Three thoughts on Independence Day

On freedom, constitutional balance & the dangers of majoritarianism

For quiet contemplation on Independence Day

— A good time to read and reflect on Tagore’s verse

Where the mind is without fear and the head is held high
Where knowledge is free
Where the world has not been broken up into fragments
By narrow domestic walls
Where words come out from the depth of truth
Where tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Into the dreary desert sand of dead habit
Where the mind is led forward by thee
Into ever-widening thought and action
Into that heaven of freedom, my Father, let my country awake.

— On freedom of religion

the emergence of contentious issues relating to the place of religion is also an opportunity for another generation to re-examine the balance the Indian Republic has struck on those very issues, and hopefully, allow us to get past them and onto the more important items on the public agenda. [More]

— On protecting liberty from democracy

we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty? That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. [More]

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The Three Thoughts Archive:
It is a tradition on this blog to use Independence and Republic Days as opportunities for contemplation, reflection and introspection.

Three thoughts on Independence Day 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

and on Republic Day 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005;

A democratic death knell for individual liberty

A referendum is a bad idea

Caught in a political tussle with the Union government that has administrative and “superuser rights”, Delhi’s Aam Aadmi Party government has thrown up the idea of a referendum to decide whether the union territory should become fully a state. Since there is no scope for a referendum within India’s constitutional structure, everything about the proposal—from who are the voters, to who will conduct it to what does any result mean—is an open question.

Regardless, the proposal for a referendum is dangerous, poorly conceived and might destabilise India’s politics more than anyone has imagined. Not for the textual reason that the Constitution does not permit it, but for the deeper, conceptual reason as to why the Constitution does not permit it.

There are two broad arguments for representative democracy: first, the practical transaction costs of taking every issue to all the voters are massive for anything larger than a community of a few thousand people. It would be prohibitively expensive even for a small Indian state to decide every issue by asking voters directly. Technology reduces costs: it is possible that in the coming decades, the availability and adoption of technology will make referenda rather inexpensive to conduct.

So should human civilisation move ahead to direct democracy when transaction costs of referenda are lower than the transaction costs of representative democracy (all that money spent on parliament, legislators and so on)? Not quite. That is because the second argument for representative democracy–even with the quality of legislators that we often detest–is that direct democracy can lead to highly illiberal outcomes. It would be dangerous enough in a homogenous, egalitarian society. It would be extremely risky in a highly diverse society like India’s. Politics is often a contest for relative power among different communities, quite often expressed through imposition or prohibition of their mores. In India we are used to thinking in terms of the majority and minorities in ethnic-religious terms. This is bad enough. But a majority is merely a number, and it is possible for majorities and minorities to form over political issues. Even in polities divided along religious lines, have we not seen conservative elements of religious communities come together to proscribe individual liberty?

That is the danger. The biggest casualty of direct democracy will be the liberty of the individual. The Indian Constitution is a balance between a democracy that expresses the will of the majority, and the fundamental rights of the individual. Weaken this edifice and individual liberty will be the first against the wall.

Referenda are dangerous not merely because people in some states might choose to secede from the Indian Union, but really because rule-by-referenda will be the death knell for the rights of the individual. There is no safeguard for liberty in a referendum.

The AAP government in Delhi would do well not to stoke fires it cannot control. If it does want to assess public preferences–for administrative or political purposes–it can conduct large scale public consultations that ask thousands or hundreds of thousands of people for their opinion. Results of such a consultation will have no constitutional basis, but can go some way in bringing in popular sentiment into public policy.

Related Posts: Dogma, Reason & Democracy; and how to escape the tyranny of the ignorant.

Three thoughts for the Republic

On reason, liberty and the right action

For quiet contemplation on Republic Day:

How to protect Reason from democratically-enforced dogma and escape the tyranny of the ignorant;

– On the liberal nationalist position on free speech (and what liberal nationalism is);

An eight-fold path to transforming India and the self;
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The Three Thoughts Archive:
It is a tradition on this blog to use Independence and Republic Days as opportunities for contemplation, reflection and introspection.

Three thoughts on Republic Day 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005;

and on Independence Day 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007, 2006, 2005, 2004.

Checking judicial populism & policymaking

Judges should not make policy

All manner of players moved into the space created by a combination of the extreme weakness of the Executive and the logjam of the Legislative over the past decade. In stepped ‘civil society activists’, large non-governmental organisations and the judiciary. Of these only the last has constitutional legitimacy and therefore, judicial actions deserve a lot more scrutiny by those who wish to safeguard the Indian republic.

Let’s set corruption and other malpractices aside for now. What should concern the republic is the role the judiciary sees for itself. Instead of concerning itself with its core functions: adjudicating on civil, criminal and constitutional matters, it has entered domains and taken positions that risk further damaging both constitutional balance and good policymaking.

This is about propriety of process, not merits of the outcome. For instance, it made little sense for the Supreme Court to rule that radio spectrum should always be auctioned. Sure, auctions are one of the best ways to allocate scarce national resources, but the absoluteness of a Supreme Court verdict makes it impossible for the government to say, promote innovation in the wireless industry through a different scheme of spectrum allocation. This is just an example: public policies are best made by the Executive because of the need for flexibility and discretion. When policies arise out of Supreme Court judgements, they do so at the cost of undermining democracy, federalism and quite often, common sense.

Yesterday, the Supreme Court announced that it will set up a “Social Justice” bench, for:

To mention summarily, about the release of food grains lying in stocks for the use of people living in drought affected areas; to take steps to prevent untimely death of women and children for want of nutritious food; providing hygienic mid – day meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all citizens irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution etc. are some of the areas where Constitutional mechanism has to play a proactive role in order to meet the goals of the Constitution. [Quoted from Bar and Bench]

This move is problematic along several dimensions. First, it is yet another “fast track court” among many fast track courts. Fast track courts sound good, but work well when there are very few of them, and used very sparingly. A lot of permanent fast track courts slow down the entire system (and according to Supreme Court’s latest figures, it has around 65,000 pending cases.)

Second, by shunting public interest litigations (PIL) onto this social justice bench, it is presuming the PILs only ought to be about social justice. Surely citizens of India must be allowed to file PILs about other important public matters, which may not concern social justice.

Third, the mandate of the special bench is a massive intrusion into policymaking and sets a particular social agenda in concrete. Even the founding fathers of the Indian Constitution were unwilling to do this, for they rightly felt that every generation must have the freedom to solve social problems in the light of their own wisdom and experience. The argument that the Preamble of the Constitution calls for social justice doesn’t wash: the preamble applies to the whole purpose of the republic, not a specific task for the Supreme Court. Moreover, going by the Court’s logic, will it now also create benches for economic justice, political justice, liberty, equality and fraternity as well, as they are all cited in the Preamble? If not, why single out social justice?

From recent comments and the announcement of this social justice bench, it appears that the Court is concerned that the Modi government is likely to reverse the social justice policies introduced by the UPA governments. Even if this impression is accurate, it is not for the Supreme Court to protect specific ideological persuasions, either its own, or of previous governments. In a famous case on Barack Obama’s healthcare policy, the US Supreme Court noted

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.[Reason]

That is a fine principle for the Supreme Court of India too.

The judiciary will fulfil its constitutional role if it performs its core functions well. This means dispensing justice, not hardcoding policy, and certainly not acting in ways that “satisfy the desire of society”. The best way to ensure justice—social, political and economic—is for it to speed up the judicial system. For all the Supreme Court’s exertions, there seems to be little by way of fixing this central problem. The Court should detail how it intends to become more efficient and effective, and demand the same of the Executive and Legislature.

Dogma, Reason and Democracy

How to protect Reason from democratically-enforced dogma

Democracy is popular. Other than self-serving polemic promoted by authoritarian regimes or by dispossessed elite, it is rare to find anyone criticising democracy. For thoughtful people, democracy is, as that Churchill cliché goes, “the worst form of government except for all the others.” Yet some—perhaps even a lot of—scepticism is warranted in terms of democracy’s role in the long war between Dogma and Reason that has been in progress for much of human history.

Indeed, it is possible to argue that most—if not all—big political debates are essentially different forms of the fundamental conflict: should humans follow some form of dogma, or use knowledge, reason & critical reasoning in making decisions. What individuals do in their private lives is less of a concern. How they decide on public issues matters a lot more. Should slavery be banned? Should abortion be declared criminal? Should women be allowed to willingly immolate themselves on the pyres of their dead husbands? Should cloning be allowed? Should we allow foreign direct investment in retail? Should voting rights belong to citizens or to all people living in the country? The most vexing questions of politics are essentially dogma vs reason, playing out in different contexts.

So what role does democracy play in this conflict? Do democratic states always tend to push the moral envelope towards greater reason? For instance, aren’t democracies more liberal than non-democracies? Perhaps yes. But this might merely be a temporary correlation: are they liberal because they are democracies, or democracies because they are liberal? We can’t say for sure, as there are other factors at play that might have made societies more liberal, democratic or both.

Bryan Caplan has a compelling argument on why democracies fail:

“In the view of most democracy skeptics, it fails because it does not do what voters want. In my view, democracy fails because it does what voters want. In economic jargon, democracy has a built-in externality. An irrational voter does not hurt only himself. He also hurts everyone who is, as a result of his irrationality, more likely to live under misguided policies. Since most of the cost of voter irrationality is external—paid for by other people—why not indulge? If enough voters think this way, socially injurious policies win by popular demand.[The Myth of the Rational Voter: Why Democracies Choose Bad Policies]

Mr Caplan’s argument is that people have systematic biases that, unlike random biases, do not cancel each other out. In other words, if biases towards colour of shirts were random in the electorate, then they would cancel each other out and no particular colour would be more likely to win. However, if people had a systematic bias towards purple even to a small degree, the electoral verdict is quite likely to go purple. (Read the book to understand more deeply how this happens)

This argument, in itself, is a powerful indictment of democracy. It explains why democratic governments choose policies that are bad for them. If we factor in “education” (in the sense of reasoning, critical thinking and open-mindedness) then democracies can amplify dogma, in extreme cases, into a vicious cycle where society surrenders to dogma.

Consider a democracy where a simple majority of the people have an unshakeable dogmatic belief that Everyone Must Wear Purple Shirts. The rest of the people have a shakeable belief in everything and make up their minds based on available facts. Since the facts do not point to any advantage of purple shirts, they disagree with the Dogmatists who insist on purple shirts. Let’s assume everyone votes. It is quite likely that the politician who runs on a “Wear Purple” ticket is likely to defeat her competitors. And once she acquires political power, depending on her political strength, she is likely to change public policies to promote the wearing of purple. She is likely to focus on the education system, introducing purple into the curriculum so that she has an inherent advantage against the Reasoning politicians. In the future, politics will be about the shade of purple that people must wear.

In this highly simplified example, Democracy worked, the majority got what they wanted, but Reason lost. The real world is more complex, but the fundamental argument remains valid. To the extent that people subscribe to dogmas, democracy is a risk to Reason and values that derive from it.

Mr Caplan sees democracies failings as an argument for governments to let the market determine economic outcomes (his book consciously limits itself to economics). Given the risk democracy poses to Reason*, and therefore, to itself we should go further. The zeroth requirement is for democracies to be constrained by a republican constitution that affirms fundamental rights.

First, those who prefer a slightly more reasoning society than a slightly more dogmatic one must unequivocally defend freedom of speech and expression. Unpopular and dissenting voices must not only be tolerated but enjoy absolute protection. As my colleague V Anantha Nageswaran noted during a recent conversation on this topic, actors in ancient India enjoyed total freedom and protection for what they said on stage. Likewise, court jesters. Such freedoms are protected in many democracies, but your mileage varies depending on which democracy you are speaking out in. Freedom of speech and expression must be protected in law and in practice.

Second, those who believe minds should not surrender to dogma must hold up the freedom of education. This means that while the government can pursue uniform standards, syllabi and curricula in its role of delivering a public good, it should not be allowed to monopolise the curriculum. People should be free to start and send their children to schools of their choice, teach and learn curricula of their choice, with no interference by the government or self-appointed custodians of public values. If this means some parents send their children to religious schools, nature schools or witchcraft & wizardry schools, so be it. It would be a small price to pay in the defence of Reason.

Third, the separation of powers into the legislature, executive and judiciary is not only for the purpose of ensuring that no single entity is too powerful. It charges the judiciary with the duty to defend the constitution and dispense justice without reference to what is popular. Here again, your mileage varies from jurisdiction to jurisdiction, from time to time. In recent years we have had the US Supreme Court under John Roberts declaring it is not the job of the Supreme Court to “protect people from the consequences of their political decisions”. In India, while courts have been criticised for judicial activism and overreach, cases of judicial populism have received lesser attention. Trials by jury suffer from the defect that they subject questions of guilt and innocence to popular mores. This doesn’t mean trials by judges escapes the defect completely: judges are cut from the same cloth as jurors, and both from that of their compatriots. One way to reduce such risks might be for judges to come from other jurisdictions—rotate them more frequently across states, and bring in foreign judges from similar jurisdictions.

* Disclaimer: In a contest between Dogma and Reason, The Acorn stands on the side of the latter. Hence the implied value judgement.

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.