We are firmly in the midst of a new narrative being written. A new narrative that touches all aspects of Indian society, from the historical to the sociological, informational, and inevitably, the constitutional. This post examines one proposition of our new Indian narrative – that the power exercised by a validly elected government should not be contested. At its core, this position consists of two elements: (i) the actions of such a government represent the will of the people; and (ii) when in power, the elected representatives of such a government claim sole authorship over the Indian polity – other groups will have their chance at authorship (if) and when they are elected.
In this post, I question these twin assumptions from the perspective or republican self-government. I argue that for a State to be legitimate, it must create a system of popular control where ‘the people’ are the ultimate arbiters of the efficacy of a government. Elections and ‘the will of the people’ are insufficient controls. Rather, what is required is a system of contestation on every site of public-decision making. I seek to demonstrate how despite elections, contestation by ‘the people’ is not an inconvenience to be tolerated, but a vital control on State power that ensures the continued legitimacy of the State as a whole. I end by briefly commenting on the outer limits of contestation, the case of unjust laws and the fraying legitimacy of the State.
The role of the State
States exist to coordinate a community’s behaviour and achieve a better life for the community’s members (e.g. we all drive on the same side of the road, allowing us to drive more safely). At its most basic, a State may protect its members from external threats. People band together on a patch of land for geo-strategic reasons and determine who is worthy of protection. Long before the Indian Constitution talks about rights or principles, it talks land, territory, and citizenship (Art. 1 to 11). Once these primal concerns are addressed, members begin to fine tune their State to better their lives vis-à-vis each other. See Articles in the Indian Constitution attacking centres of dominating private power such as gender, caste, and religion.
To achieve these goals, the State must be empowered to take action. As citizens, we want the State to have the power to protect our borders, we want the State to exercise coercive power to dismantle the inequalities of gender, caste, and religion. However, empowering the State raises a parallel concern – will the State itself become a source of unfreedom? State power when exercised for private or factional interests can be detrimental to the members of a political community. This dilemma lies at the heart of constitutional law. As James Madison summed it up, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist 51). Madison responds to the dilemma in his very next line – “A dependence on the people, is no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
Before addressing ‘the people’, a word on ‘auxiliary precautions’: these are design choices to restrain State power and thus lower the risk of it being manipulated. The two most pertinent being the rule of law and the dispersal of power. Legislating in a principled and general (not particularistic) manner and ensuring laws apply equally to all guards against State power being used in a factional or private interest. This is why selective (‘political’) prosecutions or discriminatory legislation are intuitively inimical to us as citizens, because the coercive power of ‘our’ State is being manipulated. Further, States typically disperse power to limit the ability of any one authority drastically restricting a citizen’s freedom. See checks and balances across branches of government, bicameralism, and federalism as other classic examples of breaking up power.
Control by ‘the people’
However, as Madison noted, ‘the people’ form the primary control on government. The ability of citizens (as a collective) to continually ensure that the coercive power of the State is being employed for their benefit forms a background justification for tolerating the authority of the State. In other words, the State must prove to be acting in the interests of citizens, else it must be abolished.
As Akhil Amar notes, long before the American second amendment protected individual gun enthusiasts, it enshrined a distrust of large standing armies who may not act in the citizens’ interests (see Myanmar in 2021). The American founders firmly believed that a real republic should be guarded by its own citizens, far more reliable than a motley band of outsiders armed to the teeth. Vesting control with citizens means granting them the power to “alter or abolish the established Constitution, whenever they find it inconsistent with their happiness”. A blog post is not the place to discuss the varying textures of the Indian constitution, but our framers were not blind to the need the State to track the well-being of citizens; see the adoption of universal suffrage, parliamentary accountability, and the nexus between the inviolable right of individuals to approach courts (Art. 32), and the power of courts to strike down a broad range of State action (Art. 12 & 13).
The other side of this coin is that where citizens are controlling the State to act in their interests, citizens have a corresponding obligation to obey its general authority (more on this later). But how do we determine whether the State is acting in the interests of the citizens, especially as reasonable citizens can disagree over what constitutes the citizen’s interests in a plural society? And does obeying the general authority of the State mean accepting its every decision?
Contesting Specific Actions
States represent a compromise between the individual and the community. Individual agency sometimes must give way to facilitate coordination (e.g. for all of us to drive safely, I forgo the right to drive on whichever side of the road I choose). However, correspondingly, the State must recognise the claims of individual and groups to autonomy and opinions. One understanding of how this achieved is consent to government action – individuals consent to their autonomy being limited on specific sites. But as Philip Pettit notes,
“If explicit individual consent is required, non-arbitrariness in public decision-making becomes an inaccessible idea. If implicit consent is thought to be enough, and an absence of protest is taken as evidence of implicit consent, then non-arbitrariness in public decision making becomes an idea so accessible as to be empty.”Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).
Within our democratic framework, one solution to this quandary is contestation. More specifically, when citizens or groups disagree with specific actions of a State (usually through its elected government), they have a right to contest this action. At every site of public-decision making, individuals and groups must be capable of raising questions as to whether government action involves the appropriate considerations to further the citizen’s interests. Although elections are a form of contestation, elections alone represent a far too intermittent and imperfect method of popular control (especially in the age of powerful political parties and an anti-defection regime). Thus, elections are not the exclusive form of citizen control. Transparency in government decision making (facilitative), the right to information (facilitative), public consultations as part of Environmental Impact Assessments, jury trials (before they were abandoned), challenging State action in courts, parliamentary sub-committees, parliamentary debate itself, and finally public protest are all institutionalised forms of contestation that ensure State power is continually used for ‘the people’. As Pettit notes,
“The self-ruling demos or people may often run on automatic pilot, allowing public-decision making to materialize under more or less unexamined routines. But what makes them self-ruling is the fact that they are not exposed willy-nilly to that pattern of decision making: they are able to contest decisions at will and, if the contestation establishes a mismatch with their relevant interests or opinions, able to force an amendment.”Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).
(Unfortunately, the systemic weakness of many of these forms of contestation has left Indian citizens with few options to retain control over the government other than taking to the streets.)
This stands in stark contrast to populist reasoning that the elected representatives are the sole authors of a nation’s fate. What emerges is system where an elected government has a mandate to act in the citizens best interests, and individual and groups operating through various inflection points within our constitutional democracy keep them honest to this goal. The process of contestation attempts to bridge the all-important gap between individual/group autonomy and the needs of the collective by arriving at a compromise where neither is unduly subordinated. Perfect consensus may not always emerge, but the process of contestation ensures that an individual’s/group’s autonomy is not supressed for the sole reason that its views are at variance with an elected government or ‘popular will’. Rather, compromise is achieved based on publicly-defensible norms.
How should the State be contested?
Recall that where a State is legitimate and generally pursues the citizens interests, citizens have a corresponding obligation to obey the State. How do we square this with the above discussed right of citizens to contest the actions of the State? Simply put, I can continue to respect my State’s general authority while still challenging the exercise of the State’s specific authority. The framers of our Constitution were all too conscious of this crucial distinction. For example, in explaining why the offence of sedition should be scrapped, Ananthasayaman Ayyangar distinguished ‘an attack on the government’ from ‘the entire State being overthrown’ (See Bhatia, ‘Offend, Shock and Disturb’). The former could never be criminalised because, in systems of self-government (which India was about to become), the people’s right to argue that government action was not in the interests of citizens is inherent and a vital control on State power. Based on this rationale, the bar for sedition is not even that seditious speech may lead to violence (this can be dealt with by ordinary criminal law), but rather that the speech must advocate the overthrow of the State itself – i.e. contest its general authority.
It follows that even beyond the institutionally recognised methods of contestation, a citizen’s right to contest specific actions of elected governments continues insofar as they do not contest the general authority of the State itself. This may include breaking a law citizens view as unjust. For example, Pettit notes that the member of a civil disobedience movement may break a perceivedly unjust law but still accept the authority of the State to prosecute and the courts to judge them. When the authority of the State is divided into general and specific, and contestation is understood not as an inconvenience, but as inherent to self-government, the hollowness of a particular grammar of patriotism is laid bare – most notably the use of the term ‘anti-national’ to those critical of a government, or the flagrant use of the sedition provision.
To recap, in a system of self-government, citizen control over State power forms the background justification for obeying the State’s laws. Viewed from the perspective of autonomy, we are willing to tolerate our loss of autonomy if the State (through its coordinating power) grants us even more autonomy by furthering our interests. In addition to the rule of law and dispersal of power, citizen control is not achieved not solely by electing representatives, but rather through a system of public decision making that allows citizens to contest the specific authority of the State on various sites. Crucially, elections are not an infinite mandate to exercise the coercive power of the State but a conditional power. At any point, the demos may rise up and contest. Where citizens do contest, they may do so through institutional means or even by breaking the law and suffering the penalty. But in a legitimate State they must continue to respect general authority (i.e. not advocate the overthrow of the entire state).
This last point must be caveated given our present circumstances. The overall legitimacy of a State is always a matter of degree. It is therefore possible that that within a largely legitimate State, actions may be taken that “breach the conditions of legitimacy that the regime generally respects”. For example, Tarunabh Khaitan’s recent paper (here) distinguishes between actions that may ordinarily be taken by an elected government and actions that debase liberal democratic constitutionalism itself. Where the fabric of the State itself is changed to rob citizens of continued control, the State may lose a degree of legitimacy and should be prepared for challenges to its general authority.
Note: The intention of this post was solely limited to highlighting the contestatory tenets that underlie our system of self-government and rebutting arguments on the dispositive nature of elections. Readers interested in the comprehensive scholarly accounts of contestatory democracy and republican self-government may refer to: (i) Pettit, ‘Republicanism: A Theory of Freedom and Government’; (ii) Pettit, ‘On the People’s Terms’; (iii) and Raz, ‘The Morality of Freedom’ (on the political obligations of citizens).