Is India witnessing an assault on constitutional norms?
Whatever else can be said about the shambolic disaster that is Donald Trump’s stubbornly delusional refusal to acknowledge the loss of this month’s US presidential election, there’s no doubt American courts are holding strong against his multi-pronged assault on the constitution.
At the time of writing, Trump’s fleet of advisors had lost 25 cases (there was also one minor victory) in a raft of lawsuits alleging “nationwide voter fraud.” Despite immense pressure from the most powerful bully pulpit in the country, judges appointed by both Republicans and Democrats refused to proceed due to lack of evidence.
All this has profound implications, far beyond one election cycle. What we are witnessing in action is that US institutions can still function. The checks and balances built into the country’s 244-year-old political system are capable of working as intended. American democracy might be limping, but is still not dead.
Closer to home, the vital signs are nowhere near as optimistic. Just over the past few days in India, there have been several separate red flags about judicial independence.
Writing in Indian Express this week, the renowned scholar Pratap Bhanu Mehta noted: “The Indian Supreme Court was never perfect. It has had its dark periods before. But the signs are that it is slipping into judicial barbarism.”
Mehta explained: “The term ‘barbarism’ has several components. The first is the overwhelming appearance of arbitrariness in judicial decision-making. The application of law becomes so dependent on the arbitrary whims of individual judges that the rule of law or constitutional terms no longer have any meaning. The law becomes an instrument of oppression.”
In addition: “The court also becomes excessively concerned with its version of lese majeste: Like a sacred monarch, the court cannot be seriously criticized or mocked. Its majesty is secured not by its credibility but by its power of contempt. And, finally, there is barbarism in a much deeper sense. It occurs when the state treats a section of its own citizenry as enemies of the people.”
This is an acutely accurate description of what’s happening in India, alongside assaults on constitutional norms in many countries, from the Philippines to Brazil to Turkey, as well as within Europe.
Still, Mehta says: “We should not mistake the distinctiveness of the current moment. Patriots like Sudha Bharadwaj or thinkers like Anand Teltumbde are being denied bail. Umar Khalid was given a minor relief in being allowed to step outside his cell but the fate of so many young student anti-CAA protestors remains uncertain. An 80-year-old social activist who is suffering from Parkinson’s was denied a straw [and] hundreds of Kashmiris were detained without habeas corpus redress.”
Even worse is likely. Mehta warns: “As state after state is now contemplating legislation on ‘love jihad,’ a communally insidious and infantilizing construct, watch how the judiciary abets in legitimizing this newest assault on liberty.” Inevitably: “What starts as a selectivity on civil liberties will slowly creep into the ideological foundations of the state.”
An illustrative example of these convergent phenomena is unfolding just across the Sylhet border in Meghalaya.
Back in July, the award-winning Shillong Times Editor Patricia Mukhim posted on Facebook about a masked attack on “non-tribal youth” (read “Bangladeshi”) in the village of Lawsohtun. She wrote: “The fact that such attackers and trouble-mongers since 1979 have never been arrested and if arrested never penalized according to law, suggests that Meghalaya has been a failed state for a long time now.”
The village council claimed she was picking on them, and what followed was entirely unnecessary: The police filed a case against her for defamation and “promoting enmity” and the judiciary has concurred, saying she “sought to create a divide to the cordial relationship between the tribal and non-tribal.”
Mukhim told Scroll.in: “I find this observation of the Meghalaya High Court rather strange considering that just before Durga Puja this year, the Khasi Students’ Union has gone on a postering spree in the city.” The posters said: “All Bengalis in Meghalaya are from Bangladesh.” This is an imputation that all the Bengali residents of Meghalaya or its capital city Shillong are illegal migrants. This has been the eco-system under which non-tribals live in Meghalaya.
Earlier this week, Mukhim withdrew from the Editor’s Guild of India, which ignored her persecution, even though it responded with remarkable alacrity to the (far less meritorious) case of Arnab Goswami, the regime’s favourite rottweiler-style mouthpiece.
This indomitable one-woman bastion of democratic values, and irreplaceable role model for journalistic integrity, told Scroll: “What must be said has to be said. One cannot be too guarded when one is in the pursuit of truth. I know that truth has many facets but in journalism one must try and find that truth in what is for the greatest good of humans, especially the voiceless and powerless. We have to give voice to the underdog and if in doing so the high and mighty are ruffled, then so be it.”
Vivek Menezes is a writer based in Goa, India.