The Executive Unbound

WHEN NARENDRA MODI became Prime Minister in 2014 after his party won over half of all Lok Sabha seats, a contradiction of sorts awaited him: If he had a powerful majority in the Lower House of Parliament, the apparatus of governance that he inherited—technically described as the executive—was hemmed in from various sides by other institutions like the judiciary and practices that had led to a rusting of its authority over time.

He was to run into this time and again. In March 2016, when his Government at the Centre recommended the dismissal of the Harish Rawat government in Uttarakhand, the decision was overturned by the High Court at Nainital. Large swathes of governance, ranging from environmental policy all the way to emergency measures (such as the imposition of Article 356 in case of breakdown of Constitutional machinery in states), that were once the preserve of the executive were now subject to judicial scrutiny, and in some cases, even supervision. There is little doubt that these changes were the result of institutional evolution over many decades, but the net result was that this left India’s executive a pale shadow of what it was when past prime ministers like Jawaharlal Nehru and Indira Gandhi presided over it.

After four years in power, Modi presides over a government that has asserted the primacy of the executive in a manner that has not been seen in India for a long time. Much of this is sensationally described as a loss of judicial independence, or, more morbidly, as a threat to democracy. But when viewed against the canvas of Independent India’s history, Modi is only returning to what was the institutional norm.

In theory, the executive wing always has the primary role in formulating and implementing policy for the simple reason that it is the best equipped part of the state to react to ever-changing economic and political realities. In India’s case, these challenges are formidable. The country is located in one of the most challenging geopolitical environments in the world. Internally, managing a vast population across a diverse country requires quick action on almost a daily basis. In contrast, the judiciary is an institution that is designed to cast a backward gaze over actions that have already been taken by a government to see if they violate any law or are unfair. Instead, slowly over time, the judiciary had come close to engaging in ‘judicial creation of law’—a forward-looking task that belongs exclusively to Parliament and state legislatures. Over and above that, it also intervenes in policy matters that were once the sole domain of the Government. None of this is ‘illegal’, but it has led to a strange imbalance in the country’s institutional framework.

In the last 15 years, the whittling down of executive and legislative authority has taken an altogether pernicious hue. In 2004, the creation of the National Advisory Council (NAC) was perhaps unique in this respect. For the first time, the design of important laws—including those related to food security and an employment guarantee—was done outside Parliament. To be sure, they were debated in Parliament and these laws bear the stamp of its approval, but something vital was lost: in any parliamentary democracy, the Government moves legislation and Parliament discusses the proposal before it accepts or rejects it. That link was broken with the invention of the NAC. It would not be a stretch to say that these laws were hustled through Parliament. An even more dangerous idea was floated at that time, that of ‘pre-legislative’ scrutiny, something that would have reduced the role of Parliament even further.

At the same time, and in parallel, a different kind of politics came to dominate Delhi. Ambitious and highly educated persons who could not break through the barriers of party politics (or probably did not want to undergo the rough and tumble of it) found an alternate way of gaining political influence. This was in the interstices of the established institutions. As an influential lawyer, for example, one could engage in the work of securing ‘rights’ over and above those defined in the Constitution. On paper, these ‘new rights’ are merely elaborations of existing ones, but in practice these are de novo rights that were never debated in the Constituent Assembly (or in any session of Parliament since). The right to privacy is one such, something that at one point clashed with the Government’s plan to issue unique identification numbers to all—the Aadhaar plan.

It is a matter of chance that these issues came to a head when Modi was Prime Minister. But on another plane, the Government’s resolve to assert itself is something new. It is made of two parts: as a leader, Modi is firm and decisive in the ideas and policies he pursues; in addition, this resolve is backed by a strong majority in the Lok Sabha. The combination—one that has not been seen since Prime Minister Indira Gandhi—is itself a complex product of the two parts. Well after he won a commanding majority in 2014, most commentators and analysts said Modi’s win was a fluke, a result of the corrupt and bumbling rule of the earlier UPA. The claim was that it was reactive in essence, and neither positive nor substantive as a mandate in its own right.

THE STRING OF victories in state Assembly elections from Maharashtra in October 2014 to Karnataka on May 15th puts all this in a different light. Modi’s strong leadership ensures electoral success, which in turn further empowers him in government in a way that is yet to be understood fully. What is clear is that in India, there is a strong link between executive authority and legislative strength: any weakness in the latter is detrimental to the former. This was abundantly clear during the coalition phase when the sharing of spoils among a council of ministers had a direct correlation with the weakness of a government or its inability to take decisions. The UPA’s infamous policy paralysis is an exemplar of this phenomenon.

In the eyes of a large number of intellectuals and analysts, Modi’s advantage of authority is an alleged danger to democracy, the theory being that when a powerful leader is in command, such a peril is almost automatic. Claims of this type have been analysed by Adrian Vermeule, a professor of constitutional law at Harvard University who calls them ‘tyrannophobia’. The idea of a ‘clash’ between the Government and the judiciary is based largely on this strong leader assumption. What has been ignored in all this is the internal working of the judiciary and how it may have arrived at an understanding of the limits to judicial intervention. Even a mere suggestion along those lines is taken as a defence of the incumbent Chief Justice of India, Dipak Misra.

There is little doubt that both Modi and Misra are strong leaders in their own right, each with a fine understanding of the institutions they lead. But these issues also have an element that is beyond the personalities involved. From roughly 1950, when the case of Kameshwar Singh vs Province of Bihar was decided, to a slew of judgments in the 1970s, the judiciary discovered its innate power in being the final interpreter of the Constitution. This span of roughly 25 years was a time of powerful prime ministers. The year 1975 marks a tipping point when the judiciary gained an upper hand, which it has since maintained through a process of innovation. This phase seems to be coming to a close.

It is not as if judges have gone ‘weak’ and the Prime Minister is overbearing, but something else is at work. Increasingly, among enlightened lawyers as well as judges, there is a recognition that the courts do not have the answers to all problems. The trouble is that while India’s Supreme Court has fashioned a new doctrine to safeguard the Constitution from wanton amendments by Parliament, it has no countervailing theory that could limit or even reverse its own intervention. The US Supreme Court, or at least an influential section of it, has in ‘Originalism’ a doctrine that places a strict limit on judicial interpretation. It is in the absence of such theoretical formulations in India that the role of judges who understand these issues comes to the forefront. Justice Misra is one such judge and that perhaps is a reason why he has been subjected to such controversy. It comes at a juncture in India’s history where a strong Prime Minister and a wise judge are able to comprehend what needs to be done. That, more than anything else, is why contingency is such a strong element in contemporary India.

Will this phase of executive ascendency last or will it wilt away in India’s chaotic politics? Here, history is no guide. The last time the balance tipped against the executive, Prime Minister Indira Gandhi was in control and the political environment— in spite of the severe turbulence seen in 1970s—was relatively benign. The switch from executive primacy to judicial imprimatur was slow and not so perceptible. This is not the case now. After a quarter century of coalition governments, it seems quite normal to have weak governments. In the realm of ideas, governmental weakness is conflated with democracy. The contemporary ferment is due to an unwillingness to accept that a proper government—in command of its own sphere—is not a danger to democracy. This threat is largely imagined. In an electoral democracy as competitive as India’s, the best way to tame the executive is by responding to political transgressions and not by ‘remedies’ suggested by theories of legal liberalism. Any strong leader in a robust democracy is subject to political pressures and sensitive to shifts in mood. As a strong communicator and an alert leader, Modi certainly falls in this class.

If perceptions are one matter, the political reality may be another. Much of the uncertainty is over the General Election due in 2019. If the BJP is unable to secure the phalanx it needs in the Lok Sabha, then a return to the era of divided governments cannot be ruled out. But there are other factors at work, too. For one, Modi has been able to build a large tent-like coalition; for another, the middle class—its numerical inferiority notwithstanding—is not politically as impotent as it was in the age of ‘Garibi Hatao’. But some matters are constant: historically, executive power is directly correlated with legislative strength, and that remains as true today as it was in the 1950s.

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