On November 26, 2011, Pratap Bhanu Mehta delivered the first Constitution Day lecture organised by Daksh, a Bangalore-based N.G.O, that has been in the news recently for its efforts to evaluate the performance of legislators in Karnataka. Mr. Mehta, the President of the New Delhi-based Centre for Policy Research, has held various positions at Harvard University and the NYU Law School. During the event held at Bangalore’s National Gallery of Modern Art, he spoke on the subject, “Is this India’s Progressive Moment”. Harish Narasappa, one of the founders of Daksh, said that the lecture series was started “to raise questions about how our Constitutional democracy has performed and to come up with new ideas for the future”.
Edited extracts from the transcript of the lecture
Mr. Mehta said that the term “progressive moment” in the title of the lecture was derived from analogies with U.S. history but warned that those analogies were only meant to be heuristic aids to thinking. Ashutosh Varshney and Jayant Sinha had argued that the previous five to seven years had been India’s version of the ‘gilded age’, a term that indicated a period of rapid growth, increasing urbanisation, and a growing middle class, but at the same time, extraordinary rent-seeking and an unprecedented nexus between business and politics.
The argument is in the United States, the gilded age was followed by a progressive movement as a reaction against the excesses of the gilded age. “Now, at one level, this comparison between U.S. and India strikes us as very odd since the historical circumstances are very different and so are the social circumstances and our conceptions of national identity. But if you were taking a strictly policy-wonkish view, it is not an entirely outrageous comparison.”
Pratap Bhanu Mehta
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Mr. Mehta said he wanted to begin by going back to the founding movement and the Constitution of India. The fact that our constitutional transformation did not fail was in itself a remarkable achievement, made possible not just by the text of the document but also by the surrounding circumstances in political culture. “If you were to ask most people who engage themselves with the Constitution, ‘What does the Constitution mean to you now’ or ‘How has the Constitution acquired a place in our national life, what sustains it?’ I suspect you would get two contrasting answers.”
The idealist view would be that the Constitution was a semi-sacred text, “the lode star of our political existence which has given the basic frame work and underwritten the basic social contract of our society.” He said that the term ‘constitutional morality’ had been used a lot in this context. B.R. Ambedkar made an extensive reference to the term in the Constituent Assembly Debates. He was not talking about the text but “the underlying sensibility, an appreciation for plurality, the spirit of the Constitution that sustains that text.” Mr. Ambedkar quoted extensively from George Grote, a great nineteenth century Greek political historian who described constitutional morality in these words, “Constitutional morality is a paramount reverence for the form of the constitution, enforcing obedience to authority and acting under these forms, combined with the habit of open speech subject only to particular legal control but unrestrained censor of those authorities as to all their public acts.” Ambedkar emphasized the phrase, “unrestrained censor of all those acting in the name of public power”.
Ambedkar also made the remarkable claim that one of the great features of the Indian Constitution was that no part of government or no entity could claim monopoly in representing the people. “His idea was that, people in that sense cannot be represented; no institution can stand up and say we are the sole repositories of what the people mean. The conception of what the people want and require is a conception that emerges through open speech and discussions and debate. In that sense, Ambedkar’s vision of constitutionalism was firmly rooted in the influence of his teacher John Dewey, one of the great thinkers of the progressive era. This is sort of one version of the Constitution – a constitution that facilitates a kind of democratic experimentalism by consensus.”
On the practice of constitutional morality, most people, Mr. Mehta argued, would agree with Heinrich Meier’s view of the Roman constitution. Meier had written that Caesar, unable to see them as autonomous entities, was insensitive to political constitutions and the way they operated. “He could see them only as instruments in the interplay of forces. He had no feeling for their power but concerned himself only with what he found useful or troublesome about them.
Mr. Mehta said that there was therefore the idealist or normative promise of constitutional morality and the reality of using the constitution as a tool by which to knock other people on the head rather than viewing it as a set of norms that we all internalise and share. “I think the struggle for the soul of Indian politics is which version of constitutionalism will triumph?”
From the old order to the new
Our constitution has been a huge success in its instrumentalist version. “It has fragmented power in a way that has produced its own stability. But the question is, can we make the transition from the Constitution being simply an instrument in the interplay of forces, convenient in the hands of some to beat up another?” Mr. Mehta said that a contemporary version of this philosophical dilemma was playing out in Indian politics. “I think one of the hopes that India is at its own progressive moment comes from the fact that there seems to be widespread consensus that the old principles on which the Indian state administered the country are on the verge of breaking down or have broken down irrevocably, and this breakdown is all for the good.” The old principles, embodied in the Government of India Act, 1935, were the vertical organisation of power, the association of power with secrecy, wide discretion that was not subject to public reason, the centralised state, and the relatively simple identities of actors within this polity.
“Now, the revolution that we are undergoing is that it is very clear that no government can hope to run India if it now organises governance on any of these principles. Secrecy is gone, and by secrecy I don’t mean the RTI kind – that is only one element, it is also the generation and production of information about social working. If the government doesn’t tell you that your air is polluted, then some nice N.G.O. in Bangalore will tell you that it is. So there has been a sort of relative shift in power.”
“Vertical accountability is gone thanks to the dispersal of power within the institutions of Indian state and outside, like what Daksh is doing — holding legislators accountable by examining their records. We have seen different examples of this in the C.A.G., media, all kinds of institutions. A state official simply cannot say I have done my bit to be accountable if I have satisfied my boss, which is really the way in which the principle of accountability operated in practice in the past. Centralisation is clearly unsustainable to the extent that the Indian state exercises.”
According to Mr. Mehta, the important questions were what would replace the old principles and what pre-conditions would enable a more successful transition to a new order based on more horizontal accountability, decentralisation, open transparent government, and government by public reason and discussion rather than arbitrary power? “It is in this context that the analogy with the US progressive movement is often invoked: if we had a progressive movement of the kind that the US had in its revolt against the gilded age, we would be successful.” He also added that India’s dilemma was not unique. “Almost every developing country – Brazil, China – in different ways are also facing the same structural dilemma.” In India however, he said that the transition would be more difficult than anywhere else.
From left to right, Mr. B.N. Harish, former Chief Justice of India M.N. Venkatachaliah, and Mr. Pratap Bhanu Mehta.
Closed political system
The first reason was that even though India was a democracy, its ruling order was one of the most closed that any modern democracy has seen. “To put it provocatively, we have one national party which is a kind of quasi-monarchy legitimised by democratic mandates and another party which is a quasi-church and a pretty dysfunctional one at that. You have to go back to 1840s’ France to think of these analogies: so, a party of a monarchist legitimate order and a party of a decaying corrupt obnoxious church are your two national parties. As with any old legitimist order involving a party of the monarchy and another of the church, they have been in collusion with each other.” Mr. Mehta said that both parties subscribed to Heinrich Meier’s description of what the Constitution meant to them. “For both, the Constitution is an instrument for governing, not the source of norms. Both are in collusion in the sense that ninety per cent of those members of the church and monarchical party could have easily been members of the other party, if you take the ten per cent fanatic right out of the picture. But interestingly, what has emerged very powerfully in the last two years (and this has shocked me) is that, both of them have an interest in subverting or not appropriating the anti-corruption agenda that is sweeping through society.” He said that competition, the mechanism that democracy relies on for accountability, was not working. “No political party is willing to articulate or stand up and say, this is our vision for transition from the old order to the new order. By accident, some have subscribed to elements of this but you do not have the emergence of a political structure that can actually make this transition.”
“In comparison to other democracies, because power in political parties is so centralised, we don’t get these natural openings at the top that other political systems do — either because of term limits or Presidential forms of government. In a Parliamentary federal system, the entry barriers to politics are also going to be high. I don’t mean entry barriers at a local level, but entry barriers in terms of being able to generate sufficient nationwide momentum to form an alternative to these monarchical and church parties are much higher because there is no natural locus of political mobilisation. So, we must acknowledge, despite India’s openness, it has a much more closed political system at the top than in any other contemporary democracy that I can think of.”
Privatised middle class
“The second feature which I feel will make the struggle harder in India has to do with the character of the Indian middle class.” Historically, middle classes have played an important role in this transition for a variety of reasons such as education and a different kind of engagement with the state. For Mr. Mehta, the most important dynamic of a growing middle class was that while a small group is engaged with the state at a high level of abstraction, most citizens rarely engage in the ordinary politics of survival and the State creates structures of patronage to keep them that way.
The Indian middle class was distinctive because it was the most ‘privatised’ sociologically. “Take any attribute, such as primary school enrollment: urban India is soon going to approach sixty to seventy per cent (in population), which is unprecedented in historical terms. If you take consumption of two-wheelers, the consumption graph looks very nice but the fact that in India, even the lowest twentieth decile has to have a two-wheeler to be able to get around is actually a very bad sign. On any index of engagement, therefore, education, health, water, sanitation, transport and possibly even energy and electricity, it is the most historically privatised middle class that I have seen in comparative development literature.”
“Now, the jury is out on what this extent of privatisation of the Indian middle class will actually do to the race between its exit and its demand for accountability. I don’t want to go into whether this exit was justified or what created it or whether this was a rational response to the way that the state delivered goods and services, but once you are locked in to an exit mode of coping – for example, the Indian middle class doesn’t have a stake in public schools, public hospitals, water, transport – even with the best of intentions, is it going to be the site for that kind of democratic experimentalism with institutions of the state which Ambedkar and Dewey hoped and talked about?”
“One thing that I find amazing about the Indian middle class is that it is attuned to thinking of itself as a pure meritocracy – which is a middle class that has risen by dint of its own talent. Again, sociologically speaking, for the politics of common good and experimentalism, a meritocratic society is about the worst form you can imagine, because meritocrats feel that whatever privileges they have got are the ones that they are actually entitled to.”
Whither bilingual politicians?
Mr. Mehta referred to something Ramchandra Guha had pointed out in recent writings — the death of the bilingual intellectual. Even fifteen or twenty years ago, India had genuine bilingual intellectuals who could bridge the politics of the vernacular with larger cosmopolitan concerns and social changes. Now, Mr. Mehta said, we are also witnessing the death of the genuine bilingual politician — a politician who is both embedded enough in society to perform the function of social mediation and yet connect that arm to a larger national or international narrative.
Except for one or two politicians at a leadership position at the state level, such as Mamata Bannerjee, Jayalalithaa, Narendra Modi, or Naveen Patnaik, there are no politicians beneath them who actually come to Parliament commanding a social base of any kind. This diminishes the capacity of political parties to perform any kind of social mediation. Further, most of the new breed of urban politicians in cities like Mumbai and Hyderabad, are actually contractors. “It is an extraordinary social profile. It shows that we have moved away from the idea that politics as a form of social mediation to a much more deepening of the idea that politics is really about an access to instrumental growth.”
Mr. Mehta said he would caution against over celebrating leaders like Naveen Patnaik and Nitish Kumar. “Most of them have been able to create their legitimacy in the last eight to ten years based on two cardinal facts. One, which is very important for the politics of accountability, is that the scale of the Indian State has changed enormously. I think one of the most under-examined things in the study of Indian politics is the fact that, by and large, between 1975 and 2000, most state governments were either relatively bankrupt or grew at an incremental rate. Even the best performing state leader at that time had small marginal impact on his population.” The scale of the state was transformed by growth and debt restructuring in the late 1990s and 2000. This allowed some good Chief Ministers to use that scale to create an alternative basis for legitimacy. It rested principally on bypassing their political parties. “So the common refrain is that Nitish has successfully insulated the bureaucracy from his party as has Modi in a very different way, as has Naveen Patnaik. The question with all of these states is, can they make the transition from this sort of low-hanging Neo-Keynesian expansion to a more genuinely participatory form of state? The fact that they are all resisting decentralised modes of governance makes you feel as if you are in Bismarckian Germany in these states – so, you will have this moment where an individual does very well for ten years but the underlying structures do not quite change dramatically.”
Mr. Mehta said that in spite of the fact that power had moved to the states, it was too premature to say there was genuine decentralisation. “In this context, one thing that you have to say in favour of India Against Corruption, whether you agree or disagree with a lot of what they do, is that they have brought about a couple of things in common with the progressive movement in the U.S. One is the politics of muck-raking (the term muck-raker was actually invented during the Progressive Movement when intrepid journalists simply held press conferences every month exposing one form of corruption or the other); the second, for which you have to give them credit, is that they are the first to have actually placed decentralisation, front and square, on the political agenda.”
The equilibrium of the old order
“The last and final difficulty which I will present is the following: the old system for all its faults had a certain equilibrium. We had all adapted to it. It made us complicit in it but we had accepted that’s how the state runs and that adaptive equilibrium worked at all levels of society. Big business knew how to operate that state and there was also lower level complicity in corruption.”
The difficulty is that during a transition to new rules, there would be a great danger of choking off small freedoms of the old order. “When you move from zero or weak enforcement to mild enforcement of rules, the first thing that would expect to happen is that most people, particularly those who invest and not just big investors, will stand back and say, ‘We don’t know what the new rules of the game are going to be.’ This is true at all levels of society.”
Mr. Mehta said that one of his consistent critiques of Indian liberalisation has been that it was for big business only. “It facilitated all the exit options for big business in terms of preferential credit. However, what it also did was, in a sense, make life difficult for small business for whom life had always been difficult. But right now India is in this very precarious position, where nobody knows what the new rules of the game are going to be.” He said the transition was creating more uncertainty than is necessary because the old system was still too entrenched, “still using every trick that it can of the old order to try and subvert the seeds of the movement”.
“The danger in this situation is that, if growth slips as a result, then all bets are off on this moment of Indian revolution.” Growth was the single most unsettling and potentially revolutionary fact about modern Indian history, particularly after 1998-99. It unsettled social relationships at so many different levels.
Mr. Mehta listed the different elements of required for progressive politics.
1. An emphasis on growth and macro-economic stability.
2. A form of inclusion, both in a social sense (where you can actually speak the vernacular language to create a political culture and make people feel a part of that political culture) as well as in an economic sense.
3. A commitment to radical decentralization, which allows a form of experimentalism to emerge, without which we cannot survive.
4. A premium upon innovation, knowledge, and productive energies.
5. A transition of the state from a hierarchical to the horizontal order.
The trouble with the Indian political landscape, Mr. Mehta said on a concluding note, was that there was no political formation where all of these elements went together. Given the structure of Indian politics, the only thing that is clear is that the climate is propitious for the muck-rakers to really take up the battering ram and try and break down both the monarchy and the church.
(Aju John is part of the faculty at myLaw.net)