Manish Tewari | Is institutional collapse this decade's new story?

As India heads into the third decade of the twenty first century what does the future hold for it? Does it stare into the abyss of an institutional collapse or will its state and non-state instrumentalities be able to ride out the contemporaneous reality?

To answer these enigmas, a peep into the past is thereby imperative. When the founders of the modern Indian state, most of them British educated lawyers, set out to build a new republic, at a point in time when the world was emerging from the ashes of a Second World War, they crafted an institutional design with a written Constitution at its very heart.

Inspired by the democracies of the West and liberal ideals, they drew on the experiences of those nations, but primarily settled on the Westminster model that was predicated on the cardinal principal of checks and balances, namely, an independent legislature, an autonomous judiciary, a free media and an accountable executive, that incorporated within itself “the steel frame” called the bureaucracy, often referred to as the permanent executive.

For the first two-and-a-half decades, since Independence, the system functioned well. The legislature was fearless, the judiciary autonomous and the media fiercely combative. A substantial number of the initial amendments to the Constitution were legislated to overturn the conservative and often textual view taken by the judges of the apex court.

The Supreme Court in 1973, in Re: Kesvananda Bharti, even laid down the basic structure doctrine, thereby declaring that certain features of the Constitution were beyond even the amending powers of the Parliament, thereby freezing the scheme, structure and construct of the Constitution into perpetuity.

The first crisis came with the imposition of internal Emergency on the 25th of June 1975. With the political Opposition in incarceration, the institution just keeled over. Those parliamentarians not behind bars lost both their courage and conscience, the judiciary crumbled with ADM Jabalpur (now overruled in Re: K.S. Puttaswamy v. UOI 2017) becoming the lowest point of institutional capitulation. The media acquitted itself no better. As the information and broadcasting minister in the post-Emergency period, L.K. Advani famously quipped about the Indian media: “You were asked only to bend, but you crawled.”

The key takeaway from this episode of our history is, when the political pushback is neutered, institutions or the people who populate them more than willingly fall in line.

From 1977 to 1989, chastened by the experience of the Emergency and despite governments with huge majorities in office between 1980 and 1989, both at the Centre and omnipresent in the state legislatures as well, other institutions were able to claw their way back to both independence and respectability.

Unfortunately, legislative institutions became a collateral casualty during this period. The 10th Schedule of the Constitution, also called the Anti-Defection Act, enacted in 1985 with the correct intent of curbing the menace of horse-trading in our legislatures, ending up sucking democracy out of these august bodies. They became platforms of whip-driven tyranny, whereby elected representatives became proscribed from acting according to their common sense, conscience or constituency interests.  

The judiciary’s finest hour came when India entered a phase of coalition politics from 1991 onwards. Though P.V. Narasimha Rao ran a single party government between 1991 and 1996, it did not have the muscle of earlier such governments, because it was not a majority government in the strict sense of the word. It was during this period that the Supreme Court in 1993 took away from the government the right to appoint judges to the higher judiciary by interpreting consultation to mean concurrence.

A brief glimpse of how the position with regard to appointment of judges evolved from a majority to a non-majority and then a coalition government situation is instructive; the “First Judges Case” (1981) held that “consultation” with the Chief Justice of India (CJI) in the matter of appointments must be full and effective. Nonetheless, it spurned the notion that the CJI’s opinion, though carrying great weight, should be preeminent. The Second Judges Case (1993) introduced the collegium system. It held that “consultation” really meant “concurrence”. It further stated that it was not the CJI’s personal opinion, but an institutional opinion arrived at in consultation with the two senior-most judges of the Supreme Court. On a Presidential Reference for its view, the Supreme Court, in the “Third Judges Case” (1998) enlarged the collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

For over two decades between 1993 and 2014, the higher judiciary expanded the frontiers of jurisprudence earning itself the sobriquet of an activist judiciary. It was also the golden period for the media. The liberalisation of the broadcast space saw a proliferation of news and current affairs TV channels, investigative journalism also flowered and the innovation of the Internet added a digital dimension to journalism.

All this started changing in 2014. With a majority government at the helm after 25 years and not really in thrall of either the idea or centrality of dissent in a democracy, institutions that virtually had an autonomous run for over two-and-a-half decades started experiencing a sharp, systematic and sustained pushback.

The first to crumble was the media. The transition from watchdogs to lap dogs was swift. The judiciary also had its last hurrah when they struck down the National Judicial Appointments Commission Act and the consequential constitutional amendments in 2015.

Even the Election Commission that had evolved into a fair arbiter of Indian democracy, especially from the stewardship of T.N. Seshan onwards in the 1990s has taken a hit and today is not perceived as impartial umpire, primarily due to it’s rather inexplicable defence of the Electronic Voting Machines (EVMs) that are perceived as riggable by a substantial chunk of the populace.

The institutional collapse only exacerbated further after the 2019 general elections that led to the further weakening of an already enfeebled Opposition.

The key takeaway, therefore, is that the Indian constitutional and institutional structure has not evolved in the past 70 odd years to a point where it can withstand the might of a majority if not ruthless government in the absence of a strong political bulwark unlike some of the older democracies, the United States and the institutional fightback against Donald Trump being the latest example.

It is, therefore, time that the Indian Opposition gets its act together. For, only a political pushback stands between the constitutional idea of India and a one-party majoritarian situation.