Globalisation and Autocratic Legalism
The global pattern of autocratic impulse
During the Kosovo War, the NATO Forces carried out several bombing strikes in former Yugoslavia. Among the places bombed was the city of Belgrade. There was a lot of destruction and lives lost. But one site in Belgrade was not bombed – the Belgrade Zoo. But because of the bombing all around the city, the noises and the destruction, the animals in the zoo were all traumatised and scared. They started running and howling out of fear. But there was one animal that did not do any such thing – it was a Bengal tiger named Prince. So, then, what did Prince do? Well, Prince had become so traumatized by the bombings that instead of running and roaring, he had begun to eat at his own limbs – a gruesome image, if you think of it. Prince later became a metaphor for Balkanization. But today, when we look at constitutions across the world, we’re increasingly reminded of this Belgradian tiger who ate away at his own limbs in order to, perhaps, protest against the bombings and the trauma. Today what we are witnessing are constitutions – and entire nations – being traumatised in this manner (not necessarily through bombardment in all cases, but in some cases, like Gaza, it is certainly bombardment as well, among other things) and their reaction is, to my mind, same as that of Prince the Tiger.
In his recent book on Indira Gandhi, historian Srinath Raghavan calls Emergency the most traumatic event for the Indian nation after the Partition. So, today, let us first reckon the trauma of 1975, and then come to the trauma of today – the Declared Emergency and, what many call, “the Undeclared Emergency” – although that is not a phrase I prefer to use.
We all know the story of the Emergency. The Allahabad High Court had set aside the election of Mrs. Gandhi on account of a petition by her formidable opponent, Mr. Raj Narain. In order to save her chair – and to deal with the increasing dissident voices against her Rule, led most prominently by Jai Prakash Narayan or JP – Mrs. Gandhi imposed an Emergency overnight, abusing a power meant to be used only in exceptional circumstances. Even her own ministers found out only early next morning that the President had proclaimed a National Emergency at the advice of Mrs. Gandhi. We’ve all read about what went on during the dark days of Emergency – I need not repeat the incidents of curbing of civil liberties, press censorship and violation of rights. Even the courts surrendered, as it evident from the case of ADM Jabalpur v. Shivkant Shukla, which the Supreme Court itself admitted in 2018, was seriously flawed. During this time, Mrs Gandhi brought in a provision that prevented courts from setting aside election. It was later struck down as unconstitutional by the Supreme Court in Indira Gandhi v. Raj Narain. After the Emergency ended, to avoid any such further abuse of power, the Janata Party Government brought in an amendment that replaced the word “internal disturbance” with “armed rebellion” in Article 352 of the Constitution – thereby limiting the power to declare Emergency only if there is an armed rebellion or a civil war. Therefore, today, a national Emergency can no longer be proclaimed as easily as Indira Gandhi had done. But that is about a declared Emergency, what about an Undeclared One? Let me now come to the second trauma – the so-called “Undeclared Emergency”.
There is no turning away from the fact that we live in a neoliberal world, that is a world of globalization. As the UN Secretary General, Ban ki Moon said once, “the local is global and the global is local.” All commodities today have become globalized. It is no surprise then that we see today, the erosion of democratic values – a rising autocratic impulse – is not just an Indian story; it is a global story – what is happening in India today is not happening in a vacuum, it is a part of a global pattern. In the neoliberal world, everything has become globalized – including hate, misogyny, xenophobia, Islamophobia, racism in its varying forms, a tribalistic instinct to “other” our fellow nationals and reduce them to second-class citizens. What has also become global, in this neoliberal world, is a new kind of autocracy. What many choose to call an “Undeclared Emergency.” It is a global tale, unfolding not just in India but across the world.
As I’ve made clear, I don’t prefer the term ‘undeclared emergency’ – I instead prefer the phrase “autocratic legalism” coined by American sociologist Kim Lane Scheppele in a 2018 article. She defines it as follows: “When electoral mandates plus constitutional and legal change are used in the service of an illiberal agenda, this phenomenon is called autocratic legalism.” She argues that what we are witnessing a sort of legal autocracy – legal because the constitutional subversion is more subtle, more legally tenable. It’s a murder of the spirit, but the body lives. It is, if I may so, rendering the constitution braindead.
In her article, Lane Scheppele asks a question – how does one identify such a leader and whether autocratic legalism is in vogue in a particular country? Over the course of the article, she explores some common themes:
A populist charismatic leader is first – we know that is true in our case. It was true when Indira Gandhi was the leader, it is also true today.
The leader promises reforms – and hints that he is not willing to play by the old rules.
There is a rise in intolerant majoritarianism within the country.
There are concerted and sustained attacks on institutions whose job it is to keep the leader in check and hold him accountable – institutions like the Judiciary, the Media, the Election Commission, the Opposition.
Loosening the bonds of constitutional constraints on the Executive is often the first sign of autocratic legalism.
These leaders don’t get rid of the language of constitutionalism and democracy – they don’t call for overt subversion of constitutions or democratic principles – they retain the language, but not a commitment to the constitutional values.
They don’t destroy institutions, but they reform them. The weapons of these new autocrats are laws, constitutional revisions and institutional reforms.
There is some sort of direct or indirect control over the media – and I don’t have to say out loud “NDTV” for you to understand what I’m hinting at.
Any dissident or formidable opposition leader is bound to wind up in legal trouble, often going to jail.
The leaders often have no respect for minorities, pluralism or tolerance. I again don’t have to cite any examples from the United States or from closer home to demonstrate the truth of this.
They blame established political parties for long-standing systematic problems.
Now, to an Indian reader, this may seem like a recounting of the present government in India. But Scheppele does not mention India – or any Indian leader – even once in her article. Instead, she looks at examples of Putin in Russia, Victor Orban in Hungary, Hugo Chavez in Venezuela, and Erdogan in Turkey. These are the modern day autocrats that have masterfully subverted democracy and constitutionalism in their countries. They have a common playbook – that is why the title of this essay, we are witnessing a globalisation of autocracy like never before.
In the postcolonial world, most countries adopted an almost identical constitutional design – the liberal democratic constitution. It combines liberalism with democracy and constitutionalism. This same template is followed across the world, with some exceptions and modifications. Therefore, is it any surprise that the means and methods of subverting that template are also common across the world? I mean, there are only so many ways in which you can subvert a constitution legally – so is it any surprise that the toolkit these autocrats use have the same tools?
What I’m saying is that what we’re witnessing today in India is not a disease in itself. These are symptoms of a much larger disease that has taken hold of the entire world, and these symptoms are showing up identically in different organs (read countries) of the body (read the World). We can only take comfort in hoping that we are the White Blood Cells of Democracy, and at least in this part of the body and it is our duty to combat this disease, as we hope our counterparts in other parts will do.
As Kim Lane Scheppele says in her article on autocratic legalism:
“Liberal and democratic constitutionalism is worth defending, but first we need to stop taking for granted that constitutions can defend themselves.”
[This essay was originally written for a speech in an event organised by the Centre for Protection of Democratic Rights and Secularism in Ahmedabad to mark 50 Years of Emergency.]