India has a Law Commission, which is mandated to advise the government on complex issues of law and help the government think ahead on legal issues that have an impact on society. The 22nd Law Commission was notified in 2020 and its three-year term is about to end. But the Commission does not really exist, so ending it will be tough. It has never had a chairperson, any member or even a part-time member. This is not Schrödinger at work but a perfect metaphor for the hollowing out of institutions in India, now in full view. These institutions are part of an architecture of checks and balances around elected governments so they do not start functioning like monarchies or Sultanates.
‘Vacancies’ in significant institutions are telling us a dark story. It’s hard to document how institutional pillars of a vast and complex democracy function, and how they do not.
The nature of ‘vacancies’ in significant institutions are telling. The 22nd Law Commission was notified in 2020 and its three-year term is about to end. But it does not really exist, so ending it will be tough.
There is just one acting Central Vigilance Commissioner, Suresh N Patel (a banker). The other two positions are vacant and have been so since 2020.
The Lokpal only has an ‘acting’ chairperson, asked to act as such on 28 May 2022. There are critical vacancies, with two of four judicial member posts lying vacant.
A chief on extension, in crucial jobs, for long periods, undermines public confidence in the agency and of his/her juniors and the team. However, both the CBI and the ED now have directors serving on extensions.
The absence of critical checks and balances is not about just ‘policy paralysis’ but the result of a dangerous politics of centralisation.
There have been detailed analyses of the National Commission for Protection of Child Rights (NCPCR) and the Human Rights Commission acting as the arm of the Executive by not posing any questions but only serving to amplify or forward the political narrative of the ruling party. But in cases where institutions go missing because no one is appointed to perform those roles, it means that the jobs they were meant to do – acting as sentinels and as third umpires and referees in the busy place that a living democracy is supposed to be – are simply not done. The Executive then has a free run.
A Long List of Hollowed Out Institutions
Which are the other prominent institutions with no one in the building?
One, there has been no Chief of Defence Staff for more than eight months after the unfortunate death of Gen Bipin Rawat last year on 9 December 2021. The CDS post, we were told, was critical and the entire defence set-up was being restructured. Agniveer has been introduced without a pilot project or discussion and also without a CDS to take responsibility for its overall rollout and instil confidence.
Two, there is just one acting Central Vigilance Commissioner, Suresh N Patel (a banker). The other two positions are vacant and have been so since 2020. Set up by a government resolution in 1964, the Commission was accorded the status of an independent statutory authority in 2003. As the apex integrity institution, it is mandated to fight corruption and ensure integrity in public administration and governance processes.
Three, the Lokpal only has an ‘acting’ chairperson, asked to act as such on 28 May 2022. There are critical vacancies, with two of four judicial member posts lying vacant. The Lokpal describes itself as “the first institution of its kind in independent India, established under the Lokpal and Lokayuktas Act, 2013, to inquire and investigate into allegations of corruption against public functionaries”.
But a former chief justice of the Allahabad High Court, Justice Dilip B. Bhosale, who was one of the four judicial members appointed in March 2019, resigned just nine months after taking oath. He told The Print, “I felt I was wasting my time … I was sitting absolutely idle … If the Lokpal continues to function in this manner, it will fail to meet its objective. It will not deliver.”
Four, the Enforcement Directorate is mandated to investigate offences of money laundering and violations of foreign exchange laws. As revealed in Parliament this week, the Modi government is responsible for more than two-thirds of the cases registered under it in 17 years. Its use has grown enormously and it is continuously in the news, especially when BJP’s political rivals are involved. Its pursuit of people in politics has seen a curious coincidence.
An Era of Unjustified 'Extensions'
Five, according to the 2005 rules, the Home and Defence secretaries and the directors of the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) were to have two-year tenures. But a peculiar syndrome of having a chief “on extension” has dogged this sensitive institution.
A chief on extension, in crucial jobs, for long periods, undermines public confidence in the agency and of h/er juniors and the team. Enforcement Director Sanjay Kumar Mishra retired in 2020 and continues to be in the office on extension. Despite the Supreme Court’s orders in 2021 that no further extensions should be granted to Mishra, he got one; he became the first beneficiary of the controversial ordinance promulgated by the Modi government immediately afterwards to provide for a longer term.
Six, the Research and Analysis Wing (RAW) Chief, Samarth Goel, is also on a year’s extension. RAW is also an important piece in the institutional architecture of information and security.
Seven, the Comptroller and Auditor General of India (CAG), the country’s top financial watchdog, is in office. But an RTI by The New Indian Express established that the reports were not quite up to mark. The CAG’s peak output was in 2015 – a year after Modi the government took office. The agency’s defence audit reports fell from eight in 2017 to zero in 2020. In three years before 2014, under Prime Minister Manmohan Singh, the CAG filed 39 reports in 2011, 26 in 2012 and 34 in 2013. In 2014, this figure went up to 37 before hitting the peak in 2015 at 55.
Over the next five years, the number saw a sharp dip: 42, 45, 23, 21, and 14 in 2016, 2017, 2018, 2019 and 2020, respectively. This, the newspaper found, “was a fall of 74.5 per cent” in CAG audits connected to the central government and its ministries.
Eight, The Central Information Commission had missing members and a missing head for many years in the past eight years till petitioners approached the Supreme Court to ensure appointments were made and information was not gagged. The Supreme Court last year directed the Centre and states to file status reports on compliance with its 2019 verdict for a time-bound filling up of posts of Information Commissioners under the Right to Information Act.
Centralisation Is the Unsaid Word
When there are no appointments made and the process of appointments is not seen as transparent, smooth and predictable, it has far-reaching implications. The appointment of persons on extension leads to the credibility of the person and institution being hit as well as the service and the teams getting affected. Extensions are interpreted as votes of no-confidence in the service.
Institutions play an important role in enforcing diagonal accountability of the Executive. Political scientists cite that the accountability of the government is vertical to the people, horizontal to the legislature, and diagonal to institutions, media and judiciary. Citizens get a responsive and alert government only when the pulls and tugs on all sides are maintained.
It is tempting to cite neglect and incompetence of the political executive as reasons for empty offices. But the collapsing scores of India on all indices of democratic functioning force us to confront a bleaker truth.
The government's relentless search for a loyalist in each of these important offices in order to circumvent scrutiny has grim consequences.
The absence of critical checks and balances is not about just misgovernance or ‘policy paralysis’ but the result of a dangerous politics of centralisation and control that can hollow out a democracy in full public view. The case of the missing institution is not a disappearance to be taken lightly.
(Seema Chishti is a writer and journalist based in Delhi. Over her decades-long career, she’s been associated with organisations like BBC and The Indian Express. She tweets @seemay. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)