Comparative frames GRANVILLE AUSTIN

www.india-seminar.org Issue No. 521

COMPARING and contrasting the public life of the two countries under their constitutions turns up characteristics that cheer and depress me. For I am at once an American and a devotee of India; each nation has achieved so much while falling short of its constitutional goals. The editors at Seminar have kindly given me leave to turn over all this in my own mind. Readers should forgive them, but not necessarily me, for what follows. All democracies muddle through. Human character and the events that confront societies are so various and unpredictable that human beings have limited capacity to control or to order them. Constitutions may establish frameworks for governance and the rules of the political game, they may channel human action, but they cannot reform individual character and conduct. Above all, constitutions cannot dictate the geographical and environmental conditions with which their societies have to cope although the Indian Constitution contains detailed provisions that to a degree address these conditions. When comparing and contrasting the constitutional careers of India and the United States, the conditions at the onset of their national lives are especially important. The United States started its national life with innumerable advantages. Its small population had the stage of an empty continent to play upon, rich resources, time to develop largely beyond the worlds attention and the pressure of modern times, a philosophy of individual freedom and initiative that imposed few limits on personal achievement, and a rich cultural inheritance from Europe, something not free from disadvantages.

Conversely, India has been forced to build its democracy under the glare of international scrutiny and among nations highly competitive when not actually at war with each other (hot or cold).

Its peoples were compressed on limited arable land, even in 1950 with a population of 250 million. Natural resources were illdistributed, especially water whereas the United States had enough territory to bypass its deserts and driest areas. Pressures from Americas increasing population could be relieved through the open frontier; India had no such luxury. Indias society had, and in general still has, a hierarchical society inimical to individual initiative and freedom, although the societys top one-third is outgrowing these restraints. Both continent-sized countries have had to unify themselves into nations. The United States, as we all know, started with 13 colonies often at odds with one another. The highly diverse regions that over time joined the Union included states that permitted slave-holding and those that did not. Fought primarily over slavery, the Civil War threatened to sunder the country. (The Union became complete comparatively recently: Arizona joined in 1914, and Alaska and Hawaii in 1949.) States rights in many forms continue to be contentious. India in 1947 faced double trouble. Its equivalent of the American Civil War came when Partition actually divided the subcontinent into Pakistan and India. Indias leaders, particularly during the first two decades, had to cement the geographical proximity of the countrys constituent units into psychological, political and economic unity. This was a critical matter during the periods when Shyama Prasad Mookherji was calling for the annulment of Partition, when Master Tara Singh was advocating a separate Punjab, when the Communists were rebelling in Telengana, when the Tamils were dreaming of cultural nationhood for Dravidanad, and when Jammu and Kashmirs status within India was being questioned.

Other dangers to national unity and integrity may have been overdrawn in the leaders minds, as I have argued in Working a Democratic Constitution The Indian Experience. Prime Minister Nehru and many other leaders in the Congress and other parties feared that the isms of linguism, regionalism, provincialism and

communalism (a blanket term in which they included the other isms, not only Hindu-Muslim relations) impeded both the achievement of national unity and social-economic progress. Worse, they feared the famous fissiparous tendencies might tear the country apart. Happily, the leaders have been proven wrong. Indias innumerable horizontally and vertically divided communities have learned to cohabit successfully despite often competing political, economic and cultural interests. A sense of Indianness among citizens has developed, and today the country is knit politically and economically. Yet these fears when they were strong helped to encourage New Delhis predilection for strongly centralised government. When the fissiparous tendencies had paled to insignificance, politicians resurrected them to justify their arrogance of power. Save for the Civil War, and early skirmishes like the Whisky Rebellion, no threat to national unity has thus concerned Washington or state capitals. Quite the reverse. The United States bought Louisiana from France, Alaska from Russia, and in battle won Texas from Mexico. Especially interesting to me is the manner in which the diversities within Indian and American societies have contributed to their richness. This is evident in diversities contributions to national cultures in the arts, music, literature, language, group histories, and in special commercial and managerial talents. Diversities also present the countries national and constituent governments with a host of difficulties. Equity issues arising from social and economic conditions beset each country. The lower rungs in both societies, the poor, those racially and linguistically distinct, are ignored or discriminated against by the upper rungs of society, who have more money and influence with government, and who are satisfied with their lot and wish it left undisturbed by concern for the wellbeing of others.

In the United States, lack of equitableness harms AfricanAmericans, Hispanics, especially migrant workers, American Indians and European-Americans with little money apart from the gender discrimination within these categories. For example, for African-

Americans the right to vote has been a reality only for some 40 years, although it was granted to them by the fifteenth constitutional amendment in 1870. The government of California, with a large Hispanic population, presently is considering legislation that would make English the states language a move that is both oppressive and integrationist. Migrant agricultural workers are exploited shamelessly. Forty million Americans, largely in these categories, lack health insurance and face corresponding risks to their health and job security. Many eat poorly. They have inferior access to justice, compared to others, and to equitable treatment in the courts despite the existence of court-provided public defenders, the considerable number of attorneys doing pro bono work, and government and private legal aid groups. Government financial support to these has several times been reduced on political grounds. For the richest country in the world to so maltreat elements of its society weakens its pretentions to greatness.

Readers of Seminar will be well acquainted with conditions in India. Neglect, exploitation and oppression of the lower castes/classes by the upper are a shame upon the social revolutionary goals placed in the Constitution by the founding fathers and mothers. But oppression in India should be understood to derive from the history of the caste system. Americans have no such heritage. Excepting slavery, American society grew from the immigration of political and religious free thinkers and seekers after a tolerable livelihood. Class they brought with them, and often a narrowness of thought, but not religion-sanctioned hierarchy except in Boston in the 17th century. In India, history may explain, but does not justify, the indifference of many citizens toward the condition of others. Most deplorable, perhaps, is the decline in the quality of the judiciary at all levels, bar and bench alike, which was to be the poors protector. The poor have difficulty gaining access to a court and then to a fair hearing; the rich encounter the money and wiles of the richer.

Judicial processes, from the subordinate courts to the Supreme Court, impede as often as they favour justice. Civil liberty is a right the poor in India seldom enjoy despite its having been enshrined in the Constitution. First, as has long been said, the hungry man is not free. Next, the better off, in general, think it their privilege to deny liberty to those below them in society if it suits their interests to do so. This sort of repression/oppression economic, social, and political challenges the democratic institutions of the Constitution as does nothing else. Under the Constitution there are various laws including the Indian Penal Code and the Criminal Procedure Code. If enforced, they would go a great distance to protecting citizen liberty. I have wondered for some years if libertys protection isnt best to be found in constitutional challenges under Article 14 of the Fundamental Rights. This is the right of equality and says that the state shall not deny any person equality before the law or the equal protection of the laws within India. To me, clearly, if a landlord oppresses a tenant or an agricultural labourer in a manner that violates existing law, the state (a fancy term for the government) owes the tenant protection under Article 14. If the tenant cannot get speedy redress from institutions of government, the judiciary for example, the government is denying him equality before the law, and the government, therefore, is at fault for not obeying the Constitution. One could put forward many similar examples.

Let us take this argument a step further. Landless labourers, whose grievances (genuine for the sake of this example) have gone unheeded, take their case to court. Their influence there is no match for the money and influence of their higher caste employers. Was not government responsible for denying the labourers equality before the law? Let us say that the upper caste villagers decide to teach the labourers a lesson, attack their village and devastate it, killing many. Where were the police when either party initiated violence? Did the police protect the labourers village? Did they arrest and charge the upper caste leaders, or did they side with them against the labourers? Did the executive in the state or at the

Centre order the police to give either party the protection of the law? If not, can we say that the Constitution is faring well or ill in India?

In the United States, too, there are many instances of failure to protect the rights of individuals or groups, especially minority groups or those espousing unpopular causes. Rarely in recent times has this taken the form of murderous attack by one group against another or the lynching of individuals. Yet even far less serious infringements of civil liberty in the United States are reprehensible because the branches of government are not functioning at a high standard. Conversely, the violations of personal liberty in India are so enormous and pervasive that Article 14 might be employed for taking cases directly to the Supreme Court under its original jurisdiction for enforcement of the fundamental right to equal protection of the law. Because protests or violence by lower castes/classes against higher castes/classes predictably will increase, recourse under this article may not be long in the future. I should add that senior advocate friends in New Delhi are not taken with my ideas about Article 14. From history and ideology Indians are predisposed toward a major government role in social-economic welfare programmes. Maibaap is an ingrained attitude, and governments have pursued socialist policies not all of them misguided, as critics aver. (I am impressed by K. Santhanams remark in the sixties that India needed not a socialism of production but a socialism of distribution.) Now governments are beginning to give rein to the entrepreneurial spirit that Nehru and early leaders so distrusted. Yet, it seems to me that the country appears to be reaching toward corporate capitalism without paying sufficient attention to its exploitational character in a still-feudal society.

Conversely, Americans still fear the perils of government involvement in social programmes, of socialised medicine, of the alleged corrupting effect of welfare on its human recipients, and of government curbs on private business initiative (of which, nevertheless, there are many). Americans preach capitalisms strength and fear these insidious threats to it. Yet whenever it suits them corporations seek government intervention to save them from bankruptcy or to prevent dangerous competition from a competitor. American capitalism is amusingly two-faced and, as readers of current newspapers know, is subject to immense dishonesty. I am continually perplexed by most Indians failure to connect the poor in some states abysmal quality of primary education to the progress of national development. Nehru promoted higher and technical education for the sake of national development. He erred in neglecting lower levels of schooling, but at least it was a policy choice. Today, the lack of attention to primary education among the bureaucrats in Delhi and some state capitals seems to be tinged with unconscious conspiracy: if we educate the natives theyll become restless. Who cares if they are kept down, in ignorance? It took me a decade to conclude this and, still, I am not sure. Yet no matter motive or lack of it, Indias unwillingness to refine the vast ore of talent among its people is doing vast damage to its economic and social development. Public education in the United States varies greatly in quality in general being worst in those urban areas lived in by the poor and minorities. Yet there is public outcry against this condition, and no end of proposed remedies administrative and curricular for it. Large sums of money are appropriated for reform, which comes slowly due to widespread confusion about how to raise educational standards. American social and economic development is held back by the existence of an ill-educated underclass. The gap in income between the members this underclass and those in the welleducated upper classes increases yearly.

In both countries the principal source of inaction or inadequate action directed at social-economic development is lack of political will. And the roots of this malaise are selfishness in regard to the wellbeing of others (a frequent element in human character), a greed for money and power, and the offspring of these two evils, corruption. Again, readers of Seminar need not be told of ministers and parliamentarians and lesser functionaries in India who believe they hold their positions by something akin to divine right and for the purpose of personal and in-group self-enrichment. That this form of corruption, practiced in India by large numbers of politicians and some civil servants, is an individualised phenomenon. It does not indicate, in my view, that the political system as a whole is infected by a solitary virus. Whereas in the United States, money, the mothers milk of politics contaminates the entire electoral system, which operates with enormous cash contributions to political parties and to legislators even in non-election years from wealthy individuals, labour unions and corporations. As a student-of-India friend of mine puts it, Indians buy their politicians retail, Americans buy theirs wholesale. Witness in India the tolerance of corruption, although even the poor seem to be beginning to vote against it, and in the United States the years it has taken to enact a campaign finance bill (the McCain-Feingold bill) and the energy currently being expended by lobbyists and self-serving members of the Congress to weaken it. Because members of Congress are elected by voters in the 50 states with the backing of the powerful state parties, Democrat and Republican, the United States is spared the hazards of slates for parliamentary elections being decided by the high commands of centralised parties. Nevertheless, money politics has done and is doing the gravest damage to representative government in both our countries. Corruption in business in both countries, as distinct from politics, I shall leave alone.

Decentralisation, bringing elected representatives closer to voters in the states, may produce improvements in both countries

for many of the conditions described above. President Richard Nixon in the seventies transferred many programme responsibilities to the states. He did this in large part to rid himself of competition from the Washington bureaucracy which he considered an enemy. His down-sizing of the federal government increased the size of state bureaucracies, which had to cope with new responsibilities. This was a change from Kennedy era attempts at social engineering by the federal government. Nixons policy and subsequent decentralisations have prodded many state governments into solving their own problems, into cooperation with other states on cross-border issues like resource utilisation and environment, and into improved performance in general. The performance of many state governments now outshines that of the central government. I suspect and hope that decentralisation in India including the mandating of village panchayats will bring similar results. Government will be healthier and more productive if several of the recommendations of the National Commission to Review the Working of the Constitution and of the Sarkaria Commission are adopted.

Particularly important to the National Commission, and in my personal view, is rescuing the Interstate Council from oblivion and giving it extensive powers. Government in India and national unity and integrity would be strengthened by this. Strong state participation in federal affairs strengthens, not weakens, the nation. The National Commission, following on from the Sarkaria Commission, also recommends selection of governors by criteria that could prevent their becoming puppets for New Delhi. These criteria go back to the founding of the Republic; yet rarely have they been applied. Until governments at the Centre gain faith in democratic governance and stop thinking that they can govern the states better than the states can govern themselves, there will be no reformed selection process for governors. The National Commissions recommendation 172 for improvements in Article 356 badly needs to be adopted as does its recommendation 184

that a panchayat should not be dissolved before it has had the opportunity to speak for itself. The militancy of certain religious groups within our two societies concerns me greatly. In both countries, to varying degrees, this has a nationalist dimension. Although in the United States ugly and a hazard to civil liberty, this militancy does not endanger the very fabric of the nation as it does in India. The ideology of the Sangh Parivar threatens India as a democratic, civil society and, therefore, its national unity and integrity. This ideology would destroy Indias good standing among world nations. Among the many possible examples, I could cite several recent ones. Bal Thackeray, according to press reports, has told his party workers that, Terrorists should be born among Hindus and they must form suicide squads ready to die for the cause of making this a Hindu Rashtra. The Bharatiya Janata Party is reported to think that his remarks cannot be interpreted as communal or inciting communal passions. What a fine example of Orwellian double-speak! K.S. Sudarshan told India Abroad, issue of October 18, that when Hindus become strong, Muslims will behave He blamed Godhra on pro-Pakistani elements. Chief Minister Jayalalitha, according to India Abroad the same issue, has had an ordinance promulgated making criminal conversions by force, allurements or fraudulent means. What is fraudulent? What is an allurement: rice to become Christian, absence of caste to become a Buddhist, a glorious hereafter with houris and flowing water to become Muslim? The potential for abuse is endless.

The torching of the train at Godhra was murder. The subsequent attacks on Muslims in Gujarat were murder. The killings stained India, and the Gujarat government was culpable through its failure to prevent them. Had these murders coincided with war between India and Pakistan, it seems probable that the Sangh Parivar forces in the state would have attacked Muslims, threatening to drive these Pakistanis, as it has called them, from the state. To make Hinduness a requirement for Indianness is the worst kind of

ugliness. First, it represents Hinduism as having a monolithic structure, whereas there are multiple local faiths devoted to shared deities. Also, it is a denial of history and Indias rich and varied culture. In short, it is nationalism gone mad.

In my view, the media is indirectly culpable for communal tensions. Its practice of referring to minorities instead of naming the minority community indicates a head-in-the-sand psychology. It implies, if we dont name Muslims, Dalits, whatever, we can ignore their pleas for equitable treatment in our society. The minority is denied identity and stature. The minoritys plight is being swept under the rug. I understand the argument that naming the minority may spark further violence. But rumours about communal violence kill more citizens than the truth. Communalism and communal incidents and violence have to be faced publicly and fought publicly. It is the medias job to assure that citizens do not forget this. In the United States, fortunately, we have not reached such a pass. Yet the narrow militant groups such as the evangelical, born again, and Bible-inerrancy Christians, dont like either Jews or Muslims. They call the latter dangerous and suspect all Americancitizen Muslims of having terrorist inclinations. Jerry Falwell, leader of the Christian Coalition, recently labelled the Prophet a terrorist. These groups and these views exert great influence in President Bushs Republican Party. Worse yet, underneath these views lies a distorted nationalism: the belief that the world should do as the United States wants, that the nations largely Christian character justifies American world hegemony. This idiocy already puts at risk the civil liberties of individuals the government chooses to suspect and, by extension, the rule of law in the country. Luckily, it does not yet endanger the nations peace or unity.

What is to be made of all this? First, in both India and the United States there exists a vibrant representative democracy with which to tackle the necessary tasks and reforms. The constituencies for democracy in India include elected and appointed officials, central and state, the media, the armed forces, and the general electorate with its multitude of interest groups, caste affiliations and so on. That each supports democracy for its own reasons is what makes democracy messy and better than other systems. The same may be said about the United States. Second, both societies understand the need to reform the working of their political systems and judiciaries and to extend equitable participation to those in their societies who so far have not enjoyed it. This is fortunate, for the political classes in both countries seem insufficiently aware of the grave danger to the credibility of representive government from their antics; from their failure to implement desirable social and economic reforms so similar in both countries; and from their insistent dependence on the money of the rich to win elections. I think it may fairly be said that India has no reason to be ashamed of its progress during its 50 years under the Constitution compared with the results gained in the United States during the past 200-plus years. This should not convey too rosy a picture. Both countries face difficult futures. The United States faces its tasks led by the Republican Partys radical right economic policies, its disinterest in social and political reform, and its born-again (Christian), resolutely unintellectual president (to quote a New York Times writer) a man who seems to believe preaching war against Iraq keeps him politically popular with voters. India faces its future with the current coalition government and, likely, future coalitions if this one leaves office. This seems to me to have advantages and disadvantages. The advantages have been stable government under an able prime minister. The presence in office in Delhi of so-called regional parties is evidence of solidifying national unity. The stresses within society, predictable as classes, castes, groups (including the Sangh Parivar) strive for a bigger piece of the national pie, will force coalition members to act in concert or be driven from office.

One disadvantage of coalitions, absent threats to their longevity, is slowness to action, particularly implementing socialeconomic programmes and reforming institutions. (Regrettably, single-party governments may not be models, witness the United States.) Yet social programmes of all sorts health and education among them are what India desperately needs. And reforms, especially in the civil service and the judiciary, are long overdue. A disadvantage in all representative political systems more so for coalitions because of their inherent fragility is summary rejection by the voters for non-performance. Indira Gandhis Congress and the Janata government in 1977 and 1980, respectively, suffered this. Political castles in the air crumbled for want of a foundation in performance. I shouldnt be surprised to witness this phenomenon in one of our countries sooner rather than later. top