The Residual Sovereign: Placing the Right to Resistance in India’s Constitutional Order 

The vortex of changes that India currently is undergoing renders it sine qua non to mention that Right to Resistance has to be distinguished from extreme labels of rebellion or violent insurrection principally on afortiori reason that right to resistance is merely a subset of right to protest which Indian courts duly recognise as a cherished and valuable right

Hearkening back to the late 1970s when constitutional politics in India was in nascent shape, the Jabalpur judgement rang clarion calls to the posterity. It pitched the point that Fundamental rights are not artificeto be dispensed with at whims but are inherently vested in citizenry. It spelt the fact that the bare existence of man forms the precondition for investiture of a fundamental right, not vice versa. As the foundation stone of a State’s juridical order, the constitution inheres the bare existence with fundamental right to life and liberty. A sequitur, man has a fundamental right to resist actions and diktats infringing upon his life andliberty. 

Notably, as it’s to be argued through ensuing propositions, right to resistance does not merely toe the line of constitutional text, rather it stretches itself through political and legal praxis. During actual resistance, the language of rights transcends the language of rights in silos to invoke absolute justice, rather than piecemeal invocation of enumerated fundamental rights. The contemporary scholarship has affirmed thatorientation of right to resistance owes itself to the foregrounding of political concept of Human Rights. What remains to be seen is when the state institutionalizes right to resistance as such.

The period starting from 1970s serves as an empirical specimen to further our argument that India ought to engage with this right to resistance without hollering sedition in the same breath, given that human rightsoriented political zeitgeist has reached its crescendo. A case in point, in the post-emergency ADM Jabalpur v. Shivkant Shukla (1976) judgement the supreme Court held that citizens surrender their fundamental right to life and liberty to the state during emergency. Its executive-minded propositions and executive overtures took a direct hit at credibility of the institution. To rectify the ignominy, post–emergency judiciary conceived the concept of PIL (a version of Social Action Policy) which eased the locus standi requirements to bring issues for judicial redressal. From 1970s onwards India has been rocked by many consequential protests and movements packed as much in the language of resistance, as in fundamental rights. How these have moulded and have been moulded by state practices in the realm of rights showcase a unique dialectic between texts and institutions, power and justice.

Institutions as safety valves

Since institutions are meant to plug the gap between assertion and deliverance and act as a bridge to assuage public anxieties, it’s salient to investigate the status of these institutions.

Once a state has transitioned to constitutional democracy, institutions are delimited in a constitutional frame and are meant to check upon any arbitrary exercise of power, epitome of this check and balance is judicial review which some erudite scholars consider to be the apogee to the evolution of right to resistance. However, such claim isn’t universalistic; rather it seems to eschew the fact that institutions such as judiciary are ultimately, in Hamiltonian word, a body without power over purse and sword. Moreover, the phenomenon of Gleichschaltung serves as a critical historical case study, proffering a textbook lesson in the ever-contingent possibility of totalitarian control of institutions that the modern world cannot afford to ignore.

To put matter into perspective, the Election Commission of India endowed with a mammoth responsibility to safeguard the procedural purity of electoral democracy has been mired in controversy after itscontentious handling of recent state elections.  Add to the woes, its controversial special intensive revisions of electoral rolls have excluded millions of voters. This grim picture is testified by the figures incoming from West Bengal. By deleting 90.82 lakh voters, the exclusions in the SIR exercise in West Bengal exceeded winning margins in 160 seats. In an equally callous decision by the Supreme Court, it refused to entertain pleas by individuals challenging their deletions. Hitherto, approximately 91% of the people whose cases were adjudicated by the appellate tribunals had their voting rights restored. It would never be more apposite to hearken the words of Thomas Paine when he wrote in the Dissertation on First Principles of Government (1794) that “it is possible to exclude men from the right of voting, but it is impossible to exclude them from the right of rebelling against that exclusion; and when all other rights are taken away the right of rebellion is made perfect.”

Judicial Review

Recent Constitutional Courts scholarship has narrowly interpreted the constitutional latitude for protests and dissent; effectively reducing their mass mobilization potential into a corralled group. Such rulingsreflect the effort to spatialize and sanitize protests and sap it of its disruptive leverage and vigour. Resorting to judicial evasions (deferring deciding critical, time-sensitive constitutional cases), procedural delays (UAPA-NIA), and treating citizens as misguided lot instead of rights-bearing sovereign, judicial review has transmuted into a sword and a shield for the Constitutional Courts, selectively using them, albeit for all the wrong reasons. Just a simple glance on the recent movements one can observe that the Courts have approached social movements through the lens of skepticism and derision. Delhi High Court even asked for explanations from the government about why it didn’t shut down the notified area for protests at Jantar Mantar and orally remarked that such protests should not happen in the city. 

Dialectic between Institutional valves and dissent 

Once one takes a longue durée view of protest landscape of India, an uptick in novel social movements becomes manifestly clear, it would not be wrong to presume that there is no cul-de-sac to such movements in near future.

In the recent past, the Indian state has shown a kaleidoscopic stance towards dissent. One of the most boisterous showdowns between the government-juridically established as the embodiment of the state came towards the end of 2019 when India’s Citizenship Amendment Act (CAA) was passed, excluding Muslim minority from three neighbouring states from the purview of abridged citizenship requirements. The ire of Muslim minority in India burst forth because of perceived exclusionary schemes latent in CAA, colloquially captured under ‘chronology of de-naturalization’ in the long run. 

Interestingly, the language invoked by the affected citizenry as well as civil society was not steeped in any liberty rights as in Hohfeldian term wherein resistance rests on a belief in intrinsic right to defy the government if it violates the natural rights, rather it was woven around claim right. The Muslim collectivity took up to the streets because it believed in juridical entitlement to equality in the constitutional arrangement of the state. 

Counterpoised to it, the state responded by delegitimizing not the claim right, but misconstruing the equality claim with anarchic liberty. Instead of acknowledging the substance of the protest, it sought to delegitimize the means and the method through which the protest was peddled and presented. Eventually, the protest was reduced to an illegal insurrection verging on sedition. Scores of its leadership continue to languish in jail as pre-trials. This example immediately critiques the strand of thought which harps on ex post inhering of resistance with an ulterior set of norms, laced in meta-legal conception of law transcending the juridical order.

Conversely, the recent movement under the satirical banner of Cockroach Janata Party (CJP) which mutated into a mass movement helmed majorly by India’s young demography in the matter of wee weeks, conjoins the above argument by partially repudiating its premise. Stemming from public furore over recurring administrative lapses in entrance exams, the movement claimed the heart of New Delhi with one predominant goal; to effectuate the resignation of the then Education minister of India. 

The language invoked by its leadership didn’t invoke a right per se, rather it sought executive accountability even though right to education itself is a fundamental right in the Indian constitution. The governmentdidn’t outright discredit the grievance but tried to tame it through prospective legislative overhaul. Nota bene, the claim right walked in once police brutality came affront during a symbolic march to parliament, the ensuing credo of protest picked up on right to protest as much as executive accountability. Vis–à–vis citizenship which is the hallmark of post Westphalian nation–state and is the ontological ground of all rights; right to education is a recent development in the vocabulary of human rights, yet the government eventually ceded to the demands without accepting its premises in toto. The education minister resigned, the leadership thanked the government, vacated the protest site, and went home.

In a first, the supreme court recently invoked article 142 of the Indian constitution and quashed all the FIRs against protesters to render ‘complete justice’, apparently, it did so on the request of the central government. This judicial amnesty in tandem with the executive sits ill at ease with the predominant pattern of criminal jurisprudence in re dissent in India. The disjuncture becomes crucial when juxtaposed to the treatment meted out anti-CAA protests which had resorted to same means and methods as the CJP. Of around a dozen large scale movements/protests in the recent past, these two movements stand out asstate’s camera obscura of inversion of legitimacy at its whims; in the first, it declined room for accommodation of resistance, in the second, it washed off the seditious appellations captured under ‘disruption’ and‘breach of law and order’ to upheld right to resistance, in essence.  

This anecdotal comparison vindicates one thing; resistance in India is couched in the language of claim rights more than liberty rights. Interestingly, though dissent enthused with constitutional entitlement has formed the bulwark of resistance in India, the instrumentalities of the state has worked antithetically towards them, thus giving way to a hostile dialectic between constitutional text, and institutional repression. The fact that right to resistance isn’t a sequestered right in the constitution doesn’t obliterate its persistence. It’s high time that the state heeds this reality and streamline this right as a legitimate one.

Future has a trajectory

Howard Zinn’s Fugitive moments of compassion vividly describes that human rights and dignity have not been bestowed over to the ordinary man as a mercy but has existed in fleeting, often suppressed flashes of collective solidarity. Constitutionalism in India suffers from an institutional bias that credits the longevity of the republic solely to the institutional benevolence and apex jurisprudence, eschewing the reality that rights were forged and defended primarily through furnace of disruptive, street-level friction. Constitution as a living document retreats into such fugitive moments; where women at Shaheen Bagh recite preamble of the constitution, where farmers endure and embrace legal liberalism, where tribals oppose corporate extraction and where students secure their future.

Rather than dismissing right to resistance as an extra-constitutional taboo, recognizing the right to resistance offers the courts an unprecedented opportunity to author a transformative, emancipatory jurisprudence and redeem its counter-majoritarian soul. Such a judicial paradigm would salvage the courts from their current crisis of credibility and restore to “We, the People” their authentic, uncompromised sovereignty.