In a country where there are thousands of interest groups, with millions of grievances, the dissolution of constitutional constraints is a recipe for turmoil.
This was post from my highly irregular newsletter — sharing my concerns about the precipitous drop in rule-of-law and rule-by-law in today’s India.
The ongoing situation where hundreds of thousands of farmers from the states around Delhi have laid siege to the national capital, protesting against reforms aimed at freeing them from low-level equilibrium is a good example of why India’s drift away from constitutionalism puts a lot of things in jeopardy.
I’ve put my concerns in a few columns I wrote recently, and am sharing the main points here.
The big worry is this: “In a country where there are thousands of interest groups, with millions of grievances, the dissolution of constitutional constraints is a recipe for turmoil.”
Our ancients had a name for the state we are heading towards: matsya nyaya, a state where the big fish eats the small fish. In such a world, there is economic stagnation, social unrest, political violence and worse. To avoid this fate, we must first recognise that our political culture has swung too much towards populism, and that constitutional methods and the promise of justice are not only nice principles but also crucial to holding India together.
Policy issues will always have pros and cons, and benefit some stakeholders and affect others adversely, “but in principle, there is only one legitimate method to resolve them — that of the Constitution. But no side is playing by the Constitution in letter and spirit, and we are hurtling headlong into a grey zone where the rule of law is no longer the yardstick for anything. If the slow drift towards this trishanku zone began right after India adopted the Constitution in 1950, it accelerated in recent decades and is now a landslide. We should worry when Voldemort begins to sound reasonable when he says “…there is only power and those too weak to seek it.” For when we cannot find constitutional answers, it is power that ultimately decides the issue. No side is playing by the Constitution in letter and spirit, and India is hurtling into a grey zone where rule of law is no longer the yardstick for anything. [Full article]
I think India needs a revival of republicanism.
The idea of a republic goes beyond a State whose head is a president and not a monarch. It is fundamentally a restraint on tyranny — whether by the monarch or the majority. A democracy decides on issues based on popularity, often according to the will of the majority. A republic qualifies majority decisions by forcing them to be consistent with a set of principles that even majorities cannot violate. The most important of these principles are liberty, equality, fraternity and justice. That is why Indian constitutional jurisprudence upholds — and I use the present tense with a mixture of hope and anxiety — the ‘basic structure’ of the Constitution. The values enshrined in the preamble, our fundamental rights, the secular nature of the State and the rule of law form this ‘basic structure’ and are beyond the power of any parliamentary majority to change.
Strengthening the Republic is core to what we’ve been trying to at the Takshashila Institution. I recall being publicly pilloried by nice people back in 2011 for arguing that the Lok Pal movement would cause way more harm than any good. But if the Indian Republic is under severe stress today, that movement cannot escape responsibility. Now, ten years after that episode, the nice people should realise that we need a republican movement that insists on constitutional conduct and rule of law; not more concessions to popular tastes.
“While an odd comment by a prominent civil servant drives us into paroxysms of debate over democracy, there is scarcely a whimper at the constant, popular undermining of the republic. Here’s a brief history of the past decade. One government made retrospective laws, violating the most basic premise of the rule of law. A massive public movement rode roughshod over the parliamentary process demanding that parliament enact a law the crowd outside it made. Independent institutions were steadily undermined by a popular elected government. The Supreme Court, among others, demurred over hearing habeas corpus petitions. Protesters seeking entitlements vandalise highway and railway property. Increasingly emboldened religious processions get a free pass from the authorities. Law enforcement authorities take openly partisan actions. In the corporate world, shares change hands based on political power. All around ‘there is too little republic’ and we are not even aware of the dangers of this deficiency.
If the outcome of it all is the rejection and reversing of the necessary reforms, it is not because there was too much or too little democracy, but because too few took the constitutional path in right earnest.
On agricultural reforms and the farmer’s protests: the more you sweat in parliament, the less you bleed on the streets (or indeed, the jungles).
The Modi government could have avoided farmer unrest and protests had it adopted a broad-based social consultation process and taken its time to put the farm bills through the parliamentary process. Skipping the journey and jumping to the destination merely meant that all stakeholders in the agricultural sector received a shock instead of an explanation, a ready-made decision instead of a hearing, and, in many cases, existential fears instead of positive expectation.
At their heart, the agricultural reforms are a major step in liberating farmers from the political economy that they have been trapped in — they provide legal and administrative basis to permit contract farming while protecting farmers’ rights, and they promise to insulate the agricultural sector from price and stock controls. For decades, we have acknowledged that Indian agriculture needs reform, and the chronic distress that farmers face is a consequence of policy frameworks that keep them trapped in a cycle of low productivity, indebtedness, dependence on the monsoon, and ultimately on the government. We knew that the systemic shackles that trapped Indian farmers had to be broken.
But we also knew that structural reform of agriculture will entail rebalancing of Union-state relations, deepening inter-state cooperation, and above all, genuine, wide-ranging, democratic consultation with farmers and other stakeholders. If we have deep disquiet among farmers across the country today, it is because they have genuine fears that the mandi-middleman-MSP system that they know will be replaced with an unknown system of markets, corporates, and technology. And if we have thousands of farmers at the gates of the national capital, it is because the Modi government decided that legislation could come before consultation and persuasion.
The other consequence of skipping the steps of deliberative democracy is that the policy argument plays out in emotions instead of economics. And as the slogan ‘Jai Jawan, Jai Kisan’ demonstrates, in India agriculture has always been cast in emotional, even moral terms. [As an aside, see why moralising is a bad idea]. Most people will agree with the view that unlike, say engineers, auto-rickshaw drivers, or postal workers, farmers perform a different, more socially valuable role. This means even good economic arguments get derided because they do not appeal to our emotions. At the same time, much of the public support for PM Modi and the BJP is also based on emotional grounds. We have, thus, ended up with a clash of emotions, which, unfortunately, is not the best way to settle an issue as important as the future of Indian agriculture. [Full article]
The bottom line is thoughtful people, regardless of their political preferences, must gather around the Constitution. We must insist that everyone play by the rules. It might be simpler than it appears to be; because it all starts with expressing voice.
That’s all in this one. I’ll be back with a couple of things in the coming weeks: one, Takshashila’s multi-pronged work on Covid-19 policy issues; and two, my thinking on China. Until then.
© Copyright 2003-2023. Nitin Pai. All Rights Reserved.