Judicial Populism and Political Expediency: How the Quest for Virtue has Damaged Institutional Integrity

In the early years of what is today called the “European enlightenment”, the political philosopher Montesquie famously identified “virtue” – or respect for the law – as the widely shared spirit within a society that made democracy as a system of governance possible. Even if widely shared, virtue is a frail and delicate attribute, which needs to be securely enshrined in institutions that would be immune to abuse. Virtue would surely perish if power were to be exercised arbitrarily and the law abused. And since excessive power, vested in any individual or institution is the surest road to the collapse of democracy, the separation of powers is essential to safeguard virtue. Every institution of governance would enjoy autonomy within its own realm, but no licence to intrude into another’s territory. In their mutual independence and adversarial tension, the executive, legislature and judiciary would ensure a system of administration that upheld the sovereignty – and nurtured the virtue -- of the citizen.

Indian democracy seems set on a rather different course. Virtue is seen not as a widely held attribute but the monopoly of a chosen few. Far from honouring the separation of powers, legislature, judiciary and executive are seen, in a self-serving and sordid deal, to be making accountability the principal casualty.

The Anna Hazare movement, which caused spasms of anxiety in the political establishment through three visitations in 2011, was a powerful representation of elite disgruntlement at the state of governance. Its dominant motif was a forthright sense of disdain, loudly proclaimed, at the functioning of the institutions of representative democracy. And its programme was to secure democracy against a reign of iniquity by endowing the virtuous few with powers that trumped all others.

Anna Hazare promised messianic deliverance from the difficulties ordinary people face. But the sea refused to part as his chosen people were led to the water’s edge and the constituency for messianism remains unappeased. The residual impact still remains on the institutions of governance, which feel compelled to respond to the elite clamour by making sweeping decisions that jump across institutional boundaries.

The recent Supreme Court ruling assigning culpability for the abuse of power in the gift-wrapping of a valuable public resource – the telecom spectrum – for a clutch of companies of dubious credentials, addressed questions of political accountability in a rather strange fashion. While identifying the individual who held the telecom portfolio in the Union Cabinet at the time, the Supreme Court bench absolved the Prime Minister of all blame. It did however, censure the Prime Minister’s office for the numerous acts of omission and commission that contributed to the epic scandal.

This lesson in political morality abounds in curiosities. It shreds the principle of collective responsibility which is a fundamental premise of the Cabinet system of governance. And in this respect, it holds out a lifeline to Prime Minister Manmohan Singh, who has for long taken the alibi that “coalition compulsions” prevent effective oversight over ministerial malfeasance. It was a rather weak argument but one that found traction with sections of the media that seemed anxious to protect Manmohan Singh, as his credibility went into free fall following a severe indictment of the spectrum sale by the Comptroller and Auditor-General (CAG).

Viewed dispassionately, Manmohan Singh’s alibi would appear to be a gigantic evasion. The rules of engagement in a coalition government, he was in effect arguing, involved granting every partner a certain degree of latitude. By implication, even if there was a gross abuse of power, individual rather than collective responsibility would apply.

If coalition compulsions necessitate a dilution of the principle of collective responsibility within the Union Cabinet, the Prime Minister’s office clearly is a very different kind of space. This is where the Prime Minister enjoys the virtually untrammelled privilege of nominating key aides and officials. In holding the Prime Minister guiltless in the abuses that his handpicked staff colluded in, the Supreme Court constructs yet another peculiar notion of political accountability.

The spirit that suffuses the Supreme Court’s recent findings on the 2G scam is expediency rather than principle. That same attitude was evident in the intervention of P. Chidambaram, then the Union Finance Minister, who for long insisted that an auction involving all those seeking to launch second-generation (or 2G) telecom services would be the right procedure, but then acquiesced in the decision made by a Cabinet colleague, to sell the spectrum in terms of a dubious “first come first served” policy. In a recorded minute in his hand, he urged then that the matter be treated as “closed”. Chidambaram was in other words, disinclined to enter into conflict with a Cabinet colleague, because the consequences could possibly destabilise the ruling coalition.

A judicial forum is no place to settle questions of political morality. The Supreme Court’s recent decisions on the allocation of blame in the 2G scandal, honour this principle. But they also explicitly endorse the dubious construction of political morality – in terms of its limitations in a context of coalition governance – that has emerged from the government of the day. They seek to offset these expedient concessions to the morality deficit of the Manmohan Singh government, by decreeing with a self-righteous flourish, the cancellation of all telecom licences granted under the 2G spectrum allocation.

Even those absolutely convinced of the righteousness of the decision must harbour a certain disquiet at the manifest failure of due process here. The Supreme Court has basically rendered a judgment that penalises entities that were not named in the petition it was hearing, without so much as giving them the opportunity to be heard.

Summary justice, for a constituency that seeks messianic deliverance, may seem the need of the hour, when political institutions have loudly proclaimed their failure. Above all, this is a failure of credible oppositional politics. Political morality is determined within the realm of politics, in the contestation between ruling and opposition factions. Since the first whiff of the 2G scandal, the political opposition has been seeking extraordinary remedies. It paralysed the functioning of Parliament when the ruling benches refused to institute a joint committee to investigate the 2G scandal before a thorough debate on the CAG report. It has since sought to shelter behind the maverick effort by Subramanian Swamy, a renowned political adventurer with distinctly dubious political commitments, to enforce morality through the courts.

That effort suffered a setback with a Delhi court refusing Swamy’s insistent plea to sanction the criminal prosecution of Chidambaram, the incumbent Union Home Minister. The trajectory however, has been set, and the opposition is unlikely to retreat from its confrontational posture, which sinks politics into further odium.

The unappeased constituency for messianism clearly, is unlikely to sit back and allow this dubious political morality play to proceed. A swift resumption of the elite rebellion against representative politics is virtually foretold. And this quest for a virtuous order free of all irksome burdens of representative democracy, is likely to inflict lasting damage. In place of a detested political order, this uprising of the privileged will substitute a regime of absolute authoritarianism.