In the globalized and multicultural world of today, democracy has become the most widely accepted form of national government by most of the international community of nations. This emphasis on democracy, as the only suitable form of government, is enforced not only by formal intergovernmental organizations but also by other less-formal or informal associations. Watchdog organizations aim to utilize the collective historical knowledge of the tumultuous World Wars and other experiences of violence and conflict to examine the current happenings in a State, and discern the various trends, if any, that may lead to the dismantling of democracy. The observations of such organizations are important because they emphasize caution and political awareness, as more often than not, such harassments of democracy are insidious and innocuous, and action is rarely taken before it is too late. Freedom House in the United States of America is one such non-governmental organization, which also conducts research and engages in advocacy of democracy, human rights and political freedom. Its fundamental founding principle is that freedom only survives in democratic states where the governmental apparatus upholds high standards of accountability and responsiveness towards all sections of the population. Among its other pioneering programs and advocacies, their flagship publication, the ‘Freedom in the World’ Report, provides a perceptive comparative record and assessment of how governments of 195 countries and 15 territories are performing their functions of securing and protecting political rights and civil liberties. The Report rates these countries on indices of political rights (broadly, electoral process, political pluralism, and participation and functioning of government) guaranteed to the citizens and civil liberties (including freedom of expression and belief, associational and organizational rights, rule of law, and personal autonomy and individual rights) protected by the government. The States are awarded 4 points each for the 10 political rights and 15 civil liberties and are rated on an overall status scale of Free, Partly Free, or Not Free.
In 2021, India fell from the status of Free (with a relatively low score of 71/100 in 2020) to that of Partly Free (with a 67/100), and the Report clarified that this score is independent of the conditions in Kashmir, given the recent actions of the Centre in the region. India scored especially low on the indicators of (i) political pluralism and participation (specifically the guarantee of full political rights to religious, social and sexual minorities, and the freedom of the electoral space from domination by extra-political outside forces); (ii) functioning of government (specifically the upholding of official safeguards against widespread corruption, and standards of transparency and openness); and most worryingly, (iii) civil liberties (specifically, the presence of a free and independent media, freedom of religion and faith, rational and secular system of education, freedom of assembly and non-governmental organizations, personal autonomy, individual rights of movement, ownership of property, social freedoms, and equality of opportunity). The Report also scored India low on the presence of a (i) strong Rule of Law with an independent judiciary, (ii) strong due process in criminal and civil cases, (iii) protection from the use of physical force by political functionaries, and (iv) equal treatment of all segments of the population before the law. As is evident from these observations, the Report reiterated the concerns of several academics and observers about the misuses of power by the present Ruling Dispensation in India. It implied that though India still preserves the constitutional guarantee of a strong democracy, the government in power has injured every indicator of it. Comprehending this becomes a troubling task, as every indicator of freedom in the Report is enshrined as the basic Fundamental Rights of all citizens in the Constitution. Hence, when the country scores low on these indicators, it is obvious that there is a gross and licentious violation of these entitlements on a daily basis. India’s heritage of being a strong and stable democracy with the history of a momentous struggle for independence from colonial rule has been wounded, and its classification as a Partly Free nation serves as a sign for the worst to come. As an elucidatory example, other Partly Free countries include Armenia, Bangladesh, Bosnia and Herzegovina, Burkina Faso and Columbia; none of which are gold standards of democracy and freedom.
Spurred by this disturbing realization, this article will attempt to study India’s increasing vulnerability to authoritarianism by first summarizing the basic minimum conditions for a stable and bonafide democracy and then highlighting the protection of those conditions under the Indian Constitution. Finally, it will provide instances to delineate how each of those conditions has been attacked by the government, thus elucidating the present condition of Indian democracy.
Conditions for a Strong, Stable and Legitimate Democracy
As demonstrated by the Freedom House Report, and exhibited by a long legacy of international historical experience, there are certain basic minimum conditions for a strong, stable and legitimate democracy. These conditions are enshrined in the Constitution, embedded in its basic structure, and protected and upheld by years of judicial precedent. It is, in fact, these very conditions had allowed India as a fledgling independent nation to justifiably hold the credentials of democracy in the international forum, including the United Nations and its affiliated organizations.
The first condition is that the people own the nation. The executive, the legislature and the judiciary are the trustees of democracy, and of the power that has been bestowed on them by the people. They are only powerful insofar as they fall secondary to the interests of the public. The ethos of a government by, for, and of the people is enshrined not only in the various fundamental rights and constitutional guarantees of civil, political and economic liberties but also and most importantly, in the very Preamble. This foundational introduction to the Constitution elucidates the most cherished beliefs of the founders of the newly independent India and begins succinctly with the phrase, “WE, THE PEOPLE OF INDIA…”. At the outset, it is evident that the Constitution locates the power and authority of governing the nation in the people. It is the people who have the authority to “solemnly resolve to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”, and they are the ones, therefore, who have the power to “HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”. It is important to understand here that the Constitution, like all contracts arising from the tradition of social contract theories, is a rulebook for the exercise of democracy. It consists of rules formulated on the principle of mutual consent among equal and free individuals, who vest their collective authority in a document to govern themselves.
As people are the repositories of democratic power, the second condition is that individuals are guaranteed certain inalienable rights as entitlements of personhood and citizenship. The purpose of these rights is to protect individuals from excesses of power by the State and provide the State with blueprints on how to treat the public with dignity and fairness. The Constitution encapsulates these rights in Part III (Articles 14 to 32), and terms them Fundamental Rights because these rights are integral to the intellectual, moral, and spiritual development of all citizens. These are the crux of the Constitution, that are central to the idea that people are the legitimate authority, apply equally to all citizens, and enjoy the widest range of protections under the law.
The Fundamental Rights include the Right to Equality (Articles 14-18) before the law and of opportunity, prohibition of discrimination based on caste, sex, religion, etc., and of untouchability; the Right to Freedom (Articles 19-22) of life (and privacy), speech and expression, assembly, association, movement, residence, and profession or occupation; the Right against Exploitation (Articles 23-23) prohibiting all forms of child labour, begar (forced labour) and human trafficking; the Right to Freedom of Religion (Articles 25-28) including freedom of conscience, to profess, practice, and propagate any religion, and to manage religious affairs; and Cultural and Educational Rights (Articles 29-30) that protect the right of any segment of the citizenry to conserve their culture, language or script, and of minorities to establish their own educational institutions. As is evident not only from the Freedom House Report but also from the Constitutions of other countries and intergovernmental bodies such as the United Nations (Universal Declaration of Human Rights) and the European Union (European Convention on Human Rights), the protection of these rights is central to any country’s democratic credentials. These rights are important not only because they provide the standards and limits of governmental authority but also because their violation is punishable under the Indian Penal Code and the Code of Criminal Procedure, as well as in the Constitution itself. Article 32, which deals with the Right to Constitutional Remedies, is a Fundamental Right that enforces all other Fundamental Rights and empowers the citizen to move directly to the High Court and Supreme Court in case of violation or denial, through the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
The third condition is crucial in maintaining the federal character of the Constitution. It ensures that there is a strict and formal separation of powers between the Executive, Legislature and Judiciary so that no organ of authority is able to become all-powerful. Though the first two organs are intrinsically linked given that the Prime Minister is the leader of the Executive as well as of the majority party in the Legislature, the Constitution provides a system of checks and balances in the form of mutual exclusiveness, right of a no-confidence motion, and judicial review to ensure that each organ keeps the other two in check. The separation of powers is a historical bastion of democracy and often the last barrier between democracy and authoritarianism because it delineates the precise scope of exercise of authority and defines the consequences of exceeding them. They are protected in the Constitution as part of its basic structure under Article 50 (obligation to separate the Judiciary from the Executive), Articles 121, 122 and 136 (prohibition from discussing the conduct of sitting High Court and Supreme Court judges in the Legislature and immunity of President and Governor from the same), and the fact that judges are appointed by the Executive on the recommendation of the Chief Justice.
The fourth condition is that the political executive is not infallible and only holds legitimate authority at the pleasure of the public. It ensures the conduct of free and fair elections after every five years at every level of the government. Concomitantly, it also ensures democracy against the consolidation of power in the hands of an elite group of individuals indefinitely. It also allows the public to express their discontent with the government and promotes the collaboration of different ideologies in the interest of the public. This is promulgated under Part XV (Articles 324-329) of the Constitution that provides the conditions for the superintendence, direction and conduct of elections to the Legislature of every state, and for ensuring that elections are conducted freely, fairly and equitably. It guarantees that individuals can choose and remove their representatives from power.
The fifth condition, which binds all the others together, is that there should be an enduring, equitable and just rule of law embedded in a system of law and order under which all individuals can pursue their interests and goals peacefully and purposefully. The rule of law is central to any stable democratic order, even internationally, a democracy is only strong if the Constitution binds every individual and functionary. The principles of equality ensure this before the law, the predominance of the legal spirit and the supremacy of law, and ensures that the arbitrator of true authority is formal-legal and independent from individual charisma. Article 13 (ensuring that all laws made by the Legislature must be in conformity to the Constitution), Article 14 and Article 21 (ensuring that no individual may be deprived of their life and liberty except under procedures established by law) form the basic legal foundations of rule of law in the Constitution.
The current government has violated each of these conditions and has increasingly rendered India’s democratic credentials suspect. Most contemporary scholars would agree that the locus of authority has shifted from ‘we, the people’ to certain individuals in the political executive who has, through consent or coercion, built a personality cult around themselves. Not only has this dislocated the basis of authority from legal-rational to a more unstable charismatic one, but it has also created uncomfortable links between deities and human leaders in powerful and exclusionary ways, which can be evidenced by incidences of the leadership being worshipped by the fanatical party workers. Such links are also problematic in a country as deeply religious as India because it is by nature, exclusionary of political opponents. When this is confined to the law, it leads to healthy debate and deliberation. However, when it forms a nexus with the violently defended sacred realm, it leads to incidences of mob violence and vigilantism against dissenters, such as the June 27, 2017 lynching of a mentally disabled woman in West Bengal and the June 2018 murder of two young men in Assam over unconfirmed and false ties to a child trafficking ring. It is important to understand here that when a mob, tacitly supported by the Centre, attacks a political or social minority, it uses other arbitrary causes as legitimizing reasons and captures the power from ‘we, the people’ to we, the few. The grossest violations have been of the second condition, as fundamental rights of minorities and objectors have been routinely infringed by the political executive and the law- enforcement agencies, in complete impunity from constitutional remedies. The freedom of speech and expression comes with certain restrictions to protect the interests of the larger public. However, State authorities have repetitively and disproportionately utilized the archaic Section 124A of the Indian Penal Code dealing with sedition to silence all critics of the government. In fact, the Crime Records Bureau’s “Crime in India 2019” Report displays a sharp, almost 165℅ rise in sedition cases lodged against individuals for “critical” or “derogatory” remarks against particular leaders in the country. These cases include those persecuted against the Wire’s Siddharth Varadarajan for a tweet critiquing Adityanath disavowal of Covid restrictions (April 11, 2020), comedian Munawar Faruqui for alleged jokes against Amit Shah and Hindu deities (May 2020), and most recently, that of student Disha Ravi for sharing Greta Thunberg’s protest toolkit amidst the ongoing farmer’s protests (February 2021). This shows a frightening pan-India trend towards silencing the free media, students and any other critics of the government, through terming them ‘anti- national’ and subjecting them to wide attacks on their fundamental rights of free expression and of life and liberty. It does not begin to encapsulate all those who are regularly silenced out of fear of vigilante violence and demonstrates some of the deepest attacks on Indian democracy. Indeed, the arrests and detentions that have occurred through 2020 under the Citizenship Amendment Act that have included scholars, activists and individuals from disadvantaged sections of society, and the draconian Detention Camps that have been constructed in Assam are a clear example of the violation of Article 21, without any recourse to the protection of habeas corpus. India is religiously heterogeneous, and Muslims constitute a religious minority. A group of fringe elements have perpetuated a fictional narrative of Muslims threatening Hindus, which has convinced a large section of the ill-educated and misinformed population, who have then engaged in horrific vigilantism that has attacked Muslims for a variety of reasons including their food habits, their occupation, and their interaction with Hindus. These have occurred through murders from cow vigilantism, destruction of Muslim shops and enterprises, and through Anti-Romeo squads harassing and punishing inter-caste and inter-religious couples on the imaginary conspiracies of Love Jihad. Secularism and religious freedom are fundamental to Indian Constitution, and this has been wounded gravely in India. These incidences have prompted the World Justice Project to rank India 69 out of 128 countries worldwide on the Global Rule of Law Index 2020, on the basis of widespread violations of Rule of Law through instances of corruption (like excluding the PM Cares Fund from the Right to Information Act, 2005); violations of fundamental rights through extrajudicial and arbitrary executions (with the Uttar Pradesh police tweeting that it killed 103 criminals, and injured 1,859 in 5,178 police engagements in the last two years in December 2019); failure of the Reserve Bank and the Telecom Regulatory Authority of India to perform regulatory enforcement and curb Reliance Jio’s anti-competitive policies; lack of civil justice (with the National Judicial Data Grid displaying that more than 96 lakh and 36 lakh civil cases are pending, respectively, in the district and taluk courts, and the high courts) and criminal justice (with the UP police filing a disinterested, shoddy and cattiest report in the aftermath of the September 2020 Hathras rape case). When government functionaries themselves attack the rule of law with impunity, and there is no substantive protection of the right of constitutional remedies, it is impossible to profess a free and fair democracy. The Executive and the Legislature have become a single amorphous center of authority as the ruling majority silences any Opposition or renders them inept, and the independent Judiciary as the last bastion of democracy now seems to largely serve to advance government interests by not subjecting clearly unconstitutional laws such as the Love Jihad Law (enforced in Madhya Pradesh and Uttar Pradesh in 2020) to judicial review and dispensing clearly politically-motivated judgments such as quashing the bail of the unlawfully arrested Dalit activist Anand Teltumbe in March 2020. When the independence of the Judiciary is called into question, the very basis of Indian democracy falters.
The way forward seems difficult. The institutions and authorities tasked with protecting Indian democracy are either faltering or consciously contributing to its dismantling. Stronger independence of the media through politically unencumbered news-houses, greater support given to student activists and artists campaigning against the arbitrary exercise of force, and the utilisation of political participation to authorise a government that will protect democracy are possible ways to repair this situation.
- Daniyal, S. (2019, February 23). The Modi Years: What has fuelled rising mob violence in India? in.
- Freedom House. (2021). FREEDOM IN THE WORLD 2021. New York: Freedom House.
- India Today Web Desk. (2021, February 2021). Disha Ravi case: What is a toolkit that has brought activists under the lens? India Today.
- National Crime Records Bureau. (2019). Crime in India 2019. New Delhi: Ministry of Home Affairs, Government of India.
- Nazareth, S. (2021, March 31). In BJP’s regime, the path to legitimising and legalising bigotry is now well charted. National Herald.
- Prerna Dhoop, V. D. (2020, November 16). Rule of law in India- a distant dream.
- The Hindu Editorial Staff. (2020, July 20). Rule of mob: On mob lynching in several states. The Hindu.
- The Wire Staff. (2021, January 18). As Indore Police Admits It HAs No Evidence Against Comedian, UP Police Moves To Make Arrest. The Wire.