The people of world over before the present democratic system have passed their black days with the experience of various worst form of Governments viz. monarchy, anarchy, oligarchy, dictatorship and autocracy, etc., where the people had no say in the administrative system rather than experiencing with cruelty, torture, degrading, maladministration and bitter economy. Then such intolerable experience showed the path to enter into democracy after so many struggles, freedom wars, untold sufferings and constitutional and humanitarian philosophy which is in the words of Abraham Lincoln “Democracy is of the people, by the people and for the people”. Till the date, it is the last resort of administrative system where the actual power vests in the people of the country. This system would not be followed without the book of Montesquieu, the French political and social philosopher i.e. “The Spirit of Laws” in 1748 describing the theory of separation of powers i.e. executive, legislature and judiciary are three organs separate from each other so that no one can usurp the complete power. The separation of powers was first time established in US Constitution in 1787 by George Washington, the first President of United America. India after facing many foreign attacks, wars, conquers and rules specifically after winning its independence struggle in 1947 followed the democratic form of governance.
Even if before the framing of Constitution the members of our Constituent Assembly had been elected from the provincial constituencies in democratic form and they made free India as a largest democracy with the first five words in capital letter in the noble Preamble “WE THE PEOPLE OF INDIA” and ending with the five words “WE GIVE OURSELVES THIS CONSTITUTION” which indicates India is of representative Government and the actual power vests in the people of India.
It means the countries have divided their contemporary system of administration between three organs for check and balances of each other. But these three functionaries are interrelated and interdependent so that the liberty of the people can be protected. Here liberty does not mean freedom only.
The power and authority of the Government can only derive from the will of the people in lieu of free, fair and genuine elections which is held at intervals, which is based on secret ballot and adult suffrage and India’s two Representation of the People Acts, 1950 and 1951 follow the words of the international convention and promises to which India is a signatory. Article 21(1) of UNDHR [1] spells that everyone has the right to take part in the Government of his country, directly or through freely chosen representatives and for genuine elections.
The free and fair election is possible only if the people or body of people who wheel the power exercise their functions in an impartial way. But sometimes there comes a lacunae in the forefront to impediment something otherwise.
The Election Commission of India has a plenary power to supervise and conduct the free and fair elections [2]. But the Commission has to act in conformity with the law made by Parliament and it cannot transgress the same. Emphasising on the importance of free and fair election in a democratic polity, reference was made by the Supreme Court in Mohinder Singh Gill v. Chief Election Commr.[3], wherein it was ruled that:
23. Democracy is Government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions…. It needs little argument to hold that the heart of the parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.
We the people of India have our own Constitution specifically Articles 102 and 191 and Representation of the People Act, 1951, Section 7(b) read with Sections 8 to 10-A prescribing disqualifications of errant candidates from contesting elections but such current legislative framework permits criminals to enter the electoral arena and become legislators which interferes with the purity and integrity of the electoral process, violates the right to choose freely the candidate of the voter’s choice thereby violating the freedom of expression of a voter and amounts to a subversion of democracy which is a part of the basic structure and is, thus antithetic to the rule of law.
There is a vacuum which necessitates the interference to the judiciary. But the courts are not empowered under Article 142 of the Constitution of India to add the words to a statute or any enactments or read words into it which are not there and even if such article does not confer the power upon the court to make law [4]. The courts have only power in lieu of Article 32 of the Constitution only in areas left unoccupied by the legislation [5].
Hence as the power of judiciary is tied up, the corrupt political leaders find the place for their entry into politics on the ground that the “pure law” in the nature of constitutional provisions and the provisions of the enactments cannot be substituted or replaced by the Judge-made law [6] and it will violate the doctrine of separation of powers. They are also protected by the principle that “the presumptions of innocence until proven guilty is one of the hallmarks of Indian democracy and the said presumption attaches to every person who has been charged of any offence and it continues until the person has been convicted after a full-fledged trial where evidence is led. Penal consequences cannot ensure merely on basis of charge”. They also get privilege from the Constitution of India that “every citizen has a right under Article 19(1)(c) to form associations which includes the right to be associated with persons who are otherwise qualified to be member of Parliament under the Constitution of India and under the law made by Parliament. And this right can only be restricted by law made by Parliament and any direction issued by the Election Commission under Article 324 is not law for the purpose of Article 19(1)(c)”. Such principle follows rulings in a case [7] “that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all”. Further, an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way [8].
In Resurgence India v. Election Commission of India [9], the Supreme Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament and such right to get information is universally recognised natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter’s speech or expression in case of election would include, that is to say, voter speaks out or expresses by casting vote. For this purpose information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognised that the citizen’s right to know of the candidate who represents him in Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at very outset ultra vires. Again the candidate who has filed an affidavit with false information as well candidate who has filed an affidavit with particulars left blank should be treated on a par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution viz. “right to know”, which is inclusive of freedom of speech and expression.
In India, whether it be parliamentary elections and State elections crores of rupees are spent in conducting elections and election campaigns by various political parties. Such money are of and are from the pockets of general public. The actual figure to express is impossible because India and its people are not prepared for this menace.
Even it is not duty of Comptroller and Auditor General of India to examine expenditures even before they are deployed but can exercise effective control over government accounts and expenditures on these schemes only after the implementation of the same [10]. In 2014 election $5 billion, in 2009 election $83 billion were spent by political parties. But wherefrom they brought such money. The hourly cost of aircrafts and planes ranges between $1250 to $3000. 5 aircrafts for 15 days at an average cost of $1500 per hour for 8 hours a day amounting to $900,000 for election campaigns. It was from whose pocket.
Even the Supreme Court held in Common Cause (A Registered Society) v. Union of India [11], held that any expenditure incurred or authorised by a political party in respect of general propaganda or for the propagation of its election manifesto shall not be considered as an expenditure to be incurred in connection with the election of candidates belonging to said party. Then where there is the way for the people to ask questions on this issue.
The electorates during their election campaigns declare to do many things in the name of developments, and contributions. But no one charges if they do not fulfill their promises. No one even if asks against the promises made by them that from where they will bring the resources and within how many days the promises will be converted into action. The promises made by the political parties as was held in S. Subramaniam Balaji case [12] in election manifesto to give, TVs, laptops, grinders, cattles, etc. to voters do not constitute corrupt practice within the meaning of the provisions under Section 123 of the Representation of the People Act, 1951. As was held in S.R. Bommai v. Union of India [13], the manifesto of political party is to be consistent with the basic features of Constitution and they must maintain neutrality towards religious beliefs and prohibit practice derogatory to the Constitution.
As was held in a case [14] that the nexus between politicians, bureaucrats and criminal elements in our society has been on the rise that adverse effects which are increasing are being felt on various aspects of social life in our country.
As was held in another case [15] the law-making wing of the democracy of this country will take it upon itself to cure the malignancy but such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy.
In Kuldip Nayar v. Union of India [16], the Supreme Court has observed that the Election Commission of India, which under the Constitution has been given the plenary power to supervise the elections freely and fairly but subject to the provisions of parliamentary laws.
In A.C. Jose v. Sivan Pillai [17], the Supreme Court held that:
7. … It is true that Article 324 does authorise the Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections to Parliament and State Legislatures but then the article has to be read harmoniously with the articles that follow and the power that are given to the legislatures under Entry 72 in the Union List and Entry 37 of the State List of the Seventh Schedule to the Constitution. The Commission in the garb of passing orders for regulating the conduct of elections cannot take upon itself a purely legislative activity which has been reserved under the scheme of the Constitution only to Parliament and the State Legislatures.
In India, our leaders give many promises but the citizen-voters focus on vital issues and focus on the leaders during the time of the election campaigns but forget for next five years. Nothing is left in their hands during this time. Some of the voters repent about it and some other do not bother. They create vote banks in the name of developments, religion and minority issues, then create chaos, murders, conflicts, etc., during or before or even after elections. This type of cosmos curse links practice in present scenario waiting for a new change in the system.
In this respect, no one can forget the system of democratic form of governance in Switzerland. It is only country in the world where the voters are not left behind for further five years. Their opinion is received by the chosen Government from time to time even if after fifteen days of oath taking in respect of issue of national importance. Even if on 25-11-2018 Switzerland is only country where eighty five lakh voters casted their votes for their opinion whether the cow horns would be burnt or cut or not. In this country, the horns of leaving cows are burnt or cut on the plea that they attack men and animals.
India should learn the political lessons from this country where the rights of animals are protected through elections and opinion of voters and the voters are not neglected from governance up to next five years.
Moreover, as our system says it is beyond the power of poor Indians to think about the wrong or right pose of democracy. It is also beyond the power of literate Indians to think about the right pose because they have no time and nothing creates problem to them. And the rest feel but no one listens to their feeling voice.
We have Supreme Court and Election Commission’s guidelines, we have Supreme Court rulings, we have Representation of the People Acts, 1950 and 1951, we have Constitution of India, etc., but the election system is stultified from period to period and the people are made foolish and suffer both politically and economically. Hence it is the time to think “what next to democracy” or “where to stay in present democratic governance”.
† Advocate, e-mail: mrinalinipadhi@yahoo.com
[1]Universal Declaration of Human Rights, 1948 vide United Nations General Assembly Resolutions 217A(III) dated 10-12-1948.
[2] Public Interest Foundation v. Union of India, (2019) 3 SCC 224: AIR 2018 SC 4550.
[3] (1978) 1 SCC 405, 424 : AIR 1978 SC 851.
[4] Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323; Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409.
[5] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
[6] State of H.P. v. Satpal Saini, (2017) 11 SCC 42; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
[7] Nazir Ahmad v. King Emperor,1936 SCC OnLine PC 41: AIR 1936 PC 253 (2).
[8] Colquhoun v. Brooks, (1888) 21 QBD 52 (CA).
[10] S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659.
[11] (1996) 2 SCC 752 : AIR 1996 SC 3081.
[13] (1994) 3 SCC 1 : AIR 1994 SC 1918.
[14] Public Interest Foundation v. Union of India, (2019) 3 SCC 224: AIR 2018 SC 4550.
[15] Dinesh Trivedi v. Union of India, (1997) 4 SCC 306.
[17] (1984) 2 SCC 656, 662 : AIR 1984 SC 921.