“Social progress can be measured by the social position of the female sex” - Karl Marx


Does Rule of Law Trump Tide of Public Opinion?

“THREE men make a tiger”, is a Chinese Chengyu (idiom or proverb) which refers to an individual’s tendency to accept absurd information as long as it is repeated by enough people. The proverb has been a part of Chinese society arising out of a story of a supposed speech by Pang Cong, an official of the state of Wei in the Warring States in ancient China. Pang Cong asked the King of Wei whether he would believe in one civilian’s report that a tiger was roaming the markets in the capital city, to which the king replied, ‘No’. Pang Cong asked what the king thought if two people reported the same thing, and the king said he would begin to wonder. Pang Cong then asked, “what if three people claimed to have seen a tiger?” The king replied that he would believe in it. Pang Cong reminded the king that the notion of a live tiger in a crowded market was absurd, yet when repeated by numerous people, it seemed real.

Though we have been allergic to Chinese imports off late, this particular Chinese import is both ‘good’ and ‘necessary’ for India. It raises important questions, which political philosophers have wrestled with. We know numbers and statistics are good but they are existentially impoverished.  In a democracy, which largely depends on numbers, the question is that if these numbers have any didactic value or are simply an aggregation of individual opinions.

Is it enough that the ‘majority’ has sanctioned a world view or there are moral absolutes in our body polity which is divorced from the number of its subscribers?  

At this point, ‘democracy’ should be distinguished from ‘majoritarianism’.  

While we try and figure out an answer, let me serve you a nice cocktail of Biblical wisdom with constitutional morality.  

Jesus Christ, a middle-eastern Tricenarian man in scanty clothes beaten to his bones stood in front of the representative, Pontius Pilate the Governor of Judaea, of the most powerful empire our world has ever seen, the Romans. The crowd, the Jews, the same people to whom Jesus belonged to stood in the pit baying for his innocent blood. The charge against Jesus was that he had committed blasphemy. Pontius Pilate asked the crowd, “Whom do you want me to release for you: Barabbas, or Jesus who is called Christ?” The crowd bellowed, “Barabbas”. Barabbas was one of the most horrendous offenders of first-century Judaea someone we would refer to as “history-sheeter” contemporarily.  

Exactly 2000 years later, cut to India. J Jayalalithaa was convicted for certain offences under the Prevention of Corruption Act, 1988, and the Indian Penal Code, 1860, and was accordingly disqualified under the Representation of Peoples Act, 1950 from contesting the state assembly elections of 2001. Though her nomination papers were rejected and she ended up not contesting the polls, her party the AIADMK won a thumping majority riding on her charisma and cult of personality. When the moment of crowning arrived, she was nonetheless appointed as the Chief Minister using an interesting provision of our Constitution, Article 164.  

Article 164 (4) allows the appointment of a person as a minister even if such person is not a member of the house provided such a person seeks election to the house within six months of such an appointment.  

As pointed out earlier, since the modus operandi of democracy is aggregating individual opinions, why do “librandus” keep attacking positions which have the majority backing?

To refresh our memories this provision is used frequently when the leader-apparent of a political party has not contested the polls for some reason including recently in the case of Uddhav Thackeray in Maharashtra.

Jayalalithaa’s appointment was challenged vide public interest litigation and the Supreme Court delivered its judgment on the issues in the matter-BR Kapoor v. State of Tamil Nadu. The core concern was that though Article 164(4) allows for such contingencies, however, how can a person who is otherwise disqualified from being the member of the house be appointed as a minister using the provision. Apart from the technical arguments, the counsel for Jayalalithaa had famously argued that even though she is disqualified, but the “will of the people” is clearly on her side as her party which had projected her as the chief ministerial candidate has won. People being the ultimate sovereign want her to be the chief minister and accordingly, she should be allowed to continue.  

From Jesus to Jayalalithaa, the fundamental question remains is whether the majority can be wrong? As pointed out earlier, since the modus operandi of democracy is aggregating individual opinions, why do “librandus” keep attacking positions which have the majority backing? Is it not hypocritical in claiming to espouse democracy yet trying to dilute the majority views? The counter-narrative is that if democracy really is merely about counting hands and heads. Is there something more to it?

Herbert Spencer demonstrates the conundrum with a rather morbid illustration in “The Right to Ignore the State”. He says: “Suppose, for the sake of argument, that, struck by some Malthusian panic, a legislature duly representing public opinion were to enact that all children born during the next ten years should be drowned. Does anyone think such an enactment would be warrantable? If not, there is evidently a limit to the power of a majority.”  

Law is in fact the king of kings and trumps over the tide of popular opinion.  

In informal logic lessons we were taught (hopefully!) about one of the most used (or rather abused) logical flaws people rely on- argumentum ad populum/ democratic fallacy. Illustration: Everyone drives over the speed limit, so it should not be against the law. Do you see the problem here?  

At this point, ‘democracy’ should be distinguished from ‘majoritarianism’. One of the lesser-known facets (unfortunately) of democracy is that it is not only the rule of the majority but also has within its folds one of the most sacred epithets known to humankind –“The Rule of Law.” Numbers + Rule of Law= Democracy.

If there is no rule of law circumscribing the numbers in that equation what we are left with is no more than the rule of the mob. History is peppered with examples of the majority going horribly wrong. Hitler was ‘elected’. The Nuremberg race laws were in fact passed by a legislature. The Salem Witch Trials were fueled by strong public opinion. We would have had Jim Crow laws in America today, had it not been for the judicial pronouncements of the Supreme Court of the United States on its various pronouncement on civil rights.  

Dr. Martin Luther King Jr., had eloquently addressed this point in one of his most famous writings, he had said, “We can never forget that everything that Hitler did in Germany was ‘legal,’ and everything the Hungarian freedom fighters did was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany, but I am sure that if I lived in Germany during that time I would have comforted my Jewish brothers even though it was illegal… we who engage in non-violent direct action are not creators of tension. We merely bring to the surface the hidden tension that is already alive”.  

Law is in fact the king of kings and trumps over the tide of popular opinion. We, in India, have adopted a written constitution which is a departure from the style of democracy in Britain who do not have a written one precisely so that we can hold up the constitution against the barrage of unreasonable public opinion as to the standard of truth. It is said of the British parliament that it is so powerful that it can declare a man, a woman, and vice versa. We decided against bestowing similar powers on our Parliament so that the absurdity of such a scenario can be avoided. So that ‘truth’ is not a casualty in the process.  

In my assumption lies the hope for the future of our democracy. The hope that we do not consider democracy as merely an aggregation of the opinions of mobile vulgus, meaning “the fickle crowd”.  

The eerily similar stories of Jesus and Jayalalithaa parted ways in the end. While Jesus was crucified in consonance with the popular opinion of the time. The Supreme Court of India rightly swam against the tide. The Court decided to reject the argument for her continuance and in doing so struck some sacred cords resulting in one of the best tunes to have come out of its hallowed halls.

It said, “To accept learned Counsel’s submission is to invite disaster. As an example, the majority party in the Legislature could recommend the appointment of a citizen of a foreign country, who would not be a member of the Legislature and who would not be qualified to be a member thereof under Article 173, as chief minister under Article 164(1) read with (4) to the Governor; and the Governor would be obliged to comply; the Legislature would be unable to pass a no-confidence motion against the foreigner chief minister because the majority party would oppose it, and the foreigner chief minister would be ensconced in office until the next election. Such a dangerous – such an absurd – interpretation of Article 164 has to be rejected out of hand. The Constitution prevails over the will of the people as expressed through the majority party. The will of the people as expressed through the majority party prevails only if it is in accord with the Constitution.”  

I assume that the last few lines are not a revelation for the readers that even the “will of people” is subservient to our Constitution, subservient to the truth threshold that we gave ourselves on January 26, 1950. In my assumption lies the hope for the future of our democracy. The hope that we do not consider democracy as merely an aggregation of the opinions of mobile vulgus, meaning “the fickle crowd”. While it may be looked at as the rule of the majority simpliciter, democracy is in fact the rule ‘by’ way of discussion and disagreement.

The Supreme Court of India in Kesavananda Bharati case in fact had solidified this protection by putting fetters on the power of the parliament to amend the constitution as it “wills” so that the basic structure (the truth threshold) remains intact unaffected by public perception of the time. In Maneka Gandhi v. Union of India, the Supreme Court went one step ahead and said that the sanctity of laws (i.e. the truth threshold) does not merely come from the fact that the same is passed validly by a legislature. The laws also have to be ‘fair’ and ‘just’. In my opinion, in this case, the Supreme Court breathed life into constitutional ‘morality’.

The real tussle is between the rule of law which is fair and just and the lack of it.  

As John Adams, had pointed out in “A Defence of the Constitutions of Government of the United States of America”, democracy sans checks and balances can lead to the “tyranny of the majority”. Edmund Burke had written a scathing letter in 1790 where he had aptly described “The tyranny of a multitude is a multiplied tyranny”.

We should never forget that the tussle is not between the majority and minority because those constructs may change tomorrow and the individual truly remains the smallest minority on earth. The real tussle is between the rule of law which is fair and just and the lack of it.

In the same exchange between Jesus and Pilate as mentioned earlier, an interesting thing takes place. In the context of the charge of blasphemy against Jesus, Pilate poses a question to Jesus-“You are a king, then!”

Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”  

As the drama rises, Pilate retorts with another question. Perhaps the most important one-“What is truth?” However, he did not wait for an answer and walked out. My hope is whenever we pose that question or it presents itself to us, we do wait for an answer.  

(Pratik Patnaik is a lawyer based in New Delhi and a constitutionalist. Views expressed are personal.)  

This article was first published in The Leaflet.  


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