[This is a guest post by Abhinav Sekhri, summarising this paper.]
India is about to begin phase 4 of a nationally declared Lockdown, which began what seems like an eternity ago. From the heady days of the government officers presenting graphs of an India free of Covid-19 by May 16, politicians and bureaucrats have now begun to recite the new global homily: We must learn to live with the virus. This, of course, has many layers to it: Covid-19 has changed how we work, socialise, and be with our loved ones, and a collective effort to curb the spread of the virus will probably require adapting to these social changes forever. Besides changes to our social life, though, the Pandemic has also changed how states govern. Countries across the world have assumed crisis powers, and India has been no different.
The governance framework adopted by India to address the Covid-19 Pandemic is an Emergency framework in everything but its name. The Disaster Management Act 2005 [“DMA”] entrusts very broad powers upon the Executive in a bid to counter a crisis. Unfortunately, it does not clearly determine when such devolutions of power might be required, or for how long, and does not enable any review or oversight of how the executive exercises its broad powers. This has meant a model of governance led by technocrats, empowered to issue life-changing policies with no risk of being held accountable by the people. The hardships caused by these means to secure a positive end-result have already caused many persons to doubt the wisdom of such a form of governance. Far more troubling though are the legacy effects of this crisis-governance, as specific steps taken so far have made it likely that the crisis might become an opportunity for the Central Government to radically alter the status quo ante that was left behind in March.
Must we also learn to live this form of crisis governance, till the State decides we do not need to? This is the question that I ponder upon in a new draft paper, which wonders how might the country exit this crisis mode of governance at the national level. In this regard, I argued that the DMA framework is not conducive to facilitate a transition from crisis to normality. The design flaws in the DMA in this regard are reminiscent of everything that has led to India suffering protracted exits from crises of a similar scale in the past: An exit strategy of trusting the government to do what is right. Time and again, India has seen that when the central government wields a broad popular mandate, this approach leads to denigrating democracy in favour of adopting technocratic modes of governance, where citizens are reduced to subjects for whom the government “knows what’s best”. Considering how little is still known about Covid-19 and that there is no vaccine anywhere in sight, everything is in place for the DMA framework of crisis governance to remain till at least the first reliable vaccines come through.
To ensure that this prolonged concentration of vast executive power does not deal fatal body-blows to the constitutional setup, especially the values of liberty, equality, and fraternity that the Preamble preaches commitment to, the only feasible oversight mechanism in theory is the courts. While the DMA has reduced many features of an Emergency-era lifestyle, it has not led to any formal suspension of the right to move courts. Indeed, it has been convincingly argued that the exceptional governmental actions of the times render individuals equally exceptionally vulnerable to serious violations of basic civil liberties, which requires courts to be extra-vigilant in doing justice. Indian courts have mostly not stepped up to this challenge, and have seemingly turned a blind eye to civil liberties violations that have caused untold suffering in a bid to ensure the executive has all the leeway it might desire to pursue its policies. High levels of deference from courts are, of course, not uncommon during crises, and an optimistic person would hope that the reticent attitude of the courts could change as the Pandemic lingers on.
For the rest of us, there is only gloom as summer ends, in the knowledge that winter is coming. As H.V. Kamath had once said while criticising the clauses on Emergency powers in the Constituent Assembly Debates: “We trust the executive implicitly. God grant our trust be justified.”*
* Constituent Assembly Debates, Vol. IX, Speech of H.V. Kamath, 536(August 20, 1949). This remark came as a critique of excluding judicial review during an Emergency. The full quote goes: “We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.”