Divested In Democracy

It is often asked that who will guard the guardians. This question reminds of the Latin phrase 'Quis custodiet ipso custodies ? ' penned by the Roman poet, Juvenal. The saying induces one to dwell on the issue as to in whom the ultimate powers should vest. Democracies around the world try to resolve the dilemma by separating powers between various organs that are responsible for governance and administration. The idea is to never give ultimate power to any one group, but to let the interests of each limb of the State collide and conflict with that of the others. The point of it being that absolute power shall not rest in any authority. In that way each bloc will find it in its interest to check and impede the excesses of others, thereby constantly and perpetually inhibiting it from corrupting itself.

 Perhaps born out of the fear of the hackneyed saying "Power corrupts. Absolute power corrupts absolutely", separation of powers between various organs of the State ensures that each is the sentinel against the corrupt tendencies of the other. Man's ingenuity has led him to overcome every obstacle before fulfillment of his aspirations. It has led him to devise schemes to circumvent the restraint sought to be induced by separation of powers. Organs are hands in gloves to look away from each other's foibles. So instead of acting as custodian of the each other’s virtues, agencies of the State obligated to implement laws, have done deals to remain oblivious to the wrongs committed by their counterparts in return for having their own corruption overlooked, thereby ensuring that the law remains a dead letter in thick books.

By and large, however, the system of separation of powers is a befitting recourse for the soundness of any democracy. Notwithstanding the outcomes presently afflicting the administration of the nation, this principle should never be given up, if we intend to preserve the ideals of our democratic Constitution.

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 VIII (On Jammu & Kashmir....)

Avinash: There's always this ongoing hue and cry surrounding the state of Jammu and Kashmir, so much so that the oft quoted 'heaven on earth' is no more remembered for lush green valleys, snow capped hills and mountains or its idyllic beauty, rather it has degraded into an issue hogging the newspapers, news channels or for that matter the politics of our country and those of our neighbour Pakistan.

Me: Yeah, I could not have agreed with you more. Its ironic that what's called the heaven on earth, is now the breeding ground for hatred and relentless violence in some form or another. But if you must know, its not just another state of our country. But a special state and its specialty originates from the pages of our history.

Avinash: I'll be glad to hear about it, if you tell me.

Me: Sure. Under Article 370 of the Indian Constitution, the state of Jammu & Kashmir enjoys as special status. Now to understand & properly appreciate the cause of that special status we have to go back in history.

Avinash: Go on

Me: The state of Jammu and Kashmir was created for the first time with the signing on March 16 of the second Treaty of Amritsar between the British East India company and Raja Gulab Singh of Jammu. It was an addendum to the Treaty of Lahore signed one week earlier on March 9, 1846 which gave the terms of surrender of the Sikh Durbar at Lahore to the British. The Sikhs couldn't pay part of the demand made by the British. Gulab Singh stepped in on their behalf to pay Rs.75,00,000, and in return received Kashmir Valley, part of the Sikh territories, to add to Jammu and Ladakh already under his rule. Gulab Singh accepted overall British sovereignty.

Like India the state of Jammu & Kashmir also became independent on August 15, 1947. The ruler of the state Maharaja Hari Singh did not quite approve of becoming part of either India or Pakistam and sought to preserve the state's independence. But due to numerous grievances harassing the people of the state there was widespread unrest. When people in India saw that independence has been won by the rest of the nation, they raised their voice in demand to end the autocratic rule of the Maharaja and asked for popular method of elections, wherein they would democratically choose their representatives. The Maharaja found himself in a tight spot amidst the chaos. To add to his woes, Pakistan interpreted the absence of any formal agreement between India and Kashmir, to mean that eventually the state would become a part of Pakistan rather than India. It even began pressurizing the Maharaja to join Pakistan. The people of the State were tired of the uncertainty and there occured the 'Poonch Revolution" against the authority of Maharaja. Realizing that he could no longer subjugate the Kashmiri people, Maharaja Hari Singh gave up his dream of independence.

Avinash: So did he accede to India ?

Me: As a matter of fact he did. But only as a means to survive the onslaught of thousands of tribesmen supported by the Pakistani army. His accession was provisionally confirmed by the then Governor of  General of India, Lord Mountbatten. after the Maharaja duly signed the Instrument of Accession on 26th October, 1947, until such time until as the will of the people can be ascertained by a plebiscite (a plebiscite is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal), since Kashmir was recognized as a disputed territory. Thus the state of Jammu & Kashmir became a part of India. The accession was eventually confirmed by the people of the state through their Constituent Assembly on 17th  November, 1957. The Constitution of Jammu & Kashmir says that "the State of Jammu & Kashmir is and shall be the integral part of India".


Avinash: Are you saying that the state of Jammu & Kashmir has its own Constitution despite being a part of India ?

Me: Exactly. You see Article 370 of the Indian constitution, which is of a temporary nature, grants special status to Jammu and Kashmir. Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the State of Jammu and Kashmir has been accorded special status under Article 370. Even though included in 1st Schedule as the 15th state, all the provisions of the Constitution which are applicable to other states are not applicable to J&K. For example, till 1965, J&K had a Sadr-e-Riyasat for Governor and Prime Minister in place of Chief Minister.


Avinash: What else ?

Me: At the time of the commencement of the Constitution, the position of the state was different and therefore Article 370 was inserted, in the Indian Constitution. We all know the President of India is the head of the Executive, but under Article, he can issue orders, acting like a Legislature, to the state of Jammu & Kashmir. The Supreme Court has in a case (Puranlal lakhanpal Vs. President Of India & Mohd. Maqbool Damnoo vs. State of Jammu & Kashmir) held in the year 1972, that the President may by orders extend certain provisions of the Constitution of India to the state of Jammu 7 Kashmir, with such exceptions and modifications as he thinks necessary. Furthermore, as per Article 370 itself, the President can abolish Article 370's application to the state, but not without the recommendation of the Constituent Assembly of Jammu & Kahsmir.

Avinash: Can you tell me the major implications of Article 370.

Me: Well, to put it very succinctly, as per the Article 370 of our Constitution, except for Defence, Foreign Affairs, Finance and Communications,(matters specified in the instrument of accession) the Indian Parliament needs the State Government's concurrence for applying all other laws. Thus the state's residents have lived under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. You open any statute book, most of it will from the beginning declare that the law mentioned in the forthcoming pages shall apply to the whole of India, except the state of Jammu & Kashmir. This holds good for all crucial laws including our Indian Penal Code.

Avinash: What laws of our land apply to Jammu & Kashmir ?

Me: As I mentioned earlier, the President is empowered to extend certain laws, which he deems fit, to the state of Jammu & Kashmir. A few of them are

• The jurisdiction of the Supreme Court extends to the state with the exceptions of Articles 135 & 139
• Emergency can be declared in the state, as enshrined in Article 352 of our Constitution, but only with the concurrence of the state of J & K
• The directive principles of state do not apply to J & K
• provisions relating to freedom of trade, commerce & intercourse shall apply to the state

Avinash: Do all these still apply ?

Me: Yes they do. in fact I have heard that the Centre's interlocutors panel on Jammu and Kashmir has recommended setting up of a constitutional committee to review all central Acts and Articles of the Indian Constitution extended to Jammu and Kashmir. The purpose is to determine how the application of these laws has dented the special status of J&K and curtailed the state government's powers to cater to welfare of its people.

Avinash: Al right. So the state of Jammu & Kashmir is indeed unique for our country.

Me: Yes, it is and I think I 've told you why.


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( The facts and matters mentioned in this post are confined to those aspects of history, politics and law which according to the author are relevant to the present discussion. 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).