CONCEPT AND

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

2.1 Meaning and Definition of Democracy

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”.

Maclver observes, “Democracy is not a way of governing, whether by

majority or otherwise, but primarily a way of determining, who shall govern, and

broadly to what ends”.

In its comprehensive from, democracy means, or ought to mean, (i) a form of

government, (ii) a type of state, (iii) a pattern of social system, (iv) a design of

economic order and (v) a way of life and culture. Therefore, when we say that India is

1Raphael 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.

Democracy demands the elimination or absence of the aforesaid elements

which characterize totalitarian dictatorship, democracy being the antithesis of

dictatorship. There is another and more important aspect, namely, the positive aspect.

Positively, democracy seeks to maintain and assert such invaluable rights as:

(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.

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Toleration is of the essence of democracy. Democrats love diversity and see in

it an expression of freedom. The right to differ is the sine qua non of freedom. The

moment one person demands the privilege of shaping others to his image, kindness,

generosity and tolerance removes them from the equation. The fanatic is always a

pest. The one-track mind is always a dangerous guide.

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.”

Democratic Socialism implies equal opportunity, a high degree of economic

equality, full employment, rapidly rising productivity, democracy in industry and a

general spirit of cooperation.

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) The acknowledgement of the manhood of each and every human

individual;

(b) A respect for the generic essence of manhood, however slight its traces, as

comprising those faculties of reason and conscience through which the

light of truth finds its way into the natural world;

(c) An all-comprising and compassionate love of individual men as seekers

after truth.

Perry’s approach fits in with Rabindranath Tagore’s concept of democracy

which focuses attention on the manhood and develops its fuller social implications on

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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”.

Professor F. J. C. Hearnshaw in his book, “Democracy at The Crossways”,

gives three meanings in which the world democracy is used. First, it may mean a

democratic society, one which is based on the principle of equality. Secondly, it may

refer to a state, in which sovereignty lies ultimately in the people. Thirdly, as applied

to Government, it implies the actual administration of affairs by the people, either

directly or else immediately through representatives.

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.

In a democracy, the legislative power is vested in a freely-elected legislature

and executive power in a responsible Government. The Government may either

proceed from, and be responsible to, Parliament (Parliamentary or cabinet

Government is the most usual form ,as in Britain and India) or proceed from, and be

responsible to, the people (Presidential Government in the U.S.A.) ; in either case the

Government must go out if Parliament or people so desire. Democratic Governments

have, therefore, to function in a way which accords with the general will of the

people. The democratic Government is the only type of Government in which the

responsibility of the Government to the governed can be adequately enforced.

Democracy necessarily implies the existence of a recognized opposition.

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.

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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.

A Democratic Government is, therefore, one which is constituted and

administered on the principle that every normal adult citizen should have a voice, at

least in the choice of those who make the laws by which he is governed, and that his

voice should be equal in weight to that of every other elector. The theory is that if

some of the enfranchised are really unfit, the general average will be high enough to

offset the danger.

Modern democracies are representative democracies. Manifestly, a direct

democracy is practicable only in small and relatively undeveloped communities where

it is physically possible for the entire electorate to assemble in a given place and

where the problems of Government are few and simple. Athens and certain other

states in ancient Greece, and even earlier, some of the smaller states in ancient India

may be mentioned as examples of states in which the affairs of Government were

conducted directly by the people themselves. The only surviving examples of direct

democracies today are found in some of the smaller cantons of Switzerland which is

commonly regarded as the classic land of democracy. The Swiss constitution provides

for direct democratic devices like the initiative and the recall.

The prevailing type of democracy is representative democracy. Strictly

speaking, a representative Government is one whose officials and agents are chosen

by the electorate democratically constituted, who during their tenure of office reflect

the will of the electorate, and who are subject to an enforceable popular responsibility.

But judged by this rigorous test few, if any, existing Governments could qualify as

representative. Even in the United States and Switzerland, two of the most democratic

governments, the principle of representative government is not understood to require

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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.

According to the French writer, Lebon, and Professor Giddings, popular

government is too much swayed by emotionalism. What some critics regard as a

defect, if not a danger, of modern democracies is their tendencies to go to extremes.

Thus President Lowell remarked: “The trouble with modern democracies is that they

attempt to do too much.”

A recent writer, Professor E. Lindeman, whose sympathies are definitely on

the side of democracy, has done well in pointing out that institutionalism represents a

growing threat to the survival of a democratic society. Various specialized bodies –

like courts, clinics, trade unions, social, educational and recreational agencies—tend

to substitute institutional pride for humane interest in people. Isolation is a form of

evasion which ultimately defeats the fraternity principle which is one of democracy’s

ideal goals.

Democracy is an experiment, as all life is an experiment. It is often a

compromise. Adherence to the democratic principle means adherence to the discipline

of moving toward the ultimately desirable by means of feasibility in the present.

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.

It is hardly necessary to say that perhaps the most fundamental of all

conditions to the successful working of democratic government it is that the people

who work it shall possess a high degree of political intelligence-------an intelligence

“elevated by honour, purified by sympathy, and stimulated by a sense of duty to the

community”-----a keen sense of public responsibility, an abiding interest in public

affairs, and a readiness not only to accept and abide by the decisions of the majority,

but also to recognize and respect the rights of strong minorities.

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.

If citizenship means the contribution of one’s instructed judgment to the

common good, then citizens- electors and their representatives- must be suitably

instructed. But the democratic way of life cannot be merely through the introduction

of various items about democracy in the curriculum, though that is important.

Knowledge of democracy acquired in democratic experience would yield better

results by producing and promoting democratic habits. In other words, the democratic

way of life does not consist of a system of beliefs but rather of a cluster of habits.

It is increasingly clear that political democracy will only justify itself if it

succeeds in ensuring economic democracy- freedom from want and insecurity. As

Nehru said:

“When we talk of political democracy, we must remember that it no longer has

the particular significance it had in the 19th century, for instance. If it is to have any

meaning, political democracy must gradually or, if you like, rapidly lead to economic

democracy. If there is economic inequality, all the political democracy and all the

adult suffrage in the world cannot bring about real democracy.” In short, democracy

should furnish both freedom and security.

These may be classified as follows:

(1) Democracy as individual freedom;

(2) Democracy as representative government;

(3) Democracy as economic and social equality;

(4) Democracy as social self discipline.

Democracy must have a background and basis in these masses of the people,

in their education.

Another essential condition for the successful working of democratic rule is

often overlooked or ignored. Means must be consonant with ends. If humane and

liberal ends are desired, means must be humane and liberal too. The citizen who

strives for democratic goals must discipline himself in the use of democratic means. It

is the insistence on the means being as good as the ends that enables India’s Nehru or

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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.

Mankind is seeking a way which combines economic stability and progress

with political freedom. India stands for this way forward. She is engaged today in a

mighty social-cum-economic experiment and she is trying to carry it out in a planned

way without surrendering either parliamentary ways of life or the essentials of

individual liberty. True to her tradition and culture, India’s approach is synthetic. The

success of her experiment will add a new connotation to the meaning of democracy.1

2.1.1 The Concept of Democracy

The concept of democracy is not new in India, as the substance of self-

government lies imbedded in our past history. The literary meaning of the word

democracy is the government of the country by the people; a form of government in

which the supreme power is vested in the people and exercised by them or by their

elected representatives under a free electoral system or a state in which the supreme

power is vested in the people and exercised directly by them rather than their elected

agents. Political or social equality is the spirit of democracy.

In other words, the democracy is the condition of direct popular government

by the people, for the people- the executive powers being vested in elected

representatives of the people. The republic is the perfect form of democracy as in the

United States, France, Switzerland, Argentina, Brazil, Mexico, etc. In Great Britain,

the government is a democracy in so far as the House of Commons are concerned and

aristocratic domination is held in check by the power of popular representation. There

are various types of systems to run a government – Federal, Democratic Republic and

the Unitary Form. Federal is the form of government pertaining to or of the nature of

a union of states under a central government of the separate states.

Unitary form of government is the government pertaining to, characterized by,

or aiming towards unity. It pertaining to, characterized by, or aiming towards unity. It

pertains to a system of government in which the executive, legislative, and judicial

powers of each state or a body of states are vested in a central authority. Democracy

aims at good life for every individual which includes certain satisfaction of the

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.”

It is always a healthy position for a sound democracy to have a good

opposition not exactly in numbers but in political intelligence. The opposition cannot

compel for perfect agreement but it can create situation for thought. It is in a way a

healthy tradition to tolerate opposition as authoritarian methods of suppression of

opposition are quite harmful and dangerous for the healthy growth of democracy in

the country.

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A government cannot be considered democratic simply because it is voted into

power by majority. In democracy, the subjects have to enjoy perfect freedom of

thought, freedom of full expression or liberty of speech and association even with the

opponents. There must be rivals outside and dissensions inside which has to be

tolerated under democratic working. Democracy means the distribution of power and

decentralization.

An independent and impartial judiciary, audit and services commission

restraint the government from the arbitrary or tyrannical acts. They must be protected

from executive interference or political pressures. 1

2.1.2 Parliamentary System of Democracy

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.

In order to see that parliamentary democracy remains successful, the most

essential point is that the government administration should work through the career

civil services which are a permanent structure for government. The Indian constitution

and the system of government is based largely upon the pattern of British

parliamentary system where a Cabinet of Ministers is chosen from the majority party

in the Parliament and the permanent civil services advise and assist the ministries. In

America, the system has been sustained only because the President or the Governor,

once declared elected by the direct vote of the people, continues uninterrupted for the

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.

During the post-independence period, India has gained enough experience in

running the parliamentary democracy as ours is a new democracy and the conditions

differ, to some extent, between the U.K. and West Germany where democratic system

has established. There are very good young and ambitious people in our services who

are good administrators as well.

According to Shri Peter J.D. Wiles1 the implicit theories of parliamentary

democracy can be defined as under:

(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.

1J.D. Peter Wiles, “Development of Democracy”, Journal of Constitutional and Parliamentary Studies,

Vol, VI, No 1.

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Comparing the old system of state capitalism-cum-parliamentary democracy,

it is the political institutions that make demands of self-discipline, civil rights, the rule

of law, opposition parties. The size of the country and diversity may be politically

more important than other factors like literacy and economic position.

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.

The democracy is a sophisticated political system with complicated

operational machines. The utmost necessity for proper functioning of democracy of

democracy is to impart education on right lines which seems to be pre-requisite for its

successful working. A strong leadership can prove effective for the economic growth

through decisive and firm political decisions. There are several political

considerations to influence the nature of decisions in the sphere of economic

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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

2.1.3 Indian Democracy and Political Parties

There is an unsatisfactory feature of Indian politics due to different ideologies

and functioning of political parties in the country as some of the parties have not been

able to adjust or change their outlook to the new conditions of federal parliamentary

democracy. It has been closely studied that some of the national parties are neither

democratic, nor federal, nor disciplined. Prior to independence, it was the

organizational wing that played powerful part in the party organization. The

parliamentary or legislative wing was subordinate to the organization. The

parliamentary or legislative wing was subordinate to the organization. As soon as the

power was transferred to the people, the position changed radically. The important

persons or leaders contested seats and won on party tickets and others, who could not

become candidates, were left out to work for the organization. Under the changed

circumstances, the party leaders in the Central or State legislatures were chosen as

party leaders who were considered most influential, with the result that the legislative

party became the Prime Minister & Chief Minister and the whole power was vested in

them. In the federal system of government, the State Governments and their leaders or

ministers are as sovereign as the Central Government and the Parliament. The present

leadership in the state or the Central Government is not based upon the service to and

the popularity among the electorates. Some of the elected members on party tickets

lack in fundamental loyalties and function with a motive in the spirit of self-interest

and political opportunism. They have been seen defecting from one party to the other

and making the legislative working unstable. There are state ministries which changed

1R.K. Bhardwaj, Democracy in India, National, New Delhi, (1983), pp. 5-8

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hands several times due to unchecked defections thus making a mockery of the Indian

democracy.1

2.1.4 Mahatma Gandhi on Democracy

In order to have a clear understanding of democracy, the sayings of Mahatma

Gandhi are quoted below so that the real concept may be understood as described by

him much before the attainment of independence when the struggle for freedom was

in full swing.

“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

To safeguard democracy, the people must have a keen sense of independence,

self respect and oneness and should insist on choosing as their representatives only

such persons as are good and true.5

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

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What is really needed to make democracy function is not knowledge of facts

but right education.1

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

Nehru felt strongly that the democratic form of government provided a

peaceful method of achieving all ends which may from time to time, be thought

desirable by the community.

Democracy means to me, an attempt of the solution of the problems by

peaceful methods. If it is not peaceful, then, to my mind, it is not

democracy……Democracy gives the individual an opportunity to develop. Such

opportunity does not mean anarchy, where every individual does what he likes. A

social organization must have some disciplines to hold it together………..In a poor

democracy, discipline is self imposed. There is no democracy, if there is no

discipline.3

Democracy, according to Panditji, meant “tolerance not merely of those who

agree with us, but also of those who did not agree with us.”

2.2 The elements and exercise of democratic government

1. Democracy is based on the existence of well-structured and well-functioning

institutions, as well as on a body of standards and rules and on the will of

society as a whole, fully conversant with its rights and responsibilities.

2. 2. It is for democratic institutions to mediate tensions and maintain

equilibrium between the competing claims of diversity and uniformity,

individuality and collect ivity, in order to enhance social cohesion and

solidarity.

3. Democracy is founded on the right of every one to take part in the

management of public affairs; it their requires the existence of representative

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

institutions at all levels and, in particular, a Parliament in which all

components of society are represented and which has the requisite powers and

means to express the will of the people by legislating and overseeing

government action.

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.

5. It is an essential function of the State to ensure the enjoyment of civil, cultural,

economic, political and social rights to its citizens. Democracy thus goes hand

in hand with an effective, honest and transparent government, freely chosen

and accountable for its management of public affairs.

6. Public accountability, which is essential to democracy, applies to all those

who hold public authority, whether elected or non-elected, and to all bodies of

public authority exception. Accountability entails a public right of access to

information about the activities of government, the right to petition

government and to seek redress through impartial administrative and judicial

mechanisms.

7. Public life as a whole must be stamped by a sense of ethics and by

transparency, and appropriate norms and procedures must be established to

uphold them.

8. Individual participation in democratic processes and public life at all levels

must be regulated fairly and impartially and must avoid any discrimination, as

well as the risk of intimidation by State and non-State actors.

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9. Judicial institutions and independent, impartial and effective oversight

mechanisms are the guarantors for the rule of Law on which democracy is

founded. In order for these institutions and mechanisms fully to ensure respect

for the rules, improve the fairness of the processes and redress injustices, there

must be access by all to administrative and judicial remedies on the basis of

equality as well as respect for administrative and judicial decisions both by the

organs of the State and representatives of public authority and by each

member of society.

10. While the existence of an active civil society is an essential element of

democracy, the capacity and willingness and make governance choices cannot

be taken for granted.

It is therefore necessary to develop conditions conductive to the

genuine exercise of participatory rights, while also eliminating obstacles that

prevent, hinder or inhibit this exercise. It is therefore indispensable to ensure

the permanent enhancement of, inter alia, equality, transparency and education

and to remove obstacles such as ignorance, intolerance, apathy, the lack of

genuine choices and alternatives and the absence of measures designed to

redress imbalance or discrimination of a social, cultural, religious and racial

nature, or for reasons of gender.

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.

12. Democratic processes are fostered by a favorable economic environment;

therefore, in its overall effort for development, society must be committed to

satisfying the basic economic needs of the most disadvantaged, thus ensuring

their full integration in the democratic process.

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

2.3 Historical background of Democracy in India

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.

The system of government introduced by the Constitution of India, both at the

Union and in the states, is what is characterized in political and constitutional

terminology as a parliamentary democracy. This system has been modeled upon the

Westminster type of democracy with which we are familiar and associated through

the British rule in India. Hence, though the present system is framed by the

Constituent Assembly of India. Yet it may not be considered as a newly implanted

matter on the political soil of India. On the other hand, we have had some sort of

1 Ahmed Fathy Sorour, Universal Declaration on Democracy, Inter-Parliamentary Council ( 161st session), (Cairo, 16 September 1997) pp. 5-7

38

experiences in the working of parliamentary democracy in its rudimentary form even

before the attainment of Independence in 1947. Thus, the genesis of the present

parliamentary democracy is to be found in the Declaration of 20th August 1917 by the

British Government which runs thus: “The policy of His Majesty’s Government of

India are in complete accord, is that of increasing association of Indians in every

branch of administration and the gradual development of self-governing institutions,

with a view to progressive realization of responsible Government in India as an

integral part of the British Empire.

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.

The framers of our Constitution resolved to have a democratic system of

governance. Democracy has emerged as the best system of government. Irrespective

of its various meanings and working results; the spirit of democracy is participative,

elective and accountable system of government.

39

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.

Democracy in India, at the level of administration and governance does not

represent the multicultural life of people of the land. The only way to make

democracy participative in the country is through resources to multiculturalism in

politics and governance by providing representation to all groups. The first thing that

is required therefore is to accept that the country is multicultural and all the cultures

need to be represented to make democracy a way of life in the country. Democracy

abjures ignorance, but revels in it. There is sunshine, but also lightness, shade and

darkness. A democracy that knows not, and knows not that it knows not adds folly to

its ignorance to subvert its purpose. Consociational democracy, or power sharing,

which in India has come to be known as wants to social justice, has to become a way

of life ,if India wants to grow into a civilized, peace loving, fraternal and amicable

society by providing a proportional space to all groups and communities.

2.4 The principles of democracy

1. Democracy is a universally recognized ideal as well as a goal which is based

on common values shared by people throughout the world community

irrespective of cultural, political, social and economic differences. It is thus a

basic right of citizenship to be exercised under conditions of freedom,

equality, transparency and responsibility, with due respect for the plurality of

views, and in the interest of the polity.

2. Democracy is both an ideal to be pursued and a mode of government to be

applied according to modalities which reflect the diversity of experiences and

cultural particularities without derogating from internationally recognized

principles, norms and standards. It is thus a constantly perfected and always

40

perfectible state or condition whose progress will depend upon a variety of

political, social, economic and cultural factors.

3. As an ideal, democracy aims essentially to preserve and promote the dignity

and fundamental rights of the individual, to achieve social justice, foster the

economic and social development of the community, strengthen the cohesion

of society and enhance national tranquility, as well as to create a climate that

is favourable for international peace. As a form of government, democracy is

the best way of achieving these objectives; it is also the only political system

that has the capacity for self-correction.

4. The achievement of democracy presupposes a genuine partnership between

men and women in the conduct of the affairs of society in which they work in

equality and complimentarily, drawing mutual enrichment from their

differences.

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.

6. Democracy is inseparable from the rights set forth in the international

instruments recalled in the preamble. These rights must therefore be applied

effectively and their proper exercise must be matched with individual and

collective responsibilities.

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

1Ahmed Fathy Sorour, Universal Declaration on Democracy, Inter-Parliamentary Council, ( 161st session), (Cairo, 16 September 1997) pp. 4-5

41

2.5 The Role of Democracy in Development

The role of democracy is important in creating a congenial ambience which

extends the fruits of development to the teeming millions in a developing nation like

India. To some politico-economic commentators, whenever democratic freedom is

suppressed, problems have arisen in achieving a high rate of development as was the

case of colonial India. In the post-colonial era, India is boastfully claimed to be most

vibrant and the largest democracy of the world. But such vibrancy or radiance is

hardly seen on the face of the development which started under the aegis of such

democracy. Despite our bonhomie with democracy for the last five decades or more,

we, the people of DEMOCRATIC India, much to our chagrin find ourselves in a state

of serious economic disarray. Despite the extravagant claims of economic upswing of

a ‘shining’ India by the present dispensation, we see the vision of our constitutional

progenitors of giving India a SOVEREIGN DEMOCRATIC REPUBLIC which

secures to its citizens Justice—Social, Economic, and Political….,stand tragically

shattered.

That is an index measuring average achievement in terms of “a long and

healthy life, knowledge, and a decent standard of living.” Hence the moot question-

whether democracy and development are consistent with each other conceptual

cousins, or are incompatible-counter concepts, need to be settled.

A dominant paradigm of political thought is of the considered view that

democracy notwithstanding assuring permitted freedom, accepted dissent and valued

consensus, has miserably failed to remain alive to, and aware of, the risks of playing

into the hands of the electorate, who in the greed of immediate gratification of their

culinary aspiration, threaten the political stability which is the sine qua non of a

nation’s development.

Through our freedom-centric democracy has been secured, not by the

ordinance of the charismatic dynasts or Bonaparte’s generals, but through the

continual interplay between State hegemony and critical resistance, yet it is

distressing and disturbing to note that the benefits of constitutional philosophy of

Social and Economic Justice (the dominant parameters of development) have not

trickled down to the common man. The discourse mongers of the democracy are no

42

longer prepared to concede as a legitimate goal, as the glaring chasm between the

constitutional theory and political praxis has widened beyond reasonable imagination.

Thus, the dominant political paradigm which sees democracy and

development as incompatible and in consistent with each other, finds ‘development’

precariously poised being subservient to the subjective, self-harming aspirations of an

unwise electorate which spares no efforts in toppling governments on the trivial and

irrational issues of free electricity, free education, caste based reservations etc.,

thereby threatening the political stability the absence of which makes development

imponderable. Hence, according to it a state wanting to be a truly a democratic polity

pro bono public, must give a carte blanche to the executive branch to give effect to the

undisturbed, unrestrained, carefully- guided, and policy-driven development which in

turn adequately addresses the aspirations of the masses while simultaneously

correcting the discrepancies of the system. In so doing, the executive branch may also

transcend beyond its fixed tenure if necessitated by the imminent danger of its

downfall owing to the unwise and irrational wrath of a vengeful electorate.

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

In a democratic set-up like ours, liberalization is not an end in itself. It is

supposed to correct the mistake of our policies on the basis of national consensus, but

not necessarily change their objective which was development with social justice,

removal of poverty, unemployment, and social deprivation as well as regional

disparities.

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.

There is no denying that the pace of development in a democratic but diverse

polity like India is tedious and tardy, and the bottle-necks on the way to development

and distributive justice or benefits reaching the neediest and deserving ones, too

strong to break in one go. In a functional democracy, the voter is more interested in

tangible development than populist sops (with little variations here and there). On

close analysis, we find our democracy incapable of addressing the basic needs of the

people, something very substantial in concept and its execution also seems to have

gone awry. By focusing only on political aspects of democracy at the cost of social

and economical aspects, our vision has developed certain blinkers that need

immediate remedial measures. In fact, the rise of regional parties on the political

horizon of India is linked with the lack or inadequate economic development.

Irrespective of the bug and burden of ideology, it is the freedom centered

development that forms a more secure, sounder, and deeper basis of democratic

virtues and values. The role of the States in promoting development depends on how

effectively they provide safety nets and a host of other services to the community.

They are not supposed to scuttle initiative and enterprise, because the lack of

democracy and liberty are integrally related with lack of civil rights, impoverished

lives and gender related inequalities.

44

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

2.6 Democracy and Rule of Law

Democracy was a founding faith of constitutional framers of the Indian

Constitution and the constituent assembly debates reflect their urge, desire and

unflinching trust in democratic governance of the country. It did find a proud place in

the preamble of the constitution, which resolved to constitute India into a strong

democratic nation along with the other pious objects like secularism, socialism and

republicanism. Parliamentary democracy and parliamentary sovereignty are twin

coinages along with rule of law, which ruled albeit with different facets and have

become cornerstone of British legal system over the centuries.

Rule of law; parliamentary democracy and parliamentary sovereignty together

constitute the basic principles of the Constitution of Great Britain. Doctrine of

parliamentary sovereignty played a very significant role therein and due to its

presence, judiciary in general and the highest judicial organ in particular must not

have required playing much role to facilitate the governance in accordance with the

other principles. However, in India, though Constitution commands and parliamentary

democracy functions, the commanders in government of the day took the provisions

of the constitution for granted to suit their political ambitions and arrangements,

wherein judiciary did not adhere to such unauthorized usurpation of political power

and restricted the principle democracy.

Indira Gandhi v. Rajnarain 2 is a leading instance of such usurpation of power

by the government (executive) to negate judicial decision which unseated the Prime

Minister Mrs. Indira Gandhi on the ground of corrupt electoral practices to gain and

retain political power. Post Allahabad Court’s decision saw the opposition political

parties and their leaders demanding resignation of Mrs. Gandhi from membership of

Lok Sabha as well as Prime Ministership which she did not accept. Contrary to it, she

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.

Doctrine of basic structure or basic features evolved by the Indian Supreme

Court1 has placed some implied limitations upon the amending power of Parliament

provided under Article 368 of the Constitution. Thus, it is submitted that supremacy

of the Constitution has been lodged with supremacy of the Supreme Court, which

goes counter to the doctrine of parliamentary supremacy or sovereignty in England.

The rational behind such analogy is that basic features have not been mentioned

anywhere in the Constitution; it is a creation and creature of Supreme Court only. It is

an attempt of the judiciary to uphold and nourish parliamentary democracy in India.

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

Therefore, judicial decision in Indira Gandhi, since it invalidated the amendment, is a

triumph and victory of rule of law.1

2.7 Parliamentary Privileges and Democracy

In a parliamentary democracy rights and liberties of the citizens are so

important that the Parliament ought not to exercise its law making power to

subordinate or subjugate them. Similarly while discharging their functions; members

of parliament also enjoy certain privileges. These privileges are provided to the house

collectively and individually to let the members discharge their duties without any

fear or obstacle. They keep the members immune from any such liabilities which

might arise as a result of exercise of their powers or discharge of their duties. Erskin

May2 defined parliamentary privileges as “the sum of peculiar rights enjoyed by each

house collectively as a constituent part of the Parliament and members of each house

individually, without which they could not discharge their functions and which exceed

those possessed by other bodies or individuals”.

The concept of parliamentary democracy is sine-qua-non for the governance

of civilized society but its strength lies in accountability and commitment of the

members of parliament to the electorate. It means that public power should be

especially exercised by the public authorities for public good and not for interest or

benefit. This possibly indicates that any attempt by the public authority or authorities

(members) for privatization of public power would negate the trust of the people and,

therefore, the notion of parliamentary democracy become utmost important. Similarly

such instance had come up before the Supreme Court in Kihota Holohon v. Zachillu

and others3 wherein the court was called upon to examine the validity of Fifty-second

Constitutional Amendment Act, 1985. The amendment popularly called the anti-

defection law incorporated the tenth schedule in the Constitution. It provides4 that if

member of a political party on whose symbol he was elected to the legislature, defects

from that party, he would lose his seat in the legislature. If a member votes or abstains

from voting contrary to the direction of his party or without the permission of the

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.

It is submitted that these freedoms accorded by the Constitution to them are

meant to discharge their legislative duties without any hindrance from any outside

agency or source. The members are supposed that they shall use their freedoms for

discharge of public duty for the sake of public good only. In other words, whatever

protection or immunity is accorded, it is only for discharge or exercise of the public

power by elected members of the respective house, which means that, these freedoms

ought not to be used or resorted by them to further or fulfill their personal political

ambitions or to gain political positions either at individual or collective level. Right to

vote or freedom of speech hence has to be made subjected to public good/policy and

ought not to be treated absolute. The decision of the apex court fosters legitimacy and

makes elected representatives accountable and responsible to the people. While

casting their vote in favour of a particular candidate, they consider the programmes

and policies of the political parties to which the candidate belongs. Perestroika

resorted by the apex court in the instant case, it is submitted , has tried to eliminate the

disease of defections and unprincipled polity and make parliamentary democracy

more viable and stronger in India. I t is also important to note if there is a conflict

between parliamentary democracy and parliament privileges, then as far as possible

and to greater extent former shall have an overriding effect on the latter and not

otherwise.

1 S.P. Sathe, Judicial Activism in India, Oxford, (2002), pp. 90-91

50

However, judicial consistency and perestroika appeared to be diluted

subsequently by the apex court in P. V. Narsinharao v. State (CBI)1. The foremost

question in considerable in the instant case was, whether parliamentary privilege

guaranteed by the Constitution under Article 105(2)2 confers immunity on a member

in casting his vote in Parliament during no confidence motion after accepting, bribery,

or not. The five-Judge bench of the Supreme court by majority (3:2) held that

Member of Parliament (MP) would be immune from any criminal prosecution under

the circumstances because he has a privilege to cast his vote under sub-clause (2) of

Article 105 of the Constitution but who offers bribe to him/them would be liable to be

prosecuted under the prevention of corruption Act. It means privilege under the

constitution would confer immunity upon MP/MPs who have accepted it. It is

submitted with due respect that the majority decision dilutes the notion of

parliamentary democracy and rule of law and hence implausible.

In England Article 9 of the bill of Rights, 1689 contains Parliamentary

privileges including freedom of speech and debates during parliamentary proceedings.

The House of Commons on 2 May, 1695 had passed the resolution that ‘offer of

money or other advantage to any MP for promoting any matter whatever so in

Parliament is a high crime and misdemeanor and tends to subversion of English

Constitution on Standards of conduct in Public Life 1972 said that the membership of

Parliament is a great honour and equality before law is one of the pillars of freedom.

Hence immunity from criminal proceedings against anyone who tries to bribe MP and

MP who accept bribe is a serious mistake. Similarly, in R. Currie (1992) Buckley J.

had observed, “a member of parliament against whom there is a prima facie case of

corruption should be immune from prosecution in the courts of law is to my mind an

unacceptable proposition at the present time. I do not believe it to be the law.”

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

constitution. An interpretation of Article 105(2) which would enable MPs to claim

immunity from prosecution in a criminal court for an offence of bribery in connection

with anything said or done by him or a vote given by him in Parliament or any

committee thereof and thereby place such members above the law would not only be

repugnant to healthy functioning of parliamentary democracy but would also be

subversive to the rule of law which is also an essential part of the basic structure of

the constitution. Immunity would be available only if the speech that has been made

or vote that has been cast is an essential and integral part of the cause of action for the

proceedings giving rise to the liability. The immunity would not be available to give

protection against liability for an act that precedes the making of the speech or giving

of vote by a member of parliament even though it may have a connection with the

speech made or the vote given by the member if such an act gives rise to a liability

which arise independently and does not depend on the making of the speech or the

giving of vote in Parliament by the member. Such an independent liability cannot be

regarded as liability in respect of anything said or vote given by the member in

parliament.1 Justice Agrawal S. C. for himself and no behalf of Justice Anand R. S.

held (dissenting) that a member of Parliament does not enjoy immunity under Article

105(2) or (3) of the constitution from being prosecuted before a criminal court for an

offence involving offer or acceptance of bribe for the purpose of speaking or by

giving his vote in Parliament or in any committees thereof.2

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.

Similarly, it is important to note that, this provision begins firstly with

restrictions (subject to the provisions of this Constitution) and then the freedom of

speech is guaranteed by it. In doing so the Constitutional framers intended to give

primacy to the provisions of the Constitution and not to the freedom of speech of

members, and they wanted members to exercise their freedom of speech in

accordance with the Constitutional provisions and for the public welfare or public

good. A broader look of the Constitutional provision would convey that Article 1211

is a kind of limitation or restriction upon the freedom of speech of members

guaranteed under Article 105(1). A plain reading of this establishes a fact that either

freedom of speech or right to vote in Parliament is not an absolute but could be

limited or restricted on the basis of the Constitution itself. If immunity from liability

in respect of speech or vote is available to the members at all, it shall/ought to be

available only for discharge of their legislative or constitutional duties and not

otherwise, such as to speak or vote or abstain from it, having accepted the bribe from

either members themselves or some other persons. This would tantamount to be

defeat of the intention of the Constitution framers and dilution/destruction of the roots

of the parliamentary democracy and rule of law. The majority judgment on the other

hand, it is submitted, dilutes the same and hence not proper. To say, it did that bribe

givers would be subject to criminal liability but not those who have accepted the bribe

but did not act in accordance with the conspiracy will also subject to liability, would

amount to compel the bribe taker MP to do the needful otherwise face the

consequences. This results in certain unequal treatment to the same class, which

suffers from infirmity on the ground of doctrine of quality.

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

2.8 Democracy: Expectation from Judiciary

In the preamble of Constitution people have resolved to Constitute India into

Democratic Republic which shall be sovereign socialist and secular. In preamble lies

the message of Constitution to its functionaries is it, the three organs of the

Government or other bodies or authority or the officers. The advent of Political

Democracy in India was unique and distinct. The Constitution of India as adopted on

26th November 1949, created a democratic republic and pledge to secure justice,

liberty, equality and fraternity for all its citizens.

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.

The way democracy was brought about in India by a Constitution Assembly

constituted through a limited franchise, would reflect that it was constructed by an

enlightened elite in accordance with its conception of a modern State.1

2.8.1 Political Democracy

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.

The regional movements became pan India movement when Jaiprakash

Narayan, a veteran Gandhian, agreed to take command of the movements. While

these movements were on, Indira Gandhi was unseated from her seat in Parliament

following a verdict of the Allahabad High Court on the petition which was filed

challenging her election. Instead of taking the verdict as one within the Constitutional

framework, the process of democracy was sought to be stifled and resort was taken to

the emergency provisions of the Constitution and fundamental rights were suspended

and leaders who had been participating in the movement were imprisoned. However,

such a State of affairs could not continue as by this time democratic mindset of people

at large was firmly rooted. Within two years of the invoking of emergency provisions,

fresh elections had to be called to let the democracy have free play. In the ensuing

elections, there was realignment of political forces and different factions of the

political spectrum vied for sharing power. In fact the outcome of the election results

was stunning for the observer at macro-level. Indira Gandhi herself lost election and

Congress party which has a resounding performance in the earlier election, lost out in

numbers. Resultantly, the order sit put their together hurriedly to clobber up a

coalition to form a Government styled as Janata Government. Thus coalition was of

those groups who had come together for a common cause of fighting emergency and

no ideological bounding or well thought out common programme. Resultantly there

were squabbles and development process had a setback. Political democracy once

again responded by voting back congress Party in 1890 with the message that

economic development and that too inclusive one involving people of different strata

must be taken up a prori. So the process of economic development was recorded to

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accommodate all groups and thus it had to be populist and not necessarily most

efficient.

Thus, India stand divided truly in two India’s broadly speaking. In a

democratic society, we would term that there is one India which is dominant in

market and lags in vote bank and there is another India which lags in market but is

strong in vote. In a country which swears by being Socialist Democratic Country

where disadvantaged would be specially taken care of such a situation is vitriolic.1

2.8.2 Democratic Constitution

As we begin our task we quickly discover, however, that various associations

and organization calling themselves “democratic” have adopted many different

Constitutions differ in important ways. As one example, the Constitution of the

United States provides for a powerful chief executive in the presidency at the same

time for a powerful legislature in the Congress; and each of these is rather

independent of the other. By contrast, most European countries have preferred

parliamentary system in which the chief executive, a prime minister, is chosen by the

parliament. One could easily point to many other important differences. There is, it

appears, no single “democratic” Constitution.

We know begin to wonder whether these different constitutions have

something in common that justifies their claims to being “democratic”. And are some

perhaps more “democratic” than others-, what does democracy means-Alas; we soon

learn that the term is used in a staggering number of ways. Wisely, we decide to

ignore this hopeless variety of definitions, for Constitution, that will determine how

the association’s decisions are to be made. And our Constitution must be in

conformity with one elementary principle: that all the members are to be treated

(under the Constitution) as if they were equally qualified to participate in the process

of making decisions about the policies the association will pursue. Whatever may be

the case on other matters, then, in governing this association all members are to be

considered as politically equal?2

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

2.8.3 Criteria for a Democratic Process

Within the enormous and often impenetrable thicket of ideas about

democracy, is it possible to identify some criteria that a process for governing an

association would have to meet in order to satisfy the requirement that all the

members are equally entitled to participate in the association’s decisions about its

policies- There are, at least five such standards.

(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.

(3) Enlightened understanding. - Within reasonable limits as to time, each member

must have equal and effective opportunities for learning about the relevant

alternative policies and their likely consequences.

(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

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preponderant majority of human beings-at times, all-have been subject to non-

democratic rulers.1

2.8.4 Fundamentals of Democracy

1. Democracy helps to prevent Government by cruel and vicious autocrats

Perhaps the most fundamental and persistent problem in politics is to avoid

autocratic rule. Throughout all recorded history, including our own times, leaders

driven by megalomania, paranoia, self interest, ideology, nationalism, religious belief,

convictions of innate superiority, or sheer emotion and impulse have exploited the

State’s exceptional and violence to serve their own ends. The human costs of despotic

rule rival those of disease, famine, and war.

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.

Or consider Adolph Hitler, the autocratic ruler of Nazi Germany (1933-1945).

Not counting tens of millions of military and civilian causalities resulting from World

War II, Hitler was directly responsible for the death of six million Jews in

concentration camps as well as innumerable opponents, poles, gypsies, homosexuals

and members of other groups he wished to exterminate.

Under the despotic leadership of Pot in Cambodia population: an instance, one

might say, of self-inflicted genocide. So great was Pol Pot’s fear of the educated

classes that they were almost exterminated: wearing spectacles or having uncalloused

hands was quite literally a death warrant.

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.

2. Democracy guarantees its citizens a number of fundamental rights that

non-democratic systems do not, and cannot, grant

Democracy is not only a process of governing. Because rights are necessary

elements in democratic political institutions, democracy is inherently also a system of

rights. Rights are among the essential building blocks of a democratic process of

Government. Consider, for a moment, the democratic standards. Is it not self-evident

that in order to satisfy these standards a political system would necessarily have to

insure its citizens certain rights. Take effective participation: to meet that standard,

would not its citizens necessarily process a right to participate and a right to express

their views on political matters, to hear what other citizens have to say, to discuss

political matters with other citizens or consider what the criterion of voting equality

requires: citizens must have a right to vote and to have their votes couple fairly. So

with the other democratic standards: clearly citizens must have a right to investigate

alternatives, a right to participate in deciding how and what should go on the agenda,

and so on.

By definition, no non-democratic system allows its citizens (or subjects) this

broad array of political rights. If any political systems were to do so, it would by

definition, become a democracy.

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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.

Because of the appeal of democratic ideas, in the twentieth century despotic

rulers have often cloaked their rule with a show of “democracy” and “elections”.

Imagine, however, that in such a country all the rights necessary to democracy

somehow become, realistically speaking, available to citizens. Then the country has

made a transaction to democracy-as happened with great frequency during the last

half of the twentieth century.

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.

3. Democracy insures its citizens a broader range of personal freedom than

any feasible alternative to it

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

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disorder –“anarchy” in its popular meanings-then a good State would be superior to

the bad State that is likely to follow upon the heels of anarchy.

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.

4. Democracy helps people to protect their own fundamental interests

Everyone, or nearly everyone, wants certain things: survival, food, shelter,

health, love, respect, security, family, friends, satisfying work, leisure and others. The

specific pattern of your wants will probably differ from the specific pattern of

another’s. Like most people, one will surely want to exercise some control over the

factors that determine whether and to what extent we can satisfy our wants-some

freedom of choice, an opportunity to shape our life in accordance with our own goals,

preferences, tastes, values, commitments, beliefs. Democracy protects this freedom

and opportunity better than any alternative political system that has even been

devised.

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.

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5. Only a democratic Government can provide a maximum opportunity for

persons to exercise the freedom of self-determination-that is to live under

laws of their own choosing

No normal human being can enjoy a satisfactory life except by living in

association with other persons. But living in association with others has a price; we

cannot always do just what do just what we like. As we left our childhood behind, we

cannot always do just what do just what we like. As we left our childhood behind, we

learned a basic fact of life: what we would like to do sometimes conflicts with what

others would like to do we have also learned that the group or groups to which we

want to belong follow certain rules or practices that as a member we too, will have to

obey. Consequently, if we cannot simply impose our wishes by force, then we must

find a way to resolve our differences peacefully, perhaps by agreement.

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.

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(ii)We will be guaranteed opportunities for discussion, deliberation, negotiation, and

compromise that in the best circumstances might lead to a law that everyone will find

satisfactory.

(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.

6. Only a democratic Government can provide a maximum opportunity for

exercising moral responsibility

What does it mean to say that we exercise moral responsibility…It means,

that we adopt our moral principles and make decisions that depend on these principles

only after we have engaged in a thoughtful process of reflection, deliberation,

scrutiny, and consideration of the alternatives and their consequences. For we to be

morally responsible is for us to be self-governing in the domain of morally relevant

choices.

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.

7. Democracy fosters human development more fully than any feasible

alternative

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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.

8. Only a democratic Government can foster a relatively high degree of

political equality

One of the most important reasons for preferring a democratic Government is

that it can achieve political equality among citizens to a much greater extent than any

65

feasible alternative. But why should we place a value on political equality---because

the answer is far from self-evident.

The advantage of democracy would tend to apply to democracies past and

present. Some of the political institutions of the democratic systems with which we

are familiar today are a product of recent centuries; indeed, one of them, universal

adult suffrage, is mainly a product of the twentieth century. These modern

representative systems with full adult suffrage appear to have additional advantages

that could not necessarily be claimed for all earlier democracies and republics.

9. Modern representative democracies do not fight wars with one another

This extraordinary advantage of democratic Government was largely

unpredicted and unexpected. Yet by the last decade of the twentieth century the

evidence had become overwhelming. Of thirty-four international wars between 1945

and 1989 none occurred among democratic countries. What is more “there has been

little expectation of or preparation for war among them either.” The observation even

holds true before 1945. We back into the nineteenth century, countries with

representative Governments and other democratic institutions, where a substantial part

of the male population was enfranchised, did not fight wars with one another.

Of course modern democratic Government has fought wars with

nondemocratic countries, as they did in World War 1 and 2. They have sometimes

interfered in the political life of other countries, even weakening or helping in the

overthrow of a weak Government.

Nonetheless, the remarkable fact is that modern representative democracies do

not engage in war with one another. The reasons are not entirely clear. Probably the

high levels of International trade among modern Democracies predispose them to

friendliness rather than war. But it is also true that democratic citizens and leaders

learn the Act of compromise. In addition, they are inclined to see people in other

democratic countries as less threatening, more like themselves, more trustworthy.

Finally, the practice and history of peaceful negotiations, treaties, alliances and

common defense against non-democratic enemies reinforce the predisposition to seek

peace rather than fight wars.Thus a more democratic world promises also to be more

peaceful world.

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10 Countries with democratic Governments tend to be more prosperous than

countries with non-democratic Government

Until about two centuries ago, a common assumption among political

philosophers was that democracy was best suited to a frugal people: affluence, it was

thought, was a hallmark of aristocracies, oligarchies, and monarchies, but not

democracy. Yet the experience of the nineteenth and twentieth century’s

demonstrated precisely the opposite. Democracies were affluent, and by comparison

non-democracies were, on the whole, poor.

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.

Democratic typically possess other economic advantages over most non-

democratic systems. For one thing, democratic countries foster the education of their

people; and an educated work force is helpful to innovation and economic growth. In

addition, the rule of law is usually sustained more strongly in democratic countries;

courts are more independent; property rights are more secure; contractual agreements

are more effectively enforced; and arbitrary intervention in economic life by

Government and politicians is less likely. Finally, modern economics depend on

communication, and in democratic countries the barriers to communication are much

lower. Seeking and exchanging information is easier, and far less dangerous than it is

in most non-democratic regimes.

67

In sum, despite some notable exceptions on both sides, modern democratic

countries have generally tended to provide a more hospitable environment in which to

achieve the advantages of market economies and economic growth than have the

Government of non-democratic regimes.

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

2.8.5 Democracy in Indian context

According to Ambedkar, democracy means fundamental changes in the social

and economic life of the people and the acceptance of those changes by the people

without resorting to disputes and bloodshed. He wanted to establish the principle of

one man, one vote and one value not only in the political life of India but also in

social and economic life. He wanted political democracy to be accompanied by social

democracy. He gave central importance to social aspects of democracy over political

aspects, unlike many others whose discourse on democracy is confined to the political

and institutional aspects. Ambedkar paid greater attention to social linkage among

people than separation of powers and constitutional safeguards for democracy. The

concept of power contained in his thinking has a direct relationship between social

power and political power. He was conscious of the social and economic inequalities

which corrode the national consciousness of the Indian people. Ambedkar said, “We

must make our political democracy a social democracy as well. Political democracy

cannot last unless there lies at the lease of it social democracy.

Ambedkar paid serious attention to religious notions that promote democracy.

Ambedkar viewed the religious foundation of caste as the fundamental obstacle to

democracy in India on the one hand and the Buddhist doctrine of liberally, equality

and fraternity as the foundations for democracy on the other hand. He writes, “It is

common experience that certain names become associated with certain notions and

sentiments, which determine a person’s attitude towards men and things. The names,

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 thinks of democracy from the viewpoint of practical life. He

belongs to the realistic school of political scientists. He is not bothered about the

principles and theories of political science. During the national improvement, his aim

has to have justice and freedom for the people in the real sense. He aspired for having

a Government of the people, for the people and by the people. According to

Ambedkar, democracy means no slavery, no caste, and no coercion. He wants free

thoughts that choice and capacity to live and let live, which his conscience, would be

the right path to democracy. Ambedkar says, “Democracy is a mode of associated

living. The roots of democracy are to be searched in social relationship, in terms of

the associated life between the people who form the society.”

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.

In Indian society, class structure is a positive danger to democracy. This class

structure made a distinction of rich and poor, high and low, owners and workers, and

permanent and sacrosanct parts of social organization. “Practically speaking in a class

structure there is, on the other hand, tyranny, vanity pride, arrogance, greed,

selfishness and on the other, insecurity, poverty, and degradation, loss of liberty, self

reliance, independence, dignity and self respect.

69

The democratic principles of life, liberty and pursuit of happiness are

considered to be the essentials of human life in Ambedkar’s concept of democracy.

He attaches more importance to human well being and human rights.

The effective opposition is an important factor in the working for a successful

democracy. Democracy means a veto power.1

2.9 Democracy-Form and method of Governance

Democracy to Ambedkar is “a form and a method of Government whereby

revolutionary changes in the economic and social life of the people are brought about

without bloodshed.” In democracy, there should be no tyranny of the majority over

the minority. The minority must always feel safe that although the majority carrying

on the Government, the minority will not be hurt and that the minority will not be

imposed upon. Ambedkar appreciated Harold Laski for his insistence on the moral

order as a basic necessity of democracy. He says that if there is no moral order,

democracy will get to pieces. It requires a “Public conscience.” A political democracy

without an economic and social democracy is an invitation to trouble and danger.

Social democracy alone can assure to the masses the right to liberty, equality and

fraternity. So, democracy is not only a form of Government but a way of life through

which social justice can be established. Social justice ensures that society should

promote the welfare of all. Democracy is a dynamic attitude towards human life. It

attaches a great importance to virtues like tolerance and peaceful methods. Thus,

parliamentary democracy involves non-violent methods of action, peaceful ways of

discussion and acceptance of decision with faith and dignity. There are two pillars on

which parliament system rests. This system needs an opposition and free and fair

elections. Ambedkar says, “In a parliamentary democracy, there should be at least two

sides. Both should know each other well. Hence a ‘financial opposition’ is needed

opposition which is the key to a free political life. No democracy can be without it.”

In modern times, Dr. Ambedkar appears to educate and enlighten people to adopt the

fair means for a change of Government. Election must be completely free and fair.

People must be left themselves to choose whom they want to send to the legislatures.

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

seats of Assemblies and Parliament by sheer communal majority voting is always

communal, because the minority communities are coerced and tyrannized for casting

their vote in former of a particular candidate.

The democratic principle of life, liberty and pursuit of happiness are

considered to be the essentials of human life in Ambedkar’s concept of democracy.

He attaches importance to human well being and human rights. The essence of

democracy, to Ambedkar, is that as many members of a society as far as possible

should share in the exercise of human rights. It means that there should be equal

opportunities for all citizens and harmony among the claims of each person.

Discrimination in human rights is the very negation of social and political democracy.

Thus, Ambedkar puts emphasis on equality and liberty of human rights.1

2.9.1 Parliamentary democracy

According to Ambedkar, parliamentary democracy has all the marks of a

popular Government, a Government of the people, by the people, for the people. In

parliamentary democracy, there is the executive who is subordinate to the limitative

and bound to obey the legislative. The judiciary can control both the executive and

legislative and keep them both which prescribed bounds. Ambedkar says,

parliamentary democracy has not been at a standstill. It was progressed in three

directions. It began with equality of political rights by expanding in the form of equal

suffrage. Secondly, it has recognized the principle of equality of social and economic

opportunities. Thirdly, it has recognized that the State cannot be held at bay by

corporation which is anti social in their purpose. Parliamentary democracy produces

the best in the long run, because it assigns great significance to virtues like ability and

cooperation, mutual respect and self help, discipline and devotion to work, for the

millions of people.

The system of parliamentary democracy, thus, embodies the principle of

change and continuity to which Ambedkar attaches great importance. To him, only

the spirit of the people can help parliamentary democracy to function well. People and

democracy are closely related to each other.2

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

2.9.2 Economic Democracy

Ambedkar says, the second wrong ideology which has initiated

parliamentary democracy is the failure to realize that political democracy cannot

succeed where there is no social and economic democracy. Some way question this

proposition. To those who are disposed to question it. I will ask a counter question.

Why parliamentary democracy collapsed so easily in Italy, Germany and Russia----

Why did it not collapse so easily in England and the USA--- To any mind, there is

only one answer—namely, there was a great degree of economic and social

democracy in the latter countries than it existed in the former. Parliamentary

democracy developed a passion for liberty. It never mode even nodding acquaintance

with equality. It failed to realize the significance of equality and did not even

endeavor to strike a balance between liberty and equality.1

2.9.3 Social Democracy

The democracy included human concept of his social democracy included

human treatment and human rights to all, without which it can be no sure and stable

political life anywhere. The 19th century meaning of democracy is that each individual

should have a vote, does not stand up to full test of social and political

democracy.Without social democracy, neither political liberty, nor the unity of the

nation can be maintained. According to him, political democracy rests on four

premises:-these are:-

(a) The individual is an end in him.

(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

1G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 437 2G.P. Tripathi, Judicial Process, First Edition, Central Law Publications, (2013) p. 439

72

2.10 E-Democracy

E-Democracy combination of the words “electronic” and “democracy” is a

form of direct democracy representing the use of information and communication

technologies and strategies by democratic actors within political and governance

processes of local communities, nations and on the international stage. Democratic

actors/sectors include governments, elected officials, the media, political

organizations and citizens/voters.

E-Democracy suggests greater and more active citizen participation enabled

by the internet, mobile communications, and other technologies in India today’s

representative democracy as well as through more participatory or direct forms of

citizen involvement addressing public challenges.

E-democracy is a relatively new concept, which has surfaced out of the

popularity of the internet and the need to reinvigorate interest in the democratic

process. Access is the key to creating interest in the democratic process. Citizens are

more willing to use Websites to support their candidates and their campaign drives.

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

2.10.1 Meaning of E-Democracy

There are many interpretations of what constitutes e-Democracy as there are

interpretations of democracy. And because of e-Democracy is in its beginning stages,

there is much confusion about what it encompasses and how to clearly define it.

Steven Clift, of DO Wire, is an acknowledged expert and leader in the world

wide e-Democracy movement. He describes e-Democracy as referring to “how the

internet can be used to enhance our democratic processes and provide increased

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

2.10.2 Tools of E-Democracy

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.

To develop these public-sector portals or platforms, governments have the

choice to internationally develop and manage, outsource or sign a self-funding

contract. The self-funding model creates portals that pay for themselves through

convenience fees for certain e-government transactions. Early players in this space

include government one Solutions, First Data Government Solutions and NIC, a

company built on the self-funded model.

Social networking is an emerging area for e-democracy. The social

networking entry point is within the citizen’s environment and the engagement is on

the citizen’s terms. Proponents of e-government perceive government use of social

networks as a medium to help government act more like the public it serves.

Examples of state usage can be founded at The Official Commonwealth of Virginia

Homepage, where citizens can find Google tools and open social forums. Government

and its agents also have the opportunity to follow citizens to monitor satisfaction with

services they receive. Through List Serves, RSS feeds, mobile messaging, micro-

blogging services and blogs, government and its agencies can share information to

citizens who share common interests and Government is also concerns. Government

is also beginning to Twitter.2

1 Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada Prakashan , New Delhi (2011) pp. 117-118 2Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada Prakashan , New Delhi (2011) p. 24

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2.10.3 Practical issues with E-Democracy

E-democracy has a number of practical issues surrounding it. In the media, on

the Internet, and in popular consciousness, there is a strong and generally

unchallenged view that the Internet is the new electronic cradle of democracy. The

original source of this view is probably the relatively unfettered speech found in

Internet newsgroup, mailing lists, blogs, wikis and chat rooms.1

2.10.4 Citizen’s role in E-Democracy

The information capacity available on the Internet allows citizens to become

more knowledgeable about government and political issues, and the interactivity of

the medium allows for new forms of communication with government and elected

officials. The posting of contact information, legislation, agendas, and policies makes

government more transparent, potentially enabling more informed participation both

online and offline.2

2.10.5 Internet as a campaign tool

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.

Most importantly, the internet is a many-to-many communication medium where

radio and television, which broadcast few-to-many, and telephone broadcast few-to-

few, are not. Also, the Internet has a much greater computational capacity allowing

strong encryption and data base management, which is important in community

information access and sharing, deliberative democracy and electoral fraud

prevention. Further, People use the Internet to collaborate or meet in as asynchronous

manner-that is, they do not have to be physically gathered.

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-

1Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada Prakashan , New Delhi (2011) p. 24-25 2Uttam 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

2.10.6 Electronic Direct Democracy

Electronic direct democracy is the strongest form of direct democracy in

which people are involved in the legislative function. The notion is utopian in the

present capitalistic world, because realistically the internet and other electronic

communication technologies are used only to ameliorate the bureaucracy involved

with referendums. Many advocates think that also important to this notion are

technological enhancements to the deliberative process. Electronic direct democracy

is sometimes referred to as EDD; many other names are used for what is essentially

the same concept. EDD requires electronic voting or some way to register votes on

issues electronically. As in any direct democracy, in an EDD citizens would have the

right to vote on legislation, author new legislation, and recall representatives.

Liquid democracy or direct democracy with delegable proxy, to vote on their

behalf while retaining the right to cast their own vote on legislation. The voting and

the appointment of proxies could be done electronically.2

2.10.7 ICT’s and political participation

Information and communication technologies (ICTs) play a major role in

organizing and informing citizens in various forms of civic engagement. ICTs are

used to enhance active participation of citizens and to support the collaboration

between actors for policy-making purposes within the political processes of all stages

of governance. ICTs offer citizens not only the means to organize themselves, but also

1Uttam 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

to produce cultural codes to represent themselves. ICTs can be seen as an important

enabler to the empowerment of citizens or emancipation of citizens.1

2.10.8 Electronic Voting

Electronic voting also known as e-voting is a term encompassing several

different types of voting, embracing both electronic means of casting a vote and

electronic means of counting votes. Electronic voting technology can include punch

cards, optical scan voting system and specialized voting kiosks (including self-

contained Direct-recording electronic (DRE) voting system). It can also involve

transmission of ballots and votes via telephones, private computer networks, or the

Internet.

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

1Uttam 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

2.10.9 The Evolution of E-Democracy

Does the evolution of e-Democracy practice, such as online consultations,

enhance the current system whereby the polity governs society, and continues to have

limited and controlled input from the citizen, or shall we see the evolution of a new

form of democracy. These are pressing issues for modern government s as the new

technologies are contributing to the creation of faster communications, the sharing of

information and knowledge, and the emergence of new forms of our respective

cultures. E-Democracy is explored as a subset to the greater, and more important,

philosophical topic of democracy itself. This sets the framework for an assessment of

whether or not e-democracy shall be a natural extension of representative and liberal

democracy, as practiced today in most western countries.

These reports to date represent guideline s for policy implementations for e-

Governance that can be used by Governments, whether they are developed or

developing countries.1

2.10.10 E-Governance and E-Democracy: Inter-relationship

Some proponents of e-Governance in Canada and internationally have

dispensed with the term ‘E-Governance’. For many e-Governance is used to

encompass all electronic activities and programmers’, with e-Democracy included as

a ‘growing’ part of E-Governance term such as ‘digital government’ and ‘digital

voice’ have more and more come into the used instead. E-Democracy is treated more

as a result than as an equally important part of the equation. The emphasis on the use

of ICTs by Government and elected officials in the business of government often

overshadows the real difficulties involved in online citizen engagement, which is

presented almost as an extension of the more traditional consultation methods. In fact,

the subject of online consultation is actually a work in progress and we are witnessing

the early stages of its growth.2

1Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada Prakashan , New Delhi (2011) p. 107 2Uttam Kumar Singh, Akshaya Kumar Nayak and Avinash Chiranjeev, E-Governance, Jnanada Prakashan , New Delhi (2011) p. 119

78

2.10.11 The International dimension of Democracy

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.

Historical experience reveals that democracy cannot be attained without a

system of government which divides power among three co-equal branches each with

certain prerogatives of power, and where the role of the judiciary is to channel

power-related conflicts through a legal process which uses agreed legal reasoning to

interpret and apply pre-existing law1.

The factors taken into account by contemporary commentators and

proponents of different perspectives on democracy are not always clear or easily

identifiable; and when they are, it is not always apparent that the various arguments

they advance are followed consistently or logically. This is evident in the literature

on contemporary political thought, but even more so in the public debate over

democracy. One of the sources of this intellectual and political confusion is the fact

that the term democracy is often used interchangeably and without distinction with

respect to three different concepts for which the term is employed. They are:

1. Democracy as a process, with all that which it comports of mechanisms,

procedures and formalities — from political organization to elections.

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.

These three concepts are neither mutually self-excluding nor contradictory;

on the contrary, they are on the same continuum. But it is important to distinguish

between them because in a sense they represent three levels or stages of democracy.1

whatever meaning and content is given to the term democracy, what essentially

distinguishes it in essence from other systems of government is the right of popular

participation in governance, and the legitimacy and legitimation of government and

governance. The Vienna Declaration on Human Rights states: "Democracy is based

on the freely-expressed will of the people to determine their own political,

economic, social and cultural systems and their full participation in all aspects of

their lives,"2 But, it would be misleading to read these assertions only in light of

western cultural and socio-political experiences. As Secretary-General Boutros-

Ghali stated in his 1995 Report to the UN General Assembly: "Democracy is not a

model to be copied from certain states, but a goal to be attained by all peoples and

assimilated by all cultures. It may take many forms, depending upon the

characteristics and circumstances of societies."3

The following principles of Democracy are:-

1. Democracy must also be recognized as an international principle, applicable to

international organizations and to States in their international relations. The

principle of international democracy does not only mean equal or fair

representation of States.

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)

2. The principles of democracy must be applied to the international management

of issues of global interest and the common heritage of humankind, in

particular the human environm

3. To preserve international democracy, States must ensure that their conduct

confirms to international law, refrain from the use or threat of force and from

any conduct that endangers or violets the sovereignty and political or

territorial integrity of

peaceful means.

4. A democracy should support democratic principles in international relations.

In that respect, democracies, must refrain from undemocratic conduct, express

solidarity with democrati

governmental organizations which work

violations at the hands of undemocratic regimes. In order to strengthen

international

international crimes and serious violations of fundamental human rights and

support the establishment of a permanent international criminal court.

The principles of democracy must be applied to the international management

of issues of global interest and the common heritage of humankind, in

human environment.

To preserve international democracy, States must ensure that their conduct

confirms to international law, refrain from the use or threat of force and from

any conduct that endangers or violets the sovereignty and political or

territorial integrity of other States and take steps to resolve their difference by

peaceful means.

A democracy should support democratic principles in international relations.

In that respect, democracies, must refrain from undemocratic conduct, express

solidarity with democratic governments and non-State actors like non

governmental organizations which work for democracy and human rights,

violations at the hands of undemocratic regimes. In order to strengthen

criminal justice, democracies must reject impunity f

international crimes and serious violations of fundamental human rights and

support the establishment of a permanent international criminal court.

80

The principles of democracy must be applied to the international management

of issues of global interest and the common heritage of humankind, in

To preserve international democracy, States must ensure that their conduct

confirms to international law, refrain from the use or threat of force and from

any conduct that endangers or violets the sovereignty and political or

and take steps to resolve their difference by

A democracy should support democratic principles in international relations.

In that respect, democracies, must refrain from undemocratic conduct, express

State actors like non-

for democracy and human rights, and

violations at the hands of undemocratic regimes. In order to strengthen

criminal justice, democracies must reject impunity for

international crimes and serious violations of fundamental human rights and

support the establishment of a permanent international criminal court.