Raj, Thulasi K.

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COVID-19 and the Crisis in IndianDemocracyThulasi K. Raj 2021-02-26T11:00:49In the recent global history of constitutional democracies, it is difficult to name asingle crisis that has plagued them simultaneously, until the COVID-19 pandemic.The calamity brought in by the virus was universal. For governments, it presentedan opportunity for crisis management without compromising rights guarantees.Some countries have marginally succeeded in this test while in others, concerns ofdemocratic decline were amplified. Three features defined the Indian response toCOVID-19: lack of transparency, executive monopoly and suppression of dissent.Lack of TransparencyMost of us should agree that transparency and access to information improvepublic trust and accountability. While the initial strategy of countries like Brazil underJair Bolsonaro or the United States under Donald Trump has been to deny thevirus, the Indian response is characterized firstly, by the absence of transparencyin governance and crisis management. On the evening of 24 March 2020, PrimeMinister Narendra Modi announced a 21-day national lockdown which was set tobegin within four hours. The lockdown was extremely harsh leading to a completeban on transport including international and domestic travel, closure of schools, non-essential shops and prohibition on assembly and events. This abrupt declarationwithout any prior notice left a country of around 1.366 billion people in utter confusionand disarray. The suspense served no meaningful purpose.The unpreparedness of the state to meet the demands of such a lockdown wasapparent. The shutdown led to a sudden halt in freedom of movement and access toresources. It caused disproportionate impact on vulnerable groups such as students,women, the disabled, the poor and the homeless. India’s social safety net hasproven itself to be vastly insufficient. The impact on poor migrant workers is striking.Incomes stopped for most of the inter-state migrant workers constituting around 450million who had traveled to urban neighborhoods seeking jobs. No arrangementfor transport was made by the government, at least not until several months intothe lockdown. Left with no other option, they resorted to walking hundreds andthousands of kilometers. For weeks, they walked to their homes, often carryingchildren, luggage and surviving on meagre food. Numerous deaths were reporteddue to starvation and exhaustion.The governmental response during the pandemic was rife with misinformationand often false data. The number of reported cases were far from actual data,it was found in surveys. All concerns of community spread were initially deniedby the central government although the number of cases was spiking. This wasjoined by fake optimism including a plan for a vaccine by August 2020 by the- 1 -government medical research body and encouraging traditional Ayurvedic medicinefor preventing the virus spread. The Prime Minister told some of the media outletsin a video conference that it was important to ‘tackle the spread of pessimism,negativity and rumour’ implicitly discouraging them from critical reporting. Journalistswho made investigative and critical reporting were arrested or charged under thecriminal law. To deal with the crisis, a Prime Minister’s relief fund was set up whichreceived substantial contribution, but the government refused to divulge the detailsof donations to the fund or how they are being used. The Prime Minister has also notaddressed a press conference in last several years (except the one in 2019 wherehe declined to answer questions) and this trend continued even during days of thepandemic and the citizens were addressed through long recorded monologues.The lockdown was extended with intervals of 21, 19 and 14 days – again withoutsufficient warning – and finally transitioned to phased easing of restrictions called‘Unlock’ in June 2020. However, economists argue that the country entered into thelockdown much earlier than necessary and exited from it, much later. The lockdowntherefore not only led to an economic disaster but failed to effectively control thepandemic. On a balance, therefore, the COVID-19 management was far fromsatisfactory from the perspective of accountable governance.Executive MonopolyThe traditional separation of powers consists of the legislature as the primary lawmaker, the executive that enforces laws and the judiciary that interprets the laws.However, the pandemic saw heavy concentration of powers and decision makingon the executive. The second feature of the Indian response can be described asexecutive monopoly.The Indian Constitution does not provide for a health emergency. It permitsdeclaration of emergency on grounds of war, external aggression or armed rebellion.Therefore, it would have been difficult for the state to resort to this route. However,a deadly pandemic such as COVID-19 requires efficient and sustainable law-making, for a large country like India. The lawmaker must be sensitive that therestrictions imposed on freedoms of movement, work or expression are reasonable,proportionate and necessary. Since the crisis requires comprehensive management,the best modus operandi was to initiate a specific and targeted legislation, similar tothe United Kingdom or Germany.The benefits of such a law must not be overlooked. A properly enacted law wouldgive sufficient clarity and accessibility to the citizens. It would foreclose, to someextent, possibilities for vague directions and misuse of powers. However, thestate chose not to enact a special legislation. Instead, a series of restrictionswere imposed via law making by the executive – through guidelines, ordinancesor government orders. The rules to address the challenges of the pandemicwere exclusively made by the executive. Moreover, the regulations were broadlyphrased, piecemeal and scattered. This vested an undue amount of discretion onthe executive, on the nature and extent of the restrictions imposed on rights.  For- 2 -example, in the early days of the lockdown, the central government asked the statesto mandatorily seal the state borders to prevent movement of people without allowingfor necessary exceptions. Private employers were directed not to reduce wages of orremove employees without considering businesses running on losses.Existing legislations were also made use of by the state to initiate and imposemeasures during the pandemic. The existing legislations did not contain sufficientprovisions for addressing the challenges posted by the pandemic. The DisasterManagement Act – originally enacted to govern natural disasters – was invokedand the authority under the Act was vested with wide discretion. The EpidemicDiseases Act, a law from 1897 was also used with powers prescribed as widely asmeasures the state deems necessary. The criminal law framework was used leadingto unprecedented police violence in the guise of enforcing lockdown regulations andsocial distancing.Executive decision making was aided by lack of legislative scrutiny. The number ofsitting days of the parliament saw a general decline over the years. It is reported thatthe number has gone down to 70 days a year in the last decade for the upper housewhile it sat for more than 120 days a year during the 1950s. But the pandemic madeit convenient for the executive to suspend or shorten parliament sessions altogether.Usually, parliament sits thrice a year. In March 2020, the session was cut short.The second session in September was prematurely interrupted. The last sessionof the year was altogether suspended citing the pandemic, in spite of demandsfrom members from the opposition. No possibilities for virtual, reduced capacity,or short-term sessions were explored, setting a dangerous precedent to suspendparliamentary sessions at the whim of the executive.Even for the small duration in which the parliament assembled, laws were passedpractically without deliberation. The demands of the opposition to send the Bills tocommittees and individual voting were denied. In September, two important laws –the farm laws and the labour codes – were passed without discussion. In fact, thelabour codes were passed in the absence of opposition members of the parliament,who had boycotted the session. The farm laws were passed despite protests by theopposition that the required voting procedure, as specified by the parliament’s ownrules, had not been followed in the upper chamber.The pandemic also saw concentration of powers at the central level, even whenstates were capable and equipped to deal with the pandemic. For example, thepowers exercised under the Disaster Management Act were made uniformlyapplicable and binding on all states. The States, with localized administration andbetter competence were not permitted sufficient autonomy in decision making.This led to conflict between the policies of the Central and state governments.For example, since the national lockdown in March, all flights into and from thecountry were banned. This meant that even citizens who were abroad for medical,employment or tourist purposes could not return home. The ban was made on theground that the risk of the virus spread is too high to allow persons to return andthat ‘domestic medical needs’ are given priority. However, states like Kerala, withbetter public infrastructure and able control measures were open to allow residents- 3 -into the state. Until May, however, the national government rigorously enforced thisindiscriminate travel ban, without being sensitive to the states which were capable ofaccommodating the return.The judicial response to executive action is notable. I have written elsewhere onthe evasive approach of the Indian Supreme Court of legal adjudication which hasemerged in recent years:“Three distinct and recurrent tactics of evasion can be identified. First, whenthe court is called upon to decide on a matter, it refuses to give orderseither way and chooses an indefinite adjournment. Second, the court defersto the executive when asked to answer legal questions, leaving it to decideon the validity of its own actions. Third, the court accepts the executive’sversion of events unquestioningly and closes cases without assigningsubstantial reasons.”During the pandemic, this trend became visible like no other times. This made thesituation of the citizens especially precarious when judicial review is a major outlet tochallenge executive action.Prominent cases reached the court concerning personal liberty, free speech andpolitical assembly. But the court stayed aloof from rights adjudication in most cases.4G Internet remains suspended in parts of Jammu and Kashmir since August 2019,and in spite of the demands of the pandemic to restore it, the court refused. Thebacklash of the government took the form of a series of political arrests. Activists,authors, student leaders and politicians were charged under anti-terrorism laws.But the court took a hands-off approach from interfering or granting bail. Challengeagainst labour law changes passed to overcome market crisis was dismissed at theoutset. The public trust in the court came to an all-time low, arguably second only toits attitude during the national emergency in the 1970s.Suppression of DissentIn late 2019, the Indian Parliament passed the Citizenship Amendment Actgranting citizenship to ‘illegal migrants’ from certain neighboring countries basedon their religion. The law enumerated specific religious communities and excludedMuslims. Muslims were thus not eligible for citizenship, although there is no expresssingling out in the law. It was criticized as a measure to implement the Hindunationalist ideology of the current government against the constitutional guarantee ofsecularism and non-discrimination.In February 2020, Delhi, the national capital witnessed horrific riots targetingprotestors of the law by Hindu nationalist forces, sometimes aided by the police.Widespread protests broke out in various parts of the country against this law. Theoutbreak of the COVID-19 pandemic, however, put an abrupt end to the protests.It presented a convenient opportunity for the government to distract the public fromthese concerns and focus on the pandemic. This was one of the most dangerous- 4 -political consequences of the epidemic – it put dissent to rest and neutralizedpolitical movements.This suppression aided the executive to also arrest journalists, politicians, students -mostly Muslims (and in a latest incident, even a stand-up comedian for jokes he didnot make). Many of those who criticize the Hindutva ideology or the government’spandemic management are met by unduly invoking existing criminal provisions.Those who participated in the protests against the citizenship law are targeted aswell. The restrictions on assembly and movement have made political mobilizationagainst the government repression almost impossible.ConclusionA major lesson of the COVID-19 crisis for India is to take deliberation andaccountability seriously. India continues to pay a heavy price for absence of acomprehensive legislation and effective enforcement mechanism. The separation ofpowers has tremendously suffered, with legislative and judicial accountability underthreat. It is imperative to ensure that the rollback on regulatory systems such asparliamentary deliberation, judicial check on the executive, lack of consultations inlaw making process is discouraged. The government must recognise the significanceof transparency in governance and initiate measures to restore the trust of thepublic. Informal norms are equally significant, such as public consultation anddialogue, respect for opposition and tolerance for dissent. The judiciary will need todo substantial work in hearing and effectively disposing cases where personal libertyis at stake. India is already sliding away from its democratic set up, and the need toreclaim it, is vital.- 5 -

COVID-19 and the Crisis in Indian Democracy

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COVID-19 and the Crisis in Indian Democracy

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