Whether you are for or against the removal of Article 370, there remains an uneasy truth about what has been happening in the space of policy-making in India: that of politics and a pre-determined outcome overriding due and democratic process, regardless of constitutionality, norms and past practice, and the consent of, or consultation with stakeholders. Where the law ministry used to previously advise the government on constitutionality of certain moves, the manner in which bills are being passed and policies made, it is almost as if it is now advising the government on getting around rules and norms despite lack of constitutionality, or concurrence with existing laws.
The government of India has a goal in mind. It will do what it wants, irrespective of the risks involved and the impact it has on people. It is also up to the government to decide what is best for India, and its determination overrides what might be a democratic disagreement. Due process was the last obstacle for the government to push things through, and now that too seems to have fallen.
The role of the Supreme Court, with all due respect to the highest court of the land, seems to be limited by three factors: first, who will challenge a government with such a massive mandate, such determination, so much time, and such contempt for contempt of court? Second, there is uncertainty about whether the Court itself will list matters of significance rapidly enough so as not to allow the government decision to become a fait accompli. Third, there is doubt about whether constitutionality alone will determine a final outcome, and whether creative exceptions may creep in.
What started with Aadhaar, both in the Supreme Court and in Parliament, has only been escalated: it is the new norm.
Under these circumstances, the longer term impact is on trust in the Court, the government, the processes, and in effect, “the system”. This is perhaps why there appears to be a sense of fatalism creeping in among those working in the policy space. Do norms matter? Does compliance with the law — for example, in case of the proposed amendments to rules related to Intermediary Liability, which are expected to be notified as soon as this session of Parliament ends — matter?
There are several significant changes ahead of us as India digitises further. Ramming through policies without debate and transparency, and the idea that the Government, and hence Parliament, will make law irrespective of constitutionality and/or the Supreme Court, will erode trust in participation in the economy and in the democratic processes.
Those cheering the current political determination should take heed.
Also read: The future of Internet policy in India