INDIA: A case study in the demise of representative democracy

India of 1947 had battled decades of colonialism to embrace self-rule. Whatever divisions seeped through party ranks, coalesced – and how beautifully – to fight for the right the people to a democracy. Having a common enemy helped. Compounded by the ability of the political leaders of that time to weave magic through words, connecting the plights of the millions to the queen-ship of one propelled movements across the breadth of the Indian subcontinent. While much has been said of the academic prowess as well as the oratory skills of the Founders, it was their ability to connect across barriers of identity that ultimately pushed the wheel. How dearly they protected their freedom of speech, expression and press is perhaps telling of the importance they assigned to being connected with those they had chosen to represent. How is it then that a deeply flawed election system and disjointed lines of public communication yielded one of the biggest civil disobedience movements the world had ever seen?

In terms of representation and reach, India 2018 is better abled than India 1947. And yet, it fell upon the unelected shoulders of four men and one woman to correct a deeply violent, colonial and bigoted law. The right to sexual identity was granted by five cis heterosexual individuals; the ones in need of representation reduced to being mere petitioners. India celebrated breaking off one more shackle, the Judiciary reveled in being the harbinger of liberal values to the Indian legal system yet one more time and the Parliament, as always, stayed mum. It is not that either of the institutions have embraced staunch anti/pro liberal positions. The Indian judiciary has its share of misogynists much like the Parliament. Misogyny is not illegal. But what is illegal is the Parliament’s distance from her electorate. Even if one were to contend that a majority of India does not support homosexuality, the increasing momentum of the movement should have propelled an informed debate within and without the Parliament. Instead, the government chose to not object to the petitions filed in favor of decriminalizing homosexuality as if that is the extent of the responsibility they owe to the LGBTQ community of the country. The distance between a judicial decriminalization of homosexuality and one done through a legislative device is the distance between a populist democracy and a representative one. The counter-majoritarian difficulty seems almost trivial when democratic institutions lose their representative character.

The biggest reason behind the rising legitimacy of an essentially non-democratic institution as the Judiciary is not a power grab by the Supreme Court judges. Howsoever activist they might get, the requirement of giving a reasoned decision tempers their emotions. The Indian Parliament, on the other hand, has come to rely on this increasing politicization of the judiciary to avoid political battles that might require concessions from their mostly unreasoned manifestos. The result is a lack of deliberation that is disturbingly dismal for a democracy as huge as India. The requirements of representation have come to be restricted to a periodical holding of elections. Members of Parliament are neither Burkean agents nor Pateman’s representatives. They are a political class unto themselves working towards a steady demise of the largest democracy in the world.

10 horrific ways to die (RCH)

Yes, that’s the subject of my weekend column over at RealClearHistory. An excerpt:

4. Cutting off limbs/flaying. The English version of being hanged, drawn, and quartered involved removing genitals, but did any other society in history stoop so low? Um, yes. Not only have penises and/or testicles been removed and vaginas flayed, but they have sometimes been displayed as trophies, eaten, or converted into jewelry. Genitals aren’t the only limbs to have been removed over the years. Fingers and toes, tongues, breasts, eyes, ears, lips, nipples, noses, kneecaps, fingernails, eyelids, skin, and bones have all been forcibly removed over years by governments exacting punishment. Aside from the removal of genitals, flaying is probably the worst of the bunch. That’s when you beat somebody so hard that their skin comes off.

I had a lot of fun writing this, and I suspect my ever-so-patient editor had a lot of fun reading (and editing) it. I hope you enjoy it too! Here’s the rest of it.

Courts as Modern Civic Churches?

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Ottomanism, Nationalism, Republicanism IV

The previous post in this series covered the early stages of the formation of the Republic of Turkey out of the debris of the Ottoman state on the basis of ethnic nationalism combined with republicanism. Ottoman reformers were influenced by the western model. The new republicanism expressed itself in the forms of constitutionalism and representative democracy on a strictly western model, with an elected national assembly, a prime minister responsible to the assembly, and a president elected by that assembly. This post continues with an account of the early Republic which is mainly descriptive and with the aim of more analytic and evaluative comments in later posts in this series.

The nature of the fledgling state was very French influenced, in that it was a very unitary state with a very assimilationist attitude towards non-majority cultures and languages, along with a project for creating citizens of an enlightened republic. The comment of the 19th century Piedmontese-Italian politician Massimo d’Azeglio, ‘we have made Italy, now we must make Italians’ applies in a more radical way to Atatürk’s Turkey, who was someone of much more radical republican inclination than d’Azegio. Roughly speaking the work of French republicanism and reformism from 1789 to the 1920s was squeezed into Atatürk’s period of leadership, from 1919 until his death in 1938.  For this reason, the Kemalist program is sometimes referred to as Jacobin in Turkey.

Sharia law was abolished and previous adaptations from western law were turned into the complete incorporation of the Italian criminal code and the Swiss civil code as Turkish law codes. The first republican constitution made reference to Islam as the language of the state, but from the beginning it was the intention of Atatürk (who in Enlightenment style was a deist) and his associates to weaken the role of religion in public life, as in France. The laicist ambition became more explicit over time and mosque was separated from state. The Ottoman Empire, particularly in its later centuries, was regarded negatively as non-Turkish and decadent. State education reflected this along with positive attitudes towards science and the modern. Co-education of the sexes became normal.

The language itself was transformed, as the Ottoman use of the Arabic alphabet was replaced by a version of the Latin alphabet for a language that was sufficiently changed in both grammar and vocabulary to become a distinct language. Persian and Arabic grammatical influences were removed along with many words from the Persian and Arabic languages. New vocabulary was based on old Turkish roots going back to central Asia. Surnames for Muslims were legally enforced for the first time. President Mustafa Kemal (Kemal is a name given by his school teacher, according to Ottoman Muslim practice of the time) became the first person to receive a surname under this law: Atatürk.

Religion was not just pushed out of the public sphere, as the state sought to reduce the general social influence of religion, prohibiting religious brotherhoods and saints’ tombs. A religious affairs ministry was set up to regulate Sunni Islam, controlling the Friday midday sermons and repressing the more radical expressions of religion. Civil marriage was made compulsory on the French model, so that religious marriages were no longer recognised.

These changes, usually known in Turkey as the Atatürk Reforms or Turkish Revolution, were accompanied by a very strong drive towards assimilation into a majority Turkish culture, as defined by the republican elite. The Kurdish language (or languages), most the Kurmanji dialect (or language) in Turkey was not made part of the education system and was actively discouraged by the state. The same applies to the Zazaki language, or dialect, of the Tunceli region which as far as I can see is more a dialect of Farsi than Kurdish (or is a language closer to Farsi than the Kurdish language, which are certainly all related).

Not surprisingly, given such radical state led changes, violent resistance and state violence to overcome resistance is a major issue at this time. In 1925 Sheik Said Nursi led a revolt of Kurds to defend religious tradition and the traditional tribal-patriarchal power structures the state was challenging. This was put down with considerable violence. A rebellion around Tunceli (which was previously known as Dersim and is still frequently referred to as such) in 1937 to 1938, was in reaction to a 1925 law requiring the dispersal of the population to ensure Turkification. The rebellion was put down with considerable counter-insurgency state violence, which killed civilians as armed rebels. In the end, the law was never enforced in Tunceli or anywhere else.

Politically, Atatürk welcomed the principle of pluralism, but was not willing to follow it in principle. At Atatürk’s own initiative a Free Republican Party was founded as an opposition to his own Republican People’s Party in 1930. The intention was that it would be a loyal opposition concentrating on economic issues, but it became radicalised beyond the intentions of its leaders as it became a gathering point for various kinds of radical opposition including religious conservatives and leftists. The party was dissolved in the same year and the Republican People’s Party was uncontested in national elections until 1946 and first conceded electoral defeat in 1950.

Ottomanism, Republicanism, Nationalism I

The Republican experiment in Turkey goes back formally to 1923, when Mustafa Kemal (later Kemal Atatürk) proclaimed the Republic of Turkey after the deposition of the last Ottoman Sultan, becoming the first President of the Republic after holding the office of Speaker of the National Assembly. The office of Caliph (commander of the faithful), which had a symbolic universalism for Muslim believers world wide and was held by the Ottoman dynasty, was abolished in the following year. The Republic, as you would expect in the early 20s, was founded on intensely nationalistic grounds, creating a nation for Turks distinct from the Ottoman system which was created in an era of religiously defined and personalised rule rather than ethnic-national belonging.

The move in a republican-national direction can be taken back to the Young Turk Revolution of 1908, which itself put down a counterrevolution in 1909, and might be taken as a model for current political divisions (in a qualified clarification through simplification manner). The name rather exaggerates the nationalist element of the revolution. The governments which came after 1908, ruling under an Ottoman dynasty reduced to a ceremonial role, were torn between Turkish nationalist, Ottomanist, and Islamist replacements for the personalised nature of Ottoman rule.

In this context Ottomanist refers to creating the idea of an Ottoman citizenship and shared institutions rather than restoring the political power of the dynasty. Variations on these ideas include Pan-Turkism/Turanism (the unity of Turkish peoples from the Great Wall of China to the Adriatic Sea) and a Dual Monarchy of Turks and Arabs modeled on the Habsburg Dual Monarchy of Austrians and Hungarians (that is the Habsburgs were Emperors of Austria in the Austrian lands and Kings of Hungary in the Magyar lands).

The move away from a patrimonial state based on the hereditary legitimacy of dynasties, who were not formally restricted by any laws or institutions, goes back to the Tanzimat edict of 1839, issued by Sultan Abdulmejid I in 1839, establishing administrative reforms and rights for Ottoman subjects of all religions. This might be taken as providing a model of moderate or even conservative constitutional reformism associated with the Young Ottoman thinkers and state servants. It has its roots in the reign of Mahmud II. Mahmud cleared the way for the reform process by the destruction of the Janissary Order, that is the military corps which had expanded into various areas of Ottoman life and was an important political force. The Tanzimat period led to the constitution and national assembly of 1876, which was suspended by Sultan Abdul II in 1878.

Abdul Hamit carried on with administrative reforms, of a centralised kind which were seen as compatible with his personal power, accompanied by war against rebellious Ottoman subjects of such a brutal kind that he became known as the Red Sultan. His status has been greatly elevated by President Erdoğan who evidently wishes to see himself as a follower of Abdul Hamit II, rather giving away his tendency to regard democracy and constitutionalism as adornments to be displayed when they can be bent and twisted to his end, rather than as intrinsic values. The brutality of Abdul Hamit II, the violent reactionary, was foreshadowed in the reformism of Mahmud II. His destruction of the arch-conservative corps of the Janissaries was a highly violent affair in which an Istanbul mutiny provoked by Mahmud was put down through the execution of prisoners who survived the general fighting.

In this sketch, I try to bring out the ways in which the Ottoman state used systematic violence to reform and to push back reform, when giving rights and when taking them away. There is no Ottoman constitutional tradition respecting the rights of all and the pre-republican changes were just as violent as the most extreme moments of the republican period.

The ‘millet system’ of self-governing religious communities under the Sultan was a retrospective idealisation of ways in which the Ottomans accommodated religious diversity, at the time the capacity of the state to have legitimacy over non-Muslim subjects was declining. Serbia started revolting in 1804, leading to self-government within the Empire in 1817, on the basis of national post-French Revolution, not the ‘millet’ tradition rooted in classical Muslim ideas of ‘protected’ minorities. The strength of modern nationalism in the Ottoman lands is confirmed by Greek Independence, internationally recognised in 1832, following a war in which western educated Greeks familiar with ideas of nationalism and sovereignty provided the ideology.

The republican national tradition in Turkey is sometimes seen as a fall away from Ottoman pluralism and therefore as regressive. The ‘regression’, as in the influence of nationalism and reconstruction of the Ottoman state through centralisation and centrally controlled violence, actually goes back much further. The Ottoman state was not able to find ways of accommodating the aspirations first of non-Muslim subjects then even of Muslim subjects outside Anatolia and Thrace. In this process the Ottoman state was step by step becoming what is now Turkey, based on the loyalty of mostly ethnic Turkish subjects, including Muslim refugees from break-away states who fled into Anatolia, and to some degree on the loyalty of Kurds in Anatolia to the Ottoman system. Antagonism towards Ottoman Armenians was one part of this.

To be continued