By Mazdoor Inquilab
The winter session of 2023 will go down in the parliamentary history of India as one of its darkest episodes. On December 16, while India and Bangladesh celebrated victory day, marking the surrender of Pakistani troops in Bangladesh, the Indian parliament was being cleansed of any opposition. Within days 141 members of parliament were suspended for arbitrary reasons. The suspensions cleared out most of the upper and lower house of any opposition to the BJP, turning parliamentary proceedings into a farce.
Not since the days of the emergency, when Prime Minister Indira Gandhi could pass laws standing alone in the hall and addressing the speaker, have we seen such a state of affairs. The ‘undeclared emergency’ of Narendra Modi has come a full circle.
The suspension of MPs was the pre-condition for the passing of a series of sweeping legal reforms. Within the winter session, the government passed a vital criminal law reform, abolishing the three fundamental criminal laws of India, the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act. In their place, the government has brought forth three new criminal laws. These laws were given Sanskrit names and supposedly ‘fix’ the old colonial architecture of Indian criminal laws, but in reality only repackage and add to the repressive colonial architecture of the three laws.
This sudden change will undoubtedly bring much confusion and chaos in criminal jurisprudence in India. However, this was not the only disaster to unfold at the parliament. On December 18, the Telecommunications Bill and the Post office bill were presented before parliament and passed without a murmur of protest. These laws are among the most draconian legislatures of their kind, paving the way for digital authoritarianism in India. Among the most troubling consequences of these acts, is the extension of old colonial British system of surveillance into the digital sphere. The government can legitimately spy on our messages, the government can read post and mail in the name of national security.
The acts increase the ambit of surveillance giving the state the authority to tap into digital devices, and give the state unprecedented powers to regulate online content, giving the state yet another means to censor critical opinion. Like China, now the Indian government can even block access to certain sensitive words from chat programmes. India already has one of the most undemocratic digital regimes in the world, having the largest number of internet shut downs in the world, with the telecommunications bill it will become no better than our authoritarian neighbor to the North in China.
The fact that such sweeping legislations could be passed so brazenly, the ease with which the parliamentary opposition could simply be swept aside, shows at once the farcical nature of Indian bourgeois democracy, as well as the ineptitude of the bourgeois opposition to guard the interests of the people. With such a weak shield against the reactionary battering ram of the BJP, the future of the people is bleak indeed.
The chain of events
Since its coming to power, the BJP has been building its influence over governmental departments and subverting institutions of the state to itself. So far, it has succeeded in subverting the election commission, the various tax enforcement authorities, and the judiciary. These institutions long considered a ‘pillar’ of Indian bourgeois democracy now work in the interests of the BJP and its Hindutva agenda.
During the winter session, the parliament ethics committee has shown itself to be subservient to the will of the BJP, when it recommended the TMC MP Mahua Moitra for suspension. The cause was a flimsy case made out for taking bribes. Mahua Moitra was a representative of a corrupt centrist bourgeois party which rules the Eastern state of West Bengal with an iron fist, but her suspension was not aimed at curbing corruption or for the interests of the people of West Bengal. MP Mahua Moitra was an outspoken and articulate leader who questioned the Modi government and his corrupt links with the oligarchical corporations, especially the Adani group. To silence her achieved a twofold objective, it cut out an important opposition leader in parliament, and it proved the loyalty of the parliamentary ethics committee to the Modi government.
The smoke bomb attack on parliament
This was only the beginning as worse was to come. On the December 13, the Modi government got the perfect excuse to destroy the opposition in the form of the smoke bomb attack. The perpetrators of this attack were inspired by the ideas of the revolutionary Bhagat Singh, the mastermind was connected with the others in this plot through a group linked with Bhagat Singh. The group also wished to air their grievances on issues of unemployment, corruption, and increasing authoritarianism in India under the Modi government. As noble as their intentions were, their methods can be said to be a failure. The smoke bomb attack failed to stir the masses of India like Bhagat Singh’s attack on the British imperial legislature. On the contrary, it made national security an excuse for the BJP to strike hard at the opposition.
Soon after the bomb attack, questions were understandably raised about how such a security lapse took place, with the possibility that it may have been allowed to happen. Questions raised were silenced by the speaker of the house, and MPs were suspended by the dozens.The suspensions were enough to stir the opposition into protests against the government, they were arbitrary and brazenly undemocratic. The protests only made it easier for the government to continue their suspensions. In the meanwhile, a full-fledged crackdown against the smoke bomb attackers were initiated with the mastermind eventually caught in Calcutta.
The culmination of the suspensions were the passage of three new criminal laws which replaced the existing criminal laws which have been in place since the 19th and early 20th centuries. This was shortly followed by the passage of the Telecommunication bills and the post office bill, these two new laws would push India towards digital authoritarianism and empower the government’s surveillance powers. These laws were passed with minimal opposition, in a house totally dominated by one party, the BJP. The Indian democratic farce was complete.
The aftermath
The suspension of opposition MPs is a message by the BJP that they control the parliament and its regulating institutions. At any time if they so please, they may suspend the opposition and bulldoze through whatever legislation they desire. Unlike the farm laws, the passage of the criminal laws, the telecommunications and post office bills did not invite massive public backlash. The government stands emboldened today, the BJP stands stronger now, entrenched further by victories in three recent state elections, for the state of Rajasthan, Chattisgarh and Madhya Pradesh. Capitalizing on weak organizational strength of the Congress party, and anger among the scheduled tribe populations who account for a large minority in Madhya Pradesh and Chattisgarh.
The failure of the Congress in these three state elections, coupled with the disaster that unfolded in the parliament has sent the bourgeois opposition flailing and demoralized. The impact on the people at large will be far worse than for the oligarchs of the Congress and its allies.
It is important to discuss the impact of the sweeping new reforms brought about by the BJP in the name of ‘decolonizing’ Indian laws. The reality will show, that far from decolonizing the Indian legal system, it only strengthens existing infrastructure of oppression, which have been inherited fully from the British Raj.
The new criminal laws
Three fundamental criminal laws in India are the Indian Penal Code, which was promulgated in 1860, the Indian Evidence Act which was promulgated in 1872, and the Code of Criminal Procedure, which was first promulgated in 1882, and last amended in 1973. These laws were framed during the British Raj by colonial authorities chiefly to administer colonial rule, with crime and punishment conforming to the interests of the colonial state and colonial Victorian British sensibilities. These laws aimed at punishing homosexuality, and anti-colonial dissent under the most vaguely worded provision that is sedition. There was need to rectify the criminal laws, updating them to modern times and modern necessities. However, what we got instead were three laws with Sanskrit names, and a very British character.
The three laws are,the “Bharatiya Nagarik Suraksha Sanhita” which replaces the Code of Criminal Procedure, the “Bharatiya Nyay Sanhita” which replaces the Indian Penal Code, and the “Bharatiya Sakshya Sanhita” which replaces the Indian Evidence Act. One can summarize these laws as ‘copy and paste,’ for both in essence, and in action the new criminal laws regurgitate the old, keeping their essence and most of their texts intact, but covering it in nationalistic and traditionalist rhetoric. For instance, the law does away with the provision of sedition under section 124A of the Indian Penal Code, but retains the essence and effect of the provision in the new Bharatiya Nyay Sanhita. Rather than repeal sedition, the new law broadens the scope of sedition, and includes financing what the law defines as ‘subversive’ acts.
The new laws are also left with gaping holes, such as the ham-handed way in which homosexuality was decriminalized, which is an inverse reflection of the ham-handed way in which gay sexuality became criminalized under section 377. The BJP government has always been ideologically opposed to the decriminalization of LGBTQ, and generally averse to anything it views as ‘western’ attacks on ‘traditional values.’ The new law has no provision that criminalizes ‘unnatural sex’, but neither does it lay any ground for punishing non-consensual sexual acts. As a result rape cases perpetrated by men against other men are no longer illegal!
The troubles don’t end there. The new law provides for exempting doctors from cases of medical negligence. Clause 69 of the new law provides punishment for the crime of ‘deceitful promise to marry’. Whatever may be the legislative intent behind this provision, it is without a doubt going to be used against supposed cases of what the Hindutva proponents call ‘love jihad’. Inter-faith marriages between Hindus and Muslims have always been targeted for hateful attacks. Right-wing propaganda projects all such marriages as some kind of holy war conducted by Muslims to lure Hindu women for the purpose of conversion. Now, a new legal weapon has been provided to such allegations, and a recipe for harassment of such couples.
The Telecom law
Since the bill was written, it raised concerns among digital activists in India. The bill was first presented before the parliament in 2022 but was withdrawn. A year-long ‘discussion process’ supposedly went on, with the final Telecom bill of 2023 being prepared for presentation in the winter session of 2023. The government was preparing the ground for the right condition to present it again. The winter session amidst the mass suspension of opposition MPs provided the perfect conditions for this.
The bill had laid down the groundwork to turn India into a surveillance state, giving the government wider powers to regulate online content, stamp out dissent from the digital sphere, and spy on encrypted messages on chat programs. The government already uses spying software such as Israeli-made Pegasus, which has been confirmed for its use against activists and opposition leaders. However, the legality of such technology was suspect, the new telecommunications act will empower and embolden the government further. Whatever limit may have existed in the past, no longer exists now.
There are some who may believe that over the top (OTT) services are excluded from the ambit of the bill, but this hope is unfounded. The text of the bill lays it out, The Union government may prescribe licence conditions that may vary as per “telecommunication service” [Section 3(1)(a) and Section 3(1)(b)] and require prior registration that may be used for the government to weaken privacy and increase snooping in future. While the phrases “OTT,” “Messaging Services” or even “Email” are not expressly mentioned in the Telecommunications Bill as in the draft version, they at the same time have not been expressly excluded from the definition of “telecommunication service” which means, “any service for telecommunication” [Section 2(t)].
Despite what the government claims, the new telecom bill strengthened and extended powers of interception in the old telegraph act. This is first done through powers to notify standards and conformity assessments that will include encryption [Section 19(f)]. This may even be under grounds of national security [Section 21]. Standard setting powers are especially dangerous as they may be used to create backdoors, introduce message traceability (identifying the author of a message), or to create block lists of words (as is done in China on WeChat), thus completely bypassing encryption technology. This becomes clearer when you look at the powers of interception that require intercepted messages to be disclosed in an “intelligible format” [Section 20(2)]. There are no procedures and safeguards in the text of the law and the existing procedure under Rule 419-A of the Telegraph Act, that has been abused, will continue [Section 61]. For instance, the Government of India even now refuses to provide aggregate data on the number of interception orders that it issues. It is a completely unaccountable and secretive system of surveillance without any oversight by courts or Parliament that is being made more severe without any reform.
It must be remembered that India already has a very undemocratic digital infrastructure, the telecommunications bill has only made things worse. India has the shameful distinction of being the country with the highest number of internet blackouts in the world, thanks to its actions in the North East and in Kashmir. The power to impose such blackouts had been challenged before the courts, but the new law restates the state’s ability to impose blackouts without any statutory safeguards.
While these are the worst aspects of the new law, the problems with the bill don’t end here. The bill also makes the biometric identification card, Aadhar, mandatory for availing digital services. The definitions are left vague and unclear, as are the parameters for the imposition of penalties and fine, which are all recipes for the creation of an intrusive and harassing digital regulation apparatus. Such a law could only be made and passed in the absence of opposition, because of the mass suspension of MPs.
The Post Office bill
The third dangerous law pushed forward in this session, was the Post Office Bill. Coming in the heels of the telecom bill and three new criminal laws, the Post Office Bill seeks to replace the Indian Post Office Act of 1898. The old colonial system allowed for interception, the current laws only strengthen these colonial powers.
The bill allows the interception of articles transmitted via post on grounds such as security of the state, friendly relations with foreign states, public order, public safety, or contravention of the provision of the bill or any other laws. The vagueness of the provisions would allow the state not only to crack down on dissent against itself, but possibly even dissidence against foreign states with which India enjoys ‘friendly’ relations. The new law would also empower officer-in-charge appointed by the Central government to intercept, open or detain any postal article on the same grounds. The bill further exempts officers from prosecution, pertaining to its services.
The bill has been rightly criticized for expanding surveillance, its vagueness and lack of clarity makes the new law a tool for arbitrary actions of surveillance. There is no clarity on what an emergency measure might be, there seems to be no cap on the powers of an office in charge, and thereis no grievance redressal mechanism in the new law. Privacy in postal correspondence would be ended by this law.
These attacks against privacy are taking place even after the Supreme Court had recognized privacy as a fundamental right.
Conclusions
The crushing defeat of the bourgeois opposition in parliament can be contrasted by the inspiring victory of mobilized masses of farmers in 2021. The withdrawal of the three farm laws after managing to push them through in the parliament, quite as arbitrarily as the criminal laws and telecom bill.
The massive defeat that the BJP suffered from mobilized farmers on the street was far more impactful than any state election the party has lost in the last five years. Rather, the defeats in the state elections over the course of the last three years are a direct consequence of the demoralization of the party and its consequent disorganization.
Before the farmer’s protest, it was farmers who mobilized to protest the new land acquisition law proposed by the Modi government. This too resulted in the government withdrawing the land acquisition bill. These victories were not earned by parliamentary tactics, but by tactics of mass mobilization and protest. It was through popular struggle, often times under independent leadership, separate from the mainstream bourgeois parties.
Farmers unions like the All India Kisan Sabha played a leading role in the mobilization of agricultural workers, farmers and share croppers throughout the country. The movements for land rights and struggles of scheduled tribes for land rights were often led by community leaders, or activists working at the grassroots level. Their successes are not owed to the parliamentary opposition.
It is also important to emphasize here, the bankruptcy of the tactics of individual terrorism. Lenin had already criticized tactics of individual terror in his article on Revolutionary Adventurism, all the way back in 1902. The arguments still hold validity today, “At a time when the revolutionariesare short of the forces and means to lead the masses, who are already rising, an appeal to resort to such terrorist acts as the organisation of attempts on the lives of ministers by individuals and groups that are not known to one another means, not only thereby breaking off work among the masses, but also introducing downright disorganisation into that work.”
The actions of the smoke bomb plotters deterred nothing, but gave the government an excuse to tighten security, crack down on the opposition, and arm itself more to crush dissidents. Compared to the successes won through mass mobilizations and strike actions, such an adventurist action achieved the opposite. Petty bourgeois adventurism failed in 2023 as badly as it did in 1902.
What the smoke bomb attack does highlight, is the discontent among the youth, and proof that they can take arms against the state. This shows great revolutionary potential, but it must be given the right leadership and direction to be fully realized.
