Speeches By Sri Ram Jethmalani - II

Do you agree that we need more of such speakers / members in our Parliament than the ones who simply induce chaos and disturbance ?

Upright, Fearless and Eloquent

There are unfortunately a very few such examples in our Parliament.

An Imperfect Ally - Democracy

This is the destiny of democracy, as not all means are acceptable to it and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. ”

- Justice Aharon Barak, Supreme Court of Israel 

In the wake of long perpetual assaults on democratic ideals, one would have us believe that perhaps India is undeserving of democracy. Perhaps its citizens are too callous to appreciate and revere the priceless gifts of liberty and freedom that come wrapped with democracy. I've often heard my peers remark in sheer rage, "Is desh ka kuch nahin ho sakta...Aur Banao democracy ise... Are humein democracy nahin, military rule ki zaroorat hai (Nothing can save this country...keep hailing democracy. The fact is that we deserve military rule and not democracy). It doesn't require a remarkable deal of aptitude to understand the reasons behind such hopelessness. Since the time we attained sovereignty and independence, most of those who had been since conferred with power, have abused it to some extent. The range of such abuse spans from having a free meal to stashing away billions in benami accounts. Despite lack of complete official confirmation of such abuse people are aware, more than ever that persons in whom they rested their faith for ushering in a better tomorrow, have betrayed mass expectations for their individual gains.
Democracy is the only form of governance in which the will of people is supreme. Therefore there exists a constant process of appeasement of popular sentiments in the form of minority wooing & election oriented policy making. But it's ironic that the real purpose for which people choose representatives is totally belied. That includes, though not limited to, improvement in welfare measures, education, healthcare, economic empowerment, security and justice delivery system. It's not difficult to understand that if pleasing people is what it takes to remain in power, why aren't beneficial steps being taken in order to improve their quality of life. It's indubitably because of the reason that taking such steps would naturally entail expenditure of Govt. revenues and other State income, due diligence, sincerity and a completely corruption free work culture, which at least in the current scenario seems as impossible as cheating death.

Another essential feature of any democracy is its justice delivery mechanism, which in our country, has suffered an erosion of faith. This is mainly because of the delay in conclusion of Court cases and the seemingly large number of apparent criminals escaping punishment. But most people misunderstand the causes behind these maladies. (For a discussion on this issue read this ). Be that as it may, in a democracy, the manner in which justice is administered by Courts rests largely on the principles of natural justice. In such systems the thrust is on two major norms. Firstly, no one shall be condemned without having been provided with an opportunity of making his defense and secondly no one shall be a judge of his own cause. While the former ensures that every man has a chance of being heard the latter prevents possibilities of bias creeping into the judicial process. In according opportunity of being heard, the person accused, is provided with all fair & reasonable means to make such a defense. It is this particular scope, that has been the subject of all kinds of exploitation and abuse by persons thriving on ingenuity. One cannot help but lament at the cause for which such a facility was accorded to accused persons in the first place and the resultant manipulation that it has been made subject to at the hands of the cunning & the crafty. A hundred guilty may go free but one innocent man should not be punished. This has been the code of the entire judicial process that our Constitutional drafters created. Obviously they had an oppressed, exploited and a truly innocent accused person in mind while injecting this principle into the entire system. Little did they know that the men in whose hands they were bequeathing the freedom were the least capable of handling it.

I often see elite, erudite scholars analyzing hundreds of issues concerning the welfare of our nation. They are ready with theories, analyses for each situation. The media shows a keen interest in creating an optimum environment where there'd be free exchange of such stimulating thoughts. So many scandals have been unearthed. So many politicians have been brought under the scanner. Yet they prevail in the end. They manage to climb back to power. That too by votes, not by magic. There could be many causes for that. One of the startling causes however remains the apathy and indifference of the people who listen to those debates and discussions of those scholars and happily wake up the next morning and embark themselves upon their private pursuits. On the contrary people who matter to say the least - tribals, uneducated minorities living in remote areas, right wing, left wing, fanatics, poor farmers and villagers, never hear these debates. They are ultimately the cause for the electoral outcome.

However, despite such difficult scenarios, democracy remains the best form of governance. The simple cause  being the existence of regard for civil liberties and fundamental rights of its subjects, in a democracy. It is needless to say that when tremendous significance is ascribed to rights and liberties, there's bound to be some collateral damage in the form of hijacking of such facility. That's the paradox of the times we live in and the irony of the lives of so called the aware and educated mass. However in the recent times Anna ji may have captured the imagination of these sections of our community which, hitherto only indulged in sulking but doing nothing about it. They finally gave up their bread earning pursuits, may be for a few days, and joined a mass agitation. People who know, know, that this may actually end up solving nothing, for the real cause of worries lies somewhere else. However it did shake the power corridors out of the notion that the common man is not only living to earn his daily bread. Given the right galvanizing factor, he too can stand up and cause commotion for his rights. This again is another beauty of democracy. It offers a chance at redemption, at gaining for lost stuff, for standing and shouting for our rights. Had we not been a democracy, Anna ji, like Aung San Suu Kyi, might have been thrown under house arrest indefinitely.

A few years ago, when the Hon'ble Supreme Court was seized with adjudication upon issue whether narco analysis and brain mapping procedures used by investigating agencies on suspects for extraction of information, is valid or not, the Court decided against the use of such methods. Though there was widespread frustration among investigative agencies, including the CBI on having to relinquish this technique of investigation, it cannot be denied that involuntary administration of narco analysis on criminals is against their fundamental right to life and liberty and their right against self incrimination. The Court held that narco-analysis test, polygraph test and compulsory brain mapping of the accused persons are violative of Article 20(3) and Article 21 of our Constitution. Many people may disagree with this verdict. But that's the way democracy is expected to function. The Supreme Court while so deciding took into consideration various studies which show that what a person may speak during the test may not be entirely credible, since there is a possibility that drug induced revelations may not necessarily be true. Being aware that its decision will cause serious discontentment among investigative agencies, the Hon'ble Court quoted the aforementioned statement of Justice Barak, a renowned Judge of the Israeli Supreme Court. The full judgment can be read here .

So the point is, that despite serious setbacks, democracy is too precious to be substituted by any other form of governance. It gives us the chance to oppose, to speak freely, to raise our voice to criticize and to protest. No country is perfect. What's therefore important is that there should be a constant effort towards achieving that perfection. Democracy affords that opportunity. There are a few other forms of governance in various countries. Experience has proven that they are not ideal either, despite not being democracies. But unlike in a democracy, their civilians have the least scope of raising their voices and protesting against what they feel is wrong. So also it is often seen that there is always a perpetual inclination towards democracy in non democratic countries but not the vice versa. The irresistible deduction therefore is that no matter how frustrating it could be to witness democratic ideals being manipulated and used for perpetrating wrongs, it inevitably remains the best choice of administration, if not for anything else, for the opportunity it accords for making things better without having to resort to non violent methods.

The Conversation - IX (On How The President of India Is Elected)

Avinash: (Fuming) That was embarrassing !!

Me: What, my dear friend, was embarrassing ?

Avinash: Nothing

Me: Come on, spit it.

Avinash: How am I supposed to know that the election process of our President is entirely different from that of our MPs.

Me: A-ha

Avinash: Right in front of the neighbours my father asked me to go back to High School and brush up on my social studies.

Me: Ok ok, chill now.

Avinash: I challenged back that I'll be telling him about the whole process of President's election by evening.....& I'm looking for some help in that direction. Would you mind ?

Me: Not at all. Have I ever hesitated in telling you about any information you've sought for ?

Avinash: Yeah. I know. Thanks for that. But this time it's really important. Download the whole information into my head, brother.

Me: Ok. Now here's the thing about the presidential election that you first need to know. The President is not voted for directly by the people as happens in the general elections. Rather he is elected by an indirect voting system, that is by an electoral college, in accordance with the system of proportional representation by single transferable vote...

Avinash: Wait,wait, wait. What's an electoral college ?

Me: It consists of three groups of voters:-



a) the elected members of both Houses of Parliament

b) the elected members of the Legislative Assemblies of the states
c) the elected members of the Legislative Assemblies of the Union Territories

Avinash: This means that the nominated members of the Parliament or the State Assembly do not have any voting rights in the election of the President.

Me. That's correct.

Avinash. Alright, go on

Me: Article 55 of our Constitution mandates that, as far as practicable, there shall be uniformity of representation of different states in the election, in terms of the population and the total number of elected members of the Legislative Assembly of each state. It also requires that there shall be parity maintained between the states as a whole and the Centre. In this way the President shall be a representative of the nation as well as that of the people of different states as well.

Avinash: How is that achieved ?

Me: To achieve this parity a formula is adopted, which as follows:-

i) every elected member of the State Assembly shall have as many votes as there are multiples of one 

   thousand in the quotient obtained by dividing the population of that state by the total number of elected  

   members in that Assembly 

ii) if by this division, the remainder is 500 or more, it' ll be counted as one and the vote of each member is 

    increased by one

For example let's say that the population of State X is 2, 08, 49, 840 and the number of elected members of its Legislative Assembly is 208. Then the number of votes in the hand of each elected member of X's Legislative Assembly is (2, 08, 49, 840 / 208) / 1000 = 100.Likewise, the number of votes to be cast by the entire State Legislative Assembly of X is 208 x 100 = 20, 800.

Similarly the voting calculation of Members of the Parliament is as follows:-

• the number of votes that each elected MP is entitled to cast is obtained by dividing the total number of votes in the State Legislative Assemblies of all states (as obtained by the abovementioned formula) by the total number of elected MPs of both houses
• if by this division, the remainder exceeds 1/2, it'll be counted as one.

For example, in India, suppose the total number of votes of elected members of all the State Legislative Assemblies comes to 74, 940 & the total number of elected MPs in the Parliament is, say, 750. Then each elected MP of the parliament shall be entitled to cast 74, 940 / 750 = 99 23/25 and since 23 / 25 is greater than 1/2, it'll be counted as 1 and added to 99 thus making the votes of each elected MP as 100.

This is how parity is achieved between the votes of State Legislative Assemblies' members and members of Parliament.

Avinash: Tell me one thing. Why such an indirect system of voting for the election of the President is there instead of the simple system of direct voting by the people all over the country.

Me: You must understand one thing first. That the President of India is only a nominal head. The real power vests in the Council of Ministers who enjoy the popular support i.e. they are elected by direct voting of the people of this country. If you remember one previous conversation that we had, I'd explained how our President cannot act in defiance of the recommendations and advise of the Ministers in the Parliament. In short, he can only do such things, that are approved by the Council of Ministers. Therefore it is pointless to incur such humongous expenditure of time and money for his election. Furthermore if the President does not have real powers, which actually vests in the Ministry, then it would be contradictory to ask the common man to elect him when the person he elects has no real power.

Avinash: You used the expression "proportional representation by single transferable vote". Care to explain.


Me: The election takes place in consonance with the system of proportional representation by single transferable vote by secret ballot system. The secret ballot is a voting method in which a voter's choices in an election or a referendum remain anonymous. Proportional representation system means that the number of seats won by a candidates is proportionate to the number of votes received. The single transferable vote is a voting system designed to achieve proportional representation through preferential voting. Under this method, an elector's vote is initially allocated to his or her most preferred candidate, and then, after candidates have been either elected or eliminated, any surplus or unused votes are transferred according to the voter's stated preferences.

Let me now explain you these concepts in the present context.

Let us suppose that there are four candidates running for President - A, B, C & D and that the total number of votes available are 1500. A candidate must secure at least 7, 501 votes i.e. more than half the first preference votes. to be declared elected. In the first round of count if no one secures this mark of votes then the candidate with the least votes will be eliminated. Then the second preference votes will be transferred to the remaining candidates. as per the preference given by the voters. This process will be repeated till one candidate secures more than half the total votes. The candidate who shall so secure, will be declared as the winner.

Avinash: Its a little mathematical, isn't it !!!


Me: It sure is. Also remember a few more relevant facts.


Avinash. Tell me


Me:  Article 58 of the Constitution sets the principal qualifications one must meet to be eligible for the office of the President. He or she must be:

• A citizen of India and
• Of 35 years of age or above and
• Qualified to become a member of the Lok Sabha

A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.

Certain office-holders, however, are permitted to stand as Presidential candidates. They are:

• the current Vice President.
• the Governor of any State.
• a Minister of the Union or of any State (Including Prime Minister and Chief Ministers)

In the event that the Vice President, a State Governor or a Minister is elected President, they are considered to have vacated their previous office on the date they begin serving as President.

On being successfully elected, the President shall be administered his oath by the Chief Justice of India and in his absence, the senior most Judge of the Supreme Court. Once elected, he shall hold his office for a tenure of five years. Even after the expiry of five years, he may hold his office until his successor enters thereupon. He is also eligible for re election and unlike the President of USA, who cannot be elected as President more than twice, he can be re elected any number of terms. The President of India can be removed by the Parliamaent by a process of impeachment on the ground (s) of violation of our Constitution.


Avinash: Thanks a lot bro !! You sure saved my face.


Me: You are welcome.

                                                                        **********


(The facts mentioned in this post are based on the author's reasearch. The author does not claim that they depict the entire facts as they stand, concerning the topic, nor is it denied that there could be lapses in the depiction. The readers are sincerely advised to make a detailed study of the matter for holistic information)