How grave is the threat to Indian democracy? Former judges, lawyers and academics discuss

Systematic hollowing out of independent institutions, undemocratic changes and additions to laws, trampling down of rights of minorities, selective adjudication of cases by constitutional courts, and targeted and selective harassment of journalists were listed as symptoms of the backslide of democracy in India

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OVER the last few years, the rumblings of erosion of constitutional values and, even more worryingly, constitutional morality, have begun to turn into a chorus as a diffused but colossal challenge seeks to upturn the pledge the Indian republic made to itself at its birth. There is also a growing awareness that this challenge is unprecedented in its nature as well as its scale, raising alarm among concerned citizens and votaries of democracy.

On Saturday, former judges, senior advocates and academics gathered to discuss the symptoms of and solutions to the apparent threat to the Constitution at the 'Save the Constitution, Save the Country' convention organised by the All India Lawyers Union ('AILU'), the Delhi Union of Journalists ('DUJ') and the Democratic Teachers Front.

The panel at the Convention, held at the Indian Society of International Law in Delhi, included former Supreme Court Justice V. Gopala Gowda, former Delhi High Court Justice Rekha Sharma, senior advocates Indira Jaising and Raju Ramachandran, secretary of the AILU P.V. Surendranath, former Secretary of the DUJ S.K. Pande, and former secretary of the Delhi University Teachers Union Nandita Narain.

There were differences and similarities in the assertions made by different panellists. While Jaising believed that it is only democracy, in its true sense, that can save the Constitution and hence, we must save democracy first, Surendranath believed that saving our constitution should be the first step toward resisting the onslaught on core democratic values. Meanwhile, multiple panellists flagged the undermining of federal principles, the continuous assault on the media, the simultaneous stooping down of it, and the inadequate resistance shown by the Supreme Court and High Courts.

Justice Gowda: 'Post 2014, Supreme Court hesitant to go against the executive'

Justice Gowda, whose tenure at the Supreme Court went on from December 2012 to October 2016, warned about the rise of "right reactionary forces" in his speech.

He expressed the belief that the Supreme Court's Ayodhya judgment of 2019 enabled right-wing reactionary forces to raise claims over other mosques across the country such as the Gyanvapi mosque, stating further that this has proved to be a "great threat to the Republic of India."

The Constitution of India, in its preamble, guarantees the realisation of values of liberty, equality and fraternity; "Now these are endangered because of reactionary elements and the State transforming into a Hindu fascist one. All pillars are being taken over by such forces", said Justice Gowda, citing the example of 2019's Citizenship (Amendment) Act, which is yet to come into force because of frequent postponements in notifying Rules under it.

On the performance of the Supreme Court in the recent past, he stated that several significant cases had been ignored or given inadequate attention, reminding the audience that the petitions against electoral bonds for being opaque and for unequally favouring larger parties, have not been taken up by the court yet.

"Before 2014, the Supreme Court was not hesitant in going against the executive in matters involving high political stakes. Judiciary was seen as a crusader against corruption." After 2014, he said, the Supreme Court has presented a "meeker" version of itself. "The verdict in politically-charged cases like Sahara-Birla, Judge Loya's case, the Bhima-Koregaon cases, Rafale [and] Aadhaar has invited lots of criticism from the public."

Referring to the functioning of institutions meant to act as checks on executive power, Justice Gowda said even the Election Commission had "buckled under pressure". Meanwhile, two governors of the Reserve Bank of India, "Raghuram Rajan and Urjit Patel, were forced to resign."

He also lamented the manner in which certain laws had been introduced and passed without prior consultation with the relevant stakeholders or discussion in the Parliament itself.

Justice Sharma: 'We need to come out of our deep slumber'

Justice Sharma, who served at the Delhi High Court from February 2005 to July 2011, asked at the outset "Why are we discussing this topic? And why today?"

She said despite the existence of a Constitution that ensures the rule of law and protects the rights of citizens "to our dismay, we find the Centre bossing over states, citizens in distress, administration going haywire, law and order under stress and judiciary losing its direction. But perhaps the main sufferer is the citizens."

Calling for a thorough introspection by citizens, she said "We need to come out of our slumber and look deeply and critically at what is happening in the name of the Constitution."

Like Justice Gowda, Justice Sharma too lamented the functioning of the judiciary in the recent past. "Judiciary in India is said to be independent, manned by men of integrity, it is said… It is meant to prevent the people in power from going crazy. But is it really so?", she asked rhetorically.

Confronting the institution that she used to be part of, she said "The judiciary fails at its duty when bail is not granted to incarcerated citizens who deserve it, or even when it is granted after an inordinate delay. It fails when someone dares to speak the truth, and as a result, is put behind the bars and is left to rot there. It fails when justice is not equally distributed. It fails when after-retirement benefits become more important (to judges). When it sits down at a time when it should be standing up."

She averred that, in the recent past, the judiciary has failed its citizens many times. "It failed when a needy old citizen was put behind bars, only to silence his voice, not even provided with medical aid", referring to tribal rights activist and Catholic priest Father Stan Swamy, who died in July 2021 after prolonged illness during his incarceration as an accused in the Bhima Koregaon case.

We are living in a time "when legitimate power given by the people is being taken away by illegit means…governed by those who think there's only one side to a problem, that is, their side. In a time when hope itself has disappeared." Justice Sharma contended.

"This topic is relevant, as well as necessary because we are on our knees, and seem to have forgotten how to be on our legs", she ended her speech by saying.

Jaising: 'Only true democracy can save the Constitution"

"The Constitution of India is being ignored today, and being bypassed through conscious legal and extra legal means" said senior advocate Jaising, who was the keynote speaker at the event.

In her opinion, the oft-used term "undeclared emergency" does not capture the whole truth. "While the emergency did not deny the legitimacy of liberal democracy as such, today, there is no pretence by the ruling party to defend liberal democracy." 

In fact, the stated aim of the ruling party's ideology is to transform India into a Hindu State, and to breed the idea that Vedic India was liberal and that there is continuity between ancient India and the Constitution of India, she contended.

During the Emergency of 1975, she noted, the transformation from democracy to authoritarianism was brought through constitutional provisions themselves, that is, through the declaration of Emergency under Article 352 of the Constitution on account of "internal disturbance". "The Constitution itself was the centre of the Indian political universe." 

Comparing the situation during the Emergency to now, Jaising noted that "Except for the abrogation of Article 370, the rest of the Constitution has been left largely intact. Its liberal democratic character has not been altered by amendments or otherwise. Particularly, the provisions on fundamental rights remain unamended."

Yet, "minorities are lynched, journalists are prosecuted or, worse, killed, lawyers are attacked for doing that professional duty, Muslim homes are bulldozed allegedly for being "unauthorised", rapists are given remission, activists from civil society are thrown behind bars, lawyers like me are being prosecuted for doing our professional duty and political opponents arrested by the [Enforcement Directorate] and accused of money laundering."

Meanwhile, the present government is "simply ignoring the Constitution", because it does not see it as a hurdle in achieving its aim of a Hindu Rashtra, she believed.

Deploring the decline of rule of law, Jaising said these are times of "targeted prosecutions for some and impunity for others, based on political considerations", citing the example of Anurag Thakur (then a minister for state, now a union minister) who was seen chanting "Desh ke gaddaro ko, goli maaro saalo ko" soon before the riots started in North East Delhi in February 2020, resulting in the death of 53 people, a large majority of whom were Muslims.

But paradoxically, anyone opposed to the ideology of the ruling party is, by the mere fact of dissenting, deemed to be an enemy of the State, she argued. "Efforts are made to transform the State as one not governed by the constitution, but by an ideology of cultural nationalism, culture here being represented by Hinduism. "

Jaising maintained that during the last seven years, India has witnessed a "systematic undermining of Parliament's authority", by either "bulldozing through" laws in the Parliament or through subordinate legislation.

When the Union Government enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, The Leaflet, of which Jaising is a co-founder, had challenged them for being ultra vires of the Information Technology Act, 2000 and the provisions of Articles 14 and 19 of the Constitution. In an August 2021 order, the Bombay High Court imposed a partial stay on the rules, stating that they "would have a chilling effect on free speech."

Referring to the title of the event, Jaising said "It is only democracy in its true sense that can save the Constitution and hence, if we wish to save the Constitution, we must save democracy first."

Ramachandran: 'Judiciary and media must rise to the occasion'

"There has been gradual obliteration of State and religion in India", said senior advocate Ramachandran at the event.

The Supreme Court had "openly embraced" the building of the temple in Ayodhya, Ramachandran said, adding that it is becoming increasingly tough to demarcate between the State and religion.

The judiciary has had a "very mixed record", he said.

Flagging the widely-reported tussles between governors and state governments ruled by opposition parties, he stated that "Governors are being hand-picked by the Union Government", citing instances from Kerala, West Bengal, Tamil Nadu and Telangana.

"Democracy is subverted when Governors prevent democratically elected governments from functioning freely", he said.

What also undermines democracy, he believed, is the practice by political parties of "nominating chief ministers", where a party doesn't present a potential chief ministerial face before the results are announced, leading to a situation in which the chief minister might not reflect the views of the people who voted for them, since he was "nominated" later.

Echoing what Jaising said about the ignorance of the Constitution, Ramachandran said that in the 1970s, the subversion of the Constitution happened through amendments. "But what do you do when the Constitution is being ignored or kept in abeyance? That is why the situation today is much more frightening."

Much has been written about the attacks on media freedom, but the role of media itself in undermining the Constitutional values has not been adequately highlighted, Ramachandran expressed.

"Both the judiciary and the media must rise to the occasion", Ramachandran concluded by saying.