Invaluable but imperfect pillars of our democracy

In the continuing journey from an imperfect democracy to a near-perfect democracy, institutions have played invaluable roles but they themselves are found wanting at times

Photo by Arvind Yadav/Hindustan Times via Getty Images
Photo by Arvind Yadav/Hindustan Times via Getty Images

Abhishek Manu Singhvi

A principal institutional pillar–Parliament–is the grand inquest of the nation, the largest Commission of Enquiry ever imagined or created, of the people, by the people and for the people.

Since Parliament does not have either the power to strike down laws in the same sense as Indian superior courts can do, nor indeed to make laws in the real suo motu sense (law making being dependent on executive initiation and passage), I would welcome changes imparting greater flexibility to individual MPs or to an aggregation of MPs above a specified threshold, to be able to initiate legislative measures which have a real chance of becoming law. This alone will make the legislative branch represented by Parliament a truly co-equal organ.

Oppressive Whip System

Another area of Parliamentary reform could be to reduce the oppressive whip system and its destructive effect on creativity and private initiative in legislation. Legal amendments can provide that no whip shall operate in respect of normal voting or in respect of initiation of any legislative measures. It should also be constitutionally mandated that mere failure of passage of legislation by the government of the day shall not constitute a vote of no- confidence, unless a specific motion so styled is brought up.

Regarding the virulently increasing epidemic of parliamentary disruption, I would advocate an automatic suspension of allowances per day or per hour lost on account of disruptions combined, additionally, with suspension of named members, if necessary for prolonged periods.

Lastly, the most apposite criterion for electoral disqualification should be the framing of actual charges by a court by application of judicial mind limited to a list of specified offenses, a simple solution awaiting across the board comprehensive implementation for decades.

An overwhelming Lok Sabha majority has become a major threat to parliamentary democracy. Knowing its limitations in the Rajya Sabha, government's deliberate recourse to mischaracterisation of Bills as “money” bills to evade and bypass the Upper House is a clear fraud on power which, I have no doubt, will eventually be held judicially reviewable by courts (and even struck down) despite the finality of the Speaker's certification.

Secondly, the very concept of “tyranny of the unelected”, whether by reference to the Upper House or the judiciary, belies a poor and superficial understanding of the dynamics and true spirit of the Indian Constitution.

Thirdly, technical subterfuges like not recognising “single largest party entity as leader of opposition”, to avoid accountability, are dangerous portents for Parliamentary democracy.

The Indian judiciary

It is the second, perhaps the most remarkable institutional pillar of Indian democracy. The general public continues to repose the maximum faith in it. It is by far the most dynamic judiciary in the world.

The basic structure doctrine is a pure judicial invention but has been adopted by several judiciaries globally and remains India's best insurance against prolonged dictatorship. Public Interest Litigation (PIL)–with its huge diversity of subject matter and immeasurably potent reach –is another peculiarly Indian invention.

The twin evils besetting Indian judiciary are firstly, the scourge of humongous backlogs and delays and secondly, allegations (though frequently exaggerated) of corruption. Both can be tackled effectively with simple and obvious policy solutions applied tenaciously over a sustained period but lack of will and of cohesion between different organs has precluded it. The judicial organ has also expanded the boundaries of judicial review far beyond the framers’ wildest imagination.

The Media

The press–the third institutional pillar–is always the toast of the season in India. Democracy in India appears frequently to be ruled by the press and judiciary. India has the largest, relatively independent and active fourth estate on planet earth with over 400 dailies, 515 TV channels and 650 million peak time viewers of the visual media.

The press sets the agenda, initiates the debate, becomes an active participant and is frequently the investigator, prosecutor and judge. It functions without any effective accountability. There is a wide divergence between the quality and content of both print and visual media.

The highest standards of journalism co-exist with several forms of yellow journalism. The print media exercises relatively greater restraint and caution whereas the multiplicity of visual media and their no holds barred competition for the eyeballs compels them to indulge in less sense and much more sensationalism. The law of defamation in India, in stark contrast to the UK, is no antidote to irresponsible journalism. The process is agonisingly slow and since not even medium term relief is likely, few, if any plaintiff, ventures to invoke this remedy.

The saying that “the real defamation begins after the filing of the complaint" rings true and is a major deterrent. Statutory institutions like the Press Council of India are effete, cosmetic, ineffective and frequently incestuous. For a long time, the fraud and tyranny of the Television Rating Point (TRP) has not been tamed.

Internal threats

The most potent threats to free speech are internal not external. The first is our collective compulsion to conform, whereby all stakeholders--judges, Ministers, MPs, MLAs, bureaucrats, prosecutors, policemen et al-- feel compelled to act and play to the gallery, as the press may have them speak, saying the "proper" thing but not necessarily the right thing.

The second is the clear climate of fear and retribution under which the press, in many segments, has become a lapdog or poodle of the establishment. The third is the exponentially growing ownership-political-industrialist-press conflicts of interest, especially in visual media ownership structures, which renders press freedom selective, opportunistic and frequently farcical. Last but not the least, is the growing breed of so called "political journalists and channel owners", so fiercely aligned to a political party and so brazenly dependent on financial favors therefrom, that it is treacherous to think of them as journalists at all.

The Election Commission

The Election Commission of India (ECI), the Comptroller and Accountant General (CAG) and the Indian armed forces, constitute three other fundamental institutional pillars of Indian democracy, too vast to be analysed here. Despite aberrations, they have served India far beyond the grandest conception of their creators. For example, the Army’s consistently hands-off approach, apolitical image, anonymity and complete professionalism has contributed immensely to the strengthening of the roots of democracy in India.

All political parties must prevent politicisation of these institutions, India’s pride and the world's envy. All have contributed to avoidable supersessions of top generals, post retirement political appointments of ex CAGs and Election Commissioners and dragging them unnecessarily into the political discourse. At least for the future, conventions eschewing such aberrations must be developed.

In conclusion, India’s amazing diversity is its best insurance against degeneration of democracy or institutionalization of dictatorship. To that must necessarily be added the intrinsic nature of India and of Indians viz. absorbent and highly argumentative

Democracy in India has many miles to walk and many promises to keep. If it cannot be fairly castigated as an imperfect democracy, it is certainly also nowhere near being a perfect or near perfect democracy. It is difficult to quantitatively calibrate whether we have covered half or more than 75 per cent of the journey from imperfection to perfection.

We have not achieved, for example, the more capacious concept of democracy beyond the narrower view of seeing democracy exclusively in terms of public balloting and not as “the exercise of public reason” i.e. the larger concept of providing opportunities for citizens to participate in political discussion and, more importantly, to informed public choices in methods that transcend the ballot box.

Personally, I have no doubt, that we are well past the midway mark in the journey and that we will get there in the fairly proximate future. But the story has never been only about the destination or the result. It has been, as much, if not more, about the journey and that has undoubtedly been exciting and unusual.

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