate with such impunity in history, lynching people outside the rule of law? Nazi Germany as well as in the USA in the past. There are some interesting linkages that one finds. The anti-miscegenation laws of USA inspired the Nazis. These are some of the reasons why we have to think and understand the totalitarian regime in its totality and not restrict it to electoral autocracy. It’s a fundamental mistake to compare it to the Indira Gandhi regime and say this is worse or this is better. This is worse not because of what they did in the framework of authoritarianism. This is worse because it adds to it, towards the dangerous direction of aspiration for totalitarianism.
Shanthan: Thank you, that’s a very enlightening analysis. Usually people only see the end point of Nazi Germany and not the build-up towards it. By putting this framework, there’s more to the story than just the endpoint and you’re saying that maybe that’s the direction we’re headed in..
Arvind: That is again because it linked to the question of resistance – unless you understand the nature of the challenge, how do you resist the challenge? Unless you understand what is the nature of the beast you are facing, you cannot formulate apt ways to deal with.
Shanthan: Going deeper into the book, to the last chapter titled ‘what has to be done’, which is personally my favourite chapter. You talk about preserving the normative state. Could you explain what you mean by the normative state?
Arvind: Yeah, I got this terminology of normative state and prerogative state from a book you must read called Dual state by Ernst Fraenkel. Ernst Fraenkel was a German Jewish Labour lawyer and he is living through the middle of Nazi Germany, and the Nazis are tightening the screws around jews. How are they tightening the screws? Think about it as an aspiring lawyer. Fraenkel as a Jewish lawyer, the Nazis are tightening the laws around every profession. So jews are not allowed to practice as lawyers, the only exception being jews who served in the first world war. So Fraenkel is allowed to practice only because he served in the first world war. Slowly, that minimal thing goes as well. In fact there’s a great book I found later titled Lawyers without rights. It’s about the fate of Jewish lawyers in Berlin after 1933. The holocaust is such a big thing, what happened to the lawyers? How were the lawyers dealt with. This is about how Jewish lawyers were decimated completely as a community. But getting back to my story, Fraenkel feels the noose tightening around him and at the moment he’s there in the centre of it – he says I want to understand this regime, so he begins work on this book called dual state. He’s thinking about this as a lawyer, not a sociologist or anthropologist, so he works with the material he has – which are the legal cases he gets. The material he finds in his library are Nazi decrees and laws. His theory is this, Nazi Germany at the height of its power was a balance between prerogative state and a normative state. Prerogative state he says is that which is unbounded by law, or bounded by lawlessness. There’s no questioning to what you’ve got. If the Gestapo picks you up, they can do whatever they want. There’s no framework. You disappear into a blackhole, if you’re picked up by the gestapo which is the heart of the prerogative state. Compared to this, the normative state is one bounded by law. Why is rule of law important for Nazi Germany? Because if Nazi Germany wanted to be a capitalist state – a predictable rule of law system is essential. Capitalism depends on regularity. For example if I do something today, which someone tomorrow can randomly change then where is the idea? How can capitalism flourish? So both these states function within the Nazi context, that was his argument. He says that as a lawyer what are you trying to do? As a lawyer your efforts at all points of time is to get someone out of the prerogative state to the normative state. A normative state you can deal with prerogative state is a blackhole.
Coming to why and how I use this framework as far as the Indian context is concerned, the argument is that the preventive detention provisions, UAPA, NIA are part of the prerogative state and the prerogative state is expanding at the cost of the normative state. So our struggle at all points of time is to see how we use the normative state to keep the prerogative state in check, or how do we use the normative state to keep the prerogative state in check or how do we use the normative state to expose the excesses of the prerogative state. And I will make one last point and then maybe leave it at that – there’s one more interesting book called the The Wall and the Gate by Michael Sfard. He is an Israeli lawyer practicing in Israeli courts, and his imperative is to challenge the Israeli occupation of Palestinian lands, challenge the building of the wall which takes over Palestinian lands, challenge the abductions, challenge assassinations of Palestinian persons done by the Israelis. The point of the book is a to use a lot of historical context and examples. I like doing that, because sometimes when we’re stuck in our own context, ideas don’t always come. But sometimes you derive inspiration when you look at others stuck in difficult circumstances and Israel Palestine if anything, from 1948 onwards, in a struggle of over 50 years, the fact that people are still persisting in very difficult circumstances is quite inspiring. Michael Sfard says that the way we see is that each time we go to court we produce an indictment of the Israeli occupation. Through these indictments of Israeli occupation, we’re trying to defend the idea of the normative state vis a vis the prerogative state. The work we do as civil liberties folks, artists, different kinds of groupings etc. is to keep an eye on the imagination of the normative state. And each time it’s not a technical point that the abduction is wrong. But rather by saying that the abduction is wrong, we’re actually trying to reenforce the idea of the value of the right to life, reinforcing the idea that the right to life and freedom from torture is a universal fundamental right, and that assertion he says is never in vain. Again this goes back to Arendt where she says that one of the genius of Nazis was to corrupt human solidarity. They made you believe that all protest was meaningless, that was the fundamental and evil genius. So your imperative then is to say that solidarity has meaning, ensure that both good and evil deeds don’t disappear into what she calls holes of oblivion. If there are no holes of oblivion, in the ways you hold onto what is going on, the good that is going on and remember the evil which has happened then you’re constructing a sense of community and building a possibility of resistance. If you didn’t know that anybody else is thinking in this similar fashion, then you’ll think well what can I do? This is how the world works. But if you think that people are saying ‘hey you know this is wrong’ then you build a sense of community. That’s an important starting point at building resistance.
Shanthan: Yeah, after reading your book and engaging with it I had similar thoughts, I had so many thoughts that I would’ve never had if I didn’t read your book, and you hadn’t had the opportunity to spread your ideas. So moving on, I think you’ve answered this, but I wanted a more specific answer. In your book you talk about how we should balance between reckless optimism and reckless despair. Why do you think that this balance is important? I think you’ve mentioned this throughout the book, but I wanted to know why it’s important.
Arvind: See the point I think about activism, I mean we’ve always had a sense of you know the world is not an easy place to be in. People often produce a sense of despair about where the world is going. Let me try this in a different way. What is the problem with reckless optimism? See we don’t want to be in a place where we think all is for the best, and the best of all possible worlds inspite of all the evidence to the contrary. You live in a La La Land, a Don Quixote kind of figure you live in your own world. Actually, Jindal Law review’s journal has an edition devoted to Prof.Upendra Baxi, where there’s a writing by I think Kaushik Sarkar – where he calls him a Don Quixote like figure. What is a Don Quixote like figure? He’s recklessly tilting at windmills thinking it’s a giant. He lives in his world of books, imagination, ideas without any link to reality. My point there is that I think Kaushik has got Prof. Baxi wrong. He has a Don Quixote like imagination, but the different thing about him is that he’s linked to communitarian struggle, so his imagination comes from the communities, fed and nourished by the communities. Which brings me back to reckless despair. You don’t want to have an reckless optimism of a Don Quixote, you want to have the kind of optimism which is grounded in struggle and that is I think is Prof. Baxi’ standing. You read his work, engage with his thinking and you get a sense of what is possible when struggle and law really come together. When people’s movement and struggle come together. I’ll give one example which tells you why the optimism has to be grounded. There’s a judgement of the Indian Supreme Court called Tukaram v. State of MH – it’s a rape case where the SC acquits two rapists who raped a tribal woman in a police station. It’s a horrible judgement by any stretch of imagination. I had a chance to do a long interview with Prof. Baxi – I asked the question how did we get to know about this judgement? He said he had a bad habit of reading AIR’s, he found this judgement it was a horrific judgement and felt he has to do something about it. But what should he do? Should he write an article? Write a letter what should he do? So he wrote an open letter to the Chief Justice written by him and 3 other law professors. That open letter the women’s movement picks up on it, it becomes a large scale movement against sexual violence, results in amendment to the rape law. So I’m giving an example of how struggles and the law come together. Calling Prof. Baxi Don Quixote is a fundamental disservice, that’s not a Don Quixote, that’s someone grounded in struggle, that’s the big difference from Don Quixote. So then we come to the question of reckless optimism, we need grounded optimism and not reckless optimism, an optimism grounded in struggle. Look at the work of Michael Sfard, work of Rebecca John, absolutely wonderful work. Many lawyers can be named, Dushyant Dave, Mihir Desai, V. Suresh, PUCL in Chennai have a range of people, KG Kannabiran & K. Balagopal, unfortunately who are no longer with us, range of people who are deeply inspirational in the kind of work that they’ve done. It’s from them that we derive a sense of optimism, because when you see people out there you get inspired thinking I can do this as well, that’s where your optimism comes from. When you say between that and reckless despair, what is despair? Despair is a sense that nothing can change, I quoted this a little earlier that the idea of the Nazis is to corrupt human solidarity by saying protest has no meaning. That kind of despair you should never give into, because then what happens is everything disappears into holes of oblivion. We want to say that that’s never the nature of any struggle, we will always have to remember the injustices and to remember the lives of enough, quoting from Arendt in the book she calls Men in dark times, remembering the lives of people in struggle – of course today it will be called persons in dark times but the point she makes is beautiful, that even in the darkest of times we have the right to expect that there will be some light, and sometimes the light will come not through theories and concepts but through the lives of individual men and women whose lives in almost all circumstances will kindle that kind of light. Whether that light is the light of a candle or the light of a sun it doesn’t matter, but it comes from individual lives, and that’s what will break up or cast that light which will defend for me the idea of complete darkness. Second last point I will make and end with this, people who often say despair – they’re generally not the ones in the most difficult circumstances. They generally have very comfortable lives, sitting in their comfortable homes saying ‘oh it’s so horrible’, and who do I quote for this? Two very important figures – Gautam Navlakha, you read anything by him and you realize how exceptional and incredible this man is. He says when he was picked up to taken to jail, he says that there’s a crack in everything through which the light always gets in, that’s his sentiment. You read about Varavara Rao who has been in jail for many years, is 80+ years old, he’s my analogy to Bhim Sen Sachhar for today. He says political prisoners don’t know the meaning of despair, they only know the meaning of hope. Then you see our young friends in colleague . You see that people in very difficult circumstances, and you realise reckless despair is not an option you have. Absolutely not an option, so I say you find a place between reckless despair and reckless optimism. That’s the long answer to your short question.
Shanthan: Thank you, that’s actually what I had in mind when reading the quote Mr. Rao, because usually as you said people not in the most difficult situation who use despair as an excuse. Rather it’s people who are in that moment of struggle who want to find hope and fight against it. Moving on, I think this will be our last question. So you’ve had some brilliant conversations around this book with people. While having these conversations, do you think you realised you missed out on something that you would’ve wanted to add, or do you think the book is focused enough that you wouldn’t have added anything else.
Arvind: That’s a really great question in terms of what is it that you missed out in the book! For example we spoke about Ernst Fraenkel in such great detail, and just today my friend on Ernst Fraenkel’s legal career, and I was like wow that would’ve been great to look at. The book I shared with you, Lawyers without facts – the fate of Jewish lawyers in Nazi Germany, I didn’t have that book, some friend just shared it with me 5 days ago. So that would’ve been great to include in the debate as well. But the large point which is actually a question Ram Guha asked me in a conversation we had together, he says since your book comes on a legal framework and Yogendra Yadav comes from a political science framework, both of you point to the same thing that at the end of the day this regime has to be defeated by forces outside the political arena – through civil society, CAA protests, farm laws protest etc. He said his fundamental point is that this regime will be defeated by political forces, within the sphere of electoral politics. There’s no way out of it. At the end of the day electorally you have to defeat them. I haven’t looked closely at this, because that’s not my training – so I haven’t looked at the interplay between a political party and civil society. I think that’s a very important question because I’m saying what is to be done, then surely I have to say what is a political party, how do you see a political party in this and how would it link up. Ram would be more specific he’d be like what about the congress? Do you think they have the ability to fight this kind of a regime or should it be some other force. And I feel those are the questions I don’t have an answer too. Where I come from, I can think of a sense of community coming from the sphere of law, but these are important questions that I need to think a little more about which was my response to Ram Guha as well.
A process of discussion is always ongoing . There is always this though of ‘hey that’s great, why didn’t we think of developing on those lines as well’. The other point which emerged were with Madhu from the women’s rights movement in Bangalore – infact when I made the presentation on the 1975 emergency in 2020 as well, the point I think I made was that I overstated the point at that time that I made the case that everything begins with the constitution – protests and demonstrations etc. begins with the constitution. She said I’m not sure you got it right, because how do you account for the possibility of culture. Does nothing happen outside the constitution? I felt she was right, that I can’t begin with the constitution and I started focussing on culture. I think culture is there throughout the book. If you go back to Karnataka the state I’m most familiar with, looking at challenging Yogi Adityanath’s love jihad law – one challenge is violation of the constitution, the other is the 12th century poet and reformer Basavanna who said inter-caste marriage in 12th century is not a marriage, it is a revolution. That’s the other dimension, I would think culture is something I would engage with more deeply. The last point, I think I see this book as an invitation to conversation. It’s saying that hey, I think of a problem, I’ve thought of some solutions and then I invite all responses and then lets talk about it.
Shanthan: I think that’s a very wonderful phrase, an invitation to have a conversation. I think only as long as we start having conversations can we hope to move ahead in any direction, it might be in the opposite direction or good direction, but it is the conversation which starts the moment. So I might put you in a spot here, it’s a difficult question because even if I write a thousand word blog post I find it difficult to summarise in two sentences. But I will put you on the spot here and ask you to summarise the essence of your book in one or two lines, if you find any line apt to do that.
Arvind: What about the line I gave you? Does that work? (laughing) this book is an invitation to conversation.
Shanthan: I think that works definitely.
Arvind: But I tell you one of the concepts in the book integral to it is actually the – it’s about saying what the problem, and saying what do we do about this kind of a problem. And integral to it is the idea that we need to break our sense of isolation and loneliness. If you ask me now, isolation and loneliness is something we can keep going on into forever. But if you want one line, then it is that this book is an attempt to understand about the problem of the contemporary and the essay is a response to the problem I see.
Shanthan: Thank you sir, it was a pleasure talking to you.
Arvind: Thank you Shanthan, thank you.
Shanthan: So that’s it folks from our end. Before parting I wanted to mention a little bit about LAOT – Law and Other things. LAOT is a legal blog which was founded in 2005 by a few enthusiastic young legal scholars who shared posts and articles about India’s constitutional and legal developments. Since 2017, the blog has been managed by the student team of NALSAR University of law under the guidance of our senior editorial board. LAOT publishes analytical and explainer pieces in the field of public law with a keen attention to mentoring law students throughout the editorial process. It also initiated a new scholarship section, hosting a roundtable discussion on contemporary discussions around public law. So if public law is of interest to you, then please head onto lawandotherthings.com and also make sure that you subscribe to our podcast series and our monthly newsletter. Thanks for listening. Take care and stay safe.