Supreme Court as a sentinel

Speaking at the Indo-US Joint Summer Conference recently, Justice D Y Chandrachud reflected on “protecting fundamental rights in challenging times” and said “The right to life comes alive only when conditions are provided by the State for the full enjoyment of this right. The right to life is not merely about surviving, but it is to live with dignity.” His exhortation should serve as the guiding principle for the State as well as the citizen.

Justice Chandrachud’s address holds up a mirror to the polity, and therefore to the society that we live in and the challenges that we need to respond to. It urges us as citizens, and the Executive as policymakers, to examine ways to address inherent flaws in how we practise democracy from the perspective of the principles enshrined in the Constitution, and to explore how we might strengthen it. The people themselves need to determine the ways in which democratic institutions— local self-government above all — should be redesigned.

We live in a world largely dominated by populist politics; a world that many believe is witnessing a retreat of liberalism in the face of rising nationalism. Populist politics is not just anti-elite politics, or merely a majoritarian politics; in essence, it is about what kind of political discourse is advanced and how people respond to it.

Typically, the discourse is almost always that they — the populist leaders— and they alone represent the silent majority. It is quite simply a non-inclusionary path and constrains democracy. The risks to democracy are not immediately apparent, but it does have two negative consequences: the first is that it enables populists to claim that all other contenders for power do not have the interests of the people at heart. Populist politics is not a disagreement about policies or even about values, which ought to be completely normal in a democracy, indeed even necessary. But populist politicians almost always make the discourse personal, and they make it entirely moral, and that is the pattern that begins to permeate the body politic; and more importantly, gives a fillip to the rank and file amongst the followers.

The second, and less obvious, consequence is that populists will also suggest that anybody who doesn’t agree with their conception of the ‘real’ issues — often of identity and belonging — and therefore also tends not to support them politically, need to answer the question whether they truly belong to the mainstream in the first place.

This often manifests in political engagement that alludes to, through subtle messaging, that already vulnerable communities – migrants, for instance — don’t truly belong here. Increasingly, this is manifesting in various forms — reservation for ‘sons of the soil’, reservations on the basis of ethnicity or caste, domiciliary requirements to access rights-based entitlements, political affiliation or denomination-based policies, and such other walls being raised to divide. A recent example is the 25% reservation of seats for locals in a prestigious law school. This pattern reproduces itself across states. As is expected of the Judiciary, the other two arms of the State— the Legislature and the Executive— must also serve as counter-majoritarian institutions, rather than purveying populist majoritarian policies.

Long story short, populism isn’t about anti-elitism. Any of us can criticise the elites, that does not mean we are right, nor is it in and of itself a risk to democracy. What does pose risks to democratic principles is the tendency to exclude others, undermining not just the rule of law but running counter to the basic principles of liberty, equality and fraternity. And it has real consequences on the ground, as elaborated succinctly by Justice Chandrachud.

One of the lessons that we should perhaps learn is to recognise the political business model of dividing the people, whenever it is deployed -- situations in which at least some citizens feel the choice is stark, and they have to go with one side. Once the political firmament begins to resemble this, we must recognise that we need to strengthen voice and accountability, if we want our democracy to be true.

This isn’t just about individual leaders, it has to do with the architecture of our democracy: the health and state of political parties, and of the media – displaying, by design, an unmistakable lack of democracy and the domination of one or a few individuals that influence outcomes. Look at the most obvious example — the state of the Congress party: the fact that it has morphed into a kind of personality cult, where no such thing as legitimate internal opposition or anything like critical loyalty seems possible anymore. Look closely at media houses, are they democratic?

It is not by default that divisive or exclusionary politics of populism emerges. Nationalism and populist politics are two different phenomena. You can be a nationalist without being anti-pluralist. As citizens, we need to make a distinction between conduct that truly undermines democracy and run-of-the-mill policy or political disagreement. To basically say that anything that a particular government does is, in and of itself, resulting in the retreat of liberalism or shrinking of democracy, only leads to a negative-sum game. The common citizen will likely say: they are damned if they do and damned if they don’t, so I’m not really listening anymore.

Instead, we need to strengthen institutions, especially those that are indispensable to making representative democracy work— political parties and the media— and think about how these institutions might be redesigned, look different, and uphold those immutable standards that help fulfill their role in India’s democratic future. This is not easy. Until then, to paraphrase Justice Chandrachud: the Supreme Court has to act as the sentinel on the qui vive and respond to the call of constitutional conscience…to address the challenges of the 21st century, ranging from the pandemic to the rise of intolerance, features that we find across the world.

(The writer is Director, Public Affairs Centre)