India and US can equally learn from each other on what not to do when it comes to upholding democratic institutions.
The Supreme Court of India issued a series of landmark judgments on a range of deeply contentious issues in the past week. While these judgements were critiqued, some more strongly than others, they were by and large accepted by the political and chattering classes. The same week, the US Senate witnessed a heart-wrenching testimony and an exceptionally polarising debate regarding the selection of the next justice of the Supreme Court. The jarring contrast in how a central pillar of democracy, an institution whose neutrality is fundamental to its legitimacy, has become so much more politicised in the world’s oldest democracy than in the country where politics is in many ways much more venal, is an interesting example of what India has got right – but also holds a cautionary tale.
It is generally acknowledged that India’s public institutions writ large are weaker than those in the United States. Yet, while political polarisation has been clearly on the rise in both countries, its institutional effects have been different. An important factor driving hyper-polarisation in the US Supreme Court appointments is that the stakes of its decisions have sharply increased with the increasing judicialisation of social and cultural issues. To some extent, this is the case with Indian courts as well, as the recent Supreme Court judgment repealing Section 377 of the Indian Penal Code illustrates.
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Yes, while there certainly have been controversies in the selection of Supreme Court judges in India, it is nothing compared to the intensity of partisan politics each time a new judge has to be selected for the US Supreme Court. An important reason is a simple administrative rule: In India, judges have to retire at age 65 while in the US, there is no retirement age. The projected age when a justice will leave the Supreme Court is now about 83 in the US, a decade longer than was the case in the 1950s. At the same time, US Supreme Court justices are being nominated to the court at a younger age than was the case in past decades. When President Donald Trump nominated Neil Gorsuch, he was 49-years-old – which means that he is likely to be on the bench for three and a half decades.
By contrast, in India, judges are generally elevated from the high courts when they are close to their retirement age (62 years) and hence usually have a tenure of about three years – a fraction of their counterparts in the US Supreme Court. The average tenure of the Chief Justice, who as master of the roster can guide cases to specific judges, is about a year. Furthermore, the self-appointment system by a collegium comprising of Supreme Court judges – while it is indeed opaque, and sometimes selects people whose judicial credentials are less than stellar – means that political stakes in the appointment process are attenuated.
Of course, the executive branch in India has many other tricks up its sleeve to influence the Supreme Court, such as delaying the date of appointment of judges to influence seniority or the implicit promise of post-retirement appointments for judges whose rulings are seen as favourable to the government. But the reality is that the political stakes are much lower if a judge is seen to be around for a few years rather than a few decades.
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The hyper-partisanship of US politics has been further stoked by flawed institutional design in other core ‘referee institutions’. Elections are a sine qua non of democracy and free and fair elections are at the heart of the democratic process. But many states in the US try and prevent citizens from voting, whether through disenfranchising former felons, not declaring the day of national elections as a public holiday (and thereby making it harder for the poor to vote), or voter ID laws ostensibly to prevent voter fraud, but in reality to lower voting by racial minorities. They can do so because the organisation of elections in the US is decentralised to the states and, unlike India, it lacks an independent constitutional body to oversee elections. The Election Commission of India (ECI) is a crown jewel of India’s democracy, whose absence in the institutional design of US democracy has robbed its poor and socially marginalised citizens of full participation in elections.
If the ECI has ensured a fuller participation of the country’s citizens in voting, another institutional mechanism – the Delimitation Commission – has ensured that the boundaries of electoral constituencies are determined in a relatively non-partisan fashion. Again, this is in stark contrast to the US where ‘gerrymandering’ by incumbent state legislatures results in massive manipulation of electoral boundaries to give partisan advantage to the party in power.
The absence of independent national level institutions in the US to manage the most basic requirement of a democracy – elections – could have been supplemented, at least in part, by a Supreme Court that would redress some of the worst excesses of political partisanship. But as the Court itself reflects that partisanship rather than rising above it, it has become party to anti-democratic proclivities whether by favouring the rich by declaring limitations on financial contributions as violative of free speech or a hands-off approach on gerrymandering.
In the process, there is a risk that the US is becoming less a ‘rule of law’ and more a ‘rule by law’ country. But there is one redeeming institutional feature in the US that has – at least until now – been miles ahead of its Indian counterparts in protecting democracy, namely the FBI and the office of the US Attorney. The latter is the chief federal law enforcement officer within his or her particular jurisdiction (currently there are 93 US Attorney offices) with full control of the investigative process. Compare that to the politically captive CBI and the ad hoc system of selecting prosecutors in India – together they are the Achilles heel of any attempt to uphold a rule of law in India.
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In principle, both the US and India could learn from each other on institutional design that could strengthen both democracies. Of course, they could equally learn from each other on what not to do and further weaken their democracies. But the main lesson for both is that no matter what the institutional design, hyper-polarisation will inevitably weaken and ultimately destroy the institutional foundations of any democracy. It is better to reduce the stakes in politics rather than hope that the institutions will hold no matter how high the stakes.
Devesh Kapur is the Starr Foundation South Asia Studies Professor and Asia Programs Director at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University.