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DEMOCRACY, ELECTIONS AND

INCLUSIVE GOVERNANCE

A Rule of Law Perspective

Sambridh Ghimire
Vth Year
2012
In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control
the governed; and in the next place oblige it to control itself.

James Madison
INTRODUCTION

At the bedrock of
All modern civilizations Why democracy as a
democratic principles are
today aspire to create or system of governance
universal freedoms such
preserve the ideal of a allows for extensive
as freedom of speech,
democratic form of representation and
expression and
government inclusiveness
association.

Many nations, therefore, When such limitations do


primary difficulty with a have resorted to the
democracy is limiting the exist, the accountability
constitution as means to of political parties and
authority of the impose limitations on the
government elected representatives
authority of the should ideally increase
government
THE CENTRAL QUESTION

In a constitutional democracy, how can citizens and other non-state actors alike ensure
accountability from political parties or representatives?

Theoretically, constitutions provide for such limitations, but practically, citizens wield
power against their elected representatives only during the time of elections. During
the five-six years in between, political parties and representatives do not feel any
obligation or compulsion to fulfill their election mandates, constitutional or statutory
obligations.
HYPOTHESIS AND ARGUMENT

Rule of law, an essential feature of every constitutional set up, can serve as an
effective political weapon in the hands of non-state actors to ensure that the
government functions in accordance with the constitutional, statutory and election
mandate.

Till now, this doctrine has been understood in an abstract and theoretical sense, but
it can be effectively be utilized by non-state actors in the sphere of election law to
demand their rights and keep the government in check.
RESEARCH QUESTIONS

What is a constitutional democracy and how is it different from other forms of


democracy?
How are the powers of the government limited in such a democratic set up?
How can the democratic process be destabilized by politicians in power (in the
absence of accountability)?
How can the doctrine of rule of law be applied to the sphere of election laws?
Can this doctrine be effectively interpreted to be a political weapon in the hands of
citizens?
Practically, how can citizens enforce rule of law against politicians and elected
representatives?
STRUCTURE OF THE PAPER

Constitutional Democracy and Rule of Law

Rule of Law and Elections

Understanding Rule of Law in the Indian Electoral Context

The paper will primarily be analytical where theoretical principles will be applied
to electoral law. Further, it will be an investigatory paper to see how case law in
India has applied rule of law to elections successfully and assess if such an
approach is feasible
CONSTITUTIONAL DEMOCRACY AND
RULE OF LAW
Constitutional type of political regime wherein the authority of the government is
Democracy defined, structured and limited by the constitution of the nation; and
the public has effective means to decide their elected representatives
and measures to hold them accountable for their actions in office.
Contains (a) the constitutional element and (b) the democratic element

Constitutional This element refers to the constitutional limitations imposed on the


Element elected representatives; i.e., the definition and delimitation of the
governments power and authority, distribution of the power among the
various branches of the government

Democratic rooted in the concept of representative democracy and mainly provides


Element for those aspects relating to elections, political parties and associations,
public accountability, and succession to political power. It determines
the way in which the citizens decide who is to have the authority to
represent them
Constitutional Limitations
A constitutional democracy is the antithesis of an arbitrary rule, and is characterized by
limitation on the powers of the elected representatives.

1. Specific Provisions: can be either procedural or substantive. Eg: the First


Amendment to the U.S. Constitution restricts the legislative power of the
government- the U.S. government cannot enact a law respecting any establishment
of religion nor can it prohibit free exercise of religion, abridge freedom of speech or
the right of people to assemble

2. System of Checks and Balances: Here, the constitutional limits on governmental


power is created through the concept of a balanced government, wherein the power is
distributed among the institutions of the government in such a manner that each is
separate and independent of the other, and each institution has the authority to keep
the other in place
Rule of Law and the Constitution

A principle of governance in which all persons, institutions and entities, public and
private, including the State itself, are accountable to laws that are publicly
promulgated, equally enforced and independently adjudicated, and which are
consistent with international human rights norms and standards.

As per this definition, rule of law encompasses the incorporation of a strong


constitution and electoral system, commitment to promote equality and protection
of minority rights.

a constitutional democracy necessarily contains a well-structured constitution


which provides for citizens rights, system of elections, procedural and substantive
limitations on the government-either in terms of positive action or refrainment,
and protection of minority interests in a majoritarian rule. If the government
representatives do not adhere to the constitution, one could rely on rule of law to
ensure that the constitution and other laws are respected.
RULE OF LAW AND ELECTIONS
If the accountability of political parties and politicians is limited, then the democratic
process gets destabilized increases.
If the institutions and structures provide insulation to the executives and government
representatives from any consequences for their action, politicians and parties have no
incentive to work for the people they represent.
If elections are the only means for ensuring some sort of accountability and political
responsibility, and politicians respond to legal responsibilities only before an election,
then parliament becomes irrelevant.
Under these conditions, politicians will be able to subvert democracy and the conditions
of political competition, and protection of human rights.
Constitutional democracy provides for limitations apply rule of law to election laws to
enforce the limitations.
Specific rules and laws need not be in place for rule of law to be applied
Corruption, nepotism, defection which plague political parties can be addressed by this
THE INDIAN CONTEXT
CONSTITUTIONAL LIMITATIONS

Art 101-104:
Part III: Fundamental Art 105: Privileges and
Qualification of
Rights Immunities
members

Art 32 and 226:


Part XV: Election Schedule X: Anti-
Constitutional remedies,
Commission Defection
PILs
Overview of Rule of Law in India
In the early days of the constitution, it was believed that the courts in India would
not invalidate any law solely on the ground that it violated the concept of rule of
law
A.D.M. Jabalpur v. Shivkant Shukla
Change in position, after Keshavananda Bharti and the Basic Structure Doctrine
Plethora of cases: R.D. Shettys case, P. Sambamurthy case
Expansion of the doctrine from controlling legislative and discretionary power of
government to include protection of human rights, fairness and justice.
Applying Rule of Law to Electoral Law

Pre and During Elections

Art 19(1)(a), Romesh Thappar v. Union of India: guarantee of freedom of press


Union of India v. Association of Democratic Reforms: requirement of disclosures
Peoples Union for Civil Liberties v. Union of India: quashing of amendment to
RoP Act, 1951
Common Cause v. Union of India: disclosure of sources and expenditure of funds
Lily Thomas v. Union of India: quashing of Sec 8(4), RoP Act
When the law is silent, the Court has dynamically interpreted the Constitution
to guarantee freedom of speech, of information and disclosure; and where
specific provisions exist, the Court has ensured that political parties and elected
representatives adhere to it and not circumvent it via amendments.
Post Elections

Legislative Powers: how much accountability and limitations on powers exist?


A law may be declared unconstitutional if it violates a fundamental right under
Chapter III, the legislature does not have competence to enact it, or if it violates any
other provision of the Constitution.
If the laws passed by the government seek to either take away the fundamental rights
of the citizens, the same can be challenged by a writ petition or a public interest
litigation under Art 32 or 226.
The courts in India have relaxed the standard for locus standi, such that any public-
spirited person may now approach the court against any grievance with the
functioning of the government.
This is especially useful in cases where the government fails to perform its functions
or protect the rights of its citizens.
Can democracy be subverted through legislations? Indira Gandhi v. Raj Narain:
quashing of amendment which immunized office of PM from election disputes

Defection
Kiloto Hollohan v. Zachilu: necessary for the sustaining the purity of democracy.
SUBVERSION OF DEMOCRACY
Issues to Consider

Are political parties within the P.V. Narsimha Rao v. State


ambit of RTI? Extension of parliamentary
immunities to cover briberies
EVALUATING THE APPLICABILITY OF
RULE OF LAW TO ELECTION LAW

Can it successfully be applied as a political weapon in India?


Through PILs and Writ petitions it has been successfully done so
Applicability does not require the existence of a law, so long as it is in the interest
of justice, fairness and equity
Covers both negative and positive obligations
Applies to politicians, political parties and elected representatives
Seminal cases have brought about significant change to election laws in India
Need to address certain issues
BIBLIOGRAPHY
Primary Sources:
The Constitution of India
Representation of Peoples Act, 1951
Case Law
Books
V.N. Shukla, THE CONSTITUTION OF INDIA
I.P. Massey, ADMINISTRATIVE LAW OF INDIA
Adam Przowski, DEMOCRACY AND RULE OF LAW
A.V. Dicey, LAW OF THE CONSTITUTION

Articles
U.N. Chronicle, RULE OF LAW AND DEMOCRACY: ADDRESSING THE GAP BETWEEN POLICIES
AND PRACTICES
Thomas Carothers, RULE OF LAW REVIVAL
Max Kempelman, RULE OF LAW AND FREE ELECTIONS

Reports
Election Commission Compendium on Supreme Court on Election Law
THANK YOU

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