December 4, 2022

Democracy and Free & Fair Election as Basic Features- Analysis through Judgments

The edifice of our Constitution is built upon and stands on several props which, if removed would result in the Constitution collapsing and which include the principles of 'Sovereign Democratic Republic' and 'Parliamentary democracy', a polity which is "based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them.

It has been authoritatively held, time and again, by supreme Court that democracy is a basic feature of the Constitution of India, one that is not amenable to the power of amendment of the Parliament under the Constitution. It has also been the consistent view of the Court that the edifice of democracy in this country rests on a system of free and fair elections. These principles are discernible not only from the preamble, which has always been considered as part of the Constitution, but also from its various provisions.

Republican and Democratic from of government and Sovereignty as Basic features of constitution

In Kesavananda Bharati v. Union of India, (1973), Justice Sikri clearly referred to “Republican and Democratic form of Government” as one of the features constituting the basic structure of the Constitution.

In the same case, Shelat & Grover JJ, in their separate judgment, also found “Republican and Democratic form of government and sovereignty of the country” amongst “the basic elements of the constitutional structure” as discernible from “the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368”.

Hegde and Mukherjee JJ, observed in their judgment that “the basic elements and fundamental features of the Constitution” found “spread out in various other parts of the Constitution” are also set out “in the provisions relating to the sovereignty of the country, the Republican and the Democratic character of the Constitution”.

In the words of Jaganmohan Reddy, J in his separate judgment, the “elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution” and the “edifice of our Constitution is built upon and stands on several props” which, if removed would result in the Constitution collapsing and which include the principles of ‘Sovereign Democratic Republic’ and ‘Parliamentary democracy’, a polity which is “based on a representative system in which people holding opposing view to one another can be candidates and invite the electorate to vote for them”.

The following observations in Paragraph 198 of the judgment in Indira Nehru Gandhi v. Raj Narayan (1975), also need to be noticed: –

“198. This Court in the case of Kesavananda Bharati held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution.

Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice.

Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections.”

Free and Fair election as basic feature of Constitution

Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405], is another case that is significant.

In Paragraph 2, the following words indicated the controversy in the preface: –

“2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words:

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.”

If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men “dressed in little, brief authority”. For “be you ever so high, the law is above you”.

The Court spoke in Paragraph 23 about the philosophy of election in a democracy, which reads as under: –

“Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, the minimum credential of popular Government is appeal to the people after every term for a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions.

“The right of election is the very essence of the constitution” (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.”

The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp. SCC 53] is also relevant for purposes at hand. While construing the provisions of the RP Act, 1951, the Court expressed the following views: –

 “An Act to give effect to the basic feature of the Constitution adumbrated and boldly proclaimed in the preamble to the Constitution viz. the people of India constituting into a sovereign, secular, democratic republic, has to be interpreted in a way that helps achieve the constitutional goal.

The goal on the constitutional horizon being of democratic republic, a free and fair election, a fountain spring and cornerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the country is provided in the Act.”.

The case reported as Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp (2) SCC 651], also resulted in similar views being reiterated by this Court in the following words: –

“179. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.”

In the case reported as Union of India v. Association for Democratic Reforms & Anr. [(2002) 5 SCC 294], this court reiterated as under: –

“21. Further, it is to be stated that:

(a) one of the basic structures of our Constitution is “republican and democratic form of government”;

(b) the election to the House of the People and the Legislative Assembly is on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election (Article 326);

In People’s Union for Civil Liberties (PUCL) v. Union of India, (1996), the Court held that,

“It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution.”

There can thus be no doubt about the fact that democracy is a basic feature of the Constitution of India and the concept of democratic form of government depends on a free and fair election system.

Reference

Kuldip Nayar v. Union of India (2003)