When constitutionalism fails

“I would remind you that extremism in the defense of liberty is no vice.”

These words were spoken by Barry Goldwater when he was chosen as the Republican Party’s candidate for the 1964 United States presidential election. His view advocating “extremism in the defense of liberty” can be dismissed as too radical a dictum to be taken seriously in the realm of politics in constitutional, democratic republics. Indeed, self-described constitutionalists and concerned citizens alike decry extremism and agitational politics of any sort. Advocating this is a sure way to be branded a political untouchable by a section of the intelligentsia.

However, history tells us that there are times when constitutionalism and rule of law can fail in democratic republics too. Indeed, it is immoral not to use extremism to defend liberty when push comes to shove.

Economist and philosopher Milton Friedman wrote in his classic Capitalism and Freedom that economic freedom is a necessary but not sufficient condition for political freedom, which is defined as the absence of coercion of an individual by other individuals. In economic systems where the government is the only entity that can raise financial capital via taxes, and capital formation is concentrated in the hands of those wielding political power, it is easy for political freedom to be hijacked even in democratic republics.

India witnessed such a suppression of economic freedom in the decades following independence, and this made a mockery of our republic’s constitutionally-guaranteed political freedom. Bank nationalisation in 1969 cemented political control over the entire financial system. Opposition parties routinely had to compete with an incumbent government that not only had a sprawling, well-oiled and well-funded electioneering machinery in every nook and cranny of our vast geography to complement its stranglehold on capital formation, but also routinely used public institutions unconstitutionally and illegally, with impunity, to beat back political opposition. The use of All-India Radio, which had monopoly over the air waves, for political campaigning is but a small example.

But Indian politics remained “constitutional” through nearly three decades after independence until 1975, when an arrogant government led by the Congress party suspended democracy and imposed a state of Emergency, perturbed at the indictment of the prime minister by a court for election fraud and misuse of state institutions for electioneering. Ironically, constitutionalism by citizens and political opponents precipitated a high-handed, arguably unconstitutional action by the government.

Those whose solemn duty it was to protect the Constitution themselves became its principal abusers. When the great singer Kishore Kumar refused to perform at a public function at the behest of the government, his music was promptly outlawed—such was the attitude and temerity of those wielding political power.

Once the Emergency was lifted in 1977, Indian voters conclusively threw out the incumbent and installed a coalition government for the first time since independence. It was at this time that the idea that a non-Congress Union government can be formed took root. Economic liberalisation in 1991 marked the launch of competitive electoral politics, with the rise of several regional parties and a second national political force.

Today, after two bursts of economic reforms, there has been sufficient capital formation to ensure that situations that arose in earlier decades won’t arise again. Notably, the Atal Behari Vajpayee-led Bharatiya Janata Party coalition, as the first non-Congress government to complete a full term in office, can also credibly claim to be have been the most economically liberal. Though it rode into office on the back of a mass, mob-like agitation that could easily be characterised as unconstitutional and unlawful, the Bharatiya Janata Party used extremism in defense of liberty.

Their means may have been morally tenuous but served a far greater good. Taking a more cynical view, the non-Congress parties might have realised the necessity of kindling economic freedom to encourage capital formation for their own long-term sustenance, not just for the advancement of India’s citizens.

What happened in politics also happened in the business world. Starting in 1977, a petrol pump attendant named Dhirajlal Hirachand Ambani turned to India’s embryonic capital markets to fund the expansion of his business. Given that banks had been nationalised in 1969, he may have found it impossible to raise money from that avenue. Dhirubhai, as he came to be known, used ingenious accounting jugglery and financial engineering to raise cheap capital from the equity market and minimise taxes, sometimes very questionably.

As Arun Shourie, a minister in Mr Vajpayee’s cabinet, said, long after these (mis)deeds were done, by fearlessly bending and breaking the laws of the day, Dhirubhai showed how ridiculous they were in the first place and strengthened the case for economic reforms. Just as they had been abused in the political sphere, in this case the laws and institutions themselves were wrong and needed wholesale change.

There are examples even today. West Bengal has been governed by the same political party for over three decades—it is so entrenched that there is little distinction between the party and state machinery. The political opposition to such an incumbent has been bitterly and violently agitational, unlawful and unconstitutional, but history tells us there is no other way to challenge the sitting government in an environment with very limited economic freedom. Moreover, when the government itself flouts the rule of law, the Opposition can’t be expected to abide by it.

What remains to be seen is whether the current Opposition in West Bengal has recognised the importance of encouraging capital formation by standing for economic freedom, and whether it follows that philosophy to strengthen its long-term political prospects.

If laws and public institutions don’t keep pace with new ideas and are abused by those entrusted with upholding them, they risk being challenged by unconstitutional means. This should not be looked down upon even in a democratic republic.

Goldwater was quoting the great Roman statesman Cicero when he justified the use of extremism to defend liberty. Sometimes keeping the Republic means employing unconstitutional means, and extraordinary attacks on liberty can require extraordinary actions to defend it.

Rather than rejecting and turning up our noses at prior or current mass agitational politics which may also be unconstitutional and unlawful, we will be better off qualifying and tempering our view, keeping in mind the context of very limited economic freedom in India even today. Without economic freedom, political freedom enjoyed by the average Indian citizen is highly restricted. Therein lies the root cause of almost all unconstitutional agitation for political gain. In fact, when non-constitutional methods are used to enhance liberty and promote economic freedom, it strengthens the Republic.

One Reply to “When constitutionalism fails”

  1. quietist

    It’s an incisive look into the evolution of Indian democracy. As correctly pointed out, INC has benefited from capital and institutional advantage since independence which it has used dexterously to contain the opposition to largely a symbolic entity until NDA became the first alternative alliance to complete the given mandate. Of course the transformation which IMO started from states, was effected as the democracy evolved. It’s true that agitations have been part of that process be it in states or at center and in retrospect it can be argued that it may not have been possible any other way.

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