Ten years ago Tarunabh Khaitan may have appeared a brilliant legal scholar. Sadly, he turned out to be a cretin. Two years ago he published a hysterical screed in some shitty academic journal titled Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India which argues that an elected Government has a duty to lose elections to the Opposition. If no Opposition exists it is its duty to create one. This is a crazy doctrine. On the other hand, it is precisely the argument that an anti-national individual might wish to promote or which enemies of the countries would pay money to publicize.
Foreigners may not know that the Supreme Court has the sole right to interpret the Constitution and to decide what is or is not a 'cut' or other assault upon it. Moreover, the Bench is self-selecting. Thus only decisions by the Bench can permit harm to the Constitution. 'Executive Aggrandizement' has no such power. It is likely that the Bench will tire of having power without responsibility and permit an expanded doctrine of political question. This is because its prestige has greatly declined. It couldn't punish Prashant Bhushan's contempt and it may increasingly be seen, going forward, as a paper tiger.
Meanwhile Congress and the Left (outside Kerala) have collapsed. This means the 'Rights based approach to Development' will be rolled back. The notion that the function of the Judiciary and Civil Society was to exclude Politics from the public realm has died a death. It is clear that charismatic leadership focused on 'deliverables' on the one hand, and 'majority consolidation', on the other will drive politics at both the Central and State level. The BJP will be in a position to alter the Constitution if it so chooses. But those changes will have to be dictated by purely economic and geopolitical considerations because India faces diminishing fiscal headroom under adverse international conditions. It will have to drastically prune back 'compliance costs' for enterprises at the State level. This means more 'subsidiarity' regardless of who is in power. COVID has taught everybody a stern lesson in this regard.
Khaitan begins his article by mentioning exactly the groups of people for whom Indians no longer have any respect.
Many concerned citizens,
busybodies
including judges,
corrupt or stupid pinheads
bureaucrats,
see above
politicians,
see above, unless they managed to get re-elected, in which case they might be on to something
activists,
see above
journalists,
see above
and academics,
see above
have been claiming that Indian democracy has been imperilled under the premiership of Narendra Modi, which began in 2014.
Many more think that a country where the daughter of the PM becomes PM and then her son becomes PM and then her grandson becomes the PM candidate is not a Democracy at all. It is a hereditary monarchy with plebiscitary characteristics.
Modi now has a plausible successor in Yogiji. This means the BJP is a proper political party rather than a personality cult or the only alternative to a dynasty dying nasty.
To examine this claim, the Article sets up an analytic framework for accountability mechanisms liberal democratic constitutions put in place to provide a check on the political executive.
Does that analytical framework exclude dynasticism? If not, it is useless.
The problem with saying that 'accountability' is a feature of liberal democracy is that everybody is free to hold those who gas on about accountability, themselves accountable for their misology and general shittiness.
Lawyers and journalists may like to think of themselves as inquisitors. But a popular guy who gets elected can make them cry by saying mean things about them. The fact is accountants are badly paid guys with dandruff- unless they are well paid in which case they do what you tell them and feather their own nests. Those with power employ accountants and auditors but they cut them off at their knees if they get uppity.
True, a crazy cat lady can go on badgering some low level municipal employee till, to shut her up, she gets to feast her eyes on a spreadsheet or something of that sort. But everybody is laughing at her.
Accountability goes with Transparency. The problem is that transparency paralyses decision making or leads to horrible outcomes. It is easy to turn the tables on the nutters who are obsessed with transparency and accountability. You just accuse them of being corrupt racist cunts who must be held accountable for raping their own dogs.
There's a good reason only positive law exists. Any attempt to broaden its scope beyond 'command' can be easily frustrated or rendered a source of lasting mischief.
The assumption is that only if this framework is dismantled in a systemic manner can we claim that democracy itself is in peril.
This is foolish. A democracy may be imperiled by foreign invasion, civil insurrection or economic collapse. There is no evidence that constitutional 'checks and balances' have ever enabled a country to survive the same sorts of threats as would imperil any type of extant regime.
This framework helps distinguish between actions that one may disagree with ideologically but are nonetheless permitted by an elected government, from actions that strike at the heart of liberal democratic constitutionalism.
No such distinction can be made within this framework. An elected government may be permitted to go to war. We may agree with the ideology which motivates it to do so. However, if we can be reasonably certain that the war will be lost, the nation will be invaded and occupied, then, clearly, a contingency has supervened with had nothing to do with any lacuna in its 'systemic framework'. Liberal democratic constitutionalism collapsed because the country went to war with a much stronger and more ruthless enemy.
Similar points may be made about disastrous economic decisions or internecine conflicts which may wax for exogenous reasons- e.g. infectious militancy of a religious or ideological type.
Liberal democratic constitutions typically adopt three ways of making accountability demands on the political executive:
This is nonsense. No 'accountability demands' whatsoever are made on the political executive by any liberal democratic constitution. It is a different matter that citizens may seek accountability in various ways- some of which may be legal. Consider the election of Donald Trump. It did not arise out of 'electoral accountability' because both he and Hilary were unknown quantities. One may say that his losing the election had to do with accountability. But this is merely a manner of speaking. He won. Then he lost. He didn't do 'accountability' before or after or during any election.
vertically, by demanding electoral accountability to the people; horizontally, by subjecting it to accountability demands of other state institutions like the judiciary
Trump stonewalls the judiciary and the Senate and so forth. It is perfectly legal for him to do so. 'Accountability' is merely a hobgoblin in Khaitan's misty mind.
and fourth branch institutions; and diagonally, by requiring discursive accountability by the media, the academy, and civil society.
Hilarious! Trump was discursively accountable to the media and academia. Sure! So was BoJo! Why is this cretin writing such nonsense in 2020?
This framework assures democracy over time – i.e. it guarantees democratic governance not only to the people today, but to all future peoples of India.
Rubbish! The framework won't stop terrorism or ethnic cleansing or a Chinese invasion or a famine or economic collapse. Khaitan lives in cloud cuckoo land.
Each elected government has the mandate to implement its policies over a wide range of matters. However, seeking to entrench the ruling party’s stranglehold on power
as opposed to one family's stranglehold on power
in ways that are inimical to the continued operation of democracy cannot be one of them.
Why not? If Indira could pass the scepter to Rajiv what fucking 'continued operation of democracy' obtained? Don't forget the Emergency when she jailed her opponents. Why is Khaitan pretending that India wasn't ruled by a dynasty till Rajiv was killed and Rahul was too young to inherit?
The Article finds that the first Modi government in power between 2014 and 2019 did indeed seek to undermine each of these three strands of executive accountability.
An irresponsible claim made without any accountability whatsoever.
Unlike the assault on democratic norms during India Gandhi’s Emergency in the 1970s, there is little evidence of a direct or full-frontal attack during this period.
Because it didn't happen.
The Bharatiya Janata Party government’s mode of operation was subtle, indirect, and incremental, but also systemic.
No. Congress and the Left turned to shit. The Samajwadi parties degenerated into dynastic gangsterism. There was Hindu consolidation because of the global threat posed by Jihadi ideology.
Hence, the Article characterizes the phenomenon as “killing a constitution by a thousand cuts.” The incremental assaults on democratic governance were typically justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions)
This Article is an assault on democratic governance based upon unjustified assertions and made without any sense of responsibility or accountability. It is mere rhetoric of a paranoid and bigoted type. It purposely targets a fit and proper purpose of the administration- viz. improving managerial efficiency and the promotion of good governance- in a mendacious and mala fide manner.
and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors of the state).
This article indulges in a divisive and paranoid rhetoric of an anti-national type. It brands politicians to whom the author is opposed as harboring treacherous intentions to the Constitution. It alleges that the basic structure of the constitution is being systematically endangered. The intention is to promote sedition and damage the country's standing in the comity of nations. It provides no justiciable evidence of any of its false and mischievous assertions.
Since its resounding victory in the 2019 general elections, the Modi government appears to have moved into consolidation mode. No longer constrained by the demands of coalition partners, early signs suggest that it may abandon the incrementalist approach for a more direct assault on democratic constitutionalism.
So Khaitan is a prejudiced observer. He has a pre-established theory and is seeking to make it fit the facts. What are those facts?
Khaitan says 'the first Modi government in power in India between May 2014 and May 2019 consistently sought to erase the distinction between the party and the state by incrementally, but systemically, seeking to undermine or capture mechanisms that seek executive accountability.'
What evidence does Khaitan produce? Well, he says Modi is trying to increase the Hindu percentage of the population. This is perfectly legal. Indeed, expelling illegal Muslim migrants is required by law. It was the Bench which suo moto opened detention centers for them.
The second thing Khaitan mentions has to do with election finance. Again it was perfectly legal for the BJP to change things so as to reduce corruption and prevent money disappearing into the pockets of middlemen.
In 2014, two major national parties – the BJP and the Congress – were held liable for illegally accepting foreign contributions.
It was from Vedanta. Both parties appealed to the Supreme Court.
In response, the BJP government retrospectively amended the Foreign Contribution (Regulation) Act 2010 to narrow the definition of a foreign company, and thereby remove the illegality.
They were free to do so. Vedanta isn't foreign owned. Its promoter is not a foreign power seeking to undermine Indian sovereignty.
This was done surreptitiously – not through a standalone Bill amending the 2010 Act, but via clauses slipped into the Finance Act 2016 (which granted retrospective immunity for receiving illegal foreign donations after 2010) and another amendment through the Finance Act 2018 (which extended the immunity to all donations received since 1976).
So the thing wasn't surreptitious at all. Khaitan might not like it but we don't like Khaitan. He is a cretin.
The guy next mentions the plan for simultaneous State and Central elections. He does not mention that India's first 4 elections were of that type. Desynchronization happened as administrations were dismissed or because of no confidence votes etc.
What were Modi's other crimes? He failed to ensure there was a strong opposition! Seriously, that's the proof Modi is Hitler?! First he does not aim to increase Muslim percentage of the population. Then he is so evil that he doesn't even ensure lots of Opposition MPs get elected and that they have a nice Leader who will encourage them!
Before 2014, the office of the Leader of Opposition had not been vacant since 1989.
There was no such office prior to 1969. It was occupied for a year and then remained vacant for 7. It was occupied for more than a year but then remained vacant for 10 years.
The absence of a designated Leader of Opposition mattered because it denied certain perks of office – like a salary and secretarial staff – to the opposition. Further, since 1989, Parliament had reformed or established several independent fourth branch institutions, whose appointment mechanisms of which require the participation of the Leader of Opposition.
But the law requiring the leader to have 10 per cent support in the Lower House. How is it Modi's fault that there is no such party?
The orchestrated vacancy in this office was used by the government as an excuse to stall certain appointments to these fourth-branch institutions. The Supreme Court intervened to allow these appointments despite the vacancy in the office, which gave the government a free hand in such appointments.
as had happened before and would happen again.
Khaitan has plenty more of this sort of wholly mala fide and mischievous suggestio falsi. There are no 'thousand cuts' at all. Instead, there is an uncritical and unblushing repetition of every sort of canard and misrepresentation of the facts to be found in 'charity funded' news outlets like the Wire.
Khaitan's premise is simple. The constitution is undermined unless the Government does its best to lose the next election.
Ultimately, the three modes of seeking executive accountability ensure that today’s political losers can be tomorrow’s winners. They provide political insurance to the losing side, giving them hope of future victories, and thereby securing their consent to play by the rules of the democratic game and resolve disputes politically rather than violently. Undermining democratic checks ultimately risks authoritarianism, and is therefore inefficient as well as unpatriotic.
This is crazy shit. Today's political losers should fuck off and die. We need better politicians to enter the fray. 'Political insurance' creates moral hazard. That's the fucking definition of allocative inefficiency. Why do a good job when you can do a shitty job and then get insurance money? The people can shit upon those who don't play by the rules or those who are utterly crap. They need to be flushed down the fucking toilet. Authoritarianism is preferable to Economic collapse or Military defeat. Democracy is not a sacred cow. The Indian Constitution gives the Executive sufficient power to meet any Emergency- internal or external. Unpatriotic cunts like Khaitan are welcome to fuck off to Blighty- but so are other useless people, me included.
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