Three thoughts for the Republic

We must strengthen the Republic

For quiet contemplation on Republic Day:

Why strengthening the republic will strengthen our freedoms; why we need to make this system work; and why protests are not constitutional methods.

The Three Thoughts Archive:
Three thoughts on Republic Day 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005;

and on Independence Day 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

Why protests are not constitutional methods

The right to protest peacefully is not in doubt. The wisdom is.

Longtime readers of this blog will know that The Acorn has been a relentless advocate of constitutional methods in conducting our public affairs. We never tire of citing Ambedkar’s Grammar of Anarchy speech (whose anniversary, incidentally, we celebrated yesterday). Ambedkar said:

“we must…hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. [More here]”

One of the most frequent reactions to criticism of protests and advocacy of constitutional means is “Do you mean to say protests are unconstitutional?” The question has been raised frequently enough so it is important to answer it.

Ambedkar calls these actions “unconstitutional methods“. He does not say that they are unconstitutional. There is a difference. No serious person will deny that Indians have a constitutional right to protest. Article 19(1) explicitly guarantees as fundamental rights the freedoms of speech, expression and peaceful assembly. The constitutionality of peaceful protests is therefore unquestionable.

The question, though, is not whether we have a right to protest or not. The mere exercise of liberty is neither an indication as to its wisdom nor to its efficacy. The question is therefore, about the wisdom and the efficacy of particular actions and their consistency with constitutional morality. This is the crux of Ambedkar’s argument.

For instance, praying to the Almighty is a constitutional act. Sleeping over it is a constitutional act. Protesting peacefully is a constitutional act. Civil disobedience is a special case of peaceful protest, for where it involves disobeying laws of the land, it is an illegal and unconstitutional act. None of these are constitutional methods.

What are constitutional methods? The full answer deserves a book-length treatment. In short, constitutional methods involve engaging the executive, legislature and the judiciary. Through representations to government officials, through persuading and working with legislators, through voting and through actions in court.

These methods are regularly used, do work and in fact deliver the most substantive changes. But there is a curious asymmetry in terms of their standing in the public discourse. While protests and ‘unconstitutional methods’ are romanticised and have a reflexive public appeal, their actual achievements fade in comparison to those achieved by constitutional methods. As Rohit Pradhan asked in an article in Pragati, what are the achievements of Jayaprakash Narayan’s “total revolution” of the mid-1970s? Violence fares even worse. No insurgency has succeeded. We await rigorous empirical evidence but it does appear that change through politics, parliament, legislatures and courts has a much better record on delivering lasting change.

However there is less glorification of these methods and diminishing awareness of what they are and how they can be exercised. This last must be addressed. (At Takshashila, we are attempting this. We have an ongoing policy research project on constitutional methods for civic action and are introducing a course on constitutionalism in our GCPP programme)

A new system is not the answer

The best way to transform India is by making the system work as it should

In a post on his very active Facebook page, Ashwin Mahesh—public policy activist, scientist and politician, all rolled into one—briefly minutes the key theme at workshops he attended in New Delhi: “The basic premise before us now is that the ‘whole system is broken’, so we can’t just offer different solutions that we would like to implement within the existing system. Instead, we need to come up with a new system itself, and that’s where the real hope for the country lies.”

Such sentiments have never been uncommon in India, and certainly not over the last two years, when the confluence of a bad governance, policy paralysis, economic mismanagement and flagrant corruption pushed the middle class out from apathy to outrage. As serious observers have noticed—see, for instance, Anil Padmanabhan’s Mint column today—this churning is due to a gap in what India is and what its crop of politicians think it is. While it is unclear at this time what the churning will lead to, how India’s elite and its middle class act now will determine whether or not the inevitable change will be for the better or for worse.

The quest for ‘a new system’, however, ignores the Indian reality. If it gains traction, it risks plunging us into an even more illiberal system.

Why so? First, contrary to the middle class narrative, Indian democracy is actually working for those who participate in it. Those who find the system “broken” are usually those who are excluded from it, or those who have chosen to exclude themselves from it. Those who are satisfied with the current system are unlikely to be enthusiastic supporters of upheaval. How do we know there are these satisfied people? Because we don’t have blood on the streets despite the immense diversity, social inequality and income disparity. No matter what India Against Corruption and the urban middle classes might say, corruption is not an issue that’ll move the masses into supporting an overhaul. What outrages the middle class, what the middle class says it is outraged by is just one of the many factors in the voter’s mind.

Second, if there has to be a “new system”, then very long established interest groups—with more crowd-pulling power than Arvind Kejriwal—have their own ideas what it should look like. Some of them—like the Naxalites—have guns and do not hesitate to use violence to push their own case. Delegitimising the existing system will create openings for various groups wishing to overthrow the Indian state. The ultimate arbiter in a contest between them will be force.

Third, studying the Constitution and the debates that led to its creation leads one to the conclusion that the founding fathers were far more visionary, liberal and broad-minded than the current lot. Any election for a constituent assembly is going to throw up people who won’t be dissimilar in disposition than the current members of parliament and legislative assemblies. Looking at the way successive generations of MPs have distorted the letter & spirit of the constitution, it is reasonable to assume that the product of their deliberations will be a grotesque assault on liberties. (No, the good people who lead apolitical movements do not have any legitimacy to create a new constitution for an already-functioning democratic republic).

Finally, there’s no guarantee that the new system will work any better than the current one if our attitudes do not change. Our attitudes are the reason why we have bad governance, and not vice versa. If this causal direction is right, even if we acquire a ‘new system’, we’re back to square one. Actually, accounting for the above, perhaps to square minus-ten.

The Constitution and the Indian Republic are India’s best hope. Strengthening the Republic by getting better people into parliament, into government and at all levels of government is the right way. The talent, passion and energy of middle India, its intellectuals and its leaders ought to be directed towards this end.

On the government’s decision to block some social media content

On free speech and extraordinary circumstances

Here’s a segment from yesterday’s NDTV’s Nine ‘o Clock News

You can catch the entire programme here. For more details and an analysis of the blocked sites, see Pranesh Prakash’s post at CIS.

On NDTV: On the draconian cyber law

The draconian Information Technology Rules have created an environment that threatens our freedom

What about free speech, which makes it possible for me to disparage the IT rules as being poorly considered? Under the new rules, users cannot post material online that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwiseunlawful in any manner”.

And who gets to decide what constitutes any of the above? No, not a magistrate or even a government officer. Anyone can send a notice to the owner of a website giving notice of a violation under any of the loose, subjective criteria. It then must be taken down within 36 hours.

Complain about bad service from an airline on your blog, and they can send a take down notice claiming it is defamatory, libellous or disparaging. In the hands of the easily outraged, aggressively hypersensitive and competitively intolerant sections of our population this will have the effect of further chilling freedom of expression. Moreover, the inclusion of the word blasphemy in that list makes you wonder which country we are in.

Actually, we don’t need these new rules to protect us from libel, paedophiles or incitement to violence. There are existing laws for that. A libel is a libel whether committed on paper or in ether. These rules, though, have the unacceptable consequence of stifling free speech. They weaken the ordinary citizen and put another coercive tool in the hands of the powerful and the intolerant. They must be reviewed. [Nitin Pai/DNA]

No kangaroos in Karnataka

The zeal to prosecute corrupt public officials must be matched with tight adherence to the law

You might have missed it in the din surrounding the recent state assembly elections but the Karnataka High Court’s decision in B S Yeddyurappa v. The Lokayukta of Karnataka and others provides an important counterpoint to the clamour for a Lok Pal.

Mr Yeddyurappa had filed a writ petition challenging the Lokayukta’s filing of corruption charges against him, on account of which he was forced to step down as chief minister of Karnataka. Earlier this week, the Karnataka High Court allowed this petition because in its view, Mr Yeddyurappa “was condemned unheard and there is serious violation of the principles of natural justice..”. Now you can go into the text of the judgement for the details but the jaw drops considering the High Court held that the Lokayukta did not follow one of the most basic legal processes.

The High Court further noted that “there is no material placed on record to establish that the petitioner has shown any official favour to the companies” and “suspicion cannot be a ground to tarnish the image and reputation of a person holding a constitutional post”. The jaw drops further.

There are three issues here: first, that the state ombudsman did not give the accused a chance to defend himself. Second, that it didn’t even produce enough evidence for a prima facie case to be registered against him. Third, by leaking its report to the media “a lot of dust was created in the political circle” causing Mr Yeddyurappa to resign as chief minister.

This is not about whether Mr Yeddyurappa is truly guilty of corruption or not. This is not about whether public opinion believes him to be corrupt or not. This is about whether a quasi-judicial entity entrusted with being an anti-corruption watchdog could produce evidence and follow due process to establish his guilt. This is about whether its zeal was matched by its competence, meticulousness and respect for the principles of natural justice.

Now Justice Santosh Hegde, the high-profile Lokayukta who indicted Mr Yeddyurappa is both a experienced judge and an upright person. If the ombudsman could make such a mistake under him, we can only imagine how bad a less experienced and less upright person can be. All it would need to get rid of public officials would be public opinion, a leaked report and a compliant, complicit or conniving governor. Since people believe that all politicians are corrupt, the media loves to conduct trials and governors are loyal servants of the ruling party in New Delhi, it is not difficult to see that a “strong” Lokayukta, untrammeled by the higher judiciary, will be just another political plaything.

Mr Hegde’s own reaction to the High Court verdict is unfortunate. Claiming that his professional experience gives him the knowledge of what constitutes natural justice and when to give the accused a chance to defend themselves, he said “There were three Chief Ministers, two ministers and 797 officers who were indicted in the report. If I was legally required to issue notices to them, it would have stretched on like the Ayodhya case.”

It is hard not to be disturbed by Mr Hegde’s comments. However learned, experienced and well-meaning a person he is, it cannot be left to an individual to decide when an accused should have the right to defend himself. Also, to argue that cases will take too long to conclude if everyone was allowed to defend themselves takes us into kangaroo territory. Whatever the levels of outrage in the media and public discourse over corruption, you can’t dispense with the principles of natural justice.

This episode should remind us, once again, that there are no short cuts or miracle cures to fighting corruption. The populist demand for the Lok Pal comes with a thinly disguised contempt for constitutional processes and legal niceties. Attractive as it may appear to the outraged, once you destroy the latter, you lose the basis to distinguish the legitimate from the illegitimate, but with powerful inquisitors at large. It is a far better idea for us to insist that watchdogs and prosectors match their zeal with competence, humility and meticulous attention to legal processes.

Populism, freedom and democracy

Defending free speech is best done by voting

The Indian governments’ second cave-in over Salman Rushdie at Jaipur last week should worry us. The Rajiv Gandhi government’s surrender to Muslim ‘sentiment’ over Satanic Verses triggered the process of competitive intolerance that has created an environment where anyone—citing religious feelings—can have books, movies and art banned, and their creators persecuted. A quarter of a century is usually sufficient to reflect on the follies of the past, realise the consequences of the mistakes made and resolve not to repeat them. The UPA government could have managed Salman Rushdie’s appearance at the Jaipur Literary Festival better. Here was an opportunity to not only reverse the tide of competitive intolerance but also secure an unassailable position in the political landscape.

Yet, the Congress regime failed. And failed abjectly. All it could do was to use low cunning to create fear and uncertainty among the participants. Those who believe that the first duty of the government is to protect citizens from violence will conclude that the UPA government in New Delhi and the Congress government in Jaipur have failed. After all, if we are to allow violent people to determine what a citizen can or cannot do, why do we need government in the first place?

“But it’s about UP elections!” comes the reply, as if fundamental rights are subject to the political exigencies of state assembly elections. While it is understandable that political partisans—who see everything through the lens of costs and benefits to the party they support—will offer this as an explanation, excuse and justification rolled into one, there is no reason for the rest of the citizenry to accept this as the ‘logic’.

“But under the Indian Constitution, fundamental rights are not absolute and the government has the right to place reasonable restrictions on them” comes another reply. This is an accurate statement. From the debates in the Constituent Assembly, to the verdicts of the Supreme Court and to the opinion of experts in constitutional law, there is no doubt that the Indian Republic seeks a balance between individual liberty and public order. Ergo, some actions by the government to abridge liberty in the interests of maintaining order are constitutionally legitimate. This is intended to give the government flexibility. It would be ridiculous to argue that the Constitution is so constructed to cause the government to yield to threats of violence. It would be wrong to blame the Constitution for a particular government’s cravenness or failure.

What then should we make of this affair? As Andre Beteille explains in his masterful essay on constitutional morality, the Indian system is prone to swings between constitutionalism and populism, with the former asserting liberty and the latter assailing it. Why, though, should populism be opposed to individual liberty?

Phrased differently, why should the government cave in to the demands of the intolerant and not to demands of the liberal? Actually, this is the same as asking “why is it unsafe for women to walk on our streets, why is it that our courts take too long to decide cases, why is it that we need a scores of licenses to start a business, why is it that it is so difficult for our children to get a seat in a good school, why is it that we don’t have decent drinking water, electricity supply, hospitals and, and, and …?” Given the public awareness and indeed consensus that these issues need to be tackled, why is the government so uninterested in pursuing these goals with any seriousness?

The answer might surprise you. It’s because India’s democracy is functioning as it should and the politicians are sensitive to the demands of their voters. The electorate is getting what it wants. The population isn’t. Public discourse in India is unduly influenced by the middle class, not least because it constitutes the market for our media. Middle India believes that that issues that it is preoccupied with should also concern political parties and the government. And when it observes that this isn’t quite what is happening, it is disappointed and—like a hopeless romantic who hits the bottle—drowns its sorrows in cynicism.

Democracy is a numbers game. Those with larger numbers can use the flexibility in the Indian Constitution to have their way to a larger extent. Now we can wish that we had a less flexible constitution where this wouldn’t be possible. But not all wishes have their Santa Clauses. Or, we could start practising democracy. Explaining the failure of the old Indian Liberal Party (in 1943!) B R Ambedkar drew attention to what he called “the elementary fact”, that “organization is essential for the accomplishment of any purpose and particularly in politics, where the harnessing of so many divergent elements in a working unity is so great.”

Technology has made organisation of large numbers of like-purposed people fairly easy. As Atanu Dey has argued, forming voluntary voter’s associations can make an individual voter more effective. It’s being put into action too—see the United Voters of India online platform.

Ultimately, though, it depends on how much of the population becomes the effective electorate. In other words, it depends on whether you vote or not. If you don’t, why blame political parties or the government for giving voters what they want?

Three thoughts for the Republic

On constitutionalism, a competent state and the importance of strengthening federalism

For quiet contemplation on Republic Day:

On constitutional morality; the need to get basic functions right; and on the wages of an imperfect federalism.

Join the Indians for a Strong Republic page on Facebook.

The Three Thoughts Archive:
Three thoughts on on Republic Day 2011, 2010, 2009, 2008, 2007, 2006, 2005;
and on Independence Day 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

On Constitutional Morality – 2

Freedom, self-restraint, recognition of plurality and the scepticism to claims of representation

Here are some excerpts from Pratap Bhanu Mehta’s essay on on constitutional morality from the November 2010 issue of Seminar.

What are the elements of constitutional morality that Ambedkar is so concerned about? His invocation of Grote is meant not as a reference merely to historical rarity, but also as a pointer to the distinctiveness of constitutionalism as a mode of association…For him, the real anxiety was not ‘Constitution’ the noun, as much as the adverbial practice it entailed.

For Grote, the central elements of constitutional morality were freedom and self-restraint. Self-restraint was a precondition for maintaining freedom under properly constitutional government. The most political expression of a lack of self-restraint was revolution. Indeed constitutional morality was successful only in so far as it warded off revolution. Ambedkar also takes on the explicitly anti-revolutionary tones of constitutionalism. In a strikingly odd passage, he says that the maintenance of democracy requires that we must ‘hold fast to constitutional methods of achieving our social and economic objectives. It must mean that we abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha.’

For the second element of constitutional morality is the recognition of plurality in its deepest form. What is surprising is that Ambedkar turns out to be as, if not more, committed to a form of non-violence as Gandhi…The only way of non-violent resolution amidst this fact of difference is securing some degree of unanimity on a constitutional process, a form of adjudication that can mediate difference. Unilaterally declaring oneself to be in possession of the truth, setting oneself up as a judge in one’s own cause, or acting on the dictates of one’s conscience might be heroic acts of personal integrity. But they do not address the central problem that a constitutional form is trying to address, namely the existence of a plurality of agents, each with his/her own convictions, opinions and claims. Continue reading “On Constitutional Morality – 2”

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. Continue reading “On Constitutional Morality – 1”