Electoral democracy vs constitutional democracy: Post-poll lessons

Today, such contradictions exist in Turkey, Poland, Hungary, Russia, to name just a few countries. Donald Trump also attempted something similar in the US. Differently labelled as right-wing populism, majoritarianism or illiberal democracy, the core of this politics consists of the following proposition: If we can get elections to legitimate our platform on behalf of a racial/ethnic/religious majority, we can use electoral power to attack – via legislation — the idea of minority rights and undermine – also via legislation — standard democratic freedoms such as the freedom of expression, freedom of association and freedom of religious or cultural practice. A freely conducted vote can thus be used to cripple the other freedoms that modern democracies also value.

The BJP’s victory in Uttar Pradesh (UP) belongs to this genre of democratic politics. The BJP has won a majority as an incumbent, thus receiving legitimation both for how its government functioned for the last five years as well as for the principal tropes of the election campaign. The anti-Muslim tone of Yogi Adityanath’s government did not end with the conclusion of his five years in power. Some of the themes of his election campaign were also explicitly anti-Muslim. The “80 vs 20” formulation referred to the fact that UP is roughly 80 per cent Hindu and 20 per cent Muslim. Adityanath critiqued his adversary, Akhilesh Yadav, for using public funds to build walls for Muslim cemeteries. The same was true of the “Ali vs Bajrangbali” slogan. Overall, a victorious plurality of UP’s electorate was willing to ignore Adityanath’s failure to contain the Covid pandemic, which caused enormous misery last year, and a considerable segment of UP’s youth disregarded the crushing problem of widespread unemployment. That some of the welfare schemes were popular is beyond doubt. But after all is said and done, the anti-Muslim pitch of the BJP’s UP campaign was for all to see and was embraced by even those who were not recipients of welfare benefits.

Both of BJP’s assembly victories — in 2017 and now — were supported by 40 per cent of the electorate or more, which counts for a lot in parliamentary systems. The depth of the BJP’s triumph should be clearly noted. The BJP has held on to its powerful social bloc, which has upper castes on one side and non-Yadav OBCs and non-Jatav SCs on the other. This coalition began to emerge in 2014 during Narendra Modi’s first parliamentary victory, consolidated itself in 2017, and has continued ever since. Essentially, the BJP is now getting half of the Hindu vote, which was its dream for decades. That sort of vote proportion, if maintained, can keep it in power for very long.

The triumph of such politics can now be used in three ways — in executive decrees, in legislative chambers to formulate laws, and on the street via vigilante forces. Given the intensity of Yogi Adityanath’s anti-Muslim rhetoric, UP’s Muslims have every reason to be extremely concerned. Though minority rights are enshrined in India’s Constitution, election victories can now be used to create laws, or government policies that begin to attack precisely those rights. That is one of the meanings of how electoral democracy can be a vehicle of an assault on constitutional democracy.

Generally speaking, the courts are the final custodian of constitutional proprieties in a democracy and can frustrate a legislative or executive attack on the Constitution. But that depends on whether the judiciary is willing to play its constitutionally assigned role. Judicial interpretation can go either way – in favour of the government or against it. India’s judiciary has of late — and earlier as well — been an unreliable defender of the Constitution and citizens’ rights.

Although quite prevalent today worldwide, these contradictory aspects of democracy do have older roots. We can go all the way back to some tendencies that emerged in the democracy of America’s southern states in the 1880s, which lasted till the 1960s. America’s Blacks lost their equality as well as franchise, and the courts did not invalidate a majoritarian attack on their rights. The history of 1930s Germany is also viewed as an example of how democracy undermined democracy.

If we confine ourselves to Asia after the Second World War, enough examples that are much closer to time and space can also be found. As early as the 1950s, Sri Lanka imposed a “Sinhala only” policy on the Tamil minority of the country. By the 1960 and 1970s, the Sinhalese majority gradually established its hegemony via electoral means, completely marginalising the Tamils. In the 1980s, a civil war was born as a consequence. In Malaysia, following roughly similar policies, the Malay majority sidelined the Chinese minority. Internal tensions and aggravations rose but, unlike Sri Lanka, a civil war did not. The minorities pursued their interests by entering into coalitions with political parties within the larger parameters of the polity.

That is now perhaps the best option for UP’s Muslims and the political parties that seek to include their concerns and interests in their politics. They will have to find a way to wean away some fragments of the hegemonic social block the BJP has created. Caste was always viewed as the biggest obstacle to Hindu unity. Defying this conventional belief, the BJP has managed to create a powerful cross-caste alliance in the service of Hindu nationalism. Which groups to wean away from the BJP’s social block is now the biggest challenge for secular politics.

Jinnah used to say Muslims would not be secure in a Hindu-dominated India and, therefore, a Pakistan was needed. The argument was wrong for nearly seven decades after independence. It is now beginning to acquire a ring of truth. But democratic truths are fundamentally open-ended. Political struggles can alter them.

This column first appeared in the print edition on March 12, 2022 under the title ‘Democracy vs democracy’. The writer is Sol Goldman Professor of International Studies and the Social Sciences at Brown University