Democracys challenges

Three books explore the nature and content of Indian democracy from three different perspectives.

DR B.R. AMBEDKAR, the architect of the Indian Constitution, had famously said that democracy in India is only top dressing on an Indian soil, which is essentially undemocratic. At a recent function to mark the launch of his book Democracy and Its Institutions, the pre-eminent sociologist Andr Bteille remarked that democracy had got into our bloodstream. Juxtaposing these two descriptions of the same phenomenon by two foremost observers of Indian polity in their times, one is likely to wonder whether Indias experiment with democracy in the past 65 years has yielded any remarkable results.

Democracy in India has been a fascinating subject for scholars, who are enamoured of its superficial signs of success, as reflected in the ritual conduct of periodical elections to Parliament and the State Assemblies and the almost regular swapping of roles by the ruling and opposition parties after an election.

As scholars examine this facile success story, the limitations inherent in this approach to understanding democracy become clear to them. They realise that the apparent success of Indian democracy is not genuine as it is devoid of normative content. They also find that explaining the aberrations in the functioning of democracy not only adds to scholarship but improves our ability to identify the deficiencies in the present system and propose effective remedies. In other words, an honest intellectual exercise to understand Indian democracy makes an unstated value judgment that India should not only appear to be democratic but should actually strive to be so.

The three books under review deal with different aspects of Indian democracy. They have been authored by scholars drawn from three different disciplines: law, sociology, and political science. This multidisciplinary perspective helps us, as readers, to introspect on the current challenges facing Indian democracy in a more objective manner.

The challenges have been too sudden and recent for anyone to understand their likely long-term significance. It may be that some of us are so overconfident of the resilience of Indian democracy that we dismiss the seriousness and intensity of the challenges and the undercurrents that sustain them. To be explicit, the various protest movements by civil society against organised politics in the country represent these challenges; their popularity among the middle classes confounds us and leaves us with no clue about the future direction of Indian democracy. As the scholar Javeed Alam has articulated in his book Who Wants Democracy? (2004), democracy is valued in itself; but its integral characteristic, the competitiveness for power among parties, is devalued and held with suspicion. What Alam described as the contradiction in the political consciousness has now sharpened, with more and more people becoming distrustful of politics and the institutions that represent it because of the huge gap between rising aspirations and the inability of the political system to meet them even halfway. If the popular mood about democracy is its chief foundation, the present should cause sufficient concern. Put in this context, what these contemporary scholars tell us about the road traversed so far should alert us to the risks ahead.

In Democracy and its Institutions, Bteille observes that the failure of democracy in many parts of the world is at the bottom the failure of its institutions. He adds that the failure of democratic institutions is due, in no small measure, to the failure of trust between the government and the opposition. He remarks that if a nation is to function as a democracy, its people must show some regard for two principles, the rule of numbers and the rule of law, but the balance between them is not struck in the same way in all nations and it is rarely, if ever, a stable one.

He explains in the introduction: Many Indians, including highly educated ones, easily run out of patience with the procedures of democracy which are an essential part of any constitutional order. The voice of the people has for them a much more immediate and palpable appeal....There has been a slow but perceptible shift from constitutional to populist democracy in the 60 years since we became a republic. The book creates in the reader some idea of the nature and significance of this shift.

Today, the popularity of Arvind Kejriwal, who has managed to secure disproportionate space in the media because of his almost daily dose of exposs against political parties and leaders belonging to both the ruling combine and the opposition, raises serious questions. While the rise of alternative politics is welcome, its positioning of itself as the political alternative by seeking to appropriate the entire opposition space has raised concern because there has been no serious reflection on the consequences of overthrowing an existing government and opposition through a popular upsurge.

Bteille warns that if the opposition is not constituted as an institution, the responsibility for forming a new government will fall on the military. If both the ruling dispensation and the opposition are seen as corrupt and worthy of being put aside, the alternative cannot emerge in a vacuum. Therefore, he rightly suggests that we must not treat lightly what we owe to our democratic institutions for enabling us to manage our political affairs without being indebted to the army.

Bteille believes that the people of India are destined to oscillate endlessly between the two poles of constitutionalism and populism without ever discarding one or the other.

To him, numbers are important in a democracy at every levelwhether at the time of elections to Parliament or a State Assembly or when the majority of a government is tested on the floor of the House. It is inevitable that this obsession with numbers leads to manipulation and coercion.

The courts, on the other hand, determine what is right and what is wrong in the light of the Constitution and the laws. Bteille puts it succinctly: Where there is violation of the law, the courts have to rule against the violators even where they constitute a majority. In our country, the courts have a special significance because disregard for the rule of law is very widespread in the public domain.... Democracy requires institutions to ensure that the rule of law is not overwhelmed by the weight of numbers.

The second book, Rule of Law and Human Rights in India, a collection of essays written mainly by eminent legal experts in honour of Justice H.R. Khanna, is ambitious in its scope. The book hails Justice Khanna as a saviour of the rule of law and constitutionalism in the country. He had delivered a dissenting judgment in the habeas corpus case during the Emergency of 1975-77. In that case, he held that detention without trial is an anathema to all those who love personal liberty. For this dissent, the then political masters punished him by depriving him of his chance to become the Chief Justice of India though he was the senior-most judge of the Supreme Court. It was his judgment that tilted the balance in the Kesavananda Bharati case against the government, which argued before the court that the power of Parliament to amend the Constitution was absolute. The unamendable basic structure of the Constitution was an outcome of this case.

Interestingly, the book carries a foreword by Justice P.N. Bhagwati, who had authored the majority judgment in the habeas corpus case. Justice Bhagwati, in his tribute to Justice Khanna, says that he had a strong belief and conviction in the unassailability of the fundamental rights and independence of the judiciary and had willingly sacrificed the high office of the Chief Justice of India at the altar of his conviction.

In one of the essays, Manish Arora argues that if the Supreme Court had not decided ADM Jabalpur ( Additional District Magistrate of Jabalpur vs S.S. Shukla) the way it did, the Emergency would have come to an abrupt end because no High Court would have agreed with the governments reasons for detaining political stalwarts and other patriots for staging peaceful political protests across the country. In the ADM Jabalpur case, four out of five judges of the Supreme Courts Constitution Bench held that when the Emergency was in force, no person could challenge the legality of an order of detention in a High Court, as the rights under Articles 14, 21 and 22 of the Constitution remained suspended for the duration of the Emergency. The case, known as habeas corpus case, had reached the Supreme Court, as many High Courts had held that such orders of detention during the Emergency could be legally challenged.

Arora mentions that the Supreme Court is not proud of the ADM Jabalpur decision, with Justice Bhagwati having already gone on record pleading guilty for the judgment. The essay quotes Justice Bhagwati as having said: In the beginning, I was not in favour of the view that the majority took. But ultimately, I dont know why, I was persuaded to agree with them. I still feel that the whole judgment was against my conscience. It was an act of weakness on my part.

Perhaps to repent for what he did in that case, Justice Bhagwati pioneered the liberal and expansive interpretation of the provisions under Part III of the Constitution, particularly Article 21 guaranteeing the right to life and liberty. The emergence of public interest litigation is credited to Justice Bhagwati, and the PIL, in turn, enabled the courts to grapple with various rights, such as the right to free education, the right to livelihood, the right to a clean environment, the right to health care, the right to food security, the right to privacy and the right to information, and place them under far stronger protection than ever before.

Readers will find the essays devoted to some of these rights immensely useful in understanding the evolution of Indian jurisprudence. The legal scholar Upendra Baxi explores, in an essay, the protection of individual dignity taking the Delhi High Courts decision in the Naz Foundation case, decriminalising homosexual behaviour, as the case study. Lokendra Malik, in an in-depth study of some of the landmark PIL cases, analyses the role of PIL in promoting the rule of law. Other scholars have chosen to focus on health hazards and occupational diseases, the Public Trust Doctrine behind environmental human rights, the nexus between poverty and the rule of law, police reforms, the specific rights of the aged, and the issue of the right to privacy posed by the Unique Identification Number project.

In India, Pakistan and Democracy: Solving the Puzzle of Divergent Paths, Philip Oldenburg poses a question in the title of the introduction, Why India is a democracy and Pakistan is not (yet?) a democracy. The author, a research scholar at the South Asia Institute of Columbia University where he has taught political science since 1977, tries to answer it by chronologically dividing the book into two partsthe first 30 years since Independence, and the period following thatand focussing on the events during each period in both countries.

The author believes that the answers to the questions he has raised in the introduction lie in the counter-factual history that he conjures up. According to him, 1977 is the year in which, quite possibly, the paths of India and Pakistan were the closest to each other; after that two very different directions were chosen. He says, it is not difficult to imagine a very different outcome, one in which Pakistan would have moved towards a genuine democracy while India would have relapsed into a more ideologically driven and intensely harsh version of Indira Gandhis Emergency regime. This counter-factual history would have happened if Zulfiqar Ali Bhutto, the then Prime Minister of Pakistan, had succeeded in using Parliament and the courts to bring the bureaucracy and the military under democratic control. Similarly, a very different outcome would have determined the course of Indian history after 1977 had Indira Gandhi not called general elections in March that year.

Finding that this speculative reading of history is of limited use, Oldenburg relies on what appears to him as the familiar thesis: Indias great democratic momentum rested on what had been developed during the history of the nationalist movement, which was far older and had roots far deeper than Pakistans. But this still leaves unexplained why the two countries with a common history were left with institutions with varying degrees of strength and vitality. The authors answer is that Pakistans bureaucratic and military elite at the time of Independence believed that the stability of the state must take precedence over democratic procedures and, therefore, justified the suppression of those who wanted democracy.