Elections and the Issue of Civil Liberties

Civil liberties and democratic rights organisations have for long been pointing to bit-by-bit dilution of our constitutional freedoms under successive governments since 1977. But the past five years, in particular, have witnessed horrendous crimes where life and liberties of people, especially of Muslims, women, dalits and adivasis have been targeted. Whereas the cohorts of the ruling Bhartiya Janata Party (BJP) have been shielded against threat of prosecution or indeed extended immunity. It is also worth remembering that the Armed Forces (Special Powers) Act has been in operation for decades (60 years in Nagaland, 50 years in Manipur, 30 years in Jammu and Kashmir) and the situation remains far from normal and “disturbed”.

The National Security Act (NSA) has been used against victims of gau rakshaks (cow protectors), dalit activists and journalists. The Unlawful Activities (Prevention) Act (UAPA) has been wielded to silence people who speak up for the marginalised and oppressed. And the sedition law has been used to threaten anyone who critcises Prime Minister Narendra Modi or his government. Therefore, it is important to see in these elections what political parties have to say about civil liberties.

Admittedly, the manifestos of key political parties had come to lose their meaning and there was scepticism over their sincerity in pursuing the commitments made therein. But elections for 17th Lok Sabha appear to be heralding the re-emergence of manifestos.

In the context of BJP playing fast and loose with the Constitution by protecting and mainstreaming lynchers, mobsters, and vigilantes, while going full throttle against dissidents and dissent, most manifestos are trying to make a difference by shifting the nature of political discourse that has hit an all-time low under BJP rule. The past five years of BJP rule are marked by relentless attacks on our constitutional freedoms. Thus, the BJP does not have anything to offer on civil liberties. Indeed, if one goes by what Union Home Minister Rajnath Singh did say the other day that if BJP returns to power, they would make the sedition law more stringent. This, when the Law Commission appointed by the BJP-led Government has itself called for its repeal.

In 1977, all political parties, barring Congress, had opposed the Emergency and promised to restore democracy and constitutional freedoms of people. While much water has flowed since then, and many a commitment has fallen by the wayside, there is once again seems great enthusiasm among parties today on issues such as civil liberties, which are getting trampled in the name of national security/national interest.

It is worth noting that BJP’s manifesto, which seeks to exploit the fear of Pakistan and terrorism, and promises a hard line on national security, came a cropper the very day it was released. On April 3, Jammu & Kashmir’s non-representative administration issued a decree banning civilian traffic on the national highway on Sunday and Wednesday and declared these two-days as dedicated to military convoys. The ban came into effect on April 7, and the very next day, the Army, Border Security Forces and the Central Reserve Police Force were plying their vehicles along with civilian traffic, thus making a mincemeat of the order issued at the behest of New Delhi, that too without consulting the Army and ignoring their “informal” advice that such an order “is not possible to implement”. When the government is unable to even consult the Army, BSF and CRPF on convoys, the BJP’s manifesto spouting national security seems hollow.

Also, the BJP has committed itself to abrogation of Article 370 and annulling Article 35A. The 48-page manifesto resonates with illiberal and un-constitutional provisions in line with its jingoist perspective on national security. They have also committed themselves to amend the Citizenship Act to bring in religion as a criterion for citizenship and complete the National Register of Citizens. But, there is not a single word on protection and respect for civil liberties. In other words, BJP has made it clear that it doesn’t care about upholding the Constitution, let alone live up to the promises made by the Constituent Assembly or the Freedom Movement, because it is committed to do away with the Constitution, which its mentor, the Rashtriya Swayamsevak Sangh (RSS) has been opposing for decades.

Against this anti-constitutional stance of the BJP, and in light of the all-round degradation of Indian democracy under their five-year rule, the manifestos of Congress and Communist Party of India (Marxist) stand out in contrast. True, Congress principally has a lot to answer for legislating and using draconian provisions against dissent or for framing laws that legitimise coercion. It also has a lot to answer for creating a political climate in which Right-wing extremists thrived and Left and democratic forces came under attack. Also, Congress was responsible for the Emergency in 1975, whereas CPI(M) and others have spoken up for restoration of democracy and protection of civil liberties. The CPI(M), after coming to power in 1977 in West Bengal, released all political prisoners but has used the law against a section of dissidents. Precisely, therefore, their manifesto on these issues is significant. In the past five years, Left parties in particular, as well as Congress, have lent support and have been out there on the streets against attacks on dissent, dissidents and in defence of democratic rights of people. The depth of their commitment to civil liberties will get tested even more, because Indians find themselves in the midst of a difficult and disturbing phase.

Take CPI(M)’s manifesto where, in a section titled “In Defence of Constitutional and Democratic Rights”, it promises to repeal the sedition law (S124A of the Indian Penal Code); repeal AFSPA and replace it with a new legal instrument that would provide a legal framework for the operations of the armed forces without draconian provisions; repeal or amend the NSA and UAPA; repeal of S499 of IPC on defamation; ratify the UN Convention Against Torture and of doing away with death penalty. All this is welcome because promising repeal of AFSPA marks a continuity with their stance in Tripura from where it was withdrawn when they were in power. Moreover, by asking for repeal or review of UAPA, which had been used in the past by the Left Front government in West Bengal, also shows that the party has unequivocally come out in defence of constitutional freedoms.

Equally promising is their espousal of “maximum autonomy” for J&K based on Article 370 along with regional autonomy for Ladakh. This must be placed against the scenario where the BJP-led government treats Kashmiri Muslims as second-class citizens, if not ‘enemies’, to be suppressed. Although the million-dollar question is how that hollowed out autonomy can be restored to its original essence. The point is that it at least shows that another narrative and another course is possible in J&K that dispenses with the muscular approach.

The CPI (ML) Liberation, too, in its manifesto devotes para 19 to “reform to protect civil liberties and democratic rights” where they commit themselves among other things to scrap a number of draconian laws such as on sedition, criminal defamation, UAPA, NSA, AFSPA; a Supreme Court-monitored tribunal on custodial torture and killings; making the National Investigation Agency and Intelligence Bureau accountable to Parliament; updating the jail manual; ending militarisation of civilian areas in J&K; and doing away with detention camps for “suspected illegal immigrants”.

The Congress manifesto is more remarkable given their long history of eroding or curtailing constitutional freedoms. So, for INC to come out forcefully in favour of civil liberties is a politically significant commitment against which their performance will be judged. In para 30 of its manifesto titled “Review of Laws, Rules & Regulations” , Congress says that India is “over-legislated and over-regulated country” and promises to: (a) Repeal laws outdated/unjust or unreasonably restricts freedoms; (b) Amend instruments to bring them in accord with Constitutional values; and (c) Codify and reduce them to ease compliance burden on citizens. And promises to omit S499 of IPC to make defamation a civil offence; omit sedition i.e. S 124A; amend laws which allow for detention without trial; amend/review AFSPA to remove immunity for crimes such as enforced disappearance, sexual violence and torture; amend laws to restructure every investigating agency’s power to search, seize, attach, summon, interrogate and arrest in accordance with Constitution, Criminal Procedure Code and Indian Evidence Act.; amend IPC to make bail the rule and jail the exception; enact a law titled Prevention of Torture Act; and to release undertrials.

Admittedly, only two out of three political parties whose manifesto focuses on civil liberties are currently represented in Parliament. And barring Congress, neither of the two Left parties are close to making their presence felt in Parliament. However, these three parties (along with Communist Party of India) did make their presence felt in the past five years in protest, dharnas, campaigns, offered resistance and lent their weight to civil society groups. It would have been good if CPI too had underlined the importance of civil liberties in its manifesto. However, even if few parties have taken a clear stance, this is a welcome expression of their commitment to civil liberties after a break of many decades. Especially, given past five years’ experience at the hands of BJP. How this commitment will get translated into real time application in India is the next big challenge for all of us.