When constitutionalism fails

Discussion in 'Politics & Society' started by ajtr, Mar 18, 2011.

  1. ajtr

    ajtr Veteran Member Veteran Member

    Joined:
    Oct 2, 2009
    Messages:
    12,038
    Likes Received:
    715
    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.
     
  2.  
  3. ajtr

    ajtr Veteran Member Veteran Member

    Joined:
    Oct 2, 2009
    Messages:
    12,038
    Likes Received:
    715
    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.
     
  4. GPM

    GPM Tihar Jail Banned

    Joined:
    Mar 5, 2011
    Messages:
    1,510
    Likes Received:
    506
    Constitution is a document providing for freedoms and general governance. So it must serve the nation, not the other way around. If in future this Constitution is found to be undermining national integrity and sovereignty, then it would have to be replaced.
     
    Last edited: Mar 21, 2011
  5. Ray

    Ray The Chairman Defence Professionals Moderator

    Joined:
    Apr 17, 2009
    Messages:
    43,118
    Likes Received:
    23,545
    Location:
    Somewhere
    Abuse of the Constitution has remedy of the ballot box.
     
  6. GPM

    GPM Tihar Jail Banned

    Joined:
    Mar 5, 2011
    Messages:
    1,510
    Likes Received:
    506
    How do you use ballot box in case of secessionism?

    Punjab terrorism did not go away by constitutional means. But it go away INSPITE of the constitution.
     

Share This Page