The nation has just completed the biggest dance and festival of democracy. The people of India have exercised their supreme right, their vote to choose a government. This is the largest experiment undertaken in human history in the art of democratic living and governance. Never before and nowhere else has more than one sixth of the human race lived as one political entity under conditions...
The nation has just completed the biggest dance and festival of democracy. The people of India have exercised their supreme right, their vote to choose a government. This is the largest experiment undertaken in human history in the art of democratic living and governance. Never before and nowhere else has more than one sixth of the human race lived as one political entity under conditions of freedom and voted smoothly for the same or a new government. As Harrison Moore puts it in his The Constitution of the Commonwealth of Australia, the great underlying principle of the Constitution is that rights of individuals in a democratic set-up are sufficiently secured by ensuring each a share in political power. That is practically ensured by voting. The Indian voter, the ultimate master, has demonstrated his maturity and wisdom.
It is necessary and important to take an objective view of the election and its results, grasp its meaning and message and make a non partisan appraisal of the post poll scenario and its implications for our democracy and also think of the tasks ahead.
The expectation and anticipated result of the election was a landslide victory for the ruling BJP winning a two-thirds majority and the NDA getting 400 plus seats. The reality turned out to be different. The electorate sprang a surprise: An incredible and staggering verdict handed down by the silent anonymous voters ripped off the facade of invincibility around the BJP. It was returned as the single largest party but well short of a majority. The real victor has been the voter, or more correctly, Indian democracy. The result has proved that the soul of democratic India is sound. Can we not truly and proudly say that the conviction of Professor Rostow that the most important phenomenon of the post war era is the survival of Indian democracy has been proved more than right once again?
The run up to the General Election saw the level of political debate and discourse fall to an all time low. Electioneering took a down turn. It was a vituperative electoral campaign forgetting that it could be vigorous without being vindictive or slanderous or abusive. This was something that politicians of all hues were to guard themselves against, but freely indulged in. In a parliamentary democracy there are opponents but not enemies. There was more rhetoric and mudslinging than substance in the speeches. Nothing positive was offered by anyone in the campaign. It was only pointing fingers and calling names. Decency and decorum were forgotten. There was no debate whatsoever. The voter was not, and cannot always be, impressed by histrionics. Human nature cannot to be forgotten: The electorate loves and worships leaders, but when the spell is broken they transfer their allegiance elsewhere. A regime can be only as puissant as the sycophants and the time servers will make it. That should never be allowed to happen. Humility, decency and sincerity are imperative in public life and enhance its quality. It is essential that all speech and action must have a ring of sincerity. A commitment and adherence to democratic principles and constitutional values is supremely important and essential. All this was, and is, not easily discernible. Quite often the letter of the law is adhered to, but its spirit is buried six fathoms deep.
This election will go down in history as one of the most significant. It has combined continuity with change and struck a balance for the greater good. Our 'tryst with destiny' is not a stand-alone event of August 14-15, 1947 but a continuum in which the churning of democratic evolution happens. The significance and impact of this election will be felt for long. It is sobering for our democracy which seemed to have been a little 'high'. The verdict in the last two general elections gave an absolute majority to a single party after 30 years. But did that prove counter productive? The arrogance of parliamentary numerical strength and power perhaps was the undoing. But what has happened is in the country's interest.
India is too vast and too diverse a country that it needs to be governed by consensus. India is perhaps the greatest example of unity in a mosaic of diversities; it is essentially pluralistic. Unity and commonality are allright, the idea of a strong unified country is wholesome and beyond reproach, but to talk of uniformity in everything is to negate the very idea of India. The soul of India is pluralism and secularism. Pluralism, as is obvious, means that we have different strands in our nation, the differences in thinking, religion, language, culture, life style. Pluralist societies are the products of irreversible movements of history. Indeed they add strength and malleability, vivacity and colour to the society, that vivid charm which a combinative social motif alone can impart. The whole aim and idea is not the progressive assimilation of all in the majoritarian milieu, but rather to seek to devise political, social and legal means to prevent diverse groups from falling apart and ensure that they thrive and the nation progresses as a whole. It is inclusiveness.Secularism in the Indian context is certainly not anti God or anti religion. It is equal respect for all religions with the State not supporting any. It is sarva dharma samabhava. This has always been the cornerstone of our tradition and culture; it is also the signature tune of our Constitution.
There cannot, and should not, be any imposition of anything. Consultation is of the essence of democracy. The right to dissent, peacefully protest against and criticize governmental decisions and actions in a legitimate and lawful manner is an integral and essential part of democracy. We ought to keep clearly distinguished 'State' from 'government'. Criticism of and acts against government are not against 'State'. That is definitely not anti national.
The nation's pluralism and diversity can be secured only by a coalition of varied interests. That perhaps is what the election result also has indicated and vouched for. A feeling of fraternity which the Constitution underlines is of utmost importance. We need to build and foster concordant feelings. "Faith in America is faith in her free institutions or it is nothing…”, wrote Justice Douglas. So too faith in India is faith in the idea of India and all that it encompasses. The idea of India essentially takes within it our history and civilization dating back to millennia, our essential unity in the mosaic of diversities which indeed adds richness to that idea, certain enduring ways of life and eternal values crowning them with tolerance which Swami Vivekananda said represents in one word India and its faith and which India's philosopher-statesman and second President Dr. Radhakrishnan said is the tribute paid by the finite mind to the inexhaustibility of the infinite. He also perceptively remarked, “Why look at things in terms of this or that? Why not try to have both this and that?” That sums up the Indian ethos.
We chose for ourselves the path of constitutional democracy to work out our salvation. That, as a system of government, is the least harmful and comes closest to the ideal for the attainment of the security, welfare and happiness of the people. But then it is not self-executing. Freedom is fragile and evanescent. Certain conditions are pre-requisite for the survival of a free democracy which is not hewn out of granite. We need a sense of discipline and a spirit of moderation. Democracy depends upon compromise and accommodation which are attributes of cultivated political societies. Freedom cannot be inherited in the blood stream. Every generation will have to defend, cherish and nourish it. The Constitution is regarded as a social contract and two fundamental ideas underlie this: The value of liberty- the idea that 'will' and not 'force' is the basis of government; and the value of justice- that 'right' and not 'might' is the basis of society and of every system of political order.
The role of institutions in making democracy meaningful and successful is vital. A constitutional democracy can work only under institutional safeguards. Where institutions fail, a nation suffers. An institution's effectiveness is determined by its ability to be receptive to differences and perceptive to the need for dialogue. A cultivated respect for law and enduring institutions are therefore important. No institution is an abstraction. The working of all constitutional institutions is influenced and determined by those who man them. An institution is, however, much more than the sum total of all who compose it. Over emphasis on individuals, a kind of hero worship and developing personality cult are all anathema to democracy. We must restore credibility to our institutions. The checks and balances in the constitutional scheme, which may have decayed, must be strengthened and correct, effective systems put in place. These are issues of great moment and define our narrative and our future. All this requires political will. Hopefully, a convergence of varied interests and outlook in the ruling dispensation now may facilitate this.
A constitutional democracy implies that deliberative forces prevail over the arbitrary. The right to question, to scrutinize and to dissent is of the very essence. The cardinal feature of our system of government is the requirement that the executive enjoys the confidence of and is accountable to the legislature and ultimately to the people. The political theory behind representative democracy is that the legislature must reflect the opinion of the electorate. Parliament/legislature is a pivotal institution in a democracy. Its twin primary objectives are law making and holding the executive accountable. In both these aspects there appears to be a marked deterioration, indeed a dismal failure. It is therefore to be ensured that Parliament which is the temple of democracy and the instrument of democratic functioning is functional and effective. It is the high quality of debate and discussion that gives it its savour. Both the Government and the Opposition which has an equally important role in parliament and in a democracy have the vital responsibility of ensuring this. The idea of government under law means that it should serve not only what is thought from time to time to be our immediate material needs, but also certain enduring values which have a past and should be continually derived, enunciated and relevantly applied to changing times with its shifting emphasis and differing needs.
Constitutional conventions are as important as the constitutional provisions. The Speaker represents the House. The convention in England, and our Westminster model has borrowed and adopted many British constitutional conventions, is that once a person is elected Speaker, he is not to be associated with a political party and must be, and seen to be, impartial. Unfortunately, this convention has not been imbibed and put into practice in India. It is essential that we develop such healthy conventions and abide by them. If necessary, there should be a Constitution Amendment to ensure this. Equally significant is the convention that the Deputy Speaker's post is given to the Opposition.
It is imperative that there is free and fair discussion and exchange of ideas in the House. Indeed the Constitution confers such freedom to enable members to discharge their duties and functions freely and effectively. But many times free discussion and questioning which is what really reins in the executive and holds it accountable are wanting. Members cutting across party lines should effectively discharge their functions- to question and scrutinize governmental action. There is a fear that the Anti-Defection law discourages or impedes this. Such is not and can never be the purpose of any law. While the menace of defections is to be tackled, the law cannot undermine the very soul of our system of government-parliamentary democracy. In Kihoto case while upholding the constitutional validity of Schedule X, it has been clearly observed that the disqualification is confined to cases where a change of government is likely to be brought about or prevented as a result of voting or abstinence. Such instances would be confidence/no-confidence motions, Finance Bills or something touching the core of a political party's ideology or manifesto. The disqualification is attracted only to cases of voting or abstaining. It does not at all inhibit any discussion and questioning. Even voting or abstention would not, and should not, invite the penalty except in matters specified earlier. If required there may be a Constitution Amendment to clarify this.
Equally relevant in this context is the importance of the Question Hour which is the time when members shine a light on government functioning and government is really held accountable. That should never be suspended or dispensed with. In England from where we have adopted the conventions there is the Prime Minister's Question Time every week, when the PM has to be present in the House and answer all kinds of questions put to him by the Opposition as well as his own party men. This is another significant, desirable practice that we need to have. Indeed, it is heartening that we have the Chief Minister's Question Hour in Jharkhand. It is an accepted norm in a democracy that the Head of Government takes questions from the media and answers them. The Prime Minister should hold media conferences, take questions and answer them; there is not to be only a one way address.
Law making is the other primary function. Scrutiny of every legislation- plenary or subordinate- both at the level of committees and the full House, is imperative. Parliamentarians are entrusted with the sacred function of airing people's views and making laws for the people. Law must reflect the 'general will'- public opinion which is evolved as a consensus through informed debates and discussion. Law is not an end in itself but only a means of achieving social good.
Government has to be responsible and responsive.
The power of the State to implement and enforce obedience to the law carries with it the duty and responsibility of making the law known and understood in the right perspective. Government, it is said, is a potent, omnipresent teacher. It is the duty of every good, civilized government to promote the intelligence of its people, to discuss, inform and educate the nation. Law makers- both the executive which initiates legislation and the legislature which ultimately makes the law- should embark upon educating the people on the nuances of the laws and anything that affects them. We need to develop a culture to not pass any laws without a proper, informed debate. The amount of time that people spend in hearing each other talk is said to be an important constituent of political life. Enduring institutions depend upon the enduring support of ordinary people. To a query as to what kind of government the Constitutional Convention of 1787 had created in USA, Benjamin Franklin replied, “A republic, Madam, if you can keep it.” The most effectual means of preventing perversion of power and preserving the democratic republic 'is to illuminate the minds of the people at large.' This is what is of utmost need and urgency today.
It is equally important that the level of political discourse and parliamentary debates is maintained high and there is mutual respect and courtesy. The whole idea is that in a legislature you talk and deliberate, try to persuade and take decisions through discussion and persuasion. The volatile nature of raw public opinion should be refined through a process that gives elected representatives the opportunity to deliberate and exercise their judgments free from factional interests or majority intolerance. While we may have some exceptional good debates, there is certainly a sharp general fall. In this behalf the importance of wit and humour cannot be overlooked. Humour raises the level of debate and discussion, it also relieves the stress and tension. It is a great vehicle for getting a message across. It is rightly said that humour can make the wonderful moments of life truly glorious and tragic moments bearable. Indian parliamentary history and traditions have been exemplary in this regard. We have had parliamentarians of the highest calibre cutting across party lines. But unfortunately all this has been sadly missing in recent times.
As the NCRWC observed, while executive power is coextensive with legislative power, constituent power belongs exclusively to Parliament; its responsibility in that behalf is much greater and has to be effectively discharged. It is not uncommon that Constitution Amendment Bills are introduced and passed like any ordinary legislation, sometimes with minimal debate and discussion. It was recommended that there must be a permanent Constitution Committee of Parliament to deal with Constitution (Amendment) Bills in formulating proposals for amendment to the Constitution and for a priori scrutiny of such proposals. The implementation of this recommendation does not brook any delay.
Constitutionalism facilitates a democratic political system by creating an orderly framework within which decisions are made. An unfailing index to the maturity of a democracy is the degree of its respect for unwritten conventions. What is left unsaid in a constitution is as important as what is said; and the constitutional equilibrium can be preserved only by Obedience to the Unenforceable, both by the citizens and the government. Prof. Thomas Murray Taylor of the Aberdeen University captured this idea so profoundly and beautifully that beyond the sphere of duty which is legally enforceable, there is a vast range of significant behaviour in which the law does not and ought not to intervene. This feeling of obedience to the unenforceable is the very opposite of the attitude that whatever is technically possible is allowable. This power of self discipline is the very opposite of the fatal arrogance which asserts, whether in government or personal behaviour, that whatever is technically possible is licit. All through history, men have needed it to preserve them from the temper which hardens the heart and perverts the understanding. The realization of all this depends upon the recognition that constitutional morality is no less essential than constitutional legality. But constitutional morality is not something justiciable.
Constitutions may be easily copied, temperaments are not. Therefore, constitutional values and aspirations will have to be internalized in the psyche of the nation. We need to develop and always have a decorous regard for and play by the rules of the constitutional game. That one party does not do so or might not have done so is no reason or justification for another to do likewise. Everyone, the government and the governed, must all live by the Constitution and in a manner consistent with it. This election, in a way, would facilitate that and that is its gain. In the circumstances, the ruling party not securing a clear majority is good for the polity in that the government will hopefully be more restrained, accommodating, balanced and accountable.
In the ultimate analysis, however, any system would be as good as those who work it. We have to recognize that there is no legal solubility to all problems; law cannot provide a remedy for every ill that flesh is heir to. What is necessary and important is character, both individual and national. It is the weight of public opinion that will have to prevent any perversion of the system and ensure its smooth working. This seems to be a distant hope and goal, but for its attainment there should be ceaseless striving. Eternal vigilance is the price of liberty. All this brings home poignantly the memorable words of Justice Frankfurter that democracy is always a beckoning goal, not a safe harbour; and no office in the country is as important as that of a citizen.
Author is a Senior Advocate, Supreme Court of India
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