Rule of Law and Democracy
Friends or Foes ?
by H.R. Khanna *
Cite as : (1990) 1 SCC (Jour) 7
Democracy, it has been said, is the only social arrangement that fully respects the richness of human personality and by respecting it helps to unfold it. All the devices of political machinery parties, platforms and votes are merely instruments for enabling men to live together under conditions that bring forth the maximum gifts of each for the fullest enjoyment of all. Democracy furnishes the political framework within which reason can thrive most generously and imaginatively on the widest scale, least hampered by the accident of personal antecedents and most regardful of the intrinsic qualities of men. At the same time, democracy involves hardship - the hardship of the unceasing responsibility of every citizen. Where there is an attitude of apathy and indifference to the issue affecting the welfare of the society, where the entire people do not take a continuous and considered part in public life, there can be no democracy in any meaningful sense of the term. Democracy is always a beckoning goal, not a safe harbour. It postulates an unremitting endeavour, never a final achievement. No office, it has accordingly been said, is more important than that of being a citizen.
Democracy cannot exist without freedom to dissent, without the right and opportunity to express a view different from the opposite to the view of those in power and thus make people aware of the pros and cons of vital issues affecting their welfare. Free trade in ideas and the absence of suppression of dissent which are so vital for the functioning of democracy, constitute basic traits of liberty. Democracy and liberty are thus considered to be inseparable. Liberty postulates absence of fear. When fear stalks the land, its attendants are servile sycophancy, rank opportunism and nauseating charlatanism and the casualties are the noble impulses of the mind. Where fear is, freedom cannot be.
Liberty, however, is not licence, for, were it to be so, the liberty of some would become the tyranny of many. Liberty cannot rest upon anarchy. It postulates an attitude of give and take, a spirit of accommodation and an awareness that there are others who too are entitled to the same rights. There can be no freedom to destroy freedom. Allegiance to ideals of freedom cannot operate in a vacuum. Those who love freedom must also ensure the prevalence of conditions which are vital for the survival of freedom.
The absence of anarchy and the need for an orderly society highlights the importance of the rule of law. Law represents a code of conduct and self-discipline which a nation speaking through its representatives adopts for itself and enforces through the machinery of courts. Law is no more than formal expression of the tolerable compromise that we call justice without which the rule of tooth and claw must prevail. Democracy ensures the most favourable conditions for the supremacy of the rule of law. It contains essential safeguards against arbitrariness and provides effective machinery for redress of grievances. The likelihood of injustice under a democracy is much less than under systems where civil liberties are suppressed and there is absence of democratic norms. Man's capacity for justice, it has been said, makes democracy possible, but man's inclination to injustice makes democracy necessary.
It would thus appear that there is a close nexus between democracy, liberty and rule of law. They are indeed the three faces of the trinity which presides over the destiny of all liberal societies. Each one of them is vital for the survival of the other. The demise of one would prove fatal for the other two.
Democracy is a delicate form of government which rests upon conditions which are rather precarious. It makes certain assumptions about the capacities and virtues of men. It requires a willingness of the parties and their members to abide by certain rules of the game. It also calls for some measure of restraint to be exercised and a willingness to abide by a code of self-discipline. At the same time, it has been recognised that man may be a little lower than the angels, he has not shaken off the brute. His passions, his thinking, his body carry their origin within them and he fails if he vain-gloriously denies them. His path is strewn with carnage. The murderer lurks not far beneath to break out from time to time. To curb and control the brute within and to prevent the degeneration of society into a state of tooth and claw, we need the rule of law and the agency to enforce it. Such an agency is furnished by the courts. Criminal law has, therefore, come to be looked upon as a most effective instrument of social defence.
We may now advert to the harsh realities on ground level. Despite all the professed abhorrence of the use of muscle power in the course of elections, a very large number of candidates do take aid of that. It may be that some make unabashed use of it with a view to intimidate voters for securing their votes while many others take the help of muscle power, not so much to apply coercion to the votes in the free exercise of their franchise but only as a matter of defensive strategy against the muscle power of rival candidates, the effect of all that is that the use of muscle power has become a regular feature of the electoral process. The intellectuals may decry this practice, the newspapers may carry long articles in condemnation of it, the public spirited persons may describe it to be a blot on the process of free and fair elections, the fact remains that the vice exists and one cannot run away from the harsh reality. Incidents of large scale violence in a number of constituencies during the recent elections is a grim reminder of this malady in body politics.
It is also a fact that the bigger a person is a "Goonda", the greater is considered to be his usefulness and value during the course of elections. Because of that the politicians take help of these anti-social elements while fighting the election. The electoral process thus leads to close links between the anti-social elements and the politicians. The consequence of that is that when the anti-social elements get into trouble with the law enforcement agencies they invariably look to the politicians to extricate them out of their difficulties. The politicians on their part find it difficult to resist the demands of the anti-social elements to whom they are indebted because of the help rendered by them at the time of elections. In fact the help rendered by the politicians to the anti-social elements, when the latter are in difficulty, becomes a kind of quid pro quo for the support given by the anti-social elements to the politicians at the time of elections.
This apart, the close proximity of anti-social elements with the local politicians dampens and often acts as a deterring factor for the officials of the law enforcement agencies from proceeding against those anti-social elements and taking strong action against them. During recent years, however, we have come across a new strategy being adopted by the anti-social elements. Many of them are swayed by the idea that if their grip over substantial section of the electorate or capacity for booth capturing and rigging or use of other unfair means at point of bayonet can ensure the election of others, why should they not use that grip or capacity for ensuring their own election as members of the legislature? According to newspaper reports as many as about 100 elected members in a State Legislature were those with criminal history-sheets. We can well imagine the plight of policemen while dealing with them. Many policemen in the circumstances would consider discretion to be the better part of valour and turning a blind eye to nefarious acts of certain category of persons, very convenient modus operandi. Experience also tells us, that once a person gets elected to the legislature, the election secures for him not only some kind of reprieve from legal processes for his past activities but also affords him a virtual immunity from further proceedings against him for infraction of criminal law. It is no doubt true that this is not legally permissible and law does not countenance such a state of affairs, but ways are always found to circumvent the law.
One other distressing feature emerging from the above state of affairs has been the rampant interference by local politicians in the course of investigation of crime. That there is such interference is a stark reality which cannot be denied or swept under the carpet. There can also be no doubt that unless there be efficient investigation resulting in procurement of credible evidence, the prospect of securing the conviction of the actual culprits becomes extremely remote. This has led to a situation of increased incidence of acquittals in major criminal cases involving use of violence.
We must also bear in mind that once an impression comes to prevail that it is difficult to secure the conviction of the actual culprits in a court of law, the victims of the offence or their close relatives, would look to extra-legal methods to settle scores with the culprits. Such a situation would necessarily be a precursor to collapse of administration of criminal justice and result in a state of chaos and anarchy. Every effort has, therefore, to be made to eliminate or in any case minimise political and other extraneous interference in the investigation of the crimes. Unless we can do that, the rule of law for which we have such ideological affinity would suffer grievous casualty and be subjected to severe strain.
We are today witnessing the strange phenomenon and paradox that while on ideological plain democracy is supposed to strengthen the rule of law and the administration of criminal justice, in actual practice, the electoral process which is an integral part of democracy is undermining the rule of law and due administration of criminal justice. This must be put to an end. The traditional concept in all civilised liberal nations is that democracy and rule of law are close allies of each other. It has to be the effort of all well-meaning persons to ensure that their kinship is not weakened and that each of them continues to lend strength to the other.