WEBINAR 9: REMEDIES & RENEWAL - Preventing Constitutional Decay in India: Some Preliminary Considerations
Amal SETHI
25 November 2020
Since its ascension to power in 2014, the Bharatiya Janata Party (BJP) led government has been incrementally reversing all the advances constitutional democracy in India had made over the years. Akin to its comparative counterparts such as Hungary, Israel, Thailand, Turkmenistan, Sri Lanka, Philippines, Turkey, Bolivia, Egypt, etc. attacks on constitutional democracy in India have only amplified during the COVID-19 pandemic.
Major recommendations to address threats to constitutional democracy have mainly existed at a generic level and have focused on normative solutions to strengthen constitutional democracies institutions, structures, and processes. While these discourses are vital, they barely help to address the immediate perils at hand. Moreover, 'one size fits all' suggestions fail to adequately account for the differences between constitutional democracies and their ground-level circumstances.
The question that then arises is this: how can the rapid decay of constitutional democracy in India be halted? This is a perplexing challenge and one which does not have a definitive solution – especially one that can be crystallized as a list of propositions. Nevertheless, this predicament would certainly entail considerable effort on the part of the numerous actors engaged in safeguarding constitutional democracy in India. It would also require the said actors to alter their existing methods, which to date have been unable to act as a speed bump to constitutional decay in India. The rest of this blog pots will attempt to briefly list some of the essential considerations in preventing constitutional decay in India.
Taking the Constitution Away from the Supreme Court
In hardly any constitutional democracy is constitutionalism as Supreme Court-centric as it is in India. The Supreme Court has been at the vanguard of nearly all political, social, and economic changes in India and has routinely undertaken both core legislative and executive functions. This has been aided in large part by the Supreme Court relaxing its traditional rules of standing and allowing any member of the citizenry to bring a case before it on matters of public relevance. In turn, the dominant strategy that has been utilized to fight the battle for the soul of India's Constitution has been through the involvement of the Supreme Court. In present times, reliance on the Supreme Court has taken on alarming proportions, and practically every action of the BJP government has been litigated before the Supreme Court.
However, the Supreme Court has seldom ruled against the BJP government in contentious cases. The positive decisions of the Supreme Court have primarily been 'rights without remedies' rulings or on matters to which the BJP government at the centre does not seem to have significant opposition. On the contrary, several of the Supreme Court's recent decisions have possibly been in line with what David Landau and Rosalind Dixon term 'abusive judicial review'.
To put things into context, among several controversial actions, the Supreme Court has aided the BJP government in upsetting the delicate balance of secularism in India's deeply divided society; in passing controversial laws and actions without undergoing the requisite constitutionally-mandated processes; in undermining and/or imprisoning opposition leaders, activists and protestors; in making social mobilization harder; in putting an entire state under a large-scale communication blockade for over a year; in destabilizing the integrity of the electoral process; in interfering with accountability mechanisms; and in weakening the federal system. The Supreme Court's decision making has even resulted in sitting as well as former judges expressing concern as can be seen here, here, here and here.
The point for actors involved in preventing constitutional decay in India to note is that the Supreme Court is no longer its ally and recourse to the Court needs to be undertaken very cautiously. In previous decades, the Supreme Court utilized deferral strategies to sidestep providing legitimacy to unconstitutional actions of the government. In fact, through the use of deferral strategies, it had almost always managed to condemn unconstitutional behavior on the part of the government. Today, in many cases, reliance on the Supreme Court results in pushing the fight for India's Constitution a few steps behind, by adding a veneer of legality to the unconstitutional actions of the BJP government and further entrenching them. This only makes attempts at constitutional renewal more arduous.
Increased Role for Civil Society Organizations
Through extensive empirical work, Mila Versteeg and Adam Chilton have shown how even if a polity has independent courts that pass favorable decisions, the promises of constitutions are only actualized when organizations push for the Constitution's realization. This is because organizations (including but not limited to civil society organizations) can aid in resolving coordination and collective action problems as well as chalk out the best strategies to achieve specific ends. Predominant among these strategies include civil resistance in the form of boycotts, strikes, protests, and organized non-cooperation. Major civil resistance movements between 1990-2006 achieved 53% success across the globe in challenging entrenched power and exacting political concessions. These tools were also instrumental in helping countries like Senegal and Burkina Faso ensure that their dictators did not hold power indefinitely, which has been a recurring problem in the African continent.
However, things are easier said than done. Civil society organizations in India are middle class dominated, and they often do not involve themselves in primary concerns of the average Indian. An added problem of organizations in a global south society with as many problems as India is that they jump from issue to issue and infrequently take things over the finish line. Even when civil society organizations manage small gains, they consider issues as won and move on without pursuing them to the enforcement stage. These limited outrage cycles make sustained advocacy extremely difficult.
In light of this tendency, barring a few instances, civil resistance movements in India have not been able to garner the continued critical mass of people needed to make a difference. Governments are, therefore, easily able to suppress small movements and, at times, label them as 'extremists' or, in Indian terms, as 'anti-nationals'. It is the large crowds that make the government rethink their moves or pressure them to undertake actions since the costs of suppressing them are incredibly high. When on rare occasions, civil resistance movements have been able to garner a critical mass of support and applied sustained pressure - such as during India Against Corruption Movement and in the wake of the heinous Nirbhaya Rape - their endeavors have provoked reactions on the part of the government.
Considering the crucial role civil society organizations have to play, they would have to undertake immediate measures before the clock runs out. Foremost among these is to keep aside their agendas or the temptation to address every problem and prioritize on occurrences that are impacting foundations of constitutional democracy in India or concern the average Indian. Civil society organizations will have to make the effort of ensuring continued and sustained advocacy rather than jumping from issue to issue. They would also have to take the measure of adequately framing issues in ways that can capture the collective imagination of the country's populace rather than just a handful of elites. The BJP government has sizable support, and it would take a lot to convince a critical mass of the populace that many of the government's actions are impermissible.
Opposition Parties and the Need to Step Up
For constitutional democracies to thrive, it requires incumbents to lose elections from time to time. In the absence of rotation of powers, ruling parties are disincentivized from ensuring the general welfare or upholding the civil and political rights of people (particularly those of minorities). Signs of these trends are already evident in India. Moreover, for incumbents to lose, there needs to be a viable alternative for the populace to vote for. While the BJP government is taking all the steps to render the opposition impotent and elections meaningless, opposition parties in India have also not been helping their cause.
Opposition political parties have been embroiled in their own internal discords and power struggles. The Indian National Congress (INC), the largest opposition political party in India, has been without a full-time permanent leader since the last parliamentary elections in 2019. It is currently being run on an interim basis by Sonia Gandhi, a member of the dynastic Gandhi-Nehru family that has held consistent command of the INC since 1947. Despite statements by members of the Gandhi-Nehru family promising much-needed democratic reforms in the INC, they have refused to let go of their command.
On the contrary, when senior INC leaders sought organizational changes through elections to party leadership positions, they were victimized and sidelined. This situation within the INC is illustrative of the bigger problem plaguing the numerous regional parties that make up the opposition in India. Several of these regional parties are embroiled in their own dynastic politics and have their prominent leaders charged with serious cases of corruption and other wrongdoings.
Opposition parties have also failed to put forward a collective front to challenge the might of the BJP. There has been an extreme unwillingness on the part of opposition parties to keep ambitions for the premiership aside and strengthen coalitions. Additionally, the main policy questions remain unsettled on the part of the opposition, and they rarely make any significant noise when the BJP government engages in unconstitutional behaviour. In fact, opposition parties have frequently toed the BJP government line on key issues.
As a result, opposition parties are not providing a concrete ideological alternative to the BJP that the electorate can consider and vote for. What the opposition offers to the 'bulk of the populace' is just a weaker and disorganized version of the ruling coalition. A large part of the opposition's strategy to seek electoral gains is based on banking on anti-incumbency sentiments against the BJP government. While this might result in small victories, it is undoubtedly not an efficient strategy to win major electoral battles. Consequently, there seems to be no end in sight to the BJP dominance.
There is a significant onus on opposition parties to sort out their internal issues, keep aside leadership ambitions, develop clear ideological platforms and present to the bulk of the population a united and robust alternate that they can vote for. India's history should give opposition parties a lot of encouragement. When Indira Gandhi's authoritarian INC government was defeated in the general elections in 1977, it was because various opposition parties came together to contest against the INC.
The INC defeat in 1977 proved to be a crucial moment that inhibited India's descent to full-fledged authoritarianism. Recent history at a state level also shows the enormous potential a united opposition can achieve. When, for instance, in the state of Maharashtra, the INC and regional parties kept their historical differences aside and entered into a coalition, it saw them forming the state government in the place of a rather popular BJP government.
A Scholarly Agenda For The Future
In light of the above, academics may also need to explore newer research agendas. A critical exercise for academics going forward would be to examine how specific governmental actions are serving the purpose of eroding the basic foundations of constitutional democracy. For example, many laws passed by the BJP government have not only been controversial in their substance, but have also simultaneously weakened separation of powers and the federal scheme. This poses even graver challenges for constitutional democracy in India.
Further, scholars would need to investigate how, in a country like India with a weak constitutional culture, can the populace be convinced that certain actions of the government are not in their greater interests. This might be challenging, considering a large part of the country is often persuaded by the BJP government, its actions, and its promises. Academics can also assist the conversation by suggesting which issues would need the most prioritizing and the optimal strategies that organizations could adopt vis-a-vis particular concerns.
Academics could even seek to study how, in the current political climate, opposition parties could establish stable united fronts and which ideological platforms they could put forward. Specific technical questions such as deciding on post-election leadership positions between coalition members could benefit from scholarly inquiry as well.
The list is long, but in seeking answers to preventing constitutional decay in India, academics have their own vital part to play. Civil society organizations and opposition forces, as they lead the charge to revive constitutional democracy, can undeniably benefit from pragmatic scholarly discourse.
Constitutional democracy in India has defied the odds and managed to survive in the past. However, this time around, leaving things to run their course might not be prudent. The road is long and preventing constitutional decay would require all the concerned actors to fulfil their respective roles adequately.
Amal Sethi is a Fellow at the University of Pennsylvania from where he also received his masters and doctorate. His research focuses on comparative constitutional law and theory from an interdisciplinary perspective. During his time at Penn, Amal has been appointed as a Legal Writing Fellow and was selected as a Fellow with the Salzburg Cutler Fellows Program and The Global Women Leadership Project. Outside of his academic pursuits, Amal has worked with governmental and intergovernmental agencies ranging from USAID and the US Department of Commerce to UNESCO, UNDP, UN Women, UNHCHR, and The SDG Fund.