Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India

Law and Ethics of Human Rights (Forthcoming)

36 Pages Posted: 6 May 2019 Last revised: 9 Jul 2020

See all articles by Tarunabh Khaitan

Tarunabh Khaitan

University of Melbourne - Law School; University of Oxford - Faculty of Law; NYU Law School; Berkeley Center on Comparative Equality Law; NYU Law School

Date Written: April 6, 2019

Abstract

Many concerned citizens, including judges, bureaucrats, politicians, activists, journalists and academics, have been claiming that Indian democracy has been imperilled by the current government in power at the Union level since 2014. To examine the claim, the paper sets up an analytic framework for accountability mechanisms liberal democratic constitutions put in place to provide a check on the political executive. The assumption is that only if this framework is being dismantled in a systematic manner can we say that democracy itself is in peril. This framework helps distinguish between actions that one may disagree with ideologically but are nonetheless permitted to an elected government from actions that strike at the heart of liberal democratic constitutionalism (the first set of actions are reversible when political opponents come to power, the second set of actions make it harder, if not impossible, for such opponents to come to power).

Liberal democratic constitutions typically adopt three ways of making accountability demands on the political executive: vertically by demanding electoral accountability to the people, horizontally by subjecting it to accountability demands of other state institutions like the judiciary and fourth branch institutions, and diagonally by requiring discursive accountability to the media, the academy and civil society. 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. While each elected government has the mandate to implement its policies over a wide range, seeking to reduce the effectiveness of these modes of accountability is legitimately understood as an effort to entrench the ruling party's stranglehold on power in ways that are inimical to the continued operation of democracy.

The paper finds that the Modi government has indeed sought to undermine each of these three strands of executive accountability. Unlike the assault on democratic norms during India Gandhi's Emergency in the 1970s, there is no evidence of a direct or full-frontal attack today. The BJP government's mode of operation has been subtle and incremental, but systemic. Hence, the paper characterises the phenomenon as 'killing a constitution by a thousand cuts'. The incremental assaults on democratic governance have typically been justified by a combination of a managerial rhetoric of efficiency and good governance (made plausible by the undeniable imperfection of our institutions) and a divisive rhetoric of hyper-nationalism (which brands political opponents of the party as traitors to the state).

Unlike paradigmatic examples of the recent wave of democratic deconsolidation -- Poland and Hungary -- India's relatively long experience with democracy has enabled robust, and often successful, opposition to many of these moves. And yet, many democratic norms and mechanisms have been seriously undermined. The direction of travel is unmistakably towards a 'guided' or 'managed' democracy which will structurally ensure the political dominance of the ruling party.

Keywords: Constitutionalism, Democratic Backsliding, Indian Constitution, Indian Democracy, Democratic Decay

Suggested Citation

Khaitan, Tarunabh, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India (April 6, 2019). Law and Ethics of Human Rights (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3367266 or http://dx.doi.org/10.2139/ssrn.3367266

Tarunabh Khaitan (Contact Author)

University of Melbourne - Law School ( email )

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University of Oxford - Faculty of Law ( email )

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NYU Law School ( email )

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Berkeley Center on Comparative Equality Law

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