How Democracy Works in India

Written By Nyan Myo Aung

There are many political scientists who argue that a country needs
a certain level of economic development to sustain democracy, and
it is difficult to maintain the democratic rule in ethnically, linguistically,
religiously, and socially divided societies. The abnormal country that
negates all the above arguments, is India.

India is comprised of twenty-eight States and seven Union Territories.
It consists of several groups different in ethnics, languages, religions and
social castes. Most of the population lives in the rural areas and they are
mostly the poor. But it could sustain the democratic system, from the
post-independence to the present except the short period of Emergency
Rule declared by Indira Gandhi. It does not mean that India has the perfect
political system. India has many ethnic-based, religion-based, region-based
conflicts, violence and rebellions, and widespread human rights violations.
But until now, neither factor could break down the democratic system in India.
With the transparent, fair and routine elections, the competition within the
democratic election becomes the only game in town to get the political power
of the country .The questions that are interesting to be asked, is “Why could
India maintain its democracy? How does its system work? What are its
weaknesses and strengths?” I have tried to answer those questions in the
followings.

1. Introduction

Indian constitution went into effect in 1950. There are 465 articles in it. It
had been amended a hundred times between 1950 and 2015. Indian state is
a parliamentary republic, and is unitary in structure, but federal in practice.
It was the former British colony. The current Head of the State is President
Pranab Mukherjeee. He is an independent person, not related to any party.
But he was a former member of Indian National Congress (INC). Each term
for Head of the State is five years, but how many times one person could take
that post, is not limited and written exactly in the constitution. The Prime Minister,
party leader from Bharatiya Janata Party (BJP), is Narenda Modi. In India, Lower
House is called the House of People or Lok Sabha, and Upper House is called the
Council of States or Rajya Sabha. Now, the BJP-led Alliance, National
Democratic Alliance, has occupied the majority seats in the Lower House.
But in Upper House, Congress-led Alliance called United Progressive Alliance,
has controlled the majority seats. The Supreme Court is the highest court in India.

2. Government Formation

2(A). Executive

The President is the Head of the State. He is elected by the Electoral College. It consists of
elected members from both Houses of Parliament, and elected members from the Legislative
Assemblies of the States. He may hold his office for a term of five years. The Prime Minister is
the Head of Government. He is appointed by the President. The latter used to appoint the party
leader, as the Prime Minister, who wins the majority seats in the Lower House.
The President is the supreme commander of the Defense Forces of the Union of India. But the
true power lies in the hand of the Prime Minister as a Head of Government. The President has
the constitutional right to appoint other Ministers on the advice of the Prime Minister. That
means the President has to approve the list of would-be Ministers proposed by the Prime
Minister.
2(B). Legislature
India has two Houses of Parliament; the one is House of People ( the Lok Sabha or Lower
House), and the other, Council of States ( the Rajya Sabha or Upper House). Election of
members of House of People is based on the population. It consists of 530 members chosen by
direct election from territorial constituencies in the States, and 12 members to represent the
Union Territories..
The members of the Council of States are elected by the elected members of the Legislative
Assembly of the State, and they have to represent their respective State. The exception is
twelve members of the Council of States are nominated by the President. It has totally 246
seats.
If the Bill passed by one House of Parliament, were rejected by other House, joint-sitting of the
two Houses is required to resolve disagreements between them. The Bill with amendments is
approved and passed by majority of total number of members of both houses. That means the
Lower House which has the largest number of seats, shall always prevail.
2(C). Judiciary
Supreme Court is the Highest Court in India, and it consists of a Chief Justice of India and not
more than seven other Judges. The President appoints every Judge in the Supreme Court, and
in the High Courts of the States. They could hold their office until they attain the age of sixtyfive
years if they were Judges of the Supreme Court, and until they attain the age of sixty-two
years if they were Judges in the High Court. In appointing the Judges of the High Court, the
President has to consult with the Chief Justice of the Supreme Court and respective Governor.
He needs to consult with them to transfer one Judge from one High Court to any other High
Court. District Judges are appointed by the Governor of the State after consulting with the High
Court in her State.
Judges of the Supreme Court could not be removed easily. To remove them, requires the
support of the majority not less than two-thirds of the members of the House, on the ground of
proved misbehavior or incapacity. Unless there was no such proofs, they could maintain their
posts until they attain the age of sixty-five years.
3. Parliamentary or Presidential System?
In parliamentary system, the government has to be responsible to the legislature. It could be
removed with the support of majority in the legislature, “without any cause.” All the
administration of the State is done by the Prime Minister and his Ministers who are heading
their respective department. There may be a president in the parliamentary system, but he is
just the ceremonial head of the State.
It is different in presidential system. The president is directly or indirectly elected in
presidential system. He could not be removed by the legislature, without cause except in cases
like violation of the constitution or incapacity to take his duty. In mixed system, the government
is responsible to the elected president but the government including the president has to be
responsible to the legislature.
In India, a president is indirectly elected by the Electoral College, which consists of the
members of both Houses of Parliament, and members of Legislative Assemblies of the States.
Though the president in India is elected by the people, he is just the ceremonial Head of the
State. He has the power to appoint the Council of Ministers with the Prime Minister at its head.
But that Council of Ministers has to be responsible, collectively, to the House of the People
(Lower House or Lok Sabha) through the Prime Minister. That means they need to win the
majority support of the parliament, so that they could maintain their status quo. Therefore, the
political system of India could be correctly called the parliamentary system.
4. Checks-and-Balances
The Prime Minister and the Council of Ministers have to be collectively responsible to the Lower
House. Thus, if the majority in the Lower House did not have the confidence in the government,
they had to resign. But the Legislature could not easily remove the President without any cause
except in violation of the constitution. The proposal to impeach him, could be moved by not less
than one-fourth of the total number of members of the House. A majority of not less than twothirds
of the total membership of the House has to pass such resolution. When a charge is
preferred by either House of Parliament, the other House shall investigate the charge. The
President has the right to appear and to be represented at such investigation. After that
investigation, if the charge was sustained, he would be removed from the President Office.
The President is just the ceremonial head of the State. Day-to-day functioning of the
government is administered by the Prime Minister and her Council of Ministers. Prime Minister is
the party leader of the majority seats-winner in the Lower House. If his party were the only
party which dominates the Lower House, his power is enormous. He could pass every Bill as he
wish because members of the Lower House are his party members and they have to vote along
the party line. Thus, the Executive dominates, in this situation, over the Legislature.
But the Supreme Court has the right to make judicial review. It could declare bills passed by the
Legislature unconstitutional. And he could declare the orders and ordinances of the Executive
unconstitutional as well. The Supreme Court in India has the power of judicial review. As said
above, it could determine the constitutionality of every Bill passed by the Legislature, and every
ordinance and order directed by the Executive.
Unlike the British Parliament which has the parliamentary sovereignty of overriding every
decision made by the Executive or the Judiciary, Indian parliamentary system has the judicial
sovereignty just like the Supreme Court in Presidential United States of America. Thus, there is
likely to have competition between the Supreme Court and the Legislature. The Supreme Court
might not accept any constitutional amendment passed by the Legislature which would alter the
basic structure of the Constitution.
The Judiciary is independent of the Executive and the Legislature. Although the President
appoints the Chief Justice of the Supreme Court and other Judges of the Supreme Court in
consultation with the Chief Justice, the Executive could not dismiss the Judges as it wishes. The
Judges could hold their offices until they attain the age of sixty-five years. Chief Justice of the
State and District Judges could hold their offices until they attain the age of sixty-two years.
The Judge of the Supreme Court could be removed on the ground of misconduct or incapacity.
And impeachment process is required to be met, too. Promotion and transfer of the Judges are
decided by the President but only in consultation with the Chief Justice of the Supreme Court.
If the President is satisfied that a grave emergency exists such as war or external aggression or
armed rebellion, he could declare the State of Emergency. But he is required to get the
confirmation of the Union Cabinet, in writing. That means the true power to declare emergency
rule, lies in the hand of Prime Minister. After that he has to send that declaration to each House
of Parliament. That declaration could be revoked by another proclamation or it ceases to exist
after six months unless the Parliament has extended the period of Emergency Rule. But if the
parliament was dominated by one majority party and the government had the confidence of the
parliament, the federal government could extend the emergency rule or could declare it in any
State, as it pleases.
5. Constitutional Discretion of Federal and State Governments
In relationship with the Legislative Assembly of the States, the parliament has the power to
exercise the residual power not described in the Concurrent List or State List. And when
differences of opinion occur between law made by the parliament and law made by the
legislative assembly of the States, the law of parliament always prevails according to the
constitutional provisions. During the period of the Proclamation of Emergency, the parliament
could exercise the power in the State List to make laws on behalf of the States.
The Indian parliamentary system is unitary in structure, though federal in practice. In practice,
there are power-sharing processes between the federal government and the States. The main
architect of the Indian Constitution, Ambedkar, framed it to give the federal government more
power. Thus, he denied to use the term “the United States of India” instead of “the Union of
India.”
6. Mechanism of Dispute-settlement between Federal and State Governements
It is the duty of the Supreme Court to settle the disputes between the Union Government and
one or more States, or between two or more States, and to interpret the constitution. And
when the President asks for the opinion of the Supreme Court on some matters, it has to give
its opinion to her. It also has the right to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, and prohibition. Besides, the Chief Justice of India has
the authority to appoint its officers and servants of the Supreme Court.
7. Guarantee of Individual Freedom
The Supreme Court upheld the Fundamental Rights enumerated in Part III of the constitution.
It reviewed the constitutional amendments, and declared unconstitutional some amendments
passed by the parliament to override the fundamental rights and to alter the basic structure of
the constitution. But during the period (1975- 1977), the Supreme Court had accepted the
Prime Minister Indira Gandhi’s declaration of emergency rule. That is its worst history. There
are criticisms, too, on the Supreme Court because many cases are awaiting the trail. And there
are some controversies on Judicial Activism of Indian Supreme Court, when it extends the scope
of exercising its power, even intervening in some functions of the Executive and Parliament.
8. Political Parties and Coalitions
The post-independent parliament had been dominated by the Congress Party for decades. The
Congress Party is the main umbrella organization in fighting against the British, to get
independence. After independence, when the Muslim League, the most likely rivalry to the
Congress Party, tried to form Parkistan, the only dominant party was the Congress Party. But,
following the Emergency rule (1975- 1977) declared by the Prime Minister Indira Gandhi, leader
of the Congress Party, the public support of the party became low. Many region-based, ethnicbased,
ideology-based and caste-based parties emerged when they thought that they were
underrepresented. Hindu Nationalist Party named the Bharatiya Janata Party (BJP), won a
majority of seats. In later elections, both the Congress Party and BJP have to seek the partners
to form the broad alliances.
The Congress Party could form the broad alliances with many partners, because of its policy in
secularism. It becomes the partners of the parties in Muslim-dominated regions, Sikhdominated
regions, and the Communist Party of India- Marxist (CPI). At the beginning, due to
the BJP’s Hinduness Policy, Muslim Party, Sikh Party and CPI do not become the partners of
BJP. Thus, BJP has to become practical in forming the alliances, by putting aside its Hindunationalist
agenda. In this way, multi-party system arises in India because neither the Congress
nor the BJP alone could form the government.
9. Strengths
India practices the parliamentary system in which there is fusion of the executive and the
legislative power. When a party could form the majority government, it could formulate and
pass the policies as it wishes. It is the institutional flexibility that is good for the modern society
as well as developing democracies. In the modern society, there could arise a lot of challenges
to be met immediately by the government. In this situation, the parliamentary system could
adapt to the new challenges and perform effectively to meet the demands of the new
challenges. In the presidential system like US, there might have deadlock and delay when the
Legislature disagrees with the President.
In India, it is the multi-party system. No single party could form the majority government. Thus
the major party has to form the alliance with the small regional parties. It is good for the
democratic stability. In order to form the government, the major party has to make political
concessions with the small parties to accommodate their regional interests. It could bring all
parties under the democratic system. And gradually, the competition in democratic election
could become the only game in town to get the power and make the policy changes as they
desired.
When the Supreme Court has the judicial review, it could protect the fundamental rights of the
citizens. It could determine the constitutionality of the Bill passed by the Legislature and orders
and ordinances passed by the Executive. In this way, it could restrain the power of the
Executive and the Legislature not to impinge upon the rights of the citizens. The parliament
tried several times to restrict the power of the Judiciary, by amending the constitution.
The politicization of several groups different in religion, ethnic and caste, is the progress in
sustaining democracy. Inclusion of these social groups in the democratic competition will
contribute to the stability of democratic system in the long run. The alliance relationship
between them and the major parties like the Congress Party and BJP, could accommodate their
different demands. Other policies like three-language policy, secular policy (not complete
separation of the State and Church, but the equal treatment and promotion of every religion),
reserved seats for the Backward Castes and the Scheduled Tribes, and the self-governing
institution in the rural areas ( it is called Panchayats), contribute to their accommodation of
demands of the different social groups, within the democratic system.
10. Weaknesses
The Prime Minister could declare the State of Emergency through the President. Using this
power, the Federal Government could intrude into the power of the States. If one ethnic
majority party like Hindu Nationalist Party, won the majority of seats in the parliament and the
government had the complete confidence of the parliament, some ethnic minorities might,
though they may be the majority and could form the government in their respective State, be
tyrannized by the Federal Government of one ethnic majority. The Supreme Court needs to
restrain the power of the Executive when unnecessarily State of Emergency is declared by the
government.
Recently after the terrorist acts and demands for secession, the Legislature passed many laws
which give the police and military forces the power to arrest the civilian if they have suspicions.
Some laws allow the police to extract the confessions from the suspected person, using the
brutal means. The Judiciary accepts that kind of confessions as evidences. The Supreme Court
fails to reconcile the needs to handle the terrorism and the protection of fundamental rights of
its citizens. It should formulate the coherent criminal-justice system to meet the above two
demands. At the same time, it should review every laws passed by the parliament whether they
are constitutional or not, or whether they are infringing on the rights of citizens or not.
The Judiciary is now practicing the judicial activism. It introduced the Public Initiative Litigation
(PIL). It is the system where one person could send just a postcard to the Court to complain
about the problems such as pollution. After that introduction, the Judiciary tried to seek redress
for the people, shutting down some industries, and practice law-making power in promoting the
social conditions of the backward classes and solving malnourishment problems in some
regions. But there are many backlog cases to be handled by the Judiciary. Delay in trail is one
of the weaknesses in the Judiciary System.
Nyan Myo Aung
Bibilography
(1) The Constitution of India, (Government of India, Ministry of Law and Justice, 2007)
(2) Shri. P. A. Sangman, Shri. P. A,“Functioning of Parliamentary Democracy in India,” He said
political system in India is mainly based on the British Parliamentary Model.
(3) William Roberts Clark, Matt Golder, and Sona Nadenichek Golder, “ Principles of
Comparative Politics,” (CQ Press, 2009)
(4) See Steven I. Wilkinson, “Reading the Election Results,” One of the factors contributing to
the dominant rule of the Congress Party (1950- 1970), is the single- member district plurality
system (SMDP).
(5) See Pratap Bhanu Mehta, “The Rise of Judicial Sovereignty.” According to the Article 124
of the Indian Constitution, the president needs to consult with the Chief Justice of India in
appointing other Judges. It is difficult to say who is the final arbiter. But, after the decision on
The Third Judges’ Case (1993), the Supreme Court ruled that the Chief Justice and another
four most- senior Justices of the Supreme Court have to exercise the power to appoint the
Judges.
(6) See Pratap Bhanu Mehta, “ The Rise of Judicial Sovereignty”
(7) See Arvind Verma, “Police Agencies And Coercive Power,” In the colonial period, the
British administrators are a few senior officers, and indigenous Indian people who occupied
the posts of lower subordinates, are the majority. To prevent India from internal and external
rebellions, it passed the suppressive laws such as Police Act V (1857). After independence,
Nehru government enacted the Preventive Detention Act which allows the person, who is
suspected to pose a threat to the society, to be imprisoned. Sections 41 to 56, and 165 of the
Criminal Procedure Code allow the police officer to detain any person without getting
permission from the magistrate. Many laws enacted by the British, are the Vernacular Press
Act (1878), the Newspapers Act (1908), the Explosives Substances Act (1908), the Prevention
of Seditious Meetings Act (1911), the Official Secrets Act (1923), the Foreigners Ordinance
(1914), and the Defence of India Act (1915). Due to the secessionist movement and
communal violence, the Punjab Disturbed Areas Act, Bihar Maintenance of Public Order Act,
Bombay Public Safety Act, Madras Suppression of Disturbance Act were enacted in 1947-
1948. After independence, Preventive Detention Act was passed in 1950. The Armed Forces
Special Power Act (1958), the Maintenance of Internal Security Act (MISA), the Disturbed
Areas Act and the National Security Act were passed to give the military and police forces the
powerful authority in handling the terrorism, violence, riots and secessionist movements. But
many loopholes are created to infringe upon the fundamental rights of the citizens.