If democracy was just about free and fair elections, India would be the world’s greatest democracy. There are many issues in the way our elections are held, but for a messy, third-world country of our size, it is a big deal that we (still) have largely free and fair elections.
However, India’s ranking in the global Democracy Index for 2019 put out by the Economist Intelligence Unit (EIU) fell ten points to 51. The reason for this, according to the EIU, was an erosion in civil liberties.
The apparatus needed for a healthy democracy goes beyond elections to unelected institutions: the judiciary, the press, the Reserve Bank of India, the Election Commission of India, the Comptroller and Auditor General (CAG), the Lokpal, the Central Bureau of Investigation (CBI), the tax agencies, the police, and so on. Even an institution we don’t think much about in India’s political discourse, the armed forces, need to play their part by remaining politically neutral and committed to democratic ideals.
When Narendra Modi was waging his campaign to become prime minister the first time in 2014, many felt that our institutions would keep Modi’s excesses in check. After all, we have one of the world’s most activist judiciaries, and our free press was bringing UPA-2 to its knees.
Six years later, we see the shameful sight of a recently retired Chief Justice of India (CJI) nominated to the Rajya Sabha. Enough and more has been said on why Justice Ranjan Gogoi’s appointment is a blight on India’s judicial independence. This is hardly a first. In 2014 itself, the Modi government made another recently retired chief justice, P. Sathasivam, the governor of Kerala.
From Arun Jaitley to Justice Gogoi himself, all the important people in India agree that post-retirement jobs compromise judicial independence. Except that they agree with this sentiment only when they are not in power or not seeking power with the same compromise.
The cases of Gogoi and Sathasivam are a bit too brazen, but it is not as if the Congress or others have not used the same carrot of post-retirement jobs to play games with the judiciary. The rule of thumb is this: the more powerful a government, the more it pushes and shoves its way ahead of independent institutions. For instance, despite the shame of the Emergency, Rajiv Gandhi was trying to muzzle the freedom of the press with a ‘defamation’ bill, because his absolute majority allowed him to do so. The pushback from the press made him go back on it.
A lot of Indira Gandhi’s defenders insist she was a democrat at heart, and yet she imposed the Emergency. Power corrupts, said Lord Acton, and absolute power corrupts absolutely. Whether it is the Congress or the Bharatiya Janata Party (BJP) or any other political party, whether it is Indira Gandhi or Narendra Modi or any other person, India will always have this problem of an executive seeking to ride roughshod over independent institutions through whatever means possible.
That is why we need a bipartisan conversation on strengthening our institutions. We need to think afresh, and think long-term, beyond the present political moment. It is easy to be led astray by the Congress-BJP, Left-Right whataboutery. In this great year of the revival of constitutional nationalism, we need to think as partisans only of the Constitution of India, and ask: what changes do we need in the judiciary so that we can make it immune to the electoral heft the government of the day carries?
The demand for a cooling-off period for post-retirement jobs for judges, or for not holding political office, or revising the collegium system of appointment of judges — these debates and issues should be made central to our political conversation. As the Supreme Court of India becomes a defanged ‘executive court’, this is the right time to think about the institution with the long view of the future.
We the guardians of democracy
It reflects poorly on all of us that we had to pressure the government to have an independent system of appointing the Election Commissioners. Surely, it does not sound right that the Election Commissioners are appointed by the President of India on the advice of the Prime Minister? Which Prime Minister would make the mistake of not appointing a yes man there?
L.K. Advani had proposed a collegium system to involve the opposition leader and the chief justice of India in appointing the election commissioners, as senior journalist D.K. Singh recently reminded us. The Manmohan Singh government didn’t agree in 2012. Nobody wants to relinquish their powers. It is we the people who have to force the political class to have this conversation.
Most of the Indian media has become a mouthpiece of the government and the ruling BJP. We need an equivalent of the First Amendment in the United States to ensure press freedom.
If we get a Congress government in power tomorrow, it won’t pursue media freedom. It is more likely that it will be taking a leaf out of the Modi playbook and making the media its own mouthpiece. It is civil society that will have to help create a consensus that we need to do something to ensure greater media independence. How, for example, can the government get away with refusing to grant new licenses for news channels? And why does such red tape not affect Arnab Goswami’s expanding empire?
India’s political parties will pay lip-service to such issues only until they are in opposition. Remember how Narendra Modi protested Section 66A of the Information Technology Act, which was used to arrest social media users for political speech, but when Modi became PM, his government went on to defend 66A before the Supreme Court. When the court read down the provision, former communications minister Kapil Sibal welcomed the decision.
In these brazen games, those occupying the chair murder democracy to make themselves more powerful. There are enough people to speak up for the BJP and the Congress in India. We now need people to speak up for democracy, so that we may be able to prevent the next Supreme Court judge from eyeing political office.
The author is contributing editor to ThePrint. Views are personal.
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