Authored By: Maitreyi Chaturvedi
Symbiosis Law School Pune
I Introduction
Ask most people what democracy means, and the response is likely to touch on elections people vote, representatives are elected, and a government forms But voting is only a part of democracy democracy also requires that citizens be free to express themselves, that they possess rights that are more than theoretical, and that they possess the ability to question the government without retribution
The framers of the Indian Constitution were aware of the risks posed by the concentration of power in one place, but it has to be exercised with caution Government clearly requires some degree of authority to operate, but it was not meant to be concentrated Fundamental Rights, the courts, Parliament, and several constitutional agencies were each charged with a particular responsibility in checking one another
These methods of checking have not always worked, however, and the Emergency of 1975 to 1977 is the most prominent example of a government acquiring extensive powers, and curtailing civil liberties to a degree that surprised even the most astute observers of Indian politics[1] This is a vital lesson no matter how welldocumented the safeguards may appear on paper, they do not enforce themselves
This article argues that while Indias constitutional protections are considerable on paper, they are only as strong as the institutions tasked with enforcing them that the Emergency provides a vital warning about what can happen when those safeguards are neglected and that the discussion below sets out the constitutional protections in place for democracy, works through the case law that has provided those protections with substance, and finally examines where those safeguarding mechanisms have held up and where they have not
II Legal Framework
Indias constitutional design separates power rather than concentrating it in one body Parliament makes laws, the executive enforces them, and the judiciary interprets them This separation of powers is not absolute few constitutional systems manage to achieve the complete separation of powers but each is, to some degree, checked by the other two
The Preamble describes India as a democratic republic[2] It is easy to skim past this, but it is worth pausing on Democracy is not an external factor that the Constitution merely gestures towards, but rather, it is woven into the foundations
None of this matters if it exists only on paper a government that is free to wield its power as it sees fit will inevitably do so It is presumably for this reason that the Constitution both grants citizens certain rights, and grants courts the power to review government conduct If it did not, a government holding a comfortable majority would have little difficulty consolidating power beyond the limits the system permitted
Among the strongest of these protections are the Fundamental Rights Article 14 provides for equality before the law[3] Article 19 provides for several civil liberties, including speech and expression[4] and Article 21 protects life and personal liberty[5] A citizen who is afraid to speak, or whose liberty can be suspended without cause, is not participating in democracy to any real degree, and the rights on the page must translate to something tangible
Judicial review provides a further protection, and possibly the most direct Pursuant to Article 32, a person may seek recourse directly from the Supreme Court to enforce a Fundamental Right,[6] and Article 226 grants similar authority to the High Courts[7] Thus, a citizen who faces an overreaching government is not, at least theoretically, without recourse
A related but separate safeguard is the basic structure doctrine Parliament is empowered to amend the Constitution, but not to the extent to destroy its basic structure The reasoning is fairly simple a Parliament who holds a large majority at a given time can otherwise rewrite the Constitution in ways no future Parliament can undo Democracy, the rule of law, judicial review, and separation of powers have each been recognized by the Supreme Court as part of that basic structure No Parliament, not even one that has been legitimately elected, can amend it out of existence
III Case Law Analysis
The clearest statement on personal liberty comes out of Maneka Gandhi v Union of India[8], a case which started with something fairly mundane the government impounding Maneka Gandhis passport but ended up amending Article 21 considerably The Court held that any procedure touching personal liberty must be fair and reasonable, and not simply whatever procedure the executive has chosen That distinction was crucial the government could no longer point to a procedure, however capricious, and claim Article 21 had been satisfied merely because a procedure existed The procedure now had to pass a constitutional hurdle on its own, which gave the right real strength against an overreaching government
The basic structure doctrine traces back to Kesavananda Bharati v State of Kerala[9], where a closely divided Supreme Court held that Parliaments amending power, albeit wide, does not extend to destroying the Constitutions basic structure Indira Nehru Gandhi v Raj Narain[10] followed shortly thereafter, and was due to an election dispute it confirmed that even matters that pertain to the democratic process are not exempt from constitutional scrutiny Taken together, the two decisions suggest that while the basic structure doctrine does not prevent amendments, it does prevent amendments so sweeping that the Constitution ceases to be readily recognizable
Then there is ADM Jabalpur v Shivkant Shukla[11], which was decided during the Emergency, and by most accounts is one of the lowest points in Indian constitutional history The majority held that the right to approach a court for enforcement of certain Fundamental Rights was suspended for the duration of the Emergency later, the Supreme Court would repudiate this decision[12] What the case demonstrates, above all, is that the rights written into a constitutional text are only as durable as the institutions that enforce them An independent judiciary, a Parliament prepared to question the executive, and authorities that hold themselves in check, cannot be taken for granted they have to be nurtured, and at considerable cost
Read together, Kesavananda Bharati and Maneka Gandhi demonstrate the willingness of the Supreme Court to place limits on government power ADM Jabalpur shows what happens once that willingness has been eroded None of this suggests that the courts should govern in the place of Parliament elected governments do have a responsibility to make policy decisions But it does demonstrate that the judiciarys role in preventing government action that exceeds constitutional boundaries is not a minor or technical one
IV Critical Evaluation
Democracies rarely collapse overnight It tends to be a process a stepbystep erosion of checks and balances a gradual restriction of freedoms a silent acquisition of powers by the executive Until, almost without warning, the system has been considerably altered This is why elections cannot, on their own, decide whether a country remains democratic Regular elections can happily exist with a shrinking space for dissent, so long as people are hesitant to speak freely, and so long as government decisions do not undergo any real challenge
Indias constitutional framework for protecting democracy is a relatively strong one But it would still be a mistake to assume that the existence of this framework is sufficient The basic structure doctrine does not come into play until an amendment is actually challenged Judicial review only works where courts maintain their independence Fundamental Rights only matter if they are honored in practice, and not just on paper The Emergency remains the most prominent example of all these safeguards each existing on paper, yet unable to prevent severe erosion of liberties for a period of time
Responsibility for safeguarding democracy cannot fall solely upon the judiciary Parliament has its own responsibility to hold the executive accountable, and citizens have a responsibility too A public that is unaware of its rights, or that is unwilling to question the misuse of power, leaves legal safeguards doing far more work than they were ever designed to do on their own Democracy is protected collectively, or not protected particularly well
A few steps would help Constitutionally mandated institutions need genuine independence an institution beholden to the government it is meant to check cannot check very much Parliament ought to examine executive action more consistently, and hold government accountable for its choices Fundamental Rights should continue to receive robust protection, with any restriction tested rigorously against constitutional standards rather than waved through Judicial review should remain accessible whenever rights are genuinely at stake, though courts should be aware of the line between reviewing a government decision and simply substituting their own for it And citizens need to have at least a working knowledge of what the Constitution promises them Democracy tends to function better when the knowledge of what government can do is known and worse when it is not
V Conclusion
Authoritarianism rarely announces itself It tends to come gradually, as power is concentrated in fewer hands, and the institutions which resist it lose the ability to do so
Indias Constitution provides several defences against such an advance Fundamental Rights which check arbitrary state action, a separation of powers which resists total concentration, judicial review which allows unconstitutional conduct to be tested in court, and a basic structure doctrine that caps how far Parliament may amend the document
The Emergency of 1975 is a useful, if uncomfortable, reminder of why these defences are necessary It is a demonstration that even an established democracy may pass through a period in which liberty and institutional independence are at risk But the Constitution cannot do this alone the courts, Parliament, constitutional institutions, and citizens each bear a share of the responsibility
Democracy is not exhausted by the act of choosing a government it also requires that the government, once chosen, remain accountable to law and respectful of the people it governs The Constitution grants power, but with limitations and how seriously those limits are taken, in the end, determines how secure Indian democracy really is
Reference(S):
Table of Cases
ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207
Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299
Justice K S Puttaswamy v Union of India 2017 10 SCC 1
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
Maneka Gandhi v Union of India AIR 1978 SC 597
Table of Legislation
The Constitution of India 1950
[1]The Constitution of India 1950, art 352 as invoked by Proclamation of Emergency, 25 June 1975
[2]The Constitution of India 1950, Preamble
[3]The Constitution of India 1950, art 14
[4]The Constitution of India 1950, art 19
[5]The Constitution of India 1950, art 21
[6]The Constitution of India 1950, art 32
[7]The Constitution of India 1950, art 226
[8]Maneka Gandhi v Union of India AIR 1978 SC 597
[9]Kesavananda Bharati v State of Kerala AIR 1973 SC 1461
[10]Indira Nehru Gandhi v Raj Narain AIR 1975 SC 2299
[11]ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207
[12]Justice K S Puttaswamy v Union of India 2017 10 SCC 1, disapproving the majority reasoning in ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207
