Article published in the Dec 25, 2016 issue of ‘The Week’ magazine.
Space for democracy is shrinking
By H K Dua
Strength and quality of a democratic polity in a large measure depends on the functioning of the constitutional institutions — Parliament, the Executive and the Judiciary. Over the last 70 years since Independence these have declined in their effectiveness and prestige.
Parliament and state legislatures no longer enjoy the respect of the people who in the initial years of Independence used to look to them with awe and sometimes with reverence. Unchecked, Influence of money, criminalisation of politics and demonstrative disregard of democratic norms and rules have led to internal decay of Parliament and State Assemblies. The Executive is callous, distant from the people and indifferent to their problems. The people still look to the court as the last hope but overburdened with crores of cases and some shortcomings, it is unable to dispense justice to the people in time and at affordable cost.
While these major organs that run our hard-earned democracy are fast losing public trust, occasionally they are getting into inter-institution confrontational mode and often turf wars which further reduce their effectiveness. These turf wars are exploited by ambitious political leaders who on coming to power with sizeable mandate often misread it and try to consolidate their rule or expand their authority. Sometimes they begin to think that they are above the institutions that are supposed to serve the public interest.
Indira Gandhi after the 1971 ‘Garibi Hatao” election was on the top of the world. The victory in war with Pakistan and the liberation of Bangladesh made her feel that she had become a ruler whose writ these institutions won’t be able to question. After victory in the Bangladesh war, Mrs Gandhi began speaking about “committed press”, “committed judiciary” and “committed bureaucracy”. She wanted to be an unquestioned leader of the land. Mrs Gandhi did not like the press which did not sing her praises or the judges inclined to exercising independence of mind, and the bureaucrats who did not toe her line.
To prevent the Supreme Court from blocking her way, she tried to pack the court with obliging judges. With a vigilant people and the bar and the judiciary she failed in her purpose. She could not control the press in the beginning until she placed the country under the infamous emergency raj in June 1975. She imposed the emergency after she was disqualified as a Member of Parliament in an election petition to the Allahabad High Court. By this authoritarian assault on democratic set up, she practically placed herself above the law and the Constitution. She got arrested lakhs of Opposition leaders, switched off electricity of the newspapers placing them under censorship, transferred High Court judges, abrogated fundamental rights of the people, including the sacred Right to Life. A spineless Supreme Court led by Justice Y V Chandrachud even supported Mrs Gandhi’s wanton exercise in denying even the ”Right to Life”. All this was done by the daughter of Jawaharlal Nehru who had taken pains in the making of the Constitution and to ensure that the nation would always remain democratic in nature.
Mrs Gandhi belied his expectations. She simply won’t tolerate dissent. With opposition behind the bars, she rushed through a captive Parliament the 42nd Constitution Amendment giving her regime more supreme powers.
The imposition of emergency was a sort of shock she administered to tighten her hold on the country but she would meet her nemesis. In less than two years when she lost parliament elections. Mrs Gandhi and her son Sanjay Gandhi could not win their own seats in Uttar Pradesh. She lost because the people did not accept an assault on democracy and on their rights guaranteed under the Constitution.
The emergency was the first major blow on democracy in India since Independence but apparently it is not the last. The end of emergency doesn’t mean the dangers to democracy have disappeared. Powerful rulers still can assume that, if not willing consent, they can command compliance of their wishes. Such rulers don’t listen to well-meant advice, independent voices are unwelcome; criticism of government decisions despised. A chunk of the Press, which often allows itself to be manipulated by authorities finds that only praise of the government is considered objective; and its criticism biased or mischievous.
In Indira Gandhi’s days, talk in Delhi used to be of “committed press”, “committed judges” and “committed bureaucrats”. “Nationalist” is the label popular these days with the present authorities and its over-enthusiastic supporters who don’t like the concept that in a democratic country, dissenting voices and freedom of expression are of fundamental importance and useful to the rulers and the ruled.
Our constitution provides for a plural polity providing space for all religions, castes, creeds and languages. Democracy also involves respecting the rights of minorities. Nationalistic credentials should not be questioned simply because a citizen belongs to a minority community or an ethnic group.
What is worrying is the atmosphere of confrontation that is developing between the Executive and the Supreme Court. On surface, the two vital organs of the State are fighting over the appointments of judges to the High Courts and the Supreme Court. The Supreme Court has held ultra vires the law passed by Parliament denying the Executive the power of selecting judges to the higher judiciary.
At the core of the issue is not the appointment of judges in the higher judiciary but the constitutional guarantee of independence of the judiciary.
Also, Narendra Modi’s government does not relish the Basic Structure of the Constitution which protects some fundamental aspects of the Constitution from frivolous amendments by the Executive and Parliament. The Modi government, like Mrs Gandhi’s pre-Emergency regime, wants to change the composition of the Supreme Court by acquiring the right to pack the Supreme Court by convenient judges. The present set of judges has seen through the government’s plans and seem to be determined to protect the Supreme Court’s independence as also the Basic Structure of the Constitution.
The Modi government is also finding itself caught in conflict with the Rajya Sabha where the BJP government is in a minority. A government which is in majority in the Lok Sabha finds its bills can get blocked later in the Rajya Sabha. It certainly does not like what its responsible spokesmen describe as “tyranny” of the unelected”. Hence, some of what used to be non-money bills are labelled differently as money bills and are pushed through the Lok Sabha. Such stratagems aggravate the distrust and the confrontation between the government and the opposition in Parliament. Unfortunately, the government is not making any genuine attempt to build a consensus on essential issues and avoid an unhealthy atmosphere in Parliament. Some give-and-take and a consensus can always spare Parliament many a stalemate as was done in the last session on the GST.
After a long time a government with a majority in the Lok Sabha has come to power in the country. It should use the opportunity of providing an exemplary atmosphere of governance. All that is required is respect for the institutions, a consensual approach and tolerance of dissent. These are after all the salt of democracy.
—Senior journalist, political commentator and former member of Parliament, H K Dua is adviser at the Observer Research Centre, New Delhi.