What the people want
INDIA’S government and the Supreme Court disagree about the roles of an elected Parliament and the court in upholding the Constitution. The justices say they are responsible for protecting the ‘basic structure’ of the Constitution. The government says the people, through their elected representatives, have superior rights in a democracy, and the Parliament’s powers cannot be reduced by self-appointed justices.
People’s will changes as ideas of rights and liberties evolve. Good governance requires a robust process for those who govern the people to continuously listen to them.
The Pew Research Centre surveys and the Global State of Democracy Report, 2021, reveal that two-thirds of citizens in democratic countries do not trust institutions such as elected Assemblies and courts to represent their will. They include the US, which is ostensibly leading a global fight for democracy against autocracies. Citizens are frustrated with the gridlock in governance with different interpretations of their constitutional rights. Gun laws are not changed in the US despite growing concerns about the proliferation of weapons because the right to arms was enshrined in the Constitution over two centuries ago. Abortion laws have been reversed by a conservative Supreme Court to protect the right to life of unborn infants; laws that an earlier, liberal Supreme Court had endorsed to protect the lives of their mothers.
What ‘We the People’ want evolves as ‘we’ evolve, as Lynn Hunt, professor of history, explains in ‘Inventing Human Rights: A History’. Therefore, rights codified in a Constitution written at an earlier stage of our history may not reflect what the people want today. For example, the concepts of human rights are being expanded in many countries to include equal legal rights of all LBGTQ citizens because people have become tolerant of different sexual orientations that constitutional writers (and the people then) had considered abhorrent.
Abraham Lincoln said in 1864, ‘We all declare for liberty; but in using the same word, we do not mean the same thing.’ Written Constitutions, which courts must follow, state what the will of the people was at some prior time in history. The will of the people changes as ideas of human rights and liberties evolve. Therefore, good democratic governance requires a robust process for those who govern the people to continuously listen to the people. Because people, not courts, shape the norms — the ‘unwritten rules’ — of their societies.
The separation of powers between the legislature, the judiciary and the executive, and the checks and balances amongst them, are essential for sustaining democracy. Neither the Supreme Court nor the elected Parliament is superior to the other when it comes to deciding what the people want. That right must remain, finally, with the people. Even a majority in an Assembly of elected representatives cannot be allowed to pass any legislation that takes away this fundamental right from the people.
Citizens want many things and may not agree about everything. The Arrow Impossibility Theorem, propounded by economist Kenneth Arrow, is a fundamental dilemma in social choice theory. The theorem proves that there is no voting method in which voters, by merely expressing their votes as ‘yes’ or ‘no’, can produce a unanimous outcome, no matter how many rounds of votes there are. The mathematical problem here is that individual voters’ preferences cannot be sliced and diced; nor can the choices before them be made too simply as ‘this’ or ‘that’ to enable easy voting and counting (as is done in referendums such as Brexit).
Preferences are formed by combinations of many factors in their histories and their present circumstances; also, by what they value most, which may not be the same as other citizens’. Therefore, their preferences for candidates in elections cannot reveal their consensus about fundamental needs.
Economists are unhappy when the Supreme Court rules on economic policies. They say the court is not qualified to judge in economic matters. Economists are also unhappy with ‘populist’ measures undertaken by state governments which they believe are not good for the economy. Economists themselves cannot explain satisfactorily why loan write-offs for farmers are unhealthy for the economy whereas writing off losses of large companies is good economics. And when is a revadi a justifiable subsidy and when is it a vote-catching measure? What notions of justice should apply in economics to determine good or bad economics?
Parliaments and courts must grapple with conflicting concepts of good economies and good societies. The economy must be recoupled with society. Protection of property rights is a fundamental duty of the law. However, as concepts of human rights evolve, judges and economists, too, must apply evolving views of human rights to property rights. Therefore, definitions of ‘capitalism’ and ‘socialism’ must evolve.
Constitutions, courts and Assemblies are not all that a democracy needs to function. A genuine democracy is the government of the people, by the people. People, not courts, shape the norms. People who belong to different political factions, who practise different religions and who have different histories within the history of their nation must listen to one another and learn to co-exist.
Farsighted leaders of the Muslim community, who have formed the Alliance for Economic and Educational Development of the Underprivileged, have built a bridge with leaders of the RSS. Such initiatives will repair the Indian democracy.
It is imperative for a democracy that ‘people like us’ listen to ‘people not like us’. It is time to press the pause button; put our smartphones in the silent mode; shut out the tweets, trolls and soundbites. It is time to listen to the caring in our hearts, and to the voices of people not like us. Then, we will learn and find solutions for living together on our shared Earth.
