Arvind Narrain: India’s Undeclared Emergency : Constitutionalism and the Politics of Resistance, Chennai (Context, an imprint of Westland Publications Private Limited) 2021.
“The Dual State” is being rediscovered. Ernst Fraenkel’s study of the Nazi state, written in Germany in 1938 and adapted while in exile in the US, offers an analytical tool for understanding current processes by distinguishing between the normative state and the action state. In Die Zeit, Heinrich Wefing refers to an essay by Aziz Huq, which applies Fraenkel’s concepts to the US under Trump. A Polish constitutional lawyer had already drawn Wefing’s attention to the “dual state” in order to understand the restructuring of the Polish state.
In fact, the US under Trump is not the first in the shift that some describe as authoritarian and others as fascist. It does have a special charisma and therefore serves as a model for the new order elsewhere. But the US example also distracts attention from the more quotidian and familiar processes near us. In many ways, the measures taken by other governments, less spectacular and theatrical, can draw our attention to how the transformation into a dual state is taking place.
Arvind Narrain, an Indian lawyer, employed the concept of the dual state in his book “India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance” to describe developments in contemporary India. India under the Hindu nationalist government of Narendra Modi could be considered the most successful and internationally least problematized example of the establishment of a dual state.
Narrain argues that India’s constitution has always combined both tendencies of the dual state, but that under the BJP (Bharatiya Janata Party), which has been in power since 2014, the prerogative state has increasingly overshadowed the normative state – made possible by laws such as the UAPA (Unlawful Activities Prevention Act), which expand executive powers, and executive measures that are increasingly exempt from judicial review.
Narrain defines the concept of the prerogative state, following Fraenkel, as field within the state in which the executive acts without restrictions and outside or above legal constraints and constitutional processes. He sees the Indian prerogative state particularly in the use of (legal) preventive detention, in national security laws, and in extraordinary executive orders. The latter increasingly override judicial reviews of executive actions, but also fundamental safeguards in criminal law. The police carry out arbitrary arrests and detentions without any significant judicial control. The executive branch issues ordinances and administrative orders that circumvent legal safeguards. The reluctance of the judiciary to control such abuses leads to a situation in which institutions and individuals are subject to arbitrary state oppression. This establishes the prerogative state in Fraenkel’s sense.
Narrain advocates a strategy of “constitutional resistance.” In 2021, he was still confident that citizens, civil society, lawyers, and democratic institutions could and would defend the normative state.
Now, however, it is becoming increasingly clear that the dual state promises not only the dismantling of judicial review of executive powers, but also impunity for offenses and crimes committed by civil society actors, always and everywhere. In India, these include lynchings of Muslims and pogroms against them. The dual state is always a state of complicity. And it can certainly be democratic. The Indian example also points to this. There is no need for the Modi regime to abolish democracy, because the Indian dual state enjoys broad support among large sections of the population, which is also reflected in the elections. The authoritarian or fascist turn does not require a dictatorial form of government. This is precisely what makes Fraenkel’s concepts so relevant and important for the German and European present.