‘The prime minister is an economist, he does not know law.’

Subramaniam Swamy

Member of Parliament, India

22 November 2010

 

YEARNING for poetic justice in this life, or in God’s hands in an afterlife, is the way most of us live. Woody Allen famously said: ‘While it may be well settled there is indeed an afterlife, the question is how far it is from the local metro station and till what time it is open at night.’ It might seem absurd to look for a time and place for anything if it is configured in a transcendental manner, yet it has to be acknowledged that a majority of people in the world engage in such religious pursuits. Nor are most of them despondent about finding justice in the here and now as well. They believe that there is some kind of connection between the phenomenal and spiritual worlds that we experience in this life itself. As a famous commentator on Kant put it, ‘We all have our metaphysical moments.’¹

Religious and moral sentiments remain as important for a sense of justice as public reasoning. In West Bengal, for instance, where communist rule with its ‘scientific socialism’ (public reasoning of sorts) continued through thirty odd years, Mother Teresa carried on in parallel to care for abandoned children and inspired a new generation. Though the volunteers of free India had believed in idealist philosophies and natural law, those of us who came of age in independent India were skeptical about them. Religion seemed to be only the ‘heart of a heartless world’; people sought justice in an afterlife only because of the oppression that haunted them in this one. That also appeared to explain why it served as a powerful instrument of manipulation of the oppressed.

Easily persuaded by socialist strains of materialism in the face of gross inequality and abject poverty that we witnessed around us, we hoped to mount the struggle for social justice on a materialist negation of not just religious beliefs and practices, but also of the idealism of the Enlightenment or of Bhakti and Sufi poetry closer home. Political economy weighed more with us than natural law. Reflecting on why this happened might help in thinking about why the notion of governance, as distinct from government, remained dormant.

We all know the Enlightenment spawned many revolutions to establish bourgeois states and society across America and Europe in the 18th century. Several variants of the social contract argued by Hobbes, Rousseau and Kant as well as Locke dominated the discourse on notions of sovereignty. In the revolutionary war for American Independence, triggered by British Parliament’s imposition of increased taxes to pay for the public debt of UK and later fanned by other European powers, all four variants of the notion of a social contract were invoked to arrive at the Declaration of American Independence. In the rest of the British colonies, where national movements began much later and circumstances were very different, Locke’s Two Treatises on Government assumed relatively greater relevance.

 

The dilemma posed by the distinction between duty to society and duty to government, a distinction that permits an argument for resistance without anarchy, was resolved by Locke to establish the majority rule. When the current government dissolves, people remain obligated to society acting through majority rule. Locke’s views are also important because his philosophy served as the basis for all the ideas of English political economy. His concept of how to arrive at enclosures’ proprietorship played an important role in the chequered history of the Poor Laws for paupers in UK. They remain critical to discussions on the commons to this day.

The labour theory of value which Locke had stated in moral terms, was further advanced in political economy by Adam Smith in his Wealth of Nations. He argued it was the productivity of labour that was the source of the wealth of a nation, not gold bullion or silver. Parallel channels of socialist thought were represented in the First Workingmen’s International where, in Emile Zola’s description in Germinal, ‘Dr. Marx was messing things up.’ Karl Marx’s Volume IV of Capital (which, incidentally, he wrote first) titled Theories of Surplus Value contains his critique of the idea of any ‘common’ wealth (advanced in different versions by Hobbes and Locke) from the point of view of labour that produced surplus value which was appropriated by the bourgeoisie in the capitalist world.

 

This critical perspective is what captured the imagination of Europe in the mid-19th century where the ‘spectre of communism’ came to represent the best aspirations of the working class to better conditions of life. Over the next hundred years, struggles against imperialism and colonialism flowed along many channels of thought in the colonies across the world. In India, partly because the champions of anti-Company rule were people like James Fox and Edmund Burke in the British Parliament – parliamentarians who were fierce defenders of the British values of ‘liberty, security and property’ (rather than the French values of ‘liberty, equality and fraternity’) – and partly due to the fact that a number of leaders of the Indian national movement were lawyers, there was an extraordinary reliance on natural law to petition/condemn British Rule.

Gandhi’s political intervention was aimed at lifting the pall of fear – fear of landlords, revenue officials, moneylenders, contractors, police – from the minds of the peasants. The advent of Gandhi – a natural law philosopher of his own kind who had greater faith in duty-oriented life in local communities than in rights-based parliamentary democracy – contrasted somewhat with the political-economic orientation of the leaders of the national movements in Russia and China where the weak ineffectuality of the oppressors in the face of armed struggle was demonstrated.

However, the moment India became independent, the question of what it held in store for the highly impoverished peasants whom Gandhi had brought into the national movement (and not just industrial workers) came to the fore as it had in Russia after the Bolshevik Revolution. Political economy assumed an importance that went beyond Dadabhai Naoroji and the drain theorists to structural issues described as the ‘semi-feudal, semi-colonial’ nature of society and the state. Land reforms were tried but met with mixed success. At one end of the spectrum across the landscape was the early success of land reforms in Jammu and Kashmir led by Sheikh Abdullah and at the other were the Adivasis whose rights, even to occupancy of forests, remained unacknowledged up until 2007!

 

The entire discourse then shifted on to finding economic solutions to problems with acute political dimensions. In the face of runaway inflation and a stagnating economy (stagflation) by the mid-sixties, ‘garibi hatao’ became the state’s slogan in India. Banks were nationalized, public sector proliferated, compulsory family planning was introduced and ‘poverty alleviation’ programmes were launched to maintain the power of administrators and channelize huge slush funds for managing the needs of election campaigns.

The unpopularity of the Executive which imposed an internal Emergency in 1975 was an opportune moment for the Judiciary to acquire the powers of judicial review which the Constitution had not invested it with. Indira Gandhi came back to power after a brief interregnum and went further, to remove the right to private property from the list of fundamental rights by the 44th Amendment in 1978. In 1979, the Collectors were made Spenders, governed not by statutory powers or even budgetary control of the state governments but simply a chain of administrative orders and ‘empowered’ with the freedom and ‘flexibility’ that the society form of government instrumentalities (District Rural Development Authority) provided; in short, invested with all the means of corruption they needed.

 

At this juncture – remembered as the post-Emergency period – the courts tried to get closer to the people by liberalizing the rules of locus standi and welcoming public interest litigation on questions of human rights, social justice and the environment. Even a letter on a postcard addressed to the Supreme Court could serve as an affidavit. Treading the thin ground between interpreting law and intervening in politics, judgements based on PILs have proved quite fruitful and helped justice become a far more open and participatory affair than ordained in 1950.

A breath of fresh air was also introduced by economic reforms and globalization since 1991, joined by the power of interactive information technologies, which generated a democratic resurgence and renewed interest in social legislation. Rights-based campaigns found some resonance with the political parties of the Left who joined a coalition to help form government. Human rights, which are by themselves ethical in nature, have been converted into legal rights in this scenario since 2005 – rights to information, employment, of forest dwellers to dwell in forests, free and compulsory basic education and food. In particular, the right to information ushered in an era where the locus standi of any individual citizen (not just groups of people or any organ of state) to ask for information was established.

Amartya Sen’s influence in arguing the need for this conversion on the strength of Hart’s view of law as a coercive rule, and his support for social campaigns for the same, is well recognized. When Sen’s monumental work The Idea of Justice was published, many of us read the book with great enthusiasm about an idea which might not only correct our narrow economic perspectives on social justice, but also help us relate to traditions of both natural law philosophers and Indian jurisprudence.

 

The difference drawn in Indian intellectual history between niti (organizational propriety and behavioural correctness) and nyaya (lives that people are actually able to lead due to what emerges from acts of justice) is deployed extremely well by Sen to chart his critique of John Rawls’ A Theory of Justice where the concern for niti is clearly dominant. Sen also presents the dialogue between Krishna and Arjuna on the battle-field as narrated in the Bhagvadgita, where Arjuna is concerned about the comprehensive consequences of his actions and Krishna advises him to do his duty as ordained, regardless of consequences. Sen is drawn to Arjuna’s sensitivity to the consequences. He argues, nevertheless, that different persons can legitimately value a state of affairs differently from their respective vantage points, which situates the problem of justice in pluralism and the problematic of social choice. The disappointing part is his tying all the Enlightenment philosophers in one bundle and dismissing them summarily.

The burden of Sen’s argument is that justice is a function of social choice rather than any set of principles or institutions. It is unclear whether ‘social choice’ in his usage is anything more than an electoral choice because he is laudatory about electoral democracies. It is interesting that while essaying his idea, he assails not only John Rawls’s A Theory of Justice, but the entire corpus of literature on the idea of justice being based on a prior social contract a la Kant, Hobbes, Locke and Rousseau. The notion of ‘social choice’ is, therefore, not the idea that the social contract is periodically in the making or re-making, somewhat like Rousseau’s notion of the assertions of a general will, but more a suggestion to the effect that there are no bounding structures for justice at all – justice is a vexed issue and is up for grabs, to be guided by ‘public reasoning’. This might echo the sorry state of representative government in India today or amuse a Barkha Dutt, but it leaves us cold in the wilderness of elegant but jumbled thoughts.

 

Sen’s idea would be perfectly acceptable if he were to say that no set of principles or institutions can be cast in an iron mould as sovereign or supreme. Picking themselves up from the rigours of the Reformation, people in UK may have had a reason to surrender their interests and powers to a sovereign for the sake of peace, but living in the 21st century, we need not be persuaded into any such surrender. We would be happy to sing along with him to contest the mantle of sovereignty that organs of government have started flaunting to repel all the efforts of individual citizens (or of different ‘publics’ constituted by civil society or the media) demanding justice. But then, this idea of contestation is precisely what the Enlightenment stood for. If the Enlightenment had any message, it was not that of surrender to sovereignty even as an idea in our minds or to be supplicants petitioning sovereignty, but that we should dare to speak out. The only contract necessary is that we feel obliged to explain our speech and actions to each other. The failure to distinguish the former, contractarianism of Hobbes, from the latter, contractualism of Kant, is fatal to Sen’s idea.²

 

In the undiscerning stringing together of Kant, Hobbes, Rousseau and Locke at several places in Sen’s book, one wonders why Locke is mentioned at all, since nothing is ever said about anything Locke wrote. With his perspective of judging societies rather than persons or situations, Sen leans towards grounding the idea more on public reasoning than on moral sentiments. There are, of course, courtesies to Adam Smith’s Theory of Moral Sentiments strewn throughout Sen’s book (at more than 45 places), but what he takes from Smith is not the fact of a reflective device at work in all of us but only the abstract social concern for going beyond parochialism of values by relying on the ‘fair and impartial spectator’ to broaden our discussion on priorities and values. Devoid of the mooring in moral reflection, the concern for broadening ‘reasoned’ discussion grows into an apologia for global institutional influences at the cost of sensitivity to the imaginative power of local forms of law that not just influence behaviour but also construe them. The dominant role for global influences that Sen urges, overlooks the fact that there is an inventive, or discovery, or adaptive aspect to changes in law which are invariably locally generated in the life-worlds of people.

 

For instance, Mahatma Gandhi’s satyagraha during India’s national movement was pegged on due regard for the views of a ‘fair and impartial spectator.’ Arrested in 1922 and charged with sedition for writing three articles in Young India, at his trial in Ahmedabad, Gandhi read out a stirring indictment of the government established by law in British India. He prefaced the statement with:

‘Non-violence is the first article of my faith. It is the last article of my faith… I know that my people have sometimes gone mad. I am deeply sorry for it… I am here, therefore, to invite and submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen. The only course open to you, Mr. Judge, is either to resign your post or inflict on me the severest penalty if you believe that the system and law you are assisting to administer is good for the people. I do not expect that kind of conversion. But by the time I have finished with my statement you will, perhaps, have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.’

He was, of course, sentenced to six years in prison, and thanked the judge for his courtesies. Non-violence, with its moral creed of self-suffering, was established locally by a person in flesh and blood.

With equal righteous indignation, precisely the opposite was argued by Maximilien Robespierre, the chief strategist and philosopher of the French Revolution. The love of good and the country’s wants, rather than any precise theory or rules of conduct, had guided the circumstances of both situations – in India of 1922 as well as in France of February 1794. Taking stock of where the French had arrived, Robespierre defined democracy and defended the war of liberty:

‘Democracy is that in which the people, guided by laws that are its own work, executes for itself all that it can well do, and, by its deputies, all that it cannot do itself… But to found and consolidate democracy, we must first end the war of liberty against tyranny, and traverse the storm of the Revolution… Terror is nothing else than justice, prompt, secure and inflexible! It is therefore an emanation of virtue… The government of a revolution is the despotism of liberty against tyranny… Is force, then, only made to protect crime? Is it not also made to strike those haughty heads which the lightening has doomed?’³

By July the same year, the Terror was being condemned and his influence evaporating, with people asking for jobs and land. Ironically, he moved a law by which the Committee of Public Safety could order the trial of deputies with no proof of guilt required. He was humanely guillotined on 28 July 1794.⁴

 

Both remain equally important. Justice is problematic not only because it has to be sought (Gandhi), but equally, because it has to be done (Robespierre). Crime calls for punishment in the sense that it makes appropriate certain emotions (guilt or resentment) which are satisfied by or expressed in punishment. The problem is that punishment is ‘overdetermined by utilities of every sort’ and survives now under this, now under that interpretation of its purposes, because the desire to punish (and thereby subordinate, coerce, transform) other persons is so deeply rooted in human nature.⁵ Principles of law to introduce objectivity are therefore extremely important, though not immutable. The diversity in the laws of evidence adopted by different countries and even different states within the US should allay any fears that justice can be hamstrung by any one definitive view.

 

Over the last sixty years, the concept of punishment has drifted away from reform and rehabilitation in favour of retribution and imprisonment. Globally, the practice of punishment nowadays rests on a plurality of values, not on any one value to the exclusion of all others. Punishment is defined in recent times as the authorized imposition of deprivations – of freedom or privacy or possessions to which she/he has a right – because the person has been found guilty of some criminal violation, typically involving injury to the innocent. While the definition seems innocuous enough, the lament in India today is about the impunity with which persons serving in government and those connected to them can escape punishment. Moreover, every actual sentencing in cases that do go to courts, though few and far between, is plagued by the debate about whether the punishment is too little or too much. The movement for social audit of development programmes of government like MGNREGA, for instance, has come up against the problem that there is no institutional mechanism to punish those palpably found, in the course of social audit, to be guilty of malpractices/malfeasance. The close tie-up between the Department of Rural Development and the social audit setup in Andhra Pradesh could possibly be emulated by other states to establish judicial mechanisms governed by the principle of supervision by mass gatherings. The importance of public assembly is written across the entire history of democratic governance.

The mass gathering or assembly can well gel around TV shows, as we are witnessing in connection with the recent rash of reports on corruption cases. In every corruption or criminal scam that surfaces, the efforts of the state are to immediately find ways to control the damage to its ‘image’ (read usurped sense of sovereignty) by inscribing the process of justice with procedures typical of the organs of state. The first act of the state in India is to take investigation out of the public domain and subject the accused, not to public prosecution but to the power of a mafiosi, of being reduced to a puppet-on-a-string with the findings of investigating agencies dangling over their heads.

 

The cacophonic assurances about the adequacy of ‘checks and balances’ between organs of state in the constitutional frame, ring hollow. The unethical networking between functionaries in the different organs of state and industrial houses is also clearly there for all to see. The assurance of ‘checks and balances’ distorts the meaning of democracy; it reduces it to solely a form of government rather than ‘a status of society where people do what they can with laws they give unto themselves and leave to deputies what they cannot.’ The surety of punishment by means of open public prosecution is essential for democracy.

 

Footnotes:

1. S. Korner, Kant, Pelican original, 1955.

2. See page 6 of Sen’s book, The Idea of Justice, OUP, 2009.

3. Brian MacArthur (ed), Historic Speeches. Penguin, 1995, which reproduces Maximilien Robespierre, ‘Terror is nothing else than justice’, 1794 at pages 182-184.

4. See the history of the invention of the guillotine in wikipedia.

5. Friedrich Nietzsche, 1887, On the Genealogy of Morals (tr. Walter Kaufmann). Vintage, New York, 1969.