[Tarunabh Khaitan, a professor of Public Law at the London School of Economics, tells Karan Thapar that the Union government under Narendra Modi is “killing the constitution with a thousand cuts”. In an interview published by The Wire on November 13, Khaitan describes the framework through which the state of democracy in a country can be assessed. His analysis of the Modi government’s performance leads him to believe that India’s democracy is in peril. Khaitan also discusses the ways in which the first NDA regime and the second NDA regime are different. The first, he says, adopted a subtle, behind the scenes approach to go about its agenda. This allowed it to make changes quietly. But the second regime acquired a “swagger”, and has been more brazen in its agenda. This is also why several popular mobilisations – like the protests against the Citizenship Amendment Act and the farm laws – have cropped up during the second term, Khaitan says.

The following is a full transcript of the interview.]

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Karan Thapar: Hello and welcome to a special interview for The Wire. With elections due in six months in May 2024 which will also mark 10 years of Narendra Modi as prime minister of India, we ask a question that many have been asking themselves. Has the Narendra Modi government imperilled India’s democracy? Joining me now from London is someone who’s thought carefully about this. He’s a professor of Public Law at the London School of Economics, Tarunabh Khaitan.

Professor Khaitan, you’ve devised an analytical framework for studying when a democracy is in peril. That framework comprises three elements to do with how accountable is the executive. First, its accountability to the people. Second, its accountability to other state institutions like the opposition and the judiciary. Third, its accountability to the media academic criticism and civil society institutions. Can you start by explaining why this framework is the right way of judging whether democracy is in peril?

Tarunabh Khaitan: First, thank you Mr Thapar for having me here and it’s a pleasure to talk to you. So, the motivation behind this paper was to devise a framework that’s fair to the ruling party and the government in power. What we would not do for this purpose is a framework that criticises the policies of the government simply because I may not like them. It’s an elected legitimate government with a mandate to implement its policies, whatever ideological spectrum they come from.

So, the task was to devise a framework that distinguishes policy differences from a constitutional and democratic foundational undermining. And that is what this framework tries to do – which is, it does not go after what is the ideological makeup of this government, what policies it wants to implement, but the question is this: Does this government seek to fuse the ruling party with the state? Because as we know a famous political scientist once defined democracy as “a system in which parties lose elections”.

So if the government is doing things which make it harder for the ruling party to lose elections by entrenching it within the framework of the state, that was a problem. And if the executive which in my discipline in constitutional theory, we call it the most dangerous branch because it is the branch of the state that holds military power, that holds police power, right? It’s got the power of the sword. So the executive being the “most dangerous branch” is subject to a series of checks in a democracy, to make sure that it does not do the things that it can do and undermine the rights of the people.

So that was the framework I sought to design and hence the three typical accountability mechanisms that all democracies – all real democracies around the world – subject the executive to. Accountability to the people here and now. Accountability to state institutions which do two things – ensure that the government is accountable not only to the people today, but to future people. Even if all the people of India today unanimously decide that we should become an authoritarian regime, even then that would reduce or take away the democratic rights of future Indians and therefore impermissible, even to the people. And institutions ensure that – institutions like the Supreme Court, institutions like the Election Commission – ensure that the rights, democratic rights of future people are ensured. And because we never have unanimity in a democracy, other institutions as well as the media, the universities ensure that there is continuing democracy in between elections. Because democracy is not just elections every five years, right? So, how do you keep the government continuously accountable? By asking tough questions. So that is a framework of democracy and that was the metric, the measure, by which I sought to judge this government.

KT: Now Professor Khaitan you applied your framework to the first Modi government which served from 2014 to 2019. I’ll come to the second Modi government afterwards. But with specific reference to the first government, you write it did indeed seek to undermine each of these three strands of executive accountability. You say its mode of operation was subtle, indirect and incremental but also systemic. And you say this amounts to “killing a constitution by a thousand cuts”. Before we come to details, can you explain this further, this conclusion?

TK: Of course. So, there are no tanks on the streets of Delhi. The media is supposedly still free, the broadcasting tower has not been taken over by the government. There isn’t a state of emergency, the military is not on the streets. So, it does not feel like a 20th-century emergency. Now, before I directly respond to the question in the Indian context, I should locate it in a global context. Autocratic leaders of the 20th century have become smarter. They have learned from the failures of what we used to call “dictators” of the 20th century. Twentieth-century dictators were in your face, direct and they launched typically a full frontal assault on democracy. And the signs would be obvious, they would be visible. Indira Gandhi’s emergency is a clear example of that kind of in-your-face, visible, full-frontal assault on democracy.

Now at least since the turn of the century but actually typically, this happened after the fall of the Berlin Wall, democracy has become the key metric for the legitimacy of a government. It’s become much harder for a state to justify itself, to legitimise itself internationally if it’s not seen to be democratic. So latterday autocrats have learned that they don’t need to do all of those direct, full-frontal things. In fact, most of their agenda can still be realised while retaining the paraphernalia of democracy, by going through the motions of democracy and it’s more effective.

So, this is not just an Indian phenomenon. Across the world, you’ve seen in countries like Poland, Hungary, Brazil under [Jair] Bolsonaro, South Africa under [Jacob] Zuma, the US under Donald Trump. In a whole lot of these countries, we have seen a similar incremental, subtle but systemic style of autocratisation where you chip away at the foundations of democracy instead of launching a full-scale, full-frontal assault. That is the idea behind the thousand cuts. We don’t have one single big assault like the 42nd Amendment was and the Declaration of Emergency was under Indira Gandhi. We see a lot of micro-assaults which make it harder to see and harder to mobilise against.

KT: So to put it metaphorically and colloquially, this is not halal or jhatka, it’s as you call it ‘death by a thousand cuts’ – each little cut incrementally adds up to a further imperilling of democracy.

TK: Indeed, that’s a very good metaphor.

KT: Alright, let’s then come to the details. Between 2014 and 2019, India has held regular elections both at the state and at the national level. The Bharatiya Janata party has won some, it’s lost some and this has happened multiple times. So, on what grounds do you say it’s not been accountable to the people? Many would say the fact that it holds elections, the fact that it accepts its defeat, is a sign of accountability.

TK: Indeed. So, we must first understand that accountability is not a binary “either, or” phenomenon. Accountability is a scalar concept. You can have more or less of it and what we have seen is a gradual reduction in accountability on all three fronts and your question concerns the first front, which is electoral accountability, directly to the people.

So what are the things that the first Modi regime did or tried to do to undermine that accountability to the people? I’ll come to the paper later that discusses the things that have happened with the Election Commission and some credible grounds to worry about the even-handedness of the Election Commission in scheduling elections in the manner in which it held elections. But I put that to one side for now. There are three key things which the first regime did – the first two quite successfully, and the third was a thought balloon which might actually fructuate before the end of this parliament.

The first important thing was a concerted effort to delegitimise and disenfranchise the Muslim minority population of India. Now, as we know not all Hindus vote for the BJP but very few Muslims do because of its anti-Muslim political stance. We saw a whole range of efforts – the most important and the biggest amongst them was the National Register of Citizenship exercise in Assam, which although on its face was neutral in terms of religion and indeed ordered by the Supreme Court, by the judiciary. But this is an opportunist government which you know, “Behti Ganga mein haath dhona.” It saw an opportunity and ran with it. It’s the rhetoric around the NRC which was communalised in an astonishing way, especially by the chief minister of Assam, who talked about this as ensuring that the indigenous people of Assam [prevail]. The dog whistle politics around it was clearly anti-Muslim and polarising.

But that wasn’t the only anti-Muslim phenomenon. As we’ve seen, there’s a whole host of laws that were passed – especially in BJP-ruled states – which ensured or sought to ensure a second-class citizenship status for Muslims, including myriad anti-conversion laws, myriad laws to stop “love jihad”, myriad laws about cow slaughter. So an entire generation of, especially young, Muslim men being targeted and criminalised in ways that we have not seen in India before and perhaps more akin to the criminalisation of young black men in the US.

So that was the first dimension of electoral accountability. Of course, the Citizenship Amendment Act (CAA) was talked about, discussed and proposed in the first regime but it actually was not enacted until the second regime. But it did help with polarisation of the electorate.

The second question and much more meaningful in its impact on Indian politics was the 2017 finance Bill which through a surreptitious money Bill route to override the Rajya Sabha veto not only retrospectively overturned judicial decisions that had found both the BJP and the Congress to have violated campaign finance laws but also granted full anonymity to parties in securing electoral bonds. And this was dual anonymity because you would not know who the donors are, you do not know who the parties are. Now, of course, we know through the proceedings before the Supreme Court that it’s only partial anonymity. Why? Because the ruling party knows who is donating money to which party. But the opposition does not know who is donating money to which party. Now in a context in which supporting the opposition is risky business, this has completely changed the scenario in which party funding works in India. There is a lot of evidence – from self-declaration by parties, from reports by the RBI and the State Bank of India which issues these bonds and the Association for Democratic Reforms’ own research – that most of the funding is coming from corporates. We know that because of the size of the bonds being bought which are in the crores, not the lakhs. Just to give you one statistic in the financial year of 2017- 18, over 95% of the electoral bonds were purchased for the benefit of the ruling party and it formed a huge proportion of the BJP’s overall funding. So, this kind of… it’s not even tilting the field. It’s almost squeezing out the opposition from any financial breathing space within the electoral field. And as we know, the Supreme Court has taken its time…

KT: The third element? Because you said three elements account for accountability.

TK: The third was the thought balloon about simultaneous polls which we now know has been put into full gear. And that has two bad effects on electoral accountability. The first is, that it moves the system closer to a presidential model. We know that the….

KT: It hasn’t happened as yet. It’s only been talked about.

TK: No, it hasn’t happened yet. I think…

KT: So let’s then leave this discussion for Modi 2, because I think it’s more germane to Modi 2. But I’ll recap for the audience the two ways in which the Modi government has made itself less accountable to the people. One is through the whole set of discriminatory laws that target the Muslim community, that’s virtually 15% of our population pretty close to 200 million. And the second is the electoral bonds which confer the shroud of anonymity both on donors and on recipients and the major recipient, as you said in 2017, 94% was the BJP.

Let’s then come to the second point the second point. The second point is that when it comes to accountability to state institutions like the opposition and the judiciary. Most people would certainly readily accept that the Modi government is hardly accountable to the opposition. In fact, it’s not accountable to the opposition at all. But what about accountability to the judiciary? Where has the Modi government failed on that count?

TK: Well, so one of the first acts of the Modi government – and this was by the way with the support of perhaps a naive opposition because these were still early days and they thought this was going to be government as usual – was the constitutional amendment to change the judicial appointment system and one of the features of the new appointment committee was a much more stronger role to the executive government in appointing judges. Now, as we know that was struck down by the courts and the [Supreme] Court said it is going to retain the system of self-appointment of the judiciary through the collegium system.

Now what has happened since is astonishing… and since Indira Gandhi an unprecedented way in which the government has rejected, resisted, sat on, exercised pocket veto, of judicial nominees across the board – from the high court to the Supreme Court. It seems as if every single judicial appointment matters to this government in a huge way. And if you look at the kinds of judges that are being rejected, whose appointment is being stopped by the government, they are judges who have a reputation for being independent or have found in cases decisions or given judgments that have gone against the ruling party. So, that’s I think remarkably unprecedented since at least the late 80s in India. The second effort to compromise the judiciary…

KT: Can I just interrupt? There’s no doubt that the point you’re making is absolutely correct. The government has stalled… sometimes, they simply refused to respond to nominations given by the Supreme Court, it sat on them for not just months but even years at a time. But there is a remedy in the hands of the Supreme Court, which the Supreme Court has not exercised – which is the power of contempt. It could have acted against the law minister or the law secretary. It’s threatened on occasion by suggestion that it might. But it hasn’t done it. So, although the government has impinged on the Supreme Court, isn’t it equally true that the Supreme Court has the power to fight back and hasn’t exercised it? And that suggests that when it’s pushing the Supreme Court, the Supreme Court is happy to be pushed?

TK: That’s absolutely true. It is actually quite an indictment of our court. Now we should not expect a lot of courts in a democracy, the court… or in any system actually, the court is the least dangerous branch. The only power it has is the power of the pen and ultimately enforcement of judicial orders remains with the executive.

The second point I was about to mention about courts is the executive has simply ignored judicial orders, like in the Aadhaar case about not making it mandatory. So if the judiciary sees its orders that go against the government being ignored, there comes another big question before the courts. How far can they push and completely make the institution a laughing stock?

The third thing they’ve done is politically reward judges after retirement by giving them governorships, by making them MPs in parliament. We know about the infamous press conference in 2018, [the investigation into judge Loya’s death] that led to the press conference, where very senior judges were talking about how there was something rotten in the state of Denmark. The open call in 2018 to defy the Sabarimala judgment in Kerala.

All of this creates an atmosphere, a signal to the judges that this government is going to fight back. It’s not going to abide by the usual. So, in some ways, courts rely on a sense of constitutional civility or we can call it constitutional shame. It’s a way of doing things. You do certain things not because any other consequence will follow but because you live in a civil society where when your neighbour needs help, you offer that help because it’s civil to do that. Governments that don’t care about it don’t need to worry about courts.

KT: You’re saying that in its defiance of the court – whether it’s rhetorical or in terms of action – this government has been so lacking in civility to be almost – forgive my using that word – shameless?

TK: Oh, it’s it’s been totally constitutionally shameless. And even a brave court has to be a pragmatic court. I’m not defending the Supreme Court. I think a lot of these things could have been nipped in the bud if the court drew a hard line right from the beginning. Because the government also becomes more brazen once it knows that it can get away with things. So the more the court steps back, the more it’s an institutional fight. But you know, as the court itself is changing character with more pro-government appointees, this will change too.

KT: Now the third level of accountability is to the media, to academic critics, to the universities and to civil society organisations. Again, many people would agree that the Modi government has failed to be accountable at this level to all three of the institutions I’ve mentioned. Would you accept that this is where the Modi government’s deliberate lack of accountability becomes most glaring of all?

TK: I would agree with that. I should qualify my response by saying that the legal and judicial record of protection of civil liberties in India – whether it’s press freedom, whether it’s free speech, whether it’s freedom of association, freedom of movement, things that Civil Society needs to flourish – has never been particularly strong. We have always had a lackadaisical judicial approach to civil liberties. The reason why these things nonetheless flourished was because the governments in the past have again been relatively benign and relatively civil in their engagement with civil societies. They would go after certain types of activities but the bar for that kind of ‘lawfare’ or even illegal violence against civil society actors was quite high with previous governments. This government has lowered the bar enormously. It’s not just anti-state activities or separatist activities – which would trigger violence from previous governments. Anti-party activities, anti-party statements, anti-government, anti-prime minister statements are enough to trigger not only the legal machinery but also the violence. It’s the violence, the naked criminality of going after journalists, after students, after activists – whether it’s the Gauri Lankesh murder or the violence against JNU students or how the CAA protests were handled. That also sets India apart in the global scene, because it’s the naked use of violence that is distinctive against civil society in the Indian case and I think it’s really quite appalling. Even 10 years ago, I don’t think any of us you or I would have imagined India would be where it is today – where any of us saying anything in public have to think twice about whether we’ll get away with it.

KT: Would you say that the treatment of journalists, just to pick on that in particular, under Modi is worse than the treatment of journalists under the Emergency? Because this is insidious and creeping and it imposes people to want to censor themselves for fear of what will be the consequences. Its worse than the outright in-your-face censorship of 75. Would you agree with that or would you disagree?

TK: I would give a complicated answer to that. In one sense, the emergency was much worse because if you’re in prison, you can’t do anything at all. If there is clear censorship, then you can’t write anything. But what is different with the Modi regime across the board is this very insidiousness. One, it creates a climate of fear where you don’t know where the line is. Even in the Emergency, the line was relatively clear. You knew what not to cross. Here, the self-censorship becomes particularly important. And second, it’s very hard to mobilise and find allies against what’s going on because it’s hard to see what’s going on. You know it’s again the chipping away, the minor cut. So, in that sense, it is worse than the emergency because the people of India had no doubt about what happened in the Emergency and they threw Indra Gandhi out of power in the election that followed. That narrative is much harder to build today.

KT: Quite right, it’s happening behind closed doors in journalist offices or sometimes even in the minds of journalists. It’s not happening in a way in which the public readily recognises.

TK: Can I just mention one more point here Karan, which is the use of corporate power to silence media as well. The government through its crony capitalist, through its capitalist friends, has also been buying up dissenting media houses which is a global phenomenon. It’s been used very effectively in India as well.

KT: And also I might add the government uses corporate plans another way it sends signals to advertisers that a particular programme or a particular channel is not considered friendly, thus indicating we would prefer you not to support or advertise on this. And most corporates fall in line with the government because they don’t want to endanger the rest of their relationship with the government.

Let’s then take an overview of this point of the Modi first government from 2014 to 2019. You write and I’m quoting you, “Institutional mechanisms are undermined when their power relative to the political executive is diminished. They are captured when party loyalists take over the functioning of these institutions and make them pliant to the executive.” Which of the two applies to the first Modi government? Have they undermined institutions or captured them? Or possibly done both?

TK: It depends on the institution. So the institutions that were relatively easier to capture were those that were directly within the gift of the executive. So things like governor’s offices, the CBI, the Enforcement Directorate – all of which have been misused by previous governments, but not to the same extent and not for such a low threshold trigger that the Modi government has been doing. The naked blatant partisanship that we are seeing is quite different. I think it’s quite appropriate to say that these institutions have been captured by the Modi government, even when compared to previous governments.

A whole host of other accountability-seeking mechanisms I think have been undermined in the first regime. We talked about the courts… but also the whole host of what are called fourth branch or guarantor institutions like the Election Commission, the RBI and various accountability-seeking bodies. Capturing is the endpoint, it’s the goal. You undermine and you chip away and eventually, you come to control the institution either financially or through the personnel. So, they lie on a spectrum.

KT: And I imagine the treatment of parliament and in fact of parliamentary select committees is a particularly worrying example of how a major institution is undermined.

TK: Absolutely, absolutely. And we’ve only recently last week seen the appalling unconstitutional conduct of the ethics committee in the Mahua Moitra case.

KT: Now, you say the Modi government has sought to legitimise its undermining and capturing of institutions and it’s that I want to turn to at this moment. You say this legitimization has happened (a) through its discourse of hyper-nationalism; secondly, through its promised property decisiveness and efficiency and thirdly, through what you call “its welfarist developmental populist discourse”. Are you saying that nationalism, Hindutva and populist welfare policies are the facade or disguise behind which the Modi government has deliberately eroded and imperilled India’s democracy? This has provided the screen behind which they’ve gone on to do whatever they wanted to do.

TK: No, I don’t think I would say that. I think there’s a key difference between Modi’s style of authoritarianism and say Trump’s authoritarianism in the US. For the Trump regime, power was its own reward. Trump would say and do whatever would keep him in power. The Modi government, the BJP in power, is a committed ideological party and its agenda of Hindutva – which is to translate India into Hindu rashtra – is central. It’s genuinely committed to that agenda. Now the Hindu rashtra is democratic in a limited sense. So, it’s part of the agenda of making India into a Hindu Rashtra is that democracy becomes what Southeast Asian Nations have called a guided democracy – where the opposition works in a very constrained, limited space; there is a hegemonic ruling party. So Amit Shah’s brag about 50 years of BJP rule – it’s not just political bragging. I think there is a concerted, systemic, strategic effort to bring that about. I think undermining democracy and Hindutva are part of the same coin, hand in hand.

KT: Forgive my interrupting. So what you’re saying is Hindutva is not a facade or a disguise, it is the actual intent of the government. And a corollary of that intent is the undermining of democracy – or it may not even be a corollary, it is perhaps the purpose of that intent too?

TK: Precisely. Because if you imagine a democratically committed party, it is a party that will accept that sometimes it has to sit in the opposition, which means that sometimes its ideology will not form the policy of the state. Say a Left-socialist party will know that sometimes, the state will not be left socialist. But the Hindutva ideology does not permit that. The state itself, and not just the government of the day, must be a Hindu rashtra

KT: Now beyond the legitimisation that we’ve talked about, you also say that this assault on democracy was corroborated and in a sense enhanced by the way “the political opposition was constrained especially by targeting the offices and institutions in which it still held sway, such as the upper chamber in the federal Parliament, state governments that it controls and the office of the leader of the opposition”. I presume you could add to that the opposition’s own failure to resist or at least effectively fight back against what the government’s doing. So, not just the weakening of the opposition but the opposition’s failure to resist has in a way enhanced and corroborated this attack and assault on democracy.

TK: I think we need to make a distinction here between different parts of the opposition. I think, in fact, the main if not the sole fight back against the Modi regime has come from parts of the opposition. The regional parties – especially in Bengal, the Aam Aadmi Party in Delhi, the Shiv Sena, or at least part of the Shiv Sena now in Maharashtra, and some of the Southern parties, especially in Tamil Nadu. They’ve been very valiant because for them, they know the question is existential.

While all the institutions of the state have rolled over, including the courts have sort of held back… the opposition, the regional parties have put up a very valiant fight at a huge personal and political cost to themselves. The main failure of the opposition has been the failure of the main opposition party, the Congress and its failure has partly been the dysfunction within the party of taking years… and it’s cost India dearly of figuring out its own leadership and not taking the leadership to secure the opposition unity that is completely sine qua non (an essential condition) in a situation like this. If you have to fight a hegemonic party, the main opposition party has to show magnanimity, has to show alacrity. This should have happened in 2019, not in 2023. So that is where the failure has been and I think if the Congress had acted and behaved differently, the story of India would have been quite different today.

KT: This is where the crisis in Congress becomes in fact a crisis for Indian democracy.

TK: Absolutely. Which is why what happens within the party is not just a personal business of the party. As democratic citizens, we all should care about the health of our parties, especially the opposition parties.

KT: Finally, there are what you call design flaws in the constitution which have permitted the constitution to be killed with a thousand cuts. What are the sort of design flaws you have in mind?

TK: No constitution is perfect and every constitution is a product of its time. We have a very good constitution on the whole, but there are serious shortcomings. I think the most important design flaw in our constitution is the retention of centrally appointed governors in states and a relatively centralised system of federalism where states have limited rights and we’ve seen how the governors have been weaponised in an unprecedented manner under this government.

The second is an inadequate protection of opposition rights. We don’t have a constitutionalised office of the leader of the opposition. We don’t have opposition days in parliament, where the opposition once a week controls the agenda of parliament. We don’t have a minimum number of days that parliament must sit.

The constitution also delegated to parliament to decide how its guarantor branch institutions will be peopled. But parliament has not done that, which gives the executive the power to appoint all sorts of officers. We’ve seen the fight over the election commission with the Supreme Court. So these are just the aspects of the constitution where there was too much trust in the executive. I think constitutions framed with a Nehru or Mandela in mind can sometimes be myopic because they don’t think about life after their Nehru and Mandela and there are similar shortcomings in the South African constitution.

KT: Can I put it like this, if you design a constitution with Nehru and Mandela in mind you aren’t envisaging the possibility that people of lesser calibre, people whose intentions may not be so honourable, could one day sit in the same powerful seats that these men have sat in. That’s the “failure” of the constitution not to envisage how vile men can be.

TK: Absolutely, and that there will be an Indira Gandhi or a Jacob Zumo or a Narendra Modi who will occupy the same office and who will not have that same commitment to democracy.

KT: Now Professor Khaitan, you make one more point about the first Modi government. You say, and I’m quoting you, “The systematicity of its assaults on all accountability-seeking mechanisms made it different from previous governments which had all been constitutionally naughty every now and then. The subtlety and incrementalism of its assaults distinguished it from direct assaults and constitutionalism during the emergency.”

So has the Modi government placed India’s democracy in greater peril than any other earlier government?

TK: That’s a tough question to answer. The reasons why Indira Gandhi ended the emergency and called for elections remain mysterious. There was no compulsion. Her hand was certainly not forced, there was no external force that made her do that. She could have easily remained in power for the next decade or so.

In that sense, the fact that elections will happen and the opposition – howsoever minuscule – has a chance to perhaps at least fight and come to power, Indian democracy is in a better state than under the Emergency. It is in a worse state than the Indira Gandhi regime because it’s we sleepwalked into authoritarianism because we’re not aware of the danger our democracy and our constitution are in. And that is what makes this regime much more dangerous because the kind of urgency, the kind of sense of siege that democracy is under is absent, which means that the mobilisation and the fightback have not been of the same quality as they were under the Emergency.

KT: So what you’re saying when you say and I think I’m quoting you correctly “we’ve sleepwalked into authoritarianism” is that the people of India or maybe the institutions of India or maybe the opposition that is the most important political opposition to the government, none of these three categories were aware of what was happening realised what was happening and the extent to which it was happening. In other words, they had their eyes shut.

TK: Well, that is indeed the case but this is also harder to see. It’s just that the autocrats of today are much smarter and to some extent lack of constitutional literacy is also to be blamed. When we equate democracy with elections and forget that there’s a lot else that goes into designing a democracy, the second and the third dimension that I talked about, it’s harder to see when elections are still happening, that democracy might be under threat.

KT: Absolutely. But before I turn to the second Modi government, there’s a very interesting thought that will perhaps have crystallised in the minds of the audience. The Modi government 2014-19 is guilty of killing the constitution with a thousand cuts. But equally, the rest of the country was asleep and let it happen?

TK: Asleep and let it happen and I would say perhaps also complicit.

KT: Because they were asleep or because they were actually helping as well?

TK: Well, huge swathes of the state machinery – the bureaucracy, people in institutions of power – a lot of them must know what’s going on. And [they] either allowed it to happen or become scared and let it happen or wanted it to happen – it’s happened, that’s what we know. We can’t get into their minds. But the fact that they did not stand up for the constitution, I think is a huge indictment and I think history will judge these people very harshly.

KT: So again to put it in colloquial language, what Mr Modi has done in the last ten years to our constitution and our democracy is – if I can use that colloquial word – hateful. But equally what is hateful is that some of us were asleep and others because they allowed it to happen were complicit. In other words, they are also to some extent hateful in their either lack of response or in their complicity.

TK: Precisely.

KT: Okay, let’s then at this point Professor Khaitan turned to the second Modi government. I’m going to quote something you wrote a couple of years ago and ask whether you still stand by it or whether the situation has gotten much worse in the two-three years since. Here’s the sentence. You say, “Since its resounding victory in the 2019 general elections, the Modi government appears to have moved into consolidation mode.”

Has it simply consolidated? Or when you look back, has it gone much beyond the consolidation?

TK: So, I wrote that sentence shortly after the 2019 elections when the new government had taken office and what I underestimated and what I did not see then was just how important the Hindu rashtra agenda will become to the second regime. So the victory in 2019 gave a swagger to the government, it became overconfident and it decided that the subtle incremental cautious step-by-step agenda was perhaps unnecessary. It could do things in a more full-frontal way.

So we immediately saw the removal of Article 370, we saw the Citizenship Amendment Act being enacted, we saw the farm Bills being pushed through and a lot of the brazenness that was not there in the first regime suddenly became visible. And I had underestimated when I said consolidation… and by the way, this hurt the regime. Because with the kind of mobilization for example that we saw against the Citizenship Amendment Act, with tens of thousands of people marching across India and if the pandemic had not happened, that would have continued for much longer – or the kind of opposition to the farm Bills, we did not see in the first regime. So, an overconfident regime also painted a much clearer target than the incremental [way would have]. So in some ways, caution was thrown to the wind by the second regime.

So yes there was consolidation in the way that we have seen with the law on the Election Commission, the aggressiveness towards the judiciary increased manifold, the governors became a lot more brazen. All of the things that were happening more subtly… certainly, they stepped on the accelerator. But the Hindutva agenda, you know the entire point of Hindutva is symbolism. The Hindu rashtra is a symbolic ideal. Incrementalism doesn’t work there step by step, sotto voce, subtlety does not work there. The point is to shout from the rooftops and that is what is a defining feature of the second regime in my view.

KT: Let me ask you a specific question about Hindutva and the Hindu rashtra. Clearly, it’s acquired a much sharper cultural focus in Modi 2 than in Modi 1. I’m referring to things like the Citizenship Amendment Act, the handling of Kashmir, the sengol in Parliament, the persecution of Muslims in UP and Nuh and of course using the name Bharat in place of India. But is this simply, all taken together, undermining our democracy or is it also changing the character of the country?

TK: It’s defining or redefining who we are as a people, so it’s fundamental. You can say what you will about the RSS, the one thing they don’t lack is patience. This has been a single-minded focused agenda of the RSS for decades and finally come to fruition. I think effectively, I would say we are very close to if not already achieved Hindu rashtra – except for the formal declaration, that might be waiting. The second-class citizenship of non-Hindus is now enshrined in our laws like the Citizenship Amendment Act, the kind of mob violence we see across the country. What we have not seen is a clear ideological alternative to Hindutva. The Bharat Jodo Yatra was important in trying to get that message across through action. But actions have to be matched by words and the BJP is a master in coining memorable phrases. You know, the Congress could have thought about an alternative like the Hindustaniat right, which could have been imbued with ideas of a tolerance for pluralism, a tolerance for difference, of being happy with difference around you. We have not seen that counter, [another] way to belong [that answers the question,] what does it mean to be an Indian today.

KT: Quite right. Once again, the inability of the opposition to counter the message of Hindutva with an alternative paradigm of its own has assisted Hindutva in changing what I call the character of the country and what you call redefining us as the sort of people we are. A second key aspect of Modi 2 is questions that are raised by people like the vice president whether there is a basic structure to the constitution and the whole debate about whether we need a new constitution. That debate is certainly flowing not subterraneously but fairly at the surface at the moment. Do you see this again as a threat to democracy or is this questioning of the constitution being wrongly understood?

TK: So we should notice a mode in which this government functions. It has a very radical agenda to change not just the Indian constitution but the Indian people. And the way it works is, its most radical ideas are first floated as thought balloons by relative outsiders with plausible deniability. Then, that agenda is repeated adium to normalise it and then eventually enacted. We’ve seen this with simultaneous polls and this might be happening [with the demand for a new constitution]. So, I think we are currently in the thought balloon phase of changing or replacing the constitution. That is politically risky for the BJP because India’s Dalit population has a reverence for the constitution because of its association with Dr B.R. Ambedkar. So how this will play out remains to be seen. I think they’re gauging the popular reaction by floating the ideas, but yes if they do decide…

I think a lot will turn on whether they win and how they win in 2024. If they win big and if they think they can take that political risk and if they decide to go ahead, we may well have a new constitution and it will remain democratic by the way – but democratic in a very constrained very minimalistic way because a small constrained opposition that allows the regime to call itself democratic is hugely useful internationally. I mean, in that legitimising role that the label democracy [provides]. But yeah, we will become a “guided democracy” with a hegemonic party system.

KT: So at the moment all this talk about whether there is a basic structure or not, whether we need a new constitution or not is an incipient threat. Whether it materializes into a real threat will depend critically on how big a majority Mr Modi can win in 2024. That’s another reason why [the BJP winning] 300 plus [seats in the Lok Sabha] could be very worrying for the future of India’s character as a democracy.

TK: Absolutely. And I suspect that at least it’ll be politically wiser for them instead of making a new constitution, to do something like the 42nd Amendment – which was in effect a new constitution, but done not as a constitutional replacement but through the process of amendment – because you can still pay lip service to Dr Ambedkar and still move to a presidential system get rid of federalism and do all the other things and enshrine Hindu rashtra.

KT: And the interesting thing by the way is this talk about moving the system from a parliamentary to a presidential was also something that was discussed during the emergency if I recall correctly and correct me if I’m wrong. B.K. Nehru wrote a paper on the subject advocating a switch from a parliamentary to a presidential democracy and he was incidentally Indira Gandhi’s uncle or first cousin.

TK: It also came up in the Vajpayee regime, if you recall. The Constitution Review Committee was set up precisely for this task and it was President K.R. Narayanan’s intervention – [asking] whether the constitution has failed us or have we failed the constitution – which killed that idea, because that was a constitutionally civil regime. And by the way, the presidential system is every elected autocrat’s wet dream. That is what they all want.

KT: Absolutely. Now, a third aspect of Modi 2 are attempts to downsize or clip the wings of established institutions and political entities. I’m referring to the election commission, I’m referring to the powers of the Delhi government, I’m referring even to this incipient debate now we have a formal committee investigating the matter whether we should have simultaneous elections or not because if they happen it will certainly ensure that the autonomy of state legislatures will be curtailed so they can synchronize with the national legislature. Again, how serious is all of this in terms of the undermining of India’s democracy?

TK: Oh, this is hugely serious. I think in some ways they have already replaced the constitution and in some ways, Hindu rashtra is already here – the formal announcement is awaited. These changes will entrench the ruling party and will realise the 50-year reign that Amit Shah dreams of. A brave judiciary, a functional judiciary, a judiciary that saw the dangers and did not sit on cases for years could have nipped it in the bud but now much water has flown and now the judiciary itself is scared or compromised or unwilling to act for reasons that we don’t understand. All of these things will fundamentally change all the accountability mechanisms; the most dangerous branch has become even more dangerous.

KT: In which case, one last question. Has the peril to India’s democracy increased or at least become more widespread and comprehensive and not limited just to a few areas under the second Modi government? Or would that be an exaggeration?

TK: No, it has increased compared to the first government. I think the government’s swagger after the 2019 elections has made it a lot less cautious but the mask has also slipped. This is perhaps a hopeful optimistic note. The CAA protests changed the international at least complicated the international coverage of the regime. The first regime was largely still seen as a reformist modernist government that will do good to India. So the international press has become much more complicated and domestically many more people realise because of the full-frontal aspects of some of the things that have happened in the second regime that there’s something fundamental and existential at stake here. This is not just another government trying to enact its policy. So, yes it has been more blatant but that blatantness has come at a cost that the incremental, subtle, behind-the-scenes activities are a bit more obvious, a bit more seen a bit more visible.

KT: As you said the swagger of the government has grown but its mask at the same time has slipped, which if I were to misuse the King Canute analogy, what you’re saying is his majesty is strutting far more obviously but his clothes are becoming transparent.

TK: I could not have put it better.

KT: Professor Khaitan thank you very much for this interview. I think you’ve opened the eyes of my audience to a whole range of issues. I’m not sure whether you will be fondly remembered by the Modi government itself because I think you’ve exposed a lot that they’ve done, but I think there are many others in this country who will be deeply grateful for the analysis that you’ve offered. It will be controversial, no doubt there will be people in the Modi government who will criticise you. But there will be many others who will say thank God he’s explained things to us. Thank you very much indeed.

TK: Thank you very much. It’s been a pleasure.

(Courtesy: The Wire.)