Our first Blogcast: India and the Rule of Law

8 March 2021 by

india rule of law blogcast

The UK Human Rights Blog doesn’t write about itself. There is too much of interest in the law of Human Rights to cover and the Blog has been providing this service ever since 1998 when Rosalind English and others started the Human Rights Update. With the know-how and energy of Adam Wagner, this developed into a Blog and last year, under Commissioning Editor, Jonathan Metzer (with the assistance of a small army of contributors), it attracted about 1.1 million visits from readers. In 2017 Rosalind launched LawPodUK to complement the blog, bringing the made for Podcasting voice of Emma Louise-Fenelon to thousands of listeners.

At this time of year, the Blog would normally be preparing for its annual party to thank its contributors. For obvious reasons, this is impossible this year and we decided it would be interesting to organise an online seminar instead. Is a Blogcast a thing?

We wanted to talk about the Rule of Law. Liberated by the earthly constraints of distance and time zones, we thought it would be interesting to bring together three stellar academics to discuss it from an Indian perspective. Joining us from Delhi will be Dr Shruti Kapila (Corpus Christi College, Cambridge), from Oxford, Professor Tarunabh Khaitan – and from our own neighbourhood, Dr Mukulika Banerjee (LSE). You are invited to join us, and we would welcome your contributions (message us or leave a comment below with your questions and thoughts). The Bar Human Rights Committee has been active in this area and we are very pleased its Chair, Schona Jolly QC, has accepted our invitation to take part too. The discussion will be facilitated by Marina Wheeler QC who has written recently about this subject.

It is irresistible to recall that at the time that the Blog was starting out its life, the BJP had secured a major victory when Atal Bihari Vajpayee became the first BJP Prime Minister of India to hold office for a sustained period (he was previously PM for 13 days in 1996). Over three terms, he was to serve over six years in Office – a party record that was surpassed by the current incumbent Narendra Modi in 2020. However, this does not begin to describe the transformation of the Indian polity – most especially after the saffron wave that broke over India in the 2019 general election.

In his seminal article, “Killing a constitution with a thousand cuts: executive aggrandizement and party-state fusion in India,” (2020) 14 Law & Ethics of Human Rights 49, Professor Tarunabh Khaitan examined various steps taken in the Modi first term and concluded that the approach of the administration was undermining all strands of institutional accountability in a way that was, “subtle, indirect, and incremental, but also systemic” and coined the phrase, “killing a constitution by a thousand cuts.”

If anything, Narendra Modi’s second term as PM appears to show signs of a quickening of progress in a crusade to transform India, as Dr Kapila explored in a piece in the FT last year: The annihilation of India’s political opposition is almost complete. For an outsider, perhaps the most startling of the developments was the revocation of the statehood of Jammu and Kashmir and its bifurcation and demotion into two Union Territories – all the while accompanied by the detention of the democratic leadership of the state and the suppression of most forms of communication. The Citizenship Amendment Act was reintroduced and sweeping reforms made of agricultural support – both of these steps provoked widespread protests. The latter was met with repression – with opposition being characterised as “anti-national.” The US organisation, Freedom House has recently downgraded the status of India from “Free” to “Partly Free” in its 2021 annual global survey.

The response of the Courts has been muted. One of the reasons for this is that the rate of High Court Judge vacancies has been allowed to hover around the 40% mark for some years with a consequent impact on the effectiveness of the Courts. This tends to create a culture of impunity.

This might all be thought to be a surprising development in the world’s largest democracy with a sophisticated constitution – whose moving spirit, Dr Ambedkar is honoured by statues all over India and by many monuments in the UK – including a portrait in Gray’s Inn – a development examined by Dr Banerjee in the Sunday Times, Modi parades his hatred of Muslims — and makes a mockery of India’s constitution. It is important to recognise that Indian governing norms have been assaulted before – the most striking being during the period of the Emergency (1975-1977) and the misuse of the powers of Governors to subvert state governments is nearly as old as the Constitution itself. The question may be asked as to what extent all this is a product of a tension when an administration with a substantial mandate seeks to bring about change in a country. Are recent developments just an upsurge of majoritarianism or is India witnessing the degrading of constitutional norms and a fundamental assault on the rule of law?

Come join us, explore these questions, and offer your view about how might we respond. RSVP via Eventbrite here.

The event will also be recorded and available on request.

To listen to more discussion on Human Rights, our podcast Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer  or wherever you listen to our podcasts.

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