In a democracy, judiciary must constrain an autocratic executive

Amid a brute parliamentary majority, the judiciary in India remains the only hope for restraining an autocratic executive

Supreme Court of India

The separation of powers doctrine is a vital feature of the Indian Constitution. It prevents political absolutism and ensures that no branch, executive, legislature or judiciary, wields more power than others. The founding fathers had debated elaborate checks and balances between the branches to provide India’s fledgling democracy a sound Constitution. It served us well during the early decades due to the wisdom and integrity of serving incumbents.

Yet, howsoever well designed a Constitution, it can be effective only when the principal actors commit to it in letter and spirit. Given our first past the post system, it is possible for a party to win an absolute majority even with a minority of popular votes.

Democracy or tyranny?

Majority in Parliament based on a minority vote breeds a tyranny of the majority. The Bhartiya Janata Party (BJP) regime has done exactly that in the past seven years. It has rammed through legislations in blatant violation of parliamentary rules and voting procedures. It destabilized opposition-ruled state governments through unabashed purchase of legislators and egregiously subverted constitutional watchdogs by appointing ideologically aligned persons.

For the past few years, the judiciary has been ineffective in checking the authoritarian executive due to ideology, allurements or intimidation. The deadly combination of brute majority, brazen violation of democratic norms, misuse of law-enforcement agencies, sycophantic media and an acquiescent judiciary has turned our democracy into an unbridled autocracy.

Emboldened by its stranglehold over all instruments of power, the government has often trifled with the judiciary. Rejecting Collegiums’ recommendations, filing untenable pleas citing executive privilege or refusing to file an affidavit after seeking repeated extensions in the Pegasus case are some examples.

Judiciary only hope 

Of late, however, a refreshing change is discernible. The higher judiciary and even lower courts have questioned the cavalier manner in which authorities and law-enforcement agencies function. They have passed strictures and imposed fines for shoddy investigations.

The Attorney General and Solicitor General, who could earlier get away with absurd arguments in the Supreme Court, now face incisive questioning and sustained follow-up. Courts have passed strictures against Central and State governments for abusing laws using the fig leaf of national security.

Expectedly, the government’s apologists and its propaganda ecosystem have raised shrill voices using clichés like judicial activism, legislating from the bench or judicial overreach. Behind the scenes, government agencies actively hunt for information to dampen the enthusiasm of judges who are beginning to listen to their judicial conscience.

It is a daunting battle since the BJP has never shied from using extreme means to crush dissent. Adept at controlling the narrative through a lapdog media, it employs investigation agencies to force recalcitrant individuals, officials and businesses into submission.

Nonetheless, the judiciary remains the only hope for restraining the autocratic executive. Our Constitution never intended the judiciary to remain meekly submissive when the executive goes virtually rogue and flagrantly violates democratic norms.

Need to check autocracy

The Supreme Court must assert itself.  It must adjudicate the constitutionality of several laws bulldozed through Parliament and rule against the rampant misuse of the sedition law and other legislation. It must act against the government’s defiance in sharing critical information about opaque deals and disallow sealed-cover affidavits.    

Our system is bedeviled with a deep-rooted politician-police-bureaucrat nexus. Despite several commissions on police reforms and apex court directions to implement them, there has been only token action. Ruling parties want to retain their stranglehold over the police to wield power and patronage. The Supreme Court must fix accountability and ensure time-bound implementation.      

Given the extant authoritarianism, the Supreme Court must admit Public Interest Litigation from credible democracy watchdogs against excesses and take suo moto cognizance of suppression of constitutional freedoms. The judiciary must award exemplary punishment to the police, bureaucrats and politicians culpable for such breaches.  

The High Courts must be responsive to the common man. They must act against injustice in lower courts, which are more vulnerable to political interference and allurements.

People are frustrated due to the mismanaged Covid crisis, unemployment and rising prices. Farmers have been protesting against farm laws that favour the oligarchs. Labour, already reeling from joblessness, fears layoffs due to privatization and new labour laws.

Our democracy is facing unprecedented peril since an outburst of pent-up anger is fodder for anarchy and revolution. Violent disturbances invariably attract ham-handed measures, which could spiral into mayhem. The BJP is nonchalantly persisting with policies that increase prices and unemployment. Could the BJP, in relentless pursuit of its agenda, use the turmoil to assume extraordinary powers?

It is time for the judiciary to act and perform its constitutional role of constraining an autocratic executive.   

(The writer, an Indian Army veteran, is Professor of International Business Strategy and Management, Charlotte, North Carolina, US. The views expressed are personal and not necessarily shared by editors of South Asia Monitor)