As India enters its 77th year of Independence, there is much to celebrate. India not only survived the challenges of poverty, religious strife, caste and secession, it has thrived. It punched well above its weight in global and economic affairs, as a chief negotiator in major conflicts like the Korean War, as the world’s pharmacy, as an IT hub, and as one of the fastest growing economies. From the trauma of Partition and colonialism, the country has come a long way. There is much more to be done if India is to fulfil the aims of the freedom struggle and support the aspirations of its 1.4 billion citizens. In particular, the Indian State’s design, which enables it to effectively centralise power and promote expediency over process, undermines its successes.
The freedom struggle was novel in its commitment to non-violent protest and in emphasising the importance of process in achieving an aim. This played out especially during the First Non-Cooperation Movement in 1922, when it looked likely that British rule would collapse, but Gandhi called off the agitation because of the Chauri Chaura incident, in which a mob burned down a police station on February 4, 1922. Gandhi called off the agitation, and his arrest followed. This incident had a clear lesson for the freedom struggle ― the means are as important as the end.
At the time of Independence, the trauma of Partition, the integration of the princely states and widespread poverty resulted in a constitutional setup where the Union government could convert the country into a unitary state and override fundamental rights. The State can exercise such powers through emergency provisions, the office of the governor, money bills, ordinances and more. These centralising powers that legally bypass established processes have outlived their purpose; a transfer of power away from the Union to lower tiers of government is needed to deepen the country’s independence.
The challenge posed by such centralisation and discretionary powers was clear under Indira Gandhi’s rule, through the combination of the Maintenance of Internal Security Act (MISA), President’s Rule, and finally, the imposition of internal Emergency checks on democracy and executive action to support political aims. Since Independence, President’s Rule has been invoked 121 times, more often than not to support political goals rather than to resolve a genuine crisis. It was used about 70 times between 1966 and 1984. Similarly, the Governor’s office, which was conceived as a way to support fledgling state governments, is now a convenient tool of control for the Union against Opposition-ruled states. The wide ambit of powers provided to them, including withholding assent through pocket vetoes or forwarding them to the President for review, hinders the functioning of state governments. For example, 19 bills passed by the West Bengal government, dating back to 2016, still require the governor’s assent in order to become law.
In recent times, such as during the Covid-19 pandemic, the Union was able to bypass the federal structure by unilaterally imposing a lockdown under the Disaster Management Act (2006) and Epidemic Diseases Act (1897), which allowed it to suspend the free movement of people and amend the Essential Commodities Act without any Parliamentary or state oversight, even though the Seventh Schedule lists health as a state subject. Such centralising tendencies underscore the ease with which the state can, if it desires, bypass constitutional processes to achieve an aim.
The tussle between fundamental rights and state control usually veers in favour of the state. On the one hand, Articles 14-21 of the Constitution enshrine all citizens’ fundamental rights and liberties. This is countered through the use of preventive detention, arbitrary arrests and raids. When abused, these provisions enable the state to prioritise political aims over due process, as seen with the sedition clause of the IPC, the use of economic offences under the IT Act and FERA, the misuse of preventive detention laws spanning governments, from the Maintenance of Internal Security Act (MISA) to the Unlawful Activities (Prevention) Act. These laws may have a place in the Union, and should be used in the most extreme cases, with clear thresholds in place to prevent their abuse. For example, a declaration of Emergency must be ratified by 2/3rds of Parliament to be enforceable, only after which fundamental rights can be suspended, that too for six months; a similar mechanism that creates prevailing conditions to implement such laws might find a balance between fundamental rights and national security, while ensuring that due process is followed.
Seventy-six years after Independence, the Indian republic has grown and adapted to a host of challenges. It successfully integrated a divided and broken country and built its foundations. It improved the quality of public health and education and has empowered all its citizens with some basic democratic rights. The state’s discretionary powers lie in contrast to the vision of the freedom struggle, which was born out non-violent protest that demonstrated that the ends do not justify the means; the state’s powers must move to local levels of government and to ordinary citizens to ensure that the ideals of Independence are fully upheld.
Vibhav Mariwala studied History and Anthropology at Stanford University.
This article was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.