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Published : September 08, 2010 | Author : drpremnath
Category : Constitutional Law | Total Views : 4378 | Rating :

Dr Prem Nath Associate Professor Deptt. of Laws Panjab University Chandigarh

Law And Democracy

Democracy is a process, not a static condition. It is becoming rather than being. It can easily be lost but never is fully won. Its essence is eternal struggle”.[2]

“Democracy is a dynamic, not a constant, a mean not an absolute, its condition is freedom and its aim is truth”.[3]

The evolution of the individual as the ultimate measure of things is a universally accepted standard of democratic society. The development of the individual to its complete potentialities is an old idea appearing in various philosophical systems. But the conception of a society based on well-defined rights of the individual is a special idea of democracy. In philosophical systems the emphasis is on duty and not on right, but in a democratic society, special stress is laid on right and not on duty. Democracy has not accepted the “right to do one’s duty’ as the only right. The trend of the modern democracy is extending the sphere of individual rights beyond the original trinity of life, liberty and property. It is increasingly tempering individual rights by social rights. The French convention stipulates common happiness is the end of the society. Whereas Bentham postulates the greatest happiness and the greatest number as the end of law. For getting a clear idea regarding the trend of modern democracy the specific individual rights which are sure to constitute the legal pillars of democracy, may, in short, be averted to.[4]

This sole transformation democrats the judicial institution – both process and personnel – and banishes the cult of the court as imperium in imperio. Judge Jerome Frank aptly sumps up for this country what obviously applies to India

“The robe as a symbol is not of date, an anachronistic remnant of ceremonial government …. A judge who is part of a legal system serving present needs should not be clothed in the quaint garment of the distant past. Just as the role conceals physical contours of the man, so it necessarily conceals from the public his mental contours. When the human elements in the judging process are covered up, justice operates daringly. Now that the Supreme Court has declared the judiciary a part of candid democratic government, I think, that the cult of the robe should be discarded”.

There has to be a paradigm shift if the march from despair to hope to takes place a new way of thinking about old problems, a shift of the judicial center of gravity from the affluent to the indigent which, in truth is the fulfillment of the Constitution. Statesmen of the law must surely dynamism the forensic methodology with creative intelligence and consciousness of social dimensions, and democratise its institutional accountability so as to ensure the third world mendicates for justice, in their millions, meaningful remedial alms.

True economic transformation is the primary function of the executive and legislature. But where justice is the end product and its content has socio-economic components, the Constitution which is the nidus of all power, command, the judges to catalyze and control, monitor mandate by courts’ orders and directions – vide Art. 32 and Art. 226 – so that they may bear true faith and allegiance to the Constitution and say, ‘this shall be done’.

Public Interest Litigation (PIL) is the product of creative judicial engineering. The first obstacle to the people-oriented project. PIL is the blinkered adversary proxies. Friedman was right when he said: “It would be trait if the law were so petrified as to be unable to respond to the unending challenges of evolutionary or revolutionary changes in society”. Lord Scarman likewise hit the nail on the head in his Hamlin lecturers: “I shall endeavour to show that there are in the contemporary world challenges, social, political and economic, which, if the system cannot meet them, they will destroy it. These challenges are not created by lawyers; they certainly cannot be suppressed by lawyers; they have to be met either by discarding or by adjusting the legal system, which is to be?” Legal justice must not operate in a sound-proof, light-proof court room with obsolete chants, mystiques and techniques but discern the social changes and re-design its delivery system, so as to accelerate people’s access to effective litigative justice. The tension between heritage and heresay will, if neglected for long tear down the tower of justice. In truth, the law lags behind contemporary advances. When we deny this gap, the law becomes “the Government of the living by dead”. The ‘ayatollahs’ of the law are negative navigators of the old order. Commonwealth Secretary General, Ramphal once observed:

“The law has a greater, more positive exciting role in discerning change and legitimizing progress. It is a role played consistently over the ages as the law fulfilled its noblest purpose with covenmate discern in such areas as human bondage, the right of dissent, desegregation and women’s rights. There will assuredly be other roles ahead for which you will need wisdom, perception and courage – but most of all a vision of change and sensitivity to its arrival. Only thus will you secure your validity and fulfill your deep duty in our changing world. A popular government, without popular informations or the means of acquiring it, is but prologue to a farce or a tragedy; or perhaps both. Knowledge will farevergovetry ignorance; and a people who means to be their own government arm themselves with the power which knowledge gives.”[5]

Dr. Ambedkar in his final address in the Constituent Assembly on 25.11.1949 argued:
“We must make our political democracy a social democracy as well as political democracy cannot last unless there lies at the base of it social democracy. What does social democracy means? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat its very purpose of democracy”.

Can the law breaking, at all, be a process of law making or revolt, technique of reform? How can martyrdom have mutative potential when its method is infliction of may them on the establishment? The answer is straight forward, thought abstruse-sounding. Every democracy which legislates with the backing of the majority is bound to recognize the voice of the minority, the still small voice, may be. Therefore, in the technology of power politics and democratic processes, dynamic dissent by a group – even one-man minority… has a seminal role.

It is basic to our democracy that power vest in the people and their political surrogates, the legislators, must act promptly and effectively and meaningful to upgrade the meaningful to upgrade the human condition of every Indian. The first half of our century liberated India from the British masters. The second half of our century should liberate Indians from the Indian masters. And if parliamentary system performs as a noisy cover-up and conspiring against the people where all the parties – independents count for little, however, good this title for intellect and integrity desert the poor in practice as they do, except as the verbal level, not may have to reform the current eccentricities of legislative manufacturing. As Som Nath Chatterjee, the Speaker of the Lok Sabha of India, said our MPs are working a day and night overtimes to destroy the democracy in our country. Politician have no concern with the miseries of common man . They are busy in smashing the black money and deposit that black money in Swiss Banks.. The quantum of black money is so much that it is a danger to the country. The black money economy is stronger economy than the real money .Even the highest seat of justice [ Supreme Court] have failed to compel these politicians to bring back the black money from the Swis Banks to India and do justice with the common man. Politicians start shedding crocodile tears when the people tell about their miseries. For Example M.L.A.s Of the Panjab Assembly went on tour to Switzerland in search of Scotch Whisky When the people were drowning in the flood water and the state was in financial crisis.[6]How they can think of common man as irrespective of the party they are puppet in the hands of Haves. And the Have do not believe in paying more than 5% income as income Tax Where The Police instead of reforming the criminals compelling them to continue their profession so that they[Police] may continue to collect Haftas or monthly. Where Equality before law only in the papers as high are above the law eg. In Badal’s corruption case inspiteof 22witness becoming hostile law is sleeping as the accused are Cief Minister Dy C. M. of the state. They shed crocodile tears not that they have sympathy with the people but because they want to win their vote bank. Even they do not feel ashamed to cook their loaves on the funeral fire of the people. Those who dare to raise voice against them are shot dead either by their stoose or by the police in false encounters declaring them either Naxlite or criminals or terrorist. One can imagine the fate of a nation where banned drugs and other intoxicants are smuggled and traffics either by the politicians or by their stoose. Where THANAS are auction among the S.H.O.s of the State. Where jobs are auctioned by the politicians. Where people are burnt alive under the garb of religion. Where false cases are framed and false evidences are produced in the courts . Yet politicians are talking to eradicate the corruption and poverty from the country. Where politicians are either themselves criminals or they side with criminals. Where money power and mussel power have all in all in the elections . Where an honest person cannot dreamed to contest the election. Where most of the population have not two time meals to eat and they sleep hungary. On the other hand grains are rotening in the stores. When the judiciary ask the legislature to provide food to the hungry people legislature say you are interfering in our jurisdiction. where throwing shoes and damaging public property is offence outside the Parliament and State Assemblies but privileges inside the house This is the picture the politicians made of my Bharatmata. Where most part of the budget is spent on the security and maintenance of the politicians. It said
“The law locks up both men women
Who steals the Goose from off the commons ,
Buy let the greater felon loose
Who steal the common from the Goose[7]
. When they are arrested in any case they blame the opposite party

. ...Indeed, the Westminster pattern, good for islands of small, compact and integrated populations cannot waste where a huge demographic diversities exists with cultural plurality, religious multiplicity, economic and social disparities and backwardness in literacy and life-style. Parliamentary reform is the first need of India, to make our democracy not merely political but economically and socially sensitive sensible and socialist. Today, all the pyrotechnics in the parliamentary proceedings hardly provide efficacious legislative remedies for our socio-economic maladies. Law delays at the legislative and pre-legislative levels are for more horrendous than in courts. People are kept ignorant of this opium of party politics throwing up ir rhetorical bubbles, dog-fight sceneries and little beyond chaos to shape the politics ad make the laws and monitor implementations that affect the lot of the million. Many of them went through the formality of dropping ballots with sweet hopes later to discover themselves over dupes. The party system the Cabinet government and the parliamentary process and need overhaul to bear its agonies of India unlimited and act creatively, not negatives as now, so that social justice, granted by the national title deed we call the Constitution, may become a living fact, not an election gimmick or mendacious to item in the manifests. It regrets few parties can claim to be exceptions, right centrist or left, to this criticism and against the British, American and Indian party system.

While focusing on the economics of democracy, Sydney we rightly studies:
“The inevitable outcome of democracy is the control by the people themselves, not only of their own political organization, but through that also the main instruments of wealth production, the gradual substitution of organized cooperation for the anarchy of the competitive struggle .... The economic side of democratic ideals is, in fact, socialism itself”.

Jawaharlal Nehru struck a similar note:
“The French revolution of 150 years ago gradually ushered in an age of political equality, but the times have changes and by itself is not enough today. The boundaries of democracy have to be widened now so as to include economic equality also. This is the great revolution through which we are all passing”.

An activist involvement of the common people, not merely the elite, is needed for developmental democracy. The mere exercise of dropping a ballot in a box periodically is but formal democracy although we cannot overlook Winston Churchill either.

At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit to paper – no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.

A country which has adopted the parliamentary system can preserve its democracy only if actors in the drama are outstanding at least in the formative days of the institution’s development. We must nourish the roots of parliamentary tradition and cherish the fruits of parliamentary functions if the credibility of the community at large is to sustain this great institution during the critical decade we are passing through. Our nascent national independence needs stability and progress, if our pluralist politics, with acrimonious polemics, are not to imperil the fulfillment of our democratic destiny. And, Parliament being the grand inquest the nation, the highest legislative body in the country and the supreme controllerate over the Executive and, for impeachment purposes, even over the judiciary, the measure of success of our democracy depends on the efficacy of the parliamentary process. If the Speaker wilts or wobbles or betrays the sacred trust as umpire, engineer and monitor, Parliament tends towards sound and fury signifying nothing, or, even worse, a treachery on democracy, political opium of the people or a self-alienating, through expensive, irrelevance to the national process. The Speaker is the symbol of the power of Parliament and by his presence and silence, permissions for discussions and pronouncements on objections, makes the proceedings responsible, informed and sensitive deliberations of the elected representatives of the Indian millions and not the noisy circuits of oral athletes or procedural wrangles fought by methods common among our simian ancestors. I dare not answer, even if you dare ask, how our legislatures are performing. Any how, the parliamentary system is working so successfully that having of the parliamentary system itself, some say, is the issues at election. Some people confuse between reforming an institution replacing it.

Elections which make democracy viable have become so colossally expensive, if run as now that public life if polluted through money power. Who runs the government? Politicians. Who runs the politicians? The underwriters of elections expenses. The unholy alliance between the politics of business and the business of politics exists in all parties and beyond being polluted or over-awed by Government are needed. Likewise, communalism is disturbingly deepening and disrupting the integrity of constituencies and country.

Vishinsky, addressing in 1946, lawyers in Paris, clarified:
After all, what is democracy if not the powered the people? ... As Lenin said, every worker of our nation should be able to govern. Democracy in the Soviet Union us in fact the participation of tens of millions of people in the government”.

In India the legislative institution suffer from functional failure for many reasons the art of legislation here is professional component what with specialized subjects and complex societal. The lay legislator may constitute to broad policies but cannot match the expertise expected in legislation. Therefore, it may be a god constitutional recommendation that broad spectrum representation for professional and scientists social workers and life groups, be given in committees constituted for law enactment. Legislature is not a common man’s cup of tea and the average number can hardly cope with the task. The committee system of the US Congress and the legislative commissions of the Supreme Soviet have some lesson for us which may be brought into the constitution by appropriate amendments. Statement of the Speaker Som Nath Chatterjee in Parliament that MPs are working day and night overtime to destroy the democracy also indicates the above necessity.

Somnath Chatterjee remarks in the Parliament on the indiscipline of M.P.s. Is that they are deserving even a Paisa as their salary on the other occasions he remarks that Indian Parliament should be permanently dissolved. On the other occasion he said our M.P.s are working over time to the end the democracy.

Now read the bitter letter to the editor published sometime back.

Sir, I am ashamed to say that I am the President of the Nation where the large sections of the people do not earn even Rs. 2/- a day so said in Sanjiva Reddy while laying the foundation for the Railway Workshop at Tirupathi”.

Conclusion: I conclude as follows:
A democratic free country where the price of human live is a cupful of coarse Atta, a handful dal, where years have passed by and they hove never known the taste of a green vegetable, who while others of their age play amidst the mango groves, the little ones have never known the taste of a mango, where for almost a decade, they have never been allowed to go out as a family and never known the pleasure of jingling a handful of coins in a pocket!

As Clement Attlee said – If a free society cannot help the many who are poor, it cannot save the few who are rich.
[1] Associate Professor Deptt. Of Laws Panjab University Chandigarh
[2] William H. Harthe.
[3] Junes Higgins, Editorial, Gazette and Daily, April 12, 1956.
[4] Ranade, Ram Keshave, Indian Review, vol. 63, 1964, p. 65.
[5] James Madison.
[6] Pull of land of Scotch irresistible for M.L.A.s The Tribune July 9&18 ,.
[7] Iyr Krishna V.R. Law And Social Change.

Authors contact info - articles The  author can be reached at: drpremnath@legalserviceindia.com

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