The Ethical Decay of Democracy

3. Defection and the trade in legislators

The Tenth Schedule was enacted precisely as a remedy for ethical decay, and it is worth putting it here rather than only at chapter 780. Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, upheld paragraph 2 as salutary and intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections, which is the Supreme Court naming the problem in MU's own vocabulary.

And the decay adapted. Resignation in numbers followed by re-election on another party's ticket, delayed decisions by Speakers, and mergers within the Schedule's exceptions have reproduced much of what the Amendment was enacted to stop, which is why the Court's identification of the Speaker as a tribunal subject to judicial review matters practically.

4. Weakening of the institutions that say no

The conditions at chapter 830 depend on bodies able to rule against the government and be obeyed: courts, the election commission, the audit institution, the information commissions and the investigating agencies. Decay here takes the form of appointments, of resources, of the timing of decisions and of the treatment of officials who decide inconveniently, none of which requires any rule to be broken.

5. The decline of deliberation

Legislatures sitting for fewer days, bills passed without committee scrutiny or after brief debate, the use of money bills to avoid a second chamber, and adjournments. The Tenth Schedule contributes, because a member whose vote is fixed by a whip has little reason to be persuaded and none to persuade. Chapter 780 sets out the cost.

6. Communal and caste appeals

Mobilisation by religion or caste in place of programme, which converts an election from a choice between policies into a census of communities and makes the losing group's position permanent rather than temporary. This is the condition at chapter 830 of a sense of common citizenship failing.

7. Manipulation of information

Chapter 860's material: coordinated disinformation, the concentration of media ownership, and the use of platforms to target messages that nobody else sees, so that different voters are addressed with inconsistent claims and no common set of facts survives.

Why the decay is hard to resist

Each step is lawful. Nothing in the list requires a rule to be broken, which is what makes it decay rather than crime.

Each step benefits whoever is in office, and the remedy must be enacted by those who benefit.

The forms remain, so the appearance of democracy is preserved and criticism sounds exaggerated.

And the ratchet. A party that suffers from the decay while in opposition uses the same instruments when it wins, because unilateral restraint is costly.

What resists it

Disclosure, which is the Indian courts' preferred remedy, in the 2002 decision and again in the electoral bonds judgment. It does not prohibit; it makes the fact known and leaves the decision to the voter.

Judicial review, including of a Speaker's decision under the Tenth Schedule for illegality or perversity.

An independent election commission exercising powers under article 324.

A free press and independent research, since almost everything known about criminalisation and funding comes from organisations that compile and publish it.

Federalism, because a party defeated at the Union governs States and retains the capacity to resist.

And the voter. Disclosure works only if it changes votes, and the evidence about whether it does is mixed. That is an uncomfortable finding and an answer should include it: the courts have supplied information and the electorate has not always acted on it.

A worked example

A party wins a State election with 42 per cent of the vote and 55 per cent of the seats. Consider four things that then happen, none of which is unlawful.

It appoints as Speaker a member who then declines to decide a defection petition against eight legislators who have supported the government. No rule is broken. The Court's remedy exists, and the term may expire before it is exercised.

It passes its budget and eleven other bills in six sitting days without committee reference. Lawful, and deliberation has been removed.

It funds its campaign through instruments whose donors are not disclosed. Lawful until the scheme permitting it is struck down, which is chapter 860.

It appoints to the State Information Commission and to the State Election Commission persons who have served the party. Lawful, subject to the statutory qualifications.

Nothing here is a scandal, and that is the point. A student asked about ethical decay should be able to show that the erosion is composed of lawful acts, each defensible on its own, whose combined effect is that the conditions in chapter 830 no longer hold. That is a much stronger answer than a list of scandals.

Distinctions that carry marks

What ethical decay is NOT

It is not corruption. Corruption breaks rules; decay does not.

It is not the failure of democracy. The claim is precisely that the forms survive, which is what makes it hard to resist.

It is not confined to India. The phenomena on the list are discussed in most democracies, and treating them as an Indian peculiarity misdescribes them.

And it is not irreversible. The Tenth Schedule, the disclosure requirement and the electoral bonds judgment are all instances of the decay being resisted from inside the system.

Quick revision

1. The claim: the forms are kept and the conditions at chapter 830 are eroded, so an election continues while ceasing to perform its function. Structural, testable, and not a complaint about individuals.
2. Seven manifestations: criminalisation; money; defection; weakening of the institutions that say no; the decline of deliberation; communal and caste appeals; and manipulation of information.
3. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294: right to know under article 19(1)(a); affidavits directed under article 324 on criminal cases, assets and liabilities and educational qualifications. The remedy is disclosure.
4. Kihoto Hollohan, 1992 Supp (2) SCC 651: paragraph 2 is salutary and intended to strengthen the fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections, which is the Court using MU's own vocabulary.
5. Why it is hard to resist: every step is lawful; each benefits whoever must enact the remedy; the forms remain; and unilateral restraint is costly, so the decay ratchets.
6. What resists it: disclosure, judicial review, an independent election commission, a free press, federalism, and ultimately the voter, whose response to disclosure has been mixed.

Test yourself

1. What exactly is claimed by the phrase ethical decay of democracy? Not that politicians are dishonest, which is a complaint about individuals made everywhere, and not that the machinery has been abolished, since elections are held and legislatures sit. The claim is that the conditions on which democratic government depends are being eroded while its outward forms are preserved, so that an election continues to be held and ceases to perform the functions that made it a means by which the governed consent. It is a structural claim about institutions and practices rather than about particular scandals, and it can be tested by comparing the conditions over time.

2. Set out the principal manifestations. The criminalisation of politics, with candidates and legislators facing serious pending charges. The dominance of money, which restricts who can stand and makes parties dependent on contributors. Defection and the trade in legislators. The weakening of the institutions able to rule against the government, through appointments, resources, timing and the treatment of officials. The decline of deliberation, with fewer sitting days and bills passed without scrutiny. Communal and caste appeals in place of programme. And the manipulation of information through disinformation, concentrated media ownership and targeted messaging.

3. Distinguish ethical decay from corruption. Corruption breaks a rule, is located in individuals and transactions, is detected by investigation and answered by the criminal law. Ethical decay usually breaks no rule at all: each step is lawful and separately defensible, it is located in institutions and practices rather than in transactions, it is detected only by comparing the conditions of democracy over time, and its remedies are disclosure, institutional independence and the response of the voter. That is why decay is harder to resist than corruption, and why an answer built on a list of scandals misses the subject.

4. What has Indian law done about it, and what is the pattern of the remedy? The pattern is disclosure rather than prohibition. In the 2002 Association for Democratic Reforms case the Court held that the voter has a right under article 19(1)(a) to know a candidate's antecedents and directed the Election Commission, under article 324, to require affidavits on pending criminal cases and convictions, on assets and liabilities of the candidate, spouse and dependants, and on educational qualifications. The Tenth Schedule addressed defection, and Kihoto Hollohan upheld it as salutary and as curbing unprincipled and unethical political defections while making the Speaker's decision reviewable for illegality or perversity. The electoral bonds judgment applied the same disclosure reasoning to party funding.

5. Why is ethical decay difficult to resist? Because every step in it is lawful, so there is nothing to prosecute and criticism sounds exaggerated. Because each step benefits whoever is in office, and the remedy must be enacted by those who benefit from its absence. Because the outward forms are preserved, so the appearance of democracy continues and the erosion is gradual. And because of a ratchet: a party that suffers from the decay while in opposition uses the same instruments once it wins, since unilateral restraint is costly and unrewarded.