New Delhi: Authoritarianism is most often kept in check by constitutional and statutory institutions in a democracy, seldom by individuals, and public opinion is usually always tardy in challenging it. The case with Indira Gandhi’s Emergency amply demonstrates this. Is India in a position to resist Narendra Modi’s authoritarianism if it comes to that? Clear answers are not available.

Democratic institutions, for one, are not what they were. The judiciary is the single most important bulwark against authoritarianism. It failed the people during the Emergency when it bowed to Mrs Gandhi’s diktat for a “committed judiciary”. Certain judges stood up to her and paid the price; but the judicial institution largely bent to her will. To hope and expect the judiciary to have been steeled and strengthened by the dark past of the Emergency is to be excessively optimistic and not a little naive. The real test of judicial independence comes in the face of the rise of a strong and charismatic leader like Narendra Modi. Judicial independence is being put to the doughtiest test today and no true democrat would wish anything but the victory of the judiciary.

In the United States, the bipartisanship of the Congress can be relied upon to stop in the tracks an imperial President. The issue of Watergate and Richard Nixon is too well-known to bear repetition. Similar bipartisanship will see President Donald Trump impeached if it so transpires. Despite the obvious political competition and undimmed rivalry between the Republican and Democratic parties, they will not stand for a President compromising national interest or working to the detriment of American democracy. Watergate then and Russia-gate now share the same quality.

On the other hand, the Indian Parliament has rarely shown a proclivity to bipartisanship on concerns of an imperial or authoritarian Prime Minister. The majority enjoyed by the ruling party ensures that dissenting political voices are silenced. The Union cabinet is no help either, reduced to an assembly of yes-men and yes-women. Apparently, Narendra Modi’s cabinet meetings sometimes last no longer than fifteen minutes, when they have not infrequently in regimes of the past consumed the better part of a day. His cabinet meetings are being likened to the gatherings of the Congress Working Committee, where Queen Sonia and Prince Rahul have the speaking roles, while the rest appear as extras of a silent film. No. In the Indian condition at least, the legislature and the executive do not have the will, inclination or power to institute a check on an imperial or authoritarian Prime Minister. The judiciary, even though paradoxically unelected, and scarcely perfect, has nevertheless come to occupy the position of the last bastion of democracy. It is when the judiciary crumbled that it became possible for Indira Gandhi to impose Emergency.

The twin pillars of the executive and the legislature have often united to cut at the foundation of judicial independence. Without a great deal of effort, this succeeded during the Emergency, faced ignominy and encountered repair for a brief hiatus, and has since been renewed, with all governments guilty of devising schemes to contain judicial power. The thorn in the side of the executive is the Supreme Court judgement that safeguards the “basic structure of the Constitution” and arrogates to itself the power to be the sole arbiter and determinant of this aspect. If any legislation or policy decision is determined by the Supreme Court to undermine the basic structure, it can be annulled. This implicitly limits the sanction of the legislature to make laws, and it protects the judiciary from legislative and executive encroachments of its domain. From time to time, strident voices are raised to make concerted and strenuous legislative and executive efforts to scrap the “basic structure” concept. Since the calls are undisguisedly immoral and manifestly antidemocratic, they have found little purchase.

If the country had firm and indestructible checks and balances like the United States, the dependence on the judiciary to preserve democracy would not have been quite as desperate and excessive as now. Because the judiciary is trusted vastly more that the executive or the legislature, its non-elected status does not detract from the preservation of the democratic character of the republic. At the very beginning of the term of the Narendra Modi government, Parliament unanimously bid an executive role in the appointment of judges to the superior courts and to scrap the existing collegium system. The Supreme Court struck down the legislation since it undermined the basic structure of the Constitution. The Congress party, despite its shoddy leadership of the Emergency, swiftly realized the gravity and import of the Supreme Court action. It avowed against seeking any further executive role in higher judicial appointments. The Narendra Modi government, on the other hand, is determined to have a say in the appointment of judges. If the government succeeds in pressuring the Supreme Court, democracy would be imperilled.

To be continued....

Read “Rating the PM - 1,” “2,” “3,” “4,” “5,” and “6” here , here, here, here, here and here.

Editor’s Note: When the media flashed pictures of a dead young mother and her wailing suckling child near a railway track in Damoh in Madhya Pradesh, another image promptly juxtaposed with this tragedy in this writer’s mind. This was of the Prime Minister’s recent portrait done by a celebrity Bombay painter. In the portrait, Narendra Modi wears a calm expression on his face and a broach with the national emblem pinned to his jacket gilded in 24-karat gold. The child in Madhya Pradesh who was interrupted in his mother’s breast-feeding by her death had remnants of a little biscuit as her last gift. When he was moved to hospital, the staff refused admission till a stranger paid the fee of Rs 10. Pictures and portraits do tell tales.