On August 16, several civil society stalwarts came together to hold an online Janta Parliament to address the functioning of the government in wake of the Covid-19 pandemic and how it was being used as an excuse to further nefarious political agendas. The online session was toplined by eminent jurist AP Shah and other speakers included Aruna Roy, Jignesh Mevani, Soni Sori and Syeda Hameed.
Justice AP Shah, former Chief Justice of the Delhi High Court, addressed the inaugural session of the Janta Parliament and highlighted how Indian lawmakers had failed to keep up with their Parliamentary obligations in wake of the pandemic and how they could have easily followed in the footsteps of their contemporaries across the world, instead of virtually shirking responsibility and failing in their Constitutional obligations.
The Budget Session of the Indian Parliament began on January 31, 2020, just a day after the World Health Organisation announced the Covid-19 pandemic to be a public health emergency of international concern. Though the Parliamentary session was originally scheduled to end on April 2, Parliament was adjourned sine die on March 23, 2020.
“Contrast this with how other jurisdictions have been operating in this time of crisis: the United Kingdom, Canada, European Parliament, have all made procedural changes that enable holding hybrid or complete virtual sessions of parliament, with some members being physically present in the house, and others participating through video conference,” said Justice AP Shah. “These jurisdictions also have provision for remote voting to ensure that legislative business continues uninterrupted to the extent possible. Many other countries are working similarly, such as France, Italy, Argentina, Brazil, Chile, Australia and New Zealand. Spain – one of the countries worst affected – also ensured that legislative work went on.” He went on to quote Mohamed Nasheed, the Speaker of Maldives Parliament, who said, “Parliaments worldwide cannot just stop representing their people during this crisis. The institutions of democracy must continue to function.”
Justice Shah said, “These sentiments, sadly, do not seem to echo with counterparts in India, where Parliament has remained a ghost town since March 2020.” However here, Justice Shah reminds us that, “This decision to shut Parliament down is also going against tradition in India, where Parliament remained in session even in times of crises like wars and terror attacks: in 1962 and 1971, the Indian Parliament remained in session, even as its armed forces were fighting neighbours. Despite the horrific terror attack on its building in 2001, the Indian Parliament met the very next day in New Delhi.”
Justice Shah then weighed in on the role of various arms of government calling the Legislature “the protector of people’s rights.” He said, “In Parliamentary systems, the executive is accountable to the legislature, where the actions of the executive are subject to scrutiny on a daily as well as periodic basis. A host of tools are employed for this, such as questions, resolutions, no-confidence motions, and debates. This is in addition to the oversight of the laws and executive actions by various parliamentary committees. There’s a secondary round of accountability and assessment of all these actions through elections held periodically, every five years.”
Justice Shah then went on to explain the role of the Rajya Sabh saying, “With Parliament, the upper house, or the Rajya Sabha, has a clearly defined role too: to impose a check on hasty legislation that the Lok Sabha might otherwise be prone to, and to represent those interests that might not be considered by the Lok Sabha.”
But coming back to the subject of the non-functioning of the Parliament in wake of the Covid-19 pandemic he asked, “But what happens when Parliament itself stops working? Besides failing to provide leadership to the people in a time of crisis, like the pandemic, it compounds the problem of representation and accountability by granting the executive a free rein to do as it pleases. Executive accountability, in these conditions, is a thing of memory, for there is no one to raise any questions about its actions.”
He further elaborated on the subject of executive accountability saying, “Like its counterparts in the liberal democratic world, India, too, aligns to a textbook framework for executive accountability: through the legislature, there is accountability to the people; through the judiciary, there is accountability to the Constitution and adherence to the rule of law, as well as to other institutions like the auditor-general, the election commission, a human rights watchdog, anti- corruption bodies, and so on; and there is additional accountability through entities like the press, academia, and civil society. These include non- governmental organizations, trade unions, religious organizations, and charities.”
He warned, “Unfortunately, what we see happening in India today is an insidious takedown of each of these institutions and mechanisms empowered to hold the executive accountable.” Justice Shah goes on to give examples of this, “The non-appointment or non-recognition of a leader of the opposition; and overriding the Rajya Sabha in important decisions by converting bills into ‘money bills’, which mean that the bills in question can be passed by the Lok Sabha’s approval alone. Also, the act of frequently putting bills to vote without any discussion. Through these, the executive has been allowed to get away with a lot of actions that would ordinarily have not gone unquestioned in another set of circumstances.”
Lamenting the judiciary’s inability to step up to defend India’s democracy, Justice Shah said, “We have always prided ourselves in, and boasted of, India’s independent judiciary. Despite serious aberrations in the past, such as during Emergency, the judiciary has always somehow managed to restore the people’s faith in the institution as one that preserves sanity in the chaotic life of the Indian democracy. But, today, the judiciary appears once again to be failing us.”
He explained, “There are many important issues that need to be deliberated upon today. With Parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship Amendment Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act, electoral bonds, etc. Sadly, most of these are ignored or brushed aside or mysteriously kept pending for an indefinite period of time. In some cases, such as that of internet access in Kashmir, the Supreme Court has all but abdicated its role as arbiter, and handed over the matter to an executive-run committee to determine. How such a committee can take an unbiased view on a review of the actions of the executive itself makes no sense at all. Indeed, these are all matters that are not being discussed in any forum of constitutional relevance.”
Justice Shah also lamented the failure of other relatively autonomous bodies in protecting the rights of Indian citizens saying, “The other authorities and institutions that could have played an important role in these times are also silent. We have heard nothing of the Lokpal since forever. The National Human Rights Commission is dormant and appears to exist only on paper. Investigation agencies seem to be misused at the slightest opportunity. The Reserve Bank of India and the Election Commission of India appear to have been suspiciously compromised. The Information Commission is almost non-functional. The list is long and needless to say, very disturbing.”
Justice Shah also lamented the systematic destruction and silencing of academia, the press, and civil society saying, “Universities are under attack daily, whether it is students being accused of rioting, or teachers being accused of criminal conspiracy. The idea of an unbiased mainstream fourth estate in India died its death a long time ago. Now, with policies like the Media policy in Kashmir, the concept of an independent free media is also dying. And civil society is being slowly but surely strangled, through various ways.”
He squarely blamed an authoritarian regime for this. Justice Shah said, “The source of these attacks is unquestionably the current executive, and the underlying strategy in the attack against these entities is to suffer no difference of opinion. Those of even limited influence found voicing opinions that are contradictory to the ruling party’s view are subject to the worst form of scrutiny and even punishment. The principle appears to be that all dissent must be silenced.”
He warned that “the central executive has become all-powerful, and all accountability mechanisms are diluted.” According to Justice Shah, there was only one way to deal with the nation’s current predicament, “We must keep speaking out, and keep speaking up. Our aim must be to revive the liberal democratic state of India that we are so proud of. Failing this, we run the risk of allowing ourselves to be overrun by an overzealous and unchecked executive, which has unimaginable consequences. 74 years after independence, it is the least we can do for ourselves and our future generations.”