Surrender of the Institutions
Public institutions such as the courts and media, guardians of our civil liberties, have faced unprecedented obstruction and bullying
ON NOVEMBER 15, 1948, India’s Constituent Assembly rejected an amendment proposed by K.T. Shah (Bihar, General) to Article 1. It read that ‘India shall be a Secular, Federal, Socialist Union of States’. He was told that the Constitution is but a mechanism for the purpose of regulating the work of the various organs of the state. “It was somewhat new to me,” responded K.T. Shah “to hear that a Constitution is a mechanism…and that any desire to include in it any aspiration of the people might be regarded as somewhat out of place”.
But the incorporation of aspirations is not enough. Citizens have to be protected against the fatal tendency of all governments to wield awesome power. The Constitution, thereby, institutionalised power, established procedures to regulate its exercise, set up checks and balances, and granted fundamental rights. Between the citizen and the government stand a system of mediations—processes, procedures, practices and institutions.
How have these mediations fared over the last decade? Consider the 2018 Global Democracy Index published in January 2019 by the Economist Intelligence Unit. The index ranks 167 countries on 60 criteria that fall under five categories: electoral processes and pluralism, functioning of government, political participation, democratic political culture and civil liberties. India is placed in the 41st position. It is a ‘flawed’ democracy.
The report offers a damning indictment of institutional mediations that watch over vulnerable citizens. Take civil society. During the 10 years the Congress-led United Progressive Alliance (UPA) ruled the country (2004-2014), civil society organisations played a major role in ensuring access to social goods: the right to work, information, primary education and food. CSOs resisted, protested, advocated and enabled entitlements to social goods.
When the Bharatiya Janata Party (BJP)-led National Democratic Alliance came to power in 2014, it became clear the government had neither time for, nor any patience with, civil society activism. Accounts were frozen, and income-tax authorities conducted raids on prominent human rights organisations, civil liberty movements, anti-nuclear groups and associations that dared question the government. Since 2014, licences of about 20,000 organisations have been cancelled under the Foreign Contribution Regulation Act. Prominent human rights activists have been jailed on unsubstantiated and insubstantial evidence.
NGOs are entitled to receive funds from foreign partners and donors, provided they prac
tise transparency and accountability. Many civil society organisations hold consultative status with the United Nations and other global organisations. To harass them on this count, and pillory them in the court of public opinion is palpably unjust. The intention is to delegitimise and disarm civil society, which monitors and makes public abuse of power. Civil society is an indispensable aspect of democracy because it recognises the political competence of ordinary citizens to participate in political processes apart from elections. Today, civil society is harassed and starved of funds. Citizens have been rendered vulnerable and deprived of the right to social association and to life and liberty. There has reportedly been a 400 per cent rise in hate crimes since 2014. Civil society is threatened, and most organisations are reluctant to raise their voice.
Citizens are further at risk by a greatly weakened visual and print media. With a few honourable exceptions, we see the almost complete silencing of the media. This media is an arm of civil society. It should practise eternal vigilance, contribute to the making of informed public opinion, and speak back to power. When it exposes human rights violations or abuses of power, a vigilant media brings political power to its knees. It can cause dismissal of elected governments. The media played a large role in the defeat of the UPAII government in 2014. Since then, notable sections of the media have lapsed. They participate in the making of a leadership cult, attack dissidents as anti-national, cast aspersions on a legitimate opposition, and reduce democracy to election results. Whatever be the cause—ownership by giant corporates or threats posed by the government— the media has forgotten it is responsible to citizens. It has become a handmaiden of the state. More significantly, the media has prevented the fashioning of a level playing field for all political parties. This truncates the right of the voter to choose from competing programmes of different political parties. Media houses that defy diktats are slapped with defamation cases running into hundreds of crores; the media has been brought to heel. Who will speak for us?
State institutions that are expected to keep watch on governments and protect civil liberties, such as the Supreme Court, have to deal with unexpected obstructions and bullying from those who pace the corridors of power. A few years ago, it became evident that citizens preferred to fight their battles not in Parliament but in the Supreme Court. The court, intent on reclaiming its image after a disastrous record of support for the Emergency, was reassuringly supportive of social legislation and deeply protective of civil liberties. During the last years of UPA-II, the Supreme Court played a significant role in exposing corruption, upholding the autonomy of the Central Bureau of Investigation and defending transparent procedures. Interestingly, liberal democrats have always given an unelected judiciary precedence over elected legislative assemblies. The latter can be swayed by popular emotions, they argue, but the judiciary casts a cool and sane voice of reason over decisions that impact the lives of individuals and collectivities.
Since 2014, the court has had to engage in several battles with the government. The first major confrontation arose over the elevation of the eminent lawyer Gopal Subramanium to the Supreme Court. Chief Justice R.M. Lodha was attacked on personal grounds and he had to withdraw the nomination. The government moved the 99th Constitutional Amendment Act to appoint a National Judicial Appointments Commission to recommend elevations to the court. The Collegium was rendered redundant. In October 2015, a Supreme Court bench struck down the amendment as unconstitutional. The late Arun Jaitley termed the act as the ‘tyranny of the unelected’.
The government has repeatedly stalled recommendations of the Collegium. Vacancies in various courts remain unfilled. In January 2018, four senior judges held a press conference and practically warned citizens that democracy was imperilled. A number of judges were recused by the Chief Justice from hearing controversial cases. Against this background of intimidation, the court has to decide contentious issues involving rights of refugees, the National Register of Citizens and the lockdown in Kashmir. It is against this background that we should see the recent verdict in the Ayodhya issue. Court decisions have been challenged by political entrepreneurs in Sabarimala. They instigated crowds to defy the ruling of the court that women should be allowed to worship in the shrine. The court has been compromised, the individual left defenceless.
After the 2019 election, Parliament is completely dominated by the BJP. Controversial laws are being rushed through both Houses with indecent haste. The opposition has still to recover from the election verdict. The citizen is rendered still more vulnerable. ‘Though nothing can be immortall, which mortals make; yet, if men had the use of reason they pretend to, their Common-wealths might be secured, at least, from perishing by internall diseases,’ wrote Thomas Hobbes in his Leviathan. These words might have been written for India. ■
THESE HAVE BEEN TURBULENT YEARS for the Supreme Court. The rumblings in court erupted in a press conference when, on January 12, 2018, four of the seniormost judges charged that “of late… cases having far-reaching consequences for the nation and the institution had been assigned by the Chief Justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment”. They charged that cases were being taken away midway through the hearing and handed over to handpicked judges. In other words, four judges in the collegium were accusing the then CJI of bench-fixing.
The National Judicial Appointments Commission was struck down in 2015 with an extraordinary provision for a Memorandum of Procedure between the government and the court to deal with the fraught issue of appointment of judges. This has reached a stalemate.
An essential attribute of the court is that it is ‘countermajoritarian’, and a majoritarian government has posed challenges to the court at every turn. The Constitution is about the rights of the people, and it is about the limits of the power of the state. The court has had its work cut out on both counts. Delay is endemic in the judicial process, but delay amidst seismic shifts in the exercise of power by Parliament and the executive State puts in question the efficacy, the very legitimacy, of the court.
It is a well-worn saying that the Supreme Court is not final because it is infallible, but infallible because it is final. Reopening questions decided by Constitution benches, as happened in Sabarimala and Puttaswamy II (the UID/ Aadhaar money bill case), in little over a year tempts the cynic to say that the Supreme Court is neither infallible nor final.
The court has been confronted with practices rooted in patriarchy, such as in the Sabarimala and Triple Talaq cases, but constitutional confusion continues to prevail in the court, as seen in the Sabarimala reference to a larger bench.
The tortuous course of the litigation to decriminalise homosexuality reached its terminus in September 2018. It was in the privacy judgment, in August 2017, that the countermajoritarian responsibility of the court was reiterated. ‘The guarantee
of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion’, it said. Returning to the position where homosexuality is no longer an offence was inevitable after the privacy judgment.
The Section 377 litigation has propelled the concept of ‘constitutional morality’ into the language of the law, establishing its distinctiveness from ‘public morality’. It’s a promising idea but one that needs protection from death by dissipation or overuse.
The privacy judgment, in which nine judges unequivocally reinforced privacy as a fundamental right, traces its beginnings to a claim by the Attorney General that took our breath away: that the people of this country do not have a right to privacy, not more than the government and Parliament were willing to give us anyway. In our constitutional scheme, it is a duty cast on the State to protect, and expand, our rights and freedoms. That is one reason it exists. So, to have an Attorney General claim an erasure of a right—which, as the judgment later held is an ‘inalienable natural right’, necessary to protect the ‘innate dignity and autonomy of man’— was indeed extremely significant.
The matter of privacy came up in the case challenging the UID project, and the judgment held that our constitutional rights cannot be waived. We may or may not exercise them, but we have them anyway, all of us. The UID majority judgment, scripted by Justice A.K. Sikri, thought otherwise. The poor, he wrote, and I paraphrase, need not privacy but the dignity offered by food, shelter and employment. The privacy judgment sees it differently: ‘The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.’
There are matters that brook no delay. The arrest and detention of hundreds in Kashmir has carried on for months now, and yet the court has, inexplicably, practised restraint, giving the government more and more time, it is not clear to do what. Likewise, there is inertia in dealing with the suspension of telephone and internet communications in Kashmir, again for months, and again acceding to the government’s demand that it be given the time it wants. Putting off the hearing on the challenge to the legal fictions created in Article 370, the decision to downgrade a state into Union Territories, the unilateral casting aside of the J&K constitution and making a challenge practically impossible by allowing the creation of a fait accompli are inexplicable, except as extraordinary deference to the government. It is this kind of treatment of the people, and the State, that has prompted comparisons with the habeas corpus case during the Emergency, when the court upheld the government’s position that mass detentions, even the taking of life, could occur and the court should stay silent, thereby becoming complicit.
The ghost of the Emergency threatens to settle on the NRC process. The unsettling of the very idea of citizenship, the unhidden intention to seek and find people to exclude, the communalisation that has been the inevitable consequence is written into this intervention, and the first Act of this play, enacted in Assam, had then CJI Gogoi in the role of sutradhar. When state action produces vulnerabilities and violations, we can go to court. When it is the court that is propelling the exercise, where do people go?
The Ayodhya judgment may provide a manner of finality to the dispute, but its internal contradictions refuse to disappear. Having decided it was a property dispute, and having held that it could not be decided as a matter of faith or belief, how did it slip into becoming a matter of the Hindus’ faith? The court found no evidence that the mosque had been built on a temple. It called the installation of the idol of Ram in the mosque an act of ‘desecration’, and the demolition of the mosque a criminal act. It considered a division of the property ‘legally unsustainable’ and not ‘feasible’ ‘even as a matter of maintaining public peace and tranquillity’. And, holding that the Muslims hadn’t established their claim, the court handed the entire land to the Hindus. If this was a compromise, it was plainly not countermajoritarian. If the judgment stays, and the temple is built on that land, it may be a strange quirk of history that the temple will be built where a mosque was demolished.
WHEN STATE ACTION PRODUCES VULNERABILITIES, WE CAN GO TO COURT. WHEN THE COURT PROPELS THE EXERCISE, WHERE DO PEOPLE GO?
IN2010, MARK ZUCKERBERG beat the likes of Julian Assange and Hamid Karzai to become Time magazine’s Person of the Year. At the time, Facebook was six, and Zuckerberg, 26, both young enough to be cute. We asked Zuckerberg innocent questions then: Does social media impact reality or does it reflect it? Can we become ‘addicted’ to Facebook? Will social media make us asocial? Today, however, Mark Zuckerberg is being forced to answer questions less innocuous. Did Facebook help Donald Trump game the 2016 presidential election? Is our data safe with him? What has he done to curb online hate?
At the point of their inception, social media platforms like Facebook, Twitter and Instagram heralded a new optimism. If all of us were using the same apps on similar smartphones, surely the world would flatten. Our religious, political and cultural differences would betray themselves as constructs, and we’d learn how to live in a brave, new world, one where we ‘liked’ more, shared much and hated less.
Sadly, this dream has soured over time. In 2014, we chuckled when Barack Obama took the Ice Bucket Challenge, but only a few years later, our concerns had darkened. We were now worried about the Blue Whale Challenge, a social networking game that goaded participants to self-harm, persuading them to commit suicide. The Arab Spring, in 2012, made us believe that social media could help spread democracy in the world, but by 2018, we had proof that Facebook was actively undermining it instead.
If we had to plot the recent history of social media on a timeline, the most significant event would undoubtedly be 2018’s Cambridge Analytica scandal. Already fighting charges that it enabled Russian operatives to wage misinformation campaigns in the build-up to the 2016 presidential election, Facebook, it transpired, had also exposed the personal data of up to 87 million users to a researcher at Cambridge Analytica, a political consulting firm employed by the Trump campaign. Trump’s team is said to have used Facebook’s data to influence its core supporters with ads that escaped due scrutiny.
In 2018, after news of the Cambridge Analytica scandal broke, Facebook shares fell more than 24 per cent, and in the process, the company lost $134 billion in market value. Zuckerberg assured us that Facebook’s security protocols would be beefed up, but the real damage had been done. For users, Facebook does what it always has. We use it to seek approval, to post holiday pictures and stay in touch, but for businesses, Facebook does something altogether extraordinary. It allows them access to our preferences and sudden desires. Companies can now even bid for the data of our online activity.
Advertisers, of course, have helped create Zuckerberg’s $500 billion empire, and it’s understandable as to why the Facebook CEO would reserve the best of his innovations for them. But for the rest of us, influencing the way we shop is one thing, and influencing the way we vote is entirely another. While Twitter has now banned political advertising, Zuckerberg insists that “it is not for private companies to censor politicians or the news”. In his staunch refusal to verify the information Facebook circulates, Zuckerberg again wants us to see him as only a messenger. “Shoot the sender, not me,” he seems to be saying. His subtle plea for immunity gets further legitimised by the
democratic tenet of free speech. While the world now asks Zuckerberg to behave like a responsible publisher, his defence hinges on two arguments. Firstly, he claims, Facebook is not a publisher, it only allows its users to publish what they desire. Secondly, and more importantly, the fault does not lie in Facebook, but in ourselves. Having been given technology that enabled connection and communication, we have used it to bully, foster anxiety and spread contempt. Umberto Eco was possibly being clairvoyant when he referred to social media as “an invasion of the idiots”, but idiocy really doesn’t begin to cover threats of violence. Last year, it came to light that not just were rumours of cow slaughter, child abduction and organ harvesting doing the rounds on WhatsApp in India, people were acting on this misinformation and lynching those they suspected. Ravi Shankar Prasad scolded Facebook—“Tackling fake news is not rocket science”—but the owners of WhatsApp had only cosmetic solutions. Asking Indians to be more responsible, they seemed to argue that while they had produced the gun, they had not pulled the trigger. In October this year, the Indian government announced that it will make stricter its regulation of social media apps because they are causing an “unimaginable disruption to the democratic polity” of the country. The Centre told the Supreme Court that platforms such as Facebook, Twitter, YouTube, TikTok and Instagram ought to be liable for the content shared by their users. This is a slippery slope.
If Facebook had been forced to verify the posts of every user, the #MeToo movement would never have become the wildfire it did. Social media, in India, especially, gave victims a community, their confessions a legitimacy, but strangely, it also enabled their intimidation. Having found the courage to out their harassers, they were now being threatened with rape by misogynists they had never seen.
Some critics of social media blame us, its users, for being too “addicted”, but what these well-meaning mental health champions often fail to take into account is that with time, Twitter, Facebook and Instagram have almost eliminated the possibility of an elsewhere. This is who we are now, and this is how we speak to one another. We will not learn to abjure hostility outside Facebook and Twitter. There have to be ways of countering hate from inside these now unavoidable and necessary platforms. The travails of X make for an apt case in point. A social media influencer, X is followed by a few thousand people on Facebook and Instagram. People take her make-up tips seriously. Her YouTube reviews of Friday releases are quirky, funny and irreverent, and these in part, help bolster her celebrity. At times, though, X reposts some of the comments her videos get on social media. Last week, she alerted her followers on Instagram to what someone irked enough by her reviews had to tell her, “I will pray from [sic] God that you should be gangraped just like Priyanka Reddy and burn alive [sic].” Having read this, the more conservative amongst us might ask X to get off social media, but that, as I’m sure she will tell you, is not an option—her livelihood depends on it. Her predicament is also common. Several others like X—all vocal, strong-minded women—are similarly threatened on Twitter and Facebook every day. ‘Trolling’ seems too scanty a word. It fails to encompass the quantum of malice that some of India’s 351 million social media users direct towards those they think of as the other. Yes, Facebook and Instagram have surely encouraged a new spirit of entrepreneurship, and Twitter has enabled a wider participation in public debate, but all three have neglect to answer for. If these companies don’t find a way of eliminating hate and misinformation from their platforms, external regulation will be the only answer. Mark Zuckerberg should know that the doors to heaven and hell on social media are adjacent and identical. It is his task to ensure that the second remains padlocked.
THIS DECADE HAS BORNE WITNESS to the startling transformation of the coolest idea into the most dangerous. Social media was hailed as unalloyed good, a means of sharing news across borders, giving ordinary people access to potentially vast audiences. From the vantage of the latter half of the decade, though, social media is a cesspit of bullying, groupthink and canard. And what is there left to say about fake news? About lies and rumours and deliberate sabotage in order to influence voters and elections? Oh well, hooray for memes and streaming.