India's Supreme Court is raising fundamental questions about the rule of law in a democracy. In a true democracy, every human being, whether she or he has a crore or none, or a formal, higher, education or not, has an equal vote with all others, and all voices must be heard while framing laws. In a good democracy, tribals who own no property, or even primary school education, must get justice when their rights, and the natural environment on which they depend for their livelihoods, and their lives, is trampled upon by corporations to improve economic efficiencies, their profits, and the country’s GDP. Their well-being suffers while GDP grows.

The Supreme Court has re-ignited a debate about capitalism versus socialism. Its curative intervention reversing the decision of an arbitration tribunal in the dispute between the privately owned Delhi Airport Metro Express Pvt. Ltd (DMAEPL) and the public sector Delhi Metro Rail Corporation (DMRC), which was already reviewed by the Court before, has upset corporate lawyers. Meanwhile, a nine-bench of the Supreme Court is re-examining its 1978 interpretation of constitutional rights to private versus public property.

In capitalist governance, each dollar gives an additional vote. In a democracy, every citizen, millionaire, or pauper, must have an equal vote. The conflict between capitalism and democracy is a conflict between two fundamental principles of governance: a conflict between property rights and human rights. The capitalist approach to PPPs (public-private partnerships) results in infrastructure which primarily serves the rich. It creates freeways, which common people riding on two-wheelers are forbidden to use, and which pedestrians cannot safely cross, to make travel quicker and safer for rich people. The rich resist tax increases to fund infrastructure for public use. They build gated communities for themselves, in which they pay for their own private services of security, and 24X7 power and water supply. They lose sight of the needs of people living outside their walls. It must be noted here that laws of inheritance of private property are founded on the primacy of property rights, rather than basic human rights.  

Property rights or natural rights

The Court’s recognition of a fundamental right of all citizens to be free from the adverse impacts of climate change (in a plea by environmentalists to protect the great Indian bustard from the encroachment of its natural habitat by companies building wind and solar farms for expanding India’s capacity for renewal energy) is taking the law further into unchartered territory. Laws based on the primacy of private property rights are antithetical to human rights and to environmental sustainability.

In capitalist economies natural capital is the property of its owner. Kings and landlords owned the land, the water and forests, and all fish and animals within their private estates. They also owned the produce of all human beings who lived and worked on their land as their serfs or their slaves. Owners who stayed on their lands and interacted with the people on it could see their forests and watch their crops grow, and their workers sweat, and sense how the system worked. Absentee landlords did not care. They wanted their profits regardless of the damage to their lands by droughts and floods and sufferings of their workers. 

The development of commodity markets, in which animals, farm produce, timber, and minerals could be bought and sold with money and prices determined by traders, converted natural capital into financial capital. Financial markets created a new class of capitalists, even further removed from reality than absentee landlords, who gauge the condition of the world from charts of how prices move in commodity exchanges and stock markets. When labour went off the land into factories, workers were paid for the time they spent in factories and what they produced during that time. Their skills and labour became commodities purchasable for a price by owners of enterprises.

Property rights is an ancient principle of economics and jurisprudence. Human rights were recognised much later with political movements, often violent, to abolish slavery, and to pay fair wages and provide safe working conditions for their workers. Gig work is the 21st century way to convert labour into a commodity again: workers on demand, payment only for the work done, and no social security. Good for business owners, but bad for humans.

Essence of democratic governance

Good governance cannot be only a government of the people (elected by them), or for the people (providing them welfare). It must be by the people too.  The rule of law and speedy justice makes countries attractive for financial investors and for common citizens. However, investors and citizens have different needs, and therefore different interpretations of law. 

Good governance and justice for all requires those who govern to continuously listen to the people. Moreover, citizens with diverse needs must listen to each other to come to a consensus about the type of society they want to create for themselves. Courts and experts within their narrow specialisations cannot do this for them.

On top of the pyramid of democratic governance are constitutionally created institutions—presidents, elected assemblies, and courts. At the bottom is the open public sphere of social media, civil society, protests on the streets, and petitions for justice from below to the institutions above. The public sphere has become more noisy and more divided with social media and online journals. The institutions on top are unable to understand and solve the many complex problems the public sphere demands that they must: climate injustice, concentration of power, inequitable growth, etc.

What democracy needs is a strong middle layer in the pyramid to hold democratic governance together. In the middle must be processes for democratic dialogues amongst citizens, in which they listen to each other’s views, and begin a process of pre-digestion to convert their contentions into consensus. The overloaded institutions on the top need this pre-digestion to enable them to understand the contours of the complex problems they are expected to find solutions for, and take decisions on behalf of all the people, that only they are constitutionally empowered to, which they seem unable to at present.

(The author is a former member of India's Planning Commission and author of several books, the latest is “Shaping the Future: A Guide for System Leaders”.  Views are personal. By special arrangement with The Billion Press)