Protecting a people's democracy

The executive branch should not have the power to appoint public officials whose role is to protect the Constitution and prevent executive overreach

The past week has seen the rapid spread of public protests against the National Register of Citizens (NRC) and the Citizenship (Amend­ment) Act (CAA). Besides the immediate cause, these protests also reflect a growing sense that the ruling party, which won 37 per cent of the popular vote, is ramming through its agenda without consulting with Opposition and state governments or taking into account the possible views of the 63 per cent of the voters who did not support them. There is a fear that we are drifting towards a regime where there may be little protection against executive ove­r­­reach as crucial constitutional posit­ions and autonomous institutions are no longer structurally isolated from political interference. The sovereignty of people is losing ground to the executive power of the ruling party.
 
Nearly 500 hundred years ago a powerful and pioneering text came out outlining for the first time the principles of sovereignty that rested on people’s consent. It is titled “Vindiciae Contra Tyrannos” or “A Defense of Liberty Against Tyrants”. There is much in this ancient text that resonates even today, not just in India but also in other democracies.
 
With regard to the duty to obey rulers, the text says: “Accordingly, rulers need to know how far they are permitted to extend their authority over their subjects, and their subjects need to know in what ways they are to obey, lest should the one encroach on that jurisdiction, which no way belongs to them, and the others obey him which commands further than he ought.”
 
From the present perspective what is very relevant is the distinction that the Vindiciae draws between pu­blic officials, who are servants of the ruler and those who should consider themselves servants of the people. Hence the Vindiciae states: “The responsibility of the one is proper relation to the care of the king’s person; that of the other, to save the commonwealth from da­mage; the first ought to serve and assist the king, just as all domestic servants are obligated to their mast­e­rs; the other to preserve the rights and privileges of the people, and to hinder the ruler so that he neither omit the things that are advantageous to the state nor co­mmit anything that may cause damage to the public.”

Illustration: Ajay Mohanty

This distinction between the two classes of public officials is not implementable unless the procedures for their appointment are also differentiated so that the executive does not play a decisive role in choosing the public officials who have to prote­ct the Constitution and people’s ri­ghts. This matters most for the integrity of the election process, impartiality and objectivity in the formation of post-election governments and in the independence of the judiciary and the police from political interference.
 
The first and most important set of public officials from this perspective of protecting people’s rights are the governors of states. At present they are appointed by the ruling entity at the Centre with little regard for any factor other than political loyalty. As of now, all but three state governors are party loyalists. The Sarkaria Commission made several recommendations to improve matters, including that the governor should be an eminent person from outside the state, that he must not have participated in active politics, at least for some time before his appointment, and not be too intimately connected with the local politics of the state. Most importantly, it argued that the governor should be appointed in consultation with the chief minister of the state, vice-president of India and the speaker of the Lok Sabha. Except for the recommendation that he should be from outside the state, none of the other recommendations have been implemented by this or any previous government despite exhortations from the Supreme Court. This has to change if federalism is to be protected and some semblance of propriety is to be preserved in post-election government formation.
 
In a people’s democracy, maintaining the credibility of the election process is vital for political stability. The election commissioners are appointed by the ruling executive without any consultation. We have been fortunate that a few outstanding election commissioners have risen to the challenge and helped to build up a credible institution. But lately, there have been growing concerns about their impartiality and the time has come for a more consultative and transparent process of appointment. In June 2012, Lal Krishna Advani suggested that appointment of chief election commissioner should be made by a bipartisan collegium consisting of the prime minister, the chief justice of India, the law minister and the leaders of the Opposition in the Lok Sabha and the Rajya Sabha. But it was not accepted then and will not be revived now by the ruling party. But such a procedure is now even more necessary to maintain faith in an electoral process in the midst of deep ideological conflicts.
 
The independence of the higher judiciary is crucial for protecting people’s rights and ensuring constitutional propriety. Following a 1993 judgment, the procedure for the appointment of Supreme Court and High Court judges shifted the power of choice from the executive to the Supreme Court and High Court collegiums. There have been demands for greater transparency to which the Court has responded.  But the real guarantee of independence has to come from a judicial culture that stresses the crucial role of judges in ensuring constitutional propriety and protecting people’s rights.
 
The police are part of the executive machinery of the state. But their independence from executive press­ure needs to be ensured to protect the rule of law and p­e­­ople’s rights. In 2006, the Supreme Court delivered a ma­jor judgment on police reform that required, among other things, the establishment of State Security Co­m­m­issions made up of a responsible minister, leader of the Opposition, other elected representatives, experts, and credible members of civil society, a National Se­curity Commission, a Police Establishment Board, and a Police Complaints Authority, all designed to ensure merit and transparency in higher-level police appointments. Regrettably, the actual pace of implementation of these reforms has been tardy, to say the least.
 
All governments so far have resisted changes in the appointment procedures of governors, election co­mmissioners, and higher police personnel. This is not going to be any different now, and maybe even mo­re difficult with strong ideological divides amongst po­li­tical parties. The only answer lies in effective action by the Supreme Court using its powers of complete ju­s­tice under Article 142 to set out appointment proc­e­d­u­res for these functionaries that will ensure selection based on recognised merit and transparency, neutrali­t­­y, objectivity, and impartiality in the process of selection.
 
Till then, one can only exhort those who occupy these key positions to remember that they are not answerable to those who have appointed them but are accountable to the people of the country for protecting constitutional propriety and the rights of the people as a whole.
 
Let me conclude with one final admonition from the Vindiciae: “It is therefore permitted the officers of a kingdom, either all, or some good number of them, to suppress a tyrant; and it is not only lawful for them to do it, but their duty expressly requires it; and, if they do it not, they can by no excuse colour their baseness.”
 
nitin-desai@hotmail.com