America may have her problems, but the recent attempts by former president Donald Trump (including the Capitol Hill riot) did go towards showing the strength and independence of its state institutions. The Supreme Court, and other courts, including judges appointed by the Republicans, refused to entertain Trump’s conspiracy theories.
The executive branch of government ensured an orderly transition. The legislature, most exposed to the consequences of public opinion, turned out to be the most unreliable of the three branches of government, but even the legislature showed that a large number of the elected Republicans went against their disturbingly frenzied president.
In short, American institutions preferred to get back to business as usual rather than pursue a partisan pipedream. Sitting in India, this seems a worthy standard to aspire to.
Erosion of India’s institutional credibility
Governments come and go in a democracy. What will remain are the institutions. Our present government does not seem to go by the constitution or morality. It is a government which revels in allegations of horse-trading, of religious bias, generally of anything that arises from the philosophy of ‘might makes right’. This also makes it a delightfully ‘honest’ government, it is hardly hypocritical, and that too in a system where hypocrisy had become a by-word for political acumen.
The opposition, which consists of almost every other major party apart from the BJP, has this challenge to meet. The BJP can do or say whatever is expedient for the purpose of winning elections. It is famously not concerned with the sanctity of institutions or the future of the nation state.
In its zeal to pursue the Hindu Rashtra, it would happily consign the constitutional system to the sacred fire. It would be easier to fight the BJP using its own tactics, an amoral surrender to the exigencies of electoral politics, though at great, perhaps fatal, cost to the constitutional system. Defending the constitutional system while aiming for electoral success is a much trickier task.
Democracies, it is trite to say, are defined by their institutions, which owe their loyalty to a constitution, whether written or unwritten. Elected leaders, without any constitutional restrictions upon them, would only be temporary autocrats.
What happens when popular wisdom starts regarding everybody and everything as corrupt? If a constitutional system rests on a foundation of constitutional morality, can such a system survive when ideas of morality no longer hold currency? If the institutions are corrupt, why should the citizen not be?
India’s institutions can be said to be faltering at best. Parliament passes crucial laws through a ‘voice vote’, not to mention that parliament and state legislatures are routinely bypassed through the ordinance route, while governors hold early morning swearing-ins to help their old political party. The Supreme Court prefers to adjourn cases of grave constitutional importance.
The less said about the executive the better. Much has been said and written about these institutions and where they have failed, or have at least been perceived to have failed. This is a very dangerous situation for any nation state.
Way to resurrect the faltering system
The concern, regarding the current state of our institutions, is the fast evaporating faith of the average person in them. Depending on one’s political proclivities, the institutions are seen as biased, corrupt or even as irrelevant. Both sides are seen as praising an institution one day and castigating it the next, depending on the stand taken by that institution on that day.
For instance, for the opposition, the chief justice when he speaks against hate speech is praised to the high heavens, and is castigated when he appoints a farm law committee which seems rather one-sided in its view of the farm laws.
For supporters of the ruling dispensation, the reaction is equal and opposite. The point here is not whether either is correct, but the issue is whether an institution qua an institution will have any credibility left.
If we need these institutions to survive, somebody will have to fight for them. A bipartisan political project to strengthen the state’s institutions is not possible under the current regime.
Civil society, insofar as it exists on social media, is more interested in daily potshots than in any constructive engagement on the future of the state. The offline civil society is more prepared to engage with these issues but has little influence to bring to bear on anything.
There needs to be a larger engagement with institutional health. An institution will operate as per its internal logic. Expecting an institution to deliver an emotionally acceptable result is a partisan approach that is simply not working. This is not to say that criticism must cease. Far from it, institutions have to be held to the standard that they are supposed to adhere to. These standards will be legal, ethical and professional, and yes, sometimes even political.
To expect institutions to behave as per an external political standard has brought us to the mess that we are in. An external political standard is one where the institution is supposed to have differential standards dependent on who is dealing with that institution.
Expecting Kunal Gurjar and Shahrukh Pathan (both accused of firing from guns, one caught on video on the Shaheen bagh protesters and the other allegedly at a policeman) to be treated the same is a standard that the courts ought to be held to.
It is distressing that there are many who expect the courts to go easier on one or the other. The fact that the courts have been easier on Gurjar is a problem, a sign that the institution is in trouble. The solution is not to campaign for amnesty for all pointing guns at protesters or the police, but the solution is to seek equal punishment under the law. This is a simplistic example, but a relevant one.
The slide, in our constitutional system, has to be arrested. In functional democracies, this function is performed by the government. In the topsy turvy position which India finds herself in, this is a function to be performed by the opposition, by civil society and the citizenry.
On a day when a 21-year-old has been sent to five days police custody for editing an online toolkit, such exhortations might even seem naïve. It is a hard ask, some might even feel it is an unfair ask. However, this is the only way to ensure the continued survival and progression of the Republic of India. The people have to be more moral than their government.
Sarim Naved is a Delhi-based advocate.