The Marauding Executive

 

In a democracy, the excesses by the executive can be checked at various levels. Much of it used to be stopped at the level of the executive itself, thanks to the “steel frame” called the civil services of the country. That steel frame has now gathered so much rust that it almost invites being trampled upon. The second check used to be the constitutionally appointed bodies like the Election Commission of India, Comptroller & Auditor General, Union Public Service Commission, National Commissions (Human Rights, etc.). The appointments to these bodies have been so compromised that they are reduced to party toadies, with some exception for UPSC. However, UPSC’s independence also is under attack through the pincer movement of lateral recruitments and moves to allot services after training. 

The third bulwark used to be the legislature. No matter what, actually lying on the floor of the Parliament was a strict no-no. All ministers and officials were always anxious about what questions might come up in the Parliament regarding their actions or lack thereof. However, with blatant misuse of ED, CBI and other agencies and creative interpretations of the anti-defection laws, that check is also gone.

 

Up until 2016 or so, the Press used to be very effective in exposing many things about the government – remember the Bofors scandal, A.R. Antulay cement scam, 2G spectrum scam, Coalgate, Adarsh housing society scam? Now the Press has been squeezed so much through micro-managing column inches, air time allocation, complete blank-out of any unfavourable news, even daily instruction on topics to be covered and the stand to be taken by the anchor, ED, income tax, denial of government ads and other largesses and even corporate takeovers that hardly anyone reads, watches or believes mainstream media any more.

 

Ultimately, the buck stops at the Supreme Court. So, I have a few questions to ask M’lords.

 

The Citizenship Amendment Act has been possibly the most grievous assault on the very fabric of Indian constitution which espouses a secular state not only in its preamble but underlying many of its articles. There would’ve been no material  difference if that phrase, “belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community” was not included in the Act. M’lords, since the Act prima facie discriminates on grounds of religion, at the minimum, shouldn’t it have been stayed for contradicting the basic structure of the constitution and fundamental rights rather than the challenges meandering on in the Supreme Court since 2019 - it has been seven years now, and counting?

 

Stringent provisions of sedition are used even for school plays critical of the Prime Minister. The draconian sections of sedition were made more easily applicable through the new incarnation of IPC. The Unlawful Activities (Prevention) Act was made even more tyrannical by amending it in 2019 to include “persons,” in addition to only “organisations” earlier. M’lords, wouldn’t it have been possible to deem these amendments unconstitutional or at the very least, through instant bail and exemplary costs, their operation defanged?

 

Prevention of Money Laundering Act (PMLA) was meant to clean dirty money from a specific list of crimes. In 2019, the government weaponised the Act and its enforcing agency, the Enforcement Directorate by introducing an explanatory clause making the offences a “continuing crime.” Thus, anyone, you read that right, just anyone, even suspected of enjoying the proceeds of any money laundering since Adam created Eve out of his ribs would’ve to prove with a family tree spanning eons that he was not a descendant, he didn’t enjoy and what proceeds?! Meanwhile, decades will go by until the matter can come up in a sub divisional court, let alone the Supreme Court. Unlike in Police cases where the accused can obtain a copy of the FIR, in PMLA cases, ED need not provide the Enforcement Case Information Report (ECIR, equivalent to the Police FIR) as it has been deemed as an “internal document.” So, the accused doesn’t even know what he is defending himself against until a chargesheet or prosecution complaint is filed in about 60 days. Already, bail provisions under laws such as PMLA are arguably more stringent than the anti-terror law, Unlawful Activities Prevention Act. While under UAPA, judges cannot give bail if they are of the opinion that the allegations against a person are “prima facie true”, under PMLA, judges must be satisfied that the person “is not guilty of such offence” and “is not likely to commit any offence while on bail”. This imposes additional conditions when granting bail in PMLA cases. When the trial hasn’t even started, no judge can stick his neck out to determine that the accused is not guilty and not likely to commit any offence while on bail. This gives the executive carte blanche to keep people under custody for long periods, even if no offence has been committed. These provisions and the way they’re being misused strike at the very heart of fundamental rights and natural justice. Shouldn’t the minimum the Supreme Court could’ve done was to keep them in abeyance and granted bail whenever such arrests have taken place under spurious justifications?

Under what authority or law have these bulldozers become so ubiquitous? When a high authority flaunts them in election rallies as how he dispenses instant justice without due process of law, shouldn’t the concerned gleeful officials be begging for mercy, not the persons whose houses they demolish wantonly? Then, of course, there’re the so-called "encounters" ...

 

So, M’lords, is the last hope of the citizens against a marauding, rapacious executive to be extinguished?

[To be continued]