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Constitutional Morality

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.

PERSPECTIVEEconomic & Political Weekly EPW october 4, 200835Constitutional MoralityAndreBéteilleConstitutional morality, apart from its own intrinsic importance, is a subject on which B R Ambedkar spoke with insight and eloquence in the Constituent Assembly. It has been said that Ambedkar has become an icon of the backward classes. This is certainly true. But he is also one of the makers of modern India and the architect of its present constitutional order. His observations on constitutional morality, made at a critical juncture in our social and political life, are of the utmost significance not only for the backward classes or the minorities, but for all Indians. The Constituent Assembly met in an atmosphere of great expectation. The country had attained freedom after a long period of colonial rule, and the possibili-ties of constructing a new social order based on liberty, equality and social harmony seemed inexhaustible. From being subjects of an alien power Indians had become citizens in their own land. The Constituent Assembly brought together a galaxy of outstanding persons, remarkable for their intellectual ability, their political acumen and their moral standing. Yet among all these persons Ambedkar stood out as the most clear-sighted in his under-standing of the contradictions facing Indian society at that time. He saw more clearly than the others the pervasive contradictions between the hierarchical social structure inherited from the past and the urge for a democratic legal and political order forcefully expressed in the Assembly. Like the other members of it, he too had expectations about the future, but unlike most of them he had few illusions about the past. He did not believe that India had a democratic tradition in any meaningful sense; if such a tradition ever existed, it was in a distant past, long since lost inthemistsoftime. The social order of caste was antithetical to the political institutions of democracy, and caste had been the defining feature of Indian society since time immemorial. 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.This is a revised version of the Dr B R Ambedkar Lecture delivered at the Administrative Staff College of India, Hyderabad on February 25, 2008. I am grateful to many persons for helpful comments on earlier drafts of this paper, and, in particular, to Ramachandra Guha, Gurpreet Mahajan and Nandini Sundar.Nearly 30 years ago when I gave the Ambedkar lectures at the University of Bombay, I chose as my subject the changing place of the backward classes in Indian society [Béteille 1981]. That seemed a natural choice in view of my own interest in equality and inequality, and in view of B R Ambedkar’s towering position as a leader of the backward classes. Many developments in our social and political life have taken place since then, and I have developed my own ideas on the backward classes, on social exclusion and on policies of affirmative action [Béteille 1987, 2003]. I decided not to go over the same ground again in this lecture, but to speak on a different and, for me, a relatively new subject. Andre Béteille is professor emeritus at the Department of Sociology, Delhi School of Economics. No doubt the members of the Constitu-ent Assembly were aware of the inequa-lity, conflict and disorder prevalent in Indian society in their time. But most of them had by then acquired the convenient habit of attributing every Indian misfor-tune to the misdeeds of colonial rule. That habit continues among large sections of the Indian intelligentsia to this day. If it is not colonialism, then it is neocolonialism that is the villain. It does not speak well of us to shift the burden of responsibility for all our contradictions and dilemmas on to some external agency, acting either directly or indirectly through forces over which we ourselves never seem to acquire control. No colonial power acts in the interest of the colonised against its own interest. The British who ruled India were not saints; but they were not villains either. They introduced innovations in law and govern-ance, some of which were mutually benefi-cial and continue to be of value even after the end of colonial rule. Our present Constitution owes a great deal to these innovations. The Drafting Committee was attacked more than once for what it borrowed from the Government of India Act of 1935. The Constitution that came to be adopted has a much closer affinity with that Act than with the Manusmriti or any other Dharmashastra. Ambedkar recog-nised this, and he did not hesitate to speak his mind on it. In his closing speech to the Constituent Assembly, he drew pointed attention to the burden of responsibility that the cessa-tion of colonial rule was going to place on the leaders of independent India. “By independence, we have lost the excuse of blaming the British for anything going wrong. If hereafter things go wrong, we will have nobody to blame except ourselves” (ibid: XI, 980). The British left more than 60 years ago, but there is no lack of intellectual ammunition among patriotic Indians, of the left as well as the right, to fire at them and other western nations when things go wrong with us. Absence of a Democratic TraditionThe Constitution was designed to serve the needs of a modern society. It looked tothe future rather than the past. Its
PERSPECTIVEoctober 4, 2008 EPW Economic & Political Weekly36architects did not hesitate to draw upon such elements from the Government of India Act of 1935 as could be adapted to the needs of a free and independent nation. It also drew inspiration from other modern constitutions such as the American, the Australian and the Irish. Ambedkar did not wish to take India back to its past but to prepare it to take its place in the fore-front of the comity of free and independent nations of the modern world. Rightly or wrongly, he felt the lack of a living democratic tradition in India. Indian society was a society of castes and commu-nities. It was not a society of citizens based on the equal consideration of individuals without regard for caste, creed or gender. To transform a society of castes and communities into one of citizens would be no easy task. The Constitution could at best provide a legal framework, a neces-sary but not sufficient condition for such a transformation. It could not by itself conjure into existence the attitudes, dispo-sitions and sentiments without which the transformation could hardly be effective.To be effective, constitutional laws have to rest on a substratum of constitutional morality. Could the presence of such a morality be taken for granted in our country? Ambedkar was deeply concerned over the question. “Constitutional morality”, he said, “is not a natural sentiment. It has to be cultivated. We must realise that our people are yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic” [Constituent Assembly Debates 1989: VII, 38]. It is clear that he was speaking not just of Indians as they were under British rule, but as they had been over a very long span of time.In the absence of constitutional morality, the operation of a constitution, no matter how carefully written, tends to become arbitrary, erratic and capricious. It is not possible in a democratic order to insulate completely the domain of law from that ofpolitics. A constitution such as ours is expected to provide guidance onwhat should be regulated by the impersonal rule of law and what may be settled by the competition for power among parties, among factions and among political leaders. It is here that the significance of constitutional morality lies. Without some infusion of constitutional morality among legislators, judges, lawyers, ministers, civil servants, writers and public intellectuals, the Constitution becomes a plaything of power brokers. Ours is a very lengthy and elaborate Constitution. This was pointed out in the Constituent Assembly itself. Ambedkar’s justification was that the absence of a democratic tradition required the provi-sions in the Constitution to be written out in much greater detail than in the more mature democracies where there was greater consensus on how democratic institutions should function (ibid:VII, 38). Not only were the American and French constitutions very brief compared with ours, but Britain, which had evolved the most successful system of parliamentary democracy, did not have a written consti-tution. The stronger the presence of consti-tutional morality, the less need there is to put everything down in black and white. The Drafting Committee decided not to leave too much to the discretion of future legislatures whose political sagacity could not be taken for granted. “It follows that it is only where people are saturated with constitutional morality…that one can take the risk of omitting from the Constitution details of administration and leaving it for the legislature to prescribe them” (ibid). The venality of legislatures increasingly brought to light by the media confirms Ambedkar’s worst misgivings. Despite the best efforts of the Drafting Committee to make the Constitution fool-proof, it has not been possible to insulate it fully from the vagaries of legislative pres-sures. No democratic constitution can do without provisions for its own amend-ment. These provisions were crafted with great care so as to make amendments difficult and not easy. Nevertheless, the amendment provisions have been used liberally. Already in Nehru’s time, Rajaji, the most sagacious among the nationalist leaders, was warning against the cavalier use of the amendment provisions. The Constitution has been amended close to a hundred times since its adoption in 1950. When it comes to amending the Consti-tution, what seems to count for more than considerations of constitutional morality, is the calculation of numbers. If it has not been amended more frequently, it is in part because getting the numbers together has become increasingly difficult in an era of coalition politics. It is, of course, easier to amend legislative enactments, includ-ing Acts of Parliament, than to amend the Constitution. In a state legislature, where there is a clear though unstable majority, getting an amendment through is a relatively easy matter. It might appear that dissension, discord and clamour in Parliament would make enactments and amendments difficult. This is true to some extent, but bargains can always be made that benefit members across parties in order to ensure the rela-tively smooth passage of a bill. What passes through Parliament and what is held back have begun to appear increas-ingly unpredictable to concerned citizens who watch with dismay parliamentary proceedings on television. There is grow-ing suspicion that legislation is sometimes enacted not in the public interest but in order to accommodate a particular faction, a particular community or, in the extreme case, even a particular political leader. The leader will, of course, have cleared his ground in advance by soften-ing up power brokers of various political persuasions. Resilience of Democracy in IndiaIndia survives as a democracy despite many predictions to the contrary at the time of independence and in the years thatimmediately followed [Guha 2007: xi-xvii]. Ambedkar himself had expressed anxiety about the prospects of democracy in his closing speech to the Constituent Assembly. He pointed to the fragility of democratic institutions in the country and the adverse social environment in which they would have to operate. Looking to the future, he asked, “What would happen to her democratic Constitution? Will she be able to maintain it or will she lose it again?” [Constituent Assembly Debates 1989:XI, 978]. India’s record since independence has confounded the doubters in many respects. Democracy has shown great resilience in the country, and its capacity for survival is no longer seriously questioned by many. Elections are held periodically, and they are reasonably free and fair. The legiti-macy of opposition is acknowledged,
PERSPECTIVEEconomic & Political Weekly EPW october 4, 200837and opposition parties lead a vigorous existence. The legislatures conduct their affairs openly, despite the disorder and horse-trading. The courts enjoy a fair measure of public trust despite mounting allegations of venality against judges. Even the administrative executive has to act with circumspection when it violates the rule of law, which it does frequently ifnot regularly. There is freedom of movement and assembly and, most impor-tant of all, freedom of expression: nobody will deny that in India people are free to speak their minds or that they express themselves openly and vigorously. Whereas 60 years ago, there was anxiety about the survival of democracy, today its continued existence has come to be taken for granted. With India’s success-ful economic performance during the last couple of decades, the country is now held up as a success story for democracy by leaders of many countries, including the United States. It is even said that if democracy does not work in India, it does not have much of a future in the world. Today, the question is no longer whether democracy will survive in India, but what kind of democracy it will be. Here I would like to introduce the distinction I have made earlier between “constitutional demo-cracy” and “populist democracy”[Béteille 1999: 2591, 2000a: 194-96], and to argue that democracy has survived in India not by adhering strictly to the ideal of a consti-tutional democracy but by moving away from it towards a more populist form.It is, of course, well known that demo-cracy has many forms. Moreover, in our times the magic of the word “democracy” is such that many dictatorships would like to present themselves as democracies of the purest kind. The 20th century made us familiar with the idea of “peoples’ demo-cracy” which is very different from the kind of democracy to which the Indian Constitution sought to give shape. The idea behind a “peoples’ democracy”, so far as I have been able to understand it, is to put the interests of the people, viewed as a more or less homogeneous body, above considerations of constitutional procedure, or, as some would put it, above “mere legality”. The proponents of populism do not in principle deny the value of rules and procedures, only they are prepared to override them when that can be justified by an appeal to the interests of the people. It would be a mistake to underestimate the strong appeal of populist democracy, particularly in countries that were late-comers to development and without the strong foundations for the rule of law required for the success of a constitutional democracy. Lenin and Mao were among the great political innovators of modern times, and no one can deny the admiration, not to say veneration, they inspired among ordinary people in their respec-tive countries and outside. Yet they, and particularly Mao, had little regard for the procedural forms essential to constitu-tional democracy which their followers have dismissed as “bourgeois demo-cracy”. Inthe Soviet Union and the People’s Republic of China, “constitutional legality” had often to make way for “revolutionary legality”.A strong argument against constitu-tional democracy has been that it gives the advantage to the bourgeoisie or the middle class over other social classes and hence it makes equality, which many view as coterminous with democracy itself, an early casualty. This argument has been made repeatedly by left intellectuals, and it cannot be easily dismissed. In India it is becoming increasingly common for the elected representatives of the people to claim supremacy for Parliament over the other organs of the state, on the ground that it is closer to the people by virtue of its class composition than the other two organs. But no constitutional democracy can function without a significant place given in it to a professionally trained and qualified judiciary and civil service, and these are both components of the middle class rather than the working class or the peasantry. It is pointless to castigate judges and civil servants for their middle class affiliation when their very profession makes them members of that class. But one can hardly conclude from this that civil servants, judges or even legislators can act only in the interest of the class to whichthey belong and never in the general interest. Writing about Germany on the eve of Hitler’s ascendance, Alan Bullock (1993: 428) observed: “While democratic ideas had failed to take firm root in Germany, the concept of a Rechtsstaat, a constitutional state, guaranteeing the rule of law and judicial independence, was accepted in principle in Prussia and other German states from the end of the eighteenth century and had been consolidated in practice during the nineteenth”. With us, the tendency since independence has been the opposite. Here the democratic urge for equalityappears to have gripped the political imagination far more firmly than the idea of the constitutional state. As I have noted, constitutionalism, because of its alleged class bias has always been viewed with a degree of mistrust in the tradition of Leninist politics, and that tradition continues to have an appeal among important sections of the Indian intelligentsia. Ambedkar, who was well aware of this, did not shrink from expre-ssing his disdain for it either within or outside the Constituent Assembly. In his closing speech he said, “The Communist Party wants a Constitution based upon the principle of the Dictator-ship of the Proletariat. They condemn the constitution because it is based on parliamentary democracy” [Constituent Assembly Debates 1989: XI, 975]. Today, of course the communist parties are somewhat different from what they were in Lenin’s or even Mao’s time. They have learnt to operate through the parliamentary system and to coexist with other parties, not only when they are in opposition but also when they are in government. In a country like India it is impossible for the communists, even when they are in authority, to practise “revolutionary legality” without let or hindrance. But their fascination for its ideals makes their attachment to constitu-tional legality at best half-hearted. Their earlier hostility towards constitutionalism has been replaced by a more ambivalent disposition, due in part to the divisions and subdivisions within the communist movement itself. Constitutional democracy acts through a prescribed division of functions bet-weenlegislature, executive and judiciary. Populist democracy regards such division of functions as cumbersome and arbitrary impediments that act overtly or covertly against the will of the people. Populism sets great store by achieving political objectives swiftly and directly through mass mobilisa-tion in the form of rallies, demonstrations
PERSPECTIVEoctober 4, 2008 EPW Economic & Political Weekly38and other spectacular displays of mass support. Constitutionalism, on the other hand, seeks to achieve its objectives methodically through the established institutions of governance. The Leninist and Maoist traditions of mass mobilisation are not the only inspira-tions for populism in Indian politics. There is also the Gandhian tradition of civil dis-obedience used with great effect during the nationalist movement. No two leaders could be more different than Lenin and Gandhi. Lenin considered violence as a le-gitimate instrument of politics whereas for Gandhi non-violence was the supreme virtue in both principle and practice. How-ever, one has to make a distinction between Gandhi and those who have acted in his name after his passing, which happened before the Constitution was adopted. No one has shown – or can be expected to show – the restraint and moral discipline of which he was the great exemplar. Ambedkar appealed against the politics of mobilisation in the altered conditions created by the Constitution. He conceded that such politics may have been neces-sary to bring about a change of regime but that it could no longer be justified under the new regime. What does it mean to adopt a system of constitutional democracy? “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 economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional meth-ods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar ofAnarchy and the sooner they are abandoned, the better for us” (ibid: 978). It is no small achievement of Indian de-mocracy that, despite the economic crises and social turbulence the country has un-dergone, the Constitution has remained in place for close to six decades. It has been amended many times, and there have been those who have said that it has been de-faced and defiled [Palkhivala 1974]. Yet it remains as an important signpost for the judiciary, and also the legislature. How deeply has the Constitution influ-enced the outlook of ordinary citizens in India? Ambedkar had hoped that our people would learn the lessons of constitu-tional morality in course of time. How much have they in fact learnt? Not very long ago, a prominent member of the union cabinet had said, “I know that most members of Parliament see the constitu-tion for the first time when they take an oath on it” [Guha 2007: 660]. This does not provide much comfort to those who cling to the belief that constitutional values will soon come to prevail in India. Dynasty and DemocracyThe infirmity of constitutional values is brought into relief when the political system undergoes a crisis. It has under-gone many crises, large and small, since independence, and has come out of them more or less successfully. But there can be little doubt that the long-term effect of these crises has been a weakening rather than a strengthening of constitutional values, at least as these were conceived of at the time of independence. The Emergency of 1975-77 and the events that preceded and followed it clearly revealed the connection between anarchy and the abuse of power as two forces that feed on the weakness of con-stitutional morality [Béteille 2000b]. It did not last very long, but it left deep scars on India’s democratic political system. Those who supported the Emer-gency pointed to the turmoil and dis-order, bordering on anarchy,letlooseby various popular movements in Gujarat, Bihar and elsewhere [Dhar 2000: 223-68, 371-406]. Those who opposed it – and they prevailed in the end – pointed to the naked abuse of power and the flagrant violation of the spirit, and sometimes even the letter, of the Constitution during it. The Emergency was bad in itself; to add to its own inherent evil, it created an opposition which legitimised a populist disregard of established institutionsthat has spread its roots in the Indian soil. In the summer of 1975, the prime minister in the face of mounting social and political turmoil, lost her nerve and declared a state of Emergency. The Emergency was meant to quell the turmoil through strong executive action and to secure the compli-ance of the legislature and the judiciary to the executive. It made the arbitrary use of power and its increasing misuse inevitable. P N Dhar, who was then the prime minister’s principal secretary, has documented the way in which the centre of decision-making shifted from the Prime Minister’s Office (PMO) to the prime minister’s house(PMH) (ibid: 300-51). Power began to be exercised from the PMH with little regard for constitutional proprieties, not to speak of constitutional morality. It would be surprising if it were otherwise. From his strategic position in thePMH, her younger son, Sanjay Gandhi, who enjoyed no constitutional authority of any kind, took decisions that caused bewilderment and fear among ministers, legislators and judges. Many of them com-plied with a show of servility far in excess of what was required, revealing to the world at large the infirmity of constitutional values at the top of the political hierarchy. Those who remained loyal to Indira Gandhi point out that the Emergency did not last very long, and that it did not hit people equally hard in all parts of the country. They also point out that it was Indira Gandhi herself who lifted it and called for elections at a time when the political pressure for such a move was not very strong. Her manner throughout the period showed that she was not at ease with herself. Nevertheless, it revealed deep fault lines in the political order. The ascendance of Sanjay Gandhi showed how fragile con-stitutional proprieties are in the face of personal loyalties and family attachments. Indira Gandhi’s conduct made it clear that in the end she could trust neither hercabinet nor her party, nor even her secretariat, but only her son and his cronies. It will be difficult to exaggerate the significance of family, kinship and commu-nity in Indian society. Loyalty to family and community are not dictated merely by personal interest; they arise out of moral compulsions that are deeply rooted in Indian social values. It will be a mistake to deny the moral basis of the obligations of family, kinship and community. But the moral basis of these obligations is differ-ent from the basis of constitutional morality. Problems arise when the loyal-ties of kinship and community are allowed to distort and override the demands of constitutional government. The salience of the dynastic principle and its pernicious hold over Indian politics
PERSPECTIVEEconomic & Political Weekly EPW october 4, 200839has been noted by many [Malhotra 2003]. The subject has led to endless moralising but not much systematic analysis. Here the Congress Party and the pre-eminent position in it of the Nehru-Gandhi family has received the most attention nationally and internationally [Guha 2007: 575-602]. From the record, it will be difficult to deny Nehru’s own commitment to constitu-tional norms and proprieties. But the storychanges after him. The Emergency appears as a turning point because it brought out Indira Gandhi’s failure to trust anyone outside her own family. When one son died, she brought in the other, and thereafter her family came to occupy an unassailable position within the CongressParty. Critics of the dynastic principle have found it natural to blame the Nehru-Gandhi family for refusing to yield its pre-eminent position in Indian politics. But this would be to take a short-sighted and one-sided view of the matter. It is a truism that in a democracy the followers get the leaders they deserve. How has it come about that India’s premier political party, the party of the nationalist movement, from the highest office-bearers to the lowest rank-and-file member, has become so abjectly dependent for its survival and success on one single family? We will fail to understand the nature of the problem if we refuse to recognise the fact that millions of Indians continue to believe that the natural succession to high office lies within the family. It is neither individual nor institutional charisma, but the charisma of the family that prevails. The Nehru-Gandhi family may be the most striking example of the dynastic principle but it is by no means the only example of it in Indian politics. Inder Malhotra, who has been a keen observer of the Indian political scene since Nehru’s time, has given many examples of what he calls “mini” and “midi” dynasties in the states. He too has related the operation of the principle to the strength of family ties and family obligations among the people of the subcontinent [Malhotra, op cit: 25-26]. No political institution, whether a legislature or a party, can be sustained without trust in its leadership. It seems that millions of Indians are more willing to repose their trust on a member of the leader’s family than on a person of proven experience and ability but unrelated to him. This raises the larger question of how much trust they have in the institutions of democracy as compared with their trust in family, kinship and community.The EmergencyI would now like to return to the point made earlier that anarchy and the abuse of power are but two sides of the same coin. Each is in its own way antithetical to constitutional morality. Without in any way extenuating Indira Gandhi’s toleration, not to say endorsement, of the abuse of power from the PMH dur-ing the Emergency, it is necessary to turn now to the other side of the coin. The Emergency did not come out of the blue in the summer of 1975. It came under condi-tions of unprecedented disorder and turmoil in the country. Perhaps Indira Gandhi called for the Emergency because she lost her nerve, or perhaps there was an inherently authoritarian strain in her personality waiting for an occasion to find expression. Whatever may have been the flaws in Indira Gandhi’s personality, we cannot afford to ignore the social and political conditions that were the immediate antecedents of the Emergency. As P N Dhar(2000:373) looking back on theeventswrote, “Indeed the Emergency as well astheJP movement further weakened the institutions essen-tial for genuine democracy. Both these events reduced respect for the rule of law: the Emergency by an authoritariandisre-gard for legal norms and the JP movement by rationalising and glamourising the defiance of all authority.”Opposition to Indira Gandhi’s govern-ment was building up in many parts of the country from 1972 onwards although thegovernment enjoyed a comfortable majority in parliament. The movement against it was already gathering strength when Jayaprakash Narayan, known throughout the country as JP, took over its leadership. JP was a leader of outstanding political and moral stature, who was known for his integrityandselflessness and who had enjoyed the esteem of an earlier generation of nationalists, includ-ingJawaharlal Nehru. His re-entry into the political arena galvanised the opposi-tion against Indira Gandhi. JP had had an interesting political for-mation and career. He had been influenced successively by Marxism and Gandhism, and these two influences combined in him to create a revolutionary movement of a very distinctive kind. When he took over the movement against Indira Gandhi, he was hoping to carry the masses forward not simply to a change in the government within the existing regime but to a change of the regime itself. As the rallies, dharnas and bandhs were gathering momentum,JP gave the call for ‘sampurna kranti’. That became the rally-ing cry for the movement against Indira Gandhi’s government. Sampurna kranti or total revolution (literally total struggle) was JP’s term for a comprehensive social revolution that would purge Indian society of all its accumulated ills, and recreate it on a higher moral plane. Where total revo-lution is the issue, one cannot remain con-fined to constitutional methods and shrink from the use of extra-constitutional ones. Ambedkar might argue the case for con-stitutional morality, but there are others who feel that a revolutionary morality stands superior to it. Though influenced by Marxism in his early years,JP had moved beyond the class struggle. In his effort to achieve total revo-lution, he sought to mobilise youth power or ‘yuva shakti’ as the driving force. Youth power had been used earlier in western countries such as France and the US in moderate doses, and with devastating effect in China during the Great Proletarian Cul-tural Revolution of 1966 onwards. It did not destroy constitutional practices and con-ventions in India, but it certainly fostered an attitude of disdain towards them. Impressed by the success of the students working through the Nav Nirman Samiti in Gujarat,JP decided to carry the movement into his home state of Bihar. The students there were agitating on various issues such as shortages, inflation, unemployment, fees and scholarships when they soughtJP’s intervention to bring the state government to its knees and get the state legislature dissolved. Conditions had become unsettled and there was tension in the air. It was hoped that the legislators could be persuaded to resign in large numbers. When persuasion failed,JP gave a call for the gherao of the
PERSPECTIVEoctober 4, 2008 EPW Economic & Political Weekly40assembly and the residences of the MLAs. He himself led a procession to the secre-tariat where he staged a dharna. TheJP movement of 1974-75 dismayed some, but it elated others. It brought in a new sense of expectation. The expecta-tion, shared by many at the time, and particularly the youth, was that democracy in India was about to acquire a new lease of life and, even, that a new kind of democracy was about to be born. But this new democracy would not be a constitu-tional but a populist one. I would go so far as to say that the spirit of populism, never too far from the surface, came out into the open and invested the political system with new energy. The capacity to mobilise large masses of people for rallies and demonstrations encouraged political leaders to disregard the rule of law. The opposition parties were not alone in organising rallies. IfJP could attract huge crowds in Patna, Indira Gandhi could do the same in Delhi. On her side, the organisation of rallies was put in the care of her younger son who had taken over the leadership of the Youth Congress. Sanjay Gandhi took little care to conceal his disdain for constitutional pro-prieties, relying on muscle power instead. Competitive populism reached its high-water mark in the summer of 1975. No political party, whether of the left, the right or the centre, can disown responsi-bility for its rise. All political parties, including the smallest, know that in India it does not take much to organise a rally of a 1,00,000 persons. Rallies have a social as well as a political side, and sometimes they have the atmosphere of a carnival. Nor are rallies organised only by political parties. They may be organised by religious bodies, by farmers and by caste formations of various kinds. The recent organisation of rallies by the gujjar community in Rajasthan is a case in point. Its leaders had no doubt that they were only using the most effective means avail-able to exercise their democratic rights. Democracy rests on a delicate balance between the rule of law and the rule of numbers. Populism invokes the principle of numbers, and constitutionalism the principle of legality. No constitutional order can continue for long if it has no sup-port among the people, and a populist movement in course of time develops its own rules and conventions. At the same time, the way in which the balance is attained between the attachment to num-bers and the attachment to legality differs from one democratic system to another and, within the same system, from one phase in its life to the next. In India there has been a clear shift since 1977 in favour of numerical support. This can be seen from the decisions taken in Parliament, where the calculation of numbers acquires priority over legislative consistency. Looking back on the events that came immediately before the Emergency, one cannot help remembering the wise words of Ambedkar’s closing speech in the Constituent Assembly. The attainment of independence did not lead to the rejection of the “Grammar of Anarchy” but, in course of time, to its more extensive use. Neither the ruling party nor the parties in opposition paid much heed to the re-straintsrequired by constitutional moral-ity or the principle of legality. The Con-gress felt that it had the numbers in Parlia-ment, and the parties behind the JP move-ment felt that they could paralyse the gov-ernment by bringing their supporters on to the streets. The ruling party in its turn brought out the thugs of the Youth Con-gress. When that did not work, the govern-ment declared a state of emergency. No one can deny that in declaring the Emergency Indira Gandhi strayed from the path of constitutional rectitude. It will be generally agreed that among all the prime ministers of independent India, Indira Gandhi was the most repressive and themost ruthless. But she was not animated by the kind of destructive ideological passion that caused so much violence in the Soviet Union under Lenin and Stalin and in China under Mao. The nationalist tradition in Indian politics was very different from the Bolshe-vik and the communist traditions, and it is doubtful that she could ever fully put behind her the examples of Gandhi and Nehru. So in the end she did call off the Emergency and try to meet her constitutional obligations by a return to electoral politics. State and the CitizenAmbedkar was well aware that the successful operation of democracy would require not only the creation of a new political order but also the creation of a corresponding social order. Would the prevalent social order in India be able to rise to the challenges presented by the new Constitution? He had misgivings about this, and developments in govern-ment and politics since his time have shown that his misgivings were not without foundation. The operation of a modern democracy rests upon three interlinked components. These are (a) state, (b) citizenship, and (c) mediating institutions [Béteille 2000a: 172-97]. Each is important in its own way, but it is only in their mutual relations that they provide the basis for a democratic social and political order. Human history has witnessed many different kinds of state: the tribal state, the feudal state, the absolutist state, the imperial state, and so on. Our concern here is with the constitu-tional state governed by the impersonal rule of law, what the Germans call the Reschtsstaat. A constitutional state, by its very nature, sets clearly defined limits to its own authority. What is not always recognised is that the constitutional state can operate only through an apparatus which is a system of graded authority. Populism of the kind represented by the call for sampurna kranti is on the other hand emanci-pationist and antinomian in its outlook. It regards all systems of graded authority as bastions against the immediate and press-ing needs of the people. The gradation of authority and the abuse of power are, of course, two different things, but in a pop-ulist perspective they are easily confused, and the functionaries of the state be-come the natural targets of the hostility against privilege. Citizenship represents the pole opposite to the state in a constitutional democracy. The concept of citizenship is a modern one. During the colonial period, Indians were subjects and not citizens, and tradi-tional Indian society was a society of castes and communities rather than of citizens. The modern concept of citizen-ship is an individualising as well as a universalising one. The rights of citizen-ship are the rights of individuals, without consideration of race, caste, creed or gender, and they are the same for all Indian citizens.
PERSPECTIVEEconomic & Political Weekly EPW october 4, 200841Contrary to the hopes and aspirations of many in the Constituent Assembly, Indian society has not ceased to be a society of castes and communities. Democratic politics has in many ways strengthened collective identities at the expense of the identity of the individual as citizen. Here, what Ambedkar had said about majorities and minorities applies in a general way to all forms of collective identity. He had said, “It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves” [Constituent Assembly Debates 1989: VII, 39]. The vicious cycle of discrimination and self-perpetuation continues unabated. The two poles of the state and the citizen are linked together by organisa-tions, associations, institutions and inter-personal networks of many different kinds. It is these mediating structures that hold society together and give to each society its distinctive character. Among the diverse arrangements, I would like to single out those that I describe as institu-tions. An institution is a social arrange-ment with a distinct identity, a distinct internal structure and culture, and a life span extending beyond the lives of its individual members. Mediating institu-tions themselves are of many different kinds, of which only some, and not all, are of central significance to the functioning of a constitutional democracy. The mediating institutions that I have in mind are open and secular institutions, homologous in their character to the constitutional state and citizenship. They are very different from the institutions of kinship, caste and religion that formed the basis of state and society in traditional India. They are open in the sense that membership in them is independent of considerations of race, caste and gender, and they are secular in the sense that their internal arrangements are not regulated by religious rules or religious authorities. The antinomian currents by which pop-ulist democracy is propelled find them-selves at odds not only with the institu-tions of the state but, more generally, with public institutions and their structures of authority. Obvious examples of public institutions that have had to withstand the currents of populist movements in India are its universities and colleges. Their organisation and functioning have been affected for long stretches at a time in many parts of the country, and in some cases they have been seriously, and per-haps irreversibly, impaired. University and college students are ideally positioned for mobilisation in support of populist causes. They are impressionable and idealistic, and they can be absent from their allotted work for long periods without risk of having to suffer any immediate consequences. If the movement is sufficiently large in its scope, it is likely to be joined by their teachers who provide it with additional momen-tum. Ordinarily, the forces of law and order treat such movements more indul-gently than movements by workers or peasants. But if there is violence from one side, it may be matched by violence from the other. Civil DisobedienceConstitutional morality would stand impoverished if it failed to accommodate the principle of civil disobedience. Under the leadership of Mahatma Gandhi, civil disobedience became the cornerstone of the nationalist movement, and it would be unreasonable to expect it to fade away from the Indian imagination. Whenever large popular movements are organised against the government, the idea of civil disobedience tends to be invoked. This happened at the time of theJP movement, and it was not the last time that it happened. The historical association with Gandhi gives a special appeal to any movement that presents itself as an act of civil disobedience. Ambedkar had no doubt been right to point out that the context of popular protest had changed with the passage from colonial rule to self-rule. When they were ruled by an alien power, the people of India had limited means by which to influence their rulers. With independence, the rulers and the ruled became in some sense one and the same people. The impediments to being heard by the rulers and even calling them to account were no longer as unassailable as in the past. Where ordinary measures for the articulation of discontent had become accessible, extra-ordinary ones would no longer be required. 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 constitu-tional 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 govern-ments to those demands. In a parliamen-tary democracy, the obligations of consti-tutional morality are expected to be equally binding on the government and the opposition. In India, the same political party treats these obligations very differ-ently 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 princi-pal parties, whether in office or in opposi-tion, 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 disobedi-ence 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 resist-ance. In particular, it required among its practitioners a habit of obedience to the laws, including inconvenient ones [Gandhi 1961]. Civil disobedience, in this view,
PERSPECTIVEoctober 4, 2008 EPW Economic & Political Weekly42cannot 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 diffi-cult 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 persua-sive 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, demonstra-tions and rallies undertaken in the name of civil disobedience have increasingly become coercive not only in their conse-quences 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 consti-tutional morality if the state persistently disregards those norms.The JP movement of 1974-75 was the culmination of a period of uncertainty and disorder. The social and political condi-tions for its emergence had been growing in various parts of the country for some time. Nevertheless, it can be seen as a watershed in India’s social and political life. When the Emergency was withdrawn, the political system did not return to the status quo ante. The new government that assumed office after Indira Gandhi’s defeat adopted an ambitious social agenda. That agenda was dictated by the promises its leaders had made in the period that led to the Emergency and during the elections that brought them to power after it. It was tooambitiousforit or for any government with its resources to fulfil. The new government ran into difficulty almost immediately after it assumed of-fice. It was a coalition of too many parties whose diverse constituents exerted contradictory pressures on it. A clash of personalities soon appeared on the sur-face, and the politics of principles was overtaken by the politics of patronage. Looking back on that period, someone who had worked closely with Indira Gandhi observed: “Indeed the Emergency as well as theJP movement further weakened the institutions essential for genuine democracy. Both these events reduced respect for the rule of law: the Emergency by an authoritarian disregard for legal norms and the JP movement by rationalising and glamourising the defi-ance of all authority” [Dhar 2000: 373]. As I have pointed out, the JP movement, like populist movements in general, was emancipationist and antinomian. These two closely related aims and tendencies did not die down with the end of the movement. They have become lodged in our political culture as an integral element of it. They cannot be wished out of exist-ence, no matter how much they might conflict with the principles of legality on which the Constitution is based.Populism has not only become a part of our democracy, but from time to time it puts forward its demands in a very imperi-ous 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, andJP’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 violat-ing 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. ReferencesBéteille, André (1981): The Backward Classes and the New Social Order, Oxford University Press, Delhi. – (1987): The Idea of Natural Inequality and Other Essays, Oxford University Press, Delhi, 2nd ed. – (1999): ‘Citizenship, State and Civil Society’ in Economic & Political Weekly,Vol XXXIV, No 36, pp 2566-91. – (2000a): Antinomies of Society, Oxford University Press, Delhi.– (2000b): ‘Anarchy and the Abuse of Power’, Economic & Political Weekly,Vol XXXV, No 10, pp 779-83. – (2003): Equality and Universality, Oxford Univer-sity Press, Delhi. Bullock, Alan (1993):Hitler and Stalin, Vintage Books, New York.Constituent Assembly Debates (1989): Official Report, Lok Sabha Secretariat, New Delhi. Dhar, P N (2000):Indira Gandhi, the ‘Emergency’ and Indian Democracy, Oxford University Press, New Delhi. Gandhi, M K (1961): Non-Violent Resistance, Shocken Books, New York.Guha, Ramachandra (2007): India after Gandhi, Macmillan, London. Haksar, Vinit (1986): Civil Disobedience, Threats and Offers, Oxford University Press, Delhi.Malhotra, Inder (2003): Dynasties of India and Beyond, HarperCollins, New Delhi. Palkhivala, Nani A (1974):Our Constitution Defaced and Defiled, Macmillan, New Delhi. Shils, Edward (1997):The Virtue of Civility, Liberty Fund, Indianapolis.

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