Yogesh Vajpeyi is an Independent Writing and Editing Professional. He has been associated with New Indian Express Group as Consulting Editor; with Sakaal Times as an Associate Editor and Indian Express as Senior Editor
In his monumental book “How to Save a Constitutional Democracy”, American jurist Tom Ginsburg has drawn attention to the recent disturbing phenomena of ‘democratic backsliding’ taking place in many democracies. ‘Backsliding’ refers to previously established democracies declining in quality, sometimes to the point where we can no longer use the term.
In the context of India, he refers to a troubling trend toward systematic erosion of autonomy of time-tested institutions and undermining independence of the organs of the state, combined with thuggish intimidation of journalists and civil society and concludes: “I am sure elections will continue in India, and so there is no threat of democratic collapse. But are we witnessing the erosion of India’s grand tradition of democracy?” During the two stints of the United Progressive Alliance government, the Bharatiya Janata Party spent years accusing the Congress, and in particular Sonia Gandhi’s National Advisory Council, of attempting to conduct governance by remote control and undermining India’s constitutional institutions in the process.
If the BJP and Narendra Modi came to power, this line of argument seemed to suggest, the country’s institutions would be safeguarded and operate in the manner they were supposed to.
Events during the tenure of the Modi government suggest that exactly the opposite has happened. There has been a systematic attempt to undermine the autonomy of critical central agencies such as the Central Vigilance Commissioner, the Central Bureau of Investigation and the Reserve Bank of India. The Planning Commission has been abolished and replaced by a government think tank NITI Aayog that has been keener on data manipulation at the cost of the National Statistical Commission to showcase the government’s achievements.
The war within the CBI and the government’s role in packing off former CBI Director Alok Verma unceremoniously and illegally on this pretext has been hogging the headlines for the last few months. Even after Verma’s exit, the CBI remained a headless agency for months, working under an interim director, and found itself at war with the West Bengal police when it raided the home of Kolkata Police Commissioner without any intimation to the state government, or even without as much as a search warrant, a day before the new Director, Rishi Kumar Shukla, took charge. As for the Reserve Bank of India, the government’s bulldozing forced the RBI governor Urjit Patel to quit nine months before completing his term. In a public lecture on October 26, RBI Deputy Governor Viral Acharya warned, “Governments that do not respect the central bank’s independence will sooner or later incur the wrath of financial markets, ignite economic fire, and come to rue the day they undermined an important regulatory institution.” His remarks do not come from out of the blue. Over the past few years, the finance ministry has been consistently pushing the central bank to act in accordance with its diktat, and in some cases even announced new measures without consulting the RBI first.
But the CBI and RBI controversies are only a tiny,(if egregious,) part of the tale. As the Modi government nears the end of its term, the list of Constitutional and statutory institutions that are unable to bear its destructive interference, and are openly protesting has been extending day by day.
The government’s refusal to release the latest periodic labour survey report of the National Statistical Commission has forced its Chairman and a senior member to resign. In an attempt to bail out the government, the NITI Aayog, disputed the NSC survey findings. In another recent episode, the NITI Aayog, which was purportedly set up to focus on long-term issues, has decided to take over the role of the drugs pricing regulator, the National Pharmaceuticals Pricing Authority. India can ill-afford to send out signals that its core macro data has been politicised, or that its key economic institutions lack the requisite autonomy.
Even hallowed institutions like the Election Commission, whose independence has been assured by the Constitution, have been forced to buckle down. First, the Election Commission called electoral bonds – the monetary instrument proposed by the government that would make funding of political parties more opaque – a “retrograde move.” Soon after, the Commission changed its mind and said these bonds are a “step in the right direction”, even though analysts everywhere said that they were a blow to transparency.
At least two instances of flagrant partisanship have been displayed by the Election Commission: one was its decision to delay the announcement of Gujarat Assembly polls schedule in 2017, allegedly to allow the Prime Minister and his party to continue distributing largesse in the state. The second was the hurried and unseemly disqualification of AAP MLAs from Delhi over the office of profit charges, after which the Supreme Court rejected the EC’s decision, and castigated it for not looking at the whole thing more thoroughly.
The EC has thus far not displayed, publicly at least, any resistance to government pressures. Although it continues to go about its business in the usual manner, holding elections at different levels, the coming months will be a test for its mettle, as its conduct of the all-important general elections in 2019 will be keenly watched.
In a move to curb the use of Right to Information (RTI) Act to expose government malfeasance, the Modi government has moved amendments to the Act itself, which do away with the present five-year fixed term for information commissioners both at the Central Information Commission (CIC) and State Information Commissions (SICs). The amendments also enable the Centre to prescribe the term of office, salaries and allowances, and other terms and conditions of service of chief information commissioners, and information commissioners at both central and state levels. In this case, the government has attempted to subvert the RTI Act and its machinery through pushing amendments – a legislative way of curbing transparency and accountability. In the process, the whole mechanism of information commissions will be made dependant on the government, further weakening it.
In many other official bodies ranging from the UGC to top officers in research and academic bodies including university appointees like vice chancellors, the Modi government has played fast and loose, freely appointing its own supporters, and thereby tilting the balance in favour of their ideological positions. These appointees have also played an active role in destroying democratic functioning in the institutions they head, as most flagrantly brought out by in the case of JNU and its BJP-supporting VC.
In a country that claims the legacy of over 70 years of Constitutional democratic governance, these are unmistakable warning signals. However, the litmus test for the Modi government is its approach towards the four pillars of democracy—the legislature, the executive, the judiciary and the free media.
Judiciary was hardly a topic of discussion during the run-up to the 2014 Lok Sabha elections. But during Modi’s reign, the Supreme Court has gone through perhaps its most tumultuous period since the days of the Emergency in the 1970s. At the heart of the debate was the question of judicial independence, with a string of controversies that began in 2014 culminating in an aborted attempt to impeach former Chief Justice of India, Deepak Misra and an unprecedented press conference by four senior judges in January 2018 about the distribution of work by him.
The government had signalled its intentions regarding the appointment of judges to the Supreme Court when an uncharitable comment about senior advocate Gopal Subramanium was leaked when he was supposed to be elevated to the Apex Court. Subramanium finally withdrew from the process. While the government denied any role in what transpired, the speculation was that the Modi government did not like that fact that someone who was the amicus curiae in the Sohrabuddin encounter case in Gujarat was about to rise to the bench.
Four years later, a judge who had given an unfavourable order that cost BJP a chance at forming the government in Uttarakhand had to face similar resistance. In January 2018, the Supreme Court collegium recommended Uttarakhand High Court Chief Justice KM Joseph for elevation. The Centre first sat on this file. Then, in April, it expressed its reservations at the appointment, stating that the parent court Joseph came from, the Kerala High Court, was already well represented in the apex court. It wanted the collegium, led by Chief Justice Dipak Misra, to reconsider the appointment.
Instead of putting its foot down categorically, it took the collegium three sittings to reiterate Joseph’s appointment even as Justice Indu Malhotra, who was recommended along with Joseph, took oath in April. But the Centre had its way as the reconsideration came with two other recommendations, leading to KM Joseph losing his seniority in the Supreme Court.
In stark contrast, the elevation of four other judges in November was cleared in a record time of three days. This included Justice Hemant Gupta, against whom allegations of money laundering were made a year earlier. Reports suggested that the Congress was even thinking of an impeachment motion against Gupta.
As Modi’s tenure draws to a close, the most crucial development is likely to involve how the Supreme Court handles the Ayodhya matter. While Prime Minister claimed that his government would prefer to wait for the judicial process to take its due course, Union Law Minister has gone public that the court should not unnecessarily prolong a decision on the dispute and UP Chief Minister Yogi Adityanath and other rabble rousers have even threatened to take things in their own hands if the court doesn’t act according to their expectations.
The Modi government’s approach to Parliament and democratic conventions is equally worrisome. In an ideal situation, after the government tables a fully-formed bill in Parliament, the MPs are supposed to examine and vigorously debate the provisions of the bill, suggesting additions, omissions, dilutions and amendments. The process is supposed to take several hours, if not days, with high chances of major bills being referred to standing committees for stricter scrutiny.
This, however, is just not happening now. Take, for instance, the monsoon session of 2017, the Modi government’s best law-making year. Fifteen new bills were introduced in that session, and none of them were referred to a standing committee. It could indicate two things—that none of the bills required closer scrutiny because they were drafted rather well, and that the debates in both houses were robust enough to fix whatever problems these bills had.
But records of the time spent by MPs debating each of these 15 bills suggest that a majority of the bills were passed in a hurry. The passage of some major bills—like the Banking Regulation (Amendment) Bill—took less than two hours combined in both the houses.
The Question Hour has also not been very productive either. Ministers have kept away from answering questions, with the prime minister himself keeping away from crucial parliamentary debates on demonetisation and other reforms.
The Modi government has resorted to dubious means to get contentious bills passed, because of the ruling coalition’s weaker presence in the Rajya Sabha. There has been an increase in the number of money bills, which are not required to be passed by the Rajya Sabha. The most contentious such money bill was the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
The Aadhaar bill had several controversial provisions, which were passed only because the Modi government introduced it as a money bill. But late last year, some of those provisions were struck down by a constitutional bench of the Supreme Court.
Apart from sloppy law-making, the government has also been accused of reckless law-making. A classic example is the Constitution (124th Amendment) Bill, which was passed to provide 10 per cent reservation in jobs and education to the poor who belong to the forward castes. The bill was tabled on the last day of the winter session, and was pushed through the Rajya Sabha by extending the session for a day—that, too, without notice. Law Minister Ravi Shankar Prasad described it as a “slog-over six”.
As for press freedom and civil liberties, despite claims to the contrary, the Modi government’s record is far from inspiring. “I want this government to be criticised. Criticism makes democracy strong. Democracy cannot succeed without constructive criticism,” Modi said after he was swept to power in 2014 on a wave of optimism.
The World Press Freedom Index 2018 compiled by Reporters Without Borders (RSF), reflects growing animosity towards journalists in which India dropped two ranks from 136 to 138. The reasons for India’s fall are obvious. In the report, the media watchdog called the Ministry of Information and Broadcasting the “most active censoring agency” during the period.
The BJP supporters counter any suggestion that like Indira Gandhi during 1975, Modi is behaving like an autocrat. But we must remember that the erosion of democracy takes place through a number of incremental steps, any one of which may be unobjectionable, but when added up they amount to a serious challenge. The key is to recognise the pattern and not just focus on the individual action in question.