There can be no question that the presidential order of November 16 falls in the category of black laws which do no credit to any genuine and functioning democracy. For, the suspension of the fundamental rights guaranteed by the Constitution cannot be justified at all except in an emergency created specifically by an external invasion or an imminent threat of it.
This view is contrary to the widely accepted argument that economic offences constitute as serious a threat to the security of the country as an external aggression or insurrection and therefore deserve to be dealt with on the same basis. But that does not mean that one should fight shy of stating it. On the contrary, it has to be asserted all the more strongly precisely because over the years too many people have come to accept without serious thought the erosion of the very concept of the rule of law.
The comparison between economic offences and external aggression, it needs to be emphasised, is wrong not because the former do not endanger the well-being of the people but because they are essentially the product of arbitrary laws, of bad policies and, above all, of acquiescence, connivance and even participation by those in power. As such a government can have no moral right to resort to extraordinary laws to cover up either its own failures or the misdeeds of its personnel and political supporters.
Movements
Indeed, even violent movements like the one by the CPI in Telengana in 1948-50 and by the Naxalites in West Bengal in 1970 cannot justly be treated on a par with an external attack despite the limited moral and material support they may receive from abroad. Like economic offences, these, too, are basically the result of failure of authority to redress the just and acute grievances of the people. The revolt in Telengana, for instance, was provoked by the inhuman land laws and the sad slight of millions of landless tillers. Similarly, the rise and spread of Naxalism in West Bengal can be explained in terms of the failure of the government to rehabilitate millions of refugees from East Bengal, provide job opportunities for even highly talented students and create an atmosphere of hope in which youthful idealism and energy could flow into constructive channels.
In the present case the failure of the government to perform its normal tasks is patent. Its policy of increasing the supply of money without a simultaneous rise in production created ideal conditions for smuggling. Almost wilfully the government created purchasing power which it could not satisfy. This aggravated the problem which was already acute on account of the lax implementation of taxation laws.
The government also allowed a free hand to the smugglers so much so that it failed not only to catch them and prosecute them but also to collect enough evidence against them so that when it finally decided to apply the Maintenance of Internal Security Act against them, it was unable to provide credible grounds which any court of law worth the name could accept as legitimate and bona fide. The charges against those who have been released by various courts were dated by two years and more. Surely then the same government cannot now justly claim the right to suspend the fundamental rights and expect the people to accept its competence as well as its bona fides.
As it stands, the presidential order of November 16 covers only persons detained under the MISA as amended by Ordinance 11 of September 17, 1974. Since under the amended MISA, only 579 persons have been arrested so far and since most of them, if not all of them, have in fact been engaged in smuggling and diversion of foreign exchange in one form or another, the government can claim with some semblance of credibility that it has not abused the Act and that it has no intention to abuse the presidential order. But that cannot be considered an adequate guarantee.
Liberty
To a large extent, the liberty of citizens inevitably depends on the good sense of the executive authority even in older and more well-established democracies than India. The removal of constitutional restraints like the right of judicial review has tended to make the executive whimsical and arbitrary all over the world. India is not and cannot be an exception.
The apprehension expressed by opposition parties cannot therefore be disregarded. This is reinforced by the fact that the MISA has been misused not only by state governments to arrest opponents whose actions cannot be said to constitute a threat to internal security but also by junior officials who should never have been authorised to apply this extraordinary law. The classical case is that of the teenage canteen employee who was arrested under the MISA because he insisted that a policeman pay his bills which had accumulated for a month. This would never have come to light if the boy had not had the imagination to send a letter to the Supreme Court and if it had not come to the attention of some conscientious individual in the court. In the event, the Supreme Court initiated proceedings on its own and secured the boy’s release. But how many other cases must there be of gross injustice under the MISA?
The arrests of 579 alleged smugglers and foreign exchange racketeers under the MISA as amended by the ordinance of last September and the release of 20 of them by various courts for want of reasonable grounds of detention have tended to create the impression in the popular mind that the Act is being applied to only these offences. In fact this is not so. The MISA has been widely used to arrest and detain without trial thousands of individuals. Unfortunately, this has not attracted sufficiently trenchant criticism. Indeed, most people have turned a blind eye to this reality because it has adversely affected the Naxalites and those who have been so branded by the guardians of law and order. But be that as it may, one extraordinary law and its misuse cannot justify the suspension of the fundamental rights for dealing with another group of individuals.
It is self-evident that until the upheaval this year first in Gujarat and then in Bihar, the Congress governments at the Centre and in the states were too well entrenched to need heed criticism of their actions, however arbitrary. Even so, the fact remains that individuals and parties of the right and the centre virtually ignored the unlawful treatment meted out to the Naxalites, the so-called Naxalites, members and supporters of the CPM and even their relations in West Bengal. They did not realise that they were acquiescing in illegal actions and concentration of power in the executive at all levels and that this would rebound on them. The CPI is making the same kind of mistake now. It is ready to support the harshest executive action against traders and farmers in disregard of the possibility that the same weapon may one day be turned against it.
The CPI is, of course, not alone in taking the view that in a society like ours it is necessary for the executive to arm itself with extraordinary powers and in certain situations even suspend the fundamental rights in order to deal effectively with anti-social elements and practices in the interest of the larger community. This attitude is widely shared by the intelligentsia. But is the implicit confidence in the intentions and competence of the executive justified?
Knowledge
It is common knowledge that anti-untouchability and tenancy laws have not been implemented not because the state governments have not had the necessary powers but because the political will and the administrative machinery have been lacking. After a great deal of debate Parliament approved almost three years ago the 25th amendment to the Constitution giving the government extensive powers to acquire property for public purposes without having to pay proper compensation with the specific objective of reducing economic disparities. But can anyone say in all conscience that the law has been put to good purpose? It has only facilitated ill-considered, hasty and doctrinaire decisions like the takeover of coal mines leading to a loss in production and rise in prices. The amendment of the Income-Tax Act authorising the government to acquire undervalued properties has suffered a similar fate. In Delhi at least it has been used to harass thousands of middle class persons who had agreed to buy plots of land in a colony in the late ’fifties at the then prevailing price.
These examples should suffice to prove that the government has asked for extraordinary powers because it has not used, deliberately or otherwise, the normal laws of the land effectively. This is not surprising because non-use and abuse of authority are two faces of the same coin; neither augurs well for the country and the state.
The Times of India, 20 November 1975