Democracy and the Consent of the Governed

The protection of the dissenter. A majority decides, and the minority's right to argue, to organise and to become a majority is what makes the arrangement acceptable to those who lost. Without it majority rule is simply the rule of the stronger, which is the force theory at chapter 350.

The formula to write. In a democracy, consent is not an event but a practice: authorisation renewed, accountability enforced, and dissent protected. That is how the institution answers the objections chapter 340 raised against consent theory.

What consent requires the voter to have

This is the analytical heart of the topic, and it is what the Indian case supplies.

Consent is worthless if it is given in ignorance. A person who agrees to something without knowing what it is has not agreed to it, which is why the law of contract requires disclosure of material facts and treats consent obtained by concealment as no consent. The same reasoning applies to a vote.

Facts. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294. The Association petitioned the Delhi High Court for a direction implementing the Law Commission of India's 170th Report, which had reviewed the Representation of the People Act 1951 with a view to making the electoral process more fair, transparent and equitable and reducing the distortions that had crept into the Indian electoral system, and for consequential changes under the Conduct of Election Rules 1961. The High Court issued directions requiring candidates to disclose particulars about themselves, and the Union appealed. The questions were whether a voter has a right to know the relevant particulars of candidates, and whether the High Court had jurisdiction under article 226 to issue such directions.

Held. The voter has a right to know the antecedents of a candidate, derived from the freedom of speech and expression under article 19(1)(a), because the casting of a vote is itself an expression of opinion and a voter cannot make a meaningful choice without information. The Court directed the Election Commission, in exercise of its powers under article 324, to require every candidate to furnish on affidavit information about convictions and pending criminal cases, about the assets and liabilities of the candidate, the spouse and dependants, and about educational qualifications.

Why it matters. It converts consent of the governed from a phrase into an enforceable requirement. The affidavit every Indian candidate now files is the direct product of that decision, and the same reasoning was carried into the funding of parties in the electoral bonds judgment at chapter 860.

The objections to consent through elections

An answer that gives the objections is stronger, and each has an answer.

A vote every five years is very thin consent. Answer: it is supplemented by continuous participation, by the courts, and by the fact that a government must anticipate the next election in everything it does.

The voter who loses consented to nothing. Answer: they consented to the procedure, and their right to argue, organise and win next time is what makes the loss bearable. This is why protection of the minority is constitutive of democracy and not an addition to it.

Turnout is never complete. Answer: the opportunity is what matters; and low turnout among particular groups is a real problem for legitimacy and is a reason to remove the obstacles.

Choice is limited to what the parties offer. A genuine objection, and it is chapter 100's elite theory applied to elections: the voter chooses between alternatives somebody else selected.

Money and media distort the choice. Chapter 860.

And the deepest objection. A majority may decide something a minority cannot accept, and no amount of procedure makes an unjust decision just. This is the objection Module II answered with the whole apparatus of unjust laws and resistance, and it is why democracy and constitutionalism are two different things.

A worked example

A State government elected on a promise to build a canal decides after two years to abandon it and build a road instead.

Has it exceeded its authorisation? On the mandate theory, arguably: the voters chose the canal. On the correct view, no: an election authorises a body to decide, not a list of promises to be executed mechanically, and circumstances change.

What the consent framework actually requires. That the change be made openly and be defended in the legislature; that those affected be able to press their objection through speech, assembly, petition and the press; that the decision be reviewable in a court if it exceeds the government's legal power; and that the government answer for it at the next election.

Where consent would fail. If the decision were taken in secret, if the reasons were not disclosed, if protest were prohibited, or if the next election were postponed. Each of those removes one of the four elements above.

Notice that the objection is never simply that the government changed its mind. It is about whether the machinery through which the governed can respond is intact, which is what the consent of the governed means in a working democracy.

Distinctions that carry marks

What this topic is NOT

It is not the claim that a majority is always right. Democracy is a way of deciding and of removing those who decide, not a guarantee about the content of the decision.

It is not the same as constitutionalism. A democracy without limits on what a majority may do is majoritarianism, and the Constitution's fundamental rights exist because the two are different.

Consent is not agreement with each measure. It is authorisation of a body to decide, which is why content independence at chapter 240 matters here.

And an election is not consent if the voter is kept ignorant. That is the whole point of the 2002 decision.

Quick revision

1. Democracy is demos plus kratos. Separate the two questions: who rules, and how.
2. Forms: direct, representative, participatory, deliberative.
3. Consent in a democracy is a practice, not an event: authorisation, accountability, removal without violence, participation between elections, and protection of the dissenter.
4. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294: the voter has a right to know the antecedents of a candidate, derived from article 19(1)(a), because casting a vote is an expression of opinion and a meaningful choice requires information; the Election Commission was directed under article 324 to require affidavits on criminal cases, assets and liabilities, and educational qualifications.
5. Objections: a vote every five years is thin; the loser consented to nothing; turnout is incomplete; choice is limited to what parties offer; money and media distort; and a majority may decide something unjust.
6. The last objection is why democracy and constitutionalism are different, and why Module II exists.

Test yourself

1. How does democracy answer the failure of consent theory? By replacing an original act of agreement with a continuing practice. An election authorises a body to govern for a term, which is not agreement with each measure but authorisation to decide. Accountability requires the government to return and ask again, which consent alone could never supply, since a person who agreed once cannot withdraw. Removal without violence follows. Speech, assembly, association, petition and litigation allow the governed to press their views between elections. And the protection of the dissenter's right to argue and to become a majority is what makes the arrangement acceptable to those who lost.

2. What did the 2002 Association for Democratic Reforms case decide, and why does it matter here? That a voter has a right to know the antecedents of a candidate, derived from the freedom of speech and expression in article 19(1)(a), because the casting of a vote is itself an expression of opinion and a meaningful choice cannot be made without information; and that the Election Commission, under article 324, must require every candidate to furnish on affidavit information about convictions and pending criminal cases, about the assets and liabilities of the candidate, spouse and dependants, and about educational qualifications. It matters because it converts the consent of the governed from a phrase into an enforceable requirement: consent given in ignorance is not consent.

3. Why is the protection of the minority constitutive of democracy rather than an addition to it? Because without it majority rule is only the rule of the stronger, which is the force theory of political obligation and supplies no obligation at all. What makes a defeated minority's position acceptable is not that they agreed with the outcome but that they retain the right to argue, to organise, to persuade and to become a majority themselves. Remove the freedoms of speech, assembly and association, or the possibility of alternation, and an election becomes a count of relative strength rather than a means by which the governed authorise a government.

4. State the principal objections to treating an election as consent. That a vote every five years is very thin consent for everything a government does. That those who voted against the winner consented to nothing. That turnout is never complete, and is lowest among those most in need of representation. That the choice is limited to alternatives selected by parties, which is elite theory applied to elections. That money and media distort what the voter hears. And most fundamentally, that a majority may decide something a minority cannot accept, and no procedure makes an unjust decision just.

5. Distinguish democracy from constitutionalism. Democracy answers the question who decides and how they may be removed; constitutionalism answers the question what may be decided at all. A democracy without limits on what a majority may do is majoritarianism, in which a decision is legitimate merely because more people supported it. Constitutionalism places certain things beyond the reach of any majority, which is why the Indian Constitution's fundamental rights are enforceable against a government that won an election. Confusing the two is the commonest error in this area, and it is what makes the problem of unjust laws in Module II intelligible.