Roots of constitutional political economy strengthened

Supreme Court judgement’s constitutional, governance and global implications

By Amar Yumnam

 The Supreme Court judgment in connection with the fake encounter cases in Manipur has implications much beyond to what would be the outcomes for the security personnel involved in those acts and the remedial justices rendered to the surviving families of the victims. The ultimate implications move much beyond these immediate results of punishment and compensation. My interest lies here.

I am rather interested in the long term social, political and economic implications of the judgment when the implications are fully rolled out. The first implication is one which would strengthen the social capital base of democratic functioning. Hugo Grotius wrote in 1625 in his classic The Rights of War and Peace thus:  “First, individual citizens should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals; secondly, citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole.” 

On hindsight, it turns out that the protagonists of the filing of the cases to the Supreme Court must have been moved by such a dynamic principle. This lays a long term foundation for social and collective mobilisation for addressing pains and wrongs in a democracy.

The other social implication is that the democratic structure of India has components for addressing certain seemingly lop-sided approaches to the performance of state functions. Further, the wonderfully positive implication is that the judgement strengthens the roots of constitutional political economy.

In a classic turn of events, the judgement takes to two important directions. First, the constitutionality is fundamental and it applies to all – both state and non-state. Second, one frequent problem in a constitutional polity is the trade-off between rule of state law and rule of law. Those in government for the sake of political and personal convenience conveniently tend to adopt the rule of state law instead of rule law. The Supreme Court judgment has in a landmark judgment set the working principle of the Indian constitutional democracy in clear terms.

Now in India so many unwarranted things are happening taking the convenient cover of being in political power, like the gau-rakshaks. Now the Supreme Court judgment says the law would catch up sooner or later in whatever position you are and whether state or non-state.

I am reminded of what the great thinker of twentieth century, F. A. Hayek said: “The tragic illusion was that the adoption of democratic procedures made it possible to dispense with all other limitations on governmental power. It also promoted the belief that the ‘‘control of government’’ by the democratically elected legislation would adequately replace the traditional limitations, while in fact the necessity of forming organized majorities for supporting a programme of particular actions in favour of special groups introduced a new source of arbitrariness and partiality and produced results inconsistent with the moral principles of the majority.”

In other words, Richard Bellamy reiterated when he found while examining the democratic processes around the world thus: “….virtues of the democratic process……suggest that the constitutional goods of rights and the rule of law would be better served by developing rather than curtailing them via less effective and legitimate legal constitutional constraints.”        

Further it also reminds us the Enlightenment principle that “Rather than deal with conflicting claims by trying to identify the elusive and shifting intersecting sets of people’s beliefs (which may in any case converge on falsehoods), the democratic approach involves recognizing the importance of truth as a regulative ideal in public debate, and institutionalizing means of bringing the truth to bear on contending political positions.”

Besides these the judgement has intense content of contemporary global thinking and commitment. The global spirit of honouring the fundamental needs and spirits of human beings are taken cognizance of. Even more, the world would now look to this judgement on how to go about constitutionalism and governance in a highly heterogeneous country.

(The author is Professor and Head: Department of Economics, Manipur University, India)