The enemy within is, on the one hand, a manufactured enemy, i.e., he is not really an enemy, but it suits the powers that be to label him as one. This can be a Muslim, Hindu, Christian, Dalit, student, an activist, an NGO, a doctor, a lawyer, a judge, anyone who does not toe the ideological line of the physically dominant majority.
The other is the de facto enemy, the one who stands against the Constitution and the Law. This de facto enemy can be an official, a State or Central Minister of any rank, a party leader, a Governor, a Muslim, Hindu, Christian, Dalit, student, an activist, an NGO, a doctor, lawyer, anyone who seeks to destroy the nation the framers of the Constitution desired India to evolve into, who works to destroy the democratic institutions assiduously built by past generations, pretends to be in sync with noble ideas but, discriminating between us and them, represents the supremacist thought-process that restricts others, confines them, denudes them of rights, depletes them, objectivises them.
The Supreme Court has often said the approach of the State towards the citizen must be one of protection of the citizen’s rights, not usurpation of those. However, we see forest lands parcelled out to corporate profit-making entities at great social, political, psychological, and economic cost to the inhabitants who lived on the land. Resist, and risk being labelled a Maoist, Urban Naxal, whatever. Legislation is sought to be foisted to redefine citizenship, pushing certain segments of society into statelessness. Resist, and risk “goli maaro saalon ko” aggression, State repression, detention, and denial of bail.
Patriotic citizen
Can patriotic citizens mystically morph into manufactured enemies? Yes! Partition saw the emigration of innumerable Muslims to Pakistan (and Hindus to India), leaving property behind. Property in India of émigrés to Pakistan became enemy property under laws (Evacuee Property Act, Enemy Property Act), which said that if an émigré’s successors remained Indian citizens, the property would on the demise of the Pakistani émigré, vest back in them and they could claim it. Logical, because then it was again an Indian’s property, no longer property of an “enemy”.
They did claim, successfully, until the Raja of Mahmudabad case, which, though a citizen’s claim, was denied by the State. The Supreme Court upheld the citizen’s claim. The State then (2017) amended the law to say in all such cases, it shall be deemed (retrospectively) that no such devolution ever took place.
Enemy property
One amendment, and countless Muslims who remained loyal Indian citizens, stood divested of invaluable property rights, saw ancestral property categorised as “enemy property”, vesting it in the State they expected would protect their rights. Suddenly, property of Indians loyal to their country was, in the eyes of the State, property of a legislatively manufactured, fabricated “enemy”.
The adage is “Be you ever so high, the law is above you.” The Directive Principles of State Policy (DPSPs) in the Constitution require that the duty of the State should be infused into all laws made and into the functioning of all organs of government. However, overturning the doctrines of legitimate expectation and promissory estoppel, what the State did to circumvent the Supreme Court’s verdict is to legislate and, by such legislation, manufacture an artificial enemy, to access his property. Was this legislation camouflaged Parliamentary overreach to circumnavigate binding adjudication?
That we cannot say, but it illustrates something dangerous: that legislation need not be citizen-friendly or citizen-protective. It can be destructive of citizen rights. Just because legislators or parliamentarians are elected, that does not necessarily clothe them with good intent. Each can be guided by an agenda, personal or of party affiliation. The agenda of the BJP is no secret: it has announced it from the rooftops. It wants to shape India after its desired contours, as of course any party elected would want to. Only if such reshaping violates DPSPs, falls foul of the Constitution, its legitimacy would be questionable. It follows, therefore, that it is at least a possibility that legislation can be crafted not with laudable constitutionally valid objectives in mind, but with an intent of reshaping the country in the desired contours, disregarding constitutional provisions and violating enshrined guarantees and safeguards.
Constitution is flexible
The Constitution does not have provisions in straight-jacket confines, but is advisedly flexible, keeping open the possibility of evolving by interpretative expansion of citizen rights, not to be abused by restrictive legislation eroding, if not altogether destroying, those. Legislation would need to be tested against Constitutional provisions to ascertain whether it falls foul of the Constitution or DPSPs, or violates Constitutional guarantees provided to those likely to be impacted, to determine whether a law should be upheld.
In any civilized system of jurisprudence, this role is exclusively performed by judges of the constitutional courts, who must remain free from the pressure of innuendo, insinuations, and collateral attack in discharging their solemn constitutional trust. MPs have not been far behind the Governors in name-calling. One MP alleged a CEC was a “Muslim Commissioner” and not an Election Commissioner: an allegation to be rubbished, but made brazenly, after he had first accused a Chief Justice of causing civil strife and worse, both accusations made with no sense of remorse.
Snide remarks against VP
Remember when the Prime Minister made snide remarks against Vice President Hamid Ansari? These people learn from and feed off each other. Certain deeply regrettable traits have become the new normal, acquired Standard Operating Procedure status. You don’t like something, go into abuse mode. Let loose foot-soldiers against the targets and, while they rally together to attack the victim, which they (referring to themselves as “disciplined soldiers of the party”) would never dare do without “high command” and “ideological mooring” backing, the high command takes recourse to plausible deniability: “his personal views”, “we do not agree”, “not the party position”, etc. Targeted judges, however, have no defenders.
When judges rule against the view held by members of legislative bodies, these elected representatives sometimes lash out in impotent rage, attacking the judges rather than the process of reasoning by which the decision was arrived at. It was clear that the political dispensation presently in place was greatly upset when the Supreme Court asked uncomfortable questions which compelled the state to assure that it would keep on hold certain provisions of the Waqf Amendment (wondrously labelled UMEED Act) which had caused a justifiable uproar in civil society, particularly among the Muslim community. Another judgment of the Supreme Court in the matter of the exercise of powers of Governors to sit on Bills sent back for approval by the State Cabinet and stultify elected legislative bodies’ working was regulated by setting a 60-day deadline, thereby disabling indefinite intentional gubernatorial stalling of State-desired legislation by deliberate inaction.
Various allegations stood levelled at judges, by persons claiming status of “disciplined soldiers of the Party”, all without substance, all unequivocally condemning “judicial overreach” ignoring the very real possibility of a Governor as agent of the Centre acting in derogation of his duties and preventing a State Cabinet from executing its agenda which, being a different political party than at the Centre, could often be at variance with what the Centre desired or, in other words, becoming a roadblock for the State. Antagonists called it “government by judiciary”. A Vice President waded in with his firepower. The country saw the spectacle of one Constitutional authority sparring with another.
To be continued
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