The Relevance of Legitimacy in the Exercise of Political Power

7. It supplies the ground of political obligation

If a regime is legitimate, its commands generate a duty to obey. If it is not, the citizen's position changes completely, and the whole of Module II follows from that change.

What its absence looks like

Rising cost of enforcement. More police, more prosecutions, more force, for the same level of compliance.

Evasion rather than defiance. People do not resist, they avoid: taxes go unpaid, rules are ignored where nobody is watching, the informal sector grows.

Withdrawal. Turnout falls, offices go unfilled, institutions stop being used.

Reliance on other legitimating claims. A government losing its electoral legitimacy will reach for performance, for tradition, for a national emergency or for an external enemy.

Then a legitimacy crisis, in which the population no longer accepts the arrangement as rightful. Jurgen Habermas's term for the modern form of this is a legitimation crisis: a state which has taken responsibility for economic outcomes and welfare comes to be judged on them, and when it cannot deliver, the deficit is transferred from the economy to the political order itself.

The Indian case in which the two came apart

Facts. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, began as an election petition. The Allahabad High Court set aside the Prime Minister's election from Rae Bareli on the ground of corrupt practices. While the appeal was pending in the Supreme Court, Parliament enacted the Constitution (Thirty-ninth Amendment) Act 1975, inserting article 329A. Clause (1) provided that the election of a person holding the office of Prime Minister could not be called in question except before an authority Parliament might set up. Clause (4) declared that such an election, if a court had already declared it void, should continue to be valid in all respects, and that the court's order and the findings on which it rested should be deemed always to have been void. Clauses (5) and (6) carried the scheme into pending appeals and gave the article overriding effect.

Held. The Supreme Court struck down clause (4) of article 329A in its entirety. Democracy is a basic feature of the Constitution and free and fair elections are part of that democratic structure, so a provision that simply declared valid an election which a court had found invalid for corrupt practices damaged an essential feature and was beyond the amending power. The Court held further that the constituent power is legislative in nature and cannot exercise judicial power: validating one particular election by fiat, without laying down any law by reference to which validity could be judged, was the exercise of a judicial function by an amending body. It found the clause inseverable, so no part of it survived. The election itself was then upheld on the merits by applying the Representation of the People Act as amended.

Why it matters here. Everything the government did was done with the votes it had, in the form the Constitution provides for amendment. It was, in that sense, an exercise of legal power. What it lacked was legitimacy: a provision that declares its own leader's election valid by deeming a court's finding never to have existed cannot be justified in terms that the people who are supposed to elect governments share, which is Beetham's second condition failing while his first appears to be satisfied. The case shows three things a student should take from it. Legality and legitimacy can be separated, and a government under pressure will separate them. A legitimacy crisis in a constitutional state is fought in institutions, here in a court. And the resolution was itself a claim to legitimacy: the Court did not assert power, it asserted that some things are beyond the reach of any majority.

A worked example

Two governments each impose a sudden restriction on movement during an epidemic.

The first has been elected recently, publishes the medical advice it acted on, has its measure debated in the legislature, allows it to be challenged in court, and sets a date on which it expires. Compliance is high, complaints are loud, and almost nobody has to be prosecuted. The cost of the measure to the state is the cost of announcing it.

The second issues the same restriction by an order nobody may see, without a legislature sitting, with the courts not functioning, and with no end date. Compliance is high in the first fortnight, because people are frightened, and then falls. Enforcement moves from persuasion to fines to force. Within a month the government is spending more on enforcing the restriction than on the epidemic.

The measure was identical. Everything that differed was legitimacy, and legitimacy turned out to be the whole of the difference between a rule that worked and a rule that had to be imposed.

Distinctions that carry marks

What this topic is NOT

Legitimacy is not a substitute for power. A legitimate government still needs police, courts and revenue. What legitimacy does is reduce how often they must be used.

It is not the same as being liked. Governments are routinely unpopular and legitimate at the same time.

It is not conferred once. It is renewed continuously, by elections, by the courts, by the ordinary experience of citizens dealing with the administration.

Its loss is not always visible. It shows first in evasion and withdrawal, which look like apathy, long before it shows in protest.

Quick revision

1. Legitimacy converts power into authority, which is the master function.
2. It makes government affordable: no state can compel a population its own size.
3. It lets a government impose burdens and survive unpopular decisions, because compliance is detached from agreement.
4. It makes the transfer of power peaceful, which is the achievement least noticed and most missed.
5. It stabilises the system: a legitimate order loses governments, an illegitimate one loses itself.
6. It supplies the ground of political obligation, which is the bridge into Module II.
7. Loss shows as rising enforcement cost, evasion, withdrawal, and a reach for other legitimating claims; then a legitimation crisis, Habermas's term for the modern form.
8. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: clause (4) of article 329A struck down; free and fair elections part of the democratic basic structure; the constituent power cannot exercise judicial power.

Test yourself

1. Why is legitimacy relevant to the exercise of political power? Because it converts power into authority and so secures compliance that is voluntary and general. That makes governing affordable at a scale no coercive apparatus could reach, allows a government to impose necessary burdens and to survive decisions large groups dislike, makes the transfer of office peaceful, keeps the constitutional order standing when a particular government falls, and supplies the ground on which citizens owe any obligation to obey at all.

2. "Legitimacy makes government affordable." Explain with reference to India. India's population exceeds a hundred crore and its police and armed forces number a few tens of lakhs. If even a small fraction of the population had to be individually compelled to obey the ordinary law, the enforcement machinery would be overwhelmed within days. Government on this scale is possible only because almost everyone complies almost always without anyone being sent to make them, and that voluntary compliance is exactly what legitimacy produces.

3. What are the symptoms of a loss of legitimacy? The cost of enforcement rises for the same level of compliance. Evasion rather than open defiance spreads: taxes go unpaid and rules are ignored wherever nobody is watching. Participation withdraws, so turnout falls and institutions stop being used. And the government reaches for substitute claims, resting on performance, on tradition, on an emergency or on an external enemy. Only later does this appear as open protest.

4. State the facts and holding of Indira Nehru Gandhi v. Raj Narain, and say why the case belongs in this topic. The Allahabad High Court set aside the Prime Minister's election for corrupt practices. Pending appeal, Parliament inserted article 329A, clause (4) of which declared such an election to continue valid and deemed the court's order and findings always to have been void. The Supreme Court struck clause (4) down in its entirety: democracy is a basic feature, free and fair elections are part of it, and the constituent power, being legislative, cannot exercise judicial power by validating one election without laying down any law. It belongs here because legality and legitimacy were visibly pulled apart: the amendment had the votes and the form, and lacked any justification in terms the electorate shared.

5. What is a legitimation crisis? Habermas's term for the modern form of a legitimacy crisis. A state that has taken responsibility for economic outcomes and for welfare comes to be judged on them, so an economic failure it cannot resolve is transferred upward and becomes a failure of the political order itself. The distinguishing feature is that the deficit begins outside politics and ends by attacking the acceptance on which the political order rests, which is why no exercise of power can resolve it.