Following Delhi Chief Minister Arvind Kejriwal’s arrest by the Enforcement Directorate (ED) on 21 March in the Delhi Excise Policy case, the German Foreign Ministry spokesperson made an extraordinary comment. It deserves to be fully quoted so that the sentiment of Europe’s leading country is understood.
The spokesperson said, “We have taken note of the case. India is a democratic country. We assume and expect that the standards relating to the independence of the judiciary and basic democratic principles will also be applied in this case. Like anyone facing accusations, Mr Kejriwal is entitled to a fair and impartial trial. That includes he can make use of all available legal avenues without restrictions. The presumption of innocence is a central principle of the rule of law and must apply to him."
After Germany, the United States commented on Kejriwal’s arrest. Then, the United Nations Secretary-General’s spokesperson made a general comment on the need to protect civil and political rights in India during the election process so that it is free and fair.
The US has the propensity to make gratuitous comments on the rule of law in other countries and this UN Secretary-General spokesperson also freely airs his views on democratic freedoms and civil liberties. However, Germany’s comment, as Europe’s most important state, deserves special attention because it is not generally as free with its comments on India’s respect for fundamental rights and judicial processes as it is with the US.
That is why it begs a special examination. But before that, let's take a look at the Indian response.
The Veracity of the Indian Response to International Criticism
On 23 March, the spokesperson of the Ministry of External Affairs (MEA) issued the following statement, "The German Deputy Chief of Mission was summoned today and conveyed India’s strong protest on their Foreign Office spokesperson’s comments on our internal affairs. We see such remarks as interfering in our judicial process and undermining the independence of our judiciary. India is a vibrant and robust democracy with the rule of law. As in all legal cases in the country, and elsewhere in the democratic world, law will take its own course in the instant matter. Biased assumptions made on this account are most unwarranted."
After the German statement, India had no choice but to strongly repudiate it. It did the right thing in doing so. However, there is one part of the Indian response which should have been avoided.
It was not inappropriate to state that the German statement constituted an attempt to interfere in our judicial affairs but from there, to go on to mention that it was an attempt at undermining the independence of the judiciary, was overdone.
The Independence of the Indian Judiciary Is Unquestionable
The judicial branch of the Indian state has been staunchly independent and no country or power can undermine its independence. Indeed, the spokesperson’s words are liable to be misconstrued to imply that the Indian judiciary has elements of fragility.
Hence, at an appropriate time, the spokesperson should set the record straight. Even if the government felt that the Germans were seeking to undermine the Indian judiciary’s independence, the MEA spokesperson should have clearly indicated that such attempts were futile, for the Indian judicial system’s independence sits on firm constitutional foundations.
This stated the question arises as to why the Germans made the comment that they did.
Were they taken aback that a sitting chief minister was arrested for the very first time in independent India’s history? Or were they voicing the unprecedented feeling in the democratic world that the actions that the government has taken recently with respect to the Opposition parties are, for the first time, leading to queering the pitch in favour of the ruling dispensation in these elections?
India Mustn’t Endorse a 'Reactive’ Diplomacy
If this is so, then clearly, Indian diplomacy has failed to convince the developed and the democratic world that the Indian law enforcing agencies were acting not in a partisan manner but were simply abiding by the law.
Further, these laws and the rules framed thereunder have been endorsed by the courts. It is the duty of a country’s diplomacy to anticipate concerns in this globalised world, diffuse situations, and prevent comments before they are made. That is what is pro-active diplomacy.
Once comments are made by the Germans, then their rejection – and they have to be strongly rejected – makes for "reactive diplomacy". Pro-active diplomacy is a greater test of diplomatic acumen than strong reactive statements.
The US State Department spokesperson said after Kejriwal’s arrest that his country “was closely following reports of the arrest of Kejriwal and encouraged a fair, transparent and timely legal process for him."
Responding to these remarks, the MEA summoned a US diplomat and conveyed this country’s strong objection to them. An MEA statement noted “In diplomacy, states are expected to be respectful of the sovereignty and internal affairs of others. This responsibility is even more so in the case of fellow democracies. It could otherwise set up unhealthy practices”.
The US response to that was to underline that no one should object to it asking for “fair, transparent and timely processes”.
For the External Affairs Minister (EAM) S Jaishankar who has spent a lifetime dealing with the US as a professional diplomat and who has developed such fine equations across the US spectrum of opinion – the left of the Democratic Party being an exception – the US comment would have been a disappointment.
The Strategy That India Must Adopt To Address Such Concerns
In addition to the MEA’s response to comments on Kejriwal’s arrest, Vice-President Jagdeep Dhankhar also rebuked them. He asked that they look within. He also said that those who indulged in corruption should know that it was a path which led to jail. Members of the ruling dispensation and intellectuals associated with them have also asserted that India did well to hold a mirror to those who lectured it for they themselves were flawed.
The problem with these high-pitched reactions is that mature powers who are accused of practising double standards both accept their own flaws and at the same time, shrug off criticism of their flawed democratic systems. That is a path that India should also take.
This is especially because no political party from the Opposition has referred to the German, US, or UNSG’s spokesperson's remarks or launched a scathing attack against the Modi government based on foreign criticism.
Great powers should know the enormous strength of indifference to the criticism of other states of their internal processes or to accusations of double standards. They should also know the need to practice preventive and proactive diplomacy. These principles apply to India too.
(The writer is a former Secretary [West], Ministry of External Affairs. He can be reached @VivekKatju. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them)
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