One of the few truisms on which people across the political spectrum tend to agree till now is that the Indian polity is democratic in nature. Shortcomings in realizing its principles to the fullest do not impede attempts by all parties at invoking the word (and its inherent representative connotation) and underlining it to legitimize their presence and performance in the political framework. The laws thus passed are manifestations of policy formulations of the party in power, reflective, to varying degrees, of the ideological principles of the party, and sought to be legitimized on the ground of electoral backing which brought it in office. Besides procedural requirements, what gives the democratic cloak to these are practices of consultation, deliberation, and possibly, consensus. Now, what happens when this part is discarded, with popular mandate being harped as the main factor giving the tick mark to all laws? How does it explain issues of intent, consent, the extent of legitimacy? Finally, does it augur well for the democratic health of our country?
In countries that are totalitarian, or even authoritarian, laws stem not from popular demand or requirement, but as decrees or commands from the top. Opposition to it or questions regarding its benefits are immaterial- the very fact that it has been passed and enforced by the government precludes them. The key idea implicit in this is the presupposition that the government knows what is required for the state and laws passed by it subsequently embody that knowledge and the intent to fulfil it. As expected, this runs against the democratic element of laws as questions of whether the government has taken into account the positive effect of the law on the country or if at all it intends a positive effect remains unsatisfactorily answered and almost entirely dependant on the power holders. On the contrary, legislation in democracies like ours is marked( or at least expected to be marked) by extensive consultation with the stakeholders and an explicit and discernible positive effect on the targeted section of the populace. Even if the benefits are not obvious, the onus lies on the government to explain it and convince us. Since reconciliation of differing and often competing interests is a central tenet of democratic governance, opposition from a particular segment, once the law is proposed, is either nullified or diluted through rigorous consultation or effecting alterations through a feedback or suggestion mechanism. As a result, by the time laws are finally passed, a wide acceptance permeates across party lines and sections of the masses notwithstanding the initial degree of support to the laws.
However, if one observes the abrogation of Article 370 or the recent passage of the farm laws, they fly in the face of such governmental proprieties. In the former case, the people were kept in complete darkness right until the 5th of August, 2019 when the central government removed the special status of the state, split it into two, and demoted the statehood to the status of a union territory- all in one fell swoop. The Parliament was reduced to a mere rubber stamp to pass the J&K Reorganisation Bill without adequate holistic discussion by its members or examination by a standing committee. For all the claims about the temporary nature of the special arrangement or the purported dire need for development which will be spurred by these moves, steamrolling such a monumental law through Parliament, arresting the major leaders of the region, and a clampdown on communication leaves one to wonder whether J&K is perceived a body of people who deserve to be given a hearing on its views or as a piece of land. The farm laws too were bereft of adequate consultation, either with farmers or with the states, and hastily passed through both Houses, at a time the country was reeling under a pandemic. Both call into question the intent of the government and underlines the acute dearth of popular consent surrounding these steps.
Now comes the second facet, i.e. the peoples’ perception of these and their response once they have got legislative approval and presidential assent. Should they resign themselves as a fait accompli or rise up in protest? If they protest, what form should it take? Above all, to what extent, if at all, they are obliged to abide by what has been thrust upon them? Central to all is the fundamental ideas of obligation and legitimacy, which are tied to each other. The people may have voted for the incumbent government in the general elections, or voted against it, or may not have exercised their right to vote at all. In all such cases, it’s unfair to aver that they should unfailingly accept the laws as no contract to obey all subsequent laws to be issued by the incoming government is embedded in the election process, though some claim that it’s implicitly ingrained in it. Even fulsome support to the ruling party or alignment with its ideology does not automatically entail either a foreknowledge of the laws to be passed by the government or support thereof. Thus, for all theoretical and practical purposes, a democracy always must leave open a channel of opposition. In Kashmir, strong restrictions on communication and movement have had effectively sealed the outlet of possible protests. One can argue that the recent DDC elections did give the people to express dissatisfaction. However, even then, it’s limited to electoral support to parties which oppose the abrogation and demand its reversal- success on that count cannot be predicted. In the case of the farm laws, the opposition has been much more concrete, organized, and arguably, effective. As thousands of farmers came to gather on the borders around Delhi amid a hostile governmental reception, several rounds of talks have taken place only to prolong the impasse and embolden the farmers. While the ministers have signalled a climbdown from their initial intransigence by conceding some of the demands or even staying them for a year and a half, convincing the farming community about the need to reform the agricultural sector and assuaging their apprehensions before taking the ordinance route or tabling them in Parliament would have certainly avoided this deadlock amidst the biting cold of the capital city. What is interesting to note is the undemocratic nature of legislative passage, as well as a tough response from the government, has not elicited either an adequate pan-nation response against it or even sufficient mass consciousness- something attributable to the successful peddling of a narrative which harps on the supposed national or larger interests these would serve, thereby superseding and sidelining these issues. Thus, the stifling of the freedom of Kashmiris, the arduous sit-in at Shaheen Bag by aged women against CAA and a year later, a similar protest by farmers extending indefinitely against water cannons and adverse weather all have been largely viewed as the specific plight of the those at the receiving end and not one which ought to generate empathy cutting across regional and situational differences.
‘It is not wisdom but Authority that makes a law’, goes a saying by Thomas Hobbes and one cannot help find such drift in contemporary Indian legislation and concomitant enforcement. While the Indian state and its constitutional premise are undoubtedly at sharp variance with the absolutist nature of the Hobbesian state, such streaks in the governance give cause for concern and above all, necessitates a caution against such derailments from the democratic track.
By Ritabrata Chakraborty ritabrata101@gmail.com
The featured image has been borrowed from Press Trust of India.