It
is an honour for me that I have been asked to deliver
the first Braja Mohan Sharma Memorial Lecture, but
my sense of being privileged is overshadowed by the
grief I feel when I think of Braja's passing away
in the prime of his life. A person so fond of life,
so passionately devoted to the cause of the oppressed,
so richly endowed with an incisive intellect, and
so full of promise, could not live out his life to
the full and realize his great potential. I was almost
the last person to talk to him at length and I can
still feel the warmth of his company. The best way
for all of us whose life was so enriched by his company
to respect his memory is to carry forward the cause
of social transformation that was so dear to him.
In this spirit, and also keeping in mind the fact
that Braja was an illustrious member of the legal
profession, I have chosen the topic for today's lecture.
I
Third
world countries like India have one unique characteristic
which is often not recognized, namely that the political
empowerment of the people, at least the kind of empowerment
which comes from having a parliamentary democracy
based on universal adult suffrage where the people
most enthusiastically exercise their voting rights,
occurred in these countries before bourgeois rule
had consolidated itself. This is a fact of enormous
significance which is missed both by those who debunk
parliamentary democracy in India as being just a ''façade'',
a ''fig-leaf'' or a ''fraud'', and by those who deny the
very concept of a ''ruling class'' and see the polity
only in terms of a set of claims, counterclaims, compromises
and alliances carried out within a parliamentary democratic
framework, i.e. see parliamentary democracy itself
in entirely empirical terms. Neither of these positions
is correct in my view, and both lead to a glossing
over of some of the crucial contradictions manifesting
themselves at present.
In Britain the introduction of universal adult franchise
occurred only in 1928 when the difference in the minimum
age for eligibility to vote between men and women
was removed. This is nearly 75 years after the climacteric
marking the consolidation of bourgeois rule, which
many perceptive observers have dated to the mid-nineteenth
century. In France universal adult franchise came
only after the Second World War, which again is nearly
75 years after the collapse of the Paris Commune which
marks the process of consolidation of bourgeois rule.
In short, in the advanced capitalist world, the introduction
of modern democratic structures post-dated the consolidation
of bourgeois rule: the bourgeoisie, having consolidated
its power and fashioned its own State, allowed the
population at large a voice in government formation,
confident in the belief that such a voice would not
upset the crystallized structure of the bourgeois
State.
In our country, by contrast, the coming to power of
the bourgeoisie and the introduction of modern democratic
structures were contemporaneous phenomena. Since the
consolidation of bourgeois rule necessarily entails
a process of political ''marginalization'' of the people
(even when the degree of this ''marginalization'' is
subsequently somewhat lessened through the introduction
of democratic structures within a consolidated bourgeois
order), in countries like ours such consolidation
requires an attenuation or a ''rolling back'' of democracy,
a reduction in the rights of the people compared to
what they already enjoy, in short a counter-revolution
against the prevailing democratic institutions.
There are two further considerations that buttress
the tendency towards such a counter-revolution. The
first is the desire of the feudal and semi-feudal
elements to retain their power, whose basis lies not
only in the fact of concentrated land ownership, but
also in the perpetuation of a highly unequal, hierarchical,
and socially oppressive caste order, the essence of
which is the belief that all men are not equal. Democracy
with universal adult franchise is fundamentally opposed
to this belief and hence undermines the logic of the
caste-system. The feudal and semi-feudal elements
therefore have waged a relentless struggle for subverting
democratic institutions from the very beginning, the
most obvious manifestation of which is the forcible
prevention of ''lower castes'' from exercising their
right to vote. Any attenuation of democracy, any political
disempowerment of the people, therefore receives their
enthusiastic support.
There is a second factor working towards this end,
and that is the so-called process of ''globalization''.
The anti-colonial struggle, though led by the bourgeoisie,
had drawn into its fold the urban and rural workers
and the peasant masses. Indeed the very introduction
of modern democratic institutions including universal
adult franchise was not a ''gift'' of the bourgeoisie
to the people; much less was it a ''gift'' of some enlightened
individual leaders like Jawaharlal Nehru, to the people,
as is often made out. It was in fact the realization
of an implicit social contract (which was even given
a certain explicit form in the Karachi Congress Resolution
in 1931) on the basis of which the people participated
in the freedom struggle in such large numbers.
For some time after independence, the bourgeoisie,
even while enriching itself at the expense of the
people through a process of ''primary accumulation
of capital'', not only expressed its adherence to this
implicit social contract, but even implemented that
part of it which visualized a relatively autonomous
process of ''national'' development. True, even this
implementation was marked by vacillations. And the
fact that it was only partial implementation at best,
since other parts of the programme such as breaking
land concentration were never carried out, gave rise
to contradictions that were to prove insurmountable
for this development trajectory itself. Nonetheless
the immediate post-independence period, or the period
of dirigiste development, was marked by a degree of
autonomy from imperialism. But the contradictions
of this development path, which were just referred
to, in the context of significant changes in the international
conjuncture, entailing inter alia, the emergence to
a position of dominance of international finance capital
in a new incarnation, pushed the bourgeoisie into
adopting the neo-liberal policies advocated by the
IMF and the World Bank, the chief agencies working
on behalf of this international finance capital. And
the adoption of neo-liberal policies, which invariably
bring great suffering to the masses, in the name of
accepting an inevitable ''globalization'', meant a betrayal
of the implicit social contract of the freedom struggle,
and hence became incompatible with the level of democratic
rights that the people had enjoyed.
In short, the adoption of neo-liberal policies, symptomatic
of the bourgeoisie's adopting a collaborationist role
vis-à-vis imperialism and an explicitly hostile
role vis-à-vis the people, in a clear reversal
of the situation prevailing during the years of anti-colonial
struggle and post-colonial ''national'' development,
necessitate even more urgently than before an attenuation
of the democratic rights of the people. The interests
of international finance capital being opposed to
those of the people, the adoption of policies in favour
of the former is incompatible with the continuation,
with the same vigour as before, of the democratic
interventions by the people. Hence attempts at an
attenuation of democracy, which have always been there,
gather a new momentum.
The legislative organ, however, has intrinsic limitations
in spearheading such attempts, because this organ
is precisely where the strength of the people is reflected.
Since the legislature is elected and therefore, notwithstanding
all the limitations of our polity, accountable to
the people in a certain sense, it is not easy for
it to take any initiative to curb the people's rights.
Consequently, it is typically one of the other organs
of the State which takes the initiative in the matter.
The executive has done so in the past, without much
success. The Emergency of 1975-77 was one such effort
on the part of the executive. The NDA government's
plans of ''reviewing'' the Constitution with a view
to amending it is another such attempt. A whole lot
of suggestions, such as a Presidential form of government,
a fixed term for the legislature, a denial of the
legislators' right to move a ''no-confidence'' motion
unless an alternative government is already available,
a denial of representation to a political Party unless
it gets a minimum percentage of the total votes in
the country, all of which emanated during NDA rule,
would have certainly worked towards attenuating the
people's democratic rights. But all these attempts
failed. And now, after the failure of all these attempts,
it is apparently the turn of the judiciary to take
the lead in restricting the democratic space enjoyed
by the people.
II
The
judiciary's doing so however must necessarily be reflected
not just in the fact of its delivering a series of
verdicts which restrict the democratic space of the
people; it must, logically, arrogate to itself a superior
role compared to the other organs of the State. Indeed
implicit in its role as the leading organ in restricting
the democratic space of the people is the assumption
that it is the leading organ of the State. And this
is precisely what has been happening of late. Not
only has the judiciary systematically handed down
a series of verdicts which impinge adversely on the
democratic rights of the people and which are informed
by a social philosophy that is nothing more than the
typical bourgeois prejudices that are so commonly
observable in any average upper middle class person
in the country (the ''yuppie'' if you like); but, through
the voice of none other than the Chief Justice of
the Supreme Court himself, it has also explicitly
claimed for itself a constitutional status that is
superior to that of the other organs of the State.
And not content with this, it has even started making
openly ideological appeals to build up a social support
base for its increasing assertiveness. Let us look
at each of these seriatim.
There are at least five clearly discernible tendencies
which emerge when we look at a number of verdicts
handed down by the higher courts, including the Supreme
Court, in the last few years. The first is a tendency
to restrict the rights of the working people. The
Supreme Court's verdict in the case of the Tamilnadu
government employees, denying their right to go on
strike, the Kerala High Court's judgment against bandhs,
and the Calcutta High Court's ban on public demonstrations
(and that too because one judge's car got held up
owing to a demonstration) are examples of such encroachments.
These no doubt are particular verdicts, but unless
the particularity of the particular is emphasized,
what is decreed in one case is open for extension
to all cases. In short, the Kerala High Court's order,
or the Calcutta High Court's order, or the Supreme
Court's order in the case of government employees,
is open for more general replication.
Of course, a bandh, a strike, or a demonstration do
cause inconvenience for a large number of people,
but that is precisely why they are effective weapons
in the hands of workers. They never adopt such measures
lightly. To believe otherwise is precisely to fall
prey to upper class prejudices, as the judiciary has
been doing. And if the avoidance of inconvenience
to others were the over-riding objective, then a directive
to the government to avoid situations that call forth
such actions would not have been inapposite. No such
directive however accompanied the verdicts. Instead,
the right to strike enjoyed by the working class all
over the world, and obtained after long years of struggle;
the right to call bandhs which were a part of India's
freedom struggle and cannot suddenly be termed illegitimate;
and the right to hold demonstrations which is an accepted
part of any democratic society, and widely used all
over the world, including recently in the metropolitan
centers against the invasion of Iraq by their own
governments; were all taken away at one stroke of
a whimsical pen.
In the same category incidentally is the Supreme Court's
sanction for the dismissal of an employee for misbehaving
with the management. Of course misbehaviour should
not be condoned, but as any Primary School teacher
knows, what appears as misbehaviour on the part of
one could well have been provoked by the actions of
the other, so that deciding culpability is not easy.
To give management carte blanche under these circumstances
is tantamount to encroaching on the rights of the
workers, to abetting the victimization of workers
by management.
The second tendency is to ''roll back'' affirmative
action. The most obvious example is the recent verdict
that ''reservations'' in admissions need not be adhered
to in the case of educational institutions which receive
no funding from the State. This verdict not only is
against affirmative action but also arbitrarily restricts
the domain of State intervention. It is equivalent
to saying that the State has no right to levy income
taxes on employees outside the public sector. The
proposition that the State is an overarching entity
whose domain of intervention covers the entire universe
of civil society and is not confined to only that
part which is financed by it, is accepted in every
modern society; and yet the Supreme Court has chosen
to jettison it for reasons having little to do with
any serious social philosophy and with consequences
that are far-reaching and dangerous.
