A purposeful democracy? Or plain small?

What have the last 40 days revealed of the character of the Indian state and, therefore, of the democracy we practise?

This morning, as the lockdown is relaxed somewhat, could be a good time to address a question that many of us have deliberately pushed to the back of our minds. What have the last 40 days revealed of the character of the Indian state and, therefore, of the democracy we practise? My answers are first thoughts. I’m not irrevocably committed to them but they are useful starting points.

We have a Prime Minister capable of tough decisions taken with little hesitation. That’s precisely what happened when the lockdown was announced on the March 23 with less than four hours notice. In a pandemic, swift and stringent action is necessary. I have little doubt it reduced the rate of spread and bought us critical time to prepare. A less self-confident person or a more reflective politician might have acted differently. This one decisive action made our state look strong, our democracy purposeful.

However, in handling the inevitable consequences of the lockdown ,our state showed itself in a very different light. It seemed to forget the daily wage-workers, the rural landless labour and the unemployed from the unorganised sector. Its response to their plight was slow, minimal and utterly unfeeling. And remember, together they are the vast majority of the Indian people. Yet both in declaring an immediate lockdown and, then, in attempting to alleviate its suffering, they did not seem to matter. That made our democracy look small, limited and irresponsible.

What is perhaps more surprising is our Supreme Court also turned its back on those the lockdown left destitute and starving. The criticism of the government is well-known but a recent critique of the Court by Prashant Bhushan is dismayingly revealing. It suggests the eyes of justice can be blind to the poor and the vulnerable. Let me go into this in greater detail.

Let’s start with the way the Court responded to the right to life of migrant workers. They are destitute, starving and desperate. Hundreds of thousands, if not millions, tried to walk back to their villages. A petition regarding their plight was first moved on March 31. Thereafter, for one reason or another, the government was given additional time and new hearings scheduled. Finally, after three weeks, on April 21, the Court disposed of the petition with an anodyne and tepid request to the government to “take such steps as it finds fit to resolve the issues raised in the petition”. Is this an acceptable way of upholding the right to life of Indian citizens?

In an interview to The Hindu, Chief Justice Sharad Arvind Bobde gave this explanation for not defending fundamental rights: “This is not a situation where declaration of rights has much priority or as much importance as in other times.”

Let’s now come to the sense of priority the court has shown in terms of what it immediately hears and what it defers. Whilst cases to do with the right of migrant labour, stranded in shelter homes, to return to their villages have been deferred to May 27 and the cases to do with NREGA payments will only be heard “two weeks after the lockdown is over”, a petition filed by Arnab Goswami seeking protection from multiple FIRS was heard within 15 hours.

This is how Chief Justice Bobde defended the Court’s prioritisation: “The courts are doing their best to cope with the situation, in particular they are selecting and prioritising matters they must hear.” That suggests Arnab Goswami is important but NREGA payment for the destitute is not.

Prashant Bhushan’s critique ends with a quotation from a recent judgment by the High Court of Malawi. It’s what the people of India wanted to hear from our Supreme Court but did not. I’d like you to read it carefully. If nothing else it proves mighty, India can be shamed by little Malawi.

“The judiciary is enjoined by... the Constitution to ensure that the rule of law is upheld at all times, be it before, during or after the state of emergency... has been declared. The Court is perfectly entitled to enquire into the legality of measures taken by the State in response to a state of emergency... A declaration of a state of emergency... does not give the state carte blanche to exercise power indiscriminately. The substantive and procedural limitations imposed by the law have to be observed.”