By the time this article appears in print, General Elections would have been completed and the new government would have taken the reins. Some of you have would be reflecting on the recently concluded elections and probably somewhere in the corner of your mind a question might have cropped up: “Is too much of democracy good for our country?” Well, you are not the only one thinking on those lines. To pose that question has become an “in-thing” in rarefied discussion of academia these days.  This is largely due to an influential work by Fareed Zakaria, a noted writer and editor of Newsweek, titled “The Future of Freedom” wherein he persuasively argues that the need of the hour is not more democracy, but less. Too much of democracy, he says, is hampering the efficient functioning of various institutions that are required for vibrant economy and for protection of individual rights of speech, property, and religion. For Fareed Zakaria, the remedy for too much of democracy lies in delegation of authority to undemocratic / un-elected bodies.  He refers to the efficient functioning of Federal Reserve and the Supreme Court in the United States, both autonomous and un-elected, to strengthen his argument. We might brush away the argument by saying that his prescriptions are for the West or for the developed countries. But Zakaria emphatically states: “In developing countries the need for delegation is even greater…”

Is this so? Are we victims of too much of democracy? Can un-elected bodies perform better than elected bodies in public domain? Let us explore the argument by examining the functioning of the Election Commission (EC) and the Supreme Court in India.

Today, there is an uncritical acceptance of all the actions performed by the Election Commission and the Supreme Court. This is in no way meant to undermine the services rendered by the Election Commission and the Supreme Court. The Election Commission and the judiciary are among the guardians of Indian democracy. The impartiality of the Election Commission has never been in doubt. Similarly, the judiciary in India has been at the forefront of expanding the domain of fundamental rights, which is a necessary pre-condition for vibrant functioning of democracy. The March 13th judgement of the Supreme Court mandating disclosure of candidate details is a case in point. Similarly, the recent directive in Best Bakery case is a blow for strengthening rule of law and accountability. Yet, there is a need to make an honest assessment of these institutions.

Independence of judiciary is integral to our democratic landscape. Few democracies have witnessed such a strong judiciary as in India. In fact, in recent years the judiciary has become its own appointing authority and is unaccountable as a judge of a higher court is virtually immune to any disciplinary action, as the constitutional provisions for impeachment have become a dead letter after the failure of Ramasamy impeachment. In spite of unbridled autonomy, the functioning of Indian judiciary is far from satisfactory. Take for instance, the shocking inability of the Supreme Court to protect citizens’ liberties from executive excesses as amply demonstrated by the egregious verdict in Shukla vs ADM Jabalpur (Habeas Corpus case) during emergency (1975-77). Sadly, even in normal adjudication, law’s delays have caused havoc. The abnormal pendency of cases (25 million) in various courts made justice expensive and delayed. The incomprehensible procedures made it inaccessible to most ordinary people. Thanks to failure of justice system, rough and ready justice for a price has become the norm. There are increasing concerns about falling standards of probity in judiciary too. A string of scandals – alleged involvement of judges in corruption in public service commission in Punjab, Shamit Mukherjee’s complicity in the DDA scam, and brow beating of journalists who wrote about the Karnataka scandal – exposed and embarrassed the judiciary as never before. Ceaser’s wife, alas, is no longer above suspicion! Moreover, the judiciary has also been overstepping its constitutionally mandated role even where the fundamental rights of the citizen are not involved. Take for instance the recent Patna High Court judgement, wherein it stated that the undertrials should not be allowed to contest elections. The only requirement to contest elections is for an eligible voter to file nomination papers. To disqualify undertrials even without framing charges goes against very foundations of criminal jurisprudence and democratic order. It will only strengthen the autocratic tendencies of the executive. Further, Section 8 of the Representation of People Act 1951 (RPA) prescribes disqualification of persons convicted of certain specified offences. Nowhere in the RPA was it mentioned that the undertrials should be disqualified from contesting elections. Courts have no jurisdiction to prescribe new disqualifications for contesting. That role rightfully belongs to Parliament and new qualifications must be prescribed only by law after due deliberation, not by judicial fiats.

Similarly, the Election Commission of India (EC) has been consistently failing in providing a voter registration process, which is accessible to the citizen and effective in correcting flaws in electoral rolls.  As I have pointed out in my earlier columns, Lok Satta’s survey of electoral rolls, carried out in 1999, covering 57 rural and urban polling station areas demonstrated that there are 15% errors in rural areas and 44.8% in urban areas. The Election Commission and the postal department met at the urging of Lok Satta, and decided in principle to provide access to voter lists and statutory forms through the 250000 post offices in India and progressively make the post office as the nodal agency for voter registration. However, this was not yet implemented. The recent furore over lakhs of people with voter identity cards being disenfranchised in many states shows how deep rooted the problem is. Sadly the EC is failing in its primary duty of preparing accurate electoral rolls, and informing people in an accessible, citizen-friendly manner.

At the same time, the EC has arrogated to itself the role of deciding the timing of elections, even while it is yet to wake up from its slumber and act on the problems afflicting the voter registration. Contrary to parliamentary traditions, elections are delayed abnormally even after the dissolution of a House. This has resulted in prolonging the political uncertainty. From 1971 to 1991 elections were held swiftly, and the whole process of polling and counting was completed within a few days. Now, with advanced technology, better transport and instant communications, the electoral process should have been simpler and swifter. Instead, election is more and more mystified, delayed and centralized. The time has come when Parliament should, by law, prescribe the period before which election should be held in the event of dissolution of a House. Otherwise, the uncertainty on account of prolonged elections may undermine our democracy itself. If a future government’s decision to hold immediate elections in a troubled region is not honoured by the EC, even the unity and integrity of India may be jeopardized.

The functioning of both EC and the Supreme Court attest to the fact that mere assigning of autonomy to the un-elected institutions will not radically improve the functioning of Indian democracy. We are not suffering from too much of democracy. On the contrary, our democracy is tending to become a mere procedural democracy rather than a substantive one. Citizens do not have real choice among the candidates contesting elections. A citizen cannot participate in neighborhood development activity, as local governments have not been empowered. There is no link between the taxes paid and services provided as the government officials are not accountable to public in any form due to over centralization, secrecy and a culture of unaccountability. The future of democracy hinges not on insulating institutions/organizations from public pressure but on smashing into smithereens the walls that prevent active citizen participation in governance process.

This is not an argument against independency and autonomy of constitutional functionaries. Power certainly lends itself to abuse, and we need impartial and independent sentinels of our liberty. But in our mindless revulsion of politics and politicians, it would be dangerous to weaken elected legislatures and governments and excessively empower unelected institutions and functionaries, When the US Supreme Court transgressed into executive arena, Thomas Jefferson, the author of Declaration of Independence and the 3rd President gave a fitting reply. He pointed out that in matters judicial, judiciary was supreme, and in matters executive, the President was supreme. Any views and comments expressed by the judiciary were mere opinions, and had no sanctity whatsoever.

All organs of state and all functionaries need to act with restraint. Above all, we must recognize that the people are the true sovereigns in a democracy, and this sovereignty is transferred in part to elected politicians for a period. In the ultimate analysis there can be no substitute to primacy of politics and elected governments. Independent, unelected institutions are there to enforce rule of law, and to protect the citizen from the vagaries of partisanship. But they can never be substitute to democratically elected governments and legislatures. Or else, the tyranny of the unelected can be far more damaging than the perfidy of elected politicians.