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Stifling Democracy Sans Emergency

Advocate Prashant Bhushan
28 Jun 2020 12:48 PM GMT
Stifling Democracy Sans Emergency

The strength of a democracy lies in the robustness of its regulatory institutions and their ability to safeguard the fundamental rights of citizens.

We frequently say that the Emergency of 1975-1977 was the worst period for India's democracy. Why do we say this? It is firstly because, fundamental rights had been suspended, and about 1 lakh people, primarily those seen as opposed to the then ruling regime, were put behind bars, under a draconian preventive detention law called Maintenance of Internal Security Act (MISA). Secondly, press censorship was imposed, making it virtually impossible for the media to carry any news or views against the government. All this created a climate of fear due to which even regulatory institutions including the Supreme Court could not stand up to the government. However, even in that dark period, some brave media organizations, notably the Indian Express, under a doughty and feisty Ram Nath Goenka, and the Statesman under C.R. Irani, stood up and continued to evade the censor's scissors by using innovative means such as publishing blank editorials and satirical cartoons, etc. Also, many High Courts stood up, especially in the Habeas Corpus case, where they held that detentions even under MISA could be questioned and as many as 10 High Courts quashed even preventive detention during that time. This despite the fact that the judges delivering those judgments knew that they were at risk of being vindictively transferred, and many of them in fact were transferred, after those judgments. Ultimately, Mrs. Gandhi who had imposed the emergency after the setting aside of her election by the Allahabad High Court for corrupt practices, revoked the emergency 19 months later, perhaps owing to international pressure and the battering that her image had taken especially in the international arena.

The emergency had exposed the fragility of our democracy, which was underlined by the Justice J.C. Shah Commission, which was set up to examine precisely this question. The subsequent governments and indeed the courts too took various decisions to strengthen existing institutions and set up various new institutions to further strengthen democracy. The new Janata government, which came in 1977 soon brought in the 44th Amendment, which did away with the power to suspend Article 21 (the right to life and liberty), even during an emergency. In the years thereafter, several other steps were taken to strengthen democracy, particularly to make the judiciary, the CBI and the Police more independent and create other independent regulatory institutions.

In 1993, in a landmark judgment, the Supreme Court took away the essential power of selecting judges of the Higher Courts from the government, and vested it in a collegium of senior judges of the Supreme Court itself. This did strengthen the independence of the judiciary by encouraging the appointment of more independent minded judges. By another innovative judgment, the Supreme Court sought to make the CBI more independent, by directing that the CBI Director should be selected by a collegium, which included the Chief Justice of India and the leader of the Opposition in the Lok Sabha. It also mandated giving him a fixed tenure and placing the CBI under the supervisory jurisdiction of the Central Vigilance Commission (CVC) which was also to be given statutory status and thus made functionally independent of the government.

Through another judgment in the year 2006, the Supreme Court mandated police reforms, mainly directed at making the police functionally more independent of the government. This was by way of giving the DGPs in the States a fixed tenure; circumscribing the government's ability to select the DGP arbitrarily by bringing in the Union Public Service Commission in between. It also directed the formation of State Security Commissions for oversight of the police force in every state; the setting up of Police Establishment Boards of senior Police officers for transfers and postings of officers upto a certain level; mandating a minimum tenure for field level officers to prevent frequent, arbitrary and malafide transfers by the government; separating the investigation wing of the police from the law and order wing so as to give the investigation wing more autonomy and setting up of independent Police Complaint authorities at district and State levels.

In the year 1993, after The Protection of Human Rights Act was enacted, a National Human Rights Commission and State Human Rights Commissions were set up. In the year 2005, with the enactment of the Right to Information Act, Central and State Information Commissions were set up to oversee the effective implementation of the Right to Information Act. The institution of the Lokpal was created by means of the Lokpal Act 2013 and a Salutary Whistle Blower Law was also passed in the year 2013.

With all these measures to strengthen regulatory institutions, one would have expected that democracy today would be much more robust than it was in 1975. However, if one looks at the functioning of democracy and democratic institutions in the country today, one is dismayed if not shocked at how easily it has been possible to blunt these reforms and make institutions buckle under by a strong and fascist government's assault on them.

Assault on democracy

The last six years have been a watershed in the functioning of our democracy, the protection of fundamental rights as well as the health of institutions. These years have witnessed an unprecedented assault on various elements of democracy, on rights and institutions.

Erosion of rights

During these years we have seen an unprecedented assault on the freedom of speech and the right to dissent. Persons critical of the government have been assaulted on the streets by saffron lynch mobs which are patronised by the government and a complicit police; in many cases they have been charged with sedition, despite the fact that the Supreme Court had injuncted the use of this law for a situation where there is no incitement to violence or public disorder. Those who escape the lynch mobs or sedition charges have had to face the wrath of an organised lynch mob on the social media, which as Swati Chaturvedi pointed out in her book "I am a troll" are organised and controlled by none other than the Prime Minister himself. These trolls descend like a pack of wolves on any influential person who criticises the government or the PM, by bombarding them with abuse and threats, on their phones, on social media platforms, etc. This abuse is also sometimes picked up and amplified by the sections of the mainstream media which have become lapdogs of the government. Dalits and minorities have especially borne the brunt of lynch mobs as they have been sought to be bludgeoned into submission by assertive saffron mobs who are confident that the government and police will not act against them. Documentation of cases of lynchings have shown three stark facts.

1. Almost all of the hundreds of cases of mob lynching has been directed against muslims and dalits

2. That in almost all cases, the perpetrators are associated with assorted saffron groups who are connected with the BJP/RSS or at least enjoy their protection.

3. That the police rarely act against the perpetrators unless compelled to by courts and often act against the victims themselves.

False information or fake news which is designed to generate hate against Muslims in particular, is being generated and spread on a mammoth scale by the social media organisation affiliated with the BJP and its assorted lapdog media. This has created a feeling of hopelessness and helplessness among large sections of minorities in particular, as well as dalits, especially when they see the administration including the judicial administration being reduced to bystanders. The use of draconian laws like UAPA and NSA particularly on hapless sections of minorities including dalits have accentuated the injustice and the climate of fear among them.

Recently, the Delhi Police in the guise of investigating riots which took place in Delhi after three months of exemplary peaceful protests against the Citizenship Amendment Act, has turned the investigation itself into a conspiracy to target peaceful activists and protestors, in the guise of an investigation. This has been achieved by a) ignoring complaints against goons and police officers who are seen on video violently assaulting people; b) letting off leaders of the BJP such as Kapil Mishra and Anurag Thakur who are seen on video clearly instigating mobs to violence; and c) arresting or charging innocent and peaceful protestors who can be seen on video calling for peace and non violence. The same police also entered the Jamia campus and brutally beat up students, even those who were in the library. They even smashed CCTV cameras to hide the evidence. No police officer has been brought to book for that brutal assault on Jamia. On the other hand, innocent and peaceful students have been charged under the draconian UAPA.

On 5th January, a mob of armed goons were allowed to enter JNU under the gaze of the Delhi Police. They went on a rampage, beating up students and teachers inside the campus. Yet despite many of them being identified on video, no action has been taken against them or against the police officers who virtually escorted them in and out of the campus. Unfortunately all these egregious assaults on civil rights have been allowed to go through, without any accountability, under the benign gaze of the Supreme Court, High Court and the National Human Rights Commission.

The condition of the poor and the marginalised has become even more helpless with massive unemployment and job loss in the last six years and increasing agrarian distress in which agriculture has become a losing proposition. Thousands of farmers are being forced to commit suicide every month. India continues to steadily plummet on the human development index as well as other indices designed to measure the well being of society. The economic distress has been hugely aggravated by the unplanned brutal lockdown due to the Covid crisis. It has led to the loss of more than 10 crore jobs and enormous consequent economic distress.

All of this has led to a degradation of human rights as well as a degradation of democracy in the country.

Assault on institutions

The most serious assault with long lasting effect on our Republic has however been on account of the assault on our institutions. These include Constitutional bodies like the Judiciary, the Election Commission, the CAG as well as statutory bodies like the CVC, the CBI, Lokpal, and also universities and other educational institutions and bodies.

There has been a concerted attempt by this government to erode the independence of the judiciary, some of which has clearly succeeded. Even after the attempt to bring back the executive into the role of selecting judges through the Judicial Appointments Commission was scuttled by the Supreme Court, we have seen this government brazenly scuttling appointments of judges recommended by the collegium, by just sitting on those names that it find inconvenient; in particular, recommendations of judges from among minority communities. Apart from sitting for years on hundreds of recommendations, they have even refused to appoint inconvenient judges whose appointments have been reiterated repeatedly by the SC collegiums, in gross violation of the law.

The assault on the judiciary has led to the Supreme Court having virtually collapsed and has recently refused to act as the guardian of the Constitution and custodian of fundamental rights of the people. Thus even habeas corpus petitions and the challenge to the lockdown and denial of internet in Kashmir were not heard for months. Even when they were heard, they were frequently adjourned without any substantive relief. The Supreme Court also turned a deaf ear to the serious assault on Jamia and JNU. A new jurisprudence of sealed covers was evolved, to allow the court to accept and act upon unsigned notes handed over by the government to the court, without even being shown to the opposite party, in gross violation of natural justice. This sealed cover jurisprudence allowed the Supreme Court to put the lid on the case involving the mysterious death of Judge Loya, who was trying Amit Shah for conspiracy to murder. It also allowed them to put the lid on the Rafale defence scam. The deference of the Supreme Court to the government could however be seen most starkly during the lockdown, when the cases involving the violation of rights of the migrant labour came up and the court just deferred to the governments wisdom without even seriously examining the violation of the rights of these people, leading to their destitution, starvation, and forcing them to walk back home, sometimes thousands of kilometres. In all these hearings, curiously, the Solicitor General Tushar Mehta, who has become the governments point-man for all such politically sensitive cases, was allowed to be present - even without a court notice to the government or the filing of a caveat by the government; all in violation of rules. Often, the court had copies of notes and a report handed over by the Solicitor General, without any other parties having access to it and which often formed the basis of the orders of the court in these cases.

For the first time in more than three decades, fingers are being pointed at the independence of the Election Commission and the CAG. We have seen a sharp erosion of the independence of the Election Commission and now we find that important decisions of the Election Commission, especially the announcement of dates of elections and the enforcement of its model code of conduct are increasingly partisan and virtually decided by the government. Officers from Gujarat who are said to have been close to the Prime Minster and Amit Shah, have been appointed to the Election Commission with the present Chief Election Commissioner not only being from Gujarat but also one who figures in the Radia tapes; where he talks to her about an acquaintance who claimed that he had paid 9 crores to obtain a favourable judgement from the then Chief Justice of the Punjab and Haryana High Court. That such a senior officer did not bother to report this serious corruption of justice to any authority, but quietly mentioned it in gossip with a corporate lobbyist Nira Radia, speaks volumes about his character. It is because of the erosion of public confidence in the independence of the Election Commission that people have become very nervous about the integrity of the electronic voting machines; and there is now therefore a persistent demand especially by the opposition to go back to paper ballots.

Elections in the last six years are being increasingly influenced by money power. This is partly because the Election Commission has failed to enforce the limits on spending by political parties. But also because parties and candidates have begun to get unlimited amounts of money from their corporate cronies. Apart from not fixing limits for spending by political parties and not making laws to ensure that parties and candidates receive and spend money only through banking channels (cashless transactions which the PM wanted to impose on the country through demonitisation), three retrograde changes in the law of election funding have increased the role of money power and corporate hijacking of elections. The Foreign Contribution Regulation Act brought primarily to prevent parties, candidates and public servants from getting and being influenced by foreign funds, has now been amended to allow parties to receive foreign funds through subsidiaries of foreign companies. The limits on corporate donations to parties and candidates, which was earlier 7.5% of their profits, has been removed to allow unlimited corporate funding. Worst of all, a new anonymous instrument of political funding has been introduced through the instrument of electoral bonds, which are bearer bonds and which allow anonymous funding of political parties even through banking channels. Thus the path has been cleared for payment of bribes by corporations to the ruling parties through the device of electoral bonds which guarantee the anonymity of their donors. It is not surprising therefore that the BJP has received more than 90% of the thousands of crores of funding through electoral bonds in the last 3 years since they have been introduced.

All the above amendments of electoral funding which have been achieved by the dubious device of smuggling these amendments in through a Finance Bill which avoids the amendments being taken to and voted in the Rajya Sabha, where the ruling party didn't have a majority. The device of money Bill to bring about amendments to various laws which have nothing to do with the Consolidated fund of India, has been increasingly resorted to by the present government, making a mockery of the Constitutional requirement of bills being passed by both Houses of parliament.

Parliament itself has seen a steady erosion in the days of sittings, the time spent in any discussions and particularly the time spent to discuss laws which are passed. In the last six years, not even 10% of the slotted parliamentary time has been spent in any meaningful discussion and perhaps not even 1% to discuss the slew of laws that have been passed amidst shouting and confusion. The institution of parliamentary committees has also been virtually done away with, with fewer and fewer proposed laws being referred to them, where healthy discussion and public consultation could take place. Thus, far from making democracy more participatory, even in terms of allowing prior disclosure of Bills proposed to be passed or allowing any public participation in the laws to be made, even the present nominal representative democracy has been steadily emasculated.

In the audit of the Rafale contract, the government predicted in advance in a note given to the Supreme Court, three months before the CAG report was finalised, that the report would redact the details of pricing. This indeed happened three months later when the CAG report on the Rafale purchase was finalised and given to the PAC. The redaction of pricing details from a CAG report is not merely unprecedented, it is contrary to the CAG Act which requires the entire report to the sent to the PAC and tabled in Parliament. The fact that the government knew three months in advance that the CAG would bow to this illegal demand of the government to redact pricing details from its report, demonstrates the extent to which the independence of the CAG has been compromised by the government.

Despite the Lokpal Act being passed, for many years the appointment of a lokpal had been steadily stonewalled and even the inclusion of the leader of opposition in the selection panel of the Lokpal had been obstructed by this government. It also amended the Lokpal Act with alacrity to exempt public servants from making their asset disclosures to the government. Thereafter, even when the government was forced to appoint a Lokpal, it has appointed people who have not taken up even a single case for investigation for over a year now. This has made the institution totally ineffective. Also, for more than six years, the Whistleblower Act has not been notified. Instead, an amendment has been brought to the Act which will completely stultify the law. The amendment says that any whistleblower who provides any more information about corruption in the government than what an ordinary citizen can obtain under the Right to Information Act, would lose his protection as a whistleblower and would be liable to be prosecuted under the Official Secrets Act. Instead of repealing this colonial Official Secrets Act, this government now threatens to use it against journalists who have published documents exposing the corruption, violation of rules and the interference of the PMO in the Rafale contract. Apart from using the Official Secrets Acts, this government and its officers have also sought to use Contempt of Court as a weapon to intimidate activists and silence criticism of the government.

The CBI has been degraded further from being a caged parrot to blood hound of the government. When a CBI Director, whose tenure was protected, threatened to investigate the Rafale contract he was outsed in a midnight coup by the government and one Nageshwar Rao was appointed as Acting Director, who affected 40 transfers in the CBI within a day, at the behest of the government. The Central Vigilance Commission was for years headed by an officer who played a key role in suppressing incriminating documents recovered in the raids on the Sahara and the Birla Group of Companies which showed the PM and other BJP Chief Ministers as recipients of large sums of unaccounted cash. Another gentleman appointed as Vigilance Commissioner had been indicted by the CVC itself for having fabricated the confidential report of his subordinate senior officer of a bank of which he was Chairman, with the object of destroying the career of that officer.

The National Investigation Agency has become a particularly favoured tool of the government for harassing and hounding activists who are critical of the government. The NIA has been used to frame some of the country's finest human rights activists. The political use of the NIA can be seen from the fact that the Bhima Koregaon case, in which some of our finest human rights activists have been targetted and which was earlier being handled by the Pune police, was transferred to the NIA by the Central govt soon after a new non BJP government was formed in Maharashtra.

During the last six years, the Right to Information Act has been eroded by throttling the Information Commissions and not appointing people to man the vacanciesn in them. Even when the vacancies are directed to be filled by court orders, pliable bureaucrats have been appointed without any transparency in the selection.

Along with this, crony capitalism has grown enormously, with policies being increasingly controlled by large crony capitalists who ensure that policies and government decisions are tailored for their economic benefit and to the detriment of the common people. Our banks and financial institutions have been plundered by these crony corporates who now owe lakhs of crores of unpaid debt to our banks. Many of them have been allowed or made to flee the country and have comfortably ensconced themselves in London or tax havens like Antigua or Bermuda, while our government makes a show of searching for them, or seeking to extradite them. The Reserve Bank's independence has also been greatly eroded. Raghuram Rajan was shunted out as the RBI Governor when he disagreed with the government on several critical aspects and in particular wrote to the government about investigating and taking action against many high networth individuals who had taken huge loans from banks and constituted a high flight risk. His successor Urijit Patel, was shunted out after he disagreed with the government's desire to appropriate more than one lakh crores from the RBIs reserves. Thereafter the government has appointed Shaktikant Das, a professor of history, as RBI governor, who is seen as being totally pliable.

Universities and educational institutions and regulatory bodies have particularly been in the cross hairs of this government. Virtually every appointment of Vice Chancellors in universities have been made of people who are associated with the RSS or have been close confidants of the present rulers. Thus many appointments of Vice Chancellors as well as other educational regulatory bodies have been of people who have no academic qualifications for their jobs but have been placed there only due to their saffron links. Such persons have systematically not only crushed dissent but also dismantled the spirit of inquiry and critical thinking in these educational institutions. Suggestions have been made by these persons to put up tanks in the premises of their universities to instil "nationalism" among students. Some of our finest universities like JNU, BHU, Hyderabad University has especially borne the brunt of this assault.



The subversion of the independence of the mainstream media is near complete even in the absence of formal press censorship. More than 90% of the mainstream media has been reduced to becoming the propaganda arm of the government, going to absurd lengths to justify actions of the government which are otherwise totally unjustifiable. Some examples of this has been the coverage of the disastrous decision for demonetisation, the disastrous and brutal lockdown in the name of Covid, as well as the government's response to China's incursions into Ladakh. Prime Time debates on most TV channels are not very subtle attempts to fan anti Muslim prejudice among people, in line with the ruling party's agenda and its social media campaign. Fake news has become the order of the day. So much so, that a new term, "Whatsapp university" has been coined to refer to people who derive their information from Whatsapp forwards, which propagate falsehoods and outright fabrications, particularly in aid of fanning anti-Muslim prejudice. The submission of much of the mainstream media to the government has been brought about by a combination of inducements, threats, as well as media capture through crony capitalists. Many media organisations have come to be owned by businessmen who have various corporate interests and can easily be brought to heel and do the governments bidding by means of government incentives and disincentives, by way of plum contracts and threats of being victimized by the government's investigative agencies like the CBI, ED, Income Tax Department, etc. Others are bought by being given 100s of crores of government advertisements as well as packets which are supposed to go regularly to influential anchors and editors. There are only a few in the mainstream media who have refused to succumb to such inducements and threats or corporate capture by crony capitalists. Fortunately however, the increasing use of smart phones and the growth of the social media and the internet media, have allowed some independent media to flourish on these platforms, which are more difficult for the government to control. However the government still exercises some degree of control over them by threatening individual journalists and editors with FIRs of sedition, threatening and putting pressure on those few independent trusts that fund some of these internet media organizations, as well as by influencing and bringing to heel, major social media platforms like Facebook, Twitter, Instagram etc.

Thus, taking an overview of the present situation, it cannot be safely maintained that democracy and its institutions today are better and more robust than they were during the Emergency. The gains made in the 40 years after the emergency have been rapidly eroded by the assault on institutions and rights that we have seen, particularly, in the last six years.

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