The Juggernaut of Democracy

The temple car festival in the Indian town of Puri (Odisha state) is said to have so stunned the foreign travellers like Franciscan Monk Odoric of Pordenone in the 13th century that Europe came to accept the term "Juggernaut" as meaning something so immense, so powerful and overwhelming. From HG Wells to so many writers used the term juggernaut to describe events and feelings of people in their works. The term has come to part of a few thousand Hindustani words that have been incorporated into English dictionaries. 

If a mere temple car of wood, few hundred tons in weight, invokes such awe and wonder, elections in the coming days in India that involves the biggest exercise in democracy anywhere in the world should actually be stupefying. How the world takes India may be a question for debate, but how India takes this mammoth exercise is a wonder beyond anything that ancient, medieval or modern history has ever witnessed. Take some statistics to understand this wonder:

1. Elections will be held for 543 constituencies in 07 phases between 11 April to 19 May 2019 across India. Indian Parliament has 543 representatives of people from across all communities and minorities including marginalized sections called Scheduled castes and Scheduled Tribes.

2. A total of 1,841 political parties will contest in the general election 2019. More than 8000 candidates are being fielded by these parties.

3. As estimated by a leading center for media studies, the elections will cost INR 500 bn (USD 75 mn) 

4. 90,00,000,000 voters are expected vote. This is 9,00,000,000 (10% increase approx) more than the last general election in 2014.

5. In the last general election in 2014, 6600000000 people voted. Statistically speaking, it is about 81 percent. If we take that as a trend, 7200000000 people will vote today. Nearly a sixth of these voters are first time voters. Approximately two-thirds of the voters are around 35 years of age.  

5. Election Commission of India will set up 10,35,918 Polling Stations in the country. This itself perhaps is a world record. If China does not turn to electoral democracy, such records set by India can never be broken by any other country.

6. 11,00,000 Electronic Voting Machines (EVMs) are slated to be used in these polling stations.

7. Even transgenders are registered as voters. Approximately 39000 are registered.

The 17th General Election in a span of nearly eight decades of the independent history of the country speaks volumes about the strong foundations that the makers of India Constitution sowed in 1950. It also reflects the strong ethos that are ingrained in the Indian psyche, literate or illiterate by common standards of the world. It is a belief that transcends the normal, reflecting the  innate ecclesiastic character of India.

The Juggernaut will roll in the phases that it is scheduled. Yet again, it will decide the course this great democracy will take in the next five years. The course that it takes will not only affect the dreams of its billions of citizens; it will also affect the destinies of South Asia in an era when dominance over South Asian waters is vigorously sought by neighbors with not so democratic a credential that this Juggernaut can flaunt.

  

Symbolism and National Culture

On the 26th of every year, the Raj Path in Delhi comes ablaze with the crunch of military boots and the clank of armoured vehicles. Columns after columns of soldiers in their finest dress uniforms march past the President of India who solemnly returns their salutes. Braving the biting cold and early morning fog, thousands of people from Delhi and all over the country line up the Raj Path and the road leading to Red Fort, waving flags and chanting 'Bharat Maata ki Jai'. 

As has been the tradition from 1950, the Prime Minister of India pays solemn homage to the martyrs of the Armed forces, symbolically to the entire serving personnel in uniform, at the India Gate memorial. Then the supreme commander of the Armed Forces, the President of India, takes the salute of the serving, retired veterans from all shades of uniform as they march past the saluting dais. What follows are contingents of cultural troupes and tableau that represent the unity of diverse Indian culture. As I watch the panorama unfold every year, a question comes to the mind – why is that the prime Minister pays homage at India Gate, whereas the President takes the salute? And, some simple answers strike the mind.

The Prime Minister, as the executive head of government is the one who will commit the Armed forces into action in war, for war is a political decision. Those millions of men will fix bayonet and pounce on the enemy, defending the territorial integrity and sovereign principles of this country at his command. The sacrifices that they make are the price that he will pay to safeguard the political unity of India as a country. Hence, it is only proper that he recognizes their sacrifice as vital to the safeguarding of the edifice that is India by paying homage at India Gate.

The President, even though designated as the Supreme Commander, is the sovereign head of state. Like the monarchs of yore, he presides over all institutions of statehood – the Legislature, the Executive and the Judiciary. It is in his name that acts are passed; executive decisions are conveyed and judicial pronouncements are upheld. The Armed Forces represent the power of the sovereignty of which the President is the face. That is why he presides over the parade as well as the cultural representation of the country.

The RD parade is not just a parade that displays India’s military might. It is not an occasion that merely represents India rises in the world as a sovereign democratic republic. It is a showcase of the fundamental principle that the founding fathers of this nation held as most dear to them – unity in diversity. A nation of thirty three million gods including the gods that humanity ever invented elsewhere; a nation that speaks 22 languages and over 1600 dialects; and a nation that celebrates the unity of its spirit in its abundant diversity. India - the enigma, the puzzle, the beauty, the indescribable.

The great saint of our times, whose 150^th centenary that we observed last year, Swami Vivekanada, said that it is in its indomitable faith of the spirit that India is actually one. The gods are merely representational. John McLeod, in his Beginning: Postcolonialism, says “Nations are not like trees and plants: they are not a naturally occurring phenomenon”. And, Eric Hobsbawm argued that, ‘the nation depends upon the invention of national traditions which are made manifest through the repetition of specific symbols or icons. The performance of national traditions keeps in place an important sense of continuity between the nations present and past, and helps concoct the unique sense of the shared history and common origins of its people. Nations often traffic in highly revered symbols that help forge a sense of its particular, idiosyncratic identity in which the nation’s people emotionally invest”.

It is important that, unlike the Delhi CM Arvind Kejiriwal who called it as a showcase of VIP culture, we understand that the RD Parade is an occasion when the cultural unity of India is strengthened. Such displays help the people of India bond with the idea of the nation that we are and reinforce the idea of an India that is strong and rising. In fact, aside Delhi, Tamil Nadu is one state that observes the day in the true spirit of the Republic representing the best that is in the traditions of Tamils as well as the country. We must continue to have these symbolism, while parallelly building through education and practice, strong character and respect for multicultural representation in our public and private life, if we are to make India the super power that we all dream of.

Silk Road Reaches Europe

Pliny is said to have lamented two thousand years ago that Roman woman wear their Chinese silks in such a way that there is nothing left for imagination! More so was the colossal amount of silver and gold that poured out of Rome and Athens into China for the goods that the population in Southern Europe adoringly imported from there. Of course, with the conquest of West Asia by the Mongols, the direction of flow of the bullion and silver changed a little initially but reverted back to heartland China when Kublai Khan established a kingdom that we know as China today.

History has a penchant for repeating itself. In so doing it appears to offer the peoples affected by it opportunities to draw lessons from its earlier cycles and correct their courses. Those nations that do manage to learn their lessons will go on to become empires. Those who don't are, of course, condemned to repeat their past.

And no one seems to have studied the lessons of their history better than China. On 23rd March 2019, China signed an MoU (however non-binding it was made to sound) with Italy by which Italy has agreed to join the Belt Road Initiative (BRI). The new Silk Road that China has been meticulously canvassing for in the past six years, gathering about 70 nations across Central & South Asia and Africa in its fold, has now formally reached Rome, once again after a thousand years.

Nations across the spectrum have been making noises about the debt-diplomacy that China has used to extend the reach of its BRI. With over 13 Trillion USD in its kitty, its pocket is indeed deep and it is but evident that the terms of offer of financial assistance are anything but tempting to cash-starved nations. Added to the lure of attractive development assistance, it is the anticipated development itself that serves as the major attraction.

It is easier to fall prey to the temptation of China baiting on its debt-diplomacy. Instead, we must admit a simple fact that nations will have to act in their best national interest and no country that is in the 'ivy league' of nations can be said to be acting otherwise, purely in international community interest. Therefore, it is perhaps time for international lending agencies to take a call on their lending terms and see whether the 'ailing' and needing nations could be extended assistance under more affordable terms to help realize their developmental goals. While doing so, it is also necessary to avoid playing into the hands of geopolitical compulsions that may again push nations to seek assistance from other softer privy purses. The agenda is not to counter China. It is to balance an approach that will help nations to work together to achieve goals that create economic opportunities and prosperity in their own lands.

China may go ahead and realize its BRI objectives with or without interference from other big players in the arena. That China does so is not necessarily a cause for concern if the community of nations along its way take their calls for cooperation on BRI after due consideration of their longtime national interests. The political leaders in those countries should avoid joining the bandwagon for immediate political or even personal gains. 

The Four Seasons of Patriotism

Barack Obama, unarguably one of the greatest contemporary American Presidents, is quoted to have said: 

"We, the People, recognize that we have responsibilities as well as rights; that our destinies are bound together; that a freedom which only asks what's in it for me, a freedom without a commitment to others, a freedom without love or charity or duty or patriotism, is unworthy of our founding ideals, and those who died in their defense".

One of the most important aspects that his statement highlights is that there can be no freedom without commitment; that there can be no freedom without patriotism.

It is perhaps interesting to sit back and look at ourselves on occasions when we feel patriotic. We will be amused to find that our patriotism is of four seasons.

The first season starts with the arrival of national days like our independence day, constitution day, etc. With the advent of social media, we get a flood of messages, often repetitive and from people of whom you are convinced that they are incapable thinking beyond the shadow of their shoes. But then what the heck? You get reeducated on the significance of such occasions; the people who penned your national anthems; what the founders of your constitution said or unsaid; the great bind (I still am on the look out for it for the past half a century) that connects us one people; etc, etc. Of course for the majority of kids (I am not sure if kids could be 16 and below. After all every one is a kid to their parents), such days are usually granted holidays to spend time with family and friends.

The second season arrives with the disembarkation of a coffin that is wrapped in the colors of the country. The media makes a beeline to the funerals in which smartly dressed soldiers (police, etc) lift their guns on to their shoulders and fire empty shells into the air. The whole community gathers around the glare of cameras to tell the world how proud they are that the man in the casket died. What they do not say of course is how happier they are that their own youngster finished his engineering or MBA from MITs, Harvards, UCLAs and the like, and is entrenched in a war with corporate honchos that is much more grueling. They regret that the sacrifices that their wards have made (think of those board meetings lasting into mid nights, those un-celebrated birthdays and anniversaries, those missed holidays or time with family) simply go unsung.

The third season arrives with dazzling insights. Standing in front of the jury and judges for having committed such innocuous acts like cheating millions out of unsuspecting investors, declaring solvency  after building empires out of the sweat of millions, and such like. One does wonder why freedom doesn't include the freedom to loot? Is anybody holding the early Americans, Australians, Britons, French, Dutch, Spaniards and Portuguese (did I leave out any one...) for what they did to the natives just to get hold of the wealth of the land. Why then are they making such a fuss now? After all, I am no Columbus or Captain Cook. It's my own country and these others seem to have what I desire of them...

The fourth is a season of opportunities. It usually belongs to the political class and sometimes to the wealthy and influential movers and makers of the nations. They, of course, have the privilege of invoking it in times when they find that the going is not exactly not in the directions that are to the liking of their ilk.

The four seasons of patriotism apply to every sovereign territory that we may belong. They are universal. And, these are the seasons that apply to every region irrespective of the terrain that any nation can claim of. They do not belong to a terrain or climate. They are universal. That is the beauty of patriotism.

Curtailing Individual Liberties: Test of Reasonableness

Curtailing Individual Liberties: Test of Reasonableness

 

The right to personal liberties cannot be unbounded. In any ordained and structured society, the object of criminal justice is substantially different from that of civil justice. While in the civil process, an individual seeks to redress the violations of his individual rights; criminal justice system seeks to remedy the wrongs that the society, through law established, perceives as done against the society (despite the fact that the victim is an individual). An interesting view was voiced in the Criminal Law journal in 1998[1] that the police, prosecution and the courts are concerned with the rights of the criminal and are largely unaffected by the plight of the victim, because the criminal justice system’s primary objectives are societal in nature!

Art. 21 prohibits the denial of individual life or liberty, except by procedure established by law. It is worthwhile to dwell upon the import of ‘procedure established by law’ to understand its effect of individual liberties. Courts in India have interpreted this ‘procedure’ as wide enough to cover the entire process by which the deprivation is effected, not merely to include the adjectival but also the substantive part of law. Take the example of preventive detention. If a person is placed under preventive detention on a ground other than those set out in the law, the preventive detention would obviously be not according to the procedure established by law, because the procedure set out by law prescribes certain conditions under which alone such a detention can be resorted to. If those grounds do not exist, then the detention would be in violation of Art 21. Every facet of law that deprives a person of his life or personal liberty would, therefore, have to stand the test of reasonableness, fairness and justice in order to be beyond the inhibition of Art 21[2] which is also implied by the ‘due process’ clause.  Such constraints as are placed on an individual, needless to say, ought to be minimal and cannot exceed the constraints of the particular situation, either in nature or in duration. Above all, they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of the person and of privacy has to be maintained at all costs and that cannot be violated under the guise of maintenance of law and order[3] 

Though the makers of the Indian Constitution deliberately abstained from including the ‘due process’ clause of the American constitution, in construing the permissible restrictions on the freedoms guaranteed by the constitution, the Supreme Court of India has, as a matter of construction, given effect to the same considerations that weighed with the Supreme Court of America while applying the ‘due process’ clause and the doctrine of the police power. Apparently, the question as to whether the restrictions imposed by law are reasonable or not is subject to examinations by the court by an objective test[4] Laying down the foundations for the test of reasonableness the learned Chief Justice, Mr. Patanjali Shastri, said:

“It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonable can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at that time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with the legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, consider them to be reasonable” [5]                

The democratic values and traditions that have evolved since the clarion call of the French Revolution for ‘liberty, equality and fraternity’ are at the foundation of every democracy around the world. Inalienable right to life with dignity and the pursuit of all necessary means to this end cannot be deprived of to any individual, except when such individual has to stand the scrutiny of established law for an act or omission that infringes on the liberties and rights of all other members of the society. Under these circumstances, the need to curtail individuals’ rights so as to subject him fruitfully to judicial scrutiny has the sanction of Constitutions and Courts across the world. Even then, no arbitrary and oppressive measures and procedures are accepted except those that stand the test of reasonableness. A comparison with the mandates of Canadian and New Zealand Courts on the ‘reasonableness’ of restrictions would reveal that the concept of individual liberty being subject to social needs is universally acceptable.   

In order to determine reasonableness, Canadian and New Zealand Courts have both developed sets of principles. A Full Court of the High Court in Solicitor-General v Radio New Zealand Ltd discussed the relevant authorities[6] It was stated there that the starting point in applying the substantive test is the Supreme Court case of R v Oakes[7]  where the Court set out a detailed test. In an early formulation of the applicable test, the Court said that a limit will be reasonable and demonstrably justified in a free and democratic society if:

"(i) the objective sought to be achieved by the limitation at hand must relate to concerns which are pressing and substantial in a free and democratic society; and

(ii) the means utilised must be proportional or appropriate to the objective. In this connection there are three aspects:

• the limiting measures must be carefully designed or rationally connected to the objective;
• they must impair the right or freedom as little as possible;
• their effects must not so severely curtail individual or group rights that the objective of the limitation, albeit important, is nevertheless outweighed by the restriction of the right or freedom concerned." [8]

The New Zealand High Court in SG v Radio NZ Ltd rephrased the test slightly as follows, although this clearly follows the two-stage approach adopted by the Supreme Court:

"...To establish that the limit is both reasonable and demonstrably justified in a free and a democratic society the law creating the limit on the right of freedom must have an objective of sufficient importance to warrant overriding a constitutionally protected right or freedom. ...The means chosen by the law to achieve the objective must be proportional and appropriate to be objective. ...To meet the requirement of the proportionality test there are three components. First, the limiting measures or the law must be designed to achieve the objective not being arbitrary, unfair or based on irrational considerations. This is described as being rationally connected to the objective. Second, the measures or the law should impair as little as possible the right or freedom. Third, there must be a proportionality between the effects of the measures or the law responsible for limiting the right or freedom and the objective. The law which restricts the right must not be so severe or so broad in application as to outweigh the objective." [9]

 

It is as well to remember Judge Hand when he said, “ liberty lies in the hearts of men and women, when it dies there, no Constitution, no law, no Court can even do much to help it”. Having due regards to such enduring realities in the sustenance of orderly society, the Constitution also guarantees certain inherent rights to the accused to protect his basic rights, when it is subjected to unreasonable and oppressive restrictions. Art. 20 of the Indian Constitution provides that:

“ (a) No person shall be prosecuted and punished for the same offence more than once.

   (b) No person accused of any offence shall be compelled to be a witness against    

   himself.”  

The protection afforded to the individual under these provisions is not merely in respect of testimonial compulsion in the courtroom, but it also extends to any compulsory process for production of documents that are likely to support the prosecution case against him.

---

[1] 1998 Cr LJ, Journal Section at 74.

[2] Bachan Singh v. State of Punjab, AIR 1982 SC 1325 at 1340.

[3] Rupinder Singh Sodhi v. Union of India, AIR 1983 SC 65 at 66.

[4] “The determination by the legislature of what constitutes a reasonable restriction is not final and conclusive; it is subject to the supervision by this court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the constitution and in exercising its functions it has the power to set aside an act of the Legislature if it is in violation of the freedom guaranteed by the Constitution.” Mahajan, J. in Chintaman rao v. State of Madya Pradesh, (1950) S.C.R. 759 at 675; Jyoti Prasad v. The Administrator for The Union Territory of Delhi, (1962) 2 S.C.R. 125.

  

[5] State of Madras v. V.G. Row, (1952) S.C.R. 697; State of Uttar Pradesh v. Kaushalya Devi, A.I.R. (1964) S.C.R. 416 at 422.

[6] [1994] 1 NZLR 48 - the Full Court being a two-member High Court of the Criminal Division, in this case Eichelbaum CJ and Greig J.

[7] (1986) 26 DLR (4th) 200.

[8] That decision was later affirmed and followed by the Supreme Court of Canada in Irwin Toy Ltd v Quebec (Attorney-General) (1989) 58 DLR (4th) 577 and Re A Reference re Public Service Employee Relations Act [1987] 1 SCR 313, 373-374. The latter case was referred to with approval by the NZCA in MOT v Noort; Police v Curran, above n 86, 283. Cases have, however, moved away from requiring limitations to impair rights "as little as possible" (requirement (2) of the proportionality test) to a more flexible test of "as little as reasonably possible".

[9] This was subsequently cited with approval in Duff v Communicado Ltd [1996] 2 NZLR 89. Note that in MOT v Noort; Police v Curran, above n 86, (which pre-dates the latter case law) Richardson J said at p.283: "It is worth emphasising too that in principle an abridging inquiry under s 5 will properly involve consideration of all economic, administrative and social implications. In the end it is a matter of weighing (1) the significance in the particular case of the values underlying the Bill of Rights; (2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights; (3) the limit sought to be placed on the application of the Bill provision in the particular case; and (4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits."

Welcome!

This blog is a forum for anyone interested in South Asian affairs. History, literature, culture, anthropology, people, practices, photos and all else is welcome. As a research scholar on governance in South Asia, I intend keeping this relevant and a healthy platform for sharing constructive and intellectually stimulating platform. In case any of the readers wishes to contribute, please feel free to participate, witha view to enhance our understanding of this part of the world that we live in.

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