On Constitutional Morality – 1

Are we destined to oscillate between populism and constitutionalism?

Here’s an extended excerpt from Andre Beteille’s Dr B R Ambedkar Lecture, delivered at the Administrative Staff College of India, on February 25th, 2008, as published in EPW.

While independence was no doubt a watershed in the life of the nation, things have not stood still since it was attained. I have referred to those days as days of high expectations. Not surprisingly, many of those expectations could not be met. The people of India have gradually learnt that their own elected leaders can be as deaf to their pleas as the ones who came from outside. Sometimes they have shown themselves to be even more venal and self-serving than the British who ruled India. Or perhaps, because Indians had developed such high expectations of their own elected leaders, they lost patience with them more quickly and became more peremptory with their demands on them.

The strength or weakness of constitutional morality in contemporary India has to be understood in the light of a cycle of escalating demands from the people and the callous response of successive governments to those demands. In a parliamentary democracy, the obligations of constitutional morality are expected to be equally binding on the government and the opposition. In India, the same political party treats these obligations very differently when it is in office and when it is out of it. This has contributed greatly to the popular perception of our political system as being amoral.

In a political system in which the principal parties, whether in office or in opposition, have shown themselves to be venal and self-serving, it would be folly to close the door on civil disobedience. But civil disobedience, as no one understood better than Gandhi, is not a panacea, and it does not come without a price. Gandhi was unyielding in his view that civil disobedience had to be non-violent, and he was prepared to eat humble pie, and call it off when it took a violent turn.

Reflective advocates of it have pointed out that civil disobedience cannot be a matter only of disobedience, it must also be civil. For Gandhi, civil disobedience, as a form of non-violent resistance, was essentially a moral force. It required the cultivation of distinctive moral qualities to pass muster as a form of non-violent resistance. In particular, it required among its practitioners a habit of obedience to the laws, including inconvenient ones [Gandhi 1961]. Civil disobedience, in this view, cannot be aimed against inconvenient laws, but only against unjust ones. It is another matter that leaders of public protest in India have never found it difficult to present inconvenient laws as unjust ones.

The virtue of civility is an important component of constitutional morality. It calls for tolerance, restraint and mutual accommodation in public life. Civility is a moderating influence which acts against the extremes of ideological politics. “It restrains the exercise of power by the powerful and restrains obstruction and violence by those who do not have power but who wish to have it” [Shils 1997: 4]. Civility is an important condition for the smooth operation of public institutions such as universities. Universities in the modern world have learnt to live with protests, agitations and demonstrations. But when these acquire an adversarial or an antinomian form as a matter of habit, as they did on the eve of the Emergency and in its aftermath, something goes out of the life of the university as a centre of science and scholarship. It is against this kind of possibility that Ambedkar had issued his warning about the grammar of anarchy.

Civil disobedience may take a persuasive or a coercive form [Haksar 1986]. Gandhi certainly did not intend it to be used as an instrument of coercion. He agonised all the time that the movements he led might degenerate into anarchy and violence; he was no less mindful than Ambedkar of the destructive potential of the grammar of anarchy. Yet, it will be hard to deny that agitations, demonstrations and rallies undertaken in the name of civil disobedience have increasingly become coercive not only in their consequences but even in their intentions. What Ambedkar had hoped would die down after independence has in fact become intensified since 1977.

There are responsible citizens who would make a case for mass rallies and demonstrations even though they are fully aware that they can become coercive. They say that they are forced to take the risk of anarchy and disorder where they know that the authorities, whether in the government or in public institutions such as universities, pay no heed to reasonable persuasion but respond only to threats. It is a fact that in recent decades public authorities have tended to respond more readily to threats than to persuasion even to the point of violating their own norms. As I have said, citizens alone cannot be expected to adhere to the norms of constitutional morality if the state persistently disregards those norms.

Populism has not only become a part of our democracy, but from time to time it puts forward its demands in a very imperious form. When that happens, many naturally feel that the Constitution itself is under threat. At the same time, no serious move has ever been made to discard the Constitution, or to design a different one to replace it.

Even during the darkest days of the Emergency, Indira Gandhi retained a residual attachment to the Constitution, and JP’s defiance of it in the cause of total revolution was at best half-hearted. Our politicians may devise ingenious ways of getting round the Constitution and violating its rules from time to time, but they do not like to see the open defiance of it by others. In that sense the Constitution has come to acquire a significant symbolic value among Indians. But the currents of populism run deep in the country’s political life, and they too have their own moral compulsions. It would appear therefore that the people of India are destined to oscillate endlessly between the two poles of constitutionalism and populism without ever discarding the one or the other. [EPW]