The effective measure to assess the quality of governance delivered by any democratically elected government is to see the attitude and degree of commitment of the government towards the constitution and laws in that country. If the government is committed to the laws and the constitution of a nation, with permissible allowance for occasional deviance from the laws for the sake of betterment of its citizens, then governance in that country could be judged as desirable and ‘good’. In contrast, if a particular government’s commitment towards the laws is weak and deviances are pursued in a careless extravagant fashion, it could be said that such governance is undesirable and ‘bad’.
The quality of governance in any country could be judged through estimating where the government is standing in this continuum between strong and weak commitments to the rule of law and constitution. But the case of India poses a different challenge to this framework with its peculiar conditions. To assess the state of governance in India, it is necessary to look beyond this continuum of strong or weak commitments. This is because the present government through its actions, which are very noticeable, completely set aside the rule of law and pursue its own whims and fancies.
To understand this situation, it is useful to adopt a framework that is theorised by Upendra Baxi in his work ‘The Crisis of the Indian Legal System’. In this work, Baxi propounded the concept of ‘governmental lawlessness’, which means, in his words, “the state’s own inability or unwillingness to obey the rules that itself make”. This goes beyond “state’s weak commitment to the rule of law values (or substantial justice values)”. There is a thin line of difference between these two aspects in the sense that the latter recognises that the “duties imposed by law on the government in general and specific agencies, in particular, are so vast and varied that one may expect considerable deviance from rules as a structural property”, but former goes beyond this considerable degree of deviance in a way that there will be high visibility of lawlessness in government’s actions. This visibility is due to an attitude of complete indifference or obvious vilification and dismantlement of existing laws which the government feels as barriers in serving its self-interests, and the creation of new laws that will serve its will.
Governmental lawlessness can take many forms and Baxi listed several of those forms. In the present Indian context, the phenomena of governmental lawlessness can be found in four broad categories.
The first and most obvious factor is the government’s deliberate non-implementation or violation of the rule of law and constitution. The instances of this form are numerous, especially in the second term of the present government starting from CAA, Abrogation of Article 370, the EIA 2020 Draft notification, and shrouding of PM CARES funds from the scrutiny through RTI. The first two instances reflect the violation of the fundamental spirit of the constitution. Anyone with a basic idea of the constitution can easily point out this fact. Citizenship Amendment Act is antithetical to the principles of secularism and equality by targeting a particular minority group in India. Regarding scrapping of Article 370, the rush manner in which this is done in the parliament, with no credible debate on this issue shows the government’s skill and anxiety to violate any law and its unwillingness to give space for any debate.
The last two instances, regarding EIA and PM CARES funds, shows how the government is trying to dilute and violate the existing laws. Draft EIA is subject to criticism from environmental activists, civil societies and intellectuals. Former Minister of Environment and Forests, Jairam Ramesh described this draft as deeply anti-democratic and anti-public. This draft reflects the urge of the government to give faster clearances for the projects without considering the full damage they can cause to the environment. This act also makes the panchayats, NGOs and other organisations concerned with environmental protection impuissant from taking any effective action in case of a project being harmful to the environment.
Regarding PM CARES, the government is violating the RTI Act. In response to an application filed by RTI activist Lokesh Batra asking for details the usage of PM CARES and Prime Minister’s National Relief Fund, the Prime Minister’s Office refused to give the information claiming that providing such information “would disproportionately divert the resources of this office from the efficient discharge of its normal functions, thereby attracting the provisions under Section 7(9) of the Act”. Section 7(9) of RTI, 2005 states that “Any information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or prevention of the record in question”. It is completely incomprehensible to understand how this section could be invoked for not providing information even for the Wajahat Habibullah, India’s first Chief Information Commissioner, who said that this is a complete violation of the RTI Act and should be penalised under the law. This episode makes it clear how the present government wants to deliberately violate the information Act and breach its responsibility of being accountable to the people.
The second form of governmental lawlessness is “manifested often in governmental directions to the bureaucrats that the provisions of enacted law may be degraded, sometimes even at the point of sanctions within the bureaucratic structure. Such directions also operate at the level of law enforcement, especially in the police organisation”. This resembles the conditions which India was in nearly 101 years ago when the anarchic Rowlatt Act was passed in 1919 where the government licenced the police to arrest anyone without trial. After Independence too, India is not immune to such anarchy. It was repeated during the Emergency imposed by Indira Gandhi when people are arrested without any warrants. Forced sterilisations during the same period, where the government at the centre set the quotas for the number of sterilizations and penalised if officials failed to meet their quotas. This type of event is now continuously ‘in the progress’ in India since the present government came to power.
Many activists are arrested by police, structurally, one after the other, whoever raised their voices of dissent against the government. Even when the country was going through turbulent times because of the pandemic, the government prioritised to arrest its dissenters like Anand Teltumbde, Gautam Navlakha, and Hany Babu. They were added to the list of other activists and intellectuals like Sudha Bharadwaj, Varavara Rao, Akhil Gogoi, Vernon Gonsalves, and Sudhir Dhawale. The complete list is lengthy and growing every day. It is not easy to predict who will be arrested next, but patterns suggest two things. Firstly, all the dissenting voices in the country are on the hit list. Secondly, and importantly, the government is directing and using the police forces as a tool to serve its purpose.
This form of lawlessness where the government seeks to satisfy its interests through the bureaucracy is seen in the working of several autonomous institutions in India, like ED, CBI, and RBI. The appointments to top postings in those institutions, their main targets in the last six years, and the discontent expressed by the former heads of those institutions clearly portrays the degree to which the government is extending their roots into these institutions, which has its impact on the credibility of these institutions.
The third form of governmental lawlessness is seen in the “emergence of a privileged class which is virtually beyond the law. This class includes not just the rich and the resourceful but also those who belong to the political parties and certain sections of the bureaucracy. This class is almost impervious to law enforcement. The privileged class publicly repudiates legality and the rule of law”. They are the people who are virtually above the law”. The instances of this form are confirmed in two ways: Firstly, the present government is choosing people with criminal charges, some really serious, for contesting the elections. Pragya Singh Thakur, the prime accused in the Malegaon blast, was given the ticket to contest as MPs and she won with an astounding vote share of 61.11%, is a classic example. According to the Association of Democratic Reforms, 55% of total MPs with criminal charges against them are from the present ruling party. Adding the members in the coalition will hike the list. It is impossible to think that any of these people will ever be charged for the crimes they are involved in, unless a more powerful political party comes to power and seeks to ravage their incumbents. They are the people above law and are free to commit any number of crimes.
Secondly, the government’s attitude towards its party members, ministers, MPs, and MLAs who have caused severe damage to the harmony in the public with their words and actions. The memory of what Anurag Thakur, Minister of State for Finance, said in an election rally in Delhi this year is still afresh: “Desh ke gaddaron ko, goli maaro saalon ko” (shoot the traitors of our country). Sharing the stage with Anurag Thakur that time was Giriraj Singh, Union Minister for Animal Husbandry, Dairying and Fisheries. It is reported that Anurag Thakur later joined Amit Shah, Union Home Minister in the same election rally. This issue got worse when the same slogans were used by other members of the party in their election rallies, including by Kapil Mishra. This instance has to be linked with the second form of lawlessness discussed above. Activist Saket Gokhale said that Delhi Police granted him permission for a rally to chant the ‘Goli Maaro’ slogan and he posted a picture of the permission letter signed by the Delhi Police. Though the Delhi Police denied any such letter, what is clear is, even after the usage of such inflammatory slogan, which was captured on camera, no substantive action was taken (the only action taken was that they are banned for 3 days and the party removed him from the star campaigner’s list).
Turning to the fourth form of governmental lawlessness in India, which is comparatively very peculiar to India’s situation, involves “default by the governments in the implementation of their statutory obligations”. This form is manifested in the centre’s dealing with finances to states, especially after GST was introduced from July 2017. In the 41st GST Council Meeting held on August 27th, the Central government deliberately evaded its obligation to compensate the states. There is a shortfall in the GST collection due to already depressing growth rates of the economy and the lockdown imposed due to the pandemic. The economy isn’t showing any signs of recovery soon. It is the responsibility of the central government to cover the shortfall in state finances. The finance minister declared the present situation as an ‘act of God’ and gave the states the option to meet the shortfalls by either raising the entire uncovered sum in the form of debt or borrow from the RBI. These two options are highly disagreeable for many states, but they are not given time to express their concerns about these options. The indifferent centre left states in a helpless situation.
Many other forms of governmental lawlessness could be identified. These above four forms are dominant and more visible. These forms are interrelated and interdependent, and finally, seek to serve the interests of those in power at the centre. This leads to a vicious cycle of abuse of power and a democratic mandate. The governmental lawlessness in any form is antithetical to the spirit of the constitution and laws in India. They are potential enough to threaten the very nature of Indian democracy and severely impact the trust of people in its institutions. It is high time that Indians become aware of structural governmental lawlessness that is unleashed in the nation by the present regime and realise the collective necessity to end this process. It is only through continuous vigilance of citizenry and active participation in the political processes of the country, this lawlessness could be curbed and ensure the protection and prospering of democracy in India.