The tale of Indian institutions | Opinion

The Rajasthan crisis has shown the internal faultlines within the Congress, and the inability of the central leadership to reconcile the competing ambitions of the various factions that inhabit the party. It has shown the Bharatiya Janata Party (BJP)’s continued, relentless quest for political power and its instinct for recognising an opportunity of leveraging the faultlines of its primary competitor.

But beyond the political landscape, and beyond Rajasthan, the crisis has actually shown, yet again, the institutional decay at the heart of the Indian constitutional order. Each institution, autonomous and constitutionally or legislatively mandated to act in a particular way, according to first principles, has acted in ways that can raise questions. This is not unique to the state, but is a pattern that has been visible elsewhere.

Take four examples.

The first is the use of state apparatus, within the control of the political party in power.

Neither the Congress nor the BJP come out clean here. In Rajasthan, Chief Minister Ashok Gehlot appears to be using the administration, the police, and agencies of the state government to enhance his power and squeeze his rivals. This was reflected, most visibly, in the phone-tapping which ostensibly showed legislators being lured, and the investigation by the Special Operations Group against Sachin Pilot and his loyalists. The BJP has not been far behind. The fact that there have been Income-Tax raids against those close to Gehlot, and the Enforcement Directorate has summoned the CM’s brother in an old case, appears to be a visible pressure tactic.

To be sure, any case or alleged wrong-doing merits investigations — but the timing of the moves on the part of both the Centre and the Rajasthan government against political adversaries is probably not just a coincidence. The story is not that parties are doing this; the story is that investigative institutions are happy to play along.

The second is the role of the Speaker.

In Rajasthan, the Speaker happens to be from the Congress. This probably explains why he has been willing to initiate disqualification proceedings against rebel legislators with speed. One can argue that when a party writes to the Speaker about its legislators, any Speaker would follow due process and do that. This is true. But think of a counterfactual. If the BJP was to initiate disqualification proceedings against members of its party who were moving to the Congress, would the Speaker have acted with the same sense of urgency? Or go back to other cases, most prominently Karnataka, where a friendly Speaker sought to take decisions that would give the Congress-Janata Dal (Secular) government more room, or Manipur, where a Speaker who was elected on the BJP ticket, appeared to take decisions that helped the N Biren Singh government survive.

There is clearly a larger pattern here — which indicates that the office of the presiding officer of any legislature is often not the independent institution, above party loyalties, that it is meant to be. Past political allegiances of the Speaker play a key role in determining decisions.

The third institution is the office of the governor. In Rajasthan, Governor Kalraj Mishra has now agreed to convene the assembly on August 14, but this has come after a prolonged process of back and forth between the state government and the governor. Gehlot wanted a session from July 31 itself; the governor asked for a set of clarifications about the agenda of the session, suggested a 21-day notice period to convene the assembly; and asked about the social distancing protocols to be put in place — issues that did not necessarily fall within his mandate.

The first principles here are quite simple. Both the Constitution, and a series of Supreme Court (SC) judgments, has allowed the executive the right to ask for a session of the legislature. The governor, in the case of state assemblies, or the President of India, in the case of Parliament, has limited discretionary room in this regard. It is also both an established custom, and good form, for any government to seek to prove its majority in the house — when there are doubts about its stability. The governor’s rejection of the government’s first three proposals gave rise to suspicions about whether Mishra — who has served as an important leader of the BJP — was seeking to give the Opposition and rebel legislators more time to rally their numbers. But this goes beyond Mishra. In Karnataka or Manipur, the fact that former BJP leaders are governors has helped the party in its political goals. And in the past, when the Congress has been in power, governors appointed by the party have acted in a similar way.

The story once again is not of one governor or the other. But it is about how a constitutional institution, meant to be non-partisan, has often acted in partisan ways, and in contravention of the spirit — if not the letter — of the Constitution. The fact that it is now almost a given that governors will behave in ways that suit their former parties is disturbing.

The fourth institution is the judiciary.

In Rajasthan, the high court stepped in and effectively stopped the Speaker from initiating disqualification proceedings against the rebel legislators of the Congress. The usual judicial precedent, on such cases, so far, is respecting the autonomy of the legislative domain and of the Speaker, and reviewing decisions after they have been taken in case of a legal challenge. Once again, this goes beyond the state. In Karnataka, the SC, by allowing rebel legislators not to follow the party whip by saying they could not be compelled to participate in proceedings, weakened the Speaker’s authority — with major political implications.

The judiciary deserves, and has, the utmost respect of all Indian citizens, including political actors who often take their battles to the courts. It is the failure of the political class to be able to preserve the autonomy of the legislature that invites judicial intervention in the first place. But once it has been asked to intervene, it is important for the courts to act consistently, based on established doctrine and principles. Otherwise, decisions can end up generating controversies and suspicions which unnecessarily undermine its dignity.

Governments come and go. Political parties rise and fall. But the Constitution — and its vision of independent institutions — is permanent, and ensures both stability and legitimacy of the political system. The story of the erosion of institutional autonomy can, thus, erode both the stability and legitimacy of the system.

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