We live in this age of the bully and a convergence of dominant forces insists that we better learn to come to terms with rough men and their rougher ways of messing up our collective arrangements. Men and women who once fashionably took pride in their cosmopolitan sophistication are now eager to place their talent and intellect in the service of these rough men and help manufacture a narrative of a ‘new India.’
And then there is Ashwani Kumar, a former cabinet minister, parliamentarian, a senior lawyer and politician, who refuses to be intimidated into conformity by the bully. His recently released book, Human Dignity – A Purpose in Perpetuity, is a collection of newspaper writings and reflections, all from the perspective of a sensitive liberalism.
This exercise has a claim on our attention because Ashwani Kumar belongs to a political party that in recent decades has ceased to engage with ideas and with men of ideas. Given this context of his political affiliation, it is all the more credible that he should have persisted in striking a high note in his public reflections and parliamentary arguments.
As a Congressman, Kumar must be a deeply disappointed man – judging from the hopes he entertained on the eve of Rahul Gandhi’s elevation as president of the Indian National Congress in December 2017. Far from heralding “transformative changes” and far from encouraging “dialogue, discussion and contestation of ideas without fear of political repercussions for those who choose to express a conscientious dissent in the face of a contrarian majoritarian view”, Rahul Gandhi has turned out to be a whimsical, moody and erratic prince. This political reality has further complicated the intellectual journey of a liberal like Ashwani Kumar, just we get reminded that ideas and ideals do flourish in a political environment.
His association with the Congress is the can Ashwani Kumar must carry; still, cumulatively these pieces do forcefully underline the nobility and high-mindedness that permeate our constitutional promises and prescriptions, as also nudge us not to concede any kind of superiority of ideas or intent to the rough men mauling our sacred covenants and compacts. The winner – in a street fight or in an electoral contest – is ipso facto not to be deemed virtuous or wise.
The longest – and, perhaps the weakest – piece in the Human Dignity collection takes up a troubling and troublesome issue of whether India had any moral and legal obligation to grant asylum to the Rohingyas Muslims of the Rakhine State of Myanmar.
As an unapologetic liberal, Kumar argues, predictably, that Article 21 contains within it “an inalienable right to life with dignity available to all individuals”, not just citizens. Hence he has no trouble in insisting that:
“In terms of the letter and spirit of jurisprudent anchored in the inviolability of human dignity, the applicable rules of international law and our civilisational ethos of universalism – the tortured Rohingyas cannot be denied asylum in India…”
The Narendra Modi government may have its own sectarian reasons to shut the door on the Rohinyas, but the liberal invocation of “the urgency of vindicating constitutional and humanitarian morality” carries little conviction in these days of inward-looking proclivities in nations, big and small.
Kumar underplays the national security concerns just as he pooh-pahs the economic costs in letting in a large number of citizens of another country who find themselves in a perilous situation.
The Indian State can claim, with some justification, that it cannot possibly be held accountable for the Rohinyas’s plight. None of its actions can be said to have contributed to their suffering. India cannot be its neighbours’ keeper. National boundaries, national laws, national compulsions, national security considerations cannot be easily wished away in the pursuit of a higher nobility, with no discernible democratic dividend for India. Legal arguments have political consequences and liberals need to pick their fights with care.
Another longish piece in this collection deals with the unsettled – and, perhaps destined to remain unsettled – role and expectation of the judiciary in the defence of constitutional rights. The nature and extent of this role also impinges on the idea of a separation of powers, and the democratic preference for an activist judiciary restraining a rampant executive.
It has remained one of the big choices the Indian polity keeps having to make and unmake: is it all that obvious that the legislatures, supposed to be representative of the popular sovereign will, can no longer be relied upon to enact wise and good laws? In that landmark Golaknath case, the Justice Wanchoo-led minority lost the argument to the Chief Justice Subba Rao-led majority. Since then, the judiciary has arrogated to itself the right to circumscribe the legislature’s law-making supremacy.
Ashwani Kumar quotes Justice J. Chelameshwar’s dissent in the NJAC case that it would be an erroneous assumption that to believe that “judiciary alone is concerned with the preservation of liberties and does that job well…”
The bottom-line remains elusive: at what point does judicial activism degenerate into judicial authoritarianism?
We all pretend that judges, especially in the higher judiciary, remain uninfluenced and uncontaminated by the context of political passions and animosities of the day. Consequently, we feel disappointed with the judiciary when its verdicts and actions do not give us political comfort or ideological encouragement. All that Ashwani Kumar allows himself to opine is that “vagaries and subjectivity discernible in the court’s judgments ill serves its purpose”.
The meditations in Human Dignity passionately ask us to believe that a liberal, humanistic, decent idea of India need not be given up without a fight, but then we are left with no choice but to ask an uncomfortable question: can liberal values and ideas be protected and preserved by illiberal politics?