The Constitution of India did not just create a political unit – it also endowed the country with parliamentary democracy. To B.R. Ambedkar, its spirit was “that every government shall be on the anvil, both in its daily affairs and also at the end of a certain period when the voters and the electorate will be given an opportunity to assess the work done by the government.”
He was clear that “we do not want to install by any means whatsoever a perpetual dictatorship of any particular body of people”.
Every article of this profound document resonates with democratic principles. To protect and preserve democracy, the framers provided for elected governments at intervals of five years at the Union level and in states. Parliament and state legislatures were created to constantly review the government’s work through motions and debates.
To ensure a free, fair, honest and transparent election process, the Election Commission of India was created. The president and governors were to be formal heads of governments, to act only on the advice of the council of ministers. Basic human values were given the highest constitutional status as fundamental rights.
To check parliamentary and executive excess, the constitution provided for an independent judiciary. The Supreme Court and high courts were tasked with the duty to protect citizens’ rights.
The Comptroller and Auditor General of India was to oversee the use of public funds so that they were not misused.
Even the attorney general of India and advocate generals for states were recognised to ensure proper advice was given to elected governments, hoping for adherence to constitutional morality and values.
Yet, Indira Gandhi imposed an emergency in 1975, virtually suspending the constitution and its guarantees.
The Supreme Court looked away. Several opposition leaders were jailed. Among them were Atal Bihari Vajpayee, L.K. Advani and Arun Jaitley.
Of these, Vajpayee had concerns about Narendra Modi’s adherence to ‘raj dharma’ as chief minister, but the latter two were mentors of Modi at some point before he became prime minister. Every year on June 25, he reminds us of about the horrific time of the Emergency.
Fortunately, it was lifted in 1977 and democracy was restored. But those two years remain in our psyche, after almost 50 years.
India today is ostensibly a democracy; in practice, it is close to being an autocracy. The opposition is being systematically targeted by “independent” agencies like the Central Bureau of Investigation, Enforcement Directorate (ED) and Income Tax Department.
The media often plays a supportive role and portrays opposition leaders as most corrupt. No one supports corruption. But a selective and arbitrary crusade is dangerous.
Targeting elected chief ministers and other leaders on the eve of the Lok Sabha elections is the death knell for electoral democracy. These same agencies have so far refused to stir themselves to action despite revelations about a possible nexus between the Bharatiya Janata Party and big business – through electoral bonds. There are prima facie concerns about a quid pro quo not just in allocating public resources and government contracts but, sadly, in alleged extortion before and immediately after raids carried out by them.
The Supreme Court defined the scope of Article 32 in Daryao vs State of UP (1961), stating that:
“There can be no doubt that the fundamental right guaranteed by Article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country.”
The constitution bench described them as the “very essence of the democratic way of life adopted by the constitution”. It promised that “it is the privilege and the duty of this court to uphold those rights”.
Yet, the court, bound by its precedent, fails to exercise privilege and perform its declared duty to entertain petitions, as seen in the recent cases against opposition leaders whom the government is determined to keep behind bars.
However, in the case of Trinamool Congress leader Abhishek Banerjee (about whom there are rumours of a backdoor understanding), the court accepted his plea that the ED not summon him till after elections were over.
And in the case of a BJP functionary from Gujarat who sought relief as he had been externed from his district, the court recently issued notice as he claimed his right to work in the election was restricted.
The Election Commission has failed to live up to the constitutional standards expected of it.
The recent appointments of two election commissioners shocks constitutional conscience. Do they possess the required qualification of “knowledge and experience in management and conduct of election” as per section 5 of the amending Act of 2023? Were they appointed after proper search by the search committee and application of mind by the selection committee?
While hearing a writ against the appointment, the Supreme Court wondered how, in just two hours, the names of 200 candidates were vetted. Was the leader of the opposition given sufficient time to review the names?
Yet, when the Chief Justice of India was removed from the selection panel by the 2023 law, the Supreme Court did not intervene.
What sanctity will there be to the forthcoming elections in this backdrop?
The court must take cognisance of the gravity of the situation: Elections must be conducted by fiercely independent commissioners. During the Constituent Assembly debates, it was even suggested that the Election Commission must have the confidence of all political parties, including the opposition, and therefore these appointments must be approved by a “two-thirds majority in both the Houses”.
To Ambedkar, it was fundamental that the “election machinery should be outside the control of the executive government”.
Also read: Are India’s Elections Free and Fair?
Other constitutional institutions too have not lived up to expectations. For example, the Comptroller and Auditor General seems oblivious to any possible misuse of funds by the government. The Lokpal too has been a silent spectator.
The media, at least most parts of it, clearly acts as a mouthpiece of the ruling party, failing to project the government’s acts of commission and omission.
Ambedkar was prophetic when he said as early as November 25, 1949, that:
“There is great danger of things going wrong. Times are fast changing. People including our own are being moved by new ideologies. They are getting tired of government by the people. They are prepared to have governments for the people and are indifferent whether it is government of the people and by the people.”
How true his words sound today. He, therefore, called upon us to “resolve not to be tardy in the recognition of the evils that lie across our path and which induce people to prefer government for the people to government by the people”.
We must not “be weak in our initiative to remove them,” he said.
Let us understand before it is too late that we just need to open our eyes.
Dushyant Dave is a Senior Advocate practicing before the Supreme Court of India.
