Current Threats to the Constitution

This is the text of the Krishna Bharadwaj Memorial Lecture, delivered by Prashant Bhushan at Jawaharlal Nehru University on March 14, 2019.

 

Sixty nine years ago, we framed a constitution and founded a republic. The foundations of this republic are a democratically governed society with various fundamental rights guaranteed to every citizen and the establishment of institutions which will preserve democracy and the rights of citizens.

 

Though we founded a representative democracy where people do not have a direct say in government decision making or law making, but it is implicit that for democracy to be meaningful, the people must have adequate information about what is happening in society, how the country is being governed, what kind of law and policies are being proposed, so that they can discuss all these issues and express their opinion about them.

 

It is also necessary in the functioning of democracy that power and in particular financial power is not so unevenly distributed, so that a few people will be able to in Noam Chomsky’s words “manufacture consent” by using their power to advertise and influence public opinion.

 

Our constitution also guarantees various fundamental rights to all citizens and some to even non citizens. The most important of these is the right to life and liberty which is guaranteed to citizens and non citizens alike which has been held by the Supreme Court to include not just the right to a bare life and bare liberty but also a life of dignity and thus having all those amenities and facilities which allow for a life of dignity such as food, shelter, education, healthcare, a healthy environment, a corruption free society, etc.

 

The right to liberty also requires a freedom from oppressive and draconian laws which jeopardise the liberty of citizens. In the other civil rights guaranteed by the constitution is the freedom of speech and expression which has been held to include the right to a free media as well as the right to information and therefore the right to be informed about the functioning of all public authorities and institutions. We have also been guaranteed the right to equality and therefore the protection of minorities from an assault on their rights by a communal majority.

 

Various institutions have been created by the constitution and the laws to guard the functioning of democracy and also to protect fundamental rights of citizens. These include an independent judiciary, which has been tasked to protect fundamental rights and to ensure that the executive and the legislature remain within the bounds of the powers laid out for them by the constitution.

 

An Election Commission has been created to ensure free and fair elections and all that is necessary for that. A Comptroller and Auditor General has been set up to do financial and performance audits of every part of the government which uses public funds. Special laws have been made to set up an independent Central Vigilance Commission which is supposed to not only accord vigilance clearance to public servants, but also to supervise the functioning of the CBI and act as the nodal agency to receive complaints from whistle blowers.

 

The Lokpal Act was brought in to set up the apex anti corruption ombudsman and the CBI Act to create an anti corruption investigating agency.  There are also various laws and institutions to protect the freedom of the press. A Salutary Whistle Blower Law was also passed.

 

If we do an audit of the functioning of our democracy, the health of fundamental rights of citizens and the health of institutions created to protect all of this, it might be useful to divide all that into what happened in the first 64 years and what has happened in the last five years since Independence—since as we will see the last five years have been a watershed in many ways.

 

In the first 64 years of our republic, our representative democracy made some progress and some regress as well. The breath and depth of education did improve overall during the first 64 years, thereby making way for a more educated citizenry.

 

The advent of the Right to Information Act in 2005, also led to a substantial advance in the progress of democracy as people got greater access to information about the functioning of public authorities.

 

A robust right to information campaign ensured that the RTI Act was used substantially leading to greater transparency of public institutions and authorities. The Election Commission also became more independent and robust, which led to freer and fair elections.

 

However, economic inequality of our society grew particularly after economic liberalisation, with policies focussing on GDP growth at any cost. This increasing economic inequality led to more and more wealth in the hands of fewer people at the top who could then use it to influence elections and thus our polity came to be controlled increasingly by large corporates and policies were tailored for the economic interests of large corporates rather than the people. This also led to the phenomenon of manufacturing consent as Chomsky called it.

 

On the front of fundamental rights, the first 64 years also saw some expansion of rights particularly by the Supreme Court through an expansive and creative interpretation of the right to life (which was held to include a right to live with dignity) and the freedom of speech (which was held to include the right to information, a free press, the right to privacy, etc).

 

There was also some improvement in the protection of Dalits and minorities with the creation of a Minorities Commission and an SC/ST Commission. Several rights based legislations have also been enacted especially in the first decade of the 21st century, such as the Food Security Act, the Forest Rights Act, the Rural Employment Guarantee Act, and the new Land Acquisition Act of 2013. These went a long way to expand and strengthen the rights of poor and marginalised sections of society.

 

The first 64 years also saw a strengthening of several institutions, including the judiciary, which become more independent and robust in general, despite other institutional failures of being inaccessible to the majority of the people, being lethargic and also unaccountable and corrupt.  Despite all these problems, its independence improved as the selection of judges was withdrawn from the government and vested with the judiciary itself. Though that led to slightly more independent judges being appointed, it did not necessarily lead to more honest or more competent judges being appointed.

 

The first 64 years also saw, strengthening of the independence as well as institutional depth of the Election Commission as well as of the CAG. Despite both these bodies being appointed by the government, this happened because of the growth of these institutions themselves and the breath and depth that was added to them, as well as an institutional embedding of their functional independence, which gradually seeped into the consciousness of the individuals who came to man these institutions, especially in the last 30 years.

 

The Supreme Court also chipped in to order changes in the method of selection of the Director, CBI, the Central Vigilance Commission and the Police Chiefs in order to make them more independent. The institutional changes directed by the court in the police organisations were such that if they had been properly implemented it would led to a sea change in the functioning of the police, at least with regard to its independence from the political executive.

 

Unfortunately, however, many of those salutary changes ordered which included the establishment of a Police Establishment Board for transfers and postings of police officers, the creation of Police Complaints Authorities for entertaining complaints against Police Officers and a minimum tenure for field level officers, have been frustrated by an obdurate executive in most states which want to have the police as their handmaiden, to be used for their political ends.

 

Assault on democracy

 

The last five 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.

 

The last few years have seen a steady erosion in the independence of the Election Commission, and after many years we are finding that important decisions of the Election Commission, especially the announcement of dates of elections and the enforcement of its model code of conduct, increasingly appear to be partisan and 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. He was at that time perhaps heading Air India.

 

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 five years are now 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. It has been estimated that one lakh crore would be spent by parties and candidates in the 2019 elections, out of which eighty thousand crore would be spent by the BJP and its candidates alone.

 

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 demonetisation), 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 receipt of 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 about 95% of the approximately 2,000 crore of the funding through electoral bonds in the last 2 years since they have been introduced.

 

All the above amendments of electoral funding 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 doesn’t have a majority.

 

The device of the 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 number of days it meets, the time spent in discussions and particularly the time spent to discuss laws which are passed. In the last five 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.

 

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.

 

During the last five years, the Right to Information Act has also been eroded by throttling the Information Commissions and not appointing people to man the vacancies. Even when the vacancies are directed to be filled by court orders, pliable bureaucrats have been appointed without any transparency in the selection. Simultaneously, crony capitalism has grown 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 crony corporates who now owe tens of 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.

 

Consequently economic inequalities have grown enormously and the GINI index that measures economic inequality is perhaps the highest in the world for India. It was recently reported that the wealth of the nine richest Indians is equivalent to the wealth of the bottom half of our population. All this, coupled with the control of few corporations over large sections of the mainstream media, has accentuated the manufacture of consent in India.

 

Erosion of rights

 

The last five years have also 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 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 is also sometimes picked up and amplified by those 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 secure in the confidence 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 have been directed against Muslims and Dalits;

 

2. 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. 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 organisations affiliated with the BJP and its assorted lapdog and media portals. 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.

 

The condition of the poor and the marginalised has become even more helpless with massive unemployment and job loss in the last five years and increasing agrarian distress wherein agriculture has become a losing proposition and thousands of farmers are being forced to commit suicide every year. India continues to steadily plummet on the Human Development Index as well as other indices designed to measure the well being of the majority of society. All of this has led to a degradation of human rights as well as a degradation of democracy in the country.

 

The most serious and long lasting assault 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, in which it has succeeded to some extent. 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 finds inconvenient; in particular, recommendation of judges from among minority communities have borne the brunt of this assault by the government.

 

Apart from sitting for years on several recommendations, the government has refused to appoint inconvenient judges whose appointments have been reiterated repeatedly by the SC collegium in gross violation of the law.

 

For the first time in more than three decades, fingers are being pointed at the independence of the Election Commission and the CAG. 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 of the CAG to be 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 more than five years ago, the appointment of a lokpal has been steadily stonewalled and even the inclusion of the leader of opposition from the selection panel of the Lokpal has been obstructed for five years by this government, which amended the Lokpal Act with alacrity to exempt public servants from making their asset disclosures to the government.

 

Also, for more than five years, the Whistleblower Act has not been notified, while an amendment has been brought to the Act which will completely stultify the law by saying 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 the 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 ousted 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 is 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 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 for destroying the career of that officer.

 

Universities and educational institutions and regulatory bodies have particularly been in the cross hairs of this government. Virtually every appointment of Vice Chancellor in universities has 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 and Hyderabad University have especially borne the brunt of this assault.

 

Reclaiming the Republic

 

The republic founded by our constitution makers is therefore under siege today. Reclaiming it would require a slew of several fundamental and wide ranging reforms in our laws, policies and institutions. Many of these have been suggested in a document titled “Reclaiming the republic” prepared by a group of concerned and eminent citizens of this country from among academics, activists, lawyers, judges, etc.

 

In this document, we have tried to put together a list of the most essential and urgent reforms in laws, policies and institutions which are necessary to reclaim the republic and democracy and for fundamental rights and regulatory institutions to survive in this country.

 

Pushing through these reforms would be a massive undertaking and would require a major campaign on the part of a very large and broad section of our civil society activists, movements and other concerned citizens. The stakes are high for all of us and I hope we can all rise to the occasion.

(The author is noted Supreme Court advocate)

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