Giving Form to a Shapeless Threat: Tarun Khaitan’s Work on Democratic Decay in India

[Ed Note: We are hosting an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative. We will be discussing Professor Tarunabh Khaitan’s article, which he introduced here. More information on the symposium can be found here. This post is the first response in the series, by Professor Tom Daly.]

I want to say that it gives me great pleasure to contribute to this timely Blog Symposium honouring the path-breaking work of my colleague and friend Tarun Khaitan, but in truth, I wish that his work was not so necessary. I wish that the threats to Indian democracy that he has so forensically laid out in his landmark article ‘Killing a Constitution with a Thousand Cuts’ were not real, and had not intensified since that text was finalised, especially during the COVID-19 crisis. I wish that India had not joined the ranks of states worldwide suffering acute democratic decay – including the three other biggest democracies in the world: the USA, Brazil, and Indonesia.

In my short tribute I simply wish to illuminate how Tarun has not only provided a systematic account of democratic threats of profound importance to democrats in India, but has also enriched the global conversation by building a bridge between the Indian context and other country contexts, and fine-tuning our understanding of the phenomenon of executive aggrandizement in highly valuable ways.

I should start by noting that I have had the privilege to watch Tarun’s thinking develop in real time, from the beginning of his tenure as a Future Fellow at Melbourne Law School in 2017 to the present day. Between running a reading group together on democratic decay in 2018, presenting together at conferences, hosting him as a distinguished speaker at the launch of the Democratic Decay & Renewal platform (DEM-DEC) 2 years ago, and at a conference on the future of democracy in New Delhi last year, I have seen him turn his profound analytical skills to this central question for India and the world: is liberal democracy under threat in India, and if so, what is the nature of the threat?

Of course, even three years ago the idea that India was undergoing a negative transformation under the rule of the BJP – whether we call it democratic decay, backsliding, autocratization, or otherwise – was still hotly contested.  Certainly, it did not seem to map on to the most clear-cut ‘masterplan’ cases of democratic degradation, epitomised by the Hungarian experience (and the Venezuelan experience before it): namely, a democratically elected government systematically dismantling the democratic system by diminishing or capturing all independent institutions (especially courts), limiting the space for opposition actors to organise, and interfering with the election process itself. And even assessing the threat in these contexts still required a real command of the detail to identify the cumulative and mutually reinforcing effects of multiple measures. Like a physician diagnosing a syndrome, or a detective seeking out a fuller pattern from multiple clues.

Indeed, in 2017, having included India in a policy piece on democratic decay for an international organisation, I was advised to switch the Indian case-study out for another country as the evidence was deemed too tenuous: all I could cite, in terms of published research, was disquiet expressed by leading democracy analysts inside and outside the country after PM Modi’s 2014 achievement of the first single-party parliamentary majority in the Lok Sabha since 1984. Soul-searching about the trajectory of Indian democracy was still being formulated as a question. As Eswaran Sridharan put it: “Has India turned its back on the inclusive, secular centrism that Congress represents and opted for a Hindu-nationalist majoritarianism widely seen as hostile to India’s Muslim and Christian minorities?”

Outside India, in 2015 the leading democratisation theorist Alfred Stepan raised the potential for “democratic erosion”, pointing variously to the BJP’s parent organisation Rashtriya Swayamsevak Sangh (RSS) as an “anti-Muslim, Hindu-nationalist, occasionally uniformed and stick-bearing mass movement that has often been called semi-fascist”, to Modi’s inertia in the face of anti-Muslim riots in Gujarat in 2002 under his governorship, to growing Hindu nationalist agitation, and to plans to reassert executive control of judicial appointments.

However, the threat still seemed somewhat formless, nameless, shapeless – more diffuse than any ‘masterplan’. It is Tarun who presented the first systematic picture of the threats facing Indian democracy. Reading the first full draft of his paper – for a conference we both attended in Israel in January 2019 – was a revelation.

‘Killing a Constitution with a Thousand Cuts’ could only have been written by a constitutional lawyer, and one with the perception and acumen to piece together seemingly isolated issues as part of a highly concerning pattern. Reading the article, what we start to see seems closer to the masterplan scenario: an ongoing concentration of power in the executive and diminution of accountability institutions, whether vertical or electoral accountability, horizontal or institutional accountability imposed by other government branches and fourth branch institutions, or diagonal or discursive accountability from civil society.

We see re-casting of the liberal secular state in exclusionary majoritarian, and often religious and nationalistic terms, which runs completely at odds with fundamental tenets of liberal democracy, such as the need for checks and balances, counter-majoritarian and accountability institutions, and respect for minority rights. Certainly, it is striking how the Hindutva rhetoric of the BJP government resonates with racially and religiously encoded terms elsewhere, like the “Christian nation” in Hungary, the “True Turks” as devout Erdogan-supporting Muslims in Turkey, or the “real Americans” in the USA.

Tarun’s account also allows us to draw out the differences between the Indian context and elsewhere. For instance, we don’t see gerrymandering or widespread electoral manipulation, or any packing or full takeover of the Supreme Court. The narrative from the European contexts tends to be a good court captured by a bad government. But Tarun shows that the apex court can be part of the problem even where no overt capture has happened, and this resonates more closely with other contexts, like Brazil, where the Supreme Court continues to be independent but has been an unreliable actor in that it seems more focused on its own self-preservation than guarding the democratic system per se.

Tarun also shows how mastering the detail matters. International attention is grabbed by big-ticket issues, like the unilateral changes to the constitutional status of Jammu and Kashmir or the Citizenship amendment legislation, but this paper highlights how smaller things –  departures from established practices and norms, say, or intervention in appointments to the Reserve Bank – also reveal a government that is not going to let legal, constitutional, or conventional constraints get in its way.

Tarun’s work, however, goes beyond the obsession with the executive characteristic of the literature on democratic decay, framing the problem more broadly as an elision of the boundary between the ruling party and the state. His work shows, in stark relief, that the transformation of democracy in India is not just about the actions of the formal political branches; it is just as much, or more, about the electoral system and the party and party politics — whether it is how the Speaker of the Lok Sabha has acted in partisan ways, or how BJP-appointed governors cut across the power-dispersing design of state governors.

There is so much more one could say about this article. It is an exemplary piece of academic research that, in its rigour, care, and precise argumentation, performs the difficult double-trick of both pushing forward academic and theoretical understandings of democratic decay, and performing the essential public service of drawing a map of what is happening to democracy in India today, and one that will stand as a record for the future. My hope is that, in time, we will find Tarun analysing the revival of the world’s largest democracy. That he is working on possible reforms, including changes to the electoral system, is a reassuring reminder that he’s not just diagnosing the threat, but seeking to help make that better future a reality.

Tom Daly

Professor Tom Daly is the Deputy Director of the University Of Melbourne School Of Government, Director of the global online research platform Democratic Decay & Renewal, Co-Convenor of the Constitution Transformation Network (Melbourne), and Associate Director of the Edinburgh Centre for Constitutional Law. His research focuses on democratic governance, with a strong cross-disciplinary approach drawing mainly on public law and political science scholarship, and analysing connections between law and policy at the domestic, transnational, and international levels.

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