The system of representative democracy and Constitutional principles have not sorted out the contradictions inherent in supreme power residing in the hands of an elite minority than in the hands of people.
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In a recent lecture, Chief Justice of India N.V. Ramana said there is a growing tendency to disregard and even disrespect the Court orders by the executive which is supposed to assist and co-operate. He made this comment while delivering the Lavu Venkateswarlu 5th Endowment Lecture on ‘Indian Judiciary-Future Challenges’.
Highlighting the challenges before the judiciary, the Chief Justice of India said a ‘non-cooperative executive’ is one of the concerns. He said ‘Courts do not have the power of the purse or the sword… there appears to be a growing tendency to disregard, and even disrespect court orders by the executive’.
The CJI has highlighted the oft-repeated feature of modern Indian democracy that the Constitution has created three co-equal organs, namely the legislature, the executive and the judiciary in order to ensure that sovereignty is not usurped by any one organ. He has also queried whether the judiciary has the role of reviewing the legality of steps taken by the other two organs.
This raises two issues: the first, whether sovereignty should be shared equally between the three organs of the state, often called the ‘three pillars of democracy’; the second, whether sovereignty should lie at all in the hands of these organs of the state.
The prevailing political process in our country includes all those institutions, mechanisms, rules, regulations and structures through which political power is exercised. It indicates where sovereign power is vested. It also determines who constitutes the government and for how long.
The Westminster Model, the British parliamentary system which opened path for progress in the past and as emulated in different forms throughout the modern world, including India, actually constitutes a brake on progress at this time. Ipso facto, it favours the concentration of power in the executive and deprives the people of any say in governance. For all intents and purposes, it is the executive which is sovereign in the prevailing political process. There is no mechanism for people to exercise control over their lives.
The well-known political commentator, Paul Hirst, said in his book titled ‘Representative Democracy and its Limits’ that ‘The ‘sovereign power’ of the people’s representatives gathered in the legislature has been placed at the service of the executive through enabling legislation’.
In the present political process, people themselves are not the decision-makers in the country. Their role is only to cast their vote on election day and elect one or the other party of the ruling establishment to power. Once a party is elected to power, it appoints a Council of Ministers and forms the government. Thereafter, it is the President and the Council of Ministers who wield real decision-making power. They draft laws and decide on major policies. They manage the government on behalf of the ruling elite, who constitute just a fraction of the population. The Parliament and Judiciary remain accountable only to the Executive and not to the people. They can make a lot of critical noises about the actions of government but in the final analysis they are bound by the dictates of the government.
Taking the first issue: whether sovereignty should be shared equally between the organs of the state, the Indian Constitution says ‘No’. It clearly entrusts sovereignty in the hands of the executive who in turn serve the elite sections of Indian society.
The CJI has said that ‘It is a well-known fact that a popular majority is not a defence for arbitrary actions taken by a Government. Every action is mandatorily required to comply with the Constitution. If the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable’. But the real fact is that once a political party or an alliance gets a majority in elections and forms a government, then its arbitrary actions cannot be prevented. The legislature and the judiciary, even if they had wished to, could not have prevented the arbitrary actions of the government such as demonetisation, arrest and incarceration of innocent people using the anti-terrorist laws, enactment of anti-people bills such as the Farm Acts and the Labour Code Act.
Taking the second issue: ‘where should sovereignty lie?’, the expectations of people living in a modern society is that it should lie in the hands of the vast majority of the people. But to this day Indians do not have the right to amend the Constitution to this effect. They have no say in deciding where the sovereign power should be vested. Clearly this is because they are themselves not the supreme decision-makers. There are no enabling mechanisms in the Constitution to make this possible.
What we see in India is that, in the absence of vesting sovereignty in the hands of people, the government and political parties of the establishment have further consolidated their positions of privilege and power.
James I, who ruled England in the early part of the 17th century, was an advocate of royal absolutism and questioned why he should be answerable to Parliament. He declared that ‘It is presumption and high contempt in a subject to dispute what a king can do, or say that a king cannot do this or that’. This is exactly the way today’s government behaves. The system of representative democracy and periodic elections have made no difference to this absolutist notion that people should be deprived of political power.
In the final analysis, the present problem of powerlessness in the people cannot be solved by distributing powers equally between the three organs of the state—the executive, judiciary and legislature. The people are only too aware of this. After electing their representatives to Parliament, the electors hardly see them. Elected representatives remain unaccountable and unreachable to the people. They work for those who funded them, not those who elected them. As far as the judiciary is concerned, litigants are only painfully aware of the way the courts treat them as criminals until they prove themselves to be innocent. The very act of getting arrested under the anti-terrorist laws is itself a punishment, the victim having to spend years in jail and enormous money to defend themselves against charges.
The system of representative democracy and Constitutional principles have not sorted out the contradictions inherent in supreme power residing in the hands of an elite minority than in the hands of people. The Westminster system of representative democracy, which the leaders of free India adopted, is nothing better than the absolutist system that James I demanded. The existence of multiple parties and the conduct of periodic elections have not resolved the question of where decision-making power should lie. On the contrary, they have only further mystified the question of who really wields power in modern India.
The issue, as we can see it, is not the readjustment of the sharing of powers among the organs of the state but in vesting sovereignty in the hands of people. Mechanisms have to be created using which the elector can exercise power and subordinate the elected to it. Only such mechanisms can help retain the final say in running the affairs of the country in their own hands.