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The Supreme Court Never Fails to Disappoint

Avay Shukla

If you’ve been a keen observer of the public discourse in India, you are probably immune to the bizarre and outlandish statements made by the worthies holding public office.

Like the Scowling Sherpa’s revelation that “there is too much democracy” in India, or a minister in Davos claiming that high unemployment indicates self-employment, or the Supreme Leader’s assertion that not an inch of Indian land has been occupied by the Chinese, or a Minister for Human Resources in NDA I debunking Darwin’s theory by maintaining that none of his ancestors ever saw an ape turning into Homo sapiens. We are, of course, the swine who should be grateful for such pearls of wisdom, but two recent pearls, cultured in our very own fascist laboratory, have taken even my post-Diwali asthmatic breath away.

Arguing for the government in the Supreme Court, the Attorney General made two astounding averments: one, that the voter does not have any right to know how his vote has been recorded or counted, and two, that the public does not have the right to know who has contributed how much to which political party.

The first statement was intended to counter the very legitimate demand for a more extensive VVPAT verification of the votes cast in the EVMs, the second was in response to the challenge to the electoral bonds, which have effectively become the BJP’s private ATM.

We have never been in doubt that these statements are a faithful expression of the BJP’s private views, but the sheer brazenness of declaring it openly ― and in court! ― is mind-blowing. It is beyond arrogance and hubris, it shows utter contempt for the public, the constitution and (dare I say it?) even for the highest court.

Translated into language which we porkers can understand, the government is actually saying: we will have our way, we don’t give a tinker’s cuss for what the citizenry thinks or what the court decides; we have the majority in Parliament (even if Mahua Moitra and her Louis Vuitton bags are not expelled) and can pass any ordinance or Bill we are inclined to. Misplaced confidence and hubris, did you say? You would be wrong, dear reader, because past events have proved that they are right. The judiciary has never been an obstacle to the ruling party’s rampaging depredation of our social, constitutional, legal and institutional landscape. One cannot help feeling that the government’s impudence is due in no small measure to the court’s accommodating and obliging behaviour.

The Supreme Court never fails to disappoint, like on the petition for legalising same sex marriages, and on Manish Sisodia’s bail application. These were vehemently opposed by the government. Both were dismissed, quite against the run of play. Both judgments came as a surprise, not only because of their inherent contradictions, but also because in comments, the court had appeared to favour the petitioners’ cause.

The order in the same sex marriage case is retrogressive and mired in a medieval mindset, which exposes the court’s disconnect with a rapidly changing social order. By refusing to legalise same sex marriages, or allowing same sex couples to adopt or giving them civil rights as a couple, the court may have warmed the cockles of the BJP/RSS heart but it has also given a thumbs up to obscurantist forces. By directing the government to set up a committee under the Cabinet Secretary to examine conferring more rights on queer people, the court is displaying its naivete, or deliberately deluding itself: does it really expect an officer who is on extension in service and who has been party to every unilateral and illiberal  decision taken by the present regime, to propose any expansion of the rights of this section, which this government is vociferously opposed to?

The logic in the Manish Sisodia case is even more difficult to comprehend. The court had time and again castigated the prosecution for lack of evidence. It had even said that there was no money trail to link Sisodia with any bribe, and that the ED’s case would collapse during trial. And yet, it denied him bail. This can only encourage the government to lock up more people, confident that the courts will not offer bail. Clearly, this order is based more on presumption than on solid evidence.

The electoral bonds question was taken up after five years, the delay allowing the BJP to mop up almost Rs 5,500 crore, more than all other parties combined. The court concluded hearings and reserved its order more than two weeks ago, again giving the BJP the opportunity to open the window for another tranche this week. This will enable it to secure all the donations it needs for the 2024 elections: whatever the court now decides will be irrelevant for the coming general elections.

In the Maharashtra case between the two Shiv Sena factions, the Speaker continues to ignore, if not defy, the SC’s repeated orders for a quick decision. The Speaker has been given a long rope that he is using to strangle whatever vestiges of democracy remain. The Article 370 case similarly hangs in limbo, the orders reserved, and democracy continues to elude Jammu and Kashmir. The Bilkis Bano case has disappeared from the radar, if not the court’s registry. Whatever happened to the Pegasus Committee report, or SEBI’s investigation into the Adani conglomerate?

With every day’s delay in deciding such crucial cases, or in delivering reserved orders, the status quo (which can only favour the government of the day) becomes a fait accompli, all the more difficult to reverse. It emboldens the government to continue with its bulldozer tactics, and to take the court for granted. Which is why the Attorney General can make the kind of statements he does and continue cocking a snook at the court. Earlier this month, he even cautioned the court not to cross its limits, when the CJI fixed December 31 as the deadline for the Maharashtra Speaker to decide the MLAs’ disqualification case!

It may be that the court wishes to avoid a confrontation with the executive, and therefore “urges” when it should direct, or “requests” when it should mandate, or “persuades” when it should command. But such a timid approach is not working; it takes two to avoid a clash, and this government is perpetually in adversarial mode. Moreover, it also reduces the majesty of the law and dilutes the credibility of legal institutions in the eyes of the citizenry.

We need the court to administer the law without fear or favour, to practise within the court what it preaches in keynote speeches. We need less rhetoric, obiter dicta and moral grandstanding from the judiciary and more concern for foundational freedoms and rights, stern messaging to the government, and imposition of consequences for defying orders. ‘Stooping to conquer’ may be an interesting phrase for an Oliver Goldsmith play, but entirely inappropriate for our current political environment; the phrase ‘flattering to deceive’ may describe it better?

(Avay Shukla is a retired IAS officer. Courtesy: Author’s blog, View From [Greater] Kailash )

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SC ‘Appears to Foster’ Culture of Secrecy, Does Not Seek Electoral Bond Details from SBI

Rosamma Thomas

In its order of November 2, 2023 on the case of Association for Democratic Reforms vs Union of India contesting constitutional validity of electoral bonds, the Supreme Court directed all political parties to give particulars of the bonds received by them in sealed covers to the Election Commission of India. SC sought that information be updated until September 2023.

The SC has also sought “detailed particulars of the donors against each bond”.  It has sought information from the political parties about the “amount of each such bond” and “particulars of the bank account to which the amount has been credited.”

These details listed above were to be submitted to the Election Commission by the end of the working day of November 15, 2023, in “double sealed cover” (“one duly sealed envelope containing the particulars and second duly sealed envelope containing the first envelope”).

Sunlight, the old adage goes, is the best disinfectant – publicity, likewise, is healthful to the morals of government. Should not political parties ideally be obliged to publish details of amounts received in donation in the newspapers?

Just as businesses produce annual reports, to communicate their successes and record accomplishments and offer information about their functioning, should not political parties that seek to represent citizens offer periodic reports about the sources of their funds and the activities they have undertaken to further their goals?

Yet, the Supreme Court itself appears to foster the culture of secrecy in politics, seeking information that ought to be proudly placed in the public domain in “double sealed envelopes”.

Yet, as transparency activist Commodore Lokesh Batra is at pains to point out – the Supreme Court appears to have been misled in passing this order – the information it has sought is not available, in the first place, with the political parties.

Lokesh Batra says, Supreme Court appears to have been misled: information it has sought is not available with political parties

The court should ideally have sought information about the details of donors from the State Bank of India, whose 29 branches across the country are authorized to encash the bonds – political parties receive Electoral Bonds that are promissory notes, akin to the currency note, and although they are likely to have full knowledge of who the donor is, they are within the law to claim that they have no knowledge of the identity of the donor.

Commodore Batra points out that the SBI, as per its Know Your Customer protocol, would have details of the buyers of these bonds, for the purpose of making the donation to a political party; SBI would also have details of the political party account where the bond is redeemed – thus the information should have been sought from SBI rather than political parties.

Commodore Batra soldiers on in his quest for sunlight, seeking information about the Election Commission’s compliance with SC orders.

Given that the Supreme Court works to its own timetable, and given that under the Right to Information Act, there is a month’s time to respond to applications, there is likelihood that the next hearing would occur before the information is made available through RTI.

On such uncertainties rests the fate of transparency in electoral funding in India. 

(The author is a freelance journalist. Article courtesy: Counterview,  a newsblog that publishes news and views based on information obtained from alternative sources, which may or may not be available in public domain, allowing readers to make independent conclusions.)

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Decaying Institutions and Diminishing Democracy of the Indian Republic

M.G. Devasahayam

Ratification of the constitution enters its platinum year on November 26 and so is the Indian Republic. This is the occasion for adult citizens of this land in general and senior citizens who were born before that date, in particular, to introspect as to what happened then and where we are now.

I am among those who were born in the decade when India got its independence and went on to become a Sovereign, Socialist, Secular, Democratic, Republic with a written constitution. On that day a miraculous transformation had happened in my life – from a ‘subject’ of the Maharaja of Travancore, I had become a ‘citizen’ of India. It is a miracle because a ‘subject’ in a kingdom is “one who is placed under authority or control such as vassal to a king/monarch and governed by the monarch’s law” and has no rights of his/her own. On the other hand, ‘citizens’ in a democratic republic have the supreme power and rights which they exercise by voting and electing representatives who enact the laws and govern on their behalf. This was the political transformation.

A social transformation had also happened. The kingdom of Travancore then was a “Hindu Rashtra”. Centuries ago, in 1750, Martanda Varma dedicated his kingdom to his tutelary deity Sri Padmanabhaswamy. As a result of this, Travancore state became the property of this deity making the King a servant of Sri Padmanabha. The flagship of “Hindu Rashtra” was the practice of caste and communal discrimination and intolerance. The most prominent Hindu scripture that advocates the doctrines of the caste system is the Manusmriti. Also known as the Mānava-Dharmaśāstra or Laws of Manu, it is believed to be the first ancient legal text and constitution among the many Dharmaśāstras of Hinduism. With Manusmriti’s major caste division into high and low castes, there was a rampant practice of discrimination in terms of untouchability and unseeability, meaning that it was not only the physical touch of the lower caste that was pollutant to the upper castes but even the very sight itself could pollute. And I, by birth, had belonged to this ‘untouchable/unseeable caste’ and faced political and economic ostracism of the worst type.

All these elements of ‘monarchy’ and “Hindu Rashtra” crashed once the constitution was ratified and then adopted on January 26, 1950 with four cardinal objectives which are to be “secured by the state for all its citizens”: (1) Justice-social, economic and political; (2) Liberty of thought, expression, belief, faith and worship; (3) Equality of status and opportunity and (4) Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. It is this constitution that raised me from being an “untouchable subject” to that of a “sovereign citizen” of the world’s largest democracy. Can there be anything more precious and priceless?

This is the gift of democracy and it is indeed a tragedy that this profound knowledge was not imparted to my generation or to the ones that came after. In the event even now the vast majority of Indians do not know the difference between the ‘subject’ and ‘citizen’ and continue to consider themselves as the former rather than the latter. When I try to explain this to the audience of students and teachers in colleges, I see only bland faces! No wonder successive elected governments have succeeded in treating the Indian public as ‘subjects’ instead of ‘citizens’ except for the purpose of casting their votes!

As we enter the platinum year of the Republic, the precious gift of democracy is fast diminishing and is being replaced with the notion of Hindu Rashtra. This is because in ‘New India’, the institutions of democratic governance have been decaying rapidly and are fast losing their capacity to uphold the values of democracy and constitutional norms. Let’s look at three core institutions of democratic governance.

Parliament

Parliament, which is hypocritically hailed as the “Temple of Democracy”, is in sharp decline and is being ruthlessly stymied and desecrated. Its composition – a large percentage of MPs with declared criminal record, and vast wealth – itself is not conducive to democratic governance. Full sessions have been cancelled and Zero/Question hours severely truncated. Vital issues that haunt the nation and its people – death and destruction caused by COVID-19, Chinese incursion into Ladakh, the critical state of the economy, massive unemployment, brazen sale of public assets, galloping price rise and inflation, rising poverty, festering farmer’s/fisherfolk issues, to name a few – are not even discussed in parliament. And MPs who raise these critical issues or ask uncomfortable questions are either disqualified or threatened with expulsion. Rahul Gandhi and Mahua Moitra are typical examples.

Parliament deceitfully passes laws as Money Bills. Several draconian and predatory laws have been rushed through in an arbitrary and autocratic manner, not complying with even elementary principles of democracy. And the way parliament proceedings take place, its watchdog Committees function and the laws enacted could even shame autocratic states!

Chief Justice of India himself castigated this on Independence Day 2021: “If you see debates which used to take place in Houses in those days, they used to be very wise, constructive… Now, (it is) a sorry state of affairs…There is no clarity in laws. It is creating a lot of litigation and loss to the government as well as inconvenience to the public.” In the event, the cry that democracy is being murdered in parliament rings true.

Supreme Court

On the role of the higher judiciary, especially the Supreme Court, this is what one of its former judges said, “The public perception of the vast majority of Indian citizens is that the Supreme Court, of late, has largely abdicated its solemn duty of upholding the constitution in its true spirit and protecting the liberties of the people… It is no longer doing its constitutional duty of protecting citizens against political and executive high-handedness, arbitrariness, and illegalities. Instead, it seems to have largely surrendered before the government, whose bidding it is often doing.”

It looks as if constitutional values which define democracy such as liberty, fundamental rights, equity, electoral integrity, human rights, and dignity of the individuals are very low priorities for the apex court!

Election Commission

It is an autonomous constitutional body with a mandate to discharge its onerous responsibility of conducting elections in a free and fair manner. Of late, EC has not been discharging this responsibility well. It looks as if the Commission has been captured and eviscerated as evidenced by these happenings:

• EC has been deliberately and brazenly ignoring and trivialising major flaws pointed out by experts and political parties regarding the conduct of elections. These include integrity and inclusiveness of the electoral rolls to ensure that no voter is left out; EVM/VVPAT voting and counting not complying with democracy principles and end-to-end verifiability; criminalisation of electoral politics and the evil role of money power including electoral bonds; improper scheduling of elections and failure in enforcing the Model and Media Codes of Conduct.
• Election Commissioners, including CEC, attended a meeting summoned by the PMO and chaired by the principal secretary to the PM to discuss some “electoral reforms”. By obeying PMO’s diktat, the Commissioners have committed gross constitutional impropriety which has never happened before.
• EC actively facilitated the passage of Election Laws (Amendment) Bill to link voter ID with Aadhaar. This measure, which could sink democratic elections, was done at the behest of the PMO. And though ‘voluntary’, EC is coercing the voters to do the linkage with threats of deletions from the voter’s list.
• When electoral bonds were first announced in 2017, EC had opposed it saying it “compromised” electoral transparency. The Commission flip-flopped later and supported the bonds in 2021 and opposed the plea for a stay in the Supreme Court.
• Even now, Prime Minister Modi and home minister Shah are indulging in brazen violation of the Model Code of Conduct in the poll-bound states (announcing a five-year free ration for 80 crore “poor”, Rs 24,000 crore tribal package, free tour of Ram Mandir, etc.) and EC is not lifting a small finger.

All these indicate that there is a clear and present danger to India’s democracy while the prospect of its return to Hindu Rashtra is rising fast.

The words “election” and “democracy” have become synonymous. As of now, the only way to choose our representatives to govern ourselves is through the electoral process. The Universal Declaration of Human Rights of 1948 states as much: “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

This is further fortified by the ‘Social Contract’ theory propounded by political philosophers Thomas Hobbes, John Locke, and Jean-Jacques Rousseau, through which democracies have emerged and evolved, that state power is justified and lawful only when consented to by a majority of the governed. This consent can be derived only through an honest and genuine electoral process which is not possible when core institutions of democracy decay and then die. Because democracy is championed and sustained by institutions, not Individuals.

Hindu Rashtra rising and democracy diminishing in ‘New India’ could devastate world order and cannot be countenanced.

(M.G. Devasahayam is a former Army and IAS officer. Courtesy: The Wire.)