Institutional and Non-institutional Pillars of Indian Democracy

Introductory: India’s Uniqueness

A threshold question, naturally arising, is why this title for this memorial lecture? First, because the person in whose memory it is being delivered was clearly someone who understood the spirit of democracy and the importance of its institutional pillars. Second, if I may say so, this understanding of the essential nuts and bolts of democracy has also been reflected in the conduct of the organiser of this lecture, an illustrious son of an illustrious father. Third, and even more important, we must sometimes state and underline the obvious so that we do not take the latter for granted. These pillars may be self-evident but should never be taken for granted. Fourth, and most important (and I am certainly open to questioning on this and would be happiest if proved wrong), many of these fundamental institutional pillars of Indian democracy, and much more significantly, several of its non-institutional pillars, have been, in different degrees, threatened, diluted, assaulted and weakened in the last 5 years, as seldom before. Finally, all institutional pillars need the bedrock of non-institutional pillars to take root, survive and thrive. They are both important but, if forced to choose, the latter must take precedence over the former.

The defining aspect of Indian democracy is that there is no more diverse spot on earth than India and only a few larger than India. India, the world’s largest democracy, is also the world’s second most populous country and the seventh largest country in the world in terms of area. We are now world’s sixth-largest economy, surpassing France, by nominal GDP and the third largest by purchasing power parity (PPP). We are behind England at the moment (on nominal GDP basis) but are expected to surpass Britain next year to become the world’s fifth largest economy. For over 20 years—1998 to 2017—(as you can see, I am avoiding politics by taking a 20 year horizon), India has consistently had over 7.10 per cent average annual growth, each year, year on year, and in some years well over 10 per cent as well. Historically, from 2004 until 2013, India’s average annual GDP growth was 7.74 per cent. Very few countries have consistently done average annual growth of 6.92 per cent for over a quarter of a century. We are thus, for our size, the fastest growing major economy in the world. India is expected to be the third largest consumer economy by 2025 when its consumption may triple to US$4 trillion and is estimated to surpass the USA to become the second largest economy in terms of purchasing power parity by the year 2040.

Its diversity is manifested in twenty-two scheduled languages, over 700 mother tongues, over 2000 dialects, the world’s largest population of four religions (Hindu, Sikh, Jain and Parsi), the world’s second largest population of Muslims and a significant number of other religious adherents including Buddhists. Every major racial grouping is present in India and it has thousands of bewildering rituals, foods, smells, sounds, music (in all forms), dances and so on. It cannot therefore be overemphasised and is indeed axiomatic, that to qualify as a pillar of Indian democracy, the relevant institutions must preserve and promote this essential, unique and unprecedented diversity of India.

No discussion on institutional and non-institutional pillars of Indian democracy can begin without analysing the idea of India. Why is it that India is the only country, which emerged between the 1930s and 1960s, from the yoke of imperialism, along with 20–30 other such nations, but remains the only vibrant democracy amidst the wrecks and ruins of constitutionalism in Asia, Africa and South America. No easy answer exists. First, good luck. Second, we got the sequencing right, viz., Gandhi followed by Nehru. The former, the best agitational (and non-violent) practitioner alone could have got us freedom and Nehru, the eternal democrat, who encouraged each institutional but, even more importantly, several non-institutional pillars of Indian democracy to take root, was the best head of government, which India in its formative years of infancy could have hoped for. The pillars Nehru assiduously worked on include secularism, federalism, socialism, parliamentary democracy, the Indian army, Comptroller and Auditor General (CAG), and Election Commission (EC), an independent judiciary, a noisy press, and so on. Our founding fathers, led by Gandhi, Nehru and Patel, sowed the seeds of such institutions with love and tender care, nurtured them with magnanimity, autonomy and independence and irrigated them with blood, sweat and tears. In each of the other countries emerging from British, French, Dutch or Belgian colonialism, including our immediate south Asian neighbours or more distant nations in Africa, South America or Australasia, such institutions were aborted or distorted before taking root (Incidentally, Gandhi had an impish and childlike sense of humour. He is said to have ordered a new set of dentures just before embarking upon a fast unto death!).

Secularism: A Self-preservatory Ethic or Largesse?

With such pluralities, secularism is almost a self-protective mechanism for India. India has had a remarkable record of secular, non-theocratic governance, but if truth be told, the more one lets go in India, the more India binds and holds together. Conversely, the more one pulls together or tries to impose any single value or ethic, the more India is likely to break apart. Simple as it sounds, it still amazes me as to how many persons forget this reality and how many times!

Secularism, no doubt the most abused by all sides of the political spectrum, is no favour we do to anyone except ourselves; it is a necessary essential in planet earth’s most diverse country, India, which has more religions, languages, dresses, foods, ethnicities, habits, smells, sounds and views than anywhere else. Secularism has thus been an effective vehicle to manage diversities. Its formal declaration and official practice have generated a sense of reassurance and security to India’s multiple diversities and provided a crucial underpinning for democracy. The shortest possible definition of democracy was provided by Abraham Lincoln: of the people, by the people and for the people. Professor Bhargava has explained this phrase ‘of the people’ to be one of the most vital and crucial parts of the definition since it is meant and intended to convey part ownership of democracy. Without this sense of belonging to and ownership of democracy by each aam admi (common man), democracy cannot succeed. Secularism is thus also intended to impart that sense of inclusion without which democracy cannot survive.

The Indian legal and practical approach to secularism has not been the negative antiseptic Western approach, principally centred around State neutrality towards religion. The Indian approach, on the contrary, has been Sarva Dharma Sama Bhava, that is, an affirmative exhortation to let multiple and diverse religions flourish and grow with freedom to practise, profess and propagate without fear or obstruction.

It is in this light that we have to deeply introspect about the new ethic of the so-called New India, where everyone must wear one’s nationalism on his sleeve and one’s intolerance of another on his lips. An India where fear or mistrust, both of your neighbour as also of governmental and regulatory authorities pervades the mind, cannot be an India of anyone’s dreams. An India, which looks upon sections of its own citizens as if they live here as licensees and at the sufferance of others, subject to good behaviour determined by fellow citizens, is the antithesis of the India of my dreams. An India that imposes uniformity upon diversity not unity in diversity as the answer to our ills is an India, which cannot have a great future. I have always believed that the key to India holding together and prospering is to give more and more lead to the kite string, which makes it soar. The more you let go, the more India soars. The more you impose, the more you pull, the more India snaps.

As someone put it ‘Some birds are not meant to be caged, that’s all. Their feathers are too bright and their songs too sweet and too wild. So you just let them go’. India is certainly that special bird species.

Indian ethos and its democratic traditions are too deep, too wide, too diverse and too argumentative for India to be redefined or its identity to be re-written. But I have to sadly comment that the fact India is resilient has not deterred many and one cannot fault those many for lack of trying. Naturally, the best place for such people to start is from this first institutional pillar of Indian democracy, viz., secularism.

The word ‘secularism’ was inserted much later in the Indian Constitution, in 1976, by Mrs Indira Gandhi. I always find it amusing when I hear her critics say that this addition is superfluous, because according to them, secularism is inherent in India and India is, has been and will always remain secular. Such critics fail to realise that even if this is true (and some of our history shows that it is not always so), the mere elevation of a basic value into the constitutional text acts as a bulwark against its future dilution and destruction. Most crucially, it makes it a part of the basic structure of the Indian Constitution, which is admittedly non-derogable. That is a huge advance.

The other most important word, which keeps company with ‘Secularism’ in our preamble, is the word ‘Fraternity’ along with, ‘Equality’. Each of these words takes colour from the other and they cross-fertilise each other. Fraternity conveys the essence of trust, reassurance, security and the exclusion of the three D’s—Divisiveness, Distrust and Disharmony.

Having dealt with this principle and first pillar of Indian democracy, we would all be guilty of ivory tower, ostrich in the sand and academic seminar talk unless we do a quick audit of ground realities in the past few years. First, it is undeniable that unimaginable hate-filled comments have been heard and read in far greater abundance than ever before in independent India’s history. I have quoted in a footnote the exact words typifying such provocative and divisive thinking ranging from those in June 2016 from the Head of India’s premier art and culture agency to those in November 2017 by the Chief Minister of India’s most populous state to the admitted intention of changing India’s Constitution expressed in December 2017 by a freshly inducted Union Minister to the June 2018 remarks of a currently out of favour RSS ideologue. ¹

Second, not only is the quantity of such statements alarming and their quality reprehensible, but they emanate from the top echelons of power, including sitting Union Ministers, senior ruling party office bearers, front-running campaigners of the ruling party, Members of Parliament (MPs), MLAs and so on. Third, such egregious conduct is never (repeat not even once) visited with any penal consequences of any kind, for example, suspension, expulsion, removal, etc. Fourth, these are not individual unconnected events but part of a larger, cohesive and seamless strategy to send a message to restless cadres and fulfil past promises, along with a clear intention to spread fear, insecurity and distrust among citizens.

The threat to secularism is always more acute when it is from within and it is acutest when the ‘within’ comprises the governing levers of power. Without trying to learn the lessons of history, we will always be condemned to repeat its errors. Remember, our Constitution was drafted after 3 years of painstaking deliberations and completed on 26 November 1949, celebrated for decades as the Law Day and now as Sanvidhan Diwas. Barely 4 days after 26 November 1949, the editorial of the Organizer, dated 30 November 1949, in a scathing criticism of the far-sightedness of our wise Founding Fathers wrote But in our Constitution, there is no mention of the unique constitutional developments in ancient Bharath……To this day, the laws of Manusmriti excite admiration of the world…….But to our constitutional Pandits, this means nothing. It is hardly surprising that this sentiment was echoed by other fundamentalists, who find mention in my footnote. ²

Socialism: An Inherent Part of the Identity of a Transforming Economy

Socialism is another self-protective mechanism for a country with India’s disparities. Just as diversity management makes secularism and federalism essential pillars, disparities make socialism an inevitability. Without the bedrock of self-sufficiency and public sector enterprises created by the much maligned Nehru, India would not have had the economic spine it has today and would be like a rudderless ship. One can never forget that despite all our advances, India remains essentially a poor country. Even by our somewhat abysmal official definition of the poverty line as those living below ₹450 per month in rural areas and ₹578 in urban areas, more than 21.9 per cent per cent of India’s population remains below this artificially defined poverty line. More than absolute poverty, the inequalities in India are humongous and benumbing. The Gini coefficient developed by the United Nations, which measures inequality, puts India at number 66 in a total list of 136, where the higher the number, the more unequal the country. This is despite 140 million people being lifted out of poverty between 2004 and 2012 and the poverty ratio being reduced from 37.2 per cent (2004) below the poverty line to 21.9 per cent (2012).

In this context, there could be no question that socialism was the only option for a nascent, independent India in the early 1950s. No doubt, people are retrospectively critical that Nehru’s unshakable belief in socialism consigned India to a low growth rate, at the so-called ‘Hindu rate of growth’ between 3.5 to 4.5 per cent. But these modern-day armchair critics fail to realise that it was his socialist philosophy for growth, which laid a firm foundation for the public sector in India. India’s solidity and self-reliance in core sectors such as steel, chemicals, textiles, indigenous defence manufacturing and banking owes entirely to this approach. In my teens, I recollect how, as Indians, we were always embarrassed at finding in our immediate neighbourhood glittering foreign branded goods, from toasters to cars. India, on the other hand, craved for global and foreign brands, since Nehru’s doctrine of self-reliance made us do with ‘made in India’ goods in diverse spheres for many decades. With contemporary globalisation, the craze for foreign travel and foreign goods is fast vanishing in India. But the Nehruvian legacy has given us solid manufacturing and service sector foundations, not only making our foreign exchange reserves very impressive but also giving us both a self-reliant as well as a competitive edge. It would also repay study and research as to how much this self-reliant, inclusive state control of essential resources stood India in good stead when we were able to weather the 2008 global financial crisis with minimum pain and regained the 8.5 per cent annual trajectory of growth within 1 year.

The contemporary counterpart of Pandit Nehru’s philosophy of socialism has been the inclusive approach to governance by both the Congress-led United Progressive Alliances (UPA-I) and UPA-II, returned to power successively in 2004 and 2009, and, indeed, even the supposedly right-wing BJP-led NDA. The world’s largest social welfare scheme, the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) is the result of this socialistic and inclusive approach. Its guarantee of 90 days of employment in a financial year to one adult of each family in the rural areas has led to remarkable transformation in rural poverty. We also have the world’s largest insurance scheme for the unorganised sector, viz., Rashtriya Swasthya Bima Yojana. It covers 23 million families and provides minimal but critical medical insurance cover for those living below the poverty line. These examples could be multiplied manifold. The Food Security Act guarantees the supply of 35 kg of wheat or rice per family per month, involving an aggregate disbursal of food worth about ₹80,000 crore per year covering about 800 million individuals.

Critics and cynics may scoff at such paternalistic, socialistic and inclusive programmes, which appear to defy all norms of reasonable market behaviour and replace Adam Smith’s ‘Invisible hand’ with the very ‘visible hand’ of the Indian government. But upon a close second look, none except a die-hard critic can deny the necessity and efficacy of such basic social welfare initiatives. Runaway capitalism or the official worshipping of a whole-scale, non-inclusive market-driven economy without adequate safety nets, would not have allowed India to become the world’s largest democracy. Socialism, according to me, is an inevitable necessity in India, irrespective of the colour of the government.

Economic left-wingism has a totally different meaning and context in developing and transforming economies as opposed to developed ones. It is, of course, true that one has to move with the times and make graded changes of degree in evolving and dynamic situations. Thus, for example, it may well be true that India overstayed its position of an excessive degree of socialist, non-market policy making by about ten years, viz. 1970s to 1980s. That appears to be almost exactly the gap reflected between India and China, which switched to more market-friendly policies 10 years ahead of India. One may rightly be able to criticise the delays in making such mid-course corrections in India, but that cannot either detract from the achievements of India in the first two decades of building its economic foundations nor from the efficacy of Socialism as the third foundational non-institutional pillar of Indian democracy. Distributive equity—how the cake is distributed—will always be more important in India than growth equity, that is, how fast the cake grows. In economics, I have always held that the most right-wing government imaginable in India will necessarily always be to the Left of the US Democrats and the British Labour Party, both of which are considered left-wing in their respective countries!

Parliamentary Democracy: To be Cherished, Not Replaced Formally or Functionally with Presidential Models

We are not merely a democracy but a Parliamentary one. The Parliamentary prefix to our democracy underlines that institution as the temple and soul of democracy. The essence of parliamentary democracy lies more in intangible and personal elements and not so much in the interstices of the Constitution, laws or regulations. The fact that I sit every day in the Central Hall of Parliament with MPs from every shade of the political spectrum and that I am able to converse freely and openly on diverse matters of public interest, even where there is positive disagreement between our respective parties, reflects the essence of parliamentary democracy. When we travel domestically or abroad as a parliamentary committee comprising opposing political forces, we are still able to present a united front on several issues and reach conclusions in the national interest. Mr Vajpayee, the former Prime Minister of India, was able to pick up the phone and congratulate Dr Manmohan Singh after losing elections to the latter. Ms Sonia Gandhi and Mr Advani are able to talk with each other and deal with each other on a daily basis. One does not try to throw the other into jail, consequent upon each change of government. These are facets of Indian parliamentary democracy, which we take for granted and which is why they need to be re-emphasised all the more. Travel a few hundred kilometres away from India in any direction and you will not find anything like this. India has captured not only the letter but the spirit of parliamentary democracy. It is that culture, that spirit, that approach, those conventions and practices, which constitute the heart and soul of parliamentary democracy and not the text of the law or the rule. So long as India retains that effervescent spirit, parliamentary democracy is safe and sound, alive and kicking. The fact that Nawaz Sharif, Musharraf and Imran Khan cannot sit together in Pakistan or that Khaleda Zia and Sheikh Hasina cannot do so in Bangladesh, is something not to be taken for granted in India but a contrast we deserve to cherish. Consequently, when vendetta politics or an over-aggressive Presidential style of governance creates chasms of fear, doubt and distrust, those responsible for it are diminishing Indian democracy in the long run. Unfortunately, a brand of vendetta politics based on fear and retributive justice, originally unknown in India, then slowly expanding from Tamil Nadu to West Bengal to Punjab, has now been entrenched in our national politics for the first time. My fears for the future are therefore legitimate. For future central governments of different political colours to show restraint and sobriety is bound to be a creditable model exercise in statesmanship.

Parliament is an institution with multiple roles. First, it is obviously created to pass laws. Second, it is intended to be a forum for free, fierce and fair discussion on non-legislative matters. Third, it is supposed to symbolise and signify the assent of India’s humongous population to laws made and decisions taken for their governance on the hypothesis that they cannot have direct participation. Fourth, Parliament is the grand inquest of the nation, the largest commission of enquiry, of the people, by the people and for the people, ever imagined or created. None of these roles is less or more important than the others. All of them have to be largely performed and none can be altogether ignored or allowed to fall into disuse or oblivion. But over the years, several threats to parliamentary democracy have arisen and the most crucial obligation which we owe to ourselves is to identify these drawbacks and deficiencies and take corrective action to eliminate or reform them.

In that reform area, I would opine first that Parliament does not have either the power to strike down laws in the same sense as Indian superior courts can do, nor indeed to make laws in the real suo motu sense, since law making is dependent on executive initiation and passage of laws. Separation of powers in the Indian system has never come anywhere near to the power of the US Senate to conceive, initiate and pass legislations, independent of the executive branch. However, without calling for any systemic change, I would certainly welcome some changes imparting greater flexibility to individual MPs or to an aggregation of MPs above a specified threshold, to be able to initiate legislative measures, which have a real chance of becoming law. This alone will make the legislative branch of government represented by parliamentary democracy a co-equal organ of governance in India. The present day private members’ bill is hardly a real counterpart to creation and initiation of legislation by MPs and is merely a cosmetic and symbolic exercise, ending up only as a declaration of intent.

The second major substantive reform required is in respect of the concept of a whip. The whip is a self-protective mechanism intended to guard against fickle minds and transient majorities. To the extent that it is intended to ensure that voting on momentous occasions, involving possible fall of the government, is done along party lines, it should be continued and maintained with full vigour and rigour. But amendment must be made in two areas, to prevent decimation of creativity, independence of thought, deed and action and the elimination of a routine herd instinct amongst MPs. The first area is a reform of the law to provide that no whip shall operate in respect of legislative voting or in respect of initiation of any legislative measures. In other words, MPs must be free, collectively more than individually, to initiate bipartisan legislation cutting across political party boundaries.

Third, it should be constitutionally mandated that mere failure of passage of legislation by the government of the day shall not constitute and shall not be deemed to be a vote of no-confidence. A vote of no-confidence, leading to a possible fall of the government, shall be done under this changed law, only by a specific resolution so styled and passed as a vote of no-confidence. In such a specific no-confidence motion, a whip can and should be allowed to operate. Once the law clarifies that the failure of passage of legislation shall not be deemed to constitute lack of confidence in the government of the day, the underlying rationale in providing for and issuing whips, which are binding, even in respect of voting on any legislation, would become meaningless.

An obvious and major fourth threat to parliamentary democracy is the virulently increasing disruption of Parliament. As it is, the Indian Parliament meets for less than 4 1/2 months every year. There are several state assemblies, which meet for less than 4 months a year and some for as little as 10–20 days in a year. Within this limited schedule of sittings, the non-operational part of Parliament threatens to overshadow the identity and existence of the institution itself. For instance, between June 2004 and December 2007, the Lok Sabha lost a total of 370 h. In 2007, the Lok Sabha worked only 66 days as against 144 days of the House of Commons in the UK. In the February–March 2007 Budget Session, the House of People lost 73 h. An analysis of the hours spent by an MP in both houses in the 16th Lok Sabha (2014 onwards) shows that productivity is less than 10 per cent on an average. There were days when less than 3 per cent of the allotted time was used for legislation. In the Lok Sabha, actual work has taken up 12 to 30 min on many days. The least amount spent on legislation was on 7 March 2018, by the Upper House—it spent only nine mins. The hours lost every day in the Lok Sabha has been over 5 h daily. The Rajya Sabha has not fared any better since the lost time hover between 4.97 h and 5.82 h as most sessions have been adjourned.

The crux of the problem lies in the fact that in these cases, the lawmakers are the lawbreakers and more importantly, there is no real prejudice or pinch, consequent to the violation of rules created to combat disruptions. Mere suspension of legislators is not an effective answer, since boycotts and other forms of disruption are normally party sanctioned or collective in nature. I can only advocate, first, an automatic suspension of allowances per day or per hour, lost on account of disruptions. It has to be combined, additionally, with suspension of named members, which would have to be allowed to continue for a prolonged period of time. Such penal action should not be allowed to be revoked because of some misplaced notion of benevolence.

Fifth, the human resource making up the content of Parliament itself requires special focus. It is imperative for Parliament as an institution to agree upon and enact a set of simple, clear and lucid rules, which state with certainty the stage of criminal or civil action, beyond which an individual is rendered ineligible to seek election to Parliament. That stage cannot be the mere levelling of an allegation or the mere filing of a First Information Report (FIR). Equally, it cannot be an eternal and never-ending journey to conviction as a ground for ineligibility. The most apposite intermediate criterion for such electoral disqualification, would, in my opinion, be the stage of framing of charges by a court of law, within a restrictive list of certain specified offences, relatively more grave in nature, resulting in electoral disqualification.

The proportion of those with one or more criminal cases registered against them is 14 per cent among candidates but 30 per cent among the elected members. Thus, the victory rate of those who are accused is higher than among clean candidates having no criminal case pending. Indeed, detailed data show a steadily rising trend of the victory rate as we move from groups of candidates with no accusation to those with a larger number of cases registered against them. Once we drop the members with registered cases for minor crimes, the proportion of members charged with serious crimes in the Lok Sabha drops to 14 per cent. In absolute terms, this still translates into as many as 75 members!

Sixth, the long-term area of concern on issues of human resources in parliamentary democracy is the accelerating trend of having more and more moneyed individuals in Parliament as also a large percentage of MPs from families who have had significant historical presence in Parliament. The objection is not in respect of rich MPs but rather qua cases where there is fair basis for saying that their presence in Parliament is because of or on account of the use of such money power instead of any personal USP or talent. That our Parliament is also becoming more and more hereditary is also a matter of legitimate concern. Why did so many candidates with serious criminal cases pending against them win the elections? A more promising explanation is that candidates facing serious criminal cases also happen to be wealthy. This allows them to buy both social status and a ticket from a major party. In addition, some of these candidates may be incumbents and, therefore, enjoy the associated benefits of name, recognition, patronage and access to the official machinery.

Judiciary: Reform from Within, Else Face Undesirable External, Legislative Reform

The Indian judiciary has emerged as one of the most remarkable pillars of Indian democracy. It is certainly the organ in which the general public continues to repose the maximum faith. Its reach, content, effect and consequence are humongous. By and large, despite extremely rare aberrations, it has displayed fierce independence in decision-making. It has created avant-garde doctrines and principles, which have made it the most powerful and dynamic judiciary in the world. The basic structure doctrine is a case in point: it can make even constitutional amendments unconstitutional! It is a pure judicial invention but since its creation, it has been adopted by other judiciaries around the world. The basic structure doctrine says that, while the power to amend the Indian Constitution is valid and can result in amendments to the Constitution, it cannot be used to amend the Constitution in a manner so as to eliminate or reduce to vanishing point its basic structure. No exhaustive list of such unamendable basic features is furnished by the judiciary. A case-by-case approach has led to the declaration of free and fair elections, judicial review, republicanism, secularism, federalism and several other facets to be part of the basic structure of the Constitution and hence unamendable. Amazing in its simplicity, the doctrine, nevertheless, acts as an effective bulwark against constitutional despotism or executive dictatorship or parliamentary absolutism. Constitutional legitimacy, for which dictators yearn, cannot be achieved in India in the teeth of the basic structure doctrine, whereby even a constitutional amendment altering republican democracy, for example, to a theocratic monarchy, would itself be declared unconstitutional.

Public Interest Litigation (PIL) with its huge diversity of facets and immeasurably potent reach is a peculiarly Indian invention. It regulates and monitors every aspect of executive, legislative and civic life of the country and is reflected in a multitude of judgments. Much of the early PILs commenced with petitioners sending postcards letters to the Supreme Court. In order to provide fuller access to courts, PILs have marked a departure from procedural rules as to the form and manner of filing a writ petition. It is common to have commissions appointed for carrying out investigations, give a report to court and appoint lawyers as amicus curiae to assist the court.

The range, diversity and reach of PILs can be understood by seeing the diversity of subject matter they cover and the nature of directions which the court gives. For instance, courts have directed improvement of inhuman conditions in Indian jails regarding undertrials, stoppage of brutalities by police, caution to industries discharging inherently dangerous acid and so on.

The twin evils besetting the otherwise glorious Indian judiciary are first, the scourge of backlog and delays and second, and to a much lesser degree, allegations (though frequently exaggerated) of corruption. The first issue, viz. delayed justice and the battle of the bulge, inevitably leads to a certain sense of disillusionment in the public.

Just to make the point and justifiably berate ourselves, I must quote Nani Palkhiwala. Many years ago, he said,

May I now turn to the situation in India which has the second largest number of lawyers in the world. While it is true that justice should be blind, in our country it is also lame. It barely manages to hobble along. The law may or may not be an ass but in India it is certainly a snail. It moves so slowly that it might be considered too slow in a community of snails. A law suit once started in India is the nearest thing to eternal life ever seen on this earth. Some said that litigation in India is a form of fairly harmless entertainment. If so, it seems to be a very expensive way of keeping the citizen amused. If litigation were to be included in the next Olympics, India would be quite certain of winning at least one gold medal.

Yes, words must be an assault on our senses if we are to bring about change. The amazing and tragic part of it is that there is not much which is required to transform it. Despite the so-called staggering figures, it is reasonably easy to do it. It is just that we need to decide on a few issues. We need to implement them consistently without change for a reasonable period of three to 5 years. The approach has to be holistic. It has to be diverse and multi-pronged. There are not just one or two issues that have to be tackled. It has to be accompanied by attitudinal changes.

Let me give you a few statistical examples to first highlight the nature of the problem and then look at some obvious solutions, which flow naturally from the nature of the problem. A decade ago, we started night courts (actually evening ones) in only two states. Forty-four evening courts in over 12 districts disposed of 39,000 cases in Gujarat within 5 months. Thirty evening courts across five districts in Delhi disposed of 1400 cases in 3 months. An evening court deals with cases, which have been languishing. But the real problem is the lack of consistency and continuity. Very few states have operationalised such courts. There is no uniform all-India model. There is wide state-wide disparity. What is the biggest cause of arrears? The irony is that our Indian judges actually dispose of more cases in one day or one week than judges of other countries at comparable positions dispose of in one year. Thus, it is not that they do not work very hard. The problem is that for a country the size of India, we have a very low judge-to-population ratio. In 1986–1987, it was ten judges for every million of population. Now, India has 19.49 judges per million people (September 2018). The same report also states that the judiciary faces a combined shortage of over 6,000 judges, including over 5,748 in the lower courts. Twenty-four high courts face 406 vacancies.

The working strength of the lower judiciary is 16,726, whereas the approved strength is 22,474. In the case of high courts, the approved strength is 1,079, whereas the working figure is 673. The Supreme Court, with a sanctioned strength of 31 judges currently (December 2018) has four vacancies. Thus, the total number of vacancies in the SC, the HCs and the lower courts come to 6,160 judges out of a grand total of less than 7300 judges. We have this strange phenomenon by which we have by law enhanced the strength of most High Courts but even after that we have not been able to fill even the original non-enhanced strength! These are very simple administrative problems. I wrote almost 15 years ago that there should be a rule that one month before a vacancy arises in judgeship, the successor should be notified. As I then said, in a lighter vein, if that does not happen, the incumbent should be deemed to continue till a successor is notified.

The debate on the judge-population ratio was re-ignited by the then Chief Justice of India T. S. Thakur in April, 2016 when, in the presence of the Prime Minister, he had lamented the governments ‘inaction’ in increasing the number of judges from the present 21,000 to 40,000 to handle the ‘avalanche’ of litigations, saying, ‘You cannot shift the entire burden on the judiciary’. He had said ‘nothing has moved’ since 1987 when the Law Commission had recommended increase in the number of judges from 10 to 50 per million. The United States judiciary at the state trial courts-level had a judge-population ratio of approximately 102 per million in 2011. Australia with a population of 22.68 million in 2012 commanded a judge-population ratio of approximately 48 judges per million.

If one sees the age profile of pendency, over 22 lakh cases, which are over a decade old, are pending in various subordinate courts of the country (September 2018). Of these, nearly 5.97 lakh cases are civil in nature and 16.92 lakh are criminal in nature. These cases (viz. over a decade old) constitute 8.29 per cent of the total nearly 2.50 crore cases pending in the lower courts.

The rate at which trial of cases is completed is also problematic. The ratio of cases brought for trial to the number of cases in which trial is completed stands at 7 per cent for the past 5 years. This clearly shows that the existing strength of judicial officers needs to be enhanced by at least seven times so that trial is completed within one year. Analysis of last year’s National Crime Records Bureau data revealed that the present strength of judicial officers is only able to complete the trial in approximately 13 per cent of cases brought for trial under the Indian Penal Code during a year. Over the next 3 years, the subordinate judiciary will require an additional 14,597 judicial officers and sanctioned judge strength of 35,155 to cater to the existing problem.

In the planned expenditure before the Eighth Plan (1992 to 1997), astonishingly, the judiciary did not form a part of the planned expenditure at all! From the Ninth Plan (1997 to 2002), the planned expenditure for the judiciary became .071 per cent of the total planned expenditure. In the Tenth Plan (2002 to 2007), after much prodding by the apex court, it became the princely figure of .078 per cent, which is an increase not worth mentioning. In the Eleventh Five-Year Plan (2007 to 2012), we laboriously climbed to 0.68 per cent. The Twelfth Five-Year Plan figures are not available.

As per the 2015 figures, the subordinate judiciary works under severe deficiency of 5,018 courtrooms. It also pointed to the shortage of residential accommodation for the subordinate judiciary—that is short of 8,538 quarters or over 40 per cent of the sanctioned strength of judicial officers. According to the report, 41,775 staff positions for subordinate courts were lying vacant, further affecting the functioning of courts.

Consequentially, no rocket science but common sense (and not uncommon nonsense) along with consistency, continuity and a holistic approach is required to address this malaise. First, just as you cannot treat patients without building hospitals and providing medicines, you cannot dispose of cases without having judges. On a war footing, we have to increase the judges per million population ratio, if not to the ideal 50 per million, then at least to a minimum 35 per million. Second, increase the planned expenditure including all grants and all allocations to the judiciary to a minimum aggregate of 3 per cent if not 5 per cent of the Indian budget at the central and each state level. Third, each proposed legislative bill must contain a judicial impact assessment note (as presently it does a financial impact assessment) to indicate the litigation likely to be generated by such legislation. It is frequently forgotten that two of our so-called prized legislations (viz. cheque bouncing section 138 litigation and dowry-related 498 A) are the biggest cloggers of the criminal justice system and despite taking up the maximum space and time, do not provide prompt remedial or healing solutions. In 2017, 60 lakh and 1.10 lakh comprised the arrears on these two subsets alone. Such judicial impact assessment exercises also discipline the flights of fancy of our legislatures in passing laws. Fourth, discipline in the higher judiciary, especially the apex court is equally necessary. Two examples are striking. There are innumerable cases, which are first decided within the apex court, then considered apparently erroneous by another bench, then referred from a two-judge to a three-judge bench, then further to a five-judge bench, occasionally further to a seven-judge bench, yielding finality in the law after years, even decades. All this within the same Supreme Court and relating to the referral of the very same single judgement! Meanwhile, in the years taken to do this, thousands of cases at the 24 high courts in our federal system and maybe lakhs in the lower courts are decided in diverse and different ways on the different legal principles, generating humongous uncertainty, indeed chaos. This is settled, years later, if at all, when the apex court finally irons out the contradictions. Classic examples include the Bhatia judgement settled years later in the Balco case in the realm of international commercial arbitration and the chaos created in the field of land acquisition recently by the divergence of opinions between different benches of the Supreme Court. Many other examples abound. Fifth, limiting oral arguments by time limits, subject to the condition that a good ten-page summary note is filed well in advance and read by judges who then only cross-examine counsel. Guilty on this count is both the Bar and the Bench: the former does not put in the extra effort required to file a sharp, precise note of written arguments and the latter is used to a culture of oral arguments and does not read fully nor come fully prepared to put penetrating questions. Written submissions in our legal culture are supplements to full oral arguments and not their substitute, which they should be. Lawyers do not draft them as such, and judges do not read them as such and do not come prepared to merely cross-examine counsel. Sixth, applying elementary case management techniques like track-wise disposal, viz. allocating 10 years or older cases to a particular group of judges, 5–10 years to another track of judges and so on. Seventh, roster allocation in districts where criminal cases are twice the number of civil ones must allocate twice the number of judges to criminal law as to civil whereas other districts where the opposite may be true must apply opposite techniques. You are rightly surprised that such practices, taken for granted by efficient corporates, are not necessarily established paradigms of case management in our courts. That is why, as someone said, just like armed forces reform is too serious to be left to generals, law reform is too serious to be left to lawyers and judges, since it involves an incestuous ambiance and needs external management professionals.

In a nutshell, therefore, we have to reverse and reinvent the caustic lament of a shaayar (poet) for the legal judicial system when he said Dopahar Tak bik gaya bazaar ka har ek jhoot, aur main ek sach ko lekar shaam tak baitha raha.

Eighth, Justice M. J. Rao, then heading the Law Commission, estimated in 2005 that the total investment required for clearing the backlog of all high courts and subordinate courts collectively would be only around ₹2,100 crore and the running annual expenditure would be about ₹875 crore per annum for 5 years. It appears to be a ridiculously low price to pay for the proper administration of justice.

Ninth, we have hardly ever used the constitutional power to have a large additional number of ad hoc judges under Article 224A of the constitution to work for 5 years or more at the high court level till the backlog is cleared. This arrangement provides a ready-made pool of known judicial talent, tried and tested. Even the retired judges of the same high court or judges from other high courts can be appointed under this never-used provision at the high court level.

Alternative or Consensual Dispute Resolution (ADR or CDR) outside the traditional justice system, by mediation, conciliation and other methods, has also received considerable impetus and dynamism by the setting up of an apex court committee to create modules of implementation at different high courts, in addition to the already successful Lok Adalats (people’s courts). The initial movement on this front was a little slow but with the central government having recently sanctioned a fairly handsome budget, the process of training mediators has considerably picked up. The plan is modelled on the existing pilot project successfully functioning for some time at Delhi (I had the privilege of serving on the apex court committee on this subject and wrote the report in the late 1990s, which led to the enactment of Section 89 in our Civil Procedure Code (CPC) that provides for a menu of ADR options).

Trained mediators who are district judges have disposed of a fair number of cases and high court judges and even the Supreme Court frequently refers several matters to them. A similar pilot has been functioning successfully at Gujarat. What is necessary is to tie them all into a national, uniform, all India plan of court annexed ADR at each level of the court hierarchy. This is the preventive part of arrears management, as opposed to the curative element. Lok Adalats are people’s courts and have been quantitatively the most successful form of ADR. They involve a sitting judge with a couple of mediators doing a certain amount of ad hoc justice for certain specified categories of cases such as land acquisition compensation claims, motor vehicles accident claims, dowry or marital disputes and several other smaller petty claims. The Lok Adalat technique is obviously limited in its application to a few subject matter themes like this. In the past 28 years, since the creation of Lok Adalats in 1982, they have disposed of approximately 8.25 crore cases as of 2015. Although their scope and effect is a limited qua subject matter, there is no doubt that within these limited categories, they have been remarkably successful.

Prosecutions in India result in some truly piquant and highly avoidable situations, adding unnecessarily to the backlog of pending cases. In dowry demand cases under the notorious section 498A of the Penal Code, after an acrimonious and exhaustive battle, when both warring spouses decide to put an end to criminal cases—as frequently spouses desire to do after exhausting themselves with reciprocal harassment—they find that they cannot withdraw the FIR/complaint, even by mutual consent. Instead, one of them has to file a quashing petition to the high court to quash the complaint. Not only does this generate additional litigation solely for the purpose of ending litigation, but the outcome is frequently negative because the legal tests for quashing are different and stricter and no one can be sure of the outcome in the High Court. Fortunately, one part of this problem has been addressed with the recent substantive amendments introducing plea bargaining.

Fast track courts (FTCs)—1,562 of them at the moment—are doing good work in certain designated subjects. In the first 5 years of their creation (2000–2005), though only 1,380 FTCs functioned, they have disposed of 32.34 lakh cases, although they have received 38.90 lakh cases on reference. It leaves a pendency of 6.56 lakh cases (2017 note of Law Ministry).

Tenth, since disposals at all the three levels—apex court, high courts and district courts—are marginally behind average institutions per year (not strictly accurate, since high courts fall behind by about 150,000 cases per year and trial courts by over 10 lakh per year), it is critical to develop additional second tracks of disposal only to attack the pending arrears while the current filings are tackled by the existing infrastructure. Unless such second tracks are developed, the arrears problem will become a perpetual vortex and irreversible—indeed, it will keep increasing each year.

Eleventh, the Gram Nyayalaya (GN) Act is another significant piece of legislation operational in India from 2 October 2009, which seeks to create so-called village level courts. They deal with civil and criminal cases—on the criminal side, their jurisdiction is limited to compoundable offences or to those with a maximum punishment of one year, whereas on the civil side their jurisdiction is the same as that of the lowest level civil judge. Whenever these GNs receive cases in excess of these jurisdictional limits, they shall refer it to the appropriate civil or criminal court in the normal judicial hierarchy. In civil matters, the GNs are required to act on a day-to-day basis and after mandatorily trying mediation/conciliation procedures at the inception, are required to dispose of the case by adjudication within 90 days. On the criminal side, they will follow the summary procedure of the Criminal Procedure Code (CrPC) and on the civil side, the analogy of the principles of the CPC, without being bound by either.

This new legislation has great potential to deal with small and petty village-/block-level civil and criminal disputes at the bottom of the heap in rural India. While their potential is enormous and must be pursued and realised doggedly, the initial start has been somewhat slow and hesitant. That is because the scheme envisages that the Central government will bear the nonrecurring running expenditure subject to a ceiling of ₹18 lakh per court and the one-time nonrecurring establishment component will also be equally shared with the state government. It is intended to establish approximately 5,000 GNs across the country. Consequently, states which are keen to start GNs, have nevertheless delayed the exercise since they have told the Central government, in an example of obstructive federalism, that since it is a Central legislation, the state should be given the full cost by the Central government. Hence, as of 10 March 2015, approximately only 194 GNs are functioning against a target of 5,000 such courts.

The nature and extent of judicial corruption is, in my opinion, highly exaggerated and the consequence of considerable casual talk, press sensationalism and pure speculation. However, it cannot be denied that the extent and scope has undoubtedly increased significantly since the 1960s and 1970s. What, in those days, was talked about in hushed whispers and with incredulity even regarding the lower judiciary is now the subject of open gossip and sometimes serious allegation involving the higher judiciary.

Twelfth, impeachment has been available as a constitutional penalty for errant judges from the inception, it is obviously too slow and cumbersome. The only known two examples of its use against a Supreme Court judge in 1993 and the last CJI in 2018, ended in failure. Over the years, demand has grown for creation of intermediate penal remedies without compromising judicial independence. Consensus had finally centred around The Judicial Standards and Accountability Bill, 2010 and I had the privilege of chairing the Parliamentary Standing Committee on Law and Justice when we recommended the passage of Bill in 2011. Unfortunately, it has still not been passed. If passed, it would have been a better and more efficacious calibrated remedy than the sole Brahamasatra and extreme remedy of impeachment.

The Bill had provided for: (a) laying down judicial standards, (b) fixing the accountability of judges, and (c) establishing mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or high courts. It also provides a mechanism for the removal of judges. The Bill requires judges to practise universally accepted values of judicial life. These include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters, which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities. Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter office. Every judge will also have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

The Bill establishes two authorities to investigate complaints against judges: National Judicial Oversight Committee and the Scrutiny Panel. If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved necessitates removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the President to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament. A motion for removal of a judge can also be introduced in Parliament by MPs. In such a case, the Speaker or the Chairman can either admit the notice or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry. The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

It is important to remember that our Committee recommendations took great care and exercised great caution to ensure that all these inquiries and investigations are done by committees manned almost entirely only by the judicial family, with the additional provision for involvement of the AG and an eminent jurist nominated by the rest of the Committee.

Media: Most Unaccountable and Least Prone to Reform from Within

The fourth estate—the press—along with the third (judicial) organ is believed by many to be the toast of the season in India. Democracy in India appears to be going through a stage when it is ruled by the press and the judiciary. The press is one of the largest, most fiercely independent, vibrant and active on this planet. It has approximately 398 dailies, 515 TV channels and 415 million peak time viewers of the visual media. As of 31 March 2016, there were over 100,000 newspaper publications registered with the Registrar of Newspapers for India. India has the second-largest newspaper market in the world, with over 100 million copies of newspapers sold per day as of 2013. Hindi-language newspapers have by far the largest circulation, but there are publications produced in each of the 22 scheduled languages of India and in many of the other languages spoken throughout the country. There are currently 872 permitted private satellite television channels in India as of September 2018 and 690 million peak time viewers of the visual media.

The press sets the agenda, initiates the debate, becomes an active participant and is frequently the investigator, prosecutor and the judge. It functions virtually without any effective accountability. It is hated, criticised, castigated but, at the end of the day, acknowledged as a bastion of liberty and of a pulsating democracy.

A few facets relating to the fourth estate need to be emphasised. First, as in so many other sectors and spheres, the press suffers from the ‘many Indias in one’ syndrome. There is a wide divergence between the quality and content of both the print and the visual media. Second, the highest standards of journalism co-exist with several forms of yellow journalism. Third, the print media continues to exercise greater restraint and caution, whereas the multiplicity of visual media and their no-holds-barred competition for eyeballs compel them to indulge in less sense and much more sensationalism. Logic and reason are clearly casualties on television debates and are largely substituted by passion and whipping of emotion. Fourth, and most important, the law of defamation in India, in stark contrast to the UK, is no antidote to irresponsible journalism. The process is agonizingly slow and since not even medium-term relief is likely, few, if any, venture to invoke this remedy even when they are seriously aggrieved as no-time bound conclusion is visible to them. The saying that ‘the real defamation begins after the filing of the suit’ applies appositely in the Indian context. Aggressive journalists, maverick politicians and diverse other attention-grabbers and seekers desperately provoke public figures and others to sue them, as they know that this provides them glory and a place under the sun without any tangible relief to the aggrieved plaintiff. Fifth, the statutory institution of the Press Council of India borrowed from Britain has done no better for the reason that the premise on which the British designed such an institution has never existed in several other countries, including India. The principle underlying not only institutions like the Press Council of India but also bodies like the Medical Council or the Bar Council is the premise of an independent, fair, objective and expeditious peer evaluation and peer judgment. Each of these three institutions has failed precisely because peers have abdicated objectivity and independence in favour of an incestuous and conspiratorial approach designed to promote vested interests, protect the guilty and frustrate the complainant.

Whether professionals like it or not, decades of decadence in these bodies can only be reformed by external policing and regulation. In India, some of it has started by reform of the Medical Council of India, after its Chairman was arrested for rampant corruption. But, since lawyers consider themselves far more powerful than doctors and the press considers itself more powerful than the latter two combined, both the Bar Council and the Press Council of India have stoutly resisted all winds of change.

Sixth, speaking of the visual media alone and not the print media, the time has come to reform what I would like to refer to as ‘tyranny of the Television Rating Point (TRP)’. The TRP concept virtually amounts to a gigantic fraud since it involves location of a sample number of measuring meters in a very small number of selected households across the length and breadth of India, supposed to have been chosen randomly. These measuring meters are supposed to be an accurate barometer of popularity of a particular TV programme at a particular hour of the day. This simple mechanism is based upon the multibillion television, entertainment and news channel industry of India. Such spurious TRP ratings determine the nature and volume of sponsorship. The advertising revenue, in turn, dictates the quality and content of programmes, which the viewer is supposed to like and demand. In this spurious exercise, it is forgotten that TRP meters do not measure even an infinitesimal fraction of the real size of public demand in a gigantic country like India. I have also somewhere called it an exercise fit to be rewarded by a Nobel Prize for miniaturisation.

Seventh, the Broadcasting Bill, struggling to be born for the last 20 years, is urgently required so as to bring out true disclosures of conflict of interest between the newspaper/channel owner’s business interests on the one hand, and the paper or channel on the other hand. An incestuous silence by all stakeholders with vested interests has effectively buried this salutary initiative.

Last, for the most diverse country in the world, India is peculiarly unfit for such sample surveys, especially opinion polls, which are bound to give highly distorted and misleading pictures of viewer preference. Many are sponsored exercises and the best are highly misleading. The real tragedy is that the substantive content of the visual media rests upon such treacherous quick sands.

Election Commission: Must Guard Against Politicisation

A constitutionally created institution with no notable heritage and lineage, which has emerged as a scintillating pillar of vibrant democracy in India is the EC. It has outstripped and outshone the grandest conception of its creators. Since the 2009 general elections, all counting is done by EVMs. In addition to national elections, the EC conducts approximately three to four state elections every year. Such provincial elections, by themselves, may exceed the logistics of an election for Europe as a whole.

The EC is merely a three-member commission, but it is allowed to requisition an army of civil servants and security personnel under temporarily granted overriding power for a limited period, before and after the election. They keep a hawk’s eye on electoral malpractice and, especially over the last few years, have struck a sense of fear among candidates choosing to play close to the line. The EC combines large measures of administrative duties along with quasi-judicial functions under which they hear and decide cases of a specified category involving electoral malpractice by candidates. So high is the regard for its competence and expertise that there is a huge demand for the Commission’s services globally. If they had the time and inclination, the Commission could earn a huge revenue by hiring out their services to innumerable countries who are waiting anxiously in queue to utilise their services for elections in those countries.

Since free and fair elections are the essence of democracy (and since both are a basic and fundamental part of the basic structure of the Indian Constitution), there can hardly be a more vital institutional pillar of democracy than the EC of India. However, electoral reforms are frequently delayed by delayed decision-making and lack of political consensus.

First, as summarised earlier, there is a pressing urgency to define a clear test of criminality on which criterion a candidate may be disqualified—an issue on which the EC has unsuccessfully been demanding legislation for a considerable period. I have already suggested framing of charges in a small select list of grave and heinous crimes as the correct test.

Second, the EC of India needs a far larger staff, more research personnel and support systems to deal with the emerging scourge of ‘paid news’. Paid news involves the use of press space (both print and visual) to promote and project candidates during elections. Since each Parliamentary candidate cannot exceed more than ₹40 lakh as expenditure incurred for his election and a State Assembly candidate cannot exceed ₹16 lakh, a convenient methodology has been devised, obviously in collusion with the press, whereby a large volume of publications about the candidate appear in the media, masquerading as news items whereas, in fact, they are the result of media space purchased illegally by paying media barons in unaccounted monies. This is more rampant in the regional than the national press. Third, a proposal for state funding of elections has had frequent currency and reiteration but has rightly been deferred since it requires far greater analysis and tailoring to Indian conditions before being efficaciously capable of delivering the results that it is intended to achieve. The core dilemma is as to whether, on the one hand, state funding adds to the available resources of the candidates, legal and illegal, while putting ordinary tax payers under additional strain and, on the other hand, does not in any manner diminish the use of unaccounted money through the parallel economy for funding elections. If the state funding of elections could substitute illegal expenditure on elections through use of unaccounted monies, it would be a radical and highly desirable reform but if the former were to be merely an additional stream of funding, it would amount to rewarding illegality.

Fourth, electoral reforms are something, which is at the very heart of the Indian liberal democratic system. It is also something, which is not that difficult or insuperable provided you have a reasonable degree of will power. Take, for example, the adjudication of election petitions. The term of any elected person is normally 5 years. There is a statutory provision that you must decide an election petition in 6 months. This was enacted because if you decide beyond 5 years, then the person whose election you are attacking has completed his term and enjoyed the fruits of his office. There are very few election petitions, possibly none in the country, which finish in this timeframe. Appeals from preliminary objections consume most of the time. One solution could be to have special FTCs only for election matters separate from the normal judiciary. That has now been done for trial of certain criminal cases against the political class but that is still work in progress and does not address election petitions at all. Another is to amend election law, which is hyper-technical and allows interim challenges up to the Supreme Court on every preliminary objection, rendering final trial virtually impossible.

Fifth, simple loopholes need to be plugged. Despite stringent expenditure limits for individual MP and MLA contests, there is strangely no limit on how much one political party can spend in an election. Obscene levels of expenditure in, for example, UP and Karnataka, ensure a non-level playing field and render a mockery of candidates’ expenditure limits. Recently, we have represented to the EC to make changes in this regard.

Sixth, although it might sound a bit drastic in the Indian context and most political parties will not agree, we should progressively empower the EC to recognise or not to recognise a party according to: (a) the periodicity and the regularity of its intra-party elections and (b) according to the filing of a certain requisite format of returns with suitable declarations. It will also enable the cutting down of over fifty-five parties at last count, many of whom are non-serious names on paper and wholly beyond the pale of accountability.

Seventh, several other smaller and easier reforms should be undertaken. To strengthen the independence of the EC, its expenditure should be charged on the Consolidated Fund of India, as is true of the CAG, the UPSC and the SC. It should have an independent secretariat and service cadre, as do the two Houses of Parliament and the higher judiciary. Electoral rolls must be seriously and ruthlessly corrected and updated, without political partisanship, because duplications, deletions and false entries undermine the foundations of our democracy. I did three cases of MP, Rajasthan and Telangana in the SC where 24 lakhs of duplications have been admitted by the EC in respect of MP while the petitioners allege 35 lakhs more. The same name and identity have sometimes been found 101 times, spread over innumerable assembly constituencies. This is really the EC’s failure and it has to shed all institutional ego to rectify such failures. It is also a good suggestion that common electoral rolls should govern not only national and state, but also municipal and eventually Panchayat elections. While postal ballots are acceptable, proxy voting or email voting by NRIs is not, in view of the serious doubts regarding its credibility.

Eighth, the issue of EVMs is a vexed one. One realises that there cannot be a wholescale reversion to physical balloting, though that is the ideal many parties aspire for. But if so much doubt and distrust surround them, the least the EC should do is 100 per cent cross-checking and verification with the paper trail now mandated with each machine. All that such 100 per cent verification will mean is a little delay of 2 or 3 days in declaration of result. That is a small price to pay. Also, it must not be forgotten that the number of nations using EVMs is hardly two or three and none anywhere resembles the scale and use in India. Several countries have abandoned EVMs as untrustworthy after years of trying, including the USA, Holland, Germany, etc. Since this cuts at the base of democracy, the EC should announce 100 per cent verification with immediate effect, including for the 2019 elections.

Public Participation: An Over Romanticised Potentially Dangerous Notion

Some exciting paradigms and experiments of public participation in 2009 in India involving the Lokpal movement raise important questions not only regarding strengthening democracy but regarding the violation of age-old, established constitutional principles and precepts. Public participation is the essence of democracy itself, but representative democracy works through elected representatives. Issues of corruption and alleged misgovernance had, from 2009 onwards, led to different kinds of peoples’ movements, which had turned the traditional notion of representative governance on its head. The campaign by a group of civil society activists had successfully insisted that they be a part of legislative drafting, an activity always assumed to be the sole prerogative of the concerned ministry in a parliamentary form of governance. The so-called Joint Drafting Committee of the Government of India and civil society activists on the Lokpal Bill led to frequent eruptions of dissent as civil society activists asserted a moral right to design the legislation perceived by them to promote public good.

The natural constitutional question arises: Once the Joint Drafting Committee sends the Bill to the Cabinet, to what extent can the latter alter the proposal as received? Normally, such a question would be quaint, indeed, laughable, since the Cabinet’s discretion and plenary power to finalise legislation is unquestionable and cannot be subjected to any veto right by an external civil society activists’ body. But so strong and vocal is the activists’ stand that we are in grave danger of establishing yet another wrong constitutional precedent.

What happens if the aforesaid two hurdles of the Joint Drafting Committee and the Cabinet are successfully crossed, but the Houses of Parliament decide to modify the Bill? Again, parliamentary sovereignty in this regard is unquestionable, but if the civil society activists take to the streets because of what they perceive to be an unauthorised amendment or dilution by Parliament of the rights of the people, a peculiar and unprecedented constitutional crisis would arise.

The dilemma of such issues raised is ironic since many believe that actions in the name of representative democracy are eroding representative democracy itself. They are bypassing the elected representatives of the people.

Such public participation presupposes a high degree of uniformity amidst civil society regarding both content and consequence as also mode and methodology of public participation. It also presupposes a fairly high degree of awareness and education and the ability to sustain mass movements of public participation on the basis of legitimately acquired means and resources.

In a nutshell, it is vital that while avenues and modalities of public participation have to be encouraged and enhanced, the government of the day has to stoutly resist all forms of blackmail or transfer of sovereign power to unelected or self-appointed guardians of civil society.

Public participation has been one of the greatest bulwarks of democracy because, in India, it is supported and strengthened by several ancillary support systems, chief among them being the over-active and vibrant Right to Information Act. It has created a mini-revolution in thought, deed and action for the average common man.

Comptroller and Auditor General: Ban All Post-retirement Appointments

The CAG is the audit watchdog of the nation, which has the statutory power to investigate government departments and public corporations.

The Indian CAG has a longer history and lineage than its constitutional recognition in 1950 as it completed 150 years in 2010, having been an operational institution in India since the 1860s. An audit report signifies parliamentary control over the receipts and expenditure of the government and acts as a vigilant form of check and control on the executive.

Despite all the cacophony, criticism and undesirably high degree of sensationalism in the press in regard to this institution in the recent past in India, its role as an institutional pillar of democracy cannot be underestimated. The office of the CAG remains a vital input for transparent and effective democracy. Since the CAG is subject to both parliamentary scrutiny and judicial review, it remains as an external watchdog of great importance although the tendency to sensationalise its preliminary or interim reports, which are statutorily subject to finalisation after detailed examination and on receipts of objections, must be resisted by the media.

Unfortunately, it is equally undeniable that this institution has been progressively politicised. A simple amendment is urgently necessary to immunise and insulate both this and the EC from further politicisation. That is a ban on post tenure appointments of any kind whatsoever, coupled with an extension till age 70. The very simplicity and undeniable efficacy of this simple measure assures me that no political party will bite the bullet on this!

Army: Anonymity Its Best Armour

The world’s third largest army, the Indian army, should not normally be listed as an institutional pillar of democracy at all. I am, nevertheless, mentioning it in conclusion because it is an organ of governance not in the sense in which Parliament and the judiciary can be so described, but because the Indian Army’s consistently hands-off approach, apolitical image and complete professionalism has contributed immensely to the strengthening of the roots of democracy in India.

Just like the British do not think of the army except during turbulent times of external threat or great internal disturbance, Indians have always considered the institution of the army not as a brooding, omnipresent or omniscient entity but instead, as a body quietly, anonymously and seamlessly merging into the backdrop. Political parties, disgruntled citizens or reform activists never turn to the army even during the fiercest dissension with the established government of the day. Civilian control of the army is treated as axiomatic, not so much by law or fiat, but in the psyche of the people.

Indeed, it is an interesting paradox that while the army is turned to in several peace time roles (e.g., serious policing against separatist movements, natural disaster situations, extremely large scale communal riots and so on) and is seen as a saviour and a protector, it is never thought of or turned to in any political, social or economic crisis even of the most serious kind. As in the USA, UK and several other European countries and also in India, this is one of the most important underpinnings of democracy. Other countries have not been so lucky because it is always the first transgression, which is the most difficult. Unfortunately, for several other nascent democracies, that first crossing of the civilian line by the army occurs too early in their evolution as an independent nation, which, in turn, thwarts democracy at the threshold.

Here again, unfortunately, petty and short-sighted politics has partially trumped principle. The manner in which recent heads of the army, including past and even current ones, have subjected themselves to political issues is most regrettable. Surgical strikes were not born after 2014 nor will they end in 2019, but brazen use of these events for politics is shameful and condemnable. Its mal-effects can be long-term and dangerous. Similarly, former chiefs speaking repeatedly on political facets of JK are highly avoidable phenomena; also the practice of army chiefs making much publicised political transfers after retirement is a highly avoidable exercise.

The strength of institutions such as the army, CAG and the EC is and must remain their anonymity. Their very namelessness and facelessness is the best insurance policy for India. They are and should remain a brooding, omnipresent and omniscient presence, comforting us by their mere existence and endeavour to be recognised only by their deeds while being neither seen nor heard, like erstwhile pardanashin ladies. Each time a political party, irrespective of political colour, appoints a retired CAG to a post-retirement sinecure, or draws a retired CEC into politics, or lures a retired Chief of Army Staff into the loaves and fishes of ministerial office, it does a disservice to India and devalues and debases the spine of India, viz., our precious institutions. Irrespective of political colour, let all political parties forge a healthy convention to deny such participation to ex-holders of such offices if we are to make Indian democracy shine and glow.

Conclusion

Having travelled this long distance over a large number of foundations, principles, concepts, pillars and persons, all of whom have contributed in a unique mix to make Indian democracy strong and vibrant, it would be unfair to single out any particular factor, although I have tried to indicate some degree of prioritisation amongst them. I share the view that India’s amazing diversity is perhaps its best insurance against degeneration of democracy or institutionalisation of dictatorship. To that must necessarily be added the intrinsic nature of India and of Indians, viz., being absorbent and highly argumentative. It is heartening to note that both desirable additions (e.g., the revolutionary Right to Information Act, which is predicted, in years to come, to transform India momentously) as also undesirable distortions (e.g., sensationalism and excessive self-criticism of institutions and people) contribute to enhancement of democracy (even if too much for some). Democracy has many miles to walk and many promises to keep. If it cannot be fairly castigated as an imperfect democracy, it is certainly also nowhere near being a perfect or near perfect democracy. It is difficult to quantitatively calibrate whether we have covered half or more than 75 per cent of the journey from imperfection to perfection. We have not achieved, for example, the more capacious concept of democracy beyond the narrower view of seeing democracy exclusively in terms of public balloting and not as ‘the exercise of public reason’, that is, the larger concept of providing opportunities for citizens to participate in political discussion and, more importantly, to informed public choices in methods that transcend the ballot box. Personally, I have no doubt that we are well past the midway mark in the journey and if lessons are to be learnt from the evolution of developed democracies, I hope equally, no doubt, that we will get there in the fairly proximate future. But the story has never been only about the destination or the result. It has been, as much, if not more, about the journey and that has undoubtedly been exciting and unusual.

Each one of us owes it not only to ourselves but also to this great federal nation to make it that entity on the world stage which it truly deserves to be. Some may do so by pulverising an aspect of governance to highlight the need for urgent improvement; others may underline contradictions, to call for future synergy and harmony; still others may harken back to a glorious past on a particular issue, to restore it to its rightful place in our future; many may point out simple, small things not taken care of to make a better India; and still others may seek to attack status quoist mindsets, to push India with greater momentum towards its true potential. The object, the intent, the approach and the technique—be it critical, laudatory, hortatory, cynical, analytical, argumentative or comparative—is always the same: to nudge this great country closer and closer to the India of our dreams. It is true that frequently there are roadblocks, pessimisms and the nature of the problem appears too large, too complicated and impossible to solve while you appear a small group or in a minority of one. That is when Tagore reminds you to Ekla Chalo. That is when Iqbal exhorts: Main akela hi chala tha, janibe manzil, log aate rahe aur kaarwaan ban gaya. The alternative would otherwise be the nemesis we are destined to suffer and that too Iqbal prophesied: ek khwab aisa dekha tha, ta umr neend aayi; lamhon ne khata ki thi, sadiyon ne sazaaa payee.