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Democracy And The Law

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Pankaj Kumar Dua B.A.LL.B. (Hons) 6th Sem

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Democracy is not a mere form of government. It is a type of state as well as an order of society. Some tried to define democracy
According to J.R.Lowell: -
"Democracy is only ‘an experiment’ in government."
According to Abraham Lincoln: -
"Democracy is a government of the people, by the people, and for the people."
According to Seeley: -
"Democracy is a government in which every one has a share."
In the Dictionary Definition,
"Democracy is a government by the people in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system."

A democratic government implies a democratic state but a democratic state does not necessarily mean a democratic govt. A democratic state mean is that the community, as a whole possesses sovereign authority and maintains ultimate controlling and dismissing a government.

In addition to being a form of government and a type of state, democracy is an order of society. A democratic is one in which the spirit of equality and fraternity prevails. Such a society does not necessarily imply a democratic state or a democratic government. The meaning of democracy is not exhausted even after interpreting it as a form of government, a type of state, and an order of society. Democracy has made great strides in the social and political fields, it has made very little advance in the economic or industrial field and social as the next step in democracy.

Democracy embodies a moral principle. It means that every man has value. It enshrines the truth that government does not exist for its own sake, but for the enrichment of personality. No government has a right to be called a democracy if it does not bring out the best in man.

Present day experience shows that democracy of the pure and direct type is an absolutely unattainable ideal. The only type, which is possible for us today, is the indirect or representative type. According to it the actual administration of affairs is taken from the hands of the people and is vested in delegates. The nearest approach that we find to direct democracy is some modern states is in the form of referendum, initiative, recall democracy and parliamentary. There are different types of democratic governments today: -
1. They can exist under republic or a nominal monarchy
2. They can exist under a rigid or flexible constitution.
The value of personality, which is the crux of democracy, does not mean that all individuals are alike or equal.
Democracy in practice is the hypothesis, that all men are equal which is used in order to discover who are the best.

The Austin Theory of Law does not fit in this as the view of democratic society as the Austin theory in inadequate as this theory only gives a formal view of the nature of law without explaining its substance. There has been a growing movement toward a less formal and more realistic jurisprudence the relation between sociology and law as grown ever intimate and jurisprudence of formal concept now satisfy few save the veterans of an earlier age to say that the law is a sovereign merely explains the mode of its formulation. The content of the law can be known only by a reference to the economic relations of a given society. Freedom and democracy are often used interchangeably, but the two are not synonymous. Democracy is indeed a set of ideas and principles about freedom, but it also consists of a set of practices and procedures that have been molded through a long, often tortuous history. In short, democracy is the institutionalization of freedom. For this reason, it is possible to identify the time-tested fundamentals of constitutional government, human rights, and equality before the law that any society must possess to be properly called Democratic.

So far as the preamble of our Indian constitution is concerned it declares India to be a ‘sovereign, socialist, secular, democratic republic’. The term democracy in its broader sense embraces in addition to political democracy also social and economic democracy. The term democratic is used in this very sense in the preamble. It is republic because the head of the state is not a hereditary monarch. In republic the political sovereignty vests in the people and the head of the state is only a person elected by the people for a fixed term. In our constitution there is a president who is the head of the executive and who is elected, as opposed to hereditary, and hold office for a fixed term of five years. The term democratic indicates that the constitution has established a form of government, which gets its authority from the will of the people. The rulers are elected by the people and are responsible to them. The democratic set up can be of two types:-
1. Direct &
2. Indirect.

In a direct democracy the legal and political sovereignty vests in the people .In the indirect system of democracy, it is the representatives of the people who exercise the power of legal as well as political sovereignty. The electorate chooses their representatives who carry on the government. It is for this reason that this kind of democracy is called representative democracy.
"When a representative democracy operates in accordance with a constitution that limits the powers of the government and guarantees fundamental rights to all citizens, this form of government is a constitutional democracy. In such a society, the majority rules, and the rights of minorities are protected by law and through the institutionalization of law."

Democratic Society
Democracy is more than a set of constitutional rules and procedures that determine how a government functions. In a democracy, government is only one element coexisting in a social fabric of many and varied institutions, political parties, organizations, and associations. This diversity is called pluralism, and it assumes that the many organized groups and institutions in a democratic society do not depend upon government for their existence, legitimacy, or authority.
Thousands of private organizations operate in a democratic society, some local, and some national. Many of them serve a mediating role between individuals and the complex social and governmental institutions of which they are a part, filling roles not given to the government and offering individuals opportunities to exercise their rights and responsibilities as citizens of a democracy.

These groups represent the interests of their members in a variety of ways--by supporting candidates for public office, debating issues, and trying to influence policy decisions. Through such groups, individuals have an avenue for meaningful participation both in government and in there own communities.

The Pillars Of Democracy
 Sovereignty of the people.
 Government based upon consent of the governed.
 Majority rule.
 Minority rights.
 Guarantee of basic human rights.
 Free and fair elections.
 Equality before the law.
 Due process of law.
 Constitutional limits on government.

Rights
Inalienable Rights
We hold these truths to be self-evident, that all men are created equal, that their Creator endows them with certain inalienable rights that among these are life, liberty and the pursuit of happiness. That to secure these rights, government is instituted among men, deriving their just powers from the consent of the governed.
Inalienable rights include: -
1. Freedom of speech and expression,
2. Freedom of religion and conscience,
3. Freedom of assembly, and
4. The right to equal protection before the law.

This is by no means an exhaustive list of the rights that citizens enjoy in a democracy. Democratic societies also assert such civil rights as the right to a fair trial, but it does constitute the core rights that any democratic government must uphold. Since they exist independently of government, these rights cannot be legislated away, nor they are subject to the momentary whim of an electoral majority.

The detailed formulation of laws and procedures concerning these basic human rights will necessarily vary from society to society, but every democracy is charged with the task of building the constitutional, legal, and social structures that will ensure their protection.

Freedom of Speech and Expression
In Indian Constitution Freedom of speech and expression that is enriched in article 19 which is the lifeblood of any democracy. To debate and vote, to assemble and protest, to worship, to ensure justice for all, these all rely upon the unrestricted flow of speech and information. "Democracy is communication: people talking to one another about their common problems and forging a common destiny. Before people can govern themselves, they must be free to express themselves."

Democracy depends upon a literate, knowledgeable citizenry whose access to the broadest possible range of information enables them to participate as fully as possible in the public life of their society. Ignorance breeds apathy. Democracy thrives upon the energy of citizens who are sustained by the unimpeded flow of ideas, data, opinions, and speculation.

But what should the government do in cases where the news media or other organizations abuse freedom of speech with information that, in the opinion of the majority, is false, repugnant, irresponsible, or simply in bad taste? The answer, by and large, is nothing. It is simply not the business of government to judge such matters. In general, the cure for free speech is more free speech. It may seem a paradox, but in the name of free speech, a democracy must sometimes defend the rights of individuals and groups who themselves advocate such non-democratic policies as repressing free speech. Citizens in a democratic society defend this right out of the conviction that, in the end, open debate will lead to greater truth and wiser public actions than if speech and dissent are stifled.

The corollary to freedom of speech is the right of the people to assemble and peacefully demand that the government hears their grievances. Without this right to gather and be heard, freedom of speech would be devalued. For this reason, freedom of speech is considered closely linked to, if not inseparable from, the right to gather, protests, and demand change. Democratic governments can legitimately regulate the time and place of political rallies and marches to maintain the peace, but they cannot use that authority to suppress protest or to prevent dissident groups from making their voices heard.

Freedom and Faith
Freedom of religion (article25), or more broadly freedom of conscience, means that no person should be required to profess any religion or other belief against his or her desires. Additionally, no one should be punished or penalized in any way because he or she chooses one religion over another or, indeed, opts for no religion at all. The democratic state recognizes that a person's religious faith is a profoundly personal matter.

In a related sense, freedom of religion means that no one can be compelled by government to recognize an official church or faith. Children cannot be compelled to go to a particular religious school, and no one can be required to attend religious services, to pray, or to participate in religious activities against his or her will.

Citizenship: Rights and Responsibilities
Democracies rest upon the principle that government exists to serve the people; the people do not exist to serve the government. In other words, the people are citizens of the democratic state, not its subjects. While the state protects the rights of its citizens, in return, the citizens give the state their loyalty. Under an authoritarian system, on the other hand, the state, as an entity separate from the society, demands loyalty and service from its people without any reciprocal obligation to secure their consent for its actions. The citizens in a democracy are exercising their right and responsibility to determine who shall rule in their name.

Similarly, citizens in a democracy enjoy the right to join organizations of their choosing that are independent of government and to participate freely in the public life of their society. At the same time, citizens must accept the responsibility that such participation entails: educating themselves about the issues, demonstrating tolerance in dealing with those holding opposing views, and compromising when necessary to reach agreement.

Citizenship in these examples entails a broad definition of rights and responsibilities, since they are opposite sides of the same coin. An individual's exercise of his rights is also his responsibility to protect and enhance those rights for himself and for others. Even citizens of well-established democracies often misunderstand this equation, and too often take advantage of rights while ignoring responsibilities.

"Democracy is often understood as the rule of the majority, and rights are understood more and more as the private possessions of individuals and thus as necessarily antagonistic to majoritarian democracy. But this is to misunderstand both rights and democracy."

The essence of democratic action is the active, freely chosen participation of its citizens in the public life of their community and nation. Without this broad, sustaining participation, democracy will begin to wither and become the preserve of a small, select number of groups and organizations."Democracy is a process, a way of living and working together. It is evolutionary, not static. It requires cooperation, compromise, and tolerance among all citizens. Making it work is hard, not easy. Freedom means responsibility, not freedom from responsibility."

Democracy embodies ideals of freedom and self-expression, but it is also clear-eyed about human nature. It does not demand that citizens be universally virtuous, only that they will be responsible.

Human Rights and Political Goals
In recent times, there has been a tendency, especially among Indians, to expand the list of basic human rights. To fundamental freedoms of speech and equal treatment before the law, these groups have added rights to employment, to education, to one's own culture or nationality, and to adequate standards of living.

Governments protect inalienable rights, such as freedom of speech, through restraint, by limiting their own actions. Funding education, providing health care, or guaranteeing employment demand the opposite: the active involvement of government in promoting certain policies and programs. Adequate health care and educational opportunities should be the birthright of every child. The sad fact is that they are not, and the ability of societies to achieve such goals will vary widely from country to country. By transforming every human aspiration into a right, however, governments run the risk of increasing cynicism and inviting a disregard of all human rights.

Basic Human Rights
 Freedom of speech, expression and the press.
 Freedom of religion.
 Freedom of assembly and association.
 Right to equal protection of the law.
 Right to due process and fair trial.

The Rule Of Law
Equality and the Law
The right to equality before the law, or equal protection of the law as it is often phrased, is fundamental to any just and democratic society. Whether rich or poor, ethnic majority or religious minority, politically of the state or opponent, all are entitled to equal protection before the law.

The democratic state cannot guarantee that life will treat everyone equally, and it has no responsibility to do so. However, writes constitutional law expert John P. Frank, "Under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people."

No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by thess people, then have to obey them, both law and democracy are served.

Due Process
The criminal justice system holds power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, and been tortured, exiled and executed without legal justification--and often without any formal charges ever being brought. No democratic society can tolerate such abuses.

Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit, not secret, arbitrary, or subject to political manipulation by the state.

Constitution
The rock upon which a democratic government rests is its constitution--the formal statement of its fundamental obligations, limitations, procedures, and institutions. The constitution of the country is the supreme law of the land, and all citizens, Prime minister to peasants alike, are subject to its provisions. At a minimum, the constitution, which is usually codified in a single written document, establishes the authority of the national government, provides guarantees for fundamental human rights, and sets forth the government's basic operating procedures.

This pattern of constitutional evolution takes place in every democracy. In general, there are two schools of thought about the process of amending, or changing, a nation's constitution. One is to adopt a difficult procedure, requiring many steps and large majorities. As a result, the constitution is changed infrequently, and then only for compelling reasons that receives substantial public support. Constitution is a brief statement of the general principles, powers, and limits of government, together with a more specific listing of duties, procedures, and, in the Bill of Rights, the fundamental rights of individual citizens.

A much simpler method of amendment, which many nations use, is to provide that any amendment may be adopted by approval of the legislature and passed by the voters at the next election. Constitutions able to be changed in this fashion can be quite lengthy, with specific provisions that differ little from the general body of legislation.

Free and Fair Elections
Elections are the central institution of democratic representative governments. Why? Because, in a democracy, the authority of the government derives solely from the consent of the governed. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections. Voting in the election of public officials is the most visible and common form of participation in modern democracies and also the most fundamental. The ability to conduct free and fair elections is at the core of what it means to call a society democratic.

Democratic Government
Democracy and Power
For critics, a common misapprehension is that democracies, lacking the power to oppress, also lack the authority to govern. This view is fundamentally wrong: Democracies require that their governments be limited, not that they be weak. Democracies have also demonstrated remarkable resiliency over time and have shown that, with the commitment and informed dedication of their citizens, they can overcome severe economic hardship, reconcile social and ethnic division, and, when necessary.
It is the very aspects of democracy cited most frequently by its critics that democratic decision-making in a large, complex society can be a messy, grueling, and time-consuming process. But in the end, a government resting upon the consent of the governed can speak and act with a confidence and authority lacking in a regime whose power is perched uneasily on the narrow ledge of military force or an unelected party apparatus.

Checks and Balances
One of the most important contributions to democratic practice has been the development of a system of checks and balances to ensure that political power is dispersed and decentralized. It is a system founded on the deeply held belief that government is best when its potential for abuse is curbed and when it is held as close to the people as possible.

The motivations of voters are as numerous as the societies and interests that they represent. Voters obviously cast their ballots for candidates who will represent their interests, but other factors influence voter preference as well. Party affiliation is one: Individuals who identify strongly with a political party are much more likely to vote than those who identify themselves as independent. Indeed, in systems of proportional representation, voters may only be able to vote for a political party, not for individual candidates.

Protest
In a democratic society, citizens have a right to gather peacefully and protest the policies of their government or the actions of other groups with demonstrations, marches, petitions, boycotts, strikes, and other forms of direct citizen action.
Direct action is open to everyone in a democracy, but it traditionally has been used by oppressed, disadvantaged, or minority groups who feel excluded from other means of influencing government policies. Such protests have always been part of democratic society.

Conclusion
Democracy itself guarantees nothing. It offers instead the opportunity to succeed as well as the risk of failure. The promise of democracy is "life, liberty and the pursuit of happiness."
Democracy is then both a promise and a challenge. It is a promise that free human beings, working together, can govern themselves in a manner that will serve their aspirations for personal freedom, economic opportunity, and social justice. It is a challenge because the success of the democratic enterprise rests upon the shoulders of its citizens and no one else.
Government of and by the people means that the citizens of a democratic society share in its benefits and in its burdens. By accepting the task of self-government, one generation seeks to preserve the legacy of individual freedom, human rights, and the rule of law. In the end, we get the government we deserve.

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The  author can be reached at :
pankaj15_dua@legalserviceindia.com
 

 

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ISBN No: 978-93-82417-01-9