Professional Documents
Culture Documents
Concept and Philosophy of Democracy in India
Concept and Philosophy of Democracy in India
Concept and Philosophy of Democracy in India
PHILOSOPHY OF
DEMOCRACY IN INDIA
20
CHAPTER-2
CONCEPT AND PHILOSOPHY OF DEMOCRACY IN
INDIA
“To safeguard democracy the people must have a keen sense of independence,
self-respect and their oneness, and should insist upon choosing as their representatives
only such persons as are good and true.”
Mahatma Gandhi
Long back, former President for the United States of America, Abraham
Lincoln said, “Democracy is a government of the people, for the people, and by the
people.” The term ‘democracy’ comes from the Greek word demokratia which means
“rule of the people”. It was coined from two words: demos that means “people” and
Kratos which refers to “power”. That is, in a democracy the power rests with the
people. This meaning is based on the experiences of the governments that existed in
some of the Greek city-states, notably Athens. And, today also, democracy is defined
as a form of government in which the supreme power is vested in the people and
exercised by them directly or indirectly through a system of representation usually
involving periodic free elections.1
Democracy has been defined in many ways. Bryce believes that “Democracy
really means nothing more or less than the rule of the whole people, expressing their
sovereign will by their votes”.
1
Raphael Sealey, A History of the Greek City States, University California Press, Berkeley, CA, USA,
1976)
21
a democracy, we mean not only that its political institutions and processes are
democratic, but also that the Indian society and every Indian citizen is democratic,
reflecting basic democratic values of equality, liberty, fraternity, secularism and
justice in the social environment and individual behavior.
In these times when from Suez to the South Pacific, democracy apparently
faces a crisis, it is more vital than every citizen understand the real meaning and the
true role of democracy in the free life and its practical applications, with special
reference to India. By and large, the key to Asia lies in India-in the success of her
experiment in democracy.
In order to understand properly what democracy means one most have a clear
idea of all that it does not mean. Democracy, by its very definition, excludes an
official, all-embracing ideology; a single mass party led typically by one man; a
system of terroristic police control; party control of the media of mass
communication; party control of the army and of arms; and party control of the
economy.
(a) the right to free expression of opinion and of opposition and criticism of the
Government of the day;
(b) the right to change the Governments of which the people disapprove through
constitutional means;
(c) protection from arbitrary interference on the part of the authorities, primary
safeguards against arbitrary arrest and prosecution;
(d) fundamental rights of citizens, subject to their duties to the state;
(e) the right of minorities to be protected with equal justice under law;
(f) equal treatment and fair play for the poor as well as the rich, for private
persons as well as Government officials;
(g) The right to hold unpopular or dissident beliefs.
22
The rights just enumerated are the benefits to be derived from a democracy.
That is why not only political theorists and writers but also great political statesman
like Jefferson and Churchill laid the greatest stress on the positive aspect of
democracy. Equal consideration for all, equal opportunity for all, equal freedom of
expression and association for all-these are obviously the content of democracy and as
Nehru pointed out in his book, “Glimpse of World History” (Vol. 2, p. 1474):-
“Democracy, if it means anything, means equality; not merely the equality of
possessing a vote but economic and social equality.”
Political freedom alone is not enough. A great democrat aptly said: “The only
remedy for the shortcomings of democracy is—more democracy.” Indeed democracy
is to be valued only when it grants equality of opportunity. Prof. Ralph Barton Perry
of Harvard University discusses in his book, “Our side is Right”, the connotations of
democracy and points out that the core of modern democracy consists in an attitude
which comprises three things:
a disinterested acknowledgement of all human claims. Lord Bryce also laid stress on
the dignity of the individual. Basic individual rights are essentials of democracy. The
dictatorship of the party calls for the definition of national interest in tune with the
interest of party leader’s that democracy. True democracy should give that frame of
life within which “lndividual men and groups of men can develop most richly and
harmoniously their gifts and inclinations”.
The greatest glory of democracy in the opinion of its votaries does not flow so
much from its own inherent excellence as a form of Government, as from its influence
in elevating the masses of the people, developing their faculties, stimulating interest
among them in public affairs, and strengthening their patriotism by allowing them a
share in its administration.
Modern democracy takes the form of a republic (as in the U.S.A. and India) or
a constitutional monarchy (as in Britain), the basic principle being always the
sovereignty of the people, expressed generally by the will of the majority.
24
The ideal of popular Government is based on the theory that the people in a
state are sovereign, and that all powers of Government emanate from them. Hence
Herodotus, an early Greek writer, defined democracy as that form of Government in
which the supreme power of the state is vested in the members of the community as a
whole. This is still the best definition of democracy, and has been accepted as such by
Lord Bryce and other eminent modern writers. In his great work, ‘Modern
Democracies,’ Bryce defines democracy as the form of Government in which the
ruling power of a state is legally vested not in any particular class or classes, but in the
members of the community as a whole.
the popular election of judges and administrative officials. Therefore popular usage
considers a representative government to be one in which the legislative branch at
least is popularly elected. This is the meaning of representative democracy.
Indeed, as Norman Angell says in his book, “The Public Mind”, democracy can be
made a success only by frankly recognizing its weaknesses and by endeavouring to
steer clear of them.
Tagore observed that democracy could have full trial only when ambition was
disciplined, greed regulated and the self merged in love and service. Democracy can
be never being true in society where greed grows uncontrolled and people are drugged
26
with admiration for power politics. So it is of great importance that minds are to be
cleansed and illumined with knowledge.
Democracy must have a background and basis in these masses of the people,
in their education.
Nehru’s India to carry out economic planning within the frame of democracy, and to
seek a peaceful and humane approach to all problems, national and international.
1
Niraja Gopal, Jayal, Democracy in India, Oxford University Press, New Delhi, (2007), pp. 1-15
28
essential economic needs which would create in him a chance to develop his creative
faculties. The democratic form of government is an instrument for the development of
social and economic content, as a method of approach in the settlement of problems.
Our practice of the study and working of the democratic structure is based on the
practices prevailing in the British House of Commons but efforts have been made to
develop our own conventions in response to our distinctive conditions by keeping in
view the foundations of politics, the ideals and principles of parliamentary
democracy.
The dignity of the individual or the sacredness of the human personality is the
fundamental principle of democracy. It is the individual who sorrows and suffers, who
knows joy and sorrow, forgiveness and hatred. Even the derelicts of humanity, the
criminals and the down –trodden or outcastes-all have to draw fruits of democracy. It
is for the state to look to the well being of all classes without any distinction of caste,
creed or colour. The right of the individual to privacy and self development is one of
the cherished rights of democracy. The parliamentary democracy is the best
instrument for the ascertainment and expression of people. In India, the basic
democracy starts from the villages as the villages’ panchayats adopt the representative
system.
The divine right of the king’s dogma has been scrapped. The governments
formed by elected majority parties have no divine rights. The democratic government
run by majority is also open to grave abuses. In the words of Lord Acton, “The
government by the people, being the government of the most numerous and most
powerful class, is an evil of the same nature as unmixed monarchy, and requires, for
nearly the same reasons, institutions that shall protect it against itself and shall uphold
the permanent reign of law against arbitrary revolution of opinion.”
Dr. L. M. Singhvi has remarked that the true picture of democracy can be
gauged from the observation in the Simla Seminar on 6 September, 1969.2
Parliamentary democracy had its birth in the United Kingdom. India, having
been under the domination of Britain for a considerable period, was influenced by the
British traditions. This was the main reason for the Indian constitution to be based
upon the British parliamentary system. In the post independence period, during the
last 25 years, the principal parties to run the administration have been the politicians
on the one hand and the civil services on the other. The politicians get the mandate
from the people as they are their elected representatives to lay down the policies that
have to be followed or implemented by the administrative services.
1
R.K. Bhardwaj, Democracy in India, National, New Delhi, (1983), pp.1-3
2
Exordial Address by Dr. L.M. Singhvi, Executive Chairman, the Institute of Constitutional
Parliamentary Studies on the fourth Orientation Seminar for Legislature at Chandigarh on September 6,
1969
30
full term of his office regardless of changes in the Assembly or the Senate. Under
such conditions, the president or the Governor, as the case may be, may provide
stability to the top services of the administration which change only with change of
the president or the Governor.
(1) In practice only parliamentary democracy offers people order and freedom or
rather as much of both together as is humanly possible;
(2) Near approaches to parliamentary democracy(Mexico, Yugoslavia) offer
more order and freedom than regimes, traditional or modern, that try to be
different;
(3) Neither order nor freedom is an absolute good, indeed too much of either can
be bad;
(4) Parliamentary democracy is constitutionally plus wide suffrage. In practice,
its essential feature is that power can be transferred by elections without
violence to an open opposition. This is much more crucial than, say, honest
judges, universal suffrage, a written constitution or economic equality;
(5) It is open to anyone to attach higher value to these or other items and in so
doing one may quite logically relegate parliamentary democracy itself to a
lower place; but it is not open to anyone to deny its primary essential-that of
non-violent power transfer;
(6) When we ask the relation of economic and social variables to parliamentary
democracy, we need a political ceteris Paribas clause;
(7) Therefore the clause must concern itself primary with the possibility of non-
violent electoral power transfer.
1
J.D. Peter Wiles, “Development of Democracy”, Journal of Constitutional and Parliamentary Studies,
Vol, VI, No 1.
31
The parliamentary democracy can be more attractive than even higher levels
of income of the people. In case there is poverty and illiteracy, it becomes difficult for
the government to run smooth administration as the masses are easily exploited to
gain some political objective by interested politicians and parties. The less poor and
semi-literate also do not realize the responsibilities of government. The centre must be
made strong to control the refractory State Government. Due to ignorance of the
parliamentary procedures and the working of democratic system, lawlessness and
disorder are rampant in India.
The position has gone to such an extent that even the elected representatives in
legislatures are not fully aware of their responsibilities with the result that no
discipline or decorum prevails in the legislative bodies in the country. The question
arises whether the Indian people, placed under existing conditions, are fit to enjoy the
benefits of democracy. Prior to Indian independence and the implementation of
constitutional provisions as prepared by the Constituent Assembly, the country was
under the sway of the feudal lords, the Rajas and Nawabs. There was restricted
franchise and denial of political rights to the unpropertied or the illiterate or the
weaker sex or sections or racial and other minorities in the country. Democratic way
of set up must be accompanied by economic and social emancipation and growth
which leads to a sense of individual responsibility. Individual freedom enjoyed by the
in democracy gives opportunity for the development of each individual. This is the
indication of democratic values granted under the Indian constitution. The economic
development through human endeavor leads to real human happiness.
development. It has been observed that it is not the lack of ideas or the absence of
constitutional powers but paucity of political courage which prevents the government
from mobilizing additional resources for investment in economic development. The
fact is that the leadership of the country at the times is weak or of a wavering mind.
The democratic society owes existence to the operation of groups based upon
different ideologies. It is a healthy tradition to sustain the democratic structure and
achieve success in development on economic basis. In order to set it up smoothly, it is
essential that a functional equilibrium is maintained between the groups to keep up
the impact of technocratic and scientific revolution in the country.1
1
R.K. Bhardwaj, Democracy in India, National, New Delhi, (1983), pp. 5-8
33
hands several times due to unchecked defections thus making a mockery of the Indian
democracy.1
“Democracy is an impossible thing until the power is shared by all but let not
democracy degenerate into monocracy. Even labourer, who makes it possible for you
to earn your living, will have his share in self government. But you will have to touch
their likes, go to them, and see their hovels where they live packed life sardines. It is
up to you to look after this part of humanity. It is possible for you to make their lives
or mar their lives.”2
Democracy must, in essence, mean the art of science of mobilizing the entire
physical, economic and spiritual resources of all the various sections of people in the
service of the common good for all.3
Evolution of democracy is not possible if we are not prepared to hear the other
side. We shut the door of reason when we refuse to listen to our opponents or, having
listened, make fun of them. If tolerance becomes a habit, we do not run the risk of
missing the truth.4
The democracy cannot be worked by twenty men sitting at the centre. It has to
be worked from below by the people of every village.6
1
R.K. Bhardwaj, Democracy in India, National, New Delhi,( 1983) p. 9
2
Young India of December 1,1927
3
Harijan of May 27, 1939
4
In the Harijan of May 31, 1942
5
Autobiography or The Story of My Experiment with truth
6
In the Harijan of September 29, 1946
34
In the real democracy people learn not from books, nor from Government who
are in name and in reality their servants. Hard experience is the most efficient teacher
in democracy.2
1
In the Harijan of September 29, 1948
2
In the Harijan of January 18, 1948
3
The First All India Seminar on Parliamentary democracy, 1956
35
4. The key element in the exercise of democracy is the holding of free and fair
elections at regular intervals enabling the people’s will to be expressed. These
elections must be held on the basis of universal, equal and secret suffrage so
that all voters can choose their representatives in conditions of equality,
openness and transparency that stimulate political competition. To that end,
civil and political rights are essential, and more particularly among them, the
rights to vote and to be elected, the right to organize political parties and carry
out political activities. Party organization, activities, finances, funding and
ethics must be properly regulated in an impartial manner in order to ensure the
integrity of the democratic processes.
11. A sustained state of democracy thus requires a democratic climate and culture
constantly nurtured and reinforced by education and other vehicles of culture
and information. Hence, a democratic society must be committed to education
in the broadcast sense of the term, and more particularly civic education and
the shaping of a responsible citizenry.
13. The state of democracy presuppose freedom of opinion and expression; this
right implies freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of
frontiers.
37
14. The institutions and processes of accommodate the participation of all people
in homogeneous as well as heterogeneous societies in order to safeguard
diversity, pluralism and the right to be different in a climate of tolerance.
15. Democratic institutions and processes must also foster decentralized local and
regional government and administration, which is a right and a necessity, and
which makes it possible to broaden the base of public participation.1
If we trace the historic background, we find that our Vedas refer to the
democratic norms and institutions which were available in our ancient society, Rig
Veda mention two institutions, Le Sabha and Samiti. The sabha was the House of
Elders and the Samiti was the general assembly represented by common folk.
Subsequently In the post-Vedic period also, we see glimpses of Parliamentary
democracy. Gram Sabha or Gram Panchayats are the later day developments in this
respect. Thus, democratic institutions survived and the flourished in this country in
one form or the other.
Then came the British rule. The Charter Act of 1909, the Reforms Act, 1919
and the Government of India Act, 1935 paved the way for the Constituent Assembly
was set up for framing the Constitution of free India. The Constituent Assembly
consists of galaxy of persons who were giants among intellectual and who had given
everything for the cause of the Nation. They were the founding fathers of the
Constitution. They discussed and deliberated extensively upon each and every clause
of the Constitution. Therefore, India’s Constitution represents truly the secular,
socialistic and egalitarian society through democratic representative methods.
This declaration of 20th August 1917 was the basis on which the Government
of India Act, 1919 was framed. The most notable feature of this Act from the stand-
point of parliamentary democracy was that it made a part of the provincial executive
responsible to the provincial Legislature. The next step towards responsible
government was the Government of India Act, 1935. This Act was definitely an
improvement upon the system provided by the provisions of the Act 1919 in the sense
that the system of ‘Dyarchy’ was abolished in the provinces and full autonomy over
the provincial subjects was given to the Ministers who were made responsible to the
Provincial Legislature. But, both these Acts of 1919 and 1935 had imposed several
restrictions that prevented the real working of parliamentary democracy in India.
However, with the attainment of independence, The Constituent Assembly adopted
the system of parliamentary democracy in its full form and implications which has
become the focus of attention in Asia and Africa where parliamentary institution have
not had a very smooth sailing. The nature and working of parliamentary democracy in
India can be viewed from a theoretical stand point and also based on its practical
working. The theoretical essence of a parliamentary form, otherwise known as
responsible government, lies firstly in the absolute and complete control over the
executive by the Legislature. The executive must be an instrument for carrying out the
nation’s mandate and its subordination to the Legislature would follow as a logical
corollary of the fully representative character of parliamentary democracy.
Elections are the kemel of democracy; it is the game of number which ushers
in power in democracy. Democracy has been evolved as the best and most acceptable
form of governance through centuries of experience among the people who care for
human, person dignity and rights. The electoral reforms are important in
representative democracy. However such reforms cannot establish democracy.
Democracy as a word is different from democratic spirit. In the absence of democratic
climate, democratic institutions cannot survive.
5. A state of democracy ensures that the processes by which power is acceded to,
wielded and alternates allow for free political competition and are the product
of open, free and non-discriminatory participation by the people, exercised in
accordance with the rule of law, in both letter and spirit.
7. Democracy is founded on the primacy of the law and the exercise of human
rights. In a democratic State, no one is above the law and all are equal before
the law.
8. Peace and economic, social and cultural development are both conditions for
and fruits of democracy. There is thus interdependence between peace,
development, respect for and observance of the rule of law and human rights.1
1
Ahmed Fathy Sorour, Universal Declaration on Democracy, Inter-Parliamentary Council, ( 161st
session), (Cairo, 16 September 1997) pp. 4-5
41
longer prepared to concede as a legitimate goal, as the glaring chasm between the
constitutional theory and political praxis has widened beyond reasonable imagination.
But from a closer, deeper, dispassionate and objective analysis and appraisal it
appears that the remedy arrived at by the administration of such a panacea is but to
subvert the very conception and ideals of the rule of law. Therefore, an attempt at
energizing the potentially fruitful linkage between development and democracy which
holds out a ray of hope, a recipe of solution for the developing modern Nation-States,
especially when they are troubled with failures, mad with frustrations and restless
with anxieties while living up to the sky-high aspirations of their masses with regard
to the physical indicators of development. Thus, it shouldn’t be either democracy at
the cost of development, or development at the cost of democracy, but democracy
aiding and bolstering the process of development. No doubt, without people’s
participation in political and development processes in a pluralistic society like India,
we can’t hope to overcome many storms that erupt in our socio-economic spectrum
from time to time. Democracy is a political concept definitely tinged with economic
agenda. Though slow in concept and concrete action, democracy looks at economic
development as a peaceful means to uplift the masses from abject poverty,
ignominious illiteracy and debilitating disease of different kinds.
43
Our tryst with democracy is neither very old nor fully exposed to development
of the western style and speed. In our democratic set-up too many agencies are
working on a project and like too many cooks they tend to spoil the broth. Every plan
has to filter through too many people who causes delay and hence escalates costs and
confusion, if one looks at the past, which is quite an ambition. If one considers the
potential that is an apology. This cryptic assessment of our development plans,
projects and programmes is neither an exaggeration nor an uncalled for indictment of
our trust in democracy.
Thus democracy and development are conceptual cousins, because the attempt
to view them as distinct, separate, inconsistent and incompatible ideas, will serve as a
breeding and subsequently a nurturing ground of ruthless and brutal despots who by
default eat into the vitals of system.1
1
Pradeepta Ranjan, Pattanayak, Democracy and Development: Conceptual cousins or counter
Concepts, (2004), Vol. XXXI (1&2), Indian Bar Review, pp. 139-143
2
AIR 1975 SC 2299
45
had appealed to the Supreme Court against the High Court’s judgment wherein the
Supreme Court having admitted her appeal stayed the Allahabad High Court’s
judgment. But due to an apprehension of popular uproar emergency was proclaimed
under Article 352 of the Constitution on the ground of internal disturbance and
various opposition leaders were arrested. During the said period several constitutional
amendments were carried out and several provisions including Article 329A were
inserted in the Constitution by the Thirty-ninth Constitutional amendment Act.
According to it all disputes regarding election to Parliament or the persons holding
office of the Prime Minister and Speaker, shall be referred to a body, to be appointed
by Parliament. It was also made applicable to the already pending disputes before
courts. The five-judge bench held the amendment as an unconstitutional and violative
to the doctrine of basic structure or basic features of the constitution. The court held
free and fair elections are essential part of parliamentary democracy which itself is an
integral part of basic structure doctrine. The legislative judgment in clause (4) is an
exercise of judicial power without applying any law or norm. Indeed it is an irony that
Mrs. Gandhi appointed A.N. Ray, J, as a Chief justice of India superseding three
senior most judges, all of whom later resigned in protest. But even that could not save
or validate her move to make the office of Pime Minister immune from judicial
scrutiny.
The decision of the apex court in Indira Gandhi not only strengthened the
roots of democracy or parliamentary democracy but also upheld and applied the
notion or concept of rule of law. Since the Thirty-ninth Constitutional Amendment
Act was viewed as a bill of attainder and an instance of discharging judicial function
1
Kesavananda Bharti v. State of Kerela AIR 1973 SC 1461
46
by the legislative body which sought to confer immunity from being tried by the
judiciary. The constitutional amendment also intended and sought to dilute separation
of power theory arrogating unto itself the judicial power, which is not supposed to do.
Similarly the amendment also aimed to extend the jurisdiction of the courts or the
doctrine of judicial review which itself is a part of basic structure doctrine.1 Judicial
review is a basic principle or foundation of democratic governance and operates as a
check upon the exercise of legislative or constituent power of the competent sovereign
legislative body or authority. It also guarantees from being abused by the sovereign
authorities and helps to maintain democratic and civilized structure of society.
Doctrine of rule of law espoused by Dicey has become relevant and important
ingredient for legal systems. According to Dicey, supremacy of rule of law and
equality before law and equal protection of law, are too sacrosanct to be subordinated
to any authority. The Thirty-ninth Constitutional Amendment Act violated the
principle of equality of law since it intended to protect only an individual. Essence of
law lies in general applicability of law and hence it has to be made equally applicable
to all. Lon Fuller in his doctrine of internal morality which is a part of his natural law
theory, has pointed out general applicability of law as a binding and necessary
principle to be followed by the legal systems. The said doctrine of internal morality is
a kind of yardstick to determine the legality or validity of any law or legal system.
Thus the amendment was contrary to the principle of internal morality and therefore,
was not only unconstitutional and illegal but immoral also. With the emergence of
modern developed world and legal systems, Dicey’s notion of rule of law also has
undergone a change and attempts have been made to give different dimension and
interpretations to it. His theory was criticized due to its rigidity and its opposition to
concepts like delegated legislation, administrative adjudication etc. Joseph Raz2 has
pointed out eight-fold principles of rule of law which include review power of the
courts and access to them. In other words, judicial review and access to justice have
been considered and incorporated as basic principles of rule of law in modern
developed legal systems. The constitutional amendment in question had flouted both
these basic principles and hence was also contrary to the notion of modern rule of law.
1
Keshavananda Bharati, S. R. Bommai and L. Chandrakumar v. Union of India (1997) 3 SCC 261
2
“The Rule of Law and its Virtue”, Journal of LQR, 1973
47
1
Delip Ukey, Parliamentary Privileges and Democracy in India: A Judicial Perestroika, (2006) Vol. 40
(3-4), Journal of Constitutional and Parliamentary Studies, pp. 284-288
2
Parliamentary Practice (9th edn), 1976, p. 67
3
(1992) I SCC 309
4
Clause 2(1)(d)
48
party or without his voting or abstention having been condoned by the party, he shall
be disqualified from being a member of the legislature.
Article 105 and 194 of the Indian Constitution provide certain privileges to
parliament and state legislatures respectively. Article 105(1) guarantees freedom of
speech in parliament and Article 194(1) guarantees freedom of speech in State
legislature. Clause (2) of these two provisions confers immunity upon members of the
respective houses from judicial proceedings in respect of anything said or any vote
cast by them in house. It was argued that clause 2(1) (d) of the tenth schedule
restricted/curbed freedom of speech of members. The right to vote, it was said, was a
concomitant of the right to free speech guaranteed by Article 105 of the Constitution.
It was also argued that since freedom of speech in the house was a part of the basic
structure and the said provision of the Fifty-second Constitutional Amendment Act to
the extent of curtailment of freedom to vote, violated basic structure doctrine and
would be, therefore, void.
The Act sought to impose severe curbs on defections for seeking any personal
gains/except for split by 1/3rd members or merger by a political party. It is amended
by the Ninety-first Constitutional Amendment Act, 2003 w.e.f, January 1, 2004 and
paragraph 3 which said “disqualification on ground of detection not to apply in case
of split” was omitted. Para 6 declared decision of the speaker of the chairman as final
and Para 7 of the schedule excluded the jurisdiction of courts. However, the Supreme
Court upheld the Constitutional validity of the Act and schedule except Para 7. The
court said that the judicial review is a part of the basic structure and hence, exclusion
of judicial review of speakers decision tantamount to its violation. It is submitted that
the apex court’s decision in Holohan is aimed at the strengthening the parliamentary
democracy in India so that the disease of defections and politics of ayaram gayaram
could be eliminated. It is also equally important to note that finality accorded to
speaker’s decision disqualifying member/s and exclusion of court jurisdiction in
relation to it was held as invalid and unconstitutional. This decision tried to eliminate
any bias on the part of the speaker, he being a member of political party. Restoration
of judicial review of speaker’s decision will go a long way to strengthen roots of
parliamentary democracy in India.
49
However, some jurists did object to the apex court’s decision, which according
to them is wrong and would rob freedom of speech and right to vote guaranteed to
members of the Houses.1 They said: In our opinion restrictions on the right to vote
imposed by the Tenth schedule were the most objectionable ones. Freedom of speech
of a member guaranteed by Article 105(1) and immunity against civil and criminal
action for acts arising out of the exercise of that freedom are the most valuable
possessions of a member of the legislature in a democracy. Such freedom and such
immunity are granted to a member of the legislature to enable him to discharge his
responsibility towards the people whom he represents. Restricting the freedom of a
member to vote as he likes with the house in order to eliminate unprincipled
defections, was like throwing cut the baby with the bath water.
1
S.P. Sathe, Judicial Activism in India, Oxford, (2002), pp. 90-91
50
The object of the immunity conferred under Article 105 (2) is to ensure the
independence of the individual legislators. Such independence is necessary for
healthy functioning of the system of parliamentary democracy adopted in the
Constitution. Parliamentary democracy is a part of the basic structure of the
1
(1998) 4 SCC 626
2
No member of parliament shall be liable to any proceedings in any court in respect of anything said or
any vote given by him in parliament or any committee thereof, and no person shall be liable in respect
of the publication by or under the authority of either house of Parliament of any report, paper, vote or
proceeding
51
The dissenting judgment of the two learned judges though may not possess
precedential value but it does have a force and persuasive value. Judicial
jurisprudence of it amply shows and establishes that privileges conferred by the
Constitution on members of Parliament or legislatures as the case may be, are not an
absolute but are instead subject to some public good or public policy. Moreover,
clause (1) of Article 105 which provides that, “Subject to the provisions of this
Constitution and the rules and standing orders regulating the procedure of parliament,
there shall be freedom of speech in Parliament” makes it amply clear and a
microscopic glance or proper scrutiny of it suggests that freedom of speech
guaranteed by this is subject to the provisions of the Constitution, rules or standing
1
P.V. Narsinharao v. State (CBI) (1998) 4 SCC 626
2
(1998) 4 SCC 626
52
orders. It means that freedom/right is not an absolute but could be restricted on the
basis of provisions of the Constitution or other rules.
The recent judgment of the Indian Supreme Court (2007) in relation to ‘cash
in question’ is a noteworthy step towards strengthening parliamentary democracy in
India. In the instant case, some members of Lok Sabha had accepted money to ask
questions in the house and were caught by a sting operation of a TV news channel.
The two primary questions were raised in the case: (a) Does a house possess a right to
1
Restriction on discussion in Parliament : No discussion shall take place in Parliament with respect to
the conduct of any judge of the Supreme Court of a High Court in the discharge of his duties except
upon a motion for presenting an address to President praying for the removal of the judge a herein after
provided.
53
expel its own members; and (b) is the decision of the House to expel its member final
and immune from judicial review;
The apex court answered the first question in affirmative and said that the
house possesses a power under the Constitution to expel its members to uphold the
dignity, trust and authority of the house itself. However, the Supreme Court in its
judgment replied the second question in negative. It held that even though the house
has power to expel members, it cannot be final judge. If the decision is found to be
taken on political basis, or contrary to the principles of natural justice or with
malafide intention, the judiciary does have a power and authority to scrutinize the
same and declare it invalid.
Judicial review being a part of the basic structure could not be subjected to the
notion of Parliamentary privilege or privilege of a house. It is submitted that the view
adopted by the Indian Supreme Court is appropriate, correct and sound. Political
morality and privileges are to be governed by certain principles to uphold the
standards and legitimacy.1
Universal adult franchise was provided at one go, compared to the very
limited franchise under which he elections of 1937 and 1945-46 were conducted.
Provisions were built in the Constitution of affirmative action in favour of the
historically disadvantaged sections: and secularism to guarantee the pluralism of
society, culture, civilization, religion and polity. Of the hundred or more countries that
1
Delip Ukey, Parliamentary Privileges and Democracy in India: A Judicial Perestroika, (2006) Vol. 40
(3-4), Journal of Constitutional and Parliamentary Studies, pp. 288-295
54
came to liberation in the years following 1947, India was only one to translate
Independence for the country into freedom of her people.
Political Democracy, on the other hand, was growing towards its adulthood
Ideology of nationalism was on the wave particular with the passing away of the
charismatic leaders. Now there was a generational change of leadership all across the
political spectrum. With the operation of political democracy as impacted by
development strategy was throwing up the leadership from regions. People of strata at
the lower end of the spectrum were searching for political spaces having realized the
power of their vote. Some aspirants among them, having a perception of being by
passed from the stream of development, took to militancy also. Compulsions of
political democracy were now before the second generation leadership. For winning
an election, they had to address the constituency of vast majority of the poor. In case
these constituents felt that a particular party failed to come up to their expectations, its
future was black. The elections of 1967 effectively demonstrated that the congress
party could not assume support of the poor for granted. With the dawn of such
realities in the political democracy front, there was bound to be change in economic
development strategies. Emphasis of economic development shifted towards
agriculture with the twin objective of making the country self-reliant in food and also
co-opting the framers and peasants as more vigorous participant in the benefits of
economic development.
A list of subsidies were introduced in the farm sector lowering the costs of
inputs of fertilizers, seeds, water, power or credit and providing higher costs to their
outputs by way of procurement prices for procedures. Such programmes benefited
undoubtedly the rich peasantry, which was a political compulsion of the time. A
separate set-up programmes were initiated to target the landless and poor farmers to
generate employment opportunities for them. Rather an attractive slogan was coined
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 412
55
directed at the poor i.e. Garibi Hatao. With a view to demonstrate Governments
credentials to bring about socialist pattern of society, banks were nationalized and
privy purses of the Princes were abolished. These policies were dictated by the
compulsions of political democracy. A hope was raised that with the nationalization
of banks, Government would assume social control on them to direct the credit to sub
serve greater goal of the people of different strata. Differential rates of interests were
introduced for credits to the disadvantaged sections.
With such initiatives, there was rapid growth in agriculture making the country
self-sufficient in food grains and ensured food security. With this growth, there was
growth in savings, investment and also expenditure.
accommodate all groups and thus it had to be populist and not necessarily most
efficient.
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) pp. 414-416
2
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 421
57
(1) Effective participation. - Before a policy is adopted by the association, all the
members must have equal and effective opportunities for making their views
known to the other members as to what the policy should be.
(2) Voting equality.- When the moment arrives at which the decision about policy
will finally be made, every member must have an equal and effective opportunity
to vote, and all votes must be counted as equal.
(4) Control of the agenda. - The members must have the exclusive opportunity to
decide how and, if they choose, what matters are to be placed on the agenda. Thus
the democratic process required by the three preceding criteria is never closed.
The policies of the association are always open to change by the members, if they
so choose.
(5) Inclusion of adults.-All or at any rate most, adult permanent residents should
have the full rights of citizens that are implied by the first four criteria. Before the
twentieth century this criterion was unacceptable to most advocates of
democracy. To justify it will require us to examine why we should treat others as
our political equals.
Until the twentieth century, most of the world proclaimed the superiority of
non-democratic systems both in theory and in practice. Until very recently, a
58
Consider a few examples from the twentieth century. Under Joseph Stalin’s
rule in the Soviet Union (1929-1953), many millions of persons were jailed for
political reasons, often because of Stalin’s paranoid fear of conspiracies against him.
An estimated twenty million people died in labour camps, were executed for political
reasons, or died from the famine (1932-33) that resulted when Stalin compelled
peasants to join Sate-run farms. Though, another twenty million victims of Stalin’s
rule may have managed to survive, they suffered cruelly.
To be sure, the history of popular rule is not without its own serious
blemishes. Like all Governments, popular Governments have majority, an oligarchic
minority, or a benign dictator, is bound to inflict some harm on some persons. Simply
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 421-422
59
put, the issue is not whether a Government can design all its laws so that none ever
injuries the interests of any citizen. No Government, not even a democratic
Government, could uphold such a claim. The issue is whether in the long run a
democratic process is likely to do less harm to the fundamental rights and interests of
its citizens than any non-democratic alternative. If only because democratic
Governments prevent abusive autocracies from ruling, they meet this requirement
better than non-democratic Governments. Yet just because democracies are far less
tyrannical than non-democratic regimes, democratic citizens can hardly afford to be
complacent. We cannot reasonably justify the commission of a lesser crime because
other commits larger crimes. Even when a democratic country, following democratic
procedures, inflicts an injustice the result is still an injustice. Majority might does not
make majority right.
However, there are other reasons for believing that democracies are likely to
be more just and more respectful of basic human interests than non-democracies.
Yet the difference is not just a trivial matter of definitions. To satisfy the
requirements of democracy, the rights inherent in it must actually be available to
citizens. To promise democratic rights in writing, in law, or even in a constitutional
document is not enough. The rights must be effectively enforced and effectively
available to citizens in practice. If they are not, then to that extent to the political
system is not democratic, despite what its rulers claim, and the trappings of
“democracy” are merely a façade for non-democratic rule.
At this point one might want to object that freedom of speech, let us say,
won’t exist just because it is a part of the very definition of democracy. Who cares
about definition……Surely, the connection must be something more than definitional.
And of course, correct. Institution that provide for and protect basic democratic rights
and opportunities are necessary to democracy: not simply as a logically necessary
condition in order for democracy to exist.
Even so, isn’t this just theory, abstractions, the game of theorists,
philosophers, and other intellectuals? Surely, it would be foolish to think that the
support of a few philosophers is enough to create and maintain democracy. And you
would, of course, be right. The existence of fairly widespread democratic beliefs
among citizens and leaders, including beliefs in the rights and opportunities is
necessary to democracy.
In addition to all the rights, freedoms, and opportunities that are strictly
necessary in order for a Government to be democratic, citizens in a democracy are
certain to enjoy an even more extensive array of freedoms. A belief in the desirability
of democracy does not abolition of the State would produce unbearable violence and
61
If we reject anarchism and assume the need for a State, Then a State with
democratic Government will provide a broader range of freedom than any other.
No one has put the argument more forcefully than John Stuart Mill. A
principle “of as universal truth and applicability as any general propositions which
can be laid down respecting human affairs”, he wrote…… “is that the rights and
interests of every or any person are secure from being disregarded when the person is
himself able, and habitually disposed, to stand up from them….Human beings are
only secure from evil at the hands of others in proportion as they have the power of
being, and are, self-protecting.” We can protect our rights and interests from abuse by
Government, and by those who influence or control Government, he went on to say,
only if one participate fully in determining the conduct of the Government. Therefore,
he concluded, “nothing less can be ultimately desirable than the admission of all to a
share in the sovereign power of the State,” that is a democratic Government.
Mill was surely right. Even if we are included in the electorate of a democratic
state we cannot be certain that all our interests will be adequately protected: but if we
are excluded we can be pretty sure that our interests will be seriously injured by
neglect or outright damage. Better inclusion than exclusion. Democracy is uniquely
related to freedom in still another way.
62
Thus a question arises that has proved deeply perplexing in both theory and
practice. How can we choose the rules that we are obliged by our group to
obey…Because of the State’s exceptional capacity to enforce its laws by coercion, the
question is particularly relevant to our position as a citizen (or subject) of a State.
How can be both are free to choose the laws that are to be enforced by the State and
yet, having chosen them, not be free to disobey them…
If we and our fellow citizens always agreed, the solution would easy: we
would all simply agree unanimous on the laws. Indeed, in these circumstances we
might have no need for laws, except perhaps to serve as a reminder; in obeying the
rules we would be obeying our self. In effect the problem would make the dream of
anarchism come true, but experience shows that genuine, unforced, lasting unanimity
is rare in human affairs; enduring and perfect consensus is an unattainable goal. So
our difficult question remains.
If we can’t reasonably expect to live in perfect harmony with all our fellow
human beings, we might try instead to create a process for arriving at decisions about
rules and laws that would satisfy certain reasonable criteria.
(i)The process would insure that before a law is enacted we and all other citizens will
have an opportunity to make our views known.
63
(iii)In the more likely even that unanimity cannot be achieved, the proposed law that
has the greatest number of supports will be enacted.
These criteria we notice are parts of the ideal democratic process. Although
the process cannot guarantee that all the members will literally live under laws of their
own choosing, it expands self-determination to its maximum feasible limits. Even
when we are among the outvoted members whose preferred option is rejected by the
majority of our fellow citizens, we may nonetheless decide that the process is fairer
than any other that we can reasonably hope to achieve. To that extent we are
exercising our freedom of self-determination by freely choosing to live under a
democratic Constitution rather than a non-democratic alternative.
This is more demanding than most of us can hope to meet and of the time. Yet
to the extent that our own choosing is limited, the scope for your moral responsibility
is also limited. How can be responsible for decisions that we cannot control… if we
cannot influence the conduct of Government officials, how can we be responsible for
their conduct …We are subject to collective decisions, as certainly we are, and if the
democratic process maximizes our opportunity to live under laws of our own
choosing, then-to an extent that no non-democratic alternative can achieve-it also
enables us to act as a morally responsible person.
This is a bold claim and considerably more controversial than any of the
others. It is an empirical assertion a claim as to facts. In principle, we should be able
to test the claim by devising an appropriate way of measuring “human development”
and comparing human development among people who live in democratic and non-
democratic regimes. But the task is of staggering difficulty. As a consequence, though
such evidence as exists supports the proposition, we probably should regard it as an
assertion that is highly plausible but unproved.
Just about everyone has views about the human qualities they think are
desirable or Undesirable, qualities that should be developed if they are desirable and
deterred if they are undesirable. Among the desirable qualities that most of us would
want to foster are honesty, fairness, courage, and love. Many of us also believe that
fully developed adult persons should possess the capacity for looking after
themselves, for acting to take care of their interests and not simply counting on others
to do so. It is desirable, many of us think, that should act responsibly, should weigh
alternative courses of action as best they can, should consider consequences, and
should take into account the rights and obligations of others as well as themselves.
And they should possess the ability to engage in free and open discussion with others
about the problems they face together.
At birth, most human beings possess the potentially for developing these
qualities. Whether and how much they actually develop them depends on many
circumstances, among which is the nature of the political system in which a person
lives. Only democratic systems provide the conditions under which the qualities I
have mentioned are likely to develop fully. All other regimes reduce, often
dramatically, the scope within which adults can act to protect their own interest,
consider the interest of others, take responsibility for important decisions, and engage
freely with others in a search for the best decision. A democratic Government is not
enough to insure that people develop these qualities, but it is essential.
The relation between affluence and democracy was particularly striking in the
last half of the twentieth century. The explanation is partly to be found in the affinity
between representative democracy and a market economy, in which markets are for
the most part not highly regulated, workers are free to move from one place or job to
another, privately owned firms compete for sales and resources, and consumers can
choose among goods and services offered by competing suppliers. By the end of the
twentieth century, although not all countries with market economics were democratic,
all countries with democratic political systems also had market economics. In the past
two centuries a market economy has generally produced more affluence than any
alternative to it. Thus the ancient wisdom has been turned on it head. Because all
modern democratic countries have market economics, and a country with a market
economy is likely to prosper, a modern democratic country is likely also to be a rich
country.
Yet if the affiliation between modern democracy and market economics has
advantages for both, we cannot overlook an important cost than market economics
impose on a democracy. Because a market economy generates economics inequality,
it can also diminish the prospects for attaining full political equality among the
citizens of a democratic country.1
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) pp. 422-430
68
Brahmin, Kshatriya, vaisha and shudra are hierarchical divisions of high and low
caste, based on birth and act accordingly.”
Ambedkar is the greatest political thinker. Outwardly this may seem strange
that in India, life was the monopoly of caste and was completely denied to other
castes for thousands of years. However, here no contradiction is involved. It was the
very privileged position assigned to the Brahmin that became the cause of retardation.
In Indian society, property, illiteracy and caste distinctions as the positive dangers to
Democracy. In this situation, educational facilities and economic help should be
provided for those who are illiterate and backward on one hand and on the other, who
want to wipe on the roots of caste system in order to safeguard the interest of
democracy. Ambedkar says, “If you give education to the lower strata of the Indian
society which is interested in blowing up the caste systems, the caste system will be
blown up.” At the moment, the indiscriminate help given to education by the Indian
Government and American foundation is going to strengthen the caste system. Giving
education to those who want to blow up caste safer hands.
The consequences of the caste system on politics and election are quite
obvious. Caste are so distributed that in any area there are major castes carrying the
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) pp. 433-435
70
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) pp. 435-436
2
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) pp. 436-437
71
(b) The individual has certain inalienable rights which must be guaranteed to him
by the constitution.
(c) The individual shall not be required to relinquish any of his constitutional
rights as a condition precedent to the receipt of a privilege.
(d) The state shall not delegate powers to private persons to govern others.”2
1
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 437
2
G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 439
72
2.10 E-Democracy
The research indicates the political process has been alienated from ordinary
people, where laws are made by representatives far removed from ordinary people.
The goal of e-democracy is to reverse the cynicism citizens have about their
government institutions. However, there are increasing doubts concerning the real
impact of electronic and digital tools on citizen participation and democratic
governance, and warn against the ‘rhetoric’ of electronic democracy.1
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) pp.23-24
73
opportunities for individuals and communities to interact with government and for the
government to seek input from the community”. Characteristics of the internet which
he feels support e-Democracy are that it provides opportunity to participate in debates
as they happen, participation is less limited by geography, disability or networks, and
its facilitates the access to information and provision of input by individuals and
groups who are previously had not been included in these debates.1
There has been a significant growth in the last four years and implementation
rate have topped out in many of the categories. To see this data, go to NIC resources
web site. Public and private sector platforms provide an avenue to citizen engagement
while offering access to transparent information citizens have come to expect.
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) pp. 117-118
2
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 24
74
The internet is viewed as a platform and delivery medium for tools that help to
eliminate some of the distance constraints in representative democracy. Technical
media for E-democracy can be expected to extend to mobile technologies such as
cellphones.
Using the Internet as a political campaigning tool has become a cheaper and
more convenient alternative for many politicians in comparison to traditional door-to-
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 24-25
2
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) pp. 25-26
75
door knocking or telephone campaigning. Candidates are also beginning to use social
networking sites to reach younger audiences, in turn, creating potential supporters to
campaigns. E-mail chains and political blogs also have had a major impact with
online campaigning. Views are expressed by adding comments to political blogs or
web pages. Point-and-click advertising (interactive advertising online) also has
influenced traditional mail or television campaigning.1
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 26
2
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) pp. 31-32
76
Electronic voting technology can speed the counting of ballots and can
provide improve accessibility for disabled voters. However, there has been
contention, especially in the United States, that electronic voting especially DRE
voting, could facilitate electoral fraud.
Electronic voting systems for electorates have been in use since the 1960s
when punch card systems debuted. The newer optical scan voting systems allow a
computer to count a voter’s mark on a ballot. DRE voting machines which collect and
tabulate votes in a single machine are used by all voters in all elections in Brazil and
India and also in a large scale in the Venezuela and the United States.
In 2004, India had adopted Electronic Voting Machines (EVM) for its election
to the parliament with 380 million voters had cast their ballots using more than a
million voting machines. The Indian EVMs are designed and developed by two
Government Owned Defense Equipment Manufacturing Units, Bharat Electronics
Limited (BEL) and Electronics Corporation of India Limited (ECIL). Both systems
are identical, and are developed to the specifications of Election Commission of
India.2
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 32
2
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 55
77
1
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 107
2
Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada
Prakashan , New Delhi (2011) p. 119
78
The word democracy is one of the most used terms of the political vocabulary.
This vital concept, through its transcultural dimension and because it touches the very
fundamental of the life of human being in society, has given rise to much written
comment and reflection; nevertheless, until now there has not been any text adopted at
the world-wide level by politicians which defined its parameters or established its
scope. This concept was probably in some way frozen by the opposition between
plain or "formal" democracy and "popular" democracy which was current until
recently in world-wide multilateral circles. These times are past; democracy - now
unqualified - seems to be the subject of broad consensus and its promotion is high on
the agenda of international bodies.
On the initiative of Dr. Ahmed Fathy Sorour, then President of its Council, the
Inter-Parliamentary Union decided in 1995 to embark on a Universal Declaration on
Democracy in order to advance international standards and contribute to the process
of democratization under way in the world.
1
Roscoe Pound, The development of constitutional guarantees of liberty, Yale University Press, New
Haven, CT, USA, 1957
79
2. Democracy as a state, or condition, (un etat, the French equivalent, which more
aptly conveys this meaning than its English counterpart), with all which this
condition implies for given civil society and its governance, including the processes
of democracy and maybe also democratic outcomes.
3. Democracy as an outcome, is putting into effect policies and practices which are
generally agreed upon by the governed. Such an outcome may or may not be the
result of a condition or state, and it may or may not be the product of democratic
processes.
1
R.T. Rosstrans, Encyclopedia Britannica, Chicago. IL. USA, 1953
2
Vienna Declaration on Human Rights, Part I, para, 8, UN Gaor, UN Doc. A/CONF. 157/23 (1993)
3
The UN Secretary-General’s Report on New or Restored Democracies, para, 5, UN Gaor, 50th Sess,
UN Doc. A/50/332 (1995)
80