India's missing gate keepers

Polling is now almost over as we head inexorably for result day on 4 June, and it is a prospect which fills me with dread. Never, ever, have we had an election so filled with hate, bigotry, despicable language, threats, complaints, lies and manipulation. Never have we had an election where the stakes were so high, especially for the demonised and intimidated 14 per cent of our population pushed to the borders of citizenship.

Never have we seen a prime minister so contemptuous of the law, conventions, canons of basic decency and language, basic humanity. Never have we seen a citizenry so divided by religious fault lines. Never have we been in a position where the survival of our very Constitution is under threat. For, regardless of  the results on 4 June, the country is headed for a dangerous period of instability, chaos and even more social conflict which may threaten our very survival as a functioning democracy.

How did we reach this point of almost no-return?

We have reached this nadir of democracy because people who were entrusted with the responsibility — on oath — to defend the values of our republic have looked the other way, at best, or have colluded with the usurpers at worst. Without their indulgence, accommodation and hand-holding of these inimical forces, the country would not now be teetering on the edge of the precipice. They have been found to be missing in action when the country most needed them.

The prevarication of the judiciary, its inability or unwillingness to confront the executive, is perhaps the single most important factor which has emboldened this regime to push the frontiers of the Constitutional envelope, to salami-slice it with impunity without having to amend it.

Inordinate delays in deciding important cases have resulted in fait accompli which have invariably favoured the government. The jurisprudence of the "sealed cover" has made a mockery of the law, as we saw in the Rafale case. Court monitored inquiries — Pegasus, Hindenberg — have never reached any satisfactory closure, allowing the government to claim a "clean chit".

Even when the actions of the ruling party have been held to be illegal — Ram Mandir, electoral bonds — the perpetrators have been permitted to retain the proceeds of their crime, and to make use of them for electoral purposes.

Decisions now appear to be based on the predilections of individual judges, not on established principles of law: the most glaring example of this is the universal refusal to grant bail, even as the police go around arresting people with gay abandon.

NCRB (National Crime Records Bureau) data shows that about 55 lakh persons were arrested in 2022. Most of them are probably rotting in jail, which is why 75.80 per cent of prisoners are undertrials. This suits the executive just fine, because it enables it to detain persons — dissidents, opposition leaders, journalists — without any evidence or trial.

Matters have predictably now come to a point where even chief ministers can be indefinitely imprisoned without conviction just on the eve of crucial national elections! Even as convicted rapists like Ram Rahim can be repeatedly RELEASED on parole before elections! What kind of justice system is this, the citizen is entitled to ask.

The judiciary appears to have as much contempt for civil society and its representative organisations as does the government. A case in point is the recent dismissal of the pleas of ADR (Association for Democratic Reforms) and Common Cause, two of the finest voices of civil society, for reforms in the VVPAT counting process.

The judgment did not take into account global practices, views of experts, or the misgivings of the public. It was simply based on an abiding faith in a discredited ECI (Election Commission of India) and technicalities which the court was ill-equipped to analyse. Cross verification of the EVM/VVPAT count would have needed nothing more than a few additional hours, but would have instilled badly needed confidence in the electoral process.

This judgment has only emboldened the ECI to ride roughshod over civil society and the Opposition's concerns, and reinforced its carapace of unaccountability. The judiciary's facade of independence has been further dented by the self-confessed revelations of two high court judges that they are adherents of the BJP/RSS ideology: one of them is now contesting the elections on a BJP ticket.

The ECI is perhaps the most distrusted institution in India today, having expended all its previous glory on self-serving sycophancy of the current regime. It has consistently and unabashedly done everything in its power to create a pitch which favours the BJP — from its volte face on the electoral bonds issue in court, to the long drawn out, six-week polling schedule, its inaction on the many complaints of names of voters being deleted from voters' lists, of voters of a particular community not being allowed to vote in some booths, its steadfast opposition to cross verification of VVPAT counts, the unexplained delay in releasing the absolute number of votes polled, the unprecedented increase in polled votes in the final lists.

This has led to widespread distrust of its motives, and apprehensions of its conduct on counting day. The election commissioners could have made an attempt to dispel these concerns by agreeing to meet the delegation of Opposition parties or to hold regular press conferences (both of which its predecessors had invariably done). But it has obstinately refused to do so, perhaps fortified by the Z+ security cover conferred on it recently!

Things have come to such a pass that all results declared on 4 June could now come under a cloud in public perception; the sanctity of the election process (which was never doubted even in the critical 1977 election) has now been eroded.

In a first of its kind, various civil society organisations have issued appeals to returning officers, the uniformed forces, and even the President to abide by their oath to the Constitution and ensure a free and fair result on counting day. This general distrust could have grave implications post the counting, only because the Election Commission was found wanting when it should have stood up to be counted.

Whereas the above two institutions have facilitated the empowerment of the BJP's vicious brand of politics, the corporate media has done worse — it has brought the vitriol, bigotry and hate into the sitting rooms of people. By amplifying the ruling regime's lies and falsehoods, by not questioning them, by concentrating on divisive subjects rather than genuine news, it has managed to legitimise falsehood and  hatred on a scale even Goebbels would have marvelled at.

This media has spread Islamophobia throughout the country and has helped elevate Mr Modi to godly status, something which he now publicly claims himself. By constantly disseminating false or slanted news and not projecting the Opposition's points of view, it has denied authentic news to the public at large and violated the first principle of journalism. It has assisted the ECI in preparing a doctored pitch (at least in the perception of a large number of people) for the election.

The institutions which were meant to ensure a free and fair election have not done their job, and the nation may end up paying a heavy price for it. They will not be judged gently by history, nor do they deserve to be. But for the moment we are entitled to ask of them: where were you when the country needed you most?

Avay Shukla is a retired IAS officer and author of Disappearing Democracy: Dismantling of a Nation and other works. He blogs at avayshukla.blogspot.com