Indians live, “fanatically at odds, with their different diets and their incompatible gods”, between frontiers delineated by ragged lines on a map: the Line of Control, the Radcliffe Line, the Line of Actual Control, the Actual Ground Position Line in Siachen, the Durand Line. To speak of the Indian state is to legitimize an authority which can use force on all persons that live between the glacier and the ocean. It means accepting, in practice if not in theory, an authority that has executed guerillas, held cities hostage, crushed rebellions. The existence of a state indicates the existence of “a military power resting on force, so centralized, so necessarily heedless of the individual.”1
Eventually, states are made to realise the foolishness of using the lathi and the rubber truncheon to do more than maintain a brutal social and political order. Only so many peasant rebellions can be crushed, only so many famines weathered, only a finite number of hangings under the banyan tree can occur before state authority thinks “we cannot possibly go on like this.” Forget democracies; kings realise, sooner or later, that “[y]ou cannot threaten any individual and escape the consequences.” Or they were made to realise it, as King John was made to realise it by rebellious barons. They were made to make concessions, as he was made to do in the meadow which is called Runnymede. Or they lost the Mandate of Heaven, faced rebellion; heads, spikes, walls.
The kings sometimes won these battles, but it became increasingly clear that arbitrary power came at too high a cost. To justify their power and retain a mandate, they acquired new bases for legitimacy: preventing and punishing crime, producing food, liberating the poor, curing disease, settling disputes. Even these new bases of legitimacy, they later discovered, are counterintuitively made harder by having arbitrary, unbounded power. It is harder to perform certain state functions by the sword. The unity of action and vigour and ambition that animates the executive is unsuited to a body that makes laws or decides disputes. We discovered the separation of powers, principal-agent problems, coordination problems, rules-based systems, guided discretion, democracy, independent courts – major leaps forward in the technology tree of statecraft.
What did these theorists believe, at least in the parliamentary system? They believed in taming power by requiring it to have an internal coherence. Power flowed from the people to Parliament, which makes law. The government, the brutal state which in another life crushed rebellions and executed guerillas, was tamed and made a creature of Parliament. It was to obey Parliament’s commands, live by the rules Parliament set. It had the power to enter a home or arrest a person or tax a holding only to such a degree as Parliament permitted. And individuals could go to court, with the vagrant and brutal power of the state arrayed against them, and say “you have no statutory authority”, and if a judge (a lawyer, a man committed to this theory of government) commanded it, the brutality of the state would recede.
In 1787, the Americans went even further in Philadelphia. They had a more structural, a more sophisticated theory of the human desire for power, of ego and ambition. They created three strong branches of government which tended naturally to conflict among themselves, but gave each of them “the necessary constitutional means and personal motives to resist encroachments of the others” (Federalist No. 51). They made the “provision for defense” commensurate to the “danger of attack.” They desired that “[t]he interest of the man … be connected with the constitutional rights of the place.”
At Council House on Raisina Hill in 1950, India adopted a charter that divided up arbitrary authority into branches of government and secured rights to individuals and communities in perpetuity. This is where the tale becomes a tragedy, or a work in progress, depending on how chronocentric you are. These innovations in political theory were hard to internalise, and so the Indian state did not. At best, it internalised them in a maudlin, superficial way. At worst, it remained, at once, centralised, disorganised, and brutal.
India is a country where Supreme Court judges write brimming, saturated paeans to liberty while the police, as a matter of course, beat citizens with little to no provocation. It is a country where the typical regulatory environment is a feudal one, “where regulators lord over practitioners, threaten them, extort from them…” It is a country where there is still no distinction between an administrative diktat and a rule made under a statute. The standard textbooks and commentaries describe the area of law dealing with the distinction between administration directions and statutory rules as “unsatisfactory.”2
Those of us who have an emotional attachment to the rule of law, to a government of laws and not of men, find this dispiriting. But we are also patient. The Constitution of India is a flawed document — only as flawed as the people who made it, only as flawed as the population that is supposed to live by it. But it has created in India an order that has survived for generations, “longer than anything ever lasts.”
And we are still young.