Editor's note: Over the last some decades, power has kept drifting from the political and legislative domain towards the judiciary, statutory tribunals, competent authorities, electronic and digital media, and NGOs and civil society activists, enfeebling the legislature in the process. This article by veteran journalist BN Uniyal examines how it has all come about and what it means for governance of the country.
Where does power to get things done or power to provide relief and redress or power to punish and reward, for that matter, reside in our system today? Who do you go to complain when an apathetic official fails to do his job? How do you stop an uncaring functionary from pursuing a patently nasty scheme? Or, how do you wake up a slumbering bureaucracy or a distant judiciary to action?
There was a time when you would have run with your complaint to your local ruling party or opposition leader, your ward municipal member, or your MLA and MP if you had the right contacts or you were resourceful enough. But what did you do if you weren't? Most likely you took a pen and paper and shot a letter to one of them or, may be, to a top official known for his sense of duty.
But that was a long time ago. What about today? Hardly anyone would act along those lines, for no one today believes it would be any use or worth one's while. Instead, a distressed person will snap a shot of the scene and post it on Facebook or on some such social site, and, eight times out of ten, will surely receive the desired response.
On another occasion, one may as well ring up a TV channel and have a cameraman on the scene within minutes. The grievance would be featured countrywide on the channel in no time with a commentary so acidic that it would burn a hole in the heart of the concerned official. The news clip would in no time send the concerned official, even the local MLA, and MP and the concerned minister scurrying about to announce that the needful had already been ordered, if not already done.
In yet another matter, the aggrieved person or complainant may, instead of calling in the media, choose to move a court of law, even a high court or the Supreme Court, to secure a favourable order which the concerned official may now ignore or sit upon at his own peril. If everything fails, the aggrieved citizen may very well engage a lawyer to invoke Article 32 of the Constitution before the highest court in the land. And, if the matter is absolutely urgent, heart rending, revolting or requiring of instant intervention, a court may take suo motu cognizance of it and call in the concerned parties for immediate hearing and necessary action.
All this time it is as if your local politician, MLA or MP and even the government official had no role whatsoever in the matter. If they make an appearance, it would be only in the last scene of the last act like the proverbial police posse arriving in its hooting jeep moments after the lynch mob is finished with the carnage. The executive represented by a gutless sook will appear last to make belated amends.
Why so? Simply because over the last about four decades or so a major power shift has taken place away from the legislature and the executive to the judiciary, the media, the numerous NGOs and a huge substratum of gun toting politico-mafia operators, the last of whom appear to be factotums of politicians but are their head honchos in reality. They have all chipped away the powers if the legislature. So much so, that the legislature has today been reduced merely to a technicality to pass budgets and bills, mostly without any debate. As a result, the politician and the bureaucrat have both been reduced almost to non-entities.
The judiciary and the media have assumed ever larger-even overarching-roles in our public life. The judiciary was always important as dispenser of justice and interpreter of law, and occasionally, as oblique initiator, though not maker, of new laws. But today courts are there all over in our public life. There is no aspect of our private or public life-social, economic, community, family, gender, sex, food, clothing, education, water supply, garbage collection, traffic arrangement, religion, policing, military recruitment-that can be said to be outside the reach of the courts.
No wonder the courts have become the most powerful and pervasive of the traditional four estates, often overshadowing and, even countervailing, the legislature, the primary estate without which the other two would become meaningless. Courts today order and monitor routine executive (and not all too often even legislative as in the ongoing Uttarakhand crisis) actions. Day in and day out, one keeps hearing of judges issuing all too mundane orders that should lie in the domain of the executive. Some matters which are otherwise not even the domain of the executive, such as, who should wear what sort of dress when going to a temple, are now being adjudicated by the courts. Today, judges are being called upon to rule not only on admission to higher medical colleges but also on enrolments in nursery schools, and even on such ludicrous matters as whether or not hurling abuses is cruelty under a particular law.
Judicial activism, PILs, suo motu cases, judicial monitoring
The term judicial activism first came into use in the US even before our constitution was framed but no note of the concept or doctrine was taken by any member during the debate in the constituent assembly. In India the term came into use only recently, some time in the late 1980s when politicians in power first began expressing concern over the growing numbers of public interest litigations which were seen as encouraging encroachment by the judiciary of the legislative and executive spheres. Even many judges felt upset with frivolous or vexatious PILs, particularly, with those motivated by narrow private, personal and commercial interests. However, PILs have persisted and have now become an extremely important instrument for exposing political and bureaucratic corruption and for containing and correcting executive excesses or heedlessness.
Once PILs had become a legitimate and commonly accepted valid instrument, suo motu action by courts could not have remained far behind. Today, the doctrine of suo motu (of its own motion) or sua sponte (of his, her, its or their own accord) is as commonly accepted, even hailed, as is the institution of PILs. The term and practice of suo motu - most often written as suo moto (which may not be grammatically correct - came into vogue during the first some years of this decade. A friend of mine from Pakistan told me in London some time ago that the term was picked by Indian judges and media from Pakistan where he claimed the term was already in use before it became current in India. Be that as it may, the fact is that the doctrine is recent in our country. It has found so much favour with the public that today, instead of frowning at it as judicial terminological expansionism, even the tallest political leaders from both the ruling and the opposition parties are often heard urging the courts to take suo motu notice or action in this matter or that.
Another recent innovation in law that has further relentlessly hacked at the power and authority of the politicians, legislatures and the executive is the practice of judicial monitoring of ongoing police investigations. Like PILs and suo motu court actions, judicial monitoring of ongoing cases has also grown manifold. These three practices - PIL, suo motu court cognisance of cases and judicial monitoring - often clubbed under the omnibus term judicial activism have together vastly expanded the role of the judiciary in our public life. What began with a PIL under Article 32 in 1979 - Husnara Khatoon Vs State of Bihar - has now changed the very character of Indian democracy. It is as if the constitution itself has been reconstituted outside Parliament.
How has it all happened?
Clearly, such a vast and far-reaching transformation in judicial practice could not have come about without humongous transformations in other spheres of public life. I would say the judiciary has only recalibrated its role in response to changes in the conduct and character of other two estates of our democracy. Judicial activism has often provoked criticism - even extremely hostile criticism - from parliamentarians but not from the public at large. The public has actually hailed judicial activism. The criticism has not daunted even the judiciary. "The most unfortunate part of the scenario," noted a bench in a recent judgement, "is that whenever one of the three constituents of the state, i.e., the judiciary, issues directions for ensuring that the right to equality, life, and liberty no longer remains illusory for those who suffer from the handicaps of poverty, illiteracy and ignorance, and directions are given for implementation of the laws enacted by the legislature for the benefit of the have-nots, a theoretical debate is started by raising the bogey of judicial activism or overreach".
The bench clarified that it was necessary to erase the impression that the superior courts, by entertaining PIL petitions for the poor (who could not seek protection of their rights), exceeded the unwritten boundaries of their jurisdiction. The judges said it was the duty of the judiciary (like that of the legislative and executive constituents of the state) to protect the rights of every citizen and ensure that all lived with dignity. Such a stand by the judiciary would have been unimaginable some decades ago as, for instance, during the Indira Gandhi regime of committed judiciary. Also, without constant chipping away of the powers and authority of the executive and persistent belittling of the legislature due to its own failings we could not have seen the collegiums system being turned down so resoundingly by the Supreme Court last November.
And, yet it is simply over-simplistic to blame the judiciary for overreaching its powers and authority. In fact, it would be patently wrong. One can certainly cite instances of a court here or a court there occasionally over-extending its reach but in such cases correctives have been applied quickly by a higher court. The fact is that it is not the courts that have snatched powers of the legislature or the executive; it is most often the legislature that has ceded its powers to the courts. Often it is the legislature that draws or drags to the court matters which should be sorted out at political level but are not because of inexperience, vendetta and venom. The recent Delhi government case before the Supreme Court on the city's water crisis in the wake of Haryana's jat agitation is a glaring example of total unwillingness to work in a democratic system. And, that is exactly what the highest court observed when it roasted Delhi minister Kapil Mishra on the pit. "Why are you here?" the court asked him, "What are you doing here? You should have been out there working out a solution with the Haryana government instead of trying to score a point here in the court!" What a shame-a cabinet minister of a state government requiring to be scolded like a truant school boy.
It is such conduct of politicians that has disparaged and disgraced them in the public eye.
Media: Ringmaster, censor, roaster, rescuer, defender
The politicians' power, reputation and image have been further besmirched by caterwauling anchors of the legions of our TV channels who often roast, squelch and kibosh political party spokespersons on their shows as if they were worms. Nothing has soiled the image of the politician as have the TV debate shows. The merciless damning and battering, the teasing, taunting and jibbing and ridicule to which these spokespersons are subjected to often feels worse than public flogging in some countries. Sometimes all this becomes so disgraceful and demeaning that one must switch the TV off for sake of one's nerves and sensibilities. Yet, most people feel that that is exactly what politicians deserve because they looked down upon by one and all in the country today. Yet, what gets besmirched in the process are not a few individual politicians but all politicians as a class and, as a politician is commonly seen representing a legislature, what gets disparaged at the end is thus the legislature itself.
Today's TV anchors act like public tribunes, ringmasters, censors and roasters all dressed in one. If they get away with all their ballsy putdowns, it is simply because audience delights in the fourth degree treatment meted out to the captives in the TV studios. No one can dispute that the constant exposure to the mass media has pulled politicians down many notches on the political totem pole during the last some decades. Respect is a difficult word to append to a politician's name today, and politicians know it well. They often bemoan that the very word politician has become an anathema and even a hate word among the common people but they just do not know what to do about it. They know the public despises them and suffers them only because no system cannot run without the political class. What is interesting is that the people know that as well. That is why they come out in such large numbers to cast their votes during election time. "Well," they seem to say,"we can't do without them but we certainly can kick them in and out every five years." And, in between two elections, why not enjoy seeing them roasted on TV channels or disparaged in court rooms? The pleasure is vicarious and reminiscent of Roman ludi circenses (spectacular chariot races) but it is, nevertheless, fun and some solace too.
Instant messaging, social media, redundant politician
During the last three years social media has emerged as yet another power grabber. Young people were hooked on to the social media even before but it is Narendra Modi who first made social media mainstream. So much so that now even TV channels have sat up and are constantly monitoring what is trending there. A lot of news now flows from social media to TV channels, from TV channels to news portals, and from news portals to the print media. The print media is actually becoming increasingly redundant, if not irrelevant, as far as news is considered. Politicians now monitor smart phones for latest news and spend more time fiddling with these than they do with their morning newspapers. The more resourceful of them have teams of young e-savvy monitors following every bit of social news and passing these on quickly to their masters for necessary action, if any. So, whoever today has a complaint against a policeman, a municipal official, a goon or a goonda rushes to the social media or a TV channel and not to an MLA or an MP or a senior official because he knows how little a say in the matter they have. A complaint through TV reaches the concerned authority faster than one raised through a legislator. TV, assisted by the social media, has now become the real champion of social causes, of the poor, the oppressed and the victimised. Even the police and the politician want the news of an incident to first appear on a TV channel to give a justification for their punitive action or reward as they fear their action may otherwise be misunderstood as partisan or favouritism by the common people.
As a result, the role of the politician and, consequently, of the legislature as a communicator between an aggrieved citizen and a government authority-an official or a minister-has almost evaporated. There was a time when people used to throng the houses of legislators with bunches of questions and with requests to get their matters of urgent importance raised in the assemblies and parliament. Question hour, calling attention motion and special mention were once the only instruments for venting public grievances. Today hardly anyone bothers for them. I wonder how many of the young generation are even aware of such legislative instruments. These instruments have little relevance to the times we live in where every grievance demands instant redress. An assembly or parliament that meets once every three or four months, often for only a few weeks which are all so often wasted away in riotous wrangling over non-issues cannot meet the needs of an instant age.
Why wonder then if the legislature seems no longer germane to our lives today.
The reason why the affairs have taken this turn is basically that the politicians during the last some decades have failed themselves, the country and the people. Horrendous corruption, shameless loot of public money, appalling self-aggrandisement, extreme arrogance of power, persistent misuse of authority, indifference to the problems of the suffering people, unwillingness to take unpopular decisions, timidity in the face of obstacles and brashness in committing oppression, and many other such and similar causes have demeaned the profession of politics. Power cannot stay for too long in such hands in any system, particularly, in a democracy like ours.
NGOs, parallel power centres, antagonists, foreign funding
NGOs came to be grafted onto the Indian socio-political system some time in the 1980s from the British Quangos ("quasi-autonomous non-governmental organisations) which were first encouraged by the Labour Party there mainly to foster its fringe organisations by providing government funding. Early organisational support and funding was ploughed in by numerous foreign organisations. Various American agencies of rather doubtful origins flush with funds from intelligence agencies were the first on the scene. The Peace Foundation was, perhaps, the first. Ford Foundation was yet another. In my time as a Leftist newspaper reporter we hunted organisations funded by these organisations but today's Leftists feel no embarrassment in tapping them for funds. But that is a different matter. NGOs were not called so those days but voluntary organisations, and were fewer in number, limited in scope, short of funds, and not as corporatized as the one's we have about us today.
Today's NGOs are different. One, they are numerous in number. Two, they-at least, large numbers of them-are flush with funds, enough to enable their head honchos to travel first class to foreign countries dozens of times a year and stay deluxe during travels. Third, they have large domestic donors too, most of them big corporate whose vested interests they often serve. Four, they function from posh offices, employ large and highly paid staff, hire top lawyers when needed, frequently dine and wine media bosses, presenters and anchors, and often load them with costly gifts. (I must here admit that I too have occasionally benefitted from their largesse). And, last but not least, as the saying goes, some of them are so resourceful that they even hire lobbyists, PR agencies and image makers when they so need. It would be incorrect to paint all or every NGO with the same brush but the picture I have painted is true of many, if not most, of those one comes across in cities like Delhi.
These NGOs have power in that they mould public opinion not only for causes they espouse but also for or against political parties they happen to be in conjunction or conflict with. They wield power in that they can rouse the people for or against a government proposal or project and stall or hasten - mostly stall - work on government schemes by dragging matters to court or by organising agitations. The ruling regimes often claim that this is done at the best of vested interests, both domestic and foreign. This may not be true always, but often is. Many government schemes have been frustrated by such agitations and court cases launched by various NGOs. To that extent the power of the legislatures and the executive has been curtailed.
The balance of power and its structure in the system have both changed drastically in other ways too. The chessboard is no longer the same as we had hitherto known. Neither are the pieces of the game the same, nor the moves. Actually, the very theory of the game is no longer the same as before. These changes on the power chessboard have not come about overnight. They had been in the making a long time. The earliest sign appeared in the late 1960s when the Congress monopoly on centre and state power centres was broken under the onslaught of many new social and political alliances which eventually fragmented the unitary power system. As a result, today nearly half the country is ruled by political parties that are really not public political parties but private parties of individual leaders like what once used to be called private armies. This power shift has cracked the system and, though different types of coalition arrangements have been tried to keep the ramshackle federal structure to move on, a new, effective and result-oriented balance of power is yet to emerge.
Thought, history, religion
The early years of the republic began with the idea that what should matter now is not the past but the future, not history but economic development, not religion but science, not orthodoxy but a new openness, and so on and so forth. We had groups and parties with sharp edges on both the Right and the Left of the political spectrum but their brambly tips were soon smoothening out.
Today, however, it all feels so divergently different. Thought has fallen by the wayside and history, distant history, almost from as far back as the stone age, has pushed thought aside and taken over the centre stage of the nation. The belief that thought could mould our outlook and attitude towards history has faded out and it now seems history must remain resurgent. Science is all about us, of course, but no longer in the mainstream of national consciousness and the idea of scientific temper is hardly heard in any circle now. Over the last some years, religions have become increasingly rivalrous. Modi's strident style of politics is, of course, one reason but cannot be the only reason. Possibly, his stridency itself is the result of a certain intolerance that had been building in the system earlier. Altogether, history and religion have become the real moving powers today.
There are yet other ways in which power and authority once centralised in the hands of the legislature and the executive of the day has been eroded or fragmented like the creation of numerous different tribunals, commissions, authorities, etc. The utility of these innovative instruments has not been studied or assessed at any length or in depth yet. They seem to be almost free from any detailed parliamentary scrutiny, though they are funded from the consolidated fund approved by it.
It will be interesting and useful to study this power shift in the system, the dilution of the role of the legislature, particularly, of the professional politician in public life, and the emergence of new power centres around us. All this is relevant because politics and the political system of the country are fast reorganising themselves in ways whose far reaching implications will affect the future of the country significantly.
In the meantime, governance has suffered at all ends and in all spheres of national life. The predicament of the executive is, perhaps, the worse today. It is true that bureaucracy works most efficiently when run with clear cut rules but clear cut rules alone are not enough for it to work effectively. Bureaucrats and their decisions and actions are also affected much by the impulses flowing in the system from different quarters. If these impulses are not in harmony or synchronised at some higher level of thought or theory, bureaucrats are sure to get disoriented like a robot whose wiring gets tangled up. That is what seems to have happened as a result of the power shift in the system described above.