In Conversation with Tarunabh Khaitan: Checking the Ascendant Executive in India

“Instead of one big blow to the democratic framework, like declaring the emergency and suspending all rights, you have a series of micro-assaults on democracy, a “chipping away” of the democratic framework.”

India, like many countries, faces democratic backsliding. In the newest episode of the RevDem Rule of Law podcast, our editor Gaurav Mukherjee talks to Tarunabh Khaitan (Head of Research at the Bonavero Institute of Human Rights at the University of Oxford, Professor of Public Law and Legal Theory at the Faculty of Law, Fellow at Mansfield College, and Honorary Professorial Fellow at the Melbourne Law School) about his recent work on the phenomenon of democratic backsliding in India, the rise of an unchecked executive, and the role that courts and opposition parties play in protecting democracy. 

Gaurav Mukherjee: India is seen as being the world’s largest democracy, but in 2020 it was downgraded by Freedom House to being only partly free. What do you think has changed in the years since the election of Narendra Modi? And where do you see the tipping point? 

Tarunabh Khaitan: Let me start with the last part of your question: where was the tipping point? That is an incredibly hard question to answer, mainly because of the way in which democracies are hollowed out in our times. The old-fashioned way of de-democratization or authoritarianism was a full-frontal assault on democracy – tanks on the streets of the capital, and a declaration of an emergency. Basically, this is what Indira Gandhi did in the 1970s. There was a clear, definable, usually spectacular tipping point in these old-fashioned coups. Sadly, they still happen and have actually increased over the last year or two. But what we have seen in India over the last eight or nine years – and in other larger democracies like Poland, Hungary, the United States, Brazil, and some others – is much more gradual. It is an incremental, but systemic, assault on democracy. Instead of one big blow to the democratic framework, like declaring the emergency and suspending all rights, you have a series of micro-assaults on democracy, a “chipping away” of the democratic framework. In Hindi, we have a saying “sau sunar ki, ek lohaar ki”: “The blacksmith’s single blow is mightier than the hundred tiny chips made by the goldsmith”. But I think in this case that the goldsmith is having the last laugh. And that is why the paper I wrote on the topic was called “Killing a Constitution with a Thousand Cuts”. 

What does that do to the nature of scholarship and what does that do to those who study democratic backsliding when this change is so incremental? Does it make it easier or harder? And how do you deal with these challenges? 

It makes it incredibly hard and not just for scholars. It is creeping authoritarianism. Anything that is not in full view, that which is subtle and incremental, is harder to detect and put your finger on. It is harder to know when it began; but it is also harder to know if and when it will end or whether it is here to stay, and what the end goal is. The main difficulty is that, without a spectacular change in the democratic fortunes of a country, the opposition and media do not know what is going on. And courts, which are typically focused on single breaches, find it incredibly hard to say that micro-assaults, these tiny micro-aggressions against the constitution, are a problem because they are usually not a problem.  

There are two things to note about micro-assaults on a constitution. First, every democratic government at some point engages in some form of micro-aggression on the constitution – in India and elsewhere. But there is a difference. 

Playing hardball with the constitution,” in Mark Tushnet’s terms, is rare in the context of most democratic governments. They do it only once in a while for a really important policy reason. For the neo-autocrats, it becomes routine. The difference is the volume, and the number of fronts on which these micro-assaults happen.

 Secondly, they are very hard to see; unless you put them all together in a systematized framework, it is very hard to know what is going on in totality. To extend the thousand cuts metaphor: if these cuts are only skin deep and tiny, you would not go to see a doctor. They may be so tiny and minor as to not even require a band-aid. But when you inflict such tiny and minor cuts on a massive scale, then it becomes a problem of a different character. But putting your finger on when that has happened is really hard. And the government that is assaulting the Constitution incrementally typically relies on precedent that shows, correctly, that other governments have done it before. But that is only half the truth. What they are not telling you is that the difference is one of scale and systemacity.  

What I enjoy about your work is the way it helps us set apart things that we, as progressivesperhaps do not like but which may nevertheless be constitutionally permissible. This is a good segue to why you identified checking an ascendant executive as the most pressing problem of constitutional design and theory. Could you illustrate that idea with a few examples of where you see your framework at work to help our listeners understand exactly what this assault on democracy looks like in India? 

By the political executive, I mean primarily presidents and prime ministers, and in some cases their puppet-masters. These heads of the political executive have been the main protagonists of this wave of neo-authoritarianism. Old fashioned coups were typically launched by military leaders. But now we have leaders who are usually elected in legitimate, democratic elections who launch assaults on a democracy. The playbook they use is to undermine an entire constitutional system of checks on the executive. 

The executive is often called the most dangerous branch because it has the power of the sword. It can coerce people and it controls the military and the police. Therefore, most democratic constitutions spend most of their time trying to figure out how to control the executive. 

In particular, constitutions typically use three types of mechanisms to check the executive’s power. In the vertical or electoral dimension, they make the executive’s hold on power subject to periodic elections where they have to go to the people and receive another round of endorsement. The second horizontal or institutional dimension makes the executive accountable to a whole set of other constitutional actors. These include the political opposition, mainly in the legislature, but also outside of it. It includes courts, and it includes a range of guarantor institutions, also called fourth-branch institutions, which are independent constitutional regulators that guarantee fundamental constitutional norms. For example, the Election Commission is meant to guarantee free and fair elections. The Human Rights Commission is meant to guarantee human rights and so on. And finally, through the third set of mechanisms, constitutions facilitate making the executive accountable to diagonal or discursive accountability. This includes accountability to civil society, to the media, to universities, trade unions, religious groups, and so on.  

In the paper, I trace and outline multiple fronts opened up in each of these dimensions since 2014 in India. To give just a few examples: On the electoral front, efforts to cast suspicion on the citizenship of India’s Muslim residents, starting with the state of Assam, is an attempt to change the people – an attempt to change demographics itself. The main reason is that, because the ruling party is hostile to Muslims, it receives hostility in the ballot box in return. Hence, it prefers to exclude them through mechanisms like the National Register of Citizens. On the horizontal dimension, we find the non-recognition of the institution of the leader of Opposition, and the demotion of the Information Commission, which had quasi-constitutional protections, to a mere statutory body accountable to a ministry. There were also attacks on courts – with mixed results.  

These are some ways in which the Indian government has sought to undermine, eviscerate, or capture other constitutional actors who are meant to check it. In the discursive dimension, the government has used violence, murders, and assaults either directly or through the police or sister militias – organizations like the Bajrang Dal and the VHP. There have also been illegal arrests and detentions for considerably long periods of time. This targets not only people that you might call radicals, but fairly mainstream journalists, academics, students, and lawyers. These are just a few examples of micro-assaults. Some of them may not sound particularly ‘micro’ and may be problematic even in themselves. But when all of this is happening at the same time on each of these fronts, then a clear, sustained strategy becomes evident. 

It would appear that something like this could easily be checked by an institution like the judiciary. How do you see the role of the Indian judiciary in helping check democratic decline and why do you think that it has been largely unable to do so in the last few years? 

I think that when it really matters, when democracy is really on its last legs, courts are actually not that effective. In the face of a coup, for example, what the court says is likely to be irrelevant anyway, and it may even cost the judge at least her job, if not her life. In a more incremental form of democratic backsliding, the challenge for even a well-meaning and well-functioning judiciary is one I mentioned already: how do you account for a problem that is systemic in an institution that is designed to look at individual problems, particularly disputes? These disputes concern what A did against B on this date in this manner. 

Courts are not designed to look at overall systemic trends. They can do it, and some courts are better at doing it than others. But it requires a different type of skill more readily available to social scientists than to judges. So courts are badly situated to deal with incremental democratic assaults in any case. 

What has been particularly bad in the Indian context is that the Indian judiciary does not have a great record of defending democracy to begin with. Even on the question of whether citizens have the right to vote, the Supreme Court has dilly-dallied and given conflicting opinions. Even when it has used arguments based on the structure of the constitution, it is usually to protect its jurisdiction and judicial review, rather than to defend, for example, opposition rights or the powers and independence of other democratic institutions like the Electoral Commission. Added to that is a new worry that there is an effort to influence or put pressure on the courts. There was an infamous press conference, where open allegations by senior judges were made about efforts to influence the judiciary. Read into it what you may, but it is not clear that the independence of the court, or at least of individual judges, is being respected by the executive. At the very least, there is a climate of fear and the possibility of fear and favor.[OG4]  All these features combined mean that, even in contexts where the court had a reasonably good record –  for example, federal questions where it defended the rights of states against the central government –  the judiciary has fared quite badly in the last seven or eight years.  

Take, for example, the Delhi government’s case. The Court presented a judgment that is extremely high on democratic rhetoric. It talks about how the elected Delhi government is facing an extremely hostile central government, making it dysfunctional. Despite its democratic rhetoric defending the right of the elected Delhi government, the final order is so pathetic that it has not really left much room for maneuver, nor has it improved things considerably for the government of Delhi. It is a tough thing for courts to do anyway. It is particularly tough in the Indian context because of the Court’s poor record on civil liberties and democracy. And it is made worse by current efforts to influence at least some judges. All this has meant that the court has simply failed to stand up for democracy. 

You mentioned that there is a clear role for Indian states to serve as something of a bulwark against the rise of an ascendant central government. And we have seen that the ruling party has suffered several electoral setbacks at the state level, but somehow continues to remain popular at the national level. How do you see the role of federalism and states in relation to the future success of the ruling party? 

I think that federalism in India is probably the single most important institution that supports Indian democracy, and in fact it is the only horizontal mechanism that has done anything at all to defend democracy. That should not be surprising. When we are talking about federalism working, we are talking about political parties that are in the opposition at the federal level standing up for democracy. The reason why it is unsurprising is that, for them, it is a battle for survival. Even though individual opposition leaders may be accommodated by the ruling party, for the opposition party co-optation is, in most cases, as good as dead. The same is not true for the judiciary and other guarantor institutions. 

Guarantor institutions like the judiciary are extremely important. It is very necessary that we maintain their independence, but the opposition is the canary in the coal mine. Because, for the opposition, the issue of the survival of democracy is an existential matter.

It is the first group to notice what is going on and understand its grave implications and try to fight back.  

In the Indian scheme, there are really only two institutions that give the opposition a political say and political powers. One is the Rajya Sabha and the second are the states. The Rajya Sabha, the Upper Chamber, has been emasculated by the footwork the government has done in relation to Money Bills. The Rajya Sabha cannot veto Money Bills and therefore any bill the government cannot get through the Rajya Sabha is declared to be a Money Bill. The Supreme Court, by majority, did not say what was plain and incumbent upon it to say: that the bill in question was clearly not a Money Bill and required the Rajya Sabha’s consent. So, while the Rajya Sabha still exists, it has been undermined. And similarly, the states have also been undermined. But these institutions function because the opposition has the strongest interest in the survival of democracy. 

It seems that you have given us some thought about what kinds of lessons the Indian experience can tell us about how we design institutions so that something like what is going on in India, and of course globally, does not happen again. Do you have a sense of how the Indian experience influences your thinking about institutional design? 

These are tentative thoughts, and obviously context matters a lot when it comes to institutional design. I do think that a robust democratic system needs to have a robust scheme of opposition rights and powers. The winner-takes-all model that is used in most democracies today is simply not acceptable or appropriate. We talk so much in our discipline about the power and influence of unelected judges. We do not spend any time thinking about how elected representatives have no political power and only a modicum of political influence, even if they are representing vast numbers of people, or in some systems, like in India, even the majority of the people. That has to change. Therefore, the rights of the Upper Chamber and the states have to be defended robustly as a starting point. We must enshrine and entrench offices like those of the leader of the opposition and parliamentary committees with equal rather than proportionate opposition membership.  

Beyond that, the judiciary and guarantor-branch institutions have to be protected from the executive by giving the opposition an inalienable and equal voice in their appointment. We need to ensure their independence in seeking accountability. This cannot be left at the mercy of the ruling party. 

A good design vests power in an actor with the strongest interest in ensuring that the norm in question is respected. Clearly, the political opposition has the strongest interest in the norm of democracy being respected. That is where I would start thinking about what can prevent or reverse democratic decline.

 Having said that, I have no illusions that even the best-designed institutional systems can fail badly, and terribly designed ones can muddle through. Design is not a panacea. It makes things more or less likely. And that is all humans can try to ensure. 

You mentioned something very interesting about the importance of context in thinking about questions of democratic backsliding and institutional design. What kind of lessons do you think there are from the Indian experience with democratic backsliding and possible counters that have been mounted against it? And where do you think that fits within broader global trends? 

The phenomenon is happening in many parts of the world and there are many similarities, like the incremental model of assault. What is particular about the Indian context of this brand of incremental authoritarianism, and unlike Poland or Hungary, is the use of state and extra-state violence in undermining democracy. Context matters.

Reforming the police or the criminal justice system wholesale, for example, may not be essential for defending democracy in other countries. But in India, you cannot think democracy is safe unless the entire mechanism of the criminal justice system is made professional and non-partisan, and unless non-state violence is curbed robustly and in all context. 

These special additional needs are dictated by the Indian context.  

Another difference is the role of conventions. All constitutions rely on conventions. In the British context, a public discourse already acknowledges the importance of constitutional conventions. When such conventions are breached, there is a public debate in terms of a constitutional breach. Whether the Prime Minister lied in parliament is a constitutional debate in the UK. When the Indian Prime Minister went to meet the Chief Justice in his office in a one-to-one closed-door meeting, we had a debate about its propriety and the fact that such a meeting had never happened before. But we did not engage in that debate in terms of its constitutionality. I think that again, in the Indian context, it would have been extremely useful to think about why no previous Prime Minister sought to meet the Chief Justice in a one-to-one closed-door meeting without aides or taking notes. Why did previous governments not send memos to election commissioners? Why did they feel bound by certain political and constitutional norms of propriety? I think, again, that the context makes a difference. It is much harder to defend norms that you cannot – or do not – articulate as constitutional norms, rather than just norms of decency or good behavior. These are just two examples of why we cannot ignore the context and there is no single remedy to solve the disease everywhere. 

And this concerns a topic that Christophe Jaffrelot also picks up in his new book, which is the role of vigilantism and non-state actors in enforcing the will of the ruling party in a way that is completely autonomous and ensures a degree of low-level violence at all times.  

The other thing that you mentioned in connection to the aspect of discourse accountability is the role of the media in framing public debates around the propriety of high constitutional officers. You note how the media in India has become so captured that these issues are not framed in the right kind of way. 

Exactly. Just take the electoral bonds issue. The ruling party, through a constitutionally dubious Money Bill overriding the Upper House’s veto, introduced an anonymous electoral funding mechanism of which it is the main beneficiary. I believe the last figure showed that about 90% of the money collected under the scheme went to the ruling party. That would have been a major issue in any healthy democracy. You would see weeks and months of major newspapers discussing it. 

The relative silence of mainstream media on that and several other issues also shows that it is perhaps not just violence that has facilitated democratic deconsolidation in India, but also money – often through crony capitalism and the state-capitalist-media nexus.

I want our conversation to end with a meta-question. Could you reflect on how you see the role of the academy, particularly the legal academy, as a truth-seeking institution in response to democratic erosion? How do you see your role as a public law scholar, who is the educated within the academy and acting as an interlocutor for these kinds of issues for a broader audience, but who is also located outside of India? 

I think the academy is a key part of a system of separation of powers in any democracy. Alongside the media, universities have a hugely important role in ensuring the power is checked. Academia and media have different types of role and discover different types of truths. The media goes after truths that are available to be discovered that may be obvious or self-evident, which is not to say that they are easily discoverable. It takes a huge amount of investigative journalism to find these truths. The methods are different, too. 

In the academy, we tend to perceive truths that require excavation, and which are not self-evident. We seek different types of truths, and we publicize it to our peers. In a well-functioning democracy, the academy also publicizes its finding through the media and to the public at large. 

That is obviously a key element of discursive accountability. I believe that it is important for the academic role to be restricted to truth discovery, truth-telling, and dissemination. This includes translation work for non-expert audiences, etc. But we have to keep some distance from activism and recognize, with modesty, that activism requires a different skill-set that academics do not have. Sometimes, trying to fix things that you are not an expert on can make things much worse. Academics are more proficient to fight the discursive battle, to tell the truth, and to let people who know what to do with it, to allow them to do things with it. That is my view of the scholarly role. I think that too close a relationship with practice can actually make truth-telling not only harder, but also corrupted. I think it is really important for the academy to maintain that distance. 

On the second part of your question on whether it matters to me that I am not based in India, I think that, given that the nature of my work is document based, it does not matter to the quality of my work. I will be trying to access exactly the same documents and do exactly the same kind of analysis, whether I am doing that in India or in the UK. If I were a scholar for whom the nature of my inquiry and my discipline required fieldwork and interviews, I obviously could not do it without going to India. But I believe that the quality of my work has not suffered. And I do not live in an ivory tower, which is a stereotype in any case. I engage regularly and deeply with scholars and other actors to keep myself informed and updated. Of course, certain issues do attach themselves to location. One is easily dismissed by people who do not want to engage with your argument, and therefore dismiss what you are saying because of where you are based. This is unscholarly and silly, and I do not have much time for it. There is a broader question here of opportunities, structures, and capacities in Indian universities to do truth-telling. These were difficult to begin with, and under renewed state assault it has become incredibly difficult for scholars to pursue it. 

There is a broader point that a democracy cannot be saved by scholars in the diaspora. An academy that performs its checking function has to be rooted and located within its own context. It has to be robust enough and allowed the academic freedom that it needs to perform professional and constitutional functions. 

This transcript has been edited for length and clarity

In collaboration with Alexander Lazović 

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