NATIONAL LAW UNIVERSITY ODISHA

Cuttack Naraj Road, CDA, Cuttack-753015

PROJECT
Subject- Contemporary Political Discourse

Topic- Democracy and India

Submitted to: Submitted by:

Dr. Suvrashree Panda Aanchal Trivedi (2016/B.A.LL.B./001)

Catherine Anichar (2016/B.A.LL.B./027)

Gauri Mishra (2016/B.A.LL.B./040)

Kavya Awasthi (2016/B.A.LL.B./051)

Lakshmi Priya Jena (2016/B.A.LL.B./055)

Mrinal Gupta (2016/B.A.LL.B./062)

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 ACKNOWLEDGEMENT

We would like to express our special thanks of gratitude to our teacher Dr. Suvrashree Panda
as well as our Vice Chancellor Prof. Srikrishna Deva Rao for giving us this opportunity of
doing a project on ‘Democracy and India’. This project helped us in research work and we
learnt to critically analyse the concept of Democracy in India. The library resources as well as
the e-resources came to great use to us.

2
 TABLE OF CONTENTS

Acknowledgement..........................................................................................................(02)

Introduction...................................................................................................................(03)

Objectives.............................................................................................................................(08)

Scope of Research................................................................................................................(08)

Research Methodology...................................................................................................... .(08)

Hypothesis............................................................................................................................(08)

Research Questions..............................................................................................................(08)

Chapters

1. Chapter 1-Free and Fair Elections......................................................................(09)

2. Chapter 2-Freedom of Press................................................................................(15)
3. Chapter 3-Right to Dissent..................................................................................(18)
4. Chapter 4-Rule of Law and Right to Equality...................................................(22)
5. Chapter 5-Survey and Data Interpretation........................................................(27)
Conclusion and Suggestions.............................................................................................(29)

Bibliography.......................................................................................................................(31)

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 INTRODUCTION

The term democracy comes from the Greek language and means “rule by the people”. It is
the purest and the most challenging form of government. It is a government by the people
where people are the supreme authority and they exercise their power directly or through
elected representatives from amongst themselves. In the terms of Abraham Lincoln,
democracy is “of the people, by the people and, for the people”. According to political
scientist Larry Diamond, democracy consists of four key elements: (a) A political system for
choosing and replacing the government through free and fair elections; (b) The active
participation of the people, as citizens, in politics and civic life; (c) Protection of the human
rights of all citizens, and (d) A rule of law, in which the laws and procedures apply equally to
all citizens.1

Democracies are basically of two types, namely, direct and representative. In a direct
democracy, all the citizens can participate in decision making without the help of an
intermediary. It is practical to have direct system of democracy when the population is
relatively smaller. However, considering the present society with its size and complexity, we
practice representative democracy. In such a system, a particular set of people are elected and
they represent the entire group. It is considered to be the most efficient form of democracy.

The Democracy Index is an index compiled by the UK-based Economist Intelligence

Unit that measures the state of democracy in 167 countries, of which 166 are sovereign
states and 165 are UN member states. It categories countries as one of four regime types
namely, full democracy, flawed democracy, hybrid regimes and authoritarian regimes.

 Full democracies are nations where civil liberties and basic political freedoms are not
only respected, but also reinforced by a political culture conducive to the thriving of
democratic principles. These nations have a valid system of governmental checks and
balances, independent judiciary whose decisions are enforced, governments which
function adequately, and media which is diverse and independent. These nations have
only limited problems in democratic functioning.2
 Flawed democracies are nations where elections are fair and free and basic civil
liberties are honored but may have issues (e.g. media freedom infringement).
1
http://web.stanford.edu/~ldiamond/iraq/WhaIsDemocracy012004.htm
2
https://www.yabiladi.com/img/content/EIU-Democracy-Index-2015.pdf

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 Nonetheless, these nations have significant faults in other democratic aspects,
including underdeveloped political culture, low levels of participation in politics, and
issues in the functioning of governance.3 The Economist Intelligence Unit's 2008
Democracy index—based on 60 indicators which measure electoral process and
pluralism; civil liberties; the functioning of government; political participation; and
political culture—ranks India 35th out of 167 countries, putting it among the 50
countries considered "flawed democracies.4

 Hybrid regimes are nations where consequential irregularities exist in elections

regularly preventing them from being fair and free. These nations commonly have
governments which apply pressure on political opponents, non-independent
judiciaries, widespread corruption, harassment and pressure placed on the media,
anemic rule of law, and more pronounced faults than flawed democracies in the
realms of underdeveloped political culture, low levels of participation in politics, and
issues in the functioning of governance.5

 Authoritarian regimes are nations where political pluralism has vanished or is

extremely limited. These nations are often absolute dictatorships, may have some
conventional institutions of democracy- but with meager significance, infringements
and abuses of civil liberties are commonplace, elections- if they take place- are not
fair and free, the media is often state-owned or controlled by groups associated with
the ruling regime, the judiciary is not independent, and the presence of omnipresent
censorship and suppression of governmental criticism.6

The Greeks and Romans established the precursors to today’s modern democracy. The three
main branches of Athenian democracy were the Assembly of the Demos, the Council of 500
and the People’s Court. Assembly and the Council were responsible for legislation, along
with ad hoc boards of “lawmakers.”7

3
https://www.yabiladi.com/img/content/EIU-Democracy-Index-2015.pdf
4
http://www.business-standard.com/article/press-releases/india-is-a-flawed-democracy-says-the-economist-
intelligence-unit-109040700128_1.html
5
https://www.yabiladi.com/img/content/EIU-Democracy-Index-2015.pdf
6
https://www.yabiladi.com/img/content/EIU-Democracy-Index-2015.pdf
7
http://www.livescience.com/20919-democracy.html

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Democracy also has roots in the Magna Carta, England's "Great Charter" of 1215 that was the
first document to challenge the authority of the king, subjecting him to the rule of the law and
protecting his people from feudal abuse8.

According to Samuel P. Huffington, a political scientist, there exist three waves of

democracy, the first beginning in the early 19th century and the third being a current event.
According to him, “The first began in the early 19th century with the extension of the right to
vote to a large proportion of the male population in the United States, and continued until the
1920s. During this period, some 29 democracies came into being. The ebb, or reversal, of the
first wave began in 1922 with the accession of Mussolini to power in Italy and lasted until
1942, when the number of the world's democracies had been reduced to 12.” 9

The second wave began following the Allied victory in World War II, and crested nearly 20
years later in 1962 with 36 recognized democracies in the world. The second wave ebbed as
well at this point, and the total number dropped to 30 democracies between 1962 and the
mid-1970s. But the "flat line" would not last for long, as the third wave was about to surge in
a way no one had ever seen10

“The Third wave began in 1974 (Carnation Revolution, Portugal) and included the historic
democratic transitions in Latin America in the 1980s, Asia Pacific countries
(Philippines, South Korea, and Taiwan) from 1986 to 1988, Eastern Europe after the collapse
of the Soviet Union, and sub-Saharan Africa beginning in 1989. Exact tallies of the number
of democracies vary depending on the criteria used for assessment, but by some measures
there are well over 100 democracies in the world today, a marked increase in just a few
decades] Many of these newer democracies are not fully "consolidated," however, meaning
that while they have electoral institutions in place, political democracy remains fragile.
Reasons for this fragility include economic instability, continued elite dominance of politics,
ongoing military interference in civilian affairs, and others.” 11 Political scientists or thinker
believe that even thee third wave is going to ebb soon just as the first and the second did.

Further, in this project we have discussed about the indicators of democracy which are Right
to free and Fair election, freedom of press, Right to dissent, Rule of law and Right to

8
http://www.livescience.com/20919-democracy.html
9
http://www.4uth.gov.ua/usa/english/politics/whatsdem/whatdm13.htm
10
http://www.4uth.gov.ua/usa/english/politics/whatsdem/whatdm13.htm
11
https://en.wikipedia.org/wiki/Third_Wave_Democracy

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equality. This is followed by a survey on Indian democracy and thereafter, conclusion and
necessary suggestions have been provided with regards to democracy and India.

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 OBJECTIVES
1) To study and analyse Indian Democracy

2) To highlight various indicators of Democracy and see if they are present in India

3) To suggest Reforms so as to make India a full democracy.

SCOPE OF RESEARCH
We have limited the project to studying 4 major indicators of democracy and see if they are
present in India and to what extent.

RESEARCH METHODOLOGY
In order to understand and critically analyse democracy in India the methodology adopted
was both doctrinal and empirical. The sources referred under this project are both primary as
well as secondary. The cases used are the primary source, whereas books and other resources
referred are secondary sources. Along with that we conducted a survey to know the public
opinion with regards to democracy in India.

HYPOTHESIS
India is not a full democracy; instead it is a flawed democracy.

RESEARCH QUESTIONS
1) Is India a full democracy?

2) What are the various indicators of democracy?

3) Are they present in India and to what extent?

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 CHAPTER- 1
FREE AND FAIR ELECTIONS
An election can be understood as a process conducted by people, for choosing a
representative that can hold a public office. It is used as a usual mechanism for the operation
of modern representative democracies.12The contemporary use of elections as a means for
choosing representatives in modern representative democracies is in contrast with the
archetype democracy of Athens, where the elections were only for a selected power group
and most of the public offices were filled by the way of sortition also known as allotment-
under which officeholders were selected by a lot.13

India being a democracy of federal structure, has elected officials at three-tier level i.e. at
federal, state and local levels. To maintain the sanctity of a democratic state, India follows the
scheme of Universal Adult Suffrage. The elections in India are conducted by a constitutional
authority called Election Commission of India.14

Need of Elections:15

 Election take place regularly in all the democracies. A rule of the people is not
possible in any large country and it is not possible for everyone to have the time and
knowledge to take decisions on all matters. Therefore in most democracies, people
rule through their representatives.
 It is because of this reason that elections are considered important for any demoracy.
In the election, the voters make several choices like:
 They have a right to choose representatives as their law makers.
 They have a right to choose the leader that can form the government
and take major decisions.
 They have a right to choose the party that can frame policies to guide
the government and its law making.

12
“Election (Political Science).” Encyclopedia Britannica Online.
13
Headlam, James Wycliff (1891) Election by Lot at Athens p. 12.
14
Basu, Durga D. (2009). Introduction to the Constitution of India p 199. Lexis Nexis
Butterworths Wadhwa, Nagpur, India.
15
< http://gradestack.com/CBSE-Class-9th-Complete/Electoral-Politics/Overview/14931-2957-3175-study-
wtw> (last visited on 10th April, 2017).

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Advantages and Disadvantages of Electoral Politics:16

 Disadvantages
 Electoral politics create a feeling of disunity and factionalism.
 Raising the allegations by one party for another is a common practice in electoral
politics.
 Dirty tricks are often used by parties and their candidates in order to win the elections.
 Due to this unhealthy competition, people often hesitate to participate in the politics
of the country.
 Advantages
 Despite of its disadvantages, the framers of the constitution chose the method of
election as elections are the only effective way to run a country politics for long run.
 In a way, it tries to improve the character of politics and knowledge of leaders, by
rewarding deserving representatives multiple chances to enrich their knowledge of
Indian polity and punishing undeserving candidates by taking away the powers after a
fixed period of time.
 In an electoral system, a political party is forced to serve the people even when it is
solely motivated by the desire of power.

How the Elections are held in India?17

 General Elections:

The General Elections are conducted in all the constituencies either on the same day
or within a few days.

 By- Election:

At times, elections are held just for one or two constituencies so that the vacancies
that are caused by reasons like death, disqualification etc, can be filled. This is called
by- election.

16
Ibid.
17
Ibid.
10
 Electoral Constituencies:

The country is divided into different areas based on population for the purpose of
elections. These are called electoral constituencies. For Lok Sabha elections, the
country is divided into 543 constituencies.

 The Reserved Constituencies and its requirement:

Some constituencies are reserved for people who belong to the Scheduled Castes and
Scheduled Tribes. In a reserved constituency only someone who belongs to the
Scheduled Castes or Scheduled Tribes can stand for election.
Our Constitution entitles every citizen to elect its representative and to be elected as a
representative. The Constitution makers worried that in an open electoral competition,
weaker sections may not stand a good chance to get elected.

 Voters’ list:
The list of those who are eligible to vote is prepared much before the election and
given to everyone. This list is officially called Electoral Roll and is commonly known
as the Voters’ List.
In our country, all the citizens aged18 years and above can vote in an election. Every
citizen has the right to vote, regardless of his or her caste, religion or gender.
Some criminals and persons with unsound mind can be denied the right to vote, but
only in rare situations.
In the last few years a new system of Election Photo Identity Card[EPIC] has been
introduced. The government has tried to give this card to every person on the voters
list.

 Nomination of candidates
Anyone who can be a voter can also become a candidate in elections. The only
difference is that in order to be a candidate the minimum age is 25years, while it is
only 18 years for being a voter.
Every person who wishes to contest an election has to fill a‘ nomination form’ and
give some money as ‘security deposit’.

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  Legal declaration introduced by the Supreme Court for filing
Nomination papers.
1.   Every candidate has to make a legal declaration, giving full details of Serious
criminal cases pending against the candidate;
2.   Every candidate has to make a legal declaration, giving full details of Details of
the assets and liabilities of the candidate and his or her family; and
3.   Every candidate has to make a legal declaration, giving full details of Education
qualifications of the candidate.

 Election Campaign:
In our country such campaigns take place for a two-week period between the
announcement of the final list of candidates and the date of polling. During this period
the candidates contact their voters, political leaders address election meetings and
political parties mobilize their supporters.

 Polling and Counting of Votes:

The final stage of an election is the day when the voters cast or ‘poll’ their vote. That
day is usually called the election day. Every person whose name is on the voters’ list
can go to a nearby ‘polling booth’, and cast vote.
Nowadays electronic voting machines (EVM) are used to record votes. The machine
shows the names of the candidates and the party symbols.
A few days later, on a fixed date, all the EVMs from a constituency are opened and
the votes secured by each candidate are counted. The candidate who secures the
highest number of votes from a constituency is declared elected

 What make Elections in India Democratic?18

 Election Commission:
An independent and powerful commission appointed by the President of India to
conduct free and fair election is called Election Commission. The commission has

18
Ibid.

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 three members and once they are appointed, they are not answerable to the President
or the government.

Powers and functions of the Election Commission of India:

1.   EC takes decisions on every aspect of conduct and control of elections from the
announcement of elections to the declaration of results.
2.   It implements the Code of Conduct and punishes any candidate or party that
violates it.
3.   During the election period, the EC can order the government to follow some
guidelines, to prevent use and misuse of governmental power to enhance its
chances to win elections, or to transfer some government officials.
4.   When on election duty, government officers work under the control of the EC and
not the government.

 Popular participation of people in Election:

1.   People’s participation in election is usually measured by voter turnout figures.
Turnout indicates the percent of eligible voters who actually cast their vote. In India
the turnout has either remained stable or actually gone up.
2.   In India the poor, illiterate and underprivileged people vote in larger proportion as
compared to the rich and privileged sections.
3.   Common people in India attach a lot of importance to elections. They feel that
through elections they can bring pressure on political parties to adopt policies and
programs favorable to them.
4.   The interest of voters in election related activities has been increasing over the years.
During the 2004 elections, more than one third voters took part in campaign-related
activities. More than half of the people are being close to one or the other political
party.

 Acceptance of election outcome by the candidates and parties:

1.   The ruling parties routinely lose elections in India both at the national and state level.
In fact in every two out of the three elections held in the last fifteen years, the ruling
party lost.
2.   In India about half of the sitting MPs or MLAs lose elections.

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 3.   Candidates who are known to have spent a lot of money on ‘buying votes’ and those
with known criminal connections often lose elections.
4.   Barring very few disputed elections, the electoral outcomes are usually accepted as
‘people’s verdict’ by the defeated party.
Challenges to Free and Fair Elections in India:19
1.   Candidates and parties with a lot of money may not be sure of their victory but they do
enjoy a big and unfair advantage over smaller parties and independents.
2.  In some parts of the country, candidates with criminal connections have been able to push
others out of the electoral race and to secure a ‘ticket’ from major parties.
3.   Some families tend to dominate political parties; tickets are distributed to relatives from
these families.
4.   Very often elections offer little choice to ordinary citizens, for both the major parties are
quite similar to each other both in policies and practice.
5.   Smaller parties and independent candidates suffer a huge disadvantage compared to
bigger parties.

19
Ibid.

14
 CHAPTER- 2
FREEDOM OF PRESS
Like the American Constitution, Freedom of Press is not explicitly recognized in the Indian
constitution. However in India, ‘Freedom of Press’ is implicitly inferred from the ‘Freedom
of speech and expression’ that the Indian constitution provides us with under Article 19(1)(a)
which states that, “all citizens shall have the right to freedom of speech and expression” 20
Thus the press is also subject to the restrictions that are imposed in the interest of the
sovereignty and integrity of India, security of the state, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offence, which are mentioned
in the sub clause 2 of article 19 in The Indian Constitution.21

One of the most globally accepted human right is the right to freedom of expression, whereas
the freedom of press is measured to be one most essential and vital rights that is to be
protected in a democratic society like India., the freedom of press can only be obtained in a
country where there is a freedom of speech and expression given to the people 22.Freedom of
press means freedom from interference from authority which would have the effect of
interference with the content and circulation of newspapers. There cannot be any interference
with the freedom in the name of public interest. 23 In a landmark case Indian Express v. Union
of India, it was held that the press plays a extremely vital role in a democracy. It was also
held that the courts have a duty to uphold the freedom of press and nullify all laws and
administrative actions that are a hindrance to the freedom of press. It was stated that the
Freedom of press has three essential elements which were freedom of access to all sources of
information, freedom of publication, and freedom of circulation.24

Like the ordinary citizens of India, the status of the freedom of press is alike. The press is not
subject to any immunity from taxation, and is subjected to the same laws and rules regulating
industrial relations and employment. As the press enjoys the freedom expression that is
ensured by the article 19 of the Indian constitution, no rules, regulations or laws could be

20
The Indian constitution, Article 19 (1)(a)
21
The Indian constitution, Article 19 (2)
22
Mayukh Gupta,’Freedom of press in India’ (16 June 2010) <http://www.legalserviceindia.com/article/l46-
Freedom-of-Press.html> accessed 6 April 2017.
23
Indian Express Newspapers V. Union of India 1985 1 SCC 641
24
Indian Express Newspapers V. Union of India 1985 1 SCC 641

15
sanctioned in order to restrict the press of its freedom of expression. To summarize the Indian
constitution does not grant the government any power to impose any whimsical limitations on
the functioning of the press by subjecting them to disproportionate or exorbitant burdens to
restrict its circulation or by imposing specific tax that is purposely imposed to limit the
circulation of information. Politicians holding office, however, often try to restrict the press
to withhold information that is usually unfavorable for them.

The significance of the Freedom of Press is on the basis that for most civilians the prospect of
personal familiarity with newsworthy events is unrealistic. Therefore while in quest for news
the press or the media acts for the public at large. The media is considered to be the medium
by which the citizens receive free flow of information and ideas. This is essential to
intelligent self- governance, that is, democracy.

It is essential for the ideal functioning of Democracy that the people are kept abreast of the
latest news from different areas of the country and the world, because without the knowledge
provided by the press, the citizens cannot form rational opinions regarding various issues.
Thus, to conclude the media or the press plays a vital role in a democratic country like India
and it is for this factor that the freedom of press has been accentuated in a democracy, while
in feudal or totalitarian administrations it is not permitted. In our country, India, the press has
played a vital role in educating and providing its citizens information about all the social and
economic evils that take place in various sections of the country, for instance details
regarding mass farmers suicide, honor killings, political corruption, child marriage, are all
25
intimated to the citizens via the press. The press through the medium of newspapers and
journals promotes the free flow of information which is an important feature for promoting a
corruption free, transparent and accountable democratic society. If there was no freedom of
press the citizens would not be able keep a check on the functioning of a government, which
would lead to abuse of power by those who hold office, thereby ruining the essence of a
democracy.26

Only a true democratic government can ensure the freedom of press to its citizens, however
with as the saying goes with power comes great responsibility, the press should ensure that all
information published should always be backed by authentic proof. It is suggested that there
25
Markendey Katju ‘Freedom of the press and journalistic ethics’(18 August,2016)
<http://www.thehindu.com/opinion/lead/freedom-of-the-press-and-journalistic-ethics/article2071551.ece>
accessed 6 April 2017.
26
< http://essaynparagraph.com/freedom-of-press/> accessed 6 April 2017.

16
must be a governing body whose function is to ensure that this freedom is not being misused
by publishing false, derogatory and baseless news, but at the same time giving enough
autonomy to the press, for them to exercise their freedom.

During the emergency, in the year 1976, the parliament of India passed the ‘Prevention of
Publication of Objectionable Matter Act’ which was later revoked in the year 1978 by the
Janta party. But In the 44th amendment of the Indian constitution, the parliament was given
enough authority to regulate the freedom of press through the Article 361 A in the
constitution. Censorship with regard to the Freedom of Press is said to be an extremely vital
and susceptible issue in a democracy it is considered as a very unhealthy check on the
Freedom of Expression. The constitution of India does not exclusively prohibit censorship
with regard to press but only check on the state in resorting to censorship is that it should be
reasonable. This provision for the check on the government was not present before the 1 st
amendment of the Indian constitution. In two Supreme Court cases with respect to the
freedom of press- Brij Bhusan v. The State of Delhi and Ramesh Thapar V. State of Madras.
It was held by the court that by censorship, evident restrictions on the Freedom of speech and
expression are imposed. Currently censorship is valid in times of emergency (Article 352) if
it is reasonable and if in the interest of public order.27

It is said that there are 3 pillars of a democracy- the legislative, the executive & the judiciary.
The press acts as the 4th essential pillar in a democracy and plays the role of a watch dog in
the country. The reason why Freedom of press is essential is to know what is right, true and
fair. To conclude, I would like to quote Father of our Nation- Mahatma Gandhi, "The role of
journalism should be service. The Press is a great power, but just as an unchained torrent of
water submerges the whole countryside and devastates crops, even so an uncontrolled pen
serves but to destroy." 28

27
Vijay Jaiswal, ‘Freedom of press in Indian Constitution’ (3 September, 2013)
<www.importantindia.com/2011/freedom-of-press-in-indian-constitution/> accessed 6 April 2017.
28
Mayukh Gupta,’Freedom of press in India’ (16 June 2010) <http://www.legalserviceindia.com/article/l46-
Freedom-of-Press.html> accessed 6 April 2017.

17
 CHAPTER- 3
RIGHT TO DISSENT
Dissent can be understood as contrariety of opinion; refusal to agree with something. The
word is commonly used in American law to denote the obvious disagreement of one or more
judges of a court with the decision passed by the majority n a case. In any such event, the
non-concurring judge is reported as to be “dissenting”. 29Dissent is an emotion or philosophy
of non-agreement to a prevailing idea (e.g., policies of the current government) or any entity
(e.g., a follower of this political party who supports such policies). In some political systems,
dissent may be formally communicated by the way of opposition politics, while politically
repressive organizations may work to prohibit any form of dissent, leading to suppression of
dissent and the encouragement of various forms of social or political activism trends. Several
thinkers have argued that a healthy society needs not only to protect, but also to encourage
dissent. In a 1843 letter to Arnold Rouge, the great thinker Karl Marx wrote: "If constructing
the future and settling everything for all times are not our affair, it is all the more clear what
we have to accomplish at present: I am referring to cruel criticism of all that exists, cruel both
in the sense of not being afraid of the consequences it arrives at and in the sense of being just
as little afraid of conflict with the powers that be". 30 Roughly an entire century ago, in the
year 1919, the United States of America had just finished with World War I, a war to end all
sorts of other wars. In that year the U.S.A Supreme Court was called to decide a landmark
case of Abrams v/s United States of America. This case actually challenged the convictions
of 5 Russian-born men who were sued under the Espionage Act of 1917, as it had been
amended by the Sedition Act of 1918, for “provoking and encouraging” confrontation to the
government’s war efforts (and its aggressive drills toward Russia) by a series of pamphlets.
The court sustained the conviction except for one judge, Oliver Wendell Holmes Jr., who
dissented. When Holmes circulated his draft judgment to others they asked him to change his
stand. They feared that such a dissent, from Judge Holmes, could weaken the country’s
resolution. Holmes had always respected the institution of the Court by compromising for
unanimity. Butthis time he felt otherwise. Holmes adhered to his dissent. It created sensation
among everyone &was acclaimed as a monument to liberty. Holmes wrote: “But when men
have realised that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is

29
http://thelawdictionary.org/dissent/
30
https://en.wikipedia.org/wiki/Dissent

18
better reached by free trade in ideas - that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the only ground upon
which their wishes safely can be carried out. That, at any rate, is the theory of our
Constitution. It is an experiment, as all life is an experiment.” 31A democracy in any part of
the world without any dissenter in it is impossible. Free men, when they exercise their free
thought, will always give aperture in free speech. Irrespective of how abhorrent the thought
appears, a mature democracy will always tolerate it, and also encourage its publication. These
exact words were cited last year in India by Justice Rohinton Nariman of the Supreme Court,
when the honourable court struck down Section 66(A) of the IT Act in the landmark Shreya
Singhal case. It unfettered online speech in India from the unwanted threat of arrests and
prosecution. “India, that is Bharat, shall be a union of states,” decrees Article 1 of our Indian
Constitution. In reality though, India has in its nearly 70 years of independence been a
disunity of strongly held political opinions, all of which dissent from each other. In May 2014
the election of a majority government happened after the past 60-odd years of the Indian
Republic was a mere prologue to an empire and a Western era that had not fully ended in
1947. The Nehruvian ideology was believed to be appeasement of minorities and the west.
The Left agrees that there has always been subservience to the West, but it says that
appeasement of the rich and of religious majorities only happened. The 3 rd story told is by the
apologists of the ancient regime, who tell a process of stable economic increase and
containment of social pressures, which have now been disturbed by a disastrous lurch
towards contagious nationalism. These and other voices have contributed to the medley and
melody of the argumentative Indian life that surrounds in the same manner its villages, cities,
bazaars and malls, and is daily amplified for us in media. It has never been recommended that
an outlook different to that of the government is in anyway hostile to national interest. India’s
has been able to express and concurrently contain a shed load mutinies have been a source of
happiness to its friends and of amazement to its opponents. Zulfikar Ali Bhutto, once
supported a 1000-year war with India, proclaimed from Pakistan, “India is far more diverse
than Pakistan, but India has been kept over the years in one piece by the noise and chaos of
her democracy.”

Recent events at the J.N.U fanned such a boiling rage against dissent in India, Why? What
has instigated the majority to react with terror and loathing to just slogans that have been
heard over decades in certain parts of India? Who are those people who have profited from

31
https://en.wikipedia.org/wiki/Dissent

19
the rising of temperatures of discussion, to the point where dissent from the majority
description is seen as “anti-national”? From when does a protest from discontent against
government policiesis sedition against the nation. Is the India so brittle that it can only be
held together by strong leaders compassionately administering the totalitarian structure of a
police state?

Dissent is not something anti-national. This nation has been built on dissents expressed at
crucial times in its history. Kautilya also dissented against the mighty Nandas of Magadh,
who were self-satisfied in the face of Alexander’s invasions. He himself created the Mauryan
empire. The Buddha dissented against all sorts of orthodoxy prevalent during his times, and
the eightfold path stood revealed. The dissent of the soldiers present at Barrackpore and
Meerut led to the First War of Independence that happened in 1857. A long line of dissenters
thereafter, from Tilak to Bose, Nehru and Gandhi, gave us our very own path to an
independent India. Dr B.R Ambedkar, dissented from even Mahatma Gandhi, gave India a
Constitution that has endured all these years. Our Republic has seen its own share of
dissenters whose discordant dissent of the present has led to the wisdom of the future. C.
Rajagopalachari’s opposition to Soviet-style planning came to fruition when P.V. Narasimha
Rao and Manmohan Singh pull to pieces the licence quota raj. J.P Narayan’s call for total
revolution led both Emergency as well as the consensus against a dictatorship. Justice H.R.
Khanna dissented in the landmark ADM Jabalpur case and held that the right to life was
inherent in human beings and not a gift of the Constitution to us which could be put off
Charles Evans Hughes dictum, “A dissent in a court of last resort is an appeal to the brooding
spirit of law, to the intelligence of a future day.” It is always better for an imperfect thought
to be raised and rejected in the marketplace of ideas, than for it to rankle within the
warehouses of inexpressible thought. After all there is no greater idea of democracy than free
men, freely and voluntarily, committing to the requirements of citizenship of a free country.
Only totalitarian regimes suppress dissent and dissidents. Only a country not yet rid of its
colonial hangover of a government that commands and controls, labels dissent as seditious. A
truly free nation will confidently view even its advocated destruction as a bad idea that will
fail in the marketplace of ideas.32 We have also been too tolerant even of intolerance. When
some people often members of a minority are attacked by organised disparagers, they need
our support. This is not happening adequately right now & earlier as well. We should move
away from blaming the Indian Constitution for what it does not say. We should not to any

32
http://www.thehindu.com/opinion/lead/No-freedom-without-dissent/article14135235.ece

20
extent tolerate the intolerance that undermines our democracy in any way, that diminishes the
lives of many Indians, and that aids a culture of impunity of persecutors. In particular, there is
need for judicial scrutiny of the use that organised persecutors make of an imagined
prerogative of ‘not to be offended’. Lastly, if some states, under the influence of sectarian
groups want to extend these freedoms through local legislation (in case of banning a
particular food), the courts definitely have to examine the compatibility of these legislation
along with the fundamental rights of people, including the right to speech and to personal
liberties. As Indian citizens, we have a purpose to be proud of our tradition of tolerance and
plurality, but we have to work hard to preserve the same. The courts also have to do their
duty (as they are already doing but much more is needed) & we have to do ours. Vigilance
has been for so long recognised to be the price of freedom.33

33
https://sabrangindia.in/article/criticality-right-dissent

21
 CHAPTER- 4
RULE OF LAW AND RIGHT TO EQUALITY

Rule of law
According to the Oxford English Dictionary rule of law means, “the authority and influence
of law in the society, esp. when viewed as a constrain on individual and institutional
behaviour (hence) the principle whereby all members of a society (including those in
government) are considered equally subject to publicly disclosed legal codes and
procedures.”34

Many commentators on the rule of law such as Richard H Fallon Jr. 35 and George P Fletcher
have often argued that there is no clear and precise definition or meaning of the rule of law
while some commentators like Todd J Zywickihave said that such is not the case36.The phrase
was known to the ancient philosophers such as Aristotle, who wrote “Law should
govern”37Therule of law was popularized by V.Dicey who was a British lawyer in the 19 th
Century.38 Dicey identified three fundamental characteristics of rule of law as it emerged in
Britain-1) regular law was the supreme law and was opposed to arbitrary power, i.e., the rule
of law would prevail against the rule of men; 2) equality before the law of every person
without any distinction in class and power, including government officials and; 3) the
incorporation of Constitutional law as a binding part of the ordinary law of the land.39

Richard H. Fallon Jr. has also expressed his opinion on the rule of law. Efforts to specifythe
meaning of the Rule of Law commonly appeal to values and purposes that the Rule of Law is
thought to serve. 40 Three such purposes to fulfil- against the numerous competing definition,
meanings and concepts can be tested- appear central. First, the rule of law should protect the
people against stateless societies, lawlessness, revolution, absence of government or anarchy
but most of all it must protect the people from the Hobbesian war. 41Second, the rule of law
should give the people the freedom to plan their own affairs with reasonable confidence that
they are aware of the legal consequences of various actions before indulging or doing such an

34
Oxford English Dictionary
35
“‘The Rule of law’ as a concept in Constitutional Discourse” by Richard H Fallon Jr. 1997
36
“The rule of law, freedom and prosperity” by Todd J Zywicki
37
“Politics” Aristotle.
38
“‘The Rule of law’ as a concept in Constitutional Discourse” by Richard H Fallon Jr. 1997
39
“An introduction to the study of the law of the Constitution” by V.Dicey 1915
40
“A theory of law” John Rawls (1971)
41
“A theory of law” John Rawls (1971)

22
act.42 Third the rule of law should provide some guarantee against at least some kind of
official arbitrariness.43

Against the background of this purpose, leading modern accounts focus of five elements 44
that have made up the rule of law.

1. The first element is the capacity of legal rules, principle, or standards to guide people
in the conduct of their affair. People must be able to know the law as well as
understand the law and follow it accordingly.

2. The second element of the rule of law is efficiency. The law should be able to guide
the people for most of the part. In Joseph Raz’s phrase, “people should be ruled by the
law and obey it.”

3. The next element of the rule of law is stability. The law should be reasonably stable
so that it will be able to efficiently coordinate action and open the door for planning
over time.45

4. The fourth element of the rule of law is the supremacy of legal authority. The law
should not only rule the public or the ordinary citizens but also public officials
including judges.46

5. The final element of the rule of law is that it should serve as a means of impartial
justice. The courts should not indulge in any unfair means of enforcing the law and
the courts should be available to enforce the law.47

In simple terms the rule of law means that ‘no one is above the law.’ 48 It is opposed to the
Devine Right Theory where the ruler was thought to be chosen by God and derived the right
to rule directly from the will of God. Therefore in this theory the King or the ruler was not
subject to any one and ruled in whatever way he thought was best without any justification as
the people did not dare question his actions.

42
“Road to serfdom” Friedrick Hayek (1944)
43
“The political idea of the rule of law” Friedrick Hayek (1955)
44
“‘The Rule of law’ as a concept in Constitutional Discourse” by Richard H Fallon Jr. 1997
45
“A theory of law” John Rawls (1971)
46
“A theory of law” John Rawls (1971)
47
“Road to serfdom” Friedrick Hayek (1944)
48
https://www.lexisnexis.com/en-us/rule-of-law/default.page

23
In India, the rule of law can be traced back to the Upanishads. In modern India the
Constitution is based on the rule of law and it is considered as the supreme law of the land.
Ideals such as justice, liberty and equality are enshrined in the Preamble itself. 49The
executive, legislature and the judiciary derives its power from the Constitution and they work
within their respective areas as allotted to them by the Constitution of India. Even the laws
that are madeare in accordance to the Constitution and if any of the provisions of the law are
found to be against the Constitution particularly that of the Fundamental Rights, then it is
declared as void and struck down.

The basic right to life and personal liberty is protected by Article 21 of the Constitution. The
principles of equality before the law equal protection are covered by Article 14. Article 19
protects certain rights regarding freedom of speech and expression.50

The Constitution also provides for an independent judiciary to settle disputes. The judiciary is
independent so that the Judges will not be influenced by anything and will be able to give a
fair and just judgement. Justice R.S. Pathakpf the Hon’ble Supreme Court said. “It must be
remembered that our entire constitutional system is founded on the rule of law, and in any
system so designed it is impossible to conceive of legitimate power which is arbitrary in
character and travels beyond the bound of reason.”51

Right to equality

Equality as Professor Laski says does not merely mean the absence of special privileges but it
also means that adequate opportunities should be laid open before everyone.52 According to
this right, every citizen has the right to enjoy the right that are provided by the State and can
occupy any position as created by the State.53

Discrimination has many different causes and many effects which may affect people of
different racial, ethnic or social origins. It can also be aimed at people of different culture,
linguistic or religious origins, persons who are differently-abled or for instance people who

49
The Preamble of the Indian Constitution
50
Article 19, the Indian Constitution
51
https://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-og-rule-of-law-
essays.php#ftn15
52
“A Grammar of politics” Harold J. Laski (1967)
53
“Equality as a Fundamental Right in India” P.C. Alexander

24
are living with HIV virus or with AIDS. In today’s context people may be discriminated on
the context of their sexual preference or their sexual orientation. Discrimination on the basis
of gender is also quite prevalent today despite the development and progress. In order to
protect its citizens from such discrimination the State has taken up steps to guarantee that all
the people are treated equally before the law despite the differences. Before the law there is
no rich or poor, him or her, Hindu or Muslim, Brahmin or Sudra. Everyone is equal before
the law.

Part III of the Indian Constitution provides equality of all the citizen of India before the law
without any distinction in caste, colour, creed, sex, religion, language, place of birth, and any
of them. In the doctrine of Fundamental Rights the right to equality is recognised as very
important. Right to Equality is guaranteed by the Indian Constitution by Article 14 to Article
18. Article 14 states that the State shall not deny to any of its citizens equality before the law
or equal protection of the laws within India.54 Article 15 prohibits the State from
discrimination of its citizens on the grounds of sex, caste, religion, place of birth, gender,
race, or any of them. However, this Article does not prevent the State from making special
provisions doe women, children and socially and economically backward sections of the
society.55 Article 16 guarantees the citizens equal opportunities in the matter of public
employment opportunity or appointment of any office under the State.56 However the
Parliament is competent to make reservations of any post for any backward class of citizen if
it feels that proper representation of the backward class in that particular service is not
made.57 Article 17 abolishes “untouchability” and forbids that this should not be practiced in
the State in any form and anyone practicing would be punished according to the law. 58 Article
18 abolishes the holding of any titles that is not a military or academic distinction. And any
foreign citizen while holding any office of profit under the State cannot accept any title from
a foreign State without the consent of the President. 59Apart from these articles, Article 29(2)
is also considered here. It states that no citizen can be denied admission to educational
institutes which is run or funded by the State on the grounds of sex, religion, race, language,
and any of these. 60

54
Article 14, Indian Constitution.
55
Article 15, Indian Constitution
56
Article 16, Indian Constitution
57
Article 16(4), Indian Constitution
58
Article 17, Indian Constitution
59
Article 18, Indian Constitution
60
Article 29(2), Indian Constitution

25
In the political and the economic fields what is equality? The modern political view of
equality is based on universal adult suffrage or universal adult franchise. This permits the
people who are above a certain age, in the case of India its 18 years, to participate in the
election by casting their vote. This right is given to every citizen without any discrimination
on any grounds. It permits the predominance of certain individuals over others in the actual
work of governing. In the economic sense, equality means a level playing field where
everyone has the access to wealth.61 Economic equality is desirable to a degree but absolute
equality of income is not easy to attain and is will not be possible for many years to come. 62
However it can be kept as a goal which is yet to be achieved in the directive principles of the
state policy.

The citizens will be able to enjoy their rights to equality only if the right kind of atmosphere
to allow the growth of this ideal exists in the State. And for this reason the citizens must be
fully aware of the right provided to them by the State. Unless the people who were suffering
from various inequalities become aware of the right and opportunities provided by the State
they will never overcome the disparities and the State’s protection will be of no help. And the
inequalities as a result of the unequal distribution of wealth will have to be checked and
rectified at least to some if not rectified completely. 63 As Laski says, as long as there exists
inequalities of fortune unequal treatment will also exist. 64 There will be a situation where
some men have many while some men will have too little. 65 Professor Laski says that
political equality is never real unless it is accompanied by virtual economic equality. 66

61
<http://thinkbig-startsmall.ca/en/thinkbig/economic-equality>
62
“The Indian journal of Political Science” JankiKuttiAmma
63
“Equality as a Fundamental Rights in India” P.C . Alexander
64
“A grammar of politics” Harold J. Laski p.161 (1967)
65
“Political ideals: Their nature and development: An essay” Cecil Delisle Burns p.151 (2010)
66
“A grammar of politics” Harold J. Laski p.162 (1967)

26
 CHAPTER- 5
SURVEY AND DATA INTERPRETATION
To know the popular opinion of the people about democracy in India, we conducted a small
survey. The questionnaire was distributed to a sample population selected at random from
various age groups and backgrounds. There were around 50 people who were a part of the
survey. We have collected their answers and interpreted the data in the form of pie charts and
then we found conclusions from it.

Q) Do you think India is a democracy?

Do you think India is a democracy?

4
8

Yes
No
Partially

88

Q) Do you think elections in India are free and fair?

27
 Do you think elections in India are free and fair?

Yes
No
48
52

Q) Do you think sedition laws which as many believe hamper a person’s right to free
speech and expression should exist?

Do you think sedition laws which as many believe

hamper a person’s right to free speech and expression
should exist?

Yes
No
30% 30%
Yes, but they need to be
reformed according to present
times

40%

28
Q) Do you believe that India gives its citizens true right to equality, considering the
reservation policies being in place?

Do you believe that India gives its citizens true right to

equality, considering the reservation policies being in
place ?

20% Yes
No
30%
The reservation policies are in
need of serious reform to nsure
right to equality

50%

CONCLUSION

Hence in this project we have first tried to examine the concept of democracy. Many believe
that democracy is just a form of government like dictatorship or monarchy, but it isn’t so.
After carefully analysing the concept of democracy we have found out that democracy is an
ideal. Democracy, unlike many believe isn’t a political philosophy, it is in fact a social
phenomenon that has social as well as political outcomes. They are many different types of
democracies that have evolved over the time. This is primarily because democracy isn’t a
rigid concept. It is in fact a very flexible concept that adapts itself to the needs of each
country. We studied different types of democracy and waves of democracy. We then moved
to the democracy being followed in India. India as we all know is the largest democracy in
the world, but are we truly democratic.

29
In today’s world, every country claims to be democratic, the primary reason for this is that we
ascribed good qualities with democracy. If a state wants to make its people believe that it is
good and working for the welfare of its people, it claims to be a democracy. That isn’t the
case with India though. India truly is democratic in many senses. The concept of rule of
people wasn’t initially called democracy here, it was instead known as ‘Swaraj’ which also
means self-rule or rule of the people. According to the Economic Intelligence Unit Index,
India is a flawed democracy. Flawed democracies have elections that are free and fair and
basic civil liberties are honoured but they have issues. They for example have an
underdeveloped political culture which is very true in case of India considering the negative
attitude of the people against politics. There is also low level of participation which is also
true in case of India considering politics is considered a mucky business and unless one has a
family member actively involved in a particular party, no one even thinks of joining it. There
are also some issues with the functioning of government due to the corruption prevalent.
Many also argue that there are various restrictions on freedom of speech due to which India
can’t really be called a democracy. But this isn’t the case; our constitution fundamentally
provides us with freedom of speech and expression. Also as times are changing, we can see a
lot of positive changes in the India with regards to guaranteeing democratic freedom.
Recently the Supreme Court in Shreya Singhal v. Union of India struck off Section 66A of
the IT Act which can be seen as positive step against arbitrariness.

The survey conducted by us gave a view about the public’s opinion about democracy and its
indicators in India. After the analysis of the survey, we have reached the conclusion that
almost everyone believes that India is a democracy, but there are a few things that need to
change in order for it to become a perfect or full democracy.

Suggestions for Further Democratizing India

1. Draconian laws like sedition laws which are being misused by the government either
needs to be scraped off or need to be reformed so that there is no scope for ambiguity.
2. Political Participation by youth should be encouraged further so that there is more
representation and more voices of the people be heard.

30
3. Check should be kept on corrupt government officials so that the people do not lose
faith in the democratic system of the country. Stringent action should be taken against
those government officials who get involved in these corrupt practices.
4. Elections mustn’t be fought around a single person. People must be made aware so
that they vote for the person who can do the best for them, instead of creating a larger
than life image of the leader of the party contesting.
5. There should be more transparency in the intra party politics. Political parties should
be made to come under the Right to Information Act, so that a stop can be put to
corrupt practices with regards to funding of the party.
6. More strict measures should be taken against social discrimination of backward
classes, women etc so that everyone gets an equal status in the society.
7. More platforms should be put up for debate and deliberation for discussion of
government policies, so that the actual will and reactions of the people can reach the
government.

31
 BIBLIOGRAPHY

BOOKS

1. “Introduction to the Constitution of India” by Durga Das Basu

2. “A theory of law” by John Rawls

3. “The Rule of law’ as a concept in Constitutional Discourse” by Richard H Fallon Jr.

4. “Politics” by Aristotle.

5. “An introduction to the study of the law of the Constitution” by A.V.Dicey

6. “Road to serfdom” by Friedrick Hayek

7. “The political idea of the rule of law” by Friedrick Hayek

8. “A Grammar of politics” by Harold J. Laski

9. The Indian journal of Political Science” by Janki Kutti Amma

WEBSITES

1. www.yabiladi.com

2. www.4uth.gov.ua

3. en.wikipedia.org

4. http://www.legalserviceindia.com

5. http://essaynparagraph.com

6. www.thehindu.com

7. www.importantindia.com

8. https://sabrangindia.in

9. www.lexisnexis.com

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