RIGHT ANGLE – India’s Unelected Rulers

Ever since Narendra Modi became the Prime Minister of India in 2014, one has been hearing frequent lamentations by a select-group of Indians that Indian democracy is under threat and that the right to dissent, a cardinal democratic principle, has been crushed by a “fascist government”.

Incidentally, all the members of this group share a world view that has been hugely influenced by western thoughts and ideologies. In fact, it will not be wrong to say that these ladies and gentlemen find everything abhorrent with India’s traditional values, wisdom and practices. In fact, some of them believe that had the Muslims not come from Central and West Asia to rule the country in the medieval times, Indian civilization would have collapsed and been buried like the Maya, Çatalhöyük and the Mississippians.

Besides, most of these ladies and gentlemen are educated in the leading educational establishments of the country, all located in top urban centres. Some of them have got even higher degrees from foreign universities like Oxford, Cambridge, London and Harvard. Predictably, while they all call themselves to be “liberals” or “Left-liberals”, they are the worst practitioners of classical liberalism that value dissent. Though it is a different matter, they never allow any dissent to their views; and if you do oppose their views, you will be trolled and dismissed as a “fascist”.

Above all, most of them are related directly or indirectly with the top elites of the country who assumed power soon after India became independent in various fields, be it politics or bureaucracy or education or legal system or art or music or sports. In other words, they share an echo-system of India’s ruling class. This class genuinely believes that it is the sole repository of the wisdom in the country and therefore the country will read only those books that its members write, practice only those laws that its members say and administer only those rules and procedures or ways that its members devise.

In sum, though there have been periodic elections in the country and the governments have been made and unmade, in the real sense of the term, the governance of the country has always remained in the hands of these very persons. This point needs a further explanation.

A cardinal feature of every genuine democracy is that it does entail the idea of “separation of power” through its constitution. It talks of the executive (the government), legislature (parliament) and the judiciary exercising checks and balances of each other. However, as noted above, since the ruling elites in all these branches shared the same background and same ideas, there was hardly any scope for serious friction. And outside these three organizations, the bureaucracy, media, academia and the overall eco-system were manned by the same elite class.

Well, the legislature (Parliament) might have members from different backgrounds with different hopes and aspirations, but they were either easily co-opted or won over by the executive. In any case, their leaders were invariably established elites. Here, when one is talking of elites, one is not talking in party – terms. These elites might have belonged to different political parties, but their thought – processes were more similar.

For instance, whether it was an Atal Behari Vajpayee or a L K Advani or an Arun Jaitley, there were no fundamental differences between their thought processes and that of a Jawaharlal Nehru or Manmohan Singh in the real sense of the term. They all were the members of, and here I borrow Prime Minister Modi’s term – “the Khan Market Gang”. They and their supporters ruled India in every sense of the term.

However, 2014 marked a departure to the above feature. Modi became the Prime Minister. He was not a typical urban elite sharing the same school of thought to occupy the exalted office of the Prime Minister. In fact, he had not occupied any elected office in Delhi prior to becoming the Prime Minister (Even Deve Gowda was once a MP before becoming the Prime Minister).

Secondly, for the first time ever, Modi, as an Indian Prime Minister, tried to challenge these elites. His “executive style-electoral politics” depended on his direct contacts with the electorate, not through any medium that the traditional elites controlled. His belief that India needs a proactive path towards development, his immense faith in a strong and powerful India, his attempts at revealing India’s past glory, and his preference of empowering measures over what was hitherto called entitlements to remove poverty in the country – all this were in marked variance to the predominant thoughts or belief systems of the elites who ruled India unhindered.

This is precisely this resistance of these elites to Modi that is making news today. And since these elites still dominate the English press and the overall academia – the two institutions that matter in building perceptions – the Modi government is made a big villain. Because, these elites believe that it is their divine birthright to determine how India will be ruled, something Modi is not willing to concede.

And it is here that the importance of the separation of power comes in. Because of his direct contact with the Indian electorate, people vote for Modi, not necessarily his political party, the BJP. And since most of the BJP MPs get elected in Modi’s name, there is not much scope for any real conflict between the legislature and the executive. Of course, there are opposition parties but they are not in a strong position (because of their declining number) to stop Modi from functioning the way he does.

That leaves the judiciary. According to founding fathers of the Indian constitution, which came into force in 1950, the Supreme Court had three main functions – “original jurisdiction” over disputes between centre and states, “appellate jurisdiction” (the highest court of appeals), and “advisory jurisdiction” when the President seeks specific advice on apparent ambiguities regarding the interpretation of a clause of the constitution.

However, the Supreme Court of India grew considerably in power and stature since the mid 1980s when justifying why “Supreme Court of India should become Supreme Court of Indians”, it tried to expand ‘access’ to justice through what are known as Public Interest Litigations (PIL). It all started with landmark S P Gupta vs. President of India and others judgment, in which Justice P.N. Bhagwati, the key architect of PIL, relaxed the locus standi, and opened up the doors of the judiciary to “public spirited citizens”– both those wishing to espouse the cause of the poor and oppressed and those wishing to enforce performance of public duties.

He made it clear that “any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury could move the court. The court does not insist on strict procedures when such a person moves a petition on behalf of another or a class of persons who have suffered legal wrong and they themselves cannot approach the court by reason of poverty, helplessness or social backwardness.”

In other words, the court changed the old concept of locus standi by allowing people who had a stake, direct or indirect, in the outcome of a suit, to be represented in the judicial proceedings. PIL heralded the era of what is called “judicial activism” in India. Through PIL, the court creatively expanded “Fundamental Rights”, especially Article-21, to cover the right to live with human dignity, the right to livelihood, the right to education, the right to health and medical care of workers, and the right to a healthy environment.

In the process, the court has entered itself into the shoes of the executive branch. It now grants compensation to the victims, passes orders to rehabilitate bonded labourers, issues directions to rickshaw pullers and to prevent them from unemployment, frames guidelines to check environmental pollution and so on.

Why must the government provide sanitary pads to young girls in the schools? What should be the prices of the items that many of us buy from our departmental stores? Why is the government appointing some persons with undue speed in important positions? Why is the government not the right authority to decide whether medicines or vaccination should be free or not? On what basis did the government take the decision to demonetise higher currency notes a few years back and why cannot it repeat such acts? Should the government build new buildings for its offices? How will cricket be played in India and under what conditions?

The above list is just a sample of questions that the Indian Supreme Court has dealt with in recent years. And almost all these are matters that are, strictly speaking, under the domain of the executive, which is the government led by Modi.

Using the power of ‘continuing mandamus’ the Court is now giving the government a series of policy directions including conferment of statutory status to Central Vigilance Commission, manner of their selection, tenure and other nitty-gritty of executive job. In the similar manner of asserting its power of “judicial review”, the court in recent years has further sharpened its weapon of “continuing mandamus” for use; it has passed orders and formulated guidelines on issues of social welfare, environment protection, electoral reforms, etc.

Be that as it may, under the route of PIL, the Supreme Court is increasingly getting politicized. See the number of cases every day the active politicians as lawyers like Kapil Sibal, Abhishek Manu Sanghvi, P C Chidambaram , Prashant Bhushan, Sanjay Hegde and Dushyant Dave (all of them have pathological hatred towards Modi) force the Supreme Court to take of cases on an urgent basis and our Chief Justice accedes to their virtual dictates.

Each of these politician-lawyers thinks that Indians are buffoons to elect a government that the country does not deserve. Each one of them wants the Supreme Court to take over the governance and rule as per his or their dictates. They think only they have got the divine right to dictate how the country will be run. Unfortunately, the Supreme Court invariably falls into the trap of these politician – lawyers.

Because of this increasing politicization of the Supreme Court, it is possible that the Hon’ble judges are not realizing how they are killing the basic tenet of “separation of powers” that is the foundation of any real democracy. The executive, legislature and judiciary must have checks and balances against each other. But that is not happening now. They are increasingly playing the role of executive.

But that is not all. Now the Honourable judges of the Apex Court are not even hesitating to make laws themselves or dictate the legislature how to make and what laws. In fact, some Hon’ble judges have been on record that they do not care about the separation of powers and that they have every power to remain the supreme authority in the country, with every other organ of the country obeying them. They cite in this regard the Article-144 of the constitution that says that “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court”.

For instance, we are just witnessing the sensitive issue of the same-sex marriage that a constitution-bench led by the Chief Justice is hearing. The issue is sensitive in the sense that as an idea, the issue can create many social, psychological and legal complications. The government has rightly argued that given its implications, it is not the Court but the Parliament, consisting of the elected representatives of the Indian people, that can only frame laws in this regard, if at all. But the Hon’ble judges were not impressed. In fact, the Chief Justice of India is literally pleading like the chief lawyer for the same – sex marriage, if his reported remarks that “what data the government has to describe the demand for same sex marriage as an urban phenomenon? (as if the Court has the data that overwhelming majority Indians approve of the same-sex marriage)”, “why should the marriage be termed as a union of opposite sexes?”, and “why should not the institution of marriage evolve over time and go beyond the notion of physical union between the two?” are any indication.

This brings back my essential point of the “elites”, mostly westernized in their thoughts, who never want to give up what they think to be their divine power to determine how India is to be run. This class genuinely believes that it is the sole repository of the wisdom in the country. And this belief is reflected the most now in our judiciary that is not accountable to anyone. Our judges appoint themselves, something that is not seen in any other country in the world. You can remove a Modi from power, but you cannot do anything except abide by what our Apex Court Judges say and think.

Imagine you are a party or a leader who has been thoroughly rejected by the people of India. But you consider it your birth- right to rule India. The best you can do is to approach the Supreme Court whose judges appoint themselves and share your world view. And if these judges agree with you, then there is no need for a Parliament or the Prime Minister. Your words become the laws of the country. And you rule the country, whether elected or not.

Unfortunately, the above is no longer an imagination. It is increasingly becoming a reality. Indian democracy is in real danger today.