August 2, 2010
By Barun Mitra. First published in Pragati, here.
Recently, the Supreme Court dismissed a public interest litigation (PIL) that questioned the validity of the 42nd amendment to the Indian Constitution, which among many other things, added the terms “socialist, secular” to qualify the democratic republic in the Preamble. The amendment dates back to 1976, to the dark days of Emergency. Later, the Representation of the People Act, the law governing political parties and elections, was further amended to include the section 29A, making it mandatory for all political parties in India to affirm to “socialism” if they were to be registered by the Election Commission of India for the purpose of participating in the electoral process
The courts always dismiss petitions before them once they pronounce a particular judgment. In this case, however, the Supreme Court acknowledged the “academic” question raised in the petition, but felt that since no political party has so far objected to it, there are perhaps no really aggrieved parties. So it allowed the petitioner to “withdraw” the petition. This withdrawal, however, means that the Court has not ruled against the issue, but considers it to be valid, and has kept it open for a future occasion.
The champions of individual freedom in economic and political spheres have long bemoaned the fact that there is no political platform in India that truly reflects their aspirations. No doubt there are liberals of different shades in almost all political parties, but still there are no avowedly liberal political parties.
Political parties are plentiful, with around 50 parties represented in the national parliament, and hundreds of parties operating at state and local levels. They represent a diverse range of interests: national, state, regional or local. They claim to represent varied sections of society based on national, ethnic, linguistic, religious, caste, and other identities. Yet, the political ideals on offer are very limited, as all parties are bound by socialism if they are to participate in electoral politics. Incidentally, independent candidates are not required to affirm to socialism, and if elected have only to take oath to uphold the Constitution. One of the reasons for this limited range of political options in the largest and the most vibrant democracy in the world, is the law that requires affirmation to socialism.
By legally restricting the political ideology to “socialism”, a couple of serious anomalies have been created. Having introduced “socialism” through the political and constitutional process, it is now being implied that “socialism” cannot be opposed and removed by the very same constitutional process. How can one mount a political campaign calling for the removal of “socialism” in the election law or in the Constitution, after having affirmed to “socialism” as a political ideal?
Secondly, what does socialism mean? The Constitution does not define it. The judges hearing the PIL commented that the meaning could vary. But could “socialism” include feudalism, imperialism, fascism, Nazism (national socialism), communism, capitalism, and everything else? If it does have such a wide range of meanings, why have it at all? The judiciary spends a lot of effort on interpreting the law by trying to precisely define the words in it. Justice would come to an end if words were given such variable meanings.
The Supreme Court has seen this as an “academic” exercise. But the impact of “socialism” in the Constitution and in the election law raises questions about possible violation of fundamental rights such as freedom of expression, freedom of association, and basic structure doctrine. If democracy is among the sacrosanct elements articulated in the judgments on basic structure, then what good is democracy where political discourse is limited exclusively to one political ideology?
Political ideologies matter in shaping public opinion and policies. The stated goal of all political action may be to improve general welfare; but, it is the ideology that provides the vision, and determines the direction and nature of the policies that are designed. Policy decisions whether to nationalise an industry or economic sector, or to privatise it, are shaped much more by political ideologies, than by hard core technical analysis of the merits of the proposed policy measures. In a democracy, people and leaders are not experts in all fields. Political ideologies come as a simple tool by which people decide on the general direction they think society ought to take, and the merits of specific public policies.
There is no functioning democracy in the world which restrains the space for peacefully competing political ideologies, except perhaps Germany, where there is some restriction on propagation of Nazi ideology. In every major democracy, the political ideology that is most successful in reflecting the aspirations of the large number of people at any given time, changes the political dynamics during elections. From Ronald Reagan to Barack Obama, from Margaret Thatcher to Tony Blair, the fortunes of political leaders and their parties have swung with the popular perception of the political ideologies of the time. This is what makes democracy such a potent political tool, and ensures the political survival of the society through the various competing ideologies.
The Constituent Assembly had deliberated at length on this very question of “socialism” in 1949. Even while acknowledging that there are many provisions in the Constitution that are socialistic in nature, the constitution makers had decided not to tie the hands of the future generations to a particular political idea. No less a person than Dr B R Ambedkar, the chairman of the drafting committee had then said,
“What should be the policy of the state, how society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether …”
If democracy is one of the basic features of the Constitution, then restricting it to on political ideology, is clearly a violation of the basic feature doctrine. What would be a democracy, where political parties are not free to fly their particular ideologies, and compete with each other in an attempt to peacefully persuade the citizens to one vision or another?
Swatantra Party Maharashtra—the inheritors of the mantle of the Swatantra Party, founded by stalwarts like C Rajagopalachari, Minoo Masani and others in 1959—had written to the Election Commission of India in 1994, noting their opposition to the ideas of socialism, and their inability to affirm to socialist ideals. The Commission had replied by pointing at the amendment to the section 29A of the Representation of the People Act which mandates affirmation to socialism. It thus acknowledged that its role is to implement the law as it stands, not to change or reinterpret it.
By acknowledging the “academic” nature of the question in the PIL, the Supreme Court has actually opened a door for the political liberals to come out of the woodwork. Now is the time for the liberals to come together and form a political party, with the sole objective of registering their opposition to the affirmation to socialist ideal. After forming the political party, an application to the Election Commission for registration needs to be filed, even though it is likely to be rejected for not meeting the legal requirement. That would enable the party to go to the Supreme Court and seek redressal of a legitimate and real grievance.
Liberals may not yet be a political force to have an electoral impact in India, but by forming a party with this narrow objective, can leave a permanent imprint on the political future of democratic republic of India. This is a not an exclusively liberal cause, though, and it is open to all shades of political opinion. If one ideology enjoys legal sanction today, then tomorrow another could very easily be banned. Putting democracy in a straitjacket will signal the end of political freedom.
All are welcome to the Party of the free and the brave! If the political space can be legitimately opened up, then the political agenda would have to change too, and then the electoral space will inevitably follow.