Dilip Borah

Here we must recall the four principles that Mahatma Gandhi gave us while leading the greatest non-violent movement against the biggest colonial power the world has ever seen: truth, non-violence, welfare of all and peaceful satyagraha.

A democracy to be considered as real must subscribe to and practice in toto, the rule of law. And the rule of law, besides other criteria, implies that all are equal before law, howsoever high or low the person concerned might be. Independent India, in its Constitution, proclaimed itself to be a sovereign, socialist, secular, democratic republic and solemnly resolved to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among us all, fraternity, assuring dignity of the individual and the unity and integrity of the nation. Such lofty ideals indeed are the true signs of a real democracy where no individual is inferior to another so far as his personal liberty and dignity of his self are concerned. We, therefore, are and without any qualifier, must be proud to have such a Constitution governing us in all matters of our life, private and public.

However, in practice, these ideals seem to have fallen way short of guaranteeing us our democratic rights and in fulfilling our aspirations as a democratic nation when we see them in the light of the acts of omissions and commissions that have plagued the various organs of governance including, unfortunately, even the higher judiciary. It is a worldwide phenomenon in all democracies that the Executives, of whatever hues they may be, try to usurp all power of governance and tend to act in a high-handed and undemocratic manner whenever the citizens confront them with their acts of omissions and commissions. This is no surprise as it is in human nature to be selfish and self-serving whenever any opportunity arises whether in one’s private or public life.

This failing of human nature is aptly brought out in the context of executive behaviour by the British MP, Sir John Dalberg-Acton, who famously said in one of his steering speeches to the British Parliament, “Power tends to corrupt and absolute power corrupts absolutely.” The Constitution makers of all the democracies in the world were and are alive to this phenomenon of power tending to corrupt the power-wielders absolutely and hence, make provisions of an independent judiciary to act as the watchdog of democracy and protectors of individual rights, personal liberty and human dignity. India, as a thriving and practising democracy, is no exception to this general rule.

Unfortunately, however, over the years, it has become more and more obvious that the Constitution makers of democratic India, in their zeal to protect the sovereignty and integrity of the nation, made the Executive so very powerful that, with time, all organs of democratic governance including the Judiciary seems to have become somewhat less independent and less powerful in drawing the limit to the discriminatory powers of the Executives in putting restrictions on the individuals rights, their personal liberty and the extent of their human dignity. This, in our view, has happened because the Constitution didn’t define in precise terms the extents and reach of the discretionary powers that the framers of the Constitution, in their wisdom, thought fit to confer upon the Executive, especially that of the Centre.

Secondly, the powers given to the Executive to make preventive detention and special laws by which citizens’ rights could be taken away for a fairly long time without giving the victim opportunities to challenge his arbitrary detention and abrogation of his constitutional and human rights is another area of great democratic concern. Since the early days of British rule and shamefully, till today, such laws are very much there in our statute books and are still being enacted, notwithstanding our constant affirmation of democratic norms ruling our public life and our adherence to the rule of law in all matters, public and private!

Of late, such laws are increasingly invoked against people exercising their legal and constitutional rights to criticize and protest government policies, decisions and acts of omissions and commissions. In such circumstances, the citizens have no other recourse but to knock at the judicial doors seeking their intervention in restoring the constitutionally affirmed democratic rights of the ordinary citizens. However, increasingly it is noticed, like the other organs of governance, the Judiciary too, barring a few honourable exceptions, has not forcefully stood by the hapless citizens against the might of the rampaging Executive. A few examples will suffice.

During the First World War, the British colonial administration enacted the Defence of India Act giving the colonial administration sweeping emergency powers of preventive detention for indefinite period, incarceration without trial and judicial review against the Indian subjects. After the war got over, instead of allowing the Act to lapse, the colonial powers brought out the infamous Anarchical and Revolutionary Crimes Act, better known as Rowlatt Act, 1919, to silence the growing clamour for India’s independence. Protest against this Act at the call of Mahatma Gandhi, led to the massacre of Jalianwala Bagh on April 13, 1919, where several hundreds died and thousands more wounded. That incident led to a long movement of non-cooperation that ultimately brought, under Mahatma’s leadership, India’s independence.

However, to the utter misfortune for the Indian masses, like the colonial powers, the native Indian parliament too, didn’t hesitate to continue with the repressive colonial laws as mentioned above. Successive governments enacted, continued to use and reframe these draconian Acts in the name of protecting the sovereignty and integrity of the nation. To browbeat the people, the new regime, irrespective of party affiliation, did precious little to make the Indian state a truly democratic and liberal country by scrapping such laws from the country’s statute books. Instead, restrictions are put on ordinary citizens free movement, free speech, even free thinking by invoking laws like old Defence of India Act, rechristened as MISA, TADA, UAPA, AFPSA, and what not. The higher judiciary too has either didn’t declare these laws unconstitutional or kept a blind eye allowing the Executive to continue with their undemocratic ways to the utter detriment of our cherished democratic norms. Nothing can be a more bitter truth than this.

Such a state of affairs cannot and should not continue in a real democracy. The Judiciary is the only recourse for the people in distress. Here we must recall the four principles that Mahatma Gandhi gave us while leading the greatest non-violent movement against the biggest colonial power the world has ever seen: truth, non-violence, welfare of all and peaceful satyagraha. It is our ardent appeal to all concerned that they recall these lofty principles and bring these into firm focus while dealing with the protesters and satyagrahis vis-a-vis the mighty Executive. There is no other way to preserve democracy.