Ending independence

Topics Supreme Court

What does it mean to have independent institutions, and how do they work? We in India may have forgotten what they look like, but the sight of the UK Supreme Court effectively telling the British prime minister that his only plan to stay in power and deliver Brexit over the wishes of Parliament was illegal. We saw impeachment proceedings begin in the United States against President Donald Trump, following an official whistleblower complaint by a government official against him. Think about this: Not only was there a bureaucrat — according to The New York Times, an intelligence official — outraged enough by Trump’s behaviour that she wished to make an official complaint, but there was also a process by which she could secretly register this complaint, and make it generally known.

In each of these occasions, the executive has been shown to be restrained and constrained by other forces, not directly accountable to the people: in Britain, by the court and in America, by the bureaucracy. Such restraints are central to liberal democracy — but anathema to elected populists, who claim to be the only and purest expression of the will of the people. But such institutions can also work only if at least some directly elected officials do their job of supporting them. In the US, the Republican Party has lined up solidly behind the President, making it unlikely that any impeachment in the lower house of the US Congress will be confirmed by the Republican-controlled Senate. But even the Republicans in the Senate have moved to support the independence of institutions, with the Senate unanimously demanding that, given its role as the body overseeing intelligence, it should have access to the whistleblower’s complaint. And in the UK, the ruling Conservative Party has effectively split, and Prime Minister Boris Johnson has lost his majority, because not all of its members are comfortable with his subversion of the institutional process to enable a no-deal Brexit. 

The crucial difference perhaps between countries where such institutions work and what India has now become is perhaps incentives. What are the rewards to the people within these independent institutions for them to do their job? And what are the rewards for politicians who speak up to protect them? These may not be direct, careerist benefits of the sort that can be easily modelled by economists. For example, many of the Conservative MPs who defied Johnson will leave politics and almost all of them might be forced out of Parliament. However, they will receive the support and approbation of their peers, and a significant section of the public and the media. With the possible exception of the US whistleblower, who has been threatened by the President, they will not be in physical or legal danger. 

That is perhaps the most stark difference from India. Here the incentives for doing your job in an independent institution, or for speaking up in support of institutions, have been consistently undermined not just by government action but by public and media hostility. 

Consider the fact that a former finance minister has been languishing in jail, without bail, for weeks. We do not need to have opinions one way or the other about the strength of the case against P Chidambaram to object to the fact that he has been denied bail when bail is, after all, the default that should be applied. Worse, Chidambaram is a senior member of the bar but there have been few voices within that nominally indepedent group of professionals to speak up in support of his rights. This is the consequence of the weakening of that institution, and of the independence of the legal system. And it will, in turn, further erode independence, as senior legal professionals note the consequences of opposition to the executive, the silence of their peers, and draw the obvious conclusion. Even in the chaos that is Pakistan, a lawyers’ movement once removed a military dictator. In India, lawyers cannot bring themselves to object to the actions of a powerful elected government.

Or consider the news that the only dissenting member of the Election Commission, Ashok Lavasa, is being harassed indirectly by the income tax office. Lavasa objected at least five times to actions of the Prime Minister and the current home minister during the election campaign earlier this year. His was the sole dissent on the Election Commission. Now, in what appears to be almost comical overkill, his sister, wife and son are all being investigated by the income tax office for different transactions. We do not have to have an opinion, again, about the content of the probes to recognise that this is another clear signal about what the incentives will be for maintaining the independence of an institution once you are in it. Once those incentives have been changed permanently, and there is clearly defined danger attached to maintaining independence — with no support from your peers, the media, or the broader public — then independence will remain only on paper, even if the institution itself appears to survive. That is the very definition of a banana republic. 


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