Pratap Bhanu Mehta - Phantom democracy

Court has exposed the governing principle: evil deeds are done but there is no doer

The dance of Indian democracy is a virtuoso performance, the functioning of its institutions a monumental catastrophe. This irony is so palpable. Karnataka just witnessed a wonderful election. Participation was high, the contest was keen, the tone moderate. A thoroughly incompetent, corrupt and faction-driven government was thrown out of power. There is no other complication to the story. But how many times has this republic seen this exercise conducted, only to have its hopes dashed? We hope that the new government in Karnataka will move to a new paradigm of governance. But this result cannot shake off the looming institutional crisis. Parliament adjourned sine die, without conducting any significant business, as if we elect representatives simply to leave everything in abeyance. It says something about parliamentary capacity that some are relieved that it did not conduct business. Some of the bills, such as the food security and education bills, are so awful in their present form that it is a relief they were not passed.

And to top it all, the Supreme Court has given uncommon expression to common anguish in the questions it asked of government. The government has no sense of propriety, shame, ethics or common prudence. In court, the same sordid drama unfolded: scandal after scandal, made even more egregious by initial attempts to cover them up, then to brazen it out and then, in the final gambit, to insulate the highest authorities from any responsibility. There is a proper time and place for a debate on what the institutional architecture of the CBI should be; designing autonomous but accountable investigating institutions is not as easy as we often make out. But in this particular instance, there was a context that made the government handling of the CBI status report outrageous. There was a Supreme Court directive, there were several undertakings given by the government itself and there was the pressing political need to be seen to be above board. But the fact that the government did not even feel it proper to keep up appearances is a mark of how narcissistic and hubris-driven it had become. The responsibility for a culture of corruption, evasion, lying and sheer contempt for institutions lies directly at the door of Sonia Gandhi and Manmohan Singh. Their air of injured innocence has become nauseating.

We might draw solace from the fact that the Supreme Court is enforcing accountability. In an era where no principles matter, it would be unfair to judge court intervention on a purist's view of first principles. Is the court overreaching? But if the government keeps receding, courts will inevitably extend their reach. Our constitutional scheme, our administrative law, our lines of authority stand so subverted that all that the courts can do is fight fire. The court has expressed anguish. But it would be a foolish republic that would proceed on the assumption that the courts can, in the long run, govern, legislate or even monitor. The court has exposed, in no uncertain terms, the complicity of government. It has also exposed the cardinal principle on which this government is run: evil deeds are done, but there is no doer. The prime minister is not responsible, neither is any minister or the cabinet. Misleading undertakings are given in court and no one is responsible, officials are found transgressing propriety and no one is responsible, or the violations are described as trivial. And in the end, the political defence will be that the prime minister did not know or that Sonia Gandhi is an embodiment of political morality and will finally demand political accountability by firing a minister or two. The dance of democracy quickly gets converted into the convulsion of institutions, presided over by those who care more for themselves than any principle.

But there is a question of larger complicity. The Vineet Narain judgment has been around for a while. But no political party has shown the slightest inclination to restore integrity to the functioning of investigative institutions. How did we come to such a pass that the professional integrity of every single office in government is compromised? There is no doubt that the attorney general's office has failed to discharge its constitutional duty to give objective legal advice. Instead, it has converted itself into an agent that does the hatchet job for the state. Then there is the question of the CBI itself. The court rightly pointed out that the question of the supervision of the CBI is a complete mess: its accountability and protocol are not entirely clear. But it is also not clear why, in a context where it is being supervised by the court, it did not simply seek directions from the court if it was in doubt about what information it should have shared with the government. The CBI itself seems, at best, not to have applied its mind. At worse, it might itself have done a set-up job on the government: willingly go along with it and then distance itself. Is there any reason to trust the CBI even when the executive is kept at arm's length? How is anyone to determine if it is investigating fully or revealing the whole truth? The court is not just indicting executive interference, it is raising deep questions about the ethical veracity of the CBI.

The republic is now at a delicate crossroads. The government may brazen it out. But in doing so, it is creating a crisis of institutions not seen since the Emergency days, when an executive took on the judiciary on the dubious grounds that it had a mandate. Effectively speaking, there is no Parliament left. What does the claim to democratic mandate mean? Karnataka may have voted for Congress to punish one set of rascals. But in her heart, every voter knows that democracy is being subverted in its very exercise. The lasting damage this government has done to institutions will take a long time to repair. Seldom before have we seen a government that poisoned its own mandate, and so needlessly. The prime minister is honest, we will hear. But never before has someone been so thoroughly compromised through abdication. Sonia Gandhi stands for the poor. Never before have the poor been so brazenly used to cover a multitude of sins; and never before has so much emphasis been on policy that will condemn the poor to poverty. The government's position is untenable. It has a choice: inflict governance torture on the country, or let the people speak as soon as possible. As Karnataka showed, democracy may give them a second chance. But at the moment, the government is not giving the country any chance.

http://www.indianexpress.com/news/phantom-democracy/1113222/0#sthash.1ZMN364D.dpuf