Democracy and the Rule of Law: Opposites or Coherence?

Chitrakshi Singh[1] & Darshan Upadhyaya[2]

Abstract

For the successful functioning of a democracy, the contribution that rule of law plays is of great significance and value. The founding fathers of our constitution realized the indispensable role the rule of law will play in safeguarding the democratic ideals of our nation in the coming days and thus Rule of Law is a standout and integral part of India’s constitution and democratic setup. There have been instances in India’s legal history after independence and until now, wherein, our ideological affinity towards rule of law has suffered casualty but the role that Indian courts guided by the constitution have played in safeguarding this ideology of rule of law for ensuring liberty of its citizens has been exemplary. From Shankari Prasad  v. The Union of India[3] to the Minerva mills case[4] we have indeed come a long way as a nation to define our ideologies and this journey which has not realized its goal yet has witnessed contrasting difference of opinion between the Judiciary and the governments which have ruled the country over the years in the way they have interpreted the constitution and the idea of rule of law. The present day India is rife with instances, wherein, the ideals which democracy and rule of law combined have envisioned to achieve have been shy and short of its mark. This paper delves into the theoretical as well as practical aspects of the relationship between Democracy and Rule of law, and acknowledges that while on one hand our constitution upholds the spirit of the Rule of law, the Indian society with its legislators and administrators has a lot more to do and achieve.

Introduction

It is a well-established fact that a country’s form of government serves as a yardstick to measure the well-being of that country. Obviously, a country with its form of government allowing its citizens having more say in the functioning of the country through their representative’s fairs out well among all the other countries with other forms of government. Democracy, as described by the U.S. president Abraham Lincoln as Government of the people, by the people, for the people is that form of government which is run by all the citizens of a country through their elected representatives.

The origin of democracy can be traced back to the 19th century, the period of enlightenment which walked the people of Europe past the era of blindly following the set norms without any rationale behind them. Divergence from the Divine Rights Theory to the Social Contract Theory was one of the remarkable changes brought about by the period of Enlightenment. The exponents of the Social Contract Theory advocated for a systemic regulation of the interests of the people in order to create a civil society marked by order and peace by surrendering some rights of the people to the sovereign. Nevertheless, the sacrosanctity of the theory is preserved in the fact that the powers of the sovereign were limited, hence saving the people from the tyranny of those in power.

In a modern successful democracy power is shared among what are popularly known as the pillars of democracy, namely, the legislature which makes the laws (the parliament), the executive which implements those laws and the Judiciary which interprets the laws made by the legislature.

On the other hand, failed democracies are characterized by severance of powers of these three pillars of democracy and their getting concentrated in one group or one person, rendering it a form of government having little or in some cases, no say of the people in the functioning of the country. This paves way for a pertinent question, herein, as to what is it that checks this diabolic consolidation of power into one particular person or group or, simply put, what differentiates a successful democracy from that of a failed one. The answer to this query lies in what was propounded by A.V. Dicey, The Rule of Law.

Rule of law, by ensuring the separation of powers and by having the checks and balances in place asserts and holds the supremacy of law in a country. It sees to it that the power stands divided between the three wings of democracy and does not consolidate into one of these three pillars or a person, thereby, saving it from falling into the clutches of aristocratic, authoritarian regime or other such regimes.

This ‘sharing of power’ in a democracy as protected by the rule of law is very fundamental to the healthy functioning of a democracy, as we will look into how in our further discussion.

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American constitution was the first constitution in the world which gave the Power of Judicial Review to courts of law in Marbury v. Madison. The case arose from a petition filed by William Marbury who had been appointed as the Justice of peace of district court of Colombia by President John Adams. Marbury’s commission was not subsequently delivered. Therefore, to get his documents delivered by the new Secretary of State, Marbury filed a petition to the Supreme Court, requesting it to force the Secretary of State to deliver the documents. The rule of law was applied here in this case and William Marbury was lawfully appointed the Justice of Peace of the concerned district court. The power of judicial review that took shape from this case allowed the Judiciary to scrutinize the state actions and ensure that the laws being passed by the state are lawful, rational and are that they are not repugnant to the letter and spirit of the constitution. 

When India gained independence from its imperial regime, the constitution makers did include the idea of Judicial Review in our constitution, giving Indian courts the power to do what their American counterparts had been doing since long now and thus ensuring the healthy functioning of democracy by doing away with unjust and unconstitutional laws. This power has given the Indian People the right to find out that whatever is being done to them by the state is legal or not and if it is not, and there exists such a law that abrogates and restricts the fundamental right of an individual then the courts have the power to declare such laws as null and void.

In India elections happen every 5 years. And with election comes the change in power. Now with power in their hands, what every government tries to do is to cement its powers and to make itself stronger. And the means by which they can achieve this is by amendments to the constitution, as the constitution is the sole authority of power. They thus amend the constitution according to their whims and fancies and derive power from it. The history of India is plagued by such instances. Nevertheless, the role of judiciary in sustaining rule of law in the country in consonance with the letter and spirit of the constitution is noteworthy.

Indian judiciary, following its English counterparts in common law legal system has accessorized the country with the gems of justice, equity and good conscience by interpreting the laws from time to time. One of the greatest results of such interpretation is the “basic structure theory” which has its own history of evolving out of an era of an ambiguous and chaotic understanding of law. Its history can be traced back to 1951 where the 1st Constitutional amendment was challenged in Shankari Prasad v. Union of India[5]where the Supreme Court ruled unanimously in favour of the Amendment act and held that the Parliament had the power to amend any part of the constitution alongside holding that Article 13 includes only ordinary laws and not constitutional amendments which come under Article 368, hence making it amenable for the parliament to amend the constitution, including the Fundamental Rights under Article 368.A conflict emerged between the Judiciary and Parliament in the decade of 1960s and 1970s which began with 17th Constitutional Amendment Act coming into force in 1964 which put some state laws under Schedule IX so as to refrain the Judiciary from reviewing them. This subsequently was challenged in I.C. Golaknathv. State of Punjab[6]case. The Supreme Court held that Fundamental Rights are immutable and transcendental and therefore, they cannot be abridged. It further ruled that Article 13 includes ordinary laws as well as Constitutional Amendment Acts. Feeling their supremacy getting threatened by the Judiciary, in a bid to assert their power in the democracy, the legislature came up with the 24th Amendment Act, 1971 where Article 13 and 368 were amended. It stated that the parliament is competent to amend and abrogate any Fundamental Rights under Article 368 and such a law will not be law under the meaning of law given in Article 13, giving a blow to democracy. Amidst this constant conflict between the Judiciary and the Parliament, a very significant development of Constitution took place in Kesavananda Bharati v. State of Kerela[7], i.e., the introduction of the doctrine of basic structure. The Supreme Court held that the constituent power of the Parliament under Article 368 does not enable it to alter the basic structure of the constitution and that the Parliament cannot abrogate or take away the Fundamental Rights which make the basic structure of the constitution.

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Further in Indira Nehru Gandhi v. Raj Narain[8] the Supreme Court reaffirmed the doctrine of basic feature by invalidating the 39th Amendment Act, 1975 which kept the election disputes involving the Prime Minister and the speaker of LokSabha outside the jurisdiction of the Court. Supreme Court held that this provision is outside the amending power of the Parliament as it altered the basic structure of the constitution. The Parliament, once again, took to an Amendment Act to showcase its power to the Judiciary, the 42nd Amendment Act 1976, and it declared that there were no limitations or restrictions on the constituent power of the Parliament and that no amendment could be challenged in any court on any grounds, including that of the breach of Fundamental Rights. However, in this long going tussle between the Judiciary and the Parliament, the final blow was served by the Indian Judiciary in Minerva Mill v. Union of India[9] when it invalidated the 42nd Amendment Act on the ground that it excluded the act of Judicial Review which makes the basic structure of the Constitution.

All these subsequent developments against the tyranny of the legislature were made possible by the Judiciary to take place with the sole motive of maintaining the sacrosanctity of Democracy as Democracy is considered to be the only social institution that strives to protect the liberty of an individual and where reason thrives on a very wide scale.

It has been rightly said by Justice HR Khanna that “All the devices of political machinery — parties, platforms and votes — are merely instruments for enabling men to live together under conditions that bring forth the maximum gifts of each for the fullest enjoyment of all. Democracy furnishes the political framework within which reason can thrive most generously and imaginatively on the widest scale, least hampered by the accident of personal antecedents and most regardful of the intrinsic qualities of men.”[10]

Democracy thus is considered to be the only form of government that ensures the well- being of its citizens by giving them rights and ensuring that their liberty is never infringed. The constitution of India which was adopted on 24th November 1949 by the constituent assembly declared India as a democratic republic thereby ensuring that the rights traditions and ideas of Indians will always be protected and respected. The constitution for this purpose has Articles 14, 19 and 21, which are considered to be the golden triangle of the Indian Constitution which strive to give Indians rights and protect them from the unjust interference by the state also putting them at par with the law. The beauty of democracy as opposed to other forms of government lies in the fact that in democracy people have the power to dissent. They have the right to think and act differently than that of the state opinion and the state duly respects such opinion. The absence of suppression of dissent is what sets out a democratic set up. It secures the liberty of an individual. Liberty stands for the demolition of fear, because where there is fear there cannot be freedom. Liberty and freedom are to be exercised keeping in mind and views the freedom and rights of other individuals living in the same democratic set up and only then can chaos and tyranny be prevented. And thus rule of law is fundamental. The rule of law ensures that the liberty and powers of the elected some do not infringe and subjugate the rights and liberty of the one who elects.  Law with its courts ensures that there is no chaos or tyranny. Democracy thus very aptly and in a befitting manner upholds the Supremacy of Law. Injustice is rampant in societies which lack democratic norms and ideologies. Man’s capacity for justice, it has been said, makes democracy possible, but man’s inclination to injustice makes democracy necessary.[11]

There is thus a close nexus between Liberty Democracy and Rule of Law. Each of them are very fundamental to the existence of the other and the dysfunction or the non-function of any one would lead to the demise of the other two.

But then there are harsh realities in the Indian Society which exist and we need to consider these as they bring out how democracy and rule of law fail to go hand in hand and thus can be called foes of each other.

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Having free and fair elections is the most fundamental criteria for democracy to function properly and achieve its goals. But the grim reality stands untouched that even till today the cases where muscle power and “goondas” or goons are recruited by candidates to gain votes by force and win elections are rampant. People are bribed by alcohol and money alike, and the goon work diligently threatening people and making them vote in their favour. Intellectuals and media houses may decry this practice but the harsh reality stands that this malady is very much ingrained in our political set up, also apparent from the instances of violence in many constituencies during the recently held elections. The consequence of this is that there comes to existence a close relation and connection between the politicians and these anti-social elements. And when these goondas are in conflict with the law and the police authorities try to corner them for their illegal acts, it is these politicians who come to their rescue because they are indebted to these goons for the service rendered by them during election time, something similar to what we know quid pro to be. And this mutual understanding results in injustice being meted out to the common public.

­­­­­­­A new trend which Indian politics has witnessed is the entry of these goons into politics as election candidates themselves. This was due to their realization that since they are so capable of rigging and capturing elections and votes, why not uses this trait in ensuring their own victory as candidates in the elections. Recently in a reply to the Supreme Court’s query the Centre has told the court that a staggering 36% of MP’s and MLA’s of India are facing trail in 3,045 criminal cases. This criminalization of politics is very saddening from the perspective of the nexus of democracy and rule of law, as the ideologies and goals of both these institutions are blatantly murdered.

The plight of the policemen can be understood in dealing with such politicians and cases as the whole corrupt system renders them helpless. And once such a person gets elected into the legislature, the election secures for him and his goons a virtual immunity against the proceedings of criminal law. And sadly every time, ways are found to by-step and dodge the law. Indian political scenario has been rife with such maladies from a long time now.

This state of affairs has garnered in a public impression that it is impossible to gain justice in criminal cases related to a member of the legislature and has thus resulted in a situation of chaos and mistrust of the people on democracy and on the rule of law. Efforts have to be made thus to stop such interference of legislature into the administration of criminal justice, failing which the rule of law will have to suffer severely.

We are thus today faced with a strange situation that while on the ideological basis democracy strengthens the rule of law, in actual practice our electoral process which is the precursor to a healthy democracy undermines the rule of law. It has to be the effort of all well-meaning persons to ensure that the kinship between Rule of law and Democracy is not weakened and that each of them continues to lend strength to the other.

As students of law and practicing lawyers and as a part of the legal fraternity of India we need to strive to create a culture of transparency and accountability to the laws and make governments more accountable to us as we are to them. Thus the rule of law and democracy are very fundamental to each other. And achieving justness together must be the common goal.


[1] Student, National Law University And Judicial Academy, Assam.

[2] Student, National Law University And Judicial Academy, Assam.

[3] Shankari Prasad v. The Union of India, AIR 1951, SC 458.

[4] Minerva mills case, AIR 1980 SC 1789.

[5] Shankari Prasad v. Union of India, A.I.R. 1951 S.C. 458.

[6] I.C. Golaknathv. State of Punjab, 1967 AIR 1643.

[7] KesavanandaBharati v. State of Kerela, (1973) 4 SCC 225.

[8] Indira Nehru Gandhi v. Raj Narain, 1975 A.I.R. 865.

[9] Minerva Mill v. Union of India, AIR 1980 SC 1789.

[10] Justice H.R. Khanna, (1990) 1 SCC (JOUR) 7.

[11] Justice H.R. Khanna, (1990) 1 SCC (JOUR) 7.