Death of Democratic Institutions:
The Inevitable Logic of Neo-Liberal Political Economy and Abandonment of Directive Principles of State Policy
[Part-1]

B. Sudershan Reddy

First KG Kannabiran Commemoration Lecture on Law, Justice and Human Rights

At the very outset, let me unreservedly place on record that I feel it to be a great honour to have been asked to deliver this lecture in memory of Shri. Kannabiran – a remarkable senior advocate who was an indefatigable warrior for justice, a scholarly expositor of law and the political economy, a human being endowed with an abundance of understanding for the human condition and above all an optimist with an indefeasible empathy for human potential. As members of the Bar would be all too aware, the humility one ought to feel is also an indication that achievements, in instantiating justice and democratic practices, are not dependent on whether one holds high constitutional office or not. The potential for success of conjoined projects of democracy and justice is functionally more dependent on the efforts that members of the Bar than what the constrained operational width of those serving on the bench allows. This is especially true when we deal with stalwarts of the Bar who have devoted their entire life to the protection of civil liberties like Shri. Kannabiran did. His life and service to the bar and the temple of justice are too well known to reiterate here. It would suffice to say that –especially when most reasonable people are beginning to air foundational questions about whether institutions of justice are even attempting to serve the cause of justice –it is only apt that we gather to engage in some soul searching in memory of a remarkable human being who fought, throughout his life, for the cause of the weakest against what he perceived were instances of misuse of the institutions of an ostensible constitutional democracy.

I must of course place on record my personal debt of gratitude to Shri. K.G. Kannabiran. By the time I began to practice law in full earnestness, in the mid 1970s, he was already a star to whom neophytes could turn to for advice and guidance. And I do not recall even a single instance when Shri K.G. Kannabiran did not extend the benefits, to junior advocates, of a very capacious and brilliant mind that he possessed. His role in founding the PUCL is well known, and I, as its member almost from the days of its founding immensely benefitted from the sense of security – intellectual and moral - that it provided younger and idealistic lawyers who believed that the foremost of the promises of a Constitutional Democracy are with regard to safeguarding civil liberties, especially of the weakest, while also promoting the State as a platform for collective action to quickly transform the Indian society, from its moorings in graded hierarchies of difference and discrimination. It was my honour to have assisted him in a number of cases, as indeed it was a humbling experience when I appeared against him. If the former occasions were didactic, the opportunities to go up against him were occasions of chastisement delivered with courtesy. In either case, he was a born teacher. I must also place on record the fact that, after I was elevated to the Bench, Shri K.G. Kannabiran appeared before me – and each of those occasions was a privilege and his appearances are cherished.

I would like to briefly talk about one case in which I worked closely with him. In the mid-1980s, the State of A.P., had enacted a legislation that gave the State very sharp and deep tentacles of control over institutions of higher education. My inclination was to frame the arguments against that particular law on the basis of lack of legislative competence – essentially framing the issue in black letter law terms. As a senior advocate, Shri. Kannabiran insisted that protection of the autonomy of institutions of higher education, was not merely a matter of the positive law, but also one of the essential scaffolds of normative foundations of what the Indian Constitution sought to inscribe in our lives. He modulated the arguments of legislative competence through the sieve of essential autonomy for institutions of higher education as an aspect of free exploration of knowledge and human dignity. As he explained it then, constitutionalism in its essence is about constant reaffirmation of human dignity, and continuous reconstitution of the social, between individuals, between groups and those in turn with the State. Universities as spaces in which knowledge itself is constituted and reconstituted, both as a matter of learning existing knowledge and affirmation of the ever present possibility of new knowledge, necessarily had to have a significant measure of autonomy, not merely as a matter of statutory concessions, but as an inherent feature of a constitutional order that cared about human dignity.

And such memories of Shri. K.G. Kannabiran must necessarily underscore the angst we must feel, about the continued imprisonment of an elder wheel chair bound academic, suffering grave illnesses, for the mere possession of certain texts and literature for deliberation in academic setting. And that angst assumes greater acuity as reports filter in of the shooting dead of a teacher who was allegedly sharing images of a “messenger of God” for discussion in a class room. The State and the society are always locked in a dialectic process, and whether the institutions of both the civil society as well as the State conscientiously try to promote the core values of the Constitution, and give expression to the moral urgency of the consequential changes needed to protect innate humanity of citizens and groups they belong to, has a crucial bearing on whether the Constitution continues to be worked or not. It just seems that we have fewer and fewer people willing to boldly work the Constitution.

If you detect a tone of wistfulness in my voice, it is of course for the man – for men such as K.G. Kannabiran were rare, even in his day and arguably much rarer today. But that tone is also for myself, beset by confusion about the particular denouement we find ourselves in – not just in India but across the World. Buffeted for the past 4-5 decades by a framework of amorality - in which greed was to be the sole good, the individual to be the sole end point of any decisional matrix, and the better off to be the first to be served justice, societies across the Globe are now marked by record levels of inequality (primarily in the economic sphere which in turn multiplies the impact of socio-cultural and political inequalities manifold times), increasing abandonment of the constitutional projects and emerging kernels of serious social unrest. For the good part of the last two decades I have been expressing my unease at the arc of events, globally and in India, in various public lectures. I believe that the unease is now increasingly shaping into alarm, given the events across the World in general, more particularly in India, especially over the past few years.

Much has been written about the failures of judiciary, as revealed more particularly by its obvious reluctance, of a recent iteration and vintage, to fully bear its burden of being a check on the inherent tendency of the executive to over-reach and go beyond the limits of the law, and also abandon many of the core elements of the constitutional project. If there was one tenet that seemed beyond the pale of doubt - as far as the Constitutional projects that emerged in the first flush of hope after World War II are concerned –it was that democracy necessarily has to be accompanied by a constitutional restraint, guarded and articulated by the judiciary, on the contexts in which the executive exercises force, the modes of exhibition of that force – including but not limited to adherence to the principle that the State should have an exclusive monopoly to eliminate the violence by social groups - and the extent of its use. For a brief, but horrifying, period in the mid-seventies we confronted the possibility of, and to a large extent instantiated in reality, the prospects that a democracy modulated by constitutional restraint was but a brief flash of hope that was to disappear, as it was to with many other post-colonial societies and nation states. As images emerged, again and again, in some news papers, and in a few other forms of the media, of mobs of private individuals and social groups (openly identifying themselves with a particular form of a particular religious expression and the political formations that underwrite those expressions) attacking and targeting specific localities and particular segments of the populace, the reluctance of constitutional courts to exert or even seriously attempt articulation of any tenets of constitutional morality as guides for the law makers, the law keepers and the subjects of law, was marked. As visuals emerged that the law breakers were ostensibly acting with impunity under the active protection of the police, it seemed that the reluctance might actually be a case of abdication; and many reasonable people might even believe that they have valid grounds for opining that it was deliberate. Many of the fears of the mid-seventies return to write increasingly deeper lines of worry.

One of the essentials of determining whether the law is prima facie valid, are questions about which forum enacted the law, and whether it was done in a manner that warrants legitimacy. This is, of course, in addition to the constitutional norm that law cannot violate Part III of the Constitution. For long, many scholars have been talking about how imperial executives have used legislatures as mere rubber stamps. However, over the past two decades, what has become even more likely – and sadly also in jurisdictions that claim pride in being properly functioning constitutional democracies – is that enactment of law and framing of policy takes place without much debate, the absence being much more marked in the ruling cliques. The absence of debate underscores the overarching themes of neo-liberalism that much of the economy or almost all of it, and maybe even life – including social life – are beyond the pale of law. This necessarily has a chilling effect on the importance of legislatures as bodies of public deliberation, and indeed of public welfare and common good. Policy, which can be carried through into effect only by the sanction of the law, becomes the exclusive prerogative of the dealings between the executive and the elites, especially the monstrous power wielders - the oligopolists and a handful of autocrats- and legislatures are relegated to being perfunctory rubber stamps. The underlying logic, and the forces that it unleashes as well as is underscored by, means that the relationships between the legislatures and the imperial executives across the World are now marked by suicidal partisanship and subservience.

From a public law perspective, the twinning of the fates of legislatures to their efficacy of serving as fora for extolling the alleged virtues of the imperial executives, manufactured by a fawning media - financed and controlled by the big business - also implies that legislators are less “law makers” but more akin to cheer leaders, one tip of the leading edge of the storm troopers to attack any attempt at critiquing of law and policy instantiated at the behest of the imperial executive. Not just that. Even critiquing the performance, whether it be inside the legislative halls or outside in public for a, of the executive in implementing the law, is increasingly being treated as “anti-national” and/or treasonous. This slippery slide hasled us into a morass where we seemingly do not even have to bother to count the votes in the legislative halls. Not even when majorities are razor thin. The speakers of the legislatures, who for long now have been partisan party members, seemingly are now willing orchestrators of painting a thin veneer of institutional acceptance of the desires and commands of the imperial executive.

Once we accept the overriding assumption that the political processes have nothing to do or say about public welfare, common good and cherished national goals (most of which are not acknowledged with any degree of seriousness any longer), then the question of whether there is an actual majority or not becomes irrelevant. The processes of debating proposed laws, of voting on them in legislatures, and counting of those votes by people’s representatives are no longer a necessary indicator of legality. At best, they have begun to resemble a formality that is also now likely to be dispensed with.

And even that is likely to be picked off soon enough – we, after all, have recently been witness to repeated claims of one of the more powerful protagonists of the imperial executive, that vast numbers of citizens voting through early voting mechanisms sanctioned by law, are “stealing” the elections. Some of his party members have even accepted that more people voting has normally been inimical to their chances of winning the position of the Commander-in-Chief. In our own country, there have been three parallel sets of arguments made in some segments of public discourse: (i) that universal voting rights should be withdrawn, with one set of voices claiming that they ought to be withdrawn on grounds of membership of particular socio-religious identities; and (ii) yet another set of voices claiming that vast segments of the populace should not even be granted a right to vote, on the grounds that their alleged levels of productivity does not warrant their treatment as equal to the rich and those at the top of totem-pole of socio-economic hierarchies. Yet another set of voices has begun to articulate the position that may be public elections themselves may be unnecessary. One is tempted to claim, given the inordinate control that big business has over the executive, and through it, over the legislatures, that the substantive core of what we had hoped, in terms of dispersal of social and political power, with a one person one vote system is no longer a reality. And this necessarily undermines one of the foundations of the concept of social justice, for political equality as expressed through one vote and one co-equal voice is to be the first step in protecting citizens and human beings from the depredations of the powerful.

We were promised, in the early years of this republic, that the executive will have the moral obligation to implement the law, and extend protections for the citizens within the constraints imposed by the Constitution, not the least of which were to be the tenets of Article 14 and Article 21 against arbitrary action by the State. In the recent past we repeatedly witnessed brazen abdication of responsibilities in this regard, and that too with regard to sexual violence against women. In one instance four youngsters from the lowered classes were picked up, allegedly on suspicion of raping and burning to death a young upper caste woman. Even before the preliminary investigation was concluded, they were taken to the alleged scene of the crime to ostensibly “reconstruct the crime scene” and were shot dead in an “encounter” with the police. Seemingly the entire articulate section of the populace endorsed the action by the police – and it was widely accepted in public circles that the four youngsters from lowered classes were shot dead on a mere suspicion, that the encounter was in fact a fake one, and that in fact the police ought to be honoured for such an action. Very disturbing.

What was seemingly lost was the understanding as to why the law – and particularly constitutional principles – needs to restrain arbitrary action by the police. For once we grant normative sanction to arbitrary action, we also then inevitably make it possible that the police will then render its services in a manner that does not take into account the tenets of the rule of law; and extraneous factors such as the convenience of the political class and/or the benefits of an oligarchic class become the actuators, and misuse, of the force of the State. We had a situation, not too long ago, whence one young woman had to threaten public suicide, before the gates of the residence of a Chief Minister, in order to have an FIR lodged on her complaint that she was raped by the local MLA. It is alleged that, because the young woman had dared to complain, the police picked up her father and thrashed him so brutally that he died in custody. And now we hear of an even more gruesome incident of violence. A young Dalit woman, who was brutalized in an unimaginable manner, allegedly complained of being raped by four young men of the dominant upper caste in the village. From news reports it seems that the police had failed to register the complaint properly and failed to investigate in a manner mandated by law for many days. The young lady was hospitalized and finally passed away due to her horrific injuries. What did the police then do? No, they did not hand over the body to the family; instead, it is being alleged, that the family of the victim was locked up, and the body cremated by the police. The family, according to news reports, was barred for many days from meeting any journalist and/or politician, their cell phones taken away and – this gets to be incredible – there are reports that the police had contemplated  administering “pentathol sodium” to the members of the family of the victim. In a matter involving the alleged rape and the killing  of a young dalit woman, due to the actions of four upper caste youngsters, her family was to be subjected to a “Narco Test”, and her dying declaration seemingly of no consequence to the police. There were also reports that the State was allegedly planning to engage the services of a Public Relations firm.

Surreal. Just surreal. And horrifying. So much so, that the Allahabad High Court had to ask the officials, who were all members of various upper caste, as to whether they would have behaved in the same manner had the victim been either their own daughter or from a family belonging to the upper classes.

Let me hasten to add, that this complete and total disregard of the law is not entirely new. Nor is it exclusively in the provenance of this or that political party. It was not too long ago, that the Supreme Court had to declare as unconstitutional the policy of the State arming young tribal men to their teeth, forming a vigilante force, in aid of the coal mafia. However, what makes this even more alarming now, is that the rulers and their afficianados seem to think that the “image” of the ruling party, and that of its leaders, is to be protected at any cost. Furthermore, they also seem to hold the position that the reputation of the party and its leaders is not dependent on upholding the rule of law in protecting the fundamental rights of the citizens at the bottom of the socio-economic totem pole; but rather, that it is dependent on their ability to project absolute power over the citizens and ensuring the absence of any discourse that is contrary to the narrative they seek to present. Like any large corporation. The law is thus necessarily to be subordinate to the rule. When we embarked, in 1991 on the path of neo-liberalization, late Shri. S. Jaipal Reddy, a former Union Minister and known throughout his life for his honesty and indefatigable fight for democratic values had famously warned the main protagonists: “Please be careful, lest the market begins to act as the State and the State begins to act as the market”. It seems that what he warned us about has come to pass.

Surreal, yes. But should it be shocking, or even surprising, to us? My reply would be a resounding no. How could it be shocking and unexpected, when for nearly three decades now we have been guided by a philosophical and moral framework in which the dignity of the human being is subservient to the basal calculus of the market? When the Directive Principles of the State Policy – the vital soul of a transformative constitution - have been elided even from effective discourse? When the very programmatic elements of the Constitutional project that seeks to achieve the preambular promise of fraternity with dignity ( and recognizes as a self evident truth that unity and integrity of the nation is dependent on instantiation of social justice in all institutions of national importance) is effectively deemed to be irrelevant, and even inimical to national purpose, at least by the tenets of the neoliberal polity that the elites and power holders seemed to have subscribed to lock stock and barrel? How could we have expected any different when the notion of dignity of human beings as an essential element of justice has been degraded?

The angst that many of us feel, and the shock at the near demise of rule of law – indeed the very notion of rule of law as being opposed to the arbitrary rule of “man”/”regime” – is well described by many committed democrats. The many, many examples of violations of fundamental rights – a few of which I have broadly described as examples earlier – are testimony to the wider failure of the collective pacts of constitutional democracies. However, the mere expression of angst and limiting ourselves to a superficial analysis of what went wrong in terms of political rights (that have mostly been more fully enjoyed by the elite segments of the populace as they have the resources to work the levers of the State/polity and of the society), will not suffice. In fact, such analytical frameworks are fundamentally misguided and mislead us into forgetting the very problems that Babasaheb had warned us about in his speech to the Constituent Assembly when our Constitution was ratified. More about that a little later.

Amartya Sen had very presciently proposed, in his book Argumentative India, that the basic political freedoms were to be treated as essential elements of “Development” broadly conceived and then went on to bemoan the fact that the practice of “democracy” had failed and had measurably underachieved on another set of parameters that those committed to a genuine social democracy ought to pursue: protection of the essential dignity of human beings by equipping them with the capacities to self actualize, starting first with the removal of institutional and social hindrances to such a project. In the Indian context, that necessarily meant elimination of the depredations of endemic and graded inequalities in the socio-cultural, economic and political spheres that had normative support in institutional frameworks of governance and social control.

That brings us to how our founding fathers visualized what the foundations of a true social democracy would be. In the first instance, let us be clear that a conception of “ballots” as the sole outer limit of democracy was not countenanced, even if they did recognize that each electorally imposed change was a triumph of the belief in the small “r” revolution, in order to prevent the big capital “R” Revolution – if we use the distinction so presciently explained by Julius Stone in his book the Province of Law. It was realized, early on, that the desire, to tamp down the instincts for the big capital “R” Revolution on the streets, could not be premised on repetition of small “r” based changes of the power wielders through the operation of the ballot box. The changing of the government by ballots was thought of as a means to ensure that the new power wielders would be more zealous in pursing the essential transformative goals of the Constitution. The normative end points of the “big/capital R” Revolutions, they realized, could not be static utopias, but to be reimagined and reaffirmed on two facets of bedrock of equality: (a) an indefeasible commitment to the right to the ballot box and participate in the public discourse; and (b) an uncompromising commitment for the elimination of institutional and social blocks that hinder the building of capacities of self actualization, the core of human dignity. People of India were to be valued as contributing members of the public discourse individually and/or by forming coalitions of groups that transcend traditional and limiting identities so that a nation based on fraternity can be continuously imagined and built.

It is often complained that the concept of “democracy” is alien to the societies of the east, and hence, it is argued, the eastern countries will never really be in a position to create and sustain genuine social democracies. One of the things that Amartya Sen talks about, in his book “Idea of Justice”, is that a greater appreciation of various proto democratic experiments - from the Buddhist councils during the hey days of Maurya Empire and elected councils of the City of Shushan in South Western Iran to the Athenian Democracy and the “Constitution of Seventeen Articles” that was enacted during the reign of Buddhist Prince Shotoku in the Seventh Century - is needed to understand that instinct for democracy is not alien to Asia. Sen also points out that the philosophical frameworks of Asia had been able to take into account, much earlier than in the West, the understanding that even irreconcilable differences need not tear up societies – as long as human empathy for each other, and respect for each other’s dignity, are treated as primordial normative rules of all forms of social engagement. It would of course be particularly relevant to remember that one of the Seventeen Articles of Prince Shotoku emphatically asserted that “[D]ecisions on important matters should not be made by one person alone. They should be discussed by many.” Another one proclaimed “[N]or let us be resentful when others differ from us. For all men have hearts, and each heart has its own leanings. Their right is our wrong, and our right is their wrong.” And Babasaheb Ambedkar, the great scholar that he is, made the definitive assertion that philosophical moorings for establishment of a genuine social democratic society were far better understood in India, citing two Mahakavyas from Mandoka Upanishads: “AhamBrahmasmi, TatvamAsi” – translated loosely by the great man as “I see the universal principle in myself; and I recognize the same in you too”. He emphatically grounded his arguments regarding the feasibility of a social democracy in India on such ancient wisdom.

(to be completed)

The KG Kannabiran Lectures on Law, Justice and Human Rights are a series of lectures by jurists, lawyers and judges that celebrate his life, work and its futures. The series is organised by the family of KG Kannabiran (1929-2010).  

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Nov 14, 2020