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Today, institutions speak not for the rule of law, but for those who rule, unconcerned with the law.
Modi Jaitley
Finance Minister Arun Jaitley and Prime Minister Narendra Modi

Since May 2014, our institutions are afflicted with galloping atrophy. The war within the CBI, allegations made on oath before the Supreme Court involving corruption of high public functionaries, are not limited to one institution. The recent face-off between the RBI and the government, with the latter seeking to influence monetary policies, is fraught with danger.

A nine-hour-long meeting of the RBI’s Central Board on November 19 resulted in a temporary truce. The misgivings expressed in the public domain by no less than the deputy governor of the RBI in a public speech may well erupt in the near future. The government’s attempt to access a part of the reserves of the RBI has been temporarily forestalled. Consider this. There are no bankers on the RBI Board and no monetary policy expert. The Board consists of a few government officials, businessmen and two new members, S Gurumurthy and Satish Marathe. Both are ideologically committed. The nature of the Board’s composition is a matter of concern. In this context, the governor of the RBI has little space for manoeuvrability. The present ceasefire may not last. In the coming months, before the 2019 Lok Sabha elections, the government may well succeed in accessing RBI’s surplus capital.

The spectre of a large section of the electronic media eulogising the prime minister on the one hand and ensuring the blanking out of news that is critical of the government on the other, suggests that the one institution that has historically kept the government on its toes and served democratic traditions, has also capitulated. The institution has also been diminished by it forsaking any semblance of neutrality.

Governors have been partisan in the past, but have not been openly party to the Union government’s agenda. The recent decision of the governor to dissolve the J&K Assembly just when the PDP staked a claim to form the government is the latest example of institutional decline. Governors have, in recent years, facilitated formation of governments at the bidding of the Union and held back clear majorities even when governments appear to be in a minority. The role of the speaker in legislative assemblies is even more disturbing. The speaker, in matters of disqualification under the 10th Schedule, acts as a tribunal. It is settled that decisions of a tribunal are open to judicial review. When speakers choose not to take decisions which are inconvenient to the ruling establishment and let years pass by without acting on legitimate complaints relating to disqualification, the whole purpose of the 10th Schedule is subverted. Then, when courts render judgments to the effect that no mandamus can be issued to the speaker even though his position is that of a tribunal, it suggests that somewhere down the line, judicial decision-making has unwittingly jeopardised the rule of law. Four distinguished judges having aired their concerns in January publicly about the threat to democracy is yet another example of the institutional malaise that has set in. Unique procedures adopted by the Supreme Court in dealing with specific cases strike a jarring note.

The bureaucracy, too, has become captive to the diktats of ideological prescriptions. Individuals are appointed in key positions with the view to ensure that the so-called “political enemies” of the established ruling class are targeted. This reflects a level of bureaucratic subservience never witnessed before. The chosen few appointed to key positions, especially within the enforcement agencies, facilitate the rot. The positions of the chief vigilance commissioner, the enforcement director, CBI and the NIA are key in upholding the rule of law. If these institutions are compromised, its very foundation is jeopardised. The leadership’s favourite few, appointed in key positions in these institutions, are a threat to democracy. This rot must be stemmed. When political opponents are targeted and those whose names figure in unimpeachable documents are not investigated, the partisan nature of such institutions tends to destroy the confidence of the lay public.

Our country’s majoritarian thrust is denigrating not just the institutions under our Constitution, but others designed to protect democratic values. The independent voice of those manning our institutions has been muffled. Consequently, they speak not for the rule of law, but for those who rule, unconcerned with the law.

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The reason for this is the unique nature of Indian democracy. When a government has absolute majority in the Lok Sabha, it does not need the support of the Opposition in matters of policy, nor can the Opposition impact the government in decision-making in any substantial way. The 10th Schedule of the Constitution has ensured that members of Parliament have no voice in decision-making. This is because any violation of the whip issued in Parliament jeopardises their membership of the House. So, even if a member of the legislature disagrees with his own government, he can neither air his views nor question his own government since the whip requires him to vote for the government on the issue in question.

This is unlike any other democracy. In the presidential form of government in the US, the president, if he is a Republican, has to work with those who dissent within his party and also reach out to members of the Democratic party to ensure that his policies pass muster both in the Senate and in the House of Representatives. This applies in equal measure if the president is a Democrat. In England too, the Conservative party, if holding the reins of government, has to work with both dissenters within and members of the Labour party to ensure passage of bills. However, the unique nature of Indian democracy is held to ransom by majoritarian decision-making of a few individuals at the helm of affairs which is thrust upon the party in power and consequently on the people of India.

Today, the ruling establishment does not have a majority in the Rajya Sabha. The tyranny of the majority will be unleashed if and when that happens. The battle to save the fabric of our Constitution has begun. There is no option but to succeed.

Courtesy: This article is published in Indianexpress on 28 November 2018
(The writer, a former Union minister, is a senior Congress leader.)

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