Do We Have Democracy?

‘Do we have democracy?’ This question has become most relevant after the recent nuclear deal between the Government of India and the US since the Indian Government and its spokesmen are taking the stand that the executive has the power to enter into deals, treaties and agreements with foreign governments and organisations, without the approval of and without even reference to the legislature and the people. The government’s contention, in other words, is that it has inherent powers to administer the country’s affairs with the foreign governments and bodies, which are independent of the legislature, the people and the Constitution. While the government may, therefore, be responsible to the people and the legislature for the internal administration, the external administration is beyond their reach and the government is not responsible to them for the same. In other words, the Constitution, rule of law and democracy are all confined to the internal affairs and do not extend to the foreign dealings. We have, therefore, only a partial democracy in this country confined to internal governance, and external dealings, even if they are concerned with internal governance (and all of them are, directly or indirectly), are beyond the rule of law, and fall within the realm of the extra-constitutional autocratic powers of the executive.

The country has to be administered both in respect of its internal and external affairs. Both are concerned with the well-being of the people and affect them in a big or small way depending on the subject matter. In a democratic country, therefore, the people must have control over both, and should have a say in how both are administered. Democracy is indivisible, and though the democratic power may be decentralised and distributed among different institutions of the society, no part of it can be alienated in favour of any institution so as to be impervious and unaccountable to the people. Democracy by its very nature is antithetical to the autocratic exercise of power by any of its institutions, and more so by any of its governing arms, be it the legislature, the executive or the judiciary.

The rule of law is the foundation of democracy. It is the enacted law and not the arbitrary, discretionary, exigent or ad hoc exercise of power by an individual or a group of individuals which governs the affairs of the democratic country, and even where emergency or exigency impels an urgent action, it has to be later sanctioned by a legislative measure, as soon as possible. Every executive act has to be sanctioned by law and hence, in a democracy there is no scope for any action by any institution, whether executive or other, which is not supported by law. The moment any institution makes a claim to act without the authority of law, on any subject whatsoever, it transgresses its democratic limit. It seeks the exercise of autocratic powers.

THE powers of the three wings of our state—the executive, the legislature and the judiciary—are defined by our Constitution. They cannot exceed them. The executive powers are co-intensive with the legislative powers. In other words, the executive can exercise powers only on those subjects on which the legislature can make laws, and the executive cannot act unless there is a law made by the legislature and except within the framework of such a law. That is why when the legislature is not in session, and there is an urgent need for the executive to act, an ordinance has to be issued which is to be placed before the legislature within six weeks of its reassembly. The issuance of the ordinance is itself a legislative act of the President or the Governor, as the case may be.

Some argue that notwithstanding democracy and the Constitution, the executive has a reservoir of autocratic extra-constitutional powers, which it can use whenever necessary and on its own without pre- or post-reference to the legislature. This quaint reasoning has obviously its origin in the old mindset tuned to the predemocratic authoritarian regime. It is only an absolutist ruler who can invoke such “divine” powers, not supported by law. The democratic regime is a rule of law, and not a rule of individual will or arbitrariness. Every act has to be supported by law, either pre-enacted or in urgent cases post- enacted. To argue that notwithstanding the transition from authoritarianism to democracy and the adoption of the Constitution, the remnants of the historic powers of the ruler still govern the polity, is to plead for extra-constitutional and undemocratic powers in favour of the executive. It is this misconception about the basis of democracy which has led some also to put forward a perverse contention that since there is no provision in the Constitution to prevent the executive from exercising the extra-constitutional powers, neither the legislature nor the citizens can question its exercise. The proper question to be asked in a constitutional democracy is whether the action of the executive is supported by any law. The mere fact that the executive has been using such extra-constitutional powers all along hitherto, is no argument to support its validity. It need not be emphasised that an illegal practice, however long, does not make it legal.