Constitutional corruption in India: an analysis of two Bharatiya Janata Party scandals

Purpose – This paper focuses on two examples of constitutional corruption in India where the constitution is used for questionable political reasons by the Bharatiya Janata Party under the leadership of Prime Minister Narendra Modi. Design/methodology/approach – ThepaperreliesonpublicdocumentsandmediareportstoanalysePrime Minister Modi ’ s handling of the purchase of Rafale jet fighters from France and the revocation of Articles 370 and 35A which resulted in the division of the State of Jammu and Kashmir. Findings – Constitutional and democratic norms were violated in both cases, but the Supreme Court did not find any irregularities in the sale of the Rafale jet fighters. The second case is under challenge in the Supreme Court. The analysis reveals how the Modi government has undermined democratic values and used constitutional provisions to pursue its partisan and ideological agenda. Originality/value – The paper focuses attention on the often neglected topic of constitutional corruption in India.


Introduction
Scholars doing research on corruption encounter many constraints (Tummala, 2019, pp. 174-181). However, research on corruption has neglected its most insidious form, constitutional corruption, which adversely affects the foundation of democracy and society in some countries, including India. Constitutional democracy refers to the sustenance of these core values: a representative government that guarantees universal adult franchise with fundamental rights and liberties for all citizens; upholds the rule of law; meets the people's needs and demands responsibly; behaves in an accountable and transparent manner, and maintains an independent judiciary and free press. Levitsky and Ziblatt (2019) contend that while many democracies met violent deaths in the past, the current modus operandi appear to be killing them quietly by using the very same constitutional and legal provisions. The process of "democratic recession" can be observed not only in India but also in other countries like Israel, United Kingdom (UK) and the United States. Prime Minister Benjamin Netanyahu of Israel dissolved the Knesset as he wanted a legislature to allow him to continue his regime and provide him with immunity from prosecution on alleged charges of corruption. That he was indicted for corruption and would be facing a trial during the second week of March 2020 did not seem to have made any difference to the voters as he was returned with a slightly better majority in this third election, but not enough to form a coalition government. Failure to do so might only mean a fourth election for that nation. Similarly, Prime Minister Boris Johnson of the UK prorogued Parliament for five weeks to expedite the implementation of Brexit from the European Union. President Donald Trump was impeached by the House of Representatives on 18 December 2019 for abuse of power and obstruction of Congress. However, he was acquitted by the Republican-controlled Senate on 5 February 2020.
This article contends that to sustain a democratic system of government it is necessary to protect the constitution, which provides the structure and defines the "rules of the game". As artifacts, constitutions grow, live and some die depending upon the social and political dynamics of individual countries. Independent India adopted a new Constitution in 1949 which was written by many constitutional scholars, such as B. R. Ambedkar, which arguably turned out to be the longest constitution in the world, with 395 Articles, 12 Schedules and more than a 100 Amendments to meet the exigencies of a dynamic society. As several authoritative works on the constitutional and political history of post-independent India are available (see Austin, 1966;Guha, 2017;Mahajan, 1986), his article does not dwell on those aspects. Instead, it argues that using a constitution for corrupt purposes such as to advance personal and/or partisan and ideological interests is abhorrent. To sustain that argument, the analysis here focuses on two cases of constitutional corruption: the purchase of Rafale jet fighters from France and the abrogation of Articles 370 and 35A dividing the State of Jammu and Kashmir into two Union Territories bringing them under greater control of the Central Government.

Purchase of Rafale jet fighters
To enhance the capabilities of the Indian Air Force, the Congress party-led United Progressive Alliance (UPA) government of Prime Minister Manmohan Singh in 2007 negotiated with France the purchase of 126 Rafale jet fighters at a cost of ₹590 billion. The Hindustan Aeronautics Limited (HAL), a public sector outfit with nearly 40 years' experience in building aircraft was to be the technical partner. Such an arrangement would have been for India's financial benefit arising from the "offset costs," as the French contractor was required to invest part of the proceeds of the deal in India. However, the contract was not signed before the UPA lost power in 2014.
Prime Minister Modi visited France in 2015 and signed a contract for 36 Rafale jet fighters at a cost of ₹580 billion. As the deal was announced, several questions arose (Nair, 2018;Bharadwaj, 2018). First, Prime Minister Modi acted unilaterally without consulting his Cabinet, contrary to established norms. The convention has been that such deals are approved by the Cabinet Committee on Security. Even the Minister for Defence, Manohar Parikkar, knew about the deal only a week before the announcement in Paris. Second, technically the government proposed to reduce the India-specific enhancements, including those clauses meant to prevent corruption. However, these clauses were eliminated entirely. Third, the government declared that the deal would result in major savings with estimates ranging between 9% (Defence Minister), 20% (Finance Minister) and 40% (an Air Force officer). The final report by the Comptroller and Auditor General (CAG) indicated that the actual saving was 2.86%. Fourth, HAL was dropped as the technical partner and replaced by Reliance Defence Ltd, a private company that was not involved in producing jet aircraft. Moreover, that company was established only 12 days prior to the Paris announcement on the purchase of the jets.
How could Prime Minister Modi unilaterally sign the deal? If the price is cheaper under the new deal, why buy fewer jet fighters? What are the reasons for the different savings estimates provided by the different agencies? Why was an inexperienced private company, Reliance Defence (whose owner is known to be close to Prime Minister Modi), which was in debt and created in a hurry prior to the announcement, selected to replace the more experienced HAL? Was Modi trying to bail out Reliance Defence? Opposition Congress Party leader Rahul Gandhi (quoted in Deepak, 2018) claimed that Ambani's parent company was in debt to the tune of ₹350 billion and would gain ₹450 billion by virtue of the current deal with Reliance Defence. Was this a manifestation of "crony capitalism"?
The Modi government refused to answer the above questions using the plea of "national security," and indicating that there was a "secrecy" clause in the contract that precluded any disclosure. It was also stated that the Indian technical partner was not selected by the Indian government but by the French contractor, Dassault. Francois Hollande, then President of France, said that there was no secrecy clause but his Foreign Minister disagreed. Eric Trappier of Dassault, however, supported the Modi government by claiming that they had selected Reliance Defence without the involvement of the Government of India. This claim was also refuted by President Hollande. Trappier also claimed that the decision to work with the Ambanis was as old as 2011-2012 (during the previous UPA regime), and the Ambanis were preferred for having land (for building the plant) near the Nagpur airport runway. Both claims were erroneous. The working relationship Trappier suggested was with Mukesh Ambani, brother of Anil, who walked out of the deal feeling that it was not workable. Moreover, he had no land even at the time of the Modi announcement. The grant was signed on 10 April 2015, but land was allotted only on 28 August 2015 by Devendra Fadnavis, the then BJP Chief Minister of Maharashtra (the State where the city of Nagpur is situated) who signed the deal in September. Whether, or not, the Modi government lied in so many ways, and if so for whatever reason, are contentious issues.
Given the government's recalcitrance, a public interest litigation (PIL) case was initiated in 2018 in the form of a Writ Petition in the Supreme Court to seek a stay order on the purchase of the Rafale jet fighters. The government lawyer indicated that the pricing details were shared with the CAG, who would in turn place a report before Parliament. Thus everything was above board, he argued. Accepting that argument, the Supreme Court said that it would not examine the technical matters of pricing. Having found no other substantial evidence for them to intervene, the Supreme Court denied the PIL request on 14 December, 2018. However, the Supreme Court said, citing the precedent set in Chief Election Commissioner Manohrlal, V. (2011), thus: [I]t is proceeding in the matter by requiring the Government of India to apprise the Court of the details of the steps taken in the decision making process . . . in order to satisfy itself of the correctness of the decision making process. . . . The requisite information was required to be placed before the Court by the Government of India in sealed cover .
Incidentally, on the next day, the government requested the Supreme Court's permission to amend their previous statement saying that there was a grammatical error in typing the original deposition, and no pricing details were submitted to the CAG, but would soon be done. It was on this basis that a Review Petition, No. 46 of 2019 was further filed requesting the Supreme Court to reconsider its decision (Gogoi, 2019). The Supreme Court will be conducting hearings on this request on 6 May 2020.
In the meanwhile, the reputable English daily, The Hindu, conducted its own inquiry. Five of their findings are highlighted here. First, the price of 36 fighters had actually increased by 41% (compared with what the UPA government was dealing with). Second, three of the seven members of the Negotiating Team (of the BJP government) objected to the higher cost, but were overruled by the other four members. Third, the three dissenting members pointed out that there indeed was a more favorable offer of jet fighters by the Eurofighter Typhoon consortium of UK, Germany, Italy and Spain. Fourth, while the Modi government said that the Prime Minister's Office (PMO) was not involved in any of the negotiations, an internal memo from the Defence Ministry showed that there were in fact "parallel negotiations" by the PMO. And finally, the dropping of India-specific requirements and the anticorruption clause was characterized as "unprecedented concessions" in this deal (Ram, 2019).
Matters took a stranger turn as the Supreme Court, while judging the Review Petition No. 46 of 2019, wanted to see all papers relevant to the Rafale deal. Objecting to the Review Petition, and invoking the 1872 Indian Evidence Act, the 1923 Official Secrets Act and the 2005 Right to Information Act, the Attorney-General declared his intent to proceed against the newspaper, claiming on 7 March 2019 that the documents used by the newspaper were all stolen. But two days later, he backtracked by saying that they were in fact not stolen but only copied, and thus The Hindu publicized "privileged" information. He demanded that the newspaper divulge the source of their leak. N. Ram of The Hindu refused to do. Consequently, a fight, similar to the Daniel Ellsberg case on the Pentagon papers in the United States, emerged (a fact which the Supreme Court referred to). Chief Justice Gogoi (2019), joining two other Justices, on 10 April 2019 asserted the right to free press thus: [I]n long line of cases freedom of the press was recognized. . . . Documents in question were already published in The Hindu, and thus cannot be considered "privilege" of the government. Hence they are public documents. The RTI's objective and purpose was . . . to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. . . . The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal (Emphasis in the original).
Some observers thought that the Rafale purchase would be Modi's Bofors, and that he would lose the general election in 2019. To provide a brief synopsis of the Bofors scandal, Congress Prime Minister Rajiv Gandhi in March 1986 signed a deal with a Swedish company, A. B. Bofors, for the purchase of 400 howitzer guns at a cost of ₹14 billion. In April, the Swedish Radio claimed that the company paid bribes to the tune of ₹60 million to several Indian politicians and defence personnel to secure the deal. Critics accused Rajiv Gandhi of taking part of the bribe himself and hiding it away in a secret Swedish bank account. The middleman involved in the deal (besides some Indians) was an Italian, Ottavio Quattrocchi, who was close to the Gandhi family (Chawla, 1997). Furthermore, Rajiv Gandhi's wife, Sonia Gandhi (current President of the Congress Party), is an Italian. Rajiv was exonerated in the case but lost the following election partly because of the Bofors scandal. He was assassinated in 1991. In 2002, the Delhi High Court quashed all charges pertaining to this issue, but the Supreme Court reinstated the case the following year.
Quattrocchi left India and was living in Argentina when the Central Bureau of Investigation (CBI) was looking for him. As India does not have an extradition treaty with Argentina, it is not surprising that the case filed by India in the Supreme Court of Argentina failed. Quattrocchi died in 2013 in Milan, Italy. As Modi was preparing for the general election in 2019, the CBI sought the Supreme Court's permission to continue its probe into the Bofors case. However, the CBI backtracked, and sought permission of the Supreme Court to withdraw its request later (Kumar, 2019). The case was reinstated by the Supreme Court (cited above) and is awaiting final resolution.
It is not useful to compare the Bofors and Rafale scandals for five reasons. First, money changed hands in case of Bofors, but not in the Rafale scandal. Second, then Prime Minister Rajiv Gandhi was implicated in the scandal but was exonerated later. By contrast, there is no evidence of Modi's involvement in corruption. Third, there were middlemen in the Bofors case, the most prominent being Quattrocchi from Italy. In case of Rafale, Prime Minister Modi alone was directly involved. Fourth, the then Minister for Defence resigned and challenged Prime Minister Rajiv Gandhi and won the next elections. However, in the case of Rafale, Defence Minister Parikkar was sent back to Goa as the Chief Minister. Finally, while Rajiv Gandhi lost the election and his Prime Ministership, the Rafale case did not cost anything politically for Prime Minister Modi. Instead, he was re-elected in 2019 with a bigger majority than in 2014.

Jammu and Kashmir issue
To understand the Jammu and Kashmir (J&K) issue, it is necessary to provide the historical context. The British departure in 1947 resulted in the division of the subcontinent into India and Pakistan but also left many independent native rulers in India intact. "Whatever their political proclivities," wrote Collins and Lapierre (1978, p. 131) "the future of India's 565 ruling princes, with their average of 11 titles, 5.8 wives, 12.6 children, 9.2 elephants, 2.8 private railway cars, 3.4 Rolls-Royces and 22.9 tigers killed, posed a grave problem in the spring of 1947." These rulers were in time integrated into the Indian Union by Home Minister Vallabhai Patel, ably assisted by his Secretary, Menon (1961). Only the rulers of Junagadh, Hyderabad and J&K were contentious. Junagadh demurred initially, but offered no resistance. The Nizam of Hyderabad resisted but was subdued by the army.
J&K was a Muslim majority state ruled by a Hindu, Hari Singh, who refused to join the Indian Union and wanted to maintain his independent status. It was after Pathan tribal leaders from the Pakistani side invaded J&K that he beseeched India to protect him. Patel obliged on the condition that Hari Singh acceded to India. Hari Singh signed the Instrument of Accession on 17 October 1947. But by then, part of Kashmir was already occupied by the Pakistani side. A divided Kashmir, with one side occupied by Pakistan and the other controlled by India, remains a chronic problem between the two countries and has resulted in three wars.
After the J&K's accession, Article 370 was added on 17 October 1949 to confer special status and provide the State government with greater control over most of its own affairs. Article 35A was also added to enable the State to decide who its citizens would be, and who would be eligible for special rights on employment, acquisition of immovable property and other privileges. Since then, insurgencies have occurred with militants working to either gain independence or join Pakistan to protect the interests of Muslims. Consequently, several Hindu priests fled the State. Since 1990 there are 45,783 casualties, including 22,544 terrorists, 17,311 civilians and 5,926 security personnel (Chengappa, 2019, p. 30). To contain the insurgencies and maintain law and order, the Indian army, endowed with special powers under the Armed Forces Special Powers Act (AFSPA) 1958, made its presence felt prominently. The AFSPA empowers the Governor of a State to declare it a "disturbed area," and enables the Central Government to move armed forces and other security personnel who are allowed to conduct operations and arrest anyone without a warrant. Continued use of these powers became a major irritant to the natives.
For both the BJP, and its progenitor, the Rashtriya Swayamsevak Sangh (RSS), which subscribe to the concept of "akhand Bharat" (undivided India), a State with special status is anathema. Consequently, as the only majority Muslim State receiving favorable treatment in India, the existence of J&K is unacceptable to the BJP and RSS. The BJP did not hide its feelings, and vowed for a long time to remove Articles 370 and 35A from the Constitution to integrate J&K with the other Indian States. The general election manifesto of the BJP promised to do so. Nevertheless, the BJP entered into a coalition after 2014 with the Chief Minister Mehabooba Mufti of the People's Democratic Party in J&K. However, the coalition ended in June 2018. In November, former Chief Minister Mufti informed the Governor that she found enough allies to form a new coalition government. Governor Patel, a BJP appointee, dissolved the Assembly and claimed that he did not receive Mufti's message, and called for fresh elections. Experienced civil servants recommended that the election be held in June. The BJP leaders preferred the election to be held in November instead of June, claiming that the militants could hide in tall grass and disrupt the election. Prime Minister Modi and Home Minister Shah also claimed incorrectly that they were fulfilling Patel's desire (Thapar, 2019) and used the powers invested in the President under the original Order of 1949 to abrogate Articles 370 and 35 on 5 August 2019.
Consequently, the State was bifurcated into J&K and Ladakh, and was designated as Union Territories (UTs), not separate States. Thus India now has 28 States and 9 UTs. This arrangement was formalized ironically on 31 October 2019, a day designated as "National Unity Day," which happened to be the birth anniversary of independent India's Home Minister Patel, who integrated the States into the Indian Union. New Lieutenant Governors were sworn in thus bringing the two new UTs under direct central government control. A total lockdown was declared. All communications were cut off, including the Internet, which had 4.5 million broadband users. Travel restrictions were also imposed, and more than seven million people were confined to their homes incommunicado. With the exception of the opposition parties and a few intellectuals, the majority of the nation seemed to have accepted with little criticism, even with some exultation, the decision of the government. International reactions were also muted, except for human rights activists.
When Rahul Gandhi, as President of the Congress Party, raised his voice against the abrogation of the Articles, the division of the State and the trauma of its citizens, the Governor of the State openly stated that he would be willing to send an airplane for Gandhi to come and see for himself how everything was peaceful and going well. Gandhi refused saying that he would rather have the freedom to travel and talk to the people, a request which was denied. When a group of opposition party leaders later went to see what was happening, they were detained at Srinagar airport (the airport hub for travel to Kashmir) and sent back.
Several political leaders, including Chief Minister Mufti and thousands of activists, were arrested, and held in secrecy. Those detained were 144 minors, including a nine year old (Mohammad, 2019, p. 3). Farooq Abdullah, former Chief Minister of J&K was among those detained, and has not been seen, or heard, since the 5 August abrogation. In May 2019, it was announced that he was detained under the Jammu and Kashmir Public Safety Act, which is akin to the Public Safety Act (PSA) applicable to the rest of India. Detainees under these Acts, purportedly to ensure public safety, do not have the same rights available for those normally arrested who can seek the reasons for arrest and apply for bail. Moreover, State Public Safety Boards would review, not the courts, the situation of those detained. These Boards are allowed 12 days to decide on the legitimacy of detention, and only if the government does not claim that public safety would not be endangered. Public safety is determined by what the government thinks it is. Such detentions may be extended for two years. Bora (2019, p. 6) documented that only 9% of detentions in J&K during 2016-2017 were upheld by the Boards, and as many as 81% were later thrown out by the courts on appeal, which shows how this power can be, and was, misused. Ironically, Abdullah was one of those who argued that J&K should remain as part of India. Several habeas corpus writ petitions are pending seeking Abdullah's presentation before the Supreme Court, just as the abrogation of the Articles is being challenged. Exasperated as it was, the Supreme Court chided the government on 17 September 2019 suggesting that they "restore normalcy" in Kashmir as soon as was possible. As the Internet has been disrupted for over 150 days, the Court on 13 January 2020 also said that such interruption could only be "temporary", and an indefinite closure is "impermissible". It did not seem to matter for the Modi government that its actions had resulted in denying the fundamental right of communication among citizens and the disruption in commerce and other economic activities.
As elections to the Block Development Councils were scheduled for 24 October 2019, the leaders of all political parties were released on 2 October, nine weeks after their detention. The elections were peaceful even though all the former Chief Ministers, Farooq Abdullah, Omar Abdullah and Mehbooba Mufi, remained in detention. Farooq Abdullah was released on 13 March 2020, nearly after seven months detention without any explanation. And those who were released had to execute bonds promising that they would not comment on any of the recent developments, and would not take out any rallies for one year (India Today, 2019). Strangely enough, Home Minister Amit Shah, when asked what he could do to release the former Chief Ministers, feigned that the matter was not in his hands. The decision, he said, has to be made by the Army and Police who are holding them (as if they could do so on their own). He did not at least suggest that the law should take its course, however legal or illegal their detention. Previously he also observed that someday Article 370 might be restored adding to the lack of clarity in thinking on the issue. Noteworthy is the fact that just as their six-month preventive detention was to end on 13 February 2020, both Omar Abdullah and Mehbooba Mufti were rebooked under the more stringent PSA on 7 February 2020.
On 13 October, 71 days after the division of the State, phone services were restored, but with a caveat. Only those subscribers with postpaid accounts are operative, not the prepaid ones. And people began complaining that the phone servers had charged them even when they could not use the phones during the two months of blackout of all communications. Similarly, partial Internet service was restored to entities such as hospitals in January 2020.

Discussion
The above analysis of the two cases demonstrates a total disregard of established constitutional and legal norms in pursuit of partisan and ideological tenets of the BJP under the leadership of Prime Minister Modi. The case of the abrogation of Articles 370 and 35A with regards the State of J&K should not be surprising as the party's intentions were not a secret as reflected in its election manifesto. Indeed, Article 3 of the Indian Constitution provides the means for the "formulation of new States and alteration of areas, boundaries or names of existing States" by Parliament. However, it is stipulated that the State legislature's views must be sought before any such action is taken. In case of J&K no such consultation occurred. Neither the State population nor the Legislative Assembly was consulted. It was all a simple unilateral decision of the government which was put through the Parliament.
Regarding the Rafale jet fighter purchases, so far no information was released despite the several questions raised. It is agreed that in a democracy the government is answerable to the Parliament and the people at large for all its actions and inactions. Moreover, the voters have the right to know. The Right to Information Act guarantees this right. An informed citizenry is considered the sine qua non for an active democracy. There is the important principle of governmental accountability and transparency in government decisions is also expected. But all these principles are given short shrift. The Modi government has remained silent by invoking the argument of "national security."

Conclusion
The largest working democracy in the world, India, which is the main focus of this article, saw some shrill voices from the opposition parties, some media and a sprinkling of academics, but in general it was all taken in stride. Indeed, several challenges are moving through the courts. But both the Rafale and J&K issues seem to be fait accompli. However, lest anyone believes that there was a closure, the Supreme Court left the door open by saying that it would "not stand in the way" of the CBI, the lead anticorruption agency in India, if it wants to pursue the complainant's petition (subject of course to the permission of the government as the Prevention of Corruption Act requires for the CBI to deal with cases involving any senior official). It is safe to assume that the CBI would not pursue the matter further. The Supreme Court itself in the past characterized the CBI as a "caged parrot", working as a handmaiden of the incumbent regime (Tummala, 2013, p. 178). Nevertheless, it is clear that the Modi government has flouted almost all constitutional norms enumerated at the beginning of this article and his actions have not hurt him politically, except for the loss of the State governments of Maharashtra and Jharkhand in the most recent elections.
Larry Diamond (2019, p. 28) identifies several criteria for sustaining a democracy: legitimacy, tolerance, trust, moderation, flexibility and compromise. He further quotes Sidney Hook who contends that democracy requires "an intelligent distrust of its leadership," including a hardy skepticism "of all demands for the enlargement of power, and an emphasis upon critical method in every phase of education and social life." Furthermore, "where skepticism is replaced by uncritical enthusiasm and the many-faceted deifications which our complex society makes possible, a fertile soil for dictatorship has been prepared." In a parliamentary democracy, it is not difficult to notice that a political party controlling a logrolling majority can deteriorate into a party dictatorship. The transition from a single party dictatorship to that of a dictatorship of the leader is but a small step. India is not unfamiliar with this syndrome; Prime Minister Indira Gandhi declared an Emergency in India from 1975to 1977. Levitsky and Ziblatt (2019 warn that democracies die when political parties fail to be the gatekeepers against demagogues and charlatans who undermine democratic institutions after assuming power. Is constitutional democracy dying in India? Is India headed in the wrong direction? Not quite. What can be done? Walter Scheidel (2019) has recommended the "competitive fragmentation of power" at the local and State levels and let their leaders suggest solutions. However, India's first Prime Minister, Jawaharlal Nehru, thought that the village was nothing but a den of ignorance. However, if we lose faith in the general public, what else is left in, and for, a constitutional democracy? Guha (2017, p. 782) correctly points out that India can take pride in its democracy, at least when it comes to elections, which have been in general fair and corruption free, although with some occasional violence. And India has made great strides in terms of development of the country. Pondering over the future, Guha quotes a famous Bollywood comedian, Johnny Walker, who when asked what the prospects are, responds: "Boss, phipty/phipty [fifty-fifty]." We hope the percentage is a lot more.