Kanwar Yatra and the freedom of the sheep

The Supreme Court has stayed the directive issued by the Uttar Pradesh and Uttarakhand governments that required eateries along the Kanwar Yatra route to display the names of their owners. The petition had argued that this would generate communal tension and was aimed at creating a socially enforced economic boycott of Muslim shop owners.

We need to examine the first principles of what it means to be true to our core constitutional values. The three institutions that constitute a stable political order are the State, rule of law and mechanisms of accountability.  Of these, the State and the rule of law do not need much elaboration but accountability means different things to different people.  
In its broadest sense, accountability means that the government is responsive to what Aristotle called the ‘common good’ rather than its own interest. Mere procedural accountability is what regular free elections are all about.  However, substantive accountability would also mean the government responding to the broader interest of the society without being necessarily subject to procedural accountability (unconstrained rulers, however, may not remain responsive to the common good for too long!)
The institutions of the State concentrate power to enable enforcement of law and order.  The rule of law and mechanisms of accountability constrain this power.  A mature liberal democracy has all the three – the State, the rule of law and procedural accountability in a kind of balance.  A state without proper checks would tend towards dictatorship.  One that is weak and checked by a number of subordinate political forces is ineffective. 

If the directive of the state governments was for maintenance of law and order, were there instances of breach of order in the past on account of this issue? If it was to protect the religious sentiments of the kanwariyas, do the authorities have any idea about the sheer catholicity of the Hindu faith that allows pilgrims to Amarnath utilize the services of guides and porters who are exclusively Muslim? Or the temples across the length and breadth of India where the pooja samagri to flowers to all assorted knick-knacks for the religious tourist are sold by Muslim vendors along with Hindus? On the face of it, this sort of directive could only be to fan communal separation and was rightly stayed by the Court.
Democratic pluralists have de-emphasized mass participation while still requiring dispersal of political power. Hence, our system places power in the hands of unelected elites – the judiciary and the bureaucracy to balance out the elected legislatures who set the democratic agenda. It is because this unelected elite is not bound by the vagaries of the transient public opinion that it can check the excesses of the democratic impulses.

Hence, it is also disquieting to hear the Court ask whether the yatris who are supposed to consume only vegetarian food also had a right to expect the food to be cooked and served by only Hindus and even whether farming of the crop was to be done by members of the same community!

This prima facie sarcastic query ignores the reality that the very same Muslims who are protesting this food apartheid also expect not only their meat to be Halal certified but even things like dairy products, cooking oil, sugar, bakery items and almost anything else for human consumption including non-food items is also supposed to be Halal certified. Halal certification requires exactly the kind of condition that the Court asked about the yatris’ expectations- not only it has to be produced according to Islamic law, the entire production chain has to be manned by Muslims! The UP government had banned Halal certification for certain items for sale within the state last year and that step too had met with political criticism.

It is often erroneously assumed that principles of human behaviour can be applied across scales without any change. Immanuel Kant’s categorical imperative requires that one should behave as if one’s action can be generalized to the behaviour of everyone in all places, under all conditions. While sound in theory, it is difficult to practice.  A country is not a large city and a city is not a large family.  Since time immemorial, humans have had difficulty in scaling universalism. The ancient Greeks, who gave us democracy, treated all equally – but only their citizens.  Not the slaves or the immigrants.  In fact, the code of Theodosius deprived Roman citizens who married ‘barbarians’ of their legal rights. 

The Jews distinguished between ‘thick blood’ and ‘thin blood’.  Examples can continue ad-infinitum to the modern age: Racism and casteism at one end of the scale; clubs, societies, unions, guilds somewhere in between; and family at the other end of the scale.  To parody Orwell – we are all brothers but some are more brothers than others. Hence, we behave well, but there is a limit to scaling.  When the “we” becomes too large, behaviour degrades to fighting for oneself. It is not accidental that religions based on claim of equality are intolerant of others and religions based on tolerance of others develop inequalities within themselves.

Every liberal society therefore displays the social asymmetry where a minority ends up dictating the norms of the society.  It can be shown by a step-by-step reasoning that a small intolerant minority that is willing to sacrifice will eventually make a democratic society follow its norms.
Balancing the majoritarian impulse of the democratic processes against the insularity of the minority’s agenda to dictate terms has to be an imperative before the Court also. In the jungle, the freedom of the wolf comes at the cost of the freedom of the sheep. But the sheep that spends a life time fearing the wolf, also gets eaten by the shepherd in the end!