Demolishing the frame from outside the Constitution

Source: This post has been created based on the article “Demolishing the frame from outside the Constitution” published in The Hindu on 18^th October 2023.

UPSC Syllabus Topic: GS Paper 2 Indian Polity — Structure, organization, and functioning of the Executive and the Judiciary.

News: This article discusses the recent developments pointing to the undermining of constitutional democracy in India. It also highlights the important role of the judiciary in ensuring a thriving democracy.

Recent Delhi Police raids on the news portal NewsClick and invoking of the Unlawful Activities (Prevention) Act to arrest people have brought the issue of undermining democracy to the fore.

The increasingly vulnerable state of religious minorities due to violence and demonization, and the changes to political financing in the form of opaque electoral bonds, also point to this trend.

What are the essential conditions of a democracy?

1) Decision-making under democratic conditions: Democracy is not just in the principle of majority decision-making. Decisions should also be made under democratic conditions treating all members with equal respect and concern”.

2) Basic values have to be guaranteed: Values such as freedom of speech and expression, freedom of association, etc. contribute to a robust democracy.

The Indian Constitution has created these conditions as part of the basic structure as articulated by the Supreme Court.

How is democracy undermined without a rewriting of the Constitution?

1) Terrorism laws being invoked against journalists: the fundamental right to speech and expression is textually intact but not in practice.

2) Hate speeches against minorities left unchecked: secularism remains intact in words but not in experiences.

3) Opaque electoral funding: democracy is confined to paper.

Why is the judiciary important in preventing this decline in democracy?

What rules and values should govern a society are perhaps decisions best left to the representative body i.e., Parliament, since it is seen as the representative of the people’s will.

But the courts have an obligation to ensure that the integrity of the process of democracy is protected.

This is so because if the democratic process itself is faulty, then questions over the legitimacy of the representative body itself can be raised.

A court, being unelected and outside of this process of popular representation, can ensure the integrity of the democratic process.

What is the power of the courts in India in this context?

The powers of the Supreme Court of India include those to strike down laws and constitutional amendments.

It has even imposed a restriction on the Parliament in amending the Constitution through the basic structure doctrine.

Therefore, it would not be wrong to argue that protecting the democratic process is still at the very core of the Court’s duties.

What should be the way forward?

Turning a blind eye to such profound violations of democratic conditions outside the text of the Constitution and laws would render both the Constitution and the Court without their identities.

The Court’s response to this challenge will determine not only the fate of the people but also that of the Court.