In a conversation over snacks, a colleague commented that our current political system is flawed. He suggested some remedies. Among them were having a constitutional review every x years so that the constitution can keep up with the times, requiring that a winning candidate has a minimum percentage of the votes from his constituency by conducting a multi-stage polling process, having a performance review of every candidate once a year etc. I remained unimpressed. An analogy might help here. Consider a pipe that transports an extremely corrosive gas. Because of the corrosive nature of the gas, the pipe develops frequent leaks. One could try to repair the pipe constantly or one could ask why one is dealing with such a corrosive gas in the first place. The remedies my colleague suggests are analogous to the former approach. They can push and delay the inevitable, but cannot change its nature. Our political system is flawed – fundamentally. It tries to achieve that which cannot be achieved. The only techniques it understands are threats and coercion. But men cannot function when they are coerced. Every human activity from the formulation of a purpose to the production of values to achieve it requires the exercise of a free mind. A system designed to enable coercion (read my earlier posts on the constitution) is fundamentally flawed. It cannot be repaired by making the coercion more “efficient”.
The Times of India reports
The Supreme Court has ruled that a person’s reputation is an inseparable part of his fundamental right to life and liberty and hence, the police and other authorities with the power to detain should be very sure of their facts against an individual before taking him into preventive detention and lodging him in jail.
“The reputation of a person is a facet of his right to life under Article 21 of the Constitution”
Let me reiterate some facts that I noted in an earlier post. Under the Indian constitution:
I do not have the right to express my thoughts freely. The state may impose “reasonable restrictions” on my expression “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” (article 19)
I do not have a right to my property. (The right to property is not a fundamental right)
I do not have a right to my body. “Nothing in this article (article 23) shall prevent the State from imposing compulsory service for public purposes”
But now I do have a right to reputation – a right to what others think of me, a right to others judgement. And this is what the Times has to say about it
It should be welcomed by those who are disturbed by the rampant trend among cops to send the accused to jail even for bailable offences or when the evidence has not fully firmed up. Anxious to appease the chorus for swift justice and to be seen as discharging their law enforcement brief, cops and other detaining authorities see jailing the accused as an easy option.
There is no need to invoke a right to reputation to keep the police from abusing their powers. In the earlier post I wrote,
“This mess of contradictory and concrete-bound articles institutionalizes an approach of rampant pragmatism to governance. It institutionalizes the idea that there are no absolute rights, no absolute principles and no absolute limits to the actions governments can take.”
This ruling and its purpose serve to underline that.
Fareed Zakaria’s book “The Future of Freedom – Illiberal Democracy at Home & Abroad” is a critique of democracy. Zakaria notes that democracy is not the same thing as constitutional liberty. He notes that democracy is a process of selecting governments whereas constitutional liberalism is about selecting government’s goals and refers to the Western tradition of seeking to protect an individual’s autonomy and dignity against coercion. Drawing examples from history and from around the world, he argues that societies that had liberal institutions, the rule of law and protection of property rights were able to turn into liberal democracies, whereas in societies that did not have such institutions, democracy allowed tyrants, demagogues, dictators and autocrats to cement their power. He argues that the presence of the church as an independent authority from the state helped in preventing concentration of power and allowed liberal institutions to develop. Similarly he argues that the political strength of the landed aristocracy in England was good for liberty as it helped to institutionalize property rights and kept the monarchy weak, while the political strength of the state in France was bad for liberty as it kept society dependent on the state.
Zakaria picks several examples of countries around the world that tried to democratize too early – before developing the necessary social institutions, or before becoming sufficently wealthy – and failed. He also notes that the wealth necessary for a liberal democracy must be earned wealth and not the wealth obtained from taxing a canal or exporting oil.
Regarding the Middle East, Zakaria denies that there is anything specific about Islam that makes its followers more susceptible to authoritarian rule. He also rejects the idea that Islamic terrorism has anything to do with poverty in the Muslim world. He notes that until the 1940s and 1950s, Arab countries seemed to be doing better than several other newly democratizing ones. Instead he blames the total failure of politics in the Arab region for the rise of radical Islam. He writes that with no free press and no political parties, mosques became the place to discuss politics, and the language of opposition became the language of religion. He also notes that the Arab states have allowed free reign to the most extreme clerics to give themselves legitimacy.
Regarding the American political system, Zakaria writes that since the 1960s all of America’s political institutions have democratized. He cites several examples – the selection of candidates by primaries instead of party decisions, the campaign finance laws that made candidates dependent on fundraisers, the expanded number of sub-committees, the changing of rules to allow unlimited number of bills, the open committee meetings and recorded votes and the system of referendums and initiatives. He describes how all these changes have opened up politics to the influence of special interest groups and lobbyists and how democracy has defeated itself with all its institutions being controlled not by a majority but by a variety of highly motivated minorities and special interest groups.
Zakaria goes on to describe the deep changes that democratization has caused even outside politics. He describes how religious figures like Billy Graham and Jerry Falwell have toned down religion to make it appeal to the masses. Zakaria writes that in general, members of professions such as law, medicine and accounting were public spirited individuals who operated on high standards and these standards have deteriorated with time. He blames this on the changes made to make these industries more open and competitive such as the decision to allow lawyers to advertise and to allow accountants to charge contingency fees. He writes that the internet frenzy destroyed the separation between the bankers and the researchers in the banking and brokerage industries, opening up conflicts of interest and perverse incentives. He writes that the central shift underlying these changes is the role of the elites. He writes that while elites in the earlier days saw themselves as elites and recognized their responsibilities, today’s elites are a bunch of smart college graduates, who are not conscious of their elite status and thus enjoy power without exercising responsibility. He writes how a school such as Groton which once emphasized character over achievement in its students now focuses only on achievement. He describes how in the movie “Titanic”, the first class passengers are shown to scramble into the small number of lifeboats, whereas in the actual accounts of survivors, the “women and children first” convention was observed almost without exception among the upper classes. He writes “The movie-makers altered the story for good reason: no one would believe it today.”
In his concluding chapter Zakaria writes that the 20th century was marked by the regulation of capitalism and the deregulation of democracy and that both experiments overreached. He writes that whenever a problem arose, the solution was more democracy and more regulations. He writes that the way out of the problems is to delegate democracy to mostly autonomous entities, that are limited by democracy but shielded from political pressures. He writes that the institutions and attitudes that preserved liberal democratic capitalism, built up over centuries are being destroyed in decades and if these trends continue, democracy will face a crisis of legitimacy. He finishes with “Eighty years ago, Woodrow Wilson took America into the twentieth century with a challenge to make the world safe for democracy. As we enter the twenty-first century, our task is to make democracy safe for the world.”
Zakaria’s critique is very welcome today in an age where democracy is often seen as unquestionably good and historically inevitable. The numerous examples he draws clearly show that it is neither. His description of the state of American politics and the role of democracy in causing it is well presented with concrete examples. He makes a number of good points in this book. And yet, there is something missing in his analysis. There are atleast three distinct phenomena that he refers to as democratization – the way people select their government and the increased amount of power that elected representatives have, the way people make economic decisions and the increased importance these decisions have in shaping the economy, and the shift from “high culture” to “popular culture”. While these phenomena are certainly related, they should not be lumped together under a single concept, especially considering that the purpose of the book is to examine the problems with democracy. It is only the first phenomenon that can accurately be called democratization. Including the other two phenomena under the same concept makes the concept useless for analytical purposes – something that Zakaria himself warns about at the start of the book.
Consider these phenomena in more detail.
All over the world, government powers and policies are increasingly being determined by popular opinion (or atleast what is seen as popular opinion). Politics is increasingly seen as a struggle for inclusion and representation and not as a means to achieve a proper social organization. The focus is increasingly on ‘who gets to make decisions‘ and not on ‘what decisions are made and whether they are legitimate‘. In the absence or weakening of any limits on political power, government necessarily become corrupt, illiberal and dysfuncional. Special interest groups take over such a system and dominate all policy making. This is a problem inherent in democracy and Zakaria does well to illustrate this.
Economic changes (“consumerism”):
In the last few decades the bargaining power that “consumers” enjoy has risen steadily. We have come a long way from Henry Ford’s times (“You can have any color as long as it’s black”). This is a result of technological progress and has almost nothing to do with democracy. The only connection it has with (political) democracy is that it makes democracy more dangerous and its ill effects more catastrophic. It is impossible for people today to know about the workings of the global economy in any sort of detail. Which makes it impossible for the government (whether democratic or not) to control or regulate the economy effectively. Zakaria does not discuss these issues much and incorrectly labels this phenomenon as part of a process of democratization.
Rise of popular culture and the decline of values:
In the last few decades, high culture has declined and popular culture has risen. Zakaria uses a quote by Seabrook to describe this process “The old cultural arbiters, whose job was to decide what was ‘good’ in the sense of ‘valuable’ were being replaced by a new type of arbiter, whose skill was to define ‘good’ in terms of ‘popular’…” This decline of high culture goes hand in hand with a general decline in values – people no longer have rigid standards for judging behavior, the word ‘judgemental’ has become a perjorative and a good number of people would assert that there are no objective values. Zakaria does a good job of describing the symptoms of this trend. However he does not even attempt to examine its causes. But without an understanding of these causes, there is no way to reverse the ill-effects of democracy. Consider Zakaria’s proposed solution – the creation of autonomous regulatory bodies such as the US Federal Reserve (which he considers a success and seems to hold in high esteem). Today we see that the Federal Reserve has not been able to prevent a catastrophe and there is strong evidence to suggest that the catastrophe was in fact its own creation.
It is clear from the book that Zakaria is troubled by the general decline of values and that he respects the older value system, atleast in a general sense. He writes
It is easy to mock the Anglo-American elite, with its striking air of high-minded paternalism, born of a cultural sense of superiority. But it also embodied certain values – fair play, decency, liberty, and a Protestant sense of mission – that helped set standards for society…When powerful people acknowledge that there are certain standards for behavior, they limit their own power, however indirectly, and signal to society, “This is what we strive for.”
and a couple of pages earlier describing the decline of the elite status of the WASPs (White Anglo-Saxon Protestants)
As America became more diverse, open, and inclusive over the twentieth century, the WASP establishment faced a dilemna: it could maintain its power and refuse to allow new entrants into its sanctuaries, or it could open up to the new rising non-WASP members of society…But in the end the WASPs opened the doors to their club… Therein lay the seeds of the establishment’s own destruction… The WASPs made this move partly because they were pushed, but also because they knew it was the right thing to do. Confronted with a choice between their privilege and their values, they chose the latter.
If this description is correct, there is a paradox. The elite chose their values over privilege and yet this choice helped in the decline of their values. This paradox is at the heart of all of man’s problems. It has plagued people throughout the ages. The way out of this paradox is a code of ethics that is geared to man’s life, here on earth, by which the moral is also the practical and which when practised results in both material and spiritual reward – the code of rational egoism.
The complete expression of the constitutional liberal democracy that Zakaria wants to protect is a system of capitalism and it can only be protected with an explicit moral base. Although Zakaria presents a quite insightful analysis of the workings of democracy and its problems, he does not discuss the foundations of politics at all, and without it, his book is incomplete.
Note: This post can also be found on desicritics.org with an independent comments section.
Part 2 of this series examined the contradictions and ambiguities in the Indian constitution.
A contradictory and ambiguous constitution has direct effects on the functioning of the judiciary and the legislatures. With no firm principles to guide them, judges have no standards other than their own convictions. With no clear limits on the powers of the legislature, legislators succeed in enacting laws with the sole purpose of extending their hold on power.
However it is the indirect effects of the constitution on the functioning of the executive (the bureaucracy) that this post seeks to examine. Consider a bureaucrat who sincerely intends to do his duty. His duty consists of implementing rules and policies decided by the legislature. The policies decided by a legislature concerned only with extending its hold on power cannot be implemented without violating the rights of individuals. The bureaucrat is left open to charges of discrimination or improper implementation if the victims of the policies seek justice. This creates a motivation to delay any required action or to push responsibility for it on someone else. Moreover the policies of the legislature are subject to arbitrary change as the balance of power shifts. The bureaucrat is then forced to reverse any actions he may have taken. The bureaucrat simply has no way to do his duties honestly. Any principled action he takes will earn him enemies from people in positions of power. Now consider a bureaucrat who has no scruples in doing whatever it takes to advance his career. All that he has to do is to ensure that he remains in the favor of his superiors and take as little responsibility as possible.
The arbitrary and unlimited powers conferred on the legislative and executive branches by the constitution make it impossible for the bureaucracy to function honestly. It is futile to complain that the bureaucracy is ‘corrupt’. It is impossible to reduce ‘corruption’ in the bureaucracy or bring transparency to its functioning without a proper constitution. And it is impossible to have a proper constitution without a widespread recognition of the proper role of a government.
Part 1 of this series concluded with
“The Indian constitution grants parliament almost unlimited powers to enact laws. It is this that allows politicians and thus the bureaucracy to get away with anything. It is this that breeds corruption.”
This post seeks to elaborate. A constitution is a document that establishes the structure, procedures, powers and duties of a government by means of principles. A constitution is the standard to which enacted laws must confirm and by which they are to be interpreted. For a constitution to be meaningful, it must be unambiguous and consistent. For a constitution to be successful, its principles must be valid.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
23. Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
31A. Saving of laws providing for acquisition of estates, etc.—
(1) Notwithstanding anything contained in article 13, no law providing for—
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property
(2) In this article,—
(a) the expression ‘‘estate’’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement
The Indian Constitution is for the most part not a codification of principles at all, but an attempt to solve some of the social problems (such as untouchability, feudal land holdings, extreme backwardness in most sections of society etc) at the time it was written. Most of the articles follow a pattern of expressing a principle and then laying out conditions under which it can be violated by the state (Also see Ergo’s post as an example of this). This mess of contradictory and concrete-bound articles institutionalizes an approach of rampant pragmatism to governance. It institutionalizes the idea that there are no absolute rights, no absolute principles and no absolute limits to the actions governments can take. The Indian constitution is not a document that protects individuals from the misuse of power by the state. It is a document that protects the state from any legal challenges that individuals might raise (Perhaps the most common phrase in the constitution is “Nothing in this article shall prevent the State…“)
Part 3 will examine the relation between civil service and the constitution.
In an article in The Indian Express, Meeta Rajivlochan says that civil servants should “owe allegiance to the constitution first and foremost”. She goes on to say
“Overt neutrality and strong commitment to the Constitution and the rules of the land make a bureaucrat function much better”.
“It is the danger of relinquishing a commitment to the Constitution of India in favour of a more personalised commitment (political, religious, cultural or otherwise), and not corruption, which is by far the greatest malaise facing the civil service today. Corruption merely undermines the moral integrity of the individual. Abandoning of political neutrality undermines the entire structure and logic of bureaucracy.”
Meeta is right that corruption is not the greatest problem with the Indian state. She is also right in her identification of the problem. But she misses out on its cause. The idea that civil servants should be committed to upholding the constitution comes from the idea of rule by laws, not by men. But an implementation of that idea is only possible if laws are objective, principled and limited. The Indian constitution grants parliament almost unlimited powers to enact laws. It is this that allows politicians and thus the bureaucracy to get away with anything. It is this that breeds corruption.
(Part 2 will take a more detailed look at the Indian Constitution)