(Chitransh Bhansali is a second year student at National Law Institute University. Devansh Dev is a second year student at Kirit P. Mehta School of Law.)
Featured Art: ‘Village Corner’ by Camille Pissarro
Introduction
The concept of political legitimacy is integral to any modern democratic structure. One of the most crucial factors of any democratic-political system is the citizens’ voluntary acceptance and recognition. This happens when the citizens believe that the decisions taken by authority conform to the values and beliefs of the society. A political system cannot run on the force of power and coercion; every legitimate authority requires consent and mutual understanding of its citizen. As Rousseau pointed out, no ruler can maintain his position, and no political system its stability, until “force has been transformed into right and obedience into duty”.[i]
When a person thinks that a political order is legitimate, they try as a moral obligation to obey the order. In a legitimate political structure, authority’s decisions are accepted and obeyed because they have the feeling of being justified by principles common to both who command and those who obey. Authorities that lack legitimacy allot more resources to maintain the status quo for their rule and less to effective governance, making the people lose faith in the authority and make them vulnerable to overthrow or collapse.
Max Weber, in his book The Theory of Social and Economic Organization, lays down three types of legitimate authorities based on: rational grounds, traditional grounds (perspective theory), and charismatic grounds.[ii] However, political legitimacy takes different forms, and different forms of legitimacy depict different requirements and justifications for their command. It also portrays what the needs and concerns among the citizens are. Even in India, on traditional grounds, legitimacy and authority have been given to the Constitution.
Modern Political Structure
A political structure becomes legitimate when its authorities believes that – whether because of ideological solidarity, patriotism, nationalism, or good governance, a state has the right to exercise authority in its domain. In the modern age, most of the states have adopted this form of constitutional legitimacy.
In Legitimacy and the Constitution[iii], Prof. Richard lays down that the constitution should be recognized as morally legitimate, as the establishment of the constitution arises from the facts that exist, that are accepted as laws, that are reasonably just, and that agreement to a better constitution would be difficult if not impossible. It also leaves room for further modifications.
While the constitution has several inherent societal values as the basis for upholding the rule of law, it also shows a radical reform in the state and social order structure. The constitution makers need to keep a steady balance between the traditional and rational grounds.
The Indian Scenario
To draft the constitution in India and derive a sense of constitutional legitimacy, a Constituent Assembly was formed under the Cabinet Mission Plan of 1946. To garner the public’s acceptance, the assembly had proportional representation from the provincial legislatures, the princely states, and had prominent public figures. They conducted 12 sessions and several debates and discussions were done to create the final draft of the constitution. The constitution enjoyed a great level of legitimacy in the eyes of the masses, as just its preamble assures its citizens justice-social, economic and political; liberty of thought, expression, faith, belief and worship, equality of status and of opportunity, and promotion of among them all; fraternity assuring the dignity of the individual and the unity of the nation. The spirit represented in the preamble is further embodied in the chapter on Fundamental Rights and Directive Principle of State Policy.[iv]
The Legitimacy Gap
Max Weber’s idea of legitimacy involves a perplexing situation in present-day political theory. The most well-known grievance is that by his initiative to build a helpful idea for observational exploration, Weber contorts the basic significance of legitimacy. The idea should appropriately mean a regulating assessment of a political system: the accuracy of its strategies, the legitimization for its choices, and the reasonableness with which it treats its subjects. According to him, in any case, legitimacy no longer speaks to an assessment of a system; in reality, it no longer alludes legitimately to the system itself. Or maybe, it is characterized as the conviction of residents that the system is, to talk around and around, genuine. Legitimacy becomes, for Weber, only a question of truth, the way that residents hold a specific conviction.
There are two reasons for this outcome. One is that Weber has an over the top interest with power and security; the other is that his inflexible adherence to the fact-value distinction drives him to refashion the idea of legitimacy as per norms of logical legitimacy. Neither clarification, notwithstanding, appears to be totally satisfactory. The first is hard to accommodate with Weber’s merited standing for an insightful scholarship. The second neglects to clarify why the inconvenience of the reality esteem division ought to of itself lead to the virtual recognizable proof of political request and legitimacy. Indeed, even with the reality esteem division, Weber’s position could in any case have the assets to dodge such a minimization. More significant, most present-day regularizing originations of legitimacy have solid popularity based part, which implies that the genuine convictions and estimations of citizens must be considered. On the off chance that the Weberian recognizable proof of legitimacy and soundness is the unavoidable cost of introducing an authentic part into the thought of legitimacy, at that point even the standardizing origination faces challenges that request further explanation.
The Constitution is used as a supreme commandment, which lends legitimacy to all subsequent laws and institutions. However, the “formation of the constitution itself is necessarily an extra-constitutional, or an unconstitutional process”. The reason behind is that a constitution cannot effectively “give birth” to itself. Thus, this gives rise to a “legitimacy gap”.[v] However, in India, the legitimacy gap is not rooted in any one source, but rather it is derived or obtained from various sources driven from the traditional order. There still arise some stumbling blocks in this form of political structure as well.
Sovereignty and Government
One of the most interesting insights is the idea of separation between sovereignty and government. It is contended that even though government should reflect sovereignty, it should never be combined with sovereign and be limited to only find the best form to reflect it. Democracy is said to be a form of government for gods, not for humans. Therefore, we come to the conclusion that legitimacy of sovereignty is different than the legitimacy of government and should be left that way. In simpler words, if the former is initial legitimacy and the latter is derived legitimacy then initial legitimacy would be the basis of the principle while derived legitimacy would refer to an actual implementation of the same, being in the limit of the principle.[vi]
Undoubtedly, the Indian state intermittently experiences an intense emergency of legitimacy (legitimation emergency). Democracies depend, for their endurance, on open endorsement and assent. Legitimacy acquires when individuals legitimately feel that enough is being done by the state to convey what they require and want. It is missing when the gap increases between individuals’ own desires and the genuine advantages got by them. Legitimation emergency at that point shows itself in the consistent gathering of public objections and complaints, in developing discontent, far and wide disappointment and famous dissent; when enormous quantities of individuals start to feel that they are exploited by their political framework.
We look upon the three particular instances of the legitimation emergency of democracy in India. The first was emergency of procedural legitimacy. For long, our leaders were chosen by a method that was neither free nor fair. Targeted violence regularly produced dread among marginalised individuals; through booth capturing, women, Dalits, minorities, and poor people for the most part were kept from casting a ballot or constrained to decide in favor of a candidate not of their decision. The increase in power of the Election Commission and the sending of Central paramilitary powers have, to an enormous degree, beaten this legitimation emergency.
Nonetheless, a second emergency of legitimation was preparing at the same time. The electorate trusts that those picked by free and reasonable decisions would precisely speak to their inclinations and convey on their requests. At the point when this doesn’t occur, popular governments dive into what can be call an emergency of authentic legitimacy. In India, individuals endeavoured to determine this emergency by governmental issues of network based characters. Various gatherings, especially the Dalits and the OBCs, chose to decide in favour of individuals from their own separate ranks, who they instinctively believed, the individuals who reflected them.
Be that as it may, at any rate since 2011, the disappointment of “mirror representation” has pushed India to a more profound addressing of the popularity based framework itself. This can be said as the emergency of majority ruling government’s ethical legitimacy. A sentiment of treachery by individuals from one’s own locale is joined by extreme disappointment with the whole equitably chose foundation. Individuals progressively feel that while the Indian economy is developing quickly with more cash flowing in the framework, its majority is redirected and landing strangely in the lap of an exceptionally minuscule high class. All ideological groups appear to be polluted: the Congress, the Bharatiya Janata Party, and regional parties, for example, the Bahujan Samaj Party, the Samajwadi Party, and even the Communist Party of India (Marxist). From that point forward, the electorate has urgently searched for some political organization outside the set up request to fix the framework.[vii]
Conclusion
We have talked about how the political structure has refined with due course of time and how it has impacted our country. The discussion regarding legitimacy gap of the constitution becomes vital because not only it raises questions on the functioning of the government but also the moral obligation of the representatives that have been elected in a system which targets individuals’ rights and choices. Social theories present a model of people which needs to be defined by the demise of divine or natural law which makes legitimacy an imminent concept. We have also seen that the authority cannot be external and thus makes it an internally developed system.
In any secular state, any form of legitimacy needs to be referred to the people and their will or choice. The main issue with legitimacy is related to the definition of people, which can be a source for it or a source of law. As a consequence, the model of the mass becomes critical to ensure a smooth functioning of a secular state. This can be seen as the basis of constitutional law of most countries around the world
[i] The Social Contract , Bk. I, Ch. 3.
[ii]Max Weber, The Theory of Social and Economic Organization 328 (New York: Free Press 1947).
[iii] Richard H. Fallon, Jr, Legitimacy and the Constitution, 118(6) Harvard Law Review 1787, 1792 (The Harvard Law Review Association 2005).
[iv] S.Waseem Ahmad and M. Ashraf Ali, Social Justice and the Constitution of India, 67(4) The Indian Journal of Political Science 767-782, 767 (2006).
[v] Brian Chau, Constitutional Legitimacy: An Analysis under Max Weber’s Traditional Sources of Authority, SSRN (last visited Nov. 10, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192172.
[vi] Vincent Depaigne, Legitimacy Gap: Secularism, Religion, and Culture in Comparative Constitutional Law (2017)
[vii]Rajeev Bhargava, The legitimation crisis of Indian democracy, The Hindu, (last visited Nov 16, 2020).https://www.thehindu.com/opinion/columns/the-legitimation-crisis-of-indian-democracy/article17759142.ece.
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