The importance of constitutional morality
From telecom to mining, India’s cupboard of caprice and corruption is overflowing with enormous figures being thrown around in an almost off-hand manner. It is truly a season of scams.
In this environment of intrigue and strife, the middle class scepticism of the political class is understandable. The never-ending list of scams has only exacerbated the ingrained lack of trust. For some, this scepticism extends to Indian polity and its bedrock: Indian democracy and its constitutional underpinnings. Our faith in constitutional morality is being questioned.
In his essay titled “What is constitutional morality?” Pratap Bhanu Mehta, president of the Centre for Policy Research, quotes classicist George Grote defining constitutional morality as “a paramount reverence for the forms of the constitution, enforcing obedience to authority and acting under and within these forms, yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined, too, with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of constitution will not be less sacred in the eyes of his opponents than his own.’’ Mr Mehta goes on to condense some of its attributes—self-restraint, a striking respect for diversity of opinion and open criticism, deference to due process, and a disinclination to claim the mantle of sovereignty.
In the pages of this issue of Pragati, Rajiv Mantri makes an eloquent case against over-reliance on constitutional means. Citing examples from India’s post-independence history, Mr Mantri asks an important, and admittedly troubling, question: Of what use is constitutional morality if the government of the day itself functions as an autocracy, usurping the rights of the citizens while still maintaining the useful veneer of democracy? And perhaps, constitutional morality would run foul of the likes of Reliance founder Dhirubhai Ambani and his undoubted contribution to India’s industrialisation. Of what use is constitutional morality then?
The short answer would be that constitutional morality rejects the transactional view of the constitution; it emphasises processes instead of the eventual outcomes reached. This is the key to managing the inevitable conflicts between different agents, each with their own personal agenda and absolute faith in their appropriation of popular sovereignty. Or as Mr Mehta puts it, ‘’Constitutional morality requires submitting these to the adjudicative contrivances that are central to any constitution—parliament, courts and so on.’’
But apart from abstract principle, constitutional morality must pass muster in more prosaic tasks—the economic and social development of India and its citizens. For instance, let’s look at Indira Gandhi’s imposition of Emergency—one of the darkest chapters in India’s modern history. It is true that Mrs Gandhi functioned as a quasi-dictator riding roughshod over parliament, judiciary and the free press. It is equally true that without the mass agitation—often violent—orchestrated by the Jai Prakash Narayan (JP)-led opposition movement, the stunning 1977 elections in which Mrs Gandhi’s government was defeated would perhaps have been impossible. Yet, what became of the JP revolution? The Janata government, marred by internecine warfare, barely lasted three years before Mrs Gandhi rode back to power with a massive election victory. The constant in-fighting, intrigue and lack of faith in constitutional forms, which was the hallmark of the Janata government, was perhaps not unsurprising considering its origins. Worse, it led to a decade of Congress dominance—-India is still paying the price for the turbulent 1980s. In effect, in a matter of three years, India regressed to a position perhaps worse than before JP’s revolution.
Or look at the Bharatiya Janta Party (BJP). Indubitably, the emergence of BJP as a major national force has made the Indian polity bipolar. Mr Mantri justifies its aggressive, sectarian and grossly unconstitutional politics of the 1980s and early 1990s because it “used extremism in defense of liberty.’’ Even if one accepts this sophism at its face value, what of BJP now? It has suffered two withering electoral defeats, and despite having been in power for six years, is still struggling to evolve into a natural party of governance. The core of the party unfortunately retains its fascination for agitational politics—witness the refusal to let parliament function while calling for large-scale illegals bandhs, which achieves little except inconveniencing the aam aadmi. BJP’s failure of imagination as a political party owes much to its origin as an agitational party—a purveyor of grievances real and imagined.
And what one does make of Dhirubhai Ambani? Many rightly credit the late Mr Ambani for the significant role he played in India’s economic transformation and for fostering an investment climate in the country. Mr Mantri defends his more unsavoury dealings as simply a function of the times: In an era where government maintained a vice-like grip on the economy, what alternative did an ambitious entrepreneur have if he wished to realise his large ambitions? Going by this argument, should we not apportion, at least partially, the blame of India’s easy embrace of corny capitalism and cronysim, and the jugaad attitude to Mr Ambani too? Many prominent industrialists—remember the notorious Bombay club—were never prominent votaries of economic liberalisation, preferring to game the system rather than advocate large-scale reforms which could empower their competitors.
A common thread runs through all these examples: Lack of faith in constitutional morality yielded short-term benefits but in the longer-term, the gains were not sustainable and in many cases ended up strengthening the status quo. Insurrections never turned into full-fledged revolutions. This is entirely unsurprising. Revolutions do have a habit of consuming their own. Movements that reject constitutional morality are not sustainable beyond the short-term. They may spur individual achievements but actively end up undermining institutional authority with deleterious long-term effects.
In the 1990s, faced with unrelenting violence and daily kidnappings, the Maharashtra government permitted the police to stage “encounters” and eliminate wanted gangsters. The crime rates plummeted for a while but almost inevitably “encounters cops” were found to have been co-opted by the very system they had been challenging. A lack of faith in constitutional morality ultimately created more monsters then it ever slayed.
Rohit Pradhan is a fellow at the Takshashila Institution and blogs at Retributions