The dismal functioning of democracy in Indian states

In states, from day-to-day governance to the functioning of assemblies and courts, illiberal and authoritarian practices are on the rise. This requires urgent reversal

Last year, in a move that garnered domestic and international attention, pro-democracy groups Freedom House and the V-Dem Institute downgraded India’s democratic credentials on account of perceived backsliding. These twin moves sparked a heated conversation on the rise of majoritarianism, atrophying checks and balances, and increasing curbs on dissent at the national level.

In a diverse polity like India, a focus on national developments should not obscure the backsliding transpiring in the states. That would be a disservice to both federalism and freedom. (Shutterstock)

In response to these worrying trends, some analysts claimed that federalism offers the first line of defence against illiberalism and democratic backsliding. While federalism can offer a space for democratic negotiation — the Union government’s about-face on three controversial farm laws has been hailed as an example — such arguments elide a simple fact: The state of democracy in India’s states appears dismal.

On issues of day-to-day governance, it is the states, not Delhi, that are charged with most sovereign functions. From law and order to public goods provision and fiscal management, the states are closer to the citizenry and their decisions have a more immediate and pronounced impact on daily life. Yet in nearly every state capital, the executive rules virtually unchallenged. Nearly all chief ministers (CMs) — irrespective of partisan affiliation — have sought to eliminate or marginalise the second-rung leadership. In all political parties today, power is vested in the hands of a single supreme leader or family. Once elected, the pathologies of the top-down party structure are replicated in government. CMs praise devolution from the Centre to the states, but most ensure it proceeds no further.

It is no wonder, therefore, that 16 of 30 sitting CMs have opted to retain — in whole or in part — the home ministry portfolio for themselves. Given the well-documented misuse of police and investigative agencies in service of political gains, most CMs are unwilling to relegate authority over the internal security apparatus.

The efforts of CMs to centralise power is aided by India’s feckless state assemblies. A June 2021 report by PRS Legislative Research notes that for 19 states — for which data were available —assemblies met for an average of 18 days in 2020. Lest one be lulled into thinking this is simply an artefact of the Covid-19 pandemic, these same assemblies met for an average of only 29 days a year between 2016 and 2019. The report also notes that most bills are passed by state legislatures with virtually no debate: Six in 10 bills enacted in 2020 by states were passed on the same day they were introduced. Rather than acting as an independent branch of government charged with scrutinising important policy matters, assemblies have become mere spectators. If Parliament has become a rubber stamp, the record of assemblies is no better — and may, in fact, be worse.

At the national level, troubling questions have been raised about the judiciary’s ability — and willingness — to hold a powerful executive accountable. At the state level, high courts’ (HCs’) proclivity to challenge powerful incumbents also varies. Across states, apex courts are hamstrung in performing their official functions. As of January 2022, the department of justice reports that nearly four in 10 HC judgeships lie vacant. While numerous factors limit the efficiency of India’s courts, the chronic shortage of personnel is chief among them. Roughly 5.6 million cases are pending in HCs, according to a PRS analysis.

Between 2019 and 2020, pendency in the HCs increased by as much as 20%. It comes as no surprise, therefore, that one in five cases brought before the HCs has languished for more than a decade. Such statistics are hardly indicative of a judiciary firing on all cylinders.

Of course, there is a broad array of institutions beyond the judicial and legislative arms that can hold the powerful to account. Take, for instance, state information commissions — the agencies authorised by the Right to Information (RTI) Act to ensure the smooth functioning of the RTI infrastructure in the states. An October 2021 report on the RTI Act issued by the non-governmental organisation Satark Nagarik Sangathan (SNS) makes for depressing reading. SNS found that four state information commissions were found to be non-functional, three of which were completely defunct. Across states, vacancies were the norm while backlogs in processing appeals and complaints have risen steadily.

Political scientists have coined the term subnational authoritarianism to describe concentrated pockets of despotic rule within democratic regimes. That label is often too narrow, as scholars Jacqueline Behrend and Laurence Whitehead have written, for even when fully authoritarian subnational regimes are absent, illiberal structures and practices can take root at the subnational level, reverberating throughout national politics. Indeed, as scholar Neelanjan Sircar has pointed out, the model of domineering executive power seen on display in Delhi was first pioneered in India’s state capitals.

The current situation suggests the need for several urgent areas for reform.

First, legislators in India rarely see parliamentary work as a vital component of their remit. This oversight is, in part, a consequence of the well-intended but self-defeating anti-defection law, which empowers party leaders to rule with an iron grip while removing incentives for rank and file legislators to invest in the parliamentary process. Thus, the anti-defection law has severed a key link in the accountability chain. By the same token, legislators have garnered new executive powers — through constituency development funds and district development authorities —that have subordinated their lawmaking role in favour of development administration. This situation must be reversed.

Second, judicial appointments to state HCs have reached an impasse. According to the memorandum of procedure for the appointment of HC judges, once the collegium finalises its recommendations, the government should act on those choices within a few weeks. Data collected and analysed by legal expert Alok Prasanna Kumar found that the median appointment time is nearly twice that long. What’s more troubling, Kumar notes, is the fact that the government has adopted a “pick and choose” model whereby it expedites the processing of some names, while sitting on others. This practice has given the government the ability to exercise a pocket veto over appointments — a clear violation of the letter and the spirit of existing arrangements. A new settlement is needed to bridge the executive-judicial divide.

Third, there is a renewed impetus for fresh investments in media and civil society organisations that operate at the state and local levels. The rise of investigative digital media that covers nationwide politics has shed light on many recent cases of abuse — from the Pegasus hacking scandal to the misuse of India’s outmoded sedition law. Organisations that do complementary work at the state level exist, but often operate under the radar and starved of resources. These groups are not anti-democratic forces, as often alleged, but strive to ensure democracy works as it should.

The debate about the wellbeing of India’s democracy — including the Union government’s robust defence of its record — should be welcomed. But in a diverse polity like India, a focus on national developments should not obscure the backsliding transpiring in the states. That would be a disservice to both federalism and freedom.

Milan Vaishnav is senior fellow and director of the South Asia programme at the Carnegie Endowment for International Peace in Washington, DC 

The views expressed are personal