The Old Challenges to Indian Democracy

Two ways it bears on democracy. As exclusion, keeping whole groups out of public life; and as mobilisation, organising votes by community rather than by programme, which chapter 840 treats as decay.

What was done. Abolition of untouchability, reservation of seats in legislatures and of posts in public employment, and later reservation in local bodies at chapter 940.

The honest assessment. Caste has not disappeared and its political effect has changed direction: it excluded groups from power for a very long time, and it has more recently been the vehicle by which some of them obtained it.

4. Communalism

The problem. The organisation of politics by religious community, which India experienced at its most destructive at Partition.

Why it threatens democracy. It converts an election from a choice of policies into a count of communities, so a permanent minority can never win and has no reason to accept the result. It attacks the condition at chapter 830 of common citizenship.

What was done. A secular constitutional structure, freedom of religion, prohibition of discrimination, and the treatment of appeals to religion in elections as a corrupt practice.

And the judicial statement. In S. R. Bommai v. Union of India, (1994) 3 SCC 1, several judges of a bench of nine held that secularism is a basic feature of the Constitution, observing that by the Forty-second Amendment what had been implicit was made explicit.

5. Regionalism and linguistic division

The problem. A country of many languages and strong regional identities, with movements for separate States and, in places, for separation.

What was done. Linguistic reorganisation of States, a federal structure, the language provisions, and the accommodation of regional parties in national coalitions, which chapter 800 treated as one of the benefits of coalition government.

The assessment. This is the challenge India has handled best. Accommodation rather than suppression has kept regional demands inside the constitutional system, and the survival of regional parties at chapter 810 is part of the same fact.

6. Misuse of central power over the States

The problem. Article 356 permits the President, on a Governor's report or otherwise, to assume the functions of a State government. It was used many times, and repeatedly against governments whose only difficulty was that they were of a different party from the Union government.

Facts and holding. S. R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of several proclamations under article 356 dissolving Assemblies, and required the Court to consider the scope of the power, the role of Governors and the extent of judicial review, with reference to articles 74(2), 163, 355 and 357. The Court held that a proclamation is subject to judicial review, that the power is conditional and the President's satisfaction must rest on relevant material, and that the proper test of whether a Ministry retains confidence is a floor test in the House. A proclamation is therefore liable to be struck down where President's rule is imposed without exploring the possibility of an alternative government commanding support or ordering fresh elections, and where a Governor, despite the advice of a Ministry that has not been defeated on the floor of the House, declines to dissolve the Assembly and recommends its supersession on a merely subjective assessment.

Why it matters. It converted the dismissal of a State government from a political instrument into a legal question, and the frequency of such dismissals fell sharply afterwards.

7. The Emergency, and the demonstration that the Constitution could be used against itself

The problem. Between 1975 and 1977 an emergency was proclaimed, fundamental rights were suspended, opposition leaders were detained, the press was censored and elections were postponed. None of this was done outside the Constitution; the machinery permitted it.

The constitutional amendment that accompanied it. The Thirty-ninth Amendment inserted article 329A, clause (4) of which declared that an election of a person holding the office of Prime Minister, which a court had declared void, should continue to be valid and that the court's order and findings should be deemed always to have been void.

Facts and holding. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, is set out at chapter 230. The Court struck down clause (4) in its entirety: democracy is a basic feature and free and fair elections are part of that democratic structure, so a provision declaring valid an election which a court had found invalid for corrupt practices destroyed an essential feature; and the constituent power, being legislative in nature, cannot exercise judicial power by validating one election without laying down any law.

What followed. The government was defeated at the election of 1977 and handed over, which is the acceptance of defeat at chapter 830 operating at the hardest possible moment; and the Forty-fourth Amendment tightened the conditions for proclaiming an emergency, requiring armed rebellion rather than internal disturbance and a written recommendation of the Cabinet.

The Emergency is the most important item on this list for an answer, because it is the only occasion on which the whole arrangement was suspended, and because the way it ended is the strongest evidence about Indian democracy that exists.

A worked example

A State government of a party opposed to the Union is dismissed, the Assembly is dissolved, and the Governor's report says the Ministry has lost the confidence of the House.

Before 1994 the question would have been political. The proclamation would have been laid before Parliament, where the Union government had a majority, and there was no effective remedy.

After Bommai the question is legal. Was the Ministry defeated on the floor of the House? If not, why was it not required to demonstrate its majority by a floor test? Was the possibility of an alternative government explored? Was the material before the President relevant? Each of these is a ground of challenge, and a court may restore a dissolved Assembly.

Notice what changed. The article was not amended and the power was not removed. What changed is that its exercise became reviewable and a standard was supplied, which is how most of the old challenges were addressed: not by removing a power but by subjecting it to law.

Distinctions that carry marks

What these challenges are NOT

They are not past. Old means original, not resolved.

They were not all answered the same way. Two were answered by courts, one by an election, several by legislation, and the social ones have not been answered at all.

Caste mobilisation is not simply a challenge. It has been the route by which excluded groups obtained power, and an answer that treats it only as a problem is one-sided.

And the Emergency is not only a warning. How it ended is the strongest evidence available that the conditions at chapter 830 held.

Quick revision

1. Old means original, present from 1950, arising from India's social and constitutional structure. Most persist.
2. Seven: poverty and inequality; illiteracy; caste; communalism; regionalism; misuse of article 356; and the Emergency.
3. S. R. Bommai, (1994) 3 SCC 1: a proclamation under article 356 is subject to judicial review, the power is conditional and must rest on relevant material, and the test of confidence is a floor test in the House; and secularism is a basic feature of the Constitution.
4. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: clause (4) of article 329A struck down; democracy is a basic feature and free and fair elections are part of the democratic structure; the constituent power cannot exercise judicial power.
5. The Emergency ended by an election the government lost and conceded, and the Forty-fourth Amendment tightened the conditions for proclaiming one.
6. Regionalism was handled best, by accommodation rather than suppression, and the survival of regional parties is part of the same fact.
7. The pattern of the answers: powers were not removed, they were subjected to law, and their exercise made reviewable against a standard.

Test yourself

1. What makes a challenge "old", and why does the category not mean "resolved"? Old means original: present from 1950, identified in the Constituent Assembly, and arising from India's social and constitutional structure rather than from any later development. It does not mean resolved, because poverty has fallen while inequality has not, caste and communalism persist, and the constitutional possibility of an emergency remains even after the Forty-fourth Amendment. An answer which says the old challenges have been overcome misdescribes every item on the list except the misuse of article 356.

2. How did Bommai change the position on article 356? By making its exercise a legal question. The Court held that a proclamation is subject to judicial review, that the power is conditional and the President's satisfaction must rest on relevant material, and that the proper test of whether a Ministry retains confidence is a floor test in the House. A proclamation is therefore liable to be set aside where President's rule is imposed without exploring an alternative government or ordering fresh elections, and where a Governor recommends supersession of a Ministry that has not been defeated on the floor on a merely subjective assessment. The article was not amended and the power was not removed; its exercise was subjected to a standard.

3. Why is the Emergency the most important item on the list? Because it was the only occasion on which the entire arrangement was suspended, and it was done through the Constitution's own machinery rather than outside it: rights were suspended, opponents detained, the press censored and elections postponed, and the Thirty-ninth Amendment inserted article 329A to validate the Prime Minister's election which a court had set aside. It matters even more for how it ended: the Court struck down clause (4) of article 329A, holding democracy a basic feature and free and fair elections part of the democratic structure; the government was defeated in 1977 and handed over; and the Forty-fourth Amendment tightened the conditions for proclaiming an emergency.

4. How should caste be treated in an answer on the challenges to Indian democracy? On both of its aspects. As exclusion, it kept whole groups out of public life for centuries, and the Constitution answered it by abolishing untouchability, prohibiting discrimination and reserving seats and posts. As mobilisation, it organises votes by community rather than by programme, which converts an election from a choice of policies into a count of groups and belongs with the ethical decay of democracy. But the same mobilisation has been the means by which excluded groups obtained office from parties that had claimed to speak for everybody while recruiting narrowly, so an answer treating it only as a problem is one-sided.

5. Which challenge has India handled best, and why? Regionalism and linguistic division, by accommodation rather than suppression. States were reorganised on linguistic lines, a federal structure gave regional identities an arena in which they could govern, the language provisions avoided the imposition of a single language, and regional parties were absorbed into national coalitions where they carried State concerns into Union decisions. The survival and entrenchment of regional parties, which chapter 810 treats as the strongest guarantee of a multi-party system, is the same fact seen from a different side.