Back to the Rough Ground of Rights: Pathways for a Historicisation of ‘Civil Liberties’ in India

Abstract

This article is directed at historicising the language and practice of ‘civil liberties’ in India, and it does so by addressing the specific contingencies that have marked its early twentieth-century trajectory that continue to resonate in our historical present. Of course, the immediate point of departure for the article is a methodological fixation with what has been termed as a ‘political approach’ to rights, whose limits set the terms for a more historically resonant and contextually determined approach to an appraisal of normative languages like rights and civil liberties in highly charged political contexts. In thus illustrating the argument that the political approach to rights has translated into a constriction of the space of our normative languages, the effort here is also to set in perspective the pathways for a historicisation of ‘civil liberties’ in India—one sensitive to its subterranean regulatory folds that served to constitute the inner and outer limits of protest across socio-political collectivities active in the historical fields of action germane to the twentieth century India. These regulatory folds have persisted and sustain themselves well beyond the contours of the Constituent Assembly (CA) that went on to make for a republican India (although this latter point is only being hinted at within the broad ground traversed by this article).

Keywords

Rights civil liberties historicisation political approach normative languages protest and civil disobedience violence

Introduction

By and large, the question of ‘rights’ in India (as indeed elsewhere) enters in close proximity with the activist sphere of politics and sociology. Indeed, those given over to investigating and historicising the phenomenon are often close to what the political theorist James D. Ingram has termed the ‘political approach to rights’.³

See James D. Ingram, ‘What Is a “Right to Have Rights”? Three Images of the Politics of Human Rights’, American Political Science Review 102, no. 4 (2008); for calling attention to the importance of Ingram’s working out for the study of rights, see Sasheej Hegde, ‘Where Politics and Morals Meet: Keeping Faith with Human Rights,’ Social Scientist 39, no. 9/10 (2011): 67–69. Ingram labours in instituting a space for the study of the foundation and the evolution of rights, whilst also being sensitive to their usual recovery as primarily ethical interventionist devices. His approach has methodological implications, when he isolates two sorts of approaches usually adopted in studying human rights. One is a philosophical approach, which is concerned with questions in the class of what rights are and what they are based on, which rights are fundamental, for what reason are they fundamental, and why have them. The second approach, which Ingram isolates as being ‘political’ focuses not on foundational questions, but is concerned with operationalising human rights, and how to have them enforced through mechanisms and institutions. The latter approach undeniably does the heavy lifting in socio-political contestations mounted by activists of different persuasions. Indeed, the ‘extra-political provenance of justification’ of these rights, by being underspecified—as Ingram observes correctly—leave behind just a ‘thin philosophical core’. But this exclusively political approach to human rights has occluded the specifics of its conceptual and political inheritance. Thus, the methodological ground of our article.

Within the terms of this approach, it is in their effects and ground of operations that ‘rights’ are seen to have had more value. A more genealogically bound set of questions about the trajectory of rights, the modality of their coming into being, the normative functions they were asked to perform when instituted and across shifting contexts and so on appear less urgent when proximate demands made in the language of rights are fulfilled in contexts of political and social contestation. When rights are respected, in this politically charged view, their foundations and shifting grounds do not require urgent explication. This article is an attempt to work its way through the blind spots thus generated by the political approach in the examination of the language and practice of rights; and we do so by instantiating a small historical-contextualist treatment of the theme of ‘civil liberties’ in India. Indeed, given that the dominant framework within the rights literature in India has broadly Marxist moorings, there is a tendency to construct itself outside of a historical genealogical frame of shifting contexts and transformed meanings. The negotiations germane to shifting historical contexts are often lost in political translation. In fact, there have been few attempts at inserting this dominant vantage point as itself an emergent and historically contingent accrual.

In thus sounding the limits to the political approach to rights which functions as a determining and overarching framework within the thematisation of rights in India, our effort in this article is to come to terms with the incongruous processes—what our title anchors as the ‘rough ground’—constituting ‘rights’ in India that require sustained and sharper historical analyses. We do so by critically engaging with some crucial historical aspects of the ‘civil liberties’ discourse in India, and in the process foreground pathways for an alternative historicisation of ‘rights’ in the making in India.

Reframing the Historical Ground

The emergence of what is broadly characterised as the ‘human rights movement’ in India is often traced to civil liberty unions initiated by Indian nationalists against the police powers of the colonial state.⁴

For a reading of the ‘origins’ of a ‘human rights movement’ against the backdrop of the formation of a civil liberties union in colonial India, see Munmun Jha, ‘Nehru and Civil Liberties in India’, International Journal of Human Rights 7, no. 3 (2003): 103; Ajay Gudavarthy, ‘Human Rights Movements in India: State, Civil Society and Beyond’, Contributions to Indian Sociology 42, no. 1 (2008): 30. The latter contribution also posits phases for the ‘human rights movement in India’, broadly characterising the 1970s as a ‘civil liberties phase’, the 1980s as a ‘democratic rights phase’, and the 1990s as a ‘human rights phase’. For a somewhat similar and chronologically prior attempt to outline the transitions in the language of rights as part of a ‘human rights discourse’, see Manoranjan Mohanty, ‘The Changing Definition of Rights in India’, in Thinking Social Science in India: Essays in Honour of Alice Thorner, ed. Sujata Patel, Jasodhara Bagchi, and Krishna Raj (New Delhi: SAGE Publications, 2002), 428.

This terse formulation (and the condensation that effects it) obscures a foundational question: how could a ‘human rights movement’ exist in British India when more recent historical work attests that it was only the decade of the 1970s which witnessed a ‘human rights’ upsurge around the world?⁵

For a sharper grasp of the more recent lineage of the spread of the idea of ‘human rights’, see extensively Samuel Moyn’s, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).

Anomalously yet, the language and practice of ‘human rights’ did not obtain at all in the colonial context, with ‘civil liberties’ more pronouncedly having had currency at the time. Besides, such a characterisation unselfconsciously misses the specific utility of the civil liberties discourse in specific historical conjunctures, and whose features arguably stay stable well into the Indian present. Admittedly, our intent here is not to map the tortuous and variegated journey in the conceptual language of rights, as evidenced say in a movement from ‘civil liberties’ to ‘human rights’. We are certainly not striving after more appropriate analytical categories than previously offered either. Undeniably yet, the context demands attending to the nuances attaching to normative languages, especially since particular norms of protest were both being instituted and constrained over time. The intellectual historian Quentin Skinner alerts us of the dangers of ‘congratulating’ the past and the figures that stalk its pages in anticipating future discourses.⁶

For Quentin Skinner’s views, see his Visions of Politics Volume 1: Regarding Method (Cambridge: Cambridge University Press, 2002), 63.

Heeding this reminder also entails that our historical recounting of the space of civil liberties’ in India will strive to resist the temptation of offering yet another ‘human rights’ history. One will indeed be recasting aspects of the past here in the pages that follow, but we hope to be able to render intelligible just how much could be done with an idea of historicising the language of rights in India.

Quite reasonably, given the dominant staging of the history of the ‘human rights movement’ in India in the way just alluded, we may well ask: what is important and specific about the idea of ‘civil liberties’ in India? In formulating this question, we also hope to animate some of the challenges for historicising an idea like ‘civil liberties’ in India. Indeed, quite apart from correcting the anachronism of recovering ‘civil liberties’ as ‘human rights’, as it were, we seek to provide an alternative account of the rough ground which underlay civil liberties activism in India. The subsumption of this activism within a subsequent and broader ‘human rights’ discourse which found activation in due historical course will however fall outside the purview of this article; the transition is too large a ground to be covered synoptically. To be sure, we think of our mandate as one within a historically mediated political sociology rather than within normative political theory, deferring the latter space of evaluation for another occasion. Admittedly, we need to pay closer attention to the transformations in normative languages, especially since norms of protest and schemes of legitimation were being constantly fashioned and refashioned in particular context.

Another quandary (apart from the anachronism alluded to) for a student of ‘rights’ in India is the moral psychology within which its contours have been over-determined, a self-righteousness which has gone hand in hand with inadequate attention to the shifting terrain of contending normativities. In short, it is not just important to talk about ‘civil liberties’—of course it remains crucial in delimiting the belligerent executive arm of the state—but it is also important to ask how has ‘civil liberties’ been talked about in the course of its deployment. After all, foundational questions, adequately historicised, are as crucial in understanding our present, apart from comprehending the many careers of a politically charged discourse. Let us therefore begin by recounting a ‘broadly’ representative exercise at defining a typology of rights in India, one through which we can glean the proclivities of the political approach we are arraigning against. ‘Human rights discourse in India’, the renowned legal scholar Upendra Baxi has pointedly observed, ‘... is characterised by distinctions between “civil liberties” (rights of citizens against the state) and “democratic rights” of the “people” or “masses” (i.e., articulation of expectations of entitlements of just governance insisting on fulfilment of positive obligations of the state towards peoples)’.⁷

Upendra Baxi, ‘The State and Human Rights Movements in India’, in People’s Rights: Social Movements and the State in the Third World, ed. Manoranjan Mohanty, Partha N. Mukherji, and Olle Törnquist (New Delhi and Thousand Oaks, CA: SAGE Publications, 1998), 338–39.

Interestingly enough, he goes on to add:

The distinction is important in many ways. ‘Civil’ rights impose, typically, restrictions on state power, while ‘democratic’ rights summon state to pursue affirmative action empowering ‘people’. ‘Civil’ rights stand codified; ‘democratic’ rights represent a range of entitlements arising partly out of the codified human rights but also going much beyond these, to claims which, as it were, are entitlements-in-making. While ‘civil’ rights are rights of citizens or persons, ‘democratic’ rights are asserted in the name of the ‘people’ or the ‘masses’, or broad cross-sections of these. ‘Democratic’ rights are usually associated with, and emerge from, contemporary struggles building on the culture of given, entrenched, fundamental rights; ‘civil’ rights articulate products of the past history of struggles. While related, the distinction between the two ‘types’ or ‘categories’ of rights registers relatively autonomous discursive traditions. The ideological composition of both traditions also tends to vary; in India the political/intellectual Left tends to be associated with movements of ‘democratic’ rights while the liberals are seen as crusaders for ‘civil’ liberties. In situations of overall political crises, both activist streams co-mingle; but in times of peace, there exists a deep divide between the two types/formations of discursive struggle.⁸

Ibid.

Notwithstanding the noticeable slippage between the categories ‘civil rights’ and ‘civil liberties’ in the foregoing passage, we can of course affirm that the grounds on which the political/intellectual Left was dismissive of the materiality of civil liberty interventions by liberal-nationalists in India—such as on grounds of being class-insensitive—go all the way back to Marx’s well-documented disbelief on the universal coverage of rights in his pamphlet ‘On the Jewish Question’. This approach continued to be writ large in accounts that sought a foundational explication of civil liberties in India, accordingly viewing early civil liberty interventions in colonial India as sub-serving interests of capital and bourgeois nationalism (more on this later).⁹

Personal interview, Varavara Rao, 25 November 2008, Hyderabad. For Karl Marx ‘On the Jewish Question,’ in Collected Works: Vol. 3 (Moscow: Progress Publishers, 1975), 146–74. As a certain orthodox interpretation would have it, the argument of Marx in this essay has been taken to constitute an attack on the discourse of rights. We are inclined to disagree. At the core of the analysis presented in the text is a concern less with meaning than with the ground and telos of rights. This difference is critical because Marx’s argument grounding rights in community and defining its scope accordingly (ibid., 160–61) would entail the objection that if only recognition shows that people have rights, then the meaning of rights should be restricted to the logic of mutual recognition. But evidently, Marx is not arguing this, presenting as he is a commentary about ground and telos (and not meaning). Marx takes the telos of the desire to have a right to attain recognition from others of oneself as having a certain standing (and hence certain entitlements). See also Jay Bernstein, ‘Right, Revolution and Community: Marx’s “On the Jewish Question”’, in Socialism and the Limits of Liberalism, ed. Peter Osborne (London: Verso, 1991), 91–119.

These disqualifications, we believe, has led to further misrecognition of the category ‘civil liberties’ in India. In effect, very little work was done on researching this category once it was deemed class-contaminated. Accordingly, others have constructed phases of this activity from the 1970s failing to spot continuities embedded in earlier developments. For example, the political scientist Manoranjan Mohanty relies on the distinction between ‘civil liberties’ on the one hand and ‘socio-economic rights’ or (the right to) ‘bread’, but sees the distinction blurring in the post-emergency activism for rights thereby leading to the beginnings of a ‘creative society’.¹⁰

Mohanty, ‘The Changing Definition of Rights in India’, 429.

Likewise, another political scientist Ajay Gudavarthy provides a neat conceptual basis for rights activity by mapping it on to ‘civil society’ and its transforming relationship with the state from the 1970s to 1990s. The sum of his wide-ranging argument is to state that the relationship began in the 1970s ‘within the framework of state-civil society complementarity’—mobilising primarily to ‘protect the civil liberties or fundamental rights of the citizens’ within a constitutional imperative—and culminates in the 1990s in a ‘human rights phase’, which (relying on developments within rights activity in the erstwhile united Andhra Pradesh) is anchored on a ‘civil society versus political society framework’. This latter ‘human rights phase’ and the framework implicating it, according to Gudavarthy, did not flinch from critiquing excesses committed by radical, social and political movements, nor did it shy away from ‘locating and condemning human rights violations (especially) at the civil societal level’.¹¹

Gudavarthy, ‘Human Rights Movements in India’, 29.

What is more, for Gudavarthy, this supposedly ‘human rights phase’ was neither in ‘tandem, or complementary, nor merely against the state’, which again seeks to explain how it was that the human rights movement came to deploying state-inaugurated instruments of curbing executive power without relinquishing the gains made from a radical espousal of politics, as also the new found space to criticise the injustices of radical socio-political formations themselves.¹²

Ajay Gudavarthy, Politics of Post-civil Society: Contemporary History of Political Movements in India (New Delhi: SAGE Publications, 2013), 39–51.

In sum, he sees in the coming about of the Human Rights Forum (HRF) in erstwhile united Andhra Pradesh the embodiment of a standpoint that could be equally critical of state as well as armed opposition groups.

In contradistinction from the foregoing accounts, it is our contention that this point of arrival of post-emergency political activism actually marks a return to a much more classical and older civil liberties discourse. What is more, the foundations of the language and practice of civil liberties developed quite differently from the somewhat ideal-typical terms of the political approach outlined above. In fact, it is our contention that there are certain historical and normatively contingent payoffs in recognising that this is so. For purposes of demonstration, our effort will commence with an important moment in the (albeit transient) provincial government phase in the late 1930s when Indian political parties partially took charge of running regional governments in different locales after winning elections.

The 1930s Surround of Civil Liberties and Beyond

Extant commentaries dealing with this incipient civil liberties mobilisation during colonial rule posit it as having two phases, split rather neatly by the Indian National Congress (INC) forming governments in several provinces in 1937. There is a near unanimity within the literature that this ‘anti-state’, broadly ‘non-partisan’ civil liberties platform aided the nationalist cause in the early 1930s when it was first inaugurated by the nationalists, but is sought to be diluted—understandably, as the accounts aver—after the INC forms governments in the provinces in the late 1930s.¹³

For the change in INC’s attitude towards civil liberties after assuming office in 1937, see Munmun Jha, ‘Nehru and Civil Liberties in India’, International Journal of Human Rights 7, no. 3 (2003): 110–11; see also Sitharamam Kakarala, ‘Civil Rights Movement in India’ (PhD dissertation, Centre for Social Studies, Surat, 1993), 59.

Thus these narrations delineate the cry for ‘civil liberties’ primarily as shoring up nationalist efforts in aiding the anti-colonial struggle—or at best an inaugural factoid—and then move on to characterise it as relinquished when it no longer suited the INC. Accordingly, we also have Aswini K. Ray arguing that civil liberties in its inaugural moments provided ‘legal aid to the nationalists accused of sedition against British colonial rule’, and subsequently rights after the transfer of power were ‘reduced exclusively to their legal-constitutional basis’.¹⁴

Personal interview, Aswini K. Ray, 11 October 2009, New Delhi; but see also his ‘Civil Rights Movement and Social Struggle in India’, Economic and Political Weekly 21, no. 28 (1986): 1203 for a similar view.

Nilanjan Dutta in a similar vein also foregrounds the anti-colonial basis of this mobilisation, and indexes the essence of the ‘civil liberties movement’ in the colonial period as being ‘anti-statist’. The ‘movement’ was best represented—as Dutta recalls Nehru’s words—as promoting ‘the right to oppose the government’.¹⁵

Nilanjan Dutta, ‘From Subject to Citizen: Towards a History of the Indian Civil Rights Movement’, in Changing Concepts of Rights and Justice in South Asia, ed. Michael R. Anderson and Sumit Guha (Delhi: Oxford University Press, 1998), 275–88. Nehru’s views—as indeed Dutta’s characterisation of the movement as being ‘anti-statist’—are at ibid., 279.

While it is pretty obvious that ‘civil liberties’ was a key component of an anti-colonial and anti-state platform, it is our contention that these commentaries are insufficiently attentive to the disputations that the category and its deployment entailed in the colonial period (which, in turn, fashion its historical and legislative contours). Getting a measure of these disputations is therefore imperative if we have to be striving for a historicisation of ‘civil liberties’ in India.

As we address this transient moment of the late 1930s, it is imperative to note that even as the language of ‘civil liberties’ in India pressed into service was specifically aimed at blunting the emergency police powers which the colonial executive had assumed in the period, this did not exhaust what was sought to be done with the ‘civil liberties’ category. The wielding of these emergency powers had indeed overseen the banning of Nationalist and Communist organisations, restrictions on the press, and massive preventive detentions (including custodial violence). Forwarding the claims of ‘civil liberties’ in this fraught conjuncture necessarily meant classically protecting and defending the individual right against arbitrary arrest and the associated rights to free assembly, expression and association. Significantly yet, in what constitutes a major transiting point in the instituting juncture of civil liberties in British India, the INC formed Provincial Governments in various regions as an outcome of the provincial elections of 1937 as mandated by the Government of India Act 1935. This moment marks an important phase of both meaning-accretion and strain on the idea of ‘civil liberties’, for it was in this phase that the INC would be stretched by opposing pressures exerted on it by shades of the Left that were a part of it, as also an increasing big industrialist lobby within the party. This context is important to bear in mind considering the disputations and affirmations about ‘civil liberties’ that were about to follow.

Having granted these developments a certain foundational status in reconstructing the contours of civil liberties in India, it is important to place in perspective a distinctive feature of the emergent discourse in this instituting juncture of the 1930s. It was important that the emergent discourse of ‘civil liberties’ facilitated protest without displacing the norms which had been set in place curbing violent protest. This latter feature, it must be noted, has never been recalled about the early civil liberty discourse, for while the discourse was being inaugurated principally to counter the emergency powers of the colonial and provincial governments’, the idea of ‘civil liberties’ was also being simultaneously used to legislate norms for protest constituencies in carrying out their modes of action. Inadvertently, then, while facilitating protest, the idea of civil liberties was also ‘legislating’ forms of political protestation across the ideological spectrum which had at times yielded violent modes of action. Indeed, recalling the circumstances that facilitated this regulation, in the decade before Indian independence, the idea of ‘civil liberties’ played an important part in identifying the grounds for acceptable protest, with Gandhi drafting a Congress resolution to this effect and urging the following:

Inasmuch as people including Congressmen have been found in the name of civil liberty to advocate murder, arson, looting and class war by violent means and several newspapers are carrying on a campaign of falsehood and violence calculated to incite the readers to violence and to lead to communal conflicts the Congress warns the public that civil liberty does not cover acts of or incitement to violence or promulgation of palpable falsehoods. In spite therefore of the Congress policy on civil liberty remaining unchanged the Congress will consistently with its tradition support measures that may be undertaken by the Congress Governments for the defence of life and property.¹⁶

‘Gandhi’s Draft Resolution on Civil Liberty’, in Basudev Chatterji, ed., Towards Freedom: Documents on the Movement for Independence in India 1938, 3 vols., vol. 1 (New Delhi: Indian Council for Historical Research [ICHR] and Oxford University Press, 1999), 102–03. This development was at the Delhi AICC session of 26 September 1938. The resolution was moved by Bhulabhai Desai and seconded by J.B. Kripalani. The turnout was good since 225 of the 350 AICC members were present. Chatterji reminds that the ‘resolution as finally passed incorporated an oral amendment … to add the words ‘a few’ before ‘Congressmen’ (ibid., 103).

Doubtless, the immediate background to this resolution was that the Communist Party of India (CPI) had objected to the Congress–Landlord pacts regarding the Tenancy Reform Bills tabled by the Bihar and United Provinces Ministries. The modern Indian historian Sumit Sarkar even reports that the INC’s denunciation of ‘class war’ in the civil liberty resolution was made specifically in light of their ‘increasingly hostile attitude towards Kisan Sabha militancy’ with Congressmen banned from attending their meetings. Furthermore, on this view, it was important to note that the Congress ministries were employing police pickets and Section 144, with Kisan Sabha’s slogans advocating the Danda (stick) attracting Congress ire as going against the creed of nonviolence.¹⁷

Sumit Sarkar, Modern India: 1885–1947 (Delhi: Macmillan, 1983), 365. The Congress was forced to carry out limited agrarian reform under pressure from an enormous peasant movement between 1937 and 1939. The Kisan Sabha membership approached half a million in 1938 with 250, 000 in Bihar alone (see ibid., 363).

Evidently, then, the evolving language of ‘civil liberties’, apart from legitimating the right to protest in keeping with its classical liberal moorings, was also being deployed to disqualify ‘violent’ protests of Communist formations in the colonial period. It thus comes to be staged as a sort of normative device constituting the inner limits of ‘legitimate’ protest. Clearly, what was being sought to be configured and defined was the boundaries of protest, and importantly for our purposes here this was occurring in the language of ‘civil liberties’. Indeed, while Gandhi was sounding out these limits of protest, Lohia in his 1937 pamphlet was emphasising their expansion by upholding radical claims of protest that were facilitative of overall social transformation.¹⁸

See his The Struggle for Civil Liberties (Allahabad: Foreign Department, All India Congress Committee, 1936), 34–35, for his view on how defence of civil liberties was important for nationalist and socialist struggles around the impoverished world in checking a colonial state which supported the ‘class policy of finance capital and landed aristocracy’.

In other words, the idea of civil liberties was proving useful to those who wished to modulate protest as well as to those who demanded to further it. The latter, i.e., those who wished to accentuate socio-political protest, asked that civil liberties be guaranteed and extended, whereas the former (those concerned with modulating protest) disqualified demands for extension on the grounds that the immunities sought for conducting protest must themselves conform to certain moral/legal limits. Evidently, a constitutive tension between the inner and outer bounds of civil liberties was being set in place, even as the INC and the various shades of the Left within its fold and outside competed with each other’s way of going about their respective politics.¹⁹

See Chatterji, Towards Freedom, 88–116 for a fascinating history of how the grounds of civil liberties were being fashioned within the INC’s warring Left and Right segments.

This circumstance, needless to say, ought to have implications for more recent debates on ‘revolutionary violence’, ‘private violence’, counter-violence, and state repression and their relationship with the domain of rights. However, previous raconteurs refer to this circumstance, as also Gandhi’s resolution of 1938, only in passing,²⁰

See Munmun Jha, ‘A Study of Human Rights Organizations and Issues in India’ (PhD dissertation, University of Glasgow, 1996), 42, although Sitharamam Kakarala does concede that the resolution marked a shift in the INC’s tone of civil liberties; that is to say, where hitherto (i.e., before forming provincial ministries) the manner was radical, this was soon diluted after Congress governments’ took office and sought to weaken ICLU’s protests: see his ‘Civil Rights Movement in India’ (PhD dissertation, Centre for Social Studies, Surat 1993), 59.

and their recapitulation of the pre-independence era of civil liberties mobilisation, while staying within the movement framework, conforms to what V.M. Tarkunde said about it, namely, that it is of only historical importance, since it was the first time that the contours of civil liberties work was being thought through and did not eventually matter in the day-to-day affairs of the country.²¹

See Smitu Kothari, ‘An Interview with V.M. Tarkunde’, in Rethinking Human Rights: Challenges for Theory and Action, ed. Smitu Kothari and Harsh Sethi (New Delhi: Lokayan, 1989), 136.

But we certainly are pressing for more here, in the anticipation that events from this period have structured debates on the limits of civil liberties which would later become manifest, as indeed the resonant question of the relationship between violent protest and civil liberties (with the Communists trying to incorporate working class disobedience into the civil liberties framework, and attempting to do so much before the rights framework of the post-Naxalbari period). More pertinently, this episode appears to be an early instance of this line of political argumentation in India—about the relevance and suitability of violence to the socio-political order—and it was being forged within the language and practice of ‘civil liberty’, albeit coming from a carefully argued counter from Gandhi and more general responses in the same vein from others in the Congress leadership.

In this light, we could consider Sumit Sarkar’s further characterisation of this moment, which states that it was impossible for the INC in the provincial government phase to continue ‘pleasing Hindus and Muslims, landlords and peasants, or businessmen and workers at the same time’, and consequently that, while veiled in Left rhetoric, the INC shifted steadily rightwards towards Indian capital. He posits the INC reintroducing emergency powers as emblematic of its moderation, its shift to the right, and its class character in recanting civil disobedience after taking over governance in the provincial government phase.²²

Sarkar, Modern India, 351–52. Sarkar estimates that the INC’s shift to the ‘right’ explains why they had minimal confrontations with officialdom save for when its ministries resigned in September 1939.

While Sarkar’s explanation—that the INC’s clamping down on labour is explained better by the formation sharing the material basis of their support with Indian capital—is compelling, it is reductive to discount the realm of contested ideas and norms thrashed out at this stage about civil liberty and the obligations they entail in modulating protest and civil disobedience, particularly since the structure and even the language of the discourse established in this instituting juncture is reproduced in later periods. Doubtless, in the provincial government phase, these agreements about the violence-limit to civil liberty would squarely aid the thwarting of labour militancy. But what is significant is that this happened through contested normative constructions of ideas about means and ends of civil disobedience in achieving social transformation.

In the Aftermath of Independence and Constituent Assembly

Furthermore, these limits are also visible in the immediate post-independence period as well as when the CPI had taken to armed struggle. By early 1949, the CPI had been declared illegal in most states and was nominally legal in a few others.²³

Mohan Ram, Indian Communism: Split within a Split (Delhi: Vikas Publishing House, 1969), 20.

While agreeing that incitement to violence had to be dealt with as a law-and-order problem, the misuse of preventive measures via newly passed Public Safety Acts in several provinces attracted derision from political luminaries. Thus, speaking about several cases of repression in Bihar, Jayaprakash Narayan (JP) is emphatic that he was ‘... (n)ot asking for freedom for the disturber of the peace’, but (as he avers) ‘to take advantage of the emergency powers to crush political opponents as legitimate movements of the people is an injustice unworthy of an enlightened and democratic government’.²⁴

‘Civil Liberties in Bihar: Jai Prakash, Protests against Repression’, in Civil Liberties in India, ed. K.G. Sivaswamy, 2 vols., vol. 1 (Conference Proceedings), (Madras: Thomson and Co. Ltd., 1949), 82. The press conference addressed by JP is dated 21 February 1949.

Jawaharlal Nehru also appears to acknowledge that in the name of rounding-up Communists who had taken to armed struggle in Calcutta, some Socialists were arrested due to inaccuracies in the lists of individuals meant to be arrested.²⁵

Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Paperback edn (New Delhi: Oxford University Press, 2003), 54. Note dated 25 February 1949.

But he was also certain that the civil liberty organisations floated were not ‘non-party’ entities; rather, creatures of the CPI, which were formed to ‘encourage anti-social’ and ‘disruptive activities’. He sought to justify the curtailment of civil liberties in the face of mounting violence, and three days after his note, in a speech to the Constituent Assembly (CA) he maintained that,

[T]he Communist Party of India, however, appears to be bent on flouting the opinion of the majority of workers and has pursued a technique of terrorizing those who do not agree with its policy. While interfering with the freedom of action of others, it demands full freedom for itself to carry on its own anti-social and disruptive activities. If any action is taken by the Government to check these activities, protests are raised on the ground of civil liberties being interfered with. As a part of this technique, organizations for the ostensible object of protecting civil liberties are started, their real object being to encourage these anti-social activities. The Government are anxious that the civil liberties of the people should be fully maintained. But it is not the Government’s conception of civil liberty to permit methods of coercion and terrorism to be practised against the general community. It is the paramount duty of the Government to give security to the people and to prevent the normal life of the community from being interfered with by such methods of violence.²⁶

Ministry of Home Affairs, Communist Violence in India (Delhi: Government of India, 1949), 6. Speech dated 28 February 1949.

The historian and postcolonial theorist Dipesh Chakrabarty’s idea that forms of activity prescribed in the anti-colonial struggle were now sought to be proscribed after the transfer of power is reflected particularly in Nehru’s thinking.²⁷

Dipesh Chakrabarty, ‘“In the Name of Politics”: Sovereignty, Democracy, and the Multitude in India’, Economic and Political Weekly 40, no. 30 (2005): 3293–94.

But what should also be clear is that there were broad continuities in the legislating limits to civil liberty protestations that obtained on either side of the transfer of power. Nehru’s speech was reproduced in a pamphlet brought out by the Government of India’s publication division (as our above citation reveals), no doubt as part of government counter-propaganda. Nehru’s speech in the pamphlet prefaced descriptions of Communist strategy in forming guerrilla bands and shock brigades, which were culled from different Communist documents of the time. While justifying the need to prevent internal security from collapsing, the speech conceded that forcibly putting away people was discomforting for the government. Significantly, a week after his speech at the CA, Nehru reiterated these views to the Federation of Indian Chambers of Commerce and Industry in New Delhi, when he said that civil liberty meant ‘the fullest freedom to people of all groups to preach their doctrines, provided there are no incitements to violence’.²⁸

Jawaharlal Nehru, Independence and After: A Collection of the More Important Speeches of Jawaharlal Nehru from September 1946 to May 1949 (Delhi: Publications Division, Government of India, 1949), 186–87. Speech dated 4 March 1949.

There was indeed a call to arms from the CPI; and in the months following its Congress, the CPI through its trade union arm launched strikes and tried to convert every partial strike into a general strike. At the same time, provincial governments were extending public safety acts in various places. It was in this backdrop that three CA members—chiefly Thakur Das Bhargava—sought restrictions on the executive’s power to preventively detain individuals.²⁹

Madhu Limaye, ‘Indian Communism: The New Phase’, Pacific Affairs 27, no. 3 (1954): 198. An unsuccessful railway strike in March 1949, purportedly the first step in the seizure of state power was sequenced in April with a hunger-strike among undertrial prisoners in West Bengal that would continue for 56 days. This was followed by the party announcing a general strike in support of the jail strike. For evidence of these events, see Mohann Ram, Indian Communism: Split within a Split, 20; see also Sumanta Banerjee, India’s Simmering Revolution: The Naxalite Uprising (London: Zed Books, 1984), 63; Nilanjan Dutta, ‘Democratic Rights in West Bengal—Issues and Approaches’, in Expanding Governmental Lawlessness and Organized Struggles: Violation of Democratic Rights of the Minorities, Women, Slum Dwellers, Press and Some Other Violations, ed. A.R. Desai (Bombay: Popular Prakashan, 1991), 237. As a response to these developments, Public Safety Acts were put in place in several places; see for instance Editorial Collective, ‘Public Safety Acts in Bengal and Bombay’, The Indian Civil Liberties Bulletin 1, no. 6 (1950): 70. This development occurred in April 1950: The Act was put in place in Bihar for a year, while in Bengal and Bombay, new public safety acts were passed for a duration of three years. For evidence of members of the CA pushing for more restrictions, see Granville Austin, The Indian Constitution: Cornerstone of a Nation, Reprinted edition. (New Delhi: Oxford University Press, 1999), 109.

These implorations were also being reflected in newly reviving civil liberty organisational circles. Thus in their recently launched monthly bulletin in October 1949 called The Indian Civil Liberties Bulletin, the All India Civil Liberties Council (AICLC, established in 1949)³⁰

The AICLC in the late 1940s was populated by Socialists such as JP, Royists such as V.M. Tarkunde and A.K. Pillai, the Servants of India Society members such as K.G. Sivaswamy, S.G. Vaze and N.M. Joshi, and, shortly, Syama Prasad Mookerjee and N.C. Chatterjee of the Hindu Mahasabha. Of these, Chatterjee’s role in the mid-1960s in freeing incarcerated communists, and that of Tarkunde and JP in the events leading into the 1975 internal emergency and establishing civil liberty organisations bears out the fact that there was indeed continuity of personnel between these periods.

was perhaps responding to both Nehru’s earlier allegation about civil liberty unions started by the CPI to condone its violence as well as the Madras government’s notification banning the CPI and its affiliated bodies. While stating that the bulletin was ‘free from all political ties’, the AICLC reiterated that they ‘have no manner of sympathy with anyone who either preaches or practices violence and will always lend the fullest support to any measures a government may take to discover and punish all such as are guilty of these crimes’. All the same, they argue that such government measures could not translate into ‘notifications’ such as the ones issued by the ‘Madras Government attributing to whole bodies of men the guilt which must be proved in each individual case by due process of law’.³¹

Notification dated 26 September 1949; see Editorial Collective, ‘Madras Bans Communists’, The Indian Civil Liberties Bulletin 1, no. 1 (1949): 5.

The bulletin of the AICLC, housed in the offices of the Servants of India Society at Poona, continued to reflect such modulated concerns, and in its first issue emphasised that its approach would be ‘wholly non-party’, with ‘no less profound a concern for national security than for civil liberty’ and recognising ‘that both are social interests of the highest value and that a proper balance must be struck between the respective claims of these interests’. Given this balanced perspective, the AICLC affirms that ‘they will fight the tendency to regard the individual as nothing and the State as everything’, even as ‘they will ever be ready … to concede in ungrudging measure what is legitimately due to public order and the security of the State’. As part of this endeavour, it is held that ‘(t)hey will not countenance violence in any shape or form, but on the contrary, will utterly oppose every attempt to preach or practice violence’.³²

Editorial Collective, ‘Our Aim and Method’, The Indian Civil Liberties Bulletin 1, no. 1 (1949): 1.

‘Civil liberties’ as a category was being invoked in the CA in precisely this context, a development missing entirely from the larger evolving discourse on civil liberties in India. Coeval with the CPI’s trade union belligerence and the AICLC’s demand that CPI cadre be released, the CA would be discussing eradicating the scanty safeguards against executive misuse of preventive detention, with the parliament now determining every aspect of detention.³³

Austin, Cornerstone, 111–12. The resolution was introduced on 15 November 1949. Parliament now had the right to determine the maximum duration of the detention, the power to specify categories under which detention could exceed three months and remain unexamined by an advisory board, and the power to prescribe the procedure to be followed by the advisory board.

The mood in the CA appeared in favour of these restrictions, for soon after in a matter of days, we have a member K.K. Desai asking whether it was

proper to allow somebody, as it is happening in Calcutta, or in some of the places in Andhra, in the sacred name of civil liberty, to exercise their individual civil liberty in order to take away the Civil liberties of millions of people and create fear among them? [and holding] I think that is not civil liberty.³⁴

At this point in the speech, another member is recorded in the CA debates as having interjected audibly, ‘[it is] Criminal liberty’; see Constituent Assembly Debates: Official Report, 5th edn., 12 vols., vol. 11 (New Delhi: Lok Sabha Secretariat, 2009), 682. Henceforth referred to as CAD.

The reference to Calcutta and Andhra was in all probability to the CPI’s activity. Desai’s view was echoed soon after by Syed Muhammad Sa’adulla and Jadubans Sahay, the latter stating that there could be no civil liberty if there was no country in the first place, and that communists and others ‘(f)ighting for civil liberties at this stage will be endangering the very life of the state’.³⁵

CAD, ibid., 803. Dated 22 November 1949. For Sa’adulla’s views, see ibid., 733–34.

Likewise, M. Thirumala Rao from Madras was angry with eminent jurist S.R. Das for having attacked the new government, and going on to say: ‘Under the cloak of civil liberty, you should not allow even these champions of civil liberty who retire after a lifetime of service under a foreign slave-master and now come in full glory and vigor in support of civil liberties to speak as they like. It must be pointed out to them that they have a responsibility to the State’.³⁶

CAD, ibid., 819.

So also Nandakishore Das reiterated the idea that rights guaranteed to citizens cannot degenerate into license to do anything, and that this license was being ‘miscalled ... civil liberty’. He contended that rights ought to be correlated with duties in the new constitution in such a way whereby only by performing duties one could be eligible for any rights.³⁷

CAD, ibid., 851.

When it was his turn to speak, Balkrishna Sharma repeated the established idea of civil and criminal liberty from the late 1930s. Does civil liberty, in the words of Gandhi, mean ‘criminal license’, asked Sharma rather dramatically, adding rhetorically that civil liberty does not mean ‘criminal license’.³⁸

CAD, ibid., 968.

We see here that the CA in positing certain limits to demanding ‘civil liberty’ for meeting the ends of protest was being largely consistent with established conventions of protest from at least the late 1930s. In fact, these founding scales were arguably the regulatory folds that informed the restrictive clauses circumscribing the freedoms of association, assembly, expression and person later ratified into the Indian republic’s new constitution. These limits would continue to obtain in the wake of the transfer of power, helping to disqualify the armed struggle of the CPI as also the violent activities of the Hindu right in the wake of the partition-related communal carnage and the later events surrounding Gandhi’s assassination. Clearly, the language and practice of civil liberties at the time denied normative protection to violent protest. We shall now, in a concluding foray, move on to considering the import of a now forgotten legislative function of civil liberties in India.

By Way of Conclusion: Normative Languages and the Political Approach to Rights

We hope to have demonstrated that the early career of civil liberties in India had a complicated relationship with forwarding the claims of protest, which was itself foundational in setting up a certain template for making protest-related rights claims that also become historically recurrent and resonate through to the present. The fact that ‘civil liberties’ in its instituting juncture of the 1930s came to be formulated as a kind of normative device that could not simply be reduced to its traditional mandate of curbing state trespass into citizen’s rights also meant that it incorporated a focus on the rights of those socio-political collectivities that required these citizen rights to forward their protests. In thus setting up the pathways for a historicisation of ‘civil liberties’ in India, we have sought to press the point that events from the 1930s period have structured debates on the limits of civil liberties which would later become manifest, as indeed the resonant question of the relationship between violent protest and civil liberties. More pertinently, the extended ground of our historicisation appears to be the earliest instance of this line of political argumentation in India—specifically about the relevance and suitability of violence to the socio-political order—and what is important for our purposes is that it was being forged within the language and practice of ‘civil liberty’.

Returning then to our opening overture, we alluded to the preponderance of the political approach to rights, while also querying the terms of the pre-eminence accorded to this approach in addressing the shifting contexts of ‘civil liberties’ in India. By granting the latter category an autonomous and extended field of operation, we were resisting the terms of its caricature as being solely (or exclusively) liberal nationalist and/or merely being inaugural and foundational. Such a methodological move can also serve to prevent the evacuation of the socio-political sphere of the full blast of normative arguments sustaining rights in India; and, in the process, sound the limits of political explanations founded singularly on the socio-economic context of rights and civil liberties in India. Alongside this methodologically resonant and historically contingent register, the pathways of our historicisation has further highlighted an occluded dimension of the very idea of civil liberties as it obtained in the early twentieth century India. It is imperative to note that, even as the ‘civil liberties’ idea was being normatively deployed within constituencies of socio-political protest in India to thrash out the very grounds and meanings of protest, the extended language of ‘civil liberties’ was also reconstituting the inner and outer limits of political articulation across the socio-historical fields of engagement. Thus Gandhi in pointing out the disqualification of Communist and communal violence as illegitimate grounds for demanding civil liberties was also sounding out its inner limits.

Indeed, it is our contention here that the normative debates about the limits of activating the protections resident under civil liberties were often thrashed out by ‘innovating ideologists’ while sorting out intra and inner-party disputes about acceptable norms of protest; and, what is more, that an exclusive organisationally centred political history or ‘movements’ focus would occlude such a dimension. The effort here, accordingly, was to delineate the sharp normative possibilities available in the language and practice of civil liberties as enunciated by ideologists of various hues in India. By retrieving this missing dimension of normative arguments made through the language of civil liberties, in particular, we hope to have opened-up to a study of contextually bound normative arguments in the Indian socio-political context. The provocation of this article will hopefully translate into more historically sensitive appraisals of the normative languages that resonate in the public sphere of India today, including ‘civil liberties’ and, yes, ‘human rights’.