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Democracy: Anywhere, Everywhere, Nowhere?

Democracy in India is seen by most from the point of independence from the rule of Britishers to when the people became rulers themselves. For some, it is direct self-government, over all the people, for all the people, by all the people (Abraham Lincoln's Gettysburg Address). But from a different perspective it is a representation of all the peoples (different communities) as the people (one community). John Locke in his Second Treatise of Government argues that everybody is free and equal, but if a body or organisation has been formed, it has the right to form decisions based on the will of the majority and others will have to follow that. A contrary view is seen in Pierre-Joseph Proudhon’s "General Idea of the Revolution in the 19th Century" where he argues that even if interests of a single faction or individual are undermined then it is not a true social contract. According to him, an individual has a right to annul that contract. Majoritarians may use the first argument and minorities the second. The same thing can be also seen from a third perspective so as to include the majority from each community and to try to incorporate the ideas of each stakeholder.

Charles-Louis de Secondat, Baron de La Brède et de Montesquieu in "The Spirit of the Laws" advocates the separation of powers and argues that the legislature and the executive should not only be separated from the judiciary but from each other as well. Because if executive power is given to some people from the legislature then those people will be able to possess both the powers at the same time. It may be true in some contexts (of the parliamentary system) such as the Unlawful Activities (Prevention) Act and the National Safety Act where the law is as always made by the legislature and implemented by the executive (chosen from legislature in parliamentary system in India) and the law is used to fulfill the politically motivated whims and to silence revolutionaries in the name of national security and nationalism, that is framing and then misusing the law.

These laws have been misused at various protests such as against the ones speaking against the Citizenship (Amendment) Act, 2019 (CAA), National Register of Citizens (NRC) et cetera. Some may use this stance or these examples to call the parliamentary system undemocratic and use this in favour of the presidential system over the parliamentary system. However, it must be remembered that this is his perspective and even if one may have both the powers at the same time, the system of checks and balances can be ensured as there will be other people in the legislature to ensure checks on the powers of the executive. Bhim Rao Ambedkar in the Constituent Assembly had also observed that the parliamentary system is much more responsible and accountable to people than any non-parliamentary system.

In some countries such as India where the constitution has been formed by the Constituent Assembly, there according to the basic structure doctrine the basic structure of the constitution may not be destroyed. This greatly reduces the powers of the parliament. It ensures that the government does not misuse its powers or encroach upon the rights of minorities. The Supreme Court of India in 1950s had ruled that parliament had unrestricted powers (thus may have been partly due to the fact that the country was in the hands of the freedom fighters) but this changed when The Supreme Court of India in the Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970) ruled that the basic structure of the Constitution of India cannot be amended. The High Court of Singapore (the lower division of the Supreme Court of Singapore) though in Teo Soh Lung v. Minister for Home Affairs ruled that the basic structure doctrine didn't applied to their constitution but they stated that it was due to the differences in the how the Indian constitution and their constitution was made. However, in countries which have uncodified constitutions such as the United Kingdom, the judiciary may not be able to strike down a law until it is in conflict with other laws.

In the United States as well which has a written constitution, the judiciary is only able to strike down laws which are in conflict with other existing laws. Winston Churchill once even remarked, "No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time." However, he forgets though every form of government has its own merits and demerits, democracy clearly outweighs the other forms in terms of merits and has far less number of demerits. One perspective which most people forget is to check whether each democracy is dictatorship or vice-versa. In a dictatorship, the dictator is only able to rule as people have not revolted, thereby shouldn't it be considered implicit consent? In a democracy, the government may sometimes make such laws which may not be supported by the majority of people. Hence, whether something is democratic or not depends on the standards it maintains and whether the rights of each stakeholder are delineated fairly and clearly as well.

Naman Singla
Writing Mentorship, 2021

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