The warning signs

Babasaheb Ambedkar, and the members of the Constituent Assembly, sought to draft our Constitution with the express purpose of creating the right balance between the three fundamental pillars of governance: the Legislature, the Executive and the Judiciary. Legislative supremacy in accordance with the provisions of the Constitution, an apolitical bureaucracy and civil service, and a free and independent judiciary, were the key features of the Republic. However, recent developments create serious doubts about the intention and the actions of the BJP-ruled Central government. Is there a design to unhinge the carefully worked out system of checks and balances enshrined in our Constitution

The recent public outburst of Chief Justice T.S. Thakur of the Supreme Court on the BJP government’s non-cooperation in clearing the names recommended by the Supreme Court collegium for appointment of judges is a matter of serious concern. It is true that the government wished to change the system by which judges appointed judges under the collegium system. In fact, perhaps India is the only democratic country in the world where judges have exclusive jurisdiction in the selection of judges. The National Judicial Appointments Commission Act (NJAC), passed with overwhelming support in Parliament in 2014, sought to change this practice. But, it is also true that the Supreme Court in its wisdom struck down that bill. That restored the status quo ante.

The question now is this: if the Supreme Court has declared the NJAC to be ultra vires of the Constitution, should the government seek to subvert or derail or delay judicial appointments through executive obstructionism The legislature is always free to pass a new act (and that too could be challenged in the Supreme Court), but once the Supreme Court has pronounced judgment on the old one, the executive cannot challenge the supremacy of the judiciary through other means. This principle is important because the independence of the judiciary is a fundamental feature of the Constitution. Cooperation, not confrontation, should guide the governments interface with the judiciary, but today we have the unedifying spectacle of the Chief Justice of India publicly lamenting that, given the government’s approach, the very process of dispensing justice could grind to a halt.

It appears that there is also a systematic attempt to dilute the apolitical character of the executive. There are complaints from many quarters that officers to key positions are being screened for their political loyalties. Such complaints speak of a carefully designed attempt at “saffronisation” in bureaucratic appointments. This process is particularly in evidence in the choices being made by the ministry of HRD and that of culture. The idea seems to be that once an appointment is made of a person with the “right” loyalty, he or she becomes imbedded in the executive matrix, and can be relied upon to select and promote more people of the same ideological hue. The net result is a ripple effect, whose implications can continue long after the current dispensation demits power.

Where the legislature is concerned, the BJP has an overwhelming majority in the Lok Sabha won through a legitimate democratic process. But should this legitimate majority in the Lower House prompt some of its senior leaders to question the legitimacy of the constitutionally-sanctioned powers of the Rajya Sabha, merely because in the Upper House their party does not have a majority Does the brute strength enjoyed by the BJP in the Lok Sabha entitle it to redefine what constitutes a money bill, so that Rajya Sabha’s powers in the clearance of bills are diluted The Rajya Sabha, as the Council of States has, in the constitutional scheme of things a clearly defined role to play, that acts as a check to a possibly impetuous majority in the Lok Sabha. Threats to bypass it by holding a joint session of both Houses may be possible, but hardly desirable.

The media is considered the informal “fourth” pillar of a democracy. But here too we are witnessing a concerted move to erode its freedom. Editors, who have the courage of their convictions and refuse to become compliant, are being summarily fired. An identifiable and large segment of the media has been constrained to choose supine conformity as against robust objectivity. Some of this pressure is blatantly coming from the government. Why else would the ministry of information and broadcasting ban the transmission and retransmission of NDTV India for a day on November 9 Strongly condemning this action, the Editors Guild of India has said that it is “reminiscent of the Emergency”. The News Broadcasting Association (NBA) has also expressed its deep concern. As expected, the government has dubbed these comments as “politically inspired”!

Civil society, another essential ingredient of all vibrant democracies, is also being pressured. Using the technicalities of the Foreign Contribution (Regulation) Act, the Union home ministry has already cancelled the licences of 11, 319 NGOs. Licences of another 1,736 NGOs have been withheld on the plea of non-sufficient documents or deficient documents. Roughly one-third of India’s 33,138 NGOs have been debarred from receiving foreign funding. Most recently, 25 more NGOs have been refused the renewal of their registration because of “activities not conducive to national interest”.

Any criticism of the way things are heading is deflected by the absurd invocation of “pseudo-nationalism”. Essentially this boils down to asserting that if you support the BJP you are patriotic, and if you oppose it you are anti-national. Charges of sedition are slapped on dissenters at the drop of a hat. There is a brittle rejection of any difference of opinion, a muscular dismissal of even constructive criticism, on the specious ground that your bona fides as a loyal citizen of India are suspect.

Just half way through its term, BJP rule at the Centre has brought into sharp focus some foundational questions about the kind of Republic we were envisaged to be, and how that ideal is being eroded on a daily and institutional basis. It is time for all Indian citizens to clearly see the warning signs.

The writer, an author and former diplomat, is a member of the JD(U)