Concepts of democracy

1 Concepts of democracy Pritam Baruah and Uwe Volkmann 1. THEORETICAL AND PRACTICAL CHALLENGES To compare the concept of democracy in India and Europe within a wider project of understanding the relationships between democracy and diversity involves an indeterminacy risk, and a duplication risk. The indeterminacy risk is posed by the concepts of ‘comparison’ and ‘democracy’. Comparison, as is now settled, cannot be cherry-picking, and the content of democracy, admittedly, is indeterminate given the multiple ‘conceptions’ it allows.1 Careful comparison must involve cautious selection of instances of the concept to be compared. However, if the content of the concept is indeterminate, then identifying instances is challenging, making comparison additionally risky. The duplication risk arises from the widespread application of the concept of democracy. Indeed, as the chapters of this book demonstrate, democracy shows up in several contexts: federalism, electoral laws, political parties, social movements, freedom of expression, states of emergency, judicial review, or social rights. Our identifying the several instances of democracy in India and EU would then end up being a rough and thin summary of other chapters resulting in multiple duplications. What else then can a chapter on democracy add? We choose to take refuge in theory by focusing on two broad themes along which the content of democracy is traditionally organized: democracy as either an intrinsic or instrumental value. We apply this framework to analyse challenges arising from concerns that preoccupy thinking about democracy in contemporary India and the EU. In thinking of challenges, we adopt the lenses of input and output legitimacy. Input legitimacy captures concerns 1 Democracy has been classified as a ‘contested concept’, and also as an ‘interpretive concept’, both indicating broadly that its content is indeterminate in several ways. See W.B. Gallie, ‘Essentially Contested Concepts’ (1955) Proceedings of the Aristotelian Society 167; Ronald Dworkin, Justice in Robes (Universal Law Publishing 2007, Indian Reprint) 154‒58 and Ronald Dworkin, Justice for Hedgehogs (HUP 2011) 158 for accounts of what interpretive concepts are. 2 about how democratic systems of government are constituted and practiced, while output legitimacy measures the success of governments in attaining the goals of government. Scholarly literature seems to converge on admitting that India faces more severe challenges of output-legitimacy, than concerns about input-legitimacy and the deliberative quality of its governmental institutions.2 Concerns in the EU meanwhile focus on democracy-deficit, despite a relatively efficient functioning of its governmental institutions.3 Here we argue that, institutionally, the input legitimacy concerns in India are as severe as its output legitimacy concerns. On both counts Indian democracy can inform itself from the EU, particularly on how democratic structures run hollow without merit and accountability. On the other hand, the EU may learn from the Indian example how poor results in terms of output, when experienced over longer periods of time, impair the credibility of the democratic system as such and, as we also observe in a number of other formerly democratic states right now, raise a new desire for authoritarian modes of government. We begin in Section 2 below by providing a brief historical account of democracy in India and EU highlighting the different contexts in which democracy emerged. The purpose is to glean the concepts that embed democracy in the two political systems. Section 3 then continues to identify legal mechanisms through which democracy is established at both sites and the challenges that those mechanisms must face. Sections 4 and 5 then apply a lens of intrinsic and instrumental worth of democracy to evaluate the potential of democracy in meeting those challenges. In this, Section 4 focusses on democracy as community-building, while Section 5 is a sceptical look at the potential of democracy. 2. INDIA AND THE EU: CONTRASTING HISTORICAL CONTEXTS Comparing the idea of democracy in India and the European Union (EU) presents some remarkable parallels, but also some fundamental differences. The differences may result from the historical fact that independent India was crafted as a democratic polity from the outset whereas democracy in the EU came in comparatively later. Indeed, even at present, the direction towards which the Union should evolve is unclear; its finality is still an open question 2 Niraja Gopal Jayal and Pratap Bhanu Mehta, The Oxford Companion to Politics in India (OUP 2011) xii. This is not to discount the input legitimacy of India’s electoral system, federal distribution of powers, and the quality of electoral representatives. 3 Paul Craig, ‘Integration Democracy, and Legitimacy’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011) 13, at 31‒40. 3 which many of the political elite prefer not to ask,4 However, underlying this basic difference are several other contrasting contexts. Even if India was established as a constitutional democracy, its history is riddled with complex legacies of what democracy means. On the one hand are persuasive explanations of Indian democracy as a continuity of colonial practices, preserving existing social hierarchies, and consistent succumbing to majoritarian views.5 On the other, lies the undeniable democratic upsurge during the struggle for independence,6 and the increasing participation of historically marginalized communities in electoral politics.7 In contrast, European history nowadays is more or less seen as a straight-line process, an ever-progressing rise and clearance of liberal and democratic principles which, to quote the preamble of the TEU, now form an as such no longer disputable part of Europe’s ‘cultural, religious and humanist inheritance’.8 And finally [above all], the predominant narratives have almost nothing in common, the revolt against colonial rule with the call for independent statehood on the Indian and the devastations after World War II with the demand for some kind of cooperation on the European side. India and the EU were founded for different reasons, they were supposed to serve different functions, the founding myths – provided we can speak of such a thing in the case of the EU – depict different stories and transport different images of community. Hence, democracy played a completely different role in the evolvement of the two systems of governance. A fleeting glance at the history of the development of democracy acutely brings out the differences. 4 cf. Ulrich Haltern, ‘On Finality’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart/CH Beck 2011) 205. 5 Sumit Sarkar, ‘Indian Democracy: The Historical Inheritance’ in Atul Kohli (ed), The Success of India’s Democracy (CUP 2001) 23; Atul Kohli, Democracy and Development in India (OUP 2009) 4‒5, arguing that Indian Democracy’s success is explained by the twin facts of the powerful being well-served by it without a total exclusion of the weaker groups. 6 Sarkar (n 5). 7 Yogendra Yadav, ‘Understanding the Second Democratic Upsurge: Trends of Bahujan Participation in Electoral Politics in the 1990s’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 120‒45; Rajeev Bhargava, ‘Democratic Vision of a New Republic: India, 1950’ in Francine R, Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 26‒50. 8 This conforms to the traditional liberal western conceptualization of democracy. See Kohli (n 5). 4 2.A India The history of democracy in pre-independence India is broadly classified along a pragmatic and evaluative tradition. The pragmatic tradition holds that demands for representative democracy by Indians, primarily led by the Indian National Congress (INC), were gradually acceded to by the colonial government.9 Demands for representative democracy were, however, typically characterized as a response to charges of paternalism and elitism by the colonial government against the leaders of the INC.10 On the evaluative tradition, the demand for democracy was articulated in the evaluative language of equality and self-determination by leaders of the Indian Independence Movement (‘Independence Movement’). Thinking about democracy was thus a genuine call for self-rule. The two traditions may not have been mutually exclusive until the INC declared the complete independence of India to be its objective. This watershed moment marks the shift towards the evaluative tradition with democratic rule as the declared objective of the Independence Movement. But what kind of democracy did the movement imagine? Anti-colonial movements before the declaration of complete independence provide some pointers in this direction. Unlike in the case of the EU, the demand for representative democracy preceded the formation of independent India. On an optimistic reading, this pre-independence history of democracy seamlessly culminated in the adoption of the Constitution of the Republic that now guarantees the immutability of democracy as a basic constitutional feature. On sceptical readings, the chequered nature of this history presents itself as unsettling interpretive material for the content of democracy. To view it optimistically, from 1919 onwards, India witnessed several anti-colonial social movements that led to a ‘democratic upsurge’ involving high levels of politicization of the populace.11 A landmark of this upsurge was the Swarajya Resolution (Independence Resolution) adopted by the INC in 1931, following its declaration of complete independence (purna swaraj) in the Lahore Conference in 1929. Both declarations articulate the objectives of the Independence Movement. The Resolution included lists of rights and principles to be guaranteed by the government of independent India. Both procedural democracy in the form of adult suffrage, and substantive democracy, in 9 Sumit Sarkar calls this the ‘liberal-imperialist’ historiographical framework, see Sarkar (n 5) 24. 10 ibid. 11 Sarkar (n 5) 30. 5 the form of several fundamental rights, featured in the list.12 The centrality of democracy as self-rule reflected in such key articulations of the objectives of the Independence Movement led commentators to synonymize Indian nationalism and democracy.13 Historical disagreements on the nature of democracy continue to control opposing views on what democracy demands. This historical disagreement is roughly captured by the difference between M.K. Gandhi’s and Jawaharlal Nehru’s visions of a democratic India. Gandhi idealized a decentralized, bottom-up, democratic India constituted by village republics. Its defining features were greater decision-making powers at the local level, and indirect elections towards a weaker center. Gandhi’s ideal captures democracy as an inherent value given its emphasis on self-rule. In contrast, Nehru imagined a more centralized India, with direct elections, designed for rapid and planned economic development, and building a sense of nationhood. In a sense, an instrumental significance of democracy can be gleaned from Nehru’s vision. Democratic government was designed to achieve the general aims of the independent government, and thus centralization and weak bicameralism were acceptable on his view to achieve the aims of socio-economic development and building a national identity. Given the different visions of Nehru and Gandhi, constitutionalizing democracy should have proved to be a daunting task.14 Surprisingly, the Gandhian vision had few takers in the Constituent Assembly, and Nehru’s view found its way into the original design of Indian constitutional democracy. It adopted the conventional forms of western liberal democracy including bicameralism, federalism, and separation of powers. This formal constitutional design, and the preceding disagreement between Gandhi and Nehru, contrast sharply with reasons for why the EU took shape. However, the idea of economic development underlining the Nehruvian model is similar to neofunctionalist explanations of the origins of the EU.15 Though 12 The Karachi Resolution 1931, available at <https://www.constitutionofindia .net/ historical _constitutions/ karachi _resolution _ _1931 _ _1st %20January %201931> accessed 3 November 2020. 13 Bhargava (n 7) 26. 14 The specification of representative democracy during the independence movement turned out to be controversial in deciding upon ‘communal electorates’: the idea proposed by the colonial government that representatives to elected bodies will be elected according to communities. M.K. Gandhi and some leaders of Congress including Jawaharlal Nehru were opposed to the idea while leaders of communities including Muslims and Dalits favoured the idea. See Bipan Chandra et al, India’s Struggle for Independence (Penguin Random House India 2016) Chs 31‒33 (for a history of communalism in India). 15 Craig (n 3) 14ff. 6 India chose democracy as a part of the mechanism that would deliver economic development, choices such as rejecting proportional representation for the less representative First Past The Post system, a strong central government, weak upper houses of legislature, weak local government, and retaining the colonial bureaucracy, indicate a preference for a centralized, executive-led economic development.16 What appears latent in these choices is a hope for what Paul Craig calls ‘consensus of apathy’17 towards strong community-based political demands that existed at the inception of the Republic. These demands ranged from communal electoral representation on the milder side to national self-determination at the extreme. Perhaps a hope for such apathy might be reinterpreted as transformative in the Indian case where increasing apathy towards primacy of sub-Indian communal identities was desirable for the process of nation-building.18 The Nehruvain slogan of unity in diversity cherished pluralism on the cultural front, but from an institutional perspective, it reserved primacy for unity that required increasing political apathy of citizens towards their own sub-Indian political identities. As it has unfolded, the initial-design of Indian constitutional-democracy has produced low output legitimacy of state institutions in India. Growing support for privatization of public sector enterprises from the late 1970s,19 and contemporary demands for more independent, merit-based, and accountable government are indicators of this output legitimacy deficit.20 This makes for an interesting comparison to the EU, where concerns about the democratic legitimacy of the EU are ascendant despite relatively efficient 16 The executive is led by the cabinet, formed by the democratically elected political party or coalition that attains electoral majority. 17 Craig (n 3) 17. 18 We apply the term ‘sub-Indian’ to national identities at the ‘sub-state’ level with India as the state. 19 See S.K. Majumdar, ‘Public, Joint and Private Sectors in Indian Industry: Evaluating Relative Performance Differences’ (1995) 30 Economic and Political Weekly M25‒M32, arguing that public sectors units are less efficient then private ones. For scepticism of India’s liberalization that favoured privatization, see Prabhat Patnaik, ‘Economic Liberalisation and the Working Poor’ (2016) 51 Economic and Political Weekly; Prabhat Patnaik, ‘On the Politcal Economy of Economic “Liberalisation”’ (1985) 13 Social Scientist 3‒17. For a review of 25 years of economic liberalization in India see contributions to 2017 (52) Economic and Political Weekly. 20 Navroz K. Dubash, ‘New Regulatory Institutions in Infrastructure: From De-politicization to Creative Politics’ in Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017) for problems plaguing regulatory institutions. See the Introduction by Kapur, Mehta and Vaishnav in the same book for an overview of academic scepticism towards the functioning of public institutions. 7 functioning of governmental institutions. India on the other hand, presents a picture where calls for output legitimacy cohabit a space for demands for more decentralization, accountable and transparent democracy. We explore this seemingly inverse relationship between democracy and legitimacy of government in the following sections. 2.B European Union In the EU the development by and large took the reverse course. It was not the pressure for representative democracy that preceded the foundation of the Union but the foundation of the Union that in the long term generated the pressure for democracy. Characteristically, it was not ‘We the people’ that founded and up to now form the members of the EU but a group of sovereign states: six in the beginning, 12 in the times of the Maastricht Treaty, 28 today, in two years, after Brexit, maybe 27. Hence, the EU was not designed as a democratic project initially but as a means to achieve certain interstate goals: economic cooperation, from there economic prosperity, and finally to peaceful coexistence of former enemies. Or, in the famous words of the Schuman-Declaration, by many considered as the real founding document of European unification: ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity’. The driving force as well as the dominant rationale of the EU therefore can be seen in the concept of ‘spillover’ where integration in one sphere generated the pressure for integration in another sphere: economic integration was supposed to trigger legal integration, and legal integration should finally lead to political integration.21 In this scheme democracy was neither a primary issue nor a concern at all; legitimacy was conceived in terms of certain outcomes – economic prosperity, political stability and, above all, enduring peace – not in terms of democratic input. With the increase of lawmaking on the European level and the expanding role of European institutions, however, it could no longer be pretended that this mode of legitimation really suffices and meets even basic democratic requirements. The more the locus of governmental power and authority shifted to the EU, the more the ‘growing disjunction between political power and electoral accountability’ became apparent, eventually leading to a continuous debate on Europe’s democratic deficit on the one hand and enhanced efforts to reduce it on the other.22 Democratization of 21 Craig (n 3) 14. Craig (n 3) 30, with reference to Joseph H.H. Weiler, Ulrich R. Haltern and Franz C. Mayer, ‘European Democracy and its Critique’ in Jack Hayward (ed), The Crisis of Representation in Europe (Frank Cass 1995) 4; cf. Joseph H.H. Weiler, ‘European Models: Polity, People and System’ in Paul Craig and Carol Harlow (eds), Lawmaking 22 8 the EU became a permanent issue. In many ways the first direct election of the European Parliament in 1979 can be seen as the starting as well as the turning point of the discussion: Since then democracy is widely agreed upon as one of the core values not only of the internal order of the member states but also of the Union itself, and since then the process of legal institutionalization of democratic procedures rapidly gathered speed. Finally, the Treaty of Lisbon 2009 codified the democratic principle, placed it in a row with other principles like human dignity, freedom and equality, and enhanced it with a number of complementary provisions to ensure it will work out. 3. DEMOCRACY AS LEGAL FRAMEWORK: HOW DEMOCRATIC LEGITIMACY IS LEGALLY ESTABLISHED Though emerging from different historical starting points and reacting to different problems, the legal situation in India and the EU by now seems quite similar, at least in an abstract viewing. In both, democracy is guaranteed as an overall constitutional principle that keeps the insulated provisions on democratic proceedings together and informs us how these should be read. In India, this is a function of constitutional provisions for bicameral parliamentary democracy, reconstruction of this principle by the Supreme Court, the status of democracy as a basic feature of the Constitution, and political sanctity of elections.23 In contrast, in the EU the democratic principle as such is explicitly guaranteed in the treaties themselves, so in substance on a constitutional level: Article 10 TEU now states that the functioning of the Union shall be founded on representative democracy, with every citizen, as is added later, having the right to participate in its ‘democratic life’. But how then is representation concretely organized and how is democratic legitimacy supposed to be secured in each system? 3.A India From a legal perspective, democratic legitimacy in India is founded in the institutionalization of four central concepts that capture the value of self-government: electoral democracy of the bi-cameral parliamentary form,24 in the European Union (Kluwer Law International 1998) 3‒5; see also Andreas Follesdal and Simon Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 JCMS 533. 23 SR Bommai v Union of India [1994] 3 SCC 1. 24 Constitution of India 1950, Part V. 9 federalism,25 decentralization,26 and the judicial entrenchment of democracy.27 The electoral process, in theory, ensures democratic accountability through periodically held elections, while federalism and decentralization carry the legitimacy of the electoral process closer to the people. Judicial entrenchment on the other hand ties democracy to federalism and secularism and articulates the idea of democracy as self-government.28 Each of these however faces serious challenges in terms of input and output legitimacy that we discuss in Sections 4 and 5 below. 3.B European Union Due to the complex procedures of multi-level decision making in a compound of still sovereign states, the situation in the EU, once again, is somehow more complicated. According to a traditional account, the democratic legitimacy of the EU rests on two pillars also addressed in Article 10 TEU.29 One pillar originates from the EU-citizens as such which directly elect the European Parliament as ‘their’ parliamentary representation. The competences of the European Parliament, however, still lag (although they have been widened constantly over the last decades) behind common parliamentary competences as, for example, known from a traditional Westminster system: The right of initiatives rests exclusively with the European Commission, and the legislature itself is in almost equal shares divided between the Parliament and the Council of the European Union. The second pillar therefore addresses particularly the Council of the European Union and asks for the democratic accountability of that. Here, it emanates from the peoples of the member states which – using the example of parliamentary systems – elect their national parliaments which 25 The Indian constitution provides for both Federalism and Asymmetric Federalism. The 7th schedule to the Constitution divides powers between the Union and State governments; while Part XXI and the 6th Schedule are instances of asymmetric federalism. See Dann and Thiruvengadam’s chapter on ‘Federalism and democracy’ (Chapter 9 in this book). 26 Decentralisation here refers to the vertical devolution of power in multi-level governance. In India Municipalities and Corporations in urban areas, and the Panchayats in rural areas are constituents of government at the local level. Relevant constitutional provisions are Parts IX and IXA of the Constitution of India 1950. 27 SR Bommai v Union of India [1994] 3 SCC 1. 28 SR Bommai v Union of India [1994] 3 SCC 1, at para 102. 29 Sec. 2: ‘Citizens are directly represented at Union level in the European Parliament.’; Sec. 3: ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments or to their citizens.’ 10 then elect the national governments (a chancellor, a prime minister, the individual ministers); these then are represented and act in the Council. From a global or remote perspective this two-pillar-model seems not to differ much from the model of democratic legitimation as it is generally known from other federal entities such as India. But it poses several problems both on the theoretical and on the legal side. From the theoretical side they are reflected in highly contrasting attempts to grasp the core of the structure; conceptualizations range from a description of the EU as a ‘fragmented democracy’ where democratic legitimacy is procured in a kind of work-sharing mode between national and European institutions (involving also aspects of ‘governance “for the people” through effective government and “with the people” through consultation with organized interests’)30 to a model of ‘shared sovereignty’ where in the very end the individual citizens as such constitute the sole source of the EU’s legitimation (and not, like in the traditional account, the member states with their peoples as a whole).31 From the legal side the problems mainly pertain to the hierarchy between the two pillars and the normative rank of each. In federal states like Germany or even India legitimacy on the federal level is mostly seen as the work of the federal institutions, in particular of a national parliament or a national executive; bicameralism, on the other hand, is traditionally less conceived as an essential component of democracy than as an element of the separation of powers. Given the still limited powers of the European Parliament which has to share its role with the Council, things are not that simple or clear. Here the two pillars are at least of equal weight and more or less in abeyance; in the eyes of many the hierarchy between them is even reverse. According to the jurisdiction of the Federal Constitutional Court of Germany for example, the priority has to remain upon the national pillar: with intensified participation of the national parliaments, with a parliamentary right to control and in the very end to veto decisions of a higher significance on the EU level; above all, the court stipulated that in the foreseeable future sufficient space for the formation of the political will should be left to the member states.32 In this view, the strand of legitimacy running from the EU-citizens to the European Parliament only serves as a complement, in not more than an additional function. From confident Europeans this has been heavily criticized, and it is difficult to see how, on this premise, the EU will be able to cope with its actual challenges; the financial or the migration crisis, if we only look at 30 Vivien A. Schmidt, Democracy in Europe: The EU and National Polities (OUP 2006) 5. 31 Jürgen Habermas, ‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’ (2012) 32 EJIL 335, 342‒43. 32 See BVerfGE 123, 267 (356ff) – Lissabon. 11 these, both exceed the solution-finding capacities of sovereign national states and obviously require more, not less integration. Be that as it may, it is interesting to note that the respective conceptions of democratic legitimacy stand for opposite ways in dealing with diversity: compared to India, the European states with their more or less Christian background seem to be much more homogeneous at least in terms of religion or culture. But the legal framework of democracy itself seems to reflect a principled reservation against the concept of unity which in India, on the contrary, is prevalent over the unfolding of diversity. 4. DEMOCRACY AS AN INHERENT VALUE: TRYING TO MEASURE THE QUALITY OF DEMOCRATIC PROCESSES A legal-institutional viewpoint is perhaps too narrow to understand democracy. Just as other abstract concepts such as human rights, rule of law, separation of powers, federalism, or welfarism, democracy perhaps points to an underlying idea. This interpretivist and holist method follows a general notion of the Constitution itself, as articulated by Canadian Supreme Court, where a constitution is ‘more than a written text’. Instead, it ‘embraces the entire global system of rules and principles which govern the exercise of constitutional authority’, consisting of ‘underlying principles animating the whole of the constitution’ that ‘must inform our overall appreciation of the constitutional rights and obligations’.33 It is also here where the Constitution transgresses the border from a purely legal framework and instrument of government to a concept of ‘constitution as culture’ that reflects and merges with the shared convictions of a political community.34 Perhaps, there are few – if any – other principles like the democratic principle that, in this sense, carry an imagination of political unity and collective identity and open up to a symbolic dimension they cannot be divested of.35 In this case they almost inevitably include a general idea about the deeper meaning and the telos of them. 4.A Contending Concepts of Democracy In political theory, however, it is highly controversial what this idea might be and theorists often work with pairs of opposites to capture the idea of democ33 Reference re Secession of Quebec (1998), 2 S.C.R. 217 (Can.). Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology – Toward a Layered Narrative’ (2006) 4 International Journal of Constitutional Law 439, 449‒50. 35 ibid. 34 12 racy, for example realistic/idealistic, elitist/participatory, liberal/republican, statistical/partnership, input-oriented/output-oriented, weak/strong, to name a few.36 These binaries largely capture the same intuition through different perspectives: the difference is how they conceive the relationship between the individual and the political body. On individualistic and thinner conceptions, democracy appears as a mere method of decision-making, that is as a mode of governing where political decisions are legitimized by the will of an arithmetical majority. As long as there is something like an elected government there is democracy. In contrast, a more communal and thicker conception shapes democracy as a project which actually concerns everybody and in which everybody in one way or another is supposed to take part; it establishes a kind of joint venture of citizens trying to solve collective problems by some kind of collective action. This concept, of course, is more demanding and challenging; it doesn’t take democracy as given in its actual appearance or amounting to nothing more than a set of legal institutions, instead it formulates a permanent appeal to optimize it. And from here it also offers a lens or a benchmark which sheds light on or allows us to assess the quality of democracy. It is now sometimes difficult to say which of the two is actually entrenched or present in the constitutional life of a society: there might be societies which – from constitutional practice, the conduct of political actors or the judgments of a constitutional court – can be easily assigned to one of them, and there might be others where the situation is not really clear.37 And it is also difficult to decide 36 For the first see Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Routledge Classics 2010) 211ff. For elements of an elitist conception of democracy, see Max Weber’s idea of the so-called ‘Führer-Demokratie’ and parliament’s eventual implication as a place for the selection of ‘leaders’, e.g. Max Weber, ‘Die drei reinen Typen der legitimen Herrschaft’ in Johannes Winckelmann (ed), Gesammelte Aufsätze zur Wissenschaftslehre (7th edn, Mohr 1988) 475, 487‒88; ‘Der Reichspräsident’ in Johannes Winckelmann (ed), Gesammelte Politische Schriften (5th edn, Mohr 1988) 498‒501; ‘Politik als Beruf: Vortrag’ in Johannes Winckelmann (ed), Gesammelte Politische Schriften (5th edn, Mohr 1988) 505, 542‒44; for a concise overview in this regard, see Manfred G. Schmidt, Demokratietheorien: Eine Einführung (6th edn, Springer 2019) 154ff, 156ff. For the antinomy between liberal and republican democracy, Jürgen Habermas, ‘Three Normative Models of Democracy’ (1994) 1 Constellations 1. For the differentiation between statistical democracy and democracy as a partnership, see Ronald Dworkin, ‘Equality, Democracy, and Constitution: We the People in Court’ (1990) 28 Alberta Law Review 324, 337ff; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (HUP 1996) 19ff; Ronald Dworkin, ‘The Partnership Conception of Democracy’ (1998) 86 California Law Review 453. For the conception of weak and strong democracy, see Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (UC Press 1984). 37 See e.g. the jurisdiction of the German FCC can be seen as a still viable example for the communal approach, see the early definition of democracy as an order where the 13 which of them is preferable; they both have their merits and their demerits: the individualistic or formal conception fails to grasp the utopian surplus of democracy and is unable to mark undesirable developments, whereas the communal conception runs the risk of permanently overburdening the idea thus presenting an ideal which never can be achieved and only causes disillusionment and frustration. Despite facing theoretical challenges, the normative character of the communal/thicker conception makes it attractive for legal comparison, since it widens the views on the quality of democratic processes, allows the description of the relationship between norm and facts and, thereby, opens the field for the many contexts of democracy; it might also go along with a common intuition that there must be something more to democracy than just the majority principle. At least, from here we may ask how democracy in India and in the EU really perform. 4.B Freedom and Equality All substantive concepts highlight the idea of democracy as an association of free men and equals, from here potentially radiating into other spheres of society. In this context, at least two problems may be addressed for the comparison. First, the concept of freedom is rather demanding and does not exhaust itself in the formal right – or the opportunity – to vote. Instead, it has a complex structure that combines elements of private and public autonomy (or, according to the famous distinction from Isaiah Berlin, of ‘negative’ or ‘positive liberty’) and is sensitive to the level or degree to which these are effectively implemented.38 Private autonomy constitutes a sphere where citizens are free from governmental intrusion; for a substantive account of democracy, it serves as a necessary basis for the exertion of democratic rights and can, for example, be endangered by a general atmosphere of control, a high level of regulation in citizens themselves ‘shape their development by communal actions’, ‘every member of the community is a free co-shaper of the communal decisions’ and the destination is the ‘roughly equal promotion of the welfare of all citizens’, BVerfGE 5, 85 (197‒98) – KPD-Verbot. In the EU the case is more difficult since the ECJ usually does not delve into theoretical arguments, the style of its rulings being more or less that of a ‘judicial minimalism’, as described by Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (HUP 2001); for an overview, see Koen Lenaerts, ‘The Principle of Democracy in the Case Law of the European Court of Justice’ (2013) 62 ICLQ 271. 38 Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, Four Essays on Liberty (OUP 1982) 118, 121ff, 131ff; the distinction between ‘private’ and ‘public autonomy’ of citizens e.g. in Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg [tr], Polity Press 1996) Ch. 3. 14 almost any field or a strong grip on the society as a whole. Looking at public autonomy means to look at other participatory rights apart from the right to vote, like freedom of information, freedom of opinion, speech or expression, freedom of assembly, of the press, the media etc.; the question then is, how these rights are actually guaranteed (or instead threatened, obstructed, sanctioned etc.) and whether they really work in terms of ‘voice’.39 Secondly, from the side of democratic equality, substantive accounts regard the principle of ‘one man, one vote’ not only as an integral – and as such indispensable – part of the electoral process but also as a yardstick to compare the political participation and influence of citizens; thus, access barriers to the political process due to economic disparity, social segregation and different levels of education etc. may come into view. 4.B.1 India If democracy were understood as the ability to self-determine through political processes, then India faces a severe input legitimacy problem in terms of guaranteeing freedom and equality. By input legitimacy, we refer to the deficient architecture and composition of institutions that we pointed out in Section 3 as legally establishing democracy. India’s parliamentary democracy is an exemplar of such institutional democracy-deficiency. In Indian bicameralism, both at the Union and State levels, popularly elected lower houses have real legislative powers, with the upper houses being toothless.40 Lower houses are constituted by direct elections on the basis of first past the post system (FPTP) along with the principle of ‘one person one vote’. The FPTP is perhaps the greatest hurdle in achieving democracy as self-rule in India. Settled scholarly opinion has it that none of the elected governments in India have ever won more than 49.1 per cent of the vote.41 Indeed the system is majoritarian, denies representation to political minorities, represents the population disproportionately, and encourages prioritizing the interests of political parties over that of the electorate.42 The system is also particularly susceptible to capture by pow- 39 In the sense of Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (HUP 1970) 3ff, 15ff, 30ff, 106ff. 40 Pritam Baruah and Nicolas M Rouleau, ‘Democracy, Representation and Self Rule in the Indian Constitution’ (2011) 44 Verfassung und Recht in Übersee 177, at 192‒94. 41 Vote share of the Indian National Congress in the 1984 General Elections to the Lok Sabha. See Election Commission of India, ‘Statistical Report on General Elections, 1984 to The Eight Lok Sabha’, vol I (National and State Abstracts and Detailed Results) at 76, available at <https://eci.gov.in/files/file/4118-general-election-1984-vol-i-ii/> accessed 21 October 2020. 42 See B. Narsing Rao in B. ShivaRao (ed), India’s Constitution in the Making (1st edn, Orient Longmans 1960) 289‒92; Sudama Singh, ‘Representation in Modern 15 erful economic elites.43 As an instance of single member district representation, the Indian system additionally suffers from the problem of neglecting minorities. If legitimate under some concept of democracy, then India’s electoral democracy perhaps qualifies under a thin concept of democracy where democratic credibility is not assessed on the realization of substantive rights and values.44 Even this thin concept of electoral democracy sustains itself on free and fair elections overseen by the Election Commission of India, which is intended to be an independent constitutional body modelled on expertise rather than democratic legitimacy.45 The deficient input legitimacy of democratic institutions in India not only presents problems of effective representation, but perhaps explains the contrasting contexts of democratic participation in India. Though there has been an upsurge in the participation in electoral processes by traditionally backward communities, this does not easily satisfy the bar of participation as a justification for democracy.46 Participatory justifications for democracy typically fall back on values such as self-rule and liberty to articulate the value of participation.47 The quality of participation then would depend on the nature of democratic processes citizens were participating in. If the processes captured values such as self-rule and liberty, then they would count towards more democracy. On this front, Indian democracy may not fare well given the FPTP system, and the imbalances in the federal distribution of power and bicameralism. High voter turnouts, even of marginalized groups, might then reflect pathological, rather than ideal conditions for celebrating them, as the turnouts are for participation in democracy-deficient institutions and processes. A similar picture emerges in the context of participation through political parties, which are the primary instrument for conducting electoral politics. As Democracies: Theoretical and Practical Perspectives’ (1991) IJPS 508; T.M. Joseph, ‘Mixed Proportional System as an Alternative to the Indian Electoral System’ (2008) IJPS 183, 184; Arun Kaushik and Rupayan Pal, ‘How Representative has Lok Sabha Been?’ (2012) EPW 74. 43 Devesh Kapur and Milan Vaishnav (eds), Costs of Democracy: Political Finance in India (OUP 2018) 5. 44 See Dworkin (n 1) 382‒87 and Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (HUP 2002) Ch. 10. 45 We discuss the strengths of a meritocratic system in Section 5 below. Our suggestion is that meritocratic feature of government capture values that count towards a more substantive conception of democracy. 46 Alfred Stepan, Juan J. Linz and Yogendra Yadav, Crafting State Nations: India and Other Multinational Democracies (JHU Press 2011) Ch. 2. 47 Carol C. Gould, Rethinking Democracy: Freedom and Social Cooperation in Politics, Economy, and Society (CUP 1988). 16 much as scholarly opinion agrees in the need for reforms on this front, such as inner-party democracy and transparency in political funding, successive elected governments have failed to bring about such reforms. Indeed, electoral finance and the role of money in elections have been an albatross hanging around legitimacy of elections in India. 48 As Kapur and Vaishnav note, ‘deep distortions in electoral finance … can undermine democracy itself’.49 If the focus of measuring democracy in terms of freedom and equality shifts from a thin one directed at representative processes and institutions, towards a thick one where democracy is measured as a protection of substantive rights and values, then India perhaps fares better institutionally. However, that success may not be immediately credited to the success of democracy. Protection of rights and vindication of values is increasingly attributed to institutions capturing constitutionalism rather than democracy. Constitutional courts, constitutional rights, affirmative action and asymmetric federalism have been the focal points of such developments. Debates over Public Interest Litigation in socio-economic rights and affirmative action are perhaps the best evidence of this development.50 The institutional protagonists in these debates are constitutional courts, with legislatures primarily responding to court decisions. Normative standards involved here are constitutional rights, with legislative action responding to court decisions over constitutional rights.51 The thick-thin binary of democracy captures the meritocratic-democratic binary highlighted previously. Institutions that are not democratic, at least electorally, curiously capture virtues of a thick concept of democracy. Expertise-based institutions such as courts, the election-commission and independent regulators have gradually occupied the space that democratic institutions should ideally occupy. 4.B.2 European Union In the EU, in contrast, civil liberties and participatory rights are not only legally guaranteed but in fact widely respected, especially on the Union level itself. However, there are recently (and confined to some member states like Hungary and Poland) a number of restrictions on public opinion using, for example, extensive media legislation (prompting an immediate, though maybe not entirely satisfactory reaction from the European Commission and 48 Kapur and Vaishnav (eds) (n 43) 14. ibid. 50 See B.N. Kirpal et al (ed), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP 2000) (for accounts of judicial intervention for protection of rights). See Anuj Bhuwania, Courting the People (CUP 2017) (for criticism of the courts interventions through Public Interest Litigation). 51 Rights to education, food, and information are landmark examples. 49 17 some critique from other member states). Quite another question, however, is whether the exertion of public autonomy according to the promise of Article 10 TEU and by using the channels provided really has a measurable impact on political decisions at the EU-level; we will come back to that in the next chapter.52 More important for the comparison at hand may be the fact that the principle of democratic equality is not fully realized in European politics, and not even in the formal sense of equal balloting. Representation in both the European Council and the European Parliament is instead based on a principle of disproportionate electoral weight, with binding thresholds of minimum and maximum representation for member states, which in effect both favour the citizens of the smaller countries. It is exactly this point that, above all, the German FCC has often marked as one of the Union’s supposed democratic deficiencies.53 From the Indian example, however, it may be learned that such breaches of the principle of equal representation are something federal entities typically have to deal with; the disproportions caused by the necessities of state representation on the federal level in India are much more severe than in the EU, but nobody seems to have a problem with it. From a substantive account of democracy, there is a more serious concern with regard to democratic equality, namely the privileged access of economic pressure groups to the Union’s institutions, in particular to the European Commission, which has often been deplored.54 This is one of the problems the EU still has to work on as it might also affect its democratic credibility. 4.C Quality of the Democratic Process and Degree of Responsiveness The basic idea in any thick conception of democracy, however, is the idea that democracy is a value in itself, essentially linked with a notion of the good life within a political community. In his landmark decision on the ban of the communist party in the 1950s the German Federal Constitutional Court accordingly described it as an order where the citizens themselves ‘shape their development by communal actions’, ‘every member of the community is a free co-shaper of the communal decisions’, and the common goal is the ‘roughly equal promotion of the welfare of all citizens’.55 Democracy then, as was added later, ‘not only means respecting formal principles of organization 52 See Art. 10 Sec. 3 TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ 53 BVerfGE 123, 267 (377-80) – Lissabon. 54 See David Coen and Jeremy Richardson (eds), Lobbying the European Union: Institutions, Actors, and Issues (OUP 2009). 55 BVerfGE 5, 85 (197-98) – KPD-Verbot. 18 (…) and not just a cooperative involvement of interest groups’; instead, it ‘first and foremost lives on, and in, a viable public opinion that concentrates on central acts of determination of political direction’. For a constitutional court which, at its ground, is still a court (that is, an organ which has to apply law) this is a remarkable bow to democratic theory that eventually even opens up to the various conceptions of deliberative democracy.56 These typically identify ‘public reasons’ as reasons that should count in a continuing process of deliberation of citizens. On such views, decisions would be justified if they satisfied the condition of public justification.57 Simply put, public reasons should be acceptable to most citizens as free and equal participants in deliberation. Of course, it is easy to see that this notion is highly idealistic, if not utopian; any existing democracy can only fail in trying to comply with it. But it points to the core elements in any substantive conception: First, substantive conceptions are interested in the level, the intensity, and the quality of democratic interaction between political actors (parliaments, governments, administration) and the citizens (individuals, media, public etc.). Secondly, they ask for the ‘responsiveness’ of the political body: Do the citizens see their interests, opinions and convictions mirrored in their representatives’ decisions and actions – and is there a measurable connection between the will of the citizens as it is articulated in democratic interaction, and the policies that are formed and implemented by a certain government?58 4.C.1 India Free and equal participation in reasoned deliberation is a pre-requisite to evaluate democracy in terms of deliberative quality based on public reasons.59 The performance of Indian institutions on this front would vary depending on the unit of analysis. At the Union and State levels of government, their performance would be modest at best. Lack of quality deliberation in lower houses of elected legislatures is an issue that has generated considerable debate in India.60 Instances of voting without deliberation and bypassing deliberation 56 BVerfGE 123, 267 (358) – Lissabon. Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’ in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) 17. 58 For the idea of responsiveness see Hanna F. Pitkin, The Concept of Representation (UC Press 1972) 232‒35. 59 Cohen (n 57). 60 Dhruva Gandhi and Unnati Ghia, ‘The Erosion of Deliberative Democracy in India’ (2019) Socio-Legal Review, available at <https://www.sociolegalreview .com/post/the-erosion-of-deliberative-democracy-in-india> accessed 21 October 2020 (for recent egregious instances of legislation without deliberation). For reportage on how the Union Parliament has been unusually productive at the cost of deliberation see Prakhar Singh, ‘A closer look at the Lok Sabha’s productivity’ The Telegraph 57 19 by promulgating Presidential Ordinances are common.61 This counts towards poor deliberative quality of democratically elected institutions as deliberation is always in the shadow of votes. Voting outcomes, rather than deliberative means appear to preoccupy political parties. The low appetite for deliberation might be explained by uncompromising political stands, or self-interested motives of political actors. However, it also betrays the meagre institutional incentives and safeguards that foster deliberative quality at the Union and State levels. A spinoff of democracy-deficient representative institutions is that they are less responsive to public concerns. For example, persistent and critical issues such as corruption and police reforms have not received legislative resolution despite decades of social movements. There are few social movements, such as the Right to Information movement, that have secured legislative action. Movements often have to be long drawn out before gaining legislative attention, without guarantee of success. For example, at present key features of the Right to Information are being watered down by legislative action amid much controversy. Another social movement that found legislative fruition is the right to education, but this too was mediated by constitutional litigation ultimately yielding legislative action. The sheer mass of issues that legislatures ignore, avoid, or keep in limbo for electoral reasons reminds one of Socrates’ charge that democracy incentivizes expertise only in vote gathering.62 His charge would hold true for much of indirect representative democracy in India, which can squarely be attributed to the democracy-deficient institutional arrangements that incentivize vote-gathering through pathological processes. (3 September 2019), available at <https://www.telegraphindia.com/opinion/a-closer -look-at-the-lok-sabha-s-productivity/cid/1702110> accessed 21 October 2020. On failure of State Assemblies to meet regularly see Nidhi Tambi, ‘Data Tells Us India’s State Assemblies are Simply Not Working’ The Wire (7 March 2018), available at <https://thewire.in/government/whats-not-right-with-our-state-assemblies> accessed 21 October 2020. For problems of the legislative logjams see M.R. Madhavan, ‘Monsoon Session of Parliament Cannot Stall Like Budget Session Did; legislature desperately needs reform’ Firstpost (17 July 2018), available at <https://www.firstpost .com/india/monsoon-session-of-parliament-2018-cant-stall-like-budget-session-2018 -did-legislature-desperately-needs-reform-4433403.html> accessed 21 October 2020. 61 Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (CUP 2014). 62 An example is the issue of building a Ram Temple in Ayodhya that the currently ruling Bharatiya Janata Party (BJP) agitated without resolution since the 1990s despite being in power twice during the National Democratic Alliance governments. The issue was finally adjudicated by the Supreme Court of India through its decision in M Siddiq (D) Thr Lrs v Mahant Suresh Das and Ors Civil Appeal Nos 10866‒10867 of 2010, decided on 9 November 2019. A review petition against this decision is currently pending in the Supreme Court. 20 One might of course object to this conclusion by invoking other similar systems such as in the UK that witnesses astounding democracy-scepticism due to Brexit and the Scottish Referendum. Indeed, what this might suggest is that democracy-deficient systems such as India and the UK perform poorly in the face of strong social, political, and moral disagreement. This has a bearing on the potential of at least such democracy-deficient institutions in promoting social harmony. We discuss this aspect in the following Section. A silver lining for democracy appears at the level of local government in India, where the pathologies of the Union and State level about deliberation and responsiveness are perhaps less. Local government takes representative democracy closer to direct democracy. For instance, Gram Sabhas are assemblies of voters held periodically in Panchayats where voters have an opportunity to deliberate matters of importance to them.63 The promise of bringing such decentralized democracy to realize self-rule at the state level rewarded the present Aam Aadmi Party (AAP) with a landslide majority in the elections in Delhi. Their promise was a shift to representative systems where stakeholders in issues were the rationale for decision-making authority.64 Elements of transparency and direct accountability of officials too were a part of their manifesto. A move towards more decentralized, transparent, accountable and rationalized decision-making can cure the democracy-deficit of India’s constitutional democracy. Whether that would deliver the goods of government is quite another matter, even though such goods are often characterized as elements of substantive democracy. 4.C.2 European Union In the EU, it is precisely the quality of the democratic process which the ongoing debate on its democratic deficit first and foremost revolves around. While many influential critics admit that the Union may have reached a, by and large, sufficient level of democratic accountability from a formal point of view, they deny that it is filled with enough democratic substance yet. Their main argument over the last two decades has been the absence of a public sphere of the political: democracy, they insist, is not only brought about by the existence of electable state organs alone but by the manifold mediatory structures like parties, associations, movements and communication media that interconnect the people with their representatives and account for the responsiveness of the political system. Largely lacking all these makes the EU 63 Mohanty, Mathew et al, Grassroots Democracy in India and China: The Right to Participate (Sage Publications 2015) Chs 7, 8, 9 and 15 (for functioning of local governments across select states in India). 64 AAP Manifesto, available at <https://aamaadmiparty.org/delhi-government-2/ aap-manifesto-2015/> accessed 21 October 2020. 21 ‘fall far short not just of ideal conceptions of a model democracy but even of the already deficient situation in Member States’.65 As to that, however, even the critics may concede that the situation has greatly improved over the last years, ironically as a result of the many serious crises the EU had – and still has – to go through. The financial crisis, the euro crisis, finally the migration crisis and the turbulence surrounding Brexit: whatever damage they have caused elsewhere (particularly in terms of trust in political institutions), they have at least made European politics and the future of the European project an issue that is widely debated almost all over Europe. The downside, of course, is the fact that the fate of the Union itself is at stake in these debates; we will have to come back to that. Besides, the way these crises have been dealt with shifted power considerably away from parliaments, be it the national parliaments or the European Parliament, and toward the executive branch, primarily member state governments and, to a lesser degree, the European Commission. Thus, it added to Europe’s supposed democratic deficit from the institutional side. And the critique strikes a point in insisting on the necessity – and the actual shortcomings – of a genuine European arena of the political, that is on the necessity of genuine democratic interaction between the citizens of the EU as such and their political body. In most contexts, it is still the member states which constitute the primary locus of political discourse. The scant perception of the European Parliament by the public – despite the continuous increase of its formal competencies over the past 40 or 50 years – may serve as a pars pro toto: voter turnouts are considerably lower here than at national elections and marked by a continued decline (from 61.99 per cent in 1979, the first direct election, down to 50.55 per cent in 2019)66 and the electoral process itself is far from anything like the national event it, up to today, seems to be in India, where almost anybody takes a genuine interest in it.67 In contrast, European Citizens do not really care about their parliament’s activities; a rather large majority of them hardly knows who is present in it, what the majority situation is or what it is actually dealing with. And when Europe is present in political debates on the national scale, it is often not more than a faraway scheme that is used to mobilize nationalist sentiments as well 65 Dieter Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282, 292ff. 66 With the absolute low in 2014 (42.61 per cent). The turnout by year of the European parliamentary elections is accessible via <https://election-results.eu/turnout/ > accessed 21 October 2020. Figures, of course, vary from member state to member state, being significantly higher in countries where voting is compulsory. 67 As an example of an older study, see Jean Blondel, Richard Sinnott and Palle Svensson, People and Parliament in the European Union: Participation, Democracy, and Legitimacy (Clarendon Press 1998). 22 as a more or less cosmopolitan attitude and vague sympathies for very abstract ideas (peace, cooperation, solidarity etc.). The General Data Protection Regulation from 2018, for example, probably one of the most important regulatory acts of the EU in the recent past, apparently took most Europeans by surprise when it entered into force eventually; it had been negotiated for a long time between the European Parliament, the Commission and various lobby groups, but it seems as if hardly anyone had noticed it. It may well be discussed though, whether this mild disinterest for what is going on in the EU has really led to a massive problem of responsiveness or political legitimacy as such. For a long time, the majority of European citizens seemed to be quite content with the results of European politics in their day-to-day routines (whatever the results may have consisted of), and the organs of the Union are up to now very keen to meet their assumed expectations in almost any policy field, from projects of regional funding to the highly appreciated cheapening of roaming costs. But it is still an open question whether political passivity or disinterest is a reliable source for trust and democratic legitimacy in the long run, or at least a more reliable one than active political participation. 4.D Political Integration or Community Building Finally, in most substantive concepts – be it modern republicanism, or be it the idea of deliberative democracy – democracy is supposed to create a ‘sense of belonging’ and to contribute to the imagination of the political community.68 According to this idea, it is the specific potential of democracy not only to make citizens recognize each other as free men and equals but to involve them in some form of – though often confrontational – cooperation. Entering into democratic activities thus allows them to regard themselves as part of a collective project, no matter what their own individual interests are or which conception of the good life they pursue as private persons. The political process, then, is seen as the ‘reflective form’ of an at least basal communal life that on the other hand it is supposed to bring forth.69 This does not mean to insist on a necessary or automatic connection between democracy and communal life, in the sense that wherever there are democratic processes, there evolves the respective sense of belonging. Instead, it only asserts a claim democracy can, of course, fail to meet. Also, it should be evident that even from a substantive account democracy is not the only means of creating such a sense. Instead, the 68 See Philip Selznick, ‘The Idea of a Communitarian Morality’ (1987) 75 California Law Review 445, 454ff for the ‘sense of belonging’. 69 cf. Habermas (n 36) 1. 23 idea is open for other sources of community or nation building, like preexisting ethnic, religious or cultural commonalities which, when at hand, might ease the task for democracy in return. But especially for a contextual comparison between India and the EU, it might be interesting to see whether and to what extent the idea works when these commonalities cannot be presupposed and the main task, on the contrary, is to overcome growing diversity. 4.D.1 India Indian constitution-makers adopted various strategies to keep diverse communities together at the time of independence: bicameralism, the electoral system, federalism, asymmetric federalism, minority rights, and affirmative action. Scholars argue that even the Directive Principles were instruments to appease political dissenters.70 Whether they have translated into creating a sense of belonging is an open question, and so is the question of whether all of these are instruments of democracy. At least electoral democracy cannot be understood to have created a sense of belonging in India. Interestingly, a paradox is again at different levels of government. Arguably, at the Union and State levels, democratic processes may create a sense of belonging as citizens see themselves as part of a common project. That, however, may not be the only possibility when elections are involved. The electoral arrangements mentioned in Section 4.B.1 have gradually led to a sense of alienation for some states from mainstream Indian politics.71 Continuing hate mongering by political parties for electoral gain indicates that electoral democracy incentivizes communal disharmony. Despite having electoral democracy at the Union and State levels, political parties increasingly rely on diverse identities to practice exclusionary politics for electoral gains.72 Indeed, India presents a case where representative electoral democracy has capacity for both communal harmony and disharmony.73 70 Tarunabh Khaitan, ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters’ (2018) 16 International Journal of Constitutional Law 389. 71 For example, in the 2014 General Elections the AIADMK party won 37 out of 39 seats in Tamil Nadu, and the AITC party won 34 out of 42 seats in West Bengal. Both these regional parties had no say in the Union government that was formed as the ruling BJP had won an absolute majority in Parliament through seats in other states. 72 Political parties have won elections on the basis of exclusionary identity-based social movements in several states, e.g. the Assam Movement, the Hill State Movement (Khasi Hills, Meghalaya), the Bodoland Movement that gained the Bodoland Territorial Council, and the Shiv Sena’s Marathi Manoos Movement against people from select north Indian states. 73 Paul R. Brass, The Production of Hindu-Muslim Violence in Contemporary India (University of Washington Press 2003); Sriya Iyer and Anand Srivastava, ‘Religious Riots and Religious Politics in India’ (2018) 131 Journal of Development Economics 24 At the level of local government however, democratic practices have arguably led to a sense of community amongst citizens.74 This might lead to two conclusions: either the democratic practices at the Union and State Level are not democratic in the true sense (what the true sense is demands examination); or electoral democracy actually leads to competition that fosters communal disharmony. If the latter is true, then participatory/deliberative democracy and electoral democracy need to be reconciled in India. Alternatively, participatory and deliberative democracy needs to replace competitive electoral democracy. To invoke the thick-thin/meritocratic-democratic binary again, key issues of moral and political disagreement in India are increasingly agitated before courts. In cases such as the Ram Janam Bhoomi-Babri Masjid dispute,75 communal hate crimes,76 temple entry,77 sexual orientation,78 right to privacy79 and personal laws,80 courts have emerged as the preferred institution to articulate common terms of coexistence when faced with disagreement. Democratically elected governments have often been on the losing side in such cases, e.g. in temple entry, right to privacy, and criminalization of homosexuality. This does present a serious case for thinking that Indian Constitutionalism acts as the primary articulator of a common constitutional identity for Indians. Courts rather than democratic parliaments have been contemporary sites of generating such agreement. In the present crisis over temple entry rights of women in Kerala the Supreme Court’s decision attempts to generate agreement over women’s rights on constitutional foundations. Prominent democratically elected political parties have meanwhile appealed to religious sentiments to deny temple entry rights to women. Unless one adopted a generous theory of democracy that includes judicial entrenching of constitutionalism as democratic, democracy appears to be faring poorly in generating a sense of belonging for Indians. 4.D.2 European Union Looking at the EU from this angle, it seems evident why democracy, especially among fervent Europeans, has gained so much attention and attracted so many 104 (for data establishing causal relationship between riots and increase in vote share of the Bharatiya Janata Party). 74 Successive victories of the Aam Aadmi Party in Delhi state elections on a decentralization agenda might count towards this claim. 75 M Siddiq (D) Thr Lrs v Mahant Suresh Das and Ors (n 62). 76 Tehseen S Poonawalla v Union of India and Ors [2018] 9 SCC 501. 77 Indian Young Lawyers Association and Ors v State of Kerala and Ors (2018) SCC OnLine SC 1690. 78 Navtej Singh Johar v Union of India [2018] 10 SCC 1. 79 KS Puttaswamy v Union of India [2017] 10 SCC 1. 80 Shayara Bano v Union of India and Ors [2017] 9 SCC 1. 25 hopes. Democratic participation was supposed to fill the emotional gap mere economic cooperation, a mainly administrative mode of governing and the shortcomings of a dispassionate functionalism have left. Thus, democratic institutions were guaranteed on a legal basis, the status of a European citizenship was introduced, people were given the right to vote for municipalities in other European countries, the competences of the European Parliament have been constantly widened etc. etc. In enabling people to act as European citizens, one hoped they would regard themselves as European citizens someday. In doing so, the legal institutions were somehow regarded as empty shells, which – once established – almost automatically would be filled with democratic and communal life. It is difficult to assess whether this concept has actually worked out or not. To a certain extent it may have: According to the latest ‘Eurobarometer’ statistics, a majority of close to three-quarters is not only still attached to the European project in general but feels a sense of European citizenship, including 34 per cent who say they ‘definitely’ feel like citizens of the EU. Moreover, despite the recent crises – or because of them? – figures do not seem to have gone down over the years.81 However, it remains unclear how much of that can be ascribed or is due to democratic participation in particular. When asked about the achievements of the EU, most of the respondents consequently pointed out others, like the free movement of people, goods and services (60 per cent), peace among the member states (54 per cent) or, lagging some way behind, student exchange programmes such as Erasmus (26 per cent) and, notably, the euro (24 per cent).82 Looking back at the level of intensity of democratic interaction, it seems doubtful whether democratic procedures, with citizens taking an active part in it, have significantly contributed to the identification with European institutions, let alone to the creation of a genuine European citizenry: as shown above, political discourse in Europe is largely centred around national topics on a national scale, and the European Parliament particularly suffers from the lack of interest the ordinary European citizen takes in it. At least partly this may be due to the fact that the election itself is organized as a bundle of national elections with each member state applying its own voting system. Accordingly, it is not the European political parties the voters have on their ballot (these in fact being more umbrella organizations of national parties than parties in the full sense of the word) but the well-known parties 81 European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39; see also Standard Eurobarometer 91/Spring 2019, First results: Public opinion in the European Union, 16. 82 European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 18. 26 from their own political system, and the campaigning is – or at least was in the past – more often dominated by national than by specifically European issues. Can then, one day, the rise of a European political public processing questions of real European politics at least partly make up for these constructional imbalances? Especially convinced Europeans often set all their hopes on a stronger politicization of the European institutions, trying to shift the actual mode of governance from the unpolitical mode of problem-solving to a mode that reformulates administrative problems as political questions, that is, as conflicts of interests along political cleavages.83 Creating sympathy or even a new enthusiasm for the European project can, according to this view, only be achieved by resolutely democratizing it. But whatever the hopes of politicizing the EU may have been, at the moment the dominant, if not the only, result seems to be the rise of populist movements with a distinct anti-European agenda in almost all European countries: this is the pivotal political conflict the Union is actually facing. Whether these movements, like in the latest elections in France, can be defeated in the long run remains open to doubt. Looking at the figures from the other side, it can well be considered as an alarm signal that while two thirds of the Europeans citizens regard themselves as such, almost three out of ten explicitly declare that they do not.84 Even in fragile nation states like Belgium or Spain with their internal tensions, the share is considerably lower. As to Europe, Brexit in particular has brought forward a renewed sensitivity to the vulnerability of the European project in itself, and whether it, someday, can be redeemed by democracy is still an open question. This marks a fundamental difference to the handling of similarly deep crises in India as well as in most other common nation states: these crises might threaten trust in political leadership or even democratic legitimacy, but they hardly ever threaten the existence of India as a whole or of the respective polity as such. In the EU, however, every crisis poses a potential threat to its very existence because their opponents can always present a clear alternative, namely the return to national sovereignty85 83 See Damian Chalmers, Markus Jachtenfuchs and Christian Joerges (eds), The End of the Eurocrats’ Dream: Adjusting to European Diversity (CUP 2016). For a theoretical background see Chantal Mouffe, On the Political (Routledge 2005). 84 See the figures from Standard Eurobarometer, Spring 88/2016, Report European Citizenship, 14, to European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39, and Standard Eurobarometer 91/Spring 2019, First Results: Public opinion in the European Union, 16. It is noteworthy, on the other hand, that the sense of European citizenship has gradually increased over the years, reaching its highest level in 2019 with 73 per cent of the respondents, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39. 85 I take up a thought of Michaela Hailbronner, ‘Beyond Legitimacy: Europe’s Crisis of Constitutional Democracy’ in Mark A Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018) 277, 292. 27 5. DEMOCRACY AS AN INSTRUMENTAL VALUE: HOW DEMOCRACY CONTRIBUTES TO EFFECTIVE GOVERNING AND OTHER POLITICAL GOALS As indicated earlier, all thicker conceptions of democracy face the charge of overburdening the concept and being a gloss over other more specific values. A thinner conception may provide an alternative, where democratic legitimacy is only one component of the legitimacy of government. On such conceptions, democratic states can be compared on their performance in terms of output legitimacy. Democracy, then, is not only seen as an inherent but also as an instrumental value where the evaluation of democratic institutions includes the outcomes they produce.86 Instrumentalist concepts of democracy can stipulate input legitimacy conditions too, for example by recommending expertise and integrity as superior justifications than consent for institutional membership.87 Here we restrict our comparison to outcomes alone. The idea itself traces back to Abraham Lincoln’s famous definition of the American political system as ‘government of the people, by the people, for the people’,88 ‘for the people’ standing in this list primarily for governing effectiveness.89 From here, namely German political theorist Fritz Scharpf inferred that democracy can gain its legitimacy not only from the ‘input’ side (consisting of the citizens’ demands and their participation in the political process) but from its ‘output’ as well (relating to the ability of the democratic institutions to solve actual problems).90 Applying this concept to the EU in later publications, Scharpf in fact went one step further and argued that its legitimacy can almost exclusively be grasped in terms of output legitimacy as structures of input legitimacy, as he saw it, are up to today either lacking or at least highly deficient.91 As effective governing, however, may also be provided by a benevolent authoritarian or even a dictatorial government, there is still reason to doubt 86 See the contributions of Richard J. Arneson, Ronald Dworkin and Jon Elster in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) for key arguments for instrumental theories of democracy. 87 Richard J. Arneson, ‘Democratic Rights at the National Level’ in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) 95. 88 Abraham Lincoln, Address at Gettysburg, Pennsylvania (19 November 1863) in Ted Widmer (ed), American Speeches: Political Oratory from the Revolution to the Civil War (Library of America 2006) 732. 89 Vivien A. Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and “Throughput”’ (2013) 61 Political Studies 2, 4. 90 Fritz W. Scharpf, Demokratietheorie zwischen Utopie und Anpassung (Scriptor 1970). 91 Fritz W. Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999). 28 whether there the idea of democracy can be linked to any notion of output legitimacy at all. Many influential political theorists deny that.92 On the other hand, it should be clear that failures or malfunctions in this respect at least can harm the reputation and credibility – and thus the legitimacy – of democratic institutions: A democracy that does not ‘deliver’ will soon lose its acceptance among the people. This makes, among others, output legitimacy a useful tool for analysing and comparing the quality of democracies. 5.A India Contemporary India, in this respect, presents a picture of a crisis of state institutions including those that embody democracy.93 The meritocratic-democratic binary employed earlier in this chapter captures the increasing scepticism about the ability of democratically elected governments to efficiently deliver outcomes. It is however intriguing that such scepticism is not mirrored in electoral participation.94 In that sense a conventional idea of post-democracy does not clearly emerge in India. Apart from poor legislative outcomes discussed earlier, India’s executive institutions controlled by democratically elected politicians also exemplify deficient output legitimacy. For example, despite official reports recognizing undue control of the police by the executive for political interests,95 pressing police reforms have not been prioritized by successive governments. At present, premier investigative agencies like the Central Bureau of Intelligence have been mired with controversies of political interference by democratically elected government. The Indian Civil Services claimed to be the bastion of merit within the Indian government suffer from longstanding accusations of political control and unnecessary bureaucratization. The lack of specialization of its cadre has been a talking point but has never received attention from elected governments. Even unelected judicial 92 More or less all the proponents of a participatory or ‘strong’ democracy, see e.g. Habermas (n 38) Ch. 3; Barber (n 36), who do not even mention it. 93 Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017). 94 Stepan, Linz and Yadav (n 46) (for data on electoral participation in India); Pierre Rossanvallon, Counter-Democracy: Politics in an Age of Distrust (CUP 2008) (for the contrasting claim that such scepticism affects electoral participation). 95 Department of Administrative Reforms and Public Grievances, Second Administrative Reforms Commission, 5th Report: Public Order, 2007, available at <https://darpg.gov.in/arc-reports> accessed 21 October 2020; see R.K. Raghavan‚ ‘The India Police: expectations of a democratic polity’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 288 for an overview of issues facing the Indian police. 29 institutions face crises including pendency of cases, lack of judicial infrastructure, and allegations of corruption and nepotism in judicial appointments. The government’s response has been a typically unthoughtful one shifting the spotlight to judicial independence from executive control rather than the issues plaguing the judiciary.96 Apart from the crisis of intuitions, it is widely recognized that India has fared poorly in delivering so called ‘substantive democracy’. As Zoya Hassan’s puts it, India faces a contradiction where ‘an inclusive polity has so far not made for an equal and democratic society’.97 Widening inequality, poor HDI indicators, child malnutrition, a dilapidating public health system, farmers’ suicides, the plight of undertrials, encounter killings, poor standards of education, and domestic deployment of armed forces are part of a long list that convinces academic opinion that India fares poorly in securing substantive democracy.98 The overwhelming evidence of democratically elected governments being paradoxically illegitimate on outcome-based evaluations demands an account of legitimacy of governments that is not monopolized by electoral democracy. It is in this respect that Indian and EU democracy perhaps have an inverse relation. 5.B European Union Indeed, the EU at least in the past did not particularly suffer from a crisis of output-legitimacy – quite on the contrary, its history in this respect has been for a long time recounted as a success story only. Laying the ground for a long-lasting period of peace to a continent formerly ridden by two World Wars, establishing a new platform for close political cooperation between otherwise rivalling nation states, setting the framework for a level of prosperity that it is still envied for in many other parts of the world, abolishing frontiers und bringing together people from different countries: all this, and a lot more of this kind, provided the Union with a general acceptance it could, by its nature and its historical development, hardly have gained by democratic participation of its citizens. And as to day-to-day politics and practical questions, even the critics should admit, that its organs are doing a comparatively good 96 Supreme Court Advocate-on-Record Association and another v Union of India [2016] 5 SCC 1, where the supreme court invalidated the Parliament’s attempt at establishing a National Judicial Appointments Commission. 97 Zoya Hasan, ‘Representation and Redistribution: the new lower caste politics of north India’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 146. 98 Jayal and Mehta (n 2). 30 job: serious, dedicate and problem oriented. The abovementioned General Data Protection Regulation, for example, may have its many downsides and demerits, but it is still a remarkable step in the Sisyphus-like struggle for some remaining spheres of privacy in a digitalized and globalized world. So it may not be by accident that the concept of output-legitimacy was first shaped in an EU context and is up until today a standard argument not only for the general, but also for the democratic justification of the EU itself: it seems as if tailored to it, and it could also make up for the many admitted deficiencies on the input side. However, over the last years, with the euro and the migration crisis still pressing, the picture even here has apparently darkened. Despite a far-reaching restructuring of the institutional architecture and the, legally at least, questionable extensive bond-buying programmes of the European Central Bank, the euro crisis is still not solved and has created a new divide between North and South, between the richer and more powerful member states and the smaller and poorer ones.99 The migration crisis, on the other hand, has revealed a fundamental lack of solidarity among the member states and is still waiting for an adequate European response. In addition, bureaucracy and over-bureaucratization have become a permanent issue and a standard of anti-European propaganda. This is not the place to decide whether and to what extent all this really affects the overall output-record of the EU; for an adequate account, one would have to balance the various deficiencies and cases of dysfunction against the many fields where the European institutions still operate rather effectively and, at least largely, satisfy the needs of ordinary European citizens. But even if we admit that the EU has not done too well in the last years, especially in coping with its recent crises, even its fervent critics should admit that it is at best questionable whether its members would really have been better off if the upcoming issues had been addressed on a national level. For the vast majority of those (migration, global warming, digitalization, financial market regulation etc.), this is highly unlikely, leaving ‘normal’ international cooperation below the level of EU-like supranationality as the only seriously debatable alternative. But this undoubtedly has a democratic deficit, and a much larger one than the EU: with often opaque decision-making structures, a strong influence of powerful economic actors, the dominance of experts and limited room for political contestation.100 99 See Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 The Modern Law Review 817, 836ff. 100 See Hailbronner (n 85) 292. 31 6. CONCLUSION Having come so far, it may well be that the comparison between India and the EU under the aspect of democracy tells us less (or at least just as much) about the functioning of the respective political system than about the principle of democracy itself: how we look at or assess the quality and the outcome of the democratic process also affects and perhaps even shapes the principle and our image of it. This might explain for example why the idea of output-legitimacy has been conceived as an integral part of democracy in the European context while it is precisely this idea that leads to a general scepticism toward democratic procedures in India. The input and output legitimacy deficits in India do not easily allow thick concepts of democracy to thrive. Rights and values implied by democracy increasingly found independent constitutional authorities to be their protectors. Demands for independent and accountable watchdogs and regulators one the one hand, and vote-seeking populism and identity politics on the other, perhaps reflect the need to reconceptualize the legitimacy of governments on multiple axis including democratic accountability. Arguably, the output-legitimacy failures in India are not attributable to the concept of democracy, but to the pathological design and functioning of democratic institutions. However, it is worth considering that precisely electoral democracy has counted towards successful democracy in India. If electoral democracy is now the target of democracy-deficit, then even thin democracy fares poorly. India’s experience therefore begs reflection on whether governance-deficit travels through to the very idea of democracy as a system of government where consent is the unit of political legitimacy. Perhaps democracy is only one of several virtues of governments. Independence, expertise, accountability and transparency deserve valuing on their own terms, without burdening democracy as their justification. However, even for the EU it may be discussed whether more demanding accounts or theoretical conceptions of democracy really fit for it and its very unique – and highly complex – way of policy-making: is not the mere formal, maybe reductionist view of democracy the only adequate way to grasp its specific nature and to do justice to it? And is it really sensible to formulate requirements on the political process in Europe that are so high or so idealistic that they can hardly ever be met? On the other hand, it is exactly the emphatic content of the concept that might provide us with a vision, not only for the ‘ever closer’ union as it is addressed in the preamble of the TEU, but for a better union than today: a union that is not only tacitly accepted but actually carried by its citizens, a union that regards these citizens not only as passive clients or service recipients but as autonomous participants in a common project. 32 Anyway, this is, as in our critical review of India, exactly the point where the discussion of so-called democratic deficits may bounce back on the perception and the very concept of democracy itself.