Towards an Executive coup

We, the country, are heading towards an Executive coup as part of the agenda of weakening the democracy’s checks and balances apparatus—an attempt to forestall the operations of the accountability machinery.

Of the three mutually independent, controlling wings of the state—Executive, Legislative, and Judiciary—the last two are being systemically and inventively weakened and undermined. Incidental to this process, the freedom of the press, public opinion, and civil liberty forums are also subject to restrictions and selective purchase. This includes disallowing funds, clamping down on stalwarts, and jailing them too (the death of jailed and vilified social activist Stan Swamy is just one example).

It is vigorously propagated that the Executive, by virtue of being elected (albeit with a minority of polled votes and getting majority support in Parliament/legislatures) has all the wisdom to be right on every aspect, be it bias or proclivity, decisions and laws, allocations made, or actions undertaken. The intended control of the executive by the legislature is in jeopardy due to the absence of debates and interpellations in Parliament, or in press conferences. Monologues, however frequent, cannot be the same as a press conference, which ensures accountability.

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Legislators have all become government “yes men” as the desire to concentrate and centralise executive power increases; they are co-opted as sinecure chiefs of officially established corporations. They have lost the independence to oversee and check the commissions and omissions of the government. The legislature and the government are virtually indistinguishable. This is a major threat to the system of checks and balances. There is a sort of devouring of the legislative branch by the Executive. Debates are contrived to be nullified; pandemonium and counter-pandemonium are staged by partisan members.

The office of the Speaker is misused to selectively deny opportunities for members to raise issues of public importance. Thus, a crippled Parliament is used to pass laws, transgressing the deliberative committee system. In the absence of transparency, accountability, and independent surveys and studies, anything becomes true. Alternative truths flourish, and an informed state of the public mind is jeopardised. Claims and announcements are mistaken for achievements. Every celebratory event and foundation stone-laying ceremony becomes an election propaganda speech. There is a tendency to bulldoze the constitutional processes of the legislature, accountability, the free press, and autonomous institutions—a hallmark of an Executive coup.

Momentary developments, a sort of political kite-flying, regarding executive-judicial relations are put in the public domain by the high and mighty in the government. The legislature and Parliament, by virtue of being elected, are sought to be described as having all-encompassing plenary powers. This is contrary to the Constitution’s envisagement and its jurisprudential conventions. Any pronouncement by the high courts and the Supreme Court, in the absence of legislation duly passed and processed, is deemed as operational law. This holds particularly regarding the recommendations and decisions of the Supreme Court collegium and the memorandum of procedure (MoP) deliberating on the appointment of judges.

When ministers vociferously say that judges are appointing themselves and are not elected by the people, there is danger and disrespect to the freedom of the judiciary—a case of an Executive coup. Concerns about the basic structure of the Constitution, famous from the 1973 Kesavananda Bharathi case, are being raised in connection with this Collegium and MoP issue.

Here, can the country accept the position that Parliament can amend any clause or provision in the Constitution, bypassing judicial scrutiny? Can a partisan Parliament assert that the executive has the power to take any decision once it is supported by Parliament and has won the confidence vote? What fate befalls the rule of law?

The Constitution is acknowledged as the skeleton that holds the nation, the state, and the manifold activities of the country’s people together. How can any part of this skeleton be weakened, clipped, or hobbled? The basic structure doctrine is the bedrock principle of the Constitution and is a landmark in the evolution of legal and political principles and jurisprudence.

Different judges in the Kesavananda Bharathi judgement have given different examples of what constitutes the basic structure: the federal and secular character of the Constitution, separation of powers between the Legislative, Executive and Judiciary; the dignity of citizens; the democratic character of our polity; liberty of thought, expression, and belief; faith and worship; equality of opportunity; the welfare state; and an egalitarian society.
A political and constitutional convention is unbreakable and will never tolerate any kind of potential or actual threat to India’s basic structure principles.

(The writer is a former professor at Maharaja’s College, University of Mysore.)