The backdrop

The buzzword, anti-national has risen to new ranks in the Indian political vocabulary. It roughly began with the killing of a rationalist, M.M. Kalburgi on August 30, 2015. The word anti-national gained prominence as a reaction against actor Aamir Khan and his wife regarding their statements about India being an (in)tolerant nation in November 2015. The public debate on (in)tolerance continued with literary figures returning their awards as a protest against the government for indulging in majoritarian politics and celebration of the killing of a Muslim man for allegedly eating beef. Simultaneously, the students’ movement was labelled anti-national after the suicide of Rohith Vemula, a student from a minority community who took matters in his own hands after being systematically ostracised by dominant caste peers and university administration. The tagging and branding of persons as anti-national reached its climax on February 9, 2016, when sedition charges were filed against the students of Jawaharlal Nehru University (JNU) over a doctored video. Meanwhile, the state of Jammu and Kashmir – one of the highest militarised zones in the world – was on a warpath for over 50 days after the death of a rebel leader, Burhan Wani. The series of events continued with more killings and public lynchings of minority castes and classes by self-proclaimed cow vigilantes. Furthermore, on September 5, 2017, Gauri Lankesh, a journalist was shot dead allegedly for her anti-national activities and writings.

The above-mentioned instances are just the headlines and flash points in the recent grand discourse of being anti-national in India. If one tunes in to or subscribes to Indian social or mass media, the word anti-national has infiltrated the entire country. Innumerable open letters have been written. Countless archaic criminal defamations and sedition charges have been filed against civil societies, human rights groups, media organisations and other stakeholders of democratic dissent and opposition. The rise of military jingoism and pressing slogans such as ‘bharat mata ki jai’ are forced upon by the proponent of Hindu Nationalism. Furthermore, the presence of fake news and character assassinations of persons by social media trolls have reached new heights. In short, the last three years of public political discourse in India has been dominated by the term anti-national. The discourse is split into binaries of accusations and ownership of ideological identities particularly with regard to being nationalists or (anti)nationalists.

Thus, the term anti-national has been a matter of contestation in the private and public political life in India. In our troubled times, the meanings of many terms like (in)tolerance, secularism, freedom have also achieved a status of meaning entirely different from their original preamblic existence. Similarly, the term anti-national as a distinct political ideology has also attained an unknown new meaning for the apologetics of nationalism in the present day. Hence, here I will be revisiting and presenting the less talked about unique constitutional antecedent to rediscover the meaning and definition of the word anti-national during the constitutional emergency of 1975-1977.

The constitutional antecedent

During the emergency, many changes were introduced to the constitutional scheme. One of the important changes was an introduction of a saving clause to the doctrine of Right to Constitutional Remedies. In the constitutional journey of Indian democracy, saving clauses have been used for various reasons on the Part III of the Indian constitution which talks about people’s Fundamental Rights to consolidate state power. A saving clause in a simple sense is a sort of exception to the general rule and norm. It has been regularly used as a tool for centralising the federal system and acquisition of property. But, Article 31D was different. The heading of this article reads, saving of laws in respect of anti-national activities. It was there, for the first time, that the word anti-national appeared in the text of the constitution. This article is not a part of the constitution today as it was immediately repealed and omitted after the emergency by section two of the 43rd Amendment Act, 1978. Nevertheless, in the short life of its existence, it gave a broad summary of what was considered anti-national by law.

Article 31D was introduced by the section five of (in)famous 42nd Amendment Act, 1976. This article is often obscured by the unconstitutional judgement of ADM Jabalpur v. Shivkant Shukla [1976]. The first clause with two sub-clauses namely (a) and (b) of repealed and omitted provision read as follows:

Article 31D. Saving of laws in respect of anti-national activities. –

(1) Notwithstanding anything contained in article 13, no law providing for – (a) the prevention or prohibition of anti-national activities; or (b) the prevention of formation of, or the prohibition of, anti-national associations, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, article 14, article 19 or article 31.

The first clause of the article began with the word notwithstanding. It reaffirmed the assertion that an exception is being carved out of the general rule, specifically about Article 13, which is also a part of Part III of the Indian constitution. Thus, the new law (i.e. Article 31D) was to be saved from the mandate of Article 13(2), which read as follows:

Article 13(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

The state, by 42nd Amendment, introduced a law which derogated the Fundamental Rights of the people. The derogation here was not for the people who were detained, but rather a generic prevention and prohibition of anti-national activities and formation of anti-national associations. The sub-clause (b) also clarified the saving clause that anti-national activities and associations were illegal, and the protection of above mentioned Article 13(2) is not applicable to Right to Equality (Article 14), Right to Freedom (Article 19) or the then in existence Right to Property (Article 31). If anyone who was indulging in alleged anti-national activities or was associated with anti-national associations, the Fundamental Rights were no longer available along with any Right to Constitutional Remedies. Also, the saving clause specifically used the word law instead of reasonable law to bypass any judicial intervention and interpretation of parliamentary action even if it abridged fundamental rights.

The second clause of Article 31D precluded state legislatures from making of laws related to prevention and prohibition of anti-national activities and associations. The second clause read as follows:

Article 31D (2) Notwithstanding anything in this Constitution, Parliament shall have, and the Legislature of a State shall not have, power to make laws with respect to any of the matters referred to in sub-clause (a) or sub-clause (b) of clause (1).

It is one of the important provisions of 42nd Amendment that is often overlooked in the grand debate of federalism around the emergency. The reason being that Article 31D was repealed and omitted by 43rd Amendment. The constitutional experts focus mostly on the leveller of 44th Amendment Act, 1978. It is a trivial point yet a significant one that the conversation surrounding constitutional law has not attributed much importance to the implementation and repeal of the Article.

The third clause added an additional security net to the retrospective laws related to anti-national activities and associations.

Article 31D (3) Any law with respect to any matter referred to in sub-clause (a) or sub-clause (b) of clause (1) which is in force immediately before the commencement of section 5 of the constitution (Forty-Second Amendment) Act, 1976, shall continue in force until altered or repealed or amended by parliament.

The third clause upheld the retrospective validity of laws made in consonance with Article 31D and in derogation of rest of the Part III (Fundamental Rights) of the constitution. One such instance was that of Unlawful Activities (Prevention) Act, 1967 read with Criminal Law Amendment Act, 1972. The Maintenance of Internal Security Act, 1971 was a principal benefactor of this scheme. The Article 31D (3) also goes against the legal spirit and convention of invoking and upholding criminal statute retrospectively and against protection offered against offences under Article 20 of the Indian constitution.

How were the term anti-national activities and associations defined? What were the anti-national activities? What were anti-national associations? Before looking at the specific statutory meanings of the terms anti-national activities and anti-national associations, it is important to understand what the word association stood for in Article 31D. The sub-clause (a) of the fourth clause describes the term association as an association of persons. It is different from the association of people or individuals. A person legally can be an artificial entity (a company, mosque, idol in temple etc.) as well as a natural entity (citizen or denizen) or people. An artificial person doesn’t have Fundamental Rights in India and other common law countries, courtesy of the rationale laid in a nine-judge bench decision in State Trading Corporation of India v. The Commercial Tax Officer [1964] with separate dissents of justice K.C. Dasgupta and J.C. Shah. Hence, the provision of Article 31D (4) (a) can be read considering legal rights, if not fundamental rights.

It is interesting to note that the then minister of state for law and justice, Dr Sarojni Mahishi responded to the apprehensions in the house, when Article 31D was being debated, by saying that calling of trade unions, associations of minority groups, universities endorsing free speech and expression, shall not come under the broad ambit of the word anti-national. Eventually, however, it did come to cover everything which she was defending.

Now, the fourth clause along with its sub-clauses and their sub-sub-clauses broadly presented the meanings and connotations of the term anti-national activities and anti-national associations. The frightful clause of the Article 31D read as follows:

Article 31D (4) In this article, – (a) “association” means an association of persons; (b) “anti-national activity”, in relation to an individual or association, means any action taken by such individual or association- (i) which is intended, or which supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India which incites any individual and association to bring about such cession or secession; (ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation; (iii) which is intended, which is part of a scheme which is intended, to overthrow by force the Government as by law established; (iv) which is intended which is part of a scheme which is intended, to create internal disturbances or the disruption of public services; (v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt the harmony between different religious, racial, regional groups or castes or communities; (c) “anti-national association” means an association – (i) which has for its object any anti-national activity; (ii) which encourages or aids persons to undertake or engage in any anti-national activities; (iii) the members whereof undertake or engage in any anti-national activity. The sub-clause (b) of the clause (4) broadly defined the anti-national activities in five sub-sub-clauses (i)-(v). The sub-clause (c) of clause (4) stated meanings of the term anti-national associations in the sub-sub-clause (i)-(iii) of the article 31D.

The core of the provision was the five points of anti-national activities. First, on intentions or and actions of solidarity to and towards cession and secession of territoriality of Indian State. Second, any activity which disclaims, questions, threatens and disrupts the sovereignty and unity of the country. Third, any intention of coup d’état. Fourth, intentions of creating and disrupting public services with the vaguely phrased internal disturbances. And fifth, the perpetrations of religious, racial, regional, caste and communal hatred. The persons who had association or membership of any of the five-point objectives or who would abet the activities were to be considered anti-national by law.

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The political opposition back in the day (many of them part of ruling class today) suffered preventive detention on the grounds of being anti-national by law. It was a time when branding of anti-national was decided by law and constitution, unlike today, where the anti-national label is awarded to persons extra-constitutionally by the television news anchors and journalists.

It is quite ironic that the usage of the term anti-national was not popular during the emergency, even when the term is present in the constitution itself. A more sophisticated terminology used at that time was that of anti-social elements. Perhaps, it provided a benign dehumanising touch by calling persons as elements (things) and activities were considered not as opposed to the nation but to the society. Sadly, the present day political drama is hell-bent on transforming a famously plural society into a singular homogenised nation.

The reason why Article 31D is mostly hidden in the past and is less talked about (as mentioned above, apart from the lack of spotlight on the 43rd Amendment) is that of its omission. The terms omitted and repealed have different meanings and ought not to be used as synonyms by the statutory interpreters of laws. The difference was somehow vaguely dealt with in the Rayala Corporation Case [1970]. Article 31D was omitted and was considered repealed by the 43rd Amendment. The Indian constitution is full of such common errors of legislative drafting. Nevertheless, the point here is the omission by the amendment and the focus on the landmark judgment of ADM Jabalpur v Shivkant Shukla left Article 31D in less public attention and discourse.

What was wrong with the spirit of the Article 31D? In the Statement of Objectives and Reasons for the 43rd Amendment, the then law minister Shanti Bhushan states in his last point on December 12, 1977, as:

Article 31D confers special power on Parliament to enact certain laws in respect of anti-national activities. It is considered that these powers of Parliament to make laws for dealing with anti-national activities and anti-national associations are of a sweeping nature and are capable of abuse. It is, therefore, proposed to omit article 31D.

In general, the Article 31D was used against the political opposition. The (in)famous laws such as Maintenance of Internal Security Act, 1971 was amended under the constitutional garb of Article 31D to stop the alleged anti-national activities.

Anti-national: Then and now

Globally, the party politics in democratic settings suffers from a sort of amnesia to its location and positions about public policy when in opposition. For example, the Nehruvian government who fought and resisted the Government of India Act, 1935, but later became the vocal proponents of its advantages in the Constituent Assembly. The decisions and inclinations regarding any law when a political party is in power generally, are in contrast to public stands adopted when in opposition. It is a widely observable phenomenon. The parliamentary debates are mostly full of researched speeches of who said what, when in power or in opposition, in contrast to their present day stand on a public law or policy. Similarly, the word anti-national also becomes relative to the party in power and opposition.

The examples of such oscillating behaviour of changing stances in politics is not a unique occurrence. In the same way, naming anti-nationals suffers from the same episodic defect. For example, Dr B.R. Ambedkar used the word anti-national in his famous concluding speech as the final reminder in the long speech on the eve of adopting the Constitution in the Constituent Assembly on November 25, 1949. He used the word to indicate the caste system. He said,

The castes are anti-national. In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity equality and liberty will be no deeper than coats of paint.

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But, such is the irony that the Indian nation is defined by the idea of caste. Furthermore, Nehru branded the first democratically elected Communist Party of the world as having an anti-national existence and the state legislative assembly was subsequently dissolved. Initially, Nehru also believed that the demands of linguistic states were anti-national and presented a threat to national integrity and that of secession or cession. Subsequently, the Syndicate of Congress Organisation led by K. Kamaraj named the Requisitionists of Indira Gandhi as anti-national.

Later, the legacy party that is Congress (I) named every other political force as anti-national that created alleged internal disturbances and that resulted in the tragedy of emergency and birth of Article 31D. The successive Janta government invoked anti-national charges against Indira Gandhi with series of alleged vendetta criminal cases in various courts. The return of Indira Gandhi in power again reversed what it meant to be known as and called anti-national. The aftermath of Operation Thunderstorm and Blue Star which led to the assassination of Indira Gandhi, in 1984, by his Sikh bodyguards, led the radical people in government to brand all of the Sikh community as anti-national.

The next decade was dominated by the rising radicalism of Hindu nationalism and witnessed the demolition of Babri Masjid. The Muslims in India were also branded anti-national and this led to riots in various parts of the country. In the meantime, the issue of reservation was at its peak and people against the policy were called anti-national. It is important to note that the categories of anti-national and anti-social were very porous and were not so rigid, as it can be observed today. This was primarily because public discourse judged persons or associations as for or against the society, rather than against the contested term nation. The next decade and millennia, with the rise of globalisation and economy, saw corruption as the biggest menace to society or nation. The political and bureaucratic corruption became the new black and was associated with anti-national. The rise of Aam Aadmi Party (AAP) and reclaiming of the Gandhian swaraj (self-rule) became a matter of contestation, and the party in power called the activists such as Anna Hazare and others anti-national over the Ombudsmen (Lok-Pal) law. Lastly, when the AAP attained an absolute majority in Delhi, the Congress and the Bhartiya Janta Party (BJP) became anti-national. Now, when BJP is in power in Centre and is constantly achieving a majority in the various state legislative assemblies, every form of dissent is termed anti-national.

The above examples establish that whosoever is opposing the government shall be christened as anti-national or anti-social. The evidence is sufficient to conclude that irrespective of the political leanings, the label of anti-national shifts as the government changes or with the change in the dynamics of party politics. The only difference in the present day is that the word anti-national has become very vulgar and public because of the new communication systems and because, mass political polarisation is easy than ever before.

What if the five-points of anti-national activities of Article 31D are appropriated and read in the present circumstances? First, the moral right and advocacy for people in Kashmir to national self-determination of Jammu and Kashmir would be considered as an anti-national activity. Second, the entire aftermath of JNU episode would be considered as an anti-national activity and association by law. The writing and speaking academically to question the idea of sovereignty can be termed as anti-national. Even talking about coups, the infamous spooked story of Shekhar Gupta in Indian Express was met with high temperatures. Intriguingly, the then chief minister of Gujarat (now prime minister of India) openly supported Gupta. The phrasing of the term internal disturbances has a notorious past and can be traced as one of the prominent reasons for the emergency. Disruption of public services has never been considered anti-national when it is for the godman messenger of god (Ram Rahim Insaan) or a protest by Jats, Gujjars or Patidars (dominant castes). Thus, it is fortunate that the article was reversed so soon after it was incorporated. The fear remains that everything which was part of the omitted provision of Article 31D is deemed to be anti-national today by the jingoist masses and hero worshipers of the prime minister. This is more dangerous than the inkling of the word anti-national in the constitution.

In conclusion, the meaning of the word anti-national activity has come a long way from Article 31D. But, the reminiscences of its existence faded quickly. It is the events of last three years of deaths, killings, suicides, returning awards, criminal defamations on various known and unsaid grounds that perpetrates the same fear which Article 31D represented. And hence, it is only in this sense that the present time can be equated with the emergency. Also, the episodic nature of party politics and, to some extent, people’s politics is such that one who opposes the power shall be deemed as anti-national, irrespective of the content presented and government represented.

Pradyumna Anil Purohit is an M.Litt. Candidate (Legal & Constitutional Studies) at the Centre for Global Constitutionalism (Andrews), University of St. Andrews.