India’s Constitution is under threat again, says Prashant Bhushan, well known Supreme Court Advocate and political activist. In a recent speech in Delhi, he pointed to the erosion of independence of institutions, such as the Election Commission, and to the many assaults on people’s rights (see below).
This is the second time India’s Constitution is under serious attack from government overreach. The last occurrence was in the mid 1970s during Indira Gandhi’s Emergency. She grabbed all powers, arrested leaders of the opposition, and unleashed a series of attacks on fundamental freedoms. Not only that, her government so altered the balance of powers of the original Constitution–making President subservient to the Prime Minister, for example–that it was unrecognizable. Famed constitutional scholar, Nani Palkhivala wrote, she had “defaced and defiled” the Constitution.
Clearly, India’s Constitution is too easily ignored and abused by those in power. A Constitution that cannot protect itself, cannot protect the people. A good Constitution must have internal safeguards to shield itself from overzealous governments and autocratic leaders.
It is time we ponder over this lack of checks and balances in our Constitution. It desperately needs a comprehensive fix. A bandaid approach would not suffice, nor would it last. The best fix is to completely junk this Constitution and adopt a US-style system, which is renowned for its checks and balances. In the US Constitution’s 230-year history no government has ever been able to act autocratically or bend the Constitution out of shape.
[Excerpts of a lecture delivered on March 14, 2019, first published on the Wire website.]
Current Threats to the Constitution
By Prashant Bhushan
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 the important decisions of the Election Commission, especially the announcement of dates of elections and the enforcement of its model code of conduct are increasingly seen 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 crores would be spent by parties and candidates in the 2019 elections, out of which eighty thousand crores would be spent by BJP and their 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 2000 crores of the funding through electoral bonds in the last 2 years since they have been introduced.
All the above amendments of electoral funding which 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 didn’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 days of sittings, the time spent in any 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, also the Right to Information Act has 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 their 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. It was recently been reported that the wealth of 9 richest Indians is equivalent to the wealth of the bottom half of our population. With all this, coupled with the control of few corporations over large section 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 the 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 with 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 has been directed against Muslims and Dalits
2. That 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. That 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 organisation 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 in which agriculture has become a losing proposition and thousands of farmers are being forced to commit suicide every month. 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, some of which has also succeeded. 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 find inconvenient, in particular, recommendations of judges from among minority communities have borne the brunt of this assault by the government.
Apart from sitting for years on hundreds of recommendations, they have even 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 to the sent to the CAG and 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 this 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 other 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 Chancellors in universities have 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, Hyderabad University has 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 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.
This article was first published on The Wire on 30 March 2019.