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December 23, 2019

Governance & Politics

Protecting a People's Democracy

By Nitin Desai


The past week has seen the rapid spread of public protests against the NRC and the CAA. Besides the immediate cause, these protests also reflect a growing sense that a ruling party that won 37% of the popular vote is ramming through its agenda without consulting with the opposition and state governments or taking account of the possible views of the 63% of the voters who did not support them.  There is a fear that we are drifting towards a regime where there may be little protection against executive over reach as crucial constitutional positions and autonomous institutions are no longer structurally isolated from political interference. The sovereignty of people is losing ground to the executive power of the ruling party.

Nearly five hundred years ago a powerful and pioneering text came out outlining for the first time the principles of sovereignty that rested on peoples consent. It is  titled “Vindiciae Contra Tyrannos” or A Defense of Liberty Against Tyrants”.  There is much in this ancient text that resonates even today not just in India but in other democracies.

With regard to the duty to obey rulers the text says: “Accordingly, rulers need to know how far they are permitted to extend their authority over their subjects, and their subjects need to know in what ways they are to obey, lest should the one encroach on that jurisdiction, which no way belongs to them, and the others obey him which commands further than he ought.”

From the present perspective what is very relevant is the distinction that the Vindiciae draws between public officials who are servants of the ruler and those who should consider themselves servants of the people. Hence the Vindiciae states:

“The responsibility of the one is proper relation to the care of the king's person; that of the other, to save the commonwealth from damage; the first ought to serve and assist the king, just as all domestic servants are obligated to their masters; the other to preserve the rights and privileges of the people, and to hinder the ruler so that he neither omit the things that are advantageous to the state, nor commit anything that may cause damage to the public.”

This distinction between the two classes of public officials is not implementable unless the procedures for their appointment are also a differentiated so that the executive does not play a decisive role in choosing the public officials who have to protect the constitution and people’s rights. This matters most for the integrity of the election process, impartiality and objectivity in the formation of post-election governments and in the independence of the judiciary and the police from political interference.

The first and most important set of public officials from this perspective of protecting people’s rights are the Governors of the States.  At present they are appointed by the ruling entity at the centre with little regard for any factor other than political loyalty. As of now all but three state governors are party loyalists. The Sarkaria Commission made several recommendations to improve matters including that the Governors should be an eminent person from outside the State, that he must not have participated in active politics at least for some time before his appointment and not be too intimately connected with the local politics of the State. Most importantly it argued that the Governor should be appointed in consultation with the Chief Minister of the State, Vice-President of India and the Speaker of the Lok Sabha. Except for the recommendation that he be from outside the State none of the others have been implemented by this or any previous government despite exhortations from the Supreme Court.  This has to change if federalism is to be protected and some semblance of propriety is to be preserved in post-election government formation.

In a people's democracy maintaining the credibility of the election process is vital for political stability.  The Election Commissioners are appointed by the ruling executive without any consultation.  We have been fortunate that a few outstanding Election Commissioners have risen to the challenge and helped to build up a credible institution.  But lately there have been growing concerns about their impartiality and the time has come for a more consultative and transparent process of appointment. In June 2012, Shri Lal Krishna Advani, suggested that appointment of Chief Election Commissioner should be made by a bipartisan collegium consisting of the Prime Minister, the Chief Justice, the Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha. But it was not accepted then and will not be revived now by the ruling party. But some such a procedure is now even more necessary to maintain faith in an electoral process in the midst of deep ideological conflicts.

The independence of the higher judiciary is crucial for protecting peoples rights and insuring constitutional propriety. Following a 1993 judgement the procedure for the appointment of Supreme Court and High Court judges shifted the power of choice from the executive to the Supreme Court and High Court collegiums. There have been demands for greater transparency to which the Court has responded.  But the real guarantee of independence has to come from a judicial culture that stresses the crucial role of judges in ensuring constitutional propriety and protecting people’s rights.

The police are part of the executive machinery of the state.  But their independence from executive pressure needs to be ensured to protect the rule of law and people’s rights. In 2006 the Supreme Court delivered a major judgement on police reform that required, among other things, the establishment of State Security Commissions made up of both the responsible minister, the leader of the opposition, other elected representatives, experts, and credible members of civil society, a National Security Commission, a Police Establishment Board and a Police Complaints Authority, all designed to ensure merit and transparency in higher level police appointments. Regrettably the actual pace of implementation of these reforms has been tardy to say the least.

All governments so far have resisted changes in the appointment procedures of Governors, Election Commissioners and higher police personnel. This is not going to be any different now and maybe even more difficult with strong ideological divides amongst political parties. The only answer lies in effective action by Supreme Court using its powers of complete justice under article 142 to set out appointment procedures for these  functionaries that will ensure selection based on recognised merit and transparency, neutrality, objectivity and impartiality in then process of selection.

Till then  one can only exhort those who occupy these key positions to remember that they are not answerable to those who have appointed them but are accountable to the people of the country for protecting constitutional propriety and the rights of the people as a whole.

Let me conclude then with one final admonition from the Vindiciae: “It is therefore permitted the officers of a kingdom, either all, or some good number of them, to suppress a tyrant; and it is not only lawful for them to do it, but their duty expressly requires it; and, if they do it not, they can by no excuse colour their baseness.”

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