In this post, I am going to discuss how a certain brand of nationalism which I would call perverted nationalism is used to corrupt understandings of terrorism and insurgency in our legal system, which ultimately leads to a gross violation of the Rule of Law. I start with a brief discussion on how the Constitution envisions law, and continue to how existence of this law is then diluted by invocations of nationalist zeal, leading to enactment of repressive laws, which only manage to harden the foundation on which terrorism stands.

What constitutes law? | The Constitutional Mandate

Article 21 very clearly lays down that no person is to be deprived of his life or personal liberty without a procedure established by law. The key question here being, what constitutes law, which was conclusively laid down in Maneka Gandhi v. Union of India as law is that which is just, fair and reasonable. Which implies that merely because a statute is enacted by a Parliament or Legislature following the requisite procedure doesn’t make it law. Any such legal provision can be questioned on account of justice, fairness and reasonableness and can be declared to be NOT LAW. This is not just a matter of competence of who enacts the legal provision, the content of the provision also matters to decide whether it is a law or not.

This means that courts have to evaluate any legal provision which is challenged before them on whether it satisfies the just, fair reasonable rule, including all laws which are used to prosecute terrorists and insurgents.. Which means that the State cannot break the law to uphold the law. State cannot bypass the just, fair, reasonable requirement for alleged terrorists to say that it is upholding just, fair, reasonable for other people-that’s a Rule of Law basic. And it is important, because if different standards are applied to take away life and liberty, you never know when you will be alleged as a terrorist, and your life and liberty taken away without following a just, reasonable and fair procedure.

Forget the Constitution, Enter Perverted Nationalism

By perverted nationalism I mean a crazy nationalist fervor which blinds us to the realities from which terrorism stems. Terrorism is not the mindless violence the State portrays it to be. Any casual observer would also notice that the unequivocal facts about these terrorists are that they are all people from areas wherein stagnation and poverty prevails, and are often dealing with survival issues on a daily basis. A careful analysis of their “demands” illustrates is that they all ask for a better life, where they are not treated like scum. But wait, and here comes the twist in the story…The State says it’s all a plot to undermine the “sovereignty and integrity” of India by some “foreign enemies.” That terrorism is a global menace, a mindless violence to tumble democratic governments, and India as one such democracy has to fight against it. [democracy btw, only because they are elected by a passive election process every five years- not as if they actually listen to the people’s problems.] The allegation by the government is that terrorism is an attack on national integrity and development- other countries hate us and want to see our downfall, and we can’t let the enmities perpetuated by these external powers to break us.

So, we will enact some laws totally violating all procedural protections- forget just, fair and reasonable- that’s for “normal” people, people who are not terrorists- thus excluding them even more from the ambit of our Constitution, all the while forgetting that terrorism emerges in the first place BECAUSE of the exclusion of these people from the Constitution. But Naxalism becomes an influence propelled by China, along with disturbances in the north-east and terrorism in Kashmir is Pakistan’s mischief-all part of a well-constructed nationalist paranoia. And even if that’s true, the question to ask is why our citizens are so ready to raise arms against the Indian State with just a little foreign persuasion? What do they find so oppressive and demeaning in our system that they resort to the use of violence, which is something any person would refrain from at the first go. We forget that most of these terrorist activities emerge from land and developmental issues- and the Fundamental Rights of these terrorists even before they had to resort to violence so that the State would at least listen to them were being constantly violated. Right to a dignified life, you say? But these issues are never addressed.

Amazingly, the Supreme Court which is supposed to the guardian of our Constitution and uphold law has not refrained from using this perverted nationalism to destroy all illusion of law. The use of this perverted nationalism argument is well-evident in Kartar Singh v. State of Punjab [para 25], which shamelessly constitutionalises TADA. It is a judgment which still exercises the power of its shadow over the constitutionality of Unlawful Activities Prevention Act, under which PUCL members Binayak Sen and Ajay TG were detained fro long periods. The court uses the argument that it can consider matters of “common knowledge” in its decision, to conclusively hammer the perverted nationalism saga into the terrorist narrative. [paras 31- 35] And this argument is then used to blind the Constitutional requirement of just, fair reasonable, in order to do anything to kill these “enemies of the State”, which btw, are our own people.

Order trumps law

When perverted nationalism is built into the interpretation of legal provisions, order triumphs over law. The defence, sovereignty and integrity of India is reduced to mere protection of its territorial boundaries rather than defence of the values of justice, liberty and equality which make up the nation. Order becomes more important than law, and law can be broken to maintain order. Which implies that legal provisions no longer need to be just, fair and reasonable. When judgments like Nandini Sundar v. State of Chhatisgarh are pronounced, they are accused of judicial activism and violation of Article 50, because they harp on the Constitutional principle that the government cannot break the law to uphold the law. This is the reality of India today and it cannot be changed until we, as the people of India, and our legal machinery understands what it means to actually have a Constitution and Rule of law and tone down its drumbeat of foreign meddling to bring down India, and actually concentrate on the socio-economic deprivation of its own people.

Like Arundhati Roy says, “The Indian state, you know what its greatest art is—it’s not killing people—that’s its second greatest art, the first greatest art is to wait, to wait and wait and wait and hope that everybody’s energies will just go down.” This waiting and doing nothing about problems must be changed. More importantly to effectively tackle terrorism, we and our Courts must consistently recognize that terrorism and insurgency emerge when the government waits and passively deprives people of their Fundamental Rights.