Death of Democratic Institutions:
The Inevitable Logic of Neo-Liberal Political Economy and Abandonment of Directive Principles of State Policy
[Part-2]

B. Sudershan Reddy

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

One of the abiding questions of theory of democracy, and its practice, has been about how, notwithstanding the fact that “their right is our wrong, and our right is their wrong”, people could continue to respect each other without resentment? There are lessons from history – that growth of acceptance of democratic practices was inextricably tied to levels of material and cultural inequality and how the struggles for having a say in the protocols of governance, and consequent stability of the political order and of compacts for governance, invariably turned violent when levels of inequality threatened the assumptions of what constituted a fair distribution of social product and also eliminated meaningful public participation by vast segments of the populace. Some recent researchers have seemingly uncovered a historical fact:
“For thousands of years, civilization did not lend itself to peaceful equalization. Across a wide range of societies and different levels of development, stability favoured economic inequality…..” Consequently, “[V]iolent shocks were of paramount importance in disrupting the established order, in compressing the distribution of income and wealth, in narrowing the gap between rich and the poor. Throughout recorded history, the most powerful leveling invariably resulted from the most powerful shocks. Four different kinds of violent ruptures have flattened inequality: mass mobilization warfare, transformative revolution, state failure, and lethal pandemics….. Sometimes acting individually and sometimes in concert with one another, they produced outcomes that to contemporaries often seemed nothing short of apocalyptic. Hundreds of millions perished in their wake. And by the time the dust had settled, the gap between the haves and the have-nots had shrunk, sometimes dramatically.” (Walter Scheidel:“Violence and the History of Inequality from the Stone Age to the Twenty-First Century”.)

An implied argument is often made, both overtly and covertly, with regard to the above proposition: a cynical shrug by the elites that if that (violent upheaval) is what has to happen, then it will happen. And hence, the misguided argument goes, we might as well get on with our present proclivities, of uninhibited pursuit of individual welfare and enjoy it in our current disposition for ostentatious consumption. The problem with that argument is that the great and violent struggles, when they emerge, do not provide a time line as to how long they last. Nor do they specify who will emerge as the real winners and losers. That is what history teaches us. Furthermore, history also teaches us that, even from the perspective of those at the bottom, violent restructuring seldom results in a genuine social democracy. Instead, as Ted Honderich argues in “Violence for Equality”, violence invariably lends itself to the enthronement of a new class of elites, that may initially not be rapacious, but will eventually get to be predatory. And the cycle goes on.

As we emerged from the detritus of the Second World War, and two hundred years of pillage and plunder of India and Indians -in a collaborative colonialism of British masters supported and even underwritten by native elites selling the interests of their fellow Indians down the river - the founding fathers visualized a democratic order that was to, not only build a platform of public discourse but a robust social order in which most, if not all, citizens are provided such capacities as to defend themselves against the possibility of “epistemic injustice” in the context of policy formulation, implementation and governance. Furthermore, they also recognized that, if we are to forestall violent upheavals caused by inequality, then the State – as a forum of collective action – was to be informed by certain principles that were to be fundamental to state action: prevent mal-distribution of resources in a manner that is inimical to the welfare of all, and undertake such measures as will be needed to eliminate institutionally and socially imposed group and individual disabilities that prevent self-actualization as well as limit the capacity of citizens to be fully empowered participants in public deliberation.

The foregoing needs to be unpacked, and briefly examined, at a conceptual level the historical processes that had led to the enslavement of India – which essentially meant a rapacious denuding of its vast numbers of people of all shred of humanity. A colonial regime, built with the connivance of small proportion of elite communities, did not just drain India of most of the social product created here; it lined the pockets and the mansions of the few. As it made India’s elite communities more outward looking, on trade with the far distant parts of the British Empire, the local populace was seen more as part of the land to be exploited, an input at best, with no moral standing of its own. This had impacted the lives of a vast majority of Indians in two ways: it intensified the dehumanization already in place in a caste based feudal order that pre-existed the advent of the Company Rule, as every local norm of shared rights to produce – at whatever minimal level they may have existed -were eliminated; and with the decline of whatever little syncretic impulses that had been generated under the dominant empires of the pre 1700s, most of India became merely a land for extraction of unconscionable rents for a few dominant regional satraps, local elites and of course the John Company’s expropriating thugs.

The macro level contours of horrendous damage inflicted on India during the period of colonial rule have been well described by various scholars. From how a people who were producing 28% of the global output were reduced to the runt of the litter, how all its manufacturing capacity was destroyed resulting in a reverse migration back to the villages, and over 40 Trillion dollars of value was siphoned off to Britain – all of that, and plenty more, has been well recorded. What is less reflected upon, and may be even deliberately glossed over, is the fact that the rapine and plunder of India was made possible by elite segments of the population who were more than willing to form extractive and expropriating alliances with any ruler, foreign or domestic, as long as their rights of sharing in the spoils were preserved, and hence aided and abetted the plunder of India. This is an important aspect to keep in mind in order to understand why the Directive Principles of State Policy were thought of as being necessary, especially those, inter alia, insisting that every institution of national importance be informed by values and practices of social justice, that the operation of the economy ought not to result in a distribution of material resources of the community in a manner that will derogate from public welfare, and that the State shall take necessary steps to ensure that productive employment is available, that citizenry would have access to good quality education and be provided with the skills necessary to be able to acquire, interact and produce modern scientific knowledge. The history of behaviour of the elites vis-à-vis the masses did not engender the kind of confidence that Gandhi’s belief in a “trusteeship” role for the same elites took for granted. Babasaheb wanted an explicit commitment, as a textual marker that could aid the political discourse as to what the true national purpose was.

That compact, most people would have to agree is substantially in tatters well prior to reaching the substantive goals of social justice that we set for ourselves. We have again begun to extol the alleged achievements of the few, even if they be founded upon the plunder of India’s resources and its polity. What was expected to be an evolutionary process of informing all walks of life be informed by principles of social justice that was made morally more urgent by the making of Directive Principles of State Policy foundational to making of law and policy, to forestall a revolutionary and hence violent equalization has now been turned on its head.  The full fledged adoption of the tenets of neo-liberalism and the project of Globalisation has ensured that most are left with little and the few gain disproportionately of the social product. 

On a chilly wintry day in Delhi, after Jawahar Lal Nehru read out his “Resolutions Regarding Aims and Objectives”, it was critiqued by Babasaheb Ambedkar:
“ If this Resolution has a reality behind it, and a sincereity, of which I have not the least doubt, coming as it does from the Mover of the Resolution, I should have expected some provisions whereby it would have been possible for the State to make economic, social and political justice a reality and I should have from that point of view expected the Resolution to state in most explicit terms that in order that there may be social and economic justice in the country that there would be nationalization of industry and nationalization of land. I do not understand how it could be possible for any future Government which believes in doing justice socially, economically and politically, unless its economy is a socialist economy.”[1]

While Babasaheb, eventually chose to frame the national purpose free of any nomenclature of a specific “ism” – and he explicitly stated that this was in order to be able to carry forward groups of people who differed widely – the fact remains that, in his mind, and the minds of other fathers of the nation that the nation-state was to be founded on two principles: of an indefeasible recognition of human dignity of all that could sustain a fraternal order, and in turn be sustained by a fraternity so that the unity of the nation is assured. This was amply reflected by the warning sermon of Babasaheb on the day that the Constitution was ratified. It is worth citing him at length:
“On the 26th of January 1950, India would be a democratic country in the sense that India from that day would have a government of the people, by the people and for the people……. thought comes to my mind. What would happen to her democratic Constitution? Will she be able to maintain it or will she lose it again……

It is not that India did not know what is Democracy. There was a time when India was studded with republics, and even where there were monarchies, they were either elected or limited. They were never absolute. It is not that India did not know Parliaments or Parliamentary Procedure. …….

This democratic system India lost. Will she lose it a second time? I do not know. But 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……

If we wish to maintain democracy not merely in form, but also in fact, what must we do?
……not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them. We must begin by acknowledging the fact that there is complete absence of two things in Indian Society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which we have a society in which there are some who have immense wealth as against many who live in abject poverty. On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has to laboriously built up.

As the many lakhs of daily wage earners began their long, arduous and dangerous trek back to their villages, carrying their measly belongings on their heads, their feet being scorched on the hot tarmacs of our highways and byways, I was forced to utter again, another set of words of Babasaheb in the same speech – and I think they are worth repeating again:
“But there can be no gainsaying that political power in this country has too long been the monopoly of a few and the many are only beasts of burden, but also beasts of prey. This monopoly has not merely deprived them of their chance of betterment, it has sapped them of what may be called the significance of life”.

Much has of course been written about the different eras of the Supreme Court relating to how Directive Principles of State Policy were understood. I do not want to go into those well known debates, except to point to the fact that Gautam Bhatia has presented a rather fine synopsis of the place of Directive Principles in the Constitution of India and the extant constitutional gloss. In particular, his articulation of the foundations laid by the Supreme Court in Re The Kerala Education Bill [2] that even as Article 37 sets for the non-enforceability condition, it also lays down the scope for use of Directive Principles in interpretive contexts [3] is sound. The use of the Directive Principles in such instances is not tantamount to an “enforcement” but actually an assumption that the legislature has acted “reasonably” in undertaking its responsibilities of a Constitution that makes the principles enunciated in the Directive Principles of State Policies foundational to making of law and policy. Bhatia also maps, with great perspicacity, the necessity of understanding Directive Principles of State Policies as markers of reasonableness, and also as establishing a framework of values. I would at this stage not wish to engage in a lengthy analysis of all the three prongs of the roles that the Supreme Court has ascribed to the Directive Principles of State Policies; there will not be enough time to do that.

All of the foregoing relate to whether the Constitutional Courts did the constitutionally permissible thing by using the Directive Principles, in any manner or form whatsoever – howsoever slight – in adjudicating whether the positive affirmations in Part III relating to fundamental rights were significantly derogated from. The implicit assumption in the above is that it is the exclusive duty of the legislature and the executive to act upon the imperatives etched in the Directive Principles, and the constitutional courts do not have any role to play, in finding an overlap between the values enshrined in the Directive Principles and the Fundamental Rights guaranteed in Part III. But such a position would have been possible if and only if one had concluded that Fundamental Rights were themselves completely empty of positive content, the non protection of which can lead to substantive derogation of the rights in Part III itself.  The second essential condition would have to have been the legislatures and the executives be fully informed of the moral urgency of the problems of vast hordes reduced to living and dying in poverty, squalor, hunger, disease and illiteracy – generation after generation. 

More often than not the questions that implicate values in the Directive Principles as a part of Part III rights arise before the constitutional courts when both the legislatures and the executives have significantly allowed the underperforming of the State with regard to making an effort at achieving the goals within the orbits of both Parts III and Part IV. For instance, where the Supreme Court of India asserted that right to life cannot mean a mere animal existence, but that it encompasses the right to a life of dignity what exactly were its critics saying, whether they intended to or not? Though couched in the language of constitutional text, particularly the term “enforceable”, and drawing stricter lines of demarcation between law making and law interpretation, they fail to take into account the fact that consequences of the failures of the legislatures and executives in modulating the political economy in accordance with the directives in Part IV, and their implications in terms of non-realization of guarantees in Part III, are horrendous. And not for just a handful of people here and there, but large swathes of the populace. Indeed, one might even add a vast majority of the populace. The central concerns of the Directive Principles of State Policy were of the kind to liberate the citizens of India from squalor, illiteracy, hunger and powerlessness that had led to unconscionable levels of debasement of their humanity.

Any number of cases can be cited when the Supreme Court and other constitutional courts in India have used the Directive Principles of State Policy to read positive content into both rights guaranteed by Part III because no individuals with a conscience could possibly have found, under the circumstances of those particular cases, that lack of socio-economic and cultural rights were not limiting their ability to more fully enjoy the benefits of the rights guaranteed under Part III. The alternate would have been that even the one forum, in which issues of whether constitutional fealty are to be decided on a case by case basis on principles of justice, would not recognize the dehumanization they were subject to – both by virtue of their material conditions as well as that being further intensified by the State being indifferent even to the point of refusal to articulate the moral unease mandated by the Constitution.

While deontological foundations of the ethics of social action against debilitating inequalities and socio-economic deprivations themselves ought to be sufficient justification for declaratory judgements and directions by the constitutional courts, the consequentialist logic is no less persuasive. There is considerable amount of literature and discussions about how extreme forms of deprivation are counter productive in terms of both the larger issues of economic growth and development of the country and also severely limiting in terms of realization of full potential by individuals to such deprivation. The time allowed for this lecture would not be sufficient to go into all those matters. However, there is another consequentialist view that must be taken into account and is often not sufficiently recognized or discussed: and that relates to the issues of stability of the nation-state and the possibility of the constitutional project itself being derailed when societies are marked by extreme inequalities, of wealth, economic opportunity and also institutionalized inhibition of access to socio-political capital for a dignified life.

As I sit at my desk and dictate this lecture, I hear that the people of Chile have voted in an overwhelming majority – 78% - in favour of changes to the constitution to make the State commit to eliminate unconscionable levels of inequality, and to make education, health care and core infrastructural facilities part of the obligations of the State to provide. The referendum was held because of the massive protests of the people of Chile, particularly the youngsters in November 2019 raising fears of large scale massacres by armed forces. Fortunately, public pressure seems to have prevailed in allowing the people to express their views and has created the potential to change the constitution to reflect the core desires of the people of Chile. What makes this remarkable is that by no metric could one consider Chile to be an underdeveloped or even a developing economy. And yet the maldistribution of economic pie that results from social action, based on the aggressive neoliberal policy prescriptions of the Chicago Boys, has provoked massive levels of angst. It is fortunate of course that the capital “R” of revolution was transmuted into the less bold, albeit still a capital “R” style of constitutional revolution. It is of course but a first step, and we have to wait and see whether there is a greater accommodation of the wishes of the people expressed in such unequivocal terms.

The social movements and political revolution in Chile is of course not the only indication of a great churning. We have had many visuals, over the past three decades, of those who are left behind and not given a fair share of the social produce and feel that the gravy train is leaving them by taking to many forms of anti-democratic, and even “bloody means of revolution”, to use Babasaheb’s expression. Almost no country has remained immune. The response of the neo-liberal ideology, and the political economy of massive benefits for the few and very little for the many, has been to inflict a form of “epistemic injustice” – of treating the anxieties and the angst of those being left behind as not worthy of consideration in the legislative halls, in the clubby offices of the political executives, in the  boardrooms of corporate executives who buy out law and policy, and even finally, in the media. To the point that those being left out begin to feel that the nation-state is not theirs anymore. Or at least that the institutions of democratic governance are not legitimate.

Neo-liberal globalized political economy has created a thin veneer of global elites, whose preoccupations with the trivial (especially seen to be so when compared with the existential concerns of the poor and those being left behind) suggest a clear break between their worlds and the worlds of the vast majority. Nation-states were products of a movement of self identification of a group or groups of people as belonging to a common nation with shared compact of joint purposes. While initially they were premised upon narrow ethnic considerations, and of an “us versus them” struggle for resources and survival, it was realized that for nation-states to exist in peace with each other, and also remain stable and prevent violence within, they were to be premised on conclaves of inclusion based on empathy for the human condition. However, as Manuel Castells points out in his three volume tome, “Network Society”, the socio-economic conditions that arise as a result of increasing levels of inequality that accompany neoliberal Globalization, its consequent precariousness of life’s prospects and a sense of abandonment by the nation itself – potentially creates fertile ground for social unrest. The consequent search for identity, is likely to push the masses into choosing divisive platforms of hatred for the “others” who are then promoted as the ones who have misappropriated their chances and have created their anxieties. Partisanship is likely to reign supreme, the prospects of a common platform dim or non existent as at the root of the political economy that we allowed to be inscribed was not based on principles of social justice, empathy and inclusion but was structured as a zero sum game.

The above necessarily implies that politics is no longer the civilized discourse based on core democratic principle: “[N]or let us be resentful when others differ from us.” In a neo-liberal world view, in which only greed and self interest are the legitimate guides to normatively valid social action, politics is viewed only as a zero sum game that pits neighbour against neighbour. Are we now hearing the sounds of the “death struggle” of the idea of a liberal constitutional democracy? I will leave that to you listeners to decide whether we are at least hearing the early warnings of that possibility.

Even if we were to assume that “death of democracy” is way too strong an expression, and offends our delicate dispositions, surely we ought to be worried about whether the platform for public discourse and democratic decision making can extract commitment to the rule of law when collective action requires considerable sacrifice of the individual self interest? We are likely to face many, many more vital questions implicating the need to commit to collective action. In a sense the on going Global Pandemic (Covid19), horrifying as it is in terms of the consequences to its victims and the economic mayhem it has unleashed, is probably likely to be a small blip compared to the monstrous problems we are likely to face in the future. From the potentially catastrophic consequences of climate change to the creation of ineradicable gaps between the rich and the poor, that Youval Nova Harari talks about as a possibility on account of Artificial Intelligence and leaps in Biotechnology, we will need to depend more on our empathetic core, and our potential instinct for mutual recognition of indefeasible human dignity of each other. Surely, the horrifying images of the daily wage earners walking 1000+ kms in a hot summer with their meagre belongings should at least make us pause to think about whether we are being compelled to abandon the possibility of building a society based on empathy for the human condition.

Let me end this lecture here. But before I take leave, I need to say a few words that affirm the possibility of greater sanity in human interactions. There are many, many reasons for our society to be independently thankful to Smt. Vasantha Kannabiran. Her own individual contributions have been no less than that of the man in whose memory these lectures are being organized. What a remarkable couple, that they gave so much of themselves to make the society better for others. In addition to the thanks I must express for all of that, I must of course thank you, Smt. Vasantha Kannabiran for giving me this opportunity to speak on this occasion. I truly feel humbled. I must also thank Dr. Kalpana Kannabiran and other members of the family for organizing these lectures. They are much needed, and it will always be my privilege to be associated with any such activities in memory of your father, Sr. Advocate K.G. Kannabiran.

Long live the Constitution of India.

Jai Hind.

References

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 21, 2020