History has curious contradictions. Sometimes, constitutions emerge after long struggles or revolutions. But the same constitutions could be damaged by way of their own creations, namely elections and their after-effects. India’s fundamental law was, in essence, the manifestation of the freedom movement. Ironically, decades after its first election in 1952, the nation is now labelled an electoral autocracy by the V-Dem institute in Sweden. The US-based Freedom House recently said in its report that India is no longer a free democracy but only “partly free”. Scholar Tarunabh Khaitan says that along with countries like Poland, Hungary, Turkey, Brazil, South Africa and Israel, we are also under a process of “democratic deconsolidation”. While exploring the “executive aggrandisement and party-state fusion in India”, Khaitan finds the saga of “killing a Constitution with a thousand cuts”.
The data given by the National Crime Records Bureau (NCRB) shows that 93 cases of sedition were filed in 2019 whereas in 2016, the total number of such cases was only 35. Again, there were 1,226 cases under the Unlawful Activities (Prevention) Act (UAPA) filed in 2019. In 2020, the number of such cases remained alarming. Kunal Purohit, in a report on an online platform, says that six cases alleging sedition were registered during the farm protests, 25 cases during the agitations against the CAA, 22 after the Hathras gangrape and 27 after the Pulwama attack. Purohit’s report also says that between 2014 and 2020, there was a 28% increase in the number of sedition cases registered every year.
The nation’s freedom index is no longer a matter of pride or pleasure. One could be incarcerated for an innocent tweet or an intimate personal affection or even an unspoken joke. Constitutional morality is under immense threat. The formal and informal institutions face tremendous challenges from the power centres.It is at this juncture that elections are now soon to take place in the five states. The political histrionics on the visual media, with their unbearable sensationalism round the clock, try to reduce the electoral process into another game of numbers with theatrics. Populism instead of constitutionalism has emerged as the hallmark of elections in the recent past. Many of the political leaders were more passionate about freebies and tall promises. Growing scales of unfreedom are not a major electoral issue in the country. Very few are concerned about Disha Ravi, Anand Teltumbde or Sudha Bharadwaj on their walk to the polling booth. This reflects the poor quality of our democracy.
In the past, pleas for liberty and withdrawal of draconian laws were not alien to the electoral agenda. The general election immediately after the Emergency (1975-77) was a classic illustration of the people embracing constitutionalism in the electoral process. The anti-Emergency movement revitalised India’s faith in the Constitution. Thereafter, even in 2004, based on an electoral promise, the Congress-led government had to recall a stringent law with a notorious track record of human rights violations: the Prevention of Terrorism Act (POTA).
The present electoral landscape does not bode well. Not only the model code of conduct of the Election Commission, even the statutory prescriptions are often breached during electioneering. There is scant regard to prohibition against canvassing voters in the name of race, religion, community or language. Manjari Katju says that the 2019 elections saw “unprecedented use of communal, abusive and hateful rhetoric by political parties”. Political parties are privileged to make all kinds of promises. The Supreme Court in Subramaniam Balaji’s case (2013) held that such promises cannot be termed as corrupt practice, falling within the ambit of Section 123 of the Representation of People Act, 1951.But the court noted that such offers hampered the very idea of free and fair elections and therefore directed the Election Commission to frame appropriate guidelines with respect to the manifestos. In 2015, the top court turned down the plea to command the political parties to fulfil the electoral promises.
In the context of the upcoming Assembly elections, there is some rhetoric of good governance, rule of law and fight against corruption. At times, there are discourses over the real issues of poverty, unemployment and basic amenities. Strategy for guaranteed annual financial assistance and incentives to the farmers are good gestures. However, the political process during unjust situations would call for stricter scrutiny in terms of democratic percepts. Hard times demand greater oppositional radicalism.
Decades ago, scholar Granville Austin opined: “The [Indian] Constitution has been a success… because there have been no direct attacks on it or on the institutions it created, and because the colonial experience, the leadership, the mass party and the bureaucracy have provided a favourable constitutional environment” (‘The Indian Constitution: Cornerstone of a Nation’). This is no longer the case. The real challenge is, therefore, to redefine and reinvent elections as a means to rejuvenate the Constitution. Elections should be a periodical means of public education. Political parties too are bound by the everydayness of the constitutional ethos as imagined by the Supreme Court in the famous S R Bommai judgment (1994). Perhaps, in the realm of political reforms, one can only be “a pessimist because of intelligence, but an optimist because of will”, as famously put by Italian philosopher Antonio Gramsci.
KALEESWARAM RAJ
(kaleeswaramraj@gmail.com)
(Tweets @KaleeswaramR)