Does India have a strong state? Ask the average Indian, and the answer will likely be an unequivocal 'yes.' From the policeman to the politician to the bureaucrat, we remain at the mercy of its exercise of arbitrary and unaccountable authority. Corruption — recently voted India's number one problem — is a symptom of our leaders employing the state's overweening power. As is the routine violation of basic constitutional rights, be it our freedom of expression or protection from unlawful arrest. Add to this the plague of crony capitalism which requires a state that is able to transfer vast public resources to private hands without transparency or restraint.
We live everyday with the state's boot on our throat.
And yet Gurcharan Das in his new book, India Grows at Night, argues that the Indian state is not strong enough. How is this so? An essay based on the book's main thesis in Outlook Magazine reveals a confusion of categories, concepts, and institutions. Das starts out by citing Francis Fukuyama's prescription for successful liberal democracy [Read it in its entirety here]:
A successful liberal democracy has three elements, according to Francis Fukuyama in a sparkling new book, The Origins of Political Order. It has a strong authority to allow quick and decisive action; a transparent rule of law to ensure the action is legitimate; and it is accountable to the people. This was the original conception of the state as imagined by the classical liberal thinkers who inspired both America’s and India’s founding fathers.
In one fell swoop, Das conflates the rule of law with the state, a critical error that runs through the entire essay. For instance, he argues:
The rule of law in India has weakened as a result of populist and patronage politics. There is paralysis in executive decision-making, parliamentary gridlock and the courts routinely dictate action to the executive. An aggressive civil society and media have enhanced accountability in India, but enfeebled the executive. India needs a strong, efficient and enabling state. Strong, because it has independent regulators who are tough on corruption and ensure that no one is above the law; efficient in the sense that it enforces—with fairness and forcefulness—the rule of law; and enabling, because it delivers services honestly to all citizens.
The assumption here is that if the state were indeed strong — and not 'enfeebled' by parliamentary gridlock, judicial activism and an aggressive civil society — it would be efficient and enabling. But our history shows, that a strong state — say, under the authority of Indira Gandhi — has been neither. The accumulation of state power has instead led routinely to flagrant violations of the law, eroding democratic freedoms and enabling ever greater levels of corruption.
Das' solution is to add a qualifying adjective to his prescription, calling for "a strong, liberal state." But no Leviathan is by nature 'liberal,' as Thomas Hobbes reminded us over three centuries ago. It becomes so when it is subject to the "rule of law" that is separate from and greater than the state. As the New York Times notes, Fukuyama attributes the emergence of liberal democracy in England to this very distinction:
Another impediment to absolute rule in Europe, in Dr. Fukuyama’s telling, was that the concept of the rule of law emerged very early, largely because of the church’s development of canon law in the 11th century. So when strong rulers started to build states, they had to take account of the emerging codes of civil law. Europeans then developed the unusual idea that it was the law that should be absolute, not the ruler. In pursuit of this principle, the English Parliament executed one king, Charles I, and deposed another, James II. This proved a durable solution to the problem of building a strong state, yet one in which the ruler was held accountable.
Das too acknowledges this distinction — but in passing — when he writes, "The law, dharma, preceded the state and placed limits on the king’s power in pre-modern India. The king did not give the law as in China. Dharma was above the state, and the king was expected to uphold it for the benefit of the people." In modern India, however, the law has become the handmaiden to the state. Despite the countless court rulings and verdicts, the multitude of progressive laws on the books, politicians have used the immense power of the state to undermine and circumvent their authority, as opposed to implementing them.
Viewed in this context, Das' new, new epiphany seems as misguided as his older ones:
As a result, I turned from a socialist to a libertarian, passionately committed to individual freedom. I began to believe that the state was “a second-order phenomenon”, at best a protector of what people choose to do in private life and at worst capable of destroying those freedoms. I felt a laissez-faire policy with a limited government would do the least harm to human beings. Now, two decades later, I have realised that I may have been wrong. I’m now convinced that the state is of first-order importance. It can either allow human beings to flourish or it can become the biggest obstacle to their realising their potential. A laissez-faire state, like a completely free market, has never existed and so the real issue is the extent and quality of government regulation. The state achieves this primarily by guaranteeing a predictable rules-based order. My conversion came about at the seeing the nation turning middle class alongside the most appalling governance. The final blow was the economic slowdown after 2010, when India finally hit a wall we began to experience the limits of “growing without the state”.
He's wrong: Indians are not "growing without the state." We are growing in the glaring absence of the rule of law.