We live in the age of the emergency state. The nature of globalization and its security challenges — whether in the form of terrorism or global pandemics — requires the state to remain constantly on the alert. Thus, instead of the state having limited access to emergency powers under exceptional circumstances, we are increasingly witnessing “emergencies” as an extended social reality.
Moreover, these emergencies have substantially modified the social contract, with the state having taken on powers that would hitherto have been considered unthinkable with little or no opposition or discussion. Witness the complete lockdown in India and most countries across the world, including the substantial shuttering down of any judicial recourse during this period. In the Indian case, this new social reality raises concerns about the unbridled exercise of executive power and the legitimacy of colonial-era laws that have been used to administer emergencies.
On April 1, to deal with the COVID-19 outbreak, the District Administration in Panchkula, Punjab, invoked the Punjab Villages and Small Towns Act, 1918 (PVSTA). This Act allows the deputy commissioner to direct any able-bodied adult male inhabitant in the designated area to perform patrolling duties. If the adult male refuses to perform these duties, he can be penalized with a fine. On the flip side, the public’s noncompliance with the male patrol appointee’s directions bears the same consequences as disobeying a police officer under the Indian Penal Code. People are thus effectively patrolled by private citizens who, unlike public servants, may not be held accountable for abuses of power.
In 2015, this law was used to sanction night patrols in Ludhiana and Jalandhar to stop incidents of desecration of the Guru Granth Sahib. It was used in 2018 in Kaithal “to check burning of paddy straw” and again this year “to curb incidents of theft and robberies.” All these cases appear to be flagrant breaches of fundamental rights to movement, privacy, and liberty.
India’s health emergency does warrant special measures and the desire to “seal all the entry and exit points of villages” may be necessary. But can the fundamental rights granted by the Indian Constitution be so easily abrogated by a deputy commissioner using powers designed to benefit an oppressive colonial regime? To appreciate these concerns fully, it is important to return to the historical context within which the PVSTA was formed.
In the early 20th century, pre-Partition Punjab was one of the epicenters of the Indian National Movement, and consequently a hotbed of the British Raj’s repression. Following the latter’s drastic clampdown on agrarian unrest in the 1910s, political activism was once again on the uptick. For instance, popular rebellions such as the Jat Paltan (1907) — which emerged in response to unpopular changes to land laws like the Punjab Land Alienation Act (1900) and the Colonization Bill (1906) — were mercilessly thwarted by the British Raj.
In 1914, 337 Sikhs, 27 Muslims, and 12 Hindus living in British India boarded the Japanese vessel Komagata Maru in order to emigrate to Canada. Only a few years back though, the Canadian government had amended its immigration laws to block the entry of Asian immigrants. So had officials in Singapore and Hong Kong. These people then set sail back to India. However, the British Government in India did not want to facilitate their re-entry either. Therefore, it passed the Ingress into India Ordinance. This entitled the governor-general of each province to pass orders restricting the movement of emigrants, imposing conditions on their stay in British India, and prohibiting them from entering specified areas. Any contravention of these orders attracted a one-year jail term.
When the Komagata Maru landed in Calcutta, all the passengers were kept as prisoners. They were to be returned to Punjab and interned eventually. Exasperated by torture and ill-treatment, the Punjabi detainees broke out in revolt at the Budge Budge bridge in Calcutta. The British Army resorted to force in response. Official reports put the number of deaths somewhere in the 20s, but the actual numbers were believed to be far more. It was a massacre.
Consequently, violence continued in Punjab for most of 1914-15. Close to 3,000 Sikh emigrants who returned to Punjab province were labelled guilty of sedition and restricted under the Ingress Ordinance. The use of Section 108 of the Code of Criminal Procedure Code, 1898, too was rampant. Everyone suspected to be guilty of sedition was required to produce a surety of good conduct for one year from the date of enquiry by the District Magistrate, failing which they could be imprisoned. The names of those required to produce surety was entered into a register with the local police station and surveillance was maintained. Notably, an author writing in the aftermath of the Rowlatt Satyagraha says that leading up to 1918 almost all behavior short of sycophancy was read as seditious.
Sir Michael O’Dwyer, lieutenant governor of Punjab province at the time, maintained a strict culture of repression and demanded emergency powers over and above the prevalent statutory framework. In fact, it was at his behest that Lord Charles Hardinge, then governor general of India, enacted the Defense of India Act, 1915 — a drastic statute that conferred wide-ranging powers on preventive detention, internment without trial, and restrictions on writing, speech, and movement. Also, to supplement the Criminal Procedure Code, the Punjab Province followed up with the Punjab Habitual Offenders Act, 1918, which allowed the district magistrate to restrict the movement of any habitual offender in addition to requiring a surety of good conduct. Disturbing peace or law and order qualified as a habitual offense.
It was against this backdrop of a colonial state’s struggle to impose its will on its subjects that the PVSTA was born. Punjab after all, was critical to the British Raj. Besides being home to several colonial officers and a supplier of agricultural produce to British industries, the “martial races” of the province were inducted in large numbers into the Colonial Army. The PVSTA therefore, was not a statute passed for administrative convenience. It was part of a broader apparatus to quell dissent, curb political activism, and maintain the supremacy of the Raj.
Similar colonial antecedents afflict the Epidemic Disease Act, 1897, which was passed by the British in response to the Bombay Plague, and was used to charge Indian freedom fighter Bal Gangadhar Tilak with sedition for the anti-establishment views expressed in his newspaper, Kesari. This very law is now being deployed in states like Maharashtra, Tamil Nadu, Karnataka, Kerala, Haryana, New Delhi, and Goa to keep a watch on citizens and to hold them in their homes. In Tripura, Chief Minister Biplab Kumar Deb has openly stated his government’s desire to “slap all possible charges under the penal provision of Epidemic Disease Act, including sedition charges, on anyone found hoarding essential commodities or creating artificial price hike.”
India’s retention of emergency powers — which were created to aid an exploitative colonial state — casts serious aspersions on its post-colonial promise. While we agree on the need for exceptional responses, an emergency state must not replicate a colonial one. The substantive ethos of a liberal democracy must survive the greatest of exigencies. The history of laws such as the PVSTA exemplify the scant respect for human rights in colonial India. However, a hundred years onwards, human rights occupy a central place in India’s constitutional scheme and cannot be wished away even in the midst of a pandemic-induced national emergency. It is incumbent therefore that the state continually seek to balance the breadth of its executive powers with respect for human dignity and freedom. As Hari Vishnu Kamath stated before the Indian Constituent Assembly: “Let us remember that a Constitution can be subverted not merely by agitators, rebels and revolutionaries, but also by people in office, by people in power.”
Ameya Pratap Singh is a DPhil Candidate at the University of Oxford (Area Studies).
Dhruva Gandhi is an Advocate in the Bombay High Court.