Borrowed principles that gave India its democratic soul

The Indian polity has been enriched by making the most appropriate use of best practices from other countries. The ‘due process of law’ for example, is a fundamental legal principle, derived from English common law, enshrined in the United States Constitution and an important concept in India.

It was first introduced by the Supreme Court of India, in 1978, in the case of Maneka Gandhi v the Union of India. It requires that the government act fairly and follow just proce-dures when depriving individuals of life, liberty, or property, as guaranteed by the US Constitu-tion’s Fifth and Fourteenth Amendments. It has two components: procedural - due process, which ensures fair procedures are followed, and substantive – due process, which examines whether the law itself is fair, just, and not arbitrary.

The concept originates from the Magna Carta and serves to protect individual rights from arbitrary government action

The ‘rule of law’ is another fundamental codified principle of legal thought which originated in England in the 17th century, stating that everyone, including the government, is accountable to publicly promulgated, equally enforced, and independently adjudicated laws, which must be consistent with international human rights principles.

It ensures that all citizens are subject to the same laws and protected from arbitrary power, crucial in India because it provides equality for all citizens, prevents arbitrary governmental power, protects individual rights, and ensures jus-tice through an independent judiciary.

‘As by law established’ or ‘as by law enacted’, is yet another important concept, which was bor-rowed from Japan and incorporated in Article 21 of the Indian Constitution.

Meaning that a par-ticular action or procedure has been made valid and legal through the proper legislative process. In other words, a person’s life or liberty can only be deprived of life or liberty, in accordance with the “procedure established by law”.

While all three wings of the state in India have performed admirably in the seven decades and more after independence, it can hardly be gain said that there are no areas where improvement is called for.

So far as the judiciary is concerned, for instance, the alarmingly heavy pendency at all levels of it is a case in point. The concept that justice should not merely be done, but that delay amounts to not doing it at all, though often attributed to British Prime Minister Gladstone, actually has its origins in the Book of Exodus in the Holy Bible.

It also finds place as Clause 40 of the Magna Carta, the document signed by King John of England in early 13th century, establishing the prin-ciple that everyone, including the Crown, is subject to the law. It states, “To no one will we sell, to no one will we refuse or delay, right or justice”. The legendary Martin Luther King Jr also fa-mously used the phrase.

One more important concept emphasising the need for expeditious dispensation of justice is the saying, “Justice should not only be done, but seen to be done”, meaning that the legal process must not only be fair and impartial, but also appear to be so to the public.

This principle, articulat-ed by British politician and judge, Lord Hewart, emphasizes that public perception is crucial for maintaining credibility and trust in the judiciary. For the public to have faith in the justice system, the procedures, transparency, and conduct of all parties must be visibly and demonstrably fair.

And as far as Parliament, and the Legislatures of the states in the country, are concerned, studies have shown that most of the legislation is passed by them with hardly any discussion or debate taking place.

Particularly in Parliament, and in many states where the ruling party enjoys a sub-stantial majority, laws are passed with the whips of the ruling party. Steamrolling the process.

And when it comes to the manner in which government officials are conducting themselves, this columnist recalls, with nostalgia and pride, a senior colleague once telling him that a civil servant is, at the end of the day, a servant of the public rather than that of the government of the day or the party in power.

It is, for instance, seen as an instrument that furthers the system of checks and balances and is effective in holding the executive and legislative branches accountable.

It also enables the judici-ary to interpret laws, and protect the rights of individuals and minorities, especially when the leg-islature is slow to act, apart from providing solutions or creating new laws when there are gaps in the existing dispensation, especially to address an emerging society need.

It has also been criti-cised as an overreach by the judiciary, which is seen as overstepping it bounds and usurping what is rightly the jurisdiction of the legislature, apart from further blurring the already distinct lines of separation between the judiciary and the legislature.

Critics have also argued that the practice undermines the role of elected representatives of the people, with judges rather than political leaders making public policy. Some quarters have also pointed out that, in the face of the already bludgeoning pendency which the judiciary is unable to cope with, this extra burden can very well be done without.

Another very important purpose which the system of separation of powers purports to serve is to prevent situations in our democratic policy characterised by the tyranny of the majority.

Situa-tions that can easily occur, in the absence of the checks and balances that an independent and alert judiciary, and an administration impervious to unscrupulous political interference.

In the context of the need for checks and balances to curb the tendency on the part of agencies to resort to abuse or misuse of authority, I recollect an incident from my experience.

A Chief Minister once, somewhat uncharacteristically, given our relationship, asked why a certain case was pending with me longer than usual. I told him, quite truthfully, that I was thinking of many possible future consequences.

The matter that had come before me for consideration was quite complicated. My life or file was clear about what would have been the right thing to do in the public interest. I had to consider what, for instance, that an audit would say, years later, from the point of view of financial pru-dence.

Or, that matter, a court of law, in the unlikely event of my bona fides being called into question. That was enough to slow down my normally quick pace of decision making. The Chief Minister took the point and left the matter there.

Soon enough, I took a decision in the matter, but was left wondering whether there was not such a thing as overdoing the business of checks and balances. Any system to discourage decision making based on discrimination, malafides, or arbitrariness it should stop at the point when stasis or paralysis sets in. There can, after all, be such a thing as too much of a good thing!

By way of bringing this somewhat serious discussion to a lighthearted conclusion, here is some-thing from my own experience. In one of the major states of the country which had just been carved out of one of the erstwhile British Presidencies, the Chief Minister of the state was inau-gurating the newly established High Court.

And he expressed his appreciation of the coming into being of the new institution, saying, “it gives me great pleasure to preside over the inauguration of an institution, which will ensure, from now onwards, that justice will be dispensed with quick-ly and fairly”!

(The writer was formerly Chief Secretary, Government of Andhra Pradesh)