(This note has been prepared by Shiwangee Chandrakar and Indra Kumar Lahoti. They are both Managing Editors of the PCLS blog.) On 24 August 2020, the Progressive Constitutional Law Society had a reading session on “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India”, written by Professor Taruanabh Khaitan. PANEL DISCUSSION 1 The paper touches upon the gradual democratic deconsolidation in the country which has been relatively more visible in recent years. Professor Khaitan maps the steps taken by Bhartiya Janta Party that have slowly and then steadily threatened Indian democracy. The first term of the BJP led government between 2014 and 2019 was when the major groundwork for incrementally damaging the accountability-seeking mechanisms was laid down. It is significant to note that these attacks on constitutionalism by BJP were not as direct as the ones during the emergency period, which is to say that the said assaults on democracy were carried out with subtlety and care. A spatial metaphor is used to explain the functioning of the aforementioned accountability-seeking mechanisms. The democracies seek accountability from the executive vertically by demanding electoral accountability to people, horizontally by demanding accountability to the judiciary, opposition and fourth branch institutions, and diagonally by demanding accountability to media, academia and other civil society institutions. This structure of seeking accountability ensures a democratic regime not just for today but for the future as well.
To undermine electoral accountability, BJP has made several attempts since 2014 to change the rules in their favour. BJP and RSS have, for a very long time, tried to increase the proportion of Hindus in relation to Muslims. They aim for a demographic shift which would result in a favourable electoral outcome for BJP. Their other tactic in pursuance of the same goal have been state anti-conversion laws, encouragement of Hindu men to marry Muslim women, and advising Hindu couples to produce more children. The new citizenship laws are so designed that they systematically exclude the Muslim community. Additionally, electoral campaigns by BJP are visibly anti-muslim which tend to attract the masses and consequentially benefit the party. BJP tactically amended the Foreign Contribution (Regulation) Act 2010 retrospectively to benefit their campaign finance by redefining “foreign company” and thus removing the illegality. Along with legalizing foreign funding, they also introduced electoral bonds which ensure anonymity of the donors and highly benefit the party. Another change that BJP has been pushing for is the electoral schedule. Prime Minister Modi has been advocating for simultaneous elections for the Lok Sabha and State Legislative Assemblies. This creates two big problems: firstly, this takes away the power of the legislature to call for a no confidence motion and secondly, the lower ballot elections at state level would be susceptible to influence by the big ticket elections at centre. PANEL DISCUSSION 2 To undermine the horizontal accountability, BJP strategically assaulted the political opposition, judiciary and fourth branch organizations. Their first step was weakening the political opposition. Since BJP secured a decent majority in 2014 and the opposition leader is not a constitutional position, the party appointed Lok Sabha speaker comfortably denied to recognize the leader of opposition stating that congress did not secure enough seats. The major role of the opposition is to keep a check on the government in power and by not even recognizing the opposition, BJP took yet another step towards an authoritarian regime. Additionally, certain appointments procedure to the fourth branch institutions require participation of the leader of opposition. This has given the government unprecedented powers in all such appointments. In liberal democracies, bicameralism plays a huge part in keeping a check on the executive. Since 2014, BJP has highly damaged the veto powers of the Rajya Sabha by labelling significant bills as ‘money bills.’ In 2016, the Aadhar bill was termed as money bill and by doing so, BJP took away the veto power from Rajya Sabha where they did not have a majority. The same tactic was used for multiple bills to exclude the upper house of parliament from scrutinizing them. In 2014, the government tried to weaken the independence of the judiciary by passing an amendment which dealt with appointment procedure to higher judiciary. The apex court in 2015 struck down the same on the grounds of violation of basic structure of the constitution. The government has also restricted on multiple occasions the elevation of nominees who were seen as a threat due to ideological reasons. There have been other allegations of the Modi government with regards to interference in appointment of judges as well. There have been conscious attempts of weakening or capturing the fourth branch institutions wherein the appointments are not by the method of elections. These institutions include an auditor-general, an electoral commission, a human rights watchdog, an anti-corruption ombudsoffice, a chief public prosecutor and so on. PANEL DISCUSSION 3 Prof. Khaitan after discussing the vertical and horizontal accountability now starts analyzing the discursive i.e. diagonal accountability. This is the accountability of the executive (along with other state institutions) to justify its actions in a public discourse with what is called “civil society.” It also includes universities, media, trade unions, pressure groups, campaign groups and Non-Governmental organizations. He discusses about the controversial draft of a new legislation introduced in 2018 which could have overhauled the entire regulatory scheme for higher education replacing University Grant Commission. The bill was taken back after much uproar by students, academicians and civil society members. He further discusses about direction to central universities to “discourage research in irrelevant areas” and focus PhD research on “national priorities” instead. Next he highlights the government use of sedition law against students and academics for mere speeches. Media houses are immensely pressurized and strict actions had been taken against unbending editors. NGOs are raided and harassed including reputed international ones like Amnesty and Greenpeace. He discusses about the BJP-controlled state governments, which retain control of police powers, repeatedly used their powers of search and seizure against several other human rights and media organizations, who had taken a stand against BJP policies and actions. Activists like Sudha Bharadwaj, Anand Teltubde are constantly vilified and named Urban Naxals and Anti-Nationals. CONCLUSION With all the three parameters of accountability i.e. vertical, horizontal and discursive showing the Green signal, he concludes that the BJP led government in the center in the past six years is killing the constitution with thousand cuts. The combined reading of all these efforts makes it very difficult to deny a systemic blueprint to comprehensively secure executive aggrandizement and party-state fusion in India.
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