[By Bhanu Dhamija]

[A version of this article was published under the heading ‘PM Modi Or Constitution: What Explains India’s Democracy In Dire Straits?’ on The Quint website on 29 September 2022.]

Over the past eight years India’s democracy has taken a beating in several international rankings. Sweden’s V-Dem Institute downgraded us to an “electoral autocracy” just last year, and America’s Freedom House labeled India “partly free.” This fuels the belief that Prime Minister Modi is running roughshod over our Constitution, and that his Hindu majoritarianism is destroying India’s secular democratic traditions.

In a recent column in The New Times entitled “Modi’s India Is Where Global Democracy Dies,” Debasish Roy Chowdhury, a Hong Kong-based journalist, drew comparisons with Nazi Germany. He alleged that the Modi regime “uses co-opted government machinery, disinformation and intimidation by partisan mobs to silence critics while dehumanizing the large Muslim minority, fanning social division and violence.”

The real problem is that our Constitution has so many fundamental flaws, ill-defined provisions, and a general lack of checks and balances that ruling arbitrarily is not too difficult.

Prime Minister Modi is working within the confines of powers granted to him under the Constitution. He may be wily in their use, overreach, or work behind the scenes. But the real problem is that our Constitution has so many fundamental flaws, ill-defined provisions, and a general lack of checks and balances that ruling arbitrarily is not too difficult.

Consider the following constitutional defects that make India’s Prime Minister all-powerful. A country with a permanent Hindu majority has an inherently majoritarian Constitution. It creates a winner-take-all government under the majority party led by the PM. India’s Constitution also grants the PM all executive and legislative powers, making Parliament a mere rubberstamp. It gives the PM authority to appoint and control the President, ostensibly the country’s highest official.  It allows the PM to handpick state Governors and control state finances. It allows him to run his political party directly or with a handful of cronies.  The Constitution also gives the PM exclusive control over powerful investigative agencies, like the CBI and ED. And it grants him complete authority over the country’s Election Commission, the body that runs all central and state elections. The list is endless. 

I have written before about our Constitution’s poorly conceived checks and balances. [1]

Arbitrary Rule Existed in Pre-Modi India

Previous popular Prime Ministers also took full advantage of these flaws in our Constitution. In 1951, Nehru’s use of the President’s Rule in Punjab set a precedent for the PM controlling state governments. Throughout his time in office, his refusal to grant the President any discretionary powers, even though such an Instrument was promised in the Constitution, led to the presidency becoming impotent. Nehru pushed constitutional amendments through Parliament to suit his programs: the First Amendment (1951) shielded his Zamindari Abolition Law from judicial review, and the Fourth (1954) gave government the authority to seize private property, removing a fundamental right.

The most brazen example of arbitrary rule is of course Indira Gandhi’s Emergency. Her 42nd Amendment (1976) altered the balance of powers in favor of the PM so completely that the Constitution became unrecognizable.

As for Modi’s exploitation of his Hindu support, the writing has been on the wall since the beginning of the Republic. India’s citizenry is 80% Hindu; sooner or later this majority was going to flex its muscle. That is why at the time of Independence many of our best minds suggested that India not adopt a majoritarian, winner-take-all Constitution. Even the British cautioned that their parliamentary system was unsuited to Indian conditions.

Today majoritarianism here is rising, not unlike in the rest of the world, due to the excesses of minoritarianism. For decades various Indian political parties appeased our minorities, abused their vote banks to gain power, and fragmented society in the name of multi-party democracy. Now that the Hindu majority vote has consolidated behind Modi, expecting him not to brandish his near absolute power is naïve.

If India wants a less majoritarian country, and a restrained Prime Minister, we must fix our flawed Constitution.