GEORGI DIMITROV, the outstanding Bulgarian Communist leader who had presided over the Seventh Congress of the Comintern and piloted the tactics of United Front to fight fascism, had earlier been an accused in the Reichstag Fire case and imprisoned by the Nazis after they had come to power in Germany in 1933. Dimitrov had rejected the offer of a lawyer provided by the Court and had defended himself during the trial. In his defence he had wanted to cross examine Herman Goering, top Nazi leader and Hitler’s war minister, and his request had been granted by the Court. So powerful had been his cross examination that at one point Goering was angry enough to exclaim: “You scoundrel, you should be hanged”. But Dimitrov had calmly and incisively exposed the phoney nature of the case against him and against the other accused Communists, and had been released by the Court.

The contrast between the conduct of the German judge who allowed Dimitrov to summon and cross examine a top Nazi leader and that of the Indian judiciary which has not even granted bail to some young accused persons, whose trial has not begun despite their languishing in jail for over six years, could not be more striking. The idea of one such prisoner summoning Amit Shah to Court and cross examining him, is simply unimaginable. The question arises: why this difference between the two cases?

One does not even have to go so far back in time. Just the other day, a Court in the US had the “temerity” to strike down Donald Trump’s original tariff proposals as being invalid for violating the provisions of the US Constitution (which incidentally is why the Indo-US Trade Treaty is being renegotiated at present). Trump just fretted and fumed but could do nothing about it. The question again is: why this difference between the US judiciary and the Indian judiciary?

Why does the Indian judiciary kow-tow to the executive to an extent not seen even in Nazi Germany, admittedly in its early years? In fact the Weimar Republic, established in 1918, had been just 15 years old when the Reichstag Fire trial had begun, while in India we have had five times as many years of working with a republican Constitution, which should have made our institutions, including the judiciary, far more robust. Why is this not the case?

Fascism or neofascism is a highly modern phenomenon, which is based on an alliance between monopoly capital and the fascist “upstarts” (to use Kalecki’s term). It arises only in the era of monopoly capital, and that too in a period when the system runs into a crisis and is threatened with a loss in its legitimacy. In fact the difference between a Marxist understanding of fascism and the liberal understanding of fascism lies precisely in the former’s recognition                                                                                                                                                                                                                                                                                                                       of fascism’s role in defending the hegemony of monopoly capital by providing a distractive discourse. This is even more true in the context of neofascism than of fascism, since the latter, unlike the former, did overcome the problem of unemployment while providing a distractive discourse. It did so through the brutal means of preparing for war via a massive increase in state military expenditure, financed by a fiscal deficit.

But while fascism and neofascism are themselves modern phenomena, they invoke ideas and concepts that represent pre-modern attitudes. The precise pre-modern prejudices they invoke differ from country to country depending on its past. Thus the “other” against whom hatred is sought to be generated today within the majority may be the immigrants in Europe consisting of blacks and Muslims; but they consist of Dalits and Muslims in India who are not immigrants but local inhabitants who have been residents in the country for millennia. The myths spun against the “othered” community likewise differ from country to country, representing in every case a travesty of the history of that country but differing across countries. This difference is what accounts for the country-specific nature of fascism and neofascism.

Thus while all fascism and neofascism have certain obvious common features, such as extreme repression of the population, a close nexus with monopoly capital, the build-up of a personality cult around the “leader”, and the generation of hatred against a hapless minority, they nonetheless differ from country to country depending on its specific context. Fascism in short is a modern phenomenon that uses as its means of conceptual production a whole bunch of medieval prejudices; the specific nature of the social counter-revolution it unleashes is determined by these prejudices.

The obvious medieval prejudice used by neofascism in India is looking upon members of castes that are placed supposedly “lower” in the social hierarchy as being inferior human beings. This claim may appear odd since the ire of the neofascists in India is apparently directed against the Muslims; but there is a seamless transition from prejudice against “lower” castes to prejudice against Muslims for two obvious reasons: one, a large segment of the Muslim population consists anyway of the progeny of persons seeking in the past to escape caste oppression by changing their religion; and two, the perception of inherent inequality between persons gets carried over from the one case to the other. The observed neofascist lack of concern for the rights of the individual in short is a hangover of the inequality of the caste-system.

It may be argued that all feudal societies are based on the presumption of inherent inequality between human beings, so that the divergence in the attitude of the elite, towards common people and those in authority, is no different in India compared to countries of the western world; the judiciary’s kow-towing to the executive cannot therefore be explained simply by referring to inherited feudal values like those underlying the caste system.

In several western countries however there had been thorough-going bourgeois revolutions that had dealt powerful blows against inherited feudal values and created a more widespread belief within the elite about the equality between individuals and hence about the sanctity of individual rights. In two of those countries, England and France, bourgeois revolutions had even witnessed the execution of ruling monarchs on the basis of ideas of equality of individuals, ideas that had gained widespread appeal. No ascendancy, on a comparable scale within the elite, of bourgeois ideas of social and political equality had occurred in India; bourgeois ideas of course never extend to economic equality.

Consequently, the rights enjoyed by the people under the secular and democratic Constitution in post-independence India always run the risk of being snatched, without the judiciary coming to the defence of these rights; and, needless to say, the risk is infinitely greater under a neofascist regime whose natural predilection is anyway towards a curtailment of people’s rights. In a very crucial sense therefore the struggle in India today is over the defence of the Constitutional rights of the people and this struggle encompasses a struggle to inculcate a less hierarchical perception of the people within the judiciary.

Two recent instances of snatching of people’s rights by the regime in power illustrate the point. The first relates to the abrogation of the Mahatma Gandhi National Rural Employment Guarantee Scheme, which had, through a unanimous resolution of Parliament though admittedly not Constitutionally, guaranteed 100 days of work on demand to every rural household; this right was snatched away one day through a mere voice vote in the Lok Sabha without any discussion. The other instance relates to the attempted disenfranchisement by the Chief Election Commissioner of as many as 130 million voters, which entails an abrogation of a Constitutionally guaranteed basic right that underlies any democracy. The implicit assumption behind such abrogation is that the people should be grateful for whatever is given to them instead of demanding rights. What is pertinent however is that the judiciary did not intervene to defend the rights of the people in either case.

The judiciary’s attitude comes out most disturbingly in the case of the disenfranchisement of voters in the West Bengal by-elections that are due on October 6. The Supreme Court has taken the position that since these are only by-elections there need not be any great hurry in the Court’s adjudicating disenfranchisement complaints. This is, first of all, not true: a by-election result in Britain has just led to a change in the country’s Prime Ministership. Besides, this betrays an attitude on the part of the judiciary which expects people to remain content with whatever rights they are given rather than demanding what is Constitutionally their due.

If democracy is to be preserved in the country, then the struggle for democracy, instead of accepting the attitude of the judiciary as it exists at any given time, must incorporate a struggle for sensitizing the judiciary to the fundamental need for consciously going beyond an inherited hierarchical perception of society.