India voted in what was the largest-ever act of collective franchise by any country in history, and several extraordinary feats were witnessed. An extra 130 million voters entered the electoral rolls and the Election Commission reinforced its reputation as an island of institutional competence in a country where paralysis seemed to be the norm in recent years. The rise of the AAP — despite its disappointing electoral results — heralded the arrival a new non-caste, issue-based, national party that tapped into reservoirs of civic activism. The decimation of the dynastic Congress party was a good step in the direction of real democracy, unanchored in the politics of familial piety and challenging it to transform or die.
Last but not least, the BJP, led by Narendra Modi, showed its ability to overcome the appeal of caste-based parties and fashion a national message couched in terms of development and good governance, tinged with communitarian appeal, although the BJP ended up getting only 31 per cent of the popular vote.
Despite these impressive feats, the election highlighted deep concerns about the majoritarian politics of the BJP, its campaign rhetoric and the legacy of Modi’s record in Gujarat. It raises questions about whether India may join the ranks of Putinesque illiberal democracies. In a region that has recently seen the rise of majoritarian governments that are ostensibly electoral democracies, such as Sri Lanka, but which are repressive, illiberal and anti-minority, this is no idle threat.
The last few years have seen a weakening of openness and rule of law in India, characterised most acutely in the challenges to the freedom of expression of artists, writers and critics, and a hardening of developmental nationalism that rides roughshod over the rights of dissenting minorities and the poor, mostly unaided even by India’s courts. Modi’s rise creates a serious risk that those trends will only get worse.
Although Modi’s campaign was based on “good governance” and “development”, it failed to address whether commitment to rule of law and the protection of human rights was part of their definitions. Instead, the Modi campaign stressed job creation, economic opportunity and growth. What his campaign rhetoric failed to acknowledge is that in the world of global development practice and thinking, “development” and “good governance” have increasingly come to include rule of law and the protection of human rights. Social inclusion of weaker sections and social protection are seen now as part of development and good governance.
On this, Modi’s record does not inspire confidence. As a book on the way the investigations into the Gujarat riots were botched describes it, the Modi administration lost no opportunity to derail every possible attempt to find accountability, even when monitored by the Supreme Court. Despite this, Modi’s former minister, Maya Kodnani, has been convicted of encouraging mobs during the 2002 riots and there are now open questions about the “encounter” killings that happened under Modi in Gujarat.
For those who believe that Modi received a “clean chit” from India’s courts, there is bad news — there has not been any such clean chit and even if there is one in future, accountability cannot be evaded so easily. Under the laws of most countries, and under international law, there is “command responsibility” for crimes against humanity and an additional level of responsibility for the failure to prosecute and for interfering with the course of justice.
What may happen to the current cases involving Modi’s Gujarat administration and to past cases that have been quickly buried is a matter of concern. How PM Modi will use the law enforcement agencies under his control to deal with past questions of accountability or future ones will also be a matter of good governance.
The push for accountability will have to come from either independent institutions, such as the courts or the CAG, or from civil society, including the media. The real test of democracy for the new government will be about how liberal and reasonable it is towards its critics from these two sectors, and whether it allows India’s public institutions to function independently.
In the next year or two, the Modi-led government needs to proactively prove that it can honour and keep India’s proud but recent liberal democratic tradition, what’s left of its rule of law, its ethos of openness and tolerance, its multiversity and represent all of India’s citizens, especially those who did not vote for the BJP, and who have been fearful of Modi, given his past. It needs to prove that it respects India’s institutions and will abide by the constitutional obligations of good governance and help build a just and democratic world order under the rule of law.
The writer is associate professor of law and development and founding director, programme on human rights and justice, at MIT, US