“Many reforms are required but, ultimately, it is an informed and engaged citizenry which is the best check against the collapse of our republic.”
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ONE of the most well-known faces of India’s legal community, Prashant Bhushan is a public interest lawyer at the Supreme Court of India. Born on October 15, 1956, he has been an outspoken critic of the death penalty, India’s role in Kashmir and against Naxalism, and the treatment of minorities in the country. He has been a votary of greater judicial and government accountability, and was a member of ‘Team Anna’, a faction of the India Against Corruption movement that supported Anna Hazare’s campaign for the implementation of the Jan Lokpal Bill. He helped Team Anna found the Aam Aadmi Party, but later distanced himself from the party due to ideological differences. He is the National President of Swaraj Abhiyan, another political party he founded along with Yogendra Yadav, and the Sambhaavnaa Institute of Public Policy and Politics in Palampur, Himachal Pradesh.
While he was still a student, Bhushan wrote the book ‘The Case that Shook India’ (1978) on the court case that set aside Indira Gandhi’s Lok Sabha election in 1974.
In this interview, Bhushan talks to The Leaflet about the many symptoms of the illness he feels has gripped the Indian Republic, and meditates on the manner in which the health of the republic may be restored as it enters its 74th year.
Q: How do you see the state of the republic?
A: I don’t think that the state of the republic has ever been as bad as it is today. We are in serious danger of effectively losing our democracy, as the republic is virtually no longer a secular republic, several fundamental rights of citizens are in danger, and the independence of some of our most important institutions — judiciary, media and the Election Commission — are being undermined. Therefore, I don’t think that the republic has ever faced the kind of threats that it faces today.
We are in serious danger of effectively losing our democracy, as the republic is virtually no longer a secular republic and several fundamental rights of citizens are in danger.
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Q: When you say that the republic has never faced the kind of threats it is facing today, are you comparing it to the Emergency as well? Is the current situation worse than that period in India’s history?
A: Yes, I think the conditions today are worse than the Emergency because that period was one of a sudden shock during which the fundamental rights of citizens were suspended, a large number of people were arrested and the press was put under censorship. Yet the fundamental institutions of the country had not been dismantled or suborned by the government as is being done today. The nature of public discourse, especially through the mainstream media, had not been so corrupted, criminalised, trivialised and sensationalised as it is today. Therefore, in many ways, the situation today is much worse than it was even during the Emergency.
Though the Supreme Court or the independence of the judiciary crumbled during the Emergency a fair bit, yet the judiciary did not face the kind of systematic assault under which it is reeling today. During the Emergency, at least ten high courts delivered judgments in the habeas corpus case in favour of citizens, and it is the Supreme Court which went against the citizens, but today we are seeing an across-the-board crumbling of institutions, including of the judiciary and the media, and of course the Election Commission.
Q: How has this erosion happened? Can you elaborate on the “systematic assault” you have mentioned?
A: On one hand, the government has used its power of propaganda, both through the media as well as through social media — the IT Cell, etc. — to demonise and victimise minorities in this country, and to obliterate the ability of ordinary people to distinguish between truth and falsehood. It has promoted falsehood in a very systematic and organised manner, just like in Nazi Germany, where [German Nazi politician and chief propagandist for the Nazi Party, P.J.] Goebbels said that if a lie is repeated many times, it has the appearance of truth in the eyes and minds of a very large section of the society.
On the other hand, the government has indulged in systematic censorship to stop any views it doesn’t agree with, even if they are based in truth, from becoming freely accessible to the general public.
Besides the suborning of the media and the judiciary, other institutions have also been systematically assaulted. There is a sustained assault on free speech. There is unleashing of investigative agencies against dissenters and critics of the government.
Take the example of the recent BBC documentary, which lays bare what happened during the 2002 Gujarat riots, as has been borne out by many people, including senior police officers of Gujarat itself — that the riots were organised, aided and abetted by the government, the police was told to stand by and do nothing by the then Chief Minister, who is now our Prime Minister, etc. See how the government is clamping down on any interface of this documentary with the Indian public.
A kind of myth has been created that this is all false propaganda and the government had nothing to do with the riots. The myth has been strengthened by some unfortunate judgments of the judiciary absolving the Modi government. The same thing happened in [Union Home Minister] Amit Shah’s case, as he was accused of several fake encounters and thereafter the trial judges were changed, and one of the judges, Justice [Brijgopal Harkishan] Loya died in mysterious circumstances; his successor judge very quickly discharged Mr. Shah and thereafter the government did not carry the matter further in appeal. So, an appearance has been created to make out as if the judiciary has given him a clean check. These are all manufactured illusions.
Besides the suborning of the media and the judiciary, other institutions have also been systematically assaulted. There is a sustained assault on free speech. There is unleashing of investigative agencies against dissenters and critics of the government. There is suborning of the Election Commission, the Comptroller and Auditor General; even universities, police and other investigating agencies like [the Central Bureau of Investigation] and [the National Intelligence Agency], Enforcement Directorate and Income Tax department. All these institutions are being remade to serve a particular ideology and a particular agenda.
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The Parliament has also been greatly devalued by not having adequate number of parliamentary sessions, by not allowing any discussions on important issues and laws and bills, and by not referring any important issues to parliamentary committees. The Opposition is not allowed to question things or even say what it wants to say in the Parliament.
Free and fair elections are being undermined by the use of money power. Elections have been basically converted into a game of money. Several changes in laws have been made, including in the Foreign Contribution (Regulation) Act (FCRA), bringing in electoral bonds and doing away with restrictions on corporate funding of political parties. This has led to a situation where one political party, the BJP (Bharatiya Janta Party), has more than two-thirds of all the money held by or used by all political parties put together. The result is that — as elections become more and more a game of money and propaganda — it has become virtually impossible to defeat the BJP in any kind of election. And of course, on top of this, the old methods of ensuring elections are not free and fair are still used. For example, in the recent by-elections to the Rampur constituency in Uttar Pradesh, only half of the voting that normally takes place was recorded because most of the Muslims were not allowed to go out and vote.
The Model Code of Conduct is being routinely flouted by the Prime Minister and the ruling party, and the Election Commission does not enforce it against them. The dates of elections are being decided at the behest of the government and at their convenience. So gradually, we are losing even the semblance of being a democracy.
Q: You mentioned the BBC documentary. How do you see attempts by the ruling dispensation to deny involvement in the Gujarat riots internationally or officially (for example in a court of law), while proudly brandishing a particular kind of ideology that celebrates what happened in Gujarat in the court of public opinion?
A: The doublespeak is achieved because they have different constituencies to cater to in different spaces. In domestic discourse and in the court of public opinion in India, they might even proudly proclaim victory in Gujarat through these means, and for showing Muslims their proper place; but in the international arena, and in relatively more educated circles, they seek to deny responsibility for what happened.
In domestic discourse and in the court of public opinion in India, the ruling dispensation might even proudly proclaim victory in Gujarat through these means, and for showing Muslims their proper place; but in the international arena, and in relatively more educated circles, they seek to deny responsibility for what happened.
There are two things citizens of the republic need to analyse and be concerned about. One is the almost-total control over the media landscape that allows a government to operationalise this kind of blatant doublespeak. Second is the rift in the public of this country, where the two constituencies are so divided that this kind of lying can live and grow in the yawning gap between them.
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Q: As someone who has been a champion of judicial reform and greater transparency in the judiciary, how do you see the recent detente between the Judiciary and the Executive?
A: Without doubt, there are deficiencies in the Collegium system and it needs to be reformed. I would go on to say that perhaps the Collegium system is not the best system for selecting judges, but it is certainly better than the government having a say in the selection.
Even without having a formal say in the selection, we can see how the government has been influencing selections by sitting on the recommendations of the Collegium for years at a time, and at other times not even issuing notifications for those names which have been reiterated. Of course, they seek to directly influence members of the Collegium as well. Sometimes they succeed, as there are people in the Collegium who are vocal supporters of the government, like [former judge of the Supreme Court Justice] Arun Mishra, who said that the Prime Minister is a versatile genius, he thinks globally and acts locally.
But if the government is able to get a direct say in the selection of judges, then whatever independence of the judiciary still remains will also be gone. That is what the Supreme Court judgment in the National Judicial Appointment Commission (NJAC) case also said, that by bringing in the Law Minister and putting the secretariat with the law ministry, the government gets a significant say in the selection of judges, which will destroy the independence of the judiciary. They are again trying to open a door and get inside the room of judicial autonomy by browbeating the Supreme Court and the Collegium. This is what the recent comments by the Law Minister and the broadside launched by the Vice President are about.
The other component of this debate is the need for reform. In my view, selection of judges should be done by a full-time body and not by this kind of ex-officio body of sitting judges. Selection of judges is a full-time job — you have to select 100 judges every year to the high courts and the Supreme Court, and you need to consider at least 1,000 people to select those 100 judges. A sitting judge cannot be expected to devote that kind of time to the process. So we should have an NJAC, but it should not have any influence or representation from the government. It has to be a body which is completely independent of the government, because the judiciary needs to be totally independent of the government.
The full-time body should go about the job of selecting judges in a systematic and transparent manner. Systematic means they have to lay down a criteria for selection, and also lay down how they will evaluate the various candidates on that criteria. Transparent means that at least the shortlisted names should be made available to the public, so that people can also provide whatever information they have about those candidates.
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Q: How will such a body come about? Who will be its members?
A: It can be a five-member body which is selected by a Collegium of, let us say, five senior judges of the Supreme Court, one representative of the government, one representative of the Opposition, and then people like the Chairperson of the National Human Rights Commission, the Chief Election Commissioner and the Comptroller and Auditor General. This selection committee may select five full-time members who are given a tenure of at least five years and a full secretariat.
Selection of judges is a full-time job — you have to select 100 judges every year to the high courts and the Supreme Court, and you need to consider at least 1,000 people to select those 100 judges. A sitting judge cannot be expected to devote that kind of time to the process.
The members may be retired judges, as they are probably the best-qualified to select judges, but it could also have prominent representatives from other walks of life, public figures, but no career politicians. Some outstanding citizens or people who have retired from other constitutional and statutory posts could also be members of this commission.
Q: Do you think India’s Constitution and institutions need reform so that we can avert the kind of crisis you have described as existent currently?
A: There should certainly be reform in the Constitution and the way institutions like the judiciary, Election Commission and the media function. There needs to be reform in the functioning of our democracy, in the manner in which elections are conducted, and the use of money power in elections.
I feel that though limits have been placed on the amount of money that candidates can spend on elections, they are not enforced because people routinely flout them and spend 10-20 times the limit without being caught. This is mainly because the use of cash is allowed in elections.
One of the stated aims of demonetisation was the creation of a cashless society. That was an afterthought, and a debatable one, but when it comes to elections, we can certainly have a law that prescribes that candidates and political parties shall be cashless and all transactions will be through banks. That would reduce the chances of people flouting the limit on expenses.
Secondly, we have no limit on expenses by political parties, which should be put in place. Electoral bonds should be removed, as they are a non-transparent way of funding political parties. Limits on corporate funding of political parties should be restored, even enhanced. Foreign funding of political parties should not be allowed, which has been allowed through amendments in the FCRA.
The republic might even consider State funding of elections, by means of the State giving Rs. 100 or so per vote to candidates after every election so that even candidates with meagre financial resources may be able to put together some financial resources for future elections if enough people have voted for them.
There need to be some elements of direct democracy in our system, by way of initiatives and referendums. We need to effectively decentralise power.
We need an awakened and engaged citizenry. Unfortunately, with the kind of media landscape we have, the citizenry is becoming less and less engaged and aware.
We have already talked about some of the reforms in the judiciary and the way judges are appointed. We also need to do away with the ‘Master of Roster’ system by which the Chief Justice exercises an inordinate amount of power and control over the judiciary, which is not good for the system.
We need to have an empowered Media Council to keep in check the consolidation and monopolisation of media. The council can also monitor the abuse of power by the media. We need to have laws which separate commercial corporations from the running of media organisations.
We need to have an independent way of selecting the Election Commissioner, rather than the governments selecting the Election Commissioners all by themselves.
Yes, many reforms are required but, ultimately, it is an informed and engaged citizenry, which is the best check against the collapse of our republic. Therefore, we need an awakened and engaged citizenry. Unfortunately, with the kind of media landscape we have, the citizenry is becoming less and less engaged and aware. So it is a chicken-and-egg situation, because how do you awaken the citizenry when this is the state of your institutions? How do you reform the institutions when this is the state of your citizenry? So we need to work at all levels, and use social media to at least awaken the citizenry while also campaigning for reform in institutions.
