Opinion Manish Tewari writes: It’s time to recognise Opposition as separate class, protect its rights

While refusing to allow the petition, the Court orally observed that “A political leader is basically a citizen. As citizens, we are all amenable to the same law. Political leaders do not enjoy an immunity”. The bench further observed that laying down general guidelines without relation to the facts of a case would be dangerous.

There can be no qualms or quibbles with this proposition. The Court was correct in orally observing that political leaders, members of Parliament, members of state legislatures and other political and civil society actors are all Indian citizens and the same set of constitutional rights and obligations must apply to them. However, herein lies a caveat.

Democracy cannot exist without a meaningful Opposition either at the Centre or in the states and therefore the political opposition does need to be treated as a separate class and ought to be protected from the indiscriminate and capricious use of law enforcement and even intelligence mechanisms.

The fact that there were widespread apprehensions that the spy software Pegasus was ostensibly used beyond the “national security remit” across the world to target civil rights activists, journalists, regime dissidents and Opposition figures is a case in point. What these tactics of intimidation do is that they bludgeon and pummel not only the political opposition but all and any form of dissent, conscientious or considered, into capitulation. That is disastrous for both democracy and the rule of law.

In ‘Legitimate Opposition’, Duke University’s political theorist Alexander S Kirshner argues that the primary function of an Opposition in a polity underpinned by the rule of law is that it allows large groups that do not form part of the ruling establishment to influence the course of political affairs without fear of reprisal. As the climate of coercion has become the norm rather than the exception in our polity, the political opposition can no longer hope to influence political affairs or voice its opposition free from the threat of false FIRs and indiscriminate investigations.

The manifest concentration of power in the executive that necessarily possesses at its disposal the resources to strike past and beyond both institutional, and more often than not, constitutional boundaries too, it is the political and even civic opposition that keeps the flame of democracy blazing in the most blustery gales and tempests.

It checks governmental power and preserves the space and agency of the electorate to ask questions of the ruling establishment. The Opposition cannot do this if it simultaneously faces systematic attacks that often amount to nothing upon an impartial investigation.

However, in our country, the process is itself the punishment, given that the legal architecture, especially in the areas of criminal jurisprudence and national security, has become “over-amplified”, making civic liberties and constitutional safeguards its foremost casualty.

This is not an argument for the exceptionalism of political leaders alone, but rather for the centrality of dissent and for insulating spaces for it in a democratic polity. The subversion of dissent and proscription of the spaces for it prevents citizens, and more so, their elected representatives, from speaking truth to power and holding the executive to account.

A fundamental precept of democracy is the supposition that Opposition parties operate under constitutional protections of freedom of assembly, association and expression. These rights ensure that the collective political opposition are not criminalised, harassed or disadvantaged in any manner. When these rights are undermined, as they surely are when law enforcement agencies are selectively weaponised, constitutional courts and well delineated judicial protections are the only insulation and succour.

Moreover, there is a direct connection between the existence of a robust Opposition which is allowed to critique freely and the democratic nature of a regime. Indeed, Robert Dahl argued that the absence of an Opposition is compelling evidence for the absence of democracy. The success of our democracy will depend on how we are able to give the Opposition institutional form and protection.

That is why this argument becomes germane – that the time has come to recognise the political and even civic opposition, both at the federal and state level, as a separate and distinct class deserving of protection because it furthers democracy and the rule of law. That is also the reason why the protection afforded to elected representatives under Section 8(4) of the Representation of People’s Act 1951, taken away in the Lily Thomas case, requires an urgent judicial revisit.

There is a need to create a regime of Opposition rights that shields the Opposition from imposing legislative majorities that often translate into the abuse and misuse of law enforcement mechanisms both at the federal and state level.

Such Opposition rights, as Prof Sujit Choudhry puts it, go beyond the rights of individual legislators to speak and vote against government bills. The Opposition as a whole ought to be afforded protection, not just individuals and organisations that oppose the ruling establishment. Some political scholars refer to it as the “constitutional opposition”. Only then can we be a democracy in the purest sense and not a one-party system with no Opposition to hold the government to account. This is an idea whose time has come.

The writer is a Congress leader, lawyer, MP, and former I&B Minister. Views are personal