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In the early days of the lockdown, when COVID-19 cases began to rise, we witnessed a second virus spreading equally rapidly in the country — the virus of communalism. But there is a third virus around which is less spoken about; a virus eating into and severely corroding our democratic structure — the virus of arbitrary power. There is no better evidence of this than the denial of bail to a pregnant student-activist, arrested for creating disorder on an ‘unprecedented scale’ when all she appeared to have done was actively participate, like many others, in a protest against the Citizenship (Amendment) Act, 2019, proposed by the government.
Tyranny and slavery
This arbitrary use of power, implied by the absence or selective use of law, is deeply troublesome. More so, when exercised by a democratically elected government. Frequent arbitrariness in the political domain leads to tyranny, quite like when persistently present in the social sphere, it leads to slavery. Either way, it tramples upon basic freedoms. But what, one might ask, is the connection between arbitrariness and the loss of freedoms?
Individuals, communities or citizens cannot function freely without a stable set of expectations. By stabilising expectations, laws enable significant freedoms, even as they restrict some others. To take just one example, once it is widely known that I am legally restricted to driving only on the left, I drive with greater freedom, knowing that headlong collision is unlikely. I regulate the speed of travel and calculate the time to get from home to office. This helps me schedule my work for the day and coordinate with others who likewise make their own schedules. By jointly accomplishing our goals, we enhance our freedom. Laws enable our actions and interactions to become broadly predictable. Many of our freedoms require that the arbitrary, by which is meant ‘unpredictable, random or unexpected’ does not throw us off balance. The arbitrary blocks freedom.
However, an even more basic feature of arbitrariness, one that produces much greater harm, is to be at the mercy of the whim or fancy of someone else, especially the powerful. Return to the traffic example. Suppose that two vehicles stop at the traffic light but just beyond the zebra crossing. The policeman, embodying the entire might of the state, issues a ticket or a challan to one but not the other. Worse, instead of fining the violators, he seizes the driving licence of a careful driver, who has stopped a good metre behind the crossing, merely because he dislikes the make of his car. Surely, this arbitrary implementation of the law is grossly unjust. This shows that the minutest aspect of daily life — travelling to work — can be dependent upon the arbitrary opinion of someone else. When power is exercised arbitrarily by the state, a person is made to act not in accordance with a legitimate, general rule but at the pleasure of state officials. The most extreme example of this is political enslavement, when an entire people are colonised, subjected to the will of the colonisers, where laws, good or bad, flow from the like and dislike of colonial masters.
This is equally true of the arbitrary exercise of social power, for instance under social slavery. A slave must comply with any, just any whimsical order of his master. Since the master owns him, the master is legally permitted to do just about anything with the slave. The slave breathes at his pleasure, sits or stands at his pleasure, eats, works, sleeps at his pleasure. Slaves can be awakened and asked to work in the field at an unearthly hour of the night, if the master so desires. They are never sure of what to expect from the master. One moment, objects of affection or charity, at the very next, they are treated with utter disdain, sold, even killed. After all, the master can dispose of his property at will. Such arbitrary power was routinely exercised by the patriarch in the family and continues even today. Likewise, unbridled capitalism is marked by an absence of laws to regulate labour; workers can be hired or fired at the will of the employer and no fixed hours of work exist. Unregulated wage-labour works pretty much like slavery. Are not domestic workers still treated in many homes like slaves?
The Emergency and now
These examples strengthen my point about an inverse relation between arbitrary political power and freedom. In dictatorships, entire populations are subject to the whim of the supreme leader or a tiny elite. Who did not fear the midnight knock in the regimes of Hitler and Stalin? While the devastation they caused is well chronicled, smaller tyrannies abound in our world too. Even democracies contain authoritarian spaces within them where the law can be used to continuously harass opponents. Anyone who has lived through the Emergency knows that Opposition leaders were thrown in jail on the false charge of conspiring against the state and thereafter a small crack unit began to arbitrarily control the activity of anyone politically significant. Surely that experience should have sufficed to make all of us realise the supreme value of freedom from arbitrary rule. However, with the number of first information reports (FIRs) being filed at the behest of random persons, on unsubstantiated complaints and little explanation, largely uncontested by a tired, silent political Opposition, one begins to wonder if we are headed in that awful direction once again.
Upending rights
Consider the arrest of activists. Article 21 of the Constitution gives every citizen the right of basic liberty and security. No one can be deprived of liberty, held without properly following procedures prescribed by law. Article 22 requires that anyone arrested and detained must be informed of the ground for such an arrest and must be brought before a competent legal authority within a prescribed time frame. Legal scholars have rightly pointed out that the best interpretation of this Article requires that the grounds of arrest and detention must be reasonable. The grounds of preventive detention, to be used in very rare cases, must likewise assume that the suspicion of offence is well-grounded, based on available evidence, on relevant information that satisfies any objective observer, and not on mischievous allegations. But reality seems to confirm what every other Indian movie has shown about police acting on the caprice of a ruling leader, and the law being used to harass citizens. Is suspicion always supported by available facts? Is the ‘offender’ really a threat to internal security, or merely present at the scene of the ‘crime’? Whatever the facts of the case, was the offence committed by a pregnant student-activist so grave that bail could not be granted until yesterday, on her 4th attempt? If ordinary persons could smell arbitrariness here, why could not the sessions judge? Anyhow, why fill our coronavirus-infested jails with what are largely political prisoners, when other countries are releasing even non-political inmates? Minimum lock-up during lockdown should be the political slogan in our catastrophic times.
Arbitrary curtailment of liberty existed under previous State and central governments. This is deplorable. Yet, what is worrisome today is its frequency and brazen partisanship. We should remind ourselves that participants in the anti-corruption movement of 2011-12 were not thrown in jail. Nor was the media muzzled when it went after the central government of the day, Why are political activists and journalists charge sheeted today for simply doing their job?
The Emergency, whose anniversary falls tomorrow, was meant to be a watershed in the life of Indian democracy, a brief, critical phase when the Indian political system could have gone either the way of authoritarian rule or mature as a democracy. By restoring faith in democracy, India appeared to have passed one of its crucial tests and firmly taken the second route. But are we on the verge of giving up the gains from that chastening experience? Has the struggle against the suspension of democracy been in vain? Have a small section of its victims now become perpetrators?
Rajeev Bhargava is Professor, Centre for the Study of Developing Societies (CSDS), Delhi
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