Democracy and rule of law

Th Ibohal Singh *

Assembly building at Chingmeirong, Imphal in February 2013 :: Pix - Bullu Raj

The original concept, public perception and philosophy behind the term "Democracy" has been degraded because of the misuse, abuse and misinterpretation of the same to fulfil ulterior motives of the vested interests.

While India was under the British dominion, our leaders, and freedom fighters, after various fights, revolutionary activities, battles and relentless movements, sacrifices and bloodsheds of the people of India, endeavouring to achieve/restore a free India, centuries together, we became a free India. After much discussion and debates, our forefathers and the profounder laboured in drafting a Constitution in the form and style of federalism, a Union Government at the Centre and provincial governments (State Assemblies or Assemblies of the Union Territory).

Amidst the complicacies, pluralistic diversities, differences and confrontations, we ultimately adopted a Constitution of India on 24th November, 1949, opting federal form of government with the Preamble "Sovereign, Socialist, Secular, Democratic Republic".

Salmond, a well known jurist defined law as "the command of sovereign". The command of sovereign would mean the ones incorporated in the Constitution and laws made thereunder to regulate government and its instrumentality for protection of the rights, properties, and dignities of the citizens on one hand, and sovereignty and integrity of the nation on the other hand.

The command does not mean the arbitrary, whimsical and colourable exercise of the power by the people in the power contrary to law. Now the term "discretion" has been narrowed down and construed to exercise an option between two opinions which has been provided by law. No an unknown decision can be adopted.

In the recent pasts in our country it becomes phenomena that the attitudes and behaviours of the politicians and elected persons and the actions of political parties, their way of functioning organisations and the modes of campaigns dilute the concept and philosophy of democracy. We see and experience the news of muscle power, money power and worthless propagandas being publicised as the means and ways.

The committing of large scale false promises by the candidates and political parties are visible in their election rallies and manifestoes. The incurring huge amount of money in election is also the fact. After election, the practices of unnecessary and unreasonable horse trading has also increased year to year and term to term.

After formation of the government, both in Parliament and in the State Assemblies also, it has been demonstrated that the Houses are seen violating norms, practices, rules of procedures, making of unnecessary allegations, exaggerations, false, flimsy, frivolous and wrongful statements charging against each other. Rather many members are witnessed to speak derogatory and outrageous charges and statements against their political opponents.

The institution of the Speaker of the Assembly also demonstrated to be neglecting of it's Credibility and Paramountcy, by acting unbecoming of the presiding officer in the house and also conducting many matters as Presiding Officer of the Tribunal in deciding many matters including issues and questions under the 10th Schedule of the Constitution of India.

It has been seldom observed, during the sessions, about the maintenance of impartiality, transparency and fairness between the ruling group and the opposition. It appears large scale violation of Rule of Law and the principle of natural justice.

The arbitrary actions of favouritism and nepotism is also often seen, during the session, to have committed favouring the political party he belongs by taking unusual and hasty decisions. The incident happened on 10th August, 2020 while dealing with the subject matter of no confidence motion/confidence motion, with due respect, the following are opined;

(i) The recent happening created ripples to the circles of scholars, intellectuals, legal fraternities and politicians;
(ii) Left the Assembly with a fractured face and it's Credibility and Paramountcy being dented;
(iii) It did a jolt to the institution's image and prestige;
(iv) The recent assembly session appears to have failed to observe and follow the provisions of the Rule of Procedure and Conduct of Business.
(v) What is felt grappled is to the practice of failing to maintain the fairness, rationality and honesty in the procedure adopted.
(vi) Negated the ideology, "what a person, holding a highest and honourable position in the government, may be in whatever capacity, does or acts today should ensure that the system and procedure should remain intact" ;
(vii) Ignored the maxims ; (a) "Power without accountability is freedom of foolish", (b) "Liberty without responsibility is antithesis to constitutionalism" ;
(viii) Not seen keeping in mind "the observance of fairness and transparency are the foundations of the decision making process. Ignorance and apathy to the same degenerates the morality of the constitutional culture and the same is opposite to concept and philosophy of democracy and Rule of Law;
(ix) The concept namely, (a) Sentiment and sympathy alone cannot be ground for departing from law, (b) Law should be placed over emotion and sentiment seemed to be far away;
(x) To turn a blind eye and apathy to the above mentioned concepts, shall be a threat to disrupt the system and the Rule of Law.

Fairness of procedure:

The phrase "Fairness of Procedure" means and includes;
(i) In functioning of a public office or a government machinery or an institution, it is a mandatory to regulate the same under a publicly accepted system or method;
(ii) To regulate a system, there must be a prescribed procedure;
(iii) In carrying out public duties, public interest should be prioritised;
(iv) The pressures from the outside, sponsoring the individual interest based on favouritism and nepotism, or to take decision hastily should be avoided.

Transparency:

Public confidence is cherished if the government and it's instrumentality maintains the transparency and openness in dealing with governmental and public subjects. Once a system has been devised in an office or institution providing the facilities to the public for immediate information exposing the fairness, rationality and honesty, the same should be continued.

Otherwise, immediate lifting/closure of the system in dealing with a particular matter, wrong public perception would spread that the government or the public office is doing a secret, malafide, wrongful, illegal or unreasonable job, to the media, being antithesis to Article 19 of the Constitution.

Rule of Law:

The rule of law as propounded by eminent jurists has been adopted and incorporated in the Constitution of India. The preamble itself enunciates the ideals of justice, liberty and equality. In Chapter III of the Constitution these concepts are enshrined as fundamental rights and are made enforceable.

The Constitution is supreme and all the three organs of the government, viz. legislature, executive and judiciary are subordinate to and have to act in accordance with it. The principle of judicial review is embodied in the Constitution and the subjects can approach High Courts and the Supreme Court for the enforcement of fundamental rights guaranteed under the Constitution.

If the executive or the government abuses the power vested in it or if the action is malafide, the same can be quashed by the ordinary courts of law. All rules, regulations, ordinances, bye-laws, notifications, customs and usages are 'laws' within the meaning of Article 13 of the Constitution and if they are inconsistent or contrary to any of the provisions thereof, they can be declared as ultra vires by the Supreme Court and by High Courts.

The President is required to take oath to preserve, protect and defend the Constitution. No person shall be deprived of his life or personal liberty except according to procedure established by law or of his property save by authority of law. The executive and the legislative powers of the State and the Union have to be exercised in accordance with the provisions of the Constitution.

The government and the public officials are not above the law. The maxim 'The King can do no wrong' does not apply in India. There is equality before the law and equal protection of laws. The government and public authorities are also subject to the jurisdiction of ordinary courts of law and for similar wrongs are to be tried and penalised similarly.

They are not immune from ordinary legal process nor is any provision made regarding separate administrative courts and tribunals. In public service also the doctrine of equality is accepted. Suits for breach of contract and torts committed by the public authorities can be filed in ordinary law courts and damages can be recovered from the State government or the Union government for the acts of their employees. Thus, it appears that the doctrine of rule of law is embodied in the Constitution of India, and is treated as the basic structure of the Constitution.

Our Constitution in its preamble aspires to build a Sovereign, Socialist, Secular, Democratic, Republic dedicated to ideas of justice, liberty, equality and fraternity. With these ends in view, its provisions embody in express terms the power of judicial review in the courts of the land, a power which was recognised in the United States only after a long struggle.

The Constitution has further taken care to provide us with the bulwark of an integrated and irremovable judiciary so that our democracy may be assured of proper growth under the wings of a watchful and vigilant group of judges.

Maintenance of Fairness:

The Hon'ble Supreme Court, in catena of decisions held;

(i) Every action of the state or it's instrumentality should be fair, legitimate and above board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparent of given an impression of bias, favouritism and nepotism. Anything done in undue haste, can also be termed as arbitrary and cannot be condoned in law.

(ii) In essence, the action/order of the state or it's instrumentality would stand vitiated if lacks bonafide as it would only be colourable exercise of power. The Rule of law will only be the foundation of democratic society.

(iii) The decision should be made by the application of known principles and rules in general such decision should be predictable and citizens should know where he is, but if a decision is taken without any principle or without any rule, it is unpredictable and such decision is the antithesis to the decision taken in accordance with the rule of law