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[This is a guest post by Tarunabh Khaitan.]


Democratic backsliding (generally speaking)

There is growing acknowledgement that the onward march of democracy in the late twentieth century has been arrested, at least on certain key parameters. As is argued at greater length in this paper, there are some key common characteristics to creeping authoritarianism of the twenty-first century (key points of this paper are discussed in this podcast interview).  In sum, what we are witnessing is a crisis of executive accountability (i.e, that of the political executive branch). There is a gradual erosion of all three forms of accountability-seeking mechanisms that are integral to democratic government: (i) electoral or vertical accountability to the people, (ii) horizontal or institutional accountability to the political opposition, judiciary and fourth branch institutions, and (iii) diagonal or discursive accountability to the academy, media and civil society. The paper further identifies the precise mechanisms through which executive aggrandizement is taking place. It argues that this aggrandizement is incremental and systemic, uses democratic rhetoric, and is effected by the fusion of the ruling party and the state. Finally, the paper emphasises the limitations of the judiciary in defending democracy on its own, and calls for greater attention to the role of political parties, fourth branch institutions, electoral systems and global institutions.

Is Indian democracy also backsliding?

Unfortunately, the list of key democracies that appear to be backsliding includes India. Admittedly, unlike Poland, Turkey or Hungary, India is not a paradigmatic case of democratic decay of our times. With Israel, United States, and South Africa, it is perhaps a borderline case—the trends are unmistakably there, but perhaps reversible. A new, work-in-progress, paper documents and examines the evidence for this claim about the state of Indian democracy. This paper finds that the NDA government in office between 2014 and 2019 has indeed sought to undermine each of the three key strands of executive accountability. Unlike the assault on democratic norms during Indira Gandhi’s Emergency in the 1970s, there is no evidence of a direct or full-frontal attack today. The BJP government’s mode of operation has been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as ‘killing a constitution by a thousand cuts’. The incremental assaults on democratic governance have typically been justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors to the state).

What can be done about it?

At least in the Indian context, it is clear that the judiciary alone cannot protect democracy. This is not to say that we should give up on the judiciary. It has an important role to play, and the Supreme Court needs to urgently recalibrate its dual role as a constitutional court and an appellate court, to ensure that the latter function does not continue to cannibalise the former. But democracy needs to hedge its bets, rather than counting on a single institution for its protection. This is where the role of the ‘fourth branch’ becomes crucial.

Characterised as the fourth branch of the state — because of their distinctiveness from the executive, legislature and judiciary — these institutions are tasked with the protection of key constitutional values such as democracy, legality, impartiality, probity, human rights and price stability (for eccentric American reasons, they are called the ‘fifth branch’ in the United States). While Chapter Nine of the South African Constitution explicitly guarantees independence to the fourth branch of the state, the Indian Constitution does so implicitly by expecting Parliament to enact a law prescribing detailed mechanisms for appointments to and functioning of such institutions — for example, through Articles 280(2) (Finance Commission) and 324(2) (Election Commission). However, an Independent Institutions Bill remains a long-unrealised constitutional aspiration. In the Indian context, institutions of the fourth branch include the Election Commission, Lokpal, Central Bureau of Investigation, Reserve Bank, National Statistics Commission, National Human Rights Commission, Information Commission, commissions for various marginalised groups, Central Vigilance Commission, Comptroller & Auditor General, Attorney General, Public Service Commission, University Grants Commission, Finance Commission, Niti Aayog, media regulators and many others. Some of these institutions are constitutional; others have quasi-constitutional status.

One way to accomplish the independence of Fourth Branch institutions is through enacting an Independent Institutions Bill, whose contours are outlined here. Three key demands are stressed: one, multi-partisan appointments, two, operational independence and impartiality, and three, accountability to the legislature rather than the executive.

Manifesto Pledges to ‘Save the Constitution’

In its manifesto, the Congress Party claims that “Never before have the institutions that underpin a parliamentary democracy been so brazenly undermined, denigrated and captured as in the last 5 years. Examples of this include the Reserve Bank of India, Central Vigilance Commission, Election Commission of India, Central Bureau of Investigation, Enforcement Directorate, Central Information Commission, National Statistics Commission and National Human Rights Commission.” Well, yes, never before, except during the Emergency in the 1970s.

Putting that exception to one side, this recognition is followed by a key promise:

“Congress promises to restore the dignity, authority and autonomy of these institutions while making them accountable to Parliament. Congress promises that selection and appointment to these bodies will be transparent and will be with due regard to the importance of institutional integrity.” [para 24.01]

 

The CPM manifesto also contains a similar diagnosis of the state of Indian democracy. It claims that the BJP government “has mounted a brazen and continuing assault on all Constitutional authorities and institutions during these last five years. The BJP continuing to head the central government will further undermine the fundamental pillars of our Constitution.” Yet again, a similar record of the CPM government in West Bengal is glossed over. The Manifesto further pledges to “Protect the independence of Statutory, Constitutional and Regulatory Bodies by ensuring transparency in appointments to oversight, regulatory and adjudicatory bodies, like the CVC, CBI, ECI, National/State Human Rights Commissions, Lokpal, Lokayuktas, Womens’ Commissions, SC/ST Commissions etc”. It also seeks to safeguard the autonomy of particular institutions, such as the RBI and the Election Commission.

The Emergency and the party-state fusion under the Left rule in West Bengal significantly damaged Indian democracy. Of course, we cannot expect their 2019 manifestos to own up to these evils of their own past. But if these parties do win power, we need to be assured that their recognition that democracy needs a protected space for the political opposition and for independent and autonomous institutions is sincere. They cannot be allowed to get away with loving democracy only when in Opposition. We must not let them forget these manifesto promises if and when they come to power.

* The author is an associate professor of law at Oxford and Melbourne. He is also the General Editor of the Indian Law Review. All views expressed here are personal and may not be attributed to these institutions.