The Indian Constitution is standing on the precipice. It might be easy to lose sight of this important fact amidst the continuing salience of elections, the complex social and economic churning and the cultural rhythms that mark Indian society. Almost all the major tendencies that presage a constitutional decline are gaining ascendancy — charismatic populism, communal majoritarianism, partisan degradation, institutional extremism and control of civil society. Cumulatively, these forces degrade the core meaning of constitutionalism; that no one should be able to exercise power, especially arbitrary power, in the service of oppression, without being held accountable.
But what makes this crisis worse is that it cannot even be fully named. Many of the symptoms of this crisis have appeared in Indian democracy before, not just during the Emergency, but in the conduct of state power in small and big forms. No political party is entirely immune from the charge of subverting constitutional values. This allows for an easy and complacent whataboutery that takes our mind off the gravity of the current threat.
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The political cleverness and the danger of the current moment comes from four sources. First, the encroachments on the Constitution are now represented as directly emerging from the will of people; the process of electoral legitimation is used to bludgeon all other considerations of individual freedom or checks and balances. Second, the erosion appears to be, in terms of its statistical effects, less significant. This is not quite the age of mass arrests, only a few well-chosen targets. The degradation of some of the fundamental principles of the Constitution is quite compatible with the workings of ordinary law in many areas, and even an odd progressive victory in others. This duality allows for the charade that nothing of significance is happening. Most people do not feel directly threatened by these changes, and hence, do not construe them as deal breakers.
The third is that this erosion uses the inner conflicts of constitutionalism, its silences and anomalies, against the idea of constitutionalism itself. Take, for instance, the tussle between the executive and the judiciary. In our constitutional scheme, no branch of government can unilaterally claim to be either the unique locus of popular sovereignty or the final custodian of the Constitution. The co-trusteeship of all branches of government is necessary to its working. There is some truth to the argument that the judiciary crafted a solution to the question of judges’ appointments that had a very flimsy constitutional basis. But we tolerated it as a pragmatic lesser evil. But that kind of pragmatic logic can also be turned on its head; now pragmatism is being demanded in service of militant nationalism. So instead of finding a good faith, all things considered solution, the anomalies of our constitutional practice are now weaponised to usurp more power. But make no mistake. When the executive now assaults the judiciary or judicial pronouncements, its use of these anomalies is a mere pretext to subvert the underlying moral architecture of the Constitution. The fourth is the use of formal processes. Oppression also has to often take the form of process and law. Look at, for example, the way in which the Enforcement Directorate is deployed against the Opposition, or administrative law against civil society organisations. It is difficult to formally object to inquiries or investigations; they are a part of the rule of law apparatus. But they can be used to subvert the substantive freedom of citizens, or erode checks and balances.
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In light of all this, it is not that difficult to pretend to have an air of constitutional normalcy. It is still too easy for us to overlook every act of constitutional transgression, whether it is banning of a documentary on the Prime Minister or an open challenge to the judiciary, or use of state power against the Opposition, as either at best an anomaly, or something that has been done before, or something that will not impinge on the basic architecture of constitutional government. But this is a complacent delusion.
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This year will be challenging for the constitutional processes. India always had constitutional transgressions and anomalies. But there were always countervailing social and political forces that could push back against the accumulation of arbitrary power. What is dispiriting is how weak these forces still are at the present moment. Second, for all of India’s faults, Indian politicians had a much clearer conception of the nature and purpose of politics. They were not individually paragons of virtue. But Indian democracy survived because at the end of the day most politicians saw their job as a form of social mediation, working with a complex tapestry of Indian society to maintain a democratic modus vivendi. The dominant paradigm of politics now, as unleashed by the BJP (but also being imitated by others) is a form of ruthless bludgeoning in the name of ideology and political power.
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It is also a form of politics that enlists the worst passions of civil society. It uses nationalism to blunt criticism and justify the amassing of power. But what makes it dangerous is that in all its triumphal aggression, it is a nationalism that is fundamentally insecure. As any student of history will tell you, a leadership that is fundamentally insecure always converts criticism into a conspiracy, does not draw the line on a public discourse of hate, militates against public accountability, is not going to be a custodian of constitutional values. The challenge with such a leadership is that, whatever might be their other virtues, as far as constitutional values go, they are a double threat. If they succeed they will subvert the Constitution. If it looks like they are electorally losing, then also one cannot take it for granted that they will relinquish power easily, or not conspire to make the country difficult to govern. The core signs of constitutional degeneration — the erosion of checks and balances, the degradation of individual liberty, rule by purely executive power, and control over civil society — are already here. The only question is whether we will see more interference in the electoral process. The aggression in the government towards other branches of government and civil society is a sign of risks to the constitutional process.
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The phrase constitutional morality was not about principles or rules or even institutions; reasonable people can disagree about these matters. It was rather a call to a certain kind of virtue — recognising reciprocity, comfort with disagreement, moderation, self-restraint, good judgement, and the privileging of reason over identity. These virtues are in short supply. It is hard to see the Constitution surviving the absence of constitutional morality. Happy Republic Day.
The writer is Contributing Editor at The Indian Express
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