MUST READ: Soli J. Sorabjee on Democracy

The former attorney-general of India, Soli J. Sorabjee, delivered the Justice K.S. Hegde Charitable Foundation Lecture in Mangalore last Saturday on 'Challenges to Democracy: We Have Promises to Keep'.

Ostracise corrupt officials, said Sorabjee with trademark candour. "For heaven’s sake do not invite ministers, officials and politicians who have earned a well-deserved reputation for corruption and criminality to inaugurate schools, hospitals and charitable foundations."

So, why is Sorabjee's lecture featuring in Churumuri? Because, our newspapers no longer have the space for things like these. Because he too loves good food and jazz. And because, as he told Behram Contractor alias Busybee in an interview 12 years ago, it's in Mysore he eventually wants to settle down in.  

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26th November 1949 was a historic day of utmost significance in the life and destiny of our nation in its march towards freedom. After a long night of waiting, a night full of fateful portents and silent prayers, our Founding Fathers accomplished the challenging task of framing a Constitution for free India. They had a grand dream, or rather a vision, of India where poverty, hunger, disease and exploitation would end and the people of India would be assured justice, equality and human dignity.

In framing our Constitution our Founding Fathers made a conscious deliberate choice. They decided to adopt democracy or rather the democratic way of life as the basis of our Constitution. They were aware of the drawbacks and difficulties involved in a democratic system. They realized that democracy cannot provide quick results unlike a dictatorial form of government.

However, despite the temptation of quick solutions and short-term spectacular results offered by an authoritarian system, they opted for democracy. They had firm belief in individual freedoms and were committed to the protection and promotion of human rights called fundamental rights in our Constitution and incorporated the guarantees of fundamental rights in Part III of our Constitution and made them enforceable by an independent judiciary.

The rationale underlying fundamental rights is that human rights flow from the common humanity and inherent dignity of every human being irrespective of race, religion, caste, color, sex or status.

Human Rights are not gifts conferred by the State. A Bill of Right does not create human rights. It confirms their existence and guarantees their protection. 

Part IV of our Constitution sets out Directive Principles of State Policy. They embody the goals and ideals for making our country a true welfare state in the right sense. Directive Principles are not directly enforceable by any court but are nonetheless “fundamental in the governance of our country”.

Directive principles in substance encapsulate the elements of social and economic justice. At one stage of our constitutional development and constitutional jurisprudence fundamental rights were given primacy over directive principles which were regarded as subordinate to fundamental rights. That heresy in course of time was demolished. Justice K.S. Hegde aptly described the correct interrelationship between fundamental rights and directive principles. 

“The fundamental rights and the directive principles constitute the ‘Conscience’ of our Constitution. The purpose of the fundamental rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the directive principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Without faithfully implementing the directive principles, it is not possible to achieve the welfare State contemplated by the Constitution”. 

Fulfillment of directive principles is vital for the functioning of a healthy democracy. There can be no good governance if Directive Principles are flouted and neglected. Failure to implement and effectuate directive principles is a serious drawback and poses constant problems to the functioning of our democracy. Indeed one of the grave challenges to our democracy is the absence of social justice which is the signature tune of our Constitution.

While winding up the debate in the Constituent Assembly, on 25th November 1949, before the Constitution was finally adopted, Dr. B.R. Ambedkar pointed out the perils of a life of contradictions in these memorable words:

"On the 26th January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man vote and one vote one value. In our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up."

The anguished question posed by Dr. Ambedkar continues to haunt us. Wide disparities in wealth and income persist, nay have increased and may be accentuated in the wake of unregulated globalization. Apparently we have got used to this life of contradictions. Dr. Ambedkar’s warning has gone unheeded. Social justice eludes us and appears a distant dream. How long shall we dither in meeting this challenge to our democracy? When will Dr. Ambedkar’s warning be earnestly heeded?

One of the obligations imposed upon the State by the Directive Principles is to minimize inequalities in income, status, facilities and opportunities and to ensure that there is no concentration of wealth in our economic system and the ownership and control of the material resources of the community are so distributed as best to subserve the common good.

Yet we still witness in India the sorry spectacle of concentration of wealth in the hands of few families and industrial houses whilst the majority of our people can hardly eke out a decent existence. We also witness the disgusting spectacle of lakhs of rupees being spent by some plutocrats on social occasions like weddings etc with pomp and splendour in sharp contrast to the conditions of the majority of the people across the street living in dingy dwellings and in unhealthy surroundings.

Are you surprised that Naxalites are gaining ground?

No one likes to pay taxes. But there is one tax I would strongly advocate and that is an expenditure tax on lavish and ostentatious expenditure. If a person can afford to spend, say five crores on a wedding, he should not mind paying a tax at the rate of 10% on such lavish expenditure, the proceeds of which can be specifically earmarked for rehabilitation of slums and slum dwellers. 

Although we value and flaunt democracy, to many the taste of democracy is bitter because its fullness is denied to them.

“We can have democracy or we can have concentration of wealth in the hands of a few. We cannot have both”. This was not said by a die-hard Marxist but the great American judge Louis Brandies. Securing economic and social justice is a moral imperative for any democracy, which respects equality, de facto equality, real equality of opportunities. Failure to do so results in disillusionment with democracy and leads to emergence and ultimate acceptance of authoritarian regime. That is a serious challenge which must be met. 

Another major challenge to our democracy is the persistent cancer of corruption. We have cried hoarse about corruption and talked about it ad nauseam and yet it flourishes with impunity. Unfortunately it is not realized that corruption is not merely a matter of increasing the bank accounts in India and abroad of the corrupt official or the individuals who are its beneficiaries.

The consequences of acts of corruption are not confined to the giver and taker of bribes who are both contaminated but they adversely affect the community. Corruption is a potent source of violation of human rights, especially the economic and social rights of the people and is in large part responsible for the neglect of basic human rights such as food, health, shelter and education.

There is urgent need for a law which provides for the forfeiture of the property and assets of the corrupt gentry which according to the judgment of a court after a fair trail have been acquired by corruption. But more than laws and their strict implementation what is needed is strong public opinion.

The corrupt officials should be socially ostracized. For heaven’s sake do not invite ministers, officials and politicians who have earned a well deserved reputation for corruption and criminality to inaugurate schools, hospitals and charitable foundations.

The need of the hour is to bring about a change in our political morality, our political culture, in our sense of values so that a corrupt minister or an official, a person with a criminal background and record will be unable to show his or her face in public. Laws are certainly required but the answer to this challenge and remedy ultimately lies with us, the people. 

Another challenge to democracy lies in the fact that criminals, corrupt and undesirable persons get elected and rule us and future generations. This happens because citizens do not exercise their franchise properly. Winston Churchill in felicitous language said: “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper."

The right to vote, of making a cross in a little bit of paper is a precious right and must be exercised with a full sense of responsibility. Votes should not be cast on the basis of the religion or caste of the candidate but on his or her individual merit, his character, a commodity in very short supply. Casting votes for candidates who have a colourful criminal record is a sacrilege, an affront to honest law abiding people. Indeed it is the citizens’ ethical obligation to reject such candidates.

It is equally the obligation of citizens to spurn defectors because defection is the worst form of political immorality. If these obligations are not performed we will have people in Parliament and in the legislatures who answer the description given by Sri Aurobindo who, referring to the average politician, said : “… he does not represent the soul of a people or its aspirations. What he does usually represent is all the average pettiness, selfishness, egoism, self-deception that is about him and these he represents well enough as well as a great deal of mental incompetence, timidity and pretence. Great issues often come to him for decision, but he does not deal with them greatly; high words and noble ideas are on his lips, but they become rapidly the claptrap of a Party". Failure to meet this serious challenge will weaken, impair and ultimately destroy democracy. 

Moreover, citizens' obligation in a democracy is not discharged by the exercise of franchise once in five years and thereafter retiring in passivity and not taking any interest in the working of the government. An alert and active citizenry is essential to meet the challenges to democracy and to ensure its successful functioning. Accountability is a sine qua non of democracy because as Benjamin Disraeli rightly reminds us "all power is a trust-that we are accountable for its exercise that, from the people and for the people, all springs, and all must exist". This accountability is to be enforced not merely at the time of elections but during the life of the government in power. Otherwise democracy will become merely a ritualistic exercise in voting and not a continuous process o f government by the people. 

The question is how is accountability to be enforced. The answer is by insistence on transparency  and openness in the conduct of administration. For that purpose citizens require information which every administration whatever be its political complexion tries to manipulate and withhold. Where a nation has chosen to accept democracy as its article of faith, it is elementary that citizens have a right to know what their government is doing and to call upon their rulers to account for their conduct.

It is only when people know how the government is functioning that they can fulfill the role which democracy assigns to them, namely, government by the people and thereby participatory democracy becomes meaningful. Failure to do so poses a real challenge to democracy.

James Madison, one of the Founding Fathers of the US Constitution, aptly summed up the position in these words: "People who mean to be their own governors must arm themselves with the power knowledge gives. A popular government without popular information or the means of obtaining it, is but a prologue to a farce or tragedy or perhaps both".

Full use should be made of the Right to Information Act and the opportunities it provides for disclosure of malfeasance and wrongdoing in administration. Hero worship is endemic in our country and the personality cult flourishes. There is nothing wrong in admiring our leaders as heroes and heroines. However the risk is that in the process the tendency is to entrust such person with vast powers and uncritically accept the exercise of these powers without insisting on accountability.

Dr. Ambedkar was aware of these lurking dangers. In the Constituent Assembly he underlined the importance of observing the caution which John Stuart Mill had uttered to all who are interested in the maintenance of democracy, namely, not 'to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions'.

There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratitude. As has been well said by the Irish patriot Daniel O'Connell, "no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty". Dr. Ambedkar emphasized that this caution is far more necessary in the case of India than in the case of any other country.

For "in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude, by the part in plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship". 

These words have a prophetic ring. We did not heed them to our cost and had to suffer the imposition of the spurious June 1975 emergency which was foisted on the country by a powerful charismatic leader. The slogan India is Indira and Indira is India was chanted ad nauseam in the sycophantic hero worship of the leader. We paid the price. Democracy suffered a temporary demise in our country from June 1975 till March 1977 when it was revoked.

We must be on our guard that this dangerous phenomenon which eventually leads to dictatorship does not recur and ensure that this challenge to democracy is effectively met and nipped in the bud. We have had enough of dynastic rule. 

Of all challenges to our democracy to my mind the gravest is the rise of fanaticism and intolerance which has assumed menacing proportions. In a genuine democracy there should be freedom not merely to extol the accepted thinking and conventional wisdom but there should also be freedom for the thought we hate. The dissenter must feel at home. Right to dissent is the very essence of democracy.

Our Supreme Court has recognised that the voicing of a contrary opinion are powerful wholesome weapons in the democratic repertoire.  Our Supreme Court, in the Jehovah's Witnesses' case, has reminded us that "Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practices tolerance. Let none dilute it". In its celebrated judgment in S. Rangarajan our Supreme Court approved the observations of the European Court of Human Rights that  "freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the State or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without which there is no democratic society". 

In a free democratic society tolerance is vital, because firstly, it promotes receiving or acknowledging new ideas and helps to break the status quo mentality. Secondly, tolerance is particularly needed in large and complex societies comprising people with varied beliefs and interests. This is because a readiness to tolerate views other than one's own facilitates harmonious coexistence by serving to check the wish to establish an overly homogenised society. Thirdly, in circumstances where people are willing to tolerate views of the 'other minded', they may be more prepared to accept non-verbal modes of activity that they regard as objectionable. This factor has particular relevance in plural societies.

Intolerance stems from the dogmatic conviction about the rightness of one's tenets and beliefs and their superiority over others. Intolerance thrives on prejudices and irrational stereotypes. It fosters feelings of ill-will and enmity between different classes and communities. Intolerance with passage of time ultimately leads to forcible imposition of one's ideology and dogmas on others often leading to violence. An intolerant society does not brook dissent. An authoritarian regime cannot tolerate expression of ideas which challenge in the form of writings, plays, music or paintings its doctrines and ideology. 

At present the rise of intolerance is alarming. Any criticism of Madam Sonia Gandhi and her style of functioning by any Congress person is visited with unpleasant consequences.  At one time no one could dare criticise Bal Thackeray without incurring the wrath of the Shiv Sainiks. Regrettably we have reached a stage where even moderate expression of a different point of view is met with resentment and hostility and there are vociferous demands for bans.

The banning itch has become infectious. Sikhs are offended by certain words in the title of a movie, Christians want a movie banned because they find some portions hurtful. No one dare write an authentic and critical biography of a revered religious or political leader. The American author James Laine who wrote a biography of Shivaji in which there were unpalatable remarks about Shivaji was sought to be prosecuted and there was a ridiculous demand for his extradition. Worse, the prestigious Bhandarkar Institute at Pune where Laine has worked and done some research was vandalised and invaluable manuscripts were destroyed.

This was fascism at its worst and a fatal blow to our democracy. Take the recent instance of intolerance displayed towards the actor Aamir Khan. One may disagree with his views or his lending support to the Narmada Bachao Aandolan movement and criticise him severely but to burn his posters and to prohibit the screening of his movies is the height of intolerance. 

It is not sufficiently realised that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. Development and progress in any field of human endeavour are not possible if any thought or opinion which questions the current ideology incurs the ire of the authorities or a certain section of the population and is visited with dire consequences. Without free and frank discussion there can be no progress in any field of human endeavour. The consequence is that dissent dries up. Healthy and vigorous debate is no longer possible. And when that happens democracy is under siege and under threat.

And that is the challenge we must counter fully with all our might. We must realise the urgent need to combat intolerance and the deadly  threat it poses to the democratic fabric of our nation. We must, it is our duty to promote tolerance in our multi-religious, multi-cultural nation and thereby strengthen and enrich our pluralist democracy. 

How do we meet this lethal challenge? Firstly by the enactment of appropriate legal mechanisms and their fair and strict implementation. However the crucial point is that tolerance cannot be legislated. We must develop the capacity for tolerance by fostering an environment of tolerance, a culture of tolerance. Stereotypes and prejudices about certain classes and communities must be eschewed and eliminated. The practice of tolerance must be regarded as a fundamental duty of every citizen and must be actively encouraged if we are to sustain our democracy. 

Our Constitution embodies the lofty aims and aspirations of our Founding Fathers. After 56 years these goals and ideals have not been realised. Our neglect and failure to fulfill them pose grave challenges  to our democracy. The time has come when we must take positive action and adopt measures to effectively meet these challenges. I know that the task is stupendous. But the stakes too are stupendous, the very survival of democracy in our land. There is one rule we must steadfastly follow and that is never to yield to cynicism or fatalism, the thinking that things have gone so terribly wrong that no improvement is possible. Fatalism is the grand alibi for shirking responsibilities and justifying our lethargy.

Let us resolve today to redeem the pledge and promises of our Founding Fathers articulated in the Constitution and to travel cheerfully and undaunted on that difficult road with many miles to go never forgetting that we have promises to keep before we go to sleep. And God willing, we shall do so.

(This is the full and unexpurgated text of the Justice K.S. Hegde Charitable Foundation Lecture delivered by Soli J. Sorabjee, former attorney general of India, in Mangalore on April 29, 2006)