Wednesday, June 22, 2011

Voting to kill democracy

"So, this is how liberty dies: with thunderous applause."  - Senator Amidala, Star Wars II

Who has the final say in a constitutional democracy? The people or the constitution? India's Constitution, for example, was drafted and ratified by an indirectly elected Constituent Assembly. However indirectly they elected it, the people of India were the source of legitimacy of the Assembly. But, conversely, India did not become a republic, a democracy, and her people didn't have any of their fundamental rights (including their universal suffrage) until the Constitution was officially ratified. So, without a Constitution conferring voting rights on the people, where from did they derive their power to ratify the Constitution?

This might seem like a useless circular argument, but it serves to make my point that people exercised their right to vote even before the Constitution came into existence. The Constitution serves merely as a written record of what was agreed upon as the core of the law of the land, it need not be enshrined, and it should be remembered that it is not from the Constitution that we derive our power, but ourselves. But, that is not how the Constitution is seen today, it is seen as the immutable foundation for all that we build on.

Attempts to amend what is seen as the 'basic structure' of the Indian Constitution are resisted by the Indian Supreme Court. Some of the amendments that the Congress Government under Indira Gandhi, with its two-thirds majority, tried to push through during the Emergency were invalidated by the Supreme Court subsequently as subversive to the basic structure of the Constitution. So, if a Government with two-thirds majority cannot amend the basic structure of the constitution, then who can? There is no provision for referendum (though referendums have been conducted at a local level on a voluntary basis by the Government) in the Indian Constitution, so does that mean that the 'basic structure' of the Constitution is unalterable? Of course, I am not saying that I agree with the amendments that the Indira Gandhi Government passed: I am merely pointing out that it is odd that there is no apparent way to fundamentally change the Indian Constitution if we want to. 

Contrarily, people (or their representatives, as the case maybe) under extreme circumstances - as is shown beautifully in Star Wars - can be persuaded to voluntarily vote off their fundamental rights. The state of emergency that existed in India from 1975-77 or the one that has existed in Egypt for most of the past fifty years are cases in point. More recently, international observers of Turkey were worried that the AK Party under Mr. Erdogan would unilaterally create a new, more authoritarian constitution (a 2010 referendum voted for creating a new constitution) if they gained the required two-third vote in the 2011 elections, and were relieved when they didn't. 

So, maybe the Indian Supreme Court does have a legitimate reason for its attempts to protect the Indian Constitution from the vagaries of the Indian voters and their representatives. Perhaps new amendments could be made to the Constitution to make it more difficult to amend it (does anyone not see the irony of it?), by putting in more safeguards. But, when that is done, the Court must acknowledge that this is a democracy, and the people, through whatever means, must have a possible way to to amend their Constitution, even fundamentally if they want to. Again, it is possible that they might vote to change the Constitution in a manner that is detrimental to themselves, but that is their choice.

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