Party politics has come to regard the working of our constitution as morally neutral so that political leaders can do whatever they like, whenever they like. The constitution can soar into the skies to demonstrate the best of the best and be sunk deep into the recesses of a morass to remind us how realpolitik descends into evil.
As politics enmeshes the system, what are we to do ‘after evil’? The preferred response in Indian political discourse is: nothing. So a government falls until another one rises by the same methods of the one before and the one to follow. Their Excellencies, the governors are party political conspirators. Those who don’t have shame cannot be ashamed.
I have to distinguish between three kinds of moralities attached to the interpretation and working of the constitution: transformational morality, constitutional morality, and institutional morality.
Of these, transformational morality is the widest and most controversial. It projects the idea that India’s constitution is not just a set of rules with limitations imposed on the exercise of power, but has a social and economic purpose to be supported by all organs of government. The problem of transformational morality is not in its ambition but its interpretation and appropriation by those in power. It is too open-ended. Anyone can claim that their transformation is superior to the other.
Take the Citizenship (Amendment) Act. Modi’s government believes it is consistent with transformational morality; and will transform India and resolve problems. State legislatures disagree. Protestors disagree. Counter protestors add violence to protest.
Judges have their own version of transformational morality. Most judges do not have strong views on this and decide doctrine and cases routinely. But like politicians and political parties, judges differ in their approach. Is the constitution socialist or capitalist, liberal or coercive, docile or progressive; and in each way, in what way and to what extent. Thus, transformational morality is a toy which allows itself to be played by any or everybody.
Constitutional morality is a phrase traceable to Ambedkar invoking George Grote, a writer on Ancient Greece. But if we read the text carefully, Ambedkar’s plea is that people act within the restraints imposed by the constitution and not enter into violence and satyagraha. This seems strange given his own protesting background. Yet constitutional morality also has this textured with malleable possibilities. It is not that we cannot handle concepts that could be differentially interpreted and appropriate. Indeed, in the Madhya Pradesh crisis, Jyotiraditya Scindia claims the high moral ground even though the more or less admitted stance in his letter to the Congress high command admits personal frustration within the party.
The moral of this is that anyone who is frustrated with the bosses of the party on whose platform he was elected can bring down his own government induced by bribes and inducements from the party he joins. If this is in conscientious objection, it is not conscientious enough. This is India’s political bit-coin currency which is not law but can be the currency of acceptance as long as immoral politicians believe it to be so. So ‘aya ram gaya ram’ is not projected as immoral but the accepted currency of Indian politics, given a new life by the BJP with ruthless exposition. Any attempt to weaken the status of this currency falls into the loopholes of constitutional endeavour.
I think institutional morality is a much more compact and manageable concept. It does not canvas sky clad perspectives which revel in generality. Our public and corporeal existence is hedged in by institutions and processes. If they are distorted or break down, there is a systemic breakdown. An election is a process with a purpose. It has a morality of process on how votes are cast with the intention that the candidate who succeeds will not betray the electorate’s trust. Parliament is an institution with well-defined processes. It has normative standards which constitute its institutional morality. The same is true of government departments and institutions.
India has developed a ‘sab-chalta-hai’( everything works) culture that make institutions and processes worthless. Institutional morality abjures this with a ‘sab nahin chalat hai’ (everything does not go). What should be done is easily identifiable in minutiae, including flexibilities and best practice. Indeed, institutional practices are an exercise in “best practices”. This would apply to the judicial system, including the Supreme Court.
Judges, bureaucrats, politicians or even the media cannot play a game of what they can get away with but need to pursue the ‘best practice’ conducive to the institution and the processes designed by it. I believe the concept of dharma and the good is imbibed by and imbricated in best practice. No doubt there is room for – as, indeed, there must be – for conscientious objection and conduct.
Even Scindia must know what is ‘sinful’ by the tests of institutional morality and ‘best practice’. If not, why did he write the letter he did to the Congress chief? The essence of his complaint is that he was being ignored and deserved better. In this, can we suppose that ‘best practice’ consists of trying to topple a government, betraying the people who nurtured him and running headlong into the arms of the BJP which welcomes him with audacious, smiling jaws?
But that is not all. From the BJP, he expects and will be given prestigious gifts meted out to a soldier of fortune. The evening he announced he was joining the BJP, the party said it was nominating him to the Rajya Sabha as an MP. If the ‘best practice’ is to be a soldier of fortune, then the Indian system of politics is unworkable.
If like his aunt and grandmother, he was in the BJP mould, he has been living a false political life so far. Let us assume this is not so. His grievance appears to be that neither the old guard nor the new guard (Sonia and Rahul) listened to him to give him the goodies he deserves. He says he tried but failed. Did he tell them that he wanted to resign or discuss this? No. Had he created an inner party with whom he would walk out? Did he discuss this with others or just his followers before imprisoning them in a hotel?
Had he done so, a solution and discourse would have emerged which the essence of all ‘best practice’ strives for. But that was not the game. He was the bruised Prince of the Party who was neglected and supposedly pauperised and deserved better. In fact, his actions were worse than an ‘aya ram gaya ram’ acting on petty inducements. Harold Wilson called those who use unjust methods to achieve results ‘parliamentary lepers’. In India, sadly, we treat them as wizards who play the game as soldiers of fortune.
There is no advice that one can give other than to realise the peril we are in if we cannot shame the shameless.
Rajeev Dhavan is a senior advocate.