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ON CIVIL LIBERTIES AND SOCIETY IN INDIA
by Prasenjit Maiti, Burdwan University

8:00 a.m. January 15, 2001 PDT

The expansion of India's civil society has caused Indians to be less certain of the State's powers of transformation and more confident of the power of the individual and local community.



PART XVIII of India's Constitution allows the state to suspend civil liberties and exercise certain federal norms during a Presidential Proclamation of Emergency. The Constitution provides for the following emergencies: a threat by "war or external aggression" or by "internal disturbances," a "failure of constitutional machinery" within the country or within a component state, and a threat to the financial security of the nation or a part thereof. Under the first two emergency situations, fundamental rights—with the exception of protection of life and personal liberty—may be suspended, along with other federal norms. However, any Proclamation of Emergency automatically lapses after a couple of months if not approved by both Houses of the Union Parliament.

The President can even dismiss a state government if it can be ascertained upon receipt of a report from the state Governor that the constitutional machinery has broken down. This is also known as the President's Rule, as the President of India can assume any or all functions of the state government, transfer the powers of the state Legislative Assembly to the Parliament or adopt other measures necessary, such as suspension, in whole or in part, of the Constitution and its federal norms. However, President's Rule cannot interfere with the State's High Court in the exercise of its authority. Once approved, President's Rule ordinarily continues for six months, but may be extended up to one year with Parliament ratification. In exceptional cases, such as insurgency seen in Jammu and Kashmir during the early and mid-1990s, President's Rule has continued for more than five years.

President's Rule was invoked ten times during the tenure of Prime Ministers Jawaharlal Nehru and Lal Bahadur Shastri, from 1947 to 1966. Under Indira Gandhi's (daughter of Nehru) two stints as Prime Minister (1966-77 and 1980-84), President's Rule was invoked forty-one times. Despite Indira Gandhi's frequent use of President's Rule, she was in power longer (187 months) than any other Indian Prime Minister, apart from Nehru (201 months). Other Prime Ministers have also frequently taken recourse to this authoritarian and anti-federal measure: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap Singh (two times in eleven months), Chandra Shekhar (four times in seven months) and P.V. Narasimha Rao (nine times in his first forty-two months in office).

A State of Emergency has been proclaimed three times since India's Independence (1947): the first in 1962 during the Chinese Aggression; a second declared in 1971 during the Bangladesh War. The next Proclamation of Emergency was imposed in 1975 to stem political opposition to Indira Gandhi.

Thus, constitutional provisions for a Proclamation of Emergency and President's Rule underpin India's authoritarian powers. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the Proclamation of Emergency in 1962, the government passed the Defense of India Act. This law provided for the Defense of India Rules that allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defense of India Rules were again imposed during the Bangladesh War. They remained in place following the end of the war and were invoked for arrests made during a nationwide railroad strike in 1974, among other instances.

The Maintenance of Internal Security Act (1971) also provides for preventive detention. This was revamped during the 1975-77 Proclamation of Emergency to allow the government to arrest individuals without declaring charges. Tens of thousands of opposition politicians were arrested under the Defense of India Rules and the MISA, including leaders of the future Janata Party government. Soon after the Janata government came into power in 1977, Parliament passed the Forty-fourth Amendment that revised the domestic circumstances cited in Article 352 from "internal disturbance" to "armed rebellion." Parliament also repealed the Defense of India Rules and the MISA. However, after Congress (Indira) returned to power in 1980, Parliament passed the National Security Act authorizing security forces to arrest individuals without warrant for suspicion of action that subverts national security, public order and essential economic services. The Essential Services Maintenance Act of 1981 allows the government to ban strikes and lockouts in sixteen economic sectors that provide critical goods and services. The Fifty-ninth Amendment (1988) restored "internal disturbance" in place of "armed rebellion" as a just cause for any Proclamation of Emergency.

The Khalistan Movement of Punjab during the 1980s provoked additional authoritarian laws. In 1984, Parliament passed the National Security Amendment Act that allows security forces to detain prisoners for up to one year. The 1984 Terrorist Affected Areas (Special Courts) Ordinance arranged for security forces in Punjab with unprecedented powers of detention, and permitted secret tribunals to try suspected terrorists. The 1985 Terrorist and Disruptive Activities (Prevention) Act provided for capital punishment and empowered authorities to tap telephones, censor mail and conduct raids when individuals are alleged to pose a threat to the unity and sovereignty of the nation. The law renewing the TADA in 1987 provided for in-camera trials, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to any terrorist act. In March 1988, the Fifty-ninth Amendment raised the period that a Proclamation of Emergency can be in effect without legislative approval from six months to three years, and did away with the assurance of due process of law and protection of life and liberty with regard to Punjab (Articles 20 and 21). Subsequently, the Sixty-third Amendment restored these rights in 1989.

. . . . . . . . . .

Political participation in India has been transformed in many ways since the 1960s. New social groups have entered the political arena and begun to use their political resources to reshape the political process. Scheduled Castes and Scheduled Tribes, earlier excluded from politics because of their position at the bottom of India's social hierarchy, have begun to take advantage of the opportunities presented by India's democracy. Women and environmentalists constitute new political categories while the spread of social movements and voluntary organizations has shown that despite the difficulties of India's political parties and state institutions, the country's federal democracy continues to prosper.

An important aspect of this rise of civil society is the expansion of nongovernmental organizations. To an extent, this has been sponsored by the Indian State. For instance, central government's Seventh Five-Year Plan (1985-89) recognized the contribution of NGOs in facilitating development and consequently substantially raised their funding. The 1987 survey of 1273 NGOs found that 47 percent received funding from the central government. NGOs have also received overseas donations. Certain NGOs even cooperate with the central government to implement public policies, such as poverty alleviation in a decentralized manner. Other NGOs like the Association for Protection of Democratic Rights or the People's Union for Civil Liberties act as watchdogs of India's civil society. NGOs also try to enhance the political awareness of different social groups, encouraging them to demand their rights and resist social injustice.

Beginning in the 1970s, activists began to form broad-based social movements that championed social interests so long neglected by the state and political parties. A case in point: the farmers' movement that organized hundreds of thousands of demonstrators in the National Capital Territory of New Delhi, demanding higher prices on agricultural commodities and more investment in rural areas. Members of Scheduled Castes led by the Dalit Panthers have reasserted the identity of former Untouchables. Women now interact and exchange ideas in order to define and promote women's issues. Environmental activism, such as the Narmada Bachao Andolan (Save the River Narmada Movement), has also emerged, compelling the government to be more responsive to environmental issues and redefining the problematics of development, displacement and democracy through the accommodation of indigenous cultures and sustainable development.

With its competitive elections, relatively independent judiciary, media watch and civil society, India continues as a democratic federal system. Still, India's democracy is under stress. Political power within the Indian state has become centralized at a time when India's civil society has become mobilized along the country's multicultural axes. India's political parties are also in crisis. The Indian National Congress has been in a state of decline. The ruling Bharatiya Janata Party, although it has a stronger party organization, is yet to transcend the limits of its Hindu nationalist agenda and formulate a program that would appeal to India's plural society. The Janata Dal continues to suffer from lack of leadership and factional warfare.

Thus the expansion of India's civil society has made Indians less certain of the federal state's powers of transformation and more confident of the power of the individual and local community. This development has shifted a larger share of the initiative for resolving India's social problems from the state to the civil society. Fashioning party and state institutions that would accommodate the multiple interests that are now being mobilized in Indian society is the major challenge confronting Indian federal polity in the new millennium.

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Prasenjit Maiti is a Senior Lecturer in Political Science at Burdwan University, India and formerly served as a research associate at the Institute of Federalism, University of Fribourg, Switzerland.

Article copyright © Prasenjit Maiti; all rights reserved
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| u s e n e tg r o u p s |

alt.activism

alt.politics

alt.security.terrorism

alt.society.civil-liberty

alt.society.civil-liberties

misc.activism.progressive

soc.culture.indian

| w e b s i t e s |

Centre for Civil Society: India

India: A Country Study (Library of Congress, Federal Research Division)

United Nations Development Program: India (Parnerships to Fight Poverty)

Ethnic Conflict and Civil Society: India and Beyond (Woodrow Wilson School of Public and International Affairs, Princeton University)

Civil Society And Governance: An Overview Of Issues And Trends In India (publication of Institute of Development Studies)

American Civil Liberties Union

Office of the Attorney General, John Ashcroft (US DoJ)

US Immigration & Naturalization Service (USINS INS)

Harvard Civil Rights-Civil Liberties Law Review

FedLaw: Civil Liberties, Civil Rights, Equal Opportunity & Discrimination (US Gen'l Services Admin)

The Civil Liberties Act of 1988 (US DoJ)

Terrorism Law & Policy (University of Pittsburgh School of Law)

A Look at Civil Liberties (CNN)

War Is Hell (On Your Civil Liberties) (Time.com)

Bush Team Seeks Broader Surveillance Powers (Washington Post)

(*see our resource directory for add'l resources)


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