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Swaminathan Aiyar has written a somewhat interesting piece in the Times of India today. Titled ‘Democracy depends on the unelected’, he raises some appealing issues on the status and working of the democratic process in India and the role of the unelected institutions. (See TOI, Sunday, Editorial 27th Jan, 08)

“The Constitution created other unelected bodies such as the Supreme Court and the Election Commission – which are the most respected in India precisely because they keep elected politicians in check.”

These are the last few lines in the Article that sum up his basic arguments in the paper. What is worth to be noted is that Mr. Aiyar bases this on the primary premise by drawing a link amongst what he suggests are the most respected institutions in the Country (The SC, Election Commission and the Army) – that they all are unelected. Theoretically this statement could be true, but I’m not sure with the present state of things in the Country, I’d agree with it.

When the Supreme Court goes on a popularity track, deciding cases it is not authorized to do so, creates new mechanisms to solve issues; it violates the democratic ethos in the Country. When the Court has decided according to the law, it has always gained respect in the eyes of the people. On the other hand, when it has involved itself with political questions and not decided otherwise according to the law, it has lost the respect of the people. The best examples of losing respect that I can give are ADM Jabalpur and PV Narsimharao’s case( JMM Bribery case).

I have written earlier that there is an idea of constitutional limitations prevalent in our Country and the Court is presented with the task to see that the executive and legislatures work within these limitations. Needless to say, the Court itself is bound by these limitations and cannot violate them. Mr. Aiyar rightly points out that the Constitution has created institutions such as the Supreme Court and the Election Commission to limit the abuse of political power – that is the very idea of judicial review that is prevalent in the paramount parchment. However, the ‘most respected institution’ in the Country must exercise some amount of self-restraint in interfering with the democratic process. The more it does so, the more it loses respect.

The second part of Mr. Aiyar’s piece, one that I totally agree with, is about the two pillars of democracy. Mr Aiyar elucidates that democracy stands on two pillars- Constitutional democracy that lays down the rule of law, and popular democracy that elects the politicians.

“Constitutional democracy nurtures dissent, which elected politicians would dearly love to squash if they could”

The essence of democracy is about the right to dissent and be heard and it is the Constitutional democracy that protects this rights, while popular democracy supports the majority with and interplay of money and vote-bank politics. It is very essential in a democracy that the rights of minorities are protected and Constitutional mechanisms do precisely that. The individuality of the rights guaranteed under Part III of the Constitution and remedies for the same under Article 32 are sacred in this nature.

I was a little surprised to see Mr. Aiyar writing like this at first, but after remembering his views on Gujarat and other similar situations, one is expected to get such views from him. On republic day, he seeks to pay tribute to the unelected officials for preserving the democracy, mainly the unelected constitutional framers (Constituent assembly) who gave us the document.

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Over the past month, I’ve been researching on the judiciary and its role in the modern day Indian democracy. While I am in the process of writing a paper on the same, what you’d find below are some preliminary deliberations on the theme.

In the 17th Century, when King James I stated that his will was supreme, Lord Coke replied by quoting Bracton, a medieval scholar monk, “Rex non debet esse sub homine sed sub Deo et Lege” – “The King ought not to be under any man, but under God and the Law”. The story of this exchange is said to have echoed through the years as a symbol of judicial courage in establishing the principle that all those who govern are subject to the supreme law.

In the Indian context, this would reflect upon a well established notion that all the three branches of the government are subject to the powers and limitations of the Constitution. While the Court has consistently harped on this doctrine for over seeing the functions of the executive and the legislature, it has somewhere down the line failed to realize that it itself too is a part of this doctrine. In the above statement, I specifically refer to judicial activism which I think is wrong. Wrong because if there does exist a theory of constitutional limitations, then there is no justification for the usurpation of legislative law- making power when all it is meant to do is to interpret and apply the law. In Vishaka  and Vineet Narain, the justification that they gave was that they were merely filling the gaps as the legislative and executive had failed to do their duty. Most may argue that this process was the need of the hour and is right even if unauthorized, but I disagree. In a democracy, the Court is never meant to be a popular institution, it is the legislative that is the people’s representative and they alone have the mandate to make the law and this power in no way can be exercised by unelected representatives. If the legislative does not perform its duty then they can always be thrown out in the next election process.

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To the thousands of Palestinians who managed to escape Israeli tyranny by bombing the wall out and escaping to Egypt.

To the other hundred thousand who still have to face it.

When Anil Kumble took his 600th wicket, though I don’t think most people noticed it on TV, Adam Gilchrist took out his pads and gloves and congratulated Kumble. I consider a true gentleman’s gesture, an act that is quite laudable with the recent controversies in mind.

The incident also reminded me of my riding days at school (RIMC, Dehradun). The time was during the IPSC National Equestrian Championships, sometime in 2003. After a full round of tent- pegging, while I was show-jumping, my fault was miscalculated and I was declared third. However, as a Captain I got the error corrected and had to forego the place to some guy from Punjab Public School, Nabha. My Commandant, Col. Mamgain and Gen Shergill lauded me for the incident.

No self- appraisal being done here. Just plain nostalgia. I loved my school, the time I had there and my coursemates, seniors and juniors. Sob! Sob!

🙂

The stage is all set for a contempt of court proceeding. On one hand we have the highest court of the country ruling that no more ‘bull fighting’ or Jallikatu is to take place in the Country and on the other we have the performers getting set to defy the ban and pressurising the State government to do its best to vacate the stay. CJI KG Balakrishnan remains adamant on the non removal of stay calling it a barbaric practice reminiscent of the stone age.

“The Supreme Court declining permission to allow the cruel event is wonderful,” said Maneka Gandhi, India’s best-known animal rights activist.

So when animal rights groups called this practice as barbaric, I’m not sure they had this situation in mind. More and more over the past few years we are seeing dissent over the rulings of the Supreme Court. Perhaps the ills and cries of judicial activism have gotten on the people too who are now feeling there’s too much interference by the judiciary in their lives. When law is made by the existing democratic machinery, the remedy for its non obeyance and irregularity rests in the Court and the hands of the electorate. But sadly, no such mechanism exists for judge made law and the only option of expressing dissent is contempt. This is not judicial activism in its strict sense but an instance of how the judiciary is playing an increasing role in our daily lives and the question that then arises is if it is right or wrong to do so?