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Threat to democracy: Loopholes in Pandemic governance

Our country has the longest written constitution running into 448 articles. This form of constitutionalism has always proved to be a handbook for various unforeseen circumstances and where it has fallen short, we have incorporated and interpreted to fill such loopholes.

However, this deadly pandemic has seemed to be one of its kind. With no such guide, our country has grappled in dealing with this unprecedented set of circumstances. Through this article, I seek to enlighten the loopholes that have accentuated in the governance of the country during this time of the crisis. The executive has managed to accumulate substantial powers overlooking all the three tiers of checks and balances.

Before we proceed, we should remember that India is a parliamentary democracy championing separation of powers and a three-tier system of checks and balances cemented by a bicameral legislature, an Independent Judiciary and public criticism. The following article, thereby glimmers on the flagrant moves to concentrate power by the executive, exacerbating the already unpleasant circumstances.

  1. Executive Fiat

    In furtherance of the social distancing guidelines across the globe, the GoI on 24 March invoked the National Disaster Management Act (NDMA). However, it is to be understood that the NDMA was enacted to provide for the effective management of disasters and for matters connected therewith or incidental thereto and this pandemic's classification as a disaster by the MHA stands rather doubtful. Section 10 of the NDMA, gives sweeping powers to the Central government to issue binding directions and guidelines to various State governments.

    The first nationwide lockdown was imposed while exercising the powers under Section 10. The initial guidelines of 24th March came along with the invocation of the NDMA and directed a complete halt in the movement except for certain dispensations.

    With the passage of time and a series of lockdowns, these guidelines happened more frequently. In light of these guidelines and threat of the virus, most of the institutions of the government or otherwise made a paradigm shift to the virtual world and the one's that couldn't had to close down.

    The Parliament is one such institution that didn't manage to tread to the e-world, substantially due to huge masses involved. Due to this, there haven't been any deliberations on the policies adopted by the executive. India champions a bicameral system majorly for its inherent quality of checks and balances which helps in preventing potential abuse of power by a single majority.

    This system provides an opportunity for debate and discussion in the legislature where several shades of opinion are represented with a balanced and unbiased decision free from any allurements.

    With the prevalence of this lockdown and the invocation of the NDMA, the government has overlooked the system of intellectual deliberations and evidently has governed the country by a web of executive decrees. Since the inception of the lockdown, to date, there has been a slew of convoluted guidelines, the complexities of these guidelines have caused veritable difficulty in their implementation as is evident from the instances of harassment by the officials for a morning walk when these impugned guidelines didn't provide any restriction for the same.

    Additionally, the infamous a slew of economic packages released by the government has been incessantly criticized by eminent economists on it is insufficient to provide the required impetus to our economy. The complete usurpation of power by the central executive augmented with ignorance of the system of checks and balances and meaningful deliberations has resulted in creation of, as Gautam Bhatia argues 'a web of executive decrees'. This complex web has led to a state of ambivalence and has affected its execution, in a time when the nation needs to stand united.
  2. Dwindling Judiciary

    In times like the present, as argued above bureaucracy is at its apogee. Without the first tier of checks and balances by the Parliament, the baton falls on the Judiciary to hold the executive accountable by keeping a constant eye on its actions. Although unlike the Parliament, it did manage to survive the tide of the lockdown by switching to the virtual world however restricting itself to urgent matters. It is inscrutable as to which matters

    The court found urgent. Without a template and blithely overlooking the proliferation of virus cases, some of the High Courts have even classified certain bail applications to be non-urgent. Wherein the Supreme Court in its own admission has stated that prisons are overcrowded and potential hotbeds of Covid-19. It is posited that this is a blatant violation of the fundamental right to life and personal liberty conferred by Article 21 of the Indian Constitution keeping in mind, the over enthusiasm showed by the police forces in making arrests for the Delhi riots under Sedition and Terrorism laws while the nation looms with an imminent threat of health emergency.

    In addition, under trials account for nearly 70 percent of India's prison population. Constant use of phrases how can we stop the migrants from walking?, it was not possible for the Court to monitor who is walking and who is not walking, states are providing interstate transport" coupled with the camaraderie with the executive which is axiomatic in the Kashmir Internet case has left us all intrigued. It is, therefore, not hard to ascertain that the Judiciary has failed to keep an eye on the executive sprawling powers, resulting in an abject failure of the second tier of the system of checks and balances.
  3. Muzzled Press
    In the famous Public interest Litigation filed for redressal of grievances, directions for providing adequate shelter and basic amenities to migrant workers. The Supreme Court has managed to pass a strange order utterly irrelevant to the case. On an unsubstantiated report advanced by the government citing the derogatory effects of fake news during the pandemic, the Court directed the release of a daily bulletin by the government to clear the doubts of people and ordered the media to refer to and publish the official version about the developments of the pandemic.

    This order coming from the topmost Court, the sentinel of qui vive has attracted huge criticism and is in complete violation of the Right to Speech and expression of the Press guaranteed under Article 19(1)(a) of the Constitution. It is argued that the Court has not left any choice for the press except to forward the sugar-coated developments of the pandemic made by the government itself. This muzzling of media is also prima facie arbitrary and does not find a space in law as Article 19(2) posits any restriction on Free speech and expression to be brought via a legislative enactment. Further, this sugar coating of developments of the pandemic has denied the populace of their fundamental right to information. With no information and criticism from the public, the government has managed to surpass the third and final tier of checks and balances.

The Rule of law, which forms the very basis of democracy has seemed to erode. With the wresting of untrammeled powers by the executive from the remaining two organs, it has managed to dilapidate the system of checks and balances which undergirds the golden fabric of the democracy pervading the Constitution.

This evasion from accountability and usurpation of draconian powers without a sunset clause might lead to erosion of the democracy insinuating autocracy. It is important to understand that justice and free press form the very essence of democracy and shall not be allowed to be debilitated even in the harshest of times.

Further, the fundamental right to life and personal liberty is the very essence of the rule of law leave alone the Constitution. When the havoc looming over our heads led by this pandemic passes and normalcy returns, which eventually will. It is profoundly important to look back in time not to rectify the wrongs but to gauge and assess the somber state of affairs that prevailed. The lessons learned from Indra Gandhi's feudal emergency shall not be forgotten and any effort to cripple democracy must be eschewed.

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