Democracy
IN 2020, THE STREETS INTUITIVELY OWNED THE CONSTITUTION. IT IS NOW ALSO TIME FOR THE RULERS TO BE LIMITED BY IT
In January 1950, newly independent India emerged as a republic with a new Constitution that had been forged against a backdrop of great anarchy in the preceding decade. The India of the 1940s had witnessed the Second World War, the Jewish Holocaust, the atomic bomb, Partition riots and the murder of the Mahatma. The founders of our republic consciously chose a path that steered the country away from the causes of violence of the past decade, and set it on a route to a peaceful rise as a functional democracy that protected every citizen.
The evening before the signing of the Indian Constitution, Dr B.R. Ambedkar gave three warnings to India. He warned India to avoid agitations and only resort to constitutional means to settle political questions. Secondly, he enjoined India to never lay its liberties at the feet of a great man. Thirdly, he warned India that mere political democracy was useless without a social and economic democracy. His speech on November 25, 1949, to the Constituent Assembly also had a fourth warning.
Dr Ambedkar warned that “it is quite possible in a country like India—where democracy from its long disuse must be regarded as something quite new—there is danger of democracy giving place to dictatorship. It is quite possible for this new-born democracy to retain its form but give place to dictatorship, in fact. If there is a landslide, the danger of the second possibility becoming actuality is much greater”.
In the past 70 years of the Indian Constitution, the country has often proceeded in defiance, of one or the other, of the three warnings. Rarely did all three contingencies simultaneously occur but, today, we seem to be living through a triple storm. Agitation has taken over the streets; a one-man government has an overwhelming majority and the extremely rich are disconnected from the great mass of their fellow countrymen. Our society is racing backwards to divide itself on ancient religious antagonisms. As the calendar switches to a new
AMBEDKAR GAVE THREE WARNINGS TO INDIA... NOW, AFTER 70 YEARS, WE SEEM TO BE FACING ALL OF THEM, A TRIPLE STORM
decade of the 21st century, it is possible that Ambedkar’s fourth warning has also been ignored. We began 2020 with an agitation blockading the roads at Shaheen Bagh and have ended it with farmers being blockaded, at Delhi’s Singhu border. The Chinese intrusion into the nation’s borders and the Covid-19 virus stalking the land have added to our sense of things falling apart. The centre can hardly hold, as mere anarchy seems loosed upon the nation. But in the midst of all this chaos, Ambedkar’s Constitution of India has gone viral too.
When the year dawned with nationwide protests against the Citizenship Amendment Bill, it was the Constitution’s preamble that was being recited and invoked at protests all over India, including its epicentre at Shaheen Bagh in Delhi. Along with the national flag and the national anthem, the preamble became both prayer and promise of a citizenry renewing its vows of engagement with civic life. The Constitution was read to reflect a social contract between citizen and citizen, drawn into a state of fraternity. It was also seen as a regulator of the relationship between a free citizen and an elected but accountable government. The national parchment was not confined anymore to courts and legislatures, it now seemingly lived amongst protesters as both promise and talisman against disenfranchisement.
The onset of Covid in March 2020 saw some protests recede, but as the year wound down, the second wave of farmers’ protests was sparked off by similar mishandling of legislative powers. Ram Manohar Lohia had famously warned that when the streets fell silent, parliaments went rogue. It now seems as though the silence within Parliament has shifted public discourse to the streets. This is because meaningful discussion rarely happens in Parliament. A parliament that assembles to merely assent to the legislation of executive diktat is no deliberative body. It resembles W.S. Gilbert’s description of the British Parliament’s functioning in
the 19th century:
“When in that House MPs divide, If they’ve a brain and cerebellum, too, They’ve got to leave that brain outside, And vote just as their leaders tell ’em to”
In India, thanks to the anti-defection laws, parliamentarians are obliged to vote as they are told to. An overwhelming majority in India’s Parliament has enabled the current government to pass whatever legislation that it is of a mind to, without any concern for its impact upon those sought to be governed. Thus farm acts have come in without consulting farmers, religionbased citizenship acts were brought in regardless of concerns that they would negate basic constitutional provisions of non-discrimination. Overnight, legislations have criminalised triple talaq, created reservations for economically weaker sections of the upper castes and hollowed out Article 370 of the Constitution. Instant decisions taken without any prior parliamentary consultation are transformed by legislative process into laws of great consequence. A byproduct of quick-fix legislation at the Centre is that state legislatures, too, feel emboldened to transform ruling majorities into majoritarian law-making on the fly. State laws against cow slaughter, conversions and marriages have been rushed through the ordinance route and added to the arsenal of aggravation against a section of citizenry. Parliament and legislatures were not constitutionally designed to be dutiful rubber stamps to the government of the day. They were designed to represent the concerns of individual constituents in the delicate process of law-making. They were meant to debate, discuss, dissent, work in committee and finally vote on legislative business. What we now have is a quick process of collective acquiescence in saying “thy will be done” to the leader. Mere adherence to formalities of the legislative process is no guarantee of wise law-making.
In normal times, a truly democratic constitutional republic would pause to consult civil society and seek the consent of the governed before it exercises the power of law-making. Legislating without prior consent sometimes subjects the solemn solidity of parliamentary law-making to an imperfect veto from the protesting hordes. The worst of hurried law-making and rule by decree is today being undone by organised public resentment, publicly demonstrated. Where protests are sustained and get traction, the law is not activated, pending further negotiation. For example, the rules under the Citizenship (Amendment) Act have not yet been notified, effectively putting the act into hibernation. The farm acts are being sold to protesting farmers as probationary. Even the abrogation of Article 370 and the transformation of the state of Jammu and Kashmir into separate Union territories has an air of impermanence about it.
The grammar of anarchy is resorted to even as unwise laws end up being challenged in court. However, judicial review is hardly a substitute for thoughtful law-making. A constitutional court can only look for the existence of legislative power and the manner of its exercise in conformity with constitutional limitations. The courts can’t get into the merits of legislation, nor can they sit as appellate forums over legislative wisdom. Laws are made with a variety of aims, and not all of them are benign. Those who benefit from a legislation may be only a few and those repulsed by it may be many. However, the courts cannot attribute motives or bad faith to a legislature. While they can strike down improperly made laws, the courts can neither revise nor substitute them. But, in recent times, even this limited authority has scarcely been invoked by the courts to temper legislative excesses.
Protests, therefore, have been the sole safety valve of immediate democratic response. A Boston tea party or a salt satyagraha has in the past undone the diktats of the mightiest of empires.
So, what lies ahead for India in 2021? Are we too much of a democracy, or do we have it only in form? If the many mini-emergencies of 2020 have taught India anything, it must be that there are no quickfix solutions. Nor are there single supermen capable of delivering them single-handed. “Bhakti in religion may be a road to the salvation of the soul. But in politics, bhakti or hero worship is a sure road to degradation and to eventual dictatorship,” Ambedkar had warned. The cult of personality must therefore yield to institutional integrity, lest the whole apparatus is wrecked in street protests, or ends up in a dictatorship. It is not enough to continuously win elections, one must also administer in accordance with constitutional limitations. In 2021, crucial state elections in Assam, Kerala, Tamil Nadu and West Bengal are due and further polarisation may yield further electoral dividends. But that temptation must be set aside as the country needs a rest and a reset from one of the toughest years in postIndependence India.
Areset demands fresh dialogue. “For last year’s words belong to last year’s language/ And next year’s words await another voice/ And to make an end is to make a beginning,” wrote T.S. Eliot. The government and its critics need to stop shouting at each other and make beginnings afresh. Parliament must revert to being a deliberative body for law-making based on near-consensus. Legislative power must not be a means of private profit for one set of citizens in preference over another. Law-making cannot be a matter of shoot first and negotiate later. Challenges to legislation must be speedily processed by the constitutional courts which should not resort to undue judicial deference or delay. Street protests and blockades, too, need to have a reasonable endgame in mind, rather than take maximalist positions.
Rulers and citizens need to go back to talking to each other, rather than at each other. The prescription might look simplistic, but it has worked for nearly seven decades. India desperately needs to return to less angry times, and the easiest way is to listen to the good Doctor Ambedkar. The streets intuitively have owned the Constitution, it is time for the rulers to be limited by it. ■
PARLIAMENT AND LEGISLATURES WERE NOT CONSTITUTIONALLY DESIGNED TO BE DUTIFUL RUBBER STAMPS TO THE GOVERNMENT OF THE DAY