Rule of Law is the basis of every free and civilised society. One of the major theses of this doctrine is the recognition of right to life and personal liberty as “inheres in the body of every living person.” It has, thus, been confirmed by the popular scholarship on the Indian Constitution that Article 21 does not, in fact, “confer” but confirms this inalienable right. Even in the absence of this Fundamental Right, the State could not forego the basic sanctity of life and personal liberty. This doctrine subverts the idea of State having the power to suspend the Right to Life and Personal Liberty on occasions of emergency. In the light of this realisation, where do we place Emergency laws that seem to self-sustain the State’s right to overlook the basic fundamental rights of a given population just because they do not toe the line of “neo-liberals”; that overstep the line of “discretionary powers,” and largely qualify arbitrariness?
Arguably, the roots of such extension of power to the State to label any area as “disturbed” lies largely in the economic reforms that took place in 1991 in India. The reforms which came with the basic aims of Liberalization, Globalization and Privatization; have over-all been bitter sweet per se, in the past 25 years. We’ve had better opportunities clubbed with the internal tension of domestic players, better relations with the outside world along with the poor brethren struggling to make ends meet back home. We have had competitive individuals among us working for surplus accumulation, along with “development dissenters” and “seccessionists” in the heart land of our own country fighting for the most basic rights to life and personal liberty. We have seen improvements in international trade, Balance of Payments, skill and expertise of domestic traders, etc. However, the tricky part here is that, “Though the eventual and ideal objective of liberalisation is to reduce the state’s role in economic life, ironically, it is only the state which can reduce the functions of the state.”This fosters the idea that, “the neo-liberal subject cannot be taken as given. Instead, the subject’s mental landscape and consciousness has to be reshaped to secure and procreate the altered economic structure and mode of governance being put in place by reforms.”. For this, whoever disagrees with the “neo-liberal” narrative is casually labelled as an “anti-development maniac” who has neither the will nor the calibre to participate in the competitive global market. And hence, “The palpable violence against the world of the third is projected as necessary for initiating long-run liberation of the embedded subjects from their own “backward” structures that hold them down. Because the Dalits and particularly Adivasis reside in these areas, they have been subjected to the process of land alienation, dislocations, forced evictions, and displacements. However, what appears as progressive from the perspective of global capital (or the third world) may appear as unjust violence and plunder from the perspective of world of the third, which in turn can and did produce countrywide resistance; the last 25 years have been witness to such resistances and the effort of state–capital nexus to manage and navigate this process.” .This supposed “necessity” to commit excesses against the “third World”, in order to make them submit to the system, legitimizes laws that confer indiscriminate powers that overlook the basic tenets of constitutionalism. Emergency laws like AFSPA find a place in our legal system owing to this holier-than-thou approach. The internal tension has only increased.
Keeping all the good that these reforms have brought about, this aspect of subtly expanding the power of the State’s autonomy does not go well in constitutional democracies. States of Jammu and Kashmir and that of the North-East bear testimony to the fact that the experiences of people under such arbitrary laws are completely disregarded and institutionalised crimes have managed to put their life and personal liberty at stake. Furthermore, the substructure of economic crises in families due to illegal detentions, killings and disappearances; and the superstructure of military expenditure by the State on such wars in the name of ‘defence’; has eventually led to disparity in the overall economic structure of India.