Two recent decisions by the Supreme Court, declaring the electoral bonds scheme unconstitutional and pronouncing AAP the winner in the mayoral race in Chandigarh, seem to strike a welcome blow on behalf of electoral democracy. They also raise the expectation of some resistance from what had been, at least in relation to executive power, a more or less comatose Supreme Court.
It is a measure of how low the Court had sunk that two straightforward decisions come as something of a relief. It will be heartening if this trend continues, and if other institutions feel similarly empowered to do their constitutional duties. But there is also a danger of premature celebration. Decisions like these may, at best, be a tactical reprieve. They do not portend a pathway to regeneration just yet.
How should one think of these interventions in the context of the larger degradation of institutions? One has to keep two features of political legitimation in mind. The first is that any institution, particularly the Court, has to often balance not antagonising the executive with considerations of its own legitimacy. If its own legitimacy collapses, it poses a threat to the existence of the institution.
Or, in some cases one can put it even more strongly.
The ability of an institution like the Court to legitimise its seal of approval on many of the Executive’s more dubious decisions depends on it acquiring some shallow reservoir of legitimacy elsewhere. It has to give something to keep the game going, and keep us interested enough in the current institutional structure. So even in circumstances where the Courts have a track record of facilitating the Executive’s authoritarian or repressive agenda, it should not come as a surprise that there are decisions that do not favour the government’s positions. Often these decisions will be in areas which actually do not attack the government’s core ideological project, such as Hindutva-related issues or a civil liberties issue, where the government has a serious rather than a peripheral political stake.
The test of standing up might, on this view, be cases like upholding the Places of Worship Act, something the Court has already diluted; or granting a hearing to Umar Khalid, where clearly the state has made its political stakes clear. Taken individually, and on their merit, the two decisions referred to above need to be applauded. But considered from a systemic point of view, they do not yet amount to a refutation of the thesis that the Courts may end up doing the Executive’s legitimising work for it. In fact, they might make it easier.
Second, even a brazen Executive might sometimes benefit from being reminded that in so far as it claims legitimacy based on democracy and the façade of constitutional principles, the façade will need to be maintained. In a way the Chandigarh election case, or arguably the electoral bonds case, are those where even the façade is so blatantly violated that the system cannot claim legitimacy even on its own terms. Or arguably, the reversal of the decision to release the perpetrators in the Bilkis Bano case was about signaling that the lines that maintain the façade of the system have been crossed. One should not deny the significance of these cases in their own terms. But how much of this ends up keeping enough of the system going, and how much of these decisions move the system to genuine accountability, is an open question.
The reason to be a little sceptical that these decisions might signal a systemic regeneration is this. For one thing, the Court’s broad-based acquiescence in the Executive’s agenda and undermining of secularism is still too extensive to be reassuring. But more importantly, the broader political culture is not receiving even these decisions as something that brings deep shame on the ruling party. You would have thought that a week in which an initiative by the government like electoral bonds was declared unconstitutional, or an election officer was blatantly fixing a mayoral poll, would embarrass the BJP. But these actions are not seen as a sign of the moral inadequacy, institutional untrustworthiness or threat to democracy posed by the ruling BJP. They are, at most, considered tactical mistakes, or minor stupidities, of no consequence electorally.
Somehow in a democracy, these democracy-undermining actions are not seen as deal-breakers or signs of corruption. The political culture is no longer able to mobilise a sense of outrage or mobilisation. In fact, it is a mark of a kind of aestheticisation of politics that the videos of the Chandigarh case are seen as a sort of entertainment: What fascinates us about them is their bumbling quality, not the fact that they portend a ruling dispensation potentially unwilling to let go of power by any means. It is not the Court’s fault that there is no serious political outrage or mobilisation on issues of electoral integrity; there is little sense that the ruling party will pay a price.
The Opposition is still too fragmented to politically leverage decisions like this. But this does suggest a kind of normalisation of institutional perfidy, which is only occasionally punctured by an odd good decision or two. The Court’s own consistent delays in not treating constitutional malevolence as being urgent contribute to this sense of normalisation. Even if it occasionally produces a good judgment on behalf of democracy, as it did in the electoral bonds case, it has helped create a culture where a good institutional decision is a surprise, not something we routinely expect.
In the current political atmosphere, the norms of institutional propriety are being breached extensively. There is also, with some rare exceptions, a palpable lack of civic courage, critical thinking and willingness to hold the government to account. It is almost as if each breach of propriety, over-reaching, repression or communalisation not only does not stick to the government; it almost adds to its perverse power. In such a context, any half-correct decision provides a sliver of hope to hang on to. But one swallow does not a summer make.
Perhaps this point of view is too cynical or graceless. For the sake of Indian democracy, I hope this point of view is wrong. But in the current context, we should not fall prey to the comfort of easy victories. The public reception of the judgments must send this signal. While they are welcome, they ought not to merely be an episodic legitimisation of the façade of constitutionalism. They need to be part of a pattern that challenges the consolidation of authoritarianism and communalism wherever it matters.
The writer is contributing editor, The Indian Express
The recent verdicts ought not to merely be an episodic legitimisation of the façade of constitutionalism
16
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23.02.2024
Two recent decisions by the Supreme Court, declaring the electoral bonds scheme unconstitutional and pronouncing AAP the winner in the mayoral race in Chandigarh, seem to strike a welcome blow on behalf of electoral democracy. They also raise the expectation of some resistance from what had been, at least in relation to executive power, a more or less comatose Supreme Court.
It is a measure of how low the Court had sunk that two straightforward decisions come as something of a relief. It will be heartening if this trend continues, and if other institutions feel similarly empowered to do their constitutional duties. But there is also a danger of premature celebration. Decisions like these may, at best, be a tactical reprieve. They do not portend a pathway to regeneration just yet.
How should one think of these interventions in the context of the larger degradation of institutions? One has to keep two features of political legitimation in mind. The first is that any institution, particularly the Court, has to often balance not antagonising the executive with considerations of its own legitimacy. If its own legitimacy collapses, it poses a threat to the existence of the institution.
Or, in some cases one can put it even more strongly.
The ability of an institution like the Court to legitimise its seal of approval on many of the Executive’s more dubious decisions depends on it acquiring some shallow reservoir of legitimacy elsewhere. It has to give something to keep the game going, and keep us interested enough in the current institutional structure. So even in circumstances where the Courts have a track record of facilitating the Executive’s authoritarian or........
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