Republic in the crosshairs of authoritarianism & Constitution

[Note: This article was published on LiveLaw dated 26 January 2024. As the article is behind a paywall, I am sharing the text of the published article here]

https://www.livelaw.in/articles/ayodhya-ram-temple-inauguration-modi-secularism-democracy-247679

The consecration and inauguration of the Ram Temple at Ayodhya by Prime Minister Narendra Modi on 22 January 2024, in the presence of a contingent of former judges, including some who authored Ayodhya Judgement in the Supreme Court and High Court marked a very crucial moment in the history of the Republic. This moment not only showcases the conspicuous, blatant, and systemic intertwining of state, politics, and religion. It has even given short shrift to constitutionalism while bringing to the fore the metamorphosed nature of the Indian state. Differently put, the regime inaugurated in 2014 with Modi as PM in general and the Ayodhya episode, in particular, raises serious questions over the nature of secularism and democracy in India.?

The story of consecration, moreover, is incomplete, or maybe a non-starter, without the enabling role played by the Indian judiciary, especially the Supreme Court. The controversial 2019 Supreme Court ruling in which the disputed land was handed over to a trust to be created by the Government of India paved the way for the construction of the temple.

Meanwhile, it is startling to observe that despite international organisations, commentators, and civil society organisations underscoring that India is experiencing unprecedented democratic backsliding, it has no visible effect on Modi’s electoral outcome. Instead, in the 2019 general assembly elections, the BJP performed quite well in comparison to 2014. That being said, things have come to such a pass that constitutional scholar Arvind Narrain in India’s Undeclared Emergency observed that India is “slouching towards totalitarianism”.

What explains the above political moment, contradictions, and how the same was facilitated? Is contemporary political experience an aberration or culmination of the political and constitutional issues which never got addressed during the birth of the Republic in 1950? Why is it so that PM’s? style of governance and charisma not only resonate with a large section of Indians, it even play a crucial role in organizing and mobilizing people around issues that correspond to Hindutva ideology?

Law as a site of authoritarianism

The regime inaugurated in 2014 with Narendra Modi as the Prime Minister and Hindutva as one of its defining features is simply playing by the authoritarian playbook. According to Oxford Reference, authoritarianism is “A style of government in which the rulers demand unquestioning obedience from the ruled … [and] … it often means the same as despotism, an older word”. In its rule over the last ten years, the present government has made all the attempts either through policies or laws to decouple politics from the bounds of constitutionalism. Before engaging with specific ways in which it has been decoupled, a comparative overview of the relationship between the enabling role of law and authoritarianism would be instructive.?

In their study of American democracy, Steven Levistsy and Daniel Ziblatt in How Democracy Dies make a fine distinction between the methods deployed by would-be-autocrats to usurp and consolidate power at the cost of other organs of the state and institutions. ? Unlike the twentieth-century patent methods such as “Men with gun,” and tanks on the street, “coup d’etat”, “military power and coercion”, autocrats of the twenty-first century are more subtle and sharp in their approach. “Democracies may die at the hands not of generals,” notes Levistsy and Ziblatt, “but of elected leaders—presidents or prime ministers who subvert the very process that brought them to power.” Forbearance and democratic norms, aspects important for the sustenance of constitutional democracy, identifyLevistsy and Ziblatt are being neutralized, if not undermined, by the practice of constitutional hardball. Constitutional hardball, in the words of Mark Tushnet, “consists of political claims and practices-legislative and executive initiatives-that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings”. Few of the corollary of constitutional hardball in the field of politics and law, illustrate Levistsy and Ziblatt, gets manifested in the form of “ packing and “weaponizing” the courts and other neutral agencies, buying off the media and the private sector (or bullying them into silence), and rewriting the rules of politics to tilt the playing field against opponents”.

It is not just the United States of America where laws, rules, and regulations have been used to undermine constitutionalism. This phenomenon has perhaps become a significant feature of global politics. Kim Lane Scheppele and Javier Corrales’s study of authoritarianism in Hungary and Venezuela, respectively, through the framework of autocratic legalism, emphasize the role of law in the consolidation of power by autocrats. Unlike Coralles, whose study focuses on the “use, abuse and non-use . . . of law”, Scheppele extends her framework by arguing that even new laws are created by autocrats to consolidate power.

In the foregoing account, two things come out very prominently. First, rules, laws, regulations, and norms, are being misused to undermine constitutionalism. Secondly, by the time, the features of legal authoritarianism are visible, it is very late, for the autocrats execute it with subtleness and precision. Doing so allows them to maintain the veneer of legality and, by extension, legitimacy.?

Authoritarianism in India – A Brief Account?

The contemporary authoritarian march in India under Prime Minister Modi is not very different from its global counterparts. Like them, India under Prime Minister Modi has engaged in all or a combination of the following to consolidate power:? undermining constitutional norms, twisting established democratic principles, weaponization of laws, portraying opponents as enemies rather than competitors, taming media, persecution of minorities, to name just a few.?

In India, the authoritarian project is not just about power. In great measure, it is also about redefining India in terms of the Hindutva philosophy.? Engaging with the interplay of authoritarianism with state, law, and society, Mohsin Alam Bhat et alpresent a poignant picture. According to Bhat et al, “India’s spiral towards authoritarianism is also characterized by a range of disturbing and insidious developments beyond the centralization of state power, which are more concerned with majoritarian power seeping into everyday legality”. The Indian authoritarian project, besides counting on law as an enabler, is unique in other respects too. Rochana? Bajpai and Yasser Kureshi in their study of authoritarianism in India and Pakistan respectively came up with an analytical tool called democratic authoritarianism. Bajpai in the context of India observes, “… democratic authoritarianism is a broader process involving mechanism of institutional and ideational capture, which may be initiated and implemented by executives, legislatures, judiciaries as well as non-state organizations, often acting in tandem”.??

Moreover, constitutionalism in India, which was inaugurated with the coming of the Republic in 1950, had certain promises at its core. These promises were, inter alia, to establish a culture of accountability in place of a culture of authority, which existed during the colonial rule, and check the power of the state. Instead of delivering on this, Uday Singh Mehta reminds us that, “[Indian ] constitutionalism must and does constitute power, and increases and celebrates its ambit”. For, Mehta adds, “… in that vision, freedom is recessed, and the tendency for political power to operate without limits deeply ingrained”. In his account of constitutionalism, Mehta makes a very important point. National integrity and unity, social upliftment, and international image underscore Mehta, were the foremost concern of the constituent assembly members. Constitutional provisions need to correspond to these three concerns.? Commenting on the ongoing constitutional crisis in India, Tarunab Khaitan notes that, “This [the crisis] became possible in part because of some original design flaws in the Constitution (such as the centrally appointed office of the Governor and the? inadequate protection of opposition rights), the failure of key institutional watchdogs to do their duty, and political failure of the Opposition to launch a united resistance.”

The above discussion demonstrates that constitutionalism which was trusted to spawn and entrench a constitutional culture, owing to its misplaced priorities informed by, inter alia, the political exigencies of the late 1940s, did not just fail, but in the journey of the Republic in seven decades has been pulverized by populist and authoritarian forces. The fallout of this phenomenon, which is so central to Indian politics, has been that institutions in India never gained the kind of independence and robustness one experienced in the U.S.A. The robustness and independence of institutions are important for obvious reasons. In this regard, Gyan Prakash in Emergency Chronicles makes a very perceptive argument by comparing the kind of resistance Trump and Modi experienced respectively from different quarters. Prakash writes, that unlike “… the organic resistance in the United States to Trump’s racist agenda” India cannot boast any such significant ones. The reason for this, according to Prakash is that “No history of civil rights battles stands behind the granting of equal rights to minorities in postcolonial India. Instead, it was the nationalist struggle against British rule that produced a secular and democratic constitution.”

In India, political parties across the spectrum have used tenuous democratic institutions to further their programs and policies over the years. Nevertheless, they used to maintain a modicum of constitutionalism; an element of forbearance was there. However, the Modi government has given short shrift to both. Instead, it has hollowed the institutions, has introduced majoritarianism at the core of politics, and has made the agenda of Hindutva, the official policy of his governance. Doing so, consequently, helps Modi in manufacturing consent for his authoritarian style of governance. The near absence of independent media in India, along with the ecosystem of hate speech, misinformation, and disinformation, has become the hallmark of governance.??

Given the kind of constitutional crisis that India is experiencing, it is obvious to think of turning towards the judiciary, especially the Supreme Court, for succour. More so, given the fact that, constitutionally speaking, the Supreme Court of India is the guardian of the fundament rights and defender of the constitution. But calling upon the Supreme Court would be meaningful??

The record of the Supreme Court, especially over the last decade, has been precarious. For instance, take the Ayodhya and Article 370 judgments, which had a far-reaching bearing on secularism and federalism in India. Despite observing the demolition of the mosque at the hands of karsevaks as a “criminal act” and the governor concurring on behalf of the state assembly as “illegal and against the spirit of its constitution” respectively, the Supreme Court gave judgment in favour of the those who demolished. The new jurisprudence marked by the disjuncture between the obiter and ratio of the judgments is a sign of New India in which, as Hilal Ahmed argues, Hindutva constitutionalism is the North Star. The failure of the SC to address, if not tame, the contemporary authoritarian march is not so much due to institutional incapacity; it is because of structural problems. Ran Hirschl’s framework of juristrocracy aptly explains this. According to Hirschl, one must be mindful of two things about judges, judiciary, and judgements- it has to abide by national meta-narratives, and it doesn’t operate in a vacuum. Juristocracy is indeed an important part of Indian judicial and political life, and national-meta-narrative is the element that constitutes Hindutva philosophy. However, the Indian political landscape is neither averse to national-meta-narrative nor oblivious juristocracy. ?Instead, their provenance is old.?

The political landscape of the late 1980s through 1990s was marked by social churning. Saumya Saxena writes that owing to communal violence during the last decade of the twentieth century “Hindu nationalism looked for an anchor in the ‘law’ for its political strategies and cultural claims”. The judgement by the SC in Dr Ramesh Yashwant Prabhu v. Shri Prabhakar Kashinath Kunte describing Hindutva as “a way of life”, underlines Saxena, “more importantly …? permitted a judicial route to the legitimation of Hindutva even before it was politically tested.”

Juxtaposing the consecration of Ram temple at Ayodhya by Prime Minister Narendra Modi with the above discussion doesn’t come across as an aberration. Instead, it has been in the making for very long. This, of course, doesn’t correspond to the plural, diverse, and egalitarian values of the Constitution.